The Report Winter 2015 by Benham Publishing Limited

The City of Westminster and Holborn Law Society

REPORT The

Winter 2015

MANAGING THE DARK SIDE OF ARBITRATION by Derek Wood QC (cover story)

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The City of Westminster and Holborn Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age, Disability or Sexual Orientation. DISCLAIMER All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between members and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

COVER IMAGE

Derek Wood QC, Falcon Chambers.

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INTRODUCTION

LOCAL ISSUES

President: Hon Secretary:

12 NEWS AND EVENTS 13 TRAVEL

Hon Treasurer:

14 CONVEYANCING FOCUS 19 PROFESSIONAL PRACTICE 22 AGRICULTURAL LAW 26 LEGACIES 30 INTERVIEW

Editor:

Administrator:

Edward Macey-Dare 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 020 7960 7115

34 BOOK REVIEWS The Report

Introduction

LAND LAW AND CONVEYANCING SUB-COMMITTEE At our recent meeting the principal points for discussion concerned the following: 1. New prescribed S21 Notice. Effective from 1st October 2015 and applicable to Assured Shorthold Tenancies ("ASTs") created after that date. While therefore not applicable to prior existing ASTs or statutory continuation ASTs it was crucial to take into account that it was common practice to create ASTs and a few days later serve S21 notices although this will no longer be applicable to ASTs created after 1st October this year as any S21 notice served within the first four months of the creation of the tenancy will be invalid. So for notices applicable to ASTs created after 1st October it will be necessary in addition to providing an EPC and a gas safety certificate to forward a copy of the DCLG booklet “How to rent: the checklist for renting in England” with the notice. 2. New Leasehold Property forms LPE1 and 2. Their promulgation was noted being essentially an adjunct to the SPIF forms and for submission to the landlord’s managing agents for completion. 3. Veyo update. The appointment of a new chief executive with a brief to review and evaluate the product was noted. There was no great expectation that the project would be taken up substantially by the profession. 4. Fracking. The publication of draft regulations by the government was

DIARY

noted. Although the government had announced that planning applications for fracking were to be fast tracked, the proposed regulations would inter alia require potential applicants to obtain numerous licences and approvals before any exploration and/or fracking could occur e.g. a petroleum exploration and development licence, consent from the relevant landowner, an environmental permit - in some circumstances - an abstraction licence, Coal Authority written authorisation and a well consent, somewhat of a mountain to climb. 5. We also referred to three important cases the first two being Orientfield Holdings Ltd v. Bird & Bird and Thorp ano v. Abbotts ano with similar scenarios in one respect in that the sellers were “clever” when responding to SPIF enquiries 3.1 and 3.2. In the former case the sellers were well aware of a planning application for a development not far from the subject property and in the latter case the sellers were aware that the planning authority had consulted on a planning policy which identified the immediate area of the subject property as being one in which large scale housing development would be considered favourably. In both cases the sellers had objected to the proposals but both replied “no” to SPIF 3.1 and 3.2.

December

Although the SPIF forms applicable to these transactions were slightly different, the essential point is that neither seller was considered to have been rather more than “clever” as 3.1 and 3.2 refer to notices etc. affecting “the property” or “a property nearby” and “nearby” has been fairly narrowly construed. Suffice it to say that buyer’s solicitors should routinely expand these enquiries so as to include references to properties or buildings within a given radius - say 600 metres - of the subject property. The third case was Luffeorm Ltd v. Kitsons LLP and involved the purchase of a pub where following completion one of the owners of the company seller opened a pub in a neighbouring village which operated in successful competition with the pub that his company sold. The principal defence to a negligence claim was that the firm’s retainer was limited to advising on a commercial property transaction and not on the business aspects of the purchase. This defence failed and property practitioners warned that it may be necessary to consider aspects of the transaction beyond the confines of their specific brief.

by ADAM MABERLY

May Joint Pub Quiz with the City of London Law Society: TBC

19th 25th

Committee meeting - LBMW Private Client lecture: TBC Tour of Victoria Tour: TBC

June

Risk Lecture: TBC

September

January 20th

February

21st

March 9th 23rd

16th 22nd

Tour of the Supreme Court Committee meeting - Wedlake Bell Property Lecture: TBC

October

Employment Lecture: TBC

November

19th

April 23rd

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Annual Dinner - Vintners' Hall Committee meeting - LBMW Risk/PI Panel discussion/Cyber: TBC Legal Charities Garden Party - Gray's Inn Committee meeting - Wedlake Bell Employment Lecture: TBC Committee meeting - LBMW Private Client Lecture: TBC Committee meeting - AGM Property Lecture: TBC Committee meeting - Wedlake Bell

Introduction

THE PRESIDENT’S COLUMN Dear Members, I was honoured to be elected as your new President on Wednesday 21st October 2015, midway through the AGM. My immediate predecessor, Michael Fletcher, performed his ceremonial duties with aplomb and, having been installed as President, it then fell to me, immediately afterwards, to install the new Senior Vice President, Nicholas Le Riche. I am sure you will all wish to join me in congratulating Nicholas on his elevation and I do hope you will not mind if I use this address as a clarion call to any would-be Junior Vice Presidents out there to come forward and make themselves known, as we are very keen to fill this vacant post as soon as possible. Edward Macey-Dare, President

In terms of the objectives that I have set myself during my year, these are as follows: 1. to drum up increased membership; 2. to provide more events. Dealing with each in turn: 1. Drumming up increased membership I aim to do this in 3 ways, namely: a. Reaching out to more solicitors At the AGM, the Society's articles of association were amended so as to increase our territorial ambit significantly. In that regard, the position henceforth is that any solicitor who has practised or resided in the London postal area (namely, those postcodes commencing with the letters EC, WC, NW, N, E, SE and SW) at any time is eligible for membership. I therefore intend to write to the senior partners of all solicitors' firms in the London postal area, encouraging their members to join. In terms of what you can do yourselves, if you have friends/former colleagues who at one time practised or lived in the London postal area, please do get in contact with them and encourage them to join us without delay. b. Attracting members of the Bar To my mind, the Bar is a hugely untapped resource and one which we should be actively courting. In that regard, it is worth remembering that the Worshipful Company of Solicitors comprises City solicitors only and, as far as the City of London Law Society is concerned (which itself emanated from the Solicitors' Livery Company) Barristers are only permitted to be Affiliate Members; accordingly, we should not be treading on any toes by targeting this particular group and offering them full membership of the Society. Furthermore, given that we are literally the hand that feeds the mouth, I am convinced that barristers would be only too keen to join us if they knew of our existence and what we are all about. Accordingly, I am proposing to

contact all four Inns of Court to see whether they can assist us in getting the message out to their entire membership. c. Encouraging the junior members of the profession Wearing my other hat as Clerk of a City Livery Company, I am acutely aware that the junior members (i.e. those who are just starting out in their careers) are the life-blood of an organisation such as ours, given that they represent both the present and the future; accordingly, we do need to target this particular group. In that regard, I am pleased to report that Victoria Newman has kindly taken over the running of the Junior Lawyers' Division of the Society and, as her employer as well as your President (!), I am expecting her to produce some staggeringly good results, in terms of swelling numbers from the junior ranks. I have no doubt she will be extremely successful and effective in that regard - but, in order to assist her, please do encourage your trainees (and, indeed, your trainees in waiting) to join - annual membership for trainees is £15 and, for students, just £10.

City of London Law Society gave us earlier in the year in connection with the Legal Charities Garden Party) but also I think it would be great fun and should attract plenty of interest from across the board, particularly the junior membership. Furthermore, I have an ideal quiz-Master in mind - none other than our very own Immediate Past President! More on this to follow... To conclude: thank you, once again, for electing me as your President; please do whatever you can to support the Society this year, by getting involved in our thriving subcommittees (all of which do invaluable work) and by spreading the word generally. In short, let us put a stop to the apathy, malaise and disillusionment that is becoming increasingly prevalent in so much of the profession today; let us extol the benefits of being part of this great Society and the wonderful fellowship it provides; and let us encourage those who qualify for membership to stop sitting on their hands, join in and start making a difference. The bottom line is this: the more members we have, the more active we can be; the more active we are, the greater the difference we can make.

2. Providing more events This year, we already have a full calendar of events, as per the attached sheet.

EDWARD MACEY-DARE PRESIDENT

In addition, having got to know the Immediate Past President of the City of London Law Society, Vincent Keaveny, through my livery links (Presidency of that Society carries with it automatic – and concurrent – Mastership of the Solicitors' Livery Company; and Vincent is also a rising star on the Court of Aldermen), we have discussed the possibility of holding a joint quiz night for the two Societies. Not only would this be an excellent opportunity for our respective members to get to know each other (building upon the support that the

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Local Issues

A TALE OF A TUB? EXPERT WITNESSES CONFER AT THE CUTTING EDGE

ELIZABETH ROBSON TAYLOR AND PHILLIP TAYLOR MBE OF RICHMOND GREEN CHAMBERS REVIEW THE 2015 EWI CONFERENCE HELD IN SEPTEMBER 2015 AT CHURCH HOUSE, WESTMINSTER When ‘Gulliver’s Travels’ author and satirist Jonathan Swift wrote ‘A Tale of a Tub’, little did he realise the iconographic power of this somewhat homely image; a tub being a rather lumpen object. However with lawyers from time to time singled out as the victims of his satirical jibes, it’s not too hard to imagine what he might have thought of that voguish term: ‘hot tubbing’. For a number of reasons, however, ‘hot tubbing’ has now become a hot topic, especially so at the recent Annual Conference of the Expert Witness Institute (EWI) held on 24th September 2015 in Central London, where it frequently emerged as the prevailing theme to which much discussion turned. The conference focused on the essential role of the expert witness, who ideally provides a reassuring help in trouble for the barrister or solicitor dealing with a complicated case. The expert witness is he, or she, who is charged with the often complex task of putting forward reliable and accurate evidence that, more often than not, may determine the outcome of a case.

Magna Carta ‘Hot tubbing’ certainly featured in many of the discussions and debates. In this 800th anniversary year of Magna Carta, it was brought into play as a means of launching the conference, with the suggestion that the confrontation of the dissolute King John with the aggrieved barons at Runnymede might be, in a number of respects, a ‘hot tub.’ Well, er - not really - unless you are tempted to point out facetiously that King John had got himself into hot water. In the modern context a ‘hot tub’ is fundamentally, an inquisitorial (rather than adversarial) discussion if you will, held usually in court with possibly the judge eliciting information from the advocates, and parties in a dispute, as well as, yes, the expert witnesses.

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As King John was confronted by twentyfive barons attended, by some two thousand armed knights, the king’s many previous opportunities for discussion had long since passed. As he was an illiterate despot, reasoned debate was not exactly his strong suit - so the notion that the events at Runnymede were some sort of medieval version of hot tubbing is whimsical at best. But it’s a thought - and it was rather an effective way, as it happened, to kick off what was to be an important conference.

Insight and controversy Chaired by Amanda Stevens, the Conference proceeded apace, with speaker after speaker imparting much useful, insightful and sometimes controversial comment on the future of the justice system in general and the varied role of the expert witness in particular. The Conference as a whole was distinguished in particular by useful, organized and high quality debate. What emerged as the keynote speech was delivered by Dr John Sorabji. As Senior Fellow UCL, Judicial Institute - and Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls, he covered a number of important points. The first centred on the problem of Litigants in Person (LIPs) whose numbers have proliferated as an unintended consequence of LASPO. As litigants continue in droves to appear in court without the legal representation they cannot afford, court procedures have had to evolve and adapt in response. The role of judges has therefore undergone gradual change, and so has the use of experts. Judges now find themselves participating more actively in proceedings, with a correspondingly more active role for expert witnesses. The overall objective is to adapt court procedures in line with CPR 3.1A which concerns case management and

unrepresented parties, i.e. where at least one party is unrepresented. The Rule includes the stipulation that ‘the court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective.’

What experts really think With all this in mind, there were comments by Stephen Webber of the Society of Clinical Injury Lawyers on ‘what solicitors really think of experts’. Other comments related to what experts think of solicitors, particularly the quality - or sometimes the lack of it - in the matter of solicitors’ instructions. ‘Pitiful’ was one of the terms used. Generally, greater attention to precision, detail and accuracy was called for.

‘We are flourishing!’ Another highlight of the Conference included the EWI Chair’s address by Sir Anthony Hooper, which focused on the fact that there is still no formal certification procedure in place for expert witnesses. The matter however, has already been reviewed via a pilot study at University College London, anticipating the day when a proper system of certification is set up (and possibly a corresponding rise in fee levels for exerts!). ‘We are flourishing,’ stressed Sir Anthony, elaborating in detail on the essential role of expert witnesses - and the vital contribution they make to the justice system and to justice itself.

Local Issues

PROFESSIONAL MATTERS SUB-COMMITTEE The most important issues we have considered in the last quarter are set out below. 1. Fraud - Lawyers were often targets of cyber criminals. Often criminals wish to get hold of a firm’s bank account details, pass codes and other confidential details. Sometimes clients’ email accounts are hacked. One member firm had its entire phone system transferred to a mobile phone. The Law Society has issued a practice note aimed at helping law firms recover if they have fallen victim to a client account scam. Where firms were victims there could be an issue as to whether their banks or professional indemnity insurers were liable.

2. Interventions - We are concerned that the Solicitors Regulation Authority (SRA) seems to have recently taken a more aggressive approach to interventions, without properly considering alternative risk prevention options. This is at great cost to the principals (and often employees) involved and frequently to their clients as well as being a great monetary and reputational cost to the profession. In the last 12 months one of our members successfully defeated 6 interventions at the adjudication level. A firm has few remedies for a wrongful intervention, which is still likely to destroy its practice. It has 8 days in which to apply to set aside the intervention notice. With its other concerns and bank accounts frozen this is often impractical. It is a matter of concern that the SRA apparently keeps no statistics as to how often its suspicions of dishonesty have proved unfounded.

In our preliminary view lack of knowledge and recklessness should be treated as two different concepts. Lack of knowledge should mean no intent due to ignorance. Recklessness is a form of dishonesty where the person guilty of it does not care whether he/she might cause harm, We are also concerned that the SRA seems to wish to bring all fining powers in-house, and appears to be trying to direct the Solicitors Disciplinary Tribunal (SDT) as to what sanctions it should impose. The SDT is an independent court and its sanctions are based on its published Sanctions Guide, and on its own case law, and judgments on appeal. In our view it (not the SRA) should deal with all serious cases. Members are urged to read this consultation. I would welcome any feedback of views to aylmer.julian@btinternet.com

by JULIAN AYLMER

3. Changes to the Separate Business Rule. These will allow solicitors to run separate businesses offering non-reserved legal services, provided that their clients are informed that these separate businesses are not regulated and are not covered by professional indemnity insurance requirements. We remain concerned that clients will not understand the risks they are taking.

4. Changes to the Accounts Rules. These provide that accounts should only be qualified where there is a substantial risk to client monies. They place greater emphasis on the accountant’s professional judgment. This should result in fewer qualified accounts. We remain concerned that too many firms are being exempted from the requirement to have an annual audit, and at the lack of any requirement that accountants auditing a solicitor’s accounts should have specific training for carrying out what is very different from an audit of a company’s accounts.

5. We intend to respond to the SRA consultation “A question of Trust” (which closes on 31 January 2016). This raises important issues as to what should be considered disciplinary matters (including whether this should include matters unrelated to the regulated person's professional work) and what factors should be taken into account when considering sanctions. Question 1 groups the motivation or culpability of individuals or firms who fail to meet rules or obligations into three broad categories. (i) 'No intent' describes acts or omissions which occur as a result of a mistake or accident or were otherwise unintended. (ii) 'Lack of knowledge or recklessness' describes acts or omissions where the person or firm should reasonably have known about and/or taken into account a rule or professional obligation, but did not do so. Acts or omissions are more serious if they are persistent or repeated. (iii) 'Intent' describes breaches where a person or firm deliberately or knowingly acts contrary to their professional or regulatory obligations. Acts or omissions are more serious if they are persistent or repeated.

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Local Issues

TOUR OF OLD BAILEY ON THE 8 SEPTEMBER 2015

The tour started just before 6pm in the famous court number 1. Our tour guide was Charles Henty whose official title is Secondary of London, Under-Sheriff and High Bailiff of Southwark. He is in charge of running the Central Criminal Court, otherwise known as the Old Bailey. He was therefore the ideal guide for our tour.

he tour started just before 6pm in the famous court number 1. Our tour guide was Charles Henty whose official title is Secondary of London, Under-Sheriff and High Bailiff of Southwark. He is in charge of running the Central Criminal Court, otherwise known as the Old Bailey. He was therefore the ideal guide for our tour. Charles' passion and enthusiasm for his role, managing what is arguably the most famous court in the world, was evident at all stages of the tour. He was full of interesting and entertaining anecdotes about every aspect of the building and its history.

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Charles spent some time at the beginning of the tour detailing various anecdotes about the different ways that court procedure has changed over the course of the court's long history. One of my favourite anecdotes was Charles' explanation of the origins of the expression 'to press the defendant'. He explained that this expression was derived from a previously used method of trying the defendant, once practised in the Old Bailey. This involved the defendant being made to lie down before the advocate who would then proceed to accompany each of his questions to the defendant with a weight which would be piled onto the defendant's chest, quite literally pressing the defendant until he admitted his guilt, or otherwise...

Following our introduction to court number 1, we were then lead into the impressive Grand Hall, which is usually not accessible to the public, with its impressive paintings and marble columns. Henry indicated where the building had been bombed during the Second World War and how meticulously it had been reconstructed afterwards so that almost no difference could be seen between the reconstructed and original sides of the hall. On our way down to the cells Henry pointed out a shard of glass embedded into one of the walls, a remnant left behind from the IRA bombing of the building in 1973. We were only shown the lowest security cells, however even those did not look very inviting!

Local Issues

MANAGING THE DARK SIDE OF ARBITRATION by Derek Wood QC

Resolving legal disputes by arbitration rather than by court proceedings has many well-advertised virtues. It provides for due process before an impartial tribunal leading to an enforceable award which is as much binding on the parties as a judgment by the court. If it is a domestic English or Welsh arbitration, the Arbitration Act 1996, in contrast with the increasingly bureaucratic Civil Procedure Rules, empowers arbitrators, sitting alone or in a panel of three, to adopt procedures suited to the circumstances of the parties and the case which are far more flexible and adaptable than are available in court. If it is an international arbitration it will in all probability be conducted under rules or protocols which are equally flexible. The parties - or an institution on their behalf if they cannot agree - will choose the arbitrator. He or she is likely to be a respected person who is knowledgeable in the area of trade or business from which the dispute arises, and need not be a lawyer. The parties do not have to wait anxiously to find out the name of the judge who is going to try their case, only to be disappointed to find that he or she has no familiarity with the subject-matter - or to be told at the last minute that the case cannot be listed for hearing because of the pressure of other court business.

What is the problem? In short, it is time and cost. This is the dark side. Many arbitrations, despite the liberating measures in the 1996 Act, have turned out to be court litigation by another name. The whole laborious process of statements of case, disclosure of documents, expert meetings and exchange of witness statements rumbles on. Among litigation lawyers old habits die hard. And there is the extra mouth to feed: the arbitrator, with his or her fees and expenses. There is no taxpayerfunded judge sitting in taxpayer-funded premises in an arbitration.

An arbitrator will be engaged with the case from the start and will be monitoring it throughout. Dates for case management or final hearings can be relied upon. If the case proceeds to an oral hearing, that will take place in private, at a place which suits the parties. Much of the business will be carried on by e-mail or telephone or video link. Ultimately there may be no need for an oral hearing. The tribunal’s decision can be made on the basis of documents only, including the parties’ written submissions. The rules of court, by contrast, do not permit any case, however much it may turn simply on agreed facts or documents, to proceed without an oral hearing.

Arbitrators’ fees are and always have been a conundrum. The principal rival models are hourly rate versus a percentage of the amount in issue. Neither is entirely satisfactory. All experienced lawyers know that there is no correlation between the time it takes to disentangle a dispute and the amount of money at stake. Both systems of charging can lead to high fees.

Opposing parties who find themselves in arbitration rather than in court are typically there because of an arbitration clause in a contract or similar document requiring them to refer their disputes to this method of resolution. Arbitration agreements regularly appear in standard form contracts. Yet, despite the merits of the process, many express dissatisfaction with it. Those who choose arbitration voluntarily, without a prior arbitration clause in place, are hard to find.

The arbitration community is bringing forward a new answer to these problems, exploiting the opportunities opened up by the 1996 Act but avoiding the pitfalls: the fast-track fixed-fee arbitration. Falcon Chambers Arbitration service (FCA) has produced a model, focusing on members’ expertise in real property disputes, which is not tied to the value in issue and eliminates hourly charges. It offers parties in dispute different options, depending on how much they wish to spend and how quickly they want the dispute resolved. The eye-catching features are the 20-day and 40-day arbitrations, to be determined, if junior counsel is appointed as arbitrator, for fixed fees of £3,000 and £6,000 respectively. The 20-day arbitration is

conducted on documents-only contained in a single bundle of not more than 350 pages, including the parties’ submissions. The arbitrator undertakes to use best endeavours to deliver an award within 20 days of receiving the bundle. The 40-day arbitration may involve up to three 350page bundles, and there may be a hearing. The 40 days run from delivery of the bundle or the close of the hearing. If Queen’s Counsel is appointed the fee will be higher, but nevertheless fixed. An extra fixed fee is payable if the arbitrator has to deliver a separate award on costs. The system is supported by a simple arbitration agreement entered into by the parties and their selected arbitrator, and by straightforward single-page standard directions, which can be amended to suit the case. Because the 1996 Act applies, party-autonomy predominates, subject to the underlying obligation of the arbitrator under section 33 to ensure a fair and effective disposal of the case; and elaborate protocols and procedural paperwork are dispensed with. There are fail-safe measures which can be taken if it becomes clear, as the case progresses, that the procedure needs to be reviewed. The model has attracted wide interest. It has the potential to restore the reputation of arbitration as a speedy, cost-effective method of dispute-resolution, incentivising everyone involved in the process to bring cases to an early conclusion at a sensible cost. Derek Wood is a member of Falcon Chambers, a Fellow of the Chartered Institute of Arbitrators and a Chartered Arbitrator.

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Local Issues

REGIONAL REVIEW - NOVEMBER 2015 Local Law Society events and news

SRA helps law firms provide more services to consumers

Opposition to criminal court fees grows

South London Law Society held their annual dinner in the impressive surroundings of the Kia Oval, Kennington. The event was attended by over 70 members from a number of South London firms; guest speaker Joe Egan, Deputy Vice President of the Law Society paid thanks to SLLS for their work in responding to Law Society consultations. www.southlondonlawsociety.co.uk

The Solicitors Regulation Authority is helping law firms that want to expand their business beyond traditional legal services by publishing new guidance on the Separate Business Rule. From November, the SRA will change its rules to make it easier for solicitor-owned firms to be involved in separate businesses that offer a range of professional services. This would help them compete with other professional firms that have created similar multi-disciplinary practices.

The Independent has reported that the House of Lords last night rejected the government's criminal courts charge. The motion of regret was tabled by the shadow justice minister, Lord Beecham. The Law Society worked closely with Lord Beecham before the debate, briefed him, and he quoted us during the debate citing the examples we provided of the impact of the fees. Read the Independent article. Higher court fees making society less fair and less just.

The City of Westminster & Holborn Law Society held their AGM: Mr Edward Macey-Dare of Lee Bolton Monier-Williams took over as new President of the Society from Mr Michael Fletcher. www.cwhls.org.uk

SRA campaign launched on ‘A question of trust’

Criminals raid 50 firms in cyber attacks this year

The future of Britain in Europe: legal services

The SRA has launched ‘A question of trust’ campaign to give everyone a chance to have their say about action taken against those solicitors who fall short of the expected standards. It will run until the end of January 2016.

If the UK's relationship with the rest of the European Union were to change as the result of significant renegotiations, or the UK chose to give up its membership, the effects would be felt throughout the legal profession. The Law Society has published a detailed report looking at the relationship and potential impact of changes through the legal lens.

Up to 50 firms have fallen victim to cyber attacks in 2015 as criminals find ever-more sophisticated ways of targeting the legal sector. The SRA revealed the number of attempted thefts has continued to rise this year, with between £40,000 and £2m stolen in each case.

Solicitors are invited to complete the SRA’s professional standards survey to tell them what the SRA should do when things go wrong. Scenarios in the survey include solicitors drinking and driving, losing or having files stolen, and misusing client money. You can also take part in the SRA’s consultation.

The report also explores the issues solicitors and the legal services sector as a whole will face, should the European political landscape change. In compiling the report, the Society has interviewed solicitors in the City and other London firms, the regions and Wales to gather views on the impact of an exit from the EU on the UK legal sector. Working closely with the Society's specialist committees, the research team has carried out an analysis on the effects withdrawal would have on different areas of law and the rights granted under EU law.

Application and training overhaul set to speed up CQS applications Changes to the Law Society's Conveyancing Quality Scheme (CQS) accreditation process will vastly reduce the amount of time it takes to re-apply for the scheme. There will also be major changes to the training for the quality mark. Following extensive research, feedback from members, the results of an online survey, and ten roadshows up and down the country, the Society has developed a number of areas for improvement to CQS.

The report covers: • the impact on specific areas of law • the impact on the business of law and England and Wales as a global legal services centre and jurisdiction of choice • the impact of alternatives to membership of the EU if the UK were to leave; eg. participation in the 'internal market', being subject to rulings from the Court of Justice of the European Union and contribution to the EU budget. Earlier this month the Society published an economic modeling report which found that the legal services sector would be disproportionately disadvantaged compared to the whole UK economy if the UK were to leave the EU. Read our press release and report on economic modeling.

Criminal legal aid The Law Society has called on the Legal Aid Agency to urgently address the widespread concerns about the procurement process. In a letter to the LAA the Society has called on officials to urgently address the widespread concerns about the contract procurement process. Read more The Society recommends that firms write to their MPs to tell them about their experiences of the tender process, and the potential consequences for their constituency. Our campaign briefing includes a template letter.

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Changes include: • Amendments to the application process including the introduction of rolling annual assessment. Full re-application will now only take place every three years. • Introduction of simplified mandatory training. New training will cover the CQS protocol and also financial crime for new staff, whilst new modules for conveyancing practice and risk and compliance for existing staff have been introduced. • The CQS team will also undertake more robust monitoring of the scheme to ensure greater compliance with the CQS protocol. Find out more about CQS here: http://www.lawsociety.org.uk/supportservices/accreditation/conveyancing-quality-scheme/

Legal sector warns that AML report findings are misleading Anti-money laundering supervisors across the UK legal sector have warned that a new report published by the Home Office and HM Treasury on the risks of money laundering and terrorist financing lacks balance and, by its own admission, is not backed up by robust intelligence.

Experts warn the legal sector is particularly vulnerable to cybercrime as organised gangs are attracted by the large sums of money being moved to and from firms. Scams include ‘phishing’ to gain people’s trust and make them volunteer bank account details, malware to infect computer systems with a virus, redirecting sensitive emails and transferring standing orders.

Cyber-security is an increasing concern for solicitors, survey finds A recent article in Managing Partner provides a useful reminder for solicitors and law firms about the importance of taking cyber-security seriously. The Law Society provides help and information on cyber-security, including: • practice note on protecting your firm if you fall victim to a scam • free CPD course on cyber security for legal and accountancy professionals Confidential and expert support is available through Law Society Consulting. To find out more, contact us today.

Firms not responding to digital age, annual snapshot shows Less than a quarter of law firms have made changes to respond to the digital age, despite 80% identifying the need to, according to a long-established annual industry snapshot published today. In the Law Firms Survey 2015, compiled by consultancy PwC, 80% of respondents said they recognised the importance of digital in their future strategies. However just 23% have so far made changes to how they operate. The majority of firms have not yet enabled their websites or mobile applications to enable alternative interaction with clients, according to the survey. But the report did show that firms are starting to adopt diverse organisational structures and are using paralegals and technology to boost efficiency. Firms are also using contract lawyers to flex the number of fee-earners according to activity levels.

Local Issues

Excellence Award winners announced

SRA Training for Tomorrow: Towards a new assessment framework for legal education and The Law Society's Excellence Awards celebrate the best training in the legal profession. It is a chance for us to draw attention to the outstanding work solicitors do to meet their clients' needs, managing and growing their practice and in pursuing justice. The awards ceremony was held on Thursday 22 October at the Hilton Park Lane Hotel, hosted by BBC journalist Mishal Husain and attended by more than 600 people. There were 16 winners in areas such as pro bono, technology, diversity and human rights. Congratulations to all the winners and finalists!

Consultation responses Proposal on the provision of court and tribunal estate in England and Wales - Law Society response The Society has responded to the Ministry of Justice proposals to close 91 courts and tribunals in England and Wales.

HMRC and HM Treasury consultation on simplification of the tax and national insurance treatment of termination payment The Society has published its response to the government's consultation on reforming the tax and national insurance exemptions for termination payments.

Letter to the Ministry of Justice Employment Tribunal Fees Review Team The Society welcomes the Ministry of Justice's review of the impact of Employment Tribunal fees.

House of Lords Select Committee on the Equality Act 2010 and Disability The Society has given evidence to the House of Lords Select Committee reviewing the implementation of the Equality Act in relation to disability.

Migration Advisory Committee call for evidence The Society has published its response to the MAC call for evidence on skilled worker migration to the UK.

Department for Education call for evidence on special guardianships

Any move towards choosing new routes for entry to the solicitors' profession must be made following proper consultation with the profession.

SRA open consultations Quality Assurance Scheme for Advocates The Joint Advocacy Group (compromising of legal regulators Bar Standards Board, Solicitors Regulation Authority and CiLEX) is consulting on minor changes to the operation of the Quality Assurance Scheme for Advocates raised during the judicial review process.

Practice Notes Use of interpreters in criminal cases This practice note includes detailed advice on the use of interpreters pre-trial in the police station and in court. During the course of a criminal case, you may have to arrange a language or sign language interpreter for your client. This practice note advises practitioners on the use of interpreters pre-trial in the police station and in court. Under the Equality Act 2010 you must make reasonable adjustments to prevent disabled clients from receiving a lower level of service compared to those who are not disabled.

Defending possible victims of human trafficking

Events Upcoming key conferences are highlighted here; Anti-money laundering and financial crime conference 2015: keeping pace with change This conference will provide the most up-to-date information from people who are developing, implementing and enforcing anti-money laundering (AML) policy, regulations and guidance. Experts from across the AML spectrum will explore recent changes in regulation and the impact they are having on the legal profession. (18 November) Compliance support forums for COLPs/COFAs: protect your firm from cybercrime These timely forums will provide vital support and guidance for COLPs and COFAs on cyber-security and how it ties in with your regulatory obligations, cyber threats and cyber-attacks (phishing and hacking), and their impact. (various dates) Private Client Section: cross-border conference 2016 The 2016 cross-border conference will focus on the Brussels IV regulation which came into effect on 17 August 2015. Expert speakers from various jurisdictions will cover cross-border issues for English law and across Europe, the impact of European succession from a UK and European perspective, offshore tax planning in the current climate, and contested probate. (03 March 2016) Contact details Regional Manager: Mark Hudson Email: mark.hudson@lawsociety.org.uk Telephone: 07794 335818 Twitter: @LSGreaterLondon

The Law Society has updated its advice on defending possible victims of human trafficking. The advice now includes information on the EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, and new defences available to victims of human trafficking under the Modern Slavery Act 2015.

The Society has published its response to the Department for Educationâ&#x20AC;&#x2122;s call for evidence on special guardianships.

FPRC consultation on vulnerable witnesses and children The Society has published its response to the Family Procedure Rules Committee consultation on vulnerable witnesses and children.

Law Society responds to MoJ consultation on reform of judicial review The Society has responded to MoJ's proposals for the provision and use of financial information when applying for judicial review or a costs-capping order.

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News and Events

WINE OF THE SEASON with Conal Gregory, Master of Wine

SUCCESS STORY: THE LEGAL CHARITIES GARDEN PARTY "Following the success of this year's event, the future of the Legal Charities Garden Party seems secure - at least for the moment. In that regard, distributions have now been made to all 5 of the legal charities who we continue to support (namely: The Solicitors' Benevolent Association; The Barristers' Benevolent Association; The CILEX Benevolent Fund; The Institute of Barristers’ Clerks' Benevolent Fund; and LawCare) and we are already planning the next event with those beneficiary partners. Next year, the Garden Party will be held on Thursday 16th June, in the gardens of Gray's Inn (which was the setting of the inaugural Legal Charities Garden Party back in the 1960s). Please do put this date in your diaries now and remember to support the event by buying as many tickets as possible (when they become available), spreading the word and turning up on the day." by EDWARD MACEY-DARE

Law Society Special Offer... 2014 Jean Colin Pouilly Fume £75 per 6 pack, usually £16.99 per bottle. 2013 Sottano Seleccion Malbec £75 per 6 pack, usually £16.99 per bottle.

The white Burgundy district of Mâconnais tends to be overlooked but creates stunning value wines. Try the nutty, newly arrived 2014 Mâcon-Burgy ‘Les Trois Terroirs’ made by Olivier Fichet. He avoids oak entirely to ensure the clean fruit of the Chardonnay shines through. It can be safely cellared for up to three years. Lightly chilled, it accompanies fish and particularly shellfish well. £10.95 (Stone, Vine & Sun).

For a light autumnal red, be patriotic and enjoy an English vineyard wine. One of the best is Wickham Row Ash Red made mainly from Triomphe d’Alsace grapes. The vineyard was founded in 1984 at Shedfield near Southampton and now extends to seven hectares. The 2014 has a bright cherry character, soft tannins and appealing balance. It is delicious with lamb, cured meats and cheeses. £10.99 (Waitrose online and in 23 branches). Sponsored by NFU Mutual Bespoke, high-value home insurance tailored to protect everything you value, including art, antiques, fine wine and more. Visit www.nfumutual.co.uk/bespoke for further information.

other great deals at our shops, call: 01293 771 305 or go online: www.thevineking.com 12

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Travel

SIMPLEXITY TRAVEL MAKES IT AS EASY AS - ONE, TWO, SKI. Everyone knows that organising a group holiday - be it for friends or for family can be hard work. But when it comes to a ski trip, with add-ons like insurance, equipment, tuition and passes, it can be even more of a headache.

hich is where Simplexity Travel comes in. One of the UK’s most successful and innovative travel management companies, it is experienced in arranging all types of ski holiday - whether for families, large groups or indeed for team building exercises and corporate entertaining many with very specific, and at times unusual, requests!

Because Simplexity is not a tour operator, it is not bound to specific resorts and accommodation. What’s more, every ski experience is tailor-made to a client’s needs and tastes. It is not difficult to see why employing a company such as Simplexity would be so appealing to time-pressed individuals. Put simply the company can offer a one stop shop, able to organise everything, whether it’s scheduled flights, private jets, helicopter transfers, luxury chalets, private tuition or restaurant reservations. Its modus operandi however is not only to execute every bespoke trip with

perfection and discretion, but to give personal service 24 hours a day, 365 days a year. A very useful facility should a last minute crisis at work affect travel plans.

themselves down a mountainside, Simplexity’s experts will point them in the direction of resorts such as Val d'Isere and Kitzbühel which can offer non-skiers a myriad of activities.

Simplexity can offer a range of allinclusive options in the world’s top ski resorts. But should you prefer to do your skiing off the beaten track it can assist there as well. How about for instance the powdery pistes of Oukaïmden? Morocco's only true ski resort boasts some serious slopes accessed by North Africa's highest lift and, less conventionally, donkeys. Simplexity also enjoys connections with the world’s most luxurious private ski chalets, from New Zealand to Zermatt, many with indoor swimming pools, outdoor hot tubs, gyms, hammams, private cinemas and Michelin-trained chefs as standard.

For more information on Simplexity Travel Management, please see www.simplexitytravel.com or call Mark Smith, Head of Business Development, on 0203 535 9290.

For the more adventurous kite skiing and heli-skiing both offer the chance to experience some of the most sensational settings and conditions imaginable. While for those who don’t wish to hurl

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Conveyancing Focus

What is Adverse Possession (Lack of Title)? Title and Legal Indemnity Insurance policies aren’t required for every conveyancing transaction. However, when you do identify an issue or potential issue for your clients it’s important you can source an appropriate policy quickly. PSG, through its Financial Services arm, are fully integrated with the CLS Conveysure range of products. There are over 35 residential and commercial policies to choose from, including Adverse Possession Insurance which we asked CLS to explain in more detail. Where policies fall outside of the criteria for the online policies, bespoke solutions can be created as a cost effective solution to the issue in question. What is Adverse Possession (Lack of Title)? Adverse possession is where there is a parcel of land for which the owner does not have documentary evidence of title to all or part of it. An example of adverse possession is where there is an area of land between two houses that is not registered, and one of the owners starts to use the land as part of their garden by perhaps fencing it in or planting hedges to demarcate it as their own.

Case Study: A property situated in a rural area had approximately an acre of land attached to it. Part of the land incorporating the Property had been “claimed” by the proposed Insured (‘the Claimed Land’). The Claimed Land is shown yellow on the plan below:

So why did this case fall outside a standard risk that could be issued online? The Insured wished to make an application to the Land Registry to register the Claimed Land. The terms of the online policy state that the Insured will not “communicate about an Insured Risk with a third party”. By contacting the Land Registry, this condition would be breached therefore potentially invalidating the policy should a third party seek to claim a superior title.

The CLS Solution 1. In this instance the proposed Insured had sought Counsel’s opinion on the validity of the adverse possession claim, and the

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opinion stated that an application to the Land Registry would be successful. A Counsel’s opinion can be a very useful tool in determining whether insurance can be provided for a risk.

can take bespoke measures to allow an Insured to seek specific solutions to their property transaction problems, which can push through the sale, and provide comfort for all parties.

2. The client had also provided statutory declarations which identified continued and uninterrupted use of the Claimed Land in excess of 40 years. In order to claim adverse possession of land, 12 years use and possession of the land is required by the Land Registry (i.e. to be awarded possessory title).

The full range of CLS Conveysure® policies is available online via PSG Connect with bespoke quotes available offline through the PSG Financial Services Team.

3. CLS provided a bespoke solution which: a) allowed the Insured to apply to the Land Registry for possessory title to the Claimed Land, based on adverse possession, taking into consideration the use and length of occupation of the Claimed Land. b) although allowing an application to the Land Registry as referred to above, the costs associated with doing so were excluded from the policy as the policy is designed to cover the risk of a third party claiming ownership of the Claimed Land, and not in covering the costs of the Insured to perfect its title. This shows that with enough information and time, an Insurer

For more information on any products and services from PSG: Email: chandrasharma@propertysearchgroup.co.uk Visit: www.psgconnect.co.uk/londoncentral or Telephone: 01689 896171

Conveyancing Focus

When change is not a good thing - Planning This year’s Housing Bill intensified the focus on housing supply, and for good reason: if we are to reach the required number of new dwellings a lot of land needs to be found and a lot of property needs to be built. Indeed, according to the Barker Housing Review, 250,000 new dwellings need to be found per year. This increases the risk of development threatening your client’s investment, the surroundings, the view and potentially the value. This remains an issue whether it relates to a residential property or a commercial development. In the race to try and achieve this magic number there has been a marked increase in the change of use applications to convert office blocks to multiple apartments. However, commercial conveyancers and their clients must take care on the setting and suitability of their proposals. Paul Addison, Managing Director of DevAssist, who provide professional opinions on planning reports, says: “There is a clear need to understand the issues before the costs start to mount”.

Case study This planning application was lost on appeal. It concerned plans to redevelop three office buildings, within a conservation area, as 24 flats. Whilst the number of flats proposed was nothing out of the ordinary, the impact of the scheme on its surroundings was considered to be a problem. The removal of trees to accommodate car parking and the scale of development on a part rural, part brownfield plot would make it considerably more visible than the existing buildings. It was considered to give the site an urban appearance. There was little development within the conservation area and it was considered that this scheme would not contribute to the character of the locality. The architecture of the village in which the site sat was built in the Arts and Crafts style, fashionable between 1800 and 1910, and the design failed to reflect this. In addition, the site was designated as having a significant flood risk and alternatives had not been assessed in response to this. Indeed, the removal of trees could lead to potential harm to

biodiversity, given the proximity to a Site of Importance for Nature Conservation (SINC). Understanding the context is at the heart of a successful planning application. STL is delighted to offer commercial conveyancers the DevAcquire report, which ensures your client understands the opportunities or restrictions that could impact on their potential investment. The report scans up to 75m beyond the full perimeter for sites up to 50 acres. It assesses land use zoning restrictions or past activity, permissions or refusals that signpost sensitivity for commercial development and also includes change of use. Knowing up front, allows your client to review the risk and/or the reward on the asset.

Next steps For more information on any of the interpreted planning and development risk reports from DevAssist, call STL on 0800 318611 or email info@stlgroup.co.uk

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Conveyancing Focus

Technology in Conveyancing Opportunity or Threat? The technology revolution is transforming conveyancing, from big ideas such as the Land Registry’s ambitious plans for the digitisation of Local Land Charges to online chain management and electronic transactions. What does this changing landscape mean for conveyancers? With such high value transactions the conveyancing profession is finding itself under attack from cyber criminals who are targeting the profession. Their methods are wide, varied and most importantly clever; they are obtaining mortgage funds by fraud and, as we have seen in this year’s SRA Risk Outlook, the creation of cloned vendor firms (bogus firms) to steal client’s money is a serious threat. There is also now an expectation that conveyancers will utilise the range of IT services available to them to safeguard their client’s transaction. Professional negligence claims are on the increase and property solicitors are more likely than any other member of the profession to face a claim. Lack of awareness of the risk management and compliance services that are available in the modern era is not likely to be accepted as a defence when faced with a claim.

So what can conveyancers do to help themselves? Firstly don’t panic! As the conveyancing world changes, it can easily seem daunting. However you don’t need to be particularly IT literate to compete and thrive in it. Tony Clarke, Operations Director at Searchpoint explains why it is imperative that firms and conveyancers move with the times; “Conveyancing is a vibrant and dynamic area of the legal profession. There’s a lot of support and a range of IT based services that conveyancers can call upon to help mitigate risk and protect their clients. Being aware of and employing these services shows that you have acted responsibly and with reasonable skill and care. Ignoring technology and the risk management tools that are available for conveyancing solicitors isn’t an option and could be the biggest risk of all.’

Website Security - First and foremost is the security of the online services that you use, how easy is it to hack and for criminals to gain access to your client’s information? There are two quick ways for you to test this; does the website address begin with https and show a locked padlock before the web address? If so then the website is secure and uses encrypted data making it harder to get into. Secondly you should have a password to gain access. This password should not be visible to anyone including the owners of the website. You can test this yourself by phoning your service provider and asking for your password, if they are able to give it to you then it is recorded somewhere which means it can be obtained and used fraudulently.

Vendor Firm Clones - Lawyer Checker is a commercially available service, with a database which determines whether the bank account searched against has a track record of successful use within conveyancing. Although acting innocently the results of being duped by a bogus law firm could be devastating for a firm including removal from lenders panels, stress, distraction and brand damage.

Electronic AML Checks - These are an excellent way to support your Customer Due Diligence and help ensure you are meeting your obligations under the Money Laundering Regulations 2007. As well as matching personal data with recognised and reliable sources such as the Electoral Roll they also provide matches against negative information sources such as mortality databases, PEPs and Sanctions Lists from all over the world.

planning applications, energy exploration schemes and infrastructure projects. Searchpoint are the leaders in this type of screening, providing you with a report which you can give to your client. The report details the hazards that have been screened for with the results in a traffic light format. This shows thorough screening on behalf of the solicitor but also provides protection, as it is up to the client if they wish to order additional searches, the solicitor has done their bit in informing the client of the potential problem.

Auto Boundary Mapping - This is a new feature which is starting to appear on a number of search provider websites. The freehold title boundary that surrounds a property is automatically shown when a case is created. This helps ensure the searches are ordered on the right property. It can also save time when ordering searches as you don't have to find and attach a boundary plan. instead you have the option to select the freehold boundary as registered at Land Registry via an interactive map. Tony Clarke - is Operations Director of Searchpoint, an online search partner. More information can be found at www.searchpoint.co.uk

Search Alerts - These are widely available and used by most online search providers. A property is screened against various databases to reveal if a hazard is present, which could affect your clients purchase. These include hazards which you may not be aware of such as;

Proactive, Professional, Problem Solving. Searchpoint provides a comprehensive range of conveyancing searches, insurance products and compliance tools for the conveyancing professional. T. 0845 680 5608 l E. enquiries@searchpoint.co.uk l www.searchpoint.co.uk

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Conveyancing Focus

Fixing The Roof While The Sun Shines As I write this ironically titled editorial the radio weather report has officially declared that a full months rain has just fallen in the last five hours across Dorset, Hampshire and much of the Thames Valley. Extreme and unforeseeable or highly likely and pretty much predictable approaching a Bank Holiday? So with plenty of experience and a healthy dose of English cynicism, why are we surprised by and always unprepared for even gradual changes in circumstances. How many of us have sat back with cool drink in the sunshine and said ‘I must clean out that guttering this weekend’ then done nothing? Conveyancing is not that different. Every year we see the peaks and troughs, the property market is steadily recovering with increased instructions and higher valuations but it’s by no means booming. On the surface this should be the perfect time to take a look at the roof and prepare for extreme and unforeseeable or highly likely and pretty much predictable. Of course it’s well recognised that the collapse of the housing market put a huge strain on the conveyancing profession, many practitioners left the profession altogether (some never to return). Conveyancing is the bedrock of many law firms income streams but so rarely is its potential as a growth vehicle recognised deliberately developed. In many firms, conveyancing is almost a loss leader. Fine if this is part of a conscious strategy, but irresponsible if it’s an un intended or unrecognised consequence. Depressed fee levels are still the norm in many practices and as volumes of instructions increase, the need to keep up with the workload is preventing many Managing Partners and heads of department from recognising key issues affecting their firm’s profitability and productivity. They’re too busy driving the car to stop and put petrol in it.

Let’s look at a case in point. Thomas Legal Group is a niche law firm specialising in property law. They are conveyancing experts dealing with all aspects of residential and commercial property conveyancing. Like a lot of busy practices they didn’t realise they had an issue in terms of producing new quotations and converting enquiries into instructions. By working with PIE and adopting MYFEES their team have increased conversion of enquiries to instructions from roughly 1/3 to

more than 3/4 while increasing average fees by more than 10% per case. Step changes like this didn’t come over-night, but detailed Management Information accessible through MYFEES allowed Thomas Legal Group and PIE’s Legal Services Manager, to identify the most effective steps to move their business forward.

Simon Thomas; “Once we’d been using MYFEES for a while it became clear that we could confidently enable others to successfully provide conveyancing quotes within our business. There was no point in myself and my partners giving out quotes so we appointed a dedicated quotations administrator who was already working in sales and trained her in house as it was vital that she should live and breathe the Thomas Legal Group ethos of customer service excellence. MYFEES enabled us to tailor our quotes to portray our firm’s progressive and service focussed image”.

PIE have brought quite a number of other benefits to Thomas Legal Group. “Before MYFEES it was very difficult to determine what changes to our pricing would do to our conversion rates or whether selling points such as ‘no completion, no fee’ were effective or not. Also although we had invested in our website, making it smart phone and tablet friendly, we couldn’t track leads generated from our website, so we didn’t know whether the site was generating business or not, with MYFEES all of that changed”.

By the time this item goes to press it’s anyone’s guess what the weather will be doing. Thankfully for now, the property market is a bit more predictable and clearly some firms are taking a look at what they’re doing, how and why and recognising that there are painless cost effective measures that deliver fundamental business improvements without compromising quality and professionalism. Simon Thomas is a founding Partner in Thomas Legal Group and heads up their London Office. David Burrell is Legal Services Manager at PIE and Brighter Law Group. Contact: david.burrell@poweredbypie.co.uk 07977 348 348 Andy Watson is Channel Development Director at Property Information Exchange and Brighter Law Group.Contact: andy.watson@poweredbypie.co.uk 01189 769 479

Working with PIE isn’t just about technology and business development input; PIE share a passion for service excellence and customer care. “PIE’s support service is absolute marvellous, we make it difficult for PIE as we are always looking to do things differently but you always manage to deliver”.

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Conveyancing Focus

The Planning Accelerator 2015 has seen the government introduce a range of measures and initiatives to aid the Planning process and in turn help developers in a bid to increase development across the country. This article looks at some of the key changes and issues with a focus on Permitted Development Rights. Permitted Development Rights The UK government introduced a temporary Permitted Development Rights (“PD Rights”) in 2013 allowing PD Rights to be used for changes of uses to residential without the need to apply for full planning permission. In April the Town and Country Planning (General Permitted Development) (England) Order 2015 (“GDPO”) consolidated the previous legislation, further extended certain PD Rights and introduced a range of new initiatives. Householders and developers can benefit from the following: 1. Storage and distribution buildings can change to dwellinghouses; 2. Casinos or amusement arcades can change to dwellinghouses; 3. Up until 30 May 2019, householders have the opportunity to build larger single storey rear extensions under PD Rights. The permitted depth for single storey rear extensions was doubled from 4m to 8m for detached houses, and from 3m to 6m for all other houses. Although prior approval is required for larger extensions Local Authorities must make a decision within 6 weeks (rather than the standard 8 weeks for a planning application) and if not, then they are deemed to approved; 4. PD Rights can be relied on upon for basements conversions, however, they cannot be used if the create a separate unit of accommodation and/or alter the external appearance of the property. Planning permission will still be required if any light well was required; 5. Class O can be relied upon for office to residential conversions. However there are a number of restrictions. a. they are currently only in operation until May 2016, and an update is awaited as to whether they will be extended b. the property must have been in use as B1(a) offices at May 2013

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c. the entire unit must be B1(a) use class d. prior approval is required for office to residential conversions, this requires submitting information in relation to highways, flooding and contamination to the Council. However this is of benefit to developers as it does mean that PD Rights can only be rejected on these grounds. Although the PD Rights provide a range of changes and initiatives, it is important to note the following restrictions: 1. They do not apply to; flats, maisonettes or listed buildings or buildings within the curtilage of a listed building and therefore planning permission would still be required for these properties. 2. In some 'designated areas', PD Rights are more restricted. These include; Conservation Areas; where there are Article 4 Directions (preventing PD Rights being used) or Sites of Specific Scientific Interest and therefore planning permission would still be required. 3. Historic permissions for certain properties may be restricted by a condition that prohibits a use other than B1(a). A S73 application may need to made to have it varied (and therefore appropriate planning justification for that removal needs providing). 4. Some properties are subject to a restrictive condition attached to the grant of planning permission that removes PD Rights. Planning permission would therefore be required. 5. Developers still need to abide by Building Regulations approval and any s.106 Agreements which are required by the Council.

Productivity Plan The Treasury’s Productivity Plan aims to reduce cost and uncertainty for developers and aid efficiency. Some of the individual key announcements are considered in turn:

Enforcing the completion of local plans the government will be able to intervene and draft local plans to aid faster adoption and promote sustainable development where local authorities fail to deliver a local plan. Residential developers may therefore find opportunities where Local Plans are not in place as the LPA will need to identity the necessary 5 yr supply in its draft plan. Changes to Permitted Development Rights in London - currently there are limited rights to build an extra storey at the back of buildings, however new changes will mean upwards extensions will no longer require planning permission to increase the number of storeys to match the neighbouring property. Zonal system - this seeks to provide automatic planning permission on all suitable brownfield sites which have either been previously developed or stand vacant/derelict at present. Registers will be complied and landowners will need to actively engage to try and ensure any appropriate landholdings are included. Planning Decisions - local authorities will be penalised for making 50% or fewer planning decisions on time within the current 8 week planning decision target. This in theory will speed up the planning process but resources will be required internally to ensure this happens in reality. Developers should take comfort in ensuring greater numbers of applications will be dealt with within the statutory time limits.

Conclusion Developers, in particular house builders should be encouraged by these news measures which aim to improve property led growth and provide means for effective development. Resourcing the measures could be a potential hindrance to success however recognition from the government on all of the above shows change is needed and a step in the right direction.

Professional Practice

PRICING AND BILLING ARE TWO SIDES OF THE SAME COIN By Stu Gooderham, Head of Client Relations at LexisNexis Enterprise Solutions

The difference between pricing and billing is hotly debated in the legal industry, but they are similar concepts and so must mirror each other. By aligning pricing with billing, firms ensure that the bill presented to the client actually equals the agreed price. However, logical as it seems, establishing profitable pricing is challenging many law firms, which in turn is impacting presentation of agreed billing to clients. Elementary to pricing anything is an understanding of the cost base of an offering. And herein lies the problem. Many law firms don’t know what their cost of production and delivery of matters is and so struggle with realistically pricing their services.

Pricing requires business insight Costing requires breaking down and clearly scoping matters; and associating costs towards each task across the phases of production - planning, discovery, pre and post-trial, etc. Based on this granular understanding of matter costs, firms can ascertain the price - i.e. the rate that the client will be willing to pay. Nevertheless, to price profitably, firms need insight into what individual types of matter typically cost. This requires access to data (historical and current) to ascertain what level of resources were applied in the past, how best to leverage those resources, whether skills are currently available, how much new skills will cost to acquire, what level of staffing is needed, and at

what stage of the matter lifecycle.

Disjointed business environment Such information isn’t always readily available to firms. They use multiple systems, which despite best efforts to integrate, remain disparate due to the numerous proprietary technologies they’re based on. The various business functions operate in siloes, making it difficult to obtain a single view of the business, projects and matters.

Aligning billing and pricing Then there is the issue of timely, accurate billing for law firms. When is the best time to bill a client, how can debtor days be reduced, and how to increase realisation. Anecdotal evidence suggests that often firms spend days trying to raise invoices - collating time sheets and matching work executed against deliverables - which despite all the scrutiny, still turns out to be inaccurate.

The ability to monitor actuals versus the matter plan (based on which the pricing was determined) is crucial. Then again, firms require legal project management capability, which in turn means that the front and back office of firms must be inextricably and seamlessly connected. Enterprise resource planning technology streamlines pricing and billing related processes. It provides a template upon which to execute matters supported by a connected environment - from pitching a piece of work across delivery through to generating profit encompassing everything from time recording, resource allocation, skills management and communication through to accurate and timely invoicing. Vitally, such an approach helps both curtail scope creep, eliminating revenue leakage. Law firms should consider the discipline of enterprise resource planning. It’s tried and tested in other professional services sectors.

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Professional Practice

A MOVING EXPERIENCE by Stephen Hewitt,

Managing Partner of Fisher Meredith LLP reflects on moving to Chancery Lane. Despite what is quoted regularly as the “death of distance” and the burgeoning growth of online business, the physical location of law firm offices remains an important part of most law firms’ business strategy. Fisher Meredith, specialists in family law, property, litigation and immigration, set up in business in 1975. As we approached our 40th anniversary we knew we were in for a hectic transitional year which involved a major relocation. We had, for some years, reduced the amount of publicly funded litigation work we undertook and this combined with a need to really concentrate on our specialisms, meant the firm needed to reduce in size and move to a more accessible location for our consumer and business clients. Our landlords wanted to redevelop the office block we then occupied in Kennington, South London to build flats and we wanted to move to Central London, so there was a happy congruence of interests and agreement was reached about when we would move out. We set about project planning the move and viewing suitable new offices , assisted by a very knowledgeable chartered surveyor and after the equivalent of “kissing a few frogs“ found lovely, open plan, 7th floor offices with good views close to Chancery Lane for our fifty staff and partners. By the time we were ready to sign the lease, we knew that we only had about five weeks to empty our offices in Kennington and open the new office in High Holborn. Like any business we needed to keep production “down time” to a minimum so a 20

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physical move over the Christmas and New Year vacation made sense as long as contractors, suppliers and some of our staff were prepared to work over this period. We communicated news about the move internally as readily and regularly as we could and staff responded very positively. They shared our view that this was a new and exciting phase in the development of the business. Project planning, which had begun months before and which involved substantial checklists, was undertaken by a small team including our very able Business Operations and IT Managers. Rather ambitiously, we saw the move as an opportunity to rid ourselves of racks of servers and to migrate all our servers and telecoms into the Cloud. Getting the ICT right and planning this well in advance of the move is “mission critical” and despite a few initial hiccups everything went to plan. We also used the move to rid ourselves of monumental amounts of hard copy files into external archiving and to log everything which

was to be retained in the new office. Contractors, suppliers, partners and staff worked round the clock to make sure we opened in early January 2015 as planned. Has the move and restructuring achieved what we wanted? The answer has to be yes despite the challenges. Over the last ten months we have seen a real increase of better value new work across the board and we know clients, staff and partners are well catered for by the location and the new offices and it augurs well for the future.

Professional Practice

InfoTrack announce new integration with LEAP to aid conveyancing efficiencies LEAP and InfoTrack have announced an integration partnership. Solicitors using LEAP’s case management software (CMS) are now able to seamlessly carry out Land Registry Searches, Conveyancing Searches, SDLT Submissions and AP1 Transfers all within the one system via the InfoTrack system. LEAP, lead event sponsor of the recent LawBizTech technology and educational conference, provides their CMS solution to over 11,000 solicitors globally. Positive feedback is already pouring in about the integration between LEAP and InfoTrack and the efficiencies it creates. Maria Parker at Burtons Solicitors who comments “As a firm with 2 offices, we had to ensure we implemented a high end case management solution with a reliable, easy to use search provider to achieve business efficiencies. Previous solutions have always raised issues which is why we are delighted with the solutions provided by LEAP and InfoTrack.

Maria continues “Features such as the ability to drag and drop documents and the pre-population of data from LEAP to InfoTrack is already adding value as with less need to rekey, we can work faster with less errors. The service has been fantastic and I would highly recommend it to other conveyancing professionals.” Scott Bozinis, InfoTrack’s CEO, comments “Our ability to integrate with case management providers like LEAP is another step towards bringing all the timeconsuming conveyancing tasks under one roof. Both LEAP and InfoTrack use sophisticated technology that is smart but simple and is a crucial benefit to

conveyancers who want to increase efficiencies.” Ben Aslet, Head of Marketing at LEAP says “We’re delighted to be partnering with InfoTrack, who provide fantastic technology designed to evolve the conveyancing process. Both businesses share common goals of simplifying the conveyancing process to increase efficiency and improve flexibility.”

Solicitors maintain their share of wills market Research carried out by Will Aid in July 2015 demonstrates that solicitors have little to fear from other providers of will-writing services despite widespread anxiety in law firms since deregulation in October 2011. Although the research year on year reveals slight fluctuations in the percentage of people using a solicitor to write their will, the average of the four years 20112015 is almost 2 percentage points higher than in the four years up to 2011. On the other hand, the percentage of people using a will-writer has declined from a high of 17.90% in 2008 to 10.50% today. Similarly, the percentage using a service from a bank or other organisation has declined markedly from 8.70% in 2009 to 5.9% in 2015. Other research by the professional negligence team at Bolt Burdon Kemp has

highlighted that the public are generally unaware of the rules and regulations governing will-writers and are shocked when they find out that will-writers, although often reputable and reliable, can practise without proper training, regulation or insurance. Bolt Burdon Kemp’s research also shows that 19% of people have prepared their will themselves, without seeking professional advice. Will Aid’s research also points to a shift towards DIY wills with online services doubling from 1.6% in 2009 to 3.4% in 2015, and homemade wills up from a low of 3.6% in 2010 to 7.7% in 2015. Homemade and DIY wills, whether completed online or in kit form or on the back of a cigarette packet, can be a minefield. And the problems are often not revealed until after the testator’s death, leaving bereaved loved ones with uncertainty and expense whilst the whole mess is sorted out. Such wills also tend be more easily contested than those drawn up by a professional solicitor. Will Aid Campaign Director, Peter de Vena Franks commented: “It is evident both from research and from the popularity of Will Aid that the public prefer to use a solicitor to write their will, wherever

possible. They are aware that with a solicitor you can be assured of a valid will and if anything does go wrong there is proper insurance and redress. This may not be the case with an unregulated provider and certainly isn’t the case if you write your own will. The charitable nature of the money raised by Will Aid is a big draw for people and encourages many thousands to enquire every year. Through the work of the charities, our solicitors and their clients have helped improve the lives of thousands of people in the UK and around the world. The wills written during the campaign also help people here to protect their assets and ensure that these pass to their loved ones. We need more solicitors to sign up for the 2015 campaign to meet public demand so please consider registering today.” Solicitors can register for the November 2015 campaign now at: www.willaid.org.uk or call: 0300 0309 558 or email: enquiries@willaid.org.uk

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Agricultural Law

R.A.B.I - the Royal Agricultural Benevolent Institution R.A.B.I - is a welfare charity which helps farming people in financial difficulty. Each year we support around 2,000 farming families and pay out around £2 million in grants. Our farmers produce the food on which we depend and are the guardians of the countryside we enjoy. But the industry operates against a backdrop of constant and increasing pressure. For example, dairy farmers have been losing several pence on each and every litre of milk they produce; due to a substantial drop in the prices they are paid. And that’s since the Commission for Rural Communities found, in 2010, that one in four farming families live on or below the poverty line. It is typically a very proud community, but R.A.B.I’s experience is that a combination of factors and events can eventually take its toll on even the most resilient of farmers and farm workers. This is why we always encourage those with limited savings and low incomes to get in touch rather than suffer in silence. Support is offered in confidence to people of all ages, and includes one-off, emergency or regular payments, as well as the provision of essential household

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items and disability equipment. For working farmers, R.A.B.I can also fund relief staff to help in a crisis, and training through our Gateway scheme. This helps struggling farming people to develop their skills so they can increase their income off-farm and support themselves. For the retired and disabled, we can also pay towards care home and home-help costs - and we run two residential homes of our own, in Suffolk and Somerset. Our vital work is funded by both investment income and voluntary donations. Typically, money is raised at events arranged by county volunteer committees, businesses, community groups and our own fundraising staff; or donations come from charitable trusts and last but not least, gifts in wills. It’s thanks to a major legacy that we have been able to embark on a significant redevelopment of Manson House in Bury St Edmunds, one of our residential homes. But every gift, however small, helps us make a difference to farming people in need. We always say to our supporters: if the time is right and you are thinking of making a will, after taking care of loved ones, please consider helping R.A.B.I too.

Royal Agricultural Benevolent Institution

We help farming families in financial difficulty. Farmers produce the food we depend on and look after the countryside we enjoy. Yet one in four lives on or below the poverty line (Commission for Rural Communities, 2010). Loved ones come first, but if your clients are able to leave our charity a gift in their will, however small, we promise we will value it highly and use it to change lives for the better.

Helpline: Website: General enquiries: Email:

0300 303 7373 www.rabi.org.uk 01865 724931 info@rabi.org.uk Charity Reg. No. 208858

Agricultural Law

In The Spotlight: Proprietary Estoppel There aren't many people who can tell you the price of a pint of milk. The estimated 10,000 dairy farmers in England and Wales can. They can also tell you the farmgate price and the cost of production. As the recent media coverage has highlighted, the dairy industry is in trouble as world markets have depressed the farmgate price to below the cost of production. The price of milk is influenced by such factors as the instigation of sanctions against Russia, the up scaling of milk production in Ireland and dairy units being built in China on an immense scale. The majority of dairy farmers (or their families) own the freehold of the farm. When incomes are falling, it is little comfort to know that their capital assets have increased in value more than three fold over the past 10 years as land prices have spiralled from an average of £2,500 per acre to over £8,000 an acre. Many farming families do not take a proper wage out of the business and are "employed" in the knowledge, or on the promise, that they will benefit from the capital, rather than the income. This is true of many farming families, not just in dairying. It can, of course, be a source of conflict, particularly as the value of farmland now means that it is worth arguing about. In the last year, the High Court has ruled on two cases involving farming families in Wales, coincidentally both called Davies, which have once again thrown the doctrine of proprietary estoppel into the spotlight. In the second Davies v Davies case ([2015] EWHC 1384), James (57) was one of five children. His father died in 1999. By wills made in 1999, the parents made substantially similar provisions in respect of the farm whereby it was left on trust for James until he reaches the age of 60 or dies earlier and subject thereto on trust to sell and divide the proceeds into five shares, one for each of the other four children with the fifth share for the James's children. James's view was that the provision in the wills was contrary to oral promises made by his father and assented to by his mother. He said that verbal assurances had been made that if he worked on the farm it would eventually be left to him. The promises had been made over a period of 40 years, starting when he was 16 years old. In reliance upon those

assurances he decided to work on the farm rather than pursue a career as a police officer, and did so for long hours at low wages. James argued that as a consequence, the beneficial interest in the farm belonged to him as a result of the doctrine of proprietary estoppel. As is commonly the case, there was no documentary evidence in support of the promises and his mother did not recall them. The witness evidence given at trial was the determining factor. In assessing the evidence and the estoppel claimed, the court referred to the comments of Lord Walker in Gillett v Holt [2001] Ch 210 in which he stated that the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all elements of the doctrine of proprietary estoppel and the court is required to look at the matter in the round. The judge in Davies ruled that the balance of probabilities favoured James's making the following findings on the evidence before him: • James's father had been keen to keep the farm in the family and James had been the most likely candidate to achieve this aim; • In later years, relations between James and his parents had deteriorated and the wills were drawn up during this period; • The "promises and conduct amounted to a clear thread which played a significant part to a greater or lesser extent, and reasonably so, in each of the important decisions which [James] made in relation to the farm"; • James had relied upon those promises and that conduct to his detriment; • Although there were countervailing benefits

Tim Price, NFU Mutual Rural Affairs Specialist

enjoyed by James to be taken into account, there was "a substantial balance of detriment" which would make it unconscionable to deny James an equity in the farm or to allow the provisions set out in the wills to take effect. James was awarded a beneficial interest in the farm, with the exception of the bungalow. His siblings did not get anything. Some might say that was a fair outcome after years of working for low wages, giving some security in an uncertain industry. Others might take the view that it was a windfall, against the wishes of parents who had thought they were benefitting their children equally. What it does show is that estoppel cases are unpredictable, particularly when the claim is largely based upon witness testimony rather than documentary evidence. If a case is unpredictable it is less likely to settle. There is a difficult balance faced by land owning families who have competing, often mutually exclusive aims: on the one hand, a real and genuine wish to try and achieve fairness between children and on the other, an understandable desire to see the legacy of a hard earned, lifetime's work continuing within the family for years to come. As is so often the case, family dynamics and relationships shifted over time and the impact of this can be significant. Josie Edwards is a Solicitor at Michelmores LLP. Michelmores has the largest team of agricultural lawyers in the country, offering practical and commercial advice to landowners, farming businesses, landed estates, institutions and others with interests in land and the wider rural economy. www.michelmores.com

"However, in an increasingly competitive global market place it is more important than ever for farmers to be able to plan ahead and invest to keep at the forefront of technological and marketing developments.

Key findings are: 54% of owners have no succession plan 64% of respondents believe that a lack of succession planning is a threat to the future of the farm 46% have not made a plan because of the difficulty of raising the issue of who will take over the farm 33% said they had not planned because the farm could only support one successor In 28% or cases, the farmer had no plans to retire 24% of owners said they could not afford to retire 18% said they had not made plans because of family conflict 36% of farmers plan to pass the farm on to the eldest son 35% of owners planned to share the business amongst more than one child 14% of owners plan to pass on the business to a child who isn’t the eldest

"To research the challenges farmers face we have teamed up with Farmers’ Weekly - and the responses to our online survey of over 700 farmers confirms that this is a worrying problem, with potential to threaten the long-term viability of thousands of farms.

"We hope the survey findings will help farmers see a way ahead - and open up channels to discuss the thorny topic of succession with family members. It’s an issue which is all to easy to put off to another day - but failing to plan ahead could mean the present generation farming your land could be the last."

"At NFU Mutual we know that our members view farming as more than a business. It’s a way of life for families who have often farmed for generations and involves family members of all ages. "And because the running of the farm is so tightly woven into the fabric of the family, it can be very difficult for farmers to make long-term plans for the future of the farm, including who will eventually take over.

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Professional Practice

76% of Lawyers Claim They’re Embracing Change, but the Pace of Change Implementation is Decreasing, Survey Finds by Jon Whittle, Market Development Director, LexisNexis UK

Women, newly qualified, and entrepreneurial lawyers display more favourable attitudes to change; negative attitude towards change impacting firms’ performance. London, U.K. - 22 October 2015 - Research commissioned by LexisNexis-owned legal blog, Business of Law (a resource platform aimed at independent lawyers), reveals insight into lawyers’ attitudes to change. Nine out of ten lawyers believe they are operating in a period of unprecedented change and 76% of lawyers describe their firms as “embracing change”, but the pace and extent of change implemented since last year has decreased. These are the findings of the report, The Art of Keeping Up. These results highlight a sense of complacency setting in among firms as the economy improves. Two-thirds of lawyers anticipate growth over the next five years, displaying confidence about the future. • Of the 15 changes monitored, lawyers implemented an average of just over five in 2014, including things like website development, staff training, actively measuring client satisfaction, outsourcing, changing firm’s status (e.g. ABS, LL) and more. • However, only an average of 1.6 changes are planned for 2015. For example, of the 50% who haven’t increased investment in processes and technology, only 19% have plans to do so this year. Similarly, of the 65% who haven’t increased their investment in marketing yet, only 22% plan to do so in 2015. Women and newly qualified lawyers are more in favour of change. • 55% of women agree strongly with the need to change. Also, 70% of younger lawyers (those who qualified after 1997) have a positive attitude to change. Firms that are resistant to change indicate negative views towards conducting business and demonstrate a lack of attention on their part, which is reflecting in their performance: • Even though they are conscientious about their work, 39% don’t enjoy business management, 36% are not entrepreneurial, 34% are not early adopters of technology, and 15% have no clear strategy for the future direction of their business. Consequently, many of these businesses are less likely to grow or are in decline. • 23% don’t consider investment in systems and process as important, 21% believe it’s not important to be technologically advanced, 13% think having a clear business development strategy is not important and 14% believe being forward looking is not important

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In contrast, those who embrace change are in a growth situation three times out of four, and are also more likely to have confidence in the future. This said, one out of four of those with a more proactive attitude are challenged by bad debts/cash flow problems. “It’s time to innovate or die,” commented William Robins, Operations Director at Keystone Law. “Those who innovate can expect to ride a wave of unprecedented client demand, and those who don’t, can expect ever tougher competition and insolvency within three years.” “Change is a state of mind. Independent law firms must continuously look for new opportunities to improve their operation and develop smarter ways of conducting the business of law,” said Jon Whittle, Market Development Director at LexisNexis UK. “This requires adoption of a positive attitude to change of course, but also a strategy behind the change to ensure tangible benefit to the business. There must be no doubt that with ever increasing client demands and rising cost-consciousness, technology will continue to disrupt and be critical to law firm operation, apathy towards it is akin to shooting oneself in the foot.” This sub report entitled ‘The Art of Keeping Up’ is derived from The Bellwether 2015 Report: The Age of the Client, and looks into how law firms and lawyers are adapting to the Age of the Client. The report is available here: http://businessoflaw.lexisnexis.co.uk/the-art-ofkeeping-up/. The Bellwether 2015 Report: The Age of the Client is the third in the series and reveals how independent lawyers, small to midsize firms and sole practitioners are handling the new demands of the Age of the Client. It looks at the forces that are transforming the traditional client/lawyer relationship, explores how firms can meet new expectations, and asks what the profession’s entrepreneurs can teach us about succeeding in this new environment. The report is based on interviews with 118 independent lawyers and more than 500 private clients across England. LAW Case Law Legislation Legal developments Commentary Magazines & Journals

TOOLS Precedents Practice notes Drafting tools Forms Checklists

The full report is available here: http://businessoflaw.lexisnexis.co.uk/download-thebellwether-report-2015/. About the Bellwether Report The Bellwether Report series is an annual qualitative and quantitative research project, exploring the working lives of independent lawyers, small to midsize firms and sole practitioners. It aims to conduct a ‘temperature check’ into the changing landscape and showcase interesting themes, developments and trends. About Business of Law Set-up in early 2013, Business of Law is a LexisNexis-owned legal blog, created by experts, for experts, with the aim of uniting lawyers and business leaders to share knowledge about how to not just survive these more competitive times, but to thrive. Business of Law’s aim is to build the definitive resource for independent lawyers; an online destination that can help the sector to do business better. To access the blog, visit: www.businessoflaw.lexisnexis.co.uk About LexisNexis Legal & Professional LexisNexis Legal & Professional is a leading global provider of content and technology solutions that enable professionals in legal, corporate, tax, government, academic and non-profit organisations to make informed decisions and achieve better business outcomes. As a digital pioneer, the company was the first to bring legal and business information online with its Lexis® and Nexis® services. Today, LexisNexis Legal & Professional harnesses leadingedge technology and world-class content to help professionals work in faster, easier and more effective ways. Through close collaboration with its customers, the company ensures organisations can leverage its solutions to reduce risk, improve productivity, increase profitability and grow their business. LexisNexis Legal & Professional, which serves customers in more than 175 countries with 10,000 employees worldwide, is part of RELX Group plc, a world-leading provider of information solutions for professional customers across industries. BUSINESS SUPPORT CPD Practice management Practice compliance Market intelligence & trends Legal blogs

Professional Practice

Is she or isnâ&#x20AC;&#x2122;t she entitled? Solicitors had been instructed to carry out the administration of the estate of the deceased who died intestate. Having already carried out some research themselves, the solicitors had established that the deceased woman had died a spinster and without issue. She also had no siblings, so in order to locate potential heirs they had then looked to establish the parents of the deceased. Through doing so, the solicitors believed they had identified beneficiaries. These were, what they believed to be, maternal cousins once removed from the deceased; they also believed that there may be first cousins once removed on the paternal side. At the time of approaching Fraser and Fraser, the solicitor was under the impression that he had completed research into the family and had established the rightful heirs. The work he requested Fraser and Fraser to carry out was to order birth, marriage and death certificates to verify their research, and also to instruct for research to be carried out to locate the heirs they had identified on the paternal side.

Upon ordering the certificates, it became clear to the Legal Case Manager at Fraser and Fraser that this would not be such a straightforward matter.

in the same household but there was no blood relation to the family. This means that she would not be entitled to inherit under this intestacy.

While studying the birth certificate of the mother of the deceased, Fraser and Fraser identified that no father had been listed for her birth and, as the birth took place long before legal adoption came into place in this country in 1927, the man believed to have been her father, cannot legally be viewed as such. This meant that any siblings of the deceasedâ&#x20AC;&#x2122;s mother would, in fact be halfblood maternal family. Bearing in mind that they were believed to be full blood relatives on the paternal side, this would mean that the maternal family identified by the solicitors would not be entitled to inherit.

Due to the nature of the family, Fraser and Fraser took their research back one generation further than they would normally need to. This was in order to demonstrate the second cousins of the deceased.

Fraser and Fraser then began research into the paternal family. The woman on this side of the family identified by the solicitors as being an heir was a first cousin once removed to the deceased. However, research carried out by Fraser and Fraser revealed that this was very unlikely to be the case. Upon checking birth, death and marriage records it became clear that, despite her beliefs and family testimony, her grandfather was in fact not brother to the father of the deceased; he had been raised

This left the solicitors in the position that heirs they believed they had identified on both sides of the family were, in fact, not rightful heirs to the estate at all and would not be able to inherit. Through their research, Fraser and Fraser have identified the rightful heirs to be paternal first cousins that were unknown to the solicitors who referred the case. Research is still on going in this complex case to identify addresses and contact all of the beneficiaries of this estate. However, it is clear that, had the administering solicitors not approached Fraser and Fraser for support on this case, they would have distributed the estate to family members who werenâ&#x20AC;&#x2122;t entitled. In turn, this would have exposed the solicitor to a potential claim under his professional indemnity insurance and exposed the whole firm to a potential risk to their reputation.

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Legacies Legacies

Leaving a legacy to charity Including a gift to charity in a will is a great way to make a difference and there are also tax benefits. Legacies are an important source of income for the charity and voluntary sector. £2.04 billion in legacy income was received in 2012/13. The most recent data from Legacy Foresight (an organisation that compiles data from 76 member charities) suggests that such legacy income is increasing (although year-on-year growth has slowed, in their opinion because of a slowdown in the rate of growth of the UK housing market). However, legacy income is still only 11% of total income from individuals and 5% of overall income to the sector. As solicitors and will writers we can play a role in changing this. A study carried out by the Cabinet Office Behavioural Insights Team, published in 2013, found that when will writers mentioned the possibility of a leaving a legacy to charity, the percentage who did rose from 4.9% to 10.8%. This increased to 15.4% when people were asked if there are any causes they are passionate about. Asking people at the right moment whether they want to leave a legacy is important, as is the way in which the question is asked based on knowledge of the options available.

Types of gift A cash gift, or pecuniary legacy, is a straightforward option. But the effects of inflation could mean the ultimate value becomes less than intended. This problem can be dealt with by updating a will regularly, or linking a cash legacy with inflation. Another possibility is a gift of individual possessions, known as a specific legacy. This might be property, shares, rights or a valuable possession. It is also worth providing for what happens if the possession is sold during the client’s lifetime, otherwise the gift might fail completely. If a client would like a charity to benefit more significantly, an alternative option might be a residuary legacy. This involves giving all or a proportion of an estate to charity after expenses and any legacies have been paid. Finally, for more significant estates, the client may prefer to establish their own charity. This can happen either during lifetime, with the principal gift to that charity happening on death, or otherwise the charity is created in the Will itself. Clients can be concerned about whether existing charities would use the funds they receive in the way they would wish, or clients may have particular causes they wish to provide for. A bespoke charity can address these points.

Drafting the Will It is important that a charity is properly identified in the drafting of the legacy. The full name, address and registration number

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Pictured: Chris Rowse

Pictured: Andrew Godfrey

should be included, and this information is often available from the Charity Commission for charities in England and Wales (or Scottish or Northern Irish regulators as appropriate). Many charities have a helpful section on their website with template wording for legacies.

the EU do now qualify, if the organisation would qualify for charitable status if it was based in the UK. It may also be possible to find a UK charity which will use the legacy to carry out activities aboard in the way the testator wishes (UK charities can of course provide benefit overseas, including to foreign charities). Gifts of foreign property to a UK charity will need careful consideration which is beyond the scope of this article.

• The UK Civil Society Almanac 2015, NCVO

• Legacy Foresight Bulletin (issue 2) 2015 • The UK Civil Society Almanac 2015, NCVO ‘Applying behavioural insights to charitable giving’ (28 May 2013), Cabinet Office A legacy can be given for specific activities of the charity, subject to an expression of wishes or binding obligations. The risk of including a binding obligation is that the legacy could fail if the charity isn’t able to use the legacy for the purpose. A letter setting out the client’s wishes provides more flexibility and is often a better option. The trustees of the recipient charity should take the wishes into account, but are not bound legally to follow them. You should also consider what happens if the charity beneficiary ceases to exist. If this is the result of a ‘relevant charity merger’ under the Charities Act 2011, and the merger is entered in the Charity Commission’s register of charity mergers, the legacy will usually take effect as a gift to the successor charity. However, a legacy may fail if the wording provides that the charity must be in existence at the date of the testator’s death. If a legacy intended for a charity fails, the property will become part of the deceased’s residuary estate. To avoid this it is advisable to discuss with clients whether they want to include power for executors to choose a suitable alternative charity if the intended charity no longer exists.

Tax benefits There is no Inheritance Tax (IHT) on gifts under a will to charities or community amateur sports clubs (CASCs). Legacies to overseas charities are mostly not exempt from IHT. But gifts to an organisation within

The value of a gift to a charity or CASC will be deducted from the estate before IHT is calculated. In some cases this may bring the total estate value below the taxable threshold, which is £325,000 for 2015/16. This may also be used in conjunction with the increased nil rate band as proposed in the recent Summer Budget. Where an individual leaves more than 10% of his or her net taxable estate to charity, the estate will benefit from a 36% rate of IHT, which is a 10% reduction from the usual rate of 40%. Charities are not liable to capital gains tax (CGT). If the executors sell assets a CGT liability may arise against the executors. This can be avoided by appropriating the assets to a beneficiary charity, and the executors will then sell as bare trustees on behalf of the charity. If the asset is land it will be necessary to comply with provisions in the Charities Act 2011 concerning the disposal of charity land. Care will be needed regarding a potential SDLT charge arising when the estate still has liabilities at the time of appropriating land.

Final tip It’s a good idea to encourage clients to let a charity know that they should benefit from a legacy under a will, as this helps charities to plan ahead. Andrew Godfrey and Chris Rowse are both at Russell-Cooke LLP. Andrew is a Partner in the Private Client Team and Chris is a Senior Associate in the Charity and Social Business Team.

Legacies

The future of cancer research starts with you It’s hard to know what the future might bring but we do know that cancer is something that touches us all. Sadly many of us will experience, or indeed will already have experienced the impact that a cancer diagnosis can have - it can be devastating, everything changes. Thankfully advances in our understanding of the biology and genetics of cancers mean we now have more targeted treatments and are able to diagnose cancers earlier, so survival rates have improved significantly in recent years. In fact between 2006 and 2011 survival from diagnosis doubled from an average of five years to 10 years. But we have a long way to go. Survival rates vary greatly between different cancer types and we currently only have drugs that target 5% of the 500 cancer genes we know of. At the ICR we want to continue developing more effective treatments for patients, no matter what type of cancer they have and our track record in this area is unrivalled. It was our scientists who developed the drug abiraterone which recently became available

on the NHS for men with advanced prostate cancer - men who previously had no further treatment options. There is no one-size-fits-all way of treating cancer and it can take many years of research to produce a discovery that leads to a new treatment; for example, it took 20 years before abiraterone could be used widely in the clinic. At the ICR we are working to increase the speed in which new treatments get to the patients who need them, but we can’t do it alone. That’s why legacies are so important to us. Knowing that we can rely on future funds allows the ICR to embark on major research initiatives and invest long-term in finding solutions to defeat cancer. To find out more about the difference legacies could make to the future of cancer research,

please visit our website icr.ac.uk/legacy or call Marcia on 020 7153 5387 or email legacy@icr.ac.uk “Having been a researcher at the ICR for almost 20 years, I have seen it go from strength to strength. I am proud of the impact its research has had, and will continue to have in the future. I decided to leave a legacy to the ICR in my Will because I want their vital work to continue” Professor Robin Weiss FRS, former Director of Research at the ICR

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Legacies Legacies

SBA - a good friend in times of need SBA The Solicitors’ Charity has been working at the heart of the profession for over 150 years to ensure that no solicitor is unsupported in times of need or crisis. Many London lawyers have known about the charity since the day they were admitted but for others, news that the profession has its own benevolent fund, run by and for solicitors and their families, is a complete surprise. £150,000 to London lawyers and their families SBA’s core purpose is to relieve the financial hardship of solicitors, former solicitors and their dependants. In the last three years, SBA has distributed over £150,000 in outright grants and interest-free loans (usually secured) to London lawyers and their families.

e-learning, portal-based service, backed up with one-to-one skype and telephone coaching. Where appropriate, SBA can also provide financial support during the programme, so that participants can really focus on their job search, rather than worry about day-to-day household finances.

Visit www.sba.org.uk for more information, telephone us in confidence on 020 8675 6440 or email sec@sba.org.uk

Help spread the word

Awards cover a wide range of essential everyday needs, including help with the basics, such as food, clothing and heating. SBA can also help with one-off items, when boilers break down or roofs need repairing. On occasion, we can take care of priority debts, if clearing them will bring household finances back on to a permanently even keel.

Despite being one of the best known of the legal charities, general awareness of what SBA can do to help - especially amongst younger solicitors and HR professionals - is still too low and we need our colleagues in the City of Westminster and Holborn to help spread the word. If you know someone who is finding it hard to cope, please mention SBA. If we can help, we will.

Help with career transition

A legacy to the profession

SBA now offers help with career transition as well as financial support. Solicitors who qualify under the financial criteria can join a three-month programme which offers holistic career, job search and wellbeing support via a professional consultancy. This is an

A gift in your Will can help SBA transform the future for many solicitors and their families. Loved ones come first but a gift in your Will means you can leave a lasting legacy of support for those whose lives in the law have been spent helping other people.

Funding › Research › Cure

Give life through a legacy WE WILL USE YOUR LEGACY TO: › Improve the quality of life of those suffering with kidney disease › Finance equipment and research projects › Support research into the improved diagnosis and › › › ›

cure of end stage renal failure Improve the understanding of renal pathology Improve the care of renal patients Improve the treatment of renal disease Train and stimulate scientific, nursing and medical staff

Tel: 0208

296 3698

email: legacy@kidneyfund.org.uk website: www.kidneyfund.org.uk

South West Thames Kidney Fund, Renal Unit, St Helier Hospital, Carshalton, Surrey SM5 1AA

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Charity Reg. No. 800952

Legacies

Canine Care Card Some dog owners worry about what might happen to their dog if they were to pass away first, leaving their beloved four-legged friend without an owner. Thankfully, Dogs Trust, the UK’s largest dog welfare charity, offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, it also helps to ease the minds of friends and family during what is already a distressing time. Over the past 12 months, Dogs Trust has taken in a whole host of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes. Two such dogs are Poppy and Petal, a devoted duo who arrived at Dogs Trust Bridgend after their owner passed away unexpectedly. Whilst the loveable pair were unable to be cared for by family members, Dogs Trust Bridgend was able provide them with a home away from home while they awaited their furrytale ending. Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving owner. Currently being cared for by the staff at Dogs Trust Bridgend, Petal and Poppy are awaiting a loving new family to give them a second chance at happiness.

Adrian Burder, Dogs Trust CEO says, “Thanks to Dogs Trust’s Canine Card Card scheme, dogs in need of a new home are given a lifeline meaning that Poppy, Petal and many dogs like them are able to get a second chance at happiness and bring joy to a new family. If you decide to become a Canine Care Card holder, we will issue you with a wallet-sized card. It acts in a similar way to an organ donor card and notifies people of your wishes for your dogs, should anything happen to you. Dogs Trust also strongly recommends that you mention the care of your dog in your Will. That way, there can be no confusion about your wishes”

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Interview

“AFFABLE BUT FIRM ” PURSUING A CONSTRUCTIVE DIALOGUE WITH GOVERNMENT BOB NEILL EXPLAINS HIS PARLIAMENTARY ROLE AS THE NEWLY ELECTED CHAIRMAN OF THE JUSTICE SELECT COMMITTEE.

An interview with Bob Neill MP, Chairman of the Justice Select Committee by Phillip Taylor MBE of Richmond Green Chambers It is probably non-practising barrister Norman St John Stevas MP (Baron St John of Fawsley) who has a lot to answer for the new system of select committees… or does he? Some readers will probably have no idea who I am talking about here but it was the flamboyant Norman who devised and reformed the modern scrutiny structure to safeguard Parliamentary business with the creation of our current select committee system which appears to be particularly popular with the public and the media through its television broadcasts. And this is where Bob Neill comes in as the current elected chairman of the relatively new ‘Justice Select Committee’ or ‘Justice Committee’ as it is known. It covers the work of the Ministry of Justice which was created from its previous incarnation, the Department for Constitutional Affairs. Bob Neill has been a colleague of mine in Tory politics and as a practising barrister at the Bar for over 30 years so I was delighted when he agreed to talk about his current parliamentary work… and on a day when the Justice Secretary announced the termination of the ‘Saudi courts contract’ so the Commons Central lobby was really buzzing as we got down to business. Bob Neill comes to the post as a highly experienced Westminster politician coming with a successful background in local government, holding high office in the voluntary side of the Conservative Party, and as highly experienced junior Counsel who practised for many years at the Criminal Bar. So he knows what we have to put up with in court when the politicians keep telling us what to do! 30

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Amiable Personality It is these two facets of expertise plus Bob’s amiable personality which make him such a valuable friend to the public on justice matters, when he variously describes his role and that if the committee as “constructively critical” with the aim of “bringing to account and scrutinizing the Ministry of Justice and the government’s law officers”.

So what does the JC do? The Justice Committee is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and associated public bodies, including the work of staff provided for the administrative work of courts and tribunals. The JC has a website which Bob recognizes does need a bit of an update but it gives us a useful insight into the work of the committee for those (make that most of us) who have very little idea of what the JC does. At this point it is fair to say that I began to get more excited because it became quite apparent that Bob and his experienced fellow scrutineers are the possible forerunners of what is to be a crucial committee to preserve sustainable access to justice for the future with the many recent onslaughts on public legal funding. So where do you start if you want to know more about the JC? Members of the current committee have been elected until 2020, in other words the full Parliament. They come from a variety of backgrounds both legal and non-legal to give the JC a bit of balance. And, importantly, they have security of tenure being elected by the whole house by secret ballot.

The way JC business is arranged for the Parliament starts with their Forward Programme which looks at the sort of issue they wish to pursue. Do have a look at the website and read the “Formal Minutes” of previous JC meetings listing the agenda items. Just a quick inspection will be most illuminating for practitioners as there is an important public area for the electorate called ‘consideration of public petitions’ where there is direct link to the voter on non-personal issue matters including the usual suspects, nearly always involving money. Having said that, browsing the last set of minutes shows the inclusion of petitions on inquests, human rights and burial and cremation services… so the areas are wide and varied! However, it is what the committee excludes which will be of interest: the consideration of individual cases and appointments; the work of the Scotland and Wales Offices and of the Advocate General for Scotland. The JC does examine, under the item “main estimates memoranda” the administration and expenditure of the Attorney General’s Office, the Treasury Solicitor’s Department, the Crown Prosecution Service and the Serious Fraud Office although again it excludes individual cases and appointments and advice given within government by Law Officers.

Interview The Justice Committee is one of the nineteen Select Committees related to Government Departments, established by the House of Commons under Standing Order No.152. In essence it is not party political and works to scrutinize justice matters on behalf of the public. The finality of their work contains the reports presented to the House of Commons for debate which is where there is much bigger publicity of what the JC actually does.

The JC’s Inquiry Work Probably the most fascinating and constructive area is where the JC chooses its own subjects of inquiry which they can initiate. It allows for some investigatory freedom as a committee which exercises cross-party scrutiny. Depending on the subject, external deadlines, and the amount of oral evidence the JC decides to take, an inquiry can take several months and lead to reports to the House of Commons. In other cases, inquiries may consist merely of a single day’s oral evidence which the JC may publish without making a report. When the JC has chosen an inquiry it normally issues a press notice outlining the main themes of inquiry and inviting interested parties to submit written evidence. It may also identify possible witnesses and issue specific invitations to them to submit written evidence. Bob did indicate that the website will be possibly reviewed to include all relevant press notices and of course documentation which is available to the public.

Legal Aid in Austerity Britain Following our interview which did feature hot topics like legal aid and criminal costs, Bob has raised concerns over the “unintended” consequences of LASPO during a Westminster Hall debate held two days later on 15 October 2015. His view was that legislation which “impacts access to justice should have an evidential basis”. He continued saying that “access to justice is fundamental to a system based on the rule of law, and it is therefore important that any changes we make to the ability of the citizen to access proper legal advice are based upon objective evidence.” Perhaps it is some comfort for advocates to know of this approach although the main decisionmaking always lies with the Treasury. Alex Chalk MP, who is another JC member and a barrister, has reinforced Neill’s point that a review of the impact of LASPO should be carried out sooner, rather than later. A point echoed earlier at the Conservative Party Conference in Manchester when ministerial assurances

of a LASPO review were given by Lord Faulkes. To complete the confirmation, Justice Minister Dominic Raab has replied saying that the timing of a LASPO review will take place at some point between 2016-2018 when reforms have bedded in and a “steady state” is achieved. Raab continued saying that “the precise timing and the form of the review will be guided by our assessment of the extent to which the reforms have reached a steady state, as I have already indicated, and by Government and wider stakeholder research and evidence on the impact of the reform.” We can take it, then, that there will be no early change in legal aid cuts for austerity Britain… but don’t forget about using ‘public petitions’, or should I remind you of this.

Criminal Court Fees One emerging area which I raised with Bob was the continuing and highly controversial vexed issue of criminal court fees. Pressure has been mounted for reform of criminal courts charges. The JG has heard evidence from the Centre for Justice Innovation and the Howard League, both arguing that the Government’s review be brought forward to the earliest opportunity. Whilst it would not be appropriate for me to seek the JC chairman’s personal views because this is still a current issue, I will leave it this way… that all members of the JC are well aware of the indignation and plain anger in some quarters over the introduction of these fees by Michael Gove’s predecessor Chris Grayling and the matter is still being discussed. The oral and written evidence so far submitted to the JC has argued that the charge is: • Influencing Defendants’ choice of plea • Ineffective in recouping costs related to running courts, and • Encouraging reductions in compensation orders to offset the burden imposed by the charge. We have not heard the last of what is seen as a MoJ policy folly but a word of warningthe JC takes time to deliberate (quite normal for us lawyers) but readers can be reassured that the JC is on the case.

Sentencing Policy Perhaps an area of long term interest to the Criminal Bar, applied criminologists, readers of “The Daily Mail” and those who regularly criticise jail terms without attending the hearing of the case in court would be interested to follow the JC’s remit on “Sentencing Council Guidelines”. An emotive area at the best of times, I was curious to know who was on the council and how they were elected or appointed. I would hope that in one of the future JC direction setting meetings that this subject might be raised as sentencing appears a main agenda item for successive meeting. The same can probably be said for the JC’s role of ‘preappointment scrutiny’ depending upon whom the committee can scrutinise. Members of the JC will clearly have a lot of work to do during this Parliament.

The Future So it is really a ‘thank you’ so far for the work that the committee members are undertaking. We agreed at the interview that “a constructive dialogue with government” is the approach being adopted and, to coin a phrase from the past, it does appear to be the Right Approach (I hope some members of the committee will not be unhappy with that phrase). The application of scrutiny, checks and balances are what this committee is all about and I came away feeling that the members and their chairman would not shy away from dealing with the ‘hard cases’ concerning the Executive. Whether at national or local government level scrutiny is, rightly, the function of the moment and Bob Neill’s affable but firm manner is something we as practitioners… and voters… appreciate when keeping the government in check. Thank you.

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Professional Practice

Getting Engaged The good, the bad and the future of digital interaction with government. Five years ago, the government responded to a report by the then UK digital champion Martha Lane Fox by declaring that public services should be provided digitally by default. The Government Digital Service (GDS) leads the digital transformation of UK government, with a digital by default remit. Increasingly we expect everything to be available online. Already much of how we interact with the taxman either is or can be online. Other Government departments and agencies are catching up, with varying levels of success.

The good GDS has recently come to the end of its initial period during which a number of exemplars were tasked with introducing a digital service, the GDS reported that Register to Vote saw 4.3 million registrations. Your tax account has 1.5 million users. More than 70,000 drivers view their licence information online each month and Renew a patent online has seen a digital take-up of 94%. In fact, a record-breaking 469,000 people registered to vote online in one day for the 2015 general election - as the deadline closed on 20 April. The online Lasting Power of Attorney service went from no online presence to 15% of LPAs created using the online service and a 90% satisfaction rating for this brand new service in 18 months. A fantastic result considering the average age of a person making an LPA is 80 years old.

The bad Contrast that good news with the experience of Legal Aid lawyers trying to get to grips with CCMS, which becomes mandatory from February next year. The Legal Aid agency say “CCMS is an online system for civil and family legal aid providers and others assigned to work on their cases”. The Legal Action Group say

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by Sally Danby, Product Manager, Advanced Legal

“although some £31m of public money has been spent on CCMS over the past three years, it is not a bespoke product, designed to meet the needs of providers or clients”. Some reports put a much higher figure on the cost. At its recent conference Jo Edwards, chair of the family group Resolution said “the system continues to be unstable… users can’t keep a record of what they’ve actually submitted… it is so slow, it can take 3 times as long as the paper process.” The similarly beleaguered Rural Payments Agency (RPA), an executive agency of DEFRA, spent £154 million on a mandatory digital basic payments scheme, but due to significant ‘performance problems’ reverted to paper forms. A select committee criticized the agency for not paying enough attention to the needs of the users. The system features a painfully slow digital mapping tool, with a high proportion of users based in areas with no broadband access. There are other examples, the public Accounts Committee chair investigating the project for a new GP data system said “Failed government IT projects have long been an expensive cliché and, sadly for the taxpayer and service user, this is no exception”.

The future It is telling that the projects showing broad success have been built in an agile way. Small teams supported by GDS releasing iterations of their solutions, with real users trying it out along the way. Compare this to the big spend, big bang projects like CCMS and RPA basic payment scheme where little to nothing is seen until significant cash has been spent. Returning to the speech made by Jo Edwards, she said “My message to the Legal Aid Agency today is simple - just because something works for you, doesn’t mean that it works.”

GDS recently looked back over the last two years’ transformation. They emphasised User needs, not government needs. “We’ve done it by putting the user needs first.” The difference might be something already well understood by those who sell digital services to customers - rather than mandating its use, the key is user engagement. It isn’t possible to build the right digital service without working closely with those who will use the service. And that doesn’t mean providing updates and presentations about what you are building, it means working with users on every step of the journey. It also means embracing the fact that customers come in all forms. A good system will take all stakeholders into account. For this to work it needs users to get involved. We are all busy, but think of the often used argument for voting: if you don’t take part, can you really complain that you don’t like the outcome? Remember that new recruits coming into your business may well be the most experienced tech users you have and will be well placed to embrace these changes. Smart businesses harness that baked-in enthusiasm for the digital world, in preference to introducing them to the older kit that is still a familiar sight in some offices (try showing anyone under 25 a fax machine!). Whilst the digital strategy is sold as bringing lots of benefits in our interaction with government, the cost savings that can be delivered are huge. The original strategy predicted over £1.7billion savings each year. It is clear this drive will only increase pace, and businesses need to be ready to make their own processes fit efficiently with the increasingly digital world. Don’t only react when this strategy affects your business, get involved early and benefit from the move to digital.

Professional Practice

The legal aid cuts: why I turned my back on the law Today I’m a freelance writer. Three short years ago, I was an enthusiastic criminal defence solicitor. I represented people at the police station. I did trials at the magistrates’ courts and a handful of hearings at the crown courts, too. I even won my first trial. I had no idea that redundancy was looming, that I was about to have a head-on collision with the Conservative government’s unrelenting public sector cuts.

“Half of those doing criminal work earned less than £50,000 in 2012-13 before overheads - a net income of £27,000 a year.”

There was less work. Fewer cases going through the police stations and the courts. The cuts to the criminal justice system were filtering through and hitting defence firms like ours. It’s not because fewer crimes were being committed. It’s because the police and the courts were too squeezed to handle them properly. We had a case where a defendant stabbed someone. Instead of being hauled through the courts on a grievous bodily harm charge, he got a police caution, a telling-off: “Please don’t stab anyone again.”

Lorry drivers are paid more than this. Over the last couple of years, the legal aid cuts have brought about the first strikes in the history of the British legal profession. This isn’t because criminal lawyers are desperately trying to make sure they have enough cash for a new Mercedes every year - as many misinformed and uneducated people still accuse. That’s never been the case. As the figures show, compared to a lot of professions - and all non-legal aid lawyers - criminal lawyers are poor. The strikes are because they’re worried about two things: the degradation of the justice system and being able to feed themselves.

As a result, my firm found itself chin-deep in a financial quandary. There was less work to be done, and the tightly budgeted Legal Aid Agency was failing to make prompt payments for the work we were doing. The only solution was redundancies. I still remember the phone call I got from my boss: “sorry - you made the cut.” The public has no idea what’s going on. The cuts are having a detrimental impact on justice, but the general populous doesn’t care. To them, anyone who gets arrested is guilty of something. Not until they get arrested for something they didn’t do and have to experience our deteriorating system for themselves will they realise. The general public doesn’t care about the lawyers either. They bundle all of them into the same box. A box labelled ‘fat cats’. People still aren’t alive to the gargantuan gap between corporate lawyers and criminal lawyers. Corporate lawyers earn hundreds of thousands of pounds a year, millions in some cases. But thousands of legal aid lawyers are earning less than £30,000. Some even earn less than the minimum wage. Chairman of the Bar Alistair MacDonald QC said:

What’s worse is that the figures above are from before the latest round of cuts. A further 17.5% has been sliced off the fees for legal aid cases - which were already too low. Now, if someone gets arrested in Gloucester for example, the firm dealing will get paid a paltry £140.25 for the police station case. If the client is difficult, has mental health problems, needs an interpreter or raises some kind of complex legal issue for the lawyer to deal with, it’s still £140.25. In fact, the firm has to spend more than ten hours working on the case to get paid any more than the fixed fee. So if the firm’s just under the ten hour threshold, that’s a frankly laughable £14 an hour for the solicitor’s work. I haven’t even mentioned the most controversial part of the legal aid changes: the new contract system. The number of criminal legal aid contracts awarded to firms has been slashed from 1,600 to 527, a move that is going to cause hundreds of criminal firms to go bust. Basically the government wants fewer solicitors handling more cases. It’s the same demand they’ve

been making of the whole public sector: work harder for less pay. Yet all barristers and solicitors - regardless of what area of law they go into - have to go through six to seven years of very expensive studying and rigorous training before they qualify. They have to be intelligent, academic, work hard and be indomitable. They deserve to be well paid. The reality is, criminal lawyers are only going to become poorer and more overworked as the Conservative government continues its illthought-out crusade. This is why I’ve left law behind. All criminal lawyers are at huge risk of redundancy and pay cuts. It’s not a viable industry to be a part of, and it’s not about to become one soon. After I lost my job, I practised employment law and civil litigation for a year, but something else was calling to me. Writing. I’d been a writer of fiction since I was young, and it was during my time at my last law firm that copywriting caught my interest. So I trained and qualified with the Blackford Centre for Copywriting, and the rest is history. I only hope that there is a light at the end of the tunnel for my friends and former colleagues still trapped in this eternally squeezed profession. At the moment I feel like they’re stuck on a sinking ship – and I made it aboard the life raft. As a professional copywriter and former lawyer, Christopher Berry is uniquely placed to write articles, websites, brochures and blogs for law firms. If you’d like him to write for you, please contact him on 07857 968707 or cr_berry@outlook.com. You can visit his website at christopherwritescopy.com.

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Book Reviews

THE COMPANY DIRECTORS Powers, Duties and Liabilities - 12th edition by Peter Loose, Michael Griffiths and

David Impey JORDANS PUBLISHING LIMITED ISBN: 978 1 84661 971 7 Available as an ebook www.jordanpublishing.co.uk

AN ESSENTIAL REFERENCE ON THE ROLE AND RESPONSIBILITIES OF THE MODERN COMPANY DIRECTOR An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers If you are a company director or a practitioner in company law, here’s a book you should make a point of purchasing. Recently launched in a new twelfth edition from Jordan Publishing, ‘The Company Director’ is a long established, classic work, which at the same time, is bang up to date. It is only a little over three years since the last edition appeared and significant changes from the Companies Act 2006 have taken place, as the three authors, Peter Loose, Michael Griffiths and David Impey remind us. Also, Parliament has just passed the Small Business, Enterprise and Employment Act 2015 which adds a new dimension to corporate governance. Now established as a definitive work in this field, “The Company Director” presents in one convenient volume a detailed explanation and clarification of the powers, legal responsibilities and, yes, the liabilities of executive and non-executive

company directors within a continually changing legal landscape, where, as the authors also point out, some uncertainties remain as to what the law really means! The book covers a number of other significant changes. The provisions of the Small Business Enterprise and Employment Act are thoughtfully discussed, together with the recently revised rules on corporate security… the new mechanisms for making complaints to the Company Names Adjudicator… and the most recent changes to the company buy-back regime. The most recent case law is also examined in detail. Indeed, the book excels as a work of reference to virtually everything a company director needs to know. The first two chapters outline the history and nature of companies past and present, including commentary on ‘the corporate veil.’ Subsequent chapters deal in detail with such matters as the appointment, powers, duties and liabilities of directors, plus shareholder relations, terms of service and meetings. Also presented is a clear and detailed discussion of the Bribery Act 2010 and the Corporate Manslaughter and Homicide Act 2007 (very topical in view of the recent Volkswagen debacle). And then there’s the final chapter which contains as succinct a summary as you’ll find anywhere on the oft referred to issue of corporate governance. This contains the UK Corporate Governance Code, a very useful checklist for board effectiveness, and more besides, including a comment on corporate social responsibility (CSR).

CSR is described as ‘an up and coming buzz phrase’ in the opinion of many, except possibly avid readers of the Harvard Business Review, for example, who may remember the concept discussed as far back as the 70s and probably before; so, as some might say, less up and coming than old hat. Be all this as it may, this book is described quite rightly as ‘a highly respected tome… heavy on the practical side of the law’ and therefore an essential research tool for a range of professionals, from barristers and solicitors to company secretaries and accountants, as well as, of course, company directors and corporate law students aiming for a first. The law is stated as of July 2015.

THE JURISPRUDENCE OF LORD HOFFMANN A Festschrift in Honour of Lord Hoffmann Edited by Paul S Davies and Justine Pila HART PUBLISHING An imprint of Bloomsbury Publishing ISBN: 978 1 84946 591 5 www.hartpub.co.uk

ENHANCING UNDERSTANDING OF JURISPRUDENCE: A SCHOLARLY AND CELEBRATORY TRIBUTE TO LORD HOFFMANN An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Knowing only about ten words in German, we learned a new word today gleaned from the subtitle of this book: ‘festschrift’. Us neither! But surmising that it refers to a ‘celebration’ of sorts, one cannot help but envisage here, the spectacle of foaming steins of beer borne aloft by rosy - cheeked waiting staff in lederhosen or dirndls, as appropriate. But no - we mean yes - the book does commemorate a celebration, namely a conference held in honour of Lord Hoffmann on the occasion of this eightieth birthday at St. Catherine’s College, Oxford in April 2015. Recently published by the Hart imprint of Bloomsbury, it contains nineteen essays from twenty contributors, all academics in law at Oxford University.

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For jurisprudents the book is a gem. Indeed anyone interested in the law and its continuing evolution, will find this book rather a treat. As well as offering studied opinion and penetrating insight, the contributors reveal personal reminiscences and accounts of their friendships and professional acquaintanceship with Lord Hoffmann whose towering reputation places him as one of the most important and influential of English jurists. In his opening remarks, Professor Colin Tapper, who studied law at Oxford at the same time as Lord Hoffmann (known at the time as Lennie), recalls that he was born in the same year as Hoffman, a time when apparently, legal education at Oxford was’ at a low ebb.’ Many colleges had no law fellow and indeed many fellows were ‘either unqualified or incompetent’. Now that’s quite a revelation, that is. Tapper adds that ‘many of the qualified were incompetent and a very few of the unqualified were competent.’ This was the state of affairs before things began to change. ‘In my opinion,’ says Tapper, ‘Lennie’s year marked the final advent of complete academic respectability of law as a subject in this University.’ Thus was the beginning of an illustrious career which spanned both the practice of law and academia, the details of which are amply illuminated in this book. ‘The chapters in this volume,’ says Lord Sumption in the foreword, ‘are a tribute to a remarkable legal mind and to the respect in

which Lord Hoffmann is held even by those who profoundly disagree with him.’ The diverse range of commentary in this book covers what one assumes is the full spectrum of Hoffmann’s jurisprudence in, for example, tort law, human rights law, administrative, media, intellectual property and employment law - and much more, including tax, property and corporate law. One of Hoffmann’s most notable qualities as a teacher as well as a judge is, in the words Lord Walker quoted by the editors, the ability to ‘suffuse even the most technical subject with intellectual excitement’, which most law students will admit, is a quite rare and valuable talent. For lawyers in any area of law, this book is an important read - and handy for researchers. It is extensively footnoted and comes complete with a lengthy table of cases and an index at the back. For any interested reader, this distinguished volume gives the rigorous discipline of jurisprudence an almost unique accessibility. The publication date is cited as at 2015.