Clapham Omnibus Summer 2016 by Benham Publishing Limited

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MAYOR SADIQ KHAN REASSURES AMBASSADORS EU NATIONALS WILL ALWAYS BE WELCOME

CLAPHAM OMNIBUS the journal of the South London Law Society

Summer Issue 2016 - www.southlondonlawsociety.co.uk

› Conveyancing › Risk and Compliance › Cyber Security

Inside this issue:

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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

ADVERTISING AND FEATURES EDITOR Anna Woodhams

PRODUCTION MANAGER John Barry ACCOUNTS DIRECTOR Joanne Casey MEDIA No. 1464 PUBLISHED July 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.

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 Mayor of London, Sadiq Khan

INTRODUCTION

CONVEYANCING

NEWS

LEGACIES

SPOTLIGHT ON SADIQ KHAN

RISK & COMPLIANCE

JUNIOR LAWYERS DIVISION

MANAGEMENT

INTERVIEW

PROPERTY LAW

CYBER SECURITY

PROBATE

EDUCATION MATTERS

BOOK REVIEW

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Introduction

Officers President

Vice-President

Council Member

Gareth Ledsham

Robert Hush

David Taylor

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:

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

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

Introduction

President’s Review It’s hard to believe that we are over half way through the year and summer is upon on us (despite any weather indications to the contrary!).

Without wanting to wish the summer away, we do have a date for your diaries in the autumn and that is for the South London Law Society Annual Dinner, which will be taking place on Wednesday 16 November 2016. We will once again be dining at the Kia Oval Cricket Ground, an iconic South London venue if ever there was one. Our guest speaker will be President of the Law Society, Robert Bourns. More details will follow by email in due course. We do hope you will join us for what is always an enjoyable evening. Following our AGM in April, I was elected for a further one year term as the Society’s President. I am delighted to be able to continue serving the Society and its members. Of course since then we are all getting to grips with the result of the referendum of the UK’s membership of the EU. Whether you were a supporter to the Remain or the Leave campaign, one thing for certain is that south London lawyers, as well as lawyers everywhere, are going to have to adjust to a very different legal landscape. There is currently a lot of uncertainty regarding how and when (or if?) the result of the referendum is to be implemented and it is therefore too early to tell what the ramifications for the legal system and the profession will be. We will be watching developments closely and stand ready to assist members in adapting to the changes as they arise. Whether a member of the EU or not, South London Law Society intends to maintain links with the wider European legal community, and to this end we are considering twinning arrangements with other European Law Societies. I will report back on developments in this regard in the autumn. We will also be supporting our committee member Professor Sara Chandler QC (Hon) in her role as President of the Federation of European Bars.

COPY DEADLINES Autumn 2016 Spring 2017 Summer 2017

14th October 2016 17th February 2017 10th July 2017

Closer to home, I attended the Law Society Presidents and Secretaries Conference in May of this year which is an annual event at which presidents and secretaries from local law societies large and small meet to discuss experiences and exchange ideas. It was a thoroughly engaging event, due in no small part to the excellent organisers behind it, including SLLS’ link into the National Society, Mark Hudson, who is Head of Relationship Management for London, the South East & East. I have come away inspired with lots of ideas as to how to take the Society forward, including a project to develop closer ties with south London MPs, enabling the Society and its members to highlight issues of importance to us and our clients of which our MPs may be unaware, and thereby enhancing the service we provide to our local communities. I am also looking forward to attending the National Local Law Societies Conference in Birmingham this coming September, and to reporting back in the autumn. We are very keen to hear what members would like from us. A survey will be circulated shortly by email, and we should be grateful if as many people as possible would complete it as this will assist in developing the service we offer to members. Likewise, 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. Best wishes, GARETH LEDSHAM President South London Law Society

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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Are we European lawyers...still?! South London Law Society leads the way in maintaining relationships with our colleagues in Europe. The Committee have decided to twin with a French bar association.

s we get over the vote to leave in Thursday’s referendum, what now for lawyers who have worked in a European context for decades? As Vice President of the Federation of European Bar Associations (FBE), I feel the defeat from the perspective of someone who calls herself a European lawyer. Only a few weeks ago I stood proudly in an empty court room of the European Court of Human Rights and lunched in the Council of European building in Strasbourg. What will be the future role of an organisation such as the FBE whose members are firmly in the European Union? According to the Electoral Commission 17.4 million people (51.9%) voted to leave the EU, compared with 16.1 million (48.1%) voting to remain part of the bloc, with a turnout of 72.2%. Even the leading campaigners for leaving the EU thought that the remain campaign would win by a small majority. The immediate repercussions range from the decline of sterling, loss of the UK’s credit rating, resignation of the Prime Minister, turmoil in the shadow cabinet, companies moving production and services to the continent and that’s only by the time we go to press. Politicians are advised to remain calm, and take no hasty actions in triggering the exit. Time is needed to put the negotiating team in place, under the direction of a new Prime Minister. There is no clear demand of what exactly will be negotiated. Politicians in the Brexit team are putting the brakes on, and slowing the pace of change. There are alternatives to total exit from the Europe.

Many wonder why the leave vote was so strong outside of the metropolitan areas. People living in regions harmed by austerity and globalisation, voted leave as a way to protest their concerns about investment, job security, and access to hospitals, homes and schools. Migrants were made scapegoats, and complaints which should have been directed to the UK government were voiced instead against Brussels. It is not a crisis of UK alone, because we can see in Europe that similar anti-EU movements are growing. Le Pen is already calling for a referendum in France. In other countries we have seen the extreme right wing on the streets, and in parliaments.

It is important that South London solicitors have a chance to maintain relations with lawyers in Europe.

Some look to try the ‘Norway option’, which means continuing to remain part of the European Economic Area (EEA), the association agreement between the EU, Norway, Iceland and Liechtenstein. This could provide legal security for exports of most goods and all services exports from the UK to the EU (and vice versa). In order mitigate the damage of uncertainty this option could be adopted quickly.

The EEA does not cover criminal law or policing, a big advantage and would have to be negotiated separately. In contrast the EEA covers most EU laws on workers’ rights and the environment – so signing up to the EEA would guarantee the continued application of those laws in the UK. Staying in the EEA entails free movement of people, so negotiators may try to dis-apply this part of the EEA, but it would have consequences for the rest of the negotiations, such as limits on UK exports to EU states. As a member of the EEA the UK would still pay towards poorer EU Member States. One of the most divisive and unacceptable aspects of the leave campaign was the racism and xenopobia expressed openly and the murder of Jo Cox MP. JO Cox was well known for her opposition to racism and her support for human rights and her commitment to that which unites us as human beings. The alliance between a variety of organisations in the leave campaign gave a national stage to bigotry and allowed viscious racism to become open, on the streets, and on the internet. The Eurosceptics in parliament will seek to move away from international organisations and agreements, such as the European Convention on Human Rights. Those organisations and agreements have been central to setting basic internationally recognised human rights standards, whether in employment, criminal justice, discrimination, children’s rights or refugee law.

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Leaving the EU does not remove the UK ‘s membership of the European Convention of Human Rights (ECHR) or its obligation to uphold the rights set out in the ECHR. Nor would leaving the EU remove the UK from the jurisdiction of the European Court of Human Rights (ECtHR).The UK should remain a fully committed signatory to the ECHR as an important international standard in the sphere of human rights.

We can work together with lawyers all over Europe to counter these forces. We must join with those who constantly speak up for unity, and speak against those that would divide us. Lawyers are the defenders of the rule of law, access to justice and human rights.

It is important that South London solicitors have a chance to maintain relations with lawyers in Europe. SLLS is ready to join the Federation and also to twin with the bar association in a French city. We can support colleagues who work for peace in Europe, and support those where they are faced with the assaults on access to justice, where lawyers are criminalised for their defence of justice, as we see in Turkey and where they are supporting human rights of refugees and migrants as we see in Greece.

How do we start? By meeting up with lawyers from all over Europe. The FBE autumn congress will be held in Luxembourg City from 13 to 15 October. Participation is open to all south London solicitors, so why not join the group going from London to Luxembourg? It need not cost a lot with cheap flights from Luxair’s easy flights from City Airport, and early bird discounts on congress fees and hotels. Luxembourg is beautiful, and the food and wine excellent. To find out more about the Luxembourg Congress please go to: http://www.fbe.org/IMG/pdf/CONG_GEN_BROCH_2016_ENG.pdf There is a warm welcome for south London solicitors in Luxembourg City. Please contact sarachandler.lawsociety@gmail.com

Spotlight on Sadiq Khan

Mayor to reassure ambassadors that EU nationals will always be welcome

The Mayor of London, Sadiq Khan, will today hold a roundtable for ambassadors from across the continent to reassure them that EU nationals who live in the capital will always be welcome. London is home to around one million EU nationals, who make a huge contribution to the city - working hard, paying taxes and playing a major role in civic and cultural life.

last few weeks. I’ve agreed with the police that we will have a zerotolerance approach to hate crime and the full force of the law will be used to catch and punish any perpetrators.”

The Mayor will today tell ambassadors and senior dignitaries representing the 10 European Union countries with the largest number of nationals living in London that they will continue to play a valuable role in the city.

Enrique Ojeda, Chargé d’Affaires, Embassy of Spain, said: “We welcome the Mayor’s initiative and will fully cooperate with him and all the national, regional and local authorities to ensure that no xenophobic actions are allowed. London is a great city and thousands of Spaniards work or study here, being part of its vibrant community. They feel at home and that is how it should remain. Their well-being is a priority for the Spanish Embassy, and that’s why we are very grateful to the Mayor of London.”

He will also reassure ambassadors that, following the rise in reports of racist or xenophobic abuse in the capital since the EU referendum, he will not tolerate hate crimes of any form, anywhere in London. And he will underline his warning to Theresa May, the incoming Prime Minister, that she must not use the status of EU citizens in Britain as a bargaining chip in Brexit negotiations. “You cannot play politics with people's lives,” Sadiq Khan will say. Sadiq Khan said: I’ve invited European Ambassadors based here in London to City Hall to send a crystal-clear message that all EU citizens living in London - who make a huge contribution to our city - are very welcome here. “It is simply not good enough to leave EU citizens in London in limbo. The irresponsible position taken by some politicians has caused unnecessary uncertainty and anxiety amongst communities in London. “You cannot play politics with people's lives. “London is still a decent and open-minded city and we will not stand for millions of Londoners being used as a bargaining tool. “I’m calling on Theresa May to say very clearly now that she will guarantee that EU citizens who were living here before the referendum can remain. “We must remember that we are talking about many mothers, fathers, grandmothers and grandfathers of British children born and growing up in London. They are our neighbours, colleagues and fellow Londoners valued members of our local communities who make a vital contribution to our civil and cultural life. They deserve better. “I also want to reassure European Ambassadors that we are doing everything we can to stamp out the shocking rise in hate crime over the

Dariusz Łaska, Deputy Head of Mission, Embassy of Poland, said: “We were shocked by the recent incidents of xenophobic abuse directed against the Polish community and other EU nationals. The Embassy treats all such cases very seriously and appreciates the response of local authorities and police across the country to tackle the problem. “We welcome the Mayor’s pledge to combat and prevent hate crime as well as to campaign for the right to remain for all EU nationals, including the 200,000 Poles who live and work in the capital. London has a very special place in every Pole’s heart. It was the refuge of the Polish Government-in-Exile and free Poles for 50 years – during the Second World War and in the time of communism. The Polish community is a mixture of the descendants of those wartime and anti-communist exiles and those who decided to move to Britain after Poland joined the EU, who all equally contribute to the capital’s culture, society, and indeed economy.” Pasquale Q. Terracciano, Ambassador of Italy: "I welcome this initiative of the Mayor of London. Around 350,000 Italians live and work in London, contributing to the prosperity of this city. It is important to reassure those who have created a life for themselves and their families here that they are welcome to stay, and their right will be never be put into question.” Sylvie Bermann, Ambassador of France, said: “I am grateful to the Mayor of London for signalling the very important contribution of European citizens to London, a contribution which would be very hard to replace.

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South London Law Society AGM On 26th April, we held our annual general meeting in the London South Bank University. We have now moved the AGM to April each year, freeing up the Autumn season to host our annual dinner, which mentioned in Gareth’s president’s report will be held once again at the Oval. At the meeting, we discussed how we would continue to support our Junior Lawyers Division and also the students at the London South Bank University. Those established in their careers should have a duty of care towards younger and less experienced people starting out on the career ladder. We will continue to help the JLD and LSBU in the coming year through supporting work placements and any mentoring where available for younger members.

Peter Nicholson joins Russell-Cooke RUSSELL-COOKE HAS ENHANCED ITS COMMERCIAL PROPERTY PRACTICE WITH THE HIRE OF REAL ESTATE SPECIALIST PETER NICHOLSON.

We can confirm that the following officers remain unchanged: • • • •

President: Gareth Ledsham Vice President: Robert Hush Treasurer: Andrew Pavlovic Hon. Secretary: Sarah Hughes

We would also like to encourage this opportunity to welcome new members to help set the agenda for the upcoming year. If you are interested in becoming a member please contact Gareth Ledsham or any of our offices listed on page 4.

NOTE FROM THE EDITOR If you or anyone in your firm would be interested in writing an article for the next issue please do get in touch. I’d like to personally encourage you as a South London lawyer to be involved with the magazine and the society as much as possible. If you have an idea for an article, or have some news you would like to share, please drop me an email to eileen.donaghey@anthonygold.co.uk

Thanks, Eileen Donaghey, editor

Peter joins from Blake Morgan real estate team where he advised companies, institutions and entrepreneurs on the full range of real estate transactions including acquisitions and disposals, landlord and tenant, asset management, tax planning and security and financing. Peter has acted on a number of high profile national and international transactions involving a broad variety of clients including developers, investors, banks and retailers. Peter Dawson, partner and head of the commercial property group, commented “Our commercial property group has expanded significantly in the last few years. Peter’s expertise and experience is a much welcomed addition to the team”. Among others, supporting the practice are James Harris and Stephen Small recently promoted to senior associate. James in the commercial property group advises landlords, tenants, investors, developers, banks and pension funds on a wide range of property transactions, including acquisitions and disposals, leases, property management and secured lending. Stephen in the contentious property team is listed in the Thomson Reuters 'London Super Lawyers' list 2015 and was also named in the 2015 edition of The Legal 500. Stephen acts for both landlords and tenants, advising on all aspects of commercial, residential and mixed use property related disputes.

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Others promoted to senior associate include Andrew Pavlovic, Elliot Elsey, Jenny Bird, Simon Ewing and Tom Bradford.

SOUTH LONDON LAW SOCIETY www.southlondonlawsociety.co.uk

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What will the UK’s Brexit vote mean for the future of the country’s employment law? JANE CROSBY, SPECIALIST IN COMMERCIAL LITIGATION AND EMPLOYMENT LAW AT HART BROWN, OUTLINES WHAT EMPLOYERS NEED TO CONSIDER REGARDING EMPLOYMENT LAW NOW THAT THE UK IS OUT OF EUROPE. When the UK went to the polls on June 23rd, few people predicted the outcome that arose, with the Leave campaign scoring a shock win and a slender majority of the UK public voting to leave the European Union. In the time since the result was revealed, there has been much speculation and debate over what the decision means for the UK in various sectors. But what is important is that the nation starts to look to the future and prepare properly for what lies ahead, be it in property sales, finances, or indeed employment law. As the UK prepares to activate Article 50 and signal its intention to leave the EU, employers need to start to look at their next steps, and that includes being aware of what the Brexit decision means, and how this will shape the world of employment law when negotiations come to an end in around two year’s time. So what should employers be expecting to see change in terms of employment law in the next couple of years?

CHANGE IN THE LAW? In the main, experts have suggested that there’s not actually all that much to worry about when it comes to changes in employment law but time will tell. There are a number of areas of law which are enshrined in UK law such as discrimination rights, transfer of undertaking regulations, working time regulations and collective consultation. Contrary to popular belief, many of the beneficial employment regulations, both on the side of employee and employer, were brought about by UK governments and not the EU, so if and when Article 50 is activated, these would not change. On top of this is the simple suggestion that EU law is so integrated and ingrained in the minds and practices of the UK employment sector that there would be no real appetite for change, at least in the short term. And that’s not to mention the fact that companies and employees alike have enjoyed the benefits of European regulations for so long that to make an attempt to unravel them and replace them with new legislation would be little more than a time consuming exercise. It’s also highly probable, the CIPD claims, that although the UK will not be forced to adopt any new EU regulation after it has ceased to be a member of the Union, that it will remain bound by precedents set by the Court of Justice of the European Union (CJEU) and European Court of Justice (ECJ), which would mean there would be little in the way of worries surrounding large changes in the law.

IMMIGRATION Without a doubt the biggest impact of the Brexit decision, British employers will need to be aware of how leaving the EU will affect immigration. Many British firms across a range of sectors employ EU migrants who have the freedom to work in the UK indefinitely, but after Brexit, this could be muddied somewhat.

There could also be an agreement as part of the UK’s negotiations around leaving the EU that sees trade agreements put in place that also protect the freedom of movement EU nationals currently enjoy, allowing them to work in the UK after Brexit with little change.

EQUALITY AND RIGHTS Most of the equality laws that we enjoy in the UK were, contrary to popular belief, in place long before the EU membership, which means that the illegal status of discrimination of workers based on race, sex and disability will be unaffected once we have left the EU. It is difficult to imagine that the government will repeal the Equality Act 2010. What may change, however, is the rate of compensation that people can receive in discrimination claims against employers, which could face a limit under UK law. HOLIDAY ALLOWANCE The holiday allowance that UK-based workers enjoy at the moment is as a result of the EU Working Time Directive, which sets out exactly how many days of holiday someone is entitled to based on their contract of employment. Many experts expect to see changes in this area, with Frances O’Grady of the Trade Union Congress recently having stated that the six million workers who enjoyed the benefits of the Working Time Directive are likely to be worried. The main changes in terms of holiday allowance are likely to come in the shape of changes to how holiday pay is calculated and rules over opting out of the 48-hour working week, although it remains to be seen what we will actually see when push comes to shove.

TRANSFER OF UNDERTAKINGS The Transfer of Undertakings (Protection of Employment) Regulations 2006 TUPE was first implemented in 1981. This piece of legislation protects employees’ rights connected to their contracts of employment when there has been a transfer of undertakings or a service provision change. Generally it has not been a popular piece of legislation with UK businesses. It is difficult to predict what would happen to this legislation but the government may take the opportunity to make changes to help businesses. In general there may not be radical changes for businesses in the short term but they will need to keep updated to ensure they comply with the ever changing landscape.

Experts are somewhat split on what the move will mean for EU workers in the UK, with many believing those who are already in the UK will be given leave to stay without question, and others suggesting that EU migrants will thereafter have to satisfy similar immigration credentials as non-EU residents do at present.

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The Academy of Contemporary Music announces new London Campus opening September 2016 Having delivered an unparalleled music industry education experience within Guildford for over twenty-one years, helping to shape the careers of Ed Sheeran, Newton Faulkner, Amelle Berrabah, Zomboy and more, The Academy of Contemporary Music (ACM) is now extremely excited to announce that it will be bringing its unique brand of education to London.

Situated in Clapham, ACM London will be offering degree programmes in Professional Music Performance (covering bass, drums, guitar and vocals), Creative Music Technology, Music Business & Innovation and Commercial Songwriting, mirroring the fully immersive music industry experience already provided in Guildford. Partnering with Falmouth University (now ranked as the UK’s No 1 Arts University in all three University league tables), ACM London’s degree programmes will give students the opportunities to excel academically and professionally in the music industry.

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SAVE THE DATE! WEDNESDAY 16TH NOVEMBER 2016

THE SOUTH LONDON LAW SOCIETY

ANNUAL DINNER At The

KIA OVAL CRICKET GROUND

Falmouth University has built its reputation over more than a 100 years and is now a creative innovation hub, redefining education in the arts and beyond. With a graduate employability level of 97%, it is committed to getting its students great jobs in the creative industries. ACM London will deliver the same favourable student-to-tutor ratios that ACM Guildford has become widely known for, resulting in small classes, an unrivalled student experience and the highest quality of teaching and learning. With many prospective students expressing a wish to study in London, ACM is eager to welcome students through its doors in Clapham this September. World class facilities from brands such as SSL, Tama and Avid will be used by the high-calibre teaching faculty (all of whom are music industry professionals there to inform and inspire) to bring the rarest of opportunities and most up to date knowledge back from the outside world into classrooms, just for ACM students. ACM London’s newest appointments for 2016 include Kris Coombs-Roberts (Funeral For A Friend), Cherisse Osei (Paloma Faith), Arya Goggin (Skindred), Mark Richardson (Feeder, Skunk Anansie), Adam Perry ('A'), Sandy Beales (One Direction), Richard Boucher (Funeral For A Friend), Paul Sayer (Temperance Movement), and Ben Ash (Carcass). “We are extremely proud to be working with the UK’s number one arts University, Falmouth. With over 97% of students in work or further study within six months of graduation, we couldn’t hope for a more prestigious educational partner. Our Guildford campus is seeing a steady rise in student numbers, so ACM London is a great opportunity to expand our unique educational offering right in the heart of the music industry, where we hope to teach the industry talent of the future.” Kainne Clements Executive Chairman, ACM “Falmouth plus ACM equals a world-class offer - bringing together unparalleled levels of experience in University-level arts education with decades of Music industry expertise. The team at ACM is as committed as we are to producing graduates that embark on great, creative careers in their chosen field and we’re looking forward to working together in London.” Professor Geoff Smith, Senior Deputy Vice-Chancellor, Falmouth University. ACM London is open for applications to commence study in September 2016 via UCAS now. More details about the courses on offer and how to apply can be found here: http://www.acm.ac.uk/campus-acm-london/

www.southlondonlawsociety.co.uk

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HART BROWN SOLICITOR BECOMES RESOLUTION ACCREDITED SPECIALIST Kate Smith, Senior Solicitor in the Wimbledon Village office of law firm Hart Brown, has become a Resolution Accredited Specialist in complex financial remedies for high income households and those with substantial assets and private children law. The application process to be an accredited specialist is tough and the failure rate is high, but Kate’s wealth of experience in family law has resulted in her obtaining this highly sort after qualification. “I am really very pleased and a little relieved to have passed, “commented Kate on receiving her qualification. “The application consists of 18,000 words over 3 exams and 4 portfolio case studies. I sat

the first exam in May last year and the second part in November. A lot of time and weekends were taken up completing the papers. Not only is this a great personal achievement, it is also brilliant for Hart Brown to have another accredited specialist in the family department to expand our expertise and show the public our team are at the top of our game.” Kate’s experience in family law, covers divorce and financial matters, civil partnership dissolution, cohabitation disputes, cohabitation agreements, and matters relating to children and domestic violence injunctions. She is committed to upholding Resolution’s ethos of settling matters, where possible, away from the court arena in a constructive, cost effective and timely manner.

Enriching young minds for a successful future Open Days for 2017 entry Senior & Sixth Form Reception & Junior 15 & 19 Westwood Hill, London SE26 6BL

School bus services from the Clapham, Balham and Streatham areas

Saturday 17 September 10am-1pm Saturday 24 September 10am-1pm www.sydenhamhighschool.gdst.net

020 8557 7004

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Helping the local environment In 2014 Russell-Cooke embarked on an exciting challenge by installing four beehives on the roof at their Putney office. It has proved to be a successful venture and the bees have performed remarkably well in terms of honey production. The project is now in its third year and the benefits to the firm and environment are evident. Deborah Blythe, partner in the clinical negligence and personal injury team and head of Russell-Cooke's bee team comments, "being able to observe the bees at close quarters has led to a greater understanding of the challenges that these remarkable creatures face. Bees need a suitable habitat to forage and we want to do our bit to help.” Russell-Cooke is committed in its endeavour to help provide a suitable environment for the bees and has undertaken a number of environmental initiatives including the recent installation of a "green" roof. With the advice and guidance of charitable organisation, the Bee Friendly Trust, the bee team hopes to continue to improve the areas in and around their Putney office. The Bee Friendly Trust educate the public on the importance of bees and the work needed to restore areas that have been subject to environmental damage and destruction.

COMPUTER CRIMES AND DIGITAL INVESTIGATIONS Second Edition By Ian Walden

OXFORD UNIVERSITY PRESS ISBN: ISBN: 978 0 19870 559 8 www.oup.com

‘A BOOK OF REFERENCE ON CRIME WITH A CYBERSPACE FILTER’ –- NOW IN A NEW EDITION An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers There appear to be certain lofty members of our profession including (rather astoundingly) a few members of the judiciary who still think cyberspace is something of a space oddity. They should only read this book. Aimed specifically at the criminal law fraternity, Ian Walden’s ‘Digital Crimes and Digital Investigations’ will nonetheless be of interest to all lawyers who inevitably will have to deal with ‘high tech’ crime issues. In providing an overview of this indubitably vexed subject, this book, now in a new second edition, makes an important contribution to the still relatively scarce body of literature concerning this specialised area of law. The first edition was published – would you believe – nine years ago. And in case there are still a number of practitioners and judges out there who need reminding, the Internet was long past its infancy even then, having been in widespread use at the time for at least ten years. Recently published by the Oxford University Press, the book provides an important update which will certainly be welcomed by criminal practitioners. As the title indicates, the focus is on computer crime, more commonly referred to as ‘cyber-crime’ – a phenomenon facilitated by the ever-developing technologies of computer connectivity – i.e. the Internet. Now ubiquitous and almost instantly available, the Internet in the author’s words, has become ‘a key resource of the

global economy.’ Largely unregulated (except in totalitarian states) the Internet has also become a key resource for assorted criminals and terrorists. Author Ian Walden, who hails from Baker McKenzie and teaches an LLM course entitled ‘International Cybercrimes and Investigations’, mentions that the clients with whom he has had dealings, have exposed him to issues and insights that are not normally available to academics. He has also been a board member of a number of institutions concerned with Internet scrutiny, particularly on Internet safety. The book, he says, may be viewed simply as a criminal law text’ ‘operating as a filter through which we can examine the whys and wherefores of criminal law and policy.’ It can be regarded as a computer crime book, or ‘a book on crime with a cyberspace filter’ in short, a book which focuses specifically on crime, as opposed to other aspects of internet usage such as contracts, trademarks, domain names and the like, not to mention ordinary communications. As the author also remarks, it is obvious that computers ‘may play a part in the commission of nearly every form of criminal activity, from fraud to murder.’ The subject area is so wide that large chunks of it go beyond the scope of this book. The author therefore turns our attention to problems where computers and networks are involved, ‘either,’ he says, because ‘the legislation was drafted in an era before such technology was envisaged, or because statutory drafting has failed to be robust enough to appropriately address the use of information computer technologies (ICT).’ And there, fellow lawyers, lies the crux of the problem. This is indeed a massive subject and those who crave further information on it will find research references aplenty in this book, including tables of cases, legislation and international treaties and conventions. Also note the four appendices, extensive footnoting and the ten-page bibliography. Based on recent developments in digital and the current pace of change, it is anticipated that further editions of this distinguished and accessible work of reference will appear in the future, ideally at more frequent intervals. The publication date is cited as at 2016.

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The Clapham Omnibus 12

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News

Vet charity PDSA launches nationwide Free Will scheme

WINE OF THE SEASON with Conal Gregory, Master of Wine

Veterinary charity PDSA, which provides care for sick and injured pets of people in need, has launched a nationwide Free Will service for pet lovers and is seeking solicitors to join its programme.

The charity’s vets and nurses provide over two million treatments every year, helping 300,000 owners who would otherwise be unable to afford veterinary care for their pets. Two out of three of the free veterinary treatments the PDSA performs annually are funded by gifts in Wills, making the charity one of the UK’s most popular beneficiaries among legators. Ruth Lister from PDSA, says: “Legacies make up a vital part of PDSA’s funding. When we piloted our Free Wills scheme, we had a fantastic response from animal lovers who chose to leave a gift to us. This lasting legacy shows their love for pets by helping us provide our life-saving veterinary services across the UK.” PDSA will pay participating solicitors a fee to write a simple or mirror Will. Clients may then choose to leave a gift to PDSA in their Will although this is not compulsory. The scheme will be promoted extensively in selected regions across the UK, including Hampshire this summer, driving appointments with PDSA’s partner solicitors in the area.

“PDSA has been saving, protecting and healing pets for nearly 100 years and we are one of the most popular animal charities to offer this free Will service,” said Ruth. “We hope solicitors will add us to their current list of Free Will charities, or work with us to provide free Wills for the first time.” PDSA’s offer of a free simple Will or Codicil is available to individuals or couples over the age of 50, with the opportunity for solicitors to build up ‘Will banks’. Ruth added: “As well as the financial benefits of Will-writing services, this is a great opportunity to promote your corporate social responsibility by supporting one of the UK’s best-loved charities.” n

For more information about joining PDSA’s Free Will offer, please visit www.pdsa.org.uk/freewill or call Ruth Lister on 01952 797274.

One of the delights of summer is to sip a chilled glass of dry white Vinho Verde, the ‘green’ or youthful wine of northern Portugal. The most stylish is made exclusively from the Alvarinho grape and arguably the finest district is around the small town of Moncao on the Spanish border with Galicia. With ripe stone fruit flavour and refreshing acidity, a lovely 2015 example has been shipped by the IEC Wine Society (£8.50) n (tel 01438 741177). For a BBQ or Sunday roast, Geyser Peak’s Walking Tree Cabernet Sauvignon is made in the Russian River valley of California. The wine made from 16 year old vines is fermented in stainless steel, followed by 22 months in French oak. An inviting raspberry-red hue and classic rich fruit on both nose and palate show real balance. Try to open an hour before serving. Waitrose (£14.99) n (tel 0800 188 881) Sponsored by the Godalming office of NFU Mutual.For further information or to discuss how the friendly local team can help you protect the things you value, including your home, art, antiques, fine wine and more call 01483 667421. www.nfumutual.co.uk/branches/godalming/

TheClapham ClaphamOmnibus Omnibus 15 The

Junior Lawyers Division

THE JUNIOR LAWYERS DIVISION Q&A WITH AKILAH DOUGLAS, TRAINEE SOLICITOR FROM AMPHLETT LISSIMORE SOLICITORS What sparked your interest in law? I have always been interested in television and film crime and legal dramas. I also enjoy documentaries on American Civil Rights and access to justice. As you will read in my blog entitled â&#x20AC;&#x2DC;I object!â&#x20AC;&#x2122; the public perception of legal proceedings is extremely different than reality. I would become enthralled with the idea of Courts, Barristers, Judges and closing arguments and I decided that Law was the career path that I wanted to proceed with. How did your idea of the profession compare to being a trainee? My perception of solicitors was that they spent a lot of time in Court with counsel which is not the case. There are many areas of law which are procedural and they require accuracy and a great attention to detail such as Probate and Conveyancing. Unless these areas become contentions they donâ&#x20AC;&#x2122;t need to be litigated so the legal approach is more one of process opposed to constructing legal arguments. I have chosen to specialise in Private Client Law on qualification which includes Wills, Probate and Lasting Powers of Attorney. I found that this area of law suited me well due to my nature. Firstly, I have always been interested in law that assists individuals rather than companies. Secondly, I would like to be involved in helping people at a difficult time in their lives and making one aspect of what they are going through seem a little less stressful. This can take place at the probate stage but also at the stage of drafting a Will or a Lasting Power

of Attorney to make the inevitable slightly easier to handle practically. I have been very lucky that during my training contract at QualitySolicitors Amphlett Lissimore I have been encouraged to assist on a variety of cases in different areas of law. I have assisted on files in areas such as probate, conveyancing and litigation. I have attended mediation and have been to Court on a number of occasions to gain advocacy experience which I really enjoy. I have therefore been fortunate to choose an area which I know having experienced, I really enjoy and I am excited to progress as a newly qualified solicitor this autumn. How has the law changed during your time in the profession? The law has changed drastically since my time in the profession. The most noticeable change is the eligibility for legal aid and the areas of law that legal aid now covers. The law has changed considerably and the practice of law has had to adapt to accommodate the change. In relation to my chosen area of law, probate, I am extremely anxious and excited to see what will be the outcome of the Supreme Court case of Ilot v Mitson which will be heard later this year which may change the way we draft Wills for our clients and to whom we choose to leave our estates.

Is there a glass ceiling for females within the profession? I personally havenâ&#x20AC;&#x2122;t yet experienced a glass ceiling. The partners at QualitySolicitors Amphlett Lissimore have encouraged me greatly within the past two years and they are encouraging me further to progress within the firm on qualification. For inspiration I look to the partnership structure within the firm where there are equal numbers of both male and female partners. The female partners inspire me to progress and I hope that the firm continues to encourage me to strive for success.

Property lawyer a perfect match for Thea Limited's construction practice Construction solicitor and experienced mediator Peter Webster has hit upon the ideal way to grow his small corporate practice. Kate Gould, a senior property lawyer returning to part-time work after a ten year break, is now a consultant to Thea Limited and available to broaden the service offering to Thea Limited's existing clients as well as introducing new clients to the practice. Peter said "Many of my construction law clients also need property law advice and services and it's great that I can now offer them those within Thea Limited rather than having to send them elsewhere. The consultancy arrangement means that I haven't had to put the cart before the horse and guarantee a full workload for Kate from the start." Kate said "During my break from paid work I volunteered in several local projects and have built up a network of contacts. The flexibility of my arrangement with Thea Limited allows me to take on paid work from those contacts without having to set up my own practice from scratch. It's the ideal solution for me, and fits well with my ongoing child-related and volunteering commitments."

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Employment

Interview with Leilani Reader Leilani Reader discusses the launch of their new revamped website. Leilani why did you want a new website for the business?

Photo: Leilani Reader

The old site was functional but basic. Content was limited and not particular accessible. I wanted a site that would reflect LR Legal’s personal customer centred ethos while keeping up to date with the latest digital marketing trends. Our focus is on delivering high quality bespoke recruitment services to both our clients and candidates across the legal industry; we needed the website to reflect this.

Our jobs search is more comprehensive allowing candidates to search not only by role and region but also by legal specialism and area of law. The featured jobs and client and candidate testimonial sections attest to the excellent and long standing relationships LR already have in place. While the referral scheme demonstrates that we reward our customers well for investing their trust and time with us.

What does the new website set out to do?

What else is new?

We feel that the new site sets out what LR legal is about in clear and simple terms. Searching for a new job or candidate is a journey and that journey starts here on our website. The site is our ‘shop window’ and providing quality information with a simple user friendly application process that is easy to find helps simplify that client or candidate journey and make them want to connect with us.

The website is also home to the latest news and live jobs from LR legal recruitment, regularly updated so that candidates are always informed with the current trends in the legal and recruitment industries market. It also integrates video media in the form of frequently asked questions and specialist recruitment advice. This platform enables users to fully engage and interact with the site over a multitude of social media channels and engage in current trends.

How does it differ from the old website? The new site has more information, with separate candidate and client areas offering a comprehensive guide to services, processes and tips. The company ethos runs throughout the site so that customers can be as confident as we are that they are making the right choice for their needs.

We hope to see you online soon. n

For more information please contact our office on 0208 464 2511 or email me at leilani@lrlegalrecruitment.co.uk www.lrlegalrecruitment.co.uk

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The Clapham Omnibus 17

Cyber Security

Why Cyber Security Matters Cyber security is rarely out of the news and this won’t change in the near future. In our own research amongst SMEs, we found that 76% of companies are concerned about cyber security, with 17% having experienced a cyber attack. From a lawyer’s perspective the issues are twofold: • the legal steps to help prevent the issue arising in the first place; and • explaining to clients why their particular business might be adversely impacted, even though it’s not a high-profile business.

The Threat The potential impact of cyber-security issues on the SME can be seen from the Court of Appeal’s reversal in March 2015 of a decade of case law which had prevented claims for compensation under the Data Protection Act 1998 for emotional distress caused by the breach of data security rules.

A key consideration which is often neglected is ‘people security’. Whilst companies can have the very best tech in place and invest heavily in new systems, the fact is that around a third of data security issues are people-based, ie caused by human error or carelessness. In 2014, a cyber-claims study found that 34% of claims for data loss was down to lapses in “people security”, with 11% of the dataset being rogue employees; 10% for lost or stolen laptop devices; and 13% for staff mistakes (this was the highest cause after hacking!).

Until the decision in Google Inc. v Vidal-Hall, the English Courts had interpreted the law as meaning that compensation was only available where a Claimant had suffered some sort of financial loss as a result of a data protection breach: typically, this was associated with financial services companies where a fraudster might access personal finance information from the accidental disclosure of financial data. This had the consequence that most breaches of the Act, which normally only relate to the emotional distress could not be the subject of a claim, as there was no financial loss suffered. This has all changed now as the Court of Appeal decided that data protection law should be interpreted more widely as meaning that compensation should not be limited to cases where financial loss can be shown, as that was not the intention of the original EU legislation. The decision in Google Inc. v Vidal-Hall is likely to have a number of potentially wide-ranging implications, of which many of your SME clients holding customer data should be aware, in particular, the likelihood that there will be more claims for compensation now that there is no requirement to show financial loss. Although the Court of Appeal commented that it was likely that individual awards of compensation would be relatively modest (so far they have been in the low thousands of pounds), there could be a growth of class actions in which a large number of individuals have suffered emotional distress or invasion of privacy, leading to larger overall damages awards. In addition to the increased risk of claims of compensation as a result of a cybersecurity breach, the accompanying reputational damage and loss of trust are likely to hit SME businesses even harder as, for many, this is one of their key trading propositions. It would be unfair to say that we expect our telecoms provider to mess up occasionally, but we really don’t expect the same of SME businesses where there’s a more personal relationship with its clients.

The Legal Action List Legally, your client needs to show that every reasonable care has been taken to prevent a loss of data or cyber-security breach. Our recommendation is that in order to ensure that they can demonstrate they are complying with data protection rules, your clients should ensure that they take all appropriate measures, which include: • having clear data protection/cyber security/privacy policies in place; • actively monitoring the policies to ensure that they are being followed in practice; • having a sound IT infrastructure in place; • carrying out a cyber-security risk assessment tailored to the business; • incident management – how to respond to a breach; • staff/employee education on security risks; • guidance on the regulatory/legal regime in place.

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(Source: http://www.netdiligence.com/NetDiligence_2014CyberClaimsStudy.pdf )

Organisations must make sure they have robust policies covering cyber / data security, data protection and IT and communications, which are communicated to employees, together with an explanation of the role that well-trained staff can play in minimising the risk of cyber security breaches. Your clients need to explain clearly to staff how they will monitor compliance with the policies, the sanctions imposed for any breach of the policy and the procedure through which those sanctions will be enforced. The key is that employees must understand that they are required to comply with these policies and that a breach of any of the policies is an HR issue that could ultimately lead to dismissal.

The Future The pace of legal regulation in relation to data protection/cyber security is hotting up with the recent passing of the General Data Protection Regulation by the EU. From early 2018, your clients will: • generally need to notify national authorities and affected individuals in the event of a data breach; and • be subject to massively increased fines (potentially E20 million or 4% of annual worldwide turnover. n So, time to take cyber security seriously. By John Warchus and Katherine Maxwell, Moore Blatch

Cyber Security

NEW RELEASES DUBLIN 16 June 2016 Clio, the world’s leading cloud-based legal practice management provider, has released four new integrations this year to assist their users in the UK and Europe to run their legal practices more efficiently.

F rom client intake, to intellectual property agreements, and tracking every billable second, these new integrations allow legal professionals do more with their practice within Clio, further emphasising the company’s vision to not only assist law firms in their day-to-day practice management needs but to significantly simplify their operations and help them grow their practice. Derek Fitzpatrick, General Manager for Clio EMEA, had this to say: “As Clio’s customer base in the UK and Europe grows our integration strategy helps to connect them with some amazing software designed for the specific needs of their practice. Previously many of these integrations had only been available to our North American users so we’re delighted to be able to work so closely with our platform partners to make them available for our users in Europe.”

In addition to these integrations Clio has also added a Matter budgets feature, which allows users to set a budget for any new cases they open, once a user-defined percentage of the budget has been reached Clio will notify you via email. UK and European law firms can now combine Clio with 14 other online services directly and hundreds of others using Clio’s API, making Clio the most integrated legal software available, letting users choose the tools they’re most comfortable with. These new integrations and improvements further empower Clio customers to do more with their practice and put technology to work for them. To learn more about Clio’s integrated suite of solutions, visit www.clio.co.uk

These new integrations include partnerships with the following:

ALT LEGAL Alt Legal is the fastest and easiest way to prepare, file, and manage intellectual property. Developed by lawyers and paralegals, it’s trusted by global law firms, boutique firms, and corporate legal departments to handle thousands of filings daily. With this integration, customers can sync their IP filings, client information, and billing with the rest of their practice in Clio.

HALO NBI Halo NBI is a client intake app that allows lawyers to process new clients and matters quickly, efficiently, and accurately. Halo NBI mitigates Customer Due Diligence risks by performing conflict, antimoney laundering, and identity checks along with risk assessments of each new client entered into Clio. Halo NBI also integrates with Hubspot, the leading inbound marketing platform, and InfoTrack, the search platform of choice for many conveyancing solicitors.

CHROMETA Chrometa captures every minute of your day for you. From computer-based time like email and web research, to smartphone calls, it’s all captured passively for you with Chrometa’s time trackers. Time entries can then be connected to your Clio matters and exported back into Clio for billing.

CLOCKTIMIZER Clocktimizer creates powerful visual reports that are easy to understand, providing you with one-page insights into your matters and clients on the basis of your time tracking data. Compare fees across matters to create fee quotes and make data-driven decisions with the Clocktimizer drilldown tool.

The TheClapham ClaphamOmnibus Omnibus 19

Cyber Security

Cyber Security: Are you Covered by Your IT Managed Service Provider? There’s been a sharp increase in news stories from law publications around cyber security. Between Friday afternoon scams, rising reports of data breaches and - dare we say it - major headline news such as Panama, cyber security is rarely out of the media spotlight. Adding to this is the Information Commissioner's Office (ICO), who regularly highlights in both their blog, website and other communications just how easy and probable it is in today’s digital environment to suffer a cyber breach. In 2015 such cyber breaches racked up a bill of £34bn to UK companies (before any consideration of the priceless cost of reputational damage). Fifty percent of these breaches were caused by inadvertent human error. The UK was the most targeted country in Europe for attacks and frighteningly 1 in 20 emails sent resulted in a successful breach. On top of digesting the above mentioned dangers, today’s law firms also have to consider tightening regulation around data, the protection of huge amounts of sensitive information and the impending advance of cyber criminals growing in sophistication.

● Regular system tests/penetration tests to stay in line with known vulnerabilities and trends ● Advice on processes, policies and accreditations needed to support protective technology (technology is 1/3 of the cyber solution) ●Training to raise the risk awareness of your support staff and partners ● Monthly and quarterly reporting of traffic going in and out of your IT network ● Alerts if anyone attempts to steal data or other digital assets ● Security planning ● Crisis management ● 24/7/365 Rapid-response service

It’s a lot to take on. Unfortunately though, law firms are a lucrative target - and very much worth the trouble for cyber criminals.

Cyber Essentials

“Doesn’t cyber security fall under my managed service provider’s remit?”

Cyber Essentials is a Government run scheme put in place because 80% of cyber-attacks are

Am I Covered by my Managed Service Provider (MSP)?

preventable. It’s also a great place to start in protecting your practice.

The answer is unfortunately, probably not.

Some salient data points our own forensics team have gathered whilst implementing Cyber Essentials into law practices in the last 12 months include the following:

Managed Service Providers adhere to, and have a good level of security, but they are not security specialists. Nor should they be; managing complex infrastructure, software, hosting, development, support, updates and all things IT is a different role entirely to cyber security. Cyber security is comprehensive and complex - it needs a specialist. It’s a bit like marking your own homework. One cannot be given both the responsibility of directing the movie and being the critic, or cooking the food and judging its quality. The Consequences of Suffering a Breach If you suffer a security breach you’ll potentially have to pay a fine to the ICO (In 2014 173 law firms were investigated) in addition to costs associated with administration, loss in revenue and general business disruption. The costs of a breach range, according to the 2015 Information Security Breaches Survey, from £75k at the lower end for SMEs to over £3m for larger firms. And with regard to the probability of suffering a breach, 90% of large organisations and 74% of SMEs suffered one in 2015.

● On average Law firms tend to fail 40% of basic cyber security controls ● Out of the basic security control failures we found 55% were under the direct remit of the Managed Service Provider. Conclusion You are probably not protected from breaches through your MSP and ignorance is no longer bliss - you will be scrutinised should you suffer a breach not only by the regulator, but by your clients. Not only are you not probably covered by your MSP, indemnity insurance rarely covers cyber breaches either as it is designed for third party protection and in the case of a data breach, the third party may have no idea their data has been breached in order to warrant a claim. Risk management and a combined approach is our primary advice here.

What to Expect from a Cyber Security Specialist Security specialists take a holistic approach derived from globally tested methodologies and hold best practice security accreditations. Technology operates as the enabler of cyber security but you need the right governance in place and you need your users, i.e. your employees, to follow the procedures and policies in place too. The below list aims to highlight some of the differences in the roles of cyber security and IT managed services by showing what a cyber security specialist will deliver for your practice: ● Forensic capabilities - an example of this in action would be to ascertain why an accounts team received a fake email from the MD requesting a transfer of funds or a fake email from your bank asking to provide account credentials

The Clapham Omnibus 20

ThinkMarble ThinkMarble are cyber security specialists for the legal sector. We deliver enterprise class cyber security at an affordable price. You can identify potential threats to your practice and whether you are covered by your IT provider/department with our free, no obligation cyber assessment. n https://www.thinkmarble.co.uk/. By Andy Miles, CEO of ThinkMarble

Education Matters

It’s not what they do, it’s the way that they do it: building resilience As one school year ends and another is in prospect, Sydenham High School’s Dr Elyse Waites urges parents to praise effort rather than outcome as the recipe for success. The eminent psychologist Prof Carol Dweck has just published her findings from a seven-year study into the impact of praise on children. She found that mothers who praised the effort their children put into a task – the process - rather than the results of that task, raised individuals who were not only more resilient but who also had higher test scores in maths and languages and were more willing to attempt problem solving exercises. The theory is that by praising a child’s efforts, strategies or approach to a problem, rather than their innate intelligence, you demonstrate that success isn’t ‘fixed’ and rewards come from hard work and practice. This results in children who are aware that they can change and develop their intelligence as they grow and will therefore be more open to challenges in the future as well as better equipped to cope with setbacks. A child who lacks resilience is one who is either too scared to put their hand up in case they look stupid or one who gets an answer wrong in class in September and is then convinced they are ‘rubbish’ at that subject for the rest of the year, never putting their hand up again. Praising innate intelligence fosters children who become overly concerned with doing well and continually proving their intelligence. They end up avoiding challenging tasks in case they are shown to not be quite as intelligent as everyone thought. This undermines achievement and motivation, allowing children to give up or opt out when things get hard.

Praising effort, in contrast, gives children motivation and encourages them to keep learning. If they know they are rewarded for hard work, thinking and questioning then they will continue doing this. The more they do, the more resilient they will become and the more they will succeed. They won’t mind if they get something wrong in class because they know it is the questioning that is important. So, try to reserve praise for when your child makes progress with something that they struggle with. If they always do well in English and writing essays is second nature but they find French vocabulary tough to remember, praise them when they improve by a mark in a French test rather than another A in English. This is not to say that their English essay doesn’t deserve praise but make it constructive and in response to some improvement in a particular area (planning or spelling perhaps). We all want our children to believe that their success is in their own hands. Making this simple but effective switch in your attitude to praise will give your children the confidence and resilience to face challenges and the motivation to face up to setbacks. Dr Elyse Waites is Head of Biology at Sydenham High School GDST and runs the student Professional Skills programme

The Clapham Omnibus 21

Conveyancing Focus

A history of innovation in specialisation The Council for Licensed Conveyancers was established in 1985 to foster competition and innovation in the conveyancing market. 30 years on we are still helping legal businesses thrive by finding new ways to meet changing customer expectation. Our approach is to support firms to achieve compliance and to accommodate different ways of working where we can. Our experience as a specialist regulator of conveyancing and probate allows us to tailor our regulation to those areas of property law. Thriving conveyancing businesses… This history, approach and experience may explain why CLC regulated firms have grown to enjoy a market share of transactions that is far greater than their numbers would suggest. CLC firms make up just 4.4% of Land Registry account customers but generate more than 10% of transactions by value. The average number of transactions for value in September 2015 was 50 for CLC firms and 20 for all others.

EDUCATING AND REGULATING SPECIALIST LAWYERS PROTECTING THE CONSUMER SUPPORTING INNOVATION, COMPETITION AND GROWTH

CLC regulated firms account for 25% of the transactions carried out by the top 100 conveyancing firms by volume. But there are thriving firms of all sizes and types regulated by the CLC. …with no need for additional accreditation There has been no need for an accreditation scheme for CLCregulated firms or lawyers. Specialisation and the scale of firms as well as the effectiveness of regulation have meant that such schemes are unnecessary. n Find out more To find out more about qualifying as a CLC lawyer or how to set up your conveyancing or probate practice under CLC regulation, visit our website www.clc-uk.org or call us on 020 7250 8465.

IT’S TIME TO THINK ABOUT THAT MOVE

To find out more about how your practice could benefit from transferring to the CLC, contact us on the details below.

www.clc-uk.org/Changing-Regulators or call 020 7250 8465

The Clapham Omnibus 22

Conveyancing Focus

The Future of Conveyancing: Adam Bullion, General Manager of Marketing at InfoTrack explores how we have embraced technology and how technology needs to be employed to reduce the time between instruction and completion. Looking back, it’s probably fair to say that the processes associated with conveyancing haven’t changed dramatically, other than the failed HIPS scheme almost 10 years ago. However, you’re probably aware that the Department for Business, Innovation and Skills (BIS) will soon issue its ‘Call for Evidence’ as they look at the future of conveyancing. This is in response to home buyer experiences where there is an unknown outlay of costs due to delays within the process. Conveyancers themselves would admit to sharing similar frustrations with the process. Presently, conveyancers are visiting a plethora of websites to complete matters. That means rekeying the same information repeatedly into unrelated systems that look completely different. And with each site requiring a different log in and password, it’s simply inefficient when you compare it to the aggregated technology in our personal lives.

The simplest answer is to use technology that reduces the time between instruction and completion, keeping both the conveyancer and homebuyer happy. Companies that offer technology for the conveyancing industry need to focus on incorporating all steps of the conveyancing process, including AP1 Transfer, SDLT Submissions and even the Contract Pack, in order to make it easier to manage; simple steps that reduce the stress of a transaction for both the conveyancer and their client.

The future of conveyancing is very much a change of technology rather than the home buying process.

Providing the industry with the ability to complete all relevant searches, transfers, form submissions and contracts within a single website means that conveyancers will start saving time from the moment the quote is issued, and we all know that time is money. Utilising a single website where all aspects of the process link together eliminates any rekeying of information and accessing of multiple sites simplifying the various tasks.

Consider how we manage our day to day lives now we’re living in a 24-hour society. We all have a myriad of useful ‘apps’ on our smart phone or tablet which is technology that we enjoy using. It’s these experiences that change our expectations – to the point where we now demand more. Having been exposed to clever and intuitive technology we now have an elevated expectation of instant results.

The future of conveyancing is very much a change of technology rather than the home buying process. And that’s why it is now important that conveyancers adopt technological change. In the crowded market of suppliers, there are technology innovators but it’s up to the conveyancer to take a step back and look objectively at technology solutions that deliver against their needs.

Unfortunately, the same can’t be said of the conveyancing process, a process that some consider as being suffocated by regulation. Conveyancers’ frustrations are clear – too many steps in the process to manage risk. Too many forms to complete. Too much rekeying of data. And too much time spent managing clients who don’t understand the conveyancing procedure. Taking into account all these frustrations, we simply need functional, enjoyable technology that ensures the process is made smoother, faster and easier.

InfoTrack already has a fantastic heritage of delivering superior information services in Australia and has brought that same vision to the UK market, with a fast growing base of happy clients working with a more efficient platform. InfoTrack are applying forward thinking technology that truly challenges the traditional methods of completing a matter, ensuring all tasks – from instruction to post-completion – can be completed within a single system. n By Adam Bullion, General Manager of Marketing at InfoTrack.

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The TheClapham ClaphamOmnibus Omnibus 23

Conveyancing Focus

5 TIPS FOR PROFITABLE CONVEYANCING Have you turned away conveyancing work because it’s not delivering profit? Is the time and hassle involved in accurately preparing documents in your current case management software a barrier to accepting the work?

I f so, it’s time to seriously reconsider conveyancing work. This multibillion pound industry is slipping away from the small law firms who have traditionally been the primary advisers in this space. Professional marketers, entrepreneurs and estate agents sense the inactivity of small law firms and are taking advantage of it by competing for customers that traditionally seek advice from firms like yours. To regain profitable conveyancing business and deliver it with confidence. 1. Ditch the spreadsheets when creating completion statements. There are faster, more effective approaches! A good case management system will create accurate statements for you in minutes, eliminating hours of manual checking. 2. Implement a document production system that’s accurate and efficient. Generating documents and letters lies at the heart of conveyancing, so you need an efficient and accurate system. Find a system that has a library of up to date forms, documents and letters to hand and an integrated database, so you capture data once and re-use it throughout the matter. 3. Critical dates can change. Ensure your software can handle this! Conveyancing revolves around critical dates. However, in a complex chain of transactions, dates can slip. Your critical date system must be flexible enough to cope with that.

4. Integrate a good search software with your case management system. Find a system that enables you to • Order searches directly from the conveyancing matter • Return every search result electronically into the matter document management system. • Automatically debit the cost of every disbursement to the correct matter. • Pay a single supplier for search and let them about payment of numerous third parties. 5. Use accounting software you trust. Whether preparing the completion statement, checking disbursement, or handling client money, you need to know that your accounting system will enable you to accurately complete all accounting transactions. Peter Baverstock is Chief Executive Officer of LEAP in the UK and has been involved in developing software for small law firms for more than 20 years. He may be contacted at peter.baverstock@leap.co.uk or you can connect with Peter on LinkedIn. You can also visit www.leap.co.uk/conveyancing/ for more information.

AVOIDING THE MINEFIELD OF LAND CONTAMINATION Don’t be caught out by the new statutory guidance on land contamination. Thames Water Property Searches can advise you how to protect your client from unforeseen environmental liabilities.

L ocal authorities now have new guidance on how they decide whether land is contaminated or not. The Contaminated Land Statutory Guidance 2012 has replaced the previous statutory guidance issued under Part 2A of the Environmental Protection Act 1990, although legislation remains unchanged (click here (http://www.lawsociety.org.uk/support-services/advice/practicenotes/contaminated-land/) to view The Law Society Practice Note dated 13 April 2016). Both Industrial and commercial activity may result in land contamination, which if not properly dealt with, could pose a risk to the public health or the environment. Land is only treated as ‘contaminated land’ for legal purposes if it poses an unacceptable risk but can be a significant issue in a small number of transactions and, if not identified correctly, environmental liabilities may arise. Seeking specialist assistance is essential. We have a range of thorough and reliable property searches (both residential and commercial) that can identify any potential risks and help you protect your client, for example; Envirosearch Residential, Homebuyers, Sitecheck Assess and Site Solutions to name a few.

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WORK WITH US We are the ideal business partner for conveyancers. All your searches are taken care of quickly and reliably. What’s more, additional support is there when you need it, making your professional life simpler. Our main features: •One stop shop: The searches you need with helpful recommendations • Search Gods: Specialist advice from our qualified search experts. • Partners: We will use our extensive trusted network to advise you on how to make your processes run more efficiently n If you would like to find out more about our products or would simply like some advice, please do not hesitate to contact our customer experience team on 0845 070 9148 or visit: www.thameswater-propertysearches.co.uk

Conveyancing Focus

The Client-focused conveyancing case management system that keeps everyone InTouch. In 2012, we bought our first house. In total we viewed 44 different houses. We did what we thought was correct. We went to viewings, we fell in love with a house, we put an offer in, Job done, or so we thought... Wrong! The first offer fell through. We tried again, we fell in love with another house. We put another offer in, it got accepted, we were going to be home owners and then… …it fell through, leaving us confused and disappointed. We persevered and finally, our third offer on a different house got accepted. We were ecstatic. Our experience of the conveyancing process over the next few months, was an emotional rollercoaster. We had to quickly understand a myriad of complexity – searches, house insurance, drawing up a will, SDLT and so on. What started out as an exciting adventure had now turned into a mess of complications and confusion.

You will be in good company with InTouch InTouch is used by regional and high street firms; from solicitors like Murray Hills and Bird & Co, to Licensed conveyancing firms like PDR Property Lawyers and Michelle O’Shea & Co. We even have a hybrid agency/solicitors taking advantage of InTouch.

Efficiency at the heart of everything InTouch is above all easy to use and designed to help you run a more efficient practice. Our aim is to improve the conveyancing process, and we think that technology is a key part of the service. More and more buyers & sellers are starting to expect easy and clear technology to help them understand what has to happen and what they can do to help the process.

Don’t get left behind

The crux of the problem was, we had no knowledge or understanding of the process. We often felt frustrated by not knowing what was happening.

Don’t let your clients feel like we did when bought our first home. Keep them in the loop, keep them excited, show them you care! Keep them InTouch. n

I’m sure that we annoyed the hell out of the estate agent and conveyancer. We were always ringing them asking – “what’s happening”, “when can we move in”, “this costs what?!”

It’s time to get InTouch – 0115 888 11 55 www.intouchapp.co.uk

The whole process made us think that we couldn’t be the only buyers that felt this way when buying a house. And so we started to wonder, what could we do about it?

InTouch is born The result was InTouch. Our first solution went live January 2014. In the two and bit years since then we have continually improved the software - thanks to feedback from conveyancers & agents.

How InTouch can help you Conveyancers are able to upload and send all their letters and e-mail through InTouch. The powerful reports generated by InTouch enable practices to understand how their business is running. Quotation calculator’s are included free of charge to help conveyancers draw in new clients out-ofhours and also via their introducers.

Data Security InTouch inside highly secure, specialised Microsoft Azure Data centres, adhering to UK auditing standards. All data and documents are encrypted, and we continually improve our security standards as the industry changes. We actually document our security practices on our website, with the aim of educating lawyers on best practice techniques, raising the standard of security within the conveyancing community.

Cloud based technology You can access InTouch from anywhere– you can even sit on the beach and keep your clients up to date. In fact, one house buyer recently left a review saying he was able to enjoy his holiday in New Zealand because he received updates through the InTouch portal telling him how his house was progressing.

Seamless integration Another benefit of InTouch is that it integrates seamlessly with general practice management systems, accounts packages, search providers, and also Microsoft Word & Outlook. We focus purely on supporting the conveyancing process, thus making sure we can provide the best conveyancing case management system possible.

Training and Support Switching to InTouch is straightforward and easy. Firstly, we offer training that will get all your staff using InTouch in easy, simple steps. Customers are not tied into minimum contracts or setup fees. The InTouch model is a simple ‘pay per case’ one, that ensures we only make money if we provide you a good service. Check out www.intouchapp.co.uk for details of the pricing.

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Legacies

Canine Care Card Some dog owners worry about what might happen if they were to pass away, leaving their beloved four-legged friend behind without an owner. Thankfully, Dogs Trust offers a fantastic free service that aims to give owners peace of mind, knowing that their dog will be loved and cared for if the worst should happen. The Canine Care Card service not only offers 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 given them lots of TLC whilst they waited to find their happy new homes. Two such dogs were Greyhound duo, Red and Sally, both seven, who arrived at Dogs Trust Basildon, after their owner sadly passed away. They were looking for a lovely big garden to sprint around in, and a snuggly sofa to stretch out their long legs in the evenings. Dogs Trust Basildon was able provide them with a comforting home-away-from-home, sofa and all, until they found their ‘furrytale’ ending with a loving new family. Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving owner.

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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 Red, Sally 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 - which 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”.

Risk & Compliance

CAN WE STOP USING THE C-WORD? I hate the word ‘compliance’. Can’t stand it, in fact. You might find that strange for someone who specialises in supporting Compliance Officers. Don’t get me wrong, it’s not because I don’t like the work. Five years on, I still love helping our small firm clients. Reducing the burden on COLPs, improving quality, reducing complaints and the risk of PII claims. It’s the word itself. It irks me. What’s worse is that I feel compelled to use the C-word throughout our own website (jonathonbray.com) and marketing messages, simply because that’s what the search engines recognise and understand. I feel tainted by association with the C-word. Why do I hate it? ’Compliance’ to me conjures Orwellian images of mindless drones following oppressive rules put in place by a faceless overseer. Secret police in leather trench coats. Covert operatives hiding in the shadows, eliminating those who dare to do things differently.

I usually prefer to talk about ‘Risk Management’ with our clients rather than the C-word. Risk Management is much more about taking ownership of professional duties and embedding them in systems and cultures. It is proactive, and gives firms a greater feeling of freedom. It is definitely more positive. But even ‘Risk Management’ sounds a little grey and uninspiring, doesn’t it? We need a new word! Any ideas? Tweet me @Jonathon_Bray Jonathon Bray is a former solicitor and now helps small firms outsource their C-word. He is also a recognised ABS specialist. www.jonathonbray.com By Jonathan Bray

To me it represents inflexibility. It is finding the reasons in the rules why we cannot do what we want to do. It is ‘the tail wagging the dog'. It is entirely negative. For me, that’s part of the reason I think that so many solicitors roll their eyes when the regulator (and us consultants) waffle on about the C-word. There is very often no love, no desire to take it as seriously as it should be. It’s something imposed, not internalised. But the reality, for solicitors at least, should be something much different. We all know that Outcomes focused regulation is intended to get away from traditional rules. Prescription is (at least in theory) replaced with flexibility. Firms can decide how best to achieve the high level principles and outcomes contained in the ‘rulebook’. At its heart, OFR is meant to be positive! Yes, there is a trade-off in terms of certainty, but for the first time in a generation, lawyers are free to interpret regulation and make it fit around their own business. To demonstrate and justify how they achieve the principles and outcomes. To innovate and boldly go… And the 2011 experiment is being extended. To many, OFR was an unfinished and hurried project. The Code of Conduct still contains outcomes that look suspiciously like rules. The Accounts Rules can still trip you up every day for the most minor infringements. As for the rest of the Handbook, it is entirely inaccessible. Nobody has read it. The SRA is in the process of re-drafting the entire Handbook, reducing it from over 400 pages to a mere 50 pages (hooray!), resulting in a Code of Conduct of just 10 pages (double hooray!). OFR is here to stay and it’s time we start putting a positive spin on this stuff.

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Risk & Compliance

Consumer Credit and CPDThe New Compliance Regimes 2016 sees two important new issues for solicitor to consider in their compliance with the SRA’s rules. The final resolution of the long running consumer credit issue and the need for all firms to transition to the new CPD structure.

CONSUMER CREDIT The changes to consumer credit have resulted from the ending of the blanket approval previously granted to the Law Society. The SRA had a temporary exemption while they decided how to proceed. Initially it looked as though the SRA would decline to regulate solicitors at all for consumer credit work, leaving all firms who needed to offer credit to seek direct permission from the FCA. In the end, however, pressure and good sense has prevailed and the SRA has decided to offer a form of regulation. In the meantime the legal position has changed as well and the rules around short instalment credit have been relaxed slightly. This form of credit has always been exempt from regulation. This means that any credit arrangements which: • Are agreed before the debt is incurred; • Are for not more than 12 months; • Involve 12 or less repayments; • Are for a fixed sum; • Are for our services; • Involve no charge or interest at all; and • Are not secured on land. Will be outside the ambit of consumer credit. However, the view of the SRA is that this exemption only applies where the credit is agreed prior to the debt falling due. Therefore, where a bill has already been rendered and payment by instalments is then offered this exemption will not apply. It would be sensible therefore for firms to ensure that where they might be prepared to offer instalments that they ensure this is discussed in advance with the client.

A further relaxation has been created for legal work which only tangentially involves credit. This includes debt advice work and the pursuance of consumer credit debt. Where the above exemptions do not apply or the firm wants to offer a more complete credit option with fees or interest being charged then they will need to take charge of the Exempt Professional Firms regime. This is the system which has caused so much consternation as it must be regulated by the SRA under licence from the FCA. The SRA has taken this responsibility on and the regime is not in place. There is no substantial addition to the rulebook but the SRA has issued guidance highlighting how the already existing key outcomes and principles link to the consumer credit regime and how they might be complied with. Key things that need to be done to ensure that compliance is being achieved is for the solicitor to: • Ensure the client understands the arrangement and its consequences for them; • Consider the appropriateness of the arrangement proposed for our client; • Provide the client with sufficient information to allow them to assess and understand the arrangement themselves; • Assess the credit worthiness and ability to pay of the client; • Monitor the arrangement throughout its lifetime. This will require a short statement of the client’s needs, a consideration of other arrangements, a clear statement of the credit deal on offer, a process to assess the ability of the client to fund the arrangement, and ongoing monitoring to make sure that they are paying on time and have no further problems.

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CPD CHANGES

Lawyers have long been familiar with the need to do 16 hours of CPD courses each year. One of the weaknesses of this system has been that in some case the training being done is not particularly relevant to the individual lawyer’s practice and the drive to do the set number of hours becomes more important than actually obtaining relevant updates and extending knowledge. The new regime has no specific number of hours and no requirement that training be obtained from approved providers. From the CPD year beginning in November 2016 all lawyers must self-assess against the range of basic competencies set down by the SRA and their individual practice needs. They must then undertake appropriate training to fill identified gaps. In theory, therefore, a lawyer who knew everything necessary for their work area, was totally up to date, and had no skill shortages could do no training at all and meet the requirements. Such a lawyer, however, is likely to be very rare. More realistically, a senior conveyancer who had kept up to date and had all the necessary skills might only need a half day of legal updating.

28 Clapham The Clapham Omnibus The Omnibus 28

By contrast a junior litigator might need to carry out 30-40 hours of training in CPR updates, specific legal areas, and core skills. The need will depend entirely on the individual and their requirements. By the same token, simply continuing to do 16 hours of training will not be acceptable because there will have been no assessment of training need and the 16 hours carried out may not be suitable. While there will not be any specific checks made all solicitor must make a declaration that they have carried out an assessment each year and fulfilled its findings. If you come to the attention of the SRA for some other reason they have made clear that they will be looking at training records as part of any other investigation. n By David Smith, Partner and Head of Compliance at Anthony Gold

Risk & Compliance

Being Authorised by the FCA You’re authorised! What next? Nicola Crump of Signature Compliance gives an overview of what it means to be a newly authorised firm operating in the consumer credit market and provides guidance on what firms should be focussing on in respect of evidencing their compliance. Responsibility for regulating the consumer credit sector transferred to the Financial Conduct Authority (FCA) from the Office of Fair Trading (OFT) in April 2014. In the Financial Conduct Authority’s Data Bulletin Supplement in April 2016 it is noted that by the end of December 2015, 32,070 firms had applied for authorisation, this figure includes both new applications and firms with interim permission who were previously licenced by the OFT. According to the FCA’s data, by the end of December 2015 27,093 applications were determined with 95% of these resulting in a firm being authorised (25,645 applications were approved, 40 applications were refused and 1,408 were withdrawn by firms). For those firms who embarked upon the application process having interim permission, they will have noticed already the difference between the OFT and FCA, with the FCA having a broader range of powers and more resources than the OFT. The FCA’s application process, particularly for ‘full permission’ is lengthy, complex and demonstrates the regulator’s appetite for firms to adequately demonstrate its ability and willingness to meet the Handbook rules, including but not limited to the high-level principles and the threshold conditions.

Management information should, together with a suitable compliance monitoring plan, serve as a key control tool against which the firm’s systems can be assessed. More specifically analysis of this information will help firms evidence that it is delivering the right outcomes for consumers. Firms may use a TCF dashboard as part of their periodic management or board meetings to review relevant management information. However, where firms do review such information, firms should ensure that any actions raised are recorded and tracked through to action. The FCA is not likely to be satisfied that a firm’s systems and controls are adequate unless those systems and controls provide for the proper implementation resulting actions and a procedure for documenting the same.

A firm should use its risk register to drive its compliance monitoring plan, focusing on the higher risk areas such as: new business/sales, complaint handling, creditworthiness it is important for and affordability assessments and collecting payments every firm to revisit in arrears. A robust monitoring framework should its Regulatory Business consist of three lines of defence: with a check, a check Plan to ensure any on the checker and finally someone ensuring the check changes since the date on the checker was properly undertaken.

of application have

Once authorised, firms will also have to meet the FCA’s For those 25,000 plus firms now authorised, what is been noted and the regulatory requirements on Approved Persons, regulatory impact next? Firms would certainly be foolish to think that controllers of the firm, regulatory sales reporting and once they are authorised, the focus upon considered. complaints reporting. For debt management firms there compliance within their firm should in any way are additional requirements relating to prudential resources lessen. In fact, this is when the hard work begins. First, it is important and client money. for every firm to revisit its Regulatory Business Plan to ensure any Further, following authorisation, the FCA will undertake ‘Supervision’ changes since the date of application have been noted and the regulatory impact considered. Firms should also continue to develop of firms which is based around three pillars of activity: their compliance framework, ensuring they have adequate systems • Pillar 1 – Proactive firm supervision and controls in place which accurately reflect the nature, scale and • Pillar 2 – Event-driven, reactive supervision complexity of the firm’s business model and the risk the regulated activity may pose to consumers. • Pillar 3 – Issues and products supervision (known as ‘thematic’ work) In so doing, firms should scrutinise systems and review their compliance policies, compliance procedures and staff training to Regulatory compliance can be overwhelming for some firms, ensure their compliance framework is fit for purpose and that firms’ but with a clear plan in place, an embedded commitment to treating systems and controls more generally are adequate and appropriate. customer’s fairly and documentary evidence of compliance through Risk assessments and risk registers often serve as helpful tools systems and controls, firms should be able to operate which can assist in the identification, monitoring and assessment of compliantly and competently within the the firm’s systems and controls. FCA’s regulatory space. n Ordinarily, those operating in the consumer credit sector should have key policies in place, which, subject to the business model and type By Nicola Crump, of regulated activity, will include: Data Protection, Responsible Signature Compliance Lending, Creditworthiness and Affordability, Collection of Payments, Privacy and Data Sharing, Financial Crime, Vulnerable Customers, Whistleblowing, Complaint Handling, TCF and Financial Promotions.

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Management

Partners behaving badly – why tolerating bad behaviour can spell disaster One of the perennial problems in law firms is not the difficulty of identifying bad behaviour (it is usually there for all to see), but how to best approach the problem with a view to finding a solution. ‘Bad behaviour’ can come in many shapes and sizes. These are just a few examples of bad behaviour I have recently come across - There is the partner who says “you can’t manage me because I am a big biller!” - Then there is the partner who says “That’s a great idea – for the rest of you!” - Or the partner who says “If it doesn’t suit me, then I am not going to agree to it” - And then there are partners who, pursuing their own agendas, deliberately destroy relationships with other partners or staff and cause tension and strife within a firm. - The partner who is bullying staff (also a serious risk issue). Behaviours such as those above often reflect a lack of ‘partner accountability’ whereby some partners put their own selfish interests ahead of the interests of the firm. This is seen most often in firms where there are partners who have still not agreed to be managed. Whenever problems of this nature exist, the cascading and destructive effects on a firm and those in the firm, can spell disaster. Not only is a firm likely to suffer financially, but there is also likely to be a cost to a firm in terms of loss of morale, resulting in good partners and staff leaving and involving a great deal of wasted management time and effort. Bad behaviour and attitudes are usually more insidious and difficult to deal with than underperformance by partners, and where partners have worked together for many years it can be difficult for those managing a firm to resolve such issues. This can, and often does, cause instability, as well as stress to those who are trying to manage the firm. Knowing how to deal with such issues effectively can be difficult. However, to do nothing should not be an option. Managing partners can often feel frustrated when faced with these problems because they may be unable to resolve matters for a number of reasons: - Personal relationships may get in the way; - Many partners when faced with losing the turnover of a ‘big biller’ will not agree to take action. (However the trick is often to focus on the partner’s ‘profitability’ which will often tell a very different story from that indicated by personal billings,); - The inability to provide evidence to others that the problem exists may mean that some partners are not persuaded of the need for action; - Management’s agenda may be suspect in the eyes of some. - Other partners may not be prepared to see colleagues challenged by management on the basis that ‘we may be next’; - The inability to see beyond the immediate problem so as to arrive at a solution in the interests of all concerned; - Insecurity on the part of a managing partner may prevent taking action against those who are deliberately ‘bucking the system’. There is no silver bullet which can solve every problem involving partner behaviour. Each situation is likely to require its own techniques to be applied to arrive at a solution, and it is never going to be easy. It can however be particularly dangerous for a managing partner if other partners, who want action taken, perceive that he or she does not have an answer to a problem. If a behavioural problem appears insoluble to those managing a firm then specialist help from outside, such as from a psychologist, may be needed and, for the sake of the firm, there should be no reluctance on the part of management to enlist such help. Sometimes it is best not to attempt to deal head on with the individual or the problem. Instead, you set out to demonstrate to all concerned that a serious

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problem exists and where that problem lies. A technique adopting this approach which I have found to be particularly effective for resolving problems of partner behaviour involves obtaining on a confidential basis, 360 – degree feedback from all partners (and also from those who report to them) to give an all – round or 360 – degree perspective of behaviour and performance. The exercise will involve all partners (including the problem partner) providing feedback on all other partners and if approached in this way, those managing a firm are less likely to be accused of unfairly picking on and discriminating against an individual. Feedback provided by partners and others is likely to clearly identify behavioural problems and the steps which should be taken to rectify such issues, and is likely to be better received by a partner whose behaviour has fallen below an acceptable standard. Sometimes it is better that the 360 – degree exercise, and in particular the feedback given to an individual, is facilitated by an outside third party who can be seen to be moreobjective and fair. By having an independent external facilitator to administer the 360 – degree feedback process, respondents can also be assured of anonymity. A useful by – product of the exercise is likely to be that not only are other partners assured ‘something is being done to sort out the problem’, but also an improvement in behaviour and performance by those other partners can be achieved, particularly if it can involve a positive and motivational debrief meeting with each of them. Even where 360 – degree feedback may have highlighted significant points for improvement, or to change behaviour, partners should leave the meeting having found the process constructive and feeling motivated. Providing feedback in the manner I suggest above to a ‘badly behaving partner’ will enable the problem to be discussed openly, and from that discussion a solution may be achieved. Partners are sometimes quite unaware of how their behaviour impacts on others and can be shocked when told of this. Some partners on the other hand may have no intention of changing how they behave and a firm will then need to decide how to deal with them. The sense of frustration that can be felt in this type of situation is illustrated by what a partner in one firm said to me; “We have tolerated this disruptive behaviour for too long just because he has a large practice. But there is going to come a day when we say to him ‘Enough is enough – we are not prepared to accept this any longer and so take your practice elsewhere’” And they eventually did and the firm became more cohesive and successful as a result. However, any firm which is facing issues of this kind should also ensure that it first has its governance arrangements (partnership agreement / LLP members’ agreement) in shape to enable it to take whatever effective action is necessary, and should always take the best external advice possible. Bad behaviour can destroy a firm and partners should not flinch from facing up to the issuesand dealing with them because they will not go away and may only get worse. n © PETER SCOTT CONSULTING 2016

Management

DON’T REGRET THAT BUY - TO - LET! As the dust settles on the recent Budget announcements and attention turns to June’s EU Referendum we could be forgiven for being distracted by such important issues and overlooking a significant change in tax legislation stemming from last year’s budget and effective from 6th April 2017. rom next year the rules that allow landlords to offset all of their mortgage interest costs against their tax bill will be changed. When George Osborne announced the changes the implication was that they would hit only higher-earning landlords and it is true that every mortgaged landlord who pays higher or additional rate tax will indeed pay significantly more under the new regime. But some basicrate taxpayers will also pay more tax because the change will force them into the higher-rate bracket. In fact, contrary to the Chancellor’s suggestion, the only buy-to-let investors who will not be hit are those wealthy enough to buy property in cash and with no need for a mortgage.

At the heart of the new rules is landlords’ future inability to deduct their mortgage interest costs from their rental income. In other words, tax will be applied to all of the rent received, rather than what is left of the rent after the mortgage interest has been paid. The following example assumes the landlord is paying tax at the higher rate of 40%.

TODAY The buy-to-let generates income of £25,000 a year and the interestonly mortgage costs £15,000 a year. Tax is due on the difference, or profit, so is payable on £10,000. That means HMRC receives £4,000 and the landlord gets £6,000.

In 2020 Tax is now due on the full rental income of £25,000, less a tax credit equivalent to basic rate tax on the interest. In other words, the landlord pays 40% tax on £25,000 (i.e. £10,000), less the 20% credit (20% of £15,000 being £3,000). This means HMRC now receives £7,000 and the landlord receives £3,000. Put another way, his tax bill has increased by 75% and his net rental income has halved!

SO WHAT ARE THE OPTIONS? All landlords with mortgages need to consider the implications and take professional advice. Options include disposing of the property, although this may crystallise a hefty capital gains tax liability, or, where the property is jointly held, using a declaration of beneficial interest in joint property (HMRC Form 17) to tell the tax office that the landlords want to be taxed on their actual shares of the income rather than on a 50/50 basis. Form 17 says that landlords can use it subject to their being married, holding the property jointly in unequal shares and being entitled to an income split along the same lines. This would suggest that for tax purposes joint landlords might ask to split the rental income on, for example, a 1% / 99% basis. The evidence they must provide when submitting Form 17 to HMRC is either a declaration of trust stating their unequal shares or a copy of the Land Registry entry showing the 99% / 1% split. Assuming that the current split is an equal 50/50 it will be necessary for the landlords’ lawyer to draw up a declaration of trust or change the Land Registry entry before April 2017 when the new rules come into effect. Beware however that if you transfer a property to a spouse there is no automatic stamp duty relief. Because stamp duty is based on “consideration” it is possible to transfer a property to a spouse with no stamp duty land tax being payable. But because “consideration” includes any assumption of liability to pay a mortgage, stamp duty may become payable where there is a mortgage attached to the property and the new owner assumes responsibility for it.

Steven Vallery Business Development Director S4 Financial Limited Contact: 01276 34932 Important Information This article is for general information only and is not intended to be advice to any specific person. You are recommended to seek professional advice before taking or refraining from taking any action on the basis of the contents. The FCA does not regulate tax advice so it is outside the investment protection rules of the Financial Services and Markets Act and the Financial Services Compensation Scheme. This newsletter represents our understanding of law and HMRC practice as at 8th April 2016.

The Clapham Omnibus 31

Property Law

New Drainage Guidance for Lawyers Published Highly respected Drainage Law Barrister highlights important Duty of Care requirements for property and planning lawyers. New guidance is released today for lawyers on drainage requirements for new build developments. Local Authorities are implementing stricter planning controls in favour of more sustainable drainage due, in part, to the challenges presented by climate change The guidance has been prepared by the highly respected barrister and author of “Water and Drainage Law”, John Bates, of Old Square Chambers. Mr. Bates’ guidance note examines how, with the prioritisation now given to Sustainable Drainage Systems (SuDS), lawyers have to do more to satisfy their duty of care to clients. Lawyers need to advise clients how SuDS might impact their development sites and give rise to long-term management responsibilities Mr. Bates advises lawyers that there is a presumption in favour of SuDS for development and that SuDS are the preferred approach to managing surface water runoff, adding: “Lawyers should commission a pre-application SuDS report to ascertain whether SuDS are appropriate or not, because this has important legal repercussions for your client.” Other key points from the Guidance include: • Drainage requirements follow a “hierarchy” of planning approval – and in there is a presumption in favour of SuDS, where appropriate. • SuDS can take up a significant area of a site and have project cost and long-term maintenance impacts that clients need to be alert to.

About John Bates John mainly practices in environmental law, being a former Chairman of the UK Environmental Law Association and one of the first members of the Bar to specialise in the area. He is the author of the leading practitioner book on drainage law, the loose leaf ' Water and Drainage Law' published by Sweet & Maxwell. John’s first book was 'UK Marine Environmental Law' which was followed by 'UK Waste Law'. He is also co-author of 'Liability for Environmental Harm' (along with former members of Old Square Chambers, Charles Pugh and William Birtles). He advises on Town and Country Planning matters and is a member of the Planning and Environment Bar Association. Chambers and Partners quotes John as "highly learned" in the water law field. He recently acted for the Mayor of London over a waste management strategy challenge. A "well-rounded barrister", his areas of expertise also extend to contaminated land, nature conservation issues and nuisance claims - Chambers & Partners 2009

About Old Square Chambers A specialist set with 75 members, including 14 Queen's Counsel, Old Square Chambers provides advocacy, advice and drafting of the highest quality at trial and appellate level

• Lawyers must make reasonable enquiries to determine whether SuDS are an appropriate drainage solution for their client’s site.

Their expertise covers eight areas of law: Employment & Discrimination, Professional Discipline, Personal Injury, Clinical Negligence, Product Liability, Environment, Health & Safety and Public Inquiries.

• The appropriateness of otherwise of SuDS may affect the legal advice given in respect of planning conditions, easements, adoption, maintenance as well as advice relating to insurance cover.

They also have members who specialise in ADR / Mediation within those practice areas. We believe in teamwork and establishing long term working relationships with our clients.

• Lawyers should consult the relevant Local Authority Policies on Sustainable Drainage and seek independent advice from a specialist data provider at pre- and full planning stages.

About GeoSmart Information

The Guidance is available for download at GeoSmart Information’s website :geosmartinfo.co.uk.

Understanding the Guidance – Seminar Announced Recognising the significance of the Guidance, GeoSmart Information is hosting a breakfast seminar for property and planning lawyers at Salters Hall on Thursday 9th June. John Bates, together with environmental lawyers and drainage experts will explain how Authorities are prioritising SuDS within their planning controls, explain the Guidance Note and discuss what this means in practice for lawyers and their clients.

GeoSmart delivers insight on environmental risk and suitability for property development and infrastructure. As our landscape and climate continually changes, we are the smarter choice for legal and property professionals involved in land transactions and for clients who need to build and protect property in a sustainable way. As a sister company of ESI, one of the UK’s leading environmental consultancies, our innovative range of desktop reports, data and services is built on a rich heritage of scientific analysis, which enables smarter, more informed decisions. For more information, please visit www.geosmartinfo.co.uk, email info@geosmartinfo.co.uk or call 01743 276 150. For further editorial information please contact:

More information on the event here.

David Kempster

www.eventbrite.co.uk

Clear Edge Communications 07780 455635 david@clearedgecomms.co.uk

32 Clapham The Clapham Omnibus The Omnibus 32

Probate

Tesco Law is Dead! by Gregory van Dyk Watson, Managing Director of Isokon Limited

Fear of Tesco Law Many lawyers had believed that they would be at risk of losing the bulk of their probate business to a national company, who might invade their marketplace with huge capital investment and a massive media campaign. They referred to this imaginary phenomenon as Tesco Law. The evidence is that this has not manifested itself.

Your reputation is fundamental The competitor is not Tesco Law, nor the online advert offering a cut price service, nor the teenage son who believes he can do the work just as competently at zero cost. Your reputation is fundamental to securing the work, without which your Will Bank can quickly become a wasted resource.

Profitability requires more than knowledge of the law

Requirement is for a probate accounting system

Many law firms regard probate work as a legal matter, as opposed to a process. Clearly an overriding knowledge of the law is fundamental to estate administration, but it is insufficient to ensure the profitability of your probate department.

For the process to be effective, it is axiomatic that a probate accounting system is required to handle the financial details of an estate, where data is entered once only.

Most of us trust the law firm holding dad’s will

Probate/Estate Administration is primarily a process

The facts are that Tesco Law was a chimera. It was never a serious contender for probate work. Most of us will still call our known and trusted law firm when we experience a death in the family. It is after all where Dad’s, Mum’s or Grandad’s will has been safeguarded over the years.

The basics are relatively straightforward prove the will, identify and value the assets and liabilities, assess the tax, collect the money and pay the beneficiaries. Of course, this is a gross oversimplification. But the fact remains that probate work is primarily a process.

The goal is to achieve a 70% Gross Profit Margin

Accounting and Case Management defeat Tesco Law

The real challenge to the law firm is the law firm itself - to deliver a quality service while keeping costs down. On the surface these appear to be divergent objectives. The goal of the modern efficient law firm should be to achieve a Gross Profit Margin (GPM) of 50% at the very least. And ideally closer to 70%. This is being achieved by a number of probate departments.

Competent software consists of an all embracing accounting engine designed to cope with the full variety of assets and liabilities (other than in the most basic estates) together with an integrated case management system with workflows, a calendar of reminder tasks, and a mailmerge facility to extract the data from the accounting database. The two need to work hand in hand with each other. One without the other will not succeed.

Profitability via the efficient use of technology The only way to reach these levels of profitability is through efficient use of technology. Almost all articles about probate estate administration deal with the legal issues, with no regard to the actual organisation of the work - the very area in which your profit or loss is determined.

Consequently estate accounts and IHT forms can be produced with the proverbial click of a mouse. Any firm that is not properly organised around well developed competent software is in competition with itself.

Devolving the work equals profitability This technology will enable you to devolve much of the routine work to the lesser qualified members of the team paralegals and secretaries. Properly trained and supervised, they will be able to input financial data and generate letters and documents. Alternatively, the work can be done just as easily by fee earners without the need for support staff.

It is a tried and tested business model This business model is proven, and it works. And the cost savings are significant. The time saved will enable the more qualified members of the private client team to devote more time to supervision and client care. n

For further information please contact: Gregory van Dyk Watson, Managing Director of Isokon Limited. Email: gregory@isokon.com or call 020 7482 6555. Alternatively visit www.isokon.com Isokon was founded by Gregory van Dyk Watson in 1999. The company has invested 44,000 man hours in development of the product over the last 17 years. Isokon is currently the leading supplier of software for Probate and Private Client work. It is used by 40% of law firms who do private client work. Isokon is used by more than 2,000 individual users for the most complex estates, as well as basic estates. Isokon is based on an accounting database engine with an integrated Isokon case management component.

TheClapham ClaphamOmnibus Omnibus 33 The

Book Review

MARSHALL HALL A Law unto Himself By Sally Smith QC WILDY, SIMMONDS & HILL PUBLISHING www.wildy.com

A COMPASSIONATE MAN WHO WILL REMAIN MOST SPECIAL TO ALL ADVOCATES AND TO THE GENERAL PUBLIC An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This important biography is a book about yesterday for today’s readers before everything changes with the way we do our legal business. It’s quite possible that the art of the advocate will be modified again very rapidly in the twenty-first century as we see the creation of new ways to resolve disputes with emphasis on the written word and online decisions. However, Sir Edward Marshall Hall will always remain top of the advocate’s tree as a man who fitted into a particular part of our more recent legal history during that winding down period of what was a particularly brutal and insensitive judicial past. Sally Smith QC gives us the twenty-first century view of an Edwardian barrister following on the seminal work from Edward Marjoribanks which people of my vintage read If he was as part of our legal studies decades ago. Counsel today are not (thankfully) viewed in the same way as they were in the early 20th century. The Bar has rightly moved away from its heavy newspaper emphasis on “celebrity lawyers” in a different media age although we do have a few contemporary contenders whom we all know and love!

Fortunately, we can decline the services, generally, of a modern day Marshall because the sanctions are all most moderate in comparison with his time yet the crimes were just as gruesome. There’s something about a capital trial which is always going to be different and the nearest we get to it today here is the death sentence passed on a pet (non-human) unless one has actually represented parties in capital proceedings abroad.

One can reflect, when reading Sally’s exceptionally crafted account of Marshall’s life, why he was the way he was irrespective of the outcome of his cases and those clients who nothing lied to him: it has happened to all of us, of course.

else, Marshall lives as a man with a warning about how we should do things in our forensic world...

The bitchiness and downright hostility and grudge-holding which permeated the Bar of the past are well documented in this thoughtful and well-constructed new biography. Smith has not been constrained by sycophancy which has been the problem of so many biographies when the subject has recently passed on. So we have a reasoned and meticulous analysis for 2016. That is not to say that Marjoribanks produced a work with only the good points covered because he did not so his work should always be read for the excellent points of advocacy and speech detail covered in 1930s. He had to leave certain matters out which were and remain common knowledge about Marshall within the Bar and made him the man he was. We now have a better picture of Marshall the man thanks to Sally Smith. I am sure most judges are delighted not to have to sit through a modern day Marshall Hall, if she or he could ever exist now. It’s highly unlikely as they would probably be disbarred if not sent to Coventry pretty quickly if they tried some of the splendid devices Marshall used (which still work, actually, but be very, very careful). Not everyone can be such a good advocate because one cannot, as Marshall’s life shows, learn such an attribute or facility: it has to

The Clapham Omnibus 34

be experienced. Yes, experience does count but the very frailty and vulnerability of the human condition makes the successful advocate that very special person who was needed at a time of judicial homicide and massive public interest in capital trials.

There is always a bit of Marshall Hall in all of us as advocates even today when we are heavily constrained by what we say and do. The recommendation is that all budding advocates should ensure they read this new well-researched version of Marshall’s life afresh, especially trainee lawyers at any level.

If he was nothing else, Marshall lives as a man with a warning about how we should do things in our forensic world: with care, meticulous planning and checking, relevant specific expertise and a special flamboyance so often sneered at by some both then and now… but it does work! And this book also works for modern Counsel today and should be compulsory reading for all lawyers and general readers for the future. Final words are left to Smith at the end of the 19 chapters when she writes that “Marshall was the ultimate exponent of total advocacy: he lived his entire life as though the world was one huge courtroom and its inhabitants a universal jury to beguile. He cared little or nothing for the restraints of his profession, or for the discipline of the law; be he introduced the concept of compassion into a legal system in which it was lacking, was universally adored and trusted by those whom that system is meant to serve, made speeches of such extraordinary power that they have lived on for more than a century and, more important of all, saved many lives. No other lawyer could claim that.” Absolutely!

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