Winter Issue 2015
SurreyLawyer THE VOICE OF SURREY SOLICITORS
Inside this issue: ~ ~ ~ ~
HFS Milbourne Review (cover story) The Conveyancing Process Expert Witness Focus Morrisons Solicitors - Rebrand
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Contents Intro PUBLISHER Benham Publishing Limited 3tc House, 16 Crosby Road North, Crosby, Liverpool L22 0NY Tel: 0151 236 4141 Facsimile: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com ADVERTISING AND FEATURES EDITOR Anna Woodhams STUDIO MANAGER Neil Lloyd
4
List of officers
5
President’s Jottings
6
CEO Report Local Issues
8-9
Finance 10
The clock is ticking for smaller Law Firms
11
Independent Accountants’ Reports still required for Law Firms Education
ACCOUNTS Joanne Casey
12
Matching apprentice aspiration with the ambitions of legal employers
13
Free risk management seminar for the busy practitioner
MEDIA No. 1356 PUBLISHED November 2014 © The Surrey Law Society - Benham Publishing
Expert witness 14-15
LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press.
DISCLAIMER The Surrey Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation. All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.
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The cost of reform The quality of analytical results? Marketing
18-19
COVER IMAGE Rod Milne, Joint Managing Director at HFS Milbourne Financial Services Limited.
20
Anyone wishing to advertise in Surrey Lawyer please contact Anna Woodhams before copy deadline. Email:
anna@benhampublishing.com
Tel:
0151 236 4141
Anyone wishing to submit editorial for publication in Surrey Lawyer please contact Sue Seakens, before copy deadline. Email:
sueseakens@surreylawsociety.org.uk
Tel:
01344 860830
A weight off your shoulders... and hips Legacies
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Leaving their beloved four-legged friend without an owner Property Stages of the commercial conveyancing process
23
Conveyancers duty to due diligence property searches
24
Understanding challenges in conveyancing
26
The Law Society's conveyancing portal
28
We Three Kings of Negligence Are?
Copy Deadlines 27th February 29th May 21st August 17th December
Morrisons Solicitors - Rebrand Health
22 Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.
What makes a good expert witness?
17
Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.
Spring 2015 Issue Summer 2015 Issue Autumn 2015 Issue Winter 2015 Issue
Local news
Management 30
When a rule loses meaning does it lose authority?
31
How professionals can get paid what they deserve
32
Demise of ‘death tax’
33
Where are you going and what do you want to be? Employment
31
Dealing with the challenge of maternity leave Legal News
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Legal News Surrey Lawyer 3
Officers PRESIDENT
COMMITTEE MEMBERS
LAW SOCIETY COUNCIL MEMBERS
SUSHILA ABRAHAM
MAREK BEDNARCZYK Hart Brown Resolution House, Riverview, Walnut Tree Close, Guildford, GU1 4UX DX 2403 Guildford 1 Tel: 01483 887704 Fax: 01483 887758 Email: msb@hartbrown.co.uk
DAVID STEED Harold Bell & Co 174 Kingston Road, Ewell KT19 0SD Tel: 0208 393 0231 Fax: 0208 393 0155 Email: ds@haroldbell.co.uk
S Abraham Solicitors 290A Ewell Road, Surbiton KT6 7AQ Tel: 020 8390 0044 Email: office@sabrahamsolicitors.co.uk
VICE PRESIDENT DANIEL CHURCH
WIN CUMMINS
TWM Solicitors LLP
Mackrell Turner Garrett
123 High Street, Epsom KT19 8AU DX 30710 Epsom
21-25 Church Street West, Woking, Surrey GU21 6DJ Tel: 01483 755609 Fax: 01483 755818
Tel: 01372 729555
JOHN PERRY Palmers Solicitors 89-91 Clarence Street Kingston upon Thames, KT1 1QY DX 31524 Kingston upon Thames Tel: 020 8549 7444 Fax: 020 8547 2117 Email: john.perry@palmerssolicitors.co.uk
Email: win.cummins@mtg.uk.net
Fax: 01372 742101 Email: daniel.church@twmsolicitors.com
ELIZABETH EYRE Barlow Robbins LLP Church House, 30 Church Street,
DEPUTY VICE PRESIDENT
Godalming, Surrey, GU7 1EP
MARK GOUGH
DX 58351 Godalming 2 Tel: 01483 417121
Solicitor
Fax: 01483 426836
22 Woodlands Road, Little Bookham,
Email: elizabetheyre@barlowrobbins.com
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
Surrey KT23 4HF GLORIA MCDERMOTT
Tel: 01372 230786
18 Station Approach, Virginia Water GU25 4DW
Email: mark@markgoughlaw.com
DX 94652 Virginia Water
SUB COMMITTEES
Email: gloria.mcdermott@virginmedia.com
QUO VADIS (Strategic Planning) Daniel Church (Chair) Nick Ball Marek Bednarczyk Mark Gough Ken Seakens
HON SECRETARY JULIE ROWE
KIERAN BOWE
Palmers Solicitors
Russell-Cooke Solicitors
89-91 Clarence Street
Bishops Palace House, Kingston Bridge,
Kingston upon Thames KT1 1QY
Kingston upon Thames, Surrey, KT1 1QN
DX 31524 Kingston upon Thames Tel: 020 8549 7444
DX 31546 Kingston upon Thames
Fax: 020 8547 2117
Tel: 020 8541 2041
Email: julie.rowe@palmerssolicitors.co.uk
Fax: 020 8541 2009 Email: kieran.bowe@russell-cooke.co.uk
KEN SEAKENS
CONVEYANCING & LAND LAW Win Cummins (Chair) Gary Score* Maralyn Hutchinson* Ken Seakens Matthew Truelove*
Seakens Solicitors 18 Station Approach, Virginia Water GU25 4DW HON TREASURER
DX 94650 Virginia Water
NICK BALL
Tel: 01344 843666 Fax: 01344 844584
Howell Jones Solicitors 75 Surbiton Road, Kingston upon Thames,
Email: ks@kseakens.co.uk
Surrey, KT1 2AF
IAN WILKINSON
DX: 57715 Surbiton
The Castle Partnership 2 Wey Court, Mary Road, Guildford,
Tel (Office): 020 8549 5186
Surrey GU1 4QU
Tel (Fax): 020 8549 3383
Tel: 01483 300905
Email: nick.ball@howell-jones.com
Email: ian@castlepartnership.co.uk
FINANCIAL Nick Ball (Chair) Kieran Bowe Mark Gough Ken Seakens SOCIAL Daniel Church Gloria McDermott John Perry* Julie Rowe Ken Seakens *Non-Committee Member.
membership details Annual Subscriptions:
£85 per person, per year.
Corporate Subscriptions:
(20+ fee earners) £1,700 per year
Solicitor
(not in private practice) £55
Solicitor
(not practising) £30
Honorary Membership:
free
Associate Membership:
free - no voting rights
4 Surrey Lawyer
To apply for membership please contact: Sue Seakens, Chief Executive Surrey Law Society, 18 Station Approach, Virginia Water GU25 4DW Web: www.surreylawsociety.org.uk DX 94652 Virginia Water Email: sueseakens@surreylawsociety.org.uk Tel: 01344 860830
Editorial
President’s Jottings WINTER 2015
I would like to begin by expressing my thanks to Marek Bednarczyk, our outgoing President, for the work he has done for the Society during his term.
B
ecoming a sole practitioner was not a decision I took lightly some 15 years ago. I did not do it on my own and I would like to thank my Husband Mathew for the support and backing he gave and continues to give me throughout my career. Like Marek, and possibly many of you, I have seen the decline in legal aid, as well as the state the whole legal system is in today, which is very worrying. “Access to Justice” a very poignant phrase as we approach the 800th anniversary of the sealing of Magna Carta, being the very foundation for the Rule of Law and our legal system. The theme for my year as president is Access to Justice. I feel very strongly about this and want to see that we as a Society in Surrey play a very active role in this. We are now in an era where Access to Justice may be lost. What are we doing as a profession to preserve this? How can we make Access to Justice work? We need to be out there either writing to our MPs or the Government raising our concerns. It is not talk alone but we do have to walk the walk or else the right to justice will be lost. We have seen the changes brought about by LAPSO - the Legal Aid, Sentencing and Punishment of Offenders Act 2012 where hundreds of thousands of people have lost the ability to access justice. Has this been thought through? Definitely not. An idea where the sufferers are the public, the courts and us lawyers. It has also caused chaos in the family courts, a rise in litigants in person, a rise of McKenzie friends and the risks it brings with it. So, as a society we need to do something. How can we do this? You as individuals and firms responding to all those numerous consultations that are being published. We as a Society are responding but that is not enough. We need all of you to also respond.
As all of you may be aware, some of the consultations are : The Regulation of Consumer Credit Activities, Overseas Accounts Rules, Training for Tomorrow: A Competence Statement for Solicitors, Regulation of Insolvency Practice, Proportionate Regulation: Reporting Accountant Requirements, Separate Business Rule which came out of the LETR (Legal Education & Training Review) and many more. So I do urge you all to look at these as what is happening around us does affect each and every one of us. We also have the shift in policy / approach from the SRA – This connects closely with the newly issued Competence Statement which will be the benchmark the SRA uses. Update to the Risk Outlook 2015, the recent statement from the SRA on handling concerns about solicitors. We appear to be snowed under with lots of regulation. But in spite of this we should not forget that we need to provide Access to Justice. As a Society we have been trying very hard to work with our members and as Marek had said about Hall Associates, we need to be able to engage with our members in Surrey. I know Marek has been out visiting firms and encouraging them to become members of the Society. We may all think we can manage on our own and the true fact is that we really cannot. Your Surrey Law Society is here to help you. Last month I had a meeting with the Director General of the Council of Mortgage lenders putting to him the issues faced by many small firms and the way Lenders are behaving. I do hope there will be some understanding of how we work. I am sure those of you who have a conveyancing practice are aware of the amendments to the CML Handbook as of 1st December 2014.
Surrey Law Society is always here to listen and help its members but we do need your help to spread the word of what the Society has done and is doing for its members. You are always welcome to speak to me or any of the committee members if you need any assistance. I am pleased that the President of the National Law Society Andrew Caplen’s theme for his year as President is also Access to Justice and we at Surrey will continue to work with the Law Society on this. On behalf of the Society I would like to thank Robert Bourns, Deputy Vice President of The Law Society of England and Wales, for coming to speak to us at this year’s AGM & Members’ Reception in November at the Guildhall, Guildford. I would also to thank all of you who joined us for this very enjoyable event. Surrey Law Society organises other social events throughout the year. Next year’s Gala Dinner is taking place at the Runnymede Hotel in Egham on 18th June to celebrate the 800th anniversary of Magna Carta and it is also the Bicentenary of the Battle of Waterloo. So please do join us with colleagues and friends for this fabulous event. Finally the charity I have nominated in my presidential year will be the Autistic Society in Surrey and the funds to be used to develop advocacy skills in children and adults to enable them to speak up and not to remain within themselves. I felt as a lawyer that this fits in well with my theme for the year. n SUSHILA ABRAHAM, President
Surrey Lawyer 5
Editorial
CEO Report Winter 2015 Since my last report we have begun our new Presidential Year at SLS, saying goodbye to Marek Bednarczyk and welcome to Sushila Abraham.
You can read her first report on page 5 and find out more about what she has in store for us during her year in office. You will also get a good chance to meet Sushila and the rest of the Committee at one of the President’s Area Lunches and of course our major Magna Carta 800th Anniversary Celebration Dinner at Runnymede on Thursday 18th June… visit the website for further details… bookings are already open for this magnificent event. During the last quarter we have been busy working on a total review of our website, which is now seven years old and beginning to show its age! The excellent Membership Survey conducted on our behalf by Hall Associates has indicated that this is one area for improvement. My special thanks to those of you who contributed to the Survey last year. On the whole it seems that members value and appreciate the work we do but there is definitely work to be done to ensure that we provide the best service possible for our Members and we are already addressing some of the key points that you raised. May I take this opportunity to thank Marek, the Officers and Committee Members for all their hard work, commitment and support over the past year. One key area for development is the Job Search assistance that we have provided on a rather ad hoc basis in the past. We do not act as an employment agency, but simply circulate the details and provide contacts for potential applicants to follow up. Therefore we do not make a charge for this service, but it does need a bit more structure. We are planning an online Jobs Noticeboard where notices can be placed for vacancies within law firms, for legal and support staff, plus locum 6 Surrey Lawyer
positions and situations wanted. This seems to be a very popular service with members now that the market place is improving and firms start to recruit. As always at the start of the new CPD year I want to thank the very generous support of our sponsors – HFS Milbourne, Thames Water, Wilkins Kennedy, STL Group, Benhams Publishing, Wesleyan and St. James’s Place. We are also extremely grateful for the support, financial and practical, being provided by Index Property Search for the Magna Carta Celebrations. Without this invaluable support by all our sponsors we would be unable to offer the range of quality speakers, venues and events at such affordable rates for our Members. I must also thank the sponsors and hosts of our ‘free-to-members’ seminars, especially Russell-Cooke in Kingston. In 2015 we will continue to work with the Universities, supporting their various competitions and events. In November 2014 we once more provided 12 willing volunteer judges for the Client Interviewing Competition. Everyone who gets involved in this event provides excellent feedback and I think that they would all agree that this is a very interesting and enjoyable process. My grateful thanks to our volunteer judges, and congratulations to the winning team from the University of Law, Tilly Traill and Michael Brainerd (picture right with 2014 President Marek Bednarczyk). Runners up were Lucy Barnes and Sultan Kazi from Surrey University, and Kate Dansie and Laura Ludlam also from the University of Law, Guildford. The Social Sub Committee will be starting to plan the social events for 2015 in January and hope to be able to
bring you a host of enjoyable and fun events. There are already plans underway to hold a Golf Day in conjunction with the South West London area society of the Institute of Chartered Accounts of England and Wales. As always we will have the Legal Brain of Surrey Quiz and the Surrey Legal Walk but there is still much work to be done and events each year reflect the interests of our current President… so keen an eye on the website for updates. Finally all that remains is for me to wish you all a very happy, healthy and prosperous New Year. Sue Seakens n
Local Issues
University of Law Annual Awards Evening Students, who graduated from the University of Law in Guildford in the summer with the highest marks, celebrated their academic success at our annual awards evening in late October. This was a notable awards evening as it was the first time that The University of Law has been able to recognise the achievement of a student who has graduated with an LL.B. The University of Law launched the two year undergraduate degree in 2012 and is now offering a three year undergraduate law degree. Grace ColeHawkins was awarded The University of Law prize for the highest average mark on the LL.B 2012/2014. Sarah Pooley, Director of The University of Law in Guildford, said: “Our awards evening is a wonderful occasion as it is the culmination of the hard work of these students and the dedication of our staff. We are proud of our students’ achievements and wish them success in their future careers.” The event was hosted at The University of Law in Guildford on 23rd October and was attended by many of the organisations which sponsor prizes. In total 18 prizes were awarded to students across three courses; the LL.B, the law conversion course (Graduate Diploma in Law) and the Legal Practice Course. We would like to thank Coffin Mew Solicitors LLP, Clyde & Co LLP, Charles Russell Speechlys LLP, DLA Piper LLP, Fearon & Co, GCL Solicitors LLP, Howell Jones LLP, Surrey Resolution, Surrey Law Society and the STL Group plc for their continued support.
Top GDL Student, Rhydian Grange, receives SLS award from Sushila Abraham The University of Law is a leading international professional law school and has eight centres across the UK. For further information about the University please visit www.law.ac.uk n
Charles Russell and Speechly Bircham merged on 1 November 2014 to create Charles Russell Speechlys The new firm has 170 partners, a total of 500 lawyers and revenues of £135m. The partners of both Speechly Bircham and Charles Russell voted overwhelmingly in favour of the merger in July this year. The combination creates a top 30 UK law firm that combines a pre-eminent private wealth practice with a significant business law capability. The firm provides advisory, transactional, regulatory and contentious services to major corporates, privately-owned businesses and wealthy individuals. It has significant strength in the real estate and construction sectors, transactional expertise across the financial services sector, and specialist employment, intellectual property and commercial teams advising in sectors such as healthcare, retail, leisure, sport and TMT. What distinguishes the new firm is the strength of its commitment to private wealth. The merger reinforces the firm’s ability to advise wealthy individuals, family offices, private banks and wealth
8 Surrey Lawyer
managers and large, privately held businesses seamlessly. Headquartered in London, the firm has a growing network of offices in some of Europe’s and the Gulf’s main wealth and business centres, as well as long-standing relationships and networks throughout the United States, Africa and the Caribbean. “The size and structure of the integrated firm unlocks significant opportunities for our clients and for our staff,” said James Carter, Charles Russell Speechlys’ managing partner. “Partners from both firms had the desire to create the market-leading firm providing business law
and private wealth advice internationally. The creation of Charles Russell Speechlys takes us a long way towards meeting that shared and now very achievable objective.” “This is a significant and exciting development for two firms that can both trace their heritage back for well over 100 years,” said Christopher Page, Charles Russell Speechlys’ senior partner. “We believe that the combination enables us to offer clients an integrated approach with greater depth of expertise and to continue our long traditions of delivering first-class client service combined with trusted legal insight and sophisticated commercial awareness.” n
Local Issues
Council Member’s Report by John Perry
Firstly, personal congratulations to Sushila Abraham on being elected the President of the Surrey Law Society for Magna Carta Year. Surrey are now the envy of the local law society community for nailing a commemorative dinner in Magna Carta week at Runnymede; quite a coup that. It was also a personal pleasure to welcome Robert Bourns the Deputy Vice-President of the Law Society to the Surrey AGM. We joined Council together and did our equality and diversity training together (a compulsory requirement for all Committee Members at the Law Society). Although now working in the City, he is very firmly rooted in the High Street Solicitor tradition having been heavily involved with Bristol Law Society for many years, and he will be a very erudite and skilful President of the Law Society in 2 years’ time. You will all by now have heard of the Law Society Council’s decision to take on the Government for a Judicial Review of the Legal Aid Crime Duty Tender process. We are offering financial support to the Criminal Law Solicitors’ Association and the London Criminal Courts’ Solicitors Association to support their work on their potential reviews. The proposed cuts are clearly unworkable and by no stretch of the imagination could possibly be in the public interest. Why do people not accept that solicitors are always thinking of their clients first, and the effect that a reduction in access to justice will have, not only on the individual, but on the whole of society in general. We shall see the outcome in due course but I suggest that those who say the Law Society never do anything for them might like to think again on this occasion. The Law Society annual review has again stressed the need to engage with the profession, but you know, that is a two way process. The Surrey Law Society is a large
and vibrant society with a very great number of extremely able solicitors. At the AGM there were no more than 30 present. This may have had something to do with the weather and the traffic, but still when the profession is being threatened from all angles it is disappointing that people do not feel able to turn up to learn the latest news and work out what is best to be done. It is not just one particular discipline that is under attack. The criminal Legal Aid lawyers clearly are, the medical negligence lawyers have recently been again and the whole business of the Lender Exchange, CQS and Panel Membership is fundamental to all the conveyancers. Private client solicitors are not exempt as the Legal Services Board encourage people to undertake probate work on their own and are looking to digitalise all signatures on such unimportant documents as Wills and Lasting Powers of Attorney. The Council really does need the profession behind it as it negotiates at the highest level with Government departments and ministers of state. If they were to ask a question how many solicitors contacted their Council Members to express their concerns, there would largely have to be an embarrassing silence, which does not help. It is tempting to think that whatever is done will not bear fruit but it is surprising what can be achieved with the right kind of campaign supported throughout the profession. How often do you bend the ear of your MP about your particular problems, and how often do your clients go into battle
on your behalf because, as we all know, the vast majority think we do a good job for the right price and they can’t understand why we are constantly under pressure from the Government and regulation generally. End of rant and I wrote this with a streaming cold! On more pleasant matters, Andrew Caplen the President raised the profile of Access to Justice by walking the whole length of his constituency, Hampshire, from Inkpen Beacon to Lymington, 70 miles in 56½ hours, including two overnight stops. On the principle that anybody who does that deserves to be supported financially, so you don’t have to do the walk yourself, all contributions to Access to Justice Foundation can still be received in Andrew’s name, and will be very welcome. Who knows what 2015 will bring; with the election set to produce any one of about 6 different results. The Law Society is planning for all eventualities to hit the ground running with whichever single party or combination of parties end up trying to run the country. We wish to mobilise quickly so that we can make our position perfectly clear from the outset. So please keep an eye open when we ask you for information, please feel free to engage, and give it as quickly as possible. Whatever 2015 brings I am sure this great profession of ours will rise above the traumas and continue to give good service to the public free from U-turns and giveaways based purely on self preservation. n
Hart Brown’s expertise in dealing with serious injury claims recognised with appointments to AvMA and Headway Marek Bednarczyk is the Immediate Past President of Surrey Law Society and a partner at Hart Brown since 1995. Specialising in personal injury and clinical negligence, Marek begins another 5 years on the AvMA Panel (Action Against Medical Accidents). AvMA is a charitable organisation that helps people who have suffered an injury from a medical accident, by providing free and confidential advice and support. Marek has also been a long standing member of the Law Society/SRA Clinical Negligence Panel and has worked for many years dealing with legal aid appeals for the Legal Aid Agency (LAA) an organisation charged with the administration of legal aid. He has been a member of the
Association of Personal Injury Lawyers (APIL) for nearly 20 years and is an accredited APIL Senior Litigator.
It’s also been confirmed that Hart Brown has also been accepted onto the Headway Panel, in recognition of the work undertaken by Marek and his colleague Caroline Kerr, an Associate at Hart Brown. Headway is a charity helping people who have suffered brain injury through personal injury or medical accident. Caroline originally qualified and worked as a doctor, later retraining as a solicitor. She has a Masters degree in Medical Law and Ethics and is a litigator member of APIL. She is also a member of The Law Society's Personal Injury Panel. Her background means that not only does she have a real understanding of a wide range of injuries
and conditions and their complications but also she has practical experience of what happens on a day to day basis in hospitals which is particularly useful when dealing with medical negligence claims. Involving a tough selection process both of these panel acceptances highlight the expertise of the team when it comes to dealing with serious injury claims. It is important that just and fair settlements are obtained for seriously injured people and also for patients and their families when something goes wrong. Obtaining the right help from the right firm will make that possible, members of the public can therefore be reassured that they will get the specialist care they need from accredited firms like Hart Brown. n
Surrey Lawyer 9
Finance
The clock is ticking for smaller Law Firms Rod Milne, joint managing director of pension specialists HFS Milbourne, looks at the impact of auto-enrolment on SMEs. The Auto-Enrolment implementation or staging date for many SMEs falls between January to October 2015. If your law firm has between 30-58 employees it is highly likely that whoever is ‘responsible for HR’ has received notification from the Pension Regulator giving detailed information about its obligations under the Auto-Enrolment scheme including the specific date that full compliance with the new rules must take place by. Those with less than 30 employees need to be fully compliant within the next 18 months, the exact staging date being dependent on the firm’s PAYE reference number. Many smaller law firms do not have the luxury of an in house HR department to manage the administrative and regulatory burden of implementing Auto-Enrolment. Instead the task may be delegated to someone whose main focus is legal work. The general advice is not to under estimate the financial and administrative impact of implementing a new process and the complexities involved in the transition from any existing pension scheme. The sooner you start the easier the changeover will be. If the obligation to manage Auto-Enrolment has fallen to you, then here are some priorities to consider at the planning stage:
Reviewing existing pension plans Once you have a confirmed staging date it will become a driver to review existing pension arrangements to see what changes are required to comply with AutoEnrolment. It is essential that the current insurance provider determines whether you have a ‘qualifying scheme’ because not all existing pension plans will be suitable for transition to Auto-Enrolment. Older pension schemes may have become uncompetitive over time and the review process may identify an alternative which meets the new rules and which is cheaper and more efficient to run with benefits for both employer and employee. In our experience, it is often the payroll system that becomes a bit of a hindrance. The stored data may be incomplete or out of date. Or the software may just not be geared up to cope with the requirements of Auto-Enrolment without a lot of manual intervention and this in itself just adds to the workload.
Choosing a scheme Once a shopping list of requirements is agreed, the next step is to identify a scheme which meets the needs of employer, employee and those of the Regulator. There are numerous options available and shopping around will help you find the provider that offers the most attractive terms.
10 Surrey Lawyer
Staff incentives For some employers the main focus will be to implement minimum legal requirements. But, as higher pension contributions can help attract and retain quality staff, others will take the view that Auto-Enrolment is an opportunity to incentivise staff through more attractive pension provision and this can be built into any new scheme.
How much will it cost us? In addition to the contributions which have to be made by the employer on the employee’s behalf which are linked to salary and usually run at up to 3%, there are the costs involved in setting up and managing the ongoing scheme. At the very least this can include additional manpower, training, payroll changes, new software and technology which all have to be factored in.
How do we get staff buy in? It is important that staff are involved every step of the way in order to achieve ‘buy in’. On-going communication in the form of both group presentations and individual ‘one to one’ pension surgeries can help. Information packs will need to be provided and updated on a regular basis to keep staff informed of scheme progress. Some clients running larger schemes even operate online portals and e-communication programmes to keep employees updated on pension news and these are options that can be considered. It is worth bearing in mind that a younger or more transient workforce will be far less engaged with the idea of saving for a pension than older or better paid employees who may see a decent pension scheme as a priority.
Review and support: Once the new scheme is in place, it will be important to establish a structured process for ongoing assessment and review. New and existing employees will need to be enrolled into the scheme as they become eligible and records need to be kept for up to six years. Employees, especially those approaching
retirement age, will want to discuss their individual pension plans and may even require retirement counselling. As well as opportunities for face to face discussions, a system for dealing with queries by telephone and mail should also be made available so that urgent issues can be resolved quickly. Most employees will want to achieve the greatest possible return on their pension investments and employers will therefore require an annual performance review from the pension provider or financial adviser along with an update on any relevant changes to the Regulations.
Cost effective advice Some firms may be confident enough to implement Auto-Enrolment without any external help. It is the finer technical details that will cause employers the biggest problems and it is prudent for companies with no experience of running workplace pension schemes to call in financial specialists for assistance. HFS Milbourne has made it cost effective for law firms to embrace Auto-Enrolment by creating a menu of services designed around the key stages of implementing a scheme – from data gathering and scheme assessment at the beginning of the process to ongoing review and assessment once the programme is in place. Clients can choose to ‘buy’ in as much expertise as they require. HFS Milbourne can manage the whole process or just specific elements of it, whichever best suits the client’s needs. This provides the flexibility that law firms need particularly those that will be implementing a pension scheme for the very first time. Plus, more importantly, bringing in external support will leave your people with time to focus on what they do best – advising clients on legal matters. n HFS Milbourne Financial Services Limited Wonersh House, The Guildway, Old Portsmouth Road, Guildford, Surrey GU3 1LR Tel: 01483 468888 Email: info@hfsmilbourne.co.uk Web: www.hfsmilbourne.co.uk
Finance
Independent Accountants’ Reports still required for Law Firms Following a process of consultation, the Solicitors Regulation Authority (SRA) has confirmed that law firms will still be required to commission independent accountants' reports within six months of the end of their financial reporting period, writes Tommy White, partner at Surrey Law Society sponsors Wilkins Kennedy LLP. However in a departure from the current position, only those reports that are qualified will now have to be filed with the SRA. Firms that receive 100 % of their fees from legal aid work will be exempt from needing to commission a report. The consultation proposal originally put forward by the SRA was that the requirement for every firm that holds client money to have its client account procedures reviewed annually by an external accountant would be removed. This historic requirement was neither proportionate, nor targeted, and was required irrespective of whether the firm posed a high or low risk in respect of the misappropriation of client money. It was also proposed that this approach was unnecessarily costly to the large number of firms that pose only a low risk to consumers of legal services. The changes announced within the SRA’s programme of regulatory reform have been considered within the framework of opening the market ‘to new businesses and services and reducing the burden and cost of regulation’. Given the level of mergers
and acquisition activity at the smaller/more local end of the legal sector in the UK, there is no doubt that this is an important objective. The new SRA requirements will ensure that they will continue to remain informed of firms that have poor compliance with the accounts rules. This should also mean that the risk of negative press arising from legal practices with poor compliance will not affect more compliant firms who strive to ensure their internal client money controls are as robust as possible. As part of Wilkins Kennedy’s original response to the consultation, we suggested that the current format of the report should have been considered, perhaps reducing the focus from non-trivial breaches of the rules, whilst flagging financial issues which formed part of the SRA’s recent drive on financial stability in law firms. However, we are pleased the SRA has decided to retain the requirement of an annual accountant's report as it will mean the more compliant firms will be unaffected and users of legal services can
have a certain degree of comfort that the firm they have engaged is subject to external review. However, we do have a certain degree of disappointment that the opportunity to reassess the report in its current format was missed, so we await the next consultation with bated breath. Wilkins Kennedy LLP was established in 1882 and has grown to become one of the UK’s top 20 firms of Chartered Accountants and Business Advisers. The firm has 72 partners and approximately 500 staff in fifteen UK offices, including our Surrey offices based at Heathrow and Guildford. n For further details: Tommy White, based in the Heathrow office of Wilkins Kennedy LLP 01784-435561 tommy.white@wilkinskennedy.com www.wilkinskennedy.com
Surrey Lawyer 11
Education
Matching apprentice aspiration with the ambitions of legal employers In the past some young people faced a stark choice when they left school. Would they follow the well-trodden academic route to university or the arguably less certain path of an apprenticeship. However, there has recently been a sea change in the “brand” value of apprenticeships. Businesses, young people, universities, parents, colleges and adult learners are now embracing the opportunity represented by apprenticeships. All parties are recognising the value of being able to earn a wage while training and working in a real job, gaining a valued qualification and laying down the foundations for a successful career.
The Benefits of the Apprenticeship Route to the Legal Employer As this renewed enthusiasm for apprenticeships builds, it is time to consider whether legal employers can also reap the benefits of employing an apprentice. The benefits of the apprenticeship route are many and include: • The availability of Government funding for apprenticeships and a nationallyagreed training structure; • An ability for employers to “Grow their Own” talent in a cost-effective way, whether that be a solicitor, paralegal or legal services technician; • An increase in the diversity of the workforce and, in particular, the younger workforce in a business; • The existence of a skilled and motivated workforce with increased productivity. (Indeed the National Apprenticeship Service reports that 72% of businesses found there was an increased productivity when employing an apprentice); and • The ability for a business to be viewed as a Learning Organisation dedicated to improving the skills of staff.
Types of Apprenticeship Programme Currently, there are in essence two types of programme available. They have been designed in such a way that they can be completed in succession or as stand-alone programmes. They cover legal/office administration at GCSE level equivalent and paralegal/legal executive at A Level and first year undergraduate level. For the future, the government is working with law firms, other legal employers such as banks, the SRA and legal education providers, such as the University of Law, to set up a new national ‘Trailblazer’ standard for all legal apprenticeships. This will include Solicitor Apprenticeships at masters level equivalent.
12 Surrey Lawyer
The Paralegal/Legal Executive Apprenticeship Looking at the programmes in more detail, the paralegal/legal executive apprenticeship is deliverable in two levels known respectively as the Advanced Apprenticeship (A-level standard completed in 18-24 months) and the Higher Apprenticeship (up to 1st year University standard completed in 24-30 months). The delivery of these differing level programmes requires a mix of education expertise. For this reason, the University of Law is working with leading further education (FE) colleges in order that each party can do what it does best. FE colleges have the knowledge of and expertise in delivering apprenticeships, while The University of Law offers the chance for apprentices to learn in a university environment. The University of Law also seeks to attract legal employers to commit to this route into the profession by providing the opportunity to undertake an apprenticeship Clearly, a legal education provider will need to listen to what the legal employers want from apprenticeships if they are to secure their commitment to the programme and thus The University of Law welcomes discussion on the subject with prospective employers.
Solicitor level - the Articled Apprenticeship As a separate development, outside of the Government schemes, the University of Law has developed a six year route to qualification as a solicitor which is suitable for both young entrants to the profession and career changers. It incorporates a parttime LL.B, a part-time LPC and Legal Skills Courses. This six year path takes advantage of the recent changes to the SRA’s training regulations which allow a student to undertake their “Period of Recognised Training” (previously the training contract) whilst they study. The University of Law has just launched the Articled Apprenticeship with the Government’s support. The costs of undertaking the programme of study are the same as for any other student, but crucially these employees/students earn while they learn.
Developing Partnerships with Legal Employers Of course, apprenticeships are not just about raising student aspiration. To be successful, apprenticeship programmes will need more innovative partnerships between business and education providers.
Apprenticeships in the law could become an established but alternative route into the law provided such partnerships have sufficient focus on the business needs of legal employers. Key business considerations for employers could include: • Enabling progression from the role of legal secretary to a technician level and then, potentially, to qualification as a solicitor; • Developing a clear connection between the qualification attained and the standards and experience needed in law firms. • Ensuring that apprentices are properly and rigorously assessed in the workplace for their competence and at college / university for their technical knowledge; and • Making sure that each apprenticeship programme is employer-designed and labour-market driven. If the apprenticeship programmes are welldeveloped then there is no reason why they shouldn’t represent a “win-win” for the profession and the apprentices alike. n Sarah Pooley, Director The University of Law, Guildford If local practitioners are interested in exploring the apprenticeship route into the profession further, please do contact Sarah Pooley at The University of Law, Braboeuf Manor, St Catherines, Guildford GU3 1HA. email to: Sarah.Pooley@law.ac.uk or call: +44 (0)1483 216812
Education
Free risk management seminar for the busy practitioner Wednesday 28 January 2015 from 6.00pm to 9.00pm
•
Russell-Cooke, Bishop's Palace House, Kingston-Upon-Thames, Surrey KT1 1QN
The seminar will take the form of a panel discussion followed by a Q&A discussion and drinks reception.
Please Note - This is not a Surrey Law Society event so to register your interest you must email to events@russell-cooke.co.uk or call +44 (0)20 8394 6372 and quote 'SLS Member Request'
6.00pm - arrival
Seminar Background:
8.15pm - networking & drinks
Probate disputes are on the rise, and the files of those who prepare wills for clients are coming under increasing scrutiny during the course of litigation - with possible costs consequences for the solicitors concerned.
9.00pm - ends
Members of Russell-Cooke’s private client and trust and estate dispute teams invite you to a seminar to discuss the issues arising.
Topics will include: •
the importance of risk management
•
recent costs decisions as they relate to solicitors (Marley v Rawlings)
•
conflicts of interest and how to deal with them
•
capacity and other issues: what you should have on your file
risk management strategies and best practice
Programme 6.15pm - seminar commences
Speakers Alison Regan - chair, partner, Russell-Cooke Kieran Bowe - partner, Russell-Cooke Gareth Ledsham - senior associate, Russell-Cooke Hannah Mantle - associate, Russell-Cooke Emma Saunders - associate, Russell-Cooke
Booking NOW: events@russell-cooke.co.uk or call +44 (0)20 8394 6372 and remember to quote 'SLS Member Booking'
Surrey Law Society 2015 CPD Programme Diary Dates 28/01/15 Family Law Update Marc Saunderson 03/02/15 IHT & Capital Tax Planning Chris Whitehouse
8 0 0 t h A N N I V E R S A RY
10/02/15 Conveyancing Law Update Richard Snape 04/03/15 SRA/Regulatory Updates Alison Matthews 18/03/15 Planning Law Update David Forbes 23/04/15 Capitalisation & Protecting the Family Business Guildford Chambers
Surrey Law Society invites you to join us at our Gala Dinner to celebrate this moment in history
13/05/15 Vital Regulatory Compliance for Conveyancers Denis Cameron 20/05/15 Top Tips for Elderly Client Practitioners Gill Steel
at
The Runnymede Hotel
10/06/15 Costs Management and Budgeting Tony Guise
on
17/06/15 Taxation Traps for Conveyancers Stephen Desmond 09/09/15 Reporting on Title: what’s in, what’s out Hannah Mackinlay
Thursday 18th June 2015
23/09/15 Home Ownership & Childrens Law Guildford Chambers 30/09/15 Company Law Update Keith Lewington 14/10/15 Trust Law Update John Thurston All these half-day CPD Courses are SRA accredited 3 hours CPD and are held at Denbies Wine Estate in Dorking from 2.00pm - 5.15pm with registration from 1.30pm with tea and coffee. Parking is free.
Guest Speaker -
Sir Geoffrey Bindman QC Drinks Reception at 7.00pm, Carriages at 12.00 Dress Code - Lounge Suits & Posh Frocks Tickets - £60.00 per person inc VAT
Booking Fees: Member
£126.00 inc VAT per course
Non-Member
£252.00 inc VAT per course
Season Ticket Holder – annually renewable on booking/paying for 4 or more courses in advance £100.80 inc VAT per course. Full Course Details plus Terms and Conditions can be found at www.surreylawsociety.org.uk
To book email to: Sueseakens@surreylawsociety.org.uk or call
01344 860830 Surrey Lawyer 13
Expert Witness
What makes a good expert witness? A good expert witness will add value to a case and assist the court, through their specialist knowledge. They will use their considerable experience to explain, clarify and enrich the body of evidence and opinion, to the benefit of all parties. It’s all very well using an expert witness you know personally and can rely on, but what if they can’t complete their work to your deadline, or they don’t have the right specialism? Then you may have to instruct someone based on their reputation alone. So how do you make sure your own reputation is not damaged by a poor expert witness?
Make sure they’re a genuine expert Anyone can call themselves an expert. So check their ID, check their qualifications, and check to see if they’re registered with an independent regulatory body. It can help that some professional titles - for example “clinical psychologist” – are protected titles, whilst others – such as “consultant psychologist” – are not protected, so anyone can use them. If applicable, also ask to see a recent DBS (criminal record) check and professional indemnity insurance.
Make sure they have the right experience
that were introduced in October. As well as covering the above points, it adds that the expert must: • have recent, relevant, and documented experience of the issues of the case • keep up with recent developments in their field • know about relevant data protection and safeguarding concerns • actively seek feedback on their court work • be familiar with practice directions and regulations • clearly show where their opinion lies on the spectrum of mainstream opinion
Demand quality
Is the expert right for your case? Would a different expert be more qualified to answer the court’s questions?
Will their report be concise, measured and evidence-based? Being accomplished within their discipline isn’t a guarantee that they’ll be able to write an expert witness report. Ask what checks for quality, accuracy and consistency they might carry out.
A good way of checking is to follow the MoJ’s expected standards for expert witnesses in family law cases - upon which we were consulted -
Supplied by Carter Brown
Expert Witness Profiles - 10 of the best! Professor Patrick A Nee
Dr Sumeet Vohra GP
FRCS FRCP FCEM FFICM
Consultant in Accident & Emergency Medicine
Consultant in Occupational Health
Professor Nee has considerable experience in emergency and critical care medicine. He receives instructions in matters of personal injury and clinical negligence from claimant and defendant organisations. He has assisted the Court as an expert witness on numerous occasions and supports other expert witnesses in the production of reports.
Trained and qualified in London at Charing Cross and Westminster Medical School. GP in Sheffield and also Occupational Health Advisor to a number of Companies. Consulting Rooms in Birmingham, Chesterfield, Derby, London, Manchester, Sheffield and Warrington. Medico Legal reporting on Road Traffic Accidents, trips/slips and employers liability.
Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030
Mr Philip Emm
Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030
Mr Saeed H Zaki FRCS ( Edinburgh) FRCS (Tr & Orth)
Consultant in Physiotherapist A Chartered Physiotherapist with 40 years experience working in London, Scotland and the last 25 years in private practice in Manchester. In that time has treated many 1000's of RTA and industrial injuries. Our goals are to relieve pain and normalise range of movements and function. Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030
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Consultant Trauma & Orthopaedic Surgeon I have extensive Medico-legal experience covering a wide range of scenarios and injuries. In Whiplash injuries my ratio of claimant to defence is about 80:20. My special area of interest is fractures and soft tissue injuries involving both the axial and peripheral skeleton. I also deal with paediatric orthopaedic injuries and have experience as an expert witness for the courts. Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030
Expert Witness
Doug Hall
Robert Pendleton FRICS CEnv, RICS
Quantum Expert, Forensic Accountant
Consultant in Property
Doug has specialised in forensic accounting for over 25 years, acting as quantum expert for Claimants and Defendants/Respondents in both UK and cross-border commercial disputes. He has given evidence in the High Court, arbitrations and other tribunals and contributed to the successful resolution of disputes by negotiation and formal mediation.
Registered Valuer, has acted as an expert witness on a variety of property matters in Courts and Tribunals since the 1980’s. He specialises in providing property valuation reports including those suitable for use by the Courts and can give expert evidence related to market rents for rent review and new leases, market valuations for a wide variety of purposes and lease extension premia.
Contact: doug.hall@smith.williamson.co.uk or Telephone: +44 (0)20 7131 4048
Contact: rob@levene-surveyors.com or hkvaluations12@live.com or mobile 07722 485663
Dr Mark Powell
Matthew Halton
Pharmaceutical Analytical Chemistry
A.M.I.M.I
Dr Mark Powell is a Fellow of the Royal Society of Chemistry and a member of Council of the Society’s Analytical Division. He has over forty scientific publications and conference presentations to his name and has worked at a senior level in academia and industry for over twenty years. Mark is an expert in chromatography, spectroscopy, pharmaceutical dissolution testing and quality control. He is an experienced expert witness in pharmaceutical analysis and has worked on cases concerning patent infringement and validity, as well as representing clients during inter partes testing.
Forensic Engineering Manager at Laird Assessors I have vast experience in a wide variety of accident related subjects where an independent professional opinion is required. I assist The Court as a single /joint expert witness on subjects ranging from Vehicle damage assessments to consistency, Low velocity impacts, version of events and exaggerated claims.
Contact: info@mpscientific.co.uk or Telephone: 0151 353 0995
Contact: matthew.halton@laird-assessors.com or Telephone: 0151 342 9961
Nik Ellis
Andrew Ryan
FIMI Eng Tech CAE AIAEA
C.A.E I.M.I A.M.I.M.I
MD & Consultant Engineer at Laird Assessors
Senior Forensics Engineer at Laird Assessors
I have submitted many forensic motor reports over the years for use in litigation purposes, provide both questions and answers for part 35 questions, produce joint reports and give oral evidence in County, Crown and Magistrates Courts. I am regularly instructed as a Single Joint Expert. I can provide references from Legal 500 listed solicitors from both Claimant & Defendant sides.
I have submitted many forensic motor reports over the years for use in litigation purposes, provide both questions and answers for part 35 questions, produce joint reports and give oral evidence in County, Crown and Magistrates Courts. I am regularly instructed as a Single Joint Expert. I can provide references from Legal 500 listed solicitors from both Claimant & Defendant sides.
Contact: nik.ellis@laird-assessors.com or Telephone: 0151 342 9961
Contact: andrew.ryan@laird-assessors.com or Telephone: 0151 342 9961
Surrey Lawyer 15
Expert Witness
The cost of reform 2013 saw the implementation of major changes to the way personal injury claims are funded and sourced. It is still too early to realise the full impact of these reforms upon injured claimants, their lawyers and access to justice but the early signs show genuine cause for concern. The full scope of the reform is too wide to rehearse here but in a wide variety of cases we have moved away from a system based upon the general proposition that successful claimants should keep all their damages and, in all but the most modest of cases, have reasonable fees and disbursements paid by the losing defendant, in favour of a one-size-fits-all fixed cost regime for road traffic, employers’ and public liability claims worth up to £25k (albeit with some exceptions) whether those cases are compromised in the newly expanded Portal system or go on to be litigated in the traditional way. The concern is that claimants with complex or riskier cases, whose claims now fall to be dealt with under the new fixed costs regimes, are getting turned
16 Surrey Lawyer
away by solicitors because their cases are not financially viable to run. For those that are taken on, increased pressure upon firms to reduce costs in order to stay financially viable means that work tends to be pushed down to smaller teams of the most junior fee earners thereby reducing the quality of advice, case preparation and service. This is compounded by pressure upon firms to keep work in-house rather than incur the cost of instructing counsel which, except in limited circumstances, is not recoverable from the defendant. A false economy. Further, claimants entering “no win no fee” agreements from 1st April 2013 find that they, and not the blameworthy Defendant, must now meet success fees out of their damages. Claimants are hit and so are firms as such fees are capped
at a maximum of 25% of general damages and past loss. The success fee cap affects the financial viability of the higher value cases involving complex arguments. Such cases are often hard fought by defendants as a result of their potential value and can mean that the risk of taking on and running such a case, funding disbursements along the way, outweighs the potential financial reward if there is a successful conclusion two or three years later. Children with complex cases, particularly those consisting predominantly of large future losses, are also affected because the litigation risks weigh heavily for firms against the prospect of diminished or no return. n Access to justice for some, but not all. by Jamie Marriott
Expert Witness
the quality of analytical results? The results of chemical analysis, when admitted as evidence, often decide guilt or innocence in a criminal case, and may undermine or strengthen a claim to intellectual property in patent litigation. The personal or financial consequences of a decision based on questionable data are obviously severe. So what are the pitfalls to look for when evaluating the quality of analytical results? Let’s consider the factors affecting data quality, from the time that the sample is taken to the moment the results are reported. Once a sample is taken, it must be safeguarded against unintentional contamination, deliberate adulteration, or changes due to chemical instability. A chain of custody is established that tracks ownership of the sample. Any mistake in sample storage (for example, placing the sample in close proximity to potential contaminants), or the chain of custody procedure, may invalidate the test results. The type of container used to take the sample, and the sampling technique employed, may also affect data reliability. The next part of the process is sample preparation, which may include extraction, concentration or dilution of the chemical species being determined. The sample preparation procedure must be robust and well documented in order to achieve traceability between the final results and the composition of the original sample.
The method used to test the sample must measure only the species of interest, and be free from interference by other sample components. This property of the analytical method is known as specificity. Sometimes the species being measured is present at one millionth part (or less) relative to the total amount of sample. The lower the amount of target species present, the greater the potential for interference from other components. A method’s specificity results from the selectivity of the sample extraction procedure and the test method used (e.g. titration, spectroscopy or chromatography). To complicate matters further, the specificity of chromatographic methods (where sample components are separated before being measured) also depends on the type of detector used. Finally, once the sample has been tested, the results are calculated. The calculation must account correctly for dilution or concentration
steps, and should include an estimation of measurement uncertainty. An evaluation of measurement uncertainty takes into account the (usually small) systematic and random errors that occur during sampling, sample preparation and analysis. In cases where the question is “How much of the substance is present?” rather than “Is the substance present?”, the significance of a test result is difficult to evaluate without an estimation of this uncertainty. The role of the analytical chemist as an expert witness is to consider all these elements of data quality and help the court to decide how much reliance to place on the test results. n by Dr Mark Powell email: info@mpscientific.co.uk
Surrey Lawyer 17
Marketing
“Is a rebrand really necessary and is the pain ever really worthwhile?” Managing Partner Paul Harvey explains the firm’s strategic approach to their recent rebrand and some lessons learnt throughout the process
W
e hear on a regular basis about new standards for best practice within law firms, changes to regulation, maintaining the highest standards of client care, CRM, KPI’s, pricing structures, developments in IT and new channels of service delivery and of course, the new buzzword "social media". There seems no end to the changes that firms need to adopt to compete in an often challenging business environment. With a legacy approaching 300 years, Morrisons Solicitors are no strangers to change and adapting to the needs of clients and the community. We strive constantly to improve our operations and the service that we deliver to our clients. We also appreciate that our success is in no small part reliant on how we are perceived in the market and how we communicate to our current and future clients. We therefore recently had a very good look at our firm, or more importantly, our brand and how we were seen by clients and the community. Yes, we rebranded!
But why... Months of research, strategic planning, copywriting, graphic design, more copywriting, web building, proof reading and campaign building can seem like a never-ending, resource-draining toil for any business. A rebrand, especially when coupled with an all-new website, could be disruptive to day-do-day business if not managed carefully. So why do we put ourselves and our businesses through these hoops? Is a rebrand really necessary and is the pain ever really worthwhile? Believe me, I’ve asked myself this question several times over the past few months and learned some lessons along the way.
Our motivation... Our own rebrand started with just one question: ‘What is our vision of what we want Morrisons Solicitors to be?’ A simple enough question, but when asked of our Partners, then our staff and finally some of our key clients, it was one which opened a door to a future for the business that was so alluring that not pressing ahead with the rebrand seemed out of the question. It also became ever more apparent that our brand and being able to effectively communicate our point of difference to clients, staff and the community, supported each of our strategic business goals. We used this opportunity to clarify what our current market perceptions were and how to reinvent our marketing image to reflect what we represent and the business goals for which we continue to strive. Lesson learnt: Ensure that you articulate what it is that you want out of the rebrand. It is a large undertaking so having a clear goal is important from the start.
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Marketing
Our differentiation...
which really helped with ensuring that there was no bottle neck with progressing the project.
Our Partners, staff and clients all spoke passionately about our firm. They spoke of the two things that set us apart: our empathy and understanding with our clients and our commitment to them. Funnily enough it was the selection of clients that we spoke to who pointed out that we did not currently promote a strong message around this differentiation. We have a great story to tell but we were not communicating it. And so the work began to research exactly what we do, why we do it and how we can best demonstrate this. Our research led us to the conclusion that our story is not about our near 300 year history or the list of services that we offer – its about our commitment and our empathy with the clients, community and our staff. This is what sets us apart. Lesson learnt: Make sure you do your research, both internally and externally. We spent a lot of time doing staff surveys, one-on-one partner and client interviews, as well as research into local markets and national trends.
Logistics... We made a real effort to include the whole firm as much as possible not only in the research but also in the development of the new brand. We found that by including the staff in the development and utilising internal communications with updates and sneak previews, as well as a strategic presentation at the outset, meant we have had great internal buy-in across the board from the start which is important when rolling out any new initiative and the team made a very positive and helpful contribution.
Lesson learnt: It may help to form a smaller team for making final decisions, especially about the visual representations. Too many decision makers can delay and even derail progress.
Lift off!... We made sure that we put as much effort into the launch of our brand as the formation, both internally and externally. We held a launch afternoon simultaneously at each of our five offices via video-link up. We also had a very strong focus on communicating our new brand to clients and the wider community alike via a strategic fourweek online and offline campaign utilising local media, PPC, social media and email.
Lesson learnt: It is paramount that you include internal communications as a key part of your planning. Explain the strategic importance of the rebrand and don't underestimate the value of your team's enthusiasm and willingness to get excited about the firm and initiative.
Lesson learnt: Social media is a free and very effective means to communicate your firm's message and brand direct to your targets and wider community.
Execution...
Moving forward...
Once we understood our point of difference we were able to start putting the jigsaw together. What should our new tone of voice sound like? How do we demonstrate this visually? What does this look like as a piece of marketing and how do we take this to market? How do we inform clients and public of this realignment? We really did engage our whole firm in the consultation process. It was important for us to ensure that we had buy-in across the board with the new strategic direction we were taking our brand. The ultimate decisions were made by a smaller group of partners however,
So now, with the new website launched and the rebrand unveiled we can see that the journey was more about looking inwards than simply projecting outwards. A little disruption to the dayto-day business was inevitable, but has given us a far better insight into our firm, how others see us and how we can best portray our unique qualities. Most importantly it has confirmed internally that we have a strong story to tell and a great platform to tell it. n For further information: Telephone: 01737 854500 Website: www.morrlaw.com Morrisons Solicitors LLP Clarendon House, Clarendon Road, Redhill RH1 1FB
Surrey Lawyer 19
Health
A weight off your shoulders... and hips With chronic health conditions associated with obesity rising, the importance of living a healthy lifestyle has never been more relevant. Short term ‘crash’ diets have been shown to be ineffective in providing solutions to long term weight issues and more and more patients are seeking surgical treatment to improve the quality of their life. Fatty foods and sugary drinks are cheap and aggressively marketed to suit the convenience of the consumer, making it all too easy to fall into unhealthy dietary habits. This problem is further exacerbated by our ‘couch potato’ lifestyles. Unhealthy diets and lack of regular exercise is a direct cause of obesity which has been portrayed by the growing statistics in the UK. Around 60% of the UK population are overweight and 1 in 4 are obese. Most of us are well aware that being overweight is a precursor for chronic health problems, rather than just a cosmetic issue. Being overweight increases the risk of chronic health conditions such as; heart disease, diabetes, high blood pressure, osteoarthritis and various cancers. Experts have warned that the number of fatalities due to obesity may even start to exceed those caused by smoking. There are countless weight-loss methods and strategies out there and help is available from a variety of sources. However, those
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who are obese are likely to find dieting alone ineffective, and surgical options may prove the most effective long term solution. Bariatric surgery typically involves reducing the size of your stomach with a gastric band, sleeve or balloon in order to reduce the quantity of food you can consume. Surgery will not only produce significant and sustained weight loss but it can also help relieve and prevent chronic health conditions associated with obesity. Research has shown that bariatric surgery can reduce the risk of type 2 diabetes by 80%. Procedures are minimally invasive with a quick recovery time.
Am I a candidate for weight loss surgery? To be considered for weight-loss surgery, you must meet at least one of the following criteria: •
Have a body mass index (BMI) of 40 or higher (20 to 25 is considered as normal)
•
Have a BMI of 35 or above whilst having another serious health condition that could be improved if you lose weight (e.g. type 2 diabetes or high blood pressure)
Weight loss surgery is a long-term commitment and a lifelong change so it’s vital you choose carefully where to have surgery while seeking the opinion of an expert. At Spire St. Anthony’s, dedicated before and after teams are here to provide treatment tailored to your individual needs and support you throughout your weight loss journey. From making that first decision, to providing ongoing weight loss support and advice long after surgery, we take pride in delivering the highest of quality care to help you live a healthy life. Our teams are headed up by experienced surgeons including Consultant Bariatric Surgeon, Mr Marcus Reddy. He is the lead upper GI surgeon at St George’s Hospital NHS Trust, London and developed the South Thames Bariatric Service. He carries out some of the highest numbers of procedures of all weight loss surgeons in the UK every year with 0% mortality rate. Mr. Reddy operates across all types of Bariatric surgery including: • • • •
Laparoscopic Gastric Banding Sleeve Gastrectomy Roux en Y Gastric Bypass Revision Surgery
• Super-obesity
Mr. Reddy holds regular clinics at St. Anthony’s on alternate Wednesday evenings and every Thursday evening at our Outpatient Centre in Raynes Park. For more information and appointments please call:
Cheam: 020 8335 4678/9 Raynes Park: 020 8099 2222
Legacies
Leaving their beloved four-legged friend without an owner Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved four-legged friend without an owner. Thankfully, Dogs Trust offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, but it takes away an extra concern for friends and family during a distressing time. Over the years, Dogs Trust has taken in hundreds of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes. One of these dogs was Poppy-Pie, a nine-year-old crossbreed who found herself looking for a home when her owner passed away earlier this year. Before coming to Dogs Trust, Poppy-Pie was looked after by her late owner’s carer and her dog walker. Both very much wanted to see Poppy-Pie find a loving new home but, sadly were not able to offer her a forever home themselves. Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving home and after being taken in by Dogs Trust Snetterton, Poppy-Pie was soon settling in and making new friends. She loved being around the staff and was adored by everybody at the rehoming centre – she even spent time helping out on reception while waiting to find a new home. After three months at Dogs Trust, Poppy-Pie found a happy new home where she became part of a loving family.
Adrian Burder, Dogs Trust CEO says, “Thanks to Dogs Trust’s Canine Card Card scheme, dogs in need of a new home are given a lifeline meaning that Poppy-Pie and many dogs like her are able to get a second chance at happiness and bring joy to a new family. If you decide to become a Canine Care Cardholder, we will issue you with a wallet-sized card. It acts in a similar way to an organ donor card and notifies people of your wishes for your dogs, should anything happen to you. Dogs Trust also strongly recommends that you mention the care of your dog in your Will. That way, there can be no confusion about your wishes.” n
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Property
Stages of the commercial conveyancing process
by Sarah Potter Pitmans Solicitors
The commercial conveyancing process will come as second nature to many readers. This article is designed to serve as a reminder to those already working in commercial conveyancing and a brief overview to practitioners in other areas of law. Who is the client? It should be ascertained at the outset who the client is, bearing in mind that the ultimate beneficial owner may not be the contracting entity. The parties may change during the course of the transaction (for example a new company may be set up for the purpose of acquiring the property) and due diligence needs to be updated as necessary.
Review heads of terms Heads of terms should be carefully reviewed and instructions must be obtained when there is any ambiguity.
Deduction and investigation of title It is usual for the seller’s solicitor to deduce title to the buyer’s solicitor, who must build a picture of the property, including its physical nature and any adverse matters affecting it. This will typically involve the buyer’s solicitor doing the following: • Reviewing all title documents; • Conducting searches: standard searches include searches of Land Registry, the local authority, water and drainage providers, highways and environmental authorities. Other searches may be required depending on the location of the property, such as HS2, London Underground or Flood; • Requesting replies to Commercial Property Standard Enquiries – there are several different sets of enquiries depending on the nature of the property. Additional enquiries should be raised as appropriate; • Reviewing the buyer’s survey and valuations; and • In some cases a site visit will be appropriate. In larger transactions the seller’s solicitor may produce a certificate of title for the buyer and their lender. This is a set of factual statements about the property upon which the buyer relies
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and which is backed up by a series of representations and warranties.
of the seller to ensure that it has legal capacity to enter into the contract.
Finance
Prior to completion, the buyer’s solicitor should do the following:
Where the buyer is obtaining finance for the acquisition, the bank also needs to satisfy itself as to title to ensure that it will obtain adequate security over the property. Lender’s will often have their own solicitor to investigate title who will either review and negotiate a certificate of title prepared by the seller’s solicitors or who will prepare its own report on title. Both processes inevitably have an impact on timing so it should be ascertained at the outset of the transaction whether funding is required.
Transactional Documents The seller’s solicitor prepares the contract. This may be conditional on matters such as: • obtaining planning for the buyer’s proposed use of or works to the property; • the seller obtaining vacant possession of the property; or • (in the case of a leasehold property) obtaining landlord’s consent to the transfer. A transfer deed will also be required. If the seller is retaining some of the land there will usually be covenants in the deed to protect the seller’s use and enjoyment of the retained land. Care should be taken when drafting the transfer and specific instructions received from the client. Depending on the nature of the property, other documents may also be required such as: • warranties – in the case of new build properties, warranties should be granted directly to the buyer by all contractors. Any existing warranties should be assigned to the buyer (and lender); • deed of assignment of rent deposits/arrears (in the case of multi-let properties); • rent authority letters to tenants informing them of the change of landlord; and • letters of reliance addressed to the buyer in respect of reports which the seller has the benefit of. These form of these documents should be agreed and attached to the sale contract prior to exchange.
Exchange and completion At exchange the transaction becomes legally binding. A deposit is paid by the buyer (typically 10%). Prior to exchange the buyer’s solicitor should conduct a bankruptcy/company search
• raise pre-completion requisitions with the seller’s solicitor; • carry out a priority search at the Land Registry to ensure that the title to the property has not changed during the course of the transaction. The search result effectively “freezes” the title for 6 weeks in favour of the buyer (“the priority period”); • agree a completion statement with the seller’s solicitor – any income from tenants will need to be apportioned between the buyer and seller; • liaise with any lender to ensure that funds will be available at completion; and • agree undertakings with the seller’s solicitor to deal with completion matters such as obtaining appropriate discharge documents from any existing lender. The seller’s solicitor should liaise with any existing lender to obtain a redemption figure. The timing of completion is often critical, especially if the property is subject to an existing charge. The seller will need to ensure that funds are received from the buyer in time to transfer them to the lender in order to discharge the charge on the completion date. The completion time is stated in the contract (typically between 1-2pm). If funds are received by the seller after this time but still during banking hours, completion is deemed to take place on the next working day. The buyer will be liable to pay interest on the purchase price (less any deposit paid) at the rate specified in the contract.
Post completion The buyer’s solicitor must do the following: • pay any Stamp Duty Land Tax (SDLT) due and submit the SDLT return within 30 days of completion. There are penalties for late filing/payment; • submit the necessary Land Registry application with the relevant priority period; • if the property is leasehold, comply with registration requirements in the lease There may be additional post completion/notification requirements depending on the nature of the property. n
Property
Conveyancers duty to due diligence property searches Both Residential and Commercial Conveyancers are keenly aware of their duty of due diligence imposed upon them by either the Law Society, C.L.C. and also by lenders during a conveyancing transaction.
What information should your searches include?
In order to assist with this due diligence there are a variety of commercial and residential searches and reports, produced by experts in their field, which can furnish the Conveyancer with information that will enable them to make an informed decision.
Search of the Local Authority (Local Search) This can be ordered in two forms the first is a Council Local Search which is compiled by the council and the second is a Regulated Local Search compiled by a Regulated Search Agent who checks the council records. The search covers Land Charges, planning,
When to Order Searches
highways and building control and is presented in two parts:
These can be ordered in two forms the first is a CON29DW which is a form with questions created by the Law Society and answered by the respective water authority in which the property falls. The second is a Regulated Water Report which is compiled by a Regulated Search Provider and is collated by checking the records held by the relevant water authority. The main part of both reports is to determine whether or not the property is connected to Surface Drainage, supply of Clean Water and Sewerage drainage. A plan should be provided with both reports to show the route of surface sewerage, and clean water supply.
Land Charges Register
Chancel Search Report
CON29R Questions (these are a standard set of questions created by the Law Society)
A Chancel Report confirms whether or not the property has a Chancel repair liability to pay for certain repairs to the local parish church.
At the point of the transaction when the conveyancer has reviewed the title information they are then in a position to order searches and reports. The type of searches and reports required depends not only on the type but also the location of the property. For example if the property is situated in Cornwall the property may be affected by past mining activities, e.g. it may be at risk of being on unstable ground (sometimes called 'subsidence'). A mining report will confirm whether or not the property is at risk. The most important thing is for the conveyancer to have a good working relationship with their search provider to ensure they are kept up to date with new products that come onto the market so they are well equipped to order the correct searches.
Majority of Conveyancers order four main searches: Local Search, Environmental Report, Water and Drainage Report and a Chancel Report.
Environmental Reports The two main Environmental companies who are experts are Landmark Information Group and GroundSure Limited. They both provide reports that cover anything from Environmental Risk Reports to London Underground Reports. The reports ordered will depend on the location and type of property and your clients and lenders instructions. Each report will not only cover the property but an approx. radius of 250m.
Water and Drainage Reports
A Chancel Report relates to the grid reference points of the property not the actual boundaries. Many conveyancing practitioners are undertaking No Chancel Insurance which means rather than establishing a potential risk they just insuring against the likelihood for liability. This can be ordered via your Search Provider. n For more information please contact our office on 01276 451 203 or email us at threecounties@indexpi.co.uk
Surrey Lawyer 23
Property
Understanding challenges in conveyancing Lawyers and conveyancers are constantly presented with challenges. In order to deliver on its proposition to make lawyers’ lives easier, SearchFlow is committed to open communication between lawyers and the business to fully appreciate the challenges and to prepare for forthcoming issues, and thereby find appropriate solutions. SearchFlow’s quarterly Conveyancer Sentiment Survey, for example, was designed to investigate market performance, identifying the highs and lows, as well as gain insight into topical developments (such as MMR and lender panels). The most recent findings from quarter three suggest conveyancers believe the market is levelling out. Just 16% of conveyancers experienced growth of over 25% in the third quarter, compared with 41% in the previous period. Furthermore 43% of those surveyed saw growth of over 10% - more evidence that the property market is steadying; while 20% of conveyancers have said growth has stayed the same. This supports HMRC’s figures for property transactions in August, where a 1.7% decrease from July suggested a re-balancing of the UK property market. Market stabilisation is helping to drive coneyancers’ confidence and many aim to grow their teams. In fact, nearly a third (31%) said they were “very likely” to increase their headcount in the next quarter, up 10% from 21% in the previous period and from just 11% at the beginning of the year. “We welcome the signs of the market settling following two consecutive quarters of incredible growth,” said John Pickford, Managing Director at SearchFlow. “It’s this sustainable growth that is boosting confidence, enabling conveyancers to grow their teams, review resources and ensure they stay as commercially effective as possible and leverage the market.” Being able to understand and recognise market performance is essential for SearchFlow to comprehend lawyers’ needs. And it’s just as important to be aware of their concerns. Quarter three’s Conveyancer Sentiment Survey also explored the impact of lender panels on conveyancers’ business. 50% cited this as their major cause for concern for the second half of 2014. Access to panels, the requirement to provide duplicated information and ability to communicate to lenders are all seen as stifling growth. Lender panel impact is further evident when examining solicitors’ income; panel instructions accounted for just 9% of business revenue for solicitors (up from 6% in the last two quarters). Direct business continued to account for the lion’s share of revenue at 65% in the third quarter.
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It’s also clear that conveyancers are concerned with more than just business and instructions. At this year’s SearchFlow sponsored Property Forum Dinner (a platform for those in the property transaction market to pose questions and debate topics to a panel of industry experts) a number of additional issues were raised. Top of the agenda was the role the Land Registry will play as the sole provider of official search results and concerns about the impact that will have with the Local Land Charges (LLC) in England and Wales. According to attendees, these changes have created uncertainty with many experienced members of staff leaving the organisation. The event also featured questions relating to data input and inefficiencies in the conveyancing process. Panel experts recognised the need to improve service and processes and urged greater use of available technologies for a more efficient and digitised process. It is lines of communication like the Property Forum Dinner that are so important for SearchFlow. They act as a window into the market, creating insight which can be shared across the industry while providing an opportunity to find solutions, whether that’s
calling for more clarity on the effects of the Land Registry changes or offering technological solutions. “Service is an industry-wide challenge,” said John Pickford. “Transaction processes are poorly perceived by both buyers and sellers for a number of reasons. What’s clear is that we talk a lot about the issues, but now is the time to take action. All those involved in the property transaction market have a part to play.” “Consumers use technology more readily and expertly, and have higher expectations of how it is applied, so this could be part of the solution,” he added. “There is evidence to suggest that conveyancers are also showing an appetite to do business online and there is certainly room to make better use of technology in the property market. SearchFlow has a role to play and we know there is more we can all do to ensure conveyancers and clients feel the benefit.” Looking forward to 2015, it promises to be another challenging yet rewarding year for the industry. Changes to CON29, the end of the grant for contaminated land clean-up and ongoing concerns about Land Registry changes, these and other issues will continue to feature highly on SearchFlow’s radar. n
Property
The Law Society's conveyancing portal, Veyo - a joint venture with global technology company Mastek UK - is set to revolutionise the home buying process. Unveiled to the law and conveyancing community last month, and in the final stages of development, it is scheduled to launch officially in Spring 2015. In this article, Elliott Vigar - head of commercial investments at the Law Society and CEO of Veyo - tells us how plans are progressing, ahead of the launch next year, and what the conveyancing market can look to expect during the first phase of the launch. There has been a lot of talk about the Law Society's plans to create a new portal for conveyancing for many years now. Today, I am pleased to unveil ‘Veyo’ a portal which uniquely brings together all the processes, checks and documentation prepared and undertaken by solicitors and licensed conveyancers in the sale and purchase of residential properties. In its first phase, the system will allow professionals to better communicate with each other, clients and other parties, satisfy due diligence obligations more quickly and facilitate the conveyance of residential property through established protocols. In doing so, it will not only speed up the house-buying process for consumers, but enable greater efficiency for conveyancers.
Key benefits to conveyancers • Veyo saves time by streamlining businesses processes • Veyo is secure, providing a clear audit trail of communications between all parties in a transaction • Veyo offers transparency at every stage of the conveyancing process providing all parties with up to the minute information on a transaction • Veyo enables clearer communication with customers • Veyo is the smart way to service clients, providing a secure area to upload and documents • Veyo has been designed by conveyancers for conveyancers
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How Veyo will work Users are presented with a dashboard that will show all active cases and their respective status. Each case will have a dedicated screen showing a detailed overview of progress towards completion. A calendar will show scheduled tasks, key dates and reminders. Other pages offer complete visibility of the sales chain, by providing users with an overview of all their transactions, messages and activities to help keep all cases on track. The online ‘deal room’ for any particular case will allow the two firms acting for the buyer and seller to collaborate and progress documents efficiently, with an automatic audit of all changes, versions and approvals captured for each case. The ‘chain view’ will show the exchange / completion status of each property in the chain online. Veyo users can verify individuals working on the other side of the transactions who must have pre-qualified to be able to use the portal. It will also be possible to carry out anti-money laundering checks with Veyo. Land Registry applications will be available from the launch date, with the integration of searches and HMRC transactions within Veyo also planned for subsequent service releases after the initial launch.
About the development of Veyo and security The Law Society chose to invest in a joint venture company in order to build the longstanding relationship necessary to deliver an IT platform of such size and complexity, as well as to ensure that our stringent requirements for resilience and security were met.
Following in-depth consultations with all parties involved in residential property conveyancing, the end result is a portal that is intuitive to all parties, including all the key features needed to effectively speed up and streamline the conveyancing process, within a secure and trusted community. Veyo will allow conveyancers to communicate and exchange information seamlessly with each other, their clients and other key stakeholders. It will also provide a level playing field for smaller firms competing with larger, more technologically-enabled firms. The portal will put solicitors and conveyancers at the core of what we aim to become - the ubiquitous process for buying and selling residential property in England and Wales.
Who will Veyo be available to? Veyo will be open to all conveyancing professionals – both in firms with and without Conveyancing Quality Scheme (CQS) accreditation, as well as licensed conveyancers – who must all meet an equivalent standard for entry. It is proposed that the standard will at least equal the level of scrutiny required for CQS accreditation; we see the portal as the next stage of the CQS concept, taking it from a way of denoting a firm's quality, to a way of spreading that quality standard across the profession and the conveyancing process. The portal will only be a success if all conveyancing professionals have access to it, trust the community within it, and can enjoy the benefits that it will bring to them and their clients.
If you want to know more... Our partner, Mastek UK, brings with it the pedigree and talent of a global IT solutions company, and significant experience of handling highly sensitive client data. Security and data protection have been priorities for us in the technical design and will be subject to rigorous testing prior to launch.
• Register for interest on the Veyo website: veyo.co.uk, where you will receive regular updates about the new portal and have the opportunity to trial the system before it launches in Spring 2015. n
Property
We Three Kings of Negligence Are? by Hannah MacKinlay On my travels delivering property law CPD there are three areas of conveyancing I find are consistently misunderstood by clients even by some lawyers. Below I will explore some of the key misconceptions and point out the top tips to avoid claims. Adverse Possession & Boundaries
Joint Ownership
Clients (and even some lawyers!) think they can rely on the red lines appearing on Land Registry plans to tell them where the precise position of their legal boundaries are, though this has never been the case. The Ordnance Survey and LR published a joint position statement in summer 2014 which aimed to dispel this particular urban myth, but it persists. Seemingly bizarre is the fact that you may find that land is legally in your title even though it is shown as lying outside the red line and land shown within the red line is in fact legally not within your title. Linked to this is the instinctive assumption that disputes over the boundary can be solved by the LR or by ‘squatters rights’ claims. Worse still there are three adverse possession regimes and some solicitors make applications under the wrong regime - resulting in rejection of cases which would have been likely to succeed if made under the correct regime. Key points are:
There has been a slew of cases involving disputes between joint owners over their respective shares in jointly held property and consequent negligence claims against conveyancers too. The Law Society has published guidance to solicitors on their obligations. Some conveyancers feel that raising the possibility of the clients’ relationships breaking down is indelicate and so avoid the issue - other than to deal with it in the most general terms. Caselaw show that solicitors have to deal with the issue in detail with clients, and it may even mean that each joint owner should get separate advice. The key points from the cases and the guidance are:
1. The physical world and history are of vital importance and plans are usually only a starting point.
3. You need to explore other aspects such as third party funding, changes in the relationship, and children of previous or this relationship, declarations of trust and even co-habitation agreements.
1. You need to raise the subject in all joint purchases and explain the two ways of holding land. 2. You need to explain how joint tenancies can be severed, and that they can be severed unilaterally.
2. Adverse possession claims depend crucially on the dates when the claimant fenced off and started to possess the land to the exclusion of the paper owner. Simply mowing open land or parking on it is rarely enough to found an adverse possession claim.
Title Insurance
3. Claims where you can’t prove 12 years possession expiring before 13/10/2003 (and so use the old 1925 regime) must be brought under the 2002 regime (where the period is 10 years) and are usually going to fail if the new registered proprietor objects to the claim.
The use of title insurance on conveyancing transactions to deal with title problems has mushroomed over the last 20 years. The trouble is insurance doesn’t actually solve the underlying title problems at all. Worse still, if and when they arise the problem may be settled by the insurance company
TenIntelligence expands into the Middle East with Dubai Office Launch Strategically the focus of the new office will be on anti-counterfeiting services, fraud investigation support, as well as Middle East focused due diligence. The new office is managed by resident Director, Cate Wells based in Dubai. Cate has over ten years of experience in intellectual property investigations, intelligence gathering and due diligence research. In 2009 she moved from the UK to the UAE and has operated as a market intelligence specialist in Dubai
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4. You need to be able to prove that you have done this and what the clients’ instructions were.
and Abu Dhabi and is highly regarded as a dedicated professional in helping combat intellectual property crime and brand protection issues. Cate has provided evidence of the highest standards to many domestic and international clients including law firms, trademark agents, brand owners, market research companies and other stake holders from a variety of different industries. Commenting on the opening in Dubai, Neil Miller, CEO said: "Our strategy is to recognize and focus on the growing due diligence and brand protection requirements for clients operating or investing in this growing region."
on terms that the client doesn’t like. The client may get paid the consequent loss in value of their property from the insurer but they may not have the property or the rights that they thought they would get. In that case they may complain of mis-selling by the conveyancer. Key points you need to deal with include: 1. You need to tell the client whether you are making your policy recommendation on the basis of a full market analysis or just one insurer, and why. 2. You must give the client a Demands and Needs statement, from YOU as generally you are in fact the insurance broker, not the insurance company or the ‘insurance intermediary’ you arrange it through. 3. You need to explain the terms of the policy, the key exclusions and claims process to the client. Now I feel passionately that the key to happy clients and avoiding negligence claims is good and effective communication with clients - but often there are pressures on time and costs that can make this difficult to achieve. One way to ensure that the message gets across is to have pre-prepared plainEnglish guides to go through with clients at the appropriate time. I have some examples for download (with checklists and drafts) at www.propertylaw.guru. I can also work on bespoke ones for your firm. n
Hannah Mackinlay, LLB MA Solicitor Mackinlay Projects Limited
Cate Wells added: "We are excited to open our new office in Dubai and look forward to helping our clients and brand owners across the Middle East region. Our team here has local knowledge, extensive experience and access to various networks in the UAE which facilitates our evidence gathering and research."
www.tenintel.com Dubai Tel: +971 (0) 4333 4669 Email: dubai@tenintel.com
Wine of the Season with Conal Gregory, Master of Wine
Without doubt Rioja is Spain’s best known wine region. Protected from the Atlantic by the Ebro mountains, the three red grapes of Tempranillo together with a little Garnacha and Graciano yield rich wines with structure. One of the stars is Marques de Caceres, founded in 1970, whose Reserva 2009 is aged 20-22 months in French oak barrels. It shows supple elegance. Enjoy particularly with lamb. £16.49 or £14.01 when two bottles bought (Majestic Wine).
Across from the northern Rhone town of Tournon lies the hill of Hermitage. Imagine a delicious dry white with aromas of acacia flowers, honeysuckle and apricot with a taste of white stone fruit and figs. The Marsanne and Roussanne grapes yield wines of length that will keep for a decade, if you can resist that long! A tip is to opt for the less expensive Crozes-Hermitage. A cracking example is Les Marelles from Gilles Robin. £19.75 (Lea & Sandeman). n Sponsored by NFU Mutual Bespoke, high-value home insurance tailored to protect everything you value, including art, antiques, fine wine and more. Visit www.nfumutual.co.uk/bespoke for further information.
Surrey Lawyer 29
Management
When a rule loses meaning does it lose authority? Case Comment by Tony N Guise and Jennifer Ramsey
The recent High Court decision in 118 v IDS raises serious concerns about the future of Outcome 7.10 which affects the way law firms engage with data centres. At first glance perhaps of esoteric, arguably limited, interest but in fact of great significance given the widespread use of the Cloud by law firms to store client data and their IT operating systems. Here we address the implications of the recent IDS case for both Regulator and the regulated. The rising popularity of using data centres to hold a law firm’s IT operating systems, electronic data and confidential material relating to clients delivers costs advantages and business efficiencies but can bring serious regulatory risks. The issues are addressed in a helpful paper prepared by the SRA entitled “Silver linings: Cloud computing, law firms and risk” which can be found via this link: http://www.sra.org.uk/solicitors/freedomin-practice/ofr/risk/resources/cloudcomputing-law-firms-risk.page In that paper the SRA reminds practitioners that: “Firms dealing with cloud providers must be able to meet the requirements of Outcome 7.10 of the SRA Code of Conduct, which requires contractual terms authorising the SRA to access data and visit provider premises.” A sweeping statement of old style rule drafting but what exactly does that mean for: • What the SRA can or cannot do inside the data centre; • The nature and extent of the duties imposed upon Authorised Persons, Authorised/Licensed Bodies and of course the data centres themselves? These questions were recently the subject of a judgement of the High Court that has called into question the standing of Outcome 7.10 which reads: “…subject to Outcome 7.9, where you outsource legal activities or any operational functions that are critical to the delivery of any legal activities, you ensure such outsourcing: (b) is subject to contractual arrangements that enable the SRA or its agent to obtain information from, inspect the records (including electronic records) of, or enter the premises of, the third party, in relation to the outsourced activities or functions…” (our emphasis) In 118 Data Resource Limited v (1) IDS Data Services Limited (2) Susan Margaret MacFarlane (3) Kevin Sharpe [2014] EWHC 3629 (Ch) David Halpern, QC (sitting as a Judge of the Chancery Division) had to consider a contractual clause written in terms very similar to the material (as above underlined) passage of O7.10.
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The case concerned a contract between two rival companies which allowed the Defendant, (“IDS”), to make limited use the Claimant’s (“118”) database. In exchange, 118 was given contractual rights to have one of its duly authorised representatives enter the Defendant’s premises, to ensure that the database was being used in accordance with the terms of the contract. Amongst other things, the Learned Judge had to consider, on its true construction, what rights were conferred by the Clause 4.7 of the agreement. Clause 4.7 provides as follows: “(IDS) undertakes and agrees with [118] that it will ... permit any duly authorised representatives of (118) on reasonable prior notice to enter into any of its premises where any copies of (the Database) are used, for the purpose of ascertaining that the provisions of this Agreement are being complied with.” A number of issues arose. The difficulty, however, appeared to stem from the somewhat opaque nature of clause 4.7. Whilst it was clear that IDS had agreed to permit access so that 118 representatives could carry out their investigations, there was no reference to the type and scope of that access. The Judge noted that at the very least there should be some restriction to ensure that 118 only searches for material pertaining to the use of the database and not that which concerns IDS’s customers. Issues concerning the documents which may attract legal professional privilege complicate an already difficult interpretation task. The Judge noted there was no mechanism for dealing with such points. The steps required to ‘fill in the gaps’ went far beyond those which the Court in the earlier case of Sudbrook Trading Estate Ltd v Eggleton [1983] 2 AC 444 was willing to take and would inevitably involve re-writing the agreement. Moreover, the agreement was silent as to what steps 118 could take in the event that its representative(s) discovered a breach following the inspection. Once again, the Learned Judge held that in these circumstances, he would be required to amend the parties’ contract to an extent, as previous decisions illustrated, the Courts are loath to do. Whilst the Court was satisfied that clause
4.7 conferred the right to enter the Defendant’s premises, it was held that the Claimant had not shown, with sufficient clarity, that it was entitled to enter for the particular purposes being contemplated by 118 (e.g. inspecting the storage or use of the database). Further, it had failed to provide its powers upon entry. 118’s application for specific performance was accordingly dismissed. We understand from Counsel for 118 that there is no intention to appeal. Where does this leave Outcome 7.10? “contractual arrangements that enable the SRA or its agent to obtain information from, inspect the records (including electronic records) of, or enter the premises of, the third party, in relation to the outsourced activities or functions” The decision in 118 calls into question whether 7.10 has any effect. Whilst the actual effect of 7.10 is, of course, an argument for another day the drafting is so similar to that at issue in 118 that some might say it is doubtful the SRA would be entitled under this Outcome to enter the premises of a third party to examine a firm’s records. Under 118 the SRA are clearly allowed to enter the premises, but there is little mention of the nature of that access and/or restrictions imposed, nor the steps that the SRA may take thereafter. Despite the serious criticisms of 7.10 to be found in 118 solicitors should always ensure a provision in any contractual arrangements with third parties which enables the SRA to carry out its inspections in line with Outcome 7.10. The exercise of such right being a matter, of course, for the Regulator. We consider 7.10 to be a striking example of non-OFR regulation which begs more questions than it apparently answers. It appears to have been drafted from a perspective that conceived of the SRA, when necessary, taking physical control of documents; it is also arguably redundant in an age when access to such documents is gained not by physical entry but by user name, password and memorable word. n You can contact Tony Guise at GUISE Solicitors, 1 Alie Street, London E1 8DE tel: 020 7264 0350 or email: tonyguise@guisesolicitors.co.uk
Management
Employment
How professionals can get paid what they deserve
Dealing with the challenge of maternity leave
High Impact Fee Negotiation and Management for Professionals Growing international competition and the rise of tough procurement practices are putting pressure on professional services firms, leaving many professionals with uncertainty on exactly what to charge for their services. A new book, High Impact Fee Negotiation and Management for Professionals, has just been published to provide professionals with the skills and techniques to successfully set, negotiate and structure their fees to always get paid what they deserve. High Impact Fee Negotiation and Management for Professionals is the most comprehensive and practical guide to pricing and negotiation available for lawyers, accountants and consultants. By providing a systematic approach, the book helps professionals to turbo-charge their careers and master the non-technical skills that will improve both client relationships and profitability. The author, Ori Weiner, is an experienced strategic business development consultant, delivering high impact fee negotiation skills training and coaching to top executives. His career has seen him lead global businesses, work as an investment banker and set up GARA Consulting and Møller PSF Group Cambridge, one of Europe's leading professional services support firms, giving him a unique combination of perspectives as a client, consultant and an insider. In High Impact Fee Negotiation and Management for Professionals, Ori Weiner provides practical advice on how to apply a powerful, consistent approach to make sure the "Golden Triangle" of setting the price, getting the price and keeping the price works in the favour of the professional. Critically, it also explains the key steps leaders need to take in order to embed the right processes and appropriate culture, throughout the organisation. Ori Weiner is available to provide expert opinion or interviews, including possible by-lined below: •
Shades of Black and Red: Factors that determine the difference between loss or profit for professionals
•
Do you have what it takes to negotiate a good fee?
•
Swimming with shark and dolphins: Do you know who you are dealing with?
•
10 costly fee negotiation mistakes
•
Safety in numbers: How professionals can support their partners
•
Alternative fee structures - mirage or the future
High Impact Fee Negotiation and Management for Professionals by Ori Weiner is out now from Kogan Page, priced £39.99 n
Jane Crosby, from law firm Hart Brown outlines what employers, and expectant mothers, should know, when it comes to maternity leave regulations. For many companies, dealing with maternity leave issues can be a challenge, and one which employers often do not pay enough attention to. Women make up nearly 50 per cent of the workforce and a high proportion of these women will become mothers during their employment. With new legislation from the 1st October giving partners additional rights to unpaid leave, it is important that businesses know what is required of them to minimise the potential risk of costly discrimination claims.
Key legal rights Health and safety requirements require all businesses to take steps to protect a pregnant woman from particular risks that could harm her or her baby. All pregnant women have the right to reasonable time off for ante natal care and eligible employees can take up to 52 weeks maternity leave regardless of length of service. In terms of pay eligible employees can be paid up to 39 weeks statutory maternity pay which is 90 per cent of their average weekly earnings before tax and the remaining 33 weeks at £138.18 or 90 per cent of their average weekly earnings whichever is the lower. There is a facility for companies to recover this statutory pay from the HMRC subject to eligibility. New legislation has also been introduced from 1 October 2014 giving the right for husbands or partners to take off unpaid time for up to two ante natal appointments. There will be also a new system of parental rights introduced in 2015. Under this system parents will be allowed to share the statutory maternity leave and pay for up to 12 months that is only allowed to mothers at present. Mothers will need to take the initial two weeks after birth and after that the parents can choose to share the parental leave. This new system will come into force in April 2015 so businesses need to be aware of these rights and be prepared.
Preparation and planning One of the elements to avoid disputes in the workplace is the need to prepare and plan for situations which involve maternity leave. It is important to carry out a risk assessment to make sure the workplace is a safe place for pregnant women to
work against risks such as extremes of heat and cold. Good communication is a vital part of this process which starts as soon as the business becomes aware of a pregnancy. It is good practice to agree a date to meet with your employee to ensure an effective handover of work. This meeting can be also used to identify the key dates such as the baby’s due date and the return to work date. It may sound obvious but written records should be kept of all communications such as emails, meetings and telephone conversations minimising the risk of misinterpretation between the parties. It is important that clear policies are in place so that pitfalls can be avoided such as failure to deal with the time limits for flexible working requests.
Recruitment and communication If a woman has requested to return to work during her ordinary maternity leave then she has an entitlement to return to the job she was doing before her maternity leave. Recruiting temporary cover will involve additional cost and preparation but these employees/agency workers should be integrated into the workforce quickly to minimise the cost. Communication is also important with the employee who is on maternity leave to establish when and if, they want to return to work and if they have any flexible working requests such as part time hours which may necessitate the person who has provided temporary cover to remain in the business for longer than originally anticipated.
Return to work One method of ensuring a smooth return to work for the employee is to allow a phased return to work as there may have been significant changes for the employee and the business while they have been away. This phased return will help to build relationships again both with customers and staff. Communicating with the employee during their maternity leave can make them feel more valued and ensure a better transition back to work. Employers need to be aware of all the statutory rights applicable to pregnant employees and how to handle these processes effectively to prevent problems arising which can be costly for any business. n
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Management
Demise of ‘death tax’ The Chancellor’s latest pension change may be his most generous move yet.
I
n his speech at the Conservative Party conference last week, George Osborne revealed details of a change to the taxation of pensions death benefits; a move that looks set to save hundreds of thousands of families tax totalling £150 million each year.
Importantly, the new rules extend the tax saving
The latest measure will abolish a 55% ‘death tax’ on inherited pension benefits, enabling many savers to pass on their pensions to loved ones tax-free. The announcement was the second part of proposals in this year’s Budget designed to deliver “freedom for people’s pensions”, which are due to come into effect from April next year.
haven’t yet taken their pension, or who have
The move comes alongside plans to give members of defined contribution pension schemes unrestricted access to their retirement savings from age 55. Suddenly, pensions look a lot less inflexible and a great deal more appealing. Under existing rules, it is only possible to pass on your pension fund tax-free if it is ‘uncrystallised’ – in other words, untouched and still held in the fund – and only if death occurs before age 75. Lump sum death benefits from ‘crystallised’ defined contribution pension schemes, i.e. those from which benefits have already been taken, are subject to a 55% tax charge. In broad terms, under the new regime, when someone dies before age 75, the beneficiaries of their unspent pension fund won’t be taxed at all. This applies whether the beneficiaries take the pension fund as a lump sum or as income. When someone dies over the age of 75 – the more likely scenario based on longevity – beneficiaries will be able to take the residual pension fund as a lump sum subject to a tax rate of 45%, instead of the current 55% tax rate. Alternatively, they can continue to draw the income and instead pay their marginal rate of tax, as they would with their own pension.
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opportunity beyond spouses and other financial dependants to any beneficiary, including grandchildren. The changes will benefit those who already entered income drawdown. They do not apply to annuity payments or final salary schemes. The beneficiaries of people who die before 5 April 2015 (including the beneficiaries of those who died before the announcement) will be able to ask the administrator of the pension scheme to delay the payments until after 5 April next year in order to benefit from these changes. The prospect of pensioners passing on their savings to the next generation without penal tax charges could encourage them to be more prudent with their retirement pot, countering concerns that the new freedom to access funds would lead to extravagant spending. The details are yet to be firmed up, but the measure is due to come into effect from next April alongside the other pension reforms outlined in the Budget. What’s more clear is that the proposals open up a number of financial planning needs and opportunities, from reviewing Wills and npension beneficiaries, to reconsidering pension contributions and how the measures might help with inheritance tax planning. n To receive a complimentary guide covering Wealth Management, Retirement Planning or Inheritance Tax planning, produced by St. James’s Place Wealth Management, contact Fiona Davies of St. James’s Place Wealth Management on 020 7495 1771 or email Fiona.Davies@sjpp.co.uk
Management
Where are you going and what do you want to be? from Peter Scott Consulting These questions were recently asked by a journalist about a law firm and the strategic choices it may urgently need to make if it is to stem the loss of key partners. They highlight the imperative for law firms to ensure that they continuously understand and respond to the needs of – -
their clients who judge them in terms of their skills in core work types, their ability to anticipate and respond to market needs, and their resources available to deliver the advice sought; and
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their people who judge them in terms of whether ‘they are in the right firm’ for purposes of their future career advancement and earnings.
If a law firm feels it is at a crossroads (as many do) and is not sure how best to go forward, then it should start by taking a focused ‘root and branch’ look at itself. Having a ‘focused’ approach for this purpose means identifying those critical areas of the business where things will need to change if a firm is to build its competitiveness. To achieve this it will be necessary to begin by challenging certain aspects of the firm instead of accepting the status quo. Very often issues may have already been recognised but no steps will have been taken to deal with them. Allowing fundamental problems to fester by doing nothing is not going to be the way firms will progress in today’s more aggressive and competitive markets. Focusing on questions such as the following will help to clarify issues - What kind of law firm do we realistically want to be?
To do this will require continuous research, analysis, forward planning and decisionmaking and it is clear there is currently seriously good thinking going on in many firms, judged by the clever moves now being made by some firms in relation to future identities and direction.
- Which clients / types of clients should we realistically aim to act for?
The external and internal pressures on law firms have rarely been greater than now and are likely to only become more demanding in the future. As PWC indicated in its 2013 Report on the UK legal market -
- What levels of performance will those clients expect?
“Worryingly, with almost a third of law firms outside the top ten recording disappointing net profit margins, our view is that unless these firms can radically restructure their business, their short to medium – term survival must be in doubt”
- Do we have the ‘right’ people on board who have the appropriate skills and behaviours to help us to achieve our ambitions?
A strategic plan should aim to gain a competitive advantage for a firm which is likely to enable it to generate greater revenue and profit and retain more clients than its competitors. But how many firms are seriously planning ahead to ensure that they can successfully adapt to a changing world and gain a competitive advantage over their rivals? Competitive advantage matters because it involves those parts of a firm which place it ahead of its competitors such as the performance of its people, its costs structure and its service and delivery offerings, but to stay ahead means a firm has to do these things differently and keep innovating. The development of a strategy for the future development and direction of a law firm will require its owners to think hard about their existing business, where it should be going and, in particular, what they collectively and individually want to achieve for the business and for themselves. They should take a reality check because recognising the need to change and gaining consensus within the firm that change is necessary is the first vital step to take if changes are to be successfully managed.
- In which sectors should we realistically aim to operate? - Which legal services will those clients and sectors require in the future?
- What will we need to do differently and better if we are to become more competitive than our rivals?
If a strategy for future identity and direction can be formulated which realistically recognises the true nature of the business and its market positioning, and ambitiously but realistically sets out a vision of what the business can become, given available resources, then that plan is more likely to stand a chance of being realised. However the key people in the firm will first need to be convinced that the firm has a realistic and achievable plan for the future if they are to be persuaded to remain and to actively lend themselves to its implementation. If partners in a law firm are going to buy into a strategic plan, then their views should first be carefully canvassed and assessed, because managing change is about the 'art of the possible'. Difficult people problems are more often than not at the heart of a law firm’s problems but firms sometimes seem unable or unwilling to deal with these problems. How many 'strategic plans', which logically would seem to be the right thing to do, still sit on shelves gathering dust because those who have been trying to drive their implementation have failed to understand the limits of what is achievable?
Questions such as the following may need to be asked: - Are the aspirations and performance levels of our partners and staff consistent with delivering what our clients will require in the future? - Are all our partners clear as to their roles, what is required of them and prepared to embrace a culture which will require different and higher levels of performance? - How much is partner under-performance really costing us in terms of – • high turnover of good partners and staff; • a cascading loss of morale throughout the firm; • wasted management time and a debilitating effect on the smooth running and well being of the firm; an • an inability to recruit good lawyers and other staff; The management of performance in today’s legal market is now taking on an even higher urgency and priority as firms are forced to review their strategies to ensure their future competitiveness. A firm is however unlikely to be able to successfully manage a process of change unless it has appropriate leadership at the helm. The type of leadership required will be that which is prepared to challenge everything about a firm and which has – - an ability to develop and communicate a vision for the firm which partners can believe in and will follow; - an ability to inspire people to climb aboard for the journey; and - the determination and drive to achieve that vision for the firm. n To contact Peter Scott email to pscott@peterscottconsult.co.uk or call 07725 039 573 www.peterscottconsult.co.uk
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Legal News
Not a week seems to go by these days without more speculation in the legal press about how uncertain the future is for small firms, sole practitioners and those in legal aid practice. For organisations like SBA the Solicitors’ Charity, however, it’s clear that starker times arrived quite some time ago. SBA Beneficiary Secretary Dervilla Carroll explains, “We regularly take calls from solicitors affected by redundancy and shorter hours. In many cases, all their savings have been used up, the home is on the verge of repossession or already gone and debts are spiralling out of control. It’s not unusual to see people sofa-surfing, living in temporary bed-and-breakfast accommodation or moving back to live with an elderly parent. One former partner is currently living in his car while trying to sort out job interviews.” It’s obviously not pleasant to muse on what it’s like to move from comparative prosperity to £72.40 a week, the level of Jobseeker’s Allowance. However, some of the research shared by LawCare suggests that lawyers are uniquely well qualified in the art of denial. Solicitors who are buried in the detail of heavy workloads and managing their own clients’ expectations don’t necessarily recognise when they themselves need to ask for help. As professionals who excel at taking control in chaotic situations, solicitors are often overwhelmed when, despite their best efforts, they cannot influence a particular outcome. Professional and personal relationships start to crack and, as both SBA and LawCare know only too well, families can blow apart as a result. Many applicants advise that they have known about SBA for most of their professional lives. However, the charity is often
associated with more traditional types of support for older or disabled people. SBA does of course still help former colleagues but, as the profession’s own charity, it has also geared services in readiness for market contraction. One new pathway is to provide free careers support, underpinned by short-term financial help to boost people’s chances of getting back into work, either in the law or not. Subject to a confidential test of income and savings, solicitors who qualify for financial assistance can join a three-month programme which offers holistic career, job search and wellbeing support, all provided by a single professional consultancy. SBA also wants to help create financial breathing space for colleagues who need that extra bit of support at the right time – for example, covering the costs of removal expenses for a family looking to downsize their home. n
The next few years could well be grim for many in the profession but, with support organisations standing by to help, it is possible to see some light at the end of the tunnel. Don’t wait to hit crisis-point – act now. Visit www.sba.org.uk for further information, telephone 020 8675 6440 or email bensec@sba.org.uk
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