Edward Fennell’s LEGAL DIARY

Friday October 15 2021 Edition 76

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


This will make you feel scratchy

To vax or not to vax?

Across Europe and North America the move towards the simple principle of ‘No vax, no job’ is gathering pace. In Britain, meanwhile we are doing the usual shilly-shallying and tying ourselves up in bureaucratic knots. As Rustom Tata, chairman and head or employment at law firm DMH Stallard, explained, “In the absence of legislation, it is highly unlikely that it would be considered a lawful and reasonable instruction to require staff to be vaccinated.”

In short, employers in the UK do not have much power over this. The paradox, of course, is that employers also have the responsibility for maintaining a healthy workplace. It’s an intractable problem and whatever you do is wrong. Emblematic of our times.

The LegalDiarist

In this week’s edition


A Question of Privilege

Faire Enough

Well payed, City

Here’s what Diversity of Opportunity Looks Like

Miss this and face the penalty


– GO FOR THE PRE-NUP (whoever you are)



by Daniel Powell is a Senior Litigation Paralegal and Leigh Crestohl




APPOINTMENTS OF THE WEEK by Hunters Law and Clarke Willmott


A Question of Privilege

It’s always a minefield trying to work out which documents are privileged and which are not. So Herbert Smith Freehills has stepped into the breach and created a new web-based app to help in-house counsel traverse quickly and safely this particular hazard.

The ‘English Law Legal Privilege’ web app – entirely developed in-house by the firm – provides clients with the information they need both on their mobile phones and via their desktops.

By analysing answers to a series of questions it can determine whether a document is likely to be covered by legal advice privilege and/or litigation privilege under English law. An on-screen report then provides a summary of its status.

The app was created by a partner Alexander Oddy along with Professional Support Lawyer Maura McIntosh, Senior Legal Automation Specialist Bilal Syed and Senior Associate Andrew Wells and the project stems from what was originally a hard copy (remember those?) version of the Herbert Smith Freehills ‘Handy Client Guide to Privilege’. The new technology makes the analysis quicker, easier and more convenient for in-house counsel wanting guidance on-the-go. “This is an exciting example of digital transformation of our business in practice,” said Alexander Oddy. “We’ve built this app entirely in house on a no-code platform in a matter of weeks through Practice Group, Innovation and Legal Ops collaboration. I think it will be a real help for busy in house lawyers.”

To find out more, click here.

Faire Enough

Congratulations to Browne Jacobson for clinching the Innovation award at the fifth annual UK Social Mobility Awards 2021.

Designed to promote social mobility the awards give recognition to businesses and organisations that demonstrate innovative ways of advancing social mobility within the workplace.

Browne Jacobson’s success was based on its FAIRE (Fairer Access into Real Experience) initiative which was devised by the firm’s recruitment manager, Tom Lyas to offer students equal access to work experience that can pave the way for a career in the legal sector.

It what was the UK’s biggest virtual work experience and legal career insights event ever to take place FAIRE worked in partnership with the organisation Young Professionals to engage with over 10,000 participants across the UK.

“We are incredibly passionate about creating and delivering genuinely innovative solutions that help aspiring legal professionals from under-represented communities get equal career opportunities,” said Tom Lyas. “We know people from lower socio-economic and minority backgrounds are still hugely under-represented within the legal profession and we know we want and need to be part of that change so I am delighted our work around FAIRE and championing social mobility has being recognised.”

Browne Jacobson is currently ranked 5th in the Social Mobility Employer Index across all employers.

Well payed, City

‘We’re only here to pay for the NHS’ Image courtesy of Evan Evans

Lawyers and accountants probably live in different universes culturally and spiritually but nonetheless they are usually lumped together economically. And that is certainly so as far as CityUK is concerned. The high profile lobbying group for the City has been making the point in its latest report that legal and accounting activities form a ‘Key part of the ecosystem which underpins the UK’s status as global financial centre’ and they punch far above their weight when it comes to tax.

In total, 755,800 people are employed by the UK’s legal and accounting sectors, 2.3% of the total UK workforce. According to the report these groups along with financial services, contributed an estimated £96.1bn in tax in 2020, 12.9% of total UK tax receipts, while making up 10% of total UK economic activity. “This underlines the disproportionate positive contribution the industry makes to the UK’s capacity to pay for key public services,” says CityUK to imply that without private sector lawyers, accountants and bankers Britain’s welfare state would be even more threadbare than it is already.

Indeed, the report, ‘2021 Total tax contribution study for UK legal and accounting activities,’ shows that the tax contributed by the two sectors made up 2.8% of total UK tax receipts in 2020. This is, apparently, equivalent to the combined capital spending budgets for the Departments of Health, Education and Housing, Communities & Local Government , providing an ‘important and resilient source of government revenue which can support its levelling-up ambitions’.

“Legal and accounting activities are a key part of the UK’s world-leading financial and related professional services ecosystem, and a source of high-value jobs right across the UK,” said Anjalika Bardalai, Chief Economist & Head of Research, TheCityUK.

“This report highlights the continued and increasing fiscal contribution the legal and accounting sectors make to the UK. This contribution has become even more striking in light of the economic damage wrought by the Covid-19 pandemic. The relative resilience of the legal and accounting sub-sector make it well-placed to make a strong contribution to the UK’s post-pandemic economic recovery.”

Here’s what Diversity of Opportunity Looks Like

It won’t attract much coverage in the wider legal press but the appointment Selina Gonzalezas a Dispute Resolution solicitor for Cartmell Shepherd Solicitors in Northumbria offers an insight into what increasing diversity means in practice.

As a teenage mum Selina gave up on her ambitions of becoming a lawyer. But twenty years later, thanks to a lot of grit and the chances given by an Access to Higher Education Diploma at Carlisle College and then admission to the University of Cumbria to get a law degree, she gained a second shot at qualification. Taking full advantage of every opportunity she then gained the backing of Mark Aspin, Head of Dispute Resolution at Cartmell Shepherd, to complete the process and secure a job.

So what’s the message? The educational system must be in place to support ‘non-traditional’ entrants. Employers must be open minded and supportive. And the individuals themselves need to be passionate and persevering. It’s not easy but it should not be impossible.

Miss this and face the penalty

And finally, there’s yet another scandal around an innocent Brit being given an attrociously heavy sentence by the courts in the Gulf But, predictably, the British Government seems to stand aside and does nothing.

Read the story and be appalled at https://detained-in-dubai.prowly.com/160000-billy-hood-what-will-the-british-fcdo-do-to-help-the-footballer-sentenced-to-25-years-for-cbd-oil


– GO FOR THE PRE-NUP (whoever you are)

Kirsty Bertarelli was smart enough to write the All Saints No 1 hit “Black Coffee”. So how come she did not have the wit to negotiate herself a substatial pre-nup when she married mega-rich billionaire Ernesto resulting in her pathetically small divorce settlement of £400M? Yes, she’ll be on the tills at Tesco next week. It’s an object lesson in the need for advance planning argues Jo Carr-West, Partner at Hunters Law.

With assets like these at stake, I cannot imagine that Kirsty Bertarelli did not take legal advice about the possibility of proceeding with a divorce in this jurisdiction.  It is likely that she was advised that the court here would have given the existing Swiss prenuptial agreement considerable weight and the outcome might not have been any different, despite the purported generosity of the English divorce court.

“Clients and family lawyers alike should take this as a sign that a good prenuptial agreement, entered into with all the right safeguards, is worth its weight in gold.”



by Daniel Powell and Leigh Crestohl

An arbitration panel at the International Centre for the Settlement of Investment Disputes (ICSID) recently awarded Air Canada repatriation of outstanding profits held up by Venezuela. This is yet another example of an international investor relying on a bilateral investment treaty (BIT) to pursue a state for losses. Like many such disputes, it occurred against the backdrop of turbulent economic and political factors: the devalued Bolivar; and a political leadership crisis which, following US sanctions, added to the country’s economic crisis.

Political factors create challenges for arbitration tribunals. Due to sanctions, a party may be unable to engage and pay lawyers and experts, creating an “inequality of arms”. Quantum and valuation issues are essential features of investment arbitration. Here, Venezuela’s quantum expert was unable to be cross-examined at the hearing on its report, leading the Claimant to try unsuccessfully to exclude it. The Tribunal also had to consider a request from representatives of “interim President” Guaidó to exclude counsel appointed by the Maduro Government from acting further in the case. This contest between Presidents, each claiming legitimacy, has led to similar requests in a number of cases. Here it was denied.

For the investor-state dispute resolution system to have continued legitimacy, arbitrators need to do justice to the parties and be seen to act fairly. Parties and arbitrators should do all they can to reduce the potentially disruptive impact on proceedings of sanctions and external political factors. Where a party is perceived to have been placed at a significant disadvantage, the process is undermined. Venezuela was permitted to rely on its quantum expert report in this case, but a differently constituted Tribunal might have decided differently where a party had other alternatives. It can only be hoped that parties and arbitrators will generally take actions to reduce the disruptive impact of sanctions and political events.

Daniel Powell is a Senior Litigation Paralegal and Leigh Crestohl, a Partner at Zaiwalla & Co.


Last week NatWest pleaded guilty to money laundering failures – but was it a ‘failure to prevent’? asks John Binns

Did NatWest just admit ‘failure to prevent’ money laundering? Headlines seem to suggest it did, in the first prosecution under money laundering regulations (‘MLRs’). But the truth is more nuanced.

Companies can generally be guilty of offences only via their ‘directing minds’. In money laundering, that person must either know or suspect that property they are dealing with represents the proceeds of crime.

NatWest pleaded guilty not to this, but to breaching the MLRs, which transpose the EU’s money laundering directives (‘MLDs’). These made breaches a criminal offence but gave supervisors powers to deal with them civilly.

Importantly, such a prosecution requires no proof of money laundering. This is different from the ‘failure to prevent’ offence in the Bribery Act, which makes a company liable for bribes by an ‘associated person’.

So, what did NatWest do in this case? Their customer was a jeweller and gold dealer, which said it expected a turnover of £15m a year and would make no cash deposits. The bank failed to institute ongoing monitoring, and the customer deposited £264m in cash.

Interestingly, while the investigation proceeded, the UK was opting out of the latest MLD, which requires a corporate offence of money laundering, but also exploring ways to make corporates more liable for economic crimes, including via the Bribery Act model.

The scale of the activity in this case doubtless justifies the decision to deal with it criminally. Putting a bank through this sends a message about the seriousness of its obligations. But is it wise to call it ‘failure to prevent’?

Ultimately, the question is what role we want companies to have in tackling crime. For decades, we have required strict procedures of banks, but dealt with failures civilly. This case may prompt a rethink of our answer. Perhaps the better question is whether we call it corporate money laundering – and if not, why not?

John Binns is a financial crime partner at BCL Solicitors LLP in London. BCL specialise in domestic and international corporate crime, financial crime, regulatory enforcement, and serious and general crime.


Global tax reform has been at the forefront of ministers and finance leaders’ agenda for some time now, with calls to change international rules so that large multinationals are paying their ‘fair share of tax’.

But while the UK’s Chancellor of the Exchequer talks about ‘milestone progress’ being made in ensuring multinational corporations are properly held to account where their tax liabilities are concerned, are these ‘sweetheart’ tax deals really so sweet?

The answer, of course, for the ordinary taxpayer who runs the risk of becoming collateral damage, is ‘No’. However, a glimmer of hope shines in the darkness with renewed calls for a crackdown on dealings between governments and multinational corporations.

A report has published recently, as part of ongoing demands for the drastic improvement of public scrutiny of corporate taxes from MPs of the All-Party Parliamentary Group on Anti-Corruption and Responsible Tax, in which MPs have asked for transparency and an end to sweetheart deals between tax authorities and the corporate giants.

This follows on from the G20 agreement to introduce a 15% corporation tax as a direct attack on the tyranny of the Gig Economy, imposed mercilessly by the so-called Silicon Six (Google, Amazon, Facebook, Apple, Microsoft and Netflix).

But what does the G20 agreement mean in practice, for the Silicon Six and the average taxpayer?

I do not believe that the G20 agreement will deter multinationals, despite their threats, to operate domestically. What is clear is that they will need to invest more locally to optimise their tax payable in each country. The situation will improve local business sales as the Silicon Six will increase their costs. It will also increase domestic tax receipts and equalise tax pressure across the board.

We are facing a revolution in the global economy. The G20 finance ministers, backed by the OECD, have agreed a radical departure from a century old international tax bargaining souk, where multinationals forced States to offer the lowest possible corporation tax rate and advantages to attract their millionaire investments.

Once the initial adjustments have been made, the main beneficiaries will be domestic businesses as some of the Silicon Six will lose their unfair competitiveness. The job market will be impacted as the zero-hour type of economy will be heavily challenged when multinationals have lost control and power.

León Fernando Del Canto is an expert in international tax and legal affairs. He heads Del Canto Chambers and is a dual qualified English barrister and Spanish abogado.



Mark Stiebel has joined Hunters Law LLP as a Partner in the Family Department.

Stiebel was formerly at Charles Mia, a boutique Mayfair firm, where he built up a substantial following of High Net Worth and Ultra High Net Worth clients, many of them based abroad. Originally from South Africa, Stiebel is admitted to practice there as well as in England and Wales. He advises clients on all aspects of private family law, with extensive experience in complex financial remedy cases, with a particular expertise in cases involving onshore and offshore trusts and family arrangements. He also has a complementary practices in trust and private client litigation, commercial litigation and art law.

Commenting on his move to Hunters, Henry Hood, Head of the Family department said, “Mark is a fantastic lawyer who brings a wealth of experience to our highly skilled team. I am thrilled that he has chosen to join us and look forward to working with him as we continue to develop Hunters’ family department.”

Kim Klahn is joining the corporate and commercial team at Clarke Willmott in Birmingham where she will advise on a broad range of corporate matters.

She joins from Lodders Solicitors LLP where she was partner and head of the company’s corporate and commercial department and gained particular expertise in the sale and purchase of care homes.

Rayner Grice, head of Clarke Willmott’s Birmingham office, said, “Kim’s appointment strengthens our corporate offering in Birmingham and is part of the next stage of our Birmingham office growth plans.

 “The firm’s commitment to continuing a flexible approach to working will enable us to maximise our development of the office and we are delighted that Kim will be working with us on this.”



Finance Forum Focus Series: Spotlight on LIBOR Transition
Be sure to tune in to our upcoming webinar, “Spotlight on LIBOR Transition,” on Wednesday, October 20.

Cadwalader partners Lary Stromfeld and Jeff Nagle will discuss the latest LIBOR transition developments, including: The deadlines for the rest of 2021 (and beyond) and a discussion of the ramifications for Q4 2021; Various rates in the market; and  Legislative solutions, including the statute enacted in New York and Federal legislation currently pending. You won’t want to miss it!      
Lary StromfeldPartner
Financial Services    
Jeffrey NaglePartner
      Stay Tuned! Sign up if you want to receive updates on future installments of the Finance Forum Focus Series.   In Case You Missed It! Listen to last week’s podcast, ESG Trends in the CMBS Market.      

  Listen         Having trouble downloading?  Try listening here.

The Legal Diarist is now back from the his travels and looks forward to resuming the Legal Diary for the Autumn. Please continue to send your legal Diary stories, comments and legal insights to


Edward Fennell’s LEGAL DIARY

Diary items, insights and comments from the legal world

Friday 8th October 2021


Insulate Europe from Britain?

Sitting in a bar in central Italy earlier this week, watching the TV news was quite an experience. The Insulate Britain disruptions to the road network were getting extensive coverage from an incredulous TV reporter. The fact that these self-appointed eco-warriors had taken control of the highway and were even denying passage to people trying to reach a hospital was shocking beyond words. “This could never happen in Italy!” she was saying.

She was probably right. Italy is a strange mix of chaos and, when it wants, cool state efficiency. The combination of the Carabinieri and local police forces would probably have stopped the demonstrators in their tracks. More important though, even the most militant Italian demonstrators would have had pity on the sick and their visitors. Seen from abroad neither British law enforcement nor British society is an appealing sight.

The LegalDiarist   

NOTE: The LegalDiarist is currently travelling so this is a ‘pocket edition’ of the Legal Diary. We will return to the normal format later this month. Please continue to send your Diary stories, legal insights and comments to fennell.edward@yahoo.com

In this week’s edition


  • Golden Dreams Await Supreme Court Judgment
  • Stage Set for Change at Shakespeare Martineau
  • Osborne Clarke Bridges Career Gap Between Law and Deprived Communities
  • Increase in Employment Tribunal Causes Since The Covid Pandemic







E-VENTS The latest from KIDSLAW


Golden Dreams Await Supreme Court Judgment

‘To recognise or not to recognise’ that was the big question recently when the Taliban rolled over (with remarkable ease) the democratically-elected government in Afghanistan. The trite, get-out answer given by UK government ministers and spokespeople was that ‘We recognise countries not governments’ – which certainly seemed a novel way of looking at the matter. It also sounds rather at odds with the situation with regard to Venezuela where the UK Government apparently recognises Mr Guaidó as the interim constitutional President of Venezuela rather than the previous incumbent Mr Maduro who claims to have been democratically elected at the last elections.

Of course, many Western governments reckon that those elections were rigged. But, whatever your view, the hard reality is that Mr Maduro is still effectively in charge in Venezuela and Mr Guaidó is not. All of which feeds into the long-running case in the Supreme Court in London over the 31 tonnes of Venezuelan gold reserves held by the Bank of England on behalf of the Central Bank of Venezuela (BCV). To whom, if anyone, should they be handed over? Or more specifically who has the authority to instruct the Bank of England to do so?

With the Court’s judgment now eagerly awaited the position of Mr Guaidó seems to be weakening internally. Primero Justicia, the second most significant opposition party in Venezuela, has indicated that it is withdrawing its support for him due to doubts about his management of overseas assets. “It is surreal to imagine that Mr Guaidó and his appointees, whose management of foreign assets and dealings with foreign governments are regarded with suspicion by his own coalition partners, can exercise authority over such vast sovereign assets for the benefit and in the interests of the Venezuelan people,” commented Sarosh Zaiwalla, Senior Partner of Zaiwalla & Co, who is representing the BCV in the UK litigation.

What the Supreme Court will conclude is anyone’s guess. But no doubt representatives of the Taliban will be looking on at the outcome with particular interest.

Stage Set for Change at Shakespeare Martineau

Week-in, week-out we see that innovation in law firm management and operation can come from firms of any size and any region. A striking example of this can be seen (and felt) in the Stratford-on-Avon office of Shakespeare Martineau which has just had a markedly eco-friendly makeover. This includes pallet-clad walls and ceiling features, booth seating with sustainably sourced fabric, and tables made from recycled yoghurt pots – tasty! (See below for the full rota of the project’s e-friendly ingredients).

As the firm observes this is ‘The first in Shakespeare Martineau’s property portfolio to undergo a major makeover to reflect modern, new ways of working’. Nonetheless it is part of a much bigger and longer-term programme which includes 30 ‘ambitious responsible business pledges’ among which are achieving net zero by 2025 and becoming carbon negative by 2030. Meanwhile the firm has also recently announced its pending B Corporation status which means that it is legally required to consider ‘the impact of business decisions on its people, customers, suppliers, communities and the environment; ensuring a balance between purpose, people and profit’.  So it’s a big agenda.

“We’re delighted with the finished look of our Stratford hub – it reflects our personality and aspirations,” said Karen Walker, the firm’s chief transformation officer. “Over the coming 24 months, our wider portfolio of hubs will undergo refurbishments to become modern, eco-friendly spaces that promote collaboration between teams.” So, literally, watch this space.

Check it out: Shakespeare Martineau’s innovations in the refurbishment of its Stratford office means that more than 80% of materials were sustainably sourced, recycled or reused – including wall cladding made from reclaimed pallets; tables created using Forest Stewardship Council wood; stools made from recycled cosmetic bottles; upcycled chairs, which have been sprayed and re-covered in sustainably sourced fabric; carbon neutral flooring solutions; neon lights made from recycled acrylic; energy efficient LED lightbulbs; and finishing touches, such as Beach Clean coasters created using EVA plastic saved from our oceans.

Osborne Clarke Bridges Career Gap Between Law and Deprived Communities

There’s lots of rhetoric out there right now about diversity and levelling up in the professions but we are still waiting to see a critical mass of programmes which deliver results. One which might do the job is ‘The Bridge’, a joint initiative between Osborne Clarke and Visionpath which aims to provide long term skills and employability support via partnerships with schools with high levels of disadvantage.

The geographical focus is on secondary schools across cities in Osborne Clarke’s UK network namely Skinner’s Academy in London, John Madejski Academy in Reading, and Merchant’s Academy in Bristol.

“With ‘The Bridge’, we have a great opportunity to make a massive impact on the future prospects of young people in our communities,” comments Visionpath’s Founder Patrick Philpott. “Research has shown [that] just four interactions with an employer during secondary school can drastically improve a young person’s opportunity to succeed. The type of sessions and experiences Osborne Clarke is creating through ‘The Bridge’ will offer exactly the sort of experience and impact that will make a difference for young people.”

This is Osborne Clarke’s first ‘holistic’ schools partnership programme which aims to facilitate access to the legal profession and law firms. The offer includes half-a-dozen key experiences including first hand accounts of individual lawyers’ ‘career journeys’, diversity events, insights into career options in the legal industry, apprenticeship workshops and one-to-one mentoring and advice on higher education entrance.

“It’s really important to us that we make an impact in the communities in which we work,” said Bola Gibson, Head of Inclusion and Corporate Responsibility at Osborne Clarke. “The Bridge is a long-term commitment to these schools, their students and our people to help prepare the next generation to thrive.”

Osborne Clarke has been involved with the Social Mobility Business Partnership (SMBP) charity since 2014.

Increase in Employment Tribunal Causes in Covid Time

Research by Wright Hassall – see below – has revealed the level of increase – since the start of the pandemic – in the most common causes of employment tribunal claims. The figures provide a fascinating insight into what has been going on over the past year and offers clues into where there might be most misunderstanding of the law.

1.  Part Time Workers Regulations… 767.08%

2. Age Discrimination… 530.07%

3. Others… 108.22%

4. Transfer of an undertaking – failure to inform and consult… 84.16%

5. Unfair dismissal…10.71%

6. Public Interest Disclosure… 10.65%

7. Written pay statement… 10.46%

8. Race discrimination… 5.24%

9. Written statement of reasons for dismissal… 0.56%

So what can be concluded from the figures?

Most importantly perhaps is that as people moved from the clarity of a regular 9-5 pattern in the physical workplace into the novel regime of furlough or remote working there was confusion as to what part-time work actually meant. And no surprise really that older workers felt themselves particularly at risk or discriminated against as bosses decided which staff were most valuable when the hatches were battened down. On the bright side maybe it was encouraging that in these unprecedented circumstances the number of claims of race discrimination only increased by 5% – deplorable, certainly, but much less than might have been expected.

Overall in 2020/21 there were over 117,000 employment tribunals which represents an annual percentage increase of over 13% since 2010/11. Unfair dismissal was the most common tribunal cause of 2020/21 with more than 23,000 complaints.

The full details are available at





Pity expat divorcing couples living in Europe caught up in the swirling fog of post-Brexit legal uncertainty! Prior to the start of this year, as between the UK and any other European country, the question of jurisdiction was decided upon the basis of where proceedings were issued first.  Divorce proceedings could only be issued here [in the UK] if one of the parties lived here or they were both domiciled here and most family orders obtained in one European country could be enforced in another.

Now that [the British] have chosen not to be bound by or replicate the EU regulations governing jurisdiction, expat couples, where at least one of them is domiciled here, face the very real prospect of prolonged litigation costing tens of thousands of pounds in both the UK and in the country they are living simply to try to determine where their financial claims should be dealt with. Then, as a result of the EU preventing the UK from joining the Lugano Convention, even once jurisdiction is determined and a court has decided how assets and income should be divided, they face the very unappealing prospect of being unable to directly enforce judgements of a UK court in another European country or vice versa meaning that they may have to bring yet more proceedings .

As there are still over 1 million British expats living in Europe such cases are likely to clog up courts, which are already under extreme pressure, for years to come. This will not only cost the taxpayer dearly but will also cause totally avoidable misery and financial hardship to thousands of families unless we swiftly wake up to the fact that the only workable solution is likely to be to realign ourselves with the EU jurisdiction and enforcement regulations and continue to press our case for joining the Lugano Convention as a matter of urgency.”

Toby Yerburgh is a Partner and Head of Family Law at Collyer Bristow LLP


Continuing our regular series on the history of marriage EMMA NASH examines ‘Colonisation and Clandestine Marriages‘ and their implications for the institution three hundred years ago.  

By the middle of the 18th Century, the great European powers had substantial colonial holdings abroad. These were administered by a relatively small and very homogenous group of people – white males of the ‘right’ political and religious persuasion.

This presented an unusual situation in terms of family relationships with colonial populations consisting of administrator/owners, other colonists, slaves and the indigenous population each with their own family structures, morals and religious rites and rituals. The colonists had cemented their position of power, gained at the point of sword and gun, and sought to impose their own ‘higher’ values on those around them.  However, being far from their Government and Church meant attitudes towards relationships and the formalities of marriage changed or were often overlooked altogether.

Being predominantly men, finding a wife for the colonists was difficult, let alone one who came from the same class and cultural heritage. Formal marriages were therefore rare, and many colonists looked to the indigenous community and slave population to meet their conjugal and domestic needs. This was the exact opposite of what the governing powers of Europe wanted to achieve, particularly those looking to use the power of the Church to realise their aims. Missionaries in Portugal’s Brazilian colonies, seeing the Catholic Church’s position being undermined, petitioned the State to send more marriageable Portuguese women to help redress the balance and improve the morality of the colony.

 Meanwhile in England, the Anglican Church was trying to resolve the issue of ‘clandestine’ marriages, which were undermining their power to inject religion into the lives of the population.  From the Restoration, the strict requirements of canon law, such as the reading of banns and marrying in your parish of residence, had been reinstated. A ‘clandestine’ marriage was one which was valid, because it had been performed by an Anglican Clergymen, but without strict adherence to canon law. It was popular for those who wanted to a quick and quiet union, perhaps in response to pregnancy out of wedlock.  Fleet prison in London was well known for such practices, as interned Clergymen would marry anyone who could pay.  In 1754 the Clandestine Marriage Act came into force which made compliance with canon law a requirement for a marriage to be valid, and thus re-introducing religious control over unions with the power of the state behind it.

 Emma Nash is a partner in the family team at Fletcher Day.


Roberta Downey and Angus Rankin have joined Vinson & Elkins in London as partners in the International Construction Disputes practice which is believed to be among the largest of its kind in the City.

Both lawyers were previously at Hogan Lovells where Downey had extensive experience handling large arbitrations and highly technical disputes across a range of infrastructure industries. Rankin, meanwhile, advised clients in relation to major global disputes in the energy, infrastructure, petrochemical, transportation and industrial sectors.

 “Our London International Construction Disputes team has a reputation worldwide, Roberta and Angus add to what is already a strength of the firm,” said Vinson & Elkins chairman Mark Kelly. “Celebrating 50 years in London, we continue to expand and evolve to offer a full-service team of lawyers working across a range of practices and industries.”


The latest from KIDSLAW:The role of the Supreme Court in our justice system.

In this second episode of the brand new KIDSLAW series, Alma-Constance talks to Supreme Court Justice Lord Stephens about the different layers of our court system in the UK, and the process of appeal. Alma-Constance asks Supreme Court Justice Lord Stephens:

🔹 Why are there 12 judges in the Supreme Court and who decided how many there were going to be?

🔹 How does our court system compare to the court sytem in other countries?

🔹 Is being a judge more difficult than being a lawyer?

🔹 Do all judges have to agree when they are deciding cases?

🔹 Have you ever felt that after making a judgement, you got the decision wrong?

🔹 I know you worked as a judge for international cases involving children. Can you tell us about those cases?

You can listen on all major podcast platforms!

We look forward to publishing again next week so please send your diary news, insights and comment to fennell.edward@yahoo.com

Edward Fennell’s LEGAL DIARY

Diary items, insights and comments from the legal world

Friday 1st October 2021



For how much longer will there be a Law Society for England AND WALES? Combine the Welsh Assembly with the establishment of the Thomas Commission (which set a future vision for justice in Wales) then maybe the long-term direction of travel becomes clear. If the Scots can have their own legal profession than why not the Welsh? Indeed a key Thomas Commission recommendation, a couple of years ago, was for the setting up of a Law Council of Wales to promote the awareness of Welsh law and to ensure proper provision of teaching the law in Welsh.

So this week Mick Antoniw MS, Counsel General and Minister for the Constitution, gave an update on the Welsh Government’s commitment to pursue the case for the devolution of justice and policing to Wales. (There are also proposals for specific Welsh representation on the Supreme Court).

The Covid-effect means that we are now accustomed to seeing the Welsh doing things differently from the other parts of the UK. So maybe the time is ripe for Wales to be a jurisdiction to itself. It might not make much difference to London lawyers. But it could turbo-charge the legal scene in the Welsh capital.

The LegalDiarist

NOTE: The LegalDiarist is currently travelling so this is a ‘pocket edition’ of the Legal Diary. We will return to the normal format in mid-October. Please continue to send your Diary stories, legal insights and comments to fennell.edward@yahoo.com

In this week’s edition


  • Simon & Simon, A Dynamic Duo at Clifford Chance
  • All Things (even Senior Partners) Must Pass
  • Nods to the NEDS
  • ‘Pity the Poor Immigrant’
  • Banned Weddings giving way to Wedding Banns?




Simon & Simon, A Dynamic Duo

It’s a rare thing for a City law firm to see any of its solicitors appointed to the status of Deputy High Court Judge but the ever-innovatory Clifford Chance can boast of having done it not once but, uniquely, twice this week. Moreover – and no doubt of great sociological significance – both of the heroes rejoice in the name of Simon.

Cue trumpets and applause then for Simon Gleeson and Simon Tinkler who will be embarking from tomorrow on their six year terms which will involve sitting for up to thirty days a year.

As well as a great record within the firm Simon Tinkler sits externally on the Solicitors Disciplinary Tribunal. Meanwhile, Simon Gleeson has the exceptional honour of being elected as a Visiting Fellow at All Souls College, Oxford and has written extensively on subjects such as the legal concept of money (now definitely on the LegalDiarist’s bucket reading list).

 “I’m delighted and proud to see two of our UK partners will be sitting as judges in the High Court, at the highest level open to lawyers without previous judicial experience,” said

Michael Bates, the firm’s Regional Managing Partner for the UK. “It is a testament to both the calibre of the individuals, and also our culture of excellence in understanding how developments in law and legal policy really interact with the world of business.”

Should be a fascinating six years ahead.

All Things (even Senior Partners) Must Pass

Through one of those odd coincidences of timing Jonathan Metliss, a lawyer well-known in both legal and political circles in north London, reports to me that he recently came across the grave of  Stanley Berwin in Edgwarebury Cemetery. Berwin was an all-powerful Colossus of the post-war City scene and founder of both Berwin Leyton Paisner (BLP) and S.J.Berwin. However, the grave was neglected and Mr.Metliss is now kindly arranging for it to be cleaned. Meanwhile Neville Eisenberg, a successor of Stanley Berwin’s as boss of BLP for many years before it merged with Bryan Cave to become BCLP, has just announced that he has decided to depart the firm.  Well, we all have our endings and who remembers us thereafter? Or even cleans our graves?

Nods to the NEDS

While reflecting on great names from legal history one is tempted to lapse into Shakespearean mode and ‘Tell sad stories of the death of kings’. But time never stops for billable hours and life very much goes on over at the new corporate operation of Ince & Co. where there has been a very civilised passing of the Chairman’s baton from David Furst to Simon Howard at the firm’s AGM. “Today marks the start of a new era for Ince Group and I am pleased to be appointed as Chairman,” commented Howard who then went on to reference the appointment of two Non-Executive Directors. A new era indeed and un-recognisable to the generation of Stanley Berwin who would probably be turning in his newly spruced–up grave.  NEDs indeed!

‘Pity the Poor Immigrant’

Whether politically, socially or legally, immigration is one of the biggest issues on the public agenda so it’s impressive to see that Fragomen is boldly taking the topic by the scruff of its neck through its new ‘Immigration school’.

Now in its second year the School is aimed at students and senior pupils who might be considering a career in one of the facets of the immigration ‘industry’ (the LegalDiarist’s word).

Topics covered range from how public opinion shapes government policy through human rights, immigration and the economy and the business of immigration law. “Our autumn immigration school is a terrific opportunity for students to hear from a variety of very different senior voices across the immigration landscape and a valuable addition to a CV,” says Nadine Goldfoot, UK Managing Partner at Fragomen which has more than 4,500 immigration professionals and support staff in 50+ offices around the world.

For more see  https://www.fragomen.com/careers/opportunities/fragomens-uk-immigration-school-0

Banned Weddings giving way to Wedding Banns?

Figures released by the ONS recently revealed that divorce rates have increased significantly in England and Wales over the last 50 years while marriage rates have fallen.  And it’s going to get worse according to Charlotte Coyle, a senior associate in the family team at Goodman Derrick LLP. “Many family practitioners are anticipating a further increase in divorces in 2022 with the introduction of the ‘no fault divorce’ in April next year,” says Coyle. “With ‘unreasonable behaviour’ being the most common reason for couples divorcing in 2019 according to ONS, those who have been wanting a divorce but have been waiting for this new legislation to come into practice will now have the opportunity to do so.”

But will the post-Covid wedding rush change everything? And will  the divorce rate  eventually flatten. “As family practitioners, we await with interest,” says Coyle. So do we all, says anyone with a family.



This month, Maria Miller MP has again, in a Private Member’s Bill, raised the issue of using non-disclosure agreements or ‘NDAs’ in the workplace. But is there really a need to ban NDAs in the workplace? asks Simon McMenemy

An NDA can be a clause in a contract of employment which states that the employee will not discuss their company’s business affairs outside of work during or after their employment. But this does not prevent the employee from ‘blowing the whistle’ if there has been wrongdoing or criminal behaviour, as the Public Interest Disclosure Act protects employees from suffering a detriment if they do.

Sometimes NDAs can be standalone agreements, and are often used where an employee works in their employer’s home or has access to their private life and family. These are what most lawyers properly call NDAs and which are signed at the start of employment. There have been high-profile cases involving their breach and enforceability, such as the case with celebrity model Naomi Campbell.

In presenting her Bill, Ms Miller said that NDAs were “completely unregulated”. She went on to describe agreements signed at the end of the employment relationship. However, these are in fact ‘settlement agreements’, an invention of Parliament under the Employment Rights Act 1996 which allow employers and employees to resolve outstanding differences on termination of employment for a payment in addition to notice pay or redundancy pay.

This can normally be paid tax-free and so employees often ask for such an agreement. In return the employer has peace of mind that the employee is not going to sue them after they leave. Moreover, there are safeguards within the legislation to ensure that the employee must take legal advice before they sign such an agreement, usually paid for by the employer.

In the parliamentary debate Ms Miller referred to the #MeToo movement and said under her Bill, “No one, however powerful, could buy an employee’s silence if there were allegations of wrongdoing in the workplace”.

After the Harvey Weinstein allegations emerged – along with reports that employees he had assaulted were paid in return for signing settlement agreements – the Law Society of England and Wales (not Parliament) made clear that settlement agreements should specifically state that they would not prevent employees from legitimately whistleblowing.

So, to many employment lawyers, Ms Miller’s campaign to ‘ban NDAs’ seems confused and unnecessary. This may account for why it is not, at this stage, a Government-backed Bill.

Simon McMenemy is Managing Partner, Ogletree Deakins International LLP


The current draft regulations designed to help members avoid pension scams might well increase the schemes’ running costs suggests Danyal Enver

A consultation process has just ended on possible changes to the draft Disclosure of Information 2021 Regulations. These regulations will require trustees to “nudge” members in the direction of helpful guidance if and when they request to access or transfer their pensions. The intention is that this will reduce members’ risk to pension scammers.

Pension liberation scamming has been growing steadily over the last 15 years and has become a major issue, especially during Covid with many members more eager to make changes to maximise pension returns in the pandemic. It is in the nature of pensions that the amounts of money at risk to these scams, especially nearer to retirement, are significant.

The draft regulations aim to inform better decision-making amongst members by making them take note of guidance provided via Pension Wise (a free government guidance service). Trustees will be required to arrange for members to contact Pension Wise and possibly to embed the Pension Wise appointment process into their scheme platform. Members making changes to their pensions would have to opt out of this prompt.

The consultation responses highlighted concerns over the cost of this administrative burden, as well as inconsistencies between these draft regulations (which will affect trustees of trust-based defined contribution schemes) and the corresponding FCA requirements for contractual arrangements such as group personal pension schemes, both of which will add to that cost.

The consultation responses also noted that the draft regulations might be seeking to engage members at the wrong time. The initiating trigger for the guidance ‘nudge’ is a member requesting to transfer or consolidate their pension, but by this point, the member has decided on the course of action already and may just see the guidance as another hoop to jump through in an already burdensome process.

Despite these concerns this mandatory ‘nudging’ is expected to be implemented at some point over the coming months. Let us hope that it does, indeed, help reduce the ever-growing scam business.

Danyal Enver is an Associate at Arc Pensions Law.


A hearing at Southwark Crown Court aiming to secure resolution to the four-year investigation by the SFO into corruption and money laundering at Petrofac is scheduled to conclude today with sentencing. Here David Stern offers an insight into how this case will impact the future direction which the SFO might take in relation to business crime and what large organisations can learn from this hearing – and any ultimate sentencing.

“This case is a departure from the recent practice of the SFO’s strategy of negotiating deferred prosecution agreements (“DPAs”) with companies avoiding any criminal convictions. Since the scheme was introduced in 2014, DPAs have been considered a welcome development for corporations in that they have enabled both sides to mitigate the risks and expense of lengthy trials whilst ensuring that companies make reparation for criminal behaviour.

 Of course, in this case, the SFO had already secured a conviction against a former senior employee and the offences admitted to are of strict liability without the need to prove that the Company had acted dishonestly.

 The approach taken in this case may represent a reassessment of the suitability of DPAs, particularly in cases where a ‘failure to prevent’ offence provides a clear route to conviction avoiding the problems associated with connecting criminal liability to a company’s ‘directing mind’. Government consultations are ongoing to consider increasing the number of these offences in relation to the failure to prevent economic crime.

 Equally, guidance is clear that DPAs are only ever appropriate in instances where there is significant cooperation from the offending company. In several instances, (including agreements concluded with Airline Services Limited (2020) and Guralp Systems Ltd (2019) and Serco Geografix Ltd (2019)) the companies self-reported to the SFO. The circumstances of the investigation into Petrofac were likely not in the interests of justice for a DPA to be pursued.

 In SFO v Standard Bank, it was stated that financial penalties featured as a term of DPAs must demonstrate broad comparability with a fine following conviction, and indeed in many respects it is unlikely that Petrofac will face more punitive consequences as a result of its conviction as opposed to reaching a DPA. The early guilty plea entered by the Company means it is likely any sentence will be subject to a discount of a third.

 After Petrofac’s announcement their shares jumped more than 22% and this plea agreement represents the end of a long period of uncertainty for the company. Whilst the investigation was ongoing Petrofac would likely have been barred from obtaining government contracts and the resolution of the SFO’s investigation may now facilitate its ability to secure new contracts.”

DAVID STERN is Joint Head of Business Crime at 5 St Andrew’s Hill

LEADING THE LEGAL WAY: Culture, trust and influence

In the latest in our occasional series IAIN BLATHERWICK, former Managing Partner of Browne Jacobson and now a management coach, reflects on the importance of culture to law firms’ survival over the past ‘Covid months’ and the importance of  building on strong foundations.

Much is written about the importance of culture within professional service firms and plenty of those firms write at length and in glowing terms about their culture. Cultures have been seriously tested over the last 18 months, as firms have relied on the loyalty, goodwill, and resilience of their people and the strength of team relationships at a time of more remote and sometimes less visible management and leadership.

Firms have had to place huge amounts of trust in their people, and to a very large extent they have been handsomely rewarded for that trust. A professional services firm cannot operate on trust alone – there is still a need for support, supervision, development and standards to be met – but people like to be part of a business which trusts them, and those benefits should not be lost lightly. It would be very damaging to move from those new levels of trust, admittedly achieved through necessity, back to a position of unnecessary controls and interventions.

The debate around the return to offices is fascinating in this context and as firms grapple with the best approach, it is interesting to ask where the pressure to return comes from. You hope that those people who had the view that you cannot be productively working unless in the office have now been silenced, although recent communications from some firms might suggest not. Clearly there are good reasons to encourage a level of office working – we have already mentioned team spirit and consider new recruits who need to become a part of an organisation and will benefit from close working and the support of people around them. Whichever approach a firm takes, it should be honest about why it has taken that decision, ensuring it doesn’t stem from a lack of trust in its people to deliver the service their clients expect.

A broader aspect of culture derives from the desire to help, whether that is colleagues, clients or the communities in which a business operates. Looking to build on the fact that the vast majority of businesses had successfully and responsibly navigated the challenges of the pandemic, the CBI recently urged us all to ‘Seize the Moment’ and to contribute to ensuring the UK delivers to its full potential. I commented at the time that it feels like we all need to build on this increased trust and create momentum by proving that businesses are genuinely interested in making a broader contribution to society. The majority of people in professional services are in a very privileged position and there is an ever-increasing expectation, not least from our own people, that we should use that position to influence, support and improve the communities around us. As the battle to attract and retain talent intensifies, those businesses who trust their people and who look to play a broader role in their communities will give themselves a competitive advantage.

Iain Blatherwick now runs Space + Time, an executive coaching programme aimed at c-suite level business leaders which offers support in horizon scanning and key decision making.

We hope that you have enjoyed this edition of the LEGAL DIARY and even found it useful. If so please circulate to colleagues. Great to read in a fuel queue!


Edward Fennell’s LEGAL DIARY

Diary items, insights and comments from the legal world

Friday 24th September


Law is the grease that enables the wheels of business to go round and provides the stabilisers which prevents society from falling over. And when crises erupt – such as the current catastrophe facing some parts of the energy industry – lawyers are there to act quickly as go-betweens with government to come up with solutions. Moreover they are increasingly pouring out legal insights and analyses to help citizens understand better what the law says and means. Hence, last year the top US law firms created more than 70,000 blogs, articles and other insights to widen awareness amongst society at large.  You might say that they provide the ‘fifth’ emergency service in keeping society ticking over. So not always the bad guys after all.

The LegalDiarist

NOTE: The LegalDiarist is away and travelling until mid-October meaning that this is a pocket/travel edition of the Legal Diary. We will get back to the normal format when we return to the office.



Pregnancy Loss Recognised at Royds Withy King

Farrer’s makes ESG investment as safe as the Bank of England

Irwin Mitchell’s Autumn of Apprenticeships

– MPR Gets It Together with the Romanians

– Divorce Portal a Success!


LEGAL COMMENT OF THE WEEK on NEW RIGHT TO FLEXIBLE WORKING from Stephensons Solicitors and Langley Solicitors




Pregnancy Loss Recognised at Royds Withy King

This week Royds Withy King joined the small but growing number of law firms with a new Pregnancy Loss Policy which offers compassionate leave to expectant mothers who lose their child before 24 weeks. Under the new scheme employees who suffer pregnancy loss (or their partner) will be entitled to up to two weeks’ paid time off. As the firm points out, “This policy announcement joins a suite of family-friendly policies the firm already has in place that go above and beyond industry standards, including enhanced maternity/paternity leave, adoption leave, leave for fertility treatment and paid care for dependant leave.”

Much was made in the media recently when the sometime-royal Meghan (and, one must say, Harry) suffered a pregnancy loss. But it is a common occurrence with about a quarter of pregnancies ending in a miscarriage. “We felt that it was important to recognise that pregnancy loss, no matter when it happens, can have a big impact on both the expecting parents,” said Jessica Parsons, HR Advisor at the firm, “We have therefore created this policy to support our colleagues and their partners, whether male or female.”

Farrer’s makes ESG investment as safe as the Bank of England

Farrer & Co’s skill set over the last four centuries has been the management of the wealth of the nation. So it is a logical development that the firm should now step in as the sponsor of trade body PIMFA’s new Environmental Social and Governance (ESG) Academy for Wealth Managers which was launched last week.

Of course it was not alone. A couple of other rather expensive names – MSCI and Fidelity International – were also sitting at the PIMFA High Table. But then ESG is the place to be right now with up to a half of the record inflow of £6.2bn into UK based-equity funds in the second quarter of this year being targeted at those focused on ESG factors.

However Farrer’s role will not be just as a passive supporter of the Academy’s CPD-accredited programmes. Partners Grania Baird and Jessica Reed will contribute directly  to the Academy’s online learning provision to give PIMFA wealth managers ‘deeper insights into the diverse and occasionally complicated nature of ESG investing.’

As Grania Baird commented, “We are delighted to be supporting PIMFA’s ESG Academy this year. Our involvement will help PIMFA members to navigate and understand the evolving legal and regulatory requirements in this area equipping them with the tools to engage with their clients on all aspects of ESG consistent with the regulatory requirements.”  

And of course it all makes good business sense. In Europe, sustainable fund assets under management are predicted to account for over 50% of total European fund assets by 2025, driven by rising regulatory focus and increased client demand. So it pays to be ESG-smart.

For more go to https://campaigns.pimfa.uk/sites/learning/esg/esg-academy/

Irwin Mitchell’s Autumn of Apprenticeships

True to form Irwin Mitchell is powering forward with its apprenticeship model which is opening new horizons in the way  people can build their careers in the legal industry.

Twenty four young people are starting Paralegal and Business Administration (Level 3) apprenticeships this Autumn on two year programmes which will be run in the firm’s offices throughout the country from Southampton to Sheffield.

The important point is that this is not just a nod towards diversity and equality but is seen as a key part of the firm’s long term growth strategy. It also embodies the fact that while legal expertise is at the core of what law firms do they must now incorporate a wide range of other skills to deliver what clients require – especially with data and the digital world.

“These developments set the wheels in motion for a significant uptick in our apprenticeship work, and gives people from many backgrounds, both internal and external, a chance to learn new skills and develop their future career path,” said Lorcan Seery, the firm’s Early Years Careers Team and apprentice manager.

“The fact that this is our biggest ever intake is a sign of our renewed focus on our colleagues of the future, across all areas of the firm and geographically across the country. The lockdown naturally made taking on new apprentices a challenge, so we are keen now to make up for lost ground, creating new opportunities and laying the groundwork for the long term success of the business.”

The news on apprentices follows the firm’s announcement of a 93% retention rate of newly qualified solicitors and the adoption of a Flexible by Choice policy, allowing all colleagues to work when and where they want, subject to client requirements.

MPR Gets It Together with the Romanians

With the exodus – post Brexit and post-Covid – of Poles from the UK it is now the Romanians who are, maybe, our most important East European community. With over one million now resident of whom more than 100,000 are registered as active business owners they make up a significant addition to the entrepreneurial class.  Meanwhile Romania itself has been changing fast with the capital Bucharest recently designated as the home of the EU’s newly established Cybersecurity Competence Centre. So unlike Poland and Hungary, the country is not on the EU’s naughty step.

Consequently there is a big and growing market here for lawyers and it is significant that MPR Partners, an award winning Romanian law firm and founding member of the British-Romanian Chamber of Commerce, is now planning for its first ‘Romanian Professionals and Business Owners’ event. It will be held at The Refinery (12 New Square Street), on Thursday, 8 October and will be the first of many, say the organisers.

Divorce Portal a Success!

Rather than crashing and causing added misery to divorcing couples the new mandatory online divorce portal  has been overwhelmingly effective according to Hannah Gumbrill-Ward of Winckworth Sherwood. By comparison with the old paper-based version the rejection rate of initial submissions has dropped from 40% to just 1%. Maybe the wedding vows should be changed to “…until portal do us part.”


New flexible working rights are to be welcomed says Phillip Richardson, partner and head of employment at Stephensons Solicitors but Marie Horner, Employment Lawyer at Langleys Solicitors suggests that they are not so generous as they might seem.


“This announcement by the government will be a welcome one and a timely intervention at a period when home working has become the norm for thousands of people. The past 12-months have underlined how productive workers can be, when given the right support, to work remotely and productively away from the traditional office setting.

“Flexible working requests would often be viewed as a daunting conversation, however this change makes for a much more upfront and transparent relationship between employer and employee.”


 “[In brief] employers can require staff to return to workplaces even where they have been working productively during the pandemic. This is because the place of work in contracts remains as the workplace and working from home has been a temporary solution during the pandemic.

“Staff cannot assume they have a right to work from home even if they have shown that they can be productive. Parties can agree to change the place of work and many employers may face an increase in applications for flexible working on this basis.

“While there is no automatic right to work from home, employment legislation provides a number of protections. Currently, employees with at least 26 weeks’ service have the right to ask for flexible working which can include working from home for some or all of the time.

“Employers are required to consider requests in a reasonable manner and can only refuse a request for one of the eight business reasons permitted by the legislation:

·       The burden of additional costs

·       A detrimental effect on the ability to meet customer demand

·       An inability to reorganise work among other employees

·       An inability to recruit additional employees

·       A detrimental effect on quality

·       A detrimental effect on performance

·       Insufficient work at the times when the employee proposes to work

·       Planned structural changes

“Whilst the Department for Business, Energy and Industrial Strategy has recently announced plans to potentially extend the right to request flexible working, it should be noted that the proposal only removes the 26-week qualifying service period, allowing all employees to make a request from day one.

“It does not confer any greater right on employees to work flexibly, and employers will still have the ability to reject requests in the same way they can presently. This is a step in the right direction but perhaps not the huge stride that it first appears to be.”


Delaying the extradition of entrepreneur Mike Lynch is not all it appears says Thomas Garner, Partner, Fladgate LLP

 “It is highly unlikely that Priti Patel will answer attempts to overrule Mr Lynch’s extradition. The reality is that the Home Secretary’s role in extradition has been greatly constrained since Theresa May blocked Gary McKinnon’s extradition to the US in 2012. Following that case and the Baker Review into our extradition arrangements, the law was amended to remove the Home Secretary’s power to consider human rights grounds which must instead be raised before and decided by the courts. Under the Extradition Act, the Secretary of State can now only consider four specific issues when considering ordering a person’s extradition: whether the individual concerned is at risk of the death penalty, whether there are ‘specialty arrangements’ in place which prevent an individual from facing proceedings for different allegations than those for which extradition was ordered and, finally, very unusual cases where an individual has been previously extradited to the UK from a third country or the International Criminal Court. Without wishing to prejudge matters it seems almost inevitable that Mr Lynch’s case is destined for an appeal in the High Court.”



A wrongful conviction that led to a death row sentence; a politician fighting to save his reputation; a tech company whose trade secrets were stolen. In this podcast series, some of the best trial lawyers in the business share the inside stories of their most high-profile and dramatic cases. What does it take to win in the courtroom and what’s at stake if you don’t? Hogan Lovells’ Proof in Trial podcast series delves into these questions and more.

Hosted by partner Cate Stetson ‘Proof in Trial’ is available via your usual podcast service including Apple, Google and Spotify



Proof in Trial Trailer

Episode 1: ResMan v. Karya and Expedien

Episode 2: The People of the State of New York v. Lazar Feygin et al.

Episode 3: Gilliam and Tarlton v. Robeson County et al.

Episode 4: Federal Trade Commission et al v. Thomas Jefferson University and Albert Einstein Healthcare Network

We hope that you have found interesting and even useful this edition of the LEGAL DIARY. Please continue to send announcements of Diary events, insights and comment to:

fennell.edward @yahoo.com

We will return to our normal format in mid-October

Edward Fennell’s LEGAL DIARY

Friday 10 September 2021 Edition 72

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


IP, IP Orray at Mishcon?

Time to ‘Decolonise’ Africa House? Image courtesy of Looking at London

News that Mishcon de Reya has officially begun the IPO process en route to becoming the UK’s largest listed law firm will have given a fresh nudge to the possible transformation of the London legal scene. It is no coincidence, maybe, that the news arrives in concert with the announcement that the firm is launching a strategic partnership with Harbour, one of the largest dedicated litigation and arbitration funders. This will create a new litigation finance venture called MDR Solutions I to fund litigation and arbitration cases for Mishcon de Reya’s clients using a sophisticated data science capability built by the firm over a number of years.

Without question this is how the most dynamic law firms of the future will function with a combination of financial muscle, leading edge data and IT – plus terrific legal skills. The structures needed to drive such enterprise might well demand listed status. But the experience so far of other firms which have gone down that route has been mixed. Maybe it takes the exceptional talents at Mishcon to get it right (and will that include getting rid of those ‘colonial images’ above their HQ in Africa House?)

The Legal Diarist

PLEASE NOTE: The Legal Diarist is travelling over the next month. There will be no Legal Diary next week but we will resume on Friday 24th

In this week’s edition


– Social Audits Not Up To The Job Legally?

Irwin Mitchell Strengthens its Human Rights Offer

Departure Time for Department Stores

– The HERoes Women Role Model List


LEGALLY LEADING by Iain Blatherwick


+ APPOINTMENTS OF THE WEEK at Fladgate and Excello


Social Audits Not Up To The Job Legally?

A Karachi mother with photographs of the victims of the 2012 fire

Social audit firms are doing a poor job in checking out the credentials and performance of businesses around the world according to a new report from the Business & Human Rights Resource Centre identifies which  makes a strong case for social audits to be rejected as proof of human rights due diligence. 

“The social audit industry has rightly come under increasing scrutiny for its role in sustaining tolerance of abuse in company supply chains,” it claims. “It is time the social audit industry is held to account for false or negligent claims which hide the truth of abuse against workers.”

The report is pegged to the anniversary of the fatal fire at the Ali Enterprises factory in Pakistan (11 September 2012) in 250 workers fied despite the fact that it had been declared a safe working space by a social audit firm only a few weeks before. Horribly they were trapped behind barred windows in a building which had only one useable fire exit.

So what legal redress is there when consultancies have let down so badly both their clients and the affected workers? The Business & Human Rights Resource Centre is now advocating the lodging of legal claims against social audit firms as a way of creating legal accountability for the industry. ‘New laws and regulations must not equate social audits with human rights due diligence, or see them as a plausible substitute’ it argues and, moreover, social auditing firms must be subject to mandatory Human Rights and Environmental Due Diligence (mHREDD) legislation.

“Although there remain significant legal and contractual challenges in holding social audit firms liable, there is growing appetite for reform, including the introduction of mandatory Human Rights and Environmental Due Diligence (mHREDD) legislation which offers an opportunity to address barriers to justice,” said Maysa Zorob, Corporate Legal Accountability Program Manager at Business & Human Rights Resource Centre. “We must ensure social audit firms, as companies, are subject to mHREDD, which would require them, by law, to identify, prevent, mitigate, account for adverse human rights impacts and be held liable for harm. This could provide a new basis for social audit liability, even when existing national law does not.” 

The Business & Human Rights Resource Centre’s Corporate Legal Accountability Portalexplores the legal responsibility of companies for human rights abuses, including through legislation and litigation. This hub provides latest news, analysis, resources, and cases on CLA to help advocates end corporate impunity for human rights abuses.

Irwin Mitchell Strengthens its Human Rights Offer

Irwin Mitchell has boosted the profile of its Public Law and Human Rights Team with the recruitment of new partner Angela Jackman QC (Hon) whom they describe as ‘one of the best known and respected human rights and discrimination case champions’.

Angela Jackman QC

Jackman has already enjoyed a glittering career starting with studying at Balliol College, Oxford followed by legal qualification and then going on to Hackney Community Law Centre. She then joined City Law School in 2015 as senior lecturer/CPD consultant and gained an appointment as a Fellow of the Higher Education Academy. She has also spent time at Simpson Millar. Meanwhile earlier this year she was appointed Honorary QC and named one of City’s ‘Extraordinary Women’, marking International Woman’s Day.

The move to Irwin Mitchell unites her with what she describes as a firm with a ‘reputation for success in strategic cases that have led to important changes in the law’. “I am   thrilled to be taking on this new challenge and ensuring that this vital work continues for the benefit of our clients and the wider community,” she said.

Notable among a number of Jackman’s high profile successes has been the ‘cornrows school exclusion’ judicial review, where the High Court held a school’s policy prohibiting African-Caribbean boys having their hair in cornrows resulted in indirect racial discrimination.

Departure Time for Department Stores

Is this all the future holds? Image courtesy of Derby Telegraph

What should be done when an anchor store like Debenhams shuts its doors for the last time leaving a gaping hole in the High Street? Across the land, from major regional towns to cathedral cities, that has been the ugly picture of the past year. Depending on the resilience of the immediate area it could be either a catastrophe or, in same cases, a blessing in disguise by releasing space for enterprises which, previously, could not get a look in.

That at least is the view of optimistic Simone Protheroe, an associate in the construction team at Clarke Willmott LLP, who thinks that vacant department store properties could be the answer to the growing demand for mixed-use development sites.

“Individual retail chains are unlikely to want such large spaces anymore and department stores are often situated in areas not particularly suited to becoming purely residential units,” she says. “Enter mixed-use developments, the perfect solution to seeing these (often historic) buildings re-occupied.”

Certainly in the town where the LegalDiarist lives is there is already a lively debate as to whether recently vacated large sites should be re-occupied by a relocated street market or the long awaited cultural and historical centre.

But why not mix them all up? The traditional strict demarcation of purpose has had a restraining effect on growth. Simone believes using department stores as mixed-use sites opens up ‘a world of opportunity for innovative solutions’.

And for sure innovative solutions is what we are all looking for right now.

Waiting for a HERoe

The HERoes Women Role Model Lists – which are supported by Yahoo Finance – puts the spotlight on leaders who are championing women in business and driving change for gender diversity in the workplace.

Louise Woods

The individuals featured for 2021 range across HSBC Bank Argentina, National Grid, IBM, Goldman Sachs and other major corporates and Government departments. Also numbered amongst them is a group of of lawyers including Sultana Tafadar (barrister at No 5 Chambers), Chidi Onyeche (an associate at Latham & Watkins), Anne Collins (a senior associate at Clifford Chance), Ligia Lima Godoy (a senior Associate at Mattos Filho, Veiga Filho, Marrey Jr r Quiroga Advogados), Sarah Primrose (an Associate at King & Spalding), Amy Bird (a senior associate at Clifford Chance). Plaxides Makura, (a legal manager at Herbert Smith in South Africa), Louise Woods (a partner at Vinson & Elkins).

Commenting on the recognition Louise Woods said, “The legal sector is making progress in terms of equality but there is still some way to go. I firmly believe that diversity results in better business, and initiatives like HERoes are great tools that can demonstrate best practice, share ideas and instigate change.”

For full details go to  2021 HERoes 100 Women Future Leaders List.


LEGALLY LEADING by Iain Blatherwick

In the first in a new series of articles the former Browne Jacobson Managing Partner turned coach, Iain Blatherwick briefly outlines the pressures and responsibilities that come with leading a successful law firm and highlights the importance of why mental wellbeing should be high on every law firm leader’s personal agenda.

Law firm leaders and leaders in general often feel pressure to have a calm, reassuring, determined presence – regardless of how they may actually feel, meaning they do not take enough time to look out for themselves or ensure they have the right team around them for mutual support.

With the profile and influence to have positive and negative impact on those around them, it is essential that leaders retain the energy and passion needed for the role. No-one wants to see a leader looking ‘frazzled’, a recent high-profile incident springs to mind where the Chair of a well-known UK business had to backtrack on controversial comments he made around the way people in the firm were reacting to the impacts that the Pandemic had bought. These would have been said partly through pressure, frustrations and exhaustion, and no doubt later regretted.

It is important that leaders take time to step back from the day to day demands of their role and achieve a better balance between those tasks which are enjoyable, suit their skill set and give energy and those which drain, but simply have to be done.

Mental wellbeing is undoubtedly high on many businesses’ agenda in 2021 with various mental health initiatives to support their people but what is in place for legal leaders and leaders in general when the going gets tough? Is there still a taboo around leaders taking up on these initiatives themselves? It is progress that we are seeing a shift from the somewhat archaic heroic leader model, where weaknesses should be hidden, to one where leaders can be more open about their own challenges. A CBI report on mental health in business post-Pandemic suggests that if businesses want to encourage an open culture or a safe space for its people to share and seek support then leaders should lead the way in being more transparent about their own struggles.

Sometimes a leader can feel that all the responsibility ultimately rests on their shoulders, but in order for a legal business to thrive, a great leadership team will be in place who are equally passionate about the organisation, will happily share that burden and will be shoulder to shoulder in helping deal with all challenges a business faces. In short, alongside every good leader is a strong leadership team and both need to support each other though the tough times that they are likely to face over the next few years without worrying about who will get the credit. (415)

Iain Blatherwick spent 11 years successfully leading law firm Browne Jacobson during a period of unprecedented growth and key expansion. 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.

Continuing our


by Emma Nash, Partner Fletcher Day

Marriage in the 17th Century – Power & Progeny

As Rembrandt saw it

During the 17th century, marriage was used by the elite families in Europe to strengthen political power, gain territories, seal alliances and produce male heirs. Romantic marriage was left to the poorer classes and in some cases was thought to be counter to marriage with romantic love sometimes being considered a form of insanity.

The political benefits of a union were often prioritised over the physical compatibility of a couple to reproduce. Such unions were prevalent throughout the Royal families of Europe. This meant that the couple were sometimes too young or too old at the tie of marriage to reproduce or too closely related to produce healthy offspring. The Hapsburg dynasty, for example, was ended after Philip IV married his niece, Marianna of Austria, and their son, Charles II (born in 1661), suffered from physical and mental difficulties and produced no children. Marianna was Philip’s second wife, as he had initially married Elizabeth of France when he was only 10 years old and she was 13.

These royal marriages were regulated by a contract which dealt with the payment of a dowry, financial provision during the marriage and in widowhood and consequences if she were ever to re-marry such as relinquishing royal entitlements.

Meanwhile, in China, which was under the Qing dynasty at the time, there was a similar obsession with producing male heirs and regulation of women within the family. Marriages were arranged by the groom’s parents with the focus on finding suitable daughters-in-law rather than a suitable partners for their sons. It was believed that the family line, and the ability to serve and preserve the ancestors, passed through male descendants only. Without a male heir, the ancestral line became extinct. To avoid this there was the option of taking a concubine. This was sometimes with the blessing of, or selected by, the wife. The relationship of both wife and concubine were regulated. While subject to the authority of the husband, a wife had power within the family including over all children regardless of whether they were born to her or a concubine. A concubine could be elevated to wife when the wife died but only if she had produced a male heir. There was also a strict prohibition on a wife re-marrying which extended to concubines and severe punishments if either committed a crime against the family such as adultery.



Kate Troup is joining Fladgate as a Partner within the firm’s Funds, Finance and Regulation (FFR) practice. She was was previously with Charles Russell Speechlys where she worked for over 11 years as a Partner in the firm’s Financial Services team. Prior to that she was at Farrer & Co, where she began her career.

Kate Troup

Troup specialises in the investment management and private banking sectors, advising UK and international firms that wish to provide investment and banking services in the UK market. She has advised private banks on the legal aspects of lending and deposit facilities, as well as the structuring and documentation of bank account services in the UK.

Ella Leonard, Head of FFR at Fladgate, commented, “Kate’s arrival at Fladgate furthers our efforts to build out and cultivate a breadth of carefully shaped services for both business and private clients that have fast-moving, complex challenges, requiring a mix of solutions delivered with genuinely personal service from their lawyers.”


Alexis Colfer has joined Excello Law (winner of the Modern Law Award 2018 for ‘ABS of the Year’ and The Law Society’s Excellence Award 2017 for ‘Excellence in Law Management’) in its southern practice based in Hampshire. Colfer has spent the past five years with Konexo global, the professional resource division of Eversheds-Sutherland LLP and prior to that was in-house with the IT, marketing, e-money, pharmaceutical and manufacturing sectors. 

Alexis Colfer

“I could see how using firms like Excello could mean lower fees for clients, without sacrificing the quality of the advice,” says Colfer. “I’m really pleased to see that Excello Law’s model has proven to be so successful for its lawyers and their clients, and I now look forward to being part of a great team of like-minded lawyers.”

Joanne Losty, director at Excello Law commented, We are committed to significant expansion across the South and we’re seeing great interest from lawyers across all disciplines who are looking for greater freedom to build their practice and support their clients.”


CSFI logo_blue
The City post-Brexit: with Barney Reynolds (Shearman & Sterling), Kirstina Combe (LME) and John Godfrey (Legal & General)CLICK HERE TO WATCHWhy you should watch: Barney Reynolds is one of the most senior financial services lawyers in the City – and a lot more positive on the opportunities that are opened up by Brexit than some of his peers. But he is not starry-eyed. Are we doing as much as we can to exploit the advantages that a common law tradition ought to give us? Are we imposing too many layers of regulation where fewer are needed? His prescription: ‘Fewer rules; better drafting’. He is also concerned that we may be trying to shoehorn too much into regulation – especially issues (like diversity and inclusion) that might be better left to the law. Other thoughts on GDPR, on data more generally, and on the positive messages of the Hill Report. Moderator: Andrew Hilton (Director, CSFI) 

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There is an exciting opportunity for in-house lawyers to take Net Zero leadership in their organisations
Businesses and public bodies are facing increasing pressure to align with Environmental, Social and Governance (ESG) criteria, and individuals want to align their work with their values. 
In-house counsel are ideally placed to help deliver meaningful climate action as internal advocates for robust application of ESG principles – often being seen as trusted advisers and the corporate conscience. 
As the UN’s Race to Zero  speeds up, governments and policy makers are increasingly using legislation, taxation incentives and public procurement to signal that climate considerations are now good business practice. Investors and corporate customers are also making increasing ESG demands.  Furthermore there is increasing public concern at the accelerating pace of the climate crisis. 
Within this context in-house lawyers are taking leadership with their organisations to accelerate the transition. 

Please join us for an interactive webinar, with
Adam WoodhallChief Executive, Lawyers for Net Zero,
Will MorrisChief Counsel of Rolls Royce, Civil Aerospace and Charlotte Phillips, Legal Advisor, Kingfisher Group.
Date:  Tuesday 12 October 2021 Time: 1100-1200 (BST) including bonus Q&A 1200-1215.
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 
ACCEPT Decline invitation

Find out how in-house lawyers are:Championing legitimate Net Zero;Supporting their organisation to guard against greenwashing; andDelivering climate action, including work on contracts and supply chains. Discussing their experience will be the Lawyers for Net Zero champions: Will Morris, Chief Counsel of Rolls Royce, Civil Aerospace Charlotte Phillips, Legal Advisor, Kingfisher Group.Case studies, top tips, good practice and key learnings will be shared by the panellists.You’ll also learn how Lawyers for Net Zero help in-house counsel deliver on this agenda.After the main session finishes, there will be an additional bonus 15 minute Q&A session with the panel.
The Centre for Legal Leadership
Tower Bridge House, St Katherine’s Way, London, E1W 1AA
T: 020 3060 6000 F: 020 3060 7000 DX 600 London/City Please let us know if you have any health, disability or mobility requirements and we’ll be pleased to help.

We hope that you enjoyed this edition of the LEGAL DIARY – and maybe even found it useful. If so please relay on to colleagues.

PLEASE NOTE There will be NO Legal Diary next week while the LegalDiarist is travelling and only a slimmed down travel version until October 15th. But please continue sending your Diary stories to


Edward Fennell’s LEGAL DIARY

Friday 3 September 2021 Edition 71

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



Make your own interpretation
Image courtesy of Maguire Family Law

Two news stories yesterday – one from a local newspaper, the other from The Times – illustrates the high price that is being paid for family law,

In the first instance an army reservist was convicted and sent to jail for four years for couriering £100K+ worth of drugs. Until fairly recently he had lived an unblemished life with a good career in catering. Unfortunately his marriage break-up led to a dispute over access to his two sons. His legal bills topped £84,000 and he was financially ruined. It was at that point he turned to crime – and then the ruin of his whole life.

The other story is even more poignant. The context was the same – a man pursuing legal action to gain access to his children. When the fees became impossible he tried to steal a catalytic converter from a BMW. He bungled the job and was crushed to death under the car. (You probably read about it).

Surely it should not be beyond the wit of lawyers and the State to come up with a better way of dealing with the repercussions of family break-ups?

The LegalDiarist

In this Week’s Edition


– Bigging it Up (with the Big 4 accountants)

– Tour de Law gets back on the saddle

– Gresham College Spotlights Medical Law

– Our Man in Kabul at RIAA Barker Gillette



+ E-VENTS with Brown Rudnick and Travers Smith


Bigging it Up

Look out on Monday for the publication of Are the Big Four reshaping the future of legal services?’, a report from LexisNexis Legal & Professional®. This argues that the Big 4 accountancy firms are not so much nibbling at the feet of the Magic Circle et al but are instead ‘setting on an altogether different strategy and benefiting from the changing way legal services are delivered through ALSPs.’

According to this analysis the accountants have veered away from their original strategy of trying to rival the established big names but, instead, are ‘bringing disruption to all areas of the legal market by offering clients a higher integration of technology, project management and process management than traditional firms may be able to offer’.

So these accountancy/lawyer hybrids, it is suggested, are less interested in building share of big, high-profile legal work.  “Instead, they are seeking to become the engine room of professional services.” At the heart of this is the harnessing of technology, project management and process management – in other words the kind of things skills that have always been seen to belong more to accountants than lawyers. “By utilising cutting-edge technologies, such as artificial intelligence and machine learning, the Big 4 can automate the routine, low value, high volume legal tasks – winning business that is often unwanted….The Big 4 are cornering the market of solutions, rather than advice.”

Put baldly, that sounds like vacuuming up vast amounts of commodity work while leaving the bespoke mandates to the poshos over at Slaughter and May. Nonetheless, it will have a big impact on reshaping the legal sector in London. Someone out there is going to suffer – but if you don’t move with the times then maybe you deserve it.

Tour de Law gets back on the saddle

Our Summer of Sport may now be almost over but a season of activity-based fund-raising is about to begin with the announcement that this year’s Breast Cancer Now’s annual charity cycle race, Tour de Law will be on the road from Monday, 11 to Sunday, 17 October 2021.

And, of course, that is not just ‘on the road’.Barristers’ chambers and law firms can enter an unlimited number of teams (each consisting of up to 10 riders) and the mode of transport can include static bikes at home or in the gym as well as being on the public highway. (Breast Cancer Now can arrange for static bikes to be made available in the office, for those who wish).

Following a record-breaking event in 2020 which saw more firms participate and more donations than ever before Tour de Law will continue with a virtual format. Participants track their distance through Strava, which will be linked to their team’s JustGiving page and automatically update both the distance and fundraising.

“The pandemic has presented a real challenge for charities – so please join me in doing what you can to raise money and awareness,” says Toria Kendrick, a partner at Eversheds Sutherland who has personal experience of breast cancer. “Tour de Law is a great way to bring the office together and raise money for such an important charity.”

Sign up now to join many hundreds of others working in the legal sector in raising vital funds for breast cancer by visiting tourdelaw.breastcancernow.org and keep up to date using the #TourDeLaw hashtag.

Gresham College Spotlights Medical Law

Medical law – what a minefield! From the basics of medical negligence to the profundities of medical ethics we are bombarded constantly by sad and troubling stories of individual pain. And when children are involved – which they increasingly seem to be – its even more complicated.

So the announcement by Gresham College (London’s oldest higher education institution) that it has appointed Imogen Goold as Visiting Professor of Medical Law for 2021-22 promises much of interest. Goold will be giving a series of three free public lectures on issues of great topicality – children and consent to medical treatment, body part ownership and freezing eggs.  

Imogen Goold

Goold is Associate Professor of the Faculty of Law at Oxford and her doctoral research explored the use of property law to regulate human body parts. Her current focus is the legal regulation of decisions regarding children and she is currently working on a book on the law and ethics of decisions about children’s medical care (with Cressida Auckland of the LSE).

“I am a strong believer in Gresham’s mission to bring academic work to the wider community,” she says. “I’ve undertaken public engagement work on abortion law and women’s stories, on human enhancement, and on body part ownership and I believe public engagement and outreach from the academic sphere to the wider public is hugely important.”

The series of lectures starts on 25th October. For more go to https://www.gresham.ac.uk/series/medical-law/

Our Man in Kabul

I was intrigued to see the announcement this week of a merger between London firms RIAA Barker Gillette and Tibber Marks Solicitors. To the LegalDiarist’s shame these are not firms about which much was known in the Legal Diary’s office – a sharp reminder that beneath the top level of big name, big ticket outfits with worldwide client bases there is a mesh of other very good firms but who go about their work in a quieter (but maybe more satisfying) way.

The interesting thing about these two outfits, though, is that they are by no means just limited to London or even the UK. Instead their mission is largely about serving the needs of ‘high-net-worth individuals and entrepreneurial and ambitious businesses’ worldwide.

A long way from Cavendish Square

Further research revealed that RIAA Barker Gillette was not just part of a pan-Atlantic network but that it even had – or did have – an office in Kabul! Certainly it was still there on its website yesterday afternoon. “Mazhar Bangash heads our Kabul office, which services international clients operating in Afghanistan…” it announced. “Mazhar has made significant contributions towards Afghanistan jurisdiction where he advises multinational companies and NGO’s on their corporate matters in the country, including registrations/incorporations; government approvals; licensing; good governance and compliance with regulatory requirements.”

Looks like he will have his hands full over the next few weeks.


The Age Appropriate Design Codekicked in this week. Organisations have had 12 months to implement the necessary changes to ensure that anyof their online services which may be accessed by children in the UK take into account the best interests of the child. BRIDGET TREACYanalyses where we now stand.

“The 12-month transition period to allow organisations to prepare for the Children’s Code (or Age Appropriate Design Code, to give it its formal name) expires this week. From now on the Information Commissioner’s Office (ICO) expect that organisations which provide online services likely to be accessed by children – including apps, games, and social media services – should comply with the Children’s Code.

The Children’s Code seeks to guide organisations in their design of online services so that the ‘best interests’ of children are protected. This covers a number of concepts, including the child’s right to privacy, their right to information and play and their right to freedom from economic exploitation. The Code sets out 15 technology-neutral design principles and practical privacy features that online services are expected to comply with.

“The ICO has indicated that it will monitor compliance with the Children’s Code through proactive audits but, as in other areas of data protection, it is likely that privacy activists will also monitor organisations’ compliance and bring any apparent shortcomings to the attention of the ICO. The ICO’s enforcement powers include the power to issue warnings, reprimands, ‘stop now’ orders and fines of up to £17.5 million or 4% of annual worldwide turnover for breaches of the UK GDPR.

The ICO has highlighted concerns that children’s data is being used to target children with personalised content and features, including adverts, messages and friend requests, some of which may be inappropriate. In addition, the ICO has drawn attention to ‘nudge’ techniques and other methods that organisations use to prompt children to remain online and provide additional personal data.

A range of potential harms to children have been highlighted by the ICO – not just risks of physical or emotional abuse or financial harm, but also psychological harms that may be suffered by children as a result of these nudge techniques, which exploit psychologicalbiases to encourage certain behaviour.

 “Tech and gaming organisations in other jurisdictions, such as the US, are now being encouraged by legislators to adopt voluntarily the standards set out in the UK Code, signalling a global shift in the standards of data protection expected of providers online services offered to children. As part of its work on the use of children’s data, the ICO is also considering the thorny issue of age verification, something that has proven challenging for organisations to implement in a practical way. The ICO intends to set out a formal position on age assurance in the autumn.”

Bridget Treacy, leads the UK privacy and cybersecurity practice at Hunton Andrews Kurth



Genevieve Poirier is joining international disputes firm LALIVE (London) LLP as a partner based in its London office. Poirier is an arbitration specialist and was previously with Skadden Arps Slate Meagher & Flom. Her recruitment is the latest step in LALIVE’s commitment to the strategically important London market, following its launch in the UK in 2018.

Genevieve Poirier

Poirier’s experience covers a broad range of commercial matters, including cross-border disputes in the telecommunications, oil and gas, insurance, shipping and financial services sectors, as well as shareholder disputes. With dual Irish and Canadian citizenship she initially trained in New Zealand, and is now a Solicitor Advocate with rights of audience before the English High Court.

“We are absolutely delighted that Genevieve has chosen to join LALIVE,” said Domitille Baizeau, LALIVE Geneva partner and chair of the firm’s Management Board. “Her disputes focus, international experience and English law expertise fit perfectly with our own practice and plan to continue growing in London as a strategic market. This is an exciting development for the firm.”


Brown Rudnick’s Women in Business Series
In Conversation with Shelley Lawson
Brown Rudnick is proud to announce the next in our series of events celebrating inspirational and thought-provoking speakers, who will share their professional experiences and achievements. At our next Women in Business event, we will be joined by Shelley Lawson, Co-Founder of award winning children’s bike brand Frog Bikes, who will speak about their growth story, the challenges of manufacturing in a pandemic, and Frog’s ambitions to decarbonise.Please note this event will take place online only. As we move later in the year, we hope to host our Women in Business series in person at our Mayfair offices, while maintaining the option to join remotely for those who feel more comfortable doing so. Date: 8 September 2021
Time: 17:30 – 18:30 UK
Location: This event will take place online
RSVP Add to calendar Join the event here
International employment law podcast series

Episode 1: Hiring in Ireland
Welcome to the second in our series of podcasts focusing on international employment law.In these three episodes we will be speaking to Head of Employment, Duncan Inverarity at A&L Goodbody.We will be discussing key employment law issues and things to think about when employing staff in Ireland, considering the start of employment, the end of employment and other key aspects of Irish employment law.Listen to episode 1

We hope that you’ve found this edition of the LEGAL DIARY interesting – and even useful.

We will be back next Friday but travelling the week after (which means no edition on Friday 17th) so do continue to send yout Diary news, insights and comment to



Edward Fennell’s LEGAL DIARY

Friday 27 August 2021 Edition 70

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


Agility? I’ll think about it – Image by Matthew Henry

In an article in this week’s Business Leader magazine Gill White, a Partner at Howard Kennedy comments, “The pandemic underlined how important it was for businesses to continue to have nimble reactions and an innovative mindset.” The quality which she went on to highlight most was ‘Agility’. It’s a brilliant attribute right now because it implies that businesses – including, of course law firms- must be constantly and remorselessly re-organising and re-shaping themselves, twisting and turning in response to quickly changing circumstances – whether that be Covid, WFA, equalities and, above all, client requirements.

Typical of this (as reported below) is the new office deal that Travers Smith has secured in Stonecutters Court. The agreement for nine floors of the new building can be varied up or downwards because, frankly, who can predict what might be happening in 2025 when the move takes place.

The consequence must, inevitably, that horizons get shorter and shorter. So for example, it could be unwise to read too much in the decision by Reed Smith to cut 66 legal secretary roles in the firm. The call is right for now but does not necessarily have long-term implications. By 2025 those legal secretaries might be back in favour and the firms scrabbling around to recruit. But agile employers need an agile workforce. Fixing that could be the biggest challenge of all.

The LegalDiarist



– African Paralympians On The Telly Thanks to Hogan Lovells

– Brain Injury – How Lawyers Can Help 

– Sorry kids, it’s all gone, says 007

– Snow Dissolves but Stone Cuts It for Travers Cmith




+ E-VENTS with Gatehouse Chambers


– African Paralympians On The Telly Thanks to Hogan Lovells

As the Paralympics gets into its stride over the next couple of weeks Hogan Lovells has made its particular contribution to the success of the Games by supporting the ‘Para Sport Against Stigma’ project and the International Paralympic Committee (IPC)’s free-to-air broadcast of the Games across Sub-Saharan Africa.

If the Paralympics are going to be successful in their aim of normalising high level sports participation for those with disabilities then its reach has to be truly global. We have already seen this year the enormous impact that Africa-based sportspeople made at the Olympics but there remains a problem on the continent when it comes to stigma and discrimination against people with disabilities.

Thanks to Hogan Lovells’ backing and pro bono activity African viewers are now able to watch for the first time the live broadcasts of the opening and closing ceremonies plus daily 52-minute highlights packages of African-centred content in English, French, and Portuguese. The project also sits alongside the IPC’s “I’mPossible” campaign to work with National Paralympic Committees of Ghana, Malawi, and Zambia to deliver education programmes to assist the countries in meeting their commitments under the Convention of the Rights of the Disabled.

“The broadcast initiative of the Para Sport Against Stigma project provides leadership to address the inequalities faced by people with disabilities,” said Yasmin Waljee the firm’s International Pro Bono Partner. “Our support for inclusion and social change across Africa is an example of our strong commitment to diversity and inclusion and responsible business.”

Brain Injury – How Lawyers Can Help

‘Heads, You Lose!’ Image Irish Times

With increasing accounts of footballers and rugby players who are suffering the longterm effects of heading and scrummaging there is increasing awareness of the problems that arise from brain injury. Now the Brain Injury Group – a network of specialist lawyers providing support to brain injured people and their families – has been joined by Clarke Willmott LLP another high profile firm specialising in this work.

Gaining accreditation as a BIG member involves a robust application process and demonstrating a high level of expertise and experience in brain injury litigation. “It’s great to have this accreditation and to work with like-minded organisations across a range of professions who are experienced in dealing with acquired brain injuries to secure the best results for our clients,” said Chris Thorne, the firm’s head of personal injury and medical negligence.

Astonishingly, as many as one million people attend hospital each year suffering from some form of head trauma or brain injury. A significant number will then suffer on-going symptoms ranging from mild, short-term difficulty with memory, through to severe lifelong cognitive disability. Clarke Willmott’s team of brain injury solicitors specialise in dealing with these issues which arise including bringing claims for brain injury compensation and advising on issues relating to capacity, financial affairs and care. With its new accreditation Clarke Willmott can now provide a complete package of support to those affected.

Sorry kids, it’s all gone – I’m down to my last cufflinks

No Secret! He’s only going to give it all away

It is not clear whether the daughters of actor Daniel Craig (aka, James Bond) have the licence to kill him given his £100M+ wealth but there’s no point in doing so following his high-minded announcement that they cannot expect anything from his will. Indeed he has said that inheritance is ‘quite distasteful’.

Mind you, he has a point. There is a long and sad list of heirs to great fortune who have been ruined by being everything on a plate – everything, that is, except good judgement and a wise steer on life. A bottomless pit of money is less than it might seem.

As Ann Stanyer, a Partner at Wedlake Bell, observes, “Great wealth comes with great responsibility. Clearly ensuring your family has a good start in life is one thing but to hand over millions when they are young and able to earn for themselves can be destructive. To be remembered as a great philanthropist and to be thought well off after your death is far and away a better course to take.”

Stanyer goes on to say that many people in Daniel Craig’s position would set up a foundation to ensure that their wealth provides a lasting legacy for good causes rather than a harmful cash legacy for their children. “Involving their adult children in the foundation’s vision would ensure continuity with the parent’s goals and allow the parent’s vision to last for future generations and not just the present one.”

As Shakespeare did not quite say, some are born wealthy some achieve wealth, and some have wealth denied them by po-faced parents.

Snow Dissolves but Stone Cuts It for Travers

It’s all transparent at Stonecutter Court

Travers Smith has announced plans to move from its long-standing perch on Snow Hill to somewhere more central at Stonecutter Court, EC4 close to the Goldman Sachs building, the Deloitte campus and with better access to the courts (a move which will be appreciated by the Disputes team). It will be a sad moment nonetheless for those of us who visited Snow Hill often (as the LegalDiarist did at one time) and enjoyed the sense of being just round the corner from Covent Garden and only a stone’s throw from the site of the historic Snow Hill police station first established in 1840.

But times move on and the thriving Travers team will be moving into a new landmark 13-storey building of which the firm will take nine floors and 158,000 square feet of ‘high-quality and flexible office space’

‘Flexible’ is, obviously, the operative word these days along with ‘modern facilities for cyclists and runners’. They will also be able to add or subtract one floor as they choose. Managing Partner Edmund Reed was absolutely upbeat about the decision. “The move to Stonecutter Court shows our confidence in the future ,” he said. “[It’s an] opportunity to build on our success and allow for growth in the coming years.”

The move will take place in 2025. By then we might have a better sense of what shape the legal industry will be in for the long term.


In the wake of the UK government’s announcements concerning global data plans, the nomination of the Information Commissioner and launch of an International Data Transfers Expert Council there has been plenty of comment – most of it supportive – from lawyers.

The UK is taking the lead

The UK is starting to show that there is room for diversion from EU data protection law whilst still retaining the GDPR as a framework. What this means in practice is that the way in which international data flows are approached is not identical to the way the same data flows are treated in the EU, but this doesn’t necessarily mean that the protection is going away. It does not mean doing away with the GDPR framework but adapting it to make it as progressive and effective as possible.

For example, the notice and consent model is not suited to regulating cookies and other sophisticated technological ways to gather data about our electronic interactions. The UK knows that and the EU knows that. It seems that the UK is taking the lead in finding an alternative more effective way to protect online privacy while allowing us to use the Internet without so much friction.  That is not an easy task and will require a regulatory policy that is technology-friendly but robust in enforcing data protection by design and by default.”

Eduardo Ustaran, Co-Head of the global Privacy and Cybersecurity practice at Hogan Lovells

Thumbs up

The UK plans do not necessarily mean divergence from GDPR. It is possible to improve the data privacy regime and how it works in practice without lowering the level of protection for individuals. This is a positive development and should be encouraged in the UK and in the EU, too.

 UK ambitious international data flows and adequacy plans are the right thing to do. The government recognises the importance of data flows for economy, people and society at large and wants to enable trusted and responsible data flows. Just because the UK government may be more agile, flexible, risk-based and outcomes-driven in how they determine adequacy does not mean this will result in lower level of protection for people and their data. In fact, likely the opposite is the case. Looking at a whole picture of how privacy protections work in practice in third countries may be better for individuals then a theoretical line by line comparison of legal texts. We should not be judgemental of countries doing things their own way as long as they achieve the same outcomes.

 Businesses in all sectors will welcome a more seamless regime for data transfers and adequacy decisions in respect of more countries. Data privacy officers are spending too much time and precious resources on dealing with legalities of data flows from the EU, especially in the aftermath of Schrems judgement, instead of doing more pressing work on privacy by design, risk impact assessments and building long term privacy culture and programmes for the new digital economy. I hope the UK example will inspire the EU and other countries to follow suit.

 Delighted to see the news of the new UK ICO. This will be a critically important role for the UK in the next 5 years and John Edwards is well placed to lead the new chapter for the ICO. Thumbs up for choosing a candidate with privacy, data policy and international expertise!”

 Bojana Bellamy, president of the Centre for Information Policy Leadership (CIPL) – a think tank based in Washington, DC, Brussels and London founded by international law firm Hunton Andrews Kurth 


Following the updating of its guaranteed minimum pension (GMP) equalisation guidance (to account for the Lloyds 2020 judgment) the Pensions Administration Standards Association (PASA) has set out the role of transferring schemes and receiving plans in individual transfers. Here Max Ballad considers whether we now have a realistic solution to the GMP equalisation question.

Max Ballad

Pension scheme trustees are still dealing with the ramifications of a judgment in 1990 (Barber v Guardian Royal Exchange) that occupational pensions must be equal for men and women. Many schemes which were contracted out of the State pension scheme provide members and their spouses with Guaranteed Minimum Pensions which are defined by statute to be different for men and women. Until recently, most schemes have ducked the GMP equalisation problem due to its complexity and uncertainty as to what needed to be done. Recent judgments in relation to the Lloyds Bank pension schemes have confirmed however that trustees must equalise benefits to remove the discriminatory effects of GMPs.

That is a big problem for trustees because they not only need to equalise current benefits, they also need to look at all the transfer values they have paid for members over the last 30 years and see if they need to make any top-up payments. The recent Lloyds judgment confirmed that there is no statutory limitation period for members’ claims to top-ups from assets held by the trustees.

Fortunately, some help is at hand in guidance which has been issued by the Pensions Administration Standards Association which does a good job of explaining the mess schemes find themselves in and how trustees may discharge their obligations in a pragmatic way.

It isn’t going to be easy and in some cases the administration costs might exceed the amounts involved. Trustees may look to forfeiture provisions in their scheme rules but in most cases these are unlikely to apply. The practical problems are likely to be considerable: data on past transfers may be missing or incomplete, former members will need to be traced and the trustees will need to find a way to discharge their liabilities, hopefully without incurring too many costs.

Max Ballad is Legal Director, Arc Pensions Law


Kay Chand has joined Browne Jacobson as a technology projects partner as part of a further expansion of the firm’s TMT practice.Chand was formerly at DAC Beachcroft and has more than15 years’ experience of advising on complex/critical change and business transformation programmes including digital transformation projects. She has worked with a range of clients in the financial services and central government sectors, working alongside decision makers to provide commercially pragmatic advice.

Kay Chand

“Kay is a highly regarded commercial and innovative technology expert who I am delighted to welcome to the thirteen partner strong team,” said Declan Cushley, partner and head of the firm’s TMT Group. “Her specialist expertise in handling high profile complex IT projects together with her wealth of experience of working with a number of our key sectors are a great fit for the firm and our wider commercial practice.”


Gatehouse Chambers Brew

Till death us do part? The problem of predatory marriages

11:00 AM – 11:30 AM | Wednesday, 15th September 2021

We are delighted to announce the date for our Private Client Team’s next Gatehouse Chambers #Brew on Wednesday 15th September 2021 at 11am.

Edward RowntreeCharlotte John and Oliver Hyams will look at predatory marriages as a species of inheritance fraud.

Predatory marriages are back in the news as a result of a campaign to change the law with the aim of giving greater protection to vulnerable people against exploitation through marriage as a means of securing an inheritance.

The brew will discuss:The test for capacity to marry;The legal consequences of a marriage where a party lacks consent, including the impact of marriage on inheritance rights;What can be done to prevent a predatory marriage or to remedy the situation in life and what, if anything, can be done following the death of the vulnerable person;The merits of the proposed changes to the law.
We will circulate the joining instructions in due course.

If you have any questions or wish to register please e-mail events@gatehouselaw.co.uk.

We hope that you have found this edition of the LEGAL DIARY interesting – if so, please relay on to colleagues.

And for next week please send any Diary-type stories, insights or comments to


Meanwhile have a great Bank Holiday Weekend 



Edward Fennell’s LEGAL DIARY

Friday 20 August 2021 Edition 69

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


– Afghan Legitimacy?

Meet the Jury Image courtesy of Council on Foreign Relations

The current horrific chaos in Afghanistan is not likely to last long. Before we know it – maybe even right now – sharia will be shaping life on the streets and , presumably, in business too. Those who believe in a rules-based system will have a new model to follow.

Already though, on the international front, attention is being paid to the $10 bn. of Afghan government central reserves held (predominantly) in US banks and which the Taliban regime will, no doubt, soon demand be repaid. This raises the murky question of the point at which the theocratic rulers gain international recognition. The British government has insisted that it ‘recognises countries not governments’ and as Anne Schuit (author of Recognition of Governments in International Law) points out, ‘The meaning of recognition of governments varies in time and between individual States.’

The long-running case in London featuring the Venezuelan gold held by the Bank of England (which is being denied to the Maduro government on grounds of its illegitimacy) is a case in point. When the Taliban start hiring London lawyers to argue for their rights under international law a signifiant milestone will have been reached. Whether or not that will be a hopeful sign is a matter of debate.

The LegalDiarist

In this week’s edition


– Screening Justice: is this remotely possible? (Berkeley Research Group)

– Ample opportunity for expansion of litigation funding (Ampla Finance)

– Doubling Up for the Law Society Excellence Awards (Bushra Ali)

– Industry focus for new trainee scheme at BCLP

– To the Manor Born? (BDB Pitmans)



Screening Justice: is this remotely possible?

Multi-screen verdict

Without remote hearings the justice system would have ground to a halt over the past year or so. So was that a win for the technology?

The jury, so to speak, is still out. Supporters of screen-based justice argue that it has massive benefits in terms of saving time and expense while also enabling the legal process to continue. But no-one is suggesting that it can fully replicate the face-to-face exchanges. And, moreover, according to a new report by consulting firm Berkeley Research Group, remote hearings often had an unseen psychological impact.

The research, which consulted with expert witnesses, lawyers and psychologists from around the world, focused on the psychological impact of conducting proceedings remotely and the extent to which these had affected the outcome of hearings and tribunals.

“Expert witnesses responded positively to the additional virtual barrier and familiar surroundings during cross-examination as traditional techniques deployed by lawyers proved less effective,” commented the researchers. “However, some found themselves resorting to imagining the traditional physical environment to prepare mentally for each question and maintain focus and avoid being lulled into a false sense of security.”

Also the actual technological experience seemed to weigh on some people. These included the subliminal processes that can kick in and sway decision-making, such as associating the frustration of technical issues with those providing evidence or spending more of an arbitrator’s mental capacity on managing an unnatural situation, rather than carefully considering all aspects of the evidence provided. “It was noted that decisions were being reached considerably more quickly compared to in-person hearings.” Interestingly one commentator even suggested withdrawing video from the equation altogether, thereby allowing decisions to be made, “Based purely on speech and lessening the potential impact of unconscious bias.” Mind you, that would still leave evidence to be shaped by accent, tone of speech and fluency. No system it seems is likely to be perfect.

A copy of the full report can be found here.

Ample opportunity for expansion of litigation funding

Richard Kinnerley

Further evidence of the development of third party litigation funding comes with the appointment of Richard Kennerley as the new CEO of Ampla Finance.

The company is going thorough a period of particular growth right now maybe reflecting the growing crisis in marriages under the shadow of Covid. As the company explains, there is strong demand for its matrimonial and estate loan products, which offer individuals quick access to flexible finance to cover divorce proceedings and loans to estate beneficiaries and executors.

“I am delighted to have been appointed CEO of [Ampla Finance] at this crucial time in its evolution,” says Kennerley who has had extensive experience in the Australian market. “ In addition to developing our family and legacy products we are also excited about expanding into new markets and product offerings. One of the main attractions that drew me to Ampla is its overarching commitment to putting the customer at the heart of everything it does, which has established the business as one of the pioneers of the legal finance market in the process.”

Ampla is probably best known for its digital Hub which keeps clients and solicitors up-to-date with the loan status at all times, allowing approval in up to two days and funds to be drawn with quick client approval.

Doubling Up for the Law Society Excellence Awards

Getting on to the shortlist for one of the Law Society’s individual Excellence awards is a cause of satisfaction. Getting on to two shortlists is almost a matter of celebration in its own right regardless of the outcome. So that’s the position of Bushra Ali, Founder and Director of Bushra Ali Solicitors who is up for both the ‘Sole Practitioner of the Year’ and ‘Woman Solicitor of the Year’ categories at the awards event which takes place (virtually) in early October. Commenting on the news Ali said, “To be a finalist in both the Sole Practitioner of the Year category and the Woman Solicitor of the Year category is absolutely unbelievable and I am deeply honoured for the nomination and for the finalist place.”

Law firms have had a very mixed experience during the Covid crisis with some of the larger firms reporting especially good results. But many smaller firms have faced enormous problems.

“The entries we’ve received during a very challenging time for solicitors are a testament to the outstanding work accomplished across the legal profession,” said a spokesperson for the Law Society.  “Congratulations to all the firms, teams and individuals who have been shortlisted.”

Detailed criteria are set for all awards. For the Woman Solicitor of the Year award they include specifically ‘opening doors historically closed to women and inspiring and influencing others to pursue a career in law’. This could include initiatives such as setting up networks to support women in the profession; championing sponsorship, mentoring and other programmes promoting progression of women in their careers; and volunteering for charities and other community groups for the benefit of wider society. “I’d very much like to extend my congratulations to all my fellow finalists and wish them all good luck!  Let’s take this as an opportunity to celebrate together!” said Ali.

Industry focus for new trainee scheme at BCLP

A clear industry-specific focus is at the heart of two new trainee lawyer programmes from Bryan Cave Leighton Paisner LLP (BCLP) with applications open from next month.

The Real Estate Sector route will include a core real estate seat alongside a range of complementary seats such as planning and zoning, commercial construction, tax, investment management, real estate disputes and real estate finance.

Meanwhile the Financial Services route will have Finance Transactions Practice as a compulsory seat, with a choice of complementary seats: corporate transactions including energy, environment and infrastructure; financial services disputes & investigations; tax; technology, commercial and government affairs; and real estate finance.

In both cases there will also be the opportunity to complete an international or client secondment related to the sector.

“We remain committed to offering tailored and different career paths for emerging talent and these new sector-specific opportunities will strengthen our talent attraction for aspiring lawyers who have a clear sector interest. Many trainees won’t know which practice they want to pursue on joining BCLP, but we also understand that for some future trainees, they already have a clear practice or sector in mind,” said Senior Graduate Recruitment & Development Manager Chloe Muir.

There will also be an Innovation seat within the mix designed to increase collaboration between the practice groups and the firm’s Innovation Team.

The firm is also doubling from two to four the number of places on its legal placement programme next year which enables students join the firm for a 12-month period. Formerly exclusively with Queen Mary University of London it will now be open to all penultimate year LLB undergraduate students at institutions which permit a placement year. “Due to the success of the placements with QMUL and the high calibre of talent, we are keen to expand the programme to further diversify our intake and look forward to working with other universities on this programme,” said Grace Ambrose the Senior Graduate Recruitment & Development Advisor.

To the Manor Born?

Hugh Lumby, the high-powered former Head of Global Real Estate practice at Ashurst LLPUK is joining BDB Pitmans, as a consultant to the firm’s Real Estate practice in Southampton. In what is quite a coup for the south coast’s legal community Lumby brings with him twenty-five years high level experience including helping to deliver the infrastructure for the London Olympics and the acquisition and development of office buildings in the City of London.

Hugh Lumby

The appointment is of particular interest to the Legal Diary since, as it happens, Hugh Lumby is also now a leading politician on Winchester City Council, the home district of the Legal Diarist. We will refrain here from entertaining readers of the Legal Diary with the details of parish pump politics of central Hampshire other then mentioning that Lumby’s current role is as the shadow portfolio holder for the local economy. Given that Winchester has just been rated the most expensive area to live in the UK maybe his greatest challenge is how to counter the trend of generously-paid London lawyers coming down the M3 and inflating house prices for everyone else.

House prices in Winchester are now so high that even King Alfred is out on the street


James Gong now nesting at Two Birds

James Gong, a technology, media and telecommunications specialist, has joined Bird & Bird as a Corporate partner in Beijing. Gong was previously at Herbert Smith Freehills, where he was Of Counsel.

Bird & Bird commented that his appointment was an important part of building a market-leading Corporate practice with M&A and big data capabilities in the TMT sector across the Asia-Pacific region. He will also be working closely with the international Data Protection group, focusing on providing compliance services for international network clients ahead of the enactment of the new Chinese cyber and data protection laws.

James’s region-specific expertise and impressive experience in Tech & Comms regulation and compliance will service the needs of our international clients in mainland China and help us develop our Chinese tech and comms client base,” says Ted Chwu, co-head of the international Tech & Comms team and head of China at Bird & Bird.

Hope that you have found this edition of the LEGAL DIARY interesting (and even useful). If so please relay on to colleagues.

Meanwhile, we are aiming to be back next week so please continue sending Legal Diary-style stories, insights and comment to



The answer to your Summer reading dilemma



IN US: https://www.superbookdeals.com/cgi-bin/cart.cgi?item=43102405&bisac=

E-Book https://www.kobo.com/gb/en/search?query=Charter+for+Murder+by+Edward+Fennell

Edward Fennell’s LEGAL DIARY

Friday 13 August 2021 Edition 69

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


“I won it playing tiddly-winks” Image Courtesy Houston DCA

Google ‘AML’ and you will be offered two options – Anti Money Laundering for lawyers but the alternative, if you are medically-minded, is Acute Myeloid Leukaemia (AML), a particularly aggressive form of cancer.

But maybe money laundering IS the cancer of our business system – after all, the drug business, fraud, corruption and modern slavery are all facilitated through it. Yet according to a recent survey of over 300 UK law sector compliance professionals, conducted by Accuity, a LexisNexis® Risk Solutions company, in association with the Law Society,Fee earners remain unsold on the value of AML compliance.’ The problems cited by the reluctant partners focus particularly on the time taken to collate relevant information and the level and quality of data available on clients.

Understandably, the grind of checking out the reliability of clients and the source of their income is an undesirable chore for law firms. Whether they like it or not, however, lawyers represent the best front line in the fight against modern criminals. They control the vital portal into the mainstream. It may be tedious but it also represents good citizenship.

The LegalDiarist

In this week’s edition

+ SHORT THOUGHT on money-laundering with Accuity


– Pioneering a fertility policy (at Phillips Solicitors)

Just managing (at Linklaters)?

Hold Up in the Fast Lane to Whiplash Reforms (says Call Brian)-

– Legal Realities Post-Pandemic (according to Bolt Burdon Kemp)

+ A LEGAL HISTORY OF MARRIAGE: ALL CHANGE IN THE 16th CENTURY – The second in Emma Nash’s series

+ APPOINTMENT OF THE WEEK with Addleshaw Goddard



– Pioneering a fertility policy (at Phillips Solicitors)

Finding a Way

A new frontier has been opened in the field of staff welfare by Basingstoke-based law firm Phillips which has just announced what it describes as a ‘pioneering policy to support employees who are struggling to conceive’.

Under the new scheme the firm will provide financial and emotional backing at what is often an emotionally-charged time for those struggling to conceive. This includes five additional days of leave for hospital visits and for post treatment recovery and an interest-free loan of up to £5,000 to cover the costs of fertility treatment. (Recent NHS estimates put the cost of one single cycle of treatment at £5,000. However the estimated success rate of the treatment amongst women aged 38 to 39 stands at at 15%.)

Jack Gardener leading Phillips

In announcing the move Jack Gardener, the Director of the firm and himself a recent father said, “I have witnessed the emotional and financial stress that can impact couples trying to conceive. At Phillips, we strive to support staff well-being beyond the workplace and through some of life’s major milestones.”

The new policy is designed not just to raise awareness but also to recognises the importance of being able to take time away from the office, to recuperate and gives what can be a stressful process the highest chance of success possible.

“It is baffling that many large businesses support employees to purchase annual travel tickets, bicycles or cars but may not have considered helping their employees through significant periods in their lives,” said Gardener who was formerly with White & Case before returning to his home region. “I hope we will set an example for the law industry and beyond to think innovatively about the range of support they can provide their staff beyond the workplace.”

Phillips has over 70 staff and incorporates Brain Chase Coles. The fertility policy comes in the wake of significant enhancements to maternity, miscarriage and menopause policies.


– Just managing (at Linklaters)?

Back in the day there used to be a hackneyed saying around IT procurement managers that ‘Nobody ever got fired for buying IBM’. As a highly regarded global business with an enviable list of clients ‘Big Blue’ had reached the tipping point of market popularity. It was Number One and it was almost unassailable.

So time moves on but maybe the same blessed state has descended on iManage. After all, the announcement this week that Linklaters has joined the other members of the City’s Magic Circle firms in adopting iManage Work in the Cloud for its secure document and email management and collaboration does rather look like ‘game, set and match’ to the product.

So it’s out with the old and in with the new. As the supplier observes, “iManage Work 10 will replace Linklaters’ existing document management and email filing systems to deliver a single, unified platform to its 6,500 global professionals.”

Of course, what is striking is that major law firms are no longer passive customers in this transaction having nurtured their own in-house IT expertise. In Linklaters’ case they have developed innovative AI solutions powered by iManage’s advanced AI engine to automate laborious tasks, The result is that taks which used to take days now take just minutes. Hence Linklaters MFNiQ, system is able to accelerate legal data comparisons in fundraising deals. No doubt iManage will be overtaken or eclipsed in its turn. But for the time being it’s managing very nicely thank you.

– Hold Up in the Fast Lane to Whiplash Reforms (says Call Brian)

The bureaucracy is even worse then the pain

Having followed the Whiplash reforms with interest, with frustration and then with exasperation for many years the LegalDiarist could not quite believe it would all be over when the Government’s new Official Injury Claim portal opened. Surely such a saga could not conclude on such a tranquil ending?

The LegalDiarist was right. According to a leading accident management expert, the new portal has added a significant level of complexity to accident claims for young people. Indeed, less than three months after its introduction on 31st of May, Call Brian, an automated accident management company, has called into question the UK Government’s whole new ‘Whiplash Reform Programme’. In particular Call Brian highlights the lengthy admin involved with the new process, as well as the detailed knowledge required to assess the complexity and duration of any medical injuries incurred. “Young drivers are particularly vulnerable in this market,” said Russell Atkinson, Chairman of the Call Brian Group.

“Buying your first car, the insurance associated with it – it’s a big investment. But what we are really pinpointing here, in terms of the new injury claims process, is the cost of complexity.

“It’s completely impossible for drivers to understand the full cost of whiplash for example – it could have you off work or university for a days, months or even a year. Without first going to a medical professional or having that sound advice, you are completely in the dark.”

Applicants using the system must not only negotiate the complex online system they will also have to follow 64-page guide to the law. The result, says Russell, is that drivers could be receiving lower compensation claim payouts than they deserve.

“The Government introduced this new process to weed out the fraudsters looking for an easy payday, and rightly so, but I would argue that this has now come at the cost of genuine claimants.

“If a motorist has incorrectly assessed the extent of his or her injuries, which is highly likely given the lack of assistance or clarity given with the new portal, then they could be done out of thousands of pounds.”

A tricky one this. But then if the law was simple who would need lawyers?

– Legal Realities Post-Pandemic (according to Bolt Burdon Kemp)

 New research by specialist lawyers Bolt Burdon Kemp (BBK) suggests that while the legal aid system has been heavily stressed for years the pandemic has made things significantly worse.

It is worth remembering that seventy years ago, amidst the flurry of post-WW2 reforms, 80% of British people had access to free or affordable legal help. “But by 2007, this had reduced to only 27%, and in 2013, austerity measures  [ including the Legal Aid, Sentencing and Punishment of Offenders Act ] cut this even further,” points out BBK.

 Now seven out of ten of legal aid clients are from BAME backgrounds and “They’ll be the worst affected if legal aid cuts continue. “

Maybe in the light of this it is not surprising that almost half the population does not understand the legal aid system or how it works. And neither is it a surprise that the regions in England with the highest legal aid expenditure are also the most deprived. So Legal Aid – will you be out on the streets clapping for it? (Or just praying that you never need it.)

P.S. And just a reminder, for civil cases, legal aid can be used to meet the costs of legal advice for serious issues, such as: 

  • losing a home 
  • domestic violence 
  • discrimination 
  • asylum or immigration 
  • welfare benefits 
  • inquests 
  • But in order to qualify claimants must show evidence that they’re unable to meet the costs of legal help, which means: 
  • Having less than £8,000 in capital assets 
  • Earning less than £2,657 per month 
  • Having less than £733 in disposable income 

For more go to https://www.boltburdonkemp.co.uk/campaigns/inequality-in-britains-legal-aid-funding-system/


Henry VIII – Also a great divorce reformer?

In the second in her series about the evolving legal history of marriage EMMA NASH examines the contrast between pre- to post-Reformation attitudes

In the 4th century AD, Emperor Constantine adopted Christianity as the state religion in Rome and, over the next 1200 years, Catholicism became the dominant spiritual authority in Western Europe. The key feature for defining and regulating personal relationships was sex, or a lack thereof. Celibacy and virginity outside of marriage were extolled and sex was only permitted within marriage for the purpose of reproduction. Marriage itself was intrinsically linked to God and divorce was only available in extremely limited circumstances and only with the permission of the Church.

By the early 1500s, the Catholic Church led by the Pope in Rome wielded a huge amount of power over states, sovereigns and citizens alike. The Protestant Reformation, which started in 1517, presented an alternative doctrine for living a Christian life and weakened the power and control of Rome within Europe.

To protestants, marriage was not a divine union but an earthly one which should be subject to the law of the state. Divorce was more readily available including the freedom to re-marry thereafter. Henry VIII, having initially been rewarded by the Pope for his condemnation of Protestantism, famously broke from the Catholic Church and established the Church of England so that he could divorce Catherine of Aragon and re-marry Anne Boleyn in the hope of achieving a male heir.

The Catholic Church responded to the Reformation by holding the Council of Trent which sat from 1545 to 1563 and issued decrees reaffirming the Church’s authority and condemning protestant practices. In November 1563, the Council decreed that the Catholic Church had exclusive jurisdiction over marriage and secured that control by stating that, for a marriage to be valid, it had to take place before a priest and two witnesses.

The connection between marriage and God was reaffirmed with marriage being declared a sacrament and so indissoluble, effectively outlawing divorce for a Catholic couple. From the latter half of the 16th century onwards in Europe, who and how you could marry, divorce or re-marry became dependent largely on whether you lived under a Catholic or Protestant monarch.

Emma Nash is a partner with Fletcher Day


Carl Posern is joining Addleshaw Goddard as a partner in its structured finance practice which has had a very busy year working on a very broad range of transactions. Having had almost fourteen years’ experience in both London and Frankfurt Carl is also German-qualified, enabling him to work alongside AG’s Germany team.

Carl Posern

Amanda Gray, divisional managing partner for finance and projects at the firm, said: “We are very excited about how our highly respected City finance practice is evolving. The development of our structured finance team is just one aspect of that. We’ve recently made a number of high-profile hires which enhance our ability to deliver for clients. We are delighted to welcome Carl to this busy and fast growing team.”

E-VENTS with Kids Law and BDB Pitmans


Have a listen to Kids Law’s BRAND NEW episode:

Listen here via our brand new website

Series 1 Episode 10: Does Parliament take the voices of children into account when it makes new laws?

In our tenth and final episode of Series 1, Alma-Constance talks to Darren Jones, the MP for Bristol North West, about his job as a Member of Parliament (MP) in the UK. Darren made the transition from being a lawyer working in telecommunications, to becoming a politician, and we wanted to find out more!

Alma-Constance asks Darren:
🔹What does an MP do?
🔹How do MPs make laws?
🔹What is the difference between being a lawyer and being a politician?
🔹How did you get elected
🔹Why are MPs allowed to shout at each other in the House of Commons?
🔹Are children’s voices heard when laws are made?
🔹Should the voting age in the UK be lowered?
 About our guest:
Darren Jones is the current MP for Bristol North West, the area where he grew up. He is the first and only MP for Bristol North West to be born in the area, and is also the Chair of the Business, Energy and Industrial Strategy Select Committee. Darren became a solicitor in 2013, specialising in technology law, before being elected as a Labour MP in 2017, becoming the first Darren ever to be elected to Parliament!


Following the launch of our HR Pathfinder webinar last month – where we discussed the challenges and opportunities for employers provided by the new world beyond COVID-19 – what are the practical HR issues that organisations need to consider as employees start to return to their workplaces in larger numbers?

We would be delighted if you could join us for our Employment Webinar where will be looking at the essential points in this area including: 
How will working patterns need to adapt to the “new normal”?
What are the new discrimination risks from hybrid working?
Can you justify compulsory vaccinations for staff?
What steps can you take if staff don’t want to return to work?
What will the end of furlough mean for employers?

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

Funny old Summer, isn’t it? But we’ll be back next week so please send your DIARY style news to


Enjoy the weekend.


Your holiday reading – a medieval mystery featuring a lawyer, a knight, a Wife of Bath and a prioress, all pilgrims on their way to Canterbury in time of revolt.

It all ends in the Temple

Medieval lawyers – what did they know?

For more go to

IN UK: https://www.bookdepository.com/CHARTER-FOR-MURDER-Edward-

Fennell/9781919616117IN US: https://www.superbookdeals.com/cgi-bin/cart.cgi?item=43102405&bisac=

E-Book https://www.kobo.com/gb/en/search?query=Charter+for+Murder+by+Edward+Fennell

Edward Fennell’s LEGAL DIARY

Friday 6 August 2021 Edition 68

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


Yes, but what’s lurking behind the rainbow?

Beautiful dream – time to wake up?

No doubt all of us clapped for the NHS. But however wonderful individual medics (of all kinds) might be there is a danger that the NHS gets away from real scrutiny by virtue of its quasi-sacred status.

Sadly one of the most egregious examples of this is the case of Ian Paterson who performed countless unnecessary operations over many years. Acting for many of Paterson’s victims is Pryers Solicitors which points out that between 2000 and 2010, a number of patients and colleagues raised concerns about Paterson’s practice but it wasn’t until 2011 that he was suspended from operating. A subsequent Government report acknowledged, “It is not simply a story about a rogue surgeon… it is far worse. It is the story of a healthcare system which proved itself dysfunctional at almost every level when it came to keeping patients safe, and where those who were the victims of Paterson’s malpractice were let down time and time again”.

Tamlin Bolton, a Senior Solicitor at Pryers who is representing some of Paterson’s victims, observes, “It’s abhorrent how Ian Paterson abused a position of trust to assault innocent and unknowing victims. The fact that more patients continue to be added to his list of victims a decade after he was suspended, is both shocking and appalling.”

So just how much blind trust should we give the NHS? That might be one of the questions that surfaces in the course of the Covid inquiry.

The LegalDiarist



Legaltech Platform to Pay Out for Small Businesses?

China Counterfeit Crisis

Remote Control of law firm management

Letting Go of London (Try Reading instead)

+ APPOINTMENTS OF THE WEEK by Eversheds Sutherland and Hunters


Legaltech Platform to Pay Out for Small Businesses?

Somehow the sums don’t add up

In a move whoch will be warmly welcomed by small businesses around the country legal technology is being applied to that problem that bugs them the most – late payments.

Today LawtechUK (a collaborative coalition involving the Ministry of Justice) has published a feasibility study and proof of concept for a new technological approach to the frustration of late payments via an ‘SME online dispute resolution’ platform.

Devised through a partnership between legal, technology and alternative dispute resolution experts from the University of Oxford, Oxford Computing Consultants, Resolve Disputes Online and Jur, it is hoped that the new platform could empower UK businesses to resolve +200,000 disputes over a five-year period, accounting for £3.4bn in debt value. Moreover, it could cut the time taken to resolve disputes to between six and eight weeks.  

The work is supported by the well-know academic and consultant Richard Susskind, a LawtechUK Panel member whose 2019 book Online Courts and the Future of Justice (OUP) is, by chance, also published today in paperback [https://lnkd.in/dy-eEWht].

 “This study offers a roadmap for the future of legal dispute resolution – an inexpensive, straightforward, online alternative to a traditional hearing but connected to the courts in case a formal judicial determination is needed,” says Susskind. “The proposed system offers SMEs an easier and more affordable solution to sorting out their late payment problems. The result – greatly increased access to justice for small businesses.” 

Despite the involvement of the Ministry of Justice in LawTechUK it is stressed that the study is independent of Government and does not represent Government policy. Nonetheless the study anticipates that a first release of the online platform could be brought to market within nine months. It recommends a private and public sector co-funding structure, setting out how the platform could become financially self-sustaining within four years.

For the full report go to:


China Counterfeit Crisis

Rouse, the Far East experts all matters related to IP, is blunt in the latest edition of its excellent INSIGHT e-magazine about the role of China in the counterfeit market.

“CHINA CONTINUES TO BE THE GLOBAL SOURCE OF COUNTERFEIT GOODS EXPORTED WORLD-WIDE AND TO SE ASIA,” it proclaims but then goes on to say that China’s role in counterfeit trade cannot be overseen.

Staggeringly counterfeit goods from China are estimated to make up approximately 12.5 % of China’s total exports and over 1.5 % of its GDP. “Several comparative analyses rank the region as the primary source of global counterfeit goods (up to 75% of all counterfeits).  Data also suggests that the size of the trade of counterfeit goods from China into SE Asia is approximately USD35 billion. The volume poses significant harm to developing economies within South East Asia where local businesses and investors suffer heavy losses due to such activities.”

That pretty well sums up the ambivalence the West must feel towards this business behemoth. It does not play by the rules but it is too big to shun. Tough one.

Remote Control

If the past eighteen months has been a period ‘flying by the seat of the pants’ then – in the aftermath of Covid – managing how teams of lawyers work effectively together into the foreseeable future is going to require a new skill set. That’s why recent research from consultancy Ezra, which provides digital coaching, is particularly interesting. What it shows is that communication skills and emotional intelligence are going to be the most sought-after skills in the post-pandemic workplace.

“Communication is the ability to talk, listen and share information effectively, while emotional intelligence is the ability to read between the lines and understand a deeper, unspoken need or expectation,” said Nick Goldberg,Founder of Ezra. “Both are going to be incredibly important as we return to the workplace after such a disruptive year and with the threat of COVID-19 remaining.”

Of course these have always been important but they are going to be more important than ever before in situations where lawyers might not be directly seeing and meeting each other for days on end (and for many months into the future). So no surprise then that communication ranked as the top area of improvement for businesses across the UK, USA, and China. Meanwhile on a national level, emotional intelligence ranks as the most important factor in a number of countries from France to Cambodia.

What was surprising amongst the findings, however, was that decision making came at the bottom of the list of skills required. Just 3.8% of global businesses consider it to be the most important outcome of coaching in the current climate. But then maybe after so much recent turbulence perhaps businesses which have survived are feeling pretty confident about their decision-making skills. Let’s hope so.

Letting Go of London

So can this really be Reading? You’re kidding me!

With fewer people coming to work daily in the City and West End it may well be that some of the towns within commuting distance might see a surge in business for local law firm offices – especially if they are part of London networks.

A good example is Reading which not only has highly regarded local firms such as Clarkslegal but also offices of outfits like BDB Pitmans which operates across London and the South-East from Cambridge to Southampton.

In fact business is thriving in Reading and the firm has just announced a raft of new appointments so that it will be up to 80 lawyers serving clients in the Thames Valley and beyond. Strong local relationships are vital and the firm boasts an extended partnership with Reading FC Women’s team which sees them as the back of shirt sponsor for the next three seasons. 

Meanwhile not too far away in Winchester are Capsticks (five offices outside London) and DAC Beachcroft (ten offices outside London) plus several other big legal names in the southern counties. Watch out for increasing traffic in these locations as lawyers opt to go local.


KYLE B. WEIDIE has joined Eversheds Sutherland as the firm’s Global Head of Digital Marketing in the firm’s New York office. He joins from Kobre & Kim, LLP where he was Global Head of Analytics & Digital Marketing. Prior to that, he spent 14 years in the Marketing & Business Development Department of Crowell & Moring LLP.

Kyle Weidie

In a joint statement Erin Meszaros, Chief Client Service Officer (US), and Judith Green, Chief Communications & Executive Projects Officer (International), said, “We are excited that Kyle has joined us as his deep understanding and background in digital marketing will help drive our ‘digital first’ approach. Communicating effectively in a digital world is crucial to our global firm’s high client service standards. Kyle will focus on coalescing our global digital presence into a unified platform.”

REBEKAH FRENCH is joining Hunters as an International Development Consultant. It is an interesting development for someone who was formerly with the Royal Air Force, seeing active service in Iraq and Afghanistan deploying among other places to Helmand Province with Royal Marines Commando.

Rebekah French

Having left the armed forces, Rebekah moved into the private security sector where she has worked closely with Government Agencies, International Charities, International Aid Agencies and International Development Corporations. She has spent a large portion of her career on project deployments in Eastern Africa and the Middle East and as such has a keen cultural awareness and understanding of the regions.


NO E-VENTS this week, dear reader, everyone’s on staycation.

It may be August but the Legal Diary continues until a short break in the early Autumn. So if you still have any ‘Diary-type’ news or insights, comments or analysis do contact us at


Meanwhile, enjoy the rain!


Your holiday reading – a medieval mystery featuring a lawyer, a knight, a Wife of Bath and a prioress, all pilgrims on their way to Canterbury in time of revolt.

It all ends in the Temple

For more go to

IN UK: https://www.bookdepository.com/CHARTER-FOR-MURDER-Edward-

Fennell/9781919616117IN US: https://www.superbookdeals.com/cgi-bin/cart.cgi?item=43102405&bisac=

E-Book https://www.kobo.com/gb/en/search?query=Charter+for+Murder+by+Edward+Fennell