Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
11 September 2026
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK:
9/11 The Memories Return
The events of 11th September 2001 will never be forgotten by those alive at the time not just collectively but individually. As it happens I had been on the very top of the Twin Towers just a few months earlier with an American law firm which was entertaining a group of British legal journalists in New York. The view as we had drinks in the early evening was God-like. No wonder the Terrorists wanted to attack it.
On the day itself in September I had picked up the news like most Londoners mid-afternoon just before heading to Westminster for an annual reception in Parliament hosted by another law firm. The mood on arrival was chilling. Everyone was still perplexed. And the number of guests who had turned out was very small by comparison with usual attendance. Talk was dominated by the attack and as we stood on the riverside terrace there were some comments about what an obvious target it would be for Terrorists who wanted to do the same to the UK.
As we sit, maybe, on the verge of another cataclysmic event courtesy of AI the question of the rule of law looms large. Can laws protect us? Or do they just give an illusion of security.
The LegalDiarist
In this edition
+ LEGAL DIARY OF THE WEEK
Employment Appeals Queue To Get Even Longer?
Bottling Out?
Need a Hand?
Here! here! for the Herefords
+ CONTRIBUTED ARTICLE OF THE WEEK
What does the new EU ban on destroying unsold fashion means for businesses?
by Jonathan Armstrong
+ LEGAL COMMENT OF THE WEEK
on the Next Appeal, international child abduction, the ET backlog, ‘End of Life’ bill, tourism taxes, AI going rogue, JR for infrastructure, the future of the working class and Oasis.
+ APPOINTMENTS OF THE WEEK
Mayer Brown and KPMG UK/Swiss Group
LEGAL DIARY OF THE WEEK
Employment Appeals Queue To Get Even Longer?
With widespread alarm at the news that 70,000 cases are queuing up for attention at Employment Tribunals what are we to make of the fact that from the beginning of next month the time limit for raising most tribunal claims will double from three to six months?
According to Charlie Barnes, Head of Employment Legal Services at RSM UK , “As the window of opportunity to lodge a claim expands, an already stretched tribunal system will soon be put under unprecedented pressure.”
Figures from RSM’s Workforce Survey shows almost two thirds (65%) of employers think an increase in tribunal claims due to new unfair dismissal rules in the Employment Rights Act is either ‘somewhat likely’ (40%) or ‘very likely’ (25%). The survey also found one in ten (10%) employers believe AI will exhaust HR and management by generating more grievances and complaints.
“The abolition of tribunal fees in 2017 marked the start of a steady increase in employment tribunal claims,” explained Barnes. “With a significant spike in the last year, even before key changes from the Employment Rights Act come in, urgent action is needed to address this growing backlog. While there’s been some speculation tribunal fees could be reinstated to discourage baseless claims, this is unlikely for the foreseeable future, as they are currently considered a barrier to justice.”
Bottling Out?
It’s been a funny old week leaving those who cover legal affairs undecided about which is more worrying. Is it that there’s a one in ten chance that most of us will not be here to see in the end of the next decade thanks to malicious AI bots deciding to wipe out humanity. Or is it that the introdcution of a new DEPOSIT RETURN SCHEME (DRS) in a year’s time will introduce fundamental changes to how drinks are priced, labelled and sold – and look likely to create chaos and confusion on the High Street.
With so much else happening right now the general public would be forgiven for not being up to speed on the DRS but come next Autumn it will be on all our minds. Under the scheme retailers will be expected to charge a deposit at point of sale, accept returns and refund deposits to consumers.
That’s why affected businesses need to start preparing now for the introduction of the DRS.
“For manufacturers, importers and retailers, the schemes bring new regulatory obligations and operational costs that will require early planning,” said Declan Goodwin, a commercial partner at Clarke Willmott. “Differing schemes across Wales and the rest of the UK, as well as the EU, will add further complexity,” he adds.
The ramifications are almost as overwhelming as an AI ram raid. Pricing structures, invoicing systems, VAT treatment and supply-chain contracts will all need to be reviewed and probably updated.
“Deposit Return Schemes are not just an environmental issue. They affect margins, cash flow, packaging design, logistics, IT systems, VAT liability and contractual relationships throughout the supply chain,” warns Goodwin.
So best to regard it as a dry-run for AI Armageddon. If we can survive this we can survive anything.
Need a Hand?
As if anyone needed reminding, Consilio’s 2026 Global Survey Report has found that understanding, selecting, and deploying new legal technology has overtaken ‘work volume’ as the industry’s biggest challenge – and that is according to according to 54% of surveyed legal professionals. “As legal teams face growing pressure to deploy AI effectively, many struggle to translate technology investments into operational workflows.,” comments the firm.
Faced by the imperative of keeping up with their rivals as well as the speed of innovation in the technology itself and then grappling with effective implementation means that change management has become as important as the technology itself.
“Legal teams aren’t short on AI options; they’re short on the capacity to make those options work inside their own workflows, governance, and data., “ said Meredith Kildow, President, Consilio.the legal services and technology company, “Too often that has meant choosing between adopting quickly and adopting well.”
In what might be something of a game-changer Consilio, and Legora, the agentic operating system for legal work, have just announced a formal partnership with a view to helping law firms and corporate legal departments adopt and operationalise legal AI at scale. Well, someone has to do it.
Here! here! for the Herefords
A delicate row has broken out in the normally robust agricultural field. When is a Hereford not a ‘real’ Hereford – THAT is the question – Or maybe it is vice-versa. Anyway it is a debate that often dominates the Legal Diarist’s walks across the (once more, thanks to the rain) green and pleasant fields of central Hampshire. “Is it or isn’t it, we ask ourselves” pointing towards the moochers on the other side of the fence.
So (for the enlightenment of townies) the issue focuses on Defra’s decision to treat Traditional Herefords as a sub-population of the wider Hereford breed, rather than a separate native breed in their own right.
The debate has now become the subject of a judicial review application brought by Australian cattle breeder Peter Hall who takes this matter of breed classification, genetics and conservation very seriously.
But, that said, so do the people on the other side of the argument. The Hereford Cattle Society maintains that Traditional Herefords form an important part of the wider Hereford breed and should continue to be recognised as such.
Getting its hands dirty on the side of the Cattle Society is Laura Mackain-Bremner, a partner at Clarke Willmott in Taunton. “The Hereford breed has a long and proud history, and the Society takes its responsibility for maintaining the integrity of the Herd Book extremely seriously,” she says.
“This case is not simply about genetics; it is also about breed governance, conservation policy and the role of recognised breed societies.”
So, heavy matters. The world is now awaiting to hear whether or not it will go to JR. So will it be ‘Moos’ or ‘Boos’ when the decision is announced?
CONTRIBUTED ARTICLE OF THE WEEK
What does the new EU ban on destroying unsold fashion means for businesses?
by Jonathan Armstrong
For years, “reuse, repair and recycle” has been the language of the circular economy, but from this summer, for many fashion businesses selling into the EU, it is also the language of compliance.
As of 19 July 2026, large companies selling clothing, footwear and accessories in the EU can no longer routinely destroy unsold products. The ban, introduced under Article 25 of the Ecodesign for Sustainable Products Regulation (ESPR), is designed to give legal force to the principles of “reuse, repair and recycle”. It will extend to medium-sized companies from 2030.
The regulation reflects the growing concern about increased fashion waste. The European Environment Agency *estimates that between 4% and 9% of textile products placed on the European market are destroyed before use. Online retail is a particular contributor, with around one in five garments purchased online returned, and around a third of returned clothing subsequently destroyed.
Under the new rules, “destruction” is interpreted broadly. It includes intentional damage, disposal, discarding and recycling. However, preparing products for reuse or refurbishment does not amount to destruction.
There are exceptions. Products may still be destroyed in certain circumstances, including where they are unsafe or pose a health risk. Businesses relying on an exemption will nevertheless need to ensure they have appropriate processes and records in place to demonstrate why destruction was permitted.
The ESPR does not prescribe a single EU-wide fine for non-compliance. Instead, Member States must introduce penalties that are effective, proportionate and dissuasive.
The implications extend beyond EU-based retailers. The prohibition applies in Northern Ireland under the Windsor Framework, while UK businesses placing relevant products on the EU market may also fall within scope.
There is currently no equivalent UK-wide statutory ban. However, the direction of travel is clear, with the UK Government’s Circular Economy Taskforce expected to set out further plans for a Circular Economy Growth Plan.
Businesses selling into the EU or Northern Ireland should now review their practices. Key steps include identifying which products are in scope, training relevant employees, reviewing record-keeping procedures and ensuring exemptions are properly documented. Companies should also look more closely at the causes of unsold stock
The ban is another indication fashion businesses will increasingly be expected to take responsibility for products beyond the point of sale. For retailers, manufacturers and brands, unsold stock is no longer simply a commercial problem, but a legal and compliance issue.
Jonathan Armstrong is a Partner at Punter Southall Law
LEGAL COMMENT OF THE WEEK
TOPIC: Next wins its appeal to overturn equal pay ruling
COMMENT BY: Laura Tracey, Employment Partner, Freeths
“This is one of the most significant equal pay decisions since the wave of retail and distribution claims began and a victory for employers defending large-scale retail equal pay litigation.
“The judgment draws an important distinction between paying one group less and paying another group more for genuine business reasons. The EAT accepted that higher warehouse pay driven by recruitment and retention pressures did amount to a legitimate aim, even where that resulted in a pay disparity with a predominantly female retail workforce. The EAT criticised an earlier Employment Tribunal decision to focus on cost saving only, instead suggesting the Tribunal should have looked at Next’s aims based on the whole picture – which also included recruitment and retention to maintain the warehouse service.
“For employers defending equal pay claims, the decision provides a clearer route to justifying pay differences based on labour market conditions. However, it is not a blanket endorsement of ‘market forces’ as a defence. Employers will still need robust evidence showing a real business need for the higher rates of pay and why those reasons do not apply equally across the workforce.
“The decision will be closely scrutinised by retailers, supermarkets and other large employers facing equal pay litigation who have been watching this case develop with interest. While claimants can still rely on workforce statistics to establish group disadvantage, the EAT has signalled that tribunals must properly assess all relevant facts including the commercial realities of recruitment and retention when considering justification.”
TOPIC: The ruling by the Supreme Court that a child’s wishes should be considered in international child abduction cases
COMMENT BY: Katie O’Callaghan, Partner, Family Team, Boodle Hatfield
“The Supreme Court’s decision clarifies that a child’s views are relevant to all aspects of a parent’s defence to an allegation of child abduction and whether that defence has been established, namely that there is a grave risk of physical or psychological harm, or the child being placed in an intolerable situation if returned. The court determined clearly that the lower court was wrong to exclude these views given the longstanding principle that children should be heard. However, as in other proceedings concerning children, those views are not determinative. Hearing a child’s wishes is not the same as giving effect to their wishes. The weight given to a child’s wishes remains a matter for the court, taking into account the child’s age, maturity and the nature of the risk in question. The Supreme Court agreed with the lower court that the authenticity of the child’s views are also highly relevant and where a parent’s potential manipulation of those views cannot be resolved on the evidence, it may be appropriate to place limited or no weight on the child’s views as a result. The need for children’s views to be obtained through independent means is therefore crucial.
In this case, despite the child being 14 years old, an age at which courts will often attach significant weight to a child’s expressed wishes, the court refused to order the child’s return to the United States. The child’s stated wish to return did not address the separate risk arising from the impact that a return would have on the mother’s mental health. The Supreme Court determined that even if there was a small risk of the mother’s suicide, the gravity of the consequence of suicide is such that the defence to a return to the US was established.
The judgment highlights the careful balancing exercise required in international child abduction cases, where the consequences are profound, often determining on which side of the world a child will live. Courts must weigh a child’s views against wider welfare and risk considerations. Where a distinct grave risk is identified, a child’s general desire to return will carry limited weight if that view does not engage with thatrisk. The default position in such circumstances is not to return. This is likely to be of significant relevance to future cases involving parental mental health.”
TOPIC: The Scale of the Employment Tribunal Backlog
COMMENT BY: James Townsend, Employment Partner, Payne Hicks Beach
“The message for business from today’s figures is stark. Employment litigation is on the rise and employers cannot afford to be complacent, bearing in mind further looming changes under the Employment Rights Act 2025 is designed to further strengthen workers’ hands, if and when disputes arise. With single employment claims up 28% year on year and the outstanding caseload up 51%, businesses are facing a materially greater risk of costly and time consuming disputes.”
COMMENT BY: Chloe Grant, Senior Associate Workplace and Disputes, Bellevue Law
“The latest Employment Tribunal statistics show a system buckling under the strain. Single claim receipts rose by 28% while disposals fell by 6%, pushing the single claim open caseload to a record 70,000 cases. This means more individual claims are waiting to be heard than ever before, with more than half a million claims now sitting in the Employment Tribunal system overall, leaving employers and employees alike facing longer waits, higher costs and prolonged uncertainty.
“These figures arrive against the backdrop of some of the most significant employment law reforms in a generation. With limitation periods for most claims set to double from October 2026, and eligibility to bring unfair dismissal claims set to expand significantly from January 2027, Tribunals face the prospect of even greater demand in the years ahead. Nor are legislative changes the only factor at play. Growing awareness of employment rights, combined with AI-powered tools and easier access to legal information, mean it is easier than ever for individuals to identify and pursue potential claims. Taken together, these developments risk creating a perfect storm for a system that is already struggling to keep pace.
“More robust Tribunal case management, firmer ACAS intervention, and/or greater use of alternative dispute resolution may all help to resolve disputes sooner and reduce the number of cases for judges to determine – but such options would still require meaningful investment from the government, which doesn’t appear to be on the agenda. Final hearings are already routinely being listed two or even three years after a claim is issued, meaning justice delayed risks becoming justice denied. Without a major injection of additional resources, these figures raise serious questions about how the system will cope with what lies ahead.”
TOPIC: The Terminally Ill Adults (End of Life) Bill
COMMENT BY: Alexa Payet, Partner, Stevens & Bolton
“Amid intense debate on the Terminally Ill Adults (End of Life) Bill’s social and political implications, it is crucial that politicians and lawmakers do not lose sight of the actual detail of the Bill’s legal powers and how these will practically manifest in real life scenarios. It is the Bill’s legal framework which will ultimately determine who it can impact and how, and the reality is that the Bill’s reach is very narrow. Even if the Bill passes, something which would undeniably be a landmark moment, significant numbers of people such as those with neurodegenerative conditions will not be caught in its remit, and will still be left grappling with the same issues and needing to seek assistance abroad. In cases where an individual ending their own life is permitted by the Bill, there will remain questions around how protected or exposed anyone else who assists them would be. Regardless of which side one is on, it is crucial that the escalating debates are always underpinned by clarity on the legal pillars of the Bill, as these are key to understanding the true extent and limits of its impact in all the many intricate circumstances.”
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TOPIC: The Government’s plan to give mayors the power to introduce tourism taxes in their cities
COMMENT BY: Penny Paddle, Partner, Spencer West LLP
“The recent announcement by Andy Burnham, which enables local leaders to introduce an Overnight Visitor Levy has reignited the significant debate over how popular tourist destinations should fund their public services.
Supporters argue that the levy can ease the financial strain on seasonal hotspots providing additional funding to areas such as local infrastructure, waste management, and emergency services, which are impacted by the burden placed on them by a seasonal influx of tourists and are currently subsidized by local taxpayers or are simply unable to keep up with demand. Allowing tourist hotspots to collect a small nightly fee ensures that visitors contribute directly to the upkeep of the places they enjoy, mirroring successful models already used across Europe.
However, critics express deep concern over the timing and impact of a “holiday tax,” especially on domestic travellers. Opponents argue it unfairly penalizes British families choosing staycations and could hurt the hospitality sector by driving tourists toward cheaper, tax-free destinations. There are also fears that the administrative burden of collecting the levy will fall heavily on struggling local B&Bs and independent accommodation providers.
With increasing global instability and more families choosing to staycation, one thing is clear, the impact of ever increasing tourist numbers on local communities cannot be ignored. It remains an issue which continues to divide communities and only time will tell whether or not the critics fears will be realised.”
TOPIC: AI Goes Rogue
COMMENT BY: Dr. Ilia Kolochenko, Lawyer and founder, ImmuniWeb,
“These “incidents” [at Anthropic] may constitute a criminal offense in many jurisdictions on both sides of the Atlantic and cause serious legal ramifications for AI companies behind. While in some countries, for example in the United States, criminal prosecution almost entirely depends on the prosecutorial discretion to bring (or not bring) criminal charges, in other countries – including quite some European countries – there is no such leeway.
Once a victim, hacked by AI agents, files a criminal complaint, the public prosecutor’s office must commence the investigation and, in case of a plausibility that an offense was committed, must indict the offender. AI vendors who try to leverage those incidents for marketing and fundraising purposes, are playing with fire. While intent to commit crime is an indispensable ingredient to be found guilty in court, quite some laws provide for a lesser standard of intent including recklessness or even negligence.”
TOPIC: The Government’s plans to extend its reforms of judicial review from energy projects to all major infrastructure programmes in order to stop ‘vexatious litigation’
Comment by: Paolo Caldato, Dispute Resolution Partner, Spencer West LLP
“The Chancellor’s plan to shield Critical National Importance projects from standard judicial reviews is a welcome step for national resilience. In practice, however, it will not stop ‘lawfare’; it will simply force it to evolve.
This proposal is caught between two fundamental, contradictory tensions. Constitutionally, bypassing standard judicial oversight risks eroding democratic accountability and executive checks and balances. Practically, leaving a human rights safeguard opens an obvious loophole. Because the UK remains a signatory to the ECHR, legal challengers will simply re-shape their claims around Article 8 rights.
The real victory for the Treasury won’t be stopping legal challenges entirely, but compressing the calendar. By forcing these inevitable human rights battles into a hyper-accelerated court timetable, the government may successfully prevent legal actions from causing the multi-year construction delays that have historically paralysed British infrastructure.
It remains to be seen, of course, whether these proposals will survive the inevitable backlash that the Chancellor will face from backbench Labour MPs.”
TOPIC: The Government’s intention to establish a new unit within Government to improve outcomes for the ‘working class’
COMMENT BY: Michael Michaeloudis, partner and head of employment, Spector Constant & Williams
“This is a long overdue and welcome introduction. It cannot be correct in a society that strives for meritocracy, equality and fairness, to have a person’s life chances and success determined at birth. Two babies can be born on the same day, in the same hospital ward and one returns to a mansion and the other to a council flat. We know the latter will be significantly disadvantaged and has to overcome more obstacles in a society that is geared towards maintaining the status quo. This has to change.”
TOPIC: Concerns at pop group Oasis over the auction of a rare archive of unheard recordings
COMMENT BY: Ben Gisbey, Partner at Simkins LLP
“Oasis may be able to prevent a buyer from commercially exploiting the recordings without their consent by exercising their performers’ rights. However, it would be shortsighted to view this simply as a sale of memorabilia.
“The band may wish to exploit the recordings themselves in future, leaving them with a difficult decision: do they buy the archive themselves now, or do they risk any buyer demanding a substantial fee for access to the recordings down the line?”
LEGAL SECTOR APPOINTMENTS OF THE WEEK
MAYER BROWN
Pablo Bentes (along with his team) has joined Mayer Brown as a parner in its International Trade practice in Brussels. Previously with Baker McKenzie, where he led the firm’s global international economic disputes resolution practice Bentes has many years of experience representing sovereign states, governments, private clients and trade associations on trade negotiations, investigations, and disputes between states.
“Pablo’s sovereign-state practice, combined with Mayer Brown’s disputes platform, strengthens our ability to help clients navigate high-stakes conflicts between states,” said Nikolay Mizulin, Partner and Co-Leader of International Trade. “His experience before World Trade Organisation (WTO) panels and Free Trade Agreement (FTA) tribunals complements our work in trade disputes, trade remedies, national security and investor-State arbitration. We are delighted to welcome him to Mayer Brown.”
Commenting on his appointment Bentes said, “Mayer Brown’s global platform and deep expertise in arbitration and government advisory make it a natural home for my practice. The firm’s reach and client relationships will help me build on my work for governments and businesses as demand for practical solutions to complex trade conflicts grows.”
KPMG UK/Swiss Group
Alan Turner (left) has been appointed new Group Head of Tax and Legal Services KPMG UK/Swiss Group. Currently the Chief Operating Officer of Tax and Legal services, he will take over from Vicki Heard who has been appointed to be the first female Group Managing Partner,
Turner has extensive experience from over 25 years of advising clients on a wide range of tax matters. For the past two and a half years, he has served as Tax and Legal’s Chief Operating Officer, sitting on the Group’s Management Committee, while continuing to lead major client relationships. He has held several senior leadership roles across the firm, including Regional Head of Tax in Scotland, Head of the Tax & Legal Services practice for KPMG’s Corporates business in the UK and UK-US Corridor Lead, spending three years in New York. He will join the Group’s Executive Committee in his new role.
“Alan has played a significant part in Tax and Legal Services’ growth journey,” said Jon Holt, Chief Executive of UK/Swiss Group and UK Senior Partner KPMG. “He understands how to bring the best of KPMG to serve our clients in today’s complex and ever-changing landscape.”
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