Biblio 3 online edition by EPC Studio

Issue 3 - Autumn 2017

Biblio Berkshire â&#x20AC;˘ Buckinghamshire â&#x20AC;˘ Oxfordshire Incorporated Law Society

Remember the last time you had this much fun?* Then save the date for our Annual Awards Dinner at the Oxford Spires Hotel! 15th June 2018 *Probably at our 1954-55 Annual Dinner, like this jolly crowd! Spot anyone you recognise?

In this issue: Life as a trainee & much more...

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Issue 3 - Autumn 2017

From the President...

Berkshire Buckinghamshire Oxfordshire Incorporated Law Society Magazine

Contents

Welcome to our third edition of BiBliO. Thank you for the kind comments about this publication. Hopefully the summer has seen most of us having some respite from our daily routine although the work before and after a vacation can be exacting!

From the President

Committee Members

A word from the Editor

News: Save The Date - Annual Awards Dinner

BBO Subscriptions notice

Life as a Trainee

HMRC's new Trusts & Estates Register

A stroll down memory lane...

BBO Lecture Programme Winter/Spring 2017-18

The Law Society Relationship Manager

BBO Membership Application Form

Listening to clients

Philanthropic Giving Structures

The BB&O Annual Dinner will take place on Friday 15th June 2018. Please put the date in your diary and join us for the evening at The White Spires Hotel, Abingdon Road, Oxford.

Financial Concerns and the Charitable Spirit

Rules for becoming a solicitor still lacking clarity

Bending over backwards

Simon Stone President, BB&O Law Society 2017/2018

Law Society Expert Witness News

Do you need an Expert in Hot Tubs?

Fraudulent bank calls to law firms – how to protect yourself

That Sinking Feeling

Book Reviews

Protecting your practice from modern day business risks

Five reasons to outsource your payroll

Legal Indemnity insurance continues to evolve

It is a privilege to be the President of the BB&O for the next two years. I had the honour of attending the Past Presidents luncheon at Phyllis Court Club, Henley in October which was most enjoyable especially renewing acquaintances. It was good to see such keen interest and erudition. As a grateful guest at the Northamptonshire Law Society Annual Dinner and Awards in September I celebrated in the achievements of individuals and firms. This is becoming a feature at many Local Law Societies including ours and I welcome it.

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membership

Berks, Bucks & Oxfordshire Incorporated Law Society

Committee 2017-18 President Simon Stone Kingsley David DX 45801 Woburn Sands simonstone@kingsleydavid.com 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 Roderick McCulloch Reynolds Parry Jones DX 4407 High Wycombe roderick.mcculloch@rpj.uk.com

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

Jonathan Warbey Horwood & James DX 4102 Aylesbury jonathan.warbey@ horwoodjames.co.uk

Oxfordshire Tracy Norris-Evans Royds Withy King DX 4314 Oxford 1 tracy.norrisevans@roydswithyking.com Edward Pilling Royds Withy King DX 4314 Oxford 1 edward.pilling@roydswithyking.com Richard Coleman Royds Withy King DX 4314 Oxford 1 richard.coleman@roydswithyking.com 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 third edition of Biblio.

Once again we are extremely grateful to all those who have provided us with such interesting and informative articles, we really do appreciate your input and are always delighted to hear from any of our members with ideas for articles, notifications of events and announcements for the magazine. We will also be offering advertising space for job vacancies in the next magazine so please do get in touch for further details. The BB&O held its annual Past Presidents Lunch at Phyllis Court, Henley on Thames on 26th October the event was well attended and both the food and surroundings were outstanding. As part of the event photographs of past lunches and dinners as far back as 1951 were displayed and caused much

scrutiny, comment and enjoyment. We were advised by one Past President that the average attendance for a Dinner in 1960’s was over 300 and included after dinner entertainment including a magician called David Niven! Plans for next year include a “letters page” for the magazine, our first lecture in Milton Keynes for those working in the North of Buckinghamshire, the BB&O Awards Dinner to be held on Friday 15th June 2017 at the Spires Hotel, Oxford, and a combined AGM and summer event in July (date to be confirmed). Copy for the next magazine is due in by 31st January 2018. Amanda Jopson Administrator Amanda@bbolawsoc.org.uk

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NEWS

NEWS NEWS NEWS NEWS NEWS NEWS SAVE THE DATE BB&O Annual Awards Dinner 15th June 2018 Oxford Spires Hotel details to follow in due course.

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

Please tick the relevant category: I enclose a cheque for £50 (standard subscription)

I enclose a cheque for £15 (I was admitted on or after 1 March 2012)

I enclose a cheque for £10 (I have retired / I am not in private practice)

I have amended my postal/DX address:

My email address is as follows:

We are unable to issue receipts for subscription payments (they do not attract VAT) so please keep a copy of this notice and your cheque if necessary.

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ARTICLES

Life as a Trainee

y Training Co n tra c t at Parrott & Coales, Aylesbury, began in September 2015. This was, however, far from my first job. At the age of 14 I researched 'how to become a solicitor', therefore, when it came to picking my university subject I chose a less obvious Natural Sciences degree. The plan was always to convert, and after enjoying three fantastic years at Durham including wonderful fieldtrips exploring numerous rivers, glaciers and falling in peat bogs it was time to complete my GDL and LPC at The College of Law in Guildford. I was still working in the scientific field whilst studying part time which meant that at the age of 22 I was classed as a mature student. As is more common these days, law was therefore my second career and gaining legal experience was crucial to obtaining a much sought after training contract and of course that much needed commercial awareness. For me this came in the form of numerous roles as a legal secretary, assistant and paralegal in firms from high street to international size over a period of about 3 years. The appeal of training at a high street firm was the hands on nature of the work. My first seat was in dispute resolution. All my legal experience to date had involved contentious work and so I was very glad to be starting in this area. It was a general litigation seat covering, amongst other matters, contentious probate, contractual disputes, property litigation and cyberfraud. I found having some background in completing court forms

and relevant procedures was useful and I felt able to get running much quicker. Working for a partner and a solicitor and being in a small team meant I was fully involved. It was only a few months before I found myself at Aylesbury County Court conducting my first solo advocacy. Despite the practice in law school nothing could have prepared me for my first appearance in front of a judge but, despite the nerves, I did feel rather proud to be before him and ended up enjoying these cases. I also had the chance to prepare for hearings and sit behind Counsel including on appeals and also attend settlement negotiations. As my training firm was my fifth law firm I had assisted plenty of lawyers which allowed me to pick and choose the working styles I wanted to adopt. I had also seen plenty of trainees and how their training contract experiences and levels of supervision differed. Having come from open plan offices I found myself sharing an office with my first supervisor, a partner in the firm. I found this very beneficial and it really helped when, after every call he took, the partner summarised the matter, the conversation and the outcome. It also meant I was on hand to undertake the next step.

in reality I knew my heart lay in dispute resolution. However, my probate seat proved very valuable and I loved the increased interaction with clients. Finding out about people's lives was fascinating particularly when taking Will instructions as every family situation is different. It also led to some of my more memorable moments from my training. Being sent to pick up ashes from a crematorium was a first for me and, whilst I appreciated the respect shown, I spent a while waiting for the lady to make a gift bag (like the Rowan Atkinson scene from Love Actually). I quickly became used to being very pragmatic about death during this seat but assisting with house clearances and dealing with grieving relatives brought a human aspect to the matter of probate. The seat also dealt with powers of attorney and the Deputyship applications sometimes required in their absence and the complex area of testamentary capacity. I had thought I would find probate rather transactional but every situation is so different that there was plenty of variety.

It was during this seat that I learnt that, even after over 30 years' experience, you will come across new procedures and scenarios when the research skills you are taught will come in very handy. It was reassuring to see that you did not need to know absolutely everything off the top of your head and conducting research and analysing the law formed an important part of my training contract. These tasks were also a good way to work with colleagues from other departments.

After a brief seat in conveyancing focusing on leasehold extensions I was back in dispute resolution for qualification. I stayed on at the firm as an NQ before moving recently to Blake Morgan in Oxford. I now work on Commercial Litigation and Contentious Probate cases and am thoroughly enjoying it. The caveat of being a trainee has disappeared although there is still supervision and the opportunity to learn from a team with a range of expertise. The responsibility has stepped up, however the old phrases of transferable skills and nothing is ever wasted are true. Taking a longer route to qualified life allowed me time to choose my specialism and, I hope, be a well-rounded lawyer.

By the time I started my second seat, a year later, I was trying to keep an open mind but

Olivia Shenton-Taylor October 2017

YOUR SOCIETY NEEDS YOU! We have two vacancies on our Committee to represent the Berkshire area. If you would like to get involved please contact: Amanda@admin@bbolawsoc.org.uk in the first instance. THANK YOU

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aRTICLES

HMRC's new Trusts & Estates Register has gone live

he UK government has enacted Regulations to comply with the European Union’s Fourth Anti Money Laundering Directive. As part of the process for complying with these new regulations, a new online system has been established for registering trusts with HMRC, called the “Trust Registration Service”. The Trusts Register is intended to provide a single point of access to register and update trust records online.

As a conservative estimate, it will take in excess of 3 hours plus waiting time to collect information from trustees and beneficiaries to complete each registration. As practitioners have nothing else to do between now and 31 January 2018, it should just about be do-able! Jane Whitfield, Senior Solicitor at Barrett & Co Solicitors LLP

All trusts with UK income tax or capital gains tax liabilities must now be registered with HMRC via the Trust Registration Service, and penalties will be incurred if trustees fail to register their trusts by the deadlines imposed by HMRC. For new trusts, the deadline for registration is 5 October of the tax year after the trust is set up, or when it starts to make income or chargeable gains, if this is later. For this year only, HMRC has extended the deadline to 5 December 2017 because HMRC experienced so many problems in getting the service to go live. HMRC have confirmed that they will not impose any penalties on trustees or executors who apply for registration of their trusts or estate between 5 October 2017 and 5 December 2017, but that extension will operate in 2017 and not in any subsequent years. The details you will need to provide when applying for registration of a trust include the names, dates of birth, National Insurance numbers and UTRs for each of the trustees, the settlor (if alive), each adult beneficiary and any other person with influence or involvement with the trust (eg a protector), as well as full details of all assets in the trust, valued at the date of entry into the trust. You may also be asked for details of the deceased person if the trust is being established by a will or under the rules of intestacy. In addition to trusts, an obligation has now also been imposed on Executors/Administrators of what HMRC call “complex” estates to use the Trust Registration Service to register those estates with HMRC. In those cases, the details you will need to provide including the name, date of birth, National Insurance number and UTR for each personal representative, as well as for the deceased person. You will need to apply for registration twice if the deceased person has a complex estate and he or she left a will that creates a trust and the trust is likely to have a tax liability. For law firms who act as agents for clients’ tax affairs, the first stage is to set up an Agent Services Account which is quite simple and almost instantaneous for a sole practitioner but may be more problematic for a larger firm. Armed with the new sign-in details, it is possible to access the service and register a trust, although absolutely none of the information already held by HMRC has been used to populate the form, so if you have already registered a trust using Form 41G, none of the information will have migrated to the new system.

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ARTICLES

A stroll down memory lane...

Our cover photos this issue were taken at our 1954-55 dinner, which was held at the Grosvenor House Hotel, Caversham, near Reading. The President of the BB&O was Mr M B Parry-Jones

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training

BERKS, BUCKS & OXON INC. LAW SOCIETY Lecture Programme Winter/Spring 2017-18

Please state number of tickets required with names of those attending and whether members, trainees or nonmembers. Please also provide your email address. Please note that our Lectures are now being held at a variety of venues to enable easier access for all members. Lectures will now start at 6.30 p.m. with refreshments from 6 p.m.

Date:

Lecture:

20th November 2017 Contentious Wills & Probate

Lecturer Presentation by Freeths Reading Town Hall, Blagrave Street Reading RG1 1QH

Delegate name:

27th November 2017 Conveyancing Update

Richard Snape Holiday Inn High Wycombe

Delegate name:

15th January 2018 Land Registry Update Local Land Charges Programme, E Business Service, and Requisitions and how to avoid them.

Holiday Inn High Wycombe

Delegate name:

12th February 2018 Conveyancing Update Richard Snape with Presentation by Index Searches Delegate name:

19th March 2018 Conveyancing Update

Richard Snape Holiday Inn High Wycombe Holiday Inn High Wycombe

Delegate name:

Please note lecture notes will be sent to you in advance by email whenever possible, if not they will be available at the lecture. Add the total number of tickets required, Members, Trainees & non-Members, then calculate cost inc VAT £78.00 (inc VAT) for members and their trainees, or Total tickets required: £114.00 (inc VAT) for non-members £42.00 (inc VAT) for non-qualified support staff Please make cheques payable to the BB&O Inc Law Society Total amount due:

Mbrs/Trnees

Non-Mbrs

Return to: BB&O DX 45803 Woburn Sands or Shelton House, 4 High Street Woburn Sands MK17 8SD VAT Registration No 199879953. A Company Limited by Guarantee No 28807C

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ARTICLES

The Law Society Relationship Manager

am grateful to the Berks, Bucks & Oxfordshire Incorporated Law Society for giving me this opportunity to introduce myself to the members in the region, as the Law Society's Relationship Manager.

In my role, it is my responsibility to build closer relationships between individual members and firms, and the Law Society, so that we are better able to promote, support and represent the profession. In addition, I thrive to increase members' awareness of Law Society activities, and help forge partnerships and strategic alliances with key external stakeholders in order to add value to our members' businesses. There is a wide variety of work of undertaken by the Society on behalf of the membership and there are certainly a number of challenges and changes that the profession will face in the coming future. With that in mind, I would like to use this opportunity to shine a light on some of the important work that the Society is currently focussing on. In this edition, I have posed a few questions to Paul Wilson, Head of the Law Society's Regulatory Affairs unit: 1. What does your team do? I am the head of the regulatory affairs unit at the Law Society. My team represents the views of the profession on any issue relating to the regulation of solicitors. We cover education and training, regulatory processes, professional ethics, and professional indemnity insurance. My team works closely with the Regulatory Affairs Board, which sets the Law Society’s policy on regulatory matters. 2. What is your team currently working on? The profession is facing a significant amount of regulatory change at the moment, so things are busy! The biggest change is the SRA’s review of the handbook. The review started last year and the SRA has recently issued another handbook consultation, which the Society will be responding to. The SRA is aiming to slim down the handbook. Of course a shorter handbook would be a good thing, but only if this doesn’t come at the expense of clarity for practitioners. Of greater concern is the SRA proposal, as part of its handbook review, to allow solicitors to deliver unreserved legal services to the public from unregulated entities. This change would create two tiers of solicitors. If you see a solicitor at a regulated firm then you get the full range of regulatory protections. If you see a solicitor at an unregulated firm then you might not get the same level of professional indemnity insurance, or access to the compensation fund. The Law Society is opposed to this change, as it makes accessing legal services more confusing for clients and removes valuable protections.

by Bhavni Fowler

The SRA is also consulting on requiring firms to publish price and service information on their websites for some areas of law, for example conveyancing. The Law Society will be responding to the consultation to highlight the risks of imposing a one-size-fits-all solution on the profession. Solicitors already do a tremendous amount of work to ensure that clients understand what they will pay, and what they can expect for their money. Helping clients to make informed choice isn't just about more information on websites, it's about providing the right information at the right time. The last sizeable change that I’ll mention here is the Solicitors Qualifying Exam. The SRA has decided to introduce a two-stage examination that every new entrant to the profession will need to pass from 2020 onwards. Throughout the consultation process the Law Society has emphasised the importance of maintaining high standards and of ensuring that a diverse mix of applicants can become a solicitor.

3. What is on the horizon for your team? My team handles the relationship with the Solicitors Disciplinary Tribunal. The tribunal currently requires cases to be proved beyond reasonable doubt, but some have recently questioned whether this standard of proof should change, and this policy may be reviewed in the future. The Law Society’s existing position is that a case before the tribunal should be proved beyond reasonable doubt, as a solicitor can lose their livelihood if found guilty. There is an ‘inequality of arms’ between the SRA prosecuting a case and an individual solicitor, so we don’t think it is appropriate to lower the standard. We are interested in hearing views directly from the profession on this topic, and we have published a discussion paper1 on this. 4. How can members engage with you on these topics? My team are always happy to be invited along to meetings of local law societies, to hear your thoughts about regulatory developments. If you want to get in touch directly, you can email us at regulation@ lawsociety.org.uk. If you would like further information on the activities mentioned above, or any other areas, please do not hesitate in contacting me. Bhavni Fowler Relationship Manager - South East The Law Society Email: bhavni.fowler@lawsociety.org.uk Tel - 07773 254 543

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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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Surname: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Member of the Law Society Notary Public

Signed: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Signed: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (If you do not know anyone to nominate you, please return and BB&O will check and nominate via County Reps)

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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ADVERTORIAL

Listening to clients is good for business – and so is making them listen to you Professions are working in new ways and at the speed of light. Yet the court system is still adversarial, slow, remote and more expensive than ever. Attempts to control costs are tinkering at the edges of a dysfunctional system. The closure of 84 courts could cause a standstill. No one knows what will result from the fixed costs regime. Mary Banham-Hall, LLB FMCA Mediator Solicitor

s an experienced mediator, I meet hundreds of people who Are litigating. This is what they say:-

• It’s taken (1-2-3-4) years; It is ruining my life • It’s cost – (£4k 12k 50k 100k) I’m desperate for it to stop • It’s cost more than it’s worth We live in an instant world.

If we work in a client-centred way and create a faster, more affordable and user-friendly D.R. system we can restore public faith in what we do and re-grow our markets. This won’t happen by accident and it is up to us. The Psychology and Emotions of Disputes are Central to Client Satisfaction Both parties think the other side is mad/bad/a demon/a fool, and the judge will ‘Tell

LEFT BRAIN - LITIGATION

him.’ Both believe they’re right and the evidence and law support their case. Traditional adversarial rituals escalate their conflict - then suddenly your client is fed-up. It isn’t the same experience as buying a car or going on holiday. The secret to success is to stop it before this happens. Lawyers and Mediators Working in Parallel to Create Good Value Most disputes have substantial emotional and psychological elements. The first stage of legal work involves establishing the facts, then applying the law to formulate a case – and sifting out emotional factors. This usually results in opposing beliefs about the facts and the law. At first the client likes the feeling of being right and hearing you argue for him and wants to win, but soon he is realises

it isn’t simple, certain, fast or cheap. The lawyer must know best and try to get mediation underway, even if the client wants to fight. Lawyers know what lies ahead and must explain the Proportionality Rule repeatedly so clients really get it. Time and again after successful mediation we get feedback from clients – mostly positive or berating us for not somehow mediating sooner and saving them the stress of their experience. In one instance someone said “You must tell lawyers what you do, this should never have happened! Why don’t you work together?” One of the biggest flaws in the resolution of disputes is its side-lining of emotional conflict drivers –which is often what really matters to clients. A parallel triage deals with this:

RIGHT BRAIN - MEDIATION

Logical, factual, unemotional, the rational reasoning brain. Emotional and psychological motivators and conflict drivers are irrelevant, and are filtered out.

Engages with emotions and feelings, intuitive and instinctive, offering a more holistic approach to conflicted parties. Starts where people are.

Focus on factual matrix – collection of evidence and statement of claim and counter claim. Case evaluation, advice on risk/benefit. Emotional feelings and beliefs are sifted out as irrelevant.

Clients feel heard and understood so are better able to take a more rational approach. Emotionally acceptable solutions and outcomes a court cannot order can give higher chances of agreement.

Parties seek vindication with closed mind: “I’m right, you’re wrong, this is my evidence and the judge will agree with me”. The litigator suppresses and ignores emotions, reason is all – but it has to be legal reason relevant to the case.

Parties seeking vindication understand each other’s perspectives better in mediation and are better able to take interests-based problem-solving approach. Deals with underlying conflict drivers that disputants are in denial over and seek to translate into valid legal argument.

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The Law is a left-brain operation. We need to engage right-brain orientated mediation too, so complementary tools are used to resolve disputes holistically and value can be demonstrated. Cases should move between mediators and lawyers at set points, ideally after a defence is filed and certainly once total costs reach about 20% of case value - because after that you’re likely to have a grumpy client whatever you do. Stop the madness – tell clients what they must know, not what they want to hear Lawyers and judges have appeared in a bad light in too many cases. Various proceedings lumbered into the insane zone and became

ADVERTORIAL

existential for clients; some face losing everything:

• The dispute between neighbours over £4,000 of drain repairs in a garden- complicated with some Local Authority involvement. Costs - £300,000. • The divorce case where a couple were fighting over £3m of assets and the costs were £930,000. There could not have been that much at issue between them. • The dispute about the sale of an eventing horse for £18,000 – the buyer tried unsuccessfully to revoke the contract and has to pay the seller’s costs at £240,000 – a charge has been granted over their house to ensure they pay up • The dispute between neighbours that went to the Supreme Court - over whether there was a right of way over a muddy track – costs £750,000.

These tragic cases are circulated in the media and make people

mistrustful of lawyers, which is bad for business. Other professions are adjusting how they work. Accountants will lose income from preparing company accounts and filing tax returns. Computer packages will enable company book-keepers to maintain company books in real time in a format acceptable to HMRC, which will generate a tax return automatically. For many small businesses this will cut out the accountant’s bill. Medical treatment is in a state of permanent revolution. If a patient consults a doctor suspecting he has heart problems – but it is a stomach ulcer – he will get the correct diagnosis and modern best treatment. If you translate this into our interface with our clients – it’s obvious that in the examples given, the system should have checks that stop the madness before costs become

RESOLVING DISPUTES Mediation is fast becoming the preferred way of resolving most family and civil disputes.

Why choose FOCUS MEDIATION? Our specialist family mediators are able to offer mediation services from our offices in Milton Keynes, Bedford, Hemel Hempstead, London Euston, Northampton, Oxford, Potters Bar, St Albans and Watford. Our specialist civil team of Focus mediators can help. We have mediators from a range of professions, so we can offer a mediator from the right background with the right skill-set for your case.

• If you are divorcing or separating... • If you need to avoid litigation... • If you need to settle proceedings... ...then Focus mediators can help. If you have a civil dispute with court proceedings looming in relation to:

so disproportionate; otherwise we are delivering the medicine that is killing our patient, which will in turn finish off the public’s appetite for what we do. It’s up to us to stop it. If we make the Proportionality Rule work it can save us So come on – in that filing cabinet will be some clients who really don’t want to be there! If the joint costs are close to 20% of the value of the case it’s a loser. Give us a call on 01908 231132 or email info@ focus-mediation,co.uk and let us help you to help them. They’ll be glad when it’s over and you’ll have helped them sort it, they may well send you some more work. Visit our website: www.focus-mediation.co.uk

Mediation can bring an out-break of sanity to most civil and family disputes. All that is needed is a wish from both parties to end their dispute. In mediation the whole focus is on trying to understand, agree and sort it out. In litigation the focus is arguments as to why you are right – which generates arguments as to why you are wrong. End it now...

Call us on 01908 231132 Or Email us at: info@focus-mediation.co.uk ... to get professional impartial advice.

• Your business... • Workplace or employment... • Any commercial or contractual dispute... • Probate or power of attorney trouble... • Land, property, leases or building contracts... ...then Focus mediators can help

Focus Mediation Ltd., Gloucester House, 399 Silbury Boulevard, Milton Keynes, Bucks MK9 2AH

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charities

New report reveals growing demand for flexible philanthropic giving structures OCF Trustees at OxHop, March 2017

Investing funds into a stable charitable structure that is under the auspices of an experienced provider gives the individual the time and headspace to plan their longterm giving strategy in the context of their wider life planning. The community foundation can share its knowledge about the needs of the area they are looking to support, help the client decide which causes are closest to their hearts, and assist in identifying the best way to spend their philanthropic funds. Community foundations typically work in close collaboration with a client’s financial planner or solicitor during this process. All the rewards, without the hassle

onor-advised funds are giving mechanisms that allow clients the time and headspace to plan their philanthropy according to their own interests and priorities, without the pressures associated with setting up a private foundation. A new report reveals that donor-advised funds are on the rise in the UK – and that professional advisors need to be informed about their clients’ options.

The report was published jointly by the Charities Aid Foundation (CAF) and UK Community Foundations, and is the first to take a close look at donor-advised giving in the UK. Originating in the US, a donor-advised fund, or “DAF”, allows a client to set up a charitable fund today, invest the assets, and then donate funds to causes they care about whenever they want

to. Provided by organisations such as CAF or a client’s local community foundation, a DAF is a streamlined and costeffective alternative to creating a charitable trust or foundation. The report finds that in 2015–16, contributions into DAFs reached over £370 million in the UK, and grants made from DAFs grew to almost £280 million. Based on historic growth, funds invested in DAFs are projected to rise to at least £1 billion by 2025. Thoughtful, strategic philanthropy A client’s choice to set up a DAF is often driven by timing and circumstances; for example, many community foundations work with individuals who have received a windfall through inheritance or the sale of a business, but who have little experience or confidence in the world of philanthropy.

As well as reassuring givers and sharing options with them, DAF providers make the governance and stewardship of charitable funds simple, removing the need to set up a Board of Trustees or report to the Charity Commission, all of which is done by the provider, often in a very cost-effective way. This allows clients to focus on enjoying their philanthropy and becoming involved with the causes they support in more meaningful ways. In this report, CAF tells of how the majority of its private clients also become charity trustees, and case studies from community foundations show that once clients have identified a strong giving strategy, many will make a rewarding second ‘career’ from their philanthropy. Supporting clients in this endeavour will mean professional advisors can better serve their lifetime needs. The practicalities DAFs can be created using many types of asset; for example,

community foundations can accept gifts of shares, property, and even artwork or collectables. The community foundation will work with the client’s advisor to ensure the gift is tax efficient and any match-funding and Gift Aid is claimed. Assets are typically invested in a community foundation’s endowment fund and ringfenced for the desired activities of the donor, as long as these are charitable. Over time, the value of and income from the assets, when pooled with those of other fundholders, can significantly exceed the original capital. With the UK’s population of high-net worth individuals predicted to grow by 13% by 2020, now is the time for professional advisors to equip themselves with knowledge for clients from this report, and beyond.

The UKCF/CAF report can be downloaded from www. ukcommunityfoundations.org/ philanthropy-comes-age. Are donor-advised funds part of your ‘philanthropy toolkit’? To find out more, contact your local community foundation: • Berkshire www.berkshirecf.org • Buckinghamshire www. heartofbucks.org • Milton Keynes www. mkcommunityfoundation.co.uk • Oxfordshire www.oxfordshire. org

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CHARITIES

Financial concerns limit people’s inheritance expectations, but not their charitable spirit parents to leave them everything they own when they pass away and fewer still now factor inheritance into their long-term financial planning.

lthough British people worry about their finances, the majority no longer expect to receive a considerable amount of future inheritance and are willing for their parents to factor in other beneficiaries into their Will, including good causes. These findings - from a recent study1 by Remember A Charity

- highlight the importance for solicitors of making clients aware of the option of including a gift to charity in their Will, once they have taken care of family and friends. Based on twin surveys of over 2,000 adults (half aged 30-45 and the other aged 65+), the study explored people’s attitudes and expectations around inheritance. It found that while both generations worry about their finances, the older generation is more concerned about their children’s futures than their own. They want to be able to take care of their children and are concerned about escalated living costs and other financial uncertainty. The under-45s expressed their worries about their own financial future, with the rising cost of living, social care, property prices and Brexit all cited as factors that are reducing their expectations around what they might inherit in the future. As a result, only a third of adults said they expect their

While both generations were asked their views on what they want to do with their estate or inheritance and whether they would be happy for any potential inheritance to be donated to good causes, the under-45s were shown to have a particularly strong social conscience. Rob Cope, Director of Remember A Charity, says: “This suggests a shift in attitudes between generations. The older generation is enthused about the concept of leaving a gift, but remains understandably anxious about the need to take care of their families. “Meanwhile, their children’s generation is equally concerned about finances, but no longer expects to receive a sizeable inheritance. They have a strong social and moral conscience and, although most hope to be included in their parents’ Wills, the main concern is for their parents to do what they want with their estate, making provisions for all those things that matter to them.” When it comes to charitable donations, over half of under-45s are happy for their parents to donate part of their estate to good causes. One in 10 claim that they have already actively encouraged their parents to use their Will to do social good and one in 20 went so far as to say that they would be happy for their parents to leave their full estate to good causes. Cope adds: “Despite the spiralling costs of living, social care and economic uncertainty around Brexit, people have a strong social conscience and many even encourage their

parents to use their estate to make the world a better place. “We would always encourage people to consider their family and friends first, but it’s great to hear that people seem to understand that they can use their Will both to look after their loved ones and their favourite charities. “With charities feeling the double-edged sword of continued funding cuts and ever increasing demands for services, the support of the legal profession has never been more important.” Backed by Government and the Law Society, Remember A Charity is now launching its annual outreach programme

working to encourage solicitors and Will-writers to highlight the opportunity of including a charitable gift to clients. The campaign is calling on solicitors and Will-writers to join its existing network of over 1,100 Campaign Supporters and commit to share information with clients about legacy giving. To find out more or join the existing network of 1,100 campaign supporters visit www. rememberacharity.org.uk. Survey carried out by Censuswide, 14-18 July 2017. Sample base 1,014 people aged 30-45 and 1,008 people aged 65+.

Final rules for new regime for becoming a solicitor show progress but still lack crucial clarity

ore detail is still needed about the new super exam for solicitors if the profession’s confidence is to be won, the Law Society of England and Wales said today. Responding to an announcement by the Solicitors Regulation Authority (SRA) that it has approved the final draft regulations which will bring the Solicitors Qualifying Examination (SQE) into force, the Law Society repeated its warning that not enough was known about the rules underpinning the framework. Law Society President Joe Egan said: "Our consultation response in July this year was critical of the level of detail provided in the

SRA’s draft regulations. We are disappointed these final draft regulations add little to anyone’s knowledge of the new regime. “It is essential the work undertaken by trainee solicitors is rigorous enough to prepare them for a career in law but, despite our recommendations, the SRA has said work experience should only provide the candidate with the opportunity to develop some or all of the skills required.” The Law Society welcomes the fact the SRA has listened to our concerns in relation to signing-off work experience carried out by trainees. The initial proposals merely said that the experience could be signed off by a compliance officer for legal practice

(COLP) solicitor within the firm, or an external solicitor. The new proposals now require a solicitor from outside the organisation to sign off the experience based on a thorough review and feedback, having full details of the period of work experience. We are glad to see that these recommendations have been incorporated. In order for these final draft regulations to be properly considered by the professions’ over-arching regulator, the Legal Services Board, they must be accompanied by a comprehensive plan on how the SQE will be assessed. Until this detailed plan is made available, we believe it would be premature to adopt the new regulations.

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expert witness

Bending Over Backwards

Expert Witnesses confer and convene with legal high fliers on costs and other awkward questions Elizabeth Robson Taylor and Phillip Taylor MBE of Richmond Green Chambers review the highlights of the 2017 EWI conference.

ou always know it’s autumn when the conference season kicks off. And it is usually the Conference of the Expert Witness Institute (EWI) that starts it in considerable style. This year, on 21st September 2017, over 100 EWI members made their annual pilgrimage, as it were, to their usual conference venue of Church House, looking customarily impressive in its leafy, campus-like location in Westminster, not far from Westminster Abbey and Parliament. As in previous years, the Conference was notable for its roster of distinguished speakers, from Lord Justice Rupert Jackson, who gave the keynote speech -- to the inaugural address delivered by Martin Spencer QC (now Mr Justice Spencer) who, in addition to his role as a High Court judge, has assumed the chairmanship of the EWI. Presided over by EWI Governor and Conference Chair, Amanda Stevens, this is a gathering where lawyers are well placed to garner important insights into the role of the expert witness in court -- and where expert witnesses can meet, greet and compare notes with each other, as well as with the lawyers whom they might possibly advise, or for whom they might well receive instructions. Expecting an especially memorable conference this last year, the delegates were not disappointed. The Keynote Lawyers of course will need no reminder that it was Jackson who, in 2009, accepted the monumental task of constructing the famed and often controversial ‘Jackson Reforms’ on the vexed question of costs, implemented finally in 2013. His keynote speech referred throughout to his latest supplemental report published on 31st July 2017. The title -- ‘Review of Civil Litigation Costs: Supplemental Report Fixed Recoverable Costs’ -- is self-explanatory. Interviewed just prior to his keynote address, Jackson mentioned that his reforms have been the subject of some negative comment. The criticisms in his original report were aimed primarily at legal fees of the exorbitant, outrageous and disproportionate variety. Many have argued of course that what is termed disproportionate by the consumer of legal services is not necessarily considered so by the legal team which provides them. Controversies on Costs Herein lie the seeds of controversy, not surprisingly, which have been germinating

for some time. Meanwhile -- especially transatlantically --- the matter of ‘pricing’ legal services has become almost a separate discipline, presided over by consultants – not necessarily lawyers -- who claim special expertise in this area. It’s equally unsurprising that these and related developments have pointed up the need once again, for Jackson’s latest Report. Affable and erudite -- note that he has been editor-in-chief of The White Book since 2010 -- Jackson explored more than a few key areas of scrutiny on fixed recoverable costs. As expert witnesses can and do provide testimony in court which can turn the course of a case one way or another, they do expect to get paid – proportionately and preferably on time. Judging by certain searching questions from members of the audience, issues of costs at this conference began to emerge as a major concern. Jackson therefore referred to the causes of excessive costs identified in his initial costs review. While most of his recommendations have been, in his words, ‘bedded in’ following their implementation in 2013, there are six remaining that haven’t -- and in which apparently little or no progress has been made. In response to the obvious need for a further review, the Lord Chief Justice and the Master of the Rolls commissioned Jackson in November 2016 to develop proposals for extending the principle of FRC – Fixed Recoverable Costs. An EWI First Judging from Jackson’s additional remarks just prior to the speech, the EWI members attending this conference were among the first to have sight of – or at least detailed information about – the latest recommendations in his supplemental report. As the Report was first published in July of 2017, government ministers who were to be its first recipients, were all away on their hols and therefore not available for comment. However, by the time this article sees the light of day, they will indeed have seen the Report, one hopes, and noted its contents. But considered in the light of experience, it is not even remotely possible that the newly published recommendations will be implemented before Jackson’s retirement in March 2018. His wide-ranging speech to Conference, however, covered many more issues, including matters such as guideline hourly rates… ‘not satisfactorily controlled’, and inadequate numbers of staff and IT facilities in the civil courts. He pointed a critical finger at other factors that bump up costs: ‘time consuming court procedures’ are one example -- and ‘the complexity of the law’ another, in certain areas

of litigation. The obvious remedy, which again is hardly likely to come to pass all that soon, is simplification, which would certainly benefit bemused members of the public and the growing numbers of litigants in person. It would seem, however, that his criticisms of ‘too high’ court fees, have been met with indifference. ‘I might as well bleat at the sea like King Canute,’ he said. ‘Instead of being reduced, they’ve gone up. I’ve made harsh comments about that, but no one has taken any notice!’ [Sorry, we can’t help mentioning here that King Canute gets a bad press on this one. What he was really trying to do was convince his sycophantic courtiers that even he, with all his earthly power, couldn’t control the sea -- any more than anyone can turn back the rising tide of new and ever-evolving legislation, as well as burgeoning costs.] Turning his attention to matters of medical negligence -- ‘a very difficult subject’ – Jackson expressed the view that most such cases worth up to £100,000 were not suitable either for the fast track, or even the new ‘intermediate’ track which he has recently proposed for other matters. However, other medical negligence claims of under £25,000 could -- or might -- be dealt with by a ‘bespoke process’ and a grid of fixed costs. The Executive Summary As for the Supplemental Report itself, ‘read my Executive Summary,’ is Jackson’s best advice – and a good suggestion too, as it functions as a precis and guide to the main document, while reiterating crucial points. The first of these is a reminder that ‘In England and Wales, the winning party is entitled to receive costs from the losing party.’ Now there’s a grim reality that many overseas/transatlantic clients (you’ve probably got at least some of those) just simply don’t get. In their view it is: (a) incomprehensible; (b) unbelievable and (c) grossly and manifestly unfair. A Flawed Recipe The consensus here is that each side should jolly well pay its own costs, thank you very much – which is not out of line with Jackson’s considered opinion that this winner-takes-all policy is quite simply ‘a recipe for runaway costs.’ Now though, it appears that the ‘recipe’ isn’t going to be changed in a large hurry. Jackson nonetheless retains his staunch belief in fixed recoverable costs, stating unequivocally that ‘the only way to control costs effectively is to do so in advance.’ Agreed fees up-front…or in advance -- or whichever way you want to put it -- should in most circumstances, be the order of the day.

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expert witness

Law Society intervention in Court of Appeal case supports children in family courts

he Court of Appeal has today decided that the Legal Aid Agency - formally the Legal Service Commission (LSC) - was wrong to refuse to pay in full from the legal aid budget for an expert witness report ordered for a child by the family court. The case followed the LSC's refusal to pay more than one-third of an expert's fees because it believed that the parents should have been required to pay the other two-thirds. The Law Society intervened in the case of JG v The Lord Chancellor because it has important implications for solicitors instructing experts in these cases. Solicitors need to be clear from the start who will be paying for the expert they instruct. The case also raised a 'question of general importance' about the lawfulness of the LSC's actions. The Court of Appeal commented today that: 'Nobody can be in any doubt that the general question encapsulated a real issue of very considerable importance in private law proceedings

relating to children in the wake of the severe restriction on public funding for those involved in such proceedings.' The Lord Chancellor, for the LSC, argued that parents who are not legally aided should pay their share of the expert's fee. The Law Society argued that this could not apply in this case because the expert was instructed by the child alone. As the parents were not seeking to present expert evidence, the issue of sharing the costs did not arise. The court accepted the Law Society's argument that where an expert's report is sought by the child alone, it will be legitimate for the legal aid budget to bear the full cost. Moreover, the court went on to say that 'it may not be all that infrequent' that this is the case. The judgment means that in future the Legal Aid Agency must look at the facts of a specific case to decide whether it should pay the fees in full. It also means that where unrepresented parents

cannot afford to commission expert evidence but the court and the child's guardian considers such evidence necessary, it may still be appropriate for the full costs to be borne by the child through their legal aid certificate. The Court of Appeal went on to reject the Lord Chancellor's argument that there is any 'normal rule' that costs should be apportioned equally even where a single joint expert is instructed by all the parties. Law Society president Nicholas Fluck said: 'The family court has to be able to obtain the expert evidence it needs to help it decide a child's future without being blocked by the legal aid authorities, otherwise the court and the child are left without a report that the judge has said is needed. The Law Society intervened in this case to break that deadlock. 'The LSC and Lord Chancellor's position has left many family cases at an impasse where expert evidence that the Court has deemed necessary is not available. This situation could not be allowed to continue and we welcome the Court of Appeal's decision.'

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EXPERT WITNESS

Do you need an expert in hot tubs?

illy question, I know, but you more alert litigators will recognise that I’m talking about concurrent evidence. Now, you may think “hottubbing” means having a couple of experts in a Jacuzzi, or being boiled alive in a missionary pot. Not so; but either way, it’s likely to make your experts sweat unless they are very well prepared. So what’s this concurrent evidence all about? It is an arrangement where at trial two (or more) experts are put into the witness box together – if there’s room – and where the judge chairs a discussion on their expertise relevant to the matter in hand. Counsel for claimant and for defendant can put questions to either expert, so can the judge, and the experts can even ask questions of each other. Scary, eh? Well, it can be scary for the uninitiated, but as with so many other considerations, it’s a matter of choosing your experts with care – horses for courses. If the subject matter of your dispute is so obtuse that there are only three or four people in the UK with the expertise to address it, you may be stuck with an impressive boffin who has never been in a courtroom before, and your case will be weakened unless you put much effort into training him in what to expect. But for most purposes, you would be wise to choose an expert who knows the subject but who also has the training and experience to follow what is in effect a second profession, as an expert. It would be a tragedy, after all the effort you have put into a case, for your expert on the subject, who is not an expert in litigation, to fatally weaken your case by his performance in the witness box. And this is the case, a fortiori, with the hot tub. Why is it different? There are two differences, which are said to have advantages in costs saving. The first is that there is a costs saving because the length of trial is shortened. The court can get to the real issues quickly, instead of them emerging gradually by cross-examination and re-examination of the experts (evidence in chief these days, of course, is little more than the expert confirming that they have written the report in the bundle). Of course, against that must be measured the extra reading time needed for the judge to be au fait with the issues. And a judge may not be an expert on the subject matter, and so may not ask questions to the depth expected of an arbitrator, who would have been chosen for their expertise. So it’s up to the judge to order concurrent evidence, or not, as he feels would be appropriate. The second is that the process tests the experts’ opinions very thoroughly. And there is no doubt a hidden cost saving there, since experts who know they face the rigours of the hot tub are more likely to form their opinions carefully, to advise those instructing them of the weaknesses of the case at a much earlier stage, and to hold their joint discussions more rigorously. So, with early decisions not to proceed, Part 36 offers, mediation, and other methods of settling cases, one can expect that more cases will be concluded long before the expense of a hearing has to be faced. And such cases will

never feature in the statistics. So we can expect that the hot tub will be “flushed out” long before it is used! I have been in the hot tub, and it worked very well. My opponent was someone I already knew, and we developed an excellent working relationship during our discussion between experts. At the hearing, our concurrent evidence took only a few hours, and we were able to clarify the issues very effectively. Whilst it is the case that hot tubbing is not yet the norm, I am seeing directions orders where it is to be expected there will be concurrent evidence if the matter proceeds to a full hearing. So I am looking forward to more frequent hot baths. And I would really appreciate the opportunity to help your client in that missionary pot! Biog: Chris Makin was one of the first 30 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness. He is also an accredited civil & commercial mediator and an accredited expert determiner. He has given expert evidence at least 100 times and worked on a vast range of cases over the last 30 years. For CV, war stories and much more, go to his newly relaunched www.chrismakin.co.uk - with videos!

odayâ&#x20AC;&#x2122;s announcement by high street bank HSBC that they will increase the range of

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Fraudulent bank calls to law firms – how to protect yourself

his pernicious form of fraud is on the increase. It’s not a new phenomenon but it is one of a variety of methods criminals are using successfully. So how does the scam operate? Firstly, you need to understand the criminal slang - phishing, vishing, smishing and spoofing. Phishing. This is when you receive a fraudulent email alerting you to a problem. The email looks genuine and may lead you to a website that looks exactly like your bank’s website. If in any doubt, just don’t click on the link. Vishing. Vishing or voice-phishing, occurs when you receive a telephone call from someone purporting to be from your bank. The aim is to obtain confidential details, passwords or to convince you to make a monetary transfer. The criminals may claim to be from your bank’s Fraud department. They may tell you there is a problem with your account and ask you to confirm some payments.

Smishing. Smishing, or SMS-phishing is the mobile phone equivalent of vishing. The criminals use it less against law firms, but it does happen. The method encourages you to ring a number or follow a link. This will then request password and account information. Spoofing. This is where it gets really tricky. In essence, the criminals imitate genuine telephone numbers or email addresses to gain your confidence. You will see a telephone number that you recognise as being your bank in your caller display. Protect your firm against phone scams • Never give out banking passwords or security codes to anyone over the phone. • Do not trust your phone’s caller display to identify a caller accurately. • Check callers by phoning the bank yourself using the known number. • Remember that the bank will never call you to ask you to transfer money to a so-called safe account. • Remember that the bank will never ask you for banking passwords or user numbers.

Protect your firm against email scams • Provide a documented process for all employees to follow. • This should ensure email requests to set up or amend payment details are verified as genuine. • Use known contact details other than email to make these checks and apply the same rigour to both internal and external emails. • Consider how you communicate with individual clients who are sending funds, so they can be sure they are sending their money to the correct account. • Consider encrypting emails and providing clear, initial instructions about how payment details will be provided or amended. • Payment methods and bank account details should be agreed at the outset of transactions. And finally, protect all PCs with quality anti-virus software and ensure it is updated regularly. Upgrade all operating systems and software to the latest versions the minute they become available. Mike O’Donnell, LawWare Limited.

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That Sinking Feeling

or homeowners, the word ‘subsidence’ brings a cold shiver to most. The thought of such an occurrence happening near to your home is an uninvited prospect and one that conjures up images of hefty bills, insurance issues and massive repair works. Having seen various headlines and images of houses displaying large cracks, or even sinkholes appearing in and around residential areas, you would like to think that consumers are mindful of the potential hazards when purchasing a new home, however it isn’t always front of mind for those on the hunt for their ideal property. For solicitors, undertaking appropriate checks into a property’s risk of ground stability, as part of the conveyancing process, will offer insight or assurances before any purchase is completed. Unless there are known examples of ground stability hazards in an area, it isn’t always something that clients have considered when buying a property, so being able to deliver intelligence related to any risk is paramount. But, what causes ground stability or subsidence, and how prevalent is it really? There are many reasons why a property could be at risk from subsidence. This includes naturally-occurring hazards based on land’s underlying geology, through to a range of man-made, historical factors based on activities that may have occurred on the land in the past. Former mining activity is one contributor. Old mine shafts and tunnels that were created as part of mining activities have the potential to collapse and damage properties above them. Disturbed ground and spoil tips can also be prone to settlement, which could cause structural damage to buildings. In fact, according to data* compiled by Landmark Information for Property Week, it found that almost one-third of residential properties in England, Scotland and Wales are considered to be at some form of risk as a result of historic mining activities. It estimated that 33% of homes are located within 250m of land that might have previously been used for coalmining and

activities such as quarrying of sand, clay and gravel pits. The data research also suggested that in 95 Local Authority areas, the proportion of housing stock at risk is 50% or higher and in 34 areas 100% of the housing stock is at risk from former coalmining activity. This includes authority areas such as Bolton Metropolitan Borough Council, Barnsley Metropolitan Borough Council, City of Newcastle upon Tyne Council and Rotherham Metropolitan Borough Council to name a few. Other forms of ground stability hazards come from former Brine Extraction and Salt Mining. This type of mining leaves large cavities in the ground which could collapse and cause problems for properties built in the area. Landfill sites and infilled ground, which is indicated from historical mapping such as ponds, drains and small pits, have the potential to create cause for concern. Infilled land can be susceptible to settling so any houses that have been built on these areas could experience stability problems and subsidence resulting in damage to the property. As for natural ground stability hazards, some areas of land could be prone to ground instability and subsidence as a result of the natural underlying geology. Examples include areas of the UK at a higher risk of landslides or where sink holes could occur due to the make-up of the underlying soils. For conveyancers, help is at hand in being able to confidently research all known risks. The new Homecheck Mining and Subsidence report is one example that not only provides details on any potential mining, subsidence or ground stability hazards, but uniquely has the added advantage of including details of insurance claims from Crawford & Company, which are a result of damage caused by subsidence to nearby properties.

have been handled by the Coal Authority, rather than going through an insurer. All of this provides a very clear picture on potential hazards and ‘real life’ evidence of those near to a given address, enabling further investigations to take place if they are concerned by the findings. To make interpretation of the report easier for both solicitors and homebuyers, it also includes a plain English professional opinion for each type of hazard or insurance claims identified, along with clear next steps. All of this is written in a way that makes it straightforward for solicitors to extract and report back to the client in their own reporting style. Ultimately, when it comes down to homebuying, subsidence, mining risk or sinkholes isn’t at the top of everyone’s consideration list. It is therefore down to solicitors to be able to research and advise on any potential hazards before the sale completes to ensure clients are fully briefed, and full and proper due diligence has taken place. When you talk to people about such risks, they often don’t realise the prevalence and regional variances in ground hazards across the country. And, with a report like Homecheck Mining and Subsidence costing just £20 + VAT, it’s a small fee to pay in the grand scale of home buying, yet provides the analysis and interpretation that offers wider peace of mind.

Reassuringly, Crawford and Company is the world’s largest independent provider of claims management solutions to insurance companies and self-insured entities. These claims could be evidence of hazards that have been identified elsewhere in the report. It includes the details of successful Coal Mining Subsidence Damage Claims that

Tony Rollason, Regional Manager, Landmark Information www.landmark.co.uk

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Book Reviews by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, 'The Barrister' Of course, a number of Scalia’s views are not shared by that many people in the United Kingdom. He is described by Dorsen in the following way as “a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammelled gun rights, political expenditures, and the imposition of the death penalty”. In fact, quite an exhaustive list of all the most controversial issues of our contemporary times… and not at all “liberal”! THE UNEXPECTED SCALIA A Conservative Justice’s Liberal Opinions By David M Dorsen ISBN: 978 1 10718 410 7 CAMBRIDGE UNIVERSITY PRESS www.cambridge.org

CLEAR AND CRISP WITH THE BIOGRAPHICAL GRAVITAS EXPECTED OF SUCH AN IMPORTANT LEGAL FIGURE WHO WASN’T REALLY 'A LIBERAL' This is a particularly fascinating insight into the life of an important legal figure in the USA, Justice Antonin Scalia. We were privileged to meet Scalia and his wife, Maureen, in London not long before his death in 2016. One never forgets meeting certain people and we shall remember our encounter with Scalia as a man as well as his position as an enduring and substantial figure in American jurisprudence. It is very clear that Antonin Scalia was one of “the most important, outspoken, and controversial Justices in the past century”. This touching and detailed biography is long overdue. David Dorsen’s meticulous work describes Scalia’s endorsements of “originalism”, which means the requirement to decide cases as they would have been decided in 1789, and “textualism”, which limits judges in what they could consider when interpreting text, thus causing major changes in the way the Supreme Court decides cases. Dorsen’s description of what “a liberal” is, contained in the introduction, is most useful although readers will arrive at their own opinions!

What we found refreshing is that Scalia often “followed where his doctrine would take him, leading him to write many liberal opinions” according to Dorsen. The key to Scalia’s approach is why did he write so many liberal opinions. His answer was that “his legal philosophy compelled him to do so”, otherwise as he said, “he would have been inconsistent or worse”. And that is the answer in the book! As a close friend of Scalia, David Dorsen is placed in a very strong position to explain what he describes as “the flawed judicial philosophy of one of the most important Supreme Court Justices of the past century”. But it does, of course depend on your own point of view which is why this biography is such an important publication on both sides of the Atlantic. It was a privilege to meet him. One always has some anecdotes which are quite personal when meeting the opinion-formers and deciders of our time, and Scalia was no exception. We were not expecting to like him very much but we found him charming. And, as with all biographies, it is so useful to read about important figures like Scalia because there is so much that one finds out. The question I asked him (I couldn’t resist it) was on American Realism. “What”, I said “did you have for breakfast this morning?” “Boiled eggs”, he replied, with his wife enthusiastically agreeing, “and they were very nice”. And, as you can guess, he was charming throughout and knew exactly why I had asked the question… I wonder how often he had been asked that before, but I didn’t get an answer. So American Realism is alive and well, and we do know what judges have for their breakfast

and that it doesn’t cloud their judicial thinking. Thank you- we did not agree with all his views but we have lost a towering American legal figure, but we do have this excellent biography from David Dorsen to remember him. The book was published on 2nd February 2017.

JUDICIAL COLLEGE GUIDELINES FOR THE ASSESSMENT OF GENERAL DAMAGES IN PERSONAL INJURY CASES Includes Guidance on 10% Uplift 14th edition Foreword by Lord Justice Irwin Compiled for the Judicial College by Mr Justice Langstaff, Peter Carson, Stuart Mckechnie, Steven Snowden QC and Richard Wilkinson ISBN: 978 0 19881 452 8 OXFORD UNIVERSITY PRESS www.oup.com

TWENTY-FIVE YEARS OLD AND MORE ESSENTIAL THAN EVER A decision some twenty-five years ago by the Judicial Studies Board established a working party to prepare the original Guidelines for the judiciary. As Lord Donaldson said, the Guidelines were “not intended to represent, and does not represent, a new or different approach to the problem” of how to assess general damages, especially where no two cases are ever precisely the same. Today, in 2017, Lord Justice Irwin says in his Foreword that Donaldson’s view is now “a voice from a different era” concerning the

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assessment of damages. The reason being that the judges now will only from time to time be called on to take a decision on assessment because it is no longer “one of the commonest tasks of a judge sitting in a civil court” and working out the assessment level. As Irwin LJ concludes, it is the case now that the real dispute on quantum lies elsewhere. He writes that “the argument as to the level of damages for pain and suffering will usually be an incidental issue in a case where the decisive matters are liability, the nature of a care regime, disputed contributory negligence or something more technical”. And all this is down to one factor- “these Guidelines have operated to diminish hugely the incidence of unsettled arguments as to damages for ‘PSLA’ (pain, suffering and loss of amenity)”. The guidelines have settled the law and given us an admirable service in the past and the new edition continues to give us the best information available for assessments and how we arrive at them. As a passing final thought, Irwin LJ mentions both the Jackson reforms and the proposals on “whiplash”. Both areas have fallen victim to the dominance of Brexit matters in Parliament and the June election. However, the future is catching up with all of us fast. The question posed is will the reforms and “whiplash” get Parliamentary time? We hope the answer is “yes” for the same piece of draft legislation will be essential for the enactment of the electronic civil court by means of the ‘Online Procedure Rules’ which Irwin rightly describes as “an essential part of the Courts’ Reform programme. He ends ominously with these words- “the clichéd Chinese curse of life in interesting times sounds less hackneyed than usual”. Donaldson and the JSB grasped the nettle 25 years ago with these Guidelines so there should be no excuse! So, you and your practice need this guide if you are involved in any aspect of personal injury work. We hope that other suitable guides will be published by the Judicial College and OUP in the future (for instance, online courts) because they make our working lives much easier as practitioners and they are a boon for unrepresented parties as well. These guidelines were published as a 14th edition on 28th September 2017.

incorporated all the supplements since the fourth edition.

ARLIDGE, EADY & SMITH ON CONTEMPT Fifth Edition General Editors: Patricia Londono, David Eady, Professor A T H Smith and Lord Eassie ISBN: 978 0 41406 380 8 SWEET & MAXWELL/THOMSON REUTERS The Common Law Library www.sweetandmaxwell.co.uk

THE COMMON LAW LIBRARY REMAINS AS REFRESHING AS EVER WITH THE NEW FIFTH EDITION ON CONTEMPT LAWS

One of the most enduring aspects of the top level legal works is Sweet and Maxwell’s Common Law Library. It remains of the highest authoritative value as legal publications for the judiciary, lawyers and academics. If you want to identify where the law can be found on any major area of substantive importance look no further than this Library of books. And that remains the case with the new fifth edition of the Law of Contempt which first appeared in 1982. The new edition appears some five years after its predecessor at a time of substantial technological change, particularly with regard to the role of the juror. As the editors write, “there has been a resurgence of interest in those who have in various ways by their actions undermined the integrity of trial by jury”. Therefore, the editors have included some most useful commentary on recent case law authorities both here and in Europe. Of course, the temptations of the internet will remain as real concerns for the judiciary plus the ever present issues of human rights laws which are very well covered in the new edition which has

We found the information on reform from the Law Commission enlightening, specifically their Reports on contempt No 335 covering the “dead letter” subject of “scandalising” (still with us apparently!). Their report dealing with contempt on the face of the court has been delayed, but will presumably be resurrected for a future edition of this most impressive work. Fortunately we have useful commentary on the significant changes which affect both civil and criminal contempt, and coverage of Part 81 of the CPR. The editors state that “open justice has been a continuing theme”, and this is especially so with family matters and the protection of journalists’ sources. The text has been revised to include a number of new practice directions and other guidance which we found most useful. They cover matters like access, reporting restrictions and the publication of judgments which will be of particular interest to many readers. For the first time, more consideration is given to the access and availability of visual recordings at a time when IT is progressing at a very fast pace. The Preface to the book makes some important observations about visual access although it is, of course, confined to the higher courts at present. It is very clear that this area will require another visit for the next edition when the fourth industrial revolution really hits the legal world. There is a final word of warning. Most proceedings we are involved in are slow moving and technical “so that there is little to hold the attention of the casual onlooker.” The advice (or approach) is that “the presence of cameras does not intrude upon or inhibit the court process”. Therefore, rightly so, protection must be afforded to those who may not be able to cope so well with such distractions. In essence, after the comments from experiences in the New Zealand courts, it will be a slow process of evolution… but probably inevitable. A team of ten additional contributors make this new edition as complete as it can be and they, together with the editors, have made this work the definitive authority on contempt at a time of change; we cannot do our work as practitioners without these Common Law Library books so thank you all very much for what you have achieved here. The publication date is 23rd May 2017.

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Protecting your practice from modern day business risks R

eports state that there are an increasing number of criminals specifically targeting law firms. In addition to these threats, there are new regulatory obligations that bring with them new risks which need to be protected. Threats such as cyberattacks and data breaches are all part and parcel of modern day business risks law firms now face. As recently highlighted in the media, cyber-attacks are increasingly becoming the norm. Sadly, it is more likely to be a case of ‘when’ not ‘if’ your practice will be attacked. Out of necessity, businesses have started to think more proactively, raising staff awareness through training, whilst also implementing new processes and procedures in place to effectively deal with an attack, or minimise the damage an attack may cause. This is particularly prevalent for law firms, due to the amount of personal and sensitive data that they hold, especially with the impending GDPR legislation which is effective from May 2018.

What is described as a “cyber-attack” can come in variety of forms, including but not limited to a malware attack, malicious hack, a disgruntled employee, or simply caused by human error. Upon discovery that you have been affected, the damage to your practice could be anything from a breach of privacy (loss or theft of personal data, as well as third party or corporate data), or it could simply interrupt your business preventing you to trade, alternatively it could result in the discovery that a theft has occurred, all of which could cause you significant reputational harm. During or in the immediate aftermath of an attack, a firm need to make very important decisions and quickly. These decisions can come from all angles, with the need to consider protecting yours and your clients’ reputation and getting your business back on track as quickly as possible. Extensive expertise is often required, which could include forensic and security specialists to identify the cause, lock down and collect evidence as well as involving crisis management and PR support along with the need for legal counsel. Furthermore Regulatory obligations include,

protection of client moneys and assets; along with having the responsibility to keep the affairs of clients confidential along with having to comply with legislation applicable to your business, including anti-money laundering and data protection legislation. Which means that all practices need to address ways to protect their overall risk profile, as cited in principle 1 and outcomes O(4.1) and O(7.5). Due to the concerns expressed by our clients of the modern day risks that they are faced with, we have developed a unique, seamless and interlocking insurance product specifically for the UK legal sector of England and Wales. The product incorporates Cyber, Crime, and Regulatory defence cost coverages alongside SRA compulsory PII insurance. For more information on how we can help protect you from modern day business risks, please contact myself or one of Lockton solicitors team on 0330 123 3870, or alternatively please visit our website: www.locktonsolicitors.co.uk Brian Boehmer, Lockton Companies LLP +44(0) 207 933 2083 brian.boehmer@uk.lockton.com

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Five reasons to outsource your payroll By Julian Bryan, Managing Director, Quill

he clock is ticking for UK employers who haven’t yet gone live with auto enrolment workplace pensions. The final staging dates are imminent and The Pensions Regulator is now routinely publishing details of employers who’ve been ordered to pay fines for ignoring new pension rules.

If you’re not compliant already, now’s the time to act. However, if you’re battling to get to grips with auto enrolment (and we wouldn’t be surprised; it hasn’t been labelled “the biggest shake up of pension reform for a generation” for nothing!), there’s never been a better time to outsource the increasingly burdensome payroll function. “You’re bound to say that!” we hear you shout. And, yes, we agree with you. As an outsourced service supplier, it’s in our best interests to promote outsourcing at every opportunity. But, we anticipate some scepticism which is why we’ve helpfully compiled a compelling list of five good reasons in our attempt to convince you that we’re not being entirely selfish. We’re actually doing our bit to help you cope with mandatory pension reform and avoid costly financial penalties or irreversible reputational damage. So, without further delay, let the five reasons begin:1. Auto enrolment applies to everyone Even if you employ just one person, you’re still obliged to provide a workplace pension. In other words, there’s no avoiding it. It’s the law. Whether you’re a small, medium or large-sized business, you have a legal requirement to comply by your allocated staging date. We strongly recommend checking your staging date as soon as practicably possible. It’s easy to do. First, hunt out your PAYE reference. This is conveniently located on all your company’s HMRC

documents. It takes a 3-digit, 7-character format, for example, 913 / WZ5121A. Armed with your unique identifier, go to the online staging date tool at www. thepensionsregulator.gov.uk/employers/ staging-date.aspx, enter your PAYE code, complete the recaptcha box and click the ‘Show my staging date’ button. 2. Punishments are enforced Just as with any breaches of the law, there are punishments for non-compliance. The Pensions Regulator is empowered by the UK Government to regulate and fine businesses who don’t comply, whether deliberately or unintentionally. Financial penalties range from £400 fixed penalty notices right up to £50,000 civil penalties for companies failing to engage with auto enrolment or pay contributions due. And it’s not just the financial cost, although this is obviously deterrent enough. The negative publicity surrounding your unlawful activity may cause irreparable damage to your professional reputation. As a legal service provider, this is extremely embarrassing. Even worse, you may lose clients as their trust in you becomes questionable and, as a result, they begin to conduct their legal affairs elsewhere with one of your (delighted!) competitors.

All this lengthy preparation is stressful enough without a last-minute rush by businesses who’ve left it until the eleventh hour to prepare. Much more so, if you have! And, even when you’ve reached your staging date, your responsibilities don’t end there. Employees must be re-assessed, contributions re-calculated, opt-ins added, opt-outs removed with refunds given each payroll cycle. Not forgetting general record keeping and reporting which is part-and-parcel of maintaining a clear audit trail of transactions. It’s a mammoth task and one which needs tackled every few weeks ad infinitum. The main reason cited by businesses postponing their staging date is an inability to cope with the excessive amount of prescribed paperwork. Despite being on the horizon for years, firms are continually caught unawares by the sheer volume of work involved preparing for auto enrolment. 4. Selecting a pension provider is a difficult decision

3. Managing work-based pensions is demanding and complicated

Pension providers are much of a muchness, offering the same service for the same fee, right? Wrong! With no restrictions on charges, some providers are applying additional administration costs. Providers’ benefits, such as range of investment options and web-based software support, vary drastically too.

Even before your staging date arrives, there’s a lot to do. This includes assessing your workforce to see who’s eligible (against defined criteria), choosing a pension scheme (from an auto enrolment ready pension provider) and communicating with your staff regarding their options.

Your choice of pension provider will influence the costs to your business of auto enrolment as well as determine the administrative processes involved. So, the small print matters and needs to be carefully checked, compared and questioned before you sign on the dotted line.

One of your earliest decisions relates to the individual pay components which determine your employees’ qualifying earnings, for example overtime, commission and bonuses. It’s up to you to make a reasonable judgement as to whether each element fits within the definition of qualifying earnings.

5. There are other payroll duties to manage too To top it all, your payroll clerk (who may also be your business manager, accounts clerk, general administration assistant, receptionist or everything combined!) has all his / her existing responsibilities to

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take care of. Your employees’ salaries, for instance. After all, unless they’re working on a voluntary basis, at the end of each month, your employees have to get paid. On a standalone basis, payroll management can be a full time job, covering salary processing, SMP, SPP and PAYE payments, payslip production, inyear and year-end reporting, as stipulated by ever-changing HMRC legislation. A heavier workload resulting from the introduction of auto enrolment pensions and, suddenly, the role assumes unmanageable proportions. The net result of overwork is often stress at work. This isn’t pleasant for your struggling employee, who may require long-term sickness leave for recovery purposes, or for you dealing with the fallout, sharing your absent staff member’s duties between present employees or recruiting temporary stand-ins. As a Bacs-authorised bureau (more on this later), we’re permitted to perform your payroll function on your behalf, including transferring money from your business bank account directly into

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your employees’ bank accounts to pay their monthly salaries, thus significantly lightening the load on you. These five reasons are specifically related to payroll and pensions. There are, of course, many other reasons to outsource complex, heavily regulated back office business functions. For example, lower operational costs, enhanced risk management, compliance assurance, availability of value-added support, automatic emergency planning, built-in disaster recovery, scalability, healthier cash flow and business development assistance… to name a few. Read our earlier “Ten reasons to outsource your cashiering” guide at www.quill. co.uk/10-reasons for full details because, although specifically related to outsourced legal cashiering, the substantial list of benefits is equally resonant when the topic’s focused on outsourced payroll. To wind up, then, hopefully by now you’ve gained a better understanding of what’s demanded by auto enrolment. You may also have come to the conclusion

that you simply don’t have the capacity to cope in house with your alreadystretched human resources. In which case, our Quill Payroll outsourcing service is an increasingly appealing option. HMRC approved, Bacs registered, Chartered Institute of Payroll Professionals accredited, 40+ years experienced, Quill Payroll is a service you can depend upon, leaving you free to focus on running your business with complete confidence that your payroll and pensions couldn’t be in safer hands. Visit our dedicated Quill Payroll website at www.quillpayroll.co.uk, email info@quillpayroll. co.uk or phone 0845 226 2587.

Julian Bryan joined Quill 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 and software to the legal profession.

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Legal Indemnity insurance continues to evolve

f you’re involved in conveyancing, you’ll be only too familiar with having to arrange legal indemnity insurance. Insurance is often used to satisfy lender requirements, where speed is of the essence to complete a transaction. The availability and delivery of legal indemnity services has changed over recent years and continues to evolve. So what’s changed - are all legal indemnity services the same? Whatever your views on insurance, it is now applied to a greater percentage of transactions than ever before. The days of waiting for an insurer to reply to a letter or even an email for the most commonly requested indemnity policies has mostly gone. We’ve been through the period of the call centre to arrange insurance, followed by the paper based ‘self-issue’ pack – itself a significant change in its time! Inevitably, the next advancement was to take the self-issue pack to online, this led to online services offering even more insurance products and flexibility, joining the technological trend to ordering searches, titles and other related services online.

write to the providers or wade through a selection of self-issue packs (assuming they have yet to adopt the move to online services). However, legal indemnity insurance solutions such as DUAL’s ‘My Legal Indemnity Shop’ online service now takes things forward to the next stage by offering solicitors (and clients) a choice of up to 3 quotes from different insurers, all from a single website and simple quote application. Whilst many legal indemnity insurance products are tried and tested and vary little between insurers beyond price, provision and delivery of legal indemnity insurance continues to evolve. New services such as ‘My Legal Indemnity Shop’ are another step forwards towards providing greater choice when placing legal indemnity insurance and, perhaps, go some way in helping solicitors achieve core outcomes such as Client Care and Treating Customers Fairly when giving advice to clients on these insurances. Mark Dennis, Head of Residential Risks, DUAL Asset Underwriting

The move to online has, of course, not only improved the speed within which solicitors can obtain legal indemnity quotes and policies, but has also brought about reduced premium charges for clients, particularly as more insurance providers have moved business online. Client demands and expectations have also changed. We live in a world where there is demand not only for great service and advice, but also choice and value for money. The Financial Conduct Authority’s (FCA) Treating Customer Fairly (TCF) initiative aims to raise standards in the way firms carry on their business, bringing about changes to benefit consumers, and increase their confidence in the financial services industry. TCF is recognised by The Solicitors Regulatory Authority as a core outcome of Client Care including, amongst other desired outcomes, treating your client fairly and ensuring they are in a position to make informed decisions about the services they need, how their matters will be handled, and the options available to them. Most clients, when buying insurance or indeed other services, look for and compare a choice of quotes to make an informed decision about what they are buying. Comparison sites have been around for general insurance, as an example, for many years now. Even if a client chooses not to arrange insurance themselves and goes to an insurance professional such as a broker, the broker will usually obtain a choice of quotes or insurance options to present to the client for consideration or recommend from a choice as to which best suits the clients needs. For solicitors acting on a client’s behalf in arranging legal indemnity insurance, it has always been more difficult to obtain several quotes for comparison to determine what might be best for the client’s demands and needs. To get a choice of quotes, a solicitor had to visit each providers website and complete each insurer ’s online application,

FINDING YOUR VOICE IN TODAY’S DIGITAL A ND P RIN T MEDI A

East Park Communications Maritime House, Balls Road, Birkenhead, Wirral CH43 5RE 0151 651 2776 www.eastparkcommunications.co.uk

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