Daniel joined the firm in 1998 and has been a Partner since 2004. Until April, he was Chair of the Employment department and sat on the Management Board. Daniel’s fee earning work includes advising on complex contentious and non-contentious employment matters and, as Chair of Employment, he oversaw substantial growth of the firm’s market-leading Employment practice.

Daniel serves as Managing Partner supported by an Executive Partner team of Johanna Walsh and Daniel Levy alongside the Chairs and other senior management, including the Operations Board. In addition to supporting Daniel in the management of the firm and the delivery of its strategic objectives, the Executive Partners will continue to advise and support their clients without change.

Johanna Walsh leads the White Collar Crime and Investigations team, as well as one of two divisions in the Dispute Resolution department. She joined the firm as a partner in January 2019 and sat on the firm’s Management Board for five years until 2025. 

Daniel Levy leads the Real Estate Litigation team and is Division Head of Property Litigation and Construction. He joined the firm in 2006, founding and leading the Real Estate Litigation team. He has sat on the Management Board since 2025 and, for the past two years, has served as Partners’ representative on the Operations Board. 

Daniel Naftalin, Managing Partner of Mishcon de Reya, said:

“I am very pleased to be taking over as Managing Partner and very proud that my partners put their faith in me to lead this exceptional firm. I care deeply about Mishcon de Reya, its people, what it stands for, and its place in an increasingly competitive market. Over the last few months, I have been working with my team to consult and develop our strategy to face our challenges and thrive. I was involved in the creation of our 2030 vision and our three pillars of private, real estate and innovation are fundamental to how I see the firm succeeding. 

“I want to guide Mishcon de Reya to a successful, profitable, and sustainable future. I want it to remain a values-led firm that rewards hard work and excellence and that people are proud to work for and to recommend. My team and I will work tirelessly to ensure that the firm is even stronger at the end of my tenure than it is today.”

Paying tribute to his predecessor James Libson, Daniel said: 

“James epitomises everything that is special about Mishcon de Reya, someone who is passionate about the law and has blended that with an exceptional commercial and strategic vision of what it takes for this firm to succeed. He has been involved in so many of the cases that have made us great and I am delighted that the Board has asked him to take on the honorary title of Senior Partner and that we will all continue to benefit from his extraordinary wisdom and love for this firm.”

Following Daniel’s election as Managing Partner, the Employment department elected partner Susannah Kintish as Chair of the Employment department from 1 April 2026.

Before founding Yoto, Ben established music website dotmusic.com, which he later sold to Yahoo!, and co-founded media marketplace 7digital in 2004. He led 7digital until it went public in 2014, building experience across digital music, technology and entrepreneurship. Alongside his role at Yoto, he is a non-executive director at Pimoroni and an angel investor in businesses including Permutive and Causaly. 

A father of two, Ben is passionate about encouraging children’s independence and draws inspiration from Montessori principles of child development. He leads Yoto’s growth with the ambition of bringing screen-free learning and play to more children around the world. He enjoys creating stories with his family using Yoto’s Make Your Own cards and hearing how its products support children’s confidence, imagination and learning.

Charlie commented on HMRC’s move to assign dedicated tax compliance managers to billionaires with a UK tax footprint, as the tax authority seeks to build a clearer picture of individuals’ assets, investments, connected businesses, trusts and other entities.

Speaking about the increased scrutiny, Charlie noted that clients are already being contacted directly, as well as through their registered agents, with significant requests for information, which is causing concern. He said: “We are already seeing clients being contacted directly, as well as through their registered agents, with significant requests for information. Unsurprisingly, that is causing some concern. This looks to be part of a broader move towards greater scrutiny of the affairs of the very wealthy.”

In The Telegraph, Charlie highlighted the breadth of information being sought by HMRC, and he added that “clients are wary that once HMRC starts pulling at a thread, they don’t stop.”

In further commentary for Bloomberg, Charlie discussed concerns around the scope of HMRC’s requests and the importance of taking advice before responding. He said: “Some clients are seeking advice on whether they are legally required to provide everything HMRC has requested. It's really important to take advice early: sometimes the sensible approach is not simply to hand everything over automatically, but to understand what HMRC is entitled to ask for.”

Read the coverage:

HMRC Assigns Tax Compliance Manager to Every UK Billionaire – Bloomberg (subscription required)

HMRC assigns tax compliance managers to keep tabs on billionaires – The Telegraph  (subscription required)

UK Billionaires Push Back After HMRC Seeks More Tax Information – Bloomberg (subscription required)

HMRC clampdown on Britain's billionaires as tax compliance managers to keep tabs on wealthiest – GB News

Introduction

As outlined in Part 1, AI-driven reputational threats take many forms – from deepfakes and voice cloning to coordinated fake review campaigns and bot-driven harassment. Each can cause serious and rapid harm, and each raises distinct legal questions. There are not (yet) specific rights or remedies under English law targeted at AI-generated content. However, the existing legal framework is more versatile than is often assumed, and offers a range of tools – both established and emerging – to those who act decisively.

This section provides a guide to the key legal levers available, covering traditional causes of action, practical enforcement mechanisms, and the developing question of liability for harms caused by AI systems themselves:

Harassment

Where AI-powered bots are deployed to harass an individual or business – through coordinated pile-ons, doxxing or mass false claims – the Protection from Harassment Act 1997 may provide injunctive relief and damages. Courts have shown a willingness to extend harassment principles to coordinated online campaigns, and the fact that the campaign is AI-assisted does not diminish the legal exposure of those who deploy or direct the bots.

AI forensic tools can be used to assess the likelihood that material is authentic or AI-generated, strengthening the evidential foundation for any claim.

Defamation and consumer protection

A claim in defamation may lie against the publisher of a fake recording, a fabricated quote or AI-generated fake reviews. AI-assisted review bombing – where fake reviews are generated at scale – may also give rise to claims under consumer protection legislation, which prohibits fake reviews. Platforms' own terms of service may require removal, and injunctive relief may be available to prevent ongoing harm.

Data protection and misuse of private information

Where AI tools are used to process or leak private information, data protection law – in particular the UK GDPR and the Data Protection Act 2018 – may be engaged, giving rise to claims against the data controller responsible for the breach.

The tort of misuse of private information remains a powerful tool where private information is published or disseminated without consent, regardless of whether AI was the vehicle for obtaining or generating it – for example, against someone who reposts doctored intimate images or fabricated medical records.

Disclosure orders

Where the identity of the person responsible for harmful AI-generated content is unknown, it may be appropriate to seek a Norwich Pharmacal order requiring a platform or third party "mixed up in the wrongdoing" to disclose identifying information. This can be a technically and jurisdictionally complex exercise, particularly where the relevant platform is based outside the United Kingdom.

We work with our Cyber & Complex Investigations team and specialist contacts to trace and identify sources of AI-generated harmful content, navigate cross-border challenges and, where there is technical evidence that content is AI-generated, deploy that analysis proactively in correspondence with platforms to accelerate takedown.

Online Safety Act 2023

The Online Safety Act 2023 introduces new duties on platforms to act against illegal content – including content that is false and likely to cause psychological harm, and non-consensual intimate image deepfakes. Platforms' obligations under the Act can be invoked as part of a targeted takedown strategy. Ofcom's forthcoming regulatory regime will, over time, increase accountability for platforms that fail to act on harmful AI-generated content.

AI liability – an emerging question

A currently untested question in this jurisdiction is whether a claim arises where an AI chatbot generates a defamatory response or repeats private information scraped from the public domain. In a recent legal statement, the UK Jurisdiction Taskforce (UKJT) concluded that, since AI cannot be treated as a legal person, harms caused by false AI-generated statements would in most cases give rise to negligence claims against the developers of the relevant AI model or tool – focusing on the human decisions behind its design, testing and deployment – rather than claims in misstatement, defamation or deceit.

It remains to be seen how and where liability falls for harms caused by AI. In the meantime, there are numerous ways to target the publication – including repetition – of AI-generated content that is unlawful. The mainstays of reactive as well as proactive reputation protection still apply, even if monitoring reputational risks and preparing for the truth to be challenged need to be more sophisticated than ever.

How Mishcon can help

Mishcon's Reputation Protection & Crisis Management team brings together expertise across defamation, privacy, harassment and data protection. We use AI-powered monitoring to identify threats in real time, as well as sophisticated technology to assess whether content has been AI-generated. 

Our proactive offering includes advising on vulnerabilities in protocols and policies, developing bespoke crisis plans and running simulation exercises. Our reactive offering includes engaging with publishers and platforms to seek corrections and takedowns and, where necessary, formal legal action. We work in close collaboration with colleagues across the firm – including in Cyber & Complex Investigations, Intellectual Property and Fraud – to provide a bespoke and comprehensive response.

In brief:  

• Companies House and the Insolvency Service issued a warning in September 2026 to directors to verify their identities following the Insolvency Service's first prosecutions for failure to comply with the new provisions of the Companies Act.
• Since 18 November 2025, new directors have been required to verify their identity to incorporate a company or to be appointed as a director of an existing company. 
• Since 18 November 2025, new PSCs have had a 14-day window to submit a statement confirming they have verified their identity. 
• Existing directors and PSCs are subject to transitional deadlines, which differ depending on the role the individual holds.  
• The requirements also apply to directors of overseas companies with a registered UK establishment. 

How can an individual's identity be verified? 

• Individuals can verify their identity with Companies House through GOV.UK One Login, or through an Authorised Corporate Service Provider (ACSP).
• For anyone who has a biometric passport from any country, verifying their identity directly via Companies House is likely to be the easiest route.
• For more information on the routes to verification, please see our April 2025 briefing: Companies House reform next steps.

Once an individual's identity is verified, they will receive a personal code from Companies House. The code will need to be provided with a verification statement confirming they have successfully verified their identity for each company role they hold. The timing for providing the code differs for directors and PSCs and (for PSCs) will also depend on whether the individual holds both director and PSC roles.  

Timing for directors 

Since 18 November 2025, new directors have been required to verify their identity to incorporate a company or be appointed to an existing company. Existing directors must confirm they have verified their identity at the same time as they file their next annual confirmation statement, during the 12-month transition period ending 17 November 2026. 

An individual who acts as a director without having had their identity verified commits an offence, although technically this does not affect the validity of their appointment as a director or their actions while unverified. There is also an obligation on the company to ensure that an individual does not act as a director unless their identity is verified; contravention is an offence subject to a fine. The Insolvency Service's recent prosecutions show that the requirement for the company to ensure unverified individuals do not act as directors is being enforced against the company's other directors.

Timing for PSCs 

The timing of the requirements for PSCs depends on whether the individual is already either a PSC or a director. For each company in relation to which a person has a role: 

• For an individual becoming a PSC for the first time after 18 November 2025, the person must provide their personal code within 14 days of being added to the Companies House register. 
• If the person is already both a director and PSC, the person must provide their personal code in the company's next confirmation statement (as director) and provide it separately within 14 days of the company's confirmation statement (as PSC). 
• If the person is an existing PSC but not a director of the same company, they must provide their personal code within 14 days of the first day of their birth month. For example, if the date of birth is shown on the register as August 1990, the 14-day period would have started on 1 August 2026. 

Since only a natural person's identity can be verified, where a "Relevant Legal Entity" (RLE) qualifies as a PSC of a company, the identity of a relevant officer of the RLE will need to be verified. However, this requirement has not yet come into force. 

Overseas companies with UK establishments

The ID verification requirements have also been extended to directors of overseas companies that have a registered UK establishment at Companies House. These requirements came into force on 18 November 2025.

This means that:

• An overseas company is required to confirm that its directors have had their identity verified on opening of a UK establishment and on the appointment of any new directors after that.
• All directors of overseas companies are required to confirm during the transition period that they have had their identity verified. The transition period begins when the changes came into force and ends on the first anniversary of the date that the UK establishment was opened.
• As is the case for UK companies, individuals, whilst in the UK, are not able to act as a director of the overseas company in respect of the affairs of the UK establishment unless that individual has had their ID verified.

Insolvency Service prosecutions

A key insight from the Insolvency Service's first prosecutions for ID verification failures is that directors can be liable for the actions of their co-directors. Jill White and Marc Dillon were both directors of White (Reading Properties) Limited. White was prosecuted for acting as a director despite not verifying her identity, completing verification nine months after the deadline. Dillon verified his own identity in time but was prosecuted for failing to take reasonable steps to prevent White from continuing to act as a director.

The fines were relatively modest, but for directors the stigma of a criminal conviction is likely the greater deterrent.

These prosecutions are a timely reminder that verification is not a box-ticking exercise for each individual alone; boards should also check that every director and PSC has completed the process.

Next steps 

With the one-year anniversary of ID verification requirements approaching in November 2026, it is essential that any directors or PSCs who have not yet verified their identities do so within the transition timeframes applicable to their company. The first prosecutions by the Insolvency Service make clear that non-compliance carries real consequences. 

How Mishcon de Reya can help

Our Corporate Department advises companies, directors and people with significant control (PSCs) on their obligations under the Companies Act, including the recent and upcoming Companies House reforms. We can assist with understanding the applicable deadlines, navigating the verification process and assessing any risks arising from non-compliance. We also advise boards and overseas companies with UK establishments to support ongoing compliance with the new regime.

In our response, we have drawn on our experience litigating claims including Sainsbury's interchange fee claims against Mastercard through to the Supreme Court, the lead claimants in the Second Wave Trucks Proceedings, the first collective proceedings action to reach trial in the Competition Appeal Tribunal (on behalf of Justin Le Patourel), and the pending collective proceedings against Booking.com brought by Chris Warner, to the effect that:

• The prohibition on damages-based agreements (DBAs) in opt-out collective proceedings should be lifted, aligning the interests of law firms and the class, unlocking meritorious claims that currently fall below the threshold at which third-party funders are willing to invest, and increasing competition in the funding market – while third-party litigation funding should remain available alongside DBAs.
• An absolute suitability test, or a standalone statutory cost-benefit or aggregate-damages requirement, should not be introduced at certification, since the Supreme Court in Mastercard v Merricks correctly held that certification is not the stage for a merits mini-trial, and existing tools – including the availability of strike-out applications – already provide an effective and proportionate filter.
• The current asymmetry between class representatives' constrained litigation budgets and defendants' largely unconstrained spending should be addressed through updated Guide provisions on costs budgeting and disclosure of material cost overruns, together with more robust case management, rather than by amending the Tribunal's Rules.
• A simplified, presumption-based approach to CMA-directed or voluntary redress schemes should not be pursued without safeguards to ensure fair and adequate compensation, given that such schemes have to date delivered materially lower outcomes than litigation can achieve.
• The Tribunal's new webpage listing damages awards and settlements is a welcome step, and defendants should play a more active role in distribution, including by sharing customer data and making direct payments, with undistributed sums directed to charity.

Overall, we consider the regime remains in its infancy and have urged the Government to prioritise a targeted approach focused on clarifying and codifying settled practice, rather than pursuing wholesale reform – save for the introduction of DBAs, which would represent a fundamental and welcome change.

A copy of our submission to the Government can be accessed here.

AI has transformed how content is produced, consumed and verified. Reputation is no longer shaped primarily by news articles or social media posts. AI-powered search increasingly shapes reputation through AI-generated summaries – not a list of links, but responses that distil vast amounts of information into what appears to be an authoritative answer. 

A user might ask a chatbot: should I invest in X? Is Y reliable? What does Z not want me to know? The answer may seem definitive, but it will not necessarily be nuanced, accurate or balanced – and the underlying sources, such as reviews, may themselves be AI-generated. 

The threats AI poses to reputation are varied and rapidly evolving: 

• Deepfakes and voice cloning – used to falsely portray endorsements or controversial views 
• AI-assisted review bombing – coordinated fake reviews that distort a business's online profile 
• Deepfake intimate imagery – created and circulated without consent 
• AI-powered bot campaigns – deployed to harass, dox or overwhelm targets with false claims at speed and scale 

Each requires a tailored response, combining legal remedies, platform engagement and strategic communications. 

Yet the picture is not entirely bleak. AI also offers powerful tools for those seeking to protect their reputation: real-time media monitoring to detect emerging threats early; sentiment analysis to anticipate shifts in public perception; content verification technology to assess authenticity and support takedown requests; and analytics to distinguish genuine feedback from coordinated inauthentic activity. 

Those who invest in understanding and deploying these tools proactively will be best placed not only to defend their reputation, but to shape them. 

Leveraging these opportunities requires a clear strategy – and the starting point is getting the fundamentals right: 

Step 1: Get your own house in order 

• In many ways, the old methods still stand firm. Minimise obvious risks such as gaps in compliance or internal policies; ensure you have a robust crisis protocol; and actively seek out – and address – latent vulnerabilities. You cannot eliminate the risk that people – or chatbots – will tell outright lies, but you can be as vigilant and proactive as possible about homegrown crises. 

Step 2: Protect your records 

• AI software is getting ever better at forging information, which makes verification harder. When the truth is distorted or an unhelpful narrative takes hold, it is crucial to be able to point to trusted sources. Keep original documents and contemporaneous records, and make them searchable so they are readily available to counter false statements. 
  
  We deploy AI-powered content verification tools on behalf of clients to assess the likelihood that material is authentic or AI-generated, strengthening the evidential basis for any challenge. 

Step 3: Monitor continuously 

• Always-on monitoring is a sensible investment – it allows you to respond swiftly to a serious threat and to prioritise efforts on the greatest risks. AI-powered media monitoring tools are designed to sift through large amounts of data, and we deploy these on behalf of clients to identify emerging threats in real time. Alongside the technology, you need a clear protocol: what are the red lines, which concerns to escalate and how. 
  
  For businesses, monitoring must also extend to review platforms and social media, where fake review campaigns and bot-driven pile-ons can cause severe damage in a very short time. The monitoring framework should be configured to capture unusual spikes in review activity or coordinated online behaviour, as well as traditional media coverage. 

Step 4: Take targeted action 

• Escalating a concern might involve engaging with publishers – whether established media or individual posters – to challenge false allegations or deepfake images. In parallel, content can be flagged to social media platforms and search engines as unlawful or in breach of their terms and conditions. The major platforms all have policies and removal tools covering deepfakes, AI-generated content and misinformation. 
  
  Where there is technical evidence that content is AI-generated, we deploy AI detection technology to assess this and present that analysis to platforms – which can materially accelerate the takedown process. Depending on the content and context, it may also be appropriate to notify the police.

These practical steps – preparation, monitoring and targeted action – form the first line of defence. Part 2 sets out the key legal levers for responding to AI-driven reputational harm, covering traditional causes of action, practical enforcement mechanisms, and the developing question of liability for harms caused by AI systems themselves. 

How Mishcon can help 

Mishcon's Reputation Protection & Crisis Management team brings together expertise across defamation, privacy, harassment and data protection. We use AI-powered monitoring to identify threats in real time, as well as sophisticated technology to assess whether content has been AI-generated.  

Our proactive offering includes advising on vulnerabilities in protocols and policies, developing bespoke crisis plans and running simulation exercises. Our reactive offering includes engaging with publishers and platforms to seek corrections and takedowns and, where necessary, formal legal action. We work in close collaboration with colleagues across the firm – including in Cyber Risk & Complex Investigations, Intellectual Property and Fraud – to provide a bespoke and comprehensive response. 

Simon also warned that the biggest risk of not getting luxury assets revalued is the financial shortfall in the event of a loss, theft or damage claim. Valuations that are not up to date can also lead to disputes when claiming. “Insurers may challenge a claimed value if it isn’t supported by a recent appraisal, and the burden may fall on the collector to provide evidence of value at the time of loss. This is obviously difficult to do if documentation isn’t current, and this can slow down or reduce a payout considerably at the exact moment a collector may need financial certainty.”

Simon's best piece of advice he’d give to collectors? “Authentication should be seen as the start of a discipline, not the end of one. Valuations for insurance purposes should be revisited every two to three years – or sooner if there are any significant market movements.”

Read the article in full

Elliott is a property entrepreneur and hospitality specialist whose career has spanned investment, real estate, flexible workspace and events. 

Elliott began his career in property and investment, including a period at Blackstone, before moving into the rapidly evolving world of hospitality led work and event space. 

He played a key role in bringing New York based Convene to London and went on to become CEO of Cavendish Venues. 

Elliott has now embarked on his latest venture, TOGETHER — a new hospitality-led meetings and events business that aims to rethink how people come together in the workplace and how landlords can create more valuable, experience-led buildings. 

• In a significant decision for holders of D&O insurance, in Liberty Managing Agency Ltd & Ors v Chedid & Anr [2026] EWHC 2354 (Comm) the English Commercial Court rejected arguments that an insurer could avoid providing cover for defence costs under a D&O policy before fraud was established.
• A non-avoidance clause in the policy meant that insurers remained obliged to advance defence costs until the fraud was either admitted, or established by a final decision of a court, tribunal or regulator.
• Such a clause was not contrary to public policy – the principle that "fraud unravels all" applies to proven fraud but does not prevent parties from agreeing how unproven allegations of fraud should affect their contractual relationship in the interim.
• However, given the importance of the issue, permission to appeal has been granted.

Background

In 2024 two former officers of the energy services company Petrofac were charged by the Serious Fraud Office with various bribery offences. Their defence costs were initially paid by insurers of Petrofac's primary D&O policy and a first excess policy, each of which had a £15 million limit of indemnity. However, shortly before trial it became clear that the indemnity available under those policies would be exhausted, and that further funding of defence costs would need to be provided by the insurers of a second excess layer in Petrofac's programme.

Unfortunately, insurers of the second excess layer purported to avoid the policy on the basis of allegations of fraudulent misrepresentation and fraudulent non-disclosure relating to the alleged bribery. The defendants, who disputed the as yet unproven allegations, contended that this imperilled their ability to defend themselves and so the court was asked to determine the issue on an expedited basis.

The issues

Construction of the policy

Avoidance of an insurance policy by an insurer for fraudulent misrepresentation or fraudulent non-disclosure is, at common law, a "self-help" remedy – the insurer is not required to obtain a court decision before declining to perform its obligations under the policy, but it runs the risk that it will ultimately be held liable to perform.

However, the defendants contended that the position was altered by the presence of a non-avoidance clause incorporated into the second excess policy which provided that:

The Insurer shall not avoid this policy … on the grounds of misrepresentation or non-disclosure, except with respect to:

1. an Insured, who has fraudulently misrepresented or fraudulently non-disclosed material information prior to the conclusion of this contract …

where such fraudulent conduct is established by a final decision of a court, tribunal or regulator or by a formal written admission of the Insured.

As a matter of construction, Mr Justice Jacobs accepted that this meant that, where there was no admission, the insurer could only avoid for fraudulent misrepresentation or non-disclosure once there was a final decision by a court, tribunal or regulator. That was the clear and only realistic meaning of the words used in the clause, and was consistent with other provisions of the policy, particularly an exclusion for loss arising out of a deliberately dishonest or deliberately fraudulent act by the insured.

Noting that such clauses are a common feature of D&O policies, the judge further observed that this construction made good commercial sense, ensuring that directors and officers would not be deprived of defence costs until an objective determination as to their conduct has been reached.

Public policy

Insurers went on to contend that, in any event, since, as a matter of public policy, parties cannot agree provisions which exclude the consequences of their own fraudulent wrongdoing, the non-avoidance clause could not have the effect for which the defendants contended.

While Mr Justice Jacobs accepted the established principle that "fraud unravels all", in his view the relevant authorities only addressed the consequences of contractual clauses in the context of proven fraud. He did not consider that there was an English case which decided that public policy prevents the parties from reaching agreement as to how their contract is to operate at a time when there is an unproven allegation of fraud, which is to be determined in the future.

Here the parties had not sought to alter any of the consequences of fraud, if ultimately proved, but rather substituted the self-help aspect of avoidance with a requirement that an objective decision must be reached first. If fraudulent misrepresentation or non-disclosure was proved, insurers would still be able to avoid the policy and recover any defence costs already advanced. In the judge's view there was not a public policy which should prevent them from reaching such a commercially sensible, "pay now, sue later" agreement.

In reaching this decision, the judge noted that there is no public policy reason which precludes an agreement to indemnify against the costs of meeting allegations of criminal wrongdoing, including alleged bribery.

Mr Justice Jacobs therefore concluded that the insurers remained obliged to advance the defendants' defence costs.

Conclusion

A successful outcome for insurers in this case would have sent shockwaves through the D&O market. As the judge noted, individual directors frequently lack the means to properly defend themselves against serious criminal charges. The availability of cover for defence costs thus lies at the heart of D&O cover, and is one of the reasons why it is so valued by policyholders. Indeed, the recent introduction of the "failure to prevent fraud" offence under the Economic Crime and Corporate Transparency Act 2023 has only bolstered interest in D&O cover.

Mr Justice Jacobs' decision, confirming that pursuant to a non-avoidance clause of the type seen here, insurers will be obliged to advance cover for defence costs prior to any admission or final decision establishing the fraudulent conduct, is therefore welcome news for the time being. However, recognising the importance of the issues, permission to appeal was granted - this may not be the end of the story quite yet.

In the meantime, the decision is an important reminder to policyholders to review cover at both the primary and excess layers, to ensure that it provides adequate protection.

• On 16 September, Mishcon de Reya’s Sports Group brought together leading lawyers, executives and industry practitioners for its Annual Sports Conference, Game changers: Law, power and the business of modern sport.
• Across three panels, speakers examined the legal, regulatory and commercial forces reshaping modern sport, with discussions ranging from the role of legal challenges in determining sporting outcomes, changes to football’s financial rules and how changing fan behaviour is evolving the media landscape.
• Below is a summary of each panel and our top three takeaways.

After the final whistle or lap, can the law change a sporting result?

This panel considered a deceptively simple question: once the final whistle has blown or the chequered flag has fallen, can lawyers, regulators or the courts change the result? The panel, comprised of Otmar Szafnauer (a former Formula 1 Team Principal), Caroline McGrory (Chief Legal Officer of Cadillac F1), Nick de Marco KC (Blackstone Chambers) and Kavan Bakhda (Partner and Head of the Sports Group at Mishcon de Reya), considered the various different stakeholders and views that are considered before a legal challenge to a sporting result is advanced.

Key takeaways

• Sporting finality is important, but not always absolute. Challenges may arise where there are questions about the interpretation of regulations, procedural fairness, governance or the integrity of a competition.
• Legal and commercial strategies are closely connected. Decisions about whether to challenge a ruling are influenced not only by the legal merits but also by points, prize money, sponsorship and the wider future of a team or athlete.
• Challenges can have consequences beyond a single result. A dispute may test the scope of a governing body’s powers, expose weaknesses in regulations and influence how future rules are drafted and enforced.

Financial (un)fair play in football

This panel, comprised of Robert Griffiths, Partner (Mishcon de Reya) Jane Mulcahy KC (Blackstone Chambers) and John Pelling Senior Director Football Finance (West Bromwich Albion Football Club), examined football’s changing financial regulatory landscape, including profit and sustainability requirements, squad cost controls and the practical impact of regulatory proceedings on clubs.

Key takeaways

• Small financial margins can have significant sporting consequences. The extent of a financial breach may determine the severity of a points deduction, with potentially serious implications for a club’s league position.
• Compressed regulatory timetables create practical challenges. Clubs may have limited time to respond to a charge, gather evidence and prepare complex legal and accounting submissions.
• Financial cases are rarely straightforward. Issues such as amortisation and the treatment of particular costs can require extensive expert evidence and detailed consideration by the relevant panel.

Following the fans: how shifting fan behaviour is challenging sport’s commercial models

This panel, comprised of Richard McMorris, Partner (Mishcon de Reya), Sameer Pabari Media Rights Executive and Tom Burrows, Director of Media Rights (Relevent Football Partners), explored how changes in the way supporters explored how changes in the ways supporters discover, consume and engage with sport are affecting the industry’s established commercial models.

Key takeaways

• Fan behaviour is changing the economics of sport. Media rights remain central to the funding of sport, but changing fan behaviour is increasing the importance of alternative revenue streams and direct relationships with supporters.
• Media has a broader commercial role. Alongside generating rights revenue, media can help sports organisations build their brands, collect first-party data and support sponsorship and merchandise income.
• Reach and revenue must be balanced. The challenge is not simply to maximise short-term rights income. Competitions must also remain visible and accessible enough to attract and retain future generations of supporters.

Looking across the three sessions

Although each panel approached the industry from a different perspective, a common theme emerged: legal, regulatory and commercial strategy in modern sport can no longer be considered separately.

Changing fan behaviour affects the value and distribution of media rights. Financial regulations shape clubs’ sporting and investment decisions. Disputes about rules and results can determine points, championships, prize money and, in some cases, the future of a team or athlete.

Together, the sessions demonstrated how power in modern sport increasingly operates across the pitch, the boardroom and the courtroom.

How Mishcon de Reya can help

Mishcon de Reya's Sports Group advises rights holders, clubs, governing bodies, investors and sports businesses on disputes, regulation, governance, financial fair play, commercial agreements, sponsorship, intellectual property, data and strategic transactions.

To help you benefit from our specialist expertise, we are offering you a free 15 minute online session, where you can discuss with one of our team any follow-up questions you may have about the content.

• The FCA's non-financial misconduct rules came into force on 1 September 2026 and now apply to all regulated firms.
• Non-financial misconduct is no longer just an HR matter. Serious cases of bullying, harassment, sexual misconduct and violence are now regulatory compliance issues, carrying direct personal consequences for staff.
• Firms that have not already updated their disciplinary policies, investigation frameworks, fitness and propriety assessments and regulatory reference processes should treat this as an immediate priority.

What has changed?

The FCA's new rules and guidance on non-financial misconduct (that is, behaviour that is not of a clearly financial nature, such as bullying, harassment and violence) came into force on 1 September 2026. The new rules extends the FCA's conduct rules to non-bank firms, such as asset management firms, brokers and insurers, requiring them to address serious non-financial misconduct with the same rigour as financial wrongdoing. Serious cases of bullying, harassment, sexual misconduct and violence in the workplace now explicitly constitute breaches of the FCA's code of conduct across all regulated firms.

What the FCA non-financial conduct rules now require

Firms are now expected to treat non-financial misconduct as a regulatory compliance issue, not solely an internal HR matter. The rules capture conduct that is 'serious'; an as yet untested scale but we expect that seriousness will be influenced by the behaviours impact on the subject, the seniority of the person whose conduct is in question, and whether it forms part of a repeated pattern of poor behaviour.

The rules catch misconduct with a sufficient work-related link, which could include misconduct towards a colleague on the firm's premises, while working remotely on the firm's business, or at a work event organised by the firm or another organisation.

All staff subject to the FCA code of conduct, including senior managers, certified persons and conduct rules staff, should now treat a finding of serious non-financial misconduct as a breach of the code of conduct. For senior managers and certified persons, such a finding may also affect the assessment of their fitness and propriety, potentially jeopardising their ability to hold a regulated role, and will now be disclosed on regulatory references in the same way as financial misconduct.

Managers now carry direct accountability

With the rules now live, managers must take reasonable steps to protect staff from non-financial misconduct and to respond appropriately when it occurs. A manager who knew, or should have known, about misconduct within their area of responsibility and failed to act may themselves now be in breach of FCA rules and held personally accountable.

What firms should be doing now

Firms should expect an increase in formal investigations and should be prepared for those investigations to be more sophisticated, particularly where alleged misconduct occurred outside the workplace.

Firms that have not already done so should, as a priority, be acting on the following:

• Reviewing disciplinary, grievance and whistleblowing policies to expressly address non-financial misconduct and reflect the FCA's requirements.
• Checking that investigation frameworks can properly handle allegations of serious non-financial misconduct, including conduct occurring outside the workplace.
• Ensuring fitness and propriety assessments for senior managers and certified persons now incorporate non-financial misconduct considerations.
• Encouraging and enhancing a culture of accountability – proactively promoting an environment where concerns can be raised and inappropriate behaviour addressed.
• Adjusting regulatory reference processes to capture non-financial misconduct findings.

Our cross-firm expertise combining employment, regulatory and investigative expertise puts us in an ideal position to advise on the new regime. Please contact your normal Mishcon contact should you wish to discuss further.

• The High Court quashed the Office for Students' (OfS) £585,000 fine against the University of Sussex, finding the OfS had misdirected itself on the law of freedom of speech and academic freedom, failed to properly consider the University's Freedom of Speech Code of Practice and remedial policy changes, and acted with apparent bias and predetermination.
• In response, the OfS amended its guidance, Regulatory Advice 24, on 5 August 2026 to embed the Court's guidance: institutions' policies must now be read holistically, a policy's mere capacity to catch lawful speech is not enough on its own to found a breach, and evidence of remediation must be weighed before a finding is made.
• The OfS's new free-speech complaints scheme opened on 1 September 2026, allowing staff, academic post applicants, visiting speakers and non-student members (but not students) to bring complaints directly to the OfS, making it essential for providers to audit their policies against the revised framework.

On 5 August 2026, the OfS published amendments to its guidance on the regulation of freedom of speech and academic freedom (Regulatory Advice 24). 

The revisions were a direct response to the High Court's judgment in R (University of Sussex) v Office for Students, handed down on 29 April 2026, which quashed the OfS's decision to fine the University £585,000 for breaching its freedom of speech and governance conditions of registration. 

This article sets out:

1. What has changed in Regulatory Advice 24
2. The contextual background to those changes
3. The introduction of the OfS's new free-speech complaints scheme, which opened on 1 September 2026 and allows free-speech complaints to be taken directly to the OfS by staff, applicants for academic posts, visiting speakers and non-student members. 

The University of Sussex judgment

The case was the first judicial test of the OfS's approach to free-speech regulation. The OfS's investigation into the University began on 22 October 2021 following widely reported protests concerning Professor Kathleen Stock, a philosophy professor who ultimately resigned from the University amidst allegations of transphobia. The Court was careful not to adjudicate on the circumstances of Professor Stock's departure; however, the circumstances of her resignation were the catalyst for a three-and-a-half-year investigation into the University's Trans and Non-Binary Equality Policy Statement; its Freedom of Speech Code of Practice; and its scheme of delegation.

In March 2025, the OfS found the University had breached two of its registration conditions: (i) condition E1, the requirement to uphold freedom of speech and academic freedom principles, and (ii) condition E2, the requirement to operate in accordance with governing documents. It imposed its largest ever fine. However, the University brought a successful judicial review challenge in relation to the OfS's findings and the fine was quashed. 

Most fundamentally, the Court held that the University's Trans and Non-Binary Equality Policy Statement was not a "governing document" within the meaning of the relevant legislation, meaning the OfS had no jurisdiction to make the condition E1 finding at all. The Court also found that the OfS had misdirected itself on the meaning of both freedom of speech and academic freedom within the law: it had treated any restriction capable of catching lawful speech as sufficient to found a breach, when the OfS itself accepted that lawful speech could, in appropriate circumstances, be restricted. In relation to academic freedom, the OfS had wrongly treated the risk of disciplinary proceedings as equivalent to placing academics "in jeopardy of losing their jobs or privileges" – the actual statutory test. The Court further held that the OfS had failed to have proper regard to the University's Freedom of Speech Code of Practice, despite the OfS's own guidance in Regulatory Advice 24 acknowledging that the code of practice is an institution's "definitive and up-to-date statement" on free speech. It also held that findings of breach must consider whether alleged breaches have already been remedied before a decision is finalised, and the OfS's failure to consider the University's 2024 policy revisions – submitted some 10 months before the final decision – was unlawful. Damagingly, the Court found the OfS's decision was vitiated by apparent bias and predetermination: the evidence showed that the OfS had pursued the University as a deliberate test case, intended, in the words of its then chief executive Susan Lapworth, to "create clear compliance incentives and expectations" for the rest of the sector – an approach the Court held was "plainly the wrong starting point" for a fair investigative process. The judgment does not disturb the OfS's underlying jurisdiction to regulate free speech or its power to issue fines; rather, it directs how that power must be exercised.

The amended Regulatory Advice 24 and the new OfS complaints scheme

Regulatory Advice 24 was already in force when the judgment was handed down, and both parties agreed at trial that its three-step framework was the correct methodology, namely:

1. Is the speech lawful;
2. Are there reasonably practicable steps to secure it; and,
3. If the provider is interfering with the speech in any way, is that interference prescribed by law and proportionate. 

The Court's criticism was not of the framework itself, but of the OfS's failure to faithfully apply its own methodology.

The amendments published on 5 August 2026 revise the three-step framework to embed the Court's guidance directly into the OfS's practice. The updated guidance adds new paragraphs 16A and 16B clarifying the role of Article 17 of the Convention (the anti-abuse provision), adds a new illustrative example 24A, concerning restrictions on a medical student's political speech during a placement, and makes explicit clarifications on the scope of the duty and its interaction with the Convention. 

In substance, the revised framework now requires OfS decision-makers to: read an institution's governing documents holistically, rather than provision by provision, when assessing whether a policy suite protects lawful speech; treat a policy's mere capacity to catch lawful speech as insufficient, on its own, to found a breach; weigh evidence that a policy or code has already been remedied before finalising any finding; and apply the proportionality and "reasonably practicable steps" test rigorously at each stage of the analysis.  

The vehicle through which the amended Regulatory Advice 24 will now be tested against individual cases is the new OfS free-speech complaints scheme, which opened on 1 September 2026. Through the scheme, the OfS can now investigate complaints and make recommendations to institutions, including recommendations to pay compensation or alter processes. 

Practical implications for regulated institutions

For registered providers, the judgment and the updated guidance give rise to the following practical considerations:

• Free speech and equality-related policies should be read, and drafted, as a suite: an express safeguarding or proportionality statement in a code of practice may cure an otherwise vague restriction elsewhere in the institution's policy framework, provided the suite as a whole would be understood by an objective, reasonably informed reader to protect lawful speech. Institutions should ensure that their freedom of speech code of practice is prominently cross-referenced in any policy that may affect free speech.
• Disciplinary and equality policies should avoid vague or undefined restrictions on speech and should build in objective, legally grounded definitions.
• Institutions should also expect that a demonstrated willingness to revise policies in response to concerns, and evidence that a policy or code has already been remedied, are now factors the OfS must consider before making a finding of breach. Providers should therefore have robust processes in place for the ongoing review of policies, as appropriate, and should consider policies as living documents to ensure continued compliance.
• With the free-speech complaints scheme now live, providers should audit their current freedom of speech and equality policies against the amended Regulatory Advice 24 three-step framework in anticipation of individual complaints being tested against it. Providers should note that the scheme is not retrospective and that students are not eligible complainants, as they have their own separate complaints scheme – the new scheme is limited to staff, applicants for academic posts, visiting speakers and non-student members.
• Providers can reasonably expect that the new streamlined process of complaint will empower complainants to raise concerns confidently and therefore should ensure appropriate training and upskilling in the context of free speech complaints and the OfS Regulatory Advice 24.

Realising that many other healthcare professionals faced the same problem, Antonia and Jonny set out to create an effective hand cream without the harsh synthetic ingredients commonly found in skincare products. 

They launched Nursem in 2012 with a mission to support those who care for others. Through the Nursem Promise, for every product sold, the company provides a month’s worth of free hand care to a nurse, midwife or other NHS healthcare professional. Nursem has so far delivered around 750,000 months of free hand care and is on track to fulfil its one-millionth Promise.  

Alongside building the business, Antonia and Jonny are also parents to four children. 

What we will cover: 

• The remedy "toolkit": what remedies are available under English law 
• Liquidated damages, penalties and interest: what parties can and can't include in a contract
• Damages as the core remedy: the aim of damages, what claimants need to show and how damages are measured
• Termination: when does a right to terminate a contract arise and what steps does the terminating party need to take
• Equitable remedies (such as specific performance and injunctions) and the circumstances in which a court may grant these  
• Practical implications: what boards should be thinking about before and after things go wrong 

This series will bring together thought leaders and experts in the defence sector to explore the challenges and opportunities shaping the future of defence.

In this episode, we speak with Dave Ewing, Head of Technology Commercialisation at BAE Systems and lead of BAE Systems Launchpad, BAE Systems’ incubator for defence and dual-use technology companies. Having started his career as an engineer before qualifying as a patent attorney and moving into technology commercialisation, Dave brings a unique perspective on the intersection of innovation, intellectual property, venture capital and defence.

Drawing on his experience overseeing BAE Systems’ engagement with startups, SMEs and investors, Dave shares his views on how emerging technologies can successfully navigate the defence market and the role that major defence organisations can play in accelerating their adoption. 

Join us for a compelling discussion exploring what leadership really looks like when the pressure is on. Rupert will share stories, insights and lessons from a career spent navigating complex environments where judgement, courage and adaptability mattered most.

For anyone interested in leadership, influence, organisational culture, decision-making or personal resilience, this promises to be an inspiring and practical conversation with one of Britain's most respected business leaders.

Amanda said: "A potential shift in the standard could have significant implications for stakeholders who find themselves involved in a coronial process where these circumstances arise - often authorities or state-run entities are involved. The consultation is, however, an early step in the process - to assess opinion and gather information. There is no guarantee that changes will be made, nor is there an indication at this stage of a wider application to other forms of inquest conclusion."

Read the article in full

• On 9 September 2026, the Government announced details of the second phase of implementation of the Renters' Rights Act 2025, the Private Rented Sector database, rebranded by the Government as the 'Register your rental property' service.
• The new service will be introduced region by region from 15 December 2026. Registration will be a legal requirement, there will be an annual fee for each property, and failure to register may lead to enforcement action and a fine.
• This article examines what landlords need to know.

Who will need to register?

Landlords of assured and regulated (Rent Act 1977) tenancies will need to register both themselves and each property they let. Assured tenancies include all new assured periodic tenancies (APTs) and assured shorthold tenancies that automatically converted to APTs on 1 May 2026. Where there is more than one landlord, each landlord will be required to register themselves individually but can share the single entry for their jointly owned property.

Landlords of supported exempt accommodation, as defined in the Supported Housing (Regulatory Oversight) Act 2023, will not be required to register.

During the initial rollout, registration is required only for properties that are currently let or become let during the rollout period. Unoccupied properties do not need to be registered yet. A further requirement is planned under future legislation which will require unoccupied properties to be registered before they can be marketed for letting.

When does registration start?

The service opens on 15 December 2026, but the legal requirement is being introduced regionally. Once the regulations take effect in a particular region, landlords will have three months to register properties there.

The timetable is:

How do I know which region my property is in?

The registration timetable is based on the region in which the property is located, rather than where the landlord lives or has its registered office.

The regions listed in the timetable correspond to the nine established English regions, and to assist landlords, Schedule 1 to the draft PRS Database Regulations lists the local authorities falling within each region.

Landlords with properties in several regions do not have to wait for each regional start date. From 15 December 2026, they can choose to register their portfolio at the same time, provided each property is registered by the applicable deadline. 

How much will it cost?

There is no separate fee for landlords to register themselves. Instead, landlords will pay an annual fee of £65 for each property registered, with registration renewed each year. A landlord with ten registered properties would therefore pay £650 annually.

During the initial rollout, the fee will be pro-rated so that landlords required to register earlier do not pay more simply because their region comes first in the timetable.

What information will landlords need?

As well as information identifying the landlord, the government will require details about each property, including its address, ownership and dwelling type, number of bedrooms and whether it is currently let.

For occupied properties, landlords will also need information about the number of occupants and households, any HMO, additional or selective licensing requirements, whether the property is furnished, the rent charged and payment frequency, and whether rent includes utilities. 

Landlords will also be asked to provide health and safety information, including relevant gas safety, electrical safety and EPC documentation. Where an EPC records an energy efficiency rating below the minimum required level, information about any registered MEES exemption will be required. 

The Government has said that, in future, tenants "will be able to use the service to see if a landlord is compliant with key legal requirements, helping them make better informed decisions about where they rent". The Government will publish a list of the precise information that the public (and tenants) will be able to access at a later stage.

Can a managing agent deal with registration?

Even where a property is fully managed, the landlord must start and complete the registration process. An agent or property manager can be authorised to provide certain information on the landlord’s behalf (details to be published before launch), but responsibility for ensuring that all required information is provided remains with the landlord.

What happens if a landlord does not register?

Once the three-month registration window for a region has expired, local authorities will be able to take civil enforcement action (impose a fine) against landlords who have failed to register. Landlords should also be aware that it is a criminal offence to provide false or misleading information to the database, for which a local authority can impose a fine of up to £40,000.

The new service is intended to be an enforcement tool as well as a register. Councils will be able to use it to identify non-compliance, and part of the registration fee will fund local authority enforcement of the Renters’ Rights Act reforms. Once the wider scheme is complete, landlords and agents will need to quote valid registration details in any property advert or listing, and marketing a property without them will itself become unlawful. The Government has not yet confirmed the date this restriction takes effect.

What should landlords do now?

It is not yet possible for landlords to register (the database is not yet live), but landlords should use the period before December to get their records in order.

In particular, portfolio landlords may want to identify the applicable registration deadline for each property now and check that property, tenancy, licensing, rent and safety information is complete and readily accessible. It would also be sensible to review gas safety records, EICRs or EICs and EPC documentation before registration opens rather than discovering gaps during the registration process.

Landlords who rely on managing agents should also discuss who will collate the necessary information, while recognising that the landlord retains ultimate responsibility for registration.

The Government’s latest announcement is available here: Get ready: ‘Register your rental property’ service. Landlords wishing to receive further government guidance and announcements as soon as they are published can register on GOV.UK.

We are delighted to share a short highlights video from the evening, a quick reminder of the brands, conversations and atmosphere that make Style Gallery so special. 

We want to thank all our showcasing brands, including Otiumberg, Elsewhere Coffee, Kingdom Scotland, HERD, Equi London, Edeline Lee and Curated Beauty London. Guests were also treated to a complimentary nail bar by Ruuby.  

Following analysis which found that helpline enquiries relating to bullying and harassment between January and June 2026 were down by 3.7 per cent compared with the same period in 2025, Mark said the figures did not “necessarily mean that there has been a fall in bullying and harassment” as workers could be seeking advice directly from solicitors or trade unions. Employers shouldn’t read this as a sign that the problem is going away. The figures show there are still a significant number of employees who felt they needed external advice and support.

Read the full article (subscription required)

• The Employment Appeal Tribunal's (EAT) recent decision in Clifton Diocese v Parker is a cautionary tale of what can go wrong in a workplace investigation, recording a series of serious procedural failings by the appointed investigator.  
• Notably, the employer didn't try to appeal the employment tribunal's decision that these failings made the dismissal unfair.  
• The EAT allowed the employer's appeal on the discrimination and harassment findings, which have been remitted to the same employment tribunal for redetermination. As the EAT emphasised, unfair treatment is not, by itself, evidence of discrimination — but the procedural failings in this case speak for themselves.

What happened in this case?

The claimant was Head of Finance at Clifton Diocese and was preparing to return to work following her adoption leave. She requested a flexible working arrangement, seeking to return three days a week to fit around her child's nursery place. The claimant's manager, who had raised concerns about her performance internally to others some months earlier, put them to the claimant for the first time during that conversation. They were then recategorised as allegations of gross misconduct – a step that the employment tribunal found had been contrived by the manager and the employer's HR adviser to procure her dismissal. An external investigator was appointed to carry out the investigation; the investigator went on, in substance, to conduct the disciplinary hearing as well, and the claimant was dismissed for gross misconduct.

The claimant succeeded in the employment tribunal in her claims for unfair and wrongful dismissal, and in part in her claims for discrimination and harassment.  The employer appealed the discrimination findings only; those have been remitted for redetermination.

What is notable is the extent to which the approach taken by the investigator came under fire from the employment tribunal – these were findings that were not appealed, and which the EAT set out in full in its appeal judgment.

What were the flaws in the disciplinary process?

It is not unusual for an employer to be criticised by an employment tribunal when assessing how a disciplinary process has been conducted. However, in this case, the way in which the investigation and disciplinary process was conducted was very specifically called out. The criticisms of the investigation and disciplinary process, much of which was directed against the investigator herself, included the following:

• The claimant was not provided with detailed allegations to which she could properly respond;
• The investigation interview was conducted in the claimant's absence;
• The investigator was not informed of the claimant's mental health condition and, being unaware of it, refused her request for the meeting to be held remotely;
• The investigator failed to look for exculpatory evidence, and approached the process as though it was for the claimant to disprove the allegations;
• The investigation was rushed, and rested largely on what the investigator had been told by one person, with only limited supporting documentation considered;
• At the disciplinary hearing, the investigator spoke to the claimant "as if she was a naughty school child", humiliating her.

Key takeaways

1. Outsourcing an investigation does not outsource the liability. Anything done by an employee in the course of their employment, or by an agent acting with the employer's authority, is treated as done by the employer. Appointing an external investigator therefore does not insulate an employer from the way that the investigator behaves, and the manner in which an investigation is conducted can itself amount to discrimination. An individual investigator may also face personal discrimination liability (though that was not in issue in this case).
2. Disclose the allegations in advance. The subject of an investigation must know the substance of the allegations against them before the investigation meeting, not on arrival at it. Calling someone to a meeting without telling them what it concerns is procedurally unfair and, as this case illustrates, can have significant consequences for the process as a whole.
3. Allow sufficient time to respond. The subject of an investigation must have adequate time to consider and respond to the allegations. Requests for additional time - whether to gather documents, obtain advice, or prepare a response - should be given proper consideration and any refusal justified. Timescales should be built in from the outset, with any deviation from them properly documented. 
4. Consider and accommodate reasonable adjustments. Before any investigation meeting, the investigator should establish whether the subject has any health issues or other circumstances that may affect their ability to participate and make appropriate adjustments.
5. Seek out exculpatory evidence. An investigator must approach their task with an open mind. A thorough investigation requires the investigator to seek out evidence that supports the subject's account with the same rigour as evidence that undermines it.
6. Conduct is as important as conclusions. The employment tribunal was highly critical of the way the investigator spoke to, and engaged with, the claimant. It is a stark reminder that an investigation that reaches the right conclusion but does so in a manner that is dismissive, disrespectful, or inappropriate still carries significant legal and reputational risk.
7. Keep investigation and decision-making separate, where practicable. Here, the investigator not only carried out the investigation but, in substance, conducted the disciplinary hearing and afterwards drafted the reasons for dismissal. Separating the two roles is a strong indicator of impartiality and makes the process far easier to defend.

With the compensatory cap coming off all ordinary unfair dismissal claims from 1 January 2027, the cost of getting a dismissal wrong will increase significantly for employers. Carrying out a fair and balanced investigation is a key component of a lawful conduct dismissal. This case is a timely reminder that an investigation is judged not only on its outcome, but on the integrity of the process by which it is reached.

Miriam has advised leaders across the education sector in complex matters such as investigations into alleged antisemitism; culture reviews showing discriminatory practices; illegal schools; and international safeguarding due diligence in school transactions, inter alia.  

Recently, the Bar Council appointed Miriam as the Council’s representative on the Advisory Group to the Judicial Appointments Commission.  Miriam is a trustee of the Hackney Foodbank Trussell Trust. As part of her new role, she will advise the team on growing the education offering and exploring international opportunities in the sector. Miriam is the eleventh partner hire at Mishcon this calendar year.  

"I am thrilled Miriam is joining the team," said Head of Employment, Susannah Kintish. "This move will further deepen our existing expertise in the education sector and provide both individuals and businesses with the best legal support. Miriam is a strategic and solution-focused barrister with a proven track record in supporting the education sector, and we welcome her to Mishcon."  

"I am delighted to be joining a terrific team at Mishcon de Reya,” says Miriam. "The education sector is in a state of transition, and I look forward to supporting our clients as they prepare for the future working across multiple teams. The Education group at Mishcon de Reya has established a strong practice, and the opportunity to help deepen our offering in the UK and internationally is exciting. I look forward to supporting our clients in this role.” 

The recognition reflects the breadth of Mishcon's disputes practice, from large-scale group actions and competition disputes to complex fraud, insolvency, commercial litigation, IP disputes, and criminal and regulatory investigations. Within its full-service Disputes business, Mishcon's lawyers continue to advise clients on matters that shape the legal and commercial world.

Hugo Plowman, Chair of Mishcon de Reya's Dispute Resolution department, said:

"It's great to be recognised at the top of Solomonic's rankings, but it's not all about how many people are watching our cases. It's the cut and thrust of working on some of the most complex and high-profile disputes that reinforces Mishcon's reputation as a disputes powerhouse and reflects the scale, diversity and impact of the work being delivered across our team."

Mishcon's Dispute Resolution practice is one of the largest and most highly regarded in the market, acting for corporates, entrepreneurs, institutions and high net worth individuals across the full spectrum of contentious matters. The firm's strong showing in Solomonic's latest rankings further demonstrates its ability to secure roles on the disputes attracting the greatest attention from the legal profession and wider business community.

Read more about Mishcon de Reya's Dispute Resolution practice.

• Universities and other long-standing charities are increasingly researching and disclosing how they have financially benefited from slavery, and then considering what "reparative action" can look like within the legal and regulatory framework that applies to them as charities.
• Some reparative measures may be more straightforward to implement. Others –such as asset transfers/repatriation or the repurposing of existing restricted funds – are more complex and often require prior consents from the Charity Commission and/or other regulators.
• As a high-level legal blueprint, trustees of universities and other charitable institutions in England and Wales must be able to show that any reparative measures that they are proposing to implement (i) further their institution’s charitable purposes for the public benefit, (ii) are within their institution’s legal powers to take or are otherwise legally authorised, and (iii) are taken following proper trustee decision-making in line with the Charity Commission's guidance.
• In some cases, trustees may be able to take a proposed reparative measure even if such measure would not further their institution's charitable purposes, or would not be within the institution’s legal powers to take, provided that the trustees can reasonably be regarded as being under a moral obligation to take the relevant measure, and provided (in most cases) that the prior consent of the Charity Commission has been received.

Introduction

UK universities are increasingly examining how they have historically benefited financially from slavery. The findings from their research often prompt an important question: namely, how they can take reparative action for this legacy within the legal and regulatory framework that applies to them as charities.

This article is intended to assist institutions that have decided to pursue such measures in navigating the relevant legal and regulatory framework in England and Wales. Whether and how to pursue reparative measures is itself a matter of debate, and the decision will inevitably engage a range of considerations that go beyond the legal analysis set out here.

What has been done so far?

The University of Glasgow is widely credited as the first major UK university to formally investigate and publicly document how it historically benefited from slavery, and to commit to a defined programme of reparative justice actions in response. In 2018, it published its report "Slavery, Abolition and the University of Glasgow" in which it acknowledged and quantified the significant financial donations which it received historically from people who had derived some, or occasionally much, of their wealth from slavery.

As part of its programme of reparative actions for this legacy, the University of Glasgow has, amongst other things:

• strived to increase the racial diversity of students and staff through scholarship awards;
• established and pledged to raise £20m for a partnership with the University of West Indies, including through the Glasgow-Caribbean Centre for Development Research which facilitates joint work on topics relevant to the Caribbean nations;
• created an interdisciplinary research centre for the study of historical slavery and its legacies; and
• repatriated a specimen of the Jamaican Giant Galliwasp lizard to Jamaica, its native habitat (which, according to the University of Glasgow's own materials, is a species now presumed extinct and thought to have disappeared due to the sugar cane plantation economy, which caused a loss of natural habitat and introduced predators such as rats to the island).

Since then, other major UK universities have followed suit – including for example the University of Bristol with its £10m "Reparative Futures" programme.

Zooming out, these initiatives have some parallels with the work conducted by other UK long-standing charitable institutions in recent years. For example, in 2023, the Church Commissioners published a formal report acknowledging that Queen Anne’s Bounty, a predecessor fund of the Church Commissioners’ endowment, had links with African chattel enslavement. The Church Commissioners have since announced their commitment of £100m to a reparative programme of impact investment "to invest in a better future for all, working with and for communities affected by historic transatlantic slavery".

Although the approaches taken by UK universities and other long-standing charitable institutions on this topic (and the responses thereto) have been wide-ranging, they have all had to be framed within the legal and regulatory framework that applies to these institutions as charities.

In the remainder of this article, we set out a 3-step legal blueprint for trustees of universities and other charitable institutions in England and Wales who are considering addressing their institution's legacy of enslavement.

Step 1: Do the proposed reparative measures further your institution's charitable purposes for the public benefit?

Under charity law, trustees have a legal duty to ensure that everything that their charity does helps (or is intended to help) achieve the charitable purposes for which their charity is set up, and no other purpose.

Purely from a legal perspective, therefore, the first question to tackle is "do the proposed measures further our charitable purposes?".

The charitable purposes of universities commonly include the advancement of education (often framed as education, teaching, and research). On that basis, measures such as archival research, educational scholarships, curriculum development, public lectures/exhibitions, and research partnerships will often be relatively straightforward to justify as being capable of furthering a university's charitable purposes, because they commonly fall within the recognised legal definition of the charitable purpose of advancing education.

Other measures – such as establishing community funds or non-educational scholarships – may be more difficult to justify as being capable of furthering a university's charitable purposes.

If a proposed measure is not capable of furthering a university's charitable purposes, the trustees may still be able to implement it, provided that they can reasonably be regarded as being under a moral obligation to do so, and provided (in most cases) that the prior consent of the Charity Commission has been received.

For completeness, please note that if a university is holding a fund or asset for specific charitable purposes, and the university is considering reparative measures in respect of that particular fund or asset, it will need to consider the specific charitable purposes which apply to that fund or asset (and which may be narrower or different from the university's own charitable purposes).

Step 2: Is there a legal power to take these measures?

The trustees must have the legal power to take the proposed measures. Such powers will depend on the nature of each proposed measure, and are usually set out in the charity's governing document and/or in legislation (e.g., the Charities Act 2011).

For some measures, there may be a clear and unrestricted power available for the trustees to use.

For some others, there may be a power which is restricted in some way, or which may only be exercised with the prior authorisation of a specific regulator. This includes:

• re-purposing an existing fund held for specific charitable purposes – for example, to give it a reparative aim;
• (in some cases) spending down an endowed fund which is otherwise required to be preserved as capital – for example, to award additional scholarships to students impacted by slavery; and
• (in some cases) paying funds or transferring assets where there is no legal power to do so but the trustees could reasonably be regarded as being under a moral obligation to make the payment or transfer – for example, to return cultural property to its country of origin or former owners.

Step 3: Trustee decision-making

Deciding to research, disclose and make reparations for historical institutional links to slavery is a momentous and multi-faceted decision, particularly for long-standing institutions with a high public profile and a diverse group of beneficiaries and supporters.

Thankfully, the Charity Commission's guidance on decision-making for charity trustees (CC27) (which applies to registered charities but also acts as persuasive guide to most universities which are "exempt" charities) provides a helpful reminder of the key principles of good trustee decision-making.

Particularly relevant principles in this context include:

• The need to be sufficiently informed: Given the complex nature of this issue and the potential impact of any decision on the institution's resources and reputation, trustees should ensure that they are sufficiently informed. This often means consulting with communities directly affected by slavery – who should have agency in determining what meaningful reparations look like – and other stakeholders of the institution (e.g., the wider group of students, staff and alumni who may be affected by the relevant decision(s)), as this will help trustees understand different views, assess the impact of the proposed decision, and show that they are open and transparent. Trustees should also ensure that they receive sufficient advice on the proposed decisions, e.g., from professional advisers and other technical advisers (e.g., academics with specific expertise in this area) as appropriate.
• The need to take account of all relevant factors: Trustees should consider, among other things:
  • the options available (for example, the different forms that reparative action could take);
  • the costs, risks, and benefits of all options, including if the trustees decide to not do anything;
  • the impact on beneficiaries and other stakeholders of all options (including, for example, beneficiaries from whom scholarship options may be taken away);
  • whether the institution has the funds to carry out the decision and see it through; and
  • the impact of all options on the institution's reputation (and therefore its supporter base).
• The need to identify and disregard irrelevant factors: This includes identifying and disregarding the trustees' own personal feelings or prejudices in relation to the matter.

Ultimately, trustees need to ensure that their decision is in the best interests of their institution and that it is within the range of decisions that a reasonable trustee board could make. They are not expected to avoid all risks, but instead should identify and manage them effectively.

What’s next? Collaboration and progression

The Universities Studying Slavery (USS) is an international consortium of over 100 higher education institutions which have committed to "research, acknowledgment, education and atonement regarding their institutional ties to the slave trade, to enslavement on campus or abroad, and to enduring racism in school history and practice". The USS hosts semi-annual public conferences and workshops to discuss strategies, collaborate on research, and share learnings. Many UK universities and colleges have joined the USS since its inception.

To complement the USS' work and further support institutions with designing and implementing their own acknowledgment and reparative programmes, it may also be beneficial to establish jurisdiction-specific working groups (e.g., for universities in England and Wales). This will enable the sharing of local knowledge/experience and the development of "best practice" recommendations that are tailored to the particular local charity law and regulatory framework.

The Education team at Mishcon de Reya

At Mishcon de Reya, our Education team includes charity law experts who support universities and other charitable institutions on addressing their historical links to slavery. If you would like to have an initial conversation with us about how we can support in this area, please get in touch.

Darrel began his career in financial services, spending 13 years trading precious metals, commodities and energy in New York, London and Paris. In 1998, he founded Pole Star Space Applications, a maritime satellite-tracking business that became one of the UK’s fastest-growing technology companies and was sold for $100 million in 2021. 

His wider career has included several non-executive, advisory and public-sector roles spanning energy, technology and maritime security. Darrel is also a martial arts instructor, rugby coach and former Harlequins player, as well as a Fellow of the Royal Geographical Society. 

Antonia described the current law on surrogacy and legal parenthood as "overdue for review".

"The legislation does not always reflect how the courts deal with cases in practice, making an already complex process difficult for families to navigate," she continued.

Antonia pointed to the six-month deadline for parental order applications as an example, noting that courts have been relatively flexible where applications are made later.

Read the full article (subscription required)

In brief

• A wider definition of "employment" brings workers' contracts, individual subcontractors within contracting chains, and online matching platforms within scope of the illegal working regime for the first time.
• Liability now travels up the supply chain: where a worker at the bottom of a subcontracting chain lacks the right to work, every business in that chain may be exposed to civil penalties, even without a direct contractual relationship with the worker.
• A new extended statutory excuse is available but demands significant compliance effort: businesses must have the right contractual terms, substitution controls, and identity verification systems in place before any work begins. Failing to meet even one prescribed requirement may leave the business without a defence.
• Digital verification providers must now be specifically authorised for right to work checks on the Office for Digital Identities and Attributes register — general identity verification authorisation alone is not sufficient.
• This is no longer just an HR issue: procurement, legal, operations, and supply chain functions all carry direct compliance implications and must be engaged in a coordinated response ahead of 1 October 2026.

The background

The starting point remains unchanged: under section 15 of the Immigration, Asylum and Nationality Act 2006, it is unlawful to employ someone in the UK who does not have the right to work here. If an employer conducts a compliant right to work check and that check is properly carried out, they will obtain a statutory excuse. This means that if it later transpires that the worker did not have the right to work, the employer cannot be penalised, provided the check was done correctly.

What has changed is not that core principle, but rather who it applies to.

Section 48 of the Border Security, Asylum and Immigration Act 2025 significantly expands the categories of working arrangement caught by the illegal working regime, extending beyond traditional employee-employer relationships.

This provision will come into force on 1 October 2026. An updated draft Employers' guide to conducting right to work checks was published on 16 July 2026 to help employers and businesses comply with the new requirements in practice.

In short: the rules as to what constitutes a compliant check remain broadly the same, but the universe of businesses required to conduct those checks - and exposed to liability if they do not - has grown considerably.

What is changing

A wider definition of "employment"

From 1 October 2026, the scope of 'employers' who may be subject to an illegal working penalty will be expanded to include not only those who employ an individual under a contract of employment, but also those who:

• Engage an individual under a 'worker's contract': these cover individuals providing work or services to a business under a contract that does not amount to a contract of employment but nonetheless involves a degree of personal service and subordination to the engaging party. Genuinely self-employed professionals who contract directly with their own clients fall outside of this category. The distinction is important, as it is the nature of the relationship, not the label applied to it, that determines which category applies.
• Engage an 'individual subcontractor' within a contracting chain: where an individual is engaged as part of a chain of contracts, with each party having been contracted by another to deliver the same or related work or services. In practical terms, this means that where a business engages a subcontractor, and that subcontractor in turn engages its own subcontractors, the business at the top of the chain may be exposed to liability in respect of a worker at the bottom of that chain, even where no direct contractual relationship exists between them. This may be problematic to apply in practice, and businesses should review supply chains and procurement processes and seek advice where required.
• Operate an 'online matching service: businesses that connect individual service providers with clients or customers, including gig economy platforms, will now be treated as employers for these purposes. This extends to any substitutes the service provider is permitted to use under their arrangements.

Who is not in scope

Genuinely independent self-employed professionals who contract directly with their own clients, without any supply chain, platform, or intermediary involvement, are generally outside the scope of the new regime, provided the arrangement is correctly classified and is truly arm's-length in nature. Importantly, a business that simply purchases services from such a provider does not, by virtue of that transaction alone, become liable under the extended regime.

The word "genuinely" is significant here. The classification of a working arrangement will be scrutinised on its actual characteristics, not merely on how it is labelled. An arrangement described as independent self-employment but which in practice exhibits the features of a worker's contract or subcontracting arrangement may fall within scope regardless of the label applied to it.

Liability travelling up the supply chain

This is arguably the most consequential change. Under the existing rules, civil penalty liability for illegal working is tied to the business with the direct employment relationship. The new rule breaks that link. In practical terms, this means:

• In a subcontracting chain, if Company A subcontracts work to Company B and Company B's workers do not have the right to work, both Company A and Company B may be liable. This will also extend further down the chain to Companies C, D, and E. No business in the chain is automatically insulated simply because it does not directly employ the workers.
• Where an online matching platform (Company A) connects a service provider (Company B) with a client, both the platform and the service provider may face liability if Company B's workers lack the right to work.
• In substitution arrangements, if a worker is replaced by a substitute under a contract that permits substitution, the engaging business may be liable for that substitute's right to work, even if it has no direct contractual relationship with the substitute at all.

The draft Employers' guide indicates that extended liability is most likely to be triggered where the Home Office cannot identify the business that has a direct contractual relationship with the worker in question. However, the practical effect is that every business within the chain remains exposed so long as that party cannot be identified. This places a significant premium on contractual due diligence and supply chain visibility.

Establishing a statutory excuse under the new rules

The existing statutory excuse framework remains in place for businesses that directly employ workers in the traditional sense. Provided a compliant right to work check is carried out before employment commences, the employer will have a statutory excuse against any civil penalty if it later emerges that the worker did not have the right to work.

For the new categories of arrangement caught by the extended liability provisions, such as subcontracting chains, substitution arrangements, and online matching platforms, a separate statutory excuse is available. However, it is important to understand that this excuse is not automatic. It is available only where a business satisfies all of the prescribed requirements set out below, and those requirements must be met before work begins. Failing to meet even one of them may leave the business without a defence to a civil penalty.

The three areas in which prescribed requirements must be satisfied are as follows:

• Contractual terms: Before work commences, a written agreement must be in place between the parties. This agreement must incorporate five mandatory provisions. In broad terms, these require the other party to carry out right to work checks, prohibit further subcontracting without prior written consent, and ensure that equivalent right to work obligations flow down through any permitted subcontracting arrangements. The intent is to ensure that compliance obligations do not fall away as work passes further down a contracting chain.
• Substitution controls: Where a contract permits substitution, that is, where one worker may be replaced by another to carry out the same work, several mandatory process requirements must be implemented before any substitution takes place. They include ensuring that a (i) right to work check is conducted for any substitute worker, (ii) that the responsibility for carrying out those checks cannot be passed to the workers themselves, and that (iii) no substitute may begin work until their right to work has been positively verified.
• Identity verification: Businesses must have proportionate systems in place to ensure that the individual who carries out the work is the same person whose right to work was checked. This is designed to prevent scenarios where checks are conducted on one individual, but the work is performed by another. The draft Employers' guide identifies five acceptable methods, including identity cards, workplace access passes, facial verification technology, use of registered digital verification service providers, and periodic re-verification of identity at set intervals.

The new extended statutory excuse is a meaningful protection, but it comes with a significant compliance burden. Businesses must have the right contracts, the right processes, and the right verification systems in place, all before any work starts.

Digital checks: new requirements

Where a business uses a digital verification service provider to conduct right to work checks, and wishes to rely on those checks to establish or maintain a statutory excuse, it must, from 1 October 2026, ensure that the provider it uses meets two distinct requirements:

• The provider must be registered on the Office for Digital Identities and Attributes register; and
• The provider must be specifically authorised for right to work checks, not merely authorised for general identity verification purposes.

The distinction between the two is important. A provider may be registered on the register and authorised to carry out identity checks in a broader sense, but that alone will not be sufficient. The authorisation must extend specifically to right to work purposes. Businesses that currently use a digital verification provider should therefore confirm - with that provider directly if necessary - that their authorisation covers right to work checks specifically. If it does not, arrangements to switch to a compliant provider should be made before 1 October 2026 (It is worth noting that many background-checking organisations subcontract the digital verification function to a registered and authorised provider, so the position may not always be immediately apparent from the existing contractual arrangements).

In a welcome and practical development, British and Irish passports (and Irish passport cards) will now be accepted for digital identity verification checks up to six months past their expiry date.

Penalties

The civil penalty framework remains in place and continues to carry significant financial consequences. A business found to have employed a worker without the right to work may face a penalty of up to £60,000 per illegal worker. For businesses that have previously been penalised and have failed to remediate, repeat breaches may attract even higher penalties. Conducting a compliant right to work check and being able to demonstrate that it was carried out correctly, provides a statutory excuse and protects the business against such a penalty, even if it later transpires that the worker did not in fact have the right to work.

Beyond civil penalties, criminal liability may arise where there is reasonable cause to believe that a business knew, or had reasonable grounds to believe, that illegal working was taking place. This is a higher threshold than mere non-compliance, but the consequences are considerably more severe. Criminal liability can result in unlimited fines and, for individuals within the business, such as directors, managers, or those with oversight responsibility, the risk of custodial sentences. This means that personal liability for senior individuals is a real consideration, not merely a theoretical one.

Why this is no longer just an HR issue

Perhaps the most important message to take from the breadth of these changes is that immigration compliance can no longer be treated as the sole responsibility of the HR function. The extension of the regime means that the decisions made by procurement when selecting suppliers, by operations when structuring labour supply, by legal when drafting contracts, and by supply chain teams when managing contracting arrangements all carry direct compliance implications.

Each of those functions now has a role to play in ensuring the organisation is protected. Businesses that continue to treat right to work compliance as an HR administrative task, without engaging the wider organisation, are likely to find themselves exposed, particularly in complex supply chain arrangements where the risk of extended liability is greatest.

Next steps

We recommend the following steps to ensure that your company is prepared ahead of the change's introduction:

• Conduct a 'census' i.e., identify all categories of workers engaged by the business, including employees, contractors, agency workers, subcontractors and platform workers. Compare these arrangements against the revised definitions in the Code of Practice to determine which relationships fall within the expanded regime and where liability may arise. This assessment will also inform subsequent policy updates and staff training.
• Review template agreements to include the contractual provisions needed to support a statutory excuse under the new rules, including where subcontracting, substitution or online matching arrangements apply. Existing contracts should also be reviewed to identify and manage potential compliance risks.
• Revise right to work policies and procedures before 1 October 2026 to reflect the new legal framework. Continuing to rely on existing policies after that date may expose the organisation to civil penalties.
• (if applicable) Check if digital identity service provider is registered on the Office for Digital Identities and Attributes register and authorised to carry out right-to-work checks. If checks are outsourced through a background screening provider, verify that any subcontracted verification services also meet these requirements.
• Train staff responsible for conducting right to work checks on the expanded scope of the regime, the new worker categories, and the requirements for establishing a statutory excuse.
• Review your procurement processes to determine whether third party vendors you engage with are compliant and/or will be able to assist you maintain compliance with the changes.
• Seek legal advice to review all the above for surety that you will be compliant.

The changes taking effect on 1 October 2026 require a coordinated response across procurement, legal, operations and HR functions. Compliance should be treated as an ongoing obligation rather than a one-time exercise, and organisations are advised to keep their arrangements under regular review as further guidance emerges.

Please note that this article is for general information purposes only. It cannot be relied upon and does not constitute legal advice.

For further information contact:

Roberta Imperial, Managing Associate, Business Immigration
Dean Joshua Oamen, Associate, Business Immigration

The Spear’s 500 is an annual guide featuring leading advisers, lawyers and specialists serving HNW and UHNW individuals, families and family offices. It is designed to help readers identify highly regarded professionals with proven expertise in handling complex legal, commercial and private client issues. Inclusion is entirely merit-based and independently curated by the Spear’s Research Unit.

View the full indices on the Spear's website: 

• Employment
• Landed Estates
• Litigation & Dispute Resolution

• Meta has agreed to pay up to $18 billion over 10 years to settle claims by 52 US state and territory attorneys general, the largest state consumer-protection settlement in American history outside tobacco.
• The settlement imposes binding obligations including time limits, curfews and age assurance for teen users, and contains a mechanism designed to extend those standards to TikTok and YouTube.
• However, the default algorithmic feed remains unchanged, the money goes to state governments rather than affected children or families, and although several states have committed to earmarking portions for youth mental health and online safety, there is no binding obligation to do so.
• Accountability is accelerating globally through litigation, age-based bans and EU enforcement, and the question is whether the cumulative pressure will prove sufficient to change how platforms operate.

In April 2026, we analysed the California jury verdict that held Meta and YouTube liable for designing platforms harmful to young people and asked whether it represented social media’s ‘Big Tobacco’ moment.

Since then, the landmarks have come thick and fast. The day before that California verdict, a New Mexico jury ordered Meta to pay $375 million for misleading consumers about the safety of its platforms and enabling child exploitation, the first time a state had prevailed at trial against a major technology company over child harm. In the months that followed, social media companies paid a combined $27 million to settle the first school district case, in Kentucky, and a New Mexico judge added a further $567 million abatement order, bringing that state’s total judgment to nearly $1 billion. Then, on 26 August 2026, Meta agreed to pay up to $18 billion over 10 years to settle claims by 52 US state and territory attorneys general, the largest state consumer-protection settlement in American history outside tobacco.

Regulatory change has gathered pace alongside the litigation. Following Australia’s lead, Brazil, Spain, the UK, Malaysia, Canada and France have all moved to restrict children’s access to social media. Against this backdrop, it is not hard to see why 2026 is increasingly regarded as the year of reckoning for the social media industry, when courtrooms and legislatures alike began imposing consequences that voluntary commitments had not delivered.

In this article, we examine what the $18 billion settlement covers, what it leaves untouched, and whether the deal represents a genuine reckoning or a commercially managed outcome.

What is in the settlement

The settlement arose in proceedings alleging that Meta had designed Facebook, Instagram and Messenger to be harmful and addictive to children and had misled the public about platform safety. Meta agreed to pay up to $18 billion over 10 years and to accept legally binding child-safety obligations. The figure is 'up to' $18 billion because approximately 30 per cent is conditional on Snapchat, TikTok and YouTube adopting equivalent measures and paying a matching sum. If they do not, Meta's payout is capped at approximately $12.7 billion.

The money goes to state governments, not to the children or families affected, although several states have committed to earmarking portions for youth mental health and online safety. The settlement imposes obligations on Meta for teen users aged 13 to 17: a two-hour daily time limit, a midnight-to-6am curfew, school-hours notification blocks, hidden like counts, a ban on cosmetic surgery filters, and the option to switch to a chronological feed. Meta must also implement age-assurance tools capable of identifying underage users even when they enter a false birth date. An independent auditor will monitor compliance.

What is not in the settlement

The algorithm itself is not required to change. Teens can opt out of the engagement-optimised feed, but it remains the default, and the settlement does not require Meta to alter design features such as infinite scrolling, autoplay or push notifications. By contrast, the EU has gone further: preliminary findings under the Digital Services Act concluded that these very features breach EU law, and the Commission is requiring Meta to disable them by default, backed by a potential fine of up to 6 per cent of global annual turnover.

This is where the tobacco comparison breaks down. The 1998 Tobacco Master Settlement Agreement (the "Tobacco MSA") required the industry to change how its product was marketed: permanent marketing restrictions, a ban on advertising to children, and structural changes to how cigarettes were sold. While the Meta settlement imposes time limits and offers an opt-out from the algorithm, it does not require Meta to change its core product architecture.

There are also gaps. The auditor’s recommendations are explicitly ‘non-binding,’ and the audit reports are confidential. The obligations do not extend to WhatsApp or Meta’s virtual reality products, and critics argue the age-assurance measures rely on perimeter filters rather than fixing how underage users bypass them.

Reckoning or managed exit?

For all the scale of the headline figure, on the day it was announced Meta’s share price initially rose over 4 per cent in pre-market trading before closing up around 1 per cent on the day, suggesting investors viewed the settlement as favourable rather than punitive. The states had argued the case was worth $193 billion; Meta’s own calculations put its potential liability at up to $1.4 trillion. At less than 10 per cent of even the states’ figure, the settlement appears to resolve significant litigation risk at a fraction of the claimed exposure. Three states are not part of the settlement: New Mexico had already secured nearly $1 billion through its own litigation, Texas reached a separate $1 billion settlement, and Florida rejected the deal as insufficient. The question is whether a payout of this scale, spread over a decade, represents the kind of financial pressure that will ultimately change how Meta's platforms are designed, or simply be factored in as a cost of continuing to operate them.

There is also a question of how much of what Meta agreed to it would have been compelled to do anyway. Australia, the UK, the EU, France, Spain, Canada, Malaysia and Brazil have all moved independently to restrict children’s access or impose design changes, and many of the settlement’s concessions overlap with obligations emerging through regulation. On the other hand, by settling, the states secured enforceable protections within months rather than facing years of appeals.

The trial was barely a week old when Meta settled. Whistleblower Arturo Béjar had testified that safety was ‘not a meaningful priority' and that Meta’s voluntary safety features were ‘designed to fail.’ Meta disputes these characterisations. Instagram head Adam Mosseri had taken the stand, and Mark Zuckerberg was on the witness list. Internal research and company data on child harm were entering the public record. By settling, Meta brought that process to an end. The Tobacco MSA, by contrast, required the release of millions of internal documents that fundamentally reshaped public understanding of the industry; this settlement includes no comparable disclosure obligation.

Nevertheless, the settlement is a legally binding acknowledgment by Meta that its voluntary safety tools were not sufficient, and marks the first time Meta has accepted, in an enforceable instrument, that there is more it can and should be doing to protect children.

The conditional mechanism is also significant. Approximately 30 per cent of the total payout is conditional on its rivals adopting equivalent protections and paying a matching sum; if they do, Meta's own restrictions tighten further. This goes beyond a standard damages settlement: it is designed to drive child-safety standards across the industry and may prove more consequential than a judgment against Meta alone.

Conclusion

The central lesson is that Meta moved not through voluntary commitment but through the prospect of serious financial consequences imposed through litigation. It was arguably litigation, more than regulation or legislative bans, that created the commercial incentive to settle and accept binding obligations. The settlement also illustrates that litigation's value is not limited to verdicts: a negotiated resolution that delivers enforceable change on an accelerated timeline may achieve as much as a contested judgment subject to years of appeal.

Whether the settlement also represents the kind of financial pressure that changes a business model is less clear: the payout, spread over 10 years, is modest relative to Meta’s earnings, and the default algorithmic feed is unchanged. However, there is a strong argument that the question is no longer whether accountability will come, but whether the combination of litigation, regulation and negotiated settlements will prove sufficient to change platform design rather than merely the cost of maintaining it.

Key takeaways

• Wide application: Any independent trade union can seek access to workplaces of employers with 21 or more workers, whether or not there is any existing union presence.
• Tight deadlines: The statutory timetable for responding to an access request and agreeing terms is short. If no agreement is reached, the Central Arbitration Committee (CAC) can impose terms.
• Significant enforcement liabilities: Repeated breach of an access agreement can attract escalating penalties of up to £500,000 a breach, and the name of the employer can be made public.
• A pathway to union recognition: Unions will use access as a route towards formal recognition and collective bargaining. Employers should decide in advance what role, if any, they want a union to play in their workplaces.

Brief overview of the access framework

From 30 October 2026, any independent trade union can request access to an employer’s premises and to its digital communications channels, whether or not the union has a single member in that workplace. Employers with 21 or more workers are affected by this, with some limited exceptions (for example where the workplace is a private residence).

The timetable is short. Employers have 15 working days to respond to a union access request, stating whether access is accepted in whole or in part, or declined, and why – including whether they are willing to negotiate. The parties then have 25 working days to agree terms. If they cannot, the matter can be referred to the CAC, which will decide whether access should be granted and on what terms. The CAC’s starting position is that access should be granted. Employers are expected to take reasonable steps to accommodate access, and any refusal must be reasonable in all the circumstances. A refusal of access may be reasonable where, for example, another union is already recognised, where too little notice has been given or the frequency requested is excessive, or where union officials will not comply with the employer’s policies for visitors.

Why this matters now

The right of access is one of a series of reforms under the Employment Rights Act 2025 (ERA), aimed at increasing trade union involvement in the workplace. Alongside access rights, the ERA has already simplified the statutory recognition process - once recognised, unions have the ability to negotiate terms and conditions on behalf of workers. Further, from 30 October 2026, the ERA introduces a requirement on employers to tell workers about their right to join a trade union. Taken together, these reforms make it substantially easier for a union to establish itself in a workplace that has never had one.

The purpose of access is for unions to meet, support, represent, recruit or organise workers – whether or not they are union members – and to facilitate collective bargaining. It does not extend to organising industrial action. Access is therefore best understood as a first step towards recognition rather than an end in itself.

Until now, many employers without a recognised union have been able to keep unions at arm’s length. Without existing members in the workforce, a union had no practical route in. The access right removes that obstacle. Employers most affected include those with no existing union presence – these employers are least likely to have a protocol for dealing with an access request.

An employer that fails to comply with an agreed or imposed access agreement faces real financial and reputation risks. Disputes go to the CAC, which can order steps to secure compliance and, for repeated breach, impose escalating penalties rising to up to £500,000 a breach. The CAC can also publish details of any penalty, including the name of the employer.

Employers who prefer to keep a direct relationship with their workforce should be reviewing the effectiveness of their existing worker consultation arrangements now.

What employers should do now

There is limited time before the new regime takes effect. The following steps will put you in a considered rather than a reactive position:

• Audit your worker voice mechanisms: Workers who feel heard rarely look elsewhere for representation. Understand current sentiment across your workforce and assess the quality of your existing engagement and worker representation arrangements. Where those arrangements exist, ensure that staff know of them and buy in to them. Where those arrangements are weak or absent, you have an opportunity to build them now. If you would prefer to keep the relationship with your workforce direct, credible worker voice arrangements of your own are far more effective preparation than resisting access once a request has arrived.
• Develop an access strategy: Decide now what access you could offer - which rooms, how often, and what digital channels. Access during breaks or at the end of the working day tend to be practical in most workplaces. The aim is to have your position ready before a union request arrives, rather than making concessions under the pressure of tight negotiation deadlines.
• Assess the practical risks of access: Permitting third-party access to your workplace raises issues beyond industrial relations. Employers will, for example, need to ensure they comply with health and safety obligations towards visiting union representatives. Similarly, employers will want to manage the risk of liability for third-party harassment of their workforce by union representatives, as well as managing the risk of confidential and business-sensitive information being compromised. You should address these sorts of issues in the access agreement and also review your existing policies and procedures to ensure they remain fit for purpose.
• Set up and train an access request team: Allocate responsibility and authority for responding to access requests to a specific team who have been suitably prepared to deal with the employer's response. More generally, line managers and HR need to understand what the access request framework requires and who to cascade queries and issues to.  

How Mishcon de Reya can help

If you would like more information or support on the new union access right or on other changes being introduced by the Employment Rights Act, please get in touch with your usual Mishcon de Reya contact or with a member of the Employment team.

Elliott has more than 20 years’ experience advising high-net-worth individuals, beneficiaries, trustees and other parties to private wealth disputes. His wider practice encompasses commercial litigation, civil fraud, asset tracing and recovery, insolvency and shareholder disputes.

Before joining Mishcon de Reya, Elliott was a partner at Signature Litigation, where he was also the Founding Partner of its Gibraltar office and built and led a team handling complex international disputes. He has appeared at all levels of court, including before the Judicial Committee of the Privy Council, and regularly works alongside leading law firms and counsel across multiple jurisdictions.

Elliott is recognised as a leading practitioner by Chambers and Partners and The Legal 500 and is included in Legal Week’s Private Client Global Elite, which recognises leading lawyers advising ultra-high-net-worth clients. Alongside his legal career, Elliott served as a Member of the Gibraltar Parliament between 2015 and 2023, including as Leader of the Opposition from 2017 to 2019.

Mishcon de Reya’s established Private Wealth Disputes team sits within Mishcon Private and acts for trust companies, family offices and private individuals in domestic and international disputes. The team is ranked in the top tier in both Chambers High Net Worth and The Legal 500, with its lawyers bringing significant experience of acting for trustees and beneficiaries in complex, cross-border matters.

Elliott’s appointment builds on the existing strength of the Private Wealth Disputes team and adds further depth to Mishcon Private’s ability to support individuals, families and family offices in complex and sensitive disputes. It also reflects the firm’s strategic focus on Private Wealth & Private Capital, its disputes capability and the continued international development of its business. Elliott is the firm's 10th lateral partner hire of the calendar year.

Elliott Phillips said: “Mishcon de Reya has an outstanding reputation for advising individuals, families and family offices on their most complex and sensitive matters. I am delighted to be joining an established, top-tier team that combines deep private wealth expertise with a market-leading disputes practice.

“As wealth, assets and family interests become increasingly international, clients need advisers who can navigate complex structures, multiple jurisdictions and challenging personal dynamics with sound judgement and determination. I look forward to working across Mishcon Private and with colleagues internationally to help clients protect what matters most to them and to strengthen further the firm’s cross-border private wealth disputes offering.”

Peter Steen, Head of Private Wealth Disputes at Mishcon de Reya, commented: “We are delighted to welcome Elliott to the firm. He is an accomplished disputes lawyer with extensive experience of handling complex and sensitive private wealth matters across jurisdictions.

“We already have an exceptionally strong Private Wealth Disputes team, with an established reputation for acting in significant domestic and international disputes. Elliott’s combination of technical expertise, strategic judgement and understanding of the dynamics that underpin private wealth disputes will be a real asset to our clients. His appointment adds further depth to the team and supports our ambition to build on Mishcon Private’s distinctive offering and further develop our international contentious trusts and estates capability.”

• Fendi, Loewe, Dior, Celine and LVMH have successfully pursued an online reseller, Rolo Fashion Limited, and its influencer founder over sales of so-called "superfake" counterfeit goods.
• The Intellectual Property Enterprise Court (IPEC) awarded the brands £213,000 in damages.
• The court confirmed that a low price alone does not excuse a counterfeiter from damages liability: if a customer chose the fake over the real thing because it was cheaper, that can still be a lost sale for which the original brand should be compensated.

Background

"Superfakes" are counterfeit goods made to a notably high standard, sometimes described in online counterfeiting circles as "1 to 1" or "mirror quality". Such products are typically sold at a steep discount to the authentic item but with a narrower quality gap between fake and genuine than a more typical counterfeit. A recent IPEC damages ruling, Fendi Italia Srl & Ors v Rolo Fashion Limited & Anor, brought by five claimants within the LVMH group against a fashion reseller and the influencer behind it, shows how the courts are approaching compensation claims in this space.

Damages inquiry

Liability for trade mark infringement had already been established by default judgment in January 2025 against Rolo Fashion Limited and its founder, Georgia Aldridge, over sales of counterfeit luxury goods bearing the claimants' trade marks. This ruling was a damages inquiry, concerned only with valuing that infringement.

The defendants' goods at issue were sold consistently at a fraction of the genuine price, on average around 15 per cent, and in some cases less than 5 per cent. The defence's central argument followed from that pricing gap: no rational buyer paying so little could have believed they were getting the genuine article, so there was no loss to the original brand to compensate.

The judge rejected that reasoning as a complete answer. He held that, when a customer knowingly chose one of the "superfake" counterfeits over the genuine article specifically because of the price, the brand had still lost a sale it would otherwise have made. Deception of the consumer is not a precondition for such loss. The distinction separates two of the functions served by trade marks: while trade marks play an important role in preventing consumer confusion, they also work as drivers of demand and value in their own right.

Quantifying the loss to the original brands

In assessing loss of profits, the brands proposed substitution rates of between 10 and 30 per cent, representing the proportion of counterfeit sales that would otherwise have been genuine sales made by the brands, built largely on an assumption that every member of a WhatsApp sales group used by the influencer as a sales channel had made at least one purchase. The judge rejected that assumption, though he was also unconvinced by the defendants' own figures, which understated sales volumes without adequate justification. The judge resolved the uncertainty against the defendants, on the basis that a party whose own disclosure had been incomplete should not benefit from the resulting gaps. Working from the defendants' bank records and settling on a 15 per cent substitution rate, he concluded that the brands had lost around 713 sales, worth roughly £200,000 in lost profit.

The user principle for trade marks

That £200,000 accounted only for sales that displaced a specific genuine sale. A substantial number of the counterfeit sales, around 4,039, did not fit that description: on the evidence, these were sales the brands would never have made in any event. The brands still sought compensation for those sales, on the basis of the "user principle".

In essence, the user principle asks what a reasonable licence fee would have been, had the infringer approached the brand and sought permission to use its mark legitimately. The concept was originally developed in patent law, where a defendant who infringes a patent without displacing a specific sale from the patent holder can still be made to pay a notional royalty, on the basis that they have used a valuable invention without paying for it. The principle does not always translate naturally to trade mark disputes, as a trade mark is not typically a piece of property licensed out for a fee. Case law has generally handled the user principle in trade mark cases with caution in light of these issues.

Notwithstanding that difficulty, the judge accepted that some compensation was owed for these sales, on the basis that they still took unfair advantage of the brands' reputation, even where counterfeit sales were not displacing a specific transaction from the original brands. The judge set a notional royalty of 3 per cent of the defendants' selling price, adding a further sum of around £13,000. Combined with the lost profits figure, the total award came to £213,000.

Additional claim for damage to reputation

However, the brands' claim for reputational damage was dismissed. There was no evidence that consumers held the brands in any way accountable for the quality of the counterfeits or for any negative experience of buying them; instead, the purchasers fully understood they were dealing with counterfeit sellers rather than the brands themselves. A general proposition that counterfeiting damages reputation is not, on its own, sufficient for compensation to be recovered; specific evidence of confusion or negative association will be required in practice.

Takeaways for brands

For rights holders, the decision sets a useful marker for damages in "superfake" litigation. A wide gap between the genuine and counterfeit price does not defeat a claim for lost profits. At the same time, the treatment of the user principle is a reminder that not every counterfeit sale converts neatly into damages, and that the further a claim moves from a straightforwardly lost sale, the more evidential ground the court will require before making an award.

How Mishcon de Reya can help

Our Intellectual Property Disputes team has extensive experience acting for luxury and premium brands in pursuing counterfeiters, securing injunctions and judgments, and recovering damages through lost-profits and other claims. For further information, please contact a member of the team.

• The High Court has handed down its quantum judgment in the trade mark dispute between the Swatch Group and Samsung, concerning watch face apps that infringed Swatch Group trade marks on the Samsung Galaxy App store between 2015 and 2019.
• The Swatch Group's expert valued the claim at approximately US$170 million; Samsung's expert valued it at just US$301. However, the court rejected both extremes and awarded "negotiation" damages of US$11.6 million.
• The court held that damages must be assessed by reference to what the infringer actually needed to render its conduct lawful, assessed prospectively (i.e., ex ante) and without the benefit of hindsight, not by reference to an inflated hypothetical licence or a deflated after-the-fact economic benefit calculation.

Background

The Swatch Group, whose brands include Omega, Longines, Tissot, and Swatch, brought trade mark infringement proceedings against Samsung concerning "watch face apps" made available through the Samsung Galaxy App store (the SGA store). These apps allowed users of Samsung smartwatches to replicate the appearance of a physical watch face on their device's screen.

Liability was determined in 2022, when the High Court found that a number of the Swatch Group's trade marks had been infringed by watch face apps available on the SGA store between October 2015 and February 2019; a decision upheld by the Court of Appeal in 2023.

The infringements fell into three categories:

• infringement through display of the mark on the watch face itself once downloaded (Dial Branding Infringements);
• infringement through use of the mark in the app's name as displayed in the store, irrespective of download (Store Display Infringements); and
• infringements combining both (Double-Barrelled Infringements).

The infringing apps were downloaded around 160,000 times in the UK and EU and generated total revenue of only around US$1,000.

The High Court decision on quantum

The question of how much Samsung should pay the Swatch Group in damages for those infringements came before Mr Justice Marcus Smith at a quantum trial in June 2026 with judgment handed down in August 2026.

The Swatch Group claimed for "negotiation" damages (also called licence fee, Wrotham Park or user damages). Negotiation damages compensate a rights holder for the loss of its ability to control and exploit its property, not for any demonstrable financial loss or the infringer's actual profit. The court had to consider what a reasonable licence fee would have been, had Samsung, as the infringer, approached the Swatch Group, as the rights holder, and sought permission.

The judgment identified three broad categories of case for assessing such damages:

1. cases where the rights holder exploits its rights by selling products, so that infringement diverts sales, and lost profit is the natural measure;
2. cases where the rights holder licenses its rights and an established market royalty exists as a comparator; and
3. cases, like this one, where there is no diversion of sales and no comparable licences (the Swatch Group did not license its brand), so the court must construct an assessment from more general evidence.

Several important principles of general application emerged from the judgment:

• The relevant hypothetical negotiation is between the actual claimant and the actual infringer, not with third parties (here, the app developers) who might also have needed a licence.
• The subject matter of the hypothetical licence must match what the infringer actually did and actually needed, not a broader or narrower right. Samsung's expert erred by confining the notional licence to the Dial Branding Infringements alone, ignoring the Store Display Infringements. The Swatch Group's expert erred in the opposite direction, positing a full co-branding licence Samsung never contemplated or needed.
• The negotiation must be assessed prospectively, based on what the parties would reasonably have expected at the time, not retrospectively engineered around the infringement that actually occurred and its resulting revenue.
• The unwillingness of a brand owner to license its marks at all does not defeat a claim for negotiation damages; every rights holder has a price, and the exercise remains one of objective valuation rather than actual willingness.
• An "economic benefits" approach measuring only the infringer's realised revenue and the claimant's demonstrable loss is inherently unreliable in brand cases, because brand value accrues and erodes gradually and is very difficult to measure in the short term.

The court's assessment

The expert evidence in the case produced two wildly diverging positions:

• The Swatch Group's expert calculated negotiation damages (as if the parties had reached a hypothetical licence) at around US$170 million, based on a full co-branding scenario in which Samsung's smartwatch hardware, packaging and marketing would have carried Swatch Group branding.
• Samsung's expert, by contrast, calculated damages of just US$301, based narrowly on the actual revenue Samsung earned from paid downloads of the infringing apps, arguing there was no demonstrable economic benefit to Samsung or economic harm to the Swatch Group.

The court rejected both experts' methodologies and declined to simply split the difference. Instead, it constructed its own assessment from first principles, informed by, but not bound to, the experts' underlying data. The final award combined a royalty-based figure for the infringing downloads with a separate flat fee reflecting the reputational harm of displaying Swatch Group brands on Samsung's app store:

• For the Dial Branding Infringements, the court applied a flat fee of US$10 per download and multiplied this by the number of downloads (160,000), producing US$1.6 million.
• For the Store Display Infringements, which the court regarded as potentially the more damaging category because they associated Swatch Group brands with free or low-cost products displayed indiscriminately in the SGA store, the court awarded a flat fee of US$10 million, informed in part by a prior, non-comparable but broadly informative, settlement paid by Apple to the Swiss Federal Railway over a design dispute concerning a clock face.

The court considered the final award was "sufficiently high to incentivise companies who sell Apps via stores like the SGA store (both Apple and Google operate stores along these lines) to respect the intellectual property rights of others, without rendering their businesses uneconomic".

Key takeaways

• Negotiation damages remain available and valuable even without demonstrable loss. Brand owners do not need to prove that an infringement caused quantifiable financial or reputational harm in order to recover substantial damages. It is the value of the right infringed, not the damage the infringement caused.
• An unwillingness to license is not a bar to recovery. Brand owners who, as a matter of policy, never license their marks to third parties (as is common for luxury and prestige brands) can still recover a meaningful licence fee for unauthorised use; the law treats every owner as having some price, however high.
• Evidence of brand value and licensing practice is central, but must be realistic. Expert evidence overreaching into speculative, hypothetical co-branding scenarios far beyond what the infringer actually did will be discounted heavily. Brand owners should ground valuation evidence in what the infringer actually used the mark for, not the most valuable use imaginable.
• Distinguish and separately value different forms of infringement. The court treated the reputational harm of a brand being displayed cheaply or for free in a digital storefront (Store Display Infringement) as distinct from, and potentially more damaging than, the harm of the mark simply appearing on the end product once downloaded (Dial Branding Infringement). Brand owners pursuing platform or marketplace infringers should consider pleading and evidencing these categories of harm separately.

How Mishcon de Reya can help

For more information on damages assessments for infringements of any IP right, please get in touch with our Intellectual Property team who advise on these issues across a range of sectors and technologies.