Central London Lawyer August 2019 by Benham Publishing Limited

London CENTRAL

LAWYER AUGUST 2019

Thursday 19 September 2019 House Of Commons

NEWLY QUALIFIED SOLICITORS’ CELEBRATION (see page 7)

Inside this issue:

■ Expert Witness Focus ■ Contentious Probate

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Contents 5

President’s Foreword

Westminster & Holborn Events 5-11

Westminster & Holborn Events

Junior Lawyers Division 12 13

Five things they did not teach me at law school about being a trainee... Surrogacy remains a hot topic

WHLS International 14 15

ADVERTISING AND FEATURES EDITOR Anna Woodhams

Visit to Cluj-Napoca, Romania HUGE GATHERING OF EUROPEAN LAWYERS IN LISBON

Members’ Forum 16

DESIGN AND PRODUCTION MANAGER John Barry

Members’ Forum

Movers and Shakers

ACCOUNTS DIRECTOR Joanne Casey

I. Stephanie Boyce Emma Kendall

Professional Risk & Compliance 18 A growing industry Sub Committees 19 CHANGE IN THE MAKING Articles 20 DISPUTE PREVENTION?

MEDIA No. 1641 PUBLISHED AUGUST 2019 © Benham Publishing Ltd. LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Media. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press. Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

Introduction

Further Possibilities for Law Reform

Directory Expert Witness Profiles 21 WHAT MAKES A GOOD EXPERT WITNESS? 22 The science of reconstructuring a

DISCLAIMER

Road Traffic Collision THE SIZE OF THE EVIDENCE BUNDLE IS A KEY COST FACTOR ‘Rip It Up’ The Art of Fire Investigation Japanese Knotweed Litigation and Expert Witness Requirements Assessing malingering, lying and deception for reports

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 members 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.

Software

26 27 29

COVER INFORMATION Houses of Parliament, the venue for the Newly Qualified Solicitors’ Celebration on Thursday 19 Sweptember 2019.

Law-Whiz – Connects Professionals All Round Offer targeted valuable content and experiences

Finance 34

Do YOU have YOUR referral process in place?

Conveyancing 35 37

GCS Title Insurance – Comprehensively Simple The Southall Stench: Developer facing Legal Action over Remediation

Contentious Probate 38

Copy Deadlines Autumn Winter Spring

16th October 2019 29th January 2020 15th April 2020

Members wishing to submit material please send to

cwhlawsoc@gmail.com Editor: Ivan Ho Editorial Board: Coral Hill, Rowan Cope & Suzanna Eames Anyone else wishing to advertise or submit editorial for publication in Central London please contact Anna Woodhams before copy deadline.

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

39 40 42

How changing family dynamics can increase contentious probate proceedings New LEAP App is changing how lawyers manage probate Lomax v Lomax: A case for Early Neutral Evaluation? GUPTA v GUPTA

PI Insurance 43

Renewing your PI for 2019 should be a priority

Book Review 44 45 46

THE SECRET BARRISTER ANDREWS ON CIVIL PROCESSES THE LAW OF INDUSTRIAL ACTION AND TRADE UNION RECOGNITION

Westminister & Holborn Law Society is focussing on improving its presence on Social Media Please follow us on Twitter @CWHLawSociety And LinkedIn https://www.linkedin.com/groups/12087037

CENTRAL LONDON LAWYER 3

Introduction

The

President’s Foreword

August 2019

Welcome to the summer edition of The Central London Lawyer.

t has been another busy quarter with events as varied as our seminar on surrogacy and a panel session on judicial appointments arranged by the Junior Lawyers Division and the Education & Training Committee. Our Sub-Committees are a fantastic way to meet members, raise your profile and immerse yourself in the work of the Society, so please do get in touch if you would like more information about them. After the summer holidays, we will continue with our packed agenda of events. All our activities are publicised through our magazine, website and social media pages and I encourage you to follow us on Twitter and LinkedIn to keep up to date with everything that we are doing. In particular, I am delighted to host members at our flagship Newly Qualified Celebration on Thursday 19 September in the Houses of Parliament. We will be awarding our first Rising Star Award for an outstanding trainee solicitor qualifying in 2019, so don’t be shy, make sure your nominations are in before the deadline of Sunday 18 August 2019! I would like to congratulate I. Stephanie Boyce on her appointment to the national Law Society as Deputy Vice President. Stephanie has previously served as the WHLS Honorary Secretary and you can read her profile on our Movers and Shakers page. I also welcome the exchange of views on the role of Council and our Members’ Forum page includes the views of former Council Member, Matthew Allan. I was thrilled to see WHLS named in the Law Society Gazette recently as an example of a “very successful” law society with “active committees”, despite a worrying reduction in the number of other active local law societies SPONSORS

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across the country. I also had the honour of speaking at the Law Society’s Presidents & Secretaries Conference about the work that we are doing to ensure that we are best serving our members in Westminster and Holborn – a number of us attended the conference for local law societies and we have included a summary of all the sessions in this magazine. Continuing to build on our international reputation has never been so important and we are now working on a formal twinning arrangement with the Paris Bar Association. This edition also includes details of a visit from the Barcelona Bar Association in September, the Federation of European Bar Association’s conference in October and a visit to Cluj-Napoca in Romania planned for next year. Do get in touch if you would like to join the delegations for any of these international activities. I must extend thanks on behalf of the Society to Coral Hill, Ivan Ho, Rowan Cope and Suzanna Eames who comprise our Editorial Committee and ensure that the magazine is full of news and materials of interest to our whole membership. We would be delighted to receive any ideas or articles from members for the next edition. In the meantime, I look forward to seeing you at one of our next events. ■

Laura Uberoi President

Westminster & Holborn News

Daniel Watson

Olivia Longrigg

Katjana Cleasby

Sundev Panesar

Hunters Law LLP

Dawson Cornwell

Farrer and Co.

Edwin Coe

Ambassadors Westminster and Holborn Law Society The Membership Committee has been working on a number of projects, developing the website, communication with members and, in particular, the launch of WHLS Ambassadors.

he role of the ambassador will be to enhance engagement with our firms and other member organisations. So far we have Ambassadors representing Dawson Cornwall, Edwin Coe, Farrers and Hunters. Our aim is to sign up Ambassadors from all our Westminster and Holborn member organisations. Gillian Fielden, the Chair of WHLS Membership Committee, said “I am really impressed with the sign-up and support from the Junior Lawyers Division and looking forward to welcoming more Ambassadors as news spreads. We are asking firms to nominate Ambassadors and encourage participation in the Society’s wideranging programme of events. Ambassadors can also put

forward colleagues for our Gamlen Prize and our new Rising Star Award. Ambassadors can join the Society’s sub-committees and it is a great opportunity to enhance business development skills. The Ambassadors will provide a unique insight into members’ needs which will feed into planning ahead so that the Society can continue its work promoting and supporting the legal profession.” Please Join our Ambassador team For more information or to apply to be your organisation’s Ambassador please email us on cwhlawsoc@gmail.com ■

Laura attending her first Council Meeting with baby Poppy.

Congratulations! M

any congratulations to our President, Laura Uberoi, who had a baby girl, Poppy, on 3 May 2019. It has not slowed Laura down in the slightest in carrying out her Council Member activities or working with enormous enthusiasm on WHLS events.

CENTRAL LONDON LAWYER 5

Westminster & Holborn Events

EVENTS 2019

Booking is essential for all events due to restrictions of space

Thursday 19 September

Newly Qualifieds’ Celebration: House of Commons Reception We are delighted that Keir Starmer MP will kindly host our annual Newly Qualifieds Celebration in the House of Commons and where we will present our inaugural Newly Qualified Award. It will also be an opportunity to meet our visiting delegation from the Barcelona Bar and to hear from our keynote speaker Pat Treacy, Deputy High Court Judge and Senior Partner at Bristows. This event is kindly supported by Lloyds Bank, Chadwick Nott and TM Lewin. WHLS is in discussion with a number of other sponsors and would be delighted to accommodate anyone interested in sponsoring the event. You can book your place here through Eventbrite (discounted tickets for members) https://bit.ly/2FEFL6z We have a limited number of free places for solicitors who qualify at any time during 2019 and you can join this list by emailing cwhlawsoc@gmail.com Once you have registered for your place we will issue you with a formal invitation – you will need to bring this and photographic identification to be admitted to the event.

October (Date TBC)

Junior Lawyers Division Drinks at Davy’s Wine Bar (the Bunghole) The JLD are hosting an informal networking event at Davy’s Wine Bar, Holborn from 6pm for members and non-members. Further details to follow.

Wednesday 2 October

How to make your firm more profitable, Leigh Day Come a long for a series of short workshops on how to make your firm more profitable, including innovative working and billing practices and outsourcing. Workshop leaders including Jeff Gosling of ActionCOACH and Leanne Bentley of Bluebird. The event is kindly hosted by Leigh Day and sponsored by Legal Network London. It will start at 6pm, followed by a reception with refreshments and further details to follow.

November (Date TBC)

Legal Needs Seminar – inquests and Criminal Injuries Compensation Authority and the Westminster Bridge attacks As part of Pro Bono Week running 4-8 November 2019 our Pro Bono & CSR Sub-Committee is running an event regarding the role of pro bono work to support the victims of the Westminster Bridge attacks and to highlight the issues surrounding the lack of legal aid for inquests and the CICA, for example. Guest speakers include Yasmin Waljee, senior counsel at Hogan Lovells who represent some of the victims of the Westminster Bridge attacks. Further details to follow.

November (Date TBC)

The Law Society – meet your council members The launch of the Greater London Forum at Chancery Lane is a great opportunity to hear about the work of The Law Society from staff, network with members of other local law societies and ask questions of your local council members for Holborn (Jonathan Wright and Fraser Whitehead) and Westminster (Beth Forrester, Jeffrey Forrest and Edward Macey-Dare). The event will start at 5.45pm with a series of speakers from The Law Society, including Simon Davis (Vice President) on the plans for his presidential year and members of the policy, international, public affairs and campaigns teams on the latest updates from their work. A reception with refreshments and an opportunity to meet members of other local London law societies and staff from The Law Society will follow at 7pm.

(Date TBC)

Dreamvar – an update Following on from the Dreamvar case, this update will be led by Peter Cousins QC and Peter Dodge. Further details to follow.

2020 Events TO BE PUBLISHED SHORTLY

Tuesday 29 October

AGM Farrer & Co 6pm The President will present her annual report and new Officers will be elected. Do come along to see familiar and new faces – refreshments will follow the meeting.

SAVE THE DATE: ANNUAL DINNER Wednesday 11 March 2020 WHLS and South London Law Society will hold a joint event at the National Liberal Club (no political affiliation) Additional events are under discussion. If you have suggestions or would like to host an event, please contact the committee at cwhlawsoc@gmail.com The website calendar also shows our events www.cwhls.org.uk

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Westminster & Holborn Events

Thursday 19 September 19.00-21.00

Celebrations for Newly Qualified Solicitors Westminster & Holborn Law Society celebrates the newly qualified solicitors in our area in each year. There are a substantial number of free tickets available for solicitors admitted during 2019. We also have guests from a number of different European Bar Associations who will be joining us. We will be announcing the winner of the Rising Star Award at this event, our newly founded award to celebrate the inspirational achievements and hard work of trainee solicitors due to qualify in 2019. Nominations for this Aawrd are currently open. Pat Treacy, partner at Bristows and Deputy High Court Judge will give a short speech to welcome all our guests. To apply for a free ticket please email cwhlawsoc@gmail.com with your name, firm and date of admission. Free tickets are limited, so we recommend that all NQs apply as soon as possible. https://bit.ly/2FEFL6z

CENTRAL LONDON LAWYER 7

Westminster & Holborn Events

Presidents’ and Secretaries’ conference 2019 The Presidents’ and Secretaries’ conference brings local law societies together to share their knowledge and discuss their experiences. It is a fantastic conference which aims to engage solicitors and improve the profession as a whole.

his year, four people attended on behalf of WHLS: the current President, Laura Uberoi, the future President, Carolina Pedreno, the current Secretary, Anisha Birk, and the Chair of the Junior Lawyers Division, Suzanna Eames. The conference was opened with multiple updates on the Law Society’s work throughout the year. Christina Blacklaws, the President of the Law Society, gave a powerful talk on the progress which had been made in relation to Women in Law; although women make up 50.2% of practising certificate holders, only 28% of partners in private practice are women. We must now focus on supporting those who are rising up through the profession, and ensuring that the system does not put barriers in their way to prevent them from reaching the top. Christina also set out the multitude of problems in our criminal justice system. Years of under-investment in our criminal justice system has led to a deficient system which is not fit for purpose. It is a damning indictment of the current system that there are so few criminal solicitors choosing to join the profession that there are counties in England and Wales where there is not a single duty solicitor under the age of 35. The current system has only managed to continue for so long because it is reliant on our profession’s goodwill and our desire to seek justice. It is clear that this cannot continue without causing irreparable damage to our entire profession.

Presidents’ and Secretaries’ conference this year, it is clear that the Law Society has realised just how much untapped potential there is in junior lawyers. When discussing how to attract and retain members, the consensus at the conference was that junior members are key. By including junior members at an early stage, local law societies can demonstrate their value by helping members enhance their careers and by providing them with valuable leadership skills which junior members have few other opportunities to gain. Junior members then remain involved in the society as they advance in their career, choosing to give back because they recognise and understand the value of their local law society. There were also discussions throughout the day about how best to engage with members to identify what people care about and which issues to champion, the importance of putting together a long term strategic plan in place in terms of managing cash flow and resources, and the benefits of an online digital magazine and building connections with local businesses to help facilitate events. This is a time of growth for the Westminster and Holborn Law Society. We are campaigning for the issues that matter to our members, providing opportunities for professional development and networking, and organising more social events to create connections between lawyers within our remit. This conference has shown that there is lots to be done for enthusiastic members, and there are opportunities at every stage. ■

The remainder of the conference was then made up of multiple break-out sessions, all of which seemed to focus on junior lawyers in some form or another, although perhaps I’m biased! As Chair of the WHLS JLD, I am constantly advocating the Suzanna Eames importance of junior lawyers to a society; junior lawyers come Chair of the Westminster and Holborn Law Society Junior with new ideas, fresh viewpoints, and invigorating passion for a Lawyers Division society. They are at the beginning of their career, with enthusiasm and willingness to attend events and contribute ideas. From the

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Westminster & Holborn Events

Walk for Justice with Walk the Thames, or Legal Walkies The sunny London Legal Walk may seem like a distant memory, but there are plenty of fun upcoming fundraising events happening soon in the capital that you can get involved with. Surely the cutest of all the fundraising events, Legal Walkies, is back by popular demand this year on September 21st.

reenwich Park will be filled with four-legged fundraisers and their owners taking on a sponsored 5km walk, to raise vital funds for the London Legal Support Trust. The event finishes in a nearby dog-friendly pub and is a guaranteed great morning out wagging tails all round!

As well as being enjoyable days out, all of the fundraising from these wonderful events helps to support the vital work of free legal advice agencies in London and the South East. All of the funds raised enable advice agencies to continue their work helping the most vulnerable people in our society to access justice.

If you prefer more of a challenge, why not join hundreds from the legal sector on October 19th for Walk the Thames? You can sign up as a team or as an individual. Characterised by its beautiful route along the Thames, the Walk is a fantastic event for both runners and walkers; you can choose to challenge yourself to either a marathon or a half marathon. Starting from Norton Rose Fulbright offices near London Bridge, the route follows the Thames past many iconic landmarks, to the halfway mark at Putney where morning half marathoners finish, and afternoon half marathoners start. In the evening, you can enjoy a well-deserved rest and refreshment at Hampton Court.

This is a time of growth for the Westminster and Holborn Law Society. We are campaigning for the issues that matter to our members, providing opportunities for professional development and networking, and organising more social events to create connections between lawyers within our remit. This conference has shown that there is lots to be done for enthusiastic members, and there are opportunities at every stage. â&#x2013; Find out more and sign up to an upcoming event at: tinyurl.com/LLSTevents19. CENTRAL LONDON LAWYER 9

Solicitors Benevolence Association

Why Male solicitors should reach out for help You may have heard the notion of men being more reluctant than women to ask for help. This can be especially true in terms of mental health.

dversity is a fact of life for all of us, regardless of your job or gender. Yet reports show that women are often more comfortable with reaching out for support than men. This is clearly demonstrated within the legal profession. Last year, more women reached out to SBA The Solicitors’ Charity for help during times of financial hardship. Female beneficiaries outnumbered males by 61% to 39%. Yet, women make up 48% of all lawyers in law firms. For many men, there are social expectations that can make life much harder when things go wrong. Notably the misconception that asking for a helping hand is a sign of weakness. Men who are struggling to cope might see value in putting on a brave face and ‘toughing it out’. After all, self-reliance can give you the feeling of accomplishment and confidence in figuring something out for yourself. Reluctance within the legal profession Working in the legal profession may have an extra obstacle. Solicitors spend their working lives helping others and strive to be the best they can be. There is often a fear that receiving aid could undermine everything you have worked so hard to achieve. Elizabeth Rimmer, CEO of LawCare Ltd said: “Many legal professionals are reluctant to talk openly about mental health in work, for fear they may be perceived as weak or not coping with the demands of their role.” Why you should ask for support in times of need Self-reliance can seem appealing, but what happens when problems seem too big? What if emotional and money worries escalate and you can’t deal with them alone?

Acting sooner rather than later can stop smaller problems becoming a crisis and landing you in hotter water. It can prevent issues spiralling and affecting your career, relationships and other areas of life. Reaching out is a sign of strength not a weakness. Despite the misconceptions, this is notably true for men. For some, picking up the phone may feel like uncharted territory. But the right assistance can make all the difference in turning your life around. If you’re a solicitor (or a dependent of a solicitor) and in need of financial or emotional aid, help is available. Your profession’s charities are here for non-judgemental support. Get in touch for an informal and confidential chat. ■

SBA The Solicitors’ Charity • Helps with career transition and financial support through loans and outright grants. • 020 8675 6440 • sec@sba.org.uk

LawCare Ltd • Helps with wellbeing support in the legal community. • 0800 279 6888 • support@lawcare.org.uk

SBA brings the pink and white to the London Legal Walk A 28-strong SBA team was out in full force this week at the London Legal Walk offering walkers a host of goodies to take away with them and telling as many people as possible about the SBA’s work and how it can help solicitors and their families in times of need.

Vauxhall Bridge. ‘Parks’ took a long loop through Green Park, St James’s and Hyde Park, returning via The Mall and Strand.

Walkers followed one of two routes. ‘River and bridges’ crossed the Thames at Blackfriars, and went along the south bank to

Newly-appointed SBA CEO Nick Gallagher said: “The London Legal Walk was the perfect opportunity for us to ensure solicitors are aware of the support the SBA offers whilst enjoying a fun atmosphere and taking away our goody bags and free popcorn. The whole SBA team had a great day and the weather was perfect”. ■

he walk itself saw a record 15,000 walkers from 886 registered teams complete the 10-kilometre fundraising event, which started at the Law Society and right by the SBA’s stand on Carey Street. We gave away 1,000 portions of popcorn in just over an hour and 500 goody bags full of things we hope everyone will find useful.

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Events Westminster & HolbornHeader

How to Session:

QC and Judicial Appointments Despite government funded programs to try to increase diversity within the judiciary, nonbarrister representation among court judges decreased by 3% between 2015 and 2019.

s at 1 April 2019, just a third of court judges were solicitors or legal executives, and figures are lower in some judicial areas. For example, 13% of circuit judges and 6% of recorders were not barristers prior to appointment. This is a balance which should be addressed. Solicitors bring a wide of range of skills to the judiciary, such as highly developed interpersonal skills and a deep understanding of the difficulties clients face when dealing with the court system before their case comes to court. As the number of litigants in persons increase, judges will need to be able to support and manage their presence in the courtroom, and solicitors are perfectly suited to have developed these necessary skills. The Westminster and Holborn Law Society event on how to become a Solicitor QC or appointed to the judiciary was held with the aim of educating solicitors who were interested in applying for these hard-fought places. The event was completely sold out, demonstrating the clear interest from our profession in becoming both QCs and appointed to the bench. The speakers brought a wide range of top-quality information. Lucy Scott-Moncrief CBE, a former member of the QC Appointments Panel and President of the Law Society talked about the application process in detail, encouraging applicants to use their strongest examples and to talk clearly and confidently

about their strengths. Sarah Lee, solicitor commissioner of the Judicial Appointments Commission and Head of the Disputes Resolution Group at Slaughter & May, expanded further on this and spoke about how to overcome problems which are unique to solicitors. Tan Ikram, Deputy Senior District Judge (Chief Magistrate) gave a very engaging and down-to-earth speech about his route into the judiciary and his role today. It was clear from the speakers that there is no substitute for judicial experience, but there are far more opportunities to gain this experience than you might think. For example, it was fascinating to hear that Tanâ&#x20AC;&#x2122;s first judicial experience was as a parking adjudicator! It was also interesting to hear judges speak about gaining knowledge in fields which were not their own; as long as you are willing to put the work in to learn the law in that area, there is no reason why you should be limited to your speciality. Due to the popularity and high quality of this event, Westminster and Holborn Law Society will hold another event on how to become a QC or on the judiciary in the future. Please send an email to cwhlawsoc@gmail.com if you are interested in attending, and we will get in touch when the next event is being organised. CENTRAL LONDON LAWYER 11

JLD - Junior Lawyers Division

Five things they did not teach me at law school about being a trainee… 1. Your training contract can feel like a two-year job interview Getting your training contract is both a massive achievement and a huge relief. Having survived psychometric testing, interviews, open days and (painfully long) law school exams, it is easy to feel like that is the end of all the assessments. Once I started my training contract, I soon realised that the race was not over by any means. It was hard to get used to the feeling of being constantly assessed, trying to fit in with a new team each time, and taking constructive criticism on the chin in regular midseat and end of seat appraisals. I often found myself suffering from ‘imposter syndrome’ and questioning whether I was even good enough to be a lawyer. Two years later, my main take away would be to remember everyone has gone through the same process. No one is expecting you to be perfect all the time – mistakes are an unavoidable part of the learning curve, and half the time, demonstrating enthusiasm is just as, if not more important, than knowing the law inside out. 2. You will start measuring everything in six-minute units… Ok, maybe a slight exaggeration, but recording (almost) every second of your working day was something that took me a while to get used to. Though my firm is kind enough not to give trainees hour targets, I still found myself worrying about how much time I was spending on certain tasks, and this ‘time stress’ began to transfer into my life outside of work. Though it can feel like you are constantly ‘on the clock’, it is important to remember that breaks can actually make you more productive. On days when I feel like I am flagging or stressing about a particular task, going for a quick walk (or “lap”, as they are known to my particular trainee intake) around the park can set me back on track. If you too find yourself feeling the pressure, another top tip would be to try ‘mindfulness’. Just five or ten minutes of meditation a day has been shown to relieve stress, improve concentration and help you sleep better. Unsurprisingly, it is proving to be very popular with lawyers. The Mindfulness in Law Group run free monthly sessions at the Law Society for lawyers at all stages of their careers (see their page on Linkedin, Instagram and Twitter for details of how to sign up) 3.Annual leave is there for a reason: take it. This seems like an obvious one, but it’s all too easy to forget to take time off when you are constantly moving around seats and trying to impress each team. In the same way that taking time out in your day can make you more productive, taking holiday is essential in avoiding burnout.

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Try to be strict with yourself and avoid checking your work phone/emails. If you do have to look at your phone, look at it maybe once a day in the evening and hide it away the rest of the time. A top tip would be to take your holiday in the last or the first week of each new seat, as it makes handover much easier. 4. You will not get to try out every seat you ever wanted Many of us are won over by flashy graduate recruitment websites and their promises of a wide range of seats. I mistakenly thought that, with all the different choices available at my firm, I’d somehow be able to manoeuvre things in a way that I got every single seat I wanted. From my experience (and the experiences of my friends at other firms) this is hardly ever the case. Having said that, it is a blessing in disguise. Being forced to try out areas of law that you wouldn’t have otherwise considered makes you more adaptable and, ultimately, a better lawyer. At the very least, you will form connections around the firm that may be useful for when you qualify (e.g. when you are trying to advise a pro bono client who is about to get evicted from their house, a good relationship with the property team may well come in handy…). And you never know… something you may have thought you would hate may turn out to be the one practice area you end up qualifying into. Don’t knock anything until you’ve tried it. 5. You are not just a trainee, you are also a… PA, actor, cake deliverer, tour guide, Christmas elf… etc At my firm, at any rate, the role of trainee is far broader than just assisting with the law. During the last two years, I have had to take on all of the above roles at some point, not to mention having to organise countless CSR, pro bono and business development events. Whilst, at times, you can (/will) feel that this was not what you signed up for, my best advice would be to embrace it all. Run that 10k, play in that netball match, hand out those canapés… they are all excellent ways to meet people around the firm, and you will probably miss these random ‘trainee tasks’ in a few years’ time.■

This piece was written by a member of the WHLS Junior Lawyers Division who wishes to remain anonymous.

JLD - Junior Lawyers Division

Surrogacy Remains a Hot Topic On 28 March 2019, the Junior Lawyers’ Division of the Westminster and Holborn Law Society organised a seminar on the issues surrounding surrogacy, followed by a drinks reception. The event was hosted by Dawson Cornwell at their new offices in Staple Inn.

he panel was made up of a distinguished set of speakers: Colin Rogerson from Dawson Cornwell, talking about domestic and international surrogacy law; Kathleen Heycock from Farrer & Co, talking about parents’ employment rights in surrogacy situations; and Allan Briddock from One Pump Court Chambers, talking about immigration and international issues in surrogacy situations. The JLD chose to organise a seminar on this topic as surrogacy is a rapidly expanding area, both in the UK and internationally. We wanted to explore how the law surrounding surrogacy provides for children born of surrogate mothers and their parents, and how the law will adapt to a future where there will be an ever-growing number of surrogate parents and children. The legal and ethical complexities surrounding the topic are manifold. Together the panel explored the topic of surrogacy from a variety of different angles and answered the numerous questions asked by members of the audience. The seminar was very well attended, with guests from a number of law firms around the area, as well as from law schools and universities. We were happy to see lawyers and students interested in a range of different areas of law attending this seminar. ■ By Olivia Longrigg and Rowan Cope (joint educational events representatives for the Westminster and Holborn Law Society Junior Lawyers Division) CENTRAL LONDON LAWYER 13

WHLS International

Visit to Cluj-Napoca, Romania

In the summer 2018, we hosted lawyers from the Bar Association of Cluj-Napoca. We are delighted that they are now offering a return visit for WHLS lawyers.

We are at the early stages of planning but this is proposed for July 2020. The purpose of the visit is to improve liaison, learn about the jurisdiction of Romania and gain an insight into the local culture and tourist sights. The proposed schedule is: 16 July 18.00 - 20.00 Drinks reception for delegates to meet lawyers and students 20.00 - 23.00 Dinner and socialising (Cluj-Napoca) 17 July Tourist visits and socialising Alba-Iulia citadel, Sighișoara citadel, Bran Castle and Sibiu/Brașov (one night stop at Sibiu or Brașov) 18 July Return to Cluj-Napoca. ■

FBE Congresses Coral Hill and Sara Chandler represented WHLS at the Barcelona Congress in May. This covered the Rule of Law and tackled the challenges being experienced across Europe, including the UK. WHLS has been twinned with Barcelona for many years and we look forward to hosting them in September 2019. The next Congress is in Lisbon. Anyone interested in attending is welcome to sign up using the link at the www.FBE.org Do please email cwhlawsoc@gmail.com FAO the International Committee so that we can put you in touch with any other members that may be attending. These trips are all self-funded or you may be able to justify a business case to your firm. ■

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Header WHLS International

HUGE GATHERING OF

EUROPEAN LAWYERS IN LISBON

With the disturbance caused by BREXIT agendas over the last three years, our clients need their legal advisor to establish relations with lawyers all over Europe.

he next Congress of the FBE (Federation of European Bars) will be held in Lisbon from 24 to 26 October 2019. WHLS is a member of the FBE and this means that our members can attend the Congress. By booking flights and accommodation early, you can attend this Congress for a reasonable sum. We recommend taking advantage of the Early Bird rate for the Congress fee.

new concept will be introduced: “A new perspective: The behavioural economics approach” The networking at Congresses is always very good, because the local bar association organizes excellent receptions and dinners. There are also opportunities to get involved in the FBE Commissions where the work is done alongside lawyers from other EU countries. ■

The Congress will be held jointly with the CCBE (Conference of National Bars of Europe) an organization which has delegations from each jurisdiction. This means that there will be a large Check out the FBE website at www.FBE.org number of European lawyers in Lisbon for the Congress. So if you Further information also from have ever thought about the need to get some European sarachandler.lawsociety@gmail.com contacts, now is the time.

The theme of the Congress is: "Self-Regulation & Quality in the Legal Profession". There will be sessions such as “Self- regulation Professor Sara Chandler QC (Hon) Past President CWHLS (City of Westminster & Holborn and proportionality test” during which the new EU directive Law Society), and Past President of the FBE (Federation of 2018/958 and its implications for bar associations will be European Bars) discussed. Delegates will consider the impact on bar associations and Law Societies. There will be a session looking at how different bar associations look at how to assess quality. A

CENTRAL LONDON LAWYER 15

Members’ Forum

Members’ Forum Photo: Matthew Allan

We welcome personal views from members on any subjects of professional interest. Below is a view from Matthew Allan which follows on from the articles by Fraser Whitehead (November publication) and Paul Sharma (May 2019 publication).

was interested to read Paul Sharma’s commentary in the May Central London Lawyer and I wanted to continue investigating the record of The Law Society and it’s Council to see whether Paul’s assessment of it as ‘a fish rotten from the head down’ bore scrutiny. Paul raises several concerns, namely, the influence and mission of the Society, member engagement with the Council and the role of the President. Paul’s article suggests that the Society neglected its duty to solicitors by not acting enough like a trade union in the face of Employment Tribunal changes. He points to Unison and not Chancery Lane championing the legal action against Employment Tribunal fees in 2013. To continue the aquatic analogies, this example is a red herring. It ignores recent examples of the Society actively seeking engagement with government on a host of issues affecting the profession and the public. The ‘legal aid deserts’ campaign, for example, has gained traction with MPs and the press in promoting the damaging effects on the public that cuts have had. I would also argue that the profession is already capable of holding the Council to account. One can recall the mutiny of solicitors in the face of the 2013 legal aid cuts, which nearly claimed the scalp of the then President for perceived inaction. Granted, the Society is not a crusading juggernaut, but I would argue that this is not its function. Solicitors are diverse in their views and professional expertise and it would be inappropriate for a representative body for the whole to prioritise the needs of some. Beyond upholding access to justice and the rule of law the Society steers a largely apolitical course so as not to alienate sections of its membership. The most obvious example of this is the fact that Council has remained neutral on Brexit. During my term on Council, I recall many members taking umbrage with this, but they seemed to forget that the profession, like the country, was divided. Sure, Council commissioned fact-finding reports which it shared with Government and the public, and these reports disproportionately pointed towards the damage Brexit would inflict on the public and the profession, but that was the evidence talking, not Council. The ‘mission’ for Council is fundamentally about stewardship, not political activism. Stewardship of the profession for those practicing now and those who are yet to practice. Access to justice and the rule of law are of paramount concern, and the Society (as directed by Council) strive to uphold these principles through the soft power it can wield. This is evidenced through the manifold ways it engages with MPs and the public. I agree with Fraser that Council requires ‘reenergising and rationalising’ with respect to representation reflecting the changed demographics of the profession. However, I think that Paul is mistaken when he writes of a democratic deficit relating to the election of office holders. The profession votes for their

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representatives, who in turn can stand and vote for the next officer holder. To say that ‘not once do the members [of the profession] vote for any’ of the office holders elected by Council is just not true. Some readers no doubt received their Council voting papers for its annual elections shortly after publication of the last issue. It is hardly a democratic deficit any more than already exists across democracies around the world. Convincing solicitors to stand and vote, however, is a perennial concern and one which can only be overcome by convincing members of the positive impact Council can make. Characterising the Presidential role as ‘amateur’ for only lasting one year is also unreasonable. I appreciate that the holders are not ‘professional’ politicians but they build up experience by first taking on the Deputy Vice Presidential and Vice Presidential years in turn. Their expertise stems from their legal careers and, routinely, significant experience on Council. There is also a permanent Law Society staff who act as an executive and ensure continuity. A five-year presidency will not alter this landscape, engage with the membership any more deeply, nor make the President any more accountable. Although historically the President has been a man, this has also started to shift since the first woman President in 2002. Since then, a quarter have been women, and with I. Stephanie Boyce elected this year, this figure looks set to continue. With 50% of the profession but only 32% of Council members women, the demographic representation Fraser advocates must clearly be implemented, however increasing presidential terms will not address inequalities. The profession will be served best by a Council that supports its members, supports the rule of law and supports access to justice. In order to promote the diverse interests of the profession, Council must be a diverse and engaged representation of its membership. Revision of Council’s constituent parts is overdue.■ by Matthew Allan Solicitor, Sherrards Solicitors LLP Council Member 2015-17 for Trainee Solicitors and LPC Students

Header Movers and Shakers

I. Stephanie Boyce our new Deputy Vice President of The Law Society & Past Hon Secretary of WHLS I. Stephanie Boyce is the Director of Stephanie Boyce Consulting Limited, a consultancy that advises on the management and governance of not-for-profit organisations. Photo: I. Stephanie Boyce

tephanie was admitted as a solicitor in 2002 and has a wealth of experience in corporate governance, regulatory frameworks and professional regulation. Stephanie holds a Master of Laws in public law and global governance from King’s College, University of London. Stephanie has spent most of her career working in complex environments with challenging governance arrangements, from central and local government. She is an experienced General Counsel and Company Secretary who is use to working in complex, multi-stakeholder environments. She has delivered strategic change in those complex environments, bringing clarity to strategic planning and delivering improved legal services and

governance frameworks in difficult financial circumstances. Stephanie has recently been elected to Fellowship of ICSA: The Governance Institute. Stephanie is a Council member of the Law Society of England and Wales representing the Women Lawyers Division, she is the Past Honorary Secretary of the City of Westminster and Holborn Law Society, a solicitor member of the Joint Tribunal Service, a former member of the Law Society's Council Membership Committee for Holborn and Westminster, a former member of the Law Society’s Regulatory Affairs Board, an ex-officio committee member of the Women Lawyers Division and Chair of the Conduct Committee of the Law Society.

Stephanie also sits as an Independent Person to the Standards Committee of her local authority and as a panel member to the Independent Educational Appeals Panel and is a former presenter on the Women Lawyers Division Returners Course. Stephanie has recently been elected as the next Deputy Vice President of the Law Society of England and Wales becoming the Deputy Vice-President in July 2019, Vice President in 2020 and President in 2021. Stephanie will become the representative body’s sixth woman president and its first ethnic minority President. ■

Emma Kendall moves to Fieldfisher Emma Kendall is a specialist medical negligence lawyer who joined Fieldfisher in 2018. Having qualified in 2014, Emma has since gained valuable experience through her practice at leading Claimant law firms.

mma has secured a number of significant settlements on behalf of clients in claims involving General Practitioners, NHS Trusts and private doctors. Emma has also represented bereaved families at inquests into the deaths of their loved ones. Emma acts for clients who have suffered wide-ranging injuries; including birth related injuries, strokes, spinal cord injuries, cardiac injuries, amputations and general surgical injuries. She is

praised by clients for her empathic nature and her handling of delicate and sensitive issues. Emma volunteers with AvMA, a leading patient safety charity. She also sits on the committee of the Association of Women Solicitors as a passionate advocate of equality and diversity across the legal profession. ■

Photo: Emma Kendall

CENTRAL LONDON LAWYER 17

Professional Risk & Compliance

A growing industry Against all expectations, the life of a law firm compliance adviser is never dull. With regulation increasing in volume at a seemingly exponential rate - and not just from the SRA, but the entire spectrum of regulators and government departments - lawyers are now not just legal professionals, but gatekeepers to the legal and financial systems, with responsibility delegated from the state to identify and thwart all manner of potentially nefarious characters.

o whilst some solicitors who take the view that the core of professional ethics doesn’t change much, seeing little need to keep up to date with the current rules applicable to them, I would respectfully say to them that they are entirely wrong. Over the next few issues of this publication, I would like to take the opportunity to share a few stories/scenarios from the front line of compliance. I will try to demonstrate that ‘compliance’ as a tool in the modern lawyer’s toolbox, is as important as technical legal ability and client management skills.

it occurred in the UK. With cannabis production for recreational use currently still outlawed here, that makes any money from our Canadian clients ‘criminal property’. It’s worth pausing here to reflect. No crime has taken place. Our clients are legitimate businesses, there is no risk to society. And yet the state tells us that we must now treat our clients as criminals lest we ourselves be punished.

A lawyer in this position is then thrown into the world of ‘suspicious activity reports’ (SARs). These are statutory reports that law firms are obliged to make to the National Crime Agency Take cannabis production as our first example. (NCA) when ‘knowledge or suspicion’ are established. Not to My company works with a London law firm which is instructed by (entirely legal) marijuana producers, mainly based in Canada do so is in itself a criminal offence. So we now have the absurd situation where is obliged, through where production of the drug for recreational use has been threat of incarceration, to snitch on their own clients, thereby legalised. North America generally is softening its approach to cannabis use, resulting in cannabis production as big business. overriding the fundamental principle of lawyer-client confidentiality. They cannot tell the client, ‘we have to report you Accordingly, these producers need regular commercial legal advice. As worldwide demand for legitimately sourced cannabis but bear with us’, because such tipping off is also a crime. increases, many commercial law firms will touch the industry at And next comes perhaps the biggest conundrum. Once you some point. have reported your own client to the NCA for a crime they didn’t You would think that acting for these businesses would be relatively uncontroversial. Apparently not! A firm should identify this whilst developing its anti-money laundering (AML) firm-wide risk assessment (an exercise which itself is a new statutory duty on law firms governed by the Money Laundering Regulations). ‘Where are our AML vulnerabilities?’, you should ask yourself.

commit, what happens if your request to continue to act is declined? The NCA is known to be reluctant to offer up the statutory defence without clear evidence of the ‘criminal property’ in question.

Potentially the lawyer is left in a very difficult situation. Do you continue to act in any event, confident that there is no risk of money laundering but cannot protect yourself if you are wrong? Or bow out, thereby losing the business of a significant client, Now, our AML regime is a strange beast. Not least because the for reasons you are unable to share, knowing that one of your penalties for secondary money laundering offenders - the socalled ‘professional enablers’ - are so harsh. Limitless fines and competitors is likely to pick up the work in any event? That is the unenviable decision that the legislation places on the Money eye-watering sentencing powers face anyone found guilty of Laundering Reporting Officer’s shoulders. helping criminals hide the origins of dirty money. The legislators’ It doesn’t take too much imagination to see that there is lots of logic is reasonable: make it harder on the real offenders by ratcheting up the peril for the gatekeepers. Making lawyers and potential for similar situations arising in other areas of legal practice, simply because what constitutes ‘criminal conduct’ in accountants the eyes and ears of the criminal justice system. the UK does not necessarily translate overseas. Whilst most of us accept that this as an unavoidable response to a rampant societal problem, the regime does often throw up uncomfortable situations and dilemmas for lawyers. This is one. The AML legislation kicks in when we have knowledge or suspicion that a client is handling ‘criminal property’, essentially the ill gotten gains of ‘criminal conduct’.

I would argue that it cannot be right that legitimate businesses and their legal advisers are treated as potential criminals in these circumstances. It undermines access to justice, a lawyer’s practice, and ultimately the attractiveness of the UK as a destination of choice for international business. ■

The problem for our Canadian cannabis farmers is that ‘criminal By Jonathon Bray conduct’, for the purposes of the Proceeds of Crime Act 2002, includes conduct that is legal overseas, but would be illegal had Director www.jonathonbray.com

18 CENTRAL LONDON LAWYER

Sub Committees

CHANGE

IN THE MAKING Diversity in the Legal Profession Ten years ago the Law Society launched the Diversity Charter. Over the years more than 400 firms signed the charter. However, last year the time had come for a comprehensive review

group of the most active firms formed a working group which found that there were better ways to develop diversity and inclusion practice which had progressed during the last decade. Clarity was needed to define how firms could demonstrate their effectiveness in bringing about change. The signatory firms were mostly the largest firms, and in-house legal teams had a procurement protocol which remained separate from the Diversity Charter. Firms reported every two years to a body outside of the Law Society and the Law Society’s team had little involvement. So the 2018 comprehensive review carried out jointly by the Law Society team with the signatories working group recommended a complete overhaul.

Photo: Coral Hill, chair of the Equality, Diversity & inclusion Committee

The new charter comes at a time when there is a higher awareness of the need for change. The International Bar Association (IBA) has recently reported on bullying and sexual harassment in the workplace, and during the last 3 years Law Society President, Christina Blacklaws, has led the campaign for women in leadership in the law. Reports on women’s round tables and men’s round tables have started to circulate, and on 19 June the International Women in the Law Report was launched, entitled: “Advocating for Change: Transforming the future of the legal profession through greater gender equality”, setting the context for a new approach.

How can WHLS members get involved? Past President Coral Hill is launching a new sub- committee on Equality, Diversity and Primary recommendations focussed on data collection and analysis, and demonstration of the effectiveness of organisational Equality. Coral said “I’m delighted to chair this new WHLS Committee. As I was part of Christina Blacklaws Women in Law practices. Clarity was needed on how to achieve the bronze, Core Group, I am really motivated to ensure that change is silver and gold standards. accelerated in the legal profession.’ The changes to the Charter include making the process of Members who wish to join the initiative should contact the assessment more focused across specific diversity categories, e.g. gender; race and ethnicity; disability and wellbeing; LGBT+; secretary to the committee, Kate Brett kb@dawsoncornwell.com and social mobility. The Charter will remain across three levels of We aim to hold our first meeting in the Autumn. Westminster & Holborn is joining the spearhead of the movement achievement; bronze, silver and gold. for change and members can get involved as soon as they wish. The initial application process will be based upon a firm’s All will be welcome. ■ workforce data, which will be supported by a narrative of issues identified by the data provided, together with an action plan for the firm to implement. The process of assessment across each level will include an independent peer review process based on specific criteria, where the review panel members will be drawn from the legal profession. This will in time drive standards as practice improves and expectations for organisational practice become more developed and embedded.

Professor Sara Chandler QC (Hon) Past President CWHLS (City of Westminster & Holborn Law Society), and Past President of the FBE (Federation of European Bars)

The revised Diversity and Inclusion Charter is currently being piloted by 14 firms of varying sizes across the regions. The pilot is a simulation of the whole application process through to submission and requires evidence gathering and action planning. The submission date for completed applications under pilot conditions is 31st October 2019 and peer assessment will take place in November 2019. Feedback will be provided to those firms that submitted a completed application for assessment. Once the pilot bronze level in Gender is complete, it will be followed by race and ethnicity; disability and wellbeing; LGBT+; and social mobility. There will also be more advanced applications in silver and gold standards. As the pilot progresses adjustments for what works well and what not so well will be made. The team will also be developing the application for inhouse teams to use.

Photo: Arthur Weir

Many thanks to Arthur Weir for his dedicated chairing of the Law Reform Committee. Arthur has decided to pass the baton on, so anyone interested in this role should email cwhlawsoc@gmail.com CENTRAL LONDON LAWYER 19

Article

DISPUTE PREVENTION? Future Possibilities for Law Reform An interview with Dr John Sorabji

he subject-matter of the wrongly titled “Alternative Dispute Resolution” or ADR as it is simply known, will receive a wellrecognised renaissance if current plans are developed in the next six months on resolving disputes. For it seems that the professional reality is that the correctly termed “dispute resolution” in all its forms is undergoing substantial change with the gradual introduction of digital processes for claims. Like many, I have fallen into the trap of a misunderstanding of what the “online” courts are really going to be about in the 2020s. They are really “digital processes” for the future. Enter the jovial Dr John Sorabji who spend an unenviable hour at Lincoln’s Inn explaining to me, and our readers, which direction civil justice might now be taking after a decade or so of stalls. John will be well known to many for his work on ADR and for his role as Principal Legal Adviser to the Lord Chief Justice and Master of the Rolls, and his substantial contributions to The White Book and civil practice. Data analytics Speaking purely in his personal capacity, Sorabji explained that the digitisation programmes “are rolling out across England and Wales” and he was “very optimistic that they will be successful”. On the issue of law reform, we talked data analytics and what the MoJ/HMCTS might be able to do with the information it currently holds. “We are moving much more towards the use of data effectively in order to try to increase the prevention of further disputes arising”. This statement immediately caught my attention! But what of the legal profession, surely that means fewer claims, cases and clients? John’s view, based on recent Ombudsman schemes, suggests the possibility of looking at the generic problems which arise specifically from data gleaned in financial services disputes such as the bank charges litigation. The view is that, rather like the NHS issues today, we are talking of “prevention not cure” based on data drawn from cases and what has happened. John remined me that this is not his original thoughts but the research of Professor Chris Hodges on the development of a coherent dispute resolution system. Equity and the common law “What we have today is ADR running in parallel with the traditional court structure”, John reminded me. It conjured up the two streams of justice which England and Wales had developed over centuries, the common law and equity, leading to much-needed reforms from 1873-75 and the pre-eminence of equity.

20 CENTRAL LONDON LAWYER

No work was really lost then, suggests Sorabji. “So, will we lose work today with dispute prevention?” John’s view was an emphatic “no” and legal practice would increase the possibilities for parties to benefit from the new “procedural innovations”. No worries there, then. Continuous Reform We moved, finally, to what are interestingly described as “predictive analytics in the United States and elsewhere”. In other words, the prediction of judicial outcomes (illegal in France, of course) whereby the digital presence, especially in lower value cases, will “set the ball rolling” for a continuous law reform programme rather than the “once in a few centuries reforms” of the Judicature Acts. And that is probably the key to where we are going with our litigation in the next decade. Our parting conclusion was that we are now entering an era of continuous reform which “will evolve as the technologies evolve”. “It will not be another 100 years before we have further reforms” because the aim of all law professionals is the continuing improvement in the rule of law using digitisation, AI, and what Sorabji would probably see as a sensible use of the massive amount of data which the courts now hold digitally on cases. “You know it makes sense” is the inevitable suggestion on what we should do with all this data now it is held electronically rather than in a paper form. A big thank you to Dr Sorabji, for your thoughts as a Senior Teaching Fellow at University College London, where you convene its LLM course on Principles of Civil Justice and the LLM and LLB courses on ADR. It is certainly prevention rather than resolution for the future, and yes, there will still be a lot of work out there for all of us! ■ by Phillip Taylor MBE Barrister at Law and Mediator, Richmond Green Chambers

DIRECTORY – EXPERT WITNESS PROFILES – 10 OF THE BEST!

WHAT MAKES A GOOD EXPERT WITNESS? A good expert witness will add value to a case and

assist the court, through their specialist knowledge. They will use their considerable experience to explain, clarify and enrich the body of evidence and opinion, to the benefit of all parties.

t’s all very well using an expert witness you know personally and can rely on, but what if they can’t complete their work to your deadline, or they don’t have the right specialism? Then you may have to instruct someone based on their reputation alone. So how do you make sure your own reputation is not damaged by a poor expert witness? Make sure they’re a genuine expert Anyone can call themselves an expert. So check their ID, check their qualifications, and check to see if they’re registered with an independent regulatory body. It can help that some professional titles - for example “clinical psychologist” – are protected titles, whilst others – such as “consultant psychologist” – are not protected, so anyone can use them. If applicable, also ask to see a recent DBS (criminal record) check and professional indemnity insurance. Make sure they have the right experience Is the expert right for your case? Would a different expert be more qualified to answer the court’s questions? A good way of checking is to follow the MoJ’s expected standards

for expert witnesses in family law cases - upon which we were consulted - that were introduced in October. As well as covering the above points, it adds that the expert must: • have recent, relevant, and documented experience of the issues of the case • keep up with recent developments in their field • know about relevant data protection and safeguarding concerns • actively seek feedback on their court work • be familiar with practice directions and regulations • clearly show where their opinion lies on the spectrum of mainstream opinion Demand quality Will their report be concise, measured and evidence-based? Being accomplished within their discipline isn’t a guarantee that they’ll be able to write an expert witness report. Ask what checks for quality, accuracy and consistency they might carry out. ■ Supplied by

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CENTRAL LONDON LAWYER 21

DIRECTORY – EXPERT WITNESS PROFILES – 10 OF THE BEST!

The Hampden Consultancy ƵŝůĚŝŶŐ ƐĞƌǀŝĐĞƐ ;ŵĞĐŚĂŶŝĐĂů Θ ĞůĞĐƚƌŝĐĂůͿ ĐŽŶƐƵůƟŶŐ ĞŶŐŝŶĞĞƌƐ Expert witnesses / Expert advisers / Expert assessors ^ŝŶĐĞ ϭϵϵϯ ǁĞ ŚĂǀĞ ƐƉĞĐŝĂůŝƐĞĚ ŝŶ ĂƐƐŝƐƟŶŐ ĐůŝĞŶƚƐ ŝŶ ƌĞƐŽůǀŝŶŐ ƚĞĐŚŶŝĐĂů ĂŶĚ ĐŽŶƚƌĂĐƚƵĂů ƉƌŽďůĞŵƐ ǁŝƚŚ ƌĞƐƉĞĐƚ ƚŽ ŵĞĐŚĂŶŝĐĂů Θ ĞůĞĐƚƌŝĐĂů ĞŶŐŝŶĞĞƌŝŶŐ ƐĞƌǀŝĐĞƐ ƚŚĂƚ ĐĂŶ ;ĂŶĚ ŽŌĞŶ ĚŽ͊Ϳ ŽĐĐƵƌ ŽŶ ŵĂŶǇ ĐŽŶƐƚƌƵĐƟŽŶ ƉƌŽũĞĐƚƐ͕ ǁŚĞƚŚĞƌ ĚƵƌŝŶŐ ƚŚĞ ƉƌĞͲĐŽŶƚƌĂĐƚ Žƌ ĐŽŶƐƚƌƵĐƟŽŶ ƉŚĂƐĞƐ Žƌ ŝŶĚĞĞĚ ƉŽƐƚͲĐŽŶƚƌĂĐƚ͕ ŝŶĐůƵĚŝŶŐ ŵĂŝŶƚĞŶĂŶĐĞ ĂŶĚͬŽƌ ĨĂĐŝůŝƟĞƐ ŵĂŶĂŐĞŵĞŶƚ ŝƐƐƵĞƐ͘ Ɛ ƐƵĐŚ ǁĞ ŚĂǀĞ ŽŌĞŶ ďĞĞŶ ƌĞƚĂŝŶĞĚ ĞŝƚŚĞƌ ĂƐ ĞǆƉĞƌƚ ĂĚǀŝƐĞƌƐ͕ ƉĂƌƚǇͲĂƉƉŽŝŶƚĞĚ ĞǆƉĞƌƚƐ Žƌ ĂƐ ƐŝŶŐůĞ ũŽŝŶƚ ĞǆƉĞƌƚƐ ŝŶ ƌĞƐƉĞĐƚ ƚŽ ĚŝƐƉƵƚĞƐ ďĞƚǁĞĞŶ ďƵŝůĚŝŶŐ ŽǁŶĞƌƐͬĞŶĚͲƵƐĞƌƐ Θ ĐŽŶƚƌĂĐƚŽƌƐ Žƌ ďĞƚǁĞĞŶ ĐŽŶƚƌĂĐƚŽƌƐ Θ ƐƵďͲĐŽŶƚƌĂĐƚŽƌƐ ĐŽŶĐĞƌŶŝŶŐ ƚĞĐŚŶŝĐĂů ĂŶĚͬŽƌ ĐŽŶƚƌĂĐƚƵĂů ĂƐƉĞĐƚƐ ƌĞůĂƚĞĚ ƚŽ ŵĞĐŚĂŶŝĐĂů Θ ĞůĞĐƚƌŝĐĂů ĞŶŐŝŶĞĞƌŝŶŐ ƐĞƌǀŝĐĞƐ͕ ŝŶĐůƵĚŝŶŐ ƚŚĞ ĨŽůůŽǁŝŶŐ͗ • ŝƌͲĐŽŶĚŝƟŽŶŝŶŐ ŝŶƐƚĂůůĂƟŽŶƐ • ŚŝůůĞĚ ǁĂƚĞƌ Θ ĐŽŶĚĞŶƐĞƌ ǁĂƚĞƌ ƐĞƌǀŝĐĞƐ • ,W ; ŽŵďŝŶĞĚ ŚĞĂƚ Θ ƉŽǁĞƌͿ ŝŶƐƚĂůůĂƟŽŶƐ • ĞƐŝŐŶ ĂƵĚŝƚƐ ŽĨ DΘ ĞŶŐŝŶĞĞƌŝŶŐ ƐĞƌǀŝĐĞƐ • ŽŶĚŝƟŽŶ ƐƵƌǀĞǇƐ Θ ƌĞƉŽƌƚƐ • ůĞĐƚƌŝĐĂů ƐŵĂůů ƉŽǁĞƌ Θ ůŝŐŚƟŶŐ ŝŶƐƚĂůůĂƟŽŶƐ • &ŝƌĞ ƐƚŽƉƉŝŶŐ ŽĨ DΘ ĞŶŐŝŶĞĞƌŝŶŐ ƐĞƌǀŝĐĞƐ • 'ĂƐ Θ ŽŝůͲĮƌĞĚ ďŽŝůĞƌ ƉůĂŶƚ ŝŶƐƚĂůůĂƟŽŶƐ • ,ĞĂƟŶŐ ŝŶƐƚĂůůĂƟŽŶƐ • ,ĞĂƚ ƉƵŵƉ ŝŶƐƚĂůůĂƟŽŶƐ • ,Žƚ Θ ĐŽůĚ ǁĂƚĞƌ ƐĞƌǀŝĐĞƐ • DΘ ƐƉĞĐŝĂůŝƐƚ ĞŶŐŝŶĞĞƌŝŶŐ ƐĞƌǀŝĐĞƐ ǁŝƚŚŝŶ ŚĞĂůƚŚĐĂƌĞ ƉƌĞŵŝƐĞƐ • DĂŝŶƚĞŶĂŶĐĞ ŽĨ DΘ ĞŶŐŝŶĞĞƌŝŶŐ ƐĞƌǀŝĐĞƐ

• DĞĐŚĂŶŝĐĂů ǀĞŶƟůĂƟŽŶ ƐǇƐƚĞŵƐ • WŝƉĞǁŽƌŬ ŝŶƐƚĂůůĂƟŽŶƐ • WƌĞƉĂƌĂƟŽŶ ĂŶĚͬŽƌ ĂƉƉůŝĐĂƟŽŶ ŽĨ ĐŽŶƚƌĂĐƚƐ Θ ƐƵďͲĐŽŶƚƌĂĐƚƐ ĨŽƌ DΘ ĞŶŐŝŶĞĞƌŝŶŐ ƐĞƌǀŝĐĞƐ • WƌĞƉĂƌĂƟŽŶ ĂŶĚͬŽƌ ĂƉƉůŝĐĂƟŽŶ ŽĨ ƐƉĞĐŝĮĐĂƟŽŶƐ ĨŽƌ DΘ ĞŶŐŝŶĞĞƌŝŶŐ ƐĞƌǀŝĐĞƐ • WƌŽĨĞƐƐŝŽŶĂů ŶĞŐůŝŐĞŶĐĞ ĐůĂŝŵƐ ŝŶ ƌĞƐƉĞĐƚ ƚŽ DΘ ĐŽŶƐƵůƟŶŐ ĞŶŐŝŶĞĞƌƐ • ^ƚĂƚƵƚŽƌǇ ĂŶĚͬŽƌ ƌĞŐƵůĂƚŽƌǇ ĐŽŵƉůŝĂŶĐĞ ŝƐƐƵĞƐ • tŝƚŶĞƐƐŝŶŐ ŽĨ ƚĞƐƟŶŐ Θ ĐŽŵŵŝƐƐŝŽŶŝŶŐ ŽĨ DΘ ĞŶŐŝŶĞĞƌŝŶŐ ƐĞƌǀŝĐĞƐ • dŚĞ ĂƉƉůŝĐĂƟŽŶ ŽĨ ƚŚĞƌŵĂů ŝŶƐƵůĂƟŽŶ ŝŶ ƌĞƐƉĞĐƚ ƚŽ ŵĞĐŚĂŶŝĐĂů ĞŶŐŝŶĞĞƌŝŶŐ ƐĞƌǀŝĐĞƐ

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ANALY YSIIS R

EXPEERTS IN COLLLISION INVEESTIGATION

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The science of

reconstructing a Road Traffic Collision. Finding an Expert it is sometimes a tricky choice about who to use. How do you know who to trust with a high value catastrophic loss case or a Death by Dangerous Driving matter, after all standing on the steps of the Court would be a bad time to find out you have chosen poorly!

am sure that we have all heard of (or have personal experience of constructing a case around a certain set of parameters) only to find that the Expert has had to concede a number of critical points upon which your case hinged. Why is that so common, and what can you do about it? Firstly, I think it is important to understand where your Expert’s experience is likely to have come from. Typically, Experts in this field come in two distinct categories – Academics or retired experienced Police Officers. The academic route often deals with the complex analysis and mathematical parts of the discipline exceptionally well. Often filled full of research papers and robust discussions of physics, however often a little underwhelming with regards to scene process, evidence and that ‘feel’ for a live collision scene. Alternatively, the Police Officer route, with an understanding of live collision scene that is unparalleled, a strong knowledge of the law, and a confidence in giving live evidence, but perhaps a little vague when it comes to propping up their opinion with cutting edge research or mathematical modelling. But, what if you didn’t have to choose and could actually have both? There is a huge strength in an Expert who has not only been at the scene of countless road traffic collisions, responsible for the collection of the evidence and also the same person who has written the academic papers that support the advancements of knowledge in the field. That is exactly what FCIR pride themselves upon! We have those Experts that can demonstrate that not only have they ‘seen that happen in real life’, they have also published the academic material that is now being taught to Collision Investigators in the field. This is what sets FCIR apart. But it doesn’t stop there, with the advancement in vehicle-based technology marching on at a rate faster than ever, the role of a Collision Investigator is moving away from the conventional measurement of skid marks, to interrogating vehicle airbag modules. Measuring the locus of a collision is less about the use of a tape measure and more about state of the art 3D laser scanning. Demonstrating complex collisions to a Court is less about explaining with toy cars and diagrams and more about 3D animations. CCTV has advanced leaps-and-bounds from the simple, ‘say what you see’ approach to the forensic analysis down to the millisecond – FCIR have specialist equipment to allow for such and analysis – indeed they we were instrumental in the development of the Home Office equipment used by the Police. When establishing if a motorcycle headlamp was illuminated, why instruct an Expert who would use an optical microscope only, when a Scanning Electron Microscope (SEM) allows you to scientifically analysis the fracture face of a bulb filament? Again, FCIR possess this skill set. These are the types of questions that should be asked when instructing an Expert, to see if they are remaining current and extracting the full amount of information for you – or if this is the Expert you will be meeting on the ‘other side’! ■

DIRECTORY – EXPERT WITNESS PROFILES – 10 OF THE BEST!

THE SIZE OF

THE EVIDENCE BUNDLE IS A KEY COST FACTOR When seeking to appoint an expert witness, one of the major problems that instructing solicitors or counsel face is getting a sensible estimate of time and cost for an expert’s report. However, this problem can be drastically reduced by simply letting the expert know approximately how many pages the evidence bundle will contain.

s an expert witness, I find that the major part of my work is reading and understanding the evidence contained in the evidence bundle. I must then analyse it and use it to help form my opinion as detailed in the brief from instructing solicitors or counsel. However, I am often asked to estimate time and thus fees without knowing the size of the evidence bundle I will be expected to read and digest. However, if this was known, then estimating time and thus cost becomes much more straightforward and accurate. The key determinant of time and cost is the number of words and the complexity of language in the evidence bundle. Every person has what is known as an effective reading speed. This is a combination of two factors. The first is the speed at which a person can read the text. The second is the degree of comprehension that the person has and retains after reading at speed. (It ought to be safe to assume that a person who is an expert in their field should have a reasonably high effective reading speed, unless they have some form of visual or cognitive impairment.) The key measure, a combination of reading speed and comprehension, is known as Efficient Words Per Minute (EWPM). An average person can be expected to read around 200 words per minute and to have a rate of comprehension of about 60%. This will give an EWPM of 120. An expert might be expected to have a higher EWPM score when reading material relating to their field of expertise. This may produce an EWPM score of 150 to 200 depending on factors such as how tired the person is and the time of day. This is relevant because an average page of A4 text, written in English, in a type size between 10 and 12 point, laid out with reasonable spacing normally contains between 350 and 450 words. If I know the approximate number of pages in an evidence bundle, if I know my EWPM and if I assume that each page will contain say 400 words, then I can make a reasonable estimate of reading time required. As an example, if an expert’s EWPM was 170 and they were expected to read an evidence bundle of 100 pages (at 400 words per page), then the time required is 40,000 words divided by 170 EWPM = 235.5 minutes of reading which rounded = 4 hours. When preparing a report, an expert may require more than one read through of the evidence and some parts may need closer understanding and analysis. However, knowing the number of pages in the evidence bundle will make it easier and more accurate to estimate the reading time and thus the cost of an expert witness report.■

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www.complyport.com CENTRAL LONDON LAWYER 23

DIRECTORY – EXPERT WITNESS PROFILES – 10 OF THE BEST!

‘Rip It Up’ ‘But what makes it so valuable?’, the curator asked. I was examining a scorched CD by the Scottish folk/rock group Runrig.

his was a copy of a limited edition that had been recovered as debris in Florida on February 1st 2003 after the space shuttle Columbia STS-107 exploded. It had belonged to Laurel Clark, one of the seven astronauts, who was a big fan of the group and used the track ‘Running to the Light’ as a wakeup call. Research had indicated that individual items relating to the doomed flight had already been sold at specialist auction over the last few years for up to $7170. But there was more – the final track on Runrig’s penultimate album ‘The Story’ 2016 was ‘Somewhere’, which ends with a recording of Laurel. And ‘The Stamping Ground’ from which the track comes was the last album on which Pete Wishart played keyboards. Pete is now better known as a prominent SNP MP, since 2005 he has been the member for Perth and North Perthshire. Space/top Scottish group/politics - all this led to a minimum value of £10,000 for the CD. The valuation was for ‘Rip It Up’, the Story of Scottish Pop, an exhibition which ran from June to November 2018 in Edinburgh. I had been engaged by National Museums Scotland to value the memorabilia on loan to the museum, including awards, cover art, instruments and stage clothing from such as Franz Ferdinand, Simple Minds, the Rezillos and Annie Lennox. I particularly enjoyed appraising one of Ian Anderson of Jethro Tull’s flutes which was made up from

various components of his collection of 22 flutes, as is Ian’s standard practice in concert, and a range of items from Donovan including some decorated guitars, although sadly the latter were not shown. The last two years have been very productive with a multi-million pound insurance valuation on an extensive and diverse rock ‘n roll collection, a 20 day long warehouse appraisal of the former contents of a large Kensington mansion, currently being rebuilt, valuing a Turner oil, which needed forensic specialists to confirm the artist’s thumbprint and acting as agent to purchase art for an English museum. This punctuates the regular divorce and arts litigation work. I am regularly reminded that there is clearly a growing divide between the new collectors (urban/street art and entertainment/sport memorabilia) and the old money continuing to collect Old Masters and impressionists. Present work includes a court appearance later in the year on behalf of the owners of a damaged Banksy street sign and assessing the extent of asbestos damage on an Art Deco collection with a report to the court on intrinsic loss of value. ■

Andrew Acquier FRICS

The Art of Fire Investigation The examination of fires is perceived to be a difficult area of forensic science as fire destroys potential evidence which can determine how, when and where the fire started and by whom.

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his perception is mirrored in the most recent statistics which indicate that deliberate fires are increasing yet the number of convictions are falling, currently the conviction rate is around 5%. There are a variety of reasons for this but part of the issue must lie with the way arsons are investigated both at the scene and away from it. If you are asked to work on an arson case it is always worth checking the credentials of the person that is reporting the evidence to determine whether they are a reliable witness and if their conclusions can be substantiated. Many criminal investigations are subject to cognitive bias and this is an area of particular weakness in fire investigation therefore alternative hypotheses should be fully explored and perhaps independently reviewed. There are a number of things to look for at fire scenes: • The worst area of burning normally denotes where the fire has started. • A short time delay between a person leaving a premises and a fire being discovered could indicate a deliberate act. • It is sometimes difficult to differentiate between a fire started by a flame and a smouldering ignition source, such as a cigarette, without timings information as the resultant damage could be the same. • Ignitable liquids such as petrol and white spirit can be used to ‘accelerate’ a fire, but it is their vapours not the liquid that is ignited. The differing chemical composition of these liquids give them differing properties and burning characteristics. • Hand rolled cigarettes tend to self-extinguish if they are not actively smoked. One of the major areas of discussion within the cause and origin determination of a fire is around the timings of a fire and what that means in terms of potential ignition sources. Flame sources such as dropped or applied matches and lighters coming into contact with combustible items can produce flaming fires within a matter of minutes. Fires started by lit manufactured cigarettes can progress to flaming but first they will smoulder, a glowing flameless fire, for at least 20 minutes and more usually several hours producing increasing amounts of smoke. Information from smoke detectors can assist as they will give an early warning to any type of fire. Therefore, if a flaming fire is seen within minutes of a smoke detector sounding then it is likely that the fire was started by a flame. Fire scenes are challenging and the remaining evidence can be interpreted in a number of ways, however not always accurately. If you would like some assistance from experts that specialise in fire investigation then please contact us.

Ian Peck Forensic Scientist

DIRECTORY – EXPERT WITNESS PROFILES – 10 OF THE BEST!

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DIRECTORY – EXPERT WITNESS PROFILES – 10 OF THE BEST!

Japanese Knotweed Litigation and Expert Witness Requirements The Wildlife and Countryside Act and Environmental Protection Act 1990 are two long standing pieces of legislation requiring landowners and those working on land possessing knotweed to undertake a ‘duty of care’ in handling and disposing of knotweed.

ore recently two developments opened the door for further Professional Negligence: Mortgage Valuation Survey litigation opportunities in respect to knotweed: In October 2018, a Michele Davis took her mortgage surveyors • In 2014 the Property Information Form (TA6) was amended to ask (Connells Surveying and Valuation Ltd) to court for professional if the property was affected by knotweed. Surveyors failing to identify negligence for failing to identify knotweed on hers and the knotweed on a property survey could fall foul of professional neighbouring property. negligence claims. The claim for failing to find knotweed on the property was dropped, as • In 2018 Network Rail were prosecuted (Williams & Waistell v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514) for allowing knotweed to encroach from their land onto neighbouring residential properties, causing an actionable private nuisance. As a result, once knotweed encroachment is established, loss of amenity and damage is assumed to the affected property.

the valuation survey had been conducted in the winter and it was agreed that knotweed could not have been seen.

Neither did the court uphold the claim for failing to identify knotweed in the neighbouring property due to the inspection of next door being outside the scope of a valuation survey, and the presence of the knotweed next door not being noticeable from standing within the Further to the high-profile Network Rail private nuisance case, there subject property. have been two notable professional negligence cases: Professional Negligence: Level 3, RICS Building Survey In March 2019, Paul Ryb claimed professional negligence against Conways Chartered Surveyors for failure to identify knotweed on a property he bought, after commissioning a Level 3 Building Survey from them before purchasing. The judge was critical of the Level 3 Building Survey, which requires the surveyor to conduct a thorough visual inspection of the grounds. Expert witness accounts showed that knotweed had been present at the time of survey, and it was within the scope of duty for the surveyor to have identified and recorded it.

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Conways were ordered to pay damages of £50,000 for diminution in value of the property and £10,260 for the knotweed excavation costs. Expert Witness CPR Part 35 Compliant Reports One vital piece of evidence in each of the above cases is the production of an Expert Witness report. Japanese Knotweed Ltd have a legal team in-house to support solicitors and legal claims in providing CPR Part 35 Compliant Reports based on the expert witness findings of our PCA qualified CSJK (Certificated Surveyor in Japanese knotweed) Surveyors. ■

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DIRECTORY – EXPERT WITNESS PROFILES – 10 OF THE BEST!

Assessing malingering, lying and deception for reports Clinical psychologists, medics and allied health professionals acting as expert witnesses draw upon their experience as clinicians when writing reports for the Courts, but can be less familiar with the literature relating to assessment of lying and malingering (see: Resnick, 1995; Rogers, 1997; Drob et al., 2009; Vrij, 2000; Vrij et al.; 2011).

provide the opportunity to evaluate the validity of the informant’s story in the light of that prior knowledge (Vrij and Easton, 2002).

The literature on lying tends to view dishonesty as active clear cut – either what you say is wholly true or wholly untrue. In medico-legal settings the detection of partial truth may be particularly relevant. Resnick (1995) distinguished between: Pure malingering (feigning non-existent disease); Partial malingering (exaggeration of existing symptoms) and False Imputation (falsely ascribe real symptoms to unrelated cause). Resnick (1997) went on to suggest that the clinician might also attend to other factors in assessment of validity of a claimant’s reporting, including: irregular employment & job dissatisfaction; previous claims for injuries; lack of co-operation at interview; psychological test results.

Psychological tests can serve to alert the clinician to possibility of inconsistency in presentation, but frequency of false positive and false negatives needs to borne in mind. Interpretation of Psychometric test results requires care: Maguire, at al., (2001) reported that Pure malingerers (those inventing history of pain) tend to produce similar scores to those of “real” pain patients on psychometric tests (eg; Pain Patient profile), whilst Partial malingerers (those exaggerating existing pain) tend to substantially over-endorse symptoms. Faking psychological distress or pain is not difficult: Edens et al., (2001), for example, showed that successful malingerers asked to feign a mental disorder tended to endorse a lower rate of legitimate symptoms, avoid overly unusual or bizarre symptoms and/or base their responses on their personal experiences.

here is evidence that people are usually not good at detecting lies (Vrij, 2000), and experts (for example, members of the Criminal Intelligence Agency) have been shown to perform only slightly better than most other people (Ekman, et al., 1999).

Rogers (1997) provided a list of factors a clinician might be alert to in interview:

Rare symptoms (honest respondents might The opinion of an expert witness to the Court should describe symptoms that a malingerer might not be based on evidence cited in support of conclusions, and result from a comprehensive know about), assessment. The structure of the interview, the Indiscriminate symptom endorsement (confirming relevance of areas covered, the recognition of limits presence of all symptoms asked about), of expertise, and the awareness and consideration Obvious symptoms (observable signs of difficulty), of alternative interpretations of evidence must be Improbable symptoms (unlikely difficulties in the taken into account when the Court assesses the context), weight to be attached to an expert’s report. Attention to presence of improbable combinations In the clinical setting, careful observation targeting of symptoms, Presence of symptoms of improbably extreme the deception cues detailed above, extended interview probing, without revealing available severity. information, together with such additional tests as Lanyon (1997) suggested that, in assessing may be appropriate, may increase the chance of likelihood of malingering, an individual’s accuracy of detecting malingering. However, the only way to be knowledge about a disorder is important, and confident about the veracity of a client's report is to investigators might usefully seek to identify whether thoroughly investigate the issue and search for or not someone is familiar with information which collateral evidence (medical reports, statements of would not be readily known. The assessor might independent witnesses, forensic evidence) which also consider whether someone presents supports or contradicts claims made. information in a way which is consistent with common expectations for a disorder, but which Awareness of the relevant literature and/or formal training in the relevant techniques may be a does not actually reflect empirical validity. requirement for expert witnesses. The expert There may be a wide range of other psychological assessor’s attention to these key issues will assist factors that will affect assessment and prognosis. both in the forming of opinions and the expert’s Ferrari et al., (1999) suggested that the prognosis for expression of confidence in those opinions. ■ injuries in medico-legal settings can be affected by a range of aspects, such as: blame, expectations & labelling, attention to symptoms, social factors, By Mr Simon Easton, litigation and the sick role. Chartered and Clinical Psychologist The clinician, when preparing a report for the Court, & Visiting Research Fellow, University of Portsmouth & Member of the Expert in Mind Expert Witness Panel will usually have the opportunity to review other sources of information, such as medical records. Extensive and detailed questioning at interview will CENTRAL LONDON LAWYER 27

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Software

Law-Whiz – Connects Professionals All Round When Law-Whiz was launched in 2018, it was designed to simplify the briefing process for lawyers across 7 jurisdictions that practiced under the Common Law legal systems.

ince its maiden launch in 2018, the Founder|CEO, Ms April Arslan says, “due to demand by barristers in Australia, and the need to provide a logistical and practical mechanism for large corporates to connect directly with the bar for specialized advices, (subject to jurisdictional Bar Rules), we included a new role to accommodate these users under DIRECT ACCESS. Banks, large corporates, accountants, financiers and the like can now sign up as a Direct Access user and connect directly with the Bar members should they choose to do so. Ms Arslan says since then she rolled out the business process into a separate industry by founding her second global platform I-Whiz which she launched recently at New York, USA and says “that new experience opened my eyes and really shaped the new proposed enhancements on the Law-Whiz platform as I wanted Law-Whiz to reach out to a wider professional audience”. She went on to say ‘’the new phase for Law-Whiz will be even bigger and better so watch out for that space”. Ms Arslan said markets demand change and you need to be agile and responsive to these changing needs. The

demand from other countries, provided the impetus for her to introduce a new role for OTHER PROFESSIONALS to connect with lawyers across the globe (at no costs to these new users), giving lawyers the opportunity and the sheer freedom to market with no exertion by simply browsing and applying on added matters by other professionals seeking legal services for either their own or for referral purposes or otherwise waiting to be invited in the usual way under the platform’s distinct and unique capabilities. Law-Whiz aims to become the only tool for lawyers by: 1. Simplifying the briefing process between solicitors and barristers in traditional common law based legal systems; 2. Offering corporates direct access to barristers (subject to jurisdictional Bar Rules); and now 3. providing other professionals across the globe an opportunity to connect with lawyers within or outside their jurisdiction for the ultimate purposes of servicing their own or clients’ legal requirements. ■ enquire@law-whiz.com

CENTRAL LONDON LAWYER 29

Software

Offer targeted valuable content and experiences The digital revolution has radically changed the relationship between consumers and businesses by creating a world where a competitor is never more than a click away.

o consistently delivering a positive customer experience – both online and offline – is fundamental to commercial success.Content and information is the ultimate driving force behind the customer experience and customer engagement.

Improving the customer experience is growing as the key objective for businesses across all sectors as they strive to improve all aspects of the customer relationship to increase their sales, revenues and profits. Given it is 6 to 7 times more expensive to attract a new customer than it is to retain an existing one, ensuring that you have the right strategy encompassing all your customer interactions is essential to delivering ongoing audience engagement and loyalty. The big challenge for organisations is to not only understand who their customers are and

what they need, but also to have the right technology in place to deliver on these expectations at the right time, in the right place and format. According to Gartner, the customer experience is defined as the “customer’s perceptions and related feelings caused by the one-off and cumulative effect of interactions with a supplier’s employees, systems, channels or products.” Managing the customer experience (CXM) involves understanding how your customers interact with your brand and reacting to their activities to improve the experience to nurture the customer lifecycle. The relationship between a business and its customers (or client) involves a great deal of understanding and trust. As competition for their attention continues to increase in today’s digital landscape, being able to truly understand who they are and what they want is becoming even more critical to ongoing success. Content and information is the ultimate driving force behind the customer experience. This can take several forms of media such as articles, images, graphs, audio and video files. Through interaction with content, both current and prospective clients build trust in your business and brand by understanding why engaging and working with you would benefit them. Providing a highly engaging and personalised experience relies on having the capability to deliver the right form of content to the right part of your audience at the right time.

Helping g grow commun nity engagem ment Call 020 7766 9810 Email: info@abaacusemedia.com 30 CENTRAL LONDON LAWYER

At Abacus, our mission is to help brands and communities to grow revenues and improve engagement with personalised offers and experiences across multiple channels and product sets. Our specialist cloud platforms and services manage digital content, websites, paywalls, e-commerce, and subscriptions. We also provide sophisticated Single Customer View and membership engagement functionality for both large and small professional institutions and brands across the globe including UK, US, Australia, South America, the Middle East, and Asia. Our clients include Ascential, British Film Institute, Centaur, Christie’s, Conde Nast, EMAP, Gas World, IBC, The Law Society, New Scientist, and Royal Society of Chemistry. Webvision Cloud is an award-winning GDPR-compliant Digital Experience Platform (DXP) for organisations of all sizes that need to provide their audience with a relevant and engaging digital experience across all devices, at an affordable price. At Abacus, our mission is to help brands and communities grow revenue and engagement with personalised offers and experiences. If you are looking to upgrade your website, CMS and complement it with a fully integrated audience management database, we have a winning proposition in Webvision Cloud. For more information, please contact at marketing@abacusemedia.com or 0207 766 9810 ■

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If you’re using any Drainage and Water report other than the CON29DW…

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When it’s your reputation on the line, do you really want to leave it to luck?

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CON29DW from Geodesys. No inferring, no ignoring, no insuring. Assessing drainage and water risk can be a tick-box exercise, but with the CON29DW you’re guaranteed a factual, reliable and secure approach. It’s a choice that impacts three separate, but connected, parties in the home buying process:

The lender Lenders need to focus on property risk as well as applicant risk – and a key concern is drainage and water. The CON29DW answers all 23 drainage and water questions from the Law Society, covering areas such as connections, pipe and drain locations, and risk of internal flooding. Other reports can infer and ignore answers, using insurance to cover the risk.

The conveyancer If a less than full picture of the property leads to drainage or water issues, a law firm’s PI insurance usually covers any remedial work – but it can’t cover the time and effort required, nor any damage to reputation. Plus the homeowner may have to carry out costly work in the future.

The CON29DW from Geodesys offers the following key features: • a crystal-clear front-page customer dashboard • clear identification of potential issues • easy-to-use interactive navigation • two formats: interactive PDF and usual print format • thorough information on drainage and water legislation • a ‘plain English’ guide • a modern design created by industry

The home buyer Whether a dream house, a desperately needed upgrade or a first-time purchase, complex drainage and water problems are a major setback for any homeowner. Even if covered by insurance, there’s still the pain of sorting out an issue that could have been identified before – and the buyer may not have gone ahead if they’d known. Call: 0800 085 8050 Email: customer.services@geodesys.com www.geodesys.com/con29dw-goodluck The Report

Finance

Do YOU have YOUR referral process in place? As Managing Director of an organisation whose raison d’etre is to assist quality financial advisory businesses build relationships with solicitors, you might forgive me for having a keen interest in how SRA regulated firms will adapt to the incoming Standards and Regulations, when it comes to client third party referral.

nder the new dual code system arriving in November, the regulator is very clear that they expect with a capital E, the management and compliance officer to be installing processes and systems to facilitate best practice and instruct individuals within the practice. When it comes to where solicitors refer clients who require complimentary financial planning, this will mean that between now and the advent of the new era, firms should have conducted thorough due diligence on the likely recipients of these financial planning referrals. The SRA reiterated this to SIFA Professional delegates at our recent conference and the expectation described above is clear. In reality it is all about the new Principal 7 and demonstrating that a referral is in the clients best interests and I quote – “Referrals to

Endorsed by

Visit sifa-directory y.info for more information. 34 CENTRAL LONDON LAWYER

To us at SIFA Professional best practice will therefore be for law firms to settle on a short panel of quality financial planning partners, selected for their expertise and qualifications and not on individual personal relationships, as may have been the case in the past. Once this panel is determined, hopefully, well ahead of November 25th, this should be presented to all in the firm who may need to refer clients for financial advice as a centralised and compulsory firm policy. This way the firm will ensure that all individuals act professionally within their own individual code and raise standards for clients, the aspiration of the new regime. A further point of interest raised by The SRA brings into focus, the fine line between the rules and what is logical, professional best practice. When a referral to a third party, where there is a financial interest for the solicitor, the new rules require the client to give informed consent before the referral is made. Where there is no financial interest or fee sharing and the referral is made to an unconnected third party, the solicitor need only demonstrate why he or she, or the firm believe the referral is in the client’s best interests. However logic suggests a rather different process as when showing the client why you believe the referral is in their best interests (the due diligence and research the firm has conducted,) surely one would ask the client if they understood and were happy for you to make the referral, particularly when there may be personal data involved. In the SRA’s own words in June – “Clients should understand and agree to what is happening.”

Business development for solicito ors & ÄUHUJPHS HK]PZLYZ

a third party should be based on a measured approach aiming to benefit the client.” What is also obvious is that another principle, namely ‘Independence’ comes into play – “Law firms should retain their independence – Can you justify referring clients to the same third party?”

To summarise, ahead of November, the management of SRA regulated firms should have undertaken research and due diligence to ensure the third parties to which they refer are demonstrably in the clients’ best interests and have a process to ensure all parties within the firms adhere to that process. Having that research available to show the client on point of referral will be key and best practice suggests seeking the clients’ approval at that juncture for the file. When it comes to your research and due diligence on financial planning partners you might wish to see if there is a SIFA Professional firm near you by searching on the Law Society endorsed SIFA Directory - https://www.sifa-directory.info/ ■

David Seager Managing Director of SIFA Professional

Conveyancing

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Guaranteed Conveyancing Solutions (GCS) is recognised as a market leading provider of legal indemnity insurance (otherwise known as â&#x20AC;&#x2DC;title insuranceâ&#x20AC;&#x2122;), for both â&#x20AC;&#x2DC;Residentialâ&#x20AC;&#x2122; and â&#x20AC;&#x2DC;Commercialâ&#x20AC;&#x2122; properties.

ll our policies are comprehensively worded and the process of obtaining cover is fast and simple. There are 3 options when it comes to issuing legal indemnity insurance with GCS: â&#x20AC;&#x2DC;Onlineâ&#x20AC;&#x2122;, â&#x20AC;&#x2DC;Packâ&#x20AC;&#x2122; or â&#x20AC;&#x2DC;Bespokeâ&#x20AC;&#x2122;. 1) â&#x20AC;&#x2DC;GCS Onlineâ&#x20AC;&#x2122; provides users with 24/7 access to their account where they can obtain quotes in seconds and issue policies in minutes. All documentations are sent out electronically and immediately. 2) GCS Insurance â&#x20AC;&#x2DC;Packâ&#x20AC;&#x2122; is just as easy to use as our Online system. The main difference is that documentation is not sent out electronically but instead, policies are in paper format and contained in logical order within the Pack itself. 3) Our â&#x20AC;&#x2DC;Bespokeâ&#x20AC;&#x2122; service is available if you are unable to issue directly from our â&#x20AC;&#x2DC;Onlineâ&#x20AC;&#x2122; or â&#x20AC;&#x2DC;Packâ&#x20AC;&#x2122; because the risk does not meet the relevant criteria or if the policy cover your client requires is not listed Online or in the Pack. Simply contact us for a quote â&#x20AC;&#x201C; an experienced and friendly underwriter is always there to help. Donâ&#x20AC;&#x2122;t worry â&#x20AC;&#x201C; the choice is yours! We understand that not all conveyancing professionals work the same way and that some prefer certain methods of obtaining legal indemnity cover for their clients over other methods.

At GCS, we have over 20,000 conveyancers that rely on our policies with every individual having the option to choose Online, Pack, Bespoke or ALL three methods in combination. All services are FREE to use and non-obligatory â&#x20AC;&#x201C; Online registration takes minutes and we post the insurance Pack first class the day itâ&#x20AC;&#x2122;s requested. Donâ&#x20AC;&#x2122;t just take our word for it â&#x20AC;&#x201C; hereâ&#x20AC;&#x2122;s what our customers have to say: â&#x20AC;&#x153;I (personally) think GCS are brilliant. The self-issue packs are fabulous.â&#x20AC;? â&#x20AC;&#x153;The online service is simple, cost comparable to other insurers and very user friendly.â&#x20AC;? â&#x20AC;&#x153;Pack and bespoke arrangements always come back quickly and will provide reply within hours to enable matters to be dealt with efficientlyâ&#x20AC;? Like what you hear? Join the thousands who come to us for their clientsâ&#x20AC;&#x2122; legal indemnity needs and find out why weâ&#x20AC;&#x2122;re trusted by over 20,000 conveyancing professionals. Register for â&#x20AC;&#x2DC;GCS Onlineâ&#x20AC;&#x2122; account today by visiting www.gcsonline.gcs-title.co.uk. Request a GCS insurance â&#x20AC;&#x2DC;Packâ&#x20AC;&#x2122; today by visiting www.gcs-title.co.uk/orderpack. For a â&#x20AC;&#x2DC;Bespokeâ&#x20AC;&#x2122; quote, send an email to underwriters@gcs-title.co.uk. â&#x2013;

Itâ&#x20AC;&#x2122;s a

(bvb| gcs-title.co.uk/:+

]1vĹ&#x160;ŕŚ&#x17E; |Ń´;Äş1oÄşÂ&#x2020;h Ć?Ć?Ć&#x201C;Ć&#x2019;Ć&#x201D; ŃśŃľŃśĆ?Ć&#x201D;Ć? Â&#x2020;m7;uÂ&#x2030;ub|;uvĹ ]1vĹ&#x160;ŕŚ&#x17E; |Ń´;Äş1oÄşÂ&#x2020;h CENTRAL LONDON LAWYER 35

Premium Residential <0.25Ha

Environmental | Flood | Ground Stability | Energy & Infrastructure

Report Details

Subject Site

Address:

R uested by: Req

Grid Reference: E: 123456 | N: 123456

D te: Da

Report Reference:

R Repo rt ID:

Sample, Sample

Sample

S Sample

2 /04/2018 27 1 00085407 10

Professional Opinion on 1.ENVIRONMENTAL

No further recommendations

PASS

2.FLOOD

PASS

3.GROUND STABILITY

PASS

4.ENERGY & INFRASTRUCTUR TURE

PASS

No further recommendations

Consideration(s):

4.20 Power Stations

uted Areas Air Quality Index: Some Pollut (See 1.25)

This page should always be read in conjunction with the full report. The Professional Opinion indicates the potential risks and any other potential issues associated d with the property. The results should be disclosed to client and/or lender and/or insurer as appropriate. A ‘Pass’ is g given if no p potential p property p y speci p ific risk has been identified. A ‘Pass with Considerations’ is given where there are potential hazards in the locality to bear in mind, d, or if there are features nearby which some clients might consider could affect them. A ‘Further Action’ is given if there is a potential property specific risk and a further action is advised.

In the event of a request to review the Professio ional Opinion based on additional information, or if there are e any technical queries, the professional advisor who ordered the report should contact us at info@futureclimateinfo.co om, or call us on 01732 755 180.

Regulated by RICS If you rre equire assistance, please contact your Search Provider or alternatively contact FCI directly with your Report ID. Tel: 01732 755 180 | Email: info@futureclimateinfo einfo.com | Web: www.futureclimateinfo.com

AFFILIATE MEMBER

Header Conveyancing

The Southall Stench: Developer facing Legal Action over Remediation Residents are preparing a legal challenge to the remediation and redevelopment of a former gasworks in Southall, West London.

fter 2 years of petrol-like odours and numerous complaints to the council, developers and regulators, they want to stop the building work and are seeking compensation for injury. Southall Waterside is one of the most ambitious brownfield developments under way in the UK. The 88-acre former gasworks site is being redeveloped by St James for the Berkeley Group. 3,750 homes and up to 500,000 square feet of commercial space is proposed in a key location next to the Crossrail route into central London. Built in 1869, the “old gasworks” was a large, bleak triangle of land on the edge of Southall. It contained a chemicals factory which closed in 1973. Over the century, London expanded and neighbourhoods grew up around it.

Soil Cleaning causing Nuisance? In early 2017, as part of the wider remedial methods used, work began on cleaning soils and removing contaminants in an open-air “soil hospital”. The spoil has been allowed to bank up behind nearby residents' properties. This contains a variety of hydrocarbons including benzene, a known carcinogen, terpenes, naphthalene, plus asbestos and cyanide. In line with national policy on sustainability, Berkeley Group’s agreed remediation strategy included cleaning the soil on site. They felt that it was safer than transporting contaminated material along residential streets. A legal nuisance campaign against the developer is being led by Jo Sidhu QC, who grew up in Southall. With the support of campaigners, he has prepared a dossier of evidence. This reveals residents’ respiratory problems, chest pains and other symptoms reported since work began on the Southall Waterside development. Residents across 50 households have spoken of breathing difficulties and the onset and worsening of asthma. A wide range of other symptoms have been reported. These include eye irritation, irregular heartbeats, migraines, skin rashes, chest infections, nausea, dizziness, memory problems and a sensation of “internal burning". Some said they only felt well when they left the Southall area.

No independent air quality assessment The Environment Agency (EA) is the primary regulator of the soil remedial works. They are there to advise Ealing Council on how the land affected by contamination should be managed. The Council is responsible for investigating complaints of statutory nuisance. Mr Sidhu QC argues this is the key issue here. He states that “Public nuisance is both a criminal offence and a civil action in tort. It also involves substantial breaches of environmental law.” Public Health England (PHE) and Public Health Ealing are tasked with protecting the health of the public. A PHE interim assessment of the available air quality data monitoring provided by Atkins, hired by Berkeley, said that it was “considered unlikely to pose a direct toxicological risk to the health of the nearby population” and that “average levels of VOCs [volatile organic compounds] have been below or comparable to guideline or assessment levels.” However, levels of naphthalene on site “should urgently be reduced to prevent prolonged exposures”.

An issue with air quality monitoring levels for Volatile Organic Compound (VOC) is that they are based on occupational hazards rather than for nearby residents. The campaign group were also surprised that Ealing Council did not seek its own independent assessment and relied on the developer. Next Steps Mr Sidhu QC is not going to be representing the campaign group when the case comes to Court, as he is a criminal barrister. Instead, he will instruct a team of specialist environmental lawyers and barristers to pursue a public nuisance case against Berkeley. Ealing Council and the EA could also be the subject of legal action. Under section 222 of the Local Government Act 1972, local councils are empowered both to prosecute and to commence civil proceedings for public nuisance where this is “expedient for the promotion or protection of the inhabitants of their area”. They can also apply for an injunction in the county courts or High Court. However, activities subject to an environmental permit ¬ like Southall Waterside ¬ require government permission before launching a prosecution for breaching an abatement notice, to avoid the potential for double regulation. A Berkeley Group spokesperson said: “This is a highly regulated activity and all work has been closely monitored and approved by the authorities, including the London Borough of Ealing and the Environment Agency. Any legal challenge – if and when it materialises - will be vigorously opposed.” “Delicate Balance” needed The Waterside site remediation raises serious concerns about pollution containment in close proximity to existing residents. Commenting on the case, Managing Director at Future Climate Info, Tim Champney said: “Sustainability policy in development quite rightly promotes the reuse of materials on-site where possible. This aims to reduce the environmental and social impacts from hauling soils off-site to remedial facilities or landfill. This also lessens the demand on sourcing new material. However, there is a delicate balance to be found between the interests of sustainable development and those who live in close proximity where the practices can have unintended short term consequences. Ensuring that on-site remedial methods cause minimal local disruption will be essential to maintain public support. It also avoids developers being worried about employing these important principles in future.” We will watch this developing nuisance case with interest as it moves to the Courts. Does your client have a potentially complex redevelopment site that needs due diligence on its past use? Our commercial environmental report, combined with our fixed fee further review services provides unparalleled support. For more information, contact us on 01732 750180 or email consultancy@futureclimateinfo.com. ■

CENTRAL LONDON LAWYER 37

Contentious Probate

How changing family dynamics can increase contentious probate proceedings In today’s society, there are more frequent adoptions (both in and out of families), children born outside of the traditional marriage and people having children with multiple partners.

hese increasing complexities in family relationships have naturally led to a rise in the number of contentious probate proceedings. It’s now more likely for disputes to arise when it comes to administering a deceased person’s estate, and with this comes the increased probability of claims against an estate. On numerous occasions, Title Research has seen their clients come close to a misdistribution because of complex and unidentified family dynamics. In fact, recently we were instructed to verify the Deceased’s paternal family on an intestacy case. The estate was expected to be passed to the class of whole blood aunts and uncles or passed on to their issue if predeceased. During our research of the paternal family, we found 14 potential heirs. On the maternal side of the family, the Personal Representative was believed to be the only heir. Sadly, just before distributing the estate the Personal Representative died. As a result, we were asked to verify the maternal side of the family tree so our client could acquire missing beneficiary insurance. The work was predicted to be straightforward but we

quickly realised that this was not the case. We located 62 maternal heirs in total, resulting in 76 entitled heirs overall. This is certainly not the first time we’ve discovered additional unknown heirs and prevented a client from misdistribution. If the estate had been incorrectly distributed, it could have resulted in a contentious probate case and/or future claims against the estate where the Personal Representative would have subsequently been liable. Title Research’s genealogy experience spans over 50 years and in that time, we’ve learnt that family relationships are not always as they seem. We use our experience and expertise to deliver smooth, cost effective genealogical services to you and your clients. We minimise future risk or liability, making us a great choice to trace missing beneficiaries and reconstruct or verify family trees. If you’d like to find out more about Title Research’s genealogical research services, call our Client Services Team on 0345 87 27 600 or email info@titleresearch.com. ■

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“We’re not genealogistts, we’re lawyers, so to be able a to give that job to Title e Research helps us to deal with complicated estattes and complex ffamily amily tree es.” Testimonial f rom Pauline Lawson, Partner at Stone Ro R we Brewer.

Speak to our specialis sts today: 38 CENTRAL LONDON LAWYER

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Title Research Spectrum Hou use, Bond Street, Bristol, BS1 3L 3 G

Contentious Probate

New LEAP App

Photo: John Flanagan

is changing how lawyers manage probate Probate work is highly administrative and due to its delicate nature must be carried out with great care and attention. This often causes conflict with the need to work efficiently.

hroughout the past year, LEAP has added significant new features to its practice management solution so that lawyers practising probate can increase profits but keep the process as short and painless as possible for the client. The latest feature from LEAP’s innovative and industrious software development team is the LEAP Probate App. As with all new features in LEAP, the app is built with the end-user in mind. By collecting and responding to client feedback early on in the development lifecycle, better end-user satisfaction can be achieved, enabling lawyers to practise probate at optimal efficiency without compromising on service. Providing a simple interface, the LEAP Probate App allows practitioners to input estate information with ease, completing complex inheritance tax calculations and estate accounts quickly and accurately and automating the generation of the relevant IHT forms, avoiding the need to rekey information.

There is no requirement to rekey data between the software and the IHT400 forms with the data re-used for the Estate Accounts calculations, making the process more efficient. Security is ensured as all data is encrypted and stored safely within Amazon Web Services’ data centres. John Flanagan, Head of Product and Innovation at LEAP UK comments: “By talking to our clients and learning their processes, we have enhanced our probate software to improve the user experience. This new functionality within LEAP is the most efficient way to manage probate, allowing a practitioner to take on a higher case load and generate more profit.” ■

The LEAP software allows for simple data capture, mirroring the process of the HMRC IHT400 form electronically. Once the data is entered in LEAP, the App uses that information to produce accurate IHT400, Schedules and Estate Accounts which can be saved back to the LEAP matter with one click. CENTRAL LONDON LAWYER 39

Contentious Probate

Lomax v Lomax: a case for Early Neutral Evaluation? Richard Adams, Senior Associate Photo: Richard Adams

n Early Neutral Evaluation (“ENE”), put simply, is a non-binding form of Alternative Dispute Resolution where, at an early stage in proceedings, an independent expert considers and provides a nonbinding and without prejudice assessment of the respective merits of each party’s case, and the likely outcome should the matter proceed to trial. This exercise is of value where parties have differing views as to prospects of success. The issue for the High Court to decide in the Lomax case, was whether the court could compel the parties to participate in an ENE, in circumstances where one of the parties would not consent to doing so. Civil Procedure Rule 3.1 (2) (m) provides that the court may – 'take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case’. Mrs Lomax issued proceedings seeking provision from the estate of her late husband, pursuant to The Inheritance (Provision for Family and Dependants) Act 1975. The claim was defended by the son of the deceased. His position, that reasonable provision had

L E T ’S WOR K TOGE T HE R ǆĐůƵƐŝǀĞůǇ ĨŽƌ ůĂǁ ĮƌŵƐ͕ >ĞŐĂů EĞƚǁŽƌŬ >ŽŶĚŽŶ ŝƐ Ă ĨƌĞĞ ƚŽ ũŽŝŶ ƌĞĨĞƌƌĂů ĂŶĚ ƐƵƉƉŽƌƚ ƐĞƌǀŝĐĞ ǁŚŝĐŚ ĂƐƐŝƐƚƐ ŵĞŵďĞƌƐ ďǇ ŽīĞƌŝŶŐ ĞǆƉĞƌƚ ůĞŐĂů ĂĚǀŝĐĞ ƚŽ ƚŚĞŝƌ ĐůŝĞŶƚƐ ŝŶ ĂƌĞĂƐ ƚŚĞǇ ĚŽ ŶŽƚ ƉƌĂĐƟĐĞ ŝŶ͘ KǀĞƌ ƚŚĞ ůĂƐƚ ϭϬ ǇĞĂƌƐ͕ ŽƵƌ ŶĞƚǁŽƌŬ ŚĂƐ ŚĞůƉĞĚ ŚƵŶĚƌĞĚƐ ŽĨ ůĂǁ ĮƌŵƐ ƚŽ ƌĞƚĂŝŶ ƚŚĞŝƌ ĐůŝĞŶƚƐ ĂŶĚ ŝŶĐƌĞĂƐĞ ƚŚĞŝƌ ƌĞǀĞŶƵĞ ĚƵĞ ƚŽ ŽƵƌ ŶŽŶͲƉŽĂĐŚŝŶŐ ĐŽŵŵŝƚŵĞŶƚ ĂŶĚ ĨĞĞ ƐŚĂƌŝŶŐ ĂƌƌĂŶŐĞŵĞŶƚƐ͘ tĞ͛ƌĞ ŽƉĞƌĂƚĞĚ ďǇ ,ƵŐŚ :ĂŵĞƐ͕ Ă ĨƵůůͲƐĞƌǀŝĐĞ͕ ƚŽƉ ϭϬϬ h< ůĂǁ Įƌŵ͘ tŝƚŚ ŵŽƌĞ ƚŚĂŶ ϱϬ ǇĞĂƌƐ͛ ĞǆƉĞƌŝĞŶĐĞ ŝŶ ƉƌŽǀŝĚŝŶŐ ƐƉĞĐŝĂůŝƐƚ ůĞŐĂů ĂĚǀŝĐĞ͕ ǁĞ ŚĂǀĞ ƚŚĞ ĞǆƉĞƌƟƐĞ ƚŽ ĚĞůŝǀĞƌ Ă ƐĞƌǀŝĐĞ ǇŽƵ ĂŶĚ ǇŽƵƌ ĐůŝĞŶƚƐ ĐĂŶ ƚƌƵƐƚ͘ dŽ ƌĞĂĚ ĂďŽƵƚ ŽŶĞ ŽĨ ŽƵƌ ƐƉĞĐŝĂůŝƐƚ ĂƌĞĂƐ ŽĨ ĞǆƉĞƌƚŝƐĞ͕ ƉůĞĂƐĞ ƐĞĞ ŽƵƌ ĂƌƚŝĐůĞ ĂďŽǀĞ͘

&Žƌ ĨƵƌƚŚĞƌ ĚĞƚĂŝůƐ ŽŶ ŚŽǁ ƚŽ ũŽŝŶ >ĞŐĂů EĞƚǁŽƌŬ >ŽŶĚŽŶ͕ ƉůĞĂƐĞ ĐŽŶƚĂĐƚ ƵƐ ŽŶ͗ legalnetwork@hughjames.com or 033 3016 4444

>ĞŐĂů EĞƚǁŽƌŬ >ŽŶĚŽŶ ŝƐ ŽƉĞƌĂƚĞĚ ďǇ ,ƵŐŚ :ĂŵĞƐ͕ Ă ƚŽƉ ϭϬϬ h< ůĂǁ Įƌŵ ǁŚŝĐŚ ŝƐ ĂƵƚŚŽƌŝƐĞĚ ĂŶĚ ƌĞŐƵůĂƚĞĚ ďǇ ƚŚĞ ^ŽůŝĐŝƚŽƌƐ ZĞŐƵůĂƟŽŶ ƵƚŚŽƌŝƚǇ ĂŶĚ ƚŚĞ &ŝŶĂŶĐŝĂů ŽŶĚƵĐƚ ƵƚŚŽƌŝƚǇ͘

40 CENTRAL LONDON LAWYER

already been made for the claimant, and that the claim was essentially without merit. The claimant sought an ENE, which the defendant resisted. Much of the legal argument focused on the wording of CPR 3.1 (2) (m), and whether its wording provided the court with a power to compel parties to participate. The present wording allows the court to order an ENE, but did that, or perhaps the courts inherent jurisdiction, provide a mechanism to essentially force a non consenting party to engage. The court concluded that there was no current ability to compel a non consenting party, the present rules being inconclusive. The Judge commented that clarity should be provided by the relevant committee as to whether ENE is in fact compulsory. Clarification on this point is clearly required, and we will wait to see whether the CPR will be amended to allow a judge led process in respect of ENE, and the approach to Alternative Dispute Resolution more generally. The present role of the court in the process is essentially one of a neutral facilitator. Time will tell, if we ultimately see a shift towards a court led and controlled process. ■

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Contentious Probate

WIFE’S ACQUIESCENCE IN HUSBAND’S TESTAMENTARY WISHES NOT SUSPICIOUS

GUPTA v GUPTA I

n Gupta v Gupta [2019] WTLR 575 the claimant challenged the validity of the will of his mother (Mrs Gupta) which treated him less favourably than his two siblings. He alleged that there were four suspicious circumstances: (1) The dominance of Mrs Gupta’s husband, Mr Gupta. (2) Mrs Gupta’s limited understanding of English: her first language was Hindi; (3) Physical and mental illnesses from which Mrs Gupta suffered; (4) The disparity in the benefits received by her three children under the Will. The Judge found, on the evidence, that the above circumstances did not give rise to a suspicion that Mrs Gupta did not know and approve of the contents of her Will. She retained sufficient independence and understanding, despite her ailments and limited English.

Photo: Charles Holbech

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42 CENTRAL LONDON LAWYER

A plea of want of knowledge and approval may succeed where the testatrix is not an independent agent, but merely a cipher for another’s wishes. Mr Gupta was the head of a traditional Indian family who did not brook disagreement. He had deliberately sought to create a disparity in the children’s benefits. Mrs Gupta was accustomed to go along with his wishes on financial matters. However, notably, the Judge did not regard such acquisence in her husband’s wishes as suspicious, but on the contrary as providing an explanation for the terms of the wife’s Will. Another key factor was that the terms of the will had been explained to the wife by a solicitor. The Judge approved a passage from Lord Neuberger’s judgment in Gill v Woodall [2011] Ch 380 that the preparation of, and reading through, of a Will by a solicitor raises a very strong evidential presumption that it represents the testator’s intentions. The Judge accepted that the solicitor would not have witnessed the will if she thought that Mrs Gupta did not approve or understand it (even though the solicitor was subsequently struck off for dishonesty, forgery and impropriety). In conclusion, it will be difficult to establish that a testatrix did not know and approve of a will prepared, and explained, by a solicitor, even where the testatrix is accustomed, for cultural or other reasons, to go along with the wishes of their spouse. Gill v Woodall was superficially similar on its facts. A husband and wife had made matching wills, excluding their daughter, probably under the influence of her husband. The wife’s will was set aside even though it had been explained by a solicitor. However, the case was extraordinary on its facts, as the solicitor had been unaware that the testatrix suffered from a rare form of agrophobia which affected her ability to concentrate and absorb information. By contrast, it was not regarded as extraordinary or suspicious in Gupta that a wife, who was accustomed to obedience to her husband and in ill-health, should follow the wishes of her husband. It was no doubt significant that the Judge found that Mr Gupta was a decent and loving husband who would not have permitted his wife to execute a will without her understanding or approving its contents.. ■

Charles Holbech Private Wealth Barrister, Radcliffe Chambers

PI Insurance

Renewing your PII for 2019 should be a priority. Conditions have changed and the market has hardened.

he legal profession has enjoyed access to competitively priced professional indemnity insurance for many years. PI market conditions have been favourable, capacity amongst insurers has been ample and renewing PI has been relatively straightforward for most firms But conditions have changed, and the market has hardened. It has been widely reported over the past few months of a challenging and hardening professional indemnity insurance market. The alarm bells started ringing in August last year when Libra Managers, which provided cover to 20 of the top 200 firms, confirmed it would not underwrite any new business from 1 October 2018. That left a number of firms with just six weeks to find a new insurer. As Solicitors prepare to renew their 2019 Professional Indemnity Insurance there is significant evidence from brokers and insurers that the market is significantly hardening - and some firms may find it difficult to obtain competitive terms. Most insurers are expecting a rate increase of around 10% and this is affecting firms of all sizes and profiles. Rates maybe even higher if a firm’s fee income has increased substantially or claims activity has increased. The rise in premiums is due to the general hardening of the insurance market, partly driven by higher value claims, the reduced capacity of participating insurers and some specialist PI insurers

withdrawing from the market altogether. This year, therefore, it is even more imperative that Solicitor firms consider their PII renewal sooner rather than later, and, importantly, prepare their proposal form carefully – fewer questions will be asked by underwriters if you complete your proposal form as a comprehensive overview of your firm. For example, it should include a detailed explanation, and the firms’ remedy, of any large claims; a clear and precise clarification of any changes, or proposed changes at the practice and/or work splits. Firms should also regularly review their claims history to ensure that any of the claims that can be closed are indeed closed, rather than remaining recorded as ‘open’ on their summary spread sheet. The professional indemnity insurance market may be hardening for the first time in years, but as reported recently in The Law Society Gazette, well-managed firms with the right profile and approach will find that there are good deals to be had. But it is important not to be complacent in the current conditions, your choice of broker is key and, finally, do not leave your PII renewal process to the last minute.

By John Kilmartin Head of Marketing, Hera Indemnity

CENTRAL LONDON LAWYER 43

Book Review

THE SECRET BARRISTER

Stories of the Law and How It’s Broken Author: Long Maintained Secret Macmillan/Picador ISBN: 978 1 50984 110 3 (hardback) ISBN: 978 1 50984 114 1 (paperback) www.panmacmillan.com

NOW OUT IN PAPERBACK! ARE THE CRIMINAL COURTS FLAWED? SERIOUSLY? ‘THE SECRET BARRISTER’ TELLS IT LIKE IT IS… NOW OUT IN PAPERBACK An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, “The Barrister”

his is a book that is destined to become a classic. Everybody’s read it — just about — at least those in legal circles or claims to have read it. And if you’ll excuse the cliche, it seems to have ruffled more than a few feathers. But all the better. As a scathing expose of the most conspicuous flaws in the criminal justice system in England and Wales,’ The Secret Barrister’ can safely be described as unique. Certainly, the power of the book derives overwhelmingly from the personal experiences and insights of its author, ‘the secret barrister.’ The anecdotes in it and the homely analogies range from the hilarious to the horrific. And as any barrister can tell you, whether practising in the criminal or civil courts, the revelations it contains are authentic. Although some readers (but not many) might disagree with some of the opinions expressed, the book has undoubtedly been a publishing sensation for its publisher, Macmillan, and Picador. The focus of the book is the criminal — rather than the civil — justice system and all those connected with it; from judges and magistrates to the court staff and the defendants themselves, not to mention the state of most of the court buildings; some growing old gracefully, others positively decrepit, but not quite crumbling into the dust just yet. Naturally there’s been a lot of speculation about who the ‘secret barrister’ is, with some barristers suspecting - because of the sheer number and variety of cases discussed - that this secretive, publicity-shy individual is more than one person. Nonetheless, the secret of the authorship of this book is a lot less important than what’s written in it. ‘I can understand,’ says our secret author, ‘why people might only think of criminal justice in the abstract,’ never anticipating any personal involvement in it, or having any familiarity with it whatsoever, except through watching courtroom dramas on TV. Big mistake, implies the author who warns, speculatively at least, that… ‘it is certain that at one point in your life, you or someone you love will be in a criminal courtroom’, whether as a juror, witness, or victim, or possibly even worse, someone accused of something you didn’t do. What you or anyone in any of these situations will hope for, or expect, is fairness, which according to this passionately disillusioned lawyer, is sometimes in short supply. One example is the way some magistrates tend to prefer to believe police testimony rather than that of the defendant, even when supported by several witnesses. In the words of the author,

44 CENTRAL LONDON LAWYER

the book’s basic aim is ‘to explore why criminal justice matters and to show how I think we are getting it so wrong.’ Offering much to contemplate and get furious about, the book will resonate equally with civil court practitioners, particularly over such annoyances as, says the author, ‘the matter of court listings (which) take little account of barristers’ availability’ — and on occasions when they do, there’s a climate of chaos, delay and adjournments ‘that often conspire to make you unavailable.’ And what about the now quite commonplace practice (or is it a necessity?) of switching cases from one court to another, with little or no notice given to the participants in a case, namely the lawyers and their bewildered clients who - on the same day - have to scramble into cars or public transport to reach the ‘correct’ court, which is usually miles away on the other side of town, or often in another town altogether. To put these matters in some sort of perspective, it is fair to say that no human institution is perfect. But it’s not good to have too many imperfections either. What is alarming about this book is that someone felt compelled to write it in the first place; someone who felt compelled to conceal his or her identity. But secret or not, the author is quite obviously a barrister, which does give the book its immediacy, authenticity and clout. While most people will live out their lives without coming up against the criminal justice system, the rule of law impacts on everyone and anything serious that threatens it is not a good thing. Recall for example, that the number of prosecutions has been reduced by about half. So how much criminal activity is going unchecked to the detriment of public safety? It has also been announced that the overall budget for the Ministry of Justice, has been cut by 40%. These are serious issues and it is encouraging that so many readers have come to view such developments with concern just by reading this book. Good thing that ‘The Secret Barrister’ is now out in paperback from 4th April 2019. ■

by Elizabeth Taylor and

Phillip Taylor MBE

of Richmond Green Chambers

Book Review

ANDREWS ON CIVIL PROCESSES WIFE’S ACQUIESCENCE IN HUSBAND’S TESTAMENTARY WISHES NOT SUSPICIOUS: Second Edition By Neil Andrews ISBN: 978 1 78068 684 4 INTERSENTIA LIMITED www.intersentia.com AN IMPORTANT STATEMENT OF LAW ON THE MAIN FORMS OF DISPUTE RESOLUTION TODAY An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator It’s always the case that the legal publishing firm, Intersentia, based in Cambridge, Antwerp and Chicago, delivers the legal goods for the legal profession. And they do so in spades here with this authoritative statement offering “a fresh and stimulating examination of civil justice, embracing court proceedings, mediation, and arbitration”. The book has been written by Professor Neil Andrews from the University of Cambridge. It’s a new edition which has been summed up brilliantly as “a critical and principled treatment of the subject made possible by extensive knowledge not only in the English methods and techniques but also in foreign civil procedural laws”. To us, the new edition remains one of the most important books which Intersentia publish and it contains both national and comparative law advice for all practitioners. In this substantial volume, Andrews guides the reader through the practice of dispute resolution in all its major forms for this new second edition at a time of change. He covers public and private, adjudicative and conciliatory methods in thorough detail. The ensuing 1,200 pages give both lawyers and laymen a complete picture of the court and arbitration systems, and of the developing technique of mediation at a time of substantial implementation in 2020s. Without doubt we consider that “Andrews on Civil Processes” gives many of us what we have been looking for, that is “an outwardlooking work”. We, as advisors who seek further leads, are given additional assistance with the detailed citations of primary sources and the rich bibliographical references to national and foreign works. It makes the work heavy in all senses of the word! “Andrews on Civil Processes” has developed into an authoritative statement on the fundamental and systematic treatment of its subject by its leading expert (Andrews). He offers us an acute observation in the preface of why this book has now appeared in a new edition stating that “universities and the legal profession and judiciary must continue to work together in the common cause of supplying a rich

education and achieving a critical perspective on legal practice”. It goes without saying that this book will provide a valuable resource on the changing civil processes we face in the next decade The work has been fully revised and updated for the 2nd edition and it remains an essential work of reference for litigation advisors, judges, commentators, and students. We do make special reference here to the increasing support the courts give to mediation and arbitration as both are nearly always selected as an alternative to the court processes. As many non-resident participants now choose to conduct arbitration in London or bring proceedings before the English High Court, (particularly the Commercial Court), we are given the clear and wellordered structure of “Andrews of Civil Process” to assist us by Intersentia. We feel that the book will also of interest to the lawyers beyond just the jurisdiction of England and Wales to cover nonEnglish practice. This second edition of this hardback book was first published on 26th April 2019. The author states that he sent his manuscript to Intersentia based on WLR case law reported no later than 4th May 2018. However, Professor Andrews says it has been possible to make further changes to reflect developments which have emerged before March 2019, so we have a very up to date statement whilst we prepare for further changes to the civil processes in 2020 and beyond. ■

by Elizabeth Taylor and

Phillip Taylor MBE

of Richmond Green Chambers CENTRAL LONDON LAWYER 45

Book Review

THE LAW OF INDUSTRIAL ACTION AND TRADE UNION RECOGNITION Third Edition By John Bowers QC, Michael Duggan QC, David Reade QC and Katherine Apps ISBN: 978 0 19882 151 9 OXFORD UNIVERSITY PRESS www.oup.com INDUSTRIAL RELATIONS AND THE LAW: THE DEFINITIVE TEXT NOW IN A NEW THIRD EDITION FOR 2019 An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, “The Barrister” ‘Industrial action’ used to be called ‘strikes’ way back when, in the seventies and eighties. And sure enough, the precursor to this third edition of a now long established and definitive text which was called “The Modern Law of Strikes’ and published 1987. The evolution of the title is significant. It does reflect the changes that have taken place “vis a vis” trades unions in the last four, almost five, decades. As Burton J mentions in the Foreword, ‘trade union recognition… has once again taken central stage,’ adding that, in his view, this book contains ‘the first detailed consideration of ‘the new statutory scheme by reference to the cases reported on the CAC’s website.’ ‘Labour law is dynamic,’ say the four co-authors as they describe ‘the balance which the law endeavours to achieve between the right of collectively organised labour and the employer (which) has been the subject of criticism from both sides of the political spectrum.’ Published by Oxford University Press (OUP), the book provides a noteworthy introduction offering the busy reader a succinct, but incisive overview of the developments in labour/employer relations over the past thirty years. In this context, the following point is made, namely that ‘one of the most persistent causes of strikes over the years has been the request for trade union recognition,’ into which the law has stepped via key legislation, to provide a peaceful means of settling such claims. An even shorter summary at the end of the chapter provides a brief but hard-hitting review of ‘the State of Things in 2018’, supported by some revealing statistics, most indicating, to a considerable degree the decline of trades union membership and therefore trades union power, although a resurgence should not be ruled out, say the authors, in the event of a Corbyn-led government. While it is irrefutable that developments, good or bad, within the trades union movement are inextricably linked with politics —

46 CENTRAL LONDON LAWYER

parliament being the law-making body — the commentary in this book is objective and politically neutral covering, as it does, virtually all the topics relevant to this area of law. The chapter headings themselves indicate a thorough and authoritative examination of a formidably wide range of difficult issues. ‘Industrial Action and the Individual Contract of Employment’, and ‘Liability for Strikes: The Economic Torts’ are just two examples. Further chapters examine trade dispute immunity, picketing, unfair dismissal, employment protection rights, injunctions and more. Two chapters are devoted to balloting, a matter of considerable controversy over the years. It’s in the latter part of the book that trades union recognition is analysed in depth and detail over at least three chapters, plus there’s a chapter on de-recognition. Distinguished by its clarity and readability, this new and updated third edition of this classic text — noted for its authority and reliability — is an essential tool of reference, not just for lawyers and the judiciary, but for anyone involved the trade union issues, from trades unions themselves (obviously) to employers (certainly) to arbitrators, mediators and conciliators. Indeed, researchers in any sphere will find very useful, the extensive tables of cases, legislation, statutory instruments, treaties and conventions and codes of practice. The table of contents is fortunately, very detailed as is the index. Also note the appendix which contains sample forms and precedents. The book is up to date as of 10 October 2018. The date of publication of the third edition is 20th February 2019. ■

by Elizabeth Taylor and

Phillip Taylor MBE

of Richmond Green Chambers

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