Wi n t e r I s s u e 2 0 1 5 / 2 0 1 6
SurreyLawyer THE VOICE OF SURREY SOLICITORS TEAM BUILDING, RAISING FUNDS FOR CHARITY AND HAVING LOTS OF FUN! (cover story)
Inside this issue: View our new website: www.thameswater-propertysearches.co.uk/SL
~ Cyber Terrorism ~ Clinical Negligence ~ Free Wills
2 Surrey Lawyer
Contents Intro PUBLISHER 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
4 5 7
Local Issues 6 -10
Local News Property
ADVERTISING AND FEATURES EDITOR Anna Woodhams
List of officers President’s Jottings CEO Report
11
Application and training overhaul set to speed up CQS applications
12 13
The ever changing world of costs The Fed finally gets it right!
STUDIO MANAGER Neil Lloyd
Finance
ACCOUNTS Joanne Casey
MEDIA No. 1399
Probate
PUBLISHED
14
December 2015 © The Surrey Law Society - Benham Publishing
News
LEGAL NOTICE
15
© 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.
DISCLAIMER The Surrey 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. COVER INFORMATION The cover image from: © Britannia Events Group
16 18 19
22 22 23
Email: Tel:
24
Email: Tel:
sueseakens@surreylawsociety.org.uk 01344 860830
SLS 2015-2016 CPD Programme Diary Dates Cyber Terrorism
25
Cybercrime: How well is your client data protected? Legacies Canine Care Card Queen Elizabeth’s Foundation for Disabled People (QEF) Round Table Children's Wish Legal News
30
Managing the Dark Side of Arbitration Family Law
31 31
anna@benhampublishing.com 0151 236 4141
Anyone wishing to submit editorial for publication in Surrey Lawyer please contact Sue Seakens, before copy deadline.
Free Wills Month is an opportunity for both solicitors and the public The importance of charitable legacies and how you can help Mind is the leading mental health charity in England and Wales Education
Copy Deadlines
Anyone wishing to advertise in Surrey Lawyer please contact Anna Woodhams before copy deadline.
Brain Injury Clinical Negligence Common Problems in Cosmetic Surgery Clinical Negligence Litigation Costs Reforms Free Wills
28 29 29
27th February 5th June 21st August 12th December
Set Your Sails and Sights on the Legal Cup Clinical Negligence
Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.
Spring 2016 Issue Summer 2016 Issue Autumn 2016 Issue Winter 2016 Issue
Probate: Doing the work Profitably
Same sex parents access rights to their child - is clarification around the corner? Autism & the urgent need for Advocacy Support Management
32 33 34
A Best-of-Breed Document Management Solutions Managing partner performance and reward 7 Steps to Growing Your Fee Income
Surrey Lawyer 3
Officers PRESIDENT
COMMITTEE MEMBERS
LAW SOCIETY COUNCIL MEMBERS
DANIEL CHURCH
SUSHILA ABRAHAM
SUSHILA ABRAHAM S Abraham Solicitors 290A Ewell Road, Surbiton KT6 7AQ Tel: 020 8390 0044 Email: office@sabrahamsolicitors.co.uk
S Abraham Solicitors
TWM Solicitors LLP.
290A Ewell Road, Surbiton KT6 7AQ
65 Woodbridge Road, Guildford GU1 4RD
Tel: 020 8390 0044
DX 2408 Guildford 1
Email: office@sabrahamsolicitors.co.uk
JOHN PERRY
Tel: 01483 752700
MAREK BEDNARCZYK
Palmers Solicitors
Fax: 01483 752899
Hart Brown
89-91 Clarence Street
Email: daniel.church@twmsolicitors.com
Resolution House, Riverview,
Kingston upon Thames, KT1 1QY
Walnut Tree Close, Guildford, GU1 4UX
DX 31524 Kingston upon Thames
DX 2403 Guildford 1
Tel: 020 8549 7444
VICE PRESIDENT
Tel: 01483 887704
Fax: 020 8547 2117
MARK GOUGH
Fax: 01483 887758
Email: john.perry@palmerssolicitors.co.uk
Email: msb@hartbrown.co.uk Solicitor
CHIEF EXECUTIVE & MAGAZINE EDITOR
22 Woodlands Road, Little Bookham, Surrey KT23 4HF
WIN CUMMINS
Sue Seakens
18 Station Approach, Virginia Water GU25 4DW
Surrey Law Society
DX 94652 Virginia Water
18 Station Approach, Virginia Water GU25 4DW
Tel: 01372 230786
Web: www.surreylawsociety.org.uk
Email: mark@markgoughlaw.com
DX 94652 Virginia Water
GLORIA MCDERMOTT 18 Station Approach, Virginia Water GU25 4DW DX 94652 Virginia Water
HON SECRETARY
Tel: 01344 860830 Fax: 01344 428511 Email: sueseakens@surreylawsociety.org.uk
Email: gloria.mcdermott@virginmedia.com
KIERAN BOWE Russell-Cooke Solicitors Bishops Palace House, Kingston Bridge,
JULIE ROWE
SUB COMMITTEES
Russell-Cooke Solicitors
QUO VADIS (Strategic Planning)
Bishops Palace House, Kingston Bridge,
Daniel Church
Kingston upon Thames, Surrey, KT1 1QN
Kingston upon Thames, Surrey, KT1 1QN
Nick Ball
DX 31546 Kingston upon Thames
DX 31546 Kingston upon Thames Tel: 020 8541 2023
Tel: 020 8541 2041
Email: Julie.Rowe@russell-cooke.co.uk
Fax: 020 8541 2009
Marek Bednarczyk Mark Gough (Chair) CONVEYANCING & LAND LAW Win Cummins (Chair)
Email: kieran.bowe@russell-cooke.co.uk
HON TREASURER
JAMES SCOZZI
Gary Score*
1 Fetter Lane
Maralyn Hutchinson*
London EC4A 1BR
Matthew Truelove*
DX: 14 London Chancery Lane
FINANCIAL
NICK BALL
Tel: 020 3440 5506
Howell Jones Solicitors
Fax: 01923 219416
Kieran Bowe
Email: jscozzi@elitelawsolicitors.co.uk
Mark Gough
Surrey, KT1 2AF
IAN WILKINSON
SOCIAL
DX: 57715 Surbiton
The Castle Partnership
75 Surbiton Road, Kingston upon Thames,
Nick Ball (Chair)
Mark Gough (Chair)
2 Wey Court, Mary Road, Guildford,
Tel (Office): 020 8549 5186 Tel (Fax): 020 8549 3383 Email: nick.ball@howell-jones.com
Daniel Church Gloria McDermott
Surrey GU1 4QU
John Perry*
Tel: 01483 300905
Julie Rowe
Email: ian@castlepartnership.co.uk
*Non-Committee Member.
membership details Annual Subscriptions:
£85 per person, per year.
Corporate Subscriptions:
(20+ fee earners) £1,700 per year
Solicitor
(not in private practice) £55
Solicitor
(not practising) £30
Honorary Membership:
free
Associate Membership:
free - no voting rights
4 Surrey Lawyer
To apply for membership please contact: Sue Seakens, Chief Executive Surrey Law Society, 18 Station Approach, Virginia Water GU25 4DW Web: www.surreylawsociety.org.uk DX 94652 Virginia Water Email: sueseakens@surreylawsociety.org.uk Tel: 01344 860830
Editorial
President’s Jottings Winter 2016 It feels slightly surreal to be writing my first “President’s Jottings” given that it seems like only yesterday I was kindly asked to stand as Deputy Vice President. The two year lead up to taking up the role of President has flown by in haze of e-mails and committee meetings.
I
t was an honour to have been asked to stand as Deputy Vice in November 2013, especially considering that I had only been on the SLS committee for a short time. I was originally asked to come along as an observer by my managing partner at TWM Solicitors, Matthew Truelove. Worried about whether I would have enough time for my fledgling career, I was assured by Matthew that there wouldn’t be too much work involved - a point I will have to take up with him at a future date!
I have to thank the outgoing President, Sushila Abraham, for her work and support throughout her year of office. The role of a Vice President is to support the President by attending any events that they cannot make. Sushila’s commitment to SLS during her year can be outlined by the fact that I wasn’t required to attend any functions on her behalf. If I can show even half of the commitment shown by Sushila I will have had a good year. Before outlining my plans for the year, we have some sad news to convey. Three committee members retired at the AGM on November 26th, with Simon Kenny, Elizabeth Eyre and Ken Seakens all stepping down. In particular, Ken’s retirement will leave a huge hole in the committee. He has spent over 21 years with SLS, acting as President in 2000-2001. Given Ken’s status in the SLS I just hope that we can continue his good work and ensure the future health of the society. During my Presidential year I want to concentrate on ensuring that the SLS is communicating effectively with other local Law Societies, the National Law Society, the wider public and most importantly you, our members.
Improving communication in all of these areas can only result in an improved Surrey Law Society. If we can harvest your views on the profession locally and nationally, then we can act as a better link with the National Law Society. Recently the profession has come under attack with cuts to legal aid, increasing court fees and court closures. In my practice area we have recently seen a simplification of the process for obtaining ‘DIY’ Lasting Powers of Attorney, which could leave sections of the population – and in particular elderly people - at risk. We are also seeing an increasing number of ABSs offering Will and Probate services, with some non-qualified ‘probate administrators’ handling matters following just two days training. If these, or any other issues, are affecting your firm, we need to hear from you. Practically we have undertaken a few key projects to try and improve communication in all areas. We have been working on a shiny new website, which should “go live” in a matter of weeks. This will be combined with a fresh look to our e-mail correspondence, which will bring you up-to-date news on what we have been doing recently and details on future CPD and social events. We are also working on improving links with the Young Surrey Lawyers group, and hope to build strong relationships with Surrey-based young solicitors, making sure that we identify and deal with issues that affect them. We will also look to establish a new action group for COLPs and COFAs which will share information on how best to tackle this increasingly complex area. If you would like information on this, or anything else, please do contact the Society directly through me or Sue Seakens.
Throughout the year we will also look to continue to host a first class selection of CPD events. We would love to see as many of you as possible. Likewise, we will have a number of excellent social occasions for you to come along to. We have something for all tastes, with our annual football tournament in the late summer, the Legal Brain of Surrey quiz night at the University of Law in March, Presidential lunches in Kingston and Guildford and of course a Gala dinner in the autumn. Please keep an eye out for details of these great events. Any money raised from these events will go towards my chosen charity of the year, The Royal Marsden Cancer Charity, specifically at their Surrey centre. This is a charity which I have encountered on a professional and personal level. I am sure many of our members are in a similar position and I wanted to help to raise funds so that they can continue their good work. All that remains is to thank, in advance, my fellow SLS committee members, our Law Society Council members for Surrey (John Perry and Sushila Abraham) and CEO Sue Seakens for their support throughout my year. Please look to support your society by attending our fantastic CPD events and social functions. I look forward to meeting as many of you as possible. n DANIEL CHURCH, President
Surrey Lawyer 5
Local Issues
Council Member’s Report Report from Law Society Council Member Sushila Abraham
This is my first report to you as your newly elected council member and I am happy to be representing all Surrey solicitors along with John Perry. I will give below a brief overview of the last Council meeting that was held on 9th December which was the last of a very busy year.
Y
ou would have all read or heard of the launch in November of the Law Society’s strategy. The strategic aims being to represent solicitors by speaking out for justice and on legal issues, to promote the value of using a solicitor at home and abroad and to support solicitors develop their expertise and businesses irrespective of whether they work for a law firm, themselves or in-house. At Council it was agreed that there should be a review of the governance of the Law Society. Council was pleased to hear that this is now underway. Council agreed that this would help ensure that the Law Society would be able to deliver its strategy, represent, promote and support the profession effectively and also to respond in a more flexible way to the external changes we face. The withdrawal of the criminal court charge was great news as the Law Society had lobbied to reverse it. The Law Society responded strongly to the government consultation on criminal
advocacy and the campaign against court closures. You would have read the press release on Legal Technologies Practice Technologies (LPT) on Veyo the conveyancing case management system, the Law Society announced that it would not be making any further investment and this was a decision taken jointly with Mastek. The reason for this decision was that there were other Veyo type products built in other case management systems which were free. This change in the market meant that Veyo would not get the same market protection to succeed. The Law Society is now undertaking a full review of lessons to be learnt from this joint venture investment. Whilst writing this short report may I encourage all solicitors to make an effort to respond to all consultations. Our voice need to be heard and that is why responding to consultations are vital when the profession is being challenged by external changes.
The Law Society celebrated International Human Rights Day by hosting a carol service at Temple Church with an address from Human Rights Lawyer Shami Chakrabarti. The Law Society was on MasterChef see http://www.bbc.co.uk/programme/b06r xlko. I would like to take this opportunity of wishing all of you a splendid break during this festive season and a very happy New Year. If you have any queries and wish to discuss anything or would like me to raise anything with the Law Society then, I can be contacted by email at sabraham@sabrahamsolicitors.co.uk or on 020 8390 0044. n SUSHILA ABRAHAM Law Society Council Member
Volunteering with Surrey Law Centre All of our clinics are supported by volunteer Solicitors and Barristers who give up their free time. Without their help we would not be able to provide this much needed service which helps to provide access to justice for the vulnerable and disadvantaged people of Surrey who are not able to afford to privately fund a case or where Legal Aid is no longer available following the introduction of the Legal Aid Sentencing & Punishment of Offenders Act 2012 (LASPO) which 6 Surrey Lawyer
came into effect in April 2013. We operate pro bono clinics throughout Surrey covering Domestic Abuse, Family, Employment, Civil and Immigration law.
CURRENT VACANCIES We are always grateful to hear from new volunteers. We are currently seeking help in Employment Law at our Camberley, Woking and Godalming clinics. The commitment is usually once every 2 months for 2 hours. All of our clinics run
fortnightly on various days of the week. Click here for further details on our Advice Clinics. http://surreylawcentre.org/services/ If you would like to volunteer or would like any further information please contact Angie Brock, our Office Manager and Development Worker, on 0330 0020099 Monday to Friday between 10am and 3pm. Alternatively you can e-mail her at angelabrock@surreylawcentre.org
Editorial
CEO Report Winter 2016 Following the AGM on 26th November we have a new President, Daniel Church from TWM in Guildford, and a new Committee although many of the usual suspects are still on the team. Daniel has written his first Jottings for you this quarter so I do not need to say more about this and the list of Officers and Committee Members can be found on page 4.
A
ll that being said we are now seeking new members to replace those that stood down at the AGM: Elizabeth Eyre, Simon Kenny and Ken Seakens (yes - he is my other half!). If you are interested in helping with the strategic management of the Society we would be pleased to hear from you. There are details on the new website in the ‘Get Involved’ section but if you email me at sueseakens@surreylawsociety.org.uk and I can send you the details and an application form. We encourage people to attend at least 2 Committee Meetings to learn more about what we do. The main Committee only meets 6 times each year plus the AGM, but if you don’t think that main Committee is for you we do have several SubCommittees: Quo Vadis Strategy Group (chaired by the Vice President each year), Conveyancing & Land Law (chaired by Win Cummins), Finance (chaired by Treasurer Nick Ball), Social (chaired by Mark Gough) and a new Sub-Committee starting up in 2016 to focus on the future of Legal Aid. There are also ad hoc groups convened to work on SLS projects, such as the new website, and to draft responses to the myriad of consultations that impact on the profession. So my simple message to you all for 2016 is that we hope you will ‘Get Involved’. At the risk of repeating everything our new President has been Jotting for you another way you could get involved if you are a COLP or a COFA is to consider joining our new informal group for people like you that are dealing with the stresses and strains of keeping your firm compliant and up to date with all the latest demands of regulation and legislation. The proposal that we start such a group came from one of our
members, following our Rules & Risks event sponsored by CORRE last September. Subsequent enquiries have confirmed that this would be an excellent development and we already have 2 champions for the group Malcolm Martin from Morrisons and James Scozzi from Elite Law. We have yet to set a date for the first meeting but it will be early in the New Year once we have identified the right topic and venue for the first session. If you would like to know more please email me, sueseakens@surreylawsociety.org.uk The new website is ready to launch for the New Year and we are sure you will find it a huge improvement on the current site launched in 2008 which in IT terms makes it well past its ‘sell by’ date! Our current designers Kyan have been working with us to ensure that the site is easy to navigate and bursting with news, jobs, events and more. You will all receive an alert when the site goes live and we do hope you will test it out for us, including your own firm’s entry and details. My thanks to everyone who has completed the Web Update Form sent out last month. This has made our job so much easier… although we do still have a few to come back still (gentle nudge for the stragglers).
chosen charity for her year. Sushila will be handing over a cheque to the Centre staff and users in January, but in the meantime you will find an excellent article in the Family section of this magazine explaining just why advocacy support is so essential. This article was written by our very own Membership Administrator, Elaine Jacobs, who knows only too well how hard it is to navigate through the minefield that is the care system. So all in all a very busy time leading up to Christmas and an ever busier time in the New Year. The administration office will open on Monday 4th January after the festive break, ready for the challenges that 2016 promises for us all. Elaine and I wish you all a very happy, healthy and prosperous New Year. n SUE SEAKENS, CEO Surrey Law Society
I am delighted to confirm that we managed to raise £1,839.67 for the advocacy services at the Surrey Autism Support Centre in Godalming. This was raised at three main events during 2015: the Legal Brain of Surrey Quiz, the Magna Carta Celebration Dinner and the 2015 Football Tournament. Well done and thank you everyone who helped us to raise this excellent sum for the Centre which was Immediate Past President, Sushila Abraham’s
Surrey Lawyer 7
Local Issues
Downs Solicitors LLP announces merger with Redhill-based solicitors, Fieldhouse & Co LLP Surrey-based, entrepreneurial law firm, Downs Solicitors LLP, are pleased to announce the merger with Redhill-based solicitors, Fieldhouse & Co LLP. The combined practices will operate under the name “Downs Solicitors LLP” and will be headed by Senior Partner, Chris Millar. The merger is part of Downs’ continued planned expansion strategy and they will be joined by the niche commercial and employment law firm, Fieldhouse & Co LLP, from 1 October 2015. Fieldhouse & Co LLP was formed in 2005 by Nick Fieldhouse and Keith Potter who have extensive commercial experience having previously worked for a number of major City law firms. Chris Millar said: “The merger will enable the firm to build on its client base and reputation and complements the strong commercial and employment services already provided by the firm.”
Founding Partner, Nick Fieldhouse, has over 37 years experience of advising businesses on a range of commercial law, having spent 21 years working for a number of City practices before moving to Redhill and establishing Fieldhouse and Co in 2004. Nick is planning to take time out to enjoy some of his favourite past-times sailing, golf, skiing and music. Fellow Partner, Keith Potter, will join Downs as a Consultant Solicitor and will be based at their office, in Dorking, Surrey. Keith advises businesses, public sector bodies, charities, sports clubs and individuals on a very wide range of employment law issues. He also specialises in advising businesses on the employment aspects of business sales or changes. Keith’s skills and experience will further strengthen the depth of expertise already provided to local businesses by Downs’s Employment team. Downs Employment Department is ranked in the Legal 500 and Chambers and Partners as one of
the leading practices in Surrey and the South East for HR and employment law advice. The rankings are awarded as a result of client testimonials and the quality of their employment lawyers' work. Downs Solicitors LLP is a modern, forward-looking law firm with a strong combination of skills and expertise, offering an extensive range of services to today’s individual and business clients.
More information about Downs Solicitors LLP can be found at www.downslaw.co.uk
Stephanie Flanders inspires Surrey lawyers Stephanie Flanders, chief market strategist Europe at J.P. Morgan Asset Management was guest speaker at an investment seminar attended by 40 Surrey lawyers and hosted by HFS Milbourne, the financial specialist and SLS sponsor. Left: Iain Halket, chair of HFS Milbourne's investment committee.
Stephanie, who delivers insight to professional investors worldwide in her role at J.P. Morgan, provided an economic update and an overview of the current investment markets, after which there was a Q and A session. Ian Muirhead, chairman SIFA, who provide professional services for solicitors and financial advisers presented ‘moving towards holistic advice’, a look at the impact of the convergence of legal and financial disciplines heralded by the Legal Services Act. Plus Iain Halket, chair of HFS Milbourne’s investment committee reported on
8 Surrey Lawyer
how the company’s Strategic Portfolio Service is used to ‘safely manage clients’ money’. “Prior to her current role at J. P. Morgan, Stephanie enjoyed a very successful career as a journalist, economist and advisor to the US Treasury and so is very highly respected within the industry. We were therefore delighted that she accepted our invitation to the event and that so many local lawyers made time to join us at what turned out to be a very interesting morning,” said Rod Milne, joint managing director HFS Milbourne.
Local Issues
HFS Milbourne commits to Surrey lawyers for seventh year! HFS Milbourne, the Guildford based financial specialists has renewed its support of Surrey lawyers for the seventh consecutive year by committing to a further term of annual sponsorship of the Surrey Law Society (SLS), the ‘voice’ of legal teams across the region. As sponsors, HFS Milbourne will support SLS’s Continuing Professional Development (CPD) programme which is aimed at helping local lawyers continue their legal education. "We have long standing relationships within the local legal profession which we are able to nurture and develop through our association with the Surrey Law Society,” said Rod Milne, joint managing director HFS Milbourne. “It’s a mutually beneficial relationship and we are therefore delighted to be in a position to commit for a further term. We welcome Daniel Church, incoming President of the Surrey Law Society and look forward to another fruitful 12 months of working together.”
Daniel Church, president Surrey Law Society said, “As an organisation we are always looking to expand the scope of our services and thanks to the generosity of companies such as HFS Milbourne we are able to do this. We are extremely grateful to HFS Milbourne for their continued support.” HFS Milbourne Financial Services is authorised and regulated by the FCA and specialises in wealth management; pensions; finance on divorce; employee benefits and corporate financial planning.
Additionally, HFS Milbourne offers financial products tailored for lawyers and provides best practice advice and specialist training on niche areas spanning finance, pensions, divorce, probate and the associated legislation. For further information, visit www.hfsmilbourne.co.uk or call 01483 468888.
Barlow Robbins hires Corporate and Commercial partner from the Magic Circle 9th September: Surrey law firm Barlow Robbins is delighted to announce that Kate Norgett has joined the firm as a Corporate and Commercial Partner. Kate brings eleven years of experience with her from Clifford Chance where she was a senior professional support lawyer specialising in private M&A, joint venture and private equity transactions as well as corporate reorganisations. Before that, Kate was a senior associate in the corporate team at CMS Cameron McKenna where she did the full range of private and public M&A and equity capital markets work. In her new role at Barlow Robbins, Kate will work to bolster the firm’s Corporate and Commercial offering and will work alongside partners Mark Lucas, Philip Stephenson and their team. Bernd Ratzke, Managing Partner Client Services at Barlow Robbins, said:
“Kate’s arrival denotes a strategic move for the Corporate and Commercial practice, we are expanding to capitalise on the opportunities we see in the business community. Kate’s experience at a Magic Circle firm will be invaluable and she will be a key asset to the team.”
important client? I am looking forward to working with as many of you as possible.”
Kate Norgett, Corporate and Commercial partner at Barlow Robbins adds: “I am thrilled to be joining the Barlow Robbins team. My question for locally based businesses and entrepreneurs is why go to London when you have top quality lawyers here in Surrey, who will provide you with a personal service that is right for you and where you will get the benefit of being a truly valued and Surrey Lawyer 9
Local Issues
Partner returns to law firm Hart Brown 24 years after qualifying Hart Brown Woking office sees Vanessa McMurtrie return as new Partner Vanessa McMurtrie began her legal career with Hart Brown, where she trained and qualified as a solicitor back in 1991. 2015 sees her re-joining Hart Brown as a Partner, in the family department of their Woking office, where she will provide family law advice across all of Hart Brown’s six offices in Surrey. As a Resolution accredited Collaborative Family Lawyer, and Collaborative (ADR) Family Solicitor Vanessa specialises in Family and Matrimonial issues, and is committed to resolving disputes in a nonconfrontational and constructive way.
On talking about her re-joining Hart Brown, Vanessa reflected on her past success. “ I have had a number of memorable and rewarding cases over the years, but the two that really stand out were: the relocation case where the two teenage children wanted different outcomes – the son wanted to stay with the dad in the UK and the daughter wanted to go with mum to USA, and the presiding judge commented upon how difficult it was to make a decision in this case and others which involved international geographical distances following relocation of one parent; and
the case where a grandmother successfully stopped her grandchildren from being adopted despite the local authorities determination that the two children should not remain within the maternal family.” n
2015 Surrey Law Society 5-a-side Cup As many of you will know, the finals of the SLS Cup were played on Monday 23rd November, at Sutherland Memorial Park, Burpham. Thank you to everyone who took part in what was another successful tournament full of drama, goals and thankfully not too much controversy! The Tournament was sponsored by Thesis Asset Management, who provided the lure of a shiny SLS Trophy and a brand new 5-a-side kit for the eventual winners. The group stages were completed well within the three month deadline, with TWM Solicitors, Stevens & Bolton, Roffe Swayne and Surrey Advertiser progressing to the finals evening. The first semi-final was won by Stevens & Bolton, who carried on their impressive group stage form to defeat a Surrey Advertiser team who will have been pleased to get so far in their debut tournament. The second semi-final was won by TWM Solicitors, beating Roffe Swayne to progress to the GRAND finale. In an extremely competitive game, where Roffe Swayne took the lead after just 10 seconds, TWM did well to come out on top. The final was fought out between TWM Solicitors and Stevens & Bolton, two of Guildford’s legal heavyweights. Both sides showed sides of tiredness, having just played their semi-final matches 15 minutes beforehand. However, TWM Solicitors held on
10 Surrey Lawyer
to edge out their opponents and take the trophy, the prize and the glory! Thank you to everyone for supporting Surrey Law Society and for making this an excellent tournament. Your entry fees have raised £300 for The Surrey Autistic Society’s Resource Centre. The (SLS Cup) will be back for its 4th year in 2016. If you would like to enter,
please register your interest now by contacting daniel.church@twmsolicitors.com. Please remember that the tournament is open to all. n
See you in 2016! DANIEL CHURCH President, Surrey Law Society
Final Results: Group A Stevens & Bolton Roffe Swayne Hart Brown Thesis
Played 3 3 3 3
Win 2 2 1 1
Draw 0 0 0 0
Loss 1 1 2 2
Goal +/6 3 -4 -5
Points 6 6 3 3
Group B TWM Surrey Advertiser Surrey Outlaws Russell Cooke
Played 3 3 3 3
Win 3 2 1 0
Draw 0 0 0 0
Loss 0 1 2 3
Goal +/18 2 -11 -9
Points 9 6 3 0
Semi-Final 1 Semi Final 2: FINAL SCORES:
TWM Solicitors 10 Stevens & Bolton 10 TWM Solicitors 13 -
Roffe Swayne 3 Surrey Advertiser 6 Stevens & Bolton 7
Property
Application and training overhaul set to speed up CQS applications by Bhavni Fowler, South East Regional Manager for The Law Society Following extensive research, feedback from CQS member firms, the results of an online survey and ten road shows which were undertaken in 2015, the Law Society have identified a number of areas for improvement to CQS. The primary changes involve the application and re-accreditation process as well as changes to aspects of the mandatory training. With regards to the application process, the main change is that firms will now only undertake a full re-application process every three years. Practices will still be asked to submit a full application when they join the scheme but upon reaccreditation for year two and year three firms will be asked to complete what will be known as an annual maintenance assessment form. This will primarily focus on the key aspects of probity and assurance together with identifying any major structural changes that have taken
place within the firm, such as changes to key staff members. Firms entering year four accreditation will complete a full reaccreditation application form, firms entering year five and six will undertake the annual assessment and so on. The other major change is a simplification to the mandatory training that member firms are asked to complete. The training will be split into two separate elements. These will now be known as Update training and Core training. Update training will consist of two modules for existing staff and will cover Conveyancing Practice and issues around Risk & Compliance. Training for new staff, known as Core training, will concentrate on the CQS Protocol and also Financial Crime (covering both mortgage fraud and AML). These new modules for new staff will be introduced no later than 1st April. President of the Law Society Jonathan Smithers said: 'We are pleased to announce these improvements. CQS is a valuable quality mark for firms that helps
them to stand out from the competition, gain access to several Pictured: Bhavni Fowler. lender panels, and demonstrate to clients that they follow best practice, and meet the highest standards of technical expertise and client service. The revisions will streamline the administration of the scheme, saving time and resources for our members. Just as importantly they will ensure that the rigour of the application process remains, and ensure that there is robust monitoring of firms within the scheme.' All of the necessary application forms are available on the CQS website but if any member firms have a specific queries about the above changes to CQS please contact Graham Murphy, CQS Product Manager at the Law Society. n graham.murphy@lawsociety.org.uk
Surrey Lawyer 11
Finance
The ever changing world of costs There has been a number of changes related to costs since 1st October 2015. No doubt too many to go through fully but here are some of the highlights.
A
s many will be aware most costs assessments take place in the Senior Courts Costs Office inside the High Court of Justice. Master Gordon-Saker (Senior Costs Master) attended a conference on 30th September 2015 where he confirmed that five of the eight Costs Judges at the SCCO will retire in the next 5 years and will be replaced by new Judges. Jennifer James has been appointed as a new Costs Judge. She was a Deputy for 30 years and she is the first female Costs Judge to be appointed. Further two new extra Costs Officers will be appointed shortly. This is in part to reduce the current waiting list for costs hearing which is currently 6 to 10 months. Most of the Masters are currently listing cases from April 2016 onwards however Master Gordon-Saker is actually listing matters as late as March 2017. By now many will know that the new format Bill of Costs has been released and is being used in a voluntary pilot scheme at the SCCO which is to run until October 2016 (after which there will be a mandatory pilot scheme). The pilot applies to Bills where costs proceedings were commenced post 1st October 2015 and a costs case management order is in place. For further information see CPR Practice Direction 51L. The new Bill of Costs is essentially a spreadsheet with 60 columns which is meant to be automatically populated as long as you record your time in accordance with the dreaded “J Codes”. J Codes mean that you now not only need to prepare notes for how you have spent your time but must also code them by phase, task and activity. In the same vein all your disbursements will need to be coded in accordance with “X Codes”. The most worrying aspect is the fact that application of J Codes to your work is retrospective. In other words once the pilot is mandatory all those that need to submit bills for assessment to the SCCO will need to go back through their files and codify all their work in accordance with the J Codes. This will be a very time consuming task which will have to be either done by the fee earner or outsourced to a Costs Lawyer. The important point to take away is that all firms must ensure that they have case management systems which have the ability to record time in accordance with the J Codes otherwise they are likely to go to great expense to prepare Bills and in all likelihood will not be able to recover the cost of the same in the long term.
12 Surrey Lawyer
Interestingly Master Gordon-Saker did say that if people filed the new format Bill of Costs it was highly likely they would get a much earlier hearing date. In relation to the costs hearing the idea is that the Master will have a large screen facing him on which he amends the Bill electronically whilst there is a secondary screen facing the advocates where they can see what the Master is actually changing. I now turn to the proposal of applying fixed fees to noise induced claims and clinical negligence claims. The relevant committees are at a very preliminary stage of looking at whether fixed costs can be applied to these types of claims. It is interesting to note that these are the only two areas to which the Government wishes to apply fixed fees particularly when one considers that the paying party will either be insurers or the Government. In relation to clinical negligence claims the proposal is to set fixed fees for claims where damages do not exceed £250,000 in damages. There has been no real discussion as to what the fixed costs will be in the end, however the model that was suggested by Lord Jackson was that it is literally a percentage of damages up to £250,000 that constitutes the fixed fee. Such a matrix would be ghastly as it does not take into account the fact that most clinical negligence claims are very complex and often costs exceed damages. If such a matrix were to be used it would undoubtedly lead to many potential Claimants being unable to access justice. As a further point it should also be noted that the Government and the insurers are also looking at capping ATE policy premiums for clinical negligence claims. Turning to cases involving minors Part 21 of the CPR was changed earlier this year for those of you do not know. Rule 21.12 changed in that it now allows the Court to summarily assess costs at approval hearings where damages are less than £25,000. This means they can assess the success fee and the ATE premium. An example of the rule change in action can be seen in the case of (1) A (2) M –vRoyal Mail Group [2015] CC (Birmingham) 14/08/15. In this case the Judge ruled that a 100% success fee was unreasonable despite the 25% cap imposed in clinical negligence cases. Liability was admitted. He also questioned the need for ATE. He criticised the lack of a bespoke risk assessment. He eventually ordered the Detailed Assessment. There is anecdotal evidence that there have been a number of
these cases over the country, some of which are actually being appealed Photo: James Scozzi where literally all the DJs are disallowing success fees in cases involving minors at infant approval hearings. In relation to mediation the recent case of Laporte v Commissioner of the Police of the Metropolis [2015) is of particular significance. This case is very recent and essentially will put you in a position to understand what costs consequences apply where mediation is refused. In summary even if you win at trial and you failed to mediate the presiding Judge can make an Order for costs that is disadvantageous. This did happen in Laporte where the case did go to trial, they did win but because they refused mediation the Judge made a percentage reduction to the overall potential award for costs. In this regard it is important to note that as of 1st October 2015 there has been a CPR rule change that is encouraging ‘early neutral evaluation’. This is a type of mediation that is actually administered by the Court. Interestingly there is no requirement for the parties to agree to it and the Judge can just order it. Finally I turn to costs in the Court of Protection. There has been an important change to Court of Protection claims as of the 1st October 2015 whereby costs estimates now have to be provided when the annual report is completed and will have to accompany any Bill submitted for assessment at the SCCO. The format of the estimate will follow the old Form H. The above changes to current costs practice is merely a brief summary and many more are afoot. No doubt many Solicitors will need to think ahead and plan for some of these changes, whether they would like to or not. n JAMES SCOZZI Elite Law Solicitors The Solicitors Who Specialise in Costs
Finance
The Fed finally gets it right!
Photo: Iain Halkett
Despite all the speculation that September would bring the first interest rate rise in America since 2006, last week saw the eventual lift off. When it came to the crunch, the Federal Reserve (Fed) was too nervous about events outside of the US in the autumn, but we go into the New Year expecting a gradual tightening of policy. US stocks initially rallied on the news, but the euphoria did not last. There are some concerns that the strengthening US dollar will make life difficult for their exporting companies whilst also making life tougher for emerging markets that also link their currencies to the dollar. However, we expect that the US economy will remain strong with consumers buoyed further by a strong jobs market, rising real wages, low gasoline prices and an easy credit backdrop to provide a little economic warmth for the winter months ahead. Janet Yellen, the Fed Chair, also addressed the length of the economic recovery at her recent press conference stating that it is a myth that economic expansion dies of old age and its days are numbered. She reinforced the commitment that this will be a slow gradual process. The Bank of England is expected to follow the lead and raise rates sometime in 2016, but inflation is subdued with little sign that our economy is about to overheat! Our economy is relatively strong and companies outside of the energy, oil and mining sectors are on the whole in robust shape. We believe that time alone is not a barrier and just because prices have been going up, this does not mean it has to come to an end. Asian markets continue to offer a compelling investment case due to attractive long-term prospects and solid demographic foundations, especially as we expect the likely trajectory of US monetary policy to remain slow and low over the coming years.
Shanghai surprise Our central view on China remains that the economy will continue to struggle in coming quarters but will not experience a sudden collapse. The official figures from China indicate growth exceeding 7%, although this is met with some scepticism. This indicator is biased towards heavy industry and the old China of state owned enterprises. A truer picture looking at electricity production and rail freight statistics show activity is lagging, but growth of 3.5%, as reported by
some, is perhaps an understatement with other figures showing growth at 6% appearing more reliable. Official statistics ignore the more dynamic service and property sectors, which are buoyant and better capture the real position in China. A cause for concern though is the confidence in the ability of the Chinese authorities to manage the situation, as they first caught markets by surprise with the currency devaluation in August and a sharp fall in the Shanghai equity market soon after was met by a clumsy response, which probably made the situation worse. Nonetheless, the risk premium on China has risen.
Closer to home Elsewhere, the refugee crisis in Europe has morphed from a humanitarian crisis into a political one over the burden of receiving asylum seekers. German exports to China have also slowed down where, coincidentally, Volkswagen sells one out of every three cars they produce to China. Here in the UK, growth is pretty robust, although it remains to be seen what impact the introduction of the living wage will have on companies’ employment plans. Political uncertainty ahead of the EU Referendum may also dampen investment activity. All this means that inflation will stay low and there is no hurry for the Bank of England to raise interest rates either.
Market Implications
An earnings recession looks avoidable, a major credit crisis is unlikely and markets are not excessively over-valued. Even when the interest rate upturn in the UK gets underway, equities tend to continue rising through the early part of the cycle. Companies that can generate earnings growth in a variety of market conditions will prosper and those that can pay a sustainably high dividend income in a persistently low yield world will be much sought after. Our clients have seen the huge advantage this year of being invested in actively managed funds whilst avoiding the pitfalls that often befall index tracking funds. The FTSE 100 total return index, which includes dividends, has returned -4% year to date. The combination of UK equity funds held at HFS Milbourne has achieved 8% growth in contrast. The active managers have generally avoided the declining oil and mining companies who have suffered badly in recent months. They have enjoyed the relative prosperity of the UK medium sized companies and are now considering selective purchases once more in the beaten up energy sector. Rate rises in the developed world should be seen as a sign of a recovering economy returning to some form of normality and a positive action; exactly how that new form of normality evolves is yet to manifest itself! n
IAIN HALKETT Having experienced an unusually long Chair of HFS Milbourne Investment period without a market correction, the summer shake-out leads us to believe that it is business as usual. The 6½ year equity bull market is not over and we do not believe that any of the usual preconditions for an equity bear market are in place. HFS Milbourne UK Equity portfolio V FTSE 100
Surrey Lawyer 13
Probate
Probate: Doing the work Profitably by Gregory van Dyk Watson, Managing Director of Isokon Limited Do you know the Gross Profit Margin (GPM) of your Private Client Department?
Paralegals and Former Secretaries work in Teams Once satisfied, the team leaders head off to their respective teams consisting of three, four or five paralegals or former secretaries, all of whom have received a thorough training in the use of the software. Towards the end of the working day, the head of the probate team looks at the log of tasks in the software to ensure that all tasks have been completed. This method of organisation is simple, straightforward and effective.
How do you best ensure the profitability of your probate work? Surprisingly, most law firms do not appear to know the gross profit margin of their probate department. Let me put that differently. Of the 140 firms who use our probate software (Isokon), the majority declined to answer our questions about their profit margin for this area of work.
Some firms are exceeding 70% GPM We were not able to assess whether they did not actually know the answer to the question or whether they were simply being discreet. Or possibly they were too embarrassed to reveal their relatively low profit margin. The irony is that of the firms that were willing to discuss their profitability, all revealed that their gross profit margin is consistently in excess of 70%.
How have they achieved these high profit margins? The key question is: how have these high margin firms managed to achieve this level of profitability? What distinguishes them from the low margin firms? In the one instance in which the firm was willing to discuss their success openly, the formula appeared to be relatively straightforward. Profitability is a mixture of effective software combined with judicious organisation. Let us examine that in more detail, since both parts are equally important.
Software Accounting Database The software is an accounting database designed specifically for probate (and trust) work with the ability to easily record the variety of financial data of the deceased estate, including such items as business and agricultural relief, ISAS and PEPS, net or gross taxation of domestic and foreign equities, including double taxation agreements, separating capital and income, post probate adjustments and abatement of assets in instances where the estate is more than just a bank account and a house.
Estate Accounts with a Single Click The software enables estate accounts and IHT forms to be produced with a single click.
Integrated Case Management The software includes a case management component that consists of a workflow with
14 Surrey Lawyer
Quote from the Head of the Probate Department task management, a log of events, and a mailmerge facility that enable a range of standard letters to extract data from the accounting database. The latter enables a range of letters and emails to be produced and sent to banks, building societies, funeral directors, utility companies, executors, beneficiaries, and other related parties. Letters to these parties can be produced at the proverbial click of a mouse, and often more than one letter at a time, each of which can be billed at the rate of one unit of time for each individual output.
You need more than just software to succeed It is axiomatic that having the software technology available does not inevitably result in the level of profitability achieved by the firm in question. To repeat the key question, how do those customers consistently achieve a gross profit margin in excess of 70%. Profitability is a mixture of effective software combined with judicious organisation.
Morning Briefings with the Head of the Probate Team In one of those firms the team is led by the head of the probate department who holds morning meetings with the four team leaders. The tasks for the day are examined and discussed, as shown in the software case management component, the text on the screen in front of them, to ensure that the team leaders understand the nature of each task, even though most tasks are fairly straightforward. Where a complex task requires the professional skill of the partner in charge, she might allocate a complex task to herself by a simple switch in the software.
“Our probate department has achieved a 72% level of profitability. We are the most profitable department in the firm.”
Advice from Charles Christian the Doyen of Legal Technology An important adjunct to ensure success is training. To quote Charles Christian the doyen of legal technology in his chapter on ‘Computer and Technology Issues’ in the Probate Practitioner’s Handbook: “… computer systems are just tools whose value derives from how they are used. It therefore follows that if people are not trained in how to use them properly, the firm will not see a satisfactory return on its IT investments.”
Organisational Discipline The second component of success is organisational discipline. To quote Charles Christian again: “… it helps to have a senior member of the firm in overall charge of the implementation, so that they can compel the fee earners to attend [the training]” and selfevidently to actually use the software. The extreme converse of our profitable firm is where practitioners are permitted to go their own way and revert back to a more manual method of doing the work. Working as a cohesive team appears to be fundamental to success and profitability in this area of work.
Profitability Testimonial “I am extremely happy with Isokon and don't know how I accomplished the work properly before using Isokon. I can now undertake double the quantity of Probate work than was possible before adopting Isokon.” Peter Cox, Partner, WBW Solicitors (Exeter, Torquay, Newton Abbot).
For further information please contact: Gregory van Dyk Watson, Managing Director of Isokon Limited. Email: gregory@isokon.com or call 020 7482 6555. Alternatively visit www.isokon.com
News
Set Your Sails and Sights on the Legal Cup The Legal Cup doesn’t just offer participants a fabulous weekend of learning how to sail, having fun, getting to know your team mates better and enjoying the various networking opportunities including the legendary Gala Dinner. It also helps raise valuable funds for charity.
S
ail 4 Cancer are once again the nominated charity beneficiary for the Legal Cup 2016. In addition to generous charity donations, a number of additional fundraising activities including a raffle and auction, which help raise the funds they need to improve the lives of others less fortunate. Sail 4 Cancer primarily provide sailing respite days to individuals and families affected by cancer, offering a day or week away from the disease and the nightmare that they are living through, with a chance to create positive memories and enjoy some quality fun time together. Tahiti Tourism have come on board as an event sponsor for the Legal Cup 2016 and teams from
Freshfields, Linklaters, Clifford Chance and Ashurst have already confirmed entry as they try to steal the trophy from the current title holders, the Bar Yacht Club! So the Legal Cup 2016 is looking bigger and better than ever and is fast approaching! The event takes places on the weekend of 14-15 May 2016, if you would like to enter a team, sponsor a trophy or donate an auction prize please get in touch with Britannia, the event organisers. info@britanniaevents.co.uk 02380 458900 www.britanniaevents.co.uk /legal-cup
Surrey Lawyer 15
Clinical Negligence
Brain Injury Clinical Negligence Headway is a charity that supports people affected by a brain injury. In the Winter 2015 edition of Headway’s magazine the cover story relates to international para-climber Dave Bowes who competes across the world. Mr Bowes often hears people say: “but you don’t look disabled.”
B
rain injury is not always evident unlike some other injuries - the most obvious example being amputation. Indeed, an injury to the brain can appear to be “hidden”. Mr Bowes himself was apparently diagnosed initially with mild concussion following a motorbike accident. It seems that his serious brain injury was missed at the outset. I have acted for clients whose brain injuries caused by clinical negligence have been very obvious and for some others where the injuries were “hidden” like in Mr Bowes case. A major area of brain injury caused by clinical negligence relates to damage to children at or around the time of their birth. These cases often result in a diagnosis of cerebral palsy and such cases are still eligible for legal aid. In April 2013 the government pursuant to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed adult clinical negligence cases from legal aid save if they justified exceptional funding (which by definition would mean that such cases would be rarely funded by the LAA, i.e. the Legal Aid Agency). However, under LASPO it is very difficult to get legal aid funding for brain injured children. I act as an Independent Adjudicator for the LAA and I have seen first hand how hard it is to fulfil the LASPO criteria. I have heard lawyers complain that to get legal aid now you almost need a written admission of liability from your opponent! How different it was when I qualified back in 1991. When I first qualified legal aid was available to adults and 16 Surrey Lawyer
children alike in clinical negligence matters. Although brain injured children may still be able to, in theory, obtain legal aid now, practitioners face other problems with legal aid not least with regard to finding experts who will accept low legal aid hourly rates. Many practitioners are now seriously asking themselves whether legal aid remains a valid option for potential claimants.
Photo: Marek Bednarczyk
However, the burden of paying for all the experts needed in a cerebral palsy (CP) case can be huge. In one case I instructed about 13 experts which is by no means unusual. Sadly, CP cases usually fall into the category of “obvious” brain injury cases. Some of my clients have been blind and unable to walk or talk. However, others have had more subtle deficits. It is now more common to see children who suffer from hypoxia at birth being treated using a process called “total body cooling”. This can improve outcomes in some cases. In one of my cases my child client suffered from both birth hypoxia (a failure in the oxygen supply) and a traumatic injury to his skull which was fractured by a student midwife who had tried to disimpact his head in the birth canal. Initial predictions were very gloomy. Total body cooling in that case I believe saved my client from the worst effects of his birth injuries although subtle changes may still be an issue as indeed these changes can still have major consequences in the longer term. A high functioning professional lady who suffered from a subarachnoid haemorrhage, which was diagnosed and treated too late, lacked in our
view, based on expert evidence, the capacity to give instructions in litigation. Despite serving two reports from a leading neuropsychologist, the two opponents in that case refused to admit my client’s lack of capacity and this point was only accepted shortly before her trial this year (a settlement on liability in this case has now received High Court approval). In this case the claimant can talk clearly and she can use a computer to an extent. However, the difference in ability prior to the negligently caused injury compared to the present situation is still significant. Using the claimant’s own words, she is a “one trick pony”, meaning she can cope with single tasks to a degree, but multi-tasking is now beyond her. Although in this case the changes caused by brain injury may appear in some respects quite subtle they still remain very significant. One of the benefits of acting as a solicitor in such cases is the advantage one gets in talking to a client, where this is possible, over a prolonged period. In one case which could be characterised as a “hidden” brain injury case, my consultant psychiatrist confirmed that my client lacked capacity to give instructions in litigation. My client was seen by another expert who was asked to look at other features of his condition but
Clinical Negligence inevitably that expert had some views as to whether my client lacked capacity or not. To put it simply, this other expert did not accept what the psychiatrist had concluded. My client could handle a conversation and he was even able to study and gain a qualification. This obviously had an impact on the second expert’s view on the matter. However, I had no doubt that my consultant psychiatrist was right in his conclusions because I had spoken to my client over a prolonged period spending hours with him in total. The features of his brain injury (caused by undiagnosed raised intracranial pressure) were as obvious to me as they were not obvious to my other expert who had only seen my client for a relatively brief consultation. Unless the symptoms of brain injury are modest these cases are often amongst the highest value claims one can pursue. Some claimants require 24 hour a day care packages and that head of claim can be the single highest head of claim in the whole action. Financial losses (i.e. “special damages”) often run into the millions and will involve the court making periodical payment orders to cover the claimant’s care and other needs for life. General damages for pain and suffering and loss of amenity in a case of brain injury, even in the most
severe cases, may represent a fraction of the overall total claim. The current edition of the Judicial College guidelines for general damages suggests that the maximum award for general damages in a severe brain injury case (without a10% uplift for post 1 April 2013 cases) should be around £297,000. Earlier this year following a contested trial, seven year old Eva Totham was awarded, in lump sum terms, £10.1M. The claimant’s solicitor was quoted in the press as saying that the case was not about money “it was about securing justice”. I support and sympathise with the above sentiment, but at the same time I do not underestimate the value of a financial settlement. On occasion after settling a large claim where homes have been purchased and/or adapted my client’s parents have invited me for a visit to see what has been done with the settlement monies. It is a privilege to go back and see how a good settlement can make such a positive impact and that is a great motivator. There do appear, however, dark forces at work on the horizon. Recently, of course, the Department of Health has put
forward a proposal to impose fixed costs on clinical negligence cases of a value up to £250,000. Surely, severe brain injury cases would not be affected by these proposals? However, consider the problems with legal aid mentioned above, and also consider another potential area of attack. The Medical Defence Union (MDU) has now launched a campaign to “reform personal injury law”. The MDU want to cap damages in such cases. They complain that back in 1988 the MDU paid the first £1M compensation award, but awards have greatly increased since then and the highest payment made by the MDU to date is apparently £9.2M. It seems that the MDU would like to turn the clock back to 1988. The Law Society, not that long ago, ran a campaign called “what price justice?” History may be repeating itself very soon and it looks that even the most vulnerable and deserving claimants with severe brain injury will be falling under the bean counter’s scalpel unless we are vigilant and unless we continue to work hard to gain justice for our clients.
Marek Bednarczyk from Hart Brown cited in leading journal on medical negligence Bloomsbury Professional have published the 5th edition of Clinical Negligence the only text of its kind to cover both medical and legal aspects of medical negligence. Marek Bednarczyk, a partner at Guildford based law firm Hart Brown, is one of the contributors. Marek has written the chapter on the Conduct of Proceedings jointly with Master David Cook a Clinical Negligence Master at the Royal Courts of Justice. Regarded as the “go to” publication on clinical negligence, it is written by a team of 54 experts, and provides the most comprehensive and authoritative guidance on all aspects of clinical negligence claims from bringing an action for damages to presenting expert evidence in court. It also includes
detailed consideration of funding and cost implications. Marek’s contributions to this new edition is a recognition of his expertise in the area of personal injury and clinical negligence within Hart Brown. Marek is a member of the AvMA Panel (Action Against Medical Accidents), a charitable organisation which helps people that have suffered an injury from a medical accident, by providing free and confidential advice and support. Marek has also been a long standing member of the Law Society/SRA Clinical Negligence Panel and has worked for many years dealing with legal aid appeals for the Legal Aid Agency (LAA) an organisation charged with the administration of legal aid. He has been a member of the Association of Personal Injury Lawyers (APIL) for nearly 20 years and is an accredited APIL Senior Litigator.
Surrey Lawyer 17
Clinical Negligence
Common Problems in Cosmetic Surgery by Gerard Sanders
The social pressure to look good, combined with sustained and effective advertising campaigns has resulted in an exponential growth in the number of persons opting for cosmetic surgery.
I
n terms of surgical procedures, the British Association of Aesthetic Plastic Surgeons (BAAPS) confirm 45,406 surgical procedures in 2014 alone - the most popular procedure being breast augmentation surgery - 8,619 cases. It is clear that the majority of patients have reported a successful outcome but that a significant minority have experienced a very different result. As a clinical negligence solicitor, I experience an increasing number of clients - primarily women - who have encountered devastating, even life changing consequences of cosmetic surgery. A few common problems are set out below. In the wake of the problems encountered by thousands of women who were fitted with substandard breast implants made by Poly Implant Prothese (PIP), many women have reported problems with breast implant surgery. I have seen cases involving bilateral breast implant exchange where original implants have been incorrectly removed, leading to leakage of silicone into a client’s body. These clients have reported long standing and unpleasant symptoms including fatigue, joint pain and anxiety and depression. Perhaps most commonly, women have quite simply reported that the outcome of the surgery was not what they expected and that they would not have had the surgery if they had known what the outcome would be. Clients have reported receiving implants which were far too small or implants which have led to permanent “rippling” or lumpiness. Laser treatment for birthmarks or other skin blemishes is another common source of claims. I recently successfully concluded a claim on behalf of a client who had received laser treatment which was intended to remove a birthmark. Due to the laser being incorrectly set and the client having the wrong skin patch testing at the start of her treatment, she was left with a larger, darker skin blemish then she had before the treatment started. The process of cryolipolysis - freezing of unwanted fat cells - can also lead to problems. I have been instructed by a lady who suffered significant burning to her abdomen as a result of the machine used for the process being left on her skin for too long.
18 Surrey Lawyer
Problems following eye surgery lead many clients to instruct my firm. With blepharoplasty, the aim is to reduce bagginess from a patient’s lower eyelids and to remove excess skin from the upper eyelids. Problems arise when too much skin is removed, occasionally leaving patients unable to close their eyes or experiencing difficulties with blinking, resulting in dry eye. Laser eye surgery is popular for correcting conditions such as myopia (short sightedness) or astigmatism (blurred vision.) A popular technique is LASIK (Laser in situ Keratomileusis) which involves lasering under the cornea - the front surface of the eye - to create a thin flap. This is lifted and the exposed tissue is lasered. The flap is then repositioned and stays in place through natural suction. The flap is joined to the cornea like a hinge and can be replaced in exactly the same position. Significant mistakes can be made whilst cutting the corneal tissue, causing damage with the laser and leaving air bubbles or debris under the cornea when it is sealed. As a result of this, some of my clients have reported night vision problems, halos, star bursts and more serious and long standing visual disturbances. I recently settled a claim for a lady with problems following lens replacement surgery - a popular form of surgery which does not involve a laser. The intention of the surgery is to correct refractive errors impacting upon the eye’s focusing power. My client reported long term disturbances including blurred vision and ghosting the appearance of a partial or “ghost” image at the side of what she was focusing on. The bottom line in my experience in eye surgery cases is that patients have reported that their vision is markedly worse after the surgery than before. In addition to the physical injuries sustained as a result of botched cosmetic surgery, I notice that clients often suffer significant psychological damage. Such clients are understandably depressed as a result of often parting with thousand of pounds, having being simply sold the benefits of surgery and having been assured of the improbability of a bad outcome. The effect of that bad outcome is devastating can lead to psychiatric damage in the form of anxiety, depression and even post traumatic stress disorder. It seems that the main reason for claims arising out of
cosmetic surgery is the fact that the surgery is substandard. It is to be noted that there are no specific qualifications in cosmetic surgery and that it is not a speciality on the GMC register. Certain clinicians appear to be motivated by commercial gain to the extent that they are prepared to operate outside of their speciality. The Royal College of Surgeons has recently suggested a register of certified surgeons to help the public to make an informed decision about the quality of their surgeon. Steven Cannon, Vice President of the college, was quoted on the BBC news website as saying that this would help to “stop the general practitioner doing the nose job… the dermatologist lifting someone’s breasts… all that cowboy behaviour”. Another key issue in cosmetic surgery is whether the patient’s informed consent has been properly obtained. I have experienced cases involving eye surgery where clients have been asked to sign detailed consent forms moments before surgery without having a chance to read them properly. Even though it might be argued that cosmetic surgery is surgery that no patient needs there should be no distinction between essential surgery and cosmetic surgery when considering a surgeon’s obligations to disclose information as to the risks/benefits of surgery. National minimal standards guidelines actually suggest that no patient should be admitted for a cosmetic procedure on the same day as the initial consultation and the guide to good medical practice in cosmetic surgery issued by the Independent Healthcare Advisory Services in May 2008 suggests that there should be a two week cooling off period to allow patients to reflect on what they are letting themselves in for. My experience is that this often does not happen. It is clear that cosmetic surgery is a growth area for negligence claims and the situation is likely to persist until the industry is properly policed. As Rajiv Grover, spokesman for the Baaps, recently reported to the BBC, “it is essential that the public know who to go to when seeking a qualified cosmetic surgeon, but also, to be assured that the quality of their outcome will meet accepted standards and particularly to meet their own expectations”.
Clinical Negligence
CLINICAL NEGLIGENCE LITIGATION COSTS REFORMS - WHAT DOES THIS MEAN FOR CLAIMANTS? by Philippa Luscombe, Penningtons Manches LLP The last two and half years have seen widespread reforms in the approach taken to costs in clinical negligence litigation. Prior to April 2013, the majority of claims were funded either by the Legal Aid Agency (LAA) in substantial cases where the claimant had limited means or Conditional Fee Agreements (CFAs) - also known as No Win No Fee. In both scenarios the approach was relatively simple - did the case have sufficient merit to warrant proceeding? If so, the claimant would be eligible for funding, in most cases with no potential costs liability for themselves. If they won their case, they retained their damages in full.
F
rom April 2013, the LAA restricted their funding to claims for children seriously injured at birth or very soon after. The rules on CFAs changed such that successful claimants became responsible for paying a success fee and an insurance premium out of their damages. In addition, the rules on recovery of costs inter partes were substantially changed meaning that recovery of costs would become much more restricted and controlled, particularly in the case of smaller value cases.
Negative impact on access to justice To date, this has already had an impact on claimants’ access to justice and the clinical negligence market. Some firms decided that the combination of no longer be able to recover substantial success fees from defendants in successful cases; the restriction on their recovery of base costs; and the high costs of running the case and need for disbursement funding in these cases; they could not continue to do clinical negligence work profitably and withdrew from the market. Other firms who had historically done only personal injury (PI) work felt that the changes to PI costs meant that clinical negligence cases would be more profitable. So they entered the market offering to do the work without charge to claimants but without having any real expertise in this type of work. Claimants with complicated cases of limited value in damages started to find that either firms would not take their case on at all. Cases were being disputed and claimants were being advised to drop them as it was not costeffective to continue or that they were faced with relatively limited damages
that were severely depleted by deductions for costs. Those hit by the changes were some of those for whom claims were most important - the elderly and those who had lost parents or children due to suspected negligence.
Unexpected proposals to introduce fixed costs Without warning, there were further announcements this summer about proposals to introduce fixed costs for clinical negligence cases valued up to £250,000 - not just those valued up to £25,000 (as is the case in PI work). There are real concerns about these proposals and their impact on access to justice - particularly as it is too early to assess the impact of the first sets of reforms. Ultimately, fixed costs may well encourage the bad behaviour of defendants that we currently see. For example, denying liability until late in the day and causing repeated delays in the hope that the escalating costs will force solicitors to discontinue the case. There are also concerns about a knock on effect on patient safety. If clinical negligence litigation is one of the ‘checks and balances’ to help maintain clinical standards, will making it not financially viable to bring smaller claims mean more disregard of standards of care because the threat of litigation reduces? Will it mean that patients who have been negligently injured or lost a loved one will not be able to pursue a claim at all because of damages being limited? Will those who have a valid claim end up being undercompensated because of deductions from their damages? Within the legal market, will it result in firms competing on cost and cutting corners to do these cases as cheaply as possible?
In turn, this could mean that the clients may not have a good job done or may be encouraged to settle early and at undervalue. Or that more firms leave the market and the clinical negligence field ends up being comprised of a small number of large teams who have the economies of scale to do the work well and profitably?
‘Double whammy’ of reforms will not help the individual Any way you look at it, the ‘double whammy’ of the reforms means that access to good quality legal representation and the chance to obtain answers and proper compensation is being restricted. The Government set the rules and is also the biggest compensator for clinical negligence claims. These reforms only work in their favour and not for the individual who, through someone’s substandard care, has been left injured or bereaved. As a clinical negligence solicitor, I consider myself lucky that I have been able to make a real difference to people in achieving not just compensation but answers and apologies for them at the same time as running a successful business. It will be a sad state of affairs if we get to the stage where we can only help people with the most serious injuries because we cannot break even on lower value cases and people with legitimate cases without potential for winning high value damages are left without answers and redress. http://www.penningtons.co.uk/people/ k-o/philippa-luscombe/
Surrey Lawyer 19
Conveyancing
Uncertainty, The Only Sure Thing 2016 has all the signs of another uncertain year in the residential property market. With the pace of change even those in the profession and associated disciplines could be forgiven for missing the nuances that could significantly impact conveyancing in 2016 and beyond.
T
he housing stock shortage isn’t going to be solved overnight. The potential injection of properties resulting from the Autumn Statement Stamp Duty reforms will possibly generate a flurry of activity at the lower and mid range ends of the market. Of course, there’s also the spectre of Income Tax reforms announced in the July budget which could see many small Buy to Let investors exit the market. There’s a very real chance that they will be paying more in tax and mortgage interest than their rent will cover. So what if anything could these changes mean for our national obsession with house prices? Regardless of the short term impact - a lack of new housing, depressed interest rates and
increased lending are all ingredients that will lead to further price growth. Some observers predict up to 10% increase in the average house price year on year. The new Help-to-Buy ISA, launched on 1st December means savers can earn a 25% bonus on savings towards a new home. Limited to savings of £200 a month, this could mean the initiative will have a smaller impact on firsttime buyers. The return of 95% LTV mortgages, however, and the extension of the ‘Help to Buy’ mortgage guarantee scheme is bound to have a positive impact. In 2015 the average price of a starter home increased to an all time peak of £215,000. Regardless of other programs, if this trend continues, the “Bank of Mum and Dad” is likely to continue to become the de facto norm for deposits. Alternative funding sources reinforce the need for conveyancers to employ robust Client Due Diligence (CDD). VERIPHY, a detailed, risk based and auditable electronic AML product, and others like it, will provide economical and easily accessible solutions. A conveyancer’s experience and instinct, however, are still irreplaceable as part of a best practice approach. From a conveyancer’s perspective, the potential for growth in the overall volume of housing transactions informs staffing decisions and business predictions. Observers within the conveyancing search industry suggest that housing transactions could increase by a relatively conservative 4.6%. This may not seem like much, but since many conveyancers are still struggling with how to grow a new business pipeline, even a modest increase is likely to create an impact. Many firms find themselves trying to pursue more work yet worrying how to cope if they are successful. Providing a comprehensive and ‘best practice’ compliance service is frequently found to be at odds with the profession’s approach to pricing. By quoting comprehensive search costs firms continue to fear that they will appear expensive. Yet behaving this way they
20 Surrey Lawyer
make it more difficult to justify best practice compliance. For example, since Orientfield Holdings Ltd v Bird & Bird LLP [2015], a conveyancer who fails to undertake planning and infrastructure searches as part of a routine transaction could now be considered professionally negligent. It’s difficult to speculate why a respected firm didn’t appreciate the risks associated with failing to inform a client of all potential issues. They, however, are not likely to be the last. Thankfully, more and more firms are recognising the positive impact of transparent upfront quotations which include all required and recommended searches. QualitySolicitors Parkinson Wright’s underlying focus on service and the client’s best interests has reinforced the policy that clients always receive a “Best Practice Search Pack” as standard.
Faye Green: “Since the recent judgement on the Bird & Bird Professional Negligence case our search packs include Landmark’s Plansearch Plus as well as an Energy & Infrastructure search. We believe that the client’s interests are best served by providing them with all of the information available on every transaction”. In Orientfield Holdings Ltd v Bird & Bird LLP [2015] the High Court said that a solicitor had acted negligently for failing to warn their client about plans to build two schools in the same street as the client’s new property. Who wouldn’t want to know that planning consent had been given for a school, a nightclub, high-density housing, a fireworks factory, a wind-farm, a highspeed rail link or a fracking license near their new home? Furthermore, recent changes to planning policy mean applications which may have failed in previous years may now be granted - creating more potential for aggravation. It is a legitimate expectation of a client that their conveyancer will look after their wider interests in the transaction and alert them to issues that might affect their use and enjoyment of the property in the years ahead. Firms have voluntarily paid compensation to clients in cases where they failed to raise concerns which a planning report would have pointed out. Courts, it seems, have now taken this one step further. n Faye Green is a Partner and Head of Residential Property at QualitySolicitors Parkinson Wright. Andrew Stradling is Senior Legal Services Manager at Property Information Exchange and Brighter Law Solutions. Contact: andy.stradling@brighterlaw.co.uk 07775 444 402 Andy Watson is Channel Development Director at Property Information Exchange and Brighter Law Solutions. Contact: andy.watson@poweredbypie.co.uk 01189 769 479
Conveyancing
Hind legs and hindsight A few years ago I bought two miniature long-haired dachshunds that cost me the best part of £2000. They are gorgeous dogs and although they were expensive, they were bought to give us many years of pleasure.
S
adly, Tilly, burst a couple of discs in her back earlier this year, disabling her from the waist down. We took her to the "super vet" and she was operated on; she has had physiotherapy, acupuncture and ultrasound treatment but, at the moment, her ability to walk unaided is not looking promising. It was only when we paid the £8000+ vets’ bills that we realised the inadequacy of the "cheap" insurance policy that we had bought. Of course, 20:20 hindsight is an exact science but this has been an expensive lesson. Over the last couple of years, I have often wondered about the value of paying as little as possible for a narrow range of search information on a prospective property purchase. That property, particularly in Surrey, will cost a minimum of six figures, and possibly even seven. With taxes and fees costing tens of thousands of pounds, surely the biggest investment that we are ever likely to make should be researched to the most thorough extent possible? We live in an information age and data is readily available regarding schools, crime, public transport routes and myriad other aspects that may have a bearing on how someone will “enjoy” a property that they are looking to buy. As a solicitor, how are you advising your customer on the range of reports that they should invest in? The information gathered before a property is bought is as much of an investment as the property itself. For example, I would always advise that the purchaser be made aware of development history and proposals around the location of their desired property. It will indicate whether someone buying a property with plans to extend it (or change its use) might be successful based on what the planning department have agreed before; it will also reveal submitted plans for development of other properties and land in the near proximity. We recently discovered a major proposal for the development of green belt land not far from Redhill. Heads of Terms are in place between landowner and a major developer and whilst development isn’t imminent it
became very clear that this particular section of green belt would be the first to be sacrificed with an increasing demand for housing in the area. When that comes to pass, there are already outline plans for several hundred houses to be built to the rear of a property that, as it stands, has beautiful, unimpeded views over the Surrey Downs. Our “research”, as you can imagine, was most welcome! Only a tiny proportion of the population are knowledgeable when it comes to the conveyancing process and when a solicitor advises the need for "local searches", most simply nod sagely. I personally think that there is enormous scope to better inform the prospective purchaser and, at the same time, demonstrate the professionalism of how the law firm operates.
leading to the delivery of better, more thorough and relevant search information. In turn, their customers make the biggest investment of their lives confident they have carried out proper due diligence and that they will enjoy living in the home for years to come without fear. The search pack might have been a little more expensive but it will have been money very well spent. If only I had done a similar calculation when buying Tilly's insurance policy I wouldn't now be over £4000 out of pocket!
For more information please contact our office on 0843 659 4000 or email me at kevin.johnson@indexpi.co.uk
I’ve never wanted to be regarded as just a “supplier” but prefer a collaborative relationship with our solicitor clients and, even more importantly, with their own teams of support staff. We all have specific skills and experience in what we do and I would no more try to change the oil in my car than I would attempt the legal transfer of a property title. But I do know searches and welcome the questions that test this knowledge. At Index Property Information, we regularly recruit people with a legal background and so dovetail their experience with our knowledge of the search spectrum. We work as one with our solicitor clients and provide them with support and advice
Surrey Lawyer 21
Free Wills
Free Wills Month is an opportunity for both solicitors and the public Ten national charities are working together to promote Free Wills Month during March. The promotion is an opportunity for people to have their Will written free of charge by a local solicitor and at the same time to leave a lasting legacy. For solicitors the promotion is a fantastic opportunity to acquire new clients at no cost. The promotion involves a lot of local advertising, which includes participating solicitors’ details, paid for by the organisers. Solicitors average 25 new clients, though some set a lower limit while others regard it as an excellent way to add to their client list and take as many appointments as they can manage. Many charities depend on gifts left in Wills for up to half of their funding. The Free Wills Month promotion aims to encourage those aged 55+ to have their Will written or updated (though in the case of couples making mirror Wills it is sufficient if one has reached 55). Free Wills Month is a great opportunity for people to consider leaving a gift to one or more of the charities. There is no
obligation to include a gift, though the great majority of people using the promotion choose to do so. The Free Wills Month charities work exclusively with solicitors who are in good standing with the Law Society and who are regulated by the SRA. The Free Wills Month charities in the March 2016 campaign are Age UK, Arthritis Research UK, The Blue Cross, British Heart Foundation, Guide Dogs, MIND, the RNLI, Royal British Legion, The Salvation Army and Stroke Association. The charities pay a set fee for “simple Wills” with the drafting solicitor determining what qualifies as a simple Will. If a Will is unduly complex the solicitor can ask the client to cover the cost between the simple element of the Will and the extra service required.
Recruitment of solicitors for Free Wills Month is scheduled to be completed by the end of January with the promotion running from Tuesday 1st March to Thursday 31st March inclusive. Appointments have to be made during March, though the actual appointments can take place any time afterwards to suit clients and solicitors. Solicitors interested in taking part in Free Wills Month should visit the campaign website at www.freewillsmonth.org.uk or call 0345 686 4309.
The importance of charitable legacies and how you can help Gifts in Wills form the foundation of the UK’s best-known and best-loved charities. Indeed, without income from legacies, many charities would cease to exist. In 2014 legacies contributed over £2.4 billion per annum to the sector§. Yet this sum is generated by only 7% of the UK public. While this demonstrates the fragility of legacy income, it also reveals its potential. If the rate of legacy giving rose to just 11% of the population, this would create an additional £1 billion for charities. Remember A Charity was created to realise this potential. The campaign works to do what no single charity is able to achieve on its own - to change the perceptions of the nation towards charitable legacies, so that over time, legacy giving becomes the norm for the many, rather than just the few. Remember A Charity was formed in 2000, and now has over 150 member charities, working together to achieve this aim. With 74% of the UK population supporting charities in their lifetime, most of your 22 Surrey Lawyer
clients will have charitable causes that are close to their heart. However, the reality is that most people do not realize that they can use their Will to take care of not just their family, but of everything else that is important to them. The good news is that, research commissioned by Remember A Charity in 2008 revealed that 35% of people would consider including a gift to charity after providing for their family and friends in their Will.* Solicitors play a key role in helping clients understand all the options open to them. Of course, family and friends must come first. But by simply mentioning the option of supporting their favourite causes, more clients will consider supporting good
causes in their Wills. It is only with your help that we can give donors an opportunity to choose to do something amazing, and a small increase in the number of charitable gifts in Wills will make a huge difference to charities - and donors alike. To find out more about how you can get involved and support the campaign, whilst at the same time promoting your firm, please visit rememberacharity.org.uk/advisers §
Legacy Foresight 2015 * TNS Social 2008
Free Wills
Did you know that just mentioning a charitable gift to your clients could double the amount raised for good causes? We’re Mind, the mental health charity. We believe no one should have to face a mental health problem alone. We’re here to make sure anyone with a mental health problem has somewhere to turn for advice and support.
M
ind is the leading mental health charity in England and Wales and gifts in wills are vital to fund our work. Last year 65,000 enquiries were answered by our helplines. Our local services helped over 375,000 people. However, we can only continue our work because of public support, events, donated goods sold in our shops, donations and gifts in wills. Our 2015 survey showed that 40% of our supporters would consider leaving a gift, but the number of people who actually make a gift is far lower. This isn’t just a challenge for Mind, because only 7% of wills end up including a gift to any charity. A recent study* found that people prompted to think about charitable giving were twice as likely to include a gift. Clients asked if they were passionate about any good causes were three times more likely to make a gift in their will. And the value of their gifts was double the normal amount. This is why I’m asking for your help.
You could help double the amount raised for charitable causes. mind.org.uk/wills
Douglas Flood, Mind Wills Team PS - Mind is part of the consortium of charities in Free Wills Month in London, this March. Clients using the offer have no obligation to make a gift to any charity in the consortium, or outside it. Although we of course hope that many will see this as a chance to help us. *Behavioural Insights Team, Cabinet Office 2013.
Surrey Lawyer 23
Education
SLS 2015-2016 CPD Programme Diary Dates No.
Day
Date
Area of Law
Course Title
Speaker
Venue
1
Wed
25/11/15
Private Client
International Trusts
Jo Summers
Denbies
2
Wed
02/12/15
Property
Freehold Covenants in Practice
Peter Reekie
Denbies
3
Wed
20/01/16
Property
Conveyancing - are you compliant?
Denis Cameron
Denbies
4
Wed
27/01/16
Private Client
Elderly Client Assets & The Care Act 2014
Cate Searle
Denbies
5
Wed
03/02/16
Management
Compliance Update for COLPs, COFAs & MRLOs Matthew Moore
Denbies
6
Wed
24/02/16
Property
Property Update 2016
Richard Snape
Denbies
7
Wed
02/03/16
Private Client
Capital Tax Update
Chris Whitehouse
Denbies
8
Wed
16/03/16
Family
Hot Topics in Family Finance
Mena Ruparel
Denbies Denbies
9
Wed
20/04/16
Property
Six Problem Areas in Property Transactions
Hannah Mackinlay
10
Wed
04/05/16
Private Client
Avoiding Problems on Grant Applications
Keith Biggs
Denbies
11*
Wed
25/05/16
Management
Management for Support Staff
tbc
tbc
12
Thur
16/06/16
Property
Caveat Emptor or Seller Disclose? A Practical Guide to Searches/Enquiries
Stephen Desmond
Denbies
13
Wed
29/06/16
Private Client
Private Client - Recent Developments
John Thurston
Denbies
14
Wed
14/09/16
Company & Commercial
Company & Commercial Update
Keith Lewington
Denbies
15
Tue
27/09/16
Family
Pensions on Divorce
David Lockett
Denbies
16*
Wed
05/10/16
Management
Management for Practice Managers
tbc
tbc
Seminars being held at Denbies Wine Estate in Dorking will be from 2.00pm - 5.15pm and will take place in the Ranmore Suite - 3 hours CPD.
22/09/16 - Private Client Conference - tbc- 6 hours CPD. 20/10/16 - Conveyancing & Land Law Conference - tbc - 6 hours CPD.
Course Fees: £126 inc VAT (members) or £252 inc VAT (non-members) Season Ticket: £100.80 inc VAT for bookings of 4 courses or more paid in advance * Seminars 11 & 16 - course title and venue will be confirmed nearer the time.
24 Surrey Lawyer
Please check our website at www.surreylawsociety.org.uk/terms for the Terms & Conditions before booking.
Cyber Terrorism
Cybercrime: How well is your client data protected? Information held by law firms is increasingly becoming a target for hackers. This is hardly surprising, given the sensitive information often entrusted to law firms by their clients. Hackers’ motives include corporate espionage, IP theft, access to market-sensitive data, blackmail and extortion. Law firms should already be alive to the risks but the issue needs to be further up the agenda, as the threats get ever more sophisticated and the stakes get higher.
L
aw firms of all sizes are increasingly being targeted by cyber-attacks. This may take various forms, including “spear phishing” (a targeted and personalised e-mail scam containing a malicious payload) and exploitation of software flaws. Gone are the days when the most sophisticated abuse of a law firm’s IT systems was a scam e-mail from a fake Nigerian general. Third party service providers to corporate clients are often viewed as softer targets than the corporate targets themselves the major attack on US retailer Target in 2013 was achieved through a spear phishing e-mail to the retailer’s air conditioning contractor which in turn had access to part of Target’s systems - and law firms are another example of this indirect attack vector. For example, if a hacker knows that a boutique law firm is regularly subcontracted by a magic circle firm to conduct the IP due diligence on major M&A deals, then gaining access to that law firm’s systems (and in turn to a data room treasure trove of information on a
Photo: Jon Bartley
PLC) may prove easier, and more fruitful, than attacking the PLC directly. The ongoing consumerisation of business technology may exacerbate the security threat. As law firms embrace concepts such as “bring your own device” (BYOD), or at least allow lawyers to download personal apps onto work smartphones, the risk of malware residing on a device that accesses client data increases. Clients will increasingly demand more collaborative approaches from their lawyers, including the ability to remotely access, and contribute to, draft documents and view WIP and billing data, providing legitimate routes through the law firm’s perimeter fence for third parties whose access credentials could be compromised. The consequences for law firms of failing adequately to address the threat are significant and becoming more so. Firms face reputational damage, potential claims from corporate clients whose data is stolen and regulatory action by the SRA. Also, under the Data Protection Act, failure to apply appropriate security
measures to protect personal data can result in a fine of up to £500,000 and damages claims from affected individuals. However, the Data Protection Act is soon to be replaced by a new EU Regulation. This will impose an obligation to notify the Information Commissioner and affected individuals of data breaches and increase the potential fines to between 2% and 5% of turnover (the cap has yet to be finalised at the time of writing). It will also extend liability to entities that merely process personal data on behalf of clients. All law firms should ensure an ongoing commitment to cyber security. This might include assessment of systems against the Government’s Cyber Essentials scheme, the Standard for Information Assurance for SMEs (IASME) and/or ISO 27001. Jon Bartley, commercial and technology partner, Penningtons Manches LLP. http://www.penningtons.co.uk/people/ a-e/jon-bartley/
THE MAJORITY OF DATA BREACHES ARE CAUSED BY HUMAN FACTORS Gartner report that over 50% of data breaches are caused by users and predict that within 5 years over 90% of such leaks will be user created so firms need to be acutely aware that the greatest weakness in their systems is the human factor. Our staff are busy billable people who have a limited mental budget available for managing security requirements or remembering multiple complex
passwords. IT need to work with other people to develop programmes of awareness and introduce new practices into the firm. If the majority of data breaches are caused by human factors, how many firms engage the HR Department in their Security Incident Reviews? Anecdotal evidence suggests very few firms do this and yet re-education and behavioural change should be at the forefront of enhancing data security. We cannot simply add technology and process to
enhance security. We must create and establish cultural change. HR or Training Departments are usually the custodians of behavioural change in many firms and engaging them early in the development of data security solutions is imperative. Do not regard data security as an IT issue. Make it a firm wide factor. Simon Ratcliffe - Consultant Advanced Computer Software Group For more information please contact: 0844 815 5575 Surrey Lawyer 25
Book Review
THE COMPANY DIRECTORS Powers, Duties and Liabilities - 12th edition by Peter Loose, Michael Griffiths and David Impey JORDANS PUBLISHING LIMITED
WINE OF THE SEASON with Conal Gregory, Master of Wine
ISBN: 978 1 84661 971 7 Available as an ebook www.jordanpublishing.co.uk
AN ESSENTIAL REFERENCE ON THE ROLE AND RESPONSIBILITIES OF THE MODERN COMPANY DIRECTOR An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers If you are a company director or a practitioner in company law, here’s a book you should make a point of purchasing. Recently launched in a new twelfth edition from Jordan Publishing, ‘The Company Director’ is a long established, classic work, which at the same time, is bang up to date. It is only a little over three years since the last edition appeared and significant changes from the Companies Act 2006 have taken place, as the three authors, Peter Loose, Michael Griffiths and David Impey remind us. Also, Parliament has just passed the Small Business, Enterprise and Employment Act 2015 which adds a new dimension to corporate governance. Now established as a definitive work in this field, “The Company Director” presents in one convenient volume a detailed explanation and clarification of the powers, legal responsibilities and, yes, the liabilities of executive and non-executive company directors within a continually changing legal landscape, where, as the authors also point out, some uncertainties remain as to what the law really means! The book covers a number of other significant changes. The provisions of the Small Business Enterprise and Employment Act are thoughtfully discussed, together with the recently revised rules on corporate security… the new mechanisms for making complaints to the Company Names Adjudicator… and the most recent changes to the company buy-back regime. The most recent case law is also examined in detail. Indeed, the book excels as a work of reference to virtually everything a company director needs to know. The first two chapters outline the history and nature of companies past and present, including commentary on ‘the corporate veil.’ Subsequent chapters deal in detail with such matters as the appointment, powers, duties and liabilities of directors, plus shareholder relations, terms of service and meetings. Also presented is a clear and detailed discussion of the Bribery Act 2010 and the Corporate Manslaughter and Homicide Act 2007 (very topical in view of the recent Volkswagen debacle). And then there’s the final chapter which contains as succinct a summary as you’ll find anywhere on the oft referred to issue of corporate governance. This contains the UK Corporate Governance Code, a very useful checklist for board effectiveness, and more besides, including a comment on corporate social responsibility (CSR). CSR is described as ‘an up and coming buzz phrase’ in the opinion of many, except possibly avid readers of the Harvard Business Review, for example, who may remember the concept discussed as far back as the 70s and probably before; so, as some might say, less up and coming than old hat. Be all this as it may, this book is described quite rightly as ‘a highly respected tome… heavy on the practical side of the law’ and therefore an essential research tool for a range of professionals, from barristers and solicitors to company secretaries and accountants, as well as, of course, company directors and corporate law students aiming for a first. The law is stated as of July 2015.
26 Surrey Lawyer
Cold days call for well-structured wines and Maranaga Dam’s trio of grapes from Australia’s Barossa valley is spot on. The predominant Viognier vine gives a peachy elegance, Roussanne the depth and finesse and Marsanne the richness. Made at Torbreck winery, named after a Scottish forest, this dry white is delicious with turbot and Asian cuisine and the 2014 can be kept for two to three years. £15 (Marks & Spencer).
The vineyards of Marcillac in Aveyron, south-west France had almost disappeared through vine pest, war and rural depopulation. The Teulier family of Domaine du Cros has continued in the iron-rich, hilly country to make a deep rich robed red from the Servadou vine, known locally as Mansois. The wild fruit berry character comes with a hint of spice. The 2014 is perfect with grilled meats. £7.95 (IEC Wine Society). Sponsored by NFU Mutual Bespoke, high-value home insurance tailored to protect everything you value, including art, antiques, fine wine and more.
Visit www.nfumutual.co.uk/bespoke for further information.
Travel
Jump into a 2CV Adventure Once in a while a completely new concept arrives and 2CV Adventures is just one of those. Born out of a desire to bring the fun back into motoring, 2CV Adventures has 16 ‘tin snails’ prepared and ready for a series of events and corporate occasions. Based in Cranleigh, Surrey, 2CV Adventures has already provided the fun and adventure for a 50th Birthday party in Southern Spain for a city executive from Lymington, as well as a week’s driving for key ‘mixologists’ from Grand Marnier. Starting in Spain, Grand Marnier used the occasion to thank its top barmen and brand ambassadors as well as a selling tool to introduce them to new vintages and marketing ideas. The trip included a three day visit to the Grand Marnier Chateau near Cognac. For the 50th Birthday Party, 2CV Adventures, created the route and provided roadbooks, selected and booked the hotels, organised the lunches and evening meals, a variety of entertainment, the cars and support plus some competition to give the event an edge.
This entertainment challenge was successful rolled out at the recent Silverstone Classic Weekend where more than 200 people took part in the ‘Tin Snail Challenge’. Six cars were also used to transport the racing drivers and their key team members around the Silverstone circuit. Each car was equipped with an autograph book which will be auctioned for charity later this year. As well as providing the corporate and incentive events, 2CV Adventures organises its own tours and rallies, from a long weekend tour in Northern France to the French Connection Rally from Monte Carlo back to the UK. All is revealed on the website www.2cvadventures.co.uk
Setup by John Brigden and Toby Kilner in January 2014 2CV Adventures introduces the ultimate ‘Arrive and Drive’ concept where everyone has the same spec vehicle in identical colours to add to the fun and spectacle. John Brigden told us “While the 2CV was once a symbol of an alternative way of life, it has developed into an icon of the quirky French motoring of the period. Its eccentric styling, unique ride and minimal interior have made it the personification of the long lost age of motoring simplicity and innocence when driving brought a smile to your face. We want to introduce this to a new generation of drivers who spend their motoring lives in push button, electronics aided, padded ‘cells’, which are as far removed from the real world as possible. With the 2CV you not only enjoy driving again but are fully engaged in the experience.” “The 16 vehicles are available for corporate events, incentive weekends, team building and parties where we can put on our Tin Snail Challenge in which participants have to negotiate a slalom course with a reverse steer car - against the clock!” Surrey Lawyer 27
Legacies
Canine Care Card Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved fourlegged friend without an owner. Thankfully, Dogs Trust, the UK’s largest dog welfare charity, offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, it also helps to ease the minds of friends and family during what is already a distressing time. Over the past 12 months, Dogs Trust has taken in a whole host of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes. Two of these such dogs were devoted duo, nine-year-olds Rosie and Beth who arrived at Dogs Trust Manchester when their owner sadly passed away. When they arrived at Dogs Trust Manchester, Irish Setter, Rosie, and Shih-Tzu Cross, Beth were missing their home comforts and hoping to find love again with a new owner. Thankfully, Dogs Trust Manchester was able to provide the adorable duo with a home away from home while they awaited their furrytale ending. Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving home. After being cared for by Dogs Trust Manchester, Rosie and Beth were soon rehomed and have since begun settling in to life with their new family.
28 Surrey Lawyer
Adrian Burder, Dogs Trust CEO says, “Thanks to Dogs Trust’s Canine Card Card scheme, dogs in need of a new home are given a lifeline meaning that Rosie, Beth and many dogs like them are able to get a second chance at happiness and bring joy to a new family. If you decide to become a Canine Care Card holder, we will issue you with a wallet-sized card. It acts in a similar way to an organ donor card and notifies people of your wishes for your dogs, should anything happen to you. Dogs Trust also strongly recommends that you mention the care of your dog in your Will. That way, there can be no confusion about your wishes.”
Legacies
Dr Julian Harriss, medical director on how legal professionals can help personal injury clients with brain injuries “I have the best job in the World!” - this how I introduce brain injury rehabilitation and my role as medical director of Queen Elizabeth’s Foundation for Disabled People (QEF). In what other specialty can a doctor be guaranteed patients who get better and make meaningful recoveries? But what role can legal professionals play in helping people to recover after a brain injury? The whole purpose of rehabilitation is to regain one’s role in society, which could be employment, education, or raising a family. I would argue that support to regain a role in society is just as important as early medical care. We are
Photo: Dr Julian Harriss world-leaders in stopping people from dying, but it’s sometimes a struggle to help them get their lives back together. We can deliver bespoke rehab programs that have excellent outcomes, but this is best sooner rather than later, as ‘time is brain’. The message I’d like to go out to the legal industry is that frequently it is only through considered use of a legal settlement that a client can return to a career or family life. Experienced lawyers can often make the difference between medical survival and a meaningful, functional recovery.
To find out more about QEF Neuro Rehabilitation Services, or to arrange a meeting with Dr Harriss, please visit www.qef.org.uk or email info@qef.org.uk
Round Table Children's Wish In the late 1980’s, a group of Round Table members got together to make a very poorly child’s wish come true. The child's dream was to go to Disney World in Florida, so the group embarked on a series of fundraising events to pay for his trip. This would become the first 'wish' they granted. Spurred on by the joy they had given the child in his last months of life, they continued to fundraise and grant wishes. Children suffering from cancer, genetic illnesses and disabilities enjoyed thrilling holidays, met their favourite pop stars or received longed-for toys and other gifts. In 1990, Round Table Children’s Wish became an official charity. We now work in partnership with Round Tables across Britain and Ireland to grant ‘handcrafted’ wishes
for children with life-threatening conditions. Children like seven year old Joey, who was found to have a tumour behind his eye during a routine eye test. Following his gruelling chemotherapy treatment, we granted rugby fan Joey's wish to be the Welsh mascot at the Millennium Stadium in Cardiff and lead his heroes onto the pitch. Legacies are hugely important to our continuing work. And as legal professionals you can be immensely helpful in explaining the simple but very valuable process of leaving us a one-off donation, a longer term legacy or even an asset such as property, land or a specific item. For more information on Round Table Children's Wish, or if you would like to adopt us as your firm's chosen charity, please telephone: 01202 514515 or contact Director Karen Winchcombe at: karen@rtcw.org
Photo: Abigail Jones and family
A wish came true for one little girl called Abigail Jones. Abigail, from West Cross, Swansea is deaf and has chronic lung disease, she was sent by Round Table Children's Wish to Disneyland Paris with money donated in memory of Vaughan Harris. Mr Harris, from Lingfield in Surrey died in September 2014, just two weeks after being diagnosed with pancreatic cancer. The father-of-two was Round Table National President in 2000 to 2001 and National President of its associated 41 Club in 2011 to 2012. During his presidencies he raised £150,000 for Round Table Children's Wish.
Surrey Lawyer 29
Legal News
MANAGING THE DARK SIDE OF ARBITRATION by Derek Wood QC
Resolving legal disputes by arbitration rather than by court proceedings has many well-advertised virtues. It provides for due process before an impartial tribunal leading to an enforceable award which is as much binding on the parties as a judgment by the court. If it is a domestic English or Welsh arbitration, the Arbitration Act 1996, in contrast with the increasingly bureaucratic Civil Procedure Rules, empowers arbitrators, sitting alone or in a panel of three, to adopt procedures suited to the circumstances of the parties and the case which are far more flexible and adaptable than are available in court. If it is an international arbitration it will in all probability be conducted under rules or protocols which are equally flexible. The parties - or an institution on their behalf if they cannot agree - will choose the arbitrator. He or she is likely to be a respected person who is knowledgeable in the area of trade or business from which the dispute arises, and need not be a lawyer. The parties do not have to wait anxiously to find out the name of the judge who is going to try their case, only to be disappointed to find that he or she has no familiarity with the subject-matter - or to be told at the last minute that the case cannot be listed for hearing because of the pressure of other court business.
What is the problem? In short, it is time and cost. This is the dark side. Many arbitrations, despite the liberating measures in the 1996 Act, have turned out to be court litigation by another name. The whole laborious process of statements of case, disclosure of documents, expert meetings and exchange of witness statements rumbles on. Among litigation lawyers old habits die hard. And there is the extra mouth to feed: the arbitrator, with his or her fees and expenses. There is no taxpayerfunded judge sitting in taxpayer-funded premises in an arbitration.
An arbitrator will be engaged with the case from the start and will be monitoring it throughout. Dates for case management or final hearings can be relied upon. If the case proceeds to an oral hearing, that will take place in private, at a place which suits the parties. Much of the business will be carried on by e-mail or telephone or video link. Ultimately there may be no need for an oral hearing. The tribunal’s decision can be made on the basis of documents only, including the parties’ written submissions. The rules of court, by contrast, do not permit any case, however much it may turn simply on agreed facts or documents, to proceed without an oral hearing.
Arbitrators’ fees are and always have been a conundrum. The principal rival models are hourly rate versus a percentage of the amount in issue. Neither is entirely satisfactory. All experienced lawyers know that there is no correlation between the time it takes to disentangle a dispute and the amount of money at stake. Both systems of charging can lead to high fees.
Opposing parties who find themselves in arbitration rather than in court are typically there because of an arbitration clause in a contract or similar document requiring them to refer their disputes to this method of resolution. Arbitration agreements regularly appear in standard form contracts. Yet, despite the merits of the process, many express dissatisfaction with it. Those who choose arbitration voluntarily, without a prior arbitration clause in place, are hard to find.
30 Surrey Lawyer
The arbitration community is bringing forward a new answer to these problems, exploiting the opportunities opened up by the 1996 Act but avoiding the pitfalls: the fast-track fixed-fee arbitration. Falcon Chambers Arbitration service (FCA) has produced a model, focusing on members’ expertise in real property disputes, which is not tied to the value in issue and eliminates hourly charges. It offers parties in dispute different options, depending on how much they wish to spend and how quickly they want the dispute resolved. The eye-catching features are the 20-day and 40-day arbitrations, to be determined, if junior counsel is appointed as arbitrator, for fixed fees of £3,000 and £6,000 respectively. The 20-day arbitration is
conducted on documents-only contained in a single bundle of not more than 350 pages, including the parties’ submissions. The arbitrator undertakes to use best endeavours to deliver an award within 20 days of receiving the bundle. The 40-day arbitration may involve up to three 350page bundles, and there may be a hearing. The 40 days run from delivery of the bundle or the close of the hearing. If Queen’s Counsel is appointed the fee will be higher, but nevertheless fixed. An extra fixed fee is payable if the arbitrator has to deliver a separate award on costs. The system is supported by a simple arbitration agreement entered into by the parties and their selected arbitrator, and by straightforward single-page standard directions, which can be amended to suit the case. Because the 1996 Act applies, party-autonomy predominates, subject to the underlying obligation of the arbitrator under section 33 to ensure a fair and effective disposal of the case; and elaborate protocols and procedural paperwork are dispensed with. There are fail-safe measures which can be taken if it becomes clear, as the case progresses, that the procedure needs to be reviewed. The model has attracted wide interest. It has the potential to restore the reputation of arbitration as a speedy, cost-effective method of dispute-resolution, incentivising everyone involved in the process to bring cases to an early conclusion at a sensible cost. Derek Wood is a member of Falcon Chambers, a Fellow of the Chartered Institute of Arbitrators and a Chartered Arbitrator.
Family Law
Same sex parents access rights to their child - is clarification around the corner? In early December In the matter of B (A child), was heard in the Supreme Court. The case involves an estranged lesbian couple and their seven year old child who was conceived as a result of IVF in 2008. The parents’ relationship broke down in 2011 and the child was taken to Pakistan by her biological mother, who is her sole legal parent, in February 2014. The other woman considers herself a “de facto” parent and sought to have the child made a ward of court and returned to the UK. This case serves to highlight the vulnerability of parents, of any sex, if they are not married at the time the child is born. If the parents are not married when the child is born, as in this instance, only the mother automatically has parental responsibility. The case stresses the importance of ensuring one of the routes to parental responsibility have been followed. Whilst there are many options available to parents these are not always taken, in this instance the nonbiological parent hadn’t filed a court order, married the biological mother or become civil partners, nor had she formally adopted the child. Previously on appeal it was outlined that “it has to be recognised that the respondent has always been [the girl’s] primary carer, that the appellant had not been part of the household for some time before [the child and her biological mother] left for Pakistan.” The Children Act’s first principle “the best interests of the child” will be tested again in the Supreme Court and in this instance the non-biological parent’s distance from the child may impede a clear judgment that can be widely relied on going forward. If it is held that the retention or removal of the child was wrongful then article 10 of the Brussels
II Regulation enables the English court to retain jurisdiction even with a country outside of the E.U. However, the difficulty arises if the child has acquired a new habitual residence in the country to which they have been removed, in this case Pakistan. The judgment in this case will serve as an important decision in a fast changing area of law.
Despite a number of English court cases presiding over habitual residence, there does not appear to be any clear guidance. This clarity is much needed, and practitioners now eagerly await to see whether that is what this judgment delivers. Joanna Farrands is a partner and Helen Habershon is a senior associate in the family team at law firm Barlow Robbins.
Previously consent of both parents with parental responsibility was necessary in order for children to lose a pre-existing habitual residence. Therefore, proceedings could be commenced for children that had been abducted to another jurisdiction even if there was a time lapse before the case was pursued. Currently, habitual residence of a child is a question of fact in each case as opposed to being a legal question. The current legal position is that one parent neither wanting nor sanctioning the move will not necessarily prevent the child from becoming habitually Photo: Joanna Farrands resident somewhere else.
Photo: Helen Habershon
Autism & the urgent need for Advocacy Support I am delighted to confirm that we managed to raise £1,839.67 for the advocacy services offered by the Surrey Autism Support Centre in Godalming. This article was written by our very own Membership Administrator, Elaine Jacobs, who knows only too well how hard it is to navigate through the minefield that is the Care System. It contains much food for thought. The images show some of the group who will benefit from the money that we have raised. Centre Manager Kate Nixon was delighted when she first heard about our fund-raising on their behalf. She told me ‘This is brilliant. We are so grateful to your members because advocacy services are the hardest part of our support work to get funded. This will make a real difference to the group.’ Like most of us, I used to take it for granted that I was able to make decisions about what I wanted to do, I could find out what my options were by accessing available information and services and I had a fair idea of what my rights were. As the parent of a child with autism, I knew my son’s likes and dislikes, I could make sure to try and avoid situations that would cause him stress, and could give him the extra time he needed to process his thoughts so he could come up with an answer to a question, or re-jig the question if I knew he was struggling. These things I also just did without questioning, after all we had already had 18 years to work out a system that somehow worked for us! Then my autistic child became an adult with ASD (a change in the naming to a spectrum disorder as they began to realise it encompasses much more and many more people than originally thought) but still with the same problems, anxieties and frustrations and now a whole adult world to face but without me always being there as his voice, needing to be more independent, taking considered decisions, accessing information and working out
what his rights are. But where to start? This is where the work of organisations like the Surrey Autism Support Centre is so important. They are able to provide a safe, non-pressurised environment, totally independent from service providers, parents/carers or public authorities. They cover a lot of important areas - from running self-advocacy groups where they are encouraged to speak up for themselves, providing someone to attend appointments with them to help put their views forward or just helping them fill in a booklet to take with them to explain the things they cannot.
skills are not learnt intrinsically by children with autism and may take years or even decades to develop so the earlier they start the better. Working alongside schools, social skills groups, youth and holiday clubs, work preparation sessions, to name just a few, all contribute in making them feel good about themselves and can help tremendously in finding their ‘own voice’.
Self-advocacy, the ability to speak for yourself, and selfesteem often go handin-hand but these
Surrey Lawyer 31
Management
YES, A BEST - OF - BREED DOCUMENT MANAGEMENT SOLUTIONS IS AFFORDABLE FOR GROWING LAW FIRMS! by Jon Wainwright, Sales Director, Ascertus Limited
Time and again I hear lawyers at growing law firms wax lyrical about the piles of paper that they have to deal with in their offices, making it near impossible to find information in a timely manner. Often, it’s akin to finding a needle in a haystack. And it’s especially irksome to fee-earners who come from larger law practices and so are accustomed to access to productivity enhancing tools such as document management solutions.
T
he frustration is compounded in the current digital and mobile business environment, where firms send and receive information on matters and transactions in all manner of formats - email, electronic files, paper documents, SMSs and voice messages. Consequently, due to the volume of inbound and outbound information as well as the lack of standardisation of formats and key words, document and email management is presenting a huge challenge for the smaller law firms. Manually documenting matter-critical information in an easily accessible and user friendly manner and in compliance with continuously evolving regulation is extremely difficult, time-intensive and costly. Despite the obvious benefits of document management, the myth that best-of-breed systems are only suitable for large firms rampantly persists in the legal sector. The reality couldn’t be farther from the truth. In fact, growing firms have the most to gain from the efficiency and productivity benefits such systems deliver.
Dispelling the myths Perhaps the biggest misconception among the smaller firms is that best-of-breed document management systems are unaffordable. To the contrary, today there are a plethora of technology and commercial options available to firms. Foremost, firms don’t need to purchase these applications directly from software vendors. A better approach is to acquire tailored systems from solutions providers who - due to their close association with software vendors - have developed propositions especially for smaller law firms that substantially reduce the cost of ownership and the need to employ internal IT resources. In doing so, they remove the typical obstacles that prevent law firms from deploying best-of-breed document management systems.
32 Surrey Lawyer
For instance, gone are the days when the perpetual licensing model was the only commercial arrangement available for software purchase. Today, there are a variety of flexible licensing options including annual, subscription, usage-based and software as a service (SaaS). In fact, a lawyer can have access to document management system, iManage Work, for less than the cost of an individual's monthly mobile phone rental! From a technology standpoint, in addition to the traditional on-premises system, firms have available to them the privately hosted model. This allows organisations to leverage all the benefits of cloud technology, but securely. In this model, firms install their own instance of software, run on versions that best fit their needs and have complete control over their data and documents. No databases are shared or accessible by any third parties or external organisations. Furthermore, a privately hosted document solution greatly improves accessibility and collaboration in an increasingly mobile environment. The technology is advanced and best-of-breed systems allow secure, mattercentric document management capability on the iOS, Android and Blackberry platforms. This method of application deployment also greatly reduces risk, offers in-built disaster recovery and significantly reduces the burden on IT, administration and support.
Approach to adopting document management solutions Like for any application, firms looking to adopt a document management solution, must first devise a strategy. There are some fundamentals to consider. Determining what content exists and where it resides - email inboxes, shared folders, physical files - is crucial. Firms should think about creating a seamless business environment in the firm by integrating already deployed technologies with the new document management system.
Also, it’s wise to institute the internal document management policies right up front with reference to how documents should be stored, for how long, who can access them, what folder structures are preferred and such. Due to the complexity of both the technology environment and transactions, a matter-centric approach to document management is the simplest and most intuitive. This method is also conducive to collaboration and scaling the solution as the business grows. Mobile working is now pervasive, so it’s worth assessing the type of devices that are likely to be used and on which platforms (e.g. Android, iOS) so that these requirements can be accommodated as the solution is configured. This is critical to ensuring that the document management solution is able to switch seamlessly between ‘in office’ and ‘on the road’ usage. Thirsk Winton, a North-East London law firm is a good example of a growing firm that has cost-effectively deployed a best-of-breed document management system. A firm that was genuinely ‘drowning in paper’, today has a document management function that is ‘routine’. The firm has integrated its financial management software and Microsoft Office with its document management system too, making the latter the primary storehouse and knowledge centre for all client and matterrelated activity. Let alone anything else, simply undertaking the cost of property to house paper, which is then inaccessible to the business is sheer imprudence and a waste of financial resources. Technology systems exist that allow firms to devise tailored and innovative paper flow processes - from creation and maintenance through to destruction and archiving of electronic matter files. Aside from business efficiency, a well-structured document management system aids good client service too. www.ascertus.com
Management
Managing partner performance and reward As competition between law firms for the best talent becomes more intense with firms striving to achieve high performance to gain a competitive edge over their rivals, the manner in which firms manage their partner performance and reward becomes all - important. Partner reward tends to be driven by market considerations, because as work levels pick up firms which are unable to offer competitive rewards in their markets - risk losing their outstanding people; and - are unable to recruit the best. For these reasons it is vital that firms should regularly review the way they reward their partners’ performance to reassess whether their current reward arrangements are assisting them in achieving their objectives. The effect of the market - driven imperatives to firms to both outperform their rivals and to offer more competitive rewards to their outstanding people has over a number of years pushed many (particularly larger) firms to move away from traditional lockstep, where advancement and reward are based on seniority and where a partner climbs a ‘lockstep’ over a number of years and then remains on a plateau where profits are shared equally, often until retirement. In place of traditional lockstep, firms have implemented performance related reward systems, often called ‘modified lockstep’ which aim to enhance a firm’s competitive edge. The trend away from traditional lockstep to performance related reward is now accelerating sharply and some of the reasons contributing to this are that traditional lockstep is now recognised to have a number of shortcomings, including - not fairly matching reward to contribution; - not measuring relative worth between partners; - being inflexible and not capable of responding to the strategic needs of a firm; and - demotivating and disincentivising the best performers. On the other hand, performance related reward systems tend to - have a strong emphasis on merit and performance across a broad range of criteria; - determine the relative contribution of each partner with respect to other partners; - help to differentiate between high and average performers (underperformers should be dealt with separately and outside a reward system); and - can more fairly match reward to contribution.
Those firms which have implemented well designed performance related reward systems and are managing them well have found that this form of reward structure can benefit a firm in a number of important ways by - helping to enhance a firm’s competitive position in the talent market; - creating a culture of high performance; - encouraging the sharing of work and clients within a firm; - promoting greater motivation and the development of new skills, experience and capabilities; and - overall advancing the achievement of a firm’s strategic goals. To achieve such potential benefits from a performance management and reward system, a law firm must ensure that its people know - in which key areas their performance will be measured, - their performance goals; - how their performance rates against these goals; and - how their performance will be rewarded. The development of broadly - based performance criteria designed to advance the agreed goals of a firm and to enhance its competitive edge is a fundamental prerequisite for implementing an effective performance related reward system. Examples of areas of performance for such defining criteria will often include - Being an effective business developer - Developing and maintaining profitable client relationships - Financial management (particularly enhancing profitability and cash flow, but not just based on personal billings) - Managing people (including staff, colleagues and oneself) - Internal sharing of work and clients and co - selling - Maintaining relationships with colleagues - Enhancing technical abilities, skills and other personal attributes - Management and leadership - Managing special projects - Other criteria designed to help a firm achieve its agreed objectives Partners should always be involved in deciding the criteria to define performance because they will then feel that they ‘own’ the reward system and give it their wholehearted support.
Also central to the success of a performance based reward system are the requirements that - An individual’s or a team’s performance can be accurately and objectively measured; and - the process of making awards related to achieving performance goals is managed in a way which is transparent and builds trust and confidence in the system and in the people who are managing the process. Arguably one of the most effective and objective ways to measure performance in a firm is to use some form of 360 degree or all - round feedback whereby colleagues provide their confidential feedback on each other across the range of criteria being used to define performance. Performance development reviews (PDRs) using such feedback can then be used not only as part of a firm’s on - going performance management programme but can also be integrated into a reward system. In this way each partner can be provided with an agreed and actionable performance development plan which can then be used to form the basis of assessment for performance related reward. However, there is a caveat to moving to a performance based reward system, namely that such a move is unlikely to achieve its objectives if a firm is not making sufficient profits to enable it to both pay higher rewards to its outstanding performers and at the same time not penalise its average performers by reducing their remuneration to unacceptably low levels. If there is insufficient profit, then a profit improvement plan should be implemented in parallel with a new way to reward partners. If the partners in a firm have any doubts as to whether their existing method of sharing profit is fairly matching their reward to their contributions or is helping their firm to achieve its strategic objectives, then as a first step, they should consider how those arrangements might need to be changed. If outstanding performers have already been or are likely to be lost to a firm or the firm cannot recruit because of its current reward arrangements, then such review is likely to be overdue and urgent.
Surrey Lawyer 33
Management
7 Steps to Growing Your Fee Income It might be easier than you think.
Photo: Kim Gregory
How do you feel about increasing your fee income? What do you associate with selling? Do you regard selling as primarily cold calling? I’m guessing that some of you are “OK” with selling, a few are excited by it but most of you would prefer that the work “just came in” so that you could “get on with the work” you’re trained for. I was exactly the same. During the last successful 15 years I’d rarely done any selling. And then, as a result of the downturn, two of my longest standing client organisations stopped all coaching. Worldwide. Oh… It was time to start selling. I’d previously resisted selling because my empathy was in overdrive (“I can’t bother them, they’re so busy”) and because I mistakenly believed that if I did a great job I could re-build my business. I was wrong on both counts. And now I’m a convert: Business development has become part of what I do every day, my discomfort has eased and my business is thriving. If you’re interested in increasing your fee income without cold-calling, try these.
1. Apply your strengths Whatever your energising strengths are, you can use them to sell much more effectively. My Top 3 energising strengths are Relationship Building, Collaboration & Developing Others. Nowadays I mindfully use them to sell. It’s easier and it works. So,
• Writing articles for professional magazines • Following up prospects by sharing (genuinely relevant) insights and information And so much more. Fortunately they’re all easier than cold calling.
3. Picture your ideal client & plan your business development around them Take a moment to ask: what are the characteristics of my ideal client? • What’s her job title? • What challenges is he facing? • What is s/he like? • What does s/he seem to be most drawn to (mainly professional but occasionally personal too)? • Where does s/he visit professionally, e.g. conferences, magazines etc • How can I help? Once you’ve know your ideal client you can find ways to intelligently and usefully connect with them: in person, in writing, at conferences or on social networks, e.g. LinkedIn.
4. Have a Process & use it. Consistently. I developed a checklist to keep in touch with my ideal clients and I consistently do what I’ve promised myself I will do. Especially when client work gets really busy!
• What are your energising strengths? • How can you use them to make it easy for your ideal clients to find you?
It lists who I’ll contact and when, what I’ll publish to whom and how; and who I want to seek out through whom. It’s short, it’s targeted and it works. Thankfully.
2. Remember: sales is SO much more than (scary) cold calling
5. Add value by sharing relevant stuff
I used to think sales was all about cold calling. So, I didn’t do any. Now I know that sales includes: • Asking for referrals & recommendations from happy customers 34 Surrey Lawyer
Now you know your ideal client well, you’ll have a good grasp of what they’d like to receive from you, what they’d find genuinely interesting and relevant. Share a: • case study about how you helped that client who shares the same challenges • article that you had published in a
professional magazine about the topic she’s been grappling with • statistic or trend about their industry Share stuff. Relevant stuff. If it’s the right stuff, your ideal clients will appreciate it, not resent it.
6. Remember it’s YOUR job (not theirs) to keep in touch Do you worry that prospective clients will think you’re pestering them if you “keep in touch”? I did until a client said: “Thank you so much for keeping in touch. You have no idea how much it means to me.” My old approach of, “they know where I am if they need me” wasn’t good enough. It never was, I’d just been lucky.
7. Always finish with some business development You already know that your greatest sales force are your satisfied customers. But are you using that to leverage your business development? I’ve learned to have a separate “we’ve finished, let’s have a wrap up chat” at the end of every assignment. I get to hear some feedback and it’s also a chance to ask for a recommendation or a referral. Happy customers are keen to help. Selling can be a scary prospect but by undertaking the steps I’ve listed above you can make selling much easier, maybe even enjoyable. So, if you need to sell more effectively, try these activities. Seriously, if I can do it anyone can. Kim Gregory www.strengthsconsultancy.com kim@strengthsconsultancy.com 07710 212347 Kim Gregory is a leadership coach, trainer, facilitator and speaker who has a passion for positive leadership and the strengths approach. She works with individuals and teams to inspire and engage them to be at their best every day.