The Bill of Middlesex Winter 2021

BillOFMiddlesex

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THE

THE OFFICIAL JOURNAL OF THE MIDDLESEX LAW SOCIETY

|

WINTER 2021

“There is nothing permanent except change” – Heraclitus

Middlesex Law Society 1 | The Bill of Middlesex

■ Is this the new normal?

■ Legal Aid inequality ■ Undertakings

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2 | The Bill of Middlesex

PUBLISHER Benham Publishing Aintree Building, Aintree Way, Aintree Business Park, Liverpool L9 5AQ Tel: 0151 236 4141 Fax: 0151 236 0440 Email: admin@benhampublishing.com Web: www.benhampublishing.com

Contents 05 From our

ACCOUNTS DIRECTOR Joanne Casey

Council Member

SALES DIRECTOR Karen Hall

06 A new insurance

STUDIO MANAGER Lee Finney

headache, the end of silent cyber

MEDIA No. 1739 EDITORIAL COMMITTEE Miles Sriharan Maralyn Hutchinson Professor Malcolm Davies Zulfiqar Ali Meerza PUBLISHED Winter 2021 © The Middlesex Law Society Benham Publishing Ltd.

10

LEGAL NOTICE © Benham Publishing.

None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press. Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

undertakings?

15 Closure of the

Solicitors Indemnity Fund Limited (SIF) to new claims

to life: returning 17 17 Btoack normality after

DISCLAIMER The Middlesex Law Society welcomes all persons eligible for membership regardless of sex, race, religion, age or sexual orientation.

lockdown

19 CQS update 20 Virtual reality in a

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 members and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.

Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

ack to a new normal 08 08 Band Council report 10 Money laundering 13 What future for

new era

29

22 COVID-19 and the workplace – will there be return to normality?

26 A decade without

review: Inequality in the legal aid system

29 How important is

digital connectivity?

Our new website is now

www.middlesexlawsociety.org.uk The Bill of Middlesex | 3

OFFICERS

OFFICERS FOR 2020/21

President Elect MILES SRIHARAN Sriharans Solicitors 223 The Broadway, Southall UB1 1ND 020 8843 9974. DX 119583 Southall 3 Email: miles.sriharan@sriharanssolicitors.co.uk Honorary Secretary MAURICE GUYER Vickers & Co. 183 Uxbridge Road, Ealing W13 9AA 020 8579 2559. DX 5104 Ealing Email: mguyer@vickers-solicitors.co.uk Honorary Treasurer ANANDAKRISHNAN S. NAIR Sriharans Solicitors 223 The Broadway, Southall UB1 1ND 020 8843 9974. DX 119583 Southall 3 Email: anandakrishnans.81@gmail.com COUNCIL MEMBER FOR THE MIDDLESEX AREA Central & South Middlesex Michael Garson Kagan Moss 22 The Causeway, Teddington TW11 0HF 020 8977 6633. DX 35250 Teddington Email: michael.garson@kaganmoss.co.uk

COMMITTEE MEMBERS

PAST PRESIDENTS

Past President ARIYA SRIHARAN Sriharans Solicitors 223 The Broadway, Southall UB1 1ND 020 8843 9974. DX 119583 Southall 3 Email: info@sriharanssolicitors.co.uk

R Garrod, J A S Nicholls, R C Politeyan, J Aylett, K Goodacre, H J B Cockshutt, W Gillham, L Lane Heardman, D Grove, L A Darke, C Beety, L E Vickers, H Hodge, E G B Taylor, A A M Wheatley, A H Kurtz, M J S Doran, H B Matthissen, G Parkinson, HHJ R D Connor, A Bates, J J Copeman-Hill, D B Kennett-Brown, S B Hammett, F A Shakespear, HHJ P E Copley, A M Harvey, H R Hodge, G R Stephenson, B S Regler, W J C Berry, AS Atchison, L M Oliver, S W Booth, D D P Debidin, R E J Hansom, E H Lock, A Taylor, N Desor, M Hutchinson, M Guyer, R S Drepaul, A Sriharan, M Fernandes, A Darlington, S Chhokar, M Crowley, M Davies, S Hobbs, R Sriharan, S Scott Hunt, D Webb, G Kharaud, A Sriharan, A Tevie

Professor Malcolm Davies Retired Professor University of West London Law School c/o Oxford and Cambridge Club 71 Pall Mall, SW1 5HD 020 7930 5151 Email: profmjd1@gmail.com Aneeqa Ali Lecturer in Law/ Legal Practice University of West London St Mary’s Road, Ealing W5 5RF 020 8231 2403 Email: aneeqa.ali@uwl.ac.uk Maralyn Hutchinson Kagan Moss 22 The Causeway, Teddington, Middlesex TW11 0HF 020 8977 6633. DX 35250 Teddington Email: maralyn.hutchinson@kaganmoss.co.uk Renuka Sriharan Sriharans 223 The Broadway, Southall UB1 1ND 020 8843 9974. DX 119583 Southall 3 Email: info@sriharanssolicitors.co.uk

PARLIAMENTARY LIAISON Michael Garson

Liz Pugh Head of the Legal Practice Course University of West London St Mary's Road, Ealing W5 5RF 020 8231 2018 Email: liz.pugh@uwl.ac.uk Zulfiqar Ali Meerza Serious Fraud Office (SFO) 2-4 Cockspur Street, London SW17 5BS 020 7084 4890 Email: zulfiqar.meerza@sfo.gov.uk Zahra Asghar Asghar & Co 112-114 The Broadway, Southall UB1 1QT 020 8843 0010. DX 119576 Email: zasghar@asgharandco.com Caroline Golden Goldens Solicitors 343 Rayners Lane, Pinner HA5 5EN 020 8429 8282. DX 48006 Rayners Lane Email: c.golden@goldenslaw.com

www.middlesexlawsociety.org.uk 4 | The Bill of Middlesex

INTRODUCTION

Looking to the Future WINTER 2021 Michael Garson

H

aving served as Council Member for Central and South Middlesex since 2005, I will be leaving the Council at the next AGM to be held in October 2022 by which time a new council member will have been elected to represent North West London. It is crucial to the ability of the Law Society to function well and lead the profession whilst adapting to meet the ever-changing needs of members that experienced members stand for election where they believe they have the interest and skills or can otherwise contribute to the work of the Council or its Committees.

During my period of tenure, the advice and support from our members has been a source of knowledge and encouragement enabling views to be strongly represented and issues to be confidently raised to meet the needs of practising members.

Reflecting upon the period since 2007 when the Legal Services Act was passed, I believe it has brought changes that have to some extent been liberating to members wanting ever more deregulation but, in other ways perhaps damaging to the standing and values of our profession through many unintended or ignored consequences.

The early years of the Solicitors Regulation Authority were marked by difficult discussions concerning areas of responsibility and reluctance on the part of the regulator to work within guidelines respecting the respective roles of the regulator and interests of the representative Society as laid down in the Act. More recently, the Legal Services Board [LSB] has become markedly more political and activist. It has encouraged the SRA to further unpick elements of the regulatory structure without full regard for unintended or perhaps intended consequences as so amply illustrated by the opening of the Land Register since 2003 with ever increasing fraud and theft of title ownership. This is a threat to the standing of the profession and the trust placed in it by the public.

Models of practice have been deregulated and there is pressure to unbundle services and automate them as the SRA is ‘supporting the adoption of technology and innovation in the legal sector including by building new partnerships in the lawtech arena’. Comprehensive public protection through insurance is repeatedly questioned.

The demographics in the profession have changed with male solicitors now comprising a minority and the female majority in the profession are aged under 45. Around 25% of the profession now works in organisations which are not solicitor firms. The traditional law firm is no longer a popular model, and the modern profession wants more defined and narrower responsibility, high wages and work/life balance.

Meanwhile the new entry requirements and SQE heralded to reduce cost and maintain standards are under way and it is uncertain who will be the winners from this change.

As this process continues, difficulties are arising over ethical values and the boundaries for professional privilege and other conflicts of interest. The recent Postmasters case highlights some of the difficulties where professional obligations come under pressure from commercial interests. The judgment in the shocking case is now the subject of a judge led enquiry (Bates and Post Office [2019] EWHC 3408). Even the efficacy of a solicitors’ undertaking has recently come

into focus in the Harcus case discussed elsewhere and changes to procedure will no doubt follow.

A recent initiative by the LSB introduced new Internal Governance Rules. These required the structural separation of the SRA from the Law Society and control of the process for approval of annual funding from the profession that enables activities of the SRA and the Society.

This year all SRA operations have been transferred from the Law Society to a separate company which is being registered as a charity organisation. This may give rise to further difficulties in the future.

The budget constraints are of continuing concern as the budget for 2022 has been capped at the same amount for the third year. The PCF (Practice Fee Application) is prepared separately by the SRA and the Society, and the LSB is now applying new and strict rules over the way in which applications must be prepared and how they will be considered for approval. It is now almost impossible for the Law Society to increase its share of the practice fee income unless this has been forecast and notified 3 years in advance. These constraints may have to be addressed in coming years.

The budgetary constraints on the Law Society are very real. The Society has worked with an allocation of about £28m which is under severe strain from pandemic disruption, wage inflation and the high cost of maintaining online services. The costs of the programme of capital investment in technology and updating the premises at 113 Chancery Lane have not been recovered and further investment is needed. The Society will be publishing a Reserves Policy and it seems likely that funds will be needed to ensure that the organisation remains viable and has the resources it needs to support its offering to members.

With the benefit of the new technology, offers for training and new accreditations are being developed and it is to be hoped that this activity which is very much of the essence of a good membership organisation will be allowed to survive.

Meanwhile the LSB encouraged by the Competition and Markets Authority openly states that it has ambitions to change the sector. It oversees 9 approved regulators and yet its sector wide strategy for reshaping legal services ranges far beyond and well into the world of unregulated services and their providers. One is led to question whether this is a legitimate role under the Legal Services Act or rather whether this should be a matter for legislation.

The clear problem that no one is able to adequately tackle is public legal education. Law is not taught at school and most have no experience of business or consumer issues until much later and then learn from experience or avoid the law as too remote and impenetrable.

Modern legislation is too complex for society to accept that situation.

This provides the backdrop for a diet of issues that will continue to vex the practitioner but also opportunities that will prompt the next generation of solicitors to target different areas of practice than in the past. I wish them and my successor well. ■

Michael Garson

Council Member The Law Society The Bill of Middlesex | 5

ARTICLE

A new insurance headache, the end of silent cyber T

he recent round of Professional indemnity policy renewals has again seen increases of average premium between 15 -20% and this follows hard on the heels of similar increases in previous rounds as the current hard market continues. There is little appetite from insurers to enter the market and the figure for the average increase is of little comfort to those with a poor claims record who may have suffered much bigger increases. The premiums in the layers of cover above the primary layer of £2/3m have been even more expensive.

There is no sign of respite, and another potential source of increased cost is coming into sight. The Prudential Regulatory Authority (PRA) and Lloyd’s of London (Lloyd’s) have required insurers to put in place action plans to reduce unintended or unclear cyber exposures. This is to provide greater assurance that the risk of cyber losses are being properly managed and priced in premiums as the risk of attacks on individuals and businesses has increased. As a result, and following consultation and long and technical debate the SRA has announced a new clause that will be added to the minimum terms and conditions of law firms’ professional indemnity insurance (PII) policies.

The SRA application to the LSB states: ‘We previously consulted on whether these consumer protections remain appropriate, most recently in 2018. At that time, we proposed a package of changes, including lower indemnity limits. Following the consultation, we decided not to proceed with these changes, because we were keen to avoid unintended consequences in a

6 | The Bill of Middlesex

hardening market and where we could not be confident that the intended benefits would be realised. In that context, we said we would monitor the efficacy and impacts of our insurance arrangements.

As part of this monitoring, we, as with other legal regulators, were made aware that the MTCs could be made clearer in respect of situations where law firms are subject to a cyber-attack’.

New wording has been put forward designed to end ‘silent cyber’ and make clear what cover will be provided for cyber losses within the SRA standard minimum terms. Whether it will do so is not free from doubt.

The objectives are to clarify the position and to: ■ maintain the current position on level of protection for consumers intended by our MTCs in the event a cyber-attack resulting in loss ■ provide clarity for insurers and law firms as to the necessary scope of cover for cyber risks that should be included in a PII policy ■ put law firms in a more informed position when reviewing the potential benefit of purchasing a separate cyber policy for other risks.

The wording has been submitted to the Legal Services Board (LSB) and awaits final approval with the stated intention that it should be in place for any insurance renewals from early 2022 onwards.

ARTICLE

The clause explicitly defines the cover for cybercrime by specifying what losses fall within scope for a potential claim.

The cover is for client and third-party protection and that means losses to the law firm (first-party losses) are not covered, apart from certain costs of investigating and defending a claim.

Firms are left to extend the cover from their MTC policy or buy a separate cyber policy for other risks such as breach of data protection regulation.

c. investigating, reducing, avoiding, or compromising any actual or potential claim; or d. acting for any insured in connection with any investigation, inquiry or disciplinary proceeding (save in respect of any disciplinary proceeding under the authority of the SRA or the Tribunal), and does not include any internal or overhead expenses of the insured firm or the insurer or the cost of any insured's time.

Clearly in the event of a claim insurers will consider the extent to which they can exclude claims which may give rise to more disputes given these factors:

Additional Defined Terms to add to the glossary:

■ the express intention that cover for first party losses is excluded ■ where separate policies are engaged there may be doubt where the boundary lies between different types of loss or damage.

The hope was initially expressed by the SRA that the revision of wording would make no difference in practice and that premiums would be unaffected but that is no longer part of its case and it would be brave to rely upon that hope. At best solicitors might consider taking complementary cover to avoid the risk of costly gaps arising in the unfortunate event of a claim.

The proposed wording is set out below and if unforeseen difficulties are envisaged these can be made known to the LSB, SRA or the Law Society.

The insurance may exclude, by way of an exclusion or endorsement, the liability of the insurer to indemnify any inured in respect of, or in any way in connection with: (a) a cyber act (b) a partial or total failure of any computer system (c) the receipt or transmission of malware, malicious code or similar by the insured or any other party acting on behalf of the insured (d) the failure or interruption of services relating to core infrastructure (e) a breach of Data Protection Law provided that any such exclusion or endorsement does not exclude or limit any liability of the insurer to indemnify any insured against: (i) civil liability referred to in clause 1.1 (including the obligation to remedy a breach of the SRA Accounts Rules as described in the definition of claim) (ii) defence costs referred to in clause 1.2 that would have been covered under the insurance even absent an event at 6(a) to 6(e) detailed above (iii) any award by a regulatory authority referred to in clause 1.4.

1. Cyber Act means an unauthorised, malicious or criminal act or series of related unauthorised, malicious or criminal acts, regardless of time and place, or the threat or hoax thereof, involving access to, processing of, use of or operation of any Computer System.

2. Computer System means any computer, hardware, software, communications system, electronic device (including, but not limited to, smart phone, laptop, tablet, wearable device), server, cloud or microcontroller including any similar system or any configuration of the aforementioned and including any associated input, output, data storage device, networking equipment or back up facility.

3 Core infrastructure means any service provided to the insured or any other party acting on behalf of the insured by an internet services provider, telecommunications provider, or cloud provider.

4. Data Protection Law means any applicable data protection and privacy legislation or regulations in any country, province, state, territory or jurisdiction which govern the use, confidentiality, integrity, security and protection of personal data or any guidance or codes of practice relating to personal data issued by any data protection regulator or authority from time to time (all as amended, updated or reenacted from time to time).

For more information see https://legalservicesboard.org. uk/our-work/statutory-decision-making/alterations-toregulatory-arrangements/current-applications. ■

Michael Garson

Member of the Law Society Professional Indemnity Committee

In addition, any such exclusion or endorsement should not exclude or limit any liability of the insurer to indemnify any insured against matters referred to at (i) (ii) and (iii) above in circumstances where automated technology has been utilised.

Amendment to current Defined Terms Defence costs means legal costs and disbursements and investigative and related expenses reasonably and necessarily incurred with the consent of the insurer in: a. defending any proceedings relating to a claim; or b. conducting any proceedings for indemnity, contribution or recovery relating to a claim; or The Bill of Middlesex | 7

ARTICLE

Back to a new normal and Council report E

veryone will have their own perspective on work life balance as the country emerges from the Covid-19 pandemic and successive lockdowns. There are expert studies suggesting that there has been an acceleration to more remote working in industries where there will be no going back, and that some occupations will change forever.

The position is acknowledged to be more complicated where work demands closer engagement with suppliers, customers and clients and many types of legal work do fall within that category. There is also the unanswered question as to whether remote working is more efficient or effective than organisational or social working in groups. No doubt contracts of employment are being recalibrated and this is set to continue over the coming year or two as the true impact of what has occurred emerges.

The return to work in the profession is by no means universal and many remain reluctant to meet collectively or even socially.

For example, our own Middlesex Law Society Committee has not been active and whilst occasional online events can be useful remote meetings are generally not found to be as satisfactory as live face-to-face events.

The national Law Society has itself adapted to providing more online courses and has held a number of Council and Committee and other online events. Last year's Annual General Meeting was attended by many times more than the customary number of around 100. This year's General Meeting was hybrid and extremely interesting as members in the room were able to interact and those online were also in a position to contribute.

There was extremely lively debate around a private member resolution that objected to the SRA decision concerning the closure of the Solicitors Indemnity Fund. This was carried and the meeting also adopted a Council statement that it would accept that the decision relating to the continuation of the Fund was a regulatory matter to be determined by the SRA. Further the Society committed to working with the SRA to facilitate the extension of SIF and confirmed its belief that it is in the interests of the profession and the wider public that affordable, professional indemnity insurance continues at the end of the mandatory six-year run-off period.

This year's AGM also marked a turning point for the future of the Law Society Council. More than 50 member seats were up for election and 20 council members having served for more than 12 years were disqualified from returning. The 61 geographic seats have been reorganised to reduce their total number by 15 and replaced by the creation of 15 new seats to represent specified work and community sectors.

Unfortunately, the databases available to the Law Society have not proved complete and it was not possible to finalise some of the elections and those have been deferred until next year.

8 | The Bill of Middlesex

ARTICLE

For the constituency of Central and South Middlesex the geographic boundaries have been altered and slightly extended to increase coverage for the new seat for North West London.

The postcodes covered are: HA0-9

NW2

NW4

NW6-7

NW9-11

TW1-8

TW11-18

UB1-11

UB18

W3-5

W7

W12-13

N2-3

N12

N20

EN4-5

A new Council Member will be elected to represent this constituency in next year's elections. The constitution of the Middlesex Law Society is wide enough to cover the extended geographic area and membership remains open to any who wish to belong.

COUNCIL REPORT Having served as Council Member for Central and South Middlesex since 2005 I will be leaving the Council at the next annual meeting to be held in October 2022. A new council member will by then have been elected to represent North West London. It is crucial to the ability of the Law Society to function well and lead the profession whilst adapting to meet the everchanging needs of members that experienced members stand for election where they believe they have interest and skills or in other ways contribute in some way to the work of the Council or its Committees.

During my period of tenure the advice and support from members has been a source of knowledge and encouragement enabling views to be strongly represented and issues to be confidently raised to meet the needs of practising members of the profession.

I reflect upon the period since 2007, when the Legal Services Act 2007 was passed and believe it has brought change that has been to some extent liberating to those members wanting ever more deregulation but, in many ways, traumatic and perhaps damaging to the standing and values of our profession through unintended consequences. The early years of the Solicitors Regulation Authority were marked by difficult discussions concerning areas of responsibility and reluctance on the part of the regulator to work within guidelines that took account of the respective roles of the regulator and representative body laid down in the Act. In more recent times the Legal Services Board has become more political and activist. It has encouraged the SRA to further unpick elements of the regulatory structure without full regard for unintended or perhaps intended consequences. This is a threat to the standing of the profession and the trust placed in it by the public.

The models of practice have been deregulated, there is pressure to unbundle services and automate them and the full public protection through insurance is repeatedly questioned. A majority of solicitors are now female and under 45 and around one quarter of the profession now works in organisations which are not solicitor firms. The traditional law firm is not a popular model, and the modern profession demands narrower responsibility, high wages and work/life balance.

Indeed, the recent Postmasters case highlights some of the difficulties where professional obligations come under pressure from commercial interests. Even the efficacy of a solicitors undertaking has recently come into focus.

A recent initiative by the Legal Services Board has been to introduce new Internal Governance Rules. These required the structural separation of the SRA along with control of the process for approval of annual funding from the profession that enables activities of the SRA and the Society.

Accordingly, all SRA operations have this year been transferred from the Law Society to a separate company which is in the process of being registered as a charity organisation. This will doubtless give rise to further tensions and difficulties in the future.

The budget constraints are of continuing concern as the budget for the coming year has been capped at the same amount for the third year. The PCF (Practice Fee Application) is prepared separately by the SRA and the Society and the LSB is now applying new and strict rules over the way in which applications must be prepared and the way in which they will be considered for approval. Indeed, it is now made almost impossible for the Law Society to increase its share of the practice fee income unless this has been forecast and notified three years in advance. These constraints may well need to be addressed further in coming years.

Meanwhile the Legal Services Board openly states that it has ambitions to change the sector. The LSB oversees 15 approved regulators and yet its sector wide strategy for reshaping legal services ranges far beyond and well into the world of unregulated services and their providers. One is led to question whether or not this is a legitimate role under the Legal Services Act or rather whether this should be a matter for parliament to legislate.

The budgetary constraints on the Law Society are now very real. The Society has worked with an allocation of about £28m which is under severe strain from pandemic disruption, wage inflation and the high cost of maintaining online services. The costs of the programme of capital investment in technology and updating the premises at 113 Chancery Lane have not been recovered and further investment is needed. The Society will be publishing a Reserves Policy and it seems likely that funds will be needed to ensure that the organisation remains viable and has the resources it needs to support its offering to members.

With the benefit of the new technology offers for training and new accreditations are being developed and it is to be hoped that this activity which is very much of the essence of a good membership organisation will be allowed to survive. ■

Michael Garson

Law Society Council and Board Member

As this process continues there are difficulties arising over ethical values and the boundaries for professional privilege and other conflicts of interest.

The Bill of Middlesex | 9

ARTICLE

Money laundering I

t was Phaedrus who commented in the first century that ‘things are not always what they seem.’ This is the essential paradox that underlies current Money Laundering regulation.

Detailed regulation demands that solicitors take steps in their risk assessments to satisfy themselves that they may proceed or cease to handle matters, and whether they must report a case to the National Crime Agency (NCA). The uncomfortable reality that lies behind even the most scrupulous of risk assessments is that the truth may remain hidden from view to the solicitor.

In January this year the Legal Sector Affinity Group (LSAG) published its Anti-Money Laundering Guidance for the Legal Sector 2021 written because of the changes made to The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 by The Money Laundering and Terrorist Financing (Amendment) Regulations 2019 that came into force on 10 January 2020 (MLRs).

There are organisational requirements in relation to governance and policies for firm wide risk assessment, matter assessments, for record keeping, monitoring, and training that are formidable.

Firms must establish and maintain written policies, controls, and procedures (PCPs) for identifying, managing, and mitigating the risks identified in the mandatory Practice Wide risk assessment completed as required by R18 of MLRs. A core principle of AML compliance is taking a risk-based approach and adjusting the level and type of compliance work to the risks present. That requires firms to have information on the risks inherent to their practice and in any particular 10 | The Bill of Middlesex

client or matter. If the risks present across a business or in any particular client or matter are not assessed, it will be clear that the appropriate controls and procedures to mitigate those risks are not being deployed. The PCPs must be proportionate to the size and nature of the business and must be approved by senior management and reviewed regularly with a record kept of all changes made to these records over time.

The guidance goes on to say that ‘Just because a practice is smaller and serves a smaller quantity of clients at any given time, does not necessarily mean that it is lower risk. Smaller practices may be targeted more than large law practices by money launderers, as they may be perceived as lacking resources to effectively guard against them. Equally, smaller practices may practice higher risk types of work, develop a niche in services or have cultural, social or language connections or other features which may be attractive to money launderers.’

It also goes on to say ‘that risk is a judgement relying on considering multiple factors holistically. Generally speaking, a single factor may not automatically make a matter or client high risk in and of itself, exceptions include where a client or counterparty is based in a high risk third country or is a Politically Exposed Person (PEP). It should be all the risk factors taken together that informs whether a matter or client is deemed to be high risk.’

These complexities leave many solicitors worried at the level of compliance required by the Solicitors Regulation Authority (SRA) but unable to be certain whether or not the assessments

ARTICLE

carried out within a firm are sufficient to identify what may lie hidden beneath the routine transactions carried on by known or typical clients of the firm.

This might be regarded as a wasted opportunity to review holistically whether the system and apparatus that has been developed over many years is fit for purpose.

Taking typical routine residential conveyancing matters it is not hard to classify certain work as either out of scope or high risk where it involves overseas clients, overseas funding, complex land assembly or development work where the firm is being introduced by a party with an interest in the transaction or introduced to act for buyers where the introducer has an interest in the transaction as developer investor or seller. There are cases reported where firms might have avoided difficulties had their business model been restricted to exclude certain types of instruction or client rather than subject them to costly scrutiny.

There are many situations where firms do indeed take that action and this is of itself not helpful to the regulator’s objective of meeting ‘unmet legal need’.

Also in the summer the Wolfsberg Group –an association of thirteen global banks with aims to develop frameworks and guidance for the management of financial crime risks – issued a report – Demonstrating Effectiveness. This was the latest in a series of guidance and other materials to provide the industry perspective on effective financial crime risk management.

When it comes to client due diligence many tests involve risk assessment which may be largely subjective and thus subject to opinion or bias. Every case must be subjected to specific assessment, the higher the perceived possible risk then the greater the degree of investigation that is necessary.

Evidence at one time used to be gathered face-to-face and simply scrutinised for obvious omissions signalling possible fraud or forgery. Nowadays with the use of online searches a wide variety of information is available that enables information to be triangulated for any incongruity to be identified.

The more facts that are gathered the safer any assessment may appear to be though such is the rich variety of real-life situations that clients experience in relation to employment, inheritance, sickness, insurance claims, or even lottery wins that much time can be expended going down cul de sacs. There are no hard and fast rules and yet the bar for suspicion is not high which means that objectivity effectively rules in risk assessment and even where a matter is assessed as low risk that does not provide immunity from investigation. In larger firms this complexity has spawned an industry of compliance officers.

The upshot publicly is that solicitors are criticised for raising too many or too few Suspicious Activity Reports but are in the dark as to whether their reports are looked at, are useful or form the basis for investigation and action. Inevitably motivation to carry out the necessary compliance is driven by fear and tends towards a tick box approach and defensive measures that are likely to satisfy scrutiny by the regulator rather than be effective in crime prevention or enforcement.

In July the H M Treasury (HMT) raised a Call for Evidence as to the improvements that might be made to the current regulations, and these are teased out through over 60 detailed questions.

The Call for Evidence was published in line with the UK's Economic Crime Plan 2019-22, which committed HMT to undertake a review of the MLRs and it looked at three themes: ■ the overall effectiveness of the regimes and their extent (i.e. the industry sectors in scope of the regime); ■ the application of elements of the MLRs to ensure they are operating as intended; and ■ the structure of the supervisory regime, and the work of the Office for Professional Body Anti-Money Laundering Supervision ("OPBAS"), to improve the effectiveness and consistency of Professional Body Supervisor ("PBS") supervision.

It suggested that: ‘most financial Institutions (FI’s) do not focus their anti money laundering and counter terrorism finance (AML/ CTF) risk assessments on government priorities. Instead, and largely in response to supervisory expectations, AML/CTF risk assessments are focused on technical compliance with requirements rather than the effectiveness of the FI’s efforts to prevent and detect financial crime. This exercise typically culminates in an enterprise-wide risk assessment which tends to be very long, complex, and focused on data, documentation, and process rather than outcomes.’

This begs the question as to how effective and efficient the apparatus of AML /CTF regulation really is?

There is no doubt that the issue is serious. The National Crime Agency (NCA) assessment for the UK published in spring this year said: ‘Money laundering is a key enabler of serious and organised crime, which costs the UK at least £37 billion every year. The NCA assesses that is highly likely that over £12 billion of criminal cash is generated annually in the UK and a realistic possibility that the scale of money laundering impacting on the UK (including though UK corporate structures or financial institutions) is in the hundreds of billions of pounds annually.’

However, for many high street firms it might be argued that without a further breakdown of the nature and types of crime and criminal involved, proportionality should be a relevant consideration. A small transaction limit would represent a rational and reasonable approach enabling scarce resource to be targeted into priority areas.

In its 2019 report the Law Commission came down against this view in its recommendations saying: ‘we considered whether there was merit in reducing the scope to eliminate those with little intelligence value by: (1) limiting the scope of reporting all crimes to just serious crimes as defined; and (2) extending the circumstances in which a reporter may have a reasonable excuse not to make a disclosure.

Ultimately, we concluded that it would be desirable to maintain the status quo for the reporting of all crimes. This is principally because the intelligence value of suspected criminal property will not necessarily correspond with how serious the crime is, or how valuable the intelligence is. This is particularly true of suspected terrorism financing SARs. A threshold of seriousness may also create additional burdens for reporters who would be required to identify the underlying offence’.

So the public interest was considered to rest in continuing the status quo – a rationale that seems unconvincing and rings somewhat hollow without hard evidence that the measures currently in place are effective and efficient and are producing significant successful results.

Continued on next page The Bill of Middlesex | 11

ARTICLE

Continued from previous page

The SARs submitted were in relation to the following:

There is an incongruity between the matters that require rule based compliance and those where risk is for personal assessment. But given the fear of failing the standards set by regulators and the sanctions that may follow the outcomes can be perverse as many firms may tend to exclude subjective risk assessments and adopt risk averse benchmarks that tend to narrow the services that are offered and the profile of client and matter that will be accepted.

■ property conveyancing ■ fraud ■ tax evasion ■ bogus investment schemes ■ clients / funds from high-risk jurisdictions ■ high-risk commodities (precious and scrap metals) ■ aborted property transactions ■ no underlying legal service or purpose for transaction ■ complex offshore company structures/trusts.

Even greater scope for complexity and misunderstanding arises from the provisions of the Proceeds of Crime Act 2002 (POCA) itself. Money laundering is defined by the offences described in ss327-329 POCA and S330 requires persons in the regulated sector to report “money laundering” where they know or suspect, or have reasonable grounds for knowing or suspecting, that another person is engaged in money laundering. Under POCA s330(6) there is a possible defence to the failure to make a disclosure as no offence arises under s 330 if there is a reasonable excuse for failing to make a disclosure in three situations: ■ you have a reasonable excuse.

■ you are a professional legal adviser, or a relevant professional adviser and the information came to you in privileged circumstances; or ■ you did not receive appropriate training from your employer.

On 2 June 2021, the Crown Prosecution Service (CPS) updated its guidance on prosecuting failure to report cases under s330 Proceeds of Crime Act 2002 (POCA).

Prior to the update, the CPS did not charge failure to report offences under s330 POCA where there was insufficient evidence to establish that money laundering was in fact planned or undertaken.

The updated guidance states that the CPS considers that it is possible to charge a person under s330 POCA even where there is insufficient evidence to establish that money laundering was planned or has taken place.

This indicates a focus on “professional enablers” of money laundering and removes a barrier to prosecution with the consequence, that the update guidance may encourage more “defensive” SARs to be filed. In the absence of judicial guidance as to what will constitute a reasonable excuse it is it is important to record the decision-making process to be in a position to answer an allegation of failure to make a disclosure under s330.

It does not seem appropriate that a criminal sanction should attach to the level of breach in question.

The SRA is committing greater resources to its monitoring and investigation. In its October report to OPBAS the SRA reports that it has submitted an increased number of SARs as it had identified a suspicion of money laundering through its work. The number has gone from 11 in 2017/8 to 39 in 2020/2021.

This is stated to reflect: ■ the presence of a dedicated money laundering reporting officer (MLRO) and AML team ■ increased staff training on when to submit an internal SAR to the MLRO for review ■ more proactive supervision of firms carrying out work that falls under the regulations.

12 | The Bill of Middlesex

Attention is drawn to SRA Warning Notices at: https://www.sra.org.uk/solicitors/resources/moneylaundering/how-we-regulate/ Given the perspectives and comments set out above, it will come as no surprise to readers to know that the author's personal response to the Call for Evidence suggested that: ■ the questions that need to be asked should be redirected to address how effective the current system is at preventing the growth of money laundering and terrorism financing ■ there should be a full assessment of the impact upon enforcement of crime; upon the productivity of the regulated sector; and of the cost to the regulated sector and the public taking account of State and other resources invested.

The conclusion might well then be for changes to make the regulation of money laundering effective and relevant to all of those businesses within the regulatory net and their customers and clients who must bear the cost. ■

Michael Garson

The views expressed are personal to the author.

Sources: 1. https://www.gov.uk/government/consultations/call-forevidence-review-of-the-uks-amlctf-regulatory-andsupervisory-regime 2. https://www.lawsociety.org.uk/campaigns/consultationresponses/call-for-evidence-uk-aml-regulatory-andsupervisory-regime 3. https://www.lawsociety.org.uk/topics/anti-money-laundering/ anti-money-laundering-guidance 4. https://www.cps.gov.uk/legal-guidance/money-launderingoffences 5. https://nationalcrimeagency.gov.uk/news/online-is-the-newfrontline-in-fight-against-organised-crime-says-nationalcrime-agency-on-publication-of-annual-threat-assessment 6. https://www.wolfsberg-principles.com/articles/publicationwolfsberg-group-statement-demonstrating-effectiveness 7. https://www.sra.org.uk/sra/how-we-work/reports/antimoneylaundering/

ARTICLE

What future for undertakings?

U

nquestioning respect for a solicitors’ undertaking has been shaken by the recent Supreme Court decision in in Harcus Sinclair LLP and another v Your Lawyers Ltd [2021] UKSC 32.

The most immediate result of this judgment is confirmation that solicitors’ undertakings provided by LLPs are not summarily enforceable by the court. Given the important role of solicitors’ undertakings in transactional matters, this gave the Supreme Court cause for concern and expressed the hope that Parliament would “consider the lacuna that this judgment has confirmed”. In the meantime, not many solicitors will be willing to step up and provide personal undertakings to bolster consumer confidence, and so it may be that the market will have to find other ways to fill the gap.

The case brings into focus questions regarding the nature and enforceability of solicitors’ undertakings as well as the Court’s inherent jurisdiction to supervise solicitors. The decision simply confirmed that the inherent jurisdiction over solicitors as Officers of the Court does not extend to control the conduct of SRA authorised bodies through which solicitors practise or indeed by extension to Licensed Conveyancers.

The background to the case was a nondisclosure agreement in a group litigation matter where in return for confidential information a non-compete clause was signed by Harcus Sinclair LLP. The court held that this particular type of restriction was not an unreasonable restraint of trade or contrary to the public interest and then went on to consider whether the noncompete clause amounted to a solicitor’s undertaking.

The Court considered two questions: (i) the subject matter of the undertaking and whether what the undertaking requires the solicitor to do (or not to do) is something which solicitors regularly carry out (or refrain from doing) as part of their ordinary professional practice; and (ii) the reason for the giving of the undertaking and the extent to which the cause or matter to which it relates involves the sort of work which solicitors regularly carry out as part of their ordinary professional practice.

If both questions could be answered affirmatively then the undertaking was likely to be a solicitor’s undertaking.

The subject matter of the undertaking in this case was a promise not to compete with another law firm and that was held not to involve the type of work which solicitors undertake not to do as part of their ordinary professional practice. Solicitors are not in practice not to work. However, it was difficult to conceive of circumstances where such a non-compete undertaking could be given on behalf of a client.

Further, the reason for the undertaking was to advance business interests of the parties rather than that of any client and that was not part of their ordinary professional practice.

As Harcus Sinclair had thus given the undertaking in a business capacity rather than a professional capacity, the clause was held not to be a solicitor’s undertaking.

Although it was not necessary for the court to go on and decide whether the court would have enforced had the non-compete clause been a solicitor’s undertaking the court went on to explain that the inherent supervisory jurisdiction over solicitors as Officers of the Court would apply only to undertakings given personally and not where given on behalf of an authorised body by whom the solicitor is employed.

Neither LLPs nor incorporated bodies are recognised as Officers of the Court so as the law stands the obligation in this case was enforceable by proceedings in the usual form rather than the summary procedure that is possible where the inherent disciplinary jurisdiction is invoked.

Furthermore, and more troubling is that enforcement against the solicitor would not have been successful where the undertaking had been given on behalf of Harcus Sinclair and not in a personal capacity.

Whilst a breach of undertaking amounts to professional misconduct that can be the subject of regulatory sanction that remedy has not been automatically available over recent years and this decision may somewhat justify that position taken by the SRA and may also give rise to a claim for breach of contract.

In the case of undertakings entered into with, or on behalf of, LLPs and other incorporated law firms there is a new realisation that there is no prospect of a regulatory remedy or summary relief from the court if difficulties are encountered. Consideration will need to be given where monetary obligations are involved as the loss of protection will be a concern for solicitors and their clients and insurers alike.

Solicitors are familiar with the obligations that go with any undertaking and the need to ensure terms are clear and within the control of the person giving the undertaking but may need now to recognise that enforcement will be a matter for resolution by the courts. Traditionally, the jurisdiction of the court has been regarded as a particularly effective remedy because solicitors as Officers of the Court are able to rely on an application to the court without separate proceedings to request the court to enforce against a solicitor under its inherent jurisdiction. The sanction for breach has been sufficient to ensure undertakings can be safely used to perform an essential role in the transaction process for generations of solicitors.

As a consequence of the judgement practitioners need now need to review their internal policies and procedures for giving and receiving undertakings and perhaps more importantly consider the explanation of risk to clients where it is necessary for an undertaking to be accepted in the course of a transaction.

Continued on next page

The Bill of Middlesex | 13

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Continued from previous page In recent years it has become commonplace for undertakings to be written under the signature of the organisation for whom the solicitor is working. It seems unlikely that a solicitor employed within an incorporated practice or LLP, whether or not they are a partner or director, will be willing to give a personal undertaking even if pressed to do so.

If enforcement must rely upon proceedings before the court then in matters where money is not produced on time, there could be significant delay or disruption to transactions.

It may not be a forgone conclusion that the indemnity insurance of the party in breach will be engaged as it may need to be decided whether or not a solicitor has been negligent in giving or accepting the undertaking or its breach.

Steps therefore now appear to be necessary to give clients clear information as to the nature and type of the risks attaching to the exchange of any undertaking between solicitors. It is not easy to know at this stage what alternative ways of dealing will be adopted in the areas of work where reliance upon solicitors’ undertakings is pivotal especially in the event that clients decline to accept the risk. Clarification by way of guidance for residential conveyancing is to be expected.

Alternatively the adoption of the commercial practice in larger transactions of recent years where the transfer of funds takes place direct between clients may be hastened thus avoiding what appear to be inherent risks of fraud and cybercrime when transfers are made into and out of solicitors’ client accounts.

Contract changes will no doubt follow this decision as efforts are made to avoid the type of undertaking that was required in the Harcus case.

The law would require reform to ensure that clients are fully protected when undertakings are given by solicitors or their organisations. It seems unlikely that the regulators will be moved to step up and support an extension to the court jurisdiction and instead will prefer to leave the market to adjust thus leaving the position in flux at this time. ■

Michael Garson

Immediate Past Chair Standards and Ethics Committee

Update to Members on Solicitors Indemnity Fund (SIF) A

s a result of a request by the Law Society, on 15 June 2021 the SRA announced that they had decided to extend the closure of SIF by a further year, to 30 September 2022. In addition, they made it clear that they now regarded post six year run-off cover (PSYROC) as a regulatory issue for them and that they would launch a public consultation on next steps including: ■ whether there is a regulatory place for PSYROC. ■ evidence of other comparable run off cover arrangements.

■ finding the right regulatory balance between consumer protection and issues of proportionality, affordability and the wider public interest, ■ the viability of possible options including looking at discretionary uses of the SIF surplus, including the possibility of a hardship fund.

Since this announcement the Law Society has been engaged in several meetings with retired members, various local and regional law society groups and city solicitor groups, in order to fully consult on the objectives and concerns of all sections of the membership and to explore the direction and hoped for outcome of the proposed consultation.

14 | The Bill of Middlesex

As a result of these meetings a detailed letter has been written by the Law Society to the SRA setting out the key themes and issues which emerged and pointing out the importance of dealing adequately and effectively with the issue of PSYROC, not only for the profession but also for the benefit of the consumer and to the confidence of the public in the profession.

The formal consultation is due to launch immediately after the October PII renewal. With a second more targeted consultation in early 2022, with detailed proposals forthcoming in late spring, with a view to implementation by late summer.

The results of the upcoming consultation are likely to influence the PSYROC debate for the foreseeable future. It is essential that all those that have an interest in PSYROC (which in my view should include every solicitor) should respond to the consultation. ■

Nicholas Gurney-Champion

Immediate past chair of The Law Society, Professional Indemnity Insurance (PII) Committee

ARTICLE

Closure of the Solicitors Indemnity Fund Limited (SIF) to new claims T

he protection for claims against solicitors after expiry of the 6-year run off period which is part of the SRA minimum terms of cover is coming to an end. Whilst limitation is primarily based upon six years in contract and tort, the accrual of a cause of action and a Claimant’s date of knowledge can stretch those time limits making another 15-20 years protection desirable.

The end date for SIF to accept new claims has been extended from September 2021 to 30 September 2022 principally in response to opposition from the profession. The Law Society has been aware of the imminent closure for many years and succeeded in pushing back the original planned closure date from 2017 giving time to investigate whether alternative insurance protection might be available from the market.

Insurers have not shown any interest or offered any scheme that might be viable and could be made widely available.

The SRA now plan to consult the profession and may well argue for closure on the basis that there are few claims and that the cost of defending and administering the fund is disproportionate to the public benefit. They may argue that the fund is principally a protection for solicitors rather than necessary to fill any real gap in public protection. That position is not rejected and deploys the same argument as was made when the SRA attempted unsuccessfully to reduce the amount of cover provided by the minimum terms and conditions from £2m to £1m or £0.5m in 2014 and again in 2018.

The number of claims to SIF each year is relatively small, and claims are often administered and if appropriate paid in cases where solicitors are elderly, infirm or they or their estate do not have the means to investigate or defend the claim. Many claims are filed for protection and then fall away some years later and those that are paid inevitably settle at less than the initial amount notified for which funds are reserved.

For the Law Society to provide a viable scheme in place of SIF it would need to be permitted to levy the profession and, in that case, the annual cost is believed to be small. Less than £50 per solicitor would probably raise enough to maintain the fund sufficient to pay out claims and costs running at less than £2m pa. A cushion of reserve capital would also be needed but if permitted to levy by the LSB this might be easily provided over a period of years.

It is conceivable that the LSB would not approve a levy and then it would given experience to date take time before any voluntary scheme could be offered with affordable premium and suitable cover. Discussion with brokers and insurers around market appetite, what a replacement might look like, and the challenges that might inhibit a product coming to market, such as lack of data and the current hard market with limited capacity have suggested that a “one size fits all” approach may not be workable, for a voluntary scheme.

The position for those who have retired since 2000 is worrying.

Partners and employees may be liable to receive claims, and this would extend to the former partners and employees of firms that have merged or transferred their business to a successor practice -in the event of that successor firm failing.

The situation is unsatisfactory and in need of urgent resolution as SIF has been running down the balance of its capital such that the directors and SRA are advised that a further extension is not feasible.

It is however interesting to note that the post 2000 surplus in the Fund has been successfully invested such that the return on that capital balance has been sufficient to maintain the fund over the 20-year period during which no new funds have been injected. ■

The Bill of Middlesex | 15

ADVERTISEMENT FEATURE

Calling smart law firms:

the tech you DO need, and the one thing you DON’T

W

hat are the top technologies for smart law firms? Legal practice management software?

Online file storage? Cloud-based word processors? Scanners? VoIP phones? Time recording? Online payments? E-signatures? Zoom?

Law firms are expected to provide their services at the push of a button. They’re investing time and resources in smart technologies, integrating every piece of software or device from the ground up. But with hundreds of options, identifying what technology you need is difficult.

Which begs the question: what tech DO law practices need?

Remote working capabilities COVID-19 has shown us the value in working remotely with zero obstructions. Those who’d already invested in smart technology prior to lockdown were those who adapted quickest when employees worked from home. And when 97% of employees don’t want to return to the office full time, it’s important you have the infrastructure available to support new work habits – home, office or combination. This goes beyond supplying stationery, decent laptops or additional hardware. One of the unfortunate side-effects of working from home was a 400% increase in reported cyber crimes during the pandemic’s first wave, so a comprehensive cybersecurity strategy protecting your employees and data is crucial. Encrypt your remote devices, install anti-virus software and use a VPN (Virtual Private Network) to secure your network from intruders.

Quill’s guide to the essential smart law firm technology in 2021 Discover what smart technologies to invest in, why to go paperless and how you can make the tools you already have at your disposal work harder.

Online payment processes Chasing fees from clients can be time consuming, but it doesn’t have to be. Using an online payment platform makes it simple and smooth for clients to pay their bills first time, every time. Remember, what’s better for your client is also better for you, as more on-time payments will improve your cash flow and help you budget more accurately. Options include Legl, GoCardless and Invoiced. Choose one which integrates with your legal practice management software. We’ve integrated GoCardless (and soon Legl) with Quill. Speaking of Quill…

Legal software Cloud-based legal accounts, document, practice and case management software like Quill is essential for performing your daily tasks whilst fully complying. The best software gives you the tools to see a case through to completion. With accurate time recording and straightforward document management solutions, you can be more efficient, and clients can see where their money is going, right down to the last penny. The sign of effective software is you barely notice it. It’s the silent hero that works away in the background, removing the headache of endless back-office tasks to focus on doing what you do best.

Email and phone systems From a client’s perspective, this is the most important area. Clients want to feel like you’re there for them, which requires a robust communication infrastructure. Older landline phones and copper internet connections have a tendency to break, but that’s no excuse when there’s fibre internet! For your email system, choose something that complements your word processing software or creative suite (ie.

Outlook with Office 365, Gmail with Google Workspace). There’s more flexibility when it comes to your phone systems, although VoIP phones are probably the most popular as they permit running multiple lines and calls simultaneously over the internet.

And what’s the one thing you DON’T need?

Paper We’ve cheated here, but the point still stands – paper should be the last thing on your list! Going paperless is basically just a case of storing paperwork according to the same organising system as before, only instead of locking away in filing cabinets, you can store, locate and edit from within one screen. Scan and organise then shred and recycle paper copies once no longer needed. Be consistent – using naming protocols and documenting defined procedures – and diligent with sticking to this process.

In the short term, it’s quicker and easier to manage critical documents. In the long term, it consumes less storage space, reduces operational costs, complies with data regulations and is more sustainable.

Next steps All of these technologies are useful, but what’s right for you? Start with the essentials: quality legal software. Then add in all the bells and whistles which will take you from a law firm to a smart law firm. ■ 16 | The Bill of Middlesex

Learn more: www.quill.co.uk/resources/ guide-to-the-best-legal-tech-toolsfor-uk-law-firms-and-lawyers-in-2021

ARTICLE

Back to life: returning to normality after lockdown F

or many of us the last few weeks have meant a return to a ‘normal’ of sorts, for some of us a return to the office has already happened, or if not it’s likely to be on the horizon.

Despite restrictions lifting the reality is that we simply will not bounce back to our normal pre COVID-19 selves right away after spending so much time at home. We may have largely forgotten the social norms, behaviours and routines that were once familiar to us and we will have to relearn and remember how to be around people again, how to commute, how to behave in an office, even simple things like how to operate the lift at work or have a conversation may be a challenge to start with. We will no doubt face many challenges on a practical and emotional level.

Feel the feelings After over a year of being in survival mode with a low level (and for some a high level) of stress in the background all the time we have a lot of feelings to process as things get back to normal.

Whilst some of these feelings will be positive such as excitement and relief, we are also likely to be fearful, nervous, and anxious of the changes coming and how we will deal with them. We may have residual feelings of grief, sadness and anger for everything and everyone we lost during lockdown. Focus on what you ARE feeling rather than what you SHOULD be feeling – suppressing your feelings and emotions won’t help.

Expect to feel tired It’s best to take things slowly and to leave some clear space in your calendar, as once you are back in the office you will initially be very tired and need time to process the change, rest and reflect. On the plus side, our brain thrives on physical activity and novelty, so after a few weeks hopefully you will feel energised as the fog of the last 18 months begins to lift.

Be prepared for setbacks It’s likely that there will some bumps on the road back to normality. Recognise that best laid plans often have setbacks, so keep an eye on how you are feeling, how you are coping and be kind to yourself.

Don’t rush into any decisions about work Don’t make any decisions about committing to a return to the office full time straight away if you can help it. You need to really think about what’s best for you and your situation, everyone is different. Be confident to share your feelings about returning with your line manager or HR. You may not want to work the same hours as before or you might permanently want to request to work at home. Make the new normal work for you rather than defaulting to what used to be.

Look after yourself Many of us have got into good habits in lockdown and are managing to sleep better, eating right and getting exercise. Try not to let these healthy habits slide once you’re back in your usual routine, as they help to keep us mentally and physically well.

Share how you are feeling Just talking to someone about your worries, a colleague, a friend, LawCare, can help you process your emotions and feel calmer and less stressed. We can all take comfort from feeling similar things as those around us in the coming weeks and months.

LawCare provides emotional support to all legal professionals, support staff and their concerned family members. You can call our confidential helpline on 0800 279 6888, email us at support@lawcare.org.uk. or access online chat and other resources at www.lawcare.org.uk.

Excellent resources on going back to work are available on the ACAS website: www.acas.org.uk/working-safely-coronavirus/ returning-to-the-workplace. ■

The Bill of Middlesex | 17

ADVERTISEMENT FEATURE

Legal Aid: Are you ready for the changes to claim checks for civil submissions?

A

t the beginning of July, the Legal Aid Agency (LAA) posted an update in its News Section regarding improvements to their checking system for civil claims. It can be found here: https://www.gov.uk/government/news/civil-news-speedierpayments-drive-and-new-guidance-on-rejects.

Less of a “blanket” approach and more of a “targeted” one. The idea therefore is that providers will begin to see less “further information” requests and “rejects”. By following the guidance and checklist and the LAA corresponding very specifically with providers, more claims should be processed faster, the first time.

The LAA will be focusing on providers giving more accurate information to speed up the payment process. They will also be guiding providers more closely and with more specific reasons as to why a claim has been rejected.

I recommend providers review this update carefully and determine how it is likely to affect them. Ensure that everyone in the claiming process at the firm is aware of the changes and that all questions are asked and answered before the changes go live.

The LAA states that the following changes will be included:

The LAA has made significant upgrades to their resources recently and their training and support website is excellent. It can be found here: https://legalaidlearning.justice.gov.uk/.

■ There will be an updated guidance page for billing claims on GOV.UK ■ There will be a provider checklist for Client and Cost Management (CCMS) that providers can use to assist them with their submissions.

■ There will be a more specific “reject” process which aims to reduce the amount of “further information requests”.

The aim is that, with the updated guidance and the provider checklist, in time the number of rejected cases will reduce. Then, because of the more accurate information provided in the first instance, the providers will give all required information correctly first time.

The LAA have stated that it is a two-stage process to get the claim through for payment: 1. Claims that fail stage 1 will be returned for amendment or additional information.

2. Claims passing stage 1 will move to stage 2 for checking. If a claim fails at stage 2, it will be returned.

3. If all checks are passed, the claim will be completed for payment.

The key therefore is to utilise the documentation provided by the LAA to ensure that the specifics of each claim are added correctly.

Trying to submit claims as per the old guidance will likely result in rejections which will require amendment and then resubmission.

The LAA have acknowledged that there will likely be an increase in rejections recorded on firms’ Provider Activity Report (PAR) as a result of the changes. The reason behind these may be down to providers not following the new guidance and checklists and also because the new process includes “improved reject reasons and requests for further information that were not historically included in the reported reject figure”.

The LAA is focusing on the finer details on claims where they can be more specific on their correspondence with providers.

18 | The Bill of Middlesex

It is worth reviewing some CCMS bill submission training before the changes are rolled out and having a conversation with your contract manager to ensure that all resources are at the firm’s disposal beforehand.

If the firm is unprepared for changes to CCMS billing, it is inevitable that there will be a significant increase in bill rejections.

This will have a knock-on effect where the firm does not get paid quickly and could see a significant reduction in cashflow.

This could cause serious problems for those firms that rely on a certain amount from the LAA on their weekly BACS schedules.

The other aspect to consider is that by contributing to the LAA’s volume of rejected claims, the firm would be contributing to a backlog that the LAA will inevitably have to clear. Again, this will inevitably delay funds due to the firm and could cause cashflow issues.

My advice would be to review the guidance, get the training, confirm the position and the implementation dates with your contract manager and prepare fully for the changes. This will significantly reduce the number of rejections, ease stress and ensure that cashflow is minimally affected. ■

Alex Simons

New Business Manager The Law Factory LLP www.thelawfactory.net

ARTICLE

CQS update Eleanor O’Reilly-Joe is Head of Accreditations at the Law Society, she provides an update on revisions to the Conveyancing Quality Scheme (CQS) and the re-introduction of onsite assessments as firms return to the office

W

hen the pandemic hit, all CQS onsite assessments were put on hold to focus on supporting accredited practices during this challenging time. As we emerge from coronavirus restrictions, we will re-introduce onsite assessments and adapt CQS to new ways of working and further updates to the scheme will reflect this.

However, where required, the scope of the assessment may be broader than the key risk areas.

When the updated Core Practice Management Standards (CPMS) were launched in 2019, we introduced onsite assessments. The initial pilot we undertook focussed on identifying areas of non-compliance and setting out corrective action to support accredited practices in embedding a culture of continuous improvement and to ensure compliance with the Standards. Following the pilot, we will feed those learning points into the next round of assessments. The CPMS is a living document and we review and update it from time to time as required – the next update of the CPMS with expanded Guidance Notes is scheduled for later this year.

1. The key documents that form part of the onsite assessment process will be published on the Law Society’s website.

2. Practices selected for an onsite assessment will be expected to review the key documents and complete a selfassessment checklist ahead of the assessment.

3. Firms will be advised in advance of what plans, policies and procedures will be reviewed. These documents will need to be submitted in advance to the CQS office. Sufficient notice to practices of an upcoming assessment will be provided along with a choice of dates.

The core values The core values that were launched in November 2018, will remain at the heart of CQS with the aim that members: ■ proactively and effectively manage risk and demonstrate behaviours that support and promote the integrity of CQS and the community ■ demonstrate best practice and excellence in client care through robust practice management of residential conveyancing ■ demonstrate thorough knowledge and skill in handling conveyancing transactions Over the coming months, we will release an updated version of the Scheme rules, which will demonstrate our commitment to these core values.

Onsite assessments The updated version of the Scheme rules will set out in detail the onsite assessment process to ensure that practices selected for visits are able to sufficiently prepare. The aim of the onsite assessment will be to verify that those practices accredited against CQS meet the Standard by having: ■ documented plans, policies and procedures in place as required by the CPMS ■ compliance with the Protocol evidenced on the files It will seek to review whether the plans, policies and procedures have been embedded into the culture of the practice and understood by the staff. Both open and recently closed files may be selected for assessment.

Key risk areas The focus for the next round of assessments will be on the key risk areas that we have identified including: ■ Stamp Duty Land Tax ■ Fraud ■ Level of service

■ Anti-money Laundering ■ Leasehold

What can firms expect?

During the process of assessment CQS firms can expect: the following:

The assessment will consist of: ■ An opening meeting with the Senior Responsible Officer (SRO) and Head of Conveyancing (HOC) ■ A review of a selection of open and closed files ■ Interviews with the SRO/HOC and selected fee earners ■ A closing meeting with the Senior Responsible Officer and Head of Conveyancing Interviews with fee-earners will focus on key risk areas, compliance with the Protocol and the CPMS. The interview with the SRO/HOC will include questions relating to supervision and the conveyancing practice. Note too that with file reviews, we will expect to see an AML & fraud risk assessment on each file.

Where non-compliances are identified, the practice will be notified in writing of the corrective action required. A timeline will be provided to the practice wherein the practice is required to undertake the corrective action and provide satisfactory evidence to the CQS office. Where the practice has carried out the corrective action, the practice will be notified that no further action is required. Where a practice fails to take the required corrective action within the prescribed timeline, may result in the practice having their accreditation revoked.

The selection process All practices applying for initial CQS accreditation will be required to undergo an onsite assessment. Practices already accredited may be selected either: ■ at random ■ as a result of information provided as part of the reaccreditation process ■ as a result of intelligence received We will continue to support accredited practices throughout the year by communicating regularly with SROs highlighting relevant matters, holding webinars and working with stakeholders. We are committed to raising the profile of CQS and continuing our engagement with key stakeholders and lenders. ■ The Bill of Middlesex | 19

ARTICLE

Virtual reality in a new era I

recently settled, in mediation, proceedings with a stake of several tens of millions of pounds, with a full contingent on each side. Whilst we would have preferred a meeting, that was clearly not going to be possible with pandemicrelated restrictions, and so the mediation proceeded remotely. There were twelve attendees, in 11 different locations, each at their screen.

The exercise was a wonderful extension of a normal mediation.

At the click of a key, the mediator could place us all in a single virtual room, for introductions and opening statements, and then, at another click, take the parties into their own virtual rooms, where the claimants and their advisers and the defendants and theirs could be blocked off from each other, but in which members of the team could communicate with each other perfectly well. The mediator could of course enter either room. Nobody from either group could enter the other’s virtual room. Further break-out rooms were available for the mediator to speak to only certain members of either team, or for those specified members to speak to each other.

The mediation lasted 17 hours, by the end of which a resolution had been reached, drafted, amended, recorded and signed up.

It is very easy to imagine that almost all client meetings, discussions between opposite solicitors, and with counsel and experts and witnesses, could be held remotely. In noncontentious work templates of entire documents – contracts, leases, partnership agreements, manufacturing or distribution agreements – could be amended in virtual meetings, with every participant typing into the same document so that all others could see the contribution on their own screen as they were being typed. In contentious work, entire bundles could be created in a single meeting with counsel and the clients, electronically paginated and then labelled and tabbed, for interlocutory hearings and indeed trials. Internal discussions, team meetings, the formulation of strategy – practically everything could be done virtually.

So, has the pandemic taught us a different way of working?

We have certainly begun to use video conferencing far more often, and it is likely to replace telephone conferencing. With video conferencing and with real time document creation in the course of a conference, we now able to work on documents collaboratively and more efficiently than we have ever been able to do in the past – and, indeed, far more speedily. Even lengthy trials are now being conducted remotely, and the concern that witnesses may receive prompts on their screens during examination is addressed by ensuring that associates – safely distanced – are in attendance without a whole courtroom of people being in the same real room. Associates have, after all, long been used to assist a witness to locate documents in a voluminous bundle.

Within 40 years, we have gone from taking manuscript notes of instructions and typing documents several times over to being able to deliver them in a split second and read and explain them 20 | The Bill of Middlesex

Rohit Sanghvi

to larger groups of stakeholders in a case, to break out and discuss them in privileged meetings, and to produce a final, agreed, document at the end of a virtual meeting.

With these developments, where are we headed in legal practice?

Decades ago when I was training, my principal told me not to become a slave to the document, and instead to ensure that the document was my slave. I needed to reflect the client’s instructions, not to assume, by reference to a template, what they might be. But increasingly, today, in non-contentious work, we hear clients ask not whether a particular provision is in their interests, but rather whether it is “standard”. If so, the client is far more willing to accept it.

Combine, then, the ability to work remotely, to work on documents in real time, to draft them and amend them and discuss them and agree them in a single, often swift, meeting, with a restricted opportunity to consider a variety of permutations, and one wonders whether the whole of society is heading towards accepting what is “standard”. If so, there is a legal services revolution round the corner in the provision of many types of legal services. In non-contentious work, more and more will practitioners work with templates, and more and more will clients discover how the document really affects them only if a dispute arises, and less and less will they tolerate delay, lengthy explanations of rights and obligations, or high cost. In contentious work, too, there are significant changes already in train – issue-based disclosure, for example.

The immediate concern for law firms will then be to ensure that they are not exposed to liability where the client requires speed in an environment which lends itself to speed. Almost all firms now set out at the outset in their terms of engagement the content of the service they will provide, but many firms fail to exclude services from their offering to the client. Firms will need to front-load in their terms of engagement not only what they will do for a client, but also what they will not do. If a client agrees, expressly, that a service will not be provided, and if the service is in fact not provided, they can hardly complain that it was provided in breach of contract or that it was provided negligently, or indeed that there was a negligent omission to provide it.

There is an intriguing possibility that within a decade, clients will demand legal services which are tailored to their own assessment of the rights they want, the obligations they are willing to accept, and the risks they are willing to run. If that happens, the bespoke legal service will become a relic of the past. ■ Rohit R Sanghvi, Partner and founding member of R R Sanghvi & Co, Solicitors. He specialises in cases which throw up exceptional legal challenges at the frontiers of the law, developing persuasive arguments for the benefit of his clients.

XXXXXXXXXXXX

Senior Solicitor – Residential and Commercial Conveyancing to Head up our Property Department Are you a senior Solicitor or Legal Executive with substantial experience of residential and commercial conveyancing?

We are looking for someone like you to Head up our Property Department.

We are a busy, expanding firm in the heart of Winchester providing services to Hampshire and beyond, and we are looking to add someone like you to our Property and Conveyancing Team.

We offer an enjoyable and rewarding working environment and a very friendly team. We have been awarded a Highly Commended in the Law Society Excellence Awards 2021 for our practice management.

What skills and attributes will you need?

■ ■ ■ ■ ■ ■ ■

Technical Competence 5+ years PQE Initiative Ambition Demonstrated leadership skills Demonstrated knowledge of the local market A commitment to excellent service

Our Property Department has strong links to the local estate agents and existing commercial and residential property clients. We are looking for someone who will be dynamic and motivated to foster those links and develop new ones.

You will have a thirst to continue to grow the existing experienced and well respected Property Team and an eye for compliance (especially with regard to SDLT) and efficiency.

Your salary will be in line with market rates and reflect your level of experience, with the possibility of future solicitor partnership.

See our Property Department page here: www.shentons.co.uk/property-conveyancing.html Please apply by sending your CV and covering letter explaining why you are suitable for this exciting opportunity to our Practice Manager, aedgerleyharris@shentons.co.uk The Bill of Middlesex | 21

ARTICLE

COVID-19 and the workplace – will there be return to normality?

T

he impact of the pandemic on businesses in the legal sector, as for others, has been massive. Changes required by the existence of the virus have emptied offices and forced home working to become the norm. Even as late as May 2021 with the threat of a third wave the scientific advice was warning against returning to the office and recommending that workers continue to work from home for the foreseeable future. So, what can we learn form the polls, research and offerings of those most closely connected with impact of this pandemic on businesses and staff?

There are many informative reports that can offer guidance on how we could deal with the return to normality - if indeed the “old” normality can ever be resumed.

A report found that home working negatively affects both earnings and career progression.1 Between 2013 and 2020 people who worked from home were on average 38% less likely to have received a bonus. And analysis showed that between 2012 and 2017 people who mainly worked from home were less than half as likely to be promoted.

In a poll taken of more than 2000 adults, 71% were optimistic that the vaccine rollout would enable them to return to their workplace as normal, an increase from 50% three months earlier and a majority (75%) said they would be comfortable taking a covid test before returning to the office.2

22 | The Bill of Middlesex

Despite the move to remote working, a survey conducted by the ONS between October and December 2020 of nearly 75,000 workers found that there was a decline of all types of flexible hours working such as part time, flexi time and annualised hours. This contrasted with a 100% increase in home working, which doubled between the first quarter of 2020 and the last.3 Around 1 in 5 (21%) adults experienced some form of depression in early 2021 (27 January to 7 March); this is an increase since November 2020 (19%) and more than double that observed before the COVID-19 pandemic (10%). Around 1 in 3 (35%) of adults, who reported being unable to afford an unexpected expense of £850, experienced depressive symptoms in early 2021, compared with 1 in 5 (21%) adults before the pandemic; for adults who were able to afford this expense, rates increased from 5% to 13%.4 This shows that being economically challenged is more likely to cause depression.

Mental health has become a much greater issue. Statistics show that the pandemic has had a serious impact on mental health. The Mental health issues that predominate are depression and loneliness.

Employers need to adapt their ways of working to better support their staff’s mental health according to Andy Bell, the CEO of the Centre for Mental Health, a charity with over 30 years’

ARTICLE

experience in providing life changing research, economic analysis and policy influence in mental health, and whose work includes physical health, wellbeing, inequality and multiple disadvantages.5 There has been a massive increase in domestic abuse caused/ exacerbated by the lockdowns, furloughing and job loss. The police recorded 206,492 violence against the person offences flagged as domestic abuse-related between March and June 2020, a 9% increase compared with the same period in 2019.

The number of offences flagged as domestic abuse-related in this period increased for all offence groups compared with the previous year.6 Although both men and women are affected, incidence and severity are much greater for women: the World Health Organization recently estimated that a third of women worldwide experience domestic violence or abuse in their lifetime.7 We have no data yet from population surveys, and administering these during lockdowns is challenging as it may not be safe for someone to disclose violence or abuse when perpetrators are likely to be present. In the UK, domestic abuse includes abuse by an adult within a household or family who is not a spouse or intimate partner. This type of abuse is also likely to have increased, but we have no supporting data8. So, there is a likelihood that domestic abuse may be a factor in relation to staff working from home.

More than two-thirds of adults in the UK (69%) report feeling somewhat or very worried about the effect COVID-19 is having on their life. The most common issues affecting wellbeing are worry about the future (63%), feeling stressed or anxious (56%) and feeling bored (49%). While some degree of worry is understandably widespread, more severe mental ill health is being experienced by some groups. IFS analysis of longitudinal data from the Understanding Society study 9 found that, taking account of pre-pandemic trajectories, mental health has worsened substantially (by 8.1% on average) because of the pandemic. Groups have not been equally impacted; young adults and women – groups with worse mental health pre-pandemic – have been hit hardest. The UCL COVID-19 social study of 90,000 UK adults has monitored mental health symptoms throughout lockdown, finding levels of anxiety and depression fell in early June as lockdown measures began to lift. But these remained highest among young people, those with lower household income, people with a diagnosed mental illness, people living with children, and people living in urban areas.10 All this suggests that COVID-19, and the response to the pandemic, could have a significant impact on the nation’s mental health through increased exposure to stressors.

Exacerbating this, there has been a loss of coping mechanisms for many, and reduced access to mental health treatment.11 Return to the office presents employers with challenges. A BBC poll12 of 50 of the UK’s largest employers collectively employing 1.1 million people found that 43 firms planned to use a mixture of home and remote working. However, the challenges relating to office space will be difficult to resolve. One large central London employer said that if people are working from home three to four days a week, they probably would need 20% less space, but they're not going to do that if everyone's working from home on Mondays and Fridays. On the other hand, some employees are keener to return to the office than others because of their experience of home working. Forcing some employees to undertake flexible working by requiring them to work part of the week at home may not bring any/many of the benefits available to employers of flexible working such as those who live alone or do not have a suitable place to work.

This raises the clear need to be discussing this carefully with

employees on an individual basis and listening to their needs.

Decisions need to be made based on what is best for individual staff and not just what seems to make sense for the business.

Giving the staff the opportunity to individualise their jobs and participate in work interventions can support wellbeing, engagement and productivity. Mike Robinson, the CEO of the British Safety Council, said it was ultimately up to businesses to decide when and whether employees returned to the workplace based on their operations, so long as they were compliant with government regulations. “This reinforces the importance and need for employers to carry out a COVID workplace risk assessment to protect workers.” Many employees have concerns around travelling on public transport, health, catching COVID, adapting to a new routine and having to readjust to working life in the office. These concerns bring anxieties, higher levels of nervousness, hypervigilance about who is around you in the workplace and what protocols exist in the workplace and whether these are being observed.

The Institution for Occupational Safety and Health stated: “Thanks to the onset of mass vaccination, we can now look forward to better times, but further storms will be lying in wait.”

We will see: ■ A greater threat from the spread of zoonotic, communicable diseases, as highlighted by the World Health Organization.

■ Businesses having to double down on the health and safety practices they’ve been advised to implement during COVID to ensure resilience is maintained in the future.

■ Infection prevention and control will become an established part of ‘business as usual’, with stopping the spread of pathogens through good hygiene practices and testing being part of the necessary requirements and portfolio of skills and techniques we will need to steer us to safety through choppier moments.

■ As we continue to work differently, with less travel and more digital and remote working, employers will have to work to ensure the mental wellbeing of their staff, factoring people’s mental health in all their risk assessments, manager training, leadership and communication.

■ Significant numbers of workers will be living with the impact of Long COVID, a still little understood condition which is reported to have around 200 different symptoms some of short duration but some of very long duration. Moreover, as this is new to medical science there are no clear and tried treatments available. How can professionals get to fully understand their needs? How can employers support them in their return to work? How can the impact of Long COVID on occupational health be best managed?”13 Some numbers about returning to the office: ■ 44% say their workforce is concerned about contracting COVID on public transport; ■ 9% of employers are mandating office attendance and would consider legal action against those who refuse; ■ 15% are mandating office staff to go into work every working day once government advice changes; ■ 53% of staff are concerned about contracting COVID at work; ■ 46% of employers say employees are worried about maintaining childcare provisions after returning to the office; ■ 62 % of employers are offering more mental health support for employees returning from home working; ■ 43% of employers will require staff to be in the office for a minimum number of days per week when re-opening; Continued on next page The Bill of Middlesex | 23

ARTICLE

Continued from previous page ■ 67% of employers are offering either slightly increased or significantly increased flexibility after re-opening; ■ 57% plan to introduce training on their COVID guidelines for those returning from home working; ■ 44% say their employees are worried about returning to more structured hours; ■ 57% say their employees are worried about the extra time taken by commuting and the cost; ■ 13% say they are concerned about looking after a new pet acquired during the pandemic when they return to the office; ■ 25% of fitness notes issued by GPs were for a mental health related condition; ■ 25% of employees have not received a mental health checkin by their employer since the beginning of the pandemic; ■ 40% of employers are allowing staff to go into the office on days chosen by them after reopening;14 Some statements, facts and statistics about the effects of the pandemic: ■ Under 25s accounted for 54% of job losses in the past year; ■ Job losses were predicted to become more evident when the restrictions were lifted15. The loss of a job can, and often is, a life changing event with potentially severe consequences.

Research results suggest that involuntary job loss is significantly associated with both physical disability and poorer mental health and that negative health effects of involuntary job loss are significant for older workers16. Part time workers are particularly at risk of job loss17.

■ 5% of mid-sized businesses believe that full time office working will be most effective for their staff post the pandemic.18 ■ Employees will need information to cope with returning to work in the office on issues such as hygiene, sanitation, one-way systems, social distancing, and Perspex barriers amongst others.

■ From a legal point of view as long as employers have done their duty of care to ensure staff are safe in the workplace the rest is down to the employee. So, an employee’s commute and personal concerns about returning to work in the office are their responsibility the law says.

■ An employee may have lost a relative, colleague or friend during the pandemic. The grieving process has not been normal during this period. They will be dealing with grief and coming back to work at the same time so every case will have to be managed.

■ You cannot put the business first. You must put people first at this stage and make the journey back to the new post pandemic normality jointly19.

■ Years of research into flexible working shows that creating two tiers of workers can lead to discrimination against people who work from home because they are not seen.20 and research from the ONS suggests that this is already happening.21 ■

Alastair Logan OBE., LL.B.,

Council Member for the Surrey Constituency

24 | The Bill of Middlesex

1. https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/labourproductivity/articles/homeworkinghoursrewardsandopportunitiesintheuk2011to2020/2021-04-19 2. https://www.aviva.com/newsroom/news-releases/2021/04/ seven-in-ten-workers-feel-optimistic-about-returning-to-workas-UK-opens-up/ 3. https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/labourproductivity/articles/homeworkinghoursrewardsandopportunitiesintheuk2011to2020/2021-04-19 4. https://www.ons.gov.uk/peoplepopulationandcommunity/wellbeing/articles/coronavirusanddepressioninadultsgreatbritain/ januarytomarch2021 5. https://www.centreformentalhealth.org.uk/news 6. https://www.ons.gov.uk/peoplepopulationandcommunity/ crimeandjustice/articles/domesticabuseduringthecoronaviruscovid19pandemicenglandandwales/november2020 7. WHO. Devastatingly pervasive: 1 in 3 women globally experience violence. Press release, 9 Mar 2021. https://www.who. int/news/item/09-03-2021-devastatingly-pervasive-1-in-3women-globally-experience-violence 8. https://www.bmj.com/content/372/bmj.n722 9. https://www.understandingsociety.ac.uk/research/publications/526124 10. https://www.health.org.uk/news-and-comment/blogs/emerging-evidence-on-covid-19s-impact-on-mental-health-andhealth 11. Ditto 12. https://www.bbc.co.uk/news/business-56972207 13. https://iosh.com/more/news-listing/building-health-and-safetypractice-for-a-new-world/ 14. People Management June 2021 15. Gazette 10 June 2021: “85 secretaries, support staff and lawyers leave big city firm” 16. https://www.health.org.uk/publications/long-reads/unemployment-and-mental-health 17. https://www.bbc.co.uk/news/buisness-57399667 18. Censuswide (on behalf of Grant Thornton UK LLP) surveyed 603 senior decision makers in UK mid-market businesses between 19 March 2021 – 29 March 2021. The UK mid-market is defined as businesses with an annual turnover of £50million – £500million 19. People Management June 2021 20. Emma Parry, Professor of Human Resource Management at Cranfield University 21. https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/labourproductivity/articles/homeworkinghoursrewardsandopportunitiesintheuk2011to2020/2021-04-19

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Can legal services learn from financial services when embracing technology in the new normal?

By Dave Seager, former MD and now Consulting Adviser to SIFA Professional

O

bviously, I have always worked in financial services and in the last 13 years specialised in the cross over between legal and financial, so I think I am fairly well qualified to compare and contrast how the 2 sectors operate. I feel this is interesting this year, as solicitors are considering the move back to face to face, while many in the profession and indeed their clients have actually enjoyed the essential move to technology and online interaction during the pandemic.

By now, rightly or wrongly, most of the UK should be able to revert to a pre-March 2020 normality, but the question is will it?

In the legal sector, advice of a detailed or delicate nature has always been handled in person, and I think we would all expect this to be the case again. Whilst less sensitive, more process driven legal work, conveyancing for example, may utilise technology far more.

In financial services 4 to 5 years ago there was quite the panic around the expression ‘Robo advice’ and whether technology might edge out face to face advice. Of course, this has not proved to be the case at all. In fact, financial planners have successfully harnessed technology to deliver more basic or repeat advice, for example, when completing ISAs and investment top ups. This, in turn, allows more time to be dedicated to ‘more valuable’ clients where in person advice and reassurance is required.

It seems likely that the legal services sector, over this year and next will find a comfort zone between technology, online communication, and face to face, as has been the case with financial services. Certainly, the financial services sector, although it took some firms longer than others, have fully embraced the functionality and benefits that their back office and CRM systems can provide, when utilised properly.

The ability to house and link client details and fact finds, advice given, track previous services purchased is essential, but it is the way it can allow you to personalise the customer experience and journey that is the real benefit and one that I sense solicitor firms are yet to truly embrace.

The key advantage that the financial planner has over the solicitor is the financial plan, which assures them of an ongoing relationship with their client(s).

This is not always so obvious for the lawyer, particularly one who is a specialist – you cannot re-engage offering a new divorce one year on after completing a previous one!

However, now that the SRA, under the Firm Code of Conduct, expects processes to be adopted at firm level it is a perfect time to use CRM systems to highlight and refer clients within the practice either at the time or down the line.

Using your ‘back office’ in a proactive fashion, far from depersonalising the relationship between the firm and the customer, can enhance it. Using technology to remember a customer on their birthday is an easy way to retain ongoing contact and it is this that changes a customer into a client. I noted that my solicitors recently proactively asked me about other services I might require when I was moving to a new house. I made a note on the questionnaire requesting that they contact me about mine and my wife’s wills in 3-months, which they did. I have little doubt that my factfind was uploaded onto the CRM and that the reminder was automatically generated.

However, the approach to us, consequently, was prompt and personal. What followed was a Zoom meeting and then a faceto-face meeting to sign the finalised wills.

The result quite simply is that having used multiple solicitor firms, a different one for each house move over the years I now consider this firm, to be ‘our solicitors’. They took an interest, beyond the initial matter, in a professional way, noted our needs and requests on their CRM, re-contacted us having been prompted by technology, used video to chat face-to-face and concluded the business in a socially distanced yet personal fashion.

In this arena there is much to learn from the professional financial planning firms you work with and I am sure they and you will be glad if you reach out. ■

Your search for the right financial planning partner starts here.

Visit sifa-directory.info/aug21 for more information.

The Bill of Middlesex | 25

EQUALITY, DIVERSITY & INCLUSION

A decade without review: Inequality in the legal aid system 72% of Legal Aid Clients are from BAME Backgrounds

T

he legal aid system has been decimated over the past 10 years. And, the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in 2013 meant vast swathes of people lost access to legal aid. The legal aid system needs urgent reassessment and reform. Otherwise, as new research from specialist lawyers Bolt Burdon Kemp makes clear, it will be the most vulnerable and disadvantaged groups in society that’ll be the hardest hit.

The most deprived areas of the UK need the most legal aid In 1949, 80% of British people had access to free or affordable legal help. By 2007, this had reduced to only 27%, and in 2013, austerity measures cut this even further. Who is most likely to need legal aid? It’s probably no surprise that the regions in England with the highest legal aid expenditure are also the most deprived.

Below is a table showing the English Indices of Multiple Deprivation (IMD) 2019 rank scores across regions in England (the lower the score, the more deprived the region is deemed to be), and their legal aid expenditure in 2019/20.

Region

Sum of IMD rank

■ The area has a lot of disadvantaged people who qualify for legal aid based on the stringent eligibility criteria.

The number of legal aid providers overall has fallen over the years In part due to LASPO-related legal aid cuts, the number of legal aid providers across England and Wales has fallen over the years. In 2011-12 there were 4,257 solicitor firms and not-forprofit organisations providing legal aid work. This saw a rapid drop between 2013 and 2018, down to 2,818. The latest figures show this now stands at 2,900. The full breakdown is below:

Year

Number of providers

2011-12

4,257

2012-13

4,178

2013-14

4,282

2014-15

3,783

2015-16

3,359

2016-17

2,985

Expenditure (£’000s)

2017-18

2,818 2,947 2,900

North East

21,451,474

45,008

2018-19

Yorkshire & The Humber

47,622,872

88,459

2019-20

East Midlands

47,662,971

57,915

West Midlands

50,202,889

83,443

South West

59,490,696

66,812

North West

60,694,509

87,954

East of England

68,181,747

50,505

London

73,480,048

231,784

South East

110,593,358

40,451

One of the most deprived regions in England has the highest legal aid expenditure Yorkshire and the Humber appears in the IMD rank as one of the most deprived areas in England. When compared to the other regions in England with a similar or lower IMD rank, Yorkshire and the Humber’s legal aid expenditure is the highest.

Black, Asian and minority ethnic (BAME) clients make up the majority of legal aid claimants Looking closely into the demographics of those who receive legal aid, Black, Asian and minority ethnic (BAME) groups are featured far more than white groups. The government’s legal aid client diversity data from 2012 onwards shows that this has remained the case for the last 8 years. If further cuts are to be made to legal aid funding, it’ll likely disproportionately affect these minority groups:

Year

BAME

White

2012-13

73%

27%

2013-14

73%

27%

2014-15

71%

29%

There are many explanations for high legal aid expenditure in a specific region:

2015-16

72%

28%

2016-17

73%

27%

■ The area has a lot of legal aid providers (such as law firms or not-for-profit organisations).

■ The cases in the area may be more likely to fall under the reduced scope for legal aid following LASPO. Legal aid is now only available for the following types of cases unless under exceptional circumstances: environmental law, asylum, neonatal clinical negligence, mental health law, child welfare, eviction, most judicial reviews.

2017-18

73%

27%

2018-19

73%

27%

2019-20

72%

28%

26 | The Bill of Middlesex

EQUALITY, DIVERSITY & INCLUSION

The British public don’t believe civil justice is accessible nor affordable Of course, no matter what reforms are made, if the system itself is difficult, confusing or inaccessible in other ways, the beneficial impact on the general public may still be minimal. Additional research by Bolt Burdon Kemp via a survey of 2,000 adults across England, Wales, Scotland and Northern Ireland found: ■ 46% say they don’t understand the legal system or how they can get legal support.

■ 51% say there are too many barriers to legal aid funding. ■

UK’s recovery plans must address gender inequality as four out of five women unaware of green job opportunities, PwC report finds

G

ender equality must be at the heart of the UK’s green and fair recovery, according to a new PwC report that underlines the extent to which women’s career progression and opportunities continue to be disproportionately hampered by the pandemic.

Based on a survey of 4,000 people in the UK, the research outlines how women are more likely than men to feel the pandemic has damaged their career prospects, as well as highlighting a lack of awareness in relation to the job opportunities presented by the growing green economy.

South East feels more financially strapped In the South East, women indicated that the three factors which would most improve their quality of life were improved financial stability, better access to healthcare and the opportunity to have a healthy work/life balance.

Those surveyed in the South East reported the most dissatisfaction with their financial situation than any other region in the UK, with just over a third (36%) saying they were financially comfortable compared to a national average of over 43%. They also indicated that the level of reward on offer was the most important factor when considering an employer (55%), along with flexible working opportunities (50%) and focus on the wellbeing of staff (47%).

Moving forward as a nation This report sets out five recommendations that require close collaboration among employers and Government. These include: ■ Gender equality should be a specific focus within green economy plans – 63% of survey respondents supported investment in green jobs but just one fifth (21%) of women say they have the skills they need to work in a green job, compared to nearly one third (31%) of men. More than half (68%) of women say they lacked skills for a green job.

■ Legislative measures to support women in work – nearly half of the people surveyed (47%) support targeted careers support for women to access traditional male-dominated

industries with 39% calling for more affordable childcare and improved parental leave ■ Embedding equal opportunities in hybrid working models – three quarters of women want more flexibility on working hours from their employer and greater support on returning from maternity leave ■ Measures to boost the confidence of women who are out of work – Nearly one in four (38%) unemployed women say the pandemic has worsened their access to employment opportunities compared to 23% of unemployed men. One third (32%) of unemployed women say a lack of confidence is the primary barrier for returning to work ■ Greater investment in careers advice services at school – only one in four (27%) women say the careers advice they received at school helped inform their career decisions Rachel Taylor, Government Leadership Partner at PwC, said: “The pandemic has exposed and exacerbated what were already deep-rooted gender inequalities in the labour market.

There is clearly a lack of confidence and opportunities for young women starting out on their careers and the challenges faced by working mothers as well as the mental and physical health burden they’re under.

“As we look to the future, we must take the opportunity to address these inequalities which should be front of mind when planning the recovery. With the continuing momentum of the green revolution and the resulting emergence of new industries, policy-makers and businesses must work side-by-side in bringing about a level playing field which will allow women to play a leading role in shaping the future.” ■

The Bill of Middlesex | 27

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Time to look at the “big picture” DISCOVERING THE EMOTIONAL BENEFITS OF FINANCIAL ADVICE No two individuals share the same goals or ambitions. Each person is unique, with their own needs, targets and budgets.

So when it comes to managing your money, building wealth, securing your future and, above all else, drawing up an effective plan for fulfilling your investment objectives, professional financial advice should be tailored to your unique specific needs.

FEELING LESS ANXIOUS Having access to financial advice is strongly linked to feeling more secure and less anxious about money. According to the survey, around 3 in 5 people who have received financial advice report that they feel financially more secure and stable, compared with under half of those who have not received any advice.

Only 1 in 3 people who have received financial advice report feeling anxious about their household finances, compared with over 40% of those who haven’t.

FEELING MORE CONFIDENT One of the key practical benefits of financial advice is that it gives you access to expertise on topics that are complex.

This provides you with more confidence and increased peace of mind. People who have received financial advice report feeling three times more confident about their understanding of financial matters and products than those who haven’t.

For example, areas that some people find confusing concern retirement planning and understanding their life insurance and critical illness options. Among those who have not received advice, around 1 in 4 people say they would not know where to start when it comes to the different options available to them.

Among those who received advice, that number is fewer than 1 in 12.

FEELING ABLE TO COPE IN A CRISIS The COVID-19 pandemic has left many people feeling less stable in their financial situation. 35% of those who have not received financial advice report feeling anxious about their finances, while 65% see the value in being more prepared for unpredictable events in life.

Financial advice helps you prepare, plan and navigate any future shocks or crisis. And while you can experience the benefits of advice after just one meeting, it’s essential to receive ongoing advice over the long term as your situation and life goals change. This means your adviser gets to know you and 28 | The Bill of Middlesex

Steven Vallery your background, and can help you adjust to whatever life has in store. Those people who have an ongoing relationship and receive regular financial advice are twice as likely to report feeling in control of their finances as people who do not. ■

Steven Vallery

Managing Director S4 Financial Limited hello@s4financial.co.uk

ARTICLE

How important is digital connectivity? VERY! T

he lockdowns have certainly highlighted the utter reliance our profession now places on the internet, computers and smart devices – remote working being on the up and connectivity being key. Not only for staff being able to work from home and keep clients up to date and maintain caseloads but also for inter-business relationships i.e. with search providers, with the courts, with the councils.

It is clear that the legal field is a diverse ecosystem of multiple professions all of whom operate independently but with a large co-dependence on a variety of other systems.

Unlike in some arenas many areas of the legal profession are not connected by a universal digital network.

In conveyancing the lack of digital connectivity in property transactions can create challenges and administrative work for the conveyancers that hinders efficiency and productivity.

Conversely it is possible to ‘over-do’ the digital updates such that lawyers feel that they spend over half their time just updating case management systems or online portals instead of actually being able to get on with the work at hand.

The importance of digital connectivity has never been more emphasised than over the last 18 months with hybrid working environments becoming common place and firms, clients and other professionals becoming more physically disconnected than ever before. This accentuates the need for effective collaboration, communication and digital connection.

There are of course a variety of factors that need to be considered as hundreds of pieces of data do not give you a single source of truth unless the data collated is real time which requires secure connectivity and a two-way street. It matters who sees the data at the source and en-route to its destination, the data must be safe and unalterable.

Things to think about: Efficiency – streamlining operations and creating efficiency is a goal of every law firm. A practice management system that operates in real time and without creating a string of administrative tasks for everyone is vital.

Connectivity, Visibility & Accuracy – connecting platforms so that all data can be collated in one location and visible to those within the transaction that need to see it. This does not mean making all data available to everyone. Synchronising data with other parties and ensuring that the information is accurate is key.

Communication & Satisfaction – digital services are what is anticipated by the majority of a law firm client base in this day and age, regular communication, understanding of where a transaction is and what comes next and the likely timescales and in particular costs that may be involved. The ability for the client to feedback to you on their experience.

Case / Practice Management Software is expensive and should be regarded as a ‘living’ expense within a law firm, ongoing upgrading, maintenance and continual review should be undertaken to survive within this new digital age. ■

Mo Aldridge

Solicitor Jasper Vincent Solicitors Source material taken from Inside Conveyancing

The Bill of Middlesex | 29

BOOK REVIEW

Simple Contract Law

Articles of Association

Stripping English Law of Complexity

Guidance and Precedents

I

n his new book, WatsonGandy has bravely done a complete about-turn on traditional dusty textbooks, writing an illustrated guide to English contract law that is fun to read, entertaining and succinct.

Synopsis of Simple Contract Law: A brief introduction to English Contract Law:

This book provides an essential introduction to English contract law. Written by practising barrister and law professor, Mark WatsonGandy, whose infectious enthusiasm for the subject permeates the text, the book simply explains all the core concepts and leading cases and what the most common terms and conditions actually do. Whether you are a law student, businessman or an international lawyer, you will find “Simple Contract Law” to be an easy-to-read, concise, and informative first guide into the subject. Enlivened by the colourful back stories to the case law and with witty illustrations by Gordon Collett, this book is a welcome antidote to stale traditional contract law textbooks.

“People don’t realise quite how important English contract law is for us all. English contract law has long been the preferred choice of law for international contracts – often even where the parties or transaction has no connection to the UK. The UK legal services industry is worth £60 billion to the UK economy; the UK legal services market is the largest in Europe and second only globally to the USA. Three quarters of those using London’s commercial courts during litigation come from outside of the UK” explains the author. “I wanted to write something which would cut through the complexity, to give an accessible overview of the law. A quick and easy-to-read guide like this is long overdue.”

Simple Contract Law: A brief introduction to English Contract Law is available now for £9.95 on Amazon: https://amzn.to/3kbb6Q4. ■ Professor Mark Watson-Gandy K.S.G is a practising barrister at Three Stone Chambers in Lincoln’s Inn and has appeared in high-profile cases in the UK and abroad. He is a Visiting Professor at the University of Westminster and at the University of Lorraine in France. He was made a Knight of the Order of St Gregory the Great in recognition of his work as a barrister and law professor in 2007. In 2020, he was appointed as one of the UK Ministry of Justice’s “Legal Services are Great Champions” to promote English legal services internationally.

30 | The Bill of Middlesex

A

s the author, Richard Bishop, says in his introduction, “the development of modern company law and the ability for ordinary people to incorporate a company was driven by the industrial revolution” from the 1840s.

Practitioners have all come a long way since then, care of massive statutory provisions. Today, nearly four million companies incorporated in the UK allow their constitution or company rule book to be dictated by the standard Articles of Association.

This new book from Bloomsbury Professional Law has been constructed “to aid professional advisers, directors and shareholders make better decisions about any company’s constitution.” We were most impressed with the way in which the book is structured to follow the articles logically with useful examples in a blocked format to make the points stand out.

Depending on what you might be looking for, the author reviews the following areas: the background to the articles of association, the Company Law Act 2006, business structures and their needs; reviews of the case law (without too many cases cited) and the implications for amending the articles of association; a detailed analysis of the default articles of association proscribed in The Companies (Model Articles) Regulations 2008 Table A; and a practical guide to drafting articles of association, real life examples and discussions on why companies should adapt Table A to suit specific company requirements.

One splendid innovation which is becoming commonplace now is the facility to download precedents with instructions set out at the beginning of the work. There is also a licence agreement which is relatively straightforward to follow. The facility dispenses with the CD which has become obsolete for many new laptops by using the website to download what you may need for your practice. In the book, the precedents start from page 261 onwards which is approximately half-way through the book.

We are confident that solicitors and accountants are presented here with the tools they need to offer sound advice to their clients on how articles may impact on the company. The key remains with what the author calls “clever drafting” on how the constitution of a company can be amended to provide clear provisions to suit its strategic position. It will always depend on the specific needs of the client, and these needs are well catered for in this book.

And for those clients who may wish to consider changing the constitution of their own company, Richard Bishop’s book is full of practical examples. He covers the do’s and don’ts of drafting very pragmatically, and offers illustrations and full procedures for trustees, family investment and property companies providing guidelines for minority shareholders, investors, and directors.

Indeed, it is a superior work which gets the right balance between detail and the practical requirements of the client. ■

REPORT

EXPERT WITNESS INSTITUTE ONLINE CONFERENCE 2021 | FRIDAY 28th MAY

“Lawyers and Experts”: Facing the Future Together We missed you all – but see you next year in person!

L

ord Hodge, Deputy President of the Supreme Court, and the new EWI President from October 2020, gave an absorbing keynote speech at this year’s online EWI Conference, chaired throughout by Saba Naqshbandi, whom we welcome to the role.

To state the obvious (for some), it was a somewhat surreal experience this time round without the face-to-face chats and the nattering and meeting up with old colleagues: coronavirus was the unfortunate theme throughout, too. However, two speeches stood out for the 2021 Conference this year: those of Lord Hodge and Sir Martin Spencer.

Lord Hodge: The Keynote Speech Lord Hodge spoke of what the court expects of a competent expert witness reflecting on his own experience of expert witnesses, both as a judge and advocate. He described the critical role of the expert witness in the administration of justice, together with judicial expectation. His lordship also shared thoughts on the impact of the pandemic on the courts saying that the title of the conference, ‘Lawyers and Experts: Facing the Future together’, “felt particularly apt”.

Hodge set out what he felt the court expects of a competent expert witness, and we have highlighted some of these points: ■ Independence and Impartiality. While this might seem obvious, he felt it was concerning that in a 2019 survey 25% of expert witnesses had felt pressurized to change their report in a way that damaged their impartiality, and 41% indicated that they had come across other expert witnesses they considered to be a ‘hired gun’ ■ Expert evidence must be ‘expert’, ■ In addition, an expert witness had to undertake the task of ‘being an expert’, being aware and competent in their duties to the court, ■ Continual critical examination of their own work or opinion.

■ Ownership, or, as expressed by McFarlane LJ in a 2018 speech in one word: ‘Clarity’. Both clarity of thought and clarity of expression or presentation of the evidence will assist the judge greatly. Hodge stressed that it was “imperative that expert witnesses take full responsibility throughout the process of preparation and presentation for his or her opinion evidence”.

Although some may not agree, Hodge observed that “not all consequences of the pandemic were bad”. The court’s operations during the pandemic were, from the words of the Lord Burnett, that it is “the biggest pilot project the justice system has ever seen.” It was important to take time to reflect on what had worked well and how this could be harnessed more broadly to improve the overall function of our system of justice, concluded Lord Hodge.

“The task of transforming our justice system”, he continued, “required the input of all actors in the court system”. He repeated that we “have to face the future together”, so this conference presented an opportunity “to enhance the contribution of expert witnesses and those lawyers who work with them in support of that aim”.

Sir Martin Spencer It is always a pleasure to hear from the EWI Chair, Martin Spencer. Sage advice as always, and he offered these words concluding the conference: “Since our last conference, we have worked through two further periods of lockdown from the Covid19 pandemic, and we have all continued to adapt to new working practices”. “But”, he continued, “as social distancing measures ease, even the Lord Chief Justice has said that ‘remote and hybrid hearings will still play their part in managing footfall in courtrooms and public areas.’ We suppose so, but some return to normality is to be yearned for in 2022.

So, this year’s conference theme is, says Martin, “very relevant in considering how both Lawyers and Experts can learn from each other and embrace many of the changes as we move forward”.

Speaking of the panel discussions and breakout sessions, he said that “this year we have brought together a formidable team of speakers, knowledgeable and influential in their fields, with a huge breadth of experience”. It should not go unsaid that every recent annual conference we have attended broadens the mind!

A virtual “au revoir” until 2022 and let us hope we can all meet up together in person once more to enhance the panel and breakout sessions! ■

“Judges, lawyers and experts have to face the future together”, said his lordship, reflecting on this theme and the dramatic impact of the COVID-19 pandemic on the courts. “I am very much aware that life had not been easy for expert witnesses during the pandemic both in terms of carrying out physical site visits or examinations and in financial impact, be that through postponed trials, or delays in payment”. Sentiments felt by all of us!

The Bill of Middlesex | 31

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32 | The Bill of Middlesex

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34 | The Bill of Middlesex