Winter Issue 2018
SurreyLawyer SURREY’S TIME TO SHINE The Inaugural Surrey Law Society Awards 20th September 2018 at The Mandolay Hotel, Guildford
Inside this issue:
■ Free Wills ■ Conveyancing ■ GDPR ■ SLS Awards 2018
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To take your firm to new he eights, visit www ww ww w.perfectportal.co.u w.perfectportal.co.uk perfectportal co uk u or call 0845 556 0077
Contents Intro 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
ADVERTISING AND FEATURES EDITOR Anna Woodhams
STUDIO MANAGER
4
List of Officers
5
President’s Jottings
6
SLS CPD PROGRAMME 2018
7
CEO Report Awards
8 -9
SLS Awards 2018
10
Council Member’s Report
11
Law Society Report
Reports
Local Issues
John Barry
12 -15
ACCOUNTS Joanne Casey
Local News Business
MEDIA No.
16
1517
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Business Continuity Planning- 8 Steps To Success New BTL rules mean higher tax bills for many Personal Injury
PUBLISHED January 2018 © The Surrey Law Society - Benham Publishing
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The future of personal injury law is online Management
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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.
Mediation – the better way to resolve dispute? Articles
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Terminally ill man loses right to die fight
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The Court of Protection Rules 2017
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Are you GPDR ready? Property
Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.
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DISCLAIMER
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Free Wills Month is an oppoortunity for both solicitors and the public
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Building a future where no one has to cope with a mental health problem alone
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We are stronger together – people and trees
The Surrey Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation. All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice. COVER INFORMATION The cover image: The SLS Awards 2018, 20th September.
Copy Deadlines Spring 2018 Issue Summer 2018 Issue Autumn 2018 Issue
2nd March 5th June 4th September
Free Wills
Charity 26
When you’re gone.... Training
27
The Productivity Gap... Conveyancing Focus
28 30
Anti-Money Laundering Guiding and supporting specialist property lawyers with tailored regulation
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Conveyancing checklist: Technology
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Email: Tel:
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Anyone wishing to submit editorial for publication in Surrey Lawyer please contact Helen Opie, before copy deadline. Email: Tel:
Advice to law firms on data transfer Forensics
Anyone wishing to advertise in Surrey Lawyer please contact Anna Woodhams before copy deadline. anna@benhampublishing.com 0151 236 4141
“It’s the economy stupid!”
Why “cut-off” matters in drug testing Book Review Judicial College Guidelines for the assessment of general damages in personal injury cases
helen.opie@surreylawsociety.org.uk 0333 577 3830
SurreyLawyer 3
Officers
KEY OFFICERS PRESIDENT JAMES SCOZZI Elite Law Solicitors 1 Fetter Lane London EC4A 1BR DX: 14 London Chancery Lane Tel: 020 3440 5506 Fax: 01923 219416 Email: jscozzi@elitelawsolicitors.co.uk
COMMITTEE MEMBERS
LAW SOCIETY COUNCIL MEMBERS
MARK GOUGH Solicitor 22 Woodlands Road, Little Bookham, Surrey KT23 4HF Tel: 01372 230786 Email: mark@markgoughlaw.com
SUSHILA ABRAHAM S Abraham Solicitors 290A Ewell Road, Surbiton KT6 7AQ Tel: 020 8390 0044 Email: office@sabrahamsolicitors.co.uk
MAREK BEDNARCZYK Hart Brown Resolution House, Riverview, Walnut Tree Close, Guildford, GU1 4UX DX 2403 Guildford 1 Tel: 01483 887704 Fax: 01483 887758 Email: msb@hartbrown.co.uk
JOHN PERRY
DANIEL CHURCH TWM Solicitors LLP. 65 Woodbridge Road, Guildford GU1 4RD DX 2408 Guildford 1 Tel: 01483 752700 Fax: 01483 752899 Email: daniel.church@twmsolicitors.com
VICE PRESIDENT VICTORIA CLARKE Stowe Family Law LLP The Bellbourne 103, High Street Esher, KT10 9QE Tel: 01372 571126 Email: Victoria.Clarke@stowefamilylaw.co.uk
HON SECRETARY KIERAN BOWE Russell-Cooke Solicitors Bishops Palace House, Kingston Bridge, Kingston upon Thames, Surrey, KT1 1QN DX 31546 Kingston upon Thames Tel: 020 8541 2041 Fax: 020 8541 2009 Email: kieran.bowe@russell-cooke.co.uk
HON TREASURER NICK BALL Howell Jones Solicitors 75 Surbiton Road, Kingston upon Thames,
Tel (Office): 020 8549 5186 Tel (Fax): 020 8549 3383 Email: nick.ball@howell-jones.com
89-91 Clarence Street Kingston upon Thames, KT1 1QY DX 31524 Kingston upon Thames Tel: 020 8549 7444 Fax: 020 8547 2117 Email: john.perry@palmerssolicitors.co.uk CHIEF EXECUTIVE & MAGAZINE EDITOR Helen Opie Surrey Law Society c/o Russell-Cooke Solicitors, Bishop's Palace House, Kingston Bridge,
MARALYN HUTCHISON Kagan Moss & Co 22 The Causeway Teddington TW11 0HF Tel: 020 8977 6633 Fax: 020 8977 0183 Email: maralyn.hutchinson@kaganmoss.co.uk
Kingston-upon-Thames, KT1 1QN
GLORIA MCDERMOTT Surrey Law Society, c/o Russell-Cooke Solicitors, Bishop's Palace House, Kingston Bridge, Kingston-upon-Thames, Surrey KT1 1QN DX 94652 Virginia Water Email: gloria.mcdermott@virginmedia.com
CONVEYANCING & LAND LAW
JULIE ROWE Russell-Cooke Solicitors Bishops Palace House, Kingston Bridge, Kingston upon Thames, Surrey, KT1 1QN DX 31546 Kingston upon Thames Tel: 020 8541 2023 Email: Julie.Rowe@russell-cooke.co.uk IAN WILKINSON The Castle Partnership 2 Wey Court, Mary Road, Guildford, Surrey GU1 4QU Tel: 01483 300905 Email: ian@castlepartnership.co.uk MUMTAZ HUSSAIN The Legal Consultant M: 07983 488 351 mumtaz@thelegalconsultant.org.uk
Surrey, KT1 2AF DX: 57715 Surbiton
Palmers Solicitors
GERARD SANDERS Hart Brown Resolution House, Riverview, Walnut Tree Close, Guildford, GU1 4UX DX 2403 Guildford 1 Tel: 01483 887704 Fax: 01483 887758 Email: gts@hartbrown.co.uk
Web: www.surreylawsociety.org.uk Tel: 0333 577 3830 Email: helen.opie@surreylawsociety.org.uk
SUB COMMITTEES Gloria McDermott Maralyn Hutchinson STRATEGIC PLANNING & FINANCE Kieran Bowe Nick Ball Daniel Church James Scozzi Marek Bednarczyk SOCIAL Daniel Church (Chair) Gloria McDermott John Perry* Julie Rowe *Non-Committee Member.
YOUNG SURREY LAWYERS Madeleine Gooding (Chair) Imogen Heywood Jessica Morton Will De Fazio-Saunders Alexander Bishop Victoria Clarke Email: youngsurreylawyers@hotmail.com Twitter: @YSL_Live LinkedIn: linkedin.com/groups/4515609
membership details Annual Subscriptions:
£98 per person, per year.
Corporate Subscriptions:
(20+ fee earners) £1,850 per year
Solicitor
(not in private practice) £60
Solicitor
(not practising) £35
Honorary Membership:
free
Associate Membership:
free - no voting rights
4 SurreyLawyer
To apply for membership please contact: Helen Opie, Chief Executive Surrey Law Society, c/o Russell-Cooke Solicitors, Bishop's Palace House, Kingston Bridge, Kingston-upon-Thames, KT1 1QN Web: www.surreylawsociety.org.uk Email: helen.opie@surreylawsociety.org.uk Tel: 0333 577 3830
Editorial
President’s Jottings Winter 2018 It’s all change at the Surrey Law Society. New CEO, new President and for the first time we will be running the SLS Awards.
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or the past decade Sue Seakens has been CEO of the Surrey Law Society. Sue has now retired and she will undoubtedly be sorely missed, however where one door closes another opens and am pleased to welcome Helen Opie as our new CEO. I have no doubt that she will pick up where Sue left off and push the SLS forward. That is not the end of the changes this year with the introduction of the SLS Annual Awards.
SLS Awards This year we will be running the first ever SLS Awards. The awards will showcase the very best of Surrey’s legal talent. At a regional level it is vital that we celebrate and identify sparkling talent and success in a variety of areas, both on an individual and firm level. The SLS Awards are the perfect opportunity for Surrey Lawyers to show and set the benchmark for best practice in the continuing and challenging landscape that is legal practice. Firms and individuals practicing in Surrey are invited to submit nominations in one of the 11 award categories which you can read about later in this issue. You will also find details of how to enter and what the criteria for each award is in this issue of the Surrey Lawyer. The opening date for the submission of nominations will be Monday 15th January and the closing date will be Friday, 13th April 2018. The Awards will be presented at a prestigious black tie gala dinner on 20th September 2018. On a personal note, I know there are great lawyers and firms in Surrey and hope many of you will submit a nomination and be the first to win one of these inaugural awards.
home. The cost to provide the care, free of charge, to the local community is over £9.5 million a year (In the financial year 2016-2017, they were able to spend 84 pence of every £1 on care and support), 74% of which is funded by the local community with the remainder coming from the NHS. They do a lot of excellent work and are very much a worthy cause deserving of the SLS’ support.
What does the future hold With Christmas behind us and Brexit continuing to take the headlines, as well as divide opinion, it is important to show the rest of Europe that we remain open for business. The changing political and legal landscape (particularly in relation to proposed changes to how we are to be regulated) make our reputation as a profession as pivotal as ever. Our integrity, independence and ethical standards cannot be allowed to erode. There are many more changes afoot with consultations coming thick and fast, the improvements in A.I. technology, the expansion of fixed costs in a variety of areas, the almost daily news of firms across the country merging and the substantial proposed changes in relation to the route Solicitors must take to qualify. No doubt some of these changes will cause many in the profession to worry, however change cannot and must not be shunned away from as it can also bring opportunity, and there is no doubt that the future will bring opportunity to Surrey Lawyers, as well as to Lawyers in the rest of the country. For now, I hope everyone had a Merry Christmas and would like take the opportunity to wish you a very prosperous New Year. ■
JAMES SCOZZI SLS President 2017
Princess Alice Hospice I gave a lot of thought to my choice of charity for my presidential year and have chosen the Princess Alice Hospice in Esher. The PAH was founded in 1980 and now cares for over 2,500 patients, their families and carers every year, and nearly 800 patients at any one time receive their care at SurreyLawyer 5
Editorial
S L S
C P D P R O G R A M M E 2 0 1 8
All half-day courses will be held at Denbies Wine Estate, London Road, Dorking RH5 6AA from 2.00pm - 5.15pm
AREA
DAY, DATE & TIME
TOPIC
SPEAKER
SPONSOR
Property
Wed 17th January 2018 (pm)
Residential Property Law – Are You Up To Date?
David Keighley
PC
Wed 31st January 2018 (pm)
Ensuring Added Value in Estate Administration and Planning
John Bunker
HFS Milbourne
Fam
Wed 21st February 2018 (pm)
Hot Topics in Family Law
Mena Ruparel
HFS Milbourne
Property
Wed 28th February 2018 (pm)
Conveyancing Update 2018
Richard Snape
Index
Man
Wed 7th March 2018 (pm)
Data Protection & GDPR
Tania Tribius
PC
Wed 21st March 2018 (pm)
Private Client Tax Planning Update John Bunker 2018
HFS Milbourne
Property
Wed 25th April 2018 (pm)
A Practical Approach to Dealing with Key Tricky Conveyancing Issues
Stephen Desmond
Index
PC
Wed 16th May 2018 (pm)
Contentious Probate and Inheritance Act Disputes
Richard Land
HFS Milbourne
Property
Tue 5th June 2018 (pm)
Lease Extension on Residential Property under LRHUDA 1993
Hannah Mackinlay
CoCo
Wed 20th June 2018 (pm)
Company & Commercial – Latest News
Keith Lewington
Property
Wed 12th September 2018 (pm)
SRA New Code of Conduct – Impact and Implications for Conveyancers
Denis Cameron
Man
Wed 26th September 2018 (pm) Compliance Update 2018
PC
Wed 3rd October 2018 (pm)
Protecting the Assets of the Elderly
John Thurston
HFS Milbourne
Man
Wed 31st October 2018 (pm)
Maximising Profits for Law Firms
Peter Scott
HFS Milbourne
Index
Matt Moore
2018 CONFERENCE DATES
PRIVATE CLIENT CONFERENCE – THURSDAY, 20th SEPTEMBER 2018 – 6 HOURS CPD
CONVEYANCING & LAND LAW CONFERENCE – THURSDAY, 18th OCTOBER 2018 – 6 HOURS CPD
6 SurreyLawyer
Editorial
CEO REPORTWinter 2018
It is with a great deal of excitement that I write this, my first CEO Report since taking on the mantle of Chief Executive. I am fortunate to have had around a month of handover with Sue prior to her retirement, so have seen what fantastic work she has done for the Society over the past 10 years and I very much hope I can continue in this vain.
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that this, along with our Season Ticket offer, will make the Surrey y the time that this issue of the Surrey Lawyer reaches you, Law Society CPD programme even better value to members. I we will have come to the end of the festive season and be looking to the year ahead. With this in mind, I wanted to update would like to thank our sponsors for their continued support of the programme, without which we could not continue to offer you on some of the exciting things happening for Surrey Law Society members in 2018, but first and foremost wish you a very such competitive attendance fees at these courses. Happy New Year. We will also be continuing our programme of Social Events across the year, with the Legal Brain of Surrey Quiz, as As James mentioned in his jottings, we are thrilled to be launching the SLS Awards this year, which So, there is plenty well as our Guildford and Kingston Area Lunches on the agenda again. Please do look out for further information are taking place on the evening of Thursday 20th to look forward to on these and other Social Events as and when they are September at the Mandolay Hotel in Guildford. in 2018 and I am available over the coming months. We hope that this will be a chance for members thrilled to be to showcase their talent as well as raising So, there is plenty to look forward to in 2018 and I am awareness of the great work being carried out by working with our thrilled to be working with our new President, James and the profession across the County. The event itself new President, Vice President, Victoria on the projects ahead. Very will be a fantastic opportunity to celebrate the fortunately for me, Elaine Jacobs, who worked with Sue for James and Vice success and achievement of both individuals many years, will be staying on with SLS and working President, Victoria and firms in Surrey and we hope to put on closely with me on the CPD programme, conferences and on the projects a thoroughly enjoyable evening. Further membership administration. I hope to see many of you at ahead. information on the Awards can be found below our forthcoming courses and events. Please do come and and overleaf and also on the Surrey Law Society say hello, and in the meantime, don’t hesitate to get in website, so please do have a look and get ready to submit touch if there is anything at all that Elaine or I can help with. your nominations from 15th January. As always, we will be offering our comprehensive programme of HELEN OPIE, CPD courses, shown here, to help you to fulfil your commitment CEO Surrey Law Society t: 0333 577 3830 to Continuing Competence. The courses feature a range of top e: helen.opie@surreylawsociety.org.uk speakers on a variety of topics covering Private Client, Property, Commercial and Family Law, as well as sessions on GDPR, Maximising Profits and Compliance. This year, we are particularly pleased to offer SLS members a new discount where you can buy one course and get a second at half price. We hope
The inaugural Surrey Law Society Awards will take place on Thursday 20th September 2018 at the Mandolay Hotel Guildford, and will showcase the very best of Surrey’s legal talent.
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e would like to invite firms and individuals, who are practising in Surrey, to submit nominations in one of the 11 award categories shown overleaf. Nominations can be made by sending a brief cover letter, followed by a submission of 400 - 800 words, to helen.opie@surreylawsociety.org.uk. You are free to submit yourself for nomination, if you so choose. All nominations will be treated in the strictest of confidence. Your cover letter must provide the following information: 1.The award you are applying for 2.Your name 3.Your firm name 4.Contact name & telephone number 5. No more than 100 words as to why you or your firm are a worthy winner
Your submission must consist of between 400 and 800 words, setting out your achievement in relation to the award/s for which you are applying. Please ensure you have read the award criteria for your chosen award overleaf and on the Surrey Law Society website (www.surreylawsociety.org.uk) The opening date for the submission of nominations is Monday, 15th January and the closing date is Friday, 13th April 2018. The shortlisted persons/firms will be contacted in the week commencing 14th May 2018 and will be offered priority tickets at a preferential rate to attend the Awards Ceremony Dinner on Thursday 20th September 2018. If you are interested in sponsoring one of the SLS Awards, or the event itself, we have a variety of packages available. For further information on these or any other opportunities to support the Surrey Law Society, please contact Helen Opie on helen.opie@surreylawsociety.org.uk.
SurreyLawyer 7
THURS S DAY 2 0 SEPTEM MBE R MBER 2 01 8
AWA R D S
CEREMONY 2018
AWA R D C AT E G O R I E S
Law Firm of the Year
Lawyer of the Year
Rising Star of the Year
Pro Bono Lawyer of the Year
Property Lawyer of the Year
Private Client Lawyer of the Year
Corporate/ Commercial Lawyer of the Year
Clinical Negligence/ Personal Injury Lawyer of the Year
Client Care Aw ward
Business Growth Award
Technology & Innovation Award
TH E MANDO L AY H O TE L , GUILD F OR D G O T O S UR R E Y L A W S OCI E T Y. O R G . U K F O R MO R E IN F O R M ATIO N 8 SurreyLawyer
Awards
AWARDS CRITERIA Law Firm of the Year
Private Client Lawyer of the Year
The firm must be able to show significant progress and development as a business within the last 12 months. Evidence of this can include details of growth, strategy, financial performance, employee development, training and diversity.
The judges will accept nominations based on one outstanding matter worked on during the last year or on the overall performance of the individual during that year.
The firm must also be able to demonstrate that you have a rounded approach to the delivery of legal services, and that you are working in the best interest of not only your clients but the profession overall.
The nominee must be able to demonstrate that he/she has delivered exceptional client outcomes. Please explain the single greatest achievement of the past 12 months in one or more of the following: client service, innovation or exceptional client outcome/s. Please provide evidence in support.
Lawyer of the Year
Clin Neg/PI Lawyer of the Year
The nominee must be a Lawyer who goes “above and beyond” in both his/her colleagues’ eyes as well as those of the clients. This might be demonstrable in a specific case or work done in relation to a particular area of Law. The nominee may also have proposed and put in place a business solution that proved beneficial to the firm overall or to his/her client, or both. The nominee should also be able to show strong management and leadership skills.
The judges will accept nominations based on one outstanding matter worked on during the last year or on the overall performance of the individual during that year from those who practice personal injury and/or clinical negligence on either the Claimant and/or Defendant side.
Rising Star of the Year The nominee must be under the age of 32 at the time the application is submitted. The nominee needs to show a sizeable level of involvement within the profession and/or the area in which they practice, and provide evidence of any significant obstacle/s they have overcome. Evidence in relation to how and why the nominee has “risen” over the past 12 months must be provided. Pro Bono Lawyer of the Year The nominee must be able to show a considerable contribution to pro bono work over the past 12 months. Said work could be for a specific client, local community etc. Provide evidence on one specific project that you have worked on that shows you merit this award. Corporate/Commercial Lawyer of the Year The nominee must be able to demonstrate that he/she has delivered exceptional client outcomes. Please explain the single greatest achievement of the past 12 months in one or more of the following: client service, innovation or exceptional client outcome/s Nominees will be accepted from Lawyers working in corporate finance, private equity, banking, insolvency, Intellectual Property and other commercial disciplines. Property Lawyer of the Year We will accept entries from both commercial and residential property Lawyers and landlord and tenant specialists. The nominee must be able to demonstrate that he/she has delivered exceptional client outcomes. Please explain the single greatest achievement of the past 12 months in one or more of the following: client service, innovation or exceptional client outcome/s. Please provide evidence in support.
The nominee must be able to demonstrate that he/she has delivered exceptional client outcomes. Please explain the single greatest achievement of the past 12 months in one or more of the following: client service, innovation or exceptional client outcome/s. Please provide evidence in support. Technology & Innovation Award The use of technology to improve efficiency and deliver legal services in new ways is a must for many law firms. This award is for those who can show innovation as well as integration of new IT solutions in the provision of services for clients. The nominee will have adopted a particular technology based tool, technique, or system that has created a significant competitive advantage in the past 12 months. Client Care Award This award will be handed to either a firm or individual who can show outstanding commitment and service in client care. The nominee must show that they have exceeded expectations of basic client care and professionalism. The entry should describe your client service model, including how it has helped to increase profitability of the firm and business levels through client word of mouth. The nominee must explain when it was implemented and how performance is measured. The nominee must submit an application which is accompanied by evidence of the quality and consistency of the client care implemented, for example, client testimonials. Business Growth Award The nominee must be able to demonstrate exceptional growth in turnover, practice area, geographical spread or a combination of all of these. The purpose of this award is to reward the entrepreneurs within our industry.
Frequently asked questions Is it free to enter? Yes. Our firm has many individuals doing excellent work. Is there a limit on how many entries can be submitted? No, but you will need to complete separate entries for each firm/ individual category you choose to enter. Can non-solicitors enter? Yes, we will accept entries from Solicitors, Barristers, Legal Executives and Licensed Conveyancers, so long as the firm and/or individual is a member of the Surrey Law Society.
Can I nominate someone for an individual award if I don’t work in a Law Firm? Yes. When will the winners be announced? The winners will be announced at the Awards Dinner and Ceremony on Thursday, 20th September 2018, at the Mandolay Hotel, Guildford. Who can attend the Awards Dinner? Tickets will be available to everyone - you don't need to have entered the awards. Tickets will be available from 1 March 2018
SurreyLawyer 9
Reports
Council Member’s Report – Congratulations to James Scozzi, the new President of SLS, and Victoria Clarke, the Vice President, and good to see that the Society has embraced another Junior Solicitor as an office holder. Photo: Sushila Abraham
Thanks to Sue Seakens, our former CEO, for her time at SLS and for her work in shaping the Society and a welcome to our new CEO, Helen Opie I have been very busy attending meetings at The Law Society (TLS), not only Council Meetings, but also Membership Board Meetings, and in July, I was able to raise the profile of SLS at the Presidents and Secretaries Conference, showing how we have opened up our membership to Barristers and Legal Executives. There are many changes taking place at TLS, which, as we have seen, is becoming more member-focussed, and I hope you all have seen those changes. As you are aware, TLS had carried out a review of Governance, and Council approved the appointment of Robert Bourns as the Chairman of the new Main Board. Over 2018, the rest of the Board will be appointed. TLS has also carried out a brand refresh project, which was approved by Council on 7th December, and in the new year you will see a different logo. TLS has been engaging with the Government and building relationships with external stakeholders regarding regulation, access to justice and Brexit.
been postponed until February 2018, to allow for further engagement with court users. No doubt conveyancers will have read about the Brabners judgment, where the tribunal agreed with HMRC that electronic searches formed part of the overall service provided to a client by a solicitor and therefore were not disbursements, and VAT had to be charged; TLS is drafting a Practice Note on this. The Society has 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. I would urge all Members to register themselves on My Law Society and to update their profile too. All the Practice Notes from TLS can be found in your My Law Society. As always, if you have any queries or issues which you would like to be taken up with TLS then please contact John or myself so that we can assist you. I would like to wish all of you a pleasant break as we approach the end of 2017 and welcome in 2018.
Sushila Abraham
TLS has been lobbying on behalf of members in relation to various matters. HMCTS has announced that the pilots for flexible hours has
Another Year of YSL – What did we get up to? This has been another busy 12 months for the Young Surrey Lawyers. We have increased the size of our committee, so that we can try to hold more regular events each year. In 2017, we focused on trying to increase our membership, and spread the word to local firms.
Photo: Young Surrey Lawyers Christmas Event
We took the time to design a flyer explaining what we do, which has been circulated, and we have decided to try and host four events each year. In March, we hosted an event with Chadwick Nott, a recruitment agency, to help trainees and newly qualified solicitors learn about the current employment market, and what areas of law they could be looking at today. We also hosted our ever-successful autumn event, which was Halloween-themed for the second year running. It was very well-attended, with students, trainees, and newly-qualified solicitors getting a chance to socialise with each other. Quite a few of our attendees were the only trainee in their firm, and so it gave them a great opportunity to meet with their peers in a relaxed environment. We usually get a lot of new
10 SurreyLawyer
members attend the Halloween event, and so it allows us to meet everyone in person as well Our final event in 2017 was our Christmas event on 7 December. After receiving feedback from last year, we changed the venue to The Cannon in Guildford. There was a Christmas Jumper competition and the event was kindly sponsored by Guildford Chambers, so all ticket fees were donated to Shelter. In 2018, we are hoping to have an employment-themed event in the Spring, a Summer BBQ, our Halloween newbies-night, and our Christmas drinks. Keep your eyes peeled for our emails, and we look forward to seeing you all there!
Reports
Law Society Report Time and time again, as I am out in the region informing members of the work The Law Society undertakes on their behalf, members say “I had no idea that the Society did that”. Photo: Bhavni Fowler
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t is certainly true to say that there is a huge variety of areas and interests that the Society is involved in, both in representing, promoting and supporting the members, and in influencing and lobbying stakeholders on behalf of the profession and the public. With that in mind, I would like to use this opportunity to shine a light on some of the important work that the Society is currently focussing on your behalf. In this edition, I have posed a few questions to Paul Wilson, Head of the Law Society's Regulatory Affairs unit: 1. What does your team do? I am the Head of the Regulatory Affairs Unit at the Law Society. My team represents the views of the profession on any issue relating to the regulation of solicitors. We cover education and training, regulatory processes, professional ethics, and professional indemnity insurance. My team works closely with the Regulatory Affairs Board, which sets the Law Society’s policy on regulatory matters. 2. What is your team currently working on? The profession is facing a significant amount of regulatory change at the moment, so things are busy! The biggest change is the SRA’s review of the handbook. The review started last year and the SRA has recently issued another handbook consultation, which the Society responded to on 7th December. The SRA is aiming to slim down the handbook. Of course a shorter handbook would be a good thing, but only if this doesn’t come at the expense of clarity for practitioners. Of greater concern is the SRA’s approach, as part of its handbook review, to removing key client protections. For example, by allowing solicitors to deliver unreserved legal services to the public from unregulated entities. This change would create two tiers of solicitors. If you see a solicitor at a regulated firm then you get the full range of regulatory protections. If you see a solicitor at an unregulated firm then you might not get the same level of professional indemnity insurance, or access to the compensation fund. The Law Society is opposed to these proposals which remove client protections and could erode trust in the profession. The SRA is also consulting on requiring firms to publish price and service information on their websites for some areas of law, for example conveyancing. The Law Society responded on 6th December to highlight the risks of imposing a onesize-fits-all solution on the profession. This is supported by research commissioned by the Law Society on consumer behaviour. Solicitors already do a tremendous amount of work to ensure that clients understand what they will pay, and what they can expect for their money. Helping clients to make informed choice isn't just about more information on websites, it's about providing the right information at the right time.
The last sizeable change that I’ll mention here is the Solicitors Qualifying Exam. The SRA has decided to introduce a two-stage examination that every new entrant to the profession will need to pass from 2020 onwards. Throughout the consultation process the Law Society has emphasised the importance of maintaining high standards and of ensuring that a diverse mix of applicants can become a solicitor. 3. What is on the horizon for your team? My team handles the relationship with the Solicitors Disciplinary Tribunal. The tribunal currently requires cases to be proved beyond reasonable doubt, but some have recently questioned whether this standard of proof should change, and this policy may be reviewed in the future. The Law Society believes that a case before the tribunal should be proved beyond reasonable doubt, as a solicitor can lose their livelihood if found guilty. There is an ‘inequality of arms’ between the SRA prosecuting a case and an individual solicitor, so we don’t think it is appropriate to lower the standard. We have published a discussion paper on this. 4. How can members engage with you on these topics? My team are always happy to be invited along to meetings of local law societies, to hear your thoughts about regulatory developments. If you want to get in touch directly, you can email us at regulation@lawsociety.org.uk More immediately, the SRA consultations on price and service transparency and the Handbook changes run until 20th December. We would encourage members to contribute their own views directly to the SRA via the SRA website. You can find the Law Society response to the SRA Handbook consultation at - https://www.lawsociety.org.uk/policycampaigns/consultation-responses/sra-consultation-lookingto-the-future-phase-two-of-our-handbook-reforms-lawsociety-response/ You can find the Law Society’s response to the SRA’s “Better Information More Choice” consultation, and our research on how people choose legal service providers, at http://www.lawsociety.org.uk/policy-campaigns/consultationresponses/sra-consultation-looking-to-the-future-betterinformation-more-choice-law-society-response/ If you would like further information on the activities mentioned above, or any other areas of interest, please do not hesitate in contacting me.
Bhavni Fowler Relationship Manager The Law Society Email: bhavni.fowler@lawsociety.org.uk Tel - 07773 254 543
SurreyLawyer 11
Local News
New appointment at HFS Milbourne signals further expansion HFS Milbourne, the Surrey-based financial specialist has appointed John Hutton-Attenborough to the senior position of Chartered Wealth Planner with immediate effect. Photo: John Hutton-Attenborough
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ohn will be responsible for managing HFS Milbourne’s expanding high net worth client portfolio as well as further developing the company’s professional connections, particularly in the legal sector where he is a certified Society of Trusts and Estate practitioner (STEP) and also a Society of Later Life Advisers (SOLLA) accredited member.
There are significant plans in place for further expansion of the business and I am delighted to be able to play an active part in that growth and development too,” said John.
John has over 30 years’ experience in financial services, most recently spending three years advising high net worth clients in a similar role at Arbuthnot Latham private bank. Prior “HFS Milbourne is highly respected within the industry and I am very much to that John has held various positions at Berry Birch and Noble, PKF looking forward to joining the team.
Accountants, John Scott and Partners and Barclays Wealth Private Bank. Colin Hayden-Cook, Joint Managing Director at HFS Milbourne said “With John’s background in private banking and his extensive experience and knowledge he will be an excellent addition to our team. We are looking forward to working with John as we expand our services and reach across the south east.”
Budget news – was there anything for the legal sector? The Chancellor Philip Hammond took to the despatch box on Wednesday 22nd November to deliver his second Budget of 2017, and it could be said that autumnal budget was a damp squib in terms of changes for businesses with little room for the government to manoeuvre.
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owever, the headline grabbing SDLT changes will be of interest to conveyancing law firms.
The OBR’s forecasts for growth were revised down significantly from the March forecast and this reduction in anticipated growth prevented the naturally cautious Chancellor from providing further business incentives and reliefs. The Budget seemed to be more a case of celebrating what the Chancellor ‘didn’t do’ for example not lowering the registration threshold for VAT (to avoid risking the antagonism of ‘white van woman/man’ again!) and not lifting the freeze on fuel duty. The Chancellor did announce that the government would be bringing forward measures to ensure business rate increases are calculated based on the lower CPI rate of inflation rather than RPI in 2018, and claimed that this measure would be worth over £2billion to small businesses. It would be hoped that this will provide a little help for those in the legal sector who maintain a presence on the high street. The government’s SDLT Changes could provide a boost for the legal sector The Budget headlines were saved for the abolition of stamp duty land tax (SDLT) for most first time buyers. This, along with the commitment to building new homes, will be welcomed by legal practices across England where for many, conveyancing services form the bed-rock of the firm. The changes to stamp duty land tax will work thus: • SDLT free for first-time buyers purchasing homes up to £300,000
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• For first-time buyers purchasing a property up to £500,000, SDLT will only be payable after the first £300,000 and at a rate of 5% from £300,000-£500,000. The Treasury estimates that the changes to SDLT will help over one million first-time buyers get onto the housing ladder over the next five years with the average SDLT bill for the first-time buyer in London halving from £10,500 to £5,500. First-time buyers in Wales will benefit from the changes until April next year, when the matter will be devolved to the Welsh Government with the introduction of a land transaction tax. If the government’s aim of creating more houses and households works, that would signal positive news for firms dealing with conveyancing, planning, construction, property and ancillary disciplines. The Chancellor returned to a favourite topic of his predecessor George Osborne - the issue of tax avoidance. The government is aiming to raise £4.5 billion by 2022-2023 from tax avoidance after introducing a package of measures. The Chancellor didn’t specify what would be in the ‘package of measures’ and as is always the case with the Budget - the devil will be in the details which will be released in due course. If we take time to review the Chancellor’s Budget from a business stand point, it’s clear that if the government want to help business further, then the Spring Statement needs to contain creative ways of supporting small to medium sized practices.
Local News
Martin Searle Solicitors grows their specialist Employment Law & Community Care Law teams.
Photo: the team at Martin Searle Solicitors
Brighton-based, niche law firm, Martin Searle Solicitors, are delighted to welcome seven new people to their Employment Law, Community Care Law and Support teams.
S
olicitor, Andy McKay and Sally Ireland, in-house Barrister, join the Community Care Law team to provide Services for Professional Deputies and Attorneys. Sally, a Cambridge and London School of Economics (LSE) graduate, was called to the Bar in 2002 and is a human rights and public law specialist. She previously practised in Community Care Law at Garden Court Chambers. Andy also teaches law at the University of Brighton and previously supported elderly and vulnerable clients, working as a benefits and money advice specialist for a local charity. Solicitors, Nicole Tovey and Christianne Silverwood, join Martin Searle’s Employment Law department. Nicole and Christianne are experienced solicitors and undertake Settlement Agreement work. Nicole previously worked at a
commercial law firm in Tunbridge Wells. Christianne is also qualified as an HR practitioner. New additions to the Support team include Marketing Assistant, Chloe Murphy, who is a University of Brighton English Literature graduate. Phillippa Leedham and Ross Spiller join as Team Assistants to provide a friendly and approachable first point of contact for all clients. Fiona Martin, Marketing Director at Martin Searle Solicitors, says: “This is an exciting time for our firm. We have new opportunities for expansion due to the introduction of the Care Act 2014 and the scrapping of Employment Tribunal Fees. We will continue to grow in the next year to meet client demand for our specialist services.’’
Thomas Bennett wins SLS Prize for highest results at University of Law Awards Evening Photo: Victoria Clarke presents the SLS Prize for highest results to 2017 winner Thomas Bennett
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he Awards Evening for the University of Law, Guildford took place in November 2017 and the Surrey Law Society again sponsored the prize for the highest results in June examinations. SLS Vice President Victoria Clarke presented the prize to this year’s winner, Thomas Bennett, at the Awards Evening, which saw 70 people in attendance.
Sue Hansel, Senior Tutor at The University of Law, said “Thank you once again for sponsoring this award. The Awards Evening is a lovely event much appreciated by the winners and their families and we are very grateful to the Surrey Law Society for its support.”
SurreyLawyer 13
Local News
Downs Solicitors LLP celebrates win at 2017 Law Firm Services Awards Downs Solicitors' Residential Conveyancing team is celebrating after been crowned the “Best Small Conveyancing Firm (South)” in the 2017 Law Firm Services (LFS) Awards. Photo: From left to right: Dan Montagnani, Managing Director at Groundsure, an award sponsor, Christine Eves, Mila Dudley and Richard Cunningham from Downs' Residential Conveyancing team, Rhonda Treacy-Hales of Legal Eye, an award sponsor, and comedian and physician, Dr Phil Hammond
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hey beat off stiff competition from last year's winners, A V Rillo, who were also voted No. 1 Conveyancing Firm in the country by the Sunday Times in 2015. Downs’ success follows on from last year's achievement when the Residential Conveyancing team were highly commended in the category of “Conveyancing Firm of the Year London & the South East" in the LFS Awards. They were also awarded “Best for Customer Service” in the Searchflow Property Forum Awards in 2015. In announcing the results, the judges commented "Another excellent entry submission from a firm that ‘does what it says on the tin’. They have a clear focus on the local market and a desire to provide excellent customer service whilst keeping up to date with rules and regulations." Partner, Richard Cunningham who manages the Dorking Residential Property team accepted the Award on behalf of Downs Solicitors. He attended the awards ceremony which took place at the Vox Centre, Resorts World, NEC Birmingham on Wednesday 20 September 2017. He was joined by colleagues, Christine Eves and Mila Dudley.
Richard said: “We are incredibly proud to have received this award which saw us go up against a number of impressive firms. To have the team’s work recognised on a national level is testament to their hard work and dedication in ensuring we consistently give our clients a first class service. The Awards celebrate conveyancing firms across the country that offer exceptional levels of client service and innovation. In order to win an award, firms must undergo a rigorous judging process, including a mystery shopping exercise, client feedback surveys and a telephone interview. The LFS Awards are firmly established as the event of the year amongst the conveyancing community and are highly prized because they are judged by a diverse cross section of industry peers and use a range of methods to test the claims of each entrant. The award was presented to Richard Cunningham by Dan Montagnani, Managing Director at Groundsure, who sponsored the award.
FORTY YEARS AND COUNTING! Sarah Thomas celebrates 40 years at Downs Solicitors LLP
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Rise up, prove your skills and make some dough for justice! The London Legal Support Trust will again be hosting The Great Legal Bake in 2018 and is hoping to exceed the £33,000 raised by the 2017 event. Whether your penchant is pastries, pies, pavlova or panettone why not sign up and show off your signature or showstopper bake? Over 30 teams have already registered nationally so don’t miss out on your chance to be part of the sweetest week of the year. Taking part is easy, all you need to do is register, find some fellow bakers, and sell your cakes to colleagues and friends. The Great Legal Bake will take place from 12 – 16 February 2018. If you are not able to bake on those dates, don’t be discouraged, you can hold a bake any time in February (or beyond, if February doesn’t suit). For further information or to register a team, please visit http://www.londonlegalsupporttrust.org.uk /our-events/great-legal-bake-2018/ or contact philippa@llst.org.uk
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had always fancied working in Dorking and could not believe my luck in finding an item in the Law Society’s “Situations Vacant” column for an Assistant Solicitor doing residential conveyancing in the late summer of 1977. There was however a problem - I had spent the last two years in the Family Department of a Central London firm where I was articled (no training contracts in those days) and could put what I knew about conveyancing on less than one side of foolscap (what's that I hear you ask?). However, the Gods were with me as I was interviewed by former Partners, Brian Carr, David Rea and David Ing who spent the entire interview chatting about amateur dramatics (both the Davids had trodden the boards and Brian Carr’s wife was an opera singer) and never quizzed me about property law. Needless to say I was astonished to be offered the job. Downs has always been a very friendly firm even in those early days and the Secretaries were all so welcoming that I instantly felt part of the team. Back then there was a staff of 35, all based at 156 High Street, Dorking but we now employ over 125 staff spread across three offices – Dorking, Godalming and Cobham. In those days, things were very different as we all mucked in. I did the occasional probate or divorce and even went to court – we kept our fingers
Photo: Sarah Thomas
crossed that the dust did not need to be blown off the firm’s negligence policy! Brian Carr’s motto was “Take a chance every day” and by and large it has served me well. Downs was very modern – electric typewriters all round (except for one employee who would have nothing to do with them!). We were the first firm in Dorking, possibly even in Surrey, to have a word processor. It was a great technological advance for the firm and all quite exciting. How things have changed with computers now being a normal part of our working (and personal) lives. There was further astonishment to come when I was offered a partnership in 1981. Although many things have changed, I still like that we are a friendly firm, keeping up with technology and less mucking in as we all now have our own areas of expertise. Am I still taking a chance every day? Now that would be telling.
Local News
Solicitor escapes from Alcatraz It is not often that a solicitor should be celebrated for escaping from jail, but here’s the story of an exception. Jonathan Throp of Pearson Hards Solicitors in New Malden takes up the story….. Part 1 Then- September 2016. My 23 year old daughter is suddenly diagnosed with Type 1 diabetes. Now – September 2017. Two friends and I attempt to swim from Alcatraz to the San Francisco shoreline. The connection? – to raise some much needed funds for Diabetes UK. My daughter’s life changed overnight on that Friday last September. My hope is that the money I am raising will help to change her life and the life of others similarly afflicted for the better. The swim is challenging partly due to the fearsome currents (did someone mention a flow rate of five million gallons per second?), the varied marine life that may take a fancy to us (surely there aren’t actually sharks?) and me being 57 when I really should know better. Part 2 Been there, seen it, done it, got the t-shirt. Well three out of four ain’t bad for your correspondent, The Old Fool. Been to San Francisco, seen Alcatraz, done it by escaping by swimming back to shore but, alas, no t-shirt as a reward. I am delighted to say that as I am able to pen these words I successfully completed the Alcatraz swim and in the process raised over £4,200 for Diabetes UK. Thank you so much to all those very generous people who supported the cause. A foggy morning greeted me and my fellow swimmers raising concerns that the swim might be postponed or, worse, cancelled but thankfully the gloom lifted enough for us to get the green light. After a detailed briefing by the swim guide, Warren, and a boat trip out to Alcatraz we were set to go. Looking back at the San Francisco sky line it was at then that the realisation dawned on me that I was actually going to have to do this thing. What all those months ago had seemed like a jolly jape was now a reality. There was of course no going back so, on a wing and a prayer, I launched myself off the boat and into the cold, green waters of the Bay. The swim itself started by lulling me into a false sense of security as the fabled currents seemed to have taken a holiday and the first third of the distance was completed relatively quickly. “What’s all the fuss?” I thought to myself. But then I quickly learned what indeed the fuss was all about as suddenly I was no longer in complete control of my destiny. As the water around me gathered pace I found myself having to adjust my course every few strokes to make sure I kept heading in the right direction. The sighting point was a huge World War Two destroyer, the SS Jeremiah O’Brien, docked at Fisherman’s Wharf. At least I thought it was meant to be docked but with the currents swirling around me it seemed to be moving all over the place.
Photo: From left to right: Jonathan Throp and his daughter
After what seemed to be an age, and was in fact an hour and forty minutes, the harbour wall at the Maritime National Historical Park loomed into view, the end was in sight. After a short chat with an inquisitive sea-lion, which I swear gave me a questioning look as if to say “What’s all the fuss about? I do this swim every day of my life”, I rounded the harbour wall and headed to the shore where I was greeted by …er… no one. My wife, daughter and our friends and families had yet to make it round to the shore from the boat. So, no fireworks, no marching bands or ticker tape parade, but none of that mattered, I’d made it! The sense of relief and achievement was palpable. The swim will remain with me forever but as importantly reminded me of the absolute necessity to take such opportunities when they come along as you never know what hand life will deal you (as my daughter found out).
SurreyLawyer 15
Business
Business Continuity Planning – 8 Steps To Success Photo: Simon Williams
1. It’s about your business, not technology The first point to make, and this needs to be made loud and clear, is that business continuity planning is NOT just about technology and it is NOT something that you should leave to your IT department. IT people understand tech problems not business problems, so it is unrealistic and unreasonable to assume they can plan for disaster without your help. With this in mind, don't try and solve your problems using technology to start with. Ask senior management about their priorities. For some, it will be billing, others access to case files, others communications and so on. The point is you won’t know what systems are the most important unless you ask the people that use them. 2. We're not necessarily talking about Armageddon! When you think ‘Disaster’ you probably picture floods, terrorist attacks and the apocalypse. Cyber attacks, bad software upgrades or a hardware failure can be equally damaging. Ransomware attacks are now the biggest threat to continuity, such as the attack on DLA Piper in June. List your critical business processes and then create a scoring system and apply a priority to each process. You can then equate the risk of a process being compromised with financial losses or damage to business and rank it accordingly. 3. Know the cost of downtime To appreciate the true cost you need to take into account what happens if you can’t operate for 1 hour or 1 day. When you bill by the hour you can do a quick bit of maths that works out those losses. However you need to ask yourself other questions – Will clients go elsewhere? Will you be fined? What is the damage to your reputation and how do you put a cost on that? 4. You MUST have a plan Not having a BCP is negligent, unprofessional and frankly stupid. Your plan must represent all functional areas and offer clear guidance on what happens before, during and after a disaster. It’s imperative that all key people including Managing Partners are aware of the extent and limitations of this plan. As well as compliance with SRA and Lexcel, GDPR being enforced in May 2018 means business continuity will come up a lot more than it has to date. 5. We’ve got a plan, but we don't test it Any kind of recovery or continuity plan is only helpful if it works. Ideally you will ensure it works under simulated disaster conditions, but this might be tricky. It is advisable to scale your testing accordingly. Select a handful of staff from different areas of the firm and work with your IT team to recreate a business continuity scenario. On the tech side, it is advisable that you choose backup and DR solutions that help you create environments for non-disruptive testing of your plan.
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It is important that regular tests are completed and you are given accurate results that you understand. 6. So, who does what? A real-life disaster event will be chaotic and confusing. If key staff do not understand their DR responsibilities, the recovery process will be long and fraught with problems and remember, time is money. Create a business continuity team – a group of people that are responsible for planning and driving the recovery process. The team should consist of senior staff from key areas of practice as well as operations, IT, finance and Managing/Senior Partners. Your plan must clearly state the roles of everyone involved, including what happens if they are not available. This should be reviewed regularly to ensure that the details of the parties involved are current – any plan will fall down quickly if key people involved have left your firm. 7. Know your Recovery Times and Recovery Points Two metrics are used to record an application’s tolerance of downtime and data loss: recovery point objective (RPO) and recovery time objective (RTO). RPO is a measure of data loss. It indicates how far back you need to restore from. Your backups maybe taken every hour because you have decided that losing up to 1 hour of work is an acceptable risk, so your RPO would be 1 hour. The larger the RPO, the more data loss each application can tolerate before it becomes a problem for the firm. RTO is a measure of recovery time. Whereas RPO states how far back in time you need to restore from, RTO states how quickly you need to do this. The smaller the RTO, the faster you have to work to get the application back online before the firm starts to suffer significant losses. 8. Investing in Technology It is important to do your business continuity planning before spending any money. You must fully understand your recovery objectives and your prioritisation exercises should indicate how quickly you need to recover key systems, as well as the effect of data loss and downtime on the firm, Do not compromise on choosing the right systems, unless you really have to and certainly never try and make your plan fit around existing technology, that’s not right. If you do put some great new technology in place, beware of a false sense of security – a data back-up system is not DR, a DR system is not effective without a DR plan and a DR plan won't write itself!
Simon Williams
Pro-Drive
Business
New BTL rules mean higher tax bills for many Rod Milne, Joint Managing Director of financial specialists, HFS Milbourne, and Irena Padol, Tax Partner, Bessler Hendrie, Chartered Accountants look at the implications of the new tax rules for buy to let investments.
Photo: Irena Padol
The way that income from buy to let (BTL) investments is taxed changed last April leaving many landlords looking for ways to protect themselves from paying more tax. As a result of the new rules, higher rate taxpayers can no longer offset all of their mortgage interest against rental income before calculating the tax due. A reduction in tax relief is being phased in over the next three years and will be replaced by a 20% tax credit. From 1st April 2017, only 75% of any mortgage interest can be offset against profits. This falls to 50% next year, 25% in 2019 and zero% in 2020.
Rental income
Mortgage interest
Taxable rental income
Tax due on rental income Mortgage interest relief
Tax paid on rental income Profit
Tax Year
Photo: Rod Milne
“For the first time landlords will be assessed on their gross rental income as opposed to their profits, although an adjustment will be made for property maintenance and similar expenses. This move could force some landlords into higher tax brackets which would result in an overall drop in their net profit,” said Irena. Below is an example of a landlord who earns £42,000pa PAYE income and £36,000pa in rental income, with £24,000pa in mortgage interest costs:
2016/17
2017/18
2018/19
2019/20
2020/21
£24,000
£24,000
£24,000
£24,000
£24,000
£36,000 £12,000 £4,600 –
£4,600 £7,400
£36,000 £18,000 £7,000 £1,200 £5,800 £6,200
Once the tax changes have been fully implemented, this particular landlord will find himself £4,800 worse off each year. If you add in the cost of property maintenance then some landlords could be pushed into the red. In situations where a landlord has a highly geared portfolio with lots of income, this could result in heavy losses, meaning that the portfolio becomes unsustainable. The most at risk portfolios here being those with a high turnover and high mortgage interest costs. Moving property into a limited company “These changes only apply to private individual landlords and not to those who own property through companies,” explained Irena. “ Therefore one option to avoid the tax burden is to move privately owned properties into a limited company structure, although the costs associated with this can be prohibitive. Landlords will not only have to sell the property to the company, thereby attracting the new stamp duty surcharge, but they will also need to crystallise any gains made on any house price growth. There are, however, some tax reliefs available which can apply to specific limited circumstances which may be worth exploring.”
£36,000 £24,000 £9,400 £2,400 £7,000 £5,000
£36,000 £30,000 £11,800 £3,600 £8,200 £3,800
£36,000 £36,000 £14,200 £4,800 £9,400 £2,600
However, there are many advantages to purchasing new properties to let in a limited company. Corporation tax is only payable on profits the business makes, which is a more tax efficient option, particularly as the rate of corporation tax is set to drop over the next couple of years. “Lenders have reacted accordingly and are looking at BTL limited company mortgages more favourably. Typically a limited company will be able to borrow 16% more than a private BTL, though that comes at a price as the interest rates are usually about 1% higher,” said Rod. This latest update is the second significant change to hit the BTL market in recent years. Since 1st April 2016, anyone purchasing a property who a. is not replacing their main residence b. who has an interest in any other property or c. who purchases via a limited company is liable for an extra 3% stamp duty charge on the entire purchase price. This had a big impact on the market, with purchases spiking in March, before spiralling downwards in subsequent months. “In light of these changes, it would be worthwhile for anyone who is looking to purchase a BTL property to take professional mortgage and tax planning advice before making a commitment,” said Rod.
By Rod Milne and Irena Padol
SurreyLawyer 17
Personal Injury
The future of personal injury law is online On 25 May 2016 the All-Party Parliamentary Group on Alternative Dispute Resolution (ADR) took evidence about the use of ADR in the civil justice system. Photo: Tony Guise
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ne of the Group’s conclusions was that The Online Court being proposed by the Judiciary of England and Wales could play a massive role in fostering a culture change amongst the population at large. It is an opportunity the sector must seize, coupled with reforms to legal education and more active engagement of the wider public.” That conclusion was undoubtedly right but unfortunately Parliamentary time could not be found for the necessary legislation to enable the Online Court to be brought into being. Despite this setback there remain viable alternatives to the civil courts where the case management process is online from commencement. The Claims Portal (https://www.claimsportal.org.uk/) is an example of how the civil justice system has been brought online by a stakeholder solution developed by the joint efforts of claimants, defendants and insurers working with the MoJ to introduce effective IT in the civil justice system. Going live in 2010 The Claims Portal met with immediate success and in 2016 settled almost 210,000 claims. The Claims Portal is designed for personal injury claims where damages are anticipated to be between £1,000 and £25,000 and is considered a mandatory solution under the Civil Procedure Rules in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents and the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims. In the higher value personal injury claims arena, the benefits of online technology are brought into a long-established form of ADR – arbitration. Launched in April 2015 the Personal Injury Claims Arbitration Service devised by Andrew Ritchie, QC (PIcARBS) offers a completely online service from commencement for personal injury claims where damages are anticipated to be over £25,000. In evidence to the All Parliamentary Group on the use of ADR, Andrew Ritchie drew attention to eight issues faced by the civil courts and explained why arbitration for personal injury (PI) claims has a valuable role to play. The issues that concerned him were: a) Increased cost b) Change in overriding objective c) Strict adherence to rules and multiple applications which can work injustice d) Costs budgeting e) Everything on paper adding to the costs of managing each case
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f) No or limited front desk staff in local county courts g) Uncertainty about which judge will hear the case and whether he or she will have the relevant expertise h) Courts not coping with increasing volume of cases Arbitration can be used in personal injury claims with an online platform to enable citizens to receive compensation more quickly and at lower cost. To date arbitration for PI has not been used sufficiently. Supported by an online platform, Andrew Ritchie has developed an arbitration scheme for PI and clinical negligence: the Personal Injury Claims Arbitration Service www.picarbs.co.uk (PIcARBS). PIcARBS uses a simple, post-event agreement so that post protocol, the claim can proceed straight to arbitration. 16 QCs and 19 senior Juniors from major sets, all specialists in personal injury work, are signed up to the scheme which aims to deal with claims within 28 days, with significant cost savings. A pilot is being undertaken between Clyde & Co and PIcARBS involving 12 well-known claimant firms working with major insurers. Why do insurers, defendant and claimant firms embrace PIcARBS? Because: a) Costs are much lower b) It puts the citizen’s need for swift, cost-effective justice front and centre c) Arbitrators are free to adopt flexible interpretation of the rules to work justice d) Hourly rates are agreed from the outset with the infrequent costs dispute being resolved online, by C-ADR (http://www.costs-adr.com/) e) Everything is online reducing significantly the costs of managing each case f) There is no need to waste time queuing at Court or arguing about lost papers g) Only specialist QCs and senior Juniors will hear the case h) The Platform has virtually no limit to its capacity for cases and is an encrypted and secure environment Such innovative solutions as The Claims Portal, PIcARBS and the Online Court offer real opportunities for solicitors and barristers alike to attract work with the promise of faster compensation for their clients at far less cost.
Tony N Guise Director, eARB Limited
Mediation
Mediation –
the better way to resolve dispute? It is now well understood that all parties to litigation are expected to consider seriously the possibility of resolving their differences through Alternative Dispute Resolution (ADR). The courts have made it clear that an unreasonable refusal to consider and/or take part in ADR runs the risk of an adverse costs order. Photo: Geoff Thomas
P
erhaps the most popular method of ADR these days is mediation, whether conducted before or after the issue of proceedings. It has a successful track record and many proven advantages. It is flexible, voluntary and, importantly, confidential and is conducted on a without prejudice basis. This encourages the parties to engage in full and frank discussions, an aspect I always stress when mediating. Everything said to a mediator in private session (as opposed to a joint session when all parties are present) will be treated in absolute confidence. It is only if the mediator is given permission to impart any information given during a private session, that it might then be conveyed to the other party. That can often assist in breaking an impasse that otherwise might seem likely. Mediations are quicker, and much less expensive, than the court process. A mediation can be arranged within a matter of weeks and a typical mediator’s fees might be in the region of perhaps £3,000 to £6,000 excluding VAT (the cost usually being shared between the parties).
The mediator will encourage the parties to engage as much as possible in the discussions to come. 3. Next usually follows a series of private and/or joint meetings between the mediator and the parties. My view is that this can be the most important part of the day because if all goes well the mediator will not only have a far greater understanding of the issues, but also their provenance and how they might best be addressed. The mediator needs to gain the trust of the parties, and this is when that might be achieved. 4.In a typical mediation, the parties will then focus on the negotiations that will hopefully lead to a settlement. All being well, momentum will be built up and it is the mediator’s task to maintain it.
Mediations are quicker, and much less expensive, than the court process.
A successful mediation will also mean that the parties need not contend with the stress, expense and time that will otherwise arise if the dispute is not resolved. I am sometimes asked when is the optimum time at which a mediation might occur. I suggest when sufficient information has been disclosed so that the issues are understood, not only after proceedings have been issued, as that can serve further to polarise the parties’ positions.
Mediators develop their own methods, but sometimes adopt the following practices: 1 Preparation will include settling the mediation agreement, agreeing a mechanism for preparing a (hopefully succinct) bundle of papers and exchanging position statements, as well as agreeing the practical arrangements for the day. 2.The mediator will meet the parties on the day whether in joint or private session when he/she will make their opening comments, as may do the parties if the first meeting is joint.
5. The final stage of any mediation is its conclusion, hopefully reflected in an agreement. Whilst a mediator will be happy to assist the parties in finalising its terms (having more of an overview of the process on the day, this can be helpful), the responsibility for its content lies with the parties/their representatives. Thus, mediators are now sometimes told that once terms have been agreed they can leave.
A mediator is not a judge or tribunal. It is not his/her task to impose a settlement. A court can do so, but that might not satisfy (either, or all, of) the parties. They are in control of the process and it is their decision to settle on terms which can be creative and that could not be incorporated into a court order. It is often not a case of “winning” or “losing”, but of reaching an accord that might assist in maintaining a relationship between the parties, and their self-respect. Mediations often succeed. Parties then find that issues which have been troubling them quite possibly for some years are behind them once and for all. I suspect a priceless feeling.
Geoff Thomas
MEET THE REGULATOR OF SPECIALIST CONVEYANCERS 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. SurreyLawyer 19
Article
Terminally ill man loses right to die fight Judgment was made by the High Court on 5th October 2017, following the high-profile assisted dying case involving Noel Conway, a 67 year-old grandfather and retired lecturer. Photo: David Foster
M
r Conway, whose challenge to the existing law has not been upheld, was diagnosed with motor neurone disease in November 2014 and is not expected to live beyond 12 months.
The Right Honourable Lord Justice Sales and his two judicial colleagues found that Section 2 of the Suicide Act 1961, which states that a person commits an offence if he does an act capable of encouraging or assisting the suicide, is compatible with Mr Conway’s Article 8 rights.
David Foster, Partner at Barlow Robbins LLP, who acted on behalf of Care Not Killing, an intervener in the case, commented as follows: “The judgement is to be welcomed as an eminent example of the way judges listened carefully and understood the evidence put before them particularly from the British Geriatric Society. The Society’s experience at the rock face showed that phrases such as, “can’t you just let me go”, are more often a cry for help rather than a genuine desire for death: often, listening to their patient’s wishes, concerns and fears and taking time to address their needs significantly diminishes their wish for death. The British Geriatric Society consider the best way for physicians to help these vulnerable people is to maximise their independence and health rather than assisting their expressed wish to die. “The court accepted that once quality of life becomes the yardstick by which the value of human life is judged, the protection offered to the most vulnerable members of society is weakened.” “Legally the case reaffirmed the sovereignty of Parliament which has looked at these issues on several occasions in recent years. It affirmed Parliament not the courts as the conscience of the nation and confirmed that Parliament is entitled to maintain and place a clear bright-line rule which forbids people from providing assistance to an individual to commit suicide. The legitimacy of Parliament deciding to maintain such a clear line is not open to serious doubt. Parliament is entitled to make the assessment that it should protect moral standards in society by issuing clear and unambiguous laws which effect and embody such standards. The court also made the obvious point that Parliament is far better placed than the court to make the relevant assessment regarding the likely impact of changing the law. The Parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas.”
David Foster
20 SurreyLawyer
Article
The Court of Protection Rules 2017 The New Court of Protection Rules 2017 came into force on 1st December 2017. The Statutory Instrument 2017 No. 1035 (L.16) runs to some 96 pages and the Practice Direction 180 pages.
T
he Statutory Instrument revokes the Court of Protection Rules 2007 and the subsequent amendments to the same and is a timely consolidation. The new Rules are said to strengthen the Court of Protection’s powers to deal with current challenges particularly the increase in caseloads and the complexity of cases. The costs Rules are contained within Part 19 and are compact. Part 19 contains no surprises but I would guard against compliancy as the Office of the Public Guardian (OPG) and the Supreme Courts Costs Office (SCCO) remain vigilant in ensuring compliance with both the Rules and good practice established by COP costs case law over the last ten years and more. There is an extensive package of Practice Directions supporting the Rules and costs are covered in PD 19A and PD 19B. The fixed costs set out in the PD contain increases under each of the established categories and in many cases solicitors continue to apply for the fixed fees. However, where costs are to be assessed by the court, practitioners should pay close attention to the guidance published by the OPG and the SCCO both when preparing estimates (to be included annually in Form
OPG105) and indeed Bills of Costs whether in the short form (for costs up to £3,000 plus VAT) or detailed Bills of Costs. Most Bills of Costs which proceed to detailed assessment are provisionally assessed and in my experience it is rarely cost effective to challenge a provisional assessment. There are however occasions when a simple mistake is made by the Court or something claimed in the Bill of Costs which is misunderstood. In such instances there is no reason why you should not write to the court setting out the facts and the remedy sought and invite the Court to deal with the matter on the basis of the written submissions. Given that appealing provisional assessments is rarely cost effective there is all the more reason to get the Bill of Costs correct to begin with thereby ensuring that you are fairly remunerated for the time and effort put into any given matter.
Paul T. Carter Costs Lawyer Temple Costs Lawyers
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SurreyLawyer 21
GPDR
Are You GDPR ready?
James Castro-Edwards Partner and Head of Data Protection, Wedlake Bell LLP Expertise James Castro-Edwards is a partner and Head of Data Protection at Wedlake Bell LLP. James advises domestic and multinational organisations on data protection issues. His experience includes managing global data protection compliance projects for multinationals, and advising domestic companies on complex data protection issues. He has also developed and delivered innovative data protection training programs for multinational clients, including a data protection officers’ training course which was accredited by a European government. James leads the firm’s outsourced data protection officer service, ProDPO (http://prodpo.com). James frequently speaks on data protection and cyber security issues and is widely published, having written articles for a wide variety of titles including The Times and The Guardian, and wrote The Law Society text book on the General Data Protection Regulation (GDPR). Background The use of personal data is regulated in England and Wales by the Data Protection Act 1998 ('DPA'). The DPA implements the provisions of European Directive 95/46/EC ('Directive'). The Directive, which came into force in 1995, has been the subject of significant reform, and will be superseded by the General Data Protection Regulation (‘GDPR’) when its provisions take effect on 25th May 2018. The principles and concepts of the GDPR are similar to those of the Directive and the DPA, however, the GDPR includes significant new obligations for organisations and grants individuals a range of new rights. Impact of Brexit The GDPR has been law since 25th May 2016 but included a two year 'sunrise period' that will expire in May 2018, intended to allow organisations time to prepare. Unfortunately, this coincided with the EU Referendum and hence some confusion, with many organisations believing that the GDPR, as a European regulation, would not take effect in the UK. However, both the British
22 SurreyLawyer
Government and the ICO have confirmed that the GDPR will become law. The result is that a significant proportion of the potential time to prepare for the GDPR has been lost. In the UK, the GDPR will be supplemented by the Data Protection Act 2017, the provisions of which are currently being finalised in parliament. Changes the GDPR will introduce The main changes that the GDPR will introduce include the following: • Scope: The GDPR will apply to a wider range of organisations than the DPA and Directive; not just ‘data controllers’ but also data processors acting on behalf of controllers, including in some circumstances, controllers and processors established entirely outside Europe. • Accountability: Organisations must not only comply with the GDPR, but must also be able to demonstrate their compliance to the data protection authority, for example by way of policies, training, and management. • Consent: The GDPR requirements around consent are significantly more stringent, outlawing many common practices, such as pre-ticked boxes, and ‘bundled’ consent, frequently found in employment contracts and privacy notices. • Mandatory breach reporting: Organisations that suffer a data protection breach must report it to the data protection authority within 72 hours, and promptly notify affected data subjects if they face a high risk. • Mandatory Data Protection Officers (DPOs): Certain types of organisation must appoint a DPO, and voluntary appointment will often be advisable. • Privacy impact assessments: Organisations embarking on a new practice involving personal information must conduct a documented impact assessment and ensure the concepts of ‘privacy by design’ and ‘privacy by default’ are incorporated to new processes. • Penalties: The GDPR includes a range of penalties including fines of up to 4% worldwide annual turnover, or €20,000,000, whichever is greater. Data protection authorities are granted a broader range of powers, including the right to conduct compulsory data protection audits. Risks of non-compliance The high maximum fines the GDPR will introduce are explained above, however the risks a non-compliant organisation faces are not limited to financial penalties. The GDPR grants data protection authorities a wide range of powers including the ability to conduct compulsory audits and to suspend organisations' use of personal information. In addition, the UK data protection authority plans to hire an additional 200 employees,
expanding its capacity by around 40%, in anticipation of the GDPR coming into force. In practice, this expansion will significantly increase its ability to enforce the new law. Organisations face an additional risk following a development in the common law, which enables individuals to claim for pure distress (i.e. no financial loss) where they are affected by misuse of private information. In what is believed to be the first of its kind, an award for damages on the basis of pure distress was made by an Edinburgh court early in 2017, and many commentators believe this paves the way for significant 'class action' type claims against organisations. How law firms should address the risk Law firms face a particular risk under the GDPR, as they typically hold a large volume of personal information about their clients. This may include sensitive information where firms advise on matters such as personal finance, divorce, child custody, crime or medical negligence. A law firm that suffers a data protection breach concerning sensitive information would be regarded by the data protection authority as a serious matter. Law firms must be fully aware of the personal data they hold, whether about their clients or staff, and must take proactive steps to ensure such personal data is protected. A prudent initial step would be to conduct a data protection audit or review. Firms must have in place a data protection policy, including a data protection breach policy, and ensure their staff are appropriately trained. Any law firm that processes the ‘special categories of personal data’, which includes information about individuals’ health, is likely to need to appoint a DPO. DPOs must be independent, which precludes the Managing Partner, Head of HR, or Head of IT (for example). The GDPR imposes strict rules where controllers appoint ‘processors’, which process personal data on behalf of controllers (such as outsourced payroll providers, hosted software, or email marketing service providers). Failure to comply with these requirements may be regarded as a breach of the security requirements of the GDPR. There are now less than 6 months to prepare for the GDPR. Any firm that has not yet started to prepare should not delay further. As a first step, firms must identify the personal data they hold (for example, about their employees, clients, whether individuals or corporate clients, and their suppliers), and ensure it has been collected and used in accordance with the principles of the GDPR. The use of personal information is becoming an increasingly regulated activity, and failing to comply is an increasingly dangerous risk.
Property
“It's the economy, stupid”
by Kevin Johnson
...is a slight variation of the phrase “The economy, stupid”, which James Carville (Bill Clinton’s campaign strategist in 1992) coined against sitting President George H. W. Bush. How true that phrase seems to be in relation to the UK housing market!
D
ysfunctional is a term that I hear repeatedly used to describe the housing market. And with the rate of home ownership plummeting, the average age of homebuyers rising, rents unaffordable in many of the UK’s hotspots and homelessness on the increase, that’s hardly surprising. Markets work on the classic principle of supply and demand; conventionally, low prices are a disincentive to produce but as prices rise, so does production and output. By contrast, increasing prices can deter buyers as products become too expensive. Somewhere in this mix though, there comes a point of balance.
With the Bank of England increasing interest rates in December all that stands between the UK and another monstrous housing crash is calm, and sensitive handling of the interest rate by The Old Lady of Threadneedle Street! Brighter people than me can offer an opinion on how we avoid another massive boom & bust but it strikes me that we have to strive for a saner property market; our current trajectory is unsustainable.
The Government has to take the lead in proactively reviewing damaging policies such as Help to Buy; it’s counter-productive. Further work on Stamp Duty is needed and a review of Council Tax is well overdue. The eight Council The housing market, however, is a galaxy away from theory and common Tax ‘bands’ are based on property valuations from over a quarter of a century sense! You’d expect sellers to be marketing their properties as prices rise – ago! Based on 1991 prices, the highest band (H) is for homes valued at but they don’t, they wait to see just how high the market might go. And buyers £320,000 and above! Land hoarding by developers has to end and the might be expected to wait for falling prices until showing real interest – but Government has to find a way of making more land available. Dame Kate they don’t, they scrabble to just get on to the ladder and, often, Barker published a report in 2004 that lead to the formation of I can’t quite at any price! the National Housing and Planning Advice Unit; I’d be looking understand the to bring her out of retirement! The supply and demand equilibrium is also destroyed by virtue of initiatives such as ‘Help to Buy’, where a 5% deposit can be topped up by 40% in London (state loan) and 20% elsewhere in the country. Inevitably this fuels inflation in prices (as sellers know that there is going to be a supported buying contingent desperate to get into property), but it does nothing to see chronic supply shortages improved.
Government’s November budget injection of £10bn into Help to Buy while only allocating £2bn to the building of new affordable homes.
I can’t quite understand the Government’s November budget injection of £10bn into Help to Buy while only allocating £2bn to the building of new affordable homes. Surely this only exacerbates the problem? There’s money to buy, but no stock… the corollary of which has to be prices continuing to rise as sellers continue to hold their position (and nerve!).
Help to Buy is a counter-productive initiative and an alternative is needed. Its introduction was understandable as rising prices and stagnant wages made life tough for buyers, particularly in the south where house price to earnings ratio increased by 60% between 2002 and 2016 (the average house in the UK would cost nearly eight times average earnings and, in London, the ratio is nearly thirteen times….). But it’s not part of the solution needed now. The fact that house prices can continue to outpace earnings to such a great extent, and the affordability of huge mortgages, is down to the actions of the Bank of England. Ultra-low interest rates and the creation of ‘cash’ (Quantitative Easing) has seen almost unprecedented house price rises while the cost of servicing a mortgage has been slashed. Over fifteen years, the average house price in London has risen from £174k to nearly half a million pounds. But there has to come a point where even the hardiest of souls find their monthly repayments too much and that point has probably arrived, as evidenced by house price inflation stalling in 2017.
I’ve already spoken about the pivotal role of the Bank of England; we need a gradual fall in house prices to a point of affordability, not a recession that can only lead to damaging increases in unemployment. And, finally, we have to find a way of boosting wages to make housing more affordable. A sensible policy that sees an increase in productivity, with related improvements in earnings whilst, at the same time, allowing for a manageable adjustment in prices might be the stuff of Christmas wish lists but given our role at Index in the property market, it was high up on my letter to Santa!
Whatever 2018 brings, selecting the right conveyancing solicitor, local to the market, still has to be the considered advice. Take advice from friends and family and seek recommendations before selecting your ‘team’ (these might also come from your mortgage broker, lender or IFA). With luck, that solicitor will also be using Index Property Information to deliver those all-important Local Searches! Our record, for the delivery of a full ‘pack’ of information is 4pm on a Friday, having received the instruction at 9.30am on the same morning! It enabled the exchange of a £3.5m property in Richmond the following Tuesday. National ‘hub’ search companies can’t deliver the flexibility, speed or tailored personal service that Index provides. If we don’t already, we very much look forward to working with you soon! And to sanity in a mad, mad, mad, mad, mad world and property market! ■ For more information please contact me at 0203 044 2758 or on email at kevin.johnson@indexpi.co.uk
SurreyLawyer 23
Free Wills
Free Wills Month is an opportunity for both solicitors and the public Ten national charities are working together to promote Free Wills Month during March. The promotion is an opportunity for people to have their Will written free of charge by a local solicitor and at the same time to leave a lasting legacy. or solicitors the promotion is a fantastic opportunity to acquire new clients at no cost. The promotion involves a lot of local advertising, which includes participating solicitors’ details, paid for by the organisers. Solicitors average 25 new clients, though some set a lower limit while others regard it as an excellent way to add to their client list and take as many appointments as they can manage.
F
Many charities depend on gifts left in Wills for up to half of their funding. The Free Wills Month promotion aims to encourage those aged 55+ to have their Will written or updated (though in the case of couples making mirror Wills it is sufficient if one has reached 55).
obligation to include a gift, though the great majority of people using the promotion choose to do so. The Free Wills Month charities work exclusively with solicitors who are in good standing with the Law Society and who are regulated by the SRA. The Free Wills Month charities in the March 2018 campaign are Age UK, Arthritis Research UK, The Blue Cross, British Heart Foundation, Guide Dogs, Marie Curie, MIND, NSPCC, the RNLI, The Salvation Army and Stroke Association.
Recruitment of solicitors for Free Wills Month March is scheduled to be completed by the end of January when Free Wills Month is a great opportunity for attention turns to the October campaign. The promotion people to consider leaving a gift to one 1or 30/11/2017 16:07 runs from Thursday 1st March to Friday 30th March inclusive. more of the charities. There is no
24 SurreyLawyer
Appointments have to be made during March, though the actual appointments can take place any time afterwards to suit clients and solicitors. Solicitors interested in taking part in Free Wills Month should visit the campaign website at www.freewillsmonth.org.uk or call 0345 686 4309.
Free Wills
Building a future where no one has to cope with a mental health problem alone In any given year, 1 in 4 people will experience a mental health problem, yet fewer than half of those with a diagnosed mental health problem tell their current employer. e live in a society where mental health problems are driving some people to despair and exposing them to prejudice. About half of all long-term sick leave in the UK is due to stress, depression and anxiety. Almost 1 in 3 people in England have experienced mental health issues while in employment, but only 1 in 4 employees in the UK said they would be likely to talk to their manager if they were experiencing a mental health problem.
W
The statistics are staggering, but Mind is here to help anyone who feels they have nowhere else to turn. We are the leading mental health charity in England and Wales. We are at the forefront of a change in the way that society is thinking about mental health. We’re striving to improve experiences and outcomes across every part of the mental health journey, whether that’s staying well, giving people choice, improving services, or breaking down barriers for those who can’t
access support. We can only continue our vital work thanks to public support, including gifts in wills. March 2018 is Free Wills Month in London and Mind is part of the consortium of charities involved this year. Clients using the offer are under no obligation to make a gift to any charity, but we hope that many will see this as a chance to support our work. Did you know that three times as many people would leave a charitable legacy if their solicitor reminded them to consider this opportunity? Solicitors promoting their clients to consider giving to charities in this way has proven to double the value of their donations too*. When speaking to your clients, please ask them if there are any causes they feel passionate about. And if they share our vision of a world where no one has to cope with a mental health problem alone, please ask if they would consider making a gift to Mind.
*Behavioural Insights Team Cabinet Office 2013
We are stronger together– people and trees What do a barrister turned comedian, a rap artist and a Welsh poet have in common?
A
nswer - they all joined guests braving the icy winds of Lincolnshire in a lantern lit procession through the grounds of Lincoln Castle where Clive Anderson led an evening of music and verse to celebrate the unveiling of the Tree Charter – A Charter for Trees Woods and People The 1217 Charter signed by Henry III, gave rights to the common man entering the royal forests for such activities as gathering firewood or for pannage (grazing pigs) and many of its clauses remained in force until the 1970s making it the longest-standing statute in English Law. It was an inspiring sight to see the new charter, poetic in its language nestling against its 800 year old cousin; beautifully written in the same oak gall ink (derived from oak apples or oak galls) as the original. What has all this got to do with the legal sector and with lawyers you may ask? Beyond, of course, the academic interest in the development of English statutes, this new charter is a call to action for us all. Acting as natural carbon sinks they enhance both rural and urban environments and have never been more vital nor more at risk. The Woodland Trust have set out a new charter covering ten key principles from sustaining landscapes rich in wildlife, through planning greener local landscapes to combating threats to habitats.
Local councils, countryside and farming organisations, community groups, and the Legal Sustainability Alliance (LSA) have responded to the spirit of the charter by setting out how its recommendations can be turned into practical action. The LSA guide includes advice to law firms for changing behaviour by reducing paper and energy consumption, as well as suggestions on working with clients, and lobbying for environmental legislation post Brexit. As with everything the LSA produces, we aim to make acting sustainably as easy and as accessible as possible, so we encourage all our members to take small steps and to keep doing so. Every journey starts with a single step. We tread in the footsteps of our ancestors whose right to roam in the royal forests was enshrined in law 800 years ago to make sure that we keep putting one foot in front of the other as we journey towards a more environmentally -balanced world. To find out more about the LSA or to join for free visit www.legalsustainabilityalliance.com or email info@legalsustainabilityalliancce.com we welcome applications from all UK based law firms and from in house counsel. To sign the Tree Charter then visit treecharter.uk
Amanda Carpenter Founder and Director of Achill Management
SurreyLawyer 25
Charity
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.
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.
Who’ll keep him happy when your client’s gone? We will – as long as your client has a Canine Care Card. It’s a FREE service from Dogs Trust that guarantees a bereaved dog a home for life. At Dogs Trust, we never put down a healthy dog. We’ll care for them at one of our 20 rehoming centres, located around the UK. One in every four of your clients has a canine companion. Naturally they’ll want to make provision for their faithful friend. And now you can help them at absolutely no cost. So contact us today for your FREE pack of Canine Care Card leaflets - and make a dog-lover happy.
Call
020 7837 0006
Or e-mail
today
ccc@dogstrust.org.uk
Or write to: Freepost RTJA-SRXG-AZUL, Dogs Trust, Clarissa Baldwin House, 17 Wakley Street, London EC1V 7RQ (no stamp required) Please quote “333608”. All information will be treated as strictly confidential. This service is currently only available for residents of the UK, Ireland, Channel Islands & the Isle of Man
www.dogstrust.org.uk Registered Charity Numbers: 227523 & SC037843
26 SurreyLawyer
Training
The Productivity Gap...
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A recent Annual Law Firm Survey highlighted that 75% of UK firms have increased their fee income this year, but profit per equity partner remained flat or reduced. It highlighted: • Deterioration in net profit margin, given an increase in volume, has been driven by higher fixed costs. Additional headcount (more equity partners, fee earners, paralegals and business support), as well as greater spend on IT and operational infrastructure • A growing trend for fixed and contingent fee arrangements along with downward pressure on fees through competition • Lower average utilisation of fee earners and paralegal staff has eroded productivity. So, are we working harder instead of smarter? The use of productivity improvement techniques in the service sector has found significant traction over the last decade as practitioners grounded in engineering backgrounds have applied the same rigorous and scientific thinking found in lean operations to office processes, shared service centres and professional service environments. Adoption across many sectors has been rapid and forward planning organisations are readying themselves for the future by adapting ahead of their competitive environment as per Darwinian evolutionary principles. And with events like the Jackson reforms, Brexit and increased competition in the legal sector along with the trend of customers demanding fixed fee quotations it is sometimes hard to demonstrate the value a firm adds upfront during the client engagement process. Are clients picking the cheapest instead of the best? After all, what price is worth the wrong legal outcome? Productivity improvement, getting more output per hour worked without increased human effort, can be achieved through: • Better work design and resource organisation • Process redesign, quality control and standardisation • Staff training in wider skills, increasing employee engagement and motivation • Higher staff utilisation through elimination of non-value-adding activities • Automation, improved use of technology and software supporting the operational design Combined, they lead to better customer experience, reduced operational costs and increased profit. ChangeWise has experience in all aspects of service productivity improvement and has developed a comprehensive operational assessment approach that quickly identifies the key factors that enable an efficient and effective operation. By examining critical business and support functions, processes, company policies, organisational structure, culture and key performance metrics we can identify your company's strengths and weaknesses, provide insight, pinpoint priority areas and make recommendations for improvement. Call Mike Williams on 07866 537 580 to find out more.
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SurreyLawyer 27
Conveyancing Focus
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
Susan Fairbrass Geodesys Land and property information
28 SurreyLawyer
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
SurreyLawyer 29
Conveyancing Focus
Guiding and supporting specialist property lawyers with tailored regulation The Council for Licensed Conveyancers (CLC) was established in 1985 to foster competition and innovation in the conveyancing market. We regulated specialist conveyancers and probate lawyers.
I
n doing so, we have 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. Today, we are still helping legal businesses to thrive by finding new ways to meet changing customer expectation. Our aim is to support firms to achieve compliance and to accommodate different ways of working wherever we can. The CLC regulates firms of all types and sizes, and has always looked to promote high regulatory standards. For example, each CLC Practice is allocated a Regulatory Supervision Manager (RSM) whose role is to guide them in all regulatory and compliance issues. We always advise firms looking to transfer to CLC regulation, to discuss their plans with us at an early stage, so that we can give them guidance about the best way to take their application forward and help them understand whether CLC regulation is right for their firm. This is just as important for established firms looking to move between regulators as it is for start-ups just entering the market. We are working with an increasing number of firms considering a transfer into CLC regulation, especially now that the requirement that a firm
TAILORED REGULATION OF SPECIALIST LAWYERS PROTECTING THE CONSUMER SUPPORTING INNOVATION, COMPETITION AND GROWTH
transferring to another regulator should take out run-off professional indemnity insurance cover has been removed. It is clear from our discussions with those we currently regulate - as well as lawyers considering transferring their practices into CLC regulation - that our model of specialist regulation is hugely appreciated, with three quarters of licensed conveyancers stating that the CLC provides value for money and supports them in developing their businesses. For example, in 2017 we increased online protection for CLC firms and their clients by establishing a secure badge scheme, which significantly reduces the risk of impersonation online through cloned or copied websites. Over the last 30 years, the CLC’s regulation of specialist conveyancing and probate lawyers has delivered high standards of consumer protection and supported innovation in the delivery of legal services. If you are thinking of becoming a CLC regulated Practice then please visit: http://www.Clcuk.org/newfirms or, should you wish to outline your Practice’s requirements, whatever your business model, then we will be more than happy to meet with you, or to discuss your proposals over the telephone. For an initial contact please email Licensing@clc-uk.org To find out more about CLC regulation then please visit: http://www.conveyancer.org.uk/Regulation-by-CLC.aspx where you will find more helpful information, including how to qualify as a CLC Lawyer: http://www.conveyancer.org.uk/trainee-lawyer.aspx.
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 SurreyLawyer
Conveyancing Focus
Conveyancing checklist: Five ways your residential property clients are affected by the changes to sewerage legislation.
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he law regarding sewerage legislation has changed. Thames Water Property Searches Account Manager Jason Harper explains why conveyancers should be made aware of this change in legislation. 1: The new sewerage system is much easier to understand The last transfer of private sewers happened under the Public Health Act 1936. Since then, thousands of miles of sewers have remained in private hands – out of the control of water utility companies who have had no knowledge of their condition. The Department for Environment, Farming and Rural Affairs (DEFRA) decided that it would be easier and clearer for homeowners if utility undertakers, such as Thames Water, took on responsibility and ownership of all the private sewers that drain into the public system. This transfer took place on 1 October 2011. It’s a much simpler system, which should mean far less stress for homeowners who are no longer responsible for their upkeep. 2: Homeowners now have less to worry about A homeowner is still responsible for the pipes within their property boundaries if they only serve the one property. However, since the transfer, homeowners are no longer responsible for sewers that drain more than one property or that sit outside the boundaries of their property (e.g. under pavements or roads). Conveyancers are advised to make sure that clients are clear which pipes have been transferred and which are still their responsibility. This information will show up on an official CON29DW search. There’s a great video on the Thames Water website that explains the transfer in greater detail: https://www.thameswater.co.uk/Help-andAdvice/Drains-and-Sewers/Transfer-of-Private-Sewers/How-are-you-affected. 3: The new system protects homeowners from large repair bills Under the previous system, if something went wrong with a private sewer, the costs to the property owner could run into thousands of pounds.
Instead, a small annual charge – estimated at between £3 - £14 a year – is now added to every homeowner’s bill to cover the ongoing maintenance work. 4: The transfer also includes private pumping stations Before the transfer, property owners using a pumping station were responsible for the entire sewer, pipes and pumping station, right up to the point where it connects with the public sewer. As of 1 October 2016, water utility companies have taken ownership of all private pumping stations that drain two or more properties or if they lie outside the boundary of the property they serve. Again, this should make things much simpler for homeowners. 5: To benefit from the changes, clients must register their private pumping stations Conveyancers should advise clients to contact the water company that deals with their sewerage to make sure that their private pumping station is registered. Property owners should also be aware that water utility companies will need 24/7 access to any private pumping station on their land. For more information on any of the above points visit: www.thameswater.co.uk/Help-and-Advice/Drains-and-Sewers/Transfer-ofPrivate-Sewers. If you would like Jason to visit your office and present a free accredited CPD on the Private Sewer Transfer, please email: jason.harper@thameswater.co.uk. Comprehensive drainage and sewer reports are easily obtained from Thames Water Property Searches. For more information call our Customer Experience Team on: 0845 070 9148 or visit: www.thameswater-propertysearches.co.uk.
SurreyLawyer 31
Technology
Advice to law firms on data transfer Peter Baverstock, CEO of LEAP UK, gives his tips to law firms on how to ensure a smooth and successful transfer of data to a new practice management system
Honesty and realistic expectations throughout the buying process When making the decision to transfer data to a new practice management system, it is imperative that your new service provider sets realistic expectations on what they can deliver early in the buying process. Occasionally, unforeseen circumstances can cause the conversion to be delayed. The transfer process should be a partnership between the firm and the software provider.
Know your transfer options The data transfer from one system to another can be completed at many different levels. Generally, the options would be: • Static Data only: This would include static client and matter data with no balances or transactions. • Static Data and Balances: This would include static client and matter data with top level balances only, but no transactions behind those balances. • Static Data, Balances and Transactions. This would include static client and matter data, balances and transactions. • Full Transfer: Includes all static data, balances, transactions, case management and peripheral data across the whole system. Get prepared It is important that you familiarise yourself with your data, understanding what is involved with the transfer process and what your obligations are. Preparation is key to a successful data conversion and tidying up data before the process is essential. There may be decisions to be made, for example: • Choosing whether to only convert live matters • Keeping a copy of your old system to access historic data – It is always advisable to keep a copy of your data in a secure location • Keeping a set of reports – printed or electronic is also a must You should also check your service contract as data extraction usually falls outside of your service contract terms and conditions so the rates may differ. Own your data and ensure you are happy at the point of sign off It is important that you take ownership of your data and that you are au fait with the data transfer process at every stage. Data conversions are resource heavy for both the provider and the firm. Therefore, you should factor in how delays may affect your firm, in terms of scheduling training, re-keying data and availability of resources, such as your IT provider. Regardless or the type of conversion you opt for, you should always keep a copy of your old data in a secure location. Keeping a copy of your old system, or a single licence to access your historic data is also good practice.
Peter Baverstock
32 SurreyLawyer
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.
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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 Critical 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 d 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 changed 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: cansfordlabs.co.uk sfordlabs.co.uk SurreyLawyer 33
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Book Review
Judicial College Guidelines for the assessment of general damages in personal injury cases Includes Guidance on 10% Uplift Fourteenth Edition Foreword by Lord Justice Irwin Compiled for the Judicial College by
Mr Justice Langstaff, Peter Carson, Stuart Mckechnie, Steven Snowden QC and Richard Wilkinson ISBN: 978 0 19881 452 8 OXFORD UNIVERSITY PRESS www.oup.com
An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, “The Barrister” A decision some twenty-five years ago by the Judicial Studies Board established a working party to prepare the original Guidelines for the judiciary. As Lord Donaldson said, the Guidelines were “not intended to represent, and does not represent, a new or different approach to the problem” of how to assess general damages, especially where no two cases are ever precisely the same.
As a passing final thought, Irwin LJ mentions both the Jackson reforms and the proposals on “whiplash”. Both areas have fallen victim to the dominance of Brexit matters in Parliament and the June election. However, the future is catching up with all of us fast. The question posed is will the reforms and “whiplash” get Parliamentary time?
Today, in 2017, Lord Justice Irwin says in his Foreword that Donaldson’s view is now “a voice from a different era” concerning the assessment of damages. The reason being that the judges now will only from time to time be called on to take a decision on assessment because it is no longer “one of the commonest tasks of a judge sitting in a civil court” and working out the assessment level.
We hope the answer is “yes” for the same piece of draft legislation will be essential for the enactment of the electronic civil court by means of the ‘Online Procedure Rules’ which Irwin rightly describes as “an essential part of the Courts’ Reform programme. He ends ominously with these words- “the cliched Chinese curse of life in interesting times sounds less hackneyed than usual”. Donaldson and the JSB grasped the nettle 25 years ago with these Guidelines so there should be no excuse!
As Irwin LJ concludes, it is the case now that the real dispute on quantum lies elsewhere. He writes that “the argument as to the level of damages for pain and suffering will usually be an incidental issue in a case where the decisive matters are liability, the nature of a care regime, disputed contributory negligence or something more technical”.
So, you and your practice need this guide if you are involved in any aspect of personal injury work. We hope that other suitable guides will be published by the Judicial College and OUP in the future (for instance, online courts) because they make our working lives much easier as practitioners and they are a boon for unrepresented parties as well.
And all this is down to one factor- “these Guidelines have operated to diminish hugely the incidence of unsettled arguments as to damages for ‘PSLA’ (pain, suffering and loss of amenity)”. The guidelines have settled the law and given us an admirable service in the past and the new edition continues to give us the best information available for assessments and how we arrive at them.
These guidelines were published as a 14th edition on 28th September 2017.
SurreyLawyer 35