The Bill of Middlesex by Benham Publishing Limited

contents PUBLISHER Benham Publishing 4th Floor, Orleans House, Edmund St, Liverpool, L3 9NG Tel: 0151 236 4141 Facsimile: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com

contents Contents

Officers for 2013-2014

Committee Members

local issues President’s Page

ADVERTISING AND FEATURES EDITOR Anna Woodhams DESIGN AND PRODUCTION Fern Badman ACCOUNTS Joanne Casey MEDIA No. 1310

The Royal Star & Garter Homes’ WW1 Centenary Battlefields Trek

Members Application

5 Reasons Why Inbound Marketing Beats Cold Calling Every Time

EDITOR Darrell Webb PUBLISHED November 2013 – © Bill of Middlesex Benham Publishing LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press. Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us. DISCLAIMER The Middlesex Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation. All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

Copy Deadlines 2013/14 February Issue May Issue August Issue November Issue

24th January 18th April 18th July 17th October

Anyone wishing to advertise or submit editorial for publication in the Bill of Middlesex please contact Anna Woodhams, before copy deadline. Email: anna@benhampublishing.com Tel: 0151 236 4141

The Bill of Middlesex

property Driving customer service

Electronic official searches - Risk reduction as standard

legal aid Obsessed with size?

book reviews BLACKSTONE’S GUIDE TO THE DEFAMATION ACT 2013

INSIDER DEALING - Law and Practice

family law Sole or primary carer for dependent relatives

professional issues How has your compliance journey been so far?

Set yourself apart from the competition as a qualified and competent will draftsman

Welcome to a very special partnership… Welcome Cottages and Dogs Trust

COLP and COFA: Compliance, risk and regulation

Combating Stress In The Workplace

Timely outsourcing guide helps law firms to work smarter

film FILM AND THE LAW No 21: Sophie Scholl: The young woman who stood up to the Nazis

probate Bernard Matthews – will construction and the Doctrine Election Food for thought for estate planning lawyers

finance Three ways to impress your bank manager

officers COMMITTEE MEMBERS

OFFICERS FOR 2013/2014 President: DARRELL WEBB Bolt Burdon Solicitors Providence House, Providence Place, Islington N1 0NT (020 7288 4795) (DX 122237 Upper Islington) e-mail: darrellwebb@boltburdon.co.uk Vice Presidents: GURMEET KHARAUD Fort & Co. Solicitors Saunders House, 52-53 The Mall, Ealing W5 3TA (020 170 8433) (DX 5119 Ealing) e-mail: gk@fortsolicitors.com ELISABETH VAN DER WEIT Hameed & Co. 4 Grand Parade, Forty Avenue, Wembley Park, HA9 9JS (020 8904 4900) e-mail: hameed@hameed.plus.com Honorary Secretary MAURICE GUYER Vickers & Co. 183 Uxbridge Road, Ealing W13 9AA (020 8579 2559) (DX 5104 Ealing) e-mail: mguyer@vickers-solicitors.co.uk Honorary Treasurer: NIRMALA CHANDRESENA Chands Solicitors 145 Cannonbury Avenue, Pinner, Middx HA5 1TR (020 8933 8332) (DX 48001 Rayners Lane) e-mail: n.chandrasena@btinternet.com Honorary Social Secretary: ROBERT DREPAUL Vickers & Co 183 Uxbridge Road, Ealing W13 9AA (020 82801095) (DX 5104 Ealing) e-mail: rdrepaul@vickers-solicitors.co.uk Honorary Membership Secretary: SUSAN SCOTT-HUNT Principal Lecturer in Law, Middlesex University The Burroughs, Hendon NW4 4BT (020 8411 6019) e-mail: s.scott-hunt@mdx.ac.uk Council Members for the Middlesex Area: Central & South Middlesex Michael Garson Kagan Moss 22 The Causeway, Teddington TW11 0HF (020 8977 6633) (DX 35250 Teddington) e-mail: Michael.garson@kaganmoss.co.uk North Middlesex Michael Singleton Singletons Austin Ryder 2 Crossfield Chambers, Gladbeck Way, Enfield EN2 7HT (020 8367 0387) (DX 90604 Enfield) e-mail: Michael.singleton@singletonsuk.com The Law Society Greater London Regional Office, The Law Society, 113 Chancery Lane, London WC2A 1PL (020 7316 5554) (DX 56 London/Chancery Lane) Regional Manager: Morag Goldfinch e-mail: morag.goldfinch@lawsociety.org.uk

Immediate Past President: SUSAN SCOTT-HUNT Principal Lecturer in Law, Middlesex University The Burroughs, Hendon NW4 4BT (020 8411 6019) e-mail: s.scott-hunt@mdx.ac.uk Alexis Ash of Iliffes Booth Bennett Solicitors Capital Court, 30 Windsor Street, Uxbridge UB8 1AB (08456 381 381) (DX 45105 Uxbridge) e-mail: alexis.ash@ibblaw.co.uk Dr Rebecca Bates of Brunel Law School, Brunel University Kingston Lane, Uxbridge UB8 3PH (01895 67909) e-mail: Rebecca.bates@brunel.ac.uk Robert Borwick of ABV Solicitors Kingshott Business Centre, 23 Clayton Road, Hayes UB3 1AN (0844 587 9996) (DX 44650 Hayes (Middlesex) e-mail: Robert.Borwick@ABVSolicitors.co.uk Professor Malcolm Davies Head of Ealing Law School University of West London St. Marys Road, Ealing W 5RF (020 8231 2226) e-mail: Malcolm.Davies@tvu.ac.uk Hardeep Dhillon of Desor & Co, 768 Uxbridge Road, Hayes, UB4 0RU (020 8569 0708) (DX 44657 Hayes 1 Middlesex) e-mail: hardeep@desorandco.co.uk Maralyn Hutchinson of Kagan Moss 22 The Causeway, Teddington, Middx TW11 0HF (020 8977 6633) (DX 35250 Teddington) e-mail: maralyn.hutchinson@kaganmoss.co.uk Andrew Lee of Hoffman-Bokaei Lithos House, 307 Finchley Road, London NW3 6EH (020 7433 2380) (DX38863 Swiss Cottage) e-mail: andrewlee6783@aol.com Vincent McGrath of Vickers & Co 183 Uxbridge Road, Ealing W13 9AA (020 8280 1098) (DX 5104 Ealing) e-mail: vmcgrath@vickers-solicitors.co.uk Fahmy Mohamed of Vincent Solicitors 11-13 South Road, Southall, UB1 1SU (020 8574 0666) e-mail: fahmy@vincentsolicitors.com Anthony Seymour of Rae Nemazec LLP 2 Barons Gate, 33-35 Rothchild Road Chiswick, London W4 5HT (020 8747 0055) (DX 80313 Chiswick) e-mail: ahseymour@hotmail.co.uk Chris Shearwood of Lovell Chohan Solicitors Tudor House, 44-50 Bath Road, Hounslow TW3 3EB (020 8570 6661) (DX 3537 Hounslow 1) e-mail: chris@lovellchohan.com Ariya Sriharan of Sriharans 223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3) e-mail: info@sriharanssolicitors.co.uk Renuka Sriharan of Sriharans 223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3) e-mail: info@sriharanssolicitors.co.uk

PAST PRESIDENTS R Garrod, J A S Nicholls, R C Politeyan, J Aylett, K Goodacre, H J B Cockshutt, W Gillham, L Lane Heardman, D Grove, L A Darke, C Beety, Mrs L E Vickers, H Hodge, E G B Taylor, A A M Wheatley, A H Kurtz, M J S Doran, H B Matthissen, G Parkinson, HHJ R D Connor, A Bates, J J Copeman-Hill, D B Kennett-Brown, S B Hammett, Miss F A Shakespear, HHJ P E Copley, A M Harvey, H R Hodge, G R Stephenson, B S Regler, W J C Berry, AS Atchison, L M Oliver, S W Booth, D D P Debidin, R E J Hansom, E H Lock, Mrs A Taylor, Mrs N Desor, Ms M Hutchinson, M Guyer, R S Drepaul, A Sriharan, Ms M Fernandes A Darlington, S Chhokar, Ms M Crowley, Professor M Davies, S Hobbs, Mrs R Sriharan, Mrs S Scott Hunt.

SOCIAL PROGRAMME 2013 - 2014 June July 13 Nov 15 Nov

Five aside Football Supreme Court, Guildhall Anniversary event Quiz Night Annual Dinner Dance

Contact the Middlesex Law Society Administrator, Peter Hesom: 07930 386798

EDUCATION &TRAINING PROGRAMME 2013 – 2014 24 July Crime Update – Dinner & Seminar 14 Aug Family Law – Dinner & Seminar • Feb.’14 Conveyancing Update Dinner & Seminar • Legal Aid Update - TBA UWL is University of West London, - St Mary’s Road, Ealing campus MU is Middlesex University, - Hendon campus BU is Brunel University – Uxbridge campus Others To Be Announced Contact the Administrator or visit our website for details.

COMMITTEE MEETINGS 2013 15 April 20 May 17 June 15 July 16 September 21 October 18 November 2014 20 January 17 February

AGM Wednesday 14 March 2014

PARLIAMENTARY LIAISON Robert Drepaul

Laura Vircan of Desor & Co. 768 Uxbridge Road, Hayes, UB4 0RU (020 8569 0708) (DX 44657 Hayes 1 Middlesex) e-mail: laura@desorandco.co.uk Alan Williams 59 St Marys Road, Ealing W5 5RG (07973 622312) e-mail: creativewit@tiscali.co.uk

www.middlesex-law.co.uk The Bill of Middlesex

local issues

President’s Page

Darrell Webb President, Middlesex Law Society e-mail: darrellwebb@boltburdon.co.uk

Welcome to another edition of the Bill of Middlesex. As this edition of the Bill goes to print the winter months will already be upon us and the busy festive season will be about to start, so before you get booked up here are a few important dates to put in your diaries: Past Presidents’ Charity Quiz Night – our annual charity quiz night will be held on Wednesday 13 November this year at the Drayton Court Hotel in Ealing. This is always a very enjoyable event and raises much needed funds for local good causes. The entry fee is just £10 per person and the quiz will start promptly at 6.30pm. 54th Annual Dinner and Dance – there are still places available for our annual dinner and dance on Friday 15 November at the luxurious Renaissance London Heathrow Hotel. By popular demand the music will be provided by the fantastic live KOKO band, so you can wine, dine and dance the night away. Tickets are £55 per person and full tables are available. If you would be interested in attending any of the above events, please contact our Administrator, Peter Hesom, at peterhesom@aol.com to book a place. As the CPD year draws to an end it is a good time to look back and reflect on the education and training we have provided to our members over the last 12 months and also to plan for the forthcoming CPD year. We have run two very successful risk and compliance workshops and have received fantastic feedback from our members, so this is certainly something that we intend to continue. We also hosted our first Practitioners Working Dinner for criminal law practitioners, which combined both a social and educational aspect to our CPD provision. We have a lot planned for the new year, but we would welcome your views on what CPD training you would like to see us provide. Would you like to see us providing more breakfast or lunchtime seminars, rather than just evenings? Do you prefer a more formal or informal training approach – workshops and dinners rather than seminars and talks? Your views are really important to us when it comes to planning the education and training we provide as a Society, so please feel free to let us know what you think. You can email me directly at darrellwebb@boltburdon.co.uk. Lastly, as many of you will know, HHJ Peter Copley sadly passed away in August this year having recently retired as a Circuit Judge at the Willesden County Court in February. Peter Copley was a past President of the Middlesex Law Society from 1986 – 1987 and will be greatly missed.

The Bill of Middlesex

local issues

The Royal Star & Garter Homes’ WW1 Centenary Battlefields Trek The Royal Star & Garter Homes is proud to announce its WW1 Battlefields Trek to commemorate the Centenary of the start of the First World War. The three-day sponsored trek takes place in September 2014, walking through Northern France and Belgium. It is a physical challenge and also provides participants with a unique perspective of prominent battle-sites of the Ypres Salient, often tracing the line of the Western Front itself. The Charity’s Regional Fundraising Manager, Mia Patterson, who will be taking part, said: “The Trek will be a poignant experience as well as physically demanding – and provides a memorable and meaningful way to raise funds to help disabled ex-Service men and women to live full, active lives.” The historian and broadcaster, Dan Snow, is endorsing the Trek and commented:

“What a fitting way to commemorate the outbreak of the First World War by visiting Ypres and other key areas in Northern France and Belgium for The Royal Star & Garter Homes. The Charity provides brilliant care for disabled exService men and women, and their partners. Over the years, it has looked after veterans of both the First and Second World Wars so it’s an appropriate way to remember those who gave up so much while raising money for a very good cause.”

The Royal Star & Garter Homes is a charity founded in 1916 to provide care for the severely injured young men returning from the battlegrounds of WW1. Back then the average age of residents was 22, today it is 87. Although the care needs have changed, the Charity’s mission remains to provide brilliant nursing and therapeutic care for the whole military family, in comfortable, state-of-the-art homes. The Trek participants will be supporting The Royal Star & Garter Homes in its mission to continue caring for those who bravely served, in their own time of need. This bespoke trip is organised for The Royal Star & Garter Homes by Discover Adventure Ltd and will be led by an experienced guide.

Middlesex Law Society (est. 1959)

APPLICATION FOR MEMBERSHIP Surname _______________________________________________________________________________________________________________ Mr / Mrs / Miss / Ms Forenames _______________________________________________________________________________________________________________________________ Name of Firm or Organisation ______________________________________________________________________________________________________________ Postal Address or DX no: __________________________________________________________________________________________________________________ Telephone ________________________________________________________________________________________________________________________________ Email ____________________________________________________________________________________________________________________________________ Status & Area of Work _______________________________________________ Date of Admission _____________________________________________________ Would you be interested in joining the Committee?

Yes/No

I wish to apply for FULL/FIRM/ACADEMIC/ASSOCIATE/STUDENT (YMG) membership of the Society (see below for details) I enclose herewith my cheque for £ _________ for the current year, made payable to "Middlesex Law Society" Signature ____________________________________________________________ Date _______________________________________________________________ Subscription Rates: Full Individual Membership:

£50.00 per annum (more than 3 years admission) £30.00 per annum (less than 3 years admission)

Firm Membership:

Partners/Solicitors 2-5 £125 per annum 6-10 £250 per annum more than 10 £500 per annum

Academic Law Departments:

£200 per annum

Associate Membership:

£15.00 per annum (Trainee Solicitors, ILEX members, Paralegals)

Students:

£5 per annum (Young Members Group)

Please return completed form and remittance to: The Membership Secretary, Middlesex Law Society, Susan Scott-Hunt, Middlesex University, The Burroughs, Hendon NW4 4BT Tel: 020 8411 6019 e-mail: s.scott-hunt@mdx.ac.uk

The Bill of Middlesex

property

Driving customer service improvements for conveyancers We know the importance of customer service to mutuals and conveyancers, so are delighted that conveyancers have once again recently highlighted the exemplary customer service and quick turnaround times from the water companies that provide the Law Society’s CON29 Drainage and Water Enquiry in England & Wales. Over 150 conveyancers were independently surveyed across England

John Pickford, Head of Thames Water Property Searches and Chair of

about the order process and customer service received when purchasing

Water Industry Property Information Network (WIPIN) commented, “We

the CON29DW during the house purchase cycle. Once again, over 97% confirmed the search order process either ‘met or exceeded their

know that customer service is critical in the conveyancing world, and this survey really helps us to analyse our processes and service. Undertaking

expectations’, with a rise of 3% in conveyancers who thought the service the survey as an industry allows us to benchmark our service nationwide, had improved since their last search. and ensure we can target industry improvements where they will really benefit the homebuyer.”

Following the inaugural survey in November 2012, WIPIN, which comprises the water companies who provide the CON29DW, commissioned the survey to run bi-annually. This second survey, undertaken in April/May 2013 revealed a significant 5% increase from 2012 in respondents who would speak highly of their CON29DW provider without being asked. “This demonstrates a genuine intent across the water companies to continually improve service” Pickford went on to say.

For more information about the CON29DW or to find your CON29DW provider, visit the website www.con29drainagewater.co.uk.

To find out more about the full range of searches available from Thames Water Property Searches, visit www.thameswater-propertysearches.co.uk or call 0845 070 9148.

The Bill of Middlesex

property

Electronic official searches Risk reduction as standard Law firms, licensed conveyancers and legal services businesses are under ever greater scrutiny to meet strict compliance standards and reduce exposure to risk. It has often been the basics or routine processes that are taken for granted. Perran Moon, Marketing Director of SearchFlow, discusses how property searches shouldn’t be an area where your guard drops. Information is the lifeblood of the client relationship to the lawyer or conveyancer – it is what drives the understanding and direction in a property transaction. This isn’t just a conversation about progress. It is about the clarity of the property information and the quality and accuracy of the advice given by the solicitor or conveyancer. This is what will drive informed decisions and reduce risk for the client and the practice. The need to manage down risk is manifest, not least to satisfy the scrutiny of lender panels, but also to secure professional indemnity renewals at an affordable rate. To meet CQS and SRA compliance, you must have effective measures in place to control fraud and minimise error, together with a clear client care charter and documented processes that ensure you treat clients fairly and transparently.

The good news for solicitors or conveyancers is that the existing, highly scalable National Land Information Service (NLIS) platform supports Local Authority requirements to disseminate source data electronically in an efficient and highly secure manner. Every Local Authority in England and Wales is connected to the NLIS Hub. By simply connecting from a PC via one of the NLIS channels, of which SearchFlow is the largest and an original partner, conveyancers can be assured that the electronic CON29 data they receive is pure, complete, current and direct from an authoritative source. Sue Dixon, local land charges manager at Wakefield Council, who have won three awards over the past five years for local land charges customer service and performance, commented:

The natural assumption with searches is that the information comes from the same source – the local authority, and that there is recourse for non- local authority search providers through the provision of the Search Code.

“NLIS is an excellent example of a public-private partnership working efficiently to serve the conveyancing market. Blending timely and authoritative data from local authorities and other data providers, with specialist client management expertise from the NLIS Channels, gives conveyancers a unique and reliable route to qualitative data.”

However, it is dangerous to assume that all search companies gather, record and reproduce the same information as each other, or follow the same processes in a consistent way. Too many traps await the unwary solicitor or conveyancer on matters such as rights of way, adopted roads, private or shared drains. It is important to understand the origins and the assumptions made with the data you receive from your current search company.

NLIS was established to create efficiencies in the conveyancing information chain from the source at the Local Authority to the conveyancer and on to the client – to create faster, smoother and more certain property transactions. 13 years since launch, it has delivered more than 21 million searches with minimum fuss and maximum quality and accuracy.

Translating the information received from the Local Authority so that it fits the operational efficiencies of the search companies is a key risk area. Are search companies getting all of the information that they should be? If not, what assumptions are they making? In order to meet turnaround times, are they shortcutting processes because there is a pressure to return something, even though Environmental Information Regulations mean that a Local Authority has up to 20 days to provide information which may not be readily available? Local Authorities across England and Wales are increasingly looking to maximise efficiencies and reduce processing costs, in the light of ongoing austerity measures imposed by central Government. Many are now looking again at the benefits of curating this information increasingly on an electronic basis to maintain the highest quality standards.

Wrapped around the NLIS operation is the further security and reliance of regulation, managed by Land Data. They work closely with The Local Land Charges institute (LLCI) on quality standards and enhancements to service and security, managing data and updates through the NLIS Hub to the channels. The regulations and strict licence agreements which the NLIS channels operate under protect the conveyancers, clients and data providers. This goes to the heart of what a regulated search really means. The CON29 Official Search has a defined Law Society standard which is unambiguous, consistent and reliable. By structuring answers into the CON29 format, Local Authorities can be sure that the information they release is best represented to the consumer – without manual intervention, interpretation or transcription, which could give rise to costly human error. Land Data regulation also extends to how the NLIS channels operate, advise and maintain service standards.

Boundary plot accuracy is also crucial here. SearchFlow uses Ordnance Survey Mastermap as standard for all of its search requests into Local Authorities. This is the baseline standard for Land Registry plans and the accepted standard by local land charges team to identify plots, land parcels and the essential detail needed to deliver back accurate search data. You need to question whether your search provider meets these standards. Other searches purport to be regulated and there is strong reliance and consumer protection from The Search Code, but the difference is in the level of reliance. Local authorities carry unlimited liability and are the known source whereas smaller search businesses could mean a step into the unknown – a key risk for solicitors or conveyancers concerned about risk reduction and treating clients fairly and equitably. Maintaining a high, consistent degree of data accuracy and currency, sourced with no manual intervention can only be good to mitigate exposure to risk and flak from your client after completion. To ensure the CON29 meets changing due diligence needs, consultations are ongoing about updates to required questions and data sources. The new format will require more area specific information and Local Authorities are looking to how to combine these registers electronically as an obvious management route. NLIS will play a central role in how this is disseminated in the market, as greater requirements for more search data will ensure that more information held by Local Authorities will be more efficiently exported. So, given all of the compliance pressures, competitive threats and indemnity risks circulating around conveyancing – one readily available safeguard comes in the form of the official local authority search. It really is protection by design – delivering consistent quality every time, so you can focus on your client and your practice management to secure ongoing business growth. www.searchflow.co.uk

The Bill of Middlesex

legal aid

Obsessed with size? FTSE100 today and gone tomorrow is a pattern well understood to followers of the stock markets. It is a catchphrase often matched with ‘the small companies of today are the large of tomorrow’. What explains the popularity of global brands and the welcome for giant corporations by public authorities and government agencies? The buyers seem fixated with the idea that the large scale suppliers are a sure sign of success and such service providers will deliver important benefits. Is it guaranteed performance or reliability one might ask - or simply a low price, that shuts out competition? Despite the enthusiasm of government and consumer groups for reducing the price for legal services through large scale operations there is no evidence that the cost of legal services is reduced in this way and more importantly such commoditised services do not well match individual needs for personal legal services. The commercial market still clings to high standards and favours customised services because it reduces risk aids competitive performance and satisfies consumer needs. Despite all this it has been a long standing ambition of the legal aid authorities and now the MOJ to introduce price competitive tendering for legal aid contracts. I well remember debating in a public meeting with Lord Carter in 2006 when the concept of best value tendering was proposed. It was a barren idea born of accountants to reduce the number of suppliers and drive costs down. It had no regard to the objectives of the legal system nor the social value of legal services - let alone any sense of outcomes or unintended impact. Little has changed in the approach adopted 7 years later in the current MOJ consultation which

ostensibly has the objective to settle the future of criminal legal aid. Driven by the imperative to shave £200m from the departmental budget the proposed changes are destructive of lives and careers and will do nothing to improve the experience of victims or the efficiency of the legal process. The negotiating process has been difficult and lengthy – part public in front of the parliamentary Justice Committee and part with lobbying from practitioner groups and the Bar - each seeking sectional advantage. In the face of representations by the Law Society and opposition from many quarters the Lord Chancellor has conceded the right for defendants to choose their lawyer and qualifying for contracts for that work will depend upon quality and capacity criteria rather than price – assuming that the new lower fees are sustainable. There are many details to be worked through such as the perverse incentive created in relation to paying the same fee for ‘guilty’ and ‘not guilty’ pleas. Although Price Competitive Tendering has nominally been withdrawn the fact that fees are to be cut by an average 35% over two years means that the outcome may be no different to that threatened by PCT and take place before there is time for market consolidation. There are many details to be worked through such as the perverse incentive created by applying the same fee scale to ‘guilty’ pleas as for ‘not guilty’ pleas. Although Price Competitive Tendering has nominally been withdrawn the fact that fees are to be cut by an average 35% over two years means that the outcome may be no different to that threatened by PCT. A major issue remains that despite the introduction of minimum quality standards a minimum contract size will determine which firms win a duty solicitor contract. The removal of viable duty solicitor slots will confiscate a living for a large number of members. The area of discussion concerning own client contracts and duty solicitor contracts, seems to have been confused by procurement law issues and the long standing anomalies in that market. Reasonable readjustment of those anomalies alone would be sufficient to bring a degree of reorganisation into the market. All the detailed requirements of the rapidly constructed four year contracts are perhaps a side show when set beside the proposed fee cuts of 8.75% in April 2014 with a further 8.75% in 2015 when new contracts start. The supplier base i.e. the solicitors providing the service, appear to be powerless to prevent what is an entirely a political decision. The fact that it may drive costs to other ministries or that the cuts will themselves be unsuccessful is beside the point. If the cuts are implemented on their own without any of the other threatened contract changes then market reorganisation would be inevitable. Although standards and capability are the touchstones of a profession MOJ insist on larger size firms to deliver contracts in their proposed 62 areas. Whether a firm that can deliver today will be viable to deliver the new untested pricing is a moot question. As with any market that artificially restricts new entrants there is no assured supply for the future. These proposals create a closed market that is in stark contrast to the dynamic market that the regulators have wanted to introduce under the Legal Services Act 2007.

By Michael Garson Council Member for Central and South Middlesex and chair of Law Society Regulatory Affairs Board michael.garson@kaganmoss.co.uk

For some reason monopoly buyers such as government and the CML lenders, in the conveyancing world, favour the large volume firms and support for that model sends a very poor message. What impact might there be from these changes? Mis-trials; more guilty pleas from those who are not guilty; more unrepresented defendants in complex or multi handed cases and judges unable to manage trials effectively and without waste to other services involved. It is likely that hastily constructed and artificial structures with in built skewed incentives will be the victim of many unforeseen consequences.

The Bill of Middlesex

legal aid

There will be a cost to social services and to those law enforcers who maintain order outside prisons, the health and probation services and government departments outside the MOJ. Whether you call it short termism or lack of joined up thinking the blunt tool of swingeing wage cuts seems a low grade response to the need to save costs in the criminal justice system. We are dealing here with the fundamental human rights to advise and assist in defence against state prosecution. A more intelligent approach with fewer prosecutions in the pipeline would surely have directed itself to policy formation and changes to charging, remand processes, and pre trial hearings where anomalies can be identified. There are continuing negotiations and the Law Society plan to submit further evidence. The lobbying of MPs and other public bodies is an avenue that members are being urged to actively pursue. Irrespective of the message that we may wish to deliver on behalf of our colleagues members, there is another message that should be delivered loud and clear to the general public concerning the erosion of basic human rights that will impact when they or their children or friends will be victims of a harsh, impersonal and error ridden system run by anonymous and invisible corporations. The picture painted for the profession is to be found repeated elsewhere in relation to lender panels where admission is not governed by competence but by volume of cases - once again delivering self-perpetuating cohorts of firms authorised to deal with work for certain lenders. This is not competitive whether inside or outwith the artificial limits laid down by current competition law. This issue was debated at length and with considerable passion and expertise in Council on 16 October and further information reports updating progress will be issued to members.

The Bill of Middlesex

book review

BLACKSTONE’S GUIDE TO THE DEFAMATION ACT 2013 AN OVERHAUL OF DEFAMATION LAW AFTER YEARS OF EMBATTLED CONCERN: INCLUDES A COPY OF THE ACT Like other titles in the popular Blackstone’s Guide series published by the Oxford University Press, this new ‘Blackstone’s Guide to the Defamation Act 2013’ provides analysis and comment on the Act as well as a copy of it. The result is a clear explanation of its new provisions — certainly a boon to practitioners and other professionals coming to grips with what has been described as a complex piece of drafting. Inevitable, you might say, in view of the almost Byzantine complexity of this area of law.

This new piece of legislation is particularly interesting as its development and the passage of the Defamation Bill occurred in parallel with the hearings in 2011 conducted by the Leveson Inquiry into the Culture, Practices and Ethics of the Press, although as the editors of this guide have pointed out, there was ‘little apparent cross–fertilization, except at the end of the parliamentary Edited by James Price QC and Felicity McMahon

progress of the Bill’ – and thank goodness is all we have to say. Also, as the editors remind us in the introductory chapter, ‘both Houses… agreed to the removal of the Leveson amendments

ISBN: 978 0 19 966421 4

from the Bill.’

OXFORD UNIVERSITY PRESS www.oup.com An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

The Bill inevitably generated other battles and controversies which are the subject of copious commentary in the text by the ten expert contributors to the book (each a specialist in libel and/or media law) under the able editorship of James Price QC and Felicity McMahon.

Informed, learned and certainly analytical discussions of the new legislation, as well as numerous explanatory references to the pre-existing law are as a result, provided throughout, with emphasis on how the new law will work in practice. Suffice to say though, if you want to be really clear on the content of the new legislation then read the new legislation, which fortunately this book includes in its entirety.

Conveniently for the busy practitioner, the book functions very well as an excellent quick reference, especially as it is organized to follow the structure of the Act throughout. Numerous additional avenues of further research are also opened by tables of cases and legislation, the meticulous footnoting.

The legislation itself is contained in the two appendices; appendix 1 being the Act itself with explanatory notes. Appendix 2 provides you with the Defamation Act 1996, Schedule 1 (as amended by the Defamation Act 2013). For those dealing professionally with any aspect of the law of libel, this book should be regarded as an essential purchase. The publication date is cited as at 2013.

The Bill of Middlesex

book review

INSIDER DEALING

Law and Practice

INDISPENSABLE FOR PRACTITIONERS: A THOROUGH, PRACTICAL & STRAIGHTFORWARD GUIDE TO INSIDER DEALING LEGISLATION Insider dealing — and some of its more notorious perpetrators — has become the stuff of legend, not to mention shock and awe. In writing this comprehensive guide to insider dealing legislation, author Sarah Clarke has created a legal text that is not only useful, practical and authoritative, but also a rather fascinating explication of illustrative case law, including some extremely high profile cases which, in their day, were world famous. For example, does anyone remember the case of Ivan Boesky back in the eighties? As an insider dealer (‘risk arbitrageur’ as he preferred to be known) with an army of paid informants, he amassed millions by betting on inside information on corporate takeovers. He was eventually caught when one of his informants informed on him — but not before enjoying a life of wealth, eminence and respectability. Invited to speak at a Commencement (graduation) Ceremony at the University of California at Berkeley’s School of Business — of all places — he extolled the virtues of greed. The character of By Sarah Clarke ISBN: 978 0 19 967295 0 OXFORD UNIVERSITY PRESS www.oup.com

Gordon (‘greed is good’) Gekko played by Michael Douglas in the film ‘Wall Street’ is based on Boesky’s villainous and energetic exploits. But enough said here, except to remark that insider dealing has emerged in recent decades as a difficult crime to convict, (either in its civil jurisdiction or as a criminal offence) as well as difficult for its victims to come to terms with.

An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

Anyone involved in the financial services industry, particularly its legal advisers will therefore be grateful for the launch of this new book from the Oxford University Press, which, as explained in the preface, is aimed at ‘practitioners, firms and individuals… coming into contact with insider dealing investigations and proceedings’. ‘This book’, adds the author ‘aims to provide lawyers, compliance specialists as well as judges and tribunal panel members with ‘a route map through the practice and procedure of an insider dealing investigation and persecution or civil action for market abuse’. The author has certainly written and compiled this book from an especially advantageous background, namely six years as a technical specialist and In-House Counsel within the Financial Services Authority (FSA) now the Financial Conduct Authority (FCA). Also drawing upon advice and comment from other experts in this field, she presents the full spectrum of issues pertaining to insider dealing, from historical perspectives, and relevant legislation to defences, prosecution, penalties, sentencing, investigation, the enforcement process and much more. Those doing further research into this subject will appreciate the extensive footnoting throughout this text, together with the extensive tables of cases legislation and useful index at the back. This, says Clarke is the text book she herself would have liked to have read seven years ago when no such text existed at the time — and as instances of insider dealing seem to have become more frequent and more serious, this book should be considered a must-have purchase for the professional practitioner’s library. The law is stated as at 1 July 2013.

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family law

Sole or primary carer for dependent relatives The above wording in now incorporated as one of the statutory mitigation factors reducing seriousness or reflecting personal mitigation in some recent guidelines, assault, burglary, drugs and dangerous dogs offenders. The current consultation guideline on fraud closing on October 4 2013 contains a similar provision so it would appear that this is the format for future guidelines. Perhaps the overarching guideline of principles effecting seriousness, (mitigating factors in the assessment of culpability and harm), issued in 2004 could now be extended by inclusion of these words so as to apply to all guidelines and not just recent ones. These are the reasons why. Failure to be able to care for dependent relatives, particularly children, hits defendants very hard, and even more so if they come from an underdeveloped country where there is no social security, social services or other safety net. Of course in the majority of such cases the family is able to make provision, albeit at a reduced level, but there remains a significant minority where this does not or cannot happen. The defendants in such cases will not only be serving their sentences for their offences but they are sometimes punished further by having to ‘witness a death sentence’ on their nearest and dearest where they are powerless to help. Effectively such defendants are being sentenced twice for the same offence. See also R v Petherick 2012 EWCA Crim 2214 as to the application of Article 8 of the ECHR to the issue.

original sentence out of time and also made a formal application to her prison governor for early compassionate release pursuant to section 248 of the 2003 Criminal Justice Act. The Court of Appeal dismissed her application for leave to appeal but did direct that the prison should consider her application for early compassionate release. The grandmother died in June 2013. Despite the intervention of the Court of Appeal it took 7 weeks, and a judicial review application, before the prison responded to Ms Kyere’s application. When it did so it supported the application for early compassionate release but the Ministry of Justice opposed it and the children were only rehoused because of the charitable intervention of a church in the UK.

Such a recent case was R v Fascina, 2012 EWCA Crim 2473, which unsuccessfully challenged R v Boakye 2012 EWCA Crim 838 as being fundamentally unjust. (See Solicitors Journal 2012 com/node/). This held that the new sentencing drug guideline could not apply to those sentenced before the new guideline came into effect on 27 February 2012. Ms Fascina was sentenced in January 2012 which meant that following Boakye she could not benefit from the shorter sentences imposed by the new guideline. But equally the decision in Boakye meant that she could not benefit from the sole or primary carer for dependent relatives provision either. This was important in her case because she was the sole or primary carer for her grandmother in Ghana who relied on her to provide her medication. Ms Fascina’s application for leave to appeal her original sentence was dismissed. The grandmother died two weeks after their lordships decision.

Although the vast majority of such cases come from the third world the importance of the dependent relative provision is not exclusively confined to it. Local authorities are under increasing pressure to seek adoption when they have children in care . In R v F, still ongoing, the applicant serving a sentence of nearly nine years, found that her children’s child minding arrangements had broken down and had no choice but to place her children in care. The local council has now obtained a placement of the youngest child with a view to adoption and F has applied for leave to appeal her sentence out of time .The dependant relative provision may be a factor here.

Such hardship could be mitigated if the Ministry of Justice was more prepared to permit early compassionate release in appropriate cases pursuant to section 248 of the Criminal Justice Act 2003. In R v Kyere. unreported 5 June 2013, the applicant had three children, again in Ghana, with no one willing or able to take financial responsibility for them, homeless and begging on the street. The two youngest were found to be suffering from malaria, a killer disease in Ghana, and the eldest from severe boils all over her body attributed to malnutrition. A South African doctor gave a risk assessment and stated that ‘all three children were at risk of severe damage to their health or death’. Ms Kyere had been supporting all three children, together with her grandmother who had suffered from a stroke, before her arrest. Ms Kyere had been sentenced in 2011 so again, because of Boakye, she could not rely on the sole or primary care provision for dependant relatives in the new guideline .However she did seek leave both to appeal her

The above three cases may be sufficient to show that solicitors and advocates should consider the dependent relative provision with great care when obtaining instructions. It is particularly important that this should be mentioned in interview as a failure to do so may result in subsequent mitigation to that effect being treated with scepticism on sentence. See article by Janet Loveless, “When is a courier not a ‘mule’ ”, penultimate paragraph, Journal of Criminal Law 2012 76 JCL 444-455 when the author so rightly observes that:“it is now incumbent on defence solicitors to provide to sentencing judges as full a picture as possible of background circumstances so that both role and mitigation of drug couriers can be properly assessed. It has to be recognised that many couriers do not disclose their circumstances in the early stages of the judicial process because of disorientation, shame, the need to protect others who were under threat or lack of trust.(Sentencing Council Research interviews at pages 4/6). It is therefore vital that defence solicitors are aware of these matters, and find ways to address them, so as to assist courts to arrive at more proportionate sentences than before”.

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This is quoted in full because sadly mitigation is not always being structured round the new guidelines - with disastrous results. One case where it was possible to correct this on appeal was R v Mildred Teresa de Leon 30 January 2013 EWCA Crim196 where the Court of Appeal was prepared to accept, with the benefit of new information and the above article, that the defendant’s role should have been ‘lesser’ rather than ‘significant’ resulting in a reduction of sentence. For their part judges should be alert not only to consider placing such cases lower in the sentencing range but also in cases of sufficient hardship to place them in a lower category altogether as they are entitled to do.(Drug Sentencing Guideline page 7 .‘In some cases having considered these factors it may be appropriate to move outside the category range.’) In my very respectful submission fairness dictates they should always consider this when faced with a defendant from an overseas country facing ‘being sentenced twice’ because there is none available to look after their children or other close dependent relative. Indeed it is arguable that the Sentencing Council should place such cases in a category of their own. In subsequent years historians, with a world view rather than a first world view, may struggle to understand how a just and compassionate judicial and prison system, could permit Ms Kyere’s children to live unsupported

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and ill, begging on the streets of Accra, or Ms Fascina’s grandmother to die without medical provision. In the same way we now look with amazement and horror at a sentencing culture in this country, of public executions, the treadmill and ‘the cat’, only 150 years ago. But history may also regard the Drug Sentencing guideline as a watershed in sentencing policy and as a beacon for the future. This is because it for the first time, (apart from the guideline on youths), it was recognised that there could be a group of people ,(in this case the genuine drug mules), who could be sentenced on the basis of who they were as well as what they had done. Despite a savage increase in a pro victim custody culture this is a very welcome light at the end of the tunnel and recognition that sentencing policy should embrace everybody - victims, defendants and their dependents. This process can only be accelerated by a willingness to use the sole or primary carer provision for dependent relatives, particularly in the third world, to the full. Alured Darlington BSB solicitors incorporating Hanwell Chambers. Revised 17 September 2013.

professional issues

How has your compliance journey been so far? It has now been two years since the latest regulatory journey started for law firms, but for many it has been a very bumpy ride!

The current regulatory journey started for many firms on 6 October 2011, with the introduction of the new SRA Handbook and Outcomes Focused Regulation (OFR), but we have seen examples of many firms delaying their journeys, or even worse, not starting them at all! The 1st January 2013, saw the formal appointment of new compliance officers (COLP/COFAs), which for many firms was just a continuation of their compliance journey as their compliance officers had taken up the new roles immediately after nomination in mid-2012. Other firms’ journeys only really started in January because they thought that OFR and the SRA Handbook only took effect once the COLP/COFA regime had come into force, and had therefore done little or nothing to move their compliance processes forward! More alarming is the fact that a number of firms appear not to have started their compliance journeys at all thinking the SRA has bigger fish to fry and would take an age to catch up with them; the SRA may have its hands full but the likelihood is that it will be calling sooner rather than later, whether by email, telephone or a visit! There are numerous areas currently under review by the SRA, for example, PI firms affected by the referral ban, legal aid firms that could be affected by government cuts, financially unstable firms, etc., so most firms could have contact with the regulator at some point in the near future! It would be wrong of firms to think that the only organisation that is concerned about their risk and compliance is the SRA; there are organisations that are far closer and that can pack a deadlier punch, and they are the indemnity insurers! Without professional indemnity insurance a firm cannot trade and the only way it can get insurance is to show it is a risk worth covering and engages in the regulatory regime under which it operates. Financial instability is probably the biggest issue currently facing firms and having seen a number of large practices collapse, or be subject to intervention, it is very much an issue that has now hit home as being one that could affect any size of firm. The SRA is clearly concerned that some firms are not being as well run as they should be and many are currently under close scrutiny. COLPs and COFAs should be taking the lead in protecting their firms from financial risks and should, where appropriate, be getting partners to change their ways if they could be regarded as “toxic” by the SRA! These “toxic” partners are regarded as the ones that keep financial information to themselves and won’t change what are seen by the

SRA as bad behaviours, including, making payments to partners irrespective of cash in the bank, all net profits being drawn with no reserve pot retained, short term borrowings to fund partners’ tax, etc. Embedding an effective risk culture within some firms is clearly a problem for some COLPs and COFAs, mainly because other staff and partners don’t see compliance as being their problem, but firms cannot afford to have their people saying, “compliance is nothing to do with me, speak to the COLP”, or “what is a COLP?”; compliance is a team game not just one for certain individuals! Compliance training for all staff is another issue that COLPs and COFAs need to consider, as many non-solicitors seem to be totally unaware that the code of conduct also applies to them, and that they could face disciplinary action and sanctions for failures just like their solicitor counterparts; even some solicitors are unaware that the code applies to non-solicitors as well as them! Many employees also seem to think that the code of conduct only applies to them during working hours, and therefore believe that what they do in their spare time is nothing to do with their firm or regulators, but this is clearly incorrect, as issues of integrity and bringing the profession into disrepute can arise away from the office. The rules apply to everyone, although some will apply more to some than others depending on their roles, and those thinking their COLP/COFAs are the only ones with their heads on block need to think again! One of the real concerns for COLP/COFAs has been the conflict they may face when having to consider reporting to the SRA, or getting the support they need from others within the firm, and I am aware of a number of COLPs that have threatened to resign from their positions to get their way or what they need to do the job; firms need to realise that COLP/COFAs can hold a lot of power because if they do resign their positions due to a lack of support, the SRA will want to know on the appropriate form! One piece of good news for firms is the SRA’s decision to remove the need to report non-material breaches on their annual information return; firms will still be required to record such breaches just in the case the SRA askes to see them and to enable them to track trends that could lead to a nonmaterial breach becoming material and need reporting. The compliance journey may be bumpy at times, but firms must accept that it is a journey they must take, and take quickly!

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professional issues

Set yourself apart from the competition as a qualified and competent will draftsman The last couple of years have seen the tide come in and go out again on the regulation of will writing. Regulation of Will Writing (alongside Probate and Estate Administration) seemed a certainty but, in May 2013, the recommendations of the Legal Services Board were rejected by the Lord Chancellor and the Ministry of Justice. Most stakeholders in the will writing world felt a sense of injustice. While the quality of provision will undoubtedly continue to be scrutinised, the future for the regulation of will writing is currently unclear. Amidst this uncertainty, and in the absence of regulation, what is there to differentiate the quality provider of will writing services from the incompetent in the eyes of the client? The answer has to be training, qualification, expertise and professionalism. Now, more than ever, clients need properly qualified and capable will draftsmen to prepare their wills. Family structures are increasingly complex and private wealth continues to grow significantly. Clients require high quality technical wills from professionals who understand the law. They require a service which meets the highest levels of competence and professional standards. But is technical competence alone enough? Even well drafted

wills may not reflect the circumstances or real needs of the individual unless the will draftsman possesses the breadth and depth of knowledge to ask the right questions and to advise the client appropriately. To be a truly “trusted advisor” the practitioner needs a holistic knowledge across a range of technical areas and the client-facing skills to apply that knowledge in the right way. The STEP Advanced Certificate in Will Preparation is the only advanced specialist qualification in the will writing field. Taken by TEPs, solicitors, barristers and professional will writers this qualification is the benchmark for what you need to know and be able to do in order to demonstrate you are the expert, professional quality service provider in this field.

The Advanced Certificate is delivered through a blend of distance-learning and three face-to-face workshops in March, April and June 2014, in London. Assessment is two-fold comprising a workshop-based task and a three hour closedbook examination. The exam will take place on 14 July 2014. Enrolment is now open at http://www.step.org/step-advanced-certificatewill-preparation-england-and-wales

STEP ADVANCED CERTIFICATE IN WILL PREPARATION Set yourself apart from the competition as a qualified and competent will draftsman.

ADD VALUE TO YOUR BUSINESS WITH THIS PROFESSIONAL QUALIFICATION

No for w ope en n in L rolmen ond t on

THIS ADVANCED CERTIFICATE IS A GROUND-BREAKING QUALIFICATION, BOTH PRACTICAL AND UNDERPINNED BY ACADEMIC RIGOUR. AS SUCH IT CAN BE INTEGRATED INTO YOUR BUSINESS SOLUTIONS STRAIGHTAWAY.

COMPLETION OF THIS ADVANCED CERTIFICATE WILL: • Provide you with a recognised qualification in this field. • Enhance your ability to give holistic advice to clients as a “trusted advisor”. • Develop your own technical competence. • Support you in building your reputation and business as a will draftsman in particular and in enhancing your private client services more generally. Completion of the Advanced Certificate enables you to meet your annual STEP, SRA and ILEX CPD requirement.

View the syllabus at www.step.org/pd or www.cltint.com/stepcertwillprep

A qualification for practitioners in England & Wales

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professional issues

Welcome to a very special partnership… Welcome Cottages and Dogs Trust The UK’s leading canine charity has been working with Welcome for 10 years now and in that time the partnership has generated donations of over £500,000.00! For every booking made through the partnership Welcome Cottages donate 10% of the property rental to Dogs Trust. That’s an average of £40 for every booking made – money that makes a vital difference to the future of all Dogs Trust dogs across the UK. Anyone can book through the scheme and if you visit the website you can discover thousands of wonderful holiday properties all over the UK, France and Ireland that are just ready and waiting for you and your dog. See handpicked thatched cottages, farmhouses and lodges and many more unique properties all of which are dog friendly. What’s more, the selection is graded to the exacting standards of VisitEngland who ensure your holiday home is as good as its picture looks. To see the full selection of cottages and book securely online… visit www.dogstrust-cottages.co.uk where you can see live availability and lot’s of images. Alternatively call the friendly booking team on 0845 604 3933 (lines are open 7 days a week). Finally if you would like to order a brochure please call 0845 268 7000. Happy holiday searching!

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professional issues

COLP and COFA:

Compliance, risk and regulation The Solicitors Regulatory Authority (SRA) view the Compliance Officer for Legal Practice (COLP) and Compliance Officer for Finance and Administration (COFA) positions as pivotal to OFR and driving up standards and reducing regulatory risk. In addition to the regulatory pressures, the economic conditions remain stormy both within the UK and the Eurozone. Client focus and strong commercial management are more important than ever if law firms are going to achieve business success. Underpinning all of this is compliance, risk and regulation which will be core to survival in a highly competitive legal market.

Keeping those plates spinning It is clear that there is still a significant level of confusion and uncertainty amongst the legal profession regarding their obligations under outcomes-focused regulation (OFR), the riskbased approach to regulating law firms introduced by the Legal Services Act 2007.

Large law firms will typically have the capacity to devote sufficient time and attention to achieving their regulatory outcomes with dedicated risk and compliance personnel, but what about the smaller law firms and sole practitioners? How do they successfully navigate the role of COLP and COFA, in addition to keeping all of their other ‘plates’ spinning?

Staying Afloat The role of the COFA within a law firm involves embracing financial management. The SRA exceeded its entire 2013 budget for interventions within the first few months but they do not accept that the sole reason for law firms experiencing financial difficulties is solely due to the current economic climate but also the changes to civil litigation funding and more stringent lending. It is important that firms, large and small, have strong and effective processes and controls to minimise their exposure to financial risk which may in turn endanger client interests. Effective governance will ensure that the sole practitioner or partners will have; • a comprehensive understanding of the risks the firm faces. These are classified under strategic, operational and regulatory risk. • the appropriate oversight and controls they need to manage that risk effectively.

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professional issues Law firms good practices may include; • Each partner receiving a bank statement at the beginning of each day thus ensuring that financial performance is never far from their thoughts. • Retaining a tight control over expenditure. Costs, including partner drawings, should be reduced in line with any reduced profitability. • Cash flow management. A process for getting paid in a timely fashion from clients is critical for law firms. The ‘debtor days’ number can often creep upwards in tough times as everybody starts to feel the pinch. The number of days it takes a firm to bill a client and ultimately get paid (‘lock-up’) will inevitably impact on the firm’s day to day liquidity. This can in turn lead to difficulties in paying staff and suppliers. The COFA is responsible for implementing systems and controls to ensure a fully operational and robust compliance culture is promoted throughout the firm, which are appropriate to the size of the firm enabling them to monitor financial risk and stability.

Best Use of Time Balancing the demands of your clients and your business with the requirement to be compliant has never been more difficult.

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The list below (which is by no means exhaustive) highlights some of the requirements of the COLP and COFA; • Identifying, monitoring and managing risks to compliance; • Developing and implementing risk management tools (for example, the risk register); • Conducting audits to comply with outcomes-focused regulation; • Training and encouraging a culture of collective responsibility; • Equality and diversity requirements; • Taking all “reasonable steps” to ensure compliance; • Systems and controls to identify and record compliance failures; • Implementing suitable systems and controls to ensure compliance with the SRA Accounts Rules 2011; • Business continuity/disaster planning; • Anti-money laundering and bribery policies. Is this the best use of your time? Arguably, the more time you are spending trying to create appropriate systems, processes and controls and draft the appropriate template policies and documents – the less time you have to focus on your clients and the commercial activities of your firm.

Outsourcing support to help you manage your regulatory responsibilities will often make commercial sense.

Compliance Support The Corre Partnership LLP works with managers and members of law firms, together with their nominated COLP and COFA ensuring that a fully operational and robust compliance culture is promoted throughout the business. CORRE’s people are highly experienced professionals, consisting of former lawyers and consultants who have worked with law firms over many years. Using the services provided by CORRE allows you to develop your own business in the comfort of knowing that you are meeting your compliance, risk and regulatory responsibilities. In a nutshell, CORRE enables you to focus on increasing revenue by doing more of what you do best – providing legal advice for your clients. For further information on The Corre Partnership LLP or to find out more about the full range of services available, please visit www.thecorrepartnership.com or call 0844 800 3089.

professional issues

Combating Stress In The Workplace A new YouGov survey indicates the UK is a nation of stressed staff, but Jane Crosby from law firm Hart Brown advises that this is preventable and stress can be managed by businesses

The ‘Big Work Survey’ undertaken by YouGov on behalf of Westfield Health, questioned 2,011 UK working adults and 520 senior decision makers. According to the results, 66% of the persons surveyed said they felt happy at work, despite 64% of the same employees claiming they felt stressed at work. The survey results highlight that stress is still a significant problem in the workplace, with more than a quarter of employers saying it is a ‘common pressure’, therefore signifying that workforce health is important to the success of any organisation. Other results from the research show that nearly half of employees say their employer does not generate a ‘fun and healthy environment’ to work in and Richard Branson would be their preferred boss from a number of public figures, suggesting that people believe that Virgin has successfully established a good working environment for their employees. The Health and Safety Executive describes stress as the “the adverse reaction people have to excessive pressures or other types of demand placed on them” and it is important for employers to recognise the benefits for their business in terms of tackling stress. Stress is in itself not an illness but can lead to mental and physical ill health. There are clear benefits for dealing with stress at work because if employees feel happier at work they are likely to increase their productivity and also be less likely to take time off due to stress related illnesses such as depression, back pain and heart disease. The survey also explores the methods by which employees chose to unwind after work. 47% choose to spend time with their family, while 31% opt for exercise. However, there is a worrying trend that more than a third attempted to combat stress by drinking alcohol, with 27% confessing to comfort eating. Employees can often feel demotivated and perform poorly if they have no input in how and when they do their work and do not feel they are in a supportive working environment. However it is not only managers of the business who should bear the responsibility of reducing stress in the workplace. Work colleagues should also bear certain individual

responsibilities as well. Unwanted banter and too many cigarette breaks were habits which people found generally annoying about their work colleagues, which were identified in the survey. If changes are to be introduced effectively in the workplace then businesses need to manage stress successfully so that employees find change easier to cope with. Employers are under a duty to assess the risk of work related stress and put in measures to help reduce these risks. There are a number of solutions which employers could consider to reduce the impact of stress in the workplace for example:•

Consulting with employees about stress awareness and implement training programmes for employees who are unable to cope with extra pressures at work

•

The introduction of effective company policies which deal with stress at work which include anti-bullying policies

•

Adequate support and training for employees who are experiencing difficulties at work

•

Management and leadership development training so that managers can introduce positive behaviours into the workplace which reduce stress in their staff and help managers to easily recognise situations which are likely to cause stress

•

Implementing systems which reduce unreasonable demands on employees by allowing employees to organise their time effectively

•

Offering support through occupational health schemes and allowing employees to discuss their problems on a confidential basis without any repercussions.

Stress can be therefore preventable at work by introducing effective company policies, introducing successful management structures and training, managing change effectively and providing the right support for employees who are under pressure.

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professional issues Timely outsourcing guide helps law firms to work smarter In an effort to introduce legal practices to smarter and commercially focused ways of working, Quill Pinpoint has published a guide on how outsourced cashiering works. As the profession continues to suffer mass redundancies and law firm closures, as well as face increased competition from the growing number of ABSs and newly merged adversaries, the handy guide aims to instruct the uninitiated on the merits of outsourcing as a means of surviving and thriving in a challenging marketplace. The guide explains in layman’s terms the procedure for outsourcing legal accounts as a simplified 5-step process, along with the extensive range of benefits to be gained from alleviating the burden of this heavily regulated back office function. Quill Pinpoint has over 20 years’ experience in outsourced cashiering. Their expertise brings a tried-and-tested cashiering solution direct to law firms. Benefits cited in the report include higher earning power by refocusing on fee earning and marketing; financial savings with less manpower and infrastructure requirements; healthier cash flow resulting from up-to-date bookkeeping; business continuity and disaster recovery planning with continuous cashier support and 24/7 software availability; streamlined annual

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accounting with a current set of accounts and privileged accountants access to your data; and automatic compliance as the cashiering service adheres to the Solicitors’ Accounts Rules and other regulatory guidelines. Julian Bryan, Managing Director at Quill Pinpoint, explains how the “difficult market conditions are hitting law firms hard”. “In this harsh economic climate, firms are finding it difficult enough to stay afloat, let alone make a profit”, Julian adds. “We’ve published the guide now because practices need all the help they can get, and may not yet have considered the possibility and advantages of outsourced support. Outsourcing is a survival strategy”. Julian admits to having an ulterior motive for the guide’s publication – dispelling any myths about outsourcing being an expensive and complicated solution. “The guide gives me the opportunity to set the record straight”, states Julian. “Contrary to oftenheld beliefs, outsourcing is much more cost effective than running an in-house

cashiering team. The monthly fee is based upon activity levels on a pay-as-you-go contract. Moving to an outsourced environment couldn’t be easier. There’s no software to install locally and firms have their own assigned cashier so it’s a friendly service. If practices are just setting up in business or their cashier has recently resigned, they should give us a call”. The guide is published on the Internet Newsletter for Lawyers website at http://www.infolaw.co.uk/newsletter/2013/07/ quill-pinpoint-how-outsourced-cashieringworks. As well as its Pinpoint Interactive legal accounts outsourcing service, Quill Pinpoint offers a payroll service for companies who want to reap the full benefits of outsourced support. If you want to find out more on Quill Pinpoint’s products and services, get in touch by email at info@quill.co.uk, call 0161 236 2910 or visit www.quill.co.uk.

film

FILM AND THE LAW No: 21

Sophie Scholl: The young woman who stood up to the Nazis Kelly asks the inevitable question. But what films would you show? Whilst, it’s true I like To kill a Mocking Bird and 12 Just Men. There are lots of others, you know, such as Sophie Scholl... and eh... Sophie Scholl? Haven’t heard of that one. By Vincent McGrath vmfilmnite@googlemail.com 020 8579 5330 07877 551442

Sophie appearing before the dreaded Judge Freisler. We are discussing films that could inspire Law students, like Kelly. Films that would put the Law in a wider context. Films that…… The real Sophie Scholl.

1943 Munich. The White Rose is a clandestine group of students, whose purpose is to present to the German people, an alternative way of bringing the war to an early end. They produce leaflets which they shower down like confetti on to their fellow students, but as you would expect, they are quickly rounded up, interrogated and put on trial. The film tells the true story of Sophie, her brother Hans and their friend Christopher Probst. Notwithstanding the Nazi horrors, the German Civil Service four years into the war, was still scrupulously keeping detailed records of all matters legal, and it is these documents discovered in an archive in the former East Germany in 1990 that form the basis of this extraordinarily authentic film. The film focuses on Sophie’s last six days. Clearly it is an extreme situation in which we become acquainted with her character, her past and the ideas of The White Rose. The film uses the archive material of the interrogation to great effect. The interrogator Robert Mohr incredibly believed that Sophie was innocent. For 5 hours she listened to the highly experienced official neither batting an eyelid, nor hesitating for a moment. An extraordinary achievement. Even when incriminating evidence was found against her after a search of her apartment, she continued to deny any involvement. It was not until she was confronted with the confession of her brother Hans, that she admitted to being involved. Even at this late stage she is offered a chance to save her neck. All she had to do was blame the others. As the archive reveals she declined to take the offer insisting that she was involved and proud to have been so. Thereby of course she was signing her own death warrant. From then on, Sophie tries to protect her friends and convince the official that The White Rose whose leaflets gave the impression of coming from a large organization, instead consisted solely of herself and her brother.

Tom Cruise as Von Stauffenberg.

Robert Mohr it turns out was a passive collaborator who upheld the laws no matter who passed them. Such people were in denial with regard to the events transpiring at that time, and yet here he was

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film

Blood Judge Roland Freisler. offering this 22 year old woman a way out. How could this be? One theory is that Mohr had a son of a similar age to Sophie who had just been sent to the Eastern Front. Sophie, Hans and Christopher are allocated lawyers for their forthcoming trial. Bizarrely, the lawyers seem more scared of the events than their clients, and they have good reason to be so. The trial will be conducted within a few days by the infamous blood judge Roland Freisler, who would gain even greater notoriety the following July when he officiated at the trial of the conspirators who attempted to blow up Hitler. He is distinguished by his absence in the recent Hollywood film Valkyrie where Tom Cruise plays Von Stauffenberg the leader of the plot. Notwithstanding the resources of Tinsel Town, they no doubt felt they could not reproduce anything as horrific as the flickering newsreel footage of the real-life Freisler in full flow as he harangues the pitiful plotters. Their ashen faces said it all.

Julia Jentsch as Sophie Scholl.

In the wink of an eye, the three defendants are facing the dreaded Freisler. Christopher Probst with the support of Sophie & her brother Hans, distances himself from the ideas of The White Rose, since he does not wish his three children to grow up without a father. Hans, on the other hand, a war veteran unlike Freisler, heroically argues full on against the Nazi stooge. And then there is Sophie whose case is more about right and wrong, and courageously challenges Freisler to the very end. Just prior to their execution a kindly guard allows the threesome to meet up for the last time to share a cigarette. With the smoke swirling around them the scene evokes a sense of surreal serenity. One cannot but admire these splendid young people standing up for what they believed, no matter what the consequences, whilst at the same time, it is taken as read that audiences will find themselves questioning what they would have done in a similar situation. As a lawyer, one is appalled at the sorry state of the German legal system under the Nazis. Monstrous judges, terrified lawyers, absence of juries, etc…... But that being said, it didn’t all happen overnight. By 1943, the Nazis had been in power for 10 years, during which time they had slowly but surely dismantled a perfectly decent legal system with the result that defendants had ended up with virtually no rights at all. Whilst it would be invidious to compare Germany then, with the UK now, I still can’t help but have concerns with the way the wind is blowing. There won’t be many tears being shed in Downing Street with the closing down of the human rights chambers, Tooks Court, due to the legal aid cuts, although that being said at least people will have heard of Michael Mansfield QC. On the other hand how many people have heard of the thousands of lawyers who will no longer be able to provide a legal service because their firms have simply had to close down. Yes Sophie Scholl should be obligatory viewing for all law students like Kelly, as it not only tells an absorbingly true story about courageous young people in a horrific situation, but it also gives us a peep into our legal future if we are not very careful.

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probate

Bernard Matthews –

will construction and the Doctrine Election – Food for thought for estate planning lawyers

Scarf v Matthews [2012] EWHC 3071 (Ch) The above case was handed down in September of last year but deals with a number of points relevant to private client practitioners of which it useful to have a reminder. Given the diversity of clients using legal services in south London, many of whom have international connections, the case has relevance in particular to south London lawyers. Estate planning forms a significant part of many a solicitor’s practice, in small firms especially. It is also a discipline in which a lot can be at stake. It is therefore important to consider what the effects of assets which clients own abroad might be, and to seek appropriate specialist advice.

Facts of the Bernard Matthews Decision Bernard Matthews will be a familiar name to many. He died in November 2010 leaving assets in England and France. He was survived by his wife (from whom he was separated but not divorced); his long-term cohabiting partner of 20 years, Odile Marteyn; one natural son (whose mother was neither the deceased’s wife or Ms Marteyn; and three adopted children (whom he had adopted with his wife). His estate at first glance appeared relatively straightforward:

By two French wills he left his moveable and immoveable French estate to his partner, Ms. Marteyn. That estate consisted of some cash and a villa in St. Tropez worth some €15 million. Under his English will, there were a few pecuniary legacies (including a gift of £1 million to his partner) and the residue was left to his natural son, Frederick, subject to the estate bearing all ‘taxes arising as a consequence of [the testator’s] death’ in both England and France. (In France, the beneficiary receiving the property is personally liable for the inheritance tax arising on it.) The adopted children were to receive nothing. Mr Matthews left a letter expressing his wishes and reasons in relation to his estate, including his wish that his adopted children respect his wish that Ms Marteyn inherit his villa, notwithstanding the French rules of forced heirship. His adopted children, however, decided to go against their father’s wishes and to enforce those rights. In addition to enforcing their rights in France, the adopted children also sought to claim that the English estate should bear the inheritance tax which arose in respect of their shares in that property. This left Ms Marteyn with just 25% of the value of the villa. The executors of the estate applied to the Court to determine whether the English children could claim the tax from the English estate.

Doctrine of Election Ms. Marteyn, who was unhappy with the fact the adopted children were not following their father’s express wishes, was also unhappy that they were seeking to claim inheritance tax on their shares on top from the estate. All parties agreed that the clauses in the will directing the payment of taxes arising from Mr Matthews’ estate in England and France acted effectively as a legacy of a sum equal to that tax. It was also agreed that the English and French wills were all to be read together as one testamentary disposition. Ms Marteyn contended that in these circumstances, the doctrine of election applied such that the adopted children could not go against the wishes of their father in France and benefit from the “legacy” under the English will.

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probate In Codrington v Codrington ((1875) LR HL) the principle of the doctrine of election was summarised to be, “an implied condition that he who accepts a benefit under an instrument must adopt the whole of it, conforming to all its provisions and renouncing every right inconsistent with it” (emphasis added). Ms. Marteyn contended that the adopted children, if enforcing their rights in France, should be ordered to compensate Ms Marteyn for her loss of the shares of the French villa of which the deceased could not freely dispose, up to the value of the “legacy” they were to receive under the English Will, i.e. their French tax liability. This amounted to over €2 million. It was argued on behalf of the English children that the doctrine did not apply because the children did not have a choice: if they gave up their forced heirship rights in favour of Ms Marteyn, then no tax liability would fall on them and therefore they could not be said to have received a “legacy” under the English. However, the Deputy Judge hearing the case found that the doctrine operates to oblige a beneficiary to compensate, even if no election is possible.

Construction of the will Notwithstanding the deputy judge’s comments, he decided the case on the basis of interpretation of the will, applying principles used in the interpretation of contracts. The judge ruled that after the clause in the will referring to “[taxes] payable... in consequence of [the testator’s] death” should be inserted “by the executors or by any beneficiary under the testator’s wills.” This was on the basis that, taking into account the terms of the will and the background to the document (as one would in a construction argument) the additional term is implied where “the court is sure that this is what the parties would have provided expressly if they had thought the issue through” The deputy judge was clear that Mr Matthews could not have intended his children to have their French tax liability paid from the English estate, as this liability would only be incurred by the children acting contrary to his wishes, by exercising their rights in France – which he had expressly requested them not to do.

Lessons to be learned from the case While the Bernard Matthews case dealt specifically with two discrete points of law, lessons can also be taken from the facts surrounding the case. In particular, the case shows that when giving estate planning advice to a client who has foreign assets, it is essential that appropriate advice be sought as to how that jurisdiction will treat those assets on death – even if the client appears to be domiciled in England and Wales. Where dealing with clients who have assets in civil law jurisdictions such as France or Germany, while it may not be possible to circumvent forced heirship rules altogether (for example, in France, such rules are considered to be public policy) it may be possible to mitigate the effects, for example, it may be possible to compensate reserved heirs out of other assets. Again, specialist advice will be required.

To disregard rules of forced heirship in their entirety is to open oneself up to unintended consequences – particularly if the testator is not married and / or has children from a previous relationship. In particular, those whom a testator may wish to benefit (such as in the Bernard Matthews case) may not benefit nearly to the extent intended. It is to be noted as well that Regulation (EU) 650/2012 (Brussels IV) will come into force on 17 August 2015, relating to the jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. One of the elements of the regulation is that it will be possible to choose the law applicable to one’s succession. However, the UK has opted out of Brussels IV, although it has retained the option to opt in to the regulation should it choose to do so in the future. Furthermore, reference will need to be made to the regulation in any event, in the context of an English estate with a European element, as this may have a bearing on the law to be applied to a succession of foreign assets, or to the validity of the testamentary disposition. On a more general note practitioners should take care to think through the consequences of terms they are drafting, and what different (and unintended) interpretations might apply. Any testamentary dispositions in England also need to be seen in the context of any other testamentary dispositions elsewhere in the world (a mistake which has occurred in the past is for an English will to revoke a previously made foreign will in respect of foreign assets). Untangling matters with a cross-border element can be time-consuming, stressful and expensive after a testator has died. Obtaining appropriate specialist advice on assets in foreign jurisdictions at the estate planning stage can save much of these costs. Gareth Ledsham, Senior Associate, Trust & Estates Disputes team, Russell-Cooke LLP.

This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke LLP. Copyright: Russell-Cooke LLP, September 2013.

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finance

Three ways to impress your bank manager Chris Marston, Head of Professional Practices SME Banking at Lloyds Bank, suggests some priorities for improved financial performance. The Legal Services Act is here, OFR is in place, and Alternative Business Structures are trading. These sideshows are over and it’s time to concentrate on having a legal business that is profitable and viable on a sustainable basis over the next several years. With that in mind, I’d like to suggest some practical steps you can take to help enhance the relationship you have with your bank, improve your prospects of obtaining the finance you need to support your business and ultimately help your firm to end 2013 in better shape than it is now.

Finally, do you benchmark your firm’s financial performance against its peers? There’s some excellent data available, not least the Law Society’s LMS Annual Financial Benchmarking Survey, sponsored by Lloyds TSB Commercial. For participants, this is free, and allows firms to compare their own performance against firms of similar size, or geography, or doing similar work.

Review and discuss your financial forecasts

All too often, fee earners regard the client as belonging to them personally rather than to the firm, and can be reluctant to refer clients to colleagues elsewhere in the firm – don’t they trust them?

When was the last time you asked for a meeting with your bank manager so that you could discuss your firm’s latest performance figures and your latest forecasts for the year? Often, banks have to chase for financial information, and customers sometimes consider this intrusive.

There are some great Customer Relationship Management (CRM) software packages out there, and using these effectively can help capture client information, key future events and dates and thereby form the basis for contact programmes. Clients are impressed when you approach them proactively, and it’s surprising how often a legal need arises at that point or shortly thereafter. This approach works for business clients as well as for individuals.

Let me offer a different view on this. Good management information can allow you to create a dashboard of all key performance measures in your business and help to keep you on course. Without this, it’s a bit like pilots flying without instruments – it could end in disaster! Your accountant can help if you don’t have the expertise in the firm to do this yourselves, but the real benefit of good financial information is that you can identify at an early stage what your finance needs are going to be. Banks are more likely to support a business with sound financial information than one relying on instinct. A review of your financial outcomes and forecasts may also open up some ideas for improvement. For example, do your invoices ask for payment in 30 days? Why not 14 days, 7 days or even ‘by return’? Could you get paid quicker by accepting credit card payments? Would your clients settle faster if you were to email invoices rather than post them? Who chases outstanding bills, and do you allow fee-earners to stall that process?

Get better at cross-selling Most solicitors provide great service to their clients and resolve their legal problems. However, many fail to spot opportunities to do more for those clients - either now or in the future. Even though it’s generally accepted that a satisfied client is more likely to want to do more business with you, many of our solicitor customers feel more comfortable spending money on marketing activity directed at strangers than they do on working more closely with existing clients.

Of course people naturally focus on what gets measured, and this means you’ll need to give some thought to your performance management process. If you are only measuring chargeable hours and recovery, then this could mean that there’s little incentive for people to do what’s ultimately right for the client and for the firm. For a practical insight into how banks approach this subject, talk to your bank manager. For years, banks have used systems to ensure we do all we can to do more business with existing satisfied customers.

Explore your client account interest policy The SRA Accounts Rules require you to set an interest policy and communicate it to your clients, but have you made any changes to the model that was in place before the new SRA Handbook? Many firms have retained the ‘old’ rule; sometimes because they believe it is fair and reasonable, but more often because it’s just easier to maintain the status quo. Should you review the ‘de minimus’ figure, express a rate or even a set of tiered rates? Interest rates are historically low at present, and you might contend that there’s nothing to be gained by making a change. The counter argument is that changing now would bring benefits when rates start to rise again. And another question: do you run designated accounts and if so why? Since the requirement for controlled trusts to be kept separate was removed, the only reason for maintaining a designated account is the client’s insistence. Monies held in a general client account present an opportunity to generate an interest income while meeting your obligations to your client under the terms of your interest policy. It is likely that your practice management software can make all the calculations for you, but if it won’t, or you prefer to have bank involvement, we can provide a virtual client record within a general client account that is entirely compliant with the Accounts Rules and which allows you to provide transaction data to your client. Chris Marston, Head of Professional Practices, SME Banking at Lloyds Banking www.lloydstsb.com/solicitors

The Bill of Middlesex