Summer Issue 2015
SurreyLawyer THE VOICE OF SURREY SOLICITORS
Cyber Security Trojan Horses, Malware and Viruses
(cover story)
Inside this issue: ~ Local News ~ Focus on Probate ~ P. I. Insurance View our new website: www.thameswater-propertysearches.co.uk/SL
Contents Intro PUBLISHER Benham Publishing Limited 3tc House, 16 Crosby Road North, Crosby, Liverpool L22 0NY Tel: 0151 236 4141 Facsimile: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com
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President’s Jottings
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CEO Report Local Issues
8-13
Local News
12-13
SLS celebrates Magna Carta 800th Anniversary
ADVERTISING AND FEATURES EDITOR Anna Woodhams STUDIO MANAGER Neil Lloyd
List of officers
Property 14
ACCOUNTS Joanne Casey
Legal Profession in Denial of Capital Allowances as Commercial Property Owners lose £2.1bn in tax relief Finance
MEDIA No. 1397
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PUBLISHED June 2015 © The Surrey Law Society - Benham Publishing
New rules for death benefits Professional Practice
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. Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us. DISCLAIMER The Surrey Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation.
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72 legal data breaches
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Wine of the Season Cyber Security
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A Proactive Cyber Security Strategy with SERO Security
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Cyber risks: How safe is safe?
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Targeting Cyber Security
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Why Is ISO 27001 Certification Important For Law Firms? Conveyancing
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Speed up house buying with the personal touch
All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.
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Baby boomer home 'hoarding'
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Code of Conduct change affecting Solicitors’
Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.
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Renewal preparation
COVER INFORMATION The cover image from: © Frank Kovalchek, Flickr.
Copy Deadlines Autumn 2015 Issue Winter 2015 Issue Spring 2016 Issue Summer 2016 Issue
21st August 17th December 27th February 5th June
Anyone wishing to advertise in Surrey Lawyer please contact Anna Woodhams before copy deadline. Email: Tel:
anna@benhampublishing.com 0151 236 4141
Anyone wishing to submit editorial for publication in Surrey Lawyer please contact Sue Seakens, before copy deadline. Email: Tel:
sueseakens@surreylawsociety.org.uk 01344 860830
P. I. Insurance
Probate 26
Investment Overseas and the Impact on Estates
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Dealing with a “digital legacy”
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Heir Hunters shed light on long lost brother
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The SRA’s new approach to CPD - how Title Research can help Legal News
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Your Legal Friend announces appointment of leading Counsel for Quindell PLC group action
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Leaving their beloved four-legged friend without an owner
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Surge in ‘DIY’ justice sparks guidelines for lawyers
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'Rich Kids of Instagram' Management
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Important Costs Case Law Updates - Bircher Jennings
Surrey Lawyer 3
Officers PRESIDENT
COMMITTEE MEMBERS
LAW SOCIETY COUNCIL MEMBERS
SUSHILA ABRAHAM
MAREK BEDNARCZYK Hart Brown Resolution House, Riverview, Walnut Tree Close, Guildford, GU1 4UX DX 2403 Guildford 1 Tel: 01483 887704 Fax: 01483 887758 Email: msb@hartbrown.co.uk
DAVID STEED Harold Bell & Co 174 Kingston Road, Ewell KT19 0SD Tel: 0208 393 0231 Fax: 0208 393 0155 Email: ds@haroldbell.co.uk
S Abraham Solicitors 290A Ewell Road, Surbiton KT6 7AQ Tel: 020 8390 0044 Email: office@sabrahamsolicitors.co.uk
VICE PRESIDENT
WIN CUMMINS 18 Station Approach, Virginia Water GU25 4DW DX 94652 Virginia Water
DANIEL CHURCH TWM Solicitors LLP. 65 Woodbridge Road, Guildford GU1 4RD DX 2408 Guildford 1 Tel: 01483 752700 Fax: 01483 752899 Email: daniel.church@twmsolicitors.com
ELIZABETH EYRE Barlow Robbins LLP Church House, 30 Church Street, Godalming, Surrey, GU7 1EP DX 58351 Godalming 2 Tel: 01483 417121 Fax: 01483 426836 Email: elizabetheyre@barlowrobbins.com
DEPUTY VICE PRESIDENT MARK GOUGH Solicitor 22 Woodlands Road, Little Bookham, Surrey KT23 4HF Tel: 01372 230786 Email: mark@markgoughlaw.com
HON SECRETARY KIERAN BOWE
SIMON KENNY Moore Blatch LLP 2 The Green Richmond TW9 1PL DX 100252 RICHMOND 2 Tel: +44 (0) 208-334-0312 FAX: +44 (0) 208-332-8630 E-mail: simon.kenny@mooreblatch.com
Kingston upon Thames, Surrey, KT1 1QN DX 31546 Kingston upon Thames Tel: 020 8541 2041 Fax: 020 8541 2009
CHIEF EXECUTIVE & MAGAZINE EDITOR Sue Seakens Surrey Law Society 18 Station Approach, Virginia Water GU25 4DW Web: www.surreylawsociety.org.uk DX 94652 Virginia Water Tel: 01344 860830 Fax: 01344 428511 Email: sueseakens@surreylawsociety.org.uk
SUB COMMITTEES
GLORIA MCDERMOTT 18 Station Approach, Virginia Water GU25 4DW DX 94652 Virginia Water Email: gloria.mcdermott@virginmedia.com
QUO VADIS (Strategic Planning) Daniel Church (Chair) Nick Ball Marek Bednarczyk Mark Gough Ken Seakens
JULIE ROWE Russell-Cooke Solicitors Bishops Palace House, Kingston Bridge, Kingston upon Thames, Surrey, KT1 1QN DX 31546 Kingston upon Thames Tel: 020 8541 2023 Email: Julie.Rowe@russell-cooke.co.uk
CONVEYANCING & LAND LAW Win Cummins (Chair) Gary Score* Maralyn Hutchinson* Ken Seakens Matthew Truelove*
Russell-Cooke Solicitors Bishops Palace House, Kingston Bridge,
JOHN PERRY Palmers Solicitors 89-91 Clarence Street Kingston upon Thames, KT1 1QY DX 31524 Kingston upon Thames Tel: 020 8549 7444 Fax: 020 8547 2117 Email: john.perry@palmerssolicitors.co.uk
Email: kieran.bowe@russell-cooke.co.uk
HON TREASURER NICK BALL Howell Jones Solicitors 75 Surbiton Road, Kingston upon Thames, Surrey, KT1 2AF DX: 57715 Surbiton Tel (Office): 020 8549 5186 Tel (Fax): 020 8549 3383 Email: nick.ball@howell-jones.com
KEN SEAKENS Seakens Solicitors 18 Station Approach, Virginia Water GU25 4DW DX 94650 Virginia Water Tel: 01344 843666 Fax: 01344 844584 Email: ks@kseakens.co.uk IAN WILKINSON The Castle Partnership 2 Wey Court, Mary Road, Guildford, Surrey GU1 4QU Tel: 01483 300905 Email: ian@castlepartnership.co.uk
FINANCIAL Nick Ball (Chair) Kieran Bowe Mark Gough Ken Seakens SOCIAL Mark Gough (Chair) Daniel Church Gloria McDermott John Perry* Julie Rowe Ken Seakens *Non-Committee Member.
membership details Annual Subscriptions:
£85 per person, per year.
Corporate Subscriptions:
(20+ fee earners) £1,700 per year
Solicitor
(not in private practice) £55
Solicitor
(not practising) £30
Honorary Membership:
free
Associate Membership:
free - no voting rights
4 Surrey Lawyer
To apply for membership please contact: Sue Seakens, Chief Executive Surrey Law Society, 18 Station Approach, Virginia Water GU25 4DW Web: www.surreylawsociety.org.uk DX 94652 Virginia Water Email: sueseakens@surreylawsociety.org.uk Tel: 01344 860830
Editorial
President’s Jottings Summer 2015 As we all embrace the warmth, sunshine and the summer holidays, perhaps it is time to reflect on where are we as a profession? We continue to see the struggles faced by our legal aid practitioners. Though we commemorate three historic battles this year, one of the biggest battles for freedom we face as a society today is not being fought on the battlefield against other nations, but in the corridors of political power. Today, Britain appears to have lost sight of the basic principle of “Access to Justice”, one of the cornerstones of a democratic and free country, with the attacks we have suffered by our own government against family and criminal legal aid.
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ur Courts are flooded with litigants in person, judicial time being wasted and delays experienced to cases being heard swiftly. More than that, whilst there may not be bloodshed, we are creating chaos, confusion and emotional trauma for vulnerable families who feel they have nowhere to turn in their crisis. So, as a Society and Surrey lawyers what can we do? Engaging more with those around us to bring about a change, speak with one voice and this can be done with the help of our young lawyers. They are the successors of our profession. I am very pleased that I have been able to engage with young Solicitors in Surrey and during this time have forged good relations with them and I encourage them to come forward. This can only be achieved if young lawyers are supported by their firms. As to consultations, I would requests that each firm replies to consultations. Currently, the Law Society is consulting with members on the proposed PC fees for the financial year. Please participate, we do need our voices heard. Since my last Jottings I attended the very enjoyable University of Law Student Quiz night and presented the SLS prize of £100. Then on 27th April, we had our own Legal Brain of Surrey Quiz, a challenging evening and enjoyed by all present. The winners Gordons Partnership topped the leader board with 93%. Well done to James Gordon and his team. It was encouraging to see so many young solicitors and trainees attend the evening. The month of May was busy for me as I had the Sole Practitioner’s Conference at Forest of Arden and the Law Society’s Presidents & Secretaries conference on the same dates. I came to London to
attend the Presidents & Secretaries Conference and then back to the Forest of Arden for the rest of the SPG Conference. The focus of the TLS conference was Access to Justice. It was a great pleasure to attend the Past President’s dinner in honour of our Immediate Past President Marek Bednarczyk which was held at the Inn on the Lake, Godalming. It was well attended and graced by many former presidents of the Society. On 21st May I attended the Guildford annual president’s lunch sponsored by Index Property Information and my thanks to all who attended. On 22nd May I was invited to attend the annual dinner of the Kent Law Society which included an achievements awards for their members. A very enjoyable evening. We had the Surrey Legal 10 km Walk on 1st June 2015. Together with my husband I represented the Society and we completed the walk with good weather on our side. We raised on behalf of SLS the sum of £401.25. I was surprised that donations were still coming in as I penned my jottings. Thank you to everyone who has supported this cause as it is very important that Surrey Law Centre continues their work to help those in need. I had the honour of being invited by the Master of Rolls, the Director-General of the National Trust and the chairman of the Surrey County Council to attend the Magna Carta Foundation of Liberty Runnymede 800 Commemoration event on 15th June at Runneymede. HM The Queen was in attendance and HRH Prince William unveiled a major new art installation of the 12 jurors (12 bronze chairs) on the Meadow. There was the rededication of the American Bar Association’s Magna Carta memorial.
I met with the artist Hew Locke who is a sculptor and contemporary British visual artist based in Brixton, London. The highlight of this summer has to be our Magna Carta Celebration Dinner on 18th June when 220 guests joined us at the Runnymede-on-Thames Hotel, a perfect venue being so close to where the Magna Carta was sealed. Not only a celebration of 800 years of the sealing of the Magna Carta, but also 200 years of the Battle of Waterloo and 600 years of the Battle of Agincourt. Our distinguished guests included Sir Geoffrey Bindman QC, the High Sheriff of Surrey, Deputy Lieutenant of Kingston and HHJ Peter Brits QC. It was a fabulous, entertaining and enjoyable evening with guests from as far as Yorkshire and the Isle of Wight. I was very pleased to see in attendance quite a number of young lawyers. A packed evening with good food, music, dancing and a great performance by Mrs Bennett’s Ballroom dancers showing off ballroom dancing of 200 years ago. I would like to thank our sponsors Index Property Information, Willis and Lexis Nexis and all of you who attended to make this event a sterling one. I would like to thank photographer Kevin Poolman for his excellent work and Toastmaster Matthew Biggin for helping to make the evening run smoothly. Do take a look at the photographs of the evening in this issue. SLS CPD events continue and there are other events being planned for the rest of the year. I will be attending the Local Law Societies conference on 26th June organised by Monmouthshire Inc. Law Society in Newport. Let us move forward positively and enjoy a great summer. n SUSHILA ABRAHAM, President Surrey Lawyer 5
6 Surrey Lawyer
Editorial
CEO Report Summer 2015 From the outside the summer may seem like a very quiet time for Surrey Law Society, and indeed we have very few meetings and no more CPD until September. But the truth is that this is one of the most important times of the year for the administration team.
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laine and I now set to work on the CPD programme for 2015-2016, armed with the feedback from this year’s delegates, other members and speakers. We also liaise with our colleagues in some of the other 118 local law societies around the country to see what topics they are finding popular. Once all this is collated we set to work with a panel of committee members to select the top 16 topics and speakers for the new programme. This leaves us at least 4 sessions to add in hot topics as they arise over the coming year. As we are all aware the government, the SRA, The Law Society and other regulatory bodies will always be ready with new challenges for the profession to address. If you or your colleagues have any additional feedback for us on topics or speakers, please do get in touch on 01344 860830 or email Elaine Jacobs at elaine@surreylawsociety.org.uk Despite all this forward planning we are still only half-way through this year’s programme with much more to do, including our two major annual conferences - the Private Client Conference which will be held on Thursday 17th September and the Conveyancing & Land Law Conference which will be on Thursday 22nd October. Both conferences will be at the Hilton Hotel in Cobham as usual and will provide 6 hours CPD running from 9.30am to 5.00pm with free lunch, all refreshments and free on-site parking. The full fee for these one-day events is £180 including VAT. Full details of both
events are available on the SLS website at www.surreylawsociety.org.uk Early Bird Bookers will pay just £156 including VAT by booking and paying for their place before 31st July. One year on we now have all the feedback analysis and reports from the major Membership Consultation we ran last summer. My grateful thanks to all those of you who willingly gave us your time and shared with us your experience of the Society and its activities. It was pleasing to find that most people valued their membership and the benefits provided but it is clear that we have much to do to meet all your expectations and become more relevant in this rapidly changing professional marketplace. So now the work begins! We are already starting work on a new website which will be easier to navigate and contain one-click links to courses, jobs and social events. An online ‘browse, book and pay’ facility will also return but in a far simpler format and greater use will be made of social media functions including Twitter, LinkedIn and Facebook.
in the life and work of the Society. If you are interested in finding out more we would be delighted to welcome you as an observer at one of our meetings and have a simple application form which explains how the committee works and how you can get involved. Please contact me at sueseakens@surreylawsociety.org.uk or call me on 01344 860830 for an informal chat about what we do. Please do keep an eye on the website to find out about the current CPD programme, future social events and of course the jobs and opportunities for the legal profession in Surrey. Best wishes for an enjoyable summer… see you in the autumn. n SUE SEAKENS, CEO Surrey Law Society
As always we are keen to encourage membership of the Management Committee, especially at this exciting and challenging period of strategic change and development of the Society. We currently have four vacancies on the Committee and are particularly keen to hear from younger members of the Society who would like to take part
Surrey Lawyer 7
Local Issues
Introduction: The Law Society Regional Manager - Bhavni Fowler I am really grateful to Surrey Law Society for giving me this opportunity to introduce myself to the members in the region, as the interim Law Society Regional Manager for the South East. Having joined the Law Society in April 2015, I have spent a busy few months getting to know members and gain a good understanding of the challenges and successes of the profession within the region.
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he Law Society maintains a regional structure of managers in the nine English regions and Wales. The aim of this regional network is to build closer relationships between individual members and firms, and the Law Society, so that we are better able to represent our member’s views. In addition, the network thrives to increase members' awareness of Law Society activities, and help forge partnerships and strategic alliances with key external stakeholders in order to add value to our members' businesses. One of the key priorities for the Law Society at present is to give consideration to our longer term strategy to ensure that you, our members, are at the heart of what we do. We are aware that the profession and marketplace is evolving and we need to develop to support it: funding cuts, changes in regulation and changing technology are just some of the issues we are championing and representing the profession on. However, with the speed of change nowadays, we are taking a hard look at how we will continue to support, promote and represent you for the next few years.
Subsequently, we have launched our “Law Society 2020” discussion. This is a chance for you, our current and future members, to tell us how we can best represent, support and promote your practice and the profession in future years.
Law Society 2020: What are we going to do? We are developing a new strategy. To help us put members at the heart of what we do, we will be asking questions about: •
what the future looks like for the legal sector
•
what regulation should look like
•
the title of solicitor and its value to the profession, business and the public
•
what the Law Society's role should be in legal education and professional standards
•
how we should manage our relationships and influencing activities to achieve the changes our members want
•
how we tailor what we do to support, promote and represent different parts of our membership
Pictured: Bhavni Fowler.
We need your views about the future of the profession and what you want from the Law Society. The decisions you help shape now will influence your Society and your profession in the future.
How can you take part? I would welcome the opportunity to discuss your thoughts with you either by arranging a face to face meeting or a telephone call. Alternatively, please feel free to email me your thoughts or questions directly. If I do not have the opportunity to meet or engage with you in relation to Law Society 2020, then I really look forward to meeting and working with as many of you as possible over the coming months. n Bhavni Fowler Regional Manager (South East) The Law Society Email: bhavni.fowler@lawsociety.org.uk Tel: 07580 977 090
Surrey Lawyers walk again this year to support free legal services The Hart Brown teams including our current President, Sushila Abraham, and our Immediate Past President, Marek Bednarczyk, signed up to participate in The Guildford Legal Walk on 1st June this year. This annual walk follows 10km through the Surrey countryside. It is organised by The London Legal Support Trust and locally it raises funds for the Surrey Law Centre. This is an independent charity that provides a valuable service to the community in the form of free legal services, based on the principle that access to justice should be equally available to everyone. Events such as the Legal Walk are crucial to the funding of the Surrey Law Centre. n 8 Surrey Lawyer
Pictured: The Hart Brown team, consisted of Marek Bednarczyk, Kate Bednarczyk, Richard Hughes, Danielle Collett-Bruce, Adam Thomas, Jennifer Clark, Debbie Beswick, Julian Waldon, Rachael Brad and Gary Score.
Local Issues
Award Winning Downs Solicitors LLP Surrey-based, entrepreneurial law firm, Downs Solicitors LLP, is delighted to announce that its Residential Property team has been voted “Best for Customer Service” in the Inaugural Property Forum Awards 2015 which are hosted by Searchflow. The Awards celebrate excellence, achievement and innovation in the conveyancing industry. These exclusive awards consist of six carefully chosen categories designed to identify leading firms that set definitive benchmarks for excellence. The awards are open to any law firm who provides conveyancing services in the UK.
Richard Cunningham who manages the residential conveyancing team said “This is an excellent result for the whole team who all work incredibly hard to make sure that they provide an exceptional service and deliver the highest standard of care to the firm’s clients. Our ethos is not to be the cheapest but to be the very best at what we do. This award recognises us as one of the best in the conveyancing field.” Commenting on the award Chris Shipley, the firm's senior partner, said "We are very proud to win the award which recognises the residential property team’s commitment and dedication to ensuring our clients receive the best possible service throughout every step of a transaction.
Moving house is a very stressful time and our clients appreciate the personal approach the team takes with each and every transaction.” The team were also highly commended in the category of “Residential Conveyancing Firm of the Year (50 employees or fewer).” Impressionist and comedian Rory Bremner presented the award to Richard Cunningham, Christine Eves and Alex Muir from Downs Solicitors LLP. They were joined by Managing Director of Searchflow, John Pickford. n More information about Downs Solicitors LLP can be found at www.downslaw.co.uk
ULaw 2015 Mooting Competition
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n Thursday 26th March, four GDL students boldly set about mooting an extremely advanced point of family law, on the matter of an application to temporarily (or was it permanently?) remove a child from the jurisdiction. District Judge Hammond, who sits in Staines and has heard a number of such applications at first instance, asked some taxing questions and was very impressed with the students' ability to respond. In the end the first prize was won by the Appellants, Harriet Ballard and Alexander Maunders. The Respondents, who had an uphill battle on the law but put up a good fight, were Millie Garden and Philipp Mueller. Well done to all four and thank you to Lexis Nexis for generously sponsoring the prizes for the winning and runner up teams. Thank you also to barristers from Guildford Chambers, who judged the earlier rounds. n For further details about this and other events at the University of Law (ULaw) please contact Helen Carter, Senior Tutor and Leader of the Weekend GDL Course. Tel: 01483 216836 Email: Helen.Carter@law.ac.uk Surrey Lawyer 9
Local Issues
University of Law acquired by leading Education and Training Group The University of Law (“The University” or “ULaw”) announced on 1st June that it has been acquired by Global University Systems BV (“GUS”), a leading education and training provider with global interests and ambitions. Following the sale, ULaw will continue to operate as a distinct academic institution, retaining the strong governance structures which have helped establish its reputation for academic excellence. John Latham will continue to lead the University as President & CEO together with the rest of the executive team. Immediately post completion, GUS will initiate a Strategic Options Review of all its UK regulated businesses, assisted by external expert advisors. That Review will consider the optimal structure for the combined ULaw and GUS UK group. It will also look at whether existing GUS UK entities can benefit from ULaw's proven approach to quality assurance, enhancement and the attainment of the highest standards of regulatory compliance. The Review will report to the GUS UK and ULaw boards. This process may see re-alignment of some, or all, of GUS UK’s existing businesses under the umbrella of ULaw, so that post the Review, the ultimate oversight of academic standards, quality systems, processes and practices rests with the University. Such an arrangement would combine the University’s strengths in providing sectorleading student outcomes and employability, with GUS affiliates’ broader subject base, international reach and track-record of innovation (which was recently recognised with a Queen's Award for Enterprise). GUS and ULaw have also entered into a formal Governance Agreement that is consistent with the arrangement made between the University and its previous owners Montagu. This will ensure that the governance systems and management team that have helped drive ULaw’s success are retained. The University’s commitment to quality
10 Surrey Lawyer
and standards has helped it deliver some of the highest student satisfaction and employability rates in the higher education sector. In the 2014 National Student Survey, ULaw was ranked joint 2nd amongst universities with a student satisfaction level of 92%, while the employability rate for ULaw’s LPC graduates in 2013 stood at 98%. Similarly, the GUS Group’s existing subsidiaries and associates have established an outstanding reputation for professional accountancy training and innovation in online education. Most recently, 15 of its students were prizewinners in the December 2014 ACCA (Association of Chartered Certified Accountants) examinations, scoring in the top 20 places worldwide. The change of ownership will make available to the University substantial additional capital and enable it to accelerate delivery of existing plans for further growth, diversification, and geographic expansion. Increased funding will also be provided to the University of Law’s scholarship programme, which
has expanded significantly over recent years. Former Education Secretary of State David Blunkett will Chair the Board of the University, which will retain the previous scale of representation of Independent Non-Executive Directors. n For further information about ULaw please visit www.law.ac.uk
Local Issues
Council Member’s Report by John Perry
By the time you read this, another Law Society Year will be over and among other things we will know the identity of the two Surrey Council Members following the election. Whatever the outcome I am sure the two elected will do their very best to further the interests of the Surrey Solicitors in all things to do with The Law Society. One thing we do know is that Joe Egan has been elected the Deputy VicePresident starting with the AGM on 9th July. He is a much respected lawyer specialising in Crime and is ideally placed to continue the Legal Aid fight on behalf of The Law Society. Andrew Caplen has had a fine year as President. Hardly a day goes by without a missive from him directly or the contents of a speech made here, there and everywhere. He has been particularly useful to the Southern Area Association of Law Societies (his local group practising as he does in Hampshire), and arranged the January Meeting to take place at Chancery Lane with Catherine Dixon, the new Chief Executive. This kind of contact between the grass roots of the profession and those fighting on its behalf essentially in Government and elsewhere is invaluable in ensuring that the views of the profession at the coal face are properly represented at National level.
Things continue apace at Chancery Lane with long Council Meetings with heavy agendas. It is a stated objective of the Law Society to engage more with its Members and you may have noticed increased activity in that respect with regular Circulars on many different subjects and Road Shows and the like. In return it is important that the profession knows that facilities that are available at the Law Society for use, in many cases free, by the profession. For a start there is the building itself, and if you are in London it is an excellent place to meet clients or over coffee, or something stronger in very pleasant surroundings. The Library is under used and the Staff are always very happy to help with finding literature, cases etc. that may not be available elsewhere.
of examples of Practice Notes, literature and other advice which is available from the Law Society freely able to be used by individual Solicitors up and down the country. As you break for the Summer recess, (although we don’t really), I must give mention to the Magna Carta Dinner at Runnymede. I have been connected with the local Law Society in one form or another for over 35 years and I cannot remember a more prestigious occasion for the Society with the great and the good in numbers meeting at the very home of the Rule of Law. It is good to know that our profession is as solid now in preserving the rights of individuals in the country as it was 800 years ago. If you are having a break in the Summer I wish you a refreshing and invigorating one and if you are too busy at work, better luck next year! n
If you go on the Solicitors’ Section of the Law Society website you will find a host
Education
New Employers Guide for Recruiting Surrey Graduates University of Surrey is very pleased to present their new employer guide, Recruiting Surrey Graduates, available to download at http://www.surrey.ac.uk/careers/documents/employers/201516%20Employer%20Guide.pdf This document outlines the different ways in which they facilitate engagement between employers and Surrey students. The University is also delighted to announce that booking is now open for their Autumn Careers & Placements Fair on Wednesday 14th October from 11am until 2.30pm. The fee is £450 plus VAT. For further information or to book a stand, please get in touch with the Employer Relations Unit (contact details right). Surrey’s programme of employer-led skills workshops and employability events is a critical part of their offering to students, and they are grateful to all those who support them in this endeavour. Please let them know if you would like to be involved in the programme. You can find details of the events they run in the Recruiting Surrey Graduates brochure.
Contact: Amy Molin, Nicole Tillyrou or Judith Taylor Employer Relations Unit Careers Service University of Surrey Philip Marchant Building Guildford GU2 7XH Tel: 01483 683866 or 01483 689302 Email: careers_events@surrey.ac.uk Website: www.surrey.ac.uk/careers
Surrey Lawyer 11
Local Issues
SLS celebrates Magna Carta 800th Anniversary Magna Carta is the foundation stone supporting the freedoms enjoyed today by hundreds of millions of people across the globe. Enshrining the Rule of Law in English society Magna Carta limited the power of authoritarian rule and paved the way for trial by jury. So it was only right that we, the legal profession in Surrey, should have celebrated the anniversary right here where it all began - in Runnymede.
S
urrey Law Society held a Magna Carta 800 Charity Dinner on Thursday 18th June at the Runnymede Hotel with over 220 guests. It was an excellent evening and the feedback from all those who joined us has been very good. Our 2015 President, Sushila Abraham, entertained a Top Table of VIP guests including our Guest
Speaker Sir Geoffrey Bindman, Elizabeth Kennedy High Sheriff of Surrey, Colonel Geoffrey Godbold Deputy Lieutenant for Kingston, HH Judge Peter Birts QC, Linda Lee Past President of The Law Society and the current Presidents of four local law societies – South London, Isle of Wight, Berkshire, Buckinghamshire & Oxfordshire, and Middlesex.
The evening commenced with a Members’ Reception followed by a 3 course dinner with wine. During the meal we were reminded that 18th June was also the 200th Anniversary of the Battle of Waterloo and were treated to a dancing display by six dancers from Mrs Bennett’s Ballroom. The dances were those that would have been seen at the ball held on the eve of the battle. After dinner our President proposed the toast to the guests of the Society and spoke about her passion for the
12 Surrey Lawyer
Local Issues profession and her experience as a sole practitioner. She also spoke briefly about her chosen charity for 2015 - the Surrey Autism Support Centre’s Advocacy Services - an encouraged everyone to dig deep and support the charity by purchasing raffle tickets during the evening. Sir Geoffrey Bindman responded on behalf of the guests and spoke at some length about the validity of celebrating Magna Carta and its impact on communities around the world in the 800 years since King John was forced to place his seal on the first document. After the speeches we were entertained by The Spotlight Band and members danced the rest of the night away, with a short interlude when the raffle prize-winners were announced. Sadly some of the winners had already left so we will be attempting to unite the missing winners with their prizes in the days following the event. Prizes included spa sets, champagne, chocolates, wines, vintage port, rare malt whisky and magna carta memorabilia and we raised the magnificent sum of £1,505 to send to the Surrey Autism Service to support their excellent work with children, adults and carers across the county. n
Truly a night out to remember. All photographs courtesy of Kevin Poolman.
Surrey Lawyer 13
Property
LEGAL PROFESSION IN DENIAL OF CAPITAL ALLOWANCES AS COMMERCIAL PROPERTY OWNERS LOSE £2.1BN IN TAX RELIEF • •
Almost three quarters (73%) of solicitors are unlikely to alert their clients about the importance of capital allowances Almost four in 10 (37%) solicitors believe it is not their responsibility to ensure that capital allowances are assessed
•
Catax Solutions estimate £2.1bn in capital allowances tax relief went unclaimed since the implementation of the Finance Act 2012 in April 2014
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Four in five (80%) solicitors unaware of all legislative changes set out in the Finance Act 2012, and the impact this has had on commercial property transactions
3 June 2015 - According to research by the Law Society and capital allowances specialists Catax Solutions, there is a worrying level of confusion among solicitors in their approach towards capital allowances, which could leave them open to risks ranging from loss of income, to client complaints and litigation. The data reveals that almost three in four (73%) are unlikely to draw their client’s attention to the importance of the capital allowances, while almost four in 10 (37%) solicitors believe it isn’t their responsibility to ensure that capital allowances are assessed. And of those that are willing to explore the tax relief, only 2% admit to taking the initiative to instructing a capital allowances specialist.
Investigating the impact of the new Finance Act 2012, which came into force in April last year, a staggering four in five (80%) solicitors aren’t aware of all the legislative changes on the way capital allowances are claimed during a commercial property transaction. This could be a contributing factor to the £2.1bn that has already been lost by UK commercial property owners. The figures has risen £0.5bn in the Q1 2015.* Although there is a lack of awareness and perhaps a trend of passing the buck, there is an appetite among the legal profession to understand capital allowances more. The survey of professionals revealed that seven in 10 (70%) solicitors would like to know more about this tax relief available to commercial property owners. Those solicitors who embrace capital allowances relief can expect it to position them as trusted advisors, drive increased customer satisfaction and be lucrative for both themselves and their clients. Although 53% of respondents predicted a growth in transaction volume over the next 12 months, those who were more complacent about capital allowances were more likely to expect a slowing growth rate in the future.
Mark Tighe, managing director at capital allowances specialists Catax Solutions, added: "There is no doubt that there is an acute need for a greater awareness of this complex tax area, and in particular, its effect on transactions and the extent to which solicitors are compliant. “Solicitors have a specialist role just as GPs have a duty of care towards their patients. As the legal counsel, a solicitor plays a pivotal role in guiding a client when intending to buy or sell a commercial property. This means the solicitor has a duty to be aware of capital allowances. Remaining silent, and failing to alert clients of these new rules, could certainly bring their professionalism at disrepute.”
Ian White, chair of the Law Society's property section committee, said: "This report demonstrates that attitudes towards capital allowances differ significantly between solicitors who take action only to avoid risks such as litigation, and those who are embracing the changes and seeing the commercial benefits. "Capital allowances work is beneficial to both solicitors and their clients. It need not delay property transactions, so I would urge all solicitors involved in commercial property transactions to make the most of capital allowance relief. “Capital allowances are available to any business incurring capital expenditure from buying commercial property. Commercial property owners are entitled to a tax relief in the form of capital allowances on qualifying items. Solicitors have been obliged to raise the issue of capital allowances relief since April 2014. “Solicitors have a duty to provide advice to clients on capital allowances. The Law Society endorses Catax Solutions, which advises solicitors and provides support on fully understanding and addressing responsibilities in the property transaction process.” n For more information, visit: www.cataxsolutions.com
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Finance
New rules for death benefits Martin Clarke, technical analyst at financial specialist, HFS Milbourne highlights how the new ‘pension freedoms’ affect death benefits for those in defined contribution pension schemes.
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awyers involved in private client work need to be aware of recent changes to death benefits for those individuals in defined contribution pension schemes that have come into force as part of the new ‘pension freedoms’. From April 2015, individuals can pass on an unused defined contribution pension to any nominated beneficiary when they die, rather than paying the 55% death tax charge that may previously have applied on death of the pension scheme member. Clients who wish to benefit from this update will need to ensure that their existing scheme can accommodate these changes as providers are under no obligation to extend the new rules to older pension plans. It might also be impossible to make changes after the pension holder’s death so it is practical to review existing pension plans as part of an estate planning exercise.
So what’s changed? Individuals with a drawdown arrangement or with uncrystallised pension funds will be able to nominate a beneficiary to pass their pension to if they die. If the individual dies before they reach the age of 75, they will be able to give their remaining defined contribution pension to anyone as a lump sum completely tax free, if it is in a drawdown account or uncrystallised.
If the nominated beneficiary is a basic rate taxpayer the withdrawals can be limited to avoid breaching the higher rate threshold. Likewise, if the recipient is a non-taxpayer they can take out money tax free up to their personal allowance each year.
Nominees, dependents and successors Pre 6 April 2015, the rules restricted those who could inherit a drawdown pension or annuity to dependants. The new rules expand the range of income beneficiaries to include “nominees” (anyone who is not a dependant, but is nominated by a member) and “successors” (anyone nominated by a nominee or successor) as well as dependants. The member may nominate more than one nominee. This means that it is now possible for pension wealth to be passed to adult children within the pension wrapper rather than as a lump sum and there is no requirement for them to wait until they reach age 55 to access it. Keeping funds in a pension, rather than being paid out as a lump sum, means that all the tax advantages can be retained, such as limited tax on investment income, no capital gains tax, no inheritance tax.
Plan ahead to avoid losing outs
The person receiving the pension will pay no tax on the money they withdraw from that pension, whether it is taken as a single lump sum, or accessed through drawdown.
To illustrate, take for example, Mr Jones, a widower who died aged 85 who had nominated his only child, Peter, to receive his benefits.
Anyone who dies with a drawdown arrangement or with uncrystallised pension funds at or over the age of 75 will also be able to nominate a beneficiary to pass their pension to.
Peter, as a higher rate taxpayer, would pay at least 40 per cent tax on any benefits he took as income (or 45 per cent if he took the fund as a lump sum).
The nominated beneficiary will be able to access the pension funds flexibly, at any age, and lump sums paid in 2015/16 are taxed at 45%. Lump sums paid in subsequent tax years will be taxed at the recipient’s marginal rate. Income drawdown death benefits will also be taxed at the recipient’s marginal rate.
Pictured: Martin Clarke.
Even though all parties are in agreement and Peter believes his father would have supported the change, if the scheme administrator uses its discretion to pay to the grandchildren, they can only receive the benefits as a lump sum, not as a pension. The fact that this money can only be paid out as a lump sum means it will be taxed at 45 per cent if paid in 2015/16 and, assuming lump sums are taxed at marginal rates after this, it will be much more difficult to manage the tax liabilities than using a pension. If Peter and his father had reviewed the nominations and established Peter’s children as beneficiaries this would have solved the problem. For clients concerned about passing funds on in a tax efficient manner, it is crucial that nominations are reviewed when circumstances change, for example, following a death or divorce, the birth of a grandchild or great grandchild. n For more information please visit www.hfsmilbourne.co.uk
Peter would prefer that the fund was to be used to provide income to support his children at university who have no income. This would be a tax efficient use of the money as they could receive the first £10,600 each year tax free (2015/16 threshold) and pay basic rate tax on any further income up to the higher rate threshold.
Surrey Lawyer 15
Professional Practice
72 legal data breaches escalated to the Information Commissioner’s Office in 2014 New data reveals the reality of information security in the legal sector. A Freedom of Information request has revealed the number of data breaches reported to the Information Commissioner’s Office (ICO) during 2014. A total of 72 incidents came to light in which private data was mistakenly made available to the public by legal firms. The incidents included flaws within internal systems, poor processes and human error. Some of the key stats are summarised below: • The most common source of breaches was data being mailed, faxed or emailed to the wrong recipient in error. These simple human mistakes accounted for almost a third (23) of the incidents; • Closely following this was the loss or theft of physical paperwork. These breaches accounted for 21 of the incidents; • Devices passing out of the control of the legal firm with unencrypted information on them was another prominent cause of breaches (11); • Interestingly, data being hacked maliciously only accounted for one incident all year.
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Paul Doble, chief sales and marketing officer at DX, an independent secure mail operator for the legal industry, comments: “With the exception of certain civil servants, there is arguably no other profession that has quite as much responsibility for handling confidential information than the legal sector; an issue compounded by the fact that the information often belongs to other companies and interests. As such, the pressure on the legal industry to become watertight where private data is concerned is mounting. Security is particularly hard to guarantee and track with information on physical documents, and is easily compromised as documents pass through the UK’s mainstream mail networks. Whilst legal firms focus increasingly on cyber security, thought must also be spared for the secure transit of physical information. Sending documents through a secure postal network is a sure fire way to stop unencrypted information falling into the wrong hands.
Perhaps the biggest surprise revealed by the Freedom of Information request is not the quantity of breaches being reported, but the nature of the causes. Far outweighing hacking is the prevalence of human error, with accidental disclosures through mis-sent communications providing the leading cause. Email in particular is an undeniably necessary communication medium in today’s working world, but firms need to ensure they are doing the minimum due diligence required to ensure that confidential information can’t be shared with the wrong person or left vulnerable to attack. In addition to providing this vital protection, email encryption can also provide the missing piece in the jigsaw that law firms need to satisfy industry regulators, as it will allow them to demonstrate that they are compliant with the latest data protection regulations.” n
Professional Practice
Moore Blatch strengthens team with an experienced family solicitor
WINE OF THE SEASON with Conal Gregory, Master of Wine
Leading law firm Moore Blatch, which has offices in Richmond, Southampton, Lymington and City of London, has added to its family team with the appointment of experienced solicitor Daniel Chalmers. Based in the Richmond office, Daniel qualified as a solicitor in 2011 and has since specialised in the area of family law. Daniel is responsible for a wide range of clients and acts for them at all stages of the legal process from those seeking a divorce, to those involved in complicated financial relief cases, seeking to protect their interests through written agreements, pre and post nuptial agreements, and to those involved in complex court proceedings. photo: Daniel Chalmers Daniel typically represents clients in Children Act proceedings and has extensive knowledge of domestic violence and harassment cases.
Jan Galloway, partner, said: “Daniel is the third person to join our growing Family team in recent years. Collectively, we have a huge amount of experience in handling the full range of family related legal issues. Daniel is dedicated and hardworking and also has great empathy for his clients, a vital attribute. Daniel’s appointment is part of the firm’s plans to grow across all our offices in London and the South East.” n
Law Society Special Offer... 2014 Eagles Nest Viognier Usually £23.99 as part of a mixed 12, special introductory offer £22.90 per bottle.
NV La Chapelle Instinct Champagne Usually £27.99 per bottle. £240 per case of 12 that's £20 a bottle.
Chile has a reputation for making wines of real character at an affordable price. One of the country’s family-owned wineries is Viu Manent, situated in the Colchagua valley. Founded in 1935, its strengths are Cabernet Sauvignon and Malbec. Seek out Gran Reserva Cabernet Sauvignon, made largely still from vines over half a century old. The 2011 shows a raspberry red hue, inviting cherry fruits on nose and a rich, still tannin structure on taste. Great value at £11.90 (Spirited Wines).
For fish and poultry dishes this summer, the apricot and jasmine flower aromas of Viognier with appealing acidity are just right. Try Eagles’ Nest 2014 made at the foot of Table mountain in Constantia in South Africa. The grapes are handpicked and the wine is barrel fermented for six months. Dry and stylish, it has real class. £22.90 (Handford).
Sponsored by NFU Mutual Bespoke, high-value home insurance tailored to protect everything you value, including art, antiques, fine wine and more.
Visit www.nfumutual.co.uk/bespoke for further information.
other great deals at our shops, call: 01293 771 305 or go online: www.thevineking.com Surrey Lawyer 17
Cyber Security
A Proactive Cyber Security Strategy with SERO Security by Ben Millar, Director, SERO Security
VERY FEW ORGANISATIONS ARE AWARE OF WHAT PENETRATION TESTING ACTUALLY IS AND THE BENEFITS IT OFFERS IN TERMS OF REDUCING THE RISK OF NETWORK BREACHES. Penetration Testing is a pro-active method of identifying vulnerabilities and configuration weaknesses within your information systems, network infrastructure and IT procedures. By identifying these vulnerabilities and weaknesses, your organisation is able to significantly reduce the risk of being compromised by hackers and cyber criminals during cyber attacks. Organisations commission Penetration Tests for a number of different reasons. Any savvy Chief Information Officer (CIO) or Senior Information Risk Officer (SIRO) will commission a Penetration Test to ensure that the risk to their information from external threats is as low as possible. And in other cases, they are commissioned to meet compliance requirements. Lexcel is an accreditation within the legal sector, indicating quality in relation to legal practice management standards. The Lexcel "Standards for Legal Practices" guidelines make several references to Information Security Management and confidentiality of client data. In order to satisfy these requirements and achieve compliance, all compliant legal practices are required to demonstrate that their client information and digital assets are safe and secure from external threats. This can be achieved by conducting regular penetration testing to identify vulnerabilities and risks so that they can be reduced or completely mitigated. Many legal practices use third party IT companies to manage their network infrastructure and services. But in some
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cases, these third party consultants are putting your information at risk by using very poor security practices, as one of our clients found out (described in the case study).
Case Study
business and trading to a complete halt. This would have taken the law firm weeks or months to recover from. And if the hacker had chosen to delete all of the information they had access to (including backups), the firm may not have been able to ever recover. n
A law firm that SERO tested were using For more information please contact: external IT consultants to manage their IT Tel: 01489 559485 network infrastructure and services. The firm had placed their trust in the consultants, assuming that they were using the most secure practices to manage their IT SERO Security provide expert network. It wasn’t penetration testing services until the firm to help identify the weakest commissioned a areas of your cyber defences. Penetration Test that This enables your organisation they learned how to mitigate vulnerabilities vulnerable their and reduce the risk of being compromised during network and Cyber Attacks. information really was. > Identify vulnerabilities in
Would your Legal Practice be able to withstand a Cyber Attack?
your information systems
SERO were able to remotely breach their external network defences and gain administrator access to the whole private network and all information stored on it. If a hacker had gained this level of access they would have been able to cause enough damage to bring the
>
Secure your intellectual property and sensitive information
>
Protect your digital assets from hackers and cyber criminals
Speak to a specialist on 01489 559485 or email info@serosecurity.com www.serosecurity.com
Cyber Security
Cyber risks:
How safe is safe? Protecting confidential client information is an essential requirement of any law firm and it must ensure confidentiality to comply with SRA guidelines. So how do you best protect yours and your clients’ data? For most principals running small and high street law firms, common sense can go a long way to ensuring that your systems protect your information. But there are three major threats to data security.
Threat # 1: Benign Neglect The most common threat to data is the failure to regularly make checks that the data on the backup can be restored. Twenty years ago when computers were less reliable, the need to make backups was front of mind. However, when disaster strikes, the consequences are far more damaging.
Threat # 2: Your staff Some people who work in law firms are dishonest. The best thing you can do is ensure that your staff are properly trained. There is no point in giving a junior staff member, responsibility for making backups and then not providing training. You can’t prevent a staff member from carrying confidential information off the premises. How many times have you or one of your staff taken a physical file home to work on? This is incredibly common and also incredibly risky. Staff also do stupid things on work computers. Create a culture in which good computer behaviour is the standard. A lot of work is usually the best cure. Busy staff don’t have time to surf the net or download suspect programs.
Threat # 3: Do you use email? Many emails containing your client information have confidential documents attached. Very few law firms encrypt emails because recipients aren’t able to open the encrypted data. Sending an email to the wrong recipient might be the single biggest threat to data security, and yet it relies almost completely on common sense to prevent mishaps.
RICHARD HUGO-HAMMAN, CHIEF EXECUTIVE OFFICER AT LEAP LEGAL SOFTWARE, LOOKS AT SOME OF THE ISSUES INVOLVED, AND RECOMMENDS SOME SIMPLE STEPS OF HOW TO MINIMISE CYBER RISKS IN A LAW FIRM. Threat # 4: The bad guys out there! In reality, the information that a small firm has on its systems is unlikely to be of interest to hackers. There is however a risk, and it is particularly important for you from a compliance perspective because your income depends on your practice certificate. The SRA are justifiably concerned about all these threats.
Threat mitigation: a legal cloud software solution for small firms Some people are concerned about using cloud software but we have all done online (i.e. cloud) banking for years. Many of us post information on Facebook and LinkedIn. Cloud software. In reality we use it all the time, and the good news is that data stored in the cloud is far safer than almost every other common data storage mechanism. Here is a 5 point checklist for you to use when you consider making your data as safe as possible:
1 Location Many people like the idea of having a physical server in their office, or in the office of their IT provider. This seems safe but is risky. World leading cloud software products run on servers are located in secure data centres with the world’s best practice for access not only to the data, but to the facilities in which the servers are housed. This is where we keep data for our clients. It is secure and constantly backed up. With cloud software location risk is eliminated.
2 Communication between your workstation/devices and the Servers Make sure that your software supplier utilises Secure Socket Layer (SSL) and RSA data encryption ensuring all communication between workstation and server is encrypted and protected from interception. These technologies are also used by financial institutions to protect client data.
3 Data Security on the Servers The world’s best practice security controls include industrial strength Firewalls, Antivirus and Anti Malware detection, Security Patch Management, System Security Hardening, N+1 redundancy and a host of other acronyms that are difficult to understand and that you don’t need to worry about anymore. Make sure your technology provider is taking proper precautions. For example at LEAP our servers are hosted in Amazon Web Services data centres in Dublin. I would suggest that it is impossible for any small law firm to be able to afford similar levels of data security on their own.
4 Workstation Security A cloud application cannot protect your workstation and you should always ensure it is properly secured with the latest security updates from a reputable provider with anti-virus, malware detection and firewalls if necessary. Don’t open suspect attachments or download programs from untrustworthy sources. A good policy it not to allow personal use on work equipment.
5 Passwords You need a good password and you need to keep it secret. These are like security locks on a house; they keep 95% of potential intruders out. Don’t use: • 12345 • Password1 • Welcome • Your initials or date of birth • Your present or deceased pets’ names.
A final word on backups Make sure your technology system backs up your case management and accounting data. Implement smart, safe practice management software into your firm and your cyber risk is near to nothing. n www.leap.co.uk 08437130135
Surrey Lawyer 19
Cyber Security
Targeting Cyber Security A recent survey highlighted ‘Cyber Security’ as one of the greatest concerns of small and medium law firms within the UK. Legal technology today is a source of competitive advantage in many instances and, at the very least, a driver of efficiency and innovation. It is also often the mechanism by which many solicitors share information both between themselves and between themselves and their clients. Thus, it is fair to say that the majority of information within a modern solicitor’s firm is held in a digital form and is, therefore, a potentially lucrative target for digital criminals.
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any such criminals target smaller firms because they believe they will have less resources available to protect them but will still hold much extremely valuable data. In essence, there is a very real threat to small and medium sized law firms and the data they hold. The question being asked across the sector is what can be done to reduce this threat? To properly understand what can be done, it is first necessary to understand from where the threats emanate. Traditionally ‘Security’ was predicated on the notion of erecting an impenetrable exterior and only allowing known people through, an approach based on the assumption that threats were primarily external. In IT terms, this meant having a firewall to prevent unauthorised entry to the systems and protecting the systems with passwords. In a World where sharing information is second nature to increasing numbers of people, many otherwise diligent workers can create situations where the data held by a firm is placed into less than secure environments. Research indicates that the majority of security breaches emanate from within organisations rather than from external attacks and that many of these are inadvertent rather than malevolent. Many staff will access information from a variety of devices and a proportion of these staff will use the same passwords for their work accounts as they do for personal, less secure accounts. It is human nature to adopt repetitive simplicity when selecting passwords and it is this behaviour that creates the perfect opening for cyber criminals. The modus operandi for many cyber criminals today is the gathering and analysis of fragments of data which they can then use to launch very specific attacks. For example, many firms will use an employee’s e-Mail account as their primary identifier for systems. Establishing a valid eMail address is a relatively simple task and so the cyber criminal already has half the information needed to access a system. And the password? Some of the most common passwords in use are 123456, password, qwerty and letmein.
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Even where more complex passwords are used, users often make it relatively simple for cyber criminals to uncover this last line of defence by using the same password for multiple accounts both personal and work related and the personal ones are often much easier to breach. Staff may send work to personal accounts to enable them to work out of the office or carry data on portable devices which are easily lost. We have become careless in our use of technology and this carelessness is the source of much valuable information to cyber criminals. So is it all about the users? Absolutely not. There is still a requirement to invest in proper security systems and processes and to review where data is stored, how it is accessed and by whom. The cloud is often the source of much discomfort about security but is probably the one area where security is actually greater than more traditional IT solutions. The data is usually located in highly secure physical locations and the majority of cloud providers invest significant amounts of money in surrounding the data with both preventative and detection technology and have proven rapid responses to security incidents. Cyber criminals are less likely to waste time and effort attacking such environments when one known user account will provide them with direct, unhindered access. Simple steps such as using token based authentication in addition to passwords and
reiterating to users that data protection is as much their responsibility as that of the IT function can significantly reduce risk. Regular audits and ethical hacking attacks can also reduce risk. Security requires a multi-faceted approach and requires consistent awareness and adoption by all members of a firm. There also needs to be an acceptance that you will be compromised at some point and establishing an effective response and counter-measures plan is equally as important as seeking to prevent the breach. There is no panacea for cyber security. The threat landscape is constantly evolving and so establishing good security requires vigilance, constant education of the users, closing down the sources of information to potential hackers and frequent auditing and testing of the solutions that are in place. Above all it is a constant process not a one off activity. n Simon Ratcliffe Consultant Advanced Computer Software Group For more information please contact: 0844 815 5575
Cyber Security
Why Is ISO 27001 Certification Important For Law Firms? by Robert Rutherford, CEO of QuoStar Solutions
Data is one of the most valuable assets of any firm, especially sensitive data pertaining to clients. Yet many firms believe they are not a target for data theft or misuse, choosing to think that it is only a problem faced by large, global firms. This is simply not true - all firms hold sensitive data, relating to either individuals or companies, and this makes them a potential target for theft, fraud, misuse or abuse. Security breaches are typically carried out for profit now, and firms can find themselves the target of extortion or blackmail. As our reliance on IT systems and services increases, so does the potential for a security breach. However ISO 27001 doesn’t just protect against external IT threats like hackers, it focuses on identifying all possible risks and implementing controls to mitigate them. This can include everything from what to do if a user accidentally deletes important files, to data leak protection and physical security measures. It can also assist with risk management, regulatory compliance, governance and business continuity, ensuring key information is always secure and available. Service providers like legal firms have a duty, both to employees and clients, to make sure their business is completely secure, and ISO 27001 accreditation is something which can both safeguard against threats; known and unknown, old and new, and safeguard your firm’s reputation.
What is ISO 27001? Considering the growing prevalence of cyber-attacks on law firms, it can be surprising how few people have heard of ISO 27001 and understand what accreditation means for their organisation. ISO 27001 relates to information and cyber security, and offers a comprehensive set of controls based on best practice in information security. Overseen by the International Organisation for Standardisation (ISO) and the International Electrotechnical Commission (IEC), ISO 27001 is a third-party accreditation, independently verified by a set of standards for data security. It provides a specification for how an organisation should establish, operate and maintain an Information Security Management System (ISMS) - this is a framework of policies and procedures that includes all legal, physical and technical controls involved in an organisation’s information risk management process. ISO 27001 outlines a comprehensive set of security management protocols to be implemented across the firm including:
• Installing physical access controls around vulnerable appliances • Ongoing training in areas like proper usage of network resources for your team • Ensuring all key information resources are available in the case of IT downtime, e.g. business continuity planning • Limiting access and disclosure of sensitive information on a need-to-know basis • Origin or source integrity - ensuring you can verify any data received has come from the person identified as the sender
The Benefits For Your Legal Firm Although the ISO 27001 guidelines make no specific mention of law firms, that doesn’t mean the accreditation shouldn’t be adopted or that it has little benefit for your firm. In fact ISO 27001 is quickly becoming a standard for law firms and, in the absence of specific data security guidelines for the legal sector, it remains the best choice for safeguarding your most important information. As an internationally recognised standard, having this certification proves to your clients that your firm is serious about all aspects of IT and data security. Becoming certified not only means the personal information of your employees and stakeholders is protected, but it also instils a sense of confidence in your clients with regards to your safeguarding abilities. Reputation is everything in the legal sector. Data abuse or misuse is, at the very least, embarrassing for all involved, and at worst, highly damaging for your brand, with the potential to cause permanent loss of business. Having ISO 27001 accreditation greatly minimises and manages your risk exposure. With enhanced client satisfaction comes greater retention rates, and the competitive edge that accreditation gives you will help you to continue to attract new business in this turbulent legal market.
Becoming Accredited Established by the world’s top experts in the field of information security, obtaining ISO 27001 accreditation is an undertaking your firm is well worth committing to. It is suitable for firms of all size, from the largest, global-tier firm to smaller boutique or niche law firms. All organisations are judged on the same standards to ensure reliability and credibility for those claiming their client’s information is secure. If you decide to proceed, a top level policy should be created to establish which parts of the organisation will be covered by the ISMS, typically defining the areas, assets and technology to be included. Firms must go through a two stage audit process. Firstly a risk assessment of your current arrangements for information security and then, once you are a ready, a formal audit process. Following the auditor’s recommendations, your firm will be issued with a certification. Having achieved this obviously you’ll want to maintain your registration, so continue to review and improve your IT security processes, and your firm will have to undertake annual reviews. Obtaining ISO 27001 is quite an undertaking and requires a high level of commitment on a day-to-day basis, but the benefits it could bring to your law firm are vast and the initial time and commitment you invest will soon be repaid when you receive your accreditation. You may be rigorous in your IT security management, but it is only the independent audit that proves that the ISO standard has been embedded throughout your firm. n Email: robert.rutherford@quostar.com Web: www.quostar.com/legal
Surrey Lawyer 21
Conveyancing
SPEED UP HOUSE BUYING WITH THE PERSONAL TOUCH Moving house or business premises can be one of the more stressful processes in a person’s lifetime. One of the frustrations many consumers and businesses face when buying a house or commercial property is the length of time it takes to complete. Often, it’s search turnaround times during the conveyancing process that can be a challenge for solicitors and their clients. Not just in terms of the reality of the delay, but also how this can be perceived by customers. Today, clients expect property transactions to move quickly, but some local authorities can take longer to return searches due to resource issues and a backlog of work. That can create tension for all those involved in the buying and selling of homes and commercial buildings. There is, however, an option that can cut turnaround times while providing the same quality of search for residential and commercial searches. Personal Search Agency (PSA), a subsidiary of SearchFlow, offers an alternative to official searches that puts the entire process in the hands of a dedicated and experienced team. It’s a bespoke service that many buyers and sellers value highly. In areas where local authorities take three weeks or longer to provide conveyancing results, a personal search can reduce this waiting time by a whole week, on average. And across some locations, including London, SearchFlow figures show buyers could shave as much as two weeks off the property transaction process by instructing a personal search. Latest research from SearchFlow’s Conveyancer Sentiment Survey suggests that many feel the problem of delays could get worse. In total, 31% of conveyancers said that they felt changes to the Local Land Charge process could further extend turnaround times. Personal searches therefore promise a viable alternative that could ease the delays associated not just with present challenges, but future changes. “There are a number of factors that impact turnaround times for official searches at local authorities, including lack of resource, dealing with crises and changes in processes,” said SearchFlow’s Search
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Manager Ray Farrell. “Solicitors whose clients are looking for a faster transaction should consider recommending a personal search solution. “Our 22-strong, directly-employed personal search team at SearchFlow is extremely experienced and they have the most up-todate technology available to deliver fast results. They visit the relevant local authority for each and every search, rather than relying on past or banked data, and so are equally as reliable as official searches - if not better.” Delays in turnaround times for conveyancing searches impact solicitors as well as their clients. And with 44% of conveyancers expecting the market to improve by the end of 2015, Farrell says that now is the time for the industry to consolidate their operations and improve efficiency. “Efficiency drives profitability,” he said. “The faster solicitors are able to process clients, the more they’ll be able to take on and the more revenue they’ll make. Then there’s the service angle. By easing the conveyancing process for clients, solicitors will be offering better service.” PSA is staffed by a regional team of fieldbased professionals and an internal administration team. Covering every region of England and Wales, they work to secure appointments and visit local authority offices, doing all the legwork in person. More than 50,000 searches were undertaken by the team last year. But it’s not just speed that defines PSA searches. In-depth knowledge of the Local Land Charges Register, as well as the ability to drill into the detail of CON29
responses and to decipher and interpret their content means conveyancers can be sure of the accuracy of the work. When a solicitor instructs a personal search to be undertaken, they will have a single point of contact so that there is regular communication and updates throughout the process. For the solicitor’s client, the personal search option may also resonate in a positive way and assuage some of the negativity that can define the conveyancing process. Today, buyers increasingly seek the personal, bespoke touch whatever the goods or services being bought. So why not a personal search to help deliver a competitive advantage and show the industry is on the front foot? According to the Conveyancer Sentiment Survey nearly two thirds of conveyancers have seen the biggest volume of growth from direct business. And this statistic alone could help convince more of the benefits in promoting personal search to potential clients. All PSA searches are search code compliant and provide protection of £10 million in professional indemnity cover as standard. In addition the team goes beyond regulated searches, offering an ad hoc enquiry service for other aspects including highways and planning. Call 01732 523952 if you would like to speak to SearchFlow and PSA about the services they offer. n
Conveyancing
Baby boomer home 'hoarding' means average property changes hands every 23 years compared to eight in the 1980s - First-timers buying later also behind decrease in housing turnover, say lenders. - Rental properties stay in the hands of landlords longer. - Cash makes up a bigger proportion of money spent on house purchases than mortgages. Baby boomers ‘hoarding’ properties and firsttime buyers getting on the ladder later in life means homes in the UK change hands far less frequently than they did thirty years ago, a new report has found. An analysis of the housing market over the past three decades has revealed that on average buyers hold on to the same property for 23 years before selling it, almost three times longer than in the 1980s, when it changed hands every 8 years. The report argues that this is driven by a combination of factors, including the baby boomer ‘hoarding effect’, where middle-aged homeowners have a big slice of the housing stock and hold on to their properties rather than selling them. The Intermediary Mortgage Lenders Association suggests that the decrease in housing turnover in recent years is also down to housebuilding not keeping up with the shortage of homes and younger people continuing to rent and managing to buy their first house much later than they did in the past. Those rental properties stay in the hands on one landlord longer than had they been passed between owner-occupiers. Peter Williams, executive director for IMLA, warned such situation could make it even more difficult for first-time buyers to get on the ladder in the future, with mortgage lending continuing to be subdued compared to past standards despite continuing to increase. He said: ‘Quite simply, in the absence of a sustained rise in housebuilding and improved affordability and turnover, the fact that properties are coming onto the market less frequently severely limits the scope for wouldbe first time buyers to graduate to owning their own homes.' Williams also warned that the growing influence of cash and equity was ‘sowing the seeds of a permanent social divide’ but added that we may start to see affordability improving as the market stabilises and wages rise.
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IMLA's analysis suggests that cash made up a bigger proportion of money spent on house purchases than mortgages. It said that just £4.17 of every £10 spent on house purchases in 2014 was funded by mortgages while cash or equity made up £5.83. Mortgage lending to individuals has slowed down in the last year amid rising prices, which make properties less affordable, and following tighter restrictions since April’s implementation of the Mortgage Market Review. Williams added: 'The introduction of the MMR and first use of macro-prudential tools cannot be held entirely responsible for the slowdown over the last year, but we may be getting the first taste of how the new regulatory regime can engineer a more subdued market - even with the policy prop of ultra-low interest rates.' The average house price now stands at another record high of £192,970 - up another £788 over the past month alone, according to the latest figures from Halifax. Official data published yesterday showed borrowers' appetite for mortgages decreased significantly in the first quarter of the year, meaning lenders have seen demand fall more sharply than at any point since the financial crisis in 2008. The Bank's Credit Conditions survey showed a sharp fall in
demand for lending for house purchase. By a balance of -40.8 per cent, lenders said demand had fallen between January and March. It is the third three consecutive quarters of falling demand following readings of -46.1 per cent in the final quarter of 2014 and -27.4 per cent in the third quarter, the Bank of England said. n For more information please contact our office on 01276 451 203 or email us at threecounties@indexpi.co.uk
P. I. Insurance
Code of Conduct change affecting Solicitors’ PI 1 April 2015 - ARE YOU READY? The SRA has recently announced a change to the Code of Conduct that requires firms to assess and purchase an appropriate level of professional indemnity insurance. New Outcome 7.13 states ‘you assess and purchase the level of professional indemnity insurance cover that is appropriate for your current and past practice, taking into account potential levels of claim by your clients and others and any alternative arrangements you or your client may make.’ You must comply with this outcome by the earlier of: 1. The date on or after 1 April 2015 of the commencement, renewal, replacement or agreed extension of the policy period of any qualifying insurance; and 2. The start of the new indemnity period on 1 October 2015. As this is a required outcome, it follows that firms will have to be in a position to be able to provide evidence to the SRA that an appropriate assessment has taken place.
It is important to note there have been no changes to the minimum limits that a firm is required to purchase - £3 million for a Relevant Recognised Body and £2 million in all other cases. When considering how to comply with this new Outcome, Solicitors should remember that their professional indemnity policy is written on a claims made basis. This means that it is the policy in force at the time the claim is made or a circumstance is first notified, that will respond, not the policy in force at the time that the work was carried out. For this reason it is vital that when deciding on what level of indemnity is appropriate, that consideration is given to the type and value of historic and current work. Also when considering an appropriate indemnity limit, whilst the limit applies to any one claim and defence costs are paid in addition, it should be remembered that
the policy contains a ‘series clause’. The effect of this is to treat all claims arising from the same event (see the minimum terms for the full extent of this) as one claim. For example, if a standard contract is used for sales of multiple units in a property development an error in this standard document may result in multiple claims which may then be treated as a single claim for the purposes of the cover. Insurance brokers may well be reluctant to recommend a specific limit but should certainly be able to help with the thought process involved in assessing an appropriate limit. n Joel Harding is one of JLT Specialty's representatives for firms in London and throughout the South-East. If you'd like to talk through any concerns you have about this change contact Joel. joel_harding@jltgroup.com www.jltsolicitorspi.com
Renewal preparation Completing the proposal form for your Professional Indemnity renewal is a challenge that all solicitors tasked with the job, rarely look forward to. However, it is important to remember that this form is the information that your broker will use to “sell” your practice to underwriters. It is therefore essential to present your practice in the best possible light. It will be useful to consider what underwriters look for when examining a proposal form and highlight some of the key factors that affect the price of your insurance. The insurance market has been accused of lacking transparency in the past, yet underwriters have strict guidelines and rating formulas that generate a premium. Thus, a greater understanding of the methodology behind the underwriting process could help firms obtain more favourable terms. Although this should be obvious, a clear and wellpresented proposal form is crucial in offering a good first impression. Hand written forms are fine as long as they are neat. A form that has been rushed and poorly presented will not reflect well on the firm in general. As proposal forms become more readily available online, this issue is becoming less relevant. Consistency in a firm’s proposal form is also a key to having a positive impact on an underwriter -
information and particularly numbers, must add up. A frequent example of where a firm can let themselves down is in the conveyancing section. The fees declared here often do not match up with the percentages declared in the areas of practice section of the proposal form. The proposal form, by its nature is limited and cannot suit every type of law firm. Therefore, remember that in most cases there is a human at the other end who will read what you write. Do not be bound by the form’s limitations. Offer more about your firm, and write additional notes. For example, Insurers will be interested in how you supervise consultants or those working from home. They will want to know that you have sufficient and robust accounting procedures in place to ensure that no one individual could empty the client account; they will want to know about supervision and lines of accountability. The accuracy of your form is also important. For example, if 30% of your revenues come from commercial work, be sure to clarify whether this is commercial litigation or general commercial work. These two areas can command a very different rate in terms of pricing. Commercial litigation is deemed to pose less risk to insurers and therefore is charged at a lower premium. Firms should be aware of these mechanics and nuances in the underwriting process as this accuracy can result in better pricing. Insurers will also look at the work split of a firm and ensure there is logic behind it. Is the firm a high street practice with multi disciplines? Is it a specialist firm?
Underwriters do not like to see firms that dabble in an area of law or take on contracts that are considerable larger than those they are used to. It may be that there are rational explanations for a sudden change in the practice i.e. a new recruit with different expertise or a new client instruction. Whatever it is, ensure that it has an explanation that the insurer can rationalise and be comfortable with. This will benefit your firm. Finally, and most importantly, is your claims record. This is what all insurers are most interested in as it is a reflection on how you perform as a firm and the potential monetary exposure you offer to an underwriter. All your risk, business and financial management are reflected in this record - if your claims record is good, it is a fair assumption that you are a well-run business. A lot of this is common sense but it is worth pointing out as the cost of insurance remains significant. This year, tax work will be particular interest to insurers whether this is current or historic. Any mitigation schemes undertaken will require explanation. Insurers will also be looking closely at procedures and guidance available throughout a firm to combat the potential exposure from fraudsters and hackers seeking to access client/office accounts or personal data. n For more information, please contact Janine Parker, LawSelect at Paragon Insurance Brokers Limited 0207 280 8207
Surrey Lawyer 25
Probate
Investment Overseas and the Impact on Estates The complex world of asset repatriation by Louise Levene
Godfrey: “Prosperity is just around the corner.” Mike: “Yeah, it's been there a long time. I wish I knew which corner.” (Source: “My Man Godfrey” 1936 (Universal Pictures; Director: Gregory La Cava) This bit of bleak humour from the depression-era screwball comedy “My Man Godfrey” never seems to lose its relevance, as the global economy bounces from boom to bust, or navigates the fragile limbo in between.
Picture: “My Man Godfrey” 1936 ©Universal Pictures
Throughout the prosperous 1990s, British daytime television was peppered with programmes which painted a pleasing picture of investment opportunities in Spain and beyond for British householders with a pot of equity to spend.
Disposal of a property, even at a loss, might meet one such duty, but retaining the property, even if it costs money to do so, might arguably meet a different one. There might be reason to hope the value of the property will improve.
translations of English probate documents. When an intestate English estate includes immoveable property, there may be questions of forced heirship, where close family members must benefit from part of the estate.
You could have a retirement home or an investment, whatever you needed. Building companies in Spain responded to demand with a huge construction programme, some of which turned out to have been built almost literally on sand, with building firms granted unsustainable mortgages by banks on the rash promise of quick sales.
Even once the decision to sell the property, or transfer ownership to beneficiaries has been made, dealing with property in Spain can be slow and expensive. Spain’s laws are kinder to UK estates than others in Europe: Spain uses nationality to determine how an estate should be dealt with, but it will accept the renvoi from England & Wales.
Clients who bought retirement villas and flats on the Costa del Sol during that time might not have counted on a scenario in which they died, in the throes of a terrible recession. Spanish property prices have tumbled up to 40 percent since 2008.
The Spanish inheritance process needs to be followed, involving the services of a notary (‘notario’). Spanish notaries are responsible for the drawing up of deeds covering the administration of estates and the registration and disposal of property.
Since the financial crash of 2008, time has shown that there aren’t easy answers to that central dilemma of whether estate representatives should keep or sell Spanish property. Any sale within the last seven years might have been through necessity alone, but continuing uncertainty and year-on-year declines in Spanish property values since that time also made it difficult to wait, with confidence, in the hoped-for improvement in the market.
For lower-priced property in particular, this can leave the estate with a dilemma. Sell the Spanish property as quickly as possible, at a loss, or hold out in the hopes of a recovery at the mercy of European market forces, while the fabric of the property deteriorated every year?
They don’t all communicate equally effectively, and some struggle to interpret the English & Welsh concepts of domicile and Executors (although the recent EU Succession Regulation 'Brussels IV' has been designed to smooth the way for estates after August 2015). Spanish NIE (fiscal identification) numbers have to be obtained for the beneficiaries something that is not made easy for UK residents to obtain - and tax clearance paperwork submitted.
Investors know, or are expected to have some idea about, the risks they are taking. But it is the executors that have to juggle those risks against their occasionally conflicting duties as estate representatives when the investors die. Personal representatives must gather in estate assets, and act promptly in administering and preserving the estate.
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Registration of title to the property must be transferred out of the deceased’s name before it can be sold. It can be difficult to get Spanish bank accounts closed. The Spanish authorities need official, legalised
For now, there are signs that the drop in values may have bottomed out, but UK property owners in Spain might still be glancing warily at Europe’s tribulations, and wondering which corner that much-needed prosperity will turn out to be ‘just around’. n Louise Levene is asset services manager at Finders International. For an initial, informal discussion about valuing or disposing of Spanish property, obtaining NIE numbers or closing bank accounts in Spain, or to discuss any estate matters with an overseas asset element, contact Louise on 020 7490 4935 or, in the UK, 0800 085 8796, or by email louise.levene@findersinternational.co.uk
Probate
Dealing with a “digital legacy” WITH THE HUGE RISE IN THE STORING OF PERSONAL EFFECTS SUCH AS PHOTOGRAPHS, MUSIC, BLOGS AND SOCIAL MEDIA DIGITALLY, IT IS IMPORTANT TO CONSIDER HOW TO HANDLE THIS INFORMATION WHEN PLANNING A WILL. Many people upload information, such as photographs and videos, to social media sites like Facebook and YouTube. However, depending on the terms of use set by the relevant provider, these accounts can come to an end on death. Therefore, the information may be lost or, in any event, it is unlikely that any family member would be able to access the information without the user name and password of the deceased person. The same would be true of any email accounts, where again useful information may be held that the executors and family of the deceased cannot access without the required passwords. Internet companies have to tread a difficult path when deciding how to deal with the accounts and data of their users that have died. Facebook though have recently announced that it will let its users decide what to do with its account when they die, possibly in response to pressure from families. The new feature will allow users to
appoint a “Facebook heir” who will look after the account and will be allowed to make certain changes. They will also be able to choose to have their account deleted entirely. If users don’t choose a Facebook heir but name a digital heir in a normal will, Facebook will honour that choice. “This is a welcome move to allow the appointment of a Facebook heir which could be of comfort, particularly, for families who lose a loved one in tragic circumstances,” commented Sue MacLeod from law firm Hart Brown. “It will allow the heir to access photos which may only be stored via Facebook. However I wonder how many people will actually appoint a Facebook heir and will that person have the time to keep the memories alive through the Facebook page? I think that privacy may be more important to Facebook users, and I think users will have to think carefully who they
appoint as their Facebook heir.” Naming digital heirs in a Will, along with passwords and other personal information, poses its own problem though. A Will becomes a public document, once it has been sent to the Probate Registry to obtain a grant of probate, which may be required to deal with their property and other assets. Therefore, any confidential information in the Will can be obtained simply by applying to the Probate Registry for a copy of the will at the cost of £6. It is therefore essential to ensure that any user names and passwords are stored in a very safe and secure place. One option is to keep a list of details with the original Will, with a solicitor. Having taken these steps, it is also extremely important that the information is updated, as old information can be as useless as no information at all. For more information please visit www.hartbrown.co.uk
Surrey Lawyer 27
Probate
HEIR HUNTERS SHED LIGHT ON LONG LOST BROTHER WHO SPENT LAST 25 YEARS IN MAKESHIFT HOME A CHESHIRE WOMAN HAS DISCOVERED HER LONG LOST BROTHER’S UNIQUE PAST THANKS TO TV HEIR HUNTERS’ SEARCH. Mr Millen died without leaving a Will, giving no indication of who he wanted to inherit his valuable estate.
As an ex-meteorologist who spent many years at the Met Office and learnt his craft in the military, Mr Millen enjoyed the outdoors.
team of leading genealogists and international probate researchers, dedicated to tracing missing beneficiaries to unclaimed estates.
It was only when probate research firm Fraser and Fraser, who star on BBC One’s daytime show Heir Hunters, tracked down his sister, that the family discovered his unusual way of life.
Neil Fraser, Partner at Fraser and Fraser said: “We sometimes get unusual cases such as Mr Millen’s which can make it harder to track. Once we located his birth certificate, however, the family tree started to unravel.
Offering their skills to solicitors, finance professionals, large corporations and local authorities, their services, including International Bankruptcy Searches, Missing Beneficiaries Insurance and Probate Property Services are tailored to each individual’s needs, and are there to offer support to the legal profession with every step of estate administration.
Anne King had not seen her brother for over 25 years after he chose to tie off all forms of contact. When the London based firm contacted Mrs King, she said she felt a “feeling of relief that at last I would know what had happened to him”. Mrs King last saw her brother at their mother’s 80th birthday over a quarter of a century ago. Although her other brother, Boyd, had tried to find him, no one managed to get back in touch. Mr Millen used to live in a house boat along the canal, but when the council deemed it unfit for habitation, he chose to build his own home.
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“Mr Millen actually have £10,000 worth of premium bonds with the rest sitting in a bank account - something which the four heirs, including his sister, can now enjoy. “In cases where the deceased is elderly, we often find the beneficiaries are further down the tree, but here we managed to find near kin, as well as Mr Millen’s nieces.” Fraser and Fraser located four heirs on this case, the majority in the Cheshire and Liverpool area. With over 90 years of experience, the firm are a
If you are searching for next-of-kin in order to distribute an estate to the rightful heirs, get in touch today. We understand that each case is unique and so offer our quote on a case-by-case basis. Once Fraser and Fraser begin to work a case, a full report will be provided, showing how the estate will be distributed at maximum value and as efficiently as possible.
Probate
The SRA’s new approach to CPD How Title Research can help LAST YEAR, THE SRA ANNOUNCED SIGNIFICANT CHANGES TO THE WAY IN WHICH SOLICITORS AND LEGAL PROFESSIONALS NEED TO DEMONSTRATE THEIR CONTINUING COMPETENCE. The move away from a rigid continuing professional development (CPD) structure was intended to refocus the profession’s attitude to training and development, bringing an end to the ‘tick box’ attitude which many saw as limiting the effectiveness of CPD for the majority of legal professionals. Instead, the new approach aims to enable solicitors to tailor their CPD activity in order to reflect the legal areas in which they operate more accurately. This will also ensure that more emphasis is placed on the outcome of the activity and the value that this offers the individual, rather than the process by which it has been achieved. The new approach will become compulsory for all legal professionals from
November 2016. However, you can already opt in to the revised scheme and many are choosing to do so given the increased flexibility that it offers.
wide range of subjects impacting on trust and estate planning professionals, including risk management and compliance issues.
So what do the new regulations mean in practice? One of the most significant changes is that the CPD activity that you undertake no longer needs to be accredited. Adoption of the new standards means that you can now identify a wider range of training opportunities that can count towards your CPD activity.
We can deliver this service to you in the comfort of your own office at a convenient time for you and your colleagues, free of charge. If you would like to find out more about how you could benefit from a free CPD presentation, please contact Nicholas Beetham, Senior Relationship Manager at Title Research, on 07714 853651 or Nicholas.beetham@titleresearch.com
Title Research has provided free training and support to the legal profession for many years, drawing on our 50 years’ of experience as specialists in the estate administration market. Our team of experts regularly speak at industry events on a
Alternatively visit www.titleresearch.com for information on how we can support you and your clients with any asset repatriation or people tracing services.
Surrey Lawyer 29
Legal News
YOUR LEGAL FRIEND announces appointment of leading Counsel for Quindell PLC group action YOUR LEGAL FRIEND (“YLF”), THE LEADING LITIGATION FIRM, TODAY ANNOUNCES THE APPOINTMENT OF PHILIP MARSHALL QC AS LEAD COUNSEL FOR THE POTENTIAL GROUP ACTION ON BEHALF OF QUINDELL SHAREHOLDERS. Mr Marshall QC has a stellar reputation and track record in the area of financial and investor litigation and already has a similar lead role in relation to significant investor actions against Tesco PLC and RBS Group PLC being conducted by other respected legal firm. This appointment coincides with the Financial Conduct Authority’s announcement that it has commenced an investigation under the Financial Services and Markets Act 2000 in relation to public statements made in respect of the financial accounts of the Company during 2013 and 2014. YLF welcomes the FCA’s decision to investigate the published statements of the Company during 2013 and 2014. The firm considers this to be a significant endorsement of its view that Quindell must now address a number of pressing questions regarding the financial information contained and reported in its public statements. As previously reported by YLF, Quindell announcements made to the AIM market in 2013 and 2014 suggest that, at the very least, significant mistakes were made in its published statements for that period. YLF’s
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investigations to date have indicated that these include: • Published results and forecast statements which the new Board of Quindell themselves have now indicated (following an independent review by PwC) were not produced on the basis of accounting policies that were “acceptable” in all respects and will therefore require to be materially restated. • Published statements, valuations and forecasts related to acquired businesses which we expect the YE 2014 results will now show require substantial corrections and write-offs. • The announcement of significant share purchases by directors on 5 November 2014 followed by a correcting announcement 5 days later which indicated that the substance of these transactions was in fact largely concerned with net director share sales. • These share sales were made in a period after one of the company’s joint brokers and financial advisors had submitted notice of its resignation but before that
material fact had been announced to the market • Confirmation in June 2014 of progress towards a main market listing followed 2 days later by an announcement that this had been rejected YLF has already been contacted to date by well over 500 Quindell investors who feel that they have been misled by the Company’s public statements and have expressed interest in pursuing a claim for compensation. This number continues to grow. Colin Gibson, Chief Operating Officer, Your Legal Friend commented: “For the past six months, we have been investigating the circumstances of the potential claimants and the available public information. The latter has however been hampered by the significant delay in Quindell’s publication of its 2014 Annual Results. Following the expected announcement of these results over the coming weeks, we would expect to progress the investor action to the next stage.” n Affected Quindell investors can contact the Your Legal Friend team on 0808 273 6855.
Legal News
Leaving their beloved four-legged friend without an owner Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved four-legged friend without an owner. Thankfully, Dogs Trust, the UK’s largest dog welfare charity, offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, it also helps to ease the minds of friends and family during what is already a distressing time. Over the past 12 months, Dogs Trust has taken in a whole host of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes. One of these dogs was Suzy who arrived at Dogs Trust Loughborough aged six-years-old when their owner sadly passed away. Scottish Terrier Suzy had spent most of her life with her previous owner so she was used to her home comforts. Dogs Trust Loughborough was able provide Suzy with a home away from home while she awaited her furrytale ending. Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving home. After being cared for by Dogs Trust Loughborough, Suzy was soon rehomed and began settling in with her new family.
Adrian Burder, Dogs Trust CEO says, “Thanks to Dogs Trust’s Canine Card Card scheme, dogs in need of a new home are given a lifeline meaning that Suzy and many dogs like her are able to get a second chance at happiness and bring joy to a new family. If you decide to become a Canine Care Card holder, we will issue you with a wallet-sized card. It acts in a similar way to an organ donor card and notifies people of your wishes for your dogs, should anything happen to you. Dogs Trust also strongly recommends that you mention the care of your dog in your Will. That way, there can be no confusion about your wishes.”
Surrey Lawyer 31
Legal News
Surge in ‘DIY’ justice sparks guidelines for lawyers A surge in the number of people representing themselves in court has prompted legal organisations to draft guidelines for lawyers who come up against people who find themselves in court without legal representation.
T
he guidelines have been developed by the Bar Council, Chartered Institute of Legal Executives and the Law Society in response to the rising numbers of people representing themselves in court without a lawyer as a result of cuts to legal aid, the increase in the small-claims limit and the introduction of employment tribunal fees. The practical guidelines are relevant to the civil and family courts and tribunals where there has been an influx of people who cannot afford to instruct a lawyer, have not been able to obtain free legal advice and often have no alternative other than to embark on 'do it yourself' justice. The guidelines discuss how far lawyers can help unrepresented people without this conflicting with their duties to their own clients. Lawyers are advised to communicate clearly and avoid technical language or legal jargon, or to explain jargon to the unrepresented party where it cannot be avoided. Law Society President Andrew Caplen said: "Cuts to legal aid and increases in court fees have forced more and more people into 'do it yourself' justice, where they find themselves dealing with unfamiliar procedures in busy courtrooms whilst trying to resolve often life-changing issues regarding their families, their homes and their futures. We recognise the difficulties that people face in these circumstances and the consequent challenges created for lawyers acting for represented parties. We hope that these guidelines will help everyone concerned with cases involving self-represented litigants, but would again emphasise that the cuts to legal aid need to be urgently reviewed by the incoming Parliament." Chairman of the Bar, Alistair MacDonald QC, said: “The people who lose out most from the rising tide of litigants in person are the litigants themselves. It is one of the worst outcomes of the legal aid cuts that people facing major life events such as a family break up, have little choice but to put their case alone and without legal support or representation. It would have been easy for the legal profession to sit back and let the chaos
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play out in order to highlight the full impact of the cuts. However, we believe access to justice is a fundamental part of the rule of law and are doing all we can to help limit the impact upon those who find themselves in this dire situation. As well as supporting this initiative, in 2013 the Bar Council produced A Guide to Representing Yourself in Court, with the specific aim of giving litigants in person a better understanding of how to represent themselves in court. However, there is only so far the legal sector can go in tackling this problem. It won’t go away unless the cuts to civil legal aid are restored so that those of limited means can, again, have proper access to justice." CILEx President Frances Edwards commented: “In drafting these guidelines we have sought to give useful information so lawyers can best support those without legal representation. The ability of any litigant to have access to justice should be the key outcome of our legal system yet, at present, traversing the justice system in the best of circumstances is a challenge, and we expect to see litigants in person in substantial numbers for many years to come. Therefore, whilst we hope these guidelines will help, it does not alter the need to ensure litigants are placed at the heart of the justice system. Meanwhile, we will continue to press for the cuts to legal aid to be reviewed so that legal help is available to those who need it, and maintain our campaign for better access to justice and legal assistance for all.”
Lord Dyson, Master of the Rolls, commented: "I warmly welcome the publication of these joint professional guidelines, and the collaboration of the three leading professional bodies in producing a valuable and timely reference for lawyers. “An increasing number of litigants in person are coming before courts and tribunals in all jurisdictions, and the challenge for all of us in the justice system is to make sure that everyone is treated equally, fairly and impartially and according to the law. This presents particular challenges for practitioners, with the interests of the client and the duty to the court seemingly coming into conflict. However, ultimately, a client is best served by a fair and transparent system.” n
The guidelines are available on each organisation's website: The Law Society: http://www.lawsociety.org.uk/News/Pres s-releases/Surge-in-DIY-justice-sparksguidelines-for-lawyers-May-2015 The Bar Council: http://www.barcouncil.org.uk/for-thebar/professional-practice-andethics/litigants-in-person/ CILEx: http://www.cilex.org.uk/membership/lip _guidelines.aspx
Legal News
'Rich Kids of Instagram' Following the popularity of the 'Rich Kids of Instagram', Amelia RenkertThomas, a family wealth management consultant at Withers Consulting Group in New York, has sent us this article discussing inheritance within a wealthy family. Is the UK set to follow the US in yet another social media debacle? Inheritance: A blessing or a curse? Are ‘trust fund babies’ destined to become idle and demotivated, or just as successful as their grantors? Amelia Renkert-Thomas from family business specialist, Withers Consulting Group, explores the potential outcomes and how families can help beneficiaries to take the right path. The affairs of wealthy individuals are often the topic of news stories and speculation. Their business choices, like Warren Buffett’s decision to transfer most of his wealth to charities rather than his children and grandchildren, are similarly open to discussion. There will always be a certain level of intrigue around the lives of the wealthy, and this is no doubt fuelled by the growth of social media in recent years. #RichKidsofInstagram is one such example of young, wealthy lives being shared with more than 112,000 fascinated onlookers, plus a concentrated media following who are keen to expose the ‘crass’ attitude of some of the world’s wealthiest kids. To their peers, the extravagant parties and gold sports cars paint an idyllic picture, but others have suggested that inheriting wealth might be a curse rather than a blessing for the young. It has been claimed that the inheritance of wealth can cripple motivation, sap the will to work and lead inheritors to a life of unhappy indolence. Rather than becoming independent contributors, these young inheritors regress until they become completely dependent on the lump sum they will eventually receive. But is this true? Clearly not. Just as there are wealthy inheritors who have lost their way, there are inheritors around the globe for whom wealth has merely helped them to build a rewarding life and create value for themselves and others. So, what can families do to reduce the risk of their children and grandchildren becoming ‘trust fund babies’?
Set a good example If parents do meaningful work and manage money wisely, if the family expectation is that all children will study hard, obtain the best possible education, get good jobs and live well within their means, then kids are more likely to gain confidence and a sense of self-worth from work - rather than spending.
Understand the denominator problem Children need to understand and more importantly, appreciate, that unless they commit to sustaining and building the family’s wealth, the inexorable increase in beneficiaries at each generation will quickly dissipate even the biggest fortune.
Understand the value of philanthropy Buffett’s charitable transfers illustrate another important and growing trend in family wealth transfer - the value of philanthropy. Buffett funded substantial gifts to foundations run by each of the children, thereby giving them a degree of power, independence and responsibility. In doing so, he gave a lasting confirmation of his respect for them, their charitable goals and their decision-making ability. Buffett and his first wife undertook major philanthropic efforts individually, jointly, and in partnership with others (including the Gates Foundation) thereby setting a precedent and providing an important education for his children. n by Amelia Renkert-Thomas
Transfer wealth in the right way Trying to protect wealth at all costs, whether by keeping the next generation in the dark about family wealth or creating trusts with elaborate control provisions, generally backfires. Beneficiaries who sense that they aren’t trusted are much more likely to display the very behaviour the grantor fears most. Beneficiaries who understand the uses and purposes of family wealth, who see themselves as responsible stewards with an important role to play in preserving and growing wealth, are more likely to carry on the family’s legacy.
Surrey Lawyer 33
Management
Important Costs Case Law Updates Bircher Jennings 1.
Application to increase costs budget at trial refused - Jonathan Parish & Brian Ogden v The Danwood Group Limited [2015] EWHC 940 (QB)
2. 3.
Senior Costs Judge Wrong not to award receiving party 10% of assessed bill for beating his own Part 36 offer on Costs - Michael Richard Ashman v Mid Essex Hospital Services NHS Trust [2015] EWHC 1312 (QB) No stay of summary assessment when indication of appeal given, costs not disproportionate - Axton v GE Money Mortgages Limited(1) & The Money Group (Cornwall) Limited (2) [2015] EWHC 1343 (QB)
1. The developing case law in respect of Costs Budgets has already established that parties should apply to amend to their costs budgets as soon as they know that they will be exceeded and that applications to amend after a case has concluded are not permissible, so what about an application to amend a costs budget at the final Trial of a claim? In the case of Jonathan Parish & Brian Ogden v The Danwood Group Limited [2015] EWHC 940 (QB) the Defendant successfully resisted a claim for deceit and/or misrepresentation arising from the sale of shares. Costs were awarded to the Defendant, who made an application to increase three phases of its last approved costs budget. The trial Judge, HHJ Behrens, dealt with the application and made the following decisions:Disclosure - The Defendant sought an increase of £8,938.00 said to have arisen due to the volume of the Claimant’s disclosure and the Claimant’s application for additional disclosure. In respect of the application for additional disclosure, the costs had been reserved to trial following refusal of the application and so the Judge now awarded those costs to the Defendant and they would be assessed separately to the main costs and did not require an increase in the costs budget. 2. Witness Statements - The Defendant’s approved budget was £47,071.00 based on an assumption of four witness statements. In the event, five Witness Statements were exchanged and the Defendant sought an increase of £10,000.00. The Judge agreed with the Claimant’s submission that the Witness Statements were not long and that there had been no significant developments in the litigation compared to the position as it existed in June 2014 (presumably when the budgets had been approved). Accordingly, the Judge saw no reason to increase the budget in relation to Witness Statements. 3. Experts - The Defendant’s approved budget for Expert evidence was £20,000.00, which was set before the expert had been identified. However, the expert’s fees now came to £69,864.00 so an increase of £49,864.00 was sought. The Judge considered that the increased fees had arisen as a result of the instructions to the expert going beyond what had been permitted by the specific order allowing the instruction of that expert so this increase was also refused. 1
Interestingly, the Judge did not make any mention of the fact that the Defendant had obviously exceeded his last approved budget by some margin but had not sought to amend the same by agreement or application before the Trial.
2. Since April 2013, the rules in relation to Part 36 offers (with some modifications) have applied to Detailed Assessment proceedings, including the provision for a receiving party to be awarded an additional 10% of his assessed bill if he equals or betters any Part 36 offer he made. The High Court has recently considered the issue of whether it would be unjust to make such an additional award when overturning a decision of the Senior Costs Judge. In the case of Michael Richard Ashman v Mid Essex Hospital Services NHS Trust [2015] EWHC 1312 (QB) the Claimant had served a bill of about £262,000.00 and later made a Part 36 offer to accept the sum of £152,500.00. The Bill was later assessed by Senior Costs Judge Gordon-Saker in the sum of £176,693.78 and he then considered whether to make awards under CPR 36.14(3). Whilst he felt it would not be unjust to require the Defendant to pay enhanced interest on the bill, costs of the assessment proceedings on an indemnity basis and enhanced interest on the costs of detailed assessment, he felt that it would be unjust to award the Claimant 10% of the assessed bill, being approximately £17,000.00. Giving his reasons for this decision, he said:-
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"6. I think costs have to be treated slightly differently to judgments. Generally, the only issue on detailed assessment is how much. Had the rule permitted me to allow a figure fixed by applying the prescribed percentage to the difference between the sum which the claimant offered to accept and the sum which was allowed, then I think that may have been a just result, but that is not what the rule anticipates. In circumstances where there has been a significant reduction in the claimant's bill, it seems to me that it would be unjust to reward the claimant with an additional amount prescribed by 36.14(3)(d)." Sitting with Costs Master Campbell as an assessor, Slade J considered that the Senior Costs Judge had fallen into error in regarding the reduction in the bill total alone as sufficient reason to make the 10% award unjust and also for making an exception not because he felt that the award of an additional amount itself was unjust but because the amount prescribed by the rules was too much. Giving her Judgement, Slade J said:“24. The reason given by the Master for holding that it would be unjust to 'reward' the Claimant with the additional amount prescribed by CPR 36.14(3)(d) was the size of the additional award. The Master considered that had the rule permitted him to award a figure fixed by applying the prescribed percentage to the difference between the sum which the Claimant offered to accept and the sum which was allowed on assessment, that may have been a just result. The reason the Master held it to be unjust to make the additional award was because there was a significant reduction to the Claimant's bill of costs. The approach adopted by the Master penalises the Claimant for making what turned out to be a reasonable Part 36 offer. It is the terms of the Part 36 offer not the level of the sums claimed in the bill of costs which are to be considered under CPR 36.14(4). Whilst all the relevant circumstances are to be considered in deciding whether it would be unjust to make an award under any of the paragraphs of CPR 36.14(3), it was not suggested that there was any particular feature or consequence of the bill of costs other than its size which would render the making of an order under CPR 36.14(3)(d) unjust. 25.The making of an order of the level required by CPR 36.14(3)(d) was decided as a matter of policy as explained in the Jackson Report. Under the previous regime it was considered that a claimant was insufficiently rewarded and the defendant insufficiently penalised when the claimant has made an adequate part 36 offer. In my judgment the Master fell into the temptation referred to by Sir David Eady in paragraph 61 of Downing of making an exception by not making an award under CPR 36.14(3)(d) not because he considered the making of such an award unjust but because he thought it unjust to make an award of the required amount, 10% of the assessed costs. The Master considered it would not have been unjust to award an additional amount based on the difference between the Part 36 offer and the sum of costs allowed on assessment. However this is not the regime specified in CPR 36.14(3)(d). In this case it is the Claimant who has been penalised for making a reasonable Part 36 offer rather than the Defendant for not accepting it. In my judgment that approach is contrary to the intent and effect of CPR 36.14(3)(d). 26.As he stated, Master Gordon-Saker was dealing with fairly new provisions in CPR 36. His judgment was given extempore. However, whilst recognising his expertise in matters of costs I have concluded that he erred and the appeal is allowed.”
3. Is an Appellant’s intention to seek permission from a higher Court to pursue a second appeal a “good reason” not to summarily assess costs at the conclusion of an appeal hearing that has lasted not more than one day and are costs of around £10,000.00 disproportionate in a claim that was issued for a sum less than £15,000.00?
In the case of Axton v GE Money Mortgages Limited(1) & The Money Group (Cornwall) Limited (2) [2015] EWHC 1343 (QB) the Claimants were pursuing a claim relating to the alleged mis-selling of PPI against two Defendants but the First Defendant obtained an order for summary judgment dismissing all of the claims against it. The Claimants appealed against that summary judgment but the appeal was dismissed by Swift J. The First Defendant was awarded its costs and as the hearing of the Appeal had lasted no more than one day those costs were due to be summarily assessed. However, the Claimants indicated that they intended to seek permission from the Court of Appeal for a second appeal and would also seek an order for a stay or any costs order against them pending determination of the second appeal. In the circumstances, the Claimant’s submitted that rather than carry out a summary assessment that “might ultimately be futile” it would be more efficient and proportionate to adjourn the assessment until the result of the appeal had been determined. They also suggested that adjourning the summary assessment would allow the parties to see if they could agree the sum for costs which would then avoid the need for a summary assessment if the appeal failed. The First Defendant contended that the costs should be summarily assessed in the usual way. In her judgement, Swift J did not consider that an intention to pursue an appeal and apply for a stay was a good reason not to carry out a summary assessment in accordance with the rules. If it were, every losing party wishing to avoid a summary assessment and delay payment of costs could indicate that they intended to appeal. Also, a summary assessment is best carried out immediately whilst the circumstances are fresh in the mind of the Judge who has heard the case whereas an adjournment could lead to the assessment taking place long after the event and possibly by a different Judge if the appeal failed. Further reasons given for not adjourning the assessment were that such an adjournment would effectively act as a stay of the assessment when the rules state that an appeal will not act as a stay of the judgment of the lower court without further order and there was no application before the court accompanied by reasons for such a stay. In addition, the Judge felt that any decision with regard to a stay in this case would be better left to the Court of Appeal who could consider any application and grounds and balance any prejudice to the parties. Finally, the Judge considered that a summary assessment was a straightforward exercise that would not result in any significant waste of Court resources in the event that it did prove to be “futile” so she would proceed with the summary assessment forthwith. In the course of the summary assessment, the Claimants raised a number of specific objections to items in the First Defendant’s statement of costs and some minor reductions were made that reduced the claimed costs to £10,395.60. The Claimant’s submitted that this figure was not proportionate to the value of the claim, which had been stated on the claim form to be less than £15,000.00, and therefore the Judge should reduce the total amount of the costs further. The Judge dismissed this point as being without any merit. n Copyright © 2015 Burcher Jennings, All rights reserved. Lisa Hazell, Head of Client Services at Burcher Jennings 25 Southampton Buildings London, WC2A 1AL Tel: 07739 632787