Edward Fennell’s LEGAL DIARY

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

March 22 2024

Editorial contact: fennell.edward@yahoo.com

The Likely Lad Hoping His Past Won’t Come Back to Haunt Him
Image courtey of UK Parliament

When Keir Starmer slips into Downing Street in the Autumn how far up his list of priorities will be the Crown Prosecution Service? On the face of it the new Prime Minister will not show particular favour to the manor of which he was the former guv’nor. Talk to most practising barristers, however, and they will say that the CPS is in a parlous state with its workforce deep in the malaise which is demoralising the civil service more generally – staff illness, woeful WFH and inadequate staffing. The fact that this week some police services have indicated that they intend to bypass the CPS regarding rape prosecutions is clear evidence of its failure. Moreover some barristers claim that it started to go to rot on Starmer’s watch.

Labour is now saying that it will invest in the prison estate so that ‘no prisoner will not go to gaol because there is no place for them’. That is all well and good. But without a spruced-up CPS and investment in criminal barristers there may not be the need.

The LegalDiarist

In this edition

– Scholars to Study Women’s Legal History

– Gearing Up for Pro Bono Week

Dr Sali Berisha: Let Him In?

Don’t ‘Go To Gaol’

– How GCs will need to be savvier during this period of economic uncertainty by Iain Brown

– How far should the Court interfere with pre-nuptial agreements? asks Teresa Cullen

– Animalprotection and preserving our collective destiny by Kimberly Moore

on Ted Baker, false claims for AI products and apprenticeships in the law

FORSTERS and IRWIN MITCHELL

Scholars to Study Women’s Legal History

The study of women’s legal history is being given a boost by a new scholarship programme fromthe Next 100 Years Project which is now celebrating its tenth anniversary.

 The programme will sponsor 30 ‘Scholars’ over a three-year period, starting next year. It will be open to both men and women from any background who must be in the final year of their undergraduate degree at a non-Russell Group university. The key requirement will be that they must direct their dissertation or research to an aspect of women’s legal history.

Designed to commemorate the achievements of the earliest women lawyers each of the Scholars will be associated with one of 30 female trailblazers of the first 100 years. “Supporters can choose from a list of icons that will be visible on our new look website,” says the F 100 years. “When an organization or individual sponsors one of these historical icons, we’ll reassign their generous donation to one of the 30 most promising legal students in the UK.”

The scholarships are part of the Paving the Way campaign which aims to ‘empower the next generation of Gamechangers through a scholarship fund that continues to draw inspiration from those pioneers who led the way’.


In addition to a grant, each scholar will receive mentoring, the opportunity to speak at Next 100 Years events and potential placements at UK law firms to support them in their first steps into the legal profession.

“Ten years ago, we set out to recognise the female trailblazers who laid the groundwork for progress in the legal profession, celebrating their legacy and drawing inspiration to continue to push for equality for women in law, “ said Dana Denis-Smith, CEO of Obelisk Support and founder of the Next 100 Years.

“Our new Paving the Way campaign is designed to support students building on that body of work, shining a light on the often unrecognised role of women who have challenged societal norms, confronted injustices and helped to shape our laws and legal system. We want to give the next generation of game changers help on the first step of their journey into a legal career.”

For more information go to https://next100years.org.uk/scholars/ 

– Gearing Up for Pro Bono Week

Scarcely has one Pro Bono Week (PBW) disappeared over the horizon than planning for another one starts to loom. And a good thing too you might say given the scale of the need in a society where ‘legal aid’ has become a term of almost archaeological significance. So the word is out that PBW2024 will be from 4-8 November with he aim of ‘bringing together the UK legal community to collaborate and innovate – with the goal of enabling more qualified legal assistance to be provided free of charge to those who need it most’. 

The announcement also provides an opportunity to take stock of what happened almost six months ago and to give due credit to new insights and new initiatives. Amongst these, for example, was the impressive revealation that  49% of barristers had undertaken pro bono  work in the previous year, that there was a new South West Chancery Litigant In Person Support Scheme and that a  Pro Bono Expert Support  scheme had been launched.

More details will be given in June regarding the themes for this year’s discussions and events, in order to help organisers shaape up their own events.

 “It remains important that the legal community comes together for Pro Bono Week every November putting a spotlight on legal pro bono and recognising those lawyers who generously volunteer their time,” said Toby Brown, chair of UK Pro Bono Week, “

We look forward to revealing the themes for Pro Bono Week 2024 and supporting everyone to organise their own events in the coming months.”

A full report on last year’s Pro Bono Week can be found at probonoweek.org.uk/2023report.

– Dr Sali Berisha: Let Him In?

Immigration issues come before the courts in all shapes and sizes and one of themore unusual cases opened his week when the Special Immigration Appeals Commission (SIAC) started to hear the appeal of Dr Sali Berisha (the current Albanian opposition leader) against the Home Secretary’s decision to exclude him from the UK on the grounds of alleged criminality and corruption.

Albanian politics are a bit murky but given the cosying up of the UK Government to the Albanians recently over the deal to take back their illegal entrants there are suggestions that some political calculations might have been at work. For his part Dr Berisha is adamant that .the allegations of criminality and corruption made against him are untrue. After all, he says, he had no criminal convictions in Albania. So the decision to exclude him was, he contends, the result of lobbying by his political enemies.

“This is an extraordinary case where an opposition leader of another European country has been subjected to an exclusion order on the basis of mere allegations largely mined from foreign media sources of questionable editorial independence,” said Kartik Mittal, Partner at Zaiwalla & Co. the lawyer for Dr Berisha’s. “Dr Berisha has never been convicted of any offence in Albania and vigorously denies having been involved in corrupt criminal activities,”

According to
Zaiwalla & Co. the challenge to the lawfulness of the Secretary of State’s decision will draw attention to the questionable use of this power by the UK Government ‘as an alleged foreign policy tool’. 

Could be quite a fight.

– Don’t ‘Go To Gaol’

Meanwhile, in another case featuring a high profile European figure, Oleg Deripaska (the Russian oligarch whose fortunes have raced up and down over the years) has vanquished his rivals Navigator Equities Limited & Vladimir Chernukhin who were trying to get him incarcerated for contempt of court.

“I started my business in a unique time – one country was gone, and the other had not yet appeared,Deripaska famously said. “The first gave me the opportunity to get a wonderful education, the second, to succeed.”

As we have often seen, however, success for Russian businessmen often comes at a price whether in or out of the courts – or indeed out of a window. In what was a complicated business wrangle – over shareholdings and issues of redomiciliation from Jersey to a special economic zone in Russia – fought out in the Court of Appeal, HHJ Pelling KC said he had concluded that the claimants’ case had not been proved to the criminal standard and consequently he would dismiss their application to commit Mr Deripaska to clink.

We are pleased that the Court of Appeal has dismissed Mr Chernukhin’s latest attempt to commit our client, Mr Deripaska, to prison,” said  Mark Hastings, Partner at Quillon Law who represented Mr Deripaska, “In doing so, the Court of Appeal expressed surprise that nothing was said by Mr Chernukhin at the time about the redomiciliation, despite the fact that he had read press reports about it.The conclusion of the Court in this long running dispute was that either it did not occur to Mr Chernukhin that the redomiciliation constituted a contempt or, if it did, he made a deliberate choice to say nothing about it at the time.”

Confused? – well it is Russia.

How GCs will need to be savvier during this period of economic uncertainty

by Iain Brown

 In recent research Thomson Reuters found nearly 50% of in-house legal teams were increasing the amount of work they did in-house, due to tighter budgets. The research also discovered that 69% of in-house legal teams over the next year would absorb more work currently given to external counsel.

Increased workload equals increased responsibility and enhanced pressures. General Counsel are used to dealing with squeezed legal spends. This can be due to different reasons. Some businesses still see the legal department as a cost centre, rather than a profit generating team. On the other hand, many businesses take the opposite view, seeing them as profit driven and with the resulting high expectations that in-house counsel should strive to do more with less.

But now, General Counsel are reaching crunching point. Businesses are demanding even more from their legal function to weather the impact of geopolitical events, enhanced international regulation, ESG obligations, data protection, compliance and the opportunities and risks that come from new technologies such as AI. Indeed the General Counsel report by FTI last year found 100% of respondents were “experiencing increased workloads and burden” from some of the obligations listed above. Therefore, the pressure will be on GCs to look at ever more savvy ways for their legal function to grapple with these challenges, to ensure the business survives, thrives and is still profitable.

In-house legal teams will increasingly need to look at their operating models and redesign these for efficiency and cost effectiveness. For example, freelance lawyers can be hired on a project basis to deliver work while maintaining a leaner permanent headcount; existing software the team already uses could be automated to help with repetitive tasks, versus large investments into the latest AI software which can be expensive and take time to integrate; in-house lawyers could be trained to implement legal project management techniques or external consultants could be used on a temporary basis to manage projects; change management approaches such as Lean Six Sigma could also be adopted to reduce inefficiencies, ease bottlenecks in processes, and adapt in-house legal teams to new ways of working. While in-house teams look to optimise what they do with limited resources, they must make an assessment of what the best use of their time is to add value to their business.

Naturally, this will leave a list of tasks that, though still required to be carried out, do not necessarily require the unique skillset or institutional knowledge of the in-house counsel. It is in this area that a Managed Legal Services specialist can look to help decrease time spent on non-priority tasks and relieve the day to day pressure on in-house legal teams. Managed legal services can involve the transfer or outsourcing to a law firm or alternative legal services provider of one or more of the activities typically carried out by the in-house team. For example, NDAs, supplier contracts or DSARs. They are outcome-focussed solutions which combine high quality, flexible and agile people with improved processes and technology. Typically with agreed service levels and alternative pricing such as subscription models.

As more work gets absorbed in-house over 2024, General Counsel will need to look at these different approaches to ensure they have a sustainable and strong approach to dealing with their increased workload.

Iain Brown is Head of MLS Legal Delivery at Pinsent Masons Vario

How far should the Court interfere with pre-nuptial agreements?

asks Teresa Cullen

The court holds tightly to what it considers to be its guiding principle of “fairness”, this affects both procedure and outcome. This principle affects not only the interpretation of prenups but also allows the court the final say on whether, for example consent orders, even when agreed between the parties and with legal advice, may be approved.


The concept that the court must be the final arbiter of fairness is one which is unlikely to change for sometime to come. Our system of distributing finances on divorce is rooted in a discretionary system rather than an arithmetical formula as is followed in other jurisdictions.

It should also be borne in mind that the negotiation of pre-nuptial agreements in particular, can hardly ever be considered to be on a level playing field, not only in terms of financial status, but often one party is reluctant to “rock the boat“ fearing that it may jeopardise the relationship, even when the agreement is negotiated many months prior to the wedding itself. Power imbalance and elements of control are often present long before the walk down the aisle.

So what can be done to increase the chances of the court accepting the terms of a prenuptial agreement and to mitigate the effects of any power imbalance real or perceived ?

  • Independent advice from a lawyer specialising in these types of agreements is a must. Allow plenty of time between the negotiations and completion of the prenuptial agreement and the wedding
  • Carefully prepare financial disclosure so that the financially less secure party is well aware of the nature of what they are about to concede by entering into the agreement.
  • Take advice from specialist foreign advice if the agreement is to be relied upon in other jurisdictions or is intended to regulate the division of assets in other jurisdictions 
  • Consider using the forums of Mediation or Collaborative Law where sensitive issues may need to be covered or explored more easily
  • Above all else have at the fore front of the negotiations that the agreement must be and be seen to be “fair”

 Teresa Cullen is a Family Law Partner at Fladgate

ANIMAL PROTECTION AND PRESERVING OUR COLLECTIVE DESTINY

by Kimberly Moore

Rooted in exploiting animals and the environment, human actions harm ecosystems and lead to resource scarcity. Marine plastic pollution and oil spills threaten all ocean life. Military exercises kill billions of sea animals; industrial fishing longlines have killed billions more (including many non-target species such as dolphins, whales, and sea turtles). Animal farming fuels deforestation in order to make way for grazing land and feed crops for farmed animals, which increases the frequency of destructive weather events, exacerbates food and water shortages, and results in species extinction. Our destruction of the natural world also has profound implications for national security; scarce resources, including food and water, are expected to lead to a growing number of wars and conflicts.

A better-informed public is demanding greater legal protection for animals, and it turns out that what is good for animals is also good for us. In 2022, the United Nations adopted a Resolution affirming that the health and welfare of animals is connected to the health and well-being of humans.

In response to growing concerns about the treatment and protection of animals, a new field of law has emerged: animal law. This specialised area of legal practice focuses on advocating for the rights and welfare of animals, addressing issues ranging from cruelty and exploitation to conservation and habitat preservation. As the field continues to evolve, it plays a crucial role in shaping legislation, influencing public policy, and fostering a more compassionate and ethical relationship between humans and animals.

Many jurisdictions have enacted laws prohibiting acts of animal cruelty, neglect, and abuse, with penalties ranging from fines to imprisonment. Legislation sets minimum standards for the care and treatment of animals in various contexts, including farming, research, entertainment, and transportation. And legal measures aim to conserve and protect wildlife habitats, regulate hunting and trapping activities, and combat illegal wildlife trafficking. This means there is a widely held view that animals are adequately protected under existing laws. This is not the case.

Key principles guiding animal law should include recognising animals as sentient beings with inherent value and rights, promoting humane treatment and welfare standards, and holding individuals and entities accountable for acts of cruelty and exploitation.

Developing robust legal frameworks for the protection of animals will require that we recognise an animal’s right to live free from exploitation and harm. It will also require sober reflection on our own actions that contribute to animal suffering and how our mistreatment of animals jeopardises our shared destinies.

Kimberly Moore is a Fellow at the Oxford Centre for Animal Ethics, and author of The Case for the Legal Protection of Animals, Humanity’s Shared Destiny with the Animal Kingdom.

TOPIC: What next for Ted Baker?

COMMENT BY: Nicola Ross, Partner in the Litigation and Dispute Resolution team, Morton Fraser MacRoberts

“At this stage the company has given notice of its intention to appoint administrators, so it’s not in administration quite as yet. The company’s employees, lenders and suppliers will likely face a nervous wait until they get clarity on what’s happening next.  In the meantime, the company will benefit from a moratorium on legal action and debt enforcement which, simply put, means that, except in certain circumstances, no one can take steps to recover what they’re due, whether that’s money or assets.  This means Ted Baker can explore the possibility of a sale or other rescue without pressure from creditors.

If Ted Baker does end up in administration – which certainly seems likely – then everyone who is owed money by the company will be wondering how much is left in the pot to go round and what they’ll get back compared to what they’re due. In the event of administration then there is a strict order of priority of claims which would mean that Ted Baker’s lenders with fixed charges over properties and assets would be paid first, then the expenses of the administration, then the administrators’ fees and preferential creditors such as employees, then the “prescribed part” which is an amount set aside (up to a statutory cap) for ordinary creditors from sums otherwise due to floating charge holders, then it’s the turn of floating charge holders (which would be lenders) and, finally, ordinary creditors like trade suppliers.  The big question will be how much is there to go around. Some trade suppliers might have the benefit of retention of title clauses in their contracts which mean they can recover possession of their goods but that still leaves them with a stack of unsold goods which isn’t likely to be ideal.   

Administrators would also need to consider the different laws across UK borders as part of their approach. For example, landlords of Ted Baker’s Scottish stores should have the benefit of a relatively little known legal security called a “hypothec”, which gives them a priority over the physical assets in the stores which are owned by the company which can be used to claw back unpaid rent.” 


COMMENT BY: Jeremy Whiteson, Restructuring and Insolvency Partner, Fladgate

The reported filing of a notice of intention to appoint administrators to the UK arm of Ted Baker is a further blow for the UK high street.

The issue of a notice of intention to appoint administrators today will, almost inexorably, lead to the appoint of administrators.

From that point there are a number of options. Administrators have broad powers including to sell a business as a going concern, continue the trade, or break up the business and sell stock, brand and other assets.

Which of these routes they take will depend on the state of the company and the level of interest of potential buyers.

The administrators should try to act in the best interest of creditors. This makes for a worrying time for the staff of the groups’ stores.

What we can say with greater certainty is that high street retailers are having a tough time. They have been besieged by multiple challenges- the pandemic, restricted supplies after Brexit, tighter labour markets (leading to upward pressure on wages) and high fuel costs. That all comes in addition to difficulties which are specific to this business- such as the troublesome departure of Ray Kelvin.

It is hoped that a solution can be found which safeguards the jobs of staff. However, it seems likely that many buyers will simply be interested in the brand and stock, shifting the business to an online operation or to be integrated into a multi-brand retailer (such as Next or Frasers) . That has been a common trend in many recent retail insolvencies across many sectors including fashion and clothing (such as Top Shop, Gieves & Hawkes. Agent Provocateur, Joules), and furniture and homeware (Made.com, Cath Kidston).

TOPIC: The fines imposed on Delphia (USA) and Global Predictions to settle charges of making misleading statements regarding the use of artificial intelligence (AI) technology in their products.

COMMENT BY: Dr Ilia Kolochenko, Partner & Cybersecurity Practice Lead at Platt Law LLP

In 2024, we should expect increasingly more probes and interventions by the SEC, FTC and other federal agencies to finally bridle unfair and deceptive trade practices relating to AI. A rapidly growing number of companies aggressively advertise unproven AI capabilities, surfing on the hype created by Generative AI, initially overpromising and eventually underdelivering.

Today, AI-related promises to lure inexperienced investors like a magnet. Worse, even professional investors and large funds lavishly invest in untested AI technologies under the Fear of Missing Out (FOMA) syndrome, blindly trusting flashy powerpoint presentations. Companies that use AI and leverage it as a key differentiator on the market must be well prepared to convincingly explain the tangible value and benefits of their AI technology and substantiate their arguments, otherwise they may face civil actions and even criminal prosecution.”

TOPIC:  The Prime Minister’s pledge this week to create up to 20,000 more apprenticeships,

COMMENT BY: Ronan McCann, CEO and Managing Partner at HF

We’ve supported apprenticeships in our business for many years and it’s great to see the government recognising the true value of them in businesses. Through our apprenticeship scheme not only have many fantastic individuals had a hands-on kickstart their legal career, but we’ve been able to foster a diverse range of talent that has enriched our business. Apprenticeships remain a key strategic part of our people plans and we hope that with this announcement apprenticeships become a norm for businesses up and down the country.”

FORSTERS

Jo Keddie (left) has been appointed to Forsters’ Employment and Partnerships practice as a partner. Previously with Winckworth Sherwood where she had headed its Employment and Partnerships teams Keddie had also led the firm as Senior Partner from 2021 to 2023. Enjoying top tier rankings in both the Legal 500 and Chambers directories for her expertise in acting in partnership and senior executive cases Keddie has recently featured in The Lawyer’s Hot 100 listing for the second time.

Professionally, Keddie has represented a broad suite of clients in contentious and non-contentious matters, including corporates, senior executives and charities and has experience in investigatory work involving regulatory bodies, corporate clients, and individuals. She has advised a number of financial institutions, corporates and charities in successfully investigating and defending claims for unfair dismissal, whistleblowing, race and religious discrimination, sex discrimination/harassment and age discrimination.

Keddie will be accompanied by Danielle Crawford and Daniel Parker will join the team at Forsters as Counsel and Senior Associate respectively.

Irwin Mitchell

Stewart Sanderson (left), an experienced wealth manager, has been appointed as the new Chief Executive Officer at Irwin Mitchell’s financial planning business IM Asset Management Limited (IMAML).

Sanderson joins from from Brooks Macdonald where he was a senior director and led on the UK Private Client proposition advising key clients on their broad financialt needs.

With over 25 years’ experience of UK wealth management Sanderson holds several industry qualifications, is a Fellow of the Chartered Institute for Securities & Investment (Chartered FCSI) and is a recommended wealth manager in the Spears 500 guide. He has worked at institutions such as Seven Investment Management LLP, Lloyds Private Banking and Coutts & Co. and also developed and led other private client businesses across London, Edinburgh, and Jersey.

“Stewart has tremendous experience in growing private client businesses and his expertise will be invaluable as we seek to grow our share of the broader wealth management market,” said Simon Hynes, Chair of IMAML.