The Report December 2016

The City of Westminster and Holborn Law Society

REPORT The

Winter 2016/17

SPOTLIGHT INTERVIEW ON ROBERT OATLEY (Pages 14)

Inside this issue:

■ Probate ■ Leaving A Legacy ■ Sustainability ■ Third Party Property Law

Win 2 weeks in

Austra alia

Conveyancing is more enjoyable with Info oT o Track

ADVERT

WIN a 2 week trip to Australia for two InfoTrack’s platform uses enjoyable technology to challenge and evolve the conveyancing process.

Now, you could be enjoying 2 weeks in Australia for simply doing your job. For ever y SDLT, AP1 or eCOS per formed using the platform, you’ll automatically be entered into our prize draw.

The more you use the platform, the more chance you have of winning.

SDLT T

AP1

For more information or to sign up today, just visit: w w w.infotrack.co.uk /takemetoaustralia or call 0207 922 5777

eCOS

W

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

H

The City of Westminster & Holborn Law Society

www.cwhls.org.uk A company limited by guarantee.

4 19

ADVERTISING AND FEATURES EDITOR Anna Woodhams DESIGN AND PRODUCTION MANAGER John Barry ACCOUNTS DIRECTOR Joanne Casey MEDIA NO. 1462 PUBLISHEDNOVEMBER 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.

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

6

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.

23 14

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

COVER INFORMATION

Cover image: Robert Oatley, Associate Sales Manager Knight Frank Victoria & Westminster.

COPY DEADLINES Spring

16th January 2017

Summer

14th April 2017

Autumn

16th July 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:

anna@benhampublishing.com 0151 236 4141

4 5 12 14 15 17 18 19 20 23 27 28 29 30 32

INTRODUCTION LOCAL ISSUES CWHLS MEMBER’S REPORT SPOTLIGHT TRAVEL NEWS SUCCESSION PLANNING MEDIATION LEGACIES PROBATE EXHIBITION SUSTAINABILITY THIRD PARTY PROPERTY LAW CONVEYANCING BOOK REVIEW

30 President:

Hon Secretary:

Hon Treasurer:

Editor:

Administrator:

Nicholas Le Riche NicholasLERICHE@bdb-law.co.uk 020 7783 3560 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

The Report

3

Introduction

THE PRESIDENT’S COLUMN Dear Members, I was honoured to be elected as your new President on Wednesday 19th October 2016, midway through the AGM. NICHOLAS LE RICHE, President My immediate predecessor, Edward Macey-Dare, performed his ceremonial duties with the expected aplomb and, having been installed as President, it then fell to me, immediately afterwards, to install the new Vice-President, Joseph Reed. I am sure you will all wish to join me in congratulating Joseph on his elevation.

I will be discussing with my counterparts at these societies the possibility of hosting joint training sessions and social events so that each of our respective members have an opportunity to network and have fun with an even larger group of people.

In terms of the objectives that I have set myself during my year, these are as follows:

3. National Conference of Local Law Societies

1. drum up increased membership; 2. increase links with the other regional London law societies; and 3. help to organise a successful National Conference of Local Law Societies which we will be hosting in November 2017.

Dealing with each in turn: 1. Drumming up increased membership This was one of my predecessor’s objectives and will continue to be one of my most important areas of focus during my year as President.

At the Society’s AGM last year its articles of association were amended so that any solicitor who has practised or resided in the London postal area (namely, those postcodes commencing with the letters EC, WC, NW, N, E, SE and SW) at any time is eligible for membership of the Society. We will increase our efforts to attract new members in these areas and any efforts that you can make in encouraging friends or colleagues who practice or practiced in the London postal area would be much appreciated.

The Society is hosting the annual National Conference of Local Law Societies between 9th – 10th November 2017 at the Grange Hotel in St Pauls. It is an honour to be asked to host this conference and I will be keen to ensure that it goes as well as it possibly can. In addition in 2017 it will be the 25th Anniversary of the Federation of European Bar Associations, and they have taken this opportunity to run their Annual Congress alongside our conference.

Tickets are now on sale for both the Conference and the Gala Dinner and we would be delighted if you were able to join us for what promises to be a memorable event.

Finally, thank you for electing me as your President and it is an honour to hold this position. As always, please do whatever you can to support the Society this year, by getting involved in our thriving sub-committees (all of which do invaluable work) and by spreading the word generally. The current Law Society President, Robert Bourns, has stressed the importance of us all taking pride in being solicitors as being a key component in his campaign to promote our profession more widely. Extolling the benefits of being part of this great Society and the wonderful fellowship it provides and encouraging those who qualify for membership to join in and start making a difference will play an important part of this.

We will also be continuing our efforts to encourage more barristers to join the Society. Given the concentration of barristers’ chambers within our region and the obvious benefits to barristers of networking with solicitors we will again contact all four Inns of Court to see whether they can assist us in getting the message out to their entire membership.

Encouraging junior members to join the Society is one of the most important steps that can be taken in order to increase our membership and I will be working hard with Victoria Newman, head of the Society’s Junior Lawyers’ Division, to swell numbers from the junior ranks. To help us with this please do encourage your trainees (and, indeed, your trainees in waiting) to join – annual membership for trainees is £15 and, for students, just £10.

2. Increasing Links with other regional London law societies Maximising our already strong connections with the West London, South London and Middlesex law societies will be important in maintaining the vibrancy of the Society and ensuring that the views of London solicitors practising outside the City continue to be well represented.

4

The Report

NICHOLAS LE RICHE PRESIDENT

Local Issues

Report of the Professional Matters Sub-Committee November 2016 We responded to the Solicitors Regulation Authority (SRA) Consultation “Looking to the Future - flexibility and public protection”. We were able to agree with some of the proposals in the 33 questions asked. Others raised issues which in our view the SRA had not properly thought through. Some of the more important points we made were the following:

(a) We questioned the necessity for the duplication between the Code for individuals and the Code for firms. The purpose of having two codes is to create a delineation between those matters which are properly the purview of management acting collectively and hence suited for corporate liability and those which are the responsibility of individuals.

and arguments between insurers as to who is responsible for what. The current PII model is important not for the minimum prescribed level of cover but for the comprehensive coverage created by the MTC. It is our view that relying on commercially available terms of insurance is likely to have a long term detrimental effect on client protection.”

(b) We also consider that some elements of the proposed Code are too unclear to be useful. For example, the requirement not to waste the Court’s time could mean anything. The question as to what constitutes professional misconduct when a solicitor is balancing a client’s right to be heard against the requirements of the Court can be a difficult assessment. Does “wasting the Court’s time” extend beyond running an unarguable argument, breaching a Court Order, acting in contempt of Court or misleading the Court? If so, what is it and should it properly be characterised as misconduct? Who decides whether the Court’s time has been wasted? Is there an appeal?

We are currently considering the following:

(c) We are concerned by the requirement that ”a prompt report is made to the SRA or another approved regulator, as appropriate, of any serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.” Given the number of approved regulators and the fact that there is no common regulatory regime, this seems unreasonably wide. . Solicitors can and should be expected to understand and apply their own professional regulatory regime. It is unfair to extend reporting requirements to regimes and regulators with which they are unfamiliar.

1. The SRA is consulting for a second time on the proposal to have one centralised Solicitors Qualifying Exam (SQE).

This consultation closes on 9 January 2017 2. The Legal Services Board Consultation “Revised guidance for regulators on encouraging a diverse profession”.

This consultation closes on 2 December 2016.

We would welcome the views of members on any of these issues. If you wish to comment please let me know on aylmer.julian@btinternet.com.

Julian Aylmer

(d) We made clear our very strong objections to solicitors practising in non-regulated (which the SRA calls “alternative legal service providers”) being allowed to hold themselves out as practising solicitors. If (as the SRA proposes) they can be so held out that is likely to damage the solicitors’ profession and brand. The SRA seems oblivious of the problems this may cause. For instance it proposes to allow solicitors practising in such firms to decide whether to have Professional Indemnity Insurance (PII) cover for the work they do. Regulated firms benefit from the Minimum Terms and Conditions (MTC) which the SRA is able to impose on insurers. Our response stated that “The SRA is seeking to re-design the legal services market. That attempt, if successful, could lead to all sorts of gaps in PII cover

The Report

5

Local issues

Knight Frank are pleased to announce the arrival of their 30th London office.

New office in Victoria & Westminster highlights the expansion of the business into exciting growth areas.

Knight Frank has launched its 30th London office having opened the doors of its new site in Victoria and Westminster for business. The office, which is based on Victoria Street, gives Knight Frank a presence in a very exciting area of London given the number of residential development schemes driving its growth as a residential area of choice.

This is part of the exciting expansion of Knight Frank’s London residential business, following the recent establishment of a new Battersea & Nine Elms office.

Two new recruits have been hired to run the Victoria office; Robert Oatley heads up the sales team with Emma Sewell-Vincent taking charge of lettings. Robert brings over 10 years’ industry experience to Knight Frank, having previously covered the Pimlico and Westminster area for another agent. Emma has spent over six years working in the property market, including spells in Sloane Square and Shoreditch as well as setting up an office in Stoke Newington.

Noel Flint, Head of London Residential at Knight Frank, said: “This is a genuinely exciting opportunity for us to establish a greater presence in this area of London, particularly given the on-going residential development of Victoria and Westminster. It also shows our commitment to the London market following a period of relative uncertainty and we are highly optimistic about the potential for success in Victoria and Westminster.

“Both division heads that we have put in place are great assets to the company and they have started to build fantastic teams around them to support this expansion. I am very pleased that we have been able to recruit some top-level talent as well as provide an opportunity for some of our own exceptional people to rise within the business.”

For more information ring 020 3866 2972.

Holly Chantler – new head of the private client department at Morrisons Solicitors From 1 November this year, after 30 years of service with the firm, David Kingham will hand over his responsibilities as head of the Private Client department at Morrisons Solicitors to rising legal star, Holly Chantler.

David will be retiring in April 2017.

Holly, who has recently been recognised as one of the Top 35 Under 35 solicitors in the Private Client field for the second year running, is taking on one of Morrisons’ largest departments with a history stretching back to 1729.

In addition to becoming a Partner in the firm last year, Holly is also a Panel Deputy for the Court of Protection, a national director of Solicitors for the Elderly, a Trust & Estate Practitioner (TEP) and is shortly to begin practising as a Notary.

The Private Client department offers compassionate assistance with a whole range of services for individuals including the things we all have to deal with in life such as making a will, dealing with probate and estate matters, inheritance and other tax issues, establishing and administering trusts and arranging advanced decisions (living Wills) and powers of attorney. Alongside these

6

The Report

legal milestones in life, Holly is keen to develop the growing specialisations within the team which include the legal issues facing older and vulnerable adults, not for profit organisations, international clients and tax matters.

Holly has been part of the team at Morrisons for over 10 years now, gaining experience in all aspects of Private Client work whilst developing her own specialism in older and vulnerable adults, an area which combines highly technical aspects of law and complex matters for which she has gained a national reputation.

Holly recently commented, “Being promoted to such a prominent position within the Top 200 legal firm I trained and developed at is a privilege. I am excited about not only mentoring and supporting the self development of my team of over 20 legal professionals but of embracing modern technology to better serve our clients at what can be an extremely emotional time in their lives. I hope to grow our specialisms and increase our national reputation for outstanding customer service in these very specialised and complex areas of law for people who are in need of outstanding help.”

“In recent years there has been a growing awareness of legal issues surrounding older and vulnerable adults, along with changes in the law and I’m proud to say that with Morrisons our clients really have someone who knows about every aspect and can give the very best advice.”

“I am looking forward to embracing change whilst continuing to provide the personal service that Morrisons has been known for over the last 287 years.”

Local Issues

Rights Here, Rights Now Mencap has launched a legal panel comprised of experts from five of the best corporate law firms in the UK. This legal panel, called Rights Here, Rights Now, will work together with Mencap sees the key role of the panel being one of triage, whereby the Mencap team to improve the lives of people with a learning disability panel members will review an individual’s situation and outline what possible legal tools are available to them. It will be Mencap’s role to and their families.

Whilst Mencap are proud of the impact that they make to individual lives present the guidance to the individual and where necessary support them in seeking legal representation. on a day to day basis, the demand for legal support and advice has become a area that needs to be tackled.

The widespread cuts to legal aid and the closures of charitable legal services has had a significant impact on the number of people with a learning disability and their families accessing quality legal advice and support.

Rights Here, Rights Now will provide a greater level of expert support to a larger group of individuals and be able to better identify which individuals would benefit from legal advice and possible representation.

The panel will tackle the significant and complex issues that people with a learning disability and their families face. This will include appealing benefit decisions, securing Special Education Needs (SEN) support for a child or in more serious cases dealing with a deprivation of liberty dispute or misuse of the Mental Capacity Act and seeking redress for historical abuse.

Jan Tregelles, CEO of Mencap, said: “Rights Here, Rights Now is a significant milestone in Mencap’s history. We are committed to providing the best possible support to everyone in the UK with a learning disability, as well as their families, and now we are in a position of being able to offer top quality legal advice and support to some of the families who need it most. We are enormously grateful to those firms who have already committed to our new legal panel and urge other companies to volunteer their services and truly make a difference to those with a learning disability who may find themselves in difficult and distressing legal circumstances, through no fault of their own.”

Mencap are encouraging other legal firms to join Rights Here, Rights Now.

The Report

7

Local Issues

Who are the real innovators in the legal profession?

Steve Jobs once said that innovation distinguishes the leaders from the followers, but in the legal market how many firms are true innovators, and how many are just following the pack.

Digital dictation, one of the fast growing cloud services on offer, provides a service which was previously inaccessible to many firms due to the cost and complexity of deployment. Now dictation can be completed while authors are on the move and Clients require a high quality, value for money service from their dictations are instantly accessible from any location. It’s a great law firm, with good communication across multiple channels.

However, past research has shown a lack of understanding by the solution for firms of all sizes because it is flexible, secure and completely scalable to match the size of the practice. legal profession on the relative importance of the different forms But how quickly has the legal industry been taking up these new of communications. Two-thirds of law firms thought their clients preferred on-line communication, but only one third of clients said technologies? The pace is quickening and those who have made this was their preferred way of keeping in touch. Clients wanted to the move to future-proof technologies report that they really are reaping the benefits of greater efficiency and savings. The be able to track the status of their cases on-line, and for routine process will accelerate as the economy continues to strengthen communication to be electronic, but still placed great virtue on face to face interaction, something clearly not fully appreciated by and more legal firms look for the new technologies that will allow them to move service and efficiency to the very centre of their many firms. approach.

Regarding value for money, the cost of creating forms, How many really understand the needs of their clients, and are prepared to innovate to meet those needs and offer a top class service?

documents, e-mails and correspondence is a necessary cost, but Nick Hodges, one with a real impact on efficiency and productivity. It is hard for MD Oyez Professional Services a firm to impress, and compete with the fixed price offerings of local, national and on-line competitors while using inefficient office systems that can take many times longer to complete a task than necessary.

Spotting valuable new ideas and implementing them quickly is vital for any successful business. However, one of the reasons that law firms fail is by not grasping the nettle quickly enough to make changes when needed. Most firms put a lot of time into creating and perfecting their business models, so when things get tough the natural reaction is to ‘wait and see’ rather than acting quickly and making changes. There are many reasons why ideas don’t get off the starting block and many of these have to do with avoiding risk. Implementing new ideas in business is often thought to be risky; naturally many people do not wish to back taking risks that might make them look bad if they fail. This is especially true in law firms where the professionalism of the brand could be seen to be threatened.

Suppliers to the legal industry are aware of these trends, and the natural wariness of the profession to embrace change, and have been leading the way in supply side innovation and investment.

Data centric CRM (customer relationship management) systems are becoming widely available which allow staff in a firm to quickly access the information they need to ensure good quality communications with clients. On the cost side speech recognition systems are generating a lot of interest, becoming part of our everyday lives, greatly reducing the time taken to produce letters and file notes, with a significant impact on costs.

A wide assortment of documents can now be produced by fee earners by using only their voice.

Triggering a mediation and complying with Practice Direction made easy!

ADR Notice

Launched by CEDR, ADR Notice is a free tool for lawyers to instigate mediation.

ADR Notice not only benefits the case but also helps litigants (and those dealing with dispute referral clauses) comply with Practice Direction (e.g. PreAction Conduct and Protocols Part 8 and 9).

For more information visit adr.cedr.com The Report

9

Local Issues

INSIGHT AND CONTROVERSY: EXPERT WITNESSES KICK OFF AUTUMN CONFERRING AT THE CUTTING EDGE Elizabeth Robson Taylor and Phillip Taylor MBE of Richmond Green Chambers review one of the Highlights of the recent conference season …. The 20th Annual Expert Witness Conference at Church House, Westminster For lawyers in England and Wales, autumn is the contemplative ‘season of mists and mellow fruitfulness’ that also heralds the advent of what is becoming known as “The Conference Season”, during which time there are conferences galore.

For at least the last couple of decades, these annual events have become almost an essential part of a well-rounded, grounded -- and well-informed professional life. So political animals generally gravitate to the various party conferences – Labour, Tory, LibDem, Green -- take your pick. And for members of the Bar, there’s the must-go-to Bar and Young Bar Conference in London.

Amiably chaired by EWI Governor Amanda Stevens, the Conference proceeded apace, with speaker after speaker imparting much useful, insightful and sometimes controversial comment on the future of the justice system in general and the varied role of the expert witness in particular.

Lord Kerr Lord Kerr and Dr John Sorabji, who can reasonably be referred to as the keynote speakers, made some memorable points. ‘It is a given’ remarked Kerr, that the role of experts in our legal system is indispensable’, later adding that ‘the relationship between the decision maker and the expert witness can be a delicate and difficult one’!

If you’re a keen conference goer, you’re the sort who inevitably appreciates the opportunities to tap into what’s happening now He went on to say that ‘there are many spheres of legal activity in your field… what’s happening next… what should where expert evidence has been pivotal to the be happening, but isn’t – and why and what you The recent EWI outcome of contested and even compromised, can do, or should do, or shouldn’t do about it. And litigation. In over twenty years as a judge, I have Conference of generally you have opportunities to meet many of heard countless cases in which the result has been 2016 marked the main players in your areas of interest and heavily influenced by the evidence given by impartial, participate (or not) in the usually sharp controversies the 20th distinguished experts, either in written reports or in of question and answer sessions. anniversary of oral testimony.’ the EWI However, there is one conference that often doesn’t He elaborated further on the complementary nature of turn up all that prominently in the purview of the Conference, the respective roles played by the expert and the typical reader of “The Barrister” and that is the and very well tribunal of fact and (where possible) those roles must annual Expert Witness Institute (EWI) Conference. attended it was. be clearly defined. Interestingly, he quoted Lord Held in the central but sequestered and leafy, rather Phillips in a 1997 case in which he observed that collegiate-ish location of Church House in London – ‘when the scientist gives evidence, it is important that he should a stone’s throw from Parliament – this conference is where not overstep the line which separates his province from that of lawyers can garner important insights into the role and the Jury.’ challenges facing the expert witness in court and where expert witnesses can meet and greet each other as well as the lawyers Finally, Kerr reminded judges and jurors as well as experts, of who instruct them. the need to combine humility and assertiveness. ‘Humility’ he said ‘will lead them to defer to each other when appropriate, This article is written in the hope and expectation that the profile while assertiveness should ensure they do so only when of the EWI will be significantly raised. If you are a lawyer appropriate.’ frequently (or even infrequently) engaged in trials requiring expert evidence, you need to know more about the EWI -- and Dr. John Sorabji – ‘EWI in an Era of Reform.’ attendance at this conference does provide the ideal opportunity Another significant speech was delivered by John Sorabji, a to do so, and it is a fun event. regular friend to the Institute. As Senior Fellow UCL, Judicial A deep pool of talent Institute -- and Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls, Sorabji covered a number of The recent EWI Conference of 2016 marked the 20th anniversary important points. of the EWI Conference, and very well attended it was. It was in effect a demonstration of its standing, its burgeoning influence ‘There are plenty of challenges and opportunities for all experts and the pool of talent that sustains it. The roster of distinguished ahead of us because we’re still in an era of reform,’ he said, speakers consisted mainly of lawyers, (some transatlantic) legal referring to the paper from the Lord Thomas and others, entitled advisers and members of the judiciary, including for example, ‘Transforming the Justice System.’ A document much discussed Supreme Court Justice, Lord Kerr. at all the recent legal conferences, it follows on from the ‘Reshaping Justice’ paper of two years ago on which Sorabji has acted as an adviser and commentator.

10

The Report

Local Issues

For lawyers in England and Wales, autumn is the contemplative ‘season of mists and mellow fruitfulness’ that also heralds the advent of what is becoming known as “The Conference Season”

Sorabji also dealt with two further issues of contemporary note: the fixed costs regime and ‘hot tubbing’ – the latter being the hot topic du jour of last year’s EWI conference (and before). It may have cooled down a bit since then, but it does refer to the use of concurrent evidence, which appeared in England and Wales around 2005, having originated as an import from Australia the same year. ‘It does not save costs’ warned Sorabji, even though, in the experience of most of the delegates, it does make the proceedings of the court easier to follow.

singularly important statement on the role and duties of expert witnesses. As Sir Anthony reminded delegates, the primary duty of the expert is to the court, but there is also the duty to the client. Furthermore, the issue of impartiality should always be uppermost.

carried out by the EWI in such jurisdictions as Singapore and remarked about the fact that EWI membership has now ‘topped the thousand mark’, although the EWI still actively seeks new members particularly in forensic science as it grows.

In the august yet convivial precincts of Church House, there will be much that you can learn to your advantage, so do come next year!

Eat the Frog First: a Plea from Across the Pond

Make what you will of the whimsical title, but this speech was deadly serious and presented with verve and vigour by the transatlantic duo of Alan Anderson and his forensic accountant All the speakers who followed touched on a number of the core associate Carol Ludington. Having acquired degrees from issues involved in identifying - and elaborating on - a number of Cornell University also a PhD from King’s College, London, pitfalls inherent in the role of expert witnesses and their Minnesota-based trial lawyer, Alan Anderson has relationship with the lawyers who instruct them. For been – among his lengthy list of credentials – example, Professor Stephen Mayson, of the Centre “What a Year!” included in The Best Lawyers in America in for Ethics and Law at the Faculty of Laws, University he declared, intellectual property litigation since 2010 and there College London, spoke on the ever-changing face of “Twenty years are a number of other strings to his formidable bow. the legal profession -- in which practitioners must old- we’re contend with national and global as well as local, Basically their presentation centered on the warning two years competition… plus the new regulatory framework that ‘questions that fall within the purview of experts created by the Legal Services Act… and the older than often are left until the end of preparations, or relentless rise of the consumer – and more. deferred entirely’ – and that ‘a reluctance to engage Google!” expert witnesses early in the dispute resolution Having advised barristers’ chambers, law firms and process… often results in poor decisions or a less government departments worldwide, Mayson has than desirable outcome.’ In other words, brief your expert also appeared as an expert witness himself on law firm witness sooner than later, or you might be in for a spot of bother. management in proceedings before the Solicitors Disciplinary You have been warned.

Tribunal. All this and the impact of alternative business structures has created tensions, but it’s not all bad out there. The market Lawyerly debate for legal services is huge and continually expanding with a total Sadly, space limitations rather rule out further detailed value of £30bn annually, which apparently is no more than a descriptions here of many of the other conference speeches, mere estimate. some of which dealt with highly specialised topics. Suffice to say, however, that the EWI Conference as a whole was ‘Two years older than Google’ some words distinguished in particular, by useful, organized, highly from EWI’s fourth Chair professional and high quality debate, lawyerly in tone and What followed on from this cautionary yet optimistic message content because it was led largely by lawyers -- and punctuated were some words from Sir Anthony Hooper QC, who is the EWI’s with question and answer sessions that were illuminating and fourth Chair. In celebration of the EWI’s twentieth anniversary, he challenging. encouraged members to raise the profile of EWI for members So later this year -- only a few months hence -- when autumn present and future. leaves drift past your window – and the start of the legal term ‘What a Year!’ he declared, ‘twenty years old- we’re two years looms -- plan to take in a conference or two. The networking older than Google! And we are doing what we should be doing opportunities are first class and the food isn’t bad either, as an Institute.’ especially at the EWI Conference, which you really must make a note of in your Chambers diary.

Sir Anthony also mentioned the increase in online teaching

As a final point, Sir Anthony referred to the decision in Kennedy v. Cordia heard on 10th February 2016, a leading case heard recently in the Supreme Court. Regarded as pivotal, the case highlighted and examined the role of the expert, thus creating a

The Report

11

CWHLS members report

Joint Chairs of CWHLS International Committee, Jeffrey Forrest and Professor Sara Chandler, having returned from the international delegation visit to Colombia in September, set off for Luxembourg for the FBE Congress from 13th to 15th October.

Jeffrey Forrest and Professor Sara Chandler address the FBE Congress in Luxembourg

Back to Europe from the Americas.

The venue for the Congress was the Court of Justice of the European Union, and it was a privilege to be there and to be shown around all the court rooms.

The building itself is a modern homage to the history of the EU, and focussing on the production of iron and steel, has an enormous structure of huge iron girders.

The speakers at the congress ranged from Judges, Advocates General, and litigators in the Court, including one whose area of expertise is tax.

It was a mixture of procedural advice, interesting cases and academic comment.

An entertaining speech on Brexit can be found on the FBE website: The title was “Consequences of Brexit for the freedom to provide legal services and the freedom of establishment of lawyers”, and it was given by Philip Moser QC Monckton Chambers.

Among the social activities was a gala dinner held in a former Abbey on the river, a beautiful setting. Luxembourg is well worth a visit, and for lawyers, a visit to the court, the CJEU, is a must. The winners of the young lawyers competition in contract negotiation were presented with their awards. The winners came from the Istanbul Bar.

12 The Report

On the last day of the event Jeffrey and Sara gave a presentation on the Congress to be held in London and hosted by CWHLS in November 2017, one year hence.

The Congress will be held in The Grange Hotel, St Pauls at the same time as the National Conference of the Law Societies of England & Wales, also hosted by CWHLS. The theme will be “The role of the lawyer in protecting the planet”.

Since then Sara has attended the 30th Anniversary of the Union of European Lawyers in Paris (22nd October), and given a key note speech in Milan (28th October).

There are many ways that CWHLS members can get involved in international activities, so please get in touch very soon.

Professor Sara Chandler QC (Hon) is a Past President of CWHLS and joint chair of CWHLS International committee with Jeffrey Forrest

Specialist opportunities for lawyers With expertise in Crime and Litigation, International Criminal Law and Procedure, International Commercial Law, Civil Litigation and Dispute Resolution and International Human Rights and Development, LSBU is a popular choice for London lawyers, looking to specialise.

Why study at LSBU? • A local Southwark campus with excellent transport links • Full-time and part-time course delivery offered • LLMs delivered by experienced academics and guest leading practitioners including Imran Khan, Solicitor, Joel Bennathan QC and Roger Smith, former Director of Justice • An excellent scholarship package for postgraduate students course.enquiry@lsbu.ac.uk | 0800 923 8888

Become what you want to be

lsbu.ac.uk

Spotlight

SPOTLIGHT ON:

Robert Oatley Associate, Sales Manager Knight Frank Victoria & Westminster How did you become an estate agent?

What are your best tips for sellers at the moment?

I graduated from university with little idea of what I wanted to do and a recruitment agent suggested working in sales; I interviewed for a number of sales organisations and was wowed by a particular large, London estate agent who offered me the chance to drive a Mini and earn commission relative to how hard I worked as well as the opportunity to work out of the office as much as behind a desk.

I found out I was good at talking to people and was successful and 12 years later I am opening the new Victoria & Westminster office for Knight Frank.

Be realistic, don’t listen to the agent who inflates their pricing advice in the current market, look for an agent who knows what transactions are happening in the locality, who is able to provide recent successes and who is dealing with similar property. Equally be prepared; I have always advised clients to instruct their solicitor to prepare sale documents at the point of listing a property and this is crucial now more than ever. Any delay in sending out contracts, protocol forms, managing agents information etc could cost you a sale in the current climate as buyers have more choice and can have their heads turned.

What differences have you noticed since starting with Knight Frank?

How has Victoria & Westminster changed in your time here?

I think the key difference at Knight Frank is the sense of ‘togetherness’ within the organisation – I’ve worked for other agents who have literally ring-fenced each office’s geographical areas and the boundaries are kept as that. Knight Frank is owned and run as a partnership and it really shows; of course the ultimate beneficiaries are our clients who have 30 London offices looking after each and every listing.

In addition, we have departments to specifically look after commercial property, investment property, high net worth clients, international property, leasehold reform and valuations, so every aspect of any property transaction in the UK or abroad can be looked after by Knight Frank.

I have been based in Westminster for 6 years and back then, other than the roads to the south of St James Park and around Smith Square, the area was largely unknown despite its incredibly central location and typical London Georgian and Victorian architecture.

Over the last few years though the amount of investment that has happened, and is still happening, has been extraordinary.

New residential and commercial property schemes, new cinemas, shops, bars and restaurants have all added weight to the fact that Victoria & Westminster is a bona fide, attractive part of central London for both UK and international buyers.

What challenges do you face in the current market?

The sales market in central London is definitely challenging but there are transactions happening. Buyers seem to lack a little confidence post Brexit which is being factored in to offer prices but the main stumbling block at the moment is stamp duty – when the government re-adjusted stamp duty brackets in late 2014 they firmly put the brakes on transaction volumes in the capital and again, people are factoring in these additional costs when they offer. London though is a world city and the reasons for people wanting to live and work here haven’t changed, people will always want their children to be educated in London and we are lucky to live in a relatively safe part of the world.

There will always be demand for bricks and mortar and I firmly believe now is a good time to invest.

14

The Report

Travel

SIMPLEXITY TRAVEL’S

PICK OF 2017’S HOTTEST NEW DESTINATIONS Looking for inspiration for your next holiday? A location still barely touched by mass tourism?

Mark Smith, Head of Business Development for Simplexity Travel, offers the lowdown on five amazing destinations that will change the travel map in 2017.

Dominica

Folegandros, Greece

Known as ‘The Nature Island of the Caribbean’, Dominica remains a largely unspoilt paradise, luring many an eco-adventurer to its Boiling Lake, Champagne Reef, rainforest-covered volcano and other natural wonders. For those who want to get away from it all – but who still hold dear their creature comforts – the award-winning Secret Bay hotel is a resort overlooking an expanse of azure waters. Contemporary villas and bungalows harmonise with the local flora and fauna, with open-plan living and dining areas, outdoor showers, floor-to-ceiling glass windows, and spectacular views of the forest and beaches below.

When you imagine a picture perfect Greek island, it will most likely involve whitewashed villages, sheer cliff drops and azure waters.

Approaching by sea, the only way in and out, the landscape of this stunning hidden gem has hardly changed since Roman times when Folegandros was used to exile unwanted citizens. Aptly referred to by the locals as the “Island of Peace”, modern day visitors can still find many comfortable and contemporary places to stay here, alongside simple but excellent food and almost deserted beaches.

Patagonia

Its choice as Italy’s Capital of Culture 2017 will undoubtedly shine a spotlight on this charming Tuscan town that has for so long been overshadowed by the more celebrated charms of nearby Florence, Siena and Lucca. Architecturally it shares much with its illustrious neighbours - ancient walls, striped churches, frescoes, medieval watchtowers and arcaded piazzas. Many of its landmarks are clustered around the lovely Piazza del Duomo, one of the most impressive squares in Italy. In the shadow of the magnificent cathedral and Baptistery the square hosts The Blues Festival each July, with last year’s eclectic line-up featuring the likes of Bastille, Damien Rice, Whitesnake and Mika.

Shared by Argentina and Chile and covering some 400,000 square miles, Patagonia is home to some of the planet’s most breathtaking and diverse landscapes. A must for any 2017 bucket list is the new Patagonia Park, a once-overgrazed sheep and cattle ranch that now protects an abundance of steppe grasslands, glaciated peaks and wildlife. Other highlights of this incredible region include the Torres del Paine in Chile and Los Glaciares National Park in Argentina, with their amazing fjords and glistening glaciers.

Combine your love of adventure and relaxation with a stay at the 5star Llao Llao Hotel and Resort, Golf-Spa, whose 18-hole golf course is surrounded by perfect Patagonian scenery; rolling fairways, stunning greens and perfectly integrated bunkers.

Rwanda Nowhere near as visited as its East Coast neighbours, this 'land of a thousand hills' is a unique part of Africa. The dramatic landscape of Volcanoes National Park is one of the best places in the world for gorilla sightings. For the ultimate experience, take a trip here and then a visit to Nyungwe Forest, home of the chimpanzee as well as activities such as canopy walks, colobus monkey treks and bird-watching. RwandAir plans to start flights to and from Gatwick by 2017, making this destination even more accessible for UK visitors.

Pistoia, Italy

Speak to the experts at Simplexity Travel.

For more information please see www.simplexitytravel.com or call Mark Smith on 0203 535 9290.

The Report

15

Arrived And ready.

Your Victoria & Westminster office is now open.

Knight Frank’s 30th London office has arrived.

Contact us now - let us show you why we have been selling and letting London homes since 1896.

51 Victoria Street London SW1H 0EU Tel: 020 3544 2487 victoriasales@knightfrank.com

KnightFrank.co.uk/victoria

News

TITAN CASE CASTS A LONG SHADOW OVER CMBS MARKET The fallout from a landmark court ruling on the Titan v Colliers negligent valuation case continues to have widespread ramifications in the commercial mortgagebacked securities (CMBS) market.

The issues raised by the case and subsequent appeal remain high on the agenda in the CMBS market as potential claimants weigh up their prospects of success in raising an action.

servicers if the circumstances of a particular loan do not appear to make sense – eg: the real estate has plummeted in value way beyond what is expected from market changes.

“Having traded a loan or book of loans, the new owner may find that the loans are not what they believed them to be and there can be claims as a result for breach of warranty or indemnity in the sale and purchase agreement. There are often relatively tight time limits and restrictions on such claims, which is why it is “The Court of Appeal upheld the precedent set by the High Court worth looking at issues quickly when they arise and not leaving them for a rainy day. on who has title to sue. Titan was the correct claimant with the right to pursue a claim against Colliers. It is now clear that claims “If the secured real estate is not worth what the lender thinks it should be worth – perhaps it has deteriorated in condition or lost can be brought in the name of an issuer or security trustee on its tenants. Why is that? Is it that the managing agents have not behalf of the noteholders. done their job properly and let the property deteriorate? This “As many of the loans did not default until only a few years ago, could be the subject of a claim.” claims are still running as they fall well within the six-year time

Following this week’s Commercial Real Estate Finance Council’s autumn conference in London, Georgina Squire, head of dispute resolution at solicitors Rosling King LLP (RK) said: “CMBS professional negligence claims are still one of one of the most talked about topics in the wake of the Titan v Colliers case.

limit in tort. This is still an area to be investigated by special

Rosling King

LANDMARK PROFESSIONAL NEGLIGANCE CASE SET TO CHANGE THE LEGAL LANDSCAPE FOR THE SETTLEMENT OF DISPUTES. London 17th November 2016 - A landmark court judgment in favour of a firm of solicitors in a case of professional negligence, could have significant implications for future commercial property disputes.

Simon Hough, partner of solicitors Rosling King LLP said: "Although this is a first instance decision, it could influence settlement techniques and tactics in many commercial disputes in future."

DB Mortgages subsequently wrote to Jacobs accepting their offer from August 2015. However, Jacobs disputed this and argued that the claim had not been settled on the grounds that their August 2015 offer had been extinguished by DB Mortgages' Part 36 offer made in May 2016.

According to legal principles, a contract is binding when an offer is accepted. However, if a party’s acceptance of an offer contains The issue for the court to decide was whether the Part 36 nature of DB Mortgages' offer in May 2016 would displace the normal any variation of the terms of the original offer, it is considered to rule that a counter offer extinguished a prior offer. be a counter offer and, as such, extinguishes the previous offer.

The dispute between DB Mortgages and Jacobs Solicitors centred around Part 36 of the Civil Procedure Rules (CPR), a procedural code which governs special types of offers. Although there is some crossover with common law contractual principles, Part 36 is a separate set of rules and an offer made under Part 36 remains open until it is withdrawn and will not be extinguished by a counter offer. It must comply with the formalities of Part 36 and be made available for acceptance for a period of not less than 21 days.

The Court ruled that the Part 36 offer made by DB Mortgages operated as a rejection of the offer made by Jacobs Solicitors and that, as the 2015 offer was not available for acceptance when DB tried to accept it; the claim had not been settled. The judge held that the common law rules of contract had not been displaced.

However, the Court did affirm that, had Jacobs Solicitors’ offer been a Part 36 offer, the self-contained code would have applied and the normal rules of contract law would have been displaced, The recent case of DB Mortgages v Jacobs Solicitors involved an leaving the original offer open for acceptance. allegation of negligence made against Jacobs on the basis that The DB Mortgages v Jacobs Solicitors case is now subject to they failed to report to DB Mortgages that their borrower was potential appeal, which could take place in summer 2017. Simon buying a new build property by way of sub-sale. In August 2015, Hough commented: "Whether or not the first instance decision is Jacobs made an offer to settle the claim, which was construed in overturned remains to be seen. What is clear, however, is that accordance with common law contractual principles because it parties must think carefully about whether an offer they have did not comply with Part 36. This offer was re-stated in March made remains available months or even years after it has been 2016 and again in early May 2016. In the same month, DB issued made and when to use CPR Part 36 to settle their differences.” a Part 36 offer which was not accepted by Jacobs .

Rosling King

The Report

17

Succession Planning

Is succession a problem?

Succession planning should be regarded as one of the most critical issues for law firms as the future well - being of a firm and its people is likely to depend on it, involving issues over a firm's future leadership, the prevention of loss of talent and client relationships, and the reconciling of the interests of older partners, younger partners, key staff, managing partners and clients.

For sole practitioners the succession problems are even more acute.

Succession planning is however too often not high on some law firms’ agendas, despite some of the pressures on them which are likely to include:

 Pressure coming from below from the ‘young turks’ who want a bigger slice of the cake sooner but see their career paths blocked by older partners.

 Economic pressures to reduce the size of the equity and a trend to lower retirement ages in many firms, with older partners often seen as ‘easy targets’ but in circumstances where they cannot afford to retire, causing tensions

 Firms facing the prospect of the retirement of partners, some of whom may have been the driving forces behind their firms in the past, creating the dilemma of how to replace them (and their capital) to secure the future of their firms Unfortunately in some firms I have noticed that those running the firms have put their heads in the sand and hope the problems relating to succession will just go away. Sometimes this may be because within a firm there is not the experience or the skills to effectively deal with the problems. However, whatever the reason for failure to deal with succession issues, such problems do need to be resolved because they do not go away but tend to fester and become more acute as time passes.

The key word is "planning" because forward planning is vital if effective succession strategies are to be successfully put in place.

What should a succession plan aim to do?

Succession planning should in an ideal world aim to make optimum use of all the productive human resources within a firm with a view to ensuring the current and future well-being of the firm and everyone in the firm, by reconciling conflicting and competing interests and the future well-being of various groups, including:  Partners approaching retirement

- to provide a planned retirement to benefit both partner and the firm - to secure client relationships by planning a phased handover of clients - to harness their skills and experience - to make them feel valued - to agree financial arrangements which fairly match reward to contribution while in the firm - Who to put in their place?

Younger partners - to provide clear career paths and to manage career expectations - to put in place New Partner Programmes designed to bring people through to partnership and which continue throughout partnership - to put in place transparent admission / progression processes - to ease them into client relationships - to build competitive profitability to recruit and retain the best Sole practitioners - what to do with their practice when they want to retire?

- can they persuade another firm to take it over?

- has the practice any value?

- will an acquirer firm be prepared to become the successor practice or will the sole practitioner have to buy run off cover?

18

The Report

- Will they have to keep working if unable to find a successor or if unable to pay for run off cover?

Managing Partners - What to do with the ‘redundant’ managing partner?

- Will a return to fee earning be possible? And if so will a ‘parachute’ be provided to him or her?

- How can we use that person’s accumulated skills and knowledge for the benefit of the firm?

- Should we develop managerial career paths for our people?

Clients - How can we secure the client base of the retiring partner?

- Should we involve clients in our thinking as to who will look after them in the future?

- How can we embed client relationships into the whole firm instead of ‘being owned’ by one partner?

Seeking solutions for older partners may in particular bring into focus the longer term issue of who or what a firm puts in their place, if indeed there is anyone or anything to fill the void? This can be the moment a firm realises it may be at a crossroads.

Preparing for tomorrow If a firm has an ageing partner pool and several partner retirements due in coming years, it is prudent to ask whether the firm will realistically have the people and other resources to continue on its own or whether it should begin to plan an alternative strategy.

Planning for succession often leads to thoughts of merger as firms realise that with no strong young partners coming through, the only sensible option may be to throw in their lot with others.

However, even though succession issues can be a catalyst for merger, firms should still only merge for the right reasons.

Merger is not a strategy in itself – it is merely a means to achieving an end, namely the building of a more competitive law firm. However, if an earlier lack of succession planning now means that a firm will struggle to compete in the future, then that is likely to be a reason why it may need to consider some form of merger with others.

If firms are to avoid the problem caused by lack of good talent waiting in the wings to take over and are to grow, then they will need to help their younger people to develop the necessary skills and knowledge and provide them with long term career paths if they are to both recruit and retain the best talent.

It is also unrealistic to think that nowadays lawyers will throughout their careers do the same work and have the same roles. Instead firms will need to offer their lawyers more flexible career paths. Not every lawyer for example wishes to become a partner and so firms will need to devise ways to ensure that such people can have worthwhile long term careers in a firm. And how much talent is wasted by those firms who cannot or do not wish to find ways of using the skills of women who have had children and wish to return to work on something less than a full time basis?

Longer term, forward planning is the real key to successfully managing the process of succession if a firm is to be able to face the future in good shape and with confidence.

What plans has your firm made for its future? ■

Mediation

Getting beyond reluctance to mediate

Eileen Carroll QC (Hon)

Christopher Newmark

Dr Karl Mackie CBE

Stephen Bate

By the CEDR Chambers Mediator Group Over the past 25 years, we have heard pretty much every reason why parties say they don’t or shouldn’t mediate a case (often preferring to take their chances in a civil court) and very rarely do any of them hold water.

Broadly these can fall under three headings: ignorance of the process, cost and breakdown in trust and we’ll touch on each of these. Our experience suggests that to combat this uncertainly, organisations are increasingly resorting to contract clauses to protect themselves against parties who unwilling to negotiate or especially mediation. We spoke to some of our CEDR Chambers Mediators for their insights.

Ignorance of the process?

Understanding the legal landscape, pre-action protocols and recent case law can often persuade both reluctant lawyer and client of the merits of not refusing to mediate (most recently the Costs ruling by Master Gordon-Saker in Various Claimants v Mirror Group Newspapers). Yet getting parties to agree you need first to have a good understanding yourself of the process – be able to explain the success rate of mediation, the framework of the process and that it is entirely focussed on achieving a positive commercial resolution because it is the parties who are ultimately in control. Despite the majority of cases coming to mediation as deadlocked, approximately 70% settle on the day and a further 15% shortly afterwards – so the odds are stacked very favourably towards a happy client!

Another cost layer?

Preparing for court is a hugely expensive affair and to add another layer of cost in for mediation which cannot guarantee a resolution can be too much for some. This may depend of course on when mediation is proposed: pre-issue, pre-disclosure or before trial date – clearly the later it is proposed the more expensive the bill has already become for the client. However the parties should be encouraged to look beyond just the fee.

It is important to remember that any mediated settlement terms will not be imposed on either party but that because they are assisted by an expert neutral negotiator to find the best workable solution the quality of any settlement outcome is likely to be far superior to that of an enforced order.

As Stephen Bate warns “Although many business people have great experience in negotiation, dialogue to settle disputes presents unique challenges. It is very different to, say, negotiating the terms of a contract, where parties may offer concessions with a view to making money from the deal. In disputes, parties have little to gain, faced with a choice between unattractive outcomes. A creditor may be asked to accept significantly less or a debtor to pay much more, than considered due. If not, each may face the prospect of litigation. There are many techniques and considerations. These include proper preparation with cost/benefit analyses of not only settlement options but, critically, of carrying on with the dispute. Each party should engage the other with emotional intelligence and explore not just its own commercial needs but the other’s too.”

Breakdown in Trust Negotiators talk about taking the ‘people out of the problem’ as one way to tackle trust issues. In the film “The Negotiator”, Kevin Spacey says to Samuel L Jackson (who at this point is gamekeeper turned poacher) “whether you did it or not doesn’t interest me, my remit is to find a way forward”. There are many ways of doing this but, as in The Negotiator when trust becomes an issue, perhaps it would make sense to use a skilled third party neutral who has no vested interest in the outcome.

Chris Newmark believes when thinking about or preparing for mediation there is significant benefit in having early private discussions with the mediator. “My experience is that these early discussions help inform the preparatory talks that lawyers have with their clients. Hitting some of the key topics early can actively focus or guide a party’s approach to a particular issue so that when meeting at the negotiation table everyone is clear on what needs to get done.”

Contract Clauses Eileen Carroll QC (Hon) has seen an increase in ADR clauses: “Over our 26 year history CEDR’s Mediation Contract Clauses, Model Mediation Procedure, Mediation Agreement and Settlement Agreement have remained one of our most influential pieces of work. Today around the world tens of thousands are downloaded every year. From my recent mediation practice it is clear that organisations with sophisticated in-house legal teams are realising the cost benefits of early mediation pre-litigation.

One such client summed it up perfectly: ‘our experience served to demonstrate that mediation not only saved both time and money but also preserved goodwill in a relationship that would most definitely have been lost had the dispute gone to litigation’.”

“More often than not there are background factors, personal drivers or obstacles, in addition to the straightforward legal and substantive issues, that can be influencing how comfortable they are to have settlement talks”, concludes Dr Karl Mackie CBE. “Mediators are ideally placed to get below the surface of the parties overt cases in a safe environment and help them map out pathways to settlement.”

Stephen Bate, Christopher Newmark, Eileen Carroll QC (Hon) and Dr Karl Mackie CBE are part of CEDR Chambers, a practice group of mediators who have come together to offer the very highest standards of service to clients.

CEDR’s Model Documents can be downloaded from www.cedr.com/solve/chambers/

.

The Report

19

Legacies

REMEMBER

A CHARITY Did you know that legacy giving is fundamental to the amazing work of many charities?

Simply mention ‘including a charity’ to your clients.

In fact, legacy income is estimated to be worth almost £2.5 billion a year to charities in the UK. Many charities rely on these gifts to help them carry out their vital work.

Two out of three guide dogs and six out of ten life boat launches are paid for by gifts in Wills, as is over a third of Cancer Research UK’s life-saving work.

Unfortunately there is evidence of a disconnect between people’s intentions to give money in their Wills and those doing so. Research shows that 35% of those surveyed wanted to leave money to charity in their Will, but only 6.3% do.

Remember A Charity works in collaboration with more than 160 member charities, the UK and Scottish Governments and The Law Society to do what no single charity can do alone – making legacy giving a social norm.

Remember A Charity is part of the Institute of Fundraising, a registered charity in England and Wales (No. 1079573) and in Scotland (No. SC038971).

Your clients may not care that it’s illegal to handle a salmon suspiciously. However, they may like to know they can leave a gift to charity in their Will. rememberacharity.org.uk

20

The Report

Most people don’t realise they can use their Will to take care of not just their family, but everything else that’s important to them as well by leaving a gift to charity. Solicitors can play a key role in the Willmaking process by reminding their clients that leaving a gift to their favourite charity is an option.

A report published by the Cabinet Office, working in partnership with Remember A Charity, showed that when professional advisors like you ask their clients if they would like to leave a gift to charity in their Will, they were twice as likely to give.

Making provision for everything that’s important.

A Will can be used to look after everything that your client cares about, from family and friends, to charity. Leaving a gift to a charity that your clients are passionate about can make an enormous difference.

If we can just make a small increase in the percentage of people leaving a gift in their Will from 6.3% to 10% it is estimated we could raise over £1 billion extra for UK charities – the equivalent of a further 10 Comic Relief appeals a year.

Most people don’t realise they can use their Will to take care of not just their family, but everything else that’s important to them as well by leaving a gift to charity.

HERE’S TO THOSE WHO O CHANGE ED THE WORLD D

Dr Elisabeth Svendsen MB BE Founder of The Donkey Sanctuary (by Mike Hollist)

WH HA AT WILL W YO Y OUR R LEGACY G Y BE? Help protecct and care ffo or abused donkeys by remembe ering us in your will.

To receive a copy of our Leaving a Legacy guide ‘Y Yo our questions answered’ or o to speak directly with our Legacy y Te Team please contactt 01395 578222 marie.wilson@thedonkeysanctuarry.org.uk

RETURN FORM O TO:

N Name: Mrr//Mrs/Miss

THE DONKEY SANCTUARY Legacy Depa D artment (SJ), (SJ) Sidmouth, Devon, D EX10 0NU.

A ess Addr

A charity regisstered with the Charity Co ommission fo or England an nd Wa Wales No. 264818

Postcode E Email

w w..thedonkeysanctuar www u y..org.uk/legacy

0014_14_DS

Legacies

A Living Legend Every year, we take in around 17,000 dogs every year who have been abandoned, abused or neglected.

Dogs Trust never puts down a healthy dog.

So with the help of our wonderful supporters, we can give these deserving dogs a second chance in life.

Providing expert veterinary care, specialist rehabilitation equipment and training facilities doesn’t come cheaply. Not to mention all the vital everyday necessities like food, bedding and heating.

Dogs Trust receives no government funding, so we wouldn’t be able to run our 21 state of the art rehoming centres around the UK without the generous donations from our supporters.

A third of our funds come from gifts included in people’s Wills.

One such supporter, Dr Thomas Preston, has pledged to leave a legacy to Dogs Trust in his Will, after he and his beloved wife Pat spent 40 years of their married life looking after and rescuing neglected and unwanted dogs.

Pat always had dogs from a young age, and couldn’t bear to see them injured or ill-treated. Sadly she passed away in 2014, leaving behind Tom and her darling dogs. It was the shared belief that no healthy dog should be put down that led her to make the incredibly generous decision to leave us a gift in her Will. So if you love dogs like we do, please consider leaving a legacy to Dogs Trust.

We promise we’ll never put down a healthy dog.

A third of our income relies on gifts in Wills.

Every year, Dogs Trust cares for nearly 17,000 dogs in our 20 rehoming centres around the UK. We never put down a healthy dog. By supporters leaving a gift in their Will, their love of dogs can live on and help us make the world a better place for them.

For more information call:

020 7837 0006 or email:

infopack@dogstrus t.org.uk Or please write to:

Freepost RTJA-SRXG-AZUL, Dogs Trust, Clarissa Baldwin House, 17 Wakley Street, London EC1V 7RQ (No stamp required).

Please quote “ ”. All information will be treated as strictly confidential

www.dogstrust.org.uk

22

The Report

Reg. Charity Nos: 227523 & SC037843

Probate

INTERVIEW WITH PETER BAVERSTOCK ON WILLS AND PROBATE Peter Baverstock is CEO of LEAP UK, which offers cutting edge case management systems, including wills and probate forms and materials, to small law firms. In a recent interview Peter talks about how the company has been updating its estate planning offering – and why, since launching in the UK nearly two years ago, it’s racing ahead in leaps and bounds...

You just updated your wills and probate material three months ago Peter – why was that?

LEAP’s system has always comprised of a wills and probate offering – the wills-side of things was straightforward but producing, for example, an IHT 400 is actually quite a complex matter. So, over the past nine months, we have tweaked our wills and probate case management system – we’ve listened to what our clients want and remodelled it accordingly, now we’re heavily promoting that as part of the LEAP package as we believe it’s now one of the best on the market. At present we have a team of Product Specialists visiting law firms across the UK demonstrating the software and our estate planning material. We focus on high street law firms with 1 to 25 members of staff, generally our clients work across a variety of areas of law. But I’d say around 60% of our current client’s work, at least some of the time, in probate. and that’s why having the right wills and probate package is so important. And to those small firms who aren’t working in probate we’d ask: why not? The ability to work on a probate file is already there, within our system, so use it. Otherwise a lot of probate work is walking out of the door and going to large corporate firms. And that’s daft, when the technology is at our clients’ fingertips.’

Have you had good feedback on the new material?

‘Yes our clients are embracing it, praising the simplicity of generating the 205 and the way the IHT 400 is produced as well.’

Apart from updating the wills and probate process, what other innovations have taken place at LEAP in the last few months?

‘We’re at the forefront of changing the way people work, using instant online chat software with our clients, launched four months ago. So, as soon as a client logs in to our community, a chat box pops up and one of our engineers is online, ready to provide

support. Any issue that can’t be fixed through an online conversation, which the majority of things can, we’ll call the client immediately. We have analysed the new online chat system and it’s taken our call logging times from hours down to minutes. And we’ve received a great response from clients themselves on the efficacy of the system. It’s a lot less frustrating for them than making a call and then waiting an hour or two for a call back – with online chat they connect with one of our support people in seconds.

2016 has been incredibly busy so far – what’s left for the next four months of the year?

‘It has been a busy year but one of our mottos is never, ever give up and we live by that mantra. We’re continually pushing boundaries to ensure our clients have the best service and products. So in September we launched our LEAP iPad application which means clients’ can access their data in a standard format on iPad, lap top, PC or smartphone.

We know that small law firms need that flexibility in the way they work – often they’re out on site meeting people to discuss their wills so it’s sensible for them to be able to draft a will there and then, while they’re actually with the client. It’s all about efficiency – allowing law firms to work the way they want to work. If they can be flexible with their practise management solutions, then they can give a much better service to their clients.’

And how is LEAP doing in general since launching in the UK in October 2014?

‘It’s nearly two years since we launched and we have already reached 700 firms using LEAP so it’s going incredibly well and our product is being well received. Clients value it because it’s so simple to use – it works the way they work. As to the future – well as I said before we never, ever give up, we want to ensure our clients get the very best in technology after all we spend some £5m a year with over 50 developers continually looking to improve our solutions.

The Report

23

Probate

Genealogical research – The secrets of locating missing heirs With the majority of estates, identifying the rightful heirs is straightforward.

However, when beneficiaries are missing or unknown it can throw the entire estate administration process into disarray.

A case which highlights these risks involved a spinster who died intestate and left a £200,000 estate. Her paternal family was quickly located and reported that there were no surviving maternal relatives.

unless genealogical research has been undertaken beforehand. For larger estates, a recognised genealogy report is often the only viable option for legal professionals to take.

To safeguard you and your clients against the consequences of a missing beneficiary coming forward, many firms carry out a beneficiary search through a specialist genealogist, like Title Research. They However, when the deceased’s post was redirected to her This may sound provide a comprehensive report which identifies any potential solicitor, a card was received from ‘Cousin Joyce’ who had not unusual but heirs (and locates them if necessary) or at least provides been mentioned by any other family members. As a result, the Title Research reassurances that there is little chance of further beneficiaries solicitor appointed Title Research to research the family tree in existing. greater detail. They identified seven maternal family members reports that 40% of family “In the authors’ view, whilst there is no authority which provides who all stood to inherit from the estate under intestacy rules, trees that they assistance on this point, it is possible that a beneficiary might fundamentally changing the distribution of the estate. check contain successfully argue that the personal representative has acted in This may sound unusual but Title Research reports that 40% errors. breach of duty by appointing an heir locator on such a basis, of family trees that they check contain errors. Had the estate and should be personally accountable for the share that the beneficiary been administered without further investigation, the beneficiaries (and has paid to the heir locator.” their legal representatives) could have been left exposed if entitled beneficiaries emerged after the estate had been distributed.

So how do you mitigate these risks? The SRA expects you to take reasonable steps to find all beneficiaries; only small estates of £500 or less can be self-certified and donated to charity. One way of doing this is to ask the beneficiaries whether they are aware of any other heirs but cases like ‘Cousin Joyce’ demonstrate how this approach is inherently unreliable.

Specialist insurance cover to mitigate the risk of a missing beneficiary coming forward is also an option. However, very few insurers offer cover

24

The Report

Tom Curran, Chief Executive at Title Research said: “Failure to carry out thorough genealogical research could result in a missing or unknown heir coming forward after an estate has been distributed. We locate thousands of missing beneficiaries each year which highlights how easy it is for legal professionals to fall foul of assuming that all heirs are accounted for. Our consultant genealogists trace people across the world and have a success rate of over 90%, so we are confident that we can help our clients with even the trickiest of estates.”

For more information Title Research’s services, visit www.titleresearch.com or call 0345 87 27 600.

Probate

THE ASSOCIATION OF PROBATE RESEARCHERS (APR) TAKES THE FIRST STEPS TO REGULATION IN THE HEIR HUNTING INDUSTRY

The Association of Probate Researchers (APR) was formed in response to the lack of regulation in the Probate Research (Heir Hunting) industry.

Neil is a partner at Fraser and Fraser, the research firm who have featured most prominently on BBC One’s Heir Hunters programme for 10 consecutive series. After several years of looking at ways to promote regulation, Neil is delighted to announce that APR (which was incorporated in June 2016) is now a recognised body under the Professional Paralegal Register (PPR). APR’s new status is set to benefit its members, allowing them to hold a PPR practising certificate whilst they follow APR and PPR guidelines.

The probate research industry is unregulated and APR was set up as a voluntary, self-regulatory body which aims to raise standards and to offer protection to beneficiaries from hobby genealogists and enthusiast amateurs. APR protects consumers (beneficiaries) from firms and individuals who believe that, after having watched the TV series, they can become probate researchers with very little or no legal training and experience. In the past few years there have been several cases of fraudsters posing as Heir Hunters resulting in millions of pounds being stolen from members of the public. This is just the tip of the iceberg.

PPR was launched in 2015 by the National Association of Licensed Paralegals (NALP) and the Institute of Paralegals (IoP).

The PPR was set up in direct response to the Legal Education and Training Review (LETR) in order to regulate paralegals and only recognise those who provide the highest of standards. APR is the fourth body to be recognised by the PPR and the only body for Probate Researchers or Heir Hunters.

Commenting on this development, APR Chair Neil Fraser said: “APR is the only Recognised Body for Probate Researchers that has access to a compensation scheme and an independent complaints procedure. We are proud to be working alongside the PPR to enhance the status of Professional Paralegals. Our members will at last be able to have their professional status recognised, this is only the beginning in order to justly regulate the industry, but it is a huge first step.

“Beneficiaries can be comforted by the fact that our individual paralegal practitioners are regulated and backed by a compensatory scheme, an industry first.”

Rita Leat, Managing Director of the PPR added: “We are delighted that APR is now a Recognised Body under the PPR. The probate research profession have been among some of the unsung heroes offering legal services and we welcome them as Professional Paralegal Practitioners. The PPR is the voluntary regulatory body for all legal service providers who work in the unregulated sector. It provides a robust but proportionate set of regulatory standards with a compensatory scheme available to consumers when things go wrong.”

The APR is in talks with several of the leading firms in the industry and hope to announce more members in near future.

All APR members sign up to the professional ethics and code of conduct. Members benefit from: Inclusion on the Register held by the PPR; the ability to apply for Paralegal Practising Certificates which provide regulation that until now has been missing from the industry. The APR has an independent compensation scheme, which has been setup to promote regulation, protect fellow members of the legal industry, and more importantly reassures the general public and beneficiaries that they can turn to an authoritative body if they have been taken advantage of.

The Report

25

Understanding Site Drainage for Better Client Care Drainage guidance is changing fast.

Major developments and any proposed in flood risk areas must explain how they will minimise flooding from the site.

Yo our client must understand site drainage and how this could impact on planning conditions and pro oject viabilit y.

The unique SuDSmart Report provides essential answers to help your client engage ef fectively with local authorities on development scheme drainage strategies: • Verif y suitable conditions for infiltration or other suitable drainage options • Calculate runof f volumes and flows • Compliant answers to support planning conditions • Fixed price and quick turnaround options available

Don’t risk delay and cost in the application process – find out what the site is saying with SuDSmart.

Call us today to discuss your project:

+4 4 (0)1743 276 150

info@geosmar tinfo.co.u o k @geosmar tinffo w w w.geosmar tinfo.co c .u k

Exhibition

LEGALEX is back and BIGGER than ever...

Legalex made a hugely successful return to ExCeL London earlier this year to further strengthen its reputation as being the nation’s leading event to focus on the business behind law.

However, the successes of this year’s show looks set to be dwarfed by Legalex 2017, which has already almost equalled the record number of exhibitors who flooded to May’s event.

Legalex is renowned for bringing the industry’s most influential and revered figures together to address every challenge, issue, and development across the sector, and 2016’s show continued this proud tradition.

Amongst those who packed out the seminar halls were Lesley Batchelor OBE, Jonathan Smithers, and Maz Nadjm. The show’s conference schedule was meticulously designed to cover every area in law and provided the foremost insight and guidance for its audience.

Within days of the close of the 2016 event, a highly impressive 82 per cent of exhibitors scrambled to cement their place for next year’s event, with over half upgrading their stand. And with interest growing, organisers have been forced to increase their exhibitor forecast to 150.

Following feedback from this year’s visitors, Legalex 2017 will take place on the 28th and 29th of March

Following feedback from this year’s visitors, Legalex 2017, which will take place on the 28th and 29th of March, will see further investment in networking, offering the most effective environment yet for connections. In addition, increased effort will be made to create the highest quality of seminars and features in the event’s history.

Once again the show will have a speaker line-up that is packed with the most innovative and distinguished figures working in law. The full listing of every exclusive, CPD-accredited seminar will be published early next year; but rest assured that every session will be delivered by an expert in their field providing you with world class guidance, knowledge, and experience that will be of huge benefit to your legal business.

If you’re interested in exhibiting at the fastest growing legal event in the world, contact Event Director Phillip Atkinson on 0117 929 6084 or phillip.atkinson@prysmgroup.co.uk.

Across two days, the event, with its 150 exhibitors providing innovative goods and services, over 150 expert-led seminars, masterclasses, panel sessions, and networking features, saw 83 per cent of its visitors confirm their intention to return to 2017’s highly anticipated event.

What’s more, post-show research has shown that out of the 2,418 visitors, nine out of 10 were key decision makers within a variety of law firms and companies whose business connects with the law industry.

The Report

27

Sustainability

SUSTAINABILITY and the VALUE of CARBON REPORTING. As the Winter approaches and the nights draw in our memories of warm summer days and sunlight begin to fade to be replaced by crisp mornings and chilly evenings.

Now is a perfect time for law firms to be thinking about how to measure, manage and reduce their energy costs.

Having a sustainable approach to business and reducing energy use is as relevant for medium sized and smaller law firms as it is for multinational corporates because it is about running your business more responsibly and saving money in the process. Simple actions can result in significant benefits - such as turning off PCs and monitors and switching to energy saving light bulbs (turning off a computer instead of leaving it on screen saver can save £45 a year). Figures from DECC (the UK’s Department for Energy and Climate Change) suggest SMEs could reduce their energy bills between 18 to 25% by installing energy efficiency measures coupled with a change in approach and culture within a firm.

Actions by individual law firms all add up as the newly published 2016 LSA Annual Report shows. This year Legal Sustainability Alliance (LSA) members recorded a saving of 6857 tCO2e - the equivalent in weight of over 68,000 baby elephants and in volume terms enough to fill 1371 hot air balloons. This saving equates to 13824597 kWh of electricity worth nearly £2m a year.

In a recent address to members of the Legal Sustainability Alliance, David Rivkin, President of the International Bar Association and Partner at Debevoise and Plimpton, called on lawyers to be not only only shrewd technical advisors but also aspire to be “lawyer-statespersons who ask both is it legal and is it right” in response to climate change which is “the greatest challenge of our time” .

Research carried out by the Carbon Trust showed that consumers are 63% are more likely to buy a product or service from a business if they know actions are being taken to reduce its carbon footprint: while a CIPD survey found that 50% of people would prefer to work for a company with a strong environmental policy. The client side demand is an increasing imperative for many law firms tendering for work, both commercial and public sector clients now require their providers to evidence their commitment to, and action on, sustainability as part of the tender process. This coupled with the increase in legislation such as UK’s Energy Savings Opportunity Scheme (ESOS), and the pressure to attract and retain the best new talent into the business all contribute to the shift towards sustainability becoming part of ‘business as usual’.

However, at the LSA we are aware that for many small to medium sized firms this is not an area in which they have had much experience and starting from scratch it can feel like an impossible task. The LSA is an inclusive movement of legal firms and organisations committed to working collaboratively to take action to improve the environmental sustainability of their operations and activities. Now approaching its tenth anniversary the LSA supports its 200 member firms with a range of resources and tools that offer guidance and support that sustainable working. These resources fall into three main categories – quick wins, employee engagement and culture change.

The Report

Employee engagement and culture change go hand in hand and medium and smaller law firms are at a distinct advantage in this area.

The leadership of senior partners is vital to support this culture change but within a smaller practice generating buy in and enthusiasm can be easier. Resources the LSA can offer firms trying shift their culture include advice on running a Green Week, employee engagement initiatives and our annual travel challenge to promote sustainable travel.

It is about running your business more responsibly and saving money in the process.

However, its about far more than just money, the increasing demand from clients, employees and from legislation mean that thinking and acting sustainably is no longer a ‘nice to have’ optional add on, it is becoming a business and moral imperative.

28

Quick wins, such as energy saving tips, case studies and guides, examples of cost saving measures and simple steps (such as duplex printing or a “think before you print” maxim) may seem blinding obvious and too simple to mention but our experience shows that firms find them helpful – particularly where there is no dedicated environmental team or individual in the business.

Underpinning all these initiatives is the LSA’s commitment to measuring our members’ environmental impact, year on year, through the use of the bespoke Carbon Footprint Tool. This tool developed and run by Greenstone on behalf of the LSA is a vital, free resource for firms of all sizes to measure and monitor the carbon associated with their electricity, gas and water use as well as their business travel. In 2016 16 firms with 300 or fewer employees reported and, of those, 7 firms had fewer than 100 staff.

The Carbon Footprint Tool as with all LSA resources is free for LSA members – and the LSA is a free network open to all UK law firms and in house legal council. We strive to make it easy for firms to rise to the challenge set by David Rivkin and the COP21 Paris initiative as well as that set by clients. As Jeff Twentyman, LSA Chair, partner at Slaughter and May, points out in his foreword to the Annual Report “so far as expectations are concerned, many of our clients have expectations of their suppliers (that’s us!), but we also want our profession itself to acknowledge responsible, sustainable business practice as part of what we expect of ourselves…We need to keep calling out colleagues when we see things happening that are neither sensible nor sustainable.”

Legalsustainabilityalliance.com. ■

Third Party Property Law

TO AIRBNB OR NOT TO AIRBNB?

By Oliver Radley-Gardner and James Tipler, Falcon Chambers At the date of writing there are over 300 properties in central London available on the Airbnb website. Letting someone borrow a flat for a weekend, or for a week over the summer, is surely of concern to no one? A little bit of extra income is always a nice thing to have, when times are tough. Sharing is so Zeitgeisty.

Enter the party-pooping property lawyer. One cannot help notice that, of the properties on offer, a number of them are flats. Those will be almost invariably be held on long residential leases, and those leases will contain covenants controlling how the flats can be used. Whether flats or houses, a number of them will also be subject to residential mortgages, which will also contain mortgage terms, and those mortgage terms may prohibit commercial use, require residential use, and limit the right to let. Whether flats or houses, the home contents and building insurance policy may contain contractual obligations as to how the insured property and its insured contents are to be dealt with, occupied and secured. Whether flats or houses, there may well be some restrictions on use imposed under planning law which the tenant may separately have covenanted to observe (although, in an apparent endorsement of the sharing economy, the new s.25A of the Greater London Council (General Powers) Act 1973 essentially provides that using residential premises to offer guests temporary sleeping accommodation for a profit à la Airbnb will not constitute a material change of use requiring planning permission provided the number of nights the premises are so used does not exceed ninety in a given year) The tenant may also have covenanted not to do anything that voids his landlord’s insurance. We will focus on leases, but property owners without a buy-to-let mortgage product and insurance policies may also wish to read on.

Typically, a residential lease will regulate (a) user (by positively limiting use to residential, but sometimes also by setting out classes of prohibited uses, whether by general words (“commercial use”), or by reference to classes of prohibited activity (“not to use as a fried fish shop”), or some mixture of the two; and (b) alienation, by preventing letting of the whole or part (whether subject to consent or not), restricting the ways in which alienation can occur, or limiting the time at which alienation can occur; and (c) conduct, by restricting by reference to covenants or regulations nuisance, noise, parties, music, annoyance, and immoral and illegal user and the use of common parts and shared facilities (which may hamper the ability to throw a good party).

And this is where the problems start. A bit like the adage about being pregnant, there is no rule that a covenant can be breached if it is only breached a bit. You are either in breach, or not. If you are in breach, then a number things can happen. You can be on the receiving end of an injunction to stop you doing it again. Or you can find yourself before the First Tier Tribunal (Property Chamber) trying to argue that there is no breach at all. If you fail on that, you may well find that you receive a notice under section 146 of the Law of Property Act 1925. After that, you may find that you are in the County Court defending possession proceedings on the grounds of breach of covenant. You will probably then apply for relief from forfeiture, promising never to do it again. By that time you will have picked up the landlord’s costs in the County Court, and also, if your lease contains a standard costs covenant, for the FTT as well (though you will probably have to pay for that anyway under any contractual provision (which are standard): Freeholders of 69 Marina v Oram and Ghoorun [2011] EWCA Civ 1258).

At that point, the handy income from a few days or weeks of use suddenly seems less handy.

NEMCOVA V FAIRFIELD RENTS Facts Ms Nemcova has a flat in a residential block in Enfield. She advertised that flat online, using her own website, as being available for short-term lets, and let it out on that basis, generally to people coming to London on business. The lettings were for about 90 days a year, with guests staying at the flat for 3 or 4 days a week. Under her residential long lease, she promised not to assign, underlet or part with possession of the flat in the last seven years of her lease without the landlord’s prior consent. She promised not to alienate part of her flat only. She also promised to abide by various restrictions, including not using the flat otherwise than as a private residence. She therefore could underlet or grant occupational licences (conferring a right to occupy and not to possess), without restriction, the whole flat provided she did so prior to the last seven years of her lease.

Argument Ms Nemcova argued that, in the absence of (i) a positive obligation requiring her to live in the flat, (ii) any express restriction on underletting (save as provided above), and (iii) a prohibition on business user, the use of the flat for short-term lets to visitors did not infringe any provision of the lease. The lease obliged her to use the flat as a private residence. This was not breached, she argued, as either she was using it for that purpose, or the short-term letting fulfilled that purpose. There was no obligation that the flat be her residence. All that mattered was that, as a matter of configuration and appearance, the flat looked like a residence.

Result That argument was rejected by the First Tier Tribunal, and rejected also by the Upper Tribunal on appeal. Applying Caradon DC v Paton [2000] 3 EGLR 57 and Falgor Commercial SA v Alsabahia Inc [1986] 1 EGLR 41, the First Tier Tribunal decided that use as a private residence meant the same as use as a home. Use by a visiting businessman as a temporary pied-à-terre was by definition not use as a home, and hence not use as a private residence. That being the natural language and meaning of the covenant, it meant that it was not open to the tenant to argue that the covenant should be construed more narrowly, contra proferentem. The First Tier Tribunal found a breach of the private residence condition. Ms Nemcova appealed.

Quite apart from that, it is clearly established in the authorities that, once one gets involved in the activity of short-term lets, one is using one’s flat for business use, and not purely residential use: see Tender v Sproule [1947] 1 All E.R. 193 and Falgor, above.

On that basis, His Honour Judge Stuart Bridge rejected Ms Nemcova’s appeal. He explained 53. I have reached the view, consistent with the decision of the Ft T, that the duration of the occupier’s occupation is material. It does seem to me that in order for a property to be used as the occupier’s private residence, there must be a degree of permanence going beyond being there for a weekend or a few nights in the week. In my judgment, I do not consider that where a person occupies for a matter of days and then leaves it can be said that during the period of occupation he or she is using the property as his or her private residence. The problem in such circumstances is that the occupation is transient, so transient that the occupier would not consider the property he or she is staying in as being his or her private residence even for the time being.

54. Having considered the context of the grant of the lease, and the nature of the intended relationship between lessor and lessee taking account of the obligations entered into, I am of the view that in granting very short term lettings (days and weeks rather than months) as the appellant has done necessarily breaches the covenant under consideration.

The Judge correctly qualified his judgment, noting each lease turned on its own terms: “Each case is fact-specific, depending upon the construction of the particular covenant in its own factual context. It is not possible therefore to give a definitive answer to the question posed at the beginning of this ruling save to say somewhat obliquely that ‘It all depends’.” However, even with that qualification in place, anyone familiar with the terms of a standard long residential lease ought to appreciate that short-term lets will commonly, perhaps almost invariably, amount to an actionable breach of a use and (if applicable) alienation covenant, and perhaps also of any properly promulgated regulations relating to conduct and behaviour. Tenants under long leases may be welladvised to consider carefully whether that pot of gold is really as attractive as it looks.

One saving grace: unless there has been acquiescence, a requirement to use flat as a residence will usually impliedly oust any business user – at least the landlord and tenant will not accidentally find that the long lease has drifted into Part 2 of the Landlord and Tenant Act 1954: Trustees of the Methodist Secondary Schools Trust Deed v O’Leary [1993] 1 E.G.L.R. 105.

The Report

29

Conveyancing Focus

How Technology is Evolving the Conveyancing Market Recently, Apple announced the release of their latest iPhone, and as is seemingly tradition with these releases, there is often a controversial twist involving legacy standards and processes that shake up the status quo, ones that show Apple as a frontrunner of technology.

These moves have included the removal of CD and disk drives in Apple laptops; the changing of charging ports; and most recently, the universal audio jack has been replaced by lightning port, causing much heated debate amongst consumers. However, all these decisions, whilst contentious, are geared towards Apples’ goal of driving the market forwards and making the consumer think differently.

from the risk/reward model that this offers. InfoTrack are one such technology thought-leader who, similarly to Apple, demonstrate an understanding of driving change in a market through a process of evolvement. InfoTrack are introducing solutions that encompass the process from searching through to SDLT submissions and AP1 transfers, and most recently, the introduction of electronic contract packs (eCOS).

So how do Apple and their strategic product plays apply to the conveyancing sector? Technology does not distinguish between industries. There are many companies that create technology specifically for the legal industry, and are working to push the limits of the legal process status quo, driving the market to invoke change.

eCOS is a paperless solution that offers an electronic alternative for preparing and exchanging contract packs (including the TA6 and TA10 forms) between the buyer, seller and their solicitors. Electronic contract packs are a great example of the type of technology that consumers now expect from their conveyancer during the selling process. These Contract Packs are lodged in InfoTrack’s portal and can be accessed from any device, at any time. Utilising this technology avoids delays that are often a result of postage, making eCOS technology an appealing advance for the conveyancing process.

However, it is not only the companies but also the early adopters of new tech that are needed to push changes in the market ahead, and within the legal world, law firms will find themselves benefitting

Unique to InfoTrack, the development of the eCOS is a strategic move to drive change in how conveyancing is conducted, and to encourage law firms to move from legacy based, manual processes to working predominantly in an electronic environment.

Companies who take a trail-blazing approach like InfoTrack and Apple, aim to make an impact and lasting contribution on a market.

However, they are also aware that implementation can be a slow process of adoption which is why evolution, over revolution, is important. In the conveyancing world where faster, safer, smarter solutions are needed sooner rather than later, it is imperative that the profession are adopting technology from businesses who push the boundaries to drive the market forward. â–

By Adam Bullion, General Manager of Marketing, InfoTrack.

30

The Report

Conveyancing Focus

Environmental searches: a simple solution to the complex issue of flood risk.

In Summer, we witnessed flash flooding on an almost biblical scale.

In parts of Southern England, cars were caught in rising floodwaters and businesses were forced to close as almost a month’s worth of rainfall fell in just one hour.

There are many common misconceptions around flood risk.

When we think of flooding, there’s a tendency to picture a river that’s burst its banks. However, that’s not always the full story.

Did you know the Environment Agency estimates that more properties in England are at risk from surface water flooding than flooding from rivers and the sea?

In its practice note from May 2013, The Law Society draws attention to these hidden dangers, stating: “It may not be obvious when a property is at risk from flooding. Properties do not need to be close to a river or the sea or on low-lying ground to be exposed to flood risk. Surface water, groundwater and overflowing sewers are increasingly common causes of flooding.”

So, how do you make sure that your clients’ property transactions are completely watertight?

“Flood risk is a complex issue but the solution for conveyancers is simple,” says Steve Johnson, Account Director from Landmark Information Group. “The right property search will accurately

identify the level of flood risk at a client’s property while removing the burden of interpretation from the conveyancer’s shoulders.”

Thames Water Property Searches offers Landmark’s standalone Homecheck Flood report, as well as the all-encompassing Riskview Environmental Search, both of which offer a fully practice note compliant flood risk assessment.

“While misconceptions may abound, it is common knowledge that buying a home in an area prone to flooding can make it difficult to obtain a mortgage, obtain suitable insurance cover or sell the property in the future,” says Steve.

“Given the huge negative implications for clients, it is essential that solicitors and conveyancers follow The Law Society’s guidance by addressing flood risk in accordance with the Flood Practice Note,” he adds. “That way both the homebuyer and lender are fully informed before the purchase completes and the conveyancer remains robust in their due diligence.”

If you would like to find out more about our products or would simply like some advice, please do not hesitate to contact our customer experience team on 0845 070 9148 or visit www.thameswater-propertysearches.co.uk

you

www.gcs-title.co.uk | 01435 868050 | underwriters@gcs-title.co.uk Guaranteed Conveyancing Solutions Limited mited is authorised and regulated by the Financial Conduct Authority.

Registered in England and Wales No. 3623950

Legal Indemnity Insurance nsurance

The Report

31

Book Reviews

LEGAL RISK MANAGEMENT, GOVERNANCE AND COMPLIANCE Interdisciplinary Case Studies from Leading Experts Consulting Editors: Stuart Weinstein and Charles Wild ISBN: 978 1 90941 651 2 Globe Law and Business www.GlobeLawandBusiness.com

GLOBAL BRANDS: CASE STUDIES ON RISK MANAGEMENT, GOVERNANCE AND COMPLIANCE – THE LATEST TITLE FROM GLOBE LAW AND BUSINESS An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

Anyone involved in risk management – and who isn’t these days -- should get this book. In this case, to be precise, the area under scrutiny is legal risk management, together with governance and compliance, as the title indicates.

The further discussions on compliance issues include an article on aviation safety considerations, including flight path monitoring, flight into terrain (FIT) and approach and landing (ALA) accidents which, say the editors, ‘have been targeted as being amongst the primary killers in the aviation world.’. (Better not read this if you are planning to fly anywhere any time soon).

Published recently by Globe Law and Business, this is a collection of articles by internationally recognized experts on carefully selected case studies -- each based on rigorous research -- and each a riveting and often sobering narrative of the triumphs and disasters resulting respectively, from triumphantly good -- or disastrously bad -- risk management practices. The salutatory lessons in every chapter amply illustrate what -- and what not to do -- in planning and implementing an effective risk management strategy.

Compliance issues also arise in the terse and information-rich discussion of the case of the Attorney General of the State of New York v Barclays Capital Inc., a complex matter involving technology-based marketing of securities in contravention of an anti-fraud statute known as the Martin Act. The article describes the ramifications and the consequences, not to mention the eventual costly outcome.

The book kicks off with the biggest and most compelling case study of them all – one with world changing consequences and yet to be resolved: Britain’s momentous decision by referendum to exit from the European Union. Editors Stuart Weinstein and Charles Wild, together with Matthew Whalley, refer to it as ‘Brexit and Legal Risk: a Case Study in the Making.

With its focus on cases involving big international brands and big money -- and the resulting diverse array of insights and revelations, the book should prove an eye-opener to practitioners, particularly international lawyers and indeed anyone involved in the management of legal risk in both the private and public sectors and the non-profit sector as well.

It is fair to say that each of the case studies covered holds its own special fascination. Take for example, the scandal of FIFA and the high-profile investigations concerning its governance in which corporate governance is of course, the key issue.

Analytically discussed here is the intervention by the U.S. Department of Justice in the form of a 47-count indictment against fourteen Defendants (including one at the top of the tree).

Note also that the book is intended as a case study companion to Globe’s previously published bestseller: ‘Legal Risk Management, Governance and Compliance: A Guide to Best Practice.

32

The Report

The publication date is cited as at 2016.

Looking for a simple solution for legal indemnities?

Cover is just a click away.

Our free residential online service is easy to use.

Just follow these simple steps:

Register and start ordering today!

or call 020 7256 3847 Unable to meet our self-issue criteria or need cover for new builds, development or commercial risks?

Our bespoke underwriting team have the expertise to assist you, please email enquiries@crminsurance.co.uk Conveyancing Risk Management Limited is authorised and regulated by the Financial Conduct Authority, Registration No. 481621.

Registered in England No. 04568951. Registered Office: 150 Aldersgate Street, London EC1A 4AB.

Book Reviews

AIR CARGO INSURANCE

By Malcolm A Clarke and George Leloudas ISBN: 978 1 13879 323 1 (book) 978 1 31576 140 4 (ebook) INFORMA LAW FROM ROUTLEDGE, TAYLOR & FRANCIS GROUP, MARITIME AND TRANSPORT LAW LIBRARY www.informa.com

THE FIRST TREATISE ON AIR CARGO INSURANCE COMPRISING PROPERTY AND LIABILITY COVER An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Considering that thirty percent of world trade (in terms of value) consists of goods transported by air, it is surprising to learn, that according to the authors of this book, ‘air cargo insurance is a subject neglected in insurance literature.’ This book, they say, aims to fill this gap by providing what they refer to as ‘the first treatise on air cargo insurance comprising property cover for cargo-interests and liability cover for carriers.’

In today’s business climate when acquisition of overseas markets has become more of an imperative that ever, it becomes imperative that practitioners in shipping and transport law add this book to their library collections.

Published by Informa Law from Routledge, the book functions as a much needed addition to Informa’s ‘Maritime and Transport Law Library’ of some forty or so volumes. The book covers virtually every conceivable aspect of air cargo insurance, with the first chapter focusing on general principles, pointing out that the rule of law governing contracts of air cargo insurance is that which governs the formation of most other commercial contracts. There are some obvious differences though, including primarily, the relationship between air carriers and freight forwarders (who in most circumstances, transport air cargo to and from airports).

The second chapter gets down to specifics, explaining that the very term ‘air cargo insurance’ is an artificial one, being ‘an amalgam of property insurance and liability insurance’. For those having only a passing

familiarly with this area of law, this chapter comes up with a couple of surprises. One in particular is that air cargo insurance is not one of the priorities of the aviation insurance markets. Apparently most regulators do not impose mandatory insurance requirements on either cargointerests or air carriers. The most notable exception is a specific European Regulation, which is analysed in considerable detail.

Subsequent chapters cover, respectively, insurance claims by cargointerests, citing the Montreal Convention… liability insurance… air cargo liability insurance claims… and finally, air cargo property claims.

This is certainly a formidable work of scholarship on the part of authors Malcom A. Clarke and George Leloudas, who together express the hope that it will be used as a springboard for further research on air cargo insurance, which unfortunately, according to the authors, is widely considered as ‘a subspecies of marine insurance law.’

Let’s hope then, that thanks to this book and related research, air cargo insurance will no longer be considered the poor relation of marine insurance law. In the meantime, researchers will value the book’s copious footnoting and its inclusion of extensive tables of cases and of legislation, directives and conventions. Ambitious shipping lawyers, alert to change and wishing to extend their expertise into air cargo insurance, will find this book invaluable.

The publication date is cited as at 2016.

BREAK CLAUSES (2nd Edition)

By Mark Warwick QC and Nicholas Trompeter ISBN: 978 1 78473 034 5 JORDAN PUBLISHING LIMITED also available as an eBook www.jordanpublishing.co.uk

AN OFTEN OVERLOOKED AREA OF LEASES AND CONTRACT LAW: SO WELL EXPLAINED

BY WARWICK AND TROMPETER IN THEIR NEW SECOND EDITION FROM JORDAN An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers The authors of this esteemed work, Mark Warwick QC and Nicholas Trompeter, have undertaken a substantial re-write of the text for the second edition. They comment that the blame for the increase in the large number of cases cited lies on their shoulders and not that of the judiciary.

The value of this book is that the case-law included here has tended “to emphasize the importance of strict compliance with the conditions in a break clause, and the content of the break notice” which can often be overlooked.

And prominent amongst the authorities emphasizing the importance of the careful drafting of a break notice is the decision in Siemens Hearing Instruments Ltd v Friends Life Ltd [2014] in the Court of Appeal.

that an apparently relatively niche topic such as break clauses in leases can provide enough in the way of legal problems and issues to justify a book running to over 300 pages and over 500 reported cases”.

As advisers and professional will know, it is no surprise that break clauses in leases “have given rise to so much difficulty” as Neuberger puts it. He goes on, saying that “experience shows that there is something about the landlord and tenant relationship generally that has a tendency to produce uncertainties, conflicts and disputes, which require legal advice and often end up in court, in arbitration or in mediation”. And this is where “Break Clauses” comes into its own as a leading statement on a very specific area of the law of leases, so well and clearly structured which allows lawyer and layman alike, to deal with the problem in hand.

Another most important topic which the authors have given its own chapter is the recovery of ‘overpaid’ rent and other sums: subject-matter which often features of great importance when one first sees the client with a rent problem.

The last word must be left to Neuberger as it is surely an excellent and much needed book “which treats a difficult and significant topic very well both academically and practically”.

So, the Supreme Court decision in Marks and Spencer plc v BNP Paribas Services Trust Company (Jersey) Ltd [2015] is well covered by a consideration of the implication of a term as to the repayment of rent and detailed discussion of the main points arising from this case.

This book is fundamental for your law library if you act in break clause cases which can often cover ancillary matters such as insolvency, assignment, estoppel, mistake, side agreements and unjust enrichment.

We have found this title the best short statement of break clauses available for practitioners and litigants in person today.

Therefore, it can be no surprise that David Neuberger writes in the Foreword that “it is striking, and to the uninitiated it may be surprising,

34

The Report

The law is stated as at 25th February 2016

Book Reviews

DATA PROTECTION- The New Rules

By By Ian Long ISBN: ISBN: 978 1 78473 213 4 JORDAN PUBLISHING LIMITED also available as an eBook ww.jordanpublishing.co.uk

A STRAIGHTFORWARD EXPLANATION OF THE MINEFIELD OF COMPLEX RULES AND REGULATIONS WHICH MAKE UP TODAY’S MODERN DATA PROTECTION LAWS An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This excellent short book by Ian Long is substantially over due for lawyers and lay people alike. He says that this book is essential reading for all data controllers and data processors “and anyone responsible for handling personal data” which is basically all of us today! We thought this book one of the best detailed short statements on data protection available today.

In the Preface, Long writes that data protection has become a “minefield of complex rules and regulations” so his aim, successfully achieved is to produce this excellent short book and his accompanying video which can be viewed on the Jordans website and is most helpful.

The author also talks about personal data describing it as “hedged around with all sorts of controls to ensure its safety from prying eyes”.

Hmm! There is much cynicism around this point although Long goes on to say that the new European Union Data Protection Regulation “will unify and strengthen the plethora of laws that affect every organisation, large and small, that handles personal data”.

The list of those included as ‘persons affected’ cover everyone involved in handling data relating to client, customers, employees and “other individuals” all of whom will be an excellent market for this book as its straightforward approach will appeal to all levels of readership.

Long’s intention has been to condense a mass of EU and UK documentation into one practical and easy-to-read manual which guides

the reader through all the relevant changes clearly and simply. And we, the readers and users, certainly need this advice as the data protection rules just continue to get more and more complex (quite unnecessarily!)

The book covers the following information for you and your business: a simple, comprehensive description of the legal and regulatory provisions; a detailed analysis and commentary on the business requirements; clear examples and case studies; and sample data protection and information security policies.

Good advice is on offer throughout the book because the basic rule to be followed is that “you must comply and be able to show that you comply.” That is because you have new requirements and obligations to meet. The author says that the new rules require many changes to business systems, policies and procedures and the entire approach of organisations and professions towards personal data- “now is the time to prepare for the new regime”!

A very clear conclusion can be drawn with this short paperback – it is essential reading for all data controllers and data processors and anyone responsible for handling personal data. That is a lot of people!

So we can foresee a very wide catchment area for readership with Ian Long’s particularly impressive and readable work. Thank you.

The law is stated as at 31st May 2016.

KEATING ON CONSTRUCTION CONTRACTS (10th Edition)

By Stephen Furst QC and Sir Vivian Ramsey ISBN: 978 0 41405 571 1 SWEET AND MAXWELL/THOMSON REUTERS www.sweetandmaxwell.co.uk

www.thomsonreuters.com

CONSTRUCTION CONTRACTS EXAMINED WITH THOROUGHNESS AND CLARITY: THE NEW TENTH EDITION OF KEATING IS OUT NOW An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This long-established and authoritative work of reference from Sweet & Maxwell deals with the resolution of construction disputes – never an easy task as practitioners at the Construction Bar can attest. If you are one such practitioner faced with the complexities inherent in such disputes, not to mention the often enormous amounts of money at stake – this book should help you cope with whatever challenges ensue.

First published in 1955 and updated at regular intervals thereafter, ‘Keating on Construction Contracts’ has become a definitive work in this area of law and now emerges as authoritative as ever in this new tenth edition.

Containing much new material since the 9th edition of five years ago, it incorporates the most recent developments by which construction disputes are resolved, including the increasing use of and dependence upon -- mediation and arbitration, especially in matters relating to international contracts. It therefore includes, for example, sections on mediation and dispute boards from contributors Rosemary Jackson and Robert Gaitskell.

In the words of the editors Stephen Furst and Sir Vivian Ramsey, the Technology and Construction Court in London and its regional centres ‘continues to take the lead in providing efficient and… cost-effective resolution for domestic disputes and functions as the chosen forum in international contracts’. International arbitration, especially in London, they add, ‘continues to flourish.’

There is therefore much commentary also on the significant construction cases that have been decided in appellate courts. There is, for example, an updated chapter on the SCL Delay and Disruption Protocol. Each case and/or regulation is

explained and in a lucid, plain English style that is typical throughout the book.

It is fair to say that every practitioner at the Construction Bar, from novices to experts, will find that this book offers welcome assistance in helping them find their way around and through the complexities of this formidable regulatory environment. Take for example, Clause 61 – and this is only one example – which (over six pages), is examined and explained in detail.

As the editors point out, the law of construction contracts is a part of the general law of contract and is not governed by any general codifying statutes. They confirm, however, that ‘where the general principles of the law of contract apply to problems of common occurrence in construction contracts, they have been dealt with in detail in this book.’

Although over 1,200 pages in length, the book has been carefully organized for ease of use, with numbered paragraphs throughout, a detailed table of contents, individual lists of contents at the beginning of each chapter and a 48-page index.

Also note the more than 190 pages of tables of cases, statutes, statutory instruments and much more, plus standard forms of key contracts and two appendices. Featuring the expertise and insights of 28 expert contributors, this new edition of Keating belongs in every construction practitioner’s professional library.

The editors have aimed to state the law as of 1 January 2016 and have also sought to incorporate significant changes at proof stage where possible.

The Report

35

Manag ge your probatte mattters efffficiently

Ma aximise your p prrofit marg gins Q kly produce a single estate account docu Quic ument including all matter detail G Gener ate IHT forms quickly and accurately Continue your work on the move using the LEAP Mobile App N Server required - Simplify your IT and lower your support costs No

V Visit

leap.co.uk/probate/ to find out more

0843 713 0135 | info@leap.co.uk | www.leap.co.uk