Biblio issue 2 by EPC Studio

Issue 2 - Summer 2017

Biblio Berkshire • Buckinghamshire • Oxfordshire Incorporated Law Society

BBO Legal Awards 2017 FULL REPORT ON pp. 14-17

Also in this issue: Dealing with 'Parking Cowboys' • Is Professionalism Dead?

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Issue 2 - Summer 2017

From the President...

Berkshire Buckinghamshire Oxfordshire Incorporated Law Society Magazine

Contents

My fellow members, This is the second of our Society’s magazines and the feedback from the first one was very encouraging. We really do want our magazine to be a platform for all our members to contribute to so if you would like to write an article or opinion piece please do get in touch. Indeed if there are any events coming up that you think would be of interest to our members, do let us know. The last two years have passed quickly and soon I shall step down as President of the Society. I have been honoured to be the President of this Society over that time and I wanted to take this opportunity to thank my very dedicated and hard working committee for all their support. In particular, our Vice President, Simon Stone, and our administrator, Amanda Jopson, deserve special mention for their patience (with me!). Our Annual Dinner was held a few weeks ago at Bisham Abbey and you will see from the pictures (https://goo.gl/bJ5Jgo) that it was a fantastic evening. The sun was out in full force on a glorious evening on the banks of the Thames. The dinner then ended with our first ever BB&O Legal Excellence awards. The 4 categories received numerous applications and the judges, led by HH Judge Harris, had a difficult time choosing the winners. The eagle eyed amongst you may have spotted that I called it an “Annual” dinner whereas the dinner is usually held every 2 years. Given the success of this year’s dinner, we have decided that the President’s Dinner and Awards ought to be an annual affair, so watch this space. I hope you enjoy this issue of the magazine and will join us at one of our events soon. Best wishes, Cyrus Medora President, BB&O Law Society 2015/2017

From the President

Committee Members

A word from the Editor

News: Save The Date - Past President's Lunch

BBO Subscriptions notice

Is Professionalism Dead?

Honorary Legal Advisor to the Citizen's Advice

Dealing with 'Parking Cowboys'

CPD Lecture Programme Booking Form

Legal Apprenticeship

BBO Membership Application Form

BBO Awards 2017

GDPR Compliance

Mapping Environmental and Planning Risks

Biggest change to AML in a decade?

20 Years in Conveyancing

Top Tips on Combatting Fraud

Book Review - Housing Law Casebook

Experts in 20th Century

Paternity Fraud

Cybercrime

Jackson on Mediation

Cyber Security

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Advertising

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membership

Berks, Bucks & Oxfordshire Incorporated Law Society

Committee 2016-17 President Simon Stone Kingsley David DX 45801 Woburn Sands simonstone@kingsleydavid.com

Berkshire Justin Sadler Barrett & Co DX 4033 Reading justin@barrettandco.co.uk

Oxfordshire Tracy Norris-Evans Royds Withy King DX 4314 Oxford 1 tracy.norrisevans@withyking.co.uk

Vice President Jane Whitfield Barrett & Co DX 4033 Reading Email : jane.whitfield @barrettandco.co.uk

Buckinghamshire Richard Sauvain Parrott & Coales DX 4100 Aylesbury richard.sauvain@parrott& coalesllp.co.uk

Edward Pilling Withy King DX 4314 Oxford 1 edward.pilling@withyking.co.uk

Immediate Past President Cyrus Medora Kidd Rapinet DX 42269 Slough West CMedora@kiddrapinet.co.uk

Roderick McCulloch Reynolds Parry Jones DX 4407 High Wycombe roderick.mcculloch@rpj.uk.com Jonathan Warbey Horwood & James DX 4102 Aylesbury jonathan.warbey@ horwoodjames.co.uk

Richard Coleman Withy King DX 4314 Oxford 1 richard.coleman@withyking.co.uk Special Members Council Members Razi Shah Appleby Shaw DX 3830 Windsor rshah@applebyshaw.com

Nawaz Khan Abbott Forbes Council Member DX 45410 Cowley nawazkhan.gb@gmail.com

Local Authority Solicitors Nick Graham Oxfordshire County Council Local Authority DX 4310 Oxford Solicitor Nick.Graham@Oxfordshire.gov.uk Administrator Amanda Jopson BB&O Law Society DX 45803 Woburn Sands admin@bbolawsoc.org.uk

A word from the Editor W elcome to the Summer edition of Biblio.

The BB&O Excellence Awards dinner was held in May at Bisham Abbey and proved a great success. We were blessed with good weather, good speakers and a great venue. We have included a selection of photographs from the event, together with details of the finalists and winners. Many thanks to all who nominated and congratulations again to the finalists and winners. Thanks also to our

sponsors without whom such events would not be possible. We are already planning next yearâ&#x20AC;&#x2122;s event and will confirm more details in the next magazine.

By the time you read this, we will have held our Annual General Meeting and elected a new President. The Committeeâ&#x20AC;&#x2122;s thanks go to Cyrus Medora for his commitment to the BB&O over the last two years. His presidency may be at an end but we shall be encouraging him to continue to contribute to the Society as a Past President.

We recently sent out a survey asking for Members thoughts on venues and subjects. We shall be collating this information over the summer period and hope to put in place a selection of venues and topics for the Autumn programme. Our next lecture is a Commercial Conveyancing Update on 24th July at the Holiday Inn. Please contact me if you wish to attend. Amanda Jopson Administrator Amanda@bbolawsoc.org.uk

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NEWS

NEWS NEWS NEWS NEWS NEWS NEWS SAVE THE DATE

Berks, Bucks & Oxfordshire Inc Law Society Past Presidents Lunch 26th October 2017 Phyllis Court, Henley on Thames Invitations will be sent out in August.

Subscriptions Notice Berks, Bucks & Oxfordshire Incorporated Law Society Shelton House, 4 High Street, Woburn Sands MK17 8SD Tel 01908 325555 email: admin@bbolawsoc.org.uk From the Hon Secretary: Simon Stone

DX45803 Woburn Sands

Dear Member, Membership Subscription 2017/2018 Subscriptions for the year commencing 1st March 2017 were agreed at the Society’s recent AGM and are now payable. I am pleased to be able to tell you that it was decided that there should be no increase in subscription rates. Please return this notice with your cheque, payable to the BB&O Inc. Law Society, ticking the appropriate membership category below. Please note our new contact details. Contact Details To enable us to keep our records up-to-date, would you please check that your postal or DX address shown above is correct and PLEASE write in your current email address below. We need this because most of our contact with members is by email and, unfortunately, we are not always notified of changes to members’ email addresses. Would you also please ensure that any filters on your system are set to allow emails from BB&O Law Society admin@bbolawsoc.org.uk. and Amanda@bbolawsoc.org.uk Yours sincerely, Simon Stone Hon Secretary

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ARTICLES

Is Professionalism Dead?

oes not compliance do-away with professionalism? For if we comply, then the job is done, clients are protected and standards are upheld. Or, is there more to professionalism?

is for so many lawyers I know but surely it is all about the client – and do they care? I suspect not unless perhaps when something goes wrong. But that is no good reason for professionalism to be abandoned. Professionalism is doing it anyway.

My principal, now the Reverend Lindsay Ford, told me in 1983 that I should not worry about money for that will come, instead I should focus my concerns on my clients. I still believe that encompasses the essence of professionalism. But, not its entirety as now we must worry about money. Indeed we are commanded to by our Code of Conduct.

Could our thinking on being professional be an ego trip? An attitude that somehow we walk on higher ground? A decent plumber may find that he too is called-out to a leaking cistern on New Year’s Eve. Or an electrician late on Christmas Eve, to connect the cooker of the couple who completed that day on their new home. Then I would suggest they too are acting professionally (just for more money than us).

In writing this article I was inevitably drawn to the issue of money. Running a practice is expensive as we know and that expense grows yearly and within an ever-increasingly competitive market place. It would appear that the situation will get a lot worse when unregulated firms enter the legal services market. At that point, all the years of rules, standards and accounting demands are removed so the local Laundrette can offer legal services. Commercialism and professionalism do not make comfortable business partners. Making money (for people who do not have to concern themselves with standards or the consequence of default) is far more important than a set of rules or the safeguarding of a fundamental aspect of civilised society - the Rule of Law. I have seen cases where a general counsel is bypassed by the IT and Sales directors because they do not want to be told that something cannot be done the way they require.

TARGET: LEGAL PROFESSIONAL KILL BONUS: 5,000 POINTS

Professionalism is doing the right thing, when we are not being watched. Taken outside of one’s work place, that can also be called integrity and decency. Professionalism is more than compliance. It is in the way we meet with the anxious, frightened and angry client so that when they leave our room they are better-off than when they arrived. It is in our listening and communication skills where we search to find facts in support of an argument, a defence or to establish capacity. It is understanding when it is necessary to meet the client at their home or in a hospital. It is being in the cells at the local Police Station on New Year’s Eve when it is your turn to host the party or being in the Magistrates on Boxing Day to make a bail application. But for whom is this standard important? It

It is my view that there are some powerful forces which have professionals in their crosshairs. Fingers, hovering over the triggers for the headshot. These assassins work for or are in the government. Using the disguise of the Competition and Markets Authority and to supposedly strengthen business competition and prevent anti-competitive activities they decide that qualification, training and years of practice are not all that necessary to ensure competence in the delivery of legal services. The conspiracy against the laity paranoia is used to infiltrate the thinking of right minded citizens (Daily Mail readers) and they can outshout us lot so that they know our pitiful voice will sound no more than a whimper. If we don’t fight back, loud long and hard, they are right. For like professionalism itself, clients do not know about it, but we do. We should fight as we owe it to the hands that feed us. Because if we the profession are largely gone and replaced with unregulated service providers which may appear more like Banks and Building Societies, we know who ranks first in their considerations and how much money is made. Do we call these suppliers “professional?” No because their interests rank before those of their customer as with any non-professional business. For them I see nothing wrong in that stance, however for the client, then time only will bring matters around to where professionalism is once again important. It will be the new world. Professionalism is not dead, yet. But it might be in a coma for some time. Simon Stone is a solicitor and a senior partner of a law firm in Milton Keynes.

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charities

Honorary Legal Adviser to the Citizens Advice North Oxfordshire and South Northantson charitable legacies T here are times when I feel that I have been blessed with more than my share of good fortune. When I went up to UCL, as I was probably the only law student, who was aircrew fit I ended up joining the RAFVR. The RAF not only taught me to fly but also paid me for all flying and ground duties, paid me a tax free annual gratuity and provided me with a batman – a gentleman’s gentleman. The Oxford firm I chose – it was like that in those days, were very supportive and provided me with high quality work with a most enjoyable environment and job satisfaction. Tasks included taking the office to Boulogne for lunch. This in turn led to a new life where one could enjoy oneself, for example ordering a parrot to attend court to be cross examined. Its language solved the case! I ended up in a Court which was the most efficient in the South East so that every day that I alighted from the lift at work I was presented with the efficiency statistics, virtually all green, and a Court also with a flourishing exchange with German Judges. My most recent stroke of good fortune and hopefully not my last, was to apply to the Banbury CAB as it was in those days to be a volunteer. If it had been any other CAB I would not be writing this article which in many ways is a sad state of affairs.

I applied as did a very experienced solicitor and deputy judge to other CABx and the response was such that he did not pursue his

application; I doubt whether I would done so with my application to another CAB. The Banbury CAB were on the phone at once and I was invited in as soon as I could make it. I was fast tracked through every procedure, became a gateway assessor before being approached over becoming an Honorary Legal Adviser. A job spec was provided – somewhat out of date but no handbook like the SRA Handbook. I needed to get a practising certificate and waited until the autumn of 2013. By then of course Legal Aid was dwindling away. It seemed like a good idea to locate another HLA in the country but neither the bureau’s efforts nor my later efforts came up with anyone who was appointed to the position, although there was one solicitor providing help in a similar way although not as an HLA as such. A former colleague of mine Susanna Jones from Slough is as far as we are aware the only other HLA in the Country.

Although we now have the grandiose title of Citizens Advice North Oxfordshire and South Northants I shall continue to refer to us as the Banbury CAB. Not for nothing did Banbury CAB receive the Queens’ Award for Charity in 2015, the only charity in Oxfordshire to do so. There is a buzz about the place with a lot of banter in the main office. One supervisor described the volunteers and staff as being very professional which they are. I have found them all very supportive and helpful in areas such as benefits and a whole host of other issues. Banbury CAB is a marvellous organisation to work for. They are now getting their evening socials up and running again and I am a member of their walking group.

Without a handbook – one might prefer not to have something like the SRA Handbook of over 500 pages – I t has been a steep learning curve working out how to help clients. Two years ago I found an assistant who was able to help with admin, inputting things on to the computer database and on research. I then had a Oxford Brooks University Law Student for a year who was very efficient and through her link into Lexus Nexus could find answers to problems and in many ways she fulfilled the role of an articled clerk of old. That was followed by two the following year but there are gaps as their academic studies must come first. We are now moving on with plans where after some training quite a few of the advisors and supervisors will be able to deal with legal cases with some supervision from myself. I am always available in the office when I am there for two days a week and can be contacted by e-mail. My lap top when at home links straight into the CAB database. I am hoping that with a number of us involved we will be able to provide a level of advice and assistance albeit short of a full solicitor’s service, which at the very least addresses part of the problem of the appalling lack of legal aid. I understand that we have many family enquiries every week. This service will be extended to Bicester and Brackley. Although I do not think that it should be up to the CAB to fill the void, as it should be up to the government to provide an accessible and affordable justice system, which it manifestly fails to do – see the article in the Times on the Rule of Law across the world on this particular point, we do need to do something. If one approaches a Court Office,

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the response is that the Court Office cannot give legal advice and one should approach the CAB or a Solicitor. As I see it the situation over representation in Court is particularly bad. In Germany in a family case, you cannot appear without a lawyer. The Judge decides whether you can pay or whether the state pays. Last year when I was sitting next to a Family Judge at Dinner she remarked that she could spend up to 11000 Euros on a case in the form of reports and support. Committing children to the care of a local authority is rare in Germany. If only that were the case here. The Bar Pro Bono unit in my recent experience is swamped with applications and I find

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that either the application is not dealt with in time or no-one can be found to represent the client. Law Works locally provides a duty solicitor scheme in Reading and Oxford but in many courts there is no form of support at all. I have found the Personal Support Unit in Birmingham good but there is no local unit in the Thames Valley Area. Direct Access Counsel can be very variable. Fortunately a former secretary of mine is now the chief clerk at Harcourt Chambers in Oxford and she has been invaluable in from time to time finding Counsel who will appear pro bono. We all know the concerns about McKenzie Friends. Because Chatham House Rules probably apply, I can only mention that a very experienced lawyer, with considerable court

experience found himself where he had understood that a case would settle, only to find at the last minute it did not, after he had stood down his counsel. He had to appear for himself. It was one of the most frightening experiences of his life. I always looked on advocacy as the legal equivalent of surgery. Just imagine oneself in a situation without funds where there is no national health service, having to say remove a foreign object from oneâ&#x20AC;&#x2122;s body or a family memberâ&#x20AC;&#x2122;s body. There is a medical book, but one does not understand half the words. If one makes a mistake, the consequences could be very serious. The CABx nationally do a marvellous job recovering millions of pounds in benefits

for clients and providing other services. However, there is a need for more people like Susanna and myself. I would not for one minute suggest that it is anything other than hard work, but there is a lot of job satisfaction and there are a wide range of cases. Retired DJJ or DDJJ may have broader experience but a specialist such as a specialist family lawyer would equally be a great asset to any CAB. I have already mentioned the attitude of Court Offices. At least in Banbury the message has come across loud and clear that legal advice and assistance should be provided by CABx and we are doing our little bit to fill the void of there being virtually no legal aid. John Davidson

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ARTICLES

Dealing with 'parking cowboys' P

enalty Charges, given for parking are low value, but can be very emotive, and many believe that for parking on all private land the law was clarified in the ParkingEye case; (ParkingEye v Beavis [2015] 3 WLR 1373) However this case only dealt with the issue as to whether a Penalty Charge (in this case of £85.00) was a contractual penalty and/or breached the Unfair Terms in Consumer Contracts Regulations 1999, and was therefore unenforceable under contract law. What the Supreme Court did not do was to examine the underlying contract i.e. “if you park here you agree to pay a charge of £XX.....” Indeed in one of the cases in which I was involved, the unfortunate defendant for whom I ultimately acted, was extremely frustrated by the district judge who kept referring (with the assistance of counsel for the Claimant) to that case and therefore that the £150 Penalty Charge was correctly levied as a result of the notices appearing on the site. However, the critical factor is that those with rights over private land cannot have those removed by the freeholder or head tenant imposing some new management scheme, unless there is some specific reservation in the original transfer, conveyance or lease, and even then they must comply with strict provisions if they are to be able to remove rights that have been granted in the same document. My experience comes from two cases which are similar but different, and which the Consumer Association were prepared to support given the points of principle they raised. Both related to the same block of flats where designated parking spaces had been let to the Defendant as part of their leases. One Defendant (A) had a long residential lease which included a right of way over the estate roads and the specific demise of a parking space, as well as provision that the landlord could make rules for the better management of their estate. The other Defendant (B) occupied a flat in the same block under an assured shorthold tenancy with a specific reference to a specific parking space being part of the tenancy, but no reference to any ability to make changes for the better management of the estate. The Claimant purported to change the rules in

accordance with the terms of the lease to provide for a private parking company to manage the parking spaces and to impose rules which required tenants to park in their own spaces with their own cars. It was doubted by the judge in one of the appeals as to whether the new management scheme had been imposed so far as it related to car parking did fall within the provisions the lease enabling rules to be made. Defendant A was Penalty Charged by the Claimant's parking management company when she parked on the estate road outside the flats to enable her to unload furniture to take up to her upper floor flat. At the appeal the Claimant parking company admitted that it could not confirm how long she had been there and it could only have been a minute. The defendant herself believed it was only five minutes. Defendant A had not been a tenant at the time the rules had changed and been imposed. Defendant B was Penalty Charged by the parking management company when she parked in her space, a temporary vehicle, which she was using. While the Defendant B had been a tenant when the rule change took place, there was of course no provision in her tenancy to enable any of the rights to be removed. In order to dispute the Penalty Charges, both defendants first attempted to use the supposed appeal procedure provided for by the parking Management Company, which it later transpired was curiously linked with similar personnel to the Claimant itself. Neither of them were successful. They received no satisfactory response to their correspondence with the Claimant when denying that they were liable for any charges and pointing out their rights over their properties. The Claimant pushed on regardless, in a typically aggressive manner, which is so typical of such companies, and issued proceedings for their £150 claim, which both Defendants defended. Both Defendants were unsuccessful in the Small Claims Court, Defendant B following the frustrating hearing before District Judge to which I have referred, and Defendant A following the hearing on the papers only which the District Judge's reasons concentrated more on the inconsistency in the Defendant's evidence and the consultation that the Claimant had had with its tenants, and the correspondence it had with the MP rather than the plain fact that the Defendant had a clear right which could not be removed.

Undeterred, and with no small amount of determination, both Defendants sought leave to appeal from the Circuit Judge. It was during the course of this process that I was instructed and this itself highlighted to me the difficulties faced by litigants in person and the determination they require to navigate the complex rules including (among other things) the need for transcripts. I am pleased to say that in both cases not only was leave granted, but both cases were found against the Claimant and significantly with an order for costs, which is only available in small claims cases, even on appeal, only if the Claimant's conduct can be said to be unreasonable, (CPR 27.14 (g)) a conclusion which the appeal judge was strikingly able to reach, which highlights the nature of so many of these companies. In the case of Defendant A the critical point was that she had a right of way which includes an ability to load and unload within a reasonable time, per s.62 L.P.A. 1925 and the case of Bulstrode v Lambert [1953 2 All ER 728]. The Claimant was entirely unable to confirm how long she had been there and Defendant A thought that it was only around five minutes. The change in rules allowed by the lease, which may have bound Defendant A were doubted by the appeal judge to cover the parking variation and did not cover any variation to the operation of the right of way. Defendant B had the clear right granted in her tenancy and no reference to any rule changes in this tenancy. She was entitled to park in a parking space, regardless of the car she was using. This much should have been very clear to the District Judge during the small claims court hearing, but he seems to have been swayed by Counsel for the Claimant arguing strongly in favour of the ParkingEye case. I took on both cases on a no win no fee basis and was naturally pleased to not only win both, but also to argue successfully the unreasonableness of the Claimant which was a key to the no win no fee arrangement. In essence private property rights granted to tenants are very unlikely to be able to be trumped by parking schemes put in place by their landlord or head tenant. A transcript of the Appeal of Defendant A can be found at Jopson v Homeguard [2016] B9GF0A9E By James Couzens

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BERKS, BUCKS & OXON INC. LAW SOCIETY Lecture Programme Summer/Autumn 2017

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articles

Legal Apprenticeship I n August 2016 I began my career in the legal environment. I did not take the traditional route into law, starting with a law degree; instead I have started my career as a legal apprentice at Royds Withy King “RWK”. After receiving my GCSE results I progressed onto my A-levels and started to consider further education. Like many people, I believed that the only way to qualify in law was to follow the traditional degree route. However, following meetings with the school’s career advisor and talks from various apprenticeship providers and employers, I discovered that an apprenticeship was a new and alternative route into the legal profession. Whilst at senior school I decided to spend a week’s work experience at a firm of solicitors to see what it was like and to help me decide whether a job in the legal field might be for me. I spent the week at RWK (then Withy King) observing how different departments operated and gaining an insight into what it really meant to work in a law firm. I thoroughly enjoyed my work experience, and following the completion of further work experience in other firms I decided that a career in law was definitely what I wanted to work towards. Like most apprenticeships, my legal apprenticeship involves working full time in a law firm at the same time as studying for a Level 3 qualification in Legal Administration. This qualification involves learning about the legal environment and different aspects of the law as well as developing business skills such as typing and proofreading. Following more research into the legal apprenticeship, I decided to look out for vacancies, but also kept my university offers on hold in case I was unsuccessful. When I saw the legal apprenticeship vacancy at Royds Withy King I applied immediately because of my previous experience with the company whilst at school. The first stage of the application involved submitting my CV online and completing a few online questions about why I was interested in

the job and any previous work experience that I had. A few weeks later, I received a telephone call from the HR department to discuss my CV more thoroughly. We discussed my GCSE results, my predicted A-level results, my work experience and why I was interested in the apprenticeship. After this, I was referred to the training provider for the apprenticeship who conducted an initial skype interview. On successfully passing this stage I was invited for my first interview at RWK. During this interview I met with HR and a member of the Personal Injury team. On the same day, I also took part in a group activity with other candidates. This involved completing a short task to prioritise what items, from a given list, we thought would be most important for survival on a desert island and presenting this back to our interviewers. I successfully passed this stage of the application process and was invited back for a second interview with the partner of the Personal Injury team. Much to my delight, I was offered the position, shortly after this interview. Day to day my apprenticeship is much like any other job. I work Monday to Friday 9 am – 5 pm in the Personal Injury Department at RWK. I attend team meetings, training events, team building sessions, all of which have helped me to integrate into the team. What is different for me, is that I am also studying for my Legal Administration Qualification alongside my day to day tasks at work. It takes one year to achieve the qualification and I will remain in the Personal Injury team for the duration. Once a month I meet with my tutor, who comes into the office, and we discuss what I have been working on, what I need to do next and complete assignments. I have one afternoon a week of time set aside to allow me to complete my coursework in the office. There is absolutely no cost to me, the course is fully funded by my employer, and I receive a salary. In my first meeting with my tutor, we discussed the different modules that were available on the course and selected the modules that would be most relevant to me working in the Personal Injury department. We selected modules such as: the legal environment, civil litigation and negligence. Alongside modules which focus on the law, I

also complete business focussed modules such as audio typing, managing files, and business communication. Each module is assessed in a different way. For example, the ‘legal environment’ module was assessed using a multiple choice exam. The ‘civil litigation’ module was assessed during a three hour controlled assignment in which I had to complete various tasks such as; creating information sheets and drafting emails to clients. Other modules have more than one element. For instance, the ‘business communication’ module involves answering written questions about communication in a business environment as well as demonstrating effective business communication in practice. To do this, my tutor will come up to my desk and watch me carry out a task. As I am going along I explain the steps I am taking and why I am taking them. For a few of the modules I have undertaken exams, such as the ‘legal environment’ module, but most of the course involves more practical learning. Outside of my studies, following the apprenticeship has allowed me to get involved in a number of tasks to aid the firm such as preparing bundles for mediation and court hearings, as well as attending court. I believe the apprenticeship route has enabled me to gain a different insight into law than I would have gained had I decided to go to university. Not only have I started to understand some of the key legal principles and the application of the law to personal injury cases, but I have also gained practical experience of what is involved in the day to day workings in a law firm. This has given me a greater depth of understanding to help me achieve my qualification. I would highly recommend following an apprenticeship route to anyone who likes to put their learning into practice. My apprenticeship has given me a solid foundation for progressing my legal career in the coming years. Abbie Porter For more details regarding this programme, please contact: Mark Eighteen mark.eighteen@activateapprenticeships.co.uk Commercial Director Activate Apprenticeships www.activateapprenticeships.co.uk

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MEMBERSHIP

Berks, Bucks & Oxfordshire Incorporated Law Society Membership Application Form To the Committee of the Berks, Bucks and Oxfordshire Incorporated Law Society. I desire to become a member of the Berks, Bucks & Oxfordshire Incorporated law Society and I hereby agree, if elected, to be bound by all the conditions of the Memorandum and Articles of Association of the said Society. Dated this . . . . . . . . . . . . . . . . . . . . . . . . . day of . . . . . . . . . . . . . . . . . . . . . . . . . 20 . . . . . . . . . . . . . . . . . . . . . . . . .

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NOMINATION I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . being a member of the Society, nominate the above named Solicitor

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SEND This application form to The Hon. Secretary, Berks, Bucks & Oxfordshire Incorporated Law Society DX 45803 Woburn Sands, or Shelton House, 4 High Street, Woburn Sands MK17 8SD (Please enclose cheque for £50 pa full membership, or £15 for those admitted less than 5 yrs on 1 March last, or £10 if not in private practice or if you are retired) payable to Berks, Bucks & Oxfordshire Incorporated Law Society) Date elected: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Added to database: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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GDPR Compliance Matt Torrens, Managing Director at Legal IT Specialist, SproutIT, reflects on some of the many key points covered at his recent LPMA Seminar on GDPR compliance. What is the GDPR? The General Data Protection Regulation (GDPR) comes into force in May 2018 and will replace the Data Protection Act 1998. It is broader in scope, strengthens rights of the individual, brings extra requirements to data Processors and Controllers and, of course, is backed by higher penalties. GDPR is a legal requirement. A ‘regulation’ is a legal act of the European Union that becomes immediately enforceable as law in all member states simultaneously – it does not need to be transposed into National law. Do we need it? The primary objectives of the GDPR are to give control back to citizens and residents over their personal data and to simplify the regulatory environment by unifying regulation within the EU.

and a number of professional obligations surrounding data protection, however GDPR takes this compliance to a new level. Will Brexit affect GDPR? There has been some confusion about how Brexit will affect GDPR. The UK will remain a full member of the EU until the negotiations on withdrawal are completed. The government has confirmed that the UK’s decision to leave the EU will not affect the commencement of the GDPR. Next Steps Organisations need to act NOW to identify what steps are necessary to ensure that they and their members are fully compliant by the implementation date. It is wise to run a Gap Analysis process, in order to understand your current position, against the Regulation, and determine the steps you must take in order to achieve compliance. You will need to blend People, Process and Technology to properly address your GDPR reponsibilties. If you accept that brand awareness and

reputation is key to the survival and growth of your practice, then you might also consider how to build reputational resilience in the form of a Cyber and GDPR strategy. FInd out more Matt Torrens, MD of SproutIT has over a decade of practical data protection experience working with law firms, and is also EU GDPR Foundation & Practitioner certified. For a copy of the SproutIT GDPR Cheat Sheet for the legal sector, email; AskTheExpert@ sproutit.co.uk www.sproutit.co.uk info@sproutit.co.uk @sprout_it LinkedIn: Sprout Technologies Ltd

Chambers and all Legal firms are already subject to the Data Protection Act 1998,

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Mapping Environmental and Planning Risks contaminated land, ground hazards, and ‘Energy & Infrastructure’ are assessed and provided to the homebuyer in one report. This is further supplemented with advice and recommendations from expert environmental consultants, Argyll Environmental.

rospective home buyers take the time to find the home that ticks as many boxes on their wish list as possible; right location, number of bedrooms, outside space and in the right price bracket, to name just a few.

negligence case against the conveyancer.

They may have also undertaken their own research into areas such as school catchments, nearby shopping or leisure facilities, or to check the locality for local parks, pubs or other places that are important to them.

In recent months, legal search reports have taken a great leap forward to provide solicitors and their clients with extremely user-friendly options that provide clarity relating to a wide range of areas.

Homebuyers do however tend to rely on their legal professional to be their final ‘eyes and ears’ when it comes to understanding any potential ‘risks’ that may not be immediately apparent when undertaking their own research.

Today, ‘digital bundles’ are available that provide not only environmental and local planning due diligence via an electronic PDF report but also offer the opportunity to assess the findings via an online mapping viewer.

For example, is the property at risk of flooding? It may have been a sunny day when viewing the property, but what happens in times of bad weather? Is the property connected to mains drainage or does it have its own sceptic tank? Or, perhaps there is a new development planned in the field next door, which could impact not only the enjoyment or views from the property, but potentially its future value. Importantly, if a homebuyer doesn’t believe vital information was made available or explained to them as part of the conveyancing process and they later come to have an issue, they may be in a position to pursue a legal

From a solicitor’s perspective, it is therefore vital to demonstrate that full and proper due diligence has been undertaken. What’s the answer?

By accessing the mapping tool, users can easily ‘drill in or out’ of the map, to see exactly what risks are present, and where, in an instant.

On top of this, local planning applications, land use designations, rights of way, housing and neighbourhood demographics are also provided via Landmark’s Plansearch Plus report, meaning it takes seconds to identify whether any planning applications may have an impact, enabling the client to determine whether this is an issue for them or not. Clients can quickly see where any environmental risks may be present within 250m of the property, in addition to active/pending/approved residential and commercial planning applications up to a 750m radius via the mapped viewer. Plus, with everything visible on an Ordnance Survey map, it’s extremely easy to see where the risks are. As such, clients can be confident that a rigorous assessment has been undertaken, creating peace of mind, and demonstrating compliance (and best practice) from each conveyancer’s perspective. By accessing an all-in-one search report, it not only speeds up transaction processing thanks to the concise delivery of information, but saves even more time and closes a compliance gap by removing the need to identify a different suite of search reports for each and every transaction.

This makes it extremely easy to see the results being presented and identify where further investigation is needed, prior to the sale completing. Mapping Environmental & Planning Intelligence Landmark’s RiskView Residential is one such option. It presents the findings previously provided in four separate environmental reports in one order. Now, flood risk,

Angela Gordon-Lennox Landmark Information www.landmark.co.uk 0844 844 9966

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The biggest change to AML in a decade

ery soon after the election, we expect the “Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 to be enacted. As yet, they are still in draft form and subject to change. Much of the 2007 regulations remain intact, however, there are considerable amendments and additions and below are highlighted those most relevant to lawyers. Risk Assessment Each firm will have to prepare a risk assessment. This will involve taking reasonable steps to identify and assess the risks your firm faces, and keeping a written and up to date record of those steps you have taken. When compiling your risk assessment, you should consider: • Who your clients are • Where your clients, or their funds are coming from • The services you are providing to your clients • How you provide services to your clients • Size and nature of your business Whilst it is not possible to prevent entirely the risk of being targeted by criminals, having a robust risk assessment will justify the steps you took. Policies, controls and procedures You must establish and maintain policies, controls and procedures to mitigate and manage the risks which you have identified in your risk assessment. They need to be proportionate to the size and nature of your business. Your policies must provide for the scrutiny of complex and unusually large transactions. This means each matter will need to be risk assessed. You should consider the due diligence information which has been obtained, and the nature of the instructions. The main question that lawyers need to ask themselves is does the transaction make sense?

Internal Controls The internal controls which you must implement will depend on your assessment of the size and nature of your business. You may need to • Appoint an individual who is on the board, or equivalent as the officer who is responsible for compliance with the regulation • Carry out screening of relevant employees and agents. • Establish an independent audit function to

examine the effectiveness of the policies Training The training you provide must now also include training on Data Protection and the obligation to train extends to agents. Customer Due Diligence (CDD) CDD is not just required at the beginning of a relationship with the client, but also must be applied when you become aware of changes in the circumstances of an existing customer. There are some important additions to the 2007 regulations in relation to a body corporate, namely • The memorandum of association. • Where the client is beneficially owned by another person you must now also to verify the identity of the beneficial owner. • Where the beneficial owner is a legal person, you also need to understand the ownership and control structure of the beneficial owner. • These requirements will not be satisfied by relying only on the register of people with significant control. • If the person instructing you is acting on behalf of a client, you must verify that person It is also important to note that the definition of beneficial owner of a trust has been extended to now include settlor, the trustees, the beneficiaries or class of beneficiaries and any individual who has control of the trust. Enhanced Customer Due Diligence (EDD) The Regulations are more prescriptive as to when EDD measures need to be applied. You must apply EDD when the case is high risk. When assessing whether a matter is high risk, you must consider regulation 33(6) including amongst others, customer, service and geographical risk factors. EDD means examining the purpose of the transactions and increasing the frequency of monitoring. You may also seek further independent verification of the information you have been provided, take more steps to understand the ownership and financial situation or to ensure the instructions fit the client’s business. PEP definition This has changed to include domestic PEPs and widened to include members of governing bodies of political parties and on the board of international organisations. Simplified Due Diligence (SDD) and Pooled Client Accounts. In relation to the client account, banks can apply SDD provided that

• The firm presents a low degree of risk, and • Information on the identity of the person on whose behalf monies are held in the PCA are available on request and within 2 working days You will need to ensure that you have explained to the client that, if the bank requests information about who you hold funds for, you will be required to provide that information. The client needs to consent to that. Data Protection You must provide new clients with a statement that any personal data received will only be processed for AML and CTF purposes. Data must be retained for 5 years following the end of the business relationship but then deleted unless you are required to keep it by law, or the data subject has given express consent for its retention. You will need to ensure that you have the client’s express consent to keeping the data for longer than 5 years. ‘The Biggest Change to AML in a Decade’ is a series of short succinct articles which looks at some of the main issues directly affecting solicitors. Whilst the final regulations are yet to be finalised, it is clear, that in a relatively short period of time, solicitors firms will need to make a number of changes to their policies and procedures to comply. To stay up to do date with the latest developments and to receive the latest articles in this series, email solicitors@uk.lockton.com or visit www. locktonsolicitors.co.uk About Amy Bell Amy Bell is Risk Management Consultant for Lockton, award winning providers of effective risk management solutions. With over 12 years’ experience advising law practices across the UK and globally, Amy helps firms to adapt to the changing legal landscape and how to adopt best practice in implementing compliance procedures. Through consultancy with partners, Amy provides training and support for everyone in the firm to help understand compliance and how to apply risk management principles to improve client service and deliver maximum efficiency. She is the Chair of the Law Society’s Money Laundering Task Force, where she represents the Solicitors profession at Government and in Europe. She is also the author of the Law Society’s Anti-Bribery Toolkit. To learn out more about Lockton’s Risk Management Training and Consultancy services please visit www.locktonsolicitors. co.uk

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Top tips on combatting fraud

he wellpublicised Mishcon de Reya £1 million fraud case, when its client was duped into buying a London property from a seller dishonestly posing as the owner, has sent ripples of alarm throughout the legal community. Although conveyancers are an obvious target for the increasing threat of rogue house owners and buyer deposit redirection fraud, it’s not just conveyancing practices that need to be on their guard. As a legal practice, you’re tempting prey for cyber criminals, not only because you hold large sums of money, but also vast volumes of valuable client information. The number, variety and sophistication of cybercrime grows daily, ranging from distributed denial of service attacks and phishing scams to hacking and ransomware. To qualify my argument, here are some recently quoted cybercrime statistics:• National Fraud Intelligence Bureau’s 2016 figures show 159 recorded losses of buyer deposits which is an 85% year-on-year increase • Office of National Statistics quotes 5.8 million cybercrime incidents which equated to 40% of all recorded criminal activity in 2016 • Action Fraud estimates the cost of cybercrime is currently £193 billion per year • BIS Information Security Breaches Survey revealed that 81% of large organisations have experienced a security breach with the cost per company being, on average, between £600,000 and £1.5 million And this is only the tip of the iceberg. Underreporting is a big issue. Many cybercrimes go unreported for fear of criticism and disciplinary action. You have a professional responsibility, enforceable by industry regulators, to identify, contain and remediate breaches, cyberattacks included. Aside from your regulatory obligations under the SRA Code of Conduct, you face new pressures from indemnity insurers who’ll want to see plans in place to thwart criminals when renewing policies and setting premium rates including runoff cover. There’s a plausible case for the need for a separate cyber insurance policy, over and above PII, to address the risks posed by cyber criminals

and assist the recovery of potential losses incurred. Not forgetting your other compliance responsibilities. The Data Protection Act 1998, Money Laundering Regulations 2007, Proceeds of Crime Act 2002, Terrorism Act 2000 and new EU General Data Protection Regulation applicable from May 2018 to name a few. The stakes are high but there’s much you can do to mitigate risk by creating a robust, reliable and secure cyber environment. Access our previously published ‘Desktop security: 10 top tips’ article for more in-depth advice on how best to manage risks within your IT infrastructure. We cover topics such as operating systems, email attachments, file transfers, data back-ups, passwords and more. Visit www.quill.co.uk/desktop-security. Because cyber security is such a serious business risk, we’re extending our earlier guidance here with some top tips on combatting fraud so that you can take proactive steps to tighten your defences:Beware of outside-of-the-norm behaviour and requests for monies According to the Solicitors Regulation Authority (SRA), 75% of cybercrime reports are so called ‘Friday afternoon frauds’. These cases involve criminals intercepting and altering emails being sent between two parties (solicitor and client), mostly bank details in order to redirect funds. If you’re suspicious, raise queries, several times if needs be, and ideally via a known telephone number. As part of this, you could set up a dummy run with a £1 transfer. Once receipt’s been confirmed, you’re ready for the real McCoy. If it turns out to be completely legitimate, those concerned will appreciate your stringent questioning and testing. Review your new client intake procedures When new clients instruct your firm for their legal matters, what checks do you carry out on them? A cursory glance at someone’s passport, driving licence or utility bills is no longer sufficient for purpose. Seek out as much detail as possible on both identity and credit history so that you’re confident your clients are who they say they are, have the means to pay for your services and that your hard-earned profits aren’t ending up in the greedy hands of racketeers. Also, tell clients upfront – both face-to-face and

within your client care documentation – that you’ll never ask them to send money to a different account than that already provided. That way, they can be on the lookout too and immediately contact you should they receive any communications of this nature. Define your client money handling processes Money is of course the biggest incentive and the SRA’s referred to £7 million of client money being lost to cybercrime in the last year. With the SRA Accounts Rules at the forefront of your mind, make a clear distinction between client and office monies, assign duties to your cashiering team members, designate reporting lines and outline timescales throughout. For example, you may specify only appointed staff should transfer money and make it a habit to take deposits as late as practicable so there’s less money on account at any given time. As well as giving your clients a higher level of service, you’ll lessen the risk of financial theft. Create disaster recovery and business continuity plans To form an adequate series of responses to unexpected emergencies, attempted crime amongst them, produce carefully written disaster recovery and business continuity plans. These will contain information on the types of crises which could befall you, how you should act if they do, roles of primary staff members, phases of recovery, emergency contact numbers, anticipated outcomes and records of test or genuine disaster situations. The ultimate objective is to put your firm in the strongest position to deal with critical incidents with minimum disruption to the running of your business. This is yet another area we’ve written about extensively before. Read our ‘Top ten disaster recovery and business continuity planning tips’ for further details. Visit www.quill.co.uk/disasterrecovery-planning. Develop a risk management policy and monitor activity Prevention is always better than cure so set out your preventative and detective measures within a risk management policy. These may comprise IT-based solutions such as SSL encryption and antivirus software to physical security devices such as CCTV surveillance and burglar alarms. Your

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policy will address how to classify, deal with and communicate risks. Analyse your business closely for signs of unusual activity that could indicate the beginnings of an attack. The sooner you’re able to counteract possible violations, the better, to effectively stop criminals in their tracks. Report every failed and successful attack There’s an onus on you to do so, and the legal profession can only clamp down on cybercrime if we truly know the extent of unlawful activity and methodologies employed. With more two-way conversations, trends can be recognised, scams identified at an earlier stage, alarms raised to others and appropriate responses carried out.

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software installation, to assigned personnel. Small steps such as these can go a long way to minimising exposure to risk. One weak link is all it takes to open your business to intrusion.

office services such as fully outsourced cashiering and payroll. Your outsourcing provider’s keen attention to detail will immediately highlight anomalies and alert you to dubious goings-on.

Similarly, if you employ home and remote workers, you’ll want to restrain use of unapproved devices and removable media, both of which carry their own security risks and can uncover your entire network to vulnerabilities. Set up some safe parameters for your staff to adhere to then educate your personnel in IT best practice.

Remember the SRA Code of Conduct here. Ensure outsourcing agreements – be it for cloud software or outsourced services – allow you to comply with your client protection duties. And ask about ISO certifications for reassurance that your supplier conforms to international security standards.

Evaluate your IT systems and suppliers

Consider your employees’ role in your business and engage your workforce in best-practice risk management

We’ve already briefly mentioned the importance of running the latest operating systems, performing automated back-ups, installing firewalls, and using dedicated anti-virus and anti-spyware software for protection against hackers. There’s readily available software to reduce risk even more. Antimoney laundering checks, credit screens, conflict of interest searches, proof of identity document capture and breach warnings will preserve your matters and their associated finances.

Restrict certain tasks in your business, for example

Or, you can go a step further and enlist extra back

Notify the SRA, Action Fraud, Information Commissioner’s Office and / or your insurers.

Julian Bryan, Managing Director, Quill Pinpoint

Julian Bryan joined Quill Pinpoint as Managing Director in 2012 and is also the Chair of the Legal Software Suppliers Association. Quill is the UK’s largest outsourced legal cashiering provider with 40 years’ experience supplying outsourced services, legal accounts and practice management software to the legal profession. To contact the Quill team, call 0161 236 2910 or email info@quill.co.uk.

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Book Review HOUSING LAW CASEBOOK 7th edition By Nic Madge and Sam Madge-Wyld

Do read the introduction as your first port of call. Results of hearings, at worst, “may result in homelessness for tenants or severe economic problems for landlords” say the writers. They go on to comment that, at best the hearings “may result in the provision of good quality accommodation for tenants or the realization of substantial economic assets for landlords” so there can be a great deal at stake.

The title is also of great help to more recently qualified practitioners and the Young Bar. It is also highly likely today that many litigants in person will use the casebook. And, like all casebooks, it is great for those who do not have ready access to law libraries and require short summaries of cases to assist in the understanding of particular areas of housing law. But, a word of caution as with all casebooks- don’t treat it as a replacement for the law reports!

PROBABLY THE MOST FAMOUS, MOST IMPORTANT AND MOST USEFUL CASEBOOK ON HOUSING LAW NOW AVAILABLE

Where we come in as advisers rests with the conflict of interest between the parties which is frequently a major factor with cases bitterly fought so you do need this book as a main point of reference. One of the biggest single problems is that of the conflict of interest between “often destitute homeless people and local authorities” where the authorities “frequently do not have the financial resources or organisation to comply with their statutory obligations”.

In some of the earlier editions of this work, we commented on the main aim of the authors which had been to include all the cases that housing law practitioners “will ever need”. Sadly, but not unexpectedly, “that is no longer possible” but Nic and Sam gives us the best possible service for our legal practice with this new seventh edition as a time when many areas of substantive law are in much the same position.

“Housing Law is hard law” write the two expert authors, Nic Madge and Sam MadgeWyld. One reason is because of the effect that housing cases can have on people. Any person involved in housing needs this book: the largest of the Legal Action Group titles available at 1,300 pages, with every single page counting!

The main purpose of this casebook is to give us, as practitioners, help in tracking down and reading, very quickly, cases which we know about although we may have forgotten some of the details- more of a common problem than many realise with the massive number of new authorities now available.

ISBN:

978 1 90840 790 0 (book) 978 1 90840 791 7 (ebook)

LEGAL ACTION GROUP The access to justice charity Available as an ebook at www.lag.org.uk/ ebooks www.lag.org.uk

A big “thank you” remains all that needs to be said to them and to LAG and please remember to contact the authors should you have any points to make about the new edition. We believe that the contents of this book for the practitioner cannot be bettered! The law in this book is up to date as at 8th February 2017 and is available as a book and an ebook.

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EXPERT WITNESS

Experts in 21st Century By Phillip Taylor MBE, Reviews Editor of “The Barrister” and Head of Richmond Green Chambers

he Expert Witness Institute (EWI) has a new chairman - Martin Spencer QC. In one of his first comments, he says that “it has never been more important to highlight the critical role expert witnesses play in supporting the proper administration of justice and to establish the highest standards of best practice”. And he is absolutely correct!

Use of expert evidence in legal proceedings has been a long-standing tradition, with the first recorded use of an expert witness in the UK courts being recorded in 1782 and now subject to stringent procedural rules which all experts should have a working knowledge of. In the litigation cycle expert witnesses play

a vital role across civil, criminal and family proceedings in the administration of justice. An expert witness is someone who, by his/ her training, education, skill, or experience, is known to have specialised expertise or knowledge so that other people may rely on their opinion. “In providing independent assistance to the court by way of objective, unbiased opinion in relation to matters within their expertise, they make complex issues understandable to lawyers, judges and juries” declares Spencer. The Procedure Rules for court work are quite clear – the expert performs his or her duty to the court. That duty overrides any obligation to a party from whom the expert is receiving instructions. The ‘knock-on’ effect with modern litigation is that the number and types of experts are increasing. “They have become an integral part of the court process” declares Spencer. Many lawyers use experts in criminal proceedings in areas as diverse as accident investigations, forensic linguistics and

the increased use of DNA evidence. In civil and family courts, experts cover areas such as forensic accounting, civil engineering, medical, and many more. It is recognized that, with litigation entering increasingly complex areas, the effective use of a good expert witness is increasingly important. “There is no doubt that high quality expert evidence will continue to play an important role in all court proceedings” says Spencer. He adds that “there will always be a need for expert opinion about questions that are outside the knowledge, skill and experience of the court”. To meet this challenge, instructing lawyers need to ensure they work only with experts who understand their duties within the latest procedure rules, and experts need to take responsibility for their development and training to ensure they meet the highest standards which the EWI oversees so effectively as the importance of experts grows with the changing face of litigation in 21st century.

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Paternity Fraud, a blow to the stomach… I

ncreasingly entering common parlance is the term “paternity fraud” which is the naming of a man as being the biological father of a child by that child’s mother, when in fact, she knows he is not the father. Paternity fraud is a subset of “mis-attributed paternity”, where a child has been fathered by one man, but is actually the child of another and that mis-attribution is deliberate rather than accidental. In other cases the male may have agreed to bring up the child of another (e.g. from a previous relationship or adoption), but in others, the male mating tactic of cuckoldry has occurred and the male is unaware that the child he is bringing up is not his. While this metaphor can be taken a little too far (since the child is genetically linked to the mother and does not generally expunge the half siblings from the house), it is a common term in evolutionary biology, where it is applied to unwitting males who make a significant parental investment in off-spring which are not genetically related to them.

The motivation for paternity fraud includes; a) false claims from either parent with the objective or avoiding or receiving child maintenance payments, b) mothers who wish to hold their family together rather than discourage parental investment from the incumbent male or expose her infidelities or c) males who wish to avoid responsibilities, whether these be financial or familial or indeed, cover up their own indiscretions from their spouse or partner. As to the frequency of paternity fraud, then there are no clear figures and one should be aware of often mis-quoted data from mis-paternity studies where subjects had a reason to take the DNA test. These data are valid in their own right but are not applicable to paternity fraud. The emotive headlines we often see in the popular press, which potentiate the urban myth of increasing paternity

fraud in UK society, does us all little service and there is no verifiable evidence that paternity fraud is on the increase. However, it does occur. DNA profiling provides evidence of biological relationships and as responsible test providers, we are acutely aware that with the prospect of incontrovertible evidence, people who are contemplating or indeed, driven to, paternity fraud may attempt to obfuscate the procedure. Accordingly, procedures are in place to minimise this possibility.

In fact, paternity fraud is not a new concept, it has been with us for generations and our literature and law is littered with reference to it. It is also mentioned several times by Shakespeare in his various works, where the husband of an adulterous wife, the “cuckold”, is often seething with underlying suspicion. For example, when Iago addresses Othello (III.iii.165); “That cuckold lives in bliss, who certain of his fate loves not his wronger, but O, what damned minutes he tells o’er, who dotes yet doubts, suspects yet fondly loves”.1 To which Othello replies..”Oh, misery!”. It is the “Oh misery” that is instructive, the discovery of a paternity fraud has been described as “a blow to the stomach”. The origin of paternity fraud dates from the 1576 Poor Act, when the law required mothers with illegitimate children to name the father in order to ensure that he supported her financially, thus placing a lesser burden on the Parish Poor Law Overseers. They ensured weekly payments from the named “father” by issuance of “bastardy bonds” and which thus created the first opportunity for paternity fraud, as blackmail and perjury then became rife. The law was repealed in the “New Poor Law” of 1834 in order to save poor men from unsuitable marriages and then, a woman with an illegitimate child was sent to the workhouse without financial compensation. These days paternity fraud may be pursued using the tort of deceit (on the balance of probabilities that the intention was fraudulent) and is not

a criminal matter unless a false statement is knowingly made on a public document, such as on a birth certificate or perhaps in information provided to the CMA. There have been a handful of cases which have reached the courts and where damages have been awarded to the male for “indignity, mental suffering/distress, humiliation” or “emotional hurt”, though there are also cases where this approach has been unsuccessful2. It has not yet been possible however, for the male to retrieve maintenance payments, as the court takes the view that bringing up a child confers benefits as well as costs. Paternity fraud has thus been with us for generations and is of course hard to completely eliminate, but the use of an accredited DNA testing procedure makes it difficult for this to remain undetected and also provides unequivocal evidence to support cases involving the tort of deceit. In the UK the use of the rather explosive paternity fraud accusation is relatively modest; this is largely due to the judicious use of accredited paternity testing. Dr Neil Sullivan Complement Genomics Ltd, trading as dadcheck®. www.dadcheckgold.com sales@dadcheckgold.com 0191 543 6334

The modern text… The man who knows his wife is cheating on him is happy, because at least he isn’t friends with the man she’s sleeping with. But think of the unhappiness of a man who worships his wife, yet doubts her faithfulness. He suspects her, but still loves her. http://nfs.sparknotes.com/othello/ page_142.html, accessed 10th May 2017. 1

P v B (Paternity: Damages for Deceit) [2001] 1 FLR 1041; A v B (Damages: Paternity) [2007] 2 FLR 1051; Webb v Chapman [2009] EWCA Civ 55. 2

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Cybercrime: how do you protect your law firm from ransomware threats? The

ansomware threats to law firms have increased at an alarming rate over the last eighteen months. As a leading supplier of practice management software, at LawWare we occasionally hear apocryphal stories about firms who have paid the ransom rather than risk downtime and data loss.

What is ransomware? Ransomware is computer malware that installs itself covertly on a victim’s computer or network. It then executes a cryptovirology attack that adversely affects it and demands a ransom payment to decrypt it. Simple ransomware may lock the system and display a message requesting payment to unlock it. More advanced malware encrypts the victim’s files, making them inaccessible, and demands a ransom payment to decrypt them. Ransomware attacks are typically carried out using a Trojan that is disguised as a legitimate file. The ransom is almost always demanded to be paid in the digital currency, Bitcoin.

Here are a few simple tips that can be put in place to mitigate the risk. Protection checklist. Backup all your data. By far the most important weapon in your arsenal is a regularly scheduled backup. If you are subject to an attack you can simply wipe your system to eliminate the ransomware and re-install the backup. The more often you backup your data, the less you will lose. It’s worth thinking about your backup frequency and just how much data your practice can afford to lose without affecting its performance. Keep your software up-to-date. Ransomware often relies on the victim running outdated software where vulnerabilities are known. To combat this, the best approach is to create protocols for ensuring updates are performed when necessary. Keeping common third-party software such as Java and Flash up-to-date will eliminate a large number of threats. Educate your staff. Your staff are the weakest link

in the security chain. If they allow themselves to fall victim to a phishing scam or other email generated approach, they can compromise the security of your entire business. Teach fee earners and staff to recognise potential threats and to treat unrecognised or unsolicited mails with extreme caution. Train them to ask these key questions about emails: • Do I know the sender? • Do I really need to open that file or go to that link? • Did I really order something from this company?

Avoid being infiltrated. Occasionally your staff may unwarily visit compromised websites or open emails that contain malvertising. These are the usual sources from which the infiltration and malicious downloads will come. By blocking access to malicious websites, emails and attachments you can protect your network and avoid problems. Use high quality antivirus software. There really is no excuse for being lax in this matter. Making use of a good quality antivirus solution throughout

your entire system is a must. Ensure all laptops and portable devices that interact with your network have the same levels of protection as the network itself. Know the enemy. Intelligence about the latest threats provides you and your IT staff with advance warning about cyber-crime activity in your area and industry. You can keep up to speed with the latest reports from cyber intelligence organisations such as Talos. Talos publicly shares information about emerging threats and provides forums and instructional videos to help you keep ahead of the game. Finally, say no to ransom demands. You may be tempted to pay up and recover access to your data to avoid both inconvenience and real operational problems. This should be the last thing you think about! Make sure you notify the authorities and remember, succumbing to the demands will only encourage the criminals to make further attacks. Mike O’Donnell, LawWare Limited.

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The

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LAW SOCIETY NEWS

Jackson warns of “harsh” costs sanction over mediation frustration

party that frustrates the mediation process by “delaying and dragging its feet for no good reason” will face a potentially “harsh” costs sanction as a result, Lord Justice Jackson has warned. Thakkar and Anr v Patel and Anr [2017] EWCA Civ 117 was decided in January but has only come to light recently. It concerned a dilapidations claim and counterclaim for rent repayment over a school in Leicester. Both parties achieved a measure of success at trial but, finding that the defendant tenants had been unenthusiastic about a mediation being pushed by the claimants earlier in the proceedings, the judge ordered the defendants to pay 75% of the claimants’ costs. On appeal by the defendants, Lord Justice Jackson (pictured), sitting with Lord Justice Briggs, found: “The defendants, while not refusing outright to mediate, dragged their feet and delayed for so long that the claimants lost confidence in the process and closed it down. The judge held that this case was suitable for mediation. He held that, if there had been a mediation, there was a real chance of achieving a settlement. Those findings were plainly correct.” Had the case settled, he continued, “the vast majority of the litigation costs would have been saved”. Jackson LJ referred to the Court of Appeal’s 2013 ruling in PGF II SA v OMFS Company. He said: “The message which this court sent out in PGF II was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed. “The message which the court sends out in this case is that, in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, that will merit a costs sanction. In the present case, the costs sanction was severe but not so severe that this court should intervene.” PGF II was cited in another Court of Appeal case this week, which included a submission from the losing defendants that the trial judge had failed to make some allowance in their favour for the fact that the claimant refused to or failed to engage with their proposal that the dispute should be referred to mediation. In Gore v Naheed and Anor [2017] EWCA Civ 369, a dispute over a right of way, Lord Justice Patten said he had “some difficulty in accepting that the desire of a party to have his rights determined by a court of law in preference to mediation can be said to be unreasonable conduct particularly when, as here, those rights are ultimately vindicated”.

He recounted that, in PGF II, a failure to engage, even if unreasonable, did not automatically result in a costs penalty. It was simply a factor to be taken into account by the judge when exercising his costs discretion. Patten LJ went on: “In this case, the judge did take it into account but concluded that it was not unreasonable for Mr Gore to have declined to mediate. His solicitor considered that mediation had no realistic prospect of succeeding and would only add to the costs. “The judge said that he considered that the case raised quite complex questions of law which made it unsuitable for mediation. His refusal to make an allowance on these grounds cannot in my view be said to be wrong in principle.”

AJA Legal Services AJA Legal Services have been trading for over twenty six years. The Managing Director of the Company Avril Ashley, is a Costs Lawyer & Mediator with authorised body status which means that she can act for you in many types of cases in the Courts concerning legal costs. She is a Member of the Association of Costs Lawyers and has their advocacy certificate and can therefore act for you without the need for a solicitor. The service had been built on a friendly and reliable service with the personal touch, nothing is too much trouble and all bills of costs are taylor made and not from a computer programme so are individual to each case. This does not mean a quill pen is used! All bills, points of dispute/replies are prepared using up to date software and can be easily emailed to you to save time.

We deal with all aspects of costs including bill preparation both Legal Aid and Inter Partes and offer the following services: • Advice for both professional clients and litigants in person • Bill drafting/Claimant/Defendant • Budgets/drafting/advice, attendance at the costs management hearing • Points of Dispute • Replies • Attend detailed assessment hearings • Prepare for provisional assessment • Part 8 claims (costs only) • Solicitors Act 1974 Assessments • Court hearing (costs only) • Mediation • Commissioner for Oaths Contact Tel: 020 8302 2467 Fax: 020 8302 0130 Email: avril.ashley@ajalegal.com Twitter: @thecostlawyer LinkedIn: Avril Ashley A.J.A LEGAL SERVICES LTD Costs Lawyer/Costs Draftsman/Mediator 26 Midfield Way, Orpington, Kent BR5 2QJ

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Cybersecurity issues central as experts agree firms should view them as a serious business risk

e have brought together leading experts to discuss cybersecurity risks to coincide with our spring update to the Risk Outlook.

Our roundtable involved leading agencies and experts from a range of sectors to discuss how businesses can tackle the risks of cybersecurity. As well as us, there were representatives from the Information Commissioners Office, Barclays, Advent IM, National Crime Agency, IASME & UK Cyber Forum, BGi.Cyber.Ltd., Pelican Underwriting, QBE Insurance, Cyber Strategies, PA Consulting and Microsoft. There was general agreement that law firms are an attractive target for criminals not only because they can hold large amounts of money but also valuable client information. Three key themes from the roundtable were that: • Too often cybersecurity is viewed as just an IT risk. It is a business risk that requires engagement and ownership at a senior management and Board level. Training staff is important, but businesses also need to develop a culture where cybersecurity is treated as a serious priority. • People and processes are as crucial as technology. Law firms should consider having rigorous and unambiguous procedures for when clients notify them of any changes to their personal information or bank details

during a transaction. • The use of unsupported software increases an organisation’s vulnerability. In addition to addressing this risk, businesses should also consider the benefits of implementing Cyber Essentials - a Government-backed scheme to help organisations protect themselves against common cyber attacks. The roundtable coincides with the publication of our spring update to its Risk Outlook, which highlights seven priority risks for the legal sector. It shows that three quarters of all cybercrimes reported to us involve email modification fraud. Half of all such reports are email modification frauds against conveyancing proceeds. It says any field of work which involves client money is at risk, with probate another common target. We are committed to taking a constructive and engaged approach with firms when they fall victim to cybercrime. However, the risk update does highlight that we will take action where firms are not proactive. For instance it has this year issued rebukes in cases where a firm has failed to report the loss of client money or been slow to remedy client losses. Paul Philip, SRA Chief Executive, said: “We all benefit from information technology, but that means we are all vulnerable to cybersecurity risks. These risks evolve rapidly. Whether it is money or sensitive client information, law firms are an obvious target. It is

the job of firms to take steps to protect themselves and their clients, but we want to help.

The update of the Risk Outlook is available here: (http://www.sra.org. uk/risk/outlook/priority-risks.page)

“So in addition to regular updates and conversations with firms, we also want to make sure we learn from insights across all sectors. It was clear from our roundtable how similar the issues are. By working together we will be in much better place to stay cybersecure.”

We published a detailed report into the IT security at the end of 2016: (http://www.sra.org.uk/risk/resources/ information-security-report.page ) Neil Kevan Trust & Probate Underwriter