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introduction PUBLISHER Ian Fletcher Benham Publishing Limited 3tc House, 16 Crosby Road North, Crosby, Liverpool L22 0NY Tel: 0151 236 4141 Facsimile: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com
3 4 4 5
introduction Contents Officers for 2014-2015 Committee Members President’s Page
7 8 9 10 10 11 11
local issues The Winds of Change Council Member Report Wine of the Season CILEx welcomes first Welsh woman president Mundays builds team with new construction partner Enquiry into paralegal workforce to commence Members Application
ADVERTISING AND FEATURES EDITOR Anna Woodhams DESIGN AND PRODUCTION MANAGER Fern Badman ACCOUNTS DIRECTOR Joanne Casey MEDIA No. 1358 EDITOR Darrell Webb PUBLISHED August 2014 – © Bill of Middlesex - Benham Publishing LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press.
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14
book review HERSHMAN & McFARLANE CHILDREN ACT HANDBOOK 2014/15
property A Cautious Confidence
Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us. DISCLAIMER The Middlesex Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation. All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.
Copy Deadlines 2014 November Issue February Issue May Issue August Issue
17th October 24rd January 17th April 18th July
Anyone wishing to advertise or submit editorial for publication in the Bill of Middlesex please contact Anna Woodhams, before copy deadline. Email: anna@benhampublishing.com Tel: 0151 236 4141
The Bill of Middlesex
16 18
private client COSMETIC LITIGATION: The tip of the iceberg Russell-Cooke secures compensation for the family of a man who died after having a wart removed
20 21 22 23
professional issues The Nine Characteristics of Successful Business Leaders and Entrepreneurs Compliance Corner DX launches eDX Don’t let your Hot Dog burn SRA Consultation on Solicitors PII
24
ymg The Dos and Don’ts of CV writing
26 26 27
employment law Constructive Dismissal – Resignation or Affirmation? Positive Discrimination in the Cabinet? Flexible working for all?
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film FILM AND THE LAW No 24: The Film Belle, the Slave Trade & the Law
3
officers COMMITTEE MEMBERS
PAST PRESIDENTS R Garrod, J A S Nicholls, R C Politeyan, J Aylett,
Immediate Past President: DARRELL WEBB
OFFICERS FOR 2014/2015
K Goodacre, H J B Cockshutt, W Gillham, L Lane Heardman, D Grove, L A Darke, C Beety, Mrs L E Vickers, H Hodge, E G B Taylor, A A M Wheatley, A H Kurtz, M J S Doran,
Bolt Burdon Solicitors
H B Matthissen, G Parkinson, HHJ R D Connor,
Providence House, Providence Place, Islington N1 0NT
A Bates, J J Copeman-Hill, D B Kennett-Brown,
(020 7288 4795) (DX 122237 Upper Islington)
S B Hammett, Miss F A Shakespear, HHJ P E Copley,
e-mail: darrellwebb@boltburdon.co.uk
A M Harvey, H R Hodge, G R Stephenson, B S Regler, W J C Berry, AS Atchison, L M Oliver,
President:
S W Booth, D D P Debidin, R E J Hansom, E H Lock,
GURMEET KHARAUD
Alexis Ash of Iliffes Booth Bennett Solicitors
Fort & Co. Solicitors
Capital Court, 30 Windsor Street, Uxbridge UB8 1AB
R S Drepaul, A Sriharan, Ms M Fernandes
(08456 381 381) (DX 45105 Uxbridge)
A Darlington, S Chhokar, Ms M Crowley, Professor M Davies,
e-mail: alexis.ash@ibblaw.co.uk
S Hobbs, Mrs R Sriharan, Mrs S Scott Hunt, D Webb.
Saunders House, 52-53 The Mall, Ealing W5 3TA (01753 691224) (DX 5119 Ealing)
Mrs A Taylor, Mrs N Desor, Ms M Hutchinson, M Guyer,
e-mail: gk@fortsolicitors.com Vice Presidents: ALAN WILLIAMS 59 St Marys Road, Ealing W5 5RG (07973 622312)
Sundeep Bhatia of Beaumonde Law Practice Evans House, 107 Marsh Road, Pinner HA5 5PA (0220 8868 1614 ) e-mail: sundeep.bhatia@beaumonde-law.co.uk
COMMITTEE MEETINGS 2014 16 June 14 July
e-mail: creativewit@tiscali.co.uk Nirmala Chandrasena of Chands Solicitors
15 September
Honorary Secretary
145 Cannonbury Avenue, Pinner, Middx HA5 1TR
20 October
MAURICE GUYER
(020 8933 8332) (DX 48001 Rayners Lane)
Vickers & Co.
e-mail: n.chandrasena@btinternet.com
183 Uxbridge Road, Ealing W13 9AA
17 November 2015 19 January 16 February
(020 8579 2559) (DX 5104 Ealing)
Professor Malcolm Davies
Meetings start at 6.30pm and will be held at Walpole House, UWL
e-mail: mguyer@vickers-solicitors.co.uk
Head of Ealing Law School
offices in Bond Street, Ealing W5. Room 209.
University of West London Honorary Treasurer: LAURA VIRCAN Desor & Co.
St. Marys Road, Ealing W 5RF (020 8231 2226) e-mail: malcolm.davies@tvu.ac.uk
AGM Wednesday 18 March 2015
768 Uxbridge Road, Hayes, UB4 0RU (020 8569 0708) (DX 44657 Hayes 1 Middlesex)
Hardeep Dhillon of Desor & Co,
e-mail: laura@desorandco.co.uk
768 Uxbridge Road, Hayes, UB4 0RU (020 8569 0708) (DX 44657 Hayes 1 Middlesex)
PARLIAMENTARY LIAISON
Honorary Social Secretary:
e-mail: hardeep@desorandco.co.uk
Michael Garson
ALAN WILLIAMS 59 St Marys Road, Ealing W5 5RG
Stephen Hodgson
(07973 622312)
Lecturer in Law, Ealing Law School
e-mail: creativewit@tiscali.co.uk
University of West London St Marys Road, Ealing W5 5RF
Honorary Membership Secretary: SUSAN SCOTT-HUNT
(020 8231 2406) e-mail: stephen.hodgson@uwl.ac.uk
Principal Lecturer in Law, Middlesex University The Burroughs, Hendon NW4 4BT (020 8411 6019) e-mail: s.scott-hunt@mdx.ac.uk
Maralyn Hutchinson of Kagan Moss 22 The Causeway, Teddington, Middx TW11 0HF (020 8977 6633) (DX 35250 Teddington)
Council Members for the Middlesex Area:
e-mail: maralyn.hutchinson@kaganmoss.co.uk
Central & South Middlesex Michael Garson
Fahmy Mohamed of Vincent Solicitors
Kagan Moss
11-13 South Road, Southall, UB1 1SU
22 The Causeway, Teddington TW11 0HF
(020 8574 0666)
(020 8977 6633) (DX 35250 Teddington)
e-mail: fahmy@vincentsolicitors.com
e-mail: michael.garson@kaganmoss.co.uk Ariya Sriharan of Sriharans North Middlesex
223 The Broadway, Southall UB1 1ND
Michael Singleton
(020 8843 9974) (DX 119583 Southall 3)
Singletons Austin Ryder
e-mail: info@sriharanssolicitors.co.uk
2 Crossfield Chambers, Gladbeck Way, Enfield EN2 7HT (020 8367 0387) (DX 90604 Enfield) e-mail: michael.singleton@singletonsuk.com The Law Society Greater London Regional Office,
Renuka Sriharan of Sriharans 223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3) e-mail: info@sriharanssolicitors.co.uk
The Law Society, 113 Chancery Lane, London WC2A 1PL
Elisabeth van der Weit of Hameed & Co.
(020 7316 5554) (DX 56 London/Chancery Lane)
4 Grand Parade, Forty Avenue, Wembley Park, HA9 9JS
Regional Manager: Mark Hudson
(020 8904 4900)
e-mail: mark.hudson@lawsociety.org.uk
e-mail: hameed@hameed.plus.com
4
www.middlesex-law.co.uk The Bill of Middlesex
introduction
President’s Page Since the last Bill of Middlesex on behalf of the Society I raised objections to the numerous changes which the SRA recently proposed. Please see the letter below. I also set out some ideas which I have sought to implement during my tenure and I can report as follows in similar notation:1. Past Presidents’ dinner will be resurrected and will take place later this year. 2. The Presidential length of office is open to the Committee. 3. The Annual dinner will not be held this year but next year. It is envisaged, if possible, that we may join other societies who are planning a s Magna Carta event. This would be an opportunity for local societies to come together and I shall keep you updated on this. 4. I have has already made representations to join SALS (Southern Area Association of Law Societies) and consideration is being given by them at their next meeting in January 2015. 5. The additional venue for committee meetings in inner London is yet to be determined. 6. The challenge in relation to CAFCASS has begun. I wish you all well.
Gurmeet Kharaud President, Middlesex Law Society e-mail: gk@fortsolicitors.com
Gurmeet Kharaud
RESPONSE TO SRA ON BEHALF OF MIDDLESEX LAW SOCIETY Dear Sirs, As President of the Middlesex Law Society I respond to the number of changes being proposed by the SRA in relation to MDP’s, Reporting Accountants PII and the compensation fund. These proposals radically effect our membership which consists of small firms and Sole Practitioners. The rules being put forward will, rather than liberate practitioners, put firms under enormous pressure and will have a destabilising effect especially at a time when there are recessionary pressures coupled with the reduction of Legal Aid. With regard to PII the proposals do not seem to be based on evidence or research and the findings of Chas Rivers 2010 appear to be completely ignored. In addition the consultation period of six weeks is far too short. There is no clear reason for why it is urgent to impose further changes on a regulatory system that has barely settled and making new policies is in my view easy compared with putting them into practice. The proposals for MDP’s on the other hand do not examine the impact in the market and the prejudice to non ABS firms.
In short the SRA proposes to:
current insurer pays for claims made against work done in earlier years. It is not clear what will happen where for example a claim is made by a lender, or a large charity or a commercial organisation or where the value of the claim exceeds £500,000 and the partners have been unwilling or unable to purchase top up cover and their own personal assets are exhausted.
reduce mandatory cover to £500k •
introduce a cap for insurers on the total amount payable in any one year and
•
abolish compulsory cover for claims from large commercial organisations
•
reduce compulsory run-off cover to three years following the end of practice
•
introduce a new regulatory requirement that each firm assess the level of PII
•
cover that is appropriate for its work.
•
implement the changes in early August for this year’s renewals.
The Middlesex Law Society is concerned that: 1
This will not reduce premiums by very much. The proposed minimum levels relate to the most expensive part of the premium.
2
If a firm decides that the minimum amounts are inadequate (certainly the case for any firm doing conveyancing, wills, personal injury and much commercial work), it will have to find other insurance on the market, either as a top-up or a standalone policy. This is likely to be much more expensive because there will not be the advantage of a bulk policy.
3
PII operates on a claims-made basis: when a claim is made the
4
Lenders will insist on cover to a much greater level than required by the new MTCs. Firms will have to seek this insurance on the market. It is likely to be expensive and there is no guarantee that it will be available to all firms who wish to purchase it. This will also provide lenders with further reasons to reduce panel sizes.
5
Other firms will have no way of knowing, when accepting an undertaking, whether the firm’s insurance will, in fact, cover it in the event of default.
6
The proposals on run-off cover are inadequate to cover the 40 per cent of claims that, on the SRA’s figures, arise more than three years after the event. Solicitors will either have to buy more cover or be personally liable for any claims. There is no evidence, however, that the market will provide a higher level of run-off cover – it is not a popular product with insurers.
7
Many solicitors are not used to assessing a reasonable amount of cover and will need assistance in the early years. It will be particularly difficult if, for example, one or more firms have been taken over in the past and an assessment has to be made in respect of potential claims arising from work carried out by those
continued
The Bill of Middlesex
5
introduction
firms. It is also hard to see how the cap will operate and how firms will reasonably estimate how many claims will be made in any one year. 8
9
The SRA has not disclosed how it will judge whether a firm has adequate cover but it will be looking at the situation with the benefit of hindsight. The SRA has proposes to introduce the new rules in October. We do not believe that the market is ready to develop suitable products in that time.
SRA consultation on Compensation Fund The SRA proposes are to limit eligibility for grants from the fund to: • individuals • a micro-enterprise – a business with a turnover not exceeding 2m • a charity with annual income less than £2m • a trustee of a trust with a net asset value less than £2m
The Middlesex Law Society recognises these arguments but is concerned that: 1
Invariably large institutions such as lenders and some large charities will assess the risk and decide the safest course is not to instruct sole practitioners/small firms and to seek to dissuade others from instructing them. This could mean that not only will sole practitioners/ small firms be removed from the lenders panels but also large charities will ask testators to use large firms to draft their wills/deal with probate matters.
2
It undermines the guarantee the profession makes to all clients.
3
The Law Society agrees that the way in which the compensation fund operates should be reviewed but that such a review should be of the whole system and evidence-based with adequate time for the profession to reflect and consider any such proposals.
SRA consultation on reporting accounting requirements The SRA proposes to: • remove the mandatory requirement that firms must submit an annual accountant’s report to the SRA • require compliance officers for finance and administration (COFAs) to sign a declaration they are satisfied that the firm is managing client account in accordance with the SRA Account Rules • retain the power to require firms that pose a higher risk to client money to have their accounts audited as part of supervisory, investigative or enforcement activity.The SRA argues that abolishing the requirement will: • save the SRA the costs of handling the reports • save firms the cost of commissioning the reports • place responsibility for ensuring financial probity with the firm
The Middlesex Law Society recognises these arguments but is concerned that: 1
6
The vast majority of COFAs will be unwilling to sign a declaration that they are satisfied that the firm is managing its client account in accordance with SRA Accounts Rules without the benefit of an accountants report. There is unlikely to be a significant saving to the profession.
2
Because of the complexities of the Accounts Rules a large proportion of accountants reports have to be qualified. It is unclear how COFAs would express such concerns in their declaration. In any event it is time that the Accounts Rules were reviewed and updated to ensure clients are protected but that the rules themselves are simplified.
3
Independent review of the accounts could be said to act as a deterrent and also to guard against disorganised practices.
4
The SRA will lose a valuable source of intelligence of serious failings. It is not clear how it will seek to gather such information given that the wrongdoer may also be the person who makes the relevant declaration.
SRA consultation on multi-disciplinary practices The SRA wishes to: • remove barriers to entry and to reduce regulatory burdens on entities seeking to enter the legal market and who require authorisation to carry out reserved legal activity • improve access to justice by supporting legal businesses to widen consumer choice by authorising different structures that can offer legal advice, particularly to SMEs. • review the Separate Business Rule in due course. The SRA proposes that non-reserved services carried out in an MDP would not be regulated by the SRA if: • they are not carried out or supervised by authorised persons • they are subject to suitable external regulation • clients are made aware that the activity is not SRA-regulated • the activity is not integral to the provision of reserved services The rule could apply only to ABS firms.
The Middlesex Law Society is concerned that: 1
If a firm is regulated by the SRA all legal work done by the firm should be regulated by it.
2
Consumers are unlikely to understand what is meant by different regulation and there will be difficulties over access to the Legal Ombudsman.
3
The SRA gives little help about the process for deciding whether other regulators are appropriate or how it will liaise with those regulators or settle differences of approach.
4
Different regulators may take different approaches for example to the standard of work required.
5
The arrangements will inevitably lead to different approaches to regulation and to competition problems.
6
There may be an incentive for firms to have as little work done by solicitors as possible.
7
Administering an estate is not seen as immediately ancillary to a grant of probate and therefore could be dealt with in a structure not regulated by the SRA.
8
There is no evidence that this will lead to greater access to justice - most small firms will regard dealing with two regulators as too difficult and the big firms are not likely to assist consumers or SMEs.
9
This will ensure that there will be different regulatory burdens and associated costs between some ABSs and traditional firms.
10 Either this will put pressure on larger firms to become ABSs or it will force change in the Separate Business Rule without proper consideration being given to how this will affect the profession, clients and the regulator and its income streams. Yours faithfully,
Gurmeet Kharaud President of the Middlesex Law Society
The Bill of Middlesex
local issues
The Winds of Change The 12 months before a general election are generally a period of uncertainty and expectation. In the case of legal services that could well summarise the last 12 years! That said there have been a spate of recent announcements that will affect the speed and direction of change. At the AGM of the Law Society in July Andrew Caplen became President – a post he will hold for the next twelve months. He is a legal aid lawyer and plans a major initiative on access to justice. As the government cutbacks are already causing delay and unintended cost there is clearly scope to push back in some areas. Desmond Hudson, who has been the chief executive at the Law Society since 2006 is retiring. He has been a fearless spokesperson for the profession and has been a tower of strength for the profession - bringing energy and passion at a time of continuing instability and relentless change. The SRA has appointed a new chief executive Paul Philip (from the GMC), replacing Antony Townsend. The SRA chair, Charles Plant retires and is to be replaced by Enid Rowlands a non-solicitor board member from the end of this year. Higher up the chain of authority the Legal Services Board is also ringing the changes. David Edmonds has made way for Sir Michael Pitt. Early indications are that he intends to continue down a path working to the expectation of the Lord Chancellor that the Legal Services Board should become redundant. There is a growing clamour for the idea what within 10 years the legal sector will have a single regulator. The place of the ‘profession’ in all this is open to debate. Regulatory bodies may well jockey for position as they dream of their future within an unitary body. Another voice in the implementation of the LSA since the inception
The Bill of Middlesex
of the Legal Services Board is its chief executive Chris Kenny, who is moving on from his role this autumn. Crispin Passmore is a new arrival at the SRA from the Legal Services Board and he is the architect of the programme of SRA reform with the declared purpose to improve ‘access to justice’ for consumers by simplifying regulation and promoting greater competition through more ABS and MDP’s. In the first wave of changes produced the SRA consulted on change to one aspect of the Solicitors’ Accounts Rules -namely the annual Accountant’s Client Account Report. SRA decided on 2 July at the present time not to abolish the rule requiring audit of client account. The majority of those responding to the consultation did not agree that this change could stand on its own. Earlier in June a relaxation was agreed for the payment of residual client account balances to charity for amounts up to £500. Some thought this was too large a sum to allow on an unqualified basis and more detail or guidance seems likely to follow when this change is introduced in the 11th edition of the handbook in October.
On 2 July SRA deferred other proposed changes to the handbook including the move to relax rules to curb regulation of an ABS where they engage in non reserved legal activity. This is to encourage the admission of Multi Disciplinary Practices ( MDP’s) to the market. Any change of this kind signals the start of a long expected debate about Separate Businesses and Chapter 12 of the SRA Code. The professional indemnity insurance changes were also deferred save for the reduction in the minimum compulsory layer of cover and this is subject to final decision by the LSB in August and discussed further in Compliance Corner. Rather than a period of quiet consolidation and improved efficiency with ‘business as usual’ it seems the new faces will inspire a further bout of reforms. This will no doubt be attractively packaged as ‘reducing regulatory burden’ but past experience suggests that simplification will indeed be a challenge to test the regulator’s skills. Michael Garson Council member
7
local issues
Council Member Report - July 2014
By Michael Garson michael.garson@kaganmoss.co.uk
The Council met on 9 July and morning of 10 July, with the Annual General Meeting (AGM) of the Law Society held in the afternoon on 10 July. The AGM saw the succession of Andrew Caplen (Hampshire) as President, and confirmation of Robert Bourns (City member - TLT) as the recently elected Deputy Vice President. It also saw the election and re-election of several Council members, including myself as Council Member for Central and South Middlesex.
Practice certificate Fee Council approved the budget for 2014/5 which is for the year from 1 October 2014 and a 17% reduction in the PC fee. The budget covers the Solicitors Regulation Authority, as regulator, the Law Society as professional representative body and Corporate Solutions which runs the shared services for the Group. The Legal Serviced Board this year required a wider consultation with the profession on its views of the level of the PC fee, and those who responded asked the fee to be minimised. Although Council agreed the papers recommending this the underlying cost of the change programmes requiring project spending through Corporate Solutions could well have
justified an increase. The SRA requirements for new investment in modernisation continue and financial controls within the Group remain far from ideal. The funding required for the budgets is £112m and the PC collection will be £105m. A deficit budget that draws on reserves has been set. Corporate Solutions pays the levies to the Legal Ombudsman Service and LSB towards the profession’s share of their running costs and so this budget is largest at £57m. The SRA direct costs are budgeted at £30m and Law society at £15m. Overall these figures are fluid as there is typically large budget underspend typically as IT projects are delayed where plans do not work. Council are critical but not in a position to take direct control of these matters and until the profession become more knowledgeable and vocal about the detail little change seems likely to be achieved. Council received a further gloomy report from the Audit Committee who urge improvement to internal controls. With further new appointments to the finance team it is hoped the next year will see an improvement. Council were assured that new software had now been successfully installed and was working. This has all sharpened attention around questions raised by the LSB as regards the operation of s51 of the Legal service Act 2007. This enables the Group to levy the profession for regulatory requirements in a wide reading of that term and there is expenditure across the Group that satisfies the test in the Act. The SRA spend qualifies of course as regulatory but other training support and educational work for the profession by the Society also qualifies under s51. Currently the LSB is targeted at changing the rule so that at some point in the future the representative body will have no share of the PC fee. At that point free services and lobbying work for members on law reform and other work for the profession will need to be privately funded. For this reason the Council has made it clear that the cost of the criminal legal aid action is funded out of profit from commercial activity and not from the PC fee. If s51 were to be ended then the shared services function would disappear and be replaced by investment by the regulator and by the representative body as separate entities. That is the direction of travel when another the Legal Services Act 2007 is revisited in the next parliament.
Compensation Fund The Compensation Fund levy is also reduced this year (£24) but members will recall the large increase last year to fund a spate of interventions; that fund has not been exhausted although SRA remain cautious as to possible threat of other large cost interventions that cannot be avoided. In the longer term SRA plans to exclude claims from commercial clients and institutions. It is not yet clear that the new PII limit of £500,000 would apply to grants by the Fund. A number of members and the Regulatory Affairs Board on which I sit remain concerned at the potential impact on market confidence in the profession as this does not appear to rank at all in the thinking of LSB or SRA.
8
The Bill of Middlesex
local issues Support for criminal law solicitors Council debated a request for financial support for a judicial review challenging aspects of the consultation process on the Transforming Legal Aid: Next Steps proposals. The focus of the claim is the process adopted by MOJ around the use of the KPMG report that was commissioned along with the Otterburn report to consider the appropriate number of duty contracts to award. The claim suggests the process unfair as the report was not released to proper consultation. Council recognising the concern of members at the Lord Chancellor’s decisions agreed that in it capacity as a representative body the Society should by offering to fund mediation to resolve the issues. Should mediation not succeed, Council agreed that the Law Society would provide financial support to enable the practitioner groups to proceed with the litigation, if permission is granted by the Court.
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.
The text of the Council motion was: That the Society, in the exercise of its representative function, should – 1. (a) By letter invite the claimants to propose mediation, with a stay of proceedings for that mediation, with the option that the Society be involved in that mediation; and (b) Offer to pay the claimants’ costs of that mediation up to a maximum of £30,000. 2. Provided that the Society’s mediation invitation is accepted by the claimants, and if the offer of the mediation is not agreed to by the government, or if the mediation takes place but is not successful, offer the claimants the sum of £45,000 in respect of their costs of the judicial review.
Regulation Council noted that the SRA had launched consultations on a wide-ranging programme of reform, involving significant changes to professional indemnity insurance, the Compensation Fund, accountants’ reports, and multi-disciplinary practices. The SRA wanted to implement the majority of these from October this year. The Council was happy to agree steps that reduce the regulatory burden, but had responded to proposals to express deep concerns about the proposals made and any attempt at tinkering piecemeal with the 2011 Code. Since the meeting direct representations were made to the SRA. On 2 July the SRA decided to put back all changes save for the new indemnity insurance minimum reduced from £2m to £500,000. This if finalised would be introduced for October along with a new duty on firms to consider their needs and requirement for insurance. This matter has not gone to the LSB for decision on 14 August and Council continues to lobby against the proposal which come far too late in the year and badly affects normal and current market operation.
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).
International As part of its work reducing barriers for members firms wishing to establish in key markets, the President was part of a delegation to Brazil; the Society held meetings with the Law Society of Kenya; and a round table was held on UK insolvency practices for policy makers from the Reserve Bank of India.
Member engagement The Chief Executive at his last meeting before retiring updated Council on initiatives by the Membership Board to improve member focus. As part of this, the communication campaign launching in the autumn, will be promoting the services of solicitors to the public, using the voices of members and their clients to lend authenticity to the message. The campaign will use social and digital media. The annual In-House Division conference took place as a joint event between the Junior Lawyers’ Division and the Women Lawyers’ Division on career progression. The Practice Advice Service answered over 3,500 calls between 14 April and 6 June 2014, and the Find a Solicitor service had responded to almost 12,000 calls.
Conveyancing Portal A joint venture with Mastek has now been signed and announced and work is under way to develop the Beta model for testing this autumn. The CQS standards will be adopted as the basis for a platform that will be offered as a whole market solution. As I am heavily committed to the success of this project I can give members more information.
The Bill of Middlesex
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).
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9
local issues
CILEx welcomes first Welsh woman president Frances Edwards is to become the 51st President of the Chartered Institute of Legal Executives (CILEx) later today at a ceremony in Cardiff City Hall. Originally from Newport she works for Caerphilly-based firm Caswell Jones as a legal aid lawyer specialising in family law. Mrs Edwards said of her new role: “It is such an honour to be elected not only as CILEx president but as the 10th female and first Welsh woman to be president. I am certainly taking office in interesting times. Many changes are taking place in the legal market not least the unacceptable changes to judicial review and reductions in the Legal Aid system.” She continued: “With impending practice rights and the recent launch of our paralegal enquiry, I am looking forward to leading CILEx through an exciting year, and supporting our members at a time when they and their firms face challenging circumstances.” The inauguration will be attended by many notable members of the Welsh legal profession, including Counsel General Theodore Huckle QC, and the Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd who will give the guest speech.
Frances Edwards wearing the CILEx President’s badge
Ahead of the event, Lord Thomas said: “I am delighted to see Frances Edwards inaugurated as President of CILEx. She exemplifies the hardwork and determination demonstrated by so many of the CILEx Fellows.”
He continued: “Chartered Legal Executives occupy an important place in the provision of legal services in this country, and recent appointments of CILEx Fellows to the judiciary are further testament to the excellent work which has been done by CILEx in recent years. I have every confidence that the Chartered Institute will continue to grow and flourish under her leadership.”
BIOGRAPHY: Frances joined CILEx in 1998 and qualified as a Fellow in 2000. Frances has been a CILEx Council Member for Wales since July 2008. She left school aged 16 with 6 O-levels but never wanted to go to university. Her first job was as a secretary in a solicitors’ office in Newport. Following a career break to raise her two children; daughter Sian and son Alun, she returned to work and spent the next 6 years studying at home to become a Chartered Legal Executive with ILEX Tutorial College, now CILEx Law School. Frances is currently employed by Caswell Jones Solicitors in Caerphilly where she has worked since 1995 as a member of the Family Team. She was one of the founder members of the CILEx South Wales Branch when it was relaunched in 2004, becoming treasurer. She was chair of the branch in 2005 and still remains actively involved. Frances was the first Chartered Legal Executive to be appointed president of a local Law Society when appointed president of Rhymney Valley Law Society in 2008/09.
Mundays builds team with new construction partner Cobham-based law firm Mundays has added to its property team with the hire of a new partner, Pippa Beesley, who specialises in non-contentious construction law. Pippa joins Mundays from DAC Beachcroft LLP, where she has been since 2005. Prior to this Pippa trained and qualified at Mayer Brown.
construction input on the drafting and negotiation of property and finance documentation.
which does great work in the region, nationally and abroad,” Pippa said, commenting on her appointment.
Acting for developers, purchasers, tenants, funders and contractors, Pippa specialises in dealing with construction documentation requirements from inception to settlement of non-contentious disputes and providing
Pippa will be looking to grow Mundays’ construction practice which offers a ‘one-stopshop’ for construction firms.
Valerie Toon, Managing Partner at Mundays, added: “We’re thrilled to welcome Pippa to the team and we’re looking forward to growing our construction practice with the help of her stellar expertise.”
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“I’m excited to join Mundays’ property team and further support the firm’s construction practice
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local issues
Enquiry into paralegal workforce to commence A Paralegal Enquiry is set to be launched by the Chartered Institute of Legal Executives (CILEx) which will answer whether paralegals can meet the market needs of the future. The Paralegal Enquiry, which will commence this autumn, is anticipated to deliver a holistic view of the future market context (regulated and unregulated) for legal services delivery from 2020. CILEx President Stephen Gowland said: “We hope this enquiry will make legal businesses aware of the ethical, regulatory, consumer and market issues of utilising paralegal talent, the skills and progression opportunities they will need, and ultimately inform business choices in the use of paralegals for the future. “With research indicating a 17% increase in medium-skilled business professionals within a decade, we want to know if this will be reflected in the paralegal workforce, and what opportunities and challenges the increased use of paralegals will bring. “CILEx is uniquely placed to lead this enquiry; as well as representing around 7,500 Chartered Legal Executives, we also represent 12,500 paralegals, the largest paralegal membership in the UK, and we’re the only body to independently regulate paralegals in the public interest. Paralegals have always been relied on
Stephen Gowland, CILEx President
to meet business needs and this will continue as the market faces both fresh and intractable challenges. We are hoping to hear from a broad range of voices in this enquiry, and I hope all those with a view will contribute.” CILEx will commission research which will be scoped and defined through a series of focus groups and roundtable discussions and will consider the characteristics of the legal workforce and employer attitudes towards the use of paralegals in future. Stakeholders, including legal businesses, training providers, journalists and professional and regulatory bodies, who would like to be involved in the Paralegal Enquiry, should register their interest by emailing: paralegal.enquiry@cilex.org.uk. The Paralegal Enquiry will be launched at an invitee-only event hosted by DWF on Thursday, 26 June. Find out more about the Paralegal Enquiry: www.cilex.org.uk/about_cilex/paralegal_ enquiry.aspx.
Middlesex Law Society (est. 1959)
APPLICATION FOR MEMBERSHIP Surname _______________________________________________________________________________________________________________ Mr / Mrs / Miss / Ms Forenames _______________________________________________________________________________________________________________________________ Name of Firm or Organisation ______________________________________________________________________________________________________________ Postal Address or DX no: __________________________________________________________________________________________________________________ Telephone ________________________________________________________________________________________________________________________________ Email ____________________________________________________________________________________________________________________________________ Status & Area of Work _______________________________________________ Date of Admission _____________________________________________________ Would you be interested in joining the Committee?
Yes/No
I wish to apply for FULL/FIRM/ACADEMIC/ASSOCIATE/STUDENT (YMG) membership of the Society (see below for details) I enclose herewith my cheque for £ _________ for the current year, made payable to "Middlesex Law Society" Signature ____________________________________________________________ Date _______________________________________________________________ Subscription Rates: Full Individual Membership:
£50.00 per annum (more than 3 years admission) £30.00 per annum (less than 3 years admission)
Firm Membership:
Partners/Solicitors 2-5 £125 per annum 6-10 £250 per annum more than 10 £500 per annum
Academic Law Departments:
£200 per annum
Associate Membership:
£15.00 per annum (Trainee Solicitors, ILEX members, Paralegals)
Students:
£5 per annum (Young Members Group)
Please return completed form and remittance to: The Membership Secretary, Middlesex Law Society, Susan Scott-Hunt, Middlesex University, The Burroughs, Hendon NW4 4BT
Tel: 020 8411 6019 e-mail: s.scott-hunt@mdx.ac.uk
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book review HERSHMAN & McFARLANE CHILDREN ACT HANDBOOK 2014/15 THE MOST UP TO DATE PORTABLE REFERENCE TO THE CHILDREN ACT An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers 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.
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.
By: The Hon Mr Justice McFarlane QC ISBN: 978 1 84661 983 0 Family Law/Jordan Publishing Limited www.jordanpublishing.co.uk
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 certainly save you time trawling though those multivolume 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.
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. 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.
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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. 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.
noise around the initiative may have indirectly encouraged a release of pent up demand that has been building for some years now. 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.
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 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. 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
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private client
COSMETIC LITIGATION: 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 non-surgical 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. 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. 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.
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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 non-surgical 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 it's 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 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
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private client
The tip of the iceberg 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.
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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
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private client
Russell-Cooke secures compensation for the family of a man who died after having a wart removed Dominic Fairclough, partner, Daniel O’Keeffe, associate, in the clinical negligence & personal injury team, successfully secured an award for the family of Lanzett Samuels, in a clinical negligence claim against his GP. Lanzett Samuels died after having a wart removed at the Whittington Hospital, prior to a planned holiday to Jamaica. The claim arose from a failure to refer Lanzett back to the Whittington Hospital, after attending as an emergency at the surgery in April 2008. It transpired that Lanzett had contracted necrotising fasciitis, a rare and very aggressive infection, often described as a “skin eating infection” due to its devastating impact. The day after attending the GP surgery, Lanzett’s family took him back to the Whittington Hospital, as his condition had deteriorated considerably. He was then diagnosed with necrotising fasciitis and underwent a skin debridement and blood transfusion. Sadly, after a turbulent course in the Whittington Hospital and then the Royal Free Hospital, Lanzett subsequently died in October 2008. Dominic Fairclough represented the family at the subsequent inquest, thereafter, pursuing a clinical negligence case against the GP. Liability was never conceded, albeit the parties’ experts agreed that if Lanzett Samuels had been referred back to the Whittington Hospital by the GP, he would have survived. Tragically, by the time he attended the Whittington Hospital, the following
day, the experts agreed he was no longer likely to survive. Lloyd Samuels, the son and administrator of the estate of Lanzett Samuels commented, “We hold life so precious and sincere, and place our life in the hands of these professional individuals. But when you are faced with a ‘brick wall ‘of silence and denial, your trust, integrity and faith in the NHS and GP are highly questionable. By reporting and highlighting the pain and suffering, that our family and my mum had to endure owing to the inexcusable and costly apathy of this doctor, and the lack of dignity when you are over 70 from several NHS hospitals that seem to ‘write you off’ because of your age; we hope to prevent any family having to suffer, the pain of losing a loved one from a minor operation. The dedication and professionalism shown by Daniel and Dominic at Russell-Cooke Solicitors,
allowed our family to overcome this painful five year search for truth and justice for our beloved father and brother Lanzett Samuels.” With a trial due to commence in June 2014, a negotiated settlement was achieved for the family. Daniel O’Keeffe commented: “This was an extremely tragic case. Despite the fact Lanzett had the misfortune to contract a rare and very dangerous infection, if the GP had taken a proper history and had given a proper examination, she would have referred him back to the Whittington Hospital and he could have made a full recovery. Sadly the next day it was too late.” He added: “The fact we represented the family at the inquest contributed very significantly to the outcome. As Dominic Fairclough was able to question the GP, this gave insight into the critical consultation. Sadly inquests are too often a missed opportunity to understand the cause of death, when families have no legal representation at the inquest. Having a solicitor there to ask the right questions can make all the difference.”
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professional issues
The Nine Characteristics of Successful Business Leaders and Entrepreneurs 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. Alan ran a workshop at a recent GGI conference in Scotland where extracts from the above presentation formed one of the key discussions.
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
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? 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 Self-esteem Is about confidence in your own ability or selfworth 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!
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Goal orientation has a number of meanings depending on how it is applied. It is generally defined as “demonstrating ones 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.
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professional issues
Compliance Corner On 26th June we held our fourth compliance event of the last 12 months. Many of us are feeling more comfortable than a year ago and have now advanced from a position where the concept and role of COLP and COFA were new and unexplored. The identification of ‘material’ and ‘non material’ breaches dominated our first sessions and remain a daily challenge as does the uncertainty of the scope and responsibility of the respective roles. Recent sessions have focussed on reviewing the frequent updates to the SRA Handbook and looking at situations that arise in the course of everyday practice. The issues are varied and typically include such problems as banking errors affecting client account, unidentified deposits and the demands of clients whose dealings trigger warning signs under anti money laundering rules. The speed of transactional work itself raises the number of events needing urgent attention if delay is to be avoided.
Many interesting and useful points have been discussed enabling members to share ideas for their practice methods. Managing relationships with the regulators was raised recently. Issues may arise in the course of investigations by SRA or LeO following response to requirements to share client information. In dealings with regulators serious consideration must be given to any potential breach of confidentiality. Whilst there is a duty to cooperate with regulators it seems advisable to request assurances as to confidentiality and remind those dealing with cases of the reliance placed upon their retention and protection of information. It is not possible to predict the reaction of clients to misuse of information given to the regulators. Our June meeting was a little different with an agenda dominated by the SRA May consultations with proposals for changes to professional indemnity insurance. Although this
is a specialised subject it is a matter that will affect the work of everyone in the profession, whether as manager or partner in a firm or as an employed solicitor or trainee. After all, every employee would expect their work to be insured for negligence through their employer and not to be without insurance protection if held liable to clients for honest mistakes. Under the SRA proposals no employee may take it for granted that their employer does hold sufficient effective cover at all times. Our meeting was led by Michael Silcock and Toby King representing JLT Specialty Ltd who sponsored the Middlesex Society for the event. JLT are long established and reputed global insurance brokers. They like other brokers were surprised by the proposals. Like other brokers they told us they were taken by surprise by the May proposals and were not consulted by the SRA before the details were published to the
market. They expressed many views which reinforced our own but in addition suggested there is no certainty that all insurers currently in the market will respond as SRA might assume in the short time before the October renewal date. On balance they did not believe that premiums payable would be much reduced if cover came down from the current minimum of £2m. They along with everyone else in the market are aware that most claims fall within the first £500,000 and that the premium is priced accordingly. Referring to research carried out 5 years ago it appears also that a proportion of claims (over one fifth) would exceed the new suggested minimum. The SRA rationale for the changes is to reduce the burden and cost for solicitors and to improve competitiveness in the market place; they do not regard it as paramount that clients should be automatically protected up to £2m. In the event the SRA board decided on 2 July in the face of strong contrary views to defer the bulk of the proposals this year and to proceed only for the October 2014 renewal with a reduction in the minimum cover required under the Minimum Terms and Conditions (MTC). This avoids other complex questions on capping multiple claims but leaves others that still need to be dealt with. A reduced sum insured is incentive for insurers to try to aggregate claims as whereas series of claims arises there may be some element that looks as if it is a common thread. It is of further and immediate concern that this de-regulatory measure is accompanied by a new and onerous duty which will be added as an outcome in the Handbook that firms must assess their need for cover and obtain adequate insurance. On the basis that the minimum sum is to be reduced from £2m that will mean that most solicitors will be depending upon some form of unregulated top-up insurance. Top up policies vary and as JLT pointed out are unlikely to be written on the same terms as the MTC; most importantly where brokers are asked to advise as to the amount that would be suitable for cover, this is regulated work for
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professional issues
DX launches eDX – a game changer in encryption services
which they would have to comply with their own regulatory requirements and charge fees accordingly. JLT offered the view that some brokers will not wish to incur costs and risk if offering ‘advice’ on the most suitable amount and type of cover and this may leave some small firms without access to advice. Although at first blush it may appear easy for a firm to assess its potential exposure to claims in any year without wider claims data it is hard to do this with any confidence or expertise. It is even harder to see how any established firm that has at any time itself (or through any predecessor firm) practised outside of very low risk areas might take the risk of reducing from the current level of cover. In arriving at its decision SRA relied upon benefits from premiums reducing by between 5 15%. One insurer had confirmed its intention to reduce by 5% but clearly that benefit may be swiftly offset by the premium for top up cover. There are other changes deferred or not considered that would be more likely to limit insurer exposure and reduce premiums. JLT along with responses from many local law societies, including Middlesex Law Society questioned why other changes to the minimum terms and conditions have not been considered. These have been the subject of a detailed study in 2010 and were not debated in the consultation. There are many provisions in the MTC which are expensive to underwrite. The Irish Law Society responded to the financial crash and high claims by radical alteration to their policy cover (which was the same as ours) some only on a temporary basis. They did, however, alter fundamentally certain conditions and that has not resulted so far in claims that have left solicitors exposed. Also deferred is whether to reduce compulsory run-off cover from 6 years to three. This proposal could leave the profession to deal with the fallout should retired solicitors be unable to meet a claim. Research suggests that 43% of claims do not arise in the first three years after closure. It is interesting to note that in Ireland a new fund has been started to insure retired solicitors and though it is in its early stages this may provide a model for the future. The Legal Services Board meets on 14 August to approve the SRA proposals and by the time this article is published we will know the final decision. It would be odd for the LSB to close its eyes to the criticisms of the proposals made by its own Consumer Panel, which in many ways were similar to our own, but it may simply nod through the decision of the SRA as frontline regulator. If it does the chickens will surely come home to roost though long after the decision takers have departed from post. Michael Garson
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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-toend 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.
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 marketleading 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.”
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
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professional issues
Don’t let your Hot Dog burn 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 over-heating. 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.
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.
•
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.
Dogs Trust vets have issued the following advice to pet owners and concerned animal lovers: •
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 are having a barbecue keep items such as matches, lighter fluid, candles and leftover bones out of harm’s way.
•
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.
•
•
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!
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 countermeasures 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.
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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.
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professional issues
SRA Consultation on Solicitors PII –
a broker’s view from Janine Parker of Paragon Insurance Brokers
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. 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
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certain we would no longer see the low levels of pricing and wide levels of coverage that firms currently enjoy. 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.
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young members’ group
The Dos and Don’ts of CV writing In the last edition of the Bill of Middlesex, I introduced myself and I explained what the Young Members Group aims to achieve in the near future. For those who have not had a chance to read the article, I am Laura Gusatu (formerly Vircan), currently a Trainee Solicitor at Desor & Co Solicitors. In my capacity as the YMG secretary, I hope to engage students and Law graduates in various activities organised by the YMG which are aimed at giving them opportunities to network with other legal professional and gain relevant work experience. I am pleased to announce that two students from the University of West London have already benefitted from the activities organised by the YMG. Nabia and Stephen interviewed two legal professionals and successfully completed the task, demonstrating their abilities to work efficiently under pressure. Their interviews were published in the last edition of the Bill of Middlesex.
religiously believed to be a “must have”). A cover letter allows the employer to ascertain your writing and drafting skills. Every employer will appreciate that you have taken the time to prepare a cover letter which adds weight to your CV, particularly when your work experience is not too relevant to the position you apply for.
I promised students that I would keep them updated with regards to various tips on drafting CVs and preparing for interviews. I have recently been on the other side of the CV scrutinising process and I wish to offer my personal view on the DOs and DON’Ts when drafting your CV.
I came across one CV that did not contain the candidate’s phone number. Unless your CV is outstanding and you seem the perfect candidate, employers are unlikely to take the time to go through your email to find your phone number. Make sure that all your contact information (address, telephone number and email address) are readily available on the front page of your CV, under your name.
I remember the days when I used to make application upon application for everything from vacation placements to training contracts. It was not that long ago, so not much has changed since. The field remains incredibly competitive today and the reality is that in most cases your CV is going to make the difference between being invited for an interview and not being considered at all for the relevant position.
1. The cover letter I was surprised to see that some of the CVs received by the firm for a paralegal position recently contained no cover letter (contrary to what I
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2. The contact information
3. The introductory paragraph I have lost track of how many times I have seen the “Career Objective” paragraph beginning with the typical “I am a proactive and hardworking individual”. Needless to say, originality will get you noticed. The personality description/ career objective paragraph in your CV is important, but make your CV stand out by making it more personal to you, as opposed to what looks like a ‘copy and paste’ exercise.
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young members’ group 4. Spelling and grammar It goes without saying that spelling and grammar mistakes are a no-no in your CV. Remember, your writing skills are vital in the legal profession and spelling or grammar mistakes will immediately discourage employers from inviting you for an interview.
5. Presentation You will have to ensure that your CV is concise and easily scannable. Steer away from long sentences and paragraphs because it is very likely that no employer will spend more than a minute or two going through your CV. Make sure that your work experience stands out and, if you do not have experience in the field, make sure you format your CV so that any transferrable skills that you may have acquired are clearly visible. Keep your CV clear by sticking to the same font throughout and use subheadings accordingly. I would also suggest that your CV is no longer than two A4 pages, but please do not use fonts smaller than 11. The work experience and education sections should be structured chronologically, beginning with the most recent job or study. Try not to make your CV too concise either. Even if your work experience is not in the legal field, simply listing the name of your previous employer and your job title will not assist you much. Try to expand on what your role was as well as the skills you gained whilst working there.
or, if this is not the case, be honest and explain that you simply failed to prioritise your studies but perhaps realised that you had a lot to lose by acting irresponsibly.
7. Update your references Make sure your references are up to date and that you inform your referees that you intend to make applications so that they expect a phone call. It is sometimes better to list your references in your CV rather than state ‘References available upon request’. It will show the reader that you are confident about employers contacting your referee.
8. Don’t make the application process a standard process It is very important to ensure that you tailor your cover letter according to the firm you apply to. There is nothing more irritating than reading a cover letter expressing enthusiasm at working for another firm or at working in areas that the firm does not practice.
9. Interests Always say you like reading :). Just kidding! Your interests may be more important than you think, but please do not exaggerate in this section. Ensure that you are able to expand on the hobbies and interests that you list in this section in the event that the interviewer has similar interests.
6. List your grades in the education section
10. Don’t forget to list your language skills
One of the main criteria for assessing your potential are your grades. I was surprised to see that some CVs did not state the grades obtained during the Law degree. Upon making enquiries with the respective candidates, it turned out that their grades were 2.2 and below, so they omitted them from their CV.
It is important that, along with other key skills, you list your language skills very clearly in your CV and confirm whether these are at a basic, conversational or advanced level.
In the event that you are in a similar situation, do not make the same mistake of omitting the grades from the CV but explain in the cover letter whether your performance was affected by any mitigating circumstances
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I hope you have found this article useful. In the next edition of the Bill, I will explore some aspects of the interviewing process. If you wish to contact me, please do so by emailing me at laura@desorandco.co.uk and I will happily answer any queries that you may have.
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employment law
Constructive Dismissal – Resignation or Affirmation? This article looks at the recent decision of the Employment Appeal Tribunal (EAT) in the case of Cockram v Air Products PLC UKEAT/0038/14/LA in relation to s95(1)(c) of the Employment Rights Act 1996 (ERA 1996) and whether, in circumstances where an employee resigns giving notice that exceeds the contractual minimum period of notice, the common law concept of affirmation has any applicability in the context of post resignation employment. For example, the notice period to be given by employee X to employer Y is 3 months under the contract of employment. X elects to resign, alleging constructive dismissal, by giving Y notice of his resignation, which is for a period longer than that required under the said contract. Question: is X entitled to claim constructive dismissal or, as he gave Y notice in excess of that required under the contract, has X simply affirmed the contract?
Cockram This interesting and important question was considered by the EAT in Cockram. In this case the claimant’s contract of employment required him to give 3 months’ notice to terminate his employment. He had raised a grievance, which, following an appeal, was dismissed. In consequence, he resigned, alleging, amongst other things, that the conduct of his employer was wholly unacceptable and was so serious that he did not believe he could carry on. He believed the employer to be in fundamental breach of its values and stated code of conduct, resulting in his trust and confidence and future with the employer being destroyed. Rather than give just the requisite 3 months’ notice to terminate his employment he elected to give a notice of 7 months instead. He subsequently presented a complaint to the Employment Tribunal (ET), alleging he had been constructively unfairly dismissed. However, the ET struck out his complaint on the grounds that it had no reasonable prospect of success, as it found that he had affirmed the contract by giving the 7 months’ notice in place of the contractual 3 months.
The Law The common law position is straightforward. Generally, if employees are of the view that their employers have fundamentally breached their contracts of employment they must resign, in consequence, without delay. A failure to do so leaves employees exposed to (inadvertently or otherwise) affirming their contracts. This is clearly at odds, in part, with s95(1)(c) of the ERA 1996 that gives aggrieved employees the right to elect to resign ‘with or without notice’. Put bluntly, employee X to whom I referred in the opening would almost certainly fail in his complaint under common law principles. The question is whether his complaint would also be defeated by the statutory provisions of s95(1)(c) of the ERA 1996?
Ryan Clement is a practising barrister at Conference Chambers
with all cases where the issue is one of alleged unfair dismissal the arbiter is to consider all the circumstances of the case, which, in a case alleging constructive dismissal, would be, amongst other things, both the length of the notice given by an employee and the reasons given for the length of notice.
Indefinite notice period?
Variation of common law contractual principles
In Cockram the claimant argued that, in relation to s95(1)(c) of the ERA 1996, there should be no limit on the period of notice given by an employee. However, the EAT rejected this proposition by stating, amongst other things, “such an approach would lead to the position that an employee could give many years’ notice irrespective of the contractual notice provision, while retaining the right to claim constructive unfair dismissal. This cannot have been intended.”
As the EAT confirmed in Cockram it was common ground that s95(1)(c) of the ERA 1996 varies the common law contractual principles for the purposes of a complaint of unfair dismissal by giving employees the right to resign on notice without being treated as their having affirmed their contracts. However, the EAT went on to examine the extent of that variation. It is important to note that one does not first turn one’s attention to whether there has been an affirmation. The starting position, as referred to by the EAT is, “As Jacob L J said in Buckland ‘the law looks carefully at the facts before deciding whether there has really been an affirmation.’” Similarly, is the position when a complaint of constructive unfair dismissal and the issue of affirmation are to be determined. As
The appeal in Cockram was dismissed. In relation to a complaint under s95(1)(c) of the ERA 1996 an employee must resign, with or without notice, without delay. Any such delay could result in the contract being affirmed. Of course, for the avoidance of any doubt, were such a situation to arise, it would be in the parties’ best interest to seek clarification of the employer/employee position. However, this approach is unlikely to be taken in practice. In consequence, as such matters are brought to the lawyers’ attention only after the employer/employee relations have soured and complaints have been presented to the ET. Sadly, therefore, one is likely to be dealing with the cure rather than the prevention in any case.
Conclusion
Positive Discrimination in the Cabinet? Helena Woodward-Vukcevic, Employment Solicitor at law firm Hart Brown, comments on latest reshuffle in relation to the Equality Act The headlines are dominated with the much anticipated news of the latest cabinet reshuffle and more specifically the likelihood of more women being promoted to top roles in government. This comes ahead of the general election and a strategy thought to make the conservative party appear more appealing to voters. David
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Cameron has perhaps decided that positive discrimination ought to be applied in his reshuffle. The terms used on the BBC were; out with the “old, pale, and stale” and that it was “not a good day” in cabinet if you were white, male, and middle aged. However, treating one person more favourably
than another because they have a protected characteristic (which includes sex) is permitted under the Equality Act 2010, where an occupational requirement applies. The Equality Act contains provisions permitting lawful “positive action” to apply where a group of people sharing a protected characteristic, such as their sex, are disproportionately underrepresented.
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employment law
Flexible working for all? Up to the 30th June 2014, employers had an obligation to consider flexible working for employees with caring responsibilities. From 30th June 2014 the law will change, to extend the right to make flexible working requests to all employees. Until 30th June, the change in normal working hours could be to the number of hours worked, or to the start and end time, or allowing some work to be carried out at home. The definition of ‘carers’ includes parents of school age children, but also those who care for disabled relatives, spouses, or elderly parents. The change from having to consider child care responsibilities to wider considerations has taken place gradually. But the employer was only required to ‘consider’ the request. The employer could reasonably refuse to grant any flexible working request if it would result in a detrimental effect on the business, including incurring additional costs, have a negative impact on the quality of service or performance, an inability to meet customer demands, or result in insufficient work for the new hours the employee wants to work. An employer only had to demonstrate that he had taken the request seriously and met with the employee to discuss the situation and permitted an appeal against that decision, before deciding that part time working was really not appropriate for his particular business. Employers also had to treat every application the same- it would be difficult to justify granting part time flexible working to one employee whilst declining it to another. The obligation to treat all employees’ requests for flexible working had to be taken seriously, not least because of the implications of a refusal. If an employee felt he had been unfairly treated and believed the employer’s refusal was unreasonable then an application may be made
It has been well documented for some time now that far too many of those in government are still drawn from too narrow a background. An overwhelming number are white, male and Oxbridge. There are currently two positive action provisions in the Equality Act 2010:
Positive action in recruitment and promotion This came into effect on 6 April 2011 and applies where an employer reasonably thinks that persons with a particular protected characteristic
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to the Employment Tribunals within 3 months of the date he was told that the appeal had been declined. However, from 30th June 2014 the law changes to extend the right to make flexible working requests to all employees. This extends the right to request flexible working to employees who do not have primary caring responsibilities In future any employee will be able to make a flexible working request. For example relatives who are not the main carers in the family, could also apply for flexible working, and others may prefer to miss the rush hour traffic by starting work an hour later, and perhaps working an hour later. Working from home would accommodate many employees who would otherwise face a long commute, or perhaps ease older employees into a phased retirement. There are also changes to the way in which applications are dealt with. Previously regulations set out a specific method for dealing with requests. These no longer exist. Instead the application has to be dealt with in a “reasonable” manner, and the employee has to receive the decision within 3 months, but this can be extended by agreement between the employer and the employee. The extension can be agreed either before or at the end of the initial 3 month decision period. There is now no automatic right to an appeal. However the employer can allow an appeal, indeed more than one appeal.
are disadvantaged or that their participation in an activity is disproportionately low. In those circumstances, the employer can treat a person with the relevant characteristic more favourably than others in recruitment or promotion, as long as the person with the relevant characteristic is “as qualified as” those others and the employer does not have a policy of treating such people more favourably.
General positive action (section 158) General positive action can apply where an employer reasonably thinks that persons with a particular protected characteristic are
Any failure to attend meetings (without good reason) will result in the application being treated as withdrawn. The employer must then write to the employee explaining why the request for flexible working has been withdrawn. An application can be made to an Employment Tribunal within 3 months of receiving the decision, if the employer fails to deal with the request reasonably, or fails to notify the employee within the decision period. (The employer has to consider the same grounds for refusal as previously, ranging from costs burdens, negative impact on customers, quality of service, proposed restructure and work availability). It is recommended that employers provide a flexible working policy setting out the right to request flexible working, and the procedure to be followed when a request is made. Whilst any changes can be viewed as potentially problematic, many employees may find a more relaxed approach to their working hours in the office beneficial. It may suit some employers, whilst others may find it totally impracticable, with negative implications on cost and the provision of a quality service. Providing requests are taken seriously, and a fair process is undertaken, with employers willing to consider flexibility in their approach and the working practices, there is no reason why a new way of working could not result in a more productive and happier work force. Liz Whitehead, Hart Brown
disadvantaged, or that their participation in an activity is disproportionately low. In those circumstances, the employer can take proportionate measures to enable or encourage persons with the relevant characteristic to overcome that disadvantage, or to enable or encourage their increased participation. Employers are not obliged to take positive action under the Act, however, public sector employers may have a duty to consider it under the public sector single equality duty. As a result we may see far more women in cabinet.
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film
FILM and the LAW No 24
The Film Belle, the Slave Trade & the Law Every brick in Bristol & Liverpool is bathed in slave’s blood
By Vincent McGrath vmfilmnite@googlemail.com 020 8579 5330 07877 551442
You can wait for a film about the slave trade for years and then suddenly two come along together. I am talking of course about 12 YEARS A SLAVE directed by former Ealing resident Steve McQueen and BELLE directed by yet another British female director Amma Asante who joins an expanding cadre of highly talented young women taking the British film industry by storm.
The enigmatic Portrait formally at Kenwood House now at Scone Palace. 12 YEARS A SLAVE is based upon a book whilst BELLE is based upon and inspired by a painting that once hung in Kenwood Palace. I suspect most of you given the publicity surrounding the Oscars will be familiar with the story of 12 YEARS A SLAVE. It can be summarised as a black free man being illegally kidnapped by white bounty hunters and sold back into slavery and the man’s subsequent struggle to regain his freedom. An excellent film that fully warranted its international acclaim. Belle’s scriptwriter, Misan Sagay, whose ancestry is Nigerian was drawn to the painting mentioned above that originally hung in Kenwood palace and is now to be found in Scone Palace in Scotland. The double portrait is of an elegantly dressed aristocratic white girl sitting in the luxurious grounds of Kenwood with the distinctive dome of St Paul’s in the background. But our attention is immediately drawn to the other figure, an equally elegantly dressed woman, but a woman of colour who is wearing a turban and carrying a basket of fruit who stands behind the aristocrat, and takes up an almost equal amount of space. It is a painting that throws up a myriad of questions, most of which will probably remain unanswered, especially as we don’t even know the name of the artist. But what struck Misan Sagay was that the painting was simply captioned, “Portrait of the Lady Elizabeth Murray circa 1778” - so here was a black woman being almost comically written out of history. Even the heirs at the time assumed it was Elizabeth and a maid which was crazy given the prominence of the black figure in the portrait. The second time Sagay studied the portrait at Scone the caption had been amended to, “Lady Elizabeth Murray and Dido, the Housekeeper’s daughter”. Sagay started to research her subject and was given free access to the Mansfield family papers which enabled her to tease out the main elements of the story. The father of the black woman – known as Dido Elizabeth Belle – was a seafaring captain from an aristocratic family and the mother was a slave called Maria. The child was transported to England to be brought up in the stately home, Kenwood of the captain’s uncle and aunt who were childless, in the company of another niece from a different strand of the family – the other girl in the picture who is, indeed, Lady Elizabeth Murray. To add to the spice, the uncle into whose care the black girl was placed was none other than the lord chief justice of England, Lord Mansfield at a time when critical cases were going through the courts to do with the slave trade. The Slave Trade essentially consisted of specially designed ships sailing mainly from Liverpool and Bristol for West Africa where their cargo of manufactured goods such as trinkets and guns were exchanged for kidnapped Africans who were then loaded head to toe aboard the same ships which in turn headed for the West Indies. Those Africans that survived this horrendous voyage, known as the Middle Passage, were either sold to plantation owners or exchanged for sugar, rum or tobacco three destructive drugs that are still with us.
Steve McQueen's Oscar Winner.
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Whilst the film BELLE is mainly about the unique life of the daughter of a slave living the life of an aristocrat, there is a strong sub-text of how the slave trade brought wealth to ship builders, the aristocracy and plantation owners. In a way BELLE is a more radical analysis of the times than 12 YEARS A SLAVE in that it is apparent that the prosperity of the country could be directly attributed
The Bill of Middlesex
film
to the trade. Ancillary institutions such as Finance Commerce Insurance and the Law, saw a huge influx of activity that enabled household names to build the foundations of their future spheres of influence. Dido was in the language of the day, a mulatto. In the Caribbean, there was a strict classification of children from mixed relationships – a mulatto was a white and black pairing – and this classification was entered on all birth registers. Mixed race children in the Caribbean were commonplace and attitudes towards them very relaxed. Dido’s father could quite easily have set up mother and child in relative comfort and left them there – indeed it is quite remarkable that he made the decision to bring the child to England. In England admitting to a black illegitimate child did risk censure. And of course what makes his decision all the more remarkable is that the man he entrusted his daughter to was one of the most powerful & famous in the land - Lord Mansfield, the lord Chief Justice. Mansfield was modernising both English law and the English court system and making rulings that changed English and Commonwealth nations forever as well as being a strong influence on the laws of the United States. Coupled with that as an MP, Mansfield was a free trader and opposed a bill that would have forbidden the insuring of enemy warships in wartime. A man clearly not without his contradictions! continued
Belle: Gugu Mbatha-Raw as Dido & Sarah Gadon as Elizabeth.
Game changer Lord Chief Justice Mansfield.
The Bill of Middlesex
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film understood the impact of the decision - it marked the beginning of the end. If there was no slavery in England, then the freedom would in time have to be extended to English ships and ultimately to the colonies. And then came another case – and this is the one the film centres on because it is much more dramatic. The Zong Massacre. In 1783 a slaver the ZONG was carrying 442 slaves from Ghana to Jamaica. The ship was owned by a Liverpool syndicate who had taken out insurance both on the vessel and the goods valuing the slaves at £30.00 per head. The ship was overloaded and missed its destination. Water supplies were dwindling and disease breaking out. The captain decided to jettison 142 slaves, and later the syndicate decided to make an insurance claim. It is important to note that had the slaves died on shore of natural causes or disease or lack of drinking water then they would not have been covered by the policy . Everything rested on whether or not the captain had jettisoned the cargo as a matter of necessity – “perils of the sea” as it is known. In other words, for the court to find for the syndicate it had to accept that the slaves were sacrificed in order to save the rest of the cargo and the ship itself. The jury found in favour of the syndicate with the result that the insurers were liable. The celebrated abolitionist Granville Sharp, however, refused to accept the judgement, and eventually the matter came before Lord Mansfield to review the evidence. There were applications for a retrial and allegations of murder. There was no retrial, with the insurers withdrawing their claim and no one stood trial for murder. But revulsion had by now spread across the country and Sharp was once again a hero. He continued his battle for black freedom and eventually slavery was abolished in 1833.
A plan of a Slave Ship. Amongst many cases involving slaves coming before the courts around this time was the case of Somerset, which involved a slave, James Somerset, who had fled from his master in London, recaptured and then sold on to a slaver bound for the West Indies. Amongst many questions thrown up by the case, the question of whether Somerset was property or a person occupied a lot of the courts’s time. Mansfield was on the horns of a dilemma. On the one hand, the Somerset side argued that it didn’t matter whether slavery existed in England or not, because if it did then it should be abolished, whilst the slavers argued that releasing 14,000 slaves would cause chaos. If Mansfield ruled in favour of the slavers it would be establishing a species of slavery, hitherto unknown in England, and abhorrent to the free constitution of the country. On the other hand, if he ruled in favour of Somerset it would be detrimental to the plantations abroad, and to England’s economy. And all the while that the Lord Chief Justice deliberated, he was facing his much loved Dido across the dinner table. It would clearly be unbearable if he was responsible for a law that put her future in so much jeopardy. Eventually after months of speculation, Mansfield ruled in favour of Somerset describing slavery in his summing up as odious. The press reported that Mansfield had outlawed slavery in England which was not strictly true – what his ruling did was prevent masters from forcibly removing slaves from the country against their wishes. But it wasn’t just the press. Both sides of the argument did indeed take the ruling as an outlawing of slavery in England. We will never know whether Mansfield’s decision was affected by the presence of Dido at Kenwood, as many on the side of slavery contended. He might well have feared that his much- loved child could be abducted in London and sold on into West Indian slavery. Gossip about his black ward was certainly rife amongst the enemies he had now made. They fully
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Now in all this Mansfield comes over as a man completely mindful of his responsibilities to his country and to the law. He might have drawn back from making definitive rulings against slavery, but he also never ruled in favour of the slavers, a clear case of moving the goalposts in the right direction, caught in the film by the wonderful speech by Lady Mansfield. Whether his sympathies were effected by his love for his black niece, we will never know, but surely it must have had some effect . Also, it is right to say, whether he liked it or not, Mansfield became a key figure in the ending of the British slave trade. And what of Dido? Upon the death of her father, she is described in the London Chronicle Obituary as a “mulatto who has been brought up in Lord Mansfield’s family almost from her infancy and whose amiable disposition and accomplishments have earned her the highest respect from all his Lordship’s relations and visitants”. She marries John Davinier a French servant who in the film stands for Granville Sharp, and they had four children. She died in her early 40’s in 1804 and was buried at St George’s overspill burial ground in the Bayswater Road. When Dido’s grave was moved in the 1970’s due to redevelopment to a location now unknown, she was all but forgotten. And that might well have been the case had the Kenwood portrait never been commissioned. As a footnote it is worth recording that University College London is currently unearthing documentation that will eventually prove a great embarrassment to some if not all the Magic Circle group of city solicitors. So far researcher Nick Draper has been able to show that James William Freshfield, the founder of Freshfields, and his sons regularly acted for slave owning clients. It would make sense if the remaining circle members were to do the decent thing and put in the public domain all their records if they are still in existence. We like to think we live in a transparent society, and so it is only right that the public is made aware of all the institutions that have been enriched by slavery. Such institutions should they have a corporate conscience may wish to consider the question of reparation particularly at a time when the legal aid system which has always provided legal services for the poor and the oppressed, is being systematically dismantled by the powers that be. BELLE proved to be such an interesting choice of film that FILM NITE was able to attract two inspirational guest speakers namely executive producer Hilary Davies and film historian Richard Dacre. Hilary was able to tell the fascinating story of how, when she first read the script, she knew she had a winner and how upon the film’s completion she was able to take it to Hollywood and get suitable investment so that it could be screened more or less around the world. To add to that Richard undertook original research into how the film varied from the real life facts together with how the slave trade impinged upon England’s economy and the daily life of its people. It is interesting to note that whilst Jane Austen in her diary expressed a less than flattering view of Elizabeth, she at the same time managed to omit any mention of Dido. Now that is a mystery if there ever was one given that Elizabeth and Dido went everywhere together. Perhaps there is a clue in the fact that Jane Austen’s Mansfield Park came out 10 years after Dido’s death, and the plot is not a million miles different to that of Dido’s life.
Kenwood House.
The Bill of Middlesex
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