The Clapham Omnibus

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

ACCOUNTS Joanne Casey

Introduction 4 4 5

News 6 7 8 10 12 12 13

MEDIA No. 1314

PUBLISHED October 2013 © Benham Publishing Ltd

LIST OF OFFICERS APPLICATION FOR MEMBERSHIP/RENEWAL PRESIDENT’S REVIEW

COUNCIL MEMBER’S REPORT PROGRAMME OF CPD EVENTS 2013-2014 SOUTH LONDON LAW SOCIETY AGM 2013 5 REASONS WHY INBOUND MARKETING BEATS COLD CALLING EVERY TIME NATIONAL MEDIATION PROVIDERS ASSOCIATION THE FIRST PORT OF CALL FOR MEDIATION COMPLICATED LEASEHOLD PROCESS MADE EASIER WITH NEW STANDARDISED FORMAT SAYS LAW SOCIETY DIVERSITY IN THE LEGAL SECTOR Human Rights

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A HISTORIC FIRST IN COLOMBIAN HUMAN RIGHTS CASES! Property

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.

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Practice Management 22

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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.

Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

HOUSING UPDATE DRIVING CUSTOMER SERVICE IMPROVEMENTS FOR CONVEYANCERS

OWNER MANAGED BUSINESSES TO GET LENDING BOOST AS ALLIED IRISH BANK (GB) CREATES NEW FUND FOR BUSINESSES IN LONDON AND THE SOUTH EAST OUTCOMES FOCUSED REGULATION – THE LIGHT DAWNS TIMELY OUTSOURCING GUIDE HELPS LAW FIRMS TO WORK SMARTER Probate

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BERNARD MATTHEWS – WILL CONSTRUCTION AND THE DOCTRINE ELECTION Junior Lawyers Division

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EMPLOYMENT LAW UPDATE CHANGES AND CHALLENGES WHAT YOU GET FROM WORK EXPERIENCE SOUTH LONDON JLD UPDATE 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

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Hon. Secretary

Magazine Editor

Web Address: www.southlondonlawsociety.co.uk

Introduction

PRESIDENT’S REVIEW In keeping with our stated objective for the “Annual Dinner” to be at a Destination Venue then this year we give you two!

On Thursday 24th October 2013, we are offering, as part of our key social event for the year, a Trip to the Top of The Shard. We have to arrive between 6.30pm and 7pm and will stay until 8pm.

You will see some fantastic views in the immediate vicinity and across London from Europe’s tallest building and we are hoping that, given that you will be seeing the views at dusk, they will be truly memorable.

We hope to have a photographer present in our group to record your visit and we are hoping to provide those photographs in due course as a memento and for no additional cost.

The Trip to the Top of The Shard will be followed by a buffet at The George Inn in Borough High Street. We will gather there at around 8pm in the Winchester Room and a finger buffet will be served including wine. Established in the Middle Ages and currently owned and leased by the National Trust, The George is the only surviving galleried Coaching Inn in London. It is a venue that South London Law Society has used before but not for a very long time and I for one (who can remember past events there!) am very pleased to be returning.

I do hope that by the time you read this column the event will have sold out. Advance publicity has been given by email in the usual way and places are strictly limited to 80 on this occasion.

On Thursday 14th November 2013, South London Law Society holds its AGM. The venue will as usual be London South Bank University and the notice of the AGM is within this edition of the Journal. We are incredibly fortunate to have as our Guest Speaker Alastair Logan OBE. Alastair is best known of course for his work in defending those charged with terrorist crimes starting with the Guildford Four back in the early 1970s. He currently sits on the Law Society’s Human Rights Committee and was appointed an OBE for services to justice in 2002. I hope very much that Alastair’s appearance at our AGM will cause the meeting to be well attended this year, a year in which we have of course seen huge changes in our profession and which are ongoing. I will be quite happy for there to be some debate at the meeting and discussion regarding current issues and, certainly, time can be found for that if members support it.

The changes in criminal legal aid have been widely publicised and, covered in this Journal previously this year. The proposals outlined have received significant opposition from South London criminal practitioners and across the board.

We are doing all that we can to rally support in opposing the provisions, lobbying local MPs in the process. We know that the effect is going to be felt by firms large and small given the measures proposed to reduce the number of providers and reduce the fees that can be charged.

Similarly, and something which we have not covered to any great extent in the Journal so far, we have to consider the huge changes that are coming about in the area of claimant personal injury. The coming into force six months ago of the Legal Aid, Sentencing and Punishment of Offenders Act has had a massive effect on the core business of a number of firms specialising in personal injury work with success fees greatly reduced, referral fees banned and the fact that insurance premiums can no longer be recovered.

There can be little doubt going forward that the effect of those reforms will cause a significant drop in the number of cases which lawyers consider financially viable to take on. Therefore, as in the criminal legal world, smaller firms will again cease to trade and, indeed, larger firms will reduce their PI teams.

Redundancies loom, therefore, and the opportunities for lawyers to advance in this area of the law will surely be strictly limited.

Because these changes are now enshrined in law, unlike the position with regard to criminal legal aid, we cannot now challenge and protest but, of course, what we can do is try and help firms to manage the changes in the PI “industry” and I will hope to see something in this regard feature in a forthcoming edition of the Journal.

So what else do we have for you in this edition? Well we have a fantastic and detailed update on Housing Law written by my newest Partner at Anthony Gold, Giles Peaker. We also have an article by our Treasurer, Gareth Ledsham on Bernard Matthews and yet another fascinating article on Human Rights by Past President Sara Chandler following her visit to Columbia. We hope very much that you will enjoy this edition and that we will see you at the “Annual Dinner” and the AGM. As is my custom at this time of year and since you will not be hearing from me again in this Journal before the end of 2013, my Seasonal Greetings to you all and a Prosperous New Year.

We could all do with the latter!

Stephen Whitaker President South London Law Society

COPY DEADLINES Spring 2014 Issue Summer 2014 Issue Autumn 2014 Issue

31st January 2014 30th May 2014 30th September 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

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News

COUNCIL MEMBER’S REPORT

There has not been a Council meeting since my last report in the Summer but there has been significant events effecting firms in our area.

COMPETITIVE TENDERING FOR CRIMINAL LEGAL AID

In my last report I was discussing the government’s proposals for criminal legal aid. Since then the Law Society has been in negotiations with the Ministry of Justice and as you will no doubt have seen a possible way forward was negotiated with the Lord Chancellor. The government seems to have climbed down from their position that there be a small number of large providers sharing out the work in “super” catchment areas.

However the devil as in all these things is in the detail. The government are intent in introducing a further 17% reduction in remuneration rates. I am informed by my criminal colleagues that this could mean attendance at a police station on some heavy duty matter being paid less than the minimum wage. The largest criminal firms seem to be saying that they can live with the rates. The effect, therefore, could be as originally intended that this work is carried out by a handful of mega firms or conglomerates and the small firm is excluded.

The President and the Chief Executive of the Society both believe that this is the best deal that could have been obtained.

I trust both these people and believe that they have the best interest of all our members in mind. However, I can well understand that members in South London whose livelihood is now at risk take a different view. It is clear if a fight was to be had we would be up against enormous political opposition. The problem is would it end up being a legal Rorke’s Drift or a Little Big Horn.

majority of firms will have arranged their cover. There will be (we hope a small number) who have not. These firms should be aware that the Assigned Risk Pool has been abolished and that a failure to obtain cover will eventually result in the firm having to cease trading.

These firms should be aware of the options available.

Under the new rules, firms have an Extended Indemnity Period (EIP) of 30 days and a further 60 days in the Cessation Period (CP) if they are unable to obtain cover. This provides a further opportunity for firms to obtain insurance.

If they fail to do so, firms will be restricted in the work that they can undertake and will need to move towards closure.

The Society understands that a number of insurers are still considering and accepting business. These are: • AmTrust • Chancery Pii (1-4 partners) Law Select • Travelers • WR Berkeley – but not for conveyancing firms Zurich • Elite – but not for sole practitioners The Law Society is constantly monitoring the position and will update this list regularly. For further information about segments and types of firms that these insurers cover see the Law Society’s Insurance Guide at http://www.lawsociety.org.uk/advice/re gulation/pii/guides.

I would be interested in receiving the views of the criminal practioners in our area and representing those views on Council.

Solicitors experiencing difficulties obtaining PII can also:

Members will be aware of the failure of certain insurers in the last insurance period. By the time of publication the vast

• Contact the Law Society’s PII helpline - 020 7320 9545 – which will have the most up to date information and advice;

INDEMNITY INSURANCE

• Consult the Law Society’s guides on PII http://www.lawsociety.org.uk/pii; • See the Law Society’s advice on the EIP and what it means http://www.lawsociety.org.uk/advice /articles/extended-indemnity-period; • Explore the option of Chancery Pii, which is a managing general agency that has been created to provide primary layer PII cover for solicitors’ firms in England and Wales with 1-4 partners. Chancery Pii places insurance with a panel of participating insurers. Each insurer has a financial strength rating of at least A(Standard and Poor’s) or equivalent and each takes an agreed percentage share of the liability/premium for a policy. More information is available at www.lawsociety.org.uk/chancerypii Solicitors without insurance will need to notify the SRA within five working days of entering both the EIP and CP. The address to contact is: InsuredReports@sra.org.uk. See Rule 17.3 of the SRA Indemnity Insurance Rules: http://www.sra.org.uk/solicitors/handbo ok/indemnityins/part5/content.page and the SRA’s notice to firms www.sra.org.uk/documents/solicitors/p rofessional-indemnity-insurancenotification-sept2013.pdf

WHERE YOUR MANY GOES

I set out below the headline figures for the allocation of the practising fee.

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.

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n Law Society running costs 13.1% n SRA running costs 26.4%

n Corporate Solutions (formerly 'Shared Services', which provides facilities, HR, finance and IT to the SRA and Law Society) 24.9% n Project expenditure 8.6%

n ARP contingency and capital reserves 8.7% 8.7%8.7% n Legal Services Board and Legal Ombudsman costs 18.2%

One of the main items was the 2014 operating budget for the Law Society Group, agreed at £112.5million. The total funding requirement from PC fees was set at £116.8 million, broken down as below.

Through the PC fee, 60 per cent of the budget is provided by firms and 40 per cent by individuals. With the substantial reduction of the Compensation Fund levy, individuals in 2014 will pay £4 (0.9 per cent) more than in 2013 and firms will pay between 6 and 13 per cent more depending on their annual turnover.

Group expenditure in 2014 will remain less than the equivalent sum in 2011.

Please contact me with any issues that you wish me to take up at dxt@hanne.co.uk.

SOUTH LONDON LAW SOCIETY & LONDON SOUTH BANK UNIVERSITY

News

PROGRAMME OF CONTINUING PROFESSIONAL DEVELOPMENT EVENTS 2013-2014 Seminars start at 6.30 pm (unless otherwise indicated). Refreshments are available from 6.00pm.

All seminars attract 1.5 CPD points.

Seminars are held in the London South Bank University Keyworth Centre. See 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 £50 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 TIME

TOPIC LECTURER

Human Rights & Combatting Terrorism Alastair Logan OBE, Solicitor

PASTORAL CARE

Thursday 14th November Lecture 6.30 pm AGM 8.00 pm Tuesday 26th November 6.30 pm

Family Law Update Robert Hush, Solicitor, Vice President SLLS

Tel: 0870 606 2522 practiceadvice@lawsociety.org.uk

Tuesday 3rd December 6.30 pm

Criminal Law Update Joel Bennathan QC, Barrister at Doughty Street Chambers, Imran Khan, Solicitor, Imran Khan & Partners, Visiting Professors in Law at LSBU

2013

PRACTICE ADVICE SERVICE

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 This provides advice on client care and complaints handling. Lines are open from 9:00 am to 5:00pm Monday to Friday.

PASTORAL CARE HELPLINE

2014 Tuesday 11th February 6.30pm

Personal Injury Law Update Sana Bibi, Solicitor, Anthony Gold Solicitors

Tuesday 18th February 6.30pm

Private Client Update Speaker tbc, Russell-Cooke Solicitors

Tuesday 4th March 6.30 pm

Employment Law Update Harry Dronfield, Solicitor, Hanne & Co

Tuesday 11th March 6.30 pm

Human Rights Law Update Sir Geoffrey Bindman QC, Solicitor, Bindman’s LLP, Joel Bennathan QC, Barrister at Doughty Street Chambers, Imran Khan, Solicitor, Imran Khan & Partners, Visiting Professors at LSBU

Tuesday 18th March 6.30 pm

Housing Update Giles Peaker, Solicitor, Anthony Gold Solicitors

Tuesday 7th October 6.30 pm

Criminal Law Update Joel Bennathan QC, Barrister at Doughty Street Chambers, Imran Khan, Solicitor, Imran Khan & Partners, Visiting Professors in Law at LSBU

Tuesday 21st October 6.30 pm

Family Law Update Robert Hush, Solicitor, Vice President SLLS

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.

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News

NOTICE

SOUTH LONDON LAW SOCIETY

AGM 2013

14TH NOVEMBER 2013 AT 6.30 P.M.

You are cordially invited to attend the Annual General Meeting of the South London Law Society on Thursday 14th November 2013 at 6.30 p.m. at:

AGENDA 1. Apologies for absence.

The Keyworth Building London South Bank University

2. Approval Minutes of the 2012 AGM.

Keyworth Road

3. President’s Report, Stephen Whitaker.

London SE1 4. Treasurer’s Report, Gareth Ledsham.

Refreshments will be available before the meeting from 6.00 p.m.

5. Council Member’s Report, David Taylor.

6. Guest Speaker – Alastair Logan OBE.

Please confirm your attendance to Lawumi Biriyok Hon. Secretary, SLLS. 7. Election of Officers birisho@aol.com

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8. A.O.B.

News

5 REASONS WHY INBOUND MARKETING

BEATS COLD CALLING EVERY TIME The post-Jackson world is a strange, strange place for small practices, especially those who’ve traditionally relied on claims management companies to provide them with leads.

With the noose ever tightening around our easiest route to market, what can we do to combat the almost inevitable decline in business?

Online marketing is something that, as an industry, we’ve shied away from. The barrier to entry can be relatively high, the learning curve steep and the pitfalls too numerous to count. But what if I told you that the real trick to Internet marketing isn’t knowing your HTML from your JavaScript - it’s just about knowing how to have a meaningful conversation?

CONTENT IS KING

It’s not a secret - people are more likely to buy from people they trust, and in today’s market we need to view ourselves as salesmen and ambassadors for our products. The best salesmen - the ones who don’t need to paint their customers into corners, but rather let them come to decisions themselves are evangelists, and who’s a better evangelist for your business than you?

By providing potential customers with content that’s of real use that simultaneously extols the values of your product, you can engage with an entirely new audience of people that a) already know what you do and b) know that you’re informed and active in the space you’re working in. This beats any cold-calling CMC hands down and shifts the paradigm - your clients don’t feel harassed into making a claim, and you have complete control over their onboarding and flow through your company.

With no further ado, here’s our top 5 reasons why your business should be looking at inbound marketing as the next step in your lead sourcing.

1 INBOUND MARKETING BUILDS TRUST To an extent, inbound marketing is a “long game”, meaning you’re investing time now in order to get a return in the future. The advantage is that you’ve already provided your potential customer with something of value. By giving them something they can use for free you’re more likely to attract their paid business in the future, and you’ve established yourself as a trustworthy and authoritative voice.

2 INBOUND MARKETING COSTS NOTHING BUT TIME

Though time’s at a premium in all of our lives, 30 minutes a day spent on the core inbound activities - blogging, website optimisation, social media interaction, content curation and sharing - could help bring down your average cost-per-lead by 62%, with no capital investment.

3 INBOUND MARKETING = SEO

By taking control of your inbound marketing and focussing your efforts around your website, you’re acting as your own Search Engine Optimisation consultant. Creating content that people want to read and share, placing the main bulk on your website and sharing it through multiple channels can help your site to seem more trustworthy and so appear higher in Google and Bing’s search results.

4 INBOUND MARKETING COVERS THOUSANDS OF CHANNELS

By using a CMC, you’re limiting yourself to a single sales/marketing channel with a high cost. By making the switch to inbound, the blog that you write for your site can be shared on Twitter and Facebook, be broken down into an infographic to share on BuzzFeed or Pinterest, be turned into a presentation to throw up on Slideshare, a webinar, a workshop…the possibilities are as endless as the number of channels available. It also means that, if one of your channels should become closed, you have many others still available to use.

5 INBOUND MARKETING SNOWBALLS OVER TIME

Rather than print advertising which, by its nature, is ephemeral, inbound marketing sticks around. As you create more content, you’re creating a database of knowledge and wisdom that potential clients - and you! - can draw upon months or years in the future. This is the power of inbound - the long tail. The content you create will keep working for you.

Even armed with all of this new knowledge, venturing into the world of content and inbound marketing can be daunting. For help and advise on creating sharable content, or developing your inbound marketing strategy, contact Oriel Responsive today. As the team behind Lawyerly.co.uk, Oriel Responsive has industry-leading experience in creating innovative and attractive products for the legal services industry. Call us today on 0151 242 6755 or email info@orielresponsive.co.uk for more information on our services.

10 The Clapham Omnibus

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News

NATIONAL MEDIATION PROVIDERS ASSOCIATION

THE FIRST PORT OF CALL FOR MEDIATION

The National Mediation Providers Association is an umbrella body made up of the majority of mediation provider panels in England and Wales. The NMPA has launched a new service to give the public, businesses and lawyers easy access to accredited mediators and information about mediation.

without going to court. Even if court proceedings have started they can be put on hold in order to give time for mediation to take place.

To find out more or set up a mediation all an enquirer has to do is go to the NMPA website and complete an on line enquiry form or call the NMPA. They will be put in touch with a mediation provide who will contact them within one working day to give them further information and/or arrange a mediation.

With government cuts in legal aid funding in full effect, mediation is more important now than ever before. It is a vital part of the Ministry of Justice vision for civil justice that disputes should where possible be resolved without the need for parties to go to court, and the NMPA will now be the first port of call for mediation.

Mediation is cheaper, quicker and less stressful than traditional litigation. The NMPA is the first port of call for mediation for anyone looking to resolve their dispute

All NMPA mediation providers are accredited by the Civil Mediation Council. “I am delighted that we at the NMPA have been able to take the initiative to provide a comprehensive service at such a critical time, when the public need to be able to find more cost effective ways to access justice,” said Suzanne Lowe, chairman of the NMPA. “Mediation has a huge role to play, and NMPA is leading the way.”

COMPLICATED LEASEHOLD PROCESS MADE EASIER WITH NEW STANDARDISED FORMAT SAYS LAW SOCIETY

A new standardised procedure for buying and selling flats will make property transactions much easier said the Law Society.

The Leasehold Property Enquiries Form, or LPE1, which is launched today, is a standardised questionnaire for the industry, and was developed by the Law Society and other major trade bodies*.

It will capture in a single format for the first time, information about a property that is held by landlords, management companies and managing agents - for example, information about ground rent and service charges. Using the LPE1 form will make it easier for solicitors to advise clients because they will receive information in a standardised and consistent format.

It will not be mandatory to use the form but solicitors will get quicker answers by using it, especially if dealing with one of the larger managing agents who have IT systems designed to provide answers based on the LPE1 format.

Law Society Deputy Vice President Jonathan Smithers said: “Having a standardised format will be advantageous to sellers, buyers, solicitors and conveyancers dealing with leasehold property.”

“It will not only bring clarity to the part of the procedure that deals with obtaining necessary leasehold information but may also 12 The Clapham Omnibus

clarify some issues relating to time and cost. It will also mean that everyone becomes familiar with one form, inevitably making the process more cohesive.”

“The Law Society will make every effort to secure the support of key stakeholders, including the Government, to make this scheme a success.”

*

The new, industry created and approved Leasehold Property Enquiries Form LPE1 was developed by The Law Society, The British Property Federation (BPF) and The Society of Licensed Conveyancers (SLC), The Royal Institution of Chartered Surveyors (RICS), The Association of Residential Managing Agents (ARMA), The Association of Residential Letting Agents (ARLA) and The National Association of Estate Agents (NAEA). It will be rolled out to members of these organisations, with the overall concept supported by The Council of Mortgage Lenders (CML) and The Building Societies Association (BSA). The LPE1 was developed in conjunction with Move with Us.

News

DIVERSITY IN THE LEGAL SECTOR – RILIANCE LAUNCHES FREE SURVEY TOOL IN CONJUNCTION WITH THE LAW SOCIETY

Riliance has launched a FREE survey tool in conjunction with the Law Society to enable practices to collate and report on their firm’s diversity profile.

On the 8th of July 2013 the SRA announced new reporting requirements in this area. Firms are now required to complete their own diversity data and submit a report by 31st January 2014.

In close association with the Law Society, Riliance, the UK’s leading provider of risk and compliance software, has developed an easily administered and highly effective survey tool that it will help all law firms regulated by the SRA meet this reporting obligation.

The Riliance Diversity module provides the necessary functionality to enable practices to: • Give all members of staff the ability to submit their details in a completely confidential and anonymous manner • Manage and collate survey results • Produce an over-riding Diversity report on their firm and the Law Society’s Diversity and Inclusion Charter.

• Produce a report that reflects the requirements and can be used as a basis for submission to the SRA • Store diversity statistics securely for future years.

Mark Gidge, Chief Executive of Riliance commented, “last year the SRA commissioned a third party to conduct a survey but in 2013 firms will need to collect data themselves. We have taken the view that if we can help practices to collect, collate and manage the data by providing a high quality product that is simple and free to use, it will remove a huge burden for them this year.”

“Riliance has a very pragmatic approach to business and we believe that our presence in the market is as much about our approach to helping firms as it is about the products we deliver. With close to 800 legal practices using our core risk and compliance product, the Diversity module is a natural extension to the software suite and we have plans to add several additional modules in the future.”

To access the Riliance Diversity product practices simply register at www.legaldiversity.co.uk or contact us on 01829 731200 for further details.

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Human Rights

A HISTORIC FIRST IN COLOMBIAN HUMAN RIGHTS CASES! I have been involved in human rights work for around 40 years and this was the first time I had been asked to deliver an amicus curiae brief personally to assist an overseas court. In August I was asked in my capacity as Chair of the Law Society Human Rights Committee to travel to Colombia with Kirsty Brimelow QC, Chair of the Bar Human Rights Committee. Amicus briefs written by experts in specialist fields are often sent to Supreme Courts, Regional and International Courts to assist the court as a “friend of the court”.

For special reasons, we were asked to deliver this brief to the Superior Court of Santander, in Bucaramanga, Colombia.

This is a court of review and appeal from first instance trials.

The special reason why we were asked to do this long journey is because the case is about a human rights defender, David Ravelo, who has been sentenced to 18 years imprisonment in a case with serious irregularities. The criminalisation of human rights defenders is one tactic used to stop the defence of human rights in Colombia. Being a human rights defender is extremely risky, as death threats, attacks from para-militaries and assassinations are common. I only had two days in Colombia to meet David Ravello, in La Picota prison, Bogota, where he is serving his sentence, and then to fly to the regional city of Bucaramanga to meet one of the judges on the case.

I arrived at 10pm in Bogota on Monday night, and I was in a breakfast meeting at 7.00 am next morning, Tuesday 3rd September. At 9.00 I left the hotel with Kirsty Brimelow for our prison visit at La Picota prison with David Ravelo.

The prison security was not as heavy as we had expected, and the guards gave us a room with table and chairs to talk.

David Ravelo was in good spirits and pleased to see us because of the amicus brief we were to present next day in Bucaramanga. David is the representative for prisoners in his section of the prison, and while we were in the meeting, a guard came in and gave David information about a prisoner who needed a meeting to discuss his situation.

Ironically, David’s work as a defender is with CREDHOS, an NGO working with political prisoners. He told us he has had far more work since he has been in prison than before his detention. He has completed three years in detention since his arrest.

Next morning, Wednesday 4th September, we left for the airport at 5.00 am to take a plane to Bucaramanga. We were grounded because the airport was surrounded in fog, no planes could take off, and our flight was cancelled. We looked out and the fog was down all around the airport, and it was too 14 The Clapham Omnibus

Professor Sara Chandler, is Chair of the Law Society Human Rights Committee, and a Past president of South London Law Society.

dangerous to fly. We spent an hour or so trying to get another flight in time to keep our appointment with the judge.

The fog lifted and we eventually got a flight arriving at 12.30pm. So we had a lunchtime meeting with the lawyer who was accompanying us. Then we left for the court, the Palacio Judicial, which houses the Superior Court of Santander. Our meeting with the Judge was worthwhile, though the actual content of the meeting remains confidential.

Three judges review appeal cases and we left the amicus brief for further consideration by the judges in the case.

The Judge and local lawyers told us that this was the first time an amicus brief from international lawyers had been presented in the Superior Court of Santander. The brief had been researched and written by a team of volunteers from the Bar Human Rights Committee. It deals with national, regional and international law which allows amicus curiae to be presented in Colombian courts, and the issue of due process, the violation of human rights, and with irregularities in the trial process.

Then a surprise gig. I was top of the bill (and have the poster to prove it!) at a University conference attended by 400 students and academics at the Industrial University of Santander. Speakers included David Ravelo’s brother and his lawyer, the Dean of the Law Faculty, as well as Kirsty Brimelow and me. The conference was organised as part of a national protest which had been going on in Colombia that week. I spoke about the Colombia Caravana, the international network of lawyers who support human rights lawyers in Colombia. Lawyers from the Law Society, the Bar and the Chartered Institute of Legal Executives (CIlex) combined to form a joint delegation in 2008, and 70 lawyers visited Colombia to present a huge spotlight on the situation of lawyers. Following the visit, the Colombia Caravana UK Lawyers Group was formed, and the Colombia Caravana became a registered charity. Two further visits in 2010, and 2012 followed, and the next visit is in August 2014.

Then back to the airport in time for the last flight to Bogota. But the weather had worsened and we had another 5 hour wait for the weather to improve. We left Bucaramanga at half past midnight. Back to the hotel in Bogota by 2.00 am and then up at 5.15am on Thursday morning and back to the airport for my home flight to Heathrow, via Miami.

The presentation of an amicus from international lawyers in the Superior Court of Santander is a historic first. David Ravelo’s emblematic case has significance for the many human rights defenders who have been criminalised because they defend human rights. The amicus brief, prepared by the Bar Human Rights Committee was endorsed by many organisations, including the Law Society, CIlex, Solicitors International Human Rights Group and other UK legal organisations.

The international legal community works through the Colombia Caravana to raise cases of lawyers who are threatened, attacked and killed, by intervening on their behalf with the Colombian authorities. The high levels of impunity, 97% in the case of gross human rights violations, mean that perpetrators think they can kill without consequences. This means that expensive protective measures have to be put in place by the Colombian state, such as bodyguards and safe cars.

Effective prosecution of the perpetrators would be the most effective way of protecting human rights defenders and deterring future attacks. Lawyers must be able to carry out their work safely otherwise the whole justice system is undermined. Support from the international legal community, in many ways, including the presentation of amicus curiae, is vital for Colombian human rights lawyers, and Caravana members will continue to support their defence of human rights as long as is necessary.

Anyone interested in joining the Caravana should go to www.colombiancaravana.org.uk, or contact Colombian.caravana@gmail.com.

Property

SOUTH LONDON LAW SOCIETY:

HOUSING UPDATE 2013 Giles Peaker, Partner, Anthony Gold Solicitors

It has been a busy year in housing and residential landlord and tenant law. While the most significant case law concerned tenancy deposits and leasehold service charges, the arguments over article 8 defences in possession cases continue, and the changes made to Local Authorities’ powers to set out their own allocation scheme for social housing look likely to be fertile ground for challenges in the future.

TENANCY DEPOSITS YET MORE ISSUES

New rules came into force 6 April 2012 with Localism Act amendments. However, many landlord and solicitors don’t seem to have caught on. The amendments were aimed at undoing the effects of Court of Appeal judgments on late protection and claiming only during the period of the tenancy.

The key points of the amendments are: • Deposit to be protected within 30 days of receipt (up from 14 days).

• Prescribed information to be served on tenant within 30 days of receipt • No section 21 notice may be validly served until protection of deposit and provision of prescribed information (within the 30 days).

• If the landlord or person taking the deposit does not comply, the consequences are: • On failing to protect deposit in 30 days – tenant/relevant person can bring a claim for either the protection or return of the deposit and a penalty of between 1 to 3 times the deposit amount (at the court’s discretion, rather than the previous 3 times fixed penalty).

• On failing to provide the prescribed information within 30 days, the tenant can also bring a claim, even if deposit protected.

• If the deposit was not protected, no section 21 notice can be served until the deposit has been returned to the tenant (less any ‘agreed deductions’) • If the deposit was protected within 30 days, but prescribed information not given, no s.21 notice can be served until the prescribed information has been given to the tenant.

• Late compliance does not avoid the possible claim under s.214.

Giles Peaker is a partner in the housing and public law team at Anthony Gold Solicitors. He qualified with Anthony Gold in 2008. Giles acts for tenants and landlords in tenancy, residential and commercial lease disputes.Giles was described as 'One of the most impressive housing solicitors working today'

by Legal 500. He is chair of the Housing Law Practitioners Association and edits the 'Nearly Legal: Housing Law News and Comment' website.

16 The Clapham Omnibus

• A claim can be brought after the end of the tenancy.

• Deposits taken before 6 April 2012 but not protected (and/or prescribed information not served) had to be protected (and/or served) by 6 May 2012. If this was not done, then the new penalties apply.

CASE LAW

A decision on provision of prescribed information by the Court of Appeal in Ayannuga v Swindells [2012] EWCA Civ 1789.

This was a counterclaim by the tenant to possession proceedings based on rent arrears. The landlord had protected the deposit but not provided the prescribed information to the tenant, instead giving enough information to identify the scheme in which the deposit was held.

The landlord was successful at first instance. However, on appeal, the landlord’s argument that the requirement was largely procedural, that the purpose of the legislation was to protect deposits (which had been done) and that the tenant could have found out all he wanted to know from the scheme administrator, was rejected.

The Court of Appeal held that the information requirement was not merely a minor procedural one. The information was of real importance as it told tenants how they could seek to recover their money and how they could dispute deductions without litigation. The lower Court had acted outside the bounds of proper judicial evaluation. The landlord was clearly in violation of the order and the penalties of s214, Housing Act 2004 applied.

The landlord was ordered to return the deposit plus a penalty equivalent to three times the deposit.

The lesson is clear. The prescribed information needs to be given to the tenant in full. Given the very clear decision of the Court of Appeal in Ayannuga v Swindells, it is also clear that compliance with provision of prescribed information with the 30 days should also be taken strictly by the courts. It is not enough that some information has been provided, or that the tenant has been given sufficient information to go off to find the rest.

The Court of Appeal made things still harder for errant landlords in Superstrike Ltd v Rodriguez [2013] EWCA Civ 669. This concerned deposits taken before the deposit protection legislation came into force in April 2007, but has potentially much wider significance in terms of the meaning of ‘a new tenancy’.

In Superstrike, a 12 month assured shorthold tenancy had been granted in January 2007, before the deposit rules came into force. A deposit was taken. At the expiry of the fixed term in January 2008, the tenancy became a statutory periodic monthly tenancy. Eventually the landlord served a section 21 notice and began possession proceedings. The tenant defended on the basis that the section 21 notice was invalid as the landlord had not complied with the deposit rules on the arising of the statutory periodic tenancy.

The Court of Appeal held that: (i) A statutory periodic was certainly a ‘new tenancy’ (via N & D (London) Limited v Gadson (1991) 24 HLR 64 and the wording of statute.

Property

(ii) The deposit had been ‘received’ in respect of the new tenancy, after the rules had come into force. While no money had physically changed hands, by cash, cheque or bank transfer, s.212(8) Housing Act 2004 referred to money in the form of cash or otherwise, and this should be construed broadly. Each ‘new’ tenancy was a fresh contract and so the deposit had to move between contracts (or it would only be useable by the landlord in relation to the initial 12 month tenancy, making it useless). There was a mechanism to move the deposit between contracts, even if it was not expressly referred to, and therefore the deposit had been ‘received’ again for the new statutory periodic tenancy.

The deposit should have been protected and the s.21 notice was invalid. There was no claim for the penalty for failure to protect, though one may follow.

While Superstrike only expressly applies to tenancies that began before April 2007 but became statutory periodic after the deposit rules came into force, the implications are much wider. Clearly, a ‘renewal’ tenancy for a further fixed term is also a new tenancy.

So, any tenancy ‘renewal’ or moving from fixed term to statutory periodic, will be a ‘new tenancy’ for the purposes of Housing Act 2004, and the deposit, if one was taken, will be ‘received’ anew for each new tenancy.

The obligations on receiving a deposit are two fold. The first is to ‘comply with the initial requirements of a scheme’. As the schemes’ initial requirements do not include ‘re-protecting’ the deposit on a new tenancy of the same property, this is not a problem.

However, the second requirement is to serve the ‘prescribed information’ on the tenant within 30 days. Failure to do this within 30 days leaves a possible claim under s.214, and means that no s.21 is valid until the prescribed information has been served. Late service does not prevent a claim.

It is doubtful that many landlords and agents have re-served the prescribed information (which could well be exactly the same as previously served) on ‘renewal’ of tenancy or moving from fixed term to statutory periodic. It is entirely possible, then, that many tenants have a defence to proceedings based on a section 21 notice served after ‘renewal’ or change to statutory periodic.

This could well be a very widespread issue, as might be s.214 claims for the penalty and deposit where the prescribed info was not served on ‘renewal’, though the court would probably exercise its discretion to restriction the penalty to 1 times the deposit in those circumstances.

On the issue of ‘rent in advance’, we have a Court of Appeal decision. Johnson v Old [2013] EWCA Civ 415, originally in Brighton County Court, concerned a poorly prepared tenancy agreement. It stated the rent as being payable both six monthly in advance but also had a separate clause stating it was payable monthly. Clearly this was not what had been agreed between the parties and it would not have been possible for the landlord to enforce it. However, at first instance the judge appeared to take the document at face value and held that the rent in advance component was a deposit. On appeal to a Circuit Judge, this was overturned. The CJ found that rent in advance was not a deposit under the meaning of Section 212(8).

The tenant appealed to the Court of Appeal, which set down that rent in advance was not “held as security for the performance of any obligations of the tenant, or as security for the discharge of any liability of the tenant” and was therefore not a deposit. The test in this instance was a simple question. If the tenant had actually been asked for the monthly rent payments, would she not have replied that she had already paid them?

ARTICLE 8 – THE ONGOING BATTLEGROUND

A rare successful Article 8 defence to a possession claim on an introductory tenancy in Southend-on-Sea Borough Council v Armour (2012) QBD 18/10/2012.

Mr A was the introductory tenant of Southend, living in a flat with his 14 year old daughter. The tenancy started in January 2011.

Over the next 3 months there were three complaints that Mr A had been verbally abusive to a neighbour, a member of staff of the property managing agents and some electrical contractors.

It was also alleged that he had switched on electricity while contractors were working resulting in one suffering a shock.

Southend decided to seek eviction, a decision upheld on review.

Between issue of the claim and the possession hearing, some eleven months elapsed, with a couple of adjournments. In the meantime, Mr A had been diagnosed with Asperger’s Syndrome and Severe Depression, and he lacked capacity to defend the claim. The case proceeded with a litigation friend.

There had been no further incidents between March 2011 and the hearing of the claim in March 2012. There was also evidence from Mr A’s probation officer and a youth worker as to his recent good behaviour and medical evidence on the potential effect of eviction on Mr A’s physical and mental health.

The Court at first instance found that while Southend had been justified in bringing the claim, and that at the date of claim it would have been lawful and proportionate, Mr A’s subsequent good behaviour and the absence of any further incidents were relevant factors in assessing proportionality at the date of trial. On that basis, it was not proportionate to make a possession order.

Southend appealed. Their argument on appeal was that: 1

Mr A’s compliance with the tenancy agreement issue of the claim was not a relevant consideration for an assessment of proportionality.

2

If the good behaviour was a factor, it was insufficient on the facts to give rise to an Article 8 defence.

3

The Recorder should have approached her decision on the same basis as it would have been considered at the initial hearing, as Mr A should not gain an advantage from the delay caused by the adjournments.

Mr Justice Cranston dismissed the appeal.

The overriding principle was that consideration by the Court depended on the facts of each case. It was clear that subsequent behaviour, even good behaviour, could be a relevant consideration for proportionality. The proportionality review by the court had to be on the basis of the material available at the time of the hearing. The Recorder had approached the issue of proportionality correctly and there was no error in her decision, which was a ‘model judgment’ in how such cases should be dealt with.

This is useful confirmation that the proportionality review by the court is to be based on all materials up to the date of that hearing, including post issue materials and events (or lack of them).

However, Southend have sought and just been granted permission to appeal, challenging whether the ‘good behaviour’ was sufficient to give rise to a proportionality defence. There is also an issue of new evidence. We will have to wait and see. continued The Clapham Omnibus 17

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More troublesome for Article 8 defences was the case of Thurrock Borough Council v West [2012] EWCA Civ 1435.

West’s grandparents (or great grandparents, there was some doubt) were tenants of Thurrock. W had joined them in the property and he was later joined there by his son and his partner. After the death of the grandfather the tenancy then vested solely with the Grandmother. After her death in December 2010 W sought to succeed to the tenancy. This second succession was barred by s37, Housing Act 1985. Accordingly, a notice to quit was served and T began proceedings for possession.

At first instance, W defended the proceedings entirely on the grounds of Article 8. The relevant parts of the defence read as follows: “7 The First Defendant will maintain that under Article 8 of the European Convention on Human Rights he is entitled to the right of respect for his home and that there shall be no interference by a public authority with the exercise of this right except in accordance with the law and as is necessary in a democratic society in the interests of the economic well being of the country, ie, that any Court Order must be proportionate.

8

In all the circumstances of the case the First Defendant, having occupied and paid rent for his home for nearly four years since April 2008 and with his partner Samantha Downward [sic] and son Harley West for over since [sic] years since 28th October 2009, it is not proportionate that he and his family should be evicted from their home.”

This is worth quoting as it also formed the primary argument before the Court of Appeal. The case was allocated to the multitrack and at trial the DJ dismissed T’s claim. There was heavy reliance by the DJ on Pinnock. In particular the DJ set out his stall with the following words: 19 However, on balance and exercising the test for proportionality, it seems to me that to evict this small family and this young child from this property to re-house them in another property which is one bedroom smaller, against all the background of the connection would be disproportionate.

20 Lord Neuberger clearly highlighted that people who might suffer physical and mental difficulties might well fall into a special category. It seems to me that families with young children fall into a similar situation and although they are not expressly included in that paragraph, it seems to me that it is another factor which in this case is of particular weight here.

For these reasons, I find that the Article 8 defence succeeds.”

The Council appealed.

The Court of Appeal set out a series of 8 principles to be applied to Article 8 defences drawing on the various authorities.

I suspect this fairly clearly laid out tick-list will end up becoming the de facto standard in the County Courts. In summary the principles are: 1

It is a defence to a local authority claim for possession that it would be disproportionate in all the circumstances and therefore a breach of the Article 8 right to respect for the home;

2

The test to be applied is whether possession is a proportionate means of achieving a legitimate aim;

3

The threshold for establishing that a local authority is acting disproportionately is high and circumstances will have to be truly exceptional;

4

The threshold is high because there is a public policy interest in local authorities managing their own stock effectively. They will normally be better equipped to make management decisions than the Courts;

5

Where the local authority has a clear legal right to possession and there is no strong evidence that the authority is not acting in accordance with its duties then these fact alone are a strong factor in support of the local authority position without the need for further explanation; 18 The Clapham Omnibus

6

Any Article 8 defence must be pleaded and set out in sufficient detail to show that is meets the threshold. It is not enough to simply cry “Article 8 without a detailed summation of the reasons why it should apply;

7

The Court must consider any Article 8 defence on a summary basis at the earliest opportunity and consider whether it reaches the threshold. If it does not it must be struck out or dismissed;

8

Where an Article 8 defence has been established it will rarely be sufficient to allow someone who has no legal right to remain in a property absent Article 8 to do so.

In this case there was no legal right to remain in the property and the threshold was considered not to have been met. The Court did not agree that W and his family fell into the special category outlined by Lord Neuberger in Pinnock and cited by the DJ. There was no suggestion that the Council would not, in fact, rehouse W elsewhere.

Appeal allowed.

Notably, the Court of Appeal went further stating that the Article 8 defence should never have been allocated to the multi-track and should have been dismissed summarily.

In R(CN) v Lewisham LBC and SSCLG [2013] EWCA Civ 804 and R(ZH) v Newham LBC and SSCLG [2013] EWCA Civ 805, the Court of Appeal held that article 8 does not require possession proceedings to be brought before a person can be evicted from temporary accommodation occupied under licence under section 188 or section 190(2) Housing Act 1996 (Accommodation provided pending homeless s.184 decision or pending review). The availability of judicial review of the decision to evict satisfies the Article 8 requirement to have proportionality considered by a court. It looks likely that these cases will go to the Supreme Court, and this will amount to a challenge of the decision in Desnousse v Newham LBC [2006] Q.B. 831 that the Protection from Eviction Act does not apply to homeless temporary accommodation licences.

LEASEHOLD CONFUSION

The Section 20 Landlord and Tenant Act 1985 consultation process for ‘major works’ has been thrown for a bit of a loop by two recent decisions.

Philips v Francis (No.2) [2012] EWHC 3650 (Ch).

The effect of s.20, 1985 Act and the regulations made thereunder is that, if a landlord carries out work to which any leaseholder will be asked to contribute more than £250 in an accounting period, then he must either consult the leaseholders in the prescribed manner or obtain dispensation from the LVT. If this is not done, then the recoverable costs are capped at £250 per leaseholder.

The issue in this case was whether the proposed works were one set of qualifying works or whether they could be broken down into sub-components. If they were one set, then the total costs were capped at £250 per leaseholder, whereas, if they were separate, then some did not require consultation at all and, in any event, more money would be recoverable. There had been no consultation.

The trial judge found that they were separate items and that it was not until relatively late in the day that any sort of unified project emerged. The reality was that one job had simply led to another.

The High Court disagreed. The idea of looking at “sets” of qualifying works came from the case of Martin v Marylands Estates [1999] EWCA Civ 3049. But that case was about the previous version of the consultation requirements. Under those old provisions, the focus had been on the cost of the works. The new approach was on the cost to the leaseholders. Further, the old consultation requirements were just about price, whereas the new approach included a requirement to consult once the intention to proceed had been formed. There was no reason to look for “sets” of qualifying works. The correct approach was to look at each of “the works” and decide if consultation was required.

Property

basis for distinguishing between minor, technical or substantial breaches of the regulations When considering the issue of prejudice, the legal burden to establish some prejudice rested with the leaseholders, with the landlord then being required to meet it later. The prejudice had to be directed to the two issues under s.19. There was not an enormous hurdle for the leaseholders to overcome and the LVT was likely to look reasonably favourably on the leaseholders.

Turning to the powers of the LVT on dispensation. The LVT was entitled to grant dispensation on terms. Those terms could be (i) a shortened consultation process; (ii) a requirement that the landlord cap the recoverable costs; and/or (iii) that the landlord pay the leaseholders reasonable costs of testing the application for dispensation.

On the facts of the case, a discount of £50,000 on the recoverable works, plus a requirement that the landlord pay the reasonable costs of the leaseholders in testing the application were adequate conditions on which to grant dispensation.

Three scenarios to consider: (a) Where major works are being done which are already qualifying works (i.e. costing any one leaseholder more than £250), then this decision doesn’t change anything. For example, if you were replacing the roof (cost £300 per leaseholder) and windows (£350 per leaseholder), then you already should have been consulting on each project.

Nothing in this decision affects that. (b) The first problem comes, however, where the individual works were not going to cost over £250. Say, for example, that the roof repair costs were £200 per leaseholder and the windows a further £200 per leaseholder. Prior to this case most people would have said that there were no qualifying works here as neither project was costing a leaseholder more than £250. This decision means that we’d be wrong to continue with that approach. Now, we have to look at the total cumulative cost to the leaseholder (in this example, £400) in the ‘accounting period’. Which means that freeholders now need to consult. (c) The second problem comes with what might be called “totting up”. Suppose lots of small projects are being planned in any year (drain flushing, minor repairs, etc). It might be said that if those cumulatively add up to more than £250 being charged to any leaseholder, then s.20 is now applicable.

That, for freeholders and managing agents, is the worst case scenario. How would it work with an unexpected repair which suddenly took the total costs over £250? Is there a distinction between planned works and unanticipated costs?

The ramifications of this case will have to play out in the First Tier Tribunal (Property) and the Upper Tribunal.

However, the effect of not consulting has also changed, via a Supreme Court case on retrospective dispensation from the consultation requirements, Daejan Properties Ltd v Benson [2013] UKSC 14.

In this case, the landlord wanted to do some £400,000 of works, of which £280,000 was anticipated to be recoverable from leaseholders as a service charge. The LVT found that there had been non-compliance with the consultation regulations as it appeared that the decision as to who to award the works contract to had already been made before the conclusion of the statutory consultation period. The LVT, UT and CA all refused to grant dispensation.

The Court of Appeal was particularly interesting. In short, it was held that consultation was a good in and of itself and that any breach was prima facie prejudicial to the leaseholders. It was not for leaseholders to prove prejudice, but for landlords to show there was none. The financial consequences – to either party – of granting or refusing dispensation were irrelevant.

In direct disagreement with the Court of Appeal, the Supreme Court held that the consultation process was not an ends in itself and there was no inherent value to the process, save insofar as it went to the two issues under s.19. There was no

So, if a landlord has failed to follow the consultation requirements, they can seek dispensation, or retrospective dispensation. They may have to bear the tenant’s costs in the application and may face a discounting of recoverable costs, but crucially, it will be for the tenants to show some actual prejudice to them – e.g. that they could have found a cheaper tenderer. Simply not having been consulted is no longer a prejudice in itself.

LOCALISM ACT. IN FORCE – MOSTLY – FROM APRIL 2012

2 parts – Homelessness and Flexible tenancies and Allocation.

HOMELESSNESS

Private sector discharge of duty. From October 2012, it became possible for Local Authorities to fulfil their housing obligation by an offer of a private sector tenancy, which the applicant could only refuse on the grounds of suitability.

The offer must be for a tenancy of at least 12 months. The local authority must be satisfied as to the standard of the property. If the applicant becomes homeless in the two years following the private sector offer, they are to be treated as if there was a continuing duty, rather than making a fresh homeless application. They will be treated as homeless from the service of a section 21 notice, rather than having to wait for eviction as is Council’s usual practice now.

The offer must be suitable and reasonable for the applicant to occupy, as with any other offer.

However, the only option the applicant has to contest such an offer is the section 202 review of suitability procedure. The usual advice is that an applicant should accept the offer and immediately ask for a review, so they at least have somewhere to live if the review fails. Quite how that is to work when accepting the offer entails signing a 12 months tenancy is unclear, unless the authority is to negotiate break clauses with the private landlord.

The likelihood for many London authorities is that offers of private accommodation will be made outside of London, given the shortage of private rental available at LHA rates. Suitability in terms of location will therefore be a major issue. On suitability and ‘out of borough’ placement, The Government has issued guidance in the Homelessness (Suitability of Accommodation) (England) Order 2012.

The order states that the following matters are to be taken into account in determining whether, in respect of location, accommodation is suitable for a person: a

whether the accommodation is situated outside the district of the local housing authority and how far away

b the significance of any disruption which would be caused to the employment, caring responsibilities or education of the applicant or their household c

access to medical facilities continued The Clapham Omnibus 19

Property

d access to amenities such as transport, shops and other necessary facilities.

But that is ‘taken into account’, not determinative.

A recent County Court section 204 appeal case shows some of the issues that arise in such suitability decisions as well as Local Authorities’ approaches to them Arfon Abdi v LB Waltham Forest.

Bow County Court 2 July 2012 – see http://nearlylegal.co.uk/blog/2012/11/suitability-of-time-anddistance for details.

It may well be that a merry-go-round of homeless cases emerges, with a 12 month private sector tenancy then being ended and the applicant returning to the Authority with a continuing duty to house.

FLEXIBLE TENANCIES

Local Authorities can now grant ‘flexible tenancies’. These are a form of secure tenancy but are a) for a fixed term of between 2 and 5 years and b) at a rent of up to 80% of market rent. The Authority has to have a housing policy on flexible tenancies in place before it can start offering them.

If a local authority wishes to offer a flexible tenancy it will need to advise the tenant in writing that the tenancy to be offered is a flexible tenancy. The prospective tenant could then request a review of the length of the proposed tenancy but only if the proposed length is not the length set out in that authority’s policies in respect of granting flexible tenancies. There is no right of review of the decision to offer a flexible tenancy. The only route of challenge would be judicial review.

If the local authority does not wish to extend the term of the tenancy, it must give six months’ written notice stating that it does not propose to grant another tenancy on the expiry of the current flexible tenancy. The local authority must set out its reasons for not proposing to grant another tenancy and inform the tenant of their right to request a review of this decision.

If the Council seek possession and the review requirements have been satisfied, possession is mandatory, like an introductory tenancy, subject only to public law and proportionality defences.

ALLOCATION

The Localism Act returns local authorities to the position where they can exclude whole classes of applicants, for example, all applicants in rent arrears regardless of the particular circumstances of the individual. The local authority will also have the power to prescribe classes of people who will qualify for social housing. This means that applicants will qualify or be disqualified for social housing based on whether they fall within a particular “class”. The only restriction is that the local authority cannot determine that a class of people who are ineligible due to their immigration status will become eligible. There are also the required ‘reasonable preference’ for the homeless, but of course, there is now the option of private sector discharge for that.

The upshot is that Local Authorities have virtually complete freedom to determine who is eligible for the housing register and conditions for priority. Some examples of Allocation policies either decided or under consultation by the likes of Westminster, Hammersmith and Fulham, Wandsworth and Barnet include upper earnings limits, of about £40,000 per household, priority for those in employment or training, residence in the borough for an extended period. Some of these councils have proposed, or brought into operation similar restrictions on renewal of flexible tenancies. Barnet for instance is offering under 25’s a two year flexible tenancy, with renewal contingent on being in work or training ‘in the last 6 months before the end of the term. As the renewal decision has to be made 6 months before the end of the term, that will be interesting in practice. The Secretary of State said that 2 year terms should only be in exceptional circumstances. One might wonder if being under 25 is exceptional in this way.

So, allocation policies may differ wildly between councils, making knowing the details of the council’s policies vital, but also perhaps opening up some of the policies to judicial review.

20 The Clapham Omnibus

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Practice Management

OWNER MANAGED BUSINESSES TO GET LENDING BOOST AS ALLIED IRISH BANK (GB) CREATES NEW FUND FOR BUSINESSES IN LONDON AND THE SOUTH EAST

Allied Irish Bank (GB), today, announces a £100million fund for Owner Managed Businesses seeking medium or long term capital finance for growth in London and the South East.

The announcement of this fund today further demonstrates the Bank’s commitment to working with businesses in London and the South East, providing competitively priced finance and full banking facilities to established, growing businesses.

Allied Irish Bank (GB)’s Owner Managed Business fund combines flexible finance options with competitive daily banking, including: • A new ‘Owner Managed Business’ loan for either working capital or capital expenditure • Arrangement fees waived on finance up to £10m agreed by 31 December 2013 and drawn down within 60 days of offer letter • Highly competitive rates • Preferential day-to-day banking packages Head of GB Business, Gerard O’Keeffe, said: “Many business lending initiatives are failing to connect in the UK because banks are not taking into account the diversity of the so called SME sector. We deliberately made this a targeted programme because we know Owner Managed Businesses especially well, and as the engine of the economy, we want to make it as easy as possible for them to access capital and expand their businesses. Both the British and Irish governments have launched schemes to provide 22 The Clapham Omnibus

access to finance for businesses and as a specialist business bank in Britain, we are eager to play our part in that”.

Regional Director, Peter Slattery adds, “Our loan book is fully funded by customer deposits and we are very pleased that we can use this to support more Owner Managed Businesses and professional practices in London and the South East by lending to help them grow. We’re seeing an uplift in demand from companies who seem increasingly confident about the outlook for growth. While it may be too early to say the tide has turned, we’re experiencing a steady rise in enquiries for financing support across many local business sectors including healthcare, leisure, professional services and manufacturing.”

Business Moneyfacts Editor, Lee Tillcock comments “In an environment with a perceived lack of funding available for smaller businesses Allied Irish Bank (GB)’s Owner Managed Business Fund is a great initiative. The waiving of arrangement fees should make for a very competitive offering in the business loan market and will further reinforce the Bank’s reputation following their short listing for ‘Business Bank of the Year’ and ‘Best Service from a Business Bank’ at this years Business Moneyfacts Awards.”

Allied Irish Bank (GB) encourages Owner Managers looking to access competitive finance to get in touch with a local branch, visit www.aibgb.co.uk or call 0845 045 0900 Monday to Friday 8am to 8pm for more information.

“Allied Irish Bank (GB) have played a pivotal role in the restructure and ITQYVJ QH QWT DWUKPGUU They’re always receptive to our changing needs and think outside the box YJGP RTQXKFKPI Ă&#x;PCPEKCN solutions“ Dino Skinner, Managing Partner Healys LLP

We support our clients and they support us Allied Irish Bank (GB) is a long established specialist business bank with a full TCPIG QH DCPMKPI UGTXKEGU CXCKNCDNG HQT RTQHGUUKQPCN Ă&#x;TOU &CTTCIJ 1Ă‚/CJQP[ 5GPKQT $TCPEJ /CPCIGT #NNKGF +TKUJ $CPM )$ /C[HCKT $TCPEJ $GTMGNG[ 5SWCTG /C[HCKT .QPFQP 9 , ## 2JQPG 'OCKN FCTTCIJ Y QOCJQP["CKD KG /KEJCGN 9KNMKPU 5GPKQT $TCPEJ /CPCIGT 5QWVJ 'CUV #NNKGF +TKUJ $CPM )$ $TQONG[ $TCPEJ VJ (NQQT *CPQXGT 2NCEG 4CXGPUDQWTPG 4QCF $TQONG[ -GPV $4 *2 2JQPG 'OCKN OKEJCGN C YKNMKPU"CKD KG

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Practice Management

OUTCOMES FOCUSED REGULATION – THE LIGHT DAWNS

The tide of opinion seems to be turning in favour of Outcomes Focused Regulation.

Research conducted by the Solicitors Regulation Authority in February 2013 found that 50% of respondents had a ‘favourable’ opinion about OFR, compared with only 36% in the previous year. Now, Legal Services Board research has found that 78% of respondents agreed that “legal services regulation reinforces best practice and good management”.

• Net profits being drawn with no reserve pot retained

By Ian Muirhead, Director, SIFA www.sifa.co.uk At least part of the credit for this improvement must be attributed to the more constructive attitude adopted by the SRA. Having originally dismissed practitioners’ concerns with the famously condescending and unhelpful remark “if you’re scared of OFR, perhaps you haven’t been listening”, the same SRA spokesperson went to the heart of the matter when she commented in a speech to the SRA COLP and COFA Conference in April 2013 “I cannot over-emphasise the centrality of our focus on the firm and those responsible for running the firm”.

The requirement to appoint compliance officers, and the publicity given to recalcitrant firms, may have given some practitioners the impression that they could safely delegate compliance matters to their appointees. The “chambers” mentality persists, which permits individual partners to do things their own way rather than acting as members of a team. Too many managing partners can still be heard to say “I couldn’t possibly tell my partners what to do!” The writer was speaking recently to the practice manager of a well-known regional firm, who said “as a result of acquisitions we are now 80 partners strong, but nothing has changed. It’s like trying to herd cats. We have exactly the same organisational issues, but on a larger scale”.

There has been a striking surge in the number of firms aspiring to Lexcel accreditation and subscribing to on-line compliance systems, and both have a valuable part to play in providing the framework for compliance. However, such systems necessarily revolve around an individual, whereas the key to OFR lies in Principle 8, the new addition to the 2011 SRA Code of Conduct, which places responsibility firmly on management as a whole, requiring firms to run their businesses in accordance with proper financial management principles, actively monitoring financial stability and viability. Systems and controls must be maintained for monitoring risks to money and assets, and financial stability and processes installed to control budgets, expenditure and cash flow and to identify and monitor financial risks, including credit.

The importance of Principle 8 has been underlined by SRA’s recent concentration on financial stability, and the particular issues which it regards as critical, namely: • Drawings being made by partners irrespective of cash in the bank 24 The Clapham Omnibus

• Short term borrowings being made to fund partners’ tax • VAT received being used as cash received, resulting in further borrowings to fund VAT due to HMRC • Borrowings exceeding net assets.

This might be read as a call to arms for COFAs, but the required remedial action potentially involves equity partners in general, and indeed the examples of poor governance provided by the SRA include the denial to COFAs and the reporting accountants and even some partners of access to vital financial information by over-dominant senior partners or small inner circles of managers, whose authority other members of the firm are reluctant to challenge.

Solicitors could do worse than take a leaf out of the book of some of the new entrants to the legal services market. It goes without saying that these firms will have defined organisational structures and decision-making hierarchies, supported by defined job roles which are promulgated to all members of the organisation. But this simply provides the basis for their business planning.

Similarly, solicitors should regard regulatory compliance as providing the platform for business development. Is the fact that the members of the firm have the same qualification a valid basis for their client proposition? Do the constituent activities of the firm hang together as a cohesive business proposition?

Should particular specialisations such as PI and legal aid be retained? What complementary services might be added?

When solicitors think about development they tend to think in terms of acquiring or being acquired by other law firms – more of the same. What is striking is that the new entrants regard legal services as being a logical extension of their current services, and significantly it is their client databases which enable them to take advantage of the principle that it is far easier to sell an additional service to an existing client than it is to sell an existing service to a new client.

In the context of practice development, there is much to be said for solicitors establishing formal relationships with fee-based financial advisers, whose business complements many areas of legal practice and who enjoy regular client relationships based on client factfinding and database management of an order which is unknown to most law firms.

It is ironic that in the SRA’s book compliance goes hand in hand with risk. When it comes to commercial risks, most solicitors are too risk-averse for their own good, but the risks which preoccupy the SRA are the risks arising out of inefficiency and poor administration. Business success will be achieved by those who take commercial risks.

TIMELY OUTSOURCING GUIDE

Practice Management

HELPS LAW FIRMS TO WORK SMARTER

In an effort to introduce legal practices to smarter and commercially focused ways of working, Quill Pinpoint has published a guide on how outsourced cashiering works.

As the profession continues to suffer mass redundancies and law firm closures, as well as face increased competition from the growing number of ABSs and newly merged adversaries, the handy guide aims to instruct the uninitiated on the merits of outsourcing as a means of surviving and thriving in a challenging marketplace.

The guide explains in layman’s terms the procedure for outsourcing legal accounts as a simplified 5-step process, along with the extensive range of benefits to be gained from alleviating the burden of this heavily regulated back office function.

Quill Pinpoint has over 20 years’ experience in outsourced cashiering.

Their expertise brings a tried-and-tested cashiering solution direct to law firms.

Benefits cited in the report include higher earning power by refocusing on fee earning and marketing; financial savings with less manpower and infrastructure requirements; healthier cash flow resulting from up-to-date bookkeeping; business continuity and disaster recovery

planning with continuous cashier support and 24/7 software availability; streamlined annual accounting with a current set of accounts and privileged accountants access to your data; and automatic compliance as the cashiering service adheres to the Solicitors’ Accounts Rules and other regulatory guidelines.

Julian Bryan, Managing Director at Quill Pinpoint, explains how the “difficult market conditions are hitting law firms hard”.

“In this harsh economic climate, firms are finding it difficult enough to stay afloat, let alone make a profit”, Julian adds. “We’ve published the guide now because practices need all the help they can get, and may not yet have considered the possibility and advantages of outsourced support.

Outsourcing is a survival strategy”.

Julian admits to having an ulterior motive for the guide’s publication – dispelling any myths about outsourcing being an expensive and complicated solution.

“The guide gives me the opportunity to set the record straight”, states Julian.

Quill Pinpoint clients have increased profit costs by over 25%... how could you?

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Dedicated cashier – personal service Data in the cloud – business continuity assured

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“Contrary to often-held beliefs, outsourcing is much more cost effective than running an in-house cashiering team.

The monthly fee is based upon activity levels on a pay-as-you-go contract.

Moving to an outsourced environment couldn’t be easier. There’s no software to install locally and firms have their own assigned cashier so it’s a friendly service.

If practices are just setting up in business or their cashier has recently resigned, they should give us a call”.

The guide is published on the Internet Newsletter for Lawyers website at http://www.infolaw.co.uk/newsletter/2013 /07/quill-pinpoint-how-outsourcedcashiering-works.

As well as its Pinpoint Interactive legal accounts outsourcing service, Quill Pinpoint offers a payroll service for companies who want to reap the full benefits of outsourced support.

If you want to find out more on Quill Pinpoint’s products and services, get in touch by email at info@quill.co.uk, call 0161 236 2910 or visit www.quill.co.uk.

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The Clapham Omnibus 25

BERNARD MATTHEWS – Probate

WILL CONSTRUCTION AND THE DOCTRINE ELECTION –

FOOD FOR THOUGHT FOR ESTATE PLANNING LAWYERS

SCARF V MATTHEWS [2012] EWHC 3071 (CH)

The above case was handed down in September of last year but deals with a number of points relevant to private client practitioners of which it useful to have a reminder. Given the diversity of clients using legal services in south London, many of whom have international connections, the case has relevance in particular to south London lawyers.

Estate planning forms a significant part of many a solicitor’s practice, in small firms especially. It is also a discipline in which a lot can be at stake. It is therefore important to consider what the effects of assets which clients own abroad might be, and to seek appropriate specialist advice.

FACTS OF THE BERNARD MATTHEWS DECISION

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

His estate at first glance appeared relatively straightforward: 26 The Clapham Omnibus

By two French wills he left his moveable and immoveable French estate to his partner, Ms. Marteyn. That estate consisted of some cash and a villa in St. Tropez worth some €15 million.

Under his English will, there were a few pecuniary legacies (including a gift of £1 million to his partner) and the residue was left to his natural son, Frederick, subject to the estate bearing all ‘taxes arising as a consequence of [the testator’s] death’ in both England and France. (In France, the beneficiary receiving the property is personally liable for the inheritance tax arising on it.)

The adopted children were to receive nothing. Mr Matthews left a letter expressing his wishes and reasons in relation to his estate, including his wish that his adopted children respect his wish that Ms Marteyn inherit his villa, notwithstanding the French rules of forced heirship.

His adopted children, however, decided to go against their father’s wishes and to enforce those rights. In addition to enforcing their rights in France, the adopted children also sought to claim that the English estate should bear the inheritance tax which arose in respect of their shares in that property.

This left Ms Marteyn with just 25% of the value of the villa.

The executors of the estate applied to the Court to determine whether the English children could claim the tax from the English estate.

DOCTRINE OF ELECTION

Ms. Marteyn, who was unhappy with the fact the adopted children were not following their father’s express wishes, was also unhappy that they were seeking to claim inheritance tax on their shares on top from the estate.

All parties agreed that the clauses in the will directing the payment of taxes arising from Mr Matthews’ estate in England and France acted effectively as a legacy of a sum equal to that tax. It was also agreed that the English and French wills were all to be read together as one testamentary disposition.

Ms Marteyn contended that in these circumstances, the doctrine of election applied such that the adopted children could not go against the wishes of their father in France and benefit from the “legacy” under the English will.

Probate

In Codrington v Codrington ((1875) LR HL) the principle of the doctrine of election was summarised to be, “an implied condition that he who accepts a benefit under an instrument must adopt the whole of it, conforming to all its provisions and renouncing every right inconsistent with it” (emphasis added).

Ms. Marteyn contended that the adopted children, if enforcing their rights in France, should be ordered to compensate Ms Marteyn for her loss of the shares of the French villa of which the deceased could not freely dispose, up to the value of the “legacy” they were to receive under the English Will, i.e. their French tax liability. This amounted to over €2 million.

It was argued on behalf of the English children that the doctrine did not apply because the children did not have a choice: if they gave up their forced heirship rights in favour of Ms Marteyn, then no tax liability would fall on them and therefore they could not be said to have received a “legacy” under the English.

However, the Deputy Judge hearing the case found that the doctrine operates to oblige a beneficiary to compensate, even if no election is possible.

CONSTRUCTION OF THE WILL

Notwithstanding the deputy judge’s comments, he decided the case on the basis of interpretation of the will, applying principles used in the interpretation of contracts.

The judge ruled that after the clause in the will referring to “[taxes] payable... in consequence of [the testator’s] death” should be inserted “by the executors or by any beneficiary under the testator’s wills.”

This was on the basis that, taking into account the terms of the will and the background to the document (as one would in a construction argument) the additional term is implied where “the court is sure that this is what the parties would have provided expressly if they had thought the issue through” The deputy judge was clear that Mr Matthews could not have intended his children to have their French tax liability paid from the English estate, as this liability would only be incurred by the children acting contrary to his wishes, by exercising their rights in France – which he had expressly requested them not to do.

LESSONS TO BE LEARNED FROM THE CASE

While the Bernard Matthews case dealt specifically with two discrete points of law, lessons can also be taken from the facts surrounding the case.

In particular, the case shows that when giving estate planning advice to a client who has foreign assets, it is essential that appropriate advice be sought as to how that jurisdiction will treat those assets on death – even if the client appears to be domiciled in England and Wales.

Where dealing with clients who have assets in civil law jurisdictions such as France or Germany, while it may not be possible to circumvent forced heirship rules altogether (for example, in France, such rules are considered to be public policy) it may be possible to mitigate the effects, for example, it may be possible to compensate reserved heirs out of other assets. Again, specialist advice will be required.

To disregard rules of forced heirship in their entirety is to open oneself up to unintended consequences – particularly if the testator is not married and / or has children from a previous relationship. In particular, those whom a testator may wish to benefit (such as in the Bernard Matthews case) may not benefit nearly to the extent intended.

It is to be noted as well that Regulation (EU) 650/2012 (Brussels IV) will come into force on 17 August 2015, relating to the jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. One of the elements of the regulation is that it will be possible to choose the law applicable to one’s succession. However, the UK has opted out of Brussels IV, although it has retained the option to opt in to the regulation should it choose to do so in the future. Furthermore, reference will need to be made to the regulation in any event, in the context of an English estate with a European element, as this may have a bearing on the law to be applied to a succession of foreign assets, or to the validity of the testamentary disposition.

On a more general note practitioners should take care to think through the consequences of terms they are drafting, and what different (and unintended) interpretations might apply. Any testamentary dispositions in England also need to be seen in the context of any other testamentary dispositions elsewhere in the world (a mistake which has occurred in the past is for an English will to revoke a previously made foreign will in respect of foreign assets).

Untangling matters with a cross-border element can be time-consuming, stressful and expensive after a testator has died.

Obtaining appropriate specialist advice on assets in foreign jurisdictions at the estate planning stage can save much of these costs.

Gareth Ledsham, Senior Associate, Trust & Estates Disputes team, Russell-Cooke LLP. This material does not give a full statement of the law.

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

The Clapham Omnibus 27

EMPLOYMENT LAW UPDATE CHANGES AND CHALLENGES Junior Lawyers Division

Given the numerous changes to employment law practice and procedure in the last few months, this article endeavours to present a whistle-stop tour of the highlights.

6

Wonu Sanda Paralegal Hanne & Co

FEES (FI FO FUM)

You may remember Amy Walker’s article1 in the last issue of the Clapham Omnibus on the introduction of Employment Tribunal fees. Well as of 29 July 2013 they are a reality and the important practical points to note are that:2 1 All claim forms must be submitted either through the new online interface; or by post to the central processing centre in Leicester or Glasgow (for Scotland); or by hand during business hours to a designated Tribunal office. It is no longer possible to submit claims by fax, email or to deliver to the Tribunal out of office hours.

2 The issue fee must be paid or a remission application submitted at the same time as the claim form is lodged, if not the claim will be rejected.

3 Fees can be paid by debit or credit card if the claim form is submitted online, or by cheque or postal order if it is submitted by post or by hand.

Fees cannot be paid in cash.

4 If a remission is sought, this should be indicated on the online form and a hard copy remission application setting out the Claimant’s financial circumstances must be sent to the central processing centre together with original supporting documentation.

5 A fresh remission application will need to be made on each occasion that a fee is due.

28 The Clapham Omnibus

Response forms can be submitted online, by post or by fax within 28 days from the date that the Tribunal sent the copy of the Claimant’s claim form. If the Respondent is counterclaiming or making an application to set aside a default judgement the relevant fees do not have to be paid simultaneously. The Tribunal will notify the Respondent when they need to pay.

However, Tribunal users and staff may not wish to get too familiar with the fee remissions system as more change is on the horizon due to the introduction of the universal credit system in April 2014. The government intends to implement a uniform remission system for most of HMCTS by October 2013, which will be based on household disposable capital and household gross monthly income (in place of the gross annual income and net monthly income tests).3 This approach is likely to reduce the number of Employment Tribunal Claimants that qualify for remission, forcing them to use their savings to pay for fees at a time when they are likely to be unemployed and need to dip into them anyway.

Indeed, if the prospect of a new fee remission regime which is soon to be overhauled isn’t exciting enough, on 29 July 2013 (the day ET Fees were introduced) Unison were granted permission for a Judicial Review of their legality.4 The hearing is listed for October 2013 and Unison will be arguing that the fees are set at a prohibitively high level in contravention of EU laws, which prevent Member States from making it virtually impossible, or excessively difficult to exercise individual rights.

They will also argue that fees are not payable at all in other comparable first-tier Tribunals and thus it would be a breach of the principle of equivalence to require significant fees to be paid to vindicate EU rights where no fees are required to vindicate similar rights. Lastly they will argue that the government did not do a proper equality impact assessment of the public equality duty.

However, the challenge is by no means straightforward, as Unison will need to show that no reasonable government could have introduced fees in this way, which is a high test to meet against the backdrop of other public spending cuts and the availability of the fee remission scheme for those who cannot afford the fees.

29 JULY: OTHER DEVELOPMENTS

These include: 1 A new cap on the unfair dismissal compensatory award at the lesser of one year’s salary or the current limit of £74,200.

2 New nomenclature: ‘compromise agreements’ will now be known as ‘settlement agreements’. Although they remain the same in substance.

3 The birth of ‘confidential termination negotiation’,5 which prevents anything said by an employer in a settlement offer or discussion held before the termination of an employment relationship from being used as evidence in an unfair dismissal claim, unless there has been ‘improper behaviour’.6 Unlike the ‘without prejudice’ rule (which continues to apply) this does not require there to be a pre-existing dispute between the employer and employee.

4 Amendments to Tribunal rules, including7 – i) Removal of the requirement for judges to automatically issue a default judgement when a response is submitted late. Instead a similar (but not identical) procedure to the pre-2008 version has been reinstated, whereby Respondents can make an application for the extension of time in their response. If they fail to do this or their application is rejected then a judge has the discretion to issue a judgement or fix a hearing date. ii) Formalisation of the ‘sift’ procedure, under which a claim or response can be struck out by an Employment judge at the outset of proceedings if it has no reasonable prospect of success. iii) Amalgamation of Case Management Direction hearings and Pre Hearing Reviews into ‘Preliminary Hearings’. iv) A new power to automatically dismiss withdrawn claims. v) A new power to award cost orders against a party to reimburse the other party for Tribunal fees. continued

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The Clapham Omnibus 29

Junior Lawyers Division EMPLOYEE SHAREHOLDERS AND OTHER CHANGES

As of 1 September 2013, a new employment status, known as ‘Employee Shareholder’, exists.

Before coming into force it was ridiculed by many and seemingly embraced by few, with the Business Chambers of Commerce and The Department for Business reporting that, as of 31 August 2013, they had not had any enquires from companies in regards to it.

An employee shareholder will agree to surrender certain employment rights in exchange for between £2,000 to £50,000 of capital gains tax exempt shares in the employer’s company. Those rights include the right to bring a claim for unfair dismissal and the right to receive statutory redundancy pay but does not include automatic unfair dismissal or discrimination. Arguably the scheme is less attractive to women as they will have to give 16 weeks’ notice of early return from maternity (as opposed to eight) as part of the surrendered rights.

Ultimately the cost of: mandatory independent legal advice, payable by the employer on behalf of the employee before entering the agreement; the initial valuing of shares; and the need to adhere to fair dismissal procedures in any event to avoid being accused of a discriminatory dismissal may mean that this new status remains unattractive to employers too.

Lastly the third party harassment provision in the Equality Act 2010 which made employers liable if their employees were harassed by clients or suppliers, for example, has been repealed effective from 1 October 2013.

With all this change, it is an exciting time to be an employment law practitioner albeit one in which a dwindling number of claims, in part due to the effect of Employment Tribunal fees, may mean there is less work out there.

FOOTNOTES 1

Amy Walker, ‘Employment Tribunal Update- Tribunal fees’ (2013) 3 Clapham Omnibus.

2

The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893.

3

Ministry of Justice, Fee remission for the Courts and Tribunals -Consultation Response (TSO September 2013).

4

“UNISON wins right to have a JR hearing over tribunal fees” (UNISON, 29 July 2013).

5

Section 111A of the Employment Rights Act (ERA) 1996.

6

However the confidentiality provisions of s.111A ERA does not apply to automatic unfair dismissal claims or breach of contract claims (even when it is brought together with an unfair dismissal claim).

7

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, SI 2013/1237.

30 The Clapham Omnibus

WHAT YOU GET FROM WORK EXPERIENCE

I am a recent Law graduate from London South Bank University. After finishing my degree in June, I managed to arrange a week’s work experience at Hanne & Co Solicitors in Clapham Junction. They are a high street firm specialising in areas of employment, family, company, conveyancing & criminal law.

There was a rough structure which involved getting me into court as much as possible, not only to see the realities of the court system but also to see the progression of cases through several hearings. Unfortunately this coincided with a heat wave and a County Court air conditioning system in a desperate need of repair. During my time at Hanne & Co, I attended court several times to serve injunctions, though the majority of time was spent waiting for a hearing or judgement. I also clerked in a three day family law case hearing on financial remedies at the County Court and observed the barrister present their client’s case precisely and persuasively (a challenge considering the complexity of the case, the evasiveness of one of the witnesses and the sums involved). This was a welcome experience, though we did have to contend with the 30+ degree heat.

It wasn’t all Kavanagh QC court room drama though. For a case to be presented and argued coherently, the more mundane but equally vital office tasks involved preparation for trial and other procedural and practical tasks. This meant preparing and copying trial bundles, opening newly arrived mail via the DX, photocopying leases, and preparing folders of accounts. While often laborious, it gave me an insight into the administrative work and trial preparation that solicitors firms undertake.

During my time at Hanne & Co, I also sat in on several client interviews. Having previously attended on clients and taken instructions at the London South Bank University Legal Advice Clinic, it was interesting to see the difference in interviewing styles of other lawyers. The majority of interviews I attended where undertaken by the Employment & Commercial solicitor Harry Dronfield. The interviews I sat in on were mostly clients with compromise agreements who wanted to know what options, other than signing the agreement, are available to them. These interviews also took place only a few days before the new changes to the Employment Tribunal regime, including the introduction of Tribunal fees, came into effect, making the process of advising the clients on their options more complicated.

My week at Hanne & Co has certainly been an insight into the inner workings of a high street firm of solicitors. It has shown me the practicalities of working in the legal sector, mostly the considerable amount of patience needed and the large expenditure of effort involved in preparing cases for trial. Thanks to Hanne & Co, I now recognise that the realities of working in the legal industry are often arduous but necessary and, in the end, rewarding.

Tom Hardcastle Law Graduate from London South Bank University

SOUTH LONDON JLD UPDATE

Welcome to all trainees and undergraduates, and all other junior lawyers, who have started working or studying in South London this September.

Our season of events is kick-started by the annual social drinks on 26 September at Borough Bar in London Bridge (photos will be in the next edition of the Clapham Omnibus).

We are hosting a talk by Wesleyan for Lawyers on 28 November at London South Bank University. The talk is aimed at those starting out their legal career and includes tips for financial planning.

Further details will follow.

We are in the process of launching a new website which we shall use to publicise

future events and upload photos from past events. We are also embracing Twitter so please do follow us.

We are always keen to attract new members to the South London JLD, membership is free for junior lawyers (law students, paralegals, trainees and solicitors with less than five years PQE) studying or working in South London.

Please contact us at sllsjuniorlawyers@gmail.com to join or for further information about membership.