Barmag76 by Barrister Magazine

the barrister

#76

ESSENTIAL READING FOR BARRISTERS

EST. 1999

10th April -25th May 2018 EASTER Term Issue

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ISSN 1468-926X

Features

A message from BSB Chair, Baroness Blackstone It is a great honour and privilege to take over from Sir Andrew Burns as the lay Chair of the Bar Standards Board. I am very much looking forward to deepening my understanding of the work of the Bar and to writing in The Barrister to keep you informed about our work. I started at the BSB in January and I am taking a close interest in the current regulatory issues being considered by the BSB. These include taking into account the views obtained from our two recent consultations on Future Bar Training and on transparency standards at the Bar in response to the recommendations of the Competition and Markets Authority. We are very grateful to all those who took part in those consultations and we remain committed to working closely with you as we take these issues forward. In February, we published the latest version of the BSB Handbook. The new

Addressing the challenges of financial management in chambers No one welcomes having to pay their rent, but it’s a fact of life for a member of chambers. For many, the role of Treasurer or being the manager tasked with financial management of a set means being faced with an unpleasant challenge. There is a potential conflict of interest between a chambers and its members when it comes to setting and collecting rent. Can this be addressed and what are the financial controls that should be in place to ensure that members can see their money is spent effectively? From fee note to receipt of funds, to rent invoice, to payment of chambers’ costs,

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version, which is available to read on our website (http:// bit.ly/2FStU2A), introduces new Authorisation to Practise requirements, streamlines the public and licensed access rules, and Baroness Blackstone introduces new Chair, Bar Standards obligations for Board barristers and BSB regulated entities to comply with the new Anti-Money Laundering regulations. These are important and necessary changes. They introduce four new reporting requirements whenever

By Phillip Taylor MBE, Reviews Editor of ‘the barrister’ and Head of Richmond Green Chambers

to sharpen your 22 How presentation skills

By Douglas McPherson, Director, Size 10½ Boots and author of The Visible Lawyer and Package, Position, Profit

p.8

A simple challenge is that each member’s individual practice is a business in its own right and the chambers must be able to demonstrate value for the money being charged. Another issue will always be getting agreement to significant expenditure, as each member will have their own view as to what the priorities should be. A previous article considered the important factors in delivering change in chambers. One of the critical points highlighted was the necessity of good quality communication. Building confidence in the financial management of a p.8 set relies just as strongly on good communication. This ranges from

Video Evidence: Handle with Care By David Spreadborough, Amped Software

the financial management of a set should be a straightforward task. One of the key benefits of working within a chambers is that it allows members to spread the costs of clerking, premises and administration between them, so there should be a clear cost advantage. Yet many sets have faced problems over the years and some sadly have failed completely.

Mutiny on the BREXIT A most unlikely rebel leader An Interview with Dominic Grieve QC MP

New Silks - A pension annual allowance window of opportunity? By Andrew McErlean, Chartered Financial Planner, Saunderson House

News 5 6

A new digital service is allowing people to submit appeals over their tax bill entirely online.

Government commitment to fixed recoverable costs welcomed

Publishing Director: Derek Payne 0203 5070 249 email: info@barristermagazine.com Publishers: media management corporation ltd Design and Production: Jeremy Salmon email: info@wedesign.media

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NEWS

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BSB agrees approach to improve transparency for clients of the Bar The Bar Standards Board (BSB) has set out a revised approach to improve transparency standards for clients of the Bar. This responds to the recent Competition and Markets Authority (CMA) market study of legal services and takes full account of responses to a recent BSB consultation. The proposals agreed in principle at the regulator’s recent Board meeting include: • targeting new price transparency requirements on the more standardised services provided by Public Access barristers, who provide services direct to the public and whose clients are most likely to benefit from “shopping around”; • working closely with Specialist Bar Associations to develop guidance for barristers providing these services; • considering whether in relation to Public Access work disclosure requirements should apply only to certain chambers (which could be defined by size or type of service provided); • giving further consideration as to whether all chambers’ websites should be required to state their most commonly used pricing models and that professional and/ or lay clients (as appropriate) may contact chambers to obtain a quote; • requiring all chambers’ websites to state the areas of law in which they most commonly provide services;

regulator’s view is thatall barristers should be required to meet minimum transparency standards in relation to service and redress.

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requiring all chambers with Public Access registered barristers to display a link through to the guidance for lay clients on the BSB’s website; requiring all chambers’ websites to display a BSB logo, the text “barristers regulated by the Bar Standards Board” and information about any right to complain to the Legal Ombudsman (LeO); and further consumer testing to make sure that any disclosure requirements placed on barristers strike the right balance between helping consumers make informed decisions whilst not delivering overly complex information.

The regulator agreed not to proceed with proposals to require chambers to publish first-tier complaints data. However, it will consider a requirement for chambers’ websites to link to the BSB’s Barristers’ Register to enable clients to search for any current disciplinary findings by the Bar Tribunals & Adjudication Service (BTAS) in line with the BSB’s disclosure policy. The BSB will also explore the feasibility of a similar arrangement for complaints which have been upheld by LeO. In considering how best to target new disclosure requirements, the Board agreed that delivering a proportionate approach to the CMA market study is best achieved by focussing on the Public Access Bar, where clients will most benefit from greater transparency of information about services, fees and rights of redress. The regulator agreed not to impose disclosure requirements in relation to hourly rates and fixed fees on barristers undertaking work referred by solicitors. However, the

Focus on holding justice system steady, Law Society tells LSB The Legal Services Board’s (LSB) primary objective should be to maintain stability and confidence in the justice system, the Law Society of England and Wales said in its response to the oversight regulator’s strategic and business plan. “The LSB has a pivotal role to play in keeping the UK legal services market stable: holding frontline regulators to account, maintaining the calibre of regulation that distinguishes UK legal services and demanding sound evidence for any proposed changes,”

said Law Society president Joe Egan. “This becomes even more important as the UK navigates one of the biggest constitutional upheavals in living memory. Market and technological developments, changes in consumer expectations and behaviour, legal aid cuts, changes to anti-money laundering rules and the introduction of the General Data Protection Regulation – to name but a few – combine to create a complex, fast-moving legal environment. “English and Welsh law is one of our

The BSB has gathered evidence to inform its work through a series of “pilots” and will continue to undertake further research. This will ensure that its approach is robust and that any mandated disclosure requirements placed on barristers are reasonable and proportionate and, most importantly, will benefit consumers. BSB Director of Strategy and Policy, Ewen MacLeod, said: “We agree with the CMA that greater transparency at the Bar should enable consumers to shop around when looking for a barrister and promote competition in the market. We have listened to the responses to our recent consultation and we agree that any new transparency requirements must be properly targeted and that poorly targeted requirements may not be helpful for consumers. Our regulation needs also to reflect the fact that the Bar remains a predominantly referral profession in which most clients do not purchase legal services direct from barristers. As a result of our consultation, the scope of our proposals has therefore changed and we believe that our more focused and targeted approach will continue to benefit consumers and the wider public, whilst working closely with the profession to ensure that our final proposals are feasible and proportionate.” Following a further rule change consultation planned for later this year and approval by the Legal Services Board (LSB), these transparency requirements will come into force by May 2019. However, the BSB is not proposing to make compliance with any fee transparency requirements mandatory until early 2020. The effectiveness of the new requirements rules will be evaluated from December 2020. greatest exports and it underpins the domestic economy. It is crucial that we maintain confidence in the legal market to provide the firmest possible foundation for Brexit negotiations.” Legal services are today a real success story for the UK. They make a significant contribution to the economy, amounting to £25.7bn in 2015, create employment for at least 370,000 people and add £3.6bn to our balance of payments. Joe Egan concluded: “Given the pace of change, the LSB should ensure any further regulatory change is only introduced on the basis of robust impact assessments and rigorous analysis, to ensure that consumers can access justice and are protected when they do.”

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NEWS

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Fairer pay for criminal defence advocates in legal aid cases line with modern practices, taking into account the fact that more and more evidence is submitted electronically. The process of determining fees will be simplified so that advocates can better understand how they will be paid for their work before they take on a case.

The reformed Advocates’ Graduated Fee Scheme (AGFS) will ensure that pay better reflects the actual work being done by criminal defence advocates and that advocates are being fairly remunerated for work in more complex cases. The changes will bring the scheme in

The new scheme is part of ongoing reforms to deliver a modern and effective justice system, whilst ensuring that legal aid is available in cases where it is most needed. A Ministry of Justice spokesperson said: These changes will create a simpler and more modern pay system for defence advocates in legal aid-funded criminal cases.

Video hearing pilot launched

A pilot launched will test the fully video courtroom with members of the public for the first time. The first hearings will take place this spring, and will enable people to have their tax appeal heard through a video hearing. This will save them the time and money spent travelling to court and waiting for their hearing - which can mean taking an entire day off work. It will also make it easier for people with health problems that can make it harder to attend a physical court building. By testing and evaluating the pilot, HMCTS will explore how video hearings might be used to improve access to justice and help cases progress faster. Video technology is already used in criminal courts to allow some victims and witnesses to give evidence without having to come face to face with the accused – examples include a 97 year old victim of an aggravated burglary, and a witness to a gang murder who was not comfortable giving evidence in court. This pilot is taking this concept a step further - with all attendees, including the judge, participating in the hearing via video technology. Making use of technology to hold

video hearings for technical parts of cases that mainly involve legal professionals and judges could save court time and help cases to progress faster. Technology is used in a variety of ways in courts and the various ways in which video links are used in proceedings are kept under regular internal review by HMCTS. Justice Minister Lucy Frazer, said: We are spending £1 billion on transforming and modernising the justice system. Video hearings have the potential to improve access to justice and speed up cases. This pilot will provide important information – together with an increasing body of evidence from other countries – to drive innovation to make the wider system quicker, smarter, and much more user-friendly. HMCTS are writing to potential participants this week to invite them to take part in the pilot. The video hearings will take place over the internet, with each participant logging in from a location of their choice, using a webcam and, for the purposes of the pilot, the judge located in the court

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We have listened to the views of legal professionals to ensure that advocates will be paid in a way that better reflects the reality of the work they do. The government previously consulted on the fee proposals and has taken on feedback from professionals to help shape the scheme. Significant changes have been made to the original proposals to ensure that the vital contribution of junior barristers and solicitor advocates is better recognised in the new scheme. The changes will came into effect on 1 April 2018 and will keep spend on fees at the current level, so that the reforms come at no additional cost to the tax payer.

room. HMCTS are working closely with the judiciary to ensure the majesty of a physical courtroom will be upheld. The choice to use this new type of hearing would always be made by the Judge in the case. It will be possible for private online conversations to be had before the hearing, and the format and process of the hearing will be the same as in a usual court room. The move is part of the Government’s £1 billion investment to modernise the court service, making it swifter, simpler, and easier to access for everyone. HMCTS is exploring how justice can best be served in the digital age. Other examples of the Government’s court reforms which are making access to justice easier for everyone include: • Launching the first divorce application services online at four sites - making the process easier to understand for divorce applicants and helping to progress applications. • A new paperless system, in operation at Lavender Hill Magistrates’ Court, which means thousands of offenders caught dodging fares or using fraudulent tickets can now be punished more swiftly and effectively. • A new service which allows people to submit their tax appeals online – drastically cutting the number of applications being returned as incomplete or inaccurate.

NEWS

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already taken, preventing people from wasting time submitting applications which are then returned.

Appeal your tax bill online

A new digital service is allowing people to submit appeals over their tax bill entirely online. The initiative means people no longer have to print out, manually fill in and post their forms. It is also drastically cutting the number of applications being returned, as incomplete or inaccurate forms can be amended over the phone with the help of HMCTS staff. Over 2,000 taxpayers have already benefited from the quicker, streamlined system, with on average a quarter of appeals made online since the scheme was introduced. The move is part of the Government’s £1 billion investment to digitise the court service, making it quicker, simpler, and easier to access for everyone.

The online tax system continues to develop and in the early stages of 2018 will be extended to cater for an increased range of business.

We are spending £1billion on transforming the justice system so it is fit for the digital age. Allowing people to submit their tax appeals online is just one example of how we are making the system quicker, smarter, and much more user-friendly. Online appeals are submitted to the tax tribunal service so that the case can be considered by a judge and, if necessary, proceed to a hearing. The simplified forms spell out exactly what steps applicants must have

Justice Minister Lucy Frazer said:

Other examples of the government’s court reforms which are making access to justice easier for everyone include: • Launching the first divorce application services online at four sites - making the process easier to understand for divorce applicants and helping to progress applications. • A new paperless system, in operation at Lavender Hill Magistrates’ Court, which means thousands of offenders caught dodging fares or using fraudulent tickets can now be punished more swiftly and effectively. • The increased use of video links meaning more vulnerable victims can give evidence away from the courtroom and without having to meet their attacker face to face.

New joiners at Serjeants’ Inn Chambers Serjeants’ Inn, which specialises in important, high-profile cases, often involving ethical or social issues, has announced two top-tier lateral recruits: His Honour Brian Barker CBE, QC and Dijen Basu QC. Serjeants’ Inn welcomes His Honour Brian Barker QC CBE who joins Chambers as an associate member. Following a distinguished judicial career, His Honour Brian Barker QC now chairs high-profile inquests and inquiries, a key practice area for Serjeants’ Inn. Previously the Recorder of London - the Senior Judge at the Central Criminal Court - his work since retiring from the Old Bailey in 2015 includes the fresh inquest into the death of Pte Cheryl James at the Deepcut Army Barracks in 1995, a MOJ-funded Article 2 inquiry and a private members’ club internal inquiry.

further still with the arrival of “absolutely outstanding”[1] silk Dijen Basu QC, who joins from 5 Essex Court. Dijen was called to the Bar in 1994 and took silk in 2015. Dijen was appointed a Crown Court Recorder In 2009 and he became a member of the Attorney General’s Panel of Special Advocates the following year. He focuses on police, public and employment law, advising and representing police forces and other police organisations in relation to civil and public law and judicial review proceedings.

He is the current Judicial Panel Chairman of the British Horseracing Authority and the Independent Reviewer of National Security in Northern Ireland.

Dijen has worked on a variety of high profile cases, including the first 12 pre-inquest review hearings in relation to the inquest into the death of Russian whistle-blower Alexander Perepilichnyy, in which he represented the Surrey Police, and the recent Court of Appeal case concerning the right of Forces to charge for the policing of events. His arrival is testament to Serjeants’ Inn’s standing at the pinnacle of the police law field: members act in the cases which shape police law in this country.

In addition, the award-winning chambers has strengthened its police, public and employment practices

A qualified doctor, Dijen is registered with the General Medical Council. He is uniquely placed to advise on, and

act in, contentious matters connected with healthcare, including employment disputes, clinical negligence and personal injury, regulatory and disciplinary issues and inquests. His medical experience also makes him a particularly strong cross-examiner on medical and scientific matters. These additions follow fast on the arrival of three more established practitioners - Rachel Spearing, Ian Skelt and Andrew Perfect - over the last six months. Director of Client Care, Catherine Calder, notes, “we are very glad to welcome such stellar additions to Chambers as a further advance in the momentum Serjeants’ Inn has seen over the last three years, with numbers increasing by over 30% and a gain of 10 silks. The set has won 20 awards in the same period and is recognised by the Bar Council for its excellence in well-being”. The barrister magazine will not accept responsibility for information supplied by other parties, views expressed may not necessarily be that of the editor or publishers.

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NEWS The Government has announced that an expert group will be formed to work on introducing a new cap on the amount of costs that lawyers can recover in clinical negligence cases. The proposed cap will be applied to all cases up to £25,000 and will help to save the NHS up to £45 million a year. Commenting, Dr Rob Hendry, Medical Director at the Medical Protection Society (MPS), said:

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Government commitment to fixed recoverable costs welcomed

“We welcome the Government’s commitment to a fixed recoverable costs scheme for clinical negligence claims. From the £1.7bn the NHS paid out on clinical negligence costs in 2016/17, legal costs accounted for 37% of that bill. It is right that we question whether such costs are sustainable for the NHS, and whether this amount of NHS money should be spent on lawyer fees. “The creation of an expert group will help to drive a fixed costs scheme forward, ensuring the threshold and process for clinical negligence cases is considered and implemented swiftly. “We had hoped to see a bolder decision on the threshold with cases up to the value of £250,000 included in a scheme, however a £25,000 threshold is a positive first step – one which we hope will be reviewed and possibly increased over time. “We also welcome the Government’s plan for a wider, cross department strategy to drive down rising clinical negligence costs. Indeed, a fixed recoverable costs scheme is one of a number of reforms that will be needed if we are to really tackle the issue. Our Striking a Balance campaign sets out the package of reforms we believe could achieve a more sustainable system.” Example of clinical negligence case where legal costs exceeded the award to claimant:

In a case involving a delayed

diagnosis of a pituitary tumour which settled at £3,250, legal costs of £72,320 were sought. That was reduced to £24,600 after a provisional assessment last summer, which found that the bill was disproportionate. Find out more about MPS’ Striking a Balance campaign at www. medicalprotection.org/balance About MPS: The Medical Protection Society (“MPS”) is the world’s leading protection organisation for doctors, dentists and healthcare professionals. We protect and support the professional interests of more than 300,000 members around the world. Membership provides access to expert advice and support together with the right

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to request indemnity for complaints or claims arising from professional practice. Our philosophy is to support safe practice in medicine and dentistry by helping to avert problems in the first place. We do this by promoting risk management through our workshops, E-learning, clinical risk assessments, publications, conferences, lectures and presentations. MPS is not an insurance company. All the benefits of membership of MPS are discretionary as set out in the Memorandum and Articles of Association.

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barristers are applying for or p.1 renewing their practising certificates. In addition to the existing reporting requirements, they will now be asked to: • • • •

provide information on their practice areas, including any public access work; declare work that falls within the scope of the new Anti-Money Laundering Regulations; register, if they work in the Youth Courts, or intend to do so; and register their MyBar account with a unique email address to help us to communicate with them more securely and effectively.

You can read more about the new Anti-Money Laundering Regulations and our new requirement to register your Youth Court work with us on the Bar Standards Board website (http:// bit.ly/2FQJDiG). We do try to minimise the burden that our regulations impose but we are convinced that every one of these new disclosure requirements is essential and will help us to regulate the profession better. They were also of course the subject of a consultation that we ran last year, and the inclusion of them in the latest edition of the BSB Handbook follows the subsequent approval of the new rules by the Legal Services Board.

setting and agreeing expenditure p.1 budgets and investments, through to reporting clearly and accurately on performance. Its importance cannot be underestimated. Cash is King! First and foremost for any organisation must be cash flow management. Many businesses have proven that it is possible to post losses year after year and yet still be in a position to operate. A classic example would be Amazon. This comes down to the availability of funding provided from capital reserves or other lending / investment sources (or for a chambers, its members). We have also seen nominally profitable businesses that have failed despite apparently healthy billing. The biggest issue in these cases has been problems with the recovery of fees from clients. In addition, organisations that rapidly expand, without proper planning, can face difficulties due to increased working capital requirements (the cash within the organisation needed to cover running costs on an ongoing basis). To manage effectively there are two points to consider: 1. Every set should ensure that it has robust fees recovery processes in place. Good fees clerks may not bring in new revenue, but they can

some way to go before the Bar is fully representative of the public it serves. Some of the key findings include: • Our Authorisation to Practise window to renew practising certificates is now open and I hope that the profession will find our new MyBar portal in association with the Bar Council, helpful and easy to use when renewing their certificates. Pending the approval of the Legal Services Board for their removal, the rules concerning the Quality Assurance Scheme for Advocates (QASA) remain in the Handbook but the BSB has made clear that this Scheme will not now be implemented.

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Diversity report 2017 At the end of January we published our annual report on Diversity at the Bar. The report shows that progress was made in 2017 with regard to both diversity at the Bar and to the disclosure rates of barristers providing data. While the diversity of barristers is improving, the report shows there is

be critical to the financial health of both members and their chambers. There are too many examples where debts have been allowed to build over many months, and even years, without any realistic plan to recover the money owed. These debts can still show as value in aged debtor reports when in reality the chances of them ever being recovered is minimal. This distorts the picture and can lead to unrealistic expectations. Therefore as a first step, take time to assess whether or not these fees can realistically be recovered. Are they worth pursuing? If not then they should be written off, even though this will be very unpopular with the barrister involved. If they are worth pursuing then steps should be agreed to actively chase these outstanding fees. Build ups of unpaid fees may also reflect that not all clients are as good as they appear at first sight. It is important to recognise where clients / solicitors are poor payers or they present a high credit risk. Put in place what practical controls you can to mitigate such risks. As a significant proportion of rent will

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at 62.8 per cent men still outnumber women at 37.0 per cent at the practising Bar. However, the overall percentage of women increased by 0.5 percentage points (pp) during the last year; the percentage of Black and Minority Ethnic (BAME) practising barristers has increased by 0.5 pp since December 2016. 12.7 per cent of the practising Bar is now BAME; male QCs still outnumber female QCs, but the percentage of female QCs increased from 13.7 per cent in December 2016 to 14.8 per cent in December 2017; the percentage of BAME QCs has increased by 0.8 pp year on year with 7.2% being BAME and 89.2% being white; and the gender and ethnic diversity of pupil barristers is roughly in line with the population of England and Wales, with 51.7 per cent of pupils being female and 16.1 per cent being BAME.

You can read the full report by visiting http://bit.ly/2EjUgNY.

normally relate directly to members’ receipts, this has a direct impact on chambers finance. Just as there is a need to be firm with regards to collection of fees, chambers need to ensure that all members have paid the agreed rent in a timely fashion. Allowing this to drift is very damaging to finances and unfair to those who pay promptly. 2. Cash flow forecasts are a critical part of any good financial management process. Knowing where you are likely to be in the weeks and months ahead is vital. Simple predictions relating to income and expenditure will allow sets to plan properly. As well as likely receipts it’s important to keep track of the big crunch points such as quarterly rents for offices, VAT bills or planned major expenditure.

Forecasts should be looking ahead at least 12-18 months and updated regularly. This allows a chambers to prepare for, and address, times were finances may be seriously overstretched, before they turn into a true crisis.

some cases, this may lead to difficult discussions with members with regards to rents being charged or costs savings needed in order to match income. While never pleasant, it is still much better to be doing so before a set hits a critical point.

Such simple reports, delivered on a timely and regular basis can go a long way towards building confidence in the financial management of the set and making sure that members are aware of how the set is doing against commonly agreed goals.

On a more positive note it can also show where cash reserves are building up beyond what is necessary for chambers to function properly. It may even indicate a time when it is appropriate to offer a rebate to members.

3 Costs and overheads Within any budget there will be variable (direct) costs that relate directly to the billing. Within the budget these will flex in line with the predicted revenues. A good example of this would be any clerking salaries where there is a significant proportion of the salary relating to the receipts by members.

These KPIs can also be a valuable way of focusing members and staff on improving specific areas. Developing more specific measures can be a useful part of performance management. If a member of staff is being measured, and potentially rewarded, against specific KPIs then they will inevitably focus delivering against these.

Managing the cash within chambers is the most important aspect of good financial control. Being able to report on the position now and to give clear predictions with regards to future demands is a valuable tool. It builds confidence that the set is being operated on a sound financial footing. Forecasts & Budgets Effective forecasts with regards to future revenues and costs are important to a well run set. Ideally budgets should be prepared in advance of the new financial year and be revisited during the year to allow for significant changes, such new or departing members and staff. While finance and management committees will inevitably be involved in the fine detail of preparing these, all members should also have buy in to the plans and be able to compare actual performance against these over time. 1 Major expenditure As a first step it is worth considering the strategic priorities for the coming years. Will there be significant investments and/or expenditure requirements that need to be planned for? This will be relevant even if they are not going to happen in the next financial year. Movements to new premises, refurbishments or investment in new IT infrastructure can all have a big impact on chambers’ cash position and need to be properly planned for to minimise the impact on members’ own finances. It’s better to build reserves over months or years rather than generating a one off large bill. 2 Revenue forecasts Analyse the likely revenues for members. Feedback from members, clerks and historical performance are all valuable sources that help to achieve realistic predictions for coming year. Remember to consider any significant changes in circumstances (e.g. completion of pupillages or sabbaticals). It is also helpful to consider how billing varies across the year. Typically, there are quieter times across the year which can have a knock in impact on the finances. These predictions with regards to members’ revenue and receipts impact directly on the rents charged to members. A key part of the financial planning process is to compare these predictions to the budgeted costs. In

The fixed costs are simpler to spread across the year. Rent, service charge and rates on the property will be easily identifiable. Budgets for areas such marketing and IT will require more indepth discussion and justification. This is not a case of simply minimising all costs. It is important that consideration is given to the value delivered by this expenditure to everyone from prospective clients and referrers of work, to members, to employees. For instance, spending on marketing events or investment in chambers infrastructure may make a real difference in gaining and retaining the quality of clients, members and staff that are wanted. Reporting Prompt and accurate reporting is central to building confidence in the financial management of chambers and in avoiding many of the difficulties that have been seen in the past. Detailed management accounts showing performance for the month and for the year so far are important for those tasked with oversight and management of the finances. They become far more useful when viewed in comparison to the budget and to the previous year. It then becomes possible to identify any unexpected changes and to investigate. For members not directly involved in the financial management of the set regular accounts are rarely read or even appreciated. Instead a summary of key measures (or key performance indicators (KPIs)) are a valuable way of demonstrating how well the set is doing. Often this develops into a “dashboard” of KPI’s, often on a single page and with comparisons against targets and/or historical results, that can be reviewed easily. If they generate questions then more detailed information can then be provided. Typical areas to be reported include: • Revenue Generation – such as the number of new instructions and value of fees billed • Debt recovery (fees) – value of fees recovered, unpaid fees, or value of outstanding fees over a certain age • Chambers finances – including revenue, outstanding members’ payments, costs, cash flow and reserves

There is an important note of caution here. Care should always be taken to set the right measures and targets. A badly designed target can encourage the wrong behaviour. For instance, merely counting the number of new instructions will not guarantee their value. It is therefore valuable to consider what are the important areas of performance to focus on and how they can best be measured. In summary Reducing the tension between the financial demands of members’ own practices and that of chambers is, in large part, about ensuring clarity with regards to how those funds are being used and the value that they are delivering. Agreeing long term expenditure plans, targets and annual budgets and then regularly reporting on them, in a transparent way, is central to this. Even if there needs to be a difficult discussion with regards to rent increases or reductions in overheads, then these will always be managed better where all involved have a proper appreciation of the position and it doesn’t come as a shock out of the blue. Most importantly chambers must closely monitor cash flow and the likely position many months ahead. Developing good cash flow forecasts allows a set to plan properly for the future, ensuring that potential crises can be properly prepared for to avoid disaster. It may also be the means by which surpluses and excess reserves can be identified and funds refunded to members when it is clear that this will not create further problems later on. A positive note to end on!

Alex von der Heyde BSc (Hons), MBA, MIoD, Managing Director, Esterase Ltd Email: Alex.vdh@ esterease.co.uk Tel.: 08455 199149

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Mutiny on the BREXIT

A most unlikely rebel leader An Interview with Dominic Grieve QC MP

By Phillip Taylor MBE, Reviews Editor of ‘the barrister’ and Head of Richmond Green Chambers It is never easy being a traitor, especially when you aren’t one, and there is no exception even for the Tories. That easy going and most cerebral of Tory MP lawyers, Dominic Grieve, labelled a “liberal conservative” (surely, “a badge of honour”?), has had to face an important dilemma with the advent of Brexit- to vote against his party. For Grieve it means how far should he go in support of Brexit as a loyal Tory, and probably one of the most influential and important barristers the House of Commons currently has as a member. Anyone who has been elected will know the feeling well and that is you don’t want to go against your colleagues unless locally mandated to do so, or it’s a matter of political conscience. And so, I found myself in Dominic’s office overlooking Whitehall interviewing him recently whilst he faced a period of profound reflection on what he would have to do. Make no mistake, like many of us when asked, “do you still vote ‘remain’?”, the answer unequivocally is “yes”. But I could see it was not easy for him, and I confess the very first vote I faced as an elected politician was to go against my party in support of my electorate. With Dominic, it’s a matter of principle, and the public know it which is why we are blessed with him on the backbenches… at present anyway, plus the hate mail and juvenile sketch writers. Grieve represents leafy Beaconsfield in Buckinghamshire. His majority at the General Election in June 2017 was 24,543. He received 36,559 votes on a 72.3% turnout with Labour second. A majority of 13,987 votes was achieved when first elected in 1997 and he has remained the MP for this Chilterns constituency ever since, increasing in his majority at each successive election. And in 2017, the constituency saw a 4% swing to Labour despite Dominic gauging an extra 3,000 votes in that “snap” election. Interesting statistics when the Referendum was so finely balanced on either side in South Bucks. Born in London in 1956, Dominic was educated at the Lycée Français Charles de Gaulle on Cromwell Road in South Kensington, Colet Court preparatory school in Barnes, Westminster School, and Magdalen College, Oxford, where he received a Bachelor of Arts degree in Modern History in 1978. He was the President of the Oxford University Conservative Association in 1977. So, his antecedents are both Tory, and essentially European, as he has an AngloFrench mother, and is president of the Franco-British Society. Dominic continued his studies at what was then the Central London Poly, and now the University of Westminster, where he received a Diploma in Law in 1979. So, he came to the Bar via a non-law degree background which is much favoured now for the variety of knowledge and experience. We talked about his early days at the Bar. Fortunately, Dominic is an avid reader of “The Barrister”, so he knows our approach and is very much “one of us”! I wanted to find out how it all started for him, as the son of an MP and

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silk. He was in different chambers from his father, Percy, the MP for Solihull (1964-83) and he built up his practice in the way most of us have done with a fair mix of list work and lower court experience to begin with. However, he also obtained that special expertise one gets from the lawyer/ politician family and which assists greatly in a better understanding of how our two great functions of state operate with some inside knowledge which most barristers do have or acquire. As a London Borough councillor, Dominic saw the sharp end of the Thatcher revolution in Hammersmith & Fulham, like many contemporaries did in the Shires before he moved on to Westminster. Reviewing his early political career, it was all mainly concentrated on law and home affairs. He then became Shadow Justice Secretary and was “very happy with the move” because it clearly “did suit his talents better”. Fate took a hand, though, after 2010 and he became Attorney General for 4 years under Cameron. It is right to say that many across the political spectrum were saddened when he left office as he commands substantial cross-party respect. But we all know what he has been up to since! CONTEMPORARY LEGAL ISSUES We did initially discuss, briefly, the Jackson Supplementary Report still lurking in the shallows: “wait and see” was a recurring theme for that and many current topics we covered although Grieve is never one to shirk an opinion when asked bluntly… probably because of that cross examination style which does tend us to give a proper, if guarded answer to questions put so you know where you stand as an interviewer. On the Bach Commission and legal aid, the “current state of legal aid is unsatisfactory”, although he is “very pleased that the Lord Chancellor has announced a review of LASPO which will

much welcomed for the wonderful work performed”. And he reminded me that, as Attorney General, he had championed “pro bono” and events such as the legal walks. CONFOUNDING THE MOGG-JOHNSONS And finally, to the heavy policy. Dominic was opposed to Brexit prior to the Referendum in 2016 although he has admitted in interviews that “I’d considered myself a Eurosceptic” which has surprised some.

“review case-by-case categorizations and current restrictions on access to justice” with “the huge burdening of unrepresented parties” placed on the courts and the extra costs placed on the court systems. Again, we will wait and see. We did talk about the MoJ budget in some detail which he described as having been “severely restrained” and moved to the “crisis in the prison system” although throughout, Grieve took a most pragmatic and “right down the middle” view which is the one I hear most in the Robing Rooms these days. We do know what the problem is but, alas, there is not much by way of remedy yet in place. The best question was kept for latershould the Lord Chancellor be a lawyer. Frankly, he gave a guarded answer which I interpreted as “yes”. Events overtook us, and lo and behold, a new LC was appointed, solicitor David Gauke. We did discuss a strong Independent Bar with top quality advocacy, but Dominic remains “open-minded” about a future single disciplinary body although, on fusion, he was clear that the two parts of the profession should remain separate. He cited “the problem about the quality of advocacy” reminding me of the smallish number of solicitor-advocates. We also talked numbers with “many coming to the Bar in areas which could not sustain them” even with the continual growth and demand for legal services. With all recent interviews, the spectre of online courts silently appeared with a predictable “wait and see” caution which was expected. He talked of the “capacity to deliver” such courts with the hint that the times scales will be much longer than we originally thought. Cameras, he felt, were “a mistake”, but again I think we will wait and see. The frankness was welcome and many of the answers much as expected. We did talk about “pro bono” services which were “very

Recently, in December 2017, Dominic tabled an amendment (Amendment 7) to the European Union (Withdrawal) Bill requiring any Brexit deal to be enacted by statute, rather than implemented by government order; the amendment was passed, representing a defeat for the government. This action began the road to confound the “Mogg-Johnsons”. Talking to “The Independent” he took the historic line saying, “I do see this (Brexit) as a defining moment in modern British history”. You can see why it is useful for a lawyer to have a non-law degree.

have often toyed with the idea that Dominic is in the Chancery camp even though he is a Bencher of Middle Temple. It is the approach, you see. And we all remember Walsh v Lonsdale… and who won, and why, and the sometimes-confusing equitable maxims which might not mean what we think they mean but you get the best results from equity. So, it’s the long term which counts for that equitable gloss on the common law which is keenly felt today by many through the “fairness” approach on how we leave the EU and what safeguards we should seek to protect the public. For this dissent, much gnashing of teeth has taken place with jokey journalists although the stark reality is “the next six months are crucial” as “we are running out of time”. Views Dominic has expressed now to many newspapers and to “The Barrister” with this in-depth interview.

DISSENTING VIEWS Grieve does not predict a way out of Brexit. Barristers, judges and jurists are always interested in the dissenting judgment, whether it comes from the judiciary or in other ways like persuasive articles or Parliamentary dissent. The view is that today’s dissenting judgment is tomorrow’s good law. Such could well be the case with the intricate Brexit legislation and the scrutiny and safeguarding measures seen in the Commons whilst we await a further mauling by their lordships. The dissent shown by “the gang of 15”, or whatever number the press has now invented, proves, I suggest to readers, that we have been fortunate to have reasoned suggestions by Grieve & Co to ameliorate the harshness of the Brexiteer. And there is no question that Grieve will bail out of politics for he is in it for the long haul. The reason for his action on the “Withdrawal Bill” is simple- “it is the very immediate future” which concerns him the most at present and that is about the Bar as well as Brexit. CHANCERY v COMMON LAW And talking of comparisons, when you meet Dominic Grieve, one daring question should be asked- are you a Chancery or a Common Law type? (I didn’t). As schools of thought go, I

THE FUTURE So, it was no mutiny. Dominic is no “Remainiac” or a Tory Fletcher Christian- figments of Lunchtime O’booze now on the wagon. It’s a legal safeguarding issue for us all, so this unlikely rebel leader has done us all a favour – Brextremists get over it. We know we are going at this crucial time but it’s the way we go which is all about parliamentary and legal processes. We may not see Dominic Grieve as a cabinet minister again, but his Brexit dissent has done us all a great favour. And for contemporary legal issues he is no dissident. In fact, rather conservative as befits a Chiltern MP where wretched Brexit was so evenly balanced. We are most fortunate to have a Dominic Grieve to match the “Mogg-Johnsons”.

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And what if it does happen to you? What next? By Paul Coote. Founder and MD, Instant On IT

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There may well have been a time when there was little chance of you or your chambers being targeted to gain access to data or finances, but unfortunately those days are long gone. And yet, being custodian of your client’s data is expected and even taken for granted.

ome are still very much in denial about the risks: hacking won’t happen to me; major security breaches are a concern for bigger organisations; big firms get shamed on the front of the national newspapers; we don’t have any information that anyone else is really interested in. These misconceptions, whilst becoming less commonplace, still reign for some. Anecdotes of security issues arising from password sharing, reports of early stage phishing attempts and generic email spoofing attempts continue to serve as important reminders for all, very useful to weave into regular awareness training. However, the following example is a real-life demonstration of just how premeditated and targeted hacks are becoming. There is nothing remarkable about the company that was involved in this series of events: a mid-sized company, a company with their own uniqueness and information which they probably underestimated in terms of commercial value, a company introduced to ourselves in their hour of need. This chain of events all started with a third party gaining unauthorised access to an email account belonging to a member of the senior management team, via a phishing link which then prompted for username and password details. The ‘hacker’ hibernated for a period and, in doing so, prevented suspicions being raised. During this time, having retrieved the all-important access credentials, they became an onlooker, spending a good month observing the chosen individual’s habits: learning exactly how the individual emailed their senior staff, as well as taking copies of key contact lists, email and documents. The foundations were then in place. Armed with information, knowledge and email

account access, the imposter pressed on with taking on the Senior Manager’s persona. This involved sending emails, deleting sent emails and redirecting inbound email via rules, to prevent the victim ever seeing some email chains. The hackers’ groundwork had also included mapping out the company’s accounting processes. This taught them that payment approvals were not carried out on email but instead via SMS. With this intelligence, they recognised that intercepting the SMS process would give them a golden ticket. Consequently, they altered the victim’s iCloud account to enable payment authority to be provided without their knowledge. Payment requests were made and authorised seamlessly, exactly as planned. Eventually, mysterious email activity triggered concern and the ‘hack’ was detected and blocked, but unfortunately this wasn’t quite the end of it. The attacker continued to use their newly downloaded contacts file for a few weeks, taking instead to spoof emailing client contacts. And, of course, some of the damage is longer lasting still. Unfortunately, this tale of woe is not fictitious and this style of organised attack is only set to become more frequent. There are, however, practical steps that can be taken to avoid structured attacks such as this. •

You can start by dealing with enhancing the security basics via industry standards like Cyber Essentials. Standards like Cyber Essentials call for standardisation of best practice. Cyber Essentials Plus involves a third-party audit and demonstrates clear public intent that you take security seriously. It is recognised that achieving the standard is not without its challenges given

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a chamber’s structure, but it certainly helps avoid far greater challenges down the line. Having a Head of Chambers’, for example, be victim to a similar chain of events to that we have outlined, would make for very bad PR. Secondly, providing ongoing training sessions, covering the current risk landscape and how to avoid being an easy target, is essential. It is strongly advised to complement this with regular ‘managed’ third-party phishing tests, to educate barristers and staff on how to spot the latest trends in phishing. Thirdly, security tools are often provided as part of your work software. These are not provided to complicate life; they should form part of chambers’ IT policy and be adopted where available. For example, two-factor authentication would have prevented the incident escalating as we have described, had it been turned on for the victim’s account. With Microsoft’s Office 365, this functionality can be switched on without charge. Without significant cost, your IT partner should be able to help customise how this works for your chambers, by enforcing this only outside of your trusted locations, such as chambers’ offices. Maybe you want to consider taking things a step further – either now or in future – and set conditions around which devices can access services such as email. Lastly, as part of an improved security policy taking GDPR compliance into account, you can put rules in place to check or audit outbound emails and to block the sending of sensitive or classified documents, or use Information Protection tools to restrict the access of specific documents to internal staff only.

A little expert advice earlier on and this particular attempt could have been thwarted. Even though IT is not chambers’ core business, it is becoming an increasingly important aspect for chambers’ management, staff and barristers alike. Intelligent IT can take on clever crooks, or at least limit the damage they might cause.

About Instant On IT Instant On IT have been tailoring IT to barristers chambers’ unique requirements for around 14 years. We provide a full range of IT services, from strategic consultancy and day-to-day management & support, to secure cloud and business connectivity services. 020 3855 0055 info@instantonit.com www.instantonit.com Office locations: central London, New Zealand

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Closing the circle: Forensic strategy in support of the ‘links’ between animal and human abuse By Samantha Pickles BSc (Hons) MSc PGCE MCSFS FLS FRES Lead Forensic Scientist, ArroGen Veterinary Forensics Limited

Closing the circle In February this year, the Environment, Food and Rural Affairs Committee published its report on the Pre Legislative Scrutiny of the draft Animal Welfare (Sentencing and Recognition of Sentience) Bill . Although due for substantial revision, the motion to increase the sentencing terms for convicted animal abusers has been met with support from Parliament and the public alike. Currently, the maximum sentence for animal cruelty is six months in prison in England and Wales, and 12 months in Scotland; some of the lowest maximum sentences for animal cruelty in Europe and America. The proposed legislation invokes a punishment of up to five years, in line with Australia, Canada, the Republic of Ireland and Northern Ireland. These additional powers of sentencing allow for greater flexibility and severity where required, and acknowledges the significant risk of repeat offences – to other animals, and the public. According to a report published by Battersea Dogs & Cats Home last year, serious animal cruelty offenders are five times more likely to commit further acts and animal abuse is 11 times more likely in situations involving domestic violence . The Centre for Crime Prevention states that three out of four criminals convicted of animal cruelty will have previously been cautioned or convicted . The types of associated crimes include sexual assaults and rapes, violent offences and murder, cruelty and neglect; each of which have been inflicted upon animals, but also women and children. Over fifteen years ago, a multi-agency interest assembly known as the ‘Links Group’ was formed in Scotland, which aimed to promote awareness of the significant correlations between animal, domestic and child abuse . It is now assisted by a number of authorities, including the Association of Chief Police Officers (ACPO), the Royal Society for the Prevention of Cruelty to Animals (RSPCA) and the National Society for the Prevention of Cruelty to Children (NSPCC) to name but a few, and they uphold that:

“There is increasing research and clinical evidence which suggests that there are sometimes inter-relationships, commonly referred to as ‘links’, between the abuse of children, vulnerable adults and animals. A better understanding of these links can help to protect victims, both human and animal, and promote their welfare.” The Links Group reports that over 50% of domestic

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abuse cases have involved threats and acts of violence towards family pets . Likewise, in the last decade a similar association was formed in America, the National Link Coalition under the by-line “when animals are abused,

people are at risk; when people are abused, animals are at risk”. They report comparable figures and draw on a large body of evidence to reinforce the movement . It is therefore of interest to examine data from the Office for National Statistics (ONS, UK) which estimates that 1.9 million adults (aged 16 to 59 years) would have experienced domestic abuse in the year ending March 2017 . Granting the lack of detail regarding child abuse or erroneous accusations in these figures, the probability that at least 50% of these incidents may have involved animals warrants attention, particularly as family members are more likely to seek veterinary care for their pets over medical intervention for themselves. The Links Coalition state that “veterinarians are the best-trained individuals to recognise and respond to improper animal welfare”. Given that the ONS bulletin relays the “evidential difficulties” of domestic abuse, it is appropriate to consider the burgeoning discipline of ‘forensic veterinary medicine’ to provide documentary and physical evidence, to support or refute such allegations. Forensic veterinary medicine is not confined to dead or dying animals, and where practitioners raise concerns of welfare to owners, this may in turn give rise to improved conditions and the prevention of greater mistreatment. This is not only of relevance to the animal directly, but also to the client, who may feel more confident to seek further help, for themselves and/or their family. The ‘AVDR’ (Ask, Validate, Document and Refer) framework is a useful guide , as suggested by the Medics Against Violence group, who formed the Domestic Abuse Veterinary Initiative with the Violence Reduction Unit (Scotland), in acknowledgement of the ‘links’. In particular, ‘validating’ messages lead to acceptance that violence is wrong, and bolsters the client’s worth, with the aim of a ‘referral’ to the appropriate authorities or specialists. In some instances, the presentation (by an owner, the perpetrator, or a member of the public) of a sick

or injured animal to a veterinary practice, may raise suspicion of a wider issue, particularly if repeated visits demonstrate deterioration, or multiple veterinary surgeries are utilised by the same owner or offender. Although companion animals (pets) may be an indictor within the domestic setting, any animal a person of interest may encounter (i.e. working animals, livestock, wildlife and so forth), could possibly require investigation. Taking into account the criticisms of overzealous practitioners and investigators, and the delicate yet potentially volatile situation of suggestion and confrontation, it is essential that suspicions are recorded and handled appropriately, as outlined in the standards set by the Royal College of Veterinary Surgeons (RCVS) . The ‘links’ are widely divergent and many factors are beyond the scope of this introductory piece, which seeks to raise awareness of the possibility of animal/human interactions as a potential source of information and evidence in an investigation. Of particular interest is a series of papers introducing the term ‘battered pets’ which detail the diagnostic pointers applicable to cases of animal cruelty, which are the same as those utilised in the recognition of child abuse . Reinforced by data obtained from veterinary practitioners, the articles cover the signs of suspicion, non-accidental injury, sexual abuse and Munchausen syndrome by proxy. Although the ‘links’ make for uncomfortable reading, it would be remiss of any vested party to overlook them. Not all practice-generated suspicions will progress to an allegation, nor will all cases require the maximum custodial sentence, but it is entirely possible for a routine examination to later become part of a criminal matter, some months or even years after the event. The level of documentary detail which is required, and ultimately expected of those involved in forensic investigations, far exceeds that of standard practice notes. In order to best serve the Courts, it is essential that veterinary staff are prepared for

the possibility of legal intervention, and the burden of responsibility which follows. Likewise, investigators should be considerate of the fact that such practitioners are very rarely forensically-trained. In response to the drivers of change which are affecting all our practices, ArroGen Veterinary Forensics was formed to close the circle between the ‘links’. Meeting the demands of enquires, casework and training requests, ArroGen Forensic Services and the School of Veterinary Medicine at the University of Surrey, have come together to provide a complete resource in this area, serving both the Prosecution and Defence. Post-mortem examinations of animals can now be complemented with a full forensic strategy encompassing any relevant evidence type. Non-fatal incidents are also treated in the same manner, and a database of diverse experts is available, beyond the traditional disciplines of biology, toxicology and ballistics; the increasing requests of which speak volumes as to the level of depravation encountered in these investigations. By unifying the practice of veterinary medicine, with forensic and legal expertise, we can create links of own, and be best prepared for the challenges ahead.

Samantha is the Lead Forensic Scientist at ArroGen Veterinary Forensics and is currently planning a bespoke suite of courses, seminars and training programmes, to assist veterinary and legal personnel in applied forensic procedures. Address: Unit 12 The Quadrangle, Grove Business Park, Wantage, Oxfordshire, OX12 9FA, UK E-mail: s.pickles@arrogengroup.co.uk *Adult male Fox Terrier during treatment. Image kindly supplied by the RSPCA.

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How to set up a business as a paralegal practitioner By Amanda Hamilton, Chief Executive of the National Association of Licensed Paralegals

ore and more Paralegals are setting themselves up in practice, offering their legal services direct to consumers.

And with an increasing number of people choosing to use the services of a Paralegal, now is a good time to set up your own practice – but before you do so, here are some dos and don’ts. Paralegals are not statutorily regulated and therefore you may come up against people who tell you that anyone can call him/herself a ‘Paralegal’ and it is not necessary to gain any training or qualification to carry out paralegal services. This is technically true, but in practice, it’s not accurate. However, remember that you are up against a mountain of competitors who will probably be far more qualified than you. Why? Maybe because they have a law degree but cannot afford to proceed towards gaining the professional qualifications to become a solicitor or barrister. It may be due to cost, lack of training contracts or pupillages, which pushes them to work as Paralegals either as a stepping stone to becoming a solicitor, or, as time goes on, persuades them that maintaining status as a Paralegal is just as worthwhile. Also, bear in mind that you will be handling delicate legal matters for your clients and therefore you will have to consider the possible consequences if something were to go wrong. Gaining knowledge of academic Law and practice is essential to give you and your client confidence. So, the very first thing you need to do is gain a Paralegal or legal qualification or at the very least get some paralegal training and then, as much experience as possible. This does not have to be with a solicitor or barrister, because nowadays you can gain the relevant legal experience by working in a variety of different employment environments. Examples could be: local authorities, national health service, charities, housing associations, HMRC, Crown Prosecution Service and company in-house legal departments. In fact, anywhere which has an element of legality to the work that you do.

Once you have gained some knowledge of law and legal procedure and have gained three or more years’ relevant legal experience, you need to decide whether you wish to specialize in one area of law or would like to be a general practitioner. Clearly, you must have gained relevant legal experience in all these areas first. For example, you may have worked in a human resource department of a company and have studied Employment Law – this then may well be the area of law in which you wish to practice. Alternatively, you may have gained your experience in a busy small solicitor’s firm dealing with an assortment of legal matters or cases involving for example, criminal law, small monetary claims, consumer rights, matrimonial matters etc. and, as a consequence, you may decide that you wish to become a general practitioner. Now for the hard part: setting up in practice. Remember that your clients are consumers of legal services. They want to know that the person offering legal assistance is qualified and competent to do so. It would also help if you were a member of a membership body such as NALP which has been a Paralegal organization for thirty years and is well established in the legal sector. Membership of such a body will give you kudos and confidence and will, more importantly give your potential client confidence that you know what

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you are doing. Membership is also confirmation that you have been vetted by the organization and have to abide by its rules, and can be sanctioned if something goes wrong. License to Practice: being a member of NALP entitles you, subject to the requisite qualifications and/ or experience and fulfillment of eligibility criteria, to apply for a License to Practice in the areas of law in which you can provide evidence of experience. Again, this means that NALP has done its due diligence on you and thoroughly vetted you and your credentials. Eligibility Criteria to gain a License to Practice: 1. Qualifications - you must have a minimum Level 3 qualification and a minimum of three years’ experience 2. Experience only – you may not have qualifications but can provide evidence of a minimum of five years’ experience 3. Professional Indemnity Insurance (PII): covering you for the work that you do. So, you have your License to Practice, now what do you do? You should ensure that there is no inference in any marketing for your business, whether via a website of Facebook Page, that you are a solicitor or barrister. This is what is known as ‘Holding Out’ and is illegal. So, in all your marketing you have to make it

clear that you are a paralegal and not a solicitor or barrister. Even if you do not mention this specifically, you may be held accountable if consumers can make an assumption. You must also be very much aware that there are certain activities you are unable to perform. You must know these ‘reserved activities’ (as defined by S12 of The Legal Services Act 2007) back to front and ensure that you do not undertake such activities, making it clear in any contract for services with your client, what this means, and what these activities are. For example, you cannot buy and sell property for a client. This requires the services of a solicitor or Licensed Conveyancer who is regulated through the Council for Licensed Conveyancers (CLC) Apart from the ‘reserved activities’, you can operate in much the same way as a solicitor, e.g. you can operate as a Paralegal Firm and have partners. Sole practitioner, partnership or company? So, you’re ready to start…but do you carry on your business in your own name, in partnership with other paralegals or incorporate as a limited company and use another name?

For further advice and assistance on the financial aspects of setting up in business, it is recommended that you get independent financial advice. Finally, setting up your own Paralegal practice can be very rewarding – but do make sure you follow the advice above to give both your clients and yourself the expertise, confidence and protection that you and they deserve.

This is entirely up to you, but beware: There are duties you have to comply with if you set up your business as a company. For example, you need to submit company accounts each year, and this may be burdensome (especially if you are just starting out) and costly. For this, you need to employ an accountant and probably a bookkeeper. As a sole practitioner, you can work under your own name and do not have such legal obligations. However, you would need to submit your annual tax return each year and be subject to income tax on your earnings. The advantage of setting your business up as a limited company is that your financial obligations may be limited if something goes terribly wrong.

ABOUT THE AUTHOR Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England & Wales). Through its training arm, NALP Training, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional. See: http://www.nationalparalegals. co.uk and http://www.nalptraining.co.uk/ nalp_training Twitter: @NALP_UK Facebook: https://www.facebook.com/ NationalAssocationsofLicensedParalegals/ LinkedIn - https://www.linkedin.com/in/ amanda-hamilton-llb-hons-840a6a16/

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How to spot a high-functioning alcoholic in your law firm and how to help them By Dr Bunmi Aboaba, The Sober Advantage After reports from Business Insider showing that alcoholism is a serious issue for law firms, many companies are now taking the initiative to help employees. Law firms especially can take that further step by learning how to spot a high-functioning alcoholic and how best to help them. So, what is a high-functioning alcoholic? These are individuals that function effectively and lead a relatively normal life. They are professional, with at times, highly stressful careers, and may also have a family - all the while hiding their addiction. However, just because they are high-functioning alcoholics doesn’t mean that they are not at risk of damaging themselves or others as a result of their drinking. Therefore, it’s important to help them to realise the extent of their drinking and seek help to address the problem. Signs someone may be a high functioning alcoholic It’s important to mention that drinking problems appear on a very wide spectrum, from binge drinking to alcohol dependency, so not all of the following signs may apply to everyone: Changes in routine A change in their normal working patterns could signify the makings of a high-functioning alcoholic in your law firm. Signs include frequently turning up to work late, leaving the office early, taking longer lunch breaks, disappearing for lengths of time and spending more time working alone.

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Physical appearance It’s true, alcohol can change someone’s appearance especially if they’re drinking on a regular basis. Things to watch out for include sallow skin, bloodshot eyes, profuse sweating, tremors, unexplained bruising, slurred speech and rapid weight gain or loss, as well as other withdrawal symptoms. Secretive behaviour This is where an employee / colleague is covering up a drinking problem through use of mouthwash, breath mints, breath spray, perfume, aftershave, etc. If you notice someone who keep ‘covering up’ this could be a sign they’re concealing a drinking problem. However, this is difficult as so many people use mouthwash, mints and so on, but if it’s something they wouldn’t normally do then this could be a red flag. Another major red flag is when drinking is consistently done alone. Then it is difficult to limit one’s drinking. As F. Scott Fitzgerald wrote, “First you take a drink, then the drink takes a drink, and then the drink takes you.” Behavioural changes This could be mood swings or being overly defensive, starting unnecessary arguments, talking too quickly or slowly, no volume control or even staying silent for long periods of time. Strained relationships Behavioural changes can lead to strained relationships with colleagues, partners and even clients. This could also be caused by failing to commit to attending meetings, being late for important appointments, forgetting to complete tasks and

missing deadlines. Lacking concentration If someone has lost focus and becomes easily confused, then this could be an indicator they’re struggling with a drinking problem. Alcohol causes major disturbances in sleep, so it affects day-to-day concentration, energy levels and productivity. They joke about their drinking. They often make light on the subject of how much they drink. Making jokes like “rehab is for quitters” or “we can’t let these drinks go to waste, it’s criminal” and laugh about it. In reality they are deep in denial of their addiction. BUT 50% of lawyers won’t show ANY of the abovementioned signs. So how can you identify the secret 50%?

Dr Bunmi Aboaba

You may have to dig a little deeper and pay even closer attention: 1. High tolerance to alcohol (just keeps on drinking at events and rarely appears to be ‘drunk’) 2. Overachieving at work in order to use this as a ‘convincer’ to show that there isn’t an underlying problem 3. Easily compartmentalizes work, play and personal life 4. Won’t drink more than everyone else at a work party, but may drink excessively before or after...or even in the toilets during the party 5. Has tried to quit alcohol in the past, but masquerades it as ‘for charity’ or as part of ‘Dry January.’ 6. Fits right into the existing drinking culture at the firm (if applicable)

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Will always finish a drink, as in they will never waste a drop. Obviously, it’s essential to be very careful about how you approach someone you suspect to have a drinking problem. It’s an incredibly sensitive issue and needs to be addressed with genuine sincerity.

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How to help an employee get sober Unless your employee is in an immediate crisis, the first step to helping them is indirectly. This largely includes cultivating a positive, healthy culture in your workplace: •

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Hold a seminar hosted by an addictions expert to do a talk on the signs that someone could have a problem with alcohol. This can do a great job at starting a conversation throughout your firm, increasing awareness, increasing vigilance and helping people to address any potential problems Ensure the majority of the firm’s events, meetings, parties and teambuilding days are non-alcoholic Prohibit the use of alcohol in the office Prohibit the giving of alcohol as gifts for birthdays, Christmas, weddings, etc. Incorporate team activities such as yoga, wellness courses, meditation, mindfulness lessons etc. When your staff take holidays and their email is set to “Out of Office,” make sure it means that. Enforce a strict “no contact except in dire emergencies” policy when an employee takes time off If an employee has already received rehab treatment for an alcohol problem then ensure you have a proper backto-work plan in place.

But sometimes you’ll need to get directly involved in helping an employee. So how can you approach an employee about their drinking problem? • •

Make it private: Set the scene in a secure, safe space away from the eyes and ears of your other employees Prepare for denial: The chances are, your employee, colleague, partner will be in denial and might be

•

defensive The nurturing approach: Be sensitive when dealing with your employee and emphasise that they’re not in trouble - you’re simply worried about their wellbeing Be factual: Name times and dates where possible without being accusatory. For example, “I noticed you’ve been late to work five times this month and I could smell alcohol each time.” Never mention anyone else: It’s absolutely essential that you avoid mentioning other employees; “Sarah told me she thought you were hungover.” Keep all other colleagues out of this, otherwise it will sound gossipy and backstabbing. This can be very upsetting for your employee and could cause them to withdraw even more into drink Show the consequences: Demonstrate how their behaviour has affected their work, if appropriate Empathise: While you may not have a drinking problem, it’s essential you demonstrate to your employee that you know alcohol issues are an illness and they can be treated Recommend: Suggest your employee makes an appointment with their GP to discuss any issues. Also, provide them with contact details for a variety of people who can help them, such as addiction counselors or Sober Coaches who can work with professionals who are time poor and can fit around their schedule and come to them Accommodate: Make time for them during working hours to go to any necessary appointments, support groups or therapies. Again, the assistance for s Sober Coach may be needed Cover them financially: Offer to pay for therapy, counselling or anything else they may need. After all, your investment in your employee’s wellbeing is one of the most important.

If you think one of your employees or colleagues might have a drinking problem then don’t ignore it. You could be the starting point for their new, sober lifestyle. Or maybe you’ve seen yourself in this article - either way it’s so important that the right help is received.

ABOUT THE AUTHOR Dr Bunmi Aboaba a Sobriety Companion and Coach and founder of the Sober Advantage. Bunmi is dedicated to helping professionals overcome drinking problems. Her combination of holistic therapies is used to prepare a bespoke plan designed to fit around busy schedules. Bunmi helps people battling a variety of addictions to get control of their lives and beat their addiction – for good. Bunmi uses a variety of techniques to help her clients, all of which she has used herself to help her gain her sobriety and remain sober for 10 years. See: www.thesoberadvantage.com and https:// www.linkedin.com/in/bunmiaboaba/

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Video Evidence: Handle with Care By David Spreadborough, Amped Software

Some of the new simplicities afforded to us can, unfortunately, cloud ones’ judgement when dealing with images and video for legal use.

Technology has, in most parts, made things incredibly easy. Take the example of photographs and video. We all now love to quickly snap a memory or record some footage of an event. We can adjust the colour or light, crop out unwanted parts, or trim the end of a video. It’s then a simple click on the share button to immediately have that sent to friends or family via a messaging app or social media. Not long ago, we had to carefully remove a film reel and have someone ‘develop’ the images for us. To have your own photographic dark room was a little extreme. The same goes for video where, having the ability to record, edit and then output a new ‘film’ was preserved for the select few with the knowledge, and equipment to do so. Some of the new simplicities afforded to us can, unfortunately, cloud ones’ judgement when dealing with images and video for legal use. Why do it one way, when it’s so much easier to do it another, perhaps quicker way? Even the relatively simple task of reviewing video evidence can be problematic. In late 2016, at the conclusion of a trial in Nottingham Crown Court, for four men involved in the murder of Aqib Mazhar, Judge Rafferty stated, “there must never be another case in this country where

those analysing CCTV don’t have the best equipment.” The quote stems from the fact that it wasn’t until the trial had started that video material was properly reviewed and that significantly changed the weight of the evidence. Whether it is CCTV evidence, mobile phone video or a sequence of images, the software used to review that evidence can alter the viewer’s interpretation. It could be that the player drops or misses frames. The player could present the video too dark, or too light. The player could change the shape and size of the image or video, resulting in objects appearing smaller or larger. Many surveillance system players alter the image to make it look better, even though that is not what was originally recorded scary, but true. Again, you may initially think I am exaggerating here. In 2015, a conviction of Indecent Assault was overturned at the Court of Appeal. Mr Mohammed Islam was earlier convicted at Flintshire Magistrates Court, where a CCTV image of a vehicle, alleged to be his, was used as evidence. After analysis and enhancement, it was proved not to be his vehicle and his conviction quashed. Mr Islam’s lawyer, Adam Antoszkiw, later stated the crucial evidence was not properly examined by police because of financial constraints. Multimedia evidence, especially CCTV or low-quality mobile phone footage must be handled with care. When someone asks, “send me a shot of the car, from the CCTV”, you need to trust that the CCTV evidence was acquired correctly to start with, that the processes involved in managing that digital evidence have not altered it in any way, and then, that the image was extracted from the video in a

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manner that can be relied upon. Image integrity is key, which means that corners must stop being cut for the sake of ease or speed. I remember a time when a colleague of higher rank approached me, and shared his frustrations with CCTV acquisition. Let me explain. Of all video evidence, the most common is that from CCTV. It also causes the most technical difficulty. The reason behind this is that the industry is not regulated to ensure that the material captured is suitable for the purpose. I know – quite unbelievable really. As a result, we have systems that capture and retain information in a way that may not be understandable. The company does not even have to tell us. They can store the visual data, the timing data and, becoming increasingly popular, the audio data, using technologies that are secret, closed or proprietary. It’s a bit like having DNA evidence, but no one being able to understand it because the method to interpret the data has been kept secret. The proprietary and unstandardised method to capture, store and export CCTV has meant that many forces started to invest in dedicated staff to acquire CCTV, just like a Crime Scene Investigator. This was great, but then the cuts started to kick in, and guess what? That investment stopped. So, back to the senior officer, I was being asked if there was a black box to magically get the evidence from CCTV systems. The explanation took a few cups of coffee, but suffice to say that although many people were pushing and developing products – each one had its limitations. It came back, again, to the answer: if you want the actual, best evidence, you can’t cut

corners. Send someone with the right knowledge and the correct equipment. To understand the extent of this problem, look how many images end up in the legal system that are purely a mobile phone snap of a CCTV monitor. They have not known how to extract the native evidence, they have not been able to call upon the services of a CCTV recovery or retrieval team. They cut a corner and simply record the monitor with their iPhone. Not exactly best evidence! Does the native evidence ever actually get recovered – who knows? There is one caveat here: major incident and fast, real-time suspect recognition. Grabbing that first shot and getting it out to the press have enabled several terrorists to be recognised and quickly located. However, in each case, the native evidence has been obtained afterwards to ensure integrity. Multimedia can be copied, pasted, cropped, resaved and changed a billion different ways. So, when the final video arrives, can you clearly understand how it was created? I don’t mean with what software, I’m talking about its history. Let’s work backwards from a video compilation that you may have received. The compilation shows the accused / defendant / suspect from three locations over a period of time. It’s a standard video file and you can play it in Windows Media Player. (Hopefully you are not still getting Video DVD’s, as there is another world of pain associated with those, but let’s not go there now!). That compilation has been created. It’s a presentation format. It is not the original evidence. Each premise would likely have had a different system. There would, probably, have been other cameras. It’s also likely that there would have been more footage obtained.

added and some things get lost. As a result, the meaning can change. Everything from a weapon, a licence plate, a mark, a scar: if they are being used as part of the evidence, I must ensure that I can rely on how that image was created. I may need to look at other videos or images not related to the case but assist immensely in the integrity stage of comparing and contrasting data to ensure that I understand the generation of the file. For many years I used several different pieces of software throughout the analysis chain. I knew the limitations of each and understood when to stop and reconsider my workflow. If that is not done, if people continue to cut corners and do not handle the multimedia with care, evidence will either be lost, misinterpreted, or used incorrectly.

When I receive evidence to be analysed, enhanced or compared, over 50% of initial submissions are not the original evidence. This is vitally important for integrity, authenticity, and for any subsequent work required to restore or enhance footage.

I never enjoyed using many applications. I found the writing up of my workflow between each one too time consuming and, in many cases, quite complicated. Some software would deal with time, some would deal with total frames. Ensuring the frame counts matched the timing, and vice versa, could often be a little tricky.

Working on a pre-processed image or video is like reading a statement with some of the words in a different language. During the translate stage, some things get

Shortly before the end of the Forensic Video Unit (there are those cuts again), I started to take an interest in a product by Amped Software. Amped FIVE, Forensic

Image and Video Enhancement, wrapped up many of the challenges I faced into the single application I had been looking for. What was even better, was that they wanted to implement many of the ideas and workflows that I had developed over the years directly into the software. You can understand why then, when I had to leave the Police Service after the closure of the unit, I jumped at the chance to work with the Amped Software team. The software aligns with my own beliefs on video and image analysis - using science to ensure what can be done, is capable of being done. At the end of the day though, my part in an investigation is just a small cog in a large wheel. I must rely on many other people, and trust that they have done everything correctly and the video is what they tell me. If it’s not, and I pause to ask more questions – it just slows that wheel down. Although I must create further ‘presentation’ material, there is a clear path back to the original exhibit. The Criminal Justice System in the UK is at breaking point. The disclosure of digital evidence, which includes CCTV and digital multimedia, is daily headline news. If the material is handled with care, using diligence and competency, then there shouldn’t be a problem. If corners are cut then, well, that’s when it can hit the fan.

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How to sharpen your presentation skills By Douglas McPherson, Director, Size 10½ Boots and author of The Visible Lawyer and Package, Position, Profit

Whether you are asked to speak at one of the seminars your Chambers is running, at an industry event relevant to your practice or at a training session your clerks have organised at the offices of one of your most important instructing solicitors, if you’re going to win work from your efforts, you need to make an instant impact.

1. To engage the audience 2. To leave the audience thinking “that’s someone I want to work with” And before we go any further, let me underline there is no coincidence that ‘showing just how deep into the detail of the particular point of law you can delve into’ isn’t on that list. That is never the point of presenting. The good news is as with all things related to marketing and business development, there is a process that can be learned. Better still, as far too many barristers still refuse to acknowledge there is a need let alone a way to improve their presentations, if you take this advice you will instantly stand out from the crowd. And if you stand out, you will find new contacts, new conversations and new opportunities almost immediately.

The only problem is, presenting well, requires a very different set of skills to advocacy.

The first thing you need to do is change your mind-set.

In our experience, the most common reason why barristers fail to make the most of their speaking slots is there is a nervousness around experimenting with different and, dare I say, more modern ways to present themselves and their material. As a result the talks delivered tend to be fairly generic and a bit predictable so fail to achieve the 2 main objectives of presenting:

As I said the aim is to leave a positive impression. This means success hinges on your ability to engage your audience, not on your ability to provide technical information. Although it will undoubtedly take a while to pull your content together, the truth is your audience will forget most of the information you share (irrespective of how well it’s delivered) but they won’t forget you.

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To make sure their memory is a positive one, here are a few things you can work on: 1 Start strong First impressions count for everything; people will form a view in the first 30 seconds and rarely budge from that position so make sure that if you are going to over-rehearse, over-plan or over-invest in any part of your presentation, it has to be the opening. 2 Be enthusiastic People are much more likely to believe what you say if you look like you believe what you are saying. Similarly people are much more likely to listen if you appear to be interested in the subject rather than just getting through it because you’ve been told to. 3 Vary your delivery Think back to presentations you’ve sat through. I am sure you will remember the speakers who droned on in a relentless monotone? And how did that make you feel? Exactly! Work on varying your intonation and try to use a few pauses for dramatic effect because it’ll keep your audience’s attention. 4 Look like your audience. ‘People buy from people they like’ is a popular cliché but did you know there’s more? The whole phrase is ‘people buy from people they like and people who are like them’. Make sure the way you present yourself matches your audience. If you’re talking to corporate

solicitors in the City, be super smart. If you’re talking to a media or creative audience, dress informally. And if you’re in any doubt as to the culture of the firm you’re talking to, ask your clerks so you get it right. 5 Think about your posture. Stand tall and put your shoulders back. It will give you a natural authority and instantly make you more credible to your audience. 6 Remember your NVC. Non-verbal communication is a key component of presenting. Smile, maintain eye-contact and try to use your hands (in a controlled way) for amplification. While these are tips that will improve the way you present, the true secret of engaging an audience lies as much with what you present as how you present. The trap many falls into is rushing into production without working out what they want to cover. Before you even consider opening PowerPoint, make sure you know what you want to achieve and what you want to happen after your talk. Knowing this will make it much easier for you to make sure what you want to happen does happen. When it comes to preparation, there are 3 steps: 1. Planning 2. Delivery 3. Follow Up 1. Preparation I have no doubt that throughout your career you have been spoon fed preparation clichés about preparing to fail and preparation preventing an unspeakable standard of performance. However, the truth is, the more time you invest in the preparation of your slides, the better the results you achieve will be. When it comes to planning the structure of your talk have a good think about:

What you want people to do after your talk Your talk is never “just a profile builder”; you want to make your audience to do something specific afterwards so there’s a better chance their next brief comes your way. Once you know what you want them to do (and that could be to arrange further training, to invite you for a coffee to discuss a particular point of law or to sign up for special report exploring the topic’s you presented in more detail) you must add – and apologies for the marketing-ism – a clear call-to-action so that they take that step. If you only take one point from this article, take this one. A call-to-action will help you take things forward naturally and that alone will improve the results your talks generate.

The make-up of your audience

and easier to remember.

Before you can plan what you want to say you need to know who will be attending, how many will be attending, and what approach (i.e. formal or informal and interactive or academic) they will expect. This insight affects everything from the content you include through to the way you structure and present that content.

How well your audience will understand your topic Do you pitch your talk for beginners or as a high level discussion as to the possible future development/application of your topic? Again this will inform your content the way you deliver it.

Your venue

•

Wherever you can, use images, schematics, charts and diagrams in place of loads of words.

•

Always keep your sentences short and make your font big.

This may all seem a bit daunting (particularly if you are used to traditional text heavy slides) but remember your slides are only a backdrop; they aren’t a substitute for you. If all you are doing is reading your slides, you don’t need to be there! Also, if all of the information is up on the wall behind you, that’s where your audience’s attention will be fixed. That will prevent you from connecting with them and maximising the likelihood your efforts will turn into new work.

Make sure you know about the projection facilities, whether you’ll need to bring your own laptop on the day or send slides in advance, how the room will be laid out and, most importantly what support you’ll have on the day. Having all of this sorted before you arrive will help put you more at ease.

2. Delivery

How much of an introduction do you need to give yourself?

While rehearsing is something else to fit into your busy schedule, it is vital. Rehearsal removes any glitches and the umms and aahs and will improve how confidently you present on the day and the more confident you appear, the more credible your audience will consider you to be.

Do you really have to share a detailed professional biography at the start of your talk? These intros can be dull so should be avoided if possible (especially if your audience already knows you and Chambers). If you are speaking to a new audience and need to introduce yourself, keep your CV short and relevant. Now you have all of this information to hand, you can start preparing your structure and your slides. When it comes to structuring your talk, less is always more. First, work out the 3 key messages you want people to take away from your talk (and keep to 3 as peoples’ ability to retain information from talks is very poor). You start by telling the audience what those 3 points are, go through the 3 points then conclude by reminding them what the 3 points were. If this approach makes you nervous, remember you can always provide more detail after you speak by email, in a hard-copy hand-out or – best of all – in closing offer more information for anyone who brings you their business card. With regards to your slides, remember these are designed to hold your audience’s attention, not to batter them into ocular submission so: •

•

Never cover a slide in text. Instead use a handful of words and a memorable image that will make the audience stop and think “what’s that got to do with anything?” It will better hold their attention. Bin the bullet points and use words in boxes; they’re easier on the eye

If you’re anything like me, you’ll already be exhausted by the time you’ve done your prep and produced your slides and notes. However, if your delivery isn’t strong, the time you’ve invested will be in vain.

Rehearsal will also make you much more familiar with your content which means you’ll be able to adhere to another golden rule – never hold your notes. Your primary objective is to engage your audience and holding notes hampers that for 2 reasons: •

If you are a little nervous, you will shake your documents and this will unsettle your audience or even suggest to them you are not 100% sure of what you are saying.

•

Looking at your notes will stop you from making eye-contact with your audience; you need that eye contact if you’re going to build any sort of connection.

On the subject of barriers, the other one to lose is the lectern. Standing at a lectern separates you from your audience and again makes it harder for you to engage people. Have the confidence to step forward and speak to your audience rather than at them. With regards to your physical delivery we have already looked at things like enthusiasm, intonation and posture earlier in the article. However, as holding your audience’s attention is absolutely pivotal to your success, here are a few other things you can try: • • • •

Experiment with adding other media like video Have breaks and break-outs Involve the audience via questions and exercises Tell stories.

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Stories add a lot to a presentation. They aren’t just more interesting and more contextual; they also allow you show your personality. This is crucial because a personal connection will make people more likely to want to continue your conversation after your talk. And, because when you tell stories you are just retelling something you know well, you can recall the detail without having to look at the screen behind you. Again this makes it much easier for you to strengthen your connection with your audience. And lastly, always keep your handouts back until after your talk, never give them out before. If you provide hand-outs before you speak people will naturally start reading through them rather than listen to you. Keeping them back until after the talk also gives you the first natural opportunity to... 3. Follow up If you have kept your material back you have your first follow up in the bag:

“I have a PDF that provides more detail on all the points we’ve covered today. If you’d like a copy please give me a copy of your card before you leave and I’ll email it over.” I am willing to bet the majority of those in attendance will leave you a card.

Once you have the card make sure you send the material (not following through on a promise will be remembered) and always send it from your account; it’s you that met them not your clerks so if you outsource such a simple task, it’ll be received negatively. Then Linkedin with your new contacts. Even if your diary precludes you from any other form of follow up, the updates and articles you share via LinkedIn will help you stay visible. If you have set your own objectives during the planning stage, you will know what you want to happen after your talk. You will have included a call-to-action to make sure that next step happens whether that next step is more training, exclusive written content or some face-to-face time with you. I do understand the follow up is going to be the most ‘salesy’ (and, therefore, most uncomfortable) part of the process so here are a few tips to make it a little easier: •

Suggest small, easy ‘baby steps’ rather than forcing big commitments; provide as many options as possible and make all your suggestions or instructions clear.

•

Make sure what you suggest isn’t just the same run of the mill, tick box offer that everyone makes but is something that’ll actually deliver

value to your new contacts. •

Make sure all new names are added to Chambers’ marketing database so they continue to receive a wider range of communications (without you having to do anything).

And always remember that for a solicitor instructing counsel is largely about timing. It is massively unlikely your talk will coincide exactly with their need for your services. Your follow up has to be based upon ongoing contact so you stay on a potential instructing solicitors’ radar and then, when the time is right, they think of you, not a competitor. One presentation in isolation won’t do that. A successful presentation is only the first step in a campaign which is why the follow up has to be considered an essential part of your preparation, not an optional add-on.

Douglas McPherson, Director, Size 10½ Boots and author of The Visible Lawyer and Package, Position, Profit 29 Bridgford Road, West Bridgford, Nottingham, NG2 6AU 5 Chancery Lane, London, EC4A 1BL t: 077865 40191 e: douglas@tenandahalf.co.uk w: www.tenandahalf.co.uk

Proportionality Update “The proportionality rules now guide every detailed or summary assessment of costs on the standard basis. It will no longer be possible for successful parties to recover the absurd levels of costs which previously caused disquiet.” So said Sir Rupert Jackson in his 2016 book ‘’The Reform of Civil Litigation’ at paragraph 3-044. By John Brown, Member of the Costs team at the Forum of Insurance Lawyers and Director at Acumension If only things were so straightforward. Nearly 5 years on from the introduction of the new proportionality test, we are none the wiser as to its proper application. The black letter of the law provides at CPR 44.3 (5): Costs incurred are proportionate if they bear a reasonable relationship to (a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue in the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party; and (e) any wider factors involved in the

proceedings, such as reputation or public importance.” There, in around 60 words is the essence of the test, wrapped up in 5 factors. Given what a profound difference the new test was intended to make one might reasonably ask why more detailed guidance was not given. Sir Rupert resisted a Practice Direction on proportionality because he was convinced that it would provoke satellite litigation “...lawyers leave no stone unturned when it comes to arguing about costs” he opined in one lecture. His stance was supported by Lord

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Neuberger MR who in the 15th implementation lecture went so far as to describe detailed guidance as “positively dangerous.” Oddly, he thought some satellite litigation was necessary “while the courts work out the Law.” Well, to date, the courts have done no such thing. What do we know? At first instance, in BNM V MGN Ltd the Senior Costs Judge dealing with a £241,817 bill of costs, assessed ‘reasonable’ costs to be £167,389. He then proceeded to slash that sum by half, to arrive at what he considered to be a ‘proportionate’ sum of £83,964. In his book mentioned above, Sir

Rupert plainly thought that the Senior Costs Judge’s decision in BNM was correct. At paragraph 3-033 he said, without a hint of criticism, that the new test could constrain the court “to cut down substantially the costs which the receiving party reasonably incurred in order to ‘win’ the case.” When BNM v MGN Ltd [2017] EWCA Civ 1767 was appealed, it was hoped the Court of Appeal might take the opportunity to explain all. It proved a massive disappointment. Whilst the Court of Appeal resolved the discrete issue of whether under CPR 48.2 (transitional provision in relation to pre-commencement funding arrangement cases) additional liabilities incurred on or after 1st April 2013 are subject to the old or new proportionality test ….. its decision was that the ‘old’ test applies (contrary to Master Gordon-Saker’s original decision), its judgment entirely failed to give any wider guidance on how the new test should be applied. A few weeks later, the Court of Appeal ruled in Peterborough & Stamford Hospitals NHS Trust v McMenemy [2017] EWCA 1941 (Civ) that the ‘new’ more robust proportionality test in CPR 44.3(2) should apply to post LASPO ATE premiums in clinical negligence claims. Paying parties can draw some relief in budgeted claims from Harrison v University Hospitals Coventry & Warwickshire NHS Trust [2017] EWCA Civ 792. At paragraph 52, it was said that after incurred costs have been determined the Costs Judge upon combining those costs with the budgeted amount, will “ultimately have to look at matters in the round and consider whether the resulting aggregate figure is proportionate, having regard to CPR 44.3 (2)( a) and (5): a further potential safeguard, therefore, for the paying party.“ Receiving parties have bitterly complained, saying that since proportionality is supposed to be an integral part of the costs management hearing it exposes them to the risk of a double deduction. However, incurred costs aren’t dealt with at the costs management hearing, it would be naïve to believe that costs budgets for future estimated costs are always set at proportionate sums, and given proportionality is now enshrined in the ‘Overriding Objective,’ it is no surprise that the proposed grand total should be subject to final approval. Some seeking to maximise their costs invoke Kazakhstan Kagary Plc v Zhunus [2015] EWHC 404 (Comm), where Mr Justice Leggatt expressed the view that proportionate costs equates to the minimum reasonable spend to resolve the claim. The blunt rebuttal is that this flies in the face of CPR 44.3 (2) which states; ”Where the amount of costs is to be assessed on the standard basis, the court

will – (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; …” To spend the minimum necessary would satisfy the reasonableness test but does not necessarily satisfy the primary proportionality requirement. Furthermore, the case involved vast sums of money, far removed from commonplace claims. At first instance, in Rezek-Clarke v Moorfields Eye Hospital NHS Foundation Trust [2017] EWHC B5 (Costs) (17 February 2017) the general point was that in cases which are evidently of modest value, the claimant must at the outset plan how the matter can be conducted at modest expense. The claimant was unable to produce an action plan and suffered the costs consequences. Master Simons was assessing legal costs in a case that settled for damages of £3,250. It was never worth more than £5,000. The £72,320 bill of costs was slashed to £26,404. The DAS ATE premium of £31,976 was reduced to just £2,120. In Hobbs v Guy’s and St Thomas NHS Foundation Trust [2015] EWHC B20 (Costs), Master O’Hare disallowed the costs of three items in a bill, which appeared with the benefit of hindsight to be disproportionate to the true value of the claim, finding that whilst it was reasonable for the claimant’s solicitors to incur the costs, it would be “unfair” to expect the defendant to pay for them. Claimants can seek to evade proportionality by securing costs upon the indemnity basis. The obvious route is by way of a good Part 36 offer. It should also be remembered that a costs budget is predicated on ‘standard basis’ costs, so CPR 3.18 falls away insofar as one is calculating costs under a different mechanism. Part 36 offers must obviously be scrutinised with care. Claimants also seek to maximise costs by raising the conduct of the paying party which is one of the five explicit factors in the proportionality test. For example, the failure to respond to a suggestion of ADR is today assumed to be in itself unreasonable, PGF V OMFS (2013) EWCA Civ 1288 refers. Meanwhile, an interesting prospect has arisen. On 21st November 2017, the Supreme Court heard Barton v Wright Hassall. One ground of appeal was that the costs awarded below were unreasonably high. It is just possible that the Supreme Court might express a view on proportionality. Further satellite litigation will inevitably follow until the Rules Committee, the Court of Appeal or Supreme Court ‘grasps the nettle’ and gives much needed guidance on how the new proportionality test should be applied.

It is hoped that by the end of 2018 some long overdue clarity will be provided. We shall see! On a different note, recent years have seen something of a consolidation in the legal profession. LASPO abolished the right of lawyers to enter into Conditional Fee Agreements (CFAs) with claimants, where they could recover success fees of up to 100% against defendants (subject to a few exceptions). Following 1st April 2013, in thousands of cases where various law firms had transferred a claimant’s claim to a new law firm, the firms agreed to ‘assign’ the pre LASPO CFA which was entered into under the old rules, in an effort to allow the new law firm to recover costs in line with the terms of the original pre LASPO CFA, so that a success fee would continue to be recoverable on lawyer’s fees incurred on or after 1st April 2013. Paying parties unsurprisingly were aggrieved by this practice, which many considered would have the effect of allowing solicitors firms to circumvent the Jackson reforms. In Budana v The Leeds Teaching Hospital NHS Trust [2017] EWCA Civ 1980, the paying party contended it was not legally possible to assign a CFA, that the transfer was in fact a novation, and therefore upon transfer the second law firm would be entering into a new CFA which would be subject to the new LASPO rules. The Court of Appeal agreed by a majority of 2:1 that the transfer was indeed a novation, but then held in a policy soaked judgment that by adopting a ‘broad’ interpretation of the transitional provisions (s.44 LASPO) a pre LASPO CFA novated post LASPO should continue to operate as a pre LASPO CFA and cover work done for the entirety of the case. Whilst the new proportionality test remains a nebulous concept, at least Budana has given long awaited certainty on this issue.

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Appeals on Part 36 Acceptance in Fixed Costs Cases By Matthew Hoe member of the Costs Sector Focus

Team at the Forum of Insurance Lawyers

The Court of Appeal has conjoined appeals in Hislop v Perde and Kaur v Committee for the time being of Ramgarhia Board Leicester and expedited them for early hearing in June 2018. The issue Many practitioners will be familiar with this issue which has been one of the most frequently occurring and hotly contested costs points over the last eighteen months. It affects the very many claims that start under the RTA or EL/PL Protocols, but then exit before settlement. Where that settlement is reached by the defendant accepting a claimant’s Part 36 offer after the expiry of its relevant period, claimants have argued that they should get something more than the fixed costs provided by CPR 45 Section IIIA. Generally they have sought costs on the indemnity basis. Defendants say fixed costs still apply down to the date of acceptance. The cases have turned on the construction of CPR 36.13(4) and (5), and those rules’ interaction with CPR 45 Section IIIA. It is an issue that hangs on the coat-tails of Broadhurst v Tan [2016] 1 WLR 1928, in which the Court of Appeal held that where a claimant beats his Part 36 offer at trial, he gets fixed costs down to the end of the offer’s relevant period plus costs on the indemnity basis after the relevant period as provided by CPR 36.17(4), rather than the fixed costs over

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“At last, the Court of Appeal is going to settle the costs argument about the consequences of accepting a Part 36 offer after its relevant period in a fixed costs case”

that period provided by CPR 45 Section IIIA. So far The case that marked the start of this argument was Sutherland v Khan in April 2016. In a widely reported case, Regional Costs Judge Besford decided that the claimant was entitled to indemnity costs after the relevant period. He considered there had been a sea change since Mitchell and Denton. Claimants seized on his judgment, beginning a wave of copycat applications. Results differed across County Court first instance hearings, but generally claimants were unsuccessful and got only fixed costs down to the date of acceptance. Defendants cited the High Court decision in Fitzpatrick v Tyco Fire, which held there was no presumption of indemnity costs on late acceptance, and that the normal order was for standard basis costs (it pre-dated the fixed costs regime in Section IIIA, and would not have been a fixed costs claim). Further, Excelsior v Salisbury Hammer Aspden & Johnson was cited as authority that mere late acceptance did not justify indemnity costs and something ‘out of the norm’ was required. The argument that indemnity costs applied automatically quickly lost favour. Unlike CPR 36.17, CPR 36.13 makes no mention of indemnity costs. It deals only with the incidence of costs before and after the relevant period, and saying

nothing about the basis of assessment or even whether the costs are fixed or assessed. Circuit level decisions There were four circuit level appeal decisions and one first instance circuit level decision which gained press coverage. These arose from applications for indemnity costs following late acceptance. None of the circuit judges allowed indemnity costs. However, the judges differed on the costs to allow after the relevant period. Two allowed costs assessed on the standard basis, and the other three allowed fixed costs in accordance with Section IIIA (fixed costs were allowed in all cases down to the end of the relevant period). Richard v Wakefield Council. His Honour Judge Gosnell in Leeds allowed standard basis costs, saying ‘It does not seem unfair to me that the defendant should compensate the claimant in this way and it is not a windfall to the claimant in the true sense of that term.’ The judgment does not contain any reasoning on why CPR 36.13(4) and (5) result in fixed costs down to the end of the relevant period but assessed costs thereafter. The reasoning instead sets out what the judge considers to be fair. Anderson v Ladler & Aviva. His Honour Judge Gargan in Newcastle allowed fixed costs throughout because of a concession by the claimant. He said: ‘The parties agree that if the court makes an order for costs to be assessed on a standard basis in a former RTA Protocol case the claimant will only recover fixed costs.’ Many will be familiar with that practice; it is common to conclude claims with an unremarkable order for detailed assessment on the standard basis, and to sort out the fixed costs at the quantification stage – it saves the need for ‘magic’ words for fixed costs to apply. This reasoning and practice probably developed out of Solomon v Cromwell [2011] 1 WLR 1048, in which the Court of Appeal held that a general right to costs on the standard basis arising on acceptance under Part 36 gave way to the specific rules for fixed recoverable costs in CPR 45 Section II. The Court of Appeal may confirm along the way in Hislop whether a more specific form of order is required. McKeown v Venton. His Honour Judge Graham Wood QC sitting with Regional Costs Judge Jenkinson as assessor in Liverpool said Part 36 did not spell out that fixed costs applied because ‘it

was within the specific contemplation of those drafting that CPR Part 45 contained a sufficiently clear and concise matrix of applicable costs to enable the claimant, whose claim was brought to an end by the defendant’s acceptance (whenever that might be) to determine easily the costs entitlement under the appropriate tables.’ Hislop v Perde. In this case now proceeding to appeal, Her Honour Judge Walden-Smith in Central London said that on late acceptance: ‘costs will be fixed within the relevant period and the court will make an order as to costs if those costs are not agreed between the parties and the “offeree [either Claimant or Defendant] will be liable for the offeror’s costs [either Defendant or Claimant] for the period from the expiry of the relevant period until date of acceptance.” Whether those costs are standard or indemnity is a matter for the discretion of the judge.’ It is not clear from the judgment what in the rules applies fixed costs before the expiry of the relevant period but not after. Parsa v Smith. In a comprehensive judgment, His Honour Judge Tindall in Birmingham held that the specific provisions in Section IIIA applied and said ‘as “costs” in CPR 36.13(5) can either mean assessed costs or fixed costs, and CPR 36.13(3) does not require costs under CPR 36.13(5) to be assessed on the standard basis, and CPR 36.13(5) does not distinguish between the basis of “costs” in (a) and (b), the logical interpretation of CPR 36.13(5) in a case to which fixed costs applies under CPR 45.29A/B (as here), is that “costs” in CPR 36.13(5) means “fixed costs”.’ There is an appeal pending before the High Court, in which the claimant seeks a leapfrog to join Hislop and Kaur, although with the expedition in those appeal this case may be too late to join them. Regional Costs Judge Besford has also changed his views. In Whalley v Advantage Insurance, he allowed only fixed costs, holding that there must be exceptional circumstances or conduct ‘out of the norm’ per the Excelsior case to depart from fixed costs. In a related development, Sir Rupert Jackson in his report on fixed costs addressed consequences of a claimant beating his offer at trial (he prefers a percentage uplift), but did not suggest any further provision for late acceptance. That may mean he did not consider it necessary or appropriate, or may simply be because there was no case such as Broadhurst v Tan that he had to confront.

The issues for the Court of Appeal As is apparent from the circuit level decisions, the main issue for the Court of Appeal is whether a claimant should get standard basis costs or fixed costs after the relevant period. More specifically, is there any discretion in CPR 36.13 to depart from fixed costs? At present, Hislop is a platform to decide whether costs after the relevant period are fixed or should be assessed on the standard or indemnity basis. The claim for indemnity costs has been renewed by way of a respondent’s notice in which permission is sought to make that argument. The appellant’s main argument is that the court has no discretion to depart from fixed costs other than as stated expressly in the rules (e.g. where there are exceptional circumstances). Alternatively, if there is discretion to depart from fixed costs the court should only do so where indemnity basis costs are justified. The issues in Kaur are slightly different. The claimant made a Part 36 offer which was not accepted within its relevant period. Later in the claim, when new information came to light, the claim increased in value. The defendant made a Part 36 offer for a greater sum which was accepted by the claimant within its relevant period. The judge allowed costs on the standard basis after the relevant period of the claimant’s offer under the exceptional circumstances rules. The court will decide whether non-acceptance of a lesser offer is an exceptional circumstance, or whether only fixed costs should be allowed. If the court decides fixed costs apply in these cases that is all the clarity required. If the court decides that costs should be assessed on the standard or indemnity basis that may be addressed in the expansion of fixed costs. Just as Sir Rupert Jackson has proposed a percentage uplift to simplify the Broadhurst outcome, the outcome could be simplified by way of a (lesser?) percentage uplift on the fixed costs. The appeal is fixed on 20 and 21 June 2018.

Matthew Hoe member of the Costs Sector Focus Team at the Forum of Insurance Lawyers and Director of Dispute Resolution at Taylor Rose TTKW

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Assisting the Young Bar

Artificial intelligence in Chambers Part 2 By Jonathan Maskew, BD Director – Clerksroom Direct

e are all living in an increasingly digital environment and Artificial Intelligence (AI) is a growth industry and changing the way many are now undertaking their business, with Chabot’s, driven by AI becoming a viable customer service channel creating multiple positives for both businesses and their clients. Chabot’s are just one type of AI technology being used to establish or reinforce company brands, so why should chambers be any different in that approach?

Initiatives supporting online courts are already being introduced as part of the route to minimise delay and reduce costs. There are reservations of course and change management within the chambers environment is often difficult but the bar have always adapted well to change and although the online courts will disrupt the traditional ways and methods many are familiar with, presenting new challenges, it will inevitably create new opportunities for work.

The Clerks and support teams in Chambers have and continue to drive business for their members and in particular for the young bar to ensure their early days in the profession are well supported in order to secure improved succession planning and to retain the very best talent.

With all change comes disruption, however, currently there are many people who are priced out or often deterred from seeking legal advice or guidance at an early stage due to the very thought of the costs associated and involved in taking legal advice, The route for much more prevention rather than cure will create new opportunities and new work streams for the young bar.

Developments happening with the online courts, particularly with the smaller claims and the modernisation initiative is driving change and the need to understand the opportunity, challenges and ultimately capture and secure a growing slice of this significant opportunity for the benefit of the young bar is paramount.

This rapidly changing landscape is acknowledged by Rick Hoyle, Chairman of the Young Bar who recently commented that we need to; “Prepare young barristers for the changing legal landscape, and help improve access to the profession for the barristers of the future …… The aim is to encourage young barristers to think positively and creatively about how to

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generate their own opportunities, raise their profiles and forge new contacts in a variety of industries. Whilst these messages are echoed across the country in all chambers there needs to be a wider understanding and an acknowledgment that AI is disrupting and transforming every industry it touches, from business operations and efficiency to innovative means of customer service, medical research breakthroughs, smarter transport systems and driverless cars, clever advertising campaigns, robot lawyers, robot clerks and much more. There is a simple message for those in business who continue to be unwilling to adopt or ignore AI, they will simply get left behind and struggle to survive to compete in this environment. One recent development featured in the Barrister Magazine (October 2017) is the introduction of the World’s first Robot AI junior clerk Billy Bot. Since the last edition, Billy has been learning rather very quickly, and becoming a widely acknowledged and accepted route as a chatbot for barristers with the clever integration of artificial intelligence into chambers. He is improving the services and speed

in which chambers offers their services to both professional and public access clients rapidly and is now managing up to 100 new instructions a day, agreeing fees, booking barristers, checking for conflicts and even making the coffee via the clever use of API links.

bar and has also very recently (as at 01 Dec 2017, currently subject to a NDA) secured a major client law firm to automate all their cases on a national scale, the majority of which will be undertaken by the junior members of chambers.

Linked to chambers case management and booking systems, online enquiries are fed straight into the system, which sends a recommendation to a human clerk on what barrister should be instructed.

Billy is Clerksroom’s brand proposition driving the chambers’ public profile and client engagement and typically, chambers, or any legal services business, would have to fight hard for the level of engagement that Billy has achieved in just a few months and is acknowledged as proving a fast route to its services.

For telephone enquiries, the clerk inputs the data required by Billy and again offers a recommendation. The clever automation has 1.6bn combinations, considering factors such as barrister, practice area, type of hearing and location before coming to its recommendation. On average Billy can save eight minutes per booking by undertaking tasks that the clerk would otherwise have done, and in the Clerksroom environment booking in 1,500 cases a month, this has meant a saving of 200 hours a month and increasing operational efficiency allowing the allocation of time to other vital tasks such as supporting new members of chambers and the young bar. Billy is also seeking to support the level of work needed to support the young

Clerksroom has a clear strategy and is about smarter working and broader communication, and moving beyond leveraging data to power innovation and ‘reinvent’ legal service design. Focusing on the human element of the interaction between people and (AI) processes enhances the experience of people involved in different stages of legal service delivery and in turn assists the young bar along their journey.

“As machines become smarter, consumers will expect flawless customer service around the clock, and by 2025 AI will drive 95% of all customer interactions, with consumers unable to differentiate bots from human workers via online chats as well

as over the phone.” (Servion, 2017) The clever combination of Human and Bot will assist to attract, retain and ultimately drive the business of chambers forward to participate at the very highest level across the globe. For further information you can visit the Billy Bot website; www.billybot. co.uk And follow him on twitter @ BillyBotClerk If you would like to know more, comment on any of the issues above or require further details then please contact Jonathan Maskew via email ; Jonathan.maskew@clerksroomdirect. com Jonathan Maskew BD Director – Clerksroom Direct Author; Jonathan Maskew who has been involved in the chambers environment for over 25 years and is currently providing consultancy skills as Business Development Manager with the Clerksroom team. For further information with regards to Clerksroom Direct then please visit the website; www.clerksroomdirect.com

New Silks - A pension annual allowance window of opportunity? By Andrew McErlean, Chartered Financial Planner, Saunderson House

hen the latest cadre of the bar took Silk at the ceremony at Westminster Hall on 26 February, probably the last thing on their mind was the potential benefit to their pension annual allowance position.

This article intends to demonstrate how a temporary reduction in earnings in the year(s) immediately following taking Silk could provide a window of opportunity to make significant pension contribution(s). Most individuals in the legal profession expect to see their earnings increase in a linear fashion over the course of their career. While this is broadly true for members of the Bar, we have observed with our clients that the transition from Junior Counsel to Queens Counsel often involves a temporary dip in earnings, as a consequence of (i) the time commitment in the application process to take Silk and (ii) the move from being an established Junior to being a relatively inexperienced Silk trying to establish oneself at this new level.

Why is this an annual allowance opportunity? The annual pension contribution limit for UK individuals is broadly 100% of earnings up to a maximum of £40,000 (gross). However, changes introduced in the 2016/17 tax year mean that for those with earnings above £150,000 (gross) in a tax year, the amount they can pay into pensions is reduced by £1 for every £2 they earn above £150,000, down to a minimum of £10,000, as summarised below:

Adjusted Income (Gross)

Annual Pension Allowance (Gross)

£150,000

£40,000

£170,000

£30,000

£190,000

£20,000

£210,000 and above

£10,000

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It is important to note that the words ‘adjusted income’ encompass earnings from all sources, for example rental income from a property, income from stocks or shares (not within an ISA), or even pension contributions made by an employer, for those barristers who combine their practice with a fixed employment contract. Therefore, a Junior who has been earning in excess of £210,000 (gross) for the past few years will have had their annual pension contribution allowance reduced to £10,000 (gross) under the new rules. However, where their transition to Silk has led to a reduction in earnings below the £210,000 threshold, their pension annual allowance will be increased, as illustrated in the above table. Why should I use pensions for my long term savings? Despite a rather chequered history and a raft of legislative changes introduced since 2006 (perhaps incorrectly entitled the ‘pension simplification rules’), pensions remain one of the most tax efficient ways of saving for retirement. Investors receive tax relief at their marginal rate of income tax, meaning that for those with annual earnings in the £150,000+ bracket, every £100 invested in a pension ultimately costs them just £55. Added to this, funds held within the pension environment grow virtually free of all income and capital gains taxes and, importantly, are outside the estate of the individual concerned for inheritance tax purposes. On this last point, for many of our wealthier clients, pensions are now a very valuable estate planning tool. Very simply, the pension can be inherited tax free by nominated individual(s) if the pensioner dies before the age of 75, or at the recipients’ marginal rates of income tax if the pensioner dies after the age of 75. In the latter case, the recipients’ ability to draw the pension death benefits over a number of years, means that the effective rate of tax is likely to be below the 40% inheritance tax (IHT) threshold that other inherited assets may suffer. I have heard of ‘carry forward’ pension allowances. How does this interact with the above rules? Pension contribution allowances in the current tax year can also be boosted by carry forward of unused allowance from the three preceding tax years. For anyone with earnings in excess of £210,000 in the current and three previous tax years, their current year allowance could be as much as £100,000, as follows (assuming no pension contributions since 2013/14):

Tax Year Input

Annual Pension Allowance

2017/18

£10,000

2016/17

£10,000

2015/16

£40,000

2014/15

£40,000

Total

£100,000

* This must be used prior to 6 April 2018, or it disappears Important to note is that the ‘tax year input period’ calculation is not simply a case of what was paid into pensions during a tax year, as the input period did not necessarily align with the tax year before 9 July 2015. You may therefore need professional advice to calculate the

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exact allowance. Please also note, a contribution using the allowances of the three preceding tax years can only be made where an individual’s income in the 2017/18 tax year is at or above the total level of contribution being made, and where there was ‘active scheme membership’ in those previous tax years. The ‘active scheme membership’ requirement is simply met by, for example, having a pension in existence during those tax years, even if no contributions were made. This is something to be aware of and in many cases carry forward of unused pension contributions may have already been taken advantage of. This therefore makes the possibility of a larger single contribution, utilising allowances in the current tax year, even more valuable. Further, the compounding effect of a contribution made earlier rather than later with respect to a given retirement age makes the temporary dip in earnings all the more valuable. After a few years establishing themselves as QCs, most will find their earnings reverting to long term trend and the opportunity for a contribution above £10,000 ceasing. Other Considerations Financial planning has always been a balancing act between what is possible under current legislation (i.e. ‘what are the limits for tax relief purposes?’) and what is pragmatic (i.e. ‘what can I afford?’). This situation is no different. We find our clients at the bar can have high WIP balances, so if cash-flow is an issue, a sizeable lump sum pension contribution may be difficult. Likewise, many of the new cadre of Silks may well have children and thus educational costs could take priority. Similarly, if you have a large mortgage and an aversion to debt, you may well wish to prioritise paying down the mortgage overcommitting funds to your pension, despite the attractive tax benefits. Finally, an investor’s pension Lifetime Allowance position needs to be considered. If a substantial pension pot has already been accrued and it seems likely that the Lifetime Allowance may be breached, a contribution that will likely result in an excess fund above the Lifetime Allowance would almost entirely negate the benefit of the contribution. The taking of Silk at the Lord Chancellor’s ceremony is cause for celebration. It also might bring about a financial planning opportunity – a full consideration of your income and pension position with an appropriately qualified individual may at this time bring both peace of mind and great long-term benefits.

Andrew McErlean Chartered Financial Planner E: andrew.mcerlean@saundersonhouse.co.uk D: 020 7315 6563 Saunderson House Limited Financial consultants 1 Long Ln, London EC1A 9HF Tel: 020 7315 6500

A reduction in police numbers, low levels of detectives, and a rise in crime, particularly fraud what options are there for victims to see justice done? A private prosecution gives an outlet for those seeking justice when the state cannot assist, but this must be done correctly for this to be successful, and most importantly, in the interests of justice. The process of getting this right starts from the very outset, writes Simon Davison, Director of Investigations at AnotherDay.

ince 2010, a steady reduction in budgets has heavily affected UK policing, equating to a reduction of over 25% in real terms between 2010 and today. To cope with these cuts, police numbers are falling; in the same period, force staffing numbers reduced by around 12% - close to 17,000 front-line officers, with further cuts and losses being made. Reports indicate that there are a further £40 million in budget reductions to be achieved by 2020. These cuts have been exacerbated by cuts to the Crown Prosecution Service, Legal Aid, and other victim support services. Sadly, these budgetary cuts to the police have led to a reduction in the capability of the police to investigate and prosecute crime, due to a significant loss of experienced detectives. A recent report from Her Majesty’s Inspector of Constabulary (HMIC) declared the shortage of detectives and investigators a ‘national crisis’. The Metropolitan Police Service alone is reportedly 700 detectives short and are struggling to recruit new and talented officers into the Criminal Investigations Department (CID), and recently experienced detectives have been diverted to other units to lessen

the impact of these shortfalls. Being a detective used to be the aspiration of many police officers; sadly, now new officers are often reluctant to go through the process, due to the vast workload compared to uniform colleagues, extra study and lack of remuneration, and potentially highlevels of risk. New detectives should be trained by experienced detectives; however, given the limited time and resources, often new detectives are let loose on investigations alone at a very early stage. The government has put measures in place to try and tackle this problem, including recruiting officers directly into the CID from outside, but evidently there will be a bedding in period required as they gather experience, and this is surely a stopgap solution. The backdrop to this is the rise in serious and major incidents – tragedies such as terrorist attacks, national disasters and other high-profile enquiries quite correctly require additional resources; however, the pit is not bottomless, and money and officers are often diverted from elsewhere. Fraud and acquisitive crime, particularly against perceived wealthy companies, often falls to the bottom of the priority list and is often

not investigated or prosecuted by law enforcement agencies. If it is, often authorisation for forensic and digital examination is not authorised due to budgetary restraints. However, what may be perceived as a small fraud or perceived ‘victimless crime’, can have catastrophic consequences for businesses, both from a financial and reputational perspective. The victims of these crimes want justice done when they have been wronged, but often are up against the brick wall of bureaucracy, limited personnel and changing priorities. As a result, an increase in private criminal prosecutions has been seen over recent years. This option is an excellent potential avenue for victims of crime to seek justice, especially if their case is not investigated by the police, with the added benefit of removing some of the burden from state resources. However, this rise should be approached with caution; these prosecutions should only be conducted in a manner that bears the utmost scrutiny. It is absolutely right that any criminal prosecution be conducted openly, transparently and fairly, and in and a private prosecution is no exception.

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It could be argued by its nature a private prosecution should be able to withstand even greater scrutiny than that of a state-run prosecution. Any conviction arising from a private prosecution must be built on solid foundations and instigated correctly in the interests of justice, but also investigated, prosecuted and conducted in a professional, fair and open manner. This is vital to secure a safe conviction, but also to reduce the risk of cases being discontinued or taken to the court of appeal, and prevent the waste of time, resources and money to both the victim and the courts. Ultimately, if this system is abused, then there is the risk that this recourse is taken away permanently. This fairness and transparency begins from the very start of an investigation. Having an independent and impartial investigator, not affiliated with the client or lawyer and instructed from the outset is the best option to satisfy all sides in private prosecutions. This is beneficial in progressing the case, both in terms of cost and efficiency from the client’s perspective, but also to ensure a degree of separation between client and lawyer, removing any potential conflict of interest issues. Ultimately, the investigator and prosecuting lawyer are acting in the role of ministers of justice, and so having an investigator and lawyer working separately but towards the same goal, in a mirror image of the police and CPS, is the most efficient, effective and safe way to conduct a private prosecution with integrity. A state investigator is duty bound to investigate all reasonable lines of enquiry, both that lead towards and away from the guilt of the accused party. Without an independent investigator, often the ‘victim’ would conduct the investigation themselves, such as an audit, digital review or internal enquiries. It is easy to see why this could be deemed biased in a criminal court, with a risk of only evidential avenues that benefit the victim pursued, either deliberately or subconsciously. Clearly this is not an ideal situation, and in the interests of justice all avenues should be explored fully. Having a professional, independent investigator, with autonomy and discretion to investigate all reasonable lines of enquiry, would go a long way to dispelling any concern over the fairness of trial. As has been seen in several highprofile police investigations recently, several sexual assault cases have been discontinued, largely due to a lack of disclosure of key material that undermines the prosecution or assists the defence. It is highly doubtful that the officers in these cases were dishonest; more likely is that they either had a high workload and sufficient review of material

was not conducted; there was a lack of communication between officer and the CPS; or the officer lacked the knowledge and training around disclosure obligations. Evidently disclosure is a key part of any criminal investigation, and this is even more pertinent in a private rather than a state prosecution, where a completely open and transparent investigation is essential to avoiding any potential miscarriages of justice. This disclosure process begins at the very start of an investigation, which is likely to be initially conducted by the victim themselves, such as through a review of financial information, emails or internal interviews. Clearly the material generated from this is potentially relevant and should be managed as such. Having an independent, advanced-disclosure trained investigator managing the investigative process, fully compliant with CPIA, from the start of the investigation to the conclusion of trial provides continuity and minimises the risks of an unsafe conviction, while providing a degree of separation between the client and lawyer. This has the added benefit of preventing the legal team being bogged down with management and review of unused material, allowing them to focus on other key areas. An additional benefit in having independent investigators involved from the outset is the benefit of expertise. Former highly trained detectives from specialist police units have a wealth of experience in all facets of a criminal investigation and will ensure all material is gathered in a timely, efficient and proper manner. Police investigations should be conducted to a high standard; given the nature of prosecutions conducted privately then these should be conducted in the spirit of PACE, fully compliant with CPIA, and the standards should be equal to, if not higher, than the already extremely high standards set by British police. This training is of benefit to the smooth running of the investigation and allows expertise in the crucial areas of evidence gathering, such as interviewing witnesses, identifying and following up investigative angles, digital and forensic investigation, and the management of all the material obtained during the investigation. The completion of the case file by an independent party also allows the reviewing lawyer to impartially review the evidence obtained, correctly adhering to the Code for Crown Prosecutors in making effectively a charging decision. During ensuing legal proceedings, using an investigation team has the added benefit of allowing a degree of separation between the client, lawyer, and the judicial system. A good investigator can take responsibility

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for ongoing disclosure obligations, witness and exhibit management at trial, and giving live testimony as a pseudo ‘officer in the case’ to support the court in relation to the investigation process. This assists a smooth trial and removes any potential pitfalls, such as a key witnesses being involved in court proceedings, or a prosecution lawyer potentially having to give evidence. Ultimately, criminal prosecutions are an excellent recourse for victims to take in order to see justice done, when otherwise they may not have their voice heard due to a potential lack of state support. It is vital, however, that this process be conducted properly, professionally, fairly and correctly, and this process must be correct from the very outset of a criminal investigation and prosecution. If not, at best a case will be lost and the victim waste time, energy and money; at worst, attract negative publicity and reputational damage, costs awards against the prosecutor and their lawyer, and this avenue being removed altogether. In the interests of justice, let us make sure this is done correctly to help victims have their day in court.

Simon Davison is Director of Investigations at AnotherDay; a risk, security and investigations company based in London and the Middle East. Simon regularly supports lawyers, companies and victims of crime in the aftermath of an offence, managing their investigation to support a successful resolution. Before AnotherDay, Simon was a senior detective in the Flying Squad in the Metropolitan police, a specialist unit that investigates serious and organised crime and armed robbery. Simon spent five years in the unit, managing complex, high-risk and often covert firearms investigations, and won numerous commendations for these high-profile investigations. These included a commendation for the conviction of over a large organised crime group for ‘smash and grab’ robberies in London and the UK over a three year period; the conviction at the Old Bailey of a team of armed robbers who were also linked with a high profile and brutal murder; and the conviction of 17 individuals in a multi-handed trial, of a team who committed 130 serious offences across the country. Simon Davison Director of Investigations Cell (UK): +44 7921 666096 Tel (UK): +44 207 869 5147 Another Day Intelligence | Strategy | Capacity | Response www.another-day.com

Advocates for International Development Lawyers Eradicating Poverty

Why pro bono makes good business sense By Yasmin Batliwala, Chief Executive, Advocates for International Development For nearly 30 years, most of the large US law firms that comprise the Am Law 100 have published their figures showing how many pro bono hours their lawyers give on behalf of a range of good causes. American lawyers are acutely aware that pro bono is a professional responsibility, as demonstrated by their strong ongoing commitment to volunteering their services to meet the legal needs of a range of individuals and organisations. However, English law firms have generally been much less willing or adept at following their example, typically showing less commitment in aggregate than their US counterparts. So what about barristers: how do they address the challenge of giving something back to the community? Of course, many already do in different ways – motivated by personal choice and a sense of public duty. Yet there is very little in the way of systemic commitment of time, notwithstanding the best efforts of The Bar Pro Bono Unit, which helps to find pro bono legal assistance from volunteer barristers. The decision to join its ranks and give their time for free is made at a personal level rather than an institutional

one: providing legal advice or representation for free to those in need, by volunteering their skills in another capacity, such as giving careers advice in schools, acting as a trustee, or even coaching a student team for a mock trial competition. But of the 16000 practising barristers – of whom 1600 are QCs – just 350, or slightly over 2% are registered with The Bar Pro Bono Unit. There is therefore a strong argument to do something at a more institutional level to increase participation in pro bono activities. Adopting the model used by many of the biggest US law firms would provide a good benchmark for those at the Bar, invariably in a set of chambers with other barristers. The commitment US firms have shown has continued to grow over the years and is now fully embedded in their culture, and that of the attorneys, no matter what age. The US pro bono culture begins early - in law schools. Students from the 2016 law class performed over 2.2m hours of pro bono work last year, valued at more than $52m, according to figures compiled by the Association

of American Law Schools (AALS). The poll of every American Bar Association (ABA) accredited law school was the first nationwide student pro bono survey ever conducted. At present, English law schools boast of BPTC students having ‘access to an extensive range of pro bono projects.’ But perhaps it should go further still with those studying for the BPTC being mandated to do some pro bono work as part of the course rather than it remaining a purely voluntary activity. This would help engrain the culture of selflessly giving up one’s time for others – so much more precious and personal than just giving money to a friend’s charity run or sponsored bike ride because they are giving something of themselves. Once qualified as an attorney in the US, the ABA Model Rules of Professional Conduct state that “a lawyer should aspire to render at least 50 hours of pro bono public legal services per year” to persons of limited means or to organisations that support the needs of persons of limited means. Recent ABA figures show the average annual amount of pro bono service provided

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by each US attorney was 56.5 hours a year. No such data is compiled in the UK, but it seems unlikely that any English law firm could claim such figures for every one of its qualified lawyers. Given the 2% figure for those registered with the Bar’s pro bono unit, the average figure for barristers is probably much lower still. Why not suggest that every barrister should do, say two or three days a year, pro bono. So does this pro bono commitment adversely impact on law firm revenues? In a word, no. On the contrary, the Am Law 100 law firms grew their aggregate revenues by 4.3 percent in 2016. Their overall performance over the last five years has often outpaced many of their UK counterparts, both in revenue and profitability. When it comes to doing good business and doing pro bono work, the two are not therefore mutually exclusive. In fact, pro bono would seem to make good business sense as part of a firm’s culture. The same would surely apply at the Bar if each set of chambers required all barristers from junior tenant to senior silks to take part with a target set for every member.

bono work. Among other benefits, it suggests that a properly structured programme can significantly enhance a firm’s ability to demonstrate its level of commitment to pro bono work, nurture a firm-wide culture within a coherent policy and send a consistent message about its values. Exactly the same sort of methodical pro bono system could be applied to members of a barristers’ chambers, although this has not yet been advocated by the Bar Council. When the top 50 UK law firms saw their total revenues increased to £18.24bn in 2016, , up from £17.45bn in 2014-15 - an increase of 4.5 per cent - some lawyers might benefit from reading its content, and increase their commitment accordingly. The same, no doubt, applies at the top sets of barristers chambers, although again figures are not as readily available with estimates published by the Lawyer being exactly that: estimates.

There is further evidence to support this assertion. According to research published in 2016 by the TrustLaw Index of ProBono, an immediate contrast can be drawn between the US and UK firms operating in London. The top seven places for average pro bono hours per fee earner all went to US law firms: Arnold & Porter, Dechert, Latham & Watkins, Morrison & Foerster, Paul Hastings, Seyfarth Shaw, and Weil Gotshal & Manges. The pro bono contribution by each of these firms surpassed all the magic circle and silver circle firms – in some cases, by a considerable margin.

One of the seven US firms with the strongest pro bono commitment in London, Latham, saw its revenues increased in 2016 by 6.5 per cent to $2.82bn (£2.26bn). Its seventh consecutive year of fee income growth was also the most revenue ever generated by a law firm in a single financial year. Meanwhile its net profit grew by 8 per cent to $1.42bn (£1.14bn). That helped to drive Latham’s profit per equity partner (PEP) past the $3m mark for the first time, rising 5.3 per cent to $3.06m (£2.45m). Yet Latham lawyers also found time to be in the top league when it came to pro bono work. Excellent business sense from the highest grossing law firm in the world was matched an excellent commitment to pro bono.

Drawing on the success of the Australian Pro Bono Manual, The Law Society of England & Wales published a guide last September outlining why firms should have a plan for pro

Using data from Legal Week‘s UK Top 50 and The American Lawyer‘s Global 100, recent figures published by Legal Week go further: PEP growth at the US top 10 outpaces UK rivals by 50%

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over five years as earnings gap widens ran their headline story in November. Giving something back works. Perhaps there is a lesson here not just for magic circle law firms - Slaughter and May, Allen & Overy, Clifford Chance, Linklaters and Freshfields Bruckhaus Deringer - but also for Brick Court, Essex Court, One Essex Court, Fountain Court, Blackstone and a host of other leading sets of chambers. So how do the two go hand in hand? One obvious answer is that doing pro bono work delivers particularly important benefits to young lawyers that traditional work in barristers’ chambers does not. In short, it broadens their skillset and allows them to perfect their craft. More specifically, pro bono work can be good for their career and personal development in three different respects: it provides opportunities for direct interaction with a diverse range of people; it allows them to gain personal experience that would rarely be available from clientoriginated work; and it can expose them to a much broader range of advisory work than what’s typically on offer in conventional practice, especially in commercial, tax, IP or other specialist sets of chambers. The experience of US law firms shows that pro bono increases staff performance and higher billing, rather than decreasing them. In considering how to develop young barristers into QCs of the future, and shape them as fully rounded individuals who are able to deal with all manner of human client problems, a strong pro bono culture does indeed make good business sense for barristers’ chambers as it clearly does for US commercial law firms.

Yasmin Batliwala, Chief Executive, Advocates for International Development

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