Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
29 August 2025
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK: Judgment Day?
There has been comment recently in other parts of the legal media on the likely long term impact on high profile law firms, primarily American but with offices in the UK, which have caved in and done deals with the Trump Administration. “History will not be kind to them” has been one headline statement.
Of course there are decisive, damnable junctures from which some businesses have never recovered. It will be interesting to see, for example, whether Tesla’s presence in the motor market can ever be restored. But all too often, maybe, the world has a short memory. As an instance, in the press this week there is astonishment that Fujitsu is still in the running for large scale UK Government IT contracts notwithstanding its catastrophic role in the Post Office managers’ scandal.
So partners at Paul Weiss, Kirkland, Skadden and other collaborating firms can probably sleep soundly in their beds. By the time the final trump sounds their ‘sins’ will, no doubt, have been washed away.
The LegalDiarist
In this edition
+ LEGAL DIARY OF THE WEEK
Fraud Prevention: No Time to Fail
In Pisces We Trust?
Cost-A-Lot? ACL Aims Up Market
Decline in PE Interest in Law?
+ CONTRIBUTED ARTICLE OF THE WEEK
+ LEGAL COMMENT OF THE WEEK
The legal action in the USA by 4chan against Ofcom, retailers’ need for business rate reform, Lidl GB’s legal agreement with the EHRC, the Poundland Restructuring Plan, the Engagement of the DECADE!!!, Anthropic and its copyright infringement for AI training
+ APPOINTMENTS OF THE WEEK
Browne Jacobson and Gibson Dunn
LEGAL DIARY OF THE WEEK
Fraud Prevention: No Time to Fail
This coming Monday could be a very big day for City lawyers with white collar crime credentials.
The arrival of the ‘Failure to prevent fraud” offence, brought in by the Economic Crime and Corporate Transparency Act (ECCTA) 2023, means that there will be sharper focus than ever on the responsibilities of Directors and Officers to keep tabs on what is going on in their organisations. The turning of a blind eye will no longer be tolerated. “The introduction of the new failure to prevent fraud offence is a reinforcement of criminal responsibilities facing directors and officers of UK businesses,” says Craig Watson, Underwriter at Kayzen Specialty. “This legislation increases the personal burden on directors and officers, raising the bar for compliance and governance standards within organisations.”
Initially the scope of the offence will only cover a relatively small number of the very largest companies (i.e those with a turn-over of more than £36m, with assets of more than £18m or employing more than 250 people). But the impact of that will nonetheless be felt across supply chains as smaller businesses are swept up as the ‘associated persons’ by which the largest firms may be exposed.
The net result is that all businesses will be expected to demonstrate robust fraud prevention measures.
“As with anything, the human factor is often the hardest to plan for,” continues Watson. “One bad actor within the business has the potential to undermine all best practice in one fell swoop. Therefore, directors and officers must place equal emphasis on creating an open culture where employees can speak up, and on ensuring that their organisations have comprehensive fraud risk assessments, clear internal processes, and effective training modules in place. Failure to implement and evidence these controls could leave senior managers exposed to personal liability, with ignorance no longer a viable defence.”
How this now plays out will be fascinating to track.
In Pisces We Trust?
The London Stock Exchange has been going through a rough time of late but maybe Pisceans are going to help turn things round. Not, that is, those governed by the star sign but those investors who are going to back the new Private Intermittent Securities and Capital Exchange System (PISCES) platform.
The approval of the LSE by the Financial Conduct Authority to operate this snazzy new platform – which allows investors to trade shares in private companies – is reckoned to be a “major milestone” in an effort to boost growth and unlock capital markets.
But the move has certainly got the backing of some City lawyers. According to Paul Airley, (above) partner and capital markets lawyer at Fladgate, the launch of PISCES is a welcome development for UK capital markets. He emphasises, however, that PISCES is not a replacement for an IPO given that it is a secondary market only.
“PISCES offers a structure for liquidity at a pre-IPO stage in a company’s growth journey,” says Airley. “ Early-stage investors have the opportunity to realise their investment and new investors can be introduced to support the company’s growth. In an investment environment increasingly dominated by private capital, a framework to stage periodic partial ‘recycling’ of a company’s investor base as it grows its business, is a significant development in the UK capital markets ecosystem.”
Airley adds that the new system’s disclosure requirements will allow a company and its management to familiarise themselves with the principles and processes around an IPO and life as a listed company. “We anticipate that this will tend to increase the appeal of an IPO, with the collateral benefit that the IPO process should be smoother when ultimately undertaken,” he says.
So some light on the horizon after all?
Cost-A-Lot? ACL Aims Up Market
The Association of Costs Lawyers has just released its business plan for the next three years and one of its key priorities is that cost lawyers should become recognised as Grade A fee-earners in the guideline hourly rates. And beyond that they should be appointed to the Bench. So a pretty ambitious agenda.
As the ACL points out, not only has its membership numbers being growing but so too has its visibility and influence across the costs sector and the wider legal profession. “Costs remain at the centre of the debate in litigation,” it says emphatically.
Drafted by David Bailey-Vella, who took over as Chair in April for the next three years, the business plan wants to build on the significant momentum the ACL has been developing. Amongst a number of achievements there has been record participation in special interest groups, regional meetings, and conferences. Meanwhile next year the Association will expand to create new groups focused on mediation in costs disputes and on group litigation. It is notable, for example, that last month, the Competition Appeal Tribunal said people bringing collective actions should always instruct costs specialists to assist them with scrutinising their lawyers’ fees.
Other big ambitions include working towards applying for a Royal Charter, which would mean that only members would be able to call themselves ‘Chartered Costs Lawyers’ as a way of marking out their expertise more clearly than ever.
One problem the organisation must face, however, is a dearth of younger members with just 3.1% of Costs Lawyers under the age of 30. To remedy that figure a new apprenticeship route is expected to be introduced over the next year and designed to attract school leavers and early-career professionals.
“The Costs Lawyer profession is going from strength to strength,” said Bailey-Vella, “and we have reached a place where there needs to be greater recognition of this. We are working on several fronts to achieve this and have received a positive reaction, so I am hopeful of progress.”
Decline in PE Interest in Law?
Are law firms becoming less attractive for private equity investors? When, some years back, reforms were introduced to permit external ownership of law firms there was a flurry of interest as the old partnership model seemed no longer to work so well especially in the mid-range of the market.
But now, according to analysis of PitchBook data* by the audit, tax and consulting firm RSM UK, there have been successive falls quarter-on-quarter in investment in professional and business services.
“Following a tail off in deal volume for professional and business services in Q1 2025, the slight downward trend in deal activity has surprisingly continued into Q2,” said Hywel Pegler, Head of Professional and Business Services at RSM UK. “We do however expect to see a rebalancing of deal activity to more normal levels moving into Q3 and beyond, as we know there’s currently appetite in the market. Investors are looking for secondary/bolt on investment opportunities, due to demand for legal, accounting and consulting services regardless of economic uncertainty and seasonal lulls.”
Meanwhile, of course, at the top end of the legal market the major firms, by and large, are proceeding serenely from strength to strength. Success continues to breed success. Will it ever end?
LEGAL COMMENT OF THE WEEK
TOPIC: The legal action in the USA by 4chan against Ofcom
COMMENT BY: Terry Green, partner, Katten Muchin Rosenman UK LLP
“This lawsuit shows that Preston Byrne is serious about his fight against Ofcom. Irrespective of the merits, this is a critical moment for Ofcom and its international enforcement. There is no doubt that overseas platforms are all keeping a close eye on how this lawsuit progresses and Ofcom’s response to it. Ofcom’s response to this lawsuit will be crucial as this has the risk of being replicated across the United States and even globally.
The plaintiff refers to the Mutal Legal Assistance framework which is a framework for criminal investigation or proceedings. Ofcom’s toolkit for enforcement goes beyond criminal sanctions to individuals, Ofcom may apply to UK courts for business disruption measures such as access restrictions and/or payment processors restrictions, as well as initiate financial penalty proceedings.”
TOPIC: The British Independent Retailers Association’s announcement that 47 % of retailers identified business rates reform as the most critical issue requiring government attention
COMMENT BY: Sharon Latham, partner, employment team, Clarke Willmott
“This reflects the urgent need to overhaul a system that disproportionately impacts small and high street businesses.
“Meanwhile recent changes to National Insurance thresholds have significantly increased employment costs for retailers, compounding financial pressures for businesses still suffering from the after-effects of the pandemic as well as supply chain instability and unpredictable energy costs.
“Retailers are under immense pressure and without transitional support, we risk seeing a continued surge in redundancies, contract breaches, and tribunal claims. Employment stability must be a central focus of the autumn statement – it must reflect the realities of operating in today’s retail environment and support the long-term sustainability of the sector.”
TOPIC: The Poundland Restructuring Plan
COMMENT BY: Benn Richards, Partner, Restructuring & Insolvency, Michelmores LLP
“The High Court has recently sanctioned Poundland’s Restructuring Plan, following the sale of its business and assets to Gordon Brothers for (without any irony) £1. Restructuring Plans were introduced as part of the government’s emergency legislative measures during the Covid-pandemic and are a way for a company to “cram down” “out of the money” creditors i.e. those whose debt sits below the value of the company and its assets receive very little, if anything, in the restructuring. Restructuring Plans are seen as a tool to restructure the business in order to have a leaner and profitable operation post the restructuring.
“Poundland’s RP will involve the closure of 68 stores and two distribution centres, which will reduce Poundland’s footprint on the High Street from over 800 stores to around 650 – this is a common theme in High Street restructurings and is another indication of a less than buoyant High Street retail market.
“The implications for landlords will be significant, with the company seeking significant large reductions in rent.”
TOPIC: Lidl GB’s legal agreement with the EHRC regarding sexual harassment in the workplace
COMMENT BY: Helen Dyke, Senior Solicitor, Employment Team, Harper James
“The Lidl case is a powerful reminder that protecting staff from harassment cannot be reduced to simply written policies or procedures. Instead, it requires the creation of a workplace culture where people genuinely feel safe, respected and supported.
“The tribunal’s findings that managers were unaware of the company’s anti-harassment policy and that no risk assessments had been carried out highlight the risks that arise when everyday practice fails to reflect the standards an organisation sets for itself.
“The introduction of the Worker Protection Act has reinforced the importance of prevention by placing a proactive duty on employers to take reasonable steps to stop harassment before it occurs. This marks a significant and positive shift in the law, ensuring that responsibility does not rest on individuals coming forward but on organisations actively creating an environment where harassment cannot take root.
“Regardless of whether a business is a well-known national retailer or a smaller, fast-growing enterprise, the responsibility is the same – to show clearly how it is putting protections into practice through thorough training, accessible reporting channels, regular monitoring of workplace culture and thoughtful risk assessments.
“Lidl’s decision to work with the EHRC and commit to additional safeguards shows how organisations can respond constructively when things go wrong, while also signalling the value of engaging with regulators to strengthen protections and rebuild trust. Ultimately, preventing harassment is not only a legal duty but also a reflection of the values a business upholds, and those employers who embed respect and safety into their culture are far more likely to foster loyalty, wellbeing and long-term success.”
TOPIC: The engagement of the Decade!!! – Taylor Swift and Travis Kelce’s legal announcement
COMMENT BY: Jake Mitchell, family lawyer, Freeths
“Taylor Swift and Travis Kelce have both risen to the very top of their industries, and while their relationship looks unstoppable, even the strongest couples can benefit from a prenuptial agreement. As Kanye West once (in)famously put it: ‘We want prenup, we want prenup, yeah!’ It may not be the most romantic document they’ll ever sign, but by recognising each other’s achievements and setting clear foundations, Taylor and Travis can ensure that the only drama in their future is the kind that plays out on stage or on the field — not in the courtroom.”
COMMENT BY: Joanne Edwards, Family Partner & Mediator, Forsters
“With an estimated £1 billion-plus fortune and globally recognisable brand, each bringing independent wealth to the marriage, but her wealth reportedly being more than 20 times his, Taylor Swift and Travis Kelce’s situation is a textbook case for a well-crafted prenup.
“In England and Wales, since the landmark Radmacher case, the courts have been willing to uphold prenups provided they are entered into freely, with proper legal advice and financial disclosure, and meet the test of fairness. For high-profile couples, a well-crafted prenup protects both parties and avoids the risk of costly, public disputes if things go wrong.”
TOPIC: The news that a group of book authors has reached a settlement with AI company Anthropic in their copyright infringement lawsuit over the company’s use of copyrighted books to train its Claude chatbot.
COMMENT BY: Dr. Kolochenko, CEO at ImmuniWeb, and Vice-Chair at the ABA’s Information Security Committee,
“While large AI companies pay millions to lawyers to defend the mushrooming copyright infringement lawsuits, AI fatigue and disillusionment are rapidly growing. Amusingly, whoever prevails in the now-pending copyright litigation on both sides of the Atlantic, AI companies are poised to face serious troubles. Recent revelations about the massive and deliberate exploitation of pirated content for LLM training by largest AI vendors – are just the tip of the iceberg of the unexpectedly nasty and painful surprises, more are looming on the horizon.
The current business model of many AI companies (i.e., grab everyone’s intellectual property without paying, claim that you do this for the sustainable innovation and everyone’s well-being, and then make billions for founders and shareholders) may pretty soon become economically unviable. Although the AI bubble may just quietly deflate instead of bursting as some analysts predict, a new so-called “AI winter” will probably happen. Having said this, a lot of handy GenAI tools are here to stay, but having nothing in common with the Artificial General Intelligence (AGI) so enthusiastically promised by AI companies to raise billions from investors.
The inefficiency and ineffectiveness of the EU AI Act, which provides little to no protection to copyright owners, means that eventually, copyright owners must decide to defend the fruits of their intellectual labour themselves, erecting technical barriers to make illicit data scraping prohibitively expensive or simply impossible. Worse, an avalanche of breach-of-contract lawsuits is visibly coming, but this time, AI companies will likely have to pay (both human lawyers – that they vigorously promised to replace – and copyright owners around the globe).”
LEGAL SECTOR APPOINTMENTS OF THE WEEK
BROWNE JACOBSON
Susan Kemp has been appointed as a Partner in the commercial real estate team at Browne Jacobson bringing the firm’s real estate legal team to 120-lawyers across seven offices in the UK and Ireland.
Previously with Shoosmiths, Kemp has worked on national property portfolios earning recognition from Legal 500 as a ‘Next Generation Partner’. She is regarded as bringing sharp commercial expertise to complex real estate deals, retail sector advisory work and financing arrangements.
“We’re investing heavily in our real estate and construction capabilities,” said Michael Sadler, Partner and Sector Lead in Real Estate and Construction. “Susan represents exactly the calibre of lawyer we’re targeting. This appointment signals our intent – we’re actively recruiting more exceptional talent to support our growth ambitions.”
The firm advises on all aspects of real estate from planning and financing to construction, development and estate management and it includes major commercial developers, retailers and leisure operators, housing groups and public authorities among its clients.
GIBSON DUNN
Adam Dawson has joined Gibson Dunn as a Partner in the firm’s Antitrust and Competition Practice Group in the Brussels office. Formerly with Baker Botts, Dawson’s experience has been in high-stakes merger investigations, including negotiating remedies with competition authorities worldwide. His clients have ranged across a broad range of industries, including human and animal health, digital platforms, chemicals, energy, packaging, and air transport.
“Adam’s arrival marks a significant step in the growth of our European antitrust platform,” said Christian Riis-Madsen, Co-Chair of Gibson Dunn’s Antitrust and Competition Practice Group and partner in charge of Gibson Dunn’s Brussels office. “His deep experience in merger control and antitrust matters, especially in the life sciences and technology sectors, complements our global practice and enhances our ability to serve clients in complex cross-border matters. Adam’s strong relationships and business development acumen make him a valuable addition to our team.”
Dawson added that Gibson Dunn’s exceptional global reach and collaborative culture would offer an ideal environment to grow the practice and better serve his clients in Europe and beyond.
We hope that you’ve been interested or amused by something in this week’s LEGAL DIARY. If so do send on to colleagues.
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fennell.edward@yahoo.com