Clapham Omnibus Spring 2016

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CARRIE DUNCAN & DAVID EMMERSON

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CLAPHAM OMNIBUS the journal of the South London Law Society Spring Issue 2016 - www.southlondonlawsociety.co.uk

› Clinical Negligence › Conveyancing Focus › Free Wills Month › Probate

Inside this issue:

Contents

Contents 5 PUBLISHER Benham Publishing Limited 3tc House 16 Crosby Road North Crosby Liverpool L22 0NY Tel: 0151 236 4141 Fax: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com

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ADVERTISING AND FEATURES EDITOR Anna Woodhams

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PRODUCTION MANAGER Neil lloyd ACCOUNTS DIRECTOR Joanne Casey MEDIA No. 1463 PUBLISHED February 2016 © Benham Publishing Ltd LEGAL NOTICE © Benham Publishing.

None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press.

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Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

DISCLAIMER The South London Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation.

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

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

COVER IMAGE Carrie Duncan & David Emmerson, Anthony Gold

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INTRODUCTION

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NEWS

12 JUNIOR LAWYERS DIVISION

31 18 CLINICAL NEGLIGENCE 22 FREE WILLS MONTH

13 INTERVIEW

25 CONVEYANCING FOCUS

15 MANAGEMENT

30 PROBATE

16 CYBER TERRORISM

34 BOOK REVIEWS

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Introduction

Officers President

Vice-President

Council Member

Gareth Ledsham

Robert Hush

David Taylor

Tel: e-mail:

Tel: e-mail:

Tel: e-mail:

020 8394 6413 gareth.ledsham@Russell-Cooke.co.uk

020 7815 6725 hushr@lsbu.ac.uk

020 7228 0017 dxt@hanne.co.uk

Treasurer

Hon. Secretary

Magazine Editor

Andrew Pavlovic

Sarah Hughes

Eileen Donaghey

Tel: e-mail:

Tel: e-mail:

020 8394 6455 andrew.pavlovic@Russell-Cooke.co.uk

020 7940 4060 sarah_hughes@anthonygold.co.uk

Tel: e-mail:

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Web Address: www.southlondonlawsociety.co.uk

020 7940 4038 eileen.donaghey@anthonygold.co.uk

Introduction

President’s Review A very warm welcome to this latest edition of the Clapham Omnibus and a Happy New(ish!) Year to all our readers.

I am delighted to be able to open this edition by offering heartfelt congratulations to SLLS Committee member, and Visiting Professor in Clinical Legal Education at London South Bank University, Professor Sara Chandler, who is one of eight lawyers recently to be approved by Her Majesty the Queen to be appointed Queen’s Counsel Honoris Causa.

The award of Honorary QC is made to lawyers who have made a major contribution to the law of England and Wales outside of practice in the courts. In the case of Sara, she is recognised for her unwavering contribution to pro-bono and human rights law. In particular, Sara has recently been developing the concept of legal education through legal advice clinics, in which students gain firsthand experience of the law 'at the coal face' under the supervision of qualified lawyers.

This presents a great opportunity for the students not to mention providing an invaluable resource to the community which the university serves.

Sara is also active on the international front and regular readers will be familiar with Sara's articles on international human rights issues. Last year she was elected Vice President of the Fédération de Barreaux d’Europe (European Bars Federation) and will be elected President this year. It is a fantastic achievement and further underlines why the award to Sara of Honorary QC is so well deserved.

The Committee has recently resolved to become a member of the FBE and I look forward to reporting back to members in

the summer edition of the journal following the FBE congress taking place in Strasbourg in May.

South London JLD on date 23rd March.

Email Louise.Taylor@Anthonygold.co.uk for further details or to book.

On a more somber note, readers may recall the Society’s response to the Ministry of Justice’s consultation on Court closures in the autumn of last year. The MOJ had earmarked 91 county and magistrates courts for closure and following the consultation has decided to close 86 of them. Unfortunately, two such closures are Woolwich County Court (scheduled to close between April and June of this year) and Lambeth County Court (scheduled to close between July and September 2016). I am sure readers will agree this is a sad loss to the south London clients whom we serve and Justice minister Shailesh Vara's reassurance that 97% of citizens will be able to reach their required court ‘by car within an hour’ is unlikely to be of much comfort to the many south London court users who cannot afford a car and for whom even the cost of public transport can be prohibitive.

As always, if any readers have ideas of projects they would like the Society to take up, or items they would like to see in the journal, please let me know.

Finally, thank you to all those who attended the Society’s Annual Dinner at the Kia Oval last year. Everyone to whom I have spoken enjoyed the event immensely. Photos of the event can be found in this issue. Plans are already under way for this year’s dinner which we hope will build on the success of the last.

There are also a number of other events in the offing - including a quiz being hosted jointly with

Best wishes, GARETH LEDSHAM President South London Law Society

COPY DEADLINES Summer 2016 Autumn 2016 Spring 2017

11th July 2016 14th October 2016 17th February 2017

Members wishing to submit editorial please contact us before copy deadline.

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

Email: Tel:

anna@benhampublishing.com 0151 236 4141

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News

Losing litigation privilege - by mistake Andrew Pavlovic is an Associate in the Commercial/ Regulatory Litigation department of Russell-Cooke.

In the case of Hallows v Wilson Barca LLP [2015] EWHC 3188 (CH), John Jarvis QC (sitting as a Deputy Judge of the High Court) found that a solicitor had waived privilege in his communications with a local authority by failing to inform them that the communications were for the purpose of litigation.

BACKGROUND The Claimant (Hallows) brought a claim against the Defendant (Wilson Barca LLP), alleging that they had been negligent in registering his title to a plot of land, by failing to register that the land benefitted from certain rights of way, significantly affecting its development potential.

To assist the claim, the Claimant’s solicitor sought to establish whether planning permission would have been granted for development of the land, had the rights of way been registered. He contacted the planning department of the London Borough of Camden, stating that he was instructed by his client to consider the merits of a possible application for planning permission to erect a single dwelling. He requested pre-planning advice as to whether permission was likely to be granted.

Crucially, the solicitor did not inform the planning department that the advice was sought for the purpose of litigation (although he did ask that the request be treated confidentially). The decision not to refer to the litigation was a deliberate one. Had he informed the planning department that he was not seeking advice on a genuine application, but a hypothetical one to assist his client in litigation, it was likely that the planning department would have been unwilling to provide the advice.

The planning department reviewed the application on its merits (including attending the site and discussing matters with the Claimant) and provided the advice sought.

The Defendant’s solicitors made a request for information on planning matters pursuant to the Freedom of Information Act 2000 (“FOIA”), and were provided with the advice given to the Claimant’s solicitors.

The cat being out of the bag, the Claimant’s solicitor looked for a way to get it back in again, at least insofar as the litigation was concerned. The Claimant sought an injunction restraining the Defendant’s use of the advice in the proceedings.

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Documents created to further litigation usually need not be disclosed to opponents because they are protected by “litigation privilege” but a recent case has highlighted the risk that the privilege may be waived unintentionally by the unwary.

THE JUDGMENT

CONCLUSION

The Deputy Judge considered (1) whether the advice provided by the planning department was privileged, (2) whether the privilege had been lost or waived, and (3) if privilege existed and had not been waived, what relief should be granted.

The Court found that the Claimant’s solicitor had been in a difficult position. Had he informed the planning department that the advice was sought in the context of litigation, the advice would have retained litigation privilege (and been exempt from disclosure under section 42 of the FOIA), but probably would not have been provided at all. Whilst the Deputy Judge did not criticise the solicitor for taking the course that he did, he found that in doing so he had run the risk of the advice coming into the public domain.

The Deputy Judge found that litigation privilege attached to the advice the Claimant’s solicitor had received. It was advice sought from a third party for the dominant purpose of aiding the Claimant in existing litigation, namely to establish whether planning permission would have been available to the Claimant but for the Defendant’s negligence. Had it been, then the damages were likely to have been over £2 million.

However, the Deputy Judge found that where advice had been sought from a public body with no indication that the advice was sought in the context of litigation, the solicitor requesting the advice had to bear in mind the body’s statutory duty to provide information to the public under the FOIA. By acting in a way that put the information at risk of coming into the public domain, the solicitor had impliedly waived the privilege that existed and accordingly, privilege could no longer be attached to the advice the moment it was made public under the FOIA. The Deputy Judge concluded that even if the privilege had not been waived, it would not have been equitable to grant injunctive relief in any event, not least because the way in which the Claimant’s solicitor had handled the matter had led to the advice coming into the Defendant’s hands. There was also a public interest in ensuring that the evidence came before the Court.

A solicitor in a similar position would be wise to alert his client to the risk that in seeking advice of a body subject to the FOIA without referring to the litigation, privilege may be lost and the claim damaged. Choosing the preplanning advice route rather than conventional expert evidence may also be seen as a fairly high risk approach in the absence of a strong reason to believe the answer will support the claim.

Andrew Pavlovic Associate +44 (0)20 8394 6455 Andrew.Pavlovic@russell-cooke.co.uk

News

South London Law Society Annual Dinner

On 4th November 2015, members of the South London Law society gathered for their annual dinner. The dinner which was held in the Kia Oval, was well attended by many of the members and other South London firms. Joe Egan, Deputy Vice President of the Law Society was the guest speaker.

Mark Hudson, the Regional Manager of Greater London for the Law Society said “South London Law Society hosted a very enjoyable evening in the impressive setting of the Kia Oval. Law Society deputy vice president Joe Egan attended and in a speech with many cricket references, provided

thanks to SLLS for providing regular responses to the consultations that are sent out from Chancery Lane; these responses are extremely valuable and demonstrate the influence of your Society. We hope to be able to join again next year!”

Pictured are some of the guests who attended; Eileen Donaghey, editor of the Clapham Omnibus and Eduardo Reyes, editor of the Law Society Gazette.

Get Connected at the next LPC event...

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

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

The next London Property Connection event is on Thursday 17th March between 6pm - 9pm at the Slug & Lettuce, Fetter Lane, London. This is free to attend and is open to anyone who is involved in property. We provide two free drinks and some nibbles.

London Property Connections would encourage all to attend so that we can introduce you to new people and other

Date for the diary...

Quiz Night!

Photo: Chandra Sharma

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

Registration is free.

Simply click on the link: www.meetup.com/london-propertyconnection

23rd March 2016 The SLLC Junior Division are organising a quiz! It will be held in a South London venue, details to be confirmed.

If you’d like to find out more ask Louise.Taylor@anthonygold.co.uk

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News

Regional Review - February 2016 News Gove scraps new legal aid contracting regime

Solicitors urged to embrace CMA review of legal services

The government has announced it is scrapping a controversial contracting scheme for criminal legal aid. In a written ministerial statement, justice secretary Michael Gove said he had decided 'not to go ahead with the introduction of the dual contracting system'.

Solicitors should embrace the opportunity to show consumers what sets them apart from other legal advisers, the Law Society said in response to another review of the sector by an antitrust watchdog.

He will also suspend, for a period of 12 months from 01 April, a second fee cut which was introduced in July last year. Law Society president Jonathan Smithers said Chancery Lane was pleased the Lord Chancellor had listened and recognised that the current situation was ‘untenable’.

Law Society outlines 2020 vision The Law Society has published a landmark report on the future of legal services that pulls together predictions on how the market will change over the next five years.

By 2020, it suggests, the gap between successful and struggling firms will have widened further, speeding up consolidation.

Law Society Chief Executive Catherine Dixon on SRA independence: how are we a profession if we cannot set our own standards?

Government plans to make the SRA totally separate from the Law Society must not be to the detriment of professional involvement in setting standards, the society's chief executive has said.

Catherine Dixon also said that the public interest activities of the society justified its continuing ability to levy the profession through practising fees to fund that work.

Parliamentary report puts finger on rise in number of LiPs A non-partisan study published by parliament has added to the body of evidence attributing the rising number of litigants in person (LiPs) to cuts to legal aid.

A briefing paper produced by the House of Commons library research service includes details of a study into the experiences and support needs of LiPs in private family cases that was carried out for the Ministry of Justice in five courts, including a detailed analysis of 151 cases.

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The Competition and Markets Authority last week announced that it will examine ‘longstanding concerns’ about the affordability of civil legal services and standards of service for both consumers and small businesses.

A planned government consultation on removing barriers to market entry appears set to go ahead in parallel.

Fraud taskforce wants ‘tougher approach’ from SRA to rogue solicitors A major review of the factors behind insurance fraud has laid out a series of recommendations to be adopted in the legal sector.

The Insurance Fraud Taskforce, which has spent more than a year analysing the subject, said more can be done by insurers, solicitors and regulators to bring down fraudulent claims.

Ministers forge ahead with October date for fixed clinical negligence fees Health ministers intend to introduce fixed fees for clinical negligence cases by 01 October - despite not yet releasing a promised consultation on the issue.

Responding to a written parliamentary question, health minister Ben Gummer confirmed the intended start date for fixed recoverable costs for claims, following the outcome of the public consultation.

The consultation will include consideration on the maximum value of claims that would be covered by the new regime and whether there should be any exemptions.

Briggs review: online court needed to cut out lawyers A Landmark review of civil justice has backed the creation of an online court for claims worth up to £25,000.

An interim report from Lord Justice Briggs recommends urgent work to design the

structure and software needed for a reorganisation of courts, particularly the online court. The Judicial Office is now inviting further comments before the final report is completed in the summer.

Online dispute resolution was a key proposal from legal futurologist Professor Richard Susskind and the independent Civil Justice Council in a report to the senior judiciary last February. Briggs was tasked in July to review the civil justice court structure and has reported that he has found a ‘clear and pressing need’ to create an online court for claims up to £25,000.

The report says ODR will give litigants ‘effective access to justice without having to incur the disproportionate cost of using lawyers’.

The review is intended to focus on four topics: • The creation of an on-line court (“OC”) for lower value disputes up to £10,000 initially, and potentially up to a higher threshold if successful.

• Delegated Judicial Officers. Proposals to make much greater use (than currently) of court officers (“DJOs”) of different levels of qualifications and experience to perform mainly routine, simple functions currently performed by judges.

• Number of Civil Courts. The creation of the OC would increase the number of first instance civil courts from two (High Court and County Court) to three.

• Routes of Appeal. Given the 50% increase in the number of appeals but no increase in the number of judges (and an 18% reduction in its staff) the central issue here is how this apparent overload should be addressed ".

LSB to encourage comparison websites to enter the law and challenge regulators over practising fees The Legal Services Board (LSB) is set to make encouraging comparison sites to enter the legal market one of its goals for the next year, along with telling regulators to be clearer about how they spend the profession’s money.

A consultation on its 2016/17 business plan also highlighted the oversight regulator’s push to drive down its own costs.

News

SRA open consultations Training for Tomorrow: assessing competence This consultation is part of Training for Tomorrow, the SRA's response to the 2013 report of the Legal Education and Training Review (LETR) which called for a greater focus of regulatory attention on the standards we require of solicitors both at qualification and on an ongoing basis. The consultation closes on 4 March 2016.

Practice notes Residual client balances This practice note includes advice on: • the rules relating to residual client balances • steps to take to return funds to clients • what to do when the client cannot be traced

What has changed?

• since October 2014, residual client balances of £500 or less can now be dealt with by firms without authorisation from the SRA • references to accountants' letters in section 3 have been removed • section 3 has been updated to include steps you should take to trace your client

Protecting your firm if you fall victim to a scam This practice note includes detailed advice on the regulatory and legal requirements that apply when a firm's client account has fallen victim to scammers overcoming problems which might otherwise lead to its failure and forced closure.

Raising concerns and whistleblowing guidance for staff This practice note includes detailed advice on the regulatory obligations on solicitors to raise concerns and report to the SRA advice for individuals on how to raise concerns about the about the actions of their firm or organisation.

'Raising concerns and whistleblowing' this practice note has been re-cast and • is aimed at solicitors looking to raise concerns about their firm • guidance for firms on their regulatory obligations to report concerns to the SRA, and how to implement a whistleblowing policy, can be found in a separate practice note on Implementing whistleblowing arrangements.

Events The Law Society hosts a range of events: for further details and booking information, please visit our events page: events.lawsociety.org.uk Regional Manager: Mark Hudson Email: mark.hudson@lawsociety.org.uk Telephone: 07794 335818 Twitter: @LSGreaterLondon

What has changed?

• this practice note was previously called

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News Photo: Malcolm MacDonald

Public Law Cases with an International Element: Re N (Children) (Adoption : Jurisdiction) [2015] EWCA Civ This case involved care proceedings in relation to two children of Hungarian Roma parents.

The Local Authority had made applications for care and placement orders with a care plan for adoption of the children in England. The children had spent a considerable period of time accommodated by the Local Authority under section 20 of the Children Act 1989 prior to the applications being issued by the Local Authority.

The children were ‘habitually resident’ in England and, consequently, the courts of England and Wales had jurisdiction under Council Regulation (Ec) No 2201/2003 of 27 November 2003 (known as ‘Brussels IIR’ or Brussels IIA). However, they were also Hungarian nationals.

During the course of the proceedings an issue arose as to whether the case should be transferred to Hungary under Article 15 of Brussels IIR. Article 15 provides for the transfer of the case to other Member States by way of exception, even though the transferring state has jurisdiction under Brussels IIR. After a series of hearings in the High Court this issue ultimately came to be determined at the final hearing.

The judge presiding at the final hearing made a decision to transfer the case to Hungary at the end of the hearing and after hearing all the evidence in respect of the applications by the Local Authority.

The Local Authority and the Children’s Guardian sought permission to appeal the decision, ostensibly on the grounds that the judge was wrong to order the transfer at a final hearing and where he had heard all the evidence in the case relevant to the decision on the welfare issues in respect of the children.

During the course of the appeal the Local Authority raised a new ground of appeal, not raised at the hearing below, about the effect of Article 1(3)(b) of Brussels IIR which excluded ‘decisions relating to adoption and measures preparatory to adoption’ from the scope of Brussel’s IIR. The issue was relevant because of the Local Authority’s care plan for adoption and application for a placement order. The question arose whether care order applications with, either a care plan for adoption, or a placement order application running concurrently, were outside the scope of Brussels IIR as ‘measures preparatory to adoption’ and, therefore, not capable of transfer under Article 15.

This line of argument led to the further question of what jurisdiction the courts of England and Wales have to order the adoption of children, and dispense with the consent of parents, who are foreign nationals.

In his leading judgment the President of the Family Division Sir James Munby emphasised that, as the current law stands, parental consent can only be dispensed with if it can be shown that the child’s welfare ‘requires’ adoption, as opposed to something short of adoption, and that there can be no suggestion that the domestic law of England and Wales is incompatible with the UK’s international obligations, particularly the European Convention for the Protection of Human Rights, nor the jurisprudence of the European Court of Human Rights.

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The President also dealt with a controversy in the law in relation to the applicability of the law of England and Wales to foreign parents and children and, in particular, whether the grounds for dispensing with a parent’s consent to adoption, or changing of the status of a child who is a foreign national ,should be regulated by the law of their ‘domicile’ or ‘habitual residence’ because to do otherwise may mean that the parents’ and child’s status is not changed in their country of ‘domicile’, habitual residence’ or ‘presence’.

The President resolved the controversy by finding that : • Adoption in the law of England and Wales is not a private law transaction but it is the court’s order that alters the status of the child.

• In the law of England and Wales where a court acts to create rights afresh, rather than to declare or enforce rights created by the parties, foreign law cannot apply.

• Adoption and Children Act 2002. creates the jurisdiction for adoption and provides in detail the conditions of its exercise. The court has jurisdiction to make an adoption order if the statutory conditions are fulfilled.

• Foreign law is, however, an important factor to be taken into account in considering the welfare of the child when applying the ‘welfare checklist’ under the Adoption and Children Act 2002 (eg. the likely effect on the child throughout their life of having ceased to be a member of their original family.)

• The court should consider the disadvantages of a child having one status in England and Wales and another in another country against the advantages of adoption. (unless by Convention the country is bound to recognise an international adoption order).

In relation to the scope of Brussels IIR the President found that : • Care proceedings are not ‘decisions or measures preparatory to adoption’ and are within the scope of Brussels IIR even if the local authority’s care plan is for adoption because a care order does not authorise the child to be ‘placed’ for adoption.

• Proceedings for a placement order which authorise that the child to be placed for adoption is a ‘measure preparatory to adoption’ and, therefore, outside the scope of Brussels IIR. • It follows that Article 15 of Brussels IIR applies to care proceedings, even if the local authority’s care plan is for adoption, but does not apply to proceedings for a placement order.

• The care proceedings are distinct and antecedent to the placement order proceedings so that the care proceedings can be transferred where as the

placement order proceedings cannot.

• The care proceedings are stayed in consequence of the Article 15 transfer whereas the placement order proceedings are stayed in consequence of the stay of the care proceedings.

On the issue of the transfer of the case under Article 15 of Brussels IIR, the President reiterated the guidance from Re M (Brussels II Revised: Art 15) [2014] EWCA Civ 152, [2014] 2 FLR 1372.

He emphasised, in particular, that : • The question of transfer should be considered at the earliest opportunity in an appropriately ‘summary’ process, however as a matter of law this did not preclude an application being made at any stage of the process.

• Judicial continuity is a ‘weighty’ factor in determining an article 15 request.

• Evidence should be kept within strict limits in the context of a summary process.

• A court in England and Wales must treat the judicial and social care arrangements of the relevant Member State as equally competent.

• There should be transparency and openness between family courts in England and Wales and consular and other authorities of the relevant foreign state.

• Local Authorities should be pro-active in informing relevant consular official of care proceedings on foot or in contemplation involving their nationals.

The President also found that : • The local authority had misused section 20 of the Children Act 1989 in accommodating the children for a number of months before issuing care proceedings , particularly because of the international element of the case and set out extensive guidance on how section 20 ‘agreement’s should be made between parents to ensure their is valid consent to the arrangements and the parents withdrawal of consent is respected.

• It is as important that there is judicial continuity for cases in the Family Division as in cases before the district and circuit judges in the Family Court. This case had seven different judges hearing various aspects of the proceedings.

The outcome of the appeal was the decision made by the judge to transfer the case was upheld by the Court of Appeal. It was found that the judge did not err in law and undertook a careful evaluation of all the relevant factors in his decision to transfer the case.

by Malcolm MacDonald Barrister, 36 Bedford Row

News

SPEAKING AROUND EUROPE! In September SLLS President Gareth Ledsham, together with Presidents and Council Members of 10 local law societies met Nazario Oleaga, the President of Pictured: Sara Chandler and Jonathan the Federation of European Bar Smithers at the Arc de Triomphe Associations (FBE), at a dinner at Coopers in Lincolns Inn Fields. Our sponsors, Catherine Sutherland and Rupert Foster, from CODEX Legal Translation Service provided the drinks and an informative evening in pleasant company ensued.

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n October the Federation of European Bar Associations (FBE) met in Krakow in a programme of topics dealing with white collar crime, especially tax evasion, trading carousels, money laundering, bribery and corruption. This is a seriously hot topic in some of our European neighbour states as lawyers strive to pursue the dead hand of corruption on democracy. Sara Chandler attended the FBE General Assembly as FBE Vice President, which the Krakow Chamber of Legal Advisers and Bar Association had arranged to be hosted in the Jagellonian University, seat of learning for Nicolas Copernicus. As we debated the issues affecting European lawyers we could admire the painting of Copernicus on the wall of the Old Hall of our hosts. The visit to the University’s museum was a highlight as we walked through the rooms where Copernicus had worked, and admired his scientific instruments. The old city in the centre of Krakow, is full of churches, streets of very old and beautiful buildings and the largest central square in Poland. We were bussed to the Salt Mine, only ten minutes out of Krakow, for dinner and entertained with a brass band. The Salt Mine is enchanting, and well worth visiting. Our hosts also treated us to a river boat reception and dinner with jazz band, and a gala dinner with opera and folk music and dancing.

Krakow was followed by a conference in November in Wroclaw which was organised by the German Polish Forum of lawyers. SLLS Committee member Sara Chandler was asked to speak about the role of international lawyers’ organisations, and did so in her role as FBE Vice President. Then Paris in December to celebrate International Human Right Day and the Paris reopening of the courts.

Sara Chandler joined Law Society President Jonathan Smithers at the Arc de Triomphe in a moving ceremony to relight the flame on the memorial of the unknown soldier. In her role as Vice President of the FBE Sara has met with Judges in the European Court of Justice in Luxembourg, and to Brussels to Photo: Valencia meet with the EU Directorate General in the last six months. Her latest role was to speak at an international conference in Milan in January, and a congress in Valencia in February.

Court of Human Rights, and the theme will be human rights jurisprudence and practice. The dates are 19 to 21 May, so please save the dates and contact Sara Chandler for more information.

South London solicitors will be very welcome to Strasbourg and in October to Luxembourg. Everyone who is interested, please contact sarachandler.lawsociety@gmail.com Professor Sara Chandler is a past President of CWHLS and member of the CWHLS International Committee and Vice President of the Federation of European Bar Associations.

The next FBE Congress will be held in Strasbourg, in the European

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News

New Partner appointments at Anthony Gold

David Emmerson has joined the Anthony Gold Family department as a new Partner in the London Bridge office. Formerly the Head of Family Dispute Resolution and Family at London firm TV Edwards Solicitors for the past five years.

Anthony Gold already have strong Family and Court of Protection teams recognised in Chambers and Legal 500 and a large Property team. The new Partner’s expertise will add to the full package offered to clients.

Carrie Duncan, who was appointed as Head of Private Client, Wills and Probate earlier this month was the first Partner hire in February to strengthen the Anthony Gold Private Client offering. Anthony Gold’s Family team is already recognised in Chambers and Legal 500

Carrie said “I’m excited to bring my experience to an already established team which I will continue to grow in line with the strategy of the firm.

This is a fantastic opportunity to develop the Private Client services of Anthony Gold and work with the well-respected Personal Injury and Housing departments to enhance the overall client offering.”

David Marshall, Managing Partner, said “This is the second new Partner to join the firm this month as part of our strategy to strengthen our Private Client offering. It is fantastic that David Emmerson will be adding his considerable experience to our well-regarded Family team”

If you have a new Partner join your firm please let the editor know so we can feature it in future issues of the magazine. Email Eileen Donaghey on eileen.donaghey@anthonygold.co.uk

THE JUNIOR LAWYERS DIVISION Mala Parmar is the new Chair of the South London Junior Lawyers Division (SLJLD). The SLJLD was set up in 2011 to complement the South London Law Society in supporting junior lawyers across south London.

We have organised a monthly drinks event whereby all lawyers in south London invited to get together and socialise over a drink. The monthly drinks will take place on the first Wednesday of each month from 7.30pm to 10pm at the Southwark Tavern, Borough Market. We look forward to seeing you there!

The purpose of the SLJLD is to serve the needs of its members and this has been achieved in the past by providing valuable networking opportunities as well as interesting seminars. Previous events have included a pub crawl, celebratory drinks for newly qualified Solicitors and Barristers, a topical and interesting seminar on equality and diversity in the legal profession and a moot at the London South Bank University presided over by a High Court Judge.

Membership for the SLJLD is free and open to all junior lawyers (law students, paralegals, trainee solicitors, solicitors, pupils and barristers) up to 5 years PQE / Call who live or work in South London. Please email sllsjuniorlawyers@gmail.com for further information. To keep up to date with the South London Junior Lawyers Division, please find us on LinkedIn (where you will find regular blogs and articles) and follow us on twitter (@SouthLondonJLD).

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Photo: Mala Parmar

Interview

“ TO BE A LAW OFFICER IS TO BE IN HELL ” SAID SIR PATRICK HASTINGS So what is the job of Attorney General like today?

The Attorney General’s role goes back to at least 13th century, and probably much earlier if it had been possible to keep records because of the nature of the appointment. And it is a fascinating role for an MP lawyer to perform as the government’s “personal lawyer”… breaking the bad news to the cabinet!

Jeremy Wright QC MP, interviewed by Phillip Taylor MBE of Richmond Green Chambers.

We have seen interesting occupiers of that office over the centuries and have given the name “Attorney General” to many different legal jurisdictions the world over where some notable names of history crop up (Bobby Kennedy to name just one). And I have met a few of them in over forty years in politics and the law, so has the role and the legal personality changed at all? “No” and “Yes”, in all probability.

And so it was with some eager anticipation that I met the current Attorney, Jeremy Wright, recently in his office in the Commons. For historic purposes, the post is stated as emerging around 1243, when a professional lawyer (of course he was, and I hope he got paid on time) was hired to represent the monarch’s interests in court. It has developed into a political and a demanding - role with Patrick Hastings writing: ’to be a law officer is to be in hell’.

Well I did not see much of that, the brimstone and the very hot temperature that is, when I entered the AG’s office tucked behind the central lobby. Jeremy is a very modern attorney general and we had met before during his time as Prisons Minister in the last Parliament so he comes to us with some previous.

Well, is he “in Hell”? ‘Far from it’, says Wright, when we discuss what he does and his future plans “in the hot seat” after

his steep learning curve. He clearly relishes the role and its heavy workload with that advocate’s gloss we would expect, and he has the air of pleasantness and “unstuffability” which is possibly why the PM appointed him at such a young age!

Wright has been in post for around 18 months with his deputy, Robert Buckland QC MP, the solicitor general. Both are young (Wright is one of the youngest attorneys since the 1600s), from the provincial Bar, and began practice in the criminal courts on circuit. It is law officer work that is fascinating for any barrister.

The attorney general is officially the leader of the Bar of England and Wales and presides over its annual meeting when time permits.

The attorney and the solicitor general attend Bar Council meetings and events, such as the Bar Conference regularly.

Both officers review all the unduly lenient sentence cases, some 400 a year, a ‘relatively steady number’, where about 80 per cent of sentences are changed.

A recent proposed reform from the attorney general is beginning, as a pilot, for a broader cadre of counsel to pursue cases of undue sentence leniency, rather than just leaving proceedings in the hands of treasury counsel. And it seems this proposal has been met with approval.

I suggested that this might be a taste of things to come, leading to a ‘closer working relationship’ with the advocate general for Scotland, Lord Keen of Elie QC. Another area is where the attorney general ‘straddles’ departments, offering legal advice to ministerial colleagues

based on their requests to him - advice that is - ‘given in a way which is comprehensive and more likely to be accepted’ coming from his department.

The days where individual departments now speak to each other has arrived, certainly as far as legal advice is concerned, after years of little liaison. On hard cases, Wright’s view is that where there are difficulties he ‘will never compromise on the integrity of the advice given’, which illustrates very much what he sees as the independence of his role within government: ‘It is the need to know, and not what you want to hear.’ Much the same, then, as the approach taken by a practising barrister, only your client is the government. The attorney general does not attend court as often as some of his predecessors did, although the solicitor general does appear regularly.

So, what of today’s advocacy standards?

The law officer team, for that is what they are, are very much a modern product of the development of a high-quality Bar for England and Wales. Both officers have regular talks with the judiciary and the profession ‘to stand up for the interests of the client’, retaining the ‘cab rank’ principle, something Wright says ‘we must be proud of at all times, especially was the Young Bar going through tough times as we maintain the highest standards of advocacy’.

Lawyers should be in no doubt that there is a reforming wind blowing through our corridors at the moment for this parliament - and it is quickening its pace.

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Management

YES, A BEST - OF - BREED DOCUMENT MANAGEMENT SOLUTIONS IS AFFORDABLE FOR GROWING LAW FIRMS!

by Jon Wainwright, Sales Director, Ascertus Limited

Time and again I hear lawyers at growing law firms wax lyrical about the piles of paper that they have to deal with in their offices, making it near impossible to find information in a timely manner. Often, it’s akin to finding a needle in a haystack. And it’s especially irksome to fee-earners who come from larger law practices and so are accustomed to access to productivity enhancing tools such as document management solutions.

The frustration is compounded in the current digital and mobile business environment, where firms send and receive information on matters and transactions in all manner of formats - email, electronic files, paper documents, SMSs and voice messages.

Consequently, due to the volume of inbound and outbound information as well as the lack of standardisation of formats and key words, document and email management is presenting a huge challenge for the smaller law firms. Manually documenting mattercritical information in an easily accessible and user friendly manner and in compliance with continuously evolving regulation is extremely difficult, time-intensive and costly.

Despite the obvious benefits of document management, the myth that best-of-breed systems are only suitable for large firms rampantly persists in the legal sector. The reality couldn’t be farther from the truth. In fact, growing firms have the most to gain from the efficiency and productivity benefits such systems deliver.

Dispelling the myths Perhaps the biggest misconception among the smaller firms is that best-of-breed document management systems are unaffordable. To the contrary, today there are a plethora of technology and commercial options available to firms.

Foremost, firms don’t need to purchase these applications directly from software vendors. A better approach is to acquire tailored systems from solutions providers who - due to their close association with software vendors - have developed propositions especially for smaller law firms that substantially reduce the cost of ownership and the need to employ internal IT resources. In doing so, they remove the typical obstacles that prevent law firms from deploying best-of-breed document management systems.

For instance, gone are the days when the perpetual licensing model was the only commercial arrangement available for software purchase. Today, there are a variety of flexible licensing options including annual, subscription, usage-based and software as a service (SaaS). In fact, a lawyer can have access to document management system, iManage Work, for less than the cost of an individual's monthly mobile phone rental!

From a technology standpoint, in addition to the traditional on-premises system, firms have available to them the privately hosted model. This allows organisations to leverage all the benefits of cloud technology, but securely. In this model, firms install their own instance of software, run on versions that best fit their needs and have complete control over their data and documents. No databases are shared or accessible by any third parties or external organisations.

Furthermore, a privately hosted document solution greatly improves accessibility and collaboration in an increasingly mobile environment. The technology is advanced and best-of-breed systems allow secure, mattercentric document management capability on the iOS, Android and Blackberry platforms.

This method of application deployment also greatly reduces risk, offers in-built disaster recovery and significantly reduces the burden on IT, administration and support.

Approach to adopting document management solutions Like for any application, firms looking to adopt a document management solution, must first devise a strategy. There are some fundamentals to consider.

Determining what content exists and where it resides - email inboxes, shared folders, physical files - is crucial. Firms should think about creating a seamless business environment in the firm by integrating already deployed technologies with the new document management system.

Also, it’s wise to institute the internal document management policies right up front with reference to how documents should be stored, for how long, who can access them, what folder structures are preferred and such.

Due to the complexity of both the technology environment and transactions, a matter-centric approach to document management is the simplest and most intuitive. This method is also conducive to collaboration and scaling the solution as the business grows.

Mobile working is now pervasive, so it’s worth assessing the type of devices that are likely to be used and on which platforms (e.g.

Android, iOS) so that these requirements can be accommodated as the solution is configured. This is critical to ensuring that the document management solution is able to switch seamlessly between ‘in office’ and ‘on the road’ usage.

Thirsk Winton, a North-East London law firm is a good example of a growing firm that has cost-effectively deployed a best-of-breed document management system. A firm that was genuinely ‘drowning in paper’, today has a document management function that is ‘routine’. The firm has integrated its financial management software and Microsoft Office with its document management system too, making the latter the primary storehouse and knowledge centre for all client and matterrelated activity.

Let alone anything else, simply undertaking the cost of property to house paper, which is then inaccessible to the business is sheer imprudence and a waste of financial resources. Technology systems exist that allow firms to devise tailored and innovative paper flow processes - from creation and maintenance through to destruction and archiving of electronic matter files. Aside from business efficiency, a well-structured document management system aids good client service too. www.ascertus.com

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Cyber Terrorism

No business can ignore cyber-terrorism as a threat

by Robert Rutherford, CEO of QuoStar Solutions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cyber Terrorism

Cybercrime: How well is your client data protected?

Information held by law firms is increasingly becoming a target for hackers.

This is hardly surprising, given the sensitive information often entrusted to law firms by their clients. Hackers’ motives include corporate espionage, IP theft, access to market-sensitive data, blackmail and extortion. Law firms should already be alive to the risks but the issue needs to be further up the agenda, as the threats get ever more sophisticated and the stakes get higher.

Law firms of all sizes are increasingly being targeted by cyber-attacks. This may take various forms, including “spear phishing” (a targeted and personalised e-mail scam containing a malicious payload) and exploitation of software flaws. Gone are the days when the most sophisticated abuse of a law firm’s IT systems was a scam e-mail from a fake Nigerian general.

Third party service providers to corporate clients are often viewed as softer targets than the corporate targets themselves the major attack on US retailer Target in 2013 was achieved through a spear phishing e-mail to the retailer’s air conditioning contractor which in turn had access to part of Target’s systems - and law firms are another example of this indirect attack vector.

For example, if a hacker knows that a boutique law firm is regularly subcontracted by a magic circle firm to conduct the IP due diligence on major M&A deals, then gaining access to that law firm’s systems (and in turn to a data room treasure trove of information on a

PLC) may prove easier, and more fruitful, than attacking the PLC directly.

The ongoing consumerisation of business technology may exacerbate the security threat. As law firms embrace concepts such as “bring your own device” (BYOD), or at least allow lawyers to download personal apps onto work smartphones, the risk of malware residing on a device that accesses client data increases.

Clients will increasingly demand more collaborative approaches from their lawyers, including the ability to remotely access, and contribute to, draft documents and view WIP and billing data, providing legitimate routes through the law firm’s perimeter fence for third parties whose access credentials could be compromised.

The consequences for law firms of failing adequately to address the threat are significant and becoming more so. Firms face reputational damage, potential claims from corporate clients whose data is stolen and regulatory action by the SRA. Also, under the Data Protection Act, failure to apply appropriate security

Photo: Jon Bartley measures to protect personal data can result in a fine of up to £500,000 and damages claims from affected individuals.

However, the Data Protection Act is soon to be replaced by a new EU Regulation.

This will impose an obligation to notify the Information Commissioner and affected individuals of data breaches and increase the potential fines to between 2% and 5% of turnover (the cap has yet to be finalised at the time of writing). It will also extend liability to entities that merely process personal data on behalf of clients.

All law firms should ensure an ongoing commitment to cyber security. This might include assessment of systems against the Government’s Cyber Essentials scheme, the Standard for Information Assurance for SMEs (IASME) and/or ISO 27001.

Jon Bartley, commercial and technology partner, Penningtons Manches LLP. http://www.penningtons.co.uk/people/ a-e/jon-bartley/

THE MAJORITY OF DATA BREACHES ARE CAUSED

BY HUMAN FACTORS Gartner report that over 50% of data breaches are caused by users and predict that within 5 years over 90% of such leaks will be user created so firms need to be acutely aware that the greatest weakness in their systems is the human factor.

Our staff are busy billable people who have a limited mental budget available for managing security requirements or remembering multiple complex

passwords. IT need to work with other people to develop programmes of awareness and introduce new practices into the firm.

If the majority of data breaches are caused by human factors, how many firms engage the HR Department in their Security Incident Reviews? Anecdotal evidence suggests very few firms do this and yet re-education and behavioural change should be at the forefront of enhancing data security. We cannot simply add technology and process to

enhance security. We must create and establish cultural change. HR or Training Departments are usually the custodians of behavioural change in many firms and engaging them early in the development of data security solutions is imperative.

Do not regard data security as an IT issue. Make it a firm wide factor.

Simon Ratcliffe - Consultant Advanced Computer Software Group For more information please contact: 0844 815 5575

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Clinical Negligence

Brain Injury Clinical Negligence Headway is a charity that supports people affected by a brain injury. In the Winter 2015 edition of Headway’s magazine the cover story relates to international para-climber Dave Bowes who competes across the world. Mr Bowes often hears people say: “but you don’t look disabled.”

Brain injury is not always evident unlike some other injuries - the most obvious example being amputation.

Indeed, an injury to the brain can appear to be “hidden”. Mr Bowes himself was apparently diagnosed initially with mild concussion following a motorbike accident. It seems that his serious brain injury was missed at the outset.

I have acted for clients whose brain injuries caused by clinical negligence have been very obvious and for some others where the injuries were “hidden” like in Mr Bowes case.

A major area of brain injury caused by clinical negligence relates to damage to children at or around the time of their birth. These cases often result in a diagnosis of cerebral palsy and such cases are still eligible for legal aid.

In April 2013 the government pursuant to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed adult clinical negligence cases from legal aid save if they justified exceptional funding (which by definition would mean that such cases would be rarely funded by the LAA, i.e. the Legal Aid Agency).

However, under LASPO it is very difficult to get legal aid funding for brain injured children. I act as an Independent Adjudicator for the LAA and I have seen first hand how hard it is to fulfil the LASPO criteria. I have heard lawyers complain that to get legal aid now you almost need a written admission of liability from your opponent!

How different it was when I qualified back in 1991. When I first qualified legal aid was available to adults and children alike in clinical negligence matters. Although brain injured children may still be able to,

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in theory, obtain legal aid now, practitioners face other problems with legal aid not least with regard to finding experts who will accept low legal aid hourly rates. Many practitioners are now seriously asking themselves whether legal aid remains a valid option for potential claimants.

Photo: Marek Bednarczyk However, the burden of paying for all the experts of capacity and this point was only needed in a cerebral palsy (CP) case can accepted shortly before her trial this year be huge. In one case I instructed about (a settlement on liability in this case has 13 experts which is by no means unusual. now received High Court approval). In this case the claimant can talk clearly and she Sadly, CP cases usually fall into the can use a computer to an extent. category of “obvious” brain injury cases.

However, the difference in ability prior to Some of my clients have been blind and the negligently caused injury compared to unable to walk or talk. However, others the present situation is still significant. have had more subtle deficits. It is now Using the claimant’s own words, she is a more common to see children who suffer “one trick pony”, meaning she can cope from hypoxia at birth being treated using a with single tasks to a degree, but multiprocess called “total body cooling”. This tasking is now beyond her. Although in can improve outcomes in some cases. In this case the changes caused by brain one of my cases my child client suffered injury may appear in some respects quite from both birth hypoxia (a failure in the subtle they still remain very significant. oxygen supply) and a traumatic injury to

his skull which was fractured by a student midwife who had tried to disimpact his head in the birth canal. Initial predictions were very gloomy. Total body cooling in that case I believe saved my client from the worst effects of his birth injuries although subtle changes may still be an issue as indeed these changes can still have major consequences in the longer term.

A high functioning professional lady who suffered from a subarachnoid haemorrhage, which was diagnosed and treated too late, lacked in our view, based on expert evidence, the capacity to give instructions in litigation. Despite serving two reports from a leading neuropsychologist, the two opponents in that case refused to admit my client’s lack

One of the benefits of acting as a solicitor in such cases is the advantage one gets in talking to a client, where this is possible, over a prolonged period. In one case which could be characterised as a “hidden” brain injury case, my consultant psychiatrist confirmed that my client lacked capacity to give instructions in litigation. My client was seen by another expert who was asked to look at other features of his condition but inevitably that expert had some views as to whether my client lacked capacity or not. To put it simply, this other expert did not accept what the psychiatrist had concluded. My client could handle a conversation and he was even able to study and gain a qualification. This obviously had an

Clinical Negligence impact on the second expert’s view on the matter.

However, I had no doubt that my consultant psychiatrist was right in his conclusions because I had spoken to my client over a prolonged period spending hours with him in total. The features of his brain injury (caused by undiagnosed raised intracranial pressure) were as obvious to me as they were not obvious to my other expert who had only seen my client for a relatively brief consultation.

Unless the symptoms of brain injury are modest these cases are often amongst the highest value claims one can pursue.

Some claimants require 24 hour a day care packages and that head of claim can be the single highest head of claim in the whole action. Financial losses (i.e. “special damages”) often run into the millions and will involve the court making periodical payment orders to cover the claimant’s care and other needs for life.

General damages for pain and suffering and loss of amenity in a case of brain injury, even in the most severe cases, may represent a fraction of the overall total claim. The current edition of the Judicial College guidelines for general damages

suggests that the maximum award for general damages in a severe brain injury case (without a10% uplift for post 1 April 2013 cases) should be around £297,000.

Earlier this year following a contested trial, seven year old Eva Totham was awarded, in lump sum terms, £10.1M. The claimant’s solicitor was quoted in the press as saying that the case was not about money “it was about securing justice”.

I support and sympathise with the above sentiment, but at the same time I do not underestimate the value of a financial settlement. On occasion after settling a large claim where homes have been purchased and/or adapted my client’s parents have invited me for a visit to see what has been done with the settlement monies. It is a privilege to go back and see how a good settlement can make such a positive impact and that is a great motivator.

There do appear, however, dark forces at work on the horizon. Recently, of course, the Department of Health has put forward a proposal to impose fixed costs on clinical negligence cases of a value up to £250,000. Surely, severe brain injury

cases would not be affected by these proposals?

However, consider the problems with legal aid mentioned above, and also consider another potential area of attack. The Medical Defence Union (MDU) has now launched a campaign to “reform personal injury law”. The MDU want to cap damages in such cases. They complain that back in 1988 the MDU paid the first £1M compensation award, but awards have greatly increased since then and the highest payment made by the MDU to date is apparently £9.2M. It seems that the MDU would like to turn the clock back to 1988.

The Law Society, not that long ago, ran a campaign called “what price justice?”

History may be repeating itself very soon and it looks that even the most vulnerable and deserving claimants with severe brain injury will be falling under the bean counter’s scalpel unless we are vigilant and unless we continue to work hard to gain justice for our clients.

Marek Bednarczyk from Hart Brown cited in leading journal on medical negligence Bloomsbury Professional have published the 5th edition of Clinical Negligence the only text of its kind to cover both medical and legal aspects of medical negligence. Marek Bednarczyk, a partner at Guildford based law firm Hart Brown, is one of the contributors. Marek has written the chapter on the Conduct of Proceedings jointly with Master David Cook a Clinical Negligence Master at the Royal Courts of Justice.

Regarded as the “go to” publication on clinical negligence, it is written by a team of 54 experts, and provides the most comprehensive and authoritative guidance on all aspects of clinical negligence claims from bringing an action for damages to presenting expert evidence in court.

It also includes detailed

consideration of funding and cost implications. Marek’s contributions to this new edition is a recognition of his expertise in the area of personal injury and clinical negligence within Hart Brown. Marek is a member of the AvMA Panel (Action Against Medical Accidents), a charitable organisation which helps people that have suffered an injury from a medical accident, by providing free and confidential advice and support.

Marek has also been a long standing member of the Law Society/SRA Clinical Negligence Panel and has worked for many years dealing with legal aid appeals for the Legal Aid Agency (LAA) an organisation charged with the administration of legal aid. He has been a member of the Association of Personal Injury Lawyers (APIL) for nearly 20 years and is an accredited APIL Senior Litigator.

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Clinical Negligence

CLINICAL NEGLIGENCE LITIGATION COSTS REFORMS - WHAT DOES THIS MEAN FOR CLAIMANTS?

by Philippa Luscombe, Penningtons Manches LLP The last two and half years have seen widespread reforms in the approach taken to costs in clinical negligence litigation. Prior to April 2013, the majority of claims were funded either by the Legal Aid Agency (LAA) in substantial cases where the claimant had limited means or Conditional Fee Agreements (CFAs) - also known as No Win No Fee. In both scenarios the approach was relatively simple - did the case have sufficient merit to warrant proceeding? If so, the claimant would be eligible for funding, in most cases with no potential costs liability for themselves.

If they won their case, they retained their damages in full.

From April 2013, the LAA restricted their funding to claims for children seriously injured at birth or very soon after. The rules on CFAs changed such that successful claimants became responsible for paying a success fee and an insurance premium out of their damages. In addition, the rules on recovery of costs inter partes were substantially changed meaning that recovery of costs would become much more restricted and controlled, particularly in the case of smaller value cases.

Negative impact on access to justice To date, this has already had an impact on claimants’ access to justice and the clinical negligence market. Some firms decided that the combination of no longer be able to recover substantial success fees from defendants in successful cases; the restriction on their recovery of base costs; and the high costs of running the case and need for disbursement funding in these cases; they could not continue to do clinical negligence work profitably and withdrew from the market.

Other firms who had historically done only personal injury (PI) work felt that the changes to PI costs meant that clinical negligence cases would be more profitable. So they entered the market offering to do the work without charge to claimants but without having any real expertise in this type of work.

Claimants with complicated cases of limited value in damages started to find that either firms would not take their case on at all. Cases were being disputed and claimants were being advised to drop them as it was not cost-effective to continue or that they were faced with relatively limited damages that were

severely depleted by deductions for costs.

Those hit by the changes were some of those for whom claims were most important - the elderly and those who had lost parents or children due to suspected negligence.

Unexpected proposals to introduce fixed costs Without warning, there were further announcements this summer about proposals to introduce fixed costs for clinical negligence cases valued up to £250,000 - not just those valued up to £25,000 (as is the case in PI work). There are real concerns about these proposals and their impact on access to justice particularly as it is too early to assess the impact of the first sets of reforms.

Ultimately, fixed costs may well encourage the bad behaviour of defendants that we currently see. For example, denying liability until late in the day and causing repeated delays in the hope that the escalating costs will force solicitors to discontinue the case.

There are also concerns about a knock on effect on patient safety. If clinical negligence litigation is one of the ‘checks and balances’ to help maintain clinical standards, will making it not financially viable to bring smaller claims mean more disregard of standards of care because the threat of litigation reduces? Will it mean that patients who have been negligently injured or lost a loved one will not be able to pursue a claim at all because of damages being limited? Will those who have a valid claim end up being under-compensated because of deductions from their damages? Within the legal market, will it result in firms competing on cost and cutting corners to do these cases as cheaply as possible?

In turn, this could mean that the clients may not have a good job done or may be encouraged to settle early and at undervalue. Or that more firms leave the market and the clinical negligence field ends up being comprised of a small number of large teams who have the economies of scale to do the work well and profitably?

‘Double whammy’ of reforms will not help the individual Any way you look at it, the ‘double whammy’ of the reforms means that access to good quality legal representation and the chance to obtain answers and proper compensation is being restricted. The Government set the rules and is also the biggest compensator for clinical negligence claims. These reforms only work in their favour and not for the individual who, through someone’s substandard care, has been left injured or bereaved.

As a clinical negligence solicitor, I consider myself lucky that I have been able to make a real difference to people in achieving not just compensation but answers and apologies for them at the same time as running a successful business. It will be a sad state of affairs if we get to the stage where we can only help people with the most serious injuries because we cannot break even on lower value cases and people with legitimate cases without potential for winning high value damages are left without answers and redress. http://www.penningtons.co.uk/people/ k-o/philippa-luscombe/

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Free Wills Month

Free Wills Month is an opportunity for both solicitors and the public Ten national charities are working together to promote Free Wills Month during March. The promotion is an opportunity for people to have their Will written free of charge by a local solicitor and at the same time to leave a lasting legacy.

For solicitors the promotion is a fantastic opportunity to acquire new clients at no cost. The promotion involves a lot of local advertising, which includes participating solicitors’ details, paid for by the organisers. Solicitors average 25 new clients, though some set a lower limit while others regard it as an excellent way to add to their client list and take as many appointments as they can manage.

Many charities depend on gifts left in Wills for up to half of their funding. The Free Wills Month promotion aims to encourage those aged 55+ to have their Will written or updated (though in the case of couples making mirror Wills it is sufficient if one has reached 55).

Free Wills Month is a great opportunity for people to consider leaving a gift to one or more of the charities. There is no

obligation to include a gift, though the great majority of people using the promotion choose to do so. The Free Wills Month charities work exclusively with solicitors who are in good standing with the Law Society and who are regulated by the SRA. The Free Wills Month charities in the March 2016 campaign are Age UK, Arthritis Research UK, The Blue Cross, British Heart Foundation, Guide Dogs, MIND, the RNLI, Royal British Legion, The Salvation Army and Stroke Association.

The charities pay a set fee for “simple Wills” with the drafting solicitor determining what qualifies as a simple Will. If a Will is unduly complex the solicitor can ask the client to cover the cost between the simple element of the Will and the extra service required.

Recruitment of solicitors for Free Wills Month is scheduled to be completed by the end of January with the promotion running from Tuesday 1st March to Thursday 31st March inclusive.

Appointments have to be made during March, though the actual appointments can take place any time afterwards to suit clients and solicitors.

Solicitors interested in taking part in Free Wills Month should visit the campaign website at www.freewillsmonth.org.uk or call 0345 686 4309.

The importance of charitable legacies and how you can help Gifts in Wills form the foundation of the UK’s best-known and best-loved charities. Indeed, without income from legacies, many charities would cease to exist. In 2014 legacies contributed over £2.4 billion per annum to the sector§. Yet this sum is generated by only 7% of the UK public.

While this demonstrates the fragility of legacy income, it also reveals its potential.

If the rate of legacy giving rose to just 11% of the population, this would create an additional £1 billion for charities.

Remember A Charity was created to realise this potential. The campaign works to do what no single charity is able to achieve on its own - to change the perceptions of the nation towards charitable legacies, so that over time, legacy giving becomes the norm for the many, rather than just the few. Remember A Charity was formed in 2000, and now has over 150 member charities, working together to achieve this aim.

With 74% of the UK population supporting charities in their lifetime, most of your

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clients will have charitable causes that are close to their heart. However, the reality is that most people do not realize that they can use their Will to take care of not just their family, but of everything else that is important to them.

The good news is that, research commissioned by Remember A Charity in 2008 revealed that 35% of people would consider including a gift to charity after providing for their family and friends in their Will.* Solicitors play a key role in helping clients understand all the options open to them.

Of course, family and friends must come first. But by simply mentioning the option of supporting their favourite causes, more clients will consider supporting good

causes in their Wills.

It is only with your help that we can give donors an opportunity to choose to do something amazing, and a small increase in the number of charitable gifts in Wills will make a huge difference to charities - and donors alike. To find out more about how you can get involved and support the campaign, whilst at the same time promoting your firm, please visit rememberacharity.org.uk/advisers §

Legacy Foresight 2015 * TNS Social 2008

Free Wills Month

Did you know that just mentioning a charitable gift to your clients could double the amount raised for good causes?

We’re Mind, the mental health charity. We believe no one should have to face a mental health problem alone.

We’re here to make sure anyone with a mental health problem has somewhere to turn for advice and support.

Mind is the leading mental health charity in England and Wales and gifts in wills are vital to fund our work. Last year 65,000 enquiries were answered by our helplines.

Our local services helped over 375,000 people.

However, we can only continue our work because of public support, events, donated goods sold in our shops, donations and gifts in wills.

Our 2015 survey showed that 40% of our supporters would consider leaving a gift, but the number of people who actually make a gift is far lower. This isn’t just a challenge for Mind, because only 7% of wills end up including a gift to any charity.

A recent study* found that people prompted to think about charitable giving were twice as likely to include a gift.

Clients asked if they were passionate about any good causes were three times more likely to make a gift in their will.

And the value of their gifts was double the normal amount. This is why I’m asking for your help.

You could help double the amount raised for charitable causes. mind.org.uk/wills

Douglas Flood, Mind Wills Team PS - Mind is part of the consortium of charities in Free Wills Month in London, this March. Clients using the offer have no obligation to make a gift to any charity in the consortium, or outside it. Although we of course hope that many will see this as a chance to help us. *Behavioural Insights Team, Cabinet Office 2013.

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Conveyancing Focus

Hind legs and hindsight A few years ago I bought two miniature long-haired dachshunds that cost me the best part of £2000. They are gorgeous dogs and although they were expensive, they were bought to give us many years of pleasure.

S

adly, Tilly, burst a couple of discs in her back earlier this year, disabling her from the waist down. We took her to the "super vet" and she was operated on; she has had physiotherapy, acupuncture and ultrasound treatment but, at the moment, her ability to walk unaided is not looking promising.

It was only when we paid the £8000+ vets’ bills that we realised the inadequacy of the "cheap" insurance policy that we had bought.

Of course, 20:20 hindsight is an exact science but this has been an expensive lesson.

Over the last couple of years, I have often wondered about the value of paying as little as possible for a narrow range of search information on a prospective property purchase. That property, particularly in Surrey, will cost a minimum of six figures, and possibly even seven. With taxes and fees costing tens of thousands of pounds, surely the biggest investment that we are ever likely to make should be researched to the most thorough extent possible?

We live in an information age and data is readily available regarding schools, crime, public transport routes and myriad other aspects that may have a bearing on how someone will “enjoy” a property that they are looking to buy. As a solicitor, how are you advising your customer on the range of reports that they should invest in? The information gathered before a property is bought is as much of an investment as the property itself.

For example, I would always advise that the purchaser be made aware of development history and proposals around the location of their desired property. It will indicate whether someone buying a property with plans to extend it (or change its use) might be successful based on what the planning department have agreed before; it will also reveal submitted plans for development of other properties and land in the near proximity.

We recently discovered a major proposal for the development of green belt land not far from Redhill. Heads of Terms are in place between landowner and a major developer

and whilst development isn’t imminent it became very clear that this particular section of green belt would be the first to be sacrificed with an increasing demand for housing in the area. When that comes to pass, there are already outline plans for several hundred houses to be built to the rear of a property that, as it stands, has beautiful, unimpeded views over the Surrey Downs. Our “research”, as you can imagine, was most welcome!

solicitor clients and provide them with support and advice leading to the delivery of better, more thorough and relevant search information. In turn, their customers make the biggest investment of their lives confident they have carried out proper due diligence and that they will enjoy living in the home for years to come without fear. The search pack might have been a little more expensive but it will have been money very well spent.

Only a tiny proportion of the population are knowledgeable when it comes to the conveyancing process and when a solicitor advises the need for "local searches", most simply nod sagely. I personally think that there is enormous scope to better inform the prospective purchaser and, at the same time, demonstrate the professionalism of how the law firm operates.

If only I had done a similar calculation when buying Tilly's insurance policy I wouldn't now be over £4000 out of pocket!

For more information please contact our office on 0843 659 4000 or email me at kevin.johnson@indexpi.co.uk

I’ve never wanted to be regarded as just a “supplier” but prefer a collaborative relationship with our solicitor clients and, even more importantly, with their own teams of support staff. We all have specific skills and experience in what we do and I would no more try to change the oil in my car than I would attempt the legal transfer of a property title. But I do know searches and welcome the questions that test this knowledge.

At Index Property Information, we regularly recruit people with a legal background and so dovetail their experience with our knowledge of the search spectrum. We work as one with our

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Conveyancing Focus

Changing behaviour in the information age

by Scott Bozinis, CEO, InfoTrack

Recently, I was lucky enough to attend a Legal IT conference having been invited to sit on a panel that included Pinsent Masons LLP and Addleshaw Goddard LLP. Much of the conversation was focused on how technology can be used to improve client relationships.

Amongst the many interesting insights, there were a few key points that clearly resonated with the audience, one of which was the issue of having to remember various logins for multiple websites that lawyers use every day. This raised a knowing chuckle amongst the audience who clearly identified with the problem of not having one central hub to access all their online processes. So why did the audience find this amusing?

We are also more astutely aware of those technologies which we genuinely enjoy using in our personal lives, thus, it is only natural that we would come to expect a similar standard of this convenience in our professional lives too.

Particularly with the advent of the internet, it is clear that our attitudes and expectations are continuously evolving with regards to technological change and that there will continue to be an increasing overlap between our professional and personal worlds.

Well, it’s due to our attitudes changing over the years, bringing new expectations. I believe that now, more than ever, people are conscious of which technologies are creating efficiencies and making their day to day lives easier and which are not. Nowadays technology has become completely embedded into society in a variety of ways, and we now expect to be able to use technology in every aspect of our lives - personally, socially and professionally.

In my opinion, one of the biggest changes to behaviour over the last 20 years has been the result of technology changes. We have come to expect ‘instant gratification’, or our need for everything to be easier, faster, flexible, and efficient, and to be at our fingertips. Some may argue that technology has turned humans into a lazy, lethargic species, however, I would counter that it is simply a shift in attitude, in that we now know there are smarter ways to achieve our goals, whether that’s at home or at work.

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

As well as being an official provider of the CON29DW Drainage & Water Enquiry, we also have a comprehensive range of property searches and discounted search packs offering convenience and value.

Whether contamination and flood risk information is required, or searches on planning applications and areas licensed for fracking, we are here to meet your needs.

How can we benefit your business?

Ordering searches is quick and easy with our online ordering platform. In addition, we’ve got some easy-to-use online tools to help - from boundary mapping through to online search

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

• We’re a licensed partner of the National Land Information Service (NLIS), offering you electronic connectivity to every local authority in England and Wales therefore enabling a more cost effective and accurate transaction.

This, alongside our established links with market leading suppliers, means you get direct access to all the due diligence searches you’ll ever need - and you get them from just one provider. So it doesn’t matter whether you need an environmental search, a local authority search, or chancel search - you can access them all from us.

Photo: Scott Bozinis

It used to be that we had to learn to adapt to technology, but today, technology is built to adapt to us. You will find it permeates our lives everywhere you look - just think smart thermostats that conserve energy, online shopping sites that tell you what other products you may ‘also like’, navigating a foreign city using Google maps, or even setting up automatic payments through online banking. So why wouldn’t we naturally expect this in our working lives too? We now co-exist with technology and going forward, we must adapt together to ensure a smooth evolvement and optimal efficiencies. Once this coexistence is noted and implemented in professional environments, the results will show why employing intuitive technology in the workplace is so essential.

This is why I believe that conveyancers must also evolve with technology, and that those in management must focus on satisfying the needs of those at the coalface to make their work lives easier and get staff working smarter, not harder.

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

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

If you are interested in our products and services or would like to take advantage of our free training opportunities we would love to hear from you.

Simply get in touch by calling: 0845 070 9148 (Mon - Fri 9am to 5pm) or email us on: onlinecustomers@thameswater.co.uk

Conveyancing Focus

Uncertainty, The Only Sure Thing 2016 has all the signs of another uncertain year in the residential property market.

With the pace of change even those in the profession and associated disciplines could be forgiven for missing the nuances that could significantly impact conveyancing in 2016 and beyond.

The housing stock shortage isn’t going to be solved overnight. The potential injection of properties resulting from the Autumn Statement Stamp Duty reforms will possibly generate a flurry of activity at the lower and mid range ends of the market. Of course, there’s also the spectre of Income Tax reforms announced in the July budget which could see many small Buy to Let investors exit the market. There’s a very real chance that they will be paying more in tax and mortgage interest than their rent will cover.

So what if anything could these changes mean for our national obsession with house prices?

Regardless of the short term impact - a lack of new housing, depressed interest rates and increased lending are all ingredients that will

lead to further price growth. Some observers predict up to 10% increase in the average house price year on year.

The new Help-to-Buy ISA, launched on 1st December means savers can earn a 25% bonus on savings towards a new home. Limited to savings of £200 a month, this could mean the initiative will have a smaller impact on firsttime buyers. The return of 95% LTV mortgages, however, and the extension of the ‘Help to Buy’ mortgage guarantee scheme is bound to have a positive impact.

In 2015 the average price of a starter home increased to an all time peak of £215,000.

Regardless of other programs, if this trend continues, the “Bank of Mum and Dad” is likely to continue to become the de facto norm for deposits. Alternative funding sources reinforce the need for conveyancers to employ robust Client Due Diligence (CDD). VERIPHY, a detailed, risk based and auditable electronic AML product, and others like it, will provide economical and easily accessible solutions. A conveyancer’s experience and instinct, however, are still irreplaceable as part of a best practice approach.

From a conveyancer’s perspective, the potential for growth in the overall volume of housing transactions informs staffing decisions and business predictions. Observers within the conveyancing search industry suggest that housing transactions could increase by a relatively conservative 4.6%. This may not seem like much, but since many conveyancers are still struggling with how to grow a new business pipeline, even a modest increase is likely to create an impact. Many firms find themselves trying to pursue more work yet worrying how to cope if they are successful.

Providing a comprehensive and ‘best practice’ compliance service is frequently found to be at odds with the profession’s approach to pricing.

By quoting comprehensive search costs firms continue to fear that they will appear expensive.

Yet behaving this way they make it more difficult to justify best practice compliance.

For example, since Orientfield Holdings Ltd v Bird & Bird LLP [2015], a conveyancer who fails to undertake planning and infrastructure searches as part of a routine transaction could now be considered professionally negligent.

It’s difficult to speculate why a respected firm didn’t appreciate the risks associated with failing to inform a client of all potential issues.

They, however, are not likely to be the last.

Thankfully, more and more firms are recognising the positive impact of transparent upfront quotations which include all required and recommended searches.

Quality Solicitors Parkinson Wright’s underlying focus on service and the client’s best interests has reinforced the policy that clients always receive a “Best Practice Search Pack” as standard.

Faye Green: “Since the recent judgement on the Bird & Bird Professional Negligence case our search packs include Landmark’s Plansearch Plus as well as an Energy & Infrastructure search. We believe that the client’s interests are best served by providing them with all of the information available on every transaction”.

In Orientfield Holdings Ltd v Bird & Bird LLP [2015] the High Court said that a solicitor had acted negligently for failing to warn their client about plans to build two schools in the same street as the client’s new property. Who wouldn’t want to know that planning consent had been given for a school, a nightclub, high-density housing, a fireworks factory, a wind-farm, a highspeed rail link or a fracking license near their new home? Furthermore, recent changes to planning policy mean applications which may have failed in previous years may now be granted - creating more potential for aggravation.

It is a legitimate expectation of a client that their conveyancer will look after their wider interests in the transaction and alert them to issues that might affect their use and enjoyment of the property in the years ahead.

Firms have voluntarily paid compensation to clients in cases where they failed to raise concerns which a planning report would have pointed out.

Courts, it seems, have now taken this one step further.

Faye Green is a Partner and Head of Residential Property at QualitySolicitors Parkinson Wright.

Andrew Stradling is Senior Legal Services Manager at Property Information Exchange and Brighter Law Solutions.

Contact: andy.stradling@brighterlaw.co.uk 07775 444 402 Andy Watson is Channel Development Director at Property Information Exchange and Brighter Law Solutions.

Contact: andy.watson@poweredbypie.co.uk 01189 769 479

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Legacies

Canine Care Card Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved fourlegged friend without an owner. Thankfully, Dogs Trust, the UK’s largest dog welfare charity, offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, it also helps to ease the minds of friends and family during what is already a distressing time.

Over the past 12 months, Dogs Trust has taken in a whole host of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes.

Two of these such dogs were devoted duo, nine-year-olds Rosie and Beth who arrived at Dogs Trust Manchester when their owner sadly passed away. When they arrived at Dogs Trust Manchester, Irish Setter, Rosie, and Shih-Tzu Cross, Beth were missing their home comforts and hoping to find love again with a new owner. Thankfully, Dogs Trust Manchester was able to provide the adorable duo with a home away from home while they awaited their furrytale ending.

Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving home. After being cared for by Dogs Trust Manchester, Rosie and Beth were soon rehomed and have since begun settling in to life with their new family.

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Adrian Burder, Dogs Trust CEO says, “Thanks to Dogs Trust’s Canine Card Card scheme, dogs in need of a new home are given a lifeline meaning that Rosie, Beth and many dogs like them are able to get a second chance at happiness and bring joy to a new family. If you decide to become a Canine Care Card holder, we will issue you with a wallet-sized card. It acts in a similar way to an organ donor card and notifies people of your wishes for your dogs, should anything happen to you. Dogs Trust also strongly recommends that you mention the care of your dog in your Will. That way, there can be no confusion about your wishes.”

News

Planning for the future can help make a real difference

WINE OF THE SEASON with Conal Gregory, Master of Wine

It’s hard to know what the future might bring, but one thing that is for certain is the number of people living with breast cancer is expected to double by 2030. This is where the challenge lies for The Haven; while the good news is that survival rates are improving, it also means that more people will be living with the disease and its affects for longer.

Therefore in the years to come, many more people will need us. We’re the only breast cancer charity providing free, one-to one, tailored care and support to anyone affected by breast cancer. The programme offers a wide range of complimentary therapies, counselling and nutrition advice. For thousands of people we are a lifeline, but as the rate of breast cancer is set to double, we need to double our efforts.

This is why gifts in Wills play a vital part in helping us plan for the future; knowing that we can rely on future funds allows us to confidently embark on our plans to reach more people and invest in expanding our services in local communities. We want to open more centres across the country so we can reach the next generation facing this terrible disease.

It costs £1000 to provide The Haven programme for each visitor. We look after thousands of people each year and without the voluntary donations we receive, we could simply not deliver our promise to be there for those who need us the most.

Cold days call for well-structured wines and Maranaga Dam’s trio of grapes from Australia’s Barossa valley is spot on. The predominant Viognier vine gives a peachy elegance, Roussanne the depth and finesse and Marsanne the richness.

Made at Torbreck winery, named after a Scottish forest, this dry white is delicious with turbot and Asian cuisine and the 2014 can be kept for two to three years. £15 (Marks & Spencer).

Legacies will help us to create a future where everyone with breast cancer has a Haven. If you would like to find out more about leaving a gift in your Will, visit thehaven.org.uk/giftinwill We are very keen to work with local solicitors to offer a promotional Will writing week for our supporters. If you would like to raise the profile of your company in South West London, Surrey and Hampshire, build up relationships with new clients and raise money to support The Haven, please get in touch.

laura.hignett@thehaven.org.uk or go online: thehaven.org.uk

The vineyards of Marcillac in Aveyron, south-west France had almost disappeared through vine pest, war and rural depopulation. The Teulier family of Domaine du Cros has continued in the iron-rich, hilly country to make a deep rich robed red from the Servadou vine, known locally as Mansois. The wild fruit berry character comes with a hint of spice.

The 2014 is perfect with grilled meats. £7.95 (IEC Wine Society).

Sponsored by NFU Mutual Bespoke, high-value home insurance tailored to protect everything you value, including art, antiques, fine wine and more.

Visit www.nfumutual.co.uk/bespoke for further information.

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Probate

Heir locators’ fees - Who should pay?

Professor Lesley King, Private Client Head of Practice at The College of Law, Bloomsbury, looks at the options available to legal professionals and their clients.

The process of administering most estates is relatively straightforward. Personal representatives (PRs), with or without professional help, collect in the assets and, having settled liabilities, pay what remains to the beneficiaries. Administration expenses such as the cost of the funeral and the professional fees of solicitors, estate agents, valuers and accountants are met by the estate.

However, sometimes there are problems identifying and/or locating those entitled to share in the estate. In such cases the PRs will rely on the services of professional genealogists, sometimes known as ‘heir hunters’. These firms are extremely good at what they do and will normally have little difficulty identifying and locating the beneficiaries. However, there are some problems for PRs in relation to paying for these services.

There are broadly two options available. The first is an agreement that the heir hunter should receive a share of the beneficiary’s entitlement, often called a ‘contingency fee’. The second is that the professional charges for their services, which may be on a fixed-fee arrangement or based on the time taken to complete the work (typically known as time and expenses).

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No PR who instructs a firm on the basis of either time and expenses or a fixed fee service could be criticised for having done so. On the other hand, there are risks associated with the contingency fee model.

Under a contingency fee model, once the heir hunters have located a beneficiary, they will ask him or her to sign an agreement instructing the PRs to pay a percentage of the beneficiary’s share in the estate to the heir hunter. It is not unusual for fees of 30% and more to be charged. Alternatively, the heir hunters might ask the PRs to sign an agreement stating that they will pay a proportion of the share of located beneficiaries to the heir hunter. Either way, the beneficiary is deprived of a proportion of their rightful entitlement.

There is, of course, nothing wrong with a beneficiary deciding to share their entitlement with a third party (deeds of variation are commonly entered into to do exactly that) but in this instance the PR is imposing an obligation on the beneficiary to do so. It is difficult to see how this can be justified.

In an article on this subject in Private Client Business 293 (2005), Richard Wilson and Constance Mahoney of 9 Stone Buildings said: “In the authors’ view, whilst there is no authority which provides assistance on this point, it is possible that a beneficiary might successfully argue that the personal representative has acted in breach of duty by

appointing an heir locator on such a basis, and should be personally accountable for the share that the beneficiary has paid to the heir locator.”

PRs cannot require a beneficiary to agree to assign a share of their entitlement to the PR. Therefore, it must follow that an agent acting on their behalf must be similarly prohibited. There is also an issue as to whether PRs can properly disclose information about the estate to someone who is going to use that information to make a profit for themselves.

Clearly where beneficiaries have to be located, there are unavoidable fees involved and PRs are entirely justified in incurring such costs. However, they are in a fiduciary position and must act in the best interests of the estate. If services have to be obtained, the PRs should use the most cost effective method of obtaining them.

This is a difficult area of the law to interpret and practitioners should think carefully about how the work involved in tracing beneficiaries should be funded and where the costs should fall.

This is a redacted version of an article that was first published on Title Research’s website in February 2016. To read the full article, visit: www.titleresearch.com

Probate

Probate: how it works Sonia Dhesi from law firm Hart Brown gives a step by step guide on how Probate works.

It is the sad truth that death will affect us all at some stage in our lives. Having to cope with the loss of a loved one can be devastating without the added burden of having to also consider legal matters.

O

ne of the first steps after someone has passed away is to register their death at a local Registry Office. It is also necessary to begin gathering information on the deceased person’s assets and liabilities and the government’s Tell Us Once service, which is available through the Registry Office, is a great way to start this by notifying all relevant government departments in one go.

(to be phased in over a five year period from 6 April 2017). The additional nil rate band will apply where the deceased leaves property to direct descendants and could provide an extra allowance of up to £350,000 in specific circumstances, providing a total allowance of up to £1 million. However, advice should be sought on the exact position and the best way to maximise the allowances available.

It is then usually necessary to obtain probate, which is an order issued by the Probate Registry, part of the English court system, confirming the person who has the legal authority to deal with the estate.

To assess the inheritance tax position, the deceased’s assets and liabilities should be valued as though they were being sold on the open market at the date of death.

When considering property valuations, it is advisable for the executor to obtain at least three valuations from local estate agents. In some cases, it may be beneficial to obtain a formal valuation from a surveyor especially if inheritance tax is payable and the exact value of the property could be a matter of negotiation with HM Revenue & Customs.

Before an application can be made for a grant of probate (or letters of administration if there is no will), the person making the application (known usually as the executor) must assess the size and complexity of the estate and ascertain whether inheritance tax will be payable.

Gifts to surviving spouses or civil partners and gifts to charities are generally free of inheritance tax. Otherwise, inheritance tax will be payable where the value of the estate exceeds an individual’s inheritance tax nil rate band. The inheritance tax nil rate band is currently £325,000 and is due to remain the same until 2021. Inheritance tax is paid at a flat rate of 40% on the value of the estate exceeding the available inheritance tax allowances.

Where the deceased had been previously widowed, it may be possible to claim up to a further full inheritance tax nil rate band, bringing the allowance up to £650,000 on the basis of current figures. However, it is important to note that this allowance must be claimed through the relevant forms and is not automatic.

Further changes to the inheritance tax rules have been recently announced are due to brought into force shortly with introduction of an additional nil rate band

Assets held jointly should also be considered as well as personal possessions. In some cases, it may be beneficial to obtain a professional valuation of the personal possessions, particularly if there is inheritance tax to pay.

The inheritance tax value of those possessions is their sale value which is often considerably less than their replacement value which many of us regularly consider when insuring our contents.

It is also essential to consider whether any gifts were made by the deceased in the last 7 years of their life. Gifts not only include assets given away but also assets that may have been given away but where the deceased still retained some benefit.

HM Revenue & Customs expect full enquiries to be carried out and it is recommended that bank statements are reviewed thoroughly over this 7 year period.

be paid before probate can be granted and this can often be paid directly from the deceased’s bank accounts via the direct payment system. It may also be possible to elect to pay inheritance tax by way of 10 yearly instalments in relation to the deceased’s property and certain other assets, which reduces the immediate tax that must be paid.

Once the grant of probate has been issued by the Probate Registry, the deceased’s assets can then be encashed or transferred.

Once any outstanding debts have been settled, the estate can then be distributed in accordance with the terms of the will or the law of intestacy (if there is no will).

There are occasions where a beneficiary may wish to vary the benefit they have received from the estate, either partially or in full, and re-direct their gift to a new beneficiary (e.g. a child). It is possible to achieve this by way of a deed of variation.

For the deed to be effective, it must be correctly executed within two years of the date of the deceased’s death and can lead to considerable inheritance tax savings.

Overall, it can be very time-consuming and stressful to deal with the administration of an estate. By instructing a solicitor, it is possible to alleviate some of the pressure, avoid potential traps and ensure that opportunities are taken to maximise the estate and minimise tax. Hart Brown offer a “free” half an hour consultation prior to deciding on whether to contract a solicitor.

by Sonia Dhesi

A common concern is how the inheritance tax will be paid. Some of the tax due must

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Probate

Protecting Property When somebody dies, the largest element that makes up their estate is usually their home. This is often their own property, filled with a lifetime of memories, keepsakes and belongings. After the owner’s death, this building and its contents take on a very different role and to an administrator. The property is viewed in more simple terms and is very often the estates most valuable asset.

As you all know, it is the role of the estate administrator to ‘manage’ and ‘realise’ these assets, but there is so much more work involved in these two words than meets the eye.

They bring a whole new set of challenges to manage. These include the largely unpredictable British weather and the evenings provide criminals with perfect opportunities for acts of burglary and vandalism. Insurance company Aviva shared

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their claims statistics for the ten years between 2002-2012, and reported a 150% increase in claims for malicious damage to homes during this period.

More vulnerable empty properties such as probate properties are at even greater risk of damage from vandalism and weather.

Empty properties such as these hit the headlines last year when an article in the Telegraph stated: ‘More than 700,000 residential properties in England are left unoccupied, according to the charity Empty Homes. These vacant properties are often managed by people taking responsibility for the estate or affairs of another person or while a property is awaiting sale. However, many wrongly assume that existing buildings and contents cover would provide adequate protection should something go wrong and as a result, hundreds of thousands of homes are currently uninsured’.

With the demands of your workload you would perhaps struggle to see how you might arrange them all yourself. This is another area, in addition to our more widely

known research, where our experienced staff at Fraser & Fraser would work with you, providing you with a trusted partner to offer support throughout the lifecycle of your case.

Things to consider: - Maintenance & Security - Empty Property Insurance - Property Valuations - Energy Performance Certificate - Probate sales - Property Clearance If you are administering an estate with which you require our assistance or are experiencing difficulties, contact one of our case managers now to discuss how we can help: legal@fraserandfraser.co.uk or 020 7832 1430

News

The Supreme Court on Break Clauses and Implied Terms

by Kester Lees, Barrister, Falcon Chambers

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

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

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

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

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

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

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

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

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

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

Conclusion: lessons to be learned…

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

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

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

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

TheClapham ClaphamOmnibus Omnibus 33 The

Book Reviews

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

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

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

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

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

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

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

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

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

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

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

The publication date is cited as at January 2015.

BILLS OF LADING Second Edition

by Richard Aikens, Richard Lord and Michael Bools

LLOYDS SHIPPING LAW LIBRARY Informa Law from Routledge ISBN:

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

www.informa.com

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

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

The Clapham Omnibus 34

potential contradictions.

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

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

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

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

The sections on such issues as seaworthiness and the question of frustration of contract of carriage have been expanded - and in response to the movement and direction of global trade reference is made to significant decisions

from Singapore, Hong Kong, Australia, New Zealand and Canada.

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

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

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

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

The publication date is cited as at 2016.