Cambridgeshire Lawyer 100 Summer 2023

PRESIDENT’S PAGE

Michael Frape President of the Cambridgeshire Law Society

Wehave now completed our merger with Peterborough and District Law Society. We are delighted to welcome all our new members from Peterborough and surrounds to CLS and extend an especially warm welcome to Umrah Buckley and Sophie Scotcher, who have joined the committee as representatives for Peterborough and Small Firms and Sole Practitioners (respectively).

Our annual Legal Excellence Awards and Dinner were a great success with over 250 attendees at the event held at King’s College. Next year’s awards and dinner will be held

again at King’s College on Friday 19th April. You can read about the awards and dinner in this issue.

Our Diversity Network continues to prosper with an excellent panel discussion entitled Women in Law, which was held at Birketts and explored the challenges faced by women in pursuing a legal career lawyers.

On 3 July, we met with over 20 representatives of our member firms in order to understand better what they want from CLS. It was a very positive and productive meeting.

INFORMATION & EVENTS

OFFICERS

President

Michael Frape Ashtons Legal

Vice-President

James Allen Birketts

Treasurer

Gary Hanson

COMMITTEE MEMBERS

Barristers Rep

Joshua Walters Fenners Chambers

Career Development and Mentoring Officer

Jessica Mason Birketts

Corporate Partnerships Officers

John Wright Woodfines

Equality, Diversity & Inclusion Officer

Scott Smith Howes Percival

International Relations Officer

Melissa Barker Birketts

In House Lawyers Rep

Anna Mortenson Nichino Europe

Junior Lawyers Division Representative

Jonathan Dattani Woodfines

LEA Officer

Raina Victor Birketts

L&D Officer

Chris Hoole Appleyard Lees

Parliamentary Liaison Officer

Chris Thomas Appleyard Lees

Patent Attorneys Rep

Anwar Gilani Venner Shipley

Peterborough Rep

Umrah Buckley BSH Home Appliances

PR & Social Media Officer

Josie Beal Birketts

Publications Editor

Kate Harris Birketts

Social Events Officer

Joanna Cotgrove Ashtons Legal

Sole Practitioners and Small Firms Rep

Sophie Scotcher Myers Law

Website Officer

Charlotte Vallins Ashtons Legal Administrator

Penelope Harrington

MEETINGS 2023

Wednesday 11 October

Main Committee On Zoom

Wednesday 18 October

Management Board Committee On Zoom

EVENTS 2023

Wednesday 27 September

Menopause Webinar - Speaker Shirley Lane On Zoom

Thursday 28 September

Seminar with Temple Legal Protection

Details To Follow

FIXED RECOVERABLE COSTS

Kate Fox The Law Society Policy Adviser Civil Justice

Thesereforms have been in the pipeline for quite some time, but we now have sight of what the draft Civil Procedure Rules underpinning these changes look like. Based on the information available, practitioners are strongly encouraged to familiarise themselves with the rules and start preparing for these changes now.

Fixed recoverable costs set the amount that can be recovered by the successful side, from the unsuccessful side, in litigation. They already exist in many lower value personal injury cases but they are now being extended across the fast track (generally cases up to £25,000) and also into a new ‘intermediate track’ (generally cases up to £100,000). The fast track and the intermediate track will each consist of four complexity bands which correspond with a table of costs setting out the amount that can be recovered for the stage at which the case concludes. When allocating a case to a track and band, certain rules will apply such as taking into account the length of the trial and the number of expert witnesses needed.

There are some notable exemptions to the fixed recoverable costs, including, among others, cases related to mesothelioma, actions against the police, and damages claims related to abuse of children or vulnerable adults. A recent welcome development is the exemption for housing cases, albeit only for two years at this point.

The intent of the expanded regime to is to bring a level of certainty to the costs involved in litigation at the outset – moving away from the traditional method of applying a solicitor’s hourly

rate would, in theory, allow both parties to understand the costs consequences of taking the case to court. However, the Law Society is concerned that there are currently too many unknowns. There is a risk of satellite litigation being needed to provide clarity to issues such as banding allocation, and, of course, if there is a shortfall in the costs recovered from the costs incurred, it may be the clients who have to reach into their pockets to ensure their solicitor is paid for the work carried out.

No doubt we will be seeing an increase in commentary on the issue as the October implementation date nears, both in terms of the policy rationale behind the changes, but also around the practical implications for practitioners and their clients. Furthermore, we know that other fixed recoverable costs regimes are being considered, including for lower value clinical negligence claims. Collectively these reforms may pave the way for similar changes in higher value or more complex litigation further down the line.

Solicitors who have an interest in these reforms are welcome to send feedback to CivilJusticePolicy@ lawsociety.org.uk to assist with lobbying and influencing efforts.

Furthermore, the Law Society ran an event on 6 June to raise awareness of the changes and encourage discussion about what the impact may be on solicitors and their clients.

Civil litigators should be aware that a regime of fixed recoverable costs is going to be rolled out in October 2023 and will affect most civil cases valued up to £100,000.

THE VIEW FROM CHANCERY LANE

Michael Frape Law Society Council Member for Cambridgeshire & Peterborough

The Law Society’s Corporate Strategy 2022/2025

Like many entities over the last decade or so, TLS has had to invest huge sums of money to upgrade and transform its IT system. This has taken the best part of 6 years to complete, but has been a necessary part of making TLS fit for the future. In particular, the need to deliver a better member experience.

The focus of the relatively new corporate strategy launched last year is on member experience with the intent of growing the services delivered to members and the value of those services. TLS has a stated objective of growing its commercial income to partly fund that improved member offer.

TLS’ Corporate Strategy has four objectives, which are as follows:

1. We will promote the value of the profession and provide a compelling member offer;

2. We will protect the justice system and make sure it applies to everyone equally;

3. We will maximise our potential by growing our commercial reach, by being efficient and sustainable;

4. We will be an employer of choice for people who want to make a difference.

One can hardly argue with the first objective, but how many of your colleagues are aware of TLS’ member offer let alone ‘compelled’ by it? TLS is just one of many service providers in a crowded market seeking to serve the solicitors’ profession. TLS delivered a great amount of member value during the pandemic, but will now have to re-double its efforts to compete with other service providers. I am much more interested in the first part of this objective, which is to promote the value of our profession, something individual firms cannot do on their own. I think TLS do a good job on this point.

I do not think TLS can realistically hope to achieve the second objective. It is not

within the power of TLS to protect the justice system. That is a matter squarely within the remit of UKGov. As any court user will tell you, the justice system is falling apart at the seams. The best TLS can hope to do is to ‘seek to protect the justice system’, and even that, quite frankly, is probably a vain hope given the esteem with which many politicians in UKGov hold the legal profession and even the judiciary. As to the idea of ensuring that the justice system ‘applies to everyone equally’, the reality is that the severe reduction in the availability of Legal Aid (as a consequence of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) has created a huge amount of unmet legal need and people without any formal legal advice. Litigants without advice do not have equal access to the justice system as those with means to pay. It is regrettable but true that the scales of justice are increasingly weighed more heavily against the poorest, most disadvantaged and most vulnerable in society.

The question then is what can TLS realistically do to redress the balance? The answer is very little. For example, although the Legal Aid deserts campaign was successful in drawing attention to the absence of Legal Aid solicitors in many parts of the country, there is no sign in the Justice Department addressing the issue in a meaningful way.

As to the third objective, this is important given that TLS’ share of the practising fee income may eventually become voluntary. In that event, how many firms will decide not to be members of TLS? I would suggest a not insignificant proportion.

And finally the fourth objective, no one could disagree with this one, especially given the talent shortage faced by many employers across the country.

What’s the point of law societies?

This is a question easily posed, but not easily answered. In terms of TLS, that included regulation and the SDT, but regulation has long gone. In terms of local law societies, part of the answer was the provision of relatively inexpensive and locally provided CPD, but CPD ended in 2016. So what is their point?

For me, part of the answer is the role that law societies play in providing a collective voice on behalf of the profession in support of the rule of law. The rule of law is a rather nebulous, but very important, concept assuming that you want to live in a state upholding liberal democratic norms.

In its simplest form, the rule of law means that everyone is equal before the law. But it also includes concepts such as an independent judiciary and transparency of laws as well as providing a judicial system which is accessible to all in order to enforce their legal rights. Perhaps more controversially, the rule of law includes the protection of fundamental human rights.

The rule of law is in retreat in the western world including in the UK where legislation was tabled to water down the Human Rights Act 1998 (now withdrawn) among other things such as the severe reduction in the availability of Legal Aid. It is not safe to assume that human rights are entrenched in law and will remain in place forevermore. For example, many will have assumed that the battle for sovereignty over women’s reproductive rights had been won for all time the Roe v. Wade decision of the Supreme Court in 1973. Those citizens will have noted that they lived in a democratic country, which espoused liberal values and where the freedoms and rights of the individual trumped religious views on abortion. And they will also have noted that opinion polls consistently showed that a large majority of Americans were in favour of abortion rights. But they were wrong and a right-wing politicised Supreme Court overturned Roe v. Wade and now many US States have highly restrictive abortion laws.

Arguments are never won for all time, no matter how right the argument might be and how oppressive and wrong the contrary one is. If you want the UK to continue to have liberal, democratic values, you are going to have to fight for those values. A collective voice putting the arguments in favour of the rule of law and human rights again and again is indelibly preserving the type of society the majority of us want. And that (hopefully) is where law societies have an incredibly important role to play.

RESOLUTION TOGETHER - SHOULD YOUR FIRM BE OFFERING THIS?

Family law is undergoing a transformation. For the first time, couples can seek advice and support from one family law professional in relation to issues arising out of their divorce/separation in appropriate cases.

Thisnew way for family law professionals to work with couples, called ‘Resolution Together’, was launched last year by Resolution, a community of family justice professionals who work with families and individuals to resolve issues in a constructive way.

Some firms, including FM Family Law, have already adopted this ‘one lawyer; one couple’ approach, but it remains a developing area for family lawyers. For firms still considering Resolution Together as an appropriate addition within their own practice, we share the many benefits it has to offer as well as an overview of what it is and some helpful resources to explore.

Understanding Resolution Together

This innovative model follows ground breaking changes in the law which allows couples, for the first time, to make joint applications to end a marriage.

Resolution Together enables couples experiencing divorce or separation to consult one lawyer, obviating the need for each individual to retain their own legal representative. The 'one lawyer, one couple' approach involves a defined process designed to narrow differences between the individuals so they can reach an outcome which suits them and their family as soon as is practicable.

There is no prescribed format which firms must follow when supporting couples through a Resolution Together model, but Resolution provides a summary outline of how the process could be conducted. Typically, each client will have an initial individual meeting followed by a series of joint meetings that includes considering full financial disclosure (where relevant), providing detailed legal advice and facilitated discussions aimed at reaching solutions. Once an agreement is reached, it will be drawn up by the lawyer in an agreed court order. Where required, other relevant professional

experts (such as tax advisors or pension experts) can be involved.

Suitability of Resolution Together

Resolution provides comprehensive guidelines for lawyers offering the Resolution Together model, enabling them to assess its viability for individual couples. Some of the features which might be present, suggesting the Resolution Together approach is likely to be suitable for a couple, include:

• they are committed to working towards their own solutions amicably together

• they are willing to be open and honest with sharing all relevant information including financial or other required disclosure

• they are both emotionally ready and able to work together to solve problems

• they are both able to take part in the process and participate fully and freely

Conversely, features which might be present, suggesting the Resolution Together approach is not likely to be suitable for a couple, include:

• there is, has been or may be concerns about past or ongoing abuse within the relationship

• there is a safeguarding concern in relation to an adult or a child

• emotions are running high

• there is a significant imbalance of power within the couple that cannot be managed

• one or both clients will not provide all the relevant information needed

• one of the clients is, or feels, unable to make decisions freely

• there are legal or other complexities that will be difficult to address together with one lawyer

The advantages of Resolution Together

There are a number of benefits for couples in following a Resolution Together approach, such as:

• Cost effective - There is no duplication of work, and the fees can be shared and paid jointly by the couple.

• Tailored solutions - meetings are

entirely guided by the couple’s needs and designed to answer their specific questions.

• Limit conflict - by meeting with one lawyer together as a couple, information is shared at the outset. This promotes trust and confidence rather than starting from a place where separate lawyers are instructed which can feel oppositional.

Further information

Firms may wish to consider whether, in their own practice, the ability to be able to offer Resolution Together to clients would be a beneficial service although Resolution recognises that it may not always be appropriate depending on the individual practice, specialisms or client demographic.

Resolution has worked with the Solicitors Regulatory Authority to ensure that Resolution Together operates within current regulations and provides as much support and reassurance for lawyers as possible. There are plenty of resources available on their website (resolution.org.uk/resolution-together/) if firms wish to learn more.

There is also a full learning programme for Resolution Together offered through Resolution so their members can complete any learning they feel they need in preparation for supporting couples.

It certainly is an exciting time as we see how this new ‘one lawyer’ dynamic continues to develop with more and more disputes being resolved in this way

AUTHORS:

Fiona McLeman Managing Partner FM Family Law

Carla Morphett Associate and Practice Development Lawyer FM Family Law (copyright FM Family Law).

UPDATE FROM PARLIAMENTARY LIAISON OFFICER

Chris Thomas Trade Mark Attorney and IP Solicitor Appleyard Lees IP LLP

Consultation on Fixed Costs Regime

The Cambridge Law Society has recently participated in a consultation exercise carried out by the Law Society of England & Wales relating to the proposed amendments to the Civil Procedure Rules to extend fixed recoverable costs (FRCs) to most civil cases valued up to £100,000.

Draft Civil Procedure Rules amendments have now been approved in principle by the Civil Procedure Rule Committee (CPRC) on 31 March 2023. In summary these include:

• Extending FRCs to civil cases in the fast track (those cases valued up to £25,000 in damages that will last no longer than a day), except for housing cases, mesothelioma cases actions against the police and damages claims relating to abuse of children or vulnerable adults;

• Extending FRCs to a new Intermediate Track to include simple cases valued between £25,000 and £100,000 in damages;

• Introducing a new process and extending FRCs to noise-induced hearing loss claims.

The amendments will apply to Part 26, PD 26, Part 28, PD 28, Part 36, Part 45 and PD 45.

One of the features of the proposed amendments is that FRCs will be based upon complexity bands set out in the new PD part 45.

The intended in-force date is 1 October 2023 and will apply to claims issued after this date, or for personal injury claims where the cause of action

accrues after this date. The Law Society has advised practitioners to familiarise themselves with the proposed changes.

In the consultation exercise, concerns were raised by practitioners in relation to Access for Justice being affected by the introduction by FRCs and the risk of unreasonable conduct by parties increasing a claimant’s costs subject to FRCs. Nevertheless, the move away from cost budgeting was welcomed together with the certainty of costs this provided for potential claimants.

Specific concerns were raised relating to the difficulty with assessing complexity of cases by reference to their potential value at an allocation stage and the need to clarify the different banded costs.

A copy of the Guidance Note of the CPRC and the draft amendments to the Civil Procedure Rules are available at the following links:

www.gov.uk/government/organisations/ civil-procedure-rules-committee/ about#implementation-of-theextended-fixed-recoverable-costs-frcregime-october-2023

www.lawsociety.org.uk/topics/civillitigation/fixed-recoverable-costs

SRA published report on the Unreserved Legal Activities Market

Following consultation with a number of stakeholders including the Cambridge Law Society, the SRA has published an initial report into the market for unreserved legal activities. This is its first report, aimed at identifying the scope and size of the market and the views of key stakeholders on the potential issues

affecting consumers which may drive them to seek unregulated advice.

The unreserved legal services market accounts for approximately 6-8% of the legal market and is worth nearly £3 billion. The report indicates that the size of the unreserved market is likely to continue to grow and has cited cost and the more advanced use of technology in the unreserved market, as key factors in driving this growth.

Whilst consumers welcome the improved choice offered, there is a concern over the information that should be provided to enable consumers to understand when the advice they are being provided is regulated. At the next stage of consultation, the SRA will consider the implications of the survey and whether further regulation is required/ increased information needs to be provided to consumers to enable them to make an informed choice about the type of legal services being provided.

A link to the report is available here:

www.sra.org.uk/sra/researchpublications/understanding-unreservedmarket/

A summary of the news release is available here:

www.sra.org.uk/sra/news/press/ information-protection-small-businessunreserved/

If you have any comments or queries, or would like to be involved in providing feedback on behalf of CLS, please do not hesitate to get in touch with the CLS committee.

HAVE YOUR TECHNOLOGY CLIENTS LOOKED INTO THE PATENT BOX?

Anwar Gilani Partner Patent Attorney Venner Shipley, LLP

TheUK’s Patent Box regime offers a corporation tax rate of 10 % for profits from patented inventions. With businesses currently feeling the squeeze of higher costs and higher taxes - UK corporation tax rose from 19 % to 25 % in April 2023 - now is a good time for technology businesses to evaluate their Patent Box eligibility if they have not already done so.

The Patent Box was put in place in 2013 to incentivise the commercialisation of intellectual property in the UK, and HMRC estimates that around 1,500 claims were made in the 2020-2021 tax year.1

In contrast, the number of Research and Development (R&D) tax credits stood at around 85,000 in 2019-2020.2 Although many of the companies applying for R&D tax credits will not be eligible for Patent Box – for example, any company which has yet to generate a profit attributable to commercialisation of a patented technology – the disparity in these figures suggests that the Patent Box is not being used by many companies that would benefit from it. This may be especially true for companies in and around Cambridge given the large number of technology businesses in this area and given that the number of patents originating from Cambridge per 100,000 residents is far higher than the next nearest city.3

Eligibility

To be eligible for the corporation tax reduction a company must own or hold an exclusive licence to a granted patent (not a patent application; a granted patent) which has been granted by the UK Intellectual Property Office, the European Patent Office or a patent office of a European Economic Area

country. It is not enough for a company to own a patent or an exclusive licence to it; additionally, the company must have made a significant contribution in developing the patented technology.

Existing patents can be relied on for this purpose; it is not necessary to obtain a new patent especially for the purpose of electing into the Patent Box. However, if a company believes that they may be eligible, or may become eligible, to benefit from the Patent Box but does not hold a granted patent then the advice of a patent attorney should be sought to determine what patent protection may be available.

If a technology has already been commercialised without any patent protection then the opportunity to obtain a patent for that technology might have passed because a patent application can only be granted for inventions which are novel, i.e., which were not disclosed to the public prior to the filing date of the patent application. In this situation, the advice of a patent attorney should be sought to determine whether patent protection is still a possibility.

The process for obtaining a granted patent can be slow, however there are mechanisms for accelerating prosecution of a patent application. For example, the UK IP Office has a “Green Channel” for accelerated prosecution of environmentally friendly technologies and will consider reasoned requests for acceleration of patent applications which are not eligible for Green Channel treatment, and accelerated prosecution of European patent applications can be requested under the European Patent Office’s PACE procedure.

Profits made while a patent application is pending can potentially

qualify for the reduced corporation tax rate by electing into the Patent Box and subsequently making a claim once the patent application has been granted.

Qualifying income

The reduced corporation tax rate does not apply to all of a company’s profits; rather, it applies only to intellectual property income from exploiting patented inventions, for example from sale of products manufactured using a patented process or patent licensing income such as one-off licence fees or ongoing royalties. There are a number of factors to take into account when determining the qualifying income, and specialist tax advice should be sought for this.

Conclusion

The Patent Box provides the potential for a significant reduction in corporation tax for the many companies commercialising technologies in and around Cambridge. Although filing a patent application and prosecuting it through to grant is not a cheap process, and specialist advice will be needed in order to secure suitable patent protection and to deal with the requirements and procedures of the Patent Box, for many companies these costs will be more than covered by the reduction in corporation tax.

1 www.gov.uk/government/statistics/ patent-box-reliefs-statistics/patent-boxrelief-statistics-september-2022

2 www.gov.uk/government/statistics/ corporate-tax-research-anddevelopment-tax-credit/research-anddevelopment-tax-credits-statisticsseptember-2021

3 www.statista.com/chart/7943/the-uksmost-innovative-cities/

CJLD UPDATE

Jonathan Dattani Vice-President of the CJLD

Thevenue for this year’s ball is Churchill College in Cambridge and we will be raising money for both the Cambridge Rape Crisis Centre and the East Anglian Air Ambulance.

We will also have a raffle with the proceeds from the sale of tickets going to our chosen charities; we have had some fantastic prizes in previous years!

Our theme for this year is “Greek Summer”, with more details on this shortly…

The ball typically has 140 attendees, and we would invite you to encourage junior lawyers and other young professionals to attend for what is sure to be one of the best events of the year.

We are pleased to confirm that we at the Cambridgeshire Junior Lawyers Division have partnered once again with our friends at the Cambridge Young Professionals Group to host our annual charity ball on Saturday 16 September.

Further details on the ball, including ticket prices and other features of the event will be released in the coming weeks.

We look forward to seeing everyone dressed in their finest!

Should you wish to learn more about sponsoring the ball, or perhaps provide some prizes for the raffle, then please do reach out. We have different tiers of sponsor and are always grateful for any contributions to prizes.

In the meantime, our annual Pizza in the Park is set for Tuesday 18 July. This will take place at Parker’s Piece with epic amounts of pizza and other treats. There will also be rounders and other sports and games being played!

This event will be free(!) for members and only £5 for non-members, and we hope to see as many people as possible.

We always encourage as many of those in the legal profession (or considering joining the legal profession) to attend our events. We will happily speak with any firm or individual about what events we have lined up, the benefits of membership, what they can expect by being on our mailing list and how to become a member!

Please feel free to get in contact with regards to any upcoming events at cambsjld@gmail.com or if you have any enquiries about memberships and about sponsorships for the ball, please do get in touch with me directly at jdattani@woodfines.co.uk.

WHO’S WHO? SOPHIE SCOTCHER

Irecently joined Cambridge Law Society after Peterborough merged with Cambridge in June 2023.

I have taken on the ‘Small Firms and Sole Practitioners’ role on the communities sub-committee.

I have worked in Cambridgeshire since completing my law degree in 2010. I initially worked as an in-house Paralegal at a large tech company, ARM in Cambridge, specialising in Intellectual Property law.

I then moved to Hunt & Coombs Solicitors whereby I predominantly practised Family Law for just over ten years. In 2020 I joined HCR Hewitsons

where I worked closely with their London office to set up a family law department in Cambridge. This was an invaluable opportunity for me and, as a team, we built a strong family department which continues to service Cambridge today.

I returned to Peterborough in 2022 to work as a Sole Practitioner specialising in all aspects of private family law. Since setting up Myers Law Solicitors, I have gained a wealth of experience in working independently and seizing networking opportunities. It is, of course, sometimes difficult to balance a pressing caseload with compliance obligations, however, there is tremendous support from services such as the Law Society, SRA ethics helpline and Sole Practitioners Group. I have also found that maintaining friendships with former colleagues and peers has helped enormously (particularly as I am

no longer able to bounce ideas off other solicitors in a large firm setting).

Outside of work, I am the Secretary of the Peterborough Family Law Group and I regularly attend the Peterborough Bondholders’ events.

I also assist the Cambridge Anglia Ruskin University by providing probono legal advice via their Law Clinic in Cambridge. This is a great way to support the local community, and it aids their law students as they are able to observe real-life initial consultations between solicitors and clients first-hand.

Since joining the Cambridge Law Society, I have also been lucky enough to visit the new ARU Peterborough University alongside John Wright and Umrah Buckley, to discuss how Cambridge Law Society can assist their law students in the future.

Sophie Scotcher Sole Practitioners and Small Firms Rep

MOVERS AND SHAKERS

Kate Harris Legal Director Birketts

HCR Hewitsons welcomes new Partner and Solicitor to its Real Estate Team

Helen Mutucumarana joined the HCR Hewitsons’ Real Estate team as a Partner on 20 February 2023 where she complements the large team with her specialist experience in the life sciences, biotechnology, technology, media and emerging tech markets.

Described as an ‘exceptional property lawyer’ by her clients, Helen’s reputation for seamless service has enabled her to build a large client portfolio that covers a wide-range of the commercial property market including tech businesses, life-science organisations, charities, occupiers and landlords.

Philip Parkinson, Head of Real Estate at HCR Hewitsons said “Helen is an expert in her field and we’re so pleased to have her on board – her knowledge of tech in the Real Estate space is very exciting for us and we’re really looking forward to exploring that further and passing the benefits onto our clients.”

Becky Woodcock also joined HCR Hewitsons on 3 April 2023 as a Solicitor in the Real Estate team where she helps clients secure the property that best achieves their business goals, whether they are looking to secure a headquarters or a site for development.

Becky has experience across a range of sectors including life science, biotechnology, tech, charity and media which she complements with her specialisms in landlord and tenant matters, investment and leasing advice, and development agreements.

Inger Anson, Partner and Head of HCR Hewitsons in Cambridge said, “We are thrilled to have Becky joining the team. Her wealth of experience will not only benefit our offering locally in Cambridge, but it will perfectly complement our firm wide Real Estate team.”

Growth for HCR Hewitsons’ Commercial Team

In April this year Rebecca Quinn joined HCR Hewitsons as a Partner in its Commercial team and brings with her a wealth of experience from across the sector, having worked with worldrenowned academic and research institutions, national building and logistics contractors, and start-up enterprises.

Rebecca’s specialisms are varied, from commercial supply contracts to procurement and commercial advice on large-scale partnership projects. On joining the firm, she said: “I’m excited to be joining such a well-renowned firm as part of the Commercial team. I’m looking forward to providing clients with the advice and guidance they need to reach their goals.”

Head of Commercial at HCR Hewitsons, Robert Capper, said: “I’m delighted Rebecca has joined us. As an addition to the team, her experience will add to our already strong offering across a range of sectors.”

Howes Percival expands its Commercial Property Team

Howes Percival has added property Partner Susanne Hinde to its top tier Commercial Property Team in Cambridge. Susanne is a highly experienced commercial property

specialist who has a substantial reputation in the Cambridge market, advising Cambridge Colleges, biotech companies, leisure operators as well as charities and family-owned businesses. Susanne focuses on Landlord and Tenant and investment work and has been ranked in the Chambers Guide for the last 5 years. Susanne is Scandinavian and speaks everyday Danish.

On joining Howes Percival, Susanne said “Howes Percival has a fantastic commercial property offering in Cambridge and they have made a huge impact on the local market since opening in the city eight years ago. It is such a strong team, experienced at partner level across many sectors. The ambition is there to keep growing the team and with the ongoing expansion in life sciences, pharmaceuticals, biotechnology and engineering, the demand for space in the region is still very strong."

Fenners Chambers expands its Family Law practice

Richard Balchin joined Fenners Chambers in April 2023, bringing with him 24 years’ of experience at the Bar. He is described as a “hard hitting and highly experienced advocate with a strong reputation for providing both tenacious and robust advocacy with practical client-focused advice”

Richard has particular specialisms in Financial Remedies and Cohabitation cases and is a specialist Family Arbitrator and Deputy District Judge of the County Court and Family Court, as well as being a member of the Family Law Bar Association, the Court of Protection Bar Association and Resolution. He is also qualified to act on a direct access basis.

Here is a round-up of the latest moves, promotions and achievements of Cambridgeshire Law Society’s members…

LESSONS FROM A LEGAL LIFETIME IAN MATHER

It was a humbling experience to be presented with the lifetime achievement award from the Cambridgeshire Law Society in May. The cheers in Kings College Great Hall when it was announced felt very warm and meant a lot.

In this article I wanted to share some of the learning I picked up in my 36 years in private practice in Cambridge. Of those years, I spent 32 as a partner in three firms: Palmer Wheeldon, Eversheds and Mills & Reeve. During this time, I worked with many outstanding lawyers.

The two principals of my first firm, John Wheeldon and Dick Palmer, both sadly passed away some years ago. Both influenced my development and after Dick retired John backed me as the first ever Managing Partner of Palmer Wheeldon, aged 34. I was the youngest partner at the time.

John was a talented lawyer and former President of this Society. He was kind, fair minded and utterly ruthless with the red pen. Never would a letter (we wrote on paper then) leave the office unless the words were clear and precise.

Dick was a shrewd litigator and an outstanding manager of people. He was charming, generous and fun.

I

owe a lot to Dick and John.

Over the years, I benefitted from the experience of many others as well as from formal training, and of course, my mistakes! My top learning points are set out below. Hopefully some will resonate with you and help you with your own legal journey.

Know who you are

It was in the late 80’s that I first came across personality profiling. It is commonly used today, but in the late 80’s, wow, it blew my mind! I was at a conference when the presenter described, and acted out on stage, key personality types: The Analyst – great on

detail. Forensic to a minute degree. The Expressive – life and soul of the party. Keeps everyone happy. The Amiable –cares for feelings and looks after the team. The Driver – impatient to get things done and pushes projects along.

The acting was good – imagine the Driver meets the Amiable at the start of a meeting. Amiable wants to know about the Driver’s weekend. The Driver wants to get through the agenda. Bang! I realised why I annoyed some of my partners (and they annoyed me). I profiled as a Driver. One of my partners was an Amiable/ Analyst cross. No wonder we wound each other up. The solution was simple. I needed to respect his personality if we were to get anything done.

This level of understanding also works with clients. You need to recognise who they are before you can convince them over any course of action. Equally, it applies to winning work.

A further aspect of understanding your personality is to know who you need to add around you to create balance. I identified talented people with different personalities to work with. They filled in my gaps, and I theirs.

Law is a risk business

Whether advising on a lease, corporate deal or litigation the work of a lawyer is to assess risk and let the client choose their own path with the guidance of your crystal ball. To be effective you need to

understand their attitude to risk – which is likely to be different to your own.

Some years ago, I was pitching for the employment work of a fast-growing tech business. A key part of the pitch involved me explaining how the company should deal with a fairly complex employment situation. I explained I couldn’t begin to do that without some idea of their attitude to risk. I introduced them to my “pen of risk”. One end of the pen is blunt. That is the safe end. The place where, typically, public sector employers sit. They want minimal risk and accept the length of time and cost it will take to pursue action which is unlikely to end in a Tribunal claim. If they do end there the chance of winning is high. The sharp end is full of risk but speed is all important. Get it done and we will pay to pick up the pieces. This I termed as the football manager end. Facing relegation, the Board feel the need to sack the manager, to hell with the cost. Their desperation trumps caution.

I found most commercial businesses want to be in the space between the middle and the start of the sharp end and having identified how the company felt about risk I outlined a plan. I won the work.

My pen of risk had many outings and I hear it lives on in lots of workplaces. Do feel free to adopt it. I waive any IP rights for the greater good of lawyers.

Over the years

I benefitted from the experience of many others as well as from formal training, and of course, my mistakes!

Never tell clients what to do

Ask your client where they want to get to and then work out the best way to get there. You should lead them in a direction that you believe to be in their best interests, but telling is a step too far.

Early in my career I worked in crime. It was interesting at times but it didn’t pay and ultimately I moved onto my key area of practice, employment law.

I advised a client, who had an extensive criminal CV, that he had to plead guilty to a charge of burglary. He had done it and the evidence against him was strong. He left my office never to return. I found he had gone down the road to another solicitor who, I believe, gave him the option of going not guilty but he pointed out the risks and benefits of a guilty plea. He was led to the best solution. I lost the client but learned a lesson. This was an early introduction for me to the world of coaching.

The art of negotiation

I think most lawyers like to think of themselves as good negotiators. We understand the legal issues and have the quick brains to outwit the opposition.

Not so. I developed as a negotiator over the years and I came a long way from focussing on one narrow issue – usually money. So, my key thoughts:

Firstly, negotiations begin with relationship building. Build a rapport with your opposite number. As Dick Palmer was fond of saying – you catch more flies with honey than vinegar. Negotiations can get fraught so start from a base of, at least, civility.

Secondly, it’s not all about the money. Think hard and place yourself on the other side's hill top. What is important to them may be of low cost to you. Typically, in employment disputes this is an apology or a reference. In a corporate deal it may be giving a warranty against a risk that is tiny to you but big for them. Use that good brain to scope out all of the things the other side want – and that you want. Then trade.

Everything you write may be read out in the High Court

Of course it won’t be, but you should behave as if it will because it might. There is an intemperate flame mail in all of us but don’t let it out. It will never

achieve what you want and it could land you in deep water on the scale of embarrassment to career damaging. Rant to a colleague and then re do it. This sound advice was dinned into me from day one.

Manage people with respect

Encourage openness and accept mistakes happen which will grow legs if they are not dealt with. At one point, I was responsible for dealing with client complaints. Dealt with sensitively, they often go away. The client feels they have been listened to and it can even strengthen the relationship. The colleague gains relief from the burden of the error and, hopefully, learns from it.

Linked to this management style is the ability to teach by coaching. The Just Do It school of thought is useful if the office is on fire but as a way of developing people it doesn’t work. Help your colleague (or client) work out the best way forward with some guiding questions. They will learn quicker and the lesson will stick.

There is life after law

I was keen to retire from my legal career whilst I still felt there was something else I could do that would be different and enjoyable. To agree to do anything it had to be something I was interested in with people I liked and trusted. It is a good formula and, as well as doing some business consultancy work and continuing as Chairman at Cambridge Arts Theatre, I joined the board of Cambridge United. In 2019, I agreed to be the CEO for a season. Then Covid hit. I stayed for a second season and we won promotion to League 1 so I stayed for another season before returning to the board. I finished with a presentation on the pitch at the end of the season in 2022, to cheers from 5,000 fans. That was fun. Skills do transfer.

Being a solicitor puts you at the heart of key moments in the lives of many people. You make a difference. Enjoy the journey. I did.

Ian Mather Retired Solicitor, Director of Cambridge United Football Club and Chairman of Cambridge Arts Theatre.

CAMBRIDGESHIRE LAW SOCIETY LEGAL EXCELLENCE AWARDS 2023

Our annual Gala Dinner and Legal Excellence Awards took place on Friday, 21 April 2023 at King’s College, Cambridge.

Over 240 guests attended the dinner to celebrate legal excellence in Cambridgeshire. Michael Frape, President of CLS hosted the event and Nick Emmerson, Vice President of the Law Society of England and Wales presented the awards. Carrie Cuno, Head of Fundraising for the charity, LawWorks, spoke at the event and a charity raffle took place to raise money for LawWorks.

A special mention goes to Ian Mather, who was presented with the most prestigious award of the night, the Lifetime Achievement Award. Ian practised as a solicitor in Cambridge for more than 30 years and contributed significantly to its legal and business community. Ian has also been a great support for CLS and has acted as Chair of the Legal Excellence Awards Judging Panel in previous years.

Michael Frape, President of CLS and Chairman of Ashtons Legal LLP, commented that: “It is always a pleasure to celebrate the outstanding achievements of the legal profession in Cambridgeshire over the last 12 months and this year was no exception. It was a fantastic event, held at the prestigious King’s College, Cambridge. I was particularly pleased that we were also able to raise a substantial amount of money for the legal charity LawWorks, which we intend to match fund out of CLS money. Congratulations to all those who applied for an award, and to the worthy winners. Thank you to our generous sponsors and all our loyal members.”

For more information about CLS or for details of next year’s Legal Excellence Awards please contact admin@cambslaw.com, or follow CLS on LinkedIn, Twitter @cambslaw, or on Facebook and Instagram @cambslawsoc

It is always a pleasure to celebrate the outstanding achievements of the legal profession in Cambridgeshire over the last 12 months and this year was no exception.

MICHAEL FRAPE president of cls and chairman of ashtons legal llp

Ashtons Legal - Law Firm of the Year

Ian Mather- Lifetime Achievement Award

SPONSORS

CLS LEGAL EXCELLENCE AWARDS 2023 – AWARD WINNERS & HIGHLY COMMENDED

★ LIFETIME ACHIEVEMENT AWARD sponsored by Errington Legal

IAN MATHER

★ IN HOUSE TEAM OF THE YEAR sponsored by Appleyard Lees IP LLP

ARM LIMITED

highly commended: university press & assessment

★ BUSINESS LAW TEAM OF THE YEAR sponsored by FRP Advisory

HCR HEWITSONS LLP

★ PRIVATE CLIENT SERVICES TEAM OF THE YEAR sponsored by EBCam HCR HEWITSONS LLP

highly commended: birketts llp and buckles solicitors llp

★ PROPERTY TEAM OF THE YEAR sponsored by Handelsbanken BIRKETTS LLP

highly commended: howes percival llp & tees law

★ LITIGATION TEAM OF THE YEAR sponsored by Barclays SLATER AND GORDON

highly commended: hcr hewitsons llp and irwin mitchell llp

★ INTELLECTUAL PROPERTY/IT TEAM OF THE YEAR sponsored by AstraZeneca UK Ltd

J A KEMP LLP

highly commended: appleyard lees ip llp and venner shipley llp

★ CRIMINAL LAW TEAM OF THE YEAR sponsored by Fenners Chambers

FENNERS CHAMBERS

★ LAW FIRM OF THE YEAR sponsored by B+C LHH Recruitment Solutions

ASHTONS LEGAL

highly commended: hcr hewitsons llp and r costings limited

★ OUTSTANDING SUPPORT STAFF MEMBER sponsored by Birketts LLP

RACHEL STAFFORD, ASTRAZENECA UK LTD

highly commended: kayleigh-anne burt, fenners chambers and julia norman, buckles solicitors llp

★ TRAINEE LAWYER OF THE YEAR

DEBORA DORN, APPLEYARD LEES IP LLP

highly commended: jenny soderman, j a kemp llp and josephine davies-warner, irwin mitchell llp

★ RISING STAR OF THE YEAR sponsored by Temple Legal Protection

EMMA GEALE, MILLS & REEVE LLP

highly commended: joe greenstock, hcr hewitsons llp and vicki allen, j a kemp llp

★ SENIOR LAWYER OF THE YEAR

MATT CHUTER, ASTRAZENECA UK LTD

highly commended: inger anson, hcr hewitsons llp and andrew bentham, j a kemp llp

★ EDI AMBASSADOR OF THE YEAR

GURPREET LALLI, IRWIN MITCHELL LLP

Rachel Stafford - Outstanding Support Staff Member

Matt Chuter - Senior Lawyer of the Year

Emma Geale - Rising Star of the Year

Debora Dorn - Trainee Lawyer of the Year

Arm - In House Team of the Year

HCR Hewitsons LLP - Business Law Team of the Year

J A Kemp

- Intellectual Property/IT Team of the Year

Birketts LLP - Property Team of the Year Fenners Chambers - Criminal Law Team of the Year

Slater and Gordon - Litigation Team of the Year

HCR Hewitsons LLP - Private Client Services Team OTY

OUR CHARITY

The evolution of the drainage and water report

Launched in 2002, the CON29DW has become a key report in the array of searches conducted by conveyancers and property practitioners over the past 21 years.

Owned by The Law Society, the suite of CON29 searches covers enquiries of local authorities, residential and commercial drainage and water enquiries, and coal mining enquiries.

Pre-2002 drainage and water enquiries were typically included in the local authority search, with a limited amount of information made available to prospective homeowners about the location of sewer and water mains, whether the property was connected to mains, and who was responsible for maintenance and billing.

The dedicated CON29DW provided more detailed information for conveyancers and home movers and importantly created a more structured approach to what information was provided and the format of the report.

One of the biggest challenges with data is what to include and what not to include. As more and more data becomes available the temptation is to include it in reports as a way to reduce liability; the more information provided, the less comeback there is on the report provider. We see this debate playing out across the search industry as data providers add more information and data into reports, with many now running 40, 50 and up to 60 pages long.

The key is the interpretation of this data; distilling what conveyancers and homeowners need to know quickly and concisely so as not to delay the transaction.

The drainage and water industry had its own historic moment in October 2011 when private sewers serving more than one property and lateral drains that extended beyond the property boundary became the responsibility of the water companies. Up to that point responsibility for mapping these lay with the local authority and it is well-known and acknowledged in the industry that records are incomplete.

This can cause issues in two specific cases.

1) There are occasions where the report highlights a sewer running under the property with no buildover agreement in place. These can be consented to retrospectively however in some cases where the buildings or extensions contravene building control they may need to be altered or demolished.

2) Unmapped drains will not be on public records and therefore any personal or regulated search won’t pick up the issue or have the resource to resolve the query.

In such cases the provider will infer or insure the response; a situation that can result in inaccurate information being reported.

There are plenty of examples of properties which for all intents and purposes look as though they should be connected to the mains, which are in fact serviced by a cesspit or septic tank. In a recent example we were involved in it was easy to assume the properties would be connected to the proximate drain identified under the nearby road. Multiple regulated reports incorrectly inferred as much, however, both properties were served by septic tanks. By providing key, gold-standard upfront information on drainage and water connections and assets, the homebuyer can be empowered to either proceed or negotiate with confidence with anything that may emerge later on when ordering a CON29DW. No inferring, no insuring and most importantly, no ignoring!

The CON29DW through its various iterations since 2002 continues to provide, key information and reassurance for home movers and conveyancers. The current version answers all 23 Law Society standard enquiries covering issues as diverse as water Pressure, internal sewer flooding, method of charging, and any known pumping stations, as well as the identified sewer drainage and clean water connections.

It remains under review for relevance by The Law Society and the industry body Drainage and Water Searches Network (DWSN) who provides governance around data standards for 9 utility providers subscribed and as part of adherence to the DWSN Code of Practice, ensures that every CON29DW is covered by a minimum of £10m indemnity insurance… reassurance I would hope, that conveyancers and their clients are best served by obtaining the official CON29DW from their utility provider.

Jonny Davey is Head of Product and Business Development at Geodesys

REPLACING EXPERT WITNESSES: EXPERT SHOPPING OR GENUINE CONCERN?

A recent application to the High Court to replace two experts with one new expert has been considered by Mrs Justice O’Farrell DBE and provides useful insight to legal teams regarding when permission to change an expert witness will be granted and the documentation ordered to be disclosed.

Thecase relates to a fire at a retirement village in 2019 which almost destroyed the entire property, and the claimants seeking damages of over £40m in respect of alleged deficiencies in design and the construction of the property.

In this application, the claimants sought to replace two experts; one a Forensic Scientist, the other a Fire Engineer.

The court’s power to change an Expert Witness

In the judgment, Mrs Justice O’Farrell provides a useful summary of the relevant principles and discretionary powers the court has as was considered in the case of The University of Manchester v John McAslan & Partner and others [2022] EWHC 2750 (TCC):

i) The court has a general discretion to permit a party to change the identity of the expert on which it relies, pursuant to its specific power to control the use of expert evidence under CPR 35.4 or as part of its general case management powers under CPR 3.1(2).

ii) Such general discretion should be exercised having regard to all the material circumstances of the case and in accordance with the overriding objective.

iii) The usual rule is that the court should not refuse a party permission to rely on a new expert in substitution for an existing expert: Edwards-Tubb v JD Wetherspoon plc [2011] EWCA Civ 136 per Hughes LJ at [30]; Murray v Devenish [2017] EWCA Civ 1016 per Gross LJ at [15]-[16].

iv) Where a party requires the court's permission to rely on a new expert in substitution for an existing expert, the court has the power to give permission

on condition that the original expert's reports, containing the substance of the expert's opinion, are disclosed to the other parties and such condition will usually be imposed: Beck v Ministry of Defence [2003] EWCA Civ 1043 per Simon Brown LJ at [24]-[26]; Vasiliou v Hajigeorgiou [2005] EWCA Civ 236 per Dyson LJ at [29]-[30].

v) The justification for imposing a condition that the original expert's reports should be disclosed includes (a) prevention of expert shopping and (b) ensuring that the expert's contribution is available to the court and all parties, regardless of the instructing party: Vasiliou (above) at [29]; Edwards-Tubb (above) at [30].

vi) The court's power to impose a condition on the grant of permission to change an expert may extend to other documents containing the substance of the original expert's opinion but the court must be cautious about encroaching upon areas of privilege and consider carefully the potential value of such other documents; in particular, there must be a strong case to justify disclosure of solicitors' attendance notes: BMG (Mansfield) Ltd v Galliford Try Construction Ltd [2013] EWHC 3183 (TCC) per EdwardsStuart J at [28]-[32]

Changing the Forensic Scientist

The application to change the Forensic Scientist had not been opposed in principle by the Defendants. The Expert Witness has a serious illness which requires treatment and prevents her from continuing to participate in the proceedings. However, their position was that her earlier reports, opinions and investigation notes be disclosed.

Considering submissions from each side that on the basis that this was clearly not a case of expert shopping and a case of necessity due to the expert’s illness, there would usually be no reason to disclose all reports or other documents setting out her opinion.

However, because the Expert had played such a significant part in the litigation; leading an investigation at the property before it was demolished, interviewing a resident, and providing substantial input into the statements of the case, Mrs Justice O’Farrell stated that the court would order the disclosure of all reports and notes.

The reasons for this are:

 The expert’s documentation contained evidence of primary facts that would now be unavailable through any future inspection due to demolition of the property.

 If she had continued to act in the case, it is likely she would have referred to the documents and there would have therefore been a requirement to disclose them anyway.

 It is likely the replacement expert will be given access to the documents.

 In the interest of fairness and transparency, one of the defendant’s had not been involved in the dispute

in the early stages and therefore their expert did not participate in early investigations.

 Notes of the interview with the resident may include relevant information that would not have been included in their witness statement.

Changing the Fire Engineer

The grounds for changing the Fire Engineer were less clear and the defendants opposed the application because the expert to be replaced is qualified and available to give expert evidence at trial.

The reasons put forward by the Claimants across two witness statements include:

 The expert had relied on a colleague to carry out analysis with respect to sprinkler capability but was not a fire engineer. However, the Forensic Scientist had been able to cover this. And as this expert was being replaced, they wished to change the Fire Engineer.

 The considerable overlap of evidence from the Forensic Expert and the Fire Engineer.

 Concern that there was a conflict of interest from the Fire Engineer.

 The claimants do not have confidence in the Fire Engineer.

 The claimants accept that the three reports prepared by their Fire Engineer would be disclosed.

Whilst noting the legitimate concerns from the defendants, Mrs Justice O’Farrell granted the application to change the Expert Witness stating that:

“It is in the interests of justice that the claimants should have permission to rely on an expert in whom they have confidence.”

She ordered that the expert’s reports, draft reports, and any further documents in which the expert had expressed an opinion to be disclosed.

Learning points:

1. If the grounds for changing your expert are clear cut (such as illness) the court may still order the disclosure of documents if they contain information or evidence of primary facts that should be made available to all.

2. The court will accept lack of confidence in the expert as grounds for a change, but you will need to be clear of the reasons and be aware that all opinion provided by that expert will be disclosed.

3. If you are seeking to change your expert, provide as much clarity as possible regarding the reasons for the change.

USER SIMON BERNEY-EDWARDS.

THE OLD CLICHÉ THAT VARIETY IS THE SPICE OF LIFE APPLIES IN OUR WORK AS AN EXPERT…

The last few months have been particularly varied and interesting in terms of the matters on which I have been instructed as expert witness. I am fortunate to be assisted by an experienced team of forensic accountants which enables us to accept a number of instructions from large fraud investigations and professional negligence cases through to smaller matrimonial matters. Here are just a few of our recent cases highlighting what we found particularly interesting or challenging.

Instruction as party expert to assess a warranty claim and to determine the value of any loss arising

I was instructed as party expert by a transport technology company to review and give an opinion on a warranty claim arising in respect of buying a business in which the sale completed in 2021. I was instructed to review the completion accounts and to give a view on the warranty claim and the potential loss arising.

We reviewed the completion accounts and management accounting with particular reference to the recognition of income on the customer contracts. In our opinion the completion accounts materially overstated the income and there was a claim under the warranties.

Following the preparation and disclosure of our report and correspondence between the parties, the matter settled in favour of our client and therefore on this occasion avoided protracted and costly litigation.

A key challenge on this case was to determine an approach that enabled us to focus our review on the key contracts ensuring that our work was cost proportionate.

Instruction as an expert witness in a professional negligence claim against a firm of solicitors

The client, a business providing services in the construction sector, was involved in a professional negligence claim against a firm of solicitors, arising from the advice given in relation to

the corporate finance transaction regarding the disposal of the business. The company was claiming for a resulting loss, as the sale consideration was substantially less than was anticipated. I was engaged as party expert witness to give a valuation of the company at the time of the sale, which had taken place around 10 years earlier.

We prepared financial and market analysis looking at the information available at the time of the sale. My valuation considered the relevance of alternative methodologies and explored the value that an alternative purchaser might have placed on the company. Following the valuation, a joint report was prepared, combining our team’s findings with the findings from the other party’s expert who provided an alternative view.

The matter was settled just prior to the court hearing, in favour of our client. The lawyers said the work undertaken by us had placed the client in a good position to negotiate the deal achieved.

A key issue on this case was to assess the market value of the company at a point 10 years earlier and based on the information that would have been available at that time and so avoiding tainting my view with the benefit of hindsight.

Engagement to undertake a financial investigation following a whistleblower report

Following a report by a whistleblower, I was engaged to undertake a financial

investigation into the financial reporting, corporate governance and internal controls of a fast growing entrepreneurial business in the technology sector. The engagement required a rapid deployment of our Forensic Services team to complete the investigation, as the matter had a potentially significant impact on business operations.

We were appointed as forensic accountants to undertake the in-depth investigation, including a review of financial records, interviews of company staff, and the investigation of electronic records. Our Forensic Services staff were deployed from our Cambridge, Norwich and Birmingham offices alongside our forensic technology team, and worked on the investigation with the instructed lawyers. Our review initially identified over 240,000 documents; the team was able to refine these to a subset of 15,000 potentially relevant items that were included in our investigation.

FRP’s engagement was concluded – and a full report including recommendations issued – within 10 weeks. The client and instructing lawyers were pleased with the efficiency and thoroughness of our team’s investigation. Following the issue of our report the investigation was concluded and the company was able to share the executive summary with relevant parties.

The key challenge in this case was to sift through 240,000 documents and using search methodology to reduce the documents to a manageable number that could be reviewed by the team.

ONE IN FOUR PROFESSIONALLY WRITTEN WILLS NOW INCLUDE A CHARITABLE GIFT

Our latest survey of the Will-writing sector shows that solicitors and professional Will-writers are playing an increasingly important role in legacy giving.

The annual survey, carried out by independent research firm Savanta*, reveals that almost three-quarters (73%) always or sometimes raise the option of leaving charitable bequests in Wills to their clients.

Now almost a quarter (24%) of Wills handled by UK legal advisers include a donation to charity; showing steady growth and long-term change over the past decade, up from 16% in 2014.

good causes annually and funding vital charitable services.

Over a third (36%) of all solicitors and Will-writers say they always raise the option of a charitable legacy with relevant clients, while less than one in 10 (9%) say they never do so. Of those who don’t always raise the issue, more than one quarter (26%) say the most prominent reason is because they do not want to influence their client’s decision.

costs for generations to follow.”

When asked about the most common barriers to legacy giving for clients, solicitors and Will-writers believe the most common reasons are that they want to leave their full estate to their family (83%), that they have difficulty choosing which charity/charities to support (38%) or that it may cause/lead to dispute (38%).

Gifts in Wills are the largest single source of voluntary income for charities in the UK, raising £3.85 billion** for

Lucinda Frostick, Director at Remember A Charity, said: “When it comes to growing legacy giving, engagement and support from across the Will-writing community is crucial. This benchmarking study charts a continual rise in the proportion of Wills made through solicitors and Will-writers that include a charitable gift and that’s so important for charities that rely on legacy income. These donations may not arrive for some years yet, but they will fund vital services and charities’ core

Three-quarters of the firms in this survey (77%) have acted or assisted in the administration of estates that include a legacy to charity. Over half (56%) of those said they found charities easy to deal with. Only 13% indicated said they didn’t find charities easy to work with, with the top cited reason (22%) for that being that they communicate too often.

The average proportion of Wills made through solicitors and Will-writers that include a charitable gift.

NEW REPORT HIGHLIGHTS GROWTH  OF SCOTTISH LEGACY MARKET

A new report out today (Wednesday 21 June) highlights the growth and breadth of the Scottish legacy market for charities and underlines the importance of investing long-term in this fundraising stream.

TheScottish Legacy Market Report

2023* was produced by Remember A Charity, a consortium of UK charities working to promote charitable gifts in Wills amongst the British public, and Legacy Foresight, the UK’s legacy and in-memory sector specialist analysis firm. The report brings together key statistics on the Scottish legacy market, as well as insights

and recommendations from legacy experts at charities, such as CHAS, Worldwide Cancer Research, Children in Scotland, Cancer Support Scotland and SCOTLAND: The Big Picture, to help those at the start of their legacy fundraising journey.

The report shows:

• the connection supporters feel to good causes continues to grow along with a rising interest in legacy giving.

• 42% of Scots aged 40 and above say they would be happy to give in this way and 21% have already done so****.

• Legacy giving to Scottish charities is showing a year-on-year rise, with the latest data from SCVO showing that it reached £136m in 2020/2021**.

• Legacy income accounts for one fifth of all money donated to Scottish charities annually**.

• Almost half of all Scottish charities’ legacy income goes to Scotland’s top 50 charities, who received £66m in 2020/21, with the biggest share going to health causes****.

• Some 500 Scottish charities of all sizes are named in Wills each year*****.

Lucinda Frostick, Director at Remember A Charity, says: “In the costof-living crisis, money is tight for charities and supporters alike. But in many ways, this brings us all closer together, with people being acutely aware of the need for charitable services and wanting to support the causes they care about. As legacy giving has little or no upfront cost while offering the potential to achieve a better future, we’re seeing appetite for giving in this way reach record levels. Legacies offer a huge growth opportunity for Scottish charities.”

Kath Horsley, Director of Insight at Legacy Foresight added: “The fundraising market is becoming increasingly challenging and competitive but for those charities who continue to invest in legacy fundraising it remains

resilient and we continue to see legacy income on an upward trajectory. Whilst the Scottish market is relatively small, it is clear that Scotland is on a similar trend to that of the UK as a whole, and the forecast for charity legacies remains promising.”

Mark Docherty, Legacy Manager at Worldwide Cancer Research, added: “Legacy income is really crucial for us, accounting for about 20 per cent of our income and the majority is unrestricted. Whilst some other income sources have gone down over recent years, legacies have remained resilient, boosted by the housing market. Legacy fundraising is such a good investment that it’s critical to keep going – working in today’s storm will enable us to take care of those that follow.”

Gifts in Wills are the largest single source of voluntary income for charities in the UK, raising almost £3.9 billion** for good causes annually and funding vital charitable services. Whilst Scotland’s legacy market is younger than that of England and Wales, it is seeing considerable long-term growth, with hundreds of charities of all sizes now being named in Wills each year, funding vital services across Scotland.

The Scottish Legacy Market Report 2023 includes data, insights and top tips for charities embarking on legacy fundraising and is available to download from rememberacharity. org.uk and legacyforesight.co.uk at www.rememberacharity.org.uk/ media/uo2duoee/rac_scottishlegacy-market-report-2023_aw_ digital.pdf

IN THE COST-OF-LIVING CRISIS, MONEY IS TIGHT FOR CHARITIES AND SUPPORTERS ALIKE. BUT IN MANY WAYS, THIS BRINGS US ALL CLOSER TOGETHER, WITH PEOPLE BEING ACUTELY AWARE OF THE NEED FOR CHARITABLE SERVICES...

LUCINDA FROSTICK

PARENTAGE VIA SPERM DONATION AND THE MATTER OF “CONSENT”

Dr Neil Sullivan

The donation of sperm or eggs is a very laudable social service and demand in the UK is increasing1, albeit, sperm is in short supply for artificial insemination (AI). The service can be carried out by one of the many reputable licenced clinics recommended by the HFEA which regulates their activities and gives a great deal of clarity about consent and responsibilities towards children created from the donor sperm

There are, however, shocking and indeed harrowing stories about sperm donors who have fathered multiple children and we would like to explore some of the issues. The cause of disquiet is the very real possibility of inbreeding (a genetic abnormality arising from inadvertent half-sibling reproduction as the result of a common father – the genetic term is consanguinity), incest and psychosocial/emotional issues in donor children. Consent, if it has been given, is often far from informed.

A recent case involves a musician in the Netherlands who has been accused of fathering more than 550 children from his “donations” which were offered via social media and to a significant number of clinics, of which 11 were in the Netherlands. The court in The Hague has recently found against him in a case brought by one of the mothers and the charity DonorKind.eu, on the basis that he lied to the clinic/mothers about his history and activities; had they known, they would not have chosen him as a donor. This judgement of preliminary relief will deter him from making further donations3. These mothers are now faced with an extraordinary extended network of half-siblings.

There have been many other circumstances of sperm donors fathering multiple offspring, both

consensual4 and adversarial5. In the latter instance there have been multiple cases of doctor-donor conceived children in the US, with fertility fraud being documented on websites such as donordeceived.org and even Netflix6

Many people feel it is important to know their origins, as it gives them both identity and helps them make sense of their being. The UK took a giant step in this direction on 1st April 2005 when individuals became able to identify their sperm donor, upon reaching the age of 18 (from this year, 2023). This was a result of studies which acknowledged the need for individuals to know the identity of their biological parents and which followed up the International Convention on the Rights of the Child, adopted by the UN General assembly in 1990. This shift from anonymous to open identity sperm donors has been replicated in other countries, nearly always with limits placed on the number of times a particular donor sperm can be used. In the UK, this is 10. In the Netherlands, this is 257. For the genuine sperm donor and child relationship open identity is seen as a very positive circumstance. Donors are on a registry that can be accessed by the child via the HFEA, if wanted, and many people find surety in knowing their biological as well as their social father. More difficulty arises in cases of fertility fraud, where a quest to find the biological parent

has often resulted in the discovery of many half-siblings. The psychological and social effects on the individual are rarely taken into proper consideration and indeed, as these situations evolve, are probably not yet fully understood. There is in fact no evidence for the choice of this number relating to how many times a donor can be used and the number chosen by each country is arbitrary8. The primary concern seems to be the possibility of genetic disorder, which though significant is in fact less than that of a first cousin mating (taboo in many countries but not the UK or indeed to Charles Darwin himself) but in our view, more concerning is the psycho-social impact of such a large number of siblings on the individual, which after all, is unprecedented in any human society.

DNA testing technology using broad brush ancestry services (Direct to Consumer) has enabled half- siblings to discover not only anonymous biological fathers, but possible other half-siblings – the use of a precision DNA test to determine the true family relationship (always recommended) enables this to be confirmed with a reliable statistical probability9. Data indicates that from use of these tests, the discovery of nonparent expected (NPE) events (that one or more parent is not biological) ranges from 4-12 %. Whilst there are of course other explanations, one of these is that

social parents have not discussed with the child the circumstances of their conception. The evidence suggests10 that donor conceived children often have difficulty (often seeking help) coming to terms with; a) the nature of their conception, b) the efforts to find a biological parent and c) their reaction upon hearing about it. This is particularly acute if they discover that the father has sired many children.

Regarding consent, then the DNA testing technology that is now available for tracing biological relatives was not available when many of the donor conceived children were actually conceived. As we know it now, informed consent would have been impossible at that time and many of the issues since raised are very new to science, society and law. Genetic technology is changing fast and information is coming to light so quickly, that it is impossible to give informed consent in the present (informed consent has only even been relevant in the precise time window it is given, and can only be based on the state of knowledge at that precise time). By sequencing individual

human genomes, we can reveal information relating to genetic disease that was unknown; sometimes these are late onset disorders and/or could not be known or predicted at the time of conception. Other times, we (or more specifically the direct-to-consumer client) will have the genetic information and either not know or be in a position to know how it relates to disease or the prediction of characteristics. The fact is of course, that we are all genetically pre-disposed to something, as much as we can be genetically protected from the very same things.

Donor conception is a delight to many – but the emergence of fertility fraud has raised several important questions, for which there are simply not enough informed counsellors. Maybe, given the vast data sources, artificial intelligence (AI), has a role to play in AI after all.

Notes

1www.hfea.gov.uk/about-us/publications/researchand-data/trends-in-egg-sperm-and-embryodonation-2020/

2www.hfea.gov.uk/choose-a-clinic/consent-totreatment-and-storage/ 3nltimes.nl/2023/04/28/court-orders-sperm-donor550-kids-stop

4www.theguardian.com/science/2018/nov/24/ sperm-donor-man-who-fathered-200-children 5www.nbcbayarea.com/investigations/doctorsperm-donor-cases-fertility/3148093/ 6www.netflix.com/gb/title/81227735; https:// donordeceived.org/ 7doi.org/10.1016/j.fertnstert.2007.06.020

8doi:10.1093/humrep/deq038

9dadchecksilver.com/sibling-tests/ 10bioethics.hms.harvard.edu/journal/donortechnology

About the author:

Dr Neil Sullivan, BSc, MBA (DIC), LLM, PhD is General Manager of Complement Genomics Ltd (trading as Dadcheck®gold).

Complement Genomics Ltd (trading as Dadcheck®) is accredited by the Ministry of Justice as a body that may carry out parentage tests directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969.

Please see: dadcheckgold.com

Tel: 0191 543 6334

e-mail: sales@dadcheckgold.com

PII UPDATE: LOOKING AHEAD TO THE OCTOBER RENEWAL SEASON

Brian Boehmer Partner Lockton

Thevast majority of leading participating insurers have an appetite to actively grow their respective portfolios with the addition of new business. Furthermore, new capacity is set to enter the marketplace before October, meaning firms with a desirable profile are going to have even more insurer options available to them at this year’s renewal.

If we reflect briefly on what happened in the now well-populated recent spring renewal season, although a proportion of insurers did wish to increase rates – albeit more modestly than they have in recent seasons – the majority of insurers’ rates plateaued. This is a reflection of the positive dynamics within the PII marketplace, with more active competition for business. Extended policy periods also returned to availability, albeit in limited number. Nonetheless, this signals a sea change to recent years.

The one slight frustration of the spring renewal season was premium financing, with costs of borrowing increasing throughout the period, largely as a result of macroeconomic factors. Finance providers were also strengthening their due diligence processes, adversely impacting the speed of decision-making and processing of loans. We anticipate that the due diligence process will become even more stringent as we move into the October renewal.

With the likelihood of the emergence of new insurer capacity on the immediate horizon, coupled with an increased appetite among insurers already active in the market, well-run practices can expect a softening in the rates charged come October. What is not yet known, is how diluted rates will become. We also expect extended policy periods to become more readily available, with insurers once again offering the choice of up to 18 months for a portion of their portfolios.

Without wishing to dampen the positive tone of this update, the one caveat to give is that the dilution of rates doesn’t necessarily mean that there’s set to be a dramatic reduction of premiums. For many firms, rising inflation has fuelled an increase in fee income, which will naturally have an

As we rapidly approach the summer and the halfway point in the 2023 calendar year, I am pleased to advise that there is cause for optimism amongst well-run firms with regards to PII market conditions as we look ahead to the October renewal season.

impact on the premiums charged by insurers. It does mean, however, that for well-run and successful practices, the cost of PII premiums should not erode profit margins further, as it may well have done at recent renewal periods.

It will be of no surprise that the softening of rates may not positively impact the entire legal profession of England and Wales. This is particularly true of practices that have experienced an adverse claims position, and those that are heavily involved in perceived higherrisk practice areas. Practices should not be complacent, and cannot expect premiums to fall without any effort on their part. I cannot stress the importance in providing your chosen representative(s) with the appropriate evidence to share with the underwriters, in order to justify applying positive price corrections.

To capitalise on the improving insurance market conditions, our recommendation to you would be to commence the renewal process early. Most importantly, take the time to prepare a quality presentation that provides a positive reflection of your practice. As Lockton have advised countless times, this is your shop window for insurers, so use the opportunity wisely. It is prudent to remember that approximately two-thirds of the legal profession of England and Wales renew at the end of September, so you will be vying for the attention of the underwriting teams along with a substantial number of your peers.

Whilst insurers have an increased appetite for business, their underwriting teams will only have a finite amount of time to undertake their risk assessments. With that in mind, make sure your practice stands out from the crowd. Should you have experienced claims, provide a narrative of the situation, along with detail of what measures you have implemented to prevent their repeat. Simply stating that the fee earner responsible for the claims is no longer with your firm, is not necessarily what insurers are looking for.

I encourage you to use this opportunity to help your chosen representative(s) to educate insurers about your firm, what

you do, and how you do it. Consider the fact that specialist underwriters are not solicitors, and although they will understand risk and the ramifications of any mistakes, they may not understand the intricacies of your specialism entirely. At the same time, no two practices are identical, so articulate why you are better. As they say, perception is not always the reality – an underwriter could always form an opinion which is incorrect. And once opinions are formed, they are much harder to change.

In terms of timescales, we recommend providing the presentation at least six, but preferably eight weeks in advance of your renewal date. Begin exploring finance options much earlier in the process than you have done so previously, given that the process is longer, and you may need to shop around to get the most favourable terms.

Choose your representative(s) wisely, acknowledging the fact that it would not be advantageous to scatter your presentation across the marketplace, as this may dilute the work that you have done to present your practice in a positive light. There is a possibility that your representative may not be able to reach all of the active participating insurers directly, and this may well result in you not being able to achieve the optimum solution possible for your practice. Before selecting your representative(s), establish which insurers that they can approach directly on your behalf. You will not truly benefit from an improving PII landscape should you inadvertently exclude half of the active participating insurers.

Finally, as long-term supporters of the Cambridgeshire Law Society, we would welcome the opportunity to canvass the market for all members, or as a minimum provide each of you with a second opinion. We have direct access to more active participating insurers than any of our peers, and will have insurer solutions that your current representatives cannot provide for you.

I do hope that you take up this offer, and wish you all the best.

E: brian.boehmer@lockton.com www.locktonsolicitors.co.uk