Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
20 February 2026
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK:
BROTHERS-IN-LAW
A man in his 60s, living remotely in Norfolk, was arrested by the police yesterday and interviewed about something which happened many years ago. The world went crazy. Apparently he is somebody’s brother.
The big winner from this story is, ironically, the law. And , of course, lawyers. Suddenly all and sundry are espousing the importance of the law. “Let me state clearly:the law must take its course” said the arrested man’s brother. Meanwhile, a little while ago, even the Prime Minister had declared, “Nobody is above the law”. But then he is a lawyer so it’s what might one expect.
If anything good comes out of this affair then it might be that the status of the law and its centrality to our society is better appreciated. Of course, whether it will do much for the administration of the law remains to be seen.
Meanwhile those of us without brothers are counting our blessings.
The LegalDiarist
In this edition
+ LEGAL DIARY OF THE WEEK
MAZUR MAKE OR BREAK MOMENT
SCOTTISH SCANDAL LEAVES ENGLISH CLIENTS HIGH AND DRY
SEPARATION BRISTOL-FASHION
BEING BOLD ABOUT THE B LISTERS
+ CONTRIBUTED ARTICLE OF THE WEEK
Judges and lawyers are ‘flying-blind’ when it comes to hindsight in costs law argues Francis Kendall
+ LEGAL COMMENT OF THE WEEK
on compensating injured children for ‘lost years’ , removal of intimate images from the Internet, whistleblowing data, the Cenghiz Arif case, , the ICO and the DSG retail case, HMRC advice on tax advisers
+ APPOINTMENTS OF THE WEEK
BELLEVUE LAW and BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
LEGAL DIARY OF THE WEEK
MAZUR MAKE OR BREAK MOMENT
While most of the world will be looking in another direction – mostly towards Norfolk – on Monday many lawyers concerned with the administration of justice will be focused on the Court of Appeal and what happens in the latest iteration in the Mazur case.
Set off by a judgment last September by Mr Justice Sheldon, who ruled that the Legal Services Act 2007 permits only authorised individuals to conduct litigation, the whole busines model of the law industry could now be at risk.
So over three days next week the issue will be thrashed out. Commenting earlier this week, CILEX chief executive Jennifer Coupland said, “Since the judgment in Mazur was handed down last year, CILEX has had serious concerns about its impact on the legal sector.The consequences for many of our members have been profound but the shock waves go far beyond CILEX, affecting the operation of law firms, local government and law centres.
“Further, given CILEX members are more likely to come from groups traditionally underrepresented in the legal profession, the judgment threatens diversity in the law as well as restricting competition and access to justice.
“This hearing will be the first time that CILEX’s arguments relating to the conduct of litigation will be heard, alongside interventions from across the profession, including the Law Centres Network and Association of Personal Injury Lawyers. No matter what the outcome, this is a vital opportunity for those arguments to be aired and properly considered by the courts. We are hoping for a swift decision that provides certainty and clarity for both our members and the wider profession.”
So too the clients of law firms. If the Mazur decision stands then higher bills must follow.
SCOTTISH SCANDAL LEAVES ENGLISH CLIENTS HIGH AND DRY
Whatever happens in Mazur there are a number of law firm which have found themselves in acute difficulties in recent times with painful consequences for their clients. And the consequences rumble on for years.
Take the example of the collapse of Scottish law firm McClure Solicitors which operated both south and north of the border. (It is estimated that the firm had 88,000 clients in England and Wales). The firm’s failure happened almost five years ago and some former clients report that they’ve been unable to sell properties because McClure solicitors were named on the deeds.
The Legal Ombudsman is now ready to deal with the many outstanding complaints with the ombudsman scheme enabling clients to make a claim against the insurance policy of a closed firm. The Solicitor-General Sarah Sackman KC has advised former McClure clients to explore this route.
“The collapse of McClure Solicitors continues to reverberate across the UK, leaving thousands of families in legal limbo,” says Michelle Seddon, partner in the private client team at national law firm Clarke Willmott.
“McClure’s downfall stems from widespread issues with its family protection trusts. These were marketed as a means of safeguarding assets and reducing inheritance tax, but many were poorly drafted or legally ineffective. When McClure folded, around 20,000 trusts were left in limbo. Clients now face the emotional and financial strain of untangling their affairs, often without knowing where to turn. Clients are understandably distressed and some are discovering that properties placed in trust cannot be sold.”
The key words here, of course, are “Many were poorly drafted or legally ineffective.”
But why so?
The relationship, if any, with the Mazur case might be worth reflection.
SEPARATION BRISTOL-FASHION
Marriage break-ups are almost always sad but the law doesn’t have to make the trauma worse. In fact, many separating couples are trying to side-step the minefield that the law often entails. And it is notable that some lawyers are actively supporting this approach as demonstrated by the newly launched Bristol Family Law Solutions. This is a group made up of solicitors plus also mediators, financial neutrals, pension specialists, therapists and divorce coaches who have joined together to help people navigate a relationship breakdown. Collectively they reflect strong regional support for collaborative, constructive approaches to resolving family disputes.
Kicking off the new service was Barrister and Arbitrator Nicola Frost MCIArb who provided the launch event with an introduction to its aims and the role it hoped to play in encouraging alternative dispute resolution within family law. Also supportive was HHJ Stephanie Cope, the Designated Family Judge for Avon and Gloucester, who delivered a short address highlighting the value of collaborative working and mediation within the family justice system.
“It was fantastic to see such strong engagement from the South West professional community at our launch ,” commented Clare Webb who sits on the Bristol Family Law Solutions committee.
“Events like this underline the shared commitment across all complimentary professions to helping families resolve issues in a constructive, respectful way.
“We recognise that relationship breakdown is complex and difficult, and that access to a full team of expert advisors in legal, financial and emotional areas is essential to assist and support people through the process of separation and divorce. Launching the committee during Family Mediation Week felt particularly fitting, and I’m proud to be part of a group that champions collaboration and better outcomes for families at what can be a very challenging time.”
BEING BOLD ABOUT THE B LISTERS
Vetting your potential clients before taking them on is pretty standard but setting restrictive criteria based on moral, environmental or social judgements is, maybe, not quite so common. So London EC1-based and certified B Corp firm, Bellevue Law (an outfit attracting a lot of attention right now) is putting its principles before its purse in announcing a Sustainable and Responsible Legal Advice PLEDGE that it will not act for corporate clients in sectors defined by B Lab as “controversial” or “ineligible”. This includes those involved in fossil fuel production, gambling, weapons and defence, tobacco and prisons.
Each of us will have our own feelings about those particular sectors but disdaining, for example, defence or prisons might lead to some head-scratching. “We will always provide high-quality legal advice and act in clients’ best interests and in accordance with their instructions,” says firm founder Florence Broklesby. “However, we will also consider how clients might increase their positive social or environmental impact and reduce negative effects. Sustainable and responsible practices often align with clients’ long-term commercial and strategic interests.”
The firm’s Pledge also embodies Bellevue Law’s commitment to social impact. This includes offering discounted rates to charities and non-profits, as well as discounted fixed-fee employment products for purpose-driven businesses. (This includes fellow B Corps and climate-tech companies). The firm also has a digital-first approach to reduce travel and paper use.
“Our Sustainable and Responsible Legal Advice Pledge is about being transparent and intentional about the work we do, the clients we act for, and the role we believe responsible legal advisers should play in tackling climate and social challenges,” says Broklesby.
CONTRIBUTED ARTICLE OF THE WEEK
Judges and lawyers are ‘flying-blind’ when it comes to hindsight in costs law argues Francis Kendall
Last month, Surrey Police were prevented from recovering the full cost of a privately chartered jet that was used to extradite notorious TikTok influencer HSTikkyTokky on the basis that the use of the jet was not “necessary or proportionate”. While the case – and not to mention HSTikkyTokky himself – raised eyebrows, the decision exposed a deeper uncertainty about the concept of hindsight in costs assessments.
In theory, the courts are meant to resist judging spend with the benefit of knowing how the case turned out. This is stated plainly in Francis v Francis and Dickerson: a “proper” item is one that a “sensible solicitor” would have deemed reasonable “in the light of his then knowledge”, not what later became clear. That principle recognises that litigation and operational decisions involve uncertainty and time pressure.
The difficulty is that modern costs disputes are not driven only by “reasonableness” item by item. They are also driven by proportionality, and proportionality can invite a more outcome-shaped evaluation. That tension is easy to see in Kazakhstan Kagazy Plc & Ors v Zhunus & Ors, where the court emphasised that recoverable costs should reflect no more than the lowest amount that could reasonably have been expected to be spent in order to present the case proficiently.
Read strictly, that approach can feel close to second-guessing strategic choices after the event, especially when parties argue that steps were not “needed”.
For practitioners, the result is an unstable decision-making environment. Every stage of a matter involves spending choices with real consequences: how much to front-load, which experts to retain, whether to instruct specialist counsel, and whether to incur urgent costs to reduce risk. Those decisions are taken against incomplete facts and evolving instructions. If a costs judge’s later assessment slides from contemporaneous reasonableness into retrospective optimisation, almost any spend can be portrayed as excessive.
The HSTikkyTokky case illustrates this point. The police argued that chartering the jet was justified by risk considerations and the need to secure safe transport. The judge, however, was not satisfied that a private flight was necessary or proportionate on the material presented.
Whether or not one agrees with the outcome, the lesson for costs is stark, and can feel very unfair. Litigants can be criticised and punished for not choosing the cheaper alternative, even where their rationale for what they spent was reasonable and defensible at the time.
Clearer judicial guidance is clearly needed. Courts and practitioners need a consistent framework that explains how proportionality interacts with the rule against hindsight, and what evidence will show that a decision was reasonable when made. Without that, predictability in costs assessment will remain elusive, and confidence in spending decisions will continue to erode.
Francis Kendall is Director, Costs Lawyer and Joint head of Commercial at Kain Knight
LEGAL COMMENT OF THE WEEK
TOPIC: This week’s ruling in the Supreme Court that children injured by medical negligence should be able to claim damages for ‘lost years’
COMMENT BY: Caroline Klage, Partner in the Brain Injury Team, Bolt Burdon Kemp
“Thanks to yesterday’s decision, now children, as well as adult claimants can claim for the lost years caused by negligence, squarely putting both in the position they would have been in but for the negligence. This is completely in keeping with the principle of restitution and puts an end to the rather illogical and unfair distinction that has prevailed between children and adults in this area.
Critics may argue that the system is flawed and unfair because, like future loss of earnings claims for catastrophically injured children, the “lost years” claim will be calculated on the basis of parents’ earnings and education and is “speculative”. The unfairness point is rather an issue that society needs to address, as the principle of restitution is fundamentally a fair one. A child’s loss of earnings claim will by its very nature be speculative if injuries are sustained at such an early stage of life. That is not the child’s fault and indeed, denying them a lost years claim entirely only adds insult to injury particularly given the complex and evolving needs that arise from injuries caused by negligence at birth and their far reaching impact. The Court considered this and held that calculating the lost years claim is no more difficult than calculating the loss of earnings claim in the years of survival ie there is no additional challenge associated in calculating the lost years claim.
Of course, this will mean that compensation award levels will rise. But claims only happen because mistakes are made, often in the context of maternity care and when they happen, they can have profound and life-changing consequences for the children involved and their families. The focus must be on reducing instances of avoidable harm by learning from mistakes to ensure they are not repeated and that standards of care and patient safety improve, whilst fairly compensating those who have suffered through no fault of their own to ensure their complex and lifelong needs can be met.”
COMMENT BY: Jodi Newton, head of birth and paediatric negligence, Osbornes Law
“This is a monumental ruling for the many children and young people left with serious and life-changing injuries as a result of medical negligence.
“The Supreme Court has today corrected a legal anomaly that has existed for nearly 40 years. ‘Lost years’ damages are a special class of damages for claimants whose injuries are likely to reduce their life expectancy. Previously, the law had allowed for adults, but not children, to claim for this type of loss. This meant that any claimant who was below normal working age at the date of injury was denied the opportunity to claim fully for their earnings loss. I am delighted that the courts have now rectified this disparity between adult and child claimants.
“Specialist lawyers, acting for families of children with brain injuries suffered at birth, have stood frustrated and aggrieved by the limitations created by the previous judgment on this issue. We are delighted that the Supreme Court has made this important finding and transformed the law on behalf of the vulnerable children and families we represent.”
COMMENT BY: Joe McManus, FOIL ( Forum of Insurance Lawyers) Catastrophic Claims Sector Focus Team
“The Supreme Court’s decision today by a 4 to 1 majority represents a significant expansion of recoverable damages in catastrophic injury cases involving children.
Extending ‘lost years’ claims to young children will make expensive claims even more so. The decision will push up damages reserves for these types of claims and will have a substantial impact on the NHS given the number of high-value brain injury claims that are already progressing through the courts .
Any expansion of recoverable damages will need to be carefully managed to ensure awards are based on robust evidence and remain proportionate, particularly given that the cost of many of these claims is borne by a publicly funded healthcare system with finite resources.”
TOPIC: The proposed change to the law to order tech companies to remove non-consensual intimate images within 48 hours of them being reported
COMMENT BY: Hanna Basha,Dispute Resolution, Partner, Payne Hicks Beach
“Having acted for Georgia Harrison in her civil revenge pornography case, I have seen first-hand the devastating impact these violations have on victims. It is encouraging to see the government finally introducing firm deadlines for removal, but why 48 hours and not 24 or even 12? Every hour these images remain online compounds the harm.
“The government should also require social media companies to prominently display clear contact details. Too often victims cannot even find where to report abusive content. This is a welcome step, but meaningful protection requires faster takedowns and real accountability from platforms.”
TOPIC: The Financial Conduct Authority’s latest quarterly whistleblowing data for Q4 2025
COMMENT BY: Nabeel Osman, Partner, Spencer West LLP
“Serious misconduct typically manifests as control, governance, or culture failure rather than standalone fraud, so that is what employees observe and report through whistleblowing channels. The increasing willingness of whistleblowers to identify themselves suggests confidence in protection and regulatory follow-up. Where disclosures are said to ‘inform’ the FCA’s approach, this generally means the intelligence provided guides risk assessment and supervision, even if the enforcement threshold is not met.”
TOPIC: The case of Cengiz Arif who faked a will and a wedding in a failed attempt to secure a £500k inheritance
COMMENT BY:Kate Harris, Partner in the private wealth disputes team, Birketts LLP
“This judgment underscores the critical importance of robust will‑making processes and the vigilance of the courts in protecting vulnerable individuals and their families. Cases involving alleged forged wills or fabricated marriage certificates are thankfully rare, but when they arise, they can cause immense emotional strain for grieving relatives. In this case, the court’s findings of deliberate forgery highlight how far some individuals may go in an attempt to redirect an estate for their own benefit.
This case is also a reminder that clear, professionally drafted wills, coupled with reliable records of relationship status and estate planning intentions, are essential safeguards. Where disputes do surface, early specialist advice can be crucial in preserving assets, protecting beneficiaries, and securing swift court intervention where necessary. Ultimately, this case is a salient reminder that the law provides strong remedies against fraud, and that the courts will act decisively to uphold the wishes of the deceased and protect the interests of vulnerable beneficiaries.”
TOPIC: The Court of Appeal’s (CoA) ruling in favour of the Information Commissioner’s Office in its appeal against the decision of the Upper Tribunal on DSG Retail Limited (DSG).
COMMENT BY: Binnie Goh, ICO General Counsel
“Today’s judgment is a significant victory, bringing much-needed clarity for people affected by cyber attacks as well as industry.
“We welcome the CoA’s confirmation that organisations must protect all personal data they process, regardless of how it might be used or exploited by hackers. This recognises that even if hackers can’t identify people individually from stolen datasets, cyber attacks can and do still cause real harm.
“With the rising threat of cyber crime, this decision strengthens our ability to take robust action in the future and sends a clear message to all organisations: you have a protective duty to safeguard the personal data you hold.”
While this case is rooted in the Data Protection Act 1998, the legal interpretation of the security duty by the CoA offers an important guide to similar requirements in the current data protection regime.
Now the point of law has been clarified by the CoA, the case will return to the FTT at a later date to apply this interpretation to the facts of the DSG cyber attack.”
TOPIC: The updated guidance on tax advisers issued by HMRC
COMMENT BY: Sheila Kumar, chief executive of the Council for Licensed Conveyancers
“We are very disappointed that HMRC has not taken the opportunity to make a common-sense change to the regime to exclude conveyancers who are not permitted to give tax advice, but who make SDLT submissions and payments on behalf of clients.
“The chair of the CLC Dame Janet Paraskeva’s letter to the Chief Secretary to the Treasury set out the risks that will arise from this step, duplicating regulatory oversight of an area of work where there is no current problem and allowing bad actors to present themselves as registered with HMRC to give tax advice when they have no permission to give that advice to clients.
“This runs counter to efforts to improve the home buying and selling process to deliver a better service to consumers and support growth in the economy.”
LEGAL SECTOR APPOINTMENTS OF THE WEEK
BELLEVUE LAW
Sally Hall has been appointed as a Senior Consultant at workplace law and commercial disputes specialist Bellevue Law. With extensive experience as an in-house lawyer Hall has worked across a range of industries, advising on UK and European data privacy matters including GDPR compliance, data breaches, regulatory challenges, supplier agreements, DPAs, and the implementation of policies and training.
With a Masters in Advanced Legal Practice and an ISEB certification in data protection Hall is equipped to advise clients on both proactive and reactive privacy challenges. Her previous role was as General Counsel for an international organisation, where she led a legal and privacy team that was shortlisted as finalists in the 2025 Picasso Privacy Awards.
Commenting on the appointment, Bellevue Law’s founder Florence Brocklesby said, “Sally’s depth of in-house experience, combined with her specialist knowledge of data protection and privacy, makes her an excellent addition to Bellevue Law, and her commercial mindset and thoughtful approach align strongly with our values. With data protection issues continuing to grow in importance for employers, Sally will be a real asset to our clients navigating increasingly complex privacy and regulatory landscapes.”
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
Dr. Carsten Fischer is joining Bernstein Litowitz Berger & Grossmann LLP, the global investor rights law firm, as a Senior Advisor. Currently based in Liechtenstein, Dr. Fischer will advise BLB&G clients in Switzerland and Liechtenstein with a view to extending the firm’s European reach.
With more than two decades of experience in investment funds, asset management regulation, corporate governance, and capital markets law Fischer is acknowledged as a leading investment law practitioners in the German-speaking market, advising on the structuring and regulation of complex investment vehicles. Previouslya Partner at Dechert LLP in Frankfurt and Dewey & LeBoeuf LLP in Frankfurt Fischer is an establishedauthor and speaker. He is the co-editor of the Commentary on the German Capital Investment Code (Kapitalanlagegesetzbuch), published by C.H. Beck, regarded as one of the most authoritative references in German investment law.
“Carsten’s expertise and reputation make him a tremendous asset to our European clients and a complement to our esteemed team of European advisors serving clients throughout Europe,” said Jerry Silk, Senior Partner and member of BLB&G’s Executive Committee. “His arrival further elevates our commitment to delivering exceptional service and support in a key financial market.”
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