Surrey Lawyer Winter 2017 by Benham Publishing Limited

Winter Issue 2016/17

SurreyLawyer MAREK BEDNARCZYK

On Clinical Negligence (see Page 11)

Inside this issue:

■ Finance ■ Probate ■ Conveyancing ■ Legacies ■ Free Wills ■ Awards

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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

List of Officers

President’s Jottings

CEO Report Local Issues

8 -11

Awards 12-14

Award Winners

Get IT in WRITING

Management

ADVERTISING AND FEATURES EDITOR Anna Woodhams

Local News

STUDIO MANAGER

Articles

John Barry

ACCOUNTS Joanne Casey

Protecting Your Wine Collection How To Say NO Politely

MEDIA No.

Cyber Crime

1469

PUBLISHED

Cyber-Crime Attacks Report

December 2016 © The Surrey Law Society - Benham Publishing

Relationship Manager’s Report, December 2016 News

LEGAL NOTICE

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

Who’s looking after Mum?

Genealogical research- The secrets of locating missing heirs

All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice. COVER INFORMATION The cover image: The Hive, Kew Gardens

Copy Deadlines

3rd March 5th June 4th September

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

Arbitration and Much More Private Client

Events 23

LEGAL CUP 2017- Open for Entries Finance

24-25

Further tax changes are on the horizon for property investors Wines

Wine of the Season Technology

27 28 29 30 31 31

Spring 2017 Issue Summer 2017 Issue Autumn 2017 Issue

DGT-10 Year Anniversary Family

DISCLAIMER The Surrey Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation.

What are the benefits of Regional working?

Accountancy

© 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.

LEAP enhances technical support and grows team. Conveyancing Focus 2017 - The Year of the Rooster How to be a successful commercial property lawyer v1 30-11- 16 eConveyancing starts to take shape Environmental searches: a simple solution to the complex issue of flood risk Groundwater flood risk to property: costly and misunderstood Free Wills

Free Wills Month is an opportunity Legacies

A History of Pioneering Cancer Treatment Book Review

“BREAKING LAW” The Inside Guide to Your Legal Rights & Winning in Court or Losing Well BREAK CLAUSES AN OFTEN OVERLOOKED AREA OF LEASES AND CONTRACT LAW: SO WELL EXPLAINED BY WARWICK AND TROMPETER IN THEIR NEW SECOND EDITION FROM JORDAN SurreyLawyer 3

Officers

KEY OFFICERS

COMMITTEE MEMBERS

LAW SOCIETY COUNCIL MEMBERS

PRESIDENT

DANIEL CHURCH

MARK GOUGH

TWM Solicitors LLP.

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

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

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

VICTORIA CLARKE

18 Station Approach, Virginia Water GU25 4DW

Watson Thomas Solicitors

DX 94652 Virginia Water

SUB COMMITTEES

MARALYN HUTCHISON

QUO VADIS (Strategic Planning) Daniel Church Nick Ball James Scozzi (Chair)

Bryslan House Upper Street 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

CONVEYANCING & LAND LAW Win Cummins (Chair) Gary Score* Maralyn Hutchinson Matthew Truelove* Ken Seakens* FINANCIAL Nick Ball (Chair) Kieran Bowe James Scozzi Ken Seakens*

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

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

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:

£95 per person, per year.

Corporate Subscriptions:

(20+ fee earners) £1,800 per year

Solicitor

(not in private practice) £60

Solicitor

(not practising) £35

Honorary Membership:

free

Associate Membership:

free - no voting rights

4 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 Winter 2016 Brexit, Trump is POTUS, Gough is POSLS. Perhaps we are truly at the gates of the end times. Well, no. We are in the midst of the most prosperous and creative era in the history of mankind when, it seems, anything is possible.

o – these are truly amazing times to be alive. We are able to choose pretty much whatever we want as our response to the events around us.

That said, we seem to have chosen badly in some areas – our focus is on what the press call “free movement” although so often they don’t know what exactly it is that they don’t want to move. But the sad thing about this focus is that we are missing the wrongs that are lying at our feet. Surrey Law Centre Yes, our profession is an economic activity - in the same way that being a doctor or nurse is an economic activity - but surely it is more than that? I have been involved in providing legal services which are free at the point of use for the best part of 20 years and during that time I have seen what was a good quality state backed service for those in need disappear in all but name. Make no mistake, civil legal aid is by and large a thing of the past. And yet, I am immensely proud to see that in Surrey alone, through the work of Surrey Law Centre, we have 117 volunteer solicitors, barristers and other lawyers providing free advice to the many people who so desperately need it. A Law Centre is a specific kind of charity – it differs from the Citizens Advice Bureau as it seeks to provide the next level of support and Surrey Law Centre takes many referrals from the 9 CABx across Surrey. And it does immensely important work – one Surrey resident emailed us: “Thank you so much to (our volunteer) for the legal help he has provided to me. He is brilliant, he has turned things around and I now have a serious chance of saving my home. Without you and him I would not have stood a chance.” The difference is that CABx are funded from various sources, but these usually include local authority funding. Surrey Law Centre has no public funding at all. It relies on donations from law firms and individuals and the magnificent efforts of all those who take part in the annual sponsored walk which has raised over £11,000 per year in recent times. (And at this stage I would like to thank the Estate of the Late Donald Dean, without whose incredibly generous legacy, Surrey Law Centre would not have survived the last three years). The only other funding that the Law Centre gets is from grant making bodies such as the London Legal Support Trust and the Access to Justice Foundation. As you no doubt have gathered, I have been involved with Surrey Law Centre for many years – as a trustee and now as its de facto pro bono CEO. And I have chosen Surrey Law Centre as the charity of my presidential year.

Sutton Mental Health Foundation It was a close run thing – I am also a trustee of Sutton Mental Health Foundation. SMHF is a fantastic charity that provides support for those who have had experience of mental ill health and I would encourage you to look further at what they do. I have been to training courses and spent time with the staff and users of the service and have been amazed and humbled by the ability of people who suffer terribly to overcome what life has thrown at them. SMHF is partly funded from the public sector - NHS and local authority – and, as you can imagine, is under pressure on that front. SMHF is seeking a new trustee from the legal sector and I would commend that fantastic charity to you. Being a lawyer As they say in Scotland, our judges have been murmured. Or scandalised as we used to call it, until the offence was abolished in 2013. “Criticism of a judge's conduct or the conduct of the court, even if strongly worded, is not a contempt provided that the criticism is fair, temperate and made in good faith, and is not directed to the personal character of a judge or to the impartiality of a judge or court” . That law was an affront to freedom of speech and so was repealed. What is interesting is that when we leave the EU, and if the HRA is repealed and we withdraw from the ECHR, parliament can reintroduce the offence of scandalising a judge. But don’t hold your breath. Regardless of ones views on Brexit, (and why, oh why, isn’t it called UKexit? Or do we simply not take any notice of our friends in Northern Ireland?) as lawyers we should be appalled by the press reaction to the High Court’s decision on Article 50. And we should be appalled by the non-reaction of the Lord Chancellor. We may no longer have a legal aid system, and we are heading towards a similar NHS, but the judiciary is the last bastion against the tyranny that can emanate from a government. We, particularly us lawyers, must not be afraid to tell people that the government, as well as the people, is subject to the rule of law. Brexit and Trump we can deal with - the erosion of the rule of law we cannot and should not tolerate. Make a noise about it. So I would encourage you to do these three things:• Support your local legal advice centre (not just SLC); • Talk about mental health;

• Be loud and proud when defending the rule of law. ■

MARK GOUGH, SLS President December 2016

SurreyLawyer 5

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Editorial

CEO Report Winter Issue December 2016 By the time you read this the festive season will be all but over and a new year will stretch before us all, bring much change and new opportunities. I hope you all managed to get a little peace and quiet to recharge your batteries and look forward to seeing you all at some of the CPD and Social events coming up in 2017.

ollowing the AGM in November we now have a new President Mark Gough, a new Vice President - James Scozzi and a new Deputy Vice President – Victoria Clarke. That means that we have an excellent presidential succession through to November 2019! However (and there is always a ‘however’) we are seeking new members to join the SLS Committee to help us direct and strengthen the Society in the coming years. We meet just 4 times each year plus the AGM so the role is not too onerous but we do encourage our Committee Members to get involved in responding to consultations and reform proposals for the professions via our Sub Committees. If you would like to find out more please email me sueseakens@surreylawsociety.org.uk and I can provide you with details of the role. We invite prospective members to attend at least 2 meeting prior to application so that you can find out more about our work before deciding if the role is for you or not. We are delighted to confirm that, despite the tough times we have all experienced in the past few years, the Society is holding its own on both financially and strategically. Both our membership and our CPD programme have come through relatively unscathed and have actually increased in the last 12 months. My thanks to everyone who

has worked hard to make this happen, especially my intrepid and dedicated assistant Elaine Jacobs whose role underpins everything the Society does for its Members. As the dust starts to settle on the SRA’s changeover to Continuing Competence we are confident that our CPD programme for 2017 will help you to demonstrate your commitment to competence. As you are no doubt aware from November 2016 you are required to demonstrate competence in every aspect of your daily work as a legal practitioner, not just the black letter law. We will be talking Cybercrime, Data Protection, Risk Management, Arbitration, Fraud and Money Laundering as well as the regular Property, Private Client, Commercial Business and Family Law topics. A list of the main courses accompanies this issue of Surrey Lawyer but you will also find information on the website at www.surreylawsociety.org.uk and I shall of course be sending my regular email alerts as booking deadlines approach. As always we will be bringing you top speakers and latest developments all at competitive fees and in local Surrey venues. SUE SEAKENS, CEO Surrey Law Society t: 01344 860830 e: sueseakens@surreylawsociety.org.uk

SurreyLawyer 7

Local News

Sutton Mental Health Foundation Seeks Lawyer as Trustee Mark Gough (newly installed President of the Surrey Law Society) is shortly to retire as a trustee of Sutton Mental Health Foundation, where he has served for the last eight years. The charity would like to appoint another lawyer as a trustee in his place. Mark has made a great contribution to the charity, based on his experience in legal practice, his previous voluntary work with advice centres and his understanding of mental health and resilience. Whilst we have sometimes sought specific advice, his main contribution has been across the full range of the charity's business, including contracts, employment law, planning issues and intellectual property, as well as issues specific to mental health. Having a lawyer on board has provided assurance that we are conducting our affairs responsibly and legally SMHF is based in the London Borough of Sutton. It is a company limited by guarantee and a registered charity working mainly with people who have experience of severe mental distress. Its focus is on recovery, mutual support and developing resilience and there is a strong emphasis on user-led activity and supporting people with experience of mental health services to represent themselves to service providers.

Turnover is about £200k a year and we have about ten employees as well as a group of both voluntary and paid peer support workers who operate on a sessional basis. We also offer training in mental health awareness and mental health first aid to employers and voluntary groups. Our current challenges include: • building up our fundraising capacity to replace dwindling public funding • equipping more people to apply their experience of mental distress to supporting each other • putting our training activities on a proper business footing If you would like more information, please contact David Jones on 020 8643 5438 or by email to dej7ld@gmail.com ■

MENCAP LEGAL PANEL LAUNCH Mencap has launched a legal panel comprised of experts from five of the best corporate law firms in the UK. This legal panel, called Rights Here, Rights Now, will work together with the Mencap team to improve the lives of people with a learning disability and their families. Whilst Mencap are proud of the impact that they make to individual lives on a day to day basis, the demand for legal support and advice has become an area that needs to be tackled. The widespread cuts to legal aid and the closures of charitable legal services has had a significant impact on the number of people with a learning disability and their families accessing quality legal advice and support. Rights Here, Rights Now will provide a greater level of expert support to a larger group of individuals and be able to better identify which individuals would benefit from legal advice and possible representation. The panel will tackle the significant and complex issues that people with a learning disability and their families face. This will include appealing benefit decisions, securing Special Education Needs (SEN) support for a child or in more serious cases dealing with a deprivation of liberty dispute or misuse of the Mental Capacity Act and seeking redress for historical abuse. 8 SurreyLawyer

Mencap sees the key role of the panel being one of triage, whereby panel members will review an individual’s situation and outline what possible legal tools are available to them. It will be Mencap’s role to present the guidance to the individual and where necessary support them in seeking legal representation. Jan Tregelles, CEO of Mencap, said: “Rights Here, Rights Now is a significant milestone in Mencap’s history. We are committed to providing the best possible support to everyone in the UK with a learning disability, as well as their families, and now we are in a position of being able to offer top quality legal advice and support to some of the families who need it most. We are enormously grateful to those firms who have already committed to our new legal panel and urge other companies to volunteer their services and truly make a difference to those with a learning disability who may find themselves in difficult and distressing legal circumstances, through no fault of their own.” Mencap are encouraging other legal firms to join Rights Here, Rights Now. ■ For further information contact: Rossanna Trudgian, Head of Campaigns and Activism at Mencap Rossanna.Trudgian@mencap.org.uk.

Local News

New Hart Brown Partner presents cheque to local charity Skillway Emily Wiggins has been appointed Partner at Hart Brown Solicitors heading up the Trusts and Estate Department in Godalming. One of her first roles in this new position was to present a cheque to Godalming charity Skillway . The 2016 Godalming “Proms in the Park”, a GO Godalming Initiative, saw staff at Hart Brown raising money for Skillway, a Godalming charity that raises the self-confidence and motivation of teenagers through apprentice-style teaching of manual skills in their workshops by skilled craftsmen. Despite the rain on the day of the Proms, everyone enjoyed the music supplied by Massed Brass Bands of Farnham and Haslemere under the baton of David Wright supported by members of Godalming Operatic Society. Staff from Hart Brown manned a Pimms tent, and raised nearly £100 from the sale of drinks to visitors at the “Music in the Park” concert. The cheque was presented to Vivien Gillman and Greg Bleach from Skillway by Partner Sharon Powell and new Partner Emily Wiggins. Also attending was Heather Pollard from Go Godalming, Richard Jeffery a staff tutor from Skillway, and Libby Colbran from Hart Brown. This was Emily Wiggins’s first role in her new position as Partner. Emily has worked at Hart Brown for twelve years, specializing in inheritance tax planning, the administration of estates, trusts, wills and lasting powers of attorney. She is the Honorary Solicitor for the Cranleigh South Eastern Agricultural Society, handling any legal issues that arise for this charity. Away from the office, Emily is a keen horse rider,

and has been sponsored over the years by Hart Brown in competitive show jumping and eventing. Emily and her horse Basil have been members of the Elstead Riding Club and have competed numerous times at Hickstead, Blenheim and in the British Riding Clubs National and London and South Eastern Championships. Commenting on her new role, Emily said: “the biggest change to my role will be attending Partner strategy meetings and the contribution I can make moving forward is very exciting.” To find out more about Hart Brown Solicitors visit www.hartbrown.co.uk Skillway is a local community charity and Charitable donations such as this one from Hart Brown ensure the continuation of the valuable work that Skillway undertakes. Forty students per term, many of whom are at risk of being excluded from school, benefit from learning new skills, ranging from woodwork, metal work, art and crafts and jewellery making, in the Centre’s workshops. The Centre relies on volunteers to teach the young people, and the money will go towards the running costs of the Centre and purchase of materials.

HFS Milbourne makes it a straight eight! HFS Milbourne, Guildford’s leading financial services company has strengthened its relationship with Surrey lawyers by renewing sponsorship of the Surrey Law Society’s (SLS) Continuing Professional Development (CPD) programme for an eighth consecutive year. The CPD programme helps lawyers continue legal education by addressing learning and development needs and forms an integral part of the continuing competence requirement. In addition to sponsorship of specific CPD workshops throughout the year, HFS Milbourne runs complimentary ad hoc events for SLS members, most recently hosting an investment seminar featuring Stephanie Flanders, chief market strategist Europe at J.P. Morgan Asset Management and former broadcast journalist. Daniel Church, President of Surrey Law Society said, “HFS Milbourne has been an enthusiastic sponsor of SLS for many years and the investment seminar last year gave useful insight into a dynamic market and was particularly well received.

allows us to widen the scope of what we are able to do. We are therefore very grateful for their continued support.” “Our longstanding commitment to the SLS helps us to foster connections with local lawyers which are essential to our business,” said Rod Milne, joint managing director HFS Milbourne. “It’s a mutually beneficial relationship and we are delighted to be in a position to support SLS for a further year.” HFS Milbourne Financial Services is authorised and regulated by the Financial Conduct Authority (FCA) and specialises in wealth management, pensions, finance on divorce, mortgages, employee benefits and corporate financial planning. Further information: www.hfsmilbourne.co.uk tel 01483 468888

“We are always looking for ways to offer enhanced services to our members and the generosity of companies like HFS Milbourne

SurreyLawyer 9

Local News

Dealing with Stress by Eric Farnworth

This is personal. I have been asked to write an article for “Surrey Lawyer” about Maytree, a sanctuary for people in a suicidal crisis, because I am a solicitor and a Maytree volunteer. Why would Surrey Lawyer want an article touching on the taboo subject of suicide? Because lawyers (and others in highly responsible professions) are more likely than the general population to end their lives by killing themselves. Why? Well, in my personal experience, because of stress. I probably don’t need to tell anyone reading this article that the Law is a stressful occupation. We have high standards; we are trained and required to abide by them; clients are demanding, often unreasonably so; we need to give an excellent service; we need to meet deadlines (and billing targets!). Our employers are demanding. We often work long hours with excessive workloads. The more conscientious we are the more the pressure “gets” to us. In my years in the City (before a long overdue crisis followed by a couple of years trying to leave the Law – an attempt to qualify as a primary school teacher, work as a gardener, and working in a supermarket - and then my return to the Law but half-time and in the leafy suburbs of southwest London so I could commute by bike rather than by SouthWest trains and London Underground) I probably had to take time off work a couple of times a year because I just couldn’t cope with the pressure. I would have to stay in bed - I just couldn’t get up. When awake I was angstridden, writhing in bed with no concept that I had a future, that I would ever feel better. Depressed? Certainly. Suicidal? Yes. Stress leads to depression. Depression, if untreated, will lead to suicidal feelings and

thoughts, which in turn can increase in severity and lead to a suicide attempt or to an unnecessary death. I didn’t take time off work lightly; I struggled. I would lie in bed when the alarm clock rang, sweating, afraid to face the day. And of course I didn’t ‘fess up. I claimed ‘flu symptoms to explain my absences. Why wasn’t I upfront? Why didn’t I just say that I was stressed to the extent that I couldn’t continue? Pride, fear that I would be looked down on for not being able to cope in a competitive world. Law firms are small; our bosses are very literally our employers – they pay our salaries. It makes it more difficult to admit suffering from stress or depression. I have somehow come through all of this and along the way have been both a Samaritan volunteer and, for the last nine years, a volunteer at Maytree. Maytree was founded in 2012 by two Samaritans with decades of experience between them. Their experience befriending people who are depressed/suicidal highlighted the fact that those in a suicidal crisis need somewhere to go for respite, for time out from their usual daily lives, to take a step back, to reflect, and to try to understand why they have been brought so low. The Samaritans does not have accommodation; it has phone lines and volunteer befrienders. Maytree is a house in north London which provides the necessary sanctuary. I know it works. Many guests find their stays transformative, yet there is nothing complicated or mystical about what we offer: a safe place in a pleasant four storey terraced house for the seemingly very short period of five days (four nights); listening non-judgmental ears (the effect of just being listened to, without interruption or advice, of feeling heard, of feeling understood, can itself be hugely helpful), conversations with trained volunteers, staff members and other Maytree guests either generally round the kitchen table or 1:1 with a volunteer or staff member in dedicated “befriending rooms” as we call them. No medication, no diagnosing, a minimum of rules and regulations, freedom to come and go. There is no charge. Guests self-refer (by phone, email or via the internet link) or may be referred by family, friends or professionals. After initial contact there is likely to be a series of phone calls during which a caller can consider whether talking things through with Maytree volunteers/staff is helpful and whether therefore a Maytree stay would itself be helpful; and Maytree can also form an opinion as to whether there is a suicidal crisis and whether what Maytree has to offer will be suitable. Not all callers can be helped by Maytree - for example we recognise that we can’t help those currently mis-using alcohol or drugs. After a few phone calls we move on to an assessment - merely an indepth conversation with an experienced Maytree person. This will either be at the house for anyone in the London area, or will consist of two phone calls with different Maytree people if the “potential guest” is outside London. A decision is then quickly made as to the offer of a Maytree stay, which we hope will follow very shortly after the assessment. If this article strikes a chord either for you or for someone you know, please contact us (details below). If you would like to help our work as a volunteer or with a donation, again, please be in touch. ■ Eric Farnworth, volunteer at:Maytree (a sanctuary for the suicidal) 72 Moray Road Finsbury Park London N4 3LG 020 7263 7070 maytree@maytree.org.uk Volunteering: carol@maytree.org.uk Donations:iqtadar@maytree.org.uk

10 SurreyLawyer

Local News

Stacking The Deck-

Again! Marek Bednarczyk , Partner, Personal Injury and Clinical Negligence, at law firm Hart Brown, comments on the lack of action regarding litigation costs Earlier this year I looked at how changes to the costs rules since April 2013 had benefitted Defendants at the expense of Claimants. I pointed out that many had commented that successive governments had been increasingly pro-Defendant in their reforms. The announcement earlier in 2016 by the then Health Minister, Ben Gummer, seemed to be consistent with that view insofar as Mr Gummer had announced that the government intended to bring in fixed costs for all litigation cases worth £250,000 or less, including clinical negligence, and these reforms were to be introduced in October 2016. Well, the long awaited consultation on fixed costs initially set for the end of 2015, then put back to early 2016, is still no where to be seen! However, recent news reports seem to suggest that the government has reviewed the idea of fixed costs for clinical negligence cases and now intends to set the level for inclusion in the fixed costs regime for clinical negligence cases of £25,000 or less (not £250,000). What will actually happen? The consultation paper is still awaited and the government will need to review the outcome of the consultation before proceeding to introduce their reforms.

TAILORED REGULATION OF SPECIALIST LAWYERS PROTECTING THE CONSUMER SUPPORTING INNOVATION, COMPETITION AND GROWTH

The national Law Society has welcomed news of some reversal of thinking by the government, but the Law Society has highlighted the difficulties in imposing fixed costs in clinical negligence cases where complex medical issues are involved. Such a regime should only apply to modest value claims of £25,000 or less where liability has been admitted. Equality before the law is a fundamental principle behind our justice system. Fixed costs will save Defendants money at the expense of Claimants. In cases against the NHS, the State is ultimately responsible for paying successful Claimants and for paying for the defence in claims against NHS Trusts. The State has deep pockets. Hence, the playing field is not equal now and creating further costs obstacles for Claimants will make the current lack of equality even worse. Let us not forget that legal aid for clinical negligence cases was removed in April 2013, save for a small minority of cases. No legal aid and the introduction of fixed costs – do you now wonder why I title this commentary, “Stacking the Deck – Again!” ■ By Marek Bednarczyk Partner, Personal Injury and Clinical Negligence, Hart Brown

IT’S TIME TO THINK ABOUT THAT MOVE

To find out more about how your practice could benefit from transferring to the CLC, contact us on the details below.

www.clc-uk.org/Changing-Regulators or call 020 7250 8465 SurreyLawyer 11

Awards

Photo: Photo caption L-R: Alex Muir (Downs), Richard Cunningham (Downs) by Richard Dawson (MD of PSG), Dan Montagnani (MD of Groundsure) and broadcasting journalist Juliet Mann.

THEY'VE DONE IT AGAIN Surrey-based, entrepreneurial law firm, Downs Solicitors LLP, have done it again. Their Residential Property team has won another award for excellent customer service. The team were ‘Highly Commended’ in the category of ”Conveyancing Firm of the Year London & the South East” in the Law Firm services (LFS) Conveyancing Awards. The Awards, which were held on 15th September 2016 at the Vox Centre, Resorts World, NEC Birmingham, celebrate Conveyancing firms across the country that offer exceptional levels of client service and innovation. In order to win an award, firms must undergo a rigorous judging process, including a mystery shopping exercise and a telephone interview.

Commenting on the award, Senior Partner, Chris Millar, said "We are very proud to win the award which recognises the residential property team’s commitment and dedication to ensuring our clients receive the best possible service throughout every step of a transaction. Moving house is a very stressful time and our clients appreciate the personal approach the team takes with each and every transaction.”

The LFS Awards are firmly established as the event of the year amongst the conveyancing community and are highly prized because they are judged by a diverse cross section of industry peers and use a range of methods to test the claims of each entrant.

One of the initiatives that puts Downs ahead of the competition is their “Contract Ready” service. This means that instead of vendors waiting until an offer has been accepted on their property, Downs can provide them with the necessary paperwork at the time they decide to place their property on the market. In so doing this will ensure that once an offer is accepted a contract pack can be issued to the prospective purchaser’s solicitor within 24 hours. By getting the property “Contract Ready” it makes it more desirable to buyers.

Richard Cunningham who manages the Dorking Residential Property team and who accepted the Award on behalf of Downs, said “To be ‘Highly Commended’ in the London and South East category is a fantastic achievement because we were up against very strong competition. Our emphasis on listening to and understanding what our clients want is what is helping our business to compete successfully and succeed. The award is testimony to our staff’s dedication and commitment to providing a first class customer service throughout every transaction.”

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The award was presented to Richard Cunningham by Richard Dawson, the MD of PSG, sponsors of the category.

Awards

Photo: Young Lawyer of the Year Award

Photo: LawNet Mark of Excellence Award for Outstanding Customer Satisfaction and Customer Service

DOUBLE WIN FOR HART BROWN AT NATIONAL LEGAL AWARDS Hart Brown scoops award for best client satisfaction and customer service, plus the Young Lawyer of the Year trophy, at LawNet’s flagship event. For the second year running Surrey based law firm Hart Brown has been awarded the LawNet Mark of Excellence award for outstanding performance on LawNet’s independently assessed mystery shopping and client satisfaction measurement. It is awarded to firms based on internal performance and activity data looking for those who are most improved and proactive. In addition Commercial & Corporate solicitor, Danielle Collett-Bruce, was awarded with the Young Lawyer of the Year trophy. Nigel Maud, Chief Operating Officer said: “as a firm we strive to give the best client service that we can. We measure this using tools such as satisfaction surveys and mystery shopping. Having been benchmarked against national law firms we consistently beat the average score being achieved in the legal industry and are working towards being even better. To have the efforts of our people recognised by LawNet is wonderful for every member of staff.”

The awards which were held at Heythrop Park Resort, Oxfordshire, were presented by LawNet’s Chris Marston, Chief Executive and Helen Hamilton-Shaw, Member Engagement & Strategy Director and Shopper Anonymous Director, Jim Smith. Danielle Collett-Bruce was named the Young Lawyer of the Year – a hotly contested award and one with stiff competition. The award was given to her based on her understanding of the importance of putting clients first, communication and relationship building. A member of the Commercial & Corporate team, she is already leading on multi-million pound deals. “We are proud and thrilled that Danielle took the trophy home and delighted that her hard work and fantastic attitude has been recognised.” Commented Maud.

Joint Winners of the SLS Best GDL Student Award at ULAW

Photo: The Surrey Law Society's £250 Prize for Best GDL Student was shared this year by Samuel Hartman and Henry Ashwell. The cheques were awarded by Mark Gough on behalf of the Society. Our best wishes and congratualtions to them both.

Sarah Pooley, Centre Director of The University of Law Guildford, said: “Our annual awards evening is an opportunity to celebrate the successes of our LL.B, GDL and LPC students. We were delighted to welcome back our prize-winners and to congratulate them on their outstanding examination results. The evening would not have been possible without the support of the local legal community and we would like to thank all the sponsoring firms and organisations for their generosity.”

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Awards

Photo: Excellence in Business Development Award winners, Martin Searle Solicitors.

Martin Searle Solicitors win the Law Society Excellence in Business Development Award. Martin Searle Solicitors, specialists in employment and community care law, were winners of the Excellence in Business Development Award at the Law Society Excellence Awards Ceremony on 20 October 2016. The ceremony, hosted by BBC Radio 4 Today programme presenter Mishal Husain, saw ten firms and eight individual solicitors receive awards across the 18 categories, along with a further 21 highly commended entries. Law Society president Robert Bourns said: “The competition for these awards is becoming ever more fierce and each winner should be particularly proud of their achievement in the face of so many outstanding nominees. The standard they set is an example to the whole solicitor profession.” Those judging Excellence in Business Development were looking for business development initiatives in the legal sector, which both challenged convention and created greater added value. Martin Searle Solicitors were recognised for their innovative Services for Professional Deputies and Attorneys, which the judges said “stood out in the category”. The service provides specialist casework support and advice to experienced private client solicitors who have responsibility, as Deputies, for managing complex financial and care arrangements for vulnerable clients. The Law Society award

recognised that the firm’s innovative legal care offering “benefitted care professionals as well as the vulnerable and elderly they serve”. Cate Searle, Co-Director and Head of the firm’s Community Care Law team says: “Many private client solicitors will not have had to use public law principles to challenge decisions made by health or social services until the Care Act 2014 changed the landscape in April 2015. This is where my team are able to provide specialist Community Care Law support to add value to the services that Deputies and Attorneys offer their clients.” Founded in 2004, Martin Searle Solicitors now occupies six offices across the South of England. The firm has the largest non-legal aid community care law team in the South. Alice Macnair became the seventh member of the community care law team when she joined as a Trainee Solicitor earlier this month. Cate says, “Our team has diverse experience, including those with a background of working for Health and Social Services. We obtain excellent results and secure the best outcomes for our clients because we know how the system works, from the inside.”

Wealth & Finance Magazine Announces the 2016 Women in Wealth Awards Winners Cobham-based law firm Mundays can announce Partner and Head of Private Wealth, Julie Man has been named Best Private Wealth Lawyer UK in the ‘2016 Women in Wealth Awards’ which showcases the very best women from across the financial environment. Julie joined Mundays as a Solicitor in November 2006 and progressed to Associate, Partner and most recently Head of Private Wealth in 2013. The detailed knowledge and experience that Julie has acquired over the last ten years of continuous progression at Mundays has helped to establish her as a solid legal adviser in the private client arena, both internally within Mundays and externally. This has been complemented by an approachable and grounded style, which has earned her an enviable reputation for success amongst her loyal client base. Her ability to distil complex points of law and clearly explain them based on the nuances and practical objectives of each client has been highly praised.

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Valerie Toon, Managing Partner at Mundays comments on this fantastic achievement “Julie believes that there really is no ‘typical’ client. It is important to be flexible and adaptable to the needs of the client. Julie leads a hand-picked team that are chosen for their exceptional abilities. Julie deserves this award for the commitment she has shown to her career over the last 10 years at Mundays.” Commenting on the program Awards Coordinator Daisy Johnson stated: “Women’s contribution to the finance industry cannot be underestimated, and as such this awards programme is showcasing the most committed, successful and professional women from across the market. I am truly proud to be able to highlight the hard work of every one of my winners and would like to wish them an even more prosperous future.” To learn more about our deserving award winners and to gain insight into the working practices of the “best of the best”, please visit the Wealth & Finance website where you can access the winners supplement.

Management

“Get IT in WRITING” By Keith Lewington of Excello Law Lawyers know from experience that nothing is more likely to lead to disagreements and disputes than the famous, oral, “gentlemen’s agreement”, so “getting it in writing” has long been one of their favourite maxims. The documents lawyers themselves prepare are littered with the same philosophy: “notice in writing”, “prior written consent”; variations of a contract not valid “unless it is in writing." This, of course, presupposes that we know what “in writing” means. Until very recently (in legal terms), we did. You had to set it out an agreement on a piece of paper and the person to be charged had to sign it. Now, within the past 20 years, with the proliferation of electronic communications, email, PDF documents and online trading the meaning is less clear and lawyers, particularly when drafting, need to consider carefully what the expression means. The Interpretation Act 1978 started to address the problem. It defined, for the first time, “writing” as including “typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form” [emphasis added]. The model articles of association under the Companies Act 2006 went slightly further: ““Writing” means the representation or reproduction of words, symbols or other information in a visible form by any method or combination of methods, whether sent or supplied in electronic form or otherwise.” Simple contracts In terms of forming a simple contract, not that much has changed. Most contracts don’t have to be in writing anyway and having some written record of what was agreed may be better than nothing – or not, depending on which side you are on! Perhaps the key difference is that there was always scope for argument as to whether or not terms had ever finally been agreed. Now, a quick email response saying “Yes, we agree” is enough to provide clear evidence of the existence of a contractual relationship. In the recent past, C&S Associates UK Ltd v Enterprise Insurance Company PLC [2015] EWHC 3757, has confirmed that a contractual variation agreed by email was valid despite wording in the contract requiring variations to be in writing. In Gibbs v Lakeside Developments Ltd [2016] EWHC 2203(Ch), the court held that an agreement between solicitors settling a clients’ dispute could be validly concluded by email although, in the particular circumstances, the court held that no such agreement had been reached. Written contracts There are, however, areas where the law does require a contract to be in writing, mainly relating to contracts for the sale of land (LP (MP)A 1989), contracts of guarantee (Statute of Frauds 1677) and contracts for the assignment of copyright (Copyright, Designs and Patents Act 1988)

guarantees, the courts have concluded that an agreement evidenced by an exchange of emails is “in writing” for the purpose of the Statute of Frauds (J Pereira Fernandes SA v Mehta [2006] EWHC 813 (Ch) and Golden Ocean Group Ltd v Salgaocar Mining industries PVT Ltd [2012] EWca(Civ) 265). But how then is an electronic contract signed? There is no statutory definition of “signature” (or associated expressions) but the courts have always inclined to the view that this is a question of function rather than form: in practice, anything act which deliberately appends the party’s name or mark to a document will be sufficient for the document to be deemed to have been signed. A name, without or without other details, inserted at the end of an email will therefore certainly be sufficient. Arguably, so might be an apparently unsigned communication from a recognisable source – such as an email address or an SMS message from an identifiable mobile telephone number. Deeds Deeds are the one area where wet ink on paper is still required. That is mainly a practical issue because of the difficulty in meeting attestation requirements of a witness “signature” electronically. It is now established, however, that a duly executed deed can be delivered electronically – most commonly in PDF format. Provided the requirement in R (on the application of Mercury Tax Group) v HMRC [2008] EWHC 2721 (Admin) is observed – that is the deed must be a single document rather than separate signature pages, the delivery will be valid, although the cautious solicitor will make sure he follows the Law Society’s 2010 practice note on the signature of virtual documents. The Future The time may come when we have paperless offices! That time has not yet arrived, but the need for the law to keep pace with the changing world of telecommunications means that lawyers must now be aware and must make their clients aware of the effect of electronic communications and the impact they could have on a party’s legal status and obligations. You can contact Keith at Excello Law klewington@excellolaw.co.uk or call +44 (0) 845 257 9449 www.excellolaw.co.uk

What does “in writing” mean in this context? In relation to

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Articles ADVERTISEMENT FEATURE

Protecting Your Wine Collection By NFU Mutual Cobham

Going Underground Before the arrival of temperature-controlled wine cabinets wine was always stored in cellars (and before that caves) to ensure the valuable contents were not exposed to extremes of temperature and humidity. A cellar provides an ideal environment in which wines can mature gracefully, away from light; however, occasionally, the very thing that makes cellars so perfect for storing wine can also pose a threat to your precious collection. Being underground, if your property floods, a pipe bursts or you have a fire and the fire brigade pump gallons of water into your property, water will find its way into the cellar and, once there, it can wreak all sorts of havoc. I remember visiting a property which had suffered a flood and seeing the damage to a wine cellar: treasured vintages rendered anonymous by lost labels; corks contaminated by dirty floodwater and other bottles damaged or broken. Most of the wine collection was spoiled and it was an eventuality the homeowner had never thought about. I’m a great believer in protecting the things you are passionate about so, if you have taken the time to create a wine cellar and build your collection I’ve put together some top tips to help you look after (and enjoy) your investment.

1. Keep an inventory Make sure you know which wines you have, how much each bottle is worth and where in the cellar you’ve laid it down. There are now a number of apps that can help you keep track of your collection or you can stick with a good old-fashioned cellar book. Whichever system you use, make sure you keep it up to date so you have an accurate record of your collection. You should also keep original purchase receipts.

2. Tag it Place plastic identification tags over the bottle ends to identify the contents. Not only will this avoid the need for constantly pulling out the wine, it will also enable you to identify the contents of the bottles with labels that have been washed off by flood or water damage.

3. Devise a salvage plan Flood is the biggest risk for underground cellars and poses a real threat to wine collections. In the same way that art collectors have a salvage plan for their paintings, make sure you have a plan for removing some or all of your wine collection if the local water table starts to rise or you live in an area at risk of flooding. This is where your inventory and cellar storage plan will come in very useful as you can quickly identify the most valuable bottles and remove them to a place of safety if it looks likely that floodwater will affect your property. Some insurance policies will provide for your wine to be stored in a secure warehouse whilst your property is dried-out and the wine can be returned.

4. Ensure you insure Make sure you insure your wine cellar for its full replacement cost. In the event a claim has to be made, you do not want to lose all of the extra value that has built up over the years. Check to see if your collection can be insured under your existing home insurance policy and whether your insurer will arrange for your wine to be moved and stored if you have to move out of your house as a result of a flood, fire or other major event. If you've gone underground with your wine, we hope that nothing happens to damage your precious collection. However but if it does, our top tips could help you to avoid falling in to a grape depression.

By Rachael Collyns. NFU Mutual Cobham, For more information about protecting your wine collections, speak to Richard Alexander at NFU Mutual Cobham who will be happy to assist. 01932 865 667 or Richard_Alexander2@nfumutual.co.uk

How To Say NO Politely by Philip Hesketh ‘Many people tell me they have difficulty in just saying ‘no’ when asked to do something they really don’t want to do. So if that sounds like you, try one of these five options’ 1. ‘I can’t do it justice’ 4. Simple, Gracious and Polite Expressed perhaps as ‘I’m really over-committed right now and if I take this on I can’t do it justice.’ Who can argue with that? But if they do, hit them with this follow up: ‘I appreciate your confidence in me but I wouldn’t want to take this on knowing my other responsibilities right now would prohibit me from doing an excellent job.’ They’re not likely to ask a third time.

2. ‘You decide what I do and don’t do’ ‘I’m happy to help but realistically I can’t do it without foregoing some other things I’m working on. Of tasks A and B, which would you like me to do? People don’t want to hire someone to do half a job.

3. ‘Yes but not now’ Cleanliness might be next to Godliness but have a look what’s next to ‘procrastination’ in a dictionary. Okay, so maybe nothing too relevant but it’s still a tool worth employing. Perhaps expressed as ‘Sure, I can help you carry that old sofa to your garage. I’m a bit busy right now but how about Tuesday next week?’

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Smile, tilt your head to one side and say: ‘I really appreciate you asking me but I’m afraid my time is already committed’. Then, still smiling, immediately close the door very slowly and rush back to the lounge to un-pause Sky Sports.

5. I’m so sorry ‘I wish I could, but it’s just not convenient / possible.’ This is sometimes also known as The Truth. A less curt alternative might be: ‘I would if I could but, for a variety of reasons, I can’t. However, can I recommend someone else?’ This features the double whammy of actually saying no but also offering help which they’ll seldom take up. Genius.

Phillip Hesketh. motivational speaker on the psychology of persuasion and influence

Cyber Crime

CYBER-CRIME ATTACKS The risks of electronic "cyber" attacks on law firms and the potential for substantial losses that might follow have become a growing and highly unwelcome threat for law firms over the course of this year. The SRA reported recently that they were aware of 100 large scale losses of £50,000 to £2m or more in the previous 12 months and it is clear that the total losses sustained by the profession and its insurers run into many millions of pounds. Meanwhile the fraudsters are becoming increasingly convincing and ingenious, which is hardly surprising given the rewards on offer for those who succeed.

A variation of direct fraudster attack is the use of "ransomware" software, in which the firm's data is accessed and a password installed. A ransom request is made for a payment to an offshore account for the release of the password. • "Colleague" to colleague: A variation of fraudster to firm losses is "CEO fraud" in which the firm's email system has been hacked into and it is known that the Managing Partner or Finance Director will be out of the office on a given date, with the fraudster then sending an email or text requesting an immediate payment, often for "special projects".

Equally worrying is the fact that clients are also exposed to the risk of losses as an indirect consequence of their dealings with law firms. When a client receives a bogus demand for funds and duly transmits the monies to the fraudster's account they will, unless the bank can retrieve some of the funds, have nobody to I think two of the blame but themselves. It was reported in the Gazette biggest issues of of the 31st October that the SRA would be warning recent times are the public "as widely as possible" about the risks, but budgeting and the any such campaign will only be at best partly effective. developments

As awareness of the risks increases so should the prospects of taking avoidance measures. So far as advising clients of the risks most firms seem now to be emphasising fraud warnings provided when taking instructions from conveyancing clients with an e-mail reminder. This should be seen as good practice in the light of Outcome 1.1 of the SRA Code of Conduct of J-codes which which requires that firms must "treat ... clients fairly". Most of the losses depend on e-mail intercepts, are proposed for Other threats are mostly within the firms' own control, which are possible as a result of the open nature of recording messages while in transmission and the use of though the ability of fraudsters to set up convincing solicitors’ time. powerful software developed for the purpose of sham email accounts or embed links to malicious detecting and accessing confidential data. The main software in links in emails should not be underrisks to be aware of are: estimated. Beyond this the advice is to be sure to stay up to date with software updates so that controls remain effective and be • "Firm" to client: having intercepted emails (possibly with the more vigilant on password controls than many tend to be. collusion of dishonest personnel at the estate agents involved) the client receives a request for a payment which seems to be Can we exclude liability for cyber losses? authentic. The fraudsters have set up a bank account to receive the It is not possible to exclude liability for losses that a client may funds and explain that this is a new or alternative client account. sustain if they fall into the category of "civil liability" for which the firm This will often be for additional funds required to complete or could must have "qualifying insurance" under the SRA Indemnity be for the exchange or completion monies in a transaction. Insurance Rules (see also the "minimum terms and conditions" at • "Client" to firm: again, having intercepted the email traffic the firm Appendix 1 to the rules). The fact that various additional policies receives what appears to be a genuine request from the client to are now being offered for this particular type of risk do suggest that divert funds which are due to them to another destination - a the position is far from clear, however. It is important to follow any building society account rather than the bank account as notified, guidance issued on this topic by the firm's insurers and bankers, perhaps. and if an incident occurs the COLP should consider whether the confidentiality of client data has been compromised so as to • Fraudster to firm: This might take various forms, most commonly amount to a material breach of the firm's obligations requiring a impersonating the firm's bankers. In the "Friday afternoon" scam the report to the SRA. accounts department receives a call supposedly from the bank alerting irregularities in the operation of the client account. The call Matt Moore is made more plausible through the use of background office noise Director, Infolegal Ltd. and by any knowledge gained of the personnel involved through research by the fraudsters. The person receiving the call is tricked into releasing confidential codes so as to enable the caller to access client account. SurreyLawyer 17

Report

Relationship Manager's Report, December 2016 As 2016 comes to a close, high on the agenda of work for the Law Society is preparing to respond to a number of civil justice reform proposals which could have a significant impact on access to justice for ordinary citizens. Photo: Bhavni Fowler

The most pressing of these is the personal injury reforms announced by the government last month, including proposals to: • raise the small claims limit for personal injury claims from £1,000 to £5,000 • stop or radically reduce compensation payments for minor soft tissue injuries, including whiplash, arising from road traffic accidents. This would mean that injuries such as facial scarring, a broken leg, or losing part of a finger will be considered a 'small claim' and processed under the small claims track.

This was designed to handle low value disputes such as faulty goods or small unpaid invoices, and in most cases the court will not order solicitors' costs to be paid by the losing party to the person claiming compensation. Due to solicitors' costs not being covered, most claimants deal with a small claim without legal help. The Law Society believes that these proposals would completely undermine the right of ordinary people to receive full and proper compensation from those that have injured them - quite seriously - through negligence. People need legal advice in order to bring claims for the compensation they are entitled to in law and we are campaigning strongly to oppose the proposals. We oppose anything other than an inflationary rise in the small claims limit for personal injury cases and outright reject the proposal to remove general damages for minor soft tissue injuries. How can you help? 1. Make your voice heard by responding directly to the government’s consultation – deadline is 6th January 2017. 2. Provide us with real case studies illustrating the impact that the proposed changes could have on those seeking to bring a genuine action for injuries sustained through no fault of their own. Case studies will help demonstrate the important role that solicitors play in ensuring access to justice and the danger of creating a system whereby ordinary citizens are left to navigate alone as a litigant in person and, in some circumstances, are deprived of the full effect of the compensation they deserve. We are particularly interested in the following cases: • road traffic accident/ employer's liability and public liability matters from £1,000.01 - £5,000.00 and up to £25,000.00 where liability is admitted • road traffic accident/ employer's liability and public liability matters from £1,000.01 - £5,000.00 and up to £25,000.00 where liability is in dispute. If you would like further information in relation to the proposals, responding to the consultation or the request for case studies, please do not hesitate in contacting me. ■ by Bhavni Fowler Relationship Manager - South East The Law Society Email: bhavni.fowler@lawsociety.org.uk Tel - 07773 254 543 @LawSocSouthEast

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News

What are the benefits of Regional working? Our successful Kent Young lawyers event at the start of the month saw 35 of The Regions bright young things attending the welcome event in Tunbridge wells. As well as providing a great networking opportunity, the purpose of the event was to discuss the nuances of working in The Regions rather than the pressures of the fast-paced City. Three key-note speakers contributed their views; Vanda James as an experienced lawyer and President of the Kent Law Society, Leilani Reader MD of LR Legal Recruitment and ex In-house counsel and Rich Rosini Associate at Riks & Kay and former city firm Private Client solicitor. Vanda James opened by placing emphasis on a decent work life balance and not getting burnt out early in your law career by the notoriously long city hours. She also discussed the type of work available in The Regions and experience to be gained in terms of exposure to cases and ability to work on something from start to finish. “Those born and bred in the regional firms tend to be around 2 years ahead in terms of experience than their city counter parts. They are also less burnt out by notoriously long city hours and therefore able to maintain a steady progression in their area of expertize” Leilani Reader highlighted that working in The Regions needs to be seen not just as a viable option but a genuine option. Her comments reiterated those of Vanda where she described four very strong reasons to stay in the regions. 1. The opportunity to develop a strong career path with no hidden agenda, you know exactly where you are going. 2. Training, structure and support from regional clients is second to none. 3. Genuine quality of work with technical abilities tested and used daily. 4. An actual real work life balance with benefits that outweigh anything a City law firm might offer

Finally, Rich Rosini gave us an insightful five minutes on his personal experience of moving from City to Regional firm. With a varied background, having trained in Paisley he moved to London to work for a Private Family dealing with their assets & trusts. He then went to a well-known US firm dealing with high wealth families before making the change to associate at Riks & Kay earlier this year. Rich’s main professional motivation for the move has been for the quality of the work. Fed up working for a firm where individual clients were not as important as corporate clients he wanted to be somewhere where working for individuals was just as important. He noted that in his new role he has frequently observed young lawyers experiencing much more exposure to caseloads, meetings and managing projects from start to finish. “Encouraging the ability to manage a process, take on a client, think about how much it’s going to cost, make sure the compliance is accurate, deliver the advice, take on problems, finish the advice, close the file down and finish the relationship provides invaluable experiences for career development.” In conclusion, quality of work and more specifically the level of involvement available in Regional firms at an earlier date provides the opportunity to get to know the firm much better and have exposure to more senior team members daily. This provides more confident and all-round better lawyers who can develop their career by saying “I would like to be a part of this, I’d like to do this.”

By Rowan Hughes

DGT- 10 Year Anniversary Martin Clarke, business development consultant at HFS Milborne provides a timely reminder about the Inheritance Tax obligations of trustees of Discounted Gift Trusts The Finance Act 2006 introduced changes to the taxation of lifetime trusts In essence, the longer the settlor is expected to which means that most of those created on or after 22 March 2006 are live, the longer the purchaser will have to wait for their trust fund, the more considered to be relevant property trusts which may be subject to the settlor will take out year by year and so the less the purchaser will pay. Inheritance Tax. (Note: these changes do not apply to bare or absolute HMRC recommends a prudent approach trusts). Prior to this date most DGTs were established With a DGT, it is possible for the amount that must be paid to the using Interest in Possession trusts and since the changes What is a discounted settlor each year to exceed the growth generated by the fund gift trust? most new DGTs have been established using relevant itself. Therefore the fund may be overly deleted over time. A DGT allows the settlor/s to property trust. Conversely, the growth of the fund may exceed the sums due to make an inheritance tax Post 2006 trusts now reaching first ten year effective gift whilst retaining the settlor so that the fund is less depleted over time. HMRC takes the view that the purchaser would adopt a prudent anniversary a right to future capital approach and would not allow for any growth in the trust fund Under the new rules, a charge to Inheritance Tax on the payments for their lifetime. value of the property held in trust arises every ten years at The value of the settlor’s gift value calculations. which point the trustees are required to report the value to for IHT will be discounted by As an example, assume a settlor aged 75 established a the estimated value of the discretionary DGT in 2006 putting £500,000 into a trust while the HMRC. future retained payments retaining a right to periodic payments of £25,000 pa for life. After With post 2006 trusts now starting to reach their first 10 subject to the settlor’s age the ten year anniversary the fund stands at £1,000,000. year periodic charge, a reminder that trust valuations will and state of health when the Calculations are based on an 85 year old. If application of the be required to calculate any Inheritance Tax payable, is trust is created. discounting factors produced a value of £534,250, this is the appropriate. value of the relevant property for IHT purposes and to which the trust’s A trustee will be liable for Inheritance Tax if the trust is worth more than the available nil-rate band is then applied. nil rate band (NRB) that is in force at the time (currently £325,000).

Assessing the value of the relevant property

Trustees will seek guidance

In terms of the value of the relevant property, what we are trying to establish is the sum a hypothetical purchaser would be prepared to pay for the trust fund at the ten year anniversary. HMRC sets out a method for assessing this figure as follows: The open market purchaser of the trust fund would be buying the right to receive the whole value of the underlying trust fund following the death of the settlor. In deciding this value, the purchaser would start with the value of the trust fund at the 10 year anniversary date. This price would then be discounted to allow for the expected delay between the purchase and the eventual death of the settlor. A further discounting factor to cover the settlor’s expected withdrawals between the purchase date and the date of the settlor’s death will be applied.

It is important to note that 10 year anniversary reminders will not be sent to trustees. It is solely the trustees’ responsibility to notify HMRC where the relevant value exceeds 80% of the NRB at the 10 year anniversary. It is likely that many trustees will be unaware of their obligations in this area and will be looking to advisors for assistance. There is a potential problem where the value of the trust, after the deduction of the settlor’s future withdrawals, is in excess of the NRB, and that is how the tax will be paid. Where the settlor is still alive, their right is to the fixed withdrawal payments as specified in the trust and they cannot take additional amounts from the trust. In this case although the trustees must file the report to HMRC it is likely that the trustees will ask the settlor to pay the tax which will be treated as a further gift.

SurreyLawyer 19

Family

Arbitration and Much More I am very much looking forward to coming down to the Surrey family law arbitration and am myself an accredited arbitrator. I have been saddened to see the Court service suffer financial cut backs and legal aid in a family context has now all but disappeared. I have been saddened to see the Court service suffer financial cut • Informality: the arbitrator will often make himself easily accessible backs and legal aid in a family context has now all but to the parties/lawyers by email/telephone conference calls which disappeared. leads to much faster resolution of interlocutory applications and can mean that the case is dealt with in a much more cost effective As a consequence, I believe that clients are now are now looking around to deal with cases in new ways and this is where arbitration way. can come into its own. It is important when considering arbitration to look at the IFLA Rules – either the Children or Financial Rules as well as the The Financial Arbitration Scheme was launched in April 2012 and originating applications namely the Form ARB 1FS (Financial) or since that time more than 300 arbitrators have been trained and ARB 1CS (Children). These can be found on the IFLA website over 100 financial arbitrations have taken place. In July 2016 the www.ifla.org.uk. It can be seen in both Schemes that the law of Children Arbitration Scheme was launched and now 60 arbitrators England and Wales is applied and that the arbitrator effectively has have trained. the same powers as a High Court Judge. The scope of the This is a very exciting time for arbitration and I am confident that it respective Schemes are clearly set out in the Rules and will become more and more popular with so careful consideration needs to be given at an early Clients are separating couples. We have been lucky in this stage (pre-commitment) to whether or not the subject country that the judiciary have endorsed the IFLA now are now matter is suitable for arbitration. Arbitration Schemes and have provided clear looking around to In the Children Scheme, safeguarding provisions are in guidance as to how arbitral awards are to be made deal with cases in place to include before the commencement of the into Court Orders. In S v S [2014] EWHC 7(FAM) new ways and this arbitration and on an on-going basis to disclose "fully Munby J indicated that where parties have bound themselves by signing a Form ARB 1FS to accept is where arbitration and completely" any fact/matter/document in the parties' possession or control which is/may be relevant to an arbitral award, this generates a magnetic factor can come into safeguarding the welfare of the party/child. In addition, of determinative importance and that in the its own. prior to the commencement of the arbitration each client absence of "compelling countervailing factors" the must obtain basic PNC checks and provide them to the arbitral award should be determinative to the Order arbitrator as well as completing a Safeguarding Questionnaire. that the Court makes. He subsequently went on to provide his President's Guidance (arbitration in the family court) on 23 The voice of the child in arbitration is heard via an independent November 2015 which provided helpful guidance to practitioners. social worker who will be appointed where appropriate to ascertain the wishes and feeling of the child concerned and report and There are numerous benefits of arbitration for families to include: advise on welfare issues. • The parties select their decision maker and have continuity of I look forward to providing much more information and practical decision maker. • The arbitral scheme is flexible and leads to a creative tailor-made top tips regarding arbitration at my talk in February. ■ bespoke process rather than the generic process of Court. Suzanne Kingston. • The clients can choose the pace at which they deal with things. Solicitor, Collaborative LAwyer, Mediator and Arbitrator Withers LLP In particular in children proceedings, there may be really urgent issues like education with looming deadlines for school entrance applications and arrangements for holidays and Christmas, these require fast adjudication which the Court is not always able to deliver. In other cases, sensitivity and time are needed to allow children and the family to adjust to changing circumstances so that they are emotionally and practically ready for the next steps. • Confidentiality: there has been a move in recent times in the Court process towards openness and transparency whereas in arbitration confidentiality is assured.

20 SurreyLawyer

Private Client

Who’s looking after Mum? The increasing need for advice on care funding Not a week goes by without the national media running stories about the current plight of social care. This impacts not only on state supported clients but those who are fully funding their care from their own resources. Since 2010, local authorities have cut social care funding by a third: 300,000 fewer people receive council-funded help than four years ago. Either those people have to rely on others to meet their needs or their needs are unmet. The Local Government Association estimates the gap between what they need and what they get will be about £4bn by the end of the decade. The financial gap continues to grow. Since the Care Act came into force in 2015, local authorities have the task of not only commissioning care but stimulating and maintaining a market for care. Yet with limited money offered by the State, the Care Providers Alliance (an umbrella organisation representing numerous care associations) have warned the Government that many of their members will go out of business unless urgent money is invested in the system. They estimate that 75% of providers are very concerned about their ability to continue in business. If these estimates prove true, trying to find (let alone fund) care in the future will present a challenge for anyone needing care- regardless of whether or not the local authority are financially contributing towards the cost. Who will provide care if there are few regulated care providers? This lack of money is having a direct impact not only on choice of care but on the quality of care. According to Care Quality Commission (CQC) data, more registered care providers are providing inadequate care or care that requires improvement, than providing good care. 60% of care beds are funded by the State, with most care homes taking some local authority funded residents. For care homes to survive they must charge self-funding residents a significantly higher rate for care than they charge local authorities. Research by Knight Frank for the 2014-15 financial year (2015 Care homes trading performance review) indicates that the average weekly fee for a nursing home in the south east is £893 with residential care home fees being £718. Local authorities commission care at a significantly lower rate. The local authority is only obliged to find one care bed, which is suitable to meet a person’s eligible needs- leaving many families feeling they have no option but to make additional payments (“top up”) to get their relative into an acceptable care home.

raised the concern that families across England may be paying more than they need to because they have not been given accurate information about the costs of care available in their area. Crucially families need advice at this time to avoid later complicationsparticularly if funding cannot be sustained. This chronic underfunding is having a knock on effect on the NHS: a recent report by the National Audit Office found delays in discharging patients from hospitals in England had risen by nearly a third over the last two years. NHS England has warned delays in discharging elderly patients from hospital could continue for up to five years and blames social care pressures for the problem. Older people in hospital who need either to move into a care home or arrange for home care via an agency are struggling to find good quality affordable care themselves or via a local authority commissioning arrangement. Increasingly families are wondering whether it’s a good idea to pay high charges for poor quality care or whether it would be financially better to pay a family member, who will be trusted to provide good care in a family environment. Where the cared for family member has lost mental capacity, it may be necessary for the Court of Protection to authorise such arrangement. The Office of the Public Guardian has recently published a practice note on ‘Family Care Payments’ which sets out the legal framework and the Office of the Public Guardian’s view of how Court of Protection deputies should approach family care payments, including factors for them to consider when deciding on the level of such payments. It has equal application to attorneys acting under financial Enduring or Lasting Powers of Attorney. This is just one issue where older clients and their families need legal advice on care funding. Professionals who act as, or advise deputies or attorneys play a vital role in ensuring older clients care meet their needs, is affordable, sustainable and appropriately authorised to avoid conflict and problems. ■ Caroline Bielanska Solicitor, TEP and Independent Consultant to the legal profession.

Research in 2015 from Independent Age, the older people’s charity found that 43% of councils did not comply with at least one of the requirements to have a written agreement in place for all top-up fee arrangements in their area; carry out annual reviews of top-up agreements as a matter of course; and ensure all top-ups in their area were arranged with the involvement of the local authority. This concern was replicated by the Local Government Ombudsman, who in September 2015 published a report about common complaints, which

SurreyLawyer 21

Private Client

Genealogical research – The secrets of locating missing heirs With the majority of estates, identifying the rightful heirs is straightforward. However, when beneficiaries are missing or unknown it can throw the entire estate administration process into disarray. A case which highlights these risks involved a spinster who died intestate and left a £200,000 estate. Her paternal family was quickly located and reported that there were no surviving maternal relatives.

unless genealogical research has been undertaken beforehand. For larger estates, a recognised genealogy report is often the only viable option for legal professionals to take.

To safeguard you and your clients against the consequences of a missing beneficiary coming forward, many firms carry out a beneficiary search through a specialist genealogist, like Title Research. They However, when the deceased’s post was redirected to her This may sound provide a comprehensive report which identifies any potential solicitor, a card was received from ‘Cousin Joyce’ who had not unusual but heirs (and locates them if necessary) or at least provides been mentioned by any other family members. As a result, the Title Research reassurances that there is little chance of further beneficiaries solicitor appointed Title Research to research the family tree in existing. greater detail. They identified seven maternal family members reports that 40% of family “In the authors’ view, whilst there is no authority which provides who all stood to inherit from the estate under intestacy rules, trees that they assistance on this point, it is possible that a beneficiary might fundamentally changing the distribution of the estate. check contain successfully argue that the personal representative has acted in This may sound unusual but Title Research reports that 40% errors. breach of duty by appointing an heir locator on such a basis, of family trees that they check contain errors. Had the estate and should be personally accountable for the share that the beneficiary been administered without further investigation, the beneficiaries (and has paid to the heir locator.” their legal representatives) could have been left exposed if entitled beneficiaries emerged after the estate had been distributed. So how do you mitigate these risks? The SRA expects you to take reasonable steps to find all beneficiaries; only small estates of £500 or less can be self-certified and donated to charity. One way of doing this is to ask the beneficiaries whether they are aware of any other heirs but cases like ‘Cousin Joyce’ demonstrate how this approach is inherently unreliable. Specialist insurance cover to mitigate the risk of a missing beneficiary coming forward is also an option. However, very few insurers offer cover

22 SurreyLawyer

Tom Curran, Chief Executive at Title Research said: “Failure to carry out thorough genealogical research could result in a missing or unknown heir coming forward after an estate has been distributed. We locate thousands of missing beneficiaries each year which highlights how easy it is for legal professionals to fall foul of assuming that all heirs are accounted for. Our consultant genealogists trace people across the world and have a success rate of over 90%, so we are confident that we can help our clients with even the trickiest of estates.” For more information Title Research’s services, visit www.titleresearch.com or call 0345 87 27 600.

Events

LEGAL CUP 2017- Open for Entries Every year in the spring sunshine, law firms from all over the UK flock to the South Coast to compete in the legendary Legal Cup. This year’s event takes place over two days from 20 – 21 May 2017 and includes the ever popular themed gala dinner and party. The weekend combines productive networking, team building and charity fundraising. It is the sailing event for the legal community. In 2016 over 250 people took part including Magic and Silver Circle firms. After some incredible fancy dress and amazing dance moves, Tahiti holiday prizes from our generous sponsor, and very close racing on the water, the Bar Yacht Club and Bond Dickinson departed with the coveted trophies. Other prize winners included Allen & Overy, Clifford Chance and Fieldfisher. Now is your chance to take part, please join us in 2017. With sign ups from Linklaters, Norton Rose Fulbright, Private Office Legal Services and Private Office Asset Management Ltd the competition is heating up. If you are a law firm looking for a new experience - the Legal Cup could be perfect for you. It doesn’t matter if you have never set foot on a yacht before; Our professional sailors will show you the ropes, so you and your team can have fun and get involved. We also accept entries if you have your own yacht.

See what supporters of the event have to say: “The Legal Cup is a great way to meet others in the industry and a fantastic opportunity to bring teams together. A great feature of the event is that it’s open to all levels of experience and develops a terrific sense of camaraderie among the crews” – Allen & Overy “With a history deeply rooted in shipping law, Norton Rose Fulbright is delighted to enter the Legal Cup for the very first time. The weekend has developed a reputation as a must attend event in the legal sailing and social calendar and we look forward to hoisting our colours on our debut in the Legal Cup 2017” – Norton Rose Fulbright "Without doubt one of the best sporting events in the legal sector. Whether you're a seasoned sailor or a complete beginner, the staff at Britannia pull out all the stops to make sure you have an unforgettable weekend and keep you coming back year after year.” - Herbert Smith Freehills LLP.

If you would like to enter your firm or find out more about the event, please visit the event website www.britanniaevents.co.uk/legal-cup or email the team on info@britanniaevents.co.uk SurreyLawyer 23

Finance

Further tax changes are on the horizon for property investors During 2015, the Government announced several changes to the way investors in residential property would be taxed. Some of these will be phased in from April 2017, so now is the time to start planning for tax changes that may affect you, if you haven’t already done so.

What you need to know If you have a mortgage on a buy-to-let property, you can currently offset the interest against rental income when calculating profits, paying tax on the profit according to your income tax band. From April 2017, new rules restricting tax relief on mortgage interest will be phased in over four years as follows: • 2017-18 – deduction from property income will be restricted to 75% of finance costs, with the remaining 25% available as a basic rate ‘tax reducer’ • 2018-19 – deduction from property income will reduce to 50% of finance costs, with the remaining 50% available as a basic rate ‘tax reducer’

Current Position Rental income

Wear and Tear (10%) Interest

£125K @ 4%

£125K @ 4% x 75%

• 2019-20 – deduction will fall to 25%, with the remaining 75% available as a basic rate ‘tax reducer’ • 2020-21 – there will be no deduction from property income for finance costs, with 100% available as a basic rate ‘tax reducer’. Basic rate taxpayers The chart below demonstrates how a basic rate taxpayer would be affected by the changes (assumptions are based on furnished, residential property worth £250,000, with 50% debt, 4% interest and a rental yield of 6.5%): ■

2015/16 £

2016/17 £

2017/18 £

2018/19 £

2019/20 £

2020/21 £

-1,625

16,250

-5,000

16,250

-5,000

£125K @ 4% x 50%

16,250

-3,750

£125K @ 4% x 25% £125K @ 4% x 0

16,250

-2,500

16,250

-1,250

16,250

Taxable profit

9,625

11,250

12,500

13,750

15,000

16,250

Income Tax @ 20%

1,925

2,250

2,500

2,750

3,000

3,250

Tax Reducer:

£125K @ 4% x 25% x 20%

-250

£125K @ 4% x 50% x 20% £125K @ 4% x 75% x 20%

£125K @ 4% x 100% x 20% Tax Due:

Post-Tax funds ‘in-hand’:

24 SurreyLawyer

1,925 9,325

2,250 9,000

-500

2,250 9,000

-750 2,250 9,000

-1,000 2,250 9,000

Finance Higher Rate Taxpayers Liabilities increase considerably for higher rate payers. Assuming the property portfolio is worth £500,000, again furnished, with 50% debt and 4% interest on that debt, and a rental yield of 6.5%, the calculations are as follows:■

Current Position Rental income

Wear and Tear (10%) Interest

£250K @ 4%

£250K @ 4% x 75%

2015/16 £

2016/17 £

2017/18 £

2018/19 £

2019/20 £

2020/21 £

-3,250

32,500

-10,000

32,500

-10,000

£250K @ 4% x 50%

32,500

-7,500

£250K @ 4% x 25% £250K @ 4% x 0

32,500

-5,000

32,500

-2,500

32,500

Taxable profit

19,250

22,500

27,500

30,000

32,500

Income Tax @ 40%

7,700

9,000

10,000

11,000

12,000

13,000

Tax Reducer:

£250K @ 4% x 25% x 20%

-500

£250K @ 4% x 50% x 20% £250K @ 4% x 75% x 20%

£250K @ 4% x 100% x 20% Tax Due:

Post-Tax funds ‘in-hand’:

7,000

14,800

9,000

13,500

You can see that tax would now be liable on £32,500 of profit by 2020, as opposed to the current £22,500 in 2016/17. The net tax bill would be £11,000 compared to £9,000 in the current tax year, reducing the residual post tax funds by £2,000.

9,500

13,000

-1,000

10,000 12,500

-1,500 10,500 12,000

-2,000

11,000 11,500

For some taxpayers the situation could be much worse and lead to an unsustainable position where the tax is higher than the profits generated. This will be most problematic where the taxpayer is very highly geared.

Example Mr & Mrs X have a large residential rental property business, generating £500,000 of gross income. Finance costs amount to £300,000 and non-finance costs are £150,000. The net profit before tax is £50,000. 2016/17 • Mr and Mrs X have £25,000 profit each • After a personal allowance of £11,000 (assuming no other income), taxable income is £14,000 • At 20% they each have a tax bill of £2,800, being £5,600 in total. 2020/21 • There is now no interest relief, so the profit becomes £350,00 • This is apportioned £175,000 each. They have lost their personal allowances as their income level leads to this being fully abated to nil • Assuming that the basic rate band is increased to £50,000 and the additional rate of tax remains at 45% the tax is £61,250 • The tax reducer will be £150,000 x 20% = £30,000 each, giving a tax bill of £31,250 each and a total between the couple of £62,500 • With a cash profit of £50,000 after all costs a tax bill of £62,500 (125%) is not sustainable. Is there any reprieve? There are some things you can do to mitigate impact of the new changes. Look carefully at your projections for income and profit, and work out what is an acceptable return and consider scaling back on non-essential refurbishments. It may be that selling an element of the portfolio or restructuring the debt may be required, but before making decisions like these, I’d recommend

contacting us in order to explore every option available to you. Wilkins Kennedy has a vast amount of experience in dealing with landlords and has accumulated extensive local market knowledge. Why not contact us at our Surrey offices in Guildford and Egham to see how we can help. By Steve Hoare Tax Director, Wilkins Kennedy.

SurreyLawyer 25

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26 SurreyLawyer

Technology

LEAP enhances technical support and grows team LEAP, the world’s leading cloud software provider for small law firms, has recently transformed its UK customer service model, moving from an inbound helpdesk telephone system to a LiveChat system where the vast majority of support issues can be resolved immediately.

A client logs onto the LiveChat system, the call is automatically logged and the client is straight away talking to the technical support team. The team operates a triage system and over 80% of problems are resolved straightaway. The option of phone support is always available. With the LiveChat system all ten of the LEAP support team say they have resolved an issue with online chat within one minute. How many phonebased teams can claim that? LEAP’s support team is UK-based, currently comprises of ten members, with three more to be added because of sales growth. Sarah Martin-Lewis, Helpdesk Manager for LEAP, comments: “Clients understand that LiveChat means an immediate response to a query without having to wait in a queue for a period of time Customer agent Rhys Tudor-Davies adds " LiveChat gives us the opportunity to resolve multiple issues at once and allows customers to get in touch quickly without the need to be kept on-hold." LEAP UK CEO Peter Baverstock comments: “We are exceptionally proud of our support team and we are delighted with the LiveChat system. We never give up on a technical problem. We pride ourselves in having the

best software for small law firms and we can now add the best support to that.” LEAP customer Derek Adkins, DRA Conveyancing Ltd. comments “We have found the LEAP support to be patient and reliable. To illustrate this, I was recently working whilst flying at 35,000 feet on an airline which offers Wi-Fi; having some problems, I contacted LEAP Support. They promptly logged on to my laptop remotely and almost fixed my issue (only weak Wi-Fi preventing full resolution). The next working day LEAP completed the fix allowing me to be fully engaged in the running of my practice, and the accounts, whilst 5,000 miles away from UK.” and finally …. Some amusing quotes from the support team have received from clients include: "Could you just pop down and sort this out for us? I’ll make you a nice cup of tea and a sandwich." "Would you like to come to a birthday party? There will be curry." “The moths are back. Can you help?”

SurreyLawyer 27

Conveyancing Focus

by Kevin Johnson

2017 – The Year of the Rooster! 2016 has not been the best in recent history—conflict horrors in Syria and Iraq and the resulting migrant crises; earthquakes, human casualties and destruction of communities in central Italy and New Zealand; the Brexit referendum uncertainties and Trump winning the White House; world of entertainment losses; Wogan, Rickman, Prince and Bowie to name just four. It feels like the whole world shifted ever so slightly on its axis. have increased by more than 50% in five years. Elsewhere, But it wasn’t all bad news; Andy Murray took Wimbledon again and Montpelier in Bristol, previously dubbed one of the 'coolest' places to became world number one; Queen and country celebrated in live in Britain, has seen property price growth of nearly 40%; the spectacular style her 90th birthday; Team GB were awesome at the Jewellery Quarter in Birmingham has experienced rises of 31%, Rio Olympics; Major Tim Peake’s successful mission to the International Space Station; conservation successes in India, Russia Chorlton in Manchester and Headingly in Leeds 28% and Ecclesall Road in Sheffield 25% over the same period. Of course, this doesn’t and Nepal resulting in significant increases in tiger numbers for the necessarily help with the issue of affordability. first time in a century; Pokemon Go got everyone outside and walking more; the US and China The success of the Despite the uncertain economic outlook, demand ratified the Paris Climate Treaty; Juno went into conditions have strengthened, reflecting the impact of Index philosophy has orbit around Jupiter; Prince Harry found himself a solid labour market conditions and historically low been unprecedented, girlfriend and Nestlé announced a revolutionary borrowing costs. Mortgage approvals increased in with multiple offices discovery so that it uses 40% less sugar in October, and surveyors report that new buyer inquiries opening throughout the chocolate without changing the taste! have increased.

country on a yearly

What could 2017, the Chinese Year of the The Index philosophy was formed following the demise basis, we continue to Rooster, possibly hold for us after such of the Home Information Pack era. Simply put; utilise be the UK’s fastest turbulence this year? Well, according to modern technology where it enhances the service but, growing independent Nostradamus, China could make bold moves to at all times, a client’s needs come first. With search provider. cure the “economic imbalance” in the world with everything that we do, we ask one question first; “does far-reaching effects; Italy could face financial this help the client?” The success of the Index hardship making it the “epicentre” of a fresh Eurozone crisis; the US philosophy has been unprecedented, with multiple offices opening is expected to become increasingly ungovernable and incompetent throughout the country on a yearly basis, we continue to be the UK’s under Trump; a new truce will break out between Russia and fastest growing independent search provider. Ukraine; there will be a “Hot War” over global warming and In uncertain times, I do hope that in 2017 you will consider the diminishing resources; and, in technology, Nostradamus predicted benefits of working with Index. If nothing else can be guaranteed, at that cloud computing would simply become known as computing, least you’ll know that your conveyancing search requirement is in solar power would become more widespread, and commercial safe hands. A very happy and prosperous New Year to one and all. ■ space travel would take off with orbital flights around the Earth. In the UK property orbit (my world as part of the Index network), generally the market has outperformed very low expectations since the shock Brexit referendum and resulting economic uncertainty. ‘Hipster’ pockets are enjoying better times than other parts of the country; the top six hotspots are Dalston, Shoreditch, Stratford, Stockwell, Stoke Newington and Tooting in London, where prices

28 SurreyLawyer

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

How to be a successful commercial property lawyer There is more demand now for commercial conveyancers than any time in the last 10 years in my view. Many think that it is much the same as residential conveyancing, but though the basic land law and processes have to be the same, the devil is in the detail. Small differences can make a significant differences. After all, did you know that your DNA is 98% the same as a chimpanzee?! So what makes you a good commercial property lawyer? In my view, its a lot more than just knowing the law: 1. Know your clients, know the lingo, know the market rent and values in your area. Read the Estates Gazette news section, as well as the legal section. When a client says he is thinking of taking a 100,000 sg.ft. shed know he means a warehouse, not somewhere to store an extensive collection of garden equipment. 2.Get to know the active players in your local market. Commercial property clients are easy repeat business. Unlike residential clients, who are fickle and you only see every 5-7 years, good commercial property clients will give you lots of work for years. Price is not the main reason they will use you - it will be because you are a trusted adviser who can prevent them buying lemons, and be relied upon to give good legal and commercial advice. 3. Know the property beyond looking at the Land Registry entries. Look it up on Google Streetview or maps so you can see it is old, brand new, a small part of a large building or stand-alone. Has the agent forgotten to mention the car parking, service access, fire escape route. Is it appropriate that it should be a full repairing lease if it is part of an old industrial park? Be ready and wiling to visit the property with your client - invaluable with property development transactions. 4. Have close relationships with a selected number other related professionals who you can refer issues to and who will in return refer matters to you. For example if there is a planning issue you can say ‘have a chat with my friend Steve’ rather than referring them to a website or the local authority. The same goes for SDLT & other taxes, Capital Allowances, surveyors, and so on. 5. Understand your clients objectives and know the ‘deal buster’ points on a transaction - look into them first. Don't leave reporting to the formal ‘report on title’, and communicate with clients in the way that suits them, in language they understand. 6. Know you law and stay up to date with it. Suggesting title insurance is often not any solution at all, even if it is available. Commercial property is much more likely to be built on, altered, subdivided, redeveloped, have new access or services needs. Your client doesn’t want to buy a problem, and end up with an insurance claim, or litigation - he wants to use it now for his business.

7. Know your own abilities, and don’t risk dealing with things you aren’t comfortable with, or experienced in dealing with. If you have only ever dealt with commercial leases, resist the temptation of a big fee for dealing with a large property development agreement, with complex overage or tax provisions unless you have the support of a colleague experienced in this area. It is often a team effort, and timecosting turf wars don’t do you or the client any favours. 8.Have a decent library of resources to refer to, whether online like Practical Law or Lexis Nexis (or books-on-screen solutions). Read them or familiarise yourself with their practice notes and guidance before you have to. My personal essentials books are Gale on Easements, Restrictive Covenants - A Practical Guide by Andrew Francis), SDLT by Cox & Woolwich, Ross on Commercial Leases, Development Land, Overage and Clawback by Jessel, and Property Development by Gavin Le Chat. There is a lot of useful guidance in the Law Society’s Conveyancing Handbook too. 9. With Commercial Leases, in my view the key points involve having accurate plans and description defining the extent of the premises and rights of way/services accurately, ensuring repairing obligations are fair, getting clear break clauses, fair and flexible user clauses. Also making sure the the results of your enquiries and searches show that you can actually use the property for the uses permitted under the lease. So many clients try to avoid paying for searches without appreciating their importance, or pay lip service to dealing with the CPSE enquiries. 10. With Development work, in my experience, part of the problem is lack of communication. No one works off the same plans, to start with. The planning consultants work off one set of assumptions in relation to boundaries and constraints, the infrastructure people work on another set of assumptions and neither of them tie up with your report detailing the actual legal rights and obligations, or what passes for a boundary on the documentation. Getting on top of this at the beginning will save you a lot of problems later on. Also beware clients who won’t do the detail, want a broad brush, cutting corners approach - they usually come a cropper eventually. On the positive side I would totally recommend commercial property work as a satisfying and profitable area of work. But only if you make it so, and embrace its challenges and complexity. It is always changing and you will never stop learning….

Hannah Mackinlay LLB MA Solicitor www.propertylaw.guru SurreyLawyer 29

Conveyancing Focus

eConveyancing starts to take shape

an interview with Adam Bullion, General Manager of Marketing & Product at InfoTrack Why is changing technology important? It has become clear that advances in technology, such as the advent of the internet and the smartphone have changed human behaviour. From our professional lives, where we work longer hours due to remote technology, to the behaviour in our personal lives, where we expect to have access to information instantly and be able to perform many tasks wherever we are, whenever. Consumer behaviour also has changed, and ecommerce has become king, so we no longer need to ever leave our homes to buy goods. These daily efficiencies are also expected by staff, and as a business owner it is our duty to implement the appropriate technology to meet these changing needs, particularly when, regardless of technological advances, many business processes remain stagnant. In terms of the conveyancing process where do you foresee the potential for change? I believe that the conveyancing industry is a legal sector that is overdue for change. Aside from searches, many parts of the process have already become electronic and are hosted online, such as the submission process for the SDLT and AP1 forms. However, no provider has taken advantage of this ability, until now. At InfoTrack, we look at the most cumbersome and form heavy sections of conveyancing and turn these into electronic versions that are easier to complete and enjoyable to use. Upon review, we identified the contract pack as the next segment of the process where administrative processes can be reduced and optimised. With this in mind, we have created eCOS (electronic Contract of Sale) which combats the time consuming process of copying information into a contract, as well as dealing with the slow and unsecured way in which these documents (including the TA6 and TA10) are handled. eCOS is a fully electronic process that conveyancers can take now advantage of and be seen by their clients as truly forward thinking. Tell us more about eCOS, what does this do? We created eCOS (electronic Contract of Sale) to be a paperless solution that gives conveyancers the ability to compile the full contract pack electronically, including the TA6, TA10, contract, title and plan. Our smart eCOS portal also allows the contract pack to be easily sent and received by both the conveyancer and the client within InfoTrack, so you can rely on it being a fast, paper-free and completely secure process that requires no printing scanning, posting or faxing. These contract packs can also be signed

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electronically by all parties involved, using the latest in e-signature technology. At InfoTrack, our mission to build the end to end conveyancing process online is being enacted one process at a time, and eCOS is the next step. Are electronic signatures acceptable forms of signing legal documents? With a growth rate of over 53% annually, e-signatures are rapidly being adopted in many industries and at different levels of transactions. The Law Society recently released a practice note on the use of electronic signatures in law, and with secure, stringent measures put in to maintain the highest level of security, electronic signatures are highly regarded and are an efficient way of signing documents. The technology we use is by DocuSign, the global industry leader in e-signing. Would you offer any advice to conveyancers looking to adopt new technology? InfoTrack aspires to create technology that is not only incredibly efficient and simple to use, but also makes day-to-day processes more enjoyable. I believe that good technology should be a joy to use, as well as providing clear operational benefit. So when adopting new technology for your firm, I always suggest that a series of questions are asked; does it add value to the customer? Does it reduce operating costs? Is it relevant? Will it help us excel in our core competencies? Will it reduce cost/improve quality/provide a set of functions that did not exist before? Those technologies that will be most valuable should respond â&#x20AC;&#x2DC;yesâ&#x20AC;&#x2122; to all those questions. â&#x2013; By Adam Bullion, Head of Marketing

Conveyancing Focus

Environmental searches: a simple solution to the complex issue of flood risk. In Summer, we witnessed flash flooding on an almost biblical scale. In parts of Southern England, cars were caught in rising floodwaters and businesses were forced to close as almost a month’s worth of rainfall fell in just one hour. There are many common misconceptions around flood risk. When we think of flooding, there’s a tendency to picture a river that’s burst its banks. However, that’s not always the full story. Did you know the Environment Agency estimates that more properties in England are at risk from surface water flooding than flooding from rivers and the sea? In its practice note from May 2013, The Law Society draws attention to these hidden dangers, stating: “It may not be obvious when a property is at risk from flooding. Properties do not need to be close to a river or the sea or on low-lying ground to be exposed to flood risk. Surface water, groundwater and overflowing sewers are increasingly common causes of flooding.” So, how do you make sure that your clients’ property transactions are completely watertight? “Flood risk is a complex issue but the solution for conveyancers is simple,” says Steve Johnson, Account Director from Landmark Information Group. “The right property search will accurately

identify the level of flood risk at a client’s property while removing the burden of interpretation from the conveyancer’s shoulders.” Thames Water Property Searches offers Landmark’s standalone Homecheck Flood report, as well as the all-encompassing Riskview Environmental Search, both of which offer a fully practice note compliant flood risk assessment. “While misconceptions may abound, it is common knowledge that buying a home in an area prone to flooding can make it difficult to obtain a mortgage, obtain suitable insurance cover or sell the property in the future,” says Steve. “Given the huge negative implications for clients, it is essential that solicitors and conveyancers follow The Law Society’s guidance by addressing flood risk in accordance with the Flood Practice Note,” he adds. “That way both the homebuyer and lender are fully informed before the purchase completes and the conveyancer remains robust in their due diligence.” If you would like to find out more about our products or would simply like some advice, please do not hesitate to contact our customer experience team on 0845 070 9148 or visit www.thameswater-propertysearches.co.uk

Groundwater flood risk to property: costly and misunderstood When property buyers thinking of flooding, they look warily at the nearest river or stream – and many conveyancers will support this via referring to standard environmental searches which will include details of flood risk. When property buyers thinking of flooding, they look warily at the nearest river or stream – and many conveyancers will support this via referring to standard environmental searches which will include details of flood risk.

seek improved terms with their insurer – or else there could be serious financial risks, which could be of concern to any lender with a charge on the property.

Flooding from rivers rightly gets a lot of attention due to the sudden damage to homes and lives and is an ever more frequent occurrence. However, very few homebuyers and business owners consider the massive risk of groundwater flooding, because it isn’t obvious and certainly not well understood by authorities, insurers and regulators. This leaves your client exposed – and when there’s no certainty, there’s risk.

Groundwater is responsible for about 30% of all property and infrastructure risk and yet the government, insurers and property professionals are still largely ignoring the risk.

Groundwater flooding is more subtle, unexpected and occurs over a longer time period than flooding from rivers or sea. Effects on property include: • New springs developing – appearing indiscriminately regardless of property. • Ground stability problems – including slope failure, subsidence and sink holes. • Basement flooding – high spec designs in already costly real estate can be ruined by hidden groundwater surging after heavy rainfall. • Damage to infrastructure – such as buried utilities and service ducts. • Overloaded sewers – groundwater can invade and backup systems in susceptible areas, leading to water pollution and service outage. • Brownfield site flooding – leaching of contaminated soil into nearby watercourses.

GeoSmart has launched an important new guide which explains more about groundwater, how this type of flooding occurs and its impact on property – as well as giving advice on how to find out more about the risk. Property conveyancers should ensure that the environmental or flood search information they obtain on behalf of their client reveals the true, often unique way groundwater could affect their client’s property. GeoSmart operates the most comprehensive national groundwater flood risk dataset in the UK at a 5m resolution, delivering clarity at the property level. To download the groundwater flood risk guide visit: http://geosmartinfo.co.uk/groundwater To find out if your client could be affected by groundwater flood risk speak to your property search company, email us at info@geosmartinfo.co.uk or call us on 01743 276 150.

Many insurance policies exclude groundwater, often in clauses related to a “rise in the water table” Conveyancers should advise their clients to

SurreyLawyer 31

Free Wills

Free Wills Month is an opportunity for both solicitors and the public Ten national charities are working together to promote Free Wills Month during March. The promotion is an opportunity for people to have their Will written free of charge by a local solicitor and at the same time to leave a lasting legacy. For solicitors the promotion is a fantastic opportunity to acquire new clients at no cost. The promotion involves a lot of local advertising, which includes participating solicitors’ details, paid for by the organisers. Solicitors average 25 new clients, though some set a lower limit while others regard it as an excellent way to add to their client list and take as many appointments as they can manage. Many charities depend on gifts left in Wills for up to half of their funding. The Free Wills Month promotion aims to encourage those aged 55+ to have their Will written or updated (though in the case of couples making mirror Wills it is sufficient if one has reached 55). Free Wills Month is a great opportunity for people to consider leaving a gift to one or more of the charities. There is no

obligation to include a gift, though the great majority of people using the promotion choose to do so. The Free Wills Month charities work exclusively with solicitors who are in good standing with the Law Society and who are regulated by the SRA. The Free Wills Month charities in the March 2016 campaign are Age UK, Arthritis Research UK, The Blue Cross, British Heart Foundation, Diabetes UK, Guide Dogs, Marie Curie, MIND, NSPCC, Prostrate Cancer UK, Redwings, the RNLI, Royal British Legion, The Salvation Army, SSAFA and Stroke Association. Recruitment of solicitors for Free Wills Month March is scheduled to be completed by the end of January when attention turns to the October campaign. The promotion runs from Wednesday 1st

March to Friday 31st Marchinclusive. Appointments have to be made during March, though the actual appointments can take place any time afterwards to suit clients and solicitors. Solicitors interested in taking part in Free Wills Month should visit the campaign website at www.freewillsmonth.org.uk or call 0345 686 4309.

Legacies

A HISTORY OF PIONEERING CANCER TREATMENT Since it launched, The Institute of Cancer Research’s (ICR) free Will scheme has raised over £8m in legacy gifts, which have helped us make some of the most important discoveries in the history of cancer research. Help us continue our 100 years of ground-breaking research. From identifying cancer-causing chemicals in cigarette smoke, to the vitally important link between DNA damage and cancer, we’ve always been committed to improving treatment and prevention through our scientific research. Thanks to the research taking place at our labs in Chelsea and Sutton, we now understand more about the biology and genetics of cancer than ever before. This means we can diagnose patients earlier and target their treatment more effectively. As such, the proportion of patients surviving cancer has doubled since the 1970s. But we envisage a world where people can live their lives free of cancer as a life-threatening disease. We have bold plans to make this a reality. We’re using cutting-edge microscope technology to look in exquisite detail at the fundamental biology of cancer cells; we have plans to build a new Centre for Cancer Drug Discovery to help us discover more and better treatments, and tackle the challenge of drug resistance; and we’re investing in exciting new treatment approaches such as immunotherapy. Legacy donations are a vitally important source of funding for the ICR and past legacies have helped us to make some of our most significant discoveries. At the ICR we offer a Will for Free scheme, 32 SurreyLawyer

enabling people aged 60 and over to make a basic Will or update an existing one – and the ICR will cover the cost. Almost 400 solicitors across the south and east of England have partnered with the ICR on our Will for Free scheme, and together they helped secure almost £2.5million in legacy pledges in the last financial year. The importance of these pledges cannot be overstated; knowing that we can rely on future funds from legacy gifts allows us to embark on major research initiatives and invest long-term in finding the solutions to defeat cancer. To find out more about the ICR and our Will for Free scheme, please visit our website icr.ac.uk/legacy or call Marcia on 020 7153 5387 or email legacy@icr.ac.uk. “Having been a researcher at the ICR for almost 20 years, I have seen it go from strength to strength. I am proud of the impact its research has had, and will continue to have in the future. I decided to leave a legacy to the ICR in my Will because I want their vital work to continue.” Professor Robin Weiss FRS Former Director of Research at the ICR.

Book Review

“BREAKING LAW”

The Inside Guide to Your Legal Rights & Winning in Court or Losing Well By Stephen Gold ISBN: 978 0 99358 360 5

BATH PUBLISHING www.bathpublishing.com www.breakinglaw.co.uk

A FIRST RATE AND DELIGHTFUL REMINISCENCE FROM FORMER JUDGE, STEPHEN GOLD WHO TELLS IT AS IT IS! An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Anybody who has appeared in front of Stephen Gold will have remembered such an experience and this book will prolong the memory (it does for us)! His delightful new title “Breaking Law” is written now in his capacity “as a former judge” and is a cracking good read for all! It’s his specific points and views in the book which will carry much weight for the modern practitioner because Gold shares with us much of the difficulties and problems which all participants in the civil justice process face. And he does it (as is to be expected) with a certain amount of wry humour for those of us who know where to look for it! So, what is “Breaking Law” all about- just that, but not ‘breaking the law’ and do visit his website for additional illumination and the blogging! We are told the book is “a unique, inside guide to the law which is irreverent, entertaining and bulges with advice on what the law can do for you in countless situations”. And it is again just that when you read the easy flowing passages and reminiscence.

The book remains a darned good read for those who must go to court for the first time without a lawyer to help them. We found the template letters and court documents very helpful for this is most certainly a book for laymen as well as lawyers. making “Breaking Law” as much a legal manual as well as a cheerful autobiography. And he has judged most of the time with the bare minimum of backup help which many of us are very familiar with- something we hope will be addressed as digitisation hits us with the Fourth Industrial Revolution on top of us all. Not all the answers are here, of course, in the book but it’s refreshing to hear from a man, recently retired from the Bench, with such honesty and openness about the problems we face daily as legal advisers. Thank you, Stephen, and a very happy retirement to you!

BREAK CLAUSES (2nd Edition) By Mark Warwick QC and Nicholas Trompeter ISBN: 978 1 78473 034 5 JORDAN PUBLISHING LIMITED also available as an eBook www.jordanpublishing.co.uk

AN OFTEN OVERLOOKED AREA OF LEASES AND CONTRACT LAW: SO WELL EXPLAINED BY WARWICK AND TROMPETER IN THEIR NEW SECOND EDITION FROM JORDAN An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers The authors of this esteemed work, Mark Warwick QC and Nicholas Trompeter, have undertaken a substantial re-write of the text for the second edition. They comment that the blame for the increase in the large number of cases cited lies on their shoulders and not that of the judiciary. The value of this book is that the case-law included here has tended “to emphasize the importance of strict compliance with the conditions in a break clause, and the content of the break notice” which can often be overlooked. And prominent amongst the authorities emphasizing the importance of the careful drafting of a break notice is the decision in Siemens Hearing Instruments Ltd v Friends Life Ltd [2014] in the Court of Appeal.

that an apparently relatively niche topic such as break clauses in leases can provide enough in the way of legal problems and issues to justify a book running to over 300 pages and over 500 reported cases”. As advisers and professional will know, it is no surprise that break clauses in leases “have given rise to so much difficulty” as Neuberger puts it. He goes on, saying that “experience shows that there is something about the landlord and tenant relationship generally that has a tendency to produce uncertainties, conflicts and disputes, which require legal advice and often end up in court, in arbitration or in mediation”. And this is where “Break Clauses” comes into its own as a leading statement on a very specific area of the law of leases, so well and clearly structured which allows lawyer and layman alike, to deal with the problem in hand.

Another most important topic which the authors have given its own chapter is the recovery of ‘overpaid’ rent and other sums: subject-matter which often features of great importance when one first sees the client with a rent problem.

The last word must be left to Neuberger as it is surely an excellent and much needed book “which treats a difficult and significant topic very well both academically and practically”.

So, the Supreme Court decision in Marks and Spencer plc v BNP Paribas Services Trust Company (Jersey) Ltd [2015] is well covered by a consideration of the implication of a term as to the repayment of rent and detailed discussion of the main points arising from this case.

This book is fundamental for your law library if you act in break clause cases which can often cover ancillary matters such as insolvency, assignment, estoppel, mistake, side agreements and unjust enrichment. We have found this title the best short statement of break clauses available for practitioners and litigants in person today.

Therefore, it can be no surprise that David Neuberger writes in the Foreword that “it is striking, and to the uninitiated it may be surprising,

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The law is stated as at 25th February 2016.

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