Bill of Middlesex November 2017

November 2017

The BILL of

Middlesex Official journal of the Middlesex Law Society

Paresh Raja Bridging and buy-to-let: (See Page 23)

Inside this issue:

■ Brexit ■ Property ■ Forensics ■ Legacies

t s f er o te nv ge uo Co era r q n av ou ctio an of y stru % in 70 t o

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

Contents

22

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ADVERTISING AND FEATURES EDITOR Anna Woodhams

DESIGN AND PRODUCTION MANAGER John Barry

ACCOUNTS DIRECTOR Joanne Casey

23

MEDIA No. 1512

EDITOR Sundeep Bhatia

7

PUBLISHED November 2017 - © Bill of Middlesex Benham Publishing

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.

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DISCLAIMER The Middlesex 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.

32

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

COVER INFORMATION The cover image: Parash Raja CEO Market Financial Solutions

Copy Deadlines March 21rd March 2018 March 28th September 2018 Anyone wishing to advertise or submit editorial for publication in the Bill of Middlesex please contact Anna Woodhams, before copy deadline.

Email: anna@benhampublishing.com Tel: 0151 236 4141

5 7 8 16 18 21 23 24

INTRODUCTION EDITOR’S COLUMN NEWS COUNCIL MEMBERS PROBATE ARTICLE PROPERTY ANTI-MONEY LAUNDERING 26 LEGACIES 28 FORENSICS 29 GROUND RENT

29 31 32 32

CONVEYANCING WILLS & PROBATE EXPERT WITNESS MEDICAL LEGAL EXPERT 34 BOOK REVIEW The Bill of Middlesex 3

officers COMMITTEE MEMBERS

PAST PRESIDENTS R Garrod, J A S Nicholls, R C Politeyan, J Aylett,

Past President

OFFICERS FOR 2016/17 President:

Gurmeet Kharaud

D Grove, L A Darke, C Beety, Mrs L E Vickers, H Hodge,

Fort & Co. Solicitors

E G B Taylor, A A M Wheatley, A H Kurtz, M J S Doran,

Saunders House, 52-53 The Mall, Ealing W5 3TA

H B Matthissen, G Parkinson, HHJ R D Connor,

(020 170 8433) (DX 5119 Ealing)

A Bates, J J Copeman-Hill, D B Kennett-Brown,

e-mail: gk@fortsolicitors.com

ARIYA SRIHARAN Sriharans Solicitors 223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3) e-mail: info@sriharanssolicitors.co.uk

Sundeep Bhatia of

W J C Berry, AS Atchison, L M Oliver,

Beaumonde Law Practice

S W Booth, D D P Debidin, R E J Hansom, E H Lock,

Pentax House, South Hill Avenue, Northolt Road, Harrow Middlesex HA2 0DU (020 8868 1614)

MAURICE GUYER

e-mail: sundeep.bhatia@beaumonde-law.co.uk

e-mail: mguyer@vickers-solicitors.co.uk

Honorary Treasurer: ELISABETH VAN DER WEIT

Mrs A Taylor, Mrs N Desor, Ms M Hutchinson, M Guyer, R S Drepaul, A Sriharan, Ms M Fernandes A Darlington, S Chhokar, Ms M Crowley, Professor M Davies,S Hobbs, Mrs R Sriharan, Mrs S Scott Hunt, D Webb, G Kharaud

Vickers & Co. 183 Uxbridge Road, Ealing W13 9AA

S B Hammett, Miss F A Shakespear, HHJ P E Copley, A M Harvey, H R Hodge, G R Stephenson, B S Regler,

Honorary Secretary

(020 8579 2559) (DX 5104 Ealing)

K Goodacre, H J B Cockshutt, W Gillham, L Lane Heardman,

Professor Malcolm Davies Head of Ealing Law School

PARLIAMENTARY LIAISON

University of West London

Michael Garson

St. Marys Road, Ealing W 5RF (020 8231 2226) e-mail: malcolm.davies@tvu.ac.uk

Hameed & Co. 4 Grand Parade, Forty Avenue, Wembley Park, HA9 9JS

Maria Fernandes of Fernandes Vaz Solicitors

(020 8904 4900)

87 Wembley Hill Road, Wembley Middx HA9 8BU

e-mail: hameed@hameed.plus.com

(020 873 30123) e-mail: info@fernandesvaz.com

Honorary Social Secretary: DAVE. P. DEBIDIN Debidins Solicitors 47 Mount Park Road, Ealing W5 2RS (020 8567 1381/6343) (DX 5105 Ealing) e-mail: info@debidins.co.uk

Stephen Hodgson Lecturer in Law, Ealing Law School University of West London St Marys Road, Ealing W5 5RF (020 8231 2406)

Honorary Membership Secretary:

e-mail: stephen.hodgson@uwl.ac.uk

SUSAN SCOTT-HUNT Principal Lecturer in Law, Middlesex University The Burroughs, Hendon NW4 4BT

Maralyn Hutchinson of Kagan Moss 22 The Causeway, Teddington, Middx TW11 0HF

(020 8411 6019) e-mail: s.scott-hunt@mdx.ac.uk

(020 8977 6633) (DX 35250 Teddington) e-mail: maralyn.hutchinson@kaganmoss.co.uk

Council Members for the Middlesex Area: Central & South Middlesex

Zulfiqar Ali Meerza of Serious Fraud Office (SFO)

Michael Garson of

2 – 4 Cockspur Street, London SW17 5BS

Kagan Moss

(020 7084 4890)

22 The Causeway, Teddington TW11 0HF

e-mail: zulfiqar.meerza@sfo.gsi.gov.uk

(020 8977 6633) (DX 35250 Teddington) e-mail: michael.garson@kaganmoss.co.uk

North Middlesex Michael Singleton of Singletons Austin Ryder

Miles Sriharan of Sriharans Solicitors 223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3) e-mail: miles.sriharan@sriharanssolicitors.co.uk

2 Crossfield Chambers, Gladbeck Way, Enfield EN2 7HT (020 8367 0387) (DX 90604 Enfield)

Renuka Sriharan of Sriharans

e-mail: michael.singleton@singletonsuk.com

223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3)

Mark Hudson

e-mail: info@sriharanssolicitors.co.uk

Regional Manager, The Law Society Greater London Regional Office, The Law Society,

Alberta Tevie of Sriharans Solicitors

113 Chancery Lane, London WC2A 1PL

223 The Broadway, Southall UB1 1ND

(020 7316 5554) (DX 56 London/Chancery Lane)

(020 8843 9974) (DX 119583 Southall 3)

e-mail: mark.hudson@lawsociety.org.uk

e-mail: albertaot@gmail.com

4 The Bill of Middlesex

www.middlesex-law.co.uk

introduction

President’s Review There is no news without the word “Brexit” since 24th June 2016. The same situation prevails in legal journals including the Law Society Gazette.

Due to the artificial hype, businesses and the economy are in an uncertain mode. Our legal profession is not an exception to this scenario.

Article 50 has been triggered and now the EU notification of (Withdrawal) Act 2017 has also been passed in Parliament. I would like to make a few points to restore certainty and peace of mind to the legal profession.

SRA statistics indicate that there are 139,638.00 actively practising Solicitors in England and Wales. I wonder whether even 10% of this number of Solicitors are practising in the European Union or remaining in England and Wales and generating any income from European Union work.

East, Britain has an established brand name in law for over 300 years. All the non-EU countries are, I will say, keen to have dealings and to do business with Great Britain. We may not win the Eurovision contest but we will win a popularity referendum if it is held outside the EU. This situation will not only be positive and encouraging to Britain but the Legal Profession will enjoy prosperity and expansion in all the other countries including the Commonwealth. We can expand our practises and negotiate legal and court rights to expand our horizon.

As the President of the Middlesex Law Society, if I confine the In my opinion, we have to closely examine whether our Brussels analysis to the members of our local Law Society, we can create office is still needed. If needed, then at what cost? The Law opportunity and contact in the Commonwealth jurisdictions and Society is there to protect and serve our members using the expand our practice if we are geared up to do that. Therefore, income generated from our Practising Certificates. If only 10% of members of the Middlesex Law Society can only hope for a better our members are benefitting from the existence of the Brussels outcome, and should not feel doom and gloom. office, then do 100% of the Profession have to have to finance this luxury? The work of the Brussels We may not win Doom and gloom is only created by the media who are blowing the trumpet of those who wish to remain in the office of the Law Society is defined as follows: the Eurovision EU Whether we like it or not, Brexit will not be reversed.

• It raises awareness of EU law and of contest but we Therefore, we have to treat this as a new opportunity opportunities in Europe amongst solicitors will win a and have to get on with it. The British are good at this.

• It monitors developments in EU law to ensure that popularity I was proud to read and hear when Mr David Davis said they are compatible with the UK legal system referendum if it “we have got good lawyers, they are looking into all the • It promotes UK law and opens new markets is held outside documents line by line and are raising issues on the for solicitors Divorce Bill. The European negotiators cannot stand • It protects solicitors’ practice rights in the EU the EU. it”.

I would like all of you to be proud that we, • It organises general study visits to the EU British solicitors and barristers, are keeping the European hard institutions and tailor-made visits to meet key EU officials bargaining Negotiators on the run. This situation will give British • It offers trainee solicitors a unique opportunity to undertake a solicitors and Barristers good publicity all over the world. six-month secondment in the Brussels Office.

In my opinion, every Practitioner in England and Wales must look at the above objectives and ask whether they have benefitted from any one of the above items, if they have, what percentage of the membership has benefited? This is the question to be raised by every Practitioner based and earning a living in England and Wales.

In my opinion, Brexit or the uncertainty, artificially created by the hype, should not affect the profession very much. In fact, it may benefit it can be translated positively. How? Almost all the Commonwealth jurisdictions have English Law or follow English Law principles or accept binding precedence of English decided cases. The Government is determined to create trade arrangements with countries outside of the EU. Whether these are commonwealth countries such as India, Canada, Australia, New Zealand and others, or even Japan, China and the Middle

I appeal to all our members to be positive and to look out for opportunities to explore new horizons. We overcome them as lawyers.

ARIYA SRIHARAN President, Middlesex Law Society e-mail: sri@sriharanssolicitors.co.uk

The Bill of Middlesex 5

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local news editor’s column

Editor’s Column Welcome to the latest edition of the Bill of Middlesex.

SUNDEEP BHATIA

I

n this issue, Michael Garson takes us through some of the pressing developments in the regulatory field.

This is a fast moving area and the SRA have published its latest consultations regarding their planned handbook reforms and their consultation on publication of price data in response to the Competition Market Authority Report.

The proposals are revolutionary as opposed to evolutionary.

Some of the highlights, if that is the right word, of the handbook reforms consultation are as follows.

Solicitors are to be allowed to act directly as individuals for clients without the need to be a registered sole practitioner or a part of a regulated firm.

Companies are to be allowed to have corporate bodies as Directors.

Solicitors will be allowed to set up practices as soon as they qualify.

Character and suitability of solicitors will now only be assessed at the point of entry to the profession .

Details of the Solicitors Qualifying Exam transitional arrangements have been outlined.

Candidates who started to train before the SQE comes into force , and who complete their training during a transitional period, will be granted a full exemption from the SQE requirements.

Apprentices will not qualify for the exemption and will have to pass all stages of the SQE whenever they started their apprenticeship.

It is proposed to remove the traditional 24 month training contract and to replace it with a 24 month period of Qualifying Work Experience intended to offer more flexibility.

In relation to the price transparency consultation, the proposals are as follows.

Firms will be required to print more detailed price information and to publish information on their regulation status including using logos relating to SRA regulation and access to the compensation fund, on their websites.

This second paper is a response to the Competition Market Authority Report which was published late last year.

That paper required that the regulators should compel law firms to provide more information regarding their costs in order to promote competition.

Solicitors operating in certain areas are to be required to give this detailed price information on their websites as part of an experiment.

The guinea pig areas will be from amongst conveyancing, wills, road traffic, employment tribunals and personal injury.

My own personal feelings , as opposed to those of the Law Society, or the Regulatory Affairs Board, are that the proposals, in both consultations, are designed to diminish what it means to be a solicitor and the hallmarks that make our profession what it is.

Solicitors will, if the proposals are introduced, be working in several different structures with differing levels of regulation, client protection and supervision.

There will be ample scope for confusion as consumers wrestle with all the different permutations.

The SRA also intends to consolidate complaints data.

The idea is, I believe, to open up the market to all sorts of other

businesses in the expectation that prices will drop, due to competition and “unmet need” will be met.

Unmet need is a fallacy.

Poorer service with less regulation and less client protection, is no substitute for a properly funded legal aid system.

The volume of information firms will be required to publish on their websites will involve a great overhaul at great expense.

Information will be made available by the SRA to Price Comparison websites with the spectre of apples being compared to pears if solicitors firms are placed side by side with businesses not regulated by the SRA with , potentially less, or virtually non-existent client protection.

Both consultations will greatly occupy my mind and time as the current chair of the Regulatory Affairs Board.

The consultations are open until 20th December and I would urge all of you to read them and to file your responses.

Elsewhere, in this issue, is an excellent article on the ever present issue of Brexit and, in his column, our esteemed President expresses his own personal views on the Brussels office of the Law Society.

With the greatest of respect, I disagree with his viewpoint.

The Solicitors profession of England and Wales is a broad Church representing many different areas of Legal practice.

Over the last few years, many of you will be aware that the Law Society has taken a lot of time and resources to defend legal aid and those firms providing legal aid.

Yet not all solicitors practice legal aid so should the Law Society stop doing that as well?!

Of course not.

So ten per cent of solicitors, according to the President’s article, practice in European jurisdictions.

The Law Society is right to protect their interests.

Those firms participating in International jurisdictions are a part of our proud profession.

They earn substantial sums of money for the treasury and they pay their practising certificate fees the same as all other members.

They are entitled to representation.

If English and Welsh Lawyers, solicitors and barristers, lose the right to practice in European jurisdictions, then the reputation of this jurisdiction will be diminished which will make it harder to woo international clients.

Brussels will still influence our Laws for several years and the Law Society can help to influence the debate regarding the provision of legal services in a post Brexit world whilst continuing to advise the Government in Brexit negotiations.

This is the last issue of 2017 so may I finish by wishing you all a Merry Christmas and a Happy New Year

SUNDEEP BHATIA Editor of The Bill of Middlesex Law Society Council Member for Ethnic Minorities Chair of the Regulatory Affairs Board of the Law Society Beaumonde Law Practice.

The Bill of Middlesex 7

news

Law Society Council Meeting Law Society Council meeting summary: 14 September 2017 Council report

Support to the profession

Council met for the first meeting of the new 2017-18 'season', with a full agenda, led by Joe Egan as President. Joe took the opportunity to welcome 16 new members to Council.

Council noted the Society’s response to the SRA’s consultation on the solicitors’ qualifying examination highlighting the importance of ensuring that academic and work experience requirements receive proper scrutiny to ensure that standards are maintained. The Society has also published briefing for our members on the implications of the changes to the SRA Handbook. In other areas, the Society has published a quick guide to the new anti-moneylaundering regulations to help members’ understanding and practice, and a new practice note designed to assist solicitors in identifying circumstances which may warrant a refusal to undertake legal aid work

Changes to governance for 2018 The agreed changes to Law Society governance are moving towards implementation in early 2018, and further work has been going on to agree the nomenclature for the new structure, including that the ‘main board’ should be known simply as the Board; and to agree the composition and terms of reference of the Board’s two supporting committees (the Policy and Regulation Committee and the Membership and Operations Committee). The role of Board Chair is now being advertised. Work is also continuing on the shape and composition of Council itself with a view to bringing forward proposals later this year.

Law Society – culture and business planning Following discussions at Council in July, there were further discussions at the September meeting, focusing on the development of a common understanding about why culture is important and how our behaviour impacts on shaping our culture, and on the development of a culture code for the organisation building on the pride and passion of Council, boards, members, and staff. The Society is also working on the business planning process, the outputs from which will come formally to Council in October, focused on the objectives of promoting the profession, attaining influence and impact, developing the membership offer, and securing an efficient and effective business.

Brexit action Council heard reports of the hard work the Society has been doing to help government and promote the interests of the profession and the public as negotiations continue. The Society has five key priorities: continued mutual access for solicitors as between the UK and the EU; continued mutual recognition and enforcement of judgments; continued collaboration in policing, security and criminal justice; the maintenance of legal certainty throughout the withdrawal process; and the continued effective promotion of England and Wales as the jurisdiction of choice. The government published its paper on civil justice co-operation in August, and Council noted that all of the major aspects of the Society’s agenda had been adopted, including the seeking of a new cross-border civil justice agreement, the incorporation into domestic law of the Rome I and Rome II instruments on choice of law, and continuing participation in the Hague and Lugano conventions. The importance of a smooth transition was also noted.

Strategic engagement Council noted that we continue to engage with parliament and the judiciary, including delivering valedictory speeches for the outgoing Lord Chief Justice and the President of the Supreme Court. We were also approached by Lord Justice Jackson’s office to host the launch of his report on fixed recoverable costs.

8 The Bill of Middlesex

Supporting the profession internationally Council noted that the Vice President, Christina Blacklaws, had chaired a round-table on the international programme on women and the law which attracted 20 women solicitors from law firms and academia. The Society has also successfully secured a UK government prosperity fund bid for a project to support members’ access to the South Korean market, and hosted a Carey Street dinner with members working in China, which was attended by Lord Keen and other distinguished guests. More broadly, the Society attended the International Bar Association investing in Africa conference, and has hosted a party of Kazakh judges as part of the Kazakhstan judicial training programme.

news

Law Society Council Meeting Law Society Council meeting summary: 26 October 2017 Council report

International engagement

Council met for the second meeting of the new 2017-18 'season', with another full agenda.

Council noted a wide range of events as part of the Society’s ongoing programme of international engagement. This included a round-table discussion on legal regulation followed by a formal dinner for bar leaders and guests from the CIS region attending the Opening of the Legal Year, to strengthen our relationships and explore areas for future collaboration. The Society also finalised the Kazakh judicial training programme, organised a panel discussion on doing legal business with China that was attended

by English, Welsh and Chinese lawyers, and signed a memorandum of understanding with the Law Society of Hong Kong. At the Opening of the Legal Year we also signed memoranda of understanding with Iran and Kyrgyzstan.

Changes to governance for 2018 Council was updated on the progress still under way to implement the Law Society Board and its two main supporting committees (Policy and Regulation Committee, and Membership and Operations Committee) in early 2018. Council was informed that the advertisement for the role of Board Chair had closed on 15 October with a strong field of interested candidates; with final interviews planned for late November it is hoped to appoint the successful candidate at the December Council meeting. Other external recruitment is getting under way, and planning is also in hand for the election process among Council member for some places on the Board and committees. Council is also turning its mind to issues about the composition and representativeness of Council itself though proposals in those areas are still at a very early stage.

Business plan and budget Following discussions at Council in July and September, Council in October signed off the Law Society’s business plan and budget for 2017-18. The business plan recognises the difficult and unpredictable times that lie ahead, including the increasingly challenging market for many of our members, and uncertainties around Brexit and the impact of technology. It also focuses on the need for internal changes if the Law Society is to become a genuinely member-focused organisation as we aim to be. In that context, we have, as well as the one-year plan for the coming year, developed a five-year corporate plan with a clear vision and purpose, to be the voice of solicitors, driving excellence in the profession and safeguarding the rule of law. As well as the Law Society budget, the SRA budget also came to October Council, as approved by the SRA Board and the Business and Oversight Board. This, too, was signed off by Council.

Support to the profession Following extensive lobbying by the Law Society and others, HMCTS announced that the flexible operating hours pilot would be put on hold until February 2018 to allow further engagement with court users and to carry out another tender exercise to choose an independent evaluator. The Society also responded to the SRA’s consultation on its draft corporate strategy, making points that included the need to demonstrate a clear case for change before introducing regulatory changes and the importance of focusing not only a speed but also quality of decision making. Council noted that the Society had published guidance for the profession on the new 2017 Money Laundering Regulations and on compliance with Part 3 of the Criminal Finances Act 2017, as well a note prepared jointly with HM Land Registry on property registration fraud.

Political party conferences 2017 Council heard reports of the extensive activity undertaken by the Society to engage with key political stakeholders during the party conference season. The Society hosted a number of events on Brexit and access to justice, sharing platforms with leading figures including the Lord Chancellor, the Justice Minister, and the Solicitor General as well as a number of shadow spokespeople.

This provided a platform for the Justice Ministerial team to make important announcements on justice and Brexit. In setting out his priorities at our event held at the Conservative Party conference, the Lord Chancellor emphasises continued market access and civil justice co-operation post-Brexit, together with the ongoing programme of criminal justice and court and tribunal reform. We had supportive interventions from opposition parties also, including praise for our legal aid deserts campaign from the Shadow Lord Chancellor.

The Bill of Middlesex 9

news

Coffee, Codes and change: regulation breakfast These Handbook changes just don't make sense. I would be very cautious about publishing my prices online.

These were just some of the points mentioned by attendees at a recent Law Society breakfast that focused on regulatory issues facing the profession.

drive for transparency in December 2016. He also set out what the consultation would cover, and the bulk of the discussion was naturally about publishing price information online.

The morning focused on three issues: the upcoming overhaul of the SRA Handbook, the drive for greater price and service transparency, and changes to the routes for qualification and entry to the profession.

Attendees were concerned about how to publish an accurate and meaningful price on a website, given prices can be vary so much given a client's circumstances and legal issues. Even with more transactional services like conveyancing and wills, doing this without talking to the client can be difficult. The Law Society has warned the SRA that any changes must be helpful and not misleading to clients.

Joe Egan, Law Society President, and Mark Hudson, Head of Relationship Management for London and South East, welcomed everyone and set the scene for the event, held in response to members’ interest in understanding the work of The Law Society’s Regulatory Affairs Unit, the major issues on the horizon and how they can get involved..

"The Regulatory Affairs Unit does a lot of work on behalf of members - gathering views, lobbying the SRA, and building coalitions across the sector to fight for solicitors. But I don't know whether the team itself is that visible so we hoped this event would both raise the team's profile and keep members up to date on developments," said Sophia Adams-Bhatti, director of legal and regulatory policy. She introduced the team before they dived into the big issues.

Overhauling the SRA Handbook The single biggest change facing the profession is probably the SRA's overhaul of the Handbook. Marzena Lipman, a policy adviser in the regulatory affairs team, outlined the key changes and some of the implications and that further consultation will be coming in autumn on the second phase of reforms.

Attendees were concerned about the splitting of the current Code of Conduct into two shorter Codes - one for firms and one for individual solicitors. Without Indicative Behaviours and with fewer clear rules, solicitors could face compliance challenges.

A lot of discussion concentrated around the change to allow solicitors to deliver non-reserved activities from unregulated firms.

Will clients be able to tell the difference between solicitors in different types of firms? And would they know they had less protection?

These views echoed the Law Society's concerns which were so forcefully outlined to the SRA last year.

Price and Service Transparency rules The SRA is also consulting on new rules for price and service transparency in autumn.

Michael Lonergan, Policy Adviser, gave an overview of what has happened since the Competition and Markets Authority began the

10 The Bill of Middlesex

There was a strong view that a client care letter can reflect the actual price better rather than a standardised estimate published on a website.

President Joe Egan talked about his own experience. He said his firm publishes fixed prices for wills and divorce services on its website. However he wasn't sure that being this transparent with his firm's prices had necessarily brought in more clients.

The Law Society has produced a Transparency Toolkit to help members.

Education and apprenticeships Changes to the routes to qualification are in train and are due to be launched after further consultations. Chenab Mangat, Regulatory Policy Manager, talked through the upcoming Solicitors Qualifying Examination which will replace the existing routes to qualification from 2020. We noted that it was positive that the SRA had worked constructively to address Law Society concerns in the past.

However we have made the case to there is still a lot of detail to be worked through.

Chenab also encouraged firms to consider taking on apprentices including in non-legal roles such as office managers in law firms.

While many attendees were open to the idea, very few had taken apprentices into their firms, with the main barrier being the time and is some cases the relative cost. Chenab discussed the government's "co-investment" scheme as a way to address this - where a firm pays 10% of the costs of training an apprentice, with the government paying the remaining 90% for small firms - and about the general benefits we've learnt from our case studies for both firms and apprentices.

Do you have any questions or want more information? https://www.lawsociety.org.uk/support-services/riskcompliance/regulation/ regulation@lawsociety.org.uk

news

Point of view Standard of proof in disciplinary proceedings against solicitors The SRA consultation paper titled “The Standard of proof applied by the SDT” poses the question whether allegations made before the SDT against solicitors should be established by proof beyond reasonable doubt or on a balance of probabilities. The current, and indeed long standing, rule is that there must be proof beyond reasonable doubt.

There are several reasons for the adoption of this standard.

1. An adverse finding against a solicitor is likely to have significant consequences for him or her. It may lead to suspension or even disqualification from practising. An allegation of dishonesty is very serious in any event, and it might lead to criminal proceedings against him.

2. It will affect not only him but also his family and his fellow solicitors, especially if he is the principal of a small high street firm.

3. It will affect the reputation of the firm of which he is an employee.

4. Allegations against solicitors are easily made even with a high standard of proof. The lowering of the standard is more than likely to lead to a huge increase in such allegations being made. It cannot be the objective of this exercise to promote such a result. This would require a huge increase of resources to deal with the complaints. If no further funds are available or not enough funds are made available, it begs the question how to prioritise the complaints to investigate 5. Dealing with a complaint is not only stressful to the solicitor concerned but also could be very disruptive to the practice.

6. The main reason why the lower standard is being promoted is that other professions have adopted it. It is a false comparison to make.

7. Solicitors, unlike other professionals, are regularly called upon –indeed required- to pursue unpopular causes for their clients involving claims against the state and its institutions. A solicitor is under a professional obligation to fight for his client’s rights and do so fearlessly. Lawyers, whether they are solicitors or barristers, require the current protection not only for their own sake but for the sake of their clients as well. Reduction of the standard of proof will have a chilling effect on lawyers taking up such cases. Lawyers are frequently called upon to pursue unpopular causes, especially against politically powerful institutions, inviting their displeasure. It will have a chilling effect if the standard is lowered. Solicitors would be inhibited from taking unpopular causes for fear of the consequences flowing from complaints that might be made against them 8. Indeed, it is a fallacy to say that only clients complain. Opponents, too, resort to making complaints against solicitors out of spite or to prevent solicitors from pursuing cases against them.

A solicitor practising in Middlesex (who has asked to remain anonymous).

A solicitor practising in Middlesex (who has asked to remain anonymous).

Dr. Joëlle Grogan. Lecturer in EU Law, Middlesex University School of Law Reports on the Mechanics of the ‘Brexit Repeal Bill’ Late on the night of Monday, 11 September 2017, the European Union (Withdrawal) Bill (informally known as the Repeal Bill), passed its second reading and entered the Committee stage of consideration. Much has been written about the Repeal Bill and much more is likely to be written in the coming weeks and months. In the view of its supporters, it is a bill designed to achieve Brexit, and end the influence of the EU in the UK. However, its detractors have outlined pressing concerns with the current framework of the bill, pointing out that it is likely to represent the most significant shift in legislative power to the executive from the Parliament in history.

The section subject to most pressing debate relates to ‘dealing with deficiencies arising from withdrawal. Uunder Section 7(1), it states that ‘A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate— (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law’. Such regulations as are made under this section ‘may make any provision that could be made by an Act of Parliament.’ In other words, this section gives power to Ministers to make, amend or repeal any law that is considered deficient after Brexit. Conservative estimates for the potential number of changes to the law made by Ministerial Regulation after Brexit lie in the region of 800-1000.

The Bill outlines the sort of issues that a minister can consider to be ‘deficient’. Such deficiencies include (but are not limited to) any failure in the operation of law, and the Minister may make provision for the involvement of EU entities or authorities. (In this context, we might, for instance, identify the European Medicines Agency which regulates safety standards of medicines and drugs in the EU). One of the most deeply concerning aspects of the bill is the estimation in the explanatory notes of the Repeal Bill that the rights of EU citizens could fall within the category of deficiencies to be remedied. The

full extent or scope of provisions to be considered as amounting to deficiencies is ultimately left to the discretion of the Minister.

Limitations on the use of this power to legislate are, themselves, limited.

Ministers may not create new taxes or criminal offences, nor can they repeal the Human Rights Act or Northern Ireland Act. (As a side-note - it is curious that these acts are included, as neither relies on the European Communities Act 1972 for its continued application in the UK post-Brexit.) There is also a sunset clause within the Bill, allowing Ministers to use their Henry VIII power only for two years following the (undetermined) Exit Day. There is, however, no proposed requirement on Government to provide explanation, justification or evaluation of the impact of the changes made to the law through regulations, nor does government action require assessment for impact on rights or on the Rule of Law. Ministers will decide the level of Parliamentary Scrutiny, and in some limited cases, instruments may be made without any draft being laid before Parliament.

Considering the widespread objection to such a broad scope of delegated power, it is unlikely that the section in its current form will continue to be passed as part of a Repeal Act. However, power to change the law quickly to remedy and remove unworkable references will likely still be necessary to adapt quickly to a post-Brexit situation, or to any future Withdrawal Agreement. The question will ultimately be one of balance – between the political expediency of bypassing Parliamentary debate and procedure, and legal certainty, as well as Parliamentary democracy and accountability.

Dr. Joëlle Grogan

The Bill of Middlesex 11

news

Autumn Update from Independent Financial Solutions Market Update As we come to the close of the third quarter of 2017, the UK equity market has experienced a volatile period with a surprise General Election on 8th June and Theresa May failing to win a parliamentary majority for the Conservative Party. Economic data has provided mixed signals of growth in the economy. We now see that Brexit negotiations are underway with pressure on the Government to deliver results.

Equity performance was mixed at both a country and sector level with Emerging Markets and Asia enjoying an increase during the period. Global equity markets have been at near all-time highs over the period and the appetite for risk has remained robust across asset classes. In Europe, equity markets have largely been unchanged in July and unemployment has continued to reduce (currently 9.1%).

Investment Proposition At Independent Financial Solutions, we established a core investment proposition which is referred to as the Sentinel Fund range and has been offered to our clients since May 2008. The Sentinel Fund range consists of five individually managed funds and the overall strategy is overseen by Margetts Fund Management Limited (which has been appointed as the Authorised Corporate Director). Each fund is actively managed by external industry renowned investment managers. Our in-house expert financial advisers together with Margetts Fund Management Limited, form

part of the Investment Committee which meets on a regular basis to review the ongoing performance of the funds and make strategic decisions on the portfolio.

The aim of the Sentinel Funds is to deliver a level of service and management usually reserved for the wealthiest of investors, to all investors. The strategy can be accessed by a range of financial products and can provide a solution to private investors, corporate entities and trustees. We provide an annual review service to investors, which is important to ensure that their portfolios continue to be monitored in accordance with their ongoing requirements. This is increasingly important for trustees when needing to demonstrate they are meeting their responsibilities. The Sentinel fund has recently enjoyed recognition within the industry, I am pleased to report that the Sentinel Universal fund (with its five star defacto rating), has demonstrated an impressive performance track record and has recently achieved a Number 2 ranking in The Consistent 50.

If you should wish to contact one of our expert in house independent financial advisers for further details relating to the Sentinel fund range or any other areas of financial advice, please feel free to contact us on 01243 432430.

As this document contains information relating to investments, you should be aware that returns cannot be guaranteed and the value of any investment can go down as well as up.

Article by Lucy Taylor, Financial Adviser, Independent Financial Solutions

Just a word SRA have issued a warning notice which applies to private and professional conduct (www.sra.org.uk/solicitors/code-ofconduct/guidance/warning-notices/Offensive-communications). The SRA states that it has seen a rise in complaints relating to inappropriate communications, including emails and social media, both in and outside of practice. This follows a number of successful prosecutions at the Solicitors Disciplinary Tribunal.

Recent cases include: • a £25,000 fine after a solicitor admitted comments made on Facebook were “offensive” and “wholly inappropriate” • a rebuke administered to a solicitor for offensive Tweets • fines for three solicitors after they were discovered to have exchanged offensive emails about a colleague • a £15,000 fine for a solicitor who emailed a client using language the SDT said was “despicable”.

Communications made in the course of practice externally as well as inter office emails must not contain statements which are ‘derogatory, harassing, hurtful, puerile, plainly inappropriate, or perceived to be threatening, causing the recipient alarm and distress.’ This clearly goes much further than illegal activity which could be classed as hate crimes. It is subjective and as such it is very wide ranging.

Many of the messages or tweets referred to above were sent late at night or when alcohol had been consumed. What might have appeared humorous at the time may be regarded as offensive and hurtful to the recipient and others. The warning notice makes it clear that not intending to cause offence will not be a defence. Although the warning notice discusses the use of social media it also applies to any other type of correspondence and conversations.

Reference is also made to communication with other law firms and litigants in person and warns against using ‘inflammatory language or

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being gratuitously offensive’ either to the other side or about their client. It warns against crossing normal boundaries particularly in the use of text messages.

Disciplinary action will also be taken against business owners and managers. Compliance officers (COLPs and COFAs) who become aware of such correspondence but do not take appropriate steps to stop the behaviour and follow their own disciplinary policies are at risk.

The SRA warns that misconduct of this type could impact on trainees in that they may not meet the requirements of the Suitability Test and therefore will not be permitted to qualify. Business owners and managers would also be caught by the requirements of the Suitability Test and this affects their annual authorisation.

It now seems prudent for compliance officers to ensure that contractual terms, written policies and disciplinary procedures cover such situations with procedures for enforcement. It is possible that compliance officers could ,depending upon the circumstances, be required to report behaviour as a major non-compliance. It would be sensible to make all employees aware of the warning notice and policies applying to them.

The warning notice points out that even if you have not identified yourself as a solicitor, but you are known as a solicitor, or you can be identified from your photograph, or traced back through a pseudonym, complaints could be made about you to the regulator.

Two of the principles that underpin the Code of Conduct - to act with integrity and to behave in a way that maintains the trust the public place in you in the provision of legal services - need to be considered where the use of social media is so widespread in the modern context.

Preserve your own reputation and that of the profession think before you tweet!

news

Direct work with families in the Family Courts and the Challenge of the 26 weeks Rule.

Local authorities issue proceedings in the family courts, often as a last resort, when they have not been able to effect change and address child protection concerns.

Children have often been on the child protection register for significant periods of time and some have had more than one period of registration. Parents are often resistant to making changes and the reasons for this are usually varied and multi-layered. The local authority will often provide a detailed assessment of the issues and the work undertaken with the family and an interim care plan for the child[ren] involved. There is an accepted model of practice within the family courts marked by specific types of hearings. The initial hearing will deal with any urgent matters such as consideration as to whether a child[ren] should be removed from their parent’s care. The case management hearing that follows considers, amongst other things, any assessments that are required including any expert assessments of the parents. Frequently, little direct work is undertaken with the family whilst these assessments are being completed and matters are put on hold. I would argue that there is more scope, in some cases, for working directly with parents, at an earlier stage, based on the issues identified in the initial social work assessment rather than waiting for all the further assessments to be completed.

Social workers are now considered as experts in the field of child care but the information they provide in initial reports to the court, other than to make immediate decisions about a child[rens] welfare, is generally not used to plan any early intervention work with the parents or carers. If a parent has an addiction issue, or there has been domestic violence, there is often early referral to support services but ,in my experience, there is little in the way of timely direct work with parents to try and improve their understanding and responsiveness to the child’s emotional, social and physical needs which is a central issue in most cases. A parenting course in combination with direct work social work with the parent[s] as well as other relevant interventions may give parents a better chance of demonstrating sufficient change within the 26-week period or provide good evidence that change is not possible within the child[ren]’s timescales. This approach would seem to be more akin to the ethos and practice of the Family Drug and Alcohol Court where early, holistic and intensive intervention is central to the work that they do.

This approach would not be suitable for all cases, for example, where there are significant mental health problems and expert diagnosis and treatment is a priority. But there are many cases such as neglect cases where more holistic and earlier intervention work could be undertaken.

I was recently involved in a case where there were concerns about domestic violence, neglect, inappropriate physical chastisement and cannabis use on the part of the father. The parents had separated but the father was a frequent visitor to the home. The local authority had sought removal. The children remained in the mother’s care subject to a detailed written agreement. Both parents were to be referred to domestic violence programmes. The court ordered a report from an independent social worker [ISW]. There was a very detailed initial social work assessment and chronology which set out a range of child protection concerns and deficits in parenting. A further parenting assessment was ordered but no consideration was given to how the concerns; particularly the parents lack of understanding of the children’s emotional needs, their understanding of the impact of their parenting on the children, appropriate boundary setting and negative and unhelpful thinking about the children. Some

of these issues would overlap with the domestic violence work but I felt that there was a need for separate direct work on these issues that could be undertaken by the social worker during her meetings with the parents and the information gathered used to assess the parent’s ability and willingness to take on board the issues of concern and implement change. What I was advocating was a mixture of educational work and assessment rather than purely assessment. I set out what areas I thought needed to be covered with the parents. There was some reluctance from the social worker to do this and I felt that I was introducing something that was alien to accepted professional practice and the court process although the parent’s representatives agreed that the parents should receive assistance with these issues at an earlier stage. They had suggested possible referral to a parenting programme when the ISW assessment was completed but I felt that this was too little and too late, especially as the children remained at home and I felt it was important that this work start should start as soon as possible to support some of the positive progress that the mother had started to make prior to the commencement of proceedings and to improve the children’s home life. An independent social worker [ISW] was identified to undertake a parenting assessment. The social worker agreed to speak with the ISW before she filed her report to update her regarding her work with the parents and their progress.

Interventions aimed at improving parental emotional care and strengthening attachment can be difficult to access and there are often cost implications which many local authorities are unwilling to meet. The culture of care proceedings also places significant emphasis on assessment. Interventions are undertaken within proceedings and care cases can be extended for up to 8 weeks in exceptional circumstances but there isn’t a strong emphasis on using knowledge that is already available to courts and professionals at the commencement of proceedings to consider interventions at an earlier stage. In my view, there are interventions that can be undertaken that are not costly such as more educational work incorporated into assessments and where appropriate using the opportunity of supervised contact sessions to provide direct child and parent work to enhance the child parent relationships.

Additionally, there is the range of local services that parents can be referred to. In my view, there should be questions asked at an early stage as to what interventions can be put in place and the commencement of proceedings with the aim of addressing some of the identified central concerns rather than wait for further assessments that will often identify the same issues. This may give some parents more chance of achieving change in the expected timescales and especially for children who remain at home during care proceedings this could improve their circumstances significantly.

By William Taylor Children’s Guardian

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news

A Year On, What Happened to the Children of the Calais Jungle?

This October marks the first anniversary of the violent demolition of the Calais ‘Jungle’. I was there in the tense days before the camp’s destruction, and on the day the bulldozers growled in.

My colleagues and I had been sent to the Jungle by our firm, Duncan Lewis Solicitors (DL). With crucial assistance from Social Workers Without Borders (SWWB) and professor and journalist Sue Clayton, we were there to offer advice and support to unaccompanied refugee children in their applications to be relocated to the UK. We listened to their accounts of why they had fled their countries and ended up in the camp. PTSD, self-harming and despair were widespread. The children could not bear to stay in France after what they had experienced at the hands of the police and authorities, they told us, and yearned to come to the UK so that they could start to rebuild their lives.

In May 2016 the ‘Dubs Amendment’ to s.67 of the Immigration Act 2016 had been passed. It requires the government to ‘make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe’.

But nothing changed for the children across the channel in the Calais ‘Jungle’, hungry, cold and alone, risking their lives every night to board lorries to the UK, some returning bruised by police batons, others dying in freezer lorries or crushed by cargo.

On 24 October, demolition day, long queues snaked back in foreboding silence from a hanger in which camp residents were asked about their asylum claims before being dispersed to reception centres across France.

That night fires raged through the camp. Some children were admitted to furnished freight containers, but these soon filled up, and those refused entry were stranded, their tents in flames. Hundreds of children were forced to sleep outside in the seeping coastal cold and many went missing, either fleeing into the surrounding areas, or trafficked into sex work and other forms of exploitation.

“Mission accomplished” proclaimed the regional prefect of Calais, Fabienne Buccio, on 26 October.

We returned to the UK with SWWB and worked around the clock to send the details of our young clients to the Home Office. Surely, we argued, the Dubs Amendment was intended for children such as these?

The government responded with the ‘Calais Eligibility Criteria’, strangling the Dubs Amendment. According to these criteria ‘refugee children’ under the Dubs Amendment refers only to those who are under 12, are at high risk of sexual exploitation, are a Sudanese or Syrian refugee 15 years old or under, or, 18 years old and the sibling of one of a child meeting the above.

Additionally, the child must have been in the Jungle on or before 24 October

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2016 and they must have arrived in Europe before 20 March 2016.

These harsh criteria exclude thousands of children fleeing persecution and war. One after another our clients rang to tell us that their applications had been rejected but they did not know why.

After the Jungle, many of our clients had been taken to inhospitable ‘pop-up’ reception centres across France. Some of our clients have suffered physical abuse in these centres. When DL’s Jamie Bell visited one centre, the préfect (the local government administrator) insisted on being present in his meeting with a client. As Jamie left, the child ran up to him, whispering urgently that it was ‘not good’ there, but that he was too scared to say so in front of the préfect.

After the rejections, many of the children fled these centres, heading to make-shift camps closer to the channel, described as ‘traffickers’ paradises’.

Death rates of children attempting crossings have risen sharply.

We are challenging the rejections by Judicial Review on the basis that the ‘Calais Eligibility Criteria’ and the identification procedures for which children should be relocated to the UK under the Dubs Amendment are unlawful. We also argue that the government should be held accountable for their failure to inform us, the legal representatives, of their decision to reject our clients’ applications, and for not providing the children with written reasons for these rejections. We have seen the internal government decision notes for one of our clients: they amount to a 2 page box-ticking exercise, dismissing his case with the scribble: ‘REJECT: NO FAM’. The litigation is ongoing.

This is not an anniversary to celebrate; it serves as a sharp reminder that many of the children we met are still out in the cold, with winter approaching, denied even the fragile support the Jungle provided before its demolition.

The government intends to relocate no more than 480 such children to the UK under the Dubs Amendment. This makes a mockery of the 3,000 originally voted through the House of Lords.

The previous Immigration Minister, Robert Goodwill, talks of the importance of ‘discouraging [children] from making perilous journeys to Europe alone’.

But thousands have already made this journey and are here, knocking at our door. For the UK government, they are an inconvenient truth.

Patrick Page Senior Caseworker Duncan Lewis Public Law Department

news

Quality street A new quality assurance process has been introduced for Conveyancing Quality Scheme member firms. Atif Ali, head of the CQS technical assessment team, explains the changes The Conveyancing Quality Scheme (CQS) is in its seventh year, with over 3,000 members. Our quality assurance processes have identified a few firms that may pose a risk to the reputation of other members. We looked at how we can improve accreditation to identify these firms and better protect the scheme’s integrity.

Supervision

Intelligence may suggest reasons for a firm being selected for additional assessment. This might include: a pattern of complaints by the public via social media; reports from other firms of persistent non-compliance; or ongoing investigation by the Solicitors Regulation Authority.

In a few firms, some problems could be put down to an absence of specific policies, or the fact that a policy existed but had not been circulated or updated recently. Archiving is a headache for many, but it remains important, and whether physical or online records are kept, they must be capable of identification and kept within an orderly and consistent system.

The assessment takes place in two stages. The first is deskbased. A member of the technical assessment team looks at the way the firm adopts the CQS Protocol and highlights where office procedures do not appear to comply with the norm as accepted by the CQS Technical Panel. Working with the firm, the team builds a picture as to why certain matters are handled in certain ways, and offers feedback as to how the firm can adhere more closely to rules and improve compliance. In some instances, a roundtable meeting is then arranged to discuss issues in more depth.

The second stage, where justified, may be an onsite visit, currently carried out by a serving member of the CQS Technical Panel. The panel comprises five highly experienced conveyancing solicitors from a variety of backgrounds and firms. Visits carried out thus far have highlighted a number of key themes, described below.

Risk management There is clearly a wide divergence of practice in this important matter, as firms adopt differing structures with varying models.

However, whatever system is operating, it needs to be applied rigorously across all conveyancing members of a firm and all client cases.

A key issue is anti-money laundering (AML), in particular identifying the source of funds and the relevant conveyancer on the other side of the transaction. It is imperative that members approach AML with consistency, including through regular training.

File and case management It is important that file review processes are consistent.

Information is now very often located in multiple places and spread across different media within non-integrated or partially integrated systems. Many firms manage hybrid systems – manual or computerised or online in part – and consistent standards should be adopted and applied.

File reviews should be carried out on a regular basis, and additional training organised where procedures or policy are not being followed.

Supervision is difficult to do well; even where firms have a good system, it can easily go wrong, especially when people join or leave, which may give rise to complaints that only surface months later.

Firms must make improvements to prepare for the General Data Protection Regulation, in force from May 2018.

Client care Generally, on the files inspected, client care was good, notwithstanding the strange twists and circumstances clients find themselves in. However, not all firms kept a formalised central register of complaints and undertakings.

CQS firms should have, maintain and enforce proper policies and procedures to ensure compliance with the Core Practice Management Standards (CPMS).

Adherence to the CQS Protocol Some firms were still using a previous version of the Standard Conditions of Sale and adding outdated and unnecessary special conditions that other CQS members then strike down. All CQS firms should be using the fifth edition and only adding conditions as relevant and necessary, or on case-specific client instructions.

We hope that our new two-stage process will ensure that all accredited practices meet the required standards in relation to best practice, client service and practice management, while also seeking to embed a culture of continuous improvement. We will take steps to help firms improve and, if necessary, arrange to visit them. However, where inspection visits are necessary after help has been given, the costs of the increased level of inquiry may need to be addressed.

Persistent failure to adhere to the CPMS will mean that accreditation is withdrawn.

If any CQS firm is unable to resolve issues with another member firm that refuses to cooperate or desist from non-compliant behaviour, please email us at cqs@lawsociety.org.uk.

Atif Ali Head of the Law Society’s Conveyancing Quality Scheme technical assessment team

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council members

Compliance Corner The Beginning of the End A Reform of SRA regulation The SRA remain committed to reforming the Handbook in order to simplify the standards currently set by outcomes and indicative behaviours by means of introducing two new slimmed down codes of conduct – a personal code for solicitors and a separate code for SRA authorised firms.

The personal code will be designed to enable solicitors to offer legal services outside the employment of a regulated firms but limited to undertaking nonreserved activities. This proposal remains highly contentious, and continues to draw opposition, whilst consultation continues on the further changes necessary in relation to financial protection and compulsory insurance arrangements, which are awaited early next year. Other parts of the reform programme, to simplify the Accounts Rules, are set to proceed but without the change to the definition of client money which was widely opposed and has now been modified.

There are, as ever, other developing issues which may further delay the SRA and might yet give rise to some rethinking. The claims management industry has been regulated since 2007 by the Ministry of Justice. In the year 2016/7 there was a reduced number of 1388 Claims Management Companies, (CMC’s) registered with the Ministry of Justice. The Legal Ombudsman, in its first year in charge of adjudication, handled 2478 complaints and investigation cases. The activities of these companies are encouraged because they can improve access to legal services but some operate in ways that would be prohibited to a regulated law firm (e.g. cold calling).

The government has now initiated legislation to transfer regulation of CMCs to the Financial Conduct Authority. This is progressing through Parliament and is contained in the Financial Claims and Guidance Bill. (http://services.parliament.uk/bills/2017-19/financialguidanceandclaims.html).

In recent years, some firms of claims managers have been licensed by the SRA as Alternative Business Structures. Only one solicitor manager is needed for claims managers to be able to apply for authorisation. There is no need to carry out any litigation or other reserved activity as such before such entities can present themselves as being regulated by the SRA. That said, a number of high profile recognised law firms do carry on activities that clearly comprise claims management. The definition being proposed in the new legislation for claims management services includes legal advice activity which means that there is a question as to whether the current exemption for law firms will survive the changes. Otherwise dual regulation becomes a real prospect.

In the draft legislation the definition of a claims management services is “advice or other services (financial services or legal representation or referring or introducing one person to another), in relation to the making of a claim ( for compensation, restitution, repayment or any other remedy or relief in respect of loss or damage) whether or not by way of legal proceedings, whether the claim is made or could be made by way of legal proceedings, in accordance with a scheme of regulation (whether voluntary or compulsory), or in pursuance of a voluntary undertaking.”

The mischiefs that the government wishes to combat are those of high charges and spurious claims. Past experience suggests that the Financial Conduct Authority may require more evidence of compliance than the SRA. As a consequence, it is possible that the activities of a few regulated firms may draw everyone into the burden of satisfying two regulators.

New examples of the underlying cause for concern continue to arise. Perhaps too late in the day, the SRA have issued a warning notice about holiday claims. It reiterates the SRA Code of Conduct requirements that solicitors must make sure any claims they are handling are valid and have been brought in the right way. The Association of British Travel Agents statistics show a 500 percent increase in holiday sickness claims in the last four years. The SRA expresses concerns about the validity of some claims that have been made.

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B Keeping Up The SRA Risk Outlook is a good indication of what the SRA observes from its supervision and enforcement activity and is a measure of where SRA is putting resources to meet its priorities. Whilst there is a degree of horizon scanning, it is inevitable that, all too often, it will be a case of being wise after the event.

Yet, nonetheless, the “Risk Outlook” ensures that a wide audience is made aware of risks.

In the Risk Outlook (ww.sra.org.uk/risk/outlook/risk-outlook-2017-2018.page) there is a troubling example of a new risk of fraudulent Investment Schemes.

SRA accept that ‘the numbers of solicitors who would willingly get involved are very small, but the harm to the public and potentially the reputation of the profession is significant’.

It is therefore useful to be aware that such schemes have involved solicitors • Acting for the promoter • Acting for potential investors • Acting for both • Passing investors’ money through their client account, sometimes as an ‘escrow agent’.

The Accounts Rules do not allow solicitors to provide banking facilities.

Examples are given where a solicitor or law firm has been used to legitimise questionable schemes such as new build property abroad – often described as ‘off-plan’, hotel room leasing or investments car parking spaces and storage units, bank instrument trading, carbon credits or diamond trading.

Whilst the transactions highlighted could be legitimate the examples given in the report are clearly not. The consequences are borne by the entire profession. Hence there will be an increased contribution to the Compensation Fund of £11.1m for 2017/8 which is up from £8.5m in 2016. This means an individual contribution of £40 (2016: £32) and a firm contribution of £778 (2016: £548).

C How many regulators do we need?

Another area where SRA aspirations for deregulation are being overtaken is in relation to financial crime. The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 are now in force. The new obligations cover a range of areas including: o client due diligence o policies, controls and procedures o a central register of beneficial ownership o politically exposed persons o registration of trust and company service providers o criminality testing.

The Law Society interim guidance (www.lawsociety.org.uk/supportservices/risk-compliance/anti-money-laundering/sanctions-high-riskjurisdictions) sets out the types of activity that are at risk for use by criminals in order to deal in the proceeds of crime. client accounts (administered by the legal professional) purchase of real property creation of trusts and companies management of trusts and companies setting up and managing charities administration of deceased estates providing insolvency services providing tax advice

council members preparing powers of attorney engaging in litigation – where the underlying dispute is a sham or the debt.

SRA guidance has not yet been issued and new supervisory arrangements means that a single set of guidelines across all the legal professions will be issued rather than each regulator issuing its own.

The new regulations demand a far greater degree of record keeping so that evidence is available from each firm of risk assessment, policies and controls, records of trusts and beneficial ownerships. There is a requirement for independent audit and what will be required as a minimum in small firms has not been clarified; it could involve considerable new expense. All business relationships affected will be subject to Customer Due Diligence but the thresholds for Enhanced or Simplified Diligence are modified and will need to be methodically carried out and recorded.

The underlying money laundering offences remain unaltered although a new offence been introduced by the Criminal Finances Act 2017 with effect from 30 September 2017. This is the new criminal offence of failure to prevent the criminal facilitation of tax evasion (Law Society Practice Note www.lawsociety.org.uk/Support-services/Advice/Practice-notes/criminalfinances-act-2017).

The European Union Financial Sanctions Regulations 2017, apply to independent legal professionals and require the Office of Financial Sanctions Implementation (OFSI) to be informed of known or suspected financial sanctions breaches.

In drawing up policies firms may draw on their own experience reflecting their own fields of activity. However, the Financial Action Task force report of 2013 (www.legislation.gov.uk/uksi/2017/692) still provides a good framework with its red flags set out below.

Red flag indicators need to be considered in context as the mere presence of an indicator is not itself necessarily a basis for suspicion especially where a client may be able to provide a reasonable explanation. The red flags can assist in applying a risk-based approach to requirements of knowing who the client and the beneficial owners are, understanding the nature and the purpose of the business relationship, and understanding the source of funds being used in a professional relationship.

Where there are a number of indicators then it is more likely that you should have a suspicion and if you failed to ask questions of the client, this may be relevant in assessing conduct in relation to your duties.

RED FLAGS ABOUT THE CLIENT Red flag 1: The client is overly secret or evasive about: • who the client is • who the beneficial owner is • where the money is coming from • why they are doing this transaction this way • what the big picture is.

Red flag 2: The client: • is using an agent or intermediary without good reason • is actively avoiding personal contact without good reason • is reluctant to provide or refuses to provide information, data and documents usually required in order to enable the transaction’s execution • holds or has previously held a public position (political or high-level professional appointment) or has professional or family ties to such an individual and is engaged in unusual private business given the frequency or characteristics involved • provides false or counterfeited documentation • is a business entity which cannot be found on the internet and/or uses an email address with an unusual domain part such as Hotmail, Gmail, Yahoo etc., especially if the client is otherwise secretive or avoids direct contact • is known to have convictions for acquisitive crime, known to be currently under investigation for acquisitive crime or have known connections with criminals • is or is related to or is a known associate of a person listed as being involved or suspected of involvement with terrorist or terrorist financing related activities • shows an unusual familiarity with respect to the ordinary standards provided

for by the law in the matter of satisfactory customer identification, data entries and suspicious transaction reports.

Red flag 3: The parties: • The parties or their representatives (and, where applicable, the real owners or intermediary companies in the chain of ownership of legal entities), are native to, resident in or incorporated in a high-risk country • The parties to the transaction are connected without an apparent business reason • The ties between the parties of a family, employment, corporate or any other nature generate doubts as to the real nature or reason for the transaction • There are multiple appearances of the same parties in transactions over a short period of time • The age of the executing parties is unusual for the transaction, especially if they are under legal age, or the executing parties are incapacitated, and there is no logical explanation for their involvement • There are attempts to disguise the real owner or parties to the transaction.

• The person actually directing the operation is not one of the formal parties to the transaction or their representative • The natural person acting as a director or representative does not appear a suitable representative.

RED FLAGS IN THE SOURCE OF FUNDS Red Flag 4: The transaction involves a disproportional amount of private funding, bearer cheques or cash, especially if it is inconsistent with the socioeconomic profile of the individual or the company’s economic profile.

Red flag 5: The client or third party is contributing a significant sum in cash as collateral provided by the borrower/debtor rather than simply using those funds directly, without logical explanation.

Red flag 6: The source of funds is unusual: • third party funding either for the transaction or for fees/taxes involved with no apparent connection or legitimate explanation • funds received from or sent to a foreign country when there is no apparent connection between the country and the client funds received from or sent to high-risk countries.

Red flag 7: The client is using multiple bank accounts or foreign accounts without good reason.

Red flag 8: Private expenditure is funded by a company, business or government.

Red flag 9: Selecting the method of payment has been deferred to a date very close to the time of notarisation, in a jurisdiction where the method of payment is usually included in the contract, particularly if no guarantee securing the payment is established, without a logical explanation.

Red flag 10: An unusually short repayment period has been set without logical explanation.

Red flag 11: Mortgages are repeatedly repaid significantly prior to the initially agreed maturity date, with no logical explanation.

Red flag 12: The asset is purchased with cash and then rapidly used as collateral for a loan.

Money Laundering and Terrorist Financing Vulnerabilities of Legal Professionals Red flag 13: There is a request to change the payment procedures previously agreed upon without logical explanation, especially when payment instruments are suggested which are not appropriate for the common practice used for the ordered transaction.

Red Flag 14: Finance is provided by a lender, either a natural or legal person, other than a credit institution, with no logical explanation or economic justification.

Red Flag 15: The collateral being provided for the transaction is currently located in a high-risk country.

Red flag 16: There has been a significant increase in capital for a recently incorporated company or successive contributions over a short period of time to the same company, with no logical explanation.

Red flag 17: There has been an increase in capital from a foreign country, which either has no relationship to the company or is high risk.

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council members Red flag 18: The company receives an injection of capital or assets in kind which is notably high in comparison with the business, size or market value of the company performing, with no logical explanation.

Red flag 19: There is an excessively high or low price attached to the securities transferred, with regard to any circumstance indicating such an excess (e.g. volume of revenue, trade or business, premises, size, knowledge of declaration of systematic losses or gains) or with regard to the sum declared in another operation.

Red flag 20: Large financial transactions, especially if requested by recently created companies, where these transactions are not justified by the corporate purpose, the activity of the client or the possible group of companies to which it belongs or other justifiable reasons.

RED FLAGS IN THE CHOICE OF LAWYER Red flag 21: Instruction of a legal professional at a distance from the client or transaction without legitimate or economic reason.

Red flag 22: Instruction of a legal professional without experience in a particular specialty or without experience in providing services in complicated or especially large transactions.

Red flag 23: The client is prepared to pay substantially higher fees than usual, without legitimate reason.

Red flag 24: The client has changed advisor a number of times in a short space of time or engaged multiple legal advisers without legitimate reason.

Red flag 25: The required service was refused by another professional or the relationship with another professional was terminated.

RED FLAGS IN THE NATURE OF THE RETAINER Red flag 26: The transaction is unusual, e.g.: • the type of operation being notarised is clearly inconsistent with the size, age, or activity of the legal entity or natural person acting • the transactions are unusual because of their size, nature, frequency, or manner of execution • there are remarkable and highly significant differences between the declared price and the approximate actual values in accordance with any reference which could give an approximate idea of this value or in the judgement of the legal professional • a non-profit organisation requests services for purposes or transactions not compatible with those declared or not typical for that body.

Red flag 27: The client: • is involved in transactions which do not correspond to his normal professional or business activities • shows he does not have a suitable knowledge of the nature, object or the purpose of the professional performance requested • wishes to establish or take over a legal person or entity with a dubious description of the aim, or a description of the aim which is not related to his normal professional or commercial activities or his other activities, or with a description of the aim for which a license is required, while the customer does not have the intention to obtain such a licence • frequently changes legal structures and/or managers of legal persons • asks for short-cuts or unexplained speed in completing a transaction • appears very disinterested in the outcome of the retainer • requires introduction to financial institutions to help secure banking facilities Red flag 28: Creation of complicated ownership structures when there is no legitimate or economic reason.

Red flag 29: Involvement of structures with multiple countries where there is no apparent link to the client or transaction, or no other legitimate or economic reason.

Red flag 30: Incorporation and/or purchase of stock or securities of several companies, enterprises or legal entities within a short period of time with elements in common (one or several partners or shareholders, director, registered company office, corporate purpose etc.) with no logical explanation.

Red flag 31: There is an absence of documentation to support the client’s story, previous transactions, or company activities.

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Red flag 32: There are several elements in common between a number of transactions in a short period of time without logical explanations.

Red flag 33: Back to back (or ABC) property transactions, with rapidly increasing value or purchase price.

Red flag 34: Abandoned transactions with no concern for the fee level or after receipt of funds.

Red flag 35: There are unexplained changes in instructions, especially at the last minute.

Red flag 36: The retainer exclusively relates to keeping documents or other goods, holding large deposits of money or otherwise using the client account without the provision of legal services.

Red flag 37: There is a lack of sensible commercial/financial/tax or legal reason for the transaction.

Red flag 38: There is increased complexity in the transaction or the structures used for the transaction which results in higher taxes and fees than apparently necessary.

Red flag 39: A power of attorney is sought for the administration or disposal of assets under conditions which are unusual, where there is no logical explanation.

Red flag 40: Investment in immovable property, in the absence of any links with the place where the property is located and/ or of any financial advantage from the investment.

Red flag 41: Litigation is settled too easily or quickly, with little/no involvement by the legal professional retained.

Red flag 42: Requests for payments to third parties without substantiating reason or corresponding transaction.

Michael Garson Council Member Law Society Treasurer and chair of its Management Board.

council members

Conveyancing risks Conveyancing remains a widely used and poorly valued service provided by solicitors. Estate agents, brokers and politicians induce expectation of fast performance and low-cost; either or both of these expectations are misplaced and often end in disappointment. In fact the legal work involves a combination of a number of sets of processes requiring careful supervision and the cost of carrying out work to a proper standard can be substantial. The risk of unexpected and new traps demands constant vigilance. But for the consumer, once they have decided upon a transaction, any delay gives rise to frustration of the emotional desire to complete and is a sign of possible increased cost.

The risks still on the increase, and on most conveyancers’ radar, arise from a combination of identity fraud, money laundering and cyber fraud. Any occurrence of any of these can have a serious impact on any Law firm. There is, at the moment, however ,no universally recognised methodology for dealing with such risks as fraudsters find novel ways to outflank security checks and regulation.

Recent cases, such as Purrunsing v A’Court and Another [2016] EWHC 789 (Ch)), P&P Property Limited v Owen White & Catlin [2016] EWHC 2276 (Ch) and Dreamvar (UK) Ltd v Mishcon de Reya and Mary Monson Solicitors Ltd [2016] EWHC 3316 (Ch) have further highlighted some key warning signs.

The classic problem presented by these cases is that, in each case, the solicitor acting for a fraudster was not dishonest or complicit in the fraud. Viewed together they do serve to highlight recurring difficulties and uncertain outcomes which must be combatted. Liability has attached because of a degree of carelessness or oversight in relation to client identification.

The facts follow a clear pattern; a fraudster with or without a co operating agent targets a property that is in probate or left empty with no mortgagee and has been let or held for development. In none of these cases do the seller and buyer have direct or meaningful contact at the property - so family moves within local communities are not primary targets in these cases.

The appeal in Dreamvar is likely to be heard next year and the question of where liability rests may be resolved but the issue of accurate identification itself will not go away and new methodologies are constantly evolving to take advantage of any weakness in the process –and there are many. . Conveyancers should take a risk based approach in the absence of anything more certain and must do so without any client recognition of value for the function.

Action to mitigate risk is advisable irrespective of whether the seller’s, or the buyer’s, conveyancer takes responsibility or the responsibility is shared in respect of verification of the proprietor’s identity. There is no sure fire certain way to avoid this risk. Many solicitors, where acting for buyers, are now raising questions with the seller’s conveyancer to which the seller’s conveyancer cannot always give satisfactory answers It is doubtful whether posing questions or the answers received will actually shift the burden of liability. Buyers’ conveyancers advising the buyer and putting a responsibility on the lay client to check out the identity of the seller seems, at present, to be the most sensible alternative.

These and other options are explored in the recent joint practice note issued by the Law Society and the Land Registry. This is an interim measure pending further decision by the court. (www.lawsociety.org.uk/support-services/advice/practicenotes/property-and-registration-fraud).

Although policy makers and courts will find it unpalatable to place the risk with the lay client it is the best route for the buyer’s conveyancer though unlikely to satisfy all lenders. There is of

course nothing to prevent some online checking of the seller if sufficient reliable information is supplied.

Many clients will be confounded that they are being involved in this issue but in ninety nine cases out of one hundred the buyer will be able to satisfy themselves that the seller is genuinely the owner of the property for sale.

The SRA response of June to the CMA report of December 2016 sets out the way forward in relation to price transparency.

I quote: “We have now developed our thinking in this area, particularly in response to the CMA's recommendation that regulators mandate firms to publish price information. We have recognised the complexity of doing this, especially as legal services are not a simple product. Yet we agree that the lack of information on prices makes choices difficult, and stops people accessing legal services. Six out of ten people do not believe professional legal advice is an affordable option.

So that we fully understand the best way to share information, we plan to trial a straightforward approach to firms publishing prices in a few areas of the law, such as conveyancing. We will then assess the benefits to consumers, as well as the impact on firms.”

When advertising for business firms will do well to bear in mind the warnings within the judgment of Jackson LJ in Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303 and particularly where he refers to the courts view on retainer agreements set out in Minkin v Landsberg [2015] EWCA Civ 1152 where at paragraph 38, he refers to his own words that: i) A solicitor's contractual duty is to carry out the tasks which the client has instructed and the solicitor has agreed to undertake. ii) It is implicit in the solicitor's retainer that he/she will proffer advice which is reasonably incidental to the work that he/she is carrying out. iii) In determining what advice is reasonably incidental, it is necessary to have regard to all the circumstances of the case, including the character and experience of the client. iv) In relation to (iii), it is not possible to give definitive guidance, but one can give fairly bland illustrations. An experienced businessman will not wish to pay for being told that which he/she already knows. An impoverished client will not wish to pay for advice which he/she cannot afford. An inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client. v) The solicitor and client may, by agreement, limit the duties which would otherwise form part of the solicitor's retainer. As a matter of good practice the solicitor should confirm such agreement in writing. If the solicitor does not do so, the court may not accept that any such restriction was agreed.

A low unprofitable fee will not exonerate a solicitor from doing what ought to be done in any particular case for any particular client.

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article

Brexit — what will it mean for the legal profession?

The Law Society team has some answers.

Overview - the current state of play In March 2017, the Prime Minister, gave notice of Britain's intention to leave the European Union, thereby starting the formal negotiation process.

Initially we expected formal negotiations to begin following a special summit of the EU on 29 April. Due to the snap General Election on 8 June we saw them officially begin on Monday 19 June.

The negotiation process must be concluded within a two-year period from notification. If a deal cannot be reached in that time, or at least some agreement over transitional measures, the UK will leave the EU without certainty on its new relationship with its closest neighbours and trade partners and we will most likely have to rely on World Trade Organisation (WTO) rules.

Brexit and the legal profession It is important to stress that the UK is part of an international legal community.

Solicitors in England and Wales do not operate in isolation. With the help of overseas colleagues, firms and bar associations they work together and underwrite the infrastructure of the provision of justice at home and abroad.

They are part of an international community of which resolves the vast majority of disputes outside of the courts and sets out the transactions and agreements that underpin the largest corporate and institutional deals of our countries, enabling economic prosperity.

The UK legal services sector The UK is the second largest legal services market in the world behind the US and the largest legal services market within the EU. The UK, and specifically London, is the European hub for legal services, in part due to the ability to practise and establish across the EU. There are more than 200 foreign firms in London - including 100 US firms - representing over 40 jurisdictions. There are more than a thousand Registered European Lawyers from 27 (out of 31) EU and EFTA countries established in England and Wales, and more than 60 European firms from 13 EU and EFTA member states are established in London. The legal sector in London employs over 107,000 people from different jurisdictions.

In 2015 the UK legal services sector was worth £32 billion to the UK economy (1.5% of GDP); employed and trained in excess of 380,000 people (220,000 in solicitors' firms) and exported over £4 billion of legal services (55% of the UK’s export of business services go to the European Union, of which legal services is one of the main components) The UK accounts for 10% of global legal services fee revenue and 20% of all European legal services fee revenue. In 2014, it was noted that the total value of the UK legal sector is almost three times the size of the German legal market and six times of the French market.

UK legal services across the world Similarly, solicitors of England and Wales are part of the legal profession in other jurisdictions. For example, there are nearly 37 English law firms with a presence in Dubai and many others are working in the US, Germany, France, BRIC countries and more recently Korea. The local bars in these countries also welcome our solicitors in their organisations, such as the American Bar Association.

In 2015, 1,623 practising solicitors reported their main practising office to be in a European country (this is more than 1% of all practising solicitors). Germany, France and Switzerland are home to more than half of practising solicitors established in Europe. UK law firms are present in 26 out of 31 EU and EFTA member states, and operate a total of 285 branches in Europe (1.9% of the total number of offices opened).

Supporting wider business including financial services The concentration of legal and financial services in the City is a key factor to the UK's prosperity. Financial services generate more than 10% of the UK's total Gross Domestic Product and it is a key purchaser of legal services accounting for the largest percentage (17%) of total demand. For the top 50 law firms, 44 percent of their transactions were from financial services clients. The UK, and particularly London, can be seen as a ‘one stop shop’ for the services required to support financial organisations.

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More broadly, legal services provide vital support in developing new export markets and supporting UK companies’ international operations. For every £1 extra turnover in legal services, it creates £1.39 in the wider economy.

Priorities for the EU-UK negotiations The Law Society has been speaking to members on the impact Brexit could have on their firms and clients. Through this engagement we have identified five priorities. These are: • Continued mutual access for lawyers to practise law and base themselves in the UK and EU member states, and for their clients to have legal professional privilege • Maintain mutual recognition and enforcement of judgments and respect for choice of jurisdictions clauses across the EU • Maintain collaboration in policing, security and criminal justice •Ensure that legal certainty is maintained throughout the process of withdrawal •Ensure that the Government works effectively with the legal services sector to continue to promote England and Wales as the governing law of contracts, the jurisdiction of choice and London as the preferred seat of arbitration.

Alongside this, it will be important that the government show its support for the international success of the legal sector by ensuring law firms can continue to recruit skilled individuals from outside the UK through a proportionate and efficient sponsorship and visa process.

Our “Brexit and the Law” report was published in January 2017. This goes into more details about our priorities and was submitted to Government.

We also launched a Global Legal Centre campaign to promote the strengths of English and Welsh law as the governing law of international contracts, England and Wales as the jurisdiction of choice for dispute resolution and London as the preferred seat of arbitration – read more at http://www.lawsociety.org.uk/policycampaigns/campaigns/global-legal-centre/

Practice rights and mutual market access The single market in legal services is a European success story. Through a series of European directives - lawyers across the EU have the right to give advice on home state law, host state law, EU and international law. Additionally these directives allow law firms to establish in any member states and for UK solicitors to requalify within three years of effective and regular practice of host state law (including EU law) in the host state.

Since this liberalisation, the UK legal services sector has become a major exporter to the EU – 36 of the top 50 UK law firms have at least one office in another EU/EEA/Swiss state, and UK law firms have a presence in 26 of the 31 EU/EEA/Swiss countries.

The current EU framework allows lawyers to provide legal services and establish law firms with few restrictions. Lawyers within the EU (and EFTA) benefit from a simple, predictable and uniform system of commercial and personal presence in other member states, with little scope for national variation. These rights allow UK lawyers to service the cross border needs of businesses and individuals both from satellite offices in the EU and through ‘fly-in, fly-out’ (FIFO) services from their London office (a daily business practice for many firms).

The potential impact of the loss of mutual market access in legal services If law firms are not able to maintain equivalent level of mutual market access in legal services: Law firms may have to reconsider how they are structured for the provision of international legal services. Operating as a branch of an English and Welsh LLP may not be recognised anymore; partnership between local lawyers and third country lawyers may be prohibited or subject to complex ownership rules; commercial presence and establishment may be severely restricted in some jurisdictions.

Individual lawyers may need to consider requalification in the host state profession or another EU/EFTA qualification (e.g. as Irish solicitor). Issues such as gaining EU/EFTA citizenship may arise. Conditions for solicitors to remain part of a local partnership or for European lawyers to be part of a partnership involving UK solicitors may be severely constrained depending on the jurisdiction of origin and/or establishment.

Law firms may need to consider transferring people and practice areas to different

article offices, in either direction, e.g. away from London as the hub for European work or back to London if the provision of English and Welsh law advice is becoming more restricted in some EU/EFTA jurisdictions.

The UK could be less attractive to third country businesses and law firms which often look to set up an office in the UK as a means of gaining access to the EU market.

Consumers will face more difficulties in obtaining legal advice from an English or Welsh lawyer on a matter that relates, even if only in part, to English and Welsh law (family, property, investment, etc.)

International law firms have the ability to relocate their resources to other hubs, whether in Europe or wider international competitors such as Singapore and New York. However this relocation could reduce the contribution of legal services to the UK economy – through jobs, trade and tax revenue. Also smaller firms, or those who do most of their work through their UK offices, may see a decline in their international work as they may not be able to work to service some European clients in the same ways as previously – again impacting on the sector's contribution to the UK economy.

It is also important to mention that common law is highly influential in the making of EU law. Brexit is likely to decrease the common law influence, and there is a worry that this will reduce the value of EU law in common law jurisdictions such as the US. This in turn may have an economic impact on the EU. Others have also suggested that Europe may not necessarily gain from any work lost from London – again, it may transfer to financial centres such as Singapore and New York.

The impact of falling back on to WTO rules If the UK and EU are not able to agree to mutual market access, law firms and lawyers would most likely have to rely on the WTO General Agreement on Trade in Services (GATS) and national regulations in each EU/EFTA country. This would mean moving from a system where there are few restrictions on them operating in other member states to the position of third country states where there are a number of significant restrictions.

The most important of these restrictions include:

1. Restrictions on practice areas In most EU Member States it is not possible to practise local state law as a third-country lawyer without holding local qualifications. The WTO/GATS schedules of commitments under legal services include only home country and public international law. Crucially, EU law is not treated as a type of public international law and so is excluded from the scope of the schedules so UK lawyers would not be able to advise on areas such as competition, internal market and trade. In most Member States, it would not be p ossible, save for a few exceptions, for a third-country lawyer to represent their client in domestic courts.

2. Restrictions on modes of practice Some EU Member States do not permit FIFO services by third country lawyers and if, it is lost, the profession's ability to continue to advise European clients, represent those with cases involving more than one EU member state, and continue to play a leading role in global investigations will be jeopardised. Each EU member state is able to impose its own national restrictions on FIFO such as: • compulsory membership of professional bodies in relation to commercial presence, e.g. France, Germany and Luxembourg; • strict rules prohibiting local lawyers from partnering with non-EU lawyers, e.g.

Spain and Sweden; • restrictions on company structure or commercial presence, such as restrictions on foreign investment in law firms or an imposition of a certain legal form on third-country law firms, e.g. France, Spain, Portugal or Poland.

3. Nationality requirements Most Member States do not allow third-country nationals to re-qualify into the national legal profession as this is only available to the EU/EFTA nationals.

The Law Society completed a country-by-country analysis of the most important restrictions and requirements imposed by EU and EFTA countries on third country (nonEU/EFTA) lawyers and law firms. You can read more about it at http://communities.lawsociety.org.uk/international/regions/europe/third-country-lawyerspractice-rights-and-conditions-for-setting-up-a-third-country-law-firm-in-the-eu-andefta-countries/5060997.article Access to the EU courts and legal professional privilege Importantly, EU membership allows UK solicitors to represent their clients before EU courts, i.e. General Court of the EU (GCEU) and Court of Justice of the EU (CJEU), and specialised tribunals for example the EU Intellectual Property Office. However this right only applies to lawyers who are authorised to practise before a court of a Member State or an EEA state. This means that once the UK leaves the EU, English and Welsh solicitors will lose their rights of audience in these two courts.

EU membership also allows lawyers’ clients to benefit from legal professional privilege (LPP). The case law of the CJEU currently does not recognise the privileged nature of communications between a client and a lawyer who is not qualified in the EU/EEA and registered in a relevant professional body in an EU/EEA country. This means that once the UK leaves the EU, UK lawyers’ advice to clients will no longer automatically attract LPP in the context of EU cases such as competition proceedings and would need to be disclosed to the European Commission. Without this protection, lawyers cannot advise their clients properly and the loss of LPP would put UK lawyers and law firms at a serious competitive disadvantage compared to their EU/EEA/Swiss counterparts.

This will be particularly detrimental to two areas of law where the UK has significant expertise -competition law and intellectual property law.

The need for an implementation period Lawyers and law firms will need time to adapt to the new arrangements between the EU and individual EU 27 states (with or without a new EU-UK agreement) on practice rights.

An implementation period would give law firms and their clients the time to prepare for the changes and plan their long term strategy.

In some cases, this will be possible only through setting up a subsidiary regulated by the law of one of the Member States and this process will take time. This will affect not only English firms but also US firms who use their offices in London as headquarters for their EU operations. Providing time to adapt to the new arrangements would improve legal certainty, and give firms a better chance to retaining their current clients.

The Law Society's work since the EU referendum home and abroad Since the EU referendum result on 24 June 2016, the Law Society has provided information and advice to our members on the implications for the legal profession. We have also been working with members to identify what the sector needs in the EU negotiations and speaking to stakeholders in England and Wales, the European Union and globally about these priorities.

The Law Society has met with a number of influential stakeholders to discuss the legal sector priorities for the EU negotiations. These include ministers, civil servants, Parliamentarians, other legal and business groups, EU institutions and our counterparts in bars and law societies across Europe.

We have submitted evidence to a number of parliamentary committees. In many cases our key asks and priorities for the negotiations were represented. More information on our work can be found at http://www.lawsociety.org.uk/support-services/brexit-and-thelegal-sector/?topic=brexit&p=2 We have also begun engaging with key stakeholders in the EU Commission, EU Parliament, the Council of the EU and the UK permanent representation to the European Union (UKRep).

The Law Society has been speaking to its European counterparts, through existing opportunities such as Opening of the Legal Year, via the Council of European Bar and Law Societies (CCBE) and through scheduled visits across Europe.

These meetings and events have also been an excellent opportunity for the Law Society to communicate that England and Wales wants to continue to be part of the European legal community.

We have organised roundtable discussions with European and non-EU bar representatives (for instance from the US or South Korea) and with EU firms and European Lawyers based in London to discuss the impacts of Brexit on their firms and clients.

Promoting England and Wales as a global legal centre England and Wales will continue to provide an open environment, a dynamic common law jurisdiction that encourages practitioners from a range of jurisdictions and will remain a leading global centre for legal services. It is in the interests of both us and our European partners that we recognise mutual advantage to working together to secure the best deal possible for legal services.

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article

Casting a legal eye on Bridging Finance transactions: Diligence and Cybercrime Whilst still a relatively niche area of law, the concept of bridging finance has gained its own prominence. This is particularly so, in anticipation of a post Brexit climate, where mainstream lenders are being driven to re-capitalise rather than lend.

Bridging finance is believed to have originated in the 1960s where it was mainly used for residential and buy-to-let properties. In the recent economic environment however, its fundamental characteristics have rendered bridging finance attractive in the commercial property sector. For example, bridging finance is used in property transactions to overcome the obstacles presented by time delays by creating a “bridge” between the participant’s immediate cash flow requirement and the eventual entitlement to funds. It provides short term liquidity to individuals and businesses alike.

Due to the intrinsic flexibility that it must maintain, lawyers working in bridging finance face enormous time pressures.

Many lawyers, particularly at smaller law firms, are still largely unaware of, or do not possess the necessary specialist resources to cope with the demands of bridging finance.

As with any client, the relationship between a lawyer and a bridging lender is a service-oriented relationship which requires expert and specific knowledge on the lawyer’s part.

A lender’s main concern is the value of the underlying security and the marketability of the property. Lawyers are therefore expected to be able to investigate title, verify the integrity of borrowers, deliver documentation adequately and meet the high demands of anti-money laundering checks. The fact that this must be done within a very short period of time makes bridging finance lawyers more susceptible to sophisticated crime including fraud and identity thefts.

With respect to the increasing prevalence of cybercrime in transactional law, bridging finance is a highly vulnerable area.

Fraudsters target short-term lenders due to their belief that highspeed bridging loan transactions means lighter due diligence which provides greater scope for criminality.

The ability to identify such risks ought to be deeply rooted in any experienced transactional lawyer practising in the short-term lending and bridging space. The case may not immediately attract the attention of lawyers acting for short-term lenders as it was largely a conveyancing case. The ruling however, is very relevant to any lawyer dealing in property transactions who retains funds in their client account for transactional purposes.

When acting for lenders in short-term lending, the key is to be able to go beyond the surface issues of a bridging transaction and to ensure that lawyers have the confidence to advise and alert lenders on all potential risks posed in a bridging deal and in the perfecting of security. Lawyers should always keep an eye out for potential signs of unlawfulness such as mortgage debt free, high value and vacant unencumbered properties being sold and offered as security in a hurry.

Given the inherent risks associated with bridging finance, it is essential that lawyers practising within the area adopt a more enhanced approach to due diligence to verify the identity of parties to transactions and to maintain a more robust client and transaction vetting and risk assessment process.

Identifying and advising lenders of any requests for information that have not received a satisfactory response from borrower’s lawyers is of paramount importance. In such situations, it is vital for solicitors acting for lenders to obtain requisite undertakings from the borrower’s lawyers confirming they are satisfied with their checks regarding their client.

As we advance into the digital age and vulnerabilities become further exposed, it is vital that lawyers are well equipped and well trained to mitigate the risks of falling victim to crime.

Bhoomika Beechouk Daddar

Trainee Solicitor, Sriharans Solicitors Therefore, lawyers in bridging finance are required to remain vigilant and to maintain a secure and resilient approach throughout a transaction. The much discussed “Dreamvar (UK) v Mischcon de Reya Case” addressed risk indicators or warning signs in property transactions that should have triggered alarm bells for the solicitors’ firm of Mischcon.

MEET THE REGULATOR OF SPECIALIST The Council for Licensed Conveyancers (CLC) was established in 1985 to foster competition and innovation in the conveyancing market. To find out more about how our experience as a specialist regulator of conveyancing and probate could help your legal business to thrive, why not visit the CLC Stand at LAW 2018 at Westminster Town Hall on the 13th and 14th March, and also at the Legalex event at London’s Excel on the 21st and 22nd March 2018.

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property

Bridging and buy-to-let: creating a smooth borrowing process For property investors, it may seem, at first glance, that buy-to-let investment is a fairly straightforward process: finding the right property to purchase and securing a buy-to-let loan, after which they can start to generate However, as brokers are well aware, it’s never as straightforward as that. Any number of complications can arise along the way, even before applying for a buy-to-let loan.

necessary amount at hand for the high deposit on their desired property, but with the help of a bridging loan, they’ll be able to put down the required amount.

With the PRA’s recent changes to this sector and underwriting standards, more brokers are looking to find creative solutions to secure funding for clients. One trend that we’ve observed is the increased use of bridging finance as a complementary solution to buy-to-let loans, especially where requirements are complex or the project has several stages.

• Properties in need of refurbishment, renovation or conversion – If brokers’ clients decide on investing in a property in need of refurbishment or renovation, a bridging loan can provide the funds needed to purchase the premises in order to carry out the works before putting it on the rental market.

The first step Bridging loans can often be used as the first step in a buy-to-let project where complications arise, be it from the property’s or the borrower’s side. These can include: • Having to move fast – The first thing that brokers must remember about bridging loans is that they tend to be accessible quickly and efficiently. This means that if a client is looking to purchase a specific property with a tight deadline, they will require funds often within days. Nimble bridging lenders will be able to provide the required loans despite the tight timeframes, thus helping secure the desired property.

• High deposit required – Due to their riskier nature, deposits for buy-to-let properties will be higher than for residential mortgages – something many investors don’t account for when looking to invest in this sector. In some cases, brokers’ clients won’t have the

The exit strategy in each case will most often be the refinancing onto a longer-term loan, such as a standard buy-to-let loan, which brokers can then help source with the appropriate lender.

Considerations If advising a bridging loan to clients to complement their buy-to-let mortgages, brokers must bear in mind some considerations. For example, when purchasing a property in need of refurbishment, there is a risk that delays might occur during the development process, which could then have an impact on the repayment of the bridging loan.

To prepare for this potential risk, many lenders have developed ‘bridge-to-let’ products. These can either be bridging loans with the specific purpose of putting the property on the rental market after completion, or can be loans which have a built-in bridging period before the loan is seamlessly refinanced by the same lender’s buyto-let product. These terms usually range between one to four months.

For properties in need of conversion, often specific permissions must be obtained before commencement of works – for example, in the case of converting a single-rent property into several units for shared occupation, the borrower may need to obtain a planning permission and a licence to rent out a house in multiple occupation.

Some bridging lenders may require an existing buy-to-let decision in principle before releasing the bridging funds. Therefore, in this case, brokers must carry out adequate research to identify the most suitable buy-to-let lenders for the project and liaise with them before applying for a bridging loan. This decision in principle might also be affected by the changing LTV once the property has been refurbished.

In addition, some lenders require the borrower to have owned the property for a minimum term, starting from one month, before providing a buy-to-let loan.

Paresh Raja, CEO Market Financial Solutions

The Bill of Middlesex 23

anti-money laundering

Anti-Money Laundering: What’s changed and what this means for UK conveyancers The European Union’s Fourth Anti-Money Laundering Directive was implemented into UK law on June 26th. As a result there are changes to how law firms must conduct customer due diligence and an increased focus on the need to incorporate ongoing and documented risk assessment.

What’s the risk?

There are regulatory and legal / criminal penalties in place for non-compliance.

This includes fines of up to £1 million and prison sentences from two to seven years.

What’s changed?

1. Customer due diligence and risk assessment Under the new legislation the choice regarding level of due diligence is more limited. There is no longer any automatic exemption from enhanced due diligence. A decision to apply simplified due diligence needs to be evidenced by a documented risk assessment. In simple terms, this means that all conveyancing clients must be risk-assessed, regardless of country of origin, services purchased or delivery channels. Moreover, the risk assessment now needs to include Politically Exposed Persons (PEPs) and Financial Sanctions screening.

2. Ongoing record-keeping and transparency Risk assessments must be kept and made available to regulators.

This is worth noting as it is the first time that firms are explicitly being told to document and file risks in this way.

How an electronic AML search can help An AML search facilitates risk assessment by combining all processes and records in one automated system.

It enables firms to search for adverse information on a client more thoroughly than they would be able to do manually, and it ensures that compliance procedures are adopted firm-wide.

A typical AML search offers:

Automated risk assessment

This includes automated screening of Sanctions, PEPs and alert lists and multiple confirmation of identity, address and birth.

Choice of due diligence level

Users can opt for either simplified or enhanced due diligence. Simplified due diligence is typically for “low risk” transactions whereas enhanced due diligence is for “medium or high risk work”. Opting for enhanced due diligence ensures the most comprehensive range of electronic data (including positive and negative verification) is used to confirm the client’s identity, date of birth and address.

On-going compliance

The system continues to monitor risk-assessed clients, alerting you if documentation or data may affect the result of the original assessment.

Automated record keeping

An AML search also automates record-keeping and audit. Users have the option to add, certify and manage customer documents within the due diligence record.

Geodesys offers an AML search at a cost of £6 (inc VAT) for enhanced due diligence.

The search is not restricted to conveyancing transactions, but offers valuable due diligence cover in dealings where there is any risk of money laundering, identity theft, fraud or mis-representation, for example, in probate cases.

For more information please see our frequently-asked questions on AML for conveyancers at www.geodesys.com/aml-directive-faq

24 The Bill of Middlesex

Conveyancing searches?

Geodesys. All you need to know.

For the past 20 years, Geodesys has provided a wide range of conveyancing searches and reports to clients nationwide.

Our dedicated team continue to offer our unique service, drawing on their extensive expertise and knowledge to meet all your needs while responding to evolving market requirements.

The result? Wherever you are in the UK, the indispensable peace of mind offered by Geodesys together with our unique insight and unparalleled customer service are at your disposal.

Celebrating 20 years of excellence.

For information call 0800 085 8050 or email customer.services@geodesys.com www.geodesys.com

The Bill of Middlesex 25

legacies

When you’re gone...

More people are realising the importance of making provisions for when they pass away, especially when it comes to taking care of their pets.

Many 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 offer a fantastic free service that aims to give owners peace of mind, knowing that their dog will be loved and cared for should anything happen to them, and helps to ease the minds of friends and family during what is already a distressing time.

Amy, a 14-year-old Collie cross, found herself alone when her owner sadly died and the next of kin couldn’t care for her. Because Amy had been registered on the Canine Care Card, a family member was able to hand her over to the care of Dogs Trust Kenilworth. Amy had lived with her owner since she was a puppy and was understandably missing her home comforts, so was placed into temporary foster care before finding a loving new owner, 85-year-old Graham Buckingham from Brinklow, who says: ‘I'm so lucky to have her in my life and I'm glad that I've given her a second chance."

Becoming a Canine Care Card holder is easy. Dogs owners simply complete a registration form and return it to Dogs Trust, who issue them with a wallet-sized card which acts in a similar way to an organ donor card and notifies people of their wishes for their dogs, should anything happen to them.

26 The Bill of Middlesex

We will arrange to bring their dog to our nearest rehoming centre, where they will be examined by our expert vet and cared for by our dedicated, trained staff. We will endeavour to find their dog a new owner whose lifestyle and experience match their needs, but if for any reason they cannot be rehomed, rest assured Dogs Trust never puts down a healthy dog, so we will look after them for the rest of their lives.

legacies

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

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

Two out of three guide dogs and six out of 10 life boat launches are paid for by gifts in Wills, as is over a third of Cancer Research UK’s life-saving work.

Unfortunately, there is evidence of a disconnect between people’s intentions to give money in their Wills and those doing so.

Research shows that 35% of those surveyed want to leave money to charity in their Will, but only 6.3% do.

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

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

Making provision for everything that’s important.

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

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

Find out more at rememberacharity.org.uk

Simply mention ‘including a charity’ to your clients.

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

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

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

The Bill of Middlesex 27

forensics

Why “cut-off” matters in drug testing Imagine standing up in court where you’re about to learn whether or not you’ll gain custody of your children. This is a reality for many parents and often hinges on the results of a drug test.

T

he fact is, cut-offs play an important role in determining whether or not someone has been using drugs, which can have a major impact on the decision of a family court. That’s why we’ve outlined in plain English what exactly cut-offs are and how they’re used in interpreting the results of a drug test.

What is a drug cut-off?

A cut-off is a value which the results obtained in the hair drug test are compared against. Where drug levels are above the cut-off, the result is considered as “positive” or “detected”. Where drug levels are below the cut-off, the result is considered as “negative” or “undetected”.

Typically, there are two types of drug cut-offs: the analytical cut-off and the user cut-off. The analytical cut-off is based on the limit of the testing method/ technique used to test the hair sample. Essentially, where a positive result gives a reading significantly above the limit of the method/ technique. On the other hand, the user cut-off indicates whether an individual has used drugs within the period covered by the sample and helps to exclude the detection of drugs from environmental contamination. For example, an individual may not have directly smoked any cannabis but was in a car with people who were smoking cannabis.

Why do cut-offs matter?

Cut-offs matter as not all positive test results mean a donor is currently using drugs. For example, the donor might have taken drugs a few months prior to the time frame of detection a hair test was used to assess. In this case, drugs would most likely be detected in the sample, but the result would be below the analytical cut-off as drug use was clearly in the past.

User cut-offs are important as they safeguard donors from “false positives”. The user cut-off makes it clear that even though drugs are

present, the donor hasn’t actually been using drugs within the period covered by the sample tested and has merely been exposed to drugs in their environment.

In both cases, cut-offs can protect a donor from a potential miscarriage of justice in a family court.

The factors that can affect a cut-off Not all drug tests use the same cut-off values. In fact, the cut-off used in a drug test can be affected by: • The type of drug under assessment – eg in hair samples, the cut-off for cocaine is higher than the cut-off for the metabolite of THC (the main component of cannabis) • The type of sample – eg the cut-offs for hair samples are much lower than for urine samples • The method of analysis used – eg immunoassay testing (initial testing) versus chromatographic methods (follow-up confirmation testing) • The drug testing laboratory – eg different labs may use different procedures and equipment (accredited labs are your best bet for an accurate and reliable result).

Overall, analytical and user cut-offs can indicate whether a donor truly has been taking drugs or has simply been exposed to drugs in their environment or used drugs prior to the period covered by the hair sample. This distinction can have a significant impact on the decision of a family court, so cut-offs must be considered carefully when interpreting results for drug use.

John Wicks Cansford Laboratories, Cardiff jwicks@cansford.com

Th hree days can sa ave a lifetime off hurt Critic cal decisions require the b best evidence, quickly!

We provid de competitively priced UKAS-accredited hair test re esults within 3 days of receipt of the sample in our lab.

Establish a clear pattern of drug or alcohol misuse sp panning the last 6 -12 months: • Which drugs or what level of alcohol has been used and when?

• What is the pattern of misuse – is it risin ng or falling?

• Has dru ug use cha anged in the past wee eks or mo onths?

tel: +44 (0) 0) 29 2054 0567 ema ail: info@cansfordlabs.co.uk o@cansfordlabs.co.uk visit: cans sfordlabs.co.uk 28 The Bill of Middlesex

ground rent

Can Leasehold Enfranchisement be the answer to doubling ground rents?

Recent news reports about houses in the North East being sold with 999 year leases and subject to high ground rents that double every 20 years, brought headlines of ‘One Million Pounds per annum Ground Rent Liability’.

T

his was not representative of house sales across the Country, and after this matter was highlighted, quite rightly, developers have begun to change the way that these houses are sold and are now offering freeholds as opposed to long leasehold interests.

However, this matter has highlighted the growing trend for developers, particularly in London and the South East, to offer new build flats on long leases for 250 years and subject to ground rents that start at £250 pa and double every 20 or 25 years. Headlines again would report that in the final 25 years, the ground rent could be as much as £128,000 pa. Even when allowing for inflation, that clearly does seem a considerable liability, although by then who knows what currency we will be using, let alone whether we will still be living in ‘flats’.

Nonetheless, this increasing trend is giving cause for concern for valuers and solicitors as to how to best advise clients when purchasing flats where the ground rent ‘doubles’, as opposed to ‘increases’, every 20 or 25 years.

There appears to be a never ending supply of new build flats within London and the South East, but with a reduction in the demand due to concerns over the economy and the effect of recent tax changes to the buy to let market, it is the future saleability of flats with these significant ground rent liabilities that is brought into question.

The Leasehold Reform Housing & Urban Development Act of 1993 grants a lessee the right to extend their lease by 90 years, after it has been owned for 2 years, and importantly reduces the ground rent from whatever was originally payable under the terms of the lease, to peppercorn. The increased length of the term from 125 to 250 years would have very little effect upon the premium which would be paid, and in fact, as the capitalisation of the reversion – ie the value of the flat at the expiry of the lease – would be less for 250 years than it would be for 125 years, the overall premium payable would be less where a new lease of 250 years is granted as opposed to 125 years.

On a property with a value of £500,000, the cost of extending the lease after 2 years and thereby significantly reducing the ground rent liability, could be in the region of £5,000 to £10,000. This may be considered a small price to pay for significantly reducing the ground rent liability over the term of the lease. The removal of such a high ground rent liability will also enhance the saleability of the flat.

Andrew Barton MRICS Director Gibbs Gillespie

conveyancing

Avista –

the new residential environmental search report from Groundsure – is now available from Thames Water Property Searches

A

vista is an innovative new environmental search report designed to help conveyancers manage their caseloads efficiently and effectively.

There are many benefits to ordering this product: • It’s the first report of its kind to include seven key environmental searches, including planning, so there’s no need to waste time ordering individual reports.

• The unique Avista “Action Alert” is a special feature that allows conveyancers to prioritise follow-up work at a glance, so that problems can be targeted before they delay the transaction process.

• Avista reduces workload by removing unnecessary information, while allowing users to remain robust in their due diligence.

• The content is easy for both conveyancer and client to understand.

• The intuitive design also means vital information is easy to locate.

Avista is powered by the unique Groundsure IQ engine, which analyses over 106 million data points – on contaminated land, all four major flood risks, ground stability, radon, current and planned energy features and transportation, as well as 10 years of planning data – to produce each report.

Conveyancers will also appreciate the improved accuracy and pass rates for sites: the environmental datasets are filtered using Land Registry polygons, so that only results relevant to the property are returned.

Another of the report’s key selling points is the built-in intelligence that allows the data to be filtered so that the results and next-step strategies are highlighted in an easy-to-understand way.

“Essentially, you get all the information you need, and none of the information you don’t,” says Danielle Orosa, Strategic Account Manager at Groundsure. “Avista delivers more relevant results that are easier to follow through and clearly prioritised. For example, once a pass has been achieved, the customer is not burdened with unnecessary information.

The Avista ‘Action Alert’ will simply inform the customer that there are minimal actions identified. This reduces a similar set of reports from over 100 pages to on average fewer than 20 – a huge bonus for conveyancers and clients alike.”

However, in cases where risks are identified, follow-up tasks are prioritised and detailed on a clear recommendations page, helping conveyancers manage each transaction more effectively.

Avista is the latest and most advanced of Groundsure’s residential reports. It is priced at £79 excluding VAT and available to order now.

At Thames Water Property Searches, we always ensure that our customers have access to all the latest up-to-date reports so that their transactions run as smoothly as possible. To find out more about how this report can benefit your clients, contact our customer experience advisers today on 0845 070 9148

The Bill of Middlesex 29

conveyancing

Tailored regulation from a specialist The Council for Licensed Conveyancers (CLC) was established in 1985 to foster competition and innovation in the conveyancing market.

T

he CLC has always looked to be a proactive regulator in anticipating and monitoring the issues that affect the licensed conveyancing community. We work closely with all our licence holders and we listen to what they say, helping them to achieve the right outcomes for consumers.

The CLC regulates thriving firms of all types and sizes, and has always looked to promote high regulatory standards. Each CLC practice is allocated a Regulatory Supervision Manager (RSM), whose role is to guide them in all regulatory and compliance issues.

Today, we are still helping legal businesses to 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. In 2016, we were awarded the highest overall rating of any legal services regulator by the Legal Services Board.

Should you wish to discuss your practice’s requirements, whatever your business model, we will be more than happy to meet with you, or discuss them over the telephone.

Please email licensing@clc-uk.org

There has also been no need for an accreditation scheme for CLCregulated firms or lawyers, thanks to their specialisation and the effectiveness of our tailored regulation.

In a recent survey, three quarters of licensed conveyancers stated that the CLC provides value for money and supports them in developing their businesses. From 1 November 2016, the CLC reduced its regulatory fees rates for practices by 20%.

TAILORED REGULATION OF SPECIALIST LAWYERS PROTECTING THE CONSUMER SUPPORTING INNOVATION, COMPETITION AND GROWTH

If you would like to find out more about CLC regulation, or are considering becoming a CLC-regulated practice, then please visit the CLC website: conveyancer.org.uk/Regulation-by-CLC where you will find more helpful information, including how to qualify as a CLC Lawyer: conveyancer.org.uk/trainee-lawyer

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 30 The Bill of Middlesex

wills and probate

The Association of Probate Researchers continues to grow The Association of Probate Researchers (APR), a regulatory body for the genealogy and probate research industry, is pleased to announce that it now comprises three of the biggest probate research firms in the UK: Fraser and Fraser, Treethorpe and Anglia Research.

Treethorpe is a genealogy firm whose company values of professionalism, integrity and client focus are in perfect alignment with APR. Michelle Aldous, Head of Operations & General Manager of Treethorpe, commented that “the formation of the APR is an incredible step forward for our industry, and one that provides the opportunity for our team here at Treethorpe to demonstrate their capabilities and experience, whilst importantly, provide our current and future clients with reassurance that they are engaging a reputable firm, and a safeguard should mistakes be made.”

Formed in 1979, Anglia Research has provided genealogy services for over 30 years and has established itself as one of the industry’s top firms. The company’s Managing Director, Peter Turvey, said: “The APR is the first and only body to introduce independent regulation to a previously unregulated industry, and we are pleased to have been pivotal in securing a robust constitution for this new organisation.”

Treethorpe and Anglia Research join founding member Fraser and Fraser, a firm with over 90 years of experience, who have built a network of European offices and developed partnerships and working relationships with leading genealogists around the world.

In her capacity as APR Membership Secretary, Dunni Dickie-Johnson said: “with the continuing high rate of intestacy deaths coupled with the rise of unprofessional and criminal interest in the field of probate research, industry regulation is needed now more than ever before. It is both exciting and

encouraging to welcome as APR Corporate Members, Treethorpe and Anglia Research, two of the industry’s largest and most reputable firms, joining founding member Fraser and Fraser. I am confident that, collectively, we can raise standards across the industry for the benefit of both Solicitors and beneficiaries”.

The APR was established as a voluntary, self-regulatory body which aims to bring regulation to the industry and to offer protection to beneficiaries from hobby genealogists and amateurs. The APR safeguards beneficiaries from firms and individuals who believe that they can conduct probate research with very little or no legal training and experience. In the past few years, there have been several cases of fraudulent individuals posing as probate researchers and mis-administering estates which resulted in millions of pounds being stolen from members of the public.

The APR provides solicitors, local authorities and the general public with the assurance that if they engage a genealogy and probate research company listed on the APR Membership Directory, that this member meets a very strict code of conduct and has the relevant experience to conduct research. APR members are also subject to independent regulation by the Professional Paralegal Register (PPR) through which heirs are provided access to an independent complaints procedure and compensation policy.

For more information the on the APR and PPR, please visit www.a-p-r.org and ppr.org.uk

GENEALOGISTS AND INTERNATIONAL PROBATE RESEARCHERS Phone: 020 7832 1430

I am a Solicitor

Email: info@fraserandfraser.co.uk

Looking ffor or Missing Beneficiaries Missing Beneficiary Insurance Certificates Will Search Missing W Wiill Insurance Industry Regulation International Bankrruptcy Search Asset Search Share V Vaaluations, T Tra ransffers and Sales Probate Property Assistance

The Bill of Middlesex 31

expert witness

The importance of experts Martin Spencer QC

By Phillip Taylor MBE, Reviews Editor of The Barrister and Head of Richmond Green Chambers

“It has never been more important to highlight the critical role expert witnesses play in supporting the proper administration of justice and to establish the highest standards of best practice,” says Martin Spencer QC, who has just become the new Chair of the Expert Witness Institute (EWI).

Today, expert witnesses play a vital role across civil, criminal and family proceedings in the administration of justice. An expert witness is someone who, by his or her training, education, skill or experience, is known to have specialised expertise or knowledge and that other people may rely on their opinion.

And how right he is, because the use of expert evidence in legal proceedings has been a long-standing tradition, with the first recorded use of an expert witness in the UK courts in 1782.

“In providing independent assistance to the court by way of objective, unbiased opinion in relation to matters within their expertise, they make complex issues understandable to lawyers, judges and juries,” comments Spencer.

The Procedure Rules for court work are quite clear: the expert performs his or her duty to the court. That duty overrides any obligation to a party from whom the expert is receiving instructions. The ‘knock-on’ effect with modern litigation is that the number and types of experts are increasing. “They have become an integral part of the court process,” declares Spencer.

Many lawyers use experts in criminal proceedings in areas as diverse as accident investigations, forensic linguistics and the increased use of DNA evidence. In civil and family courts, experts cover areas such as forensic accounting, civil engineering, medical, and many more. It is recognized that, with litigation entering increasingly complex areas, the effective use of a good expert witness is increasingly important.

“There is no doubt that high quality expert evidence will continue to play an important role in all court proceedings,” says Spencer.

He adds that “there will always be a need for expert opinion about questions that are outside the knowledge, skill and experience of the court”.

To meet this challenge, instructing lawyers need to ensure they work only with experts who understand their duties within the latest procedure rules, while experts need to take responsibility for their development and training to ensure they meet the highest standards, tThe EWI oversees, so effectively as the importance of experts grows with the changing face of litigation in the 21st century.

32 The Bill of Middlesex

medical legal experts

MEDICAL LEGAL EXPERTS Dr Karen Addy

Mr Patrick Nee

Neuropsychologist

Consultant in Accident & Emergency Medicine

Tel: Team 1 – 01242 263715

Tel: Sue – 0161 8353692

Mr George Ampat

Dr David Pontefract

Orthopaedic Surgeon

Tel: 0844 5670009 0161 4852476

General Practitioner

Tel: 01623 827648

Dr Ian Ballin

Dr David Rees

General Practitioner

Clinical Psychologist

Tel: 07970 948642

Tel: 0161 7202810

Dr Simon Briggs

Mr Michael Saab

General Practitioner

Tel: 0161 8706112 07710 480943

Consultant in Accident & Emergency

Tel: 0161 7630043

Mr Richard Coombs

Dr Julian Sweetman

Orthopaedic Surgeon Tel: 0208 3989765

General Practitioner

Dr Nicole Hampton

Mr Adrian Thomson

Forensic Psychologist

General Surgeon

Tel: Team 3 - 01242 263715

Tel: France – +33 556256414

Mr Richard Harris-Jones

Dr Miriam A Wohl

General Practitioner and Orthopaedic Surgeon

General Practitioner

Tel: Claire: 01590 634459 07957 802216

Tel: 0116 2404243 07890 950087

Dr Jayne Holland

Dr Miheala M Coman

General Practitioner

General Practitioner

Tel: 01244 370080 07745 85556

Tel: 01322 552265 07722 271852

Dr Neil Andrew Kerry

Mr V G Devadoss

General Practitioner

Orthopaedic Surgeon

Tel: 0191 2816777

Tel: 0161 8399104

Mr Akhtar Khan

Mr Munthir Farhan

Orthopaedic Surgeon

Tel: 0161 4455888 0161 4453305

Dr Sanjay Lakhani General Practitioner

Tel: 07917 313339 07775 800420

Tel: 07971 816640

Orthopaedic Surgeon

Tel: 01909 590250

Mr J J Henderson Orthopaedic Surgeon

Tel: 01204 843409 The Bill of Middlesex 33

book review Sixteenth & Seventeenth chapters in the series of extracts from the...

The Rise and Fall of Legal Aid

by Alured Darlington

“I truly hope this book is published - there was a time when everybody was entitled to be represented and put forward their defence, innocent until proved guilty. Without legal aid to give clients the representation everyone deserves, what will become of our society? I honestly dread to think.

This book will be a reminder of the ‘good old days’ and an insight to young ones into the legal aid system as it was and how it should remain” Foreward by Jean Brathwaite, Legal Secretary

Chapter Sixteen

R v Sandra G Sandra G is another case where I failed dismally and she is the only one of those I represented in the Court of Appeal who still remains in custody.

Sandra G must be the unluckiest prisoner in the system. I did not represent her on her trial but was asked to do so afterwards. She was accused of importing cocaine, denied all knowledge of carrying the drug and indicated a plea of not guilty. She was indicted together with her daughter who admitted knowledge and pleaded guilty. Her trial counsel identified a sound ground of appeal but was not prepared to take the matter further after the single judge refused her application. Accordingly I did so.

At trial Sandra was supported by her daughter who while admitting her own guilt consistently, both in interview and at trial, totally denied her mother’s involvement. Sandra was only convicted after a long jury retirement, a majority verdict of 10 to 2, and the verdict only made after a jury question which was answered in a way that was at best ambiguous and at worst misleading and that was trial counsel’s proposed ground of appeal. As Sandra G was sentenced in 2011 she was sentenced under the old guidelines to 15 years

imprisonment and her daughter was sentenced to ten years imprisonment because she had pleaded guilty.

I took the case to the Court of Appeal pro bono adopting trial counsel’s submissions but without success.

Some years later the daughter provided me with some additional material about her involvement which I considered justified a further appeal.

However as there had already been one appeal there could only be second one with the support of the Criminal Cases Review Commission and the Commission were not prepared to give their backing to the appeal. A threat of a Judicial Review application of that decision was meant with the response that the decision was within the discretion of the CCRC and counsel advised that a judicial review would not succeed.

As at the present time Sandra is due to be released in three and a half years’ time and her daughter in July 2015. I remain with a strong lurking doubt about Sandra’s guilt and consider that if any one deserved the chance of a second trial it was her. However the system has pronounced against her and the only way forward I can now see is to refer her case to Cardiff University Innocent project that recently had their first success in this field.

Chapter Seventeen

Role of the Court of Appeal As a solicitor advocate I took seven cases to the Court of Appeal Criminal Division in proposed appeals against conviction all when I was in my late sixties and early seventies. One arose from a case of my own and the other six from cases where trial counsel were not prepared to do so. I was successful in three of those cases, (R v Laurence F, R v Shanika Y and a case called R v M), and unsuccessful in the remaining four which included my own case. It may be revealing that in the three cases where I was successful I briefed new counsel for the final appeal hearings and where I had retained the advocacy myself I was not successful.

I have no record of how many appeals against sentence I appeared in as a solicitor advocate but I would estimate my

success rate in these was about 50%.These included both my own cases and cases where trial counsel was not prepared to take them to the Full Court.

Both single judges and the Full Court exercise their roles under enormous pressure. Single judges have to fit their opinions round their already busy schedules and the Full Court has long lists awaiting its attention.

But the firm impression I have is that, because of this, the papers are not always read by all three members of the Full Court. The one giving the judgement clearly has done so but questions raised by the other two give rise to the suspicion that in some cases the Court is not a Full Court but effectively a One Judge Court.

...other pages will be published in forthcoming the Bill of Middlesex or if you can’t wait, go online: http://issuu.com/benham/docs/the-rise-and-fall-of-legal-aid 34 The Bill of Middlesex

Full house With a comprehensive range of property searches all under one roof, we’ve got you covered.

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More than you might expect