Following our AI in the Workplace event last month (May), our guest speaker, Dr Richard Whittle, takes a closer look at AI and the future of work, looking at the uncertainty that exists, as well as the potential. Read more here…

AI and the Future of Work: A landscape of uncertainty

I doubt it is an exaggeration to say that virtually every time you look at the news, your socials or LinkedIn you see another story about Artificial Intelligence (AI). The subject is everywhere and headlines range between an AI utopia of less work and increased productivity, and the AI dystopia of science fiction nightmares. The AI of today is a long way from either extreme; however, it is fast becoming a feature of modern work and life.

You are hearing about AI everywhere you turn, as over the last 18months or so – in waves of increasing sophistication – a new type of AI is producing human realistic outputs in a manner which is both highly accessible and relatively inexpensive. Text, code, images and more can be produced quickly, cheaply and by anyone.

This is Generative AI (GAI) and we will talk more about this later. We will be mostly talking about ChatGPT which many of you will have heard about and may be using, but I should note impartially that there are other models with similar capabilities.

In order to get to grips with the implications of this new technology we must briefly mention the history of AI, this helps us to think about what this technology actually means for us and put the hype into context.

A Brief History of AI: Booms, Busts, and the Path to Today

The journey of AI is a fascinating tale of ambition and unpredictability. Since its inception in the 1950s, AI has experienced periods of significant hype, known as AI booms, followed by phases of disillusionment and stagnation, termed AI winters. These cycles were characterised by overpromises and unmet expectations, as researchers and technologists grappled with the complexities of replicating human intelligence.

This latest boom is marked by tangible breakthroughs that have brought AI out of the lab and into everyday applications, from chatbots to creative content generation. However, history teaches us to approach these advancements with a balanced perspective, mindful of both the potential and the limitations of AI. In recent years, we’ve witnessed a resurgence in AI, fuelled by advancements in machine learning, deep learning, and, notably, generative AI. Here I will borrow a definition from the Turing Institute’s fascinating Generative AI lecture series.

Generative = Create new content.

AI = Automatically with a computer program.

I tend to be cynical of ‘this time is different’ positions, however the accessibility and quality of generated output means that economies, markets and institutions will need to adapt to the ease at which some outputs can now be produced as well as consider the implications of these tools on processes and products. For me, the best way to think about this is in terms of radical uncertainty.

Radical Uncertainty in the Age of AI

The rapid development of AI technologies has plunged us into an era of radical uncertainty. The Resolution Foundation consider that AI “is unknowable in a way that rules out even envisaging some of the possible outcomes, and provides no sensible basis for attaching probabilities to any of them”. Unlike the risks we encounter in traditional scenarios, where probabilities can be assessed and managed, the impacts of AI on the future of work are far more elusive. This radical uncertainty stems from our inability to foresee the full scope of AI’s influence on job markets, economic structures, and societal norms. In short, how do we plan for something we cannot imagine?

Predicting the exact trajectory of AI’s impact on work is challenging. Will AI lead to massive job displacement or create new categories of employment? How will different sectors adapt to the integration of AI? These questions remain open-ended, and our current understanding provides only a glimpse into the possible futures shaped by AI.

Uncertainty is a better way to think about AI, rather than to think about it in terms of risk. Risk is knowable, we can put likelihood and chances onto outcomes, uncertainty doesn’t allow us the luxury of that.

Organisations, policy makers and individuals need to attempt to turn uncertainty into risk in order to plan for ‘the age of AI’. This will allow people to take appropriate risk with incorporating Artificial Intelligence.

You will note that I said appropriate rather than low risk, the potential reward and disruption of AI is great, and purposely low risk adoption may not be possible. The challenge with AI is that its rapid evolution and diverse applications introduce unprecedented levels of uncertainty. Acknowledging this uncertainty is the first step toward developing strategies that can adapt to the unpredictable nature of AI’s future.

As organisations contemplate the integration of AI, they face a paradoxical dilemma: incorporating AI carries inherent risks, yet failing to adopt AI is equally perilous. Embracing AI could lead to operational efficiencies, innovative products, and competitive advantages. However, it also brings challenges such as job displacement, ethical concerns, and security vulnerabilities.  Not embracing AI may however lead to falling behind competitors and consumer expectations.

Disruption in the World of Work

Generative AI is poised to be particularly disruptive in various sectors. In creative industries, AI tools can generate content, design graphics, and even compose music, challenging traditional roles and workflows. In finance, AI algorithms are streamlining processes, analysing vast datasets, and making real-time decisions that previously required human intervention. Digital twins allow us to test new products costlessly and AI product development means the cost of a business trying new things may be virtually nil.

These new technologies generate questions around skills, investment, work and more broadly what type of economy do we want and what will we end up with?

AI could automate repetitive and mundane tasks, allowing humans to focus on more creative, strategic, and interpersonal roles. This shift will necessitate significant upskilling and reskilling of the workforce. Education and training systems must evolve to prepare individuals for jobs in the age of AI, emphasising skills that can be completed by AI rather than compete with it.

Currently though, Generative AI, by automating creative knowledge tasks, is challenging this more traditional view of the role of AI. As X user @AuthorJMac succinctly puts it “I want AI to do my laundry and dishes so that I can do art and writing, not for AI to do my art and writing so that I can do my laundry and dishes.”

Picture credit: gorodenkoff

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Nearly a decade on from joining Pannone Corporate, Danielle Amor talks about her career, her passion for seeing clients get the outcome they deserve, her love of coffee, and the growing influence of Artificial Intelligence (AI) in the legal sector.

Tell us a little about your career before joining Pannone

I studied law at Durham, then took the LPC at Oxford before starting a two year training contract at an international law firm in London, which included six months working at ITV in the Rights and Business Affairs team. I worked there for about seven years before making the move back up north.

My first role in Manchester was in-house at Manchester United working on the then-record sponsorship deal with adidas, before moving back into private practice at Pannone. When I joined, the firm had only been formed a few months before, so it was a really exciting time to be starting.

In her current role as a director in the commercial team, Danielle advises on commercial contracts, intellectual property and data protection compliance, with a broad range of specialism across the experienced team covering retail, fashion, manufacturing, hospitality, media, IT and industrial services. It was that talent and expertise that attracted her to Pannone. I was drawn to the mix of excellent lawyers and high quality work.

Despite a few wobbles along the way when she considered packing it all in ‘for a life of wanderlust’,  Danielle remains committed to the profession and what can be achieved. I am really irked by injustice! I enjoy seeing clients achieve the outcome they deserve, particularly when they have been in a dispute and I am instructed to draft the settlement terms.

Danielle is also passionate about the important role lawyers have to play in a world that is already changing with the increasing use of technology, particularly AI. I can see why businesses might turn to AI for drafting contracts and legal letters when they don’t always receive the practical, commercial advice they need from legal advisors. However, the nuances and subtleties that the majority of our drafting requires, cannot be replicated by AI as it stands. This reinforces why we need to continue to keep our advice concise, relevant and responsive to our clients’ needs.

So what does a typical day look like? I prefer being in the office, so I usually get in around 9am after dropping the kids off at school and nursery. A lot of my work involves drafting long agreements, so there is a lot of time spent in front of a screen. We have regular team catch-ups and training sessions in the diary and most client meetings tend to be via Teams. I also try and go for a walk at lunchtime and get a coffee from Mancoco to power me through the afternoon.

Coffee is a clear favourite of Danielle’s. When asked what she would be doing if she didn’t have a career in law, she responded: I have always quite fancied running my own café selling coffee and cake.

What’s more, if Danielle was managing partner for the day, the first thing she would do is install a coffee machine!

Outside of work, Danielle is kept busy by her three young children and a springer spaniel! We enjoy getting out into the nearby countryside and back to my home town of Blackpool whenever the weather allows. I also enjoy baking birthday cakes (for the kids, not the dog!) and yoga to de-stress.

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Pannone Corporate has been crowned Corporate/Commercial Team of the Year at the 15th annual Manchester Legal Awards.

The firm was recognised at the regional awards, which aim to reward the wide range of skills and talent across the North West legal sector.

The Pannone team beat off stiff competition, including well known international firms, to clinch the prestigious award at an event that was launched by Manchester Law Society in 2010. The 21 categories cover all areas of law, with organisation, team and individual awards.

Mark Winthorpe, Corporate Partner at Pannone Corporate, commented: “What an achievement by the team! After such a standout year, it’s fantastic to see our team being chosen as winners by a panel of 18 esteemed judges, who recognised the stellar work that we have carried out over the last 12 months.

“The Manchester Legal Awards is a real showcase of the legal talent that exists across the North West, so to be a part of that is a real honour for both our team and the firm!”

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Exclusion clauses are among the most important clauses within commercial contracts. When a dispute arises, the parties may first turn to the exclusion clauses to assess their respective exposure or any protections from liability.

Exclusion clauses are contractual terms which can either exclude or restrict a party’s exposure to a legal obligation or liability. For instance, exclusion clauses could protect a contracting party from:

Why are exclusion clauses useful?

Exclusion clauses are useful because they provide a mechanism for parties to manage and allocate risk. They provide predictability and clarity regarding liability and risk management.

By incorporating exclusion clauses into a contract, parties can allocate risk in a manner which is suitable to them. This could involve an equitable sharing of risk or an allocation of risk that reflects the contractual realties of the parties and their respective ability to manage contractual risks.

Controls on Exclusion Clauses:

To be considered enforceable, exclusion clauses must meet certain legal requirements. These requirements are intended to promote fairness and are based on both common law principles and statutory regulations. They are as follows:

  1. Incorporation: An exclusion clause can be successfully incorporated into a contract through signature, notice or a consistent course of dealing.

  1. Construction: There are two main principles the courts will consider:

  1. Unfair Contract Terms Act 1977: UCTA applies a reasonableness test to exclusion clauses, particularly in consumer contracts and those involving liability for negligence. This legislation seeks to ensure that exclusion clauses are fair and reasonable in the context of the contract.

Implications for Businesses: Drafting and Allocation of Risk Strategies

While exclusion clauses are a powerful tool that allow parties to limit their exposure to risk when engaging in contractual undertakings, it is advisable that lawyers are engaged at the drafting stage to ensure that the term a party seeks to rely upon does not become void if disputed in court.

Key considerations include:

Further Considerations for Effective Risk Management

Conclusion

Exclusion clauses are critical for effective risk management in contracts. Their enforceability and effectiveness depend on clear and precise drafting, legal expertise, and thorough negotiation. By employing the strategies discussed in this article, businesses can better navigate contractual relationships, allocate risks appropriately, and safeguard their interests in a dynamic and evolving marketplace.

What’s next…

Our next blog post in this series will examine the issues to consider and pitfalls which can arise when terminating contracts.

If you would like to discuss this blog, please contact Paul Jonson on 07737 571147 or by email to paul.jonson@pannonecorporate.com.

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Radhika Das joined Pannone in July 2018 as a Paralegal from a well-known HR services provider. In the last six years, Radhika has progressed to become an Associate in the firm’s employment team.

Radhika began her career at Pannone mid-way through its 10-year journey at which point it was clear what set it apart from other firms. “I was aware of the Pannone name and that it is well respected in the industry,” she says. “When I joined, the firm had been going for four years post-MBO and I felt it was an exciting time to join.”

In that time, a lot has changed at Pannone, with the employment team, in particular, growing to eight lawyers – a team that has plenty of experience behind it. “I received a team sheet on my first day which had the details of my team members, including the years they qualified,” explains Radhika. “I remember being impressed by the experience in the team and that some of them qualified in the 1990s!”

But it’s the team approach that Radhika values the most about the firm. “It sounds cliché but the people really are the best thing about Pannone, definitely,” she says. “Even though we operate a hybrid model, the office is always busy on any given day, and I think that is because everyone here genuinely enjoys working with their colleagues.”

The last six years have thrown up some real highlights for Radhika, including helping to plan the firm Christmas party in 2019. “It was the best work Christmas party I have been to, even if I do say so myself!”

She certainly has a lot to be proud of. “I joined the firm as a Paralegal,” she explains. “I qualified as a Legal Executive in 2021, I went back to University in 2022 to do my LPC part-time whilst continuing to work, and I finally cross-qualified as a Solicitor in 2023. I took the more scenic route to qualification, but I would not change a thing.”

While the firm has undoubtedly grown and developed during her time at Pannone, so too has the business community that sits around it. So what of the next 10 years?

“The North West business community is already growing rapidly and I can only envisage that this will continue over the next 10 years to level up with the South,” she says.

“In terms of the firm, I would like Pannone to continue investing in its people and talent and to carry on supporting alternative routes to qualification. Without that support, I wouldn’t be where I am today,” she adds.

It’s hardly surprising that when asked to sum up Pannone in one word, the first that springs to Radhika’s mind is ‘talent’.

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The insolvency and debt teams at Pannone Corporate have featured highly in the latest Insolvencies and Companies List, according to the latest Solomonic Year in Review.

The teams ranked second in the top insolvency law firm list, based on the volume of claims issued in 2023. Collectively, 260 claims were issued by Pannone Corporate, ahead of the likes of Irwin Mitchell, Shoosmiths and Weightmans.

Daniel Clarke, insolvency and restructuring partner at Pannone, commented: “Given the current economic climate and the challenges facing businesses across England and Wales, it’s unsurprising to see such high volumes of claims going through the High Courts, with the Pannone teams contributing significantly to those claims numbers.”

Paul Jagger,  Head of Debt Recovery at Pannone, added: “We have invested in experienced and fresh talent to strengthen our proposition in both teams. This, coupled with our bespoke case management system, allows us to be perfectly placed to deal with high volume petitions, achieving excellent results for our clients.”

The annual High Court commercial litigation data report looks at key trends and analytics on the claims issued in the civil courts of England and Wales over a 12 month period.

In 2023, more than 7,500 claims were issued, with an 86% increase in insurance-related claims driven by aircraft leasing and Covid-related disputes.

The report states that ‘geopolitical, pandemic and economic events loomed large over English High Court litigation in 2023’, with winding up petitions continuing to drift upwards through most of the year, peaking in September.

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English law upholds the principle of contractual autonomy, granting parties the freedom to negotiate and establish terms tailored to their specific needs and objectives. Contractual certainty is business critical in order to clearly delineate duties and obligations and to provide recourse for an innocent party in the event of a breach.

For contracting parties, it is important to note that contractual autonomy is not absolute and operates within legal frameworks aimed at ensuring fairness and equity in contractual relationships. This article explores the limitations designed to prevent abuse and safeguard parties from unfair or oppressive clauses.

Understanding Penalty Clauses

A contractual term that specifies predetermined consequences for a breach of contract is known as a “liquidated damages” clause. The purpose of this type of clause is not to punish the breaching party but rather to estimate, in a reasonable and realistic manner, the likely losses that would result from the breach. Importantly, the pre-estimate must be made at the time the contract was made (Clydebank Engineering v. Castaneda). This should not be confused with a penalty clause, which imposes excessive financial penalties to deter breaches and can be unenforceable if challenged in court.

The complexity of distinguishing between these two types of clauses often leads to legal challenges, with courts examining the true nature of the clause and the context of its inclusion in the contract. Factors that can be considered include the rationale behind the clause, the bargaining power of the parties, and whether the sum stipulated is excessively high or unconscionable.

Understanding whether or not a clause may amount to a penalty clause could have costly consequences. If a clause is deemed to amount to a penalty clause, it could be struck out as unenforceable.

Evolution of the Test for Penalty Clauses

The legal framework surrounding penalty clauses in UK law has significantly evolved, especially following key judicial decisions that have reshaped their assessment and enforceability.

Historical Perspective:

Historically, the assessment of penalty clauses revolved around the concept of exorbitance in relation to common law damages. In Dunlop Pneumatic Tyre Co Ltd v. New Garage & Motor Co Ltd [1915], the court held that a clause would be considered a penalty if it was not a genuine pre-estimate of costs or sought to impose a detriment on a party out of proportion to the innocent party’s legitimate interest in enforcing the contract.

Shifts in the legal test:

In recent years, the UK courts have moved away from the strict prohibition of penalty clauses. The Supreme Court judgment in Cavendish Square Holding BV v. Talal El Makdessi and ParkingEye Limited v. Beavis [2015] noted that the Dunlop test had taken on the status of a “quasi-statutory code”, which was never the intention.

Lords Neuberger, Sumption and Carnwath took a more nuanced stance, emphasising that the rule on penalty clauses does not permit the courts in every instance to review the fairness of a contractual term when parties can be said to have equal bargaining power. Instead, the focus will be on whether the term in question is a primary or a secondary obligation.

Key principles when assessing penalty clauses:

The following can act as a checklist when considering whether or not a clause is likely to fall foul of the law of penalties: