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ACCOUNTS Joanne Casey

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ADVERTISING AND FEATURES EDITOR Anna Woodhams

MEDIA NO. 1300 PUBLISHED November 2013 – © Benham Publishing 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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Conference The Expert Witness Institute Conference 2013

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COVER IMAGE This issue’s cover image is a photograph from a finalist of the National Photography Awards, Danny Garside.

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Spring Summer Autumn Winter

Issue Issue Issue Issue

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3rd January 2014 4th April 2014 4th July 2014 3rd October 2014

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News & Events Gamlen Prize 2013 Council Member’s Report Transylvanian Express Talented London Student Makes Final of Prestigious National Photography Awards The Royal Horseguards Hotel & One Whitehall Place Property Driving Customer Service Improvements for Conveyancers Complicated Leasehold Process Made Easier with New Standardised Format Says Law Society Electronic Official Searches - Risk Reduction as Standard

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

COPY DEADLINES

Introduction The President’s Column

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Professional Practice Timely Outsourcing Guide Helps Law Firms to Work Smarter Set Yourself Apart from the Competition as a Qualified and Competent Will Draftsman How Has Your Compliance Journey Been So Far? eDisclosure – Getting Control in an eDisclosure Case When Probate Properties Drain Your Resources, Finding a Trusted Expert to Help Will Save Time Legal Aid Update on Criminal Legal Aid Book Reviews Elderly Clients: A Precedent Manual Managing Talent for Success: Talent Development in Law Firms Writing Medico-Legal Reports in Civil Claims: An Essential Guide Sub-committee Reports Land Law and Conveyancing Sub-committee Junior Lawyers’ Division International Sub-committee Professional Matters Sub-committee Education and Training Sub-committee Law Reform Sub-committee

President:

Hon Secretary:

Hon Treasurer:

Editor:

Administrator:

Susanna Heley susanna.heley@rlb-law.com

020 7227 7463

Jonathan Cornthwaite jcornthwaite@wedlakebell.com

020 7395 3122

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 0207 960 7115

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Introduction

THE PRESIDENT’S COLUMN initiative will be able to be taken forward in the next year to make the Shadowing Scheme a reality.

Melissa Hardee with the new President Susanna Heley at the AGM.

When I was installed as President at the 2012 AGM, I said that I had no illusions, and that the coming year was going to be extremely challenging. And so it has proved to be.

I said that I saw my role for the year as President as one of stewardship: to lead the Society so as to ensure its continued relevance for members and the profession. So, how does the Society be relevant for members? First, the Society has to offer what members need. This may not be the same for all members, however: for some members it will be the opportunity to attend events which they would not otherwise be able; for others it is the opportunity to obtain their CPD in a convenient and costeffective way through attending the Society’s lectures; for young lawyers and trainees, it is the opportunity to learn from the experience of other young lawyers, to be able to network, and to have contact with practitioners; for others again, it is being able to find out about changes to practice and the profession, and to have a voice for their concerns and views.

It was to meet these various objectives that I have directed my efforts over the last year, which I will describe in terms of events and lectures, initiatives in relation to young members, and in providing a voice for the Society’s members.

The events for members over the past year have been many and varied: the ‘year’ started with the Nigel Mayhew Lecture in November, very kindly organised by Ian McCulloch of Bircham Dyson Bell, with Suzanne Ormsby QC as the speaker. Then, in November, we held New Members’ Drinks, thanks to sponsorship from Wesleyan for Lawyers and the generous hospitality of Roger Woolfe and his firm, Collyer Bristow; because of the success of previous tours of the Supreme Court, we arranged a second such tour in February; then in March, we were very fortunate to be able to hold the Annual Dinner in the Peers’ Dining Room at the House of Lords, kindly hosted by the Baroness Gardner of Parkes. Fiona Woolf CBE was our guest speaker and spoke to us of her plans should she be elected as Lord Mayor of the City of London. I am pleased to say that we were privileged to be given a preview in fact, as Fiona has since been elected – only the second female Lord Mayor of the City of London in its some 800 year history; in June, the Society hosted the Legal Charities Garden Party, which was a most enjoyable evening with clement weather; and then in July, we arranged an Historic Taverns Walking Tour as a different event for members, spending an enjoyable evening ambling around the older parts of Holborn, tasting real ale in various historic hostelries.

The benefits of membership of the Society are not only access to events and lectures, however, but also access to a body that is dealing with issues which affect practice and the profession, and has a voice in doing so which the individual practitioner may not. The Society’s sub-committees are very important in this. They do important, but often invisible, work for the Society and its members. To this end, over the course of the year, I have sought to get to know the sub-committees and the work that they do more closely. My aim was to attend a meeting of each sub-committee, which I am pleased to say that I almost achieved, apart from Land Law and Conveyancing and Litigation. However, for all sub-committees, I was able to have constructive engagement with the chairs, which has had the added benefit of identifying lecture topics of particular interest to members, such as the Litigation Update lecture in March on the Jackson Reforms, contingency fees and costs budgets, and the Commercial Property Law Update in May. Having a Society in which its various components are communicating and working with one another is essential if it is to remain vibrant, and continue to be able to identify and meet the needs and interests of members. I have tried, therefore, in my various columns for the Report and eReport, to highlight the excellent work of the Society’s sub-committees.

From an external perspective, it is also important that the Society’s profile is raised, so that it is respected as a voice on behalf of the profession through engagement with those who are in continued

DIARY

We have also been able to hold a full programme of lectures during 2012/2013, with a range of current topics and excellent speakers. We owe a huge debt to Nabarro Nathanson LLP, which has very generously hosted the Society’s lectures for some time.

Unfortunately, Nabarro Nathanson will be moving to new premises on London Wall at the end of 2013 and the Society is therefore looking for a new venue for its lectures.

November

In terms of initiatives in relation to young members, the Society introduced student members at its 2012 AGM and I have been liaising with the many law schools in the Society’s area over the past year in order to develop student membership. I also proposed the setting up of a Shadowing Scheme, for the mutual benefit of the Society’s firm and student members alike. The high cost of education and new entrants into the legal services market make alternative careers and career paths particularly attractive to students who might otherwise choose to qualify as a solicitor. All of us should therefore be concerned to engage with potential solicitors if firms and legal departments are to have the talent they would wish to recruit from in the future. Giving students exposure to practice through the Shadowing Scheme is one way the Society can assist. To this end, I have written to member firms, to seek expressions of interest in the Shadowing Scheme, which I am pleased to say I have received, and I hope this

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Lecture: Property Aspects of the Finance Act Speaker: Patrick Soares, Gray’s Inn Tax Chambers Open JLD Meeting Presentation of The Wig & Pen Prize

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Committee Meeting and CWHLS EGM

For further information, please see the monthly eReport or contact Susie Hust at admin@cwhls.org.uk

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Introduction positions of power and influence over the profession. The Committee therefore held a dinner with members of the press in February and I made contact with the then Justice Minister, Helen Grant; the MP for the Cities of London and Westminster, Mark Field; and the Lord Mayor of the City of Westminster on behalf of the Society. Unfortunately, I was not able to set up a meeting with Helen Grant and the Committee to discuss areas of concern, such as the government’s legal aid restrictions on judicial review, but did meet informally with Mark Field in July to express our concerns at these initiatives.

GAMLEN PRIZE 2013

In July, I was invited to attend the launch of the Law Commission’s Consultation for the 12th Programme of Law Reform, and passed on proposals for areas of reform from two of the Society’s sub-committee.

With regard to other law societies, I attended the Law Society Presidents’ and Secretaries’ Conference in May to learn what other law societies are doing and what issues they are having to deal with. It seems rather perverse to take comfort from the fact that all local law societies are facing very similar problems, exacerbated by the current economic situation. I also attended the Annual Dinner of the South London Law Society in October and the Livery Dinner of the City of London Solicitors’ Company in November, at which I co-presented the Wig & Pen Prize with the President of the City of London Law Society. During a personal trip to Dublin, I took the opportunity to meet with the President and other officers of the Dublin Solicitors Bar Association, and discussed the possibility of a closer relationship between the two organisations.

So, in summary, it has been a very busy year.

At the end of my year as President, I must pay tribute to my fellow Officers, all of whom have been supportive, constructive and a delight to work with in what I said at the start has been a very challenging year. The Honorary Treasurer and Honorary Secretary were both new to their roles and have been excellent in carrying out their responsibilities. The Editor of The Report, Rosemary Lester, stepped down at the end of February after some ten years in the role, and the role of Editor was ably taken up by Ivan Ho, who has been assiduous in carrying on Rosemary’s excellent work. In order that the Officers did not lose Rosemary’s experience and knowledge of the Society, I was delighted that Rosemary agreed to remain an Officer for the year as the Deputy Honorary Secretary. It is very important that, in embracing the future, the Society remembers its past and heritage; what it must not do, however, is allow the past to strangle its future or prevent progress in what is a fast-changing profession and legal services market. It has therefore been very beneficial that, with the new Officers, the Society effectively has had a completely new management team this year, with nearly all Officers currently in practice and therefore able to bring a fresh approach and more contemporary perspective to the Society’s management and governance.

My feelings at the end of that year are not tranquil, however: as solicitors, we are working in strange and challenging times. A question the Society must always have at its heart is what its purpose is. Just because the Society has existed in one form or another for some 50 years does not automatically justify its ongoing existence. Nor does it mean that how it has been previously is how it must continue. The Society must be able to respond to the changing needs of its members. How it is going to be best able to do this is something the Society needs to address. It is with regret that I must hand on these issues, unresolved, to the next President. I hope, however, that the members and the Committee for the coming year will allow and support the new President and Officers to lead the Society forward in this fastchanging environment, and trust to their understanding of this new world in finding the appropriate direction for the Society. I have no doubt about their ability to do so.

MELISSA HARDEE PRESIDENT

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Kate Lowdon, and the runner up, Karl Sutaria, with Ashley Badcock who presented the Gamlen Law Prize.

The Society awarded the Gamlen Law Prize this year at its AGM on the 16th October to Kate Lowdon, a trainee with the Treasury Solicitor who was nominated by the City Law School. Karl Sutaria, who has a training contract with Mishcon de Reya, was the runner-up. This is only the second occasion in the modern award of the Prize that a trainee with the Government Legal Service has won.

For those who are unfamiliar with the Gamlen Prize, it was established under the Gamlen Charitable Trust in memory of the Gamlen family and more especially St John Gamlen who was the last of five generations of solicitors; he was described as a meticulous and sparing draftsman. At its inception in 1991 the competition for the Prize was organised and awarded by Holborn Law Society. Trainees were then invited to submit entries for the Prize which tested their drafting abilities on a subject set by Holborn Law Society each year. For example a competitor for the Prize might be asked to draft a letter to a client explaining the effect of a particular piece of current legislation. There was a change in the Prize rules in 1998 and now LPC course providers in the Society’s area are invited to nominate their most promising candidate, regard being had to the candidate’s ability to reduce a complicated subject to simple and lucid language suited to a lay client.

This is the 16th year of the modern award of the Prize, which consists of a shield and a cheque for £250 for the winner. This year there were five nominations from three of the LPC course providers: University of Law, BPP and City Law School. Judges for the Prize were Michael Gillman of Bishop & Sewell LLP, who is a past President of the Society and Ashley Badcock of Sharpe Pritchard LLP, who is a former Chairman of the Education and Training Sub-committee of CWHLS.

News & Events

COUNCIL MEMBER’S REPORT - OCTOBER 2013

Sue Nelson

The dominant theme of this Council meeting was irritation – irritation that half the Council papers were delivered late; irritation that half the most important papers were withdrawn during the meeting; and irritation that decisions appeared to have been made about the Society’s position on criminal legal aid and regulation without adequate or proper consultation. That the meeting ended very late in a room where the air conditioning had failed some hours previously hardly helped. News that the December meeting is to be extended by half a day in order to make time for the withdrawn papers to be re-presented was received with weary resignation.

All this is a shame. The new President must have hoped for a smoother start to his Presidential year as leader of the Council as must the 19 Council members for whom this was their first meeting.

Increasingly little Council business is executed in public and so there is less and less to report. Elsewhere readers will have heard how the Society’s position on criminal legal aid was shaped by debate. It was heartening to hear the City offer to stand solid with the minority of the profession directly affected by the proposed changes. Being paid by the government to deliver legal services means that you have a client with the habit of chasing popularity and, it would seem, that the needs of the poor are not a vote winner.

The Society has been working with a third party to develop a free online tool to enable firms to collect, report and publish data on the diversity of their workforce as required by the SRA. As at the end of August, nearly 900 firms have registered to use this service already. It should take much of the effort out of this task for hard pressed firms.

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In a bid to understand the members’ needs better, research has been conducted with 275 small and medium practices to understand the importance of various support functions and business services provided to them by the Society. This will inform plans for the delivery of consultancy and other services for 2014. The Practice Advice Service has received over 7,500 calls over the last three months and has been important in supporting firms with advice on Professional Indemnity Insurance. It was reported that the new Gazette website has been well received by users.

The future of regulation: The Society has submitted a response to the Lord Chancellor’s call for evidence on regulating the profession. The key elements of the preferred way forward are: • Return responsibility for standard setting and education to the professional bodies.

• Revise the Internal Governance Rules to clarify responsibilities, giving the professional bodies clearer accountability for their arm’s-length regulator.

• Reduce the size and scope of the oversight regulator, which would be chaired by a judge.

Council discussed these proposals and the strands of work that would be required for implementation if they were adopted by the Ministry of Justice. These include defining which functions would transfer, how the rules would need to be amended, and how to address practical issues including organisation design.

Meanwhile, IT was back on the agenda and improving the control environment within the Society.

SUE NELSON

News & Events

TRANSYLVANIAN EXPRESS REPORT OF THE FBE CONGRESS IN CLUJ, ROMANIA 17TH TO 19TH OCTOBER 2013

Professor Sara Chandler reports on her whirlwind visit to Cluj, in the heart of Northern Romania and romantic Transylvania.

My first impression was of loss, there were no forests, or castles, or wooded tracks. The view from the hotel was of bare rolling hills with some evidence of industrial installations.

The main theme of the Congress was Access to Justice. The Autumn Congress is divided into three parts: part 1 is a training day; part 2 is the Intermediate Meeting of the FBE with the main theme of the Congress; and part 3 is the business of the Federation.

The topics for the training day included: ADR as a solution to access to justice, examining time limited and small claims in civil mediation; collaborative law process; and arbitration as an effective remedy after a frustrated mediation. This was followed by a round table on taxation and court fees as an obstacle to access to justice and another on access to the legal profession as a guarantee of justice for citizens. Lawyers from 7 different jurisdictions contributed as round table speakers.

the afternoon I chaired a session on “Access to Justice for Victims”. Lawyers from 9 jurisdictions contributed as speakers and compared barriers to justice across Europe.

Friday evening ended with a banquet and dancing together with cabaret from a quartet and opera singers (all the favourite singalong songs). I retired early having got plenty of exercise on the dance floor. I had to be up early next morning for the 9.30 start of the meeting of the Human Rights Commission of which I am President. Our Commission had a wide ranging discussion on lawyers at risk (Turkey, Iran, Egypt and Colombia), corruption in the courts (Romania and Poland), No Flights Lists (Germany), Closed Material Proceedings (England & Wales), Female Genital Mutilation (Europe) and the humanitarian disaster for refugees following the drowning off Lampedusa.

The President of the FBE this year is Rod Mole, member of the Law Society Council and Devon and Somerset Law Society. It is an important year for UK members.

The next Congress is in the Spring in Vienna, 29th – 31st May 2014, and all CWHLS members will be welcome. More information can be gained from CWHLS International Sub-committee.

Our evening social event was an amazing trip to a traditional restaurant for a traditional Romanian meal. Accompanying the food was music from a violinist who got many of the revellers to help him play the violin, and around 25 of the Cluj lawyers came to the party dressed in traditional costumes. They blended well with the dancers who showed us how to join in and then got us all on the floor.

Next morning, I spoke in the first session of the morning on “General Aspects that Prevent Access to Justice”. And then in

Rod Mole, President of the FBE

PROFESSOR SARA CHANDLER, CWHLS

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News & Events

TALENTED LONDON STUDENT MAKES FINAL OF PRESTIGIOUS NATIONAL PHOTOGRAPHY AWARDS ASPIRING PHOTOGRAPHER, DANNY GARSIDE, IS SELECTED AS A FINALIST IN HOTEL INDIGO STUDENT PROGRAMME IN PARTNERSHIP WITH WORLD PHOTOGRAPHY ORGANISATION (WPO) London, 29th October 2013: Danny Garside from University of Westminster has been selected as a finalist in the Hotel Indigo student programme in partnership with World Photography Organisation (WPO). InterContinental Hotels Group’s (IHG’s) boutique brand, Hotel Indigo, partnered with the renowned WPO, which supports professional, amateur and student photography across the world, to develop a national student programme which will discover the next generation of UK talent.

The eight Hotel Indigo hotels in the UK have been paired with local universities taking part in the WPO Student Focus competition. The students from around the country have been challenged to create individual photography projects inspired by the hotels’ local neighbourhood in a bid to be appointed as Hotel Indigo’s next official photographer.

Danny is a recent graduate from University of Westminster where he studied Photographic Science and is one of eight finalists from the UK who was selected by his lecturer after being acknowledged for his artistic talent.

The winner will be announced on 26th November 2013 and will be rewarded with a paid commission to shoot the Neighbourhood Story for the newest Hotel Indigo to open in Europe in 2014. The students’ photography will also be exhibited at Somerset House in May 2014, followed by a tour of the eight Hotel Indigo hotels in the UK at which guests and local residents will be invited to view the students’ portfolio of work.

As IHG’s boutique brand, no two Hotel Indigo hotels are the same, with each drawing inspiration from its local neighbourhood to reflect the community, character and history of the surrounding area. Each hotel uses art, photography, architecture and design to tell the story of its neighbourhood and the Student Focus programme seeks to cultivate young talent and provide a national platform from which aspiring photographers are able to showcase their work.

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As part of his entry, Danny experimented with different photography techniques and used the history of the local area as his inspiration for the project due to the blend of bright floral colour and strong Victorian architecture. Danny used this as a starting point to pictorially represent the blend of present and past and to emphasise how important this link is.

Danny comments: “The colour palette offered by the hotel guided the initial direction of exploration, with the shadowgraphs on display around the hotel sparking the idea to use negative space and multi-layer imagery. The bold and vibrant colours already in use in the hotel highlighted that colour was of great importance. Also, I really enjoyed meeting people. The people I met pointed me in new directions and told me things I wouldn’t have known otherwise - they truly affected the outcome of the project.”

Tom Rowntree Vice President Brand Management Luxury & Upscale Brands, Europe, IHG said, “The Hotel Indigo student programme in partnership with the World Photography Organisation is set to change the future of some of the UK’s brightest talents. The work we’ve seen already from our eight finalists has been spectacular and boldly depicts the essence of Hotel Indigo, which is to present the hotel as a valuable and contributing part of its neighbourhood. It has been an honour to see our hotels working in partnership with the country’s up and coming photographers. It will be a challenge selecting the commission winner.”

The Hotel Indigo brand was launched in the United States in 2004, making it one of IHG’s youngest brands. Hotel Indigo offers guests the individuality of a boutique hotel but with the benefits and reassurance of a big hotel company.

For further information or bookings, please visit www.IHG.com/hotelindigo

News & Events

THE ROYAL HORSEGUARDS HOTEL & ONE WHITEHALL PLACE Perfectly situated on the banks of the River Thames, right in the heart of the Capital, opposite the famous London Eye stands this beautiful Grade I listed building that accommodates the 5-star Royal Horseguards Hotel and One Whitehall Place.

The hotel maintains its essential British character and pedigree, yet offering the latest in state of the art technology, many of the rooms offering beautiful river and city skyline views. Offering a wide range of dining options and places to relax, the Royal Horseguards Hotel is a true hidden gem.

For larger events and private dining, the adjacent One Whitehall Place, a Grade I listed venue, is perfectly equipped for dedicated conferences and events, able to cater for up to 350 guests. Part of the same magnificent building as the Royal Horseguards Hotel, it shares the hotel’s very special ambiance and is steeped in unique history, giving any event that might be organised a real sense of occasion.

The Royal Horseguards Hotel & One Whitehall Place 2 Whitehall Court, London, SW1A 2EJ Tel: 0207 839 3400 www.theroyalhorseguards.com

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Property

DRIVING CUSTOMER SERVICE IMPROVEMENTS FOR CONVEYANCERS We know the importance of customer service to mutuals and conveyancers, so we are delighted that conveyancers have once again recently highlighted the exemplary customer service and quick turnaround times from the water companies that provide the Law Society’s CON29 Drainage and Water Enquiry in England & Wales.

Over 150 conveyancers were independently surveyed across England about the order process and customer service received when purchasing the CON29DW during the house purchase cycle. Once again, over 97% confirmed the search order process either ‘met or exceeded their expectations’, with a rise of 3% in conveyancers who thought the service had improved since their last search.

John Pickford, Head of Thames Water Property Searches and Chair of Water Industry Property Information Network (WIPIN) commented, “We know that customer service is critical in the conveyancing world, and this survey really helps us to analyse our processes and service. Undertaking the survey as an industry allows us to benchmark our service nationwide, and ensure we

can target industry improvements where they will really benefit the homebuyer.”

Following the inaugural survey in November 2012, WIPIN, which comprises the water companies who provide the CON29DW, commissioned the survey to run bi-annually. This second survey, undertaken in April/May 2013 revealed a significant 5% increase from 2012 in respondents who would speak highly of their CON29DW provider without being asked. “This demonstrates a genuine intent across the water companies to continually improve service” Pickford went on to say.

For more information about the CON29DW or to find your CON29DW provider, visit the website www.con29drainagewater.co.uk. To find out more about the full range of searches available from Thames Water Property Searches, visit www.thameswater-propertysearches.co.uk or call 0845 070 9148.

COMPLICATED LEASEHOLD PROCESS MADE EASIER WITH NEW STANDARDISED FORMAT SAYS LAW SOCIETY A new standardised procedure for buying and selling flats will make property transactions much easier said the Law Society.

The Leasehold Property Enquiries Form, or LPE1, which was launched on 10th October 2013, is a standardised questionnaire for the industry, and was developed by the Law Society and other major trade bodies*.

It will capture in a single format for the first time, information about a property that is held by landlords, management companies and managing agents - for example, information about ground rent and service charges. Using the LPE1 form will make it easier for solicitors to advise clients because they will receive information in a standardised and consistent format.

It will not be mandatory to use the form but solicitors will get quicker answers by using it, especially if dealing with one of the larger managing agents who have IT systems designed to provide answers based on the LPE1 format.

Law Society Deputy Vice President Jonathan Smithers said: “Having a standardised format will be advantageous to sellers, buyers, solicitors and conveyancers dealing with leasehold property.”

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“It will not only bring clarity to the part of the procedure that deals with obtaining necessary leasehold information but may also clarify some issues relating to time and cost. It will also mean that everyone becomes familiar with one form, inevitably making the process more cohesive.”

“The Law Society will make every effort to secure the support of key stakeholders, including the Government, to make this scheme a success.”

* The new, industry created and approved Leasehold Property Enquiries Form LPE1 was developed by The Law Society, The British Property Federation (BPF) and The Society of Licensed Conveyancers (SLC), The Royal Institution of Chartered Surveyors (RICS), The Association of Residential Managing Agents (ARMA), The Association of Residential Letting Agents (ARLA) and The National Association of Estate Agents (NAEA). It will be rolled out to members of these organisations, with the overall concept supported by The Council of Mortgage Lenders (CML) and The Building Societies Association (BSA). The LPE1 was developed in conjunction with Move with Us.

Property

ELECTRONIC OFFICIAL SEARCHES RISK REDUCTION AS STANDARD Law firms, licensed conveyancers and legal services businesses are under ever greater scrutiny to meet strict compliance standards and reduce exposure to risk. It has often been the basics or routine processes that are taken for granted. Perran Moon, Marketing Director of SearchFlow, discusses how property searches shouldn’t be an area where your guard drops.

Information is the lifeblood of the client relationship to the lawyer or conveyancer – it is what drives the understanding and direction in a property transaction. This isn’t just a conversation about progress. It is about the clarity of the property information and the quality and accuracy of the advice given by the solicitor or conveyancer. This is what will drive informed decisions and reduce risk for the client and the practice.

The need to manage down risk is manifest, not least to satisfy the scrutiny of lender panels, but also to secure professional indemnity renewals at an affordable rate. To meet CQS and SRA compliance, you must have effective measures in place to control fraud and minimise error, together with a clear client care charter and documented processes that ensure you treat clients fairly and transparently.

The natural assumption with searches is that the information comes from the same source – the local authority, and that there is recourse for non-local authority search providers through the provision of the Search Code.

However, it is dangerous to assume that all search companies gather, record and reproduce the same information as each other, or follow the same processes in a consistent way. Too many traps await the unwary solicitor or conveyancer on matters such as rights of way, adopted roads, private or shared drains. It is important to understand the origins and the assumptions made with the data you receive from your current search company.

Translating the information received from the Local Authority so that it fits the operational efficiencies of the search companies is a key risk area. Are search companies getting all of the information that they should be? If not, what assumptions are they making? In order to meet turnaround times, are they shortcutting processes because there is a pressure to return something, even though Environmental Information Regulations mean that a Local Authority has up to 20 days to provide information which may not be readily available?

Local Authorities across England and Wales are increasingly looking to maximise efficiencies and reduce processing costs, in the light of ongoing austerity measures imposed by central Government. Many are now looking again at the benefits of curating this information increasingly on an electronic basis to maintain the highest quality standards.

The good news for solicitors or conveyancers is that the existing, highly scalable National Land Information Service (NLIS) platform supports Local Authority requirements to disseminate source data electronically in an efficient and highly secure manner. Every Local Authority in England and Wales is connected to the NLIS Hub. By simply connecting from a PC via one of the NLIS channels, of which SearchFlow is the largest and an original partner, conveyancers can be assured that the electronic CON29 data they receive is pure, complete, current and direct from an authoritative source.

Sue Dixon, local land charges manager at Wakefield Council, who have won three awards over the past five years for local land charges customer service and performance, commented: “NLIS is an excellent example of a public-private partnership working efficiently to serve the conveyancing market. Blending timely and authoritative data from local authorities and other data

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providers, with specialist client management expertise from the NLIS Channels, gives conveyancers a unique and reliable route to qualitative data.”

NLIS was established to create efficiencies in the conveyancing information chain from the source at the Local Authority to the conveyancer and on to the client – to create faster, smoother and more certain property transactions. 13 years since launch, it has delivered more than 21 million searches with minimum fuss and maximum quality and accuracy.

Wrapped around the NLIS operation is the further security and reliance of regulation, managed by Land Data. They work closely with The Local Land Charges Institute (LLCI) on quality standards and enhancements to service and security, managing data and updates through the NLIS Hub to the channels. The regulations and strict licence agreements which the NLIS channels operate under protect the conveyancers, clients and data providers.

This goes to the heart of what a regulated search really means.

The CON29 Official Search has a defined Law Society standard which is unambiguous, consistent and reliable. By structuring answers into the CON29 format, Local Authorities can be sure that the information they release is best represented to the consumer – without manual intervention, interpretation or transcription, which could give rise to costly human error. Land Data regulation also extends to how the NLIS channels operate, advise and maintain service standards.

Boundary plot accuracy is also crucial here. SearchFlow uses Ordnance Survey Mastermap as standard for all of its search requests into Local Authorities. This is the baseline standard for Land Registry plans and the accepted standard by local land charges team to identify plots, land parcels and the essential detail needed to deliver back accurate search data. You need to question whether your search provider meets these standards.

Other searches purport to be regulated and there is strong reliance and consumer protection from The Search Code, but the difference is in the level of reliance. Local authorities carry unlimited liability and are the known source whereas smaller search businesses could mean a step into the unknown – a key risk for solicitors or conveyancers concerned about risk reduction and treating clients fairly and equitably.

Maintaining a high, consistent degree of data accuracy and currency, sourced with no manual intervention can only be good to mitigate exposure to risk and flak from your client after completion.

To ensure the CON29 meets changing due diligence needs, consultations are ongoing about updates to required questions and data sources. The new format will require more area specific information and Local Authorities are looking to how to combine these registers electronically as an obvious management route. NLIS will play a central role in how this is disseminated in the market, as greater requirements for more search data will ensure that more information held by Local Authorities will be more efficiently exported.

So, given all of the compliance pressures, competitive threats and indemnity risks circulating around conveyancing – one readily available safeguard comes in the form of the official local authority search. It really is protection by design – delivering consistent quality every time, so you can focus on your client and your practice management to secure ongoing business growth. www.searchflow.co.uk

Conference

THE EXPERT WITNESS IN

“OF SILTING HARBOURS AND HOT-T

The Expert Witness Institute (EWI) returned for its 13th year to the excellent facilities of the Church House Conference Centre next to Westminster Abbey. Over 150 experts and members of the legal community participated in a day full of legal updates, expert training, practical information, workshops and question and answer sessions.

The Conference was really about three major issues of the day: the Government’s defence of its austerity policies; the serious effect that the policies are having within both the world of the expert witness and the world of the lawyer; and the future development of the EWI under the new leadership of Sir Anthony Hooper who has succeeded James Badenoch QC.

The Conference, chaired by Amanda Stevens, reviewed recent legislative changes (Jackson reforms/LASPO bill) to anticipate how these issues will shape the legal landscape with its inevitable effect on the role of experts which I believe was of great practical benefit to the attendees that I spoke to.

OLIVER HEALD: FROM SILTING HARBOURS TO HOT TUBBING

Speakers included a keynote speech from the Solicitor General, Oliver Heald QC MP, and an inaugural address from Sir Anthony Hooper as the new chair of the EWI. Other contributors were: Michael Turner QC, Simon Reevell MP, Dr Heather Payne (Paediatrician, member of Family Justice Council), District Judge Suzanne Burn, William Featherby QC, Dr Harry Brunjes (EWI Fellow), Mark Stobbs (The Law Society), Steven Green (Irwin Mitchell) and Dr Chris Pamplin (Editor JS Publications).

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The Conference began with the keynote speech from genial Solicitor General, Oliver Heald QC MP. His speech was sub titled “The shifting legal landscape and the imminent effect on solicitors and their experts”.

Heald paid tribute to the work done by expert witnesses in civil cases, criminal cases and family cases and the work of the Expert Witness Institute in supporting that work and maintaining standards. “Change is taking place in the civil and criminal justice systems”, he said and “crime is falling… public budgets are lower… there are changes in legal aid… and there have been changes in some of the Procedure Rules”.

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TUBBING… AND MUCH, MUCH MORE” He continued: “Many of you may feel downhearted by these changes but I think that there are many reasons to be optimistic about the future of expert witnesses and the lawyers who instruct them. The independence and expertise of expert witnesses in the United Kingdom are great assets to this country. The English legal system and the lawyers that work in it have an international reputation for fairness and excellence. We are a hub for international law and lawyers, and for the settling of commercial disputes. Expert witnesses have a vital role to play in many of these sorts of cases.”

At the beginning of his speech Oliver had explained the historic background of the role of the Solicitor General over the centuries. He then recalled the history of expert witnesses as a long and distinguished one. Readers of ‘The Report’ will be interested to hear that traditionally it’s said that the first person to give evidence as an expert witness in legal proceedings in an English court was Charles Smeaton, a civil engineer, who gave evidence in 1782 about the silting up of Wells harbour in Norfolk (hence the silting issue – we will get on to the hot-tubbing evidence in a minute!).

Heald explained that the number and types of expert witnesses in criminal proceedings have increased – accident investigations, facial mapping and, of course, the increase in the use of DNA evidence. All these – and many others – play a large part in many criminal trials. “Experts have a particular responsibility for making difficult issues and concepts understandable – this is especially so in criminal cases where juries have to understand complex issues in cases in the Crown Court. I know that there is to be a session on the expert witness and fraud – a complex issue which juries and lawyers! have to understand if defendants are to have a fair trial. Expert witnesses making these issues understandable to lawyers, judges and juries play an important part in the administration of justice”. In fact the afternoon session on fraud was very well attended.

Heald continued, saying that “the quality of the expert witness can have a decisive effect on the trial. Their evidence can lead to the conviction or acquittal of the Defendant. This is why the independence of the expert is important”. Experts quite properly disagree but their duty to the Court means that their loyalty should not be in question.

CIVIL AND FAMILY PROCEEDINGS Then, in 1901 Scotland Yard formed its first fingerprint branch and in 1905 Albert and Alfred Stratton were convicted of murder, in part because of Alfred’s fingerprints on a cashbox from which money had been stolen at the time of the murder. The police officers giving evidence about the fingerprint were crossexamined about it. The Defence called their own expert, a certain John George Garson, a doctor, to deal with the fingerprints. He was in agreement with some parts of the police’s evidence, but not with all of it. He did not agree that he could be satisfied that the fingerprint belonged to Alfred.

He was cross-examined by the Prosecution. He said that he had written to the Director of Public Prosecutions and offered to give evidence for the Crown because he felt that how the police were using fingerprint comparisons in this case could bring the system into disrepute.

Whilst there is no transcript of the questions and answers of the court hearing, the records that we do have set out the witness saying explicitly (perhaps because his independence was challenged) the following: “I am an independent witness. If I had had to give evidence for the Treasury” (as the prosecution was often called in those days) “it would have been precisely the same. I have given evidence for the Treasury in many cases, and I have had to give reports to them which have altered totally their procedure.”

Heald described this as an early illustration of something which is exceptionally important – the independence of the expert witness with an overriding duty to the Court and not to those who are instructing them. Those who pay most definitely do not ‘call the tune’ so far as expert witnesses are concerned.

Heald then turned to procedural matters saying that “the Criminal Procedure Rules, the Civil Procedure Rules and the Family Procedure Rules are all clear – the duty to the Court overrides the duty to the person that instructs you. That must be right. The outcome of any judicial process should be the doing of justice. Expert evidence allows the Court or the jury to reach decisions about things that are likely to be outside their area of expertise. It is right that the expert’s duty is first and foremost to the Court”.

“In times of change, expert witnesses cannot be immune from this process and the changes are affecting all participants in the justice system. Public funds are being reduced in the justice system in the same way as they have had to be in other areas of government; the costs of proceedings more generally are under ever greater scrutiny. This is unavoidable. The challenge is to see how justice can continue to be done in this changing environment”.

FEES Heald then looked at fees which remained the issue of the day, saying that “changes to legal aid expert witnesses’ payments will have impacted those undertaking this important work”. I detected a buzz of strong interest at this point! He went on: “First, a new set of fixed fees and hourly rates was introduced in late 2011 that codified for the first time the rates that could be paid to individual expert witness types. These codified rates were based on the benchmark rates that the then Legal Services Commission confirmed were routinely being paid to specified experts at that time, reduced by 10%, in line with the general reduction applied to all legal aid rates following the first legal aid reform consultation”. continued

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Heald explained that changes in how and when expert evidence is obtained and presented have taken place in family, criminal and civil proceedings. The movement therefore was towards reaching agreement as far as possible so that the issues for the judge or the jury to decide would be narrowed. “There are likely to be cost savings in all of this but it is also in the interests of justice – which must be everyone’s consideration. It serves nobody’s interests if litigation gets delayed by irrelevant issues. It is certainly not in the interest of the litigant in the family court wondering whether they will get their child back; to the applicant in a personal injury claim wondering whether they will get compensation; to the victim in a criminal trial wondering if their attacker will be convicted, or the innocent defendant wondering if he will be convicted”.

“In criminal proceedings”, he said, “the Criminal Procedure Rules and the overriding objective have led to the narrowing of issues and the focusing of expert evidence on the relevant issues”.

In family proceedings, the Government is working to make more appropriate use of experts and trying to raise quality and standards of expert reports. One issue raised by the Family Justice Review was the fact that experts were sometimes unnecessarily and inappropriately instructed in family proceedings leading to increased complications and delay.

“Clearly”, he said “this could create uncertainty for families, especially children whose interests should be at the heart of family proceedings”. Heald mentioned that changes had been made to the Family Procedure Rules, being a precursor to some of the provisions of the Children and Families Bill currently in Parliament with the aim of making more appropriate use of experts to reduce delay in family proceedings.

“There have been a number of approaches to streamlining expert evidence in civil proceedings. The CPR restricts expert evidence to that which is reasonably required to resolve the proceedings and expert evidence can be restricted by the Court.” Again, he reminded us that these are subject to judicial oversight and in the interests of justice.

“The Bill” he said “reinforces the Rules to ensure that expert evidence should be commissioned only where necessary to resolve the case. The court should seek material from an expert witness only when that information is not available, and cannot properly be made available, from parties already involved.

Independent social workers should be employed only exceptionally”.

“Change is often difficult but these changes are fair” he said (to silence). “The requirement that the expert evidence must be necessary to assist the Court to resolve the proceedings justly safeguards against miscarriages of justice. The test to adduce expert evidence appropriately secures the need, in the circumstances of each case, to balance the interests of the parents and those of the child and meets the requirements of article 6 of the ECHR”. And Heald re-iterated that it will continue to be for the judge to decide whether to give permission for expert evidence to be put before the Court in line with the test.

THE JACKSON REPORT When dealing with the response to the Jackson report on civil litigation costs, the Government has “sought to ensure that justice continues to be done but that claims are proportionate and that the costs are not out of proportion to the issues involved”. He continued: “Whilst the report was specifically looking at the costs of litigation, as Sir Rupert pointed out in his report one of the principal complaints about expert witnesses was that many expert reports were too long and often addressed irrelevant issues”.

HOT-TUBBING One significant measure which has been introduced and raised

by Heald is the issue of concurrent expert evidence – piloted in Manchester from December 2010. Let me explain what this means as ‘hot-tubbing’ was frequently mentioned during the conference: it envisages the judge getting all the experts together and asking questions of them about issues in dispute.

Whilst the parties can also ask questions, in general a full crossexamination or re-examination is neither necessary nor appropriate. This has been described as a major change but, said Heald “there is no reason why such a procedure should not help the judge to decide which expert evidence to rely on. It is early stages and the procedure is still perhaps most well-known by its slang name – coined I think in Australia – “hot-tubbing”!”

But it is not just domestically that experts can play a part. Many expert witnesses are outstanding in their fields and in demand all over the world. Legal services have made a major contribution to UK exports over recent years.

Oliver Heald concluded by saying: “I hope I have made clear the changes are also in the interests of justice. So far as expert evidence is concerned we have tried to ensure that expert evidence addresses the important issues in the case and serves the interests of justice. Those expert witnesses in this room today and those lawyers who instruct or call them to give evidence play your full part in that process”.

There was significant applause and I believe his speech was greeted with a certain respect although, as the day progressed, the issue which emerged on everyone’s mind was that of fees and the subject was dealt with in detail by Mark Stobbs who many will know from his time at the Bar Council and now at the Law Society. Stobbs was highly critical of the flat fee for either a

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plea or a trial which takes no account of how much time and effort has been expended on the presentation and research for a particular case. Needless to say, when I went around a number of attendees with a straw poll, the Stobbs stance was very popular and there were clear concerns about current government policy towards the provision of legal services.

However, Oliver Heald was not present to make friends but more to explain what is currently being done to deal with the deficit and I believe he made a limited sale of his policies which are hurting both experts and legal practitioners.

SIR ANTHONY HOOPER Sir Anthony gave his inaugural speech to the EWI and it was very well received. In a wide ranging speech, he set out two challenges for the EWI from his experiences of some of the very many cases he heard whilst on the bench: expansion and accreditation. With a flat 20% reduction in fees across the board and the Government’s refusal to accept submissions from the EWI, Hooper set out what he had in mind for the future.

Expansion of the EWI into new member areas would make the EWI grow and his eye was firmly set on the forensic crime area.

“EWI has run some excellent courses”, said Sir Anthony, and he put forward what turned out to be a ‘not so new’ view on the EWI assessing the work of experts on a day of assessment.

After Sir Anthony there was a panel discussion and a ‘Q & A’ session squeezed in to gauge reaction to the way forward for EWI. There were detailed breakout sessions and an excellent session from District Judge Suzanne Burn. Let me leave the final word with the retiring chair of EWI, James Badenoch QC, who told me: “If criminal work is not done by highly competent, honourable and totally impartial people, then the fabric of society is in danger. And you will not attract those people who have these qualities whilst the fees paid are so grossly inadequate.

Where are tomorrow’s senior counsel and judges experienced in criminal work to come from?” And he concluded by saying something we all recognized after the day at Church House – “the pool of experts will be inadequate”. Very much food for thought after a most interesting day with the experts whom we often rely so much on!

PHILLIP TAYLOR MBE RICHMOND GREEN CHAMBERS

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Professional Practice

TIMELY OUTSOURCING GUIDE HELPS LAW FIRMS TO WORK SMARTER In an effort to introduce legal practices to smarter and commercially focused ways of working, Quill Pinpoint has published a guide on how outsourced cashiering works.

As the profession continues to suffer mass redundancies and law firm closures, as well as face increased competition from the growing number of ABSs and newly merged adversaries, the handy guide aims to instruct the uninitiated on the merits of outsourcing as a means of surviving and thriving in a challenging marketplace.

The guide explains in layman’s terms the procedure for outsourcing legal accounts as a simplified 5-step process, along with the extensive range of benefits to be gained from alleviating the burden of this heavily regulated back office function. Quill Pinpoint has over 20 years’ experience in outsourced cashiering.

Their expertise brings a tried-and-tested cashiering solution direct to law firms.

Benefits cited in the report include higher earning power by refocusing on fee earning and marketing; financial savings with less manpower and infrastructure requirements; healthier cash flow resulting from up-to-date bookkeeping; business continuity and disaster recovery planning with continuous cashier support and 24/7 software availability; streamlined annual accounting with a current set of accounts and privileged accountants access to your data; and automatic compliance as the cashiering service adheres to the Solicitors’ Accounts Rules and other regulatory guidelines.

Julian Bryan, Managing Director at Quill Pinpoint, explains how the “difficult market conditions are hitting law firms hard”.

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“In this harsh economic climate, firms are finding it difficult enough to stay afloat, let alone make a profit”, Julian adds.

“We’ve published the guide now because practices need all the help they can get, and may not yet have considered the possibility and advantages of outsourced support. Outsourcing is a survival strategy”.

Julian admits to having an ulterior motive for the guide’s publication – dispelling any myths about outsourcing being an expensive and complicated solution.

“The guide gives me the opportunity to set the record straight”, states Julian. “Contrary to often-held beliefs, outsourcing is much more cost effective than running an in-house cashiering team.

The monthly fee is based upon activity levels on a pay-as-you-go contract. Moving to an outsourced environment couldn’t be easier. There’s no software to install locally and firms have their own assigned cashier so it’s a friendly service. If practices are just setting up in business or their cashier has recently resigned, they should give us a call”.

The guide is published on the Internet Newsletter for Lawyers website at http://www.infolaw.co.uk/newsletter/2013/07/quill-pinpointhow-outsourced-cashiering-works.

As well as its Pinpoint Interactive legal accounts outsourcing service, Quill Pinpoint offers a payroll service for companies who want to reap the full benefits of outsourced support.

If you want to find out more on Quill Pinpoint’s products and services, get in touch by email at info@quill.co.uk, call 0161 236 2910 or visit www.quill.co.uk.

Professional Practice

SET YOURSELF APART FROM THE COMPETITION AS A QUALIFIED AND COMPETENT WILL DRAFTSMAN The last couple of years have seen the tide come in and go out again on the regulation of will writing. Regulation of Will Writing (alongside Probate and Estate Administration) seemed a certainty but, in May 2013, the recommendations of the Legal Services Board were rejected by the Lord Chancellor and the Ministry of Justice. Most stakeholders in the will writing world felt a sense of injustice. While the quality of provision will undoubtedly continue to be scrutinised, the future for the regulation of will writing is currently unclear.

Amidst this uncertainty, and in the absence of regulation, what is there to differentiate the quality provider of will writing services from the incompetent in the eyes of the client? The answer has to be training, qualification, expertise and professionalism.

Now, more than ever, clients need properly qualified and capable will draftsmen to prepare their wills. Family structures are increasingly complex and private wealth continues to grow significantly. Clients require high quality technical wills from professionals who understand the law. They require a service which meets the highest levels of competence and professional standards. But is technical competence alone enough? Even well drafted wills may not reflect the circumstances or real needs of the individual unless the will draftsman possesses the breadth and depth of knowledge to ask the right questions and to advise

the client appropriately. To be a truly “trusted advisor” the practitioner needs a holistic knowledge across a range of technical areas and the client-facing skills to apply that knowledge in the right way.

The STEP Advanced Certificate in Will Preparation is the only advanced specialist qualification in the will writing field. Taken by TEPs, solicitors, barristers and professional will writers, this qualification is the benchmark for what you need to know and be able to do in order to demonstrate you are the expert, professional quality service provider in this field.

The Advanced Certificate is delivered through a blend of distance-learning and three face-to-face workshops in March, April and June 2014, in London. Assessment is two-fold comprising a workshop-based task and a three hour closedbook examination. The exam will take place on 14 July 2014.

Enrolment is now open at http://www.step.org/stepadvanced-certificate-will-preparation-england-and-wales

STEP ADVANCED CERTIFICATE IN WILL PREPARATION Set yourself apart from the competition as a qualified and competent will draftsman.

ADD VALUE TO YOUR BUSINESS WITH THIS PROFESSIONAL QUALIFICATION

No for w ope en n in L rolmen ond t on

THIS ADVANCED CERTIFICATE IS A GROUND-BREAKING QUALIFICATION, BOTH PRACTICAL AND UNDERPINNED

BY ACADEMIC RIGOUR. AS SUCH IT CAN BE INTEGRATED INTO YOUR BUSINESS SOLUTIONS STRAIGHTAWAY.

COMPLETION OF THIS ADVANCED CERTIFICATE WILL: • Provide you with a recognised qualification in this field.

• Enhance your ability to give holistic advice to clients as a “trusted advisor”.

• Develop your own technical competence.

• Support you in building your reputation and business as a will draftsman in particular and in enhancing your private client services more generally.

Completion of the Advanced Certificate enables you to meet your annual STEP, SRA and ILEX CPD requirement.

View the syllabus at www.step.org/pd or www.cltint.com/stepcertwillprep

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Professional Practice

HOW HAS YOUR COMPLIANCE JOURNEY BEEN SO FAR?

It has now been two years since the latest regulatory journey started for law firms, but for many it has been a very bumpy ride!

The current regulatory journey started for many firms on 6 October 2011, with the introduction of the new SRA Handbook and Outcomes Focused Regulation (OFR), but we have seen examples of many firms delaying their journeys, or even worse, not starting them at all!

The 1st January 2013, saw the formal appointment of new compliance officers (COLP/COFAs), which for many firms was just a continuation of their compliance journey as their compliance officers had taken up the new roles immediately after nomination in mid-2012. Other firms’ journeys only really started in January because they thought that OFR and the SRA Handbook only took effect once the COLP/COFA regime had come into force, and had therefore done little or nothing to move their compliance processes forward!

More alarming is the fact that a number of firms appear not to have started their compliance journeys at all thinking the SRA has bigger fish to fry and would take an age to catch up with them; the SRA may have its hands full but the likelihood is that it will be calling sooner rather than later, whether by email, telephone or a visit!

There are numerous areas currently under review by the SRA, for example, PI firms affected by the referral ban, legal aid firms that could be affected by government cuts, financially unstable firms, etc., so most firms could have contact with the regulator at some point in the near future!

It would be wrong of firms to think that the only organisation that is concerned about their risk and compliance is the SRA; there are organisations that are far closer and that can pack a deadlier punch, and they are the indemnity insurers! Without professional indemnity insurance a firm cannot trade and the only way it can get insurance is to show it is a risk worth covering and engages in the regulatory regime under which it operates.

Financial instability is probably the biggest issue currently facing firms and having seen a number of large practices collapse, or be subject to intervention, it is very much an issue that has now hit home as being one that could affect any size of firm. The SRA is clearly concerned that some firms are not being as well run as they should be and many are currently under close scrutiny. COLPs and COFAs should be taking the lead in protecting their firms from financial risks and should, where appropriate, be getting partners to change their ways if they could be regarded as “toxic” by the SRA! These “toxic” partners are regarded as the ones that keep financial information to

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themselves and won’t change what are seen by the SRA as bad behaviours, including, making payments to partners irrespective of cash in the bank, all net profits being drawn with no reserve pot retained, short term borrowings to fund partners’ tax, etc.

Embedding an effective risk culture within some firms is clearly a problem for some COLPs and COFAs, mainly because other staff and partners don’t see compliance as being their problem, but firms cannot afford to have their people saying, “compliance is nothing to do with me, speak to the COLP”, or “what is a COLP?”; compliance is a team game not just one for certain individuals!

Compliance training for all staff is another issue that COLPs and COFAs need to consider, as many non-solicitors seem to be totally unaware that the code of conduct also applies to them, and that they could face disciplinary action and sanctions for failures just like their solicitor counterparts; even some solicitors are unaware that the code applies to non-solicitors as well as them!

Many employees also seem to think that the code of conduct only applies to them during working hours, and therefore believe that what they do in their spare time is nothing to do with their firm or regulators, but this is clearly incorrect, as issues of integrity and bringing the profession into disrepute can arise away from the office. The rules apply to everyone, although some will apply more to some than others depending on their roles, and those thinking their COLP/COFAs are the only ones with their heads on block need to think again!

One of the real concerns for COLP/COFAs has been the conflict they may face when having to consider reporting to the SRA, or getting the support they need from others within the firm, and I am aware of a number of COLPs that have threatened to resign from their positions to get their way or what they need to do the job; firms need to realise that COLP/COFAs can hold a lot of power because if they do resign their positions due to a lack of support, the SRA will want to know on the appropriate form!

One piece of good news for firms is the SRA’s decision to remove the need to report non-material breaches on their annual information return; firms will still be required to record such breaches just in case the SRA asks to see them and to enable them to track trends that could lead to a non-material breach becoming material and need reporting.

The compliance journey may be bumpy at times, but firms must accept that it is a journey they must take, and take quickly!

BRIAN ROGERS, DIRECTOR OF REGULATION AND COMPLIANCE SERVICES, RILIANCE SOFTWARE.

Professional Practice

EDISCLOSURE –

GETTING CONTROL IN AN EDISCLOSURE CASE IT Group UK Ltd were instructed in a litigation matter that became a David and Goliath style case. A small engineering business from Northern England, found themselves up against it when a relatively minor dispute escalated.

The company had instructed their solicitors, a local firm to help deal with a relatively minor commercial dispute with a large US based business. This involved an alleged non-payment of deferred income but, as this case ran its course, they were hit by a further claim alleging that they had broken a noncompetition agreement between the two companies.

Because of previous agreements, this became an IP case for claimed IP theft and breach of a commercial contract not to compete. The claim was that the original design documents had been used competitively, in breach of the agreement. The UK company now found themselves facing a dispute headed by a large US law firm and assisted by an international eDiscovery business.

From the outset the US law firm sought clarification concerning the electronic documents that were available for different aspects of the case. They demanded that certain defined searches of the electronic documents should be carried out.

This was easier said than done, because large numbers of the electronic documents were stored on a wide variety of different media. In addition, to provide searches of this type would require a document management system, which the client did not have.

Pressure was being applied by the other side, demanding clarification of exactly what documents were available for certain aspects of the case. Having found additional documents, ITG now responded to these search requests and audit procedure requirements.

As the eDisclosure process had itself become contentious and a potential weapon in the course of the litigation, ITG carried out the key word search requests and provided the document numbers to the other side. Each request was now signed off by ITG with an Expert Witness Statement, confirming that the search had been properly carried out.

In this way ITG was able to establish that the documents had been searched properly and that, even if the other side had expected more documents, these just did not exist. The case now moved forward.

IT Group provides a broad range of consultancy services including Expert Witness, eDisclosure, Forensic Document & Data Recovery, Insurance Assessment, Forensic IT/telecoms/Electrical systems examination. www.itgroup-uk.com

When this became clear the US firm obtained an order to capture the electronic documents, although they were not allowed to interrogate them. However, they were able to audit the search process and this in itself became a source of dispute, as the US firm were not happy with the procedures being carried out and the results obtained. This rapidly became a further weapon in the dispute.

It was at this point that IT Group UK Ltd (ITG) was recommended to the solicitors involved and were able to start addressing the issues raised by the eDisclosure.

A review of the whereabouts of the potential documents uncovered a wide range of sources. These included PCs, old tape backups from servers, old CDs and DVDs and imports of mailboxes from old email servers. Further documents were located by ITG from these sources.

The electronic document collection produced in the region of 2 million plus documents, which comprised of the ubiquitous emails, but also CAD drawings and designs, with various images and photographs, which needed to go through an OCR process. These had gone backwards and forwards between the company and its customers and so key dates were agreed, which culled the document set down to some 40,000 documents.

A set of search terms were agreed and applied, but these delivered fewer than expected results. This caused the US lawyers to challenge the number of documents that had been found. They asked for information about the searches, for example, the number of documents searched, a list of the document repositories, the number of documents found within certain date ranges and more.

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Professional Practice

WHEN PROBATE PROPERTIES DRAIN YOUR RESOURCES, FINDING A TRUSTED EXPERT TO HELP WILL SAVE TIME Dealing with the properties left in your charge as part of a deceased person’s estate is an inevitable task. Unfortunately, the homes left uninsured and unoccupied not only present a potential drain on estate funds but also on your time. If there are no family members to look after the property, the responsibility will probably fall to you. With so many factors to consider and services to choose from, you could spend hours calling around and comparing quotes for services for a property that you have never even seen.

Recognising how laborious this work can be, we have developed a range of services to support the legal profession. Fraser & Fraser’s Property Management Services are designed to share the burden of the extra work and provide solutions for property valuations and sales, clearance and cleaning, maintenance and security, and empty property insurance.

One of our recent cases demonstrates how Fraser & Fraser assisted with the kind of property-related problems that you might regularly encounter on both testate and intestate estates*.

When Eric Price died without leaving a Will, he left behind a close circle of friends but no known family to help administer his estate and take care of his property. The researchers set about tracing Eric’s missing family members, locating those entitled to inherit his intestate estate. The missing heirs on this occasion

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were cousins, all of whom had not known the deceased and lived several counties away.

Locating the family was one giant hurdle out of the way in this troublesome case, but in order to realise the value of the estate, Eric’s property would need to be sold. Fraser & Fraser managed this time consuming task resulting in a streamlined process.

Throughout the lifetime of the case Fraser & Fraser assisted the administrators by arranging specialist insurance for the vacant property. We organised the clearance and cleaning of Eric’s home, including the removal of some memorabilia for safe keeping until it could be passed on in line with Eric’s wishes.

Although many companies in the marketplace provide property services, there are clear advantages in using a firm that understands the estate administration process and the special requirements that often come about as part of these cases.

Fraser & Fraser not only has this experience but is dedicated to sharing its expertise. * Minor details changed because this case is on-going.

To find out how we can help, call 020 7832 1430 or email legal@fraserandfraser.co.uk

Legal Aid

UPDATE ON CRIMINAL LEGAL AID 1 On 16 October, the Law Society Council resolved to: 1.1 Note and support the concessions and amendments to the Government’s initial proposals that have been achieved via the Society’s engagement with the MoJ. 1.2 Note that the Society opposes uneconomic or inappropriate fee structures.

2 This short paper summarises the presentation given to Council. It sets out what has changed between the April and September consultations as a result of the Society’s engagement, the detail of the new proposals and the Society’s position going forward.

7.2 Duty contracts tendered on capacity and capability, not price – Duty solicitor contracts will be awarded on the basis of an assessment of a firm’s capability and capacity to deliver.

7.3 Contracts across 62, rather than 42, procurement areas with the final number of contracts to be decided on the best available evidence – the maximum possible number of contracts compatible with financial viability will be awarded subject to independent empirical research.

7.4 Timeframe extended to summer 2015 – Implementation rescheduled to aid transition.

THE MOJ’S ORIGINAL PROPOSALS 3 On 9 April, the MoJ presented a consultation document proposing a radical restructuring of criminal legal aid procurement. That document proposed: 3.1 Complete removal of client choice – clients allocated to a duty solicitor and expected to remain with that solicitor for the duration of their case.

3.2 Just 400 contracts covering 42 procurement areas – a small number of contracts covering geographically large Criminal Justice System Areas.

3.3 Contracts awarded on the basis of a price competition, capped at 17.5% below present rates – firms forced into a high risk reverse auction for contracts, with the risk of a ‘race to the bottom’ to secure a contract.

3.4 A very short timeframe with contracts set to begin in September 2014 – Just three months planned between contract award and contract start.

APRIL – SEPTEMBER: LAW SOCIETY ENGAGEMENT AND THE MOJ’S REVISED PROPOSALS 4 Prior to the consultation launch the Lord Chancellor made his preference plain: “We must consider how to achieve best value for money in the way we procure legal aid. We have already made clear our intention to introduce price competition in the criminal legal aid market.”

5 Announcing the second consultation in September, he said: “We have been involved in detailed negotiations with the Law Society. As a consequence of these discussions… we have designed a model that does not include the evaluation of tenders on price.”

6 The Lord Chancellor’s movement was the result of intensive and constructive engagement between the Society and the MoJ. Acknowledging – though not accepting – that there is at present no consensus in any political party to ring-fence legal aid spending the Society sought the best achievable alternative in the circumstances.

7 The Society presented an alternatives document and subsequently held discussions with the MoJ. The September consultation is the outcome of those discussions. It means: 7.1 Client choice retained – Clients free to choose their legal representative. All firms who meet a basic quality threshold able to undertake unlimited own client work in England and Wales.

THE SOCIETY’S ACTION GOING FORWARD 8 As emphasised by the Chief Executive, the Society’s concern is to ensure that as many criminal solicitors as possible are able to continue practising criminal law.

9 The Society will therefore seek further modifications to the consultation proposals to ensure that, as far as is possible, they are viable for criminal providers – In particular, the Society will seek further modifications to the proposals to ensure that: 9.1 Decisions about contract size are made subject to the best available evidence – In order to ensure that the maximum number of contracts compatible with financial viability are awarded, the Society and MoJ have jointly commissioned Otterburn Consulting to research firm finances.

9.2 There is maximum flexibility with regard to structure of those submitting a bid – The Society will be ensuring that consortia arrangements are permitted.

9.3 The single national police station fee is varied to reflect local conditions, particularly in London and the South East – A rapid move to a single national fee could mean a reduction of over 30% in London and the South East.

9.4 An escape fee is included for the most serious police station cases – While generally a ‘swings and roundabouts’ principle applies to police station attendances, some cases are so complex and lengthy that they impose disproportionate costs.

9.5 Plans to pay flat fees in the magistrates’ and Crown Courts, no matter what the case outcome, are reconsidered – Fees should be revised to remove any perception of a financial incentive to encourage a particular plea.

10 Provide practical advice and support for firms to adapt their businesses and, where appropriate, merge or form consortia – The Society’s overriding objective is to create the conditions under which there are maximum possible opportunities for solicitors who wish to undertake criminal legal aid. The Society is therefore preparing a programme of work aimed at providing the practical support, advice and template documentation necessary to help firms through future challenges.

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Book Reviews

ELDERLY CLIENTS: A PRECEDENT MANUAL FOURTH EDITION

MANAGING TALENT FOR SUCCESS: TALENT DEVELOPMENT IN LAW FIRMS

regulatory changes to care homes implemented by the Care Quality Commission – only one example of the wealth of new material on offer.

General Editors: Denzil Lush and Caroline Bielanska

At the heart of the multiplicity of issues covered in this book are the problems involved in planning for a client’s possible incapacity in later old age. To this end, each chapter of this new edition has been extensively revised to encompass all major developments including capacity, care workers and care homes, regulatory changes following the SRA Handbook 2011, and Lasting Powers of Attorney.

ISBN: 978 1 84661 520 7 www.jordanpublishing.co.uk

AN INVALUBLE RESOURCE FOR PRACTITIONERS ADVISING ELDERLY CLIENTS – WITH ACCOMPANYING CD-ROM An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers You might argue that clients are clients whether elderly or not. But on a moment’s reflection, you’d remind yourself that elderly clients have concerns which pertain largely to them: everything from care contracts and equity release schemes to financial planning in retirement to funeral planning.

How timely then, that Jordan Publishing has recently brought out ‘Elderly Clients: A Precedent Manual’ in a new fourth edition. Note that the editor, Denzil Lush, is the Senior Judge in the Court of Protection, ably assisted by co-editor Caroline Bielanska and five additional expert contributors.

If you are a practitioner who regularly advises elderly clients you may already have a previous edition of this well established work. But in view of the many changes resulting from the case law, especially in the areas of capacity, powers of attorney, and statutory wills, you do need this new edition in your professional library.

As the editor points out, the chapter on carer and care worker services has been completely rewritten in the wake of

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Not only does the book deal with the entire range of issues which affect the elderly client, it also provides the legal framework on which each area is based, supported throughout by checklists which, for example, will assist you in such matters as registering a lasting power of attorney and determining whether the best way forward for the client in specific circumstances is to make a will, or gift.

A quick glance at the detailed Table of Contents (very useful this!) should be enough to convince you that this book is an essential purchase. By way of introduction, the first two chapters deal mainly with ‘the client’ and with client care. In addition to the topics previously mentioned, there are chapters on, for example, sharing residential accommodation, social security agencies and appointees, the various powers of attorney of course, and deputyship, as well as equity release.

Research resources abound, notably over thirty-two pages of tables of cases, statutes and statutory instruments and a table of abbreviations, plus a detailed index at the back. An impressive feature of this volume is the accompanying CDROM which enables you to tailor each precedent to the particular needs of your client.

Describing this authoritative and helpful work as ‘a valuable resource for elderly client practitioners’ is indeed an understatement. Here is a compact resource with everything you need to assist you in what will certainly become one of the more sensitive and difficult areas of your practice.

Consulting Editor: Rebecca NormandHochman ISBN: 978 1 909416 03 1 www.globelawandbusiness.com

TALENT MANAGEMENT IN LAW FIRMS: A BUSINESS ISSUE OF PRIME IMPORTANCE An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This new title from Globe Law and Business is destined to become required reading for practitioners or partners in law firms – particularly international law firms – looking to succeed in an increasingly complex and fiercely competitive future.

On behalf of the International Bar Association, Consulting Editor Rebecca Normand-Hochman, supported by a high powered team of some seventeen expert contributors, has put together an impressive and insightful volume dealing with all the major aspects of talent management.

‘Talent management’, she says, has come to be considered (certainly by the most advanced law firms) as ‘a driver of competitiveness… unlikely to be a short term trend’.

This the book sets out to prove and does so compellingly and with conviction, supported throughout with reference to a wide range of hard-headed research from

Book Reviews

WRITING MEDICO-LEGAL REPORTS IN CIVIL CLAIMS: AN ESSENTIAL GUIDE

highly reputable sources, including the Harvard Business Review and McKinsey & Company, to cite only a couple of examples.

A key theme throughout is motivation, presented as the driving force behind success – specifically financial success – in the legal profession. ‘The principal challenge for law firms’, says the editor, is ‘not to motivate their lawyers, but to create the conditions for them to maintain this natural drive and motivation, sense of direction and achievement over the years’.

about 3 to 5 years. As a result of these symptoms he has been unable to work.’

By Giles Eyre and Lynden Alexander ISBN: 978 0 9569341 0 9 Professional Solutions Publications

Understandably, the focus here is on international law firms and the productive use of the talents and the talented people therein. By and large, the book places its emphasis on developing the necessary skills and attitudes required to meet the challenges of technological advance, diversity and economic downturn in today’s global business arena.

Encompassing expertise from a range of sources, from Clifford Chance and Eversheds to the Harvard Business School, the book emphasizes a practical rather than a theoretical approach to the variety of issues under scrutiny, from building sustainable client relationships to women lawyers and how to improve gender balance.

The latter of course is a key aspect of diversity, which as the text asserts ‘is a business imperative and helps to create a competitive advantage’. It works, in other words – and has been shown to work, which this book sets out to prove convincingly.

If you are a practitioner or partner seeking ways to further your own professional development, together with advancing the growth of your firm, you’d be well advised to acquire this forward thinking and thought provoking book.

www.prosols.uk.com

FOR EXPERT WITNESSES AND PI LAWYERS: A TIMELY AND IMPORTANT GUIDE TO FORENSIC WRITING AND COURTROOM PRESENTATION SKILLS An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Making yourself clear in court to lawyers and other non-medical participants is certainly part of the challenge that faces you if you are called upon as an expert witness in personal injury or medical negligence cases. Read this timely publication from Professional Solutions Publications, however, and you will be able to do just that – except so much more effectively.

Referred to by James Badenoch Q.C. writing in the Foreword as ‘an important and admirable book’, this volume is described as ‘a user-friendly guide to the perils and pitfalls of expert witness work and to the ways and means of making expert evidence most useful and most effective.’

With these remarks in mind, we can’t help noting one example of the type of wording that has been used in a fairly recent medico-legal report as quoted in this useful text: ‘The accident has made symptomatic previously asymptomatic degenerative disease. The period of acceleration is

The hapless PI lawyer having to digest this may discern its general meaning, but just might struggle to interpret it correctly.

Trying to make sense of something like this relies chiefly on guesswork, however educated. ‘Medical experts’, stress the authors, ‘produce evidence of this quality on a daily basis without seeming to have any idea as to how defective this evidence actually is in medico-legal terms’.

What this book sets out to do, therefore, is to raise awareness in the expert witness community of the dire need for clearly expressed language that (even) a lawyer (not to mention a judge!) can understand. While the book focuses on improving the standard of written communication on the part of the expert witness, its principles are equally applicable to improving the clarity of verbal submissions.

Not only does the book provide practical advice on forensic writing skills, it also offers guidance on evidential issues and the content of reports. There are detailed explanations, too, of the rules of court, as well as the legal principles on which all compensation claims are based.

The book has been published in association with EWI – the Expert Witness Institute. It functions almost like a textbook, with, for example, numerous summaries of key points and selfassessment guides on a wide variety of reporting issues.

Jointly written by a barrister and a forensic communications consultant, this book will no doubt quickly establish itself as required reading for all medical experts as well as the lawyers with whom they work, particularly in difficult cases.

Expert witnesses and lawyers alike should acquire this book – and there is a companion website too, at: www.prosols.uk.com/medico-legal.

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Sub-committee Reports

LAND LAW AND CONVEYANCING SUB-COMMITTEE At our September meeting discussion centred on the following: a) Finance Act 2013 So far as applicable to SDLT the new reliefs from the 15% charge in particular those applicable to property held for the purposes of a property development business, a property rental business or a property trading business as compared with the limited relief available under the Finance Act 2012 that is in favour of a property developer with an at least two year trading history were welcome. These extended reliefs also apply to enable residential owning “non-natural” persons to avoid legitimately any ATED charge and the new CGT charge but being aware of the three year clawback provisions relating to SDLT and the possibility of a proportionate claim for ATED and potential CGT liability if the relevant criteria for claiming a relief were not met for any days in the year.

New provisions relating to pre-completion transactions (previously sub-sales or transfers of rights) and covering holdover and renewal leases (essentially those where the tenancies have been extended and leases renewed under the LTA 1954) came into effect on 17th July 2013 and the perception was that these changes effected some simplifications albeit still with a few quirks.

The abolition of the “abnormal rent increases” provisions also applicable from 17th July was welcomed.

Reference was made to two SDLT cases Project Blue Limited v. HMRC – the taxpayer losing in an early decision on the application of section 75A of the Finance Act 2003 – and the CA decision in HMRC v. DV3 RS Limited Partnership where the revenue’s appeal was allowed so that in the context of an avoidance scheme the SDLT partnership provisions in Para 10 of Schedule 15 to the Finance Act 2003 did not apply on a sub-sale of a property by a partner to a partnership and SDLT was payable on the actual consideration given by the partnership.

v. Francis a decision which could result in cautious landlords being reluctant to carry out minor work until full consultation had taken place given the possibility that the totality of a number of minor works might result in the tenant’s contribution exceeding the statutory limit. c) Also discussed were the transfer of risk provisions contained in the Standard Conditions of Sale 5th Edition under which the risk passes to the buyer in contrast with the 4th Edition under which the risk remained with the seller and the buyer was provided with the opportunity of rescinding the contract if the property was damaged between exchange and completion. The change reflected the common practice adopted by property practitioners of amending the 4th Edition so as to provide for the risk to pass to the buyer so as to avoid the situation arising whereby the buyer could rescind if the property was damaged even if the damage was minor and the property had been restored to a pristine condition before the contractual completion date. There is a prevailing view among some practitioners acting for buyers who are obtaining a mortgage loan that they cannot advise their clients to proceed if the 5th Edition transfer of risk provisions are not amended so as to provide for the risk to be retained by the seller. A possible solution is to accept this but exclude or dilute a buyer’s right to rescind in the circumstances mentioned so as to minimise the danger of the seller losing the sale particularly when involved in a contemporaneous purchase. This aspect clearly requires further consideration. d) Finally although not discussed at the meeting we should all be aware of the unveiling by the Law Society of a plan to “revolutionise residential conveyancing” by the introduction of online transactions which will “streamline the process, improve communication between parties, save costs and time and improve risk management”. Those with long experience of the earlier expressed proposals may be forgiven for adopting a “wait and see” approach. The principal interest might be to see how electronic signatures are developed.

b) Two cases of general importance to property practitioners were noted being Arnold v. Britton and others where the literal construction of service charge provisions produced a transparently unfair and ultimately absurd result and Phillips

ADAM MABERLY

JUNIOR LAWYERS’ DIVISION

INTERNATIONAL SUB-COMMITTEE

An open JLD meeting will be held on 25th November to encourage anyone eligible to join the JLD (students, trainees and those up to 5 years qualified) to get involved and help set the JLD programme for the coming year. An email containing further details will be sent to all members once the venue is confirmed.

Please read the article written by Professor Sara Chandler on page 9 to learn about the International Sub-committee’s recent activities.

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Sub-committee Reports

PROFESSIONAL MATTERS SUB-COMMITTEE Readers may be aware of the various debates and consultations

by the fact that for instance a property transaction may involve

about reforming the way in which the legal profession is

a property professional, a lender and a lawyer, which could

regulated. The various regulators are making their bids,

mean three different ombudsmen if complaints were made

including the Legal Services Board (“LSB”). The Ministry of

against all three. We wonder how often a complaint would be

Justice issued a Call for Evidence saying that it was “interested

simultaneously made against all the professionals. The lawyer,

in hearing about concerns with, and ideas for reducing

the lender and the property professionals have quite distinct

regulatory burdens and simplifying the legal services regulatory

roles, and we think that caution is required before deciding

framework”. It is interesting to report the Law Society’s

that one ombudsman should decide all of these complaints. If

response. This proposed that the different legal professions

the complaints are to be fairly decided it is very questionable

should continue to be responsible for the regulation of their members, with the Law Society’s governance and structural arrangements being modified to ensure that training, authorisation to practice and standard setting are the direct

whether the same person should consider them all. Issues of confidentiality and conflict of interest could easily arise which would be difficult to manage within the same organisation and would be confusing to the complainant.

responsibility of the governing body. It proposed that regulatory arrangements should be sufficiently flexible to take account of the realities of different types of practice (City firms, small firms,

• The paper was weak on the issue of how an extended scheme should be funded.

high street firms, etc.), and that investigation and prosecution of offences should be undertaken at arm’s length by an operational arm of the Law Society with independent decision

• We also think that it has to be accepted that some unregulated so-called providers of legal services (for instance

making powers, but reporting directly to the Society. A reformed

online) will not be reputable. Awards against them may be

LSB, chaired by a judge and with significantly reduced staff,

unenforceable. If professional standards are to be upheld and

should oversee the work of the professional bodies. In our view

improved it is neither reasonable nor desirable to make

these proposals would make a significant improvement. They

regulated professionals pay for the redress (or for cost of the

would reduce much of the present confusion and duplication

ombudsman service awarding it) which is properly due from

and improve the quality of regulation whilst to an extent restoring

such unregulated and unprofessional competitors. That would

some regulation to the Law Society. Those are worthy aims.

create a moral hazard. Such competitors may be able to undercut the regulated professionals precisely because they

We responded to the discussion paper from the Legal Ombudsman Service (“LeO”) headed “Access to redress for legal and other professional services”. The drafting of the paper is admirably clear and concise. It considered whether LeO’s remit should be extended to other professions such as accountants as well as to all providers of legal services whether or not they were regulated. It is worth bearing in mind that the

do not uphold professional standards and are not saddled with the costs of regulation. We are pleased to note that the Law Society had also submitted a response saying that the Scheme should not be extended to unregulated entities providing legal services.

In conjunction with the Education and Training Sub-committee

paper was prompted by EU legislation requiring the UK to make

and its Chairman (Melissa Hardee, our immediate Past

ADR available by 2015 for all complaints against traders

President, who has great expertise in the field of legal education

(including those who provide professional services) under most

and training) we are currently considering the LSB consultation

contracts for services and goods. We expressed a number of reservations about the paper, but four principal ones are: • LeO has built up a considerable body of expertise in dealing

paper “Increasing flexibility in legal education and training”. This consultation closes on 11 December. We shall also be considering the SRA consultation paper “File retention following

with the legal profession. There is a danger of a dilution of

an intervention into a firm”. This consultation closes on 9

standards if, as proposed, its remit was extended to cover

December. If members have views which they would like us to

other professions.

consider when responding to these consultations could they please let me know (aylmer.julian@btinternet.com).

• LeO seemed to be suggesting that it could be a “one stop shop” for complaints. It said that consumers were confused

JULIAN AYLMER

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Sub-committee Reports

EDUCATION AND TRAINING SUB-COMMITTEE As members will already be aware, the Legal Education and Training Review Report was finally published in June, 2013. As reported in the Autumn issue, the focus now turns to what the regulators, and the SRA in particular, do with the Report and its recommendations.

The Legal Services Board (LSB) has issued a consultation paper, “Increasing flexibility in legal education and training – Consultation on proposals for draft statutory guidance to be issued under section 162 of the Legal Services Act 2007”, which sets out the LSB’s views on “how education and training needs to change in the form of draft guidance”. This is based on the LSB’s view that “a liberalised legal services market can only function effectively for consumers if there is a significantly more flexible labour market”. The draft guidance sets out five outcomes that the LSB wants to see, and how the LSB thinks these can be best achieved. Although the LSB emphasises that the document is for guidance only, it also says that if regulators do not “make progress in the broad direction of the guidance”, then the LSB “shall seek clear explanation” – a somewhat ominous pronouncement. Given the significance of the LSB’s proposed guidance, responses to the consultation paper are to be encouraged. The consultation paper can be found at http://www.legalservicesboard.org.uk/what_we_do/consult ations/pdf/lsb_consultation_on_lay_chairs_08_10_13.pdf.

The consultation will close on 11th December, 2013.

Following publication of the LSB’s draft guidance, the SRA has issued its much anticipated “Policy Statement: Training for Tomorrow” which can be found at http://www.sra.org.uk/sra/policy/training-fortomorrow/resources/policy-statement.page To quote from the Policy Statement: “Our plans for reform of the education and training system are radical. They will see: • An end to the historic ‘one size fits all’ approach to the solicitors’ qualification • A focus on robust assessment of the knowledge, skills and attributes required to qualify as a solicitor coupled with

significant flexibility as to how the knowledge, skills and attributes are actually achieved • Wide ranging opportunities for legal education providers and employers to develop and promote pathways to qualification which can be tailored to specific markets and needs • Replacement of the current tick box approach to post qualification development with a new system which focuses on continuing competence, is concerned with learning outcomes rather than the number of hours of training and is targeted to areas of highest risk • Removal of layers of regulation which neither assure quality nor promote standards so that we can focus instead on the desired outcomes of our regulatory effort and the areas of highest risk to the public and consumer interest.”

The SRA acknowledges that this programme of reform will take some considerable time. However, what it plans to deliver by the end of 2014 are: • a statement of competencies for newly qualified solicitors • a “bonfire of the Training Regulations” • consultation, as well as final decisions, on a new CPD scheme for solicitors.

The changes to the Training Regulations are expected to be set out for consultation in late November/early December 2013.

In order to assist members to understand the proposed changes, and the timings for such changes, as well as to provide members with the opportunity to provide input to the SRA on its proposals, the Education & Training Sub-committee will be organising a symposium for members in December, at which the new Director of Education & Training at the SRA, Julie Brannan, will speak and be available to answer questions from members. Details of the symposium will be e-mailed to members closer to the time, as well as provided in the e-Report.

MELISSA HARDEE

LAW REFORM SUB-COMMITTEE During the last year our work centered on two main topics. The first was a fascinating study of matrimonial law – What should be the fundamental principles of spousal support? Should the wide judicial discretion be limited and how? Remember the very old ‘one-third’ rule, by which the wife’s income was to be made up to one-third of the combined incomes of the husband and the wife? Should the courts be given some statutory ‘starting points’ like that? Certain stated percentages, perhaps, or even actual figures in pounds would tend to make outcomes more predictable and so encourage settlement. Alternatively, detailed mathematical formulae could be laid down to apply in specified cases without any room at all for discretion. The Committee argued that awards must remain discretionary but under reformed rules. We remained opposed to any precise formulae.

Our other major submission was about rights to light. A basic question there was whether there should be any actual statutory formulae, about angles of light, distances between buildings, and so on. Needless to say our views were not always unanimous. We were privileged by a planned visit from

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Professor Elizabeth Cooke, the Law Commissioner in charge of the project, though sadly in the event she was prevented by illness from coming.

Curiously, these two studies had some of the very same features. Both these Law Commission projects were about whether or not precise figures or formulae should be introduced with statutory force. Both will lead to profound changes in the law, though at the time of writing we do not yet know what the Commission will be recommending.

As always we welcome prospective recruits to the Committee.

Any Society member with an idea about how the law could be improved is warmly invited to come to one of our meetings and talk about it. We usually meet at 6 pm on the first Wednesday of the month, at Irwin Mitchell’s office at 40 Holborn Viaduct.

Just contact me at arthurweir@btopenworld.com.

ARTHUR WEIR