Spring Issue 2017
SurreyLawyer TOMMY WHITE WK LAW continues to grow (see Page 12)
Inside this issue:
■ Conveyancing Focus ■ Technology ■ Cyber Security ■ Legacy
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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
ADVERTISING AND FEATURES EDITOR
4
List of Officers
5
President’s Jottings
7
CEO Report Local Issues
8 -13
Local News Young Lawyers
14
Anna Woodhams
A Young Surrey Lawyers update from the Junior Lawyers Division Employment
STUDIO MANAGER
15
John Barry
Employment Tribunal Decisions- now public! Articles
ACCOUNTS Joanne Casey
16
MEDIA No. 1514
Death and Taxes - the two certanties of life
17
Article for Surrey Lawyer- Keith Biggs
18-19
My top ten tips for improving financial performance in 2017
PUBLISHED March 2017 © The Surrey Law Society - Benham Publishing
Events 20
SLS Events Diary for 2017
© 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.
22 23 24
Conveyancing Focus CRISIS, WHAT CRISIS? Ten considerations when starting your own law firm RETAIL MARKET OPENING
Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.
25
Finance Is financial services regulation in your blind spot?
LEGAL NOTICE
Technology
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.
26
Digital Transformation and the Workplace
27
BOURNEMOUTH IN YOUR POCKET Event Management
28
YOUR ADVENTURE BEGINS... Cyber Security
29
FIGHTING BACK AGAINST THE FRIDAY FRAUDSTERS Legacy
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: Tommy White, Wilkins Kennedy Law.
Copy Deadlines Summer 2017 Issue Autumn 2017 Issue Winter 2018 Issue
5th June 4th September 5th December
30
Canine Care Card Probate
31
Ilot v Mitson The role of insurance. Book Review
33
COMPARATIVE COMPETITION LAW BEWIGGED AND BEWILDERED?
34
RESEARCH HANDBOOK ON EU LABOUR LAW CONTRACT FORMATION
Anyone wishing to advertise in Surrey Lawyer please contact Anna Woodhams before copy deadline. Email: Tel:
anna@benhampublishing.com 0151 236 4141
Anyone wishing to submit editorial for publication in Surrey Lawyer please contact Sue Seakens, before copy deadline. Email: Tel:
sueseakens@surreylawsociety.org.uk 01344 860830
SurreyLawyer 3
Officers
KEY OFFICERS
COMMITTEE MEMBERS
PRESIDENT
DANIEL CHURCH
MARK GOUGH
TWM Solicitors LLP.
Solicitor
65 Woodbridge Road, Guildford GU1 4RD
22 Woodlands Road, Little Bookham,
DX 2408 Guildford 1
Surrey KT23 4HF
Tel: 01483 752700
Tel: 01372 230786
Fax: 01483 752899
Email: mark@markgoughlaw.com
Email: daniel.church@twmsolicitors.com
VICE PRESIDENT
MAREK BEDNARCZYK
JAMES SCOZZI
Hart Brown
1 Fetter Lane
Resolution House, Riverview,
London EC4A 1BR
Walnut Tree Close, Guildford, GU1 4UX
DX: 14 London Chancery Lane
DX 2403 Guildford 1
Tel: 020 3440 5506
Tel: 01483 887704
Fax: 01923 219416
Fax: 01483 887758
Email: jscozzi@elitelawsolicitors.co.uk
Email: msb@hartbrown.co.uk
DEPUTY VICE PRESIDENT
WIN CUMMINS
VICTORIA CLARKE
18 Station Approach, Virginia Water GU25 4DW
Watson Thomas Solicitors
DX 94652 Virginia Water MARALYN HUTCHISON
Fleet GU51 3PE
Kagan Moss & Co
Tel: 01252 622422
22 The Causeway
Email: vclarke@watson-thomas.co.uk
Teddington TW11 0HF Tel: 020 8977 6633 Fax: 020 8977 0183
HON SECRETARY
Email: maralyn.hutchinson@kaganmoss.co.uk
KIERAN BOWE Russell-Cooke Solicitors
GLORIA MCDERMOTT
Bishops Palace House, Kingston Bridge,
18 Station Approach, Virginia Water GU25 4DW
Kingston upon Thames, Surrey, KT1 1QN
DX 94652 Virginia Water
DX 31546 Kingston upon Thames
Email: gloria.mcdermott@virginmedia.com
Tel: 020 8541 2041 Fax: 020 8541 2009
JULIE ROWE
Email: kieran.bowe@russell-cooke.co.uk
Russell-Cooke Solicitors Bishops Palace House, Kingston Bridge, Kingston upon Thames, Surrey, KT1 1QN
HON TREASURER
DX 31546 Kingston upon Thames
NICK BALL
Tel: 020 8541 2023
Howell Jones Solicitors
Email: Julie.Rowe@russell-cooke.co.uk
75 Surbiton Road, Kingston upon Thames, Surrey, KT1 2AF
IAN WILKINSON
DX: 57715 Surbiton
The Castle Partnership
JOHN PERRY Palmers Solicitors 89-91 Clarence Street Kingston upon Thames, KT1 1QY DX 31524 Kingston upon Thames Tel: 020 8549 7444 Fax: 020 8547 2117 Email: john.perry@palmerssolicitors.co.uk CHIEF EXECUTIVE & MAGAZINE EDITOR Sue Seakens Surrey Law Society 18 Station Approach, Virginia Water GU25 4DW Web: www.surreylawsociety.org.uk DX 94652 Virginia Water Tel: 01344 860830 Fax: 01344 428511 Email: sueseakens@surreylawsociety.org.uk
SUB COMMITTEES QUO VADIS (Strategic Planning) Daniel Church Nick Ball James Scozzi (Chair) Marek Bednarczyk
Bryslan House Upper Street
LAW SOCIETY COUNCIL MEMBERS SUSHILA ABRAHAM S Abraham Solicitors 290A Ewell Road, Surbiton KT6 7AQ Tel: 020 8390 0044 Email: office@sabrahamsolicitors.co.uk
Tel (Office): 020 8549 5186
2 Wey Court, Mary Road, Guildford,
Tel (Fax): 020 8549 3383
Surrey GU1 4QU
Email: nick.ball@howell-jones.com
Tel: 01483 300905 Email: ian@castlepartnership.co.uk
CONVEYANCING & LAND LAW Win Cummins (Chair) Gary Score* Maralyn Hutchinson Matthew Truelove* Ken Seakens* FINANCIAL Nick Ball (Chair) Kieran Bowe James Scozzi Ken Seakens* SOCIAL Daniel Church (Chair) Gloria McDermott John Perry* Julie Rowe Ken Seakens* *Non-Committee Member.
YOUNG SURREY LAWYERS Madeleine Gooding (Chair) Imogen Heywood Jessica Morton Will De Fazio-Saunders Alexander Bishop Victoria Clarke Email: youngsurreylawyers@hotmail.com Twitter: @YSL_Live LinkedIn: linkedin.com/groups/4515609
membership details Annual Subscriptions:
£98 per person, per year.
Corporate Subscriptions:
(20+ fee earners) £1,850 per year
Solicitor
(not in private practice) £60
Solicitor
(not practising) £35
Honorary Membership:
free
Associate Membership:
free - no voting rights
4 SurreyLawyer
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 2017 ‘Good Artists Copy; Great Artists Steal’ So I make no apologies for stealing this from Monidipa Fouzder’s piece in the Gazette: “Vulnerable people - those living with a disability, as lone parents or on less than £15,000 a year - are more likely to experience multiple legal problems than others. The findings, published on Friday 3 March, point to a crisis in access to justice following legal aid reforms.”
A
ccess to Justice sits high on the agenda for my presidential year. I guess it is my long involvement with law centres and pro bono advice that keeps the subject in sharp focus. That and the fact that I am very proud to be a member of a profession that does so much to help those in need but can make no apologies to those outside our profession for the fact that the supply of pro bono assistance only goes so far. The truth of that fact is that whilst I believe that pretty much all lawyers give pro bono advice in one way or another, undertaking pro bono litigation is an enormous commitment for a lawyer. If you are a non-contentious lawyer, then, in truth you are probably going to say, quite rightly, that litigation is not your thing at which point the PI insurer will breathe a huge sigh of relief. If you are, like me, a litigation lawyer, then the very thought of committing yourself to the vagaries of a piece of litigation would probably be enough to ensure you never stepped from your bed. The reasons that we are now allowed to undertake “no win, no fee” cases is because it was supposed to increase access to justice. When someone asks me why I will not take on a case under a “no win, no fee” arrangement my answer is simply because if you don’t win, I don’t get paid. For cases with little chance of success “no win, no fee” is effectively “pro bono”. (BTW - Personal Injury and Clinical Negligence are closed books to me – for an analysis on how the rise of the CFA has assisted access to justice or otherwise in those areas, you’ll have to look elsewhere. This is after all a few thoughts – not an academic piece) So my point is that pro bono case work is a rare thing. If a litigant is to get free at the point of help advice, it simply has to be paid for by someone else. Yes, that used to be what legal aid did. But no longer. Yes, I’ve said this before. Yes, it is getting a bit monotonous. No, the issue is not going away. Committee Member Win Cummins is leading our SLS Access to Justice committee and she has been working hard looking at how other parts of the country deal with these issues, as well as working directly with Surrey Law Centre alongside Bob Nightingale at the London Legal Support Trust in looking at how we can best help those involved in litigation who have no access to a litigator.
Getting involved and responding to consultations takes time and effort, but it is really important that the voice of us lawyers on all these topics is heard. For two reasons:1. We are the professionals who deal with these things all the time. If there are changes afoot in your area, then you are the one who will understand best the impact any change will have. 2. If we don’t get involved at the consultation stage, the response to any post change comments from the profession are likely met with the comment that we should have spoken up sooner. And the fact that we didn’t indicates that we don’t much care. I had really no idea about how this all worked until I got involved with the SLS Management Committee. This is a real shame as it is so important. I’d almost go so far as to say that I think it should be something that should be highlighted during formal legal training. Or perhaps responding to a consultation could count as part of one’s continuing competence training? James Scozzi is the current Vice President of SLS and he has agreed to monitor consultations and encourage members to respond. It’s a big task, but, as I said, important. If anyone out there is willing and able to look at consultations and respond themselves or provide input to any response, it would be great to hear from you. And if you are wondering what this is all about, or are interested in how this system works, then our TLS Council Members Sushila and John, or indeed James Scozzi and any of us on the Committee would love to hear from you. By the way, Copyright theft is still theft. So I’ll close by apologising for stealing Mondipa’s work. ■
MARK GOUGH, SLS President 2016-17
Consultations We on the board of SLS are lucky to have a very close relationship with Sushila Abrahams and John Perry, the two national Law Society Council Members for Surrey. Sushila and John often remind us of the large number of consultations that take place regarding changes in all areas of law and practice. SurreyLawyer 5
Editorial
CEO ReportSpring 2017 With spring turning our lovely county from winter browns to vibrant greens it is hard not to feel energised and ready for the busy year ahead. We have a packed programme for you between now and the AGM in November and I hope that we will see lots of you during the year.
A
s I am sure you are aware I keep banging on about the need to start keeping your Personal Training Plans as early as possible to ensure you can comply with the new SRA Continuing Compliance regime. If you have Lexcel or one of the specific TLS quality standards you will need to provide proof of compliance. Remember 16 hours of legallyrelated CPD is no longer enough. As always we are here to help you with this in any way that we can…just ask. Our campaign in respect of the Government’s proposal for massive increases in Probate Fees was well received and responded to – thank you to all the members who got involved. Whether our entreaties will fall on deaf ears remains to be seen. The SLS website at www.surreylawsociety.org.uk has a list of all the courses that have been planned so far for the year and you can now opt for an invoice or book and pay online via Eventbrite. The latter system is proving quite popular with Members, despite the small handling fee added to the course fee for using a credit card to book. If you prefer paper to online information we can easily email you a list of the courses and social events from admin@surreylawsociety.or.guk
sponsors for this and all their very generous support throughout the year, making it possible for us to keep our ticket prices, course fees and subscriptions at affordable levels. Surrey Lawyers will be out walking again this June to raise urgently needed funding for the Surrey Law Centre, the 2017 President’s Charity as selected by Mark Gough. You can read more about the charity on page 14. This year’s walk is on Monday 12th June starting at the Guildford Courts and ending at Clyde & Co’s Guildford offices. So time to don trainers and get out there in preparation for this fun event. You can walk it, run it or simply shamble it as you chat to colleagues and friends. No pressure but all in a very good cause. Our autumn Conferences are all planned and ready to book via the website: Private Client Conference on Thursday 21st September, key sponsor Fiona Davies of St James’s Place, and the Conveyancing & Land Law on Thursday 19th October, key sponsor Index Property Information. Both Conferences are being held at GLive in Guildford this year. Please do keep checking the website for courses, events, news and jobs. This is the one-stop place to find out what we are up to and how you can get involved.
On the subject of social events we had an excellent Quiz evening on Tuesday 14th March at the University of Law (ULaw) in Guildford as 16 Teams battled it out for the coveted SUE SEAKENS, title of Legal Brain of Surrey 2017 and the beautiful Mike CEO Surrey Law Society Coverley Challenge Cup. This year’s winners were from Gordons Solicitors Team 1 with 85/100. The Cup was presented t: 01344 860830 e: sueseakens@surreylawsociety.org.uk this year by Michael Coverley, Mike’s son…a little moment in history for us. See the report on page 13 Following on from the Quiz we have our two President’s Area Lunches: the Kingston Lunch at Sorrento in Surbiton on Tuesday 25th April, sponsored by Index Property Information, and the Guildford Lunch at Olivo on Tuesday 16th May, sponsored by HFS Milbourne. Our special thanks to both
CHALLENGE HUGE FEE INCREASES FOR GRANT OF PROBATE APPLICATIONS NOW: SLS are encouraging Society Members, plus their colleagues, associates, friends and family, to take action now...before it is too late. We must make our voices heard on this issue before the May deadline. So please act now and email a letter to your MP. You can also sign the Petition at https://petition.parliament.uk/petitions/188175 We need 100,000 signatures to trigger a Commons debate. SurreyLawyer 7
Local News
Hart Brown Cranleigh office expands its team Surrey law firm Hart Brown is pleased to announce the appointment of a new partner in its Trusts & Estates team at Cranleigh. In addition, an existing team member achieves expert qualification.
Photo: Louise Harrhy
Louise Harrhy has joined the Trusts & Estates team as partner in the Cranleigh office of Hart Brown, moving from Charles Russell Speechlys. A member of The Society of Trust and Estate Practitioners, Louise is highly experienced in probate applications and estate administration. She advises on all areas of private client work encompassing both lifetime and estate planning for high net worth individuals. She also advises on Court of Protection matters including Lasting Powers of Attorney. “I am thrilled to be joining the growing Trusts and Estates team at Hart Brown as a Partner and look forward to working in the Cranleigh office and building new relationships within the community,” commented Louise Further enhancement of the team comes from Associate Solicitor Sara McGrigor receiving her STEP qualification (Society of Trust and Estates Practitioners), a recognition of her expertise in this field. STEP is the worldwide professional association for those advising families across
generations, and members spend their professional lives working with families and tackling real life problems. Reaching full membership requires two years of experience, including significant involvement at a specialist level. Membership shows a deep level of understanding of the topic protection work. Paul Tobias, the head of Hart Brown’s Trusts & Estates Department, commented: “Qualifying as a STEP member involves a lot of extra-curricular study and personal commitment. Sara is to be congratulated for attaining this qualification, which demonstrates that she is a true expert in the field of private client work. I am also delighted to welcome Louise to Hart Brown. Louise has an excellent reputation within the profession and amongst clients she has acted for and will add experience and expertise to our growing Trusts & Estates team.” For more information please visit www.hartbrown.co.uk
The Law Society Council Member’s Report 2017 saw a change within the Law Society with the resignation of Catherine Dixon. We have now in place our interim CEO Paul Tenant OBE. The Law Society has been engaging with members in relation to Brexit and at the moment it is merely advisory. The link here may be useful. Please do read the press releases for the Law Society for more information https://www.thecityuk.com//searchch/brexit-and-uk-basedfinancial-and-related-professional-services/ I would encourage members to go to their My Law Society page and update their details. When you log in to my law society you can find practice notes, the gazette etc. This also gives you the ability to add more information to your Find a Solicitor profile. You will also have access to the solicitor brand campaign materials. The Law Society is developing content gating. That means details of practice notes will be on your My Law Society page. I would encourage you to sign up as soon as possible. A number of firms will be renewing their CQS accreditation. If you have any difficulty or experience any delay that is causing you difficulty being on lender panels then please let me know and I will help you. There is a consultation proposing changes to the Land Registration Rules 2003. It is to do with digitalisation of the conveyancing and registration process. It is very vital that all of you and your firms put in a reply as this change raises many issues of fraud, cybercrime and breaches in security. The consultation closes on 5th April 2017. The link to the consultation is below. https://www.gov.uk/government/consultations/proposals-toamend-the-land-registration-rules-2003 Cyber security has been a hot topic and the law society has been engaging with Liverpool University regarding their research on Artificial intelligence. This link has more information on all the research and papers; www.csc.liv.ac.uk/-katie
Photo: Sushila Abraham
The SRA have produced some information relating to Solicitors and Investment fraud and on IT Security: Keeping Information and Money Safe. These are useful to read and implement in your firms. The Presidents and Secretaries conference will be from 5th to 6th May 2017 and your representative from the Surrey Law Society will be attending and will have an opportunity of having a say at the Law Society. Both John and myself will also be present and if you have anything you wish us to take back to the Law Society please let us know. The Law Society is focusing on being more member focussed so it is important that all of you engage with the Law Society and if you wish to put any views forward then please let John or myself know. I would encourage members who are not already aware that they can use the Reading Room at the Law Society for free if they wish to see clients there instead of having to hire rooms elsewhere. So do take advantage of this. The Law Society is in the process of making changes to the Logos for accreditation so that the Crest of the Society will be imbedded into the logos. It still stands that firms must not use the Law Society’s crest and if you do come across anyone using it then please let me know. The Law Society continues to make representations on behalf of its members in parliament. As before if you have any matters you wish to discuss or would like representations made to the Law Society then please let Joh or myself know and we would be happy to hear from you. ■ by Sushila Abraham. email: office@sabrahamsolicitors.co.uk tel: 020 8390 0044
8 SurreyLawyer
Local News
Photo: Joanne Bell and Chris Millar
Downs Solicitors LLP & The Royal Marsden As part of Downs Solicitors’ Corporate Social Responsibility programme, each year they nominate a Charity of the Year and during 2016 they were proud to partner with Royal Marsden Cancer Charity. The Royal Marsden Hospital is a world-leading cancer centre who pioneer new treatments that save lives. They use their research to provide the very best in diagnosis, treatment and patient care, treating around 50,000 people every year. The revolutionary way they treat people in their hospitals has a farreaching impact, both nationally and internationally. Chris Millar said “Our original fundraising target for the Royal Marsden was £5,000 but we exceeded this figure by raising an incredible £11,868.15 for the charity. This figure will increase to over £12K as we still have one cow to auction from Cow Parade Surrey. This is testament to our employees’ commitment and enthusiasm to raise funds for such a worthwhile charity. They have worked incredibly hard to achieve this target.” The money was raised through a combination of challenging and imaginative events, including; participation in Cow Parade Surrey, a 30 mile walk along the South Downs Way, participation in the Great South Run, an abseil down the Spinnaker Tower in Portsmouth, a Rugby Match and Family Fun Day which Downs co-hosted with
Dorking Rugby Club, coffee mornings, cake sales, dress down days and donations for providing one-off legal advice. Joanne Bell, Community Fundraising Events Manager for the Royal Marsden said “We are absolutely delighted with the amazing sum raised by all the staff at Downs Solicitors and would like to thank each of them for all their hard work over the last year. It is truly thanks to the support of companies like Downs Solicitors that The Royal Marsden can continue to provide the very latest cancer diagnosis, treatment and care for our patients.” During 2017, Downs staff have voted to support St Catherine’s Hospice and the Dorking & District Talking Newspaper. The target for 2017 is £7,000 which will be achieved through a range of events, including a cycle ride from Lands End to John O’Groats, a sponsored walk, dragon boat racing, coffee mornings and cake sales, a quiz night, a netball tournament and a race night. More information about Downs Solicitors LLP can be found at www.downslaw.co.uk.
Solicitor Alastair Logan OBE honoured by the London South Bank University Surrey Solicitor Alastair Logan OBE was honoured by the London South Bank University on 17 February 2017 when he was awarded a place in its Gallery of Inspiring Lawyers for his services to Justice and Human Rights. The award was instituted by the LSBU to emphasise the Rule of Law and the responsibility of individual lawyers and legal campaigners to support the promotion of social justice. Recipients are nominated by present and former students of the LSBU as lawyers and campaigners who have advanced social justice, human rights and the rule of law by Photo: Alastair Logan OBE
devoting a large part of their lives to the pursuit of human rights and social justice. The value of such work and the sacrifices some have made are little known or poorly understood in the wider community contributing to the frequently held perceptions of lawyers as characterised by financial gain, commitment to the maintenance of the status quo and a lack of interest in the advancement of social justice. Previous recipients include Lucy Scott Moncrieff, Khalil Ma’Touq, the Syrian human rights defender, and Baroness Helena Kennedy QC.
SurreyLawyer 9
Local News
Legal Aid Work in Surrey Photo: Graham Guerin
Access to legal aid in Surrey has been so reduced over the years that it is now critically endangered. In the past the vast majority of high street Solicitors practices were akin to a modern GP, offering a wide range of services to the immediate local community. Specialist practices were rare, and legally aided advice was available on almost any subject, together with representation, across a wide range of civil, criminal and family litigation.
This is an area of law where the clientele are more often than not the most disadvantaged in Society and would struggle without a lawyer. The prognosis for the future is unquestionably bleak.
The scheme was means-tested but in my firm, in the late 1970’s, about 70% of the clientele were eligible. Originally administered by the Law Society, its successor the Legal Aid Board and subsequent incarnations established a series of specialist panels requiring specific expertise in specific fields, eg, criminal, children and family, and began a “franchising” scheme that initially monitored but gradually increasingly controlled the work and remuneration of firms regularly undertaking legal aid work.
Family
This enabled central Government to exert strict controls on cost, scope and quality of the work done. Indeed, in real terms, legal aid remuneration rates have consistently declined over the last quarter century whilst administrative requirements and regulatory controls (and therefore running costs) have multiplied. I can give illustrations in three areas where legal aid has always been important. Children Law Children law involving care proceedings is probably the only surviving area where most respondents (parents and children) are not only legally aided but the aid is non-means and nonmerits tested. However, it is appallingly badly paid, the lawyers involved receiving about 20% to 25% of usual private work rates. For instance, the fee for conducting as advocate an hour-long case in the County Court is £95.40; this includes preparation time (almost always at least one hour) and all travel time, however far away the court is. This means that a child law department is often a small heavily subsidised part of a larger commercial law enterprise and only the community and charitable spirit of the partners allows the department to survive. These extremely committed lawyers are often overwhelmed, with too many clients chasing too few Solicitors. Some firms on incredibly tight profit-margins still manage to specialise in this field, supported by the relatively small amount of private work available. This shortage of lawyers has created legal aid deserts in Surrey, clients often travelling long distances to access their Solicitor (after considerable difficulty in locating one) and even further travel to the regular court hearings. Even 10 years ago when I was practising, it was not unusual for a Redhill client’s final hearing to be in Watford or Reading where they had to be by 9.30am after travel on public transport. In the long term, things will only get worse as very few young lawyers can afford to enter this field, leaving a band of ageing senior solicitors working long hours for very low remuneration.
10 SurreyLawyer
Again, payment rates are extremely low compared to private work. So legal aid lawyers are equally few and far between. Recently, the scope of legal aid has been so diminished as to deny access to a solicitor to most potential clients. For instance, no legal aid is available for financial, contact and custody disputes, unless there is evidence of either child abuse or domestic violence against the applicant, who then has to jump through various hoops to prove this to be the case. The fee for conducting an hour-long case in private family law would be a little less than the example given above for a ‘Children’ case. Even when eligibility is established there are then strict financial controls. On the positive side, mediation is now being promoted in family work, for which legal aid remains available. Indeed the statutory charge that could so inhibit financial awards for the legally aided does not apply to mediation. However, the strict financial constraints inevitably deny access to many, who represent themselves. I understand the take-up of mediation remains worryingly low. To proceed without a lawyer requires the outlay of very expensive court fees (eg divorce issue fee £550 unless on passported benefits). There is now considerable demand for “unbundled” legal services, where the lawyer provides advice for a certain stage in the proceedings only, for a fixed fee in advance. Whilst this can work well, it can easily give rise to client confusion as to the scope of the retainer and thus a potential for complaint or negligence claims, and issues for the solicitor as to whether a client can cope with the overall control of the case. The resulting huge rise in litigants in person has increased delays and thereby costs to the judicial system and produces unbalanced equality of arms where only one party has proper legal representation. This has also caused a huge rise in professional (and uninsured) McKenzie Friends of a quality best described as variable, whose unregulated charges can be very considerable. Criminal Recent overhauls have resulted in a massive decrease in the number of firms offering legal aid through savage reductions in levels of fees paid. Whilst free legal advice is still available in most cases at the police station, it is now more likely than before that that advice will be over the telephone rather than solicitor attendance.
Local News
Recent overhauls have resulted in a massive decrease in the number of firms offering legal aid through savage reductions in levels of fees paid. At the Magistrates Court, the scope of cases covered has been reduced and there are strict financial constraints in legal aid eligibility. The fixed cost regime make it difficult to provide much more than a basic service. Many defendants have no alternative but to represent themselves. The situation is similar in the Crown Court, where it is now possible to find defendants on serious charges representing themselves, something unheard of even 10 years ago. The fixed costs payable after the recent cuts means standards are variable. I have heard accounts from barristers who have received a brief consisting of the prosecution papers wrapped around a back-sheet, thus leaving the client in considerable jeopardy. To provide services of the highest professional standard requires dedication and sacrifice with profit margins pared to the bone. One well known Surrey firm describes a case where the CPS disclosure material was in the region of 28,000 pages. An application for a special contract (VHCC) had been refused, which meant in essence that proper perusal of and taking instructions on the paperwork could result in a remuneration rate of about £10 per hour. The long-term prospects for criminal law practitioners and their clients remain bleak in the extreme when these financial pressures are a daily fact of life.
The above shows the disadvantages that the average member of the public now faces in our legal system whether in the civil, family or criminal courts. Law Centres are under extreme financial threat. The business module for any legal aid lawyer makes disturbing reading. If proper legal representation is denied so is justice. Our legal system, once the envy of the world, is being eroded by the effect of extreme cuts in the legal aid system. However, there is clearly little political capital in fighting for access for justice. The National Press have no sympathy with high street solicitors often labelled “Ambulance Chasers” or “Fat Cat Lawyers”. The NHS is clearly at crisis point and remains the obvious immediate priority for any increases in public funding. So what should be done? Is there any answer, or do we just attempt to keep plugging the gaps? As a Surrey lawyer, what are your views? Do you have any experiences to share? Having outlined the problems the Committee of Surrey Law Society would like to gather your opinions to see if any positive and effective proposals or recommendations can be put forward to the Law Society. If you can contribute, please contact me at grahamguerin@live.co.uk.
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SurreyLawyer 11
Local News
WK Law
continues to grow Photo: Tommy White
Photo: Bob Southey
Over the years, Wilkins Kennedy, a firm of Chartered Accountants and Business Advisors, has successfully worked with a number of businesses in the legal profession, from sole practioners to some of the larger practices in the south east. In that time, Wilkins Kennedy has gained an enviable reputation for being one of the UK’s leading accountancy firms acting for law practices – and seven years on we are still going strong!
The early days
Strength to strength
WK Law started life back in 2010 at Wilkins Kennedy’s Heathrow office. The office already had an existing specialist professional services team, who recognised that every legal practice was unique both in terms of structure and their dayto-day requirements for accountancy and tax services. The team’s extensive experience, together with a general demand for services tailored for the legal profession, enabled Wilkins Kennedy to set up WK Law and service legal practice clients using a relevant and broad knowledge base.
One of the main WK Law initiatives was to run a series of short seminars to keep attendees from law firms updated on tax, accounts and regulatory changes. Our seminars now include not only the latest updates from the SRA, and valuable taxation advice, but also feature external speakers pertinent to the profession a chance to provide updates on non-accounting subjects, such as updates on the Professional Indemnity Insurance market and workplace strategy. The seminars also provide an opportunity for networking with colleagues from other local firms of solicitors.
In addition to offering clients a full tax compliance service, including the completion of partnership tax returns and personal tax returns, we have also provided clients with help on tax planning advice and strategies, including succession planning and structuring. WK Law can also carry out regular SRA Accounts Rules compliance reviews and compile accountant’s reports to the SRA.
Over the years there have been a number of topical events we have covered including HMRC’s consultation on fixed profit share partners, multiple SRA Accounts rules changes, and the introduction of the “new” SRA Handbook. The seminars have been attended by nearly a thousand people since they first started, and continue to be a success to the present day. Specific training courses followed in 2012, and these are held both in-house and externally. Courses are tailored for the requirements of the firm, and topics include updates on Capital Allowances for property teams, and updates for partners, fee earners and accounts staff on the SRA Accounts Rules. Where we are today Thanks to the ever-changing legal world, there are often a number of core discussion points for our WK Law clients and prospects. Thanks to our vast knowledge of the sector, we have now been able to refine our offering of accounting and support services, so whether you need advice relating to the structuring of partnerships, help with succession planning, or some support with the preparation of the annual SRA Accounts Rules Accountant’s Report then we can help. Of course, we also offer more general tax and financial planning advice if you need it. We are pleased that our service offering has proven to be a successful formula and now WK Law is offered at both of Wilkins Kennedy’s Surrey offices in Guildford and Heathrow as well as across the firm in our other regions. If you are interested to hear more, contact us today to see how we can help. Contact tommy.white@wilkinskennedy.com or bob.southey@wilkinskennedy.com
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Local News
The Legal Brain of Surrey Quiz
Photo: Left to right: John Perry, Mark Gough, Michael Coverley and the Winning Team: John Austin, John Newbury and Mike Slade.
Photo: SLS President Mark Gough and Michael Coverley with his father’s Challenge Cup.
The Legal Brain of Surrey Quiz is one of the most popular events in the SLS social calendar. Once more we gathered on Tuesday 14th March in Fountain Court at The University of Law in Guildford. We welcomed 48 members in 16 teams to this year’s hotly contested quiz, with no legal expertise required! As always there were 10 rounds of general knowledge questions, devised by the demon mind of SLS Past President and former Treasurer, Mike Hughes, and delivered by our debonair TLS Council Member and Quizmaster Extraordinaire John Perry. The winning team, Gordons Solicitors Team 1, was awarded the Mike Coverley Challenge Cup. This was presented to the Surrey Law Society in memory of Mike Coverley, a wellrespected and well-liked local practitioner. In a small
moment of history in the making Mike's son, Michael Coverley, was taking part this year as one of our President, Mark Gough's team and kindly agreed to present the Cup to our winners (see photos). The winners were also presented with a bottle of Prosecco to reward their hard work. The Surrey Legal Brains from the top were Gordons 1 on 85/100, Laytons 1 and TWM 1 on 83/100, Russell-Cooke on 82/100 and QS Palmers on 81/100. Well done everyone, good work and a great evening.
DMH Stallard in the running for National/Regional Firm of the Year Award Law firm DMH Stallard has been shortlisted for National/Regional Firm of the Year in the Legal Business Awards. The awards celebrate the achievements of law firms, inhouse teams and individuals and are in their 20th year.
The awards will be held at a gala ceremony on 23rd March, at Grosvenor House Hotel, Park Lane, London.
Richard Pollins, Managing Partner at DMH Stallard, said:
DMH Stallard is one of the largest law firms in the south east and employs over 300 staff, including 60 partners across offices in Gatwick, Brighton, London and Guildford.
“The firm is continuing to grow and it’s exciting to be shortlisted in these prestigious awards. We’ve been shortlisted for and won several awards this year and it’s always pleasing for the team to be recognised in such a way. “With our expanded office in Brighton and ongoing senior appointments, 2017 is shaping up to be another great year.”
It was confirmed in the Top 100 law firms in the UK after reporting revenues of over £24 million and is seventh in the ranking of greatest growth in 2016.
SurreyLawyer 13
Young Lawyers
A Young Surrey Lawyers update from the Junior Lawyers Division Victora Clarke, our JLD Representative, went to the National Committee meeting on 28 January 2017 to discuss what is happening in the Law Society and what changes are being made that could affect law students, trainees, and junior lawyers. Photo: Victoria Clarke
Solicitors Qualifying Exams (SQEs)
JLD Annual Conference and Ball
You may have heard that the SRA is looking to scrap legal qualification as we know it, with training contracts becoming a thing of the past. The idea now is for a student to take the SQEs in two parts, with training in between, and qualify at the end of the process.
The JLD will be hosting their annual conference and ball again this year on 8 April 2017. The day will consist of a conference covering subjects like routes to partnership, flexible working, setting up on your own, developing soft skills, and CV clinics. The day will be followed by a black-tie ball. Ticket prices can be found on the Law Society Website.
The first exams must be passed before a student undertakes “qualifying work experience” for what we expect to be a period of two years. So far there’s no guidance as to what qualifies as work experience, or how it will be recorded. After these two years, the student can take the second exam. If they pass, they will become a qualified solicitor. The JLD have some concerns about the technicalities of the change, including the risk of an influx of NQ solicitors trying to find a job, but overall they are in favour of a system which encourages diversity. The proposed implementation is 2019 but education providers have already said it would take 3 years to design the revised course, and there is a suggested long-stop date of 2026 before students have to stop taking the old-style course. We will keep you posted with further information.
If you have any queries about the above proposals or the JLD Conference then please feel free to email us at youngsurreylawyers@hotmail.com YSL Committee x Our mailing address is: Young Surrey Lawyers Madeleine Gooding at TWM Solicitors LLP 65 Woodbridge Road Guildford, Surrey GU1 4RD United Kingdom
Surrey Law Centre NEEDS YOU! Until 2013 Surrey Law Centre provided casework services for people on low income in all of the main areas of social welfare law. Most of its funding came from the Legal Aid Agency. When the LASPO reforms were introduced in 2013, many areas of welfare law were removed from the scope of legal aid and in those that were left there were severe restrictions on what was covered.
generosity of 132 solicitors who give their time freely to ensure the service keeps running. However as with all charities, funding is the big issue. In order to keep going we need your help.”
Slowly but surely that almost drove the Law Centre to close down.
Mark continues “We have a constant worry about funding, we have to apply for grants and donations on almost a monthly basis to keep going. We have modest overheads as we operate on just three part time staff members. We need the current service to continue and to expand. We also would like to fund some case work where the person just cannot get any legal aid and is in dire need.
However, the CEO, Mark Gough, took the radical decision to cease casework and develop pro bono services to supplement services provided by the remaining legal aid firms in the County. The pro bono development has been an overwhelming success with a dozen fortnightly clinics being established in the County staffed by well over 100 volunteers from Surrey law firms. Last year, the surgeries and the law centre telephone advice service helped nearly 5,000 people. Sadly the aim to supplement local private practice has not gone so well at all. The LASPO reforms took their toll on the high street as well as on the Law Centre and most firms withdrew from legal aid in the social welfare areas of law. Where legal aid remains, particularly in family law, there is still some provision but that is severely limited. So while the Law Centre is managing to ensure that there is some advice available, there is virtually no casework available and that means that the most disadvantaged people and those with the most difficult cases are not receiving the help that they need. In addition, the law centre is surviving on donations and the income from the Guildford Legal Walk. Even though the Centre only employs the equivalent of 1.5 full time staff members and has a tiny office in Epsom, the costs of maintaining that and the surgeries are more than the income. Mark Gough the CEO of the Surrey Law Centre and also the current President of the Surrey Law Society is proud of the Surrey Law Centre achievements and he has a vision of what it could achieve in the future. “There is now an enormous gap in Surrey between the provision of legal services and people in genuine need. All of our clinics are full. We rely on the
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So we are looking for 1) Donations (no matter how big or small) Every little helps. You can send your donations to Surrey Law Centre The Ebbisham Centre, Epsom, Surrey, KT19 8AG or make a direct bank transfer to CAF Bank sort code 40-52-40; a/c 00013948 2) Sign up a team from your firm to walk in the Guildford Legal Walk on June 12th. Contact bob@llst.org.uk for information and to register or express interest. 3) Volunteers to help with preparing and submitting for grant and lottery applications. We have a lot of work to do just to get ready for the grant submissions. We have to carry out needs assessments and keep up with reports to keep the stakeholders informed. This is all extra administration for which we just haven’t got the resources. 4) More volunteers to help at our clinics. The Law Society has launched the Law Society Pro Bono Charter so if your firms what to commit the Pro Bono Charter this may be a simple way forward. If you require any further information please contact Mark Gough mark@markgoughlaw.com or Angie Brock angelabrock@surreylawcentre.org
Employment
Employment Law Update
Employment Tribunal Decisions now public! From February, the decisions from Employment Tribunals are now being published via an online database which includes decisions made in England, Wales and Scotland. Some judgments from 2015 have been uploaded but the majority are decisions made from 2016 onwards. Employers can carry out a search of potential employees against this database to see if they have previously brought claims, but likewise potential employees and litigants can also search to see if you have had a claim brought against you. However, beware of the risks - as an employer if you fail to give someone a role because they had previously brought a discrimination claim, you could have a victimisation claim brought against you! It is thought this publication may increase the amount of claims being settled before getting to the Tribunal, as both employees and employers will want to keep their names off the record, to protect their future employability and reputation. An increase in the amount of restricted reporting orders may also be seen especially for cases involving sexual harassment.
would provide employers some certainty to existing workforces and future recruitment. It is hoped this can be done before Brexit. Otherwise it looks like being “business as usual” at least until 2 years after the triggering of Article 50. This article was provided by Just Employment Solicitors. Contact us on 01483 303636 or email info@justemployment.com Website:www.justemployment.com
Are Dress Codes allowed? Employers have a right to project a company image and set a dress code, particularly for customer or client facing roles. However, setting a dress code puts employers at risk of claims of religious discrimination, sex discrimination, disability discrimination and discrimination on the grounds of gender reassignment if the policy they set is not flexible enough to accommodate the needs of all employees. The impact of getting this wrong can be costly to both your finances and reputation, everyone has heard about the “High Heels” case! Brexit – the impact on employment law The European Communities Act 1972 will be repealed; however, all law in force currently will remain. The European Court of Justice will no longer be part of the UK system. It is unclear if EU case law which establishes precedents will continue to be binding or if the courts can disregard those judgments. It is thought likely that we will see a visa system implemented for EU migrant workers which is similar to that of non-EU migrant workers currently placing a higher burden on employers. The Prime Minister has also indicated that she wants to give assurances to guarantee the rights of EU nationals that are already living and working here and to those UK nationals that are living and working in the EU, this
SurreyLawyer 15
Articles
Death and Taxes– the two certainties of life. Benjamin Franklin had the right of it when he opined as above.
Photo: Ken Seakens
There are differing schools of thought regarding taxation on death – it’s right and proper to tax inherited wealth or assets acquired from taxed income are unfairly taxed twice by a death tax.
No matter which school you prefer the government remains wedded to the prospect of easy pickings on death and has recently consulted on a new wheeze – increase the fees for obtaining a Grant of Representation. So what, you scoff, it’s only a fee. Or is it? Deceased’s estates not passing to a spouse, civil partner or charity (or able to claim some specific exemption) already bear Inheritance Tax (IHT), on values exceeding a person’s individual exemption therefrom of £325,000, at a rate of 40%. Currently the fees for obtaining a Grant of Representation to an estate, enabling collection and distribution of assets, ranges between £155 - £215. They could rise to £20,000. This present, comparatively modest impost nevertheless manages to fund the Probate Registries adequately. Despite the wanton destruction of assorted District Registries and Registrars the system limps along reasonably well, if not as efficiently and seamlessly as before.
Is this new Fee scale therefore fair and proportionate? Does it honestly reflect the real cost of providing the service? Would it be more reasonably categorized as additional IHT? Now for the practical effects. Who will pay these fees? The Executors or Administrators? Where will they find the funds to do so in the majority of modest estates where fees have risen to £1,000 or £4.000 or more and the estate is frozen pending a Grant of Representation? A solicitor’s firm handling the estate? How many firms’ cash flow would support this? A bank? How difficult is it these days to extract an IHT loan from a bank let alone a £20,000 fee before even a Grant? How many estates handled on a daily basis are asset rich and cash poor, especially in Surrey? How many elderly widows and widowers do you see on a regular basis who would be quite unable to meet these fees?
The Law of Unintended Consequences is likely to be given full rein in the forthcoming scenario. Representation will be avoided altogether piling up problems for the future. Inappropriate trusts All is not well however in these rarified spheres following a will be urged upon failing parents in an effort to avoid these government Consultation on Probate Fees (aka Tax) on estates. swingeing costs. The uninformed and the unscrupulous will not The Consultation garnered over 800 responses of which about 98% rejected the proposed changes due, now, to come into effect bother to file a tax return at all. Government revenue could well decline instead. That may be a consummation devoutly to be in May 2017. In Surrey, which end of the table is more likely to wish’d but I doubt it figured largely in the Treasury’s calculations. affect your clients do you think? The new Table of Fees is reproduced below:
Probate Registry increase of fees from 1st May 2017 from £155.00 to: • Exempt fee up to £50,000.00 • £300.00 for estates worth more than £50,000 to £300,000 • £1,000 for estates worth more than £300,000 and up to £500,000 • £4,000 for estates worth more than £500,000 and up to £1 million • £8,000 for estates worth more than £1m and up to £1.6 million • £12,000 for estates worth more than £1.6m and up to £2 million • £20,000 for estates worth more than £2 million
It is quite likely that Surrey MPs are blissfully unaware of the ramifications of this iniquitous proposal and it behoves the profession at large to bring them into their orbit. There is a sample letter which can be obtained from admin@surreylawsociety.org.uk and variations can readily be found at the SFE forum. You can find the contact details for your MP at www.writetothem.com. There is also a Petition on the UK Government & Parliament Petition website at https://petition.parliament.uk/petitions/188175 Please sign it and get colleagues and friends to do likewise. It is easy and takes but a few moments, even in a busy day. We need 10,000 signatures to get the Government to respond and 100,000 signatures to initiate a debate by Government. All Private Client solicitors should take heed of the above and add their weight to the chorus of complaint and objection these proposals richly deserve. So please make your voice heard…write to your MP, vote online but don’t stay silent. This will affect us all at some point in our lives. There is strength in numbers.
These proposed Probate Fees, reaching £20,000 in large estates, having increased exponentially in any event as is apparent from Ken Seakens 2017 the table above, will, says the government, assist in defraying the Honorary Life Member, Surrey Law Society costs of Her Majesty’s Courts and Tribunal service to the tune of 30%. It has been calculated (not by me I hasten to add) that fees on 42% of estates will be increased varying between 2 - 129 times the current fees. The Land Registry’s most expensive fee is 22 times the least. These Probate fees will produce a highest fee of 66 times the lowest chargeable fee. 16 SurreyLawyer
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Changes to Grant Applications Keith Biggs questions whether the amendments to the probate rules for personal applicants herald changes in the way all applications for grants will be made Photo: Keith Biggs
The proposed new Probate Rules (“The Probate Rules 2013”) were delivered by the reforming committee to the Ministry of Justice in the Autumn of 2013. All that was then required were the Practice Directions to accompany the rules. The new rules, in addition to modernizing the wording of the existing rules, replace affidavits and oaths with witness statements and statements of truth as in the Civil Procedure Rules and the Family Proceedings Rules. The Non- Contentious Probate (Amendment) Rules 2016, which came into force on the 1st November, create a new framework (“the alternative procedure”) for personal applicants to lodge applications for grants of representation in the registries. I understand the alternative procedure is to run as a pilot scheme initially through one of the registries (which one I do not know as it is close kept secret and enquiry of three registries has failed to elicit any information; indeed, one denied any knowledge of the rule changes). The amending rules vary rule 5 of the 1987 rules and add a new rule 5A. The effect of the changes is to enable a personal applicant to apply online but only if invited to do so by the registry to which the application is to be made. The requirement of the present rule that all oaths etc. be sworn in the registry is dis-applied. This provision has been dis-applied for some time now and oaths are sworn by solicitors/commissioners with a copy will being marked. The new rule (5A), which prescribes the alternative procedure, also disapplies rule 8 thus dispensing with the need for a sworn oath. The oath is replaced by a statement of truth verifying the application in the online application form. Rule 10 (1) (a), which deals with marking wills, is varied so that the will is marked only with the signature of the applicant. Rule 27(1), which requires notice to be given to a non-proving executor having power reserved, is amended to provide the applicant confirms in accordance with instructions given by the registry that notice has been given. Quite why this last provision is necessary I know not. It could have been contained in the statement of truth as it presently appears in the oath. Before I retired from the registry the idea of online applications for grants was being advanced. The argument against at that time was the need to lodge the original will. If the original will has to be posted or otherwise lodged in the registry then why not lodge all the other documents at the same time in the same way. Accepting that I and my then brother/sister registrars may have been the last of the dinosaurs in computer technology, we could not see the point of anything being lodged online if there was a need to lodge some other essential parts of the application personally or by post not least the court fee without which no action was taken. It was however, the view of the then registrars that swearing an oath to verify the facts was unnecessary and the provisions contained in the CPR seemed to be more appropriate. So, what does the future hold for private client practitioners in the way they apply for grants? I have noted over the last year or so how many county and magistrate’s courts have closed. The Probate Registries are now in towns and cities located where they are simply to be staging posts for “probate offices”; these offices were opened weekly/monthly as required for the attendance of personal applicants to swear papers. With the total relaxation of the requirement in the rules for personal applicants to swear before registry officers the probate offices have closed. The next logical step, if as appears to be the case more savings in running costs are necessary, would be to close the registries and so save several expensive rents. This would lead to the creation of one registry probably somewhere in the north of the country where accommodation is less
expensive. For many years practitioners have sent applications to registries other than that which is geographically closest to them so such closures would make little difference in the delivery of grant applications. Simply a different DX address. The former registrars had spent much time and effort in establishing a uniform practice but there are again now regional variations. Practitioners would apply to one registry which would, hopefully, have a uniform approach to all applications. The hearing of any summons required under the present rules could be dealt with by a registrar (or more likely a district judge) at the nearest Chancery District Registry to where the parties live or in London. If online application becomes the norm then there is even less reason for maintaining the registries in their present locations. From what little information I have about online personal applications under the new rules I understand that initially invitation to apply online will only extend to intestacy (so no will to be lodged). If this works well it will extend to sole executor applications and then progress from there. The court fee for the grant and copies will also be paid online. The registry will, of course, still send the grant when issued by post. Keith Biggs
SurreyLawyer 17
Articles
Peter Scott’s top ten tips 1. Train your people to understand finance The need to understand finance does not just rest with those in management positions or with a finance team. That need extends to all lawyers in a firm who will need to play a more effective part in financially managing clients, colleagues and themselves. The FD of a successful law firm suggested recently that in many firms he knew (including in his own) there is a financial education gap in the sense that there is often a lack of understanding about basic financial matters such as how law firms make profit and how to generate cash faster. Just throwing financial reports at people (even clear and informative reports) is unlikely to be an effective way of improving financial performance if there is no explanation of what the reports mean or what people are supposed to do with them. As a senior associate in one firm said to me “I don’t have a clue about the financial reports I receive!” It is not sufficient to just tell people that they must do certain things and meet certain targets without it ever being explained to them why they should be doing those things and the benefits which will flow if they do so. As a result of this lack of financial knowledge the profitability and cash flows in many firms are far worse than they should be. How much better off would firms be if partners and other fee earners were taught basic financial skills to enable them to better evaluate financial reports and to manage their practices in a way which will enhance a firm’s financial performance? If law firms are to achieve this, at the same time as helping their people to manage their continuing competence, there needs to be more emphasis placed on financial education, training and support for people at all levels in firms. Increasingly progressive law firms are tailoring internal programmes designed to educate partners and others to understand the financial dynamics of their firms. Although the benefits which will accrue to a firm and its people from improving their financial performance should be self - evident, to achieve buy-in (from partners in particular) to financial training, it will often be necessary to make a strong business case showing the benefits which will accrue. Financial training should not be seen in isolation from other areas of learning and development and a financial skills programme may need to run alongside other development programmes covering people management, management of client relationships, team working, leadership and business development. 2. Invest in quality financial resource As law firms continue to grow into businesses of significant size and complexity, there is a corresponding need for enhanced financial management expertise. It may not be palatable to some partners to see ever more so called ‘non fee - earning admin staff’ being taken on, but it can be a serious mistake to starve a finance function of essential and good quality people. If financial performance is to be enhanced then a firm will need to analyse what it is going to require in terms of professional financial resource and to then set about putting that resource to work in the most effective manner. What kind of FD do we need? See http://www.peterscottconsult.co.uk/briefings/Sept2012.pdf Do we currently have the right calibre of finance professionals? Do we need to replace our credit controllers with revenue managers to drive the management of work in progress as well as debtors in order to accelerate cash generation? Paying for a high quality FD and other well trained and experienced professional financial staff is likely to not only make financial sense but increasingly, banks are recommending that law firms change those heading the finance function to more suitably qualified, experienced and credible professionals. 3. Measure and analyse your financial performance Financial measurement and analysis is the key to improving financial performance because diagnosis of problems will point to solutions. In particular, if decisions need to be made about the future of a firm then they should be based on facts rather than assumptions. The purpose of financial measurement and analysis should be to obtain clear and accurate knowledge about what is happening or will happen in the business. Measurement and analysis of every aspect of the operation of a firm will be needed before decisions are made and actions taken. Do we measure the financial performance of each part of our firm? If not, how should we go about it? Do we know how much profit / loss each group or partner in our firm is making? Will this group or partner ever be capable of being profitable? If not, then why do we keep them? How profitable / loss making are some of our clients?
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Which parts of our firm generate good cash flow / haemorrhage cash at an alarming rate? How much working capital do we really need in our firm? Without accurate measurement, no valid analysis of performance will be possible, and without such analysis appropriate solutions cannot be devised and / or remedial action taken. Such financial analysis is likely to reveal a picture of a firm which may surprise partners. Having analysed a firm in this way, the crucial next steps will be to decide to do something about it and then to implement those solutions. 4. Report on what really matters for your business “Information is a source of learning. But unless it is organised, processed and available to the right people in a format for decision making, it is a burden not a benefit” - William Pollard That quote certainly applies to financial reporting in many law firms which continue to provide their partners and other fee earners with over – complicated and lengthy financial reports which often only contain ‘raw data’ as opposed to high quality financial information which can be understood and then acted upon. Reports come to be regarded by partners as useless and as a result are often ignored and ‘binned’. If a firm can identify from the financial analysis of its business the key performance indicators that it will need to best manage the finances of the firm and then translate these into clear and understandable reports, preferably using graphs and ideally on just one page and on a frequency (probably daily or weekly depending upon the report) sufficient to tell those in the firm what is happening, then that is likely to be a huge step forward. Firms can test the effectiveness of their existing financial reports by asking questions such as: Why do we produce this report? Does it tell us what we need to know about our business? Does this report indicate what action we now need to take? What does this report NOT tell us about our business? Do we ever use this report? – If not, then why produce it? 5. Performance manage your people Ensuring that a firm’s people are highly trained and motivated is critical to building high financial performance. However their financial performance cannot be left to chance – it will need to be actively managed and people will need to know – - The key areas in which their financial performance will be measured; - Their performance goals pertaining to each area; - How their performance rates in relation to those goals; and - How performance will be rewarded. To discover how just much more profit and cash can be generated, a firm should carry out a performance audit to find out how its people, its support systems and structures are performing. The focus of the performance audit should be on those factors which can most strongly improve profitability and cash flow. Once the findings from a performance audit have been analysed the next stage should involve a firm helping its people to maximise their potential in relation to their financial management and ensuring that all a firm’s structures, systems and support processes are directed at improving that financial performance. Supporting a firm’s people to help them achieve higher performance in financial management should be just one part of an on-going performance management programme designed to be an investment in the long term future of a firm and to make continuous improvement to establish a firm’s competitive edge. If progress is to be made in financial performance, firms and their people need to adopt a positive and open-minded approach, learning from how other, perhaps more financially successful firms do things, rather than continuing to operate as they always have, or instead of accepting that there is always a reason why something cannot be done (“Yes, but…..”). Performance management is likely to bring to the surface many of the underlying hurdles to change that may be preventing firms from being more financially successful. Ultimately it is a question of whether people are prepared to be managed. 6. Put in place a cash generation plan linked to sanctions As always, cash is king and so firms need to take control of their cash management. Partners in many firms have far too much cash tied up in their firms which would not be needed if cash management was being driven as it should be. Begin by setting work in progress targets for all partners and other fee earners calculated by reference to what is the realistic maximum amount of work in progress that should be carried for any particular practice area given the nature of its work. Implementing work in progress targets in this way should over a period of time progressively reduce work in progress and help to drive increased billings, adding to a firm’s debtors which in turn will need to be subject to enhanced management. Given that the purpose of cash management is to generate cash, then firms should take
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for improving financial performance in 2017 control of the process and implement cash generation plans built around realistic and achievable cash collection targets for groups / partners, which are arrived at based on current and prospective billings and aged debtors. Consistent achievement of targets can then be linked to payment of monthly drawings or distributions of profit to partners. This will begin to test partners’ ‘hunger’. To keep the cash flowing at an accelerated rate, cash collection targets for each department and / partner should be weekly and should be updated weekly. 7. Price and manage work for profit It is often forgotten that pricing is a fundamental element and driver of profitability. Clients are increasingly knowledgeable and sophisticated nowadays when buying legal services and understand the value or ‘worth’ to them of their lawyers’ services as well as being knowledgeable about the cost bases of law firms. Accordingly they require those services to be priced on a basis which is in their eyes ‘value for money’ relative to the results a firm achieves for them; and they will require their chosen law firm to do this ‘better’ than its competitor law firms. Pricing needs to be controlled at the very outset of every matter. However, some firms seem to have no effective controls over partners taking on work at prices which bear no relationship to the cost of doing the work, the need to make a healthy profit margin or to the market place. Work in many firms seems to be taken on at prices which can never make money (or worse, can only lose money). This is why the recording of matter related - time (see below) as a management tool to indicate the cost of doing work is so important. Unless a firm knows how much a job will cost to be done, how can it safely quote a price for that job? Given that clients now increasingly require fixed prices and the SRA Code of Conduct requires that clients are given at the outset the best possible estimate of how much a job will cost them, it is essential that firms are able to: - Scope work - Analyse the risks involved in doing the work and - Budget that work to make a profit - Manage the work to bring the job in on budget Managing work for profit will involve: - Resourcing the matter in the most appropriate and cost effect manner - Monitoring progress financially, for which a firm will need clear and accurate financial information - Managing performance of the people working on a job - Communicating effectively throughout with the client These are project management skills which most lawyers have not been trained to do but will need to be developed if work is to be turned into maximum profit. This again emphasises the need for more financial training. 8. Fully capture matter related time Partners and other fee earners may appear to be busy and putting in long hours yet this may not be reflected in their level of financial contribution. How productive are they? How are they using their time? A performance audit should begin by looking at each partner, fee earner and group in a firm to ascertain the utilisation of their time by comparing their recorded matter-related hours with the hours available to them, in order to identify on what else they are spending their time and whether this is efficient and profitable use of their time. Are our people fully capturing all their matter-related time? While matter-related time should be regarded as only one component in arriving at what is the ‘right price’ for a job, it is an important component because apart from anything else, without recorded time and descriptions of the work carried out, a firm may have very little evidence of what work has been carried out on a matter and will be at risk if bills are challenged. Are the matter related hours targets we have set across the firm realistic? / too high? / too low? If targets are based on what your people have recorded over the past few years when there was perhaps less work around, then targets are likely to be too low relative to current levels of work and so too easy to achieve. There is also plenty of evidence in law firms that for a variety of reasons not everyone fully records the time spent on client work. People are likely to record just enough to meet their targets. At the same time embark on an education and training programme, explaining to all partners and fee earners why they should fully and honestly record such time. Training for people on how to use a time recording system may also help to capture more time. Combine this approach with close monitoring of recorded time against new higher targets on say, a weekly basis and require those who miss their targets to provide explanations. Low recorded hours can be a symptom of numerous problems which may need to be nipped in the bud if serious consequences are to be avoided. Also so – called ‘non-billable time’ codes often tend to become ‘dustbins’ for people to make up their hours in the day when, for whatever reasons, they cannot or choose not to record time against client matters. If an audit shows that non-billable time is a substantial
proportion of total time (I have sometimes seen ineffective non-billable time as high as 40% of the total) then a firm’s people will be throwing away a great deal of their firm’s potential profit. How much more profit would your firm make if every fee earner recorded and recovered an additional 15 / 30 minutes per day? The amount of additional profit is likely to surprise you. 9. Manage realisation (recovery) How much time which should properly have been billed to your clients was written off last year? The action which can have one of the greatest positive impacts on profitability and which requires the least work and effort is to improve the rate at which you realise (recover) work in progress when a matter is billed. A firm will not of course be able to accurately calculate its true realisation (recovery) rate unless there has first been full capture of matter-related time. Carry out an exercise to find out the total amount of work in progress your firm wrote off last year - As a total for the whole firm; and - For each group / partner / fee earner The results may surprise you. For some firms, succeeding in doing this is likely to be the single most important factor to improving profitability. Several years ago I worked with a firm which in its previous financial year had recorded £45M of work in progress but had only billed £40M. When this was pointed out to the partners they were so shocked they immediately agreed to take steps to put in controls to reduce write-offs to no more than half of the previous level. Bringing home to partners the amount of potential profit they may be losing by not adequately managing the realisation (recovery) rate can often have the desired effect by persuading them to take more seriously both profitably managing work to a price (see 7 above) and the billing process, in order to arrive at the ‘right price’ for the work without throwing away their profits. Who is authorised to write off work in progress in your firm? What is usually required is the implementation of a write off policy ‘with teeth’ to control the unjustified writing off of recorded time which should properly be billed to clients. 10. Manage overheads – especially your people costs How can firms ensure they are ‘running on lean burn’? Every individual item of overhead (and particularly the cost of people which is usually the single largest expense) needs to be looked at and questions need to be asked such as: “Is this overhead really necessary for the efficient and profitable operation of our firm or could we do without it / use it less?” “We know we must have this overhead, but how can we reduce the cost of providing it?” Many firms will be surprised to discover just how much unnecessary ‘fat’ they are carrying. A regular testing of every item of overhead and the price being paid for it should be one of the most basic financial disciplines required to run a profitable firm – and it is not difficult to do. In particular, given that people costs are usually the single largest item of overhead it is vital to ensure that a firm’s people are being efficiently and profitably used. This will involve looking at ‘leverage’ (the ratio of equity partners to other fee earners) which is a key element in building greater profitability. Work coming into law firms is continuously being ‘commoditised’, particularly through the use of technology. It will often require a wide range of expertise and experience to be applied to it and ensuring that work is carried out by those with the appropriate level of expertise and at the most appropriate level of cost is a key to building higher profitability. To achieve this will require effective delegation and supervision, which in turn will help to build the use of teams and to better manage risks and compliance. A performance audit will identify which partners are doing work which others should be doing more profitably. A good performance indicator to measure and test of how profitably a firm or a group is using its people is to look at the ‘gross profit’ line (turnover less direct people costs) of the firm / group. Make improved financial performance a priority in 2017 The process of driving financial disciplines often needs to go hand in hand with overcoming internal hurdles to change. If progress is to be made in improving financial performance, firms will need to adopt more positive and open-minded approaches, learning from how other, perhaps more financially successful, firms do things, rather than continuing to operate as they always have. Above all, they will need to ask the crucial question: “Are all our people prepared to be managed for the good of the whole firm?”
Peter Scott Consulting 2017 www.peterscottconsult.co.uk SurreyLawyer 19
Events
SLS Events Diary for 2017:
Event
Date
Title
Venue & Time
Fee for SLS Members
£12 inc VAT (charity event)
CPD
Wed 22nd March
Understanding Care & Dementia
Russell-Cooke 3.00 to 5.00
Social
Tues 25th April
Kingston Area Lunch
Sorrento, Surbiton 12.30 for 1.00
£24 inc VAT
CPD
Wed 26th April
Private Client with John Bunker
Denbies, Dorking 2.00 to 5.15
£126 inc VAT
CPD
Wed 10th May
Conveyancing with Peter Reekie
Denbies, Dorking 2.00 to 5.15
£126 inc VAT
Social
Tues 16th May
Guildford Area Lunch
Olivo, Guildford 12.30 for 1.00
£24 inc VAT
CPD
Wed 24th May
SLS event for Newly Qualified Solicitors Denbies, Dorking 2.00 to 5.15
£126 inc VAT
CPD
Monday 5th June
Surrey Risk Managers Group
To be confirmed
FREE
CPD
Wed 7th June
Contentious Probate for Solicitors & Litigator with Keith Biggs
Denbies, Dorking 2.00 to 5.15
£126 inc VAT
Social
Mon 12th June
Surrey Legal Walk
Guildford Law Courts 5.00pm
CPD
Wed 28th June
Conveyancing with Stephen Desmond
Denbies, Dorking 2.00 to 5.15
CPD
Wed 5th July
(NB morning course)
Family Law with Elizabeth Stokoe
Denbies, Dorking 10.00 to 1.00 £126 inc VAT
CPD
Wed 13th September
Conveyancing with Denis Cameron
Denbies, Dorking 2.00 to 5.15
£126 inc VAT
CPD
Thurs 21st September (all day event)
Private Client Conference
GLive, Guildford 10.00 to 5.00
£156 Early Bird to 14th July
CPD
Wed 27th September
Risk & Compliance with Matt Moore
Denbies, Dorking 2.00 to 5.15
£126 inc VAT
CPD
Thurs 19th October
Conveyancing & Land Law Conference GLive, Guildford 10.00 to 5.00
£156 Early Bird to 14th July
Social
Thurs 23rd November
AGM & Members’ Reception
FREE
(all day event)
(to be confirmed)
6.30 for 7.00
FREE – charity fundraiser £126 inc VAT
SLS Terms & Conditions plus further details of our events, CPD, speakers and online bookings are available on the SLS website www.surreylawsociety.org.uk or from the SLS Administration Office – admin@surreylawsociety.org.uk
There are 3 easy ways to book once you have selected your course from our website at www.surreylawsociety.org.uk: 1) Online with a credit card. Follow the online link to Eventbrite Bookings. Please note there is an additional handling charge for card payment. 2) Download a Booking Form and send to Surrey Law Society with cheque payment (address and/or DX below). 3) Email sueseakens@surreylawsociety.org.uk to reserve a place pending payment and request an invoice. All courses must be paid for in advance.
20 SurreyLawyer
Register by e-mailing bob@llst.org.uk Visit http://www.surreylawsociety.org.uk/events/123
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SurreyLawyer 21
Conveyancing Focus
CRISIS, WHAT CRISIS?
by Kevin Johnson
Apparently, prosperity can be judged by the number of cranes visible on the skyline. If so, then Greater London and Surrey is rolling in it! But Britain, generally, has a lamentable housebuilding record. For three decades, relative to population, we have built fewer houses than any other western European country. Sajid Javid, Secretary of State for Communities and Local Government, in a White Paper grandly titled “Fixing Our Broken Housing Market”, noted that some form of housing being available to everyone starting off in life was now a distant dream for many. The scale of the crisis was underlined in new figures from Javid’s department showing just 140,660 homes in England built in the year to December 2016, a 1% fall on 2015, perhaps reflecting the year’s economic turmoil and suggesting that we cannot expect a flurry of new homes on the market just yet. More worryingly perhaps, housing associations, the main providers of homes classed as “affordable”, built 20% fewer homes in the same 12 months. Significantly, focus has shifted from blaming councils for delaying through cumbersome planning systems, to builders and developers for sitting on large land banks once planning permission has been granted.
waiting for winter to come to an end and see what the new year holds for them. Couple this with the impending end of the current school year, a time when parents will feel more comfortable about putting their children through the stress of moving house and a much higher level of demand from buyers, which can help to push prices ever higher, and it makes for much greater market buoyancy. Marketing a property between mid March and late June is ideal for these reasons. The better weather means that you have an opportunity to show off your home and all it has to offer a buyer, making the most of the brighter weather and summer tones to paint the house in its best light. A garden with fresh green leaves on the trees and spring or early summer flowers gives any buyer a good first impression.
• Although late spring and early summer is traditionally the best time of the year to sell, mid summer sees a tail off of activity as families head off During a year filled with uncertainty, many thought the housebuilding on holidays. As early autumn nears the appetite for properties picks up sector would crumble under the pressure of the Brexit vote. But when again and the market becomes more active with the idea 270,000 homes are annually given planning of being in before Christmas fuelling the appetite to move. permission but only half that number are built, it does seem to confirm the report by an independent Demand will swell for properties around October time, as committee chaired by Sir Michael Lyons for the more people who are considering purchasing a house During a year filled former Labour leader Ed Miliband. He spoke of six start to feel under pressure to get their transaction finalised with uncertainty, land agents alone holding strategic land of 23,000 so they can be in their home and settled well before acres and warned that owners were holding onto many thought the Christmas. For sellers, this can mean there’s a real rush on land, some with planning permission, in the hope housebuilding sector in autumn, and this often presents the best chance to get that it would rise in value. a quick sale.
would crumble under
But if the housing market is ‘broken’ then how is it • People see the New Year as a chance to start afresh, the pressure of the that, despite continuing property supply issues, the and many look for ways to make changes in their lives, be number of prospective buyers increased? More it through a new career move or a new house. Interestingly Brexit vote. than one in 20 properties in January (7%) sold for it has been reported that as many as three million Britons more than the original asking price and the number of willing buyers per were looking at houses on their first day back in work after the last estate agency branch in January was 425. This reflects a 10% increase Christmas period. With this sort of demand afoot, it might make sense on December 2016 when estate agents registered 386 on average. for buyers to start thinking about coming to market before Christmas is really even over! Properties for sale on estate agents’ books in January numbered 38. This is a decrease from December when 41 properties were available Either way, with more residential property in the pipeline and future ploys and the lowest recorded since July 2016; the increase in house hunters for the housing market included in the Government White Paper, the and decrease in properties means there is an average of 11 buyers summer rapidly approaching and a degree of economic optimism in the chasing each property. air, we can look ahead more positively than we’ve been able to do in And so, this surely presents a tremendous opportunity to those thinking about the right time to sell and make a change to their lives? And sellers can make sure they have the best chance of securing a home sale effectively. There are definitely times of the year when it’s better to sell, and times when waiting a little longer can pay off in the long run. But when is the best time to sell? • Early summer, rapidly approaching, is the prime time to put a property on the market; many new buyers come to the market who have been 22 SurreyLawyer
recent years. As the property industry continues to tackle our so called housing crisis look out for a skyline filled with the silhouette of cranes and estate agents boards flowering like daffodils in front gardens. ■ For more information please contact our office on 0843 659 4000 or email me at kevin.johnson@indexpi.co.uk or call me personally on 07985 962919
Conveyancing Focus
Ten considerations when starting your own law firm
Pic: Pete Baverstock
Peter Baverstock of LEAP, the leading cloud based legal software solution for small law firms, outlines areas to consider when starting your own firm.
The continuing advancement of cloud technology and new ownership regulations mean it has never been easier to start a law firm. Mobility, simpler and lower cost technology and widespread acceptance of remote working are motivating legal entrepreneurs wanting to start their own practice. What to practise
Organisation
Your brand should be determined by your choice of what area of law to concentrate on. Choosing the area of law that interests you most is one of the keys to future success. It is better to narrow your services and build your expertise. Specialisation is attractive, but risky; for example, conveyancing is notoriously subject to economic cycles.
When starting your firm there is so much to consider. Here’s a brief checklist: Law Society requirements, Professional indemnity insurance, bank, website, letterhead, practice management software, computer infrastructure, legal cashier. You need to be able to: communicate with your clients, create documents, record your time, disburse money for your clients, manage client money and designated account money, bill clients, keep books without needing the skills of a cashier and keep all the accounting records relating to employment and the general running of a business including your nominal ledger and VAT. A good case management solution is invaluable as it will provide a platform to meet all the above requirements.
How to attract clients Clients will not arrive without effort. Fortunately, technology is aiding the acquisition of new clients. A website with good Search Engine Optimisation will give you a competitive advantage over more established competitors. If you use social media like LinkedIn or Facebook, you can quickly turn your network into a potential source of leads by declaring your new status. Network, network, network high street firms generally find that the majority of their work comes from people in their local area. It is important to attend business events to meet other local business people. A strong referral network in your local area will help create a regular stream of work.
Where to practise A few years ago, the obvious answer to this question would have been that you needed a physical office with all the related costs. However, technology has changed everything, in particular cloud software now allows you to practise anywhere at any time and keep initial costs to a minimum. We have become accustomed to working remotely and without spending hours commuting, so becoming more productive.
Buying a practice Many small law firms are currently owned by ‘baby boomers’, lawyers approaching retirement who have not made a succession plan and have no exit strategy. Often they have a significant clientele and it may cost less to purchase one of these firms than building your own client list from scratch.
Making your plan You need a strategy and a business plan. You need the right person/people to support you. You need to be able to execute your strategy and have the cash-flow to do so. Plan in terms of time. Where do you want to be in three months, two years, five years?
How much investment do you need?
Software options Today, cloud software offers the ability to run a successful law firm from anywhere and from any device (even from somebody else’s device via a web browser). You could be in your office, at home, on a beach, on a train or plane. Cloud software will provide you with: lower infrastructure costs, no need for servers nor costly data storage devices, accessibility from anywhere in the world with a good internet connection, a mobile workforce with staff having more flexible hours and a better work/life balance. Cloud software gives you the ability to work while not connected to the internet with full synchronisation when you reconnect.
Technology infrastructure It is important that you choose a technology supplier that is familiar with the needs of small law firms. It is often also possible for you to lease your IT infrastructure so that you have predictable and affordable monthly payments.
Compliance Compliance shouldn’t be a burden to you but a natural consequence of running your firm well. You need to be admitted to the Solicitors Regulatory Authority and to have Professional Indemnity Insurance. Once practising you need to comply with your COLP and COFA obligations. Hopefully you will now have the confidence to take your first steps to becoming a small law firm owner.
Calculate how much money you need to cover cash-flow. Funding is available, even for start-ups. Keep your start-up costs low by investing in good systems and being organised. What is your costing model? Fixed Fee, Time Based Billing or both? SurreyLawyer 23
Conveyancing Focus
RETAIL MARKET OPENING From April 2017, all non-household customers in England will be able to choose their water and sewerage retail services provider. This is due to a change in the law under the Water Act 2014, designed to introduce competition into the water industry. Whilst existing water companies will still own and maintain water and sewerage networks, services including billing, handling customer queries and complaints, and meter reading will be provided by a number of different companies (see www.open-water.org.uk/). This change will have an impact on the Commercial Drainage and Water Enquiry (CommercialDW). From April 2017, this will affect the answers to the following questions: • Is a surface water drainage charge payable? • Who bills the property for sewerage services?
With regard to who bills a property, the existing owner should be in a position to let you know who the current retailer is. A full list of potential retailers is available at www.open-water.org.uk/for customers/find a supplier/ It also means that the current question: What is the current basis for charging for sewerage and water services at the property? Will be replaced by the question: Is there a meter installed at this property?
• Who bills the property for water services?
All the other information usually contained in your CommercialDW Enquiry will remain as comprehensive as it is currently.
With surface water, the Enquiry will continue to indicate whether or not surface water discharges to a public sewer. Where such connections exist, a drainage charge may be applicable.
To find out more call us on 0845 070 9148 or visit www.thameswater-propertysearches.co.uk
24 SurreyLawyer
Finance
Is financial services regulation in your blind spot? Jonathon Bray
The SRA recently announced that it will shortly be issuing a questionnaire on financial services conducted by solicitors. “Questionnaire” is perhaps a kinder word than “review”. But do not be fooled. The regulator is concerned that solicitors are routinely undertaking financial services work without following the specialist rules. Or, in the worst cases, doing work they are not permitted to do under the Financial Services and Markets Act (FSMA) without being FCAregulated. And the SRA is right to be concerned. There are huge swathes of the profession that do not follow the specialist rules contained in the SRA Handbook. This might be because either they do not know they are there, or because they do not recognise that the work they do counts as “financial services” under FSMA. Neither is an excuse. The main areas that would otherwise sit under the FCA umbrella include financial services (e.g. financial advice), insurance mediation and consumer credit. Solicitors have the benefit of an exemption to being regulated by the FCA if their financial services work falls within narrowly defined criteria in Part XX of the FSMA. These are commonly known as the “Part 20 exemptions”. It means that most solicitors do not have to be dual regulated. There are a handful of law firms that choose to have FCA licences as well - typically because their work does not sit within the Part 20 exemptions. As a general rule of thumb, so long as the work is incidental to an underlying legal transaction, solicitors can undertake the work specified in the Part 20 exemption. The trade-off is that the specialist SRA rules must be followed. Specialist rules, the Financial Services (Scope) Rules 2001 and Financial Selling (Conduct of Business) Rules 2001, are in place and need to be followed. You will find them buried towards the end of the current SRA Handbook. The Scope Rules are important because they set out what is (and is not) included in the Part 20 exemption. In other words, whether you are permitted to undertake a particular activity without an FCA licence. The Conduct of Business Rules then set out how an SRA-regulated firm must undertake that financial services work. Requirements under the specialist rules include: - holding commission earned from recommending a product to the order of the client - appearing on the FCA Exempt Professional Firms Register - appointing an insurance mediation officer - using the prescribed wording to tell the client about your status as a non-FCA regulated firm - discussing the product’s suitability with the client - giving the client a “demands and needs” statement, setting out why a particular product has been recommended
These are not particularly onerous requirements. Trouble is, the rules are often overlooked. The SRA’s pending review no doubt seeks to assess the scale of the issue. Reading between the lines, they are concerned that widespread flouting of the rules threatens the carve outs for solicitors negotiated with the FCA. That would mean all financial work would have to be separately FCA-regulated. COLPs and ‘managers’ (i.e Partners/Directors) should also have cause for concern. Not least because the FSMA contains criminal penalties. Beyond that, Outcome 7.5 of the Code of Conduct requires the firm to comply with legislation applicable to your business, which certainly includes the FSMA. The Authorisation Rules also require COLPs to take reasonable steps to ensure compliance with statutory obligations applicable to the firm, and record any compliance failures. So there is plenty of scope for the regulators to hang you out to dry if they so wish. My recommendation is therefore to pre-empt this SRA exercise. Start by looking at the type of work your firm undertakes, and identifying whether anything could cross the line into financial services. Is financial services work purely incidental to an underlying legal service, or do we risk straying into mainstream financial services? Are the specialist rules being followed? Are there systems in place to make sure they are followed in each case? Where necessary, is the firm listed on the FCA Exempt Professional Firms Register? Is firmwide Part 20 training needed? I would also make sure your supervision and file review systems specifically targets financial services compliance. To get you thinking, see if you can identify which of these “financial services” is permissible for a solicitor to undertake under SRA regulation? What are the compliance implications? What practical steps do the specialist rules require you to take, if any? - A property solicitor puts in place a title guarantee insurance policy. - A family solicitor takes payment by instalment from a client who has fallen behind on payments. - A personal injury solicitor puts in place after the event insurance policies in most of her cases. - A private client solicitor recommends an investment product. - A property solicitor gives a client advice on mortgages. - A civil litigator recommends a litigation loan as a funding option. Feel free to contact me to discuss the answers. Jonathon Bray provides outsourced compliance and risk management support (“COLP-help”) www.jonathonbray.com
SurreyLawyer 25
Technology
Digital Transformation and the Workplace Law firms are undergoing a digital transformation that is forcing them to change the way they do business. As a result, the way work is being done has changed. Legal professionals are becoming increasingly mobile and are no longer confined to a single place or device. Collaboration, untethered mobility and rapid communication are becoming the cornerstone of productivity and client satisfaction. Law firms and corporate legal departments are responding to this shift by ensuring they have all the tools and resources needed for their lawyers to be productive and efficient. In addition to delivering these assets, firms are also finding they need to ensure systems are always on and available while protecting their users from external threats and attacks. The New Professional: Mobile, tech savvy, demanding change in applications and tools The increased mobility of today’s legal workforce and the consumerisation of IT are reshaping what today’s lawyers need and expect from their employers to do their jobs. New professionals are not defined by their age, but instead by their intimate familiarity with technology and their expectation for a frictionless work experience across all devices. The new professional uses multiple screens: phone, tablet and PC – and has the expectation that information and communications are equally accessible from each. As expectations continue to rise around their ability to access email and edit documents on any device, more and more firms are providing solutions that emulate identical user experience no matter the device or document. Most importantly, new professionals use technology in their personal lives, downloading apps, getting directions, sending packages, and hailing transportation. They are intimately familiar with what technology can do, and know now how to get critical work functions accomplished – such as document editing, sharing and collaboration – without 100% reliance on the tools provided by their employers. The New Client: Higher expectations, more stringent security and governance of their information One of the biggest drivers of change stems from increasingly high expectations from clients. The new client demands quicker responses, more value for their money, an overall better customer experience and the most stringent security and governance over their information. While the client has always been in the driver’s seat, these demands are increasing pressures on legal firms trying to adapt to the transformations they are already experiencing. These new clients are also the ones driving many of the changes with the new professional. Given recent news about law firm data breaches, and the changing nature of cyber-threats, the new client is also becoming increasingly sensitive to where – and how – their
26 SurreyLawyer
information is being stored. Client security audits and surveys are getting longer every year, and the amount of energy expended to ensure that each client’s information is managed in accordance with its specific wishes in terms of location, cloud or no cloud, retention post close, etc. – becomes overbearing to manage across the number of offices and matters. The New Law Firm: Adapting to client demands Twenty years ago, paper was king for most firms. Today, digital platforms such as chat tools, text messaging, file shares, new data formats like One Note, images and videos are used by professionals to collaborate and store information – adding complexity and chaos to the workflow process. This change, combined with increased communication between technologies, is impacting how professionals deliver great client work. The ‘new firm’ recognises the need to adapt to new client demands and changes in market conditions to remain competitive. The new firm continuously improves itself to meet the expectations of its professionals by improving their productivity, as well as adopting tools and processes that evolve the business model beyond the billable hour – ultimately increasing agility and flexibility and producing more efficient work. With today’s new ways of working, it is now more important than ever for firms to drive new business models enabled by technology that increase productivity amongst their professionals – enabling them to communicate in a secure and controlled manner that does not put valuable information at risk. by Geoff Hornsby General Manager EMEA, iManage For more information visit www.imanage.com.
Technology
BOURNEMOUTH IN YOUR POCKET. Smartphone users expect everything they need to be just a few screen taps away, wherever they are. And conference delegates are no exception. With a destination app they can find cabs and restaurants, find Richards, Reservations Manager at Business Events out what’s on in local bars and cinemas, shop and take in the Bournemouth. “Most of the data for the destination will live on local sights and attractions. It also makes their money go the visitor’s phone, rather than relying on fluctuating Last year, further. internet and wi-fi signals.
over 118,000
Local businesses will be keen to design and publish “We can keep tuning the content to reflect the way delegates special offers to reach the thousands of business tourists people use the app – the more we learn about our visited looking for ways to spend their money and free time, which Bournemouth. visitors’ interests and preferences, the more relevant means delegates get the best the destination can offer, for a the content will be to their experience.� great price. Last year, over 118,000 delegates visited Bournemouth. That’s a huge market for local firms to tap into, To find out more call 01202 055556 leading to plenty of choice and some very competitive deals for Email karina@businesseventsbournemouth.co.uk visitors. or Visit BusinessEventsBournemouth.org.uk Business Events Bournemouth has teamed up with Bournemouth Town Centre Business Improvement District (BID) to develop and launch an exciting new app to attract more customers to the town centre. Launched this month, the Bournemouth app will create a new channel for local businesses to promote deals and special offers to the many thousands of people coming to attend business and consumer events in Bournemouth. Conference delegates, staff, exhibitors and other visitors will be able to download the app free to their Apple or Android smart devices to help plan their visit and create their own itinerary for exploring the town. Business Events Bournemouth is the officially appointed agency for Bournemouth’s hotels, helping organisers to find the right fit in venues and accommodation for their delegates. “Now, with the new app, local businesses will be able create targeted offers relevant to events and the audiences who attend,� says Business Events Bournemouth’s Manager, Karina Gregory. “Delegates and visiting members of the public expect to have everything they need for their visit, on tap, on their smartphone. Our new app puts Bournemouth in their pocket, giving plenty of options to make the most of their visit and choose how and where to spend their money wisely. “By providing a destination app we are giving visitors a more directed and focused experience that works faster than browsing a mobile website. Once they download it to their phone, the things they value most are in immediate reach,� says Simon
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SurreyLawyer 27
Event Management
YOUR ADVENTURE BEGINS...
Poole based Event Management Agency, Eventscape, has been organising events across the UK and Overseas since 2002. We create high end incentives and events, resulting in memorable experiences for our clients and partners. We organise Conferences & Board Meetings, Corporate Hospitality, Incentive & Reward programmes, Gala Dinners, Team Building and have our own Marine events division. With a wealth of countries, venues and activities available to the corporate market, the UK may logistically appeal but it is also worth considering overseas locations as sometimes these prove more cost effective. If your brief calls for a luxury one day incentive to ‘thank Partners’, contemplate chartering a private plane to France to taste Champagne in Reims, Fine Wines in Bordeaux or a gastronique delight in Paris… Consider a decadent evening of Champagne and fine dining prepared by a top Celebrity Chef on the Belmond British Pullman, whilst being whisked back in time to a more gracious age of travel. Golfing and Driving days can be magically enhanced…transport your guests to Lapland and let them try snowmobiling, Husky, Reindeer or Porsche driving or a very unusual game of golf on the frozen icescapes. Successful events may sometimes require interesting quirky elements to boost attendance. We can bring your next event to life, be it Annual Conference, Gala Dinner or Award Ceremony with lavish décor, fresh exciting performers and energisers. We offer a free venue finding service and the best hotel agency rates. Working closely with the stunning New Forest Hotel, Chewton Glen, this beautiful location provides a backdrop for Board meetings, which you may find are more productive held out of the office. We are proud of our new partnership with Somerley House as their preferred activity and event supplier. Look on our website www.eventscape.co.uk for ideas and dates for your diary for a quintessentially English summer: Henley Festival A unique black tie summer party set on the Banks of the River Thames to celebrate the very best of International and UK Music, Art, Food and Comedy 5th – 9th July 2017
28 SurreyLawyer
Royal Ascot Not only a national institution for Horse Racing but a centre piece of the British social and sporting calendar 20th – 24th June 2017 The Jaeger-LeCoultre Gold Cup The premier Polo tournament in the world at 22 goal level, played to decide the British Open Polo Championship at Cowdray Park. 23rd July 2017 Cowes Week The largest Sailing Regatta of its kind in the world. 29th July – 5th August 2017 MARINE EVENTS Our specialist Marine division organises luxury Powerboat and Yacht Charters from the Solent and Poole Harbour. Our Marine staff are professionally accredited and with a wealth of experience of water based charters, we are able to offer boats of varying size and budget to suit all requirements. We offer luxury packages from our selection of powerboats, as a platform for you to bond with your corporate clients to watch your chosen regatta or enjoy VIP hospitality. We will be hosting a fantastic demo afternoon on board a stunning Sunseeker Predator 56 Powerboat, please email us if you would like to attend on enquiries@eventscape.co.uk ■ Tel: 01202 853202
Cyber Security
FIGHTING BACK AGAINST THE FRIDAY FRAUDSTERS The digital world offers a seemingly unending stream of opportunities for criminals to enrich themselves at the expense of others. The legal profession, routinely dealing as it does with the most sensitive of financial affairs, is a tempting target for the scammers. One of the latest forms of internet crime to hit the headlines is conveyancing fraud – or so called “Friday Afternoon Fraud” - involving the fraudulent diversion of wire transfers into bank accounts under the control of scammers. Typically, the crooks strike just before a weekend or a bank holiday, hence the catchy sobriquet. The sums of money involved are substantial and the risks minimal. Little wonder that is one of the fastest growing online frauds.
grade security, collaboration and administration tools. The resulting product offers full end-to-end (e2e) encryption across not just messaging, but voice calls, video conferencing and file sharing. In developing VIPole, we took a completely different approach,” says Miller, “Starting from the basic concept of an encrypted team collaboration tool, rather than a personal messenger with encryption added as an afterthought.” Unlike most other apps, IT administrators can manage teams of users, with a high degree of control over how they can use the system. “For example,” says Miller, “We can give individuals the ability to read but not share certain files, or deny access from devices outside the corporate network”
A typical case will involve the victim being contacted on the day of exchange, apparently by their solicitor, informing them of a change of bank details for the transfer of funds. The emails appear absolutely genuine, and include all the correct names and references. But in reality, the email is a fake; the fraudster has intercepted legitimate email The reason is that it’s not just emails that are vulnerable to unauthorised exchanges and has been patiently monitoring activity, waiting for the access. “Unencrypted data stored on mobile devices and even a right moment to interject false transfer information. Once money hits the company’s own server also represents a potential threat. criminal's account, it is instantly transferred to a Research has shown that 42% of all commercial data loss network of other accounts all over the world, where Encryption is a incidents involve a company’s own personnel, either acting it effectively becomes untraceable. powerful weapon maliciously or accidentally.” VIPole protects this data as well,
and gives administrators the power to remote wipe sensitive As is common in electronic crime, it is the humble against fraudsters, data from devices that have been lost or stolen. email that provides the entry point for the criminals. but only if it can Emails are typically sent as plain text across However one familiar feature that VIPole shares with other be properly networks, making them easy to eavesdrop once a popular apps is ease of use. Miller continues, “An effective implemented, network has been compromised. Private system must not complicate communications, and it must individuals are the least likely to be security-aware, effectively provide all the tools needed within a single e2e encrypted making them easy targets. Home WiFi networks platform. And, obviously, it has to have the ability to facilitate managed and with poor security; “man-in-the-middle” attacks external communications with clients within a secure easily used. trapping unwary users attempting to connect to environment.” free WiFi hotspots in public spaces or malwareRather than relying on usernames and passwords, algorithms ensure infected downloads are all used to listen out for key words and phrases that messages remain secure, that the sender and recipient are who that alert the crooks to potential property transactions. they appear to be and that nobody else is listening in to that The modern-day ubiquity of email was driven by its convenience, and conversation. End-to-end encryption ensures that nobody – not even the many people now use instant messaging for exactly the same reason. software provider - is able to break into conversation or create fake IDs Popular apps such as WhatsApp are convenient and easy to use, and or messages. “That,” comments Christopher Miller, “Stops the Friday as a bonus, many are increasingly using encryption techniques to Fraudsters dead in their tracks.” prevent messages being intercepted. Encryption encodes network traffic But what about the potential legal implications of sharing confidential so that only sender and recipient can unscramble the original data. client information over a public cloud service such as WhatsApp? VIPole Given the apparent benefit, it may appear odd that the business world has a simple solution; it offers an on-premise package that enables appears slow to catch on to this important development. However there firms to run the service completely in-house on their own server to create are reasons for this, as VIPole’s head of development, Christopher Miller their own private, strongly encrypted messaging eco-system. Firms are explains; able to connect clients to their secure system as easily as sharing an “Encryption is a powerful weapon against fraudsters, but only if it can be email address, but without compromising security. The VIPole client properly implemented, effectively managed and easily used. End-to-end software is available as a free download for all platforms (iOS and (e2e) encryption of traffic is the minimum requirement, but many Android, as well as Linux, Windows and Mac OSX), so anyone can start messengers do not meet this standard. Of those that do claim to be using it without having to buy equipment or install complicated software. e2e, question marks remain over how confidential data transiting across Moving to encrypted communications brings another benefit for legal third-party cloud servers actually is. For example, WhatsApp claims to professionals. With the greater publicity around conveyancing fraud be e2e encrypted, but admitted last year that it shares user data with creating anxiety in the market, the ability to guarantee secure parent company Facebook to profile users for marketing purposes.” communications with its clients and restore confidence, gives it an In 2013, VIPole, a UK-based software developer, set out to develop an obvious marketing advantage, as well as closing the door firmly on the instant messaging system that combined ease of use with enterprisecriminal aspirations of the Friday Fraudsters. SurreyLawyer 29
Legacy
Canine Care Card Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved four-legged friend without an owner. Thankfully, Dogs Trust, the UK’s largest dog welfare charity, offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, it also helps to ease the minds of friends and family during what is already a distressing time. Over the past 12 months, Dogs Trust has taken in a whole host of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes. One of these such dogs is ten-year-old Jack Russell Terrier, Buddy who was taken in by Dogs Trust Glasgow when his owner sadly passed away. When he first arrived at the rehoming centre, Buddy was understandably missing his home comforts and hoping to find love again with a new owner. Thankfully, the team at Dogs Trust Glasgow were able to provide the adorable boy with a home away from home while he awaited his furry-tale ending. Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving home. After being lovingly cared for by staff at Dogs Trust Glasgow, Buddy is now starting life with a new family, who have even registered themselves on the Canine Care Card scheme.
Sarah and Buddy the dog.
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 Buddy and many dogs like him 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.”
Who’ll keep him happy when your client’s gone? We will – as long as your client has a Canine Care Card. It’s a FREE service from Dogs Trust that guarantees a bereaved dog a home for life. At Dogs Trust, we never put down a healthy dog. We’ll care for them at one of our 20 rehoming centres, located around the UK. One in every four of your clients has a canine companion. Naturally they’ll want to make provision for their faithful friend. And now you can help them at absolutely no cost. So contact us today for your FREE pack of Canine Care Card leaflets - and make a dog-lover happy.
Call
020 7837 0006
Or e-mail
today
ccc@dogstrust.org.uk
Or write to: Freepost RTJA-SRXG-AZUL, Dogs Trust, Clarissa Baldwin House, 17 Wakley Street, London EC1V 7RQ (no stamp required) Please quote “333339”. All information will be treated as strictly confidential. This service is currently only available for residents of the UK, Ireland, Channel Islands & the Isle of Man
www.dogstrust.org.uk Registered Charity Numbers: 227523 & SC037843
30 SurreyLawyer
Probate
Ilott v Mitson The role of insurance
The landscape surrounding the legal framework that currently applies to disappointed beneficiaries has been the source of much recent media attention as a consequence of the landmark judgment from the Supreme Court in the Ilott v Mitson case. While this case has been ongoing, there has been a noticeable increase in the number of Personal Representatives seeking insurance cover for potential claims under Inheritance (Provision for Family and Dependents) Act 1975 (the Act). So has the judgment from the Supreme Court clarified the position with regard to the application and scope of the Act and how will it affect insurers’ willingness to offer this type of cover?
cover is required for such claims, extensive underwriting would need to take place and if the insurer is comfortable with the risk, it will have implications on the level of premium. Consequently, most policies provide cover more for the comfort of the Personal Representatives ie where there are no known potential claimants but where there is a desire to distribute the estate more expediently and not to wait for the time for making claims under the Act to expire. Under the Act a potential claimant has six months from the date of the grant of representation to make their claim but also has an additional four months to serve papers on the Personal Representatives, so it could be up to ten months before an estate becomes aware of any claim. It is worth noting that the Court has discretionary powers to permit applications after the six-month period, so the potential period may be in excess of the ten months.
By way of an abridged reminder, Melita Jackson died in 2004, leaving the majority of her estate (approximate value of £500,000) to three charities – RSPCA, RSPB and Blue Cross. She was estranged from her daughter, Heather Ilott, and had omitted her from her will (leaving two side letters explaining her decision). Consequently, Mrs Ilott made a claim under the Act and received £50,000. Mrs Ilott sought to appeal that decision and a cross-appeal by the charities quashed this award. Mrs Ilott took the case to the The repercussions Court of Appeal, which overturned the judgment and of this latest eventually awarded her the funds to purchase her decision will be far property and a capital sum on top (approximately reaching and £140,000 and £20,000 respectively). The Supreme Court has now set aside the Court of Appeal’s insurers, like many decision and reinstated the original £50,000 award. others will be
So what options are there now for the legal profession? It very much depends on whether there are known potential claimants under the Act or not. While the Supreme Court’s judgment provides some guidance regarding claims and quantum under the Act, the decision and the comments of the judges demonstrate just how wide the court’s options are when considering considering the such claims. In light of this uncertainty and what has The repercussions of this latest decision will be far been described as the unsatisfactory state of the reaching and insurers, like many others will be implications of the present law, giving, as it does, no guidance as to the considering the implications of the judgment. judgment. factors to be taken into account when considering Previously, as a rule, insurers were wary of such claims under the Act, insurers will continue to be cautious when indemnifying estates where a known individual, in the specified considering cover in respect of known potential claimants. classes of potential claimants under the Act, had been omitted from a will. This was especially true if the individual omitted is a child of the Where there are no known potential claimants though, help is more deceased. So, while this type of cover was difficult to arrange prior to readily available. In many instances it can be difficult for a Personal the Ilott case, it has become even more difficult to secure since. Representative, especially a professional one, to be certain that there This is understandable, given that a policy will typically seek to protect the insured (normally the Personal Representatives but can be extended to include the residuary beneficiaries as well) from the moment a claim is received by the insurer, whether it has merit or not. As such, and as can be seen starkly in the Ilott case, the time involved and costs of defending such a claim are not insignificant. While this is the first claim under the Act to reach the Supreme Court, litigation and settlement costs can be financially onerous, especially after the distribution of the estate. In light of the above, an insurer has to consider the approach in relation to the extent of cover a policy will provide. For example, if a deceased had remarried and the new spouse had children from a former marriage, might they be entitled to claim because they were treated as the deceased’s child or were being maintained by them? Insurers might decide to exclude claims by them from the policy or if
are not individuals who would be entitled, or believe they should have been remembered, even if there is no suggestion of a potential claimant. As a result, some professional Personal Representatives in particular, can be reluctant to allow funds to be distributed within the ten-month period. Peace of mind policies that allow early release of funds to beneficiaries and remove the risk to Personal Representatives of personal liability in the event of a successful claim under the Act, can provide comfort and certainty in uncertain times. Insurers will continue to be relatively comfortable with this type of risk and such insurance solutions will continue to be available, notwithstanding the Supreme Court’s judgment.
Neil Kevan Trust & Probate Underwriter, Legal & Contingency Limited
SurreyLawyer 31
Book Review
COMPARATIVE COMPETITION LAW Edited by John Duns, Arlen Duke and Brendan Sweeney Research Handbooks in Comparative Law; Series Editors: Francesco Parisi and Tom Ginsburg
ISBN: 978 1 84980 419 6 (book) 978 1 78536 257 6 (ebook) Available as an eBook This book is available electronically in the Elgaronline Law subject collection DOI 10 4337/9781849804196 www.e-elgar.com www.elgaronline.com
A WELCOME EXPLANATION OF THE INCREASING GLOBAL RECOGNITION OF COMPETITION LAW INTERNATIONALLY An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers For this excellent new handbook, we have described it to the publishers, Edward Elgar, in the following succinct way:
from the United States of America, Europe, Japan, India, China, South America, and Australia.
“Comparative Competition Law provides a welcome scholarly examination of the key global issues that impact the way law and policy operate, as the proliferation of anti-trust regimes over the past 25 years has led to a global recognition of competition law."
Each of the contributors is to be congratulated on providing an interwoven patchwork synthesis of how current competition issues are dealt with today by examination of the contrasting views and approaches taken in recent years.
And this book is exactly that - a welcome new compilation of research views on international competition law which will be a book to treasure for legal academics, especially since the dramatic events in the summer of 2016!
We felt that the book examines, in a most useful academic style, all these differing approaches which have been taken in the different major jurisdictions covered.
The editors and contributors examine in excellent academic detail (to be expected of all Elgar publications) the key global issues which we face and the way law and policy operate as our international community becomes more integrated legally with the growth of the number of anti-trust regimes since the early 1990s. This research handbook on “Comparative Competition Law” was specially commissioned by Edward Elgar. The original chapters on descriptive material are taken from legal academics, researchers and commentators across the continents including contributions
And the title does so at a time when the original aims behind the creation of the European Union are facing a major new test for its future direction in the second decade of the 21st century as the fourth industrial revolution involving information technology develops and Britain prepares to leave membership of the EU which will, no doubt, influence much legal thinking for years to come. The publication date is stated as 2015 and the book is available in both print form and as an online version.
BEWIGGED AND BEWILDERED?
A GUIDE TO BECOMING A BARRISTER IN ENGLAND AND WALES, 3rd EDITION By Adam Kramer and Ian Higgins ISBN: 978 1 50990 536 2 HART PUBLISHING, BLOOMSBURY www.hartpub.co.uk
WHAT MODERN BARRISTERS DO AND HOW WE GET THERE TO DO THE JOB IN 2016: THE BEST AND MOST REALISTIC GUIDE AROUND An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Let’s face it, the Bar of England and Wales can always welcome additional explanations of what we, as barristers, do and how we train and qualify! Of all the current books in the marketplace, “Bewigged and Bewildered” remains the top choice for its clarity of expression and relevant detail for the budding barrister in our view. We have reviewed this book before so we have “form” (or “previous”) in supporting the way Adam Kramer and his new colleague, Ian Higgins, have reviewed the current parlous state of barrister recruitment in 2016. And there is (as always during the whole of my career anyway) the regular dire warnings about what it is really like to be a practising barrister in 21st century… as it was in the last century when I was called: things have not changed as much as some would think! And today, it is probably just as hard or harder to get to practise and to continue to practise as a specialist advocate in a more complex legal setting. The authors say “these are turbulent times for the Bar”. How right they are. The times are turbulent now as indeed they were in the 1960s and 1970s when I started on the road to the Bar. The need to have access to independent means of support remains the same prerequisite for many. But, sadly, it’s actually more difficult today because of two factors: lack of legal aid and bad pay levels at the junior Criminal Bar which have created a crisis for the Young Bar because you cannot achieve the sort of training and experience which most of us enjoyed in the past. Kramer and Higgins say that there are these many hurdles to overcome although the rewards, “intellectual and lifestyle, quite apart from financial” are “well worth it”. And that is the key because it is about perseverance. So don’t be put off by any
preconceptions concerning the “type” of people who become barristers, or by not knowing the processes involved. The authors describe their excellent practical guide in the following way saying that “misunderstandings and jargon prevent many from seriously considering a career as a barrister in the belief that such a career is not for them or that they are not for it. Others know that they might want to become barristers but not how to go about it, or just want to know more about this somewhat mysterious profession”. They give us some of the answers. They clearly, but informally, explain the traditions, terminology and institutions of the Bar, and what it is actually like to be a barrister. With this aim, several barristers practising in different specialist fields describe in detail a typical week in their life which is invaluable as a pen portrait of what we do. Also, they give advice on how to be accepted into, fund and survive the various academic and other stages that precede qualification as a barrister, including work experience, Bar School and “pupillage” which is our name for the barrister's apprenticeship. The book goes on to explain how to transfer to the Bar, for the benefit of solicitors, overseas lawyers or those in a non-legal career. The authors say that the third edition is fully updated to take account of the most recent changes to the Bar, training for it, and the process of recruitment to it and it is the most fundamental purchase for any person wishes to practise as a modern barrister-at-law in the 21st century. Thank you, and as the authors say “Good luck!”
SurreyLawyer 33
Book Review
“RESEARCH HANDBOOK ON EU LABOUR LAW” Edited by Alan Bogg, Cathryn Costello and A.C.K. Davies ISBN: 978 1 78347 111 9
Edward Elgar Publishing www.elgaronline.com
KEY ISSUES AND MAJOR TOPICS IN EUROPEAN UNION LABOUR LAW, CRITICALLY EXAMINED An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This is one of the latest titles in Edward Elgar’s ‘Research Handbooks in European Law’ series – and a timely publication it is, especially for UK scholars and practitioners. It may – or may not – be a coincidence that in the few months since Britain’s historic Brexit decision, there have been spectacular instances of labour unrest, with, primarily transport unions conducting frequent strikes, thus inflicting considerable damage to the British economy in general and to that of London in particular. Happily for those now seeking rational perspectives on labour matters, the three editors of this book, all from Oxford University, have brought together the work of almost two dozen international scholars, all offering specialist expertise across a wide range of issues pertaining to this still relatively young and certainly complex discipline. The result, as the editors reassure us, is a ‘state of the art’ assessment of EU labour law in its many facets. The book’s two dozen or so articles are grouped under four headings: cross-cutting themes… individual employment law…. collective labour law… and equality. It is fair to say that each individual essay or article delivers thoughtful and insightful analysis of the topic it concerns. Of the many themes and analyses which permeate the book there are several which should generate immediate interest among UK readers. The first two chapters, for example, assess the relationship between EU labour law and national law. Also examined is the
relevance of EU labour law to other bodies of EU law, from human rights to the law of the internal market, with its worryingly inherent threat to the autonomy of Member States, which, understandably, has caused apprehension and disquiet in the UK. But what now after Brexit? The problem here is that the bulk of the book was written shortly before this seismic change occurred. So the obvious conclusion is that Brexit is still an unknown quantity and that therefore it’s too soon to tell. Assuming, however, that Brexit does go ahead, which now seems a certainty, the editors believe (at this early stage) that its effect on EU labour law is hard to predict. They do, however, allude to such consequences as ‘downward pressure’ on standards and wages and possibly some erosion of the European social model. The detailed discussions surrounding these concerns are indeed fascinating, which is why scholars and practitioners involved in cross-border labour issues will find this volume a stimulating and useful compilation of commentary and reference, bearing in mind that the UK will still be in the European Union until at least 2019, or beyond. Those doing background research in this area of law will especially appreciate the wealth of references contained in the extensive footnoting throughout. The publication date is cited as at 2016.
“CONTRACT FORMATION” Law and Practice 2nd Edition
By Michael Furmston and G J Tolhurst Contributor: Eliza Mik ISBN: 978 0 19872 403 2
Oxford University Press www.oup.com
“PERHAPS THE MOST LITIGATED AREA OF CONTRACT LAW”: FORMATION CLEARLY EXPLAINED AND CRITICALLY EXAMINED An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers What exactly – is a contract? When is it not a contract? What is an offer and when and when is it not? And can you explain the possible subtleties of an invitation to treat? As a practitioner, you will no doubt have the answers. But, as this important new book from Oxford University Press reveals, said answers may loom as much more complex than you might have thought at the outset of a case. As authors, Michael Furmston and Greg Tolhurst ably assisted by Eliza Mik, have warned, ‘practical problems about contract formation continue to trouble lawyers, professionals and the court.’ Pressing home the point, they cite the example of a case where, on undisputed facts, the High Court, Court of Appeal and the Supreme Court came up with three different answers, of which all, naturally, have been incorporated in the text. For the law student as well as the experienced practitioner, contract formation is obviously the first step and the first line of enquiry in contract law. Often regarded as the easier and indeed most entertaining aspect of contract law, contract formation, as the authors remind us, is ‘perhaps the most litigated area of contract law’ and that, notably, the issue which occupies most of the court’s time is that of agreement. The requirements of agreement therefore emerge as the main concern of this book, which scrutinizes the topic of contract formation from the perspective of principle. Note that this is the second edition of what has become -- in the six years since the first edition was published -- the definitive work in this specific area of law. Particularly useful
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is the addition of the chapter on consideration. The rules governing the formation of contact law, say the authors, are easy to state, but difficult to apply, probably because typically, lawyers are not brought in at the early stages of contract formation. Although the book focuses on English law for English practitioners and discusses the leading English authorities, it also contains comparative case law, as the principles of contract formation are similar across many borders. Throughout its more than 450 pages, the book covers a vast range of topics and issues pertaining to contract formation, from the concept of agreement… to offers and invitations to treat… to termination and revocation… to offers and to acceptance. Also covered are online transactions, auctions and tenders, letters of intent, conditional contracts and much more besides. For practitioners in urgent need of advice and clarification on any number of matters relating to contract formation, the book is easy to navigate, with a detailed table of contents, useful index, numbered paragraphs throughout and the extensive footnoting. Also available are tables of cases, European Union legislation and national legislation, plus a table of international treaties, conventions and other instruments. Here then, is an authoritative text that excels as a work of reference – just the thing for embattled practitioners bemused by this surprisingly complex subject. The publication date is cited as at August 2016.
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