LONDON CENTRAL
THE CITY OF WESTMINSTER AND HOLBORN LAW SOCIETY
MAY 2018
Don’t Forget! The Legal Charities Garden Party 14th June 2018 6-8pm, Gray’s Inn, London
Inside this issue:
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H ■ Wills and Probate ■ Mediation ■ Brexit ■ News
The City of Westminster & Holborn Law Society
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ADVERTISING AND FEATURES EDITOR Anna Woodhams DESIGN AND PRODUCTION MANAGER John Barry ACCOUNTS DIRECTOR Joanne Casey
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MEDIA NO. 1578
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MAY 2018 © 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. DISCLAIMER 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.
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Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice. COVER INFORMATION
Cover image: Gray’s Inn, London, venue for The Legal Charities Garden Party, 14th June 2018, (Credit © Gray’s Inn, London)
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THE PRESIDENT’S FOREWORD COUNCIL MEMBERS WESTMINSTER & HOLBORN EVENTS JLD (Junior Lawyers Division) INTERNATIONAL CWHLS ARTICLES STAMP DUTY WINE COLUMN WILLS AND PROBATE CONVEYANCING FOCUS
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President:
MEDIATION FRAUD SOFTWARE BOOK REVIEW
Coral Hill Coral.Hill@law.ac.uk
Hon Secretary: Laura Uberoi laura.uberoi@farrer.co.uk Editor:
Ivan Ho IH@hunters-solicitors.co.uk 020 7412 0050 Please send all member queries to cwhlawsoc@gmail.com https://www.linkedin.com/groups/12087037 @CWHLawSociety
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Introduction
THE PRESIDENT’S FOREWORD I am delighted with the interest in our recent events, both the Justice talk, held at Farrer and Co, as well as the excellent talk by one of our members, David Greene, on the legal implications of Brexit.
oth of these events have been reviewed by junior members of the Society on page 11. Looking forward, we have events to cater for all, from a property seminar to wine tasting and of course there is a great deal of activity surrounding the Legal Charities Garden Party. This will take place on 14 June on the lawns of Gray’s Inn. If anyone is interested in arranging to have a table for their firm or chambers, please let us know. Of course sponsorship opportunities for this charity event are also available. All our events are listed on page 6 and will also appear on our website. Please note that the visit from the Milan Bar has moved to October. The Milan Bar choir will sing in Temple Church on Friday 19 October and this will be the start of regular visits from our fellow lawyers in different jurisdictions. The Barcelona Bar have also been in touch about similar arrangements which we hope to put in place for 2019. The Society has been a staunch member of the Federation of European Bars for some years but, of course, it is not necessarily convenient for members to visit other jurisdictions. However, we hope the links will grow stronger with visits to us in London, so that many more members can have the opportunity of becoming involved in these contacts, for social and business purposes. Sara Chandler, Past President of this Society and current President of the FBE gives more details on the international perspective on page 12.
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We have now booked the venue for the annual Society dinner on Tuesday 6 November. It will be at the magnificent restaurant, Bank Westminster at 45 Buckingham Gate. If you look at the website, you will see there is a beautiful setting with a glass-covered restaurant looking into a courtyard. We will be working on the details and will notify everyone as soon as the tickets are on sale. Simon Davis from Clifford Chance will be the Vice President of the Law Society at that time and will be attending with Bob Nightingale MBE, Head Fundraiser for the London Legal Support Trust. Please do save the date in your calendars. On the more organisational side, the officers have been working on a number of initiatives for the Society relating to updating the website, organisation of our data, banking arrangements and events. Particular thanks are due to LPC students Ana Frith and Sundev Panesar for their assistance
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to the officers. As I am sure everyone is aware, The General Data Protection Regulations have meant that all organisations have been busy ensuring they comply. For the Society, we have completed an audit of our data and intend to work on a suitable privacy policy and provisions on how the data is stored, deletion policy etc. If at any time, someone decides they do not want to receive emails from the Society please do email the main email address cwhlawsoc@gmail.com. If anyone is interested in getting more involved in the Society feel free to contact me for a general discussion. There are plenty of initiatives to suit different people. Two sub-committees recently revived are the Membership Development Committee and the Education and Training Committee. As with all our committees, members are welcome to attend initially as observers. We have had an excellent response for joining the Pro Bono and CSR Committee and will shortly announce the chair. Finally, I am pleased to welcome Anthony Seymour from Pothecary Witham Weld who has joined the main committee and will be sharing the treasurer’s work with me, until we have a volunteer for this officer role. Let's hope we continue to have this sunny weather for the London Legal Walk. Stewart Title is supporting us for this event and will be providing reusable water bottles. Do please contact Hannah McCrindle to sign up. Look forward to seeing you there.
Coral Hill PRESIDENT
Council Members
City of Westminster and Holborn Law Society Council Members The Society has a significant say nationally as we have a total of eight Council Members within our main committee. This includes three representing Westminster (Jeffrey Forrest, Edward Mace-Dare and Nehal Vasani), two for Holborn (Fraser Whitehead and Jonathan Wright), the Junior Lawyers Division representative for those with 0-5 years PQE (Laura Uberoi), the Voluntary sector position (Professor Sara Chandler QC (Hon)) and International Practice (David Greene). Council members can be contacted through constituencycomms@lawsociety.org.uk
Edward Macey-Dare
Nehal Vasani
Council Member for Westminster
Council Member for Westminster
After studying Ancient History & Archaeology at Durham University, I converted to law at the College of Law, Guildford, before training at Brown Cooper in Holborn. I qualified in 1996, becoming a salaried partner there in 2001. In 2002, Brown Cooper merged with Monier-Williams & Boxalls and we moved to their offices in Lincoln’s Inn Fields, before merging with Lee Bolton & Lee in 2008 to become Lee Bolton Monier-Williams. Having been a chorister at Westminster Cathedral Choir School in the 1970s, my return to Westminster felt very much like coming home and I have been happily ensconced in Sir George Gilbert Scott's iconic gatehouse (which stands at right angles to the Abbey and has been home to Lee Bolton since the 1850s) for the past decade. Given Brown Coopers’ links with The Holborn Law Society and Lee Bolton’s links with The Westminster Law Society, when the opportunity arose to become involved with CWHLS, I jumped at the chance. I was President in 2015/16 and my aim was to revitalise the Society as best I could; the fact that I achieved a full house at Vintners' Hall for our annual dinner is hopefully testament to the fact that I was successful, at least to a degree. In early 2016, a casual vacancy arose on the Law Society Council to represent the constituency of Westminster. Given that I was already immersed in law society politics at a micro level, I decided to take the plunge and sample life at the macro level. I was duly elected in February 2016 and re-elected in July of the same year (this time for a 4-year term). My aim is to support solicitors in my constituency and, in particular, to encourage them to re-engage with the profession at all levels. Please do get in touch. constituencycomms@lawsociety.org.uk
I am a solicitor and higher rights advocate specialising in litigation. As a trainee solicitor in a high street practice, I quickly recognised the benefits of being involved in my local law society. Friends already engaged with their local societies introduced me to the idea and I admit that I was sceptical at first but I was quickly convinced! Joining my local law society allowed me to become part of a wider legal community of lawyers from a wide variety of specialisms and firm sizes. It broadened my awareness of the issues that affected the profession generally and gave me perspective on matters I thought only affected my firm or locality. In 2009/2010 I joined the JLD committee of The West London Law Society as I wanted to be involved on an organisational level. I held various positions including President and Honorary Secretary and now continue as their Sponsorship Secretary. Engagement with colleagues in London was important to me and through collaboration with other local law societies I got involved with City of Westminster and Holborn Law Society (CWHLS) who invited me to stand for one of the two council seats for the Westminster constituency. Through my local work and liaison with The Law Society (TLS) Chancery Lane I was aware of the work of their Council and I felt that being a part of that would allow me to effect real change for the profession. I relished the idea of being able to advocate on behalf of my colleagues at the highest level of TLS and be part of the debate and the change. I believe that as CWHLS’ council member it is important not only to be their connection to the main organisation but that I should also be involved with them at the coal face. Getting involved in events and meeting people personally often cannot be substituted. Since being on Council I have become a member of the scrutiny and performance review committee and the council conduct committee. Though this means more volunteering hours the value of being immersed in all levels of the law society to me is invaluable and makes me a better advocate for our members. I am excited to be involved in the upcoming round tables on equality and diversity initiated by TLS’s incoming president Christina Blacklaws and look forward to meeting some of you there. Whilst I have worked hard over the last 3 years and made headway on a number of matters at TLS I hope to be re-elected for another term as there is much more ground to cover and I hope to assist the Society and my Council colleagues with the bedding in of the new governance structure. As ever my role is to represent you, our members, so please feel free to get in touch! nvasani.westminster@yahoo.co.uk
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Westminster & Holborn Events
EVENTS 2018 17-19 May
FBE Congress Bologna http://www.fbe.org/event/general-congress/ Members book through the FBE website but please let the committee know if you are attending so arrangements can be made for CWHLS members to liaise.
21 May
London Legal Walk This sponsored walk takes place annually for a range of charities through the London Legal Support Trust. In 2017, 12 000 people walked raising £800,000. Many firms organise their own walk but if you would like to join the CWHLS group you would be most welcome, whether you are a member or not. The walk ends at The Law Society with refreshments. Please contact Hannah McCrindle cwhlawsoc@gmail.com We are very pleased to receive sponsorship for this event from Stewart Title.
12 June
Property Seminar 16 High Holborn, London, WC1V 6BX This event is being arranged in conjunction with Index Property Information. The speaker is Andrew Waddell, the Managing Director of Winslows Tax Law, who provide specialist tax support for law firms. He will be discussing the application of the 3% SDLT surcharge on the purchase of additional residential properties. This is topical as it has led to some professional negligence claims. In an interactive session, a series of transactions will be considered to highlight when the surcharge is payable.
14 June
Helping You Achieve Your Goals All businesses work within their own framework. I show business owners how to use a “6 Step System” which is a very structured framework and will deliver results within six months. It is simple yet very effective. The aim of the coaching system is to identify the strengths and weaknesses in a business and start by working on the weaknesses or challenges first. Only then do we move on to other areas of the business that could be improved even further. Some of the areas the one to one coaching programme covers is, time management, marketing, financial management, operational systems, staff recruitment and team building. As we know, lawyers trade time for money which limits how much they can earn. Putting in place the right people and systems in place enables partners to grow the business whilst doing only the work they enjoy. How many firms test and measure all aspects of their business? The only way to make objective decisions is by looking at your numbers. It is true to say that what you measure gets managed. The “System’ I use is based on testing and measuring everything.
Legal Charities Garden Party, Gray’s Inn 2018 will be the 50th anniversary of this traditional and much-loved garden party 6 -8 pm. Tickets will be available through the dedicated website http://www.lcgp.org.uk/
Early September
Investment Advice Seminar Being arranged in conjunction with Strabens Hall. Details to be confirmed
18 – 20 October
Visit by the Milan Bar The International Committee is co-ordinating a visit from the Milan Bar which will include the Milan Bar choir singing in Temple Church on Friday 19 October.
30 October
AGM 6 November
Annual Dinner This black tie evening will take place in a stunning restaurant in Westminster. We will have two guests. Simon David from Clifford Chance, who will be the Vice President of The Law Society and Bob Nightingale MBS, Head Fundraiser for the London Legal Support. 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
The Law Society’s Excellence Awards are back for 2018 The Excellence Awards are back for 2018 and are going to be the biggest and best yet. They showcase excellence demonstrated by outstanding firms and individuals across the legal profession in England and Wales. Does peer recognition matter to you too? “I was absolutely delighted to win the award. It was particularly well received being a criminal practitioner, because we certainly don’t do things to receive personal recognition but are driven by our desire to see that justice is done.� Zoe Gascoyne, [at the time of her entry] Quinn Melville Solicitors – Winner, Solicitor of the Year – Private Practice 2017
Don’t miss out This year your chances of recognition have increased as several new categories have been introduced, including Law Firm of the Year for Small, Medium and Large firms, as well as Sole Practitioner of the Year. The new awards are specifically designed to champion the best and brightest firms of all shapes and sizes.
“It meant a lot to win the Excellence Award in Pro Bono – for us it’s a useful way of communication both externally and internally about the impact of our work.� Paul Yates, Head of Pro Bono, Freshfields Bruckhaus Deringer LLP – Winner, Excellence in Pro Bono 2017
You have until Friday 25 May 2018 to enter this year's Law Society Excellence Awards, which will take place on Wednesday 17 October 2018 at the exclusive Grosvenor House Hotel on Park Lane.
“Us smaller firms have an equal chance‌excellence isn’t necessarily connected with big firms but with the quality of what you do.â€? Hugh Adrian Scott Jones, Managing Partner, Hugh Jones Solicitors – Highly Commended, Excellence in Private Client Practice 2017
Our committees
• Anthony Seymour
If anyone is interested in attending committees as an observer to understand more about the Society please let the President or the chair of the relevant committee know.
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here is a new member of our main committee, Anthony Seymour from Pothecary Witham Weld. Anthony is a Solicitor in the Property Department and acts for Charities, Company and Private Clients and deals with Commercial property, Landlord and Tenant and Residential Conveyancing. He also specialises in Leasehold Enfranchisement. He has worked at established City Firms and was for many years a Partner in the Property Department of a Central London Law Firm. Anthony was a Councillor in the London Borough of Harrow for sixteen years and has also been a School Governor. He is a member of the University of Bristol Alumni Association London Branch Committee and holds a Masters Degree in Law from Kings College, University of London.
Check out some fascinating case studies from some 2017 success stories and see how the recognition has impacted their firms, visit: lawsociety.org.uk/excellence-awards You can submit your nomination before Friday 25 May 2018 here: lawsociety.org.uk/excellence-awards
PROPERTY INFORMATION
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Treasurer Vacancy We have a vacancy on the main committee for a treasurer, one of the officer roles. Currently, this work is being covered by the President with assistance from others including Ana Frith, a student member. If anyone is interested in taking up this role in the future, please contact the President for a discussion.
T: 0 E: ORQGRQQZ@indexpi.co.uk W: www.indexpi.co.uk
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Westminster & Holborn Events
Thousands will walk for justice in London on 21st May
Last year over 12,000 people, the majority of them lawyers, walked to raise funds for free legal advice services in London and the South East. The walk raised over ÂŁ800,000 to promote access to justice for the most vulnerable.
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he annual London Legal Walk has attracted the support of the whole of the legal profession who are fundraising to enable colleagues in advice agencies, local Citizens Advice and Law Centres to continue to help people access vital free legal advice. The people that the advice centres help include families facing homelessness, elderly people requiring community care, trafficked women and children, disabled people, refugees, people who are facing unemployment and those with mental health problems. These vulnerable have suffered most during the recession. Meanwhile, cuts in civil legal aid and council grants have made access to free legal advice in the capital much scarcer. Legal Aid firms in the high street have diminished rapidly, some advice centres have closed and most others have had to severely reduce casework staff. Lawyers from all parts of the profession recognise the need for legal help for the vulnerable and come together to raise funds. The most senior judges walk side by side with law students; corporate lawyers and QCs with high street solicitors and caseworkers working in front-line advice centres. Many in-house lawyers from multinational companies will be walking.
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President of the Law Society of England and Wales Joe Egan says, "Each year thousands of solicitors and barristers across the UK take to the streets to raise money for charity. The London Legal Walk is a highpoint in the calendar and it is vital for raising money for organisations that provide free legal advice. This fundraising effort means a hugely diverse range of people get vital advice helping them face frightening legal situations. Those benefiting from the advice are vulnerable and would be unable to afford this assistance - and remember those least able to afford legal advice often can be in the most urgent need of it! Solicitors and the wider legal profession are committed to helping them." The walk starts and ends in Carey Street, WC2A - behind the Royal Courts of Justice. The walkers set off between 4.00 and 7.00pm - lead walkers will be available for photographs between 5.00 and 6.00pm The London Legal Walk is sponsored and supported by the Law Society and Lexis Nexis For more information, visit www.llst.org.uk or contact: Bob Nightingale on 01372 810466 or bob@llst.org.uk
Westminster & Holborn Events
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he much-loved Legal Charities Garden party is rapidly approaching. The City of Westminster and Holborn Law Society is hosting this and celebrating the garden party’s 50th anniversary in the beautiful surroundings of Gray’s Inn. The event brings together the legal community from across London where we can all enjoy a relaxing evening of Champagne and canapés on the lawns of Gray’s Inn. The surplus from the garden party is donated to the legal charities: LawCare, SBA (Solicitors Benevolent Association), The Barristers Benevolent Association, Institute of Barristers Clerks Benevolent Fund, United Law Clerks Society and CILEX (Chartered Institute of Legal Executives) Benevolent Fund. Each of these organisations works to support lawyers in need. Tickets will be on sale through the dedicated website http://www.lcgp.org.uk/ Sponsors or those wishing to set up a table at the garden party should contact us on cwhlawsoc@gmail.com and we will forward requests to the appropriate person.
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JLD (Junior Lawyers Division)
Is youth wasted on the juniors? Most of us will be used to the terms ‘young’ and ‘junior’ lawyer being used interchangeably in the workplace. However, this is based on the incorrect assumption that those who are new to the profession are young in age. n first sight it may appear to be another lawyer becoming frustrated with a simple matter of semantics, but in reality confusing the terms serves to mask some of the biggest issues facing our junior lawyers; mental health and wellbeing, access to the profession and age discrimination. Last year the average age of a newly qualified solicitor admitted to the roll in England and Wales was 29 years old. There are many reasons for the increasing age of our new solicitors and I do not propose to go into them here. Suffice it to say that the statistics show that our newly qualifieds are no longer the 21 year olds straight out of university – many have been successful in previous careers, qualified into law through less traditional routes and have child care responsibilities. Encouraging diversity in the profession In order to encourage the best people into the profession, including those who can bring great skills from previous careers, we need to break down any perceived barriers. I am frequently contacted by individuals who are considering a career change to law but are fearful that they are ‘too old’ because they would not fit into the ‘young’ solicitor category. So often organisations do not realise that just using these two words on their publicity materials can instantly deter excellent applicants – all too often I have seen well-meaning websites promoting the excellence support offered for their young lawyers or networking events with intermediaries for young lawyers. This will also hamper business development objectives within a firm. It needs to be recognised that many junior level contacts within intermediaries and clients will be of all ages and will simply be looking for opportunities to associate with others at their level, regardless of youthfulness.with Lady Hale. Mental health and wellbeing The Junior Lawyers Division of The Law Society ran their second Resilience and Wellbeing Survey for junior lawyers (those up to five years PQE) this year; last year 90% of respondents stated that they had experienced stress in their role, with 26% of those experiencing severe/extreme levels of stress. Coupled with the fact that 50% of respondents thought that their employer could do more in relation to
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mental health at work, it is clear that our junior lawyers are not receiving the levels of support required. Aside from the technological advancements and our 24/7 era placing greater challenges at the feet of our junior lawyers, these results are not surprising when you consider that the demographic of the junior lawyer has changed over the past few decades - most junior lawyers are now grappling with the fact that it has taken them longer, and a larger amount of debt, to qualify. Those who have made a career change will often have taken a significant pay cut. Moreover, increasing numbers of juniors have child-care responsibilities. It has always been a given that becoming and remaining a solicitor is exceptionally hard work, however our junior lawyers are facing greater stresses than ever before and many are leaving the profession as a result. We must all speak up I regularly take issue with people and organisations when they refer to ‘young’ lawyers and have sent countless letters of complaint to those adopting this term. The Equality Act should prevent age limits being imposed for activities aimed at junior lawyers, however at the same time we have to be alert to these and ensure that our new solicitors are not being left out of events which will assist with their careers, just because they do not fit an age bracket. As a profession we are increasingly aware of the need to support our number. This is key to ensuring that we retain a diverse and excellent profession, particularly those who are new joiners. A simple way to ensure that we are clear about the support required for those who are the future of the profession is to rid ourselves of the out-dated term ‘young’ lawyers and the practices associated with it.
Laura Uberoi Honorary Secretary for the City of Westminster & Holborn Law Society. Associate at Farrer & Co and a Law Society Council Member.
Daniel Watson aniel is a Private Client solicitor at Hunters incorporating May, May & Merrimans, having trained with the firm and qualified in November 2017. His practice covers wills, tax and estate planning, trusts, powers of attorney, and probate and administration of estates. He is also an active member of the FrancoBritish Lawyers Society and the British Institute of International and Comparative Law Alumni Network.
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Daniel took up the role of Chair of the Westminster and Holborn Junior Lawyers’ Division in January 2018 sits on the main committee. The JLD is for any solicitors up to 5 years PQE. Daniel plans some informal social gatherings for JLD members and if you would like to get more involved please contact Daniel at dmw@hunters-solicitors.co.uk
JLD (Junior Lawyers Division)
What Rhymes with Article 50? Run to Dublin Edwin Coe hosts ‘Brexit Implications for Lawyers’ with speaker David Greene
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erhaps the biggest difference between this article and the rest of the media is that this article will not paint Brexit as the next ‘Y2K’, nor will there be a doomsday clock attached as a .JPEG. There will be no grim paintings of the UK and the EU signing preliminary divorce papers either. What this article will contain, instead, is every lawyers’ biggest strength. This strength is the ability to anticipate, adapt, and advise their clients on the current commercial climate in which they operate. David Greene, Senior Partner of Edwin Coe, led the talk on ‘Brexit Implications for Lawyers’. Greene was named Legal Personality of the Year 2017 by The Gazette and chairs the Law Society Brexit Task Force. As an expert in the field, his message was clear. With this period of uncertainty, it is inevitably lawyers who are at the forefront of unravelling what exactly Brexit means, both in terms of legislative and commercial implications. This means we can prepare clients, and the wealth of new clients looking to lawyers for advice, in the best way possible as more and more information becomes readily available. In describing Brexit, Greene used the analogy of unplugging various tangled cables. It is not simply a political decision, indeed, every last cable connecting the UK and EU has to be considered. For example, what role will the Court of Justice of the European Union take when it comes to the police and security elements? How much emphasis should be placed on free trade deals? What of the free movement of people?
in reality. The transition period can be relatively easily agreed, but it is the process after this that is difficult. In the event of a hard Brexit, it appears that Dublin will be the new home for lawyers and the provision of services. Multiple companies and firms are taking it upon themselves to develop a contingency plan in the heart of Ireland. Whilst there are varying reasons as to why this is the case, one reason in particular is that “Canary Dwarf” will be the only common-law jurisdiction residing in the EU post-Brexit. A hard-Brexit is typically displayed as a doomsday scenario, but Greene’s wealth of experience and information instils confidence into lawyers for the future. In closing, Greene sent a powerful message. He stated that we come into this world as it exists, Brexit is simply a change in the nature of how we operate and that it is all too easy to look into the past with a rose-tinted lens. What we should do instead, is look to the future head on and adapt to the changing commercial climate.
Sundev Panesar LPC Student
It is clear that Brexit does not simply mean leaving the political union. Individuals in a position of power whom are advocates of a swift Brexit are primarily after ‘BRINO’ (Brexit In Name Only) but this means very little
CWHLS and JUSTICE: Challenges facing the English & Welsh justice system. On Thursday 1 February CWHLS and JUSTICE gathered senior figures from across the profession to discuss the challenges facing our justice system in the 21st century. his inaugural event was hosted by Farrer & Co in their Peacock Room, the historic location where the Charter of the Bank of England was sealed.
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Attendees were introduced to the important work that JUSTICE carries out to protect individual rights and address the inequalities in the UK justice system. Andrea Coomber, Director of Justice, whose career has spanned grass roots organisations in India, lecturing on international equality law and Director of Interrights, provided the keynote speech. In honour of the late Sir Henry Brooke, whose lifelong commitment to rule of law was celebrated by attendees, Andrea chose to speak about the struggles facing the UK justice system in the face of legal aid cuts, the future of legal aid and how city law firms might make a positive contribution.
The event was well attended by a variety of guests including the President of the Law Society, Joe Egan, senior figures from educational institutions in our area, presidents of other local law societies and senior partners from across our membership. This was an invaluable occasion that provided guests the chance to reflect on the wider issues facing the profession and on what can be done by uniting together to protect a strained legal system that has long had a reputation for being fair and accessible. For more information please refer to https://justice.org.uk/
Katjana Cleasby Trainee Solicitor at Farrer & Co and member of CWHLS Junior Lawyers Division CENTRAL LONDON 11
International CWHLS
CWHLS on the international front In an era of apparent retreat from international fields, engendered by the polarising effect of Brexit, what can solicitors do to enhance their international practice? Is this important to local law societies? • Coral Hill with Sara Chandler FBE President
he CWHLS International Committee has always maintained a strong presence in international networks and undertaken international activities. These have varied over the years and mainly focus on the twinning arrangements we have with the Barcelona Bar and the Berlin Bar. These twinning arrangements have enabled CWHLS to maintain links with lawyers in both cities which have proved useful when members need an overseas lawyer to assist their own clients. This sometimes means receiving expert advice on local procedure and relevant law and such connections broaden international practice. In addition, the twinning arrangements means that CWHLS receives invitations to events in Barcelona and Berlin which are valuable for networking and of course great ways of enjoying the cities in the company of local lawyers.
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Triggering a mediation and complying with Practice Direction made easy!
ADR Notice
There is also a network at international level of law societies and bar associations who support lawyers at risk, for example, in Turkey and Colombia. Recently the Law Society of England & Wales, together with the German national bar, organised a conference in Berlin on the effectiveness of remedies in the European Court of Human Rights with reference to applications from Turkish citizens. Past President of CWHLS, Sara Chandler, attended this conference and met up with German colleagues who defend human rights. More than a thousand lawyers in Turkey are detained awaiting trial and 103 lawyers have been sentenced to long sentences in prison of over 11 years. For CWHLS members who are interested in defending human rights, there are opportunities for trial observation of lawyers’ trials in Turkey. In February, the current CWHLS President attended the Barcelona Bar events for the Festivities of San Raimon of Penyafort. These included a seminar on Trade Secrets: Protection and Enforceability, which was launched by FBE President and CWHLS Past President, Sara Chandler. During the ceremony to mark the admission of new lawyers and recognition of those who had completed 25, 50 or 75 years at the Bar, a speech by a Catalan politician ended in a protest by members of the Barcelona Bar who objected to the way the speaker criticised a Judge. Barcelona colleagues are living through a difficult time around the subject of Catalan independence. CWHLS is a member of the FBE (Federation of European Bars) and is invited twice a year to Congresses. This year there will be congresses in Bologna (17-19 May) with theme “New Families New Challenges� and in Warsaw (21-23 September) on “Privacy in the Digital Age�. More information can be found on www.fbe.org. All CWHLS members are welcome. For members who love music there is a concert in October by the choir of lawyers and judges from Milan who will sing in the Temple Church.
Launched by CEDR, ADR Notice is a free tool for lawyers to instigate mediation. ADR Notice not only benefits the case but also helps litigants (and those dealing with dispute referral clauses) comply with Practice Direction (e.g. PreAction Conduct and Protocols Part 8 and 9).
For more information visit XXX DFES DPN BES 12 CENTRAL LONDON
If you would like to have further information about CWHLS International, please contact the secretary to the committee: Anisha.birk@farrer.co.uk.
Monday 21 May 2018 From 4:00pm, Carey Street WC2A
Hannah McCrindle, e JVP of CWHLS on: cwhlawsoc@gmail.com hannah@expatriatelaw.com
Registered office: The National Pro Bono Centre 48 Chancery Lane, London WC2A 1JF
Article
Nicholas Ross
BRACELETS AND CHAINS
George Daly
In February 2018, the University of Law in Bloomsbury launched its Criminal Justice and Human Rights Forum. The aim of the forum is to invite guest speakers from firms, organisations and societies who contribute to the improvement of Criminal Justice and Human Rights both in the UK and around the world. he purpose of these is to share ideas, create discussion and possibly encourage people who may be interested to get involved with the various projects. At the launch event on 1st February 2018, the University invited their first guest speaker Mr George Daly to talk about The African Prison’s Project (APP). George was a senior lecturer at the University until he retired in 2010. Since his retirement, he has been heavily involved with the APP. The following is his personal account of the project and the work that he does. If you think you might be able to help out with the project, there are various email addresses at the end of his account.
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Small groups of prisoners, always with at least one member of staff learning beside them, took the courses. By this Summer the first student prisoners have graduated. The students who studied law set up as paralegals giving advice and taking cases for their fellow prisoners. The most spectacular successes were with the death penalty. Both countries retain the death penalty. In both countries the mandatory sentence for murder was death. As neither country has carried out executions recently, thousands of prisoners lived with their death sentence, as we say, hanging over them.
There can be few more challenging places on earth than a prison in Africa. Ten years’ ago, Kamiti Maximum Security Prison in Kenya and Luzira Maximum Security Prison in Kampala were in some of the top ten lists of the world’s worst prisons. In 2008 Alexander McLean, then a law student, was working for Hospice Africa on his gap year in Kampala. He was sent into Luzira prison to provide some anti-retro viral drugs for prisoners with AIDS. What he saw there changed his life. He was determined to transform the lives of all those caught up in a dehumanising and dysfunctional criminal justice system. He set to work and founded the African Prisons Project. APP now works to bring hope and dignity to all those in prison in Uganda and Kenya. Its spirt and its practices can be adopted as models throughout the world.
Prisoners trained by APP took cases in both countries on behalf of hundreds of fellow prisoners arguing that the mandatory death penalty was unconstitutional. They won their cases. Literally thousands of people had their death sentences reduced or overturned. Susan Kigula our first graduate prisoner in APP now Uganda became a national figure and has just been works to bring released and acts as an advocate for APP.
hope and dignity to all those in prison in Uganda and Kenya.
At first APP set up literacy classes, libraries, health clinics, sports activities and choirs. However, it soon became clear that what was most needed by prisoners, staff and all involved in the legal system was a better understanding of the law and how to use it to achieve justice. Some facts about both Kenya and Uganda: there are about 100,000 prisoners; the prisons are overcrowded with three times the nominal capacity; well over half the prisoners are on remand and have not been convicted of any crime. Over 80% are illiterate. Over 90% have had no legal representation. Many of the women in prison were acting in self-defence. The problems with the systems included: minimal awareness of rights; very long sentences; outdated and poorly drafted laws; lack of trust in the police; very slow court procedure. APP started to run classes enabling a first wave of prisoners to study law by taking a distance learning law degree with London University. 14 CENTRAL LONDON
Now at APP we are trying to set up more formal law academies within as many prisons as possible in the two countries to transform the quality of their criminal justice system. There are numerous ways in which lawyers and law firms in London can help with this work.
My own involvement started in 2013. The experience will resonate with many London lawyers whose children go on school trips and gap years. For all of us involved it was a life-changing day. I learnt more in a few hours than I have learnt in a lifetime.
My wife Angela was Head of Cranbrook School in Kent. In the summer we sometimes took pupils on trips to Africa to work on projects supported by the school. That summer we were with 14 6th form students in a remote part of Western Tanzania where we were spending a month working on projects in villages. We were travelling along a very remote road near Utimule in the back of a truck with many local Tanzanians and the 16 of us. Ahead of us the road was blocked by two lorries. As we stopped we were met by a hail of machine gun fire. Five masked men swarmed onto our truck carrying AK 47s and machetes and lashing out until we all lay flat and still. We were beaten, searched, robbed and threatened with the machine guns firing often over our heads. One of the Tanzanians was stabbed in the back with a machete. It took months for Angela’s bruises to go. She nearly had her hand chopped off when she was at first unable to get her gold wedding ring off.
Article
We could not negotiate with the attackers because their only English was “No money – no life. Fxxk you - I kill you.” Our Swahili was good for our work in the village but not for this. The pupils from Cranbrook behaved with astonishing courage. No-one screamed or did anything to trigger a massacre. After about an hour another vehicle arrived and three of the gang jumped off to attack it. The driver unwisely argued and resisted. He was beaten up and then executed. After about two hours the gang were arguing about what to do with us. They had been expecting to find only locals on the truck. We presented an opportunity and a problem. One wanted to abduct us into the forest and try to get ransom money. The youngest one wanted to rape the women and girls. One wanted simply to finish us off and hide the bodies in the forest to slow down any investigation. Fortunately for us another vehicle appeared. The gang jumped off our truck firing as they attacked this lorry, which was probably on the road from a market in a nearby village. The oldest member of the gang, who had taken some pity on us, shouted to our driver to go. Our driver jumped back in and careered off into the forest and then back onto the road. No-one had been killed or raped inside our truck. A few days later the gang were caught. One had tried to change some British money in a bank and been captured. Under torture he gave up the other names. One of the gang had given Angela’s wedding ring to his wife. The police then murdered the leader of the gang. He had offered to show them where the guns were hidden.
They drove him to the forest where they said he tried to run away. His death with a back full of bullets was not investigated. The others confessed under torture and in court simply denied they were there. They all received 30 year sentences. While we were being held I resolved that if we survived I would do everything I could to help the people in that part of Africa. When we came back to Cranbrook, lawyer friends told me about APP. The villagers of Utimule gave us string bracelets to remember them by. We will never take them off. Contact email addresses at APP: georgedaly49@gmail.com sarahgough@africanprisons.org alexandermclean@africanprisons.org comms@africanprisons.org If anyone would be interested in contributing to the University of Law’s Criminal Justice and Human Rights Forum then please contact our Associate Professor Nicholas Ross at the following address: nicholas.ross@law.ac.uk
Nicholas Ross & George Daly
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Article
CAMBRIDGE ANALYTICA: WOULD GDPR MAKE A DIFFERENCE?
Jonathan Wright
In recent times, there have been a host of data protection breaches involving large organisations. The allegations facing Cambridge Analytica and Facebook could feel like nothing more than the next in a long line but, in a world where social media has become an intrinsic part of society, the alleged misuse of data of over 50 million Facebook users is a worry to everyone.
he Information Commissioner is an independent official whose role is to uphold information rights and ensure that data protection laws are complied with. The Information Commissioners Office (ICO) is able to investigate whether data protection laws have been breached, either by acting on complaints or from conducting proactive investigations on its own volition. The ICO has a number of powers available to it to obtain information and assess whether data is being properly and lawfully used or held.
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The Data Protection Act 1998 sets out the law which governs how data must be handled with the intention of protecting the public. But the law is changing in the next few months in the hope of making data protection obligations even more robust and increasing the deterrent by allowing much larger fines to those who cause data breaches. In May 2018, the General Data Protection Regulations (GDPR) come into force. These are being incorporated into UK law by the Data Protection Bill which is on course to receive royal assent within the same timeframe (it’s currently at the Committee Stage in the House of Commons). GDPR is extending the scope of what is considered to be personal data, such as including IP addresses and other forms of digital data which can be associated with an individual.
It is therefore not possible to comment on the facts of this case and whether Information Notices have been previously issued but, for the purposes of this article, we look at the hypothetical scenario of an investigation by the ICO where such Notices were issued and ignored as an illustration of the differences between the current law and that soon to be introduced by GDPR and the Data Protection Bill.
In the event of a breach, the fines have been substantially increased from the current maximum of £500,000 to £18million or 4% global turnover.
In the event of a breach, the fines have been substantially increased from the current maximum of £500,000 to £18million or 4% global turnover. So the data protection laws are getting more teeth and large organisations like Facebook and Cambridge Analytica need to pay attention in the same way that any smaller business which handles personal data will have to. There are weaknesses in the current legal structure which it was hoped would be strengthened by the incoming legislation. For example, the ICO is able to take various forms of regulatory action against an organisation, including the issuing of what is known as an Information Notice, which requires the recipient to supply the ICO with information for the purpose of assessing whether data protection laws have been complied with. However, the weakness in taking this action is that, although failure to comply with an Information Notice is in itself a criminal offence punishable by a fine in the Magistrates’ Court, the recipient of such a Notice cannot be compelled to disclose the material requested. Turning to the current case of Cambridge Analytica, it is not known what previous steps the ICO have taken in an attempt to get information from either that organisation or Facebook, but press 16 CENTRAL LONDON
reports suggest that the Information Commissioner is considering applying for warrants to obtain the information due to previous lack of co-operation. It is not public knowledge whether or not Information Notices have been issued and ignored. (It is assumed that they have not, otherwise criminal action could be taken against the organisation irrespective of whether the ICO then chooses to apply for a warrant).
The first thing to take into account is that GDPR is not retrospective. If a data breach occurs before May 2018, then the larger fines imposed by GDPR are not applicable. However, the failure to comply with any Information Notice issued in this period could see the organisation receiving a separate fine irrespective of any subsequent sanction imposed as a result of the data breach itself.
Had the investigation into any breach occurred on or after 25 May 2018, then the GDPR and the Data Protection Bill (as it is currently drafted) will remove the criminal sanction for failing to comply with an Information Notice and replace it with a monetary fine to be imposed directly by the ICO. The Information Commissioner has written to parliament at the committee stage to express concerns as to this change on the grounds that it is “likely to be less of a deterrent, as data controllers with deep pockets might be inclined to pay the fine, rather than disclose the information being requested.” If no further amendments are made to the incoming legislation, the effect of Information Notices may be eroded which will mean that the more intrusive, time-consuming and costly method of applying to the court for warrants will be more frequently required. Irrespective of what eventually plays out with the Cambridge Analytica/Facebook investigation, the fact remains that data protection is again at the forefront of public concern and the laws are changing to reflect this.
By Jonathan Wright Partner, Richard Nelson LLP
Article
Opting In, Opting Out: The Prospects for EU-UK Cooperation in Criminal Cases, Post-Brexit John Binns considers the impact that Brexit will have on criminal cases, and how the EU and UK might continue to cooperate in future. he UK’s impending withdrawal from the European Union poses a number of challenges, not least in the area of crime and security. Proposals to deal with the implications of withdrawal on the legal framework of the UK’s money-laundering and sanctions regime are now contained in the Sanctions and Anti-Money Laundering Bill 2017-2019, though it remains unclear whether there will be substantive changes to these rules. Meanwhile, the effect of withdrawal on the arrangements for cooperation in criminal cases between the UK and (other) EU member states is now also attracting some much-needed scrutiny.
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John Binns other criminal investigations, where the balance between the public interest in investigating crime and the liberties of individual suspects could arguably be redressed. The length of time the UK has taken to articulate a position on these issues is perhaps surprising, although the end result is not: Mrs May, just as she did when she was Home Secretary, has made it clear that the UK’s interests are in maintaining these cooperative measures as far as possible. Less clear however is how this can be done. To take the EAW as an example, although it would be open of course to the EU and the UK to agree to apply the scheme across their joint territories, there are a number of important details that would need to be agreed, including any role for the CJEU or, failing that, an alternative means of resolving disputes on the terms of the scheme. The terms of a similar arrangement between the EU, Iceland and Norway took some years to resolve, and includes exceptions for political crimes and extraditing nationals.
By way of background, the current arrangements provide for an unparalleled degree of cooperation between member states, to which the UK has (despite some initial reluctance) signed up. These include the European Arrest Warrant (EAW) scheme, which enables the simple and speedy surrender of individuals from one EU state to another for the purposes of criminal proceedings. This scheme has no requirements for dual criminality or to show a prima facie case, With respect to Europol, though there are existing arrangements and for some countries (such as Germany) represents between it and third (non-EU) countries that can be an important exception to the general rule against The length of replicated with relative ease, it would require some extraditing their own citizens. time the UK creative thought to design a mechanism to allow the UK Many of the broader arrangements for sharing evidence and intelligence in crime and security matters involve Europol, an alliance of police forces in EU countries, in which the UK currently plays a key role. A key facilitator of these arrangements is the common standard of data protection (DP) across the EU, subject to rules that are ultimately adjudicated by the Court of Justice of the European Union (CJEU).
has taken to articulate a position on these issues is perhaps surprising, although the end result is not
Notably, as measures made under the EU’s Justice and Home Affairs (JHA) pillar, all of the above were subject to an ‘opt-out’ for the UK, and a specially negotiated ability to opt back in to specific measures. Following a debate in which Theresa May (then Home Secretary) spoke forcefully in their favour, the UK decided to opt back in to all of the significant measures in this area in 2014. Since then of course, following the referendum in 2016, Mrs May, now as prime minister, has triggered the two-year exit process and said that, among other things, leaving the jurisdiction of the CJEU is one of the UK’s absolute ‘red lines’. The implication of this is that the UK’s involvement in all of the measures in this area, which relies on the CJEU’s jurisdiction and common DP standards, can continue only under a bespoke, and as yet unspecified, EU-UK agreement. As with many other aspects of Brexit, there is a panoply of potential debates about the merits of the existing arrangements, and the extent to which the UK should try to retain them when we leave. With respect to the EAW, there are some who would argue that any new arrangements with the EU should revive the requirements for dual criminality and a prima facie case, and/or cease to allow the extradition of UK nationals to the EU. With respect to Europol and data-sharing, there is the potential for debate about distinguishing between terrorist investigations (for which even the most ardent Brexiteer would argue for the maximum possible cooperation) and
to play a full role as a member of Europol, let alone anything approaching the leading role it plays currently. That has implications both for the funding and efficiency of joint EU/UK investigations, and for the effectiveness of Europol itself, which has long benefited from the UK’s leading role.
With respect to the sharing of data, though the UK may seek to have its DP standards considered equivalent to the EU’s, this is not inevitable and would be subject to ongoing review. Without that, it is impossible to rule out the possibility that intelligence and evidence relevant to crime and security, even terrorism, will be unable to pass easily between the EU and the UK (by contrast perhaps, absent a ‘hard border’ between the UK and EU, with the criminals and terrorists themselves).
There is perhaps no area of the EU-UK relationship better suited to the wry observation on Twitter of Luxembourg’s prime minister, who said of the UK: ‘They were in with a load of opt-outs. Now they are out, and want a load of opt-ins.’ For matters concerning the investigation and prosecution of crime, however, it does at least seem clear that neither the EU nor the UK sees any benefit in loosening ties; the challenge is to settle the detail of how to keep them close, and within an ever-shortening timescale. A recent report of the House of Commons’ Home Affairs Select Committee urged the government to act quickly to clarify its plans, as well as to reconsider the rigidity of its approach in this area with respect to the jurisdiction of the CJEU. Given the issues and the legal complexities at stake, that would seem close to a statement of the obvious.
John Binns Partner at BCL CENTRAL LONDON 17
Article
Silver Splitters As we all live longer, survive health scares and embrace retirement, the statistics show an increase in the number of older clients seeking a divorce. In this article we look at the particular issues affecting the older divorcee and the specific advice that might be required. Should the parties divorce? Divorce is not always the best solution for separating couples. Couples have often been separated for many years without formalising the end of their marriage. It may be that remaining married offers them greater pension or death in service benefits (although policies vary on what constitutes a permanent separation) or they may be strongly influenced by cultural, social or religious views on divorce. Finances can be regulated by way of judicial separation and/or separation agreements, although difficulties may arise in relation to pensions. If the parties decide to divorce after a lengthy period of separation without having resolved their finances, their financial claims will not be time barred but it was made clear in Vince v Wyatt [2016] that the passing of time will be a relevant factor and may reduce, or even eliminate, the financial provision to be made by one party to the other.
The change, and possible increase, in needs towards the end of life must also be considered. Longer life often means increased costs due to ill-health and nursing care costs. There can be a conflict between divorcing parties who may have expensive short-term needs versus potentially cheaper but longer term needs.
Pensions
It is important for family practitioners to appreciate the important issue of capacity when dealing with older clients. Capacity can vary according to the nature of the task in hand and can also vary day to day. The decision to separate is somewhat simpler and requires a lesser level of capacity than divorce. If a client lacks capacity, steps will need to be taken to ensure that a litigation friend is appointed to act on their behalf.
Since 2000 it has been possible for divorcing couples to share pensions. This has helped to obtain financial independence for couples during their retirement. The new rule allowing over 55s to access 25% of their pension fund tax free could provide greater flexibility. However, while a pension may have financially supported one household, it may not cover two. Older divorcees also need to be aware of the “pension gap syndrome”. This occurs when couples with a large age gap (e.g. 50 and 70), separate. A pension sharing order at the time of divorce would mean that the 70 year old would immediately lose out on pension benefits, by having transferred them to the younger spouse, while the 50 year old could not take any pension benefit until they were 55. There is currently some debate about whether it would be possible to defer the making of a pension sharing order to avoid such pitfalls.
Inheritance and Wills
Variations
A spouse who is considering divorce at this stage in their life is most likely to want certainty about how their assets will be distributed in the event of their death. It is important to clarify that a financial remedy order on divorce is not concerned with ensuring equal, or indeed any, provision for adult children by way of inheritance. Upon divorce the effect on a party’s Will is as if their spouse has died. However, it is important to fully clean break all financial claims to avoid a potential claim against the estate by a former spouse. At the younger end of the “silver” scale there may also be issues of anticipated inheritance coming to the parties and practitioners need to be particularly alert to relatives and/or assets in countries in which forced heirship rules apply.
Historically, courts have often made joint lives orders. There has been a gradual change of judicial thinking and many variation applications are now made to end joint lives orders. The longer the parties live, the more likely it is that those orders will need to be revisited. It is possible for capitalisation on a variation application to be dealt with by way of a lump sum, property adjustment order and, in divorces post 2000, a pension sharing order.
Capacity
Life expectancy, Duxbury and needs With increased life expectancy, and with older divorcees, the traditional Duxbury calculation for lifetime income is becoming out dated. Duxbury assumes that the capital will exhaust at the point of death and there is a risk the client will outlive their fund.
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“Silver” Nuptial Agreements Often older couples marrying want to ensure that any children from a previous marriage are looked after in the event of their death. Nuptial agreements can ensure that divorcees entering into a new marriage can protect their assets for their children rather than their new spouse, in the event that the marriage breaks down and there is a subsequent divorce.
Beth Mason (Associate) and Georgia Day (Solicitor) Family Department, Harcus Sinclair LLP
Article
When one door closes another door opens. Opportunities for Solicitors in Chambers
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aving qualified as a solicitor in the 1970’s and having enjoyed membership of The Law Society and, more recently, the Westminster and Holborn Law Society, I now find myself Master of a Livery Company, the Worshipful Company of Plaisterers and consulting with a prestigious barristers’ chambers in Lincoln’s Inn, namely Radcliffe Chambers. I served articles and practiced at Matthew Arnold & Baldwin in Watford for many years where I was elected and served as Senior Partner for eight years. I originally started my career in general practice including advocacy but later on specialised in property and town planning work. The role of senior partner was a varied one involving mentoring other partners, various aspects of firm management and building the firm. Having decided to cease practice but not wishing to retire from the law, I now undertake consultancy work and I am part of a team that strengthens chambers’ relationships with its instructing solicitors. This is very much in keeping with my previous role as senior partner except solicitors are now my clients! Not content with this alone I joined the Worshipful Company of Plaisterers (Plasterers in today’s language but in 1501, when its Royal Charter was granted, the word was spent differently!) some twenty years ago. My uncle was a decorative plasterer and thus the family connection helped. The London livery companies (now 110 of them) were originally guilds who regulated their respective trades. There is even a Worshipful Company of Solicitors. Nowadays many such companies are still involved with their trades. The reality now is that many members of livery companies do not necessarily have deep connections to their livery’s trade. Collectively the livery companies give £50 million to charities each year. So balancing the demands of the Plaisterers Company, such as hosting a charity event in the presence of the Lord Mayor, and my role in Chambers is both challenging and rewarding.
Solicitors in chambers are also becoming more prevalent. There are now a number of solicitors working in sets of barristers’ chambers in various roles ranging from clerking to management. At Radcliffe Chambers we have two solicitors namely myself as a business development and client relationship consultant and Fiona Fitzgerald, the chief executive. Being a solicitor in a set of barristers’ chambers certainly helps the relationship and understanding of what is required. Barristers have recognised this hence the increase in solicitors joining chambers. Closer collaboration between firms of solicitors and barristers’ chambers can only be good for the solicitors’ ultimate client. Whilst there are many similarities there are also differences. Radcliffe Chambers enjoys a remarkable history which can be traced back to the 19th century. 11, New Square was rebuilt after the Second World War but there has been ‘legal occupancy’ since 1691. Some heritage! Life in Chambers is very different to working in a solicitor’s firm. My role is very much liaising with solicitors and, it is always great to meet up with old friends from my practising years and indeed to make new ones. Having come from a property background in more recent years I have had to learn new areas of law in order to understand chambers’ offering. It has been fascinating to learn about such diverse areas such as probate wills and trusts, insolvency, and the more challenging area of pensions law. Although at the end of the day I am certainly not the expert the barristers are. At a time when many solicitors are considering retirement, I for one have had a new lease of life and, indeed, am probably busier this year than I have ever been. I have always found the law a rewarding occupation and long may that continue whichever side of the profession I am on. richard@radcliffechambers.com
Richard Hanney Radcliffe Chambers, Lincoln’s Inn.
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Stamp Duty
WHY IS STAMP DUTY LAW SO CONFUSING?
and could your clients be due a refund?
Stamp Duty Land Tax is commonly known as Stamp Duty or SDLT and was introduced in 2003. It was initially a relatively straight forward duty to calculate, administer and collect until Parliament started to make changes to it.
What if one house has an annexe, or detached property in the grounds?
Mr & Mrs Davies purchased a 3-bedroom house in June 2017 for £675,000. Attached to the house was a garage; the upper floor of which had been converted into a bedsit. The bedsit was not occupied on the purchase date but was suitable for use as self contained living accommodation. The couple did not own any other residential property and were advised to pay Stamp Duty of £23,750 on their purchase. We subsequently reviewed the purchase for them and confrmed the Stamp Duty charge should have been £13,750. Statutory reliefs and allowances were overlooked, and we were able to help the couple claim a £10,000 refund from HMRC.
There are complex rules surrounding the purchase of properties that include an annexe, basement flat, or other residential property in the grounds such as a detached holiday cottage, an apartment above a garage or even staff accommodation. Therefore, mistakes with the calculation are made and opportunities to claim statutory reliefs and allowances are overlooked. Take the following example:
We are more than happy to have a conversation with those that fear their clients have overpaid and want our help to assist with claiming a refund on their behalf. If you also have clients that are about to embark on a similar purchase please get in touch so we can ensure you advise your clients to pay the right amount of Stamp Duty. Not too much and not too little.
he first significant change was in December 2014 and a subsequent change came into effect in April 2016 when the 3% surcharge on the purchase of second homes and buy-to-let investments was introduced. These changes have created uncertainty and complexity when calculating the duty due and so overpayments arise. Overpayments can be recovered from HM Revenue & Customs (“HMRC”) provided a claim is submitted within the required time frame which is generally 13 months after the purchase date.
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Stephen Griffiths, Griffiths Allen Stamp Duty Advisers office@griffithsallen.co.uk
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Wine Column
Armit Wines... Exclusive Importers of 2012 Torre de Oña Martelo Reserva First introduced to the UK in the summer of 2017, Martelo is a new single vineyard reserve wine from Torre de Oña in Rioja Alavesa, which is part of the La Rioja Alta S.A. stable and is known to possess a unique and special terroir.
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t is a product of 60 year old vines from meticulously chosen plots by the winemaker Julio Sáenz, considered to be the best on the property. The 2012 vintage is 95% Tempranillo, combined with a traditional 5% field blend of Mazuelo, Garnacha and Viura.
The wine is fundamentally the result of 20 years work in the vineyards of Torre de Oña, during which detailed soil studies and intensive research were carried out in La Rioja Alta S.A.’s experiment hall. 2012 was a fresh vintage, with pleasant tannins and long, unhurried and balanced ripening. The structure and elegance of the Martelo 2012 makes it an ideal food companion. Long in the mouth, it is perfect with the bold flavours generated by braising, grilling and roasting meats. It is a perfectly suited your summer BBQs. 60 year-old vines. 95% Tempranillo and 5% a traditional field blend of Mazuelo, Garnacha and Viura. 24 months in oak, 80% American and 20% French. Mid garnet. Correct, fully expressive savoury rioja with no excess oak and just starting to drink well. Gamey, but also fresh with good definition and structure. Very complete, Well done! 17/20 Points, Jancis Robinson MW
The vines in this small two-hectare plot, made as a separate wine for the first time in 2012, are all over 100 years’ old. The result is a wine with impressive focus and concentration, dense black fruits, refreshing acidity and the texture to integrate the 100% new French oak. 94/100 Points, Tim Atkin MW 14% alcohol. Primarily Tempranillo with malolactic in barrel, where the wine stays for 2 years in a mix of French (20%) and American (80%) oak. Refined and supple, this is a wine that combines sweet berry and cherry fruits with some complex spice, earth and cedar notes, as well as a hint of tar. There’s a lovely concentration of fruit and just a twist of vanilla from the American oak, but this stays nicely in the background. This is a modern Rioja, but it’s not about bold, sweet fruit: instead, there’s a level of elegance and refinement here, and this wine will age into a beautiful mellow maturity over the course of the next decade. It has all the ingredients to become a polished, classic, mature Rioja. 94/100 Points, Jamie Goode visit www.armitwines.co.uk clients@armitwines.co.uk 020 7908 0655
A leading g contemporary wine merchan nt with 30 years of personality, pa assion, experience and an enviable portfolio p sourced direct from the world’s s greatest producers. Our list features a glob bal roll call of established icons of the wine world including Gaja, Ch hâteau Lafleur, Ornellaia, La Rioja Alta S.A., Sassicaia, Bruno Giacosa, Diamond amond Creek, Querciabella, Tua Rita, ta, Domaine Huet, Fattoria Le L Pupille and Romano Dal Forno. armittwines.co.uk
The Report LONDON21 21 CENTRAL
Wills and Probate
Duke Duke is an energetic and intelligent Border Collie Cross who loves meeting new people, playing with his toys and going for interesting walks. He had a loving owner who was there to ensure all of these, and to provide all the love and attention he needed, but at 8 years old Duke’s world was turned upside down when his owner unexpectedly passed away. ortunately, Duke’s owner had made provision for him with Dogs Trust, by registering for the Canine Care Card scheme. Dogs Trust had promised to take care of Duke should the worst happen, which is how he came into the care of Dogs Trust Manchester. The Canine Care Card gives h. owners peace of mind, Dogs Trust will care for their beloved Duke with Canine Carer Alice Leac dog and find them a new home. issue them with a wallet-sized card, which acts in a similar way to an Carol Margieson, Deputy Manager at Dogs Trust Manchester, organ donor card and notifies people of their wishes for their dog. said about Duke: Once their dog arrives at one of our rehoming centres, they will be “We can’t fill the space left by his devoted owner, only a new caring examined by our expert vets and cared for by our dedicated, trained staff. family can do that, but we’re making sure he is getting lots of TLC whilst We will endeavour to find them a new owner whose lifestyle and he is with us. He will be a lovely addition to any family and we just hope experience match their needs. If for any reason they cannot be rehomed, he doesn’t have to wait too long for the comfy, cosy home with the rest assured Dogs Trust never puts down a healthy dog, so we will loving new owners he deserves.” look after them for the rest of their lives. One in every four of your clients has a canine companion. Naturally Request a Canine Care Card registration form now and help your client they’ll want to make provision for their faithful friend. And now you can gain the peace of mind, knowing their dog will be cared for should help them at absolutely no cost by requesting a pack of Canine Care anything happen to them. Please fill out the coupon, or alternatively call Card forms today. Your client simply returns a form to Dogs Trust and we 020 7837 0006 or email ccc@dogstrust.org.uk and quote code 333777.
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Wills and Probate
A family’s unexpected discovery changes the way the estate is distributed Where do you turn when a person has died without a valid Will and the family cannot tell you all the information needed to administer the deceased’s estate? Even when the family believe they can, do you execute the administration process, relying solely on the family testimony available at that point?
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nvest countless hours in trying to establish the family and piece together a family tree? Or do you enlist a specialist to check the facts, because they might just uncover information that could change the facts of the case altogether? Elsie Wright’s case illustrates why instructing a professional genealogist to verify facts is always best practice. Elsie Wright was born in 1930 in Ilkley, West Yorkshire, and she married George Strong in 1966. Elsie and George never had any children and she passed away in a nursing home in 2012, two years after the death of her husband, without leaving a Will. With no children, Elsie’s two nephews, David and Robert, believed themselves to be the sole heirs entitled to their aunt’s estate. Their mother Helen, Elsie’s only sibling, had passed away many years ago. With such a simple family history, the solicitor assumed that the estate administration would be a straightforward matter, but, having a thorough approach to his work, he pursued clarification using Fraser and Fraser’s Family Tree Checker service. This service involves reviewing the existing documents, certificates and family tree, and checking the details against the available transcribed databases to provide an expert genealogical opinion on its accuracy. In this case, the story had only just begun. By 1960s standards, Elsie was an old bride at the age of 36, and this sparked the interest of our Case Manager. Further research delved into Elsie’s past and uncovered an unexpected discovery. Elsie was previously married at age 23, and that marriage had resulted in the birth of a son named David.
This was a revelation that could potentially change the way Elsie’s estate would be distributed. It was previously understood that Elsie had no children and her estate would be shared between her two nephews. The discovery led the search for heirs in a new direction. Our research proved that Elsie divorced her first husband, but what became of the child continued to be a mystery. Elsie’s son appeared to have lived with her for the first year of his life but then no record of him could be found. He had not been formally adopted, and this would mean that, having legally remained Elsie’s son, he would retain the right to inherit her entire estate. The search continued and revealed a well-kept family secret that would change the nephews’ entitlements to the estate. Although David had been raised by Elsie’s older sister Helen, he was not her biological child. The woman he knew as Aunt Elsie was, in fact, his biological and legal mother. Following Elsie’s divorce, and given the societal pressures of the time, Elsie had given her son David to be raised by her older sister, Helen. After careful research and expert handling, a case that was brought to us with seemingly clear beginnings could now be rightfully distributed. Family secrets, informal adoption, multiple marriages and a lack of research expertise can all play their part in making research more complex than it originally seems. Fraser and Fraser’s Family Tree Checker service gives you the chance to discuss the complexities of the case with us. We check for inconsistencies, gaps and question marks so that we can advise you on the best way forward.
GENEALOGISTS AND INTERNATIONAL PROBATE RESEARCHERS Phone: 020 7832 1430
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Wills and Probate
High Court awards elderly lifelong cohabitee outright transfer of property and capital sum in Inheritance Act claim Practitioners, judges and litigants alike have long grappled with what constitutes “maintenance” for the purposes of making an award to an eligible elderly claimant under the Inheritance (Provision for Family and Dependants) Act 1975. he often cited cases are Re Krubert [1997] Ch 97, Re Myers [2005] WTLR 851 and, indeed, the recent Supreme Court decision in Ilott v. The Blue Cross and others [UKSC] 17 where the courts appeared to favour a life interest over an outright transfer of capital. Thompson v. Raggett and others [2018] EWHC 688 (Ch) is a case in which I acted for the successful claimant, Joan Thompson. The facts are straightforward. Joan and the deceased, Wynford Hodge, had been cohabiting for 42 years. Joan was financially dependent on Wynford who assumed responsibility and control over all finances, even collecting Joan’s pension for her. Wynford and Joan had built up a successful caravan park business and asset portfolio, in Wynford’s sole name, in West Wales and, on death, his net estate was valued at a little over £1.5m. Wynford’s last will (there were eleven in total, six in the last six years) entirely excluded Joan and, in a letter of wishes accompanying that will, his reasons for doing so were that: “Joan has her own finances and is financially comfortable. Joan has her own money and savings.” The court disagreed both as at the date of trial and historically. Indeed, this was precisely why Joan had to issue a claim as a cohabitee, alternatively as someone who was being maintained by Wynford immediately prior to his death.
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Eligibility was not an issue, only quantum. Ultimately, HHJ Jarman QC, sitting at the Cardiff District Registry, awarded Joan the outright transfer of Elidyr Cottage, the property where Joan and Wynford had intended to retire and valued at £225,000.00, along with a cash lump sum of £188,845.76 in respect of her future maintenance and costs of refurbishment. HHJ Jarman’s reasons for a “clean break” award is set out at paragraph 40 of the judgment. In short, this was on the basis of the “very long period of cohabitation”, to provide a clean break and given that it was anticipated that Joan’s son and daughter-in-law would be caring for her. A further factor to which the judge gave great weight under s.3 of the Act was the obligations and responsibilities which Wynford owed to Joan as compared to those of the defendants; “the disparity in this regard” he said, “is wide indeed”. The judgment confirms that it is not an absolute rule that a life interest must always be awarded for elderly claimants. The courts will consider the specific facts of each case and are comfortable awarding capital transfers despite the guidance from the Supreme Court in Ilott.
Vlad Macdonald-Munteanu, Solicitor, Contested Wills, Trusts & Estates Team, Hugh James.
Conveyancing Focus
LEAP launches conveyancing accreditation scheme Best Practice Standard ensures service excellence with independent auditing LEAP, the world’s leading cloud software provider for small to mid-sized law firms, announces the launch of the Best Practice Standard for conveyancing. The scheme is aimed at assisting law firms to achieve and maintain the highest standards of conveyancing. One key element of the Best Practice Standard is that a firm has independent audits performed quarterly by a third party. These are undertaken remotely by the Centre for Assessment (CFA) with a detailed analysis of the law firm’s processes and a full report is fed back to the law firm, with a clear traffic light system reporting on areas such as client care, AML, risk and compliance. The CFA also undertakes accreditation for the Law Society and is the trusted delivery partner for the Cabinet Office. There is no charge to a firm for the quality audits nor the Best Practice accreditation.
Craig Taylor, Conveyancing Manager at LEAP UK comments: “Our customers asked us to provide an independently guaranteed mark of conveyancing quality. A main differentiator between the LEAP scheme and other schemes is that the LEAP Best Practice Standard not only recognises the use of technology but is independently audited and not another tick-in-the box accreditation scheme filled in by the practice head of conveyancing. Clients love the audit process which reaffirms best practice.”
Vicky Hosking, Managing Partner of Michael Smith & Co of Ipswich, the first firm to achieve the LEAP Best Practice accreditation, comments: “The LEAP Best Practice Standard is very important to us and we shared our vision to achieve it with our staff. It gave us the opportunity to implement training to ensure the highest standards were being met by Best practice is ensured when processing conveyancing transactions from within LEAP software. A firm’s reputation is maintained and validated everybody in the team at every stage of a matter. Ultimately our clients through quarterly independent audits, which gives confidence to the firms’ receive the benefit from the very best practice.” clients and displays a commitment to service excellence. Achieving the Jayne Akitt, Office Manager LEAP client, Hart Jackson & Sons of standard will help a firm attract new clients and potential referrers which Ulverston in Cumbria, comments: “The LEAP Best Practice Standard is will help a firm grow its conveyancing business and build lasting a clear demonstration of how the LEAP software can be used to achieve relationships with its clients. Adherence to the LEAP Best Practice and maintain compliance and to deliver a first-class conveyancing Standard aids compliance and reduces risk. By achieving the standard service. Alongside internal checks the Best Practice Standard will give us clients are displaying proactive risk management which has the potential a ‘heads up’ on anything that may need addressing.” to lead to savings elsewhere, for example professional indemnity For further details visit: leap.co.uk/best-practice-standard insurance cover. The Best Practice Standard adds further value to the solution included in the cost of the LEAP licence fee.
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Conveyancing Focus
Reducing risk in conveyancing: are you using a full flood assessment? Jonny Davey
In these days of digitised property information, conveyancers have a wide choice of search reports at their fingertips when considering how to best identify risk for their client’s chosen property. What is surprising, is that only about 17%* of orders placed with Geodesys, include a full flood assessment, meaning a large proportion of homebuyers are unaware of potential flood risk.
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ome owners tend to have both insurance and warning systems in place to protect themselves against fire and burglary, yet very few take steps to reduce the chances of their property being flooded. This is quite worrying given that the average cost to rectify flood damage stands at £28,000, compared to the average £7,200 to fix fire damage, and £1,000 on resolving damage after a burglary. What are the risks? According to the latest information from the Environment Agency, the UK currently has 5.9 million properties at risk of flooding, equating to one in six homes being at risk – an increase of 400,000 properties since just 2013. Flood damage devastates memories, lives, and properties. It can increase the risk of illness and it costs large sums of money and time to put right. In terms of monetary disruption, not only will flooding affect the price of buildings insurance, but it will also cause disruption later on, when obtaining a mortgage and eventually reselling the property. Educating homebuyers Flooding can happen anywhere, even if a property is not next to the sea or a river. Surface water flooding is caused by prolonged, heavy downpours in built-up areas and in recent years has been responsible for many incidents. Non-permeable surfaces restrict absorption of the water into the ground so it ends up flooding rivers and drains. In spite of surface water flooding making headlines, it’s still an area that’s not well-understood by the average homebuyer. It’s no longer enough for conveyancers to rely on the Property Information Form (TA6) to identify whether a property is at risk of flooding. Last year saw Paul and Hazel Edwards from Newcastle make national news headlines after their property was flooded. They sued the previous owners of their house, claiming that a Facebook photograph proved they were hiding a flood problem that hadn’t been revealed on the Property Information Form. *17% quoted is based on an analysis of Geodesys orders for search reports April 2017 – March 2018
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The benefits of a full flood assessment Although there are a number of flood reports on the market, conveyancers should look for a residential property search that gives them a full assessment on the different types of flooding, plus information on insurability. A full assessment will also give details of whether a property qualifies for Flood Re – an insurance scheme set up to help households who live in a flood risk area find affordable home insurance. Search reports with flood risk assessments for residential properties include: • Landmark Homecheck Pro Flood • Groundsure Homebuyers • Groundsure Flood • Groundsure Avista • Landmark Riskview Residential For information on sewer flooding conveyancers should refer to the CON29DW Drainage and Water report, which is also an essential part of the conveyancing process. Geodesys offers a number of flood searches and the CON29DW, providing conveyancers with sound knowledge of any flood risks to their client, enabling them to make better, informed decisions about their purchase before proceeding further. To find out more visit: http://www.geodesys.com
Jonny Davey Geodesys Product Manager – Conveyancing
Conveyancing Focus
Boozers, books, boutiques and ballrooms. As Richard Rodgers wrote all those years ago, these are a few of my favourite things.
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e’re talking assets of Community Value. An asset of community value (ACV) in England is land or property which has extra protection from development because of its importance to the local community. As you know this was introduced under the Localism Act 2011.
community value. What this adds up to is a situation where gaining permission for change of use will become much harder once an asset is given ACV status.
The good news is that your local search will inform you if the property is listed as an ACV or if it has been unsuccessfully nominated. The First things first, residential properties cannot be nominated or listed. bad news is that whilst that tells you what has happened up to the If you’re dealing with an existing residential property you don’t need point of the search, the future is less clear. You really do to concern yourself with the rules on ACV’s. The need to examine the detail. For example, a pub which has official criteria are cultural, recreational and sporting not been nominated previously may be nominated First things facilities. When we review the registers at the various immediately upon the locals hearing that the landlord has first, councils covered by this readership we see clear agreed its sale to a developer. Whilst nominations cannot residential trends emerging as to what is nominated and what come from individuals, said locals could form a properties gets approval and added to the list. The title of this community group quickly when faced with the potential for article is not merely about my love of alliteration, but cannot be closure. The friends of the Red Lion are out there. Maybe. rather nicely encapsulates where the action happens nominated Likewise, a failed nomination doesn’t mean that you’re in in relation to ACV nominations. Pubs are the number or listed. the clear. Some of the failed nominations in Westminster, one nomination and listing which is unsurprising for example, highlight that the nomination failed because it when the legislation was at least in part a response didn’t offer an explanation as to how the property furthers to the closure of Local Pubs and conversion to social wellbeing. A better worded nomination may succeed. If you residential use. (I still blame the smoking ban but that’s a whole need help finding the register, feel free to give us a call. We know different story). Libraries are also a favoured nomination, as are local where to find the detail. shops and “village” style community halls. It’s when you’re dealing When it comes to Assets of Community Value, it’s crucial to look with this type of property that your ACV sensors need to be under the bonnet. The search gives you the starting point, but the cranked up. register brings it to life. If nothing else, it provides a feel for the Local We know that nomination as an ACV may reduce the value of the Authority attitude to listings. In case you’re wondering, Westminster property due to the limitations placed upon its development have listed five pubs, 3 gardens and a college. Camden are running potential. Upon being listed, permitted development rights for at eighteen pubs, five community centres, four arts venues, two change of use are removed. In addition to the change in permitted sports and leisure sites and a public open space. The pubs of development rights, ACV status is a material consideration for a Camden are safe. future planning application – it’s going to be harder to achieve At Index we know what’s what and where to find it. If you need help permission. Having had a property listed, community groups have a with Assets of Community Value, searches in general or indemnity right to bid for an asset. Having stated that they wish to do so they have six months in which to prepare said bid, so if nothing else it will policies please feel free to call us on 0208 6167251. We would love to hear from you. ■ slow any potential transactions down. Finally, the local authority gains compulsory purchase rights in relation to an asset of
Gavin Casey Index Property Information CENTRAL LONDON 29
Mediation
New Wave ADR Dr Karl Mackie CBE, CEDR’s Founder President and James South, Managing Director of CEDR talk about the current potential and challenges of Alternative Dispute Resolution (‘ADR’) and their hopes and vision of the future.
Dr. Karl Mackie CBE
James South CEDR Managing Director
“I have had a great opportunity in the last year, after stepping down as CEO of CEDR, to look afresh at the ADR field. It remains as interesting, and challenging, as when I first ventured to promote the practice over 25 years ago With opportunity now to focus full-time on my own practice as a neutral, I get the added pleasure of seeing more often the results the process delivers for individual clients and professionals in the richness of everyday specific disputes. Nevertheless, I am conscious of some alarm bells. Lawyers I meet refer frequently to their dissatisfaction from previous experiences that the process (and by implication some Mediators) can sometimes be too formulaic. In turn, Mediators can feel frustrated by the quality of engagement of some lawyers, and by the limitations of a typical one-day mediation model. Internationally too, the process has its frustrations. There is continuing debate in parts of the US on whether the joint plenary delivers enough value, and some sense that lawyers want to restrict the process to a game of offers, shortcutting the intellectual cut-and-thrust of exploratory sessions with the other party and/or mediator. New institutions, like the Singapore International Mediation Centre, are promoting variations to the process through routes such as Med-Arb Rules. CEDR has built up a phenomenal range of new ADR experience through the growth of its adjudication and arbitration work, particularly in small claims and consumer disputes – we have almost by stealth become probably the largest organisational provider of arbitration in the UK! We also continue to extend our reach into facilitation, investigations, conflict coaching and other more complex independent interventions. Last year, the International Mediation Institute (IMI), in the culmination in London of a notable series of international data-driven ‘Pound Conferences’, ventured to suggest that there might be room for a new initiative in ADR, a refreshed initiative similar in impact to that begun by Professor Frank Sander in the USA when he described the ‘multi-door courthouse’ concept at the Pound Conference in the 1970s. Finally, in my 30-year mediation career I have been privileged to observe the flexibility of mediation and its adaptability to numerous contexts, and have helped pioneer its usage in multiple arenas – commercial litigation and contracts, employment & workplace, IT, insurance, tax, probate, property, clinical negligence - and many others including most recently in human rights and multinational conduct. But I am conscious that the full potential of ADR is not yet tapped and that the time is right for a new wave of thought leadership: to promote even greater integration of an ADR skill-set into our legal, commercial and social institutions, to rethink processes and rules, and to rethink our approach to training and professional development and organisation. Although I will retain an active interest in guiding the field forward, it is a fitting time to hand over the reins to CEDR’s new Managing Director James South to shape CEDR’s vision and operations.”
“Having worked as a mediator, consultant and trainer for 24 years, in over 30 jurisdictions, advising organisations such as the IFC/World Bank, UNHCR and the Foreign and Commonwealth Office, I echo Karl’s sentiments that there is an appetite to look at a more creative use of the mediation process. This will allow ADR to respond to a variety of different issues – both contentious and, even more relevant perhaps, processes that can effectively head off the contentious. My recent work on behalf of CEDR with Boards around the world on how to effectively resolve Csuite conflict, is but one example.
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To ensure CEDR and our field remains current, I am committed to addressing this desire for creativity and renewal and other burning issues such as diversity and leadership. CEDR’s focus over the coming years will therefore be to encourage new thinking, a refreshed and revitalised process assessment and one that better matches the individuals and organisations it is designed to assist. We will lead the diversity debate – how do we ensure that the mediator profession reflects the community it serves? How do we help the leaders of the future to develop their negotiation, mediation and conflict management skills so that they can bring about better conflict outcomes and a better world? To that end, two core Foundation (not-for-profit arm of CEDR) activities are: the New Dialogues programme that seeks to provide young leaders across all sectors of society with the 21st Century conflict and negotiation skills needed to thrive in both their professional and personal lives; and, secondly, a project looking specifically at the barriers faced by those from diverse backgrounds in being trained, gaining experience and being appointed as mediators. “CEDR will help leaders of the future to develop their negotiation, mediation and conflict management skills so that they can bring about better conflict outcomes and ultimately a better world.” Finally, our field needs to embrace the rapid increase in the use of technology in modern professional life, and actively work to incorporate technology in the training of mediators and delivery of ADR services. As always we are keen to learn from others’ experiences and insights. Karl and I would be delighted if you would get in touch and share your thoughts and views on the challenges facing our field and how we might tackle them.” Web: www.cedr.com Email: adr@cedr.com Tel: 020 7536 6000
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Land Registry
Fraud
PUSH PAYMENTS SCAMS TO BE TARGETED The Payment Systems Regulator (PSR) has announced an industry-wide action plan, to tackle push payment scams. By, Colin
Tankard Managing Director, Digital Pathways
push payment is where a bank, or other payment service provider (PSP), is instructed to transfer money from a customer's account to another account. When a customer gives their consent for a transaction to be processed by their PSP, it becomes an authorised push payment. Or, are you able to help your clients identify hidden value through development potential in the subject property? Within the legal sector, payment frauds have become big news. There have been many reported scams, where legitimate payment requests have been intercepted and changed or, fraudulent requests for payments received by a client but sent at a time when such a request was expected i.e. a deposit payment on a house purchase. Hackers view law firms as a potential weak point in the cyber security chain and are increasingly – seeking alternative ways to access legal organisations, both large and small. They don’t only target financial fraud by diverting client fund transfers but also, the actual data on clients which they then sell, on the Dark Web, for immense sums of money. The 2018 Legal Business Continuity Survey found that 71 per cent of law firms perceive data breaches and cyber-attacks as the number one risk to business. The research found that the top three effects of this on a law firm are the impact on revenue loss (74 per cent of respondents), inaccessible or lost data (71 per cent) and the reputational impact (63 per cent). The survey covered both UK and US law firms. Law firms tend to store and process highly valuable information and, by aggressively targeting them, hackers seek to steal sensitive information, such as commercial secrets, intellectual property, personal information, mergers and acquisitions data and market strategies.
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hosting provider of the service and always with a secure communication tunnel between the client and the data source. The users also need to be aware that communications they receive could be compromised and so, they need to take care in checking the validity and even double-checking, the instructions with the originator. The PSR are bringing in regulations to force organisations to take better steps to prevent man-in-the-middle-attacks, as victims are not covered for losses under current legislation. However, one strand of the PSR's approach is to enforce a reimbursement in the event of these scams. This would shift a large proportion of liability from customers to financial organisations or, the legal organisation who originated the communication. The direct consequence will be, that all organisations will have to reinforce their identification and authentication mechanisms, as well as their transaction data analytics systems, to reduce the number of opportunities to commit such scams. If the Legal Sector want to retain their credibility, as well as avoid large fines for data breaches inflicted under regulations, such as GDPR or possibly PSR, they need to ‘step up a gear’ in technology coupled with on-going, practical cyber awareness training for all staff. Failing to take these steps will be commercial and reputational suicide for any size of law firm. For Further Information contact Colin Tankard, Managing Director on Tel: 07768 000323 or e: colin.tankard@digpath.co.uk
Scams Authorised payment scams occur when a customer is tricked into authorising payments to an account that doesn't belong to their intended payee. From a digital security perspective, authorised push payment scams are a type of man-in-the-middle attack. These types of attacks happen when digital communications between two systems, are intercepted by an outsider. Common forms of man-in-the-middle attacks include:
Email Hijacking A hacker will intercept email communications between an organisation and their customers. They use this tactic to take advantage of scenarios where a customer is about to transfer money. Businesses, such as law firms, are prime targets due to the large sums of money typically involved in a transaction. Once they have breached a company's systems, the hacker will monitor emails, or even VoIP calls, until the company requests a payment from their customer, then the hacker will intercept the communication. Their aim is to trick the customer into paying money into their account instead. They do this by sending emails that are indistinguishable from the company's genuine ones. By changing the account details customers unwittingly transfer thousands of pounds to the fraudsters, in the belief that it is a legitimate account.
Wi-Fi Eavesdropping Using a portable Wi-Fi node, such as the Pineapple, a hacker will broadcast a free Wi-Fi hotspot from a public place, such as a coffee shop, and give it a legitimate sounding name. The hacker will seek to exploit anyone who connects to their hotspot, by spoofing web pages to collect log-in details, or, by breaking the connection once you log in, for example to your online banking, leaving the connection to your account open in order for them to access.
How to tackle these attacks Companies need to ensure their communications are secure and authenticated. For example, emails should always be encrypted and verified both on receipt and at opening. These verifications should be part of the process and not affected by the receiver switching off read receipts, such as in Outlook. Likewise, if data is stored in the Cloud and clients directed to services, the site should be secured with encryption, with the keys held outside of the
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Software
Your software swap checklist: Read before you leap! By Julian Bryan, Managing Director, Quill
Considering changing software suppliers? f, for whatever reason, software change is essential, we’ve compiled five questions to ask yourself and prospective suppliers to help you really assess your options and carefully research the marketplace before you switch over. The preparatory stage of your software swap project necessitates watching software demonstrations, meeting key personnel, reading contractual documents, including terms and conditions, asking this series of probing questions then evaluating your combined results. As an evolving profession, it’s easy to see why law firms upgrade their systems from time to time. You may expand or contract in size, adjust your area specialisms, accommodate new legislation and reform, merge or separate, face ever-more-demanding clients or maybe you simply made the wrong technology choice in the first place and support from your existing supplier is poor. Software purchase isn’t a straightforward decision because there’s an inevitable time investment on your part as you roll out new systems. Your new supplier can, of course, ease this process by assisting you throughout implementation, data transfer and end user training. This is a major contributory factor to any successful conversion. Selecting the right technology partner, then, is paramount, particularly as this is possibly the beginning of a long-lasting working relationship between your two businesses. If your legacy IT infrastructure is ill suited to your current and future requirements, it’s time to tackle those tricky software decisions. When it comes to the all-important questioning phase, here are the five questions:1. Are you happy with the system's legal accounts and compliance capabilities? Accounting functionality should be easy to use by fee earners, cashiers and managers alike, in order to simplify logging of expenses, billing, posting of e-chits, monetary transfers, bank reconciliations, supplier payments, financial reporting and other accounts-related tasks. A single system for client and office accounts is much preferable, otherwise you’ll be constantly toggling between applications and wasting valuable (potentially chargeable) time in the process. Compliant accounts management is dependent upon accuracy and due diligence. Search for a package that comes with an in-built warning system, automatic anomaly reports, AML scanning, identity verification, conflict checking and other risk management tools so that compliance with the SRA Accounts Rules, CLC Accounts Code and Scottish Accounts Rules is assured. 2. Have you established your exit strategy if your software choice doesn't work out? Contracts are occasionally outgrown. Check under what types of circumstances the contract can be terminated, specified notice period and what happens post-termination. For example, your supplier should act as the custodian, not owner, of your data and documents. Ensure everything’s exportable upon migration, and that formats and names are preserved. Thereafter, your supplier should delete from their stores, otherwise you’ll fall foul of data protection rules. With imminent Data Protection Bill and GDPR laws coming into force this May, your duties in this
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respect are more onerous than ever before. Heavier too are the fines imposed for non-compliance. Your supplier must follow the right procedures in safeguarding your valuable data. 3. Does your potential software supplier belong to the Legal Software Suppliers Association (LSSA)? The LSSA is the UK body for legal systems developers and vendors whose aim is to set and maintain professional standards within the sector and manage areas of mutual interest between solicitors, legislative bodies, government agencies and software houses. As such, member firms are bound by the LSSA’s strict rules and code of practice. For you, this provides a guarantee of the highest quality software and highest standards of service. 4. Can you speak with a real human being on the phone for help and support? Will you be dealing with an actual person when you become an end user? Sometimes there’s no substitute for being able to pick up the phone and speak with someone who understands what you’re going through and can rectify your dilemma. Consider time zones, standard support hours and availability of extended out-of-hours support. What promises are made within SLAs with regards to system uptime, monitoring, maintenance and service responsiveness? These metrics provide your business continuity and disaster recovery plans. For those busy periods during which phone interaction just isn’t possible, of course, email, fax and online chat options are important too. It’s highly likely you’ll utilise all these communication methods as time progresses. 5. What's in the contract and can you digest at length before signing? It’s the small print that often causes problems. Look at assigned liabilities, responsibilities and disclaimers. Don’t be rushed into signing contracts without having been given sufficient time to read and analyse first. If your supplier is forcefully requesting your signature, and you feel pressured to commit against your will, alarm bells should be ringing. Contracts signed in haste often lead to disappointment and / or surprise, escalating costs. There’s a justifiable reason why contracts are lengthy documents. It’s a legally binding agreement between you and your supplier. Insist on having the necessary time to pore over the content of your contract, and only sign when you feel ready and comfortable doing so. To conclude, by following this plan, you’ll find out exactly what being a client will feel like, both in terms of software usability and staff interaction, as well as what happens should you later decide to cancel your subscription. While this is certainly a good starting point to your software swap, it’s by no means an exhaustive list. There are other pressing questions to ask, not least regarding cyber security measures, data centre credibility, industry track record and live reference sites. To contact the Quill team, call 0161 236 2910, email info@quill.co.uk or visit www.quill.co.uk.
Book Review
DISCIPLINARY AND REGULATORY PROCEEDINGS Ninth Edition By Gregory Treverton-Jones QC, Alison Foster QC, Saima Hanif, and 39 Essex Chambers
ISBN: 978 1 78473 384 1 LexisNexis lexisnexis.co.uk THE LAW RELATING TO PROFESSIONAL CONDUCT: THE DEFINITIVE TEXT – OUT NOW IN A NEW NINTH EDITION An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, ‘The Barrister’ The law relating to the regulation of professionals forms the subject matter of this book, which provides a detailed and carefully researched explanation of the regulatory framework which governs the conduct of professional activities. Now in its ninth edition and published by LexisNexis, this distinguished work of reference refers to what the editors call the ‘myriad of rules and regulations’ which have evolved by political will in response to the perceived and obvious need to ‘maintain high standards among those delivering professional services’. The result is an ever-increasing body of case law and of decisions in this area as the jurisprudence which pertains to it continues to evolve. Particularly noteworthy is the range of professional services – and related activities covered. Just about every category of human endeavour you might think of is either mentioned, or examined in depth, from greyhound racing to, yes, legal services. It is worth reading through the almost minutely detailed table of contents to get an idea of the scope of the book which is divided logically over 17 chapters, into four parts. Part 1 deals with the powers of regulators, the nature of professional misconduct and the civil liability of regulatory bodies. Part 2 covers the disciplinary process, from the investigation though to the hearing itself, the tribunal’s decision and appeals and reviews.
For barristers and solicitors, the sections on financial services and legal services will prove the most interesting of the lot. Notable decisions on financial services, say the editors, are given special consideration. Also discussed is the conflicting case law in the sphere of solicitors’ regulation. A whiff of conflict also emerges under the category of reserved legal activities defined under the system of regulation created by the Legal Services Act 2007. Curiously, any activities not thus defined are not subject to regulation, the result of which is that ‘it is open to any member of the public to provide legal advice for reward,’ provided that the person providing such ‘advice’ (such as it is) is not passing himself, or herself off as a qualified lawyer. To say that all this is a source of resentment – and a sore point indeed – with hordes of qualified barristers and solicitors is probably an understatement. One can only suggest that the public interest would be better served if there was a change in the law in matters such as this. But as the editors remind us in the Preface, ‘limited progress has been made’ (despite government commitments) in simplifying the current regulatory framework, which they describe as ‘often byzantine’. Considering the sheer complexity of the regulations governing the conduct of professionals, it is fortunate that this longestablished legal text is designed for ease of use. It’s not surprising that it has become known as one of the most useful tools available to practitioners (and even non-practitioners) dealing with ‘disciplinary and regulatory proceedings’. The editors and contributors have endeavoured to state the law as at 31 August 2017.
Part 3 examines specific regulatory regimes, including financial services, legal services, healthcare and numerous other professions, from accountants and architects to such bodies as the Rugby Football Union. Part 4 covers data protection and freedom of information. Jurisprudential issues ranging from personal morality to public policy continually emerge throughout, making this book even more interesting. CENTRAL LONDON 35