Spring 2016
The BILL of
Middlesex Official journal of the Middlesex Law Society
“ To be a Law Officer is to be in Hell ” said Sir Patrick Hastings So what is the job of Attorney General like today? An interview with Jeremy
Wright QC MP (cover story)
Inside this issue: › › › ›
Council Members Conveyancing Focus Clinical Negligence Free Wills Month
introduction
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Contents 5 17
ADVERTISING AND FEATURES EDITOR Anna Woodhams
DESIGN AND PRODUCTION MANAGER Neil Lloyd
ACCOUNTS DIRECTOR Joanne Casey
MEDIA No. 1404
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EDITOR Sundeep Bhatia
PUBLISHED February 2016 - © Bill of Middlesex - Benham Publishing
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DISCLAIMER The Middlesex Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation. All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. 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: Jeremy Wright QC MP
Copy Deadlines Summer Autumn Winter Spring
1st May 2016 1st August 2016 24th October 2016 23rd January 2017
Anyone wishing to advertise or submit editorial for publication in the Bill of Middlesex please contact Anna Woodhams, before copy deadline.
Email: anna@benhampublishing.com Tel: 0151 236 4141
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5
INTRODUCTION
24 PROFESSIONAL PRACTICE
6
COUNCIL MEMBERS
26 FREE WILLS MONTH
11 INTERVIEW
28 CYBER TERRORISM
12 NEWS
32 LEGACIES
17 CONVEYANCING FOCUS
34 BOOK REVIEWS
20 CLINICAL NEGLIGENCE The Bill of Middlesex 3
officers COMMITTEE MEMBERS
PAST PRESIDENTS
Sundeep Bhatia of Beaumonde Law Practice
R Garrod, J A S Nicholls, R C Politeyan, J Aylett,
Audit House, 260 Field End Road, Eastcote HA4 9LT
K Goodacre, H J B Cockshutt, W Gillham, L Lane Heardman,
(020 8868 1614)
D Grove, L A Darke, C Beety, Mrs L E Vickers, H Hodge,
e-mail: sundeep.bhatia@beaumonde-law.co.uk
E G B Taylor, A A M Wheatley, A H Kurtz, M J S Doran,
Nirmala Chandrasena of Chands Solicitors
A Bates, J J Copeman-Hill, D B Kennett-Brown,
OFFICERS FOR 2016
H B Matthissen, G Parkinson, HHJ R D Connor,
President:
145 Cannonbury Avenue, Pinner, Middx HA5 1TR
S B Hammett, Miss F A Shakespear, HHJ P E Copley,
GURMEET KHARAUD
(020 8933 8332) (DX 48001 Rayners Lane)
A M Harvey, H R Hodge, G R Stephenson, B S Regler,
Fort & Co. Solicitors
e-mail: n.chandrasena@btinternet.com
Saunders House, 52-53 The Mall, Ealing W5 3TA (01753 691224) (DX 5119 Ealing) e-mail: gk@fortsolicitors.com Vice Presidents: ALAN WILLIAMS 59 St Marys Road, Ealing W5 5RG
Professor Malcolm Davies Head of Ealing Law School University of West London St. Marys Road, Ealing W 5RF (020 8231 2226) e-mail: malcolm.davies@tvu.ac.uk
(07973 622312) e-mail: creativewit@tiscali.co.uk
W J C Berry, AS Atchison, L M Oliver, S W Booth, D D P Debidin, R E J Hansom, E H Lock, Mrs A Taylor, Mrs N Desor, Ms M Hutchinson, M Guyer, R S Drepaul, A Sriharan, Ms M Fernandes, A Darlington, S Chhokar, Ms M Crowley, Professor M Davies, S Hobbs, Mrs R Sriharan, Mrs S Scott Hunt, D Webb.
Hardeep Dhillon of Desor & Co,
PARLIAMENTARY LIAISON
768 Uxbridge Road, Hayes, UB4 0RU
Michael Garson
Honorary Secretary
(020 8569 0708) (DX 44657 Hayes 1 Middlesex)
MAURICE GUYER
e-mail: hardeep@desorandco.co.uk
Vickers & Co. 183 Uxbridge Road, Ealing W13 9AA (020 8579 2559) (DX 5104 Ealing) e-mail: mguyer@vickers-solicitors.co.uk Honorary Treasurer: LAURA VIRCAN Desor & Co.
Stephen Hodgson Lecturer in Law, Ealing Law School University of West London St Marys Road, Ealing W5 5RF (020 8231 2406) e-mail: stephen.hodgson@uwl.ac.uk
768 Uxbridge Road, Hayes, UB4 0RU (020 8569 0708) (DX 44657 Hayes 1 Middlesex)
Maralyn Hutchinson of Kagan Moss
e-mail: laura@desorandco.co.uk
22 The Causeway, Teddington, Middx TW11 0HF
Honorary Social Secretary:
e-mail: maralyn.hutchinson@kaganmoss.co.uk
(020 8977 6633) (DX 35250 Teddington) ALAN WILLIAMS 59 St Marys Road, Ealing W5 5RG
Fahmy Mohamed of Vincent Solicitors
(07973 622312)
11-13 South Road, Southall, UB1 1SU
e-mail: creativewit@tiscali.co.uk
(020 8574 0666) e-mail: fahmy@vincentsolicitors.com
Honorary Membership Secretary: SUSAN SCOTT-HUNT Principal Lecturer in Law, Middlesex University The Burroughs, Hendon NW4 4BT (020 8411 6019) e-mail: s.scott-hunt@mdx.ac.uk
Ariya Sriharan of Sriharans 223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3) e-mail: info@sriharanssolicitors.co.uk
Council Members for the Middlesex Area:
Renuka Sriharan of Sriharans
Central & South Middlesex
223 The Broadway, Southall UB1 1ND
Michael Garson
(020 8843 9974) (DX 119583 Southall 3)
Kagan Moss
e-mail: info@sriharanssolicitors.co.uk
22 The Causeway, Teddington TW11 0HF (020 8977 6633) (DX 35250 Teddington)
Elisabeth van der Weit of Hameed & Co.
e-mail: michael.garson@kaganmoss.co.uk
4 Grand Parade, Forty Avenue, Wembley Park, HA9 9JS (020 8904 4900)
North Middlesex Michael Singleton
e-mail: hameed@hameed.plus.com
Singletons Austin Ryder 2 Crossfield Chambers, Gladbeck Way, Enfield EN2 7HT
Darrell Webb
(020 8367 0387) (DX 90604 Enfield)
Lyndales Solicitors
e-mail: michael.singleton@singletonsuk.com
Lynton House, 7-12 Tavistock Square, London WC1H 9LT (020 7391 1000) (DX: 122014 Tavistock Sq.2)
The Law Society Greater London Regional Office,
e-mail: Darrell@lyndales.co.uk
The Law Society, 113 Chancery Lane, London WC2A 1PL
Alexis Ash of Iliffes Booth Bennett Solicitors
(020 7316 5554) (DX 56 London/Chancery Lane)
Capital Court, 30 Windsor Street, Uxbridge UB8 1AB
Regional Manager: Mark Hudson
(08456 381 381) (DX 45105 Uxbridge)
e-mail: mark.hudson@lawsociety.org.uk
e-mail: alexis.ash@ibblaw.co.uk
4 The Bill of Middlesex
www.middlesex-law.co.uk
introduction
President’s Review Since the last Bill of Middlesex I attended another meeting of the Southern Area Association of Law Societies. The following topics were discussed.
T
he Law Society Strategy and Governance Review - launched in November 2015, is being undertaken in order to ensure that its structures are fit for purpose in order to deliver its new strategy. All members were strongly encouraged to provide their input.
There will be changes to SDLT (Stamp Duty Land Tax payments) as the Chancellor has announced higher rates for purchases of additional residential properties, such as second homes and buy to let properties. These new rates will apply from 1st April 2016.
The matter of Criminal Legal Aid tendering was also discussed. However, since the meeting, the government has abandoned the two tier tendering scheme.
The Law Society has criticised the government’s plans to raise the small claims limit for Personal Injury claims to £5,000.00 and to stop compensation payments for road traffic “minor” soft tissue injuries.
I would like to take this opportunity to thank all Members, (committee and otherwise), who have made my time as President an enjoyable one. Kind Regards,
GURMEET KHARAUD
Veyo - The Law Society backed Veyo e-conveyancing project has been wound up. This was a largely commercial decision because new providers have entered the market. A lot of time, energy and money had been invested at the heart of the project only for it to be withdrawn. It is hoped that the lessons learnt will be taken forward to ensure that a similar situation does not occur in the future. Clinical Negligence Fixed Costs Proposals - The government intends to consult on the introduction of fixed recoverable costs in “lower value” clinical negligence claims of up to £250,000, as well as on a cap on fees for expert reports. The Law Society has responded to the review on the structure of the Civil Courts in England and Wales.
President, Middlesex Law Society e-mail: gk@fortsolicitors.com
The SRA has outlined its vision for the future. It is pushing ahead with a fundamental shift away from prescriptive rules in favour of protecting the public by setting out the principles Solicitors should follow. A review has been launched with a publication of a position paper committing to further simplify the SRA’s overall approach and the handbook. The SRA’s plans are to give Legal firms greater freedom to run their businesses and to help firms adapt to the rapidly changing legal market. The Middlesex Law Society has started revamping its website which should be operational in the next few months. Finally, my tenure as President comes to an end this year at the next AGM and
The Bill of Middlesex 5
council members
Do Principles count? by Michael Garson Critical shocks to the development of the legal profession have been occurring with alarming regularity. The start of the new year has brought an announcement of a Market Study by the Competition and Marketing Authority (CMA) that comes hard on the heels of the consultations announced at the back end of last year by the SRA and then the Treasury. These had two main thrusts - first, structural separation of the regulatory bodies from their representative hosts and secondly, the further simplification of regulation requiring fewer prescriptive rules of conduct and allowing more ‘freedom to innovate’ When I wrote about the consultations on further reform by SRA and Treasury in the last edition of the Bill I could not have imagined that the CMA would be invited in to carry out their study. This very much reinforces government determination to de-regulate and free up enterprise in all markets and also brings back memories of the way the OFT report ‘Competition in the Professions’ (OFT 328), published in 2001, set the backdrop for the Clementi report, the Legal Services Act 2007 (LSA) and all that has followed. The CMA’s market study plans to examine 3 key issues: 1 ‘Whether customers can drive effective competition by making informed purchasing decisions; 2 whether customers are adequately protected from potential harm or can obtain satisfactory redress if legal services go wrong; 3 how regulation and the regulatory framework impact on competition for the supply of legal services.
whilst failure undermines the ethos of a legal profession, this does not matter greatly to the regulators. All ventures are regarded as a beneficial stimulus as, by the acceptance of risk, they disrupt the market and are considered to help the sector to become innovative. The argument that these policies run contrary to professional principles, or that they threaten the independence of the legal profession, do not reach any listening ears within government or politicians of any colour. The fact that the reputation of the legal profession has suffered damage is of little concern to those who work to bring an end to the established professions in the role they have occupied over the last fifty years.
“…….Not being equipped with the necessary knowledge stops customers exercising choice and prevents competition working effectively. We want to see if some customers end up paying more than they expected or receive a poor service. We also think there may be questions over the redress available if this does happen.’
The good reputation of the profession is not assisted by the ventilation in the press of cases of insurance fraud and the high levels of costs that now prompt initiatives to bring in fixed fees. The importance of access to justice is a concept that has just been recognised by the MOJ by way of its climbdown on the dual contract for criminal legal aid and yet, incredibly, fixed fees would run a very similar risk of preventing parties from obtaining justice from the courts. There appears to be no recognition that the high cost of litigation cannot be avoided unless the complexity of the procedure rules, required by the judges for the conduct of cases in the courts, are relaxed.
The LSA has already ended the exclusive ownership of law firms by legally qualified professionals. However it has not brought the desired ‘opening up’ of legal services to meet ‘unmet needs’; nor has it led to reduction in legal costs. Quite the contrary. It has led to a focus by the market in areas which offer potential for short term profit and drawn investment to exploit them. The new style of enterprises are not always successful and,
With a Lord Chancellor sitting in the cabinet, appointed from the House of Commons ,and not drawn from the legal profession, it is hard to have any confidence that there is recognition within government of the constitutional position or the importance of the independence of lawyers and of the legal process necessary to protect the rule of law. This is a theme without support in the current political climate and so this article will focus
6 The Bill of Middlesex
Pictured: Michael Garson
on the possible consequences of the next round of changes heralded. Permitting lawyers to own and manage businesses other than their own regulated law firms, was made possible by the SRA from 1 November 2015 (revision 15 of the Handbook). Such businesses can offer any service including legal activities that are not reserved under the LSA. This, by way of example, enables solicitors to manage will writing or employment businesses, outside of the regulated environment of their regulated firms. However this change does not go far enough for the LSB whose perspective is that ‘A major problem in legal services is that a large proportion of the population and small businesses cannot afford such critical services.’ ‘The functioning of the legal services market has without doubt improved since the introduction of the Legal Services Act but it still has a long way to go before it can be said that it is an effective market’. The Treasury solution is for conveyancing and probate services to be opened up to market competition; that seems to suggest that the organisations providing the services will not need to be regulated entities. Unless the requirement remains that only a qualified and regulated person may deliver reserved activities this would challenge the fundamentals of the Legal Services Act and the Solicitors Acts (1957-1974) before that. It would appear to be an almost forgone conclusion that the regulation of the legal services sector in future (post 2018?) will be carried out by a totally separate agency set up for that purpose. That body might be charged with the licensing of any organisation that is permitted to offer certain legal
council members services. The definition of what matters are in need of being ‘regulated’ is a crucial first step; it could be wider than the existing reserved legal activities or indeed narrower. Once the services to be regulated are defined then the regulatory requirements will need to be scoped. This has hitherto been a matter for consultation by the regulatory bodies such as the SRA who have attempted to win the support of the profession; that would no longer be necessary. Currently the SRA perspective is: ‘What more should we be doing to make sure that people understand what protection and redress they have - or do not have - if things do go wrong? Do we really need such complex and restrictive rules when solicitors are already bound by core professional standards and principles such as integrity, confidentiality and independence? Freeing up businesses to do business benefits everyone and we need to do more to help and make sure we do not hinder. Does it make sense that the public cannot access legal advice from a solicitor unless they go to an organisation authorised by a legal regulator?
After all, people trust solicitors to look after their interests at some of the most difficult times in their lives, and even to attend court on their behalf, yet there are restrictions on the type of organisation solicitors can work in.’ If a single external regulator is established then one could see that solicitors might have to compete for say, conveyancing, with estate agents. Estate agents have to comply with consumer legislation and basic regulation in relation to holding money, complaints handling and, if they belong to a professional body, insurance is required and although estate agents are not fully regulated they are subject to money laundering requirements. However compulsory regulation of standards is absent and cardinal principles with which solicitors will be familiar, such as undertakings and conflicts of interest, are not part of the normal currency and have less prominence. If a single legal services regulator is to set rules and policy for barristers, solicitors, licensed conveyancers et al, then it can hardly be in a position to also award the qualification for a professional title. That must surely be for any organised group to decide for itself.
Solicitors would be in competition within a larger market than currently and would need to decide whether rules of conduct similar to those operated by the SRA are necessary or appropriate to the profession. The SRA would cease to exist as such. However the organisations to which any barristers, solicitors, licensed conveyancers or legal executives belong, may wish to set up compliance and enforcement capability to ensure that adopted membership standards are maintained by those who choose to join. Whilst solicitors would not be obliged to pay for the SRA they would be required to pay fees to the new legal services regulator. Many solicitors would expect their representative body to set the standard for entry into the solicitors’ profession, provide training and practice, help and lobbying. The profession may have a range of views on the future of their profession and these will be articulated over the coming months in these columns and elsewhere.
Michael Garson Council Member Law Society Treasurer and Chair of Management Board
The Bill of Middlesex 7
local news council members
May you live in interesting times Welcome to the latest issue of “The Bill of Middlesex.”
A
s I write this seismic changes are taking place within our Profession.
In the Solicitors Regulation Authority, we have a regulator which appears to believe that competition must be increased at all costs even if it means abandoning or diluting our deeply held values.
Such a move might have the consequence, intended or otherwise, of silencing or diminishing any voice of dissent coming from the representative Law Society by means of reducing its funding.
It acts as though the only way to bring down the cost of legal representation is by means of increasing competition so as to meet “unmet demand.”
It is debatable whether such a move would, in fact, generate any savings since, at present, the Law Society shares many administrative functions with the SRA to the benefit of the SRA and the finances of the profession.
Instead of bringing unregulated competitors up to our high standards it seeks to diminish ours.
Divorce from the Law Society would be costly and the Profession would end up footing the bill.
It fails to understand the Profession and, as a consequence, is pulling it apart brick by brick.
Proposed changes in training, if implemented, will lead to all Solicitors sitting a central exam with worries about its effectiveness and the lack of emphasis on practical office based experience.
Over the last two years it has tried to reduce client protection by means of seeking to restrict the minimum amount of indemnity insurance that a firm is required to have. The difference between regulated and unregulated businesses is now blurred. Solicitors can now own unregulated businesses but the rules over the part they can or cannot play in those unregulated businesses is unclear.
finally abandoned its proposals for two tier criminal contracting. Let us hope that any new proposals are no worse those which have been abandoned. I grieve for those firms who have ceased to trade as a result of the uncertainty caused by the two tier proposals and for all those who have lost their jobs. The Profession will be poorer for the demise of those firms. I also grieve for those left standing who were forced to pour money, resources, and time into a scheme which was flawed from the start. Please note that these are my own personal thoughts and do not reflect the views or Policy of the Middlesex Law Society or of The Law Society.
This might result in less rounded Solicitors Enjoy this issue! qualifying in the future. Finally, as Michael Garson, points out, in this issue, the Competition and Markets Authority investigation, into the Legal Profession, poses its own threats. Our Profession is in a state of reflection as it prepares itself for the future.
The SRA talks about independence from the Law Society in circumstances where it already is, for all intents and purposes, operationally independent.
Under the auspices of the new CEO of the Law Society, a new strategy has been formulated for the Society and a review of its Governance is under way.
The Law Society currently has little power to restrict the SRA in what it does.
These are indeed interesting, but uneasy times, to be a Solicitor, a Law Society Council Member and a Committee Member of the Middlesex Law Society.
The only way in which the SRA could be more independent were if it were to have power to levy dues from the profession directly rather than via the Law Society.
SUNDEEP BHATIA
SUNDEEP BHATIA Editor of The Bill of Middlesex Middlesex Law Society Committee Member. Law Society Council Member for Ethnic Minority Solicitors
In a rare outbreak of common sense, I am glad to see that the Government has
The Bill of Middlesex 9
council members
Law Society Council meeting summary: 10 January 2016
C
ouncil's first meeting of the 2016 calendar year saw a busy programme of reports and papers. Among these, Council was updated on early progress on the review of the governance of the Law Society. The independent lead, Dr Nicola Nicholls LVO, had conducted a number of one-to-one meetings with Council members and others. A preparatory meeting of the governance review working group had been held, and several streams of research and other work were under way. The Council agreed that the review would help ensure that the Law Society was able to deliver its strategy, representing, promoting and supporting the profession effectively, and to respond in a flexible and agile way to changes in the external environment. Further updates will be provided as thinking develops. Council was also delighted to congratulate Carolyn Kirby, Council member for Mid and West Wales, on her OBE for services to justice and cancer care, and Professor Sara Chandler, Council member for the voluntary sector, on becoming QC honoris causa.
Promoting the profession market and regulatory change Council heard that we had launched at the end of January a report on the future of legal services, identifying the drivers for change in the market. We will be engaging actively with the Competition and Markets Authority on its study of the supply of legal services in England and Wales, which is looking particularly at whether customers can drive effective competition by the nature of their buying decisions, whether they are well protected if things go wrong, and how regulation impacts on competition for the supply of services. Our view is that it is not equitable for solicitors to be disadvantages by burdensome regulation while unregulated competitors provide services without the same levels of protection for the public.
10 The Bill of Middlesex
Council also noted that HM Treasury's policy paper which trailed a forthcoming consultation by the Ministry of Justice on the separation of the representative bodies from the regulatory bodies in legal services provides another opportunity to ensure we are well able to support the profession and its clients. We have already begun considering its implications. Our view is that regulation of legal services needs to be simpler, with the regulator setting minimum rules so that consumers are protected when they buy legal services from any provider, and that the legal profession must remain independent of the State and should take responsibility for professional standards.
Representing the profession legal updates Council noted that we are currently developing our own proposals in response to the possible introduction of fixed fees in some clinical negligence cases - entailing a measure of frontloading to strengthen the triaging of claims and improve the prospects of early settlement while ensuring that access to justice is maintained. Council discussed the importance of our continuing strong efforts to secure clear statutory protection of legal professional privilege in the Investigatory Powers Bill. While it was acknowledged that, even if not directly mentioned, the concept would remain, explicit statutory provision was seen as affording key protection against possible future erosion of legal professional privilege. It was noted that we have responded to 25 consultations since the last report, and are continuing to engage actively with the SRA consultation on legal education and training.
Supporting the profession engagement and other activity The CEO reported on a wide range of activity and events. Within the profession, our relationship management team has been meeting with in-house lawyers, an increasingly important sector of our membership. My Law Society, which allows members' website experience to be tailored to their interests, is now live. From an international perspective, the Law Society hosted an event to mark the EU ratification of the Choice of Courts Convention, an important mechanism for promoting international trade and investment. It was also noted that, following the launch of the Law Society's business plan in October, robust internal monitoring mechanisms had been developed. The Chair of the SRA Board (Enid Rowlands, the first lay chair) and the SRA Chief Executive (Paul Philip) attended to present their annual report to Council, mentioning for example a number of areas where the SRA was taking action to improve operational effectiveness.
Equality, diversity and inclusion Council discussed the Law Society's equality and diversity framework 20162019, which provides the strategic direction for the Society's work in this area, and was pleased to note its close alignment to the Society's business plan. Priorities will include the Diversity and Inclusion Charter, by which we promote diversity and inclusion within the profession; work with a range of groups to improve career progression for currently under-represented groups; work to facilitate solicitor access to the judicial appointments process; rolling out equality impact assessment across all the Society's functions; and a number of measures to sustain and improve internal Law Society practice.
interview
“ TO BE A LAW OFFICER IS TO BE IN HELL ” SAID SIR PATRICK HASTINGS So what is the job of Attorney General like today? The Attorney General’s role goes back to at least 13th century, and probably much earlier if it had been possible to keep records because of the nature of the appointment. And it is a fascinating role for an MP lawyer to perform as the government’s “personal lawyer”… breaking the bad news to the cabinet!
Jeremy Wright QC MP, interviewed by Phillip Taylor MBE of Richmond Green Chambers. We have seen interesting occupiers of that office over the centuries and have given the name “Attorney General” to many different legal jurisdictions the world over where some notable names of history crop up (Bobby Kennedy to name just one). And I have met a few of them in over forty years in politics and the law, so has the role and the legal personality changed at all? “No” and “Yes”, in all probability. And so it was with some eager anticipation that I met the current Attorney, Jeremy Wright, recently in his office in the Commons. For historic purposes, the post is stated as emerging around 1243, when a professional lawyer (of course he was, and I hope he got paid on time) was hired to represent the monarch’s interests in court. It has developed into a political and a demanding - role with Patrick Hastings writing: ’to be a law officer is to be in hell’. Well I did not see much of that, the brimstone and the very hot temperature that is, when I entered the AG’s office tucked behind the central lobby. Jeremy is a very modern attorney general and we had met before during his time as Prisons Minister in the last Parliament so he comes to us with some previous. Well, is he “in Hell”? ‘Far from it’, says Wright, when we discuss what he does and his future plans “in the hot seat” after
his steep learning curve. He clearly relishes the role and its heavy workload with that advocate’s gloss we would expect, and he has the air of pleasantness and “unstuffability” which is possibly why the PM appointed him at such a young age! Wright has been in post for around 18 months with his deputy, Robert Buckland QC MP, the solicitor general. Both are young (Wright is one of the youngest attorneys since the 1600s), from the provincial Bar, and began practice in the criminal courts on circuit. It is law officer work that is fascinating for any barrister. The attorney general is officially the leader of the Bar of England and Wales and presides over its annual meeting when time permits. The attorney and the solicitor general attend Bar Council meetings and events, such as the Bar Conference regularly. Both officers review all the unduly lenient sentence cases, some 400 a year, a ‘relatively steady number’, where about 80 per cent of sentences are changed. A recent proposed reform from the attorney general is beginning, as a pilot, for a broader cadre of counsel to pursue cases of undue sentence leniency, rather than just leaving proceedings in the hands of treasury counsel. And it seems this proposal has been met with approval. I suggested that this might be a taste of things to come, leading to a ‘closer working relationship’ with the advocate general for Scotland, Lord Keen of Elie QC. Another area is where the attorney general ‘straddles’ departments, offering legal advice to ministerial colleagues
based on their requests to him - advice that is - ‘given in a way which is comprehensive and more likely to be accepted’ coming from his department. The days where individual departments now speak to each other has arrived, certainly as far as legal advice is concerned, after years of little liaison. On hard cases, Wright’s view is that where there are difficulties he ‘will never compromise on the integrity of the advice given’, which illustrates very much what he sees as the independence of his role within government: ‘It is the need to know, and not what you want to hear.’ Much the same, then, as the approach taken by a practising barrister, only your client is the government. The attorney general does not attend court as often as some of his predecessors did, although the solicitor general does appear regularly. So, what of today’s advocacy standards? The law officer team, for that is what they are, are very much a modern product of the development of a high-quality Bar for England and Wales. Both officers have regular talks with the judiciary and the profession ‘to stand up for the interests of the client’, retaining the ‘cab rank’ principle, something Wright says ‘we must be proud of at all times, especially was the Young Bar going through tough times as we maintain the highest standards of advocacy’. Lawyers should be in no doubt that there is a reforming wind blowing through our corridors at the moment for this parliament - and it is quickening its pace.
The Bill of Middlesex 11
news
REMEMBERING DAVID BARNES by Lesley Barnes
David and I met, aged 5, at Grange Primary School in Ealing. We didn’t take much notice of each other. He was football mad, that’s all I remember. I don’t know what he thought of me. We went to separate Grammar Schools. However, it was a different story when he transferred to my school in the sixth form. With a little help from my friend Jane we were an item by Christmas 1969, and were together continuously until he died. We married in 1975. David came from a middle class, Socialist family. I was from a working class Conservative one. David was already canvassing on doorsteps and selling the Socialist Worker at Ealing Broadway Station. He had an enormous sense of justice. When he and I came to our Christian faith in our late teens it was like a chemical reaction for David. The two things, Socialism and Christianity, were a powerful combination. As soon as he began studying Law at the London School of Economics he joined a centre giving out free legal advice. He continued doing this until the mid-eighties. He became a deacon, and later an elder, in our church. He practised family law and then criminal law in local firms, spending hours in various local police stations, at different times of the day and night. In the late eighties, and I’m not quite sure how this happened, he was appointed to a panel of lawyers who are approved to work on children’s cases and, thus, for the next 30 years, he represented children who were likely to be taken into care and the parents of children who may be removed from them and fostered or adopted. It was difficult work but he did it with great compassion and tenacity. He usually did his own advocacy rather than use a barrister. He was in court on one such case the day before he died. Outside of work life was never dull. Once the children were older David was always searching around for things to be involved in. We joined Choices, a group supporting women who are experiencing a crisis pregnancy, in about 1997. He was still on the board of trustees when he died and did the help-line and gave face to face advice. We saw a teenaged couple together only a few weeks ago. He was on the board of the West London YMCA until he wasn’t allowed to serve any longer due to length of service. Over the last 5 years he was a trustee of the Ealing Churches Winter Night Shelter providing a bed, food and advice for the homeless during the worst of the winter. Just recently he became concerned for the stream of refugees in Europe and was trying to organise a trip to Calais. Once a month, for the last few years, he would take a service on a Sunday afternoon at a local home for the elderly. Everything he did he did because he enjoyed it.
12 The Bill of Middlesex
When our first child, Rosie, was born in 1979 David looked at her and said “Now, our job is to make her independent” I was horrified! However, that is what he did. He gave all of them - Peter, Tom and Elaine followed all the love they needed to go out into the world. They played outside, went to the park, caught the bus, all earlier than their friends; and they were never allowed to win at Monopoly except by merit. He also vowed never to make them be something they didn’t want to be. It worked. We have four lovely children with lovely partners plus grandchildren and they are all happy in their chosen careers. David wasn’t perfect. He was very untidy, had no interest in DIY or gardening and couldn’t care less about money. He didn’t drive, I’m sure, because you can’t read whilst driving as you can on a bus or train. Our dining room table groaned underneath the weight of all the books he was reading. Rumour has it that his office at Vickers and Co was a no go area; but he had an extremely organised mind. Although he didn’t keep a diary he rarely forgot an appointment and if you needed advice you could count on him to clarify any situation and make it easier for you to make decisions. He never criticised me although I criticised him a lot! We rarely argued
because, if I tried to pick a fight, he would close his mouth and walk away. He encouraged me in everything I did and encouraged me to do more than I thought I was able to do. What will I miss most about him? His wisdom, his sense of humour and his singing. David died of a heart attack whilst watching a local football team, North Greenford Utd, on November 28th last year. He was 62. During his career in Ealing he worked first for Leslie Oliver & Co. and later for Vickers & Co.
Lesley Barnes
Established since 1964, we have achieved 50 years of providing accountancy excellence to businesses in and around London and further afield in the United Kingdom. Our strength comes from our determination, our commitment to our clients and ability to face challenges of the economic climate without compromising the quality of our services, for which we are justifiably very proud. Our firm is structured into departments for Taxation, Audit, Accountancy, Book-keeping and Payroll, IT Systems and Company Secretarial Service.
Our specialisation includes Reports on Solicitors Accounts Rules. Our office on Ritz Parade, London W5 3RA, next to “Premier Inn London” is situated adjacent to the Hanger Lane and Park Royal Underground Tube Stations and is well placed for London and its surrounding environs. Call: Arvind Joshi FCA, CTA, DChA Tel: 020 8932 1932 Fax: 020 8932 0122 arvind@levyandpartners.com www.levyandpartners.com
news
The following obituary is reproduced with the kind permission of the Association of Lawyers for children My colleague David Barnes died unexpectedly on 28th November 2015. He was 62. David joined the Law Society’s Children Panel in the 1980s and was a regular attender at the annual conference of the ALC. He was modest and self-deprecating and fond of telling us how at the LSE he had been in the shadow of Cherie Blair who had graduated in the same year. The truth was that he had a phenomenal intellect that he put to good use. David was the person you turned to for advice. One solicitor when offering her condolences mentioned how although she had never met him, she had found the advice he gave on the children panel message board so helpful. More than once after his death I caught myself halfway to his room to seek his advice before realising he wasn’t there to ask. David was a partner in Leslie Oliver & Co. before that firm merged with my own. His
style as a solicitor was not so much avuncular as paternal: the mothers and fathers he advised were his daughters and sons; the children for whom he acted, his grandchildren. David loved the Church: there was always a book on Christianity in his room. He became a deacon and later an elder in his local church; and he took a monthly service at a home for the elderly. And football. David loved football. I once tried to impress him by telling him how I had been to some important international at Wembley, before being told how he had also been at Wembley, in 1966, for a World Cup final. David’s team was Chelsea. But David loved all football. He would seek out a local match to attend after each year’s ALC conference. And it is perhaps fitting that on the Saturday afternoon that he had his heart attack, he was at North Greenford United watching his local amateur side.
David wasn’t perfect: we knew when he had been in the kitchen as the milk would be left out; there was always at least one stain on his tie; his room wasn’t the tidiest; and not caring about money, he wasn’t the highest biller in the office. David loved people. He cared for everyone, even the most difficult of clients. He was generous with his time: at university he joined a centre giving out free legal advice; he joined Choices, a group supporting women experiencing crisis pregnancies; he was on the board of West London YMCA; and he was a trustee and helper at the Ealing Churches Winter Night Shelter providing a bed, food and advice for the homeless during the worst of the winter. Above all, David loved his family, his wife of forty years, Lesley, whom he had known since school, his four children and his grandchildren. And they, and we, loved him. David, we miss you. Maurice Guyer
The Bill of Middlesex 13
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news
Organise Your Firm to Grow Your Profits
by Richard Hugo-Hamman
The true growth of any business is through an increase in profit. It is a common misconception among owners of small law firms that growth is measured by the number of people in the business. Over the years, I have spoken with many partners in small law firms, and as soon as the word ‘growth’ is mentioned, they react, usually with alarm and a statement similar to: “No! I don’t want any more partners!” However, the meaning of growth is misunderstood. The true growth of any business is through an increase in profit.
Cut Costs or Improve Efficiency From a revenue perspective, simply increasing charge rates to improve the bottom line is not as easy as it sounds. Rates, whether fixed-fee or time-based, are controlled by powerful market forces. For most small practices, the need to offer affordable services constrains pricing. Most people find it difficult to pay legal fees, so you may have to cut costs or improve efficiency to increase your profits. Staff costs are the biggest expense and the only variable where changes can have impact. Your options are to either reduce staff or get existing staff to do more. An effective way to achieve either of these objectives is to improve your business’s efficiency by using the right technology. The rise of self checkins/check-outs at airports and supermarkets provides clear signposts for the future.
Intense competition has made technology cheaper than ever; assuming you have the right staff, investing in the right technology is the best way to increase efficiency - and profits. Some small law firms find it difficult to find suitable support staff - such as legal accountants, administrative assistants, and junior lawyers particularly those based outside of larger towns and cities. Possible solutions to this problem include: • Giving your staff the tools they need to do more work faster. • Delegating routine work to existing staff so that you can do the high-value work. • Reducing legal accounting costs by reengineering the way you do your matter accounting so you can use part-time bookkeepers.
9-Point Plan to Increase Profits 1. Organise your data into a single database. 2. Organise your template documents and matter documents. 3. Organise your communication documents. 4. Organise your Safe Custody contents. 5. Be disciplined about time recording. 6. Produce bills regularly for smaller amounts. 7. Collect what people owe. 8. Involve yourself in the change project. 9. Act today!
If you follow this plan, you will see your profits grow without having to employ extra staff. There are many reasons to do nothing: partnership difficulties, thoughts of retirement, being busy, general inertia, etc. Complaining is easier than doing. However, to grow the profitability of your firm while providing a better service to your clients, you must change something. Organising your practice by introducing software will allow you to fine-tune the balance between the work you have and the people you have working for you. But which software solution is the right one for your practice? One relatively quick and easy way to do this is to hire a team of experienced practice advisers who can help you make the right decisions for your firm, assist with the deployment and training, and provide the longterm support you need to enable you to concentrate on your clients - not on the technology. Richard Hugo-Hamman is the Executive Chairman of LEAP Legal Software. He has thought about the challenges facing small law firms for more than 25 years and has visited thousands of law firms on three continents. www.leap.co.uk.
New year bring exciting changes at Quainton Hall School! As from January, the school is now offering a minibus service for children from points across: Rickmansworth, Watford, Northwood, Ruislip, Pinner, Edgware, Stanmore, Wealdstone, Northolt, Wembley, and Kenton. Escorts, as well as drivers, will be on the minibuses initially to assist children. Later this year the school will open a new extended nursery and reception class annex on Radnor Road. With space for 40 nursery children and 2 reception classes, outdoor play space, and use of the outstanding facilities of the adjoining main school, this development will be a welcome choice for local parents from September 2016.
The Bill of Middlesex 15
news Olswang London and Munich Corporate teams advise on digital agency CONRAD CAINE’s acquisition by WPP’s POSSIBLE Worldwide International technology, media and telecoms law firm Olswang’s London and Munich Corporate teams have advised the founders of Munich-headquartered digital agency CONRAD CAINE GmbH on its majority stake acquisition by creative agency POSSIBLE Worldwide, a subsidiary of international communications services group WPP Plc. CONRAD CAINE’s award-winning online, mobile, video and social campaign work for global and local brands, such as Siemens, Deutsche Bank and Goodyear Dunlop, strengthens POSSIBLE Worldwide’s expanding digital footprint and makes Germany WPP’s fourth-largest market after the US, UK and China. Olswang Partner and Head of Corporate Mark Bertram commented: “We have been working with Conrad and Christoph who founded the agency in 1998 and have grown it into
one of the most successful independent digital agencies in Germany. The agency’s footprint in Western Europe and South America made it a particularly attractive growth opportunity for WPP and POSSIBLE. Our M&A teams in London and Munich worked closely to deliver this and it was excellent to combine the strength of each.” Olswang Partner and Head of Corporate Mark Bertram led the deal from London with assistance from Corporate Associates Philip Walton and Rebecca Davis. Olswang Munich Corporate Partner Robert Heym and Counsel Theresia Gondro provided Conrad Caine with German corporate law advice and Counsel Oliver Heeder provided German employment law advice. Read more about Olswang’s international Corporate Practice on the firm’s website.
www.olswang.com
Get Connected at the next LPC event... Looking to meet property professionals in the residential and commercial sector? London Property Connections (LPC) is a group dedicated to bringing together people from all sections of the property industry (Lawyers, Surveyors, Photo: Chandra Sharma Estate Agents, Tax Advisors, Investors, Property Managers & Architects) in an informal way. The next London Property Connection event is on Thursday 17th March between 6pm - 9pm at the Slug & Lettuce, Fetter Lane, London. This is free to attend and is open to anyone who is involved in property. We provide two free drinks and some nibbles. London Property Connections would encourage all to attend so that we can introduce you to
new people and other LPC members in the sector that may be of interest to you. In order that you get the most effective time from networking, we would recommend that you join the group and register for the event. Registration is free. Simply click on the link: www.meetup.com/londonproperty-connection
Funding › Research › Cure
Give life through a legacy WE WILL USE YOUR LEGACY TO: › Improve the quality of life of those suffering with kidney disease › Finance equipment and research projects › Support research into the improved diagnosis and › › › ›
cure of end stage renal failure Improve the understanding of renal pathology Improve the care of renal patients Improve the treatment of renal disease Train and stimulate scientific, nursing and medical staff
Tel: 0208
296 3698
email: legacy@kidneyfund.org.uk website: www.kidneyfund.org.uk
South West Thames Kidney Fund, Renal Unit, St Helier Hospital, Carshalton, Surrey SM5 1AA
16 The Bill of Middlesex
Charity Reg. No. 800952
conveyancing focus
Changing behaviour in the information age by Scott Bozinis, CEO, InfoTrack
Recently, I was lucky enough to attend a Legal IT conference having been invited to sit on a panel that included Pinsent Masons LLP and Addleshaw Goddard LLP. Much of the conversation was focused on how technology can be used to improve client relationships. Photo: Scott Bozinis
A
mongst the many interesting insights, there were a few key points that clearly resonated with the audience, one of which was the issue of having to remember various logins for multiple websites that lawyers use every day. This raised a knowing chuckle amongst the audience who clearly identified with the problem of not having one central hub to access all their online processes. So why did the audience find this amusing?
We are also more astutely aware of those technologies which we genuinely enjoy using in our personal lives, thus, it is only natural that we would come to expect a similar standard of this convenience in our professional lives too. Particularly with the advent of the internet, it is clear that our attitudes and expectations are continuously evolving with regards to technological change and that there will continue to be an increasing overlap between our professional and personal worlds.
Well, it’s due to our attitudes changing over the years, bringing new expectations. I believe that now, more than ever, people are conscious of which technologies are creating efficiencies and making their day to day lives easier and which are not. Nowadays technology has become completely embedded into society in a variety of ways, and we now expect to be able to use technology in every aspect of our lives - personally, socially and professionally.
In my opinion, one of the biggest changes to behaviour over the last 20 years has been the result of technology changes. We have come to expect ‘instant gratification’, or our need for everything to be easier, faster, flexible, and efficient, and to be at our fingertips. Some may argue that technology has turned humans into a lazy, lethargic species, however, I would counter that it is simply a shift in attitude, in that we now know there are smarter ways to achieve our goals, whether that’s at home or at work.
It used to be that we had to learn to adapt to technology, but today, technology is built to adapt to us. You will find it permeates our lives everywhere you look - just think smart thermostats that conserve energy, online shopping sites that tell you what other products you may ‘also like’, navigating a foreign city using Google maps, or even setting up automatic payments through online banking. So why wouldn’t we naturally expect this in our working lives too? We now co-exist with technology and going forward, we must adapt together to ensure a smooth evolvement and optimal efficiencies. Once this coexistence is noted and implemented in professional environments, the results will show why employing intuitive technology in the workplace is so essential. This is why I believe that conveyancers must also evolve with technology, and that those in management must focus on satisfying the needs of those at the coalface to make their work lives easier and get staff working smarter, not harder.
Middlesex Law Society (est. 1959)
A P P L I C AT I O N
for
MEMBERSHIP
Surname _______________________________________________________________________________________________________________ Mr / Mrs / Miss / Ms Forenames _______________________________________________________________________________________________________________________________ Name of Firm or Organisation ______________________________________________________________________________________________________________ Postal Address or DX no: __________________________________________________________________________________________________________________ Telephone ________________________________________________________________________________________________________________________________ Email ____________________________________________________________________________________________________________________________________ Status & Area of Work _______________________________________________ Date of Admission _____________________________________________________ Would you be interested in joining the Committee? Yes/No I wish to apply for FULL/FIRM/ACADEMIC/ASSOCIATE/STUDENT (YMG) membership of the Society (see below for details) I enclose herewith my cheque for £ _________ for the current year, made payable to "Middlesex Law Society"
Signature ____________________________________________________________ Date _______________________________________________________________ Subscription Rates: Full Individual Membership: £50.00 per annum (more than 3 years admission) £30.00 per annum (less than 3 years admission) Firm Membership: Partners/Solicitors 2-5 £125 per annum 6-10 £250 per annum more than 10 £500 per annum Academic Law Departments: £200 per annum Associate Membership: £15.00 per annum (Trainee Solicitors, ILEX members, Paralegals) Students: £5 per annum (Young Members Group) Please return completed form and remittance to: The Membership Secretary, Middlesex Law Society, Susan Scott-Hunt, Middlesex University, The Burroughs, Hendon NW4 4BT
Tel: 020 8411 6019 e-mail: s.scott-hunt@mdx.ac.uk
The Bill of Middlesex 17
conveyancing focus
Thames Water Property Searches We are an experienced national provider of quality residential and commercial property search solutions across England and Wales. As well as being an official provider of the CON29DW Drainage & Water Enquiry, we also have a comprehensive range of property searches and discounted search packs offering convenience and value. Whether contamination and flood risk information is required, or searches on planning applications and areas licensed for fracking, we are here to meet your needs. How can we benefit your business? Ordering searches is quick and easy with our online ordering platform. In addition, we’ve got some easy-to-use online tools to help - from boundary mapping through to online search tracking (so you’ll always know what stage a search is at),
accessing accurate searches has never been easier. Our intuitive system has been shaped through feedback from our customers, ensuring it truly reflects what users expect from their perfect online conveyancing search experience. To find out more, visit us at www.thameswaterpropertysearches.co.uk • If there’s one thing we are a bit old-school about, that’s good old-fashioned customer service. We recognise the importance of providing fast, accurate and reliable information and we are passionate about the service we provide. • We’re a licensed partner of the National Land Information Service (NLIS), offering you electronic connectivity to every local authority in England and Wales therefore enabling a more cost effective and accurate transaction. This, alongside our established links with market leading suppliers, means you get direct access to all the due diligence searches you’ll ever need - and you get them from just one provider. So it doesn’t matter whether you need an environmental search, a local authority search, or chancel search you can access them all from us.
• You will also be secure in the knowledge that we are a business which is fully certified to the ISO 9001:2008: International quality management standard, so not only are we connecting you with all the right products, we also deliver them efficiently alongside a leading level of customer service. • We are dedicated to keeping our customers up to date by providing a range of free CPD training. Covering hot topics within the industry as well as addressing challenges and opportunities currently facing conveyancers, you will leave our events equipped with the knowledge to give your clients the very best advice on topics covered. If you are interested in our products and services or would like to take advantage of our free training opportunities we would love to hear from you. Simply get in touch by calling: 0845 070 9148 (Mon – Fri 9am to 5pm) or email us on: onlinecustomers@thameswater.co.uk
Flood checks set to be standard for property purchases 5th February 2016 - Environmental searches to identify risk of flooding when purchasing a house are set to become standard, reveals SearchFlow, conveyancing search provider. With the scale of devastation from flooding witnessed recently, SearchFlow’s latest quarterly survey reveals that 75% of conveyancers now believe detailed checks on flood risks will become a default search prior to purchase. Only 11% believe it will not, with the remaining 14% unsure.
Flood information on properties is included in environmental searches during the conveyancing process. SearchFlow can reveal that over the past six months, only one in five property transactions were carried out with flood reports. However, since the devastating floods over the Christmas period and throughout the winter months, there has already been a 10% increase in flood reports ordered in just one month. This is set to increase further due to the changing sentiments across the conveyancing industry.
18 The Bill of Middlesex
Maud Rousseau, group marketing and communications director of SearchFlow, comments: “It has been patently clear the impact flooding has had on homeowners. Along with the Government, many industries from insurance and conveyancing to environmental agencies have been scrutinised and criticised for their inactions towards protecting homeowners. It is reassuring to see that conveyancers are responding, and many now believe that for added protection and reassurance detailed flood risk analysis should be carried out as a standard service.” Not surprisingly, homebuyers are also very wary of purchasing a property in a flood risk area. A survey carried out by What Mortgage, a magazine for homebuyers and sellers, revealed that 82% of homebuyers stated they would definitely be put off buying a property if they were told that it was in a flood risk area, 16% were unsure and only 2% said they would not be put off. The consequences of flooding are clearly devastating for homeowners and, for many, this has been compounded by insurance premiums skyrocketing with exceedingly high excess, or worse, homeowners unable to insure their property against the risk of flood. To aid those in high risk flood areas, a joint industry and Government sponsored affordable
flood insurance scheme, Flood Re, is due to be implemented in April 2016. It will enable flood cover to be affordable for those households at highest risk of flooding. With a fixed premium geared to council tax bands, it will help limit the excess and ensure those at risk are protected with buildings and contents insurance. Maud Rousseau continues: “Anxiety about purchasing a property in a flood risk area is heightened at the moment. Homebuyers are very wise to be cautious. But for many, despite searches revealing there is a risk, it may not happen. Homebuyers simply need to be informed of any risk so they can ensure they are properly protected; just in case. “The conveyancing sector is in the best position ever to ensure homebuyers are properly protected and fully informed of potential risks prior to a purchase. Leading data search providers for the conveyancing industry are providing the most comprehensive and up-to-date data on flood risk areas, to help ensure conveyancers carry out their due diligence with confidence and reduce the chance that anything will be missed. But vigilance needs to become standard practice throughout the year, as the flooding subsides and we move into the spring and summer months, it is important that this level of caution is maintained.”
conveyancing focus
Uncertainty, The Only Sure Thing 2016 has all the signs of another uncertain year in the residential property market. With the pace of change even those in the profession and associated disciplines could be forgiven for missing the nuances that could significantly impact conveyancing in 2016 and beyond. The housing stock shortage isn’t going to be solved overnight. The potential injection of properties resulting from the Autumn Statement Stamp Duty reforms will possibly generate a flurry of activity at the lower and mid range ends of the market. Of course, there’s also the spectre of Income Tax reforms announced in the July budget which could see many small Buy to Let investors exit the market. There’s a very real chance that they will be paying more in tax and mortgage interest than their rent will cover. So what if anything could these changes mean for our national obsession with house prices? Regardless of the short term impact - a lack of new housing, depressed interest rates and
increased lending are all ingredients that will lead to further price growth. Some observers predict up to 10% increase in the average house price year on year. The new Help-to-Buy ISA, launched on 1st December means savers can earn a 25% bonus on savings towards a new home. Limited to savings of £200 a month, this could mean the initiative will have a smaller impact on firsttime buyers. The return of 95% LTV mortgages, however, and the extension of the ‘Help to Buy’ mortgage guarantee scheme is bound to have a positive impact. In 2015 the average price of a starter home increased to an all time peak of £215,000. Regardless of other programs, if this trend continues, the “Bank of Mum and Dad” is likely to continue to become the de facto norm for deposits. Alternative funding sources reinforce the need for conveyancers to employ robust Client Due Diligence (CDD). VERIPHY, a detailed, risk based and auditable electronic AML product, and others like it, will provide economical and easily accessible solutions. A conveyancer’s experience and instinct, however, are still irreplaceable as part of a best practice approach. From a conveyancer’s perspective, the potential for growth in the overall volume of housing transactions informs staffing decisions and business predictions. Observers within the conveyancing search industry suggest that housing transactions could increase by a relatively conservative 4.6%. This may not seem like much, but since many conveyancers are still struggling with how to grow a new business pipeline, even a modest increase is likely to create an impact. Many firms find themselves trying to pursue more work yet worrying how to cope if they are successful. Providing a comprehensive and ‘best practice’ compliance service is frequently found to be at odds with the profession’s approach to pricing. By quoting comprehensive search costs firms continue to fear that they will appear expensive. Yet behaving this way they
make it more difficult to justify best practice compliance. For example, since Orientfield Holdings Ltd v Bird & Bird LLP [2015], a conveyancer who fails to undertake planning and infrastructure searches as part of a routine transaction could now be considered professionally negligent. It’s difficult to speculate why a respected firm didn’t appreciate the risks associated with failing to inform a client of all potential issues. They, however, are not likely to be the last. Thankfully, more and more firms are recognising the positive impact of transparent upfront quotations which include all required and recommended searches. QualitySolicitors Parkinson Wright’s underlying focus on service and the client’s best interests has reinforced the policy that clients always receive a “Best Practice Search Pack” as standard.
Faye Green: “Since the recent judgement on the Bird & Bird Professional Negligence case our search packs include Landmark’s Plansearch Plus as well as an Energy & Infrastructure search. We believe that the client’s interests are best served by providing them with all of the information available on every transaction”. In Orientfield Holdings Ltd v Bird & Bird LLP [2015] the High Court said that a solicitor had acted negligently for failing to warn their client about plans to build two schools in the same street as the client’s new property. Who wouldn’t want to know that planning consent had been given for a school, a nightclub, high-density housing, a fireworks factory, a wind-farm, a highspeed rail link or a fracking license near their new home? Furthermore, recent changes to planning policy mean applications which may have failed in previous years may now be granted - creating more potential for aggravation. It is a legitimate expectation of a client that their conveyancer will look after their wider interests in the transaction and alert them to issues that might affect their use and enjoyment of the property in the years ahead. Firms have voluntarily paid compensation to clients in cases where they failed to raise concerns which a planning report would have pointed out. Courts, it seems, have now taken this one step further. Faye Green is a Partner and Head of Residential Property at QualitySolicitors Parkinson Wright. Andrew Stradling is Senior Legal Services Manager at Property Information Exchange and Brighter Law Solutions. Contact: andy.stradling@brighterlaw.co.uk 07775 444 402 Andy Watson is Channel Development Director at Property Information Exchange and Brighter Law Solutions. Contact: andy.watson@poweredbypie.co.uk 01189 769 479
The Bill of Middlesex 19
clinical negligence
Brain Injury Clinical Negligence Headway is a charity that supports people affected by a brain injury. In the Winter 2015 edition of Headway’s magazine the cover story relates to international para-climber Dave Bowes who competes across the world. Mr Bowes often hears people say: “but you don’t look disabled.” Brain injury is not always evident unlike some other injuries - the most obvious example being amputation. Indeed, an injury to the brain can appear to be “hidden”. Mr Bowes himself was apparently diagnosed initially with mild concussion following a motorbike accident. It seems that his serious brain injury was missed at the outset. I have acted for clients whose brain injuries caused by clinical negligence have been very obvious and for some others where the injuries were “hidden” like in Mr Bowes case. A major area of brain injury caused by clinical negligence relates to damage to children at or around the time of their birth. These cases often result in a diagnosis of cerebral palsy and such cases are still eligible for legal aid. In April 2013 the government pursuant to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed adult clinical negligence cases from legal aid save if they justified exceptional funding (which by definition would mean that such cases would be rarely funded by the LAA, i.e. the Legal Aid Agency). However, under LASPO it is very difficult to get legal aid funding for brain injured children. I act as an Independent Adjudicator for the LAA and I have seen first hand how hard it is to fulfil the LASPO criteria. I have heard lawyers complain that to get legal aid now you almost need a written admission of liability from your opponent! How different it was when I qualified back in 1991. When I first qualified legal aid was available to adults and children alike in clinical negligence matters. Although brain injured children may still be able to,
20 The Bill of Middlesex
in theory, obtain legal aid now, practitioners face other problems with legal aid not least with regard to finding experts who will accept low legal aid hourly rates. Many practitioners are now seriously asking themselves whether legal aid remains a valid option for potential claimants. Photo: Marek Bednarczyk However, the burden of paying for all the experts of capacity and this point was only needed in a cerebral palsy (CP) case can accepted shortly before her trial this year be huge. In one case I instructed about (a settlement on liability in this case has 13 experts which is by no means unusual. now received High Court approval). In this case the claimant can talk clearly and she Sadly, CP cases usually fall into the can use a computer to an extent. category of “obvious” brain injury cases. However, the difference in ability prior to Some of my clients have been blind and the negligently caused injury compared to unable to walk or talk. However, others the present situation is still significant. have had more subtle deficits. It is now Using the claimant’s own words, she is a more common to see children who suffer “one trick pony”, meaning she can cope from hypoxia at birth being treated using a with single tasks to a degree, but multiprocess called “total body cooling”. This tasking is now beyond her. Although in can improve outcomes in some cases. In this case the changes caused by brain one of my cases my child client suffered injury may appear in some respects quite from both birth hypoxia (a failure in the subtle they still remain very significant. oxygen supply) and a traumatic injury to
his skull which was fractured by a student midwife who had tried to disimpact his head in the birth canal. Initial predictions were very gloomy. Total body cooling in that case I believe saved my client from the worst effects of his birth injuries although subtle changes may still be an issue as indeed these changes can still have major consequences in the longer term. A high functioning professional lady who suffered from a subarachnoid haemorrhage, which was diagnosed and treated too late, lacked in our view, based on expert evidence, the capacity to give instructions in litigation. Despite serving two reports from a leading neuropsychologist, the two opponents in that case refused to admit my client’s lack
One of the benefits of acting as a solicitor in such cases is the advantage one gets in talking to a client, where this is possible, over a prolonged period. In one case which could be characterised as a “hidden” brain injury case, my consultant psychiatrist confirmed that my client lacked capacity to give instructions in litigation. My client was seen by another expert who was asked to look at other features of his condition but inevitably that expert had some views as to whether my client lacked capacity or not. To put it simply, this other expert did not accept what the psychiatrist had concluded. My client could handle a conversation and he was even able to study and gain a qualification. This obviously had an
clinical negligence impact on the second expert’s view on the matter. However, I had no doubt that my consultant psychiatrist was right in his conclusions because I had spoken to my client over a prolonged period spending hours with him in total. The features of his brain injury (caused by undiagnosed raised intracranial pressure) were as obvious to me as they were not obvious to my other expert who had only seen my client for a relatively brief consultation. Unless the symptoms of brain injury are modest these cases are often amongst the highest value claims one can pursue. Some claimants require 24 hour a day care packages and that head of claim can be the single highest head of claim in the whole action. Financial losses (i.e. “special damages”) often run into the millions and will involve the court making periodical payment orders to cover the claimant’s care and other needs for life. General damages for pain and suffering and loss of amenity in a case of brain injury, even in the most severe cases, may represent a fraction of the overall total claim. The current edition of the Judicial College guidelines for general damages
suggests that the maximum award for general damages in a severe brain injury case (without a10% uplift for post 1 April 2013 cases) should be around £297,000. Earlier this year following a contested trial, seven year old Eva Totham was awarded, in lump sum terms, £10.1M. The claimant’s solicitor was quoted in the press as saying that the case was not about money “it was about securing justice”. I support and sympathise with the above sentiment, but at the same time I do not underestimate the value of a financial settlement. On occasion after settling a large claim where homes have been purchased and/or adapted my client’s parents have invited me for a visit to see what has been done with the settlement monies. It is a privilege to go back and see how a good settlement can make such a positive impact and that is a great motivator. There do appear, however, dark forces at work on the horizon. Recently, of course, the Department of Health has put forward a proposal to impose fixed costs on clinical negligence cases of a value up to £250,000. Surely, severe brain injury
cases would not be affected by these proposals? However, consider the problems with legal aid mentioned above, and also consider another potential area of attack. The Medical Defence Union (MDU) has now launched a campaign to “reform personal injury law”. The MDU want to cap damages in such cases. They complain that back in 1988 the MDU paid the first £1M compensation award, but awards have greatly increased since then and the highest payment made by the MDU to date is apparently £9.2M. It seems that the MDU would like to turn the clock back to 1988. The Law Society, not that long ago, ran a campaign called “what price justice?” History may be repeating itself very soon and it looks that even the most vulnerable and deserving claimants with severe brain injury will be falling under the bean counter’s scalpel unless we are vigilant and unless we continue to work hard to gain justice for our clients.
Marek Bednarczyk from Hart Brown cited in leading journal on medical negligence Bloomsbury Professional have published the 5th edition of Clinical Negligence the only text of its kind to cover both medical and legal aspects of medical negligence. Marek Bednarczyk, a partner at Guildford based law firm Hart Brown, is one of the contributors. Marek has written the chapter on the Conduct of Proceedings jointly with Master David Cook a Clinical Negligence Master at the Royal Courts of Justice. Regarded as the “go to” publication on clinical negligence, it is written by a team of 54 experts, and provides the most comprehensive and authoritative guidance on all aspects of clinical negligence claims from bringing an action for damages to presenting expert evidence in court. It also includes detailed
consideration of funding and cost implications. Marek’s contributions to this new edition is a recognition of his expertise in the area of personal injury and clinical negligence within Hart Brown. Marek is a member of the AvMA Panel (Action Against Medical Accidents), a charitable organisation which helps people that have suffered an injury from a medical accident, by providing free and confidential advice and support. Marek has also been a long standing member of the Law Society/SRA Clinical Negligence Panel and has worked for many years dealing with legal aid appeals for the Legal Aid Agency (LAA) an organisation charged with the administration of legal aid. He has been a member of the Association of Personal Injury Lawyers (APIL) for nearly 20 years and is an accredited APIL Senior Litigator.
The Bill of Middlesex 21
clinical negligence
Common Problems in Cosmetic Surgery by Gerard Sanders
The social pressure to look good, combined with sustained and effective advertising campaigns has resulted in an exponential growth in the number of persons opting for cosmetic surgery. in terms of surgical procedures, the British Association of Aesthetic Plastic Surgeons (BAAPS) confirm 45,406 surgical procedures in 2014 alone - the most popular procedure being breast augmentation surgery - 8,619 cases. It is clear that the majority of patients have reported a successful outcome but that a significant minority have experienced a very different result. As a clinical negligence solicitor, I experience an increasing number of clients - primarily women - who have encountered devastating, even life changing consequences of cosmetic surgery. A few common problems are set out below. In the wake of the problems encountered by thousands of women who were fitted with substandard breast implants made by Poly Implant Prothese (PIP), many women have reported problems with breast implant surgery. I have seen cases involving bilateral breast implant exchange where original implants have been incorrectly removed, leading to leakage of silicone into a client’s body. These clients have reported long standing and unpleasant symptoms including fatigue, joint pain and anxiety and depression. Perhaps most commonly, women have quite simply reported that the outcome of the surgery was not what they expected and that they would not have had the surgery if they had known what the outcome would be. Clients have reported receiving implants which were far too small or implants which have led to permanent “rippling” or lumpiness. Laser treatment for birthmarks or other skin blemishes is another common source of claims. I recently successfully concluded a claim on behalf of a client who had received laser treatment which was intended to remove a birthmark. Due to the laser being incorrectly set and the client having the wrong skin patch testing at the start of her treatment, she was left with a larger, darker skin blemish then she had before the treatment started. The process of cryolipolysis - freezing of unwanted fat cells - can also lead to problems. I have been instructed by a lady who suffered significant burning to her abdomen as a result of the machine used for the process being left on her skin for too long.
22 The Bill of Middlesex
Problems following eye surgery lead many clients to instruct my firm. With blepharoplasty, the aim is to reduce bagginess from a patient’s lower eyelids and to remove excess skin from the upper eyelids. Problems arise when too much skin is removed, occasionally leaving patients unable to close their eyes or experiencing difficulties with blinking, resulting in dry eye. Laser eye surgery is popular for correcting conditions such as myopia (short sightedness) or astigmatism (blurred vision.) A popular technique is LASIK (Laser in situ Keratomileusis) which involves lasering under the cornea - the front surface of the eye - to create a thin flap. This is lifted and the exposed tissue is lasered. The flap is then repositioned and stays in place through natural suction. The flap is joined to the cornea like a hinge and can be replaced in exactly the same position. Significant mistakes can be made whilst cutting the corneal tissue, causing damage with the laser and leaving air bubbles or debris under the cornea when it is sealed. As a result of this, some of my clients have reported night vision problems, halos, star bursts and more serious and long standing visual disturbances. I recently settled a claim for a lady with problems following lens replacement surgery - a popular form of surgery which does not involve a laser. The intention of the surgery is to correct refractive errors impacting upon the eye’s focusing power. My client reported long term disturbances including blurred vision and ghosting the appearance of a partial or “ghost” image at the side of what she was focusing on. The bottom line in my experience in eye surgery cases is that patients have reported that their vision is markedly worse after the surgery than before. In addition to the physical injuries sustained as a result of botched cosmetic surgery, I notice that clients often suffer significant psychological damage. Such clients are understandably depressed as a result of often parting with thousand of pounds, having being simply sold the benefits of surgery and having been assured of the improbability of a bad outcome. The effect of that bad outcome is devastating can lead to psychiatric damage in the form of anxiety, depression and even post traumatic stress disorder. It seems that the main reason for claims arising out of
cosmetic surgery is the fact that the surgery is substandard. It is to be noted that there are no specific qualifications in cosmetic surgery and that it is not a speciality on the GMC register. Certain clinicians appear to be motivated by commercial gain to the extent that they are prepared to operate outside of their speciality. The Royal College of Surgeons has recently suggested a register of certified surgeons to help the public to make an informed decision about the quality of their surgeon. Steven Cannon, Vice President of the college, was quoted on the BBC news website as saying that this would help to “stop the general practitioner doing the nose job… the dermatologist lifting someone’s breasts… all that cowboy behaviour”. Another key issue in cosmetic surgery is whether the patient’s informed consent has been properly obtained. I have experienced cases involving eye surgery where clients have been asked to sign detailed consent forms moments before surgery without having a chance to read them properly. Even though it might be argued that cosmetic surgery is surgery that no patient needs there should be no distinction between essential surgery and cosmetic surgery when considering a surgeon’s obligations to disclose information as to the risks/benefits of surgery. National minimal standards guidelines actually suggest that no patient should be admitted for a cosmetic procedure on the same day as the initial consultation and the guide to good medical practice in cosmetic surgery issued by the Independent Healthcare Advisory Services in May 2008 suggests that there should be a two week cooling off period to allow patients to reflect on what they are letting themselves in for. My experience is that this often does not happen. It is clear that cosmetic surgery is a growth area for negligence claims and the situation is likely to persist until the industry is properly policed. As Rajiv Grover, spokesman for the Baaps, recently reported to the BBC, “it is essential that the public know who to go to when seeking a qualified cosmetic surgeon, but also, to be assured that the quality of their outcome will meet accepted standards and particularly to meet their own expectations”.
clinical negligence
CLINICAL NEGLIGENCE LITIGATION COSTS REFORMS - WHAT DOES THIS MEAN FOR CLAIMANTS? by Philippa Luscombe, Penningtons Manches LLP The last two and half years have seen widespread reforms in the approach taken to costs in clinical negligence litigation. Prior to April 2013, the majority of claims were funded either by the Legal Aid Agency (LAA) in substantial cases where the claimant had limited means or Conditional Fee Agreements (CFAs) - also known as No Win No Fee. In both scenarios the approach was relatively simple - did the case have sufficient merit to warrant proceeding? If so, the claimant would be eligible for funding, in most cases with no potential costs liability for themselves. If they won their case, they retained their damages in full. From April 2013, the LAA restricted their funding to claims for children seriously injured at birth or very soon after. The rules on CFAs changed such that successful claimants became responsible for paying a success fee and an insurance premium out of their damages. In addition, the rules on recovery of costs inter partes were substantially changed meaning that recovery of costs would become much more restricted and controlled, particularly in the case of smaller value cases.
Negative impact on access to justice To date, this has already had an impact on claimants’ access to justice and the clinical negligence market. Some firms decided that the combination of no longer be able to recover substantial success fees from defendants in successful cases; the restriction on their recovery of base costs; and the high costs of running the case and need for disbursement funding in these cases; they could not continue to do clinical negligence work profitably and withdrew from the market. Other firms who had historically done only personal injury (PI) work felt that the changes to PI costs meant that clinical negligence cases would be more profitable. So they entered the market offering to do the work without charge to claimants but without having any real expertise in this type of work. Claimants with complicated cases of limited value in damages started to find that either firms would not take their case on at all. Cases were being disputed and claimants were being advised to drop them as it was not cost-effective to continue or that they were faced with relatively limited damages that were
severely depleted by deductions for costs. Those hit by the changes were some of those for whom claims were most important - the elderly and those who had lost parents or children due to suspected negligence.
Unexpected proposals to introduce fixed costs Without warning, there were further announcements this summer about proposals to introduce fixed costs for clinical negligence cases valued up to £250,000 - not just those valued up to £25,000 (as is the case in PI work). There are real concerns about these proposals and their impact on access to justice particularly as it is too early to assess the impact of the first sets of reforms. Ultimately, fixed costs may well encourage the bad behaviour of defendants that we currently see. For example, denying liability until late in the day and causing repeated delays in the hope that the escalating costs will force solicitors to discontinue the case. There are also concerns about a knock on effect on patient safety. If clinical negligence litigation is one of the ‘checks and balances’ to help maintain clinical standards, will making it not financially viable to bring smaller claims mean more disregard of standards of care because the threat of litigation reduces? Will it mean that patients who have been negligently injured or lost a loved one will not be able to pursue a claim at all because of damages being limited? Will those who have a valid claim end up being under-compensated because of deductions from their damages? Within the legal market, will it result in firms competing on cost and cutting corners to do these cases as cheaply as possible?
In turn, this could mean that the clients may not have a good job done or may be encouraged to settle early and at undervalue. Or that more firms leave the market and the clinical negligence field ends up being comprised of a small number of large teams who have the economies of scale to do the work well and profitably?
‘Double whammy’ of reforms will not help the individual Any way you look at it, the ‘double whammy’ of the reforms means that access to good quality legal representation and the chance to obtain answers and proper compensation is being restricted. The Government set the rules and is also the biggest compensator for clinical negligence claims. These reforms only work in their favour and not for the individual who, through someone’s substandard care, has been left injured or bereaved. As a clinical negligence solicitor, I consider myself lucky that I have been able to make a real difference to people in achieving not just compensation but answers and apologies for them at the same time as running a successful business. It will be a sad state of affairs if we get to the stage where we can only help people with the most serious injuries because we cannot break even on lower value cases and people with legitimate cases without potential for winning high value damages are left without answers and redress. http://www.penningtons.co.uk/people/ k-o/philippa-luscombe/
The Bill of Middlesex 23
professional practice Fourth & Fifth chapters in the series of extracts from the...
The Rise and Fall of Legal Aid
by Alured Darlington
“I truly hope this book is published - there was a time when everybody was entitled to be represented and put forward their defence, innocent until proved guilty. Without legal aid to give clients the representation everyone deserves, what will become of our society? I honestly dread to think. This book will be a reminder of the ‘good old days’ and an insight to young ones into the legal aid system as it was and how it should remain” Foreward by Jean Brathwaite, Legal Secretary
Chapter Four
Chapter Five
Other criminal work
Divorce work
My only other criminal work at the time usually involved shoplifting but in my case with a difference. Just down the road from my office lived a woman who was frequently arrested for this offence. From time to time I would see her in my office completely distraught when she would inform me that she had been arrested once again for this offence.
As an all-round lawyer at the time I became involved in Divorce work which resulted in attending the Court of His Honour Judge Duveen at Slough. The judge had very much his own style. It is said that when he met the Queen he told her that he was ‘her’ judge which was literally true as Windsor fell within the Slough court area. He would pack his court with as many undefended divorces as possible preceded by a number of injunction hearings.
But the facts were always the same. She did not deny that she had been caught shoplifting but had absolutely no recollection of doing so. Moreover the ‘thefts’ always related to items she neither wanted nor needed. She had a caring and considerate husband. I consulted a physiatrist Dr Gerald Silverman of Ealing Hospital who had other women patients who showed similar behaviour and had formed a theory about them. This was that these ladies all felt trapped in marriages from which they felt they could not escape. The shop from where they stole was an extension of the home which they attacked by shoplifting from it, unknowingly and subconsciously, as being their only means of release from their predicament. Of course if Dr Silverman was right, it meant that there was a defence available to the client of automatism. I will never know whether he was right or not because when the proposed defence was raised with the prosecution the matter was not pursued and settled in some other way. Dr Silverman’s theory was never tested in open court by an opposing prosecution physiatrist and the client joined Dr Silverman’s small band of patients. I would be interested to know of other lawyers who have come across this defence.
24 The Bill of Middlesex
It was no good seeking to argue a point of law. The invariable reply would be. ‘This is not the Court of Appeal. It is the Slough County Court’. But Judge Duveen was fair in accepting a point of law if was made clear to him. On one occasion I gave instructions to my new assistant solicitor Naomi Angell in her first divorce case. A short time before there had been a detailed description in the ‘New Law Journal’ as to how to obtain costs against a co-respondent in an uncontested divorce case - something that had never previously been attempted. There was a complicated structure of notices that had to be served together with proof that had been done. I instructed Naomi as to how to do this. At court Naomi went through with this procedure to the growing frustration and impatience of Judge Duveen but Naomi plodded on. Eventually the penny dropped and a decree nisi was ordered together with costs against the absent co-respondent. ‘I have never seen that done before’, Judge Duveen said to Naomi, in the presence of an audience of admiring young barristers, and she returned to the office glowing with pleasure after her very public success. This certainly must have done a lot for her
confidence. When I last heard from her a year ago she was Chair of the Law Society Family Law committee. I do not say that some divorce petitions should not be defended. There may be a limited number that should. But if people should wish to do so they should be prepared to pay the costs themselves. I did learn what a colossal amount of time contested divorce proceedings (as opposed to contested adoption, custody or contact proceedings) took and in that respect I do agree with Mr Grayling that the public should not have to pay for them. A client had been offered a legal aid certificate to defend a divorce subject to a legal aid contribution of under £10. As she failed to pay it I did so myself resulting in lengthy and totally time wasting contested divorce proceedings. I resolved never to repeat this action. On the other hand there were cases where divorces had to be persisted in despite opposition. One client from one of the refuges alleged assaults and abuse which were firmly denied by the respondent. However the respondent had been married three times before. A trip to the Divorce Registry by my articled clerk Liz Dowell revealed that all three previous wives had made similar allegations and the opposition to the divorce collapsed.
...other pages will be published in forthcoming the Bill of Middlesex or if you can’t wait, go online: http://issuu.com/benham/docs/ the-rise-and-fall-of-legal-aid
professional practice
NO EXCUSE by Peter Thompson, Christopher Papaloizou and Haben Beraki
Ignorance of the law is no excuse. But it can be a serious handicap when you encounter a legal problem with your employer, your landlord or your housing benefit, tax credits or credit card debt. If you cannot afford to consult a solicitor your way of life comes under threat and there is nothing you can do about it. If you are a migrant your right to be in the country may be at risk. Since the enactment of LASPO, (Legal Aid,Sentencing and Punishment of Offenders Act 2012) legal aid is not available to facilitate access to a practicing lawyer for help with any of these problems. So the solution, if there is one, has to be either to launch a website that offers free legal advice or to devise a face to face drop-in service in rent-free premises. The authors of this article have gone down the latter route. They are two non-practising barristers [one of them a legal author and the other an authorised mediator] and a law student from Middlesex University. They are members of the Wood Green Legal Advice and Mediation Centre, which is in session for three hours every Wednesday afternoon at the Salvation Army Christian Centre in Lymington Avenue, Wood Green. It has been operating for two years and has approximately 30 callers a session, 50% attending for the first time and 50% coming back for more. How did it come about? It was the inspiration of the Salvation Army and Susan Scott-Hunt, Associate Professor of Law at Middlesex University, that a legal advice centre was needed in Wood Green, that the Salvation Army’s premises were just right for it and that law students would enjoy and benefit from being involved in the solution of everyday legal problems. All that was needed was a couple of volunteer legal advisers and the two non-practising barristers were delighted to sign up. Now, two years on, we are almost overwhelmed by our success. Here are the views of the legal author, the authorised mediator, the law student and The Salvation Army. ‘I was a legal adviser at Toynbee Hall in the 60s (!) and have continued to provide pro bono legal advice at various institutions. I retired from the Government Legal Service in 1997 and top up my pension by editing the Civil Court Practice. As a sideline I have qualified as a level 1 immigration adviser. I really enjoy problem-solving and sometimes imagine myself as Sherlock Holmes, cracking impenetrable mysteries
[such as the Council Tax Support Scheme] and winning the devotion of damsels in distress. The gratitude of clients is indeed a great prize: kisses, hugs and (dare I say) bottles of wine; and even breaking bad news is appreciated as better than anxiety and fear. I have also to confess to being uplifted by the nobility of our clients, particularly Eastern European workers, who battle, against the odds, to see that their families are housed, educated, clothed and fed despite being let down so often by the institutions of government. They are a pleasure to help. PT” “I have always considered myself a lawyer first and foremost and when I was given the chance to join the law clinic at Wood Green I jumped at it because I am passionate about law practice. The work at the Wood Green centre is not sexy and it is not going to make the Times Law Reports but to the people who come to us for advice it is as important as a case in the Supreme Court. In the First Tier Tribunal we are regularly taking on the Secretary of State and winning! But a love of advocacy is not the only reason for getting involved. If you are happy doing 12 billable hours a day on Electronic Disclosure our work may not appeal, but if you want the law to work for those who can’t afford it and who would otherwise be left helpless then maybe the little light of hope shining in the back-streets of Wood Green might just be for you. CP” “When I was originally invited to become a student volunteer at the Wood Green legal clinic, my reactions were excitement, curiosity and a dash of nervousness. However, the nervousness was quickly dispelled once I started work. The versatile range of clientele and issues is astonishing, from a student's perspective. Each week we see about 30 people, all trying to deal with legal problems that have them feeling overwhelmed and at times out of their depth. As a student volunteer my first job is to welcome new callers and to find out who they are and what they have come about. After this I’ll usually sit in during the client’s
meeting with one of the barristers, making notes of the matters discussed, the advice given and the actions required. I may also be asked to do some quick research during the meeting. Middlesex University has kindly provided us with ipads (alongside some other helpful resources), which allow speedy access to statutes, forms, fees and other legal information. This complements the law I learn during lectures and has given me a unique insight into the power the law has over our day to day lives. It is an invaluable experience. HB” “The Salvation Army exists to serve suffering humanity. The recent cuts to legal aid mean that many people are unable to obtain legal advice. The most vulnerable people in society are likely to suffer directly. The Salvation Army wants to help these people access legal advice. One way The Salvation Army can get involved is by supporting local lawyers and advice clinics. The Salvation Army has supported a number of projects across England. In Wood Green, thanks to Peter, Chris and Middlesex University we provide the facilities, and access to our other services. SA” So that’s what we do. We are warmly appreciated but we are working to capacity. Anyone out there like to join us? Or start up on your own in the evening? Or at weekends? Or in retirement? Knowledge of the law need not hold you back and it certainly won’t do as an excuse! If you are a lawyer interested in contributing to the Wood Green Legal Advice and Mediation Clinic, contact in the first instance, Susan Scott Hunt, Associate Professor of Law, Middlesex University School of Law. s.scott-hunt@mdx.ac.uk. Susan is the current Membership Secretary of the Middlesex Law Society.
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free wills month
Free Wills Month is an opportunity for both solicitors and the public Ten national charities are working together to promote Free Wills Month during March. The promotion is an opportunity for people to have their Will written free of charge by a local solicitor and at the same time to leave a lasting legacy. For solicitors the promotion is a fantastic opportunity to acquire new clients at no cost. The promotion involves a lot of local advertising, which includes participating solicitors’ details, paid for by the organisers. Solicitors average 25 new clients, though some set a lower limit while others regard it as an excellent way to add to their client list and take as many appointments as they can manage. Many charities depend on gifts left in Wills for up to half of their funding. The Free Wills Month promotion aims to encourage those aged 55+ to have their Will written or updated (though in the case of couples making mirror Wills it is sufficient if one has reached 55). Free Wills Month is a great opportunity for people to consider leaving a gift to one or more of the charities. There is no
obligation to include a gift, though the great majority of people using the promotion choose to do so. The Free Wills Month charities work exclusively with solicitors who are in good standing with the Law Society and who are regulated by the SRA. The Free Wills Month charities in the March 2016 campaign are Age UK, Arthritis Research UK, The Blue Cross, British Heart Foundation, Guide Dogs, MIND, the RNLI, Royal British Legion, The Salvation Army and Stroke Association. The charities pay a set fee for “simple Wills” with the drafting solicitor determining what qualifies as a simple Will. If a Will is unduly complex the solicitor can ask the client to cover the cost between the simple element of the Will and the extra service required.
Recruitment of solicitors for Free Wills Month is scheduled to be completed by the end of January with the promotion running from Tuesday 1st March to Thursday 31st March inclusive. Appointments have to be made during March, though the actual appointments can take place any time afterwards to suit clients and solicitors. Solicitors interested in taking part in Free Wills Month should visit the campaign website at www.freewillsmonth.org.uk or call 0345 686 4309.
The importance of charitable legacies and how you can help Gifts in Wills form the foundation of the UK’s best-known and best-loved charities. Indeed, without income from legacies, many charities would cease to exist. In 2014 legacies contributed over £2.4 billion per annum to the sector§. Yet this sum is generated by only 7% of the UK public. While this demonstrates the fragility of legacy income, it also reveals its potential. If the rate of legacy giving rose to just 11% of the population, this would create an additional £1 billion for charities. Remember A Charity was created to realise this potential. The campaign works to do what no single charity is able to achieve on its own - to change the perceptions of the nation towards charitable legacies, so that over time, legacy giving becomes the norm for the many, rather than just the few. Remember A Charity was formed in 2000, and now has over 150 member charities, working together to achieve this aim. With 74% of the UK population supporting charities in their lifetime, most of your
26 The Bill of Middlesex
clients will have charitable causes that are close to their heart. However, the reality is that most people do not realize that they can use their Will to take care of not just their family, but of everything else that is important to them. The good news is that, research commissioned by Remember A Charity in 2008 revealed that 35% of people would consider including a gift to charity after providing for their family and friends in their Will.* Solicitors play a key role in helping clients understand all the options open to them. Of course, family and friends must come first. But by simply mentioning the option of supporting their favourite causes, more clients will consider supporting good
causes in their Wills. It is only with your help that we can give donors an opportunity to choose to do something amazing, and a small increase in the number of charitable gifts in Wills will make a huge difference to charities - and donors alike. To find out more about how you can get involved and support the campaign, whilst at the same time promoting your firm, please visit rememberacharity.org.uk/advisers §
Legacy Foresight 2015 * TNS Social 2008
free wills month
Did you know that just mentioning a charitable gift to your clients could double the amount raised for good causes? We’re Mind, the mental health charity. We believe no one should have to face a mental health problem alone. We’re here to make sure anyone with a mental health problem has somewhere to turn for advice and support. Mind is the leading mental health charity in England and Wales and gifts in wills are vital to fund our work. Last year 65,000 enquiries were answered by our helplines. Our local services helped over 375,000 people. However, we can only continue our work because of public support, events, donated goods sold in our shops, donations and gifts in wills. Our 2015 survey showed that 40% of our supporters would consider leaving a gift, but the number of people who actually make a gift is far lower. This isn’t just a challenge for Mind, because only 7% of wills end up including a gift to any charity. A recent study* found that people prompted to think about charitable giving were twice as likely to include a gift. Clients asked if they were passionate about any good causes were three times more likely to make a gift in their will. And the value of their gifts was double the normal amount. This is why I’m asking for your help.
You could help double the amount raised for charitable causes. mind.org.uk/wills
Douglas Flood, Mind Wills Team PS - Mind is part of the consortium of charities in Free Wills Month in London, this March. Clients using the offer have no obligation to make a gift to any charity in the consortium, or outside it. Although we of course hope that many will see this as a chance to help us. *Behavioural Insights Team, Cabinet Office 2013.
The Bill of Middlesex 27
cyber terrorism
No business can ignore cyber-terrorism as a threat by Robert Rutherford, CEO of QuoStar Solutions
Cyber-terrorism has been an underlying threat for a number of years. Initially and without a doubt state sponsored hacking was the first step in the rise, different countries probing each other for key information and weaknesses. As with traditional warfare/terrorism this has proliferated down to the everyday Joe, i.e. anyone can buy a gun, can make explosives, etc. The bigger threat and danger comes when these people (Joes) join forces and create a force, three or four people can do a lot of damage. Although there is no official UK legal definition of cyber terrorism currently, the majority of definitions describe it as a politically motivated attack using or against computer systems, information technology or data to cause widespread fear, loss of life or financial damage. As expected cyber-terrorism can be a big bang, perhaps a terrorist organisation bringing down the stock market, electrical grid or a large ISP. The damage can be just as large and as long-lasting as a traditional explosive based attack. Cyber-terrorism could also take the form of a small activist group with an agenda that causes them to pay a hacker-for-hire to steal sensitive information from a firm in relation to a case or bring a firm down due to the fact they are say defending an arms dealer, drug company that tests on animals, a lobby group, etc. Cyberattacks in general have been growing, with the latest research stating that between October 2014 and 2015 the number of targeted attacks have doubled. In the past you had people who would just hack for “fun”, but now their motives are much more focused, from blackmail and extortion to fulfilling a political agenda. While research suggests that government and financial institutions are bearing the brunt of these cyberattacks, the legal sector is also a prime target for cyber criminals due to the confidential, sensitive information they hold and their financial position. It doesn’t matter what size your law firm is, you are a target for a cybercriminal – that is the truth of it and to believe otherwise is simply burying your head in the sand. At a recent event I attended, 80% of the law firms there said they had been the recipient of some sort of targeted cyberattack or scam.
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As the legal sector takes steps to become further digitised, as we saw with the announcement of a £700m investment to digitise the courts in the Autumn Statement, the potential for cyberattacks also increases. The rise of the dark-web, free/cheap internet access, cheap IT and a developing world means that the capabilities and skills to wreak havoc are huge. No business can ignore cyberterrorism as a threat, let alone law firms whose whole business relies on information, data and access to technology. While law firms themselves may not be a direct target for “cyber warfare” it is no doubt they would be caught in the crossfire in a widespread online attack on UK infrastructure, power supplies or financial systems. What financial losses would you face if your firm was completely locked down for an hour? For a day? For a week? What about the long term reputational damage you would face if you were unable to complete any work for clients or, even worse, if you had put their data at risk? In a rapidly changing, globalising market reputation is everything. So, the above sounds pretty terrifying. It sounds like scare-mongering in fact. In reality I could whip up as much as a storm about the risk of fire, theft or flooding to your firm. The difference is that you understand these traditional threats to your firm, they have been called and controlled. You have assessed the risks and put in the applicable controls. In reality cyberterrorism is no greater threat, you simply need to look at your assets and see where cyber-terrorism is a threat and what controls you put in place. In short you just need to do a risk assessment. If you don't
have a risk assessment template then just download an example from here: www.quostar.com/risktemplate When going through your risk assessment do really think about the 'likelihood' and the 'impact' of each type of attack against your core assets, but make sure you think of assets beyond the items you put an asset tag onto, i.e. consider assets, such as: • Your email service • Your brand • A key employee • A department • Your internet connection • A key supplier The above is just a small selection of what should be deemed as 'assets'. It's hopefully quite obvious now that you need to be revisiting your business continuity plans and your disaster recovery plans. Actually as a firm you'll probably need to go beyond this and just build/run an IT system that is protected against threats, rather than focusing on recovering after the event. Again, focus on the risk assessment and take it from there understand your assets, the risks, and what your controls are. This isn't a huge undertaking and not going through it makes you pretty negligent, even if you aren't considering the cyber-terrorism risks. Email: robert.rutherford@quostar.com Web: www.quostar.com/legal-it
cyber terrorism
Cybercrime: How well is your client data protected? Information held by law firms is increasingly becoming a target for hackers. This is hardly surprising, given the sensitive information often entrusted to law firms by their clients. Hackers’ motives include corporate espionage, IP theft, access to market-sensitive data, blackmail and extortion. Law firms should already be alive to the risks but the issue needs to be further up the agenda, as the threats get ever more sophisticated and the stakes get higher. Law firms of all sizes are increasingly being targeted by cyber-attacks. This may take various forms, including “spear phishing” (a targeted and personalised e-mail scam containing a malicious payload) and exploitation of software flaws. Gone are the days when the most sophisticated abuse of a law firm’s IT systems was a scam e-mail from a fake Nigerian general. Third party service providers to corporate clients are often viewed as softer targets than the corporate targets themselves the major attack on US retailer Target in 2013 was achieved through a spear phishing e-mail to the retailer’s air conditioning contractor which in turn had access to part of Target’s systems - and law firms are another example of this indirect attack vector. For example, if a hacker knows that a boutique law firm is regularly subcontracted by a magic circle firm to conduct the IP due diligence on major M&A deals, then gaining access to that law firm’s systems (and in turn to a data room treasure trove of information on a
PLC) may prove easier, and more fruitful, than attacking the PLC directly. The ongoing consumerisation of business technology may exacerbate the security threat. As law firms embrace concepts such as “bring your own device” (BYOD), or at least allow lawyers to download personal apps onto work smartphones, the risk of malware residing on a device that accesses client data increases. Clients will increasingly demand more collaborative approaches from their lawyers, including the ability to remotely access, and contribute to, draft documents and view WIP and billing data, providing legitimate routes through the law firm’s perimeter fence for third parties whose access credentials could be compromised. The consequences for law firms of failing adequately to address the threat are significant and becoming more so. Firms face reputational damage, potential claims from corporate clients whose data is stolen and regulatory action by the SRA. Also, under the Data Protection Act, failure to apply appropriate security
Photo: Jon Bartley measures to protect personal data can result in a fine of up to £500,000 and damages claims from affected individuals. However, the Data Protection Act is soon to be replaced by a new EU Regulation. This will impose an obligation to notify the Information Commissioner and affected individuals of data breaches and increase the potential fines to between 2% and 5% of turnover (the cap has yet to be finalised at the time of writing). It will also extend liability to entities that merely process personal data on behalf of clients. All law firms should ensure an ongoing commitment to cyber security. This might include assessment of systems against the Government’s Cyber Essentials scheme, the Standard for Information Assurance for SMEs (IASME) and/or ISO 27001. Jon Bartley, commercial and technology partner, Penningtons Manches LLP. http://www.penningtons.co.uk/people/ a-e/jon-bartley/
THE MAJORITY OF DATA BREACHES ARE CAUSED BY HUMAN FACTORS Gartner report that over 50% of data breaches are caused by users and predict that within 5 years over 90% of such leaks will be user created so firms need to be acutely aware that the greatest weakness in their systems is the human factor. Our staff are busy billable people who have a limited mental budget available for managing security requirements or remembering multiple complex
passwords. IT need to work with other people to develop programmes of awareness and introduce new practices into the firm. If the majority of data breaches are caused by human factors, how many firms engage the HR Department in their Security Incident Reviews? Anecdotal evidence suggests very few firms do this and yet re-education and behavioural change should be at the forefront of enhancing data security. We cannot simply add technology and process to
enhance security. We must create and establish cultural change. HR or Training Departments are usually the custodians of behavioural change in many firms and engaging them early in the development of data security solutions is imperative. Do not regard data security as an IT issue. Make it a firm wide factor. Simon Ratcliffe - Consultant Advanced Computer Software Group For more information please contact: 0844 815 5575
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professional practice
WINE OF THE SEASON with Conal Gregory, Master of Wine
SBA The Solicitors’ Charity is currently recruiting Area Representative volunteers in London and is particularly keen to increase its coverage of West, South-West and East London. This is an opportunity for you to help fellow solicitors in times of need. Volunteers play an important role within SBA’s work by visiting people who are facing personal financial difficulties in their homes. They assist with the completion of our application form and verify the relevant underlying documentary evidence on our behalf. By volunteering as an Area Representative, you can do much to make positive changes to those suffering personal financial hardship, but there are also advantages to you. Here are some of them:
•
Sense of achievement You can witness lives improving directly from the benefits of your involvement
•
Add experience on your CV Studies carried out by TimeBank show 73% of employers hire people with a history of volunteering
•
Integrate into a wider community of solicitors Become better known
Each Area Representative has their own reasons for volunteering but, whatever their motivation, they have two things in common: they all understand the pressures of life in the law and they want to make a difference by helping those who turn to SBA in times of need.
Ideal candidates Good communication and people skills are essential. Volunteers need to be able to listen, empathise and avoid all appearance of being judgemental. An understanding and commitment to confidentially is fundamental. Though flexibility in being able to undertake a visit is often needed, Area Representatives always retain the option to decline a case if it is not compatible with other demands on their time. Volunteers typically cover three to four cases per year and each of these involves roughly four hours work. All reasonable travel expenses are reimbursed. Find out more about how SBA supports solicitors in times of crisis. To discuss opportunities for volunteering as an SBA Area Representative, please contact Sue or Dervilla via the details below. We'd be delighted to hear from you. E: bensec@sba.org.uk T: 020 8675 6440
30 The Bill of Middlesex
Cold days call for well-structured wines and Maranaga Dam’s trio of grapes from Australia’s Barossa valley is spot on. The predominant Viognier vine gives a peachy elegance, Roussanne the depth and finesse and Marsanne the richness. Made at Torbreck winery, named after a Scottish forest, this dry white is delicious with turbot and Asian cuisine and the 2014 can be kept for two to three years. £15 (Marks & Spencer). The vineyards of Marcillac in Aveyron, south-west France had almost disappeared through vine pest, war and rural depopulation. The Teulier family of Domaine du Cros has continued in the iron-rich, hilly country to make a deep rich robed red from the Servadou vine, known locally as Mansois. The wild fruit berry character comes with a hint of spice. The 2014 is perfect with grilled meats. £7.95 (IEC Wine Society). Sponsored by NFU Mutual Bespoke, high-value home insurance tailored to protect everything you value, including art, antiques, fine wine and more.
Visit www.nfumutual.co.uk/bespoke for further information.
professional practice
The Supreme Court on Break Clauses and Implied Terms by Kester Lees, Barrister, Falcon Chambers
Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited [2015] UKSC 72 is set to be the leading authority on (i) the law of implied terms, (ii) the operation of break clauses, and (iii) apportionment of rent payable in advance, for some time to come. The Facts Four commercial leases had been granted for a fixed term expiring on 2 February 2018. The rent was payable in advance on the usual quarter days. The leases contained identical break clauses which were exercisable on 24 January 2012, subject to two conditions only: (i) the payment of a break premium (equivalent to one year’s rent) and the tenant being up to date on the rent as at the break date. The tenant paid the break premium after the December quarter date and had, therefore, paid the December quarter in full. After the leases were successfully terminated the tenant sough to recover the ‘overpayment’ of the December quarter rent, for the period falling after the break date, by virtue of an implied term. Therefore, the key issue before the Supreme Court was whether the tenant could recover from the landlords the apportioned rent in respect of the period after the break date - ie from 24 January to 24 March 2012. The court was also asked to overrule the longstanding decision of Ellis v Rowbotham [1900] 1 QB 740, in which the Court of Appeal held that the Apportionment Act 1870 did not apply to rent payable in advance.
The Decision on Implied Terms The Supreme Court rejected the dilution of the strict test of necessity for an implied term. Lord Hoffman’s vcontrary view, expressed in the Priviy Council in Attorney General of Belize and others v Belize Telecom Ltd [2009] 1 W.L.R. 1988, was relegated to the status of an ‘inspired discussion rather than authoritative guidance on the law of implied terms’. The test remains that of strict necessity for business efficacy. In summary, the Supreme Court made the following observations on the law of the implication of terms: a. The process of implication is distinct from the process of construction. It is only after the question of construction has been considered that the question of implication can arise.
b. There has been no dilution of the requirements which have to be satisfied before a term will be implied; namely, that it be strictly necessary for business efficacy. c. It is not enough that the parties would have agreed to it had it been suggested to them. That is a necessary but insufficient ground for implying a term. d. The test is not one of absolute necessity but whether, without the term, the contract would lack commercial or practical coherence. e. The Supreme Court found that the settled law on apportionment upon forfeiture as at the date of the grant was equally applicable to apportionment upon the exercise of a break clause. That settled law was taken to have informed the reasonable man’s view of the contract. f. A term will not be implied where it ‘lies uneasily’ with the express terms in the contract (approving Bingham LJ in the earlier case The APJ Priti [1987] 2 Lloyd’s Rep 37). Consequently, in M&S, the Supreme Court rejected the implied term as not being sufficiently necessary. In particular, the court had regard to the fact that both parties were large commercial entities legally represented when drafting the instruments and that the leases did provide for repayment by the landlord in other circumstances (had the break not been exercised).
The Decision on Apportionment of Rent On the issue of apportionment of rent payable in advance, the Supreme Court confirmed the status quo:
Photo: Kester Lees c. Had the Supreme Court considered that the decision in Ellis was definitely incorrect then it would have been appropriate to overrule the decision despite its longevity. However, if the Supreme Court had been merely doubtful of the decision it would be appropriate to uphold the earlier decision given its longevity.
Conclusion: lessons to be learned… No doubt tenants’ conveyancers will continue to seek to include express apportionment provisions and/or clauses for the repayment of any overpaid rent upon the exercise of a break. Such a precautious approach is clearly justified following this decision. Without such a clear and unambiguous term there can be no such apportionment of rent payable in advance. There are other lessons which may have a wider impact. In particular, the implication of terms will be far harder to rely on in future; the Supreme Court’s shift in emphasis is impossible to mistake. A final point to note; Lord Neuberger PSC suggested that had the premium been paid before the quarter date the rent could be apportioned. That may give some tenants hope prospectively. However, those comments must be treated with some caution as (i) they were strictly obiter, (ii) would only work where there were no other break conditions (such as vacant possession), and (iii) it would be a brave tenant who would risk the ongoing liability of the lease continuing to put this argument to the test. Only time will tell…
a. The decision in Ellis was correct. Rent payable in advance was not apportionable under The Apportionment Act 1870. b. Therefore, rent payable in advance could only ever be apportionable as a result of a clear and unambiguous clause in the contract.
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legacies
Canine Care Card Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved fourlegged friend without an owner. Thankfully, Dogs Trust, the UK’s largest dog welfare charity, offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, it also helps to ease the minds of friends and family during what is already a distressing time. Over the past 12 months, Dogs Trust has taken in a whole host of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes. Two of these such dogs were devoted duo, nine-year-olds Rosie and Beth who arrived at Dogs Trust Manchester when their owner sadly passed away. When they arrived at Dogs Trust Manchester, Irish Setter, Rosie, and Shih-Tzu Cross, Beth were missing their home comforts and hoping to find love again with a new owner. Thankfully, Dogs Trust Manchester was able to provide the adorable duo with a home away from home while they awaited their furrytale ending. Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving home. After being cared for by Dogs Trust Manchester, Rosie and Beth were soon rehomed and have since begun settling in to life with their new family.
32 The Bill of Middlesex
Adrian Burder, Dogs Trust CEO says, “Thanks to Dogs Trust’s Canine Card Card scheme, dogs in need of a new home are given a lifeline meaning that Rosie, Beth and many dogs like them are able to get a second chance at happiness and bring joy to a new family. If you decide to become a Canine Care Card holder, we will issue you with a wallet-sized card. It acts in a similar way to an organ donor card and notifies people of your wishes for your dogs, should anything happen to you. Dogs Trust also strongly recommends that you mention the care of your dog in your Will. That way, there can be no confusion about your wishes.”
news
YES, A BEST - OF - BREED DOCUMENT MANAGEMENT SOLUTIONS IS AFFORDABLE FOR GROWING LAW FIRMS! by Jon Wainwright, Sales Director, Ascertus Limited
Time and again I hear lawyers at growing law firms wax lyrical about the piles of paper that they have to deal with in their offices, making it near impossible to find information in a timely manner. Often, it’s akin to finding a needle in a haystack. And it’s especially irksome to fee-earners who come from larger law practices and so are accustomed to access to productivity enhancing tools such as document management solutions.
The frustration is compounded in the current digital and mobile business environment, where firms send and receive information on matters and transactions in all manner of formats - email, electronic files, paper documents, SMSs and voice messages. Consequently, due to the volume of inbound and outbound information as well as the lack of standardisation of formats and key words, document and email management is presenting a huge challenge for the smaller law firms. Manually documenting mattercritical information in an easily accessible and user friendly manner and in compliance with continuously evolving regulation is extremely difficult, time-intensive and costly. Despite the obvious benefits of document management, the myth that best-of-breed systems are only suitable for large firms rampantly persists in the legal sector. The reality couldn’t be farther from the truth. In fact, growing firms have the most to gain from the efficiency and productivity benefits such systems deliver.
Dispelling the myths Perhaps the biggest misconception among the smaller firms is that best-of-breed document management systems are unaffordable. To the contrary, today there are a plethora of technology and commercial options available to firms. Foremost, firms don’t need to purchase these applications directly from software vendors. A better approach is to acquire tailored systems from solutions providers who - due to their close association with software vendors - have developed propositions especially for smaller law firms that substantially reduce the cost of ownership and the need to employ internal IT resources. In doing so, they remove the typical obstacles that prevent law firms from deploying best-of-breed document management systems.
For instance, gone are the days when the perpetual licensing model was the only commercial arrangement available for software purchase. Today, there are a variety of flexible licensing options including annual, subscription, usage-based and software as a service (SaaS). In fact, a lawyer can have access to document management system, iManage Work, for less than the cost of an individual's monthly mobile phone rental! From a technology standpoint, in addition to the traditional on-premises system, firms have available to them the privately hosted model. This allows organisations to leverage all the benefits of cloud technology, but securely. In this model, firms install their own instance of software, run on versions that best fit their needs and have complete control over their data and documents. No databases are shared or accessible by any third parties or external organisations. Furthermore, a privately hosted document solution greatly improves accessibility and collaboration in an increasingly mobile environment. The technology is advanced and best-of-breed systems allow secure, mattercentric document management capability on the iOS, Android and Blackberry platforms. This method of application deployment also greatly reduces risk, offers in-built disaster recovery and significantly reduces the burden on IT, administration and support.
Approach to adopting document management solutions Like for any application, firms looking to adopt a document management solution, must first devise a strategy. There are some fundamentals to consider. Determining what content exists and where it resides - email inboxes, shared folders, physical files - is crucial. Firms should think about creating a seamless business environment in the firm by integrating already deployed technologies with the new document management system.
Also, it’s wise to institute the internal document management policies right up front with reference to how documents should be stored, for how long, who can access them, what folder structures are preferred and such. Due to the complexity of both the technology environment and transactions, a matter-centric approach to document management is the simplest and most intuitive. This method is also conducive to collaboration and scaling the solution as the business grows. Mobile working is now pervasive, so it’s worth assessing the type of devices that are likely to be used and on which platforms (e.g. Android, iOS) so that these requirements can be accommodated as the solution is configured. This is critical to ensuring that the document management solution is able to switch seamlessly between ‘in office’ and ‘on the road’ usage. Thirsk Winton, a North-East London law firm is a good example of a growing firm that has cost-effectively deployed a best-of-breed document management system. A firm that was genuinely ‘drowning in paper’, today has a document management function that is ‘routine’. The firm has integrated its financial management software and Microsoft Office with its document management system too, making the latter the primary storehouse and knowledge centre for all client and matterrelated activity. Let alone anything else, simply undertaking the cost of property to house paper, which is then inaccessible to the business is sheer imprudence and a waste of financial resources. Technology systems exist that allow firms to devise tailored and innovative paper flow processes - from creation and maintenance through to destruction and archiving of electronic matter files. Aside from business efficiency, a well-structured document management system aids good client service too. www.ascertus.com
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book reviews
THE LAW OF MISSTATEMENTS 50 Years on from Hedley Byrne and Heller Edited by Kit Barker, Ross Grantham and
Warren Swain HART PUBLISHING ISBN: 978 1 84946 863 3 (hardback) www.hartpub.com.uk
COMPENSATION CULTURE? READ THIS CRITICAL EXAMINATION OF A WELL-KNOWN AND PIVOTAL CASE An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Having noted the subtitle of this book, you know, if you’re a lawyer what it’s about. As co-author Kit Barker explains, ‘there are few twentieth century tort cases as well known, or as often cited in commonwealth jurisdictions as Hedley Byrne & Co Ltd v Heller & Partners Ltd.’ adding that ‘it has been construed as a case about liability for careless words.’ Apart from Donoghue and Stevenson there are few tort cases in the twentieth century that are as well known. A House of Lords landmark decision, the case has certainly excited comment and controversy, no less so now, in its fiftieth anniversary year.
Recently launched by Hart Publishing, this book both commemorates and celebrates that decision as well as offering up a rich variety of commentary on it from no less than fourteen contributors mainly from universities in Australia and New Zealand as well as the United Kingdom, but representing five of the most important jurisdictions in which the case applies, namely the United Kingdom, the United States, New Zealand, Canada and Australia. The law of misstatements in each of the five jurisdictions is examined in depth and from various perspectives with the focus on its meaning, its influence and its basic concepts; for example, ‘voluntary assumptions of responsibility’ and ‘reliance.’ To say that Hedley Byrne has generated massive repercussions as well as comment over the past fifty years is the understatement of this century as well as the last. For example, having elevated the importance of the concept of ‘duty of care’ (no bad thing, actually) it has variously been identified rightly or wrongly, as the root cause of the compensation culture. As this fifty year old case continues to influence and impact upon modern law, private law in particular, this book provides a cross-section of contemporary viewpoints
and therefore a fulcrum for contemporary discussion on the incredibly wide variety of issues emanating from liabilities for misstatement. Researchers will of course, appreciate the wealth of references contained in the extensive footnoting and also in the twentyfive of so pages of tables of cases and of legislation from the relevant jurisdictions. Also note that the Appendix contains the transcript of the judgment of McNair J. dated 20th December 1960, which makes this book particularly handy for private lawyers. If you need reminding of the details of the case, this section ideally, should be read first. The publication date is cited as at January 2015.
BILLS OF LADING Second Edition by Richard Aikens, Richard Lord and Michael Bools
LLOYDS SHIPPING LAW LIBRARY Informa Law from Routledge ISBN:
978 0 41574 581 9 (hardback) 978 1 31575 087 3 (ebook)
www.informa.com
ARE BILLS OF LADING LIKE ELEPHANTS? THIS ESTABLISHED TITLE FROM LLOYD’S SHIPPING LIBRARY EXPLAINS ALL - NOW IN A NEW SECOND EDITION An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Why is a bill of lading like an elephant? If you are a shipping lawyer, you should read this book and find out. Far from the straightforward and routine documents they’re assumed to be, bills of lading can be fraught with legal complications with many a legal pitfall in store for the legally complacent or unaware. This new edition of ‘Bills of Lading’ - the first since the original edition came out in 2006 will be welcomed no doubt, by fleets of shipping lawyers. Accessible and easy to read, the book presents a minutely analytical and exhaustive study of just about every conceivable aspect pertaining to bills of lading, steering the reader though all the characteristic and distinctive features of bills of lading as well as their inherent and potential contradictions.
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But what exactly is a bill of lading? In chapter two, the three expert authors concede that it is something like an elephant: ‘generally easier to recognize than define.’ One may take this to mean that you know one when you see one, but it is hellishly difficult to describe. Nevertheless, this chapter in particular tackles the task of arriving at a satisfactory definition of bills of lading, classifying these documents into different ‘species’ of bill. The challenge here is to determine whether a document is really a bill of lading or not. Certain distinctions are legally significant, say the authors, ‘as they affect the legal rights and legal obligations attached to the bill.’ Published by Informa from Routledge, this edition of over 600 pages in length, is one of the latest titles to join Lloyd’s Shipping Law Library. It reflects any number of developments that have emerged in this area of law over the last nine, almost ten years. The authors point out, however, that in this interval, there has been ‘limited drama on the substantive front,’ with the greatest changes occurring not on substantive issues, but in ancillary and procedural ones, which the authors have dealt with mainly in a rewritten Chapter Fourteen. The sections on such issues as seaworthiness and the question of frustration of contract of carriage have been expanded - and in response to the movement and direction of global trade reference is made to significant decisions from Singapore, Hong Kong, Australia, New Zealand and Canada.
The book also contains brief but apposite comments on the influence of new technologies, including web portals for booking cargo. The authors are of the opinion that ‘theoretically, difficult questions may arise as to which click of whose mouse results in a binding contract, but such issues are unlikely to be of much practical significance.’ The authors do comment in the preface, however, that ‘E-commerce does not resolve the legal issues associated with bills of lading, but it may resolve many of the practical and factual ones and might be thought to augur an overall reduction in the level of disputes.’ International lawyers, especially those advising on marine law, or indeed any professional concerned with minimizing the ‘elephantine’ potential for risk and error inherent in bills of lading should make sure they buy this book now. It is also available as an E-book. The publication date is cited as at 2016.