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

24 January 2025

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK:

THE PRINCE PRESSED ON

There are many lessons from this week’s battle between Prince Harry and the power of NGN. Exactly what they are will depend on your perspective. For many it will be that the press has been brought to heel and that its contempt for the law has been definitively exposed and punished. Others might take the view that it’s just the same old story – justice is available but only to those who can afford it. That in itself is shameful.

But there is also another angle on all this. The phone hacking scandal was the result of new technology. Private investigators did it because they could. Most ordinary people had no idea that it was possible to ’hack’ into telephone conversations. Those who mastered it fastest were the reckless and the rule-breakers. Already we are seeing the same with AI (see below on Hogan Lovell’s new research) and crypto. Law-makers and law-enforcers need to catch up.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

Bar Council Stands Up to Defend Lawyers

To KC or NOT to KC?

Gen AI’s Threat to Democracy – What’s the Law?

Lawyer Leading Demand for Change Over Early-Pregnancy Loss

+ CONTRIBUTED ARTICLE OF THE WEEK

Latest Developments in Imprisonment for Public Protection (IPP) Resentencing for Prisoners by Nicola Maynard

+ LEGAL COMMENT OF THE WEEK

on the Southport murders, Trump and climate change, planning appeals, class representatives’ independence, the Non-Dom tax regime, CMA’s new boss and investigation into Apple and Google, LinkedIn and AI, and NGN and Prince Harry, Thatchers v. Aldi

LEGAL DIARY OF THE WEEK

Bar Council Stands Up to Defend Lawyers

Anyone in Britain who watched the scenes outside the Commercial court earlier this week when David Sherborne, the barrister for Prince Harry, celebrated the outcome would have taken for granted that he could speak freely and was not under threat from intimidation – let alone a hitman.

But that is far from the case in may jurisdictions.

Today is marked down as the International Day of the Endangered Lawyer and the focus this time round is on Belarus. “Our colleagues in the country are facing pervasive, systematic harassment and interference with their professional activities. Lawyers face arrest and detention, as well as disciplinary measures, simply for doing their job,” points out The Bar Council of England and Wales.

Moreover, while David Sherborne was under no threat that is not true of the legal community more generally. One consequence of London’s status as the place where the world comes to litigate is that tensions and techniques from foreign regimes can seep into the city’s life. The Bar Council reports that it is concerned by, “The rising reports from members who have faced different forms of attack and threats because of their international legal work.”

Meanwhile Hugh Mercer KC, Chair of Bar Council’s International Committee adds,“There must be no impunity for governments or non-state actors who continue to harass and intimidate lawyers carrying out their professional duties whether at home or abroad. Our global legal profession is made up of individuals united by an interest in the legal system, the rule of law and access to justice. It is now more important than ever to seek to achieve global support for the safety of lawyers and the promotion of the UN’s Basic Principles on the Role of Lawyers as a standard safeguard for all lawyers.”

To KC or NOT to KC?

Meanwhile, whatever the potential threats, it’s a big day for those who have applied successfully for the rank of King’s Counsel with  the Ministry of Justice and King’s Counsel Appointments (KCA) revealing the names of this year’s 105 new appointees.

Not so delightful though for those who did not get past the line  with data on the diversity of applicants showing that none of the 10 Black applicants and none of the 5 employed applicants was successful in this round.

Commenting on the figures the Chair of the Bar Council, Barbara Mills KC, said, “We are pleased to see 17% (18 of 105) of the new silks are from a minority ethnic background but it is concerning that this year none of the Black applicants was successful. There is a need to better understand the factors that impact the success of Black applicants, as well as ensuring the right support is available for those wishing to apply to demonstrate their excellence in advocacy. Our Race Panel is keen to develop a programme of work to support this and would welcome the opportunity to talk to Black barristers who have applied, or considered applying, for silk.

Mills went on to say that for employed barristers taking silk as a sign of career progression remains a key challenge “Given that the KC scheme is so heavily focused on advocacy. This is something that I will work closely with our employed barristers’ committee to explore.”

So, better luck next time – or better to think again?

Gen AI’s Threat to Democracy – What’s the Law?

Hogan Lovells has made an important contribution to the debate about the impact of AI on politics by publishing a report on the impact of Generative AI on the Right to Free and Fair Elections. In particular AI and Democracy Impacts of Generative AI on the
human right to free and fair elections examines whether there are positive legal obligations on States that are party to the European Convention on Human Rights (“ECHR”) to intervene to protect the integrity of their electoral systems from threats hypothesised to emerge from the misuse of generative AI.

As Hogan Lovells points out, “The advent of generative AI tools brings with it the risk that deepfakes (artificial video and audio content that is nearly indistinguishable from live recordings) will be used to influence what people believe about political candidates, political issues, and voting locations and times. Commentators have expressed concern that deepfakes could, in turn, be used to sway individuals’ voting choices or prevent them from voting altogether.”

What does seem clear is that as of now there are no obligations on states under Article 3 Protocol 1 of the ECHR (the Right to Free and Fair Elections) to protect voters from the impacts of mis/disinformation facilitated by generative AI. On the other hand the ECHR is a ‘living document’, and so the law could develop to accommodate this. “Any such intervention, however, must not endanger other ECHR rights – including the right to freedom of expression,” it warns. Sounds tricky.

To see the report in full go to https://www.hoganlovells.com/-/media/project/english-site/media/pdf/demos-stage-new.pdf

Lawyer Leading Demand for Change Over Early-Pregnancy Loss

There is a growing demand for a universal right of bereavement leave as a ‘time to grieve’ following early pregnancy loss. Taking the campaign forward at a national level is Keeley Lengthorn,  a family partner and head of public law children at RWK Goodman who is promoting George’s Law named after her own son George whom she lost at 22 and a half weeks. Amidst her grief she realised that she wasn’t entitled to any paid maternity leave. She is now is calling for three days of paid leave to mirror current legislation in New Zealand. 

The chances are that Lengthorn is pushing at an open door given that Parliament’s Women and Equalities Committee  recently published Equality at Work: Miscarriage and bereavement leave. The general view is that the government will support the campaign and ensure that the legalisation passes through Parliament.

“More businesses are implementing pregnancy loss policies, which is great, but this needs to be made law now,” said Lengthorn speaking to GB News. “We’ve got some of the big players who are offering paid leave now, but the little companies, they don’t. And I have people reaching out to me all the time saying, I lost my baby yesterday, it’s been two weeks and my employer is saying I’ve got to go back to work.

“And we’ve got many people who can’t afford, obviously, to take time off work. And if you’re taking it off as sick leave it, then goes on your record.

“When you go to a new employee, you’ve got to explain why you’ve been off. Why should we have to explain this? There’s this gap in the law. Employment laws need to keep up, and we need to fill that gap and have some legislation.”

Coming soon, one hopes.

CONTRIBUTED ARTICLE OF THE WEEK

Latest Developments in Imprisonment for Public Protection (IPP) Resentencing for Prisoners by Nicola Maynard

Imprisonment for Public Protection (IPP) sentences, introduced in 2006 and designed for those deemed “dangerous” and allowing release only through the Parole Board.

The IPP sentences were abolished in 2012 and deemed “inhumane” because those serving these sentencing had no idea when they may be released. Many people serving these sentences remain in custody today. There are a small number that have never been released however, a huge number find themselves in the revolving door of release and recall for numerous reasons.

In 2019, a High Court ruling found that the lack of a clear release pathway and prolonged detention violated prisoners’ rights to rehabilitation and reintegration. In 2020, the focus shifted to individually reassessing IPP prisoners’ risk to determine if they could be safely released. This process has allowed more prisoners to be released after showing they have completed rehabilitative programs and pose less of a risk.

Currently, IPP prisoners are reviewed by the Parole Board for license termination 10 years after their initial release, called the “qualifying period.” If the license isn’t terminated at that point, the case is reviewed annually.

The Victims and Prisoners Act 2024, which has recently become law, will bring major changes. The qualifying period will be reduced from 10 years to 3 years, and after 2 years on licence in the community without recall, the licence will automatically terminate. If a prisoner spends 5 continuous years in the community without recall, their licence will be automatically terminated as well.

Despite these positive developments many feel that these reforms do not go far enough. There is now a proposal for a new Bill which would see IPP prisoners undergo a resentencing process. You could see why this would likely be welcomed by those serving these sentences, it could mean that have a clear release date or sentence expiry date, a clear path to progression. From a Criminal Justice point of view this would also alleviate some of the burden on the Prison service and Probation service.

However whilst these moves would be a welcome step for prisoners and campaigners, the reality of these proposals would have significant implications. The Government might well consider that their impact on a crumbling and ill resourced Criminal Justice System would be problematic. It would require Judiciary and Court time as well as Representation for those who qualify.

It is said that the Justice Secretary and members of the senior judiciary have already voiced their concerns and opposition to the reforms. We will have to see what happens next.

Nicola Maynard is a Prison Law Partner at Reeds Solicitors

LEGAL COMMENT OF THE WEEK

TOPIC: Sir Keir Starmer’s speech regarding the Southport attack and the failings of multiple sate agencies together with the sub-judice rules

COMMENT BY: Julian Hayes, senior partner, Berris Law

 “Having undertaken a number of cases involving young men who have been referred to Prevent as a means to help a young person and prevent any potential risk they pose and yet have still ended up in the criminal justice system, I have often wondered what it is that they have actually done? It is clear that despite three referrals in this case it was an organisation incapable of mitigating the clear risk that this young man posed.”

“The rule of sub judice is a long-held principle of English law and it is quite proper that the authorities refrain from making comments before the criminal trial process has been completed. It is there because in criminal cases a person is presumed innocent until such time as he/she is convicted, after a trial, by a court, whether magistrates or a jury. This rule is there to ensure justice and fairness to all. To change this and allow the press the unfettered right to report or misreport (as has often been the case) would lead to trial by media, a place without legal rules and process. It would be quite wrong to do that to protect the fairness and integrity of the criminal trial process.”

TOPIC: The US withdrawal from the Paris Climate Agreement

COMMENT BY: Wynne Lawrence, insurance disputes partner and climate liability risk specialist, Clyde & Co.

 “The US withdrawal from the Paris Climate Agreement will increase regulatory ambiguity, creating increased complexity and, potentially, lead to legal disputes as companies deal with the resulting uncertainty around transition strategies across multinational groups and supply chains. Volatile climate policy signals dent business confidence and risk renewables investment being delayed at a critical time for climate action, as physical risks and catastrophic losses due to climate change are amplified year on year. Other countries will now need to fill the climate leadership void and could stand to benefit in the renewables technology race. Whatever happens, coordinated international efforts to address the climate crisis will become even more complicated.”

TOPIC: Proposals to change judicial reviews into planning decisions

COMMENT BY: David Richardson, partner and head of planning, Ashfords

“It isn’t uncommon for a refusal of permission to proceed with a judicial review claim ‘on the papers’ to then be overturned following a renewal hearing. To streamline that process it makes sense to cut to the chase and go straight to a hearing which allows the claimant to argue their case in person. Access to the courts isn’t limited by that, and the duplication of arguing the points already presented at the first stage is removed. It might however mean a greater burden on the courts – waiting for a listing can be one of the key delays in the process.

“The introduction of the concept of claims being totally without merit hasn’t perhaps had the impact hoped for in planning judicial reviews. The bar is (arguably correctly) high before harsher consequences are imposed following that finding. In any event it doesn’t appear that the Planning and Infrastructure Bill will look to change that test. But the steps to reduce the number of times what might colloquially be called a ‘no hoper’ are positive, given the national importance of these infrastructure projects. They go through an extensive consenting process, with substantial public consultation baked in. The path to legal challenge, if grounds are thought to exist, remains in place. These measures will streamline rather than remove it entirely.”

TOPIC: The judgment handed down by the UK Competition Appeal Tribunal (CAT) in a “carriage dispute” between two competing Proposed Class Representatives in a potentially £1bn class action against Amazon

COMMENT BY: Mohsin Patel, Director and Co-Founder at litigation finance broker Factor Risk Management

“Earlier cases (such as in Merricks v Mastercard [2021] CAT 28) emphasised the importance of protecting the class representative’s independence, particularly in settlement decisions. Funders’ direct control over settlements was considered to be inappropriate and potentially misaligned with class interests. The present case reflects an evolution by recognizing that funders can influence the settlement process, provided checks like independent KC review and CAT oversight are in place.

“This provides funders with comfort that they can have input into the settlement process, ensuring the Class Representative acts reasonably without granting a funder veto rights.”

TOPIC: The potential watering down of Labour’s new Non-Dom tax regime

COMMENT BY: Robert Brodrick, Chairman at Payne Hicks Beach 

“We welcome the Chancellor’s acknowledgement of the concerns that have been raised by the non-dom community, but unfortunately offering to increase the temporary repatriation facility alone is not going to be enough to persuade those who have left (or who are in the process of leaving) to stay in the UK. The real issue is the increased inheritance tax exposure (which is made even worse when you take into account Rachel Reeves’ death tax raid on farmers and business owners). The fact is that the UK is no longer nearly as attractive for internationally wealthy people as somewhere like Italy.  I would urge the Chancellor to use this opportunity to press pause on these destructive changes that have seen an exodus of millionaires from the UK at a time when the country needs to increase tax revenue, not reduce it.“

TOPIC: The appointment of former Amazon boss Doug Gurr as interim chair of the Competitions and Markets Authority

COMMENT BY: Alex Haffner, competition partner, Fladgate

“The announcement of the new Chair of the CMA cannot be pure coincidence, coming as it does at the same time as the UK Government is banging the drum for its growth agenda and calling regulators to account for their own policies on stimulating growth. Mr Gurr has been appointed on an interim basis suggesting this is not about succession planning and far more a reaction to current events. His background is also unashamedly commercial as opposed to the consulting one of his predecessor.

“What stakeholders will now be assessing is how the new appointment translates into the CMA’s approach to enforcement. Recent signs are that it has taken heed of criticism of previous decisions and is perhaps more willing to be flexible – the recent Vodafone / Three clearance decision being a case in point. However, the new Chair also takes on the role at a time when the CMA has taken on significant new powers under the Digital Markets Competition and Consumer Act, particularly in relation to its oversight of big tech meaning the CMA will likely become more activist, albeit giving considerable attention as to how to enforce in a way which best stimulates competition and therefore economic growth.”

TOPIC: The  CMA’s decision to launch an investigation into whether Apple and Google have Strategic Market Status (SMS) under part 1 of the Digital Markets, Competition and Consumer (DMCC) Act 2024

COMMENT BY: Alex Haffner, a competition partner, Fladgate

“This announcement was wholly expected – ever since the Digital Markets, Competition and Consumer (DMCC) Act 2024 was passed into legislation it was clear that Big Tech would fall under the CMA’s regulatory microscope. It also replicates the approach taken by the EU Commission to the equivalent EU legislation over the past 12 months.

“What is more interesting is how this fits into the current sea change which is engulfing the broader organisation of the CMA and in particular the very clear steer it is getting from central government to ensure that regulation is consistently applied with its pro-growth agenda. We can expect this to feature heavily once the CMA gets its teeth stuck into the specifics of the DMCC regime and its dealings with the tech companies involved.“

TOPIC: The accusation that LinkedIn has been giving third parties access to Premium customers’ private InMail messages for AI model training

COMMENT BY: Dr Ilia Kolochenko, Partner & Cybersecurity Practice Lead at Platt Law LLP, a Fellow at the European Law Institute (ELI) and a Fellow at the British Computer Society (BCS)

“Whether the allegations are with or without merits will likely become clear during the discovery phase – if, of course, the lawsuit proceeds till there without being dismissed. Normally, it should not be a technically complex task to collect sufficient external evidence that may, at least, indicate that data of Premium LinkedIn customers has been used for AI model training – if it was the case. If so, LinkedIn may face many other lawsuits including class actions, whilst the FTC may also intervene for unfair and deceptive practices.

“This may lead not only to significant financial losses but even to a judicial order to destroy AI models trained on unwarrantedly collected data, possibly including those ones owned by third parties. Having said this, with the President Trump administration, there is still a lot of uncertainty about the regulatory landscape and priorities in the US, things will hopefully get clear by the end of this year. In any case, all US customers who care about their privacy should opt out from using their data for AI training purposes.”

TOPIC:  The offer by NGN of a “full and unequivocal” apology to Prince Harry for illegal phone hacking

COMMENT BY: Jon Oakley, partner and reputation protection lawyer, Simkins

“This settlement is a complete vindication for the Duke of Sussex.

“It is the first time in this lengthy saga that News UK has admitted unlawful newsgathering at The Sun. The Sun’s apology is for conduct that spans a full fifteen years, from when the Duke was still a young boy to when he was a grown man.

“The statement read on behalf of The Sun in court indicates the strength of the Duke’s case, and rewards his determination for taking action against a hugely powerful media organisation.”

COMMENT BY: Kishan Pattni, Media Lawyer, Freeths

“This is a colossal victory for the Duke of Sussex, but settlement comes as a surprise to the media law world, because he had publicly indicated that he required the truth and wished to achieve a reckoning against News Group Newspapers at court. Indeed, it was rumoured that he would stand as a witness in the eight-week trial in pursuit of accountability. However, while detailed and potentially embarrassing facts for News Group Newspapers will no longer be aired, the substantial damages and open apology, which is remarkably contrite, will serve as an admission of their historic wrongdoing and provide full vindication for the Duke of Sussex and Lord Watson in the eyes of the public.”   

TOPIC: Thatchers v Aldi’s IP dispute vindicates Thatchers

COMMENT BY: Jeremy Hertzog, Partner and Chair of the Innovation department, Mishcon de Reya

“This judgment will, no doubt, be welcomed by large brands which have trade marks with a reputation in the UK. The Court of Appeal has departed from the High Court’s decision, to which there had been a divisive reaction, and has held that Aldi was liable to Thatchers due to it having taken unfair advantage of the reputation of Thatchers’ trade mark by a ‘transfer of image’. 

“It was always common ground between the parties that the Thatchers cider product was used as a benchmark by Aldi, and today’s decision acknowledges that, by adopting similar branding, Aldi was taking advantage of Thatchers’ promotion and investment. 

“Businesses offering “lookalike” products should heed the judgment as a warning that taking advantage of another brand’s image and reputation in this way can amount to trade mark infringement, even if the marks are not confusingly similar.”

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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