Edward Fennell’s Legal Diary – Edition 76

Diary items, insights and comments from the legal world

Friday 8th October 2021



Insulate Europe from Britain?

Sitting in a bar in central Italy earlier this week, watching the TV news was quite an experience. The Insulate Britain disruptions to the road network were getting extensive coverage from an incredulous TV reporter. The fact that these self-appointed eco-warriors had taken control of the highway and were even denying passage to people trying to reach a hospital was shocking beyond words. “This could never happen in Italy!” she was saying.

She was probably right. Italy is a strange mix of chaos and, when it wants, cool state efficiency. The combination of the Carabinieri and local police forces would probably have stopped the demonstrators in their tracks. More important though, even the most militant Italian demonstrators would have had pity on the sick and their visitors. Seen from abroad neither British law enforcement nor British society is an appealing sight.

The LegalDiarist   


NOTE: The LegalDiarist is currently travelling so this is a ‘pocket edition’ of the Legal Diary. We will return to the normal format later this month. Please continue to send your Diary stories, legal insights and comments to fennell.edward@yahoo.com

In this week’s edition


  • Golden Dreams Await Supreme Court Judgment
  • Stage Set for Change at Shakespeare Martineau
  • Osborne Clarke Bridges Career Gap Between Law and Deprived Communities
  • Increase in Employment Tribunal Causes Since The Covid Pandemic







E-VENTS The latest from KIDSLAW




Golden Dreams Await Supreme Court Judgment

‘To recognise or not to recognise’ that was the big question recently when the Taliban rolled over (with remarkable ease) the democratically-elected government in Afghanistan. The trite, get-out answer given by UK government ministers and spokespeople was that ‘We recognise countries not governments’ – which certainly seemed a novel way of looking at the matter. It also sounds rather at odds with the situation with regard to Venezuela where the UK Government apparently recognises Mr Guaidó as the interim constitutional President of Venezuela rather than the previous incumbent Mr Maduro who claims to have been democratically elected at the last elections.

Of course, many Western governments reckon that those elections were rigged. But, whatever your view, the hard reality is that Mr Maduro is still effectively in charge in Venezuela and Mr Guaidó is not. All of which feeds into the long-running case in the Supreme Court in London over the 31 tonnes of Venezuelan gold reserves held by the Bank of England on behalf of the Central Bank of Venezuela (BCV). To whom, if anyone, should they be handed over? Or more specifically who has the authority to instruct the Bank of England to do so?

With the Court’s judgment now eagerly awaited the position of Mr Guaidó seems to be weakening internally. Primero Justicia, the second most significant opposition party in Venezuela, has indicated that it is withdrawing its support for him due to doubts about his management of overseas assets. “It is surreal to imagine that Mr Guaidó and his appointees, whose management of foreign assets and dealings with foreign governments are regarded with suspicion by his own coalition partners, can exercise authority over such vast sovereign assets for the benefit and in the interests of the Venezuelan people,” commented Sarosh Zaiwalla, Senior Partner of Zaiwalla & Co, who is representing the BCV in the UK litigation.

What the Supreme Court will conclude is anyone’s guess. But no doubt representatives of the Taliban will be looking on at the outcome with particular interest.

Stage Set for Change at Shakespeare Martineau

Week-in, week-out we see that innovation in law firm management and operation can come from firms of any size and any region. A striking example of this can be seen (and felt) in the Stratford-on-Avon office of Shakespeare Martineau which has just had a markedly eco-friendly makeover. This includes pallet-clad walls and ceiling features, booth seating with sustainably sourced fabric, and tables made from recycled yoghurt pots – tasty! (See below for the full rota of the project’s e-friendly ingredients).

As the firm observes this is ‘The first in Shakespeare Martineau’s property portfolio to undergo a major makeover to reflect modern, new ways of working’. Nonetheless it is part of a much bigger and longer-term programme which includes 30 ‘ambitious responsible business pledges’ among which are achieving net zero by 2025 and becoming carbon negative by 2030. Meanwhile the firm has also recently announced its pending B Corporation status which means that it is legally required to consider ‘the impact of business decisions on its people, customers, suppliers, communities and the environment; ensuring a balance between purpose, people and profit’.  So it’s a big agenda.

“We’re delighted with the finished look of our Stratford hub – it reflects our personality and aspirations,” said Karen Walker, the firm’s chief transformation officer. “Over the coming 24 months, our wider portfolio of hubs will undergo refurbishments to become modern, eco-friendly spaces that promote collaboration between teams.” So, literally, watch this space.

Check it out: Shakespeare Martineau’s innovations in the refurbishment of its Stratford office means that more than 80% of materials were sustainably sourced, recycled or reused – including wall cladding made from reclaimed pallets; tables created using Forest Stewardship Council wood; stools made from recycled cosmetic bottles; upcycled chairs, which have been sprayed and re-covered in sustainably sourced fabric; carbon neutral flooring solutions; neon lights made from recycled acrylic; energy efficient LED lightbulbs; and finishing touches, such as Beach Clean coasters created using EVA plastic saved from our oceans.

Osborne Clarke Bridges Career Gap Between Law and Deprived Communities

There’s lots of rhetoric out there right now about diversity and levelling up in the professions but we are still waiting to see a critical mass of programmes which deliver results. One which might do the job is ‘The Bridge’, a joint initiative between Osborne Clarke and Visionpath which aims to provide long term skills and employability support via partnerships with schools with high levels of disadvantage.

The geographical focus is on secondary schools across cities in Osborne Clarke’s UK network namely Skinner’s Academy in London, John Madejski Academy in Reading, and Merchant’s Academy in Bristol.

“With ‘The Bridge’, we have a great opportunity to make a massive impact on the future prospects of young people in our communities,” comments Visionpath’s Founder Patrick Philpott. “Research has shown [that] just four interactions with an employer during secondary school can drastically improve a young person’s opportunity to succeed. The type of sessions and experiences Osborne Clarke is creating through ‘The Bridge’ will offer exactly the sort of experience and impact that will make a difference for young people.”

This is Osborne Clarke’s first ‘holistic’ schools partnership programme which aims to facilitate access to the legal profession and law firms. The offer includes half-a-dozen key experiences including first hand accounts of individual lawyers’ ‘career journeys’, diversity events, insights into career options in the legal industry, apprenticeship workshops and one-to-one mentoring and advice on higher education entrance.

“It’s really important to us that we make an impact in the communities in which we work,” said Bola Gibson, Head of Inclusion and Corporate Responsibility at Osborne Clarke. “The Bridge is a long-term commitment to these schools, their students and our people to help prepare the next generation to thrive.”

Osborne Clarke has been involved with the Social Mobility Business Partnership (SMBP) charity since 2014.

Increase in Employment Tribunal Causes in Covid Time

Research by Wright Hassall – see below – has revealed the level of increase – since the start of the pandemic – in the most common causes of employment tribunal claims. The figures provide a fascinating insight into what has been going on over the past year and offers clues into where there might be most misunderstanding of the law.

1.  Part Time Workers Regulations… 767.08%

2. Age Discrimination… 530.07%

3. Others… 108.22%

4. Transfer of an undertaking – failure to inform and consult… 84.16%

5. Unfair dismissal…10.71%

6. Public Interest Disclosure… 10.65%

7. Written pay statement… 10.46%

8. Race discrimination… 5.24%

9. Written statement of reasons for dismissal… 0.56%

So what can be concluded from the figures?

Most importantly perhaps is that as people moved from the clarity of a regular 9-5 pattern in the physical workplace into the novel regime of furlough or remote working there was confusion as to what part-time work actually meant. And no surprise really that older workers felt themselves particularly at risk or discriminated against as bosses decided which staff were most valuable when the hatches were battened down. On the bright side maybe it was encouraging that in these unprecedented circumstances the number of claims of race discrimination only increased by 5% – deplorable, certainly, but much less than might have been expected.

Overall in 2020/21 there were over 117,000 employment tribunals which represents an annual percentage increase of over 13% since 2010/11. Unfair dismissal was the most common tribunal cause of 2020/21 with more than 23,000 complaints.

The full details are available at





Pity expat divorcing couples living in Europe caught up in the swirling fog of post-Brexit legal uncertainty! Prior to the start of this year, as between the UK and any other European country, the question of jurisdiction was decided upon the basis of where proceedings were issued first.  Divorce proceedings could only be issued here [in the UK] if one of the parties lived here or they were both domiciled here and most family orders obtained in one European country could be enforced in another.

Now that [the British] have chosen not to be bound by or replicate the EU regulations governing jurisdiction, expat couples, where at least one of them is domiciled here, face the very real prospect of prolonged litigation costing tens of thousands of pounds in both the UK and in the country they are living simply to try to determine where their financial claims should be dealt with. Then, as a result of the EU preventing the UK from joining the Lugano Convention, even once jurisdiction is determined and a court has decided how assets and income should be divided, they face the very unappealing prospect of being unable to directly enforce judgements of a UK court in another European country or vice versa meaning that they may have to bring yet more proceedings .

As there are still over 1 million British expats living in Europe such cases are likely to clog up courts, which are already under extreme pressure, for years to come. This will not only cost the taxpayer dearly but will also cause totally avoidable misery and financial hardship to thousands of families unless we swiftly wake up to the fact that the only workable solution is likely to be to realign ourselves with the EU jurisdiction and enforcement regulations and continue to press our case for joining the Lugano Convention as a matter of urgency.”

Toby Yerburgh is a Partner and Head of Family Law at Collyer Bristow LLP


Continuing our regular series on the history of marriage EMMA NASH examines ‘Colonisation and Clandestine Marriages‘ and their implications for the institution three hundred years ago.  

By the middle of the 18th Century, the great European powers had substantial colonial holdings abroad. These were administered by a relatively small and very homogenous group of people – white males of the ‘right’ political and religious persuasion.

This presented an unusual situation in terms of family relationships with colonial populations consisting of administrator/owners, other colonists, slaves and the indigenous population each with their own family structures, morals and religious rites and rituals. The colonists had cemented their position of power, gained at the point of sword and gun, and sought to impose their own ‘higher’ values on those around them.  However, being far from their Government and Church meant attitudes towards relationships and the formalities of marriage changed or were often overlooked altogether.

Being predominantly men, finding a wife for the colonists was difficult, let alone one who came from the same class and cultural heritage. Formal marriages were therefore rare, and many colonists looked to the indigenous community and slave population to meet their conjugal and domestic needs. This was the exact opposite of what the governing powers of Europe wanted to achieve, particularly those looking to use the power of the Church to realise their aims. Missionaries in Portugal’s Brazilian colonies, seeing the Catholic Church’s position being undermined, petitioned the State to send more marriageable Portuguese women to help redress the balance and improve the morality of the colony.

 Meanwhile in England, the Anglican Church was trying to resolve the issue of ‘clandestine’ marriages, which were undermining their power to inject religion into the lives of the population.  From the Restoration, the strict requirements of canon law, such as the reading of banns and marrying in your parish of residence, had been reinstated. A ‘clandestine’ marriage was one which was valid, because it had been performed by an Anglican Clergymen, but without strict adherence to canon law. It was popular for those who wanted to a quick and quiet union, perhaps in response to pregnancy out of wedlock.  Fleet prison in London was well known for such practices, as interned Clergymen would marry anyone who could pay.  In 1754 the Clandestine Marriage Act came into force which made compliance with canon law a requirement for a marriage to be valid, and thus re-introducing religious control over unions with the power of the state behind it.

 Emma Nash is a partner in the family team at Fletcher Day.


Roberta Downey and Angus Rankin have joined Vinson & Elkins in London as partners in the International Construction Disputes practice which is believed to be among the largest of its kind in the City.

Both lawyers were previously at Hogan Lovells where Downey had extensive experience handling large arbitrations and highly technical disputes across a range of infrastructure industries. Rankin, meanwhile, advised clients in relation to major global disputes in the energy, infrastructure, petrochemical, transportation and industrial sectors.

 “Our London International Construction Disputes team has a reputation worldwide, Roberta and Angus add to what is already a strength of the firm,” said Vinson & Elkins chairman Mark Kelly. “Celebrating 50 years in London, we continue to expand and evolve to offer a full-service team of lawyers working across a range of practices and industries.”


The latest from KIDSLAW:The role of the Supreme Court in our justice system.

In this second episode of the brand new KIDSLAW series, Alma-Constance talks to Supreme Court Justice Lord Stephens about the different layers of our court system in the UK, and the process of appeal. Alma-Constance asks Supreme Court Justice Lord Stephens:

🔹 Why are there 12 judges in the Supreme Court and who decided how many there were going to be?

🔹 How does our court system compare to the court sytem in other countries?

🔹 Is being a judge more difficult than being a lawyer?

🔹 Do all judges have to agree when they are deciding cases?

🔹 Have you ever felt that after making a judgement, you got the decision wrong?

🔹 I know you worked as a judge for international cases involving children. Can you tell us about those cases?

You can listen on all major podcast platforms!


We look forward to publishing again next week so please send your diary news, insights and comment to fennell.edward@yahoo.com

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