Edward Fennell’s LEGAL DIARY

Diary news plus insights, commentary and appointments from the legal world

1 August 2025

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: PONDERING THE ANGLO-AMERICAN PROBLEM

Across the pond the ‘Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination’ issued this week by the United States Justice Department is the inevitable end-product of the culture wars which have consumed US (and to some extent UK) society in recent years. It also brings into focus the problem of globalized business versus nation-based jurisdictions, values and beliefs. As referenced below by Lucy Blake, a partner at Jenner & Block, “What [organisations] are required to do in the UK or EU could land them in hot water in the U.S., and vice versa.”

Whether clever corporate lawyers can work their way round these obstacles remains to be seen. But it will certainly give top management pause for thought – especially in London after the clumsy debacle over the trans debate at Clifford Chance. In these troubled times the cynic will take comfort from the words of Machiavelli, “For some time now I have never said what I believe nor ever believed what I said.”

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

Just bought the AI kit but don’t know how to plug it in?

Competition Appeal Tribunal backs involvement of Costs Lawyers

Local Charities benefit from Browne Jacobson

Very Lost in Translation

+ CONTRIBUTED ARTICLES OF THE WEEK

The Standish Case: Will it Stand Up? by Jayne Martins

Insurers Call for Further Regulation for Electric Cars by Angela Hanmore and Petty Abrams

+ LEGAL COMMENT OF THE WEEK

on the US Department of Justice and DEI policies, Age Verification and VPNs, Google’s AI Overviews and employers’ ADHD responsibilities

+ APPOINTMENTS OF THE WEEK

Bloomsbury Square Employment Law and BCLP

LEGAL DIARY OF THE WEEK

Just bought the AI kit but don’t know how to plug it in?

AI development has been too fast and too big for law firms to handle effectively. That has to be the conclusion from a just-published survey by Passle, the AI-powered thought leadership platform for professional services, into how the legal sector is responding to the potential of these new awe-inspiring tools.

Yes, firms of all types and sizes now feel sure that AI is the ‘must make’ investment. But what actually to do with this shiny new resource is a different matter. “Law firms will spend millions on AI this year – the equivalent of £2k per lawyer – but many are still struggling to make it work for them, new research show,.” declares Passle.

For a start firms are nervous about the risks to which AI will expose them to concerns over such issues as data privacy (55%) and hallucinatory outputs (36%) where the response generated by AI includes false or misleading information. 

But on top of that are practical and management tasks such as internal struggles over IT restrictions (52%), an inability to implement AI effectively(50%) and an inability of suppliers to deliver proven solutions (45%). Plus, oddly enough, that the use of AI might be ‘incompatible’ with a firm’s corporate policy.

These all look like the quandaries of initial (or even premature) adoption with pressure from clients and the desire to be seen to be at the leading edge of development often being the drivers for investment. Indeed, less than 40% of firms actually thought AI would help them cut costs.

“The main barriers to AI adoption by law firms appears not to be a lack of funding, with substantial budgets set aside, or indeed the availability of the technology itself,” says Connor Kinnear, Chief Marketing Officer at Passle, “ What seems to be the biggest barrier is firms’ ability to apply it.”

“Most firms are willing, but not always able to harness the power of AI to make themselves stand out, and what is clear is that there needs to be investment not just in terms of funding but in understanding the tech that’s on offer, how it works, and what is the right fit for them.”

Oh well, we are just absolute beginners.

Competition Appeal Tribunal Backs Involvement of Costs Lawyers

In a move which is likely to give a major boost to the ‘costs’ business the Competition Appeal Tribunal (CAT) has just declared that people bringing collective actions should always instruct costs specialists to assist them with scrutinising their lawyers’ fees.

In relation to two collective actions worth almost £4bn against Amazon, a three-person CAT panel – chaired by Mr Justice Roth – said it was satisfied by the arrangements which had been put in place to instruct independent lawyers at a costs firm to provide monthly oversight reports “and where appropriate, identify any queries arising from the invoices, and provide commentary in determining whether further clarification and/or adjustment should be sought.”

The involvement of costs lawyers should now become the “standard approach”, added the CAT panel, given that class representatives are not usually in a position to do this effectively themselves.

Unsurprisingly The Association of Costs Lawyers (ACL) has said that it welcomed the declaration. ACL chair David Bailey-Vella commented, “This decision reflects the increasingly pivotal role of costs professionals – and particularly Costs Lawyers, as independent and regulated experts – at every stage of the litigation process. Class representatives are understandably heavily reliant on their lawyers in cases as big and complex as these, but with so much money on the line, the tribunal recognised the importance of them having independent advice to ensure that their costs – which ultimately come out of the class’s damages in the event of success – are rigorously policed. Costs Lawyers are the people to do this.”

Local Charities benefit from Browne Jacobson’s Generosity

Charitable giving – should it be done discreetly without drawing any vainglorious attention to oneself? Or maybe better to be loud and proud as a way of encouraging others to emulate you.

Well Browne Jacobson is clearly in the latter camp and is publicizing the fact that the firm has donated more than £36,000 to 20 charities across its office network over the past year. Overall that take the Browne Jacobson Charitable Trust (BJCT) fundraising total to more than £170,000.

The aim of the fund is to use contributions from the Browne Jacobson partnership to provide small donations to local charities in the local communities near to its offices. It says that it prioritizes supporting causes that are important to Browne Jacobson employees, who must be involved with or have a strong connection to the charity.

According to Richard Medd, the Managing Partner at Browne Jacobson and the senior leader sponsor of the firm’s community action strategy. “As a firm with an ambition to be at the forefront of society’s biggest issues, we want to make a meaningful, positive impact within our communities by supporting a diverse range of charities. By developing a community action plan to manage our charitable activities, we are able to target charities with shared values and purpose, while putting our people at the heart of this strategy means those who put the effort into fundraising feel even more incentivised to support these great causes.”

Among beneficiaries of the Brown Jacobson campaign recently have been Dementia Disco, a charity based in Stockport and Greater Manchester whose mission is to use music to inspire memories; Velindre, a cancer charity based in Cardiff and Inside Out Wellbeing, a London-based provider of culturally informed wellbeing support.

Very Lost in Translation

It is encouraging that the cross-party House of Lords Public Services Committee has launched an inquiry into the preparation and use of evidential transcripts in the criminal courts, including transcripts of suspect interviews, witness/victim interviews, and forensic audio.

The focus of the inquiry, according to the Committee, will be on the methods used to prepare the transcripts, how they are used in court and how they are checked and regulated. And a shortlist of key questions has been drawn up on which written evidence is being invited. These include:

• Who is responsible for preparing transcripts of suspect interviews and/or forensic audio transcripts to be used in court cases and what training and qualifications do these transcribers receive?
• To what extent is the content of suspect and/or forensic audio transcripts accurate, and how important is their accuracy for criminal proceedings?
• Who is responsible for evaluating the quality of suspect interview transcripts and/or forensic audio transcripts and how effective is this evaluation process in practice?
• To what extent can issues with transcription of suspect interviews and/or forensic audio lead to potential miscarriages of justice? Are there some issues which are more problematic than others?
• Is there anything you would suggest to change the way suspect interview and/or forensic audio transcripts are presented to the courts?

Let’s hope that this is just the start of a vitally needed area of improvement.

CONTRIBUTED ARTICLES OF THE WEEK

The Standish Case: Will it Stand Up?

By Jayne Martins

Following last month’s decision in the case of Standish v Standish, the Supreme Court has now made it clear that there is a distinction when it comes to non-matrimonial property. The Court unanimously held that Clive Standish, an extremely wealthy retired banker, would not be forced to split equally almost £80 million he had given to his ex-wife, Anna during their marriage to mitigate tax by taking advantage of her non-dom status as an Australian citizen.

Central to the case was the argument that the funds had been acquired before the marriage and were therefore not subject to the principle of “sharing”, which is usually applied to assets built up during a marriage regardless of which spouse acquired or earned the assets. This case makes it clear that it does not matter whose name the non-matrimonial property is in – a transfer between spouses of non-matrimonial property does not necessarily make it matrimonial property, we must consider the source of the funds.

I believe the Supreme Court made the right decision because it was clear that the husband acquired the majority of his wealth prior to the marriage, and the transfer of the assets to his wife was made solely for tax efficiency reasons, it was never intended to become her asset. However, I do not necessarily agree with my family law peers who have commented that the case brings clarity. While it is true that it provides clarity for the ultra-wealthy and their tax planners, the issue is somewhat murkier for divorcing clients with only moderate wealth. Here, the elephant in the room is needs, because the Court makes it clear that a couple’s needs and those of their children will always come first. If matrimonial assets are insufficient to meet those needs, non-matrimonial assets can be shared or relied upon to ensure needs are met. In cases involving ultra-high net worth individuals, where needs are already met and there are surplus assets, the guidance from Standish will be useful, particularly where there are inherited or gifted assets.

But for my divorcing clients, who mostly comprise moderately wealthy couples in the £1 – £10 million bracket, I would argue that the position is no clearer. For example, when a couple has enjoyed a long marriage and has children, would it be fair for one spouse’s asset that may have been acquired before the marriage, or sizeable inheritance to be excluded from the marital assets if this meant the other spouse ended up with a substantially inferior lifestyle and potentially unable to meet their reasonable needs? What message does this send to the children and how does that align with the concept of fairness that statute requires financial settlements to be? I would argue that in these situations, the sharing principle, quite rightly should continue to be applied to all assets except where there is a valid nuptial agreement.

Jayne Martins is a partner in the family team at RWK Goodman

Insurers Call for Further Regulation for Electric Cars

by Angela Hanmore and Petty Abrams

The rise of electric and hybrid vehicles (EVs), evidenced by the 75,000 public EV charging devices now installed in the UK, brings challenges in risk evaluation and policy development.

As of May 2025, the Association of British Insurers’ (ABI) updated its ‘Salvage Code’ to include guidance for EVs. These changes affect motorists, insurers and lawyers. The Salvage Code regulates the manner in which vehicles are assessed after an accident, determining whether they are fit to be repaired or must be scrapped. While voluntary, the standards in the Code are widely adopted.

The Code recommends that assessors be thoroughly trained in the repair and storage of high voltage systems, in line with the Health and Safety Executive’s (HSE) calls for deeper knowledge, skills, tools and equipment for assessors working with EVs. 

Following the Code, EVs with damaged high voltage battery systems can now be categorised as A (scrap/recycle) or B (break – vehicle unsuitable to repair but functional parts may be recycled) distinguishing between structural and non-structural damage. This provides much needed clarity and uniformity offering reassurance to consumers purchasing second hand EVs and to insurers.

It should help to address the growing concern around the safety and repairability of accident damaged EVs. When lithium-ion batteries are compromised, there is an increased risk of them catching fire and fire services report difficultly getting fires under control.

Although the Lithium-ion Battery Safety Bill, which makes provision for the safe storage, use and disposal of these batteries, had its first and second reading in the House in 2024, no progress has been made. It is unlikely that any substantive progress with legislation will be made until the start of the parliamentary term 2026/27.

Given the A/B categorisation will now apply to the assessment of damaged EVs, it has far-reaching underwriting and claims implications, likely leading to more EVs being written off and increasing the number of total loss pay-outs. Underwriting policies will have to provide for battery degradation and damage arising from accidents and fire risks. Battery fires and damage caused whilst charging may also result in third party and subrogated claims.

To maximise the potential from the burgeoning market in EVs a collaborative approach is needed from insurers, manufacturers, infrastructure providers and regulators, to ensure safe and responsible development. The government’s current public consultation in safety principles, standards and performance in Automated Vehicles could help evaluate risks, reliability and safety, which will benefit the EV sector, but if the government is serious about tackling these issues speedily, it should support the Lithium-ion Battery Safety Bill, or introduce government-led replacement legislation.

Angela Hanmore (partner) and Petty Abrams (Senior Associate), are members of the Forum of Insurance Lawyersand lead the DWF ACE (Area of Core Excellence) Group in Electric/ Autonomous Vehicles and Micro-Mobility

LEGAL COMMENT OF THE WEEK

TOPIC: The memo released earlier this week by the United States Justice Department titled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination” which outlines what the administration sees as the “significant legal risks” around DEI programs and practices.

COMMENT BY: Lucy Blake, Partner at Jenner & Block

“The memo released by the DOJ exacerbates the tension for global companies. They face a Catch 22 situation with fundamentally divergent legal obligations on different sides of the pond – what they’re required to do in the UK or EU could land them in hot water in the U.S., and vice versa.

“The tension is particularly acute for companies with government contracts, whose failure to comply with one set of obligations or the other may risk exclusion from public tender processes, and a subsequent loss of business.

“This divergence between obligations in different jurisdictions gives rise to difficult legal, commercial, reputational, and political predicaments.” 

“It means that businesses are being forced to “pick their poison” and may need to choose which set of responsibilities they are willing to breach.”

“The DOJ memo outlines what the administration sees as the “significant legal risks” around DEI programs and practices.  The memo sets out: (a) a “non-exhaustive list” of unlawful practices, including examples; and (b) recommended best practices.”

“Across the pond in the EU and UK, however, there are multiple legal requirements, some of which are in tension with the expectations outlined in the memo. The dissonance between competing obligations places those with transatlantic businesses in an invidious position.”

TOPIC: The threat posed by Google’s AI Overviews which summarise a search result with a block of text

COMMENT BY: Iona Silverman, IP & Media Partner, Freeths

“This cannibalisation of content illustrates the importance of copyright protection. AI is currently free riding on the efforts of others, but Governments seem unwilling to pass any legislation that might hamper the progress of AI, for fear that it will impact the economy. Over in the US, fresh off the press is the White House’s AI Action Plan, tellingly titled “Winning the Race”. It focusses on accelerating innovation, building American AI infrastructure and leading in international diplomacy and security. There is no mention of copyright protection or of the value of the content that AI learns from.

“In the UK, the Data (Use and Access) Bill has been subject of huge criticism from creatives such as Sir Elton John and Dua Lipa. They, and the House of Lords, wanted to force tech companies to declare their use of copyright material when training AI tools. However, the UK Government refused the amendment, saying it is carrying out a separate consultation on copyright. Ultimately, fear of holding back the economy or of falling behind other countries in the great AI race comes at the expense of creatives.”

TOPIC: The OnelIne Safety Act’s new Age Verification regime and the rise of Virtual Private Networks (VPNs)

COMMENT BY: Dr. Kolochenko, CEO at ImmuniWeb, a Fellow at the European Law Institute (ELI)

“Whilst there is no shortage of disagreement over the eventual efficiency and effectiveness of the new law, we probably need to accept it as a new reality that will likely become the “new normal” in many countries pretty soon.

There is a compelling interest to protect our children from harmful content and sexual predators that actively exploit adult-oriented websites to find new underage victims. It is true that protection of minors will probably require some compromise of our privacy – if properly implemented – for example without leaking our browsing history or IDs to third-party age-verification services – the mandatory age-verification mechanism may hold water.

As to a simple bypass of age verification with a VPN, we will probably see additional legislation pretty soon that will require adult-oriented website to ban VPN traffic. Certainly, some VPNs will remain undetected, however, about 90% of most popular free and commercial VPN services can be fingerprinted and will likely be blocked by adult-content providers, closing the loophole.

As to a more sophisticated bypass of age verification with deep fakes, synthetic or stolen identities, it’s not a big deal in the current context: very few kids will be able to do this, while adults, who are unwilling to disclose their identity, are welcome to stay anonymous as it won’t harm anyone.”

COMMENT BY: James Clark, Partner, Spencer West LLP

“The recent entry into force of age-verification requirements has brought the Online Safety Act firmly into the public spotlight. However, mandatory age-verification for adult content is just one feature of the law.  The Act includes further measures to protect children from age-inappropriate content – such as risk assessments and reporting tools for users – as well as other less well-reported and less controversial measures that are not specific to children at all, but which, in summary, are designed to require website publishers to take more responsibility for illegal or harmful user-generated content, for the benefit of all internet users in the UK.   

The main reason for the current pushback against the Act – which has included an online petition demanding repeal that has attracted hundreds of thousands of signatories – is the perceived risk to user privacy, particularly in the context of the consumption of adult content, which is an inherently sensitive and private matter.  However, website operators can go a long way to allay these concerns by designing age-verification tools that minimise the collection and retention of user personal data.  For example, biometric tools that assess a user’s face to estimate age without retaining a copy of that image or any ID documentation (much as would happen when a customer is buying alcohol in a supermarket). 

For any online businesses that allow user-generated content (regardless of whether that includes ‘adult’ content), the recent publicity is a salutary reminder of the existence of the Online Safety Act, and of Ofcom’s determination to enforce this new law robustly.   With respect to age-verification specifically, businesses should take account of public concern about the perceived intrusiveness of this measure.  They should consider privacy implications and work with trusted verification providers to avoid reputational and legal risks. Transparency, user trust, and proactive governance will be key to navigating this new regulatory landscape.”

TOPIC: The case of a woman diagnosed with ADHD whose employer had failed to make ‘reasonable adjustments’

COMMENT BY: Kate Watson, Senior Solicitor, Employment Team, Harper James

“As recent reporting makes clear, the failure of a large IT firm to provide recommended ADHD awareness and neurodiversity training has been found by an employment tribunal to amount to disability discrimination under the Equality Act 2010.

“This should serve as a warning to employers of all sizes to ensure they are making reasonable adjustments and following occupational health recommendations where reasonable. Failing to act on occupational health advice, such as providing ADHD awareness training, can amount to a failure to make reasonable adjustments, which is unlawful disability discrimination.

“Supporting disabled employees is not optional. Employers have a legal duty to make reasonable adjustments, and that includes equipping managers with the relevant knowledge to support their staff.

“This isn’t, however, about implementing expensive programmes. It’s about culture and compliance. Simple proactive steps like manager training, flexible working patterns and clear communication channels can make a meaningful difference. In a tight labour market, employers that embrace neurodiversity not only reduce legal risk but also unlock the talent, creativity and loyalty of a more inclusive workforce.”

LEGAL SECTOR APPOINTMENTS OF THE WEEK

BLOOMSBURY SQUARE EMPLOYMENT LAW

Emily Bradshaw is joining Bloomsbury Square Employment Law as a Partner. Formerly with Pattinson & Brewer, where she was a Partner and Head of Employment, Bradshaw has nearly 20 years of expertise in a practice which has covered the full spectrum of employment law issues. She has particular expertise in discrimination claims, especially those involving age, disability, and pregnancy and has advised senior-level employees across a wide range of sectors including financial services, film and television, healthcare, journalism, higher education, sport, and retail.

“We are thrilled to welcome Emily to the team,” said Garvey Hanchard, Partner at Bloomsbury Square Employment Law. “Her arrival reflects both the firm’s continued growth and our ongoing investment in top talent. Emily brings a wealth of experience in high-value negotiations and complex employment litigation, which will further enhance the depth and quality of service we offer. With her impressive track record and commitment to employee-focused work, Emily is a perfect fit for our firm and for our clients based in London and beyond.”

BCLP

David Klass is joining BCLP as a Partner in the Tax Advice and Controversy practice in the firm’s London office. Originally with Slaughter and May Klass has held partnership roles in several international law firms including, most recently. at Hill Dickinson.

Klass’s tax practice is broad covering corporate and commercial transactions, debt financing, restructurings and reorganizations, and tax advisory work. He has experience advising across a wide range of transactions, including corporate matters (M&A, private equity, venture capital and capital markets), banking and finance, fund structuring and general commercial contracts.

“We’re delighted to welcome David to the team,” said Elizabeth Bradley, Partner and Global Practice Group Leader for Tax, Employee Benefits and Private Client at BCLP. “With a strong pipeline of UK corporate tax work and growing demand for structuring in M&A transactions, David brings precisely the experience needed to meet this demand and ensure high-quality delivery across complex, high-value matters.”

Klass added, “I’m particularly excited to develop the cross-border aspects of my work and contribute to high-value M&A activity with truly global insight.”

We hope that you’ve been interested or informed 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