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

10 January 2024

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: The Return of the Wild West?

Images of the terrible fire destruction which ravaged Los Angles this week will stay with us for a long time. But alongside that catastrophe there have been the Greenland and Canadian declarations by the President-in-waiting. Their coincidence with the memorial service for former President Carter seemed hugely symbolic.

From a purely legal perspective, however, maybe it is the announcement by Mark Zuckerberg that Meta is removing its third-party fact checking, with the inevitable result that “We’re going to catch less bad stuff” which will make this week profoundly notable.

According to Iona Silverman, partner at Freeths,”This [move by Meta] appears to fly in the face of the Online Safety Act which requires tech companies to prevent UK users, particularly children, from accessing harmful content. The Online Safety Act was passed with the best of intentions: to protect people. However, it seems doomed to fail unless the regulators can move more quickly.”

Taming the ‘Wild West’ with law was one of the US Government’s greatest historic achievements. Now, however, its seems that the lawless West is returning with a vengeance.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

Barbara Mills KC o’er Leaps the Bar

Mishcon de Reya Leaves the Investigation to Us

‘Til Pre-Nup do us part’

Taxing Times

+ CONTRIBUTED ARTICLE OF THE WEEK

What tools do the English Courts have to secure jurisdiction over foreign parties? asks Richard Coopey

Teachers’ divorces held in detention because of delays at the Teachers’ Pension Scheme , explains Matthew Taylor

+ LEGAL COMMENT OF THE WEEK

on the Meta controversy, action on abusive ‘deepfakes’, the McDonald’s case, investigating grooming gangs and divorce via mediation

+ APPOINTMENTS OF THE WEEK

Lawrence Stephens and Collyer Bristow

LEGAL DIARY OF THE WEEK

Barbara Mills KC o’er Leaps the Bar

“This is the first time in the Bar Council’s 131-year history that all three of its office holders are women,” declared Barbara Mills KC (left), the Joint Head of Chambers at 4PB, as she stood alongside Kirsty Brimelow KC, the Bar Council Vice Chair, and Lucinda Orr, the Bar Council Treasurer while enjoying her accolades as the newly elected Chair of the Bar Council for 2025. The significance though is not only that she is a woman but that she is also the first family law barrister in 35 years to chair the Bar.

Well-known as an international family mediator and arbitrator she has developed a thriving mediation and arbitration practice, receiving referrals from High Court judges, KCs, and professional colleagues. She also serves as a Deputy High Court Judge and has been a Recorder on the South Eastern Circuit for over a decade. “Formy personal priorities for the year, I wish to make progress on three broad areas,” she explained. “I intend to raise the profile of family law and to help the Government in its mission to halve violence against women and girls. Secondly, to pass on the benefits of respecting our wellbeing enough to make it a skill and a core part of effective practice management as a barrister. Finally, I want to ensure we make further strides in our pursuit of equality, diversity and inclusion.”

“Barbara takes up the leadership of the Bar at a crucial time,” commented Charles Hale KC, Joint Head of 4PB. “With significant pressures on  barristers and a justice system which all acknowledge is creaking at the seams, the need for strong, considered leadership could not be more crucial.  Barbara will bring her unique qualities to the role of chair; a relentless work ethic combined with real empathy, steal and an innate understanding of acting in the public interest.

Mishcon de Reya Leaves the Investigation to Us

‘It’s business but it’s personal’ is the slogan at Mishcon de Reya and nothing could be truer, perhaps, when it come to law firms being brought in to undertake an investigation into a company or institution.

Buoyed up by its extensive experience Mishcon will be launching next Wednesday (15^th January) a series of digital sessions under the title ‘How to Run a Workplace Investigation’ directed at exploring best practice by lawyers when they have the responsibility for opening up an organisation to find out what’s been going on.

As the firm explains, the series will focus on a ‘rapidly evolving legal and regulatory landscape for investigations’, with future sessions to include: 

• Whistleblowing & Investigations 
• Supply Chain Risks 
• Dawn Raids
• Financial Crime Compliance
• Data Theft, Team Moves & Other Contract Breaches
• Health & Safety Investigations

Employment lawyer Louise Penny and Christopher Gibben from the firm’s crisis and investigation team will lead the sessions which will aim to offering insights and practical guidance on this highly sensitive area. Dealing with the media, handling allegations and how to respond to a ‘dawn raid’ will all be covered. Sounds as if it might be quite useful.

To register go to: https://www.mishcon.com/news/events/current/how-to-run-a-workplace-investigation

“’Til Pre-Nup Do Us Part”

Following on from our report last week of the annual ‘festival of divorce’ which accompanies every New Year it was striking that this morning Vandana Chitroda, a Partner and Head of Family Law at Broadfield Law, has put the boot on the other foot. His take is that “January is more about celebrating engagements with couples putting their minds to prenuptial agreements for their forthcoming weddings.”

The firm reports that in the first few days of 2025, it has seen a 50% increase in enquiries regarding prenuptial agreements as new couples begin to prepare for married life following an increasing recognition that assets brought to a marriage need protection – ‘Often encouraged by family members’, adds Chitroda.

 “Pre-nuptial agreements have for quite some time been considered important when younger couples get married and look to protect assets or a future inheritance. They are considered vital for those getting married for the second, third and even fourth time.

 “The concerns that may have surrounded prenups as ‘unromantic’ or making marriage ‘transactional’ are long gone. Today they are seen much in the same way as a Will – a sensible and practical financial planning tool that recognises the contributions each brings to the relationship.

 “January is about new beginnings. For some that will mean separation and divorce, but just as 19 million people tuned in on Christmas Day to watch Smithy (finally) marry Nessa in the very last episode of Gavin and Stacey, so too will many also choose to start the new year with engagement and marriage. So move over ‘Divorce Day’. It’s time to celebrate January’s engagements and wedding plans – just don’t forget the prenup.”

Taxing Times

As the state of the economy falters and the Government’s budget plans look increasingly perilous the urgency of collecting taxes in full will intensify. That’s why HMRC plans to recruit 5,000 more tax officials over the next year, with a portion of its funding ‘ring-fenced’ to target strategically important criminal cases and ensure a strong deterrent against tax evasion.

As a result says Hamraj Kang,(left) founder and Senior Partner at KANGS Solicitors, the intensity of the government’s campaign against tax avoidance will see more businesses than ever facing scrutiny by HMRC – and potentially civil and criminal investigations. Already 200 new compliance officers have started work with the aim of ensuring that individuals and businesses are paying the correct amount of tax at the right time.

“Endeavouring to narrow what is quite a large hole in the country’s finances is a tall order and will require substantial resources to carry out. Businesses and individuals may find themselves facing enquiries and investigations and should therefore inform themselves on what they may face and how to deal with it,” said Kang. Wise words.

CONTRIBUTED ARTICLES OF THE WEEK

What tools do the English Courts have to secure jurisdiction over foreign parties? asks Richard Coopey

The English High Court has seen a number of recent cases arising out of, or effected by, the Russian invasion of Ukraine in 2022.

In particular, there have been a number of procedural jurisdictional battles, specifically those which have been prompted by the passing of Russian Federal Law No. 171-FZ, the so-called “Lugovoy Law” (now Article 248 of the Arbitrazh Procedure Code). This law gives the Russian Arbitrazh courts exclusive jurisdiction over disputes which involve both Russian citizens and legal entities subject to foreign sanctions and disputes which arise from foreign sanctions imposed on Russian citizens or legal entities.

Unsurprisingly, this legislation has led to a rise in entities who have Russian counterparties under contracts with English court jurisdiction provisions seeking to use the tools of the English courts to hold Russian parties to their contractual agreed bargain.

The English courts do have an array of judicial tools open to them to ensure that the parties’ bargain as to the jurisdiction of their disputes is respected, and have indicated that it is at least feasible that events arising out of the invasion of Ukraine do reach the level of exceptionality needed for those tools to be appropriate.

Anti-suit injunctions, the well-used tools of the English court commonly used to restrain breaches of jurisdiction clauses contained in commercial contracts, have often been granted in response to Russian parties making use of Article 248. In simple terms, where a contract contains provisions which confer exclusive jurisdiction on the English courts, the English courts are able to grant injunctive relief restraining the prosecution of foreign court proceedings in breach of contract.

Whilst its more familiar cousin the anti-suit injunction restrains a party from bringing proceedings in another jurisdiction or forum, the anti-enforcement injunction is focussed on what happens should such proceedings be concluded and restrains their enforcement within England and Wales. Broadly such an order is appropriate in circumstances where there is a concern that an anti-suit injunction may not be complied with by the relevant party or may be ignored by the foreign Court.

The English Courts continue to make use of these tools on a case-by-case basis, applying long established legal principles to the challenging factual situations that come before them in light of the invasion of Ukraine and the significant impact that has had on trade with Russia, much of which was conducted through contractual arrangements using English law and/or with English jurisdiction.

Whilst recent cases have been driven by events in Ukraine, other parties to contracts with English Court jurisdiction clauses should be mindful that the English courts do have tools to assist them in ensuring that disputes are resolved in the proper forum, and should take English legal advice.

Richard Coopey is a Partner at Grosvenor Law

Teachers’ divorces held in detention because of delays at the Teachers’ Pension Scheme, explains Matthew Taylor

Recently the BBC has reported on the position of a number of teachers who are involved in divorce proceedings and who have had to wait many months for their Cash Equivalent Transfer Valuations (CETV). In fact, a Freedom of Information request revealed that nearly 2000 teachers were waiting for their details from the Teachers’ Pension Scheme at the beginning of December 2024.

Pensions valuations are a crucial part of resolving finances on divorce and this is especially so for professionals such as teachers, NHS staff, the armed forces, and others with a defined benefit pension. Without having a CETV, parties are unable to negotiate how pensions should be divided on divorce or whether a spouse should receive a lower share of another asset such as the family home in exchange for retaining their pension in full. Without having a CETV, there cannot be a full understanding of what is in the matrimonial pot to be divided fairly.

The acute delays that have left some divorcees awaiting their CETV for more than a year stem from a Court of Appeal judgment that found that government reforms to public sector pensions in 2014 and 2015 had discriminated against some scheme members. This resulted in a revaluation of public sector schemes through what is known as the “McCloud remedy” so named after one of the claimants in that judgement. This revaluation process has been hugely complicated and has taken a long time to ensure that the different public sector schemes have all applied the remedy in the same way. While many of the schemes are now operating business as usual, the Teachers Pension scheme still has a backlog which, thankfully, is due to be cleared by the end of February 2025.

Pensions are a crucial but often overlooked element of divorce. Less than 1/3 of financial settlements include a pension sharing order, according to 2024 data from the Institute and Faculty of Actuaries (IFoA) and Scottish Widows. 

Delays to getting a CETV could lead to parties finalising their financial settlement either without pensions, or legally dissolving their marriage without a financial consent order in place at all. This leaves those with defined benefit schemes open to claims down the line or with non-pension holding spouses walking away with an unfair outcome. At best, it amplifies the tension in an emotional and legally pressurised time, as parties are unable to move on with their lives due to the delays caused by an administrative issue.

Matthew Taylor is a Partner at Stowe Family Law

LEGAL COMMENT OF THE WEEK

TOPIC: Mark Zuckerberg’s announcement that Meta is removing its third-party fact checking, and changing to a community notes style model (like X).

COMMENT BY: Mark Jones, Partner at Payne Hicks Beach.

“We’re going to catch less bad stuff” says Mark Zuckerberg as he announces Meta is going to change how it filters content.

“Meta is to adopt a crowd-sourced approach to fact-checking – where other users add caveats or context to posts. Other users will now decide whether posts are potentially misleading and need more context, instead of external fact-checkers.

“This decision re-ignites the debate of free speech versus moderation of potentially harmful content. 

“Is delegating moderation of content to other users the best way of moderating content and creating a safe online space? Surely it simply increases the amount of misinformation and disinformation online. Delegating fact-checking to other users, who may not know the truth behind a story or post, increases the risks of misleading, harmful and just plain wrong content being available online.

“For now, Meta has no plans to end fact-checking in the EU. But is it only a matter of time before they seek to?”

COMMENT BY: Iona Silverman, partner, Freeths

“The justification for the removal of fact checkers seems to remove any bias or inhibition of free speech. However, Mark Zukerberg does admit that that changes to the way Meta filters content will mean “we’re going to catch less bad stuff”. This appears to fly in the face of the Online Safety Act which requires tech companies to prevent UK users, particularly children, from accessing harmful content. Ofcom has published draft guidance on how to protect children and will require social media platforms to risk assess for harms to children from Spring of this year. The Online Safety Act was passed with the best of intentions: to protect people. However, it seems doomed to fail unless the regulators can move more quickly. Ultimately, it may be that the only practical option that remains in order to adequately protect children, is for the UK to follow Australia’s lead and to ban all under 16s from using social media.”

TOPIC: A further investigation into the activities of sex-grooming gangs

COMMENT BY: Alan Collins, partner in the sex abuse team at Hugh James

“The Conservative Government had over four years to bring about mandatory reporting laws and implement other IICSA recommendations, yet failed to do so. Politicians across the spectrum – Labour included – appear to eschew accountability when it comes to safeguarding of child sex abuse. My take is they fear accountability on this issue.

The question is: would the government take any notice of another inquiry? The odds are it would NOT, based on the track record of successive governments having ignored difficult reports previously.

The chair of IICSA, Alex Jay, had previously produced a report on the Rotherham grooming scandal – this is a bit of a ‘déjà vu’. What more needs to happen in order for politicians to get their collective act together?

We know that the victims of grooming gangs are some of the most vulnerable in society, and far too often get blamed for the abuse, citing “child prostitution”, “life style choices” and so on. Sadly, these victims often fall off the police and social services’ radars.

The government has painted itself into a corner and I suspect there will have to be a public inquiry to assuage the widespread concerns around grooming gangs.”

TOPIC: The legal action by hundreds of junior workers at McDonald’s  following allegations of widespread discrimination, homophobia and sexual harassment

COMMENT BY: Emma Cocker, Senior Associate, Employment team, Lawrence Stephens Solicitors

“All employers have duties to protect their staff against discrimination and harassment in the workplace – obligations which apply regardless of whether people are engaged on a full-time, part-time or zero hours basis. 

“However, with most McDonald’s workers being engaged on a zero hours basis, individuals will be acutely aware of their employment insecurity. They are also likely fearful of being subjected to detrimental treatment for raising complaints. The abuse which arises from the imbalance of power inherent in these types of workplace relationships can lead to significant liability for businesses, of which employers must be conscious. 

“It would appear that McDonald’s still has a long way to go in providing a safe working environment free from discrimination and harassment. How they handle these claims will likely be carefully scrutinised. The longer businesses allow this kind of behaviour to persist, the longer the list of grievances and legal claims they will face.”

TOPIC: The Jennifer Lopez/ Ben Affleck divorce settlement through mediation

COMMENT BY: Michelle Uppal, Partner, Lowry Legal

“It is so refreshing to see a celebrity couple resolving their divorce through family mediation – no drama, just manging their affairs privately  like grown ups with dignity and integrity.

“By electing the family mediation process  Jennifer and Ben took control and were able to make their own informed decisions so that they can move forwards with their lives leaving a positive legacy for their own children.

“With an increase in mediation starts in 2024, there is a real shift in attitude where couples are proactively choosing the right process for their family and actively choosing not to go to court.

“This is a timely reminder that even the rich and famous gain nothing from a public fall out especially where there are children on both sides and they can financially support themselves.”

TOPIC: The government’s plans to tighten the law around non-consensual sexually explicit images, or “deepfakes. 

COMMENT BY: Mark Jones, Partner in the Dispute Resolution Team, Payne Hicks Beach. 

“The government has announced plans to create a new offence for those who create sexually explicit deepfakes, the sharing of which is already a criminal offence.

“The need for an offence to tackle those who create sexually explicit deepfakes is clear. The Online Safety Act 2023 criminalised the sharing but not the creation of such deepfakes.

“The need to address those who create the deepfakes has been debated for over a year now. So, whilst the news is welcome, it is long overdue and action should have been taken far sooner.

“No timeline has been given for when the new offence will be introduced nor further details about the new offence.

“The delay in bringing in legislation to tackle those who create sexually explicit deepfakes is unacceptable and exposes victims to unacceptable ongoing risk.”

COMMENT BY: Emma Woollcott, Partner and Head of Reputation Protection and Crisis Management, Mishcon de Reya

“We welcome the proposed new laws announced by the Government today seeking to widen protections for victims of intimate image abuse by criminalising: (i) the creation of sexually explicit deepfakes, (ii) the taking or recording of intimate image without consent, and (iii) the installing, adapting, preparing or maintaining of equipment to take an intimate image of another without consent. These are important and much needed reforms to close the gap in current legislation, which is limited only to sharing or threatening to share intimate images without consent.

“A recent Private Members Bill introduced in the House of Lords by Baroness Charlotte Owen, the Non-Consensual Sexually Explicit Images and Videos (Offences) Bill [HL],  also sought to make it a criminal offence to solicit the taking and/or creating of sexually explicit images of another without consent. This provision sought to address a potential loophole whereby a person could request for intimate images to be taken or created by another person in a jurisdiction outside of the UK, where such conduct is not a crime in that country. We await to see how and whether the Government intend to also address this issue in their proposed legislation.

“Technology, including generative-AI, has rapidly outpaced legislation meaning that urgent action is needed to address this growing form of abuse which disproportionately impacts women and girls.  

“98% of deepfakes are pornographic and 99% of those are of women and girls. And while there have been instances where famous women have had deepfakes images created of them, the campaign group, My Image, My Choice found that the most targeted group of people are ordinary women and girls.

“It’s happening at scale and the impact is violating and deeply disturbing. The images aren’t real, but they really look like they are, and the people that have been targeted have said that they felt utterly dehumanised and were made physically sick by what they’ve seen.  

“There is a lag between what the law currently protects and what technology enables people to do and the government needs to ensure that it futureproofs any legislation by pre-empting technological advances and potential loopholes which might be exploited, to help combat the alarming rates of misogyny and violence against women and girls in the UK.”

+ APPOINTMENTS OF THE WEEK

LAWRENCE STEPHENS

Skylar McKeith is joining Lawrence Stephens as head of the firm’s new Immigration Practice, a development which aims to enable the firm to continue to provide a wide range of clients with the very best in integrated legal advice.

As an active member of the Immigration Law Practitioners’ Association and a regular commentator in the national press and across radio and television, contributing to discussions around immigration issues, McKeith already has a high profile in the immigration field.

Featured in her track record are the securing of a Global Talent visa for an Emmy Award-winning American actor, successfully obtaining Skilled Worker visas for employees of a renowned art gallery and securing a sponsor licence for a professional women’s football club – enabling the recruitment of international talent.

“Lawrence Stephens is a dynamic firm which has grown significantly over the past few years, and I am delighted to join such a vibrant and acknowledged team of legal experts,” said McKeith. “I look forward to working closely with the firm’s existing departments to provide clients with a full suite of services.”

COLLYER BRISTOW

Sarah Coe is joining Collyer Bristow as a Partner in its Corporate & Commercial team. Formerly with Clarke Willmott, Coe originally qualified as a barrister and solicitor in New Zealand. She re-qualified as a solicitor in England & Wales when she joined Linklaters in their London office. She has also worked as a consultant in-house in the City and in private practice at Carter-Ruck & partners and Norton Rose.

In the course of this she gained considerable experience advising corporates and entrepreneurs on acquisitions, sales and licensing of IP, as well as advising on a wide range of issues relating to their entering new markets, commercialising innovation in existing service and product offerings.

“Sarah’s reputation and expertise in providing innovative and tailored advice to fast-growth, ambitious businesses perfectly aligns with our overall focus as a firm,” said Sharon Fryer, Head of Commercial Services at Collyer Bristow. “Sarah’s addition bolsters our broad service offering to businesses and complements our sector credentials in Digital and Financial Services, and we are thrilled to welcome her to Collyer Bristow.”

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