D&DLS Bulletin Derby & District Law Society www.derbylaw.net
Oct / Nov 2023
Hola, Derby! DDLS successfully launches Tapas Thursday… Picture gallery on pages 16-17
Also in this issue:
Charity Bake-Off • Past President’s Dinner • Franklin & Co are 40!
Silver Patrons of the Society
Gold Patrons of the Society
D&DLS Bulletin Oct / Nov 2023
Derby & District Law Society
Contents 3 - Contents & Editorial
16 - Book Review
4 - List of Officers
16 - Ban on ‘no-fault’ evictions may be in vain
5 - President’s Page
18 - Understanding charity beneficiaries
6 - Council Member’s Report
21 - Access to justice undermined
8 - DDLS Charity Bake Off 2023
22 - Expert Witness Institute urges removal of new intermediate
8 - Derby Junior Law Society – Committee Update
track rule in civil claims cases
10 - Franklin & Co. is 40
24 - When your expert costs you money!
12 - Family Law Committee meeting
26 - The use of DNA testing in legal practice
13 - Past President’s Dinner
28 - Cyber security is not a luxury, but a necessity
14 - Tapas Thursday Networking Lunch
30 - The Importance of Family Tree Verification
Editorial Autumn arrived with a celebration of Tapas and largely due to Oliver’s hard work an amazing networking event that was attended by representatives of 18 local (and not so local) firms and companies from varied business background. The write up is on page 16 and 17. The next Tapas Thursday is 11th January 2024 – make a note in your diaries. I was pleased to be invited to join Franklin & Co celebrate their 40th anniversary. The write up is on page 10 but it is important to see that DDLS does represent firms from all corners of Derbyshire plus East Staffordshire. If you know of firms who would like to join please let me
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have details and I will make contact with them. With membership in mind you will be getting an e-mail about changes to the structure of DDLS membership, if you have questions or comments about the changes then please do get in touch. You may have noticed that I have been growing our following on LinkedIn and it is definitely the best place for up to date news, job opportunities, events and write ups but please also check in with the website www.derbylaw. net which has more detailed write ups and photos etc…. I am pleased to say that I have 10 teams entered into the Derby Schools debate competition and two new judges have stepped forward – thank you. The debates take place 4.30-6.30pm on Wednesday afternoons in the Spring term at
Advertising Simon Castell Managing Editor Julia Saunders
the University of Derby Law School on Agard Street and different lawyers judge each week so it requires a two hour commitment. Please e-mail me if you are interested in helping out and I will add you to my list. The nominations for awards at the Annual Awards Dinner will be open soon and I will e-mail out forms. We are extending the categories for awards this year and if anyone would like to sponsor an award or has a contact who might be interested then please let me know. I look forward to seeing you at an event soon. Take care. Julia Saunders admin@derbylaw.net 01283 734989
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Officers and Committee Members for 2023-24 Officers President* Oliver Maxwell Nelsons 01332 378696 oliver.maxwell@nelsonslaw.co.uk Vice-President* Tina Attenborough Attenborough Law, Derby Tel: 01332 558508 tina@attenboroughlaw.co.uk Immediate Past President* Manesha Ruparel Alexander & Co Solicitors LLP Tel: (01332) 600005 mr@aandco.co.uk Deputy Vice-President* Lucy Tissington lucy.tissington@familylawgroup. co.uk Honorary Secretary* Fiona Apthorpe Geldards LLP, Derby Tel: 01332 378335 Fiona.Apthorpe@geldards.com
(* = Ex-Officio) Parliamentary Liaison Officer Julie Skill, Elliot Mather LLP Chesterfield Tel: 01246 231288 julie.skill@elliotmather.co.uk
Other Committee Members Julie Skill, Elliot Mather LLP Chesterfield Tel: 01246 231288; julie.skill@elliotmather.co.uk Tina Attenborough tina@attenboroughlaw.co.uk Felicity Coats felicity.coats@elliotmather.co.uk Andrew Cochrane Flint Bishop, Derby Tel: 01332 340211 andrew.cochrane@flintbishop. co.uk Diana Copestake Freeth Cartwright LLP Tel: 0845 2725674 diana.copestake@freeths.co.uk
David Hardy Tel: 01332 842008 david.hardy1630@gmail.com Natalie Haydon-Yeung Geldards LLP 01332 331631 natalie.yeung@geldards.com Martin Salt martinsalt@ johnmlewis.co.uk Tel: 01773 540480 Claire Twells claire.twells@smithpartnership. co.uk
Derby Junior Lawyers John Ellis john.ellis@aandco.co.uk
Sue Jennings Tel: (M) 07946 609436 s.jennings@derby.ac.uk
Laura Matthews laura.matthews@geldards.com
Treasurer* Ben Lawson Elliot Mather LLP Tel: 01246 231288 ben.lawson@elliotmather.co.uk
Constituency Council Representative, Derbyshire (+) Shama Gupta shama.gupta@freeths.co.uk
(+) attend Committee by invitation
Administrator / Bulletin Editor Julia Saunders, 14 Risborrow Close, Etwall, Derby DE65 6HY Tel: 01283 734989 Mobile: 07964 358042 admin@derbylaw.net Sub-Committees (Secretary in italics) Criminal Litigation Simon Stevens
Family Law Fiona Apthorpe David Guthrie dg@aflp.co.uk Diana Copestake diana.copestake@freeths.co.uk Fiona Apthorpe Fiona.Apthorpe@geldards.com Fiona Lazenby fiona.lazenby@knightsplc.com Julie Skill Julie.Skill@elliotmather.co.uk Kelly Mower kellym@eglegal.co.uk Liz Guyler lizguyler@eglegal.co.uk
Andy Cash Monica Guram monica.guram@nelsonslaw.co.uk
Public Relations Officer (+) Vacant
Amelia Sutcliffe amelia.sutcliffe@ smithpartnership.co.uk
Solicitors’ Benevolent Assoc. area representative Peter Lord 9 Larkhill, Swanwick DE55 1DD Tel: 01773 541753
Felicity Coats felicity.coats@elliotmather.co.uk Andrew Oldroyd (01332 225225) Education & Training Sue Jennings, & all Sub-Committee Secretaries Employment and Business Law Sue Jennings Tina Attenborough tina@attenboroughlaw.co.uk Equality, Diversity and Inclusion Manesha Ruparel mr@aandco.co.uk
Lucy Tissington lucy.tissington@familylawgroup. co.uk Manesha Ruparel Alexander & Co Solicitors LLP Tel: (01332) 600005 mr@aandco.co.uk Melanie Bridgen melanie.bridgen@nelsonslaw. co.uk Natalie Haydon-Yeung Natalie.Haydon-Yeung@geldards. com Nick Herbert nh@aflp.co.uk Ruth Jones ruth.jones@smithpartnership. co.uk
Tina Attenborough tina@attenboroughlaw.co.uk Sue Jennings s.jennings@derby.ac.uk
Sole Practitioners’ Group (SPG) Tina Attenborough
Natalie Haydon-Yeung natalie.yeung@geldards.com
Claire Rudkin Flint Bishop, Derby Tel: 01332 340211 claire.rudkin@flintbishop.co.uk Simon Stevens Eddowes Waldron 01332 348484 sws@ewlaw.co.uk Last updated 27.10.23
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President’s Page
Oliver Maxwell It has been an incredibly busy few weeks since my last update. The short spell of unseasonably warm weather has now been replaced by that all too familiar chill in the air as winter approaches. As a family, we’ve started settling in to the new “school-run” routine and my eldest seems to be enjoying school so far. That said, he did admit to me one evening that he found some of the classes “boring”. Upon further questioning (in classic Dad-lawyer style), it became clear that he was dissatisfied with the lack of toys in some of the classes. Well, welcome to the next thirteen years of your school life, kiddo! Anyway, now to DDLS matters. Let me update you on what’s been going on. The day after I wrote my last bulletin, Nelsons kindly played host to some training delivered by Carter Burnett Legal Costs Consultants on the Fixed Recoverable Costs regime which came into force on 01st October 2023. It was probably the busiest training event that I have ever seen DDLS host, and we saw people from member firms that tend not to engage that often. That in itself is re-assuring but, even more excitingly, off the back of that training session we actually saw an increase in membership for the first time in years!
Next was the long-anticipated launch of our “Tapas Thursday” networking event, which has been deliberately designed to bring the legal and business communities closer together. I am delighted to report that the sun shone, and the event was an amazing success! We had almost 40 lawyers and non-lawyers come together to make some new connections over award-winning tapas food. We also heard from Liam Jack, who is now a full-time youth worker at the Enthusiasm Trust based in Osmaston in Derby. Enthusiasm is, of course, my chosen charity for the year and Liam is a real-life example of the positive impact the charity can have on young people’s lives. You can find our more about the charity here https:// enthusiasm.org.uk/ and donate via our JustGiving page. The next TT event is on 11th January 2024 so please save the date. Next was the Local Law Society’s Annual Conference on 13th September. Unfortunately I was unable to attend, but DDLS was well represented by our Administrator Julia and our current Deputy Vice President, Lucy Tissington. In advance of the Conference, I had been in touch with the National Law Society’s Head of Engagement and Services, Valeria Mancheva, and was surprised to learn that she was aware of both Tapas Thursday and the forthcoming Ghost Walk, the latter of which is being organised in conjunction with our fantastic Derby Junior Lawyers. Valeria described these events as sounding “amazing”, which I think we should be very proud of. In fact, feedback like that demonstrates that, as a comparatively small society, DDLS really is starting to punch above its weight and gain some traction. Let’s try and keep it up!
On the same day as the Conference, I attended the online Civil Court Users Committee Meeting which is organised by the Nottinghamshire Law Society and hosted by Ropewalk Chambers. DDLS in fact ran a similar scheme in the early days of the Covid-19 pandemic with HHJ Godsmark QC (as he then was) sitting as chair. Over time, however, the number of civil practitioners participating began to dwindle and we eventually disbanded the meetings. For my part, I think that was a great shame because those meetings gave us direct access to the inner workings of the judicial system. It also provided a platform for us, as practitioners, to raise concerns and given feedback on our experiences. That platform continues to exist via the Nottinghamshire Civil Users Committee and, as part of the last meeting, it was agreed that any DDLS practitioners who want to participate in those meetings can do so. Please email admin@ derbylaw.net if you want to be added to the Committee invite and this will be arranged. My next presidential engagement was to attend the High Sheriff of Derbyshire’s Legal Service at Derby Cathedral on 08th October. This year, the office is held by Theresa Peltier and the theme of her Legal Service was “unity in community”. Being DDLS president, my wife and I were invited to dine with Theresa and her guests in advance of the service and I extend my sincere thanks to Theresa for that invite. I was in fact lucky enough to sit next to Theresa on the top table and we discussed the great work that she has been doing over what sounds like a very busy year for her so far! I was then fortunate enough to represent DDLS in the procession as we all entered the Cathedral.
That was a real honour and the service itself was very moving. Last week then saw the final two events which have occurred during the course of this bulletin update. The first was the DDLS Past President’s dinner held at Kedleston Country House Hotel. It was a great evening spent with some wonderful people, and I thank Kedleston Country House Hotel for their excellent food and hospitality. Second was the annual “DDLS Bake-Off” competition, which this year saw a record number of entrants and over £500.00 raised for Enthusiasm! It was a great effort form all involved and I am so pleased that we were able to raise some much-deserved funding for our chosen charity. Congratulations to Gemma Plummer from Eddowes Waldron who won the “best bake” prize for their Halloween inspired cake. Gemma was closely followed by two entrants from the Smith Partnership, who secured second and third place prizes. Anna McLeod came second for her toffee apple roses, with Claire Twells coming a close third for her piñata cake. Congratulations to all of our individual prize winners, as well as to the Family Law Group who won the prize for the most money raised for Enthusiasm! Thanks also to our event sponsor, Greg Gillespie from Tacet Global, for providing the prizes. Until next time, I think that is about all I have to say. It goes without saying that I shall continue to represent DDLS as we steam towards the festive period but, for now, take care and I hope to see you all at forthcoming events. Oliver Maxwell President, 2023-24
www.derbylaw.net
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Council Member’s Report Consultation on regulation of CILEX members There is ongoing consultation on whether Legal Executives should cease to be regulated by CILEX Regulation Shama Gupta Limited and instead come under the SRA (the CILEX consultation closed on 5 November). Further reading – The SRA consultation closes on 22 November SRA | SRA consults on regulating CILEX members | Solicitors Regulation Authority https://www.sra.org.uk/sra/news/press/sraconsults-regulating-cilex/
Professional ethics programme
Fresh ideas for 21st century justice
TLS launched a 3-year professional ethics programme and web hub on 5 September to support members balance their obligations to their clients and wider society.
TLS is seeking your views on the future of the civil justice system - “I want these proposals to spark debate and generate energy and purpose about what we – as a profession and as a country – can do to fix our civil justice system. Solicitors are the cornerstone of that system. By leading the debate, we are helping to ensure the sustainability of our profession today, and into the future.” Richard Atkinson, chair of the 21st Century Justice Advisory Group.
Further reading - Ethics | The Law Society https://www.lawsociety.org.uk/topics/ethics/ Solicitors Indemnity Fund (SIF) and post sixyear run-off cover (PSYROC) On 1 October, the SRA took direct control of the running of SIF, ending years of uncertainty about the PSYROC. Further reading - Solicitors Indemnity Fund and post six-year run-off cover | The Law Society h t t p s : //w w w. l a w s o c i e t y.o rg .u k /to p i c s / professional-indemnity-insurance/sif-andpsyroc
Further reading - Fresh ideas for 21st century justice | The Law Society https://www.lawsociety.org.uk/campaigns/21stcentury-justice TLS welcomes feedback from you and I would like to hear from you about anything you may wish to share concerning your professional needs. Please contact me at https://www.lawsociety.org.uk/ about-us/our-governance/council-constituenciesand-current-members/shama-gupta.
TLS has set-up a high-level working group to respond to this and welcomes members’ views Regulation of CILEX members | The Law Society
SRA | SRA now managing the Solicitors Indemnity Fund | Solicitors Regulation Authority
Don’t forget to update your personal information on My LS!
https://www.lawsociety.org.uk/topics/regulation/ regulation-of-cilex-members
https://www.sra.org.uk/sra/news/press/sramanaging-sif/
Shama Gupta, Law Society (TLS) Council Member
Experienced Family Solicitor/Legal Executive Derby – Hybrid remote or fully office based.
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The successful candidate will ideally have 2-5 years PQE and: • Must have excellent client care skills and experience in a range of private and legally aided family law work including divorce, separation, children, financial matters etc. • Be pro-active and able to successfully manage an independent caseload and conduct advocacy confidently. • Ideally be a member of Law Society Children or Family Law Panel (but applicants who are keen to work towards membership will be considered).
Salary dependent upon experience. Generous holiday allowance. Competitive bonus and pension scheme, and good prospects.
You will be joining an established, supportive and friendly Firm, carrying out both private and legally aided work. Our usual office hours are 9am to 5pm Monday to Friday. However, flexible/hybrid working arrangements and full and part-time hours are available.
Wykes O’Donnell Williams is committed to equality, diversity and inclusion. For an informal discussion, or to request a reasonable adjustment in relation to your application, please telephone Fiona on 01332 340349.
www.derbylaw.net
Please forward full CV and covering letter, including details of current salary and notice period, in confidence to: Fiona Haskew, Practice Manager, Wykes O’Donnell Williams, 10/12 St James Street, Derby, DE1 1RL, or by email to: fionahaskew@ wykesderby.co.uk by 1 December 2023.
DDLS Charity Bake Off 2023
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Following the success of the first Charity Bake Off last year we were pleased to see even more firms taking part in this year’s event. The idea is simple - members of each firm bake their cakes, send photographs of them to the administrator of DDLS, sell and eat the bakes and then donate the money raised to the President’s Charity, which this year in The Enthusiasm Trust.
Partnership for taking part and raising a fantastic total of £545.57 for the charity. The standard of baking was high but the worthy winner with her Halloween Cake was Gemma Plummer from Eddowes Waldron
Family Law Group were the firm who raised most but huge thanks to Derbyshire County Council, Eddowes Waldron, Nelsons, Alexander & Co, Family Law Group and The Smith
Thank you to everyone who took part, Lucy Tissington and Davina Charlton for organising and Greg Gillespie from Tacet Global who donated the prizes.
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Second prize went to Anna McLeod for her toffee apple roses and third to Claire Twells for her Piñata cake (both from Smith Partnership)
Derby Junior Law Society – Committee Update Following on from our AGM on 28 September 2023, we are incredibly excited to announce our new Committee for the coming year. We would like to take this opportunity to thank those forming part of the 2022-2023 Committee. Firstly, a huge thank you to Alexander Needham for his brilliant leadership as the first President of the reformed DJL. Our thanks also go to Monica Guram in her role as Treasurer, and to Alexandra Wood, Ed Granger, and Sophie Henwood for all of their work over the past year. The new Committee will take effect in January 2024, and we are delighted to announce the new Committee as follows:
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• John Ellis • George Ottewell Sports Secretary President • Henna Aietan • Laura Matthews National Representative Vice-President • Amelia Sutcliffe We look forward to improving the DJL further, Deputy Vice-President • Megan Atkins and providing our members with exciting opportunities and valued connections. We Treasurer can’t wait to share with you our plans for the • Sarah Jackson & Jessica Silvers new year. Secretaries • Bethany Adams Social Secretary • Sophie Haywood Membership Secretary • Catriona Smedley Charity Secretary
Franklin & Co. is 40 The old law library remains a feature of the building, and is now used as the conference room. A portrait of Clifford Brooke-Taylor, senior partner in the mid-20th century, hangs in that room, courtesy of the Brooke-Taylor family. Over the following decade, Franklin & Co. took on extra rooms in Town Hall Chambers as other tenants vacated their premises when their leases came to an end. By 2013 the firm occupied the whole building. The next phase in the development of the firm started in 2022 with the conversion of empty attic space into new offices on the second floor of Town Hall Chambers. Although the building work was disruptive at the time, following on from the difficulties caused by Covid 19 and the lockdowns, it has enabled the firm to bring in new members of staff. This has increased the capacity of the firm to continue to serve the growing needs of the people and businesses of Bakewell and the Peak District into the future. As it always has done, the firm handles Residential Conveyancing, Agricultural and Commercial Property, Wills, Probate, Trusts and Power of Attorney matters. Through all the changes over the years, the firm has endeavoured to keep James Franklin’s legacy alive in Bakewell. He will continue to inspire future generations to build upon the foundations he put in place. Philip Bramall Catherine Anderson, Philip Bramall and Nicky Gray Franklin & Co. Solicitors has been established in Bakewell for 40 years. A 40th Anniversary Celebration Evening has been held at their offices at Town Hall Chambers. The firm was pleased to be joined by professional friends and colleagues to share the occasion, including Julia Saunders representing D&DLS. James Franklin founded the firm in December 1982 at Devonshire Chambers on Rutland Square. Having been brought up in Bakewell, he saw the opportunity to build a legal practice in the town. James was also Tower Captain of Bakewell Belfry for many years, hence the bell logo that he used to help identity the firm as a Bakewell business. During the 1990’s James brought in Chartered Legal Executive Nicky Gray as a specialist conveyancer and trained Catherine Anderson to qualify as a Chartered Legal Executive to help deal with the firm’s growing case load. He recognised their talent and potential, and both are still with the firm today, as Heads of the Residential Conveyancing and Private Client Departments respectively. James retired in 2001. Philip Bramall, who had joined the firm as a Solicitor in 2000, was invited to carry on the business. Both intended the firm to continue in the same way, and to retain its identity as a Bakewell business. In 2003 the firm moved from Devonshire Chambers a few doors along the street to Town Hall Chambers at Anchor Square, where there was more potential to expand. Town Hall Chambers has a long history as solicitors’ offices, having been occupied by Brooke-Taylors from when it was built in the 1890’s until that firm vacated in 1980.
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Lorna and Philip Bramall, James Franklin and his wife Christine
A We So
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Family Law Committee meeting - 06.09.23 Present: Fiona Apthorpe (Secretary) Nick Herbert Manesha Ruperal
0.2. Court User Meetings Nothing to report.
Apologies: Diana Copestake David Guthrie Julie Skill Liz Guyler Fiona Lazenby Kelly Mower Natalie Haydon-Yeung
2. AGENDA ITEMS 2.1. Listing Colleagues shared the experiences of last minute court hearing cancellations generally due to lack of sufficient judges. Manesha is attending the Improving Family Justice in the Midlands Conference on 14 Sept and will raise this issue and report back
No Apologies: Lucy Tissington Kirpal Bidmead Ben Lawson Ruth Jones Melanie Bridgen
3. PERMANENT AGENDA ITEMS 3.1. Database A reminder that the database of Family Practitioners is a very useful method of communicating information to family lawyers locally.
1. MATTERS ARISING 1.1. Membership/Attendance The meeting took place face to face but a poor turn out and not many apologies! Would people prefer meetings to be held remotely in future, or face to face or a combination?
Could everybody please double check that Members of their Family Team are included. If you are not included please let Fiona have your email address. 3.2. Training and Education Suggestions for topics would be appreciated.
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3.3. Local Family Justice Board The Derby Family Local Justice Council was originally set up in 2005. It was subsequently resurrected as the Local Family Justice Board. Many Committee Members are Members and if you want to be on the LFJB’s mailing list and be sent information about training events etc please contact Joanne. eaton1@hmc.gsi.gov.uk 3.4. Court User Groups Nothing to report save as above. 4. DONM The next scheduled meeting is Wednesday 6 December at 4pm. at Geldards’ offices on Pride Park and will take place face to face (unless the consensus is that we move to remote?)
Fiona M K Apthorpe Secretary
Past President’s Dinner – 12th October 2023 Sixteen former President’s of DDLS and the current President, Oliver Maxwell, enjoyed a fantastic meal and catch up at the Kedleston Country House Hotel on 12th October.
Pictured above – John Calladine (99/00), Graham Dean (00/01), Arthur Titterton (01/02), Andy Cash (16/17), Christine Ball (11/12), Julia Saunders (09/10), Oliver Maxwell (23/24), Di Copestake (15/16), Ben Lawson (18/19), David Hardy (97/98), Sue Jennings (19/20), Fiona Apthorpe (02/03), Nigel Anderson (08/09), Manesha Ruparel (22/23), Martin Salt (19/21), Mary Honeyben (04/05) and Julie Skill (21/22). It is always a very enjoyable evening with a chance to exchange news, gossip and get travel tips from our resident Judith Chalmers aka Di Copestake ! We were also able to raise a glass to our dear recently departed friend, Quentin Robbins, who was President of DDLS 2007/08 and was always central to this social occasion.
Thank you to all those who attended and to any past president’s who weren’t able to attend it appears that there is such appetite for this particular dinner that it will be moving to become an annual event!
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Tapas Thursday Networking Lunch 7th Sept. 2023 The first Tapas Thursday took place on a beautiful sunny day at Lorentes Darley Abbey. President, Oliver Maxwell, did an amazing job organising the event and welcomed professionals from across the local area (and beyond) from a huge variety of backgrounds. After a brief welcome from Oliver himself we heard Liam, from the Enthusiasm Trust, tell his own inspiring story. Liam, having benefitted
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from the work of the Trust in his youth is now a mentor for the Trust passing on his experience and knowledge to local young people helping them develop life skills and increase their social mobility. We were then treated to an excellent and plentiful tapas feast.
FHP, Vibrant Accountancy, Smith Bowyer Clarke, Rotheras, DDLS, STAT Building Consultancy, Enthusiasm Trust, Calm in a Box, Smith Partnership. Thank you to everyone who came and to our sponsors Nelsons Solicitors and STAT Building Consultancy.
We welcomed representatives from PKF Smith Cooper, Haines Watts, Verify 365, Nelsons, Family Law Group, EMF Business Transfers, Legal & Contingency, Alexander & Co, Handelsbanken,
The next Tapas Thursday is 11th January 2024 and we look forward to seeing you there. Photography by Lamar Francois
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Book Review An appreciation by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator As technological change looms ever larger, faster, and increasingly complex, this book -now in a new edition -- becomes all the more essential for practitioners tasked with the ups and downs and ins and outs of negotiating technology contracts. To say that they’re difficult to negotiate is something of an understatement.
Negotiating Technology Contracts 2nd edition Authors: Kit Burden, Mark O’Connor, and Duncan Pithouse ISBN 978 1 78742 979 6 Globe Law And Business www.globelawandbusiness.com Top Professional Advice On The Subtle And Profitable Art Of Coping With Technology Contracts -- Now In A Second Edition
All the better then, that the three authors of this well-established legal text -- all from DLA Piper -- have now collaborated in producing its new second edition from Globe Law and Business. Their stated aim is to ‘help you navigate safely and successfully through the negotiation maze.’ And a fair bit of a maze it is too, considering the ubiquity and complexity of the subject matter. The overall aim is to help negotiators gain a full appreciation of the nature of the underlying deal and the true commercial needs of the contracting parties involved. Compliance with the relevant laws and regulations is of course a key issue, particularly the ramifications of changes to the law and also the key question of which jurisdictions are being referred to. Across its twenty-four chapters, the book
delivers considered and informed advice on a wealth of other key issues, including such relatively recent developments as cloudbased services and the impact of artificial intelligence (AI) on contract provisions. The book is reassuringly practical in that it tells you what you need to know and what you need to do, as you approach that formidable negotiating table. Chapter topics range from due diligence to service provision, to warranties and of course much more. Helpfully, there is useful commentary on such issues as, for example, intellectual property and cloud services, plus comment on the different types of technology contracts and the various approaches you are likely to encounter in Europe, the UK and the US. The advantage here is that the various types of technology contracts are carefully examined -- and also note the final chapter on handling -- or coping with -- the dreaded eventualities of managing contract disputes. As technology progresses ever faster and further into an era in which AI, for example, will increasingly dominate, this book provides the beleaguered negotiator with essential and much needed advice and guidance. No one involved in the complexities of this fraught and fast-moving area of law should be without it. The date of publication of this hardback second edition is cited as August 2023.
Ban on ‘no-fault’ evictions may be in vain if government fails to invest in legal aid The Law Society of England and Wales has expressed concerns about the enforcement of the Renters Reform Bill, ahead of the government debate today (23 October) on the reform of the rental market. Law Society president Nick Emmerson said: “We welcome the Renters Reform Bill and are pleased the government recognises the need to ban ‘no-fault’ evictions. However, we remain concerned about the government’s ability to ensure tenants can enforce these newly afforded rights under the bill. “With the cost-of-living crisis and high interest
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rates, renters may be unable to afford legal advice if they face eviction. For renters at risk of losing their home, access to housing legal aid becomes vital. “Many renters on low incomes cannot receive the advice they are legally entitled to, with 42% of the population unable to access a legal aid provider in their local area.* Without legal aid, the bill’s new measures will be far less effective than they should be. “The bill may also lead to a short-term increase in evictions and contested hearings. Renters who are unable to access legal aid will be forced to represent
themselves which will place additional pressure on the courts and exacerbate court delays. “We urge the government to invest in both the legal aid system and the courts to ensure renters can access justice and are protected when facing eviction. “Without immediate investment, the bill’s commitment to progress and reforming the rental market will be in vain.” *Statistics taken from the Legal Aid Agency directory of providers (March 2023) and the Office of National Statistics (2022)
Understanding charity beneficiaries by Remember A Charity Why should we consider gifts in Wills and how we communicate with charity beneficiaries? Because legacy income for the charity sector is significant. Here at Remember A Charity, we know that the continued support of legal professionals is a key reason why charity income from gifts in Wills is increasing - with this form of giving being up 43% in the last decade*. Through consistently making clients aware of the option to give in this way, and by showing your support for this form of charitable giving through joining initiatives such as our Campaign Supporter scheme and other Will-writing schemes, Law Society members are playing a vital role in helping public awareness and appetite for gifts in Wills to continue to grow. Whilst both keen to ensure client wishes are upheld, we know that charities and the legal sector often come at estate administration from a very different perspective. Understanding why this might be was the subject of our recent Campaign Supporter webinar on how to communicate effectively with charity beneficiaries about gifts in Wills. Here’s some of our top tips and insights: Charities operate under a legal and governance framework Charities are required to navigate a complex maze of red tape in order to satisfy the requirements of both the Charity Commission and of their auditors, which mean that they have a moral and legal duty to ensure funds are claimed and accounted for in a timely way. This includes maximising the value of assets disposed of on their behalf, making best use of tax exemptions (both in relation to Capital Gains Tax and Inheritance Tax on the estate), and the need to demonstrate that they have done so to their auditors. With gifts in Wills forming around significant part of their income, charity auditors place a huge emphasis on ensuring a strong audit trail, so charities may come to you with lots of questions. Often, it’s to complete a form or reassure trustees and auditors around due diligence so be open and receptive to their needs Alert charities to any potential issues Most probate cases run smoothly, but a small proportion will encounter some kind of issue – from disputes over the validity of the Will, to delays and complexities associated with the selling of properties. For a large charity this can mean dealing with hundreds of difficult cases each year. Alerting them early to any potential challenges means you can work collaboratively to find a resolution, saving you time and helping to prevent a frustrating to-and-fro of correspondence. Keeping an open dialogue, we’d encourage you as solicitors and Will-writers to keep charities in the loop wherever possible, giving timely updates on the estate, and the likely next steps. Timing is crucial, particularly when it comes to particularly sizeable gifts, which can have a transformative impact on the charity and therefore could influence key investment decisions. Understanding when funds are likely to arrive helps charities manage cashflow and improve their forecasting, enabling them to plan ahead and budget for the future - a key factor for charities looking to maximise their efficiency.
to accept. For example, they may be too hard to dispose of or selling/maintaining them will in fact cost the charity more than the gift is worth. For example, an ivory statue could cause problems for a charity with either legal issues or going against their ethical guidelines (depending on the age of the item). Similarly, particularly valuable items such as a violin may need to be accompanied by care guidelines and may require funding to enable the charity to properly maintain them. And restrictive guidelines asking charities to use funds for a specific purpose, which the charity cannot meet when the Will comes into effect decades later, can also prove challenging. So, if a charity is unable to accept a gift in that form or requests an opportunity to discuss or explore alternative options, this is unlikely to be that they are don’t want or need the funds - but simply that they are keen to find a way forward that meets their own requirements, whilst still fulfilling the donor’s wishes. Charity staff have varying levels of legal understanding Many charity staff within financial or legacy administration teams you deal with will be qualified and well versed in the process of dealing with charitable estates, but this won’t always apply particularly when dealing with charities that are new to gifts in Wills and haven’t been named as beneficiaries before. It is therefore best to communicate by email wherever possible, and to be patient and allow sufficient time when it comes to any required decision making on the part of the charity, as the individual you are speaking with may need to double check with colleagues or seek other advice before proceeding. Try to keep the language in all correspondence easy to follow, minimise jargon, and manage expectations in case they are unfamiliar with the process. Network locally with charities A positive relationship can be a win-win for business development – with potential opportunities such as the chance to ask for your details to be featured in digital marketing collateral, or to raise your profile by offering support at a Q&A session for the charity’s staff and/or supporters. Charities will often seek out corporate support, and in turn this can offer you a great opportunity to build relationships and attract more clients; after all, charity staff may not have written a Will yet themselves. With a mission to normalise giving to charity from your Will, our free Campaign Supporter scheme gives Will-writers access to resources and exclusive digital marketing assets to help you start up those allimportant legacy conversations. All Campaign Supporters are also listed in our searchable directory for those looking for help in writing their Wills.
To find out more about our Campaign Supporter scheme for solicitors and Will-writers, visit: www.rememberacharity.org.uk/ advisers
Some gifts will be more difficult for charities to accept
You can also join our dedicated LinkedIn Group for Professional Advisers, to network with likeminded legal professionals and keep up to date with all the latest developments when it comes to gifts in Wills.
Charities are grateful for all gifts, no matter their size and shape. However, some gifts will be more difficult than others for charities
Ref: *Remember A Charity Consumer Benchmarking Study 2022, OKO
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Access to justice undermined due to lacklustre online court services clients, especially as these portals are often used at an already challenging and difficult time, such as managing the estate of a deceased loved one, handling a child protection matter or getting help with an accident that wasn’t their fault. “The increased delays and associated uncertainty these portals have created are causing additional stress.” Three in five (62%) respondents reported delays in court proceedings as a result of the portals, which had emotionally impacted their clients. A third (34%) reported increased costs have been passed on to clients. Nick Emerson New research published by the Law Society of England and Wales has found that the government’s digitisation of the court system is adding to the delays plaguing the civil court system and undermining people’s access to justice when they need it most. A survey of solicitors who have used the damages claims, public family law and probate portals has uncovered the extent of technical issues with the system and the impact of these on the delivery of justice.* “For seven years, HM Courts and Tribunals Service (HMCTS) has been modernising the justice system to make it more straightforward, accessible and efficient. Its court reform programme is designed to improve courts and tribunals for court users,” said Law Society president Nick Emmerson. “It has had many successes in this time, such as the digital uptake of all probate applications increasing to 80% by December 2022 and more than 70% of all courtrooms able to allow parties to join hearings remotely. “However, it is important for HMCTS to learn from the problems in its systems, as well as its successes. “Our findings show that more than half of solicitors surveyed do not believe the portals are efficient and effective in delivering justice. “We know that modernisation is a work in progress, but this is having a real impact on
Across the three portals contributing factors to the delays included timeliness, communication and technical issues along with the lack of HMCTS staff resource to deal with problems. Probate (75%), family public law (66%) and damages claims (46%) portal users reported delays in court proceedings and the administration of justice.** The impact on clients was evident. More than half (54%) of probate users said the online process is taking longer than the paper-based system, three in 10 (29%) experienced poor response times and limited staff knowledge, with nearly one in five (18%) stating this meant there were delays in issuing grants. Half (50%) of damages claims users reported that delays were impacting on clients and a quarter (24%) said the process was burdensome. Seven in 10 (70%) users of the family public law portal reported technical errors and frequent breakdowns and four in five (80%) reported lack of timeliness of technical support. Nick Emmerson added: “Some of these issues have come about because there simply wasn’t sufficient engagement with the solicitor profession, the advice sector and members of the public when these systems were being designed. “Well designed and thoroughly tested online systems have the potential to increase access, drive efficiency and streamline case management.
“An efficient court system ensures streamlined case management, fair and transparent proceedings and ultimately, timely access to justice. “We urge government to take our proposals on board as it continues its court reform programme.” The Law Society’s recommendations include: • improved and consistent communication for those using online systems to help ease the backlogs by reducing demand on the court service • a user-led design and development process involving the public, legal professionals and the advice sector • a central resource containing information and guidance for users of each online court system • software to improve communication between online court systems and solicitors’ case management systems • robust data collection and transparency will aid continuous improvement of current and future online court systems Notes * 722 solicitors provided responses across three surveys focusing on HMCTS’ online services including the damages claims portal, the family public law portal and the probate portal. ** Respondents’ thoughts on the online portals included: Probate: “We have gone from a system that cost £45 and took two weeks to a system that costs £273 and takes 16 weeks! How is this progress?” Family public law: “It has caused problems for the business leaving clients wondering if the problems are due to our ability to use the portal. As usual the government wants to save money and leave the users with the problem of working with new technology before it is set up.” Damages claims: “More training needs to be provided to staff, more guidance needs to be provided for users and a general better understanding of what is expected to be provided at these early stages would be better being provided before the product is expanded.”
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Expert Witness Institute urges removal of new intermediate track rule in civil claims cases The EWI has written to the Civil Procedure Rules Committee calling for the removal of a rule in the new intermediate track for civil claims that would limit expert reports to 20 pages. Rule 28.14 (3), set to come into force on October 1st 2023, includes a statement that unless the court orders otherwise, “any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report.” A limit on report length would be a significant change for Expert Witnesses, with the potential to impact the work of experts and the quality of expert evidence, too. What is the intermediate track? From October 1st, civil claims cases between £25,000 and £100,000 can be allocated to a new intermediate track. It’s been introduced in an attempt to create certainty of legal costs that are proportionate across a wider range of civil claims. Rule 28.14 (3), introduced without any consultation with the legal and expert witness community, was added to Part 28 amendments rather than making an amendment to Part 35, which would have signalled a significant change for experts. As such, its introduction was only recently highlighted to EWI and our membership. EWI letter to the Civil Procedure Rules Committee Our letter to the Civil Procedure Rules Committee strongly urges the removal of 28.14 (3) from the draft amendments ahead of the new track coming into effect. In the letter, EWI CEO Simon Berney-Edwards writes: “It can only be assumed that the logic taken by the committee is that cases between £25k and £100k are less complex and therefore Expert Evidence can and should be restricted in order to save costs. If this is indeed the logic used, we would strongly urge you to reconsider.” Elsewhere in the letter, we explained the reason for reports exceeding 20 pages: “Reports tend to be over 20 pages because it is important for experts to include logical reasoning, refer to other opinions, and incorporate summary paragraphs. All of this is in place to support the court in decision-making. The introduction of this arbitrary page limit will compromise the report and the ability of the Judge to assess the technical aspects of a case. Indeed, in advance of a Judge’s involvement, it is good, well-structured expert evidence that assists the lawyers in settling cases avoiding the need for trials.” Key issues presented by the new rule Using feedback from highly-experienced EWI members from various professions, our letter outlines a number of issues presented by the new rule, including:
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Cases with a claim value of less than £100,000 are not always straight forward Particularly in Medico-Legal, Construction and Forensic Accounting cases. Plus, at early stages in a claim it’s not always possible to calculate the value until after various expert witness reports have been obtained. Restricting the number of pages to 20 is arbitrary, with no clarity on what to omit. Different types of reports will have different requirements, which may vary according to profession, whether opinion is required on breach or quantum, and whether there are differences in factual or expert evidence to address. Structure and necessary inclusions Expert witnesses are required to meet their full obligations under CPR35, PD 35 and The Guidance for the Instruction of Experts in Civil Claims, which may not be achievable with a limit on report page numbers. Expert opinion If there are numerous facts on which an expert needs to base their opinion, then the report must be able to accommodate them. Unintended consequences Limiting the report length may mean information is removed, leading to a greater number of queries and a diminishing quality in the presentation of reports. Our letters also suggests that, if the main requirement is to reduce the costs of expert evidence, the instruction a of a Single Joint Expert should be considered: a cost-effective option in lower value cases. The letter concludes: “In our view, expert witnesses should be well trained in their duties, must know that they should work efficiently and that their reports should be concise and clear – no longer than is necessary to assist the lawyers and the Court. But it is for experts to determine the length of the report is each case, based on their instructions, their expertise and scope of opinion, and the details of the case. We believe that the introduction of this rule will compromise the quality of expert evidence and good decision making. Ultimately, this will have an impact on the administration of Justice, the support provided to the courts, and the outcomes for those involved in litigation.” We eagerly await a response from the Civil Procedure Rules Committee and will update our members in due course.
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Email: bill.bailey1@nhs.net
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When your expert costs you money! challenge to the expert’s independence. The claimant solicitors never did find a suitable expert. The defendants applied for striking out or summary judgment, and the DJ granted this in part. He was scathing of the solicitor’s behaviour, saying this was an abuse of process. After all, they had amended the claim from about £10,000 to about £100,000 and had not even paid the additional court fee!
Chris Makin You kind readers of this journal, or of the blog page on my website, will have noticed that I go on and on (and on and on...) about incompetent or even dishonest expert witness. It is over 12 years now since the expert’s immunity from suit was removed — see Jones -v- Kaney [2011] UKSC 13 — and since then we have had: • a third party costs order against an expert see Martine Robinson -v- Liverpool University Hospital NHS Trust in Liverpool County Court at reference FOSYS511 though that was quashed on appeal and • a medical expert threatened with jail in Liverpool Victoria Insurance Company Ltd -vDr Asef Zafar [20191 EWCA Civ 392 where the solicitor was jailed immediately. • We have also had blatantly dishonest experts in a major conspiracy to defeat justice in Accident Exchange Ltd -v- Nathan John George-Broom and six others [2017] EWHC 1096 {Admin) where seven experts were jailed for up to 13 months. Preaching the obvious, the courts rely heavily on expert testimony, and are becoming harsh on experts who get it wrong, particularly if they are dishonest. But what about the lawyers? Do they get off scot free? Not any more! There have been examples in judgments of the court insisting that instructing solicitors know CPR Part 35 as well as the experts they instruct. Arnold IJ (sitting as a judge down in the High Court because the case was so very technical) castigated instructing solicitors in Akebia Therapeutics Inc and Otsuka Pharmaceutical Co Ltd -vFibrogen Inc, stressing many times that it is the duty of the instructing solicitor, not just the expert, to know CPR 35 and
the Practice Direction, and to ensure for example that the expert attaches their CV to their report (basic!) and that there is nothing in the published literature by an expert which contradicts the opinions they express to the court, But so far, although the reputation of these solicitors can hardly have been enhanced in their clients’ perception, and although costs recovery may have been difficult, there was no example so far as |am aware of the management of experts being a direct cost to instructing solicitors. Buy now it’s different. In Jagger -v- AXA Insurance UK PLC [2023] 7 WLUK 293 the solicitor’s management of their expert was so bad that they rightly will have to meet the cost. The case concerned a claim for allegedly defective cavity wall insulation installed by Heatwave Energy Solutions. Heatwave had gone into liquidation by the time the claim was issued in 2022, so their insurers became the defendant. The claim was for less than £10,000, although the solicitor said they hoped to be able to find an expert who would put it far higher. They had [our months after issue find such an expert. In that time, the claim was amended to a remarkable £83,562 to £104,000! The amended claim form was served almost at the end of the four months, but there was no appended Statement of Truth and the increased court fee was not paid within that four months. Experts in this speciality were difficult to find. There was a ‘Mr X’ who may have been able to help, but he had withdrawn from a number of similar cases when it emerged that he was to take a share of the damages, a very obvious
The judge had costs orders in his armoury. He ordered that the claimants would pay the defendant’s costs of the application for striking out and they were debarred from claiming any costs incurred during the period of the abuse. Who in the end will pay these costs? It is reasonable to suppose that the client will object to paying, so the cost will then [all on the solicitor, No expert was maligned in this case, but it is a shameful example of a solicitor trying to use the presence -or absence - of an expert to strengthen their case and finding that it just didn’t work. They should have known better.
Biog: Chris Makin has practised as a forensic accountant and expert witness for 30 years, latterly as Head of Litigation Support at a national firm. He has given expert evidence about 100 times. He also performs expert determinations. Chris is a fellow of the Institute of Chartered Accountants where he has served on the Forensic Committee, and as an ethical counsellor; he is a fellow of the Chartered Management Institute, a fellow of the Academy of Experts where he serves on the Investigations Committee, and a mediator accredited by the Chartered Arbitrators. He practises as a mediator, from his home in West Yorkshire and his rooms at 3 Gray’s Inn Square, London WC1R 5AH, telephone 020 7430 0333. He has mediated 100+ cases so far, on a huge range of subjects, with a settlement rate to date of 80%. For more see his website with videos: www.chrismakin.co.uk chris@chrismakin.co.uk
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The use of DNA testing in legal practice immigration status and of course many instances of sensitive child circumstances involving local authorities. DNA is a chemical string of code which is unique to an individual. It is contained in nearly all the cells of your body (mature red blood cells are the exception) and is inherited half from the mother and half from the father. We examine this code in several ways to look at individuals and population characteristics, diseases (prediction and diagnosis), ancestry, to identify individuals in forensic cases and in our case, to decipher human relationships.
Dr Neil Sullivan “Part of our DNA” has become a catchphrase throughout languages worldwide and it refers to a characteristic that is innately part of something. Obviously, this is often misused but the phrase does convey a key principle, that all living things contain a molecule which codes for the essence of life, in whatever species, plant, animal or microbe. This molecule, deoxyribonucleic acid (DNA) and the technology that has developed around it, is now used in a host of applications - one of these, the determination of biological relationships, is the subject of today’s article. Our objective today is to provide a primer for the use of DNA in legal situations, particularly family law. It is the case that technology, ethics, law and society sometimes struggle to keep up with each other. This is particularly so with DNA technology, where we grapple with issues such as consent, parental responsibility, multiple parent babies, paternity fraud, sperm donation, postmortem testing, surrogacy, immigration to the UK and prenatal parentage testing.
The DNA is extracted from a few cells taken from the buccal cavity, a painless and noninvasive procedure which uses a cotton swab rubbed around the cheek of the mouth. We can use nearly any tissue but for controlled sample collection for legal testing, we always recommend the buccal swab route. In an identity test, the DNA is then examined for regions of similarity between the tested persons. In the case of a paternity test, the DNA test report will then confirm that the tested man is (usually with a certainty in excess of 99.999%) or is not the biological father of the tested child, which is given with 100% certainty. These results are termed either an inclusion (he is the biological father) or an exclusion (he is not the biological father). There are two types of test in general use, with the common parlance of a “legal” or “accredited” test, or a “peace of mind/personal information” DNA test. This is an important distinction, because only a legal/accredited test may be used for a legal purpose, such as changing birth certificate. In an accredited test, the appointed company will take control of the entire sampling and identity verification process, so that there is in effect a chain of custody of the sample from the subject to the laboratory.
The majority of DNA testing is to determine the biological father of a child or paternity, where we are trying to prove that a tested male (the alleged father) is, or is not, the true biological father of a tested child.
In a “peace of mind” test, the individuals are allowed to take the samples themselves and then return them to the laboratories; of course, in such cases we then rely on the participants to take the sample from the correct individual. This is unsuitable for any legal purpose.
There are also tests for other biological relationships such as for siblings, twins, grandparents and aunts/uncles. These tests are used for resolving family disputes,
A common issue relates to consent and who has Parental Responsibility for the child. For DNA testing we must have “appropriate and qualifying” consent for each sample to be tested.
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Consent is required from each adult party that is to be tested and if the test involves a child under 16, then we must also have consent from a person with Parental Responsibility for that child. This is generally the mother, but may be the father under certain circumstances or indeed some other body (sometimes jointly shared with the parents), such as the local authority. We are often asked about the participation of the mother in the process, which is in fact required for a legal/accredited test. With the mother’s DNA analysed in the test, in the case of an inclusion the percentage probability of paternity is generally much higher. This is because the child’s DNA is inherited half from mum and half from father…but we don’t know which half! So by identifying the mum’s DNA, we can then see that the remaining DNA must come from the father. Sometimes, mum or alleged father(s) are not available for sampling and we then seek to obtain a DNA sample from other close family members so that we can attempt to establish a presumed parentage via DNA from siblings, grandparents or uncles and aunties. While the figures for relatedness will not be as strong as for a direct paternity test, we can often gain useful probabilities which provide helpful supporting data when taken together with other evidence. Cousins are biologically too far removed to be helpful in this process. These are all of course somewhat complex issues and if you require more detail please get in touch or go to our website for more information. Details can be found below.
About the author: Neil Sullivan, BSc, MBA (DIC), LLM, PhD is General Manager, of Complement Genomics Ltd (trading as dadcheck®gold). The latter is a company accredited by the Ministry of Justice as “A body that may carry out parentage tests as directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969” and by virtue of directly running laboratory services which meet the stringent and internationally recognised ISO/IEC 17025 standard.
Cyber security is not a luxury, but a necessity for any business that operates online
network and encrypt or delete important files or data. The hacker could then demand a ransom to restore access or threaten to expose the data publicly. Alternatively, a hacker could launch a denial-of-service attack to overwhelm the network with traffic and prevent legitimate users from accessing it. This could cause downtime and loss of revenue for the business, especially if it relies on online transactions or services. The hacker could also use the attack as a diversion to exploit other vulnerabilities in the network and steal data or money.
Neil Shaw and Tim Rookes, Directors of True MSP Cyber security is the practice of protecting networks, systems, devices and data from unauthorised access, manipulation, or damage. It involves both technical and human aspects, such as encryption, firewalls, antivirus software, passwords, policies, and training. Cyber security is essential for businesses because it protects their reputation, customer trust, intellectual property, legal compliance, and competitive advantage. The risks of not investing in cyber security are high and increasing. According to a report by IBM, the average cost of a data breach in 2020 was £2.9 million, up 9.8% from 2019. The report also found that the average time to identify and contain a breach was 280 days, during which the business could suffer from operational disruption, regulatory fines, legal fees, reputational damage, and customer churn. Moreover, the cyber threat landscape is constantly evolving and becoming more sophisticated. Hackers use various methods to attack businesses, such as phishing, ransomware, denial-of-service, malware, spyware, and social engineering. These attacks can target different aspects of the business, such as the website, the email system, the cloud service, the payment platform, or the customer database. For example, a hacker could launch a phishing campaign to trick employees into clicking on malicious links or attachments that install malware on their devices. The malware could then spread across the
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These are just some examples of how a hacker could take down a business’s network causing loss of revenue. The best way to prevent these attacks is to invest in cyber security and adopt a proactive and comprehensive approach. This means implementing technical measures such as encryption, firewalls, antivirus software and backups; developing policies and procedures for data protection, incident response and recovery; and educating and training employees on cyber security best practices and awareness. By investing in cyber security, businesses can not only reduce the risks of cyber-attacks, but also gain benefits such as improved customer loyalty, enhanced brand reputation, increased operational efficiency and reduced costs. Cyber security is not an expense, but an investment that pays off in the long run. True MSP are cyber security specialists who already help over 100 local business, secure, protect and maintain the IT systems. For a no obligation conversation about your IT security, please get in touch. hello@truemsp.co.uk 01332 948600 www.truemsp.co.uk 01332 948600 hello@truemsp.co.uk
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The Importance of Family Tree Verification: Safeguarding distribution of estates around £400k, where the solicitor wanted verification that their client was the sole heir to the estate. The client was an elderly lady who claimed to be her late brother’s sole surviving next of kin. However, we discovered she’d disowned her nephew many years earlier and didn’t recognise him as part of her family. His ‘crime’ was to grow a beard to his waist and wander around his housing estate shouting and swearing. Once we had identified and located him, we established he had suffered from a mental illness for many years. In this case, half the estate rightly passed to him.
Danny Curran In France and Germany, probate research and the verification of intestate estates using professional firms is considered vital, on a par with the legal profession. Yet in the UK, we struggle to place probate genealogy firms fairly and squarely within the estate administration process. The industry is unregulated, which is not necessarily a problem and should not deter solicitors. My firm adheres to voluntary codes and regulatory regimes that can provide reassurance. The public must feel confident that the probate research firm is not operating a scam. Think of those bogus emails where the sender asks for bank account details in return for millions of pounds for instance. Reputation is a good starting point, but make sure you are dealing with a professional company. Firms can appear to list ‘offices’ around the world by placing keywords on their website and can use an impressive serviced ‘office’ address in a large city like London. Over-reliance on family testimony Another issue I see in the UK probate research industry is the reliance by the solicitor, administrator or executor on family testimony, without independent verification. Some solicitors accept the word of family members on who is or isn’t related to the deceased and by what degree of kinship. This can lead to incorrect estate distribution. I once worked on an intestate estate of
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Children Forgotten I have lost count of the children, siblings and half-siblings who have been overlooked or forgotten by solicitor clients referring cases to us. It’s not deliberate. Families lose touch, large families forget how many relatives they have, children are born out of wedlock and to single parents and, since 1927, adoptive families can legally inherit. It is an excellent idea for the solicitor to interview their client before engaging a probate research firm, to make sure all relatives are accounted for. There are four basic fee models available from most professional probate research firms. Freedom of choice is imperative to cover a variety of situations. The four main options are: 1. contingency fees, where a beneficiary signs a percentage-based agreement with the probate research firm 2. an estate / trust contingency fee, where the executor agrees on a percentage-based fee from a named beneficiary’s entitlement 3. a budget fee paid by the estate 4. a fixed fee paid by the estate. The basic model Firms may name these fees differently, but most firms offer this basic model. Contingency fees are the most popular option. They are seen as fairer in many circumstances--payable only on a successful distribution of an estate. An agreed budget or a fixed fee at the expense of the estate may be more appropriate, depending on the circumstances. Probate research firms can usually offer budget fees payable by the general estate or contingency fees where the fee is agreed directly with a beneficiary or the executor and expressed as a percentage of the sum they receive.
There are different situations where one fee option may be more appropriate. For example, if there is no grant or no known next of kin to extract a grant, a fee payable by the general estate cannot be used, as there is nobody with legal authority to agree to such a fee. Fixed fees ‘unfair’ Budget or fixed fees paid by the general estate diminish the whole estate value, which any next of kin who knew the deceased often sees as unfair. If the probate research firm works to a contingency fee and fails to find any further entitled heirs, it usually receives nothing for its work. Still, the report can secure the vital indemnity insurance policy needed to safeguard the administrator. There are dangers of being ‘hooked’ into using a firm based on a very low initial quote. Cheap does not necessarily mean better. It is often true that you get what you pay for, and this is not an area where it pays to cut corners. Importance of insurance An insurance policy against missing or unknown beneficiary claims is crucial. Sometimes, administrators seem confident they have identified all next of kin and consider taking out insurance cover against any further claims a waste of money. However, there are an increasing number of claims where no traditional documentation, such as birth certificates exists, and DNA evidence is also being used more than ever before. If there is no formal birth or adoption certificate, a research firm will likely be unable to find ‘undocumented’ claimants. Insurers are unlikely to accept a genealogist’s report as evidence unless you use a recognised firm of probate researchers. Using a recognised firm will often mean an insurance policy is instantly approved, saving you many hours of time. My preference would be to make insurance a statutory requirement on all £15k-plus estates or where a small estate indemnity is not being used. Things may go wrong, and the important thing is to be covered. For more information on Finders International’s family tree verification service, please visit the website www. findersinternational.co.uk. Alternatively, you can contact Finders via email: quotes@ findersinternational.co.uk or telephone: +44 (0) 20 7490 4935.