‘US in stronger position than UK’ to weather downturn

first_imgTop US law firms are better placed to weather the downturn than the biggest UK firms, and will be in a better position when the demand for legal services picks up, the head of the world’s biggest firm claimed this week. Eric Friedman (pictured), executive partner at US firm Skadden, said the traditional litigation and restructuring strength of big US firms allows them to outperform top UK firms during the downturn. He added that mass redundancies at some big UK firms will leave them short on expertise and fighting to rebuild their teams when the economy picks up. Skadden billed £1.33bn in 2008, toppling magic circle firm Clifford Chance as the biggest firm in the world by revenues. Last week, Clifford Chance reported a 5% fall in turnover to £1.26bn, making Linklaters the largest firm in the UK with revenues of £1.30bn, closely followed by Freshfields with £1.29bn. ‘When the demand for legal services picks up, the demand for lateral hiring shoots up most acutely among the firms that made redundancies,’ Friedman said. ‘This makes lateral hiring a hugely competitive and expensive process, because everybody is rebuilding their ranks at the same time. And the more senior you go, the more difficult and expensive it is to rebuild. ‘Without making mass layoffs, we were able to reduce our headcount pressure,’ he added. Skadden launched ‘Sidebar Plus’ in March, a programme allowing lawyers of all ranks to take a year’s sabbatical on a third of their pay and the continuation of some benefits. They were urged to undertake public interest projects: ‘Having hired, trained and developed our legal talent, we thought the scheme was a more elegant way of dealing with the problem.’ Friedman said the depth of Skadden’s litigation and bankruptcy practices had ensured a good year in 2008. ‘They provide a strong counterbalance to a troubled economic environment,’ he said. ‘Traditionally, US firms have always had bigger litigation and restructuring practices. In a challenging economic climate, they will fare better.’ Former Clifford Chance managing partner and management consultant Tony Williams agreed that the US firms’ litigation strength put them in pole position in the downturn. However, he added that UK firms had been ‘pruning rather than digging up the plants’ in making ‘necessary’ redundancies.last_img read more

Employment

first_img Emma Smith (instructed by Beachcrofts (Bristol)) for the appellant; Anna Beale (instructed by Leigh Day & Co) for the respondent. The appellant employer (M) appealed against the employment tribunal’s finding that the respondent former employee (C) had suffered direct ­disability discrimination contrary to section 3A(5) of the Disability Discrimination Act 1995. C was an executive director in an industry which paid high bonuses. He was successful in his work but had been told that he needed to widen his client base. In 2007 C severely injured his back and, as a result, his working hours and ability to entertain possible new clients were significantly reduced. At his appraisal, C was told that he had made a strong showing despite his injury. However, M noted that 65% of C’s revenue still came from one client. C was awarded a much lower bonus than the previous year and was later selected for redundancy. The tribunal found that C had been unfairly dismissed and had suffered direct disability discrimination in relation to his bonus and his dismissal. However, it also found that, in accordance with Malcolm v Lewisham LBC [2008] UKHL 43, [2008] 1 AC 1399, a non-disabled comparator in similar circumstances would have been treated in the same way in relation to bonuses and selection for redundancy. The tribunal consequently dismissed C’s claims for disability-related discrimination under section 3A(1). M submitted that, as the tribunal had found that there was no disability-related discrimination because the Malcolm comparator would have been treated in the same way, there could not, on the same facts, be direct disability discrimination. Held: (1) Although the tribunal could, before considering other ingredients of the statutory tort, ask itself ‘the reason why’ for the alleged discriminatory treatment, a comparator was still required, Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] 2 All ER 26 and Bahl v Law Society [2003] IRLR 640 EAT applied. In the instant case, the tribunal had not constructed a comparator so far as direct discrimination was concerned, and had not explained what the discrimination was. The comparator for section 3A(1)(a) was a person in similar circumstances to the claimant who either did not have the claimant’s disability or was not disabled, or where the circumstances of the comparator were unconnected with the claimant’s disability, and Malcolm had rendered the scope of section 3A(1)(a) for all practical purposes to be the same as for direct discrimination under section 3A(5). Therefore, if the case on disability-related discrimination failed, it was difficult to see how the same allegations relied upon in support of that case could found a successful claim for direct discrimination; if the claimant had not demonstrated that he had suffered less-favourable treatment, both claims would fail, Edinburgh City Council v Dickson, unreported, 2 December [2009] EAT (SC) applied. The tribunal therefore appeared to have confused the test of determining direct discrimination under section 3A(5) with the pre-Malcolm test of disability-related discrimination, Malcolm applied. Furthermore, it was unclear whether the tribunal considered there was direct discrimination for reasons other than unfair dismissal, failure to increase the client base and in connection with the bonus. If the tribunal did consider that the direct discrimination related to other matters, it was not clear what those might have been and who would have been the appropriate actual or hypothetical comparator, if not the comparator identified for the purposes of disability-related discrimination. If the tribunal considered that a comparator who had failed to widen his client base would have been treated differently it should have said so. (2) The matter would be remitted to the tribunal to determine whether there had been direct disability discrimination on grounds other than the bonus, dismissal or failure to increase the client base. Appeal allowed. Discrimination – Comparators – Reasons – Unfair dismissalcenter_img JP Morgan Europe Ltd v R Chweidan: EAT (Judge Serota QC, A Gallico, K Mohanty): 26 August 2010last_img read more

Environment

first_imgPlanning – Authorisations – Inspectors – Waste disposal The claimant quarry owner (B) applied for judicial review of a decision of an inspector appointed by the defendant secretary of state upholding the refusal of the Environment Agency to grant it a permit to dispose of inert waste at the quarry. Under regulation 10(4)(b) of the Pollution Prevention and Control (England and Wales) Regulations 2000, the Environment Agency was bound to refuse a permit unless planning permission was in force in relation to the use of the site. It was common ground that there was no express conventional grant of planning permission covering the relevant use at the site. However, B’s case was that planning permission existed by virtue of general development orders. B argued that the inspector had failed to deal adequately or at all with its submission that it had the necessary planning permission for the deposit of waste by virtue of historic general development orders. Held: The reasons given by the inspector were inadequate. The issue of the historic general development orders had been fairly before her. Detailed submissions had been made by all parties, but the inspector had not dealt adequately with those submissions. It was not possible for B to know why it lost. However, as this was a reasons challenge, B would succeed only if it could show that it had genuinely been substantially prejudiced by the failure to provide adequate reasons. B was applying for a permit for the whole of the area contained in a waste disposal licence granted in 1983. As there was no express grant of planning permission, it had to show under regulation 10(4)(b) that there was a deemed planning permission for the deposit of waste on the whole of the site. Before 1988, each individual deposit of waste on a site was granted planning permission by the historic general development orders where the superficial area of the deposit was extended so long as the height was not extended above the height of the surrounding land. However, the position changed as a result of the Town and Country Planning General Development Order 1988: the general grant of planning permission enjoyed previously was revoked without any saving provision. Thereafter, any fresh deposit of waste which extended either the superficial area of the deposit or the height of the deposit above that of the adjoining land required an express grant of permission. B therefore had to show that, before 5 December 1988, it had deposited waste on the whole of the site; otherwise there would be no extant permission for those areas which extended the tipping areas beyond the areas that had been tipped on 5 December 1988. The inevitable conclusion from the inspector’s findings, which included a finding that there had been limited tipping after 1983, was that B had not established on the balance of probabilities that it had deposited waste on the whole of the site as at 5 December 1988. Indeed, it was not part of B’s case that it had. In those circumstances, there was no extant permission for the whole of the site. It followed that B could not establish the necessary prejudice for the reasons challenge to succeed. Application refused. John Barrett (instructed by Walker Morris (Leeds)) for the claimant; James Maurici (instructed by in-house solicitor) for the defendant; no appearance or representation for the interested parties.center_img Berry & Marshall (Bolton Wood) Ltd (claimant) v Secretary of State for Environment, Food and Rural Affairs (defendant) and (1) Environment Agency (2) Bradford Metropolitan Borough Council (interested parties): QBD (Admin) (Judge Behrens): 24 September 2010last_img read more

And you think you’ve got problems

first_imgIf you can bear to tear yourself away from contemplation of justice cuts in the UK, here is a story of justice cuts in the richest country on earth. We are becoming poorer in the West, loaded with debts from living beyond our means, while countries in the East are growing richer. Even the US has justice troubles. The current president of the American Bar Association has set up a Task Force on the Preservation of the Justice System as one of the four core initiatives of his presidential year. He has asked two legendary US litigators to chair it, David Boies (Democrat, who represented Gore in Bush v Gore) and Theodore B. Olson (Republican, who represented Bush in the same case). The US courts system has been under-funded for some time, but matters are now critical. I shall start with two pieces of constitutional background, which may be well-known to you. First, the courts are one of the three branches of government in the US, along with the executive and the legislature. There is a feeling that the other two branches are starving the third branch of funds – which in any case takes up a tiny percentage of the budget, usually between 1% and 2% – to increase their own power. Second, the courts which are really suffering are the state (not federal) courts, which are funded by the state governments. Just for information, in 2001, there were 37 million filings in state courts, while the number of filings in federal courts totalled only 1.49 million bankruptcy cases, and 317,996 civil and criminal cases. Federal courts are suffering, too – from judicial vacancies and the politicisation of the confirmation process – but nowhere near as much as state courts. There is a very interesting table and map showing the effects of the budget squeeze. Here are some of the consequences, with the number of states affected in brackets after each activity: reduced hours of operation (15 – for instance, the courts were closed one day per month in California in 2009-2010); increased filing fees and costs (22); judicial vacancies not filled (26); furlough – what we would call reduced days of working with consequent pay reductions – for judges (9) and support staff (16); salary freezes (29). The list of measures goes on and on: resources diverted from civil adjudication (jury trials suspended); increased number of self‐represented litigants; lengthier time for cases to be heard (prioritising criminal and child welfare); and consolidation of courts. There is an interesting by-product to the gloom, which is an increased use of technology, for obvious cost-saving reasons. Nearly every state reports a steep increase in the use of technology, from e-filing, e-payment of fees and fines, videoconferencing for court hearings, and (maybe not so justifiably) remote court interpreting by video or phone. What are the consequences? Here are some of them taken from an interview with the two chairs: ‘They are closing whole courthouses in Los Angeles so now a juror has to drive an hour and a half to get to jury duty… ‘Judges are saying, “We are being asked to do more, we want to do the right thing and we are not able to do the right thing because we don’t have the resources to do the right thing. ‘”We are being asked to work more cases, longer hours under more difficult circumstances, we don’t have interpreters in our court, we don’t have court reporters in our court, we don’t have bailiffs to preserve security in our court and we’re not being paid enough. So what are we going to do? We’re going to quit. We’re not going to be there any more.” … ‘This is not a conservative or liberal issue, this is not whether you like a particular court decision or dislike it. It’s not a Republican or Democratic issue. ‘This is an issue for everybody who believes in our constitutional system. It’s for everybody who cares about justice. It’s for every individual who cares about having a predictable, safe place to go to get disputes resolved when other aspects of our society fail them.’ From a distance, it does look like a Republican or Democrat issue: why don’t they raise taxes? But that is to begin a debate which has echoes here in the UK, and will bring down an avalanche on my head.last_img read more

How could activities at News International be treated as something separate from its BSkyB bid?

first_img Sarah Davis is group commercial legal director at Guardian Media Group Never mind a week; a day is a long time in the politics of media regulation. On Monday Jeremy Hunt, who succeeded Vince Cable as the minister responsible for deciding on News Corporation’s proposed acquisition of up to 60.9% of BSkyB, told MPs that he is referring News Corporation’s bid to the Competition Commission. A week earlier no one would have predicted that, but then a week earlier Rupert Murdoch had not closed down the News of the World following public outrage over the phone-hacking scandal. Hunt’s announcement was the only possible response to News Corporation’s sudden withdrawal of the undertakings Murdoch had previously worked so hard to persuade the government to accept in exchange for allowing the bid to proceed. Murdoch’s surprise move seems to be aimed at taking the decision out of the hands of politicians and ensuring that it is not made at a time when News Corporation is vilified in all quarters. On Monday morning Hunt had asked the regulator Ofcom whether ‘any new information that has come to light causes you to reconsider any part of your previous advice, including your confidence in the credibility, sustainability or practicalities of the undertakings offered by News Corporation’. By Monday afternoon this question might have seemed less urgent, perhaps even redundant, following Hunt’s referral of the bid to the Competition Commission, which will buy Murdoch time. The commission may clear or block the proposed takeover, or it could propose remedies aimed at easing concerns about ‘media plurality’. A great deal has been written about the proposed acquisition by News Corporation of BSkyB since Cable, the business secretary, issued a European Intervention Notice in connection with the transaction, in November 2010, specifying the public interest consideration of sufficiency of plurality of persons with control of media enterprises. Hunt’s announcement this week in fact gives effect to Ofcom’s original advice, on the last day of 2010, that the bid should be referred to the Competition Commission. The secretary of state has a statutory discretion that allows him to accept undertakings in lieu of a reference to the commission. Hunt took the view that only if no suitable undertakings were offered by News Corporation would he refer the transaction. At times the secretary of state’s decision-making process seemed somewhat improvised, with merger control remedies being unsatisfactorily applied to public interest considerations. Then, less than two weeks ago, Hunt announced he was minded to exercise his discretion in favour of accepting News Corporation undertakings claimed to be sufficient to protect media plurality, which included Sky News being spun off as a separate, independent, entity and capping News Corporation’s shareholding at 39%. The collision of the phone-hacking scandal with this process has highlighted that the merger control remedy of accepting undertakings from News Corporation in lieu of a reference to the commission, in relation to the BSkyB bid, could not credibly be divorced from considerations of fitness and propriety. How could activities at News International, which raise serious questions of corporate governance, be treated as something separate from News Corporation’s BSkyB bid, given that the green light for the transaction rested on the secretary of state’s willingness to accept undertakings from News Corporation that related to corporate governance? While the ‘fit and proper test’ is not the secretary of state’s to apply, it was beginning to look untenable, both politically and legally, for there to be no consideration of this issue. The question that will now entertain and occupy media and competition lawyers is what Ofcom will do next. Last Thursday the regulator issued this statement: ‘In the light of the current public debate about phone hacking and other allegations, Ofcom confirms that it has a duty to be satisfied on an ongoing basis that the holder of a broadcasting licence is “fit and proper”.’ We look forward to hearing more about that. last_img read more

Street fighting

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more

Blood and treasure

first_imgSubscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access  SIGN UP TODAYlast_img read more

No need to rush

first_imgGet your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited accesslast_img read more

Un point

first_imgSubscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGINlast_img read more

A tale of two campaigns

first_imgSubscribe now for unlimited access Get your free guest access  SIGN UP TODAY Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGINlast_img read more