Biblio Magazine issue 7 by EPC Studio

Issue 7 - Winter/Spring 2018-19

Biblio Berkshire • Buckinghamshire • Oxfordshire Incorporated Law Society

Special Focus on Parliament’s latest proposals for divorce law reform Page 12

In this issue: The Solicitor's Qualifying Exam - An Overview • GDPR - Where are we now? • Resilience, yes - but for whom? • The Rise of Surrogacy & more...

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Issue 7 - Winter / Spring 2018-19

From the President... Welcome to the latest edition of Biblio.

Offers of Free Wills. What’s the harm in that? Whether it is a charity looking to give something away or a promotion of some other kind we are often encountering offers of a free Will. Popular statistics indicate that about 60% of people do not have a Will. That is an important indication and generally accepted advice is that it is better to put a Will in place. But for the purpose of this article I am more concerned about those who die without a good-enough Will. We have a standard pattern for many Wills we provide to clients such as ‘everything to spouse; substitution to children, grandchildren etc.’ For many clients that does nicely. But we must consider whether that is good enough. I can foresee much litigation against Will writers (us or non-lawyers) for not considering with clients the impact of beneficiaries’ divorce, bankruptcy and death. This will usually require the use of well drafted trusts. What does this mean? The first answer is that we have to consider the ‘tail’ with the client and what the bigger picture is with regard to their wishes. The second is that having introduced that fuller picture, if it is not what the client wants then we must have some form of defence mechanism on our files to deal with a claim. An obvious choice here would be a signed Disclaimer. Of course the claimants will be those beneficiaries who believe they have incurred a loss. The Judiciary (in my opinion as a self-confessed cynic) has made it clear that if we can be blamed – no matter how far a stretch – we will be. The Dreamvar case being the latest example (Dreamvar v Mischcon de Reya (2018) EWCA Civ 1082). It must therefore be clear to us all now that there is danger in doing any cheap or free loss leaders unless we are doing a full rounded job and protecting our firms. We must not consider Wills as sprats to catch mackerel (if you believe that this will increase our client bank – think again!). We must have good Disclaimers or some other means of protection. Simon Stone President, BB&O Law Society 2018/2019

Berkshire Buckinghamshire Oxfordshire Incorporated Law Society Magazine

Contents 3

From the President

Committee Members

A word from the Editor

JLD BB&O

GDPR - Where are we now?

The Solicitor's Qualifying Exam - An Overview

BB&O Law Society Membership Application Form

Divorce Law Reform

Philanthropy in the genes

The Inheritance Tax Incentive

Resilience, yes - but for whom?

Law Society News

The Rise of Surrogacy

Japanese Knotweed

Expert Witnesses - Impartiality and Balance

Bar & Young Bar Conference review

Book Review

Quill's Software team and Interactive Documents

Published by:

Advertising

Accounts

Legal Notice

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Simon Castell

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Winter / Spring

from the publishers. East Park Communications

Denise Green

2018/19

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membership

Berks, Bucks & Oxfordshire Incorporated Law Society

Committee 2018-19 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 Immediate Past President Cyrus Medora Kidd Rapinet DX 42269 Slough West CMedora@kiddrapinet.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 Jonathan Warbey Horwood & James DX 4102 Aylesbury jonathan.warbey@ horwoodjames.co.uk

Richard Coleman Royds Withy King DX 4314 Oxford 1 richard.coleman@roydswithyking.com Olivia Shenton-Taylor Blake Morgan LLP DX 723000 Oxford 5 Olivia.shenton-taylor@ blakemorgan.co.uk

Nawaz Khan Abbott Forbes Council Member DX 45410 Cowley nawazkhan.gb@gmail.com Local Authority Solicitors Nick Graham Oxfordshire County Council DX 4310 Oxford Local Authority Solicitor Nick.Graham@Oxfordshire.gov.uk

Administrator Special Members

Oxfordshire Tracy Norris-Evans Royds Withy King DX 4314 Oxford 1 tracy.norrisevans@roydswithyking.com

A word from the publisher

elcome to the latest issue of Biblio and many thanks for all the contributions. We are hoping to expand opportunities to all members to become involved in the journal by writing articles on hard Law or on social events within our region. We see Biblio as a tool to strengthen links with all members and create a more vibrant Society. Some of you may not be aware that Biblio is now accessible on multiple platforms through our new online blog. Please visit http://www.bibliobulletin.com/ where you can access news on your phones and tablets. This gives us the flexibility to let you know of any new events or changes to schedules at short notice. Lets hope we have a happy and productive year and work together to expand the activity of BB&O Law Society. Simon Castell, MD East Park Communications simon@eastparkcommunications.co.uk

Edward Pilling Royds Withy King DX 4314 Oxford 1 edward.pilling@roydswithyking.com

Council Members Razi Shah Appleby Shaw DX 3830 Windsor rshah@applebyshaw.com

Denise Green BB&O Law Society Shelton House, 4 High Street, Woburn Sands Milton Keynes MK17 8SD admin@bbolawsoc.org.uk

Dates for your diary 1st April – Commercial Law Update - Lecture by Richard Snape 14th June - BB&O Annual Dinner 8th July – AGM followed by Residential Law Update – Lecture by Richard Snape

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JLD BB&O

AWARDS

Junior Lawyers Division for Berkshire, Buckinghamshire and Oxfordshire

Welcome Event

An update from Yvonne Dang, the President of JLD BB&O on the events in 2018 It’s been a busy year for the new (and growing) committee of 2018/19! We currently stand at 19 members represented across nine firms/organisations and since being elected in July 2018, we have organised three very well attended events and are really excited for the future. Welcome Event at Zero Degrees (Reading) on 4 October 2018 This was a fantastic first event as we had over 90 attendees who turned up for some pizza and drinks. We also introduced our new charity of the year: Thames Valley Air Ambulance (TVAA) and our event sponsor BCL Legal held a business card draw which was won by Katherine Coulson from Blandy & Blandy. Quiz Night at Revolution Bar (Reading) on 28 November 2018

December Drinks

the raffle prizes. The raffle draw raised over £240 and the committee have rounded this figure up to £300 which TVAA tells us “could actually keep one of our emergency response vehicles on the road for 6 days, bringing the equipment, medication and expertise of the hospital to where it is needed most, so thank you for your ongoing support.”

business card draw which was won by Paul Francis from Blake Morgan and Jayne Parle from Marks & Clerks.

Our event sponsor BCL Legal held a business card draw which was won by our very own JLD BB&O Treasurer, Rebecca Ledgerwood from Blandy & Blandy. The winners of the quiz were the team from Conveyancing Data Services Ltd who left with a trophy and bottle of champagne (pictured left).

We have lots more planned for 2019 with the first event being a career focused one in conjunction with Hays on 17 January 2019 (more details to follow).

December Drinks at Angels Cocktail Bar on 4 December 2018

If you would like more information about the Junior Lawyers Division for Berkshire, Buckinghamshire and Oxfordshire, please email juniorlawyersdivisionbbo@gmail. com. You can also keep up to date with our activities on LinkedIn (https://www.linkedin. com/company/junior-lawyers-division-forberkshire-buckinghamshire-and-oxfordshire/) and Twitter (@JLD_BBO).

We held our annual Quiz Night which is one of our biggest events in terms of fundraising for our charity of the year.

This was the first Oxford based event in a few years, so it was brilliant to see so many new faces at a range of local firms participate in the cocktail masterclass.

A big thank you to all our generous donors for

Our event sponsor Michael Page held a

We hope to host another event in Oxford in the near future! What next?

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ARTICLES

GDPR – where are we now? 25 May 2018 saw the GDPR and the Data Protection Act 2018 come into force. Many ‘do you still want to hear from us’ and ‘read our new privacy notice’ emails were sent and received. Seven months on, where are we now? Huge rise in data subject access requests (SARs)

ata subjects are now well aware of their rights. Article 15 of the GDPR entitles data subjects, in certain circumstances, to access personal data that a data controller processes about them. Although the right to make a SAR existed preGDPR, there has been a significant rise in the number of SARs organisations are receiving. Under GDPR, organisations must provide their response to a request in a ‘commonly used electronic form’. Furthermore, data controllers can now only charge a “reasonable fee” based on administrative costs when responding to such a request.

• British Airways – theft of customer data of customer bookings booking (21 August to 5 September 2018); • Dixons Carphone – compromise of data of up to 10 million customers after a hack was discovered (June 2018); • Ticketmaster – customers purchasing tickets between February and June 2018 may have been affected. In relation to the Ticketmaster data breach, the ICO stated:

The fees and respective fines are: • Tier 1 – micro organisations. Maximum turnover of £632,000 or no more than ten members of staff. Fee: £40 Fine: £400 • Tier 2 – SMEs. Maximum turnover of £36million or no more than 250 members of staff. Fee: £60 Fine: £600 • Tier 3 – large organisations. Those not meeting the criteria of Tiers 1 or 2. Fee: £2,900. Fine £4,000

“We will look at when the incident happened and when it was discovered as part of our work and this will inform whether it is dealt with under the 1998 or 2018 Data Protection Acts.”

As illustrated above, the fee is significantly lower than the fine. So it is worth re-visiting whether you are registered with the ICO and if you have paid your annual fee.

The ICO also released a similar statement in relation to Dixons Carphone.

Brexit…

In some circumstances repeated or excessive requests may be refused, or an extension of time (the norm is one month) can be applied. However there is little guidance on the use of these limiting provisions, and no case law – yet.

The ICO needs to decide whether to issue sanctions under the old or new regimes. The monetary penalties under the 2018 Act are significantly higher than the maximum £500,000 under the 1998 Act.

Organisation is key when a SAR is received. The scope of the SAR could be very wide and the relevant personal data very extensive, especially employee data. Data controllers might seek to refine the scope of the SAR as a first step. Then all the personal data relevant to the SAR should be collated. It then needs to be decided whether the personal data is disclosable, or whether an exemption applies. If the personal data is disclosable, carefully apply the balancing test in relation to disclosing personal data of a third party. It may be more appropriate to redact their information than to disclose it. There is also a list of prescribed information which must be given to data subjects, as well as the data they have sought.

Fines issued

Finally – it’s always worth remembering that even though it feels like the same exercise, responding to a SAR is not the same as litigation disclosure. 1998 or 2018 Act? Since May, reported high-profile data breaches include: • Marriott Hotels – personal data of approximately 500 million guests was compromised (November 2018);

for non-payment of the fee.

The ICO is yet to issue an fine under the Data Protection Act 2018, but watch this space!

And finally – on 13 December, the Information Commissioner published a helpful and timely blog, available on the ICO’s website, at https:// ico.org.uk/about-the-ico/news-and-events/ blog-data-protection-and-brexit-ico-advice-fororganisations about the data implications of a no-deal Brexit. Jaya Bajaj, trainee solicitor Daff Richardson, partner Penningtons Manches LLP

In October 2018 the ICO fined Facebook £500,000 (the maximum under the 1998 Act) for a series of data breaches. The ICO commented: “We considered these contraventions to be so serious we imposed the maximum penalty under the previous legislation. The fine would inevitably have been significantly higher under the GDPR. One of our main motivations for taking enforcement action is to drive meaningful change in how organisations handle people’s personal data”. Data protection fees Under the Data Protection Act 2018, all organisations, companies and sole traders that process personal data must pay an annual fee to the ICO (unless they are exempt). More than 900 notices of intent to fine (due to non payment of the data protection fee) have been issued by the ICO since September 2018. More recently, the ICO has targeted care homes

Jaya is a trainee solicitor in the Employment team at Penningtons Manches, based in the Reading and Oxford offices. Jaya has also completed seats in Corporate and IP, IT & Commercial. Jaya has assisted the firm’s GDPR team with helping clients to ensure GDPR compliance and to respond to recent subject access requests. Daff is a partner in the Employment team at Penningtons Manches, based in the Oxford office. She specialises in data protection matters and is part of the firm’s GDPR team. She has helped numerous clients with data protection issues including many recent subject access requests.

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AWARDS ARTICLES

The Solicitors Qualifying Exam – An Overview need to make. This document contains the facts. They have been checked by the SRA for accuracy and they represent a comprehensive round-up of everything we currently know.

Alan East, Chair, Education and Training Committee, The Law Society of England and Wales

he Solicitors Qualifying Exam (SQE) is set to be the biggest shake up of legal education and training in many years, replacing current routes to entry and introducing two stages of centralised assessments. These will set the standard for entry to the profession and will sit alongside requirements for a degree level qualification, twoyears of qualifying work experience and a character and suitability test. Whilst there is much that the Solicitors Regulatory Authority (SRA) is still developing, particularly in the detail of the scheme, there are also many points that have been finalised and approved by the Legal Services Board. The Law Society has put together a straight forward, informative guide to the SQE to enable stakeholders to look at what they can do to prepare for the introduction of the SQE. It is important that those affected begin thinking about how the SQE may impact on them and/or their business and consider any changes they may

The development of the SQE is a long process, which we are only part-way through. More information on key aspects - the assessment detail and finalised costs in particular - will be forthcoming as the assessments are developed and the SRA complete further work. This document will be updated as further information is made available. The SRA announced at the start of November that the date of implementation has been moved to September 2021. This gives aspiring solicitors, employers, providers of legal education and other organisations offering training more time to decide what they wish to do and to prepare for this change. The Law Society is keen for the SRA to take the time it needs to get the SQE right as the SQE is of fundamental importance to the profession and to everyone seeking legal advice. If more time is needed to ensure that the SRA have made all necessary checks on the assessments and that the profession and education providers have been given adequate time to prepare, then deferring the introduction is a sensible step. The provisional assessment fees also announced by the SRA in early November, of between £3,000 - £4,500 for both SQE1 and SQE2 stages, represent a great deal of money. There are currently no funding mechanisms available to provide loans for the SQE assessments, so any fees will have to be self-funded by candidates or firms, which would disadvantage students with less financial means.

In the current system candidates can get a loan to take the Legal Practice Course (LPC), so whilst it is more expensive than the new fees proposed, it does not represent a financial barrier in the same way. A similar solution must be found for the SQE so that all candidates, regardless of background, can qualify as a solicitor. It should also be noted that these fees are for the assessments only, and do not account for any fees associated with preparatory courses that many aspiring solicitors may wish to utilise. The Law Society has been representing the profession's views as the SQE policy has been created and continues to engage with the profession, and with the SRA on

behalf of the profession, as the assessments are developed. The Law Society is also supporting the profession with this change by providing clear information and taking forward any comments it receives. Maintaining high professional standards and ensuring the diversity of the solicitors’ profession have been top priorities for the Law Society from the very start of the SQE process. We want to enable potential entrants to the profession to make informed choices about which route may be best for them and we hope this overview is valuable to schools, universities and careers advisers. The SQE Overview is available on the Law Society’s website.

ata subjects are now well aware of their rights. Article 15 of the GDPR

Although the right to make a SAR existed preGDPR, the

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MEMBERSHIP

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advertorial

Parliament’s latest proposals for divorce law reform by Holly Mullen, Trainnee Solicitor, Hawkins Family Law

that they have behaved in such a way that the petitioning spouse can no longer reasonably be expected to live with them. The latter is the more common fact relied upon and it has a high burden of proof. The behaviour alleged must be more than something trivial and if a spouse contests the divorce, a Judge will scrutinise the behaviour to decide whether it is sufficient.

n the 18th July this year, the Divorce (etc.) Law Review Bill had its first reading in the House of Lords. The Bill was proposed and read by Baroness Butler-Sloss after research published by the Nuffield Foundation found that serious problems exist with the current ‘fault-based’ divorce law: that it is contrary to public policy and it leads to unfairness, exaggerated allegations by one spouse against another and unnecessary conflict which has damaging consequences for children.1 The current law, as introduced over 50 years ago in 1973, allows for divorces to be granted where one spouse proves both that a marriage has irretrievably broken down2 and that there exists one of five specific facts. These are, in short, adultery, behaviour, desertion or separation with or without consent.3 Most applications for divorce cite either behaviour or adultery as the other facts require the parties to have been separated for at least two years – many couples are not willing to wait that long and wish to be divorced sooner so that they are able to move forward in their lives. The main problem with the current divorce law, therefore, is that married persons, in order to achieve a quicker divorce, must allege either that the other has been unfaithful or

The injustice with the current law can clearly be seen in the recent Supreme Court judgement in Owens v Owens.4 Mrs Owens applied for a divorce in 2015 citing that Mr Owens had prioritised work over home life; lacked love or affection in his treatment of her; been moody or argumentative frequently; disparaged her in front of others and as a result left her feeling unhappy, unappreciated, upset and embarrassed so that she had over many years grown apart from him. Despite Mrs Owens providing 27 examples of this behaviour when asked to expand upon it by the initial Judge, her petition was unsuccessful having not proven to the required degree behaviour which made it unreasonable for her to be expected to continue living with Mr Owens. Despite lengthy litigation and a desperate wish to be free from her marriage, Mrs Owens was denied a divorce. In practice, most divorce cases are not defended, therefore the particulars of the behaviour written in petitions is rarely scrutinised as in the Owens case. Even so, for the recipient of a petition based on behaviour, it can, at best, be upsetting to read and, at worst, inflame the relationship such that any amicable resolution of the finances and child arrangements becomes impossible. Parliament clearly agree and did, in fact, attempt to reform divorce law in 1996 via the Family Law Act. This introduced a four stage system. Firstly, a spouse seeking a divorce would attend a compulsory information meeting with or without the other spouse. Secondly, they would need to wait three months after which they could apply to the Court to say that the marriage had broken down. Next, there was a period of ‘reflection and consideration’ of nine months if there were no children, and fifteen months if there were children. Finally, the fourth stage was

the granting of the divorce order. Upon being introduced, the system was initially piloted which received extremely negative results. The feedback was that the system was unworkable; the length of time to wait was far too long and the information meetings were rarely attended by both spouses and, if they were, they could become hostile. Due to this, the reform was abandoned and the relevant parts of the legislation repealed. This time around, the proposed reform imposes an obligation on the Lord Chancellor to conduct a review of the law and consider the effect of replacing the current system with one that works through ‘application and confirmation’. The Lord Chancellor must consider alongside this how the proposed system would affect financial provision and arrangements for children. There would not be a change to the current ground for divorce, which would remain as an irretrievable breakdown of the marriage. This, instead of being supported by one of five facts, is proven by an application to the Court and a subsequent confirmation for that application to go ahead. There would, therefore, be no need to cite negative instances of a spouse’s behaviour, their adultery, desertion or any separation. Another part of the application process currently proposed is that it could be made by both parties to the marriage/civil partnership jointly. This is an exciting idea that would promote the cooperation of the parties – clearly useful for ex-couples who need to be able to work together for the benefit of any children. Joint applications for divorce would obviate the adversarial ‘petitioner’ versus ‘respondent’ position currently in place. For the confirmation aspect, one or both parties would confirm to the Court after a nine month period that they wished for the divorce to go ahead. Alternatively, the application could be withdrawn before the end of this period, say if the couple had decided to attempt a reconciliation. Resolution, a body made up of 6,500 family lawyers who follow a code of practice in order to ‘promote a non-confrontational approach to family problems’5 strongly support the reform

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proposal and call it a ‘landmark moment for divorce law in England and Wales’.6 Resolution have been campaigning for years to have the current divorce law changed and even suggested a similar reform to that which has been suggested – where one or both partners give notice that the marriage has broken down irretrievably and then, after six months, one or both of them applies to finalise the divorce.7 They say that this will ‘help people manage separation with less conflict, reducing the burden on the courts’. In order to become law, the bill has a long way to go as yet. It first needs to continue through the House of Lords and have a second reading (this is awaiting announcement at the time of writing), pass the committee stage, report stage and third reading and then pass to the House of Commons to go through the same stages. After this, any amendments made must be considered and passed by each House

ARTICLES

before the Bill can obtain Royal Assent and become law. Although there will be some time to go as yet, reform is to be welcomed. There is a generally accepted consensus that divorce law needs to change. In Owens, all of the Judges expressed unease at the decision, though they unanimously agreed that it was the correct interpretation of the current law. Perhaps, had she exaggerated Mr Owens’ behaviour to a higher degree, Mrs Owens could have established the requirement and the divorce may have proceeded. Lord Wilson aptly described this unsavoury truth when he stated that, as Mrs Owens was said to have couched the particulars of the behaviour in anodyne terms, this ‘should have been a compliment, not a criticism.’8 The Ministry of Justice also agrees that the ‘current system of divorce creates unnecessary antagonism in an already difficult situation’.9 The proposed reform is, therefore, eagerly awaited.

Notes ‘Finding Fault? Divorce Law and Practice in England and Wales’ Nuffield Foundation, Liz Trinder et al (October 2017) 2 Matrimonial Causes Act 1973 section 1(1) 3 ibid, section 1(2)(a-e) 4 [2018] UKSC 41 5 ‘About Resolution’ <www.resolution.org.uk> accessed 20th November 2011 6 ‘Resolution heralds ‘landmark moment' for divorce law’, Resolution (17th September 2018) <http://www.resolution.org.uk/news-list. asp?page_id=228&page=1&n_id=385> accessed 20th November 2018 7 ‘Allow people to divorce without blame’, Resolution Manifesto for Family Law (23rd Feburary 2015) <http://www.resolution. org.uk/site_content_files/files/resolution_ manifesto_for_family_law.pdf> accessed 20th November 2018 8 Owens [para 7] 9 Twitter @MoJGovUK 25 July 2018 1

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advertorial

Philanthropy in the genes: giving across generations

eaving money and inheriting wealth is a big responsibility – especially where a family has a strong social conscience and a desire to keep generosity going through the generations. At the recent launch of the new Beacon Collaborative initiative, which aims to double the amount given away through philanthropy to £4bn a year, several philanthropists spoke of the influence of their family background on their giving choices. Fran Perrin, the daughter of Lord Sainsbury, said: “Because I grew up in a family where there are 18 charitable trusts, it never really occurred to me not to. But it can be baffling. Giving it away is easy. Giving it away well is really hard.” This issue can be at the crux of a client’s reflections when considering how to manage their wealth in a responsible way, during and after their lifetime. The number of charities doing great work and asking for help can be overwhelming. and whilst your clients care about and want to give something back to their community, they may not know where to start. They are probably already supporting a number of different charities, but may have reached the point where they would like to take a more strategic approach, or to consider charities and activities closer to home.

Approaches across generations Younger donors may also want to look in new directions, rather than following directly in the footsteps of previous generations. They tend to understand that, whilst they are responsible for sensibly stewarding their inherited wealth, local communities have different and evolving needs in 2019

compared with the society of their ancestors. So how can families ensure that inherited wealth destined for philanthropic purposes is given away in the spirit of the generations that left it, whilst adopting a smart approach to giving in the present? Community foundations help clients to ‘give it away well’. They combine an understanding of local problems with their knowledge of the most effective solutions, walking side by side with families as they make decisions about their philanthropy. The mechanism to make it work This expertise is complemented by the ‘named fund’ structure – a ring-fenced charitable fund held by the community foundation on a client’s behalf, which can act as a practical alternative to setting up a registered charity or charitable foundation. This means that any donations can be quickly set aside for charitable purposes, with all the necessary governance, giving families time to plan how these funds will be used. One recent example is the Tim Stockdale Foundation, which is being hosted by Oxfordshire Community Foundation after the unexpected death of the high-profile British showjumping champion. Tim’s family will use funds raised in his memory to enable greater participation in sports, with a focus on emerging young talent. The structure also has significant advantages for the planful family donor who wants to leave a responsible philanthropic legacy for his or her descendants. Although some people have a clear idea which charities they wish to support through their will, others may be less certain. A long-term alternative is therefore for a community foundation to be named as the recipient in a will, with the instruction to use the legacy to support a particular type of issue, or help a particular geographical area. Philanthropy as family bonding As the years go by, family members can remain involved in the giving away of the

funds, but be guided by the community foundation about where the needs are most pressing, within the parameters of the original gift. This process can also give families the opportunity to come together for a focused discussion about doing good, which in turn helps them discover more about each other or build closer bonds. This can be a therapeutic moment for families in the context of a bereavement, especially when sensitively supported by a community foundation with experience of the healing potential of philanthropy. Ambitious philanthropy Community foundations are also becoming increasingly ambitious about their role in bringing together people from all parts of the community to tackle big social issues – not just individuals and families with financial resources, but statutory bodies, businesses, community organisations and their leaders, and researchers and academics. This can be an exciting approach for families that have been philanthropic for many generations, but are looking to revitalise the impact they can make by improving the world in a shared way. To find out more about philanthropy advice, contact your local community foundation: • Berkshire www.berkshirecf.org • Buckinghamshire www.heartofbucks.org • Milton Keynes www.mkcommunityfoundation.co.uk • Oxfordshire www.oxfordshire.org Note that community foundations cannot give financial or legal advice, and always recommend that clients have a detailed conversation with their professional advisor before making any decisions.

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CHARITY SECTION

What the inheritance tax incentive means to charities Tax incentives at risk The ongoing review of IHT by the Office of Tax Simplification (OTS) is an opportunity to create a more fair and simple system for the public, but it also puts the tax incentive for legacy giving in jeopardy. In fact, a recent proposal from one leading thinktank even suggested that IHT should be abolished altogether with little reference to the impact on charities.

nheritance Tax affects a small proportion of estates and yet the tax incentive for charitable estates has a huge impact. Why does it matter so much and, in light of the ongoing review of Inheritance Tax, what is being done to protect the current environment for gifts in wills? Rob Cope, Director of Remember A Charity, says: “It’s a common misconception that tax relief is all about financial incentives. No matter how generous a tax break is, it’s rarely the sole or even primary reason to leave a charitable legacy. Ultimately, people give because they care and are inspired by the cause. Because they want to leave a positive contribution on the world when they are gone.”

While the first OTS report was published shortly before Christmas and focused on how the administrative side could be simplified, it is the next stage that will unveil proposals for how IHT may be structured and what this might mean for the sector. It is impossible to second guess what decisions will be made, but Government has long supported gifts in wills and Remember A Charity is optimistic that future tax policies will continue to encourage and inspire giving. Why is the Inheritance Tax break so important for the nation’s charities? Cope says: “The reality is that the tax incentive serves to encourage and normalise charitable behaviour. It brings legacies front of mind, gets conversations about charitable giving started and helps to communicate just how meaningful a charitable bequest can be. It is hugely important that this incentive is maintained. Charities simply cannot afford to lose any legacy giving incentive, least of all IHT relief.”

Charities are increasingly reliant on gifts in wills Here in the UK, the public gives over £3 billion in legacy donations annually. More charitable services are being funded through gifts in wills and the number of supporters is on the rise. In what remains a challenging fundraising environment, this income has never been so important. Currently, we have one of the most encouraging national fiscal environments to promote legacy giving. Charitable gifts in wills are exempt from IHT (charged at 40%) and any estates that includes donations of 10% of their value (or above) also benefit from a discounted rate of 36% across the remaining value of the estate. This framework has had a major impact on legacies, but not always in the way that most people might expect. Yes, research shows the tax relief can be a strong incentive for people to give, particularly for those who lie just over the IHT threshold. But the real issue here is that tax relief gives solicitors and financial advisers the added impetus to discuss legacy giving with clients. Because there is a tax benefit, legal advisers and Will-writers have a natural entry point for discussions with clients and this has been an important factor in driving behavioural change. Cope adds: “Within this environment – one that normalises legacy conversations and conveys the state’s support for the concept – gifts in wills are becoming so much more commonplace. The tax incentive is working and that’s why it is protected.”

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Articles

Resilience, yes, but for whom?

ome years ago I began to notice the word resilience. It started to appear everywhere: online, on the radio, in the workplace. Employers were concerned about their employees and their emotional resilience. They were talking about resilience – what it is, why it is important, what happens if you don’t have it. They were even paying for it. Consultants turned up at away days. Leaders were trained and the learning was cascaded. Perhaps this concern with resilience was prompted by the fallout from the financial crash. Maybe it was just a healthy and welcome stage of our ongoing human evolution. In any case, it seeped into our consciousness and seems to be here to stay. But I have begun to smell a rat. Resilience is the quality of being able to weather adversity while remaining sane and whole and healthy. That’s a good thing, isn’t it? So why is resilience beginning to sound like a panacea for the toxic workplace? Worse still, people who cannot cope in such a place are beginning to sound like the problem. You aren’t resilient enough. You should be able to cope with this. Don’t point the finger at us when it is you who are inadequate. And I have begun to think, “Resilience, yes, but for whom?”. There have always been great demands on solicitors but those demands are becoming more acute what with billing targets, increased regulation and

growing competition. Throw in a sadistic boss or the threat of redundancy and you have a toxic mix that calls for mammoth reserves of resilience just to hold your balance. If you fear you might be close to buckling, then my purpose here is to awaken you to that off-sounding note in the resilience discourse. This will help you set about finding and fixing the right problem and, more importantly, save you from punishing yourself if it isn’t you at fault. Sift through the toxic mix with a critical eye and get clear about the active ingredients. Where are the pressures coming from and do you have control or influence over them? Is getting out the only real solution and is that even possible? If you find yourself waking at three every morning because your court commitments show no let up and you are dangerously close to a raft of filing deadlines, then something has to change. You could reach for the sleeping tablets (because they will make your sleep more resilient to stress) and you could resolve to take more work home (because that will reduce the backlog and so the stress). This will save you whining to the boss because she has enough on her plate, you’re a team player and you have your eye on partnership. You want to show a can-do attitude and, besides, your sense of self has always been of someone who delivers. Congratulations, you have been mis-sold resilience! Your solution might just work if it is only needed for a matter of days but that doesn’t sound to be the case. What you have done here is internalise the problem of an excessive workload as yours alone and come up with a, frankly, insane (but commonplace) solution. It

may be a simple matter of not taking on new clients for a while and passing the ticking files to other colleagues. It may even be the case that no one but you is preventing this. Sometimes the unreasonable boss is inside our heads. If, however, your assessment that nothing can be done is correct, then you need to think about what’s really going on. Who is all this sacrifice really benefitting? Is there enough in it for you to carry on like this? Resigning might be what you need to do but may not be a financial possibility until you find another job or career. This is where resilience really comes into its own. Resilience is what you need when you can’t change a difficult situation. It is what sees you through while you’re problem-solving. The mere fact of understanding the situation and seeing it for what it is will help you forebear. Remember the sifting exercise? Sometimes we will discover that the problem is indeed within our control. We didn’t prepare well enough for court and took home the persistent, corrosive feeling that we are being judged not good enough. There isn’t much to be done when we make a mess of things but resilience can combat futile and endless ruminating. It helps us forgive ourselves and get over it. Don’t buy into the passive-aggressive message that arrived with the resilience band wagon but do take all the help on offer – training, workshops counselling. It won’t all make a difference but some of it probably will. It will be a start at any rate. Eimear McAllister productivelawyers.com

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LAW SOCIETY NEWS

Diversity boost for legal profession

alented trainee lawyers are invited to apply for a place on the profession’s Diversity Access Scheme (DAS), the Law Society said as it opened recruitment for the 2019 cohort of scholars. DAS aims to help improve social mobility and diversity in the legal profession by supporting people who face exceptional social, educational, financial or personal obstacles to qualifying as a solicitor. To date the scheme has supported more than 200 aspiring solicitors to pursue their career ambitions. Law Society president Christina Blacklaws said: “To thrive, our profession needs committed solicitors from diverse backgrounds. The Law Society looks forward to welcoming up to 10 new trainees onto the Diversity Access Scheme to support them in realising their ambitions.

"I am enormously proud of previous alumni. DAS scholars have resisted coercion into arranged marriage, escaped oppressive regimes and achieved academic success while dealing with highly challenging disabilities. “I encourage any aspiring solicitor who is facing particular challenges on their way to qualification to consider applying for a place on the Diversity Access Scheme.” In addition to financial assistance to undertake their Legal Practice Course, the scheme offers awardees relevant high-quality work experience, a professional mentor and networking opportunities. DAS Awardee Peter De Biasio, who is doing his training contract with the Law Society under the scheme, said: “Growing up in a deprived area of south East London, hardly attending school, being dyslexic, occasionally finding myself in trouble

with the authorities, becoming homeless. All this meant I thought being the first person in my family to attend any form of higher learning was the furthest I might get in my education. “The DAS has provided me with not only assistance financially but also the essential confidence and reassurance required to demonstrate to myself I may be able to achieve things I would never have imagined. “I sit typing this from my desk as the (first) DAS trainee solicitor in the Legal Services Department of the Law Society. “I get to work on and be included in such matters as judicial reviews, Supreme court interventions and representation in cases the Society has been asked to be involved with, along with handling the internal legal queries and issues of the Society itself. I couldn’t have hoped for a better start to my career.”

UK lawtech not yet disruptive, new research shows

awtech in the UK has a long way to go if it is to reach its potential, the Law Society of England and Wales said as it launched new research into the development and adoption of sector-specific technology. In its Lawtech Adoption Report, the Law Society explores the UK’s burgeoning lawtech sector and highlights key developments in this area and what this means for the legal profession and the business of law. Law Society president Christina Blacklaws said: “A range of drivers is accelerating development and adoption of lawtech, from an escalating need for efficiency, increasing workloads and complexity of work to client pressure on costs and shorter turnaround times. “Some of the most notable growth areas are legal analytics, legal project management, governance and compliance and contract management. “Lawtech in the UK is largely focused on efficiencies and automation rather than on

delivering ‘new types of law’. As such it is less mature than other fields of digital disruption – such as fintech, where there is more funding and regulatory alignment.” The business-to-business legal services market is the most mature, particularly within large law firms, where AI and machine learning-driven applications are ubiquitous. Some of the more established areas include collaboration tools, document management, IP management and e-billing. The business-to-consumer legal market seems to be lagging behind. There is most traction in those law firms that are delivering large-scale commoditised services, where automation is principally all about driving efficiencies. For instance, chatbots, DIY law, robo-lawyers and triage tools are all becoming more common with a greater focus on the consumer experience. “Our research found that law firms face barriers to adoption of many lawtech solutions that are fundamental to the industry, such as risks around compliance, the partnership and billable hours models,” Christina Blacklaws said.

“After several years of start-up activity, the sector is now ripe for a wave of consolidation and later stage funding. Adopting and pioneering new technologies will give firms a strong competitive advantage in a rapidly evolving legal services market.”

About the Law Society The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law. Press office contact: Harriet Beaumont harriet.beaumont@lawsociety.org.uk Tel: 0208 049 3854

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EXPERT WITNESS SECTION

The rise of surrogacy and the need for DNA testing

urrogacy is now often in the news, fueled by both our celebrity culture and by increasing awareness of the possibilities afforded by a plethora of new technologies in assisted reproduction. In fact, surrogacy is part of “fertility tourism” where couples or individuals choose to travel to other jurisdictions with a view to accessing services which may be prohibited, not available or too expensive in their native land. Such treatments are reported to number between 20,000 and 25,000 events per annum worldwide. The desire for a child has developed into a significant business sector and with differing international moral/ethical perspectives, the law has evolved quite differently in different cultures, where attitudes towards surrogacy vary from altruism to pure commerciality.

child”, a fact that can only be established be use of a DNA test which is conducted by an MoJ accredited provider, such as Complement Genomics and dadcheckgold.

There are several reasons why couple may choose the surrogacy option, including; a) couples who cannot, for whatever reason, have their own children, b) same sex couples desirous of a biological relationship with a child or perhaps more rarely, c) by social choice. In the UK the woman who carries the child and subsequently gives birth to the child is seen as the child’s legal mother. If this surrogate is married or in a civil partnership, their spouse could also be a legal parent of the child. In England at least, surrogacy contracts are not capable of legal recognition, which means the arrangements entered into under a compensated (reasonable expenses only) surrogacy are no more than informal agreements that rely on trust for their execution on both sides. For the legal rights of the child to be transferred from the surrogate to the intended parents (who commissioned the surrogate notwithstanding that at least one of them may have a biological relationship to the child), an application for a parental order1 will need to be made within six months of the child’s birth. In doing so, the applicants are asked if they are “a genetic parent of the

• The intended parents of the child are considered to be the biological parents from the conception • The intended parents are specifically named on the birth certificate to the exclusion of the surrogate mother or any donor • The surrogate mother cannot by law keep the child after birth • A donor or surrogate mother has no parental rights over the child and no adoption of the child is required • There are no restrictions on the payments.

In terms of fertility tourism, the current preferred destinations are those where jurisdictions permit “paid for” gestational surrogacy and the intended parents can gain legal rights over the child. This may either be by gaining direct parental rights or by making use of streamlined adoption procedures. It is the case that DNA testing is often required by the home authorities to prove the parentage of one or both of the donors after overseas surrogacy, by use of either a paternity or maternity DNA test, or both. The Ukraine, Russia and Georgia have liberal laws regarding commercial surrogacy (including for foreigners) and are the current destinations of choice. Indeed, many UK couples are choosing the Ukraine2 since:

The progressive approach of the authorities in the Ukraine, Russian Federation and US has already helped many childless UK couples and the law is highly favourable towards surrogacy in these jurisdictions. For intending parents wishing to go down this route, then appointment of an experienced UK based solicitor and an accredited DNA testing company is essential.. Nicola Lowes, LLM and Neil Sullivan, MBA, LLM, PhD www.dadcheckgold.com To discuss DNA testing for a surrogacy case, please call 0191 543 6334 or e-mail: sales@dadcheckgold.com. Complement Genomics Ltd, the provider of the dadcheckgold service, is accredited by the Ministry of Justice as a body that may to carry out parentage tests as directed by the civil courts of England and Wales under section 20 of the Family Law Reform Act 1969.

Types of surrogacy “Traditional” surrogacy involves insertion of sperm into the fallopian tube of the surrogate mother, who by virtue of using her own egg, is the biological mother of the child. “Gestational” surrogacy, often referred to as in vitro fertilization (IVF), involves implantation into a surrogate of an externally fertilized embryo where the intended parents provide the biological material and of the egg and sperm both, either or neither of which may be from a donor. Importantly, the child and the surrogate mother are biologically independent of one another.

The written and informed consent of all parties and a notarised surrogacy agreement is required (and which can be complex), plus there is the presumption that the intended parents are married, so a translated and notarised copy of the marriage certificate is also necessary. For British parents using a surrogate in the Ukraine it is often more convenient to locally obtain a UK passport for the child once born, although proof of the genetic relationship to one or both of the intended parents is generally necessary. This can be arranged by contacting us using the details below.

Notes Form C51: Application for a Parental Order (Section 54 Human Fertilization and Embryology Act 2008). 2 Article 123 of the Ukrainian Family Code (as amended 22/12/2006, No 524-V) and Orders 24 and 771 of the Health Ministry of Ukraine. 1

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EXPERT WITNESS SECTION

Network Rail lose appeal in Japanese Knotweed case

On the 3rd July 2018, the Court of Appeal handed down its judgment in the case of Williams & Waistell v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514, and in doing so set a landmark legal precedent for the control of Japanese knotweed.

Decision of the County Court he County Court judgment was the result of private nuisance claims filed in 2015 against Network Rail by Mr Robin Waistell and Mr Stephen Williams. Neighbours Waistell and Williams, who own adjoining semi-detached bungalows in Maesteg, south Wales, had argued that Japanese knotweed on neighbouring Network Rail land was causing an actionable private nuisance by (1) encroaching upon their properties; and (2) by being within seven metres of their properties, interfering with their quiet enjoyment of, and causing a loss of amenity in respect of, their properties by reducing their market value. The County Court found in favour of the Claimants. It was held that they had no claim on the basis of encroachment as there had been no physical damage to the property but that the mere presence of Japanese knotweed within 7 metres of their properties was sufficient to constitute private nuisance. The County Court awarded the Claimants compensation for the cost of treatment of the Japanese knotweed and the residual diminution in value to the properties. Grounds for Appeal Network Rail appealed the decision on a few grounds including that the presence of knotweed on Network Rail’s land within seven metres of the claimants’ properties was incapable of causing an actionable nuisance merely because it diminished the market value of the claimants’ respective properties. The Claimants cross appealed on the basis that as the knotweed had encroached onto a neighbouring property that owner did not need to prove that the knotweed had caused physical damage to the property for the encroachment to constitute a private nuisance. Dismissal of Appeal The Court of Appeal dismissed Network Rail’s appeal and upheld in most part the ruling made in February 2017 at Cardiff County Court, albeit on different grounds. Interference with Land’s Amenity Value The Court of Appeal held that the Claimants could not claim for private nuisance merely because of the diminution in the properties’ market value due to Japanese knotweed within 7 metres of the property. This is because the purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset, its purpose is to protect the land’s intangible amenity value which concerns landowners’ use and enjoyment of the land. Therefore, the Court of Appeal judgement found that the mere presence of knotweed in an adjoining property is not in itself capable of being an actionable nuisance, unless it threatens to encroach, or has already encroached. However, the Court of Appeal held that once encroachment or imminent encroachment is established damage is assumed and claimants can succeed in their claims for private nuisance and be compensated for both the cost of treatment and the loss of amenity caused by the Japanese knotweed. The Court of Appeal found that the loss of amenity value was the same as the diminution in value found by the County Court and upheld the award. The result of this case has far reaching consequences; it solidifies the fact that Japanese knotweed is an actionable nuisance for which damages can be claimed. This means its presence imposes an immediate burden on landowners who not only face the existing difficulties and expense of

eradicating Japanese knotweed from the affected land, but now also face the concern of being liable to others if their knotweed threatens to encroach, or has already encroached, onto another’s land. Charles Lyndon Solicitors Comment Charles Lyndon Solicitors, who acted for Mr Waistell said “hopefully now organisations like Network Rail will take their responsibilities seriously and remove the knotweed on their properties. As one of the few firms specialising in Japanese knotweed, we have successfully represented a huge number of clients affected by Japanese knotweed and ensured they are compensated for the cost of treating the Japanese knotweed and the impact of it on the value of their properties.” Japanese Knotweed Ltd undertook a Japanese knotweed property risk survey for the Waistell private nuisance claim and work closely with Charles Lyndon and other solicitors involved in knotweed claims. Expert Help is at Hand Here, at Japanese Knotweed Ltd, we provide expert knotweed consultancy and contracting, delivering surveys, treatment and excavation programmes throughout the UK. We have an in-house team able to help and support with knotweed legal issues. If you require Part 35 compliant legal knotweed reports with a detailed knotweed remediation plan, please contact us on 0333 2414 413 or email contact@knotweed.co.uk or visit japaneseknotweed.co.uk

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EXPERT WITNESS SECTION

Expert witnesses –impartiality and balance

n two recent but very different cases, there have been unusually strong criticisms of expert witnesses. They highlight the need for any expert witness to be seen to be independent and impartial and for their evidence to be balanced and not onesided. Evidence from expert witnesses plays a crucial role in determining many disputes in different fields. For example, in personal injury cases, evidence from a medical practitioner will be required. Or in a commercial action where there are technical issues in question, the court may need evidence from an expert in the relevant field. Without experts to explain the medical, scientific or technical matters, a judge may be unable to understand properly significant aspects of the case and make appropriate findings about them. In our adversarial system of litigation, it is for each party to choose and instruct their own experts and adduce evidence from them. A party will naturally want their own expert’s evidence to support their position. Therefore, a party will generally only produce expert reports and call as witnesses, experts whose evidence is going to help that party’s position. However, if an expert is not impartial or gives evidence that appears onesided, the evidence, although supportive of the party’s position, may turn out to be little or no worth, as demonstrated by two recent cases. Armstrong v ERS Syndicate Management Ltd – independence and impartiality The first case, Armstrong v ERS Syndicate Management Ltd, was a low value personal injury claim. The pursuers relied on the evidence of a medical expert with respect to the extent of their injuries. They were awarded damages based on that evidence. The defenders appealed, arguing that the expert evidence should have been found inadmissible or, alternatively, should have been given no weight. The main reason was that the expert’s independence and impartiality was questionable because he

had agreed to act of contingency basis, meaning that he would only get paid if the claims were successful. The Sheriff Appeal Court had little hesitation upholding this appeal and finding the expert’s lack of independence and impartiality rendered their evidence inadmissible. This resulted in the pursuers losing those elements of the damages awarded to them that were reliant on the expert’s evidence. Agilisys Ltd v CGI IT UK Ltd – balanced approach The case of Agilisys Ltd v CGI IT UK Ltd was a very different type of case. A commercial action in the Court of Session, it concerned the termination of a subcontract for the provision of information technology services to a significant public sector client. The parties, the main contractor and sub-contractor, were in dispute about a number of issues that boiled down, broadly speaking, to which party was in breach of its obligations and responsible for various delays. Each party relied on the evidence of an expert witness. Neither expert’s independence was in question. However, the judge, Lord Bannatyne, formed a markedly different view of the two experts and their evidence. Lord Bannatyne criticised the evidence of CGI’s expert witness in unusually direct terms. He stated: “I have come to the view that his evidence was one-sided. His approach was I believe not balanced. In addition for various other reasons I believe his evidence was not acceptable.” Over the subsequent eight pages of his opinion, the judge set out numerous matters that had led him to that conclusion. He highlighted, in particular, the expert’s failure to consider whether CGI might have breached any of its obligations. It is also noted that, on one occasion, when faced with the realisation during crossexamination that part of his evidence had not in fact helped CGI, the expert switched from one position to another. This was described as “highly unimpressive in the context of someone who is being offered as giving expert evidence.”

By contrast, Lord Bannatyne noted that Agilisys’s expert “looked at the responsibilities of both CGI and Agilisys” and was “prepared to make criticisms of Agilisys”, which he said were “examples of the essential balance in her approach”. Given his contrasting impressions of the two experts, it is unsurprising that, where their evidence differed, the judge largely accepted the evidence of Agilisys’s expert and rejected that of CGI’s. Conclusions Expert evidence is critically important to many cases. When that is the case, parties need to make sure they have experts whose evidence supports their case. However, as these two cases show, it is not enough to have an expert who will give helpful evidence. The expert must be independent and impartial and their evidence should be balanced and not one-sided. Otherwise, the expert’s evidence may be

given little credence or even, if the expert lacks independence, be held inadmissible. Ben Zielinski Senior Associate, Shoosmiths T: 03700 868127 Ben is an associate in our dispute resolution and compliance team. Ben specialises in commercial disputes and is based in our Edinburgh office. He is qualified as a solicitor in both Scotland and England & Wales. Ben advises on a wide variety of commercial disputes including, in particular, information technology and energy sector matters. Disclaimer The above text applies to Scotland. This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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EXPERT WITNESS SECTION

“The Rise of the Solicitors”… Just a thought! Phillip Taylor MBE reviews this year’s Bar and Young Bar Conferences 2018

o questions about it, of the many themes at this year’s Conferences, at the centre lurked the rise of the solicitor as both lawyer and advocate- to compliment the senior branch of the legal profession, of course. Themed as “All Bar None: Access… Development… Diversification”, the topics indicated current content and the approach of the Bar Council to our professional issues - the speeches were all good. Both events took place at the Connaught Rooms in London at the end of November 2018 to a well-attended, polite and receptive audience. The main Conference was chaired by Lucinda Orr who began proceedings introducing Andrew Walker QC, Chair of the Bar of England and Wales, for his annual address. As with all the main speakers, the speeches are available on the web, so this review looks at what the event achieved this year. Walker’s speech condensed much of what he has said throughout his year which has been quite successful for him and his team at a difficult time. Our keynote speaker was Lord Sumption, just before retirement. He gave an illuminating biography of his early years at the Bar, saying “I wish that I could say that I became a lawyer out of a burning desire to right the injustices of the world and help my fellow citizens”. He went on “There are lawyers who can honestly say that, and I take my hat off to them. My own motives were more mixed, more mundane and perhaps more typical. Top of the list, I am ashamed to admit, was money”.

So, let’s get straight to the real theme because he was followed by several ex-solicitors whose contributions were illuminating. We are noticing changes in way solicitors now work, by the advice they offer today as the lawyers whom clients first meet. The most revealing (and political) speech was delivered by Shami Chakrabarti, Shadow Attorney General (and ex solicitor). She set out some policy objectives for the next Labour government including a sustained attack on the way barristers are trained through the vocational course “racket” as she called it, to some applause which was generally muted throughout the day.

either side of the Brexit divide, and he never disappoints - he remains very much “our practitioner politician” when so many at the Bar leave once they reach Westminster.

from our sponsors “The Times”. It did sum up what we saw as a modest recognition that the Bar is changing, not just technologically, but practically in front of us.

The afternoon is always tiring but no-one was asleep – there was no booze this year! But that did not make much difference as the subjectmatter of the sessions, as always, is so relevant to our practices.

The role of the solicitor, and the Bar’s direct access continue to impact slowly for an altered client-base who seek different things in future. Whether that is with solicitors or barristers in the changed legal aid world we will wait to see. Do come next year and see what we get up to post-Brexit in a changed world!

The final discussion session reverted to our solicitor theme once more with contributions from Lord Justice Hickinbottom, HHJ Anne Molyneux MBE and Jonathan Ames

Phillip Taylor MBE

David Gauke, Lord Chancellor (and ex solicitor), who couldn’t stay long with us, like Shami, gave us a very civil service speech. Probably it was more relevant to solicitors, but he did announce that he would give us a little bit of extra money for legal aid to help the Young Bar, but not a lot if one is charitable. Of the 150 or so attendees there was not much to smile about including these Treasury crumbs of comfort although the Gauke money made that day’s press headlines. The stands were a bit thinner this time round, but it’s always good to see OUP and LexisNexis exhibiting new books and journals. Inner Temple maintained their excellent public relations record with their record on scholarships at their stand. What are called “break-out” sessions were all well attended in generally an even split of those attending what are, effectively, specialist areas to cater for what the Bar now does as highly specialist lawyers. The Attorney General, Geoffrey “The Voice” Cox, gave a particularly delightful speech ticking all boxes on

How to build robust relationships with your suppliers Regardless of the sector you are working in, relationships with your suppliers are essential to your businessâ&#x20AC;&#x2122;s health, reputation and growth. Lauren Lieser, account manager at Geodesys, discusses how to form relationships which are robust and last a lifetime. The selection and building of your supplier relationships is a continuous process that strives to balance your business needs with the needs of the supplier. In todayâ&#x20AC;&#x2122;s market, where businesses are consistently prospected, using people and organisations that you can trust and rely on to provide a high-quality service is of critical importance. Choosing a supplier can often be the toughest decision so look for one(s), where they can demonstrate expertise and longevity within the industry. Research the array of products the supplier can offer, compare them to competitors and invest time to meet with them. Price will always be a factor, but the cheapest provider is not always the right one so clearly define what it is you are looking for and do your research into what solution accommodates this need. At the top of the agenda for a strong relationship is communication. If this aspect of the process is neglected, then you could risk complications arising which will lengthen the transaction process and potentially be costlier. Having been an account manager for the past 15 years, I cannot emphasise the importance of the relationship being two-way. If the

supplier does not know about a certain issue, how can they assist in addressing it? Regular interaction will build a trustworthy relationship which allows for open and honest discussions on product and progress updates, as well as the opportunity to demystify regulation updates, compliance, etc. Geodesys hosts a series of topical CPD workshops at various UK locations throughout the year. These well-attended events provide a platform for our clients to hear from industry experts like Kate Faulkner, mingle with likeminded people and touch base with their account managers. As the relationship and the communication between the organisation and the supplier develops, you will find efficiency will improve and potentially increase operational value too. Offering feedback to the supplier is key in ensuring they can provide a service that meets your expectations and drives continuous improvement. Geodesys offers their customers for example, multiple mechanisms for gaining feedback including surveys, meetings and seminars, which helps us continually improve our systems and service. Conclusion

Developing good relationships with your suppliers is not a complicated process. Be communicative, tell them your needs and expectations, treat them fairly, be demanding and be loyal. Itâ&#x20AC;&#x2122;s that simple. Geodesys is a leading provider of conveyancing searches for residential and commercial properties throughout England and Wales.

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Book Review McGREGOR ON DAMAGES Twentieth Edition By James Edelman ISBN: 978 0 41406 415 7 Sweet & Maxwell/Thomson Reuters THE COMMON LAW LIBRARY www.sweetandmaxwell.co.uk ‘THE CANONICAL AUTHORITY ON DAMAGES’ -- NOW IN A NEW TWENTIETH EDITION An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, “The Barrister”

here are more than a few legal texts out there with lengthy publishing pedigrees, some dating back to the nineteenth century, yet forever current thanks to regular updating over the decades. Few though, are as venerable as this one. Yes, it is ‘McGregor on Damages’. As the classic work in this area of law, it continues to maintain its authority and clout in this new edition from Sweet & Maxwell’s Common Law Library. In the words of Lord Hoffman, who writes with touching candour, the foreword from Brick Court Chambers, it remains ‘the canonical authority on the subject.’ A formidable and eminently readable work, which now numbers almost 2,000 pages, it traces its lineage back to 1856 under the authorship on one John D. Mayne, who co-authored all but two of the next seven editions with Lumley Smith. By 1946, as Lennie Hoffman recalls, at least one reviewer remarked that ‘at any rate in living memory’ Mayne ‘had the reputation of being a horrible book.’ Presumably things must have improved a bit under the authors who followed – all the more so from 1961 onward, when Harvey McGregor -- a QC by 1980 -- became the book’s sole author and continued as such until the nineteenth edition of 2014, which sadly preceded his death a year later. It was he, whose first love was the law -- and elected Warden at New College Oxford – whose scholarship and verve elevated the book’s reputation as he proudly remained its sole author (not editor!) over the next eight editions. Now,’ says Hoffman, ‘the book passes into the hands, not of a team, but of a single editor, chosen by Harvey himself. The said new editor is James Edelman, a Justice of the High Court of Australia who, assisted by two expert contributors, presides over the updating of this volume. In the Preface he mentions Harvey’s wish that his life’s work would remain as a single person’s work rather than becoming the product of a team. ‘For him and for me,’ says Edelman, ‘coherence in the law is a paramount value… one of the core principles that I aim to maintain’. Referring to ‘Harvey’s greatest academic legacy,’ Edelman pays tribute to the

book’s coherence, its astonishingly comprehensive coverage and its incisive commentary. In a final word, James Edelman apologizes, oddly enough, for the book’s not having been written in gender-neutral language, ‘although all revisions and re-written parts have been.’ ‘The style of centuries past will be reduced or removed in future editions,’ he adds, ‘as the book is modernised and rationalized further.’ ‘For cryin’ out loud, guys!’ is all one can say to that. ‘Spare us yet another dose of the pernicious PC. We just wanna read about the law -- and use this brilliant book as a defensive weapon in the event of being…or getting… sued!” According to Hoffman, Harvey McGregor certainly weaponised his book you might say, as he lay ill in hospital in Edinburgh following a stroke. He placed ‘The Book’ on the table next to his bed “so that the medical staff can see I know about suing for negligence’. But we digress. Suffice to say, this book makes for compelling and even compulsive reading for many a practitioner and for that matter, any lay reader with a need-to-know mission to understand in detail the intricacies of damages, defined initially in the book’s introduction as ‘an award in money for a civil wrong.’ Also, and as you would expect, the book, being bang up to date, contains a wealth of references for further research. The date of publication is cited as at 13th December 2017.

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Why Quill’s software development team invests heavily in Interactive Documents By Julian Bryan, Managing Director, Quill

he legal profession is never static. With always-evolving legislation, increasingly demanding clients and growing numbers of aggressive competitors, change is never far afoot. To thrive in such challenging conditions, law firms rely more than ever before upon technology. One constant thread in this sea of change is the written word. You see, the law is all about the written word. Every single task performed by a solicitor involves the written word in some form. Law firms are documentintensive by nature and every fee earner is a content factory generating document after document as they progress through live matters, be it a client care letter sent to a new customer, completion statement in a commercial conveyancing matter, divorce petition for a matrimonial case, last will and testament for a private client or anything in between. It thus follows that the primary role of technology is to help legal practices manage the written word effectively. Software’s role is to apply as much automation as possible to generating, storing, transmitting and finding the written word including time recording throughout each of these stages. Speed and accuracy are absolutely essential. The quicker and easier it is to produce, save, share and locate this expanding library of documents, the better for everyone, from the lawyer who can concentrate on client-facing work thereby boosting earning capacity to the compliance officer who can plan for business continuity thereby meeting Code of Conduct obligations. Because of this, no legal software supplier can afford to be complacent about development. At Quill, software development is something we take really seriously and invest considerable resources in doing. We have 12 dedicated employees in our software development team. Led by our IT Director, Richard Salt, it’s their responsibility to research new technologies and industry trends then develop our applications in order to keep Quill at the forefront of innovation and enable our clients to control the written word to the best of their ability. Our R&D staff understand the pressures faced by today’s law firms and continually enhance our Interactive Cloud and Interactive Documents software – comprising case management, legal accounts and document management features – to empower them to work more efficiently, save administration time, spend longer earning fees, reduce operating costs and a whole raft of other benefits which drive both greater productivity (so your clients are happy!) and profitability (so your partners and investors are happy too!). With regards to the written word, Interactive Documents – our intuitive document management module – provides tight integration between

Interactive, Word and Outlook – called our Add-Ins – which allows you to spend your working day in familiar Microsoft applications with full links to Interactive’s database, templates and document store. Technology that constantly advances is a musthave tool for any forward-thinking law firm. Not only because of the productivity advantages delivered, but also for safety reasons. Without ongoing security patches and bug fixes, you’re vulnerable to the rising volumes of threats from hackers and cybercriminals whose sole purpose it is to disrupt (even ruin) your business. Software development, then, is a future-proofing promise that, whatever changes and challenges come your way, your software supplier’s got your back. At its core, our Interactive Documents gives unique integration between Interactive Cloud, Word and Outlook saving users re-entering data as a key, but by no means only, benefit. But more recently a myriad of new features have been introduced to Interactive Documents and we’re going to describe just a few of them here. We’ve created conversion to PDF and attachment as PDF functionality. As you’ll no doubt know, PDF is a secure file format. Documents of this type can’t be edited by recipients. In Interactive, it’s a one button task; job done. Using the Interactive Add-Ins in Outlook makes tasks such as this really straightforward. By simply hitting the ‘New Quill Email’ then ‘Attach From Quill’ buttons located in the top toolbar of Outlook, single or multiple documents can be attached as PDFs even if you haven’t previously converted files to PDF format. At this point, you haven’t formally logged in to Interactive itself either; you’re using the wellknown Microsoft interface instead which you’re at liberty to do all day long, should you please. We’ve established an entire series of document and precedent templates comprising everything from credit control letters and identification forms to requests to extend time and receipt of money acknowledgements. These templates are supplied as standard with Interactive Documents. You can also choose to set up your own bespoke templates, link to merge fields in Interactive then auto-populate content direct from your database. In the same vein, popular forms packs can be purchased too as an optional extra. Linked closely to Interactive, these forms offer even more auto-database population for documents related to each of the common steps in particular matters. This has to be one of the biggest draws of document management software – the ability to generate documents and letters in minutes. Where Interactive Documents is concerned, the same applies to emails. Ready-made email templates allow emails to be written, recipients selected from handy dropdown lists, documents attached and the entire communication saved straight back to case effortlessly, all from within Outlook itself.

In fact, you can even now do so from within Word. Auto-email the document you’ve been working on directly to the client, opposition, expert witness or any combination without switching between systems. Integrated attendance notes are another enhancement. Either when saving a just-completed document, receiving a document or later, the notes field permits the addition of attendance notes – that’s a description of discussions, meetings or events that have taken place – relating to that specific document. There are two main advantages of attendance notes. One, the important notes are logged both for future reference and to support your accompanying time record so there’s no chance of forgetting further down the line. Two, entering your attendance notes as you go along saves you an extra task and negates the need for double billing which assists with client satisfaction. Time recording generally is worth a mention. Our overhauled Interactive Documents lets you make time entries at various touchpoints when writing, uploading or dispatching case-related documentation and correspondence. With the ability to perform these stages quickly, you can record more units of time than the task has actually taken to bill clients appropriately for actions completed and boost chargeable time in the process. In other words, do less and earn more. These are just a few of many improvements to Interactive Documents. To refer to some others, you can set up calendar events from Word and Outlook with reminders to ensure defined milestones are met; maintain a full audit trail with version-controlstamped documents; assign colours, labels and preview before opening to locate the right documents with ease; access your cloud-stored documents from anywhere with an internet connection to become more mobile; tailor sub folders to your preferences so Interactive mirrors how you work; store unlimited quantities of documents, emails and images without taking up valuable space on your own servers; protect your vital records with industrial-strength security measures and in-built disaster recovery planning; and much, much more besides. The combination of these multiple features means you can run your legal practice competitively, with minimum support staff, at low cost. A ‘Lite’ version of Interactive Documents is provided as part of your Interactive licence fee. Alternatively, an advanced ‘Professional’ version is charged at just £17 per user per month for full integration with the Microsoft Office suite. Exploit our heavy financial investment in Interactive Documents without breaking your bank. The written word; sorted. 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 outsourcing services and software to the legal profession.

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hile I have no doubt Members of the Worcestershire Law Society are fully

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