The Report Spring 2016

The City of Westminster and Holborn Law Society

REPORT The

Spring 2016

NO BUSINESS CAN IGNORE CYBER TERRORISM AS A THREAT (cover story)

› Clinical Negligence › Conveyancing Focus › Free Wills Month

Inside this issue:

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Contents PUBLISHER Benham Publishing Limited 3tc House, 16 Crosby Road North, Liverpool L22 0NY Tel: 0151 236 4141 0151 236 0440 Fax: Email: admin@benhampublishing.com Web: www.benhampublishing.com

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ADVERTISING AND FEATURES EDITOR Anna Woodhams DESIGN AND PRODUCTION MANAGER Neil Lloyd ACCOUNTS DIRECTOR Joanne Casey MEDIA NO. 1459 PUBLISHED February 2016 © Benham Publishing Ltd. LEGAL NOTICE © Benham Publishing.

None of the editorial or photographs may be reproduced without prior written permission from the publishers.

Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Media. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press. Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

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The City of Westminster and Holborn Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age, Disability or Sexual Orientation.

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DISCLAIMER All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between members and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.

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

COVER INFORMATION

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COPY DEADLINES Summer

7th May 2016

Autumn

15th August 2016

Winter

28th October 2016

Spring

30th January 2017

Members wishing to submit material please contact the Editor, Ivan Ho, before copy deadline.

Email:

ih@hunters-solicitors.co.uk

Anyone else wishing to advertise or submit editorial for publication in the Report please contact Anna Woodhams before copy deadline.

Email: Tel:

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INTRODUCTION

6

LOCAL ISSUES

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13 TRAVEL 14 FREE WILLS

President: Hon Secretary:

16 CYBER TERRORISM 18 PROFESSIONAL PRACTICE

Hon Treasurer:

22 CONVEYANCING FOCUS Editor:

25 MANAGEMENT 26 CLINICAL NEGLIGENCE 30 LEGACIES 33 GENEALOGY

Administrator:

Edward Macey-Dare Jonathan Cornthwaite jcornthwaite@wedlakebell.com 020 7395 3122 Bruce Clarke bruce.clarke@lbmw.com 020 7222 5381 Ivan Ho ih@hunters-solicitors.co.uk 020 7412 0050 Susie Hust, 1 The Sanctuary, London SW1P 3JT admin@cwhls.org.uk 020 7960 7115

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Introduction

REPORT OF THE PROFESSIONAL MATTERS SUB-COMMITTEE JANUARY 2016 The most important issues we have considered in the last quarter are set out below.

1. We will be submitting our response to the Solicitors Regulation Authority (SRA) consultation “A question of Trust”, which I mentioned in my previous report. This raised important issues as to what should be considered disciplinary matters and what factors should be taken into account when considering sanctions. I draw attention to the following points in our response: a) In our view lack of knowledge and recklessness should be treated as two different concepts, rather than one as the consultation proposed. b) We remain concerned that the SRA seemingly wishes to bring all fining powers in-house, to be trying to direct the Solicitors Disciplinary Tribunal (SDT) as to what sanctions it should impose. The SDT is an independent court. Its sanctions are based on its published Sanctions Guide, and on its own case law, and judgments on appeal. It (not the SRA) should determine all serious cases. c) We do not think that ordinary negligence should be regarded as misconduct and hence a disciplinary matter. There might be a category of gross negligence which might reasonably attract disciplinary action, but this is difficult to define. In the accountancy profession, the only cases of negligence to be regarded as misconduct were ones which could be regarded as disgraceful and bringing discredit upon the individual

DIARY

or the profession, consisting of one serious glaring error of a kind that no reasonably competent member of the profession exercising reasonable care should make, or of a series of lesser errors persistently made. d) It is difficult to define circumstances in which events in a solicitor’s private life outside practice should be the subject of disciplinary response. We accept that serious crimes should be, and that nothing that was not illegal should be. However matters such as driving with excess alcohol in the blood raise more difficult issues. In the end we came to the view that it is a matter of fact and degree.

However disciplinary response is not appropriate or desirable in many, probably most, cases, and it is essential that the SRA uses its discretion to intervene sparingly, proportionately and with common sense.

2. We will also be looking at the SRA consultation “Training for Tomorrow: assessing competence”, which closes on 4 March 2016. It is making an important recommendation of having a common professional assessment for all intending solicitors.

“We think the public and business users of legal services should be able to choose and use legal services flexibly from: • a completely unregulated business; • a regulated individual working in an unregulated business; or • a fully regulated firm.

Our regulation does not currently allow the second option. That limits public protection, public choice and access to quality legal services…” It is difficult to see how the second option would enhance public protection. It would reduce it.

I would welcome feedback of members’ views on these or related topics on aylmer.julian@btinternet.com

by JULIAN AYLMER January 2016

3. As a foretaste of things to come, we have looked at the SRA position paper: “Looking to the future: Flexibility and public protection”. There were no questions to which we need to respond.

March 9th 23rd

However the SRA will be issuing various consultation papers developing the themes in this position paper and drastically revising the Handbook. There are some worrying aspects to the SRA’s approach, which will need to be watched. For instance one section stated:

June Tour of the Supreme Court Committee meeting - Wedlake Bell Property Lecture: TBC New Approach to Training: SRA: 20th: TBC

16th 22nd

Employment Lecture: TBC Wine Tasting: TBC

October

Annual Dinner - Vintners' Hall Committee meeting - LBMW Risk/PI Panel discussion/Cyber: TBC Networking: the art of socialising with intent: TBC

November

September 21st

April 19th

May 19th 25th

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Legal Charities Garden Party - Gray's Inn Committee meeting - Wedlake Bell Employment Lecture: TBC

23rd

Committee meeting - LBMW Private Client Lecture: TBC Committee meeting - AGM Property Lecture: TBC Committee meeting - Wedlake Bell

Introduction

THE PRESIDENT’S COLUMN Dear Members, Since the last edition of The Report, I have been busy representing the Society on your respective behalves.

On 4th November, I attended the annual dinner of the South London Law Society at the Oval, with President Gareth Ledsham in the chair and Joe Egan (Deputy Vice President of the Law Society) as guest speaker.

Edward Macey-Dare, President

On (the inauspicious date of) Friday 13th November, I attended the Liverpool Law Society annual dinner at the Britannia Adelphi, which, apparently, is the most haunted hotel in the UK. (My secretary, whose daughter is studying in Liverpool and who is therefore very familiar with all that the Adelphi has to offer (!) took great delight in showing me an article in the Mirror dated 10th November on this very subject - which you can find at the following link: http://www.mirror.co.uk/news/weirdnews/most-haunted-hotel-uk-would-6806316 - just before I left for my train!) Evidently, the Sefton Suite is an exact copy of the Titanic’s First Class Smoking Lounge, built by the same craftsmen hired by the White Star Line. Now, I am not normally prone to superstition, but it is no word of a lie when I tell you that, as I walked through the swing doors into the hotel foyer, the music that was playing was none other than the theme tune to Titanic itself. (When I mentioned this to the woman on reception, she didn't respond, but she did go a deathly shade of pale...!). After this great build-up, however, you may be disappointed to hear that the hotel did not live up to its ghoulish reputation and, indeed, I passed a fairly uneventful night in my room after the dinner (albeit I would be lying if I said I got much sleep - there was a strange "whooshing" noise outside my door all night long - but, after a while, I realised that it was nothing more than the lifts going up and down, rather than some ghostly whirlwind!). The dinner itself was most enjoyable, with President Emlyn Williams in the chair, and an excellent (and, indeed, thought provoking) speech by Michael Mansfield QC, who seemed particularly exercised about The Investigatory Powers Bill and its "Orwellian" implications (indeed, such is the perceived threat to Legal Professional Privilege, that the Law Society (inter alia) is lobbying to have it enshrined in this particular piece of legislation).

On 18th November, I attended the annual dinner of the City of London Law Society (aka The Worshipful Company of Solicitors) at Haberdashers' Hall and it was on that evening that all my various worlds collided. In that regard, I was met at the door by Immediate Past President Vincent Keaveny, who I know well through my involvement with the City (Vincent is not only an Alderman, but also has recently been made an honorary liveryman of the Worshipful Company of Distillers, of which I am Clerk). At the reception, I bumped into several City Solicitor acquaintances, not to mention numerous Clerks from other Livery Companies represented there that evening, who were (not surprisingly!) highly suspicious of my Presidential regalia and my elevation to top table (to put it in context, we humble Clerks are invariably seated at the very end of the sprigs); when I received a special mention in the welcome speech - the speaker making much of my firm's wine and spirits connections - I could see that it was all too much for many of them! Finally, the icing on the cake was sitting next to the Master Scrivener (not only are the Scriveners my "mother" Livery Company, but also part of my office here at 1 The Sanctuary is responsible for regulating the Scrivener Notaries' profession) and two-down from the current CLLS President, Dame Fiona Woolf, who I came across many

times last year when she was Lord Mayor of London.

On 26th November, I attended the annual dinner of the Birmingham Law Society. Now, it's a long time since I was last in Birmingham and my memories of the (original) Bullring are not all that favourable (!).

Accordingly, I hope that I cannot be blamed for conjuring up in my mind an image of a 1960s pre-fab when I read that the event was to be held at Birmingham Town Hall. How wrong I was! The Town Hall is, in fact, one of the most beautiful neoclassical buildings I have ever seen - a veritable Greek Temple! - and the event was every bit as glitzy as the venue, with some wonderful music (in the form of a string quartet, followed by a stirring performance by a young, home grown pianist showcasing his own compositions) and a series of excellent, ex tempore "guest" speeches (one by the Recorder of Birmingham; another by the Managing Director of John Lewis - John Lewis having recently opened up a store over the station) before Mushtaq Khan, the President, brought the proceedings to a close with a rousing riposte. In terms of setting the bar, this is definitely the one to beat!

On 16th December, a handful of our members joined the Distillers at their annual carol service at St. Lawrence Jewry in the City. Not only were they able to enjoy a glass or two of good quality fizz beforehand, but also they were able to witness me processing up the nave with the Master and Wardens, in full livery garb, before enjoying some traditional carols and a typically rousing sermon from the Distillers' Honorary Chaplain, Canon David Parrott (who, appropriately enough, was a lawyer in another life).

On 21st January, I hosted a most memorable visit to the Victoria Tower at the House of Lords (see Ella Westby's article on page 8) where we were treated, inter alia, to the sight of Charles 1st's original death warrant (with Cromwell's signature plainly visible) and also an Act of Parliament compelling the general populus to celebrate, annually, the uncovering of the Guy Fawkes gunpowder plot! Many thanks to David Morgan for all his help in arranging this, not to mention Lord Faulkner (our contact on the "inside") and our most erudite and inspiring guide, Catherine Hardman, Head of Preservation and Access at the Parliamentary Archives.

What else have I been up to? Well, quite apart from the normal run of meetings (Officers, Main Committee and Litigation Sub-Committee) we have been busy planning this year's Legal Charities Garden Party, which (please note) will take place on Thursday 16th June in the gardens of Gray's Inn (where, incidentally, the inaugural garden party was held in 1968). With Sara Chandler (who, for your information, has just been made an honorary QC in recognition of her Human Rights work so many congratulations, Sara!) at the helm, we have also been looking further ahead and planning the National Conference of Local Law Societies (which we are hosting) and the 25th anniversary of the Federation of European Bar Associations (FBE), which will be held concurrently in London between Thursday 9th November

2017 and Saturday 11th November 2017 (further details to follow). In addition, I am trying to arrange various other one-off events in my year, such as: a joint Gin Tasting with the City of London Law Society (to be hosted - appositely enough - by Nicholas Cook, Director General of The Gin Guild Limited, given that Nicholas is himself a retired solicitor and still a practising notary!) at the Carlton Club, (TBC); a Wine Tasting here at 1 The Sanctuary (TBC); and a Quiz Night (again, here at 1 The Sanctuary) with our inimitable Immediate Past President as Quiz Master (TBC). Furthermore, courtesy of the Distillers, I shall also be able to offer places at the annual Mansion House Banquet on Friday 7th October, at which the current Lord Mayor of London, Lord Mountevans, will be the guest of honour (for those of you who have not already had the privilege of dining at the Mansion House - home to the famous Samuel Collection of Dutch Old Masters - with its magnificent Salon and Egyptian Room, this is a must attend event); further details to follow.

Finally, of course, there is the Annual Dinner. This year, it is being held on Thursday 19th May at Vintners' Hall in the City of London. My guest speaker is The Hon. Mr. Justice Dingemans, who made his name as Leading Counsel to the Hutton Enquiry and who, most recently, has been in the Press for showing great sensitivity in the gruesome Becky Watts murder trial. The event will include: a sparkling wine reception; a 3 course banquet (with accompanying wines and port from the Vintners' cellar); an operatic interlude, courtesy of the Guildhall School of Music; and (in livery speak) a Stirrup Cup (i.e. a post dinner reception). Thanks to the generosity of our sponsors, we are able to keep the price per head at a very reasonable £95 (inclusive of VAT) which is well below the true cost. Numbers are strictly limited to 158 and tickets will be issued on a first come, first served basis - I have already press-ganged numerous family and friends into attending and the tickets are selling like hot cakes, so I would urge you to book early to avoid disappointment. Please contact the Society's Administrator, Ms. Susie Hust, at admin@cwhls.org.uk for further details.

To round off: I trust it is apparent how much I am enjoying my year - I am having an absolute ball; I hope to be able to deliver on the one-off events I am currently planning; I hope to host a successful (and sold out!)

Annual Dinner in May; and I hope to increase the Society's coverage and membership as a result of our new boundary changes, by writing to all the senior partners of firms in our extended bailiwick and encouraging them and their admitted staff and trainees to join. In short, I shall continue to do my utmost to re-energise and rejuvenate the Society in my year of office.

EDWARD MACEY-DARE PRESIDENT

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Local Issues

COUNCIL MEMBER’S REPORT FOR 9 DECEMBER 2015 Council meeting in December always has an end of term feeling about it. The Annual Christmas Dinner to which significant other persons are invited to join Council Members is a great occasion when we all say thank you to our long suffering spouses, partners, those who have supported us in our voluntary work for the Law Society, often taking us away from home for days at a time.

We had a busy programme of reports and papers. The public launch of the Law Society's strategy which had been signed off in October took place in November through a wide variety of email, webbased and social media channels as well as hard copy. The strategic aims, which remain a key benchmark for Council decisions, are: • We will represent solicitors by speaking out for justice and on legal issues.

• We will promote the value of using a solicitor at home and abroad.

• We will support solicitors to develop their expertise and their businesses, irrespective of whether they work for themselves, in-house or for a law firm.

The review of the governance of the Law Society is now getting under way with several streams of preparatory work including identifying Council members to form a review working group. The Council agreed that the review would help ensure that the Law Society was able to deliver its strategy, representing, promoting and supporting the profession effectively, and to respond in a flexible and agile way to changes in the external environment. The need to engage with members with their concerns about their work is paramount.

Criminal legal aid and court issues Council discussed the concerns over the tender process run by the Legal Aid Agency (LAA). Legal proceedings have been issued in 69 of the 85 procurement areas, and an alliance of firms began judicial review proceedings on 12 November. The LAA has now accepted, at our urging, that the target date of 11 January 2016 for starting the new services is unrealistic. We are continuing pressure on the LAA's contingency plans to finalise these. We are also calling for an independent review of the tender process with a view to resolving the litigation as quickly as possible to end the current 6

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uncertainty. Council heard that the Society was calling for an independent review of the tender process and writing to Ministers to voice concerns, as well as raising them in meetings with the Justice Select Committee. This is in addition to a programme of support materials targeted directly at our members.

Council was pleased to hear of the withdrawal of the proposals on the criminal courts charge, an issue the Law Society had lobbied hard to reverse, and also noted the Society's strong response to the government's consultation on criminal advocacy, and our campaign, with others, against court closures.

Other activity to support the strategy Council heard about a range of other activity supporting the strategy. This included a discussion on legal professional privilege in the digital age as part of our activity for the Opening of the Legal Year, and work to support our members in promoting access to justice by vulnerable clients. Council also heard about ways in which the Law Society is raising its game on targeted electronic communication with our members, and developing a new stakeholder relations strategy, to ensure that we are well placed to support and represent our members. Internationally, the President and colleagues attended the International Bar Association (IBA) conference, with the Society this year securing a record number of ten speaking slots at the main conference, and promoting the profession by holding stakeholder relationship meetings with global firms that are prominent in the IBA. Council also noted that since the last meeting the Law Society has made 26 responses to consultations or calls for evidence, showing significant thought leadership in our representative and influencing role. This is in addition to wide coverage of our report on the potential impact of a British exit from the EU.

Photo: Sara Chandler

Equality, diversity and inclusion Council noted a substantial programme of work, including a series of events in October and November for Black, Asian and Minority Ethnic members. The Black History Month inspiration evening was attended by over 200 people, with other events to support career development for BAME lawyers, as well as a celebration of the Hindu festival Diwali attended by 100 people. Equal Pay Day on 9 November was marked by the Equal Pay practice note and toolkit. Council looks forward, at its next meeting, to considering the new 2016-2019 Equality and Diversity Framework which sets out plans for promoting equality, diversity and inclusion in the profession and in the Society's workforce.

Legal Practice Technologies (LPT) Council noted that it had been announced that the Society would not be making any further investment in Legal Practice Technologies, the joint venture company with our partners Mastek who were to deliver Veyo, the conveyancing package.

As indicated, this was essentially because other software providers operating in the conveyancing market had been responding to our members’ needs and the cost and time taken to get a viable product to market would be too much.

Faced with the reality that the market had developed significantly since we started to develop Veyo, the costs of continuing outweighed the benefit to our members.

Council had the opportunity to discuss the decision in detail, and to consider how we should now develop our support for firms which undertake conveyancing.

Current CWHLS members of Council are Nehal Varsani, Jonathan Wright and Fraser Whitehead for Holborn and Jeffrey Forrest for Westminster, with a vacancy for Westminster to be filled as we go to press.

PROFESSOR SARA CHANDLER QC (HON)

Local Issues

Annual Dinner The City of Westminster & Holborn Law Society is delighted to announce that this year's Annual Dinner will take place on Thursday 19th May at Vintners' Hall. Our guest speaker is The Hon. Mr Justice Dingemans.

The Vintners of London have possessed a Hall - situated between Upper Thames Street and the River Thames - since the 15th century and it is probable that, for many years before that time, they had occupied the same site and made use of a building there as their Common Hall. William Thornton wrote in A New History and Survey of London and Westminster that 'the hall is exceeding handsome and behind it is a garden with a passage to the Thames'.

at 3 Hare Court. He became a Queen's Counsel and a Recorder in 2002 and, in 2003, was appointed Chief Counsel to the Hutton Enquiry. He was approved to sit as a deputy High Court judge from 2010 and, on 10 June 2013, was appointed a High Court judge, receiving the customary knighthood, and assigned to the Queen's Bench Division.

The Hon. Mr Justice Dingemans was called to the bar at Inner Temple in 1987 and practised from Chambers

6.30pm for 7.15pm

Vintners' Hall, Upper Thames Street, London EC4V 3BG Carriages at 10.30pm

Annual Dinner 19th May 2016 Please return to: Susie Hust, 1 The Sanctuary, London SW1P 3JT Please send me tickets at ÂŁ95 each (members and members' guests) I enclose a cheque in the sum of ÂŁ

payable to CWHLS

Name: Please include full name of any guests for the table plan Name of firm /organisation: Address:

Please note any dietary and seating requirements.

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Local Issues

TOUR OF VICTORIA TOWER ON MONDAY 21 JANUARY 2016

by Ella Westby

The Victoria Tower is located at the south western end of the Palace of Westminster, on the opposite side to Big Ben. It was specifically constructed to provide Parliament with a fire-proof storage facility for books and documents, following the disastrous fire of 1834, and is today the home of the Parliamentary Archives.

O

ur tour was led by Catherine Hardman, the Head of Preservation and Access at the Parliamentary Archives, with the assistance of her trainee. The tour began with us peering over a large circular opening (known as the "Well") looking down on to the Sovereign's entrance, at the base of the tower. Above and around us ran a narrow wrought iron Victorian spiral staircase leading up towards the top of the Tower. Catherine explained that the Palace of Westminster's architect, Charles Barry, had envisaged that the tower would be the most impressive part of the palace. When the tower was finished in 1860, it was for many years the largest and tallest square stone tower in the world.

Catherine also informed us that the flag flying on the top of the tower is roughly the size of a tennis court!

After going up a series of cramped lifts, each of which only went up a few floors at a time, we arrived at a room filled floor to ceiling with rolled up parchment of varying sizes. (For the uninitiated, parchment is made from goatskin, whereas vellum is made from calfskin). This room contained Acts of Parliament dating back to 1497.

We were surprised to hear that a parchment copy is made of every Act of Parliament, even for modern Acts passed today. For some of the Acts in this room, particularly in respect of Private Members' Bills, the parchment copy is the only known record of the Act, and perhaps the only one that was ever made.

We then made our way through another set of lifts to arrive at a room towards the top of the tower with spectacular views across Westminster. In this room Catherine had laid out a selection of interesting archived materials for us to look at. These ranged from a poster originally hung up in the House of Commons by the Suffragettes

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during their demonstration in Parliament (this poster was then found several years later screwed up in the cupboard of a sergeant at the Palace) to a Private Members' Act enabling a stepmother to marry her stepson.

Overall the tour was hugely interesting and offered a unique view of the past and present workings of Parliament.

Local Issues

THE JUNIOR LAWYERS DIVISION Thank you to Wesleyan Financial Services for their seminar on money management for junior lawyers (not to mention the much-needed wine).

The JLD committee has been invited to BPP Law School to talk to students about our various routes into the legal profession and answer any questions that students might have. We are also planning a more formal session in April in which trainees, newly qualified solicitors and partners will talk to members about what to expect from their training contracts.

A number of our members have mentioned their difficulty in finding work experience. If any readers would be willing to offer a few days of informal shadowing work to a prospective lawyer in order to help them get a foot on the ladder, it would be very much appreciated. Readers should contact victoria.newman@lbmw.com and will be sent the CV of any potential applicants.

If you are interested in being added to the circulation list for the JLD, or would like any further information on the above, please email victoria.newman@lbmw.com

Remaining vigilant - the secret of long term success Why investing in risk management training can make a real difference

by Colin S Taylor, Executive Director Global, Willis Towers Watson For many the main Professional Indemnity Insurance (PII) renewal on the 1st October last year was one of the most benign renewal seasons we have seen for some time. Although some will have seen rises in premiums, most saw rates stabilise or slightly reduce and many opted for periods of cover longer than 12 months.

With the economy (slowly) recovering, fee income for the legal profession as a whole seems to picking up, especially in the areas of conveyancing and general property work. (There are exceptions of course and the Personal Injury market remains a challenging area.) At the same time we are seeing a plentiful supply of insurer capacity for PII and even noticing new insurers coming into the solicitors’ PII marketplace.

PII is no longer the problem it was three to five years ago when we were suffering the fall-out from the credit crunch and the property price crash of the late 2000s.

Professional indemnity premiums always run converse to the economy: when the

economy is strong; claims tend to be low and so do premiums. When the economy goes into recession, claims against solicitors increase and, as a result, so do premiums. When the economy starts to recover again claims start to reduce and insurers are attracted into the PII sector by the improving claims and relatively high premiums. This increase in supply can lead to over-capacity and premiums starting to fall once again. This cycle repeats itself over and over.

So times are improving, but it pays to remain vigilant. History has shown us that a period of increased workload is when many mistakes are made: mistakes that can crystallise into claims in the next four to six years when perhaps the economy sees another turn in its cycle. It is important, therefore, to ensure you continue to invest in risk management training for all staff particularly in the areas of client engagement and cyber risks.

The Solicitors Regulation Authority (SRA) is urging law firms to increase their cyber

security measures amongst fears that cybercrime is escalating; it occurs frequently as a priority risk in the SRA’s Risk Outlook. Cybersecurity is also an area of concern for professional indemnity insurers and the Information Commissioner’s Office (ICO) following an increase in the reporting of data breaches involving the legal profession. The ICO can impose significant fines for a serious breach of the Data Protection Act and professional Indemnity premiums can be seriously affected. Although good systems are important it is vital that all staff are well informed and identify issues early and encouraged to raise any suspicions of phishing etc.

Firms that do invest now will see a return on that investment with fewer claims, business disruption and reputational damage. It will also go a long way to ensuing greater stability of insurance costs next time the economy decides to take a turn for the worst and the next cycle of the market begins again.

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Local Issues

We want your trainees!

Trainees are vital to the success of the Legal Charities Garden Party.

Volunteers are required from 4 pm - 9 pm on 16th June 2016 at Grays Inn. Full induction plus a donation to a charity of their firms Trainees! choice.

Please contact Susie Hust on susie.hust@lbmw.com

At the Legal Charities Garden Party on 10th June 2015, a caricaturist was employed to sketch attendees. These are the caricatures that were left behind. Do you recognise yourself?

If so, please contact the Administrator, Susie Hust and she will arrange for the original to be forwarded to you.

we need

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11

News

WINE OF THE SEASON with Conal Gregory, Master of Wine

SBA The Solicitors’ Charity is currently recruiting Area Representative volunteers in London and is particularly keen to increase its coverage of West, South-West and East London. This is an opportunity for you to help fellow solicitors in times of need.

Volunteers play an important role within SBA’s work by visiting people who are facing personal financial difficulties in their homes. They assist with the completion of our application form and verify the relevant underlying documentary evidence on our behalf.

By volunteering as an Area Representative, you can do much to make positive changes to those suffering personal financial hardship, but there are also advantages to you. Here are some of them:

•

Sense of achievement You can witness lives improving directly from the benefits of your involvement

•

Add experience on your CV Studies carried out by TimeBank show 73% of employers hire people with a history of volunteering

•

Integrate into a wider community of solicitors Become better known

Each Area Representative has their own reasons for volunteering but, whatever their motivation, they have two things in common: they all understand the pressures of life in the law and they want to make a difference by helping those who turn to SBA in times of need.

Ideal candidates Good communication and people skills are essential.

Volunteers need to be able to listen, empathise and avoid all appearance of being judgemental. An understanding and commitment to confidentially is fundamental.

Though flexibility in being able to undertake a visit is often needed, Area Representatives always retain the option to decline a case if it is not compatible with other demands on their time.

Volunteers typically cover three to four cases per year and each of these involves roughly four hours work. All reasonable travel expenses are reimbursed. Find out more about how SBA supports solicitors in times of crisis.

To discuss opportunities for volunteering as an SBA Area Representative, please contact Sue or Dervilla via the details below. We'd be delighted to hear from you.

E: bensec@sba.org.uk T: 020 8675 6440

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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

SIMPLEXITY TRAVEL CAN ARRANGE THE WHOLE TRIP, RIGHT DOWN TO THE MINUTEST DETAIL...

A survey by Teletext Holidays recently revealed that here in the UK, people spend more time planning their vacations than they do actually enjoying them.

F

igures showed that on average we spend a total of 18 days researching our holiday, but just six days on the break itself.

So if it takes that long to organise a couple of weeks in Ibiza for say you and your partner, just how time consuming would it be to arrange a trip for an entire posse?

With summer on the way, many of us will be starting to think about holidaying with a large group of friends. But as anyone who has ever tried to organise this will know, the process can be both time consuming and challenging.

Even when you have all agreed on a location, there remains the problem of where to stay and how to get there. So ensues hours online trawling through hundreds of properties on scores of websites to read reviews and get the best possible deals. And that’s before you start to tackle the airline sites.

One company that can really simplify the whole process is Simplexity Travel Management. One of the UK’s most innovative travel management companies, it combines some of the best contacts in the business, with cutting edge technology and round-the-clock service, to take the stress out of group travel.

Having spent the last few years coordinating global arena tours for some of the world’s top artists, Simplexity knows a thing or two about complicated itineraries and large scale operations. Which is why they are increasingly becoming the organisation of choice for group travellers.

Whether your party is made up of beach bums or adrenalin junkies - or a mixture of both - Simplexity Travel can arrange the whole trip, right down to the minutest detail.

The company has previously organised everything from thrilling road trips down America’s West Coast to sailing holidays in Croatia, not to mention coordinating the itinerary for a 30-strong party wanting a two centre stay on Mykonos and who were flying from a multitude of different UK airports.

Simplexity enjoys unrivalled relationships with a global network of leading hotels, airlines, private jets and yachts. It also has a specialist golf division that encompasses the world’s leading locations.

So, once you have narrowed down your choice of location (the Simplexity blog has a whole host of inspirational ideas), its Travel Managers can source single or multiple accommodation options, flights, transfers, restaurant reservations, activity bookings, transport, excursions and much more. They can even hold flights whilst everyone in your group confirms.

One of the most difficult tasks for anyone organising a group holiday is collecting money. Simplexity handles all the finances and, what’s more, will allow each member of the party to pay separately. For extra peace of mind, holidays are ATOL protected, meaning your money is safe.

Manager can organise it. If you want to change your flight time, consider it done. And if you feel like nipping to the French Riviera whilst you’re in Italy, it’s not a problem.

Simplexity also offers clients a service called Mobile Messenger which is particularly useful where large groups are concerned. This facility means they can literally keep track of all travellers, alerting them to unforeseen circumstances such as cancelled or delayed flights and advising them of any alternative arrangements.

So, if you don’t fancy the idea of taking annual leave just to find the time to research and book your group holiday, then you know who to contact.

For more information on Simplexity Travel Management, please see www.simplexitytravel.com or call Mark Smith, Head of Business Development, on 0203 535 9290 or email info@simplexitytravel.com. Please reference The Law Report in any enquiries.

With over 45 years’ experience of organising trips abroad, and with local experts in locations around the globe, they also know a thing or two about those off-the-beaten-track restaurants, low-key bars and lesser-known sights that can make your holiday even more special.

Simplexity not only executes every trip with perfection and discretion, but guarantees to give you a personal service 24 hours a day, 365 days a year (or in the case of 2016, 366 days!). So, if you decide to add something new to the agenda, your dedicated Travel

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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 14

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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.

Mind 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.

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Cyber Terrorism

No business can ignore cyber-terrorism as a threat

by Robert Rutherford, CEO of QuoStar Solutions

Cyber-terrorism has been an underlying threat for a number of years.

Initially and without a doubt state sponsored hacking was the first step in the rise, different countries probing each other for key information and weaknesses. As with traditional warfare/terrorism this has proliferated down to the everyday Joe, i.e. anyone can buy a gun, can make explosives, etc. The bigger threat and danger comes when these people (Joes) join forces and create a force, three or four people can do a lot of damage.

Although there is no official UK legal definition of cyber terrorism currently, the majority of definitions describe it as a politically motivated attack using or against computer systems, information technology or data to cause widespread fear, loss of life or financial damage. As expected cyber-terrorism can be a big bang, perhaps a terrorist organisation bringing down the stock market, electrical grid or a large ISP. The damage can be just as large and as long-lasting as a traditional explosive based attack.

Cyber-terrorism could also take the form of a small activist group with an agenda that causes them to pay a hacker-for-hire to steal sensitive information from a firm in relation to a case or bring a firm down due to the fact they are say defending an arms dealer, drug company that tests on animals, a lobby group, etc.

Cyberattacks in general have been growing, with the latest research stating that between October 2014 and 2015 the number of targeted attacks have doubled.

In the past you had people who would just hack for “fun”, but now their motives are much more focused, from blackmail and extortion to fulfilling a political agenda.

While research suggests that government and financial institutions are bearing the brunt of these cyberattacks, the legal sector is also a prime target for cyber criminals due to the confidential, sensitive information they hold and their financial position. It doesn’t matter what size your law firm is, you are a target for a cybercriminal – that is the truth of it and to believe otherwise is simply burying your head in the sand. At a recent event I attended, 80% of the law firms there said they had been the recipient of some sort of targeted cyberattack or scam.

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As the legal sector takes steps to become further digitised, as we saw with the announcement of a £700m investment to digitise the courts in the Autumn Statement, the potential for cyberattacks also increases. The rise of the dark-web, free/cheap internet access, cheap IT and a developing world means that the capabilities and skills to wreak havoc are huge. No business can ignore cyberterrorism as a threat, let alone law firms whose whole business relies on information, data and access to technology.

While law firms themselves may not be a direct target for “cyber warfare” it is no doubt they would be caught in the crossfire in a widespread online attack on UK infrastructure, power supplies or financial systems. What financial losses would you face if your firm was completely locked down for an hour? For a day? For a week? What about the long term reputational damage you would face if you were unable to complete any work for clients or, even worse, if you had put their data at risk? In a rapidly changing, globalising market reputation is everything.

So, the above sounds pretty terrifying. It sounds like scare-mongering in fact. In reality I could whip up as much as a storm about the risk of fire, theft or flooding to your firm. The difference is that you understand these traditional threats to your firm, they have been called and controlled.

You have assessed the risks and put in the applicable controls. In reality cyberterrorism is no greater threat, you simply need to look at your assets and see where cyber-terrorism is a threat and what controls you put in place. In short you just need to do a risk assessment. If you don't

have a risk assessment template then just download an example from here: www.quostar.com/risktemplate When going through your risk assessment do really think about the 'likelihood' and the 'impact' of each type of attack against your core assets, but make sure you think of assets beyond the items you put an asset tag onto, i.e. consider assets, such as: • Your email service • Your brand • A key employee • A department • Your internet connection • A key supplier The above is just a small selection of what should be deemed as 'assets'. It's hopefully quite obvious now that you need to be revisiting your business continuity plans and your disaster recovery plans.

Actually as a firm you'll probably need to go beyond this and just build/run an IT system that is protected against threats, rather than focusing on recovering after the event. Again, focus on the risk assessment and take it from there understand your assets, the risks, and what your controls are. This isn't a huge undertaking and not going through it makes you pretty negligent, even if you aren't considering the cyber-terrorism risks.

Email: robert.rutherford@quostar.com Web: www.quostar.com/legal-it

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.

Law 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

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

Photo: Jon Bartley 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

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Professional Practice

Advanced’s software supports Companies House and Intellectual Property Office to save £1.5 million Shared finance and budgeting system used to process over 10 million transactions per annum.

5 January 2016 - Companies House, the Government agency for incorporating and dissolving limited companies, and the Intellectual Property Office (IPO), the body responsible for intellectual property rights, will save £1.5 million supported by a shared finance system from Advanced Business Solutions (Advanced).

Both organisations are benefiting from the efficiencies of using the same finance solution, e5, integrated with budget and forecasting solution Collaborative Planning.

Sharing the applications across both agencies facilitated a shared Financial Director role which also contributed to the cost saving, alongside the move from third-party hosting to in-house.

Due to the similarity in nature of the two organisations and the success Companies House, based in Cardiff, had seen from Advanced’s technology, it was decided to reproduce the system at the IPO. The IPO, based in Newport, implemented the solutions when its previous finance software reached the end of its support.

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e5 is used by around 200 staff at Companies House to process 10 million transactions every year. The solution is also used to produce management reports, process invoices and automatically alerts users when a fee is due. The IPO has been using the software since June 2015, and it is currently used by more than 50 staff to manage 100,000 transactions.

service framework used by other agencies within our department was not an option.

Financial information from e5 feeds directly into Collaborative Planning, enabling budgets, forecasts, and monthly cost-centre reports to be produced quickly using realtime data. Reports can be emailed to cost centre managers from the solution without manual intervention by finance staff.

Companies House has reduced its monthend reporting from seven days to three days by using the software.

Due to the existing infrastructure for running the system and the existing pool of knowledge and experience of Companies House users, the software was rolled out at the IPO in under six months.

Neil Hartley, Financial Director at IPO and Companies House, says, “There is a clear focus within Government on working collaboratively to drive efficiencies. Due to the unique nature of the IPO and Companies House in having a large accounts receivable function, moving to the existing shared

“By replicating a system that we had tried and tested and knew to be user-friendly, responsive and successful, we could fulfil the joint working strategy and be confident that the benefits would also be mirrored across both agencies.”

Hartley adds, “The shared system approach using Advanced’s software was by far the best value for money option that met all our requirements while enabling us to fulfil the wider Government collaboration strategy.

“It has delivered significant cost savings and is now identified as an example of best practice within the department. It is a future-proof system that will support us to work as effectively as possible to protect frontline services.”

Professional Practice

The Supreme Court on Break Clauses and Implied Terms

by Kester Lees, Barrister, Falcon Chambers

Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited [2015] UKSC 72 is set to be the leading authority on (i) the law of implied terms, (ii) the operation of break clauses, and (iii) apportionment of rent payable in advance, for some time to come.

The Facts Four commercial leases had been granted for a fixed term expiring on 2 February 2018. The rent was payable in advance on the usual quarter days. The leases contained identical break clauses which were exercisable on 24 January 2012, subject to two conditions only: (i) the payment of a break premium (equivalent to one year’s rent) and the tenant being up to date on the rent as at the break date.

The tenant paid the break premium after the December quarter date and had, therefore, paid the December quarter in full. After the leases were successfully terminated the tenant sough to recover the ‘overpayment’ of the December quarter rent, for the period falling after the break date, by virtue of an implied term.

Therefore, the key issue before the Supreme Court was whether the tenant could recover from the landlords the apportioned rent in respect of the period after the break date - ie from 24 January to 24 March 2012. The court was also asked to overrule the longstanding decision of Ellis v Rowbotham [1900] 1 QB 740, in which the Court of Appeal held that the Apportionment Act 1870 did not apply to rent payable in advance.

The Decision on Implied Terms The Supreme Court rejected the dilution of the strict test of necessity for an implied term. Lord Hoffman’s vcontrary view, expressed in the Priviy Council in Attorney General of Belize and others v Belize Telecom Ltd [2009] 1 W.L.R. 1988, was relegated to the status of an ‘inspired discussion rather than authoritative guidance on the law of implied terms’. The test remains that of strict necessity for business efficacy.

In summary, the Supreme Court made the following observations on the law of the implication of terms: a. The process of implication is distinct from the process of construction. It is only after the question of construction has been considered that the question of implication can arise.

b. There has been no dilution of the requirements which have to be satisfied before a term will be implied; namely, that it be strictly necessary for business efficacy. c. It is not enough that the parties would have agreed to it had it been suggested to them. That is a necessary but insufficient ground for implying a term. d. The test is not one of absolute necessity but whether, without the term, the contract would lack commercial or practical coherence. e. The Supreme Court found that the settled law on apportionment upon forfeiture as at the date of the grant was equally applicable to apportionment upon the exercise of a break clause. That settled law was taken to have informed the reasonable man’s view of the contract. f. A term will not be implied where it ‘lies uneasily’ with the express terms in the contract (approving Bingham LJ in the earlier case The APJ Priti [1987] 2 Lloyd’s Rep 37).

Consequently, in M&S, the Supreme Court rejected the implied term as not being sufficiently necessary. In particular, the court had regard to the fact that both parties were large commercial entities legally represented when drafting the instruments and that the leases did provide for repayment by the landlord in other circumstances (had the break not been exercised).

The Decision on Apportionment of Rent On the issue of apportionment of rent payable in advance, the Supreme Court confirmed the status quo:

Photo: Kester Lees c. Had the Supreme Court considered that the decision in Ellis was definitely incorrect then it would have been appropriate to overrule the decision despite its longevity. However, if the Supreme Court had been merely doubtful of the decision it would be appropriate to uphold the earlier decision given its longevity.

Conclusion: lessons to be learned…

No doubt tenants’ conveyancers will continue to seek to include express apportionment provisions and/or clauses for the repayment of any overpaid rent upon the exercise of a break. Such a precautious approach is clearly justified following this decision. Without such a clear and unambiguous term there can be no such apportionment of rent payable in advance.

There are other lessons which may have a wider impact. In particular, the implication of terms will be far harder to rely on in future; the Supreme Court’s shift in emphasis is impossible to mistake.

A final point to note; Lord Neuberger PSC suggested that had the premium been paid before the quarter date the rent could be apportioned. That may give some tenants hope prospectively. However, those comments must be treated with some caution as (i) they were strictly obiter, (ii) would only work where there were no other break conditions (such as vacant possession), and (iii) it would be a brave tenant who would risk the ongoing liability of the lease continuing to put this argument to the test. Only time will tell…

a. The decision in Ellis was correct. Rent payable in advance was not apportionable under The Apportionment Act 1870. b. Therefore, rent payable in advance could only ever be apportionable as a result of a clear and unambiguous clause in the contract.

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News

To Europe and Beyond!

It sometimes appears that the Universe is our oyster and likely to be within reach of our grandchildren.

CWHLS International Committee has had an active three months and particularly in relation to Europe, but has not reached much further yet.

In September CWHLS President Edward Macey-Dare together with Presidents and Council Members of 10 local law societies met Nazario Oleaga, the President of the Federation of European Bar Associations (FBE), at a dinner at Coopers in Lincolns Inn Fields. Our sponsors, Catherine Sutherland and Rupert Foster, from CODEX Legal Translation Service provided the drinks and an informative evening in pleasant company ensued.

In October the Federation of European Bar Associations (FBE) met in Krakow with David Greene of Edwin Coe as a speaker in a programme of topics dealing with white collar crime, especially tax evasion, trading carousels, money laundering, bribery and corruption. This is a seriously hot topic in some of our European neighbour states as lawyers strive to pursue the dead hand of corruption on democracy. Sara Chandler attended the FBE General Assembly as FBE Vice President, which the Krakow Chamber of Legal Advisers and Bar Association had arranged to be hosted in the Jagellonian University, seat of learning for Nicolas Copernicus. The visit to the University’s museum was a highlight as

we walked through the rooms where Copernicus had worked, and admired his scientific Pictured: Sara Chandler and Jonathan instruments.

Smithers at the Arc de Triomphe The old city in the centre of December to celebrate International Krakow is full of churches, streets of very old and beautiful buildings and the largest Human Rights Day and the Paris central square in Poland. We were bussed reopening of the courts. Sara Chandler joined Law Society President Jonathan to the Salt Mine, only ten minutes out of Smithers at the Arc de Triomphe in a Krakow, for dinner and entertained with a moving ceremony to relight the flame on brass band. The Salt Mine is enchanting, the memorial of the unknown soldier. In and well worth visiting. Our hosts also her role as Vice President of the FBE Sara treated us to a river boat reception and has met with Judges in the European dinner with jazz band, and a gala dinner Court of Justice in Luxembourg, and has with opera and folk music and dancing. been to Brussels to meet with the EU Krakow was followed by a conference in Directorate General in the last six months.

November in Wroclaw which was organised by the German Polish Forum of The next FBE Congress will be held in Strasbourg, in the European Court of lawyers. The Berlin Bar, with whom Human Rights, and the theme will be CWHLS is twinned, plays a large part in human rights jurisprudence and practice. the Forum. Sara Chandler was asked to The dates are 19 to 21 May, so please speak about the role of international save the dates and contact Sara Chandler lawyers’ organisations, and did so in her for more information. role as FBE Vice President. Then Paris in CWHLS members will be very welcome to join the International Committee in hosting a visit of Italian lawyers in May who will join our international seminar, visit the Supreme Court and attend the CWHLS Gala Dinner on 19 May. Everyone who is interested, please contact sarachandler.lawsociety@gmail.com Professor Sara Chandler is a past President of CWHLS and member of the CWHLS International Committee and Vice President of the Federation of European Bar Associations.

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News

Olswang London and Munich Corporate teams advise on digital agency CONRAD CAINE’s acquisition

by WPP’s POSSIBLE Worldwide International technology, media and telecoms law firm Olswang’s London and Munich Corporate teams have advised the founders of Munich-headquartered digital agency CONRAD CAINE GmbH on its majority stake acquisition by creative agency POSSIBLE Worldwide, a subsidiary of international communications services group WPP Plc. CONRAD CAINE’s award-winning online, mobile, video and social campaign work for global and local brands, such as Siemens, Deutsche Bank and Goodyear Dunlop, strengthens POSSIBLE Worldwide’s expanding digital footprint and makes Germany WPP’s fourth-largest market after the US, UK and China.

Olswang Partner and Head of Corporate Mark Bertram commented: “We have been working with Conrad and Christoph who founded the agency in 1998 and have grown it into

one of the most successful independent digital agencies in Germany. The agency’s footprint in Western Europe and South America made it a particularly attractive growth opportunity for WPP and POSSIBLE. Our M&A teams in London and Munich worked closely to deliver this and it was excellent to combine the strength of each.”

Olswang Partner and Head of Corporate Mark Bertram led the deal from London with assistance from Corporate Associates Philip Walton and Rebecca Davis. Olswang Munich Corporate Partner Robert Heym and Counsel Theresia Gondro provided Conrad Caine with German corporate law advice and Counsel Oliver Heeder provided German employment law advice.

Read more about Olswang’s international Corporate Practice on the firm’s website.

www.olswang.com

Get Connected at the next LPC event...

Looking to meet property professionals in the residential and commercial sector?

London Property Connections (LPC) is a group dedicated to bringing together people from all sections of the property industry (Lawyers, Surveyors, Photo: Chandra Sharma Estate Agents, Tax Advisors, Investors, Property Managers & Architects) in an informal way.

The next London Property Connection event is on Thursday 17th March between 6pm - 9pm at the Slug & Lettuce, Fetter Lane, London.

This is free to attend and is open to anyone who is involved in property. We provide two free drinks and some nibbles.

London Property Connections would encourage all to attend so that we can introduce you to

new people and other LPC members in the sector that may be of interest to you. In order that you get the most effective time from networking, we would recommend that you join the group and register for the event.

Registration is free.

Simply click on the link: www.meetup.com/londonproperty-connection

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Conveyancing Focus

Conveyancing in the Digital Age In today’s ‘always on’ world where people’s expectations of customer service are increasingly set by their experiences with swift online transactions, such as buying an item through the likes of Amazon with just a few ‘clicks’, the expectations of homebuyers have similarly become more demanding.

Not only is there an emphasis on speed of completion, but with the Internet, homebuyers are far more savvy about the amount of electronic data that is available in order to give them a more rounded view of potential risks relating to a property, its vicinity and the surrounding neighbourhood.

As such it is important that conveyancing professionals are able to meet the evolving needs of clients in order to compete. Today, homebuyers are looking for a modernised service for a prompt, modernised service, offering choice, whilst also ticking the everimportant ‘value for money’ box.

trickier still for firms where multiple partners/fee earners/secretaries may be inadvertently making different choices.

So, what can be improved?

Here at Landmark, we have been working with our legal clients to understand what improvements could be made to deliver increased efficiencies and ultimately help the conveyancing process evolve to meet clients’ growing service expectations.

To simplify and modernise this process, here at Landmark, we have launched an ‘all in one’ report called RiskView Residential. It is one of the first reports of its kind to deliver total environmental due diligence by providing Flood, Ground Hazards/Stability, Energy & Infrastructure and Contaminated Land data in one single order.

If we take a look back at how search data is currently ordered, it is fair to say the process hasn’t dramatically changed in recent years.

Mandatory searches are automatically obtained and then it is up to the conveyancing professional to decide which ‘non-routine’ searches are needed, before ordering each report for individual review and analysis.

Via RiskView Residential, not only is the most pertinent data available in a lightweight PDF report format but, for the first time, the full range of data it is fully accessible via an interactive, map-based web portal, which visually ‘brings to life’ the findings of the searches through an easy-to-navigate interface.

The range of searches is extensive: from a conveyancer’s point of view, it is vital to ensure compliance with each and every transaction. This is done by providing the client with all pertinent information on the property and any environmental factors that could have the potential to negatively impact the property, in order to avoid any negligence claim in the future.

The wide choice of available reports can, however, make this a complex process, and as it is the responsibility of legal professionals to undertake the most appropriate investigations to ensure clients aren’t subject to a loss further down the line, it is vital to get this right. Things can get

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From the report, users can instantly click through to an interactive map, providing easy navigation through the data to analyse the results. It provides conveyancers with the tools needed to interpret data quickly and accurately, and for the first time, means the information can also be directly shared with homebuyers via a Tablet PC or a desktop.

The advantages are numerous: firstly it delivers a total due-diligence solution, which means via one order, clients can feel confident that as much intelligence and insight has been gathered and analysed on the property as possible - delivering peace of mind to clients, and demonstrating

compliance and best practice from the conveyancer’s perspective.

It also saves time: now conveyancers don’t have to select and order individual reports, which then need to be analysed separately on receipt. It is far less time consuming all round. The single report provides environmental risk data in one order. It contains a comprehensive risk assessment analysis for all areas with a summary interpretation, highlighting any results that require further action or investigation for ease. This is further supplemented with clear advice and recommendations from expert environmental consultants, Argyll Environmental Ltd. Another advantage is that RiskView Residential supports conveyancers with a fixed-fee approach, by having a set cost it makes it far easier to provide quotations to clients with a single up-front fee, rather than quote for individual reports as and when ordered.

Ultimately, the aim of RiskView Residential is to support conveyancers in delivering ‘total due diligence’, whilst saving time, money and delivering the very best, ‘next generation’ client care. Not only does it help simplify the process for all involved, but it is the first radical step in taking conveyancing due diligence into a fully digital age.

Conveyancing Focus

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.

The 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

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.

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

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Conveyancing Focus

Thames Water Property Searches We are an experienced national provider of quality residential and commercial property search solutions across England and Wales.

As well as being an official provider of the CON29DW Drainage & Water Enquiry, we also have a comprehensive range of property searches and discounted search packs offering convenience and value. Whether contamination and flood risk information is required, or searches on planning applications and areas licensed for fracking, we are here to meet your needs.

How can we benefit your business?

Ordering searches is quick and easy with our online ordering platform. In addition, we’ve got some easy-to-use online tools to help - from boundary mapping through to online search tracking (so you’ll always know what stage a search is at),

accessing accurate searches has never been easier. Our intuitive system has been shaped through feedback from our customers, ensuring it truly reflects what users expect from their perfect online conveyancing search experience. To find out more, visit us at www.thameswaterpropertysearches.co.uk • If there’s one thing we are a bit old-school about, that’s good old-fashioned customer service. We recognise the importance of providing fast, accurate and reliable information and we are passionate about the service we provide.

• We’re a licensed partner of the National Land Information Service (NLIS), offering you electronic connectivity to every local authority in England and Wales therefore enabling a more cost effective and accurate transaction. This, alongside our established links with market leading suppliers, means you get direct access to all the due diligence searches you’ll ever need - and you get them from just one provider. So it doesn’t matter whether you need an environmental search, a local authority search, or chancel search you can access them all from us.

• You will also be secure in the knowledge that we are a business which is fully certified to the ISO 9001:2008: International quality management standard, so not only are we connecting you with all the right products, we also deliver them efficiently alongside a leading level of customer service.

• We are dedicated to keeping our customers up to date by providing a range of free CPD training. Covering hot topics within the industry as well as addressing challenges and opportunities currently facing conveyancers, you will leave our events equipped with the knowledge to give your clients the very best advice on topics covered.

If you are interested in our products and services or would like to take advantage of our free training opportunities we would love to hear from you. Simply get in touch by calling: 0845 070 9148 (Mon – Fri 9am to 5pm) or email us on: onlinecustomers@thameswater.co.uk

Flood checks set to be standard for property purchases 5th February 2016 - Environmental searches to identify risk of flooding when purchasing a house are set to become standard, reveals SearchFlow, conveyancing search provider.

With the scale of devastation from flooding witnessed recently, SearchFlow’s latest quarterly survey reveals that 75% of conveyancers now believe detailed checks on flood risks will become a default search prior to purchase. Only 11% believe it will not, with the remaining 14% unsure.

Flood information on properties is included in environmental searches during the conveyancing process. SearchFlow can reveal that over the past six months, only one in five property transactions were carried out with flood reports. However, since the devastating floods over the Christmas period and throughout the winter months, there has already been a 10% increase in flood reports ordered in just one month. This is set to increase further due to the changing sentiments across the conveyancing industry.

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Maud Rousseau, group marketing and communications director of SearchFlow, comments: “It has been patently clear the impact flooding has had on homeowners. Along with the Government, many industries from insurance and conveyancing to environmental agencies have been scrutinised and criticised for their inactions towards protecting homeowners. It is reassuring to see that conveyancers are responding, and many now believe that for added protection and reassurance detailed flood risk analysis should be carried out as a standard service.”

Not surprisingly, homebuyers are also very wary of purchasing a property in a flood risk area. A survey carried out by What Mortgage, a magazine for homebuyers and sellers, revealed that 82% of homebuyers stated they would definitely be put off buying a property if they were told that it was in a flood risk area, 16% were unsure and only 2% said they would not be put off.

The consequences of flooding are clearly devastating for homeowners and, for many, this has been compounded by insurance premiums skyrocketing with exceedingly high excess, or worse, homeowners unable to insure their property against the risk of flood.

To aid those in high risk flood areas, a joint industry and Government sponsored affordable

flood insurance scheme, Flood Re, is due to be implemented in April 2016. It will enable flood cover to be affordable for those households at highest risk of flooding. With a fixed premium geared to council tax bands, it will help limit the excess and ensure those at risk are protected with buildings and contents insurance.

Maud Rousseau continues: “Anxiety about purchasing a property in a flood risk area is heightened at the moment. Homebuyers are very wise to be cautious. But for many, despite searches revealing there is a risk, it may not happen.

Homebuyers simply need to be informed of any risk so they can ensure they are properly protected; just in case.

“The conveyancing sector is in the best position ever to ensure homebuyers are properly protected and fully informed of potential risks prior to a purchase. Leading data search providers for the conveyancing industry are providing the most comprehensive and up-to-date data on flood risk areas, to help ensure conveyancers carry out their due diligence with confidence and reduce the chance that anything will be missed. But vigilance needs to become standard practice throughout the year, as the flooding subsides and we move into the spring and summer months, it is important that this level of caution is maintained.”

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.

The 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 mattercritical 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.

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

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Clinical Legacies 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.”

Brain 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 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.

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!

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.

How different it was when I qualified back in 1991. When I first qualified legal aid was available to adults and children alike

A high functioning professional lady who suffered from a subarachnoid haemorrhage, which was diagnosed and

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).

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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 multitasking 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 inevitably that

Clinical Negligence 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.

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.

There do appear, however, dark forces at work on the horizon.

Recently, of course, the Department of

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.

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Clinical Legacies 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. in 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.

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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.

From 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 cost-effective 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 under-compensated 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/

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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.

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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.”

News

Public support for harsh criminal justice policies linked to social inequality Social inequality is directly linked to public support for increasingly harsh criminal justice policy in the UK despite falling crime rates, an LSE study has found.

Research found that people’s attitudes to criminals are not just shaped by the crimes they have committed but also by their perceived low social status. Criminals are stereotyped as poor and uneducated which most people equated with being callous and untrustworthy, according to the study due to be published in an American Psychological Association journal called Psychology, Public Policy and Law. Dr Carolyn Côté-Lussier, assistant professor of Criminology at the University of Ottawa, carried out the research for her PhD thesis at the London School of Economics and Political Science. She says that this link between thinking that criminals have a low social status and feeling angry and punitive toward crime, suggests that growing social inequality and failing to address disadvantage could actually contribute to even greater public demands for harsh criminal justice policy making it difficult for governments to tackle unsustainably high prison populations. It also brings new light to evidence suggesting that the devastating effect of harsh criminal justice policies have been felt most strongly by those in the margins of society, such as the poor, the homeless, ethnic minorities and those with mental health problems. The research suggests that the over-representation of low status individuals might actually be perceived as justified because of stereotypes linking low social status to a perceived evil and callous disposition.

She commented: “Public opinion is often a key issue in considering reforms in criminal justice policy. In the US and UK, public calls for harsher punishment remain high despite growing prison populations and decreasing crime rates over the past 20 years. This public opinion remains relatively constant regardless of what is really happening on the ground. In Canada, for example, provinces that punish more harshly, in terms of total and length of prison sentences, were not more confident in the criminal justice system than those living in less punitive provinces. This and other research puts into question the source of public opinion about crime and justice.”

The report points out that criminal justice policies are costly, both in social and economic terms, and governments may face public opposition to attempts to reduce prison populations. In the UK the prison population reached its capacity of 80,000 by 2006 and grew to over 94,000 by 2013. It is among the European countries with the highest levels of public punitiveness. Certain parts of the US have already stepped back from their previous “tough on crime” political agendas.

Although the Canadian criminal justice system is significantly less expansive than that of the US, the new Liberal government has announced that they intend to review and challenge laws and reforms introduced by the previous government’s “tough on crime” political agenda.

The report concludes with three policy recommendations: 1. Efforts could be made to change the way in which individuals perceive and feel about criminals. Political and advocacy group media campaigns should aim to attenuate punitive trends by countering stereotypical perceptions of criminals, particularly for nonviolent offenders or those in pretrial detention.

2. The findings suggest that the emotions people have about criminals, resulting from their stereotypical perceptions, are associated with desires to exclude but not actually punish them. This could justify implementing penal policy reforms providing alternatives to prison for non-violent and young offenders, such as training programmes, receiving treatment and counselling and community service.

3. Policies that reduce social inequality, such as improving educational attainment, could ultimately decrease public demands for harsh criminal justice policies and could have the added benefit of reducing crime and the victimization of vulnerable populations such as those with low incomes.

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News

Organise Your Firm to Grow Your Profits

by Richard Hugo-Hamman

The true growth of any business is through an increase in profit.

It is a common misconception among owners of small law firms that growth is measured by the number of people in the business. Over the years, I have spoken with many partners in small law firms, and as soon as the word ‘growth’ is mentioned, they react, usually with alarm and a statement similar to: “No! I don’t want any more partners!” However, the meaning of growth is misunderstood. The true growth of any business is through an increase in profit.

Cut Costs or Improve Efficiency From a revenue perspective, simply increasing charge rates to improve the bottom line is not as easy as it sounds. Rates, whether fixed-fee or time-based, are controlled by powerful market forces. For most small practices, the need to offer affordable services constrains pricing. Most people find it difficult to pay legal fees, so you may have to cut costs or improve efficiency to increase your profits.

Staff costs are the biggest expense and the only variable where changes can have impact. Your options are to either reduce staff or get existing staff to do more. An effective way to achieve either of these objectives is to improve your business’s efficiency by using the right technology. The rise of self checkins/check-outs at airports and supermarkets provides clear signposts for the future.

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Intense competition has made technology cheaper than ever; assuming you have the right staff, investing in the right technology is the best way to increase efficiency - and profits.

Some small law firms find it difficult to find suitable support staff - such as legal accountants, administrative assistants, and junior lawyers particularly those based outside of larger towns and cities. Possible solutions to this problem include: • Giving your staff the tools they need to do more work faster.

• Delegating routine work to existing staff so that you can do the high-value work.

• Reducing legal accounting costs by reengineering the way you do your matter accounting so you can use part-time bookkeepers.

9-Point Plan to Increase Profits 1. Organise your data into a single database.

2. Organise your template documents and matter documents.

3. Organise your communication documents.

4. Organise your Safe Custody contents.

5. Be disciplined about time recording.

6. Produce bills regularly for smaller amounts.

7. Collect what people owe.

8. Involve yourself in the change project.

9. Act today!

If you follow this plan, you will see your profits grow without having to employ extra staff.

There are many reasons to do nothing: partnership difficulties, thoughts of retirement, being busy, general inertia, etc. Complaining is easier than doing.

However, to grow the profitability of your firm while providing a better service to your clients, you must change something. Organising your practice by introducing software will allow you to fine-tune the balance between the work you have and the people you have working for you. But which software solution is the right one for your practice?

One relatively quick and easy way to do this is to hire a team of experienced practice advisers who can help you make the right decisions for your firm, assist with the deployment and training, and provide the longterm support you need to enable you to concentrate on your clients - not on the technology.

Richard Hugo-Hamman is the Executive Chairman of LEAP Legal Software. He has thought about the challenges facing small law firms for more than 25 years and has visited thousands of law firms on three continents. www.leap.co.uk.

Genealogy

Who is entitled to Arthur Sullivan’s royalties now?

Locating the beneficiaries of a will trust fund is a task undertaken by legal and probate professionals on a daily basis. However, when the trust fund in question was set up over 80 years ago and when the initial beneficiaries moved overseas and are now also deceased, finding the newly entitled party(ies) becomes less straightforward.

With a choice of firms that specialise in locating beneficiaries, it is imperative that a solicitor wishing to refer research work chooses the right one.

When Arthur Sullivan died in 1900, his nephew Herbert Thomas Sullivan started to receive royalties that had been generated by his uncle’s work in operatic theatre. In this case, the royalties would have been quite substantial due to the deceased in question being the Arthur Sullivan, one half of the internationally successful theatrical

partnership, Gilbert & Sullivan. The gifted duo collaborated on 14 comic operas between 1871 and 1896, productions of which are being shown to this day.

Herbert Thomas Sullivan died in 1928 but before he died, he set up a will trust fund for the on-going royalties that would continue to be brought in from his uncle’s work. However, the fame and popularity of Gilbert & Sullivan’s production means those royalties are still being delivered, outliving the initial recipients. So who is entitled to Arthur Sullivan’s royalties now?

And who is best placed to undertake the work to locate them?

Solving a case like this can become a full-time job. In the case of Herbert Thomas Sullivan, those entitled to receive anything from the will trust had emigrated to the United States of America making the process of finding the correct beneficiaries while based in the UK, more complicated and costly. Because of the existing will, the royalties from this estate would not automatically go to the next of kin either, there could be friends or organisations involved meaning more lines of research needing to be progressed. This is a prime example of a case that should be placed in the hands of a professional probate research firm, but before deciding which one, there are a number of factors to consider.

For example, the Herbert Thomas Sullivan will trust fund would require a firm equipped to work on an international basis ideally with an agent placed in the USA. An overseas agent is able to begin the work straight away, wasting no time and incurring no cross-Atlantic travel costs. They will also have more accurate knowledge and knowhow to obtain results adhering to best practice in the

Photo: Arthur Sullivan jurisdiction within which they’re operating.

Another important factor in the solicitor’s decision making process is the flexibility of the considered firm’s payment requirements. Agreeing on a fixed fee before the work commences is appropriate for many cases but in others, when it is difficult to predict a term in which results will be delivered, a solicitor may benefit from an agreement that allows payment to be made on a ‘time spent’ basis.

Many genealogists and probate research firms claim to have the expertise to carry out the extensive research that a case like this would require. However, when dealing with a higher profile, international case, it is worth choosing a firm that is well established and can provide the adequate human resource required to commit to the amount of work involved.

Most referral cases involve dealing with sensitive and confidential material so for peace of mind, when choosing a firm to undertake research, a prudent solicitor will check their level of security and quality accreditation, looking out for audit certification such as ISO. ISO is an international standard and whilst there are some certifications that can be bought, it is those with the UKAS crown and tick logo that are the ones that have be independently audited and assessed.

With the aforementioned factors no doubt taken into consideration, the case of Herbert Thomas Sullivan’s will trust was handed to Fraser & Fraser, international genealogists and probate researchers who have now entered their 90th year since the current partners’ great aunt started a probate research firm in 1923.

Results are to be delivered imminently meaning that Arthur Sullivan’s royalties will continue to go to those that are rightfully entitled to receive them. www.fraserandfraser.co.uk legal@fraserandfraser.co.uk

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Book Reviews

THE LAW OF MISSTATEMENTS 50 Years on from Hedley Byrne and Heller Edited by Kit Barker, Ross Grantham and Warren Swain

HART PUBLISHING ISBN: 978 1 84946 863 3 (hardback) www.hartpub.com.uk

COMPENSATION CULTURE? READ THIS CRITICAL EXAMINATION OF A WELL-KNOWN AND PIVOTAL CASE An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Having noted the subtitle of this book, you know, if you’re a lawyer what it’s about. As co-author Kit Barker explains, ‘there are few twentieth century tort cases as well known, or as often cited in commonwealth jurisdictions as Hedley Byrne & Co Ltd v Heller & Partners Ltd.’ adding that ‘it has been construed as a case about liability for careless words.’ Apart from Donoghue and Stevenson there are few tort cases in the twentieth century that are as well known.

A House of Lords landmark decision, the case has certainly excited comment and controversy, no less so now, in its fiftieth anniversary year.

Recently launched by Hart Publishing, this book both commemorates and celebrates that decision as well as offering up a rich variety of commentary on it from no less than fourteen contributors mainly from universities in Australia and New Zealand as well as the United Kingdom, but representing five of the most important jurisdictions in which the case applies, namely the United Kingdom, the United States, New Zealand, Canada and Australia.

The law of misstatements in each of the five jurisdictions is examined in depth and from various perspectives with the focus on its meaning, its influence and its basic concepts; for example, ‘voluntary assumptions of responsibility’ and ‘reliance.’

To say that Hedley Byrne has generated massive repercussions as well as comment over the past fifty years is the understatement of this century as well as the last. For example, having elevated the importance of the concept of ‘duty of care’ (no bad thing, actually) it has variously been identified rightly or wrongly, as the root cause of the compensation culture.

As this fifty year old case continues to influence and impact upon modern law, private law in particular, this book provides a cross-section of contemporary viewpoints

and therefore a fulcrum for contemporary discussion on the incredibly wide variety of issues emanating from liabilities for misstatement.

Researchers will of course, appreciate the wealth of references contained in the extensive footnoting and also in the twentyfive of so pages of tables of cases and of legislation from the relevant jurisdictions.

Also note that the Appendix contains the transcript of the judgment of McNair J. dated 20th December 1960, which makes this book particularly handy for private lawyers. If you need reminding of the details of the case, this section ideally, should be read first.

The publication date is cited as at January 2015.

BILLS OF LADING Second Edition

by Richard Aikens, Richard Lord and Michael Bools

LLOYDS SHIPPING LAW LIBRARY Informa Law from Routledge ISBN:

978 0 41574 581 9 (hardback) 978 1 31575 087 3 (ebook)

www.informa.com

ARE BILLS OF LADING LIKE ELEPHANTS? THIS ESTABLISHED TITLE FROM LLOYD’S SHIPPING LIBRARY EXPLAINS ALL - NOW IN A NEW SECOND EDITION An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Why is a bill of lading like an elephant? If you are a shipping lawyer, you should read this book and find out. Far from the straightforward and routine documents they’re assumed to be, bills of lading can be fraught with legal complications with many a legal pitfall in store for the legally complacent or unaware.

This new edition of ‘Bills of Lading’ - the first since the original edition came out in 2006 will be welcomed no doubt, by fleets of shipping lawyers. Accessible and easy to read, the book presents a minutely analytical and exhaustive study of just about every conceivable aspect pertaining to bills of lading, steering the reader though all the characteristic and distinctive features of bills of lading as well as their inherent and potential contradictions.

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But what exactly is a bill of lading? In chapter two, the three expert authors concede that it is something like an elephant: ‘generally easier to recognize than define.’ One may take this to mean that you know one when you see one, but it is hellishly difficult to describe.

Nevertheless, this chapter in particular tackles the task of arriving at a satisfactory definition of bills of lading, classifying these documents into different ‘species’ of bill. The challenge here is to determine whether a document is really a bill of lading or not.

Certain distinctions are legally significant, say the authors, ‘as they affect the legal rights and legal obligations attached to the bill.’

Published by Informa from Routledge, this edition of over 600 pages in length, is one of the latest titles to join Lloyd’s Shipping Law Library. It reflects any number of developments that have emerged in this area of law over the last nine, almost ten years. The authors point out, however, that in this interval, there has been ‘limited drama on the substantive front,’ with the greatest changes occurring not on substantive issues, but in ancillary and procedural ones, which the authors have dealt with mainly in a rewritten Chapter Fourteen.

The sections on such issues as seaworthiness and the question of frustration of contract of carriage have been expanded - and in response to the movement and direction of global trade reference is made to significant decisions from Singapore, Hong Kong, Australia, New Zealand and Canada.

The book also contains brief but apposite comments on the influence of new technologies, including web portals for booking cargo.

The authors are of the opinion that ‘theoretically, difficult questions may arise as to which click of whose mouse results in a binding contract, but such issues are unlikely to be of much practical significance.’

The authors do comment in the preface, however, that ‘E-commerce does not resolve the legal issues associated with bills of lading, but it may resolve many of the practical and factual ones and might be thought to augur an overall reduction in the level of disputes.’

International lawyers, especially those advising on marine law, or indeed any professional concerned with minimizing the ‘elephantine’ potential for risk and error inherent in bills of lading should make sure they buy this book now. It is also available as an E-book.

The publication date is cited as at 2016.