HampshireLegal THE OFFICIAL JOURNAL OF THE HAMPSHIRE LAW SOCIETY | SUMMER 2020
Returning to work safely
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PUBLISHER Benham Publishing Aintree Building, Aintree Way, Aintree Business Park, Liverpool L9 5AQ Tel: 0151 236 4141 Fax: 0151 236 0440 Email: admin@benhampublishing.com Web: www.benhampublishing.com SALES DIRECTOR Karen Hall
Contents 04 HLS Contacts
Page 08
05 President’s Review
ACCOUNTS DIRECTOR Joanne Casey STUDIO MANAGER Lee Finney
06 Charity Quiz Night
MEDIA No. 1703
07 CPD Programme
PUBLISHED August 2020 © Benham Publishing Ltd. LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Media. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press. Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.
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10 Happenings in Hampshire
12 2020 and beyond
DISCLAIMER The Hampshire Incorporated Law Society welcomes all persons eligible for membership regardless of sex, race, religion, age or sexual orientation.
13 COVID-19: A safe system of work?
All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between members and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.
16 Disputed Will claims at an all time high
Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.
17 Ready for recovery
COVER INFORMATION Southampton, UK by Connor Holyday from Unsplash.com
Copy Deadlines Autumn 31 October 2020 Winter 03 February 2021 Advertising Anyone wishing to advertise in Hampshire Legal please contact Karen Hall before the copy deadline. karen@benhampublishing.com 0151 236 4141 Editorial Anyone wishing to submit editorial for publication in Hampshire Legal please contact Alison Plenderleith before the copy deadline. bdo@hampshirelawsociety.co.uk
08 Council Report
Page 16 Page 17
18 Wellbeing 20 Junior Lawyers Division
21 Mediation in the
wake of Coronavirus
23 Virtual AGM Follow us on social media @hampshirelawsoc https://www.linkedin.com/company/hampshireincorporated-law-society/ HAMPSHIRELEGAL | 3
HLS CONTACTS
Hampshire Law Society Contacts The following is an up-to-date list of committee members’ names and addresses and the sub committees to which they belong:
President James Gleisner Trethowans Botleigh Grange Business Park, Hedge End, Southampton SO30 2AF DX 154120 Southampton 48 Tel: 02380 820465 Email: james.gleisner@trethowans.com Deputy President Mo Aldridge Jasper Vincent 44 Queensway, Southampton SO14 3GT Tel: 023 8063 3225 Email: maldridge@jaspervincent.com Deputy Vice President Tom Mitchell Trethowans Botleigh Grange Business Park, Hedge End, Southampton SO30 2AF DX 154120 Southampton 48 Tel: 02380 820465 Email: tom.mitchell@trethowans.com Honorary Secretary Ian Robinson Churchers Solicitors 13-18 Kings Terrace, Portsmouth PO5 3AL DX 2205 Portsmouth Tel: 0239 288 2001 Fax: 0239 286 2831 Email: irobinson@churchers.co.uk Honorary Treasurer Tom Mitchell Trethowans Botleigh Grange Business Park, Hedge End, Southampton SO30 2AF DX 154120 Southampton 48 Tel: 02380 820465 Email: tom.mitchell@trethowans.com Immediate Past President Joe Robertson Email: jrobertson2006@hotmail.co.uk
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Business Development Officer Alison Plenderleith Tel: 07429 523183 Email: bdo@hampshirelawsociety.co.uk Law Society Council Members Nick Gurney-Champion (Hampshire & Isle of Wight) Biscoes 67 Union Street, Ryde, Isle of Wight PO33 2LN Tel: 01983 615615 Email: ngc@biscoes-law.co.uk Razi Shah (North Hampshire) Appleby Shaw Trinity House, 15a Trinity Place, Windsor SL4 3AS DX 3830 Windsor Tel: 01753 860606 Fax: 01753 860620 Email: rshah@applebyshaw.com Administrator Nicola Jennings Tel: 023 8044 7022 Fax: 023 8044 7022 Email: administration@ hampshirelawsociety.co.uk Complaints Mo Aldridge maldridge@jaspervincent.com Education & Training Anthony Harris (Chair) ajharris@clara.co.uk Anastasia Ttofis David Ankcorn Tom Mitchell Membership Sarah Coates James Gleisner Sarah Huck
Contentious Russell Evans russell.david@yahoo.co.uk Kevin Richardson Joe Robertson Non Contentious Matthew Robbins Nick Gurney-Champion Alex O’Sullivan PR (inc Social) Mo Aldridge (Chair) maldridge@jaspervincent.com Jonathan Rees Kristina Colmer Sarah Hallett Regulatory Adrienne Edgerley Harris (Chair) Adrienneedgerleyharris@gmail.com Ian Robinson Roderick Hursthouse
Follow us on Twitter @hampshirelawsoc Follow us on LinkedIn https://www.linkedin.com/ company/hampshireincorporated-law-society/
INTRODUCTION
President’s Review AUGUST 2020
I
knew when I became President of Hampshire Incorporated Law Society that it would come with certain tests along the way, however I was not quite expecting the situation that we have all ended up in. I commend the work of everyone through this time though, not only on the HILS committee but across the profession as a whole. I believe that many firms have made their own way through this and are starting to come out the other side. This is not to say that there will not still be testing times ahead, and some of the most testing may still be to come, but the way the profession is handling the situation, for the most part, seems to be very promising. For our part, HILS are still working on ways we can help our members and the profession going forward. Discussion are on-going regarding our membership and we hope to make an announcement on this shortly. We have also responded to the National Law Society’s consultation on the practicing certificate fee and many of you may have seen a bit about this in our e-news mailshot sent around recently. We are still here and we are still working for the good of the profession and our members, therefore if there are any queries or suggestions then please do let us know.
attended have all been cancelled due to the pandemic but I am sure that the calendar of events will be full again next year and we can drive the society forward. The main thing is that the society is still here, our newly structured sub-committees are in full flow, and we are keeping active for the profession. In terms of events, we will be holding our annual quiz still and although we cannot get together in person for a few drinks and some good food, we will be holding the same on a video conference platform for all to attend and bring your own food and drink. This will hopefully mean that we can get to see some of our colleagues in the north of the county who are just as an important part of our membership but sometimes find it difficult to make it to events in the south. I look forward to seeing many of you for that. I wish you all well in the meantime and look forward to seeing you all once more, when we are further down the road of course. ■
James Gleisner
President Hampshire Law Society
For my part personally, this has been a bit of a scaled back year as President. Many events, dinners and conferences I would usually have HAMPSHIRELEGAL | 5
Hampshire Law Society presents our annual charity
(via Zoom)
Wednesday 15th September Make up a virtual team with you colleagues, family or friends and join us for a fun frivolous evening. We invite you to make a donation of ÂŁ5/hd. This will all go to our nominated charity, Mountbatten Hampshire. Contact Nicola on administration@hampshirelawsociety.co.uk to book your place and for more information. 6 | HAMPSHIRELEGAL
CPD & TRAINING
CPD programme
2020/21
W
e are currently working on getting all the dates sorted for the lectures for next year, details of which are included on the flyer sent with this magazine and on the website. These will be delivered via Zoom to start with pending future developments. There will be also be adhoc webinars provided. If you or anyone in your firm would like to provide a talk or you have heard a speaker who you would like to recommend to us, please contact Nicola on administration@ hampshirelawsociety.co.uk. ■
A Zoom conference sparked an interesting debate
W
ould you sit in front of a computer and watch a 3 hour webinar?’.
The general consensus was no, that being sat in front of the computer for that long and having to engage with watching something without a break was not something most people felt they would do. This raises a couple of interesting points: a) do most office workers not sit at a desk for periods in excess of 3 hours concentrating on their work b) most people manage to watch a film which can easily be 2.5 hours without a break and do not consider that their attention wanders from the plot line or characters c) if we attend a lecture or seminar we sit in our seat for 3 hours without issue Allowing for the fact that most of us may get up for a drink or comfort break, which of course would still be possible on a webinar – what is the difference for us?
This is one of the fascinating by-products of remote working, we are truly remote, we do not relate to people or engage in the same way as we do when physically present in an office. There has been a lot on social media and in some news coverage about how the pandemic has given people the ability to re-evaluate their positions and understand they can in fact work from home and achieve a better work / life balance. We operated in effective isolation for 3 months, how has our mental health and ability to socialise been affected? Do we crave going back to a physical office environment or do we want to adapt to our new ‘normality’ to the extent we will resent being forced back to our daily commute, office interactions and social niceties. Will lockdown have taught us to value what is important and make us realise how inane some of our day to day stresses actually are, or will we all say we will remember how this feels but within weeks have fallen back in to our original routines with the same stresses and strains and ultimately have learned nothing?
Is it that we regard being physically present at an event more engaging than sat behind a computer screen or is it that we accept the social aspect of being physically present exerts more social pressure on us to engage than when we are cocooned in respective isolation behind a screen?
Take this time to reflect on what is important to you, work out what you value, work out what you need. We may never get another opportunity to truly engage with ourselves to figure out what makes us tick! ■
Either way it is an odd situation that most people would not attend a 3 hour webinar because they couldn’t concentrate / sit still / engage for that long when on a daily basis office workers will spend in excess of 6 hours at their desks and on their computers.
Mo Aldridge
Jasper Vincent & Hampshire Law Society Vice President
HAMPSHIRELEGAL | 7
REPORT
Council Report T
he Law Society Council met remotely once more on 15 July. The discussions focused on the work being undertaken to support our members through the COVID-19 crisis and the work to strengthen the ability of the Society to support our members in the most effective way possible. COVID-19 policy work COVID-19 is having a profound impact on Solicitors and the future shape of the profession. Council heard how the Law Society’s membership and policy teams have continued to address urgent issues as well as looking forward to the longer-term impacts on members, their businesses, access to justice and the rule of law. We announced the release of the ‘Return, Restart, Recover’ campaign. Access to justice As with practically every other area of work, the pandemic has dominated and we have focused on member safety and business support. Positive moves included the protocol to ensure that our members’ safety in police stations has been embedded in the Police and Criminal Evidence Act codes which gives the protocol added force. Courts are now required to complete a risk assessment and make it available to users. We are working with HM Prisons and Probation service on how face-to-face prison visits can be safely restarted as well as with the judiciary and other stakeholders on increasing the number and type of face-to-face hearings that can be held in courts. Meanwhile we are monitoring the longer-term effects of the pandemic on access to justice and the rule of law and contributed so far to inquiries by the Women and Equalities Committee on the impact of people with protected characteristics under the Equality Act, the Housing, Communities and Local Government Committee on homelessness and the private rented sector, and the Joint Committee on Human Rights inquiry on the human rights implications of the Coronavirus Act 2020. COVID Business support Among other issues, we have been focused on the accessibility of existing support measures for members – as well as pushing for additional support. We have produced and contributed to guidance to support members in many aspects of running their business during the pandemic including guidance on return to the office and virtual execution. On crucial issues relating to legal aid firms and business rates we have not seen the sort of support from the Ministry of Justice that we would have liked. So, we have stepped up communications highlighting the issues and criticising the failure to act. Criminal and Legal Aid One of the things we have pushed for in the context of the support legal aid firms need during the pandemic is the restarting of the pre-existing Criminal Legal Aid Review (CLAR) and work on civil sustainability. We have had meetings with officials to discuss both issues. We have also engaged with the Legal Aid Agency. Meanwhile the stay on possession hearings
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has been extended until the end of August and the Law Society is currently in talks with the relevant bodies about making legal aid available for tenants once hearings restart. HMCTS The court service is conducting an evaluation of the rapid roll-out of technology as a result of the pandemic. We are on a working group overseeing this. Public Affairs Council was told of successes in our parliamentary and public affairs work, with the Law Society and its campaigns mentioned in Hansard 17 times and 32 times on social media. The team organised high-level stakeholder engagement on our priority issues with: ■ The lord chancellor Robert Buckland QC ■ the justice minister Alex Chalk ■ profession and business services minister Nadhim Zahawi ■ EU committee chair Hilary Benn ■ shadow justice secretary David Lammy ■ shadow attorney general Lord Falconer ■ Lib Dem justice spokesperson Daisy Cooper and ■ chair of the housing, communities and local government committee Clive Betts. Law Society president Simon Davis made written representations to the lord chancellor, chancellor and housing secretary on legal aid firms, business rates and access to justice. Regulation In addition to our COVID work, work on regulatory issues has continued including influencing in relation to the SQE, engaging on the economic crime levy and responding to the Mayson report as well as preparing to engage on the LSB’s three-year strategy. Wales Our response to ‘Making Justice Work in Wales’ welcomed the Thomas Commission’s long-term vision for the future justice and noted that as the body of Welsh law grows, it is important that due consideration is given to the distinct needs of the Welsh public and the legal profession in Wales. International Rule of Law The team has been very active during the COVID period – work has included a joint statement on Hong Kong and a statement on Egypt delivered before the UN human rights council. He also gave oral evidence to the EU services subcommittee of the House of Lords. Governance Robert Bourns, the chair of the Law Society Board, was confirmed in post for a further three years and, that business concluded, much of the remaining time was devoted to the work the Law Society has been doing to support the solicitor profession through the COVID-19 crisis. One of the effects has been to postpone the annual general meeting (AGM) until October when we hope life will have returned to something more like normality, and to ensure continuity of
REPORT
leadership during this time. Simon Davis will therefore stay as president until then. Of course, that also has implications for council elections which have also been moved back, such that new Council members will take office at the AGM. Also that month, council will elect a new deputy vice president – the nomination process for which has already concluded – and the existing office holders will each move up a rung as Simon Davis steps down. As he remarked – by then not only the longest serving president but the one who has spent most time working from a spare room.
My Law Society (MLS) and our new website are now live. We will be encouraging existing MLS members to set a new password. The new system has a simpler registration journey and will allow us to generate better data so content can be more tailored and targeted. Meanwhile the beta launch of ‘Law Society Learning’, our new Learning Management System (LMS), will continue over the summer. The LMS hosts brand new bite-sized learning modules as well as full digital risk and compliance accreditation. We continue to operate in a very challenging period for the profession and the public. Our efforts on their behalf must continue relentlessly. ■
© The Law Society, Chancery Lane, London by The wub, Wikimedia Commons. CC BY-SA 4.0.
Internal Governance Regulations (IGR) A compliance statement on the alterations to our regulatory arrangements has now been submitted to the Legal Services Board. Council also agreed further amendments to our General Regulations, which will shortly be published on the website, strengthening the governance support provided to our Board, and confirming the agreed terms of reference of the Membership and Communications Committee. IGR compliance work continues with training implemented for staff and developed for council and committee members as we move toward the establishment of the Solicitors Regulation Authority as an incorporated sub-entity with the Law Society Group.
New website The development of our digital platform continues.
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HAPPENINGS IN HAMPSHIRE
Dutton Gregory welcomes two new Equity Partners
L
ocal law firm Dutton Gregory celebrates the appointment of two new Equity Partners, Head of Residential Property, Paul Sams, and Head of Litigation, Andrew Witt. With both Partners joining the firm in recent years, staff, clients and friends of Dutton Gregory are thrilled with their new appointment, following the significant impact each have had on their individual departments as well as the firm as a whole. With over 27 years’ experience, Andrew Witt specialise in commercial dispute resolution and mediation. Heading up the commercial litigation department, Andrew works with his team to provide efficient and successful solutions for their clients. As a nationally-recognised expert in residential property, Paul Sams’ expertise as well as specialist knowledge in equity release and leasehold enfranchisement has been a huge benefit to his team and their clients, as well as the property developers and other professionals Paul works alongside. Looking ahead, Andrew and Paul will work as part of Dutton Gregory’s partnership and its Management Board to ensure the delivery and continued plans for growth and success, even in light of the recent worldwide impact of the Coronavirus pandemic. Speaking on their recent equity partnership appoints, Paul Sams said: “Dutton Gregory is so financially secure and a successfully run collective unit that, despite the world not being what it once was, I have no doubt the firm will continue to flourish in this new path to the future we all have to take. I definitely want to be a part of that. “Since the Partners appointed me to the Management Board, I want to continue in helping to grow the firm. We are all encouraged to express our opinions which the Partners listen to which is so refreshing in a law firm. Managing Partner Andrew Tilley is a great leader and delivers on his ethos that, as a firm, we are all about people – our staff, clients, referrers, and contacts.” Paul Sams
Andrew Witt said: “I was asked to join the Management Board last autumn and was then invited to become an Equity Partner in early 2020. Then the COVID-19 pandemic came into our lives. It would have been easy to have had a change of heart, but life is not easy at the best of times. For that reason, I wanted to reinforce the fact that I believe, as do my fellow Partners, that Dutton Gregory will be stronger in the Andrew Witt long-term despite the current difficulties faced by us all. The aim has to be to turn a negative into a positive and Paul & I both believe we can contribute to that process.” ■
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Resolve UK Mediator, Russell Evans at the IDRC.
Mediator Russell Evans wins UK Mediation Award
H
ampshire’s very own Russell Evans, a Senior Mediator at Resolve UK has been recognised in the national and international mediation community, winning the ‘Mediation Expert of the Year in the United Kingdom’ – Global Advisory Experts Award 2020. After cutting his cloth at CEDR including as a Mediator & Arbitrator on their dispute resolution panels, Russell has for many years been a mediator and arbitrator at Resolve UK a national dispute resolution panel accredited by the Civil Mediation Council. On receiving the award Russell said: “It is a great honour and privilege to be recognised in the mediation community not only for the work I have undertaken for large corporations and government agencies but for charities and the under privileged. As Mediators we strive to help all those in need and to create a brighter more productive future.” Russell has judged both national and international mediation competitions and is an expert not only in resolving commercial and partnership disputes but contentious probate, proprietary estoppel and tolata claims. As part of an initiative to confront the Coronavirus epidemic, Russell and his colleagues set up an Online Mediation forum to enable individuals and businesses to resolve disputes from the safety and comfort of their home or office. Russell is pro-active in empowering parties to unlock their future. ■
HAPPENINGS IN HAMPSHIRE
Portsmouth Legal Specialists at Heart of Abuse Scandal A
team of legal specialists in Portsmouth is taking an increasingly high profile role at the centre of the most shocking child abuse scandal the UK has ever known. As the Independent Inquiry into Child Sex Abuse, IICSA, carries out its long-awaited public hearings as part of an investigation into the running of children’s homes in London which has engulfed Lambeth Borough Council in accusations of alleged negligence, physical and sexual abuse, corruption and conspiracy, a growing number of victims are turning to legal practice Verisona Law to have their voices heard. ‘We have managed, and are currently dealing with, over 290 cases in the past two years, so far securing £6.7 million for nearly 200 claims through Lambeth Borough Council’s compensation scheme,’ says Marie Forbes, a Historic Abuse solicitor who heads up the team located in Portsmouth’s 1000 Lakeside offices. ‘We represent One of the largest groups of core participants giving evidence in the investigation.’ Verisona Law is one of the specialist law firms working in partnership with The Shirley Oaks Survivors Association, SOSA, set up by Raymond Stevenson and Lucia Hinton which began its own investigation into Lambeth children’s homes Angell Road, Monkton House, Ivy House, South Vale, and – most notorious of all – Shirley Oaks Children’s Home, which Lambeth owned and ran from 1965 until its closure in 1983. Since Shirley Oaks Children’s Home was able to accommodate up to 400 children in Lambeth Borough Council’s care at any one time, SOSA was able to galvanise over 1,600 individuals to give evidence in an interim report that identified 120 paedophiles and resulted in Lambeth Borough Council setting up a £100 million redress scheme for claims of physical, racial, sexual and psychological abuse, many cases resulting in learning and physical disabilities. ‘As revelations are being made public in the current IICSA hearings, we are receiving more and more enquiries by email, phone and text of people wanting to confide their experiences and find out what help is available to them,’ says Lisa Gafarov, who has been present on every day of the IICSA public hearings, her work including statements and transcripts contain the evidence of clients she represents. ‘Over the course of 55 years, people have moved around the country, some across the world and we are hearing from people still in London, locally in Hampshire, elsewhere in the UK and all over the globe, each with their own, often quite harrowing story.’ ■
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HAPPENINGS IN HAMPSHIRE
2020 and beyond – Risks or Opportunities
Thoughts by Peter Taylor, Managing Partner of Paris Smith LLP
T
he onset of environment in which we have found ourselves reminds me of the time when I was a child, watching a tropical storm from the beach. As dark clouds filled with torrential rain approached across the sea, I felt the increased strength of the wind and knew that I was powerless to stop it. The options were to run for cover or make the most of the change. I did the latter and got soaked, but had fun on the beach making the most of the experience. There are a number of core elements to one’s approach as a part of the leadership team to addressing this fast-changing environment. Management teams across the country will have implemented basic practical steps to ensure remote working, manage cash flow and reduce discretionary spend. At a strategic level, leadership teams will have reviewed their key drivers. The first should be an acknowledgement that one can only change what one can change. That may sound obvious, but if one spends time dwelling on the situation which has arisen globally and is impacting all of us, then leaders are not making best use of the time and talents available to them and the firm. For Paris Smith, we have focused on how we deliver our purpose to clients and the community from numerous remote locations – and how best to maintain the team spirit of the firm. The purpose of the firm is steadfast and as relevant now as it ever was, arguably more so. We believe that businesses with an established sense of purpose embedded throughout the organisation and in their culture, have a strong foundation to weather the storm and come out stronger. They will focus tightly on how to deliver their business proposition and what they do. Having secured that element, one can then turn one’s attention to looking at how we adapt to the new world of business during the period of the virus and beyond.
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Communication has been crucial inside and outside the firm. People have a range of emotions and they will remember how others made them feel during this period long after the virus has passed. The staff at Paris Smith have been loyal for many years and it has felt instinctive to stand beside them and lead them through things, day-by-day and week-by-week. We have provided frequent communications on our plans, actively encouraged social media amongst the staff and provided tips on how to look after one’s mental well-being when working remotely. Understanding how they might be feeling is so important. Now is the time, above all, to show one’s emotional intelligence and empathy with staff. We have made a point of ensuring that there is no vacuum of communication in the firm that could result in the ‘chimp’ in the brain of any member of staff taking charge (The Chimp Paradox – Prof Steve Peters). Treating each day as an opportunity to learn and work collaboratively has been important. Paris Smith has embraced the change and the chance to enhance one’s skills and knowledge, while reaching out for support and the thoughts of others. We aren’t afraid to show vulnerability; none of us have all the answers. We are in unprecedented times and we have a mind-set to embrace the challenges that the change is giving us and to find solutions. It does require one to work hard, assess, plan, act and review. There is an opportunity to come through this strongly. Prepare for the reasonable worst-case scenario, but plan for the best outcome. Seize the opportunities presented by whatever the circumstances in which you find yourself may be. Be realistic about the present whilst being optimistic about the future. ■
ARTICLE
COVID-19: A safe system of work? A
s law firms cautiously begin to plot a return to the office in the coming weeks as lockdown is gradually eased, they need to be alive to potential pitfalls that could leave them exposed to employers’ liability claims. In this article, James Robins and Ivan Roots of Womble Bond Dickinson, who are specialists in defending law firms, identify some of the key issues and how to address them.
employee establishing a breach of duty by demonstrating that the appropriate measures were in place and being followed in their offices.
The duty Law firms owe a duty of care to their employees in respect of their health, safety and wellbeing. This is a broad duty which includes, amongst other things, providing employees with a safe place to work and safe work equipment.
The uncertainties regarding the source, transmission, incubation and symptoms of COVID-19 have been widely reported. All of these factors would make it difficult for an infected employee to prove that their office was the source of infection, and that they contracted the infection as a result of a breach by their employer.
In order to establish breach of duty an employee must show that their employer has been negligent. If successful, employees may be entitled to compensation as a result of any loss or injury which was caused, or materially contributed to, by such negligence. Following the strict lockdown measures that were imposed in March, many firms across the country made arrangements for their employees to work from home. However, now that restrictions have started to ease, firms need to consider how to re-open their offices safely whilst complying with both their ongoing statutory duties and the current HSE guidance. Mitigation Once fee-earners and support staff start returning to the office, the onus will be on firms to implement the necessary measures to mitigate against the effects of the spread of COVID-19 in their offices. In particular, firms will need to demonstrate that they have implemented a safe system of work which is being followed by employees, and can be readily adapted and reassessed in accordance with updated guidance as a result of any new or increased risks. Firms should therefore ensure that they are well informed as to the current requirements of employers in light of the pandemic, and the HSE guidance on the risks of COVID-19 in the workplace and how to mitigate its spread should be under continuous review. The current guidance suggests that firms should be taking the following preventative measures in order to reduce the risk of infection in the workplace to the lowest practicable level by: ■ complying with social distancing; ■ promoting regular handwashing and surface cleaning; ■ not allowing those who are unwell to attend offices. With the above in mind, it is therefore essential that firms and their insurers ensure that a risk assessment has been carried out to identify the risks of transmission within their offices and the measures to implement in order to minimise those risks.
Causation In addition to proving breach of duty, an employee must show that the employer’s breach materially contributed to their injury.
However firms should be mindful of how the courts may approach the issue of causation as and when employer liability claims begin to arise. By way of example, it is worth noting that the courts have adopted a more sympathetic approach to claimants in respect of potentially comparable asbestos claims. In such claims, claimants are not required to prove where a single level of asbestos which caused them injury was inhaled – as this would be near impossible to prove. Instead, it is sufficient to establish whether an employer has materially increased the risk of harm to employees. For now, in light of the uncertainties about how the virus spreads, it seems unlikely that the courts will adopt the same approach with COVID-19 claims but only time will tell. Injury and damages So far, it has been suggested that as many as 80% of infections are mild or asymptomatic. For firms this means that many potential claims are likely to be limited in value due to the low levels of injury actually caused. By contrast, employees will need to carefully consider the cost implications of pursuing such claims against firms, particularly in light of the difficulties in proving breach and causation outlined above. What’s next? The unpredictable nature of COVID-19 has left many law firms unable to plan further ahead than a few weeks at a time. However, law firms should be ensuring that their risk assessments are a constant priority over the coming weeks and months. With COVID-19 likely to be with us for the foreseeable future, law firms need to be ready to demonstrate that they are doing all they can to identify and mitigate the risks of transmission of COVID-19 within their workplaces in order to protect their employees. ■
James Robins
Partner Insurance Womble Bond Dickinson
Ivan Roots
Associate Professional Risks Womble Bond Dickinson
Measures will include more frequent cleaning of workspaces, limiting the number of people using shared facilities such as lifts, kitchen areas and toilets as well as providing reception and front-of-house staff with relevant protection (i.e. masks, sanitiser and screens where necessary). In addition to reducing the risk of transmission, a risk assessment will also help firms to reduce the risk of an HAMPSHIRELEGAL | 13
ARTICLE
If you have a 1 October PII renewal date, act now!
N
ick Gurney-Champion, Chair of the Law Society’s Professional Indemnity Insurance (PII) Committee, issues an important warning to solicitors: if your firm has a 1 October renewal date, then you should already be arranging new cover. Most solicitors’ firms still renew their PII on the old common renewal date of 1 October. This has always created something of a bottleneck, with brokers and underwriters rushing to process proposals in time for the deadline, but the problems are more pronounced during a hard market. Given that conditions were already taking a turn for the worse in 2019, the additional uncertainty created by COVID-19, the lockdown, the looming recession, and question marks around the outcome of Brexit trade negotiations, mean that October 2020 could be the most challenging renewal period for solicitors since the move to the open market back in 2000. The Law Society’s PII Committee maintains a dialogue with the insurance industry, and at a roundtable discussion in mid-July, brokers and underwriters set out some of the new difficulties that are likely to confront solicitors as they seek cover this October. Act now! The first and most important point is that firms should already be talking with brokers about finding cover. If you have not yet done so, make it a priority now. Insurers are understandably reluctant to take on new risks at the moment, and many are not actively seeking new clients. Insurers’ more cautious approach means that firms will be expected to provide much more information up-front on this renewal, including details about risk management, the firms’ finances, evidence of ongoing profitability and continuity planning. Firms will be required to answer additional questions about how COVID-19 and the lockdown have affected their business including use of the furlough scheme, plans for redundancies, supervision of home workers, and the steps that have been taken to minimise risk. Take care filling in forms It is a sellers’ market now, so you will need to impress prospective underwriters that you are a good risk. In the same way that you would not look favourably on a job applicant whose CV is riddled with errors and omissions, underwriters take a dim view of poorly completed proposal forms. Make sure your answers are full and accurate. Check with your broker to see if they are sufficiently comprehensive to enable underwriters to consider your proposal in the best possible light. Ensure that all requested documents are included, and up to date. Don’t hold back in expanding your answers to provide context for certain statements that might otherwise make your proposal less attractive. Levels of Premium Almost all firms can expect to see substantial increases in their premiums this October (especially if you are coming out of an 18- or 24-month policy). Evidence from the April renewal has
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revealed that larger firms faced some of the biggest increases in premiums, especially in the layers above the minimum. According to one study, firms’ premiums increased by an average of 15% this April, but firms with turnovers of £50-£100 million saw increases of around 40%. Firms should brace themselves for average increases of around 30%, but those with bad claims records should expect far higher increases. Some areas of practice, such as conveyancing and criminal law, have been particularly badly affected by the imposition of the lockdown, so if you find yourself in such circumstances, talk to your broker about how best to present yourself with prospective underwriters. Manage your finances Due to increased premiums, review your budget and make the necessary adjustments. Even if you have not previously sought premium financing, it may be worth considering in the current circumstances. PII premiums can be a hefty up-front cost and being able to spread out payments over a longer period will help with cash flow. Arranging finance this year will be more challenging than it has been historically, so don’t wait until you get your quote to make enquiries. Do it now, in tandem with your PII renewal. One possible source of finance for some firms could be subsidised loans in the form of the Coronavirus Business Interruption Loans Scheme (CBILS). CBILS provide businesses, with an annual turnover of up to £45 million, access to loans of up to £5 million, repayable over a period of up to 6 years. The UK Government will meet the cost of fees and interest payable to the bank in the first year, and most lenders do not require the borrower to begin making any repayments until year 2. This scheme closes to new applicants at the end of September 2020. Further Advice The Law Society has produced advice about how to go about seeking cover in light of the pandemic and lockdown. This will be updated as necessary over the coming months: www.lawsociety.org.uk/topics/coronavirus/coronaviruscovid-19-renewing-your-firms-pii. ■
ARTICLE
Critical elements every legal website homepage must have W
hen people visit your website, you have 7-15 seconds to capture their attention before they click away – that’s how important it is to make a great first impression. Your homepage is the gateway to the rest of your website and the first step to attracting new clients, showcasing your legal expertise and providing key information. However, it is just as important to keep it free of clutter and make it easy to navigate. Too much information and distracting options will lower engagement and reduce the likelihood that people will stay on the site. Below are the elements that need to be included to convert a visitor into a client. What you do This is usually summed up in a clear headline followed by a sub-heading giving a bit more detail. A following paragraph can explain who you are, what you offer and who your clients are, giving a brief overview of your law firm or barristers chambers. Try and briefly explain why the reader should use you and not someone else by referring to any particular strengths that you have. You can include some information about each of your services but bear in mind that you are aiming for a sleek feel to the page. A great image A good website must be visually attractive, with a clean, uncluttered design and at least one great quality image. The majority of decisions about whether a site is credible are made on the basis of its appearance and design, so it is worth getting this right. Try and tie it in with your branding and services, such as family, property or business images to help the reader feel that they are in the right place. Easy navigation Visitors to the site need to be able to find exactly what they want quickly and easily. A menu icon or a bar across the top of the site are the most common places to navigate from. Anything else risks potential clients having to hunt around and simply giving up. It is also important to ensure that your site is responsive and easy to use on mobile and other devices, as clients are increasingly searching in this way. Social proof/testimonials Testimonials are incredibly persuasive. People like to hear that you have successfully solved a problem similar to theirs and a client’s own words are the best way of showing that. Don’t overwhelm the homepage with too many; one or two
glowing references should be enough, with a clear link to your testimonials page. Blog or news highlights Again, be careful not to swamp the page with too much information, but a row of maybe three links to your recent or top posts, together with enticing images, helps show your expertise and reassures the visitor that your site is being kept up to date. A way to contact you Potential clients should be able to see easily where to contact you, with an obvious ‘Contact Us’ button displayed in a prominent colour such as red. Make any contact form as easy as possible to complete by asking for minimum information – ideally, visitors should only need to add their name, email and a line of text asking you to call or giving brief details of their problem. Awards, memberships of associations and certifications Including the logos of the awards or achievements you have obtained is good for building credibility. It isn’t necessary to include any text beyond the basics of what it is and the year of any award. A clear Call to Action The whole homepage should build towards what you want the client to do next, such as fill in a contact form or sign up for a newsletter. Make sure they reach this point on the homepage by displaying it obviously and leading them to it, then ask them clearly to take the action you want. Social media links Finally, include links to your active social media pages. These are usually found at the bottom of the page or at the top-right, depending on your design. For a professional legal business, this is usually LinkedIn and can also be Facebook and Twitter and even Instagram. In summary When you have completed your homepage, try and look at it with fresh eyes and ask yourself if it answers all the obvious questions. If it clearly shows what you do, is attractive and welldesigned and steers the client towards their next step with you then you have the best possible chance of engagement from this initial contact. A practising solicitor for 15 years, Rachel Tombs now runs Orion Legal Marketing. ■ HAMPSHIRELEGAL | 15
ARTICLE
Disputed Will claims at an all time high C
urrent published statistics show that claims issued in the High Court in respect of contested Will disputes are at a record high.
The reasons for disputing a Will There are many reasons why a beneficiary who is disappointed by a Will or lack of one might want to challenge a Will.
I thought a Will was unchallengeable Let me start by saying that the above statement is in most cases correct. If a will is drafted correctly by a solicitor, the formalities are completed and the person making the will is of sound mind, then in most cases a Will is very difficult to challenge. My first piece of advice therefore is if your do not have a Will or it needs updating then seek advice from a reputable solicitor and it is likely that that Will cannot be challenged. My colleagues here at Biscoes can help with this.
This might just be because they have been left out or have not received as much from the estate as they thought they should in those cases, depending on circumstances, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 can be made.
Why then are challenges to Wills and disputes over inheritance increasing and at an all-time high There are many factors as to why Will disputes are on the increase, these can be summarised as follows: 1. It is estimated that up to 50% of the adult population do not have a Will at all. This means that if someone dies without a Will the Estate will be distributed in accordance with the Rules of Intestacy and this can lead to disputes. 2. The change in families and their diversity, often there are second marriages and children from both marriages believe they should inherit and when this does not happen disputes arise. 3. Increased life expectancy often means that a Will is either old and outdated and does not consider a change on circumstances or people are making Wills when they get much older and issues of capacity, i.e. whether someone had the mental capacity to make a Will arises. 4. Increase in property prices will often mean that a deceased estate is worth much more than it used to be which means there is more money to argue about and this increases the risk of disputes.
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Alternatively, there may be arguments that the deceased did not have capacity to make the Will, may not have understood the nature of the Will and their assets or may have been unduly influenced. There may be other reasons to such as promises that may have been made by the deceased to someone that they might inherit and upon reliance of those promises the disappointed beneficiary may be able to rely in certain circumstances on those promises. What should you do then if you find yourself in this situation? Firstly, you should act quickly as in some cases you only have a limited amount of time to claim or protect your position. You should seek advice from a specialist solicitor, preferably one with an ACTAPS qualification to explore your case and your options. â–
Kevin Richardson Biscoes
ARTICLE
Ready for recovery Jack Gardener
A
s businesses move from response to recovery, Jack Gardener of Phillips Solicitors has shared his experience and expertise online. He teamed up with Beaufort Financial who hosted a successful webinar aimed at business owners called Ready for Recovery. Jack, who is a director at the regional all-service law firm based in Basingstoke, discussed key areas which employers need to consider in order to ensure their businesses are well positioned to benefit from any uptick in the economy or survive a second lockdown or prolonged economic downturn. He briefly shared his experience of having bought Phillips with fellow City of London lawyer Max Hope in October 2018. They were making great progress in modernising and expanding the firm only to have the firm’s growth challenged by the Coronavirus lockdown. Jack explained: “We had overhauled the IT, added new operating procedures, brought in a variety of new clients and in February this year we merged with Brain Chase Coles. We then carried out a complete office refit and on March 6th I was thrilled that we had moved everyone into one office. But by the end of March we were all spread out across Hampshire and beyond thanks to COVID-19.” It was against this background that Jack wanted to share some of the lessons he had learned first-hand over the previous months from both the legal and commercial perspectives. In the webinar Jack covered three main areas: reopening your workplace, restructuring your workforce, and reviewing your business. He spoke about workplace risk assessments and the importance of discussing and involving employees in this process.
With businesses having to take a hard look at their workforce needs with changes in work patterns and reduced cashflow, Jack offered advice about restructuring and the difficult subject of redundancies and how best to carry this out, giving an idea of the time frames and steps involved for business owners looking to streamline their workforce, whilst possibly taking advantage of the furlough scheme. On a positive note, on reviewing businesses, Jack asked “What have you liked about the lockdown and the way your business is run? In our business it has meant that the naysayers of technology have finally had to embrace it and we’re going to be able to introduce flexible working in ways we had never considered before.” Referring to staff working from home, he said: “I think we’ve learned to trust people a lot more, our staff have really dug-in and helped us out. We have also spoken much more about mental health which I think is great.” “We’ve looked at other revenue streams and have been going out and getting more work. We’re now reviewing our processes thinking about how we can make these changes permanent or at least adapt our ways.” According to Jack it is also a good time to review suppliers and contracts and where possible renegotiate to make sure you are getting the best deal, as well as looking at your long-term business plans. Jack said: “The world has changed, and I think those businesses that adapt quickly will be the ones to benefit from the recovery as and when it happens.” You can watch the video via the Phillips website by visiting www.phillips-law.co.uk/news-and-events/ready-for-recovery. ■
“Risk assessments are a way to get your staff comfortable with coming back into your workplace,” said Jack who went on to discuss issues including face coverings, what to do if staff refuse to return to the workplace and bringing back people from furlough leave. HAMPSHIRELEGAL | 17
WELLBEING
Wellbeing L
awCare is there as ever to provide you with emotional support. You can contact them on 0800 279 6888, email at support@lawcare.org.uk or access live chat via the homepage www.lawcare.org.uk. The COVID-19 hub continues to be updated regularly with new resources including tips on returning to the office, acknowledging difficult feelings, how to future-proof your career and also includes links of our recent webinars for junior lawyers, sole practitioners and small firms and leaders. New Chair to board of Trustees LawCare has appointed a new chair to its board of trustees. Andrew Caplen replaces outgoing chair Bronwen Still as of this month. Andrew is a Solicitor, Notary Public and a former President of the Law Society of England and Wales (2014/2015), Chair of the Law Society’s Management Board (2010-2012) and Chair of the Law Society’s Access to Justice Committee (2008-2012). He has written and spoken widely on a range of justice and legal issues. Andrew is based in Hampshire and was a previous Hampshire Law Society President and a great supporter of the law profession locally. As President, Andrew particularly focused upon Access to Justice together with issues relating to Equality, Diversity and Inclusion. Whilst President he also supported and highlighted the work of LawCare. He has considerable experience within the charity sector and is currently Chair of Spurgeons’ Childrens Charity and a past Chair of Southampton YMCA. He has been a trustee of LawCare since 2018.
Andrew Caplen its work in providing awareness, support and that so needed ‘listening voice’.” Trustee Recruitment LawCare is recruiting up to four new trustees to strengthen the board and develop their work in supporting and promoting mental health and wellbeing in the legal community. It is an exciting time to join the LawCare board as the engagement about mental health in the legal community is significantly growing. For a role description and the recruitment process visit www.lawcare.org.uk. ■
Andrew said: “I am excited and honoured at the opportunity to chair LawCare’s Board of Trustees as it seeks to continue its soimportant work. Mental health and addiction issues sadly affect so many and the legal profession is by no means immune. It is difficult to underestimate the importance of LawCare and
Wanted – A Solicitors’ take on ‘back to work’
A
s we look towards returning to some normality, it’s crucial we take time to understand solicitors’ experiences over the last few months and ask what challenges might lie ahead, to be able to shape our support moving forward. The Solicitors’ Charity’s new survey looks at what you’ve experienced during the pandemic but also how the future looks to you and what concerns you may have.
www.sba.org.uk/covid-19/back-towork-survey
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Please could you take ten minutes to complete this survey and also please share with your colleagues to help them to provide the most accurate and widest view possible. ■
CHARITY
A message from Mountbatten, Hampshire – President’s Charity of the Year –
R
emember your loved ones and make new memories by taking part in Mountbatten Hampshire’s Sunflower Memory Walk 2020! 23rd July – 7th September.
Nigel Hartley
Mountbatten, Hampshire I
am delighted that the Hampshire Law Society have chosen to continue to support Mountbatten Hampshire (Countess Mountbatten Hospice).
As big events have had to go virtual this year, we’re asking people across Hampshire to pick their own 5k or 10k route and walk somewhere that’s special to them or the loved one that they’re remembering. Registration is just £15 per adult and £10 per child, with a sponsorship target of £75 each. Every pound fundraised goes to supporting Mountbatten Hampshire, who provide specialist, compassionate palliative care services and support to people with life limiting illnesses, as well as their families and carers. As an independent charity, community support helps enable us to continue to provide this essential care, for free. We would love for you to be involved this year, so please send in any pictures from your walks and we can share your achievements with your colleagues through the website. Sign up at www.mountbatten-hampshire.org.uk. Any questions contact Rachel Rawlings on rachel.rawlings@mountbatten.org.uk. ■
Our work is our message and what we do really matters to everyone living across Southampton City and the wider west Hampshire. We are your local hospice. Our new name gives us the opportunity to not only focus on our beds and outpatient services based in West End Village, but to acknowledge the thousands of people we care for on any one day within their own homes, including care homes. We also provide education and training to our partners, including our colleagues across the NHS. We know that the number of people needing our support will grow by 40% over the coming years, and we cannot and will not ignore anyone who needs us. Our expert teams, including trained nurses supported by a specialist medical team and a growing number of trained carers as well as psychologists, therapists, chaplains, counsellors and experienced volunteers need to be here to support those across our community who need us. We also support families and friends into bereavement with our experienced team of bereavement counsellors and volunteers. At Mountbatten we strive always to be the best we can be and with your continued support we can ensure that everyone who needs us gets access to our care and support services when they need them. As a relative of someone who died recently said to me ‘you all came into our lives at the most traumatic of times, but because of you all we have the best memories of the last weeks of my daughters life’. Thank you for continuing to support us to change both the living and dying of those who come to us. We remain extremely grateful. ■
HAMPSHIRELEGAL | 19
JUNIOR LAWYERS DIVISION
Update from the South Hampshire Junior Lawyers Division L
ike most of us over the past few months, junior lawyers up and down the county have been adjusting to working from home, furlough, and the “new normal” (whatever that might mean). The SHJLD has likewise had to adapt which has meant that we have had to rethink, rearrange and even postpone many of our events. However, one of our biggest success stories over the past couple of months is how we have been able to move our events online and we have now hosted two excellent events which have been well attended. How to survive (or thrive) during lockdown Back in May and during the height of lockdown, we were very lucky to be joined by Peter Taylor, Managing Partner of Paris Smith and Neil Bage, Founder of Be-IQ, who talked us through their experiences of working from home including top tips on how to thrive in the in the current conditions and going forward. This varied from practical advice (such as ensuring you have a structure to your day and working hard to impose clear boundaries between working and downtime) to more personal development and mental aspects (such as selfreflective journaling, focussing on things in our own control, and approaching a more senior colleague to ask for 1:1 mentoring). All those who attended found the session invaluable and we had some very positive feedback. Further summary of the event can be found on our social media. Trainee solicitor Q&A In June, we hosted a webinar specifically aimed at our trainee solicitor members. Trainees are facing a variety of issues unique to their position at this point in time ranging from the effect of furlough on periods of recognised training, to the prospects of qualification.
We were joined by Raj Bajwa (Regional Manager at Michael Page Legal) who was able to provide insight on the current market, and James Kitching (Corporate Solicitor at Womble Bond Dickinson, Executive Committee Member of the National Junior Lawyers Division and Law Society Council Member) who was able to discuss the advice and guidance the Law Society and National JLD have prepared. The session fielded a range of different questions including extension of training contracts, where to find support, the likely impact of furlough on recruitment prospects and provided tips on online interviews, tailoring your CV in the current climate and the process and impact of changing practice area post qualification. The trainees who attended said they found the session useful, particularly with one eye on qualification come September. SHJLD Elections We will shortly be coming to the end of the current committee year and will soon be rolling out our election process. As ever, we are always keen to welcome some new and old faces onto the committee and have a range of roles to suit everybody! If you know of any junior lawyers who would be interested, or if you would like any further information please do get in touch. Further announcements will follow in the coming weeks. Stay in touch For more information on the SHJLD, the above events, or our upcoming elections please go to our website (www.shjld. co.uk), social media accounts (South Hampshire Junior Lawyers Division SHJLD on Facebook, @theSHJLD on Instagram and Twitter), or feel free get in direct contact at committee.shjld@gmail.com. ■
Junior Lawyers – we’ve got your back D
o you work closely with Junior Lawyers? If so, we need your help in reaching those at the start of their careers. Please share this with colleagues. By now, you may be aware of our COVID-19 Support Hub and £1 million Personal Hardship Fund for those affected by Coronavirus. Since launching these a few months back, we’ve received a number of applications from a broad range of solicitors. One group in particular is Junior Lawyers. Recently we joined a webinar hosted by LawCare to highlight the help available for this group. Joined by representatives from LawCare, Solicitors Assistance Scheme and the Junior Lawyers Division, we discussed key challenges and signed posted where to receive assistance. www.sba.org.uk/junior-lawyers-weve-got-your-back ■
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ARTICLE
Mediation in the wake of Coronavirus – Court Guidance & Cabinet Directives
2020
has been a rollercoaster of a year from mid-winter storms and flooding to the ever emerging threat of COVID-19, court closures and social distancing. If recent WHO announcements and the previous Sars epidemic teach us anything, we are all in this very much for the long haul. Lord Burnett of Maldon, the Lord Chief Justice, has made it clear that the court system will never again operate as it did before the Coronavirus pandemic. Lord Neuberger of Abbotsbury, a former President of the Supreme Court, also appeared on Radio 4’s Today programme encouraging parties to consider mediation. We will all have to acclimatise to change and new working practices. We have all seen multiple headlines about Virtual Justice and Remote Hearings. Technology certainly has been pushed to the fore not least in world of Mediation where the use of ZOOM Pro has become the industry standard and default platform for ONLINE Mediation. In the wake of Coronavirus there has been a string of three cases in 2020 in which the parties who refused to mediate were financially penalised by the courts, laying down a marker for more stringent times ahead. Indeed as the Law Society has commented recent cases have provided “a very real economic incentive for parties to say ‘yes’ to mediation, because the price of saying ‘no’ has become rather costly.” Cases Post PGF II Litigation Solicitors will be fully familiar with PGF II which is embedded in the court and pre-action practice landscape. PGF
II itself came within the wake of a number of previous cases. With each new tranche of cases has come increased emphasis on the use of ADR. Amidst the clamour for the revival of the football league season another Football Club entered the legal arena and received a scolding at the hands of the courts. For local football fans fortunately this was neither Southampton FC nor Portsmouth FC but rather a more distant northern cousin. In DSN v Blackpool FC [2020] EWHC 670 (QB) which concerned a somewhat delicate matter involving a football scout, a claim for sexual abuse and vicarious liability, Mr Justice Griffiths stated: “No defence, however strong, by itself justifies a failure to engage in any kind of alternative dispute resolution” echoing the words of the Court of Appeal in N J Rickard Limited v Holloway & Anor [2015] EWCA Civ (unreported) where the Court of Appeal observed that “no dispute was too intractable for mediation.” DSN v Blackpool repeated the earlier observations of Sir Geoffrey Vos C in OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195 at para 39 where he stated: “The regime of sanctions and rewards has been introduced to incentivise parties to behave reasonably, and if they do not, the court’s powers can be expected to be used to their disadvantage. The parties are obliged to conduct litigation collaboratively and to engage constructively in a settlement process.” Continued on next page HAMPSHIRELEGAL | 21
ARTICLE
Continued from previous page In the somewhat more wordy and certainly more harrowing case of BXB v (1)Watch Tower and Bible Tract Society Of Pennsylvannia and (2) Trustees of the Barry Congregation of Jehovah’s Witnesses [2020] EWHC 656 (QB) an indemnity costs award was likewise meted out for a failure to engage in ADR. Similarly in Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd & Anor [2020] EWHC 1050 (Comm) which concerned pensions and commissions, a costs sanction was imposed for refusing to mediate. The tide is certainly turning strongly in favour of mediation as the go to platform for parties and solicitors alike and a number of commentators have referred to this being a watershed moment although the writing has been on the wall for some time. In Thakkar v Patel [2017] EWCA Civ 117 Lord Justice Jackson at para 31 stated: “The message which this court sent out in PGF II was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed. The message which the court sends out in this case is that in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, that will merit a costs sanction. In the present case, the costs sanction was severe, but not so severe that this court should intervene.” More sanctions for the unwary will certainly follow. It has become increasingly clear that judicial efforts to get parties to negotiate rather than litigate have moved away from the carrot towards the stick. Commentators have described it as a “relentless push towards mediation.”
As the Directive further states at Para 17: “The Government would strongly encourage parties to seek to resolve any emerging contractual issues responsibly – through negotiation, mediation or other alternative or fast-track dispute resolution – before these escalate into formal intractable disputes.” There is both judicial and political will to bring about a new way of doing things whether through telephone or video hearings or pro-active encouragement of negotiation and ADR. There are already significant court backlogs and in a socially distanced world cases will invariably take longer. Parties will be required to make genuine attempts to resolve their dispute and are likely to face tougher court sanctions if they do not. His Honour Judge Bird said that parties will be expected to “make all sensible efforts” to avoid trial. Within the wake of the above cases Offers to Mediate have even been referred to as “the new costs weapon.” Coronavirus has descended upon us clothed in a cape of fear and uncertainty, disruptive, climactic, foreboding, ushering in a sea of change but also promising opportunities for transformation. Mediation may help you shoulder the burden of client needs and expectations and move forward to a brighter and more productive future. ■
Russell Evans
Mediator Mediation Expert of the Year in the United Kingdom – GAE Award 2020
Cabinet Office Guidance On 7 May 2020 the Cabinet Office issued Guidance directed at both public authorities and private enterprise as to the conduct it would expect in relation to disputes arising out of contracts in the wake of the Coronavirus epidemic. Parties are specifically required to engage in “responsible and fair behaviour” which includes “requesting and responding to requests for mediation” (See Para 15).
Missing Wills Missing Will Elizabeth Anne Wilkinson Squirrels, The crescent, Romsey SO51 7NG DOB 21/01/1963 DOD 20/06/2020
Missing Will Brian Cook Cherry Trees, School Lane, Hamble SO31 4JD DOB 01/03/1937 DOD 20/05/2020
Missing Will James Henry Steen 37 Mercury Close, Southampton SO16 8BJ DOB 17/11/1942 DOD 09/05/2020
Missing Will Daphne Gladys McHugh 16 Bracklesham Road, Hayling Island PO11 9SJ DOB 28/03/1923 DOD 19/05/2020
22 | HAMPSHIRELEGAL
Hampshire Law Society VIRTUAL AGM Tuesday 1st December at 6.00pm (via Zoom)
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Join us on: 29/07/20 10:41:46 HAMPSHIRELEGAL | 23
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