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.

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 indicies 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, employer 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.

The article explains the current law and the Ministry of Justice's proposals to introduce financial remedies for certain cohabitants when a relationship ends, alongside possible automatic inheritance rights in the absence of a will. Clare also provides practical guidance for advisers on property ownership for cohabiting couples, cohabitation agreements, estate planning, and documenting family contributions.

Highlighting the importance of planning ahead, Clare said: The prospect of a new cohabitation regime makes it increasingly important that the ownership of assets, the source of significant financial contributions and the intentions of family members providing money or assets are clearly recorded from the outset.

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• The Landlord and Tenant Act 1954 (the Act) was enacted in a post-war, commercial property market when premises were scarce, leases were longer and businesses were more closely tied to a physical location. Protecting tenants from displacement was a priority. Today's commercial leasehold market is different, placing far more weight on flexibility and speed, as well as redevelopment, environmental performance and the efficient use of space.
• Security of tenure still matters, especially where a business depends on its location and goodwill or has invested heavily in fitting out its premises. The question is whether Part 2 of the Act (that governs the security of tenure regime for business tenancies) has, over time, become too burdensome and insufficiently aligned with modern commercial practice.
• Having already concluded that the basic 'contracting out' model should remain, the Law Commission is now looking closely at how Part 2 of the Act works in practice and testing it against the demands of today's commercial leasehold market. Its second consultation paper seeks not only to clear up longstanding practical problems, but also to make the regime more responsive to modern commercial, developmental and environmental priorities.
• The following are some of the headline issues.

Who gets protection?

At present, a fixed-term business tenancy granted for less than six months is generally outside the scope of Part 2 of the Act. The "chaining" provision in the Act creates an exception where a tenant has already occupied the premises for more than 12 months. That earlier period of occupation is counted, with the result that the new (short) tenancy falls within the Act where it would otherwise have not qualified for protection.

The six-month threshold has not changed since 1969 and the Law Commission now offers two alternatives: a two-year threshold coupled with a reformed chaining provision, or a one-year threshold with chaining abolished. Either option would take shorter, more flexible lettings (where tenants do not tend to need or even want security of tenure) outside the regime and reduce the need to contract them out.

Periodic tenancies are treated differently. They are currently protected regardless of their length and cannot generally be contracted out, which can cause particular difficulty where an implied periodic tenancy arises after a contracted-out fixed term has expired. The Law Commission provisionally proposes taking most express and implied periodic tenancies outside Part 2 of the Act, subject to an important exception for a fixed-term or express periodic tenancy granted to an existing protected tenant. It also proposes that an express written periodic tenancy should be capable of being contracted out.

Moving contracting out into the lease

This may prove to be the most immediately practical proposal in the paper. The current contracting-out process is cumbersome and can add cost and delay, and the statutory declaration route is a particular source of frustration because it requires the tenant to find an independent solicitor to witness the declaration, often at the last minute.

Agreements for lease, renewal options and guarantees create further complications because contracting out must take place before the parties become legally bound, rather than when the lease is eventually granted. The process must also involve the parties who will actually grant and take the lease, leaving scope for uncertainty if an interest changes hands between agreement and completion.

The Law Commission's proposed answer is to bring the process into the lease itself. A contracted-out lease would contain a prescribed warning explaining what the tenant is giving up, together with a declaration signed by the tenant on execution to confirm that it has read and understood the warning. Both would appear prominently in an outlined text box, replacing the separate warning notice and declaration process.

An agreement for lease, renewal option or guarantee would contain similar prescribed wording, binding the parties and their successors to contract out the future lease when it is granted.

A similar issue arises when a protected tenant agrees in advance to surrender its tenancy, perhaps as part of a move to another unit. Just as a tenant must be warned before giving up security of tenure on entering a new lease, the law requires a similar safeguard here, called the 'validation process'. An agreement to surrender is currently void unless the statutory validation process is followed. If that safeguard is retained, the Law Commission provisionally proposes simplifying it along much the same lines as contracting out, although it has not yet decided whether validation should remain at all and is asking consultees for their experience of it in practice.

Section 28 of the Act raises a separate, more fundamental question. The provision has not been amended since 1954 and, where its conditions are met, a written agreement between a landlord and tenant for a future tenancy of the holding, or of the holding together with other land, causes the existing tenant to lose their statutory right to renew their existing tenancy under the Act. The Law Commission is concerned that section 28 no longer sits neatly with the later contracting-out and validation regimes, and that it may cause tenants to lose protection unexpectedly, particularly where a conditional agreement for a future tenancy does not proceed as planned. It does not yet propose a solution but asks what purpose section 28 now serves and whether it should be reformed or repealed.

The paper also addresses the 'Thomas van Staden trap' by proposing that any written tenancy within the Act should be capable of being contracted out, rather than limiting the process to fixed-term tenancies. This would remove the drafting trap that can arise where the contractual term includes an uncertain period of holding over.

Grounds of opposition under scrutiny

The Law Commission has heard little evidence of serious problems with Grounds A to E of section 30(1) of the Act (the statutory grounds to oppose a renewal tenancy) and therefore makes no provisional proposals to change them, although it still invites consultees to identify any difficulties. Most of the attention instead falls on Ground F, the redevelopment ground, and Ground G, the landlord's own-occupation ground, both of which have prompted considerably more concern among stakeholders.

The Supreme Court's 2018 decision in S Franses Ltd v Cavendish Hotel (London) Ltd changed the landscape for Ground F by requiring a landlord to show a firm and settled intention to carry out the works whether or not the tenant wishes to remain. Lord Sumption's 'acid test' asks whether the landlord would carry out the same works if the tenant left voluntarily. Landlords argue that the decision disrupted settled practice and made Ground F too difficult to establish, while some tenant representatives maintain that the ground can still be used oppressively. The Law Commission's view is that the decision strikes the right balance, and it therefore proposes no change to the intention test.

The more difficult question is what kind of works should qualify for a landlord to establish Ground F.  Currently, a landlord must prove an intention to carry out works of demolition, reconstruction or substantial construction, for which it needs vacant possession of the premises.  This language does not expressly rule out modern construction methods but may leave refurbishment and retrofit outside the existing categories or below the required threshold. Given the volume of retrofit and refurbishment work now being driven by net zero targets and ageing stock, the Law Commission acknowledges that the Ground F threshold test is problematic, and puts forward three possible approaches: expanding the categories and adding a purpose or motive test (linked to environmental performance or compliance with planning requirements), expanding them without that filter, or replacing the list with a general test of "substantial works". Each option would create more room for retrofit and changing construction methods, but each would also weaken tenants' security to some degree.

Ground G is also marked out for a targeted change. The Commission provisionally proposes abolishing the rule in Nursey v Currie, so that alterations planned before the landlord takes occupation would no longer affect whether the ground is made out. That appears to be a sensible way of removing an artificial and uncertain trap. The paper also raises the wider question whether purchaser-landlords can benefit unfairly from a tenant's goodwill despite the existing five-year ownership rule.  The five-year rule generally prevents a purchaser-landlord from relying on Ground G unless it has been the competent landlord for the five years preceding termination of the tenancy. It was intended to discourage landlords from buying tenanted premises simply to displace the tenant, take over the same business and benefit from the goodwill the tenant has built up.  The Law Commission questions whether the five-year safeguard is sufficient, or whether extending it could restrict genuine owner-occupiers and encourage more contracting out.

Rent and renewal terms

The Law Commission does not propose changing either the open-market valuation test in section 34 or the use of comparables when applying it. One issue nevertheless remains contentious, which is whether the rent payable by a sitting tenant should reflect the equivalent of a rent-free fit-out period that would be offered to a new tenant. County court decisions point in different directions. Although a sitting tenant will not usually need time to fit out premises from which it already trades, section 34 proceeds on the basis of a hypothetical new letting, so arguably the renewal rent should reflect the rent free fit out period. The Commission takes no provisional view and instead asks whether the equivalent rent-free period should be reflected and, whichever answer is preferred, how the Act should achieve it.

Alternative rental models bring their own difficulties, as the Act does not deal easily with turnover rent or with disputes about the rental model itself, its component parts and the lease terms linked to it. The Law Commission provisionally proposes allowing the court to carry forward a turnover model from the existing lease. It also asks whether the court should be able to change that model on renewal and, if so, how.

The Law Commission also looks at the date on which a renewal tenancy commences (in the absence of agreement), which under the current law also fixes the rental valuation date, currently three months and three weeks after the court determines the terms of the new lease. Because that date lies in the future and depends on when a hearing happens to be listed, it is uncertain and open to tactical delay, which is part of why a complex interim rent regime is needed to bridge the gap. To address this, the Law Commission proposes fixing the valuation and commencement date for the renewal tenancy at an earlier set point, either the date six months after the section 25 notice or section 26 request was served, or the (later) expiry date specified in that notice, removing uncertainty and reducing the need for interim rent. 

For other lease terms, the Law Commission favours retaining the established O'May approach, under which the court begins with the existing lease and asks whether a proposed change is fair in all the circumstances. It does not simply import whatever terms happen to be standard in the current market. The outcome, when applying O'May can be uncertain, but a purely market-based test could tilt too far towards landlords and undermine the protective purpose of the Act. The Law Commission also rejects the idea of mandatory or prohibited terms, including compulsory green lease clauses. That caution is understandable because environmental clauses are varied and developing quickly, and legislation could freeze practice just when it needs room to evolve.

The paper does explore a more modest 'guided approach' to environmental terms. Environmental matters could become an express factor for the court to consider under section 35 (when determining the "other terms" of the lease apart from rent, duration and premises), either by reference only to the MEES regime or by extending the factor to wider environmental and sustainability concerns. In either case, the court would retain its overall discretion under the existing O'May test.

Where and how should disputes be decided?

Court proceedings can be slow and expensive, sometimes lasting for years, and the Law Commission accepts that this can discourage parties from using the Act. It also identifies a gap in specialist knowledge. County court judges are skilled generalists, but lease renewals can involve difficult questions of commercial property valuation and market practice.

Against that background, the paper presents three possible reforms. Higher-value or more complex cases could make greater use of the High Court, all opposed and unopposed renewals could move to the property tribunal, or jurisdiction could be divided so that unopposed renewals go to the tribunal while opposed cases remain in court. Moving cases to a tribunal could bring greater property and valuation expertise. A divided system, however, might add cost and confusion, particularly if a landlord withdraws its opposition or fails to establish it and the character of the case changes part-way through.

One option has already been ruled out. The Law Commission will not pursue compulsory, binding ADR because of the risk of infringing Article 6 of the European Convention on Human Rights, as well as the loss of precedent and transparency and the potential to exacerbating power imbalances between the parties. Instead, the paper asks about a bespoke pre-action protocol, standard case management directions and a tailored Part 36-style costs regime, while also considering whether either party should be entitled to require non-determinative ADR such as mediation or early neutral evaluation.

Mishcon comment

• The proposed contracting-out process is the clearest practical improvement in the paper. Bringing the warning and declaration into the lease should reduce cost, delay and accidental non-compliance while retaining a prominent safeguard for tenants. Its success will depend on clear prescribed wording and proportionate rules, so that minor presentational errors do not simply generate a new category of validity disputes.
• Raising the fixed-term threshold for qualifying tenancies and excluding most periodic tenancies would bring the Act closer to the reality of short and flexible occupation, but the trade-off should not be overlooked. Default protection would be reduced, particularly for smaller businesses that remain in occupation for years under rolling arrangements. The exceptions, together with any chaining rule that survives, will need to be clear enough for landlords and tenants to understand without needing specialist advice at every turn.
• Ground F plainly needs to accommodate refurbishment, retrofit and newer construction methods. A general 'substantial works' test would be the most adaptable option, although it would also make the greatest inroad into security of tenure. Expanding the existing list and adding a purpose test would be more targeted, but there is a risk that arguments about the nature of the works would simply be replaced by arguments about their purpose.
• The dispute resolution options reveal a genuine tension between specialist expertise and procedural simplicity. Moving cases to the tribunal could improve the quality of decision-making on property and valuation issues, while dividing jurisdiction could create expensive arguments about where a case belongs and when it should transfer. In the end, improving the procedure within a single forum may prove more valuable than changing the forum itself.

Before joining Access, Sam was a senior leader and member of the founding team at Motive Partners, a specialist private equity firm focused on financial technology investments across venture, growth and buyout. From the firm’s formation in 2015 until January 2025, he played a central role in building its international platform and developing its value-creation capabilities. He also held an operational leadership role at portfolio company Dun & Bradstreet, serving as Executive Vice President and Chief Marketing Officer during Motive’s ownership.

Alongside his work in private equity, Sam founded and chairs Independent Sponsor News, a data and news media platform covering independent sponsor activity. He is also Chair of OPUS, a global platform helping early-stage entrepreneurs accelerate their founder journeys, and sits on the Board of the Chief of Staff Association. He previously served on the Board of the World Wide Web Foundation.

Mirae is a University of Oxford spinout built on computational health research from the University’s Computational Health Informatics Lab. The company was founded by CEO Anuj Patel, James Nishiyama Finucane and Professor David Clifton, whose research in disease progression modelling provides the algorithmic foundation for Mirae’s technology.

Mishcon de Reya is seeing continued momentum in Oxford’s buoyant technology market, advising on several recent funding rounds. The combination of rich scientific talent alongside best-in-class science facilities means Oxford remains a global hub for innovation attracting investment to support the world changing technologies that emerge from the ecosystem.

The funding will support the launch and continued development of Mirae’s platform as the company seeks to improve access to consistent, data-driven care for people living with complex chronic conditions.

Anuj Patel, co-founder and CEO of Mirae, commented: “Where you live should not dictate the quality of care you receive. A lot of the variability in care and outcomes comes from the fact that clinicians are working without a full view of what has happened between visits. When you combine experiential data with clinical data, you begin to understand and model disease more effectively and have a path towards true precision medicine.”

Nicola McConville, Partner at Mishcon de Reya, said: “We are so pleased to have supported Anuj, David and the wider Mirae team on this funding round. Mirae is applying outstanding Oxford research to a deep challenge in chronic care: giving clinicians a fuller and more continuous picture of each patient’s experience. We look forward to seeing the team use this investment to develop and scale its platform, with the potential to improve outcomes for patients living with complex chronic conditions.”

What is PISCES?

The Private Intermittent Securities and Capital Exchange System, known as PISCES, is a new regulatory framework for the secondary trading of private company shares. It is designed to allow eligible private companies to create liquidity through regulated, intermittent share trading events, without becoming publicly listed.

For scaling companies, founders, early-stage investors and employee shareholders, PISCES offers a potential route to create liquidity without pursuing an immediate IPO or full exit. PISCES platforms also provide a way for companies to broaden access to investors, support employee share ownership and give qualifying individuals connected to the business an opportunity to participate in secondary share trading events.

Our guide to trading private company shares

This guide explains how the PISCES framework operates, including which companies may be eligible to trade on a PISCES platform, who can buy shares, and the degree of control companies may have over pricing, investor access and the structure of a trading event. It also considers how PISCES compares with listed and quoted public markets.

We also consider practical issues companies should consider before using a PISCES platform, including

• core information disclosures
• disclosure liability
• settlement
• stamp duty treatment
• platform costs; and
• what to expect when preparing to participate on a PISCES platform.

Download the guide for a detailed overview of PISCES and the legal, regulatory, tax and incentives issues that companies, shareholders and investors should consider before participating in a PISCES trading event.

Download

How Mishcon de Reya can help

Having been involved in the development of the PISCES framework since its inception, including by responding to Government consultations on the rules, we bring together expertise across corporate, capital markets, incentives and financial regulation to advise on the full range of issues that PISCES raises and the choices available to our clients.

Seventeen will qualify as solicitors and begin their roles as Associates in September 2026. The group also includes Amani Alom and Karolina Tomaite, who are progressing through Mishcon de Reya’s six-year Solicitor Apprenticeship programme. They are due to qualify and begin their roles as Associates in February 2027, following successful completion of the programme.

The 19 trainees will join teams across the firm’s Corporate, Dispute Resolution, Employment, Innovation, Private and Real Estate departments.

Daniel Lipman, Partner and Training Principal at Mishcon de Reya, said:

“Our junior lawyers are the future of the firm, and I am delighted that 19 members of this year’s cohort have chosen to continue their careers with us, resulting in a retention rate of 86%. They have embraced every opportunity to learn and develop while making a valuable contribution to their teams and our clients.

"It is particularly rewarding that this group includes two colleagues who are progressing through our Solicitor Apprenticeship programme, which provides an alternative route into the profession while combining academic study with extensive practical experience.

"We are very proud of all 19 and look forward to seeing their careers flourish at Mishcon.”

The 19 trainees and the teams they will join are: 

Corporate

• Matthew Gold – Corporate Tax
• Imane Bary – Corporate Private Wealth and Corporate Real Estate

Dispute Resolution

• Amani Alom* – Fraud
• Georgia Dalton-Stone – Fraud
• Meg Howell – Criminal and Regulatory Defence
• Sam Leeves – Fraud
• Kitty Pendrigh – Fraud
• Callum Smith – Commercial Litigation

Employment

• Lily Deans – Employment Core

Innovation

• Laura Simmons – Corporate Innovation & Venture Capital, and Emerging Companies
• Sophie Hill – Intellectual Property
• Ria Sreekumar – Data

Private

• Ruby Eslava-Pentelow – Private Commercial Litigation
• Nick Farrington – Private Wealth and Tax
• Marina Hackett – Private Wealth and Tax
• Hettie Halden – Family
• Katie Mackenzie – Private Commercial Litigation
• Karolina Tomaite* – Immigration

Real Estate

• Charlotte Lowe – Real Estate Finance

*Amani Alom and Karolina Tomaite are due to qualify as solicitors and begin their roles as Associates in February 2027, following successful completion of Mishcon de Reya’s six-year Solicitor Apprenticeship programme.

The remaining members of the group take up their roles as Associates in September 2026.

 “If these were human errors, would the accusations be as loud? I think this shows that we are all still working out how we should use AI — where the line should be drawn.”

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Clare discussed the prospect of greater protection for long-term cohabitants but cautioned that the proposed eligibility criteria could be too broad, particularly for young, childless couples who may move in together primarily to reduce costs. She also highlighted the possible implications for parents who contribute towards a child’s house deposit. 

Commenting on the proposed three-year qualifying period, Clare said: “Three years when you are young and haven’t got any children and are just starting out is not the same as three years when you are 35 and in a relationship. Care will be needed to ensure that the identification of potential claimants is not too broad.”

Read the coverage: 

• The i Paper
• Law Society Gazette
• Mail on Sunday/This is Money

Watch the Mishcon Minute

• The Supreme Court has dismissed an appeal by GLO follower claimants who sought to have their claims decided in line with a favourable test case decision, despite the legal basis for that decision having since been shown to be wrong.
• While a GLO test case decision generally binds all follower claims, the court retains a discretion to "order otherwise". That discretion is narrow: here, the court departed from the default position because the law had shifted so fundamentally that it would be unjust to decide the follower claims on a basis now known to be wrong.
• The decision illustrates when the court will exercise that discretion, and underscores the procedural benefits of the GLO regime.

What are GLOs?

Group Litigation Orders ("GLOs") are a procedural mechanism enabling the English courts to manage multiple related claims together, streamlining complex litigation, and ensuring consistency where several claimants raise the same or similar issues against the same defendant. Please see our discussion of the evolving GLO landscape.

When a GLO is made, a group register is established, common issues are specified, and one or more claims are typically selected as test cases, with the remaining "follower claims" stayed pending the outcome. Any judgment or order on the GLO issues is then binding on all other claims on the register, unless the court orders otherwise.

The court's discretion to disapply a test case decision from the follower claims is the crux of the Supreme Court's recent decision in AXA Insurance UK plc & Anr v Commissioners of Inland Revenue & Anr [2026] UKSC 24.

Background

The AXA proceedings were included on the group register established under the CFC and Dividend GLO, which was granted in 2003 in respect of claims concerning the lawfulness of certain tax provisions. Three test cases were selected from the group register to determine different common issues. The most relevant to the AXA proceedings was a claim brought by companies in the Prudential group. The AXA proceedings themselves were stayed until 2021, pending the outcome of those test cases.

Once the test cases were determined, the AXA claimants, as parties on the group register, argued that they should be entitled to rely on the decision in the Prudential test case.

However, between the decision in Prudential and the resurrection of the AXA proceedings, the law shifted significantly, effectively reversing the relevant parts of the Prudential decision on which the claimants sought to rely.

The central question for the Supreme Court was therefore whether the AXA claimants could rely on the Prudential decision, despite the law underpinning it having fundamentally changed.

The decision

The Supreme Court acknowledged the need for great caution in balancing two competing considerations when deciding to "order otherwise":

1. the need to maintain the integrity of the GLO regime; and
2. the need to decide a dispute on the basis of a correct understanding of the law as it stands at the time of the decision.

However, in the exceptional circumstances in which the law had changed fundamentally between the decision in the Prudential test claim and the lifting of the stay, the Supreme Court accepted that it would be inappropriate to decide the follower claim on a basis now known to be wrong in law.

The Supreme Court considered the following factors:

Implications

The judgment underscores how rarely the English court will exercise its discretion to disapply a GLO test case decision from follower claims. The Court acknowledged that GLOs vary widely in the disputes and issues they cover, making blanket guidance inappropriate. For example, had the decision led to a costly re-litigation, the Supreme Court may have decided in favour of the claimants.

In reaching its decision, the Supreme Court weighed the competing interests of finality and consistency within the GLO regime against the parties' right to have their dispute resolved according to a correct understanding of the law. While the latter prevailed in the AXA proceedings, the Court emphasised the value of the GLO regime in streamlining litigation, demonstrating support for the flexibility of the English procedural system in accommodating the various ways in which group actions can arise.

In 2021, Anya opened The Village in Chelsea, a collection of stores centred around the Anya Café. It has hosted experiences including The Ice Cream Project, Anya’s Grotto and a partnership with the Women’s Institute. 

Anya’s sustainability initiatives include ‘I’m Not A Plastic Bag’, ‘I Am A Plastic Bag’, The Universal Bag and the biodegradable Return to Nature collection, reflecting her belief in ‘progress, not perfection’. 

Anya is a trustee of Tate and The Royal Marsden Cancer Charity, and an Emeritus Trustee of the Royal Academy of Arts and the Design Museum. She was made a Dame in 2024 for services to fashion and business, following a CBE in 2017. She is also the author of the Sunday Times bestseller If In Doubt, Wash Your Hair. 

What is 'parental alienation'?

'Parental alienation' is a widely recognised phrase often used to describe circumstances where a child becomes hostile towards, rejects or resists spending time with one parent. However, the courts now focus on whether there have been ‘alienating behaviours’ – whether a child is rejecting one parent without any reasonable explanation other than things that a parent does, or fails to do, which cause a child’s reluctance, resistance or refusal to have a relationship with the other parent.

The court will only make a finding of alienating behaviour where it is satisfied that:

1. the child is reluctant or refuses to have a relationship with one parent;
2. there is no other reasonable explanation for this, such as that parent’s own behaviour or the child’s natural bond with the parent they live with; and
3. the other parent’s behaviour has directly or indirectly caused the child’s reluctance or refusal.

A child’s reluctance to spend time with a parent does not, by itself, establish alienating behaviour. There may be genuine reasons for that reluctance, including domestic abuse or other safeguarding concerns. The court will consider all relevant factors.

What can alienating behaviour look like?

Alienating behaviour can range from the overt - such as telling a child that the other parent does not love them, to more subtle, nuanced conduct that may be much harder to recognise, for example:

• becoming cold, withdrawn or disapproving when a child returns home happy after spending time with the other parent, making them feel guilty for having enjoyed themselves; or
• involving the child in adult issues by discussing the break-up, finances or court proceedings in a way that encourages them to blame or take sides against the other parent.

However, this type of conduct will not automatically be treated as alienating behaviour. The court must be satisfied that it caused or contributed to the child’s reluctance or refusal, with no other reasonable explanation.

Alienating behaviour can be a single, extreme incident or a pattern.

How does it affect children?

Children can be highly sensitive to subtle behaviours and absorb cues even where neither parent fully appreciates the impact.

Children exposed to alienating behaviour can suffer significant emotional harm, including anxiety, guilt and divided loyalties, feeling that loving one parent means betraying the other.

This can affect their self-esteem, sense of identity and ability to form trusting relationships, and may lead to the loss of an important relationship with a parent and wider family.

What can be done?

If you are concerned about potential alienating behaviours, the most important thing to do is take steps as soon as possible, before attitudes and patterns of behaviour become entrenched.

Speak to a solicitor 

A family solicitor can explain your options, including negotiation, mediation or a court application. Keep a clear, factual record of relevant communications, any missed contact and any changes in your child’s behaviour.

The role of Cafcass 

If proceedings become necessary, Cafcass may speak to the parents and, in areas where new child-focussed courts are operating, the child before reporting to the court. It will consider any safeguarding concerns, the child’s wishes and feelings, the reasons for their resistance and the effect of each parent’s behaviour.

What the court can order

The court’s paramount consideration is the child’s welfare. It will apply the statutory welfare checklist, considering factors such as the child’s wishes and feelings, their needs, any risk of harm and the likely effect of changing their circumstances. If in the child's best interests, the court can order gradual, supported or supervised contact and enforce existing arrangements. In serious cases, where the court finds that alienating behaviours are present, it may reconsider where the child lives. A change of living arrangements will not be made lightly.

How Mishcon de Reya can help

Our specialist Family team advises parents on complex and sensitive disputes involving children, including allegations of alienating behaviour, safeguarding concerns and child arrangements. If you want to seek independent and specialist legal advice, please get in touch.

Despite 2025 marking the 50th anniversary of the Equal Pay Act 1970 coming into force, the gender pay gap remains stubbornly high. Office for National Statistics figures for April 2025 put the headline gap at 12.8%. (Gender pay gap in the UK: 2025).

Recognising that the current equal pay framework is excessively complex, costly and slow, the government has published a detailed consultation on modernising equal pay and pay discrimination law in Great Britain (Equal pay and pay discrimination). The consultation has three objectives: preventing pay discrimination; protecting women, disabled, ethnic minority and outsourced workers effectively; and making disputes easier and cheaper to resolve.

For anyone who has faced the unenviable task of advising on the current regime, the proposal to fix it before extending it is welcome. However, the risk is that in pursuing this goal, the government may make the regime more, rather than less, complicated.

Read in full or download the article.

Ali said employers should “manage expectations and explain how competing requests will be dealt with to avoid issues”.

She also warned employers not to assume dishonesty where an employee calls in sick after a holiday request has been refused. Instead, employers should follow their usual sickness absence procedure and consider the circumstances before deciding whether any investigation or disciplinary action is appropriate.

Read the article in full.

The discussion covers: 

• Identifying the right AI use cases and business problems to solve 
• Building governance frameworks that bring legal, IT and the C-suite together 
• Reviewing AI vendor contracts, data use, indemnities and IP ownership 
• Understanding liability and responsibility in the agentic AI era 
• Turning visible AI programmes into valuable, measurable business investments 
• Balancing speed, risk and regulatory uncertainty without falling into decision paralysis 

With practical insight into governance, regulation and implementation, the speakers highlight why AI success depends on more than adopting new tools. From clear strategy and senior leadership to robust controls and prepared data, this video offers guidance for organisations looking to harness AI responsibly while protecting their position. 

Featuring Ashley Williams (Partner, Head of the Technology Group), Dan Sinclair (Partner, Strategy & Growth) and Nina O’Sullivan (Client Engagement Partner). 

To learn more, visit our AI resource centre or explore our Corporates hub. 

• In Accord Healthcare Ltd v Novartis AG, the Patents Court rejected validity challenges to Novartis' patent and supplementary protection certificate (SPC) for Entresto (sacubitril/valsartan), a blockbuster heart failure treatment.
• Rejecting attacks based on plausibility, obviousness, collocation, lack of technical contribution and SPC validity, Mr Justice Meade upheld both rights and confirmed that Accord's proposed generic product would infringe.
• On plausibility, whilst the judge described the outcome as a 'close call', the judgment confirms that a qualitative disclosure of successful experimental work may satisfy the plausibility threshold without numerical data, provided the skilled person would understand the application as communicating that such work had been carried out.
• The judgment also addresses combination pharmaceutical inventions and reliance on the regulatory dossier when identifying the relevant "product" for SPC purposes.

Background

Accord sought to clear the way for a generic version of Entresto by revoking Novartis' European patent (EP (UK) 1 467 728 B1) (Patent) and related SPC (SPC/GB16/025).  Entresto treats heart failure, and in some territories, hypertension.

Accord challenged the Patent on several grounds and the SPC consequentially and independently. Novartis counterclaimed for threatened infringement. By trial, Accord accepted that its proposed generic would infringe a valid SPC.

Entresto combines the angiotensin receptor blocker (ARB) valsartan and neutral endopeptidase inhibitor (NEPi) sacubitril. In Novartis' product, the active ingredients form a co-crystal complex; Accord’s intended product contained separate salts mixed together.

The High Court's decision on validity

In what may be his final High Court judgment before he heads to the Court of Appeal, Mr Justice Meade comprehensively addressed each of Accord's validity attacks.

Lack of plausibility

Plausibility was a central issue in the case.  The question was "whether the Patent makes plausible that the combination of valsartan and sacubitril specifically would provide a clinically useful result in hypertension".

The leading plausibility authority remains the Supreme Court's decision in Generics (UK) Ltd v Warner-Lambert Co LLC [2018] UKSC 56 (Warner-Lambert). This was affirmed by the Court of Appeal in Sandoz Ltd v Bristol-Myers Squibb [2023] EWCA Civ 472 (Apixaban CA) and Generics (UK) Ltd v AstraZeneca AB [2025] EWCA Civ 903 (Dapagliflozin CA). In broad terms, plausibility requires a patent application to provide a credible basis for believing that the claimed invention will achieve the technical effect asserted by the patentee.  A mere assertion that an invention works will not be enough; the application must contain some disclosure that makes the claimed effect plausible to the skilled person.

The patent application in question did not disclose any numerical results, instead relying on qualitative statements that testing of the claimed combination had produced positive outcomes.  This was ultimately sufficient for Mr Justice Meade, who held that, read as a whole, the application plausibly disclosed successful testing of the valsartan/sacubitril combination in animal hypertension models, with positive results compared with the individual components.

Mr Justice Meade described the issue as a "close call". He emphasised that the court's task was to assess what the application disclosed, rather than engage in "detective work" to infer unreported experiments. While noting that his view had "shifted back and forth during the trial", he concluded that any doubts arose when individual passages were considered in isolation rather than the application as a whole.

"Classical" obviousness

Accord's primary obviousness attacks relied on two prior art documents: Ksander and Trippodo. Mr Justice Meade rejected them, stressing the complexity of the underlying science and that neither the prior art nor common general knowledge directed the skilled person to the claimed valsartan/sacubitril combination. Neither citation therefore rendered the invention obvious.

Collocation

Mr Justice Meade rejected Accord's allegation that the invention was a mere collocation of two known compounds. It was sufficient that valsartan and sacubitril interacted positively rather than adversely; quantitative proof of synergy was unnecessary.

Lack of technical contribution

Accord argued that the Patent made no technical contribution over prior art documents Trippodo and Darrow, and merely selected arbitrarily from known ARBs and NEPis. Mr Justice Meade disagreed, finding that the Patent disclosed testing of the valsartan/sacubitril combination and was shown to produce a beneficial effect, not merely compounds from known classes. As he observed, demonstrating for the first time an advantage of a specific member of a broad class is itself a technical contribution.

Invalidity of SPC even if the Patent is valid

Mr Justice Meade's SPC analysis centred on the identification of the relevant "product" for the purposes of Article 3 of the SPC Regulation (Regulation (EC) No 469/2009). In addressing that issue, Mr Justice Meade undertook a detailed review of the regulatory materials, including the Summary of Product Characteristics (SmPC), EMA Assessment Report (EPAR) and marketing authorisation documents.  He placed significant weight on those documents when determining that the relevant product was the combination of valsartan and sacubitril, rather than the marketed co-crystal complex.

That conclusion was decisive to the application of Articles 3(a) and 3(b).  Under Article 3(a), the combination was expressly claimed and specifically identifiable from the Patent.  Under Article 3(b), the marketing authorisation was held to authorise the same product namely the sacubitril/valsartan combination, the co-complex itself being treated as a matter of formulation rather than a distinct active product. The SPC was therefore valid and, as Accord accepted, its proposed generic product would infringe.

Key takeaways

The decision provides guidance on plausibility, combined inventions and SPC validity. In particular, on plausibility, it reinforces the post Warner-Lambert principle that plausibility must be found in the application itself: a bare assertion of efficacy is not enough.  Unlike in Apixaban CA and Dapagliflozin CA, where the courts found only unsupported assertions of therapeutic efficacy and insufficient disclosure of experimental support for the claimed invention, Mr Justice Meade held that the application would be understood as disclosing positive experimental work with the claimed combination.  This judgment therefore confirms that plausibility may be established through qualitative disclosure of experimental results, without the need for quantitative data, provided the skilled person would understand the application as communicating that such work had been carried out.

The judgment also highlights the Patents Court's reluctance to reconstruct inventions using simplified reasoning in scientifically complex fields. In addition, where a patent plausibly demonstrates a beneficial effect for a specific combination selected from broader known classes, that selection is unlikely to be viewed as an arbitrary one lacking technical contribution.

Finally, the SPC analysis highlights the importance of the regulatory dossier when identifying the relevant "product" for SPC purposes.  Given Mr Justice Meade's approach, courts are likely to continue focusing on the active ingredients identified through the regulatory approval process rather than differences in formulation, salt form or co-crystal structure. The judgment reinforces the established SPC principle that changes in pharmaceutical form or presentation will not ordinarily create a different "product" where the underlying active ingredients remain the same.

• The Court of Appeal has upheld a High Court finding that publicly available information, which had been packaged together into an investment strategy, was protected by the law of confidence.
• The information did not lose that confidence by virtue of being disclosed to over 200 potential investors.  What mattered was that the information had not been made generally available to the public, rather than the number of people to whom it had been passed.
• The term "public domain" in an NDA means information that is generally accessible to the public.  Mere disclosure to a few people will not put confidential information in the public domain.

Background

The claimant (Illiquidx) identified and developed an opportunity for non-US investors to invest in Venezuelan sovereign debt, something that was not being done due to US sanctions prohibiting US investors from doing this.

Illiquidx entered into a joint venture agreement and a non-disclosure agreement (NDA) with the defendants to launch a fund exploiting that opportunity. Following the collapse of the joint venture, the first defendant launched its own Venezuelan fund, taking advantage of the same opportunity. Illiquidx sued for breach of the NDA (the contractual claim), and equitable (non-contractual) claims for misuse of confidential information and trade secrets. 

As is common in claims for misuse of confidential information, Illiquidx struggled to identify precisely what its confidential information was. After extensive re-pleading, the High Court found the key confidential information was the "Business Opportunity" of the idea of setting up a sanctions-compliant fund to exploit undervalued Venezuelan debt. 

Illiquidx succeeded on its claims in the High Court, notwithstanding that:

1. Much of the information was already in the public domain – crucially, however, Illiquidx's packaging up of the information and formulating it into the Business Opportunity was not.
2. Illiquidx had disclosed the Business Opportunity in marketing materials sent to 17 potential investors prior to the joint venture, and to a further 200 during the joint venture.

The Defendants appealed.

Had the Business Opportunity entered the public domain?

The Court of Appeal upheld the High Court's findings that Illiquidx's disclosures of the Business Opportunity had not caused it to enter the public domain and thus lose its quality of confidence. As has become the trend in confidential information cases, the court focused on the accessibility of the information, rather than the number of people to whom it had been disclosed. Whilst the Business Opportunity had been sent to a number of people, it had not been made generally available. It had been sent to a restricted number of people (even if that number was large), had not been made generally available, and the disclosures had been marked "confidential". Crucially, the information had not fallen into a competitor's hands.

The Court of Appeal gave short shrift to the defendants' arguments that:

1. the words "Strictly Private & Confidential" appeared in small font in the disclosed materials – no evidence had been advanced as to why this mattered; and
2. Illiquidx had not provided evidence that the recipients of the information had not passed it on – the burden of proving this was on the defendants, not the claimant.

The meaning of "public domain" in an NDA

As is standard, the NDA between the parties provided that the restrictions it imposed on the use that could be made of the confidential information did not apply to information that was already in the "public domain".

The defendants argued that the confidential information had entered the public domain if it was disclosed to a single person who was not bound by a duty of confidentiality to keep it secret. The Court of Appeal rejected this:

• In the law of confidence, public domain means information that is "so generally accessible that, in all the circumstances, it cannot be regarded as confidential" (Attorney-General v Observer Ltd [1990]).
• Where an expression with a well-established meaning is used in a professionally drafted contract (which the NDA was), it was to be assumed that the parties intended it to have that well-established meaning, unless the wording of the contract indicates to the contrary. There was nothing in the NDA to indicate the parties had not intended "public domain" to have its commonly understood legal meaning.

 Key takeaways

1. For information to be "confidential", each element of the information does not itself have to be confidential: the packaging of publicly available pieces of information into a broader strategy or idea can give rise to the necessary quality of confidence.
2. Information can be confidential even if it has been disclosed to a large number of people. What matters is not the number of people who have seen the confidential information, but rather whether that information is generally accessible. Therefore, “the true criterion is not secrecy … but inaccessibility” (Racing Partnership v Done Bros [2020] EWCA 1300).
3. The "public domain" exclusion in an NDA will not exclude information just because it may have been available to a few people who were not obliged to keep it confidential. If, when drafting an NDA, you want the term "public domain" to have a different meaning, then this must be spelt out in the NDA.

How Mishcon de Reya can help

Our multi-disciplinary team of specialists, together with our dedicated Cyber Risk team, can help you identify, protect and enforce your confidential information and trade secrets, from practical audits and policies through to swift injunctive action if they are misappropriated. Get in touch to find out how we can help safeguard your valuable information.

Background

Back in July 2025, the FCA issued a Decision Notice against Mr Woodford where he was fined £5,888,800 and banned from holding senior manager roles and managing funds for retail investors.

The FCA found that between July 2018 and June 2019, Mr Woodford and asset management firm Woodford Investment Management (WIM) made unreasonable and inappropriate investment decisions, disproportionately selling more liquid investments and buying less liquid ones. This meant that at the time of suspension, only 8% of the investments held by the fund managed by Mr Woodford could be sold within 7 days, against a regulatory requirement that investors should have been able to access their funds within 4 business days. The FCA further concluded that Mr Woodford held a defective and unreasonably narrow understanding of his responsibilities.

Both Mr Woodford and WIM have referred the Decision Notices to the Upper Tribunal (UT). The findings in the Decision Notices are therefore subject to the UT hearing.

What Mr Woodford Has Been Doing

Following the collapse of his fund management business, Mr Woodford established a new venture operating under the trading name W4.0, a company registered in the United Arab Emirates. Through this platform, Mr Woodford publishes investment-related content where members of the public, including UK readers, can access. These contents include podcasts, articles, short videos and newsletters.

The FCA alleges that, through this platform, Mr Woodford and W4.0 are providing regulated investment advice and making financial promotions, both of which require authorisation under FSMA. The FCA is of the view that the activity breaches the following sections of FSMA:

section 19: general prohibition on carrying on regulated activities without authorisation; and

section 21: restrictions on inviting or inducing another to engage in investment activity.

Comment

The line between providing regulated investment advice and simply sharing views or journalistic commentary can be difficult to draw. For a lot of practitioners, it can be challenging to provide clear guidance to clients as to where that boundary lies. The existing regulatory framework does not offer a clear and simple test, and the analysis is largely fact-sensitive.

Should the FCA's civil proceedings proceed to a full hearing, the case may provide welcome guidance for practitioners navigating this ambiguous area. A judicial determination as to what features would point towards a regulated advice would be helpful to both legal advisers and content creators. 

It is also notable that W4.0 is based outside the UK. This is another example of the FCA showing a willingness to act against entities operating outside the UK but with activities directed at UK consumers. The FCA has been increasingly willing to take actions to protect retail investors from harm regardless of where the person or entity causing the harm is based. See for example our report on the FCA's action against global crypto exchange HTX. Firms and individuals based outside the UK but who have a UK consumer base should be cautious and take careful note.

The Court of Justice of the European Union (CJEU) in its judgment Case C-788/24 has ruled on when publishing a work online that is copyright-protected in some EU Member States, but in the public domain in others, amounts to an unauthorised "communication to the public".

• A geo-blocking measure that is genuinely up to date ("state of the art") can be enough to avoid infringement in a country where the work is still protected, even if determined users can circumvent it using a VPN.
• However, a simple "click to confirm your location" pop-up is not good enough. Self-declaration mechanisms, which rely on users being honest, do not count as effective technological measures.
• If a publisher's geo-blocking is found to be inadequate, the liability sits with the publisher that published the content, not with the VPN provider that helped a user get around the block.

Overview of the decision

Certain parts of Anne Frank's diary remain protected by copyright in the Netherlands until 2037, but are already in the public domain in other EU countries, including Belgium. A Belgian organisation published a scholarly edition of Anne Frank's manuscripts online, free of charge. To prevent Dutch users accessing the content, the website used geo-blocking based on the user's IP address, plus a pop-up asking visitors to confirm they were accessing the site from a public domain country.

The rightsholder, the Anne Frank Fonds, argued that this still infringed copyright in the Netherlands as an unauthorised communication to the public under Article 3(1) of Directive 2001/29 because the geo-block could be bypassed using a VPN. The dispute reached the CJEU by way of a reference from the Supreme Court of the Netherlands.

The CJEU held that publishing a work behind an effective, "state of the art" geo-blocking measure does not amount to a communication to the public in the country where the work is still protected, though it left it to the referring Dutch Court to decide whether the measure used here was sufficient. The mere theoretical possibility of circumvention does not render a measure ineffective. However, a self-declaration pop-up would not be effective, because it relies entirely on the user telling the truth.

Finally, the court confirmed that, if a geo-block does turn out to be inadequate, responsibility for the resulting infringement falls on the publisher of the content, not on the provider of the VPN.

Whilst the decision concerns cross-border publication within the EU and is not binding on the UK courts, the UK courts may have regard to the court's decision. Potentially, the CJEU's approach raises the possibility of divergence in relation to questions around targeting and accessibility of websites.

Why this matters

The length of copyright protection can vary by country, particularly for older works subject to different national transitional rules. This judgment confirms that publishers cannot rely on mediocre technological measures to prevent access from protected territories, but equally that perfect blocking is not the required standard. The test is whether the technology used is genuinely current and "state of the art".

Publication checklist for publishers

1. Check the copyright status territory by territory 

Before publishing, establish where the work is still protected and where it is in the public domain. Copyright term and transitional provisions differ between Member States, so a work can be free to use in one country and infringing in another. Do not assume that the answer will be consistent across the EU. 

2. Use IP-based geo-blocking, not a self-declaration form 

Implement geo-blocking that identifies and restricts access based on the user's IP address or equivalent technical signal. Do not rely on a pop-up that simply asks the user to confirm their location. 

3. Keep the technology current 

"Effective technological measures" means state of the art at the time of use, not a one-off implementation left untouched for years. Publishers should periodically review their geo-blocking against current circumvention techniques and industry standards, and be able to demonstrate that their measures reflect current practice. That said, a publisher will not be found liable simply because a determined user circumvented a properly implemented, current geo-block. 

4. Document your approach 

Because the assessment is fact-specific and proportionality-based, keep a record of the technology selected, why it was considered state of the art, and when it was last reviewed. This will be essential if a rightsholder later challenges the publication. 

5. Review existing publications, not just new ones 

Publishers with existing multi-territory digital archives or content platforms should audit current access controls against this standard now, rather than waiting for a complaint. A measure that was adequate several years ago may no longer qualify. 

6. Do not assume liability falls on VPN provider  

If geo-blocking is found to be inadequate, the publisher will be the party liable, not the VPN or other infrastructure provider.  

How Mishcon de Reya can help

Our Intellectual Property team regularly advises on cross-border copyright risk, digital publishing strategy and content access controls. If you publish content across multiple territories and want to assess your exposure under this ruling, please get in touch with a member of the Intellectual Property team.

• The UK Government is considering reforms to non-compete clauses, including duration limits, salary thresholds and an outright ban, prompting concern across the financial services sector.
• Industry leaders warn that weaker protections could damage UK competitiveness and drive investment, jobs and talent to other jurisdictions.
• Our employer survey found that 41% preferred the current system, while 86% opposed an outright ban on non-competes. However, 59% of respondents supported some type of reform.
• Non-compete clauses are commonly used amongst financial services firms to strike an appropriate balance between employee mobility and business protection.
• In the meantime, many firms are lengthening non-compete periods and reviewing wider protections for key talent, client relationships and intellectual property.

On 26 November 2025, the Department for Business and Trade published a working paper exploring options for reforming non-compete clauses in employment contracts, with responses invited until 18 February 2026. Alongside a statutory cap on duration and salary-based thresholds, the paper floats an outright ban on non-competes — an option that has caused particular unease in sectors, including financial services, where effective post-termination restrictions are a core tool for protecting client relationships and proprietary trading strategies.

Over the months since publication, the proposals have remained squarely on employers' radar — and hedge funds and alternative investment managers have been among the most vocal critics.

In an article published by the Telegraph, Jack Inglis, chief executive of the Alternative Investment Management Association (AIMA) — which represents hundreds of hedge funds worldwide — described the Government's "radical" plans as capable of "weaken[ing] firms' confidence" in the UK, warning that without certainty over their ability to protect intellectual capital and client relationships, "high-value jobs and investment may simply flow to markets where protections are stronger." Other industry figures have echoed the concern, with one hedge fund managing partner warning that "a blunt instrument" applied to the industry "could do real harm to the City's edge."

We surveyed a cross-section of our employer clients to gauge reaction to the Government's proposals firsthand. The results show that the single most common preference (41% of respondents) was for the Government to maintain the status quo — under which parties remain free to negotiate the terms of post-termination restrictions themselves without statutory restrictions. However, 59% of respondents support some form of reform, indicating a diversity of opinion.

Among those in favour of change, opinion fragmented across the Government's various options: a straight limit on duration was the single most popular choice, favoured by 24% of all respondents, with a combined salary threshold and duration limit for higher earners the next most popular at 19%.

Tellingly, 86% of respondents opposed an outright ban, with most citing confidence in the existing legal framework — under which non-competes must already be reasonable  and tailored to role and seniority — as sufficient protection.

The general pattern of opposing Government-imposed change is consistent with what we are seeing in practice within financial services specifically. One alternative investment firm respondent captured the prevailing view succinctly, noting that "the current position has balance," since parties are free to negotiate terms that can be tested against the facts of the case in court. Another alternative investment firm respondent went further, warning that a ban could push firms to reduce UK investment or relocate business to jurisdictions offering stronger protection. Notably, several respondents to our survey — including firms in the alternative investment space — warned that restricting non-competes could have the opposite of the Government's intended effect, discouraging rather than encouraging investment in the UK.

In the meantime, the trend we see is firms actually lengthening non-compete restrictions. In a market where the skills, relationships and market knowledge of individual portfolio managers are often integral to the success of a firm, there are strong commercial incentives to securing longer restrictions. Absent reform, we expect this trend to continue: the competition for talent among financial services firms shows no sign of abating, and hedge funds in particular continue to make substantial investments in building out pod-based trading strategies that depend on retaining key individuals.

The Government working paper closed to responses on 18 February 2026, and firms now await next steps. It is worth tempering expectations about timing. The previous Conservative Government's last consultation on the same subject was launched in December 2020, yet its response was not published until May 2023, and no legislative action followed before the 2024 general election. Financial services employers should not assume that any reform, if it comes, will happen quickly.

That said, this is not a wait-and-see moment. There are concrete steps employers can take now to stress-test their existing restrictive covenants and reduce their reliance on non-competes as a sole line of defence.

How Mishcon de Reya can help

We will continue to monitor developments in this area closely over the coming months and will update clients as soon as the Government indicates its intended direction. If you have questions about how these proposals might affect your business, please do get in touch with our Employment team.

UPC statistics and court news

The latest set of statistics from the court, covering the period to end of July 2026, have recently been published. So far in 2026, there have been 305 total cases filed at the Court of First Instance, with the majority continuing to come before the German Local Divisions (Munich, Düsseldorf and Mannheim are the top three Local Divisions, followed by The Hague and Hamburg). Interestingly, English now represents the language of proceedings in 69% of cases.

The Patent Mediation and Arbitration Centre (PMAC), officially inaugurated on 2 June 2026, is the UPC's dedicated alternative dispute resolution body. It now offers three services: Information Sessions, Mediation and, as of June 2026, Expert Determination proceedings. Expert Determination is particularly well-suited to resolving standard-essential patent and FRAND licensing disputes, where independent expert input can assist with both technical and commercial aspects of a case.

Case updates

Court of Appeal clarifies urgency requirement for provisional measures

Guardant Health, Inc v Sophia Genetics SA, Sophia Genetics SAS, Sophia Genetics SRL, Sophia Genetics GmbH – UPC_CoA_19/2026

Under Rule 211.4 of the UPC Rules of Procedure (RoP), urgency is a threshold requirement for an application for provisional measures. The Court of Appeal has dismissed an appeal by Guardant Health against the Paris Local Division's rejection of its application for provisional measures against Sophia Genetics, holding that Guardant had not acted with the required urgency and that this failure alone was fatal, making an assessment of infringement and necessity irrelevant.

Guardant is proprietor of a European patent with unitary effect (the Patent) covering a method for detecting colorectal, ovarian, lung or pancreatic cancer using deep sequencing of circulating cell-free DNA. On 27 May 2025, it sent Sophia Genetics a warning letter concerning separate UK patents, relying on Sophia's User Manual, and began UK litigation on 14 July 2025. On 29 August 2025, it applied to the Paris Local Division for provisional measures against four Sophia group companies based on the Patent and other patents. The Local Division rejected the application, finding the Patent was more likely than not invalid for added matter, and ordered Guardant to pay €400,000 in interim costs.

The Court of Appeal found that, while a patent holder need not assert all infringed patents in a single application, and may file separate applications weeks apart, it should not turn a blind eye once a document shows infringement of one patent that may also evidence infringement of others. Given that Guardant's own warning letter relied on a User Manual disclosing the Patent's features, it knew or should have known of the alleged infringement well before its letter; the court found that a diligent holder could have established infringement by all four defendants within two weeks, meaning Guardant should have had the requisite knowledge by 15 May 2025. Its UPC application, filed only on 29 August 2025, involved an unexplained delay of over three months, defeating the urgency requirement under Rule 211.4 RoP.

The decision confirms urgency is assessed per patent and defendant from the earliest point that infringement was reasonably identifiable.

Read more

Milan Local Division refuses Ericsson's late-stage PI against ASUSTeK

Telefonaktiebolaget LM Ericsson v ASUSTeK Computer Inc. and Arvato Netherlands B.V. - UPC_CFI_1129/2026

The Milan Local Division has dismissed Ericsson's application for provisional measures against ASUSTeK, brought partway through already well-advanced infringement proceedings relating to a HEVC/H.265 standard-essential patent. 

The court confirmed that a request for provisional measures can be filed at any stage of the main proceedings but, where the merits case is already well advanced, the bar for urgency and balance of interests becomes significantly stricter. The applicant must show a real change in circumstances that makes it untenable for the applicant to wait for the final decision ("the applicant must highlight any new or escalating risk that has arisen during the ongoing proceedings and explain why these new facts alter the existing situation to such an extent that a provisional measure is necessary and that it would not be justified to wait for a decision on the merits"). Ericsson could not clear that bar, and the application was dismissed (together with its fallback request for security for damages).

Ericsson had brought infringement proceedings against ASUSTeK and Arvato in June 2024 in respect of EP 2727342 (relating to HEVC/H.265 video coding technology) (the Patent), alleging that ASUSTeK's laptops, desktops and Chromebooks implementing the standard infringed the Patent. With the merits trial not listed until 24-25 September 2026 (over two years after the claim was filed), Ericsson applied on 1 April 2026 for a preliminary injunction, pointing to three supposedly new developments: the delay in the main proceedings, two recent German infringement judgments against ASUSTeK, and the launch of new ASUSTeK products.

The court found that delay in the main proceedings was not a "new circumstance". The case had genuine complexity and the trial date did not amount to a new, different and unequivocal deterioration in Ericsson's position. Further, the German judgments had no relevance to the case as conduct in unrelated cases could not be imported into the Ericsson dispute absent evidence of systematic evasive conduct. Meanwhile, the new product launches were simply business as usual activities.

The court also refused Ericsson's fallback request that ASUSTeK be ordered to put up a bank guarantee to protect any future damages. The court doubted whether such an order was even available, and in any event found no evidence of systematic evasive conduct or deteriorating solvency to justify it.

Court of Appeal guidance on SMEs and security for costs

La Siddhi Consultancy Limited v Athena Pharmaceutiques SAS, Substipharm - UPC_CoA_48/2026

The Court of Appeal has issued a decision which makes clear that a party's status as a small or medium-sized enterprise does not, by itself, exempt it from an obligation to provide security for costs.

At a defendant's request, the court may order a claimant to provide adequate security for legal costs and other expenses. In this case, La Siddhi was the claimant in revocation proceedings before the Milan Central Division. Following an application by the defendant, Athena, the court required La Siddhi to provide security for costs of €75,000 for Athena's costs on the basis that Athena had sufficiently substantiated, using publicly available financial information, a legitimate and real concern that a future costs order against La Siddhi might not be recoverable. La Siddhi failed to rebut that evidence with more detailed or up-to-date financial information.

One of the issues before the Court of Appeal was the impact of SME status. The Court of Appeal confirmed that a party's SME status does not, by itself, exempt that party from the obligation to provide security for costs under Rule 158 RoP. The court contrasted this with (i) Rule 370.8 RoP, which allows a reduction in court fees for SMEs, and (ii) Art. 2(2) of the Decision of the Administrative Committee of 24 April 2023 which provides that a party can request a lower ceiling on recoverable costs where an award at the full ceiling would threaten its economic existence. However, the rules on security (Article. 69(4) UPCA / Rule 158 RoP) contain no equivalent exception or restriction for SMEs and draw no distinction between types of parties at all.

On the level of security to be provided, the court confirmed that security should be set starting from the applicable recoverable-costs ceiling (here €112,000) and weighted against the case's circumstances, with SME status capable of being taken into account as one such circumstance. Setting security at roughly 60% of the ceiling (€75,000) was reasonable and no further reduction was needed.

Court of Appeal confirms Central Division jurisdiction over action against defendants domiciled both within and outside the UPC

Valeo Systemes D'Essuyage v Robert Bosch France SAS, Robert Bosch GmbH, Robert Bosch S.A, Robert Bosch Produktie S.A – UPC_CoA_4/2026 and UPC_CoA_13/2026

This appeal concerned, inter alia, the jurisdiction of the UPC's Central Division to hear infringement actions. Valeo sued six Bosch entities for infringement of EP 2 671 766 before the Paris Central Division. Four defendants were domiciled in UPC states; two, Robert Bosch Doo Belgrade (Serbia) and Bosch Automotive Products (Changsha) Co., Ltd. (China), were not.

Following a preliminary objection filed by Bosch concerning competence of the Paris Central Division to hear the action, the court held it lacked jurisdiction, finding that Article 33(1), third subparagraph, UPCA – providing a Central Division with competence to hear infringement actions for defendants domiciled outside the UPC - applies only where all defendants are domiciled outside UPC territory. The whole action was referred to the Düsseldorf Local Division.

The Court of Appeal disagreed and restored the action to the Central Division (Paris). It held that Article 33(1), third subparagraph, is not an exception to local/regional division jurisdiction but an autonomous, alternative basis of jurisdiction, applying whenever at least one defendant is domiciled outside UPC territory. The anchor-defendant mechanism under Article 33(1)(b) extends to such defendants, avoiding fragmented proceedings and inconsistent decisions.

Why this matters: this is the Court of Appeal's first comprehensive interpretation of Article 33(1). It confirms the Central Division can act as a consolidating forum for multi-defendant actions spanning UPC and non-UPC domiciled entities. Claimants suing multinational groups now have a clearer route to keep the whole action together before the Central Division, likely increasing the flow of cases to the Paris and Milan Central Divisions.

Court of Appeal confirms German injunction, refuses UK relief

Fujifilm Corporation v Kodak GmbH, Kodak Graphic Communications GmbH, Kodak Holding GmbH – UPC_CoA_473 & UPC_CoA_873/2025 & UPC_CoA_474/2025 & UPC_CoA_881/2025

In June 2026, we reported on the Court of Appeal's decision in this case, in which it confirmed the court's jurisdiction could extend to the UK, articulating rules to govern how the UPC should approach non-UPC designations.

Subsequently, the Court of Appeal has overturned the Mannheim Local Division's finding that the German designation of Fujifilm's patent was invalid. Finding the patent valid and infringed, the court granted Fujifilm an injunction covering Germany. The injunction prohibits Kodak from making, offering, marketing, using or storing the infringing lithographic printing plate precursors, and carries a penalty for non-compliance of up to €50 per square metre of plate or €10,000 per day, with the choice between the two at Fujifilm's option.

However, the court dismissed Fujifilm's appeal on the UK designation and rejected its UK infringement claims entirely. The injunction therefore applies to Germany only, and the potential for "long-arm" relief did not ultimately arise in this case.

Hamburg Local Division draws the line on long-arm jurisdiction over non-UPC territories

Nixu FL IP Protection LLC v Infoblox INC. o.a. – UPC_CFI_360/2026 & UPC_CFI_360/2026

This case highlights two important aspects of UPC practice: (1) the limits of the UPC's long-arm jurisdiction over non-UPC defendants and territories, and (2) confirmation that a claimant's domicile outside the UPC and EU does not, by itself, justify an order for security for costs.

Jurisdiction

Nixu, a US company, brought UPC infringement proceedings against Infoblox Inc. (US), Infoblox Germany (DE), and Nomios Germany (DE) for infringement of European patent EP2005696 in Germany, France, Finland, and the UK. Jurisdiction over the German defendants was not in dispute; however, Infoblox Inc challenged the court's international jurisdiction over it.

Nixu relied primarily on Article 8(1) of the Recast Brussels Regulation, arguing the German defendants could serve as "anchor defendants" for Infoblox Inc since all three were alleged to infringe the same patent using the same software, thereby forming a close connection between the defendants.

The court held that a defendant sued on the basis of its domicile can anchor jurisdiction for the entire UPC territory, extending to non-EU defendants by Article 71b(2). As the German defendants were incorporated in Germany and shown to be active in, or supportive of, distribution within the UPC territory, they could anchor jurisdiction over Infoblox in Germany, France, and Finland.

The position was different for the UK. Whilst jurisdiction over UPC-domiciled defendants can in principle extend to non-UPC and non-EU acts, the close connection required by Article 8(1) must be pleaded on a country-specific basis. The UPC's universal jurisdiction over the German defendants was not sufficient and it was not enough that all three defendants might individually infringe different national parts of the same patent without acting jointly in the UK. As Nixu had not pleaded facts specifically showing joint UK infringement by Infoblox and at least one of the German anchor defendants, the UK claim against Infoblox was dismissed as inadmissible.

This decision sits alongside the Hamburg Local Division's order in Dyson v Dreame, the Paris Local Division's approach in BMS v BYD, and the Court of Appeal's framework in Adobe, OpenAI & Others v KeeeX, and Kodak v Fujifilm.

Security for costs

The Infoblox defendants applied for an order requiring Nixu to provide security for their legal costs and expenses. Nixu had been incorporated in Texas in March 2025, acquiring the patent from FusionLayer Oy weeks later, and issuing proceedings shortly afterwards. The defendants argued that Nixu was accordingly a newly established litigation vehicle with no actual assets of its own. A US securities filing showed that Nixu's patents, licences, income, and royalties had all been pledged to its funder under a Patent Security Agreement, and part of the purchase price for the portfolio remained unpaid. The defendants further argued that enforcing a UPC costs order in Florida, where Nixu is domiciled, was uncertain.

The Hamburg Local Division rejected the domicile argument. It held that a claimant's domicile in the US did not, in itself, justify security for costs, finding no reason to doubt that US courts (including in Florida) would recognise and enforce European court judgments in practice, and that Florida's statutory recognition criteria reflect standard international norms also found in Europe.

However, Nixu's financial position did justify security. Given that it was a newly formed, single-purpose litigation entity, and all of its patents, licences, and future income had been pledged to its funder, the court found Nixu was "basically assetless in an economical sense" and dependent on its funder's discretionary willingness to continue funding, which the defendants could not rely on to enforce a costs award.

The court ordered Nixu to provide security of €200,000.

Court of Appeal limits the scope of production of evidence

Polytechnik Luft- und Feuerungstechnik GmbH v Dall Energy ApS – UPC_CoA_57/2026

The Court of Appeal has narrowed the scope of an evidence production order issued by the Copenhagen Local Division, emphasising the need for disclosure measures to be strictly necessary and proportionate.

The patent in suit concerns a method for producing clean hot gas from solid fuel. At first instance, the court ordered the defendant, Polytechnik, to produce construction drawings relating to the allegedly infringing furnace at the site in issue, as well as corresponding drawings from other sites, together with manuals and other materials provided to customers. The documents were to be disclosed within two weeks, subject to a penalty of up to €1,000 per day of delay.

Polytechnik appealed on several grounds, including that the order was overly broad and insufficiently targeted, lacked adequate justification as to the relevance of the requested documents, amounted to an impermissible fishing expedition, was incompatible with the principle against self-incrimination, and did not provide sufficient confidentiality safeguards.

In assessing these arguments, the Court of Appeal applied the framework for evidence production under Article 59 UPCA and Rule 190 RoP. It reiterated the importance of these provisions in patent disputes, where relevant technical and commercial information is often held exclusively by the opposing party or third parties, creating evidential asymmetries that disclosure measures are intended to address.

The court largely upheld the order but found that the Local Division had exceeded the limits of its discretion by ordering disclosure beyond what was necessary and proportionate to assess the disputed features. It therefore limited disclosure of construction drawings to the allegedly infringing site and restricted operation and maintenance manuals to those relevant to the contested features. The category of "other materials" was rejected as insufficiently defined and unsupported.

Court of Appeal clarifies requirements for seeking review of an unauthorised opt-out

Silimed Indústria de Implantes Ltda v Polytech Health & Aesthetics GmbH – UPC_CoA_066/2026

This case concerns European patent EP 2 581 193 (the Patent), granted to Polytech on 25 November 2015, then transferred and re-registered to Silimed following entitlement proceedings by order of the Oberlandesgericht Frankfurt am Main of 28 November 2024 (the order became final on 5 January 2026). Polytech had opted the Patent out of the UPC's exclusive competence of the Unified Patent Court on 30 March 2023, i.e., before the Patent was re-registered to Silimed.

In January 2026, a company belonging to the same group of companies as Polytech filed an action for revocation of the German part of the Patent before the Bundespatentgericht in Munich, Germany.

Silimed sought to have Polytech's opt-out removed, arguing that, following the transfer of the Patent, Polytech was never entitled to the Patent or the invention to which the Patent relates, and therefore its opt-out was an unauthorised application. The registrar rejected the application for removal of Polytech's opt-out, so Silimed applied for a review of the registrar's decision.

The Court of Appeal rejected the review of the registrar's decision. Silimed had relied on the 2024 order of the Oberlandesgericht Frankfurt am Main, which had ordered Polytech to transfer all national parts of the Patent to Silimed, to argue that Polytech never had a right to the Patent. However, this ruling did not have retroactive effect. Therefore, when Polytech filed its application to opt the Patent out, it qualified to be registered as proprietor in the national register and held the authority to do so.

The decision confirms that the Court of Appeal will not easily overturn a UPC opt-out made by an appropriately registered applicant, even where there are ongoing disputes concerning proprietorship.

Access to pleadings: UPC Court of Appeal confirms law firms as "members of the public"

Huawei Technologies Co. Ltd. (MediaTek Inc., and MediaTek Deutschland GmbH) v Quinn Emanuel Urquhart & Sullivan, LLP – UPC_CoA_52/2026 & UPC_CoA_53/2026

The Court of Appeal has issued two orders dismissing appeals brought by Huawei, clarifying that law firms are considered "members of the public" under Rule 262.1(b) RoP. The court reaffirmed that professional development and gaining a better understanding of how the UPC operates constitute "legitimate interests" sufficient to support a reasoned request for access to pleadings. The ruling has practical significance for patent practitioners wishing to analyse UPC case strategy and court practice.

The court’s decision also resolved certain procedural ambiguities arising from the "hybrid nature" of access requests. It clarified that decisions made by a Judge Rapporteur under Rule 262.1(b) are subject to review by the panel under Rule 333 before they can be appealed to the Court of Appeal under Rules 220.2 and 220.3. This framework ensures that the full panel reviews the matter first to avoid unnecessary appeals.

The court confirmed that, once proceedings have concluded, the balancing of interests generally favours granting access, as the need to protect the integrity of the proceedings is diminished. Consequently, the court upheld the grant of access subject to redaction of confidential information, but refused to impose additional confidentiality undertakings on the requesting law firm.

Court of Appeal clarifies approach to calculating court fees in appeals

Qualcomm Incorporated, Qualcomm Technologies, Inc., Qualcomm Germany GmbH v Network Systems Technologies LLC – UPC_CoA_68/2026

In this case, NST had brought infringement proceedings in the Munich Local Division against Qualcomm and two Samsung companies (the action against Samsung was later withdrawn); Qualcomm counterclaimed for revocation. NST was successful on both the infringement and revocation counterclaim. The value of the infringement dispute was set at €3,000,000 and the revocation counterclaim at €4,500,000.

The matter before the Court of Appeal concerned the court fees for the appeal. In relation to Qualcomm's appeal, the court confirmed that the court fee for an appeal under Rule 220.1(a) RoP against a counterclaim for revocation is the fee payable for filing a counterclaim for revocation at first instance at the time the appeal is filed, increased by 10%. Meanwhile, NST had argued that the value of the actions should be set lower as Samsung was no longer a respondent on the appeal. However, the court said it could not revise the value of the claim set at first instance – any objections should be raised as part of the grounds of appeal. Further, the value of the action had been determined by the court at first instance at a time when the action against Samsung had already been withdrawn.

How Mishcon de Reya can help

Mishcon de Reya advises clients on all aspects of UPC litigation and patent strategy. If any of the developments covered in this update raise questions relevant to your portfolio or pending proceedings, please contact a member of our patents team.

• The High Court has dismissed all of Shein's copyright infringement claims against Temu, holding that Temu did not commit any acts of copyright infringement (nor authorise any acts) in relation to product listing photographs uploaded to the Temu UK website by third party merchants.
• Even if the court had found Temu to have committed acts of infringement, it would have been entitled to rely on the hosting defence under Regulation 19 of the E-Commerce Regulations 2002.
• The decision demonstrates the challenges in establishing platform liability, with the judge finding Temu's role in relation to the use of the disputed photographs to be "of a mere technical, automatic and passive nature".
• The case also emphasises the risks of large-scale intellectual property enforcement without a verified chain of title, and highlights that specific, precise knowledge of infringing content is an important element to defeat the hosting defence.

Introduction

Landmark rulings from the CJEU in Christian Louboutin v Amazon to the English Court of Appeal in Montres Breguet (Swatch) v Samsung have demonstrated that rightsholders can enforce against online intermediary platforms on the basis that, in certain circumstances, the platform operators are responsible for the acts of third parties occurring on the platform.

However, the recent High Court's decision in Roadget Business Pte Ltd and Shein Distribution UK Ltd v Whaleco UK Limited [2026] EWHC 2165 (Ch) (Shein v Temu), highlights the evidential hurdles that rightsholders face when seeking to enforce their IP against platforms.

Background

Shein and Temu compete in the online fast-fashion sector. The case concerned products supplied to Shein under its ODM (original design manufacturer) model, under which suppliers create initial product designs for Shein. All product listings on the Shein website include photographs of the relevant product, taken either by a Shein employee, an agency or the supplier of the product. Due to the way in which Shein's procurement processes work, its suppliers often have unsold stock which they tend to clear through other sites, including Temu. Until Shein intervened to put a stop to the practice, suppliers listing these products on the Temu website used the same photographs that had been used on the Shein website.

Shein alleged that Temu had infringed its copyright under the Copyright, Designs and Patents Act 1988 (CDPA) by using the relevant product photographs on Temu's UK website. Temu denied infringement and also brought a counterclaim alleging that Shein had violated competition law, and for damages as a result of a significant number of product listings that were taken down from the Temu site pursuant to orders made at an earlier stage of the case. The competition aspect of the dispute was transferred to the Competition Appeal Tribunal and is scheduled to be heard in 2027.

In her judgment of 13 August 2026, Mrs Justice Bacon dismissed all of Shein's copyright claims and upheld Temu's counterclaim for damages.

Ownership and chain of title

Shein’s claim initially targeted 2,559 product listings across employee, supplier, and agency photographs. To manage the litigation, the court directed a trial by sample. However, due to defects in the documentary chain of title for third-party photographs, by the time of trial, only five samples remained: four employee photographs and one single supplier photograph (the Strawberry Nightdress). This became the focal point of a detailed examination of supply-chain dynamics, Chinese contract law, and copyright assignment.

The Strawberry Nightdress had been supplied to Shein by a merchant that had commissioned photographs from a freelance photographer. Because the photographer retained first ownership and had no knowledge the photos were destined specifically for Shein, Shein was left with no copyright title or enforceable rights of action under its initial supplier agreement, other than a non-exclusive licence to use the photographs.

Shein’s claim in relation to the Strawberry Nightdress photograph ultimately failed on consent. After Shein delisted the dress due to slow sales, the merchant sought to clear surplus "dead stock" by arranging to sell the items on Temu, amounting to consent to the photos being uploaded.

No infringement through authorisation of reproduction or communication to the public

Shein’s claims on the remaining four employee works failed on all of its asserted grounds under the CDPA:

• Shein ultimately did not pursue its claim against Temu for reproduction of the photographs on its website, because such acts of infringement took place outside the jurisdiction, given that Temu's servers are located outside the UK.
• Shein argued that Temu had authorised its users to reproduce the photographs by viewing them on their web browser, which led to copies being made in the RAM of the device used to view product listings. However, Temu was able to rely upon the temporary copies defence in the CDPA, meeting all of the criteria for this defence to apply. In particular, the court concluded that temporary copying inherent in users viewing photos on the Temu website had no independent economic significance (which had to be assessed by reference to the user of the site). In any event, merely providing a retail platform which enabled merchants to upload copyright images and for users to view them, did not constitute 'authorisation' of any infringement on this ground. 
• The claim of infringement on the ground that the works had been communicated to the public was also dismissed, as there was no deliberate intervention by Temu with the aim of providing the public with access to the protected works. For Shein to succeed in this claim, Temu was required to have knowledge that the relevant content was being made available unlawfully. However, whilst it was no doubt generally aware that some photos uploaded by merchants may infringe copyright, its platform did not incorporate tools specifically intended to facilitate uploading of infringing images, and Temu did not encourage this. In fact, it contractually prohibited merchants from doing so and maintained an IP complaints process which enabled notification and takedown to take place.
• For similar reasons, the court dismissed Shein's secondary infringement claim which was based on using the photos to advertise products on the Temu website. Knowledge in the abstract that some merchants might post infringing content was not enough. Temu had no reason to believe the relevant listings were infringing before notification, and it removed them expeditiously upon receiving court orders.

Hosting defence

Whilst these findings meant it was not necessary to consider the availability of the hosting defence, the judge addressed it for completeness, thus providing useful guidance on how the defence may be interpreted in future cases.

Regulation 19 of the E-Commerce Regulations 2002 provides that a platform storing information for a recipient of their service is not liable in damages for storing infringing content, provided its activities are of a "mere technical, automatic and passive nature", it lacked actual knowledge of unlawful content, it acted expeditiously to remove it once notified, and did not control the person who supplied it.

The English courts have previously clarified when the hosting defence will not be available, by identifying circumstances in which a platform's activities are treated as active rather than neutral. For example, in Montres Breguet v Samsung, the Court of Appeal held that Samsung's acts including pre-listing IP infringement review, and active encouragement of app developers, took it outside the hosting defence as these acts were "active, and gave it knowledge of and control over that content".

Shein ran similar arguments against Temu, pointing to its control over pricing and product listings, management of promotions, image-editing tools, and the offer of delivery, customer service and warehousing facilities, as evidence it was a "hybrid operation" rather than a passive marketplace. However, the judge rejected these arguments, holding that the relevant question was not an assessment of a platform's character in the abstract, but whether it played an active role in relation to the specific content in dispute.

Here, the photographs were uploaded via Temu's standard template, and were subject only to an automatic technical check, with optional editing tools. Temu's conduct was therefore "of a mere technical, automatic and passive nature".

Shein liable for wrongful takedowns

Temu also advanced a counterclaim seeking damages under the cross-undertaking in damages that Shein had given when it obtained orders earlier in the dispute requiring Temu to take down certain product listings. Temu argued that Shein's notifications wrongly caused the removal of several product listings.

The judge agreed that removing the notified images inevitably meant removing the listings (since Temu's platform does not allow a listing without a photograph) and that this was not only reasonable but practically inevitable. It was also unrealistic to suggest that Temu could have mitigated any loss by alerting merchants to obtain replacement photographs, within the two-day deadline for removal of notified allegedly infringing photographs. As a result, Temu's counterclaim succeeded, with the amount of damages to be determined.

Takeaways for rightsholders and platforms

Shein v Temu provides helpful guidance on when a platform may be liable, building on the guidance in Montres Breguet, offering practical examples of platform activity that may meet or not meet the criteria for the 'safe-harbour' hosting defence.

Due to the nature of the dispute, Shein were only able to rely on copyright infringement allegations and the outcome may have differed if other IP rights were available to them. It is worth rightsholders considering their entire portfolio and how best to use it to take action. In addition, rightsholders wishing to take action against a platform will likely require evidence of the platform's active involvement in the infringing listings or a failure to act once put on notice.

Finally, there is a clear message for rightsholders regarding chain of title. Those running large-scale takedown campaigns need precise evidence (including proof of their own ownership) to fix a platform with the requisite knowledge. A scattergun approach is unlikely to succeed, and may also expose a rightsholder to a successful damages action for wrongful takedowns.

How Mishcon de Reya can help

Our Intellectual Property Enforcement team regularly advises rightsholders on strategic large-scale online enforcement campaigns. For further information, please contact a member of the Intellectual Property Enforcement team.

Related coverage

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• In CIT Group Finance (Ireland) v SpiceJet Ltd [2026] EWHC 1277 (Comm) the Commercial Court has provided helpful guidance on the operation of the Braganza duty, an implied duty which can require parties to exercise contractual discretions rationally, in good faith and in accordance with their contractual purpose.
• In holding that the duty should not be implied into agreements entered into in an attempt to resolve earlier payment issues, the Court has upheld the principle of contractual certainty, and emphasised that the contractual discretions will only be subject to implied terms in narrow circumstances.

Background

The claim concerned lease agreements between SpiceJet and CIT in relation to two Boeing 737-8MAX aircraft. Following SpiceJet's failure to make rental payments in accordance with the leases, the parties agreed Early Termination Agreements (ETAs) which provided for less onerous redelivery conditions than those contained in the leases, but required SpiceJet to pay all sums owed, together with associated interest, up to and including the Early Termination Date in the ETAs.

In addition, clause 13.14 of the ETAs provided that:

Any failure to comply with the terms of this Agreement shall at [CIT's] discretion render this Agreement null and void and [CIT] may revert to the terms of the Lease in place prior to the date of this Agreement…

SpiceJet redelivered the aircraft in accordance with the ETAs but nine months later CIT contended that rent remained due and owing. It therefore purported to exercise its right under clause 13.14 to treat the ETAs as null and void and revert to the terms of the leases. It then issued proceedings, claiming unpaid rent, together with additional expenses.

CIT subsequently applied for summary judgment. One key issue for the court concerned the operation of the so-called "Braganza duty".

When will a Braganza duty be implied?

The Braganza duty takes its name from the Supreme Court's decision in Braganza v BP Shipping Ltd (2015), which held that, where a contract confers a discretion upon one party, the law may imply an obligation that the discretion is exercised rationally and in good faith. In this case, SpiceJet contended that clause 13.14 was subject to such an implied term, and that by exercising the clause as it did, CIT had failed to comply with the duty.

Subsequent authorities have indicated that, where a contract confers a bare right to terminate, that right is not subject to the Braganza duty and the party entitled to exercise it may do so for any reason. However, as the Commercial Court observed, no such short cut was available here as clause 13.14 could not be characterised as a straightforward termination right. The effect of the clause was not to bring the parties' contractual relationship to an end entirely. Instead, it operated to revert the parties to the pre-existing terms of the leases.

As a result, the question of whether a Braganza duty should or should not be implied had to be "the result of a process of construction which takes account of the characteristics of the parties, the terms of the contract as a whole and the contractual context."

In this case the Court concluded that the contractual purpose of the ETAs was to incentivise SpiceJet to redeliver the aircraft and pay the monies owed, in exchange for CIT's restraint in not otherwise enforcing its legal entitlements. For so long as SpiceJet remained in breach of its obligations under the ETAs, CIT was entitled to revert to the leases. It could decide for itself how patient it was willing to be, and owed no duty to SpiceJet in that regard.  

The fact that clause 13.14 used the words "at the Lessor's discretion" did not necessarily import the Braganza duty. As the Court emphasised, determining whether a Braganza duty is owed does not turn on whether the label "discretion" is used, but rather on the usual process of construction.

Moreover, while a Braganza duty may be implied where a contractual discretion has a clear conflict of interest, in this case there was no relevant conflict or imbalance of power - the exercise of clause 13.14 would always operate to SpiceJet's disadvantage and so there was no need to weigh SpiceJet's interest against CIT's.

In those circumstances, the Commercial Court was not persuaded that the imposition of a Braganza duty was warranted. Having also rejected SpiceJet's separate arguments on estoppel and waiver, summary judgment was granted in favour of CIT.

Takeaway

There is no general duty of good faith under English contract law. Absent a specific obligation to do so, parties are usually entitled to enforce their contractual rights without regard to the counterparty's interests. However, in recent years the English courts have recognised certain exceptions to that principle, including the Braganza duty. Nevertheless, as this decision demonstrates, the circumstances in which it will arise will be narrowly construed, and mere use of the label "discretion" will not be determinative. For contracting parties, seeking certainty that their agreements can be operated as intended, it is a welcome result.

In a thought-provoking discussion, Tobias explored the growing fragmentation of the international order, drawing parallels with the years preceding the Second World War and considering how authoritarianism, Western isolationism and new technologies are reshaping global conflict. He also reflected on the importance of strong leadership, international alliances and defending the rules-based international system.

The session gave us the chance to hear an informed and timely perspective on global security, Britain’s role in the world and the steps needed to prevent a more divided and dangerous future.

• Since 2 August 2026, the EU AI Act has introduced new requirements to make the use of AI more transparent, with advertising a key area directly affected.
• This article explores what this means in practice for brands, marketing teams, agencies and their in-house legal advisers: when do these rules apply to your advertising, what constitutes a 'deepfake' under the rules, what do you actually need to do if the rules do apply, how do you label ads, and does the answer change depending on the type of media?
• With the industry currently grappling with these questions and more, this article aims to bring clarity to what is a significant shift for both the industry and for compliance.
• Getting it wrong carries real financial risk, so AI labelling for in-scope ads needs to become a standard part of the creative process from the outset, in the same way that other on-screen disclosures, such as comparative advertising supers or safer gambling messaging, have already become part of everyday advertising.

Guidance and Codes of Practice

Throughout this article, we refer to the European Commission's Guidelines on the implementation of the transparency obligations (Guidelines) as well as the Code of Practice which supports compliance with the EU AI Act's transparency requirements.

When are the EU's transparency rules applicable?

There are two practical questions to work through: first, does this apply to you at all given where your ad is shown, and second, whose responsibility is it to comply. We take each in turn below.

How does the obligation play out in practice, by media and format?

As discussed above, whether an ad is likely to reach an EU audience is what determines whether the labelling obligation bites. In practice, this plays out differently depending on the media used. Broadcast media, such as TV and radio, can often genuinely be confined to a single market, whereas online media, such as websites, social media and online video, is much harder to keep within one country once it's live.

Take an AI-manipulated advert featuring a synthetic spokesperson that runs on UK television, YouTube, social media and the brand's website. The television broadcast might realistically stay within the UK, but the same ad on YouTube, social media or the brand's website is a different story. EU users can access that content directly, so it becomes far harder to argue reaching an EU audience wasn't foreseeable.

Social media deserves a specific mention here, given how much advertising now runs through it. Many platforms, including Instagram and TikTok, already offer their own built-in AI labelling tools, whether applied automatically or added voluntarily by the person posting. The difficulty is that these platform labels won't necessarily satisfy the EU AI Act labelling obligation on their own: for example, if the platform's label isn't itself clear and prominent to the viewer, for example because it's only embedded as invisible metadata, it won't count as compliant disclosure. Even where it is visible, the advertiser and agency remain responsible for checking that it actually meets the requirements. The simplest way around this is not to rely on the platform at all; if labelling is built into the ad itself as part of the production process, as suggested above, it travels with the content regardless of which platform it ends up on.

The upshot: a broadcast-only placement may be the one scenario where the geography point genuinely works in your favour, but it rarely helps once any part of the same campaign goes online, which is true of almost every campaign today.

What type of AI generated content triggers the labelling requirement?

The EU AI Act uses the word "deepfake" to describe what needs labelling, but this extends to AI-generated use that goes beyond the fake celebrity videos most people picture when they hear that word. Under the EU AI Act, a deepfake is any AI-generated or manipulated image, audio or video content that resembles an existing person, object, place, entity or event and which would falsely appear to a person to be authentic or truthful.

Four things have to be true together: the content (i) resembles something (ii) real, that (iii) is a person, object, place, entity or event, and (iv) the result would falsely seem authentic or truthful to the viewer (i.e. it is sufficiently realistic that an ordinary viewer could take it to be genuine, regardless of whether any deception was intended). Importantly, the person, object, place, entity or event does not have to correspond to something that actually exists. It is sufficient that it could plausibly exist, or could plausibly have existed, in reality. This makes the concept of a deepfake extremely broad, extending well beyond digital replicas of real individuals to a wide range of realistic but entirely fictional content, which can itself be a source of deception, manipulation and disinformation.

The Guidelines give some useful examples that are directly relevant to the advertising industry and show when the rules apply and don’t apply in practice:

The dividing line the Guidelines draw is whether the AI use affects the audience's perception of the truth or authenticity of what's shown.

It's worth noting that this deepfake test is specific to image, audio and video content; a separate and narrower labelling rule applies to AI-generated text. Text labelling under Article 50(4) only applies where the text informs the public on matters of public interest, such as politics, public health, consumer safety or environmental claims, not routine advertising or product description copy. In practice, this means most AI-written ad copy, headlines and search ads, including in formats like search and AdWords-style campaigns, should sit outside this particular obligation, unless the copy itself makes the kind of substantive public-interest claim described above, for example a specific health or sustainability claim. However, it is worth noting that there is a separate obligation on the provider of an AI system to mark AI-generated content (including text) as such, using methods that are detectable by machine-readable means (such as watermarking). For example, Anthropic has published details of how it is now watermarking content produced using Claude.

In practice, if you've used AI to make the colours in your ad more vivid, sharpen an image, or clean up a background, you're likely fine. However, if you've used AI to create people, characters, products, or audiences that appear in the ad as if they were real, you are very likely to need to apply a label.

The lighter regime for evidently artistic, creative, satirical, fictional or analogous work

Where a deepfake forms part of an evidently (to the people exposed to it) artistic, creative, satirical, fictional or analogous work, the transparency obligation isn't completely switched off, but it is reduced. Disclosure is still required, but it is limited to the disclosure of the deepfake "in an appropriate manner that does not hamper the display or enjoyment of the work".

The Guidelines are clear that this is a narrow exception. If an ad is obviously just informative or commercial in nature i.e., its purpose is clearly to inform or sell, not to entertain or make an artistic point, it will not qualify for this lighter regime, even if it's creatively made.

The Guidelines give some useful examples that show when the lighter regime for evidently artistic, creative or satirical works is likely to apply in practice:

In practice, the safe assumption for most commercial advertising will be to treat the full labelling obligation as the default. The lighter regime should only be relied on where the content is unambiguously and evidently artistic, fictional or satirical.

The AI icons – what they are and when to use them

The EU Commission has published a set of example icons, contained in the Code of Practice, that deployers can use to label AI-generated or manipulated deepfake content. They come in black, white, and 50%-transparent black/white variants, in SVG and PNG formats.

Their use is optional, with brands having the opportunity to design an equivalent label instead, provided it meets the same design and placement standards. There are three icon variants, each for a different scenario.

Below is a representation of the EU Commission's icons, and how they might apply in the context of advertising.

How should the AI label be displayed?

For media and advertising businesses, the placement specifications translate into the below checklist based on the guidance in the Code of Practice:

• Show the icon or label at the very start of the video or image and, for longer or live content, at regular intervals and after every ad break (not just once at the outset).
• Embed it directly in the content itself so it survives reshares, screenshots, downloads and clipped fragments – rather than relying solely on a platform overlay that can be stripped out.
• Place it somewhere with no competing overlays (e.g., top corner of frame), keep it a clearly visible size, and make sure it stays legible against the background.
• Keep audible disclosures to a supporting role for visual deepfakes – never rely on sound alone, and always pair it with a visual disclosure (e.g. where audio is part of the user experience, or for accessibility purposes).
• When a screen is available, add a visual disclosure alongside an audible disclaimer.
• For audio-only ads (radio, podcasts, smart speakers), use a short, plain-language spoken disclaimer at the start, repeated after interruptions such as ad breaks.

The icons should be presented in a clearly visible size, and any accompanying label should use plain language and avoid jargon.

What steps should brands and agencies take now?

• Map which current and pipeline campaigns use AI-generated or manipulated imagery, audio or video, and screen each against the deepfake test.
• Separate genuinely cosmetic AI editing (which needs no AI label) from AI use that changes what the audience sees as real (which does need an AI label).
• Build the AI question into the creative brief from the outset, rather than raising it once creative is signed off: does this concept use AI, could it use AI, and if so, would a label change the message or the way it needs to be shot or produced.
• If you're an agency, treat any proposed use of AI as an automatic trigger to consider the labelling requirement, in the same way a brief would trigger a rights or clearance check.
• If you're a brand working with an agency, make "has AI been used, and if so how" a standard question on every campaign update or creative review, not just a one-off check at the start.
• Build the EU icons, or an equivalent label of your own design, into the advert at the placement points set out above.

It is also worth bearing in mind that AI labelling may not be everything you need to do to protect a brand from liability more broadly. Adding an AI label does not clear a deepfake of separate legal duties, which still apply in full. For example, if the deepfake uses someone else's trade mark, copyright, or other protected material, intellectual property law will apply, and an AI label has no effect on whether that material is protected. Separately, where a deepfake shows a real person, rights in their image or voice may still apply too (which may lead to data protection concerns, as well as arguments of passing off). Labelling does not make otherwise unlawful content lawful.

Why this is important

Penalties for non-compliance with Article 50 can reach up to €15 million or 3% of global annual turnover for both providers and deployers, whichever is higher, so compliance should be a serious priority for advertisers and their agencies.

There is also a reputational dimension. The rules are intended to prevent consumers being deceived by some kinds of AI-generated content and to protect public trust. Advertising depends on that same trust, so brands that are perceived to be misleading their customers with undisclosed AI deepfakes risk more than a fine – they risk jeopardising the trust their advertising relies on.

What is the position in the UK?

Many UK businesses will be in scope of the EU AI Act's reach, for the reasons set out above. In the UK, there is no current regulation relating to labelling of AI-generated content. Of course, general rules around misleading advertising still apply under the CAP Codes, as do existing laws relating to IP and data protection. However, following its consultation on the interplay between copyright and AI, the Government has indicated that it will be issuing a standalone consultation on labelling of digital replicas (deepfakes). This was expected to be published in summer 2026, so developments should be closely monitored.

How Mishcon de Reya can help

If you would like advice on ensuring your advertising complies with these new transparency requirements, please get in touch with our advertising experts here at Mishcon de Reya.

A recent Employment Tribunal case highlights the latter issue. Taken alongside HMRC’s increased scrutiny of employer-funded visa expenses, it underlines the need for employers to consider immigration, tax and employment law together.

Key points for employers

• Employer-funded immigration costs may be taxable. HMRC is advancing a broader interpretation of the BIK rules and seeking tax and National Insurance contributions where certain visa and sponsorship expenses have been met by employers on employees’ behalf.
• Each cost must be considered separately. The tax treatment may depend on what was paid, who was legally liable, who benefited, the employee’s circumstances and whether an exemption or deduction is available. For example, employer-specific sponsorship costs such as the Certificate of Sponsorship ("CoS") fee and the Immigration Skills Charge ("ISC") must be borne by the sponsor and cannot be passed on to the worker, supporting the argument that they are the employer’s own regulatory costs rather than benefits provided to the employee. HMRC may, however, rely on the broad employment-related benefits rules to argue that the employee nevertheless benefits from the employer paying the CoS and ISC fees, as payment enables their sponsorship. The Home Office prohibition on passing the CoS and ISC fees to the worker does not, therefore, necessarily determine the tax position.
• Tax relief may be available in some cases. The distinction between costs relating to an employee’s initial move to the UK and those arising on a subsequent visa extension can be particularly important.
• Salary decisions made for immigration purposes should also be tested for discrimination risk. A recent Employment Tribunal case involved a non-sponsored employee who was paid less than sponsored colleagues performing the same support worker role.  At the remedy hearing, the Tribunal awarded her compensation.  
• The risks are connected. Employers need to look at the complete remuneration and immigration support package, not simply whether the worker’s basic salary meets the relevant salary threshold required for sponsorship.

Immigration costs and the BIK risk

Employers commonly fund visa application fees and other immigration-related expenditure when recruiting or retaining sponsored workers. Historically, some businesses may have regarded those expenses simply as costs of employing international talent.

HMRC has, however, increased its scrutiny of employer-funded visa expenses and is advancing a significantly broader interpretation of the BIK rules, seeking to collect tax where an employer has met visa costs on an employee’s behalf.

The correct treatment is fact specific. Employers should establish:

• what immigration or professional cost has been paid;
• whether it relates to the employee, their family or the employer;
• who is legally responsible for paying it;
• who receives the underlying benefit; and
• whether a specific exemption or deduction applies.

Employers should avoid treating every immigration expense in the same way. Even where a cost initially falls within the benefits regime, tax relief may be available for certain travel and related expenses when an individual comes to work in the UK. The employee’s circumstances, and whether the cost relates to their initial move or a later visa extension, may affect the result.

The analysis should therefore address three questions:

• Does a taxable benefit arise?
• Is an exemption or deduction available?
• How should any taxable amount be reported?

In limited circumstances, certain visa costs incurred in connection with an employee’s (and potentially their family’s) travel to the UK may qualify for relief. This may be relevant where an overseas recruit or international assignee incurs visa-related costs as part of their initial relocation to the UK. By contrast, the position may be more difficult where an employee is already working in the UK and the employer pays for a later visa extension, as those costs may be less readily connected with the original journey to the UK. The availability of relief will depend on the particular facts and statutory conditions.

Visa application fees and the Immigration Health Surcharge* have generally been regarded as taxable benefits when paid on an employee’s behalf unless a specific exemption or deduction applies. 

*Payment of the surcharge entitles the applicant to access NHS services during the period of their permission, broadly on the same basis as a UK resident, subject to standard NHS charging rules (for example, it does not cover prescription or dental charges that UK residents would also pay).

The wider cost of getting the tax treatment wrong

If an immigration expense is taxable, the employer must decide how it should be reported and who will bear the tax. Depending on the circumstances, this could involve payroll, benefits reporting or settlement through a PAYE Settlement Agreement ("PSA").

Employer National Insurance contributions may also be payable. If the employer has agreed to protect the employee against the additional tax liability, a tax gross-up could turn an already substantial immigration expense into a significantly larger cost.

The practical risk is heightened where different teams operate independently. Immigration may approve the expenditure, Finance may pay it and the Global Mobility team may manage the employee, without Payroll being told that a potentially reportable benefit has arisen.

Pay parity: can sponsored workers be paid more?

Tax is not the only issue. Where a sponsored worker must receive a particular salary to meet the requirements prescribed under the Immigration Rules, employers may find themselves paying that worker more than a non-sponsored colleague doing the same job.

This issue arose in the Employment Tribunal proceedings of Mrs G Gharabli v Cedar Hope Care Services Ltd (Case Number: 6009247/2024). Ms Gharabli worked as a support worker from February 2023. She discovered that overseas support workers with Skilled Worker visas were being paid £12.31 an hour, while she and other non-sponsored support workers received £10.50 an hour. Approximately 80% of the employer’s staff worked under sponsored visas.

Ms Gharabli’s pay was increased after she raised the discrepancy. Following further events and disagreements, she resigned with immediate effect in June 2024, citing discrimination on the basis of pay among her reasons. Her Tribunal claims included direct and indirect race discrimination, direct and indirect religion or belief discrimination, and whistleblowing. Only her indirect race discrimination and whistleblowing claims succeeded.

The Tribunal accepted that complying with the Skilled Worker minimum salary requirements was a legitimate aim. However, immigration compliance alone was not enough to establish that the resulting pay disparity was proportionate. In particular, the employer had not provided analysis or evidence showing why it would have been financially prohibitive to increase the pay of non-sponsored employees performing the same role.

At the remedy hearing, the Tribunal awarded her £14,174, which included £10,000 for injury to feelings and £2,237 for financial losses.

This case was a first-instance Employment Tribunal decision and is not binding on other tribunals. Nor does it establish a blanket rule that sponsored and non-sponsored employees performing the same role must always be paid the same. Focusing on indirect discrimination, the question will be whether any indirectly discriminatory pay practice can be objectively justified as a proportionate means of achieving a legitimate aim. Employers should therefore be cautious about the litigation risk where sponsored and non-sponsored workers performing the same role receive different rates of pay.

A discrimination issue?

If sponsored workers are predominantly of particular nationalities or racial groups, a policy of paying them more than non-sponsored colleagues may lead to race discrimination claims, particularly claims of indirect race discrimination.

The key point is that meeting an immigration salary requirement does not end the analysis. Salary-setting decisions made for immigration purposes should be tested through an equality lens. Employers should ask:

• Are sponsored and non-sponsored employees performing the same or materially similar roles?
• Is there a difference in pay?
• What is the reason for that difference?
• Has the rationale been recorded and reviewed by HR and employment legal teams?
• Could the same immigration requirement be met without creating an unexplained disparity?

Looking at pay and benefits together

The two risks can pull employers in different directions.

A business may increase a sponsored worker’s salary to meet immigration salary thresholds, creating a pay disparity with existing staff. Alternatively, it may fund immigration expenses as part of the worker’s package, only to discover that the expenditure creates a taxable benefit and additional National Insurance costs.

Employers should therefore review the overall package, including:

• basic salary;
• visa and related immigration expenses;
• support provided to family members;
• any employee tax paid or grossed up by the employer; and
• any other benefits provided because the employee requires sponsorship.

This combined review should identify both the employment tax consequences and any potentially problematic differences between sponsored and non-sponsored workers.

Wider immigration changes

These issues arise against the backdrop of continuing changes to immigration routes, salary requirements and sponsor obligations. Employers can read more in our article: The major immigration changes in 2025 and what to expect this year.

Key actions for employers

Employers with sponsored workers should:

• Analyse immigration expenditure: identify all visa, relocation and associated professional costs paid for workers and their families.
• Review the BIK treatment: determine who is liable for and benefits from each cost, and whether any exemption or deduction is available.
• Review contracts and policies: identify whether contracts, policies or assignment letters require the employer to meet or gross up the employee’s tax.
• Check reporting arrangements: confirm whether taxable amounts are being dealt with through payroll, benefits reporting or a PSA.
• Audit pay differences: compare sponsored and non-sponsored employees performing the same or similar work.
• Record the rationale: document why any difference in salary or benefits exists and assess it through a discrimination lens.
• Review historic treatment: consider whether previous immigration expenses or pay arrangements require further investigation.
• Join up internal teams: ensure immigration, HR, global mobility, finance, payroll, employment tax and legal teams share information effectively and apply a consistent approach.
• Budget for the full cost: include possible income tax, employer National Insurance contributions and gross-ups when modelling the cost of recruiting or relocating sponsored talent.

Immigration compliance should not be considered in isolation. A decision that enables the business to sponsor a worker may still create an unexpected tax liability or an employment dispute about differences in pay. Reviewing both issues at the outset is likely to be considerably easier, and less expensive, than addressing them after HMRC or an employee asks probing questions.

James has 40 years’ experience in real estate. He began his career at Hirshfield’s in 1986, specialising in auctions and investment, before becoming a founding member of niche commercial investment agency Lewis and Partners in 1994. 

In 2000, he established Faircroft Real Estate in partnership with Arrowcroft, completing transactions with a value exceeding £100 million. During the global financial crisis, he helped create a substantial asset management business dealing with distressed assets on behalf of a range of financial institutions. He subsequently became Chief Executive Officer of Arrowcroft following its acquisition of Faircroft in 2012. 

James left Arrowcroft in 2013 to establish Phoenix Real Estate, a multi-family real estate investment vehicle. 

Throughout his career, James has led office refurbishment and redevelopment projects across the UK’s major cities. His work is now focused primarily on London. 

He is a qualified chartered surveyor.

Roshni is a corporate occupier specialist with particular expertise in the technology and retail sector. Her practice is further complemented by broad experience acting for various institutional landlords and investors.

Before joining Mishcon de Reya, Roshni advised major UK and international businesses and retailers on complex occupational transactions, including flagship acquisitions, portfolio management and international expansion.

“I am delighted to be joining Mishcon de Reya. Its emphasis on people and relationships, combined with the importance of Real Estate to its long-term strategy, made Mishcon a natural fit for me. Acting for clients who set the benchmark in the occupier market is a key part of my practice, and Mishcon’s ambition and market-leading reputation provide a strong platform for the continued growth of that practice. I am looking forward to working alongside an exceptional team and contributing to the firm’s continued success," said Roshni Kotecha Chadda, Partner.

Stephen Hughes, Chair of Real Estate said, "We are thrilled to have Roshni join the Mishcon de Reya Real Estate team. Her joining underlines the continued investment and recognition of Real Estate as a key sector in Mishcon de Reya's Vision 2030. She is a brilliant lawyer with a proven track record of deep client insight, and building trusted relationships. Roshni expertly blends technical excellence with a commercial approach, and she will be an asset to our existing practice, which is underpinned by operational insights and long-term, embedded client relationships."

Nicholle welcomed the focus on development and greater housing density around well-connected stations but said the real test would be whether the reforms address the practical barriers delaying delivery.

She also highlighted the potential for AI to help speed up planning decisions. As the Government seeks to streamline consultation and expand delegated decision-making, Nicholle suggested that AI could support planning officers by analysing planning policy and consultation responses, while retaining appropriate professional oversight.

Read the coverage

• Estates Gazette
• Planning
• BENews
• Inside Housing
• Housing Digital
• Property Industry Eye
• The Planner

• The UK NZCBS provides a common reference point for anyone seeking to fund, procure, design, construct, occupy, manage or invest in net zero carbon buildings.
• As well as providing an industry-agreed definition of what constitutes a "Net Zero Carbon Aligned" building, it also lays out the methodology for demonstrating that these conditions have been met.
• As of 28 July 2026, buildings may be independently verified against the standard, helping to cut through greenwashing and ensuring that only buildings with demonstrable low carbon outcomes can claim Net Zero Carbon Aligned status.
• Having contributed to the UK NZCBS's development, Mishcon de Reya is delighted to see this industry-wide initiative move from concept to implementation.
• Because the UK NZCBS complements existing frameworks (e.g., BREEAM, LEED and NABERS UK), we foresee that the market norm for leading assets will become a combination of all of them.
• We advise real estate stakeholders to actively consider how, and how quickly, adoption of UK NZCBS is likely to influence investment decisions, occupier requirements, procurement strategies and financing arrangements.

Why does the UK NZCBS matter?

For many years, the real estate industry has embraced net zero ambitions. However, different organisations have adopted different methodologies, reporting approaches and definitions, making it difficult to compare assets or assess the credibility of competing claims.

Co-developed by leading institutions across the built environment, the UK NZCBS addresses the need for a consistent, industry-agreed definition of what constitutes a Net Zero Carbon Aligned building and unified methodology for determining that these requirements have been met. Evidence of conformity must be verified by independent experts to ensure confidence that only buildings with demonstrable low carbon outcomes can earn Net Zero Carbon Aligned status.

That verification process opened on 28 July 2026 and, having contributed to the development of the standard, Mishcon de Reya is delighted to see this industry-wide initiative moving from pilot into implementation.

Where does the UK NZCBS fit alongside BREEAM, LEED and other standards?

Understanding how the UK NZCBS fits within the existing landscape helps to illuminate its significance further. Rather than viewing different frameworks as competing certifications, it is more useful to think of them as answering different questions:

A new market norm?

We believe it is entirely possible that the market norm for leading assets will become a combination of all these certifications and frameworks. A building may continue to achieve BREEAM Outstanding or LEED Platinum to demonstrate broad sustainability credentials, while also pursuing UK NZCBS verification to substantiate claims of net zero carbon alignment.

How does the UK NZCBS add value for market participants?

The importance of the standard lies not simply in its technical requirements, but in the wider role the UK NZCBS is intended to play in the market — providing a common reference point for anyone seeking to fund, procure, design, construct, occupy, manage or invest in net zero carbon buildings.

For owners, it is a way to demonstrate that an asset is genuinely aligned with the UK's legally binding climate targets and the real estate sector's fair share of the remaining carbon budget, using independently verified evidence rather than design-stage assumptions. For investors, occupiers, funders and other stakeholders, it can offer a level of confidence and comparability that has previously been missing, allowing them to make better informed decisions.

What should they be doing now that UK NZCBS verification is open?

For real estate stakeholders, the practical question is no longer whether a common net zero standard will emerge. Now that verification is open, it is whether and how quickly that standard will begin to influence investment decisions, occupier requirements, procurement strategies and financing arrangements.

How can Mishcon de Reya help?

Mishcon Purpose — our interdisciplinary ESG and sustainability practice — advises corporates and private interests on evolving ESG risks and opportunities, and development and implementation of strategy and governance frameworks to address them. By combining expert lawyers and sustainability professionals, our team balances compliance with strategic foresight, not only helping clients to mitigate risk, but also to seize opportunities to lead and benefit from sustainable transition.

With over 140 fee earners, including 46 partners, Mishcon de Reya's Real Estate department is one of London's largest and most diverse property teams. The department includes well-regarded specialist practice areas and provides a one-stop shop for all our clients' property requirements, delivering a seamless service from investment, structuring, funding, acquisition and planning, through to construction, development, tax and litigation advice. Real Estate is one of the three key strategic sectors outlined in the firm's Vision 2030 strategy.

To discuss your biggest challenges and ways we can help, get in touch.

Shortly after being made a Partner, Cassandra went on maternity leave and, in the interview, she discusses the challenges on her return of rebuilding client relationships and the pressures facing women at a pivotal stage of their career.

Cassandra also feels strongly about normalising people’s needs to balance parenthood and external commitments with work-life. She feels a responsibility to show that it can be done, and that partnership, parenthood and business development need not be mutually exclusive.  

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