Surrey Lawyer Spring 2016 by Benham Publishing Limited

Spring Issue 2016

SurreyLawyer THE VOICE OF SURREY SOLICITORS Inside this issue: ~ Local News ~ Probate ~ Management Matters

The Supreme Court on Break Clauses and Implied Terms... (cover story)

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

List of Officers

President’s Jottings

CEO Report Local Issues

8 -13

Local News

ADVERTISING AND FEATURES EDITOR Anna Woodhams

Probate

STUDIO MANAGER Neil Lloyd

Probate Software: Training, Leadership and Support

ACCOUNTS

Protecting Property

Joanne Casey

Heir locators’ fees - Who should pay?

MEDIA No.

Probate: how it works

1466

PUBLISHED

Conveyancing Focus

March 2016 © The Surrey Law Society - Benham Publishing

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.

Changing behaviour in the information age

Thames Water Property Searches

‘Philosophy of Change.... According to Yoda!’ News

Public Law Cases with an International Element

Organise Your Firm to Grow Your Profits

Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

Employment

DISCLAIMER The Surrey Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation. 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. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice. COVER INFORMATION The cover image: © UK Supreme Court

5th June 21st August 12th December 27th February

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:

Surrey Law Society’s 2016 Conference Season starts this September Interview

So what is the job of Attorney General like today? Finance The Supreme Court on Break Clauses and Implied Terms Legacies

Canine Care Card

Planning for the future can help make a real difference

SBA The Solicitors’ Charity

Anyone wishing to advertise in Surrey Lawyer please contact Anna Woodhams before copy deadline. Email: Tel:

Two modern dilemmas in the legal profession Education

Copy Deadlines Summer 2016 Issue Autumn 2016 Issue Winter 2016 Issue Spring 2017 Issue

Management Matters 30

Is Buy to Let still as attractive?

Solicitor and client costs disputes the journey

Test your need to grow and merge

sueseakens@surreylawsociety.org.uk 01344 860830

Surrey Lawyer 3

Officers PRESIDENT

COMMITTEE MEMBERS

LAW SOCIETY COUNCIL MEMBERS

DANIEL CHURCH

MAREK BEDNARCZYK

SUSHILA ABRAHAM S Abraham Solicitors 290A Ewell Road, Surbiton KT6 7AQ Tel: 020 8390 0044 Email: office@sabrahamsolicitors.co.uk

Hart Brown

TWM Solicitors LLP. 65 Woodbridge Road, Guildford GU1 4RD

Resolution House, Riverview, Walnut Tree Close, Guildford, GU1 4UX

DX 2408 Guildford 1

DX 2403 Guildford 1 Tel: 01483 752700

JOHN PERRY

Tel: 01483 887704

Fax: 01483 752899

Palmers Solicitors 89-91 Clarence Street

Fax: 01483 887758

Email: daniel.church@twmsolicitors.com

Email: msb@hartbrown.co.uk

Kingston upon Thames, KT1 1QY DX 31524 Kingston upon Thames Tel: 020 8549 7444 Fax: 020 8547 2117

WIN CUMMINS

VICE PRESIDENT

18 Station Approach, Virginia Water GU25 4DW

MARK GOUGH

Email: john.perry@palmerssolicitors.co.uk CHIEF EXECUTIVE

DX 94652 Virginia Water Solicitor

& MAGAZINE EDITOR

22 Woodlands Road, Little Bookham,

Sue Seakens GLORIA MCDERMOTT

Surrey Law Society

Surrey KT23 4HF

18 Station Approach, Virginia Water GU25 4DW

Tel: 01372 230786

DX 94652 Virginia Water

Email: mark@markgoughlaw.com

Email: gloria.mcdermott@virginmedia.com

Web: www.surreylawsociety.org.uk DX 94652 Virginia Water Tel: 01344 860830 Fax: 01344 428511 Email: sueseakens@surreylawsociety.org.uk

JULIE ROWE HON SECRETARY

Russell-Cooke Solicitors

KIERAN BOWE

Bishops Palace House, Kingston Bridge,

Russell-Cooke Solicitors

Kingston upon Thames, Surrey, KT1 1QN

Bishops Palace House, Kingston Bridge,

DX 31546 Kingston upon Thames

Kingston upon Thames, Surrey, KT1 1QN

Tel: 020 8541 2023

Daniel Church Nick Ball Marek Bednarczyk

Email: Julie.Rowe@russell-cooke.co.uk

DX 31546 Kingston upon Thames

SUB COMMITTEES QUO VADIS (Strategic Planning)

Mark Gough (Chair) CONVEYANCING & LAND LAW

Tel: 020 8541 2041

Win Cummins (Chair)

JAMES SCOZZI Fax: 020 8541 2009

Gary Score*

1 Fetter Lane

Email: kieran.bowe@russell-cooke.co.uk

Maralyn Hutchinson*

London EC4A 1BR

Matthew Truelove*

DX: 14 London Chancery Lane

Ken Seakens*

HON TREASURER

Tel: 020 3440 5506

NICK BALL

Fax: 01923 219416

Howell Jones Solicitors

Email: jscozzi@elitelawsolicitors.co.uk

FINANCIAL Nick Ball (Chair) Kieran Bowe Mark Gough Ken Seakens*

75 Surbiton Road, Kingston upon Thames, IAN WILKINSON

Surrey, KT1 2AF

SOCIAL

The Castle Partnership DX: 57715 Surbiton Tel (Office): 020 8549 5186

Mark Gough (Chair)

2 Wey Court, Mary Road, Guildford,

Daniel Church

Surrey GU1 4QU

Gloria McDermott John Perry*

Tel (Fax): 020 8549 3383

Tel: 01483 300905

Email: nick.ball@howell-jones.com

Email: ian@castlepartnership.co.uk

Julie Rowe Ken Seakens* *Non-Committee Member.

membership details Annual Subscriptions:

£95 per person, per year.

Corporate Subscriptions:

(20+ fee earners) £1,800 per year

Solicitor

(not in private practice) £60

Solicitor

(not practising) £35

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 Spring 2016 Despite the recent freezing weather Winter 15/16 is now firmly behind us. My first few months as President were a relatively relaxed affair, with committee meetings and CPD events kept to a minimum whilst people concentrated on enjoying time with their families and friends over the Christmas period and plans for the year ahead. My diary has now begun to take shape for the busy SLS year aheads.

alancing work life with ‘extracurricular’ pursuits has always been a tough part of being a solicitor. The work which needs to be carried out by the President, the Committee, Council members and our CEO is a big challenge from a time management point of view, but one which we all relish. I must admit that the tongue in cheek morning greeting of ‘Hello, Mr President’ by colleagues in the office was slightly embarrassing at first, but all part of the fun of taking up this role. On 12th January I trekked over to Esseborne Manor Hotel, Andover, to attend my first meeting of SAALS, the Southern Area Association of Law Societies. This meeting brings together more than 20 Presidents and Secretaries from various local law societies across the south of England. The day was long, but I picked up lots of great new contacts and some excellent ideas for the future of SLS. We discussed the early responses to the news of the collapse of VEYO, which resulted in a lot of healthy debate! After the formal meeting, I attended an interactive session put on by the SRA, which asked us to view several scenarios and give our opinion as to the severity of punishment which should fall on the solicitor involved. If any of you get the chance to attend a similar session, I can strongly recommend it. Since my last Jottings there have been some serious and far-reaching announcements with regard to Criminal Legal Aid work. As I am sure you were all aware, a plan has been in place to introduce a two tier contracting system with regard to criminal legal aid work, and a general reduction in the fees which can be charged by legal representatives. The good news is that we have seen an acknowledgement by the Lord Chancellor that the proposed system is not workable, and that adaptations need to be made. He has agreed that the dual contract system can not work in its current form, and

there has also been a positive change to the fees which practitioners will be able to charge. The bad news is that they have merely delayed the process, and that it seems changes will still need to be made. Although the realisation that the proposals are unworkable is good news, it is not the end of the story. It has come too late for the law firms who have spent hundreds of hours preparing bids. The positive message to come out of this is that the representations made by our profession are one of the key reasons for the changes. Without these objections it is likely that the proposals may have been pushed through. As a profession we need to react to consultations, communicate with each other and let our voices be heard. Thanks are due to fellow committee member, Ian Wilkinson, who practises in Criminal Law and provides us with an insight into the struggles felt by firms in this area. Another major announcement came from Lord Justice Jackson, who has suggested that a fixed grid of fees be applied for all claims up to £250,000. Currently fixed costs apply only to personal injury claims valued up to £25,000. Although not all of Lord Jackson’s recommendations have been adopted by the Government in the past, the speech provides a cautionary glance towards the way the profession may be heading. If we have learned anything from the Criminal Legal Aid process, it is that the only chance we have of getting our views across is by communicating with each other. SLS is more than happy to act as a conduit, and any views from our members as to how you think these changes might affect the profession should be communicated to us. Thanks are due to fellow committee member James Scozzi, who first brought this to our attention. In more positive news, in the last few months we taken steps to set up our COLP/COFA Risk Managers’ Group, aimed

at bringing our members together and sharing information on how best to operate within this complex area. Malcolm Martin and James Scozzi have been instrumental in setting this group up, and the first meeting of this group will take place on Monday 11th April from 12.00 to 13:30 at Morrisons Solicitors LLP, Redhill. If you or anyone in your firm would be interested in attending, please contact Sue Seakens directly. I hope that by now you have all had a chance to visit our shiny new website, at www.surreylawsociety.org.uk. Here you will find news and information about all of our upcoming training events, as well as pictures from past events and details of upcoming social functions. Some of the upcoming social highlights include the ‘Legal Brain of Surrey’ Quiz night (14th March), the Kingston Area President’s lunch (19th April, Cote), the Guildford Area President’s Lunch (17th May, Weyside Pub) and the Guildford Legal Walk (6th June). All events are relaxed, and most importantly – fun! I hope to see as many of you as possible. Please contact Sue Seakens for further information or to sign up. Please also get in touch if your firm would like to be involved in the SLS football tournament later in the summer. Over the coming months I will be concentrating on developing the website even further, improving our links with the Young Surrey Lawyers Group, and planning the Gala Dinner (details of which will be provided later in the year). I will also be attending the Law Society Presidents’ and Secretaries Conference at Chancery Lane, where I hope to make some useful contacts and pick up some tips from other local law societies. I look forward to seeing you at an upcoming SLS event. n

DANIEL CHURCH, SLS President Surrey Lawyer 5

Editorial

CEO Report Spring 2016 As we head towards Easter the promise of early good weather seems more than a little slow in arriving but the SLS year is now in full swing with CPD and social events aplenty. I look forward to seeing lots of you at the President’s Area Lunches, the Surrey Legal Walk, Seminars and Conferences, the Annual Gala Dinner and of course the AGM in November! Keep an eye on our lovely new website for dates, venues and times www.surreylawsociety.org.uk.

t is of course renewal time for the Society in more ways than one. April 1st sees the start of a new Membership year and my colleague Elaine Jacobs is busy dealing with renewals and staff updates from you all. It is encouraging to see that there is less change in terms of firms merging, or even closing down, such as we have been experiencing during the recession. Reports from members that I meet at events are encouraging in terms of increase in client work and we are also getting more job alerts for the new Jobs page on the website. All encouraging signs of a return to a healthier marketplace. As part of the work being done in Daniel Church’s year as President we are reviewing everything that we do to make sure that you are getting the best service for the best price…but I won’t steal Dan’s thunder by reporting on it here. Suffice it to say that the Committee and Management Team at SLS are keeping very busy indeed on your behalf. Another significant change that will affect us all this year is the new SRA Continuing Competence Scheme (son of CPD). The new scheme is already being adopted by some firms but come 1st November we must all join the scheme. There are many rumours and horror stories around about how it will be ‘policed’ and what sanctions will be applied to firms, or individuals, that fail to meet the requirements…which would be easier to deal with if the SRA provided a more structured statement of what is required! Is it me or does ‘outcomes focussed’ feel a bit like ‘wait and see’.

It will not be enough to just carry on doing the 16 hours CPD that relates to your area of law. It definitely will not be enough to hope for the best and do nothing different. Competence means exactly that…and it covers everything you do in your daily work that is likely to result in: poor client care, risks that impact on clients and the firm, and poor personal management and that of those who work with you or report to you. How does that feel? A bit scary? It needn’t be. Just like eating the proverbial elephant, you break tasks down into manageable, bite-size pieces. If you need a bit of help with this particular elephant, we are preparing a special seminar for later this year to lead you through the process, but in essence all you need to do is follow some very simple steps. I hope to be able to cut through the confusion and suggest what I like to think of as the ‘Simply Lemon Squeezy (SLS) approach to Compliance Without Tears’: A) Brainstorm your work (all of it) daily, weekly, monthly, yearly B) Group all the key areas - clientrelated, areas of law, firm-related, personal skills etc C) Ensure that at least once a year you address each area with updates or remedial learning

Keep in mind the need to review your own skills and knowledge to be competent in your work. Training needs to address any gaps in knowledge, areas for improvement and new skills required. If you supervise or linemanage another member of staff you will need to ensure that they are doing this too…or you will need to do it with them. Remember that the SRA are adopting a two-prong approach to the new scheme. Competence is the personal responsibility of all individuals working in the firm and the corporate responsibility of the firm itself. Phew! Lots to do, but as they say ‘it isn’t rocket science’. I am of the opinion that with their hard-pressed resources the SRA will probably rely on the fact that the larger firms have Human Resources people to manage staff competence, the SME firms will probably have Lexcel or one of the Quality Standards to check staff competence on an annual basis…but for the rest of us? Potentially these are the ‘easy targets’ for the SRA to scrutinize. That doesn’t mean that any of us can stick our heads in the sand. Continuing Competence is happening, so be prepared. n SUE SEAKENS, CEO Surrey Law Society

D) Competence learning can be achieved in a wide variety of ways, so consider them all E) Remember to keep any evidence of your learning in a Training Log F) Assess how effective the learning method was for feedback to others and future training Surrey Lawyer 7

Local News

The Law Society monthly report March 2016 Mark Hudson, Head of Relationship Management (London, South East and East).

News The Relationship Management team is changing - update Over the last few months the Relationship Management team has been undergoing a reorganisation and we would like to share the results with you. The reorganisation has been carried out to ensure that we are meeting our member’s needs fully and:

• Targeting the team around the country according to where members are based

• Improving links with in-house members • Making better use of a variety of communication and engagement channels. The new team structure will be broadly split across four main areas as opposed to nine. Each area will be led by a head of relationship management and will be supported by relationship manager and relationship management executive roles. The team will be led by a director of Relationship Management. The Wales Office will remain the same with the team joining Public Affairs. Interviews for the new head of relationship management roles have recently been held and the appointments are below:

• London/ South East/ Eastern region Mark Hudson

• North: including North West, Yorkshire and North East - Jo McLeod

• Midlands and South West - Rav Hothi

• To ensure public protection across the whole legal services sector, a single regulator of legal services should set the minimum regulatory rules and be responsible for independent regulatory enforcement against those rules. This will reduce costs and ensure better and simpler regulation which protects consumers consistently across the whole of the legal services sector. Professional standards should be distinct from the regulatory rules. Professional standards should be the responsibility of the profession and the regulatory rules should be the responsibility of the regulator.

• The profession should set the standard of entry into the profession and award the professional title of solicitor to ensure that professional standards of entry are maintained and the international reputation of English and Welsh law and England and Wales as the jurisdiction of choice is protected.

• The title of lawyer should be defined, and as appropriate protected, to ensure that only legal professionals, i.e. those qualified as a solicitor or barrister or legal executive can use it. This will stop the public from being misled and those who have no formal legal qualification calling themselves lawyers. If you have any feedback you would like to contribute please contact Mark Hudson.

Mark was previously the Regional Manager for Greater London. His contact details are mark.hudson@lawsociety.org.uk and 07794 335818.

My Law Society is a new function on the Law Society website that allows members to customise the information they see. It's also where solicitors can update parts of their profile on Find a Solicitor, our online directory, helping them to attract more clients.

Interviews for the next level of Relationship Managers and Relationship Management Executives are currently taking place and we will update you soon.

On average over 550,000 visitors use Find a Solicitor each month, so enhancing your profile will help boost your appeal to prospective clients.

Consultation on regulation and separation coming in the spring

You can sign up to My Law Society at www.lawsociety.org.uk/log-in/. When you register for My Law Society, you can also update parts of your Find a Solicitor profile.

• The City - Clive Black

In November 2015 Her Majesty’s Treasury announced plans to consult on separating the legal services regulators from their professional bodies - such as the Law Society from the SRA. In preparation for the launch of the consultation which is likely to be Easter, we would like your feedback on our recommendations.

The new areas you can update are:

The Law Society's position is that to support and protect the public, regulation of legal services should be simpler, better, and continue to be independent of the state. Regulation and professional standards have become confusingly mixed together and this needs to be addressed.

• Social media and web links

The Law Society recommends reform as follows:

8 Surrey Lawyer

• Tagline - the individual’s unique selling proposition in up to 140 characters

• Biography - detail of knowledge, expertise, career history, legal issues worked on

• Languages - add or remove languages spoken

• Areas of law (practice) • Alternative email and telephone - option to display a preferred phone You can also watch our help videos on My Law Society and Find a Solicitor.

Court Closures It was recently announced that 86 of the 91 proposed court closures courts will happen across England and Wales. This means that five of the courts were saved. These included:

• Stockport Magistrates and County Court • West Cumbria Magistrates and County Court

• St Helens County Court (Magistrates court to close)

• Bath Magistrates, County and Tribunal Court

• Carmarthen Civil, Family and Tribunal Court The Law Society was disappointed that the government is still pressing ahead with the closure of so many courts. The majority of these closures will make it more difficult for a significant number of people to get to court, disproportionately affecting people living in rural areas, those with disabilities and lower income families. Combined with increases in court fees and reductions in eligibility for legal aid, many of the closures will serve to deepen the inequalities in the justice system between those who can and cannot afford to pay and could seriously affect access to justice. The Law society will continue to lobby the Government to save more courts across the country.

Online courts The Law Society has stressed that any new ideas for an online courts structure must be thoroughly tested before coming into everyday use. Law Society president Jonathan Smithers said experience has shown that making any major changes to one part of the justice system may have unintended consequences. Smithers said: ‘If it works as intended, an online court may be able to reduce the need for specialist legal advice, but it will not remove that need altogether. It must not be used as a way of normalising a two-tier justice system where those who cannot afford professional legal advice find themselves at a disadvantage against an opponent who is wealthier and/or more knowledgeable about the system.’ Smithers explained that the Society supports an online court for ‘straightforward money’ disputes worth up to £10,000, but is opposed to the recommendation to extend jurisdiction to claims up to £25,000. ‘Many cases will be too complex for users to lodge a claim on an online court,’ he added.

The impact of Brexit on the legal profession With the EU referendum taking place in June, here is a reminder of the key issues in the debate. The legal services sector would be disproportionately disadvantaged compared to the whole UK economy if the UK were to leave the European Union, according to economic analysis commissioned by the Law Society.

Local News The headline findings are that:

• The legal sector would continue to grow, but the rate of growth would be affected by a UK withdrawal from the EU

• The negative effects on growth in the legal services sector compared with the UK economy as a whole are due to the sector's reliance on intermediate demand from sectors which are likely to be adversely affected by a UK withdrawal from the EU, such as financial services

• The scale of those negative effects would depend on withdrawal negotiations and subsequent UK government policy actions The Gazette has also reported that the European Commission’s online dispute resolution (ODR) platform has finally been launched in the last few days, in response to the EU’s alternative dispute resolution (ADR) package of 2013. The article explains the aims and impact of the platform referring to recently issued Law Society guidance in detail.

Court of Appeal rules that harsh evidence tests for domestic violence are unlawful The Law Society has welcomed the Court of Appeal ruling that government changes to legal aid for victims of domestic violence are unlawful. The potentially life-saving ruling comes a year after the High Court rejected a legal challenge from the charity Rights of Women over the lawfulness of new rules that require victims of domestic violence to provide a prescribed form of evidence in order to apply for family law legal aid. The rules on evidence, introduced by the government as part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), have prevented victims of domestic abuse from getting legal aid for family cases, even when it is clear there has been violence, or there is an ongoing risk of violence. Without legal aid, domestic abuse victims are unable to access family-law remedies, which are vital in order to help them escape from violent relationships and protect their children.

MoJ to assess impact of small claims hike The Ministry of Justice has said that an impact assessment of government plans to increase the small claims limit will be published alongside a forthcoming consultation in March or April. Chancellor George Osborne proposed in November that the limit should rise for personal injury claims from £1,000 to £5,000 – effectively removing lawyers from the process altogether. The policy was packaged on the basis that motor insurance premiums would come down, as insurers would pass on savings on legal costs. The government is also considering a proposal to scrap general damages for ‘minor’ soft-tissue injuries. At a meeting between the MoJ and the Association of Personal Injury Lawyers officials made clear that work was being

carried out to ensure claims management companies do not move into any space vacated by lawyers, with a report on CMC regulation due out in March or April.

Submitting further comments to Lord Justice Briggs before his final report is completed in the summer, the Law Society pointed out that innovation is essential but new ideas must first be thoroughly tested before being rolled out.

Law Society calls for lawyers on work experience to be paid

The Law Society emphasised that it recognises the important role of information technology (IT) in the justice system and the efficiency savings for lower-value cases that an online approach to civil justice could offer, but warned it was critical that legal advice remained available to help people navigate the online court.

The Law Society has called for firms to pay those on work experience the minimum wage or above, after a survey showed that many aspiring lawyers were working for months unpaid. The Law Society has said that work experience opportunities should be clearly defined, openly advertised, and paid to the national minimum wage where possible, and that unpaid placements should last no longer than four weeks, with expenses covered. The guidance, drawn up in collaboration with the Junior Lawyers Division (JLD), follows a survey on work experience by the JLD in 2014 in which 80% of respondents said they had done some form of unpaid work experience.

New Law Society advice on protection against scams We have launched a new webpage to help firms protect themselves against being scammed and provide them with help and support if they have fallen victim to fraudsters. The advice focuses on how to help firms avoid diversion of client monies into the accounts of criminals and the resulting regulatory and financial consequences.

Awards 2016 rewards excellence in-house The Law Society’s 2016 Excellence Awards marks a decade celebrating the best of the solicitor profession. This year a new category is being launched: Excellence In-house recognising outstanding work and exceptional achievements by an in-house team. The winners will need to have demonstrated a unique blend of legal and other skills such as leadership or innovation. Judges will be looking for a team which can provide evidence of applying these skills to the benefit of both the legal function and their overall organisation.

Consultation responses CMA scope of study into the legal services sector

SRA Training for Tomorrow: Assessing competence The Law Society has responded to the SRA's consultation on the process for qualification as a solicitor. The SRA is proposing to introduce a Solicitors Qualifying Examination (SQE), which would comprise a series of centralised assessments of knowledge and skills. This would replace the existing routes to qualifying as a solicitor. The Law Society strongly supports centralised assessment provided that the level is set appropriately and does not result in a dilution of standards, which will damage the standing of solicitors at home and abroad. The Law Society is also calling for the routes of entry into the profession to be much clearer to ensure that the best candidates can enter the profession, irrespective of their background.

Legal Ombudsman consultation on draft 2016-17 budget The Legal Ombudsman has asked for comments on its proposed budget for 2016/17. It is difficult to comment fully on the budget given that the strategy for the Legal Ombudsman has not been published. We are pleased that the cost to the profession is set to fall. However, the unit cost is still high compared to other Ombudsman Schemes and we would like to see this reduced.

HMT: Higher rates of stamp duty land tax on purchases of additional residential properties The Law Society welcomes the opportunity to respond to HMT consultation document entitled "Higher rates of stamp duty land tax (“SDLT”) on purchases of additional residential property” (the "Condoc"), released on 28 December 2015.

The Law Society has responded to the Competition and Markets Authority (CMA) invitation to comment on the notice on legal market study. Read more

Civil Courts Structure Review: Interim Report by Lord Justice Briggs The Law Society has responded to the second stage of a root-and-branch review of the structure of the civil courts in England and Wales, warning that an online court is not a universal remedy for the challenges facing the court system.

Surrey Lawyer 9

Local News Mark Hudson, Head of Relationship Management (London, South East and East).

SRA open consultations The Insurance Act 2015 and consequential changes to the minimum terms and conditions of professional indemnity insurance The Insurance Act 2015 (the Insurance Act) will come into force on 12 August 2016 and will make changes to the law on nondisclosure and misrepresentation in relation, in particular, to commercial insurance contracts. We are proposing to amend the minimum terms and conditions (MTC) of professional indemnity insurance (PII) with effect from 12 August 2016 to bring them into line with some aspects of the Insurance Act when it comes into force. The consultation closes on 24 March 2016.

Practice notes

Environment Agency flood maps and specialist surveys to insurance.

In-house pro bono practice: regulatory requirements

This practice note:

This practice note explores the regulatory impediments to in-house solicitors providing pro bono services to the public, with the aim of assisting those in-house solicitors who wish to do so. There are a number of regulatory requirements that apply to in-house practice, and the purpose of this practice note is to assist inhouse lawyers wishing to offer pro bono services to the public. This will show them how to do so in accordance with the Solicitors' Regulation Authority (SRA) Handbook.

Flood Risk We have produced a revised flood risk practice note which reflects increased concerns over homes and businesses in flood-prone areas. The practice note covers the issues and resources that solicitors need to be aware of when acting for buyers, from

â&#x20AC;˘ aims to help solicitors protect clients from flood risk, increasingly a concern for those owning or occupying property, and

â&#x20AC;˘ provides information for those looking to buy property in flood prone areas

Events Anti-money Laundering Workshops The Law Society is running a series of regional workshops to help Money Laundering Reporting Officers (MLROs), or those with similar responsibilities, address common challenges faced in this crucial role. This year's workshops feature all new material, re-drafted to focus on current AML and financial crime issues. The workshops run in association with Experian and Accuity. 26th April, Chancery Lane 13th April, Southampton n

Council Memberâ&#x20AC;&#x2122;s Report Well I suppose you are all going to ask me about VEYO. You are right to do so. Although only 3 constituents have.

ommercially sensitive information precluded reports on progress while it was proceeding but there is no doubt that the announcement of the scrapping of the project will have come as a shock to many solicitors.

As is right and proper the Law Society have commissioned a report from independent consultants to revisit the entire process and it would be invidious to make comments before that report is published and then we can all make up our own minds. I know the process is robust and deep as I volunteered as one of the Council members to be interviewed by the investigating panel, so I suggest that we take the advice we always give to our clients to assemble the evidence first before deciding whether there is a case to answer. Rest assured Sushila Abraham and I will keep members fully up to date as soon as we are in a position so to do. Surprising as it may seem this is not the only business that the Law Society have been discussing. The new system of a report being produced after every Council meeting which is circulated to the membership through the Surrey Law Society seems to be working well. The meetings are long, and obviously there is confidential content while policies and strategies are being formed, but I would encourage anybody who has any queries

10 Surrey Lawyer

on any of the matters raised to contact me or Sushila so that we can take concerns forward. After a contested election I have been voted on to the Scrutiny & Performance Committee of The Law Society. This is the committee that looks at the work of all the individual boards to ensure that their work is transparent and up to scratch. It is an interesting exercise and gives a good overview of all that goes on in The Law Society and beyond, and I look forward to playing my part in ensuring that the profession is served well by the organisation that is The Law Society of England & Wales. The sheer weight of work that goes on in Chancery Lane on behalf of the profession always impresses me. No matter what the Government comes up with or what consultations the Ministry of Justice issue (with ever decreasing return dates) the staff at the Law Society with the help of the voluntary committee members and Council always are on top of the response after proper discussion and testing the views of the profession. Once again I repeat if the profession do not tell the Law Society what they want, the Law Society cannot carry it forward which is extremely frustrating at times as we often have to go out canvassing responses which, apart from being time consuming and wasteful, does not show the profession in a good light when dealing with Government.

They are entitled to assume that photo: John Perry if there is not a response from within the rank and file of the profession that the matter is not contentious or worthy of attention which almost invariably is certainly not the case. The Presidents & Secretaries conference is coming up shortly when your representatives at the Surrey Law Society will have an opportunity of having their say at Chancery Lane directly with the powers that be, so do feed in any matters of moment and they, or the Council Members, will be happy to take them forward. By the time you read this the mad scramble to buy second homes before the Stamp Duty went up will be over. For those of us old enough to remember the abolition of double tax relief on mortgages in 1988, the month before D day was very reminiscent. I hope it at least generated some decent work for your firms. As ever, we are at your disposal and please be in touch rather than moan to your friends privately. n

I look forward to hearing from you. by John Perry TLS Council Member for Surrey Contact: john.perry@palmerssolicitors.co.uk

Local News

Meet the President Every year we hold 2 informal lunches, in Kingston and in Guildford, so that members can meet our new President and members of the SLS committee and discuss matters of the moment with colleagues. Why not bring a group from the office - all are welcome. This year's President, Daniel Church of TWM Solicitors, will be holding his area lunches at the following venues:

Tuesday 19th April - Kingston Lunch at Cote Brasserie

Tuesday 17th May - Guildford Lunch at the Weyside Inn

The 9th Annual Guildford Legal Sponsored Walk 5.30pm Monday 6th June In aid of

SURREY LAW CENTRE Both venues are right by the waterside and within easy access of car parks or public transport. Please note that neither venue has its own parking onsite. We gather at 12.30pm and sit down to eat at 1.00pm. Your ticket price for either of the lunches is £24.00 pp includes lunch, wine or soft drinks, and coffee; VAT and service charge are included in the price. We will be in touch nearer the time with the restaurant menu choices. Please note that numbers are strictly limited so, to guarantee your place, please apply early - first come, first served! For further information and to book, please contact Sue at sueseakens@surreylawsociety.org.uk

The walk will start at Guildford Combined Court and takes an 8 mile route along riverside and countryside, ending at a reception at Clyde & Co’s Guildford offices. You can enter as a firm team or as an individual and there is no pressure…you can amble, ramble or sprint…as you like. Take in the glorious Surrey countryside, chat with friends and colleagues, or just walk quietly along with your own thoughts for a perfect day’s-end chillout. For more information e-mail mark@markgoughlaw.com or book now by emailing sueseakens@surreylawsociety.org.uk

SLS Risk Managers Group Inaugural Meeting Monday 11th April at 12.00 to 13:30 - 1.5 hours CPD Boardroom at Morrisons Solicitors LLP, Clarendon House, Clarendon Road, Redhill RH1 1FB Following our Rules & Regulations CPD event on 3rd February we asked those present to express their interest in joining our new Risk Managers’ Group for COLPs, COFAs and other key risk managers. The response was excellent and we are delighted to confirm the first meeting of this group will be held on Monday 11th April at 12.00 noon. This event is FREE to SLS members thanks to the very generous offer from Morrisons to host this meeting and provide us all with drinks, nibbles and sandwiches.

We are working on the Agenda but the main purpose of this first event will be to scope the range of topics and the best format for future meetings. The meeting will last for an hour and a half and can be used to claim 1.5 hours Risk Management CPD. You may bring a risk management colleague with you to this event as long as they are registered SLS Members. Please note that on-site visitors’ parking is very limited and you are advised to use the multi-storey car park opposite Clarendon House. It is a short walk from

Redhill Station. For full access details and a map see http://www.morrlaw.com/redhill/ In order to arrange for seating and catering we would be grateful if you could confirm attendance as soon as possible: sueseakens@surreylawsociety.org.uk or call 01344 860830. Alternatively you can complete the form below and return it to DX 94652 Virginia Water. Booking Deadline is Friday 25th March

SLS Risk Managers Group - Inaugural Meeting Monday 11th April at 12.00 to 13:30 Please book me on the Risk Managers Group Meeting on Monday 11th April (no booking fee). Name: ___________________________________________________________ Firm: _________________________________________________________________ Email: ___________________________________________________________ Phone:________________________________________________________________ I would like to bring a colleague with me: Colleague Name: _________________________________________________ Email: ________________________________________________________________ Signed: __________________________________________________________ Dated: ________________________________________________________________ Please return Booking Form by 25th March to Surrey Law Society, DX 94652 Virginia Water

Surrey Lawyer 11

Local News

Visit to UK by Young Russian Lawyers by Alastair Logan, OBE., LLB.

he Solicitors International Human Rights Group (SIHRG) were able to deliver three lecture presentations to a group of young Russian lawyers mostly practising in the field of criminal law from St Petersburg who visited the UK this month with the assistance of Citizens Watch International (http://citwatchlondon.org/). The lectures were on Legal Ethics, the use of Visuals in Criminal Trials and Fair Trial Principles and Miscarriages of Justice. The response from the group was very positive and they have asked that SIHRG come to St Petersburg in 2017 to provide a larger training programme which will involve many more Russian lawyer participants. It was clear that they had serious concerns about the legal system in Russia and were very anxious to learn about how the law worked in the UK and how international standards were woven into the legislation and day to

day practice. They stated they were very impressed by both the SIHRG presentations and their visit to the Old Bailey and meeting the Recorder of London. On 10 March 2016 Zeid Ra'ad Al Hussein, United Nations High Commissioner for Human Rights stated: “In the Russian Federation, I am concerned about signals received from the government regarding its intention to close our presence in Moscow. At a time when adherence to international human rights norms is increasingly challenged, I believe more cooperation with my Office - rather than less - would be useful, for instance on the subject of the shrinking space for human rights defenders and non-governmental organizations. This engagement could assist in ensuring compliance with recommendations from the international human rights mechanisms, such as the

UPR, which have been accepted by the Russian Federation including recommendations regarding the reform of legislation and strengthening human rights institutions.”

Author Profile: SLS Member Alastair Logan is Vice Chair of the Solicitors International Human Rights Group. The Solicitors’ International Human Rights Group (SIHRG) promotes awareness of international human rights within the legal profession and mobilises solicitors into effective action in support of those rights. The Group encourages human rights lawyers overseas and conducts related missions, research, campaigns and training. n

2016 Legal Brain of Surrey Quiz at the University of Law, Guildford On the evening of Monday 14th March some 63 of the finest legal minds in the county competed for the title of Legal Brain of Surrey at our annual quiz held as always at the University of Law in Guildford. Competing for the prestigious Mike Coverley Challenge Cup were 21 teams of 3 from across the county including Laytons, Gordons Partnership, S Abraham Solicitors, Surrey Law Centre, Hart Brown, Russell-Cooke, Palmers Solicitors, TWM Solicitors, Stevens & Bolton, Cheyney Goulding,

DMH Stallard and QS Palmers. With 10 rounds of general knowledge questions, set by the devious mind of our very own Michael Hughes OBE, the game was afoot. Taking us swiftly through the 10 rounds was our dynamic Quizmaster (and Law Society Council Member) John Perry. From Sleuths to Super-Heroes and from Maths to Maps and Monarchs much memory-searching and head-scratching went on. In the end it was a very close run thing but out in front with 89 points out of 100 was Laytons 1st team, reclaiming the cup from last year's winners Gordons who came a creditably close second with 84. The winning team

not only claimed the Cup but also a bottle of Prosecco each to celebrate their victory. To ensure that all the money raised could go to charity, we asked everyone to bring their own food and drink. As a result we raised over £500.00 for the President's 2016 Charity, Royal Marsden Cancer Research in Surrey. We will of course be back next year for another mind-boggling quiz and hope that more of you will grasp the nettle and give it a go. Who knows you might be our next Legal Brain of Surrey winner! n

Surrey Lawyer 13

Probate

Probate Software: Training, Leadership and Support by Gregory van Dyk Watson, Managing Director of Isokon Limited

Training

Leadership

Charles Christian Quote

Enduring the learning curve

Charles Christian, the doyen of legal software technology, in his chapter on training in the ‘Probate Practitioner’s Handbook’ (The Law Society, 2006) writes, ‘left to their own devices, fee earners will often claim that they are ‘far too busy’ to attend training and then complain that the software is ‘hopeless’ when they later discover that they do not know how to use it.’

Training is much underrated Training to use software is much underrated

by most firms. It is an area where many firms try to make savings. By doing so, they risk shooting themselves in the foot. Trying to save money on training is a false economy. The result is that fee earners and support staff will not be able to use the software properly. The consequent risk to the firm is a wasted investment. Trying to save money on training is a false economy. The result is that fee earners and support staff will not be able to use the software properly.

It is important to actively use the software This however is only half the story. Even more important than training is for fee earners and support staff to actively use the software after training. Becoming familiar with the software is as important as the initial training. In a regime with weak or laissezfaire leadership, fee earners will often be tempted to go back to their old and inherently inefficient ways of dealing with estate administration, and ignore the benefits of a dedicated probate system.

History is littered with the detritus of those who refused to learn Most of us enjoy the easy familiar routines. Learning how to use a new software system is a nuisance, no matter what the potential benefits might be. It is even worse when we are obliged to suffer a temporary decline in our productivity until we are familiar with the new system. History is littered with the detritus of the failures who refused to learn and adapt to the new because it was too much trouble.

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Strong departmental leadership would insist

on fee earners and support staff enduring the learning curve. People do not expect it to take as long as it often does, sometimes three, four or five weeks. It is nevertheless the only way to ensure the success of a new system. The alternative is to risk failure and a waste of the money that you have spent.

Those who fail to learn will blame the software Your probate team who fail to learn the software will of course blame the software. I have observed this phenomenon like watching a car crash in slow motion, while the head of department ignored all the warnings.

Most firms are blessed with strong and responsible leadership Fortunately most firms are blessed with strong and responsible leadership. The more usual refrain in this instance is, “We don’t know how we managed before we got the new probate system.”

Support Support is a fundamental component of a good soft-ware solution, albeit often overlooked by many buyers. Lack of training increases the importance of support. This is particularly so with probate software, since probate is primarily an accounting function, while many solicitors still mistakenly think of probate as a case management function.

The bulk of estate administration is about finance The bulk of estate administration is about collecting and collating the finances of the deceased estate in such a way so that an accurate set of accounts can be easily produced and the myriad of inheritance tax forms can be automatically populated with the financial data that has been entered into your probate accounting database.

“Leadership experience? I have 13 people following me on Twitter!” Case Management is the easy part of probate work Case management is the easy part of probate work. It involves keeping track of the tasks involved, and outputting a series of relatively standard letters and oaths. All the easier if the financial data is held in an accounting database with which the case management component is integrated.

Support from your supplier is fundamental In view of the sheer complexity of probate work, understanding the tax rules, and how to treat the financial data, increases the importance of support, and being able to readily contact your software supplier for assistance. It is important that your probate software supplier can assist you in knowing how to treat ISAS and PEPS, listing the market value of equities and their dividends, calculating the cash value to the beneficiary who does not want shares, accounting for an abatement of assets, listing the foreign shares and calculating the tax due under the double taxation agreement, and more recently, how to deal with FATCA.

Quality of support from your supplier who has previous experience of probate work In order to provide you with the quality of support to understand these questions, it is fundamental that your probate software supplier’s support team have previous experience in this area of work, and can provide relevant and reliable answers. n

For further information please contact: Gregory van Dyk Watson, Managing Director of Isokon Limited. Email: gregory@isokon.com or call 020 7482 6555. Alternatively visit www.isokon.com

Probate

Protecting Property When somebody dies, the largest element that makes up their estate is usually their home. This is often their own property, filled with a lifetime of memories, keepsakes and belongings. After the owner’s death, this building and its contents take on a very different role and to an administrator. The property is viewed in more simple terms and is very often the estates most valuable asset. As you all know, it is the role of the estate administrator to ‘manage’ and ‘realise’ these assets, but there is so much more work involved in these two words than meets the eye. They bring a whole new set of challenges to manage. These include the largely unpredictable British weather and the evenings provide criminals with perfect opportunities for acts of burglary and vandalism. Insurance company Aviva shared

their claims statistics for the ten years between 2002-2012, and reported a 150% increase in claims for malicious damage to homes during this period. More vulnerable empty properties such as probate properties are at even greater risk of damage from vandalism and weather. Empty properties such as these hit the headlines last year when an article in the Telegraph stated: ‘More than 700,000 residential properties in England are left unoccupied, according to the charity Empty Homes. These vacant properties are often managed by people taking responsibility for the estate or affairs of another person or while a property is awaiting sale. However, many wrongly assume that existing buildings and contents cover would provide adequate protection should something go wrong and as a result, hundreds of thousands of homes are currently uninsured’. With the demands of your workload you would perhaps struggle to see how you might arrange them all yourself. This is another area, in addition to our more widely

known research, where our experienced staff at Fraser & Fraser would work with you, providing you with a trusted partner to offer support throughout the lifecycle of your case.

Things to consider: - Maintenance & Security - Empty Property Insurance - Property Valuations - Energy Performance Certificate - Probate sales - Property Clearance If you are administering an estate with which you require our assistance or are experiencing difficulties, contact one of our case managers now to discuss how we can help: legal@fraserandfraser.co.uk or 020 7832 1430

Surrey Lawyer 15

Probate

Heir locators’ fees - Who should pay? Professor Lesley King, Private Client Head of Practice at The College of Law, Bloomsbury, looks at the options available to legal professionals and their clients. The process of administering most estates is relatively straightforward. Personal representatives (PRs), with or without professional help, collect in the assets and, having settled liabilities, pay what remains to the beneficiaries. Administration expenses such as the cost of the funeral and the professional fees of solicitors, estate agents, valuers and accountants are met by the estate. However, sometimes there are problems identifying and/or locating those entitled to share in the estate. In such cases the PRs will rely on the services of professional genealogists, sometimes known as ‘heir hunters’. These firms are extremely good at what they do and will normally have little difficulty identifying and locating the beneficiaries. However, there are some problems for PRs in relation to paying for these services. There are broadly two options available. The first is an agreement that the heir hunter should receive a share of the beneficiary’s entitlement, often called a ‘contingency fee’. The second is that the professional charges for their services, which may be on a fixed-fee arrangement or based on the time taken to complete the work (typically known as time and expenses).

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No PR who instructs a firm on the basis of either time and expenses or a fixed fee service could be criticised for having done so. On the other hand, there are risks associated with the contingency fee model. Under a contingency fee model, once the heir hunters have located a beneficiary, they will ask him or her to sign an agreement instructing the PRs to pay a percentage of the beneficiary’s share in the estate to the heir hunter. It is not unusual for fees of 30% and more to be charged. Alternatively, the heir hunters might ask the PRs to sign an agreement stating that they will pay a proportion of the share of located beneficiaries to the heir hunter. Either way, the beneficiary is deprived of a proportion of their rightful entitlement. There is, of course, nothing wrong with a beneficiary deciding to share their entitlement with a third party (deeds of variation are commonly entered into to do exactly that) but in this instance the PR is imposing an obligation on the beneficiary to do so. It is difficult to see how this can be justified. In an article on this subject in Private Client Business 293 (2005), Richard Wilson and Constance Mahoney of 9 Stone Buildings said: “In the authors’ view, whilst there is no authority which provides assistance on this point, it is possible that a beneficiary might successfully argue that the personal representative has acted in breach of duty by

appointing an heir locator on such a basis, and should be personally accountable for the share that the beneficiary has paid to the heir locator.” PRs cannot require a beneficiary to agree to assign a share of their entitlement to the PR. Therefore, it must follow that an agent acting on their behalf must be similarly prohibited. There is also an issue as to whether PRs can properly disclose information about the estate to someone who is going to use that information to make a profit for themselves. Clearly where beneficiaries have to be located, there are unavoidable fees involved and PRs are entirely justified in incurring such costs. However, they are in a fiduciary position and must act in the best interests of the estate. If services have to be obtained, the PRs should use the most cost effective method of obtaining them. This is a difficult area of the law to interpret and practitioners should think carefully about how the work involved in tracing beneficiaries should be funded and where the costs should fall.

This is a redacted version of an article that was first published on Title Research’s website in February 2016. To read the full article, visit: www.titleresearch.com

Probate

Probate: how it works Sonia Dhesi from law firm Hart Brown gives a step by step guide on how Probate works.

It is the sad truth that death will affect us all at some stage in our lives. Having to cope with the loss of a loved one can be devastating without the added burden of having to also consider legal matters.

ne of the first steps after someone has passed away is to register their death at a local Registry Office. It is also necessary to begin gathering information on the deceased person’s assets and liabilities and the government’s Tell Us Once service, which is available through the Registry Office, is a great way to start this by notifying all relevant government departments in one go.

introduction of an additional nil rate band (to be phased in over a five year period from 6 April 2017). The additional nil rate band will apply where the deceased leaves property to direct descendants and could provide an extra allowance of up to £350,000 in specific circumstances, providing a total allowance of up to £1 million. However, advice should be sought on the exact position and the best way to maximise the allowances available.

A common concern is how the inheritance tax will be paid. Some of the tax due must be paid before probate can be granted and this can often be paid directly from the deceased’s bank accounts via the direct payment system. It may also be possible to elect to pay inheritance tax by way of 10 yearly instalments in relation to the deceased’s property and certain other assets, which reduces the immediate tax that must be paid.

Before an application can be made for a grant of probate (or letters of administration if there is no will), the person making the application (known usually as the executor) must assess the size and complexity of the estate and ascertain whether inheritance tax will be payable.

To assess the inheritance tax position, the deceased’s assets and liabilities should be valued as though they were being sold on the open market at the date of death. When considering property valuations, it is advisable for the executor to obtain at least three valuations from local estate agents. In some cases, it may be beneficial to obtain a formal valuation from a surveyor especially if inheritance tax is payable and the exact value of the property could be a matter of negotiation with HM Revenue & Customs.

Once the grant of probate has been issued by the Probate Registry, the deceased’s assets can then be encashed or transferred. Once any outstanding debts have been settled, the estate can then be distributed in accordance with the terms of the will or the law of intestacy (if there is no will).

Gifts to surviving spouses or civil partners and gifts to charities are generally free of inheritance tax. Otherwise, inheritance tax will be payable where the value of the estate exceeds an individual’s inheritance tax nil rate band. The inheritance tax nil rate band is currently £325,000 and is due to remain the same until 2021. Inheritance tax is paid at a flat rate of 40% on the value of the estate exceeding the available inheritance tax allowances.

Assets held jointly should also be considered as well as personal possessions. In some cases, it may be beneficial to obtain a professional valuation of the personal possessions, particularly if there is inheritance tax to pay. The inheritance tax value of those possessions is their sale value which is often considerably less than their replacement value which many of us regularly consider when insuring our contents.

Where the deceased had been previously widowed, it may be possible to claim up to a further full inheritance tax nil rate band, bringing the allowance up to £650,000 on the basis of current figures. However, it is important to note that this allowance must be claimed through the relevant forms and is not automatic.

It is also essential to consider whether any gifts were made by the deceased in the last 7 years of their life. Gifts not only include assets given away but also assets that may have been given away but where the deceased still retained some benefit. HM Revenue & Customs expect full enquiries to be carried out and it is recommended that bank statements are reviewed thoroughly over this 7 year period.

It is then usually necessary to obtain probate, which is an order issued by the Probate Registry, part of the English court system, confirming the person who has the legal authority to deal with the estate.

Further changes to the inheritance tax rules have been recently announced are due to brought into force shortly with

There are occasions where a beneficiary may wish to vary the benefit they have received from the estate, either partially or in full, and re-direct their gift to a new beneficiary (e.g. a child). It is possible to achieve this by way of a deed of variation. For the deed to be effective, it must be correctly executed within two years of the date of the deceased’s death and can lead to considerable inheritance tax savings. Overall, it can be very time-consuming and stressful to deal with the administration of an estate. By instructing a solicitor, it is possible to alleviate some of the pressure, avoid potential traps and ensure that opportunities are taken to maximise the estate and minimise tax. Hart Brown offer a “free” half an hour consultation prior to deciding on whether to contract a solicitor. n by Sonia Dhesi

Surrey Lawyer 17

Conveyancing Focus

www.clc-uk.org/changing-regulators or call 0207 250 8465 18 Surrey Lawyer

Conveyancing Focus

Changing behaviour in the information age by Scott Bozinis, CEO, InfoTrack

Recently, I was lucky enough to attend a Legal IT conference having been invited to sit on a panel that included Pinsent Masons LLP and Addleshaw Goddard LLP. Much of the conversation was focused on how technology can be used to improve client relationships. Amongst the many interesting insights, there were a few key points that clearly resonated with the audience, one of which was the issue of having to remember various logins for multiple websites that lawyers use every day. This raised a knowing chuckle amongst the audience who clearly identified with the problem of not having one central hub to access all their online processes. So why did the audience find this amusing?

We are also more astutely aware of those technologies which we genuinely enjoy using in our personal lives, thus, it is only natural that we would come to expect a similar standard of this convenience in our professional lives too. Particularly with the advent of the internet, it is clear that our attitudes and expectations are continuously evolving with regards to technological change and that there will continue to be an increasing overlap between our professional and personal worlds.

Well, it’s due to our attitudes changing over the years, bringing new expectations. I believe that now, more than ever, people are conscious of which technologies are creating efficiencies and making their day to day lives easier and which are not. Nowadays technology has become completely embedded into society in a variety of ways, and we now expect to be able to use technology in every aspect of our lives - personally, socially and professionally.

In my opinion, one of the biggest changes to behaviour over the last 20 years has been the result of technology changes. We have come to expect ‘instant gratification’, or our need for everything to be easier, faster, flexible, and efficient, and to be at our fingertips. Some may argue that technology has turned humans into a lazy, lethargic species, however, I would counter that it is simply a shift in attitude, in that we now know there are smarter ways to achieve our goals, whether that’s at home or at work.

Thames Water Property Searches We are an experienced national provider of quality residential and commercial property search solutions across England and Wales. As well as being an official provider of the CON29DW Drainage & Water Enquiry, we also have a comprehensive range of property searches and discounted search packs offering convenience and value. Whether contamination and flood risk information is required, or searches on planning applications and areas licensed for fracking, we are here to meet your needs. How can we benefit your business? Ordering searches is quick and easy with our online ordering platform. In addition, we’ve got some easy-to-use online tools to help - from

boundary mapping through to online search tracking (so you’ll always know what stage a search is at), accessing accurate searches has never been easier. Our intuitive system has been shaped through feedback from our customers, ensuring it truly reflects what users expect from their perfect online conveyancing search experience. To find out more, visit us at www.thameswaterpropertysearches.co.uk • If there’s one thing we are a bit old-school about, that’s good old-fashioned customer service. We recognise the importance of providing fast, accurate and reliable information and we are passionate about the service we provide. • We’re a licensed partner of the National Land Information Service (NLIS), offering you electronic connectivity to every local authority in England and Wales therefore enabling a more cost effective and accurate transaction. This, alongside our established links with market leading suppliers, means you get direct access to all the due diligence searches you’ll ever need - and you get them from just one provider. So it doesn’t matter whether you need an environmental search, a local authority search, or chancel search - you can access them all from us.

Photo: Scott Bozinis

It used to be that we had to learn to adapt to technology, but today, technology is built to adapt to us. You will find it permeates our lives everywhere you look - just think smart thermostats that conserve energy, online shopping sites that tell you what other products you may ‘also like’, navigating a foreign city using Google maps, or even setting up automatic payments through online banking. So why wouldn’t we naturally expect this in our working lives too? We now co-exist with technology and going forward, we must adapt together to ensure a smooth evolvement and optimal efficiencies. Once this coexistence is noted and implemented in professional environments, the results will show why employing intuitive technology in the workplace is so essential. This is why I believe that conveyancers must also evolve with technology, and that those in management must focus on satisfying the needs of those at the coalface to make their work lives easier and get staff working smarter, not harder.

• You will also be secure in the knowledge that we are a business which is fully certified to the ISO 9001:2008: International quality management standard, so not only are we connecting you with all the right products, we also deliver them efficiently alongside a leading level of customer service. • We are dedicated to keeping our customers up to date by providing a range of free CPD training. Covering hot topics within the industry as well as addressing challenges and opportunities currently facing conveyancers, you will leave our events equipped with the knowledge to give your clients the very best advice on topics covered. If you are interested in our products and services or would like to take advantage of our free training opportunities we would love to hear from you. Simply get in touch by calling: 0845 070 9148 (Mon - Fri 9am to 5pm) or email us on: onlinecustomers@thameswater.co.uk

Surrey Lawyer 19

20 Surrey Lawyer

Conveyancing Focus

‘Philosophy of Change.... According to Yoda!’ Change is essential for growth and development in business. Without change, as the old Texas adage goes, “If all you ever do is all you’ve ever done, then all you’ll ever get is all you ever got.” The ability to maximize performance and productivity depends on the ability to change in positive ways.

s a company, we are constantly looking to encourage solicitors to change search provider; and we do so because we know that the outcomes will benefit them enormously. I’ve been in numerous meetings where there is an acute acceptance of what I am advocating but there remains a stubbornness and resistance to change.

Obstacles to Change In my experience, at least three of the obstacles that cause resistance to change seem most relevant when I'm trying to encourage a solicitor to try Index: • Fear of failure (“What if this doesn’t work?”, "We've been doing it this way for a long time and we’re getting by, so it's not worth the risk."); • Deeply ingrained habits (much like when athletes continue to practice bad technique, they become very good at the bad technique and that bad technique is what is executed in competition); • We continue to do things that give us a sense of comfort and security. Unfortunately, this environment may, at a minimum, not support change or, at worst, discourage change. In every case, not embracing positive change has the effect of self-sabotage. We don't deliver to our potential and achieve all that we could, either for our customers, ourselves or our colleagues.

Foundation of Change Yes, change is difficult. It might feel like swimming against the tide of many years of baggage, habits, emotions, and environment. But if you can overcome those obstacles and commit to a new direction, amazing things can happen.

Epiphany. Change starts with a simple, yet powerful, epiphany: "We just can't continue this way any longer." When you experience this realisation in the most visceral way, you have taken the first step toward change.

Emotions. Emotions can provide a powerful impetus to change. Whether positive, such as hope or expectation, or negative, such as fear, emotions can be potent motivators for change. Courage. Courage may be the single most important characteristic for changing. Change requires risk and risk is scary because of the fear of failure. Of course, the other side of the coin is that only by taking risks can you truly succeed. Change is like jumping into cold water. Shocking at first, you might initially regret having taken the plunge but, after you are in the water for a short while, you begin to adapt to the coldness. What was intimidating is now approachable; what had been unknown is now familiar; what was then painful is now invigorating.

by Kevin Johnson, Index Property Information

poignantly told a colleague of theirs (from another branch): "Index is one of the most helpful and obliging companies I have come across; if you have complex searches you simply contact them and they sort it all out. I do understand you are happy with (the other search providers name has been removed to protect the guilty…!), we were until we came across Kevin and Index”. As Yoda said "You do or you do not”; I hope that “you do” as it would be great to meet you!

For more information please contact our office on 0843 659 4000 or email me at kevin.johnson@indexpi.co.uk

Leap of Faith. Unfortunately, there is no certainty in change. And that lack of certainty can be truly terrifying. A great philosopher once said, "You do or you do not. There is no try." No, it wasn't Aristotle or Socrates who spoke those simple, yet profound words; the great thinker was...Yoda, the Jedi Master of Star Wars.

The Payoff There can be an immense payoff for your commitment and efforts to change; a major shift in maximizing performance and productivity. One of our customers

Surrey Lawyer 21

News Photo: Malcolm MacDonald

Public Law Cases with an International Element: Re N (Children) (Adoption : Jurisdiction) [2015] EWCA Civ This case involved care proceedings in relation to two children of Hungarian Roma parents. The Local Authority had made applications for care and placement orders with a care plan for adoption of the children in England. The children had spent a considerable period of time accommodated by the Local Authority under section 20 of the Children Act 1989 prior to the applications being issued by the Local Authority. The children were ‘habitually resident’ in England and, consequently, the courts of England and Wales had jurisdiction under Council Regulation (Ec) No 2201/2003 of 27 November 2003 (known as ‘Brussels IIR’ or Brussels IIA). However, they were also Hungarian nationals. During the course of the proceedings an issue arose as to whether the case should be transferred to Hungary under Article 15 of Brussels IIR. Article 15 provides for the transfer of the case to other Member States by way of exception, even though the transferring state has jurisdiction under Brussels IIR. After a series of hearings in the High Court this issue ultimately came to be determined at the final hearing. The judge presiding at the final hearing made a decision to transfer the case to Hungary at the end of the hearing and after hearing all the evidence in respect of the applications by the Local Authority. The Local Authority and the Children’s Guardian sought permission to appeal the decision, ostensibly on the grounds that the judge was wrong to order the transfer at a final hearing and where he had heard all the evidence in the case relevant to the decision on the welfare issues in respect of the children. During the course of the appeal the Local Authority raised a new ground of appeal, not raised at the hearing below, about the effect of Article 1(3)(b) of Brussels IIR which excluded ‘decisions relating to adoption and measures preparatory to adoption’ from the scope of Brussel’s IIR. The issue was relevant because of the Local Authority’s care plan for adoption and application for a placement order. The question arose whether care order applications with, either a care plan for adoption, or a placement order application running concurrently, were outside the scope of Brussels IIR as ‘measures preparatory to adoption’ and, therefore, not capable of transfer under Article 15. This line of argument led to the further question of what jurisdiction the courts of England and Wales have to order the adoption of children, and dispense with the consent of parents, who are foreign nationals. In his leading judgment the President of the Family Division Sir James Munby emphasised that, as the current law stands, parental consent can only be dispensed with if it can be shown that the child’s welfare ‘requires’ adoption, as opposed to something short of adoption, and that there can be no suggestion that the domestic law of England and Wales is incompatible with the UK’s international obligations, particularly the European Convention for the Protection of Human Rights, nor the jurisprudence of the European Court of Human Rights.

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The President also dealt with a controversy in the law in relation to the applicability of the law of England and Wales to foreign parents and children and, in particular, whether the grounds for dispensing with a parent’s consent to adoption, or changing of the status of a child who is a foreign national ,should be regulated by the law of their ‘domicile’ or ‘habitual residence’ because to do otherwise may mean that the parents’ and child’s status is not changed in their country of ‘domicile’, habitual residence’ or ‘presence’.

The President resolved the controversy by finding that : • Adoption in the law of England and Wales is not a private law transaction but it is the court’s order that alters the status of the child. • In the law of England and Wales where a court acts to create rights afresh, rather than to declare or enforce rights created by the parties, foreign law cannot apply. • Adoption and Children Act 2002. creates the jurisdiction for adoption and provides in detail the conditions of its exercise. The court has jurisdiction to make an adoption order if the statutory conditions are fulfilled. • Foreign law is, however, an important factor to be taken into account in considering the welfare of the child when applying the ‘welfare checklist’ under the Adoption and Children Act 2002 (eg. the likely effect on the child throughout their life of having ceased to be a member of their original family.) • The court should consider the disadvantages of a child having one status in England and Wales and another in another country against the advantages of adoption. (unless by Convention the country is bound to recognise an international adoption order).

In relation to the scope of Brussels IIR the President found that : • Care proceedings are not ‘decisions or measures preparatory to adoption’ and are within the scope of Brussels IIR even if the local authority’s care plan is for adoption because a care order does not authorise the child to be ‘placed’ for adoption. • Proceedings for a placement order which authorise that the child to be placed for adoption is a ‘measure preparatory to adoption’ and, therefore, outside the scope of Brussels IIR. • It follows that Article 15 of Brussels IIR applies to care proceedings, even if the local authority’s care plan is for adoption, but does not apply to proceedings for a placement order. • The care proceedings are distinct and antecedent to the placement order proceedings so that the care proceedings can be transferred where as the

placement order proceedings cannot. • The care proceedings are stayed in consequence of the Article 15 transfer whereas the placement order proceedings are stayed in consequence of the stay of the care proceedings. On the issue of the transfer of the case under Article 15 of Brussels IIR, the President reiterated the guidance from Re M (Brussels II Revised: Art 15) [2014] EWCA Civ 152, [2014] 2 FLR 1372.

He emphasised, in particular, that : • The question of transfer should be considered at the earliest opportunity in an appropriately ‘summary’ process, however as a matter of law this did not preclude an application being made at any stage of the process. • Judicial continuity is a ‘weighty’ factor in determining an article 15 request. • Evidence should be kept within strict limits in the context of a summary process. • A court in England and Wales must treat the judicial and social care arrangements of the relevant Member State as equally competent. • There should be transparency and openness between family courts in England and Wales and consular and other authorities of the relevant foreign state. • Local Authorities should be pro-active in informing relevant consular official of care proceedings on foot or in contemplation involving their nationals.

The President also found that : • The local authority had misused section 20 of the Children Act 1989 in accommodating the children for a number of months before issuing care proceedings , particularly because of the international element of the case and set out extensive guidance on how section 20 ‘agreement’s should be made between parents to ensure their is valid consent to the arrangements and the parents withdrawal of consent is respected. • It is as important that there is judicial continuity for cases in the Family Division as in cases before the district and circuit judges in the Family Court. This case had seven different judges hearing various aspects of the proceedings. The outcome of the appeal was the decision made by the judge to transfer the case was upheld by the Court of Appeal. It was found that the judge did not err in law and undertook a careful evaluation of all the relevant factors in his decision to transfer the case. n

by Malcolm MacDonald Barrister, 36 Bedford Row

News

Organise Your Firm to Grow Your Profits

by Richard Hugo-Hamman

The true growth of any business is through an increase in profit. It is a common misconception among owners of small law firms that growth is measured by the number of people in the business. Over the years, I have spoken with many partners in small law firms, and as soon as the word ‘growth’ is mentioned, they react, usually with alarm and a statement similar to: “No! I don’t want any more partners!” However, the meaning of growth is misunderstood. The true growth of any business is through an increase in profit.

Cut Costs or Improve Efficiency From a revenue perspective, simply increasing charge rates to improve the bottom line is not as easy as it sounds. Rates, whether fixed-fee or time-based, are controlled by powerful market forces. For most small practices, the need to offer affordable services constrains pricing. Most people find it difficult to pay legal fees, so you may have to cut costs or improve efficiency to increase your profits. Staff costs are the biggest expense and the only variable where changes can have impact. Your options are to either reduce staff or get existing staff to do more. An effective way to achieve either of these objectives is to improve your business’s efficiency by using the right technology. The rise of self checkins/check-outs at airports and supermarkets provides clear signposts for the future.

Intense competition has made technology cheaper than ever; assuming you have the right staff, investing in the right technology is the best way to increase efficiency - and profits. Some small law firms find it difficult to find suitable support staff - such as legal accountants, administrative assistants, and junior lawyers particularly those based outside of larger towns and cities. Possible solutions to this problem include: • Giving your staff the tools they need to do more work faster. • Delegating routine work to existing staff so that you can do the high-value work. • Reducing legal accounting costs by reengineering the way you do your matter accounting so you can use part-time bookkeepers.

9-Point Plan to Increase Profits 1. Organise your data into a single database. 2. Organise your template documents and matter documents. 3. Organise your communication documents. 4. Organise your Safe Custody contents. 5. Be disciplined about time recording. 6. Produce bills regularly for smaller amounts. 7. Collect what people owe. 8. Involve yourself in the change project. 9. Act today!

If you follow this plan, you will see your profits grow without having to employ extra staff. There are many reasons to do nothing: partnership difficulties, thoughts of retirement, being busy, general inertia, etc. Complaining is easier than doing. However, to grow the profitability of your firm while providing a better service to your clients, you must change something. Organising your practice by introducing software will allow you to fine-tune the balance between the work you have and the people you have working for you. But which software solution is the right one for your practice? One relatively quick and easy way to do this is to hire a team of experienced practice advisers who can help you make the right decisions for your firm, assist with the deployment and training, and provide the longterm support you need to enable you to concentrate on your clients - not on the technology. Richard Hugo-Hamman is the Executive Chairman of LEAP Legal Software. He has thought about the challenges facing small law firms for more than 25 years and has visited thousands of law firms on three continents. www.leap.co.uk.

Surrey Lawyer 23

Employment

Two modern dilemmas in the legal profession by Leilani Reader, LR Legal Recruitment Ltd.

For legal professionals looking to progress their career there are two big dilemmas to contend with… City vs Regional working The kudos of 'City Life' still undoubtedly remains extremely attractive to the young, ambitious law professional and working in 'the square mile' continues to hold a magnetic appeal. However, times have changed and it has become notably apparent the spotlight no longer just shines on these Corporate firms.... let's shed some light on this. Each week City life begins as an endless flow of Lawyers swarm into their glass towers, a sea of immaculately pressed suits amalgamating into one dark mass. Amongst a hoard of hungry, determined law professionals the chance for a moment on ‘centre stage' is almost as likely as seeing an eclipse. ‘Small fish in a big pond’ springs to mind....so Lawyers’ have to ask the question, ‘where do I best place myself to make my mark?’ Some City professionals have made the big decision of making an exit and are venturing into the regions (ironically these regional heavyweights are commonly Partner lead by ex-City Lawyers) and instantly there is a ray of hope to shine. One of the many questions that City Lawyers ask themselves is ‘what is the quality of work I will be handling moving from the City to the Regions?’ We recently had an opportunity to work with a strong Corporate Regional law firm who were having difficulty in recruiting a NQ-2-year Corporate Solicitor to join a partner. The firm wanted an ambitious high flyer to join

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the firm and was promising excellent quality of work and career progression. However, they were offering this with a £10k - £15k drop in salary and were not making many inroads into the recruitment campaign. It does also beg the question, are the regions prepared to invest in the “ambitious high flyer” or is this simply a sacrifice the lawyers need to take on the chin? Is the responsibility on both shoulders? In the end "Do you choose a dog eat dog City career?" .... albeit in a gorgeous glass tower, or does the draw of the heavyweights in leafy suburbs and provincial towns suddenly have magnetic appeal?

Career Progression vs Salary Hike Upon meeting a new candidate at LR legal recruitment, the choice between career progression with an innovative regional law firm versus a bigger salary is inevitably discussed. Of course candidates would like these two benefits to come in hand in hand but this is not always possible. What is the priority? Not many of us can afford to take a drop in salary nor do we consider moving roles for the same salary we are on. Having the foresight to objectively understand your 5-year plan is crucial when building a career yet many candidates get fixated on the here and now. We would like to think that faced with the dilemma of a solid start, steady career progress and a secure future or a large amount of money to take on a role with

Photo: Leilani Reader

the City and all the risks that this can bring - that the choice would become clear. However, taking a poll we came out as 50/50 as to what we would do! More recently within the agency we had a candidate who was offered a role with a very reputable law firm with career progression, excellent training and a reputation which would have certainly speeded up their career. Done deal we thought. But no! an offer of £10k more was put to the candidate and the prospects disappeared for a firm that could not compare simply in terms of money. Candidates we like to ask; would this be you or would you be able to resist the pound signs and look to the longer term benefits. You may not be there right now but who is to say that it won't happen in the next 6 months if you join a progressive firm for all the right reasons not just for the instant monetary hike! Patience and shrewdness as well as insight into your personal development are essential for law professionals to make a success of their career. n For more information please contact our office on 0208 464 2511 or email me at leilani@lrlegalrecruitment.co.uk www.lrlegalrecruitment.co.uk

Education

Surrey Law Society’s 2016 Conference Season starts this September As one of the South East’s leading CPD providers Surrey Law Society are always striving to bring the very best speakers and topics to our members to keep their knowledge up-to-date on hot topics, latest developments, changes to legislation and new case law. The ever-changing legal marketplace, including the introduction of quality standards, provides significant challenges for legal practitioners. Early Bird bookings now open*

PRIVATE CLIENT CONFERENCE at GLIVE, GUILDFORD Thursday 22nd September from 09:30 to 17:00 – 6 hours CPD 'Please note that this date may have to be changed due to speaker availability.'

Co-sponsored by Fiona Davies of St. James’s Place Wealth Management, Finders & Wilkins Kennedy LLP Our Private Client Conference offers practical sessions that help make the task a little easier and this year’s conference is no exception. Our speaker line-up includes John Thurston, Cate Searle, Leon Sartin, Tom Entwhistle and Caroline Bielanska, with more to confirm. Topics will cover hot topics in contentious probate, elderly care, pitfalls in drafting LPAs, Trusts, CGT and IHT, with practical information and latest case law.

CONVEYANCING & LAND LAW CONFERENCE at BROOKLANDS HOTEL, WEYBRIDGE Thursday 27th October from 09:30 to 17:00 – 6 hours CPD Sponsored by Index Property Information The Conveyancing & Land Law Conference will be taking a good, hard look at the property market and the impact changes are making on the legal profession. There will be plenty of practical guidance and information for all staff involved in the conveyancing process with presentations from some of the country’s leading speakers including Richard Snape, Peter Reekie and John Bunker. Topics include SDLT, Managing Risk, Land Registry changes, New Lease Drafting & Extensions. This is a ‘must-do’ event for 2016. Conference Fees: *Early Birds - if booked and paid before 30th June the fee is £156pp including VAT For all bookings received after 30th June the fee will be £180pp including VAT Fees include: - 6 hours SRA Accredited CPD Points - Delegate Pack & all course materials - Tea & coffee plus cookies & pastries throughout the day - Buffet lunch in the Restaurant To book your place email us now sueseakens@surreylawsociety.org.uk stating which Conference you wish to attend and we will do the rest. See you in the autumn, if not before! Sue Sue Seakens CEO, Surrey Law Society 01344 860830

Surrey Lawyer 25

Interview

“ TO BE A LAW OFFICER IS TO BE IN HELL ” SAID SIR PATRICK HASTINGS So what is the job of Attorney General like today? The Attorney General’s role goes back to at least 13th century, and probably much earlier if it had been possible to keep records because of the nature of the appointment. And it is a fascinating role for an MP lawyer to perform as the government’s “personal lawyer”… breaking the bad news to the cabinet!

Jeremy Wright QC MP, interviewed by Phillip Taylor MBE of Richmond Green Chambers. We have seen interesting occupiers of that office over the centuries and have given the name “Attorney General” to many different legal jurisdictions the world over where some notable names of history crop up (Bobby Kennedy to name just one). And I have met a few of them in over forty years in politics and the law, so has the role and the legal personality changed at all? “No” and “Yes”, in all probability. And so it was with some eager anticipation that I met the current Attorney, Jeremy Wright, recently in his office in the Commons. For historic purposes, the post is stated as emerging around 1243, when a professional lawyer (of course he was, and I hope he got paid on time) was hired to represent the monarch’s interests in court. It has developed into a political and a demanding - role with Patrick Hastings writing: ’to be a law officer is to be in hell’. Well I did not see much of that, the brimstone and the very hot temperature that is, when I entered the AG’s office tucked behind the central lobby. Jeremy is a very modern attorney general and we had met before during his time as Prisons Minister in the last Parliament so he comes to us with some previous. Well, is he “in Hell”? ‘Far from it’, says Wright, when we discuss what he does and his future plans “in the hot seat” after 26 Surrey Lawyer

his steep learning curve. He clearly relishes the role and its heavy workload with that advocate’s gloss we would expect, and he has the air of pleasantness and “unstuffability” which is possibly why the PM appointed him at such a young age! Wright has been in post for around 18 months with his deputy, Robert Buckland QC MP, the solicitor general. Both are young (Wright is one of the youngest attorneys since the 1600s), from the provincial Bar, and began practice in the criminal courts on circuit. It is law officer work that is fascinating for any barrister. The attorney general is officially the leader of the Bar of England and Wales and presides over its annual meeting when time permits. The attorney and the solicitor general attend Bar Council meetings and events, such as the Bar Conference regularly. Both officers review all the unduly lenient sentence cases, some 400 a year, a ‘relatively steady number’, where about 80 per cent of sentences are changed. A recent proposed reform from the attorney general is beginning, as a pilot, for a broader cadre of counsel to pursue cases of undue sentence leniency, rather than just leaving proceedings in the hands of treasury counsel. And it seems this proposal has been met with approval. I suggested that this might be a taste of things to come, leading to a ‘closer working relationship’ with the advocate general for Scotland, Lord Keen of Elie QC. Another area is where the attorney general ‘straddles’ departments, offering legal advice to ministerial colleagues

based on their requests to him - advice that is - ‘given in a way which is comprehensive and more likely to be accepted’ coming from his department. The days where individual departments now speak to each other has arrived, certainly as far as legal advice is concerned, after years of little liaison. On hard cases, Wright’s view is that where there are difficulties he ‘will never compromise on the integrity of the advice given’, which illustrates very much what he sees as the independence of his role within government: ‘It is the need to know, and not what you want to hear.’ Much the same, then, as the approach taken by a practising barrister, only your client is the government. The attorney general does not attend court as often as some of his predecessors did, although the solicitor general does appear regularly. So, what of today’s advocacy standards? The law officer team, for that is what they are, are very much a modern product of the development of a high-quality Bar for England and Wales. Both officers have regular talks with the judiciary and the profession ‘to stand up for the interests of the client’, retaining the ‘cab rank’ principle, something Wright says ‘we must be proud of at all times, especially was the Young Bar going through tough times as we maintain the highest standards of advocacy’. Lawyers should be in no doubt that there is a reforming wind blowing through our corridors at the moment for this parliament - and it is quickening its pace. n

Finance

The Supreme Court on Break Clauses and Implied Terms by Kester Lees, Barrister, Falcon Chambers

Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited [2015] UKSC 72 is set to be the leading authority on (i) the law of implied terms, (ii) the operation of break clauses, and (iii) apportionment of rent payable in advance, for some time to come. The Facts Four commercial leases had been granted for a fixed term expiring on 2 February 2018. The rent was payable in advance on the usual quarter days. The leases contained identical break clauses which were exercisable on 24 January 2012, subject to two conditions only: (i) the payment of a break premium (equivalent to one year’s rent) and the tenant being up to date on the rent as at the break date. The tenant paid the break premium after the December quarter date and had, therefore, paid the December quarter in full. After the leases were successfully terminated the tenant sough to recover the ‘overpayment’ of the December quarter rent, for the period falling after the break date, by virtue of an implied term. Therefore, the key issue before the Supreme Court was whether the tenant could recover from the landlords the apportioned rent in respect of the period after the break date - ie from 24 January to 24 March 2012. The court was also asked to overrule the longstanding decision of Ellis v Rowbotham [1900] 1 QB 740, in which the Court of Appeal held that the Apportionment Act 1870 did not apply to rent payable in advance.

The Decision on Implied Terms The Supreme Court rejected the dilution of the strict test of necessity for an implied term. Lord Hoffman’s vcontrary view, expressed in the Priviy Council in Attorney General of Belize and others v Belize Telecom Ltd [2009] 1 W.L.R. 1988, was relegated to the status of an ‘inspired discussion rather than authoritative guidance on the law of implied terms’. The test remains that of strict necessity for business efficacy. In summary, the Supreme Court made the following observations on the law of the implication of terms: a. The process of implication is distinct from the process of construction. It is only after the question of construction has been considered that the question of implication can arise.

b. There has been no dilution of the requirements which have to be satisfied before a term will be implied; namely, that it be strictly necessary for business efficacy. c. It is not enough that the parties would have agreed to it had it been suggested to them. That is a necessary but insufficient ground for implying a term. d. The test is not one of absolute necessity but whether, without the term, the contract would lack commercial or practical coherence. e. The Supreme Court found that the settled law on apportionment upon forfeiture as at the date of the grant was equally applicable to apportionment upon the exercise of a break clause. That settled law was taken to have informed the reasonable man’s view of the contract. f. A term will not be implied where it ‘lies uneasily’ with the express terms in the contract (approving Bingham LJ in the earlier case The APJ Priti [1987] 2 Lloyd’s Rep 37). Consequently, in M&S, the Supreme Court rejected the implied term as not being sufficiently necessary. In particular, the court had regard to the fact that both parties were large commercial entities legally represented when drafting the instruments and that the leases did provide for repayment by the landlord in other circumstances (had the break not been exercised).

The Decision on Apportionment of Rent On the issue of apportionment of rent payable in advance, the Supreme Court confirmed the status quo:

Photo: Kester Lees c. Had the Supreme Court considered that the decision in Ellis was definitely incorrect then it would have been appropriate to overrule the decision despite its longevity. However, if the Supreme Court had been merely doubtful of the decision it would be appropriate to uphold the earlier decision given its longevity.

Conclusion: lessons to be learned… No doubt tenants’ conveyancers will continue to seek to include express apportionment provisions and/or clauses for the repayment of any overpaid rent upon the exercise of a break. Such a precautious approach is clearly justified following this decision. Without such a clear and unambiguous term there can be no such apportionment of rent payable in advance. There are other lessons which may have a wider impact. In particular, the implication of terms will be far harder to rely on in future; the Supreme Court’s shift in emphasis is impossible to mistake. A final point to note; Lord Neuberger PSC suggested that had the premium been paid before the quarter date the rent could be apportioned. That may give some tenants hope prospectively. However, those comments must be treated with some caution as (i) they were strictly obiter, (ii) would only work where there were no other break conditions (such as vacant possession), and (iii) it would be a brave tenant who would risk the ongoing liability of the lease continuing to put this argument to the test. Only time will tell…

a. The decision in Ellis was correct. Rent payable in advance was not apportionable under The Apportionment Act 1870. b. Therefore, rent payable in advance could only ever be apportionable as a result of a clear and unambiguous clause in the contract. Surrey Lawyer 27

Legacies

Canine Care Card Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved fourlegged 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. 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 new homes. Two of these dogs were duo Telia and Freddie who arrived at Dogs Trust Darlington aged eightyears-old after their owner had sadly passed away. The loveable pair were firm favourites with staff and volunteers, both enjoying long walks and playing in the water whenever they got a chance. Telia had been diagnosed with arthritis prior to her arrival at Dogs Trust and was able to get all the care she needed while she awaited her forever home. Dogs Trust never puts down a healthy dog, and works hard to match every dog with a responsible, loving home. Happily, Telia and Freddie were soon settling in with a loving new family after being cared for at Dogs Trust Darlington.

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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 Telia, Freddie and many dogs like them 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.”

Legacies

Planning for the future can help make a real difference It’s hard to know what the future might bring, but one thing that is for certain is the number of people living with breast cancer is expected to double by 2030. This is where the challenge lies for The Haven; while the good news is that survival rates are improving, it also means that more people will be living with the disease and its affects for longer.

SBA The Solicitors’ Charity is currently recruiting Area Representative volunteers in London and is particularly keen to increase its coverage of West, South-West and East London. This is an opportunity for you to help fellow solicitors in times of need. Volunteers play an important role within SBA’s work by visiting people who are facing personal financial difficulties in their homes. They assist with the completion of our application form and verify the relevant underlying documentary evidence on our behalf. By volunteering as an Area Representative, you can do much to make positive changes to those suffering personal financial hardship, but there are also advantages to you. Here are some of them:

Therefore in the years to come, many more people will need us. We’re the only breast cancer charity providing free, one-to one, tailored care and support to anyone affected by breast cancer. The programme offers a wide range of complimentary therapies, counselling and nutrition advice. For thousands of people we are a lifeline, but as the rate of breast cancer is set to double, we need to double our efforts. This is why gifts in Wills play a vital part in helping us plan for the future; knowing that we can rely on future funds allows us to confidently embark on our plans to reach more people and invest in expanding our services in local communities. We want to open more centres across the country so we can reach the next generation facing this terrible disease. It costs £1000 to provide The Haven programme for each visitor. We look after thousands of people each year and without the voluntary donations we receive, we could simply not deliver our promise to be there for those who need us the most.

•

Sense of achievement You can witness lives improving directly from the benefits of your involvement

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Add experience on your CV Studies carried out by TimeBank show 73% of employers hire people with a history of volunteering

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Integrate into a wider community of solicitors Become better known

Each Area Representative has their own reasons for volunteering but, whatever their motivation, they have two things in common: they all understand the pressures of life in the law and they want to make a difference by helping those who turn to SBA in times of need.

Ideal candidates Legacies will help us to create a future where everyone with breast cancer has a Haven. If you would like to find out more about leaving a gift in your Will, visit thehaven.org.uk/giftinwill We are very keen to work with local solicitors to offer a promotional Will writing week for our supporters. If you would like to raise the profile of your company in South West London, Surrey and Hampshire, build up relationships with new clients and raise money to support The Haven, please get in touch.

laura.hignett@thehaven.org.uk or go online: thehaven.org.uk

Good communication and people skills are essential. Volunteers need to be able to listen, empathise and avoid all appearance of being judgemental. An understanding and commitment to confidentially is fundamental. Though flexibility in being able to undertake a visit is often needed, Area Representatives always retain the option to decline a case if it is not compatible with other demands on their time. Volunteers typically cover three to four cases per year and each of these involves roughly four hours work. All reasonable travel expenses are reimbursed. Find out more about how SBA supports solicitors in times of crisis. To discuss opportunities for volunteering as an SBA Area Representative, please contact Sue or Dervilla via the details below. We'd be delighted to hear from you. E: bensec@sba.org.uk T: 020 8675 6440

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Management Matters

Is Buy to Let still as attractive? From APRIL buying a house to let or as a holiday bolt-hole will become thousands of pounds more expensive. A tax attack aimed at landlords will force those who want to own more than one residential house to pay an extra 3 percentage points in stamp duty. The effects are eye-watering. The levy will increase the cost of a £250,000 buy-tolet purchase by £7,500. Someone buying a second home for £450,000 will have to fork out £13,500 more in stamp duty. That's enough to potentially put off even seasoned landlords - which is precisely the idea behind the tax grab (other than boosting the Government's coffers). George Osborne, the Chancellor, wants to make it harder for investors to outbid first-time buyers. Under the draft rules the new rates will apply for completions on or after 1st April 2016 unless exchange occurred on or before 25th November 2015. Be forewarned. While the aim of freeing up properties, particularly in London and the South, for young people sounds like a worthy cause, there are nasty sideeffects. The first, most obvious blow will whack those hoping to fund their retirements with property returns - a popular move with interest rates so low. Costs will ratchet up significantly. If you were planning to buy this year, it's worth sitting down and re-doing those sums to make sure it still adds up. Otherwise get a move on and complete contracts before the 1st April 2016 (as it currently stands); this will spare you the additional 3 per cent. Over the Christmas break, the Government also sneaked out plans to close some loopholes in the new rules. Married couples will be treated as a single "unit" when deciding how many houses a buyer owns. It won't be possible to put the family home in one name and then buy a second home under a spouse's name without incurring the extra tax. There has been talk in some newspapers about it being a "tax on marriage". That's true to a degree - an unmarried couple won't necessarily be treated as a unit. But those who already own one house between them will only escape the tax if the other buys with the intention of using the new place as their main residence. The result: an unmarried couple that lives together, and plans to continue to do so, will pay the extra 3 per cent if they buy a second property. Parents will worry about the implications if they buy for their children. There is bad news here, too. The proposed rules state that unless the buyer is "replacing" a main residence, the higher rates of stamp duty will apply. So if Mr X, who already owns his own main residence, buys a house for his daughter, Miss X, puts the property in joint names so as to borrow more, the full tax blow will apply. One get-out trick is to act as a guarantor on the mortgage, rather than owning it jointly. But such arrangements are difficult to arrange without a specialist broker. Giving money for a deposit is absolutely fine; it's about who is named on the title deeds. Another loophole that will be closed is where landlords try to circumvent the rules by purchasing properties through a registered company. The first property, a company or investment scheme buys will be subject to the full "second home" tax. Finally, those who buy a new main residence before selling their current one will be dragged into the tax net. They will have 18 months to sell the first property and claim back the extra tax. The main test of whether you pay is the number of properties owned at the end of the day of purchase. If the answer is 'more than one' it's highly likely you'll be hit by the additional tax. Avoiding it will be tricky. Part of the crackdown includes a threat to monitor where buyers spend most of their time. 30 Surrey Lawyer

This will include checking where children go to school and where you are registered to vote. So if you're thinking about buying a holiday home, helping children or adding a rental property to your investments in the near future, there may be a completely different way to achieve what you're aiming for. A bit of advice before you take the plunge might save you thousands of pounds. Your property may be repossessed if you do not keep up repayments on your mortgage. There is normally a fee for advising on and/or arranging a mortgage, this is typically £495. The Financial Conduct Authority does not regulate commercial and some forms of buy to let mortgages. The Financial Conduct Authority does not regulate some forms of tax advice.

Steve Smith - Mortgage Consultant S4 Financial Limited - Contact: 07896 025124 Steven Vallery - Business Development Director S4 Financial Limited - Contact: 01276 34932

Management Matters

SOLICITOR AND CLIENT COSTS DISPUTES THE JOURNEY Most Solicitors are reluctant to embark on the painful process of dealing with their own Clients about their fees and in most cases will never escalate a dispute into the seemingly troubled waters of detailed assessment under the Solicitors’ Act 1974. Similarly most Clients are reluctant to embark upon the uncertainties of a Solicitors’ Act and CPR Part 46.9 detailed assessment and, in most cases, disputes arise out of communication issues and failure to control the clients’ expectations with regard to costs. Experience dictates that once the process of detailed assessment is set in motion, the uncertainties to both parties to the dispute can prove to be very expensive and with no clear winner or loser. In some entrenched cases, it is not unusual to end up with costs of assessment far exceeding the original amount in dispute. The process is designed to assess the reasonableness of the claim for costs without the benefit of hindsight and to allow costs which have been incurred with the express or implied approval of the client. In this regard file management is crucial to any successful outcome and cannot be emphasised more strongly, especially the need to keep the client fully appraised with costs estimates, increased periodic hourly rates and renewed risk assessments as the case develops. Any shortcoming in file management will be quickly discovered and the repercussions will bubble to the surface with devastating effect. The importance of file management and compliance with the Solicitors Code of Conduct is absolutely essential and the Code is designed to minimise disputes and ensure both parties fully understand the basis of the retainer, costs estimates and Client’s expectations. Even with the best file management systems, sometimes disputes arise as the Solicitor fails to appreciate the Client’s needs or even to appreciate whether they are asking their Client for monies on account, issuing an interim statute bill for a specified period or in most circumstances the expectations are a combination of the two, being an interim statute invoice for the historic costs together with a request for a further payment on account of costs for future work. It is important to recognise the difference between the two bases as a danger lurks in the 1974 Act, whereby either an interim statute bill which fails to comply with the provision of the 1974 Act, or mistakenly a request for on account payment forms the subject of a recovery action - the action will most likely be a nullity. Compliance includes but is not limited to:a) The invoice/letter enclosing the invoice must be signed by an appropriate officer (Section 69 (2A). b) The invoice is delivered to the party charged, personally, by post or left at the place of business, dwelling house or last known place or abode, or delivered to the party by means of an electronic communication network. c) The invoice contains sufficient narrative to be statute compliant. d) The invoice contains details and the identity of the fee earners involved with an indication of time spent (computer time recording entries with brief description). e) The invoice shows separately the claim for disbursements (paid/unpaid). f) The invoice must contain details of the Solicitors VAT registration number.

g) The invoice gives credit for sums held on account of costs and h) The invoice must provide details of the client’s rights to have the invoice assessed by the court. Section 69(a) (i) precludes any action from being brought to recover sums due to the Solicitor before the expiration of one month from the date in which the bill was delivered in accordance with the requirements mentioned in subsection (2). An action may be brought in the County Court or in the High Court. Great care has to be taken to distinguish between debt-recovery of any unpaid bill as opposed to a client exercising their rights under the 1974 Act. The client will in the alternative file a defence either seeking a common law assessment or seeking to set off a claim for damages for professional negligence. The third option, which is riddled with complications, is for the client to seek extra judicial remedy by making a complaint to the Legal Ombudsman.

after the assessment and by reference to the reductions, that is to say if the invoice(s) are reduced by 20% or more then the solicitor will have to pay the costs, otherwise the liability is payable by the client, which may have enforcement issues. In addition and subject to the terms of the retainer in most cases the Solicitor is entitled to contractual interest on any outstanding fees up to the date of the assessment, followed by Judgment interest thereafter until payment is made. The recessionary climate coupled with the tightening web of statutory regulations will most certainly increase disputes over fees, and for these reasons alone, file management as well as adequate costs estimates and regular interim billing will help to reduce the scope of expensive litigation.

James Scozzi Managing Partner Elite Law Solicitors The Solicitors Who Specialise in Costs

Having survived the initial skirmishes, the process itself is in a prescribed format and the Solicitor will initially have to bear the costs of preparing the itemised breakdown in support of the delivered invoice(s) and in most cases also have to pay the court fees. In the event the client seeks to challenge the costs, which are governed by time restrictions, the court fees will initially be paid by the client. The task of preparing the itemised breakdown is usually outsourced to a third party (Costs Lawyers) and great care has to be taken to ensure the appropriate level of expertise is utilised. One common oversight is the fundamental differences between Solicitor/Own Client assessments as opposed other Inter-Partes assessments. From the client’s perspective, this will, in most cases, be the first opportunity the Client has to set out in writing the nature of the dispute, (by way of Points of Dispute) with a right to respond if so required (by way of Replies). The costs of the adversarial process are sometimes prohibitive and may include giving evidence as well as dealing with regulatory compliance. The cost of the process is determined

Surrey Lawyer 31

Management Matters

Test your need to grow and merge by PETER SCOTT CONSULTING

The momentum for the growth of law firms across the spectrum of the profession is client driven - and it is becoming less and less relevant how lawyers see themselves.

lients of law firms perceive that many are lacking sufficient resources to compete with their larger and more developed competitors. Moreover, feedback from clients in response to surveys often reveals there to be a clear distinction between the kinds of work they would give to a law firm, and what would go elsewhere. Reasons for using another firm often include the following: • specialist expertise or knowledge not available at the firm; • larger deals go elsewhere where greater resources are available than are perceived to be available at the firm; • The ‘IBM’ factor, particularly where outside stakeholders are involved and the reputation of a ‘bigger’ name is needed for reassurance Feedback such as this highlights the ability of larger firms to develop greater resource and to win work and, as a result gain a competitive advantage over firms with less resource. However, even some of the very largest law firms recognise their need to develop greater resources if they are to remain competitive in their markets and this is driving merger activity both in the UK and internationally between some of the largest players. The issue of resource is a particular problem for firms in what might be called the ‘middle market’ which are often too large to be niche and too small to be full service (can any law firm be truly full service?). Such firms cannot be all things to all men. Being focused on a limited number of areas of work or sectors at which they are good and for which they are known, is likely to be a more sensible and successful way forward in the longer term.

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However, in today’s competitive legal markets, having sufficient breadth and in particular sufficient depth of quality expertise, requires building teams in focused areas. To provide that focussed resource of expertise (i.e. people) requires strong financial resource and that financial resource needs to be invested in those areas where it can be most successfully and profitably utilised. Law firms also now require a minimum level of support infrastructure to be able to operate efficiently, profitably and compliantly. Too many firms are still unable (or unwilling) to spend what is required to meet this minimum level of infrastructure in areas such as finance, business development, knowledge management, HR, technology, risk and compliance and efficient premises of a required standard in strategic locations. As a result of such resourcing needs, it is becoming increasingly common for a law firm, having been through a strategic planning process from which it has developed a realistic plan, to then conclude that it cannot achieve such a plan on its own. The investment required to take a firm to the levels of competitiveness required are likely to be beyond the financial resources to which many partners are willing to commit. Organic growth, while an attractive option for some, can devour large amounts of cash and depress the profits of a firm for a long period of time before the ‘investments’ begin to provide payback, which can never guaranteed. There needs to be a balance between ‘jam tomorrow’ and sustainable profits going forward at a level which ensures a firm is competitive, particularly in the recruitment market. This balance is difficult to achieve when there is a heavy investment programme in new

people and where the financial resources of a firm are small and are being stretched. Organic growth, on its own, is therefore unlikely to be an answer to many firms’ needs. How can consolidation (merger) help to provide the growth needed by law firms? Merger is not a strategy - it is a means to an end, which is to become more competitive and in the process, more profitable on a sustainable basis. Most often a merger will aim to provide a more viable platform for future growth to enable a firm to achieve its strategic goals. Merger is also NOT about size for the sake of size - although it is about what size can bring - the resource needed to help a firm become more competitive. And there is another problem, which cannot be ignored by small and mid sized firms - succession. When faced with impending retirements, too many law firms put their heads in the sand and do not make plans for the future well - being of everyone in their firms. Ill thought through or forced mergers on unattractive terms are often the result. Providing for succession is about planning and well planned mergers can provide a solution to many succession problems. Set out below are some questions which may help you to better understand whether you have a need to grow your firm and if so to decide whether some form of merger may be an approach your firm should be considering. If you answer ‘Yes’ to any of the questions, you may need to consider plans for growing your firm and how such growth can be achieved, whether it be by merger or by other means. n

Management Matters

NEED TO GROW / MERGE? YES NO Yes

Yes

If so, is a lack of financial or people resource preventing you from filling those gaps in your service offering?

Yes

Has a client ever used a competitor firm in preference to you because you were not considered by the client to have the necessary knowledge or expertise?

Yes

Have you failed to win work from clients which work was instead won by firms which are larger and more developed than your firm?

Yes

Do you have a clear, achievable and fully resourced plan to plug any gaps in your ability to provide clients with what they want from you, to ensure continuing client satisfaction and loyalty?

Yes

Are there potentially any profitable markets, areas of work or sectors which you have concluded you will not be able to access on your own because of lack of resource?

Yes

Are you on a client’s panel of law firms which is regularly reviewed and where that client represents more than 5% of your turnover?

Yes

Are you finding it difficult to ‘stand out from the crowd’ and create meaningful differentiation from your competitors?

Yes

If you currently do not have one, would it be desirable to have a full time managing partner or CEO able to successfully lead your firm and build its competitiveness and financial success?

Yes

Are there any changes necessary in your firm which currently cannot be implemented because of your inability to have access to sufficient resources or for any other reasons?

Yes

Have you lost valued clients and good people to firms which are larger and more developed than your firm? Have clients or referrers told you that there are gaps in your service offering?

Do you have clients who individually each represents more than 5% of your turnover?

Have you concluded that you will not be able to achieve your realistic strategic goals on your own? Are you unable to improve profitability because your firm lacks economies of scale and efficient use of people or other resources? Have you been unable to retain or to recruit people you really wanted? Is succession an issue for you now, or will it be an issue for your firm in the next 5 years? Are you able to afford to fully resource your support infrastructure needs, including: Yes

Yes

- Knowledge management

- Business development Yes

- Locations

- Risk and compliance Yes

- HR

Yes

- Technology

- Finance

- Management

Surrey Lawyer 33

Book Reviews

THE LAW OF MISSTATEMENTS 50 Years on from Hedley Byrne and Heller Edited by Kit Barker, Ross Grantham and

Warren Swain HART PUBLISHING ISBN: 978 1 84946 863 3 (hardback) www.hartpub.com.uk

COMPENSATION CULTURE? READ THIS CRITICAL EXAMINATION OF A WELL-KNOWN AND PIVOTAL CASE An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Having noted the subtitle of this book, you know, if you’re a lawyer what it’s about. As co-author Kit Barker explains, ‘there are few twentieth century tort cases as well known, or as often cited in commonwealth jurisdictions as Hedley Byrne & Co Ltd v Heller & Partners Ltd.’ adding that ‘it has been construed as a case about liability for careless words.’ Apart from Donoghue and Stevenson there are few tort cases in the twentieth century that are as well known. A House of Lords landmark decision, the case has certainly excited comment and controversy, no less so now, in its fiftieth anniversary year.

Recently launched by Hart Publishing, this book both commemorates and celebrates that decision as well as offering up a rich variety of commentary on it from no less than fourteen contributors mainly from universities in Australia and New Zealand as well as the United Kingdom, but representing five of the most important jurisdictions in which the case applies, namely the United Kingdom, the United States, New Zealand, Canada and Australia. The law of misstatements in each of the five jurisdictions is examined in depth and from various perspectives with the focus on its meaning, its influence and its basic concepts; for example, ‘voluntary assumptions of responsibility’ and ‘reliance.’ To say that Hedley Byrne has generated massive repercussions as well as comment over the past fifty years is the understatement of this century as well as the last. For example, having elevated the importance of the concept of ‘duty of care’ (no bad thing, actually) it has variously been identified rightly or wrongly, as the root cause of the compensation culture. As this fifty year old case continues to influence and impact upon modern law, private law in particular, this book provides a cross-section of contemporary viewpoints

and therefore a fulcrum for contemporary discussion on the incredibly wide variety of issues emanating from liabilities for misstatement. Researchers will of course, appreciate the wealth of references contained in the extensive footnoting and also in the twentyfive of so pages of tables of cases and of legislation from the relevant jurisdictions. Also note that the Appendix contains the transcript of the judgment of McNair J. dated 20th December 1960, which makes this book particularly handy for private lawyers. If you need reminding of the details of the case, this section ideally, should be read first. The publication date is cited as at January 2015.

BILLS OF LADING Second Edition by Richard Aikens, Richard Lord and

Michael Bools LLOYDS SHIPPING LAW LIBRARY Informa Law from Routledge ISBN:

978 0 41574 581 9 (hardback) 978 1 31575 087 3 (ebook)

www.informa.com

ARE BILLS OF LADING LIKE ELEPHANTS? THIS ESTABLISHED TITLE FROM LLOYD’S SHIPPING LIBRARY EXPLAINS ALL - NOW IN A NEW SECOND EDITION An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Why is a bill of lading like an elephant? If you are a shipping lawyer, you should read this book and find out. Far from the straightforward and routine documents they’re assumed to be, bills of lading can be fraught with legal complications with many a legal pitfall in store for the legally complacent or unaware. This new edition of ‘Bills of Lading’ - the first since the original edition came out in 2006 will be welcomed no doubt, by fleets of shipping lawyers. Accessible and easy to read, the book presents a minutely analytical and exhaustive study of just about every conceivable aspect pertaining to bills of lading, steering the reader though all the characteristic and distinctive features of bills of lading as well as their inherent and

34 Surrey Lawyer

potential contradictions. But what exactly is a bill of lading? In chapter two, the three expert authors concede that it is something like an elephant: ‘generally easier to recognize than define.’ One may take this to mean that you know one when you see one, but it is hellishly difficult to describe. Nevertheless, this chapter in particular tackles the task of arriving at a satisfactory definition of bills of lading, classifying these documents into different ‘species’ of bill. The challenge here is to determine whether a document is really a bill of lading or not. Certain distinctions are legally significant, say the authors, ‘as they affect the legal rights and legal obligations attached to the bill.’ Published by Informa from Routledge, this edition of over 600 pages in length, is one of the latest titles to join Lloyd’s Shipping Law Library. It reflects any number of developments that have emerged in this area of law over the last nine, almost ten years. The authors point out, however, that in this interval, there has been ‘limited drama on the substantive front,’ with the greatest changes occurring not on substantive issues, but in ancillary and procedural ones, which the authors have dealt with mainly in a rewritten Chapter Fourteen. The sections on such issues as seaworthiness and the question of frustration of contract of carriage have been expanded - and in response to the movement and direction of global trade reference is made to significant decisions

from Singapore, Hong Kong, Australia, New Zealand and Canada. The book also contains brief but apposite comments on the influence of new technologies, including web portals for booking cargo. The authors are of the opinion that ‘theoretically, difficult questions may arise as to which click of whose mouse results in a binding contract, but such issues are unlikely to be of much practical significance.’ The authors do comment in the preface, however, that ‘E-commerce does not resolve the legal issues associated with bills of lading, but it may resolve many of the practical and factual ones and might be thought to augur an overall reduction in the level of disputes.’ International lawyers, especially those advising on marine law, or indeed any professional concerned with minimizing the ‘elephantine’ potential for risk and error inherent in bills of lading should make sure they buy this book now. It is also available as an E-book. The publication date is cited as at 2016.