The City of Westminster and Holborn Law Society
REPORT The
November 2017
NATIONAL CONFERENCE OF LOCAL LAW SOCIETIES 9th – 10th NOVEMBER 2017 THE 50th CONGRESS OF THE FBE 9th – 11th NOVEMBER 2017
Inside this issue:
■ Anti-Money Laundering ■ Property ■ Wills and Probate ■ Climate Change Justice
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ADVERTISING AND FEATURES EDITOR Anna Woodhams DESIGN AND PRODUCTION MANAGER John Barry ACCOUNTS DIRECTOR Joanne Casey MEDIA NO. 1502 NOVEMBER 2017 © Benham Publishing Ltd. 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 Media. 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.
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The City of Westminster and Holborn Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age, Disability or Sexual Orientation. DISCLAIMER 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.
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COVER INFORMATION
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Summer
13th April 2018
Autumn
13th July 2018
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THE PRESIDENT’S COLUMN LOCAL ISSUES NATIONAL CONFERENCE OF LAW SOCIETIES THE EUROPEAN BARS FEDERATION FBE NEWS WINE COLUMN ANTI MONEY LAUNDERING FINANCE PROPERTY WILLS AND PROBATE MEDIATION FORENSICS CONVEYANCING
President:
Hon Treasurer:
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Administrator:
Nicholas Le Riche NicholasLERICHE@bdb-law.co.uk 020 7783 3560 Bruce Clarke bruce.clarke@lbmw.com 020 7222 5381 Ivan Ho ih@hunters-solicitors.co.uk 020 7412 0050 Susie Hust, 1 The Sanctuary, London SW1P 3JT admin@cwhls.org.uk 020 7960 7115
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Introduction
THE PRESIDENT’S COLUMN It’s impossible to think that I’m now writing my last report as COWHLS’ President!
The last 12 months have simply flown past. It has been a privilege to serve as the Society’s President and thank you for all your support during my term. I am very pleased to say that the Legal Charities’ Garden Party in July, in Middle Temple Gardens, has raised more money than ever before for the excellent good causes that it supports. We’re already looking forward to next year which will see the Garden Party’s 50th Anniversary and fittingly it will be back at Gray's Inn Square. Preparations are well under way to ensure that it will be bigger and better than ever. My final few weeks in office will be busy helping with preparations for the National Conference of Local Law Societies which COWHLS is hosting on the 9th and 10th November at the Grange Hotel in St Paul’s. Tickets for the Conference and the gala dinner, which COWHLS will be hosting with the Federation of
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European Bar Associations, are still available and can be purchased from the Event Brite website (www.eventbrite.co.uk/e/national-local-law-societiesconference-2017-tickets-31322979876). Hope to see you there!
NICHOLAS LE RICHE PRESIDENT
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Local Issues
Supporting Solicitors
LAW SOCIETY COUNCIL MEETING SUMMARY: 14 September 2017 Council report Council met for the first meeting of the new 2017-18 'season', with a full agenda, led by Joe Egan as President. Joe took the opportunity to welcome 16 new members to Council. You can find the full list of Council members here: http://www.lawsociety.org.uk/about-us/our-council/councilconstituencies/.
Changes to governance for 2018 As noted in July’s update, the agreed changes to Law Society governance are moving towards implementation in early 2018, and further work has been going on to agree the nomenclature for the new structure, including that the ‘main board’ should be known simply as the Board; and to agree the composition and terms of reference of the Board’s two supporting committees (the Policy and Regulation Committee and the Membership and Operations Committee). The role of Board Chair is now being advertised. Work is also continuing on the shape and composition of Council itself with a view to bringing forward proposals later this year. The specialist committees who bring their expert advice and perspective to the policy work of the society will report to the policy and regulation board. Work is also under way by the Council Membership Committee to look at the representativeness of Council, and recommendations will come to Council in due course.
Law Society - culture and business planning Following discussions at Council in July, there were further discussions at the September meeting, focusing on the development of a common understanding about why culture is important and how our behaviour impacts on shaping our culture, and on the development of a culture code for the organisation building on the pride and passion of Council, boards, members, and staff. The Society is also working on the business planning process, the outputs from which will come formally to Council in October, focused on the objectives of promoting the profession, attaining influence and impact, developing the membership offer, and securing an efficient and effective business.
Brexit action Council heard reports of the hard work the Society has been doing to help government and promote the interests of the profession and the public as negotiations continue. The Society has five key priorities: continued mutual access for solicitors as between the UK and the EU; continued mutual recognition and enforcement of judgments; continued collaboration in policing, security and criminal justice; the maintenance of legal certainty throughout the withdrawal process; and the continued effective promotion of England and Wales as the jurisdiction of choice.
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The government published its paper on civil justice co-operation in August, and Council noted that all of the major aspects of the Society’s agenda had been adopted, including the seeking of a new cross-border civil justice agreement, the incorporation into domestic law of the Rome I and Rome II instruments on choice of law, and continuing participation in the Hague and Lugano conventions. The importance of a smooth transition was also noted.
Strategic engagement Council noted that we continue to engage with parliament and the judiciary, including delivering valedictory speeches for the outgoing Lord Chief Justice and the President of the Supreme Court. We were also approached by Lord Justice Jackson’s office to host the launch of his report on fixed recoverable costs.
Support to the profession Council noted the Society’s response to the SRA’s consultation on the solicitors’ qualifying examination highlighting the importance of ensuring that academic and work experience requirements receive proper scrutiny to ensure that standards are maintained. The Society has also published briefing for our members on the implications of the changes to the SRA Handbook. In other areas, the Society has published a quick guide to the new anti-money-laundering regulations to help members’ understanding and practice, and a new practice note designed to assist solicitors in identifying circumstances which may warrant a refusal to undertake legal aid work
Supporting the profession internationally Council noted that the Vice President, Christina Blacklaws, had chaired a round-table on the international programme on women and the law which attracted 20 women solicitors from law firms and academia. The Society has also successfully secured a UK government prosperity fund bid for a project to support members’ access to the South Korean market, and hosted a Carey Street dinner with members working in China, which was attended by Lord Keen and other distinguished guests. More broadly, the Society attended the International Bar Association investing in Africa conference, and has hosted a party of Kazakh judges as part of the Kazakhstan judicial training programme.
The National Conference of Law Societies 2017 – Foreword
FOREWORD It is with great pleasure that the City of Westminster and Holborn Law Society hosts this year’s National Conference of Local Law Societies. With significant uncertainty facing the legal profession in particular and the country more generally at the moment, we have designed a programme of speakers which considers a number of these challenges.
Staff will look at the best ways that firms can recruit and retain the best staff. From the other end of the employment life cycle, Viv Williams and Andrew Roberts of Ampersand Legal will explore the topic of succession planning and how best to manage the retirement of partners while still maintaining client relationships.
In a year that has seen stories of law firms’ IT systems being hacked on an almost weekly basis, cyber security is at the forefront of the profession’s mind at the moment and we have two presentations which cover this topic from different perspectives. Sam Thomas will look at the issue of cyber security in the context of the General Data Protection Regulation, which will come into force next year. The GDPR will make significant changes to the current data protection regime and Sam will cover the key points to note in this area. James Frost of JLT will explain the insurance cover that firms can obtain to protect themselves should they be subject to a hack and the proactive steps that can be taken to reduce IT systems being hacked in the first place. In a similar IT vein, Dan Hodges of Conscious Solutions will explain how firms can get the best out of their websites and how they are viewed from a client’s perspective.
Finally, following the introduction of Continuing Competency regime last year, Melissa Hardee of Hardee Consulting will provide an overview of how the system is working and what solicitors and firms need to be doing to ensure that they are meeting the necessary requirements. I hope that you will find these topics interesting and engaging and I look forward to meeting you during the conference.
NICHOLAS LE RICHE PRESIDENT
How law firms can best look after their staff remains a key issue and we will be joined by three speakers who will address this from start to finish. With employee turnover having the potential to significantly damage firm’s profitability, Chris Ewles of Law
THE NATIONAL CONFERENCE OF LOCAL LAW SOCIETIES 2017 PROGRAMME Time
Event
9.00am
Registration
10.00am
Session 1: Your Website, Your Clients’ Journey
9.30am
10.45am 11.30am 11.45am
12.30pm 1.15pm 2.15pm 3.00pm 3.45pm 4.00pm 4.40pm 5.00pm
Speaker
Introduction & welcome
Nick Le Riche and Joe Egan
Session 2: Environmental Reports and the Current Pressures on the Modern Conveyancer
Geoff Offen
Coffee
Session 3 : Cyber Security, GDPR and Data Sovereignty Session 4 : The succession crisis and how to solve it Lunch
Session 5 : Cyber Risks – Insurance Solutions
Session 6 : Continuing Competence & Training Tea
Session 7 : How to recruit & retain the best talent Session 8 : The support we provide Conference closes
Dan Hodges
Sam Thomas
Viv Williams & Andrew Roberts James Frost - JLT Melissa Hardee Chris Ewles
Tim Martin & Elizabeth Rimmer
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The National Conference of Law Societies 2017 – Speakers
VIV WILLIAMS (Managing Director) Viv Williams is a leading consultant to law firms on the topics of strategy, management, practice, development and marketing. Viv’s experience as a Managing Director of two floated plc companies adds a new dimension to law firms. He has the experience necessary to provide an invaluable practical management insight that applies to all professional firms.He is a specialist in strategy, merger and acquisition and “lean management” theory helping law firms to evolve. He provides the vision and inspiration for law firms to become more corporate. By applying corporate governance to a modern law firm Viv helps them to improve their management systems and increase profitability.
Viv is involved with several businesses serving the legal profession as Chairman of Ochresoft Technologies providing specialist solutions for conveyancing and private client and Director of Ampersand which provides merger and acquisition solutions for the legal profession. Viv has written two books on law firm management and is regularly interviewed by the Law Society Gazette on a host of topics; he has a monthly column in the Solicitors Journal. Viv is an accomplished public speaker and has presented numerous seminars and conferences and is a key note speaker at LegalEx.
ANDREW ROBERTS (Managing Director) Andrew is Managing Director of SSG Legal with particular responsibility for our Merger and Executive Search practices. Andrew has nearly two decades experience working as a headhunter within the legal market and in this time he has been responsible for many key lateral hires, team moves and mergers. Until 1998 Andrew was Director of Private Practice at Longbridge plc, the London based AIM-listed legal search consultancy. He then became a Partner at the UK’s largest privately owned financial
headhunting organisation, Alexander Mann, where he successfully opened the profitable Legal desk. He established SSG Legal in 2000. His experience of the legal search market plus his market intelligence and contact network enable SSG Legal, their clients and candidates to strategically analyse future threats and opportunities in the ever changing legal market.
DAN HODGES (Head of Account Management at Conscious Solutions.) Dan Hodges is Head of Account Management at Conscious Solutions. With over 14 years experience in the legal sector Dan has a passion for helping firms get more from their digital marketing.
Since joining Conscious Solutions in 2014 Dan has worked with law firms of all sizes on everything from what logo looks best to formulating and delivering full marketing strategies.
SAM THOMAS (Barrister) Sam Thomas is a Barrister at 2 Bedford Row and author of Cyber Security: Law and Practice. He is the Co-founder of CyberCounsel (www.cyber-counsel.co.uk, @CyberCounsel1) a collaboration of lawyers which represents individuals and
organisations in relation to actions arising from a data breach or cyber-attack (internal or external). Sam provides a range of representation and advice in relation to business crime, data management and regulatory law.’
ELIZABETH RIMMER (CEO Lawcare) Elizabeth has been managing and developing charities in the mental health sector for over 15 years. She joined LawCare in September 2014 from the Institute of Group Analysis, a membership and training organisation for group psychotherapists. Before that she was Executive Director of Alzheimer’s Disease International, a worldwide federation of Alzheimer Associations. Elizabeth started her working life as a solicitor specialising in clinical negligence, practicing at Leigh Day.
LawCare, a registered charity, supports and promotes good mental health and wellbeing throughout the legal community in the UK and Ireland. LawCare provides emotional support and information about the common mental health issues that can affect lawyers and works to raise awareness about why mental health matters. www.lawcare.org.uk
Christl Hughes (Chair SBA) Christl Hughes, a former High St practitioner is the sixth female Chair of SBA and the first woman to serve as Chair for more than one year. Since being elected Chair in 2015 she has continued the process of modernising the Charity commenced by her
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predecessor. She was President of Leicestershire Law Society in 2005/6, Chairwoman of the National Association of Women Solicitors in 2010/11 and currently on The Law Society Council Membership Committee.
The National Conference of Law Societies 2017 – Speakers
GEOFF. OFFEN (Future Climate Info) Originally Assistant Chief Surveyor at British Coal, Geoff has 36 years’ experience innovating information publishing for conveyancing and re-engineering processes to make things better, faster and cheaper.
1995, which defined a scheme of identification and compulsory remedial action for contaminated land. In 1999 Geoff launched the first ‘Envirosearch’, which was the benchmark for all of the other environmental searches until 2014.
In 1989, Geoff was the principle adviser to the Law Society Coal Mining Sub-Committee on creating the first national standard coal mining search CON29M.
In 2004 Geoff moved into Europe, creating the first national standard environmental reports for The Netherlands, strongly supported and welcomed by the Dutch government. In 2014, after several years in Germany developing better information products for valuers acting for the mortgage lending banks, Geoff returned to the UK to set up Future Climate Info to bring environmental searches there more up to date. He has since significantly raised the bar, setting new standards and the new benchmark for search products much more suited to the modern conveyancing solicitor.
In 1993, at the Coal Authority, Geoff completed the standardization and computerisation of coal mining searches, creating the first national Mining Reports and Subsidence Damage System ‘MRDS’ and going on to win a national award for building one of the first ever GIS property location systems. In 1998 Geoff moved into the private sector to develop environmental searches because of the insertion of Part 2A to the Environmental Protection Action 1990 by the Environment Act
JAMES FROST (JLT) James Frost has been an insurance broker for 30 years. He is a specialist in arranging the Professional Indemnity Insurance for solicitors. He manages insurance programmes for a portfolio of mid-tier regional firms and top 100 firms. Prior to joining JLT,
James spent 15 years at AON in the professions division where he was the national subject matter expert for Solicitors Professional Indemnity. James is a regular speaker at regional Law Society seminars.
ROOMS FOR HIRE AT THE INN Boswell Room The Boswell is a very attractively presented room overlooking the Temple Church and Courtyard. 2017 Daily Rate ranging from £145.00 Finished in a contemporary style, it possesses a double bed with a full, travertine bathroom. Fresh linen and towels are provided, the mini-fridge is stocked with bottled water, and Molton Brown products adorn the bathroom. Amenities include: flat screen TV with a digital Free View box, radio alarm, iron and built in ironing board, hairdryer, digital safe, vanity dressing table, tea and coffee making facilities and a cereal bar.
Chaucer Room For a more romantically inspired room, look no further than the Chaucer. 2017 Daily Rate ranging from £145.00 Overlooking Hare Court, it is divinely comfortable and the double four poster bed and faux fireplace is the central focus of this room. The modern travertine bathroom is adorned with double sinks and Molton Brown amenities. Fresh linen and towels are provided, and the mini-fridge is stocked with bottled water. Additional amenities include: flat screen TV with a digital Free View box, radio alarm, iron and built in ironing board, hairdryer, digital safe, vanity dressing table, tea and coffee making facilities and a cereal bar. Both rooms are located in number 3 Dr Johnsons building at the Inner Temple. For bookings, please contact Lorna Pay on: lpay@innertemple.org.uk 02077978179 The Report
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The National Conference of Law Societies 2017 – Sponsors
LawCare is the charity that supports and promotes good mental health and wellbeing in the legal community throughout the UK and Ireland. Our key service is a free, independent and confidential Helpline, and our trained staff and volunteers have experience of working in the legal sector. We offer empathetic support for work, emotional, health and financial problems, and we signpost callers to specialist support where appropriate. Our Helpline is available 365 days a year on 0800 279 6888, and a wealth of information, including helpful resources and factsheets, is available to download from our website www.lawcare.org.uk
Fraser and Fraser is one of the UK’s largest firms of professional genealogists and international probate researchers, and a Corporate Member of the Association of Probate Researchers. We provide specialist research and support services to the legal profession by tracing missing beneficiaries for unclaimed estates worldwide. With over 90 years of experience, we have built up a network of European offices and developed partnerships and working relationships with leading genealogists around the world. To find out how we can help call 020 7832 1430, email legal@fraserandfraser.co.uk or visit www.fraserandfraser.co.uk.
Fronteo We are the UK's leading provider of website design & digital marketing services to law firms. After working with us, clients tell us they :• get positive comments from clients on rebranding & the design of their new website • generate more leads through increased visibility in Google via PPC and SEO • generate more visits to their site, and increased instructions, through improved used of social media. • cross sell more effectively through email marketing Through our Symphony Legal division we also provide consulting services on strategy, M&A, compliance, HR, intranets, CRM & business development.
The first T.M.Lewin opened in Jermyn Street in 1898. This bustling London Street soon became a magnet for the world’s finest tailors and Mr. Thomas Mayes Lewin was among the industry’s original innovators. A hundred years ago, shirts didn’t always have buttons all the way down the front. T.M.Lewin’s ‘coat-shirts’ were not only pioneering, they are a prototype of the modern shirt worn today. Fashions may have changed since 1898 but excellent craftsmanship, quality, service and value remain the driving force behind the T.M.Lewin brand. We continue to use many of the same traditional manufacturing techniques devised all those years ago and over a century later, the quality of our business wear remains among the best in the world. T.M.Lewin now has just under 100 stores in the UK, with new stores opening in countries across the rest of the world, including Europe, Singapore and Australia.
Exclusively for law firms, Legal Network is a free to join referral and support service which assists members by offering expert legal advice to their clients in areas they do not practice in. Over the last nine years, our network has helped hundreds of law firms to retain their clients and increase their revenue due to our non-poaching commitment and fee sharing arrangements. Other benefits of the network include a seminar and training programme, free enquiry line, access to our buying group, financial planning advice and referral opportunities to your firm. Contact us on legalnetwork@hughjames.com or 029 2066 0559 to find out more.
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FRONTEO (formerly UBIC North America, Evolve Discovery, TechLaw Solutions) is a publicly traded global technology and services company specializing in Big Data, Artificial Intelligence, Information Governance, Managed Review, and Litigation Consulting for the eDiscovery market. As a RelativityOne Certified Partner and a Relativity Best in Service Orange Partner, FRONTEO serves AM Law 200 law firms, Fortune 500 companies and government agencies across all phases of the e-Discovery process including collections, processing, forensic investigation, hosted review, and production. FRONTEO has committed the expertise and resources to offer RelativityOne to users providing ongoing managed services to customers out of the public cloud. FRONTEO provides robust English language services along with advanced specialization in Chinese, Japanese and Korean (CJK) languages. Driven by FRONTEO's unique AI technology KIBIT(tm), companies are able to proactively and predictively assess fraud, data leakage and pre-crime events alongside the e-Discovery lifecycle and gain a deep understanding of their data. For more information, visit www.fronteo.com/usa.
JLT JLT’s Legal Practices Group, a leader in Professional Indemnity insurance, is one of the most experienced and largest teams in the UK, with over 40 legal sector specialists. We are valued by clients for our personal, trusted and specialist approach. Headquartered in London with 9 offices across the UK, JLT’s Legal Practices Group represents over 1,000 firms ranging from sole practitioners and firms in the high street to larger city and international practices with a global footprint. Our offering to law firms extends beyond Professional Indemnity insurance to include Cyber, Management Liability, and General Insurance as well as specialist products designed to assist clients ranging from M&A Insurance, Legal Indemnity to Litigation Funding and After The Event Legal Expenses Insurance.
Aestima Law Costs Consultants offer a comprehensive set of services. Our ethos of precision, pragmatism and timeliness is what makes us different and clients receive the best possible outcome. The team’s knowledge of law costs procedures means the uppermost recovery or saving. A combination of in-depth understanding and versatility. Each service is tailored to the specific client and case, a bespoke approach which draws upon years of experience. Our core objective is to satisfy our clients and save them time. Aestima’s focus for 2018 is the introduction of the new format bill of costs and supporting clients with regard to the same.
Conveyancing searches?
Geodesys. All you need to know. For the past 20 years, Geodesys has provided a wide range of conveyancing searches and reports to clients nationwide. Our dedicated team continue to offer our unique service, drawing on their extensive expertise and knowledge to meet all your needs while responding to evolving market requirements. The result? Wherever you are in the UK, the indispensable peace of mind offered by Geodesys together with our unique insight and unparalleled customer service are at your disposal.
Celebrating 20 years of excellence. For information call 0800 085 8050 or email customer.services@geodesys.com www.geodesys.com
The European Bars Federation – (FBE)
Founding the FBE 25 years ago The European Bars Federation/Fédération des Barreaux d’Europe (FBE) was founded in Barcelona on 23rd May 1992, as a successor to the Conférence des Grands Barreaux d’Europe, the leading bar associations of Europe.
Its official headquarters are in Strasbourg. FBE membership is open to all national and local Bars and Law societies within the Council of Europe. Today, the FBE has 250 member bars, representing approximately 800 000 lawyers, in the Council of Europe member states. The FBE holds its congresses twice a year, each time in a different European city. These meetings offer unique opportunities to discuss common problems and to share information and experiences. In a time of rapid change, our purpose is to address challenges as they arise, seeking the best solutions for our clients and our colleagues.
The founding president was Eugenio Gay Montalvo, and we are delighted to announce that Mr Gay Montalvo will be participating in the 50th Congress of the FBE in London. This is the third celebrati9on of the 25th Anniversary, having started in Barcelona in February, followed up in The Hague in June. Eugenio Gay Montalvo is a life President of the General Council of Spanish Bars, and Dean Emeritus of the Il Lustre Collegi d’ Avocats de Barcelona . Among the founders were Bristol Law Society, Birmingham Law Society and Manchester Law Society.
Greetings from the Supreme Court of the United Kingdom. “In this court and in this country we have always understood the vital contribution made by an independent legal profession, and in particular by independent advocates, to enabling access to justice, to assisting the courts to determine disputes fairly and in accordance with the law, and to maintaining the rule of law upon which we all depend. I wish you every success in your deliberations.”
The Rt Hon the Baroness Hale of Richmond. President of the Supreme Court of England & Wales.
THE EUROPEAN BARS FEDERATION 2017 PROGRAMME 1. The Paris Agreement and European measures to protect the environment. Moderator: Dominique Attias, Vice Batonniere, Paris Bar Speakers: Corinne Lepage, Former MEP and French Minister for the Environment; Juan Antonio Loste, President of the Environmental Law Committee, Barcelona Bar; Risteard de Paor, White & Case, Paris
2. Legal and social responsibility for the environment Moderator: Gita Parihar, past Head of Legal, Friends of the Earth Speakers: Katarzyna Ludwichowska from Gdansk; Dr Roda Verheyen, from Hamburg; James Thornton from London NGO ClientEarth. 12.45 to 1.45 Lunch 14.00 to 16.00 Panel Sessions
3. Human rights of indigenous people: environmental issues Moderator: Sir Henry Brooke, retired Lord Justice of Appeal. Speakers: Olga Hancock from Simmons & Simmons, London; Anouska Perram, Lawyer at Forest Peoples, London; Claire McGregor, from 1, Crown Office Row Chambers, London.
4. Advising on the UN Guiding Principles on Business and Human Rights. Moderator: Michele Lucherini, Vice President of the FBE, from Lucca. Speakers: Megan Bowman, King’s College, London; Richard Harvey from Garden Court Chambers, London; Tim Smith, Chair of the Law Society Planning & Environmental Law Committee. 16.00 to 16.30 Summary and conclusions 12
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The European Bars Federation – (FBE)
The environment matters.
City of Westminster & Holborn Law Society has remembered the contribution of Nigel Mayhew for many years with a lecture every Autumn on planning law. Central to planning is the issue of the environment and the regard which should be had to the impact of climate change. Those of us who thought this was a specialist area which we could ignore can no longer do so. Younger members of the profession and our children and our grandchildren, will not allow us to look aside. On 3rd June I started my term as President of the European Bars Federation (FBE). I am the second CWHLS member to become President of the organisation. David Morgan, CWHLS International Committee member and former President of the Holborn Law Society was President of the FBE in 2002-2003, and organised an FBE Congress in London during his presidential year. We are expecting to host over 100 lawyers from all over Europe between 9 and 11th November for the FBE Congress on climate change, held at the same time as the National Conference of Local Law Societies in The Grange Hotel, St Pauls. The FBE Congress has top experts on vital topics including the Paris Agreement, now thrown into sharp perspective because of the US decision to withdraw and to hear from key players in climate litigation. Delegates will be discussing the United Nations Business and Human Rights guidelines, and what we need to know in order to advise our clients. What is it our clients need to know for example on supply lines, resilience and sustainability. Delegates will hear from the President of the Environmental Law Commission of the Barcelona Bar, Juan Antonio Loste, and from Dominique Attias, Vice-Batonniere of the Paris Bar, as well as barristers Claire McGregor, of 1, Crown Office Row and Richard Harvey of Garden Court Chambers, who have international reputations on climate change advice and litigation. The rain forest seems a million miles away, and yet what happens there affects us all. There will be a panel of experts who will examine the situation of indigenous people including experts who assist communities with legal advice and representation pro bono. Not many colleagues know of the CSR programme at Simmons and Simmons, however the firm have a wide ranging pro bono programme in which their solicitors advise clients in need in many parts of the world. Olga Hancock, International Pro Bono Manager in the firm’s corporate responsibility programme will outline the firm’s approach. Simmons & Simmons supported the Paris Agreement in December 2015 through pro bono support for the Legal Response Initiative, which assists Least Developed Countries and NGOs in international climate change negotiations. Lawyers from the firm attended the Paris conference in December 2015 as liaison officers. Delegates will hear from another expert solicitor working for the NGO: The Forest Peoples. Anouska Perram will contribute insights from the work she does in advising communities overseas. She provides advice, representation and advocacy, research, publications, community consultations and training, with a focus on human rights issues (including particularly land rights) affecting indigenous and forest-based communities. She works particularly in Cameroon, as well as on several other countries including Central African Republic and Colombia, with a substantial proportion of long-term community-level field work with affected communities. The NGO assists in consultations where proposed projects may affect their land rights. Followers of Sir Henry Brooke’s legal blog will be delighted to hear that he will moderate the panel session on the rights of indigenous people where the natural environment is at risk. The first weeks of my presidency have been a whirlwind with events in Bilbao, Exeter, The Hague, Warsaw and Poznan, Poland. I have been asked to speak on a variety of topics including BREXIT, the top of the list. Our continental colleagues are keen to maintain the reciprocity which exists at present on practice rights. At
present our clients benefit from provisions under EU law, particularly in family law and commercial law, whereby judgements are upheld across jurisdictions, contracts clauses are effective and divorce and children’s law are facilitated. We all benefit from the cooperation we have at present on security matters, criminal law, the European Arrest Warrant and extradition. I was heartened by the enthusiasm of Polish lawyers who were grateful for the stand the FBE General Assembly took in expressing concern at the lack of independence of judges and lawyers because of actions of the Polish government in the administration of justice. Polish judges waiting to be sworn in under the Constitution have been ignored, and there has been a failure to proceed with judicial appointments leaving vacancies, interference with the prosecution and failure to maintain the independence of the judiciary from political interference.
Professor Sara Chandler QC (Hon), President of the European Bars Federation and Past President of CWHLS.
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The European Bars Federation – (FBE)
About the IBA The International Bar Association, established in 1947, is the world's leading organisation of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. It has a membership of more than 80,000 individual lawyers and more than 190 bar associations and law societies spanning over 170 countries. It has considerable expertise in providing assistance to the global legal community. IBA membership: • broadens your global network of professional contacts – gain access to the world's largest international network of over 80,000 lawyers • offers big savings on world-class conferences – with member discounts on 50+ specialist conferences worldwide each year. The 2018 Annual Conference will take place in Rome on 7–12 October 2018. To receive further information in early 2018
register your interest at www.ibanet.org/Form/IBA2018Rome.aspx • improves IBA members’ ability to serve the needs of respective clients • helps you grow your international business – the IBA members directory provides you with a cost-effective platform to strengthen business contacts • energises your practice with opportunities to debate the key issues in the profession with experts and peers For more information on how to join, please visit www.ibanet.org/join.
Indigenous rights Since I became a patron of Peace Brigades International UK ten years ago, I have been privileged to meet a succession of very brave men and women on their visits to London.
pic: Berta Cáceres
They are the human rights lawyers and community activists who are fighting for the rights of local communities whose homes, welfare and entire way of life are threatened by major infrastructure developments for which nothing resembling an adequate environmental impact assessment has been carried out. Whether the threats come from mining projects in virgin forest areas, from wind-farms or hydro-electrical schemes, these battles have depressingly similar features. A project proposal that doesn’t take sufficient account of indigenous and environmental rights; corruption in high places; a lack of confidence in local courts; and unimaginable threats against those brave enough to offer significant resistance. One story tells it all: “In 2015 Berta Cáceres, a member of the local Lenca indigenous group, was awarded the Goldman Environmental Prize last year for her
opposition to a massive hydropower project in Honduras. Two years earlier a colleague had been shot dead by a military officer during one of the protests: several others were also killed last year. Berta had recently moved home to a new house in La Esperanza on safety grounds. She knew all about the risks she ran, but she felt obliged to fight on: ‘We must undertake the struggle in all parts of the world… because we have no other spare or replacement planet’, she said. She was often warned that she would be raped or murdered if she continued her campaigns. She battled on regardless. Last Thursday she was killed. Gunmen entered her home at about 1 am and shot her dead.” Battling for the rights of indigenous people often carries with it a very heavy human cost.
Henry Brooke
The Legal Sustainability Alliance (LSA) The Legal Sustainability Alliance (LSA) congratulates the FBE on the 50th Congress to be held in your 25th Anniversary Year and is delighted you have chosen sustainability and climate change justice as your central theme. As we celebrate our 10th Anniversary the LSA continues to encourage law firms of all sizes across the UK to reaffirm their commitment to reducing their climate impact through 14
The Report
measuring, managing and reducing their carbon emissions. As a collaborative, free network the LSA offers advice, support and practical tools to help the legal sector become more sustainable. We are sure the FBE 50th Congress will do a great deal to further the understanding of climate change across the profession.
The European Bars Federation – (FBE)
The European Bars Federation (FBE) Celebrates its 25th Anniversary Eugenio Gay Montalvo
Lady Hale
Prof. Sara Chandler
City of Westminster & Holborn Law Society Past President Sara Chandler now President of the European Bars Federation (FBE) congratulates the founders and members of the FBE on the 25th Anniversary. During 25 years the FBE has brought together the Deans, Presidents and Bar Leaders of the 250 member bar associations of the Council of Europe states. At each congress, held twice a year the members raise their concerns and share burning issues with their colleagues. Vital support is given to members in states where lawyers are detained and imprisoned, or their practising licences are withdrawn because their clients are not popular with the government, and where lawyers are stigmatised because of their clients, and where legal professional privilege is flouted, even to the extent of raiding offices to remove client files. In each congress there is a scientific programme with themes that have ranged from cross border criminal practice, examining trading carousels, scams across borders,
we have investigated access to justice in our members’ jurisdictions, professional ethics, organisation of our bars, technology at the service of justice, and many more issues which our members share. Not only Presidents and Deans participate, but also council members, members of international relations committees, and any member of the 250 member bars of the FBE. This means that the FBE working commissions hosted by leading bar associations undertake project work at the service of the legal profession and our clients all over Europe. The FBE welcomes new members and as President this year I am reaching out to small local law societies and bar associations to encourage them to join and to experience the FBE welcome. www.fbe.org
Professor Sara Chandler QC (Hon)
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The European Bars Federation – (FBE) – Speakers
DOMINQUE ATTIAS Vice President of the Paris Bar, having been admitted in 1981, her practice focusses on Human Rights Laws and the defence of the rights of children and combatting violence against women. She is a guest lecturer at the Ecole Nationale d’Administration, the Ecole Nationale de la Magistrature, the Ecole de formacion Professionelle
des Brreaux de la Cour d’Appel de Paris and the Ecole de Formacion des Avocats Centre Sud. She is the co-founder and Board Member of Femmes et Droit. In September 2011 Ms Attias was named Chevalier de la Legion d’Honneur. She is Vice President of the Mediterranean Commission of the FBE.
CORINNE LEPAGE Corinne Lepage is a lawyer, Member of the European Parliament and vice-chair of the parliament’s Committee on Environment, Public Health and Food Safety. She is a former French Environment Minister and is the founder and President since 1996 of the Citizenship, Action, Participation for the 21st Century Party (CAP21). She is also the founding member of the CRII-VIE, the Association for the Study
of the Impact of Genetic Techniques upon the Living. In 1978, she founded, along with her husband, the first French law firm specializing in environmental rights, Huglo Lepage. She represented local communities damaged in the Amoco-Cadiz disaster in 1978. Corinne Lepage is a promoter of the Declaration of Humankind Rights.
NOEMI BLAZQUEZ Noemí Blázquez is a lawyer in the Barcelona office of Uría Menéndez. She joined the firm in 2000 and became a counsel in January 2011. She focuses her professional practice primarily on administrative law, environmental law, urban planning, and regulatory issues. Noemí advises companies and public entities on matters regarding the granting of permits, authorisations and administrative concessions, and represents clients at the various stages of punitive
administrative and contentious-administrative proceedings before the courts. She has advised clients on the environmental aspects of developing and financing renewable energy generation projects, climate change and liability for contaminated soil. She also advises chemical companies on the management of hazardous substances and, specifically, the implementation of industrial safety rules.
RISTEARD DE PAOR Risteard de Paor is an Associate in the International Arbitration group of White & Case LLP, Paris. He has acted in commercial, construction and investor-state arbitrations as has experience in French litigation matters and various aspects of environmental law
such as emissions trading and REACH. Risteard has a particular interest in climate change law and has written articles for journals and other publications on how the Paris Agreement can best be enforced and on the ramifications of climate change-related regulation for industry.
KATARZYNA LUDWICHOWSKA he has been an attorney-at law, since 2011 associated with Koprowski Gąsior Gierzyńska Ludwichowska Law Firm in Gdańsk, Poland. She specializes in civil law, commercial law and employment law. Additionally, she has experience in national and European environmental law. She is a Graduate of the Department of Law and Administration at the University of Gdańsk, and a scholarship holder at the University Sophia Antipolis in Nice in France;ttorney-at law and
member of the Regional Chamber of Legal Advisers in Gdańsk. She provides legal service to companies in the area of corporate and employment law, advising and preparing due diligence reports for companies and entrepreneurs. She assists in obtaining the environmental permits, and advises on the legal aspects of environmental assessment, fees for use of the environment and the penalties for overrun or violation of the terms of usage of the environment, and advises on environmental liability.
DR RODA VERHEYEN Dr. Verheyen is an environmental lawyer with many years of experience in international environmental law and policy and climate change campaigning in Europe. She has written her Ph.D. on climate change damage in international law and now works in a law firm specialized in environmental and planning law in Hamburg, Germany. Dr. Verheyen was previously a Director of the Climate Justice Programme, which she founded in 2002 with Peter Roderick.
Before registering as an attorney, she was an independent consultant for (inter alia) the GTZ (today GIZ), the Federal Environment Ministry, Friends of the Earth, Greenpeace and Germanwatch e.V., as well as a member of the German delegation to the Climate Change Convention. She is a board member of the Hamburg International Environmental Law Conference (HIELC), and regularly publishes on International and National Environmental Law topics.
JAMES THORNTON James Thornton is the founding CEO of ClientEarth. He is an environmental lawyer and social entrepreneur. A member of the bars of New York, California and the Supreme Court of the United States, and a solicitor of England and Wales, he moved from Wall Street law practice to found the Citizens’ Enforcement Project at NRDC in New York, where he brought some 80 federal lawsuits against corporations to enforce the Clean Water Act after the Reagan
Administration had stopped enforcing the law. He won these cases and embarrassed the government to start enforcing the law again. In 2007 James founded ClientEarth – Europe’s first public interest environmental law organisation. Now operating globally with its headquarters in London, it uses advocacy, litigation and research to address the greatest challenges of our time – including biodiversity loss, climate change, and toxic chemicals.
SIR HENRY BROOKE CMG Sir Henry Brooke CMG is a retired judge. He was called to the Bar in 1963, and took silk in 1981. He became a High Court judge in 1988, conducting heavy criminal and civil trials. He introduced diversity training for judges and magistrates, and spent three years as Chairman of the Law Commission. In 1996 he was appointed a Lord Justice of Appeal. In 2003 he became Vice-President of the Civil Division of the Court of Appeal and retired from the Bench three years later, on reaching his 70th birthday. After his retirement he was
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for three years Executive Vice-President of the Commonwealth Magistrates and Judges’ Association, and took an even more active role as President of the Slynn Foundation, building links with the judiciary in Eastern Europe, particularly in Ukraine and Albania. In 2008 he took part in UNEP-led discussions in Switzerland exploring ways of drafting guidelines on environmental matters for countries not parties to the Aarhus Treaty. Read Sir Henry’s blogsite at www.sirhenrybrooke.me
The European Bars Federation – (FBE) – Speakers
GITA PARIHAR Gita is a legal and policy consultant who was Head of Legal at Friends of the Earth England, Wales and Northern Ireland for 10 years, until July 2016. During this time she advised campaigners on a range of issues from international climate law and environmental rights to judicial reviews in the UK. She is an environmental rights
advocate with a history of working with communities on the ground and bringing legal cases on their behalf. Since leaving Friends of the Earth she has worked with bodies ranging from the UN to NGOs in Africa, the Pacific and the UK. She is on the Board of the UK Youth Climate Change Coalition (UKYCCC) and the Climate Justice Fund.
OLGA HANCOCK Olga Hancock leads the pro bono practice at international law firm Simmons & Simmons in 18 offices in Europe, the Middle East and Asia. The international practice has a focus on protecting vulnerable communities from land grabs. Olga also works with the Legal Response Initiative, advising Least Developed and climate vulnerable countries in the UN Climate Change negotiations, both as a legal
adviser and as a liaison officer at the UN Climate Conferences. Olga previously worked as an environmental lawyer in major law firms, local government and at the International Development Law Organisation, and has worked in the UK, Australia and Indonesia. Olga is a qualified lawyer in England & Wales and NSW, Australia, and holds a BA/ LLB (Hons) and a Master of International Studies (Hons) from the University of Sydney.
ANOUSKA PERRAM Anouska Perram is a solicitor working with Forest Peoples Programme, a UK-based human rights organisation that works with indigenous peoples, in particular in relation to their land rights. She has worked with communities and partners in Africa, Asia and South and Central America, with a particular focus on Cameroon, where she has been engaged inter alia in conducting consultations with
forest communities whose traditional rights are being affected by agro-industrial, forestry, mining or conservation activities. She has authored an analysis of integration of human rights in the voluntary partnership agreement (VPA) system implemented under the European Union’s “Forest Law Enforcement Governance and Trade” Action Plan, which focuses on improving legality in timber supply chains.
CLAIRE MCGREGOR Claire is a barrister at the Bar of England & Wales practicing principally in environmental law and human rights. She has worked on numerous group actions, including cross-border litigation on behalf of subsistence fisherfolk, farmers and indigenous communities in Africa and Latin America impacted by the extractive industries. In 2015, she acted as an independent expert in, and
made recommendations regarding, the conflict between Indigenous Maya Chortí communities in Chiquitmula, Guatemala, and local hydro-electric companies. In 2016, she provided training in Monrovia, Liberia, to the Public Interest Lawyering Initiative for West Africa (PILIWA) with regard to bringing strategic litigation in West African countries for the protection of human rights and the environment.
MICHELE LUCHERINI Michele Lucherini is 1st FBE Vice President and President of the FBE Commission Access To Justice. He qualified in December 1994 in Lucca, and practices as a lawyer in a ten-lawyer grouped office. In 1995 he became a member of AIGA - Italian Association of Young Lawyers; in 1996 he was elected President of the section of Lucca. In 2006 he was appointed Secretary of the Bar of Lucca and strongly supported the inclusion of the Bar of Lucca in the FBE. Since 2007
he has dealt with testing electronic civil process, tightening alliance with the Region of Tuscany. In 2009 he organised the International Symposium on Private International Law with the following subject: The recognition of foreign judgments - The European Enforcement - The European Decree - The Small Claims. In 2014 he coordinated the organisation of the FBE Intermediate Meeting 2014 in Lucca. Since 2015 he has been Vice President of the Bar Association of Lucca.
RICHARD HARVEY Richard J. Harvey has focused throughout his career in the U.K. and U.S. on major human rights litigation, environmental justice, criminal cases, international humanitarian law and post-conflict justice. He is a British barrister at Garden Court Chambers, in London. At Greenpeace International’s legal team in Amsterdam he works on corporate and government accountability for climate justice and advises on campaigns to reduce global warming in line with the Paris Agreement. Born in London, England he graduated from
Queens’ College, Cambridge (1970) and was admitted to the bar (1971), practising in London until he moved to New York on a human rights teaching fellowship (1980). He was admitted to the New York State bar (1982) and practised as partner in a Harlem-based human rights law firm until 2000. In the UK, between 1973-1980, and again in 2000-2009, he conducted well over 100 major criminal cases; in the US (1980-2000) his practice included major crime (federal and state courts); asylum cases and advising governments and NGOs on international human rights issues.
DR MEGAN BOWMAN Dr Megan Bowman joined King's College London in 2015 and has been appointed a Dickson Poon School of Law Rising Star. She cocreated the Climate Law and Governance hub at King's, which comprises cutting-edge research, engagement and teaching to investigate and evaluate climate-related legal and governance challenges and opportunities across different countries, cultures, and sectors. Her research focuses on intersections between commercial, financial and environmental regulation in transnational contexts with
particular emphasis on private actors. Dr Bowman consults to national governments and intergovernmental agencies on implementing the Paris Agreement; advises UK NGO’s on climaterelated investment and banking; and convenes the LLM module Corporate Actors in Sustainability Governance. She began her career as a practitioner in commercial/corporate law and environmental/planning law and is a qualified barrister and solicitor of the High Court of Australia and Supreme Court of Victoria with an LLM in International Law and a PhD in regulatory theory.
TIM SMITH Tim Smith is a solicitor at international law firm Berwin Leighton Paisner LLP. He qualified in 1994. He joined Berwin Leighton as a planning lawyer in 1996, becoming a partner in 2001. He has specialised in Planning & Environmental law for over 20 years with an emphasis on commercial and residential schemes, urban regeneration, major infrastructure projects, compulsory purchase, and contentious planning work in public inquiries and the Courts. Tim has been a member of the Law Society’s Planning &
Environmental Law Committee since 2009 and was appointed as its Chair from 1st September 2017. Tim was appointed as a First Tier Tribunal Judge (part-time) in 2013 and became a member of the Law Society’s Solicitor Judges Division. He is also a member of the Joint Tribunal of the Law Society/Bar Council and a member of the Royal Town Planning Institute’s Conduct & Discipline Panel. Finally he was a member of the JUSTICE working party which published its report on Judicial Diversity in April 2017. The Report
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The European Bars Federation – (FBE) – Sponsors
Professor Craig Barker (Dean, School of Law & Social Sciences LSBU)
Associate Professor Andy Unger (Head of the Law Division LSBU)
London South Bank University To the delegates of the Federation of European Bars 50th Congress. Welcome to London and congratulations on your 50th anniversary. Human Rights, Access to Justice and Sustainability are values and goals that we have in common and for that reason we are very happy to support your congress. Also, we have an excellent second reason to welcome and support you, Sara Chandler, QC (Honorary), your President is an old friend and Visiting Professor in Human
Rights in the School of Law & Social Sciences, London South Bank University. She particularly supports the work of our Legal Advice Clinic, where our students give free legal advice to local people supervised by legally qualified members of our teaching team. You can find out more about us and our Legal Advice Clinic on our website at http://www.lsbu.ac.uk/schools/law-and-socialsciences/subjects/law
The Dickson Poon School of Law FBE The Dickson Poon School of Law is delighted to be a sponsor of the FBE’s Congress here in London, and to welcome Congress participants to King’s College. The theme of this year’s Congress is particularly apposite, as we have a keen research interest in Climate Law and Governance. Several members of our Faculty, including Dr Megan Bowman who will be addressing the Congress, are investigating and evaluating legal and governance frameworks for climate change policy across different countries, sectors and cultures.
As a global law school drawing students, teachers and researchers from all over the world, we are committed to supporting the development of policies and practices that draw on the strengths and insights of colleagues working transnationally to secure solutions to the world’s pressing problems. We are therefore honoured to cohost these proceedings and to congratulate the FBE on this, its 50th congress. We wish it every success in its current endeavours and look forward to supporting its work in the future.
Simmons & Simmons Simmons & Simmons international pro bono strategy focuses on supporting UN Sustainable Development Goals 7 (Clean Energy) and 16 (Promoting Rule of Law). Our lawyers have provided longstanding pro bono support on climate related law and justice, in particular, through PURE Leapfrog, assisting with the development of
community energy, and also through the Legal Response Initiative, advising least developed and climate vulnerable countries in the UN Climate Change negotiations: in particular on the implementation of the Paris agreement. We are pleased to support the FBE Climate Change Conference.
The Law Society “As Chair of the national Law Society’s International Committee I extend our warm welcome to London to the European Bars Federation for its 50th Congress in its 25th year. London is my home town and I welcome you particularly to our City. I hope you enjoy all that it has to give. It is of course a matter of pride that on this important occasion your current President is a lawyer from this jurisdiction, Professor Sara Chandler QC (Hons) and indeed from a London regional law society. As the UK’s relationship with the European Union alters it is ever more important that we maintain the relationship we have as lawyers in national and regional bar associations. The change that is happening will not in any way alter the commitment we all have to
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the principles of the rule of law, human rights and access to justice. The national Law Society and regional societies in this jurisdiction strive to ensure that these founding principles, that we have as lawyers, are recognised and maintained throughout the World. To this end the Law Society works with both national and regional associations and individuals to campaign for these principles, for instance through its “Lawyers at Risk” programme we seek to ensure that lawyers are not subject to intimidation and violence. The importance of the principles of the rule of law, human rights and access to justice are central to environmental rights and climate change which will be discussed at this Congress. I look forward to meeting you, our friends, in furtherance of those discussions.” David Greene
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Insurance Some trustees rely on credit liability contingency insurance, which is readily available in the insurance markets. It provides protection should any beneficiaries make a successful claim to assets which ought to have been paid to them from the trust, had the trustees known of them, and their rightful claim. However, there may be reasons why securing such insurance is not feasible and, where insurance can be secured, the costs involved may be so high as to be prohibitive.
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14:27
Wine Column
The Difference Between Sparkling Wine and Champagne Champagne is one of the most joyous of wines - full of life and vigour; it puts a smile on your face. It is the world’s most famous sparkling wine and can only be produced in the region that bears its name. reat Champagne has a combination of freshness, delicacy, richness, and power which no other sparkling wine can quite attain. Celebrations are synonymous with popping a cork, but those in the know also enjoy Champagne with food. Most Champagnes use a blend of grape varieties: Chardonnay to add fruit and elegance, and two reds – Pinot Noir and Pinot Meunier – to provide body and backbone.
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The majority of the big Champagne houses make their wines with grapes sourced from growers throughout the Champagne region. Grower Champagne, however, is wine made by the growers themselves. The wines are small in production and are a direct reflection of the soil and climate within their village. The notion behind it is that grower Champagne is more in tune with the notion of terroir. They can produce wonderful, characterful champagnes that come in many styles and represent great value. No wine cellar should be without Champagne and the two 1er Cru Grower Champagnes below are very special indeed:
Cuis 1er Cru, Champagne Gimonnet – Per Bottle £32.00 inc VAT Case of 6 £144.35 IB Beautifully pure, floral nose. On the palate a racy, energetic feel with nuances of stone fruit, acacia, brioche and underlying minerality. Lovely purity and vitality run like a vein through the wine, which has a long, crisp, slightly nutty finish. Exemplary Blanc de Blancs and great apéritif style. Deliciously precise with high toned citrus fruit providing thrilling focus and definition. White flowers and crisp apple join chorus making this supremely refreshing as well as exceedingly moreish. This really speaks of the character of Cuis – the heart and soul of Gimonnet’s vineyard holdings.
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Anti-Money Laundering
Money Laundering and Virtual Cryptocurrencies On 12th October 2017, Bitcoin, a decentralised virtual cryptocurrency, soared above $5,000 to reach a record high. This came only a month after Jamie Dimon, the Chairman and CEO of JP Morgan Chase described the currency as a fraud that would blow up, and was only useful ‘if you were a drug dealer’.
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espite warnings cryptocurrencies are growing in acceptance. In September 2017, a London property developer, The Collective, said it would allow its tenants to pay deposits in Bitcoin and would soon accept rent payments in cryptocurrency. The very next day, entrepreneur Baroness Michelle Mone OBE indicated that properties within development Aston Plaza, Dubai, could be purchased using Bitcoin.
However, greater regulation is coming. In April 2017, Japan introduced legislation to protect users by making Bitcoin exchanges comply with AML regulations, while simultaneously authorising it officially as a normal payment method. Bitcoin exchanges are the easiest target for law enforcement agencies. Preventing criminal property from being converted into Bitcoin is far easier than distinguishing between legitimate and criminal currency once it has become virtual.
So are Bitcoins for the criminal class, or are they the payment method of the future?
Sam Thomas
1
01/06/2017
There is little doubt that cryptocurrencies avoid many anti-money laundering (AML) provisions in relation to identity. Decentralised systems are particularly vulnerable to anonymity risks. By design, Bitcoin addresses, which function as accounts, have no names or other customer identification attached, and the system has no central server or service provider. The Bitcoin protocol does not require or provide identification and verification of participants or generate historical records of transactions that are necessarily associated with real world identity. Identities can be further obscured through a ‘mixer’ or ‘tumbler’. Mixers sends transactions through a complex, semi-random series of dummy transactions that makes it difficult to link specific virtual coins (addresses) with a particular transaction. Bitcoin users have anonymity which is impossible with traditional currencies. Virtual currencies also exist online over multiple jurisdictions, leaving the responsibility for AML compliance and supervision as unclear, with the strength of AML provisions varying across borders. In the UK, a Bitcoin exchange is not required to follow AML or ‘know your customer’ regulations. Within this jurisdiction Bitcoin is treated more like a commodity than a currency. If you tried to exchange Bitcoin for sterling you would not be charged VAT on the value of the Bitcoin but would be charged on the commission for exchange.
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10
Anti Money Laundering
Technology
Taming the Compliance Beast ew compliance burdens keep arriving like leaves in the autumn breeze. Here are the latest:
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• New AML regulations came into force on 26 June. Amongst other things your firm must now have a written AML risk assessment (which the SRA can demand to see at a moment’s notice). And there are new rules on checking if clients are “politically exposed”, and about checking trusts and companies. • A new offence concerning “facilitating tax evasion” arrived on 30 September. Firms now must have reasonable prevention measures in place. Otherwise if a member of staff helps a client to fiddle their taxes your firm can be prosecuted, and has strict liability. • From May 2018 data protection law will be toughened up by the “General Data Protection Regulation”. That will make countless changes, including increasing the penalties for noncompliance, and effectively shifting the burden of proof onto firms if there is an allegation of a breach.
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www.socrates-training.co.uk 24
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• And soon the SRA will be introducing an all-new version of the SRA Handbook and Code of Conduct. And this is not to mention cybercrime risks, which are worse than ever, and the new CPD regime which is still bedding down. Ignore these things and disaster might loom. So for each area you are expect to understand your obligations, do a risk assessment, draw up a policy, train your staff and finally check they are following the required procedures. But this is not easy, especially if you are simultaneously practising law. Part of the problem is that the new rules are almost always longer and more demanding than the old. For example the new AML regulations are 30% longer, while the new AML guidance from the SRA is up to a hefty 153 pages. The GDPR is 88 pages of mind-numbing technicality. Only the SRA Handbook will be getting slimmer, down to a mere 130 pages, from over 400 at present. The only practical answer is to recognise that most law firms have similar needs, and can adopt similar training, policies and precedents. Socrates was set up in 2004 when AML regulations first hit law firms, to help them meet the challenge. We have expanded our services in countless ways since, but the basic philosophy is always the same. We provide online training which is punchy and practical. We send firms the checklists and precedents they need. And we keep them up to date with bulletins, to highlight developments, and to update the documents.
Anti Money Laundering
New Money Laundering Regulations -
Martin Jones
what will change and what will stay the same? On 19 September 2017, the Legal Sector Affinity Group made available its guidance on the application of the new Money Laundering Regulations within the legal sector. he guidance is available on the SRA website (link provided at the end of this article) and Martin Jones, Partner and Head of the Regulatory Department within Hugh James, provides an overview below.
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The guidance is marked “draft” because it is yet to be approved by the Treasury however, it would be a surprise if any very significant changes were made after this point. The new document replaces but builds on the Law Society's Anti-Money Laundering Practice Note, so much of it will be familiar to those who already work with that document. The Law Society’s helpful flow-charts are adopted and chapter 12 of the guidance contains a useful consideration of money laundering warning signs referable to particular areas of work.
So if your firm would like to enhance its client retention, increase revenue and keep up to date with changes in the legal profession then visit our advert on page 32 for further details about our free network or visit us at our exhibition stand at the National Local Law Societies Conference. http://www.sra.org.uk/documents/solicitors/code/lsag-antimoney-laundering-guidance.pdf By Martin
Jones
There are no great surprises in the interpretation of the 2017 Regulations but the guidance does provide some assistance to those seeking to navigate the key additions to the anti-money laundering and counter terrorist financing obligations resting on law firms, such as 1) the need to create or update a written risk assessment; 2) the need to apply simplified due diligence subjectively; 3) the need to identify Politically Exposed Persons in the UK as well as abroad; and 4) the need to ensure that the client due diligence information obtained on corporate identities meets the specifications set out within Regulation 28(3). There is also some advice as to how to decide whether your firm needs to apply the additional “internal controls” listed within Regulation 21, namely appointing a "responsible officer" to oversee compliance with the 2017 Regulations (it might be a different individual to your MLRO); screening relevant employees; and establishing an independent audit function to check compliance with AML procedures. Martin Jones will be presenting on the topic of AML at a forthcoming Legal Network London (LNL) seminar. LNL is a free referral and support service for law firms which aims to keep its member’s up to date with changes in the profession and also offers legal expert advice to member firm’s clients in areas they do not practice in. Your firm can also earn revenue on cases that you refer to us and you will retain your clients due to our non-poaching commitment. The network is operated by Hugh James, a full-service, top 100 UK law firm. With more than 50 years’ experience in providing specialist legal advice, we have the expertise to deliver a service that you and your clients can trust. The Report
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Anti Money Laundering
Anti-Money Laundering: What’s changed and what this means for UK conveyancers The European Union’s Fourth Anti-Money Laundering Directive was implemented into UK law on June 26th. As a result there are changes to how law firms must conduct customer due diligence and an increased focus on the need to incorporate ongoing and documented risk assessment. What’s the risk? There are regulatory and legal / criminal penalties in place for noncompliance. This includes fines of up to £1 million and prison sentences from two to seven years.
What’s changed? 1. Customer due diligence and risk assessment Under the new legislation the choice regarding level of due diligence is more limited. There is no longer any automatic exemption from enhanced due diligence. A decision to apply simplified due diligence needs to be evidenced by a documented risk assessment. In simple terms, this means that all conveyancing clients must be risk-assessed, regardless of country of origin, services purchased or delivery channels. Moreover, the risk assessment now needs to include Politically Exposed Persons (PEPs) and Financial Sanctions screening.
2. Ongoing record-keeping and transparency Risk assessments must be kept and made available to regulators. This is worth noting as it is the first time that firms are explicitly being told to document and file risks in this way. How an electronic AML search can help An AML search facilitates risk assessment by combining all processes and records in one automated system. It enables firms to search for adverse information on a client more thoroughly than they would be able to do manually, and it ensures that compliance procedures are adopted firm-wide. A typical AML search offers:
Automated risk assessment
This includes automated screening of Sanctions, PEPs and alert lists and multiple confirmation of identity, address and birth.
Choice of due diligence level
Users can opt for either simplified or enhanced due diligence. Simplified due diligence is typically for “low risk” transactions whereas enhanced due diligence is for “medium or high risk work”. Opting for enhanced due diligence ensures the most comprehensive range of electronic data (including positive and negative verification) is used to confirm the client’s identity, date of birth and address.
On-going compliance
The system continues to monitor risk-assessed clients, alerting you if documentation or data may affect the result of the original assessment.
Automated record keeping
An AML search also automates record-keeping and audit. Users have the option to add, certify and manage customer documents within the due diligence record.
Geodesys offers an AML search at a cost of £6 (inc VAT) for enhanced due diligence. The search is not restricted to conveyancing transactions, but offers valuable due diligence cover in dealings where there is any risk of money laundering, identity theft, fraud or mis-representation, for example, in probate cases. For more information please see our frequently-asked questions on AML for conveyancers at www.geodesys.com/aml-directive-faq
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ENROLMENT DEADLINE: Enrol before 12 January 2018 to sit the exam in May 2018 “Unlike many professional courses, the STEP diploma ma applies to my day-to-day job and has enhanced my own wn personal knowledge and also increased my confidence. It i recognised is i d by b firms, referr f ers and d clients. lients. The diploma ma would be a major asset to your CV and professional skillss.” Clare Threlfall TEP P,, P Senior Solicitor Private Client, Greenwoods Solicitors LLP LP
For more information please visit www.ste ep.org/trust-diplomas 26
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Finance
New accounts rules – are you ready? After extensive consultation aimed at reviewing and refining its approach to regulation and simplifying its 400+ page handbook, the Solicitors Regulation Authority (SRA) published its decisions and consultation response documents from the first phase in June 2017. Third party managed accounts As expected, the new Rules will allow the use of third party managed accounts to hold client money, provided that reasonable steps are taken to ensure the client is aware and understands the arrangements and client money is not received by the practice as a consequence. Accountants’ Report Currently, a final Accountants’ Report must be delivered when a practice ceases to hold client money. This has created additional burdens when there is no additional risk to the consumer, such as on transition from a partnership to an LLP. Under the new Rules, the SRA is only looking for a ‘cease to hold report’ where a firm shuts down and this is to ensure all client money is dealt with appropriately; or, if the SRA specifically requests one. This will benefit practices converting to LLP status, incorporating to a limited company or merging as they will now simply change the client account title, rather than have to obtain a ‘cease to hold report’. The new Rule 43A provides reporting accountants with guidance New Accounts Rules on considerations needed when deciding upon the audit work that Client money needs to be carried out at a firm. This includes the complexity and It had been proposed that ‘money paid to firms for fees in advance size of the firm, the type of work it undertakes, the number of and payments for which the firm is liable is not client money.’ The responses to the consultation opposed this change for many reasons, transactions and the total client funds held. Firms will need to demonstrate strong internal controls and including reduced consumer protection, VAT implications, as well as systems. Generally, those with robust controls and systems that the cost and administrative burdens of changing current accounting comply with the Accounts Rules have a strong appetite for risk processes. That change has been dropped, so the current position management, and will have included their accountants in the remains i.e. money received in advance for the payment of fees and disbursements will continue to be client money, and should be held in design and implementation of their systems. Most importantly, they regularly test the robustness to safeguard client the client account until the point at which they are billed. material and money. However, the Rules do include an exemption for operating a client Firms not meeting this standard are more likely to receive a account, where the only client money held is in relation to fees and qualified Accountants’ Report, which must be submitted to the disbursements for expenses incurred on the client’s behalf. In this SRA within six months of the accounting period end. instance, the client must be informed in advance of where and how The good news is that, overall, very few firms will need to make the money will be held. Some of the very detailed requirements, such as imposing deadlines amendments to their systems, processes or controls because of the new changes. However, some may use the update as an to deal with a process, were removed and, as expected, the 14-day opportunity to bring in some new measures to improve existing rule for transferring client money to office will no longer exist. This will control and systems. be a welcome revision for many practices, which find it difficult and impractical to comply with. In the main, firms will be able to carry Tanya Hamilton on with current processes and in some cases, adapt them to be legal services advisory partner, more relevant to their practice, in line with the increased flexibility McBrides Chartered Accountants of the rules. Legal Aid Further changes are also seen in respect of Legal Aid payments where all the money will now be included in the office account, including that for unpaid disbursements. he changes, which are the first phase of the regulator’s Looking to the Future programme, will be incorporated into a new ‘slimline’ 130-page SRA Handbook, which is due for implementation in autumn 2018 – and anticipated to be 1 November – at the earliest. As I write, we are awaiting the launch. The consultation for the second phase of the review was launched in early September and is due to close for comment on 20 December. Under the changes already announced over the summer, there will be two new Codes of Conduct – one for individual solicitors and one for practices and a new set of ‘SRA Principles’ to guide behaviours. Solicitors will in future be able to offer some non-reserved legal services outside of firms regulated by the SRA or another legal services regulator. Revised and streamlined Accounts Rules received a warmer welcome in the June decisions, with the SRA revising its position on the redefinition of client money and making additional changes to the proposed Rules. But what do these proposals mean in practice?
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Property
Can Leasehold Enfranchisement be the answer to doubling ground rents? Recent news reports about houses in the North East being sold with 999 year leases and subject to high ground rents that double every 20 years, brought headlines of ‘One Million Pounds per annum Ground Rent Liability’.
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his was not representative of house sales across the Country, and after this matter was highlighted, quite rightly, developers have begun to change the way that these houses are sold and are now offering freeholds as opposed to long leasehold interests. However, this matter has highlighted the growing trend for developers, particularly in London and the South East, to offer new build flats on long leases for 250 years and subject to ground rents that start at £250 pa and double every 20 or 25 years. Headlines again would report that in the final 25 years, the ground rent could be as much as £128,000 pa. Even when allowing for inflation, that clearly does seem a considerable liability, although by then who knows what currency we will be using, let alone whether we will still be living in ‘flats’.
– would be less for 250 years than it would be for 125 years, the overall premium payable would be less where a new lease of 250 years is granted as opposed to 125 years. On a property with a value of £500,000, the cost of extending the lease after 2 years and thereby significantly reducing the ground rent liability, could be in the region of £5,000 to £10,000. This may be considered a small price to pay for significantly reducing the ground rent liability over the term of the lease. The removal of such a high ground rent liability will also enhance the saleability of the flat.
Andrew Barton
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26/10/2017
MRICS Director Gibbs Gillespie
Nonetheless, this increasing trend is giving cause for concern for valuers and solicitors as to how to best advise clients when purchasing flats where the ground rent ‘doubles’, as opposed to ‘increases’, every 20 or 25 years. There appears to be a never ending supply of new build flats within London and the South East, but with a reduction in the demand due to concerns over the economy and the effect of recent tax changes to the buy to let market, it is the future saleability of flats with these significant ground rent liabilities that is brought into question. The Leasehold Reform Housing & Urban Development Act of 1993 grants a lessee the right to extend their lease by 90 years, after it has been owned for 2 years, and importantly reduces the ground rent from whatever was originally payable under the terms of the lease, to peppercorn. The increased length of the term from 125 to 250 years would have very little effect upon the premium which would be paid, and in fact, as the capitalisation of the reversion – ie the value of the flat at the expiry of the lease
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1
Property
The Defective Gift PSG Financial Services explain the importance of Insolvency Act Indemnity Insurance when gifting funds for a home purchase to a family member More and more parents are giving financial help to their children for home purchase, but if a family member gives a gift, informal loan or a discounted purchase price they then potentially acquire an interest in the property. If a person who made the “gift” becomes bankrupt, for example in situations where property is gifted to children, transferred at less than its true value, or when the deposit has been provided by someone other than the buyer, it is possible for the gift to be set aside or overturned and for the trustee-in-bankruptcy to claim an interest in the property. The Law The law behind this is S339 of the Insolvency Act 1986 (The Insolvency (England and Wales) Rules 2016) which states that if a bankrupt individual has within the previous five years “entered into a transaction with any person at an undervalue,” then “the trustee of the bankrupt’s estate may apply to the court for an order” to restore the gift to the donor for the benefit of the creditors.
Networking, Training, Live Debate
So, a loan or a gift from a parent to a child, to help in a home purchase, would be a transaction at an undervalue since the parent is unlikely to demand any interest on the loan or ask for any “valuable consideration” in return for the gift. The asset to be returned to the donor is now not money but a property interest in the home of the son or daughter. Consequently, this would be available to the creditors thus putting the title that the mortgagee and mortgagor have in the property at risk. The Insolvency Act legal indemnity insurance policy provides protection if the donor becomes insolvent and creditors of the donor make a claim on the property as well as the lender’s security. The Handbook 5.16.3 states: ‘If you are aware that the title to the property is subject to a deed of gift or a transaction at an apparent undervalue completed within five years of the proposed mortgage then you must be satisfied that we will acquire our interest in good faith and will be protected under the provisions of the Insolvency (No 2) Act 1994 against our security being set aside. If you are unable to give an unqualified certificate of title, you must arrange indemnity insurance (see section 9) ‘You must effect an indemnity insurance policy whenever the Lenders’ Handbook identifies that this is an acceptable or required course to us to ensure that the property has a good and marketable title at completion’. As a rule, it is always prudent to obtain a Declaration of Solvency from the Donor (the person making the gift) and taking out an indemnity policy to protect the Donee (the person receiving the gift) against the possibility of a claim being made against the property by a Trustee in Bankruptcy.
Property Matters Join us for a different CPD experience
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PSG Financial Services have a range of over 35 Title and Legal Indemnity Policies available to order online, including Insolvency Act Indemnity Insurance, giving instant cover and peace of mind to your client. If you are unable to meet the ‘Statements of Fact’ for our online policies, our expert Customer Services team can assist you with bespoke quotes from a choice of insurers to find you the best level of cover.
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Property
Time to get on board? Our latest Continual Professional Development (CPD) event at the STEAM Museum was just the ticket – time to get on board? Did you know that all CPD courses run by Thames Water Property Searches (TWPS) are designed to help ensure you’re in line with most recent Solicitors Regulation Authority (SRA) guidelines? There is no need to count CPD hours since new guidelines were issued last November. Instead, conveyancers are required to identify and address any learning and development needs, to make sure knowledge and skills are up to date and that they are competent to practice. That’s why it was full steam ahead for attendees who came to our latest commercial conveyancing CPD event, held at the iconic STEAM Museum in Swindon in June. During the day-long conference, delegates got the lowdown on the latest industry news from experts such as Land Data CEO Jan Boothroyd, who gave an ‘informative’ talk on updates to various Local Authority searches, as well as their commercial applications. Another highlight was Paul Clark, consultant at Cripps LLP, who delivered an energetic commercial property workshop, covering issues such as lease drafting – especially relevant after the recent landmark case involving Marks & Spencer – and the registration gap, as well as exploring a variety of potentially problematic Stamp Duty Land Tax (SDLT) situations.
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There were also talks from Alex Barr of Third Bounce on how conveyancers can win more clients and TWPS’s own account manager Jason Harper, who delved into the world of Sustainable Urban Drainage Systems (SuDS). To top the day off, delegates were given a history lesson from one of the STEAM Museum’s volunteers. Michelle Challis from Gardner Leader, said: “Solicitors from our conveyancing team regularly attend Thames Water CPD events and the recent commercial property event held at the Steam Museum in Swindon was excellent. The speakers were all very knowledgeable and the event, as usual, was well planned, informative and engaging.” Getting up to speed with your continuing competence is easy with TWPS. Take a look at our upcoming schedule of CPD events to see what we’ve got to offer your business: thameswater-propertysearches.co.uk/LatestNews/1698 To reserve your place at one of our events – or to chat with a member of our Customer Experience team – please call: 0113 953 1756 or email: twps.events@thameswater.co.uk
Wills and Probate
When you’re gone... More people are realising the importance of making provisions for when they pass away, especially when it comes to taking care of their pets. Many dog owners worry about what might happen if they were to pass away, leaving their beloved four-legged friend behind without an owner. Thankfully, Dogs Trust offer a fantastic free service that aims to give owners peace of mind, knowing that their dog will be loved and cared for should anything happen to them, and helps to ease the minds of friends and family during what is already a distressing time. Amy, a 14-year-old Collie cross, found herself alone when her owner sadly died and the next of kin couldn’t care for her. Because Amy had been registered on the Canine Care Card, a family member was able to hand her over to the care of Dogs Trust Kenilworth. Amy had lived with her owner since she was a puppy and was understandably missing her home comforts, so was placed into temporary foster care before finding a loving new owner, 85-year-old Graham Buckingham from Brinklow, who says: ‘I'm so lucky to have her in my life and I'm glad that I've given her a second chance." Becoming a Canine Care Card holder is easy. Dogs owners simply complete a registration form and return it to Dogs Trust, who issue them with a wallet-sized card which acts in a similar way to an organ donor card and notifies people of their wishes for their dogs, should anything happen to them.
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We will arrange to bring their dog to our nearest rehoming centre, where they will be examined by our expert vet and cared for by our dedicated, trained staff. We will endeavour to find their dog a new owner whose lifestyle and experience match their needs, but if for any reason they cannot be rehomed, rest assured Dogs Trust never puts down a healthy dog, so we will look after them for the rest of their lives.
Wills and Probate
The Future of Wills:
The Law Commission Consultation Paper “Making a Will” It has been billed as a once-in-a-generation opportunity to overhaul the law relating to wills.
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he Consultation Paper is a 246-page document which provides a sweeping review of various aspects of the law in this area and some proposals for reform as well as seeking views. A principal motivation for reform is the concern that our laws which govern the formalities for making wills (the Wills Act 1837) and the test for testamentary capacity (the case of Banks v Goodfellow (1870) LR 5 QB 549) both date from the reign of Queen Victoria. Now, it is suggested, may be the time to modernise. There is also concern expressed that only an estimated 40% of the population have a will. Those are not self-evidently good reasons for change. Old laws are not necessarily bad laws. They have, after all, stood the test of time. Not everyone will agree that intestacy is one of the pressing social ills of our time. However, it is doubtless true that a review is welcome - especially if will-making is seen as off-putting for its complexity, or intestacies are too often arising from a failure to comply with formalities. We also need to be satisfied that our law relating to wills makes the best use of current medical thinking as to the causes of testamentary incapacity, and balances the needs of protecting the vulnerable whilst ensuring as far as possible that effect is given to a testator’s testamentary wishes. The Consultation Paper covers various topics concerning wills: capacity; statutory wills; supported will-making; formalities; electronic wills; protecting the vulnerable; wills by children; interpretation and rectification; ademption; revocation; mutual wills; and deathbed gifts (‘donationes mortis causa’).
In some respects suggestions are made for potential reform, in others the law is considered to operate satisfactorily. In several cases the Law Commission expresses no firm view but invites our input (such as whether the automatic revocation of a will upon marriage is still justified). Electronic wills still seem to be a generation away. Some proposed reforms seem relatively modest, such as in clearing up lingering, minor anomalies and sensible suggestions that may only affect a limited number of cases – such as the proposal to lower the age of testamentary capacity from 18 to 16. The more major proposed reforms are: in respect of testamentary capacity; the protection of the vulnerable by a change to the law of undue influence in a testamentary context (in both cases a primarily statutory solution is proposed); and in the suggestion of a dispensing power by which the Court might waive compliance with the formalities of the Wills Act 1837 in cases in which the intention of the testator can be discerned from the evidence available (albeit not solely from oral statements). It is the latter proposal that is likely to prove the most controversial, as it represents a significant exception to the certainty of the law of formalities for wills. It could well lead to an increase in litigation and create opportunities for abuse. A major overhaul of the law of wills may not be the result, but the outcome of the Consultation process will be a matter of considerable interest to those involved in this area of the law. WILLIAM MOFFETT
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Wills and Probate
Protecting Property When somebody dies, the largest element that makes up their estate is usually their home. This is often their own property, filled with a lifetime of memories, keepsakes and belongings. After the owner’s death, this building and its contents take on a very different role and to an administrator. The property is viewed in more simple terms and is very often the estates most valuable asset. As you all know, it is the role of the estate administrator to ‘manage’ and ‘realise’ these assets, but there is so much more work involved in these two words than meets the eye. They bring a whole new set of challenges to manage. These include the largely unpredictable British weather and the evenings provide criminals with perfect opportunities for acts of burglary and vandalism. Insurance company Aviva shared their claims statistics for the ten years between 2002-2012, and reported a 150% increase in claims for malicious damage to homes during this period. More vulnerable empty properties such as probate properties are at even greater risk of damage from vandalism and weather. Empty properties such as these hit the headlines last year when an article in the Telegraph stated: ‘More than 700,000 residential properties in England are left unoccupied, according to the charity Empty Homes. These vacant properties are often managed by people taking responsibility for the estate or affairs of another person or while a property is awaiting sale. However, many wrongly assume that existing buildings and contents cover would provide adequate protection should something go wrong and as a result, hundreds of thousands of homes are currently uninsured’.
With the demands of your workload you would perhaps struggle to see how you might arrange them all yourself. This is another area, in addition to our more widely known research, where our experienced staff at Fraser & Fraser would work with you, providing you with a trusted partner to offer support throughout the lifecycle of your case. Things to consider: - Maintenance & Security - Empty Property Insurance - Property Valuations - Energy Performance Certificate - Probate sales - Property Clearance If you are administering an estate with which you require our assistance or are experiencing difficulties, contact one of our case managers now to discuss how we can help: legal@fraserandfraser.co.uk or 020 7832 1430
GENEALOGISTS AND INTERNATIONAL PROBATE RESEARCHERS Phone: 020 7832 1430
I am a Solicitor
Email: info@fraserandfraser.co.uk
Looking for for Missing Beneficiaries Missing Beneficiary Insurance Certificates Will Search Missing W Wiill Insurance Industry Regulation International Bankrruptcy Search Asset Search Share V Vaaluations, T Tra ransffers and Sales Probate Property Assistance
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Mediation
Clinical Negligence Mediation – more to offer than a JSM? I have had lawyers say to me: “We don’t need to mediate; we know how to negotiate.” This seems like a more extreme version of “We can settle cases ourselves at Joint Settlement Meeting (JSM) and mediation doesn’t add anything.” In my experience, it misses a major option for negotiators.
Increasing the options Of course cases can be resolved satisfactorily by direct bi-party negotiation and some at JSM – although the quality of the outcome may rarely be considered post settlement. Mediation is an additional option which has the benefit of changing the dynamic in the discussion by including a neutral third party and arranging for a specific process to be used for the negotiation. Even skilled negotiators increase their options by engaging a mediator thereby providing better prospects for a more creative and perhaps better settlement for their clients. There may be an impression that in some way the process undermines the role of the parties’ lawyers in resolving cases; in reality, it almost always enhances it and gives an opportunity, not really available in a JSM, for parties themselves to play an involved and significant part in finding a workable solution that they need going forward. Difficult conversations Claimants in clinical negligence cases are, hopefully, one-time users of the civil justice system. This may also be true for the defendants, whether they are Trust representatives, clinicians, or involved in some other capacity. So people come to settlement meetings with many anxieties. Difficult, important conversations can be facilitated and chaired by a mediator in ways not possible at a JSM leading to greater understanding, helping to change the tone, manage expectations and often explore additional non-financial options that are important to the client. Emotion Clinical negligence cases almost always have a considerable emotional content which lies at the core of the dispute and has an impact on it, especially if unaddressed. Sensitive management of the process by the skilled mediator means that patients and/or their families can, if everyone agrees, speak directly to clinicians and hospital managers in an environment that is safe for all concerned. These meetings can be central to finding a way forward where the parties themselves feel that they have been involved in determining the outcome in their own case, without feeling threatened, intimidated or marginalised. Where parties feel unable to meet, as a neutral, the mediator is in a unique position to identify where indirect dialogue will improve understanding and thereby the prospects of a positive outcome.
Keeping private information confidential, the mediator can have candid conversations with each party and build a better understand of their needs and interests, find common ground and help the exchange of information within the negotiation, enhancing the prospects of resolution. IDeadlock Two of the salient qualities of mediators need to be patience and persistence. Part of the job is to keep people in dialogue, directly or indirectly, possibly when they feel there is little point in continuing at that time. By encouraging people to see that resolution is still possible and to stick at it, or by remaining involved after if the day has not produced a resolution, mediators are able to help parties overcome apparent deadlock so that resolution becomes possible. This is not because the mediator is a better negotiator, but because the parties and the mediator working together can find a way forward that bi-lateral negotiations via JSM are not able to. Client’s best interests Which process is in the client’s best interests will vary with the circumstances of the case. Mediation can give clients more than the other processes, even more than going to trial. This is not the place for us to consider the substantive benefits of mediation beyond noting that these include: client involvement, a high chance of resolution, increased scope for non-financial elements, certainty and reduced stress. Clearly there are many others to add to the list. Parties to clinical negligence disputes (and other dispute areas where settlement meetings are common) and their lawyers have much to gain by incorporating mediation more fully into their negotiation strategies. This is not to say that JSMs do not have a role in those strategies; however, mediation can offer much more in many cases, while keeping the parties’ legal representatives at the heart of negotiations for their clients, whether they are claimants or defendants.
Neil Goodrum solicitor and fulltime mediator
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Forensics
Why “cut-off” matters in drug testing Imagine standing up in court where you’re about to learn whether or not you’ll gain custody of your children. This is a reality for many parents and often hinges on the results of a drug test.
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he fact is, cut-offs play an important role in determining whether or not someone has been using drugs, which can have a major impact on the decision of a family court. That’s why we’ve outlined in plain English what exactly cut-offs are and how they’re used in interpreting the results of a drug test. What is a drug cut-off? A cut-off is a value which the results obtained in the hair drug test are compared against. Where drug levels are above the cut-off, the result is considered as “positive” or “detected”. Where drug levels are below the cut-off, the result is considered as “negative” or “undetected”. Typically, there are two types of drug cut-offs: the analytical cut-off and the user cut-off. The analytical cut-off is based on the limit of the testing method/ technique used to test the hair sample. Essentially, where a positive result gives a reading significantly above the limit of the method/ technique. On the other hand, the user cut-off indicates whether an individual has used drugs within the period covered by the sample and helps to exclude the detection of drugs from environmental contamination. For example, an individual may not have directly smoked any cannabis but was in a car with people who were smoking cannabis. Why do cut-offs matter? Cut-offs matter as not all positive test results mean a donor is currently using drugs. For example, the donor might have taken drugs a few months prior to the time frame of detection a hair test was used to assess. In this case, drugs would most likely be detected in the sample, but the result would be below the analytical cut-off as drug use was clearly in the past. User cut-offs are important as they safeguard donors from “false positives”. The user cut-off makes it clear that even though drugs are
present, the donor hasn’t actually been using drugs within the period covered by the sample tested and has merely been exposed to drugs in their environment. In both cases, cut-offs can protect a donor from a potential miscarriage of justice in a family court. The factors that can affect a cut-off Not all drug tests use the same cut-off values. In fact, the cut-off used in a drug test can be affected by: • The type of drug under assessment – eg in hair samples, the cut-off for cocaine is higher than the cut-off for the metabolite of THC (the main component of cannabis) • The type of sample – eg the cut-offs for hair samples are much lower than for urine samples • The method of analysis used – eg immunoassay testing (initial testing) versus chromatographic methods (follow-up confirmation testing) • The drug testing laboratory – eg different labs may use different procedures and equipment (accredited labs are your best bet for an accurate and reliable result). Overall, analytical and user cut-offs can indicate whether a donor truly has been taking drugs or has simply been exposed to drugs in their environment or used drugs prior to the period covered by the hair sample. This distinction can have a significant impact on the decision of a family court, so cut-offs must be considered carefully when interpreting results for drug use.
John Wicks Cansford Laboratories, Cardiff jwicks@cansford.com
Th hree days can sa ave a lifetime off hurt Critic cal decisions require the b best evidence, quickly! We provid de competitively priced UKAS-accredited hair test re esults within 3 days of receipt of the sample in our lab. Establish a clear pattern of drug or alcohol misuse sp panning the last 6 -12 months: • Which drugs or what level of alcohol has been used and when? • What is the pattern of misuse – is it risin ng or falling? • Has dru ug use cha anged in the past wee eks or mo onths?
tel: +44 (0) 0) 29 2054 0567 ema ail: info@cansfordlabs.co.uk o@cansfordlabs.co.uk visit: cans sfordlabs.co.uk 38
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Conveyancing Focus
Ensuring the long-term growth of your law firm Richard Hugo-Hamman, Executive Chairman of LEAP, discusses change and how to use technology to keep ahead of the curve
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our law firm is a business, and growth and profitability is paramount. You want to see your client base grow and your profits increase. More importantly, you don’t want to go backwards just because you are so busy working in the business that you don’t notice what is happening. You may have other goals – opening another office or being recognised as experts in a niche field. Whatever your measure of success, you want it to endure. Creating consistent, long-term growth can prove elusive. The best way to generate long-term growth is through the regular introduction of change to create new ways of doing things. For many businesses, including law firms, the clearest path to continued success is through the regular implementation of new technology in an ongoing cycle. This needs a culture of innovation so that your whole firm is accustomed to continuous improvement. You can visually plot the impact of innovation on growth and the inevitable progress through to decline using what is called the Sigmoid Curve. The Sigmoid Curve, which can be widely applied to the rise and fall of empires, countries, products and businesses, including law firms. It is comprised of five phases:
1. The introduction of change phase. In an established law firm, this phase can occur when you begin investigating potential areas of improvement. You may consider how you can streamline your processes using a technological solution. The phase culminates in selecting a solution to provide growth and implementing it. 2.The growth phase. The streamlining of processes results in an increase in efficiency, productivity and billing. Improved customer service leads to an expanding client base. 3. The success phase. Your firm is more profitable and is at the peak of success. Complacency is the danger. For many businesses, the elation that comes with success makes it difficult to appreciate that without further innovation, this growth will eventually decline. Your firm doesn’t look for ways to improve or prolong its growth. You believe your success will be long term. 4. The stagnation phase. Your law firm hits a plateau. Growth and revenue stagnates. You are benefitting from the last technology change, but previous efficiencies gained are not having the same impact that they once did, and areas that need improvement for you to keep competitive are now becoming an issue. 5. The decline phase. The markers of success are in decline. Revenue is shrinking and your firm is no longer as profitable as it once was. At this point, it is increasingly difficult to initiate a change event. The decline of growth is not inevitable. The issue lies in businesses reaching a peak and rather than finding ways to improve, they rest on their laurels. They fail to consider that success doesn’t last forever, so they are unable to objectively identify areas of potential improvement in their business.
To achieve long-term growth in your law firm, don’t fall into the trap of thinking the process of decline doesn’t apply to you. Much larger firms have declined and been merged away or even gone out of business, because they believed the process did not apply to them and they did not adapt or innovate.
The best time to start a new “curve” is before you reach the peak of your existing one. That way, you will be starting something new when you still have the resources to take it to new heights. In many respects, law is a slow-moving profession. This can have a negative impact on your business, particularly when your clients have adapted to evolving technologies but you haven’t. If you want to stay competitive, you need to consider how you can meet the expectations of the modern client, as well as the ways you can improve your practice using technology. Seeking a legal software provider for your firm that is committed to innovation will allow your practice to enjoy natural and repeated cycles of growth, creating new efficiencies. By adopting a single provider with a focus on ongoing software development, you will not have to worry about switching providers to chase efficiencies offered by new technologies. LEAP invests more than £8 million a year in research and development. We are continuously innovating solutions that keep our clients from being stuck in the stagnation to decline phases. This commitment to innovation has enabled LEAP to become the most popular practice management platform for law firms.
Don’t wait for the business to decline before attempting to introduce change. At this point, it could become much more difficult. Instead, capitalise on previous efficiencies by regularly introducing change before you hit the success peak. A platform provider dedicated to innovation can help you create natural and repeated cycles of growth, ensuring your firm’s success and profitability rises steadily over time. LEAP has innovated for more than 25 years, insulating clients from the cost of changing systems and introducing compelling new features, enabling clients to take advantage of new technologies without great disruption. leap.co.uk
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