OMNIBUS THE CLAPHAM The journal of the SOUTH LONDON LAW SOCIETY
SUMMER 2018
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■ Will & probate ■ Conveyancing ■ News
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ON LA
W SOCIETY
Inside this issue:
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Procrastination is an inherited trait... but you can beat it (See page 12)
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CONTENTS
Contents PUBLISHER Benham Publishing Limited Aintree Building, Aintree Way, Aintree Business Park Liverpool L9 5AQ Tel: 0151 236 4141 Fax: 0151 236 0440 Email: admin@benhampublishing.com Web: benhampublishing.com
Introduction
5
4 5
News 6 7
SLLS AGM Hanne & Co cycle for CALM FBE General Congress in Bologna
Events 8
ADVERTISING AND FEATURES EDITOR Anna Woodhams
STUDIO MANAGER John Barry
10
ACCOUNTS
Keep in touch President’s Review
Joanne Casey
9 10-11 11
The SRA’s approach to meeting new European Insurance Distribution Directive is approved Law Society events Under attack: the rule of law in Poland How are you, really?
Junior Lawyers Division
MEDIA No. 1547
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PUBLISHED July 2018 © Benham Publishing
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LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur. Correct at time of going to press.
Article 14-15
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15 16
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Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.
DISCLAIMER
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The South London Law Society welcomes all persons eligible for membership regardless of sex, race, religion, age or sexual orientation.
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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. They are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified legal advice.
South London Junior Lawyers Division report Procrastination is an inherited trait... but you can beat it Are the regulators destroying our profession? Finally time for real-time co-authoring? easy convey purchases Finlay Associates to provide comprehensive easy search service LEAP conveyancing manager talks about the firm’s new Best Practice Standard accreditation scheme Bringing law studies to life
Software
14
LEAP launches major revision of Legal Aid software
Wills and probate 21
22 23 24 25
High Court awards elderly cohabitee outright transfer of property and capital sum in Inheritance Act claim Majority at risk as they don’t have a will Dog's Trust: Duke A family’s unexpected discovery changes the way the estate is distributed Death and taxes
Conveyancing 26
Copy deadlines Autumn 2018 Spring 2019 Summer 2019
11 October 2 March 12 July
Reducing risk in conveyancing: are you using a full flood assessment?
Employee health 28
Working outside office hours?
29 30
Market Abuse Regulation Insider Trading and Market Manipulation
Book review
To advertise in the Clapham Omnibus, please contact Anna Woodhams before the copy deadline. Email: Tel:
anna@benhampublishing.com 0151 236 4141
THE CLAPHAM OMNIBUS 3
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4 THE CLAPHAM OMNIBUS
INTRODUCTION
President’s Review Gareth Ledsham
Robert Hush
A goodbye from Gareth Ledsham and an introduction from the new South London Law Society president Robert Hush
T
he South London Law Society’s AGM on 21 June was a poignant one for me as it was my last as president. After nearly three years at the helm, I decided not to stand for re-election.
It has been an honour and a privilege to act as the society’s president during this time, which has been one of continuous change and challenge for the profession. From South London court closures affecting lawyers and their clients to proposed changes to the SRA handbook (affecting how we work) and legal education (affecting how we qualify), the role of the society in representing its members’ views has, I believe, been essential. I’m proud that the society has been adding its voice in these ongoing conversations and I have no doubt that the society’s new president, Robert Hush, and new vice president, Donovan Lindsay, will continue promoting members’ interests in a similar fashion.
I
’m delighted to be able to serve as president of the South London Law Society and to welcome you all to this issue of the Clapham Omnibus. My thanks go to our editor, Samantha Whitaker, who works tirelessly in the background to gather our contributions for each issue. As a former president, Stephen Whitaker brought new life to the society, its magazine and social events. Subsequently, while Gareth Ledsham has led the society over the past three years, he has overseen the submission of several important responses to government and SRA consultations on behalf of local solicitors. In 2015, our committee member Sara Chandler became president of the Federation of European Bars and was instrumental in facilitating our society’s twinning with the law society equivalent in Luxembourg. Relationships such as this will become all the more important to lawyers and their clients as we move through and beyond Brexit. We live in a period of tremendous change. There are calls from some quarters for a deregulation of the practice of law, and we have seen proposals for a radical change to the way that solicitors will qualify in the future. Meanwhile, Richard Susskind’s predictions and the emergence of artificial intelligence are becoming a daily reality that will no doubt drastically change the way that future lawyers will organise their business and serve their clients.
I’ve also been fortunate during my term to be supported by an excellent committee of lawyers from South London firms who all give up their time freely to assist the society. There isn’t space to list their contributions here; however, they know who they are and my heartfelt thanks goes to each of them. In my role as immediate past president, I will remain on the committee and very much look forward to contributing to the society’s continued success.
Gareth Ledsham Immediate Past President
The challenge for us all is to manage the changes and adapt our practices successfully. We need not be afraid of technology, as it offers as many opportunities as it does threats and there is a growing realisation that technology may offer a means for increasing access to justice. I look forward to working with you all to see how the South London Law Society can help you and your firms continue to serve your clients and local communities. My final words are dedicated to the memory of local solicitor Sheila Donn, who sadly died on 27 June after a long illness. Sheila and Beverly King took on the running of Philcox Gray over 20 years ago, and during that time built a thriving legal practice, as well as growing their own reputations. I only worked with Sheila briefly a few years ago, but it was immediately obvious to me that she was a fine lawyer and a very decent person – the type of person that we all aspire to be. She made a difference to her clients and the world in which she lived, and she will be missed by many.
Robert Hush President South London Law Society THE CLAPHAM OMNIBUS 5
NEWS
AGM
The new South London Law Society President, Robert Hush, and Vice President, Donovan Lindsay
The South London Law Society AGM took place on Thursday 21 June at Anthony Gold, London Bridge. The following officers were elected to serve on the 2018 committee:
President:
Vice President:
Honorary Secretary:
Treasurer:
Robert Hush
Donovan Lindsay
Sarah Hughes
Andrew Pavlovic
Robert is a Senior Lecturer in Law at London South Bank University and a practicing family law solicitor, specialising in family law.
Donovan is a Senior Associate at Anthony Gold, who specialises in Court of Protection practice. This involves managing financial affairs for vulnerable adults and children who are no longer able to manage their property and affairs.
Sarah is a Partner at Anthony Gold who specialises in all areas of family law and has a wideranging caseload with a particular interest in financial proceedings.
Andrew is a Senior Associate at Russell-Cooke. He has experience of acting in a broad range of commercial disputes, as well as undertaking regulatory and administrative/public law work for the Law Society, the Solicitors Regulation Authority and the Architects Registration Board.
Plus a committee of eight members:
Gareth Ledsham
David Taylor
Samantha Whitaker
Lorna West
(Immediate Past President)
(Law Society Council Member)
(Clapham Omnibus Editor)
(Committee Member)
Ashmeet Wadwa
Jaymi Wooldridge
Professor Sara Chandler
Stephen Whitaker
(Junior Lawyers Division Chair)
(Law Society Regional Member)
(Committee Member)
(Committee Member)
6 THE CLAPHAM OMNIBUS
NEWS
Hanne & Co cycle for CALM T
his year, Battersea-based Hanne & Co solicitors nominated the Campaign Against Living Miserably (CALM) as charity of the year. Calm is an award-winning charity dedicated to preventing male suicide. With enthusiasm high in team Hanne & Co’s charity committee, it was time to get the ball rolling on the fundraising front. I decided to cycle to Paris on the May bank holiday weekend. In order to maximise the cycle’s fundraising potential, I managed to convince a few friends to get involved. At first they were reluctant, but after getting a glimpse of CALM’s luminous orange cycling tops they were sold. The JustGiving page was set up and the fundraising began. Next on the to do list: buy a new bike! After scouring eBay for a couple of days, I found a bike that took my fancy. “Hasn’t been
used for years,” I was told. “24 gears, puncture-proof tires and a mini tyre pump attached to the frame (in the event the impossible happens).” I know a bargain when I see one and snapped it up! After convening with my fellow cyclists in Croydon, we were off! The morning session went well, spirits were high and the luminous lads were flying. Then disaster. The punctureproof tyres were punctured. Despite having all the gear, we soon realised no one had any idea how to repair a puncture. Going into a bike shop in Redhill in a luminous cycling top and lycra only to ask how to fix a puncture was one of the more embarrassing moments of the trip. After getting off the ferry at 5am to commence the next leg of the cycle, we followed the famous Avenue Vert for the next four hours.
Despite a further hour-long puncture break, we were making good time. We stopped for a lovely French breakfast of baguette, cheese and salami, followed by a lovely French lunch of baguette, cheese and salami. We stayed in Beauvois for the night, then mounted our assault on la Tour Eiffel. With our bodies weary and full of ibuprofen, we finally arrived at the extremely crowded and partly closed Eiffel Tower. Voila! The cycle raised an impressive £1,450 for CALM. Hanne & Co’s charity committee will be hosting more events over the coming year in support of the magnificent work they do fighting suicide among young men.
Daniel Gray Trainee Solicitor, Hanne & Co
FBE General Congress in Bologna O
n 17-19 May 2018, Sara Chandler and I attended the Federation of European Bars (FBE) General Congress In Bologna, Italy. The FBE was founded in Barcelona 26 years ago, and membership is open to Law Societies and local and national Bars within the Council of Europe. Today, it has 250 member bars representing around 800,000 lawyers, and it holds congresses twice a year in different European cities. These meetings offer a unique opportunity to discuss common problems and share information and experiences. The theme for this General Congress in Bologna was ‘New Families – New Challenges’. Over the two days, a host of speakers discussed a variety of topics, including same-sex marriage in Spain, Italian law and the family’s relationships, and new families, surrogacy and co-motherhood. For Sara, the congress was significant as it marked the end of her term as President of the FBE, while I was appointed a member of the FBE
Human Rights Commission. For both of us, the trip offered a fantastic opportunity to network with lawyers from other European countries, as well as those from other parts of the UK – which resulted in a number of conversations about Brexit! As well as attending seminars, we also took in some of Bologna’s historical sights and enjoyed the black-tie gala dinner with music from concert lawyers to conclude proceedings, held in Circolo Della Caccia in Palazzo Spada, an elegant building in the heart of the city centre. Since the conference, I have been contacted by a Bulgarian lawyer who may require assistance from my firm’s family department if her case requires intervention by the English courts.
Donovan Lindsay Senior Associate, Anthony Gold
THE CLAPHAM OMNIBUS 7
EVENTS
The SRA’s approach to meeting new European Insurance Distribution Directive is approved The Solicitors Regulation Authority (SRA) has had its approach for dealing with the new European Insurance Distribution Directive approved by the Financial Conduct Authority (FCA) and Legal Services Board (LSB)
T
he directive means that firms carrying out insurance distribution activities will need to change the way they work. Replacing the Insurance Mediation Directive, the new directive aims to strengthen protection in place for clients, such as improving the information they receive. The SRA consulted on proposed changes to the Handbook to cater for these new requirements. The changes have now been approved by the FCA and the LSB and published on the SRA website. Guidance on the new directive, which comes into effect from 1 October, will also be made available.
Paul Philip, SRA Chief Executive, said: “Our changes meet the requirements of the new directive without putting unnecessary burdens on firms. For example, in many areas our Code of Conduct already covers what is needed. It’s important that firms make sure they are up to date with the revised requirements, so that they can provide a proper service to their clients.” Some of the key enhancements brought in by the directive that firms will need to familiarise themselves with are: • Professional and organisational requirements
8 THE CLAPHAM OMNIBUS
• Conduct of business requirements • Information requirements • Demands and needs of their client Firms working in personal injury, conveyancing or probate are most likely to be affected. For example, they might arrange after-the-event insurance in a personal injury matter or defective title insurance in a conveyance. There may be other insurance products that firms advise on or arrange for their clients in other areas of law. All firms should therefore assess their own individual practices and make sure they are up to date and able to comply with the revised rules. The SRA will be writing to a number of firms that have indicated that they carry on insurance mediation activities in their response to last year’s Financial Services Activities questionnaire. The directive requirements can be found here: sra.org.uk/sra/consultations/insurance-distributiondirective.page
EVENTS
LAW SOCIETY EVENTS at Chancery Lane, London DATE
EVENT
21 Aug 2018
Advocacy and the Vulnerable Training – Morning session
8 Sep 2018
Judicial appointments: interview training for solicitors
7 Sep 2018
11 Sep 2018
20 Sep 2018 9 Oct 2018
9 Nov 2018
Judicial appointments: interview training for solicitors Mastering the art of family advocacy Youth Justice Advocacy Training Youth Justice Advocacy Training Advanced Criminal Advocacy
To see all events, visit
lawsociety.org.uk
DATES FOR YOUR DIARY Junior Lawyers Division: Qualification Drinks Thursday 6 September 2018 Sponsored by Outer Temple Chambers. To find out more, email sllsjuniorlawyers@gmail.com
SAVE THE DATE South London Law Society Annual Dinner November 2018 Date and venue TBC
Residential and Commercial Property Lawyer Required Solicitor/Chartered Legal Executive required to take over and continue to develop an existing caseload. We provide a personal service to clients, supported by the latest technology. Role includes freehold, leasehold and leasehold enfranchisement. Any experience of management and/or further developing new technology welcome but not essential. We are a professional and friendly firm in Orpington, Kent. â– Please send your CV and covering letter, with salary expectations if you wish, to recruitment@thomasdunton.co.uk, or telephone Alison Routley, Office Manager, on 01689 822554 for more information. Applications through agencies will not be considered. THE CLAPHAM OMNIBUS 9
EVENTS
Protest in Poland in July 2017 over proposed judicial reforms
Professor Sara Chandler QC (Hon)
Under attack: the rule of law in Poland
Professor Sara Chandler explains the ramifications of Poland’s recent assault on law and the judiciary
A
lthough the ‘rule of law’ is a phrase that lawyers in the UK generally take for granted, we can all recognise some of the ways in which it canbe challenged. Corruption by governments, for example, or the arrestand detention of judges and lawyers. In Poland, the rule of law has been threatened over the past two years by sweeping constitutional changes. This includes the forced retirement of judges, changes to the way judges are appointed and increasing the level of power entrusted to the Minister of Justice, all of which undermine the independence of judges. As a result, the European Commission (EC) has expressed its concern and has threatened to impose sanctions on Poland if the new system is not amended. Many international legal organisations, including the Law Society, have also expressed their concern and conveyed their support of the Polish judges. Indeed, in my role as President of the Federation of European Bars (FBE), I wrote to the President of Poland in June 2017, and again in August and December, communicating the concerns of our 250 members. Meanwhile, European judicial and legal eyes are on a case recently heard in the Irish High Court. Under the European Arrest Warrant, Poland has requested extradition of a man called Artur Celmer, but the judge, Ms Justice Aileen Donnelly, asked the Court of Justice of the European Union (CJEU) in Luxembourg to determine whether the constitutional changes in Poland have undermined its ability to give Mr Celmer a fair trial. In short, the CJEU is being asked whether the mutual trust between member states in each other’s judicial systems has been damaged. This trust is the basis for the near-automatic transfer of accused people under the European Arrest Warrant system and the future of Poland’s extraditions from EU countries will be decided by this case. The decision by the EC to send the proposal to the European Council under Article 7(1) was the first time that this has occurred in respect of any member state. Paul McGarry, Chairman of the Bar Council of Ireland, told the Irish Times: “The upholding of the Constitutional tripartite separation of powers of the Legislature, the Executive and the Judiciary is fundamental to a functioning justice system. Any threat to this is a most sinister development for individual nations and Europe as a whole.” The court could deliver a damning judicial assessment of the rule of law in Poland and the ‘reforms’ of the ruling Law and Justice party. 10 THE CLAPHAM OMNIBUS
Naturally, there have been angry responses from the government and media in Poland, with the country’s Deputy Justice Minister, Marcin Warchol, accusing Justice Donnelly of engaging in ‘political games’ and singling Poland out for unfair criticism. However, the Polish government’s opposition and the country’s leading law professors who oppose the judicial changes have welcomed Justice Donnelly’s decision. Professor Marcin Matczak of the University of Warsaw’s law faculty said: “I hope this case will be the beginning of the end of the dismantling of the rule of law.” They hope that by bringing the case to the CJEU, there could be more tangible implications for the Polish government.
What’s happened so far Despite the decisions of the Polish Constitutional Tribunal that the changes made by the Polish legislature were unconstitutional, and the concerns of EU institutions and other member states, on 20 December 2017 the President of Poland, Andrzej Duda, signed the following three acts into law: 1. The Act on Ordinary Courts Organisation: the changes made to this law increase the powers of the Ministry of Justice with regard to the appointment and dismissal of officials, the promotion and appraisal of judges, and the disciplining of judges. 2. The Act on the National Council of the Judiciary (NCJ): the NCJ is the body responsible for appointing judges. Changes to this law have transferred final approval of the appointments to the NCJ to the Polish parliament. This now means that 22 of the NCJ’s 25 members are appointed by either the Polish parliament or by the President. 3. The Act on the Supreme Court (SC): there are two significant changes to this law. The first is the lowering of the retirement age for judges from 70 to 65 years old, forcing almost 40% of current judges to retire – although the President has discretionary power to retain some. The second is the establishment of an ‘Extraordinary Chamber’ within the SC with the power to reopen old cases. In response to these moves, and following two years of dialogue between the EC and the ruling authorities in Poland, in December 2017 the EC formally triggered Article 7 of the Treaty of European Union. Article 7 is an EU infringement procedure that can be used against member states in the event of a ‘serious and persistent breach’, and can result in the suspension of voting rights and the imposition of sanctions.
EVENTS
European Commission Vice President Frans Timmermans © European Union 2016 - European Parliament
According to the EC, the changes to the role of the Polish Minister for Justice have given the holder of that office too much power and have weakened the independence of the judiciary, raising serious questions about the effective application of EU law in areas as varied as child custody disputes and the execution of European Arrest Warrants. The rule of law is one of the founding values of the EU, and for EC Vice President Frans Timmermans, defending the separation of powers is of “existential importance, not just for the Polish nation, but for the EU as a whole”. Talks between Brussels and Warsaw continue, with Mr Timmermans welcoming some adjustments currently being made by the Polish government, but warning that unless agreement is reached ahead of the EU summit in June, the Article 7 process will continue. “The main issue remains how much political control can you have to be able to say that the judiciary is independent,” Mr Timmermans told journalists in May, citing the law on Poland’s National Council of the Judiciary, which is responsible for nominating judges. Many lawyers in Poland are hoping that the
changes will be reversed and the rule of law restored. Challenges to the rule of law often start in such small ways that we’re not even aware of them, which means that vigilance is required at all times. The notorious headline in the UK press screaming ‘ENEMIES OF THE PEOPLE’ above pictures of the three judges who ruled on Brexit gave the legal profession both here in the UK and abroad serious cause for concern. The rule of law can be challenged anywhere and we should never be complacent.
Professor Sara Chandler QC (Hon) Solicitor in the Legal Advice Clinic at London South Bank University and former President of the South London Law Society
How are you, really? Life in the law can be challenging and sometimes things can get on top of you. Can we help? LawCare is the charity that promotes and supports good mental health and wellbeing across the legal community in the UK and Ireland. We’ve been supporting lawyers for 20 years. No-one knows lawyers like we do. Our confidential helpline is a safe place to talk without judgement. We’re here to help 365 days a year through our confidential helpline, answered by trained staff and volunteers who have firsthand experience of working in the law. You can call us about anything – no problem is too big or small. Whether you’re a young trainee experiencing sexual harassment, a student struggling with the workload or an experienced partner worrying about a mistake you’ve made, we’re here to listen.
We are here to help all branches of the legal profession and our support spans the legal life from student to training to practice and retirement. As well our helpline on 0800 279 6888, we offer one-on-one peer support, and information, resources and factsheets at lawcare.org.uk
CALL 0800 279 6888 Weekdays 9am – 7.30pm Weekends and Bank Holidays 10am – 4pm
THE CLAPHAM OMNIBUS 11
JUNIOR LAWYERS DIVISION
Zena Everett at the Crazy Busy Talk event in June
THE JUNIOR LAWYERS DIVISION Ashmeet Wadwa on how the JLD has been flying the flag for women in law and learning how to get more out of their working day
E
arlier this year, we bid farewell to our wonderful chair Louise Taylor so that she can devote more time to her voluntary role at a legal charity. I’ve stepped in as acting chair for the committee, and my main aim is to continue to organise engaging and enjoyable events for all our members.
Inspirational women in law In May, we proudly hosted a panel Q&A session at Anthony Gold in London Bridge. Our esteemed panel of successful female professionals featured: Francesca Kaye, a deputy district judge and commercial litigation partner at Russell-Cooke; Eileen Pembridge, founder and head of Fisher Meredith and a consultant and senior family law solicitor at Bishop & Sewell; Grainne Fahy, a family law partner at Hanne & Co; and Jessica Standley, a personal injury associate at Slater and Gordon. The panel shared their experiences of when they first started in law. They spoke about the time when women weren’t allowed into the Law Society and when they had to enlighten their male colleagues about even the idea of having female partners. However, they all agreed that the profession has progressed significantly since then and now champions equality, which is proven by the marked increase in female lawyers and partners over the past few years. And although some concerns were raised around female representation at the Bar and within the judiciary, they were all confident that these figures will balance out over time. Overall, the event was received very positively, with the audience engaging well with the panel both during the discussion and afterwards over wine and nibbles.
Crazy Busy Talk We received a lot of positive feedback following our successful event with careers expert Zena Everett last year, so we were very excited when Zena agreed to speak again in June. This time, her talk was about productivity and how to use our time more effectively – a topic that’s highly relevant for both firms and individual lawyers alike. The interactive 1.5-hour session at Russell-Cooke in Holborn allowed the audience to raise their concerns, which Zena responded to with tips and tangible actions to help reclaim wasted time and increase billable hours. These included using Outlook to block out time in your calendar for large pieces of work or to schedule follow-up tasks after meetings. She also recommended making people aware of your workload and confirming
12 THE CLAPHAM OMNIBUS
priorities with senior colleagues to demonstrate your ability to manage your time and keep their expectations in check. You can learn about beating the urge to procrastinate in Zena’s article on page 13, and find out more about her work and publications at zenaeverett.com
Qualification drinks Our annual reception on 6 September is an opportunity to welcome new trainees to the South London JLD and for members to network with fellow law professionals of up to five years PQE over drinks and canapés while (hopefully) soaking up the last of the summer sun. The event will be held at Russell-Cooke in Holborn and is sponsored by Outer Temple Chambers. To find out more, contact us using the details below.
Committee Finally, on behalf of the committee I would like to say a very big thank you to Louise Taylor for her massive contribution to the South London JLD. She was always so welcoming to new members, and her positivity and ability to build relationships has allowed us to bring together a diverse and strong committee and team of sponsors and other stakeholders. My current committee consists of: Susanne Seaton, Akilah Douglas, Rachel Hyneman, Nikki Basin, Vanessa Asante, Laura Christodoulou, Tom Dickinson and Billy Yu Lok Ng.
Get in touch To better assist our members and organise events that they will benefit from, we welcome questions and suggestions from both members and non-members via the contact details below.
Ashmeet Wadwa Trainee solicitor at Russell-Cooke
DATES FOR YOUR DIARY Qualification drinks Thursday 6 September 2018 Website: southlondonjld.wordpress.com Email: sllsjuniorlawyers@gmail.com Twitter: @SouthLondonJLD
JUNIOR LAWYERS DIVISION
Procrastination is an inherited trait... but you can beat it Careers expert Zena Everett on how to fight the urge to faff and just get down to business There’s nothing like exam time to highlight our universal tendency to procrastinate. Colouring in a revision diary instead of actually revising – or, in my case, developing a daily desire to polish my oven when I was studying for a mid-career masters. Recently, I caught myself watching a YouTube clip on how to get out of quicksand when, ironically, I was supposed to be doing some research on productivity tools. We procrastinate over tasks at work, but also about starting difficult conversations at home, getting medical symptoms checked out, speaking up in meetings and making big life decisions. This often causes frustration, inertia, stress and regret. I have two ‘Crazy Busy’ principles for getting stuff done: ● Doing something unimportant well does not make it important. ● Spending a long time on something does not make it important. So why do we faff around preparing to start, rather than just… starting? Procrastination is a lifelong trait and researchers have found that it’s even in our genes, so a tendency to procrastinate usually runs in families. However, that doesn’t mean we’re stuck with it – just that the fix is probably going to be more complicated than ‘just do it’. In most cases, it isn’t the task itself that’s the blocker, but the transition to getting started. Here is one psychological and one practical reason why we delay starting: Fear of failure You are paralysed by your perfectionist tendencies. Perfectionists aren’t trying to be perfect – they just feel that nothing they do is ever good enough. Do you like to do everything at the last minute, right up to the deadline? Imagine you’ve got an important report to write, which is due in by Friday morning. If you block out time early in the week to write and edit it, you stand a fair chance of producing a decent quality document. If you do it over Thursday night into the early hours of Friday morning, you are giving yourself a get-out clause for a sub-standard result: “If only I’d had more time, it would have been perfect.” You are protecting yourself from the fear of failure. If you’d wholeheartedly thrown yourself into writing the report and it still wasn’t up to your uncompromisingly high standards, you’d have to deal with that. This way, your perfectionist tendencies are holding you back, protecting you from facing up to your perceived substandard performance and failures. And rather than giving you a safety net, this avoidance behaviour creates even more stress and anxiety. What’s more, your delaying and last-minute approach probably creates stress for the people you work with too. Solution: Untangle your performance from your self esteem and see yourself as more than just your achievements. Decide when only outstanding performance will do and when to aim for average performance. In most cases, average is perfectly fine. WHAT you do is significantly more important than HOW you do it.
You haven't planned the task into your diary It’s simple: if work isn’t scheduled, it doesn’t get done. Most of us spend our day driven by what’s screaming out in front of us – which is usually our inbox. Vital tasks get fitted in around the sides. Our diary is full of meetings, not real work. And how we spend our day can also depend on our mood and what we feel ready to take on. We have a slow build-up to getting ready, regardless of our intentions. Solution: Block out time to do priority tasks in the same way you schedule meetings and make sure you have all the resources you need to start it on time. If you’re in an open-plan office, consider moving to a quiet location where you aren’t going to be interrupted. At the very least, shut down all pop-up messages. Try it for 60 minutes and see what you get done – and also if the world can cope without access to you. It can also help to design a routine and stick to it. Don't wait until you’re in the mood, just start your task and your mood will catch up. Structure your day in a disciplined way so that you can be as effective as possible. For example, allow time every morning for a few quick tasks and conversations to get your energy going, then drop into 90 to 120 minutes of scheduled deep ‘flow’ working on challenging tasks that will make a significant impact. Don't worry if you aren’t sure what to do first or if the task or project seems overwhelming, as your first chunk of time can simply be for figuring out how to do it and making a plan. This advice is from Crazy Busy: How to get more done in a day than you do now in a week (Filament Publishing, March 2018, £5.99), available from Amazon and at zenaeverett.com. You can also get a free ebook version by subscribing to the site. Zena runs Crazy Busy 90-minute masterclasses in law firms to reduce procrastination, increase ‘flow’ productive working, control emails and manage relationships more efficiently (with partners as well as clients!). To find out more, email her at zena@zenaeverett.com
THE CLAPHAM OMNIBUS 13
ARTICLE
Are the regulators destroying our profession? David Taylor debates whether the Solicitors Regulation Authority and Legal Services Board are deliberately undermining the rule of law It is sometimes misunderstood that the Law Society is still the approved regulator under the terms of the Legal Services Act 2007, but the Law Society has delegated the regulatory powers to the Solicitors Regulation Authority (SRA), which is now technically a board of the society. This means that, as practitioners, our frontline regulator is the SRA, with the Legal Services Board (LSB) overseeing the whole legal services provision. From the inception of the SRA, there has been consistent agendapushing for complete independence from the Law Society. And it’s fair to say that this might be a preferable position to what we have now – for example, some of the more outrageous decisions taken by the SRA could be subject to some sort of judicial review, whereas at the moment the society cannot ask for a review of itself. However, the SRA receives the bulk of the revenue from the annual practising certificate, so its independence would leave insufficient funds for the Law Society to continue in its current form. Membership services, the representation of members and the significant work carried out in law reform and review would all be severely reduced, if not eliminated. Regulating the profession The Legal Services Act 2007 sets out eight regulatory objectives: 1. Protecting and promoting the public interest 2. Supporting the constitutional principle of the rule of law 3. Improving access to justice 4. Protecting and promoting the interests of consumers 5. Promoting competition in the provision of services 6. Encouraging an independent, strong, diverse and effective legal profession 7. Increasing public understanding of the citizen's legal rights and duties 8. Promoting and maintaining adherence to the professional principles The services referred to in ‘promoting competition in the provision of services’ are reserved legal activities, and the ‘professional principles’ in the final objective are to act with independence and integrity, to maintain a proper standard of work, and to act in the best interests of client. So far, both the SRA and LSB have consistently and wilfully misunderstood the role of our profession in society and ignored the more inconvenient objectives. In a meeting, the first chair of the LSB told me that the provision of legal services was the same as selling a tin of beans, while the SRA is obsessed with liberalising the market. The indictment against the SRA is that they have proposed the introduction of measures that undermine our professional principles and ignore the public interest. Some of the more egregious proposals recently are for solicitors to be allowed to practice in unregulated entities without professional indemnity insurance and without the client having access to
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the compensation fund. This proposal is now out for consultation – and, in my experience, when the SRA consult, negative comments are ignored and the original proposal is implemented. Indeed, in the last couple of weeks it has been revealed that the SRA has allowed waivers for at least two entities to provide these kind of services (Croner and Rocket Law). When asked to provide details of the waivers, the SRA replied that this is commercially sensitive information. They are also coming back for a second bite of the cherry in terms of reducing PII cover from the present compulsory £2 million – the argument being that firms that have little risk of exposure would be able to buy lower levels of cover with cheaper premiums. But there is no evidence from the insurance market that this would be the case. The SRA fundamentally misunderstand insurance. Firms would have to buy top-up insurance cover over and above the proposed reduced minimum, but this top-up insurance would not be subject to the minimum terms and conditions that are currently compulsory to insurers providing PII. What’s more, as the risk will not be spread throughout the profession, the premiums for top-up cover will be more than the premiums for the present minimum level of cover. Who are the real lawyers? The SRA is also intent on changing the way that solicitors are trained. While there may be some argument that this would increase access to the profession and avoid the scandalous level of debt that some trainees face, there is a serious threat to the recognition of our professional qualification. This is particularly true for lawyers outside the UK – for example, it’s not currently possible to qualify at the New York bar without a law degree, while our European colleagues have serious doubts about the present qualification regime compared to their rigorous, lengthy and extensive programmes. The SRA is also yet to find a provider for the new national examination, and I expect that we will end up with some large outsourcing entity, such as Capita, despite the recent history of such organisations. A further objection to our current regulators is that they don’t provide a level playing field when it comes to competition. Those of us who play by the existing rules of compulsory PII, continuing professional education and contributing to the compensation fund will now be in competition with organisations that have none of these obligations. Meanwhile, the public will be unable to recognise at the outset whether the person they instruct is a solicitor in a regulated entity or not, meaning that their access to regulatory complaint and/or compensation will be equally opaque. Finally, the most serious indictment against the regulators is their abject
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failure to protect access to justice. Both the SRA and LSB have remained purposefully silent as access to legal aid has been removed from the vast majority of our citizens. They failed to object to the massive and disproportionate increase in issue fees in civil proceedings, so that, once again, the majority of people and small organisations are excluded from the rule of law. They have also failed to object to the salami-slicing of legal aid payments in criminal work, so that now the criminal justice system is at breaking point. When questioned, the regulators say that this is not part of their role, but it is one of the objectives of the Legal Services Act. Meanwhile, the regulators maintain a supine stance with the government – which may be understandable given that both bodies are stuffed with quangonists who rely on government patronage to move from one wellpaid quango to another. Perhaps the SRA and LSB agree with George Bernard Shaw that “All professions are conspiracies against the laity”. I believe their agenda is to destroy the profession. Their ideal would be something called ‘lawyers’, who have no minimum training or standards and who will provide cutprice services to the public. If these people provide negligent services and if they are not insured, they will be able to go through some insolvency procedure and the next day arise from the ashes like a phoenix to carry on their shoddy offerings.
I believe that now is the time for our profession to say, in the words of Peter Finch in the film Network, “We are as mad as hell and we’re not going to take any more.” I believe now is the time to confront the regulators. In terms of the SRA, it’s possible for Law Society Council to dismiss that board and replace it with another. Of course, this will have serious repercussions, but I believe now is the time to fight. Any delay or failure to take a militant stand on these issues will lead to the inevitable loss of standards and eventually the wasting away of our great profession.
David Taylor Law Society Council Member, Partner at Hanne & Co and former President of the South London Law Society
Finally time for real-time co-authoring? It’s been nearly a decade since Google Docs first let students work together, at the same time, on the same document, all in the cloud. Microsoft followed with Office 365 in 2011.
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Also be sure it offers comprehensive, tamper-proof audit trails, with realtime reports that show all activity on a document. Granular security will let you designate varying levels of access to different users. Your new co-authoring system should allow everyone to work together on To date, few law firms have felt able to enjoy real-time co-authoring with one master document, finally hailing the end of tedious document their own third parties, or heaven forbid, clients. They’re hindered mostly downloads and uploads, multiple versions and bottlenecks waiting for by security concerns, costs, or complexity. This is now changing. colleagues’ changes to be emailed over. Everyone sees edits in real time A new breed of cloud suppliers is emerging, promising co-authoring and because everyone has access to the same document which never need collaboration with anyone, inside or outside a law firm, with no new IT to leave the document portal. install, and very little risk. The question law firms face is how do they find Choose a supplier that provides familiar document types for you to work the right provider of a secure, compliant real-time co-authoring service? on like Word, Excel and Powerpoint, and a familiar track changes function: First, find a provider that can offer your firm its own ‘single tenant’ server, or not only useful for compliance, but also for reverting back to an older will help you to host on your law firm’s own servers, giving you control over document version if necessary. your firm's data security. New competitors to Microsoft and Google are emerging, offering stronger Ask where servers are located, and choose a provider that will host you security and auditing, easier external sharing, and dedicated servers that in the country of your choice. If their servers are UK-based, your valuable law firms can host themselves. Put this new technology to use and watch data need never leave UK shores, and will benefit from EU data your firm’s productivity, relationships and competitive edge reach the privacy laws. cloud. Ensure your new cloud provider is ISO 27001-accredited. This means it will have rigorous systems in place to protect your data against all threats Managing Director at PROJECTFUSION – physical and human. ince then, millions have used online co-authoring to work with collaborators. Millennials in particular are fiercely loyal, often choosing Google – and only Google – for collaborative work.
Angus Bradley
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ARTICLE
Tom Durbin St George, Managing Director Easy Convey
Easy Convey purchases Finlay Associates to provide comprehensive easy search service Richard Norman, Director Finlay Associates
Easy Convey has acquired Finlay Associates Ltd. Founded in 2003 by Richard Norman, Finlay Associates is one of the most trusted companies in the search industry. Finlay delivers a powerful combination of the highest standards in residential and commercial search, decades of experience and unrivalled local knowledge to its clients. This move sees the launch of easy search from easy convey, a high-quality residential and commercial conveyancing search provision to be implemented into easy convey’s conveyancing case management platform. All searches are available, including configurable search packs, favourites, alert notifications and integration with Land Registry mapping services for property boundaries. Easy Convey gives a personal service and doesn’t have a call centre. Clients have a dedicated easy search account manager, 16 THE CLAPHAM OMNIBUS
who can give assistance with failed environmental searches. “Easy Convey is the perfect fit for us and shares the same ethos as Finlay Associates, that of professionalism and exceptional customer service. We are excited about adding searches to the easy convey product portfolio and assisting its continued growth,” said Richard Norman, Director Finlay Associates. Tom Durbin St George, Managing Director of easy convey, comments:“This acquisition enables us to seamlessly integrate comprehensive and high-quality searches into our conveyancing case management software offering. We are delighted to provide this professional product and expertise to Easy Convey clients.” ■
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LEAP conveyancing manager talks about the firm’s new Best Practice Standard accreditation scheme
We spoke with Craig Taylor, Conveyancing Manager of LEAP UK to ask him about the recently launched Best Practice Standard for conveyancing. What is the Best Practice Standard?
What are the benefits for conveyancers?
The Best Practice Standard has been set up to assist law firms to achieve and maintain the highest standards of conveyancing. As part of the standard a law firm has quarterly independent audits by a third party. This gives a detailed analysis of the firm’s processes and a full report is fed back to the firm, with a traffic light system reporting on areas such as client care, anti-money laundering, risk and compliance.
The benefits include regular audits, risk reduction and potential PII benefits. LEAP provides collateral to promote participation, including display certificates, reception window transfers, dated audit logos and a consumer landing page. As well as communicating to the consumer that a law firm is providing an excellent consumer experience, this material ensures that consumers are aware of the benefits of working with a Best Practice Standard firm.
Why the need for a quality standard?
What the customers say:
Our clients told us there were faults in the existing offerings which were not enabling firms to improve their standards. Our customers asked us to provide an independently guaranteed mark of conveyancing quality. There was a requirement for a standard demonstrating the modern law firm’s use of cloud-based technology, improved compliance, enhanced risk reduction, and transparency. A main differentiator between the Best Practice Standard and other schemes is that the Best Practice Standard not only recognises the use of technology but is independently audited and not another tick-inthe box accreditation scheme filled in by the practice head of conveyancing. Clients love the audit process which reaffirms best practice.
LEAP customers love the scheme. Vicky Hosking, Managing Partner of Michael Smith & Co of Ipswich, the first firm to achieve the LEAP Best Practice accreditation, says: “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 everybody in the team at every stage of a matter. Ultimately our clients receive the benefit from the very best practice.” Jayne Akitt, Office Manager, Hart Jackson & Sons of Ulverston in Cumbria, comments: “The LEAP Best Practice Standard is a clear demonstration of how the LEAP software can be used to achieve and maintain compliance and to deliver a first-class conveyancing service. Alongside internal checks the Best Practice Standard will give us a ‘heads up’ on anything that may need addressing.”
Who is the standard for? Initially the law firm will gain the most benefit. The intention is that in the future, the standard will be a guide for other parties in their decisionmaking process when choosing a provider. In time we see consumers asking to use a conveyancer that holds the Best Practice Standard accreditation. The Best Practice Standard helps a firm show that it adheres to a rigorous quality scheme, which will give a user confidence when deciding which firm to engage. The standard ensures that the conveyancing process is efficient, speedy and transparent. As the scheme progresses, it will become recognised by third party stakeholders including insurers and lenders.
How is the Best Practice Standard assessed? The standard ensures that a firm’s conveyancing process is not only efficient but that technology is used throughout the process to manage and record every stage. This enables remote and independent audits to take place. This is a key attraction to law firms. We have engaged with the specialist legal auditors, Centre for Assessment, who provide five file audits per quarter to Best Practice firms. This ensures consistent and compliant practices whilst giving peace of mind to the senior team. The audit identifies gaps where improvements can be made, and ensures that any other issues can be remedied promptly.
About LEAP UK LEAP is the cloud legal software solution for small to mid-sized law firms wishing to become more efficient, more flexible and profitable. It allows everyone in a small law firm to work naturally using a single integrated system that enables them to do more work with the same number of people. More than 1,700 legal practices across the UK and Ireland use LEAP cloud practice management software every day. It avoids the need to buy expensive servers that can soon become obsolete. LEAP is focused on the design of the very best software to meet the needs of small to medium sized law firms, and it supports this commitment by investing more than £8m per year on innovation and design. leap.co.uk
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Bringing law studies to life With the relentless cuts to legal aid across the UK, students who undertake pro bono work can make a real difference to society, says Sally Gill
The School of Law and Centre for Criminology at the University of Greenwich has a long history of supporting and encouraging the provision of pro bono work by its students. Currently, around a third of school’s 300 or so students volunteer in the not-for-profit sector for a number of different organisations. The main purpose of these projects is to establish innovative partnerships within the local and national legal community. The university is also a member of LawWorks and follows the Pro Bono Protocol.
Law in the community placements Established in 2008, these placements allow students to receive academic credit for volunteer work in the local not-for-profit sector, helping to instil the ethos of pro bono within the next generation of legal professionals. Through these placements, long-term relationships have been fostered with law centres, Citizens Advice Bureaus, a domestic violence charity and Burke Niazi, a legal aid firm specialising in mental health. One of the university’s students, Rebecca Smith, volunteered two days a week for two years at Greenwich Association of Disabled People. They said: “Rebecca is really committed to disabled people, fantastic with clients, caring and organised. She has transformed the way we do the blue badge applications, which are so important for disabled people. She is one in a million.” Rebecca was recently awarded the runner-up prize in the 2018 LawWorks & Attorney General Student Pro Bono Awards for best individual student in recognition of her work on the placement. Every year, the students on these placements increase access to justice for those most in need, while also providing support to organisations that often rely on volunteers to maintain their services. Innocence Project London Set up in May 2010, the Innocence Project London (IPL) at the University of Greenwich is the only UK member of the global Innocence Network, which is based in the US. The service provides a lifeline to individuals who have been convicted of crimes but maintain their innocence and have exhausted the criminal appeals process. Under the supervision of volunteer lawyers, students undertake thorough and objective investigations to identify either fresh evidence or a new legal argument to substantiate grounds of appeal to the Criminal Cases Review Commission (CCRC). Currently, the IPL has made one submission to the CCRC, which is under consideration, and hopes to send another two during this summer.
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Without IPL, many individuals would have no access to justice, while students benefit from the opportunity to develop empathy in their work and their own attitudes towards the criminal justice system. By visiting their client in prison, they also learn first-hand the impact of one bad decision. The IPL also supports the organisation JENGbA (Joint Enterprise: Not Guilty By Association), which campaigns for reform of the law of joint enterprise and for wrongful joint enterprise convictions to be overturned. Legal Advice Centre Established in March 2014, the Legal Advice Centre has gone from strength to strength and now advises some 300 clients a year on a range of social welfare issues, including employment law, family law, small business matters, and housing and leasehold disputes. It was set up with the intention of filling a gap in the provision of legal advice within the local community following the cuts in legal aid, and it operates on the premise of ‘partnership working’. So far, 1,200 clients have obtained legal advice, easing the pressure on the advice sector in the borough and further afield, with some clients coming from as far as Kent. Clients can approach the centre at any stage in their case, and cases vary from race discrimination and small business set-up to surrogacy disputes and complex care proceedings. There are also complex referrals from clients with mental health problems via the Oxleas NHS Foundation Trust, Greenwich Association of Disabled People and social services. The centre is supported by around 20 lawyers who volunteer across the year, including transatlantic law firm Womble Bond Dickinson, who support a weekly small business advice session, and a local retired circuit judge who delivers housing and family advice one day a week. During the 2017/18 academic year, more than 80 students from all year groups volunteered at the centre. For them, the opportunity provides a supportive, collaborative environment to learn and build their experience. Since opening, the centre has received a number of awards. In its first year of operation, it was awarded best new pro bono initiative in the 2015 LawWorks & Attorney General's Student Pro Bono Awards, and in 2016
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Family Court Helpdesk Set up in 2015 at the East London Family Court, the Family Court Helpdesk is led by qualified family solicitor Farhana Begum. Farhana supervises and trains students who attend court one day a week to
Sally Gill Director of the Legal Advice Centre University of Greenwich
Photos from LawWorks & Attorney General Student Pro Bono Awards: (above, left to right) Attorney General Jeremy Wright QC and staff from the Legal Advice Centre in 2015; nominees George Rodrigues and Sophie Papworth with staff from the Legal Advice Centre in 2016; representatives from the Personal Independence Payment clinic in 2017; (below) 2018 runner-up Rebecca Smith, with Sally Gill and Martha Hunters
NOTE FROM THE EDITOR The Clapham Omnibus is your magazine, so please do get involved. If you’d like to write an article or have some news to share, email me at omnibus.editor@gmail.com Thanks, Samantha Whitaker editor
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Feedback from the social workers supporting clients has also been excellent. They says the centre is invaluable to their clients, many of whom struggle alone and require a lot of support to engage with services.
To find out more about the work of the the University of Greenwich, please contact Sally Gill at s.gill@gre.ac.uk
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Feedback from clients surveyed in 2017/18 showed that 92% found the service ‘extremely helpful’. One respondent commented: “I felt so alone, but the students were so friendly and knowledgeable, and my claim was successful.” Respondents also praised the employment services and the PIP clinic, which is particularly well-used and boasts an 80% success rate, with 95% of clients feeling that it had made a real difference to their chances of success. The PIP service has recently been extended to include Employment and Support Allowance, which is expected to be a growth area in 2018/19.
support litigants by explaining the litigation procedure and taking notes during First Hearing and Dispute Resolution Appointment hearings. Referrals are then made to the Legal Advice Centre, where further assistance can be provided. The service runs every Monday during term time, and 270 litigants have been assisted to date, which represents a significant contribution to access to justice for clients at the court.
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two students were shortlisted for their work in the Personal Independence Payment (PIP) form-filling clinic. The PIP clinic was also awarded the runner-up prize in the best new student pro bono initiative category in 2017.
SOUTH LONDON LAW SOCIETY southlondonlawsociety.co.uk THE CLAPHAM OMNIBUS 19
SOFTWARE FREE WILLS MONTH
LEAP launches
major revision of Legal Aid software Firm shows commitment to legal aid market with major software revamp
LEAP, the world’s leading cloud software provider for small to mid-sized law firms, announces the launch of its new Legal Aid software. LEAP now provides a completely integrated Legal Aid software package including case management, time recording and billing solution. The firm provides a comprehensive solution for both criminal and civil matter types for Legal Aid work in England and Wales.
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LEAP works closely with the Legal Aid Agency (LAA), making regular enhancements to its software to ensure it is up to date with the latest requirements. Integrated submission for both civil and criminal work types via CWA (contract and work administration) ensures claims can be checked and submitted electronically in readiness for payment, ensuring faster payment. The system can reduce the time a firm spends on billing by up to 50% and the new software will assist firms with compliance and the Legal Aid auditing process. Major features of LEAP Legal Aid include: • Faster and more intuitive Time Recording function • Captures all information needed for invoicing, monthly billing to LAA • Support for multiple time entries • Fees and disbursements auto update fee structures • Fixed fees for Civil Legal Aid (Legal Help/Controlled Work) • Smarter bolt on payments (Mental Health and Immigration) • Simplified recording of FAS, CPGFS and PFLRS for Family and Care matters • Integrates with Crown Court Portal
Kirsteen Forisky, Legal Aid Manager at LEAP UK comments: “At a time when some legal software suppliers are paying Legal Aid lip service, we at LEAP are bucking the trend by making a major investment into Legal Aid. We are proud that our software now makes it easier, quicker and more profitable for clients to undertake Legal Aid work. We recently had over 100 legal firms attend a webinar about the new version and the reaction was extremely positive..” Ryan Dormer from Nelson Guest & Partner Solicitors comments: “We have used LEAP’s updated legal aid software to run our latest submission, and it was the most hassle-free submission we have ever done! “As a Legal Aid firm, we were looking for a partner who could provide us with a system to make the life of caseworkers easier. LEAP does this. The Legal Aid time recording is easy to use and billing is made easy to navigate. With the recent update to the system we received training which was very good and support was on hand if any issues arose.” ■
WILLS FREE AND WILLS PROBATE MONTH
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.
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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.
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
CHRISTMAS IS COMING...
While the Inner Temple organisation and site were founded in the 14th century, the stunning Georgian-style main building was tragically destroyed in WWII. The hall was rebuilt in 1951 and has flourished ever since. Situated in the heart of London’s legal quarter, this space is highly versatile and accessible. Comprising four rooms, this venue features a Main Hall, Parliament Chamber, Luncheon Room and Drawing Room. Each space can be hired separately according to requirements. Rooms have capacities from 20 to 600. We can create amazing bespoke Christmas parties with a variety of packages to suit either receptions or seated dinners – contact us for any of your event needs!
CHRISTMAS
One of the four ancient Inns of Court within the City of London, the Inner Temple’s vogue as a private hire space is a rather more modern phenomenon.
Christmas Packages at The Inner Teemple Receptions from £135 per person, minimum of 250 people •
Room Hire (Hall) +1hr ex tension
•
Sparkling wine on arrival/fo our hour drinks package feeaturing beer, wine and soft drinks
•
C anap es x 5
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B ow l F o o d x 4
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DJ
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Crackers and mince pie towers
Contact Tanya nya Riding Sales es and Marketing Manager ding@innertemple.org.uk ŵ triding@inner } 020 7797 8180 nertemple.org.uk/christmasoffeers º inn
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WILLS AND PROBATE
Majority at risk as they don’t have a will Most people in the UK are at risk of not having their final wishes respected after their death as they have no will in place, according to new research from Which? Legal.
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he survey revealed that less than a third (31%) of those in Scotland have written a will, compared with 35% in Wales. In England, results were almost as poor with just four in 10 (42%) having a will in place. A staggering six in 10 (61%) told us that they don’t have a will. When we asked why, four in 10 (38%) told us that they had nothing worth inheriting, one in five (20%) said that writing a will had not occurred to them, and 16% said they had been too busy. Which? Legal found that those who did have a will in place waited until they were 47 years old, on average, before writing it.
When asked whether they would leave money to charity, two thirds (67%) said that they would not. Of those, the majority (64%) said this was because they wanted to leave their money to family.
“Whatever stage of life you’re at, a will offers peace of mind and ensures that your money, property and other possessions go to the right place. “Giving money to charity in your will can be a tax efficient way to pass your money on.” To find out more about the importance of writing a will, visit: legalservice.which.co.uk/wills-probate/writing-a-will/
Percentage of people with a will (regional breakdown): • South West - 47% • Northern Ireland - 47%
There was a clear generational divide in attitudes towards charitable giving, with 57% of 18-24 year olds saying they would leave money to charity in their will, while just 19% of those aged over 65 said they would make some form of donation.
• South East - 40%
Risks of not having a will:
• North East - 36%
• You won’t be able to decide exactly who gets your assets after your death. • You may not be able to ensure adequate provision for your financial dependants. • Your family may encounter additional legal fees, challenges and taxes. • You may not have appointed guardians for any of your children under 18. Legally speaking guardians could be appointed in legal documents other than a will, although using a will is the most common way of doing it. • If you are not married to your partner, they may be deprived of their home or your joint wealth, as intestacy rules do not recognise unmarried couples. • You won’t know who will care for your pets.
Darren Stott, Managing Director of Which? Legal, said: “It’s clear that people don’t appreciate the risks of not having a valid will in place. Even if you think you have nothing worth inheriting, this is often not the case.
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• Eastern - 44% • East Midlands - 44%
• North West - 36% • Wales - 35% • West Midlands - 35% • Yorkshire & Humberside - 34% • Scotland - 31% • London - 31%
WILLS AND PROBATE
Duke F
h Duke with Canine Carer Alice Leac
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 eight 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 owners peace of mind, as Dog’s Trust will care for their beloved dog and find them a new home. Carol Margieson, Deputy Manager at Dogs Trust Manchester, said about Duke: “We can’t fill the space left by his devoted owner, only a new caring family can do that, but we’re making sure he is getting lots of TLC whilst he is with us. He will be a lovely addition to any family and we just hope he doesn’t have to wait too long for the comfy, cosy home with the loving new owners he deserves.” One in every four of your clients has a canine companion. Naturally they’ll want to make provision for their faithful friend. And now you can help them at absolutely no cost by requesting a pack of Canine Care Card forms today. Your client simply returns a form to Dogs Trust and we issue them with a walletsized card, which acts in a similar way to an organ donor card and notifies people of their wishes for their dog.
Once their dog arrives at one of our rehoming centres, they will be examined by our expert vets and cared for by our dedicated, trained staff. We will endeavour to find them a new owner whose lifestyle and experience matches their needs. If for any reason they cannot be rehomed, rest assured that Dog’s Trust never puts down a healthy dog, so we will look after them for the rest of their lives. Request a Canine Care Card registration form now and help your client gain the peace of mind, knowing their dog will be cared for should anything happen to them. Call 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?
I
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
I am a Solicitor
Email: info@fraserandfraser.co.uk
Looking ffor or Missing Beneficiaries Missing Beneficiary Insurance Certificates Will Search Missing Wi Will Insurance Industry Regulation International Bankrruptcy Search Asset Search Share V Vaaluations, T Tra ransffers and Sales Probate Property Assistance
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WILLS AND PROBATE
Death and taxes In July 2013, I wrote that “receipts from Inheritance Tax (IHT) increased by 7% to around £3 billion in 2011/12. It is a significant revenue source for the Treasury and destined to remain so for years to come”.
How right I was. Receipts from IHT for 2017/18 alone are expected to come in at £5.3 billion, over 75% higher. It’s true that more people are dying than previously expected. The ONS suggests that by 2022 the population above state pension age will be 1.2% lower than previously assumed.
Please note: 1. The value of tax reliefs depends on your individual circumstances. Tax laws can change. The Financial Back in July 2013 the Nil Rate Band for an Conduct Authority does not regulate individual was £325,000. It still is. Surviving tax advice. spouses can now benefit from any unused IHT threshold within the NRB and we have 2. The value of your investment and the income from it can go down as the additional nil rate band for property which has increased to £125,000. Broadly well as up and you may not get back the full amount you invested. Past though the Government has a continued performance is not a reliable indicator focus on tax avoidance and is intent on of future performance. increasing the amount of IHT generated. The more significant factors though are rising house prices, tighter Government policy and tougher HMRC enforcement.
There remains numerous ways to limit IHT such as spending everything, making annual gifts to family or gifts out of income. Outright gifts of capital can be made via trusts or directly to the recipients but both involve the loss of access and control to the funds and not many of us can predict how much we can afford to give away. One solution is to make investments that qualify for Business Relief (BR). Unlike gifts or trust settlements BR investments fall outside the estate after just two years despite the asset still being owned outright. As long as it is held for two years it can be gifted at a later date with no IHT consequences. A number also focus on capital preservation, aiming to deliver a modest net annual return, protect against inflation and preserve value. The proof is in the pudding and in the case of one such offering the investment objective has been delivered every year since launch in 2007.
3. Shares and share-related funds should be regarded as long term investments and should fit in with your overall attitude to risk and your financial circumstances.
Nick Cole Senior Consultant S4 Financial Limited 0127634932 nick.cole@s4financial.co.uk
THE CLAPHAM OMNIBUS 25
CONVEYANCING
Reducing risk in conveyancing: are you using a full flood assessment? 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.
H
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: geodesys.com
Jonny Davey Geodesys Product Manager – Conveyancing
EMPLOYEE HEALTH
Working outside office hours? Sally Woolston
It could greatly put your employees’ mental health at risk
The legal and financial sectors are rapidly evolving into a fast-paced and increasingly digital world, and, as such, new ways of working (including hours outside of the nine-to-five) are more and more becoming the norm.
S
ally Woolston, Business Development Manager at unoccupied property insurance specialist Unoccupied Direct, compiles recent figures from the new Global Benefits Forum Survey: • 89% of large law firms contractually oblige staff to be available outside of office hours • One in four employees (26%) in the legal sector believe their mental wellbeing is at risk by working outside office hours • 20% of employees in the legal sector believe working outside of office opening hours negatively affects their productivity
Lack of downtime affects productivity With around 41% of multi-national law firms currently offering mental health resilience support for their employees (and a further 22% expecting to do so in the next decade), it’s clear that maintaining the wellbeing of staff is increasingly becoming a priority for the legal sector. However, this seems to be somewhat undermined by the fact that 89% of law firms still contractually oblige their employees to be available outside of working hours. The short-term gains of having employees available constantly could end up being outweighed by the longer-term impacts of not allowing employees to fully ‘switch off’ from work.
Retaining talent: long-term employees The pressure of long, irregular or on-call type working hours can mean many employees have to blur the lines between their work and home lives, meaning firms could increasingly expect see a quick turnover rate. Many potential employees (81% of those surveyed) would be put off applying for jobs that have expectations to be on call outside of the usual working week. By contrast, 44% of HR directors at law firms say that this is an expected role at their company. As well as proving difficult to keep long-term staff, this disconnect could affect future talent acquisition too. Senior Vice UK President of Lockton, Chris Rofe, comments: “Many employers are ‘not walking the talk’ when it comes to work life balance. With employers spending millions on health and wellbeing initiatives, many are failing to acknowledge one of the biggest risks to their employees’ health and wellbeing.” ■
Sally Woolston Business Development Manager
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BOOK REVIEW
MARKET ABUSE REGULATION Commentary and Annotated Guide Edited By Marco Ventoruzzo and Sebastian Mock
ISBN: 978 0 19881 175 6 OXFORD UNIVERSITY PRESS oup.co.uk
A BOOK FOR OUR TIME: FRESH AND ERUDITE DISCUSSION ON THE EU’S MARKET ABUSE REGULATION
An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, ‘The Barrister’ Balanced against the myriad advantages of a free market economy, there are inevitably a number of downsides, most or all of which come under the category of market abuse. Within this bleak landscape, the need for MARKET ABUSE REGULATION (yes, it’s capitalised) looms large. If you are in any way involved in matters pertaining to financial services specifically within the EU, this new practitioners’ text from the Oxford University Press is what you need – the subject matter being more than a little complex. Offering an interesting historical perspective at the outset of the discussion, the two editors, Marco Ventoruzzo and Sebastian Mock, point out that the regulation of market abuse has a long history in the European Union dating back to the 1960s, following on, you might say, from initial efforts in the US to impose regulation against ‘insider trading’ as the result of the 1929 stock market crash. In Europe, a number of directives were launched from the 60s onward, aimed at curbing market abuse, notably the Market Abuse Directive (MAD), which has now been replaced by a regulation (as opposed to a directive), the Market Abuse Regulation (MAR), around which the discussion by this book’s expert contributors ultimately revolves. MAR, as the editors explain, is ‘one of the centrepieces of the new Capital Market Union (CMU) of the European Union’, with far-reaching significance for law practice and research. The hoped-for outcome is that it may lower the barriers that too often separate jurists from different countries within the EU. Whether this development will smooth the path to eventual harmonisation of EU law remains to be seen, although the editors, together with their
several contributors, support the view that ‘continental Europe now speaks a common legal language’ in the area of market abuse. This in their opinion, is ‘a major step forward toward a more uniform legal framework.’ Market abuse manifests itself in various ways, the most pervasive of which are discussed in this book. The annotated guide section (A) deals in detail with, for example, insider dealing and market manipulation, examining basic concepts as well as possible remedies available within public and private enforcement of the MAR. In the second section (B), the book’s expert contributors come into their own, offering a number of viewpoints on market abuse. Particularly interesting are the sub-sections on insider information, including unlawful disclosure. Another section deals in detail with the ESMA (European Securities and Markets authority) and the various issues involved in whistleblowing mechanisms and the whistleblowers themselves. This is very topical. International in orientation, the book nonetheless appears not to have mentioned Brexit. It can’t be too far-fetched to conclude that as far as the contributors are concerned, Britain’s planned exit from the EU is probably an irrelevance. Considering London’s international pre-eminence in financial services, this is not a terribly comfortable assumption. Financial services practitioners, however, will be interested in acquiring this book, with its range of perspectives on regulation in general and the EU MAR in particular. Researchers from a range of professions will certainly appreciate the wealth of research references offered throughout, especially in the extensive footnoting and in the tables of cases and of legislation. The law is stated as at 1 September 2017.
THE CLAPHAM OMNIBUS 29
BOOK REVIEW
INSIDER TRADING AND MARKET MANIPULATION By Janet Austin
ISBN: 978 1 78643 641 2 Edward Elgar Publishing Ltd. e-elgar.com
TAMING THE CROSSBORDER CROOKS – OR HOW TO CURB INSIDER TRADING ON A GLOBAL SCALE
An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, ‘The Barrister’ Is the taming, shaming and prosecuting of insider traders operating across borders a well-nigh impossible task? This book by Janet Austin, from Edward Elgar Publishing, contains any number of comments on the difficulties and offers an equal number of valuable suggestions on what might be done. ‘Insider trading’ – a term reasonably well understood by the general public – does strike a certain degree of terror in the stony hearts of traders in the Square Mile and other wellregulated jurisdictions, as there have been a few of those found guilty who have suffered years of incarceration as a result. Insider trading, together with market manipulation are basically, in the opinion of author Janet Austin, the twin pillars of market abuse and especially difficult to tackle when perpetrated across borders. This copiously researched and carefully argued treatise is based on her 20 years as a Federal Prosecutor for the Commonwealth Director of Public Prosecutions in Sydney, Australia. Now a member of the Faculty of Law at the University of New Brunswick, Canada, the author recalls one specific case where, after 12 months of repeated requests to a particular country for details of who exactly had placed certain insider trades, there was no response. The file subsequently – and reluctantly – was closed. In a global business environment in which securities markets are becoming increasingly interconnected, and where multiple markets are open to investors, situations such as this
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can, paradoxically, undermine investor confidence, thereby jeopardising further the integrity of world securities markets. With increased capacity for cross-border trade via globalisation and new technologies, "transactions", as the author puts it, "cannot now easily be guaranteed", and it's therefore all the more difficult for securities regulators intent on protecting market integrity across jurisdictions. A core problem here is that market abuse offences can be dealt with only by national securities regulators. As the possibility of an international regulator with teeth is currently remote to say the least, other strategies must be found. This book therefore focuses on the work of the International Organization of Securities Commissions (IOSCO), which assists securities regulators in the collecting of evidence needed to aid the prosecution of market offences. Various improvements to these processes can be put in place, which the author is happy to suggest. To this end, specific cases are cited as examples of how market abuse can be detected, investigated and ultimately prosecuted. For professionals confronting such problems, this book is an important find, presenting as it does cogent arguments on a difficult subject, supported by a formidable amount of research. Note the 28-page bibliography and extensive footnoting. Practitioners involved in financial services as well as academics should therefore find this volume indispensable. The publication date is cited as at 29 December 2017.
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