Edward Fennell’s LEGAL DIARY

Friday 14 January 2022 Edition 87


Double Standards: When do they apply?

Looking crumpled: The Union Jack, the Prime Minister and the truth
(Image courtesy of the National Portrait Gallery)

It has not been a good week for overweight, late middle-aged men. Boris Johnson and the man-formerly-known-as-HRH are both facing investigations, in different chambers, to establish the facts and decide whether or not laws and regulations had been broken. The parallels between them seem clear – a casual approach to the rules and an assumption, anyway, that they would not be applied to them.

In both cases what lies ahead legally remains to be seen. However, in the court of public opinion the verdict is already evident – ‘Guilty’. As in the case of the Colston Four, the issue of ‘evidence’ – for anyone other than a purist – has become a bit of irrelevance. The two of them are damned – all that remains is the sentence.

The LegalDiarist

Editorial Note: Each week the Legal Diary endeavours to represent the diversity of the legal sector – and we think that normally we succeed (at least up to a point). This week events fell out such that all our subjects and contributors are white and male. But sometimes that’s just the way life is.

In this week’s edition

+ Legal Diary of the Week

– ‘It’s not all about money you know’, say young lawyers

– Charitable partnerships announced at Browne Jacobson

– Hunters Hunt Down Hood

– PII Killing Off Sole Practitioners

+ Legal Comment of the Week

Prince Andrew’s US law dilemma

Illegality of VIP lanes for Government’s PPE Procurement 

+  Contributed Article of the Week

The “Panama Papers” Investigation – An Offshore Triumph Journalists Are Struggling to Repeat says Andrew Park

+ Appointments of the Week

Featuring Wedlake Bell and VBB

E-VENTS with Gresham College

It’s not all about money you know’, say young lawyers

Lawyers’ earnings, their workload, job satisfaction and stability are in a constantly changing relationship. But the old presumption that high pay equals low lawyer turn-over is now being turned on its head according to the latest findings on the ‘State of the Legal Market’ from Thomson Reuters.

Although primarily focused on the US market much of what the report says rings true for the UK as well. In particular the analysis was clear that firms with the lowest turnover are not necessarily those with the highest compensation growth. “In fact, they tend to have the lowest compensation growth among firms in the market,” says Thomson Reuters. “These initial results run counter to many previously held notions, as the report concludes that the loyalty lawyers feel to their firms and their willingness to work hard is not simply, or even primarily, driven by compensation.”

Many younger lawyers, it seems. may now be giving higher priority to intangible factors, such as feeling appreciated and recognized, as well as work/life balance and mental well-being.

Hybrid work and operational efficiency are also now high priorities and firms will have to determine how to manage key areas including equitable assignment of work, mentoring, evaluations, career advancement, and maintaining firm culture in hybrid work environments.

“Much of firms’ successful recovery has been a result of their willingness to adapt quickly and decisively in response to the challenges of the pandemic,” said Paul Fischer, president of Legal Professionals, Thomson Reuters. “Adapting to the rapidly evolving needs of the post-pandemic workforce will require expanding that risk-taking and decisiveness into areas such as operations, support staff, and technology to drive additional efficiency gains.”

 Download the 2022 Report on the State of the Legal Market at


Charitable partnerships announced at Browne Jacobson

Browne Jacobsonhas announced that each of its five offices across England will be partnering with a local charity over the next couple of years for both fundraising activities and a range of other collaborative undertakings. Among the initiatives planned are mentoring and interview support for young people, running introduction to law workshops, helping out on breakfast projects for homeless, contributing to volunteering projects and providing the charities with pro-bono advice around HR, governance and marketing.

“We are very passionate about supporting local causes and giving back to the communities we are connected to,” said Browne Jacobson’s managing partner Richard Medd, the Community Action sponsor at the firm.

“We look to work with organisations and services that like us are pushing for positive societal change so we are glad to be teaming up with each of these valuable charities that after what has been another challenging year for the sector are in need of funding more than ever. The fantastic work and messages that each of these charities and not-for-profit organisations do and promote has really resonated with our people this year and their focus chimes with our own ethos and values around social mobility, diversity and inclusion.

The five regional charities are named as First Class Foundation (Birmingham), St Petrock’s (Exeter), Reach Out 2 Kids (London), Lifeshare (Manchester), Inspire & Achieve – (Nottingham).

In the financial year 2020 – 21, the firm raised and donated over £42,000 for good causes across its five-office network.

Hunters Hunt Down Hood

Henry Hood – Top family lawyer

Enter the New Year and enter a new Senior Partner at Hunters Law LLP, the upmarket Lincolns Inn Fields law firm. Henry Hood joined the firm as an articled clerk in 1985 where he started in commercial litigation. However, he switched interests to become the firm’s sole family lawyer and has progressed up spectacularly from there culminating in being named as ‘Family Law Partner of the Year’ at the prestigious 2021 Family Law Awards. He now specialises in high value financial claims in divorce, with his recent clients including Peter Phillips, the Queen’s grandson. Appropriately enough he is also an experienced adviser on pre-marital wealth protection and sensitive children matters.

Arif Kamal, Chief Finance and Operations Officer at Hunters, commented: “Henry’s leadership of the Family team is charismatic, passionate and open-minded, and reflects his commitment to holistic advice achieved through cross-departmental collaboration, making him an excellent fit for the Senior Partner role.”

His predecessor Paul Almy occupied the role for ten years – so expect Hood to be around for some time.

PII Killing Off Sole Practitioners

The increasing costs ofprofessional indemnity insurance  (“PII”) premiums – especially for small firms – has been a mounting problems for years. Now though it is actually changing the shape of the market by driving independent legal practitioners into the arms of larger firms as consultants – in effect the unsustainable cost of insurance is withering the sole practitioner workforce.

For example, Taylor Rose MW reports that it has more than doubled the number of consultant solicitors in its legal consultancy division within the past year. And supporting this trend, unsurprisingly, is the increased acceptance of home working due to the pandemic.

But the figures are startling. A recent report1 from Lexis Nexis revealed that PII has increased by an average of 30% among SME firms, with two-thirds of respondents saying the cost of PII was one of the biggest threats to their firm. Meanwhile accountancy firm Mazars said that closures of law firms following failure to secure insurance had increased sixfold in five years. It is no surprise then that the number of sole practitioners regulated by the SRA has dropped by 5% in the past 6 months alone.

“Increasing PII premiums have particularly impacted smaller firms and sole practitioners and it is having a marked impact on their appetite to keep operating independently,” said Adrian Jaggard, CEO, Taylor Rose MW. “We are seeing a lot of experienced solicitors who no longer want the responsibilities of compliance and increasing operating costs, and instead are seeking the relative security and freedom of operating as consultants. This is certainly a contributing factor to the fast growth of our consultancy division.”

Taylor Rose MW’s consultant solicitor platform is one of the top four in the UK, and occupies the number one spot in the property sector and in consumer law.

TOPIC: Prince Andrew’s US law dilemma  

FROM: Thomas Garner

‘Have you come far?’
Image courtesy of YouTube

Prince Andrew’s team will no doubt consider whether there is to be an appeal. If he were to appeal this is likely to delay matters further.

If there is no appeal, or if his appeal is unsuccessful, then the matter will proceed towards trial as per Judge Kaplan’s directions.

These directions will involve the service of evidence and the taking of depositions, and each stage will bring further embarrassment to the Prince and the Palace here.

Should the matter proceed to trial, there obviously remains the question as to whether Andrew would testify in court.

To date, the Prince has denied any and all wrongdoing in the strongest possible terms, but as this is a civil matter in theory at least it is of course possible that a settlement may be reached with Ms Giuffre which avoids the need for a trial.

 Thomas Garner is an Extradition Partner at Fladgate, 

TOPIC: Illegality of VIP lanes for Government’s PPE Procurement 

FROM: Jonathan Compton

The case demonstrates how important it is for authorities, public bodies or indeed private individuals to have a regard to their legal duties and procedures. Sometimes, as in this case, the ends justified the means. In other cases, they will not.

 In my view the court in this case sought to recognise the strength of the claimant’s case, while balancing this against the pressures on the Department of Health at the height of the pandemic. Surely, this was the correct decision in this case. 

Jonathan Compton is a partner at DMH Stallard



The “Panama Papers” Investigation – An Offshore Triumph Journalists Are Struggling to Repeat

Here Today, Gone Tomorrow

As The Guardian / BBC Panorama “Panama Papers” scoops the coveted investigation of the decade award at the British Journalism Awards this was surely an ‘outlier success’ argues Andrew Park

An Undoubted Coup

There is no doubt the International Consortium of Investigative Journalists coordinated investigation struck a rich vein of compromising information. The investigation of c. 11.5m leaked documents from Panamanian law firm Mossack Fonseca revealed serious irregularities on the part of the law firm and many of its clients and in tax terms alone has led to the known recovery of over £1bn worldwide in evaded or avoided taxes – including c. £200m in the UK.

Many of the irregularities were blatant and easily discerned from leaked correspondence – in many cases, lacking simple attempts at circumspection or “window dressing”. With due deference to their tenacity, journalists did not need sophistication to grasp that practices such as backdating documents or failing to determine or record beneficial ownership pointed towards serious shortcomings.

Contrasting Fortunes

Subsequent journalistic attempts have proven less fruitful. The 2017 “Paradise Papers” – focusing on a leak from reputable international law firm Appleby and its former trust business – fell flat because c. 6m leaked documents did little other than show a bona fide law firm going about its legitimate business. Private matters were made public, and clients were embarrassed. Sir Lewis Hamilton was shown to have used clever planning to prevent a £3.5m VAT charge on his private jet. However, there was nothing unlawful in what he or fellow clients had done. Appleby took legal action against The Guardian and BBC for their use of the stolen records and forced them to a settlement.

The Latest Endeavours

Most of the offshore world is not like the “Panama Papers”. Present day offshore professionals are generally sophisticated and diligent.

We will see what sort of ICIJ investigation the “Pandora Papers” exposé of c. 12m leaked documents will prove to be. Much will depend on the respective characters of the 14 offshore service providers involved. So far, at least where the UK is concerned, journalists are exaggerating the significance of beneficial ownership information and making  public the private business dealings of wealthy people without pointing to any wrongdoing. To justify their raking through stolen documents, journalists need a stronger narrative than “all offshore arrangements are intrinsically wrong”. Those of us who professionally work with that world but are not of it know that simply is not true.

Andrew Park is a tax partner at Andersen LLP in London, specialising in tax investigations, voluntary disclosures and contentious tax


George Merrylees has been appointed as a partner by Wedlake Bell to its Private Client Offshore Team. A specialist in his field, he is one of the few UK lawyers able to advise on complex matters in French, and offers a unique cultural perspective and unified service to Francophone clients located across the world.

 Formerly a partner with Irwin Mitchell, Merrylees’ areas of expertise are cross-border tax planning, asset structuring and succession. He acts for international high net worth individuals, trustees and family offices, with a particular focus on assisting fund managers, business owners, entrepreneurs. He also sits on the Advisory Council of the French Chamber of Commerce and is the chairman of the Franco-British Society.

I am delighted to join Wedlake Bell’s offshore private client team, and work alongside individuals recognised for their meticulous and exceptional advice on complex cross-border planning,” says Merrylees. “I look to bring my bi-lingual expertise to further enhance the firm’s offering to Francophone clients across the world.”

Johan Mouraux has been appointed as a partner by international independent law firm Van Bael & Bellis (VBB) in its banking, finance and projects practice in Brussels. Previously with DLA Piper, where he was a partner and head of the Belgium office’s finance, projects and restructuring practice group, he brings two associates with him.

Mouraux has experience advising all parties involved in financing transactions, including arrangers, lenders, borrowers, investors, sponsors and public authorities.  He has particular expertise in the infrastructure sector, renewables, in real estate finance and in leveraged finance. 

Michel Bonne, head of the VBB transactional services team, comments, “Johan’s team adds strong expertise to our wide range of transactional services, in Belgium and abroad.  We work continuously with Belgian and multinational clients and the finest independent firms around the globe, and Johan’s expertise fits neatly into our strategic goal of being the go-to independent in the market.”




Visiting Professor of Medical Law, Imogen Goold

Monday 17 Jan, 1pm-2pm, Barnard’s Inn Hall/ Online (or watch later)


You are invited to a hybrid lecture by Professor Imogen Goold on Your Body Parts and the Law; this free public lecture will discuss the current law on body part ownership, explaining how it has evolved, from the early use of convicted criminal bodies for dissection, to changes in the law forced by body-snatching, and the notorious murder of Carlo Ferrari, a 14-year old boy, for his body parts in 1831. It will also look at how the common law has sometimes taken a property approach, while the legislation offers a squarely consent-based model. Goold will discuss where the law is patchy and confusing today and examine the arguments for and against using the law of property to regulate human tissue, and issues of sale and commercialisation. She will particularly focus on challenges posed to the law by emerging uses of tissue, from biorepositories to museum collections to artistic works constructed from human bodily materials.

“Property is a useful and effective legal device to achieve protection for human tissue” – Goold will say in her lecture. “A particular strength of taking a property approach is that it gives us the capacity to determine who has the best claim to an item, and from this to establish who can retain possession of it, use it, transfer it and so on. However far an item travels, property enables us to track these determinations through a string of transfers, interferences and loans.”

You can register for this free lecture via the webpage below and watch it either online or in person (or watch it online on replay, if 1pm on Monday is not convenient). 

Your Body Parts and the Law

CSFI logo_blue
The City post-Brexit:

A monthly review of regulatory developments, with Barney Reynolds (Shearman & Sterling) and Ida Levine (III)


Why you should watch:
Where to start? Well, maybe the European Commission’s Regulation on the ‘Green taxonomy’. But there’s also the implications of the Chinese property sector problems, the regulatory response to Archegos, the stealthy takeover of the world by blockchain and DLT, the FCA’s initiative on consumer duty and its review of the compensation framework, and the EU’s squeeze on ‘reverse solicitation’. Plus, more broadly, Barney Reynolds’s plea for the UK to dump ‘EU-style’ regulation in favor of a more common law-orientated approach. Lots to chew on. Moderator: Andrew Hilton (Director, CSFI)

We shall be back next week so please send your Diary stories, comments , insights and news to


Edward Fennell’s LEGAL DIARY

Friday 07 January 2022 Edition 86


Office Affairs: They’re a Right Hassle

‘I now realise what I enjoy about WFH’
Image courtesy of Architectural Gazette


The enterprising employment lawyers at Wright Hassall have just published an intriguing report on love affairs in the office. The overt context of this is to offer clients some sagacious advice on how to manage such scenarios and their possible outcomes. Nonetheless, the results have also turned up some salacious insights into‘romantic encounters at work’.

So, if you have an hour or two to spare, do probe the findings at https://www.wrighthassall.co.uk/knowledge-base/work-affairs-just-how-common-are-office-romances

Key take-aways are that one in four (24.4%) people admitted to having a romantic encounter at work with 27.6% of the total figure being male and 21.5% being female. Age-wise it is the 45-54 year olds who are most likely to be getting up to hanky-panky. And in terms of region it was the West Midlands which was by far the most active on the romance front. Londoners, by contrast, barely dabbled at all coming 10th out of the 12 regions surveyed.

“You need to ensure that any romances that do occur (and according to our survey, they are happening!) are doing so responsibly and that all sides are properly protected,” advised Weight Hassall. “To do this, you could implement a relationships policy that sets out rules for any employees who are entering into a relationship.”

What the survey seems to have overlooked, however, is the impact of WFH. Do fresh protocols need to be introduced for zoom-lovers? Or does this mean that the office romance will become a fling of the past?

The LegalDiarist

In this week’s edition


– Walking the Talk at Kennedys

Irwin Mitchell Gives the Green Light to Blue Light

– Family Law lift at Simkins

Ample room for growth at Ampa

Legal Comeuppance for Italian Food Writer

Cartel Business Booms

– ‘Out of the m

ouths (of children)’




TOPIC: The award of £1 to Meghan Markle in damages following her win in the copyright case against The Mail on Sunday



Walking the Talk at Kennedys

Makes you want to return to the office?

Continuing from where we left off last year the theme of new ways to work dominates thinking amongst law firm management. So the news that Kennedys’ decision to relocate into the Walkie-Talkie was influenced by the shift to hybrid working is really no surprise. “We had already started to introduce increased flexibility, but the pandemic obviously accelerated that,” said Nick Thomas, senior partner, “We have also seen a significant shift in what people are looking for from a workplace and we want to reflect that in the design of our global offices… to provide the very best working environment for our people.”

Getting the balance right in that hybrid arrangement, however, remains a challenge. As reported earlier this week in Law.com Internationalemployee ‘brand loyalty’ – especially by associates – to their firms will be diluted in the absence of regular face-to-face contacts with colleagues and bosses.“The challenge of the year ahead is maintaining a strong culture whilst hybrid working, working on what glues people together, and continuing that sense of inclusion and belonging,” said Herbert Smith Freehills West executive partner Alison Brown. “Cultivating a sense of belonging will require a really conscious effort on the part of firms and their teams.”

Whether being based in an iconic building such as the Walkie-Talkie will provide that glue remains to be seen for Kennedys.

Irwin Mitchell Gives the Green Light to Blue Light

We’re coming for your money

If the covid crisis has taught us one thing it has been about the importance of the emergency services. It has also exposed the stresses that individuals are often under whether that be in the NHS, the fire service, police, coastguard, RNLI, prison service or the armed forces – all of whom have been in the front line over the past two years.

Irwin Mitchell has now announced that it will be doing its bit to support these vital workers by partnering with the Bluelight Cycling Club to raise awareness of its work. This relatively new organisation was established initially to raise funds for the charity Care of Police Survivors (COPS) following the death of PC Andrew Harper who was dragged to his death by thieves in Berkshire in 2019. Ironically that initiative fell victim to covid but it gave time for a more substantial operation to be formed through a website and setting up a virtual ‘club house’ to enable people to come together and plan further rides for emergency service charities.

“We’re delighted to be teaming up with the Bluelight Cycling Club, which is still a relatively new organisation but has made a big impact since its launch last year,” said Jayne Campbell, specialist serious injury lawyer at Irwin Mitchell. “Through our work, we come across many people suffering with mental health issues, and the club carries out vital work supporting those affected in the emergency services and armed forces. 

“It’s important that people look after their wellbeing and we look forward to working alongside the members to ensure help is provided to those that need it. As the club’s sole legal sponsor, we will also be on hand to offer legal advice to members.”

Bluelight Cycling Club supports five charities – NHS Charities Together, Help For Heroes, COPS, Firefighters Charity, and Coast Guard Association.  Find out more at www.bluelightcc.co.uk

Family Law lift at Simkins

Deborah Jeff

Family law continues on an upward curve with Bloomsbury based Simkins LLP  being the latest London firm to add it to its roster of services. Moreover, it is going in at the top with the recruitment of  Deborah Jeff to head its new Family team.

Jeff is recognised as a ‘Top Recommended Family Lawyer’ by Spear’s 500 and has earned a substantial track record following fifteen years at West-end law firm Seddons where she set up the family practice which acted for a number of public figures, singer/songwriters and other performers. Jeff is particularly appreciated for her understanding of the psychological impact of relationship breakdown and has a deep interest in LGBTQ+ families and the medical care and treatment of children. There could hardly be a better place to be right now in the family law scene.

Ample room for growth at Ampa

While the largest international firms continue their drive for world coverage – as evidenced this week by the further expansion of Fried Frank Harris Shriver & Jacobson – it is encouraging to see that on the domestic front too there is no shortage of an entrepreneurial spirit.

One of the best examples comes from Ampa, which continues its growth as a ‘regional legal anchor brand’ for the South East. “Clients and people across our sector are crying out for change and transformation,” says Sarah Walker-Smith, Ampa’s Group CEO. Already within the Ampa group are Shakespeare Martineau, the consumer champion law firm Lime Solicitors, planning consultancy Marrons Planning, uninsured loss recovery experts Corclaim, and cyber security consultancy CSS Assure. But in the last couple of weeks it has added Sussex law firm Mayo Wynne Baxter which will take Ampa to a turnover above £100m for 2022/23 and a group of more than 1,100 people immediately.

 Following the deal Mayo Wynne Baxter will continue to operate as a separate LLP retaining its brand and growing its market position although its personal injury and clinical negligence teams will join Ampa’s existing national consumer-focussed law brand Lime Solicitors.

 “A key benefit of our group is shared access to greater support for the benefit of our clients, whether that be from other legal professionals across different brands, or our combined business operations capabilities alongside greater career development opportunities for our people,” said Sarah Walker-Smith. “Each brand in our group is empowered to deliver on its growth ambitions and retaining autonomy whilst collaborating with each other when it makes sense to do so for the greater good.  It’s time to consider the agile needs of clients more broadly and step away from the traditional consolidation model; Ampa does just that.”

Many thanks to the daily briefing from Irish Legal News on the story of Italian chef Carlo Cracco who has sued Achille Ottaviani, editor of La Cronaca di Verona, over his review of the food served at an international wine festival in 2016. It was not, it must be admitted, a kind or generous review. The meat was tough declared Ottaviani and the accompanying veg did not pair well. “Most guests had left disappointed and hungry, looking for kebab shops,” he added.

One suspects that while Ottaviani did not enjoy the meal he enjoyed writing his critique maybe rather too much. And he’s now got a high price to pay for his post-prandial fun. He’s been given a fine of €11,000 and ordered to pay €20,000 in damages with the further threat of another civil claim for €50,000 in damages to come. (The LegalDiarist will bear this in mind on the next trip to Italy – largely to eat – later this year).

Cartel Business Booms

Morgan Lewis’s  Global Cartel Enforcement Report is just out with some fascinating figures on what been happening over the past twelve mpnths.

  • Overall, global fines in 2021 were up by 229% (at $4.6 billion) compared with 2020 ($1.4 billion).
  • The highest total fines were levelled in the European Union, South Korea, and Brazil.
  • The United States, experienced a significant 77% drop in total fines of just $150.1 million in 2021 compared with $639 million in 2020.
  • Worldwide, the automobile, financial services, and steel industries were fined the harshest penalties in 2021. 
  • For some jurisdictions, however, the fine totals were lower than before the pandemic in 2020 (see infographic below)

Out of the Mouths of Children

Christmas celebrations took a Legal Diary correspondent to a party for 7 year-olds at Kew Gardens.

“What does your Mummy do?” one child asked another whose parent works for a very well-known West End firm of solicitors.

“She’s a lawyer,” the child explained.

“But was does she DO?” pressed his friend.

“She writes emails and sends her clients very big bills.”



HMRC recently celebrated the achievement of its Fraud and Investigation Service (FIS) in recovering £218m in 2020-2021, taking its total haul during its five years of operation to over £1bn1. But is this really something to be proud of? ask John Binns and Harry Travers

 Contributing factors

Any amount recovered may be good news for taxpayers, but it is also a product of three contributing factors.

The first is the amount of fraud committed – hard to know, but undoubtedly large and increasing. To help gauge the value of that figure, HMRC estimates 9% of the £61bn it paid out under the furlough scheme in 2020-2021 was the result of ‘fraud or error’.

Methods of recovery

The second factor is the methods available to recover the proceeds of fraud. There are several, with some significant ones added recently.

If convicted, a fraudster can be ordered to pay back the amount of benefit they obtained from crime, under the Proceeds of Crime Act 2002 (POCA). Since 2017, HMRC can also seek freezing and forfeiture orders under POCA against funds in bank accounts (and some other assets) that come from tax fraud.

Finally, HMRC has, and is using, ever more aggressively, powers to recover sums civilly, including by use of its Contractual Disclosure Facility (CDF). These civil routes are much easier for HMRC, which should increase its chances of recovering more sums, but come with risks of injustice for those who are wrongly suspected.

Targeting resources

The third contributing factor is the amount of effort and resource put in to recovering these sums.

Clearly, we would all want to see FIS deploying specialists to pursue the right cases in the right ways, including under POCA and the CDF, to recover monies from fraudsters.

Too often, though, we see instead that it pursues those it perceives as ‘easy’ targets, but where the merits are not made out. Before applauding the headline of £1bn recovered, we should ask query not only the real value of that figure, but whether HMRC’s efforts are targeted at the right people.

Harry Travers and John Binns are partners at BCL Solicitors LLP in London, specialising in tax fraud and POCA

Just remind me who these people are again

“Although £1 is a very low figure for damages, cases like these are usually fought for the principle not the money. Further substantial damages may be due to Meghan from the Mail for the copyright infringement element, but however large this sum is, it will be outweighed by the legal costs in this case.”

Gideon Benaim, Partner, Simkins, specialising in reputation protection for high profile individuals and companies.

 “There will always be those who think that the Duchess of Sussex should never have brought this claim, but the result is clear – she resoundingly won. It will be interesting to see if there is now more caution about reporting on aspects of her private life.”

Jon Oakley, Partner, Simkins, specialising in reputation protection and crisis management for companies and high profile individuals.

The settlement marks the belated acknowledgement of what was always a very strong claim, and an attempt at last minute damage limitation.

Associated has incurred enormous legal costs on both sides, having lost badly. The compensation will reflect the strength of the breach of copyright claim and may include a sum to reflect money made by Associated as a result of the breach. One can only speculate on the sums involved but it is likely to be very substant

The confidential settlement will avoid further humiliation by Associated in having the damages and costs assessed in court and aired in public.

The Court of Appeal upheld the judge’s decision that the Duchess had a reasonable expectation of privacy in the contents of the letter so the nominal damages figure of £1 merely reflects that win. It is unclear whether further compensation for that aspect is covered in the confidential settlement but the likely level of the copyright settlement would make that less relevant.”

Steven Heffer, Partner and Head of Media and Privacy at Collyer Bristow



Daniel Skinner is joining Roythornes Solicitors as a partner in its social housing team to advise on housing management matters including anti-social behaviour and regulatory issues.

Skinner is a well-established name in the social housing field having qualified 25 years ago and built up a strong reputation for acting for social landlords across the country. His experience has seen him work on litigation, policy, and governance for a wide range of social housing clients, as well as sitting on the board of Bexley Community Housing Association to gain insight into issues affecting clients.

“With the effects of Grenfell rightfully bringing about new rules in building safety, and provoking questions surrounding responsibility, it’s more important than ever that landlords, housing associations, and councils have watertight regulations,” said Skinner. “We’re here to make that process simple and efficient.”

Vember Mortlock, managing director at Roythornes commented “Known for his ability to summarise issues in clear and direct terms, as well as his down-to-earth and entertaining training style, Daniel will also be a great role model for our trainees and junior solicitors as they work their way up the firm.”


Mark Sands is joining Litigation funding specialists Apex Litigation Finance as Head of Insolvency. He will be taking overall responsibility for the company’s presence in the insolvency sector.

Sands has more than 35 years of experience in the insolvency profession, most recently in a senior role at Quantuma. Previously he had roles at KPMG and Tenon and has also served as the President of the Insolvency Practitioners Association.

Apex say that Sands’ experience working on the insolvencies of individuals and SMEs makes him a strong fit for their business, as the firm specialises in supporting small/mid-sized claims rather than the multi-million-pound claim focus of other litigation funders.

Sands also brings a history of success with contentious insolvency. He believes that his ability to delve deep into cases will be an asset for Apex and its clients: “It’s an exciting time for the company, which has established itself as a force in the litigation funding market in a relatively short period. I am also thrilled to be joining a company breaking new ground with its use of innovative technology.”

With the wheels of business now starting to roll again following the holidays (and despite Covid) we aim to be back next week with lots more Diary-type stories from law firms and the legal industry.

So please continue sending your comments, insights and news to


Edward Fennell’s LEGAL DIARY

Friday 17 December 2021 Edition 85


Was Norway’s Christmas Tree Hacked?

By the time you read this the Legal Diary team will have dispersed not to reassemble until into the New Year. Times being what they are, however, no-one is feeling particularly safe or secure what with Covid lurking behind every corner and, even more frightening, a hacker behind every holiday hamper.

According to GCHQ 2021 was a bumper year for hackers with the number of ransomware attacks in the UK doubling over the past twelve months. Andrew Fruish, founder of Nene Cyber Security, has warned, “We all tend to put our guards down during festive periods and combined with the Government directive to work from home where possible, the cyber criminals will be looking to exploit any vulnerabilities.”

For obvious reasons law firms are prime targets. This has been a pretty wretched year for many people. Best not to make it even worse by getting held to ransom over Xmas Day.

Good health and we look forward to returning on January 7th.

The LegalDiarist



– Ciao Charles!

– Birds Improve Flight Security

– Brick Court’s Biography

– Looking Glass Report Smudged by Pandemic

– CMS clinches Microsoft award


Independent Review of Criminal Legal Aid report

– Compensation paid by the Solicitors Regulation Authority (SRA) to Jamil Ahmud of Bloomsbury Law

– The NatWest Money-laundering fine

– The Formula 1 season result

– Civil partnership statistics

THE RISE OF THE ‘LEGAL COONSULTANT’ by Adrian Jaggard, CEO of Taylor Rose MW

APPOINTMENTS OF THE WEEK at Hodge Jones & Allen and Milbank


Ciao Charles!

All Hail the new Emperor

They’ll be pouring more than prosecco at Clifford Chance this Christmas with theannouncement that Charles Adams will be the firm’s new Global Managing Partner. After all. Adams’ bubbly rise to the top is quite a coup for the firm’s Italian practice. Although he followed the conventional route into the firm via a law degree from Oxford he swiftly migrated to the firm’s Rome practice arriving there just two years after qualifying as a solicitor in 1992. Seven years later he moved north to Milan where he quickly became partner. Moreover, such was his commitment to Italy that he qualified locally as an avvocato which turbo-charged him to become Manager Partner of the Italian practice in 2007.

Anyone familiar with Italian commercial lawyers knows what a hard-headed lot they are and the fact that Adams can combine such a rich ‘continental’ experience with Anglo roots says a lot about the direction the firm is taking. As fashion designer Giorgio Armani said,“Milan is a true metropolis: strong and fearless but welcoming, too. Little by little, I came to realize that I could become someone here.”

And Adams seemed to be referencing that heritage in his ‘acceptance speech’. “At Clifford Chance we have all the ingredients to continue to shape the legal industry,” he said. “An outstanding global platform, deep and broad market-leading expertise and a strong, dynamic and ambitious culture.” So romance and drive – should be an exciting ride.

Birds Improve Flight Security

Now you see it

With Covid controls back in place over the international travel market will air travel ever recover? If it does we can expect concerns over security to get ever more intense. That’s why the involvement of technology-focussed Bird & Bird with its client Pangiam on the DARTMOUTH project is so interesting.

DARTMOUTH uses AI-led technology alongside Google Cloud’s artificial intelligence (AI) and machine learning (ML) computer vision tools to revolutionise security in airports. And this week it has been revealed that trials of DARTMOUTH are now underway at Aberdeen, Glasgow and Southampton Airports to detect prohibited items in real-time as bags pass through airport X-ray scanning equipment.

“Bird and Bird have been true champions of innovation working side by side in the development of Project DARTMOUTH to accelerate the deployment of emerging technology whilst at the same time creating equally as innovative procurement and commercial models for our customers,” says Alexis Long, Chief Strategy Officer of Pangiam,

 The appreciation was reciprocated. “We are thrilled to be helping Pangiam take this technology into the market as innovation and disruption are very close to our heart at Bird & Bird.” said Stuart Cairns, Partner, Bird & Bird.

No doubt future iterations might be able to spot Covid as well.

Christmas Reading – History of Brick Court

To mark its centenary celebrations Brick Court has produced a splendid history of chambers – authored by Charles Hollander QC – which has the merit of being full of great anecdotes as well as great cases and great lawyers

Brick Court was founded by up-and coming barrister William Jowitt when he took rooms in 1 Brick Court, Middle Temple in 1921. He was accompanied by Cyril Asquith and Donald Somervell, both of whom also went on to have highly successful careers.

The chambers had excellent political connections. Cyril Asquith was the son of the Liberal Prime Minister HH Asquith and Jowitt himself became an MP first for the Liberals and then the Labour Party (combining both careers highly profitably). When Churchill became Prime Minister in 1940 Jowitt was appointed as Solicitor General and Somervell as Attorny General.

As you might expect from such a distinguished set of chambers the subsequent cast of characters is glittering and the cases sometimes astonishing. From Lord Devlin to Robert Alexander QC, Hilary Heilbron, Sidney Kentridge and Christopher Clarke and Jonathan Sumption the book is packed with heroic figures (although not everyone’s reputation has survived the test of time). And cases such as Lonrho, the People’s Mojahedin Organisation of Iran, Equitable Life along with celebrities from Sting and Elton John to Tony Blair all have their parts (some of them walk-on). Whether you want to be informed or just entertained this is a fascinating account.

Brick Court Chambers 100 Years by Charles Hollander QC is available in a limited hard copy edition but should be available as an e-book via the Brick Court website in the New Year.

Looking Glass Report Smudged by Pandemic

It should be no great surprise that people issues and regulatory risks have soared to the top of Executives’ and General Counsels’ (GC) agendas according to the annual Looking Glass Report published by Clyde & Co and membership network Winmark.

Seven out of ten of those surveyed ranked people challenges as a high or very high impact risk, with 80% of C-suite respondents citing it as a high impact risk. Moreover 30% of C-suite respondents suggested they were not prepared for this risk.

“Not only have businesses had to cope with the risks that came from the unprecedented shift to remote working, they are now adjusting to new working models  while facing a skills shortage as economies bounce back but the workforce takes time to adjust,” said Heidi Watson, an employment Partner at Clyde & Co, “There will be more focus on workplace culture, training and development as employers seek to attract and retain talent. Businesses will be assessing how they can implement new processes and systems to ensure they manage the impacts on individuals and their organisations.”

For 70% of General Counsel it is the increasingly regulated global business environment which is of most concern. In fact this was cited as more important than any other risk particularly regarding compliance with bribery and corruption legislation, modern slavery, GDPR, and ESG regulations.

“Not only are laws and regulations more complex, but regulators are increasingly taking enforcement action and baring their teeth with bigger fines,” said Rachel Cropper-Mawer, a regulatory and investigations Partner at Clyde & Co. “Regulators are also not averse to bringing criminal charges against organisations and individuals.”

In third place overall in terms of urgency came technology risks such as IT disruption, data loss issues, and implementation of new technology. “Remote working, e-commerce, and digitisation of operations – all hastened by the pandemic – have in turn further heightened concerns about data security,” said the report.

To see the report go to https://online.flippingbook.com/view/362342975/10/

CMS Clinches Microsoft Award

Top spot in Microsoft’s second annual UK Law Firm Diversity Programme focused onthe ‘accomplishments, progress and commitments of its law firm partners to create more diverse and inclusive organisations’ has gone to CMS.

“Massive credit is due to the superb and diverse lawyers at CMS who devote themselves to providing high quality advice – especially during this most challenging of times,” said Clive Gringras, Microsoft’s client relationship partner and Head of Technology, Media and Telecommunications at CMS, “And huge gratitude goes to Microsoft for bringing a data-driven approach to this Programme; it challenges us to be more deliberate in choosing the most diverse team possible.”

The overall diversity of CMS’s Management Committee saw an increase of 7.7%, to meet the target of 50% diverse.

You can read more about LFDP here.

 Derek Sweeting QC, Chair of the Bar Council, comments:

The report contains a comprehensive analysis of the underfunding of the criminal justice system over decades and its dire consequences, not just for lawyers, but for defendants, victims of crime and witnesses. The conclusion could not be clearer; urgent additional funding is needed if the entire system is not to face collapse with the profound societal problems and loss of confidence in the justice system that this would cause.

 “The Bar Council welcomes the call for significant additional funding, a general uplift in fees and a restructuring of legal aid to ensure that work undertaken is remunerated appropriately and paid without delay. The report sets out minimum requirements for extra investment; more will be needed if the Government is to achieve its ambitious targets in relation to tackling serious crime and reducing the backlog. 

 “We urge the Lord Chancellor to respond without delay and to make a commitment to additional funding and the establishment of an Advisory Board, as the report strongly recommends. We look forward to working with the Government to implement other recommendations in a way which will make a positive difference to all who work in or come before the criminal courts.”

Jamil Ahmud of Bloomsbury Law comments:

By bringing improper proceedings, the SRA caused me significant distress and wasted a great deal of the profession’s money. Its lack of judgment was shown not just by its decision to launch baseless proceedings, but also by its offensive attempt to avoid paying any of my costs when it was forced to withdraw those proceedings. I gave the SRA and their solicitors, Capsticks, numerous opportunities to abandon their misguided prosecution, but they failed to do so until the trial was imminent. The SDT similarly refused to strike the case out in September 2019, despite the obvious flaws in the SRA’s Rule 5 Statement and the glaring absence of any supporting evidence. 

“At no stage has the SRA shown any insight into the distress and expense which it has caused or offered any apology for bringing an improper prosecution.. Lawyers are rightly held to high standards, and the SDT has acknowledged that the SRA “fell demonstrably below those standards” in this case. The SRA’s failures in this case have resulted in a record costs order against them, and they cannot be allowed to continue to conduct themselves in this way with no proper independent scrutiny. I have filed a formal complaint against the SRA and Capsticks, it remains to be seen whether the SRA will investigate themselves and their solicitors and I will be interested to see how much contrition and transparency is displayed in replying to those complaints.”

TOPIC: The fine of £265m imposed on NatWest for its failure to undertake proper measures against money laundering by one of its clients

Sara George, former prosecutor for the FSA and now a partner at law firm Sidley, comments:

 “The facts of this case are particularly egregious: the sheer amount of cash being physically carried around and deposited is a clear indicator of criminal activity, with £1.8m being deposited in cash in a single day from bin liners. It is difficult to see any basis for failing to suspect that the bank was laundering the proceeds of crime. There were failings at every level of the Bank.

Money Laundering is anything but a victimless crime; it is a facilitative criminal activity. Those who assist others to introduce the proceeds of criminal activities  – usually drug trafficking, bribery, corruption and fraud – into the legitimate banking system create the incentives. Without the ability to realise, transfer, invest and enjoy the proceeds of fraud and corruption those activities are distinctly less attractive.

Effective anti-money laundering laws and their robust enforcement are essential – a fact not lost on the FCA. The shift away from imposing regulatory sanctions in the NatWest case to criminal prosecution demonstrates its commitment to employing a fuller spread of their enforcement powers to tackle anti-money laundering offences.”

TOPIC: The controversial outcome of the final Formula 1 motor race of the season which saw Max Verstappen of Red Bull take the world championship

We’re making the rules up as we go along

 Stephen Taylor Heath, Head of Sports Law at JMW Solicitors comments:

In any sport where the outcome can turn on the discretion of a human-being applying the rules you will get unfairness. Most onlookers would regard the application of the rules by Michael Masi to be unfair as he went back on previous precedent and the strict application of the rules to manipulate one more lap of racing.

The FIA justification for Mr Masi’s conduct is that he actually has discretion whether to apply the rules or not and to vary them if he wishes. Needless to say that has raised eyebrows. What needs to be established in any appeal is whether Mr Masi knew a rule but chose not to apply it or whether he believed he had (erroneously or otherwise) discretion to vary the rules in real time as he adapted to the circumstances.

Formula 1 like many sports sets its own sporting regulations that the courts are reticent to interfere in. The key concern however is independence and conflicting interests that self-regulation can impose. Regulation of a sport should be administered by a body entirely independent of the governing body where that governing body is also a key commercial rights holder in that sport.”

TOPIC The recently released ONS annual civil partnership statistics for 2020 on formations and dissolutions of civil partnerships analysed by the couples’ sex, age, previous marital status and the place of registration.

 Neil Russell, Partner and Head of Family at Seddons comments:

Today’s statistics pose an interesting question- is marriage no longer considered the gold standard with 7,566 opposite-sex civil partnerships formed in England and Wales? There has been a growing trend in opposite-sex civil partnerships since the Supreme Court decision in 2018 in the case of Steinfield and Keidan. As from 31 December 2019 all couples have had the choice whether to marry or enter into a civil partnership. Yet, cohabiting couples who choose not to marry need to be aware that without marriage or a civil partnership, they do not have any financial provision available on breakup, which remains a huge problem.

 “Cohabiting couples need to be aware of myths such as a ‘common law spouse’, as there is no such thing.  It’s all about the label, of which there are three to choose from, two of which (marriage and civil partnership) provide for financial provision on a break up, beyond strict property rights.  Watching your partner drop down on one knee, may leave you in suspense not knowing if you will be given a proposal of marriage, or civil partnership, or the option of which one to choose, like a multiple-choice test. There is no legal difference, in terms of responsibilities, commitments and obligations.”



by Adrian Jaggard, CEO of Taylor Rose MW

 The term ‘legal consultant’ has been around for years, but only gained a huge amount of traction more recently and has been exacerbated by the pandemic with many firms now starting to move into a new model of working.

 So, what is a consultant? Some often confuse or overcomplicate the transition from traditional employment to the consultant, but from an employee perspective, very little needs to change day to day, especially in the way you service your clients. The consultant accesses a whole range of support and back-office functions that they will already be used to,  including access to the firms’ accreditations and professional indemnity insurance, essential to practise law. The fundamental difference is you now become self-employed (meaning you are free to set your own hours and place of work and to determine how the work is done), and you also operate on an income based upon work you have billed and brought into the firm.

The benefits can be huge. The consultancy model allows the legal professional greater control and flexibility over potential earnings, clients, working hours and fees while offering a career without limits or restrictions. On average, our consultants can earn upwards of 60 per cent of their billing. Furthermore, our fee ratios usually increase in the consultant’s favour once higher billing milestones are achieved, and legal professionals can double their current employed earnings without the stress of a higher caseload. The shift in percentages also provides a greater work-life balance. Meanwhile, those consultants more focused on their financial remuneration can see their earnings double or even triple with the right set-up. The model suits both full-time and part-time working and professionals wanting to work from home. As mentioned above. the consultants choose when they work, how they work, and the clients they want to serve.

There are considerations for anyone moving into this way of working. As a start-up, the consultant model naturally suits areas of law with shorter transactional lifecycles or the opportunity to interim bill, as the consultant is paid their fees once the client has paid. Therefore, solicitors with specialised experience in conveyancing, private client, civil litigation and general private client matters have significant advantages over areas of law with longer billing cycles. Allowing time to get up and running should also be considered, and where your clients are coming from, whether that is the firm or from your own contacts.

For ambitious consultants or those who focus on large, convoluted transactions, they can quite often end up running their own mini businesses without the burden of high initial start-up costs, such as securing office space, purchasing indemnity insurance, IT infrastructure and legal subscriptions, along with the admin time restraints that are inevitably required so concentration can be given to client care and billing, as the parent firm provides the framework needed to practice. Quite often, the fees given to the parent firm can be much lower than going it alone as everyone benefits from efficiencies of scale.

Interestingly, consultants can work on their own, however, some employ others, operate in groups and operate as a hub – such as a legal franchise – proving the model is flexible and not restrictive.

For more on Taylor Rose go to https://www.taylor-rose.co.uk/


Christine Dyson, an experienced Court of Protection solicitor, has joined the Private Client team at Hodge Jones & Allen to help deal with the firm’s growing deputyship caseload.

Previously with a Cambridge law firm and Cambridgeshire County Council, Dyson has expertise in managing deputyships arising from catastrophic injuries, referrals from family members and from local authorities. She is highly experienced at managing financial affairs and coordinating adult safeguarding.

“The legal rights of the elderly and vulnerable sparked an early interest in working for those who are sometimes unable to express their views and opinions due to lack of mental capacity,” she says. “Helping those more vulnerable in our society ensure their views and opinions are heard is very important to me. The work is extremely rewarding.”

Andrea Hamilton has joined the London office of Milbank LLP as a partner in the Global Corporate Group to expand the firm’s global antitrust capability into the United Kingdom

Hamilton arrives from the Brussels office of McDermott Will & Emery, where she was partner. She has regularly represented clients before the UK Competition and Markets Authority (CMA) and the European Commission in merger control reviews and antitrust investigations. In addition to being a qualified Solicitor of England & Wales, she is also a member of the New York and Washington, DC bars and the Brussels Bar (B-List). She was named by Global Competition Review in 2021 in its Women in Antitrust survey in view of her outstanding contribution to the international antitrust community.

“Andrea brings deep international expertise advising leading aerospace and defense, industrial and life sciences clients,” said  Alexander Rinne, head of Milbank’s European Antitrust practice. “Her background will undoubtedly benefit our existing clients in those areas.”


A message from the Collyer Bristow choir – We wish you a merry Christmas

 The choir and all at Collyer Bristow wish you good health and trust you will have an enjoyable festive break.  To listen to the choir’s performance use the link below.
Listen to the performance 

We look forward to returning on

Friday January 7th.

Please emerge from your Xmas/New Year slumbers to continue to send diary stories, insights and comment to


Edward Fennell’s LEGAL DIARY

Friday 10 December 2021 Edition 84


Levelling Up Through Law?

The latest reports on the state of the legal sector– aside from criminal law – have been buoyant. According to Robert Walters, for example, professional vacancies are +55% up when compared with 2019 pre-pandemic numbers. Moreover the CityUK claims that ‘The sector’s significant economic contribution is well distributed across all regions and nations of the country. It employs around 365,000 people, two thirds of whom are based outside London’ (see their map above). Nonetheless having as many as one third of the country’s lawyers in well-paid jobs in the South East – with Magic Circle vacancies now representing 11% of all legal vacancies.- is one of the reasons for the need for ‘levelling up’.

If the gap between north and the south is to be breached then somehow more of those top lawyer jobs need to be persuaded to migrate.

The LegalDiarist

In this Week’s Edition

Short Thought: Levelling Up Through Law?


– Law Reports

– Give Us A Job

– Down and Out – This year’s Xmas Parties

– Will You, Won’t You?

– I Will (Not)

Court Report

LEGAL COMMENTS OF THE WEEK on the CityUK report, Frederick Barclay, Taylor Swift,


The Impact of the proposed pre-Xmas strike at Tesco by Lucy Flynn

APPOINTMENTS OF THE WEEK at ARC Pensions Law and CM Murray

Law Reports – Trys hard, Does well

Still looking good – in fact, better than ever!

It’s December so lots of scope for taking stock of just how well 2021 has been for lawyers despite the Covid monster. In this light the report ‘Legal excellence, internationally renowned – UK legal services 2021’ published by The CityUK makes impressive reading.

The sector is one of the country’s great success stories, contributing 1.5% of UK gross value added (GVA) in 2019 and contributing a trade surplus of £5.6bn in 2020,” proclaims Miles Celic, Chief Executive Of theCityUK with justifibale pride. “UK legal services are recognised across the world for their quality and excellence. The UK is the world’s preferred destination for businesses to resolve international commercial disputes. English common law is by far the most popular choice of governing law for cross-border contracts, and the sector provides a foundational pillar that supports the UK’s status as one of the world’s leading international financial centre.”

The report goes on to detail the minutiae of this achievement. One rather humbling statistic came from a2019 survey conducted by the Singapore Academy of Law of more than 600 legal practitioners and in-house counsel who engage in cross-border transactions in Asia. This found that English law remains the most popular choice of governing law in contracts. It was selected as the most frequently used governing law by 43% of respondents and was often used in transactions with little or no other link to the UK.

All of this law owes its authority, ultimately, to the Houses of Parliament and, thereafter, to the courts which interpret and enforce it. The integrity of that process should surely not be compromised.

Give Us A Job

In keeping with the success described by the CityUK 2021 has proved to be a record year for the legal job market. According to Chris Poole – Managing Director of the agency Robert Walters  the number of new appointment by law firms had exceeded pre-pandemic 2019 levels by +23% – and that was with one month left to go.

The highest level of growth came in fields of Banking & Finance lawyers (+84%) and Company/Commercial (+72%) but there might even be some comfort for the economy in that Restructuring/Insolvency (+12%) and Tax (+11%) came towards the bottom of the league table. Of course this is no guarantee for what happens next year and the numbers already seemed to be slowing down as winter arrived. Nonetheless looking ahead Chris Poole said, “Going into next year, our forecast is that activity in the legal sector will continue to mirror what is happening across financial services and real estate. The busier those two industries are, the more the law firms will recruit.”

Down and Out – This year’s Xmas Parties

History of 10 Downing Street - GOV.UK
This year’s hot party venue? Perhaps not.

As events of the past couple of days have illustrated the Ghosts of Christmas Parties Past can come back to haunt us – even the highest in the land. So no doubt at this very moment there will be anxious, last minute debates taking place in law firms across the country as to whether it is safe to proceed – legally, reputationally as well as healthily – with this year’s events. Add in all the usual risks of people going ‘a bit too far’ and one might be tempted to say ‘Maybe give it a rest – again – this year.”

But Simon Roberts, Senior Associate Solicitor at DAS Law, still seems to be up for it, come what may. “This year thousands of employees will be having a ‘real’ work Christmas party,” he claims. “For many of us, it will be the first time they have been able to have a physical party for some time.”

So maybe for many the idea of living it large for the first time since 2019 will be too much to resist. But Roberts then adds a string of warnings about the dangers of photography and video at these high jinks – and the likelihood of their subsequent resurfacing. “If the photos/video belongs to an individual then being able to get photos/videos removed from social media is highly unlikely, especially if the photo/video has already been viewed/shared,” he says. “The legal recourses available to prevent or remove photos/videos are a court injunction, a court order for return or destruction, or damages by way of financial compensation.” If only Allegra Stratton had known.

PS TheLegalDiarist’s office party is already well and truly cancelled.

Will You, Won’t You?

10 Reasons To Make A Will
Just in case (but it may never happen)

 The Covid effect, it seems, is proving highly persuasive in stimulating people to start talking about their wills. JMP Solicitors are reporting a significant increase in those who have organised a will during the past year with almost one in three people admitting that the pandemic had made them talk more openly about death. In fact, 50% of respondents said that the pandemic made death feel more imminent.

Remarkably it was reported that 298% more millennials made their will in 2020 vs. 2019 – and Gen Z saw an even bigger increase of 465%. Even more astonishing, maybe, is that in a survey conducted by Legal & General, it was recorded that ‘15% of respondents in the 16-24 age group have used their will to leave their assets to their pets – the highest out of any other age group.

But this is not all good news. What appears to be happening is that fear of a sudden demise is driving many people towards cut-price will-writing services which may well create a right old muddle for the heirs. Hence David Tew, a Will Disputes solicitor with Cartmell Shepherd Solicitors, is now busily raising the alarm over the potential pitfalls of using unregulated and uninsured will writers who advertise on the internet. Tew points out that a large proportion of people offering online will writing services are untrained legally, and therefore not qualified to offer expert advice. “They are often uninsured so there is no redress if things do go wrong.” Oh dear!

I Will (Not)

Are big, expensive weddings going out of fashion? Time was, not so long ago (probably pre-Crash) lots of late 20/early 30 year olds were loading themselves up with absurd debts to achieve Hello-type nuptials. Now apparently not so much – and certainly not if the happy couple is trying to save for a mortgage.

According to Amanda Phillips-Wylds, Partner at Stowe Family Law, Starting off married life in debt because of a lavish wedding does not bode well. We all too often see couples citing financial stresses as a major contributing factor to the dissolution of their marriage.

In fact, the amount couples have spent on their big day has been plummeting by as much as 30% since the pandemic began. Where the average cost of getting married in the UK in 2019 was £20,731, the following year it tumbled to £14,422, according to Bridebook’s survey of 4,500 couples – probably not least because lock-down meant that the guest-list was substantially reduced.

Beyond that, however, it seems to be that the shine is going off the wedding thing entirely. According to the Stowe survey   31% of respondents aged 18-24 think that marriage is an outdated institution (vs just 16% of those aged 65+) while  40% of ‘single’ respondents think that marriage is an outdated institution. Quite what this means for family law remains to be seen.

Court Report

Was this the stand-out statement from Chair-Elect of the Bar Council Mark Fenhalls QC’s Inaugural speech earlier this week regarding the quickest way to improve the state of the criminal justice system?

Pay barristers who work in the criminal courts a reasonable rate for the work they do. And stop requiring them to do huge amounts of work for nothing’.

COMMENT by Derek Sweeting QC, Chair of the Bar Council

Today’s TheCityUK report ‘Legal excellence, internationally renowned: UK legal services 2021’ shows the vital, £29.6bn contribution made by UK legal services to our national economy. It is a reminder of the global strength of our legal sector and the adaptability of barristers, solicitors and all those who work in law in the face of unprecedented challenges. English common law continues to be the foundation of legal systems around the world and the most widely chosen law to govern international commercial transactions. Our courts remain among the most appealing and trusted across the world.

 “The Bar Council’s own analysis of barristers’ income for 2020 echoes the findings of TheCityUK report. The latest figures from the Bar shows that the profession’s reach is growing beyond England and Wales. Over the last 15 years to 2020, barristers’ total earnings from overseas work has tripled from just over £114m in 2005 to more than £394m last year, despite the pandemic. This underlines why it is so important for our economy that the Bar Council, along with partners such as TheCityUK, continues to promote our global legal services.”

TOPIC: The possibility of prison faced by multi-millionaire Frederick Barclay after failing to pay a £50m divorce settlement to his former wife after a High Court battle

COMMENT by Henry Hood, Partner and Head of the Family department at Hunters Law.

“Contempt proceedings are one of the means by which the Court sanctions litigants for not doing as ordered. The possible punishment is substantial to include imprisonment and for that reason the threshold of proof required is the criminal standard (beyond reasonable doubt) rather than the civil standard (balance of probabilities).

“The directions hearing this week was heard by the same judge who had officiated at the final hearing and who has already criticised Mr Barclay in his litigation conduct.”

COMMENT by: Howard Ricklow, Partner and media lawyer at Collyer Bristow

Taylor Swift signed her record deal with Big Machine when she was just 15. As is usually the case, Big Machine, a Universal company, owns the copyright in the sound recordings and can generally do what it like with them. In fact, it sold her albums to Ithaca Holdings in 2019, a company owned by Scooter Braun, who is Arianna Grande and Justine Bieber’s manager. 

Swift has repeatedly accused Braun of bullying her and was angry when Universal sold her recordings. She claimed she was trying to buy them herself but was ignored. Since then, Braun has sold the recordings for US$300m to another company, Shamrock Holdings. 

To ensure that royalties do ‘belong with me’, she has decided to re-record all her albums, looking to prevent Braun from profiting from the exploitation of the recordings.

As is commonly the case, Swift would have been prevented from re-recording the songs under the terms of “Re-recording Restrictions” under the deal with Big Machine. Typically, however, they would last between three to six years, so she is broadly free to re-record.

An obstacle to that may be if the co-writers of her songs objected to her re-recording them. That too is unlikely since under both US and UK copyright practice once a song has been recorded then generally anyone could record covers of those songs.

She could go further and put pressure on broadcasters and streaming services to only play her new recordings, reducing revenues from her earlier recordings. Fans have already started to block her old songs on streaming platforms and at least one major radio station has said it will no longer play her earlier recordings.

Swift has shown the power recording artists increasingly have over their music, the dissatisfaction with contracts signed when very young, and the steps they are prepared to take to ensure they own the rights and royalties of the music they create.”


The Impact of the proposed pre-Xmas strike at Tesco by Lucy Flynn

Industrial action happens when trade union members are in a dispute with their employers that can’t be solved through negotiations and members vote in favour of industrial action via a ballot. Trade Union members at four Tesco depots have already voted to strike if the ongoing pay negotiations do not result in an agreed pay rise, the results for the remaining five depots are expected this week.

Members have the right to vote before their trade union asks them to take industrial action. Members do not have to strike and can’t be disciplined by their trade union for refusing to participate. If a trade union fails to comply with the law on taking strike action, the employer may have grounds to apply for an injunction to prevent the strike.

Members who do strike following a properly organised ballot cannot normally be dismissed for doing so, unless the trade union has not complied with the law on taking industrial action – however, members on strike are not entitled to be paid and the period spent on strike may break their continuity of employment.

Striking is extremely disruptive to business, results in no pay for members and as a negotiation tactic can have devastating effects on both employee and public relations.

Instead, careful negotiations conducted by key people with the requisite skills and decision-making powers are key, as is; –

  • Maintaining empathy
  • Staying positive and purposive
  • Listening to, understanding and respecting the opposing view
  • Communicating and engaging effectively with the workforce
  • Focussing on mutually beneficial outcomes”

Lucy Flynn is Director in the Employment Team at Beyond Group


Andrew Pavlovic has joined CM Murray LLP as a partner specialising in Solicitors Regulation Authority (SRA) professional discipline and regulatory work.

He was previously with Russell-Cooke for 11 years where he specialised in professional discipline and regulatory investigations.

Andrew Pavlovic

Recognised by Legal 500 UK 2021 & 2022 as a “Rising Star” in the field of professional discipline, Pavlovic has substantial regulatory experience, having acted at his previous firm for the SRA over several years including obtaining injunctions for the high-profile case of The Law Society (Solicitors Regulation Authority) v Dixit Shah (AKA Sanjay Shah) [2014] EWHC 4382 (Ch), which was  described as “unprecedented” and “ground-breaking” by the legal press.

“Andrew’s vast regulatory and professional discipline experience is a strong and very important strategic addition to our practice – providing a full spectrum of support to our clients, and an important step forward in our story of continued growth.”said Clare Murray, Founder and Managing Partner of CM Murray LLP,

Alex Rodger has joined the Leeds office of specialist pensions law firm Arc Pensions Law, as a partner.

Alex Rodger

Rodger joins from Womble Bond Dickinson, where he advised trustees and employers in the private and public sectors on all pension scheme matters. He has over 25 years of experience advising on corporate sales and reorganisations, TUPE transfers and associated issues such as Beckmann rights, section 75 debts and the Regulator’s powers. He has particular expertise in relation to scheme mergers, member complaints, administration errors and buy-outs and buy-ins.

“We’re delighted to announce another step in Arc’s continuing growth, to meet increasing client demand across the country,” said Anna Rogers, senior partner. “Alex brings a wealth of experience that further strengthens the extensive capabilities of our team. We look forward to working with him.”

Arc Pensions Law was founded in June 2015 and is the first specialist pensions law firm to be launched in over 30 years.


CSFI logo_blue
The City post-Brexit: Threats and opportunities. A monthly discussion, with Barney Reynolds (Shearman & Sterling) and Kay Swinburne (KPMG)


Why you should watch: This month, there continue to be concerns about just how much business can be conducted through subsidiaries of UK-based commercial banks in the EU27, but most institutions seem to be finding some sort of accommodation. The UK’s Wholesale Markets Review also seems to be heading towards a degree of harmonization with the EU – at least in the short to medium term. But there are concerns about UK firms’ relations with their regulators – and the broad discretion that regulators have. What both of our speakers share is a strong sense that the City’s future doesn’t just depend on Europe. There’s a wider world out there – and we need to focus on it. 

Moderator: Andrew Hilton (Director, CSFI) 
Barney Reynolds is Global Head of the Financial Services Industry Group at Shearman & Sterling in London. 
Kay Swinburne is Vice-chair for Financial Services at KPMG UK. She was previously, for ten years, a Conservative MEP (for Wales), and was latterly Vice-chair of the ECON Committee. 

Highlights from last week: 10-minute Explainer: The Bradley Jones case with Alexandra Carn (Keystone Law). Watch here


Tax Aspects of Litigation Finance

In our next installment, Cadwalader partner Mark Howe and Phil Balzafiore, Head of Tax for Tetragon Financial Group, discuss interesting and cutting-edge issues about the tax aspects of this high-yield, and potentially high-risk, asset class, including:
What is it and what do tax lawyers care about? 
Various forms of financing, including straight-up loans, partnerships, outright sales and pre-paid forwards
Tax consequences and tax trade-offs for investors and law firm borrowers, as well as mitigation considerations   
As you listen, view the companion slide deck summarizing the key themes of the conversation. 

Having trouble downloading? Try listening here.


And if you have enjoyed this edition do pass it on to friends and colleagues.

Edward Fennell’s LEGAL DIARY

Friday 3 December 2021 Edition 83


Fraud? Look and you’ll find – it’s now everywhere.

Today the Parliamentary JUSTICE COMMITTEE has launched a new inquiry to investigate the criminal justice system’s approach to combatting fraud. The need is urgent.  The first half of 2021 saw a 285% rise in online fraud fuelled by the increased use of online platforms during the pandemic. And it is calculated that 350 people a week are victims to a fraud that leaves them in severe emotional distress.

Fraud is one of those crimes which shades into the world of the commercial law business. Like money-laundering it can entangle even reputable law firms. Among a number of questions being followed up by the committee are:

  • How the Justice System conducts fraud investigations and prosecutions;
  • The roles of the Crown Prosecution Service and the Serious Fraud Office in the prosecution of fraud;  
  • The prosecution of frauds that are not of sufficient scale to be investigated by the Serious Fraud Office; 
  • Problems with evidence and disclosure in the prosecution of fraud cases;

It is quite possible that you – or some of your colleagues – might have useful insights to offer on these issues and, if so, the Justice Committee would be keen to hear from you. More information on how to submit evidence is available here

The LegalDiarist

In this week’s edition


Wig & Pen Prize for pro bono legal work goes to Angela Dimsdale Gill

Scots Do Love a Lawyer

No Gulf Too Wide for Expat Law

– Eversheds Sutherland launches its SQE Academy

– Pedlars Pull in £130K for Breast Cancer Now

Cool Support for Tech Start-Ups


TOPIC: Meghan versus The Mail – The latest developments!

– TOPIC: The ICO’s decision on Clearview AI 


Getting Ready for the UK National Security and Investment Act: The View from Sidleys



Angela Dimsdale Gill

Angela Dimsdale Gill of Hogan Lovells has been named as the winner of this year’s Wig & Pen Prize in recognition of her thirty year involvement in pro bono work. Awarded jointly by the City of London Solicitor’s Company and the City of London Law Society the award celebrates the pro bono legal work of City lawyers.

Dimsdale Gill was instrumental in setting up the full-time pro bono practice at Hogan Lovells in 1997 which is believed to be the first of its kind in the UK and continental Europe. She herself has become very involved in providing pro bono support to clients across a range of innovative, complex, and often traumatic issues. Among these she is particularly celebrated for her work with the Hostage International organisation through which she has provided advice and support to individuals and families dealing with a kidnap or disappearance.

Over the course of a brilliant career, Angela Dimsdale Gill has made – and continues to make – an outstanding pro bono contribution to the law,” said Edward Sparrow, Chairman of the City of London Law Society, “She is a worthy winner of the 2021 Wig & Pen Prize. As well as demonstrating understanding of complex and often highly specialist legal issues, she has acted at all times with compassion and empathy for those she advises. Her impact on the pro bono landscape in the City deserves acclaim.’

Scots Do Love a Lawyer

Not quite your typical Scottish law firm? The alcoholic solicitor and his dodgy partner from the recent TV series GUILT Image courtesy of BBC

Do the Scots have a certain softness for lawyers? Given the widespread popularity of Nicola Sturgeon you might think that there must be something else going on beyond just the competence (or otherwise) of her Government. So maybe it’s her legal qualification which gives her that extra boost because, according to polling undertaken by the Law Society of Scotland, there is 90%+ client satisfaction with the performance of Scottish solicitors by the public.

This represents, the Society says, a ‘huge vote of confidence’ in the profession and showed that members of the public place ‘high levels of trust in solicitors and said they are highly trained professionals’. Further evidence of this, it has to be admitted, is offered by the recent TV series Guilt where the clients had a touching level of confidence in the alcoholic lawyer and in Shetland where the dodgy solicitor was much admired all-round. Could this be replicated south of the border, one wonders.

No Gulf Too Wide for Expat Law

Is there’s a growing Gulf between us?

Now here’s an interesting development. Niche firm Expatriate Law is opening a new office in Abu Dhabi to provide an on-the-ground international family law advice to expats and families with links to England who are living in the UAE and across the Middle East.

Leading the office will be award-winning partner Byron James who has been based in the Middle East for several years and has an expert understanding of the local law and culture and, in particular, the way in which it affects expatriates.

“For  expats it can be especially  difficult to know where to turn for accurate and trusted advice in the event of marriage breakdown,” says James. “The effective conduct of a cross-border divorce requires technical knowledge combined with practical experience of a number of niche areas of law.  It is essential that clients seek out the assistance of a lawyer who is able to deliver strategic advice relating to, for example: choice of jurisdiction for divorce, domicile residence and nationality, international injunctions, recognition of foreign marriages and divorces, stays and forum disputes, cross-border enforcement and financial relief in the English courts following an overseas separation.”

Expatriate Law is ranked in Band 1 for Family Law – High Net Worth in UAE by Chambers & Partners.  

Eversheds Sutherland launches its SQE Academy

Week-in, week-out it seems that leading law firms are innovating in how to train and develop their paralegals. So this week it’s the turn of Eversheds Sutherland (International) which is launching a ‘Solicitors Qualifying Examination (SQE) Academy’ for its existing cohort of paralegals in the UK. This take advantage of the new legal qualification route introduced this year by the SRA and will provide the required training, preparation course, work experience and supervision to enable the paralegals to become qualified lawyers. To get the scheme going the firm will support ten paralegals, with paid time off each week for their studies.’

“Our SQE Academy will enable our candidates to move their careers through training to qualification as lawyers over the next two years,” commented Lorraine Kilborn, Chief People Officer, Eversheds Sutherland (International). “By opening up a new route to a legal career for candidates who will come through from more diverse backgrounds, we are reflecting the communities we operate in and meeting the demands of our clients who look to our firm to invest in and shape the future of legal services.”

The firm has also launched in recent months a Legal Technology Graduate Scheme and a  Risk and Compliance Graduate Scheme

Pedlars Pull in £130K for Breast Cancer Now

Raising funds wherever

Lawyers in lycra’ cycled their way to a massive £130,000 for the charity. Breast Cancer Now in this October’s ‘Tour de Law’ fund-raiser. Competing in teams of up to ten 1,300 legal professionals from 54 offices across the UK were involved and managed to complete – virtually, of course, mostly on static or gym bikesa total of 43,876.25 kilometres.

Coming out on top as #TourdeLaw2021 Cycle Your Way champions was the ‘Underdogs’ team from Simpson Thacher & Bartlett which managed to pedalpush furthest over the course of the weekend of the event. Meanwhile Ward Hadaway and CMS zipped in not too far behind.

Among other leading outfits involved were Squire Patton Boggs, Duncan Lewis Solicitors, Kirkland & Ellis LLP, Graysons Solicitors, DLA Piper, Clifford Chance, Stowe Family Law LLP, Cloisters, Reed Smith LLP and 2 Harcourt Buildings. Appropriately enough Wheelers Solicitors also took part.  

It’s been a real treat to get everyone on their bikes and working as a team,” said Simpson Thacher & Bartlett. A huge thanks to all the different teams that took part. We look forward to doing it all again next year!” 

If you’re interested in taking to the saddle in 2022 contact  tourdelaw@breastcancernow.org.

Cool Support for Tech Start-Ups

US law firm Cooley has announced plans to direct its experience in DEI (diversity, equity and inclusion) to the UK tech industry via its London office. The firm is partnering with Libra (Tech Nation’s growth programme for start-ups with at least one Black or multiracial founder) to provide access to capital, commercial opportunities and professional networks to entrepreneurs from under-represented backgrounds.

As part of the partnership Cooley will offer practical guidance on how to secure institutional investments to a cohort of 30 companies, most of which are at the ‘seed or pre-seed’ stage or have yet to raise their first funding rounds.

“With under-represented founders facing a historic lack of access and a significant lack of diversity within venture capital, we are excited to partner with Libra as they drive change around how capital is allocated and accessed,” said Chris Coulter, a London-based Cooley partner and member of the firm’s diversity committee.

 Over a period of six months, the 30 cohort companies will enjoy 60+ hours of support and mentoring by world-leading scale coaches on fundamental growth challenges – from fundraising to international expansion.

“I am confident Cooley’s contribution will help under-represented founders on their growth journey and provide vital support for these companies to take with them long after they complete the program,” said Abi Mohamed, who leads the Libra program at Tech Nation.

TOPIC: Meghan versus The Mail – The latest developments! 

Those happy days of yore

On the Privacy issue……..  Steven Heffer, Partner and Head of Media & Privacy at Collyer Bristow,comments:

In general terms, privacy law requires the Court to balance the Claimant’s right to privacy against the rights of the press to publish matters which are in the public interest, but this is not the same as what the public may be interested in reading. 

The court has repeated that the contents of the letter were private personal and not matters of legitimate public interest.The Mail had relied on new revelations about the drafting of the letter but this was not enough to counter Meghan’s very strong claims to privacy and copyright. Had they persuaded the Court of Appeal, even to tip the balance in favour of ordering a trial this would have been regarded as a major victory for the press. As things stand it is another bad loss for the Mail and they will face heavy costs consequences, as well as damages.

None of this is new law, the courts deal with this balancing exercise all the time in media cases. An individual has the right to a private life, and to keep information private, but the media has a right to publish information if there is a genuine public interest in the story. It is clear that the Mail failed to establish any such public interest in this case.”

On the outcome of the appeal ……Steven Heffer comments

 The outcome of the appeal should not surprise those who have closely followed the legal principles involved in the case, despite the heavy legal fire power brought into play by the Mail.

 The case was originally decided by a senior and respected High Court Judge who had practised as a media lawyer often acting for newspapers. He could not be accused of being Claimant friendly. His reasoned judgment set out in detail why she was entitled to judgment without a trial. That was hard for the Mail to take as they wanted the spectacle and drama of a big trial with cross examination of Royals and Royal aides.

..Michael Gardner, Partner at Wedlake Bell, comments

 “Good news for Harry and Meghan from the Court of Appeal. The Court of Appeal has dismissed an appeal by Associated Newspapers against an earlier High Court ruling in favour of the Duchess of Sussex.The Court upheld her claim that the publication of the letter was an unlawful intrusion into her privacy.

There was no need for the Mail to have published so much of the letter.  The Duchess’s right of privacy was not outweighed by the Mail’s right to freedom of expression. The new evidence unearthed by the Mail ahead of the appeal hearing in the form of a statement from Jason Knauf did not affect their judgment. There was no need for a trial of the claims.  The High Court ruling was upheld. The Court accepted the Duchess’s apology for her lapse of memory.

Edward Machin, a lawyer in Ropes & Gray’s Privacy, Data Protection and Cybersecurity team comments:

Announcing its ‘provisional intent’ to issue a ‘potential fine’ suggests that the ICO may now be incorporating an element of self-preservation in its approach to enforcement. This approach looks more like the starting point for a discussion about liability rather than a final and unilaterally determined penalty. Given that each of the ICO’s provisional fines have been reduced on appeal, often significantly, there’s logic in wanting to avoid a similar fate in future cases. But having publicly trailed a large headline figure, if the final penalty is reduced or scrapped entirely it risks the ICO being seen as a regulator that struggles to get its largest enforcement actions across the line.


Getting Ready for the UK National Security and Investment Act

Alessandra Moroni, Associate & Patrick Harrison, Partner in Sidley’s Private Equity team and Sven De Knop, Partner for Sidley’s Global Arbitration, Trade and Advocacy teamhighlight the implications of the new Act

Consistent with recent investment screening reforms across Europe, in April 2021, the United Kingdom (UK) adopted the National Security and Investment Act (NSIA). NSIA introduces a comprehensive investment screening regime that will apply from January 4, 2022, with significant implications for ongoing and future transactions. Significantly, the UK government will screen investments both in domestic UK businesses and offshore businesses with connections to the UK (e.g., a UK subsidiary or contracts to supply critical goods to UK customers).

NSIA requires certain investments into ‘critical’ sectors (e.g., data infrastructure, artificial intelligence, dual-use items) to be approved prior to closing. NSIA also empowers the UK government to call in’ for review transactions that are otherwise deemed to pose national security risks, whilst also giving investors the option of requesting a voluntary review.

What should parties to a transaction bear in mind?

1. Approval requirements: Parties will have to assess whether pre-closing approval is required or whether the risk of a call-in warrants a voluntary filing, and should consider the likelihood of the transaction being prohibited or subjected to conditions.

2. Contractual provisions: Transaction documents should reflect the requirement to obtain approval, or the decision to make a voluntary filing. For transactions that may close on or after January 4, 2022, parties should consider a ‘springing condition’, to ensure that relevant approvals are obtained if closing only takes place after January 4, 2022.

3. Timing: Parties to transactions that may close on or after January 4, 2022 should consider (a) that there may be a rush of notifications on or shortly after January 4, 2022, which might delay approval, and (b) that there may be a benefit to engaging with the relevant department – the Department for Business, Energy and Industrial Strategy – in advance of January 4, 2022, to ensure as smooth a process as possible. Parties to transactions set to close before January 4, 2022 should also assess the risk of a call-in and make sure that contractual provisions give them the ability to apportion risk appropriately.


Gary Milner-Moore

 Formerly with Herbert Smith Freehills (HSF), where he was a senior equity Partner, Milner-Moore has worked on international insolvencies including the global insolvency of Nortel, one of the largest corporate bankruptcies in history. He has also advised major financial institutions, including in relation to financial derivatives. andoccupied various roles in the firm’s disputes practice and lead on a number of high-profile client assignments. As a qualified Solicitor Advocate, he has appeared both in Court and in arbitration proceedings.

At Seladore, Milner-Moore reunites with a number of former HSF colleagues, including Seladore founder Simon Bushell, and Partners Gareth Keillor and Kevin Kilgour. Simon Bushell commented: “Gary’s intellectual prowess, collegial nature, and his resilient character are well known to us and he is a natural fit for Seladore. He is an exceptionally good lawyer with a notable reputation for conducting heavy cross-border disputes of real complexity and importance. We are delighted to welcome Gary to the practice.”

Jacqueline Heng has joined Addleshaw Goddard in their Debt Capital Markets team.

Jacqueline Heng

Qualified in England and New York and formerly with Norton Rose Fulbright Heng has particular expertise in green and sustainable bonds and isable to advise across multiple jurisdictions. Her recent work has included advising HSBC, NatWest Markets, Sandvik, Ecobank and Scotiabank.

Heng’s recruiment is part of the current drive by Addleshaw Goddard to grow both its domestic and international offering – especially in finance. She has been recognised as a Next Generation Partner by Legal 500 and a Rising Star by IFLR.

“ESG (Environmental, Social, and Governance)-related finance has never been more important to our clients, and Jacqueline’s specialist knowledge here adds to an already enviable bench strength of recognised experts in this space,” said Amanda Gray, Divisional Managing Partner for Finance. “AG has made a real name for itself in the sustainable finance sector and this is a sign that we are committed to continuing our focus.

“With Jacqueline’s arrival, 41% of the London Finance partner group are women. We’re committed to building diversity in every sense as we know that diversity of perspective improves our overall offering to both our clients and our people.” 



The 2017 Lammy Report shows Black defendants get worse outcomes if tried by judges
Black defendants get worse sentences for the same crimes than white defendants
Lecture sets out seven steps to help judges make fairer decisions

Learn more through the online lecture on Judicial Racism and the Lammy Review on 7 Dec, 6pm, by Professor Leslie Thomas QC. In this lecture Professor Thomas will look at this history of judicial racism in England, at judicial racism today, and at what society can do about it. He will draw on his experience as a practising barrister and on research showing that judicial racism exists, for example that black defendants get better outcomes via a jury trial than if they are tried by a judge; and black defendants generally get worse sentences for the same crimes than white defendants. He will also look at the underrepresentation of Black and Minority Ethnic people in the Judiciary.

“Most people know that the English legal system has long had a race problem. Yet, we often attribute this to policing only, allowing the wider justice system – judges in particular – to get off scot-free. However, judicial racism has, and still does, play a critical role in perpetuating racial inequity.” Professor Thomas will say

In the lecture Professor Thomas will go on  to look at 7 suggested steps to ending judicial racism, including “swift and decisive disciplinary action against judges who make racist comments in court or who treat litigants and lawyers of colour with disrespect”; and a requirement for judges “to communicate, outside of a court setting, with people and communities for whom their decisions impact.”

You can sign up to watch this lecture via the link below

Judicial Racism and the Lammy Review

6 pm -7pm GMT, Tues 7  December, online (or watch later)


REPORTS LEGAL Podcast in association with Jersey Finance
Click here to listen to the podcast

ESG, NextGen and the Next 10 Years:

Impact & Profit: many family office decisions are being guided by ESG. How are lawyers/law firms/wealth advisers adapting?

Investment strategies: how are clients embracing ESG-focussed investment strategies?
Client objectives: are philanthropy and impact investing becoming increasingly intertwined?

Dominic Carman, podcast host, editor Reports Legal
Robert Moore, Director – UK, Jersey Finance
Simon Finch, Chartered Wealth Manager – Investment Consultant, Enhance Group
Josephine Howe, Partner, Ogier

We hope that you have found this edition of the LEAL DIARY of some interest.

If so, please relay on to colleagues and friends.


Have a good weekend – and hope that you don’t get too cold!

Edward Fennell’s LEGAL DIARY

Friday 26 November 2021 Edition 82


– REACH FOR A LAW BOOK (which AI will read for you)

Nothing robotic about Richard

The stand-out speaker last night at the International Law Books Facilitys 15th Anniversary celebrations – sponsored by Brown Rudnick – was Professor Richard Susskind OBE, the pioneer guru of IT in the law, who entertained his audience with reflections on the pros and cons of the traditional book versus the kindle as well as his vision of the future of law.

To the surprise of some he confessed that, in many contexts, he still prefers the book. “I love books and I don’t want to see the end of them any time soon,” he said. But having recommended everyone in the audience to write a book – if only for the joy of handling, for the first time, the finished printed product – he went on to paint a powerful picture of the impact that IT and AI will have on the law. “I can assure you,” he declared, “that AI will have transformed the law by 2030 and that’s why we are very lucky to be alive in this period.”

So is AI the long-awaited deus ex machina which will solve the shortage of criminal barristers and cut the ever-lengthening list of cases festering for justice? Certainly Professor Susskind believes that there is a moral case for the widespread adoption of on-line courts as a way of making the law more accessible. However, as former Google boss Eric Schmidt pointed out – almost terrifyingly – on Radio 4’s Today programme this morning, the dangers of AI ‘taking over’ cannot be over-stated. An AI-driven future is not risk-free – especially in a court room

The LegalDiarist

In this week’s edition

+ SHORT THOUGHT FOR THE WEEK: Susskind on books, AI and the Law


– Law Firms Do Well For Social Mobility (up to a point)

– More Apps Please (including BCLP)

– Privileged Classes (according to Lex Mundi)

– INTERPOL now a Threat to Justice?

– Let’s not make any bones about it (physiotherapists and the law)


TOPIC: Banks to compensate victims of money transfer scams for losses by Stephen Rosen

– TOPIC This week’s opinion for the UK Information Commissioner’s Office regarding data protection and privacy expectations for online advertising by Edward Machin

 TOPIC: Findings from the latest ONS migration statistics by Farzin Yazdi




Law Firms Do Well For Social Mobility (up to a point)

B bbing Ab ut

The Social Mobility Foundation (SMF) has just published its annual list of top performing organisations and once again legal outfits – predominantly but not exclusively firms of solicitors – do very well making up 25% of the Top 75 (although, admittedly, this was down from 30% last year). Banking, financial services and insurance represented the next 18% (unchanged from last year), while the public sector formed another 16% (down from 22%).

The Index weaves together two strands – questions directed at employers and an employee survey. Employers are evaluated across seven areas such as working with young people and progression, while the employee survey contextualises this data. There was some disappointment this year, however, at the percentage of organisations collecting data on retention and progression – although this might be attributable to Covid. The survey results also came with a word of warning from the SMF. “Just 11% of organisations collect and analyse data about pay by socioeconomic background,” it said. “Collecting this data is vital for organisations to measure and address the extent to which people from lower socioeconomic backgrounds can get on once recruited, so these numbers are disappointingly low.”

Linklaters was one of the Magic Circle firms to feature in the list and David Martin, Global Diversity and Inclusion partner at Linklaters, commented,  “I’m very proud of all of the work that is being done at Linklaters, which has led us to be featured in the Social Mobility Employer Index again this year. Our ambition is to be a leader on social mobility, and we will continue to work hard to level the playing field and ensure that an individual’s background is never a barrier to opportunity at Linklaters.”

So here’s the SMF list for 2021 in rating order for law firms:

01 Browne Jacobson

03 Herbert Smith Freehills LLP

09 Bryan Cave Leighton Paisner LLP

11 Ministry of Justice

13 CMS

15 Squire Patton Boggs

17 DLA Piper

19 Baker McKenzie

24 Allen & Overy

26 Crown Prosecution Service

27 Slaughter and May

28 Linklaters LLP

30 Pinsent Masons LLP

34 Lewis Silkin LLP

35 Hogan Lovells

37 Freshfields Bruckhaus Deringer

42 Shoosmiths

43 Simmons & Simmons

44 Brodies LLP

47 Eversheds Sutherland LLP

48 Osborne Clark

50 Shepherd and Wedderburn

51 DWF Law LLP

52 Macfarlanes LLP

53 Clyde & Co LLP

56 Burges Salmon

59 Addleshaw Goddard LLP

62 Radcliffe Chambers 63


67 Taylor Wessing LLP

68 Mishcon de Reya LLP

69 Ashurst

70 White & Case LLP

74 Mayer Brown

More Apps Please (Apprenticeships that is)

Southampton’s medieval walls – NO barrier for apprentices

One of the key recommendations arising out of this year’s Social Mobility Foundations index is that employers should have “A well-structured non-graduate route.” For the legal profession that means the adoption of apprenticeships. And by happy coincidence just this week Bryan Cave Leighton Paisner’s extended its award-winning apprenticeship scheme to its Southampton office.

“We are really excited to extend the award-winning BCLP apprentice scheme into our Southampton office next year,” said  Partner in Charge (Southampton) Anna Robbins. “It’s so important to continue to broaden the range of routes we can offer towards solicitor qualification and this is a great opportunity to extend our established scheme into our growing Southampton office.”

BCLP originally launched its apprenticeship programme in 2015, with three recruits into its Manchester office. Subsequently it has helped develop this new route to qualification as a Solicitor, with 21 Apprentices currently in the Manchester office across the roles of Paralegal, Solicitor and Trainee Solicitor. But Southampton is an increasingly important legal centre and it’s good to see it trail-blazing on the Apprenticeship path for the deep South (which, believe it or not, also needs a bit of levelling up).

Privileged Classes

Lawyer-client privilege and confidentiality – how much do they vary around the world?

For anyone with international business crime issues this has to be an important question. So Lex Mundi , the global network of independent firms, has tapped into its contacts and has just published an expanded Global Attorney-Client Privilege Guide. Developed between the Lex Mundi Litigation, Arbitration and Dispute Resolution Group and Jenner & Block ( the Lex Mundi member firm from Illinois, USA) it claims to be the broadest resource of its kind freely available to General Counsel and in-house legal teams.

Certainly it is ambitious covering a total of 106 jurisdictions in 69 countries and including US federal law, the State Law of 32 US states, and the law of 4 Canadian provinces. “The Lex Mundi Global Attorney-Client Privilege Guide is the broadest resource available regarding attorney-client privilege and professional confidentiality,” commented David Greenwald, Partner at Jenner & Block LLP, “The Guide enables in-house and outside counsel to identify key and significant differences among jurisdictions and provides citations to enable further research. Each submission discusses whether or not the jurisdiction considers in-house counsel to be within the privilege or bound by the rules of professional confidentiality.”

So could be useful!

INTERPOL now a Threat to Justice?

See one of these and be very afraid

Following the news that the UAE’s Major General Ahmed Naser Al Raisi is the new President of Interpol one or two people have queried whether it can be relied upon as the bastion of law and order internationally which we might have assumed. As Radha Stirling, CEO of IPEX Reform commented bluntly. “Interpol is complicit in numerous and serious human rights abuses and will soon be held to account. Interpol has become a pay-to-play organisation, open to manipulation and abuse by countries with poor human rights records. Countries like the UAE, Saudi, Qatar, Bahrain, Iran, Turkey, Russia, Egypt and China have been able to use the crime tool for their own personal vendettas.”

Oh and that wasn’t all. Ms Stirling went on to say, “Innocent individuals have been listed on Interpol, arrested, detained and tried for “crimes” that don’t even meet Interpol’s minimum reporting criteria. Journalists, activists, businessmen and credit card debtors have been locked up in Western nations at the mere request of countries who repeatedly take advantage of their membership with Interpol.”

So well, er, that’s a bit worrying.

Let’s not make any bones about it

One knows that the world is going seriously awry when a physiotherapy practice – Yes, PHYSIOTHERAPY! – is caught ripping off a health insurance company. Talk about kicking someone when they are down!

The case involved Covea Insurance which had received an invoice for treatment from physiotherapist Mark Browes at 10 Bridge Limited. The invoice was shown to be fraudulent with the result that Horwich Farrelly, the specialist insurance industry legal services firm, alongside Covea Insurance, were able to recover £35,000 in legal costs.

Now while this might be just a small wince for a city law firm it’s a pain in the neck for those outside the London elite. As Jared Mallinson, Partner and Head of Counter Fraud at Horwich Farrelly, said, “It is rare for a physiotherapy company to be found to have presented a fraudulent document and this case marks an important victory over such a professional organisation.”

Kelly McQuaid, the Associate Partner who handled the case added that, “Insurers rely on the honesty and integrity of the medical profession when assessing claims for physical injury.”

Quite right. Physiotherapists above all others should not have a dishonest bone in their body.

TOPIC: Banks to compensate victims of money transfer scams for losses

Stephen Rosen, financial services partner at Collyer Bristow, comments:

The banks will rarely accept responsibility for money lost to scammers even though their own compliance failures are to blame. This leaves victims helpless, because they simply do not have the funds to start a David and Goliath fight. There must be a change.

Banks have the financial means and ability to put stronger checks in place that would prevent push payment fraud. Until now they have had no incentive to work harder, so this legislation is a welcome arrival.”

TOPIC This week’s opinion for the UK Information Commissioner’s Office regarding data protection and privacy expectations for online advertising.

Edward Machin of Ropes & Gray’s Privacy, Data Protection and Cybersecurity team comments

 “Online advertising and privacy have become a Gordian knot for businesses and regulators, as they grapple with identifying how to use rapidly evolving advertising technologies in a privacy-compliant way. Yesterday’s report is a good example of this tension, in which the regulator provides high level guidance on its expectations and asks industry to propose solutions that unravel the knot. That is no easy task, and companies would be forgiven for wanting more concrete examples of what they can and cannot do when designing and using complex online technologies.”   

As an example, the ICO requires companies to build data protection by design and default principles into their existing technologies rather than wait for privacy-friendly solutions to emerge. But that will often be easier said than done for technologies currently in use that are not configured, and cannot quickly be retooled, to meet those standards. That said, most businesses can take comfort from the fact that enforcement does not appear to be the ICO’s immediate priority in this area.”

 TOPIC: Findings from the latest ONS migration statistics.

Farzin Yazdi, Shard Capital’s Head of Investor Visa who works closely with immigration lawyers regarding Tier 1 (Investor) visa category, comments.

  “Whilst today’s headline migration numbers fell considerably, the statistics show that investor visa applications are back to pre-pandemic levels. This is the first quarter where the UK removed most COVID restrictions, but the entire world has not fully opened which is why China & Hong Kong, whilst still the top nationality of origin, only account for 28% which is around half of normal levels. Americans continue the trend with 10%, after Russians with 12% of applications issued.

From an investment perspective, the UK is still attractive to HNW migrants. In addition to takeovers, the daily news of investments into start-ups, early stage, and scale up capital continued to amaze most market participants.

As a result of Brexit, European Investor applications are materialising from France, Cyprus, and Switzerland. In a post Brexit world, you are limited to the time spent in a European destination before having to navigate your way through their immigration system. The UK has become a new market to those countries in the same way Europeans have for the UK’s Investor Visa.”


George Borovas

The past few weeks have been astonishing with respect to the prospect of seeing a wave of new nuclear build around the world. There seems to be an emerging consensus that nuclear is absolutely necessary for the world to tackle climate change but also sustainable development.

In the past few weeks, a number of countries appear to be moving forward with national plans to develop new nuclear. For example, Romania just signed an agreement to build a Small Modular Reactor (SMR) with NuScale of the US, France is expected to announce an ambitious EPR new build programme alongside the development of its own SMR technology and the UK government has announced an investment in the Rolls Royce SMR consortium, as well as establishing a new financing model for nuclear projects, the Regulated Asset Base (RAB).

But are there legal challenges that may delay this new build in the UK and elsewhere?

One important challenge, especially for the emerging SMR and Advanced Reactor (AR) technologies, will be the application of the international conventions and national regulatory frameworks to these technologies so that they may be licensed without delays. As these new technologies were not contemplated when most of the nuclear conventions and regulatory frameworks were drafted, these would need to be reviewed and appropriately modified. A significant difficulty with these novel designs will be to demonstrate and approve their safety case which will be based on passive safety features as well as reduced off-site emergency planning zones (EPZs). In addition, possible changes to the fuel and coolant may require new licensing approaches, as well as the need to develop new expertise within regulatory organisations.

While these challenges are all manageable, it would be important for SMR and AR developers to identify these issues early on and proactively address them with the relevant regulatory authorities.

George Borovas is head of Hunton Andrews Kurth’s nuclear practice and managing partner of the Tokyo office.


We understand that workplace travel restrictions might have kiboshed your plans to join us in the heartland of commercial AI this year, but you don’t have to miss out!

You can sign up for the event livestream and it’s completely free to view or catch-up on demand. Whether you are a CxO looking to take your AI ambitions to the next level, or the Head of an R&D Center looking at the next big opportunity, we’ve got you covered.

Access our headline track – Digital Transformation Acceleration – in its entirety, including not-to-be-missed sessions like:
Democratizing Artificial Intelligence: How to Develop and Provide Access to Bias-Free AIWednesday, December 8, 2021 10:50 AM to 11:20 AM EST

Join Daniela Braga, CEO of Defined.ai, to get a better understanding of the importance of providing access to ethical AI development, and the impacts of bias-free AI on the future of the industry and our world. 
One Simple Question to Accelerate AI Deployments, Create Team Alignment and Eliminate Buzzword BingoWednesday, December 8, 2021 2:10 PM to 2:40 PM EST

Bjorn Austraat, Bjorn Austraat, SVP & Head of AI at Truist will introduce you to a jargon-free approach that helps focus stakeholders on what really matters – outcomes in the real world – but also ensures that AI deployment doesn’t skip important steps!
Developing a Set of AI Ethical Principles: One Company’s JourneyThursday, December 9, 2021 2:10 PM to 2:40 PM EST

Led by Josh Simons, Chief Technologist at VMware this session will take you along on one organization’s journey to develop a set of ethics principles  to evaluate how machine learning is adopted for both internal tools as well as future product offerings.
 The virtual edition will also feature these renowned event technologists who will share their top tips for designing outstanding digital transformation strategies:Matt Maccaux, Global Field CTO – Ezmeral Software, Hewlett Packard EnterpriseKatica Roy, CEO, Pipeline Equity
Sid Raisoni, Vice President of Analytics, WWEDavid Joosten, President and CEO, Vodafone USStefan Britton, Director – Enterprise Innovation, ShutterstockYarrow Diamond, SVP – Innovation Technology Solutions, CNB BankNitin Mittal, Principal, Analytics & Cognitive Leader, Deloitte Consulting
 Remember the livestream is free to watch, simply register online and you’ll get access to view on demand.


Have you registered for our latest  ‘Pathfinder’ webinar?

With job vacancies in many sectors being at an all-time high, the next webinar in our HR Pathfinder series will focus on right-to-work checks, how to do them correctly and the consequences if you don’t! Issues we will cover during the webinar will include: 

When to do right to work checks

How to conduct a compliant right to work check 

Checks for European nationals

Problem areasThe possible consequences of not conducting right-to-work checks properly

This will be an interactive session where you will be able to ask questions of our expert panel.We look forward to welcoming you.

If you would like to attend, please RSVP here or click the button on this mailing.The session will be held using Zoom, a link will be sent to you in your registration confirmation email and will also be re-sent on the morning of the webinar.Follow us @BDBPitmans #BuildingBetter


Please share the Legal Diary with friends and colleagues.

And when you are out and about this weekend remember that Covid is too!

Edward Fennell’s LEGAL DIARY

Friday 19 November 2021 Edition 81


Will everyone be bowled out before before tea?

Pull Stumps on Lord’s?

The irony is palpable. In this wretched ‘watershed’ week when cricket and cricketers have been exposed to withering criticism for racism of all kinds (including, following last night’s revelations, anti-Semitism) the Asian Jewish Business Network (AJBN) and its hundreds of members supported by law firm Axiom DWFM decided to hold its flagship annual meeting at Lord’s,  ‘the most famous cricket ground in the world’.

Of course the organisers probably had little inkling what was about to hit the national Summer game. And perhaps they would have gone ahead with it in any case as a brave statement of reconciliation. But maybe next year go to Wembley?

The LegalDiarist



– Law Books Galore

No Rush for Windrush Compensation

– Got to Go Now

– Eyes on Ireland

-This Case is Worth Crowdfunding








– THE CHANCERY LANE PROJECT: How ‘Off-the-shelf ‘ contract clauses can ‘Keep alive 1.5’ by LEONIE BRABANT, Project Associate

– CLOGGING UP THE FAMILY COURTS: Should couples face financial penalties? asks HETTY GLEAVE, partner in the family law team at Fladgate




Law Books Galore

There will be an impressive legal line-up next Thursday evening at at 2 Temple Place when the International Law Book Facility (ILBF) celebrates its fifteenth anniversary. Over that time the charity has distributed more than 72,000 legal textbooks to 200+ organisations in 54 countries including developing countries, for use by law students, teachers, lawyers and judges.

Happily presiding over the event will be the ILBF Patron – and founder – the  Rt Hon. The Lord Thomas of Cwmgiedd but guests will also enjoy the wit and wisdom of Rt Hon. The Lord Burnett of Maldon, Lord Chief Justice of England and Wales and the sagacity of Professor Richard Susskind OBE, the IT guru and adviser to major professional firms and to national governments. The event will also launch the ILBF’s inaugural essay competition for law students across the UK which asks them to think about how the practice of law will be transformed over the next decade. The fortunate winner will receive an internship at Brown Rudnick.

For more go to https://ilbf.org.uk/ and for a video go to https://brownrudnick.com/news_post/ilbf-celebrates-15-years-of-promoting-access-to-justice-and-legal-education/

Hold Ups in ‘Windrush’ Compensation

Not quite what we expected

If Yorkshire Cricket Club has become (for the time being at least) a simile for ‘racism’ so Windrush is shorthand for ‘justice denied’. That’s why the JUSTICE Working Group has now published its Reforming the Windrush Compensation Scheme report.

The trials and tribulations of the younger members of the Windrush generation who lacked the paperwork necessary to demonstrate their lawful immigration status have been well-documented. Appropriate compensation is now available – in theory – but the scheme has proved to be woefully difficult to access, lacks independence and suffers from delays and inconsistencies in decision-making. On top of that its awards fail to reflect claimants’ losses. In other words, you might say, it’s a typically British illusory solution to a genuine grievance.

Dechert is now backing JUSTICE’s report for reform which sets out 27 recommendations to improve the administrative and procedural aspects of the Scheme. “Through this Working Group and Dechert’s own pro bono casework supporting Windrush claimants, in collaboration with the Joint Council for the Welfare of Immigrants and six other law firms, we have seen first-hand the challenges faced by individuals seeking redress,” says Tim Bowden, Dechert partner and member of the JUSTICE Working Group. “This report makes practical proposals which are readily implementable, and we hope it will lead to significant changes in the scheme to ensure that claimants are fully and fairly compensated.”

To read the Reforming the Windrush Compensation Scheme report go to

Got to Go Now

Covid turned the world upside down and we are still trying to work out the long term consequences. Indeed, maybe like the Black Death in the 14th century, it may take decades for the full consequences to work their way through.

What is clear now, however, according to a survey of lawyers undertaken by Thackray Williams, is that the pandemic has been detrimental to individual careers prompting a majority of lawyers to consider looking for a new role.

The discordant feature is that, notwithstanding their dissatisfaction, 76% of law firm staff said they were well treated by their employers during the pandemic and 30% felt more positive about their employer than before Covid. But that did not compensate for their view that it is now time to move on. In short the past 18 months has been a major disruptor and a catalyst for unrest

.Among the most common goals are a better work/life balance (69%) and more opportunities for promotion and progression (48%). (Oh and, of course, more money). But poor internal communication was cited as a major cause for unhappiness along with poor technology (35%) and inadequate systems for managing mental health and wellbeing (34%). “In an era where lawfirm culture is just as important as pay, the results of this survey present a timely reminder for firms to keep communication and employee wellbeing at the top of their agenda.” said Sean Sanders, managing partner of Thackray Williams.

Financial remuneration always ranks highly for candidates, but flexible working is no longer a nice to have – it is essential,” added Leilani Reader of LR Legal whoch co-operated on the survey. “Most legal professionals will not even consider a law firm if they don’t offer flexibility or aren’t actively investing in their culture.”

Eyes on Ireland

Irish eyes are certainly smiling now

With the EU’s Vice-President Maroš Šefčovič meeting Lord Frost today this could be another (correction, yet another) critical moment in trying to unravel the knotty Northern Ireland Protocol.

Meanwhile south of the border things are going pretty well as laid out in the latest edition of Dominic Carman’s REPORTS LEGAL which is entirely dedicated to Ireland.

With Facebook, Microsoft and Google all heavily invested in the Republic and Amazon also due to open a high tech hub the good times are flowing for Irish law firms in what is becoming a heated-up market. The local rankings list is still dominated by Ireland’s own version of the Magic Circle – Matheson, A&L Goodbody, Arthur Cox , McCann Fitzgerald, and Mason Hayes & Curran but London names now also feature in the Top 20 – notably Eversheds Sutherland, Freshfields, DAC Beachcroft and Pinsent Masons.

Ireland is becoming such a hugely important jurisdiction, particularly for overseas expansion of internationally focused corporations,” says Alan Connell of Eversheds in Dublin. “There’s a significant challenge for the status quo in the Irish legal market because the larger firms have relied heavily on international referrals in order to operate at the level they have been doing for many years. The influx of international firms will inevitably mean that the quantum and level of those international referrals will reduce somewhat. As a result, something has to change. Whether that’s more alliances, tie ups, or mergers in that space, I definitely see more consolidation in the market. It’s becoming somewhat inevitable.”

Read more at https://reportslegal.com/ireland-report/

This Case is Worth Crowdfunding

Simon Hawkins and his wife, Penny Ericson were victims of the notorious Interest Rate Hedging Product (IRHP) which was forced on to them by the HBOS team in Reading in the late 2000s. This policy proved to be disastrous and led to the couple losing what would otherwise have been a very successful business. As Hawkins puts it,  “What I didn’t know at the time was that I was being deceived and coerced into taking out a totally unnecessary and unsuitable product solely so they could earn £120,000+”

Hawkins and Ericson are now seeking justice and compensation from   Lloyds (LBG) which took over HBOS.  “In 2019 –11 years after the bank ruined me – and, following a review of the handling of my claim, the FCA informed me that it had not been reviewed correctly and that Lloyds’ behaviour “did not meet the standards expected of them,” explains Hawkins.

The couple are now seeking crowdfunding to pursue their claim. The full story is available at https://www.crowdfunder.co.uk/truth-for-justice

If you feel any embarrassment at how ‘big law’ and ‘big finance’ bully the little people it is worth looking at – and probably supporting.

TOPIC: Revelations about racism in cricket and at Yorkshire County Cricket Club in particular.

Nick Le Riche  Partner at BDB Pitmans comments:

 “Azeem Rafiq’s powerful evidence to the Department of Culture Media and Sport’s committee underlines the huge emotional impact on an individual and their family where they feel they have been subjected to race discrimination. 

 “Whilst it is not right at this point to pass judgement on how Yorkshire reacted in this matter, it is very clear that it is vital for all employers, particularly in this day and age, not to make assumptions when employees come forward with allegations of discrimination and harassment ; not to rely on “culture” or “banter” as an excuse, and for them to be prepared to investigate complaints independently and fairly without any pre-judgment.

 “Given the statements made by Rafiq and Yorkshire chairman Roger Hutton to the committee it does appear surprising that no disciplinary action was taken against Yorkshire staff since the investigation report found that  Rafiq had been subjected to racism.  While training and education can be part of the required improvements, it is vital for organisations to show that racism isn’t tolerated and disciplinary action, even if this doesn’t go as far as sacking individuals, makes a very important statement in this respect.”

TOPIC: Amazon’s announcement that it will stop accepting payments made using Visa credit cards issued in the United Kingdom from the New Year.

 SIMON de BOISE, Senior Associate at Collyer Bristow LLP, comments:

 “It remains to be seen whether Amazon will make good on its threat, or whether there is a deal to be done, but either way it is a very significant development in the payments sector.

 “The announcement that Amazon will stop accepting payments made by Visa credit cards demonstrates how much the payments sector has matured in recent years. Consumers have far more payment options available to them now, following the rise of the fintechs, e-money providers and e-wallets etc, and consumer confidence in these products has grown substantially.

 “Such a move against one of the card schemes would have been unthinkable even a few years ago, but retailers are now starting to benefit from the proliferation in the sector and so may feel that they can move away from the traditional players without damaging their businesses.”

TOPIC: The HMI Probation report on the criminal justice journey for people with mental health needs

JABEER BUTT OBE. CEO of the Race Equality Foundation, comments: 

“This report paints a grim picture of a criminal justice system that is failing people with mental health needs. 

“It’s worrying enough that people from Black, Asian and minority ethnic groups are disproportionately represented in both the criminal justice system and in mental health services. But this report also highlights that despite the work done by the Race Equality Foundation to identify some services available to address the mental health needs of ethnic minority people, there is scarcely any evidence that probation leaders are reaching out to source or access specialist services. 

“This is perpetuating a cycle in which ethnic minority communities continue to be denied the tailored support that would prevent them from entering the criminal justice system or needing to use mental health services in the first place.”

TOPIC: The legality of employers adopting a ‘No jab, no job’ policy.

MARIE HORNER, partner in employment law at Langleys Solicitors comments:

Commentary on the situation is plentiful at present but sometimes misleading. Employers might be forgiven for believing that they are entitled to simply dismiss those members of staff who are unvaccinated without further ado, or to place them on unpaid leave whilst a decision is taken. However, such approaches would almost certainly be misguided.

 “Employers must take care to factor in the individual’s contractual terms, and to ensure that all alternative options to dismissal are exhausted. Contracts containing specific terms allowing an employee to be placed on unpaid leave pending a decision are also likely to be the exception to the norm. Care must be taken in relation to each individual employee’s reasons for not having the vaccination, with one eye on, for example, potential discrimination issues.

 “Finally, if the decision is still to dismiss, having considered all factors, employers must ensure that any termination is effected in accordance with the provisions of the employment contract.”

TOPIC: Google’s failed appeal against a €2.42bn EU competition fine over its shopping service. ALINA POPESCU of MPR Partners, comments:

 “In last week’s decision, the General Court resorts to the concept of “self-preferencing” as a theory of harm in its own right under EU competition law. The General Court agreed with the European Commission that Google had abused its dominant position on the general searches market by favouring its own specialised search services (comparison shopping services). 

“Self-preferencing is a target for the EU’s Digital Markets Act, which prohibits this practice when perpetrated by companies deemed as “gatekeepers”. Whilst the Digital Markets Act is still undergoing enactment, the theory of harm used by the European Commission, as vetted by the General Court, as well as the existing climate surrounding big tech and the conclusions of the various market studies commissioned in relation to the development of digital markets legislation will likely serve as a deterrent to big tech against similar practices.”


THE CHANCERY LANE PROJECT: How ‘Off-the-shelf ‘ contract clauses can ‘Keep alive 1.5’

by LEONIE BRABANT, Project Associate

Lawyers are not your obvious choice of people to save the planet. Post COP26 and the compromises that were made to secure the Glasgow Climate Pact, it is clear that if the 1.5 degrees Paris Agreement goal is to be kept alive, private and public sector organisations will need to take significant action immediately to turn their net zero pledges to action. This is where lawyers come in.

Contracts are a much quicker way to implement climate goals than waiting for legislation and regulation to be made and to take effect. Lawyers also have precisely the skills that are needed to help their clients manage the climate risks that are increasing in number and intensity around the world.

The Chancery Lane Project (TCLP) is a collaborative pro bono initiative that provides over 100 free climate clauses to help lawyers and organisations address climate risks and impacts and achieve their net zero targets. The clauses cover multiple practice areas and sectors including commercial supply chains, corporate governance, finance, real estate and insurance. TCLP have recently published their Net Zero Toolkit, which provides a suite of resources to help legal professionals understand net zero concepts and how to incorporate them into their contracts.

Rather than locking in high-carbon emissions and perpetuating business-as-usual, lawyers can add clauses to contracts to address climate risk and impacts and ensure that business operations are aligned with net zero targets.

So if you are worried about the pace of climate action, be part of the solution and start embedding the clauses in your contracts today.


CLOGGING UP THE FAMILY COURTS: Should couples face financial penalties? asks HETTY GLEAVE, partner in the family law team at Fladgate


Hetty Gleave

Government plans to penalise parents for fighting over their children in court is welcome news to the overstretched court system.  However, is it fair?

Mediation has long been encouraged by the family lawyers as a cost-effective and less adversarial way of resolving children disputes.  Warring parents can explore their differences, using a mediator who will keep the conversation focussed and constructive. There seems little justification for using valuable court time and resources to decide, often mundane issues such as amount of time the children spend with each parent, when there is a backlog of more serious care and child abuse cases.

However, many parents adapting to life after separation find it difficult to assume a new co-parenting role and to prioritise their children’s needs above their own feelings. Parents should consider the impact on their children of the physical, psychological and emotional consequences of being caught in the crossfire. Sometimes however, only a judge imposed decision will finalise matters, especially if it carries sanctions for non-compliance.  

Costs sanctions may also be justified in cases where a parent uses proceedings as a threat, knowing that the other parent is unable to fund the proceedings or deal with them emotionally, in the hope they will concede at an early stage.  If matters could have been agreed with a more realistic or reasonable approach, and there are no serious child welfare issues at stake, is it so wrong that the court should retain discretion to decide whether parents should also pay for their day in court?  The public purse must be protected and Courts may soon have the power to read just both the financial and the emotional balance if they feel that the circumstances are right to do so.


The changes proposed in the Cayman Islands’ Companies (Amendment) Bill 2021 are likely to have significant consequences for practitioners in the UK explains CHAI RIDGERS, Head of Restructuring, and NICK HOFFMAN, Cayman Islands Managing Partner of Harneys

 The Cayman Islands government has published a Bill which, if passed, will provide a company breathing space to restructure its debts through a refined scheme of arrangement process. The scheme will be protected by an automatic extraterritorial moratorium (viz. unsecured creditors) and a Court appointed supervisor (a Restructuring Officer (RO)). With this, it is hoped the new process will qualify as a “collective insolvency proceeding” for recognition and assistance purposes by Model Law countries and similar jurisdictions.

The refined scheme process will be available to both Cayman Islands and foreign debtors (with qualifications) and will, so long as “efficacy” is likely, compromise both Cayman Islands and foreign law governed debt. This will maintain and improve the necessary ecosystem for the Cayman Islands to continue as a global restructuring hub.

For English law debt, a Cayman Islands scheme can restructure foreign debt if the Court can be persuaded that it will be given “efficacy” in that foreign jurisdiction either by recognition or the absence of dissentient creditors. The Cayman Islands will therefore continue to follow the “rule in Gibbs”. In view of Brexit, England may no longer be a gateway for European recognition of Cayman Islands Court restructurings, and further recognition applications may need to be made on the continent.

The RO regime has been designed to be used alongside English Court processes. Furthermore, English insolvency practitioners are permitted to be appointed together with a Cayman Islands RO. English legal practitioners are likely to be particularly interested in their role in making applications to “recognise and assist” restructurings within the Cayman Islands courts. A test case is needed, however, to establish the boundaries of any assistance that the English Court will grant. It is hoped that the Grand Court of the Cayman Islands and the English Courts will work together to compromise debts and rescue companies within the spirit of the new regime.


Cadwalader, Wickersham & Taft LLP

Michael R. Bergmann is joining Cadwalader, Wickersham & Taft LLP as a partner in the firm’s Corporate Group and will be based in Washington, D.C.

Formerly with Skadden, where he was a member of the firm’s Executive Compensation and Benefits practice, Bergmann counsels clients on executive compensation, employee benefits and ERISA matters. He devotes a significant portion of his practice to advising major public corporations and private companies on executive compensation and employee benefit arrangements in the context of mergers and acquisitions and other transformative business transactions.

“Michael is a highly experienced and highly regarded executive compensation lawyer,” said Cadwalader managing partner Pat Quinn. “We know he will be an important advisor to our clients and an outstanding leader of our executive compensation practice.”

Excello Law

Not so much a single individual but a whole team from specialist property litigation firm Rex Cowell Solicitors, led by Rex Cowell himself and assisted by Robert McLellan, has moved its practice to national consultancy law firm Excello Law.

The Rex Cowell team, which is based in Kent, specialises in all types of landlord and tenant disputes in commercial and residential properties, as well as advising on land disputes such as easements and boundaries.

“We have successfully transitioned seven firms to Excello Law in recent years and have developed a comprehensive and supportive programme to ensure a seamless and supportive process,” said Joanne Losty, recruitment director at Excello Law. “We are delighted to welcome the Rex Cowell team and we look forward to working with other similar specialist practices who are looking to join a supportive and collaborative firm.”


Taking place online next Tuesday 23 November 6:30-7:45pm online.
The 2021 Heilbron Lecture, entitled “Learning Our Time’s Fables,” will be delivered by Professor Sarah Green, Commercial and Common Law Commissioner at the Law Commission of England and Wales, with an introduction from Lady Hale.

Professor Green has written books and articles on a variety of issues including virtual currencies, blockchain, issues surrounding intermediated securities, smart contracts, sale of goods law as applicable to digitised assets, negligence and wage theft. 
‘Learning Our Time’s Fables’ will explore certain paradoxes of the pandemic, including how we are more connected and yet more isolated than before. 
Sarah will explain how work patterns and their organisation are going to change for the long term and the importance that a diverse range of women’s voices be central to shaping those new patterns.

Why women? Because they have more experience in aggregate of trying to achieve a balance and also because being in the “home” environment is generally more charged for women than it is for men.

Also explored in this thought-provoking lecture will be the topics of what the law can do in relation to flexible working, the embracing of technology for more effective working, as well as the following questions:
Is the law enough, or does there still need to be a cultural shift? Does the practice of law suffer particularly from the reduction in physical presence?
CADWALADER Building Better Borrowers: Bankruptcy-Remote Basics 
In our next installment, Financial Restructuring special counsel Kathryn Borgeson presents a podcast on three of the most important building blocks for a bankruptcy-remote borrower:Special Purpose ProvisionsIndependent DirectorsThe Bad Acts Guaranty


Having trouble downloading? Try listening here.

If you have enjoyed this edition of the LEGAL DIARY please relay on to friends and colleagues.


Edward Fennell’s LEGAL DIARY

Friday 12 November 2021 Edition 80


Members of the Jury/House’ (delete as appropriate)

Note to Sir Geoffrey: Ring any bells?

Readers of a certain age will recall the advertising campaign run by the Victoria & Albert museum which pronounced ‘Great Cafe (with rather nice museum attached)’. Might the same be said of Sir Geoffrey Cox QC?

‘Superb barrister (with occasional Parliamentary appearances)’ – should that not be his description?’

Cox is clearly a man of great talents. We saw that when he was – albeit briefly – Attorney General under Theresa May. But, really, are those talents not wasted if he is mere lobby fodder? After all, plenty of other people could be excellent General Practice MPs without his oratorical skills or presence before an audience. No wonder he decided to direct his time elsewhere. But it comes at a price.

A powerful letter in The Times yesterday by Ronald Thwaites QC observed of barristers who continued to practice at the Bar while also Members of the House of Commons that, “Often their contribution to the court proceedings were nugatory.” In other words, full attention is required to make an impact on a case.

The same seems to apply in reverse. Cox might still be popular with his constituents but his contribution to Parliamentary affairs appears, by all accounts, to have been ‘nugatory’ in recent months. Maybe the time has come to recognise that living a double life as an MP and a practising lawyer is less than the sum of the parts.

The LegalDiarist

In this Week’s Edition


– Careful Where You Go, say Peters & Peters

– New Flight Command Announced for Bird & Bird

– My Tax or Yours? Asks Burges Salmon

Inspiring Story from ‘Next 100 Years’


– LLOYD v GOOGLE Cristina Crețu, Alexander Dittel, Vikram Kumar, Caroline Harbord,





Careful Where You Go, say Peters & Peters

These range from exploitation of financial crime to Sino-US geopolitics, sanctions, mutual legal assistance, extradition, asset tracing, and ‘jurisdiction in a fractious world’.

As Peters & Peters Senior Partner Michael O’Kane comments in his introduction, “Geopolitical instability and regional realignments have always by definition had a profound impact on the shape and intensity of business and personal risk. The last two years are certainly no exception.” So well worth a read.

New Flight Command Announced for Bird & Bird

David Kerr and his successor in 2022 – Spot the difference?

Gradually the last of the titans of the 1990s are leaving the stage with the news that David Kerr will be definitely quitting his role as CEO of Bird & Bird by Easter 2022.

In common with Peter Martyr at Norton Rose Fulbright, Kerr notched up enormous achievements by transforming a previously modest firm into a global power. In Kerr’s case that meant taking a small operation with a turnover of €23m, 70 lawyers and three offices and turning it into a €455m business with 1400 lawyers in 30 offices in a period of just over two decades. By contrast many other firms of that size would have been folded into other, bigger outfits and their names entirely forgotten by now.

Kerr’s rise to the top of Bird & Bird came about partly as a result of breaking the firm’s lock-step system and the emergence of a group of ‘Young Turks’ in the partnership in the 1990s. His key move was to become the Businesses Development Partner and arguing for international expansion. “I warned that if we didn’t act on this fairly soon then in five years the firm would no longer exist,” he recalled in the firm’s history.

It was a risky move but turned out to be wonderfully successful – based largely on Kerr’s capacity for relationship building. However, as with all long-standing inspirational leaders, there will be a big question over whether his successor can maintain momentum and the character of the firm. That mantle will soon fall on Christian Bartsch (pictured above on right) currently serving as co-head of the firm’s international Financial Services sector group and Chair of the firm’s Risk Committee. Kerr will be a big act to follow. Has Bartsch got the heft to do the job?

My Tax or Yours?

Is that the Thames down there? I sometimes can’t remember

Launched earlier this week by Burges Salmon – the perfect Xmas gift for anyone who can’t make up his or her mind whether they are coming or going.

 ResiCheck is  the law firm’s ‘innovative tax App’ that helps people work out whether or not they have tax obligations in the UK.

Targetted at those who might be spending rather a lot of time, for example, in the British Virgin Islands, the App is designed to answer the questions posed by the UK’s Statutory Residence Test.

Users complete a simple questionnaire and receive an instant indication of likely residence status, along with a more detailed explanation. “The App can also be used to plan future residency and keep track of UK visits, with this information emailed directly to the user,” the law firm explains. Every MP-cum-Lawyer should have one.

Inspiring Story

Congratulations to Lynette Wieland, a social mobility ambassador for The Law Society, who has won the ‘Champion of the Year’ award at this year’s Next 100 Years Inspirational Women in Law Awards which celebrate the progress of women in the law since the Sex Disqualification (Removal) Act 1919,

Lynette Wieland

Wieland – who is a health and social care advisory and inquests lawyer at Browne Jacobson – owes her success to her work with a myriad of organisations externally to promote diversity and social mobility. Meanwhile internally she has been central to steering the firm’s diversity and inclusion agenda over the last 12 months with a key role on the firm’s Disability Network and the D&I group.

Wieland herself has dyslexia, dyscalculia and Meares-Irlen Syndrome (a visual stress condition which can lead to difficulties around reading and spatial awareness). Having left school without A Levels she took on an apprenticeship, working at a vocational training provider. She then took advantage of the Law Society’s Diversity Access Scheme (DAS) which provided both LPC funding and work experience opportunities which led to her joining Browne Jacobson and subsequently qualifying as a lawyer.

All goes to show that with the right structures and support the law can be made accessible as a career to ambitious people who, for whatever reason, have missed out on the conventional entry path. Other firms should try it.



Cristina Crețu, Senior Privacy & Technology Consultant at MPR Partners SAYS

This week’s judgment in Lloyd versus Google LLC sets an interesting (and in our view correct) precedent regarding class actions for damages arising from infringements of the data protection rights. The most important takeaway in our view is that, in order for an action for damages to be successful, an interested party must prove that there is a contravention by a data controller of any of the requirements of the data protection legislation and that such contravention caused damages to that individual. Thus, for future reference, any similar action for damages should follow a two-stage procedure: (i) establishing whether the data controller was in breach of the data protection legislation and only afterwards (ii) claiming compensation.

“The second stage will require an opt-in mechanism to be observed, entailing on one side the need to obtain sufficient information from each individual to support their claim with regards to the loss suffered and to determine if the individual is eligible to be part of the group action and on the other side for the individual to opt in regarding such action. It is clear from today’s judgement that general damages cannot “be awarded on a uniform per capita basis to each member of the represented class without the need to prove any facts particular to that individual”, as Mr. Lloyd had requested. Whilst class actions suffered a setback today, if interested parties are willing to learn some lessons from this case, the future of actions related to compensation for data protection breaches in the UK does not have to be bleak.

Alexander Dittel, Partner at Wedlake Bell SAYS

The Supreme Court confirmed there is no automatic right to compensation without proof of cause. While an individual claim with such proof might have succeeded, litigation funders will be forced to rethink strategy for representative data protection litigation.

As framed, the claim was inconsistent with the compensatory principle. It is not possible to claim a uniform sum for each of the different types of iPhone users who might have been affected in very different ways.

The judgment will not stop vexatious claims for compensation for trivial breaches of data protection law which often cite Lloyd v Google as justification. However, the concept of “loss of control” will no longer serve as a sword. According to the Supreme Court, none of the requirements of the 1998 act are predicated on “control” over personal data by the data subject.  So, while the case does not offer an absolute defence, it will come as a relief to many organisations and might provide ammunition to successfully fight vexatious claims, something that is currently reserved for the larger well-resourced organisations.

Big technology companies are not off the hook. This action is over but the growing privacy community is likely planning its next attack. The Supreme Court explained that the action could have been used to establish Google’s breach of the law which would then help individual claimants to seek specific damages.

Vikram Kumar, Principal, Cornerstone Research SAYS

According to the Supreme Court, claimants seeking to bring opt-out representative actions in privacy related matters in the UK may not seek compensation for intangible “loss of control” of personal data as a result of any breach of data protection laws. Instead, they must demonstrate clear evidence of material damage or distress.

The Court also notes that representative actions are not suitable for determining damages if individual assessment of damages is required. The judgment has made it harder for claimants to bring opt-out representative actions in privacy related matters in the UK. In a recent judgment (Merricks v Mastercard) the Supreme Court lowered the bar significantly for claimants bringing representative opt-out class actions in competition matters.

Caroline Harbord, Senior Associate at Forsters SAYS

Large data controllers will no doubt be taking a massive sigh of relief. The judgment narrows the scope for group claims arising from data breaches where no material damage has been caused by the breach. The court held that to sustain a claim under s.13 of the DPA, the relevant breach must have caused material financial damage or distress. A claim cannot be sustained simply because of the fact of the breach alone. Had the Supreme Court decided this point the other way, and allowed claims on the basis of the data breach alone, irrespective of damage caused, this would have potentially massively increased the exposure of data controllers to large scale group actions, where, for example, a data controller accidentally sends a communication to the wrong mailing list.

The practical effect of the judgment means the Supreme Court has deprived the affected class (who have had their data stolen and commercialised by Google) of an effective remedy for this wrong, and puts the English courts at odds with the judicial approach taken by the US, Canadian and Australian courts. While the Supreme Court held that it would have been open to Mr Lloyd to invite the court to decide the primary issue of liability in representative proceedings, with individual follow-on claims to assess damages, the Supreme Court acknowledged that this would not be a cost effective, and therefore viable, approach.

It is surprising that the Supreme Court overturned the Court of Appeal’s decision to grant the permission, given that the Competition Appeal Tribunal has the ability to allow large scale opt-out group claims to proceed, even where primary liability has not been established (see Le Patourel v BT). Had Mr Lloyd’s claim involved an element of anti-competitive behaviour on the part of Google, it is possible that the outcome would have been quite different. The judgment will also represent a major setback for other contemplated representative actions including the action against Oracle and Salesforce relating to the collection of data for ad-tracking via third-party cookies, which had been stayed pending the Supreme Court’s judgment. For these reasons, it is hard not to feel the Supreme Court has been unduly conservative in its approach, and shied away from an opportunity to impose a new check and balance on large scale data controllers.”


Peter McHugh, Partner, Clarke Willmott LLP

Coming to a river or beach near you Image courtesy of Britannica

The Environmental Bill currently going through the House of Lords places a duty on government to publish a plan by September 2022 to reduce sewerage discharge from storm overflows.

Having failed to head off defeat last month, after peers voted overwhelmingly in favour of an amendment to the Environmental Bill, the government should also be placing a duty on water firms to stop dumping raw sewage into rivers and seas.

Last year the water sector dumped raw sewage into rivers and seas at least 400,000 times for a minimum of 3.1 million hours, according to figures submitted to the Environment Agency – though the actual figures are widely believed to be much higher.

The Surfers Against Sewage 2020 Water Quality Report points out that in 2019/2020, 6% of “swimmable days” were lost due to sewerage discharge into bathing waters in England &Wales. Further, Southern Water, a company who have been in the press as of late, failed to issue the majority of their sewerage spill notifications during the 2020 bathing season. The latest research shows that health risks posed to swimmers remain the same as they were in the 1990s.

As well as sewage, every year there are about 3,000 pollution incidents involving oil and fuels in England and Wales. Oil spillages affect water quality in a number of ways, including making drinking water unsafe to drink and destroying wildlife and the eco systems that sustain them. Oil spills also reduce oxygen supplies within the water environment. 

We also continue to fail to address the issue of plastics. We know that long term use and exposure of plastics to high temperatures can lead to leaching of toxic chemical constituents into food, drink and water. Microplastics entering the human body via direct exposures through ingestion or inhalation can lead to an array of health impacts, including inflammation, genotoxicity linked to cancer and cardiovascular disease.   

We have a raft of legislation designed to protect just England and Wales, each act and regulation has a role and a good intention to protect us, whether it is to regulate water quality or to prevent water pollution. Much of this is now covered by the Environmental Permitting Regulations, the intention being to regulate water and sewage industries. Other parts are to introduce a new framework for managing the many demands placed on the sea, improving marine conservation and opening up access for the public to the English coast.

With such a raft of legislation available to a relatively small area such as England and Wales, which is failing to enforce and stop water companies from routinely discharging raw sewerage into rivers, then what chance do the smaller poorer counties of the world have to protect their water supply? The Office for Environmental Protection is being asked to investigate why water companies had been able to continually fail to meet duties placed on them by law to treat sewerage.

Despite the legal framework, we need to stop the water companies discharging sewerage into rivers and coastal waters. The spills last year of 400,000 times, via a combined sewer overflow, lasted for 3.1million hours. Yet the overflows are supposed to be used only in extreme weather to relieve pressure in the sewerage system. 

Let us hope the Environmental Bill going through the House of Lords at the moment is properly enforced and not just another piece of legislation for the water companies to find ways around.


The introduction of The Pension Schemes Act 2021 has prompted much debate about the Pensions Regulator’s (TPR) new powers to issue criminal proceedings and hefty fines of up to £1m for certain conduct relating to defined benefit schemes. Many in the industry have been concerned about how these powers will be used and, in particular, what route TPR will take when it has more than one enforcement option available.

The consultation notes that TPR may use a combination of measures, including statutory notices, financial penalties and criminal proceedings.Statutory notices will aim to secure an action, outcome or remedy, while fines and criminal proceedings are to punish more serious behavior.

One thing that is clear from the consultation is that criminal proceedings will generally be issued instead of statutory notices or financial penalties if there are aggravating factors such as previous breaches or dishonesty or for serious cases of deliberate and wilful conduct. This draft policy will be reassuring to those concerned that criminal proceedings were going to be issued too readily.

The consultation also sets out TPR’s policy on financial penalties. In short, TPR will look at two things, (i) the “culpability” of those involved and (ii) the level of harm to the scheme and saver outcomes. If culpability and harm to the scheme are both judged to be low, fines are unlikely to exceed £400,000. However, if there is high harm and high culpability, in the most serious cases, TPR may issues fines of up to £1m.

It’s important to note that these policies have not yet been finalised and are currently in draft form. The consultation will be open until 22 December. Feedback will be considered before the final policy is published in early 2022.


Antonio Acuña, a former government advisor and one of the country’s leading data specialists, is joining Kennedys in a specially created role to harmonise reporting analytics and insight, skills and literacy, governance, curation and asset management, engineering, innovation, and product development. So quite a job!

Acuña led the landmark launch of data.gov.uk, the first website dedicated to helping people find and use open government data, which was widely recognised as the benchmark for data portals worldwide. He also designed and delivered Defra’s award-winning ‘Noise Mapping England’ project, which used interactive maps to show the impact from road and rail networks in a bid to tackle noise pollution.

“I am passionate about change, particularly when it’s driven by data, and I believe Kennedys has a unique opportunity to transform the way legal services are delivered,” said Acuña. “It’s a competitive industry and it’s not enough to simply modify or adapt anymore. Businesses must be bold, to reimagine and embrace new ways of working, and Kennedys is doing just that. I’m really excited to be joining now and being a part of that culture change, which I know will deliver huge benefits to everyone.”

Andrew Leaitherland, the former Chief Executive Officer at DWF has been appointed as a strategic advisor to Horwich Farrelly, legal advisers to the insurance and commercial sectors.

Andrew Leaitherland

Having been Managing Partner and then CEO of DWF Leaitherland transformed the firm from a modest outfit based in the North West of England firm into a 4,300-strong international firm with offices in 33 locations around the world. DWF Group plc was floated on the main market of the London Stock Exchange in March 2019.

Commenting on the appointment Horwich Farrelly CEO and Managing Partner, Ronan McCann said, “Even without the current crisis, the legal market is changing faster than ever with increasing pressures on improving efficiencies without compromising quality. Andrew was hugely successful at growing DWF from a £29m turnover business to over £330m and its that experience which we are very interested on as we enter our own growth phase.  We are looking forward to working with him on our own ambitious plans.”



Building Better Borrowers – Bankruptcy-Remote Basics In our next installment available on Wednesday, November 17th. Financial Restructuring special counsel Kathryn Borgeson will discuss three of the most important building blocks for a bankruptcy-remote borrower:
Special Purpose Provisions
Independent Directors
The Bad Acts Guaranty     
In Case You Missed It!Global Litigation partner Ellen Holloman presents a podcast, “Court Impact on Securitization,” which discusses two of the most interesting lawsuits impacting the securitization industry today, relating to the National Collegiate Student Loan Trusts.Subscribe to our podcast series on Spotify to never miss an episode.     Listen     


 CMS’s Talking to #LeadHers podcast now available

The Talking to #LeadHers series features members of the CMS equIP start-up accelerator programme and showcases the work of inspirational female founders – providing an in-depth view of the entrepreneurial journey and the developments taking place across their industries. 

In the latest episode CMS partner Katie Nagy de Nagybaczon is joined by Rosie Wainwright, Regional Manager at UK-wide social mobility charity Career Ready, who shares her experience of mentoring and discusses how mentoring programmes transform the lives of young adults and make a lasting difference in their communities. This episode also incorporates insights and advice from previous podcast guests, including CMS equIP founders and women in leadership roles. The episode is available here and on all the usual podcast platforms.

This episode complements the recently launched Career Ready mentoring programme at CMS, in which everyone at CMS (including CMS fee-earners, business support, trainees and partners) is being encouraged to sign up as a mentor. Career Ready has a network of over 3,300 volunteers across the UK and those interested in signing up as a mentor can get involved via their website: https://careerready.org.uk/volunteers/

CMS has a long-established relationship with Career Ready and the firm has run masterclasses and skills webinars for the young people on their programme over a number of years.


Have a good week-end!

Edward Fennell’s LEGAL DIARY

Friday 5 November 2021 Edition 79 Guy Fawkes Issue

Diary news, commentary, insights, appointments and


Lots of fizz and bang – But what happens next? Call in the law.


The declaration to assembled bankers, lawyers and corporate apparatchiks by COP26 Supremo Alok Sharma that “You are all ‘Swampys now” threw a banger into the conference and caused quite a stir – not least within the family of the tree-climbing environmental protester himself who denounced the whole shebang as a prime example of green-washing.

Blind prejudice or plain realism?

Only time will tell but the sincerity with which a succession of speakers addressed the hybrid event Role of Law in Climate Actionorganised earlier this week by Advocates for International Development (A4ID) in partnership with CMS and Bloomberg suggested that members of the ‘business elite’ are now rolling their sleeves up and prepared to get on with the real work of reducing pollution.

For a start Stephen Millar, Managing Partner of CMS, announced right at the start that he, for one, hated tokenism. “Tokenism sucks,” he rasped.

So that means it is now down to practicalities. And to coincide with COP26 A4ID launched its new publication SDG13 Legal Guide to Climate Action as a practical guide to what lawyers should now be doing. As Yasmin Batliwala, the Chief Executive of A4ID, said, “The guide is a unique resource providing a fundamental analysis of the role that law can play in the achievement of the SDGs.”

CMS’s Olivia Jamison agreed. “Raising awareness of the SDGs is enormously important,” she said. “As lawyers we’re in an amazing position to contribute.”

Let’s hope that after the COP26 fireworks the law perseveres to get the SDG job done.

The LegalDiarist

For more go to: https://www.a4id.org/sdg/climate-action/

In this week’s edition

Short thought of the Week:


And the winner is – the Bar’s Pro Bono Awards!

Let’s Pal Up Over Pro Bono

– Homeward Bound for Farrer & Co.

Kennedys Offers Extra Day for Mental Health

The Language of Law


– And Finally – COP26 again



THE REVIEW OF THE LASTING POWER OF ATTORNEY SYSTEM: Who is it supposed to support? by Abigail Howson

+ LEADING LAW FIRMS Retaining top talentby Iain Blatherwick

APPOINTMENTS OF THE WEEK at Wedlake Bell and Peters & Peters

And the winner is – the Bar’s Pro Bono Awards

Advocate, the Bar’s national charity, marked its 25th anniversary generously this week with the announcement of its awards for members of the Bar who have done exceptional pro bono work over the past year. There had been 46 nominations across nine categories, including young and junior barristers, QCs, Chambers, clerks and a brand-new category – the John Collins Pro Bono Excellence Award – so competition was tight.

Among the winners was Brick Court’s Sarah Abram who picked up Junior Pro Bono Barrister of the Year for being the only barrister willing to travel to Luxembourg in the pandemic to represent an environmental NGO at a hearing, ‘The outcome of which had a profound effect on environmental campaigners’ ability to challenge highly polluting infrastructure projects’. So quite heroic!

The Pro Bono Queen’s Counsel award went (for the second time) to Anthony Metzer QC from Goldsmith Chambers for forming a specialist team to advise on the use and extension of international sanctions regimes to finance restorative justice for victims of sexual violence in conflict, with particular focus on the Yazidi victims of Da’esh.

Pro Bono Chambers of the Year went to 12 King’s Bench Walk for encouraging its members to dedicate nearly 700 hours to Advocate cases. Pro Bono Chambers Professional was awarded jointly to Leigh Royall from Spire Barristers and Patrick Sarson from Gatehouse Chambers for their dedication to making space in barristers’ diaries to undertake pro bono.

The gold star for perseverance, however, must surely go to Rhys Davies of Temple Garden Chambers and Ben Keith of 5 St Andrew’s Hill who jointly won International Pro Bono Barrister of the Year for their ‘remarkable work helping a British man wrongly imprisoned in Dubai for 13 years in a very complex case spanning multiple jurisdictions’. There has to be a film in that.

Meanwhile Lord Goldsmith QC, founder of Advocate and Chair of the judging panel said, “I’ve seen people take on much more than the commitment they signed up for because they want to help someone. I believe that doing pro bono is part of being a professional and these nominations demonstrate that this work is also close to the heart of other members of the Bar. Congratulations and thank you to all the winners and nominees, and to those whose efforts are unseen.”

Let’s Pal Up Over Pro Bono

Meanwhile more on lawyers’ Pro Bono activity this week from IT company Paladin which, in partnership with Clifford Chance and five other firms, announced that it is expanding its pro bono platform to the United Kingdom so as to improve links between lawyers and those seeking pro bono legal assistance.

Paladin’s technology creates what they call a ‘curated list of opportunities’ for volunteer lawyers based on their individual interests and preferences. It then manages and tracks the work which is undertaken. According to Clifford Chance Pro Bono Director Tom Dunn, “Pro bono work has never been more important, both for its impact on society and how it can turn a good legal workplace into a great one. We believe it is important not only to do good, but to be smart about how we do it, and Paladin is the perfect partner for any law firm chasing the same goals. With just a few clicks, Paladin better matches those with skills they want to offer to those in need, leaving everyone better off.”

Clifford Chance has already had extensive experience of Paladin in its US practice. This led, says the firm, to an increase of more than 93% in pro bono hours while at the same time saving around 100 hours of administrative work in one year alone. In addition, it introduced the firm to new community partners. “Which means we’ve ultimately been able to have a greater impact,” the firm says. Sound like a Win-Win all round.

Homeward Bound for Farrer’s

Now that’s what a PROPER law firm looks like

In a clear sign of the gathering momentum towards a partial return to office life Farrer & Co has announced that from this week all members of its team should be back in Lincoln’s Inn Fields for at least 40 per cent of the week.

As a concept this would have been literally unthinkable just two years ago. But that’s the Covid effect – it’s transformed the way we see almost everything in terms of both time and space. And the added benefit for Farrers is that the period away from the office created the opportunity for an office refurbishment which will facilitate this new ‘agile’ working framework.

In particular the fresh approach means that all meeting rooms have been upgraded with new technology to facilitate more effective hybrid meetings that allow for better parity of experience between those working from home and those in the office.  Among other changes a new wellness and multi-faith room has been created for private worship and reflection, as well as a dedicated privacy room for nursing parents.

Farrers is not the only firm to transform itself over the past year or so but those who have not done so might kick themselves for missing the opportunity. As Rachel Lewis, partner and Board Member at the firm commented, “When the pandemic struck, we acted quickly, not only to offer support to our people but also to listen to what they really wanted from us. We plan to continue to evolve our work-life policy, in collaboration with our employees and we will trial and finesse the new policy and systems over the next few months.” 

Kennedys Offers Extra Day for Mental Health

While Farrer & Co. has now plugged in its new agile system of working Kennedys is still working on its vision for the future. According to an announcement this week it is now in the middle of a consultation programme, starting in London, asking colleagues what they want their workplace to look like in the years ahead.

Suzanne Liversidge, Global Managing Partner said: “While home working has been popular, the number one reason we’re hearing from people for coming back into the office is the social interaction.

“The pandemic really forced us to stretch our thinking about how best we could look after everyone. We can’t promise the rooftop pool, but we do want to create an environment that is as welcoming and supportive as possible, and we want to hear people’s views on what that looks like.”

Nonetheless some innovations have already gone ahead including a series of art classes, run live across three different time zones, in which more than 100 people around the world took part.

“The response was absolutely amazing. People only needed a pencil and a piece of paper, and I think that simplicity made it work,” said Christopher Malla. head of healthcare and strategy board member.“

Maybe the most important change, however, is the most recent – the introduction of an annual ‘wellbeing day’.

The wellbeing day is a bonus, but by calling it that we’ve found that it’s encouraging people to think differently and use it to do something for themselves,” said Caroline Wilson, global HR director. “Over 600 people have already requested their wellbeing day so far.” I bet they have!

The Language of Law

Are they speaking a foreign language? Image courtesy of Resolution

Family Law – maybe for all the wrong, sad reasons – is becoming increasingly important in national life. But among many people there is probably little real understanding of its jargon.

So this week Fletcher Day launched theFamily Law Language Project (FLLP – not to be confused with the firm FliP, Family Law in Partnership) which aims to make family law easier to understand, less hostile and more accessible to everyone. 

There is clearly a need as highlighted recently by Helen Adam, Chair of the Family Solution Group. “A new language around family breakdown is needed to ensure safety and protect children of parents who separate,” she said. “If that is to happen then we, the family professionals, must lead the way to help politicians, the press, the public and ultimately the parents who separate understand a safer approach when parents live apart.”

The Family Law Language Project is the result. Through the use of social media and accessible content, FLLP seeks to:

  • Help those who come into contact with family law to better understand the terms that are used;
  • Identify terms that are often misunderstood, or that have become outdated or offensive;
  • Identify and inform people about misuse of family law terms in the media;
  • Identify language that is aggressive or which is not focussed on the welfare of children and suggest alternatives.

Fletcher Day family partner Emma Nash who conceived the project summed it up.

“The words we use are important,” she said. “We need to re-think the language of family law and move away from terms that promotes conflict and adopt a simpler, more accessible terminology that puts the welfare of children and their families first.  Too often, I hear parents talking about having a ‘custody battle.’ This is an example of an outdated and inappropriate term that has no legal meaning, is not child focussed and increases conflict. This is only one of many examples of how poor use of language is negatively affecting those who need the law to help them. It is time to change this.”

For more go to the FLLP website.

And finally….It’s COP Again

To link with COP26 Lex Mundi (the global law firm network) and its Dutch member Houthoff has updated its  Global Climate Change Law Guide which analyses policies, measures and legislation related to climate change regimes in more than 35  jurisdictions around the world.

According to Lex Mundi the interactive, user-friendly guide provides a tool for in-house counsel and external advisers to compare and contrast laws across different jurisdictions and markets. “Users are able to select jurisdictions of interest and create side-by-side custom reports to benchmark both legal developments in relation to climate change regimes, and  to set priorities on actions to address the climate crisis,” says Lex Mundi. “We hope that, by curating this guide, in-house counsel and their advisers will more easily be able to navigate the complex web of frequently updated regulations and legislation as national leaders seek swift action to avert the climate crisis.”


Sadly, it’s all ended in tears
Image courtesy of UK Parliament

The Government has got itself into a right old mess over the Owen Paterson affair. But maybe it’s a matter of going back to first principles of natural justice suggests Rebecca Thornley-Gibson

If an employer decided midway through an employee misconduct investigation to carry out a wholesale review of its disciplinary policy with the consequence of halting the progress of that individual’s case for an indeterminate period, many would question the fairness and rationale of the timing.

Yet this is what the government saw fit to do in the Owen Paterson lobbying case where the independent Commons Standard Committee had determined there had been multiple breaches of lobbying rules.

Although it the government has now exercised an embarrassing U-turn in its plans to overhaul the conduct review, the controversy should raise many questions about natural justice and fairness when carrying out conduct investigations in a workplace environment.

The right to a fair hearing is a fundamental human right and that extends to employees being able to put forward their representations during a fair, thorough, transparent and objective investigation and any subsequent disciplinary process that is likely to lead to a sanction being given.

Owen Paterson had the ability to make representations during his investigation but what appears to be lacking from the MP conduct system is the right to appeal Standards Committee findings.

In the employment arena that right to appeal forms part of a fair and reasonable disciplinary policy and without it employers are likely to be unsuccessful in defending allegations of unfair process.

Another fundamental lynchpin of a fair investigation and disciplinary policy for employees is clarity. An employee is entitled to be made aware of how matters will be investigated and what outcomes and sanctions are tabled. If an employee found out midway through a process that the proverbial goal posts were being changed and the process was being paused to put in place a new system, the cries of unfairness should be deafening.

If the government had real concerns about the conduct system it operates, why not let the Owen Paterson case that had been independently reviewed finish and carry out a review for all new conduct investigations.

Rebecca Thornley-Gibson is a partner at DMH Stallard and employment law expert.

The review of the Lasting Power of Attorney system: Who is it supposed to support? by Abigail Howson

Abigail Howson

Recognising that the system for granting Lasting Powers of Attorney (LPA), is ‘cumbersome, bureaucratic and complex’, the Ministry of Justice and Office of the Public Guardian is seeking to simplify the process and implement a predominately digital service. The main problem is that those who grant LPAs are not ‘digital natives’. Taking the process online will alienate many of them, or worse, they might be taken advantage of by unscrupulous “helpers”.

Most people who make LPAs need help. They are often elderly: some are vulnerable and many do not trust the internet. The current paper system safeguards those at risk by finding out what people seeking an LPA really want and helping to prevent “the lovely neighbour”, who is actually a crook, from making and registering an LPA fraudulently.

Advice and protection offered to people considering an LPA online may be limited. Although LPAs require a set form, there are many important choices, such as the identity of the attorneys, whether or not they can sell the house, or open and close accounts. If the process is as poor as online applications for probate have been, many LPAs will not fulfil individual needs because relevant points are not considered.

LPAs are complex with potentially very serious repercussions. The current system is not without flaws, but migrating the application online will not ameliorate them.

Delays in implementation exist not because of the process by which an LPA is created, but because staff in relevant financial organisations lack appropriate knowledge. Providing attorneys with access codes will not solve that problem, but may instead give unscrupulous attorneys greater scope to embezzle funds.

The current process could benefit from pragmatic change, but a digital only solution fails to serve those who have the greatest need to make LPAs. Hopefully, decision makers will agree.

Abigail Howson is a specialist private client lawyer and partner at Excello Law http://www.excellolaw.co.uk

LEADING LAW FIRMS Retaining top talent by Iain Blatherwick

To conclude our regular series on management issues Iain Blatherwick, former Browne Jacobson Managing Partner turned coach, reflects on how the challenges of retaining top talent have become more complex over the last 18 months and some steps to safeguard against this.

A recent survey by recruiter Robert Half reported that nine out of ten of the chief executives surveyed were worried about their ability to retain valued people. Factors identified ranged from burn-out and people wanting a change, through to the impact on corporate culture of remote working as there were fewer integration activities at work, less teamwork and a growing distance between colleagues. It is also apparent that geography is much less of a factor in employment decisions, so the opportunities for people to find new roles, without even having to leave home in some cases, has increased.

Some businesses are using this to support a drive for people to return to offices, but that hasn’t always landed too well either so clearly a balance needs to be struck.

For creative businesses, none of these challenges are insurmountable and I highlight two areas where leaders should focus:

1. Line management – the quality of a line manager can make or break the relationship between employer and employee. It is all very well having values and goals as a business, but if your line managers do not live up to those values or do their job properly then you have failed at the first hurdle. All too often line-management is thrust upon people as they progress, without any thought about whether they will be good at the role and without development or training. You need to be clear what authority the line manager has, so they can be transparent with their team. Take promotion – a LinkedIn Workforce Learning Report this year stated that employees with progression options stay at their businesses twice as long, so do your line managers have authority to discuss promotions with their teams and if so are they clear what the criteria and opportunities are?

Choose your line-managers wisely, invest in them and be clear what the scope of their role is – and if they are good, trust them don’t tie their hands.

2. Culture – A lot is said about culture, but what does that actually mean for an employee? People want to be proud of where they work, but also want a sense of belonging and it is this latter which is key at the moment. There may well have been less integration opportunities, but that need not be the case. The best businesses are using the opportunity for virtual meetings to involve people in a range of activities which would never have been possible through relying on getting everyone in a room. Shared learning sessions or facilitated discussions with topics including gender, race, mental wellbeing, financial wellbeing, through to the challenges facing working parents or learning about the menopause are happening and I have seen far more open, honest and engaged discussions than I have experienced before. There are also now so many more opportunities for fantastic online social events too, which are more inclusive than before, where for example childcare, distance from home or even the nature of the event might have restricted those who could attend to a usual core group.

The office clearly does still have role to play as it helps embed team spirit, support supervision and benefits new team members, but anyone waiting for everyone to be back is missing an opportunity to engage their people in a new way and help with learning and providing support in a broader way than previously. This will provoke deeper conversations and create stronger bonds than ever before.

Iain Blatherwick spent 11 years successfully leading law firm Browne Jacobson. Since stepping down from the managing partner role, Iain has completed the Academy of Executive Coaching’s (AOEC) practitioner Diploma Programme in executive coaching and is accredited by the European Mentoring & Coaching Council (EMCC). He recently launched Space + Time, an executive coaching programme aimed at c-suite level business leaders which offers support in horizon scanning and key decision making.


at Peters & Peters and Wedlake Bell

Emma Ruane has been appointed a partner at disputes law firm Peters & Peters. Ruane trained with the firm, qualifying into its civil fraud and commercial disputes team in 2010 and has particular experience in high value, multi-jurisdictional civil fraud and competition litigation.

Emma Ruane

Ruane is currently acting for the Republic of Mozambique in the US$2 billion “Tuna Bonds” Commercial Court proceedings against Credit Suisse and Abu Dhabi-based shipbuilder Privinvest and the for the Secretary of State for Health in a £250 million claim against a pharmaceutical company for breaches of EU and UK competition rules. “Emma is a brilliant lawyer with tons of experience of fraud, competition and multijurisdictional commercial disputes. Clients love working with her. She’s a great addition to our partnership,” said Jonathan Tickner, Head of Civil Fraud and Commercial Disputes at the firm.

Emilia Petrossian has been appointed as a Trade Mark Attorney within Wedlake Bell’s IP & Commercial group. This is an internal promotion and represents fast progress for Emilia who joined Wedlake Bell as a Trainee Trade Mark Attorney in August 2021 and qualified as a Trade Mark attorney just last month.

Her expertise covers clearance searches, advising on worldwide filing strategies and the prosecution of UK, European Union and International trade mark and design applications through to registration. Emilia is also experienced in opposition and cancellation proceedings, as well as company name disputes.“The IP & Commercial group at Wedlake Bell has an outstanding reputation and has provided an environment for me to thrive and develop the skills required to provide the firm’s clients with first class service,” she said.


 REMINDER -Oil & Gas Transition Series from Pinsent Masons Email banner image
Join us for the three remaining webinars in Pinsent Masons’ Oil & Gas Transition Series. 

In these sessions our sector experts will be joined by industry leaders to discuss the challenges and opportunities for the oil and gas sector as it seeks to transition to a low carbon future.

If you were not able to attend the first two webinars in this series, please find links to the full webinar recordings below:

• Decommissioning or repurposing of existing oil and gas assets
• The people challenge   Please note that the “Book” buttons are unique to Edward Fennell. If you know someone else who would like to attend, they can sign up to any of our webinars here. 
Technology, data and the energy transition17NOV202108:30 – 09:30 GMTPredictive maintenance, connected workers and virtual offshore visits all make operating offshore safer and more efficient than ever but how can disruptive digital technologies and data be harnessed to help speed up the transition to a low carbon future? In this edition of our O&G Transition Series, our panel shall consider this question from the perspective of a company operating in the oil and gas sector, but taking account of good practice and developments in other sectors, as well as looking at the issue through the wider lens of delivering a digitalised end to end energy system that supports our energy transition. Speaker:
Stephen Ashley, Head of Offshore Energy 4.0, Net Zero Technology Centre
Neil Hehir, Partner, Pinsent MasonsChris Martin, Partner, Pinsent MasonsAndy Strowbridge, Associate Director, BVG Associates
Book your place 
Funding the transition 30NOV202108:30 – 09:30 GMTHow will the oil and gas transition be funded? What impact will the increasing importance of ESG and ethical investing have on the future of the industry? What role will climate change and sustainability play in future funding decisions?Speaker:Gillian Frew, Partner, Pinsent MasonsTushar Kumar, Partner, Kerogen Capital 
Ananya Modi, Assistant Director at Rothschild & Co 
Tara Schmidt, Sustainability & ESG Finance Director at Lloyds Banking GroupBook your place 
Climate change in the courts: Current trends and future risks08DEC202108:30 – 09:30 GMTHow are climate change issues being raised in the Courts to challenge Government and corporate decision making and activity? We will review the key challenges and issues brought before the Courts in the UK and elsewhere and consider the trends and risks of litigation looking forward. Speaker: Jacqueline Harris, Partner, Pinsent MasonsFurther speakers to be confirmedBook your place 
‘Tax, Trusts and Trysts’Thursday 18th November from COLLYER BRISTOW

Join members of Collyer Bristow’s Private Wealth team for their annual seminar, exploring the world of US/UK trust and tax planning, HMRC investigation powers, family law for international clients and more… 

 This replaces our annual Geneva Private Wealth Seminar: whilst we are very disappointed not to be able to catch up in person, we hope you can join us for an equally engaging webinar.

Date: Thursday 18 November

Location: Online (details to follow)Time: 16:00- 18:00 London17:00-19:00 Geneva
Register here  View the team


Enjoy the fireworks tonight!

Edward Fennell’s LEGAL DIARY

Friday October 29 2021 Edition 78

Diary news, commentary, insights, appointments and e-vents from the legal world


What change exactly?

COP26 – is it all over bar the Glaswegian rats invading the Ovo Hydro at the Scottish Events Centre and gobbling up all the canapes? As Fitch Ratings commented earlier this week, a key risk is if outcomes from COP26 are seen as underwhelming, with policy resolve from major signatories to the Paris Agreement wavering from their commitments, and specifically the 2030 commitments, which require more immediate and expensive actions.

There is no need for any further apocalyptic visions of what might happen if nothing substantial is extruded from the next two weeks. We know the story. But what is clear is that – along with the scientists and the engineers – the lawyers also have a role to play in trying to make stick whatever agreements are eventually made. Because failure to do so will only encourage the likes of Insulate Britain (but on a larger scale) to take matters into their own – very sticky – hands.

And (almost) no-one wants that.

The LegalDiarist

In this week’s edition


– We’re Going to Build a Wall, says Hogan Lovells

– Stop Polluting – That’s the Law according to CMS

– Black Young Professionals backed by Browne Jacobson

– Paralegals Getting Ahead

Crossing Continents



Covid vaccinations for children: Who decides? by Kate Elliott

Cracking the Family Court backlog: Can arbitration help? by Hannah Gumbrill-Ward,

Transparency Review leaves Children too Exposed by Mark Harper



We’re Going to Build a Wall, says Hogan Lovells

This must stop here

The great fear about COP26, obviously, is that it will be mostly hot methane and not much of ‘the beef’ (so speak). That’s why it is encouraging that Hogan Lovells seems to be doing something very practical by involvement in the GREAT GREEN WALL project. ‘Building walls’ has acquired a rather acid taste of late. But not in this case. The Great Green Wall is an African-led initiative that aims to build an 8,000km barrier of plants and trees at the southern border of the Sahara desert, from Senegal in the west, to Djibouti in the east, in the hope of rebuilding what used to be a thriving and fertile region. As Susan Bright, the firm’s Global Managing Partner for Diversity & Inclusion and Responsible Business, explains, “The Great Green Wall presents solutions to many of the challenges facing Africa and the global community as a whole, including climate change, drought, famine, conflict and migration. We are very proud to be supporting this pioneering project. Delivering on our commitments to being a Responsible Business is one of our firm’s five strategic priorities.”

The project is burnishing its credentials as a member of the Legal Sustainability Alliance, the Net Zero Lawyers Alliance and the American Legal Industry Sustainability Standard.The trailer for the Great Green Wall documentary can be viewed here. For further information on the firm’s pro bono impact see “Earth Fixers” a special series on climate and biodiversity action in partnership with Pioneers Post. Earth Fixers | The Social Enterprise Magazine – Pioneers Post

Stop Polluting – That’s the Law according to CMS

You cannot accuse the younger generation of being laggardly over climate change. Led by Greta Thunberg their activism has been striking (sometimes literally). But maybe it needs to be finessed somewhat because in democratic societies it is the rule of law – for the time being at least – which counts. That is why it is helpful that CMS has partnered with Young Citizens, an education charity, to create ‘Climate action: Using the law to drive change’, a new educational programme which aims to develop UK secondary school students’ understanding and critical thinking around climate action.It also tackles the United Nation’s Sustainable Development Goals (SDGs), why they are important and how they are monitored.

“We are proud to have a long-standing partnership with Young Citizens,” says Penelope Warne, CMS’s Senior Partner, “With this latest programme, we are working to help young people better understand climate action and the role of the law in driving change. Achieving climate goals is a collective responsibility and, as a future facing firm, CMS is actively working to make a positive impact in the communities in which we work and live. We have aligned our Responsible Business programme with the SDGs and have committed to Net Zero by 2025.”

Black Young Professionals backed by Browne Jacobson

Bridget Tatham

Taking place virtually over yesterday and today has been this year’s Black Young Professionals (BYP) Network Leadership Conference. The event focuses on ‘empowering and equipping young black professionals to become future leaders within their organisations’ and it aims to offer a platform for young black professionals and students to make ‘long lasting and impactful career and community connections’.

Supporting the event is Browne Jacobson which will be running a virtual recruitment stall at the event where those e-attending will have the opportunity to engage and network with members of the firm’s recruitment team and volunteers from its internal Race Ethnicity and Cultural Heritage community (REACH).“We are incredibly proud to support BYP, its allies and its community partners on this fantastic event which strives to elevate black professionals and promotes equity and equality in the workplace,” said Browne Jacobson partner, Bridget Tatham who is an Executive Sponsor for Race. “These themes really resonate with us as a firm. We are passionate about enabling our people to be authentic by striving to create an inclusive, diverse and vibrant workspace where everyone is celebrated for their differences. In doing so, our aim is to ensure that everyone has fair and equitable access opportunities ahead.”

Paralegals Getting Ahead

It’s not often that the recruitment of paralegals gets name-checked by a law firm in its public relations activity. But that was what happened this week when Berkeley Rowe announced that it had recruited two litigation paralegals, Anita Niaraki and Berivan Genc and went on to provide their career background.

Maybe that is a sign of the growing appreciation by law firms of the importance that paralegals make to the success of their businesses. Which is why it is good news that NALP (the National Association of Licensed Paralegals) has announced that its courses will now be available at seven more colleges across the UK. “This will provide paralegal students with more options when it comes to where to study and what method of study works best for them,” said Amanda Hamilton, Chief Executive of NALP said. “We have been giving people access to Ofqual-recognised paralegal qualifications since 2009 and are delighted to be extending that opportunity to people across the country with the new colleges that are coming on board. Paralegals have an increasingly important role to play in the legal system, as well as within other organisations, and it is a genuinely great choice for people looking for a career in law, who may not have the time or finances to go down the traditional routes to becoming a solicitor or barrister. We are very much looking forward to working with these colleges and the new paralegal students.”

The new centres are Guildford College, City of Oxford College, Bracknell and Wokingham College, Leicester College, South Thames College, Walsall College, Manchester College and the courses are available both online and on campus. For more information see: https://www.nationalparalegals.co.uk/training-centres/

Crossing Continents

Franco-Anglo relations in choppy waters – except in Africa Image courtesy of the BBC

Anyone who knows anything about English history understands that the natural state of Anglo-French relations is mutual belligerence rather than peace and co-operation. So a punch-up in the Channel (or La Manche if you prefer) over fishing is a just a return to normal custom and practice.

Oddly enough, however, there is a current example of harmony between the English and French ways of doing things – and it is in the law. The catch is that it’s in Africa. This is where Gide, the emblem of French lawyers at their most elegant, has signed a strategic co-operation agreement with Bowmans, a Kenya-based firm. Gide, of course, has extensive clients in francophone Africa while Bowman does business in the anglophone countries. “This is a very exciting development” said Bowman’s Senior Partner for Kenya, Richard Harney, “We have a long-standing relationship with Gide and have worked with their lawyers for a number of years. The co-operation agreement strengthens this relationship and will help us to better serve our clients in West and North Africa, with particular emphasis on francophone countries.’

 Meanwhile Jean-François Levraud, Managing Partner of Gide commented, ‘We have known the Bowmans team for more than a decade. We both share the same values and professional excellence. We have a long history of successful joint assignments that have always benefited our clients. This next step in our co-operation will allow us to support our clients in their most complex pan-African transactions.”

If only the two of them could be brought together on Jersey.



Southampton’s favourite son

 “The announcement by the Chancellor today is a step in the right direction but there will still be a shortfall of funding to tackle the justice crisis, restore public confidence and reduce the backlogs in our courts and tribunals. Moving forward the Bar Council will be engaging with the profession, courts service and Ministry of Justice to rebuild our justice system.”

 Derek Sweeting QC, Chair of the Bar Council

 “Rishi Sunak’s announcement in yesterday’s budget that part of an allocated £324m would be given to the Family Courts over the next year will be positive news for anyone currently dealing with the Family Courts in England.  Whilst it still remains to be seen how much of the £324m the Family Courts will receive, it is hoped that this much needed injection of cash into the Family Court system will help increase capacity and tackle the enormous backlog of cases that have been exacerbated by Covid-19.  To this backlog have been added 66,357 newly issued cases between April and June 2021, an increase of 14% on the same quarter in 2020 according to the latest Family Court statistics. These new cases have included most case types including financial remedy (76%), private law children (11%), adoption (11%) and matrimonial (7%) cases, although there has been a decrease in domestic violence and public law cases.

“Sunak also confirmed that £200m has been granted to complete the flagship £1.3bn court reform programme by 2024/25.  This is particularly welcome just a week after the Farquhar Committee, instigated by Family High Court judge, Mr Justice Moylan earlier in 2021, published its reports.  The Farquhar Committee is headed by His Honour Judge Farquhar, Lead Judge of the Kent, Surrey & Sussex Financial Remedies Court, and made up of a geographically diverse collection of judges at all levels of the judiciary and practitioners.  It was asked to consider and report on how the Court should continue once the pandemic is finally over and parties are free to attend Court buildings. Mr Justice Mostyn also asked them to consider whether the processes and procedures that are in existence in the Financial Remedies Court could be improved and to consider this alongside the function that remote hearings may have to play in the future.  Many of the suggested changes put forward by the Farquhar Reports, including helpful amendments to financial disclosure forms in financial proceedings and having dedicated members of staff at the court to deal with financial remedies would most definitely help reduce the legal costs of the parties involved in family proceedings and shorten proceedings but would be costly for the court to implement.  Hopefully with the announcement of the additional funds allocated in yesterday’s budget, we will see steps taken towards the rolling out of at least some of the suggested measures raised by the Farquhar Committee in the next year or so.”

Sarah Ingram is a Partner at Winckworth Sherwood


Covid vaccinations for children: Who decides? by Kate Elliott

The battle against Covid is now being fought largely in schools and colleges rather than in care homes. But mass vaccination is a sensitive subject.

In September 2021, Professor Chris Whitty (Chief Medical Officer for England) confirmed that 12 to 15 year-old children who do not have underlying health conditions, would be offered a single dose of a regulator approved COVID-19 vaccination.  This decision came despite the Joint Committee on Vaccination and Immunisation not recommending mass vaccinations of this age group, as the vaccine would provide only marginal benefit given that they are at low risk from the virus. 

As we enter the winter season, and with concerns about rising cases particularly amongst school-aged children, childhood vaccinations remain a live issue.   If parents (whether separated or together) cannot agree whether their child should be vaccinated, or the parents and the child cannot agree, then the court will need to intervene. 

Children under the age of 16 do not have the automatic right to consent or refuse medical treatment.  A child’s opinion may however override that of their parents if a court finds them to be Gillick competent.   A healthcare professional will consider the child’s age, maturity, and their understanding of the decision they wish to make, to include any risks, before advising the court on whether they are Gillick competent and therefore able to override their parents’ decision. 

In the first instance, whether a child should be vaccinated is primarily a decision for those with parental responsibility. When those individuals cannot agree, one may apply to the Court for a Specific Issue Order that the child should receive the vaccine or for a Prohibited Steps Order to stop it.

The Court’s approach to childhood immunisations in most cases focuses on whether the immunisation is in the child’s best interests, backed by significant scientific research.  The approach that the court will take to the Covid-19 vaccination programme is yet to be seen given how recent an issue it is but based on the current scientific research, it will be difficult to claim that having the vaccination offers a medical benefit to those children without underlying health conditions. 

However, the weight given by the Court to the health benefit issue versus the emotional, psychological, and educational benefits that may flow from children of this age being vaccinated is going to be interesting to see.  If the government were to impose restrictions on those that are unvaccinated, it would likely add weight to the court ordering a child to be vaccinated.  Family circumstances may also be relevant, such as whether the child lives with a vulnerable or elderly relative.

One thing is for sure, the volume of information and debate circulating on the vaccination programme for children is only compounding the confusion.

 Kate Elliott is a Partner at Family Law Partners.

Cracking the Family Court backlog: Can arbitration help?

With a 72% rise in the number of applications made for a financial remedy to the Family Court over the past year, the relatively under-utilised method of arbitration may offer a solution says Hannah Gumbrill-Ward, Solicitor at Winckworth Sherwood

The Family Court is not currently in a good place” stated Sir Andrew McFarlane, President of the Family Division, at the recent Jersey International Family Law Conference, later adding that “the substantial backlog that existed before the pandemic has now grown very substantially”. Indeed, the latest Family Court Statistics revealed that there were 66,357 new cases started in the Family Court in April to June 2021, up 14% on the same quarter in 2020, with the most notable increase seen in the number of applications made for a financial remedy, which rose by a huge 72% from April to June 2021, when compared with the same quarter in 2020. Unsurprisingly, given this backdrop, it is becoming more and more important for people to engage with forms of alternative dispute resolution rather than relying solely on the Family Court to help them resolve their disputes.

Many people new to the Family Court system will have at least heard of mediation, not least because it is a requirement for most prospective applicants in proceedings to attend a mediation information and assessment meeting (MIAM), even if they subsequently chose not to engage with the process further. But few will be aware of arbitration and it is relatively under-utilised in family law proceedings. Despite this, it is a vital and incredibly effective way to resolve disputes and many practitioners are increasingly calling for the greater use of this valuable resource.

What is arbitration?

Arbitration is often described as a mirror alternative to court proceedings as the parties appoint a suitably qualified person to make a decision about their dispute outside of a formal court room. The parties agree to be bound by the reasoned written decision of the arbitrator which is called an Award in financial matters or a Determination in children matters.

The arbitrators Award or Determination will be binding upon the parties but if the decision is wrong or unfair in law, it can be appealed in the same way that a party could appeal a judgment made in traditional court proceedings as confirmed by Mr Justice Mostyn in July 2021 in A v A (Arbitration Guidance) [2021] EWHC 1889 (Fam).

What are the benefits of using arbitration?

  1. Time savings. Not only do you avoid the backlog in the Family Courts, where it will most likely take in excess of a year for your matter to get to a final hearing, but you are also guaranteed that your matter will be heard on a certain date. All too often now we are seeing final hearings vacated by the court at the last minute due to judicial unavailability with no guarantee of when the matter will be relisted.
  2. Cost savings. By speeding up the process and guaranteeing a hearing date, there are significant savings on ongoing legal fees.
  3. Emotional cost savings. It also cuts down on the stress of court proceedings.  Rather than matters dragging on for an extended period of time, they can be dealt with quickly and with more certainty.
  4. Control. The parties can select the arbitrator, the date and time of the arbitration and the venue. There is also less time pressure on the arbitrator and the arbitration itself, which means that the arbitrator will have adequate time to prepare and read all the relevant documents, and that time will not be limited by court sitting hours or another matter suddenly appearing in the judges list.

Can you use arbitration in disputes involving children?

Although perhaps more known for its use in financial proceedings, it is possible to use arbitration in disputes involving children and generally speaking, any issue between parents or other persons holding parental responsibility will be covered by the Children Arbitration Scheme. This includes:

  • Where a child should live, including shared living arrangements;
  • Visiting arrangements including holiday time to be spent with a non-resident parent;
  • Decisions about a child’s education.

Often, arbitration in children matters is suited to those cases which involve a single-issue determination, such as whether a child should attend a certain school or in relocation cases (which are covered under the scheme provided the relocation is to certain foreign jurisdictions).

While many people will view arbitration as just additional expense and will not initially be willing to bear the cost of the arbitrators’ fees, the overall cost (and other) savings that can be gained by utilising this method of ADR cannot be underestimated.

Hannah Gumbrill-Ward is a solicitor at Winckworth Sherwood

Transparency Review leaves Children too Exposed

Mark Harper

The Family Division’s Transparency Review will allow for more media/public access and reporting in the Family Courts. Not such a good idea, says Mark Harper

 “The current law in this respect is a mess. Although this review will provide more transparency on family proceedings, it also opens the door to potentially dangerous outcomes for children – from mental health to hesitancy to testify, who, through no fault of their own, are forced to have one of the most difficult times of their lives made publicly available for years to come.

“Justifying decisions in children’s cases should not take priority over protecting children and the identities of them and their parents.

“Almost all of the children and young people in a survey for the 2010 Children’s Commissioner for England’s report on the views of children and young people on media access to family courts were opposed to the decision to permit reporters into family court hearings, with the majority feeling the issues addressed by court hearings are private. These issues are considered ‘painful, embarrassing and humiliating’ for children and the majority of respondents said they were not the business of newspapers or the general public.

“Most worryingly about this report were findings that children will be unwilling or less willing to talk to a clinician about ill-treatment or disputes about their care, or about their wishes and feelings once they are told a reporter might be in court. This could have significant implications on the future well-being and safety of the child.”

 Mark Harper, is a Partner at Hughes Fowler Carruthers.


Peter Stafford, the Managing Director of Cartmell Shepherd Solicitors, has been elected as chair of the UK200Group Lawyers’ Group which consists of sixteen law firms from across the country. Launched in 2020, the Group is composed of independent, quality assured chartered accountancy and law firms and provides a forum for member law firms to promote their expertise and share best practice.The appointments were announced ahead of the UK200Group’s Annual Conference which will be held in Edinburgh on November 10-12

Stafford said, “I am delighted to have been asked to be chairman, and this is a great platform for the law firm members and an opportunity to expand the business we do. Cartmell Shepherd Solicitors became a member of the UK200Group around five years ago and it’s an invitation only group where you have to go through a rigorous approval process so we feel honoured to be in the company of such high esteemed businesses.

The previous chairman was Mark Lello of Parker Bullen Solicitors


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 The in-house lawyer – working effectively across the organisation  

In conjunction with Thomson Reuters, please join us for a discussion led by experienced lawyers, on the role of the in-house lawyer and how to make the transition from private practice to in-house work.
Date:  23 November 2021  Time: 2.00pm-3.30pm (GMT)

This session is for all in-house lawyers and may be of particular interest to those in their early years of in-house work and those thinking of moving in-house.  In this discussion we expect to explore a range of issues relevant to this important topic, including:What is the core role of the in-house lawyer? Working with your managers and colleagues.The wants and needs of internal clients.What happens if they don’t seek necessary advice?Using external lawyers.Making a contribution across your organisation; andThings I learned the hard way.  Please click the Accept button to register for this webinar. Once you have registered you will be sent a confirmation email with full details.If you have any questions, queries or comments, please contact us at admin@legalleadership.co.uk ACCEPTDecline invitation

CADWALADERS’S Finance Forum Focus Series: Court Impact on Securitization  
Be sure to listen in to the next installment of the Finance Forum Focus Series which will be released on Wednesday, November 3. Global Litigation partner Ellen Holloman (above) will present a podcast on two of the most interesting lawsuits impacting the securitization industry today, relating to the National Collegiate Student Loan Trusts. These Delaware litigations, involving both the Consumer Financial Protection Bureau and private plaintiffs, have been very closely watched by the structured finance industry because the outcomes could upend decades of practice in the securitization industry and upset the long-settled expectation of participants.  You won’t want to miss it!  

Having trouble downloading? Try listening here.Please visit our website if you want to catch up on prior installments of the Finance Forum Focus Series.

We hope that you’ve enjoyed this edition of the Legal Diary – and maybe even found it useful. If so please relay on to colleagues.
 Please continue sending your diary news items, comments and legal analysis to fennell.edward@yahoo.com