Contents
CONTENTS PUBLISHER Benham Media 4th Floor, Orleans House, Edmund St, Liverpool, L3 9NG 0151 236 4141 Tel: Fax: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com
ADVERTISING AND FEATURES EDITOR Anna Woodhams
PRODUCTION MANAGER Fern Badman
Introduction 4 4 5
LIST OF OFFICERS 2013 APPLICATION FOR MEMBERSHIP/RENEWAL PRESIDENT’S REVIEW News
6 7 8 10 12 14
COUNCIL MEMBER’S REPORT PROGRAMME OF CPD EVENTS 2013 ARE YOU MISSING THE TALENT? SLLS AND JLD SPORTS QUIZ THE 11TH ANNUAL LONDON LEGAL WALK NEW WEBSITE AIMS TO CLOSE GAP BETWEEN PROFESSION AND PUBLIC Human Rights
ACCOUNTS Joanne Casey
16 MEDIA No. 1313
PUBLISHED June 2013 © Benham Publishing Ltd
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.
Family Law 12
TERMINATION OF PARENTAL RESPONSIBILITY Practice Management
20 23 24 26 27 28 29
“YOUR BANK SHOULD BE PART OF YOUR BUSINESS” DISCOVER THE AFFORDABLE ALTERNATIVE TO EXPENSIVE ONLINE INFORMATION SUBSCRIPTIONS ON THE UP THE UK’S LARGEST DOG WELFARE ORGANISATION QUILL PINPOINT RESEARCH DEFIES NEGATIVE INDUSTRY TREND ARE YOU READY FOR A WORLD THAT NO LONGER EXISTS? BRING YOUR OWN TO WORK Private Client
30
DISCLAIMER The South London 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.
COLOMBIA AT A CROSSROADS?
LASPO AND THE ATTACK ON FUNDING Legal Education
31 32
CUT THE GAP CLINICAL LEGAL EDUCATION - FORM AND FUNDING Probate
33
MOVING WITH THE TIMES WITHOUT LOSING SIGHT Junior Lawyers Division
Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.
34
THE EVER-CHANGING FACE(BOOK) OF FAMILY LAW The Clapham Omnibus 3
Introduction
OFFICERS President
Vice-President
Council Member
Stephen Whitaker 020 7940 4000 Tel: e-mail: stephen.whitaker@anthonygold.co.uk
Robert Hush 020 7815 6725 Tel: e-mail: hushr@lsbu.ac.uk
David Taylor Tel: 020 7228 0017 e-mail: dxt@hanne.co.uk
Gareth Ledsham 020 8394 6413 Tel: e-mail: gareth.ledsham@Russell-Cooke.co.uk
Lawumi Biriyok 020 7237 4499 Tel: e-mail: birisho@aol.com
Zara Ronchi Tel: 07949 114575 e-mail: zararonchi@btinternet.com
Treasurer
4 The Clapham Omnibus
Hon. Secretary
Magazine Editor
Web Address: www.southlondonlawsociety.co.uk
Introduction
PRESIDENT’S REVIEW So I return from an all too brief holiday to find that plans are afoot for Courts in England and Wales to be wholly privatised under revolutionary plans that would end the system that has existed since Magna Carta.
The proposal is to establish the Courts Service as a commercial enterprise with Court Buildings and their staff in the hands of private companies. It is mooted that hedge funds might be encouraged to invest. It is believed that the idea might save the Ministry of Justice £1billion so it is strongly backed by Chris Grayling, the Justice Secretary. So yet another fundemental and serious reform perhaps, this time a perceived challenge to the independent administration of justice. Court venues are of course already hired out for receptions but the private sector could be expected to market their potential far more ruthlessly. Imagine the Judge being denied access on a Saturday for an emergency injunction because of a pre-planned wedding reception! Ludicrous perhaps but certainly possible if these proposals take shape and if we are going to oppose them we will have to act quickly because I believe the shake-up could happen as soon as the Autumn. The Jackson reforms and linked cuts in civil Legal Aid are, of course, now fully implemented. Now we are in full swing with opposing the Government’s proposals for reforming criminal Legal Aid. My committee colleague Sara Chandler, herself a former President of SLLS, drafted a paper in response to the Ministry of Justice Consultation which I was pleased to submit on the Society’s behalf. Obviously we remain deeply concerned that the proposals will reduce access to quality advice and representation for those members of the public who need assistance in the criminal justice system. This is particularly true, we feel, for specific ethnic groups within our South London community. So here too we have grave concerns that spending cuts will have far reaching consequences for the profession and access to justice. At the very least, the proposed timetable for implementation will not allow South London firms the time to restructure, form consortiums or obtain investment funding. Members of my Firm joined the Demonstration to Save Justice outside the Ministry of Justice on Tuesday 4th June. Indeed, one of my partners was photographed in The Times holding her banner aloft!
COPY DEADLINES
Autumn 2013 Issue Spring 2014 Issue Summer 2014 Issue
30th August 2013 4th January 2014 2nd May 2014
Members wishing to submit editorial please contact us before copy deadline. Anyone else wishing to advertise or submit editorial for publication in the Clapham Omnibus please contact Anna Woodhams, before copy deadline.
Email: Tel:
anna@benhampublishing.com 0151 236 4141
South London criminal solicitors please be aware that we are doing what we can to fight your corner. It would be good to have some views from the coalface in our Journal so please contribute to our next edition in the Autumn. On a lighter note, you will see in this edition of the Journal reports on some good things that have been happening. On Monday May 20th, SLLS participated in the London Legal Support Trust Walk and there is a report in the Journal. The LLST is an extremely worthwhile cause supporting as it does the provision and funding of specialist legal advice through Law Centres and Advice Agencies. As you will see, we are able to channel a proportion of the monies raised to the Law Centre at London Southbank University and the Legal Advice Centre that we support in Ndola through our work with the Law Association of Zambia. On Thursday May 9th, in conjunction with the Junior Lawyers’ Division, we hosted a Charity Sports Quiz which was well supported and admirably compared by Mark Saggers of Talk Sport. Again, you will find a full report on the evening in this edition of the Journal and the beneficiary was Mark’s chosen charity Anna’s Hope. On a personal front, I have been privileged to be invited and to represent South London Law Society at the annual dinners of City of Westminster & Holborn Law Society and West London Law Society. I thank my fellow Presidents Melissa Hardee and Shona Perkins for their kind invitations and hospitality. Two terrific evenings at two prestigious venues – The House of Lords and The Royal Air Force Club. It is coming around to that time of year when we start to think about organizing our own annual dinner in October so please watch this space for the announcement in this regard. I take this opportunity to wish you all an enjoyable Summer. Stephen Whitaker President The Clapham Omnibus 5
News
COUNCIL MEMBER’S REPORT Competitive tendering for legal aid.
Key points that emerged from the debate included: • the importance of making principled arguments about the proposals’ impact on access to justice • the particularly adverse effect of the proposals on smaller firms (and on ethnic minority solicitors since they are disproportionately-represented among such firms) • the serious problems of financial viability and geographical coverage in the proposed business and service delivery models
David Taylor, Council Member Partner in Hanne & Co, Clapham Junction. Graduated from the University of Kent at Canterbury in 1976 with a degree in Social Policy & Administration. He then joined the Citizens Advice Bureaux service, working in Sheffield & London, specialising in welfare benefits and employment. He was the manager of Battersea CAB for 10 years. He joined Hanne & Co in 1988 and was admitted as a solicitor in 1994. His practice is in employment and regulatory law. He is a member of the Employment Lawyers Association, Association of Regulatory and Disciplinary Lawyers and the Industrial Law Society. He is an accredited mediator through the Centre for Effective Dispute Resolution. He was president of South London Law Society from 2003 to 2006.
As you would expect a significant period of time was taken up with a debate on the government’s plans for competitive tendering for criminal legal aid. The government’s intention to save over £200 million is clear. However, the proposals and implementation timetable are, we believe, economically unviable, logistically unachievable and – in respect of the abolition of ‘own client’ work – potentially unlawful. We have issued our own consultation and are working with members and engaging with government to influence the proposals as positively as we can, in the interests of the public and the profession. 6 The Clapham Omnibus
• that abolishing ‘own client’ work is both potentially unlawful and a breach of clients’ human rights • the need for practitioners to highlight significant local issues to the Ministry of Justice as the Society lobbies on the overall principles This is a battle we must fight. It is an attack on the rule of law and the undermining in general of the legal profession by another step down the road of commoditisation of legal services with little of no regard to professional ethics or the interest of clients.
OTHER BUSINESS
FINANCIAL DIFFICULTIES FACING OUR PROFESSION The Law Society has sounded out all the major clearing banks, following some recent high profile cases involving administration, intervention or financial failure. The banks with whom the Society has so far spoken report no reduction in appetite for lending to the sector or any loss in creditworthiness. However, the Society remains focused on providing support and advice to those firms worst affected, particularly in terms of an accessible suite of key financial measures. This has included the recent launch of an ‘emergency’ web page offering information and guidance for firms and their employees.
APRIL 2013 “REFORMS” OF LEGAL AID
Following the discussion at the last Council meeting, we are improving existing advice and support materials. In particular we are producing: • guidance on ‘different ways of working’ • an updated toolkit for legal aid practitioners • guidance to firms interested in setting up duty solicitor schemes in family courts.
LOBBYING
We have successfully lobbied parliamentarians and have been instrumental in amending a number of pieces of legislation. In the Justice and Security Bill we restricted the government’s proposed use of closed material proceedings. We also eliminated the government’s proposal to remove strict liability in health and safety cases in the Enterprise and Regulatory Reform Bill.
DIVISIONS
The Junior Lawyers’ Division (JLD) annual conference and ball took place with great success on 27 April 2013. This was followed by a JLD national committee meeting which, amongst other business, reviewed progress on producing guidance for junior lawyers affected by firm closures. The Small Firms and In-House Divisions continue to develop: the official networking launch of the In-House Division on 20 March 2013 was attended by over 80 in-house members and had guest speaker Richard Tapp, company secretary and head of legal services at Carillion.
EVENTS
The annual conference for Presidents and Secretaries of local law societies was held on 10-11 May 2013. A number of other events are also being developed, including the Family Section and Property Section annual conferences. The annual Risk and Compliance Conference, attracting almost 300 delegates, was held on 15 March, and included the successful launch of the Law Society Consulting service.
News
SOUTH LONDON LAW SOCIETY & LONDON SOUTH BANK UNIVERSITY
ONLINE CPD
The CPD centre now has almost 23,000 members, an increase of over 20 per cent from last year. A further 38 webinars are now listed, and two new learning modules (on anti-money-laundering and developments in conveyancing law and practice) will be launched shortly.
PROGRAMME OF CONTINUING PROFESSIONAL DEVELOPMENT EVENTS 2013 Seminars start at 6.30 pm (unless otherwise indicated). Refreshments are available from 6.00pm.
Please contact me with any issues that you wish me to take up at dxt@hanne.co.uk.
All seminars attract 1.5 CPD points. Seminars are held in the London South Bank University Keyworth Centre. See
David Taylor
PAROCHIAL CARE PRACTICE ADVICE SERVICE
Tel: 0870 606 2522 practiceadvice@lawsociety.org.uk This provides advice from experienced solicitors on legal practice issues including conveyancing, costs, probate, Law Society policy and practice notes including anti-money laundering. Lines are open from 9:00 am to 5:00pm Monday to Friday.
LAWYERLINE
Tel: 0870 606 2588 lawyerline@lawsociety.org.uk
http://www.lsbu.ac.uk/about/maps.shtml for a map and directions to the Keyworth Centre, LSBU. Seminars are free to SLLS members. Seminars cost ÂŁ50 for non-members. Non-member Firms booking more than 1 place are entitled to a 50% discount on all additional bookings. Places on all CPD seminars can be booked with Andy Unger via email ungerad@lsbu.ac.uk
DATE
Tuesday 8th October 2013
TIME
6.30pm
TOPIC
Criminal Law Update
LECTURERS
Joel Bennathan QC, Barrister at Tooks Court
This provides advice on client care and complaints handling. Lines are open from 9:00 am to 5:00pm Monday to Friday.
Imran Khan, Solicitor, Imran Khan & Partners
Visiting Professors in Law at LSBU
PASTORAL CARE HELPLINE 020 7320 5795
This provides personal, financial, professional and employment advice. Lines are open from 9:00 am to 5:00pm Monday to Friday.
JLD HELPLINE 0800 085 6131
Pastoral care for junior lawyers. Lines are open from 9:00 am to 9:00pm Monday to Friday.
DATE
Tuesday 22nd October 2013
TIME
6.30pm
TOPIC
Family Law Update
LECTURER
Robert Hush, Solicitor, Vice President SLLS The Clapham Omnibus 7
ARE YOU MISSING THE TALENT? News
Firms are missing out on legal talent, is the conclusion reached in the wake of the Milburn Report, which highlighted the need for the professions to contribute to widening participation, increase the diversity of the professions and to provide access routes where there have been none. The South London Law Society has partnered up with LSBU to host law students in a shadowing scheme. Law Department staff are active members of the South London legal community and seek opportunities for students to shadow practitioners and to learn through observing about the world of legal work. The University student population is largely from South London, and the scheme is an important step forward in enabling access to the profession for students who may be Professor Sara Chandler 020 7815 5788 sara.chandler@lsbu.ac.uk
the first member of their family to attend University, and do not have contacts to help them get experience. LSBU has a strong tradition of training students in legal skills, with a special module named: “Working in the Law”. 33 students are selected for the Legal Advice Clinic each
London South Bank University is a special place, with 120 years of dedication to our surrounding community.
year and trained to advise clients on social welfare law under the supervision of 3 solicitors. South London firms now have an opportunity to enhance their CSR activities and to
Vocational training has an added
participate in the Law Society’s Future Lawyers’ Project. Students will be well prepared
significance for our staff and students
before they are placed, and in each case the University will ensure that we match the
who study and aim to practice in the local
firms’ or organisations’ needs with those of a student.
boroughs in which the University is firmly
The scheme is flexible, so that a student could come for 5 days (in one week) or over a
embedded. Many firms will remember the
period of weeks. You can decide what the student does, in addition to shadowing, if
opening of the University’s Technopark in
you wish.
the 1980’s and the flourishing partnership
Please contact me, sara.chandler@lsbu.ac.uk if you are interested or telephone me
with local businesses which was
on 020 7815 5788 on Tuesdays.
established then. LSBU is a thoroughly
Don’t miss out on the talented students who are ready, willing and able to serve the
South London resource. Most of our
community in the provision of legal services as the future lawyers of South London. All
students are South London born and
they need right now is work experience, shadowing or internships. You can do
educated. They have a special
something about that, and make a difference.
commitment to their future professions with a wealth of experience and knowledge about the communities in which they live and went to school. Yet these talented individuals are being passed over because they do not have traditional backgrounds still expected by the majority of employers. Getting an opportunity to do work experience, shadowing or internships is a first step towards future employment. However, invisible barriers exist, which we can help to bring down. 8 The Clapham Omnibus
LSBU student advisers in the Legal Advice Clinic
SLLS AND JLD SPORTS QUIZ News
Ten teams of lawyers raced to be crowned Sports Pub Quiz winner at the Alexandra Pub in May. Lawyers from South London firms, chambers, and Southbank University competed over eight gruelling rounds, which included questions about the London Olympics, picture rounds, a music round and, the quiz equivalent to marathon running, anagrams! Mark Saggers of Talk Sport Radio presented the quiz and livened up the questions with his intimate knowledge of sports gossip and personalities.
As you might expect from a Quiz for lawyers, the SLLS President had to decide a number of appeals and challenges on the right answers to questions and the awarding of marks. Dust had settled, the silver went to Lambs to the Slaughter (Lamb Chambers) and Universally Challenged (BGW McDaniel Chartered Surveyors and Wallace LLP Solicitors), by a whisker, claimed gold. The event raised a total of £694 for Mark Saggers’ chosen charity – Anna’s Hope. Special mention and our thanks to the event sponsors, Wesleyan for Lawyers and H.W Wood. 10 The Clapham Omnibus
The compere, Mark Saggers of Talk Sport Radio, and the President, Stephen Whittaker, announce the winners.
News
The Clapham Omnibus 11
THE 11TH ANNUAL LONDON LEGAL WALK
TOOK PLACE ON MONDAY 20 MAY This year’s walk looks likely to beat all records, with more participants (nearly 500 teams; over 7,500 walkers) and more money raised than ever before.
Fortunately the rain held off and lawyers, legal advice workers, students and supporters enjoyed a two hour stroll through central London, starting at the Royal Courts of Justice, weaving their way along the river, through Green Park and Hyde Park, finishing back at the Law Society in Chancery Lane. Walkers were joined by senior figures in the legal profession, including the Lord Chief Justice, the Master of the Rolls, the President of the Supreme Court, the Attorney General, the Director of Public Prosecutions, and the President of the Law Society. The walk was in aid of the London Legal Support Trust. The Trust was established in 2004 as an independent charity to raise funds for free legal advice services in London and the South East. Working with the Access to Justice Foundation, the Trust supports the provision of specialist legal advice through not-forprofit law centres, advice agencies and citizens advice bureaux by providing them with grant funding and other forms of support. You can read more about the Trust here: http://www.londonlegalsupporttrust.org.uk. London South Bank University (LSBU) organised a team of students, staff and supporters who walked to raise funds for the Trust and our own LSBU Legal Advice Clinic (LAC). The LSBU LAC, which has helped more than 600 clients since opening in September 2011, provides a free face-to-face community advice service, staffed by trained law students and supervised by experienced, practising social welfare law solicitors. You can read more about the LAC here: http://www.lsbu.ac.uk/ahs/ departments/law/legaladviceclinic.shtml The walk could not have come at a better time for cash-strapped legal advice agencies and their clients. On 1st April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came into force. At a stroke all debt, employment, welfare benefits and education advice was removed from the Legal Aid Scheme and publicly funded housing, family and immigration advice has been restricted to all but a handful of cases. 12 The Clapham Omnibus
Law centres, citizens advice bureaux and other charitable organisations can’t plug the gap left by these cuts. It’s just not possible (you can read more about what I have to say on the role of student led university based legal advice clinics post LASPO elsewhere in this issue of the Clapham Omnibus). But what it does mean is that the work such organisations do is now more vital than ever; which is why the London Legal Walk and the money it raises is so important. So thanks to everyone who took part and to all their sponsors. The date for next year’s London Legal Walk is already fixed – Monday 19 May 2014. Put it in your diary now!
Alan Russell is a Law Lecturer / Solicitor at London South Bank University and Director of the LSBU Legal Advice Clinic
NEW WEBSITE AIMS News
TO CLOSE GAP BETWEEN PROFESSION AND PUBLIC
A new web app called Lawyerly, which immediately connects solicitors with potential clients wherever and whenever they need advice, was launched in mid April. “Essentially, Lawyerly is a highly-localised and specialised search engine” said company founder Matthew Cavanagh. “Customers can find the best solicitor closest to them that suits their needs, and with our rating and review system they can see at-a-glance what others think of that firm, too.”
With the introduction of Alternative Business Structures, the Jackson reforms and LASPO it is more important than ever for firms to establish trust and bolster their reputations in the eyes of potential clients.
Matthew Cavanagh Company Founder www.lawerly.co.uk
"...IT'S MORE IMPORTANT THAN EVER FOR FIRMS TO ESTABLISH TRUST AND BOLSTER THEIR REPUTATIONS..."
The app, which is compatible with smartphones, feature phones and tablets, as well as traditional computers, will be followed by dedicated Android and iOS apps in the next few weeks. These standalone offerings will feature everything available on the web app plus a system whereby customers can send videos, photos and audio supporting a claim directly to a qualified solicitor.
“The app effectively acts as a seamless link between someone who needs immediate advice and a solicitor equipped to act in that branch of law” Cavanagh continued. The service, which will be free to use, is in short a gateway for the man on the street to access legal advice on his terms, without being pursued by call centres.
“The app is foolproof and has benefits for both user and lawyer. The client can reduce the likelihood of any ambiguity at a time of high stress, while the solicitor is presented with a customer at a very early stage in the legal process.”
“From the very start of this development, the objective was to reduce any friction in the business process. Trust, confidence and results are what this app will breed” said Mr. Cavanagh.
Lawyerly is now available to solicitors to list their practices for free (with extended features available in the coming weeks via a monthly subscription). The directory goes live to the public later this month. Its launch and development can be followed on Twitter: http://www.twitter.com/lawyerlyuk and to find a solicitor, users should visit the website at
www.lawyerly.co.uk 14 The Clapham Omnibus
COLOMBIA AT A CROSSROADS? Human Rights
An international delegation of lawyers from 7 different jurisdictions visited Colombia at the invitation of the Colombian human rights lawyers’ association, ACADEHUM, in August 2012. Among the 45 lawyers were three from South London: Sue Willman, partner at Deighton, Pierce Glynn, Neena Acharya, formerly of Wesley Gryk Solicitors and Prof Sara Chandler of London South Bank University Legal Advice Clinic.
Since 2008 a joint delegation of the Law Society, the Bar and the CILEX have supported human rights lawyers through an international network known as the Colombia Caravana (Caravana Internacional de Juristas). Colombia is the riskiest place in the world for human rights lawyers, who face death threats, attacks and assassinations every day. The Caravana plays the role of international monitor, and when lawyers are threatened we press the Colombian government for protection. One of the most impressive comments made to the international lawyers by our Colombian colleagues is that the Caravana’s actions save lives. There is a group of volunteers known as the Caravana Advocacy Team who draft letters which are sent to Colombian President Santos. Regrettably there have been many letters sent in 2012. Between 11th January and 6th 16 The Clapham Omnibus
June 12 lawyers were killed, and while we were in Colombia we were told of the deaths of a Judge killed in July and a lawyer killed in the first week of August. The risks for human rights lawyers are so high that Peace Brigades International provides approximately 60 volunteers who accompany human rights defenders in their daily work. PBI set up an Alliance for Lawyers at Risk in 2010 which has brought together leading members of the legal profession in the UK. At a PBI conference in 2011, many concerns were raised about the lack of awareness of the United Nations principles on Business and Human Rights (known as the Ruggie Principles). A significant number of mining interests in Colombia are owned by transnational companies. The UN principles put an obligation on Governments and on companies to protect, respect local people and remedy where activities of businesses have caused harm to communities and the environment. The Alliance for Lawyers at Risk decided to send a small delegation with the Caravana to meet with lawyers, human rights defenders, leaders of the afro Colombian and campesino (farming) communities, and indigenous peoples. The members of this delegation were: Sue Willman (leader), Neena Acharya, Mark Cunningham QC (commercial silk from Maitland Chambers) and Professor Sara Chandler (London South Bank University). Communities affected by the processes of large scale extractive, agribusiness, and infrastructure projects have to enter into dialogue with states and businesses in order to secure their rights. This presents significant challenges. The state has to fulfil its
Human Rights
obligation to carry out a meaningful process of free, prior, and informed consultation and seek consent to developments, especially in a context of ongoing conflict, displacement, pressure from armed groups and companies. Multinational companies and their subsidiaries often are implicated in human rights violations, or motivated out of bad faith to undermine the rights of communities. In a hostile climate of conflict, poor infrastructure and lack of state support for small scale agricultural development, it is difficult to ensure social cohesion and sustainable development. In order to research the impact of mining on the Colombian people, four areas were visited and local lawyers who represent the people affected were interviewed. After hearing the accounts of paramilitary activity in regions where thousands of people have been displaced from their land in order to make way for the extractive industries, including the assassination of leaders of farming communities, and trades unionists in mining and rural industry. The lawyers introduced us to some of the people affected. Sue and Neena visited the Cerrejon Mine in Northern Colombian and met leaders of indigenous peoples who are being relocated by the Cerrejon company. Sara and Mark met leaders of rural communities in Buacaramanga and Yopal. As we arrived the announcement of peace talks with the FARC heralded a new attempt to bring the 5 decades of conflict to an end. The conflict takes a high toll on human rights defenders, and the evidence we heard from the lawyers and judges we met demonstrates the high level of risk they face. After receiving a welcome in Bogota from our hosts, the delegation divided into groups and visited several regions including: Medellin, Cali, Bucaramanga, Cartagena, Sincelejo, Yopal, and Narino. In each region we met local lawyers and judges, victims of para military activities including internally displaced persons, families of the disappeared, and families of victims of extra judicial killings who gave evidence to the delegation. In some regions delegates met the leaders of the local indigenous communities affected by violence from the army and para- militaries, and environmental damage to their ancestral territories, as well as members of the campesino communities and artisanal miners who have been forced off their land by para militaries. In most regions delegates met the local human rights ombudsman, the local police and army personnel. The Caravana found evidence of the continuing victimisation and stigmatisation of defence lawyers and read comments from Government members, including the President, which were critical of the work of human rights’ lawyers. We heard evidence of the threats received by lawyers, including contemporaneous examples of para military death threats by leaflets distributed in public naming individual lawyers. Lawyers’ professional duties and work for their clients is seriously affected by accusations of professional negligence, later proved to be spurious and untrue. The delegation requested permission to visit two lawyers who were held in prison, but due to the prolonged national hunger strike by prisoners protesting prison conditions, permission was withdrawn. In 2010, the Caravana lawyers met Yira Bolanos, lawyer who was imprisoned in June 2011. She was supported throughout her detention by Caravana members including a visit in 2011. Yira was released shortly before we arrived and spoke at the opening of the Caravana, on 26th of August in Bogota. The Caravana was given numerous examples of how the Justice and Peace Laws, and the Victims and Land Restitution Laws are having the opposite effect to that intended and are putting people at serious risk. We were given evidence of the killings of people
given the right to return to their land following application under the Land Restitution Law, who were killed by those currently occupying the land. Death threats to the lawyers representing people applying for restitution of their land, came clearly from para-militaries, many of whom are occupying the land that they took from the original farmers. Impunity remains a structural problem which directly affects the rights of victims. In meetings with the Colombian authorities the Caravana requested information as to what resources are dedicated to pursuing the perpetrators of killings, and in particular the murders of lawyers, and what protection is offered to those who are sent death threats. Delegates were given a document produced by the Fiscalia, the national prosecution service, which details the attacks, threats and assassinations of lawyers over a ten year period. Delegates were dismayed to read of 4500 such incidents, confirming the extraordinary risks Colombian human rights lawyers face every day. The Caravana has written to protest the deaths of 12 lawyers in the first six months of this year, calling for effective protection, investigation and prosecution. We watch as peace talks continue, despite the failure of the ceasefire, the Colombian army having launched two major attacks on the guerrillas. The crucial question for the international legal community is still access to justice and the defence of human rights in Colombia. Peace talks without considering the victims of the decades of conflict will not produce a firm foundation for the future. To date civil society leaders who work with victims have not been invited to participate in the talks. If the spotlight on the defence of human rights is lowered, those lawyers who strive for justice in Colombia will be even more exposed, and the poor, the dispossessed, the families of the disappeared and the dead, and human rights defenders in every community will have no recourse, and no access to justice. If you would like to support Colombian human rights lawyers, please contact: colombian.caravana@googlemail.com for details of events in London. The report of the 2012 delegation was presented to the international legal community on 21st May and is available on the website. Professor Sara Chandler Visiting Professor, London South Bank University Former President of South London Law Society The Clapham Omnibus 17
Family Law
CASE LAW UPDATE:
TERMINATION OF PARENTAL RESPONSIBILITY
In April 2013, in the case of CW v SG1, the Honourable Mr Justice Baker, sitting as a judge in the High Court, handed down judgment in a contested application by a child’s mother for an order terminating the father’s parental responsibility. This appears to be the first reported case on termination of parental responsibility since the case of Re P2 reported in 1995. Such applications are extremely rare but, given their serious nature, it is perhaps surprising that it has been almost 20 years since a reported case has provided guidance.
Pursuant to s4(3) of the Act the court may make an order under subsection (2A) on the application of any person who has parental responsibility for the child or, with the leave of the court, of the child himself,
settled by consent) and the mother cross applied to bring an end to his parental responsibility. At the same time she sought an order under s91(14) of the Act to the effect the father shall make no further application for contact or residence without first obtaining the leave of the court.
RE P (1995)
PRINCIPLES FROM RE P
birth certificate (only applicable to those registrations from December 2003 onwards3).
Prior to CW v SG, Re P, where judgment was given in December 1994, was the only reported case on termination of parental responsibility. In this first instance case, Mr Justice Singer provided guidance by way of setting out the factors to be considered when the court was asked to determine such an application.
Anna Johnstone is a committee member of South London Law Society and family law solicitor at Fisher Meredith LLP.
THE LAW
Provision for an application to discharge parental responsibility is contained within s4 of the Children Act 1989 (the Act). Of initial note is that this provision does not enable the court to terminate a mother’s or a married father’s parental responsibility. The court only has ability to discharge an unmarried father’s parental responsibility. As highlighted below this distinction was the subject of discussion in CW v SG. s4 (2A) of the Act enables the court to terminate parental responsibility when it has been acquired by an unmarried father by virtue of the signing of a parental responsibility agreement, the making of a parental responsibility order or the acquisition of parental responsibility by an unmarried father by way of him being named on the child’s 18 The Clapham Omnibus
The unmarried parents in Re P had one child (P); a girl who was born in March 1992. When the child was just six weeks old she was admitted to hospital suffering from serious injuries including fractures to her leg, fractures to one or more ribs, a fracture to the skull and extensive haemorrhages to her retina. The injuries appeared to have been sustained over a period of time and her condition was described by the court as ‘lamentable and life threatening’; it was reported that she would be permanently disabled both mentally and physically. Ultimately a care order was made in respect of P and, at the time of the reporting of Re P, she was said to be making good progress under the care of her loving foster parents. Very shortly after P had been admitted to hospital the mother entered into parental responsibility agreement with the child’s father, at that time she believed that he bore no responsibility for the child’s injuries. Subsequently, the father made admissions which led to his conviction in April 1993 for a number of offences under s20 of the Offences Against the Person Act 1861 and he received a total prison sentence of four and a half years which he continued to serve at the date of judgment in Re P. P’s father applied for contact with the child pursuant to s34 of the Act (later
Singer J observed that both wanting parental responsibility and exercising it was a ”laudable desire which is to be encourage rather than rebuffed”. He proposed that as a first principle parental responsibility once obtained should not be terminated “on less than solid grounds, with a presumption for continuance rather than termination”. Singer J observed that the ability to make such an application should not become a “weapon in the hands of a dissatisfied mother of the non-marital child”. Bearing in mind how unusual these cases appear to have remained, it seems this warning has indeed been heeded. When considering the circumstances in which a court should consider terminating parental responsibility, Singer J applied the criteria and considerations set out in established case law for considering an application for the making of a parental responsibility order4. He highlighted that paramount consideration had to be the child’s welfare and that the welfare checklist should be applied. He then applied the same key concepts that the court would do when considering the granting of a parental responsibility order namely evidence of attachment and a degree of commitment, and the presumption being that, all things being equal, an order should be made rather than being withheld. Perhaps not surprisingly, having provided an analysis of the facts, Singer J made an order terminating the father’s parental responsibility. He concluded that “to describe anything that the father has done in relation to this child as demonstrative of a commitment to her is an abuse of language” and observed that any degree
Family Law
of attachment that the child had to the father at 9 weeks old was now “purely theoretical”. Singer J noted that it was pertinent to consider, had an unmarried father not yet obtained parental responsibility for the child in question, what would the court’s response be to such an application. He observed that on the facts of this case it was difficult for the court imagine why such an order would indeed be made. Singer J observed that, if the local authority continued to share parental responsibility with the father, it would impose a “quite unrealistic demand” upon it when, pursuant to s33 of the Act, it should consider how to exercise its power to determine the extent to which the father may meet his parental responsibility for the child particularly given that all, including the father, had agreed that there was no question of direct contact in the foreseeable future or of the child being aware of information about him. Local authority solicitors will no doubt therefore be mindful of the potential benefits of an application under s 4(3) of the Act where the facts of a case seem to warrant such action.
CW V SG 2013
This case, another first instance decision, concerned the unmarried parents of a boy, D, born in 2004. Prior to D’s birth his mother already had 5 children. The police became involved in 2008 following allegations of sexual abuse by the mother’s two eldest daughters A and C against D’s father. D’s father eventually pleaded guilty to three offences of sexual assault of a child under 13, two offences of causing or inciting a child under 13 to engage in sexual activity, one offence of sexual activity with a child under 16 and one offence of causing a child under 13 to engage in sexual activities. He was sentenced to 48 months imprisonment and was released half way through his sentence in June 2011. During his prison sentence he had sought contact with D which had been refused by the mother. Following his release from prison the mother issued an application for termination of his parental responsibility. The father cross applied for a specific issue order requiring the mother to provide annual reports of D’s progress. On behalf of the father, submissions were made that Re P was distinguishable in both fact and law to the case in hand. The court considered the interesting question of whether Singer J’s guidance was indeed still applicable bearing in mind two important legal developments
since 1994. Firstly it was argued that, as demonstrated by the amendment to s4 of the Act whereby unmarried fathers can obtain parental responsibility upon being named on the child’s birth certificate5, Re P was an outdated case. It was argued that the importance of extending parental responsibility to unmarried fathers was now much more widely acceptable and therefore the court should be more wary about removing it. Baker J was not persuaded that the change in law should be interpreted as narrowing the scope of the court’s powers under s4(2A). In fact, on the contrary, it should be noted that parliament expressly extended the existing power of the court to terminate parental responsibility to include those fathers who acquired it by way of being named on the child’s birth certificate. Secondly it was submitted on behalf of the father that s4(2A) was incompatible with articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. These arguments were rejected by the court. Smallwood v UK (1999)6 was applied in which the court had found that there was no conflict with article 14 as “there exists an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to automatic acquisition of parental rights …….”. In terms of an article 8 argument, it is well established that where a parent’s right to family life is in conflict with the welfare of a child the latter consideration will prevail. CW v SG therefore confirms that despite the passage of time Re P remains good law. Baker J noted that whilst Re P is not strictly binding on the High Court, it is a clear authority which provides “unimpeachable principles” to be followed by the court when considering application of its power to discharge parental responsibility. On the question of fact, applying s 1 of the Act and the principles set out in Re P, Baker J made an order terminating the father’s parental responsibility. Baker J noted that although the father may have showed a degree of commitment to D whilst living in the household, that commitment was wholly undermined by his actions in relation to A and C. So far as attachment was concerned, whilst there may have been a degree of attachment in the past, this had not existed now for several years. Baker J concluded that it was “inconceivable” that parental responsibility would be granted to D’s father if he did not already possess the same.
Essentially, CW v SG confirms that, despite implementation of The Adoption and Children Act 2002 and the Human Rights Act 1998 and a wider acceptance of the rights of unmarried fathers, the principles set out in Re P still apply.
USE OF S4 (2A)
The first reporting of a s4(2A) case in 19 years is perhaps a helpful reminder to practitioners of the power of the court to terminate parental responsibility and verification that the principles of Re P still remain relevant today. No doubt there have been many unreported first instance decisions but just how rare these applications actually are remains unknown. The author recently acted for a mother on an unopposed application to terminate an unmarried father’s parental responsibility, that father was serving a long prison sentence for the attempted murder of the mother. In that instance the County Court had no difficulty terminating parental responsibility alongside the making of a s91 (14) order and a long term non-molestation order. Undoubtedly s4(2A) applications have no place in the ‘run of the mill’ cases. However one wonders if the lack of reported case law to date has perhaps discouraged the number of applications being made in situations where the interests of the child justifies such an extreme act as ending an unmarried father’s parental responsibility whether that be in a private or public law context.
FOOTNOTES 1
CW –v- SG [2013] EWHC 854 (Fam)
2
Re P (Terminating Parental Responsibility) [1995] 3 FCR 753
3
Following implementation of The Adoption and Children Act 2002.
4
Singer J referred to: H (Minors) (Rights of Putative Fathers) (No 2), Re [1991] FCR 361; sub nom Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151; [1991] 2 WLR 763; sub nom Re H and Another (Minors) (Adoption: Putative Father’s Rights) (No 3) [1991] 2 All ER 185.
5
Pursuant to The Adoption and Children Act 2002
6
Smallwood v UK (1999) 27 EHRR 155 The Clapham Omnibus 19
“YOUR BANK SHOULD BE PART OF YOUR BUSINESS” Practice Management
We sat down with Tim Wright, Finance Director at highly regarded commercial and private individuals law firm Penningtons Solicitors LLP. Penningtons are the 77th biggest law firm in the UK and the fastest growing by turnover in 2011/2012, a title they have continued to build on into 2013. “In my opinion, your bank should be part of your business. For us this doesn’t just stop at the day to day, we refer business to each other and organise joint social events outside work. Having previously banked with a high street bank, we have banked with Allied Irish Bank (GB) for 13 years and built a very strong relationship. It’s great to be able to pick up the phone and talk directly to our branch manager or discuss what’s coming up at our quarterly meetings.”
PROFESSIONAL INDEMNITY INSURANCE
“As with most firms, our annual indemnity insurance renewal comes up in October but we start the process at the beginning of June. Predominantly we would look to our specialist brokers to advise us on the best offer and then to our bank to provide us with the right loan product. Primarily, the most important aspect that I require as Finance Director is flexibility. It’s important the loan is suitably financed over the whole year and that I am able to draw it down in blocks.” “With regard to keeping the annual premium and therefore the loan requirement to a minimum, it is all about managing your risk proactively. The guidelines and procedures from our continued Lexcel accreditation and our annual independent audit have been integral to this management. The most important aspect, of course, is ensuring that all these safeguards are followed through in practice to reduce the firm’s risk and ultimately the claims made against it - insurers look favourably on this.”
ASSET FINANCE
INTERNATIONAL TRADING – FOREIGN CURRENCY PAYMENTS AND TRANSACTIONS
“Currently, 12% of Penningtons’ turnover comes from abroad and we are very much looking to grow this international business. With payments required to overseas lawyers, clients and foreign probate transactions, a foreign currency banking capability is increasingly important.” “We see the growth within the Eurozone as much smaller than elsewhere and hence we have had significant success in places like North America and India from investors looking to the UK for property or business acquisition. Our membership of Multilaw, a global association of independent law firms, has been a great asset to the growth of our international business and we have also recently appointed our first partner from Mumbai.”
ONLINE BANKING
“We use the iBusiness Banking provided by Allied Irish Bank (GB) and this offers us everything we need to conduct payments efficiently and reliably. Most importantly, it is secure and allows different levels of authority to ensure staff can only access the parts that they need.” “For client account opening we rely on the bank’s Central Deposit unit. We require these accounts to be opened and managed efficiently and look to negotiate a good rate on larger deposits. Our direct relationship with the staff in this unit means that we are able to quickly track a payment by picking up the phone.”
CREDIT CARD PAYMENTS
“Generally across the legal profession we have seen an increase in credit card payments and for this we look for merchant services solutions. We currently have a point of sale terminal in operation to accept card payments. The increase in card use is down to two reasons. Firstly, there has been a positive social shift towards using credit cards for paying legal bills whereas previously this was not done. Secondly, for the firm this provides a greater speed of collection than chasing invoices. Ultimately, for any business in the current environment, cash is king.”
“When it comes to funding, the relationship a firm has with its bank becomes all important. In 2011, a merger was proposed with two other firms. Penningtons required funding to enable the merger and to purchase office furniture and IT for new premises. I needed to know that I could pick up the phone to our bank and discuss the proposal with someone who understood our business. Our Relationship Manager at the bank carried out their own financial analysis and provided us with a timely, competitive quote over the right payment terms for the firm. An important aspect for me on the fit out for the new office was that we were able to source the equipment ourselves and the bank then reimbursed us, rather than waiting for the bank to pay the supplier or an alternative supplier of the bank’s choice.”
Providing the right products for a wide range of businesses is our challenge. One specialist product we are particularly proud of is our Virtual Account Manager (VAM), which is ideal for law firms. VAM allows firms to open, close and maintain instant access ‘virtual’ accounts for individual clients.
“As Finance Director I advise new partners on market rates and then they arrange the loan with a bank directly. Typically, the rate is the most important aspect here, although some prefer to use their own bank or favour the security of using the firm’s bank.”
We see the relationship with our clients as a partnership and it is pleasing to see Tim echo this. From Tim’s comments, it is clear that drawdown and repayment options are crucial to changing the cash flow of any business. It is vitally important that banks listen closely to their clients and adopt a flexible approach when trying to match their requirements.
PARTNERSHIP LOANS
Peter Slattery, Regional Manager – London and the South East, at Allied Irish Bank (GB), continues where he left off from the last issue with more on finance in the legal sector from a bank’s perspective and what banks should be offering their professional clients.
20 The Clapham Omnibus
Peter Slattery Regional Manager – London and the South East, Allied Irish Bank (GB) www.aibgb.co.uk With special thanks to: Tim Wright Finance Director Penningtons Solicitors LLP www.penningtons.co.uk
Practice Management
DISCOVER THE AFFORDABLE ALTERNATIVE TO EXPENSIVE ONLINE INFORMATION SUBSCRIPTIONS
Can’t find that case citation quickly enough? Having trouble locating a particular piece of legislation? Then the Law Society Library can help you. Our team of experienced law librarians can save you valuable time by researching and locating information from our collection of over 55,000 resources. So there’s no need to take out an expensive online subscription for resources you might never use fully. We can help you to find cases, legislation, precedents, law reports and more. Simply telephone or email your request to the team to get started - 0870 606 2511 or library@lawsociety.org.uk. To give you an idea of how we can help, here are just a few of the enquiries that our librarians have handled in the past*:
COMPARING TEXT BETWEEN PREVIOUS AND CURRENT EDITIONS
The research service is open to members of the Law Society of England and Wales and their employees. The first ten minutes of research are free! Subsequent research is charged for in blocks of 20 minutes. To get started, contact us by: Telephone: 0870 606 2511 Email: library@lawsociety.org.uk The Library’s Lawdocs service can email you copies of materials quickly and easily. Normal delivery time is within 24 hours but if you need a copy urgently our premium express service guarantees delivery within 45 minutes. For more details about this and the rest of the Library’s services please visit www.lawsociety.org.uk/library or call us on 0870 606 2511.
Q. I have a copy of the 4th edition of Hague on Leasehold Enfranchisement. Can you let me know if some text has changed?
We look forward to hearing from you.
A. Yes. The library holds the current edition of Hague on Leasehold Enfranchisement, which is the 5th edition published in 2009. We are happy to read a few sentences over the phone to members. If there is too much to read out we can supply copies of most of the material we hold (subject to copyright law) using our Lawdocs document delivery service (see below for more information).
*Information correct at time of enquiry.
CASE SEARCHES
Q. I’m looking for case law on a particular scenario. Can you help? A. Yes. The library currently subscribes to Westlaw, Justis and LexisLibrary, all of which have case databases that can be searched by key words. If you would subsequently like a copy of a case or law report, we can email you copies (subject to licence agreements and copyright law) using our Lawdocs document delivery service (see below).
LEGISLATION IN FORCE IN THE PAST
Q. I need a copy of the Town and Country Planning (Use Classes) Order as it was in 1970. Do you have a copy? A. We have library resources that provide copies of legislation as they stood at particular points in time, so we will be able to provide you with a copy of this using our Lawdocs service.
SUCCESSION RIGHTS OF ILLEGITIMATE PERSONS ON INTESTACY
Q. I have a partial intestacy probate matter still open from 1982. The only close living relative at the time (and now) is a niece, but she is illegitimate. Can she inherit the remainder of her aunt’s estate? A. The library holds textbooks going back to the 1800s, and we found the answer in Holloway’s Probate Handbook (9th ed, 1993), which states that between 1 Jan 1970 and 3 April 1988 the Family Law Reform Act 1969, s.14 was in force, and gives detailed commentary of how an illegitimate child can inherit under intestacy. The Clapham Omnibus 23
ON THE UP Practice Management
The Law Management Section’s 2012 Financial Benchmarking Survey report shows that, despite the ongoing challenging economic and market conditions, the situation for law firms continues to improve. Andy Harris introduces the findings, and Chris Marston reflects on the results. This is the fourth year that we have produced the Financial Benchmarking Survey for the Law Management Section. Now in its 13th year, the Survey is sponsored by Lloyds TSB Commercial. This year, the survey was opened up to the whole profession, and the submission deadline was brought forward to allow us to produce the report much earlier than in previous years. Despite the earlier deadline, almost 170 practices took part, making it one of the biggest of its kind in the UK. As in previous years, participants provided two years’ data – the most recent accounting period and the previous one – allowing us to compare results on a like-for-like basis. Here are a few brief headlines: • median practice fee income increased by 3.6% compared to 2011, following a 1% increase last year, and a 0.2% increase the year before; • median fee income per equity partner was £559,000; • interest receivable increased by 20% – an average of almost £2,600 per partner – as the amounts of client money held continue to increase, and banks are beginning to pay improved rates of interest on client monies; • the ratio of fee-earners to equity partners increased slightly, up to just under five to one;
• the median cost of an employed feeearner (including fixed share partners) increased slightly to £40,860; • total lock-up (work-in-progress and debtors combined) remained very similar to 2011, at 159 days; • median profit per equity partner increased by 3.6% to £120,677, following the trend in both 2011 and 2010, with increases across the board for all but the largest and smallest practices in the survey – for some practices, profits are as high as they were four or five years ago.
Andy Harris is a director in the legal team at chartered accountants Hazlewoods LLP that they were likely to merge with another practice within the next two to three years, and a similar number were already speaking to other practices.
The increase in profitability has resulted from a combination of increased income and continued control over spending. Greater numbers of practices have also begun outsourcing their key functions. Continuing the positive trend, in this year’s survey, we asked practices for their fee predictions for 2013. Overall, the responses were fairly positive, with a median expected fee growth of 3.4%. Given the uncertainty coming from alternative business structures (ABSs) and other legislative changes, this is pleasing.
Finally, one in five practices thought it likely that they would seek external investment for expansion, and a similar number said that they were likely to bring in one or more non-lawyer owners, such as HR, IT or finance partners, or partners’ spouses.
We also asked participants for their thoughts on their own future over the next few years, particularly following the introduction of ABSs and external investment in practices at the beginning of last year. A third of practices told us
This article was first published in the February 2013 edition of Managing for Success, the quarterly magazine of the Law Society’s Law Management Section www.lawsociety.org.uk/lawmanagement
This certainly ties in with our own experiences – we are currently assisting more practices with mergers, demergers and hiving off parts of their practices than ever before.
NOTE
BANKING ON SUCCESS
Chris Marston, Head of Professional Practices at Lloyds TSB Commercial, reflects on the 2012 survey results This year’s survey results demonstrate once again the remarkable resilience of the solicitors profession. In difficult economic conditions, it’s really impressive to see median income grow by 3.6%, and a similar percentage growth in median profit per equity partner. But the measure I like best is the profit after deducting a realistic notional partner salary, and notional interest on partners’ capital. The resulting ‘super profit’ (or, to be blunt, real profit) has grown to almost 8% of fee income, from last year’s 4.5%. Partners tend to have three roles in their business – as investors, managers and practitioners – and the challenge is to do justice to each role. This important annual survey provides detailed and valuable data to allow them to look at their firm’s financial performance objectively and make the right investment and management decisions. Without those, it really doesn’t matter how great a practitioner you are.
24 The Clapham Omnibus
The LMS Financial Benchmarking Survey 2012, produced by Hazlewoods and sponsored by Lloyds TSB Commercial, is available to Section members now, at the special price of £75, or to nonmembers at £150. Survey participants receive a copy free of charge, plus a personalised report, comparing their results against all other participants. To buy your copy, visit the Section website at www.lawsociety.org.uk/lawmanag ement.
THE UK’S LARGEST DOG WELFARE ORGANISATION Practice Management
Dogs Trust (formerly the National Canine Defence League) was founded in 1891 “to protect dogs from torture and ill usage of every kind”. Nowadays, we are best known for our famous slogan - A dog is for life, not just for Christmas®. We have grown to be the largest dog welfare charity in the UK, with 18 rehoming centres, caring for over 16,000 stray and abandoned dogs every year. We never put down a healthy dog. It is a shocking fact that over 118,000 dogs were picked up on our streets last year. Sadly, many of these dogs were put to sleep through no fault of their own. Our mission is to stop this tragic waste of life. Situated throughout the United Kingdom, our rehoming centres offer everything abandoned dogs need to get them back on their paws again. We offer comfortable kennels, first class veterinary care, exercise facilities, and all the TLC that our canine guests deserve. Most of our dogs are rehomed in a few weeks but those who need a little extra
26 The Clapham Omnibus
help will always be safe with us – thanks to our non destruction policy. We treat every dog like a beloved family pet. Ensuring your dog’s happiness and security after your lifetime… Many people worry about what would happen to their dog if they were no longer around to care for them. Our Canine Care Card scheme is a special free service that will guarantee peace of mind. By registering on the Canine Care Card scheme, Dogs Trust promises to be there to take care of your dog should the worst happen. To find out more about the Canine Care Card call 020 7837 0006, email us at ccc@dogstrust.org.uk.
Practice Management
QUILL PINPOINT RESEARCH DEFIES NEGATIVE INDUSTRY TREND
With regular, depressing news of law firm closures, it’s unsurprising that the just-published Annual Statistical Report by The Law Society shows a reduction in the number of private practice firms. Many reasons are cited for this dwindling number of practicing law firms, including strong competition from rival practices and changes to costs and funding, which mean that firms are finding it ever harder to achieve favourable profit margins. However, in defiance of this negative industry trend, come the results of recently undertaken research by Quill Pinpoint on their Pinpoint Interactive cashiering service clients. The statistics show an average 25.4% increase in profit costs over a 3-year period, attributable in part to outsourcing their bookkeeping function. In monetary terms, that’s worth in excess of £100,000 per firm. The research results demonstrate how outsourcing back office processes can have a positive impact on business models because outsourced support is a proven way to improve profitability by reducing overheads, and offloading the responsibility of cashiering, reporting, forecasting and compliance. As an additional benefit, outsourcing is
provided on a continuous service provision basis. Supporting commentary for the Quill Pinpoint research is provided by Pinpoint Interactive client, David Foster, Partner at David J Foster & Co Solicitors, who states: “We’ve reduced our capital expenditure and overheads because we don’t need to employ accounts staff nor maintain hardware or software. Pinpoint Interactive has contributed to our growth in turnover of 20% over the past 2 years”. Further reinforcement is given by Matthew Bradley, Director at Bradley & Jefferies Solicitors Ltd, who outlines: “Our profit costs have increased consistently year after year… the cashiering service has undoubtedly played its part by limiting our outbound costs, and helping us to tighter control and better forecast our finances”. Cassandra Simpkins, Partner at Simpkins & Co Solicitors, concludes: “Using Pinpoint Interactive for cashiering responsibilities means my Partner and I can concentrate on providing excellent legal advice to our clients and we can
keep a closer eye on other key areas of our firm’s business management. The outsourcing service ultimately helps immensely with our long term aim of increasing profits and our firm’s continued survival in an ever challenging legal marketplace”. This supporting evidence shows how outsourcing enables firms to channel their energies on the essential tasks of legal services delivery and practice management, so that fee earning capacity can be increased, and managers have the business intelligence insight needed to grow their business. By being more productive in both of these business areas, firms can improve their competitiveness and profitability. If you want to find out more on the Quill Pinpoint profit costs research project or request information on Pinpoint Interactive, get in touch by email at info@quill.co.uk, call their Manchester head office on 0161 973 0114 or visit their website at www.quill.co.uk.
The Clapham Omnibus 27
ARE YOU READY FOR A WORLD Practice Management
THAT NO LONGER EXISTS?
“Learners inherit the earth; while the learned find themselves beautifully equipped to deal with a world that no longer exists.” @AmSundell In a 2007 study, 54% out of 486 respondents claimed that they could not envisage the need for any more training to help them with their jobs in the next 10 years. Let’s say that again. 54% said they couldn’t see the need for additional training because they already had learnt everything they need to know to do their job right up until 2017. The world has changed a whole lot since then. The entire legal landscape, and to a large extent the industry, has changed too. There are a reasonably large number of firms struggling, some have gone altogether and a lot of others, if they’re not careful, will be “beautifully equipped to deal with a world that no longer exists”. Does this apply to you?
During all this change, you try to equip yourself to deal with the new realities of the industry. You’re trying to meet SRA expectations and new client targets, reduce spend and maximise revenues. You don’t have time to waste on less than optimal training models and courses. But you have to do something. At the very least, you need to maintain your practising certificates. So where do you go? What is the optimal professional development model? Face-to-face training has the appearance of an answer here, with its easy access to experts, its offer of interactivity and its networking opportunities. Studies have shown that 95% of knowledge given in face-to-face training is gone, unless practised and rehearsed, within 48 hours. What that means in practice is that we get between one and three key take away messages, and consider it money well spent. Add this to the fact that it isn’t available when we need it and that the course we’re on was probably designed a year ago. Our reality sometimes changes very quickly and we need to respond to that. I believe professional development online is the answer here, for a number of reasons: • It enables us to learn what we need, when we need it and in the way we want to learn it. • It’s flexible. We can ‘do’ it whenever we want. We don’t need to be at our desks; we can be at home, on the train or in a taxi. With the increase in mobile-enabled solutions, this is becoming even more possible. • It can be produced more quickly. Meaning that a current issue can be disseminated broadly within days, rather than months. • It can be very effective. We can learn skills, know-how and application techniques for the knowledge we’re gaining. • It can be much more engaging. Online professional development producers are looking at how to best engage, motivate and help their users retain the knowledge, information and skills that are being taught. Different techniques are being used, different formats and different styles. Courses are aimed at appropriate levels, with appropriate lengths and best-practice delivery.
Andy Jones, Head of Professional Learning Services (Sweet & Maxwell Professional Development, Thomson Reuters) Visit: legalpd.com Email: trluki.legalpd@thomsonreuters.com Call: 0845 026 8213
Of course, there is a lot out there that doesn’t meet these standards, and I think the online professional development producers now need to step up and provide highly effective and engaging solutions to meet the industry demands. So to keep up with the changing realities, to stop ourselves being ‘the learned’, we need something to help us. Online learning has that capability. It has the ability to increase the confidence and competence of legal professionals and equip them for now and the future; in practice, in knowledge, in know-how and in skills.
28 The Clapham Omnibus
BRING YOUR OWN TO WORK
Practice Management
There has been a noticeable increase in the popularity of people using electronic devices such as smart phones, laptops and tablet computers. Consequently, employees are bringing their privately owned devices to work and using them for work. A recent survey by the Information Commissioner’s Office (ICO) has revealed that 47 per cent of all UK adults now use their personal devices for work purposes, but fewer than three in 10 users had received guidance on how to use them for work by their employer, to ensure that they complied with the Data Protection Act.
More employers are encouraging this trend as it offers employees’ greater flexibility in accessing information outside of normal working hours, employees are using devices they like, and on the face of it is economical for the employer. However, there are serious risks for employers and their ability to control and protect access of information. As a result of this change in the workplace the information commissioner has published guidance for employers to help them reduce the risk of breaching the provisions of the Data Protection Act. The information commissioner has highlighted concerns about the risk to personal data when using personal electronic devices for work purposes especially if there is no formal written policy or guidance in place at work to control the access to information. One of the risks which the information commissioner has identified is that the user of a personal device “owns, maintains and supports the device and this means that the data controller has significantly less control over the device that it would have over a traditional corporately owned and provided device”.
The guidance by the information commissioner recommends a “Bring Your Own Device Policy” and suggests that the policy should cover the following points: • Who will be responsible for monitoring the policy? • What type of personal data can be processed on the personal device and if it is stored on the device how can this be safely deleted when not in use • Strong passwords to secure devices • Automatic locks on devices to prevent unauthorised access of information, ensure the user knows when to delete information and maintaining a separation between personal data and data used for the purposes of work • Which documents are allowed to be accessed through a personal device? • How controls can be put in place if the device is lost or stolen • Who pays for the cost of maintaining the device if it is being used for work purposes? • What happens on termination of employment?
If businesses are unable to provide their employees with their own electronic devices then they should consider implementing a Bring Your Own Device Policy. The Clapham Omnibus 29
Private Client
LASPO AND THE ATTACK ON FUNDING
“In some areas of civil litigation costs are disproportionate and impede access to justice. I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice”. 21st December 2009 – Rupert Jackson The starting point and the underlying themes are that Claimants choose to start litigation and therefore should be responsible for some costs plus overall costs are excessive, especially insurance premiums. The idea of Lord Jackson was that there would be a 10% increase in general damages which was intended to offset the additional costs of Claimants. It is of course, completely unsatisfactory for this purpose. Claimants cannot now recover all of their costs from the Defendant who has caused their injury. Lord Justice Jackson wanted to remove from the equation altogether the costs of insurance premiums which he considered excessive. In order to do so he proposed QOCS, qualified one way costs shifting.
Ali is a partner is the clinical negligence department, specialising in complex clinical negligence and personal injury claims. She is the current secretary of the APIL clinical negligence special interest group and lectures widely on a variety of legal and medical topics. Ali is qualified as a solicitor in England & Wales. She is also admitted as a solicitor in Ireland. In addition to her legal qualifications Ali is also a qualified nurse. And so it all began...
The Claimant will no longer be responsible for paying the Defendant’s costs if the claims fails but the Defendants will pay the Claimant’s costs if the claim is successful. However what the Defendant will ultimately be liable for is reduced significantly. There are, as is always the case, exceptions including where a Claimant has been deemed to have acted fraudulently, frivolously or “unreasonably” in pursuing the claim. In addition, part 36 still applies with the full costs implications for the Claimant. A Claimant therefore still needs protection. For the clinical negligence practitioner the other important aspects of the case are offers to settle which are dealt with in Section 55. This will allow Court rules to permit the Court to order a Defendant to pay an additional amount where the Defendant has in essence failed to beat a Part 36 Offer. There are conditions associated with this and the rules indicate that settlement or judgement of the claim has to be at least as advantageous as the offer to settle the claim. This of course is going to open to interpretation and no doubt satellite litigation will follow in any event. Section 55 does however set out a list of issues that will be taken into account when the amounts are calculated. It is worth reviewing The Offers to Settle in Civil Proceedings Order 2013
As we are all too aware, Lord Justice Jackson was asked to review the issue of litigation and costs. He began by considering a number of different areas : “Amendment” of the CFAs, removing ATE insurance, strengthening part 36 to encourage earlier and realistic settlements and an increase in general damages. Not content with these fairly sizeable issues the report tackled pretty much every aspect of litigation and costs. Few of these are likely to be considered significantly beneficial to Claimants.
http://www.legislation.gov.uk/uksi/2013/93/contents/made
Most Defendant firms have welcomed proposals as a series of interlocking reforms which aim to reduce the level of costs and increase access to justice. Most Claimant firms would take an almost oppositional view. I should point out that I am and have always been a Claimant lawyer.
Above £500,000, up to £1,000,000 10% of the first £500,000 and 5% of the amount awarded above that figure.
The new changes in litigation, funding and costs arise mostly (but not completely) as a result of the implementation of Part 2 of the Legal Aid Sentencing and Punishing of Offenders Act 2012 (LASPO). The bulk of this Act actually deals with criminal offences and it should be noted that Part 2 is not the complete set of amendments. In order to make the system workable there have been significant amendments to the Civil Procedure Rules. 30 The Clapham Omnibus
55 PAYMENT OF ADDITIONAL AMOUNT TO SUCCESSFUL CLAIMANT
Additional amount to be paid where a claim is only for an amount of money 2. Where rules of court make provision for a court to order a defendant in civil proceedings to pay an additional amount to a claimant in those proceedings and the claim is for (and only for) an amount of money then, for the purposes of section 55(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the prescribed percentage shall be—
Amount awarded by the court
Prescribed percentage
Up to £500,000
10% of the amount awarded.
Above £1,000,000
7.5% of the first £1,000,000 and 0.001% of the amount awarded above that figure.
Having destroyed the idea that costs follow the event LASPO then seeks to look at what costs Claimants can recover following success. The ethos of the new system is to reduce recoverable costs by removing the recovery of “additional liabilities “ that is success fees and insurance. Conditional Fee Agreements (Section 44 LASPO Part 2) and in particular their success fees have been a source of antagonism for the Defendants since 1990 when recovery of success fees from them was permitted. There have been considerable amendments to CFAs and Success Fees. Section 58 of the Courts and Legal Services Act 1990 has been amended. Under the new Section 44 of LASPO additional conditions are now applicable to CFAs. Success fees will become subject to a maximum limit. This will be expressed as a percentage of damages. There will also be a maximum possible percentage. More importantly these success fees are no longer recoverable from the paying party. Post April, success fees are the responsibility of the client. The legislation is not
CUT THE GAP Legal Education
retrospective. In order to allow this fundamental change Section 45 has been introduced. This amends Section 58A of the Courts and Legal Services Act. In essence this allows for the provision of damages based agreements (a type of contingency fee) previously allowable in employment cases. Claimants now are to be responsible for some of their legal costs. LASPO also deals with the issue of insurance which previously has been recoverable from the Defendants at the successful conclusion of the case. Section 46 inserts into the Courts and Legal Services Act of 1990 a new Section 58c. This will mean that the cost of insurance policies will not be recoverable in any circumstance save for clinical negligence cases. That recoverable insurance policy however will be limited in its effect and scope but is intended to cover disbursements only. In short a Claimant can take out (at their own cost) insurance to protect them against costs following part 36 offers and disbursements but they can recover only that part of the premium which only relates to breach and causation reports in clinical negligence cases on which they are seeking to rely. The rest of the premium is not recoverable. Thus whilst Lord Justice Jackson was keen to remove the need for insurance from the system the reality of part 36 and costs of disbursements means that it is still required. In addition to the issue of funding under CFAs Lord Jackson ‘s supporters were enthusiastic about removal of public funding for clinical negligence clients. This was subject to fierce campaigning and debate over many months. The end result is a poor constructed compromise. Legal aid is no longer available for the vast majority of clinical negligence cases. It is available for cases in which there is neurological damage in infants at or under 8 weeks. As practitioners know all too well the implementation of the above means significant changes to the court rules which is outside of the remit of this review. It is safe however to work on the basis that the ethos of the court system is to reduce and control costs significantly and to force parties to keep to the timetable. Practitioners ignore the new rules at their peril.
“In an attempt to save £350 million a year the coalition government has launched a full frontal attack on access to justice”, says Alan Russell. Since 1st April 2013, legal aid in relation to welfare benefits, debt, employment and education is no longer available; and publicly funded family, housing and immigration advice has been severely curtailed. All this in tandem with the most radical reforms to welfare benefits in a generation. Can university-based advice services plug the gap? The answer is no. Aside from any moral objections, the fact is student-staffed services can never hope to make more than a small dent in the need for free/low cost social welfare legal advice. However, such services can help if they form part of integrated provision. Here at London South Bank University (LSBU), in the London Borough of Southwark, we’ve opened a drop in Legal Advice Clinic offering free face-to-face generalist advice in precisely those areas cut from the legal aid scheme. The service is delivered by students, but under the close supervision of practising solicitor/academics employed by the university - between us we have over 30 years experience of social welfare law advice and representation in private practice, law centres and CABs. We opened in September 2011 and since then we’ve assisted more than 500 clients.
Close and expert supervision is the key, together with the support of local firms for specialist advice. We’re also thinking about how we can extend our services in light of the cuts. For example, we’re developing a court based scheme at Lambeth County Court where students, again under close and expert supervision, will help selfrepresented litigants complete court forms and possibly act as McKenzie friends. We’re also looking to take advantage of our staff expertise in welfare benefits and have our students provide a disability benefits form-filling service. So, yes, university law departments can and should be doing this work. But supervised student provision can never replace adequately resourced local networks of solicitors and community advice services. The cuts to legal aid pose a terrible threat to those networks, including our own here in Southwark. I hope a future government sees sense and reverses them.
This article first appeared in Lawyer2B – Law Training Contracts and Careers in Law on 17th April 2013. See http://l2b.thelawyer.com We are grateful for their permission to reprint it.
The educational benefit to our students is clear. Our students learn by doing; taking instructions, researching the problem, delivering the advice, writing up a succinct and accurate case record. The kind of hands-on experience even trainee solicitors sometimes don’t get. The benefit to our clients is clear too. They get on-the-spot generalist social welfare law advice, which has been overseen and checked by solicitors with appropriate expertise. In addition, our clients can access specialist advice (housing, family and employment) at weekly evening sessions staffed by experienced volunteer solicitors from local legal aid firms, Philcox Gray, Wainwright Cummins and Anthony Gold. We think this is a model that can be exported to other Higher Education Institutions and with the support of the Higher Education Academy we’ve produced a Director’s Manual, available from LawWorks, setting out how to do it http://www.lawworks.org.uk/students.
Alan Russell is a Law Lecturer / Solicitor at London South Bank University and Director of the LSBU Legal Advice Clinic
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Legal Education
CONFERENCE REPORT:
CLINICAL LEGAL EDUCATION FORM AND FUNDING FRIDAY 15 FEBRUARY 2013 local law firms Philcox Gray, Wainwright Cummins and Anthony Gold. We are the only university in the country to run a drop-in advice service of this kind and we have recently published our 70page Drop-In Clinic Operational Manual as a free teaching and learning resource for other universities, funded by a Higher Education Authority teaching grant.
LSBU Clinic Director Alan Russell chairs the conference panel discussion.
It is well-accepted that clinical legal education projects are an excellent forum for helping law students learn practical skills and formulate real-world solutions to legal problems rather than merely an abstract determination of liability. In the 1970’s-80’s, London South Bank University was at the forefront of clinic but – upon the massification of higher education in the 1990’s – we lost our clinical projects because they were not financially sustainable. Revitalised by the higher education employability agenda, clinic has returned to LSBU as an innovative South London drop-in service where students give face-to face legal advice in an open-door clinic. Since it opened in November 2011, the LSBU Legal Advice Clinic team has advised over 500 clients and has been able to resolve just under 90% of enquiries, either at its daytime drop-in sessions or its specialist appointment sessions generously supported by volunteer solicitors from
Head of the Law Department Andy Unger with Keynote speaker Lucy Scott-Moncrieff, President of the Law Society.
The manual was officially launched on Friday 15 February at LSBU’s Clinical Legal Education - Form and Funding conference. Attended by 100 academics, practitioners and students – including Law Society President, Lucy Scott-Moncrieff – the conference demonstrated a wide range of how to do and fund and think about clinical legal education, underpinned by a strong emphasis on the importance of pedagogic content and reflection. In ‘Session 1 : New Clinical Projects’, we heard from Prof John Fitzpatrick from the University of Kent Law Clinic. This is a long-standing, well-established, wideranging full service clinic, embedded into their LLB as an optional module for Year 2 and Year 3 students. It has recently obtained substantial funding from 3 charities to develop a new immigration and asylum law project. The second speaker was Karen Clubb, Senior Lecturer at the University of Derby, where they are developing a very innovative means of using clinic as the basis for socio-legal research, which opens up the possibility of postgraduate fees as a clinic funding stream. The third speaker was Dr Sue Prince, Associate Professor at the University of Exeter, where they have set up a court-based law clinic to assist litigants in person. They began in Sept 2011; their caseload has increased exponentially; and now they are facing decisions about how to best ensure the financial sustainability of their project. In Session 2, Law Society President Lucy Scott-Moncrieff addressed the conference, which then broke into 5 discussion groups to consider the benefits of a clinic placement, clinic and social justice, priorities in clinic, recruitment/selection of clinic staff and students, and funding sources. The 5 discussion groups formulated questions to ask a form and funding panel in the final session. In ‘Session 3 : New Clinical Identities’, Dr Chalen Westaby from Sheffield Hallam
Links to all the conference materials are available on the HEA Social Sciences blog: http://blogs.heacademy.ac.uk/social-sciences/2013/02/22/clinical-legaleducation-form-and-funding You may download our Drop In Clinic Operational Manual here: http://www.lsbu.ac.uk/ahs/downloads/law/lsbu-drop-in-clinic-manual
32 The Clapham Omnibus
“There are two great virtues of clinical legal education: it teaches you how to be a lawyer and it teaches you about the realities of access to justice and its importance to the rule of law. Your experience in clinic will radicalise you and make you a life-long champion for justice and access to it for all.” Lucy Scott-Moncrieff Law Society President “It was difficult not to come away from this event without feeling inspired. From networking opportunities, to hearing directly from students, to useful breakout sessions and informative lead presentations this was a well-structured and thoroughly informative day.” Malcolm Combe from the University of Aberdeen “The conference was excellent. I left feeling stimulated and enthused, which is not normally how I feel on a Friday in the middle of February.” Lucy Yeatman from the University of Greenwich “Thank you for a wonderful conference, full of interest and fresh thinking, and just a great vibe.” Prof John Fitzpatrick from the University of Kent University presented her research into the role of clinical legal education in advancing law students’ understanding of “emotional labour expectations” in the legal profession. The second speaker was Lisa Nolan from the University of Westminster who is conducting research into the rise of audit culture on legal academic identity with a particular focus on the professional identities of academics involved in clinical legal education. Then I talked about what motivates students to get involved in clinic, and sought to disentangle the sometimes muddled concepts of pro bono work and clinical legal education. In Session 4, a panel chaired by Alan Russell from LSBU discussed the questions agreed by conference earlier that day. The panel members were Julie Bishop Director, Law Centres Network; Sheila Donn Partner, Philcox Gray Solicitors; Jacqueline Kinghan Director, Centre for Access to Justice, UCL; Jake Lee, Solicitor and Pro Bono & Community Affairs Manager, Allen & Overy LLP; and Carol Storer Director, Legal Aid Practitioners Group. Dr John Russell Lecturer in Law / Solicitor-Advocate LSBU Legal Advice Clinic London South Bank University
MOVING WITH THE TIMES WITHOUT LOSING SIGHT
Probate
Fraser & Fraser celebrate 90 years of probate research This year marks an important milestone in Fraser & Fraser’s long history. As we celebrate our 90th year, it seems fitting to take a look back at how our business has evolved to meet the ever changing needs of this industry while at the same time continuing to deliver the high standards demanded by the legal professionals we support. In 1923, Gertrude Christensen, great aunt to today’s working partners, took the ambitious step of founding her own firm. Due to her experience, employed as an Outdoor Clerk carrying out genealogical research for a law firm, she was confident that she had the expertise needed to support lawyers in their work. In 1969, a new partnership was formed with her nephews, Nathan and Simon Fraser, at the helm. Under their management, Fraser & Fraser continued to lead the way in probate research in the face of an ever changing society. Increasing divorce rates, emigration, immigration and population growth all made searching for missing beneficiaries more of a challenge, and they developed the expertise to overcome these obstacles. Since 2007, the firm has been managed by the latest generation of Frasers: Andrew, Charles and Neil. These current partners are forward thinking and share their family’s passion for research, but they also bring with them the technical knowledge needed in looking for new and innovative research solutions. This ensures we stay ahead of the competition and can research more effectively at greater speed than ever before.
There is no doubt that the internet and increased media coverage have contributed to revolutionising the world of genealogy. TV programmes such as Heir Hunters and genealogy websites that allow users to research their own family trees are extremely popular; this technology is essential in helping us to reduce costs, speed up the search process and increase communication, but these factors have also led to an increase in small, amateur probate research firms arriving on the scene. Experience has shown us how important it is for solicitors to be able to choose a firm that they can trust and have confidence in. Despite many changes over the last 90 years, some things have stayed the same. We have upheld the Fraser family’s vision by offering dedicated support to probate professionals in the UK and overseas and we continue to grow. We have built up international relationships, a network of European offices and a vast portfolio of services, but the firm still remains in the hands of the family that started it up in 1923. At the grand age of 90, Fraser & Fraser are proud to say that we continue with the same values and aims forged by Gertrude all those years ago: to be and always be a trusted and reliable partner to the legal profession.
The Clapham Omnibus 33
Junior Lawyers Division
THE EVER-CHANGING FACE(BOOK) OF FAMILY LAW
In less than a decade, the popularity of social media has grown enormously and it has become a significant part of the everyday life of millions of people around the world. There are currently over 350 million active members of Facebook and it is estimated that 37.4 million UK adults use the site regularly. Twitter is the second most popular social media site and a staggering 163 billion tweets have been sent since its dawn in 2006. It is therefore unsurprising that social media has quickly become a common feature of many areas of family law and practice. Research carried out by Divorce-Online in 2012 highlights the huge significance that social media now has to family law. The study found that 1 in 3 divorce petitions in the UK list Facebook as a contributing factor, with flirtatious emails and messages sent on the site being one of the most commonly cited examples of unreasonable behaviour. Office romances and affairs that took months or even years to develop in the real world can now happen almost instantaneously on Facebook and Twitter. People can connect and become ‘friends’ even if they have only met once or twice, and social media sites provide an easy forum for couples to inadvertently arouse the suspicions of their partners. Social media is also now featuring in a growing number of international family cases. Where clients are trying to establish jurisdiction on the basis of domicile or habitual residence, sites like Twitter can be used as evidence of the country their spouse has been tweeting in and therefore the country in which they have been residing. Facebook often ‘tags’ users with the location where they are when they post a status update or upload a photograph and this can be used by their spouse as evidence of their whereabouts. Jurisdiction can often make a significant difference to the outcome of divorce and financial remedy proceedings and family lawyers must consider advising their clients to ‘tweet’ with care, particularly when they are facing a potential jurisdiction dispute. Further, social media is starting to be utilised more and more frequently as a tool for service of documents where personal service cannot be effected. Australia has led the way in this regard and was the first to permit service via social media in the case of MKM Capital Property Ltd v Corbo and Poyser (ACT Sup Ct. No SC 608 of 2008). Here, personal service on the defendants failed. On the defendants’ Facebook pages there were email addresses, friend lists and dates of birth which matched the information already held. In addition, the two defendants were “friends” on Facebook. Substituted service via Facebook was sought. The court was satisfied that the profiles did belong to the defendants and substituted service was allowed. Since then there have been at least two civil cases in England where the courts have allowed service via Facebook and it is surely inevitable that in the future divorce petitions and other family law proceedings will be served via social media where all other avenues have been exhausted. Social media is playing an increasingly important role in the thorny issues surrounding disclosure and privacy in family cases. Traditionally, clients may present documents that they have “found” showing that full disclosure has not been made by their spouse. Now, they may present photographs, wall posts or other information posted on social media sites. In this scenario, difficult questions surrounding privacy and the law of confidence arise. Were the documents obtained lawfully? Can the information be used in court proceedings? Did the client obtain this information by accessing their spouse’s email or Facebook 34 The Clapham Omnibus
account? Traditional legal remedies available if there has been a suspected concealment of assets include search and seize orders, freezing injunctions and preservation orders. However, where there is information on Facebook that could be useful in court proceedings, a possible route to recover the information is to obtain a Norwich Pharmacal Order. Such an order can be used against the social media site to force them to disclose certain information. Norwich Pharmacal orders are regularly used in civil actions to obtain the identity and obtain details of the wrongdoer. However, the relief is not limited to the name and address of the wrongdoer and can include disclosure of information crucial to the claim such as the email address and IP addresses used, searches made for other people, details of the information which was posted onto the site, where it was posted, and what other pages have been viewed. Disclosure usually takes the form of production of documents but it may also include providing affidavits, answering interrogatories or attending court to give oral evidence. There is no reported Norwich Pharmacal case in the Family Division as yet but it is surely only a matter of time. In conclusion, social media has become firmly embedded in family lawyers’ everyday practice in a number of ways. Family lawyers must always ensure that their clients are fully advised on the wide reaching implications that their actions on social networking sites may have in future family proceedings.
Also published in New Law Journal www.newlawjournal.co.uk
Sarah Hughes and Lehna Hewitt, Family Law Solicitors at Anthony Gold, discuss the important and ever increasing role of social media in family law.