Edward Fennell’s Legal Diary – Edition 85

Friday 10 December 2021 



Levelling Up Through Law?

The latest reports on the state of the legal sector– aside from criminal law – have been buoyant. According to Robert Walters, for example, professional vacancies are +55% up when compared with 2019 pre-pandemic numbers. Moreover the CityUK claims that ‘The sector’s significant economic contribution is well distributed across all regions and nations of the country. It employs around 365,000 people, two thirds of whom are based outside London’ (see their map above). Nonetheless having as many as one third of the country’s lawyers in well-paid jobs in the South East – with Magic Circle vacancies now representing 11% of all legal vacancies.- is one of the reasons for the need for ‘levelling up’.

If the gap between north and the south is to be breached then somehow more of those top lawyer jobs need to be persuaded to migrate.

The LegalDiarist

In this Week’s Edition

Short Thought: Levelling Up Through Law?


– Law Reports

– Give Us A Job

– Down and Out – This year’s Xmas Parties

– Will You, Won’t You?

– I Will (Not)

Court Report

LEGAL COMMENTS OF THE WEEK on the CityUK report, Frederick Barclay, Taylor Swift,


The Impact of the proposed pre-Xmas strike at Tesco by Lucy Flynn

APPOINTMENTS OF THE WEEK at ARC Pensions Law and CM Murray

Law Reports – Trys hard, Does well

Still looking good – in fact, better than ever!

It’s December so lots of scope for taking stock of just how well 2021 has been for lawyers despite the Covid monster. In this light the report ‘Legal excellence, internationally renowned – UK legal services 2021’ published by The CityUK makes impressive reading.

The sector is one of the country’s great success stories, contributing 1.5% of UK gross value added (GVA) in 2019 and contributing a trade surplus of £5.6bn in 2020,” proclaims Miles Celic, Chief Executive Of theCityUK with justifibale pride. “UK legal services are recognised across the world for their quality and excellence. The UK is the world’s preferred destination for businesses to resolve international commercial disputes. English common law is by far the most popular choice of governing law for cross-border contracts, and the sector provides a foundational pillar that supports the UK’s status as one of the world’s leading international financial centre.”

The report goes on to detail the minutiae of this achievement. One rather humbling statistic came from a2019 survey conducted by the Singapore Academy of Law of more than 600 legal practitioners and in-house counsel who engage in cross-border transactions in Asia. This found that English law remains the most popular choice of governing law in contracts. It was selected as the most frequently used governing law by 43% of respondents and was often used in transactions with little or no other link to the UK.

All of this law owes its authority, ultimately, to the Houses of Parliament and, thereafter, to the courts which interpret and enforce it. The integrity of that process should surely not be compromised.


Give Us A Job

In keeping with the success described by the CityUK 2021 has proved to be a record year for the legal job market. According to Chris Poole – Managing Director of the agency Robert Walters  the number of new appointment by law firms had exceeded pre-pandemic 2019 levels by +23% – and that was with one month left to go.

The highest level of growth came in fields of Banking & Finance lawyers (+84%) and Company/Commercial (+72%) but there might even be some comfort for the economy in that Restructuring/Insolvency (+12%) and Tax (+11%) came towards the bottom of the league table. Of course this is no guarantee for what happens next year and the numbers already seemed to be slowing down as winter arrived. Nonetheless looking ahead Chris Poole said, “Going into next year, our forecast is that activity in the legal sector will continue to mirror what is happening across financial services and real estate. The busier those two industries are, the more the law firms will recruit.”

Down and Out – This year’s Xmas Parties

History of 10 Downing Street - GOV.UK
This year’s hot party venue? Perhaps not.

As events of the past couple of days have illustrated the Ghosts of Christmas Parties Past can come back to haunt us – even the highest in the land. So no doubt at this very moment there will be anxious, last minute debates taking place in law firms across the country as to whether it is safe to proceed – legally, reputationally as well as healthily – with this year’s events. Add in all the usual risks of people going ‘a bit too far’ and one might be tempted to say ‘Maybe give it a rest – again – this year.”

But Simon Roberts, Senior Associate Solicitor at DAS Law, still seems to be up for it, come what may. “This year thousands of employees will be having a ‘real’ work Christmas party,” he claims. “For many of us, it will be the first time they have been able to have a physical party for some time.”

So maybe for many the idea of living it large for the first time since 2019 will be too much to resist. But Roberts then adds a string of warnings about the dangers of photography and video at these high jinks – and the likelihood of their subsequent resurfacing. “If the photos/video belongs to an individual then being able to get photos/videos removed from social media is highly unlikely, especially if the photo/video has already been viewed/shared,” he says. “The legal recourses available to prevent or remove photos/videos are a court injunction, a court order for return or destruction, or damages by way of financial compensation.” If only Allegra Stratton had known.

PS TheLegalDiarist’s office party is already well and truly cancelled.

Will You, Won’t You?

10 Reasons To Make A Will
Just in case (but it may never happen)

 The Covid effect, it seems, is proving highly persuasive in stimulating people to start talking about their wills. JMP Solicitors are reporting a significant increase in those who have organised a will during the past year with almost one in three people admitting that the pandemic had made them talk more openly about death. In fact, 50% of respondents said that the pandemic made death feel more imminent.

Remarkably it was reported that 298% more millennials made their will in 2020 vs. 2019 – and Gen Z saw an even bigger increase of 465%. Even more astonishing, maybe, is that in a survey conducted by Legal & General, it was recorded that ‘15% of respondents in the 16-24 age group have used their will to leave their assets to their pets – the highest out of any other age group.

But this is not all good news. What appears to be happening is that fear of a sudden demise is driving many people towards cut-price will-writing services which may well create a right old muddle for the heirs. Hence David Tew, a Will Disputes solicitor with Cartmell Shepherd Solicitors, is now busily raising the alarm over the potential pitfalls of using unregulated and uninsured will writers who advertise on the internet. Tew points out that a large proportion of people offering online will writing services are untrained legally, and therefore not qualified to offer expert advice. “They are often uninsured so there is no redress if things do go wrong.” Oh dear!

I Will (Not)

Are big, expensive weddings going out of fashion? Time was, not so long ago (probably pre-Crash) lots of late 20/early 30 year olds were loading themselves up with absurd debts to achieve Hello-type nuptials. Now apparently not so much – and certainly not if the happy couple is trying to save for a mortgage.

According to Amanda Phillips-Wylds, Partner at Stowe Family Law, Starting off married life in debt because of a lavish wedding does not bode well. We all too often see couples citing financial stresses as a major contributing factor to the dissolution of their marriage.

In fact, the amount couples have spent on their big day has been plummeting by as much as 30% since the pandemic began. Where the average cost of getting married in the UK in 2019 was £20,731, the following year it tumbled to £14,422, according to Bridebook’s survey of 4,500 couples – probably not least because lock-down meant that the guest-list was substantially reduced.

Beyond that, however, it seems to be that the shine is going off the wedding thing entirely. According to the Stowe survey   31% of respondents aged 18-24 think that marriage is an outdated institution (vs just 16% of those aged 65+) while  40% of ‘single’ respondents think that marriage is an outdated institution. Quite what this means for family law remains to be seen.

Court Report

Was this the stand-out statement from Chair-Elect of the Bar Council Mark Fenhalls QC’s Inaugural speech earlier this week regarding the quickest way to improve the state of the criminal justice system?

Pay barristers who work in the criminal courts a reasonable rate for the work they do. And stop requiring them to do huge amounts of work for nothing’.



COMMENT by Derek Sweeting QC, Chair of the Bar Council

Today’s TheCityUK report ‘Legal excellence, internationally renowned: UK legal services 2021’ shows the vital, £29.6bn contribution made by UK legal services to our national economy. It is a reminder of the global strength of our legal sector and the adaptability of barristers, solicitors and all those who work in law in the face of unprecedented challenges. English common law continues to be the foundation of legal systems around the world and the most widely chosen law to govern international commercial transactions. Our courts remain among the most appealing and trusted across the world.

 “The Bar Council’s own analysis of barristers’ income for 2020 echoes the findings of TheCityUK report. The latest figures from the Bar shows that the profession’s reach is growing beyond England and Wales. Over the last 15 years to 2020, barristers’ total earnings from overseas work has tripled from just over £114m in 2005 to more than £394m last year, despite the pandemic. This underlines why it is so important for our economy that the Bar Council, along with partners such as TheCityUK, continues to promote our global legal services.”

TOPIC: The possibility of prison faced by multi-millionaire Frederick Barclay after failing to pay a £50m divorce settlement to his former wife after a High Court battle

COMMENT by Henry Hood, Partner and Head of the Family department at Hunters Law.

“Contempt proceedings are one of the means by which the Court sanctions litigants for not doing as ordered. The possible punishment is substantial to include imprisonment and for that reason the threshold of proof required is the criminal standard (beyond reasonable doubt) rather than the civil standard (balance of probabilities).

“The directions hearing this week was heard by the same judge who had officiated at the final hearing and who has already criticised Mr Barclay in his litigation conduct.”

COMMENT by: Howard Ricklow, Partner and media lawyer at Collyer Bristow

Taylor Swift signed her record deal with Big Machine when she was just 15. As is usually the case, Big Machine, a Universal company, owns the copyright in the sound recordings and can generally do what it like with them. In fact, it sold her albums to Ithaca Holdings in 2019, a company owned by Scooter Braun, who is Arianna Grande and Justine Bieber’s manager. 

Swift has repeatedly accused Braun of bullying her and was angry when Universal sold her recordings. She claimed she was trying to buy them herself but was ignored. Since then, Braun has sold the recordings for US$300m to another company, Shamrock Holdings. 

To ensure that royalties do ‘belong with me’, she has decided to re-record all her albums, looking to prevent Braun from profiting from the exploitation of the recordings.

As is commonly the case, Swift would have been prevented from re-recording the songs under the terms of “Re-recording Restrictions” under the deal with Big Machine. Typically, however, they would last between three to six years, so she is broadly free to re-record.

An obstacle to that may be if the co-writers of her songs objected to her re-recording them. That too is unlikely since under both US and UK copyright practice once a song has been recorded then generally anyone could record covers of those songs.

She could go further and put pressure on broadcasters and streaming services to only play her new recordings, reducing revenues from her earlier recordings. Fans have already started to block her old songs on streaming platforms and at least one major radio station has said it will no longer play her earlier recordings.

Swift has shown the power recording artists increasingly have over their music, the dissatisfaction with contracts signed when very young, and the steps they are prepared to take to ensure they own the rights and royalties of the music they create.”



The Impact of the proposed pre-Xmas strike at Tesco by Lucy Flynn

Industrial action happens when trade union members are in a dispute with their employers that can’t be solved through negotiations and members vote in favour of industrial action via a ballot. Trade Union members at four Tesco depots have already voted to strike if the ongoing pay negotiations do not result in an agreed pay rise, the results for the remaining five depots are expected this week.

Members have the right to vote before their trade union asks them to take industrial action. Members do not have to strike and can’t be disciplined by their trade union for refusing to participate. If a trade union fails to comply with the law on taking strike action, the employer may have grounds to apply for an injunction to prevent the strike.

Members who do strike following a properly organised ballot cannot normally be dismissed for doing so, unless the trade union has not complied with the law on taking industrial action – however, members on strike are not entitled to be paid and the period spent on strike may break their continuity of employment.

Striking is extremely disruptive to business, results in no pay for members and as a negotiation tactic can have devastating effects on both employee and public relations.

Instead, careful negotiations conducted by key people with the requisite skills and decision-making powers are key, as is; –

  • Maintaining empathy
  • Staying positive and purposive
  • Listening to, understanding and respecting the opposing view
  • Communicating and engaging effectively with the workforce
  • Focussing on mutually beneficial outcomes”

Lucy Flynn is Director in the Employment Team at Beyond Group



Andrew Pavlovic has joined CM Murray LLP as a partner specialising in Solicitors Regulation Authority (SRA) professional discipline and regulatory work.

He was previously with Russell-Cooke for 11 years where he specialised in professional discipline and regulatory investigations.

Andrew Pavlovic

Recognised by Legal 500 UK 2021 & 2022 as a “Rising Star” in the field of professional discipline, Pavlovic has substantial regulatory experience, having acted at his previous firm for the SRA over several years including obtaining injunctions for the high-profile case of The Law Society (Solicitors Regulation Authority) v Dixit Shah (AKA Sanjay Shah) [2014] EWHC 4382 (Ch), which was  described as “unprecedented” and “ground-breaking” by the legal press.

“Andrew’s vast regulatory and professional discipline experience is a strong and very important strategic addition to our practice – providing a full spectrum of support to our clients, and an important step forward in our story of continued growth.”said Clare Murray, Founder and Managing Partner of CM Murray LLP,

Alex Rodger has joined the Leeds office of specialist pensions law firm Arc Pensions Law, as a partner.

Alex Rodger

Rodger joins from Womble Bond Dickinson, where he advised trustees and employers in the private and public sectors on all pension scheme matters. He has over 25 years of experience advising on corporate sales and reorganisations, TUPE transfers and associated issues such as Beckmann rights, section 75 debts and the Regulator’s powers. He has particular expertise in relation to scheme mergers, member complaints, administration errors and buy-outs and buy-ins.

“We’re delighted to announce another step in Arc’s continuing growth, to meet increasing client demand across the country,” said Anna Rogers, senior partner. “Alex brings a wealth of experience that further strengthens the extensive capabilities of our team. We look forward to working with him.”

Arc Pensions Law was founded in June 2015 and is the first specialist pensions law firm to be launched in over 30 years.




CSFI logo_blue
The City post-Brexit: Threats and opportunities. A monthly discussion, with Barney Reynolds (Shearman & Sterling) and Kay Swinburne (KPMG)


Why you should watch: This month, there continue to be concerns about just how much business can be conducted through subsidiaries of UK-based commercial banks in the EU27, but most institutions seem to be finding some sort of accommodation. The UK’s Wholesale Markets Review also seems to be heading towards a degree of harmonization with the EU – at least in the short to medium term. But there are concerns about UK firms’ relations with their regulators – and the broad discretion that regulators have. What both of our speakers share is a strong sense that the City’s future doesn’t just depend on Europe. There’s a wider world out there – and we need to focus on it. 

Moderator: Andrew Hilton (Director, CSFI) 
Barney Reynolds is Global Head of the Financial Services Industry Group at Shearman & Sterling in London. 
Kay Swinburne is Vice-chair for Financial Services at KPMG UK. She was previously, for ten years, a Conservative MEP (for Wales), and was latterly Vice-chair of the ECON Committee. 

Highlights from last week: 10-minute Explainer: The Bradley Jones case with Alexandra Carn (Keystone Law). Watch here





Tax Aspects of Litigation Finance

In our next installment, Cadwalader partner Mark Howe and Phil Balzafiore, Head of Tax for Tetragon Financial Group, discuss interesting and cutting-edge issues about the tax aspects of this high-yield, and potentially high-risk, asset class, including:
What is it and what do tax lawyers care about? 
Various forms of financing, including straight-up loans, partnerships, outright sales and pre-paid forwards
Tax consequences and tax trade-offs for investors and law firm borrowers, as well as mitigation considerations   
As you listen, view the companion slide deck summarizing the key themes of the conversation. 

Having trouble downloading? Try listening here.





And if you have enjoyed this edition do pass it on to friends and colleagues.


Share your thoughts