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www.cwhls.org.uk A company limited by guarantee. PUBLISHER Ian Fletcher Benham Publishing Limited 3tc House, 16 Crosby Road North, Liverpool L22 0NY Tel: 0151 236 4141 Fax: 0151 236 0440 Email: admin@benhampublishing.com Web: www.benhampublishing.com ADVERTISING AND FEATURES EDITOR Anna Woodhams DESIGN AND PRODUCTION MANAGER Fern Badman ACCOUNTS DIRECTOR Joanne Casey MEDIA NO. 1319 PUBLISHED August 2014 – © Benham Publishing LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Media. 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. The City of Westminster and Holborn Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age, Disability or Sexual Orientation. DISCLAIMER 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 members 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.
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5
Introduction The President’s Column
6 8 8 9 10 10 10 11 11 12 12 13
News & Events Council Member’s Report Will Aid: Making a Positive Difference for 25 Years London Legal Walk Tavern Tour Cooper’s Bistro - Local Hidden Gem Elizabeth Rimmer, New CEO of LawCare Russell-Cooke Develops Residential Conveyancing Service Applications Invited for International Study Funding Wine of the Season Race to St Christopher’s Place to Experience One Great Day John Pickford, SearchFlow’s New MD, Sets Out His Stall New Head of Qualifications Announced
14 14 15
Book Reviews Hershman & McFarlane Children Act Handbook Cloud Computing Law Same Sex Marriage and Civil Partnerships
18
Photographs Lawyers Helping Lawyers - Another Memorable Evening at the Legal Charities Garden Party Legal Charities Garden Party 2014
20
Property A Cautious Confidence
17
22 23 24 26 27 28 30 31 32 33 33 34 34 34
Professional Practice The Nine Characteristics of Successful Business Leaders and Entrepreneurs Confidential Data and Employee Risk Management SRA Consultation on Solicitors PII Don’t Let Your Hot Dog Burn Cosmetic Litigation: The Tip of the Iceberg Your 2014 Professional Indemnity Insurance Renewal DX Launches eDX Property Solutions for Estate Administration Sub-committee Reports Professional Matters Sub-committee Education and Training Sub-committee International Sub-committee Law Reform Sub-committee Land Law and Conveyancing Sub-committee Junior Lawyers’ Division
President:
Hon Secretary:
Hon Treasurer:
Editor:
Administrator:
Susanna Heley susanna.heley@rlb-law.com
020 7227 7463
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020 7395 3122
Bruce Clarke bruce.clarke@lbmw.com
020 7222 5381
Ivan Ho ih@hunters-solicitors.co.uk
020 7412 0050
Susie Hust, 1 The Sanctuary, London SW1P 3JT admin@cwhls.org.uk 020 7960 7115
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“Having our bank manager on board is like having an extra partner.” In my opinion, your bank should be part of your business. For us this doesn’t just stop at the day to day, we refer business to each other and organise joint social events outside work. It’s great to be able to pick up the phone and talk directly to our branch manager. Tim Wright, Finance Director, Penningtons Manches LLP
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Introduction
THE PRESIDENT’S COLUMN
President Susanna Heley
It has been an eventful few months for the profession, particularly in Westminster & Holborn. The Society has been busy on your behalf responding to consultations issued by the SRA in the course of the new regulatory reform programme. The SRA’s
DIARY
proposals in relation to indemnity insurance reform have performed the herculean task of uniting the profession, insurers, lenders and consumer groups in opposition to the proposed changes. Our response to the PII consultation is just one of the issues we’ve
September
been dealing with on behalf of our members.
24
Committee Meeting
On a less serious front, we had lovely weather for the Legal Charities Garden Party and
24
Dinner with Press
the profession turned up in force to support the SBA and other legal charities. CWHLS is recruiting for volunteers to assist with aspects of its work and I urge all members to get involved, whether by attending CWHLS events and lectures or joining
October 22
Committee Meeting
29
CWHLS AGM*
one of our sub-committees. Most are recruiting and there are fascinating opportunities to get involved with shaping the future of the profession in many different ways. We are specifically seeking those interested in assisting CWHLS with its online profile, in maintaining its website and editing the e-Report. We are also looking for nominations
November
for those who would stand as junior vice president for the 2014/2015 year.
19
Committee Meeting
It is great fun to be involved with CWHLS and to work with so many people who volunteer their time for the benefit of the profession in their area. So get in touch – volunteer – who knows where it might lead? For now, I leave you to enjoy the Report. I hope to see as many of you as possible at the events we’re planning in the near future – do look out for details – and at the AGM on 29 October.
*Notice of the AGM will be given by email and posted on the Society’s website http://www.cwhls.org.uk
SUSANNA HELEY
shortly.
PRESIDENT
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News & Events
COUNCIL MEMBER’S REPORT MAY 2014 We heard the result of the Presidential election: Robert Bourns, one of the City of London Council members, will take office as Deputy Vice President at the AGM (and then, according to the Law Society’s constitution, succeed as Vice President and President in 2016). He will make an excellent President; the profession has sound future leadership succession in Jonathan Smithers and Robert Bourns. We then heard about 19 roadshows held across the country to assist practitioners deal with the consequences of the Lord Chancellor’s decision on criminal legal aid, attended by over a thousand people. These roadshows, and the Law Society’s response to the criminal legal aid cuts, have been covered in the Gazette and in the legal trade press.
Peter Adams
The Law Society staff work constantly at shaping the future: the Society has given evidence to three parliamentary committees, including the Crime and Courts Public Bill Committee, and has briefed parliamentarians on the Finance (No 2) Bill, the Immigration Bill, the Deregulation Bill, and the Criminal Justice and Courts Bill. Internally, the Society has set up a team to look at strategic issues affecting the profession and the legal system, and its first project will look at the relationship between the UK and the EU and its implications for legal policy and providers of legal services. The Law Society has also prepared a response to consultations on the future of the Land Registry, and discussions are under way at Ministerial level over concerns about what appears to be a policy by UKBA of trying to bypass solicitors when dealing with migrants. One of the regular features for May is a review of the annual report from the Equality and Diversity Committee, now renamed the Equality, Diversity and Inclusion Committee, an issue of professional leadership the Council takes very seriously. Among issues addressed in the report were the ongoing success of the Diversity and Inclusion Charter which now has 431 signatories which between them represent over one third of solicitors in private practice. The regular range of Firms Diversity Forums has continued across England and Wales, BME / Judicial appointments outreach events were run jointly by the Law Society, the Bar Council and CILEx. The Law Society worked with Riliance to develop a free online tool to help firms with collecting the diversity data annually required by the SRA. Council agreed that priorities for next year would include: further activity to enhance the diversity of the volunteer community; and embedding an HR diversity programme within the organisation, including a series of diversity and inclusion workshops targeted at manager, staff, and board and committee chairs; and a continued focus on promoting and implementing the Diversity and Inclusion Charter, Procurement Protocol, and Career Barriers Action Plan externally. Des Hudson has done sterling work in his years of leadership of the Society and will be a difficult act to follow. It is essential that we recruit a quality successor: Council discussed and signed off Management Board’s proposals for the recruitment of Des Hudson’s successor as chief executive, a process which will begin with advertising from the 25 May 2014. Council also had a preliminary discussion of issues in relation to the Compensation Fund, the operation of which the SRA is reviewing and on which there is likely to be a consultation later in the year. The discussion covered issues including the effect of ABS on the Fund, the recommendation of the Legal Services Board’s Consumer Panel that there should be a single fund covering all of the regulated legal professions, and the effect of the conveyancing process of claims on the fund. Further consultation with the profession is planned over the next few months. Finally a new committee was formed to recognise the importance of the work of the Intellectual Property Working Party.
PETER ADAMS
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News & Events
WILL AID: MAKING A POSITIVE DIFFERENCE FOR 25 YEARS In November 2013, 1,500 generous solicitors all over the UK helped raise more than £2.1m in client donations for Will Aid’s 25th anniversary campaign by dedicating their professional time and skills to write wills for approximately 24,000 clients. Almost 8,000 of these wills have to date been registered for free with Certainty, generating potential follow-up business and ensuring that the will can be found by relatives when it is needed. In England and Wales alone, 1,100 firms signed up to the scheme and raised a fantastic £1.72m by writing wills for 20,000 clients. Although the number of wills written varies from firm to firm, many solicitors drew up between 80 and 150 wills. For instance, hard-working and generous solicitors at Clifton Ingram in Reading and Wokingham achieved a fabulous fundraising total of £11,936 by writing more than 100 Wills. The firm has participated in six Will Aid campaigns to date and has written approximately 1,000 wills for people locally. In total, they have raised a fabulous grand total of over £42,000. On behalf of the team who put in so much effort to Will Aid, Ms Melissa Baxter commented: “Will Aid offers us an excellent opportunity to use our professional skills to generate significant charitable donations and engage with individuals who would not otherwise have come through the door. Will Aid clients receive the same professional service as our fee-paying
clients and are pleased with the level of attention and service given.” The charities, ActionAid, Age UK, British Red Cross, Christian Aid, NSPCC, Save
the Children, Sightsavers, SCIAF (Scotland) and Trocaire (NI) will put the funds raised to good use working to improve the lives of people who need
LONDON LEGAL WALK 19 MAY 2014
Once again, it was literally a stroll in the park. Some of us decided that it doesn’t have to be a race – all that counts is completing the ten kilometre Walk by the prescribed route – so we set off early, in order to take it easy but still arrive back more or less with everyone else. Armed with the map provided, and encouraged by the groups of students and bunches of yellow balloons placed at salient points, we started from the Law
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Courts down Middle Temple Lane and along the Embankment until a right turn brought us across Whitehall and Horseguards Parade, and into St. James’s Park. Crossing into Green Park by Buckingham Palace, we saw a flagbearing limousine emerging from the Palace gates, much to the excitement of the tourists. Guided across Hyde Park Corner by more students shouting encouragement, we plunged into Hyde Park. After stopping to admire the lovely
Rose Garden, we went on and deferred our rest break until we had crossed the Serpentine Bridge and started back down the northern side of the water. Groups of eager walkers had started to overtake us, and we relaxed on a bench and watched them pound past. The names on their tshirts read like an extract from a list of top London firms and chambers, and there were also many groups from other legal bodies and from not-for-profit organisations.
News & Events
TAVERN TOUR 26 JUNE 2014
help most in the UK and all over the world. For example, donations from Will Aid 2014 will go towards the NSPCC ‘Now I Know’ appeal, which aims to raise £20 million by 2016 for the ChildLine Schools Service. This will put ChildLine in every primary school across the UK, with visits once every two years to talk to children about abuse, how to protect themselves and where to get help if they need it. By helping children understand and identify abuse in an age appropriate way, they will have more courage to speak out earlier and protect themselves and others from the devastating effects of abuse. Shirley Marsland, Will Aid Campaign Manager, says: “Will Aid has made such a real and positive difference to those in need of a hand up over the past 25 years. This would not have been achieved without the generous help of our enthusiastic solicitors and the clients they have helped to make a Will. The Will Aid scheme will run again in November 2014 and, as usual, we welcome any solicitors who would like to take part and show their immediate and the wider community that they care”. For more information about how to take part, please visit: www.willaid.org.uk/solicitors or phone 0300 0300 013.
The route back was across Hyde Park Corner again – a seething mass of walkers coming and going – through Green Park and along the Mall, which looked fresh and green and imposing, and then as usual up (down?) the Strand. That part of the Walk always seems uphill, but after that it was easy going round Aldwych and past the Law Courts to the Law Society and a crowd of happy walkers. ROSEMARY LESTER
I was delighted to be able to attend the Tavern Tour on 26th June . It was a welcome relief from the group games of the World Cup! Our tour guide was John Edwards and we met in front of the RCJ on the Strand. We were a small group with a few no-shows, and we were given a brief introduction to the era of Dr Johnson, and historical facts about the building of the 6 acre site for the Royal Courts, how many houses were demolished to make way for it (450) etc. We were also given some history regarding the Temple Bar, being one of the ancient gates to the city of London and shown pictures of how it used to look. We started with our first tavern, the elegant tavern called The George on the Strand. Interestingly despite looking Tudor, it turns out that the building was “re-faced” in Victorian times and is in fact a much newer building, although the tavern itself can date itself back to a 17th century. This was the only establishment we visited that had modern entertainment such as TVs all showing the football… The beers were very pleasant, and after our drinks we meandered through the alleyways of Middle Temple – walking past Middle Temple Hall. Personally, it was difficult to look at that elegant building without thinking of our annual dinner when I had the privilege of being your president and the other annual dinners we had held there. Our guide had never been inside, but knew of the ceiling and roof structure! We continued through to Inner Temple, pausing for a moment by Temple Church, otherwise known as the Church of The Poor Fellow-Soldiers of Christ – the Knights Templar, with its distinctive round “end”. It was heavily damaged during the Second World War but has been largely restored. The round Church was designed to recall the holiest place in the Crusaders’ world: the circular Church of the Holy Sepulchre in Jerusalem. After a short walk up Chancery Lane, we found ourselves behind the RCJ and in Carey Street, and had the opportunity to stop in the Seven Stars. Just on the “right” side of the road, it escaped the
demolition necessary to build the courts. Apparently the food is excellent, but the tavern is a very small cosy affair. We saw no sign of the landlady’s famous cat, or should I say infamous? But plenty of photos and memorabilia of past cats! Interestingly the tavern did not, until very recently, have its own indoor toilets, and patrons had to avail themselves of the public facilities situated in Star Yard! We diligently made our way through Star Yard, and eventually found ourselves in Fetter Lane behind the old Public Record Office, now a library for Kings College. We walked past Dr Johnson’s house, now a museum on our way to arguably the oldest pub in London, Ye Olde Cheshire Cheese on Fleet Street. Rebuilt after the Great Fire of London in 1666, there has been a tavern/pub on the site since 1538! Interestingly inside there are a number of converted cellars and it has plenty of character as one would expect. Unfortunately on our way to our final tavern our luck with the weather ran out and the heavens threatened to open. So we sought some refuge in more sheltered alleyways, walking through St Bride’s passage, past, Sir Christopher Wren’s masterpiece, St Bride’s Church, also know as the wedding cake church, or the Cathedral of Fleet Street. Our walk to the Black Friar, Blackfriars (our last tavern) took us past the site of Bridewell Palace, home of Henry VIII and Catherine of Aragon. Inside the tavern, which was originally built in 1875, the insides were remodelled in 1901 and decorated by Henry Poole. There are fascinating sculptures on all the walls – it really is quite extraordinary. It is an “arts and crafts” pub designed to be looked at not just a drinking establishment. The whole tour was most interesting, and I can’t wait to do one of the other tours: hint hint!
CHARLES FRASER
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News & Events
COOPER’S BISTRO - LOCAL HIDDEN GEM beurre blanc for the main course, followed by lemon cheesecake and kumquat confit for dessert: all for under £15. In the evenings, there’s a comprehensive a la carte menu, which changes daily depending on availability at the market: not only is it a perfect choice for theatregoers, it’s also ideal for a post-work meal with colleagues or friends.
Coopers Restaurant & Bar has established itself as a gem within the relative tranquillity of the Inns of Court. Given its location on the south west corner of Lincoln’s Inn Fields – London’s largest public square – its loyal client base hails mainly from the medical and legal professions, as well as from academia. Customers frequent Coopers on a more-than-regular basis for the consummate service and great food.
Aside from the great food and stylish ambience, Coopers is perhaps best known for its staff. Dee Sollis – and her business associate for the last thirty-four years, Paul Cooper – have been in the business of “restauranting” since the heady days of the Seventies. As maitre d’, Dee is always on hand to offer her wide knowledge of wines to both connoisseur and layman.
The two- and three-course Express Lunch menu – served in the downstairs bistro – is extremely popular with local business clientele. Diners can expect the likes of carrot, cardamom and orange soup for starters, smoked haddock fish cake served with a spicy leek fondu and citrus
ELIZABETH RIMMER, NEW CEO OF LAWCARE From 1st September 2014, Elizabeth Rimmer, will be taking up the role of CEO of LawCare, following the retirement of Hilary Tilby after 13 years with the charity. Elizabeth has been managing and developing small charities in the mental health sector for some years. She joins LawCare from the Institute of Group Analysis, a membership and training organisation for group psychotherapists, where she has been the Executive Director for just over four years. Prior to that she was the Executive Director of Alzheimer’s Disease International (a worldwide federation of Alzheimer Associations) for ten years. Elizabeth started her working life as a solicitor, specialising in clinical negligence. Elizabeth comments: “I am delighted to be joining LawCare and having the opportunity to build on the work that Hilary has led in providing support to legal professionals experiencing mental and physical health difficulties throughout England and Wales, Scotland, Ireland, Northern Ireland and the Isle of Man. Although there is greater awareness about the importance of mental health, there is still a significant stigma which can prevent people from accepting that they may have a problem and seeking help. Challenging stigma is a key priority. I am looking forward to working with supporters, partners, funders, Board and staff to raise the profile of LawCare and the vital work it does and to expand its reach amongst the legal professions.”
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Such is the rapport with guests that one client who has frequented Coopers for a number of years has invited Dee to Paris to celebrate his 100 birthday – even though he’s only 93! Dee and Paul have recently welcomed J Corey Evans to the management team. As the former frontman for a hell-bent-forleather rock ‘n’ roll band based in San Francisco, he’s been described as “a veritable powder keg of charisma”. Having over two decades in the service industry under his belt, this master of customer satisfaction brings his unique and refined American style to the institution that is Coopers.
RUSSELL-COOKE DEVELOPS RESIDENTIAL CONVEYANCING SERVICE Russell-Cooke is developing its residential conveyancing service in Kingston which will serve the town and surrounding communities of Surrey. Rachel Stewart, who joined the firm in 2004, is leading on building the residential conveyancing practice to add to the wide range of services already on offer from the Kingston office. Nigel Coates, head of residential conveyancing at RussellCooke, said: “We have for a number of years been serving the Kingston market from our Putney office. A local presence gives our clients a dedicated resource who understands the market in depth”. Rachel is a highly experienced associate solicitor in the conveyancing team. She advises on all aspects of residential property law and specialises in acting for clients with high net worth properties in all locations but in particular in the Surrey landed estates such as Fairmile, Claremont, Crown Estates and St Georges Hill among others. Rachel added: “Following current market trends, we have seen an increase in residential conveyancing business. As such, we felt it essential to strengthen our local offering enabling us to continue to provide a client focused and bespoke service.” For further information please contact Rachel Stewart – Rachel.Stewart@russell-cooke.co.uk / +44(0)20 8394 6532
News & Events
APPLICATIONS INVITED FOR INTERNATIONAL STUDY FUNDING
WINE OF THE SEASON WITH CONAL GREGORY, MASTER OF WINE Northern Portugal provides some of the top value wines in the world, many of which are ideal for informal summer drinking. The steeply terraced hillsides of the Douro valley is the source of rich reds that certainly compete with Claret.
Qualified and trainee lawyers are being invited to apply for substantial funding to support them through their international study. The HM Hubbard Trust is inviting applications from lawyers who wish to study the law of Canada, Spain or France in those countries. The Trust provides Scholarships of up to £27,000 for a year’s Masters level course. The Trust was established by the will of the London based solicitor, Henry Malcolm Hubbard, who had substantial business interests in Canada, Spain and Latin America. It is believed that he worked in Barcelona and was instrumental in bringing electricity to that part of Spain. Those who have been supported by the Trust include Rachel Roche. Commenting on the support the Trust provided she said: “The HM Hubbard Law Scholarship has, without a doubt, been a turning point in my career. Not only did the financial assistance enable me to embark on a programme that would have been otherwise out of my reach, it has given me the confidence to pursue my career in a way that I had not previously thought possible.” Since completing her studies Rachel has set up her own firm, Roche Legal, using many of the skills and contacts that she acquired whilst studying abroad.
Quinta Vale Dona Maria is such a star. Foot treading is still used to make this wine, which could have been turned into Port if brandy had been added. Vines like Amarela, Tinta Roriz and Touriga Nacional create a violet-red wine with dark cherry and plums with great balance. Enjoy now (preferably opened two hours) or keep for five years. £29.90 for 2010 (Tanners).
Rachel commented further: “Studying abroad has changed my perception of many things, and helped me to grow both academically and personally. I would encourage anyone who thinks that they would benefit from this opportunity to apply. I learnt a huge amount of law on my chosen Master’s programme of course, but also learnt a lot about myself. It has certainly opened my eyes to what is possible if you grab opportunities when they arise.” Further information on the Trust and the application process can be found at the Trust web site: www.hubbardlawscholarship.com. Application forms are also available from the site. The application closing date is 30th November with short-listed applicants being asked to meet with the Trustees in midDecember. More information on the Trust can be found at www.hubbardlawscholarship.com
Moss Wood Semillon from Western Australia’s Margaret River has glorious citrus and fig aromas with a mineral elegance to match both monkfish and shellfish. This grape deserves to be enjoyed on its own rather than lost in blends. £16.99 (Waitrose). SPONSORED BY NFU MUTUAL BESPOKE, HIGH-VALUE HOME INSURANCE TAILORED TO PROTECT ART, ANTIQUES, FINE WINE AND MORE.
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News & Events
RACE TO ST CHRISTOPHER’S PLACE TO EXPERIENCE ONE GREAT DAY kindly donated by Fitness First on Baker Street. Situated at the heart of the West End, St Christopher’s Place can be found between Selfridges and Bond Street station. Participants and spectators enjoyed an eclectic mix of boutique shopping, international cuisine, coffee shops, bars and pubs. One Great Day offered the public a unique opportunity to engage with the local community in bustling central London whilst raising money for Great Ormond Street Hospital, which treats children from across the UK with some of the rarest, most complex and often life threatening conditions.
St Christopher’s Place played host to the inaugural ‘One Great Day’: a community charity event held to raise money for Great Ormond Street Hospital. On Thursday 5th June, the all-day event (8am-8pm) saw local business workers, residents, shoppers and visitors to
Christopher’s Place pedalling to the virtual finish line in a cycle race as part of One Great Day’s major fund raising activity. Teams of three were required to ride two miles – the distance between Great Ormond Street Hospital and St Christopher’s Place – on static bikes,
JOHN PICKFORD, SEARCHFLOW’S NEW MD, SETS OUT HIS STALL forefront of business. Pickford is planning an ambitious two year programme of market growth that will see SearchFlow redefine its service proposition and develop a bespoke suite of solutions for conveyancers in England and Wales. Joining from Thames Water, where he headed up a number of businesses including Property Searches, Pickford states that this is an exciting time for SearchFlow as it continues to lead the way in innovative services to help make lawyers’ lives easier.
John Pickford, SearchFlow’s new Managing Director, has committed the leading conveyancing search provider to a renewed focus on ensuring that the interests of conveyancers remain at the
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Pickford comments: “SearchFlow has a well established reputation as a market innovator, never compromising quality but ensuring that customers benefit from all conveyancing search services that they need in a single portal. Our commitment to delivering the highest level of customer service within the legal sector has helped
us achieve and maintain an unrivalled Net Promoter Score of 46. Despite this excellent customer satisfaction rating, we recognise that as legal firms increasingly seek to find efficiencies and streamline their internal conveyancing processes, the challenge for our business is to take to market a suite of modular solutions that allow our customers to pick and choose the right solution to suit their own business requirements.” “We have incorporated into every part of our business our four performance standards that our customers told us were critical: speed, flexibility, expertise and convenience. From our account management teams, to our service teams, to our technical and product development teams, we are focussed on ensuring that these standards are met. It’s quite simply about making lawyers’
News & Events
NEW HEAD OF QUALIFICATIONS ANNOUNCED Margaret Newman, General Manager of St Christopher’s Place, commented: “We were absolutely delighted to be a part of One Great Day. Hosting an event like this gave us the chance to give something back to support the wonderful work of the Great Ormond Street Hospital Children’s Charity.” “One Great Day was about community engagement, having fun and raising money for a great cause but it was also a fantastic opportunity for Londoners in the area to get together and enjoy some fun out of the office in one of London’s prime destinations.”
The Chartered Institute of Legal Executives (CILEx) will welcome Vicky Purtill as its new head of qualifications on 1 August. Vicky joins CILEx from the regulator, ILEX Professional Standards (IPS), where she was the practitioner authorisation and supervision manager. Speaking about her new role, Vicky said: “The CILEx qualifications are well established and respected in the legal profession and I am very much looking forward to working with the qualifications team on the opportunities that my new role will bring.” Vicky worked at IPS for three years and during this time was responsible for a number of education policy initiatives including the research, development and implementation of the new CPD scheme for CILEx members. Other projects Vicky has contributed to whilst at IPS include changing the qualification process for CILEx Fellowship to introduce work based learning as part of the assessment; working as part of the
Joint Advocacy Group with the Solicitors Regulation Authority and the Bar Standards Board to develop the Quality Assurance Scheme for Advocates (QASA); and involvement in the Legal Education and Training Review (LETR). Previously Vicky has worked as a lecturer at a number of higher and further education institutions, including the Open University. Specialising in criminal and public law, she has also taught the CILEx level 6 qualifications and worked as a module leader. Vicky has an LL.M in Public Law from University College London. Alison Hollyer will transfer from the head of qualifications role to take up a new qualifications account manager position at CILEx. Alison will be responsible for the development of relationships with City & Guilds, the management of the paralegal programmes and supporting new and existing centres on the CILEx professional and apprenticeship qualifications.
lives easier. The heritage of SearchFlow combined with technical regeneration, are a pretty compelling combination from which our customers will reap benefits in coming months and years.” “The winners in the conveyancing market are those who are looking for new ways to engage with their clients by integrating their processes with suppliers and partners. This means reducing administration without compromising the quality of service or delivery. It’s about taking a more commercial view and ensuring firms have all the tools available to deliver a fast, flexible, expert service simplifying the transaction process for clients. I’m looking forward to making sure SearchFlow is a key part of that process for the conveyancers we work with every day.”
Vicky Purtill
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Book Reviews
HERSHMAN & MCFARLANE CHILDREN ACT HANDBOOK 2014/15
CLOUD COMPUTING LAW
By The Hon Mr Justice McFarlane QC
Edited by Christopher Millard
ISBN: 978 1 84661 983 0
Family Law/Jordan Publishing Limited
www.jordanpublishing.co.uk
THE MOST UP TO DATE PORTABLE REFERENCE TO THE CHILDREN ACT An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
Published by Family Law, an imprint of Jordan Publishing Limited, this is a convenient single volume work of reference to key children proceedings legislation and related guidance. The book is the answer to the practitioner’s prayer for a convenient portable reference containing the relevant and completely up to date legislation accompanied by expert commentary. This succinct format places at your fingertips the consolidated and fully amended texts of the Children Act 1989 and the relevant provisions of the Family Procedure Rules 2010, together with supporting practice directions. Purpose-designed for portability and convenience, this is the book you need for court if you are in any way professionally involved in children and family matters and either an advisor or a professional. In most cases, it will
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certainly save you time trawling though those multi-volume loose-leaf reference works, which are rather cumbersome to haul around court. Also, if you are adjusting to the changes wrought by the new and changing Family Court structure which was implemented in the first part of 2014, you will find the book especially valuable. The book is divided into three parts which indicate the scope of its contents. Parts I and II present statutes and statutory instruments. Part III, ‘Practice Guidance’ is, we think, of particular benefit to the everyday work of the practitioner and advisor. What the book does not contain, naturally, are the case law authorities, which of course will be researched separately as appropriate. If you are embarking on a career in family law or are coming back to it afresh, this book will certainly refresh and enhance your understanding of the complexities of this difficult field.
ISBN: 978 0 19967 168 7 OXFORD UNIVERSITY PRESS www.oup.com
AN AUTHORITATIVE NEW WORK ON CLOUD COMPUTING AS A NEW SPECIALIST AREA OF LEGAL PRACTICE An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Having started out as a ‘computer lawyer’ in the 1980s, Professor Christopher Millard, who edits this important book on this very contemporary subject, refers to the legal and regulatory changes that have emerged in response to the advent of cloud computing. ‘Cloud Computing Law’, he says, ‘is worthy of attention as a specialist area of legal research, teaching and practice.’
A welcome consolidation of current legislation and practice guidance on children matters, a great benefit offered is that the book will be updated each year and issued as part of the subscription package to all subscribers to ‘Children Law and Practice’. But you don’t have to subscribe. You can order it as a nonsubscriber, which no doubt many will do and note too, that it is available as an eBook on Jordan’s website. Judges and social workers in this field as well as practitioners will find this title indispensable, especially in this brand new annual edition.
This book synthesizes the numerous and detailed results of the subsequent Cloud Legal Project launched in 2009 which has in turn led to further research as new developments and issues have emerged in cloud computing technology.
The publication date is cited as at June 2014.
Newly released by the Oxford University Press, the book examines, (in Millard’s
Heading a team of seven expert contributors, Millard had brought at least three decades of experience and research to the compilation of this book. To cite only one example out of his dizzying list of credentials, he was asked by Microsoft in 2008 to lead a research project – together with colleagues – to assess the legal and regulatory implications of cloud computing.
Book Reviews
SAME SEX MARRIAGE AND CIVIL PARTNERSHIPS THE NEW LAW
words) ‘various key legal constructs and rules which apply to cloud computing, both in theory and practice’ – with the additional objective of furthering the debate on how the governance of cloud computing may be improved.
By Mark Harper, S Chelvan, Martin Downs, Katherine Landells and Gerald Wilson
Part I of the book explains what cloud computing actually is: in other words, it is a means by which computer services are delivered over a network (rather than housed in the hard drive of your own computer). As such, ‘the cloud may prove to be as disrupting an innovation as was the emergence of cheap electricity over a hundred years ago’; electricity also being a utility delivered through a network.
FAMILY LAW/JORDANS PUBLISHING LIMITED
Part II deals with contractual issues (which must inevitably arise). Part III examines the protection of personal data in the clouds. Part IV, in addressing the issues of cloud regulation and governance, focuses on such matters as law enforcement, consumer protection and competition between cloud service providers and ends with an assessment of ways and means of developing effective cloud governance frameworks. It seems that Millard and his team have tackled every aspect of this emerging area of law. Their plain English approach to what can be an abstruse subject will certainly be of benefit to both practitioners and scholars wishing to delve into the legal ramifications of cloud computing. This is a carefully researched and extensively footnoted book and is very much one for our times. It will provide career-enhancing information as well as useful and indeed entertaining reading for lawyers and non-lawyers alike as further cloud development takes place.
ISBN: 978 1 84661 859 8
www.familylaw.co.uk Available as an eBook at www.familylaw.co.uk/ebooks
AUTHORITATIVE COMMENTARY AND AN EXAMINATION OF THE LAW ON SAME SEX MARRIAGE AND CIVIL PARTNERSHIPS An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Nine years after the Civil Partnership Act 2004 (CPA), the Marriage (Same Sex Couples) Act 2013 (MSSCA) came into force in March 2014, only four months ago as we write this review. How commendable then – and certainly useful for the legal profession – that, as part of their New Law series, Jordan Publishing Limited has produced this scholarly, detailed and readable book on these two major pieces of legislation, the latter of which can be considered brand new. As the five authors explain, the book draws where appropriate, on statute and case law and in particular, the relevant European Convention on Human Rights jurisprudence. The position of cohabitees is also examined, in other words, those living together, but not within either a civil partnership or marriage. Whatever their orientation, their legal position has remained untouched by the reforms. Confining itself to an explanation of the
two pieces of legislation as they concern England and Wales, the book’s main objective is to explain both new laws, referring where appropriate to statute and case law, as well as the impact of the European Convention on Human Rights. Of abiding interest and concern of course, is the MSSCA 2013. The authors have therefore endeavoured to provide perspective and guidance as to its likely meaning, in anticipation of consequent problems and difficulties. Very helpfully, at note 5.50, the book presents a table provided by the Department of Culture Media and Sport, which sets out the similarities and differences between civil partnerships and same sex marriage. Within its more than 600 pages the book examines the legislation over eleven chapters. Particularly interesting is the introduction which discusses the progress, or lack of it, toward enacting similar legislation in a number of other countries. The common thread here is controversy: sometimes leading to acceptance, sometimes not. The subject matter of the book ranges from the context of LGBT Law Reform through to such matters as registration, the financial consequences of termination, immigration and asylum and incapacity and death. Issues of rights and responsibilities are also covered. There is much to admire in this volume including its research resources. In addition to the tables of cases, statutes and statutory instruments, the text of the MSSCA is published in its entirety in the appendix which also includes relevant extracts of the CPA. The book is aimed at, and will be immensely helpful to, a range of specialist lawyers, including family lawyers, housing, immigration and asylum lawyers and chancery lawyers handling or advising on inheritance claims. The publication date is cited as at May 2014.
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“LAWYERS HELPING LAWYERS” ANOTHER MEMORABLE EVENING AT THE LEGAL CHARITIES GARDEN PARTY 11TH JUNE 2014 THE NORTH LAWN OF LINCOLN’S INN
few years ago. Here are some facts which we at Lincoln’s Inn are very proud of! We think the Old Hall is the finest building in the Inn and, indeed, is one of the finest buildings in London. It is small but beautifully proportioned and executed but fortunately we didn’t need the Halls this year as the weather stayed fine. For visitors to the Old Hall, you can see a tablet on the outside of the north wall which records that the hall was built “in the fifth year of King Henry VII”. Henry VII came to the throne in 1485, so the hall is a building that was erected before Christopher Columbus set sail for the New World and it replaced a previous hall that had fallen into decay so there is much history here.
Another very successful legal charities garden party took place this June at Lincoln’s Inn for its 46th summer. It is surprising to realize that it all began in 1968 when we still had the Assizes and Quarter Sessions and the world was altogether a rather different place. History and tradition still maintain a tremendous presence at the four Inns of Court, and rightly so. Under the auspices of the City of Westminster & Holborn Law Society who were again very well represented at the event, just about everyone who’s anyone in legal London was there, including judges, barristers and solicitors to admin staff and legal executives and their friends. This year’s party was not spoilt by rain although some ominous clouds refused to move throughout the evening as the photographs show. We enjoyed the music which, as always, is a tremendous lift to the occasion, and we were delighted to welcome both a steel band on the Caribbean theme and the more traditional jazz band which played most of the usual favourites!
LINCOLN’S INN For those who are not familiar with Lincoln’s Inn, which has the largest hall of the four Inns of Court, here are some interesting points – the exact origins of Lincoln’s Inn, and indeed of the other three Inns of Court, are not fully known! The extant records of Lincoln’s Inn open in 1422, the earliest of any of the Inns of Court; but a society of lawyers by that name was then already in existence. What is also of interest is that it’s likely that the Inn evolved during the late part of the fourteenth century. And in contrast to many of the colleges of Oxford or Cambridge, which it resembles, there was no conscious founding or dated charter but the Inn still has very much the same feel as the Oxbridge colleges and is a very pleasant environment to work in and you just do not hear the noise and bustle of the streets outside.
THE OLD HALL So there we are – that is the Inn! The Old Hall, down on the left hand side from North Lawn is an ancient building and very atmospheric to dine in after its refurbishment a
Of course, the other Inns also had ancient halls, but the oldest (Gray’s Inn Hall, sadly destroyed in the war of 193945, and since rebuilt) was completed some 70 years later. In what is now called the Old Hall, benchers, barristers and students of the Inn were eating, drinking, debating and holding their revels 130 years before the Mayflower left Plymouth on its historic voyage so it is a most convivial place for a function with the Legal Charities Garden Party continuing the tradition. And there is a large amount of history to Lincoln’s Inn which it is suspected many members know little of!
THIS YEAR’S CHARITIES The charities supported this year were: SBA The Solicitors’ Charity; Barristers’ Benevolent Association; CILEx Benevolent Fund; Institute of Barristers’ Clerks Benevolent Fund; United Law Clerks’ Society; and LawCare. And the patrons for the event are: Lord Neuberger of Abbotsbury, President of the Supreme Court; Lord Saville of Newdigate, former Justice of the Supreme Court; and Lord Justice Mummery, Judge of the Court of Appeal. The media sponsor is the Law Society Gazette, supported by Old Square Chambers, Hunters, 14 Gray’s Inn Square, McLoughlin & Company Solicitors and Tanfield Chambers who were all very well supported this year as our array of photographs show. A great time was had by all this summer, and the City of Westminster & Holborn Law Society hope to see you again next year!
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Photographs
THE LEGAL CHARITIES
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Photographs
GARDEN PARTY 2014
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Property
A CAUTIOUS CONFIDENCE –
STRONG FUTURE GROWTH PREDICTED IN SEARCHFLOW’S CONVEYANCER SENTIMENT SURVEY Earlier this summer, we unveiled findings from our second Conveyancer Sentiment Survey run in conjunction with the Law Society Gazette. As the UK’s leading information and data provider for the property transaction market, it’s our aim to make lawyers’ lives easier. Staying close to conveyancers and responding to the challenges and opportunities they face every day is part of this.
requirement for the conveyancing sector to educate homebuyers around flooding risk. Sixty-five per cent of conveyancers stated that the floods have changed their view of flood risk when undertaking searches, however this isn’t reflected in consumer attitudes. Fifty-five per cent of conveyancers see no change in their clients’ attitude to risk with 37% seeing somewhat of a shift.
Through our survey, we know that confidence has returned to the marketplace with more than half (59%) of conveyancers expecting their business to continue to grow by 10% or more over the year. Within this figure, a quarter of conveyancers (25%) are anticipating growth to exceed 21%. This is despite recent predictions from Nationwide warning against the housing market particularly in London - facing a “natural correction” and the Bank of England citing the property market as representing the biggest risk to financial stability and long-term recovery. The challenge for conveyancers will therefore be to maintain competitive edge and ensure growth is sustainable, particularly as the market feels the impact of the Mortgage Market Review.
Overall our view remains that while this market confidence is encouraging, we need to stay mindful of the strong forces at play. Although 73% of conveyancers state Help to Buy has had no positive impact on their businesses, the media noise around the initiative may have indirectly encouraged a release of pent up demand that has been building for some years now.
Our Conveyancer Sentiment Survey showed that 2014 has proved overwhelmingly positive for the conveyancers surveyed. Three-quarters (75%) saw their volume of work increase by 10% or more in the first quarter of 2014 alone, with 41% of this figure seeing volumes grow by more than 25%. This is an increase of 10% on the previous quarter, where 65% of those surveyed experienced similar growth. Elsewhere SearchFlow’s research shows that conveyancers believe Help to Buy has had a negligible impact on market growth; 73% of conveyancers believe it has made no difference with just over a quarter (28%) saying it has contributed “somewhat”. Once again it is direct business that is fuelling growth with nearly three quarters (72%) of conveyancers seeing the highest growth here. But are we truly out of the woods when it comes to economic recovery? Our findings revealed that conveyancers aren’t getting ahead of themselves just yet with a real degree of caution reflected in recruitment intentions, certainly in the short-term. While over half (52%) of conveyancers are looking at increasing their headcount in the next quarter, 27% said it would be unlikely with one-fifth (21%) saying team growth is “very unlikely”. As we move away from the flooding crisis earlier this year, SearchFlow’s Conveyancer Sentiment Survey highlights key learnings within the sector, with a real
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The recent very strong house price inflation is a reminder to us all that, as an industry, it is a priority to address the fundamental issue of a lack of housing supply. The Home Builders Federation now estimates that the UK is one million homes short of adequately housing the population. This means that to create a sustainable market the shortage needs to be addressed. It’s not just about new houses but a more far-reaching, strategic approach. Ultimately this requires investment in a major infrastructure development to support the needs that new homes bring, within the community and the wider economy. It is this that will support the more sustainable market to operate within. SearchFlow’s Conveyancer Sentiment Survey surveyed 71 conveyancers across England and Wales in April - May 2014.
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Professional Practice
THE NINE CHARACTERISTICS OF SUCCESSFUL BUSINESS LEADERS AND ENTREPRENEURS SELF-ESTEEM Is about confidence in your own ability or self-worth and having the belief you can achieve great things in life.
THE NEED TO ACHIEVE Having the ability to outthink the competition – it’s not always about the short sprint to the finish, with flashes of brilliance. It’s a test of endurance. Focus on your goals, be inspired, and be prepared to take the odd risk. Always be open to feedback. Seek to be unique!
SCREENING FOR OPPORTUNITY It helps to form a bigger picture enabling you to obtain a realistic view of the strengths, weaknesses and any potential threats of a business idea. This may trigger creative ‘thinking out of the box’ ideas as well as provide key insights on how a new venture may be enhanced to realise its full potential.
LOCUS OF CONTROL When you are confronted with a challenge, do you feel that you have control over the outcome, or do you believe that you are simply at the mercy of external forces? Alan ran a workshop at a recent GGI conference in Scotland where extracts from the above presentation formed one of the key discussions.
I imagine that at some point this year you may have taken a step back to reflect on the stage in your career that you currently find yourself. This, of course, will be different to each and every individual as we will all naturally have very personal aspirations and goals. Many of you may have been in business for some time and are therefore looking for the next career move, whilst others may be at the pinnacle of their career and in the process of identifying a successor to take over their business, and some of you might be new in the organisation and looking ahead to establish long-term goals. The good news is that many of these leadership characteristics are learnable. The 9 characteristics that I believe are the key drivers in being successful: 1 Self-esteem 2 The need or an overwhelming desire to achieve 3 Screening for opportunity 4 Locus of control 5 Goal orientation 6 Continued optimism 7 Courage to see it through to the end 8 Tolerance to ambiguity 9 Strong Internal Motivation
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If you believe that you have control over what happens, then you have what is referred to as an “internal locus of control”. If you believe that you have no control over what happens, and that external forces or environmental factors are to blame, then you have what is known as an “external locus of control”.
GOAL ORIENTATION Goal orientation has a number of meanings depending on how it is applied. It is generally defined as “demonstrating one’s abilities through their achievements in performance appraisal”. It can help forge stronger working relationships, better communication and open dialogue between colleagues, as well as nurture trust and respect between people.
OPTIMISM Winston Churchill famously once said: “A pessimist sees the difficulty in every opportunity; an optimist sees the opportunity in every difficulty.” Being optimistic ultimately means that you expect the best possible outcome from any given situation.
COURAGE Courage is the ability, and willingness, to confront fear, opposition and uncertainty. In the business world this quality may regularly be put to the test if pursuing new opportunities and having to make decisions that include taking risks. The trick is in striking a balance between knowing which risks to take, and how far to push them.
TOLERANCE TO AMBIGUITY Is the ability stay neutral and suspend judgment or opinion (positive or negative), about the topic being discussed. It’s the willingness to take a step back and absorb all the information to achieve a balanced view and weigh up any uncertainties or risks.
STRONG INTERNAL MOTIVATION It has been shown that that motivation has its roots in physiological, behavioural, cognitive, and social areas. Intrinsic motivation is our inner drive to behave or act in a certain manner in pursuit of our wishes, desires and goals, rather than the reward at the end. People who are intrinsically motivated are more likely to engage in a task willingly, and who are seeking to improve their skills and expertise. Each of us has all the characteristics of a successful business leader, but it is up to you to explore or enhance your individual skills.
Professional Practice
CONFIDENTIAL DATA AND EMPLOYEE RISK MANAGEMENT As IT forensic specialists and Expert Witnesses IT Group UK Ltd (ITG) are regularly asked to investigate the loss of confidential information, Intellectual Property or commercial data. Typically, this information will have originated from a company’s IT systems, which has often been used to find, transfer, send out and/or print documents, all of which are actions which leave a trail of evidence. This situation has been exacerbated by the use of mobile devices and in this era of BYOD the efforts made by a company in caring for their financial and confidential information should be re-doubled, yet seldom is this the case. The threats to a company can be multi-threaded, and are not mutually exclusive. Broadly, this can include the legal risks of sensitive information becoming available, the loss of market position where data is provided to competitors, loss of confidential information, for example, Intellectual Property or sales data and a simple loss of money or goods. Typically it is electronic ‘value data’ that is targeted. For example, confidential customer details, including names and addresses and basic personal information, which can be sold on. At another level this might include banking details and IDs, along with Credit Card details and NHS/DVLA numbers. The Modus Operandi of existing employees, inside the company, is the transfer of documents and data using electronic means and with the advent of BYOD, it may be that the employee has not needed to use their own PC. Common methods can include Email (sometimes their own account used on their own device), various Instant Messenger products, Social Media sites and file uploads to the various cloud based storage products.
The Modus Operandi from outside a company. Many companies fall foul of disgruntled leavers, which is another area of risk that is not difficult to improve. Common problems include, leaving user names and credentials on the company systems so that the ex-employee can still gain access. Also, companies with a high staff turnover allowing the sharing of credentials, thus making it simple for a leaver to continue to access the company IT system. How to avoid these all too common situations? Set up appropriate auditing of internal systems, paying particular attention to monitoring access to confidential data. This should include financial, commercially sensitive and trade secret information. Make sure leaver user names and credentials are quickly removed and avoid the sharing of credentials. Finally, for a belt and braces approach, obtain from time to time or certainly on leaving, a forensic image of employee workstations/laptops and work phone. If a leaver is thought to be suspect, then consider taking a forensic image when they put in their notice, rather than as they leave. IT Group provides a broad range of consultancy services including Expert Witness, e-Disclosure, Forensic Document & Data Recovery, Insurance Assessment, Forensic IT/Telecoms/Electrical systems examination. Contact enquiries@itgroup-uk.com | www.itgroup-uk.com | www.edisclosure-uk.com.
In a recent case the lawyers needed evidence that conversations and access to the confidential information had taken place. To establish these facts ITG was able to investigate the use of Skype™ chat, the movement of files into Dropbox™ and the access to the company CRM system and so substantiate the case against a leaving employee. Other obvious methods include physical media and the copying onto a Portable USB Memory Device or theft of backup media. These methods are relatively simple to monitor and yet rarely is this carried out adequately. Typical targets include compromising financial information, in particular access to Payment Systems including BACS, and Direct Debits/standing orders. For example, an employee who worked in the IT team infiltrated their employer’s BACS system to add a number of payments to bank sort codes and account numbers for accounts that had been set up abroad. Having committed the fraud, these accounts needed to be accessed quickly to withdraw the funds. To do this the employee used a ‘chat’ product to inform their collaborator abroad and provide the expected amounts and company names used. Other internal schemes to defraud an employer often involve purchasing and supplier management, using variations of purchasing goods to be sold on. These are virtually all avoided by the proper auditing of purchase ledgers, goods inwards and the resulting invoices. Similar rules should apply for monitoring expenses. Methods used to hide this behaviour include, using the name of a valid supplier but changing their account details, which are then used to pay for rogue ad-hoc invoices. The setting up of rogue suppliers which issue regular and ad-hoc invoices for payment, is another common method. These methods are typically visible only after the event.
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Professional Practice
SRA CONSULTATION ON SOLICITORS PII – A BROKER’S VIEW FROM JANINE PARKER OF PARAGON INSURANCE BROKERS Furthermore, it has to be questioned whether allowing insurers to aggregate their total exposure on any given risk would affect levels of pricing, again due to where the majority of claims fall. The excess layer markets would also have to be considered, as if they were no longer following an “Any One Claim” limit, then it is certain we would no longer see the low levels of pricing and wide levels of coverage that firms currently enjoy.
The SRA has now launched a new consultation titled “Proportionate regulation: changes to minimum compulsory cover.” The SRA have introduced 5 proposals regarding changes to the minimum terms and conditions; 1. Reduce the mandatory PI cover to GBP 500,000. 2. Introduce an aggregate limit on claims. 3. Require compulsory cover only for claims by individuals, small and medium-sized enterprises, trusts and charities. 4. Reduce run off cover to a minimum of 3 years. 5. Require firms to assess the level of cover appropriate to their firm beyond the minimum. On 2 July the SRA board approved proposals 1 and 5. The changes are still subject to approval from the Legal Services Board and may still be made in time for the 1 October PII renewal. The decision on the remaining proposals has been deferred until 2015. We consider these proposals and their potential impact from an insurance perspective. Reducing the mandatory limit to GBP 500,000 is likely to only affect firms that carry out low value work e.g. low value probate matters. Any work for enterprises/charities with a turnover of greater than GBP 2,000,000 or a trustee of a trust with a net asset value greater than GBP 2,000,000 (as defined by the consultation) may not require the compulsory PI cover, assuming the proposals are passed in full. However, those firms that carry out conveyancing or deal with larger clients are likely to maintain their current levels of cover. In most cases, clients will often stipulate the level and breadth of cover a firm needs to maintain. The SRA is clearly trying to assist smaller firms in finding affordable cover. However, it must be questioned whether reducing the compulsory limit would in fact have any effect on pricing. The reason is that the vast majority of professional indemnity claims from the solicitors’ profession fall under GBP 500,000 meaning that this is where the real exposure exists for insurers. Therefore, any impact on pricing is likely to be negligible.
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The fourth proposal to reduce the run-off requirement to 3 years may well be a welcome one for insurers and legal practices, but it is surely not in the interest of the consumer. The current norm is that a firm will pay between 2-3 times its last annual premium for 6 years of run off cover. Whilst this can be a significant cost for firms wishing to close, that protection is essential for partners and consumers alike. Six years of cover for three times the last annual premium paid does not represent bad value for money. If this were to change you open the possibility of claims against closed firms with no cover in place. Who will pay the claims? If this is to fall to the Compensation Fund then a way of funding this will have to be found, no doubt through the cost of practising certificates. However, if the run off term was reduced then the run off premium cost would certainly fall, although to what extent is unknown, given the majority of claims surface in the first three years after a practice closes. In the final proposal the SRA is clearly putting the responsibility for the level of cover required, over and above the minimum requirement, on the legal practice. This process already exists, assisted by advice from brokers, to ensure appropriate levels of cover. It is highly likely that the vast majority of firms will still maintain their existing levels of cover due to the requirements of their customers and the expectation of Outcome Focussed Regulation. Greater caution will have to be exercised in respect of explaining levels of cover in place at the point of engaging a client. Any potential confusion regarding levels of indemnity could lead to further issues with clients, especially if a firm changes its level of indemnity having previously engaged a client whilst carrying a higher limit. To conclude, it must be questioned whether any of these proposals will benefit legal practices, consumers or public confidence. Debate around the issues of professional indemnity cost is always welcome but the key issue of coverage is being ignored. Fraud is still covered, policy cannot be voided as a result of non-payment of premium, liability cannot be repudiated by insurers – these are the issues that need to be addressed. Though the possibility for adding exclusions into the cover now exists for larger clients, is this in the interest of the profession or consumer. Therefore, the need for your firm to understand its past and future liability is greater than ever, and your broker should be consulted to assist you with this. On a positive note, initial reaction in the market suggests that insurers will continue to offer the “traditional” cover where requested. Firms should use this as a unique selling point when attracting new clients.
Professional Practice
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Professional Practice
DON’T LET YOUR HOT DOG BURN DOGS IN CARS Recent Dogs Trust research shows that despite being a nation of dog lovers, more than one in four UK dog owners admitted to leaving their dogs unattended in cars. Almost half of us (48%) believe it is ok to leave a dog in a car if counter-measures are taken, such as parking under a tree or leaving a window open. Unfortunately, this is a myth - in reality partially lowering the window has no significant effect on the temperature inside a parked car. Under 20 minutes in a hot car can prove fatal to a dog should its body temperature exceed 41°C. As the temperature inside the car rises, in just a matter of minutes, the dog’s suffering will become evident through excessive panting, whimpering or barking. This will develop into a loss of muscle control and ultimately the kidneys will cease to function, the brain will become irreversibly damaged and the heart will stop. Dogs Trust vets have issued the following advice to pet owners and concerned animal lovers: During the hot summer weather many of us want to be outside, enjoying time with friends and family, including our canine pals. Enjoy the fun, but please remember that dogs can suffer from the same problems that humans do from overexposure to the sun, including overheating, dehydration and even sunburn. And if you are feeling hot, you can be sure that your dog is probably feeling it more. Humans are much more efficient at keeping cool than dogs. Dogs don’t sweat, they pant, and the more they pant to keep cool the more energy they exert – creating a vicious circle. To keep your dog happy and healthy this summer, check out some of the following tips: • Be extra careful with dogs that are more prone to overheating. This includes dogs that are overweight or older dogs or those that have lung or heart disease as their respiratory system is already suppressed. • Playing and walks with your dog are best in the early morning or in the evening when the weather is cooler. Remember not to exercise your dog straight after a meal and make sure shady spots and drinking water are available. • Keep longer haired dogs cooler by grooming them to get rid of excess hair, or clip long-haired coats. • Apply pet suncream to areas most likely to burn: nose, ears, eyelids and belly. Human suncream can be toxic to dogs so make sure you buy one specifically made for them, available from your local pet shop. • If you are having a barbecue keep items such as matches, lighter fluid, candles and leftover bones out of harm’s way. • Do not leave your dog in the car in warm weather. Summer is a wonderful opportunity to spend quality outdoor time with your canine pal, just remember to keep cool and keep safe!
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• Don’t leave your dog in a parked car, even for a few minutes even if it seems cool outside it can become very hot very quickly. Parking in the shade and/or keeping the windows down does not make it safe! • If you see a dog in distress in a parked car call the Police Service (101) or the RSPCA (SSPCA in Scotland). • Make sure you keep your dog as cool as possible when driving: avoid travelling during the heat of the day, use sun blinds on the windows and consider opening a window a little to allow a cooling breeze to circulate in the vehicle. • Make sure you have a supply of water and know where you can stop off en route for water breaks. Dogs are not able to cool down as effectively as humans so could suffer from heat stroke and dehydration very quickly. • If you are present at the rescue of a dog from a hot car that is clearly in distress, seek immediate veterinary advice. The very first priority is to prevent the dog from getting any hotter, attempt to provide shade from the sun and move to a cooler area. Dampening the dog down with cool (but not freezing) water will help start to bring the body temperature down. • Wet towels can be used to cool a dog but these must be regularly changed or spraying them down with water and placing them in front of the air conditioning vent to enhance evaporation on the way to the emergency appointment. Dogs Trust has created a time-lapse video in support of this campaign, featuring a melting ice sculpture of a dog locked in a car. Watch the video at https://www.youtube.com/watch?v=oMmjnI0HZ3Y&feature =youtu.be. Dogs Trust is the UK’s largest dog welfare charity and cares nearly 17,000 dogs a year through its network of 19 rehoming centres in the UK and one in Dublin. Please visit www.dogstrust.org.uk.
Professional Practice
COSMETIC LITIGATION: THE TIP OF THE ICEBERG Gone are the days when people merely dreamed of resembling Angelina Jolie or Brad Pitt. Now they are able to do so or so the theory goes. People have always been interested in cosmetics and ways to improve their appearance, in particular the aesthetic beauty of the face. Latterly, an entire industry has arisen around such non-surgical novelties as Botox and derma fillers, bleaching of the teeth, chemical peels and hair transplants to name but a few. Many of the participants are the middle-aged hoping to recapture lost youth but many are young people wanting to preserve their looks or even change their looks to resemble their favourite celebrity. Historically, this has been the reserve of the rich and famous most notably Michael Jackson but now the man in the street can have his face injected with botulinum toxin during his lunch break, for fairly modest sums of money. One can book onto loyalty schemes to make this a regular arrangement. There is no compulsory cooling off period to give the patient/client time to consider. The industry is almost totally unregulated such that anyone from a plastic surgeon to a postman can offer nonsurgical procedures as long as they have taken a short course. The likes of Groupon offer discounted Botox as though it were a pair of new shoes. It is not surprising therefore that so many of these procedures end in disaster. Not only is the cosmetic effect disappointing and/or asymmetrical but Botox and derma fillers in particular have been known to cause blindness, necrosis of the skin, sagging eyelids and allergic reactions to name but a few. Sir Bruce Keogh was charged with the task of examining this industry and his report is well worth a read. The gist of his findings is that the industry is desperately under regulated. The training has to be far more serious. All practitioners offering these services should be registered and insured. The materials should be treated as medical materials requiring a prescription. There should be a cooling off period, as is the case for surgical procedures. The Government have considered his paper and are impressed by it. The rhetoric is one of adoption of his recommendations but as yet there is little or no action on the ground. No doubt in the run-up to a general election the Government is concerned with more pressing matters and so one has to assume that the status quo will remain for the forthcoming years. Indeed the Queen's speech in June 2014 made no mention of the draft cosmetic bill and the industry remains without any form of statutory regulation. It is well known that Sir Bruce himself is frustrated by the lack of activity on the legislative front. It is anticipated that regulation is two to three years away. However, regulation itself will not do away with malpractice as is well known to the legal profession in such areas as industrial disease.
When the procedure goes wrong, they are likely to be catapulted into the full blown disorder. It is very difficult to treat. One of the main authorities on the subject is David Veale of the Maudsley Hospital in South London. He is a proponent of inpatient treatment where appropriate and so one can see the potential for significant special damages on the horizon. It is not all doom and gloom. A new independent register, Save Face, has been set up to provide accreditation and regulation through robust auditing and monitoring measures. This will assist consumers to make an informed decision about nonsurgical practitioners. The clinical director of Save Face is a former Chair of the British Association of Cosmetic Nurses. To those thinking of having cosmetic surgery or non-surgery, one must always look beyond a cursory Google search. That is not to say that Google cannot be a useful tool but it must be treated as a starting point rather than the final word. The practitioner should be registered with their governing body, whether the General Medical Council, Royal College of Nursing or General Dental Council etc. Membership of a professional body is also a good sign. For example, a plastic surgeon should be a member of BAAPS, a dermatologist should be a member of BAD and so on. The consumer should always look for proof of insurance. Whilst not compulsory, it is always a good sign if the practitioner is registered with the Government's Care Quality Commission. This is a voluntary step on the part of the clinic and is commendable.
YOUNG PEOPLE The digital age is a wonderful era in which to live. It has opened up opportunities to the world that former generations could not have imagined. However, as with all powerful tools there is a dangerous price to pay. I took my usual holiday this year in a sunny resort and in keeping with tradition spent most of my time around the pool or on the beach. This year, I noticed groups of young girls and boys engaging in a new trend. I lost count of how many young people took pictures of themselves with their smart phones. The word “Selfie� has winged its way into the Oxford English dictionary. However, they did not take one but dozens upon dozens of photographs presumably in an effort to land upon the perfect Selfie. There are also applications available on the internet which enable the consumer to airbrush portraits to iron out any imperfections. It is, of course, the final Continued
Damages are likely to be significant. There is a particular psychiatric diagnosis known as Body Dysmorphic Disorder which does not appear in the JSB guidelines and appears only sparsely within the reported cases. The condition speaks for itself. It is not mere vanity. This is a form of intense anxiety and/or obsession which is so debilitating to the sufferer that he/ she is incapable of leading a normal life. Indeed, the prevalence of morbid ideation in BDD sufferers is known to be higher than for any other psychiatric condition. It is important to this discussion because many people who would go for Botox and the like already suffer from it or are borderline.
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Professional Practice
polished article which makes its way onto the Facebook post. The name of the game is to collect as many “likes” as possible. The problem is that young people are now bombarded with perfected images not of remote celebrities but friends and colleagues. Inevitably, they will compare themselves to others more and more but the comparison is not based on real life but on processed images. This is no consolation to the young teenage boy or girl obsessed with their own insecurities. These comments are not merely anecdotal. A recent study in the UK and USA (see The Times 15th July 2014) reported a clear link between time spent on Facebook and poor body image. 65% of people in the UK have smart phones and 31 million use Facebook. These figures will only increase. The link between social media and the increase in affordable non-surgical procedures is undeniable. Some of this is harmless, some of it is menacing and some is nothing short of tragic. Another word which makes its début in the dictionary is “trolling”. This is the phenomenon of internet bullying. It results in humiliation of children before not a handful of their peers but entire social network communities. Teenagers are notoriously sensitive and insecure about their looks. This is the time where hormones and genetics are particularly kind to some and cruel to others. It is no surprise that we read of young children who indeed take their own lives as a result of this new culture. Sadly, there will be cosmetic practitioners who take full advantage of such personalities for their own gain. I do not suggest for one moment that we lawyers perform our duties only for the greater good but this is one area, amongst others, in which we can bring the perpetrators to a degree of justice in the form of compensation. This is also a time in which the marketing teams within the legal profession need to earn their crust. Everybody knows that where there is blame there is a claim. This principle is generally attributed to traditional accidents on the highway or in the workplace. Dissatisfaction with a cosmetic procedure may not be classically recognised as an injury by the general public. As a profession, we need to bring this knowledge to the attention of potential Claimants.
THE LAW As to the Law, there is refreshingly little to say at the moment. There are plenty of cases making their way through the civil justice system but precious little in terms of reported authorities. One of the key issues seems to be the extent to which the consumer is entitled to be informed of all potential risks. Traditionally, there are two polarised approaches to informed consent. One is the Sidaway paternalistic approach to medicine in which the doctor can be trusted to determine what risks the patient needs to know, so as not to dissuade him/her from engaging in necessary medicine. The alternative approach is the Chester v Afshar method, namely that the patient is entitled to all the available information so as to make the most informed decision. The latter approach must be the correct one for cosmetics in that no cosmetic procedure, save exceptional circumstances, is essential. In Chester, not a cosmetic case, an unlikely eventuality occurred which had not been explained to the patient. The twist in the story was that the claimant's evidence was that she would have undergone the procedure in any event. On the face of it, the classic “but for” test of causation was not met. The House of Lords, with the great Lord Hoffman dissenting, took the view that this was an exception to the normal rule and found for the claimant. It is also important to note that these cases will be prosecuted in negligence and private contract as very few cosmetic procedures are offered by the NHS. Therefore, the Supply of Goods and Services Act will apply to those who are merely dissatisfied with the results and feel that they did not get what they bargained for. This will of course be the meat of the evidential dispute between the parties. One has to assume that experienced medical practitioners will be more familiar with the concept of informed consent than beauticians, hairdressers and other novices in the marketplace. One can see the scope for plenty of argument in the future. MICHAEL KREBS BARRISTER 1 OLD HALL STREET LIVERPOOL
YOUR 2014 PROFESSIONAL INDEMNITY INSURANCE RENEWAL Following on from the Consultation Paper published by the SRA (discussed in full on page 24), we now know that the only proposal going forward for sign off by The Legal Services Board (LSB) is the reduction of the compulsory limit to £500,000. (The rest is deferred and may yet come back next year). It is not a given that the LSB will sign off on this proposal but if they do it will not be until August 2014. The key question now is “How should I approach renewal in the light of this potential change?” Perhaps the best place to start is to understand how insurers are going to approach renewal this year. The overriding message from insurers seems to be one of “business as usual”. For some, the proposed level is too low, others are going to proceed as they currently do and others will quote, but only to certain firms dependent on risk profiles.
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KEY POINTS For now the recommended approach to the renewal process should be keep calm and carry on. Being ready to approach insurers by the beginning of August should be your top priority, regardless of whether new regulation comes through. If we do see a reduction in the compulsory limit and you believe your firms limit should be reduced, then you will be in the best place to do so if your negotiations are already under way.
YOUR SUBMISSION As ever a well put together, accurate and succinct presentation is the key to putting you in control. This should include a Proposal form (No mistakes please! – This is, after all cover for negligent acts, errors and omissions!), claims summaries (even if you have had no claims you will still need to provide current versions of these) and a short overview of your firm
concentrating on your attitudes to risk management and your vision for the future. Should you have any claims or disciplinary issues, these will need to be disclosed, remember that outlining what you have done to prevent similar problems happening again is just as important as providing details of the claim or breach itself.
APPROACHING INSURERS Renewal seasons can be daunting at the best of time, but our advice has been that no solicitor should be dismayed by the prospect of pending regulatory change. For those that genuinely believe their current limits are too high, speak to a specialist. An experienced broker has the knowledge and experience to discuss issues involved in choosing the right level of cover.
A RELATIONSHIP THAT IS
SOLID IN A SHIFTING LEGAL LANDSCAPE
The legal landscape is changing. To thrive, practices are evolving. Our specialist relationship managers understand your profession. Trained as Lexel Consultants, they know SRA Accounts Rules, and are poised to support you through opportunities and challenges. lloydsbank.com/solicitors
Professional Practice
DX LAUNCHES EDX – A GAME CHANGER IN ENCRYPTION SERVICES DESIGNED TO HELP LAW FIRMS SHARE SENSITIVE DATA WITH EXTERNAL THIRD PARTIES The UK’s leading courier services provider to law firms launches a new secure electronic document exchange service, offering unique benefits to law firms and a free entitlement to existing Customers. London – 3rd July 2014 – DX, a leading independent mail, parcels and logistics end-to-end network operator in the UK and Ireland, today announces the launch of eDX, a secure electronic document exchange service that will enable Customers to share all forms of electronic information. Powered by Egress Switch, the award-winning and only UK Government certified email encryption product, eDX will combine service and technology excellence in order to enable law firms to encrypt and secure emails and files of any size and format. For over 35 years, DX has been successfully providing reliable and secure physical mail delivery services to law firms, and currently delivers over 170 million physical packages every year. Recognising the on-going changes in the communications landscape, the launch of eDX represents an extension of the services that DX delivers to include all forms of information and data, regardless of whether it is physical or electronic. Leveraging the Egress Switch encryption platform, eDX integrates with desktop, gateway and mobile applications (including Microsoft Outlook), as well as firms’ document and practice management systems, to make sharing electronic information securely as simple as sending a conventional plaintext email. The service offers central management and comprehensive auditing and reporting functionality, so you can track information leaving your organisation and comply with the SRA and DPA. In addition, real-time revocation means you can restrict access to already sent information, so your firm remains protected at all times.
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Commenting on the announcement, Petar Cvetkovic, CEO of DX, states: “The launch of eDX represents an exciting addition to the DX services portfolio. We have been leaders in our market for several decades and using our relationship with the legal industry, we’ve listened to and responded to the needs of our Customers. Using the DX platform, we feel we are uniquely placed to offer a complete secure information sharing solution, which extends to both physical and electronic data. By consolidating these services into a single offering, the potential benefits to firms will be huge. To demonstrate our commitment to this new service, we are rewarding existing Customers by offering them a free entitlement based on their existing DX Exchange subscription.” Tony Pepper, CEO of Egress Software Technologies, comments: “Today’s launch of eDX represents a very exciting yet natural extension of the DX’s offering, which already embraces great service, security and Customer choice. We have built Egress Switch’s reputation for excellence on similar values, in addition to our commitment to technological investment in order to develop the market’s leading encryption services platform. As the UK’s only Government CPA certified email encryption product, we feel this approach has been fully justified. Working in close partnership with DX, we believe today’s announcement brings to market a unique and comprehensive secure information sharing platform that combines excellence in both service delivery and technology.” Cvetkovic concludes: “We see eDX as an example of a trusted service, delivering trusted technology in order to provide genuine Customer benefits. Working closely with the team at Egress and leveraging their market-leading encryption technology, we feel we have built a service model that will not only offer this to all DX Customers but also the wider market.”
Professional Practice
PROPERTY SOLUTIONS FOR
ESTATE ADMINISTRATION Estate administration can be a difficult subject, and one which needs all avenues covered. With over 90 years of experience, Fraser & Fraser – genealogists and international probate researchers – provide a number of solutions to ensure nothing is overlooked. Whether that means finding missing heirs and beneficiaries, or providing the most appropriate probate insurance, the firm can tailor their service to suit you. Property Management Services are one of many aspects Fraser & Fraser cover. The home is often at the heart of an estate and so may be the most valuable asset. Empty properties, due to a sale impending or a probate issue, can be difficult to manage – vandalism and burglary is a constant threat, and more so as the nights close in. Based on insurance company, Aviva’s research, which collated 10 years of claims, reports showed a huge spike in those relating to malicious damage, with a sharp, 150% increase during the autumn months. Fraser & Fraser can help protect vulnerable properties by arranging for Empty Property Insurance to be put in place. By replacing existing policies invalidated by the property remaining unoccupied, it becomes protected against unforeseeable events. Property Maintenance and Security is another way in which Fraser & Fraser can help, ensuring the home is secure and fit for
viewings. By arranging clearance and clearing ahead of these, organising lock changes and fitting new, remotely monitored wireless alarm systems, you can be secure in the knowledge that your property is looked after. Given it is up to the estate administrator to manage and realise the assets of an estate, Fraser & Fraser can also provide Property Valuations, helping you make an informed decision when it comes to selling. This process involves at least two local agents giving their expert opinion on price and market conditions. If the property is ultimately sold through this source, the report is free. And it doesn’t stop there – Fraser & Fraser also offer support for Probate Sales, streamlining the process and speeding it up. Help with Energy Performance Certificates is there too via a report, suggesting ways in which a property could be altered to improve its energy and carbon emission rating. With competitive prices combined with a thorough, efficient service, Fraser & Fraser can support you through every step of estate administration. To find out how we can help, please visit our website: www.fraser&fraser.co.uk, email legal@fraserandfraser.co.uk or call us on 020 7832 1430.
As a leading firm of genealogists and international probate researchers, we tailor our services to suit you. Whether you’re looking for Missing Will Insurance or searching for a missing b beneficiary, we work to the highest possible standard whilst minimising gy your ris sks.
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Sub-committee Reports
PROFESSIONAL MATTERS SUB-COMMITTEE Both the Solicitors Regulation Authority (SRA) and the Legal Services Board (LSB) continue to issue consultation papers. We have in the past criticised the fact that it has become common practice to allow insufficient time to respond properly to these. The SRA was particularly at fault when it issued four major Consultations on 7 May 2014 with a closing date of 18 June 2014. The Law Society has made forceful representations as to this, as have we. The subjects tackled were: the licensing of Multi Disciplinary Practices (MDPs) to conduct non-Reserved legal services, proposed revised eligibility criteria for claiming from the Compensation Fund, proposed changes to reporting accounting requirements, and proposed changes to the minimum compulsory professional indemnity cover. In the time available we responded to the last two, which seemed the most important (although all of them need much longer and more careful thought before implementation). Our principal responses to Consultations are summarised below: • We supported the SRA’s proposal to carry out the keeping of the roll exercise only when there is a regulatory need (no longer annually), reducing the cost for those no longer practising. A major advantage is that from 2015 non-practising solicitors would not have to apply every year to stay on the Roll and pay £20 for doing so. • We also supported the SRA proposal to increase the level of residual client account balances solicitors can donate to charity without applying for permission from £50 to £500. • We have major reservations as to the proposals concerning the minimum compulsory professional indemnity cover. The Consultation proposed to reduce the minimum cover to £500,000 per claim with an aggregate annual limit (which might be fixed at anything from £1.5m to £5m), and a requirement of only 3 years run-off cover rather than the current 6 year requirement. (A footnote states that “At present cover beyond six years is provided by the Solicitors Indemnity Fund (SIF) out of ‘spare capital’ built up prior to the ending of SIF. That cover beyond 6 years is currently scheduled to end in 2020.”) In addition it is suggested that compulsory cover should be restricted to: “Individuals; small and medium-sized enterprises –businesses with a turnover not exceeding £2 million; a charity with annual income less than £2 million; and a trustee of a trust with a net asset value less than £2 million.” It seems to us that, if implemented, these proposals (particularly when combined with others from the SRA) will seriously reduce the protections currently offered by solicitors to clients and others. No evidence has been produced from insurers as to whether the cost of obtaining cover at £500,000 per claim will be much less than a higher sum for firms whose risk profile suggests that claims will not exceed the lower figure. However the assumption that most claims generally do not exceed £500,000 is not based on recent figures. Statistics are produced from SIF which are several years old and take no account of current property prices in London and the south east. We have in the past explained to the SRA that many claims are brought several years after the event. As we pointed out in our responses to the SRA’s previous Consultations “The Architecture of Change Part 2” and “Future Client Protection Arrangements”, even 6 years is inadequate for a very significant number of claims. Professional indemnity business is “long tail” and many claims are brought many years after the acts or omissions that gave rise to them. Six years is only the starting point for limitation periods in professional indemnity claims. Most clients have concurrent claims in contract and tort. The cut-off period for a claim in
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tort is 15 years and even that can be extended if there is any concealment. The Financial Ombudsman Service has no cutoff period. Time does not run against infants until they reach majority and remaindermen under trusts only acquire a cause of action when they acquire an interest in possession. Without the SIF underpinning many claims will in future not be covered, which will do great harm to the solicitors’ “brand”. As we stated in our Response: “In previous responses we have expressed our concern that the introduction of ABSs [Alternative Business Structures] (which we supported in principle) was being rushed through without ensuring that they provided the same level of protection to clients and others as was currently being provided by the solicitors’ profession. We find it disturbing that without much debate (or ever stating its position explicitly) the SRA seems to have decided that the answer is to reduce the protections provided by solicitors.” • We were also concerned about the proposal to “Remove the mandatory requirement that firms must have their client accounts reviewed by an independent accountant and submit an annual accountant’s report to the SRA”. Instead it would “At the annual PC renewal stage, require COFAs to sign a declaration that they are satisfied that the firm is managing its client account in accordance with the SRA Accounts Rules.” Whilst we think that some modification of the existing requirements would help to reduce unnecessary regulation, these proposals have two basic defects. They place too much responsibility on COFAs, some of whom welcome an external check on the position, not least in providing support for their own efforts to put right any failures. The role of a COFA would become even less attractive to anyone who is conscientious about carrying out the role. It may not deter the less conscientious. This leads to the second major defect: the lack of any external check on the entity’s client account. That seems most unwise. The sooner problems are recognised the better. This could seriously reduce client protection and put greater strain on the Compensation Fund and Professional Indemnity insurers (at a time when the SRA is proposing to reduce protections currently available to clients and others from those sources). • We also considered a Consultation from the Department for Business Innovation and Skills (BIS) called “Data Sharing for Non-Economic Regulators”. This has to be considered in the context of a Regulators’ Code produced by BIS. This imposed duties on regulators to “carry out their activities in a way that supports those they regulate to comply and grow” and also to “share information about compliance and risk”. The Consultation states that “this consultation focuses upon regulators sharing data with regulators. It is not concerned with making data publicly available (although it is recognised that some data types are already in the public domain).” In many ways the sharing of information is to be applauded (the Consultation states that “If regulators collected information from business once and shared it with other regulators we could prevent multiple requests being made of business”.) However we have some concerns as to the use to which it might be put, particularly in the context of the SRA’s claim to override client’s privilege. It would be very serious if this became a back-door to sharing confidential information. We are currently considering an LSB Consultation to modify the functions of the Chartered Institute of Legal Executives, and a Law Society consultation on the Practising Certificate fee. JULIAN AYLMER
Sub-committee Reports
EDUCATION AND TRAINING SUB-COMMITTEE REGULATORY CHANGES On 1st July, the SRA introduced a number of regulatory changes in relation to education and training, as well as issuing new Training Regulations (SRA Training Regulations 2014). Of particular relevance to the Society’s members are the changes in relation to training contracts. Although the requirements for two years of training for trainee solicitors remain, from 1st July: • the training contract itself has been replaced with the concept of “Recognised Training”, and firms are no longer required to use the SRA’s prescribed form of training contract. Instead of being a “Training establishment”, a firm which employs trainees is now an “Authorised Training Provider” under the new Training Regulations. • there is no longer a requirement for trainees to have experience of both contentious and non-contentious practice, but they are required to be provided with training “and experience in at least three distinct areas of English and Welsh law and practice”. An “Authorised Training Provider Information Pack” has been produced by the SRA and is available on the SRA website at: http://www.sra.org.uk/trainees/resources/authorised-training-providerinformation-pack.page Training contracts commenced before 1st July, 2014 remain subject to the pre-1st July, 2014 Training Regulations.
CONTINUING COMPETENCE The existing CPD regime will be replaced from November 2016 with a regime of “Continuing Competence”. Under the new Continuing Competence regime, there will no longer be a minimum hours requirement for CPD, so solicitors will not need to complete sixteen hours of CPD each year. Introduction of the new regime has been moved to 2016 in order to give firms time to develop the necessary culture for a scheme which will focus on individual competence, rather than a blanket requirement
for all solicitors. However, firms will be able to opt in to the new regime from spring 2015 (date to be advised), should they wish to do so. To support solicitors in self-assessing competence and their individual training needs, guidance will be published in the spring of 2015.
COMPETENCE FRAMEWORK The SRA is also developing a Competence Statement for solicitors, which will underpin the new Continuing Competence regime. A specific Competence Statement for the point of qualification is also being developed. The SRA will next be reviewing prescription and validation of the pathways to qualification. This review is expected to take place in 2015. However, the current legal education and training framework will continue to be available until at least the end of the 2017/2018 academic year. MELISSA HARDEE
INTERNATIONAL SUB-COMMITTEE have supported human rights in Colombia since 2005, and this important work will continue until it is no longer needed. There is hope for an end to the conflict in Colombia as peace talks continue into their second year. In October, CWHLS International Subcommittee members will attend the Federation of European Bar Associations Autumn Congress in Lucca, Italy from 2nd to 4th October. The topic of the Congress is a study of comparative judicial systems, a vital issue for any practitioners who maintain an international practice, as increasingly clients require us so to do. The organising committee in Lucca promise receptions and a gala banquet in beautiful and extremely interesting palaces. CWHLS International Sub-committee brings together practitioners with clients overseas, and those who have an international focus to their work, whatever that might be. Members of CWHLS will be in Colombia at the end of August and beginning of September for the International Caravana of Jurists, known to UK lawyers as the Colombia Caravana. Their hosts are the national umbrella association of Colombian human rights lawyers (ACADEHUM). CWHLS International Sub-committee members
CWHLS members are invited to Lucca, and should go to www.fbe.org for further information.
PROFESSOR SARA CHANDLER
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Sub-committee Reports
LAW REFORM SUBCOMMITTEE
LAND LAW AND CONVEYANCING SUB-COMMITTEE
Last year the committee made a suggestion to the Law Commission that its next law reform programme might include some special protection for volunteers in claims against them in tort. The Commission declined, but the Queen apparently thought otherwise and announced a relevant proposal when she opened Parliament. The Committee immediately wrote to the Minister of Justice asking to be included in the expected consultation. However the Social Action, Responsibility and Heroism Bill had already been drafted, introduced and given its first reading in the Commons.
At our latest meeting the following (inter alia) were considered:
The Bill has been much criticised on two opposite grounds, on the one hand that it does not change the law at all, and on the other hand that it is likely to deprive victims of redress. The Committee is hoping that an amendment may be devised that would give some relief to a volunteer in a suitable case without affecting rights of victims in ordinary cases of negligence. But do not hold your breath – it is not easy to achieve an amendment to a Government bill during the course of its passage through Parliament! ARTHUR WEIR
1. The budget announcement that the 15% rate of SDLT would apply to the acquisition of enveloped properties where the effective date was on or after 20th March 2014 and the value exceeded £500,000. A classic example of the Revenue reacting to a money spinner, as initially introduced of limited scope, by substantially increasing its significance. Beware the introduction of a mansion tax – both the annual rate applicable and the capital value to which it applies are likely to change rapidly, the former increased and the latter decreased. With less fanfare but at least as important was the announcement that Annual Tax on Enveloped Dwellings (“ATED”) would apply to properties valued at between £1,000,000 and £2,000,000 from 1st April 2015 and to properties valued at more than £500,000 from 1st April 2016 with corresponding liability for ATED related CGT (applicable to gains from 6th April 2015 and 2016 respectively). 2. The consultation on the possible introduction of a CGT charge on the disposal of UK residential property by non residents. It includes a suggestion that the right to elect a property as a principal residence for CGT purposes may be withdrawn and of significance to practitioners is the possibility that they will be made responsible for administering a withholding tax. 3. The proposed changes affecting the Land Registry, one to centralise the LLC register, the other to turn the bulk of the Land Registry into a stand alone company. It appears that the former will be implemented (with some concessions to the principal objectors) and the latter (according to unsubstantiated press comment) shelved at least for the foreseeable future. 4. The Leasehold Reform (Amendment) Act 2014 The amendment in effect from 13th May 2014 (and not applicable to Wales) enabling duly appointed agents to sign notices relevant to enfranchisement or lease extension applications under the Leasehold Reform, Housing and Urban Development Act 1993 was considered to be useful to avoid problems that have arisen from the previous requirement that such notices “be signed by the tenants or (as the case may be) by the tenant by whom it is given”. 5. Some case reports attracted attention:
JUNIOR LAWYERS’ DIVISION
a)
b)
At the time of going to press there is nothing to report from the Junior Lawyers’ Division. c)
Santander UK plc v. RA Legal Solicitors – a firm which had in good faith paid over a mortgage advance to the seller’s solicitors was not relieved (from a breach of trust claim) under section 561 of the Trustee Act 1925. Although there was some criticism of the procedure adopted during the conveyancing process which was significant in the decision it is difficult to know what more the lawyers could have done to protect themselves – a salutary warning. Marks and Spencer plc v. BNP Paribas SSTC(J) Ltd – the CA decision reversing that at first instance – although well publicised and taken on board by practitioners the decision reflects an absence of common sense and although correct on a strict interpretation of the Apportionment Act it is clearly inequitable that a party can obtain a financial gain without a corresponding benefit to the payer. Windermere Marine Village Ltd v. Wild and others – important in deciding that a provision in a residential lease enabling a third party, in the case in point the landlord’s surveyor, to determine a “fair proportion” for the purposes of a service charge liability whose decision would be “final and binding” – a not uncommon provision – would be void. So landlords are advised to provide for fixed service charge proportions to avoid the risk of losing the ability to control the apportionments (in this case the LVT substituted its own apportionment for that of the landlord’s surveyor).
ADAM MABERLY
34000theReport
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