Autumn 2015
The BILL of
Middlesex Official journal of the Middlesex Law Society
Celebrating Magna Carta (cover story)
Inside this issue: › Local News › Professional Issues › Book Reviews
View our new website: www.thameswater-propertysearches.co.uk/BOM
introduction
PUBLISHER Benham Publishing Limited 3tc House, 16 Crosby Road North, Crosby, Liverpool L22 0NY Tel: 0151 236 4141 Facsimile: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com
Contents 5 20
ADVERTISING AND FEATURES EDITOR Anna Woodhams
DESIGN AND PRODUCTION MANAGER Neil Lloyd
ACCOUNTS DIRECTOR Joanne Casey
MEDIA No. 1402
EDITOR Sundeep Bhatia
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PUBLISHED August 2015 - © 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: Courtesy of Kevin Poolman ©
Copy Deadlines Winter Spring Summer Autumn
23rd October 2015 23rd January 2016 1st May 2016 1st August 2016
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
22 SPOTLIGHT ON...
7
LOCAL NEWS
24 NEWS
13 SOCIAL EVENTS
28 CONVEYANCING
14 PROFESSIONAL ISSUES
30 CYBER SECURITY
17 EDUCATION FOCUS
32 FILM AND THE LAW
18 MANAGEMENT
33 BOOK REVIEWS 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 2015/2016
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
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
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
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.
(07973 622312) e-mail: creativewit@tiscali.co.uk
Hardeep Dhillon of Desor & Co, 768 Uxbridge Road, Hayes, UB4 0RU
Honorary Secretary
(020 8569 0708) (DX 44657 Hayes 1 Middlesex)
MAURICE GUYER
e-mail: hardeep@desorandco.co.uk
SOCIAL PROGRAMME 2015-16 Annual Dinner Dance on 25 September 2015 Past Presidents Dinner - TBA
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
COMMITTEE MEETINGS 2015 21 September 19 October 16 November
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
2016 18 January 15 February
(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)
AGM Wednesday 15 March 2016
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
PARLIAMENTARY LIAISON Ariya Sriharan of Sriharans 223 The Broadway, Southall UB1 1ND
Michael Garson
(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 On the 17th of June I drove down to Southampton and caught the ferry across to Cowes on the Isle of Wight. From there it was a short drive to Yarmouth where the bi - annual Southern Association of Local Law Societies, (SAAL), meeting took place at the Yarmouth yacht club.
P
Our Annual dinner this year is taking place at Ognisko Restaurant, at the Polish Club on Exhibition Road, South Kensington, on account of its central location. I discovered that our “patch” covers a wide area from Spelthorne right round to Enfield. The venue is easily accessible by train and, to assist those who may have to travel from afar and don’t have the time to change into black tie, lounge suits are the order of the day. The costs are reasonable at £60.00 per head which includes a three course dinner with wine and vodka shots. You will then be able to dance the evening away to the sounds of our DJ.
On 18th June I attended the Surrey Law Society’s Magna Carta 800th Anniversary Celebrations. This year also happens to be the 200th anniversary of Waterloo. It was a very impressive event and was held
at the Runnymede Hotel. There were a number of points of interest, relating to Magna Carta. There was also a display of Regency dancing which took you back in time to the Duchess of Richmond’s Ball on the eve of the Battle of Waterloo. At the end of June I attended the National Local Law Societies Conference in Monmouthshire which was held at the Celtic Manor Resort, home of the 2010 Ryder Cup. Whilst I did not get a chance to play golf it was interesting to see how other local law societies have coped with the era of austerity. There was an inspirational speech, at the end of the conference, by a motorcyclist who attended his friend’s wedding after his friend had experienced a motorcycle accident which had caused him debilitating injuries. The speaker described how, in a twist of fate, he was also involved in an accident which left him wheelchair bound. Nevertheless he opened and now heads a personal injury law firm which specialises in representing those involved in motorcycle accidents. It was a truly inspirational story of his will to overcome adversity.
3 NEW LAW SOCIETY COUNCIL MEMBERS
Middlesex Law Society has 3 Law Society Council Members. Michael Garson represents Central and South Middlesex. Michael Singleton represents North Middlesex. Sundeep Bhatia, Committee Member of the Middlesex Law Society, represents Minority Lawyers. Every Six weeks between late September and early July, the Law Society Council meets at the Chancery Lane headquarters of the Law Society.
residents from member societies were in attendance and we discussed a varied agenda which included an update on the review of Criminal Legal Aid and an update on the SRA’s regulation of legal services which included proposed changes to professional indemnity insurance. It was evident that a lot of criminal practitioners would be at risk following the tendering process. The SRA has decided, at present, only to proceed with requiring firms to ensure that they have an adequate value of insurance in place. Further changes are, however, being considered. The Law Society had been lobbying the SRA about the SRA’s proposed changes to regulation of Consumer Credit. VEYO, (the conveyancing portal), underwent a soft launch last autumn with the project formally launching later this year.
I look forward to meeting you there. Kind Regards,
GURMEET KHARAUD President, Middlesex Law Society e-mail: gk@fortsolicitors.com
The Bill of Middlesex 5
local news
Welcome to the latest issue of “The Bill of Middlesex.” As I write this the summer holidays are coming to an end and autumn awaits. I hope that you all had a great summer and that you managed to get away. Both the National Law Society and The Middlesex Law Society tend to go into semi hibernation over the summer period. However, this summer, no one could afford to take their foot completely off the pedal. Just as Parliament was going into recess the government announced a consultation to further increases in Court fees. The SRA has published a consultation paper on the future of indemnity insurance.
I believe that the tender proposals are disastrous and will result in many miscarriages of Justice as a result of reductions in standards. The national Law Society will soon announce its strategy for 2020. Do not forget that the Middlesex Law Society dinner is taking place on the 25th September at The Polish Club, 55 Prince’s Gate, Exhibition Road, London SW7 2PG. Best Wishes
The autumn promises to be challenging.
SUNDEEP BHATIA
The results of the criminal legal aid tender will be announced and many firms face the prospect of ceasing to trade or withdrawing from the market because they could not or did not wish to tender.
Beaumonde Law Practice Law Society Council Member for Minority Lawyers Middlesex Law Society committee member
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: £50.00 per annum (more than 3 years admission) Full Individual Membership: £30.00 per annum (less than 3 years admission) Partners/Solicitors 2-5 £125 per annum 6-10 £250 per annum more than 10 £500 per annum Firm Membership: £200 per annum Academic Law Departments: £15.00 per annum (Trainee Solicitors, ILEX members, Paralegals) Associate Membership: £5 per annum (Young Members Group) Students: 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 7
local news
800 YEARS OF MAGNA CARTA Magna Carta is the foundation stone supporting the freedoms enjoyed today by hundreds of millions of people across the globe. Enshrining the Rule of Law in English society Magna Carta limited the power of authoritarian rule and paved the way for trial by jury.
O
n 18th June our esteemed President, Gurmeet Khuraud, attended a Celebratory Gala Dinner, at the Runnymede Hotel, to celebrate 800 years of the sealing of Magna Carta by King John. The event was organised by the Surrey Law Society. Runnymede, as the historians amongst you will be aware, is where the historic sealing took place. The Guest speaker at the event was Sir Geoffrey Bindman who spoke about the validity of celebrating Magna Carta and its impact on communities around the world. 8 The Bill of Middlesex
Sir Geoffrey founded Bindmans Solicitors in 1974 and, throughout his long and distinguished legal career, has specialised in civil liberty and Human Rights issues. Sir Geoffrey was Knighted in January 2007 for services to human rights and was appointed honorary Queens Counsel in March 2011. There was also a demonstration of Regency dancing and the event also celebrated the 200th anniversary of the Battle of Waterloo. It is right and proper that we, as a Legal profession, and as a local Law Society, celebrate Magna Carta which is one of the
cornerstones of our legal system and is also one of the reasons why our profession is held in high regard around the world. All photographs courtesy of Kevin Poolman.
local news
The Bill of Middlesex 9
local news
Council Member report by Michael Garson The Council meeting, on 8 and 9 July, was followed by the AGM. At its conclusion Jonathan Smithers, (conveyancing solicitor in Kent ), took office as President, until July 2016. Robert Bourns, (former senior partner of TLT), became Vice President, and Joe Egan, (crime practitioner in Bolton), joined the office holder team as Deputy Vice President. The AGM adopted the financial report and accounts which can be found at http://www.lawsociety.org.uk/about-us/annual-report The chief executive, Catherine Dixon, reported ongoing progress to develop a fresh strategic plan intended to set the Society's direction for the next three years. It seeks to explain the purpose, role and aims of our professional body in an engaging way that has members’ interests at the heart of all activity. The strategy has a diverse range of audiences within the profession practitioners in private, international and corporate practice as well as in house and government solicitors. Externally the plan will be available to the general public, staff within the Law Society and important senior stakeholders. The content of the plan will emphasise the role of solicitors in protecting justice for everyone and in raising awareness of the benefits of using a solicitor at home and abroad. It will be used to support, promote and represent the profession. The plan will fulfil the role of influencing government and key stakeholders to support the justice system we operate for the benefit of all. It will include sections on the contribution of the legal profession to the UK economy, and internationally, as well as on future changes within the profession and the external environment which are generating challenges to members. It will also be important for the work to draw on the extensive range of consultation and research which is being carried out. Council agreed the Net Funding Requirement (NFR - the amount to be raised from the practising fees) for the Law Society Group, for 2016. This needs to be done in order to set the level of the practice certificate fees for next year, which will remain unchanged for individuals at £320. The total to be raised from entity fees from firms also remains unchanged, although levels paid by individual firms may change depending upon changes in turnover. Compensation fund contributions will also remain unchanged at £548 for firms and £32 for individuals.
10 The Bill of Middlesex
A consultation with the profession was carried out and gave a breakdown of the use of monies raised - see extract below.
Compensation fund contributions will also remain unchanged at £548 for firms and £32 for individuals.
Our financial plans for 2015-16
Responses indicated a high level of dissatisfaction with the allocation of the fees and this will be the subject of work. Some criticism can be met by better explanation of expenditures and the reason for them. As regards value I hope to be able to shed more light on this as I have been elected by Council to the role of Treasurer from September and this is an area where we must look to make improvements.
What we expect to spend The cost of shared services provided by Corporate Solutions is allocated to TLS and the SRA. Corporate Solutions costs are not shown separately in the following charts and the TLS and SRA budgets are shown with their allocation of shared service costs included. We expect to spend a total £140.719m split across each part of the Group. Figure 1: Expenditure distribution in 2015-16 About 75 per cent of our group expenditure is met from the annual practicing fees. The rest of our Group expenditure is met from other sources. The SRA has income from other regulatory fees, from costs awarded and from the Solicitors Compensation Fund. TLS has commercial income. Some costs are met from Group reserves. Altogether, these other sources of income are planned to meet some 25 per cent of the Group’s funding requirements in 2015-16. The balance will be met from the annual practising fees. Figure 1:
• Council received reports from the outgoing President on key activities and engagements attended in the last six months and the annual Presidents' and Secretaries' conference in May. That appears to have been successful in dealing with a number of live issues for local law societies;
Other reports received by Council included: • The first formal meeting between the President, Vice President, Chief Executive, and the newly appointed Lord Chancellor, Michael Gove, to discuss key themes in the Society’s Manifesto for Justice, including access to justice,
Levies £16.454m TLS £52.747m SRA £71.518m
local news
Pictured: Michael Garson
the importance of the legal sector to the UK economy, and concerns that court fee increases and legal aid cuts were damaging access to justice as well as the reputation of our legal jurisdiction abroad; • Ongoing representations to the Ministry of Justice as to the adverse effect of the civil and criminal legal aid changes, and support to our members in responding to them; • The focus on improvements needed to the Law Society's Customer Relationship Management (CRM) system in order to improve engagement with members in a targeted and relevant way. A number of initiatives appear to have failed. As chair of Management Board I will be taking an active interest in projects such as this to evaluate the value they produce. The Regulatory Affairs Board is taking forward initiatives from the Professional Indemnity Insurance stakeholder seminar bringing together insurers and the SRA. But this work is now superseded by the need to respond by 16 September to the latest SRA Consultation on ‘financial protection for when things go wrong’. Paul Philip explains “PII and compensation arrangements play an important part in our regulatory model. We need to strike the right balance between freeing up law firms to grow and providing appropriate consumer protection. This consultation is aimed at moving us towards a more appropriate regulatory model in this area." Most established firms are unlikely to be able to reduce their level of cover with any degree of confidence - unless they can be sure that there is no exposure to claims for work done in the past. Bearing in mind the nature and volume of claims so far as we can tell there will not be much room for reduction in premium. Even if lower amounts of cover are purchased, because most claims fall within the lowest layer of cover and incur legal fees, the reduction is premium will be small. If the aggregate cover for multiple claims is reduced
this could see falls in premium but also greater exposure for the insured. If the system is dismantled, as the SRA seem to want ,then the profession stands to lose the buying power of the minimum terms contract and that high standard will be consigned to history.
end of the scale, where firms hold smaller amounts of client money and are relatively lowrisk, relaxing the current arrangement is sensible. This second phase of changes is part of our drive to reduce bureaucracy and be proportionate."
Unfortunately not many of the objections raised in last year’s debate appear to have been given further thought and do not appear to have resulted in fresh research unless such research has yet to be made available. There is still a lack of understanding as to the ‘claims made’ basis on which policies are written; it is cover today that needs to be adequate to cover claims against work done in the past. Also brushed aside, as being of lesser importance, are issues around the potential liability of employees and former partners, and the potential exposure of unsophisticated or vulnerable consumers.
There is a worry that these changes will leave SRA short of a basic form of intelligence that it has always required. Even if the reports were not frequently used they certainly gave confidence within our market that all members submitted to a degree of scrutiny for compliance with basic rules. The rules have been there to prevent things going wrong and simply hoping that bad things do not happen may prove naive.
This is just one of a number of recent SRA decisions that move in a similar direction. The new separate business rules from November will give rise to consumer confusion over the role of solicitors. The distinguishing features of a solicitor’s expertise are likely to come under increasing pressure as accountants engage in more probate work and barristers and legal executives open firms competing in other areas of traditional legal practice.
Our identity as a solicitors’ profession is in need of redefinition as it can no longer rest upon the platform provided by the strong regulatory requirements of the past. The new training requirements are not yet finalised but clearly point to a less homogenous group of newly qualified solicitors entering the ranks of the regulated profession. That will be a strength given the diverse background and experience that will be represented but a common set of values and behavioural norms remains essential if we are to be able to conduct our business efficiently. Part of the Council’s plan under discussion will need to address these issues and I look forward to reporting when these matter come to Council for decision in the autumn.
There is real cause for concern when the ‘markers’ for our unique identity are being steadily unpicked. Another example is the decision to extend the relaxation on the filing of Accountant Reports so that where client balances aggregate to Established since 1964, we have achieved 50 years of providing less than £250,000 in a accountancy excellence to businesses in and around London year there will be no and further afield in the United Kingdom. requirement for any report at all. As ever the Our strength comes from our determination, our commitment rationale is to make to our clients and ability to face challenges of the economic things easier and climate without compromising the quality of our services, for encourage innovation. which we are justifiably very proud. Where reports are required the certainty of Our firm is structured into departments for Taxation, Audit, the previous rules gives Accountancy, Book-keeping and Payroll, IT Systems and way to a subjective test Company Secretarial Service. - "These changes give accountants more Our specialisation includes Reports on scope to use their Solicitors Accounts Rules. expertise and advise firms on potential risks. Our office on Ritz Parade, London W5 3RA, next to “Premier Some firms may find Inn London” is situated adjacent to the Hanger Lane and Park that obtaining reports is Royal Underground Tube Stations and is well placed for London very expensive because and its surrounding environs. of their size and structure, so it makes Call: Arvind Joshi FCA, CTA, DChA sense to use Tel: 020 8932 1932 accountants' expert Fax: 020 8932 0122 views in this way to arvind@levyandpartners.com ensure value for www.levyandpartners.com money”. "At the other
The Bill of Middlesex 11
local news
SRA consultation on its regulatory reform programme (closed consultation response) The SRA has consulted on a range of proposals aimed at reducing unnecessary burdens and costs for regulated firms, and to ensure proportionate and targeted regulation. The consultation includes numerous topics which the SRA considers to be non-controversial and of less significance, and therefore requiring less in-depth consideration. The Law Society’s response to the reform proposals is available, and an edited summary of the key points is included below. Proposal
The following is abridged text from the Law Society’s more detailed response to each area under consideration
Simplifying compliance officer approval for small firms (1-4 managers)
The proposal to introduce deemed approval for the COLP/COFA roles for sole practitioners and 1-4 manager firms is supported and should be extended to all non-ABS firms.
Simplify candidate declaration and notification processes
This is supported in relation to 'traditional' solicitors firms. The SRA should defer proposals to reduce regulation on ABS firms to any material degree until there is a greater level of experience. Additional risks which may at present be unforeseen may only emerge over time.
Remove the requirement for firms to carry out reserved legal activities
It would be unwise to look at authorisation rules in isolation. It would have been useful to be provided with the SRA’s analysis of the original rationale for the present rules in order to be able to judge whether it is appropriate for them to be removed or relaxed.
ABS Authorisation - operational changes and improvements
Detail is lacking, and the rationale behind the original rule should be explained, the reason why the SRA wish to change the rule and the difference that the SRA thinks this will make before commenting. It can often take several years for problems with firms to become apparent. The full impact of ABS firms is unclear and it is too early to start relaxing regulatory requirements. ABS firms have potential risks: the involvement of non-lawyer managers and the structure of ABSs means that there can be significant cultural differences in approach and therefore safeguards may be necessary. In respect of non-ABS firms, the authorisation process has been developed by the SRA, driven by a perceived need to “harmonise” all forms of application. There is nothing in the Legal Services Act which envisaged that ABS-specific regulation would be applied to all firms including those operating a more traditional model.
Changes to insolvency rules
This seems logical but should form part of a wider debate about the reaction of the SRA to insolvency or the risk of insolvency. Frequent and repetitive demands by the SRA for information from a firm already in difficulty can make the situation worse. The perception established over many years is that the SRA generally regards statutory intervention as a cure-all though it can be of greater prejudice to clients than a properly managed administration.
Alternatives to client accounts
This is a complicated concept which deserves a full consultation of its own. On the face of it, this is a liberalising and permissive measure allowing solicitors to have a choice: however, there has been no meaningful attempt to consider the possible consequences of approving third party managed accounts. Client accounts can represent a risk; there will always be a danger of dishonesty, which is why the compensation fund was established. However of the vast amounts of money passing through solicitors' client accounts each year, the cost of supervising accounts and dealing with dishonesty is low in proportion.
Guidance on recording of non-material breaches
It is reasonable to allow firms to develop their own systems without prescription, which is all that is proposed. Guidance on material breaches linked to practice would be useful as defining a material breach can be difficult. Retaining a prescriptive requirement for a record to be kept is also of questionable value. The obligation to report material breaches including any pattern converting non-material to material should be sufficient.
Clarification on the outsourcing of legal and operational functions
Consideration of whether or not the current wording of O 7.10 is stifling innovation is a useful exercise.
Recording and reporting of diversity data
Initiatives towards promoting diversity and access are welcome. Whether the SRA needs to alter Outcomes or IBs is questionable, in this instance, the existing Principles seem sufficient.
The Apprenticeship Route to qualification
A move towards enabling qualification as a solicitor through the apprenticeship route is supported so long as they meet the same high standard as other currently existing routes. The SRA must also retain control over admission of such candidates, as for those qualifying by other routes.
Fee sharing and referrals
The current ban on referral fees should remain in place. The consultation paper correctly points to a view amongst some solicitors that such fees are regarded as unethical. In terms of crime or any publicly funded work, the reputation of the profession would be adversely affected by payment for work. This is not a situation analogous to referrals from estate agents in conveyancing, for example, where a charge can be properly disclosed to the paying client. The paying client is the LAA so there is a lack of transparency. Most legal aid firms struggle to make this work cost-effective. If they had to make payments to referrers as well, that would damage their economic position further, and may impact adversely on quality.
12 The Bill of Middlesex
social events
Middlesex Law Society 56th Annual Dinner & Dance Friday 25th September 2015 Reception: 7.00pm Dinner: 7.30pm to Midnight The Polish Club, Ognisko Restaurant 55 Prince’s Gate (Exhibition Road) London SW7 2PN Lounge Suits £60.00 Guest Speaker: Deputy Vice President Robert Bourns Wine, (+vodka shots) Dine & Dance to DJ ‘Sensible Sounds’ For ticket information please contact: Peter Hesom, peterhesom@aol.com or mobile: 07930 386798
The Bill of Middlesex 13
professional issues
Law Society 2020 The profession is changing and we need to change to support it. At the Law Society we are taking a hard look at how we will support, promote and represent solicitors for the next few years. We are launching our Law Society 2020 discussion. The chance for current and future members to tell us how we can best represent, support and promote their practice and the profession in future years. The legal marketplace is changing: funding cuts, changes in regulation and changing technology are just some of the issues we're grappling with and representing the profession on. We know you want us to be clearer about what we can do for you, for your practice and for the profession. Some of this is about focusing our support and our products and services in ways which make sense to you and developing more relevant communication from us, especially concerning services and benefits.
What are we going to do? We are developing a new strategy. To help us put members at the heart of what we do, we will be asking questions about: • what the future looks like for the legal sector • what regulation should look like • the title of solicitor and its value to the profession, business and the public • what the Law Society's role should be in legal education and professional standards • how we should manage our relationships and influencing to achieve the changes our members want • how we tailor what we do to support, promote and represent different parts of our membership. We need your views about the future of the profession and what you want from the Law Society. The decisions you help shape now will influence your Society and your profession.
How can you take part? If you have any thoughts or views on the above, or would like to see specific questions
Clever Accountants for Business Barnes Roffe is one of the UK’s top 50 accountancy firms providing audit and assurance, consulting, financial advisory, risk management and tax services to owner managed businesses across the South East of England. We offer top class technical advice to our clients and take a really “hands on” approach in dealing with our clients’ needs. Our backbone of strong professional accounting and tax partners go out of their way to regularly meet all their clients, no matter how large or small. By maintaining this close contact, we can really get involved in our clients’ businesses and make suggestions which are relevant to their individual circumstances and aspirations. We believe this personal approach is key to ensuring that we are able to provide a proactive and creative accountancy, audit and tax service led by our most experienced people.
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on each of these areas, please contact me. I would be very happy to meet you in person or discuss over the phone; alternatively please email me your thoughts directly. Mark Hudson Law Society Greater London Regional Manager mark.hudson@lawsociety.org.uk 07794 335818 @LSGreaterLondon
professional issues
72 LEGAL DATA BREACHES ESCALATED TO THE INFORMATION COMMISSIONER’S OFFICE IN 2014 New data reveals the reality of information security in the legal sector. A Freedom of Information request has revealed the number of data breaches reported to the Information Commissioner’s Office (ICO) during 2014. A total of 72 incidents came to light in which private data was mistakenly made available to the public by legal firms. The incidents included flaws within internal systems, poor processes and human error. Some of the key stats are summarised below: • The most common source of breaches was data being mailed, faxed or emailed to the wrong recipient in error. These simple human mistakes accounted for almost a third (23) of the incidents; • Closely following this was the loss or theft of physical paperwork. These breaches accounted for 21 of the incidents; • Devices passing out of the control of the legal firm with unencrypted information on them was another prominent cause of breaches (11); • Interestingly, data being hacked maliciously only accounted for one incident all year.
Paul Doble, chief sales and marketing officer at DX, an independent secure mail operator for the legal industry, comments: “With the exception of certain civil servants, there is arguably no other profession that has quite as much responsibility for handling confidential information than the legal sector; an issue compounded by the fact that the information often belongs to other companies and interests. As such, the pressure on the legal industry to become watertight where private data is concerned is mounting. Security is particularly hard to guarantee and track with information on physical documents, and is easily compromised as documents pass through the UK’s mainstream mail networks. Whilst legal firms focus increasingly on cyber security, thought must also be spared for the secure transit of physical information. Sending documents through a secure postal network is a sure fire way to stop unencrypted information falling into the wrong hands.
Perhaps the biggest surprise revealed by the Freedom of Information request is not the quantity of breaches being reported, but the nature of the causes. Far outweighing hacking is the prevalence of human error, with accidental disclosures through mis-sent communications providing the leading cause. Email in particular is an undeniably necessary communication medium in today’s working world, but firms need to ensure they are doing the minimum due diligence required to ensure that confidential information can’t be shared with the wrong person or left vulnerable to attack. In addition to providing this vital protection, email encryption can also provide the missing piece in the jigsaw that law firms need to satisfy industry regulators, as it will allow them to demonstrate that they are compliant with the latest data protection regulations.”
The Bill of Middlesex 15
professional issues
Capital Allowances The low profile of capital allowances and the complexity of the rules relating to fixtures have resulted in tens of billions of pounds of tax relief going unclaimed. This is highly relevant especially if you are in the process of buying/selling, building or renovating a property.
I
by Paul Levy
f you are running your own business, investment in the tools you need to carry out your work, did you know that items such as computers or machinery, can qualify for tax relief - so you could be sitting on a substantial untapped tax windfall!
Did you know that there are 15,716 Solicitors in practice, of which 12,709 are self-employed (Law Society 2014)?
You can claim capital allowances when you buy assets (also known as ‘capital assets’) that you keep to use in your business, eg:
We would welcome the opportunity to come in and talk to you about the 'day to day' accountancy and tax issues you may face, and offer some general advice on what you should do to remedy them.
• Equipment • Machinery • Business vehicles, eg: cars, vans or lorries
What are the benefits of Capital Allowances? They act as incentive to invest and can save businesses money by offsetting tax on profits which would otherwise be due. Capital allowances are used to deduct some, or all, of the value of the item from your profits before you pay tax. Capital allowances are the only means of providing tax relief upon capital expenditure incurred by both UK and overseas taxpayers on commercial property. This can extend to fixtures and features in a commercial building such as the CCTV security systems, air conditioning, computers, electrics, and fire alarms (to name but a few). Whilst claiming allowances on movable items (such as machinery, vehicles etc), many traders are unaware they are entitled to claim a proportion of the purchase consideration of a property. This is allowed because the purchase expenditure was deemed to have been in part for the fixtures in place at the time. It is worth highlighting however, that due to the difficulties of accurately valuing systems embedded in a property, allowances are often inaccurately assessed and processed even when taxpayers are aware of their right to claim. This means that many businesses are just ‘scratching the surface’ when it comes to this lucrative tax benefit.
Which items of capital expenditure qualify? As far as expenditure on property is concerned, the following types of capital assets can qualify for capital allowances: • Conversion of flats above shops. • Capital expenditure on research and development. • Plant and machinery (including both fixtures and personal property, or ‘chattels’). • Industrial buildings. • Agricultural buildings. Of the above types of expenditure, plant and machinery is by far the most common for capital allowances. The good news is that the law applies retrospectively and so the benefit is available even if you bought/built the property several years ago. There is no restriction on how far you can go back.
16 The Bill of Middlesex
If you think this would be of benefit to you and your practice, and would like to discuss this further, please do call Paul Levy or Justine Davies on 020 8861 7575 or email: paul@lawrencegrant.co.uk
education focus
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The Bill of Middlesex 17
management
PENSION FLEXIBILITY 5 MONTHS ON George Osborne's decision to overhaul the money purchase pension system, came into effect on the 6th April 2015. Now, 5 months on from these changes, we review how the pension changes have affected both client and provider experiences. First a summary of what was introduced: 1.
2.
A new flexible drawdown system (FAD) designed to allow members of money purchase pension schemes to take what they liked from their pension while the remainder remained invested removing any previous limits imposed by the Provider. A new retirement system called Uncrystallised Funds Pension Lump Sum (UFPLS). UFPLS allows a member to draw a lump sum from the untouched money purchase pension fund as 25% tax free and 75% as taxable income.
3.
Increased annuity flexibility allowing payments to vary up and down subject to predetermined conditions.
4.
Changes to the treatment of death benefits, including the reduction in the rate of income tax from 55% to 45% for deaths on or after age 75 and the introduction of intergenerational transfers.
5.
New contribution rules with the introduction of a new £10,000 money purchase annual allowance and stricter provisions on recycling tax free lump sums as further pension contributions.
There was nothing in the legislation forcing providers to offer these new retirement options. Some providers limited their options to full pension encashment, annuity purchase or transfer away. Pressured by the Regulator to be the "2nd line of defence", providers have asked clients to confirm they sought advice before accessing their pension pot. The complexity of these pension changes has no doubt increased the need for good quality pensions advice. The Government's Guidance Guarantee via www.pensionwise.gov.uk allow people to access free pension information but it is emphasised this was not a replacement for financial advice. Client experiences have been mixed with many seeing Pension Wise as yet another barrier to accessing their funds. Concerns have also grown about the rise of pension scammers offering free pension reviews, legal loopholes and one off investment opportunities.
18 The Bill of Middlesex
The Treasury is set to receive £360M this year from pensions access, but according to Pension Providers, many clients were unaware of the tax treatment of pension withdrawals. With only the first 25% of a pension fund available to be taken tax-free, the rest is taxed as income, those who took large withdrawals in April 2015 suffered emergency tax code deductions, leaving clients to seek rebates later via HMRC. Media speculation about the death of the annuity seems overplayed. Many clients now consider a blended approach choosing an annuity to underpin incomes together with the new FAD option, however financial advice should always be sought to ensure that what is chosen best suits a client’s individual circumstances. The new intergenerational transfer facility has meant pension providers have re-written their Expression of Wishes documents to ensure greater death benefit flexibility with providers able to pay income to a beneficiary in addition to the lump sum option. Once a client has accessed the new freedoms, they are capped on future pension contributions down from £40,000 to £10,000 per annum losing the ability to access carry forward of any previous unused relief. With greater freedom comes responsibility. A no cap, no limits sounds straightforward, but with unintended consequences and potential pitfalls, the need for good quality financial advice has never been greater.
This article is intended for qualified lawyers and solicitors and is not to be distributed to retail clients, it is for illustration purposes only and based on our understanding of current legislation. The value of investments can fall as well as rise and you can lose some or all of your money. Steven Vallery - Business Development Director - S4 Financial Limited Contact: 0127634932 Jonathan Lochery - Director - I.P.M. SIPP Administration Limited Contact: 08451303443
management
Are you being sold short? Short-form proposal forms are just one tactic brokers and insurers might employ to retain your business at renewal. Whilst short form proposal forms may save you time, do they save you money?
Why detail is important Underwriters love detail, the more they have, the more assured they feel when making a decision. The less information they have, the more likely they are to charge a higher price because the business they are insuring is not known to them. This is to a lesser extent when it comes to renewing a client’s policy for the obvious reason that they are a known entity. Full proposal forms are the best way to way to achieve competitive terms as they give insurers the most comprehensive overview of a firm’s business.
Being sold short When a broker or insurer tells a firm they can work off a short-form proposal form, what they are unlikely to tell you is that this will only be fitfor-purpose where their current insurer is concerned. This means they are only likely to receive only one renewal offer. While the broker might claim this is the most competitive price they have sourced, it is unlikely that this has been benchmarked.
We would suggest not simply relying upon a short-form proposal form to obtain the best terms, but also invest your time in completing a market standard proposal form, such as Chancery Pii’s which is available and stored online meaning at subsequent renewals the information simply needs up-dating, or the Law Society’s common proposal form which can be used to obtain alternative quotations.
Ask the question If your broker has advised that a short-form proposal form will suffice, think long and hard as to whether the saving in time equates to saving money on your renewal. Simply ask your broker the question as to whether the information is sufficient to obtain the best terms in the market or request a standard proposal form.
The managing general agent model
• We do not accept submissions from brokers meaning we can always offer an alternative • Our panel of markets is unique to this sector allowing us to offer genuinely alternative quotes • Our pricing structure is based solely around the experience of the 1 to 4 partner segment We realise however that completing proposal forms in full multiple times can be a painful process and for that reason we are accepting existing proposal forms for this renewal season. For more information email pi.enquiries@chancerypii.co.uk
by Mark Carver, of Chancery Pii
Chancery Pii is a managing general agency backed by a panel of A+ rated insurers on behalf of whom we write business. There are several benefits to this approach: • We are backed by the financial strength of several insurers instead of just one • Although our panel has not changed since we launched, if a single insurer did decide to exit the market, our security is not remotely compromised
The Bill of Middlesex 19
management Second 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 Two
Introduction I never intended to become a lawyer, legal
aid or otherwise. It was chance, and perhaps also providence, that led me to become one. My Father had been a friend of Lord Denning at Oxford and he was best man at my parents wedding but he was never an influence on my career choice. Many years later my father told me a story which he appreciated he was telling against himself. In their early years after leaving Oxford Lord Denning was a young barrister and my father a Church of England clergyman but still they kept in touch. On one occasion my father told me that he had told Lord Denning that he could not understand why he had chosen to become a barrister ‘when there was no opportunity of doing good’. My father told me that for the first and only time on their friendship Lord Denning was absolutely furious and told my father that he had no idea what he was talking about. Only when Lord Denning was at the height of his fame did my father finally understand what Lord Denning had meant. With regard to my own career I was so undecided that on one day I had decided to join the Kenya Police force and virtually on the next day I agreed to become articled to the Town Clerk of Chingford. This was simply a means of entering a profession with the added advantage of the local council paying me a salary. There I worked under the supervision of Ernest Bleakley, who was what was known as a managing clerk, and was the finest and most precise legal draftsman I have ever met. But when I eventually qualified after 6 years of working by day and studying four hours each night I still did not feel like a proper lawyer. I had never met a real client as the council was my only client. I knew how to mortgage a
20 The Bill of Middlesex
house but not how to buy or sell one. When I qualified I was offered a job managing a branch office off a firm practising in Southend on Sea. I agreed to take it. I should never have been allowed to run a branch office unsupervised whether in Southend on Sea or anywhere else. I had no experience of private practice and had not studied family law at Law School. I learned on the job. When I came across a new topic such as the Married Women’s Property Act. I would travel up to London and buy a practice booklet on the subject from one of the legal bookshops off Chancery Lance. I used good young counsel at the start of their careers, such as the young Anthony Scrivener, now an eminent barrister, and somehow managed to survive without any legal catastrophe that I am aware of. I then moved to various other firms, including a local council again for a time. By 1965 I was the manager of Gillham’s branch office in Acton, who eventually sold the goodwill to me. I opened my own practice soon to become Darlington and Parkinson of which I was senior partner for 25 years. A year after opening my own firm I needed a new solicitor for our Ealing office. A young solicitor, Graham Parkinson required more money than I was prepared to pay him, and I nearly lost him, but eventually we came to an agreement and were partners for 12 years. It was a good partnership with Graham more business-like than I was. Graham left to become a stipendiary magistrate from which he progressed to chief metropolitan magistrate. We were joined by many able legal aid lawyers including Peter Jones, Kenneth Grant, Adrian Worthington, Karen Venables, Ann Grubb, Sheila Kavanagh, Felicity
Shakespeare, Jane Smith, Felicity Lavelle, Robert Brown, Alice Kirwan, Kathy Thomas, and her partner Graham French - the first four of whom subsequently became judges. I apologise to others not named but they are too numerous to mention. Robin Auld, later a Court of Appeal judge, and author of the Auld review on criminal justice was a much prized advocate when he was available. I was struck by his independent spirit when he insisted on bringing me to the bar robing room at a time when solicitors were not welcome there.
...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
management
WOULD YOU TWIG IF YOUR FAMILY TREE WAS INCORRECT?‌ THE IMPORTANCE OF USING A PROBATE GENEALOGIST As so often in life the basics are sometimes overlooked: in similar vein, the importance of identifying all known heirs prior to distribution is often Pictured: James Gartland not given the thought and effort that it deserves. In-house Solicitor at Estate Research Estate Research are a leading firm of probate genealogists with over 100 hundred years in-house experience and an array of specialist technology at our disposal to assist you with problems you may encounter in processing a probate file. One of the services we provide is our family tree verification service. We are often approached by clients asking to verify a hand-drawn family tree that they have been provided by an administrator that principally stems from a client’s testimony. By way of an example, by no means uncommon, we recently checked a tree for a solicitor who was on the verge of distributing an estate to a sole maternal cousin. The heir (also the administratrix) had provided a tree stating that the deceased’s father and paternal family had no family.
Fortunately, the solicitor involved asked us to verify the estate before he finalised the estate for distribution. Our subsequent investigations revealed that the paternal family had over 25 full blood heirs, some as far afield as New Zealand and Eastern Europe; however, even more crucially we discovered that the administratrix was actually a half-blood maternal cousin and therefore not entitled to benefit under intestacy. Another case involved a large estate: the Administrator had stated he was the sole heir based mainly upon a family tree compiled from information he had discovered on the internet. The tree stated that numerous branches had no descendants. The administrating solicitor, mindful of the risk present to themselves and to the putative administrator, contacted
us to investigate the family tree; again, we discovered the tree was indeed incomplete and proceeded to locate heirs in South Africa and the US. If you are considering a missing beneficiary indemnity policy to address the risk posed by a missing heir or indeterminate family tree you will invariably be required to provide a genealogists report to the insurer. As part of our family tree verification service we provide a free no-obligation quotation for you to consider. The examples above highlight the necessity of confirming the family tree and the importance of instructing a genealogist. Please refer to our website for further details.
The Bill of Middlesex 21
spotlight on... Pictured: Malcolm MacDonald
International Family Law - Malcolm MacDonald, Barrister In a recent address to the Family Law Bar Association at Cumberland Lodge in May 2015, the President of the Family Division of England and Wales, Sir James Munby, identified International Family Law as one of the areas of family law of particular importance during his Presidency with a view to broadening understanding of international children law beyond specialist solicitors and barristers. In this article I have identified some recent cases that highlight issues in international children law cases that are not only topical, but are also examples of some important issues that may confront practitioners when dealing with child abduction cases and other international children law cases.
Habitual Residence: AR v RN (Scotland) [2015] UKSC 35 The case of AR v RN involved child abduction proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Hague Convention). In this case the mother had moved to Scotland with two children (aged 3 and 1) from France with the father’s consent. The father alleged that there was an agreement that the mother should live in Scotland for 12 months during her maternity leave and then return to France. The mother’s position was that the family was to move permanently from France with the father joining the family once the family home had been sold and arrangements had been made for the father’s business to be managed. The parents were then to decide where they were going to settle in the long term. The family home was sold in August 2013. The father visited the family once a month in Scotland and the mother and children had holidayed twice for short periods with the father in France. The mother and children moved into a rental property adjacent to the maternal grandparents’ home in Scotland. The oldest child attended nursery. In November 2013 the mother discovered that the father was having an extra marital affair in France. The mother, ended the relationship with the father and issued proceedings in Scotland on 20 November 2013 for a residence order and an interdict (prohibitive order) against the father removing the children from Scotland. The father remained in France and sought the return of the children on the grounds that the mother’s initiation of proceedings in Scotland was a ‘wrongful retention’ under the 1980 Hague Convention. The first question for the Scottish Court at first instance to answer was whether the children were ‘habitually resident’ in France immediately before 20 November 2013. The court at first instance concluded that the children were habitually residence in France, primarily because nothing in the communications between the mother and father indicated a joint intention to uproot themselves and relocate permanently (my emphasis) to Scotland. This was overturned on appeal in Scotland on the grounds that the court at first instance had erred in law in treating a shared parental intention to move permanently to Scotland as an essential element in any alteration of the children’s habitual residence from France to Scotland. The Appeal Court found that the children were habitually resident in Scotland at the time of the mother’s application and identified the ‘real issue’ as whether there needed to be a longer time than four months for the children to change habitual residence. The Appeal Court found that the four months the children had spent in Scotland was sufficient when the whole circumstances of the case were taken into consideration. The father then appealed to the Supreme Court to restore the first instance decision.
22 The Bill of Middlesex
In cases of child abduction involving two states in the EU (in this case France and the UK) the 1980 Hague Convention is supplemented by Brussels IIR (Article’s 10 and 11) and Brussels IIR takes precedence over the 1980 Hague Convention. This means that the concept of ‘habitual residence’ as interpreted under Brussels IIR determines how ‘habitual residence’ is interpreted under the 1980 Hague Convention in the UK. The Supreme Court in coming to its decision referred to guidance on how ‘habitual residence’ is to be determined for the purposes of applying the 1980 Hague Convention and Brussels IIR in its previous decisions in the cases of A v A [2013] UKSC 60; and In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1; [2014] AC 1038. The guidance was developed with reference to case law from the Court of Justice of the European Union in Proceedings brought by A (Case C- 523/07) [2010] Fam 42, Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22, and C v M (Case C-376/14PPU) [2015] Fam 116. The Supreme Court found that, consistent with the case law set out above, a child’s ‘habitual residence’ corresponds to the place which reflects some degree of integration by the child in a social and family environment. Factors that are to be taken into consideration include • the duration, regularity, conditions and reasons for the stay and the family's move to that state, • the child's nationality, • the place and conditions of attendance at school, • linguistic knowledge and the family and social relationships of the child If a child is an infant then there will be a need to focus on the primary carer rather than the child. “Habitual residence’ is distinguished from ‘temporary’ residence by having a certain duration that reflects an adequate degree of permanence. The Supreme Court emphasised that it is the ‘stability’ of the residence that is important, not whether it is of ‘permanent’ character. There is no requirement that the child should have been resident in the country in question for a particular period of time, nor is it necessary that there should be an intention on the part of one or both parents to reside there permanently or indefinitely. ‘Habitual residence’ is, therefore, a question of fact requiring an evaluation of all the relevant circumstances. There are no legal ‘rules’ that apply, for example, that a parent cannot unilaterally change the habitual residence of a child. The Supreme Court found that the Scottish court at first instance was in error because it had focused on the intention of the parties and failed to consider the ‘abundant’ evidence relating to the stability of the mother’s and the children’s lives in Scotland, and their integration into their social and family environment there. The Supreme Court upheld the Scottish Appeal’s Court decision that the children were habitually resident in
Scotland and had not been wrongfully retained by the mother in Scotland. For the time being, their home was in Scotland. Their social life was there. Their family life was predominantly there. The longer time went on, the more deeply integrated they had become into their environment in Scotland. Other issues raised on appeal, and in the court below, by the mother that her application for a residence order in Scotland was not a ‘wrongful retention’ per se under the 1980 Hague Convention and whether the father had in fact consented to the children’s retention in Scotland did not need to be determined by the court. The case has wider relevance than child abduction cases under the 1980 Hague Convention because the ‘habitual residence’ of the child is the primary source of jurisdiction under Article 8 of Brussels IIR for issues of parental responsibility, not only between EU states, but also between the UK and non EU member states. [Re A (Jurisdiction: Return of Child) [2013] UKSC 60]]
A Child’s Objections to Return - Defences under Article 13 of the Hague Convention: Re M[2015] EWCA Civ 26 and Re U-B [2015] EWCA Civ 60 and and Re K (Lithuania)[2015] EWCA Civ 720 Article 13 of the 1980 Hague Convention sets out the circumstances where a requested state is not bound to order the return of a ‘wrongfully removed’ or ‘retained’ child under Article 12. In Re M, Black LJ conducted a comprehensive review of the case law to determine what was the proper approach to deciding whether a child’s objections to their return to their country of habitual residence under Article 13 should prevent a return order being made. The facts of the case were that the mother and children (D ( aged 17), J ( aged 13), T( aged 11) and I aged 6) came to England from Ireland on 12 March 2014 in circumstances that were conceded by the mother amounted to the children being wrongfully removed from Ireland. The mother alleged that she had fled Ireland due to serious domestic violence perpetrated by the father. CAFCASS interviewed the children who expressed fear about returning to Ireland and also of their father, describing traumatic experiences in the home, witnessing and being subject to domestic violence from the father. The father disputed the allegations. He issued an application for a return order under the 1980 Hague Convention in June 2014. In proceedings at first instance in the High Court an order was made for the children to return to Ireland. Black LJ found that there should be a two stage process to considering a child’s objections to return under Article 13. The first stage is a ‘gateway’ stage which is confined to a straightforward and robust examination of whether the simple terms of the Convention are satisfied in that the child ‘objects’ to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.
spotlight on... Pictured: Sir James Munby
In respect of the ‘gateway stage’ Black LJ identified a number of issues to be considered : • the child’s age and maturity and whether they object is a matter of fact • there is no fixed age at which a child’s objections may be taken into account • the child’s views must amount to an ‘objection’ as distinct from a ‘wish’ or ‘preference’ that may fall short of an ‘objection’ • the child’s objection is not confined to an objection to the country of habitual residence but may also be to the return to a parent’s care • a child’s objections are not determinative but will be considered alongside other factors at the ‘second stage’ where the court exercises its discretion. In exercising the court’s discretion at the second stage Black LJ emphasised that the expedition required in 1980 Hague Convention cases does not permit a full investigation of welfare issues and that normally the courts deal with such cases without hearing oral evidence and without resolving contested issues of fact. The constraints of time means that there is limited scope for the filing of documentary evidence and statements from the parties responding to material as it comes to light. The judge will have to take a view about the limited evidence assisted by submissions. It would not be true to the spirit of the 1980 Hague Convention or serve the interests of the children if applications became bogged down in protracted hearings and investigations. Black LJ identified facts relevant to the exercise of the court’s discretion in this case as . • the availability and adequacy of protective measures in Ireland, • the serious emotional disturbance of J, • all the children’s feelings against a return to Ireland • the possibility of resuming a positive relationship with the father, • separation from family members, • the age of children ( noting that it may be appropriate to give more weight to the views of an older child than a younger child) • Hague Convention considerations that include the benefits that flow for children from the swift return of abducted children to the place they have been living, comity between contracting states, respect for one another’s judicial processes and the deterrence of abduction • the fact the children had always lived in Ireland. • the role the father had in the children’s lives • concerns about the mother’s ability to care for the children • the children’s unsettled life in England ( the family were living in a refuge) and
•
the Irish court’s jurisdiction in the case under Brussels IIR based on the ‘habitual residence’ of the children in Ireland
In weighing up these factors Black LJ found that there were strong reasons not to order the return of J to Ireland in light of his age, fears, strength of his objections and his emotional vulnerability. In respect of T the case was less compelling, however Black LJ found that it would not be appropriate for T to leave behind his elder brothers to make a return to which he was opposed. In respect of I Black LJ did not determine her position on the basis of I’s objections but found that it would place in her in an intolerable situation if she was to be returned to Ireland. Black LJ also set out some guidance in respect of the joinder of children to Hague Convention proceedings and on appeals. The Court of Appeal had cause to consider a child’s objection to return under Article 13 in the cases of Re UB and most recently in Re K (1980 Hague Convention) (Lithuania). Black LJ presided in both cases and applied the approach she had developed in Re M. In Re U-B a 14 year old boy objected to returning from England to his mother’s care in Spain after his summer holidays in England with his father and in a context where it was not alleged that the child would suffer harm in his mother’s care. By contrast in Re K a return order was made in respect of an 11 year old who had refused to return to her father’s care in Lithuania after summer holidays where the child had raised allegations of abuse by the father towards her and members of the maternal family.
Temporary leave to take a child outside of the jurisdiction: Re H (A child) (Temporary Leave to Remove: Turkey) (Enforcement of Child Arrangements Order) [2015] EWFC 39 (Fam). The case of Re H raises a number of issues in the context of seeking temporary leave to take a child outside the jurisdiction of England and Wales. This type of case usually takes place in the shadow of ‘child abduction’ concerns about what steps can be taken should the child not return after the temporary leave has expired. The parents in Re H were Iranian nationals. The father had arrived in the UK as a political refugee. There had been a long history of litigation, a history of domestic violence, a troubled history of contact between the father and child and Local Authority involvement with the family since 2010. The father had successfully appealed an application by the mother to take their four year old daughter to Iran. The Court of Appeal over turned a district judge’s decision to allow the mother to travel with the child to Iran [Re H [2014] EWCA Civ 989] . The Court of Appeal gave guidance in the case that where a non - Hague country was involved the case should be heard in the High Court. This was because in such cases there were no other arrangements in place for the recognition or enforcement of decisions made by the courts in this jurisdiction. The expertise of High Court judges meant that they could draw on experience to take judicial notice of international circumstances in an appropriate case or by hearing expert evidence if necessary. Following the guidance of Patten LJ in Re R (A Child) [2013] EWCA Civ 1115, the Court of Appeal stated whether by taking judicial notice or by hearing expert evidence, it is of critical importance that the court gives consideration to the magnitude of the risk if permission is given, the magnitude of the consequences if the child cannot be returned or the order is breached and whether
the risk and the consequences can be provided for by the available safeguards. The Court of Appeal found that the evidence before the lower court from the Foreign and Commonwealth Office and the lack of identified safeguards were not sufficient to meet the risk of taking the child to Iran. The case before Cobb J was a re-hearing of the mother’s application. However, the mother shortly before the commencement of the hearing and without formal application sought leave to remove the child temporarily to Turkey (a Hague Country) should her primary application fail. Cobb J heard oral evidence from an expert on Iranian law. At the conclusion of the evidence the mother conceded that the plan to travel to Iran was not sustainable given the risks identified by the expert of the Iranian authorities preventing her from returning from Iran with the child. In considering the mother’s application for temporary leave Cobb J applied the guidance of Patten LJ in Re R and granted the mother’s application on the grounds that it was in the child’s welfare, pursuant to Section 1 of the Children Act 1989 for her to have a holiday with her maternal family. Cobb J accepted there were sufficient safeguards for return of the child including that there was little evidence that the mother wished to return to Iran permanently but also rejected the father’s concerns about the dangers of the mother travelling to Iran from Turkey. The following safeguards were identified: • Turkey was signatory to the 1980 Hague Convention • Sworn undertakings were to be given by the mother to the Court: i. to provide details of travel, accommodation, flight numbers and other relevant information ii.to return AH to this jurisdiction at the conclusion of the holiday; iii. not to seek a passport for AH in Turkey, from the Embassy or consulate in Istanbul or Ankara or elsewhere; iv. to apply as soon as practicable to obtain a British passport for herself. c. The mother would swear her intention to return AH to this jurisdiction on the Koran before an Imam, if required; d. The mother to lodge her and her Iranian child’s birth certificate and a divorce certificate with her solicitors during the period of travel Cobb J noted that the father had in the past previously proposed that the mother travel to Turkey to meet her family as an alternative to traveling to Iran and that the father was a less than impressive witness. The mother’s application for temporary leave to remove the child to Turkey for a holiday was granted.
Conclusion The cases outlined above raise common issues in cases of child abduction and applications for temporary leave to remove and have broader application in matters involving international children law. I hope I have been able to demonstrate that the issues involved are not so esoteric such that they should be the sole province of specialist solicitors and barristers.
Malcolm Macdonald, Barrister, 36 Bedford Row Malcolm is a dual qualified solicitor and barrister in England and Wales and Australia. He qualified in Australia in 2004, cross qualified as a solicitor in England and Wales in 25 and was called to the Bar in 2010. He has extensive advocacy experience in complex litigation and has been reported in several leading cases.
The Bill of Middlesex 23
news
Ahoy There!
If you are a forward thinking legal firm looking for new ways to network with industry peers and support your internal team development the Legal Cup could be perfect for you. Open exclusively for legal Industry professionals, each company enters a team (of between 7-10 people) who sail together on a premium sailing yacht, racing against other teams from rival legal companies! It doesn’t matter if you have never set foot on a yacht before, part of the entry package includes hire of a high-quality, fully commercially insured yacht with professional sailors on board to literally show you the ropes, so you can learn to
24 The Bill of Middlesex
The Legal Cup is a unique event; combining productive networking, constructive team building, raising funds for charity, learning a new skills and having lots of fun!
sail and be an active crew member. Alternatively, if you own your own yacht you are welcome to enter it and bring your own crew. In May 2015, 19 teams took part including many Magic Circle and Silver Circle names, with the Bar Yacht Club and Allen & Overy claiming the Winner’s Trophies. Field Fisher, Linklaters and Ricoh also featured on the podium! The next chance to take part in the Legal Cup sailing regatta is on 14-15 May 2016. If you would like to find out more the Legal Cup including who took part in 2015, see the event photos and download a booking
form please visit the event website www.britanniaevents.co.uk/legal-cup You are also invited to join the Legal Cup networking drinks on Tuesday 1st September 2015 from 6.30pm in central London. It’s a great opportunity to meet some of the teams who take part, as well as the event organisers, so you can find out more about how to enter, what’s involved and how you could benefit from taking part. Full details on the Legal Cup Networking Drinks and the chance to RSVP are available here https://goo.gl/otHRyr or call the Event Manager on 02380 458900.
news
WINE OF One nation justice system THE SEASON with Conal Gregory, Master of Wine
The Law Society has already spoken with the new Justice Secretary about challenges facing the justice system, and the following extract from the Law Society President is an important message worth repeating here:
“Solicitors, who are at the heart of our justice system, support access to justice for everyone irrespective of background. Tackling waste is important but investment in the justice system, which is a key public service like the NHS and education, is fundamental if services to the public are to be maintained and improved." “We welcome the news that the Justice Secretary recognises this and is calling on HM Treasury for funding. However, recent court and employment tribunal fee increases made by government have restricted the ability of ordinary people to access the justice they deserve. Last year 600,000 people were
denied legal aid who would have been entitled to it in the past. This includes people who have had catastrophic injuries and victims of domestic violence. It is no wonder that the UK justice system is being labelled 'two tier', which is damaging our reputation as the best legal system in the world." "The legal profession is committed to pro bono and nearly half of solicitors in private practice average more than 50 hours per year. But pro bono is never a substitute for a properly funded system of legal aid, which needs skilled and experienced solicitors to provide expert legal advice to those who need it."
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The Bill of Middlesex 25
news
LEAVING THEIR BELOVED FOUR-LEGGED FRIEND WITHOUT AN OWNER Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved four-legged 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. One of these dogs was Suzy who arrived at Dogs Trust Loughborough aged six-years-old when their owner sadly passed away. Scottish Terrier Suzy had spent most of her life with her previous owner so she was used to her home comforts. Dogs Trust Loughborough was able provide Suzy with a home away from home while she awaited her 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 Loughborough, Suzy was soon rehomed and began settling in with her new family.
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Adrian Burder, Dogs Trust CEO says, “Thanks to Dogs Trust’s Canine Card Card scheme, dogs in need of a new home are given a lifeline meaning that Suzy and many dogs like her 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
Latest Lasting Power of Attorney process removes safeguards, warns solicitors The new Lasting Power of Attorney (LPA) process, provided by the Office of the Public Guardian last month, removes certain safeguards that could lead to abuse of the system, warns solicitors Moore Blatch. The new process is intended to increase take-up of LPAs, which is woefully low, with only around 15% of people aged over 75 having one. However, because of the simplification, critical consumer safeguards have been lost. Of greatest concern is the fact a certification page exists where a third party certificate provider signs to say that the donor understands what is being signed and that no one has pressurised them into signing it. However, there is now no way of checking whether the person who is signing this part of the form has the relevant qualifications to do so. Second, is the removal of the need to notify third parties of the fact that a LPA has been registered, thus removing a safety net whereby coercion or fraud may be identified. According to Moore Blatch, there are a number of reasons why the take-up of LPAs remains low, including a general lack of awareness of LPAs, a lack of willingness to accept that one might need an LPA, and the perceived and actual complexity of putting one in place.
Common issues with the incorrect completion of a Lasting Power of Attorney include: • Incorrect use of specific terminology such as the use of ‘must’ or ‘shall’ as a definitive statement; • Use of ambiguous phraseology that is open to debate where one or more attorneys are appointed; • Incorrect or conflicting appointments of attorneys that could prevent the effective or total ongoing management of a person’s financial affairs or decisions relating to their health and welfare;
• Failure to take account of the likely future preparedness of attorneys whether it’s their own health, desire or ability to manage what can often be challenging emotional or financial decisions. Fiona Heald, Head of the Court of Protection team at Moore Blatch solicitors, comments; “We welcome any initiative that encourages people to put in place an LPA; however, simplification must not mean greater scope for fraud or abuse. Given the nature of an LPA, such abuse may never be discovered, especially where it is enacted for mental health reasons as the ‘applicant’ may never be in a position to expose the fraud.”
The Office of Public Guardian does not have the resources to check if the Power will work; they only police those that are not made in accordance with the legislation, so if someone makes an LPA with incorrect provisions which make it useless, it will still be registered. Unfortunately, people think if the LPA is registered it is all OK, but that is not the case, and they often find this out when it’s too late.”
“LPAs are complex and many people still require legal advice as it is really very easy to get them wrong and many people do.
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Conveyancing
Speed up house buying with the personal touch Moving house or business premises can be one of the more stressful processes in a person’s lifetime. One of the frustrations many consumers and businesses face when buying a house or commercial property is the length of time it takes to complete. Often, it’s search turnaround times during the conveyancing process that can be a challenge for solicitors and their clients. Not just in terms of the reality of the delay, but also how this can be perceived by customers. Today, clients expect property transactions to move quickly, but some local authorities can take longer to return searches due to resource issues and a backlog of work. That can create tension for all those involved in the buying and selling of homes and commercial buildings. There is, however, an option that can cut turnaround times while providing the same quality of search for residential and commercial searches. Personal Search Agency (PSA), a subsidiary of SearchFlow, offers an alternative to official searches that puts the entire process in the hands of a dedicated and experienced team. It’s a bespoke service that many buyers and sellers value highly. In areas where local authorities take three weeks or longer to provide conveyancing results, a personal search can reduce this waiting time by a whole week, on average. And across some locations, including London, SearchFlow figures show buyers could shave as much as two weeks off the property transaction process by instructing a personal search. Latest research from SearchFlow’s Conveyancer Sentiment Survey suggests that many feel the problem of delays could get worse. In total, 31% of conveyancers said that they felt changes to the Local Land Charge process could further extend turnaround times. Personal searches therefore promise a viable alternative that could ease the delays associated not just with present challenges, but future changes. “There are a number of factors that impact turnaround times for official searches at local authorities, including lack of resource, dealing with crises and changes in processes,” said SearchFlow’s Search Manager Ray
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Farrell. “Solicitors whose clients are looking for a faster transaction should consider recommending a personal search solution. “Our 22-strong, directly-employed personal search team at SearchFlow is extremely experienced and they have the most up-to-date technology available to deliver fast results. They visit the relevant local authority for each and every search, rather than relying on past or banked data, and so are equally as reliable as official searches - if not better.” Delays in turnaround times for conveyancing searches impact solicitors as well as their clients. And with 44% of conveyancers expecting the market to improve by the end of 2015, Farrell says that now is the time for the industry to consolidate their operations and improve efficiency. “Efficiency drives profitability,” he said. “The faster solicitors are able to process clients, the more they’ll be able to take on and the more revenue they’ll make. Then there’s the service angle. By easing the conveyancing process for clients, solicitors will be offering better service.” PSA is staffed by a regional team of fieldbased professionals and an internal administration team. Covering every region of England and Wales, they work to secure appointments and visit local authority offices, doing all the legwork in person. More than 50,000 searches were undertaken by the team last year. But it’s not just speed that defines PSA searches. In-depth knowledge of the Local Land Charges Register, as well as the ability to drill into the detail of CON29 responses and to decipher and interpret their content means conveyancers can be sure of the accuracy of the work. When a
solicitor instructs a personal search to be undertaken, they will have a single point of contact so that there is regular communication and updates throughout the process. For the solicitor’s client, the personal search option may also resonate in a positive way and assuage some of the negativity that can define the conveyancing process. Today, buyers increasingly seek the personal, bespoke touch whatever the goods or services being bought. So why not a personal search to help deliver a competitive advantage and show the industry is on the front foot? According to the Conveyancer Sentiment Survey nearly two thirds of conveyancers have seen the biggest volume of growth from direct business. And this statistic alone could help convince more of the benefits in promoting personal search to potential clients. All PSA searches are search code compliant and provide protection of £10 million in professional indemnity cover as standard. In addition the team goes beyond regulated searches, offering an ad hoc enquiry service for other aspects including highways and planning. Call 01732 523952 if you would like to speak to SearchFlow and PSA about the services they offer.
cyber security
The Growing Threat of Ransomware by Robert Rutherford, CEO of QuoStar Solutions
Imagine working all week on a complex matter with rafts of documents when one day you log onto your laptop and find that all of your files have been encrypted and you don’t know the key, plus all the documents and files on the firm’s wider network have also been encrypted. You now have a screen demanding you pay up within 72 hours or face losing all your data.
I
t sounds horrifying but many firms fall victim to this exact threat, which is the result of ransomware - a type of malware which has been rapidly growing in popularity over the last few months. As legal professionals you must take sufficient steps to protect the confidential data in your care, but in order to properly defend your firm from the threat of ransomware you must first understand what it is and how it works.
What is ransomware? Ransomware is a type of malware which prevents or limits a user’s access to their system. It’s usually carried out for monetary gain, as hackers will force victims to pay a “ransom” fee in order to regain access. There are many different types of ransomware out there, including: CryptoLocker, Crowti (also known as CryptoWall), Tescrypt or Teslacrypt, and Reveton, but essentially they all aim to do the same thing, either: • Encrypt files and folders you have access to (e.g. the contents of your documents, your photos, spreadsheets etc.) - once these files are encrypted they are deleted. Generally within the folder containing the deleted files there will a text file with instructions for payment. Some versions show a lock screen but with others you may only notice a problem once you try to access your files. • Lock the screen and demand payment - this ransomware presents a full screen image that blocks all other windows, sometimes it may display the official logo of the police, FBI or similar and claim that your computer has been locked due to illegal or malicious activity. A payment method will then be stated to provide you with the necessary key to unlock your files.
A Brief History of Ransomware Originally limited to Russia, this style of attack has proved profitable for hackers and has spread worldwide, growing more and more sophisticated. We’ve seen the
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rise of Reveton or Police Malware, which tracks the user’s geographical location and displays a notification page supposedly from the local law enforcement agency stating the computer has been locked due to illegal or suspicious activity. In late 2013 came a new type of ransomware, dubbed “CryptoLocker”, which encrypts files as well as locking the system to ensure users would still pay up even if the malware was deleted. It has proven to be a successful form of attack and, since it’s discovery, many cybercriminals have followed suit with their own types and variants based on CryptoLocker. Microsoft have noted Crowti to be the most prevalent ransomware of 2015 so far, but the infection rate of Tescrypt has spiked dramatically since April this year.
How Can Your Protect Yourself from Ransomware? If you’re simply relying on anti-virus to protect you from ransomware then that’s not a great business strategy. Hundreds of thousands of malicious programmes appear and disappear every day. While anti-virus protection can block some known ransomware, other variants could slip past the filters, no matter how advanced. Luckily there’s lots of other tactics you can implement: • Invest in employee training Employees are generally the weak link when it comes to security, which is why it’s important to make them aware of the impact their actions can have on the firm. If your workforce is unaware about how to spot a phishing scam or why it’s important to determine the validity of the email before clicking on a link then your company is vulnerable. Investing in security awareness training can be greatly beneficial and will help employees. • Perform regular back-ups Make it a priority to perform regular, point-of-time back-ups. An infection like CryptoLocker encrypts files on
drives that are mapped - this includes external drives like USB drives and network or cloud files which have been assigned a drive letter. Therefore it’s important to have a regular backup schedule which backs up files and data to an external devices and/or locations. Continuous back-up is ideal, or as often as you can. Only performing back-ups once a day means you could lose a day’s worth of work, expensive in terms of lost revenue. • Regularly patch or update your software Hackers often rely on people running outdated software with known vulnerabilities which they can exploit. To decrease the likelihood of ransomware infection, ensure you are regularly updating your systems. • Layer your security Anti-virus should be layered as part of a good security suite which contains intelligent anti-malware software and a software firewall. It’s important to have numerous layers of protection as hackers often send out new variants, so a triple layer of protection should help prevent an infection. At a minimum, ensure you are scanning for threats at the email gateways, firewall and end-user devices. • Control EXEs Depending on your gateway email scanner, if it has the ability to do so then you may wish to deny emails sent with “.EXE” files or emails sent with two file extensions (“*.*.EXE” files, which are executable). Advanced endpoint protection systems and operating systems can also be set to only allow known software to run. Email: robert.rutherford@quostar.com Web: www.quostar.com/legal
cyber security
Cyber Crime: A Ticking Timebomb 2015 IS THE YEAR THAT LAW FIRMS, BOTH LARGE AND SMALL NEED TO ADDRESS THE EVER-GROWING THREAT OF CYBER CRIME. HACKERS ARE ALREADY TARGETING LAW FIRMS, AND THIS IS NOT BY ACCIDENT. CYBER CRIMINALS ARE FULLY AWARE OF THE VALUABLE DATA AND MONIES THAT PASS THROUGH A SOLICITOR’S SYSTEM AND ARE TARGETING THEIR VULNERABILITIES. THE REALITY FOR LAW FIRMS IS THAT IT IS NOT A QUESTION OF IF IT WILL HAPPEN, BUT WHEN.
T
he financial costs of a major cyber attack, both in terms of business continuity and reputational damage, are likely to ripple through the industry with the potential for large insurance claims resulting from high value actions against Law firms. As such, Law firms should ask themselves: what are the recent trends in cyber losses and insurance coverage? How have the significant losses transformed cyber into a board issue? What cyber cover do I have? And is there a road map for those who are insured? Ryan Senior, Executive Director, Professional Services Group, Aon added: “No business is immune to cyber crime. Whilst the industry is taking steps to pull together and share information, it still remains that few in the legal profession really fully understand the extent of the threat cyber crime presents to their business. As Law firms continue to hold increasing amounts of client sensitive information electronically on servers that are controlled by third parties, it may be a mistake to assume that the security measures in place provide an impenetrable barrier to those seeking to gain unauthorised access to your systems. The question is whether Law firms are prepared to assure their clients that they are genuinely safe custodians of their valuable information, and if the answer is no, they need to urgently put the necessary security in place.” Clients of law firms are placing more scrutiny on the companies they use and questioning what protective measures they are putting in place to protect their commercially sensitive information. As Ryan adds, “Companies are increasingly requiring their Law firms to provide not only the reassurance that their information is safe, but that they can show an
understanding of what the threats are as well as the protective measures they have put in place. This is where your insurer and your insurance broker should be working with you to demonstrate their thought leadership and guidance on the emerging exposures and coverage issues. As part of this, Law firms will need to build a security model into their business model design, that is seamlessly integrated into every device at every layer to provide that reassurance.” When discussing Cyber Liability Cover with your insurance carrier, it is important to know whether the cover they offer includes first party and third party coverage, loss or damage to digital assets, business interruption from network down time, cyber extortion, theft of money or digital assets as well as security and privacy breaches, investigation costs following a breach, customer notification costs and loss of third party data. It is also worth looking at the ‘service offering’ that comes with a cyber policy. This gives the insured a response plan in the event of a breach (24/7), including access to IT forensic security specialists, PR consultants and legal experts etc, (which, subject to the terms and conditions, should be covered under your policy). Ideally, there is only one number to call and these specialists will work with the firm to make sure they respond to incidents as soon as possible. Time is critical with all potential cyber security
breaches. It may help to mitigate any 3rd party liability if you act quickly and decisively in such circumstances. Something firms should be mindful of when reviewing cyber insurance are the exclusions in the policy wording. Policies may exclude cover for patents, trade secrets, refunds owed by the breached entity and liquidated damages, known network security vulnerabilities and unencrypted devices such as laptops, tablets and mobile phones. The reality, to all involved in the field of cyber crime, is that companies struggle to stay ahead of the game. Hackers have the advantage of growing with technology and being adept at quickly adapting to new products, infiltrating companies and being invisible. However, Law firms do have the choice to better secure their clients’ information. Knowing the challenges Law firms face and the associated risks, those who ignore the fast paced growth of cyber threat do so that their own peril. With ever-greater client, Government and regulatory expectations, now is the time to act.
The Bill of Middlesex 31
FILM and the LAW simply end up buying products or services we neither want nor need. If we are unlucky we could end up in jail.
FILM and the LAW No 27 by VINCENT MCGRATH vmfilmnite@googlemail.com 020 8579 5330 07877 551442
1984 & All that... There are few novels if any, that precipitated the birth of not just one but two highly successful television series. It is not without significance that Big Brother and Room 101 are television shows given that the original book 1984 features a two way screen that not only broadcasts information to the nation but also ensures constant surveillance of its people. This ubiquitous contraption, called a TELESCREEN was invented in 1949 by the author George Orwell as he laboured over his George Orwell prescient masterpiece 1984 on the shores of a windswept Scottish isle. Born Eric Blair the great-grandson of a rich slave owner who was compensated by the British Government upon Abolition of the trade, to such a degree that the family became even richer. Thus the young Eric became the beneficiary of a private education, and developed an interest in poetry but quickly discovered, that he had nothing to say. Consequently he moved to Paris to live among the poor, changing his name to accompany this downward transition. The result Down and Out in Paris and London, not only launched his writing career, but it also became his political salvation. If an Etonian education can produce a George Orwell, then I might be a little more favourably disposed towards the current bunch of Old Etonians that constitute the majority of the cabinet. Who knows they could all be in for a Damascene moment and overnight they might start looking at the world through the eyes of the poor & the oppressed - just like their famous aluminus whose reputation will certainly eclipse theirs whether the latter manages to balance the books through austerity or not. 1984 foretells the future in a fictional country called Oceania, which is controlled by The Brotherhood Party, under the leadership of Big Brother, who kicks off each day on the TELESCREEN with two minutes of hate depicting instances of thought crime - something a bit like a forerunner of The Jeremy Kyle Show. The Thought Police detect thought crime, along with Sex Crime and Face Crime via surveillance on the TELESCREEN. Also against the Law is OLDSPEAK ( what we speak) which has been replaced by NEWSPEAK (eg Ungood in place of BAD). Two dissidents Julia and Winston fall in love and have sex. Whilst love is against the law sex is allowed as long as it to procreate for the party. That being said
any orgasm is definitely off-limits. Their sad story consists of a short period of clandestine joy followed by torture and betrayal in ROOM 101. Sometimes they threaten you with something. Something you can’t stand up to. Can’t even think about. Then you say,”don’t do it to me Do it to somebody else. Do it to…………...”
Films to check out based upon 1984: The BBC’s 1954 legendary version which I missed because My Dad was still looking into renting a “set” from Radio Rentals. This TVplay shot in one take and fortuitously recorded on telecine was very controversial due to the violent scenes in Room 101. There were Questions in the House about subversive themes, and even more fortuitously the telecine recording is kept safe in a film vault. Incidentally, It is generally considered to be a television masterpiece. Then it’s a critical toss up between the Hollywood 1956 version and the British 1984 one (yes a 1984 version of 1984). Both of these are conveniently available in their entirety on UTube. The world is your oyster! Paul Greengrass of The Bourne franchise fame has a new version in pre-production. One wonders if he will persist with his hallmark verite style which was pioneered by Peter Watkins in his 1960’s War Game.
1984 (1956)
HOW WE CONSENT TO SURVEILLANCE. After the revelations made by the American information analyst Edward Snowden, about the operations of the US security agency (NSA) and of the UK’s equivalent (GCHQ), many have claimed that we live in a present that closely resembles the nightmare scenario of 1984. None of us would wilfully accept having our personal details controlled by state authorities. But we frequently accept online consent forms that allow companies like Facebook and Google to store enormous amounts of information about our everyday interactions, allowing them to use the data to conduct sophisticated market research and wage targeted advertising campaigns that aim at micro niches of consumers. This is the pact with devil that we have struck with the digital corporations. What we did not realise was that this arrangement with corporations would also be one with state security agencies, which want to use our data for very different reasons.We are exposed to surveillance precisely by virtue of our choices - or better by virtue of our illusory choices such as acceptance that we expressed when we press the “yes” button to accept a digital service’s terms and conditions. We have become the consenting surveilled. If we are lucky we
Edward Snowden
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Those of you who have seen the documentary CITIZEN FOUR (2014) - consisting of an interview with Ed Snowden when he was on the run in Hong Kong, will recall the gasp from the cinema audience when he declared that GCHQ was far more free and easy in the way it stored and used data it downloaded from the digital corporations than its US equivalent NSA. Now that is bound to make you sleep easy in your beds tonight. Won’t it just? It will be interesting to see what Oliver Stone makes of the story when his feature SNOWDEN comes out shortly.
As I have mentioned in previous Film & the Law articles, there is a stunning stage version that must not be missed. It is currently on at The Playhouse Theatre,on the Embankment , but it won’t Be on much longer, so get along NOW. I must say I only have one reservation concerning his peep into the future and that is he failed to make a connection between the collapse of the Legal System with the cuts in Legal Aid. That being said, he only completed the book in 1949 which was the very same year that Legal Aid was established by statute so it is perhaps asking a bit too much of him, prophetic though he was. But what a great headline the tabloids could have had. CUTS IN LEGAL AID THE CAUSE OF DYSTOPIA UK. Remember it is not just Big Brother that’s watching you. There’s also, America’s NSA, our very own GCHQ, and …… etc. Nighty Night! Sweet Dreams! REFERENCE: The Consent of the Surveilled by Dr Paulo Gerbaudo Kings College London.
FILM NITE at SOHOHOUSE stars up again on 6th October 2015.
GCHQ building
book reviews
365 DAILY ADVOCACY TIPS by Leslie Cuthbert BLOOMSBURY ISBN: 978 1 78043 832 0 www.bloomsburyprofessional.com
AND FOR THE LEAP YEAR TIP… BUY THIS FASCINATING BOOK ON ADVOCACY HINTS! An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Yes, this superb little pocket book by Leslie Cuthbert entitled “365 Daily Advocacy Tips” is published by Bloomsbury Professional and gives advocates (solicitors and barristers) across all legal fields some well thoughtout, useful and effective practical tips on the advocacy skills needed for 21st century. These special skills have been honed down, developing over the years to suit the changes in style and judicial attitudes of the day. The book includes the impact of psychology - quite important as any reader and analyst of English Literature will know - to enable practitioners to be more confident in the way one advocates now, and to be of relevance to current practice in 2015 with all the mistakes of the past firmly behind us. “365 Daily Advocacy Tips” is undoubtedly a text for all advocates, from the beginner just out of law school to the experienced (or think they are experienced) practitioner. We feel having read this book that people in many walks of life, not just lawyers, can benefit from the tips whether involved in civil, criminal or other proceedings especially with the growth of litigants in person in the post ‘legal aid for all’ era. As the author says, the tips are non-jurisdiction specific and so they are relevant to advocates all over the world, including our rather brash colleagues in the North American continent! The content of the book covers a range of helpful quotes, points from psychology and of course best practice points to gain the requisite brownie points with the judge. Cuthbert has included brief snippets of useful information giving as wide a range of interesting pointers and hints as possible which will give us all a few ideas about how to tackle some of the more hideously difficult
cases. Unlike most books about advocacy, this one provides useful insight into psychology which is often overlooked, and it also explains how to break down the rules of argument and rhetoric which is a good discipline to adopt early on in your practice. One other constructive observation is the coverage of acronyms to help remember techniques (a good training device), useful quotes from history and literature which can be used in cases (but don’t bore the judge) and references to other texts both legal and non-legal which makes the book more than just a guide for the lawyer advocate. Politicians might also find it helpful! One of our contemporary expert advocates who are established as seriously good in court is Iain Morley QC. He is well quoted when he writes in favour of these tips saying: "this book is a good idea… what I like is there will be one idea every day - and only one. Your mind will not get jumbled. Think on what you read... some ideas you will like. Others may not work for you. With advocacy, this is always the way. But the point is to try things out - one day at a time." One can see from Iain’s seminal work “The Devil's Advocate” now in a third edition from Sweet and Maxwell of such sage advice for modern practice. The advocacy suggestions given throughout are rightly described as “packed with pithy, serious, amusing, and thought-provoking tips for each day of the year, from a refreshingly diverse range of sources” and of course, it is the originality of the advocate’s approach that can make a profound difference to the outcome of a case. What we liked in particular was that the tips give a fascinating insight into the principles of good advocacy whilst offering essential practical knowledge of related topics such as how people make decisions, indicators of credibility and the 'rules' of argument and rhetoric. And unlike many advocacy guides “365 Daily Advocacy Tips” gives a refreshing insight into this world of psychology and how to break down the rules of argument and rhetoric so you can succeed with your approach. It offers most suitable acronyms to help one remember techniques with useful quotes. Lengthy and studious volumes of advocacy have had their place and they don’t feature much in the ‘teaching’ of advocacy if it can, indeed be taught, but once in a while just a morsel of advice might be needed to change an entire day's work
and this is where it might be found. Cuthbert’s list is a calendar of tales and tips from the world of advocacy and it does prove an able companion for every advocate serious about continuous and incremental improvement in their knowledge, skill and practice with the added bonus of plenty of space to jot down your own ideas throughout the book. We can give you some examples taken directly from the book without spoiling it for those readers new to advocacy: when questioning always remember to KISS: “Keep it Short and Simple”; and in Cross-Examination (XX) aim to TELL the witness the answer you want rather than ASK for a response such as "you were at home, correct?" not "were you at home?"- see the subtle or not so subtle difference; and never forget that correlation does not equal causation as the author points out. Some common sense points are also explored: do not read out the entirety of your argument (in other words written down as it doesn’t work and remember your delivery!) or seek to memorize the totality of what you wish to convey (because that doesn’t work either). The author mentions that a common helpful approach is to remember the introduction and the last paragraph which is a basic structural point: "begin with the end in mind" is a useful concept to focus upon. Absolutely right! Other sensible guidance includes: how the advocate should dress (outside formal robing) and how to present oneself which can be an incredibly important factor even in 2015 after years of sloppy dressing however ones feels about this. And remember the nature of the judiciary itself as one judge has put it: "the burden of proof is on the advocate in the polyester suit!" Hm! But please do not think that this is some sort of sartorial snobbery- it isn’t, it’s merely a practicality in reality… and that is why Cuthbert’s book is an exercise in reality and how to win in 2015… getting the book is tip 366.
CIVIL COURT SERVICE 2015 General Editor: District Judge Graeme
Smith and a team of contributors Includes a CD Jordan Publishing ISBN: 978 1 78473 058 1 www.jordanpublishing.co.uk
GOOD NEWS FOR “BROWN BOOK” PRACTITIONERS: THE ‘NEW CIVIL COURT SERVICE 2015’ IS OUT NOW. An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
In this 800th anniversary year of Magna Carta, ‘what,’ asks General Editor Graeme Smith, ‘would King John and the barons have made of today’s civil justice system?’ If there’s an answer to that, it would probably be that they’d need “The Brown Book”. Well, actually, the barons would. King John was most probably illiterate. This new edition reflects the latest amendments to the CPR, which indicate its continuing state of change. There are amendments to reflect case law… to incorporate new legislation… and to incorporate new European regulations and amended European regulations. There is a new Part incorporating the remaining rules of the High and County Courts. Other amendments, the RTA Protocol, for example reflect changes in policy or practice which are most welcome.
Once again Jordan’s has published its new edition of the Civil Court Service 2015, widely known and appreciated as ‘The Brown Book.’ At the time of its publication at around Easter of this year it was regarded as the most up to date statement on main civil jurisdiction practice.
Logically organized with the needs of the practitioner in mind, the editors and contributors have introduced a new style of introduction for the Parts of the Rules most frequently referred to. This, for example, includes an overview of the Part, a list of the relevant Principal Forms, a summary of significant recent developments and more.
As it has appeared annually since 1999, this in itself is a testament to the high regard in which it is held by practitioners. Publishing annually is of course a dire necessity in view of the relentless tide of changes constantly emerging within the civil justice system.
Another change implemented in response to reader demand is that the Courts Directory, now online and therefore omitted from the previous edition, has now been reinstated in this new one, following quite sensible suggestions that practitioners do need to have this
information available in a work of reference as well as online. (Would that other institutions and/or publications would take this responsive and enlightened view.) Certainly this volume of more than 3,300 pages is an invaluable reference resource, containing tables of statutes, statutory instruments, cases and practice directions. There is a detailed index at the back and - this is handy - a Civil Procedure Rules Quick Finder on the inside back cover. Also attached to the back cover is a CD-ROM. Note too, the ‘stop press’ insert listing the latest developments on fees. We as practitioners are grateful - believe us - for this excellent service - reliable, current and unarguably speedy - provided by this new ‘Civil Court Service.’ Every practitioner needing to stay up to date with developments within the civil jurisdiction should acquire a copy.
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book reviews
BEYOND MAGNA CARTA A Constitution for the United Kingdom by Andrew Blick Hart Publishing Bloomsbury Publishing plc ISBN: 978 1 84946 309 6 www.hartpub.co.uk
ARE WE REALLY ‘BEYOND MAGNA CARTA’? CONSIDERING THE CASE FOR A WRITTEN UK CONSTITUTION An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers In this 800th anniversary year of 2015, there have been almost countless books written about Magna Carta and numerous celebrations to commemorate it on both sides of the Atlantic. With its fierce defiance of tyrannical and repressive rule, this now ancient document continues to inspire controversy and veneration almost in equal measure. It is fortunate, 800 years later, that the influence of Magna Carta continues to prevail, while still generating further controversy and discussion - hence the recent publication of this erudite and fascinating book from the Hart Publishing imprint of Bloomsbury. Unlike most current publications on the subject of Magna Carta, this book places it in its historical context. Taking an almost panoramic view of the past eight centuries, the author Andrew Blick of King’s College, London, considers Magna Carta in the light of the social, political and constitutional developments which have followed it. In so doing, he
constructs a detailed and carefully argued case - as the subtitle indicates - for ‘a constitution for the United Kingdom.’ In case anyone needs reminding, the UK does have a constitution - which is good. But in the view of many, its major flaw (or perpetually annoying disappointment) is that it is not written down, which is - um - not so good. The Americans have a written constitution, complete with amendments implemented from time to time, but in fact difficult to amend. The old Soviet Union certainly had a written constitution which successive dictators cynically ignored. The current Russian constitution, also written down, appears to be alarmingly vulnerable to the whims of whoever holds onto power. In the United Kingdom, an unwritten constitution has been traditionally regarded as more flexible, pragmatic and ultimately fairer for the very reason that it isn’t written down. Instruments known as ‘conventions’ do exist, however which function as mechanisms for change as social mores change. Conventions of the Constitution (which are not effectively binding in perpetuity) offer a level of flexibility which the US constitution does not apparently have. Nonetheless, Blick’s arguments in favour of a written constitution are persuasive. In Parts I and II of the book, the reader is taken on a fascinating journey through English - and subsequently UK history, focusing on those documents, (yes many of which were written) which have shaped or influenced UK
constitutional development. In Part III Blick puts forward both the positive and negative case for creating a written constitution and furthermore tackles the practicalities of its actual presentation, including writing style and preamble. The book cannot fail to reveal, however, that there has been little political will to change the status quo and develop a written constitution; otherwise somewhere, sometime in the last 800 years, or notably recently particularly and possibly under Gordon Brown - we would somehow have acquired one. Complex and convoluted arguments aside, the fundamental question regarding a written constitution for the UK pivots on whether it would be a step forward, or a step backward for this nation. The author therefore has created a valuable and meticulously researched study which should be read both by those who favour a written constitution - and those who do not. Either way, the book is a valuable contribution to the corpus of literature and analysis on UK constitutional history. The publication date is cited as at 2015.
ANTI-SOCIAL BEHAVIOUR The New Regime by Anesh Pema & Justin Crossley Jordan Publishing Also available as an eBook ISBN: 978 1 84661 947 2 www.jordanpublishing.co.uk
THE NEW REGIME ON ANTI-SOCIAL BEHAVIOUR EXPERTLY AND CLEARLY EXPLAINED IN PRACTICAL TERMS FOR 2015 An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This important new statement from Jordan Publishing Limited on the changes introduced by the Anti-social Behaviour, Crime and Policing Act 2014 is most welcome for its clarity and expertise from 2015 but will certainly not be an end to Parliamentary intervention in this difficult area of law. The book offers a detailed practical analysis on the new legal framework as we begin a fresh era on how to deal with these essentially community-based problems which were viewed by our Coalition government (2010-2015) before the new Conservative government took office in May 2015.
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The two authors, Anesh Pema and Justin Crossley, have written a highly competent and very helpful guide for all on the new legislation. Their purpose is to provide practical current advice to all those involved in dealing with anti-social behaviour, and also those who act on behalf of people accused of allegedly behaving ‘anti-socially’. Pema and Crossley explain in very clear terms the new procedures and remedies available for lawyers and lay people alike. The methods they use are designed to be as straightforward as possible for those applying for, or defending under the new regime. Of great help, too, are the discussions on the preceding legislation together with the relevant caselaw decided under the old provisions which will assist all in the interpretation of the 2014 Act. There are 13 chapters in the first hundred or so pages. The rest of the book comprises the 8 detailed appendices makes up the bulk of the book with a helpful index at the back. We found the practical know-how from these two professional experts on antsocial behaviour very helpful. The coverage of this important area of community law where both criminal and civil jurisdiction unusually coincide concentrates helpfully on the formulation of
protocols and the creation of multiagency working groups to the preparation and presentation of cases in court and handling the matter of breaches. The modified regime on antisocial behaviour is given much needed expert explanatory comment in this new work. It includes important time-saving practical materials such as draft applications, notices and orders, and all the relevant statutory provisions including all the amendments. We welcome the fact that the authors have given us an extra special service here so that we, as lawyers and advisers, have everything available as a short one-stop shop being a well thought out successor to their popular earlier work - “Anti-social behaviour: A Special Bulletin”. Thank you. The law is as stated at 15th April 2015.