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The City of Westminster & Holborn Law Society
www.cwhls.org.uk A company limited by guarantee. PUBLISHER Benham Publishing 4th Floor Orleans House Edmund St Liverpool L3 9NG 0151 236 4141 Tel: Fax: 0151 236 0440 Email: admin@benhampublishing.com Web: www.benhampublishing.com ADVERTISING AND FEATURES EDITOR Anna Woodhams PRODUCTION MANAGER Fern Badman ACCOUNTS Joanne Casey
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Introduction The President’s Column
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News & Events Council Member’s Report - March 2013 ‘A friendly place to visit’ Annual Dinner 2013 London Legal Walk Can health screening damage your health? New website aims to close gap between profession and public
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Photographs Annual Dinner 2013
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Employment Law One in seven women made redundant on maternity leave Bring your own to work
MEDIA NO. 1298 PUBLISHED May 2013 © Benham Media 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. The City of Westminster and Holborn Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age, Disability or Sexual Orientation. DISCLAIMER All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between members and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.
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Members wishing to submit material please contact the Editor, Ivan Ho, before copy deadline. Email: ih@hunters-solicitors.co.uk Anyone else wishing to advertise or submit editorial for publication in the Report please contact Anna Woodhams before copy deadline. Email: anna@benhampublishing.com Tel: 0151 236 4141
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Professional Practice Outcomes Focussed Legislation –v– Legal Aid Budgets and Access to Justice “Your bank should be part of your business” The Supreme Court decides that legal advice privilege should not be extended On the up Moving with the times without losing sight Discover the affordable alternative to expensive online information subscriptions Sub-committee Reports Education and Training Sub-committee International Sub-committee Junior Lawyers’ Division Professional Matters Sub-committee Law Reform Sub-committee Litigation Sub-committee Land Law and Conveyancing Sub-committee Book Reviews Insurance Law for the Construction Industry The Law of Entry, Search and Seizure Nicholls, Montgomery and Knowles on The Law of Extradition and Mutual Assistance Development Commercial Property Law Update
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Introduction
THE PRESIDENT’S COLUMN This issue of The Report comes out after a most splendid Annual Dinner. It was an unrivalled venue in the Peers’ Dining Room in the House of Lords; the meal was without fault and the service impeccable. However, there was something else about the evening that was noteworthy, and which had nothing to do with the trappings but everything to do with the people who attended: namely, an atmosphere of collegiality. It is not the first time I have noticed this or commented upon it. In fact, I would make so bold as to say I believe it is a hallmark of the Society. Is it important? I think it is. Collegiality is what distinguishes a profession – mutual
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respect which gives rise to sensible and constructive debate, as opposed to oneupmanship and overriding self-interest. It is the collegiality that exists – has always existed – between members of the Society that has assured the Society’s existence but is also why its sub-committees work so effectively. You will be able to read about the work the sub-committees are carrying out in this issue (too often our sub-committees hide their light under a bushel). They work extremely hard to keep up to speed with
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developments, and to make effective interventions where they can, by producing
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responses to important consultations by regulators such as the Legal Services Board
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Lecture: Commercial Property Law Update
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Committee Meeting
or Solicitors Regulation Authority, or bodies such as the Law Commission – responses which are considered, well-debated from the different perspectives, and well-written, and all with the purpose of representing the interests of members. The Professional Matters Sub-Committee’s recent response to the Legal Services Board’s draft Business
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Plan for 2013/2014 is a case in point.
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Lecture: Family/Company Law Update: Petrodel v Prest
All members of the profession are struggling through the current difficult economic
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times. Local law societies are no different, and feel the effect when firms,
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LEGAL CHARITIES GARDEN PARTY
understandably, need to justify expenditure of any sort and will therefore look closely at membership subscriptions or tickets to extra-curricular social events. For any expenditure, the question must always be: does the benefit outweigh the cost? Well,
July
after an unsurpassed Annual Dinner, and having just read the LSB’s letter summarising
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Lecture: Regulatory Update: The SRA’s Approach to Financial Stability of Law Firms
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Committee Meeting
the consultation responses to its consultation on its Business Plan for 2013/2014, in which the Society’s response featured strongly, I feel very proud to be part of an organisation which, over the past 50 years, has been unstinting in representing the interests of the legal profession in Westminster and Holborn, and continues to embody professional collegiality – something that may all too easily be lost in a new legal services market if regulatory focus moves to activity only and away from professional title. In my toast to the Society at the dinner, I drew on my background in languages to use the analogy of lawyers as fluent speakers and interpreters of the law in a legal services market that now comprises non-fluent (dare I say, even self-taught) speakers as well. Not that the so-called non-fluent speakers do not have a role; rather, that their limitations need to be recognised and acknowledged, so that the individual seeking legal help can make an informed choice. I believe this is a challenge for the regulators if regulation is to be based solely on the activity undertaken rather than the
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qualifications of the person doing the undertaking. However, it is also the reason why this law society is so important in representing what I call the ‘fluent speakers of law’, encouraging future generations of ‘fluent speakers’, and standing as a beacon for the public when it is ‘fluency’ rather than mere proficiency that is required. MELISSA HARDEE
Details of lectures appear on pages 26 and 30. For further information, please see the monthly eReport or contact Susie Hust at admin@cwhls.org.uk
PRESIDENT
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News & Events
COUNCIL MEMBER’S REPORT - MARCH 2013
Peter Adams
1 April 2013 is a date that will be burned into the minds of many of us being the date when the LASPO cuts bite. Council decided to discuss some of the things the Society can be doing to help solicitors caught on the wrong end of these changes. Of course, the Government has no money, so there is no silver bullet, but that is when members (and their Society in particular) should stand ready to help where possible.
SUPPORTING THE PROFESSION AFTER 1 APRIL 2013 Council debated the major changes to the funding of legal services implemented on 1 April 2013 and a range of other factors weighing on High Street and mid-tier firms. These include a decline in conveyancing activity, very low interest rates on client accounts, and pressure owing to lenders’ approach to panels and the costs of PII. The cuts to legal aid, as well as fee reductions and changes to CFA and DBA rules, are likely to reduce available income for solicitors by at least a further £1 billion. Support was already given by the Society to firms affected: for example, regional road-shows in March 2013 in 11 venues with a total of 635 attendees and 4 further regional road-shows planned for April. Council also noted the new model CFA agreement, forthcoming practice notes and ‘how to’ leaflets on topics including CFAs, DBAs, costs management, portal claims, qualified one-way costs shifting, referral fees, and dealing with insurers. Wide-ranging ideas were floated in lively discussions. Key themes included: scope for offering managerial and financial advice to firms; helping firms grow their business, reclaim business from competitors in other professions, and/or adjust their business model in the light of changed circumstances; assisting firms with mergers and alliances; helping practitioners who wish to manage their exit from the profession; proactive sharing of information with the profession (e.g. around PII); and continued lobbying to reduce the regulatory burden. All the
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feedback has been captured and will be used to inform further discussions in Council and to develop work programmes for the Society.
ELECTIONS AND NON-GEOGRAPHICAL SEATS There are 61 geographical seats on Council, representing solicitors in constituencies throughout England and Wales. There are also up to 39 non-geographical seats for solicitors from specific areas of practice or with particular characteristics. These seats are periodically reviewed to ensure that Council representation of the profession remains as relevant as possible. Council agreed that the current structure remains fundamentally appropriate but also agreed the addition of further seats for women and BME solicitors.
HUSTINGS FOR THE DEPUTY VICE-PRESIDENT During the meeting, Council held hustings for the five Council members standing for Deputy Vice-President this year: David Dixon, Derek French, David Greene, Jonathan Smithers, and David Taylor. Since the meeting, Jonathan Smithers has been elected. He will be excellent in the role and we congratulate him.
UPDATES ON RECENT ACTIVITY FROM THE CHIEF EXECUTIVE’S REPORT TO COUNCIL Engagement with key influencers: This included an All-Party Parliamentary Group event in Parliament focusing on the future of legal services. An audience of 10 senior MPs and peers alongside a large number of senior practitioners from law firms across the country heard from speakers from the Law Society, the Bar Council, the Legal Services Board, and Co-operative Legal Services. Regional visits: The CEO and office-holders have visited firms in South Yorkshire, Manchester, North Wales and Greater London, showcasing diverse business models including Top 100 as well as newly accredited ABS (alternative business structure) firms. Other key events across England and Wales have included Money Laundering Reporting Officer networking groups and Find a Solicitor focus groups. PETER ADAMS
News & Events
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News & Events
‘A FRIENDLY PLACE TO VISIT’ CHECK OUT THE THOROUGHLY MODERN AMBIANCE OF THE NEW SUPREME COURT
Be you a barrister or solicitor, you have no doubt attended at any number of courts across London, or across the UK in the course of your career. Their purpose is the impartial dispensation of justice and in this, with very few exceptions over the years, they are successful. But as people-friendly places of work, you might say that when weighed in the balance, most of them would be found wanting. From dim and dismal mags courts, to the utterly magnificent and awe inspiring Royal Courts of Justice, few if any court buildings have ever been referred to as ‘friendly’ and welcoming. Most ordinary members of the public tend to describe their rare visits to courts of law as uncomfortable and unnerving, even terrifying. Many would argue – certainly within the legal profession – that this state of affairs should, for any number of reasons, forever remain the status quo. But if you are among those who argue that there ought to be a better way to do things, do take an afternoon or evening off and check out the amenities of the new Supreme Court and, if you have not already done so, take a tour of that thoroughly modern institution. Wedlake Bell Partner, Jonathan Cornthwaite – a colleague of ours at RGC – recently convened a group of fellow lawyers and legal staff to do just that. At the start of the tour, our guide Ben Wilson, the Supreme Court’s Head of Communications, reminded us that ‘cases that are heard here tend to be about points of law of significant public importance, and can often affect the entire population of the UK’ and that ‘the Justices of the Supreme Court are the final arbiters between citizen and state and interpret the law in order to ensure
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that it is applied as fairly as possible’. Further, in case any memories needed to be jogged, it was mentioned that the Supreme Court was created as the result of the Constitutional Reform Act 2005 which replaced the Appellate Committee of the House of Lords. The Act gave rise to another new departure: the fact that Justices of the Supreme Court are no longer chosen for their positions solely by the Lord Chancellor. Instead, they must apply and face an interview panel with a representative from each of the following: the Judicial Appointments Commission, the Judicial Appointments Board for Scotland, and the Northern Ireland Judicial Appointments Commission, as well as the President of the UK Supreme Court, Lord Neuberger. The successful candidate’s name is then approved by the Lord Chancellor who recommends it to the Prime Minister who in turn passes on the recommendation to the Queen. The reformist spirit which gave rise to the establishment of the Supreme Court no doubt accounts in part for its collective enthusiasm for putting a number of innovations in place which would be regarded as commonplace, or at least noncontentious, in much of the wider world, but which hitherto have been considered quite startling for a court. The prime example is the matter of cameras in Courtroom One. ‘Look up and you will notice four silver cameras,’ said our guide, adding that ‘the Supreme Court is the first court in the UK to film all the proceedings that take place and the footage is archived for broadcasters, students and researchers… The live feed is
News & Events
All this of course is but a brief and cursory summary of life and work at the Supreme Court. What would be of even more abiding interest would be the opportunity to observe the conduct of actual cases, which the Court insists you are welcome to do, although the building itself and its uniquely distinguished interior – completely modernised (following a two-year restoration project) yet impressively traditional – is what really tends to fascinate the average visitor. Described as ‘Victorian Gothic’, the building was constructed in 1913 by James Gibson as the headquarters for the then Middlesex County Council. One notices the windows decorated with the coats of arms of the counties which came under the Council’s jurisdiction. The feature which particularly intrigued our tour group was the streamed downstairs in the exhibition area’ he continued ‘so people can catch it there if the public galleries are full’. We were also informed that on occasion, judgments which are summarised for the press are televised on Sky and the BBC for particularly important cases.
Justices’ working library – what a treasure – the doors to which are decorated with pages from Magna Carta, which – lest we forget – is coming up to its 800th anniversary in 2015. Also worthy of note: the slightly more contemporary decor and
So there you have it: a largely people-friendly and press-friendly court, indicative of an ethos which accepts the need for openness and greater accountability. In another nod to the spirit of egalitarianism, each of the three courts in the building feature all seating on the same level, from the Justices’ chairs through to the public gallery.
ambiance of Courtroom Two wherein is displayed the Supreme Court’s official emblem, incorporating the rose of England, the blue flax of Northern Ireland, Scotland’s thistle and the Welsh leek. The carpet design by Sir Peter Blake of Sergeant Pepper’s Lonely Hearts Club fame, offers a quirky interpretation of the same emblem, telling people that despite its solemnity and
Interestingly the seats for both the Justices and Counsel are placed close together to, in the words of our guide, ‘create an intimate arena for intellectual debate’. Appellants and Respondents put forward their arguments to the Justices who subsequently will take between six and twelve weeks to deliver a final judgment. Typically there are five Justices who preside over each hearing, ensuring that a majority verdict will be reached. This majority vote of course sets a precedent which will determine decision making in every lower court in the UK.
tradition, the Supreme Court is ‘a friendly place to visit’. With an interactive screen which lets you be the judge on past cases and a bustling cafeteria, where you can watch court proceedings on-screen, this court, let’s hope, provides a paradigm for the design and build standards as well as the conduct of future courts in the UK. ELIZABETH ROBSON TAYLOR MA PRACTICE MANAGER
So how are cases selected to be heard by the Supreme Court? The short answer is by agreement on the part of the Justices. Appeals (which typically come up through two lower courts and the Court of Appeal) are heard by what is referred to as a rotating panel of three Justices. The cases themselves are subsequently heard by a minimum of five Justices, chosen usually on the basis of the Justices’ own specialisms, although it is deemed that each Justice will have the requisite experience to sit on any case. Note also that the Supreme Court is also the venue where cases are heard by the Judicial Committee of the Privy Council. When the Supreme Court moved into what used to be the old Middlesex Guildhall building, the Privy Council came as well. Cases now heard by the Judicial Committee in the august surroundings of Courtroom Three come from 29 Commonwealth, ex-Commonwealth and British overseas territories such as Bermuda, Gibraltar and the Cayman Islands.
RICHMOND GREEN CHAMBERS
Photos credit: UK Supreme Court.
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News & Events
ANNUAL DINNER 2013 The Annual Dinner of CWHLS took place on 21 March 2013. We were privileged to meet and eat in the Peers’ Dining Room in the House of Lords, and are extremely grateful to the Baroness Gardner of Parkes, who enabled us to hold our Annual Dinner in such special surroundings. It is no coincidence that both Lady Gardner and this year’s President of CWHLS, Melissa Hardee, are Australian. Lady Gardner welcomed the company and said a few words about how, although not a lawyer (she is a dentist), she came to know Melissa. We then enjoyed a very good dinner, with first-rate service. The Peers’ Dining Room is, like much of the Houses of Parliament, in Victorian Gothic style, with much carved wood and highly patterned wall paper. Nevertheless, the congenial atmosphere of the room encouraged a collegiate and informal feeling, and it was good to chat to old friends and to meet other members and guests. After the toasts, we enjoyed a lively speech by Fiona Woolf CBE. She needed no introduction, having once belonged to what is now CWHLS and having served as President of the Law Society of England and Wales for the year 2006/7. She is currently an Alderman of the City of London, and may be expected to become Lord Mayor later this year.
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Fiona spoke encouragingly of prospects for the legal profession – welcome optimism in the current economic and professional climate. This was reflected in the mood of the evening, and the time seemed to go quickly. Then there was the walk back through Westminster Hall to enjoy. It had been a splendid evening. Guests of CWHLS included Martin Roberts, Master of the City of London Solicitors Company; Alistair Fletcher, President of the Liverpool Law Society, and Mrs Fletcher; Stephen Whitaker, President of the South London Law Society; Shona Perkins, Vice-President of the West London Law Society; Carlos Valls and German Ferrer Gonzalez of the Barcelona Bar Association; Herr RA Dr. Marcus Mollnau of the Berlin Bar; Miss Pauline LyleSmith, an old friend of CWHLS and the founder of the DX in the mid ‘70s; and Simon Howley of CMS Cameron McKenna. Thanks are due to AON and Thames Water, who so generously sponsored the event. ROSEMARY LESTER, CWHLS Photographs of this event can be seen on the centre pages.
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News & Events
CAN HEALTH SCREENING DAMAGE YOUR HEALTH? The difficulty, of course, is in knowing which diseases you are at an elevated risk of developing. This can be determined by factors such as age, race and genetics. For example, there seems to be a high prevalence of coronary heart disease in the Indian population. By contrast, there are baffling instances in the South of France with a low instance of heart disease, despite a diet traditionally high in saturated fats. The role of genetics in certain cases is irrefutable. The risk of developing coronary heart disease or bowel cancer is greatly increased if one or more direct family members have suffered from them. In such cases regular check-ups are strongly recommended. However, certain risk factors are extremely difficult to detect, such as underlying heart defects which occur more in the young and can affect the most seemingly fit individual. Cases such as that of professional footballer, Fabrice Muamba are testament to this. There is an 80% chance of death when cardiac arrest occurs outside of a clinical setting and cardiac screening can undoubtedly save the lives of people with undiscovered heart problems - as could wider public training in cardio-pulmonary resuscitation and greater availability of portable defibrillator devices in public places. Different age groups tend to need different types of tests, so healthcare providers create health screens to cater for different demographics. Examples of these include well woman, menopause and over 60s screening. More comprehensive health screens are designed to give an appraisal of an individual’s overall state of health and indicate in which areas they might improve their lifestyle in order to reduce the risk of future health problems. There have been a number of reports in the press in recent months questioning the value of health screening, and in particular, whole body scans. The reasoning behind this is that screening can create a phenomenon known as over diagnosis; whereby patients undergo unnecessary procedures to cure problems which would have never become an issue if left to their own devices. A review of our national breast screening service has shown that while it saves a significant number of lives, it also leads to unnecessary surgery in a minority of women screened. Furthermore, some health checks seem to have little impact in reducing the mortality rates of adults. There has been recent debate into the value of prostate cancer testing in men, as increasing numbers of men die with prostate cancer, rather than from it. There are fears that men are being put at risk of potentially life-altering complications, resulting from surgery which may prove ultimately to be unnecessary. The counter argument to this is that in the USA, where a more aggressive approach to prostate cancer is widely accepted, mortality rates are considerably lower than those of the UK. What is undeniable is that all of us will certainly die of something. However, there remains a place for sensible health screening, especially for people in high risk groups.
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Within the corporate environment, health screening is also a valued employee benefit and helps to guard against unexpected and potentially prolonged absence of key members of staff. The message must be clear: that health screening should be carried out in appropriate circumstances, when it can be of most benefit to the patient. In such circumstances the screening process has the capacity to save lives and prevent physical and mental anguish. It is therefore vital to visit a responsible provider who can provide a specialist service.
News & Events
St. Anthony’s Hospital in North Cheam has a longstanding international reputation for providing high quality healthcare, and has been established for 109 years. The hospital provides a wide range of services over all major specialities and offers a comprehensive range of health screening services. For further information and enquiries please visit www.stanthonys.org.uk or telephone 020 8337 6691.
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News & Events
NEW WEBSITE AIMS
TO CLOSE GAP BETWEEN PROFESSION AND PUBLIC "...IT'S MORE IMPORTANT THAN EVER FOR FIRMS TO ESTABLISH TRUST AND BOLSTER THEIR REPUTATIONS..."
A new web app called Lawyerly, which immediately connects solicitors with potential clients wherever and whenever they need advice, was launched in mid April. “Essentially, Lawyerly is a highly-localised and specialised search engine” said company founder Matthew Cavanagh. “Customers can find the best solicitor closest to them that suits their needs, and with our rating and
review system they can see at-a-glance what others think of that firm, too.” With the introduction of Alternative Business Structures, the Jackson reforms and LASPO it is more important than ever for firms to establish trust and bolster their reputations in the eyes of potential clients. The app, which is compatible with smartphones, feature phones and tablets, as well as traditional computers, will be followed by dedicated Android and iOS apps in the next few weeks. These standalone offerings will feature everything available on the web app plus a system whereby customers can send videos, photos and audio supporting a claim directly to a qualified solicitor. “The app effectively acts as a seamless link between someone who needs immediate advice and a solicitor equipped to act in that branch of law” Cavanagh continued. The service, which will be free to use, is in short a gateway for the man on the street to access legal advice on his terms, without being pursued by call centres. “The app is foolproof and has benefits for both user and lawyer. The client can reduce the likelihood of any ambiguity at a time of high stress, while the solicitor is presented with a customer at a very early stage in the legal process.” “From the very start of this development, the objective was to reduce any friction in the business process. Trust, confidence and results are what this app will breed” said Mr. Cavanagh. Lawyerly is now available to solicitors to list their practices for free (with extended features available in the coming weeks via a monthly subscription). The directory goes live to the public later this month. Its launch and development can be followed on Twitter: http://www.twitter.com/lawyerlyuk and to find a solicitor, users should visit the website at
www.lawyerly.co.uk
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Photographs
ANNUAL DINNER 2013
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Employment Law
ONE IN SEVEN WOMEN MADE REDUNDANT ON MATERNITY LEAVE
COMMENT FROM HELENA WOODWARD-VUKCEVIC, WHO SPECIALISES IN GENERAL COMMERCIAL LITIGATION AND EMPLOYMENT LAW AT LAW FIRM HART BROWN.
A poll commissioned by a city law firm has revealed that women are suffering escalating levels of discrimination at work with one in seven women being made redundant while they are on maternity leave. This is despite the fact that an employer’s duties towards their employees on maternity leave are significantly higher than to those who are not. An employee on maternity leave can only be made redundant where there is no suitable available vacancy. If a vacancy does exist the employee is entitled to be given priority for that role over other potentially redundant employees. There is no requirement for the employee to initiate, engage or even apply for the role; the onus is on the employer. Whether or not the vacancy is a suitable one is subjective and this can be determined by an employer. However, one in seven of the women surveyed had lost their job while on maternity leave and others said their jobs had changed by the time they returned, and were forced to accept a reduction in hours or even a demotion. Others said they had been replaced in their jobs by the person who had covered their maternity leave or were simply being made redundant ahead of worse performing men. Pregnancy and maternity is protected under the Equality Act 2010 which prohibits discrimination in the work place. It is unlawful to dismiss or otherwise disadvantage an employee for a reason that is related to pregnancy or maternity leave. Under the Act maternity discrimination occurs where an employer treats an employee unfavorably because she is on compulsory maternity leave or because she is or has sought to exercise the right to ordinary or additional maternity leave.
Unfavorable treatment can include a demotion, dismissal or the denial of training or promotion because an employee is pregnant or on maternity leave. Before the recession, the Equal Opportunities Commission estimated that 30,000 women lost their jobs each year as a result of being pregnant, and it is understood that that figure has risen dramatically since. It is not clear whether the number of women claiming discrimination in the tribunal has also risen. One has to assume not. This might be because employers prefer to settle out of court to avoid adverse publicity or because women do not generally bring claims. It is easy to discriminate innocently so employers should bear in mind what a mine field the legislation can be, as mistakes can be costly.
BRING YOUR OWN TO WORK
JANE CROSBY SPECIALISES IN EMPLOYMENT LAW AND COMMERCIAL LITIGATION AT LAW FIRM HART BROWN. There has been a noticeable increase in the popularity of people using electronic devices such as smartphones and tablets. This means that employees are bringing their privately owned devices to work and using them for work, for example checking emails and accessing information. Some employers appear to be encouraging this as it offers employees greater flexibility in accessing information outside of normal working hours, employees are using devices they like and on the face of it is cheaper for the employer. However, there are serious risks for employers and their ability to control and protect access of information and the information itself. As a result of this change in the workplace the Information Commissioner has published guidance for employers to help them reduce the risk of breaching the provisions of the Data Protection Act. The Information Commissioner has highlighted concerns about the risk to personal data when using personal electronic devices for work purposes especially if there is no formal written policy or guidance in place at work to control the access to information. One of the risks which the Information Commissioner has identified is that the user of a personal device “owns, maintains and supports the device and this means that the data controller has significantly less control over the device that it would have over a traditional corporately owned and provided device”.
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The guidance by the Information Commissioner recommends a “Bring Your Own Device Policy” and suggests that the policy should cover the following points: • Who will be responsible for monitoring the policy? • What type of personal data can be processed on the personal device and if it is stored on the device how can this be safely deleted when not in use? • Strong passwords to secure devices. • Automatic locks on devices to prevent unauthorised access of information, ensure the user knows when to delete information and maintaining a separation between personal data and data used for the purposes of work. • Which documents are allowed to be accessed through a personal device? • How controls can be put in place if the device is lost or stolen? • Who pays for the cost of maintaining the device if it is being used for work purposes? • What happens on termination of employment? Recent surveys have revealed that over 40 per cent of employees are using their own devices for work without any guidance in place by their employers to ensure that they comply with the Data Protection Act. This guidance is therefore particularly helpful. If businesses are unable to provide their employees with their own electronic devices then they should consider implementing a Bring Your Own Device Policy.
Professional Practice
OUTCOMES FOCUSSED LEGISLATION –V– LEGAL AID BUDGETS AND ACCESS TO JUSTICE (AN IT EXPERT’S PERSPECTIVE)
TONY SYKES OF IT GROUP LOOKS AT HOW SOME RECENT CHANGES HAVE HAD A DIRECT IMPACT ON THE DELIVERY OF HIGH QUALITY FORENSIC EXPERT SERVICES. TONY SYKES, SENIOR PARTNER IN IT GROUP, IS A CHARTERED IT PROFESSIONAL AND A CHARTERED ELECTRICAL ENGINEER. HE HAS TWENTY YEARS’ EXPERIENCE AS AN IT AND ELECTRICAL ENGINEERING CONSULTANT AND IS AN EXPERIENCED EXPERT WITNESS. WWW.ITGROUP-UK.COM In 2011 the Solicitors’ Regulation Authority published guidelines on the new “Outcomes Focussed Legislation” and quoting from their website, outcomes-focused regulation (“OFR”) “is a regulatory regime that focuses on the high level Principles and outcomes that should drive the provision of services for clients”; defining OFR as enabling “you to put clients first, where this doesn’t prejudice the public interest” and is about “achieving the right outcomes for clients”. At around the same time, in October 2011 the LSC introduced a new fee structure for experts. This set maximum rates for certain types of expert. While this reform made provision for increases in fees under “exceptional circumstances”, in reality, because all expert instructions are normally subject to tender (and rightly so if tenders are on a like-for-like basis), this provision has probably never been exercised and certainly we have no experience of it simply because the tender process eliminates it. All well and good one may conclude; it is after all public money being spent and times are hard. However, the published Legal Aid Reforms set out maximum rates for disciplines such as A&E Consultants, Accountants, Architects, Handwriting Experts, Midwives, Toxicologists and Vets among many others. While there were some seemingly bewildering differentials including some disciplines where the separate “London” weighting was actually lower than in the provinces, what was more striking was that for Accountants there was a range of fees depending upon whether the work required a “Partner”, “Manager”, “Accountant” or “General Staff”. The rates ranged between £50 per hour and £144 per hour. Fine in principle I would imagine most people would say but then when the schedule was studied it became apparent that Accountancy was the only profession where this distinction was made. What of the humble IT Consultant and all the other disciplines? Do we and they have no hierarchy? Seemingly not. IT Consultants were not separately identified but “Cell Telephone Site Analysis”, “Computer Expert” and “Telecoms Expert” were all listed; no electrical engineers or any engineers for that matter. All those listed had a single rate; much reduced from the established rate that had been in effect for years.
providing means of checking where parents and guardians have been during custody disputes and the un-deletion and retrieving of SMS text messages is often a crucial part of the picture too. However the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force last month and will limit the availability of funding in some cases involving issues of child protection or where an individual is able to produce evidence of domestic abuse within the relationship. We have regularly been instructed in such cases to provide crucial evidence from cell site analysis and from mobile phone examinations. Such instructions are now at risk. To counter these measures we have been investing in the development of more automated techniques for delivering the same high levels of service but for a fraction of the cost. Where Legal Aid has been removed as an option altogether however, no amount of improved efficiency or state-of-the-art technology is going to help.
Why is this important? Well firstly we immediately cut our rates to comply with the new legislation. The cut was just under 10%. In any economic climate, such a reduction can only realistically be accommodated by an adjustment in the service provided; either by doing less work or by doing it more efficiently. Again possibly all well and good? But in the field of forensic IT, the difference between a service that adds value and one that might just “tick the boxes” lies in the skills and experience of those employed to perform complex analyses supported by state-of-the-art technology. In mobile phone forensics, neither comes cheaply and a high commitment to investment is essential to stay one step ahead of the criminal and to deliver value in the other arenas in which we are asked to work. A good example is in the family court where we have regularly been instructed to analyse mobile phones in custody cases. This is often a vital aspect
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Professional Practice
“YOUR BANK SHOULD BE PART OF YOUR BUSINESS” PETER SLATTERY, REGIONAL MANAGER – LONDON AND THE SOUTH EAST, AT ALLIED IRISH BANK (GB), CONTINUES WHERE HE LEFT OFF FROM THE LAST ISSUE WITH MORE ON FINANCE IN THE LEGAL SECTOR FROM A BANK’S PERSPECTIVE AND WHAT BANKS SHOULD BE OFFERING THEIR PROFESSIONAL CLIENTS. We sat down with Tim Wright, Finance Director at highly regarded commercial and private individuals law firm Penningtons Solicitors LLP. Penningtons are the 77th biggest law firm in the UK and the fastest growing by turnover in 2011/2012, a title they have continued to build on into 2013. “In my opinion, your bank should be part of your business. For us this doesn’t just stop at the day to day, we refer business to each other and organise joint social events outside work. Having previously banked with a high street bank, we have banked with Allied Irish Bank (GB) for 13 years and built a very strong relationship. It’s great to be able to pick up the phone and talk directly to our branch manager or discuss what’s coming up at our quarterly meetings.”
PROFESSIONAL INDEMNITY INSURANCE “As with most firms, our annual indemnity insurance renewal comes up in October but we start the process at the beginning of June. Predominantly we would look to our specialist brokers to advise us on the best offer and then to our bank to provide us with the right loan product. Primarily, the most important aspect that I require as Finance Director is flexibility. It’s important the loan is suitably financed over the whole year and that I am able to draw it down in blocks.” “With regard to keeping the annual premium and therefore the loan requirement to a minimum, it is all about managing your risk proactively. The guidelines and procedures from our continued Lexcel accreditation and our annual independent audit have been integral to this management. The most important aspect, of course, is ensuring that all these safeguards are followed through in practice to reduce the firm’s risk and ultimately the claims made against it - insurers look favourably on this.”
ASSET FINANCE “When it comes to funding, the relationship a firm has with its bank becomes all important. In 2011, a merger was proposed with two other firms. Penningtons required funding to enable the merger and to purchase office furniture and IT for new premises. I needed to know that I could pick up the phone to our bank and discuss the proposal with someone who understood our business. Our Relationship Manager at the bank carried out their own financial analysis and provided us with a timely, competitive quote over the right payment terms for the firm. An important aspect for me on the fit out for the new office was that we were able to source the equipment ourselves and the bank then reimbursed us, rather than waiting for the bank to pay the supplier or an alternative supplier of the bank’s choice.”
PARTNERSHIP LOANS “As Finance Director I advise new partners on market rates and then they arrange the loan with a bank directly. Typically, the rate is the most important aspect here, although some prefer to use their own bank or favour the security of using the firm’s bank.”
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INTERNATIONAL TRADING – FOREIGN CURRENCY PAYMENTS AND TRANSACTIONS “Currently, 12% of Penningtons’ turnover comes from abroad and we are very much looking to grow this international business. With payments required to overseas lawyers, clients and foreign probate transactions, a foreign currency banking capability is increasingly important.” “We see the growth within the Eurozone as much smaller than elsewhere and hence we have had significant success in places like North America and India from investors looking to the UK for property or business acquisition. Our membership of Multilaw, a global association of independent law firms, has been a great asset to the growth of our international business and we have also recently appointed our first partner from Mumbai.”
ONLINE BANKING “We use the iBusiness Banking provided by Allied Irish Bank (GB) and this offers us everything we need to conduct payments efficiently and reliably. Most importantly, it is secure and allows different levels of authority to ensure staff can only access the parts that they need.” “For client account opening we rely on the bank’s Central Deposit unit. We require these accounts to be opened and managed efficiently and look to negotiate a good rate on larger deposits. Our direct relationship with the staff in this unit means that we are able to quickly track a payment by picking up the phone.”
CREDIT CARD PAYMENTS “Generally across the legal profession we have seen an increase in credit card payments and for this we look for merchant services solutions. We currently have a point of sale terminal in operation to accept card payments. The increase in card use is down to two reasons. Firstly, there has been a positive social shift towards using credit cards for paying legal bills whereas previously this was not done. Secondly, for the firm this provides a greater speed of collection than chasing invoices. Ultimately, for any business in the current environment, cash is king.” Providing the right products for a wide range of businesses is our challenge. One specialist product we are particularly proud of is our Virtual Account Manager (VAM), which is ideal for law firms. VAM allows firms to open, close and maintain instant access ‘virtual’ accounts for individual clients. We see the relationship with our clients as a partnership and it is pleasing to see Tim echo this. From Tim’s comments, it is clear that drawdown and repayment options are crucial to changing the cash flow of any business. It is vitally important that banks listen closely to their clients and adopt a flexible approach when trying to match their requirements. PETER SLATTERY REGIONAL MANAGER – LONDON AND THE SOUTH EAST, ALLIED IRISH BANK (GB) WWW.AIBGB.CO.UK With special thanks to: Tim Wright Finance Director Penningtons Solicitors LLP www.penningtons.co.uk
Professional Practice
THE SUPREME COURT DECIDES THAT LEGAL ADVICE PRIVILEGE SHOULD NOT BE EXTENDED legal advice privilege should be extended to cases where legal advice is given by professional people who are not qualified lawyers raises questions of policy which should be left to Parliament. Thirdly, Parliament has enacted legislation relating to LAP, which, at the very least, suggests that it would be inappropriate for the court to extend the law on LAP as proposed by Prudential.”
Lord Neuberger believed that to adopt the suggestion that legal advice privilege should apply in any case where legal advice is given by a person who is a member of a profession which In R (Prudential plc and another) v Special Commissioner of
ordinarily includes the giving of legal advice is a stance which
Income Tax and another [2013] the Supreme Court dismissed
would “carry with it an unacceptable risk of uncertainty and loss
Prudential’s appeal of the Court of Appeal decision in R
of clarity in a sensitive area of law.”
(Prudential plc and another) v Special Commissioner of Income Tax and another [2010], by not extending the scope of legal
With regard to loss of clarity Lord Neuberger said that he was
advice privilege to non-lawyers, in this case accountants.
unclear if occupations such as town planners, engineers, or pension advisers would be members of a “profession” for this
In brief, the Prudential Group used a tax avoidance scheme which had been devised and adapted by PricewaterhouseCoopers (“PwC”), accountants, to enter into a
purpose. Similar to lawyers they are also required to undertake training and acquire qualifications.
series of transactions. HMRC sought to investigate the transactions and served notices requesting disclosure of
Lord Sumption and Lord Clarke provided dissenting judgments.
documents relating to the scheme and transactions. Prudential
Lord Sumption adopted a functional approach. He stated that
refused to disclose documents relating to legal advice provided
“the privilege is conferred in support of the client’s right to consult
by PwC to Prudential on the transactions, claiming that the
a skilled professional legal adviser, and not in support of his right
documents were subject to legal advice privilege.
to consult the members of any particular professional body.”
The Supreme Court had to consider the general question whether legal advice privilege extends, or should be extended, to legal advice given by someone other than a member of the
In his dissenting judgment Lord Clarke expressed hope that the common law position of legal advice privilege is an issue which
legal profession, and, if so, to what extent.
will be considered by Parliament.
It was held by a majority of five to two that the scope of legal
The accountancy profession will no doubt be disappointed with
advice privilege should not be extended. Lord Neuberger
the outcome as their battle to revise the law on this issue has
recognised that there were strong merits in allowing Prudential’s
been defeated. On the other hand, the legal profession would
appeal and extending the scope of legal privilege would be a matter of pure logic. However, he concluded that to extend the scope is a matter for Parliament for the following reasons:
not have been surprised by the decision. Legal advice privilege will continue to be available only to solicitors, barristers, legal executives or suitable qualified foreign lawyers.
“First, the consequences of allowing Prudential’s appeal are hard to assess and would be likely to lead to what is currently a clear
TEY HASSAN
and well understood principle becoming an unclear principle,
TRAINEE SOLICITOR
involving uncertainty. Secondly, the question whether
RADCLIFFESLEBRASSEUR
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Professional Practice
ON THE UP
ANDY HARRIS IS A DIRECTOR IN THE LEGAL TEAM AT CHARTERED ACCOUNTANTS HAZLEWOODS LLP
The Law Management Section’s 2012 Financial Benchmarking Survey report shows that, despite the ongoing challenging economic and market conditions, the situation for law firms continues to improve. Andy Harris introduces the findings, and Chris Marston reflects on the results. This is the fourth year that we have produced the Financial Benchmarking Survey for the Law Management Section. Now in its 13th year, the Survey is sponsored by Lloyds TSB Commercial. This year, the survey was opened up to the whole profession, and the submission deadline was brought forward to allow us to produce the report much earlier than in previous years. Despite the earlier deadline, almost 170 practices took part, making it one of the biggest of its kind in the UK. As in previous years, participants provided two years’ data – the most recent accounting period and the previous one – allowing us to compare results on a like-for-like basis. Here are a few brief headlines: • median practice fee income increased by 3.6% compared to 2011, following a 1% increase last year, and a 0.2% increase the year before; • median fee income per equity partner was £559,000;
• interest receivable increased by 20% – an average of almost £2,600 per partner – as the amounts of client money held continue to increase, and banks are beginning to pay improved rates of interest on client monies; • the ratio of fee-earners to equity partners increased slightly, up to just under five to one; • the median cost of an employed feeearner (including fixed share partners) increased slightly to £40,860; • total lock-up (work-in-progress and debtors combined) remained very similar to 2011, at 159 days; • median profit per equity partner increased by 3.6% to £120,677, following the trend in both 2011 and 2010, with increases across the board for all but the largest and smallest practices in the survey – for some practices, profits are as high as they were four or five years ago. The increase in profitability has resulted from a combination of increased income and continued control over spending. Greater numbers of practices have also begun outsourcing their key functions.
BANKING ON SUCCESS CHRIS MARSTON, HEAD OF PROFESSIONAL PRACTICES AT LLOYDS TSB COMMERCIAL, REFLECTS ON THE 2012 SURVEY RESULTS This year’s survey results demonstrate once again the remarkable resilience of the solicitors profession. In difficult economic conditions, it’s really impressive to see median income grow by 3.6%, and a similar percentage growth in median profit per equity partner. But the measure I like best is the profit after deducting a realistic notional partner salary, and notional interest on partners’ capital. The resulting ‘super profit’ (or, to be blunt, real profit) has grown to almost 8% of fee income, from last year’s 4.5%. Partners tend to have three roles in their business – as investors, managers and practitioners – and the challenge is to do justice to each role. This important annual survey provides detailed and valuable data to allow them to look at their firm’s financial performance objectively and make the right investment and management decisions. Without those, it really doesn’t matter how great a practitioner you are.
The LMS Financial Benchmarking Survey 2012, produced by Hazlewoods and sponsored by Lloyds TSB Commercial, is available to Section members now, at the special price of £75, or to nonmembers at £150. Survey participants receive a copy free of charge, plus a personalised report, comparing their results against all other participants. To buy your copy, visit the Section website at www.lawsociety.org.uk/law management. Continuing the positive trend, in this year’s survey, we asked practices for their fee predictions for 2013. Overall, the responses were fairly positive, with a median expected fee growth of 3.4%. Given the uncertainty coming from alternative business structures (ABSs) and other legislative changes, this is pleasing. We also asked participants for their thoughts on their own future over the next few years, particularly following the introduction of ABSs and external investment in practices at the beginning of last year. A third of practices told us that they were likely to merge with another practice within the next two to three years, and a similar number were already speaking to other practices. This certainly ties in with our own experiences – we are currently assisting more practices with mergers, demergers and hiving off parts of their practices than ever before. Finally, one in five practices thought it likely that they would seek external investment for expansion, and a similar number said that they were likely to bring in one or more non-lawyer owners, such as HR, IT or finance partners, or partners’ spouses.
NOTE This article was first published in the February 2013 edition of Managing for Success, the quarterly magazine of the Law Society’s Law Management Section www.lawsociety.org.uk/lawmanagement
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Professional Practice
MOVING WITH THE TIMES WITHOUT LOSING SIGHT FRASER & FRASER CELEBRATE 90 YEARS OF PROBATE RESEARCH This month marks an important milestone in Fraser & Fraser’s long history. As we celebrate our 90th year, it seems fitting to take a look back at how our business has evolved to meet the ever changing needs of this industry while at the same time continuing to deliver the high standards demanded by the legal professionals we support. In 1923, Gertrude Christensen, great aunt to today’s working partners, took the ambitious step of founding her own firm. Due to her experience, employed as an Outdoor Clerk carrying out genealogical research for a law firm, she was confident that she had the expertise needed to support lawyers in their work. In 1969, a new partnership was formed with her nephews, Nathan and Simon Fraser, at the helm. Under their management, Fraser & Fraser continued to lead the way in probate research in the face of an ever changing society. Increasing divorce rates, emigration, immigration and population growth all made searching for missing beneficiaries more of a challenge, and they developed the expertise to overcome these obstacles. Since 2007, the firm has been managed by the latest generation of Frasers: Andrew, Charles and Neil. These current partners are forward thinking and share their family’s passion for research, but they also bring with them the technical knowledge needed in looking for new and innovative research solutions. This ensures we stay ahead of the competition and can research more effectively at greater speed than ever before.
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There is no doubt that the internet and increased media coverage have contributed to revolutionising the world of genealogy. TV programmes such as Heir Hunters and genealogy websites that allow users to research their own family trees are extremely popular; this technology is essential in helping us to reduce costs, speed up the search process and increase communication, but these factors have also led to an increase in small, amateur probate research firms arriving on the scene. Experience has shown us how important it is for solicitors to be able to choose a firm that they can trust and have confidence in. Despite many changes over the last 90 years, some things have stayed the same. We have upheld the Fraser family’s vision by offering dedicated support to probate professionals in the UK and overseas and we continue to grow. We have built up international relationships, a network of European offices and a vast portfolio of services, but the firm still remains in the hands of the family that started it up in 1923. At the grand age of 90, Fraser & Fraser are proud to say that we continue with the same values and aims forged by Gertrude all those years ago: to be and always be a trusted and reliable partner to the legal profession. JOHANNA LINES MARKETING & BUSINESS DEVELOPMENT MANAGER FRASER & FRASER
Professional Practice
DISCOVER THE AFFORDABLE ALTERNATIVE TO EXPENSIVE ONLINE INFORMATION SUBSCRIPTIONS Can’t find that case citation quickly enough? Having trouble locating a particular piece of legislation? Then the Law Society Library can help you. Our team of experienced law librarians can save you valuable time by researching and locating information from our collection of over 55,000 resources. So there’s no need to take out an expensive online subscription for resources you might never use fully. We can help you to find cases, legislation, precedents, law reports and more. Simply telephone or email your request to the team to get started - 0870 606 2511 or library@lawsociety.org.uk. To give you an idea of how we can help, here are just a few of the enquiries that our librarians have handled in the past*:
The research service is open to members of the Law Society of England and Wales and their employees. The first ten minutes of research are free! Subsequent research is charged for in blocks of 20 minutes. To get started, contact us by: Telephone: 0870 606 2511 Email: library@lawsociety.org.uk The Library’s Lawdocs service can email you copies of materials quickly and easily. Normal delivery time is within 24 hours but if you need a copy urgently our premium express service guarantees delivery within 45 minutes. For more details about this and the rest of the Library’s services please visit www.lawsociety.org.uk/library or call us on 0870 606 2511. We look forward to hearing from you.
COMPARING TEXT BETWEEN PREVIOUS AND CURRENT EDITIONS
Q.
I have a copy of the 4th edition of Hague on Leasehold Enfranchisement. Can you let me know if some text has changed?
A.
Yes. The library holds the current edition of Hague on Leasehold Enfranchisement, which is the 5th edition published in 2009. We are happy to read a few sentences over the phone to members. If there is too much to read out we can supply copies of most of the material we hold (subject to copyright law) using our Lawdocs document delivery service (see below for more information).
*Information correct at time of enquiry.
CASE SEARCHES
Q. A.
I’m looking for case law on a particular scenario. Can you help?
Yes. The library currently subscribes to Westlaw, Justis and LexisLibrary, all of which have case databases that can be searched by key words. If you would subsequently like a copy of a case or law report, we can email you copies (subject to licence agreements and copyright law) using our Lawdocs document delivery service (see below).
LEGISLATION IN FORCE IN THE PAST
Q. A.
I need a copy of the Town and Country Planning (Use Classes) Order as it was in 1970. Do you have a copy?
We have library resources that provide copies of legislation as they stood at particular points in time, so we will be able to provide you with a copy of this using our Lawdocs service.
SUCCESSION RIGHTS OF ILLEGITIMATE PERSONS ON INTESTACY
Q.
I have a partial intestacy probate matter still open from 1982. The only close living relative at the time (and now) is a niece, but she is illegitimate. Can she inherit the remainder of her aunt’s estate?
A.
The library holds textbooks going back to the 1800s, and we found the answer in Holloway’s Probate Handbook (9th ed, 1993), which states that between 1 Jan 1970 and 3 April 1988 the Family Law Reform Act 1969, s.14 was in force, and gives detailed commentary of how an illegitimate child can inherit under intestacy.
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Sub-committee Reports
EDUCATION AND TRAINING SUB-COMMITTEE The Education and Training Sub-Committee is awaiting publication of the report of the Legal Education and Training Review (“LETR”), with the review team’s recommendations which are now expected to be presented to the LETR steering group in May and made public in June. The May lecture on 20th May will be a Commercial Property Law Update, further details of which are provided in this issue. The June lecture will cover the Petrodel v Prest case, and will consider the interface between family law and company law that the case gives rise to. The July lecture will be a Regulation Update, which will be given by Iain Millar of Bevan Brittan LLP. Details of all lectures will be circulated in the e-Report and by e-mail. In summary: 20th May 2013
Commercial Property Law Update
Russell Stone and Aiden Biggs, Ely Place Chambers
17th June 2013
Family/Company Law Update: Petrodel v Prest
Ben Shaw, Erskine Chambers
15th July 2013
Regulatory Update: The SRA’s Approach to Financial Stability of Law Firms
Iain Miller, Bevan Brittan LLP
MELISSA HARDEE
INTERNATIONAL SUB-COMMITTEE
JUNIOR LAWYERS’ DIVISION
At the time of going to press no meeting had taken place since the last issue.
At the time of going to press no meeting had taken place since the last issue.
PROFESSIONAL MATTERS SUB-COMMITTEE Amongst our other activities I mention the following: 1. We responded to the SRA Consultation: “Red Tape Initiative: Removing unnecessary regulations and simplifying processes”. In our view (shared as it turns out by the Law Society) this sounds better than it is. It proposed some minor abolition of rules, some of which we thought best left in place. The SRA invited suggestions from the profession. It is important that this should be a continuing dialogue between the SRA and the profession and not a one-off (and now closed) consultation. 2. Our main concern with the SRA Consultation “Handbook Amendments Relating to International Practice” is (you guessed it) double deontology. 3. We responded to the LSB’s Draft Business Plan 2013-14. Although better phrased than some LSB consultations, it is still turgid and demonstrates a lack of clarity of thought and of respect for the profession (in marked contrast to the clarity of the Legal Ombudsman’s Business Plan). The LSB has a selfdeclared mission to regulate legal practitioners on the basis of what they do rather than on the basis of their professional label of solicitor, barrister etc. Currently everything a solicitor does in the course of his practice is regulated, whereas the LSB is resorting to the anachronistic practice of having activities it wants to regulate declared reserved activities. Despite the LSB’s wish to “reform and modernise the legal services marketplace in the interests of consumers”, it fails to grasp that this approach will inevitably leave gaps in consumer protection.
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The LSB states that “our investment in primary research is one of our proudest achievements”. It proposes further instruction of external commissions with a view to “mapping the unregulated market” and “testing the risks of general legal advice” to support the work of “scope of regulation”. We commented on the fact that it had commissioned a report recommending abolition of the “cab rank” rule at the Bar. We can think of no reason why an oversight regulator should embark on such an exercise (which the Bar Council has discovered cost £21,367) except for its wish to get rid of the Bar as a separate profession. In the Bar Council’s own response to that paper Sir Sydney Kentridge QC, says: “The professors see only that breaches of the rule are difficult to detect and conclude that breaches must inevitably occur. They do not see the bar as an honourable profession whose members generally obey the ethical rules of their profession, and who do not seek to evade them.” Sir Sydney accused the authors of the report of showing hostility both to the cab rank rule and also to the Bar, saying that it “sneers at its ethical pretensions…. One finds also far-reaching conclusions based on selective quotation, flimsy evidence or no evidence at all – very far from what one would expect from senior academics doing serious research”. Sadly that is also typical of the LSB. JULIAN AYLMER
Sub-committee Reports
LAW REFORM SUB-COMMITTEE The main project of the Law Reform Committee at the time of writing is rights to light. On Monday 18 February 2013 the Law Commission published a consultation paper. However, by no means all members of the Society are happy with all the provisional proposals. The Committee has set up a working party which is preparing our response. The Committee will also be deciding whether to respond to another Law Commission proposal to introduce conservation covenants into English Law. A conservation covenant is a voluntary agreement between a landowner and responsible body such as a charity to do or not do something on their land for a conservation purpose. Similar in some ways to restrictive covenants these covenants would have obvious differences. There need be no dominant land for example. Conservation covenants, say the Commission, are used in many other jurisdictions, but in England and Wales landowners and responsible bodies are relying instead on complex and expensive legal workarounds. The consultation closes on 21 June 2013. ARTHUR WEIR
LITIGATION SUB-COMMITTEE The Litigation Committee has primarily been involved in considering and discussing the implementation of many of Jackson LJ’s recommendations which took place on 1 April 2013. The changes together represent the biggest change to Civil Litigation procedure in England and Wales since the Woolf Reforms which were implemented in 1999. In summary, the changes will have an impact on all stages of litigation, the key changes being as follows: 1. The introduction of Conditional Fee Agreements (known as Damages Based Assessments) for contentious work, there being caps on the amount of damages depending on the subject matter of the type of litigation work. 2. The irrecoverability of success fees under Conditional Fee Agreements (“CFA”) and After the Event insurance premiums where arrangements are entered into after 1 April 2013. These changes have been delayed for certain types of proceedings. 3. A 10% increase in general damages in contract and tort claims decided after 1 April 2013 where the Claimant has the benefit of a CFA with a success fee. 4. A brand new costs management procedure for multi-track cases commenced on or after 1 April 2013. The new procedure will not apply in the commercial court or to claims over £2 million in the Technology &
Construction, Construction, Mercantile or Chancery courts. 5. A new test of proportionality for recoverable costs. 6. Changes to the layout and the numbering of costs Rules and Practice Directions in the CPR, Parts 43 to 48. 7. An additional costs sanction (equivalent to 10% of the value of the claim) payable by Defendants who do not accept a Claimant’s reasonable Part 36 offer. 8. Changes to standard disclosure provisions for substantial multi-track cases. 9. Concurrent expert evidence to be permitted at the Judge’s discretion (known as “hot tubbing”). 10. The Court will have new powers to control witness evidence. 11. Amendments so as to impose stricter compliance with the Rules on Granting Relief from Sanctions for breaching rules or court orders. The other major development has been the introduction of the Bar’s Chambers’ Terms of Business to apply to solicitors and clients. The Litigation Committee will provide further updates as to how these changes are seen in practice by our members over the coming months. SHAMS RAHMAN
LAND LAW AND CONVEYANCING SUB-COMMITTEE Our last meeting was held on Monday 28 January 2013. The principal points for discussion derived from the Finance Bill and prospective Finance Act, covering three separate areas of practice affecting property practitioners: 1. Proposals relating to sub-sale relief – transfer of rights. It was considered that the new proposed legislation would overlay existing complicated and uncertain provisions. We drew attention to the PLC comments on “SDLT Transfer of Rights: draft Finance Bill 2013”. The new rules will apply from Royal Assent to the Finance Act 2013. 2. Proposed relief for the 15% SDLT charge. Reliefs are being proposed similar to those proposed to be introduced as relating to the proposed Annual Residential Property Tax (“ARPT”), reflecting the acceptance by the Treasury of many of the responses to the consultation relating to ARPT. 3. ARPT and the proposed extension of CGT to high value residential properties. These proposed changes need careful consideration by all property practitioners.
We also referred to two important cases, the first being Pankhania v Chandegra, covered by a Law Society Practice Note. The decision upholding the principle that an express declaration of trust would normally displace any resulting or constructive trust is uncontroversial but there had been doubts expressed previously and their being put to rest albeit possibly only temporarily was helpful. The second case was Avocet Industrial Estates v Merol Ltd and another. Unfortunately the case was settled before the Appeal hearing. Accordingly the earlier decision (to the effect that a very minor breach of a lease covenant, in this case the non-payment of a very small amount of interest on rent arrears which interest had not been demanded before the break date, would invalidate the break) still stands as an unfortunate precedent reversing the recent trend towards greater realism in this area of law. We also drew attention to the DCLG guides to “improving the energy efficiency of buildings” being both useful and comprehensive. ADAM MABERLY
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Book Reviews
INSURANCE LAW FOR THE CONSTRUCTION INDUSTRY 2ND EDITION
THE LAW OF ENTRY, SEARCH, AND SEIZURE 5TH EDITION
dealing with long term projects usually valued in millions, this book, as the authors explain, is about how insurers and the construction industry share such risks. Distinguished for its clarity as well as its erudite and certainly practical approach, this book, in the words of its team of authors, is ‘intended for lawyers, contracts managers, risk managers, insurers and brokers working on commercial projects within the construction industry.’ In whatever aspect of the construction industry – and its insurers – you are professionally involved, you will appreciate the book’s logical four part structure in which the diverse topics covered are grouped under four main categories.
Edited by Robert Hogarth, Alexandra Anderson and Simon Goldring ISBN: 978 0 19 966290 6 Oxford University Press www.oup.com
THE DEFINITIVE TEXT FOR PRACTITIONERS AT THE CONSTRUCTION BAR An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers If you find life at the Construction Bar a tad challenging, this definitive text, published in this latest second edition by the Oxford University Press, should find itself permanently on your desk. Each of its twenty-seven chapters – which cover the full spectrum of insurance law for the construction industry – is written by a variety of authors, all experts in this challenging and diverse area of law. The construction industry itself entails huge financial risk and considerable hazard for its workforce, as the authors point out in the introduction, adding with reference to the construction of the Gherkin in London, that in this risky enterprise, contractors and consultants share the chance of mistakes with the insurance industry. In an area of law
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As appropriate to its subject matter, the book is well constructed. Featuring numbered paragraphs and meticulous footnoting throughout, it has not only a detailed table of contents at the front, but an equally detailed list of contents at the beginning of each chapter. All this, plus the sixteen page index, makes this particular work of reference exceptionally accessible and easily navigable, especially when you are under pressure and you need all the help you can get.
By Richard Stone ISBN: 978 0 19 966040 7 Oxford University Press www.oup.com
THE RIGHT TO ENTER, SEARCH AND SEIZE: HAS IT GONE TOO FAR? AND WHAT ARE THE REMEDIES? HERE’S AN AUTHORITATIVE EXAMINATION OF THE CURRENT LAW An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
And as you would expect, there are extensive tables of cases and legislation. Speaking of which, the book concludes with a final chapter on future changes in insurance law which, as its authors explain, looks very different from the similar chapter in the first edition following the progress made by the Law Commission to reform insurance law. As this process continues, the authors optimistically predict that ‘the third edition of this book may be very different again….’ Which means that, once you have perused this current edition, you will no doubt look forward to its successor!
The circumstances under which entry, search and seizure are allowed – and under which laws they are permitted – constitute the subject matter of this wellknown and definitive legal text recently published in a new fifth edition by the Oxford University Press.
Published in 2013 and updated to 31 August 2012, this new edition is supplemented by a website set up by the RPC in collaboration with the OUP, which will update you on issues pertaining to the book’s content.
The book’s usefulness is unquestionable following the government’s announcement of its intention to reexamine the current law pertaining to entry, seizure and distraint, with a view to drafting and enacting new legislation to curb what are seen as the excessive
Does one person have the right to enter another person’s premises against his or her will and take that person’s goods and property? The answer, as practitioners are aware, is yes – whenever the law allows.
Book Reviews
NICHOLLS, MONTGOMERY AND KNOWLES ON THE LAW OF EXTRADITION AND MUTUAL ASSISTANCE 3RD EDITION
powers taken advantage of by bailiffs – to cite only one example – including powers, allegedly, to kick down doors in certain instances.
In a quote from Lord Bingham, referred to in the book’s introduction (which we transcribe in part), extradition has been defined as ‘the formal name given to a process whereby one sovereign state… asks another sovereign state… to return… someone present in the requested state… in order that the subject of the request may be brought to trial on criminal charges in the requesting state. The process also applies where the subject of the request has escaped from lawful custody… and is found in the requested state.’
Following concern about the proliferation of such powers, the practitioner is well advised to get hold of this latest edition of this authoritative text. This is an extremely valuable contribution to the continuing debate on the extent of the powers of the state to interfere with the personal affairs, not to mention the privacy of the private citizen. If anything, the book certainly reveals the many and varied grey areas which currently loom over and inform (or misinform) just about any discussion of entry, search and seizure issues: the use of force, for example. What is force exactly? When may it be used? As there is no absolutely unequivocal answer, the rights and wrongs involved remain arguable. Current laws, therefore, are in need of reform, which it is anticipated will be imminent and which will no doubt be examined in the next and sixth edition, we hope, of this excellent book. Covering any number of issues from the human rights context and remedies, to criminal investigations, civil procedures and revenue customs and excise, the book examines the significant changes in the law that have occurred since publication of the previous edition in 2005.
By Clive Nicholls QC, Clare Montgomery QC, Julian B Knowles QC, Anand Doobay and Mark Summers Oxford University Press ISBN: 978 0 19 969281 1 www.oup.com
OF INTEREST TO ALL PRACTITIONERS INVOLVED WITH EXTRADITION An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
The chief examples include the Serious Organised Crime and Police Act 2005 which came into force in 2006 and the provisions contained in the Protection of Freedom Act 2012 and its associated code of practice.
Few legal matters have had a higher public profile lately – and raised more temperatures – than extradition. There has been a spate of widely publicised cases of late involving extradition – many of them unresolved at the time of writing.
Research tools abound, including copious footnoting, and at least fifty pages consisting of tables of cases, primary legislation, secondary legislation and international instruments as well as a list of abbreviations and detailed index.
One recalls the cases of, for example, Gary McKinnon, Julian Assange and the notorious Abu Qatada. It is also fair to say that the majority of these cases are fraught with problems and over the past ten years alone there have been a lot more of them.
Certainly the book will update you authoritatively on developments in this complicated area of law. As author Richard Stone has stated, the main text of this edition was completed as of September 2012 with further material added in December 2012.
Note the observation made by the expert authors of this book from the Oxford University Press, namely that twenty-four people were surrendered under the European Arrest Warrant, a figure that mushroomed to 1,068 in 2010 – a more than 4,000% increase.
Extradition differs from deportation in that it involves, briefly, a request from one state to another to deliver an alleged criminal for trial or punishment. Deportation, as the authors explain, is simply a unilateral act by the deporting state to expel an undesired alien. Over almost 1,000 pages, the book covers the full spectrum of issues pertaining first in Part I to extradition and in Part II, mutual legal assistance, defined as the provision of assistance by one state to another in the investigation and prosecution of crime — and later described as ‘an essential tool in the global fight against national and transnational crime.’ Now in its third edition, this book on the often controversial, complex and everchanging area of extradition is indeed a boon to practitioners. Note that it contains ample resources for research including extensive tables of cases, legislation and treaties, conventions and other international instruments, as well as a detailed index at the back and no less than nine appendices. If you are involved professionally in any aspect of extradition and the issues it raises, you would be well advised to acquire this book. Noting that the law within the text is stated as at November 2012, the authors advise that the up-todate legislative position should always be checked, given the rapid pace of change in this area of the law.
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Development
COMMERCIAL PROPERTY LAW UPDATE 20TH MAY 2013 RUSSELL STONE AND AIDEN BIGGS, ELY PLACE CHAMBERS service and the incidence of estoppel: Canonical UK Ltd v TST Millbank LLC [2012] EWHC 3710, PCE Investors Ltd v Cancer Research UK [2012] EWHC 884 (Ch), Quirkco Investments Ltd v Aspray Transport Ltd [2011] EWHC 3060 (Ch), Avocet Industrial Estates LLP v Merol Ltd [2011] EWHC 3422 (Ch), and HFI Farnborough LLP v Park Garage Group plc [2012] EWHC 3577 (Ch).
THE SPEAKERS The speakers will be Russell Stone and Aidan Briggs of Ely Court Chambers. Russell Stone (1992) is a Deputy District Judge and the leader of the Property Group at Ely Place Chambers. He practices in all aspects of property law. Russell’s recent cases include Guy v Barclays Bank Plc [2010] EWCA Civ 1396, [2011] 1 WLR 681 which concerned an attempt to re-open an appeal concerning rectification of the Land Register in relation to a large development site consequential upon a fraudulent sale and subsequent charge. In addition he has recently acted for developers in numerous claims against purchasers who bought properties “off plan” immediately prior to the recession and who were then unable to obtain finance and complete due to the crash in property prices and also as to their ability to redevelop sites with tenants in situ by reference to reservations in commercial leases. Aidan Briggs (2009) is a barrister specialising in commercial property and the law of Business Rates (NNDR). His recent publications include two articles in the New Law Journal on commercial property matters dealing with the decisions in R (Makro Properties Ltd) v Nuneaton & Bedworth [2012] EWHC 2250 (Civ) and Secerno v Oxford Magistrates’ Court [2011] EWHC 1009 (Admin).
WHAT THE TALK IS ABOUT The lecture will provide a broad round-up of the latest developments in commercial property law, focusing specifically on: • Conditional Break Clauses Several recent cases in the High Court have developed the law on the interpretation and satisfaction of break clauses,
• Commercial Property Options And two decisions on the validity and assignability of options to extend or grant which carry salutary lessons for practitioners in Souglides v Tweedie and another [2012] EWCA Civ 1546, Ridgewood Properties Group Ltd v Valero Energy [2013] EHWC 98 (Ch), and Taylor v Couch [2012] EWHC 1213 (Ch) which brings some clarity to the issue of pre-emption rights. • Underlease Refusal And the decision in Ansa Logistics Ltd v Towerbeg Ltd [2012] EWHC 3651 (Ch) which offers guidance on acceptable reasoning when refusing to grant an underlease, as does Humber Oil Terminals Trustee Ltd v Associated British Ports [2012] EWCA Civ 596. • LVT Jurisdiction Another underlease decision, Crosspite Ltd v Sachdev and others [2012] UKUT 321 (LC), which dealt with the extent of the LVT’s jurisdiction in such matters, as did Birmingham City Council v Keddie [2012] UKUT 323 (LC) and Holding & Management (Solitaire) Ltd v Norton [2012] UKUT 1 (LC). There will also be a brief summary update on other key developments.
Our lectures are held at the offices of Nabarro LLP, Theobalds Road, London WC1. Refreshments 6pm, lecture starts 6.15. ___________________________________________________________________________________________________________________
LECTURE: COMMERCIAL PROPERTY UPDATE: 20TH MAY 2013
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