April 2011
STORERIDGE
Legal News I Interview with James Guthrie QC I Legal Services Act: What does the future hold for lawyers... and non-lawyers? I Revision Guides: To use, or not to use? I Interview with Judith Gordon I The evolution of Roman Law and adaptions for a modern society I Advocates for International Development
Contents 3
Legal News
7
Legal Services Act: what does the future hold for
5
9
11
15 17
Interview / James Guthrie QC lawyers...and non-lawyers?
Revision Guides: To use or not to use? Interview / Judith Gordon
Advocates for International Development
The evolution of Roman Law and adaptions for a modern society
Editor’s note Hello and welcome to the April 2011 edition of the Official College of Law Bloomsbury magazine. Storeridge is brought to you by contributors from across the College of Law; each of whom has negotiated coursework and exam pressures expertly throughout the last two months in order to produce what you now hold inquisitively in hand. Take a moment away from revision with Ruth Azzopardi; meet a trainee at Osborne Clarke with Laura Gallagher; and ponder the future of our profession with Olga Rakhmanina, amongst many other bona fide articles. My hope is for our submissions to inform curiosities and facilitate discussion in equal measure. data venia James Theaker Editor storeridge@lawcol.co.uk
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Legal News by Nivedita Raghavan
Hunt Saboteur in Landmark Ruling
Joe Hashman, a fervent animal rights activist with long-running campaigns that have granted him notoriety in hunting circles, has, in a landmark ruling, won the right for his anti-hunting beliefs to be protected from discrimination in the same way as religion. Hashman, a professional gardener, claims to have been sacked from his job in Dorset when his bosses learned that he was a ‘hunt saboteur’. Judge Lawrence Guyer, in the Southampton Employment Tribunal, ruled that Hashman’s animal rights beliefs were a “philosophical belief akin to religion under employment law.” The decision is expected to pave the way for animal rights activists nationwide. Under cross-examination for over two hours, Hashman was questioned on everything from his opinion on slicing worms in half, to the most humane way of ridding a garden of large white butterfly caterpillars. It was ultimately established that Hashman held a philosophical belief under employment regulations, and the case now proceeds to an unfair dismissal hearing. Stormtroopers in the Supreme Court UK Supreme Court Justices will this week decide on a case concerning replica Star Wars ‘Stormtrooper’ costumes, and the extent of copyright in 3D objects. In making the first Star Wars film, a series of drawings and paintings of the Stormtrooper helmets were made. These images are undisputed as copyright works. Andrew Ainsworth, the first respondent, was engaged to make the original 3D models on the basis of these drawings but later began selling replica models to customers. The question before the court is whether these clay models are granted any copyright protection. This in turn depends on the helmets constituting a ‘sculpture’, under the Copyright, Designs and Patents Act 1988. They were held not to constitute a ‘sculpture’ at First Instance, and the Court of Appeal upheld this finding; Lord Justice Jacob endorsing the earlier examination of the object’s “intrinsic quality of being intended to be enjoyed as a visual thing.” In essence the costumes were found to serve a utilitarian purpose as props and did not constitute a work of art, as required to obtain copyright protection. The Supreme Court will rule on this aspect of the dispute. A related and perhaps more crucial question is whether a claim for infringement of a US copyright (owned by LucasFilms) is enforceable by an English court - an issue which the Supreme Court is also expected to rule on.
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All’s fair in Love and… Insurance The European Court of Justice has ruled that from December 2012, insurers will no longer be able to charge different premiums on the basis of the insured person’s gender. The case dates back to council directive 2004/113, which implemented the principle of equal treatment between men and women in the access to and supply of goods and services. The latest controversy surrounds the notion that women are safer drivers than men and therefore whether insurers, which exist to calculate risk and subsequently buy it from the public, should remain able to factor this difference into the pricing of premiums. An alternative argument is that the insurance industry price discriminates against young male drivers, and that there is little transparency when it comes to calculating the “loadings” applied to their premiums. The ECJ ruling means that insurers can no longer use gender as an excuse for ‘mining profits’ from male drivers. In the related area of life insurance, women are noted to live longer on average than men. As this gender factor can no longer be taken into account, premiums are now likely to rise for men. Whilst the ruling has caused significant widespread concern, its precise long-term effects remain to be seen.
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Interview / James Guthrie QC by Robert Calleja
Situated in the inner sanctum of Middle Temple are the chambers latterly presided over by James Guthrie QC. Highly regarded amongst peers, and rated by Chambers UK as being ‘a first class advocate’, Guthrie has been called to the Bars of most Caribbean jurisdictions and operates a diverse practice advocating in cases ranging from election fraud to defending those pending ‘death row’. In a secondary role, the Master of the Bench of Inner Temple also sits as a recorder (judge) on criminal and civil cases. Far from entering the Gaetulian lair, as many may preconceive chambers to be, I was welcomed in an affable manner and my ques-
tions were answered with dulcet tones. Called to the Bar in 1975, Guthrie entered into the profession ‘almost by accident, I got interested in it when I saw what was going on in court… I did not realise how important the law could be to people.’ As the bells of Temple Church chimed four o’clock on a radiant Friday afternoon, I was consciously aware that the silk’s fervour for the values aspect of the profession remains undiminished. Guthrie has become something of a guru within the niche of Privy Council work, being partly involved in the ‘great triumph [of] the effective abolition of most of
the Caribbean’s mandatory aspect of the death penalty.’ Although the current status quo is not ideal, ‘the sting of it is to some extent taken out by the fact that not many people in these death penalty cases are necessarily going to get executed... it’s not as though everybody one represents is going to hang or not’. Guthrie is also a trustee of the Death Penalty Project, ‘a charity which looks after the interests of people on death row… its had quite a lot of success recently in Africa – in Kenya and Malawi – where they also got rid of the mandatory aspect of the death penalty as well’. Acting in a similar capacity to Reprieve, (which many readers will be familiar with and
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largely focuses on the USA), the Death Penalty Project has a global focus outside of the USA and has gained a foothold in China; is attempting to do the same in Singapore, and is already established in the Caribbean and Africa. Echoing advice from the last issue’s article about pathways into law – in this case the Bar side of the profession – the QC expressed some encouraging words for the aspiring barrister: ‘It’s important not to give up… it is a good way of living your life…I have had some fascinating cases and still do.’ Although acknowledging the unprecedented pressures on the Bar numbers-wise, with 3 Hare Court receiving ca. 300 applications for two pupillage spaces, ‘almost all’ pupils have been taken on as tenants ‘because if they are good enough to become pupils here, they are almost certainly good enough to become tenants here’. The chambers’ commitment to organic growth is apparent from the outset – Guthrie’s own room is shared with a new tenant,
and he admits that ‘one of the reasons we are hard up for space is that we haven’t really been wanting to turn people away… when I was Head of Chambers, I took the view that if people are good enough to be barristers I didn’t think it was fair to not at least put them on the spring board… if that meant more people would have to share rooms then too bad!’ The figures speak for themselves; during James Guthrie’s precedence the size of the chambers increased by around twenty per cent. So, aspiring barristers out there, don’t be put off by any OLPAS warnings – this silk offered encouraging words: ‘I get a bit fed up with everyone being too disheartening…if you really concentrate on going for it, obviously you stand quite a good chance of getting there. I like to encourage [people] to get on with it.’ So there’s the soundbyte: allay any discomfiture, keep calm, and carry on! Having survived the crunch of pupillage selection, the next stage is actually endeavouring to become a good barrister – on this question
I am given an instant, direct answer: ‘it is almost 100% application…having thought about it quite a lot over the years… I don’t think it takes a huge amount of intelligence, provided you have enough intelligence to get a reasonable degree, you have enough intelligence to become a barrister.’ Guthrie also mentioned his ‘high octane’ work in the Caribbean, referring to his work with political parties in election law and vividly illustrating the lively Caribbean court rooms with ‘everyone dressed in one colour on one side and everyone dressed in another on the other side, red for labour and blue for the progressive party’. Touching on a diverse selection of subjects, collected in an entrancing array of snippets from over three decades at 3 Hare Court, the sheer variety, intrigue and pathos of life at the Bar left a resounding impression that, in the least, would ensure lively conversation at any dinner party. Storeridge would like to thank James Guthrie for his contribution.
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Legal Services Act: what does the future hold for lawyers...and non-lawyers? by Olga Rakhmanina
The legal profession is set to change as the Legal Services Act 2007 introduces reforms that affect the delivery of legal services, as well as how the legal profession is structured and regulated. The Law Society believes that the Act is the biggest change in the regulation of legal services ‘for a generation’. The Legal Services Act (the “Act”) was passed in 2007; however certain provisions are not to be fully implemented until 2012. This article considers key provisions of the Act that will arguably contribute to a significant reshuffle in the legal services market. The Act created a single supervisory body, the Legal Services Board (LSB), which oversees the legal services undertaken by approved regulators, including the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB). Law firms are now subject to regulation alongside individual lawyers working in those firms. All sole practices and partnerships that existed at the time when the reform was implemented were automatically ‘passported’ to become recognised practices under the new regime. The Act also provides for an Office for Legal Complaints to deal with consumer complaints related to legal services. Furthermore, the Act allows for legal practices to adopt two new business structures. Lawyers have already been able to benefit from one since March 2009. ‘Legal Disciplinary Practices’ (LDPs) are firms that are owned by lawyers as well as by up to 25% of non-lawyers who must be managers in the relevant firm. In other words, non-lawyers are now permitted to become partners in law firms.
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Another type of business arrangement, ‘Alternative Business Structures’ (ABSs), are expected to become available later on in 2011 and will possibly have the most significant impact on the structure of the legal services industry. The Act permits law firms to have external ownership, thereby providing an alternative to conventional partnership arrangements. Firms will also be allowed to provide legal and non-legal services ‘under the same roof’. The framework for authorisation and operation of ABSs is still to be developed by the LSB and although full implications are yet to be established, a notable impact on the industry is expected. ABSs are expected to take two forms: ABSs that provide legal services only and ABSs that deliver packaged products including legal assistance. Some experts believe that ABSs will provide greater flexibility to lawyers in terms of how they provide legal services. New business structures will also enable non-lawyer firms to provide legal services, which is not currently the case. The reform is set to increase competition in the legal services market as well as facilitate the development of alternative solutions for how such services are delivered. Regulators are working hard to ensure that once ABSs are permitted to ‘The question is whether customers are operate, consumers will enjoy the prepared to look for professional legal advice same level of protection as they would do if they went to a conven- from firms with an ABS structure?’ tional law firm. However, ABSs are a cause for concern amongst those who hold more conservative views in the legal profession. Although competition will increase, they argue that it will not necessarily result in better quality of services if non-lawyer firms are permitted to provide legal services. Professional high street firms are likely to be affected most; some of them will have to leave the market as ABSs that deliver a number of different services in a ‘one stop shop’ will likely take their position. The question is whether customers are prepared to look for professional legal advice from firms with an ABS structure? A survey undertaken by KPMG concluded that although respondents were slightly sceptical, they would still be prepared to work with such ABS firms. The real impact of the Legal Services Act is not yet known, but it is likely that the structure of the legal profession will change over years to come. Students may wish to closely monitor developments in this area when considering career choices as well as when preparing for interviews to assist in demonstrating commercial awareness.
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Revision Guides: To use, or not to use? by Ruth Azzopardi and Dianne Marcos
With our first exam session over, many students will by now have considered whether using a revision guide provided any added value to their studies. There is a variety of published material available – for GDL subjects, large quantities of material are condensed into colourful flowcharts and other visual memory aids. Indeed, the open-book nature of assessment on the LPC means that revision guides can be taken into an exam and can sometimes lead to a false sense of security. A survey of students revealed a mixed attitude towards the use of revision guides. Students who used them highlighted the convenience of having the material condensed into manageable chunks of information. This meant that it was useful in giving a good overview and in guiding them through more detailed information. Those who did not use revision guides, however, cited precisely such a lack of detail as the main reason why they were unreliable tools for revision. They argue that the time spent reading revision guides could instead be used to refer to primary sources and to consolidate their own notes.
‘Guru’ notes for the GDL and LPC were created by a previous College of Law student, and conveniently summarise the core elements for each course. The author has marketed her notes as ‘College of Law specific’ and also informed readers that they helped her achieve a distinction on both courses. She does, however, admit that these notes are not the sole reason she obtained high marks; ‘obviously I had some great tutors at the College, so I have them to thank too!’ Importantly, she offers no guarantee that those who use these notes will achieve the same result she did, but that the ‘Guru’ notes can help because ‘there’s just too much reading to leave it all to the end, and if you don’t make notes as you go along then there’s too much to go over again’. Those who have used the Legal Practice Companion may have found that not all the material was relevant to the course. Students therefore have to be alert to which information to consider and which to leave out. This is one disadvantage of using a generic revision guide, but at least students can feel safe in the
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knowledge that qualified solicitors created it. This is one reason why some students may not feel comfortable with using the ‘Guru’ notes, since they were created by the author whilst still a student. The students who used revision guides seem to have been very much aware of the danger of relying too heavily on such resources. They were used merely as another reference point and should not get in the way of learning the main substance from the materials provided by the College. This was the main argument of those who did not use such guides; they deemed it better to refer to the textbook in the first place because everything you could need was already there. As for the tutors, some advocate that the best method of revising is by ‘doing’ and warn that passive reading will not suffice. Therefore students must not become complacent and remember to still learn the material provided by the College even if they use externally published revision guides.
It is acknowledged that everyone learns through different ways. Whilst some students have been very proficient at making their own notes, others have needed to refer to revision guides to aid their learning. Indeed, the ‘Guru’ author shares feedback from people who have been helped by the notes - ‘People with families and other commitments who simply don’t have the time to make their own notes, and people with dyslexia who may find the format of the notes easier to understand than the textbooks.’ Our survey showed that students who made the conscious decision not to use revision guides remain unlikely to use them in future, but that those who did will not necessarily do so again. Whatever students decide to do in the lead up to the next set of examinations, a general health warning should be issued: revision guides are exactly that - a guide - and nothing more without the appropriate effort and diligence of the individual student.
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Interview / Judith Gordon by Laura Gallagher
Judith studied Law at Warwick University before joining the College of Law. After a successful vacation scheme with Osborne Clarke she started her training contract at their London office in 2009. I met with her to gain an insight into life as a trainee and grab some tips from her on pinning down that blasted TC.
When did you first decide to do Law? Quite early on I think, either when I was doing my A Levels or GCSEs. I didn’t know that much about what being a lawyer would really involve but it seemed like a good career to pursue. What was your path into Law, did you go straight through from school? No I took a gap year before I started law school. I worked for seven months and then I travelled to Senegal, Australia, New Zealand and Fiji. It’s something that I felt I had to fit in before starting work because I knew it would be harder to do later on. How did you get the TC at Osborne Clarke? Well I did a vac scheme with Osborne Clarke in the summer after I finished university and after a final interview was offered a training contract. I also did a vac scheme at Eversheds in their Birmingham office and I gained informal work experience at a smaller firm after A-levels. So I did small, medium and big firms before I knew that OC was definitely for me. Have you found the skills you learnt from your LPC readily transferrable? I’ve really used the skills I learnt from my LPC. My first seat was a property seat and I found myself actually doing exactly what I had done on the LPC; you do fill in forms and you do investigate title. Even in corporate, one of the main trainee tasks is company searches, and the business law you learn on the LPC is really suited to that. True, you have to learn your firm’s way of doing things but I still have my LPC textbooks on my shelf. So for example if I’m sitting in litigation, I’d be able to flick to my consolidation notes and refresh my memory on the legal advice privilege. The legal research you have to do is really useful as well in terms of presenting your research.
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What seats have you done so far? First seat - Property and planning Second Seat – Corporate Mergers & Acquisitions Third Seat - Commercial litigation, where I am now. Fourth Seat - I will be moving into the commercial media team. Which have you enjoyed the most? I really can’t decide. It’s something people keep asking me because I need to start thinking about qualification, but I have been lucky with all my seats. I have had really busy seats and worked on a few good deals. I’m keeping an open mind at the moment because I didn’t come into my training contract with pre-formed ideas of where I wanted to qualify. I’m really looking forward to my fourth seat, as that’s my ‘choice seat’. So how does the choice system work? There isn’t really a choice as such; you have to do a property seat, a corporate or banking seat, and you have to do a contentious seat, which can be commercial litigation, IP litigation or even employment. For Law Society requirements, you have to do some contentious work as part of your training contract but it’s OC’s policy to do those core three seats and then you have a free choice, which for example could bea secondment. Did you want to do a secondment? I did, but when we were offered it I was just going onto my second seat and I didn’t necessarily feel ready but looking back it probably would have been a good time to do it. How did you find property? Doing it as my first seat was really good. In terms of time management, you’re balancing a lot of files and you get quite a lot of responsibility early on. You’re emailing the client, you have your own deadlines early on and of course you’re on the phone to the land registry a lot. I think a lot of firms use property as a first seat, it’s not necessarily a conscious effort here but it’s definitely a good place to start developing your skills. What sort of work have you been doing? For property I spent a lot of time on the phone to the land registry; was involved with drafting leases; looking at heads of terms, and doing the occasional licence to make alterations. I did property and planning, where we would do update notes on general planning policy, which had a political element. I also dealt with contracts for sale and did lots of form filling, filing notices, that kind of thing.
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For corporate you do a lot of drafting. They are really good here, if they are working on a deal then they will get you to draft all the ancillary documents, so board minutes, resolutions, powers of attorney, that kind of thing. So you play a big part in the underlying core documents. Then occasionally they’ll say, ‘do you want to have a go at marking up this disclosure letter?’ You do a lot of company search documents as well and they form the first step in your due diligence, which I quite enjoy as it has a detective element. You basically look through everything that was filed at Companies House, and whether there are any unusual documents, what their ‘Mem and Arts’ say and any restrictions. In litigation there’s not as much drafting as the transactional seats, but you do the obvious bundling for hearings; coordinating exhibit references of witness statements; drafting chronology of events, and occasionally drafting an application notice for a freezing order. We also do court runs here as well, which can sometimes be good as you get pulled up in front of a master and have to deal with questions on it. That hasn’t happened to me...yet! Would you say you have been exposed to ‘real work’? Yes definitely, a lot of what we do has value; you aren’t doing it for the sake of it. A lot of stuff you do is quite important for a transaction to go through so you feel like you’re playing a real part. Do you feel like there is a strong support system at OC? Yes definitely, when I joined I had a third seat trainee as my mentor on a buddy scheme and I felt comfortable taking to all my supervisors. My first two supervisors were partners so they weren’t always around but I could always talk to them. People always say their firm is ‘a nice firm’ but OC genuinely is a really friendly firm, one of the things here is that we are an open plan office and so there is less hierarchy, there is no partner behind a closed door and everyone knows everyone. What’s the social scene like within OC? There is no trainee ball or anything, but you do get a social budget. We have a Christmas meal and a summer party that is fancy dressed theme and that is for all the three offices. Of course someone may always organise the pub after work as well Has your TC lived up to your expectation? It has actually been better than I expected. I thought I might be given rubbish work with long hours but it really hasn’t been like that at all. There are a couple of late nights but if
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you stay then you are staying for a good reason. Osborne Clarke are good at promoting a life work balance, no one is chained to their desk here. What’s been your highlight so far? Probably a corporate completion after a late night! Worst moment? Accidentally hole-punching some original documents. The fee earner I was doing the work for was really nice about it but I felt pretty stupid! What tips would you give for getting a training contract? Just know your application really well, do not lie in it and keep up to date with the news by reading a good broadsheet newspaper. Keep up to date with legal news as well, so read the Lawyer and Legalweek and even Roll on Friday, and generally just be aware of recent developments. A typical day in the life of8.30-9.30 - Check my emails, make a to-do list or add to it from the previous day. Prioritise what needs to be done urgently, check the amazing invention that is the Outlook calendar. 9.30-10.30 - If I’m ahead on deadlines I would proof read something before I send it to a supervisor. 10:30-12:30 - I might attend a client meeting and then type up the attendance note. Lunchtime - There is a kitchen in the office or I may pop down and get a sandwich from the abundance of sandwich shops around Moorgate. 1.30-3.30 - Check emails, if something comes in such as a procedural order from an arbitration tribunal I would update the relevant files. I might also be asked to proof read something, such as a witness statement. 3.30-5.30 – I might be asked to draft an application notice for a court order. If approved in time, I would be asked to raise the cheque and get it all ready to go to court. 5.30-6.30 - Finish off matters, close down timers and try and make a to-do list so I can look at the following day and remember what needs to be done. I am usually gone by 6.30, and if it’s a Thursday or a Friday I may go for a drink with some of my fellow trainees. Storeridge would like to thank Judith Gordon for their contribution.
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Advocates for International Development by Olga Rakhmanina
People in some professions don’t just work nine to five. Take doctors, for example, and their commitment to save lives. The work they do is not confined to hospital walls but has a much wider scope. Indeed, with lawyers, the knowledge and expertise they possess are increasingly used with a view to pursuing not just commercial, but also community development goals. This year Advocates for International Development (A4ID) launched a training programme aimed at future lawyers who want to be involved in facilitating development in various countries around the world. A4ID unites the worlds of law and development toward achieving the United Nations Millennium Development Goals ( UN MDGs) - targets for combating poverty, hunger, disease, illiteracy, environmental degradation and discrimination against women before 2015. This is done by providing free legal support for those working to end poverty, and by raising awareness of what role the law and lawyers can play in social and economic development. There are numerous reasons why those in the legal world wish to contribute to such efforts to help the developing world; some lawyers see it as a professional obligation or want to share their experiences whilst learning something new, others just want to to make the world a better place. The A4ID ‘Future Lawyers Training Programme’ was held over two weekends in January and March and was certainly a mind-opening and inspiring event to attend. Speakers included representatives from the academic world as well as those from law firms and non-government organisations who share the single aim of contributing to the needs of developing countries.
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Dr Sandra Sequiera of the London School of Economics gave a brilliant overview of different development theories and current thinking in the area. Simon Moss from the Global Poverty Project delivered a powerful talk about how to help combat poverty by making ethical decisions with our everyday purchases, and how other simple choices in our lives can make a difference. There was also a session looking at the UN MDGs and what lawyers are already doing to ensure that they can be achieved. The second weekend started with two very passionate talks from Andie Lambe (Global Witness) and Sue Adkins (Business in the Community), about both the positive and negative impacts that business can have on global communities. Antony Crockett of Clifford Chance spoke about the emerging issue of interrelation between businesses and human rights, and the role that the UN plays in ensuring businesses observe human rights. There was also a presentation from Nick Molho of the WWF about climate change and how lawyers are becoming increasingly involved in related projects. Last but not least, participants also had the opportunity to hear first-hand from those who were directly involved in various international pro bono projects. A4ID intends to run the training programme again next year so if you wish to take part check www.a4id.org for further details. This year applicants went through a selection process to demonstrate interest in the development agenda. It is an incredible opportunity to raise your awareness about the world around you and get involved in something which will make a difference to people who need it most. So don’t miss it!
The evolution of Roman Law and adaptations for a modern society by Vlad Grigoras
According to historians Rome was founded in 753 BC, and the Roman Empire is said to date from 27 BC in the era of Octavian Augustus, the great nephew of Julius Caesar. The legal system that evolved during this period provided for distinct classes of people. Some of the most significant law emerged between 527-565 AD, during the rule of Justinian. The “Corpus Juris Civilis” (Justinian Code) comprised three codes issued during Justinian’s reign, and the Empire’s primary jurisprudence. The Justinian code consists of various legal concepts such as “ius publicum” (Public law) and “ius privatum” (Private law). It also covered areas still present in modern-day law including Property law, successions, and other principles that continued to develop.
An important part of Roman law is “ius gentium” (the law of persons), which differentiated between ‘freemen’ and ‘slaves’ (“alieni iuris”). Such “alieni iuris” were under the power of their master (“dominus”) who had the right to a slave’s life or death. Indeed, humans at the time were born into slavery via a mother with “alieni iuris” status; by hostile capture; or by a rule of civil law that permitted a freeman to sell his freedom. Alternatively, a slave could become a freeman by his master’s will (known as “manumission”). In the times of Julius Caesar around one million Gauls were captured for such purposes and free labour was replaced by slave labour. The “dominus” also had the right to expose slaves, with the authority of a magistrate, to fight with beasts or other slaves as gladiators. In comparing such ancient laws with our present system, would it be harsh to say that Roman concepts have evolved into the power structures we witness today? One could argue that amidst changing political and economic landscapes, we became the “slaves” of our own desires.
Contributors Ruth Azzopardi, Robert Calleja, Laura Gallagher,
Vlad Grigoras, Dianne Marcos, Nivedita Raghavan, Olga Rakhmanina,
Claude Romero / College of Law Bloomsbury, James Theaker, Editor Designed by: Eanna Freeney / hyphengraphics www.hyphengraphics.com hello@hyphengraphics.com
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