Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
6 June 2025 81st Anniversary D-Day
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK: True or false?
Image courtesy of Dame Vera’s Official website
With a new and more canny Chair (albeit interim) in the shape of Dame Vera Baird now overseeing the Criminal Cases Review Commission we can expect a move to tighten standards of performance. But it is not just cases such as that of Andy Malkinson (falsely convicted of rape) which has attracted concern. This week has seen the publication of research by the University of Glasgow and Loughborough University, on the role of digital communications evidence in CCRC applications involving rape and sexual offences.
Central to this research are issues around victim credibility checks and victim notification. This is clearly a highly sensitive area but is a reminder to the outside world of how hideously complex much of this work is.
Getting to the truth should be the basis of justice. But sometimes it asks the difficult question of ‘Whose truth?’
The Legal Diarist
For more see The Digital Communications as Evidence in Sexual Offence Applications to the Criminal Cases Review Commission report by Michele Burman, Olivia Smith, Oona Brooks-Hay and Yassin Brunger, commissioned by the CCRC and available to read on the Scottish Centre for Crime and Justice Research website.
In this edition
+ LEGAL DIARY OF THE WEEK
Waste of Time, Going to Court
Read All About It
Apple of Whose Eye?
Discrimination still Trumps Equality in the Law?
+ LEGAL COMMENT OF THE WEEK
on policing ‘finfluencers’, the IFS report on the courts, CJC Review of the PACCAR case, the burned Quran case, mortgage coercion, the ORR report on train fare prosecutions and pensions reform
+ APPOINTMENTS OF THE WEEK
at Brown Rudnick and 4PB
LEGAL DIARY OF THE WEEK
Waste of time, going to court
Yesterday the Conservative Party hovered on saying ‘Sorry’ for the calamitous Liz Truss episode in government. And whilst that was devastating for some individuals it lasted (significantly) less than two months. But when is someone going to say ‘Mea Culpa’ for the on-going catastrophe in the court system?
This week we have had the extraordinary spectacle of Lord Hodge, deputy president of the Supreme Court, telling a House of Lords committee that ongoing problems are undermining the UK’s image as a strong rule-of-law nation. What with others pointing out that freedom of speech is also under threat (from heavy fisted, ‘one set of hand-cuffs fits all’ policing) one might wonder whether the very foundations of constitutional rights in this country are starting to rock.
Added to that Lord Reed, the Supreme Court President, himself highlighted that the high cost of legal proceedings—particularly in family law—can make access to justice unaffordable for many. Surely this could be interpreted as an abnegation of Magna Carta (‘justice shall not be sold’ etc).
First hand examples of this dilapidation came from Katie McCann, managing partner of Lowry Legal who said this week, “I have never seen delays like this in my 20 plus years of practice. I am issuing financial remedy applications and getting dates for first appointments six months on.” Meanwhile Nick Gova, a family lawyer with Spector Constant & Williams added, “The family court delays are now bordering on the ridiculous, leaving thousands of families in a prolonged state of uncertainty, which increases costs and causes huge amounts of emotional distress.”
One of the key indicators of the failure in a system is when people stop using it. Hence McCann is saying that she now recommends non court dispute resolution to every client that comes through her doors. “We are particular fans of the private Financial Dispute Resolution (PFDR) process. We call this the Bupa of the legal world; we are taking things out of the court system as it is so inefficient. Clients choose their own ‘judge’ who is usually a senior barrister and their own location and have the PFDR on their own terms.”
There you are, D-I-Y justice. It looks like the future.
Read All About It
Very much newsworthy is the move by Irwin Mitchell into one of the sacred places of British Journalism, the Northcliffe Building originally built for Associated Newspapers in the 1920s.
There is obviously a moral here. A century ago even the largest law firms were minute in size by comparison with what they are today. Print journalism on the other hand was massive. Now, you might say, the positions have been reversed.
Anyway, all credit to Irwin Mitchell to mark its thirty years in the capital with this major move. Once regarded as very much a ‘northern’ firm it is now truly a national firm with recent new office openings in Liverpool, Cardiff, Brighton and Nottingham. Meanwhile the London operation – which started out with a mere three partners – now employs 60 partners and 125 senior associates and is serving an international market.
“The Northcliffe building has great character and history, excellent modern facilities and is in a prime location in the heart of legal London which is ideal for both our clients and colleagues,” said Deborah Casale, Irwin Mitchell’s Regional Lead Partner for London. “We’re confident that this move will support our commitment to providing our clients with exceptional legal services and further bolster our presence in the city.
The new office has been designed so as to meet the need for hybrid working with features such as a gym, meeting spaces, social spaces, a rooftop terrace, a multi-faith room and an impressive glass atrium. The seminar and events space can accommodate up to 120 people. Added to which it also has has braille signage. Is this a first?
Apple of Whose Eye?
As previously reported, the long running drama of Which? versus Apple is now definitely trundling into action since it has just been confirmed that the campaigning organisation’s ‘Collective Proceedings Order’ application against Apple will be heard in the Competition Appeal Tribunal over a period of up to three days, starting 19 November.
Which? is seeking damages on behalf of all UK consumers that used iCloud from 1 October 2015 – estimating the total number of people affected could number 41 million. Depending on the outcome individual consumers could be awarded an average of £70 each – or almost £3 billion collectively.
“UK consumers are one step closer to getting their day in court, with the vital next step in Which?’s case against Apple – the certification hearing – set for November this year,” said Anabel Hoult, Which? Chief Executive. “Which? wants to make clear that no company can rip off UK consumers without facing serious repercussions. Taking this legal action means we can help consumers to get the redress that they are owed, deter other companies from using similarly underhand tactics and drive a more competitive market with positive outcomes for consumers.”
At the heart of the matter is Which?’s belief that Apple has abused its position, stifling competition and ripping off millions of consumers in the process. Which? asserts that this has led to consumers being overcharged each year through their monthly iCloud subscription fees.
So, as Which? puts it, this Autumn hearing should mark, “A significant milestone in the battle for more choice in the consumer cloud market – and is an essential step in allowing the consumer champion to progress its claims against the tech giant.”
Well worth Witching how it now develops.
Discrimination still Trumps Equality in the Law?
Demands this week for a ‘moment of reckoning’ about misogyny in the legal profession in the aftermath of the Navjot Sidhu case (relating to the former chair of the Criminal Bar Association) coincide with new research from the Next 100 Years project which has found that 88% of women in law believe sex discrimination is still prevalent in the profession.
Overall, it must be said, the findings from the survey make disappointing reading.
While just over half (51%) of those surveyed said their organisation took alleged incidents of sex discrimination seriously, one in five said they did not, and 70% said that they or one of their colleagues had not complained about discrimination for fear it would impact on their careers.
Added to that when asked where sex discrimination came from within the workplace, 47% thought sex discrimination in the workplace came from people across the board with only one third believing it was limited to a few individuals who were ‘outliers’. (Although the question arises as to whether women v. women discrimination is also a problem. Indeed while organisations’ Leadership teams were considered a source of discrimination by a third of respondents only 14% thought this behaviour was prevalent in younger male colleagues.)
“It is alarming to see so many women working in the legal profession are still exposed to discriminatory behaviour and that in many cases it appears to come from across the organisation, not just a few rogue individuals,” said Dana Denis-Smith, founder of the Next 100 Years. “Whilst it is good to see a majority of organisations taking this issue seriously, if women still feel speaking up could impact their career prospects, or suspect their organisation’s leadership to be complicit, we are a long way from seeing the change we need to help women thrive.”
LEGAL COMMENT OF THE WEEK
TOPIC: Moves by regulators internationally to protect social media users from rogue promotions by financial influencers, or “finfluencers”
COMMENT BY: Terry Green, Social Media partner, Katten Muchin Rosenman LLP (Katten)
“Whilst there has been a lot of coverage on protecting people from harmful behaviours and illegal materials online, the Online Safety Act’s wide remit also mandates the protection of people from fraud and financial offences. This includes rogue financial promotions especially in social media and messaging services.
Online platforms will be expected to assess the risk of people being defrauded or being taken advantaged of by people carrying out regulated activities when they have not been authorised by the FCA, such as providing financial advice or conducting financial promotions. The Online Safety Act specifically highlights this as one of the 17 types of illegal content and online platforms must conduct a risk assessment on in relation to the likelihood and harm of this occurring on their platform. They must also outline and put in place ways in which these risks and harms are mitigated. These risk assessments should have been in place from March 2025 and measures are expected to be in place from September 2025.
Whilst the FCA has targeted specific social media users, Ofcom will go after the social media and online platforms that are enabling this. We may expect to see more cooperation between the FCA and Ofcom to tackle these types of content online.”
TOPIC: The report from the Institute for Fiscal Studies which has found that while Crown Court productivity had recovered to post-pandemic levels by the end of last year, the record high backlog continues to rise.
COMMENT BY: Barbara Mills KC, Bar Council Chair
“The report’s findings reinforce the perilous state of the criminal justice system. If we are to end this crisis and grapple with the unacceptably high backlog, the government needs to provide the resources that are urgently needed to help the system function. The current system is letting victims, witnesses, defendants, professionals and the public down.
“The report also demonstrates that to increase the disposals (completed cases) to begin to tackle the growing backlog, the cap on sitting days must be lifted again to allow judges to sit at their maximum capacity and make sure court rooms don’t sit empty. We hope the spending review next week recognises that funding for justice should be in line with the demands of it – we need immediate, targeted and sustained investment.”
TOPIC: The conviction for ‘religiously aggravated intentional harassment, alarm, or distress’ of the man who burned a Quran outside the Turkish Embassy in London
COMMENT BY: A Humanists UK spokesperson
“We unequivocally condemn acts of religious hatred and harassment. Many of the defendant’s views, revealed in the course of the trial, are bigoted, and all decent people would be repelled by them. Nevertheless, given that the defendant did not express anything publicly that was prejudicial against Muslims, the judgment does raise concerns. While the facts of the case are complex, we believe the judgment, and specifically the religiously aggravated charge, means that the bar to successful prosecutions in cases like this is drawn too low. When blasphemy laws were repealed in 2008, it was a victory for freedom of expression. We must make sure that public order legislation is not used to disproportionately target speech – even offensive speech – on religious matters, thereby chilling legitimate criticism and expression.“
TOPIC: The Civil Justice Council’s Review of the PACCAR case
COMMENT BY: David Greene, Co-President of CORLA, the UK’s Collective Redress Lawyers Association
“We welcome the CJC’s recommendations which are a boon for access to justice in England and Wales and speak to the diligence and balance with which the committee conducted its review into litigation funding. Reversing PACCAR will finally put an end to the uncertainty that has hampered funders’ willingness to invest in important and meritorious cases. We urge the Government to take up the recommendation immediately. The proposed light touch regulation of funders is a much-preferred route in this very young market. The report is a fillip to access to justice and will help to ensure that London continues to remain a jurisdiction of choice.”
COMMENT BY: David Bailey-Vella, chair of the Association of Costs Lawyers
“Our first reading of the CJC report is that there is a lot to like in it. The working party has put forward measured proposals to regulate third-party funding, as the ACL had recommended. It seems to have borne in mind the lessons of the costs war in the 2000s, when parties went to extreme lengths to try and show that CFAs breached the regulations and so were unenforceable – but much will depend on how the new litigation funding regulations, if introduced, are drafted.
“We welcome recommendations to introduce mandatory costs management for all funded group actions and to give the court the power to make pre-action costs budgeting and case management orders in funded cases on the application of a prospective party. This recognises how the legal profession as a whole, and Costs Lawyers in particular, have worked to make budgeting an increasingly effective tool.
“There are several other recommendations that could improve the way the costs system works – including a single, simplified legislative contingency fee regime – and the ACL stands ready to provide its expertise to make these ideas a reality.”
TOPIC: The report by the Office of Rail and Road (ORR) which found that travellers face “inconsistent treatment and outcomes” for similar ticketing issues across the railway,
COMMENT BY: Nathan Seymour-Hyde, a partner and Head of Fare Evasion Law, Reeds Solicitors LLP
“Reporting about fare evasion often seems to swing wildly between lamenting the revenue lost to fare dodgers and highly critical reports, which pick apart apparent disproportionate prosecutions of trivial ticket infractions.
The problem at the heart of this matter is the lack of nuance amongst some train operators in dealing with minor ticket issues compared to deliberate cases of rail fraud. As the report rightly points out, it is often extremely difficult for inspectors to correctly ascertain when a passenger has made an innocent mistake or has deliberately avoided paying the correct fare. This is the reason why some matters are ‘reported for prosecution’, enabling the train company to check the previous tickets and come to a proper conclusion. Once the investigation has been completed and if no further issues are discovered, much of the criticism would be addressed if the train company simply sent out a reasonable request for a penalty fare equivalent, rather than the standard notice of intention to prosecute letter.
It can also be a deeply confusing and distressing experience to be placed ‘under caution’ by an inspector, leaving ordinary people feeling like they have been ‘treated like a criminal’. More can be done to clearly explain the need for this process and the likely outcomes to help alleviate the understandable anxiety.
The law in this area places great power in the hands of the rail companies, because simply travelling without a valid ticket is a railway bylaw offence. This places passengers on the backfoot during interactions and relies on prosecutors to use their discretion in a reasonable way.”
TOPIC: The decision by the Supreme Court decision that a bank had a duty to investigate whether a woman was under the undue influence of her partner when she took out a mortgage that would be used partly to pay off her partner’s debts
COMMENT BY: Jennifer Richardson, Financial Crime Partner, Blackfords LLP
“This significantly increases the liability on lenders to undertake checks in respect of those it is lending to, however the decision also raises a lot of questions about how this will be applied in the case of mortgage brokers for example. Will this liability extend to them as well? Should this lead to a more stringent regulatory regime? Solicitors for example are often expected to identify similar situations when dealing with clients, and face regulatory investigations by the SRA if they fail to do so. It may be that we see a similar tightening of regulation amongst lenders as a result of this case.”
COMMENT BY: Liam Bell, Real Estate Disputes Partner, Fladgate
“This decision will come as a huge disappointment to lenders, who will have been keenly monitoring the progress of the claim to the Supreme Court and its potential impact on joint borrowing situations.”
“In allowing the appeal, the Court has confirmed that there is an additional burden on lenders in so-called “hybrid” borrowing cases. These cases arise where a mortgage is made available to joint borrowers for more than one purpose, one of which is to the financial advantage of one borrower only – such as the classic case of a wife guaranteeing repayment of her husband’s debts.”
“Lenders will now always be treated as being “on notice” of possible undue influence in such situations – even if that is only one small part of a wider, multi-purpose loan. To prevent the transaction from being set aside, a lender will need to ensure that the “surety” borrower’s consent is being given without improper pressure from the other borrower. Until now, lenders were entitled to consider the transaction as a whole when assessing whether a loan was being made primarily for one borrower’s purposes. However, the Supreme Court’s decision now means that any element of surety lending (other than truly trivial ones) will require the lender to take a number of practical steps (known as the “Etridge protocol”) to ensure that its security remains enforceable.”
“This is likely to place a substantial administrative burden – and additional legal risk – on lenders who are already facing challenging economic and competitive conditions.”
TOPIC: The Government’s Pension Schemes Bill
COMMENT BY: James Dean, pensions partner, Freeths
“In another blockbuster week for pensions, the Pension Schemes “mega-Bill” pushes forward the government’s agenda for pensions reform, covering many aspects of the DC and DB pensions landscape. Many of the proposed reforms are welcome, but the Bill only sets out the framework for some of the government’s ‘game changing’ reforms. It remains to be seen how the issues it covers develop as the bill passes through Parliament and the underlying regulations which will set out the bulk of the reforms are released.”
LEGAL SECTOR APPOINTMENTS OF THE WEEK
BROWN RUDNICK
Sarah Gogan is joining Brown Rudnick’s Global Litigation and Brand & Reputation Management Team as a partner in the London office. Previously with Harbottle & Lewis Gogan has more than twenty years experiences advising a broadly-basd ‘elite clientele’ which encompasses former heads of state and government, entertainers, entrepreneurs, family offices, members of royal families, and politically involved individuals. This includes those facing political persecution, international criminal proceedings, extradition, INTERPOL Red Notices, asset seizure, and other multifaceted legal challenges. Gogan has also worked in relation to UK personal immigration law, nationality, asylum, and human rights which has often had international reach to a variety of jurisdictions, including Russia, Ukraine, France, Greece, Cyprus, Monaco, Switzerland, Saudi Arabia, Singapore, Hong Kong, Bangladesh, India, Pakistan, UAE, Canada and the U.S. and beyond.
“Sarah’s arrival is a significant step in the continued expansion of both our global litigation and brand & reputation management offering,” said Charlotte Harris, Global Co-Chair of Brown Rudnick’s Brand & Reputation Management team. “Her exceptional reputation and unrivalled experience make her a natural fit for Brown Rudnick. Sarah brings a powerful skill set to our international clients. We are proud to welcome her to the team.”
4PB
Imogen Mellor has joined the family law set 4PB. Formerly with One Pump Court, Mellor is a highly experienced family practitioner with expertise spanning both private and public law children cases. She has been ranked in The Legal 500 as a Rising Star at the Family Bar (children and domestic abuse) and has acted as sole counsel in private children and care proceedings, as well as international cases in the High Court. She is known as an advocate in complex and sensitive cases, including those involving honour-based abuse and child abuse related to faith or belief and frequently represents vulnerable individuals, notably those with mental health and cognitive difficulties. She is currently learning Sign Language and developing a specialism in working with Deaf clients.
“We are thrilled to welcome Imogen to chambers,” said Charles Hale KC, 4PB’s Joint Head of Chambers. “Her expertise will further strengthen our practice, complementing and enhancing our family law and Court of Protection teams. Imogen is an excellent addition to chambers, and we are so pleased to have her join us.”
We hope that you’ve been interested or amused by something in this week’s LEGAL DIARY. If so do send on to colleagues.
And please continue sending your ‘Diary-type’ stories, insights legal comment and appointments to
fennell.edward@yahoo.com