issue 47 Winter 2020/21
Hertfordshire Law Society Gazette
A challenging year ahead... Preparing for a fundamental generational reform of the Civil Justice system. Page 5
Also this issue: • Private Client Update • The Classic Conveyancing Conflict • The responsibility of experts in relation to their written evidence • Students Helping Family Court Users and much more...
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Contents
Hertfordshire Law Society Gazette
Contents issue 47 Winter 2020/21
4
Council Members for 2020
10
Students Help Family Court Users
21
Saving Time and Working Together
5
From the President
11
An Xpress service for professionals
22
A Clearer View of Future Plans
5
Private Client Update
13
Fit, Feasible and Fair?
24
Does informed consent stand
6
Yet Another Lockdown
14
Experts and Written Evidence
in the way of autonomy?
7
The Classic Conveyancing Conflict
17
Video Witnessing of Wills
26
Anti-Money Laundering Guidance
9
A Tough But Fulfilling Journey
18
St Columba's College
30
Top 10 Compliance Mistakes
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DISCLAIMER: the views expressed by the writers in this magazine are not necessarily those of the Hertfordshire Law Society
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Council Listings
Council Members 2021 President Neil Johnson HRJ Foreman Laws (Hitchin) Civil Litigation Vice President Steve Hamilton Taylor Walton LLP (Harpenden) Private Client
Members Marilyn Bell SA Law (St Albans) Family David Bird Crane & Staples (Welwyn Garden City) Private Client & Trusts
Hon Secretary and Treasurer Jessica Moseley Debenhams Ottaway (St Albans)
Penny Carey University of Hertfordshire (Hatfield) Academic
Immediate Past President Judith Gower Hertfordshire County Council (Hertford) Local Government
Jeremy Chandler-Smith JCS Solicitors (Codicote) Sole Practitioner
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Attia Hussain Crane & Staples (Welwyn Garden City) Family Jessica Moseley Debenhams Ottaway LLP Probate and Trusts
(From January 2021 until 31 December 2022) National Council Member
The Law Society
Paul Davies Hamilton Davies (Stevenage) Employment, Family and Litigation
Relationship Manager – East Jack Dunkley Parliamentary Liaison Officer Judith Gower
Dilpesh Shah Pellys Solicitors Limited Property & Commercial Claire Sharp Debenhams Ottaway (St Albans) Private Client Gary Smith Nockolds Solicitors Limited (Bishop's Stortford) Employment
Hertfordshire Law Society Gazette
Editorial
From the President... 2021 has brought with it continuing uncertainties over the short, medium and long-term future for the country. We have started life outside the European Union whilst dealing with the ever-evolving circumstances of the coronavirus pandemic. The development and implementation of the vaccination programme, however, gives some cause for optimism that there may be a gradual relaxation in the lockdown provisions and a steady return to the social and business lives we once took for granted. This year and the years ahead present not only the everyday challenges of maintaining service to our clients but the prospect of continuing radical change in how justice is delivered in this country. Sir Geoffrey Vos, the new Master of the Rolls sworn in on 11 January 2021, set out a radical agenda for civil justice in England and Wales during a virtual event hosted by the Law Society on 28 January 2021. The ambition is for a ‘fundamental generational reform of the civil justice system’ which will involve all claims being commenced and managed through an ‘online funnel through which all disputes can pass’. The online justice system, which suggests a greater involvement of litigants in person, will include the use of algorithms with judge led governance. There was comfort to practitioners that the larger or more intractable problems will still require their intervention and advice. In response to concerns raised that those with limited access to the technology would be disadvantaged, the Master of Rolls stated that a system could not be devised ‘purely for the digitally disadvantaged ignoring the digitally advantaged, who will probably be 90%
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or more of the population’. The continuing use of online technology is inevitable and part of our jurisdiction maintaining its leading place in the global legal market, as Sir Geoffrey pointed out. The challenge will be to maintain access to justice for all and, for practitioners, with the prospect of increased fixed costs regimes, the ability to maintain profitable legal services for as many in our communities as possible. Family practitioners face the prospect of more immediate changes to their practice rules as the Family Procedural Rules Committee closes its consultation on 2 March 2021 on the changes to the Family Practice Rules required to implement the Divorce, Dissolution and Separation Act 2020 (‘DDSA 2020’). The DDSA 2020, which received Royal Assent on 25 June 2020 and was broadly welcomed by practitioners, is due to come into effect in autumn this year, aims to remove the need to show irretrievable breakdown in the dissolution of marriages and civil partnerships (and also in judicial separations) under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004. It is hoped there will be less emphasis on blame and the encouragement of a nonconfrontational approach in family proceedings, for the benefit of all, especially the children. Property practitioners face continuing uncertainty over the possession claims. At present, it remains to be seen whether the moratoriums on claims on residential and commercial property claims until 31 March 2021 will be further extended. More broadly, there is the prospect of reform following the government’s indication in December 2020 of its intention this year to conduct a review
of commercial landlord and tenant legislation. Up for the anticipated discussion are issues concerning the provisions of Part II of the Landlord & Tenant Act 1954, including its security of tenure provisions, the arrangements for payment of rent together with an assessment of the impact of the pandemic on the relationship between commercial landlords and their tenants. These are but a few examples and I am all too aware that practitioners in all practice areas face ongoing challenges in delivering legal advice to their clients. The legal professional has always had its pressures and the increased isolation that lockdown has brought can only have added to these. Many will be able to deal with the stresses of work through their families, broader social networks and natural resilience. A significant proportion, however, will not. I would encourage anyone who is struggling to seek help. An organisation doing particularly valuable work is LawCare (www. lawcare.org.uk - Helpline 0800 279 6888). The charity works to promote good mental health and well-being in the legal community (fee-earners, support staff and concerned family members) through a network of over 100 trained volunteers (if you would like to become involved, details are available on the LawCare website). However we approach the challenges this year will bring, we need to look out for each other. The Council is here to serve you so if there are any issues you wish to raise about what is happening in Hertfordshire, please do not hesitate to contact us. I look forward to working with my colleagues on the Council to ensure that our Law Society continues to meet the challenges constructively and confidently. Neil Johnson President, Hertfordshire Law Society, 2021
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Articles
Private Client Update H M Revenue & Customs – Trust Registration Service
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n 2017, the Trust Registration Service (‘TRS’) was introduced by H M Revenue & Customs following the adoption of the 4th Anti Money Laundering Directive by the UK Government. The TRS currently applies to relevant taxable trusts. Until recently trustees were only required to register a Trust if the trust became or was liable for any of the usual taxes, such as Income Tax, Inheritance Tax, or Capital Gains Tax etc. Following the Fifth Money Laundering Directive and updated Trust Registration Service which came into effect from 5th August 2020, the requirements have been extended to include most trusts, not just those with a tax liability under the current rules. This means that all trusts in existence at 10th March 2020 (with the exception of a limited number of trusts – see below) must be registered on the Trust Registration Service. There is currently a transitional
period whereby the deadline for new registrations or providing the additional information required is extended to 10 March 2022. After this time, all relevant trusts that are not already on the register and fall into the reporting requirements to register on the TRS will have 30 days from 9 February 2022 to register in time for the 10 March 2022 deadline. Failure to register a relevant trust may incur a penalty. In addition, once a trust is registered on the TRS the trustees of registered trusts which incur UK tax liabilities, must notify H M Revenue & Customs of any changes to registered information within 30 days from the date the trustees become aware of the change. Trustees should be aware of this requirement as failure to comply may also result in a penalty being issued. Certain categories of trusts are excluded from registration and, broadly, include trusts that are already required to
register in some other way, or are considered a low risk of being used for money laundering or terrorist financing. The types of trusts exempt from registration on Trust Registration Service, include UK-registered pension trusts, UK regulated charitable trusts, Pilot Trusts holding assets valued at less than £100, until further assets are added, amongst others. It appears that HMRC have chosen NOT to exempt bare trusts from registration. Trust law is increasingly specialist, as the obligations placed upon Trustees become more and more onerous. Many insurers now consider trust work to be high risk, and firms without a specialist trust team or practitioner may wish to refer to other Hertfordshire Law Society firms with the requisite expertise. Claire Sharp TEP Partner and Head of Trusts Debenhams Ottaway LLP
Yet another lockdown W
ell although there is another lockdown we do have great news in the household. Both my hoomans have had their first vaccination. I can’t understand why they are so excited as I hate it when I go to the vet for my annual check up and jabs. My mother also got excited just by going to the dentist – why? I like to help my mother with her work but I’m not sure that she thinks I am a great help. She has moved where she works so she can shut the door and stay lovely and warm. When it reaches the right temperature I sneak in to join her. My mother hasn’t been letting anyone in the house so I haven’t seen one of my favourite people for ages. I’m getting very fed up of not having any visitors. I did bring a live mouse in that I had hoped to keep as a pet but unfortunately it died in the under stairs cupboard without any help from me! I also wanted to keep a pet bird but my father wouldn’t let me! The only good thing is that they are not going away at all so they can spend a lot of time with me. They do seem to have a lot of “teams” or “zoom” meetings. Hopefully by my next article I will have something to report. Stay safe and have the vaccination if offered it. @princessgigi2019
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Hertfordshire Law Society Gazette
Advertorial
Acting for Seller and Buyer – The Classic Conveyancing Conflict Lorraine Richardson provides a reminder of conflicts of interest in conveyancing, focusing on one of the key areas where risk can arise: acting for both the buyer and seller in a transaction.
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onveyancing solicitors have got more to worry about than conflicts, haven’t they? It might seem that way, but avoiding conflicts of interest is an ongoing professional duty. Also, I would suggest that the current upheaval makes conflicts more likely, and thus more of a risk for conveyancing firms.
Solicitors should think carefully about whether their firm should act for seller and buyer in the same transaction. This article is written from the perspective of conflicts in conveyancing for solicitors. Licensed conveyancers are governed by a different conduct and conflicts regime. Anyone considering conflicts of interest should remember that an actual conflict of interest is not the requirement. The purpose of the Code of Conduct is to avoid conflicts arising in the first place. This is why solicitors must always be looking out for a “significant risk” of a conflict. A significant risk is sufficient for the solicitor to decline to act. It may be a cliché, but prevention is better than cure: avoiding a conflict in the first place is far better than trying to clear up the mess if a conflict arises.
ensure that it is in each client’s best interests for the firm to act. If a firm concludes that it should act for seller and buyer in the same transaction because it does not want to lose both sets of legal fees, this is a classic example of the firm putting its own interests above those of the clients. It is fair to say that solicitors’ firms have vastly differing approaches to matters of conflicts of interest: some firms take conflicts of interest very seriously and have a clearly defined process to follow, while others give this little or no thought. Whatever the attitude of the firm to conflicts, I suggest that all staff in a conveyancing team, of whatever experience, should be encouraged to trust their instincts in relation to conflicts and report any concerns to a more senior member of their team. ‘Knowing what you don’t know’ is a powerful risk management tool when it comes to conflicts. Lorraine Richardson is an experienced property solicitor, author and speaker, and Managing Director of property law training provider, Adapt Law Ltd (www.adaptlaw.co.uk)
The reason that identifying a potential conflict and avoiding it is so important is because if a conflict between clients arises during the transaction and the solicitor concludes that they are unable to continue acting, they should inform the clients accordingly, and cease to act. The solicitor should also advise the affected clients to seek legal advice elsewhere and will no doubt lose the costs on the file. When considering whether it is appropriate to act for the seller and buyer in the same transaction, some solicitors will apply the following criteria: • the clients are established clients of the firm • separate fee-earners act for the seller and buyer; and • each fee-earner is based in a different office These may look familiar. These criteria are, in fact, the exceptions to the prohibition for acting for seller and buyer which applied in the 2007 Solicitors’ Code of Conduct. They have not been applicable since 2011. While they might be helpful indicators when considering the overall risk of conflict, they are not in themselves exceptions which allow the firm to act. I suggest the starting point is that the firms do not act for the seller and buyer in the same transaction. The fee-earners involved should try to justify to themselves why they should act, and note their detailed considerations on the file. If the firm decides it can act in this situation, it should then obtain the informed consent in writing from all affected clients, to allow the firm to act. But acting for the seller and the buyer in the same conveyancing transaction should be an exceptional event. It is necessary to
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Advertising Feature
Fully qualified Financial Adviser talks of ‘tough but fulfilling’ journey T
he dictionary states the word ‘earn’ means to “gain deservedly in return for one's behaviour or achievements”.
Gordon Craft, Director of Chasebridge Wealth Management, says he “immediately saw potential” in Pippa from the start.
The definition could have been written about Pippa Judson who has shown everyone at Chasebridge Wealth Management how committed she is to her career.
“I realised very early on that Pippa was capable of achieving more, so I encouraged her to take on some technical challenges and we decided to help her qualify and sponsor the process,” Gordon says.
As of November 2020, the former senior adviser assistant achieved her level 4 diploma, officially making her a Financial Adviser.
Pippa signed up to the St. James's Place (SJP) Academy and has not looked back since. Her day now revolves around working with clients, drafting documents with recommendations and keeping one eye on the markets.
“It’s been a tough and challenging journey but is also hugely fulfilling,” she says. “Anyone that has gone through the St. James's Place (SJP) Academy knows it’s a 12-month commitment. The training and learning is intense and there are six exams to get through.” Although with three children at home, she says signing up to the course was a “family decision”, because her training would impact everyone at home. “My kids all still need me, and for 10 months I was having to travel to Bristol for one week out of every four, so I had to weigh up whether that was even feasible. In addition, for the other three weeks, I was still doing my day job and studying so it was a huge personal commitment on my part and one that, although tough at the time, is not something I will ever regret doing.” When Pippa joined Chasebridge Wealth Management three years ago she had no idea which direction her career path was set to take her. “When I first joined I had just had four years off to be at home with the children. I was after a part-time local job that I could fit in around the school hours and had no particular long-term plan. I definitely had no idea that I would eventually become a financial adviser,” Pippa explains.
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you. He is always there to support you and help you progress. Having that support is amazing.” For more information about Chasebridge Wealth Management, visit chasebridgewm. co.uk or contact Pippa on 01707 643555. Chasebridge Wealth Management Ltd is an Appointed Representative of and represents only St. James's Place Wealth Management plc (which is authorised and regulated by the Financial Conduct Authority) for the purpose of advising solely on the group's wealth management products and services, more details of which are set out on the group's website www.sjp.co.uk/products.
“Without doubt, one of the best parts of my job is helping someone who hasn’t got a clear idea of what they’re doing with their finances. Providing them with clarity and being able to hold their hand through the process is hugely rewarding and it’s helping them work towards financial freedom for the future." “For anyone who might be considering a career as a Financial Adviser I would say 100 per cent go for it. It’s not easy as it requires a lot of personal and professional commitment, but I would say it’s worth it. “I feel that I’ve been very lucky working for someone like Gordon who has created a company that values and supports
Pippa Judson
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Articles
Students Helping Family Court Users The Law School at the University of Hertfordshire has managed to overcome the Covid-19 restrictions to enable one of their pioneering pro bono projects to be relaunched online. finally the magistrates and clerk in the court room itself. We unfortunately only managed to attend court on two occasions before the first national lockdown took place. The FHDRAs were moved over to telephone hearings, and we could not initially see a way for a student to be involved in a helpful way for the LiPs.
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upport at Court was originally launched in March 2020 and was designed to provide Litigants in Person (“LiPs”) attending their first hearing in a private children dispute some practical and moral support. Statistics show that there is an increasing number of parties representing themselves in children cases, and this ultimately means them attending court on their own, or with a friend/family member. They are often emotional, have no idea what to expect, and have not prepared for the hearing in any way. Between June and September 2019, the court reported 14,659 new FHDRA (First Hearing Dispute Resolution Appointment) hearings, involving 21,736 children - a 5% increase on the same quarter in 2018. In around 40% of these first hearings, neither side had legal representation - a figure which has been steadily increasing since 2013 when legal aid cuts came into effect.
After further consideration and helpful discussions with the judiciary we have now been able to launch our online Support at Court Service. A new university webpage has been set up, with a helpful introduction from HHJ David Vavrecka, the designated Family Judge for Hertfordshire. It explains how the service works and the level of enough to interact fully with the court support the students can give. There is also a useful video on how to prepare for process and everyone dealing with it. a FHDRA, created by a group of students, Students received special training to and signposting to other organisations prepare them for the project – including who support LiPs. a session by HHJ Middleton-Roy. They then started to attend the local family We had our first virtual Support at Court courts at Watford and Hertford (with session in January and we hope to book in a lecturer supervising them) to offer a more over the coming weeks and months. free drop in service. They spent their Although, we would still ideally like to get day at court supporting a number of the students back at court one day in the LiPs – from helping to put their papers future – the “hands on” experiences there in order; explaining how to address the were second to none. Magistrates; to making notes during the hearing itself. This was of course a great The Hertfordshire Law Clinic remains open experience for the students - to learn online too. Further details are available on practical skills including dealing with real the university website and if any of you are clients, particularly in a stressful situation. interested in getting involved in helping to It was also really “eye-opening” for the supervise the students, please get in touch students to see how the court system with me. works in practice on a busy day and all the different court staff you interact with Amanda Thurston – from the security guard and usher, to Director of Law Clinic the CAFCASS officer and mediator, and a.thurston@herts.ac.uk
We met with the judiciary from the Hertfordshire Courts back in 2019 and it was heartening to see them overwhelming support our project. They recognized it would directly assist the unrepresented party, and also indirectly ensure the hearing runs more smoothly – as the unrepresented party would hopefully become informed
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Hertfordshire Law Society Gazette
Advertorial
An X-Press service for solicitors and conveyancing professionals X
-Press Legal Services was established over 20 years ago, with the aim of streamlining the property- buying process by providing specialist searches and reports combined with a personal service. The company has been so successful that it now provides over 400,000 conveyancing searches and reports to some 500 legal practices every year across England and Wales.
is that its offices are owned by local experts, who are supported by a dedicated national office. Jo French owns X-Press Legal Services covering Essex, Herts and Cambridgeshire and has been in business for over 7 years. She has built a strong network and works closely with local councils and other organisations providing searches and reports for her clients.
Whether you are dealing with a commercial or residential property being built, bought, sold, repossessed, re-mortgaged or redeveloped, X-Press Legal has the knowledge and experience to provide only the best data and reports.
Jo explains: “I am proud to live and work locally and therefore I know the area well, I have many loyal clients and I totally understand their needs.
To ensure that they can always provide a reliable and accurate service, the people at X-Press Legal have forged working relationships with industry specialists such as Ordnance Survey, Groundsure, Landmark and the Coal Authority. The company is also an Executive Member of the Council of Property Search Organisations (COPSO).
“At X-Press Legal Services, we make it our business to provide our clients with a highly professional, fast and friendly service that’s tailored to their needs, nothing is too much
For more information about XPLS services in Essex, Herts and Cambridgeshire please call Jo French on 0330 159 5356 xpresslegal.co.uk
A key reason for the company’s success
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trouble. As you would expect we use the latest technology to deliver our high-quality, datarich reports which comply with all the industry regulations.”
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Articles
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I
f you ask a typical teenager what they think
So
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Hertfordshire Law Society Gazette
Advertorial
Fit, Feasible and Fair? A
c o m p a n y v o l u n t a r y arrangement (“CVA”) is a rescue process which is used when a viable business is in need of a restructure but is unable to afford the associated costs and/or it is experiencing cashflow problems or creditor pressure and is in need of some breathing space.
In order for creditors to consider a CVA proposal, they would be provided with an estimated comparison statement which compares the dividend outcome in a CVA to an alternative insolvency process i.e. a liquidation or administration. It is key to ensure that, when proposing a CVA, all creditors in a particular category e.g. unsecured, are treated fairly.
A CVA is typically based on affordable monthly contributions from profits over a period usually between 3 and 5 years. The monthly contributions are paid to the Supervisor of the CVA, a licensed insolvency practitioner (“IP”), which is held on trust for the benefit of creditors. The trust funds are distributed to creditors during or at the end of the CVA.
Recently, we have seen a number of CVA proposals where creditors within the same category have been split in order to receive different dividends. For example, a CVA we advised on recently had proposed to split out landlords from trade creditors and then trade creditors were split into essential and nonessential categories. The timing and amount of the dividend for each category was different even though they are all unsecured creditors.
Compared to other insolvency processes, there is very little legislation for CVAs. The proposed terms of a CVA are set out in a bespoke proposal and if approved by the required requisite of creditors, the terms are legally binding on all creditors.
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However, post Covid-19, it would appear that CVAs are evolving.
In addition, some CVAs we have advised on do not have an end date, the duration of the CVA is unknown. Due to not being able to produce business forecasts as a result of
lockdown, the proposal simply states that the CVA will be fully implemented when the proposed dividend has been paid. In an extreme situation, that could be ten years or more. Since the start of the pandemic, the insolvency profession has very much been focusing on rescue and this is clearly evident when reading current CVA proposals. However, when advising on a CVA, the IP needs to be satisfied that what is being proposed is fit, feasible and fair to all creditors. In some of the cases we have seen, we are not sure that the terms are fair to all creditors but what is being proposed is necessary to ensure survival of the business in very difficult circumstances. It may be only a matter of time before we see new case law being introduced as a result of the current CVAs being proposed. Suki Bains If you would like further information on CVAs or you have any general insolvency queries, please do not hesitate to contact any of the BRI management team on 01462 429718
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Articles
The responsibility of experts in relation to their written evidence
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recent judgment from the Honourable Mr Justice Marcus Smith provides a cautionary tale for experts. The judgment contains the following in section 13: (h) The last point that I make in relation to Professor Morgan’s evidence concerns less his oral evidence and more the written reports he submitted before the hearing and which he affirmed represented his expert opinion when he gave his evidence in-chief. I am afraid that Morgan 1 and Morgan 2 (Morgan 3 is a short and not particularly material report) were, in critical respects, disingenuous documents, written in a manner that seemed to me calculated, not to assist, but to mislead, the court. I am very conscious that this is the most serious criticism that one can make of an expert, and I do not make it lightly. The main points that have compelled me to this conclusion are dealt with fully in paragraphs 62 and 67 of this judgment, and I have sought to be clear throughout this judgment why I am not accepting evidence on certain points. Because the points go very much to the substance of the issue that I must determine, it is not possible to anticipate them here, save in the most general of terms. Suffice it to say, for the reasons given in these paragraphs, I am not confident that I can rely on Professor Morgan’s reports, save with a degree of caution and reserve that a judge would not normally attach to the report of an expert.
of strict confidentiality, to the parties and their legal advisors. Professor Morgan did not see the draft. Counsel for Mylan - in addition to identifying typographical errors and making other points - questioned the appropriateness of my criticisms of Professor Morgan, and referred me to the decision of the Court of Appeal in Re W ([2016] EWCA Civ 1140), a case which considered (in rather different circumstances) the extent to which it was appropriate to make factual findings in relation to persons not directly before the court (i.e., witnesses not parties), but named as part of a factfinding exercise conducted by a judge in the Family Court. Whilst I do not consider Re W to be precisely on point, I have revisited the draft with Mylan’s points regarding Professor Morgan specifically in mind. I am grateful to Mylan for raising the matter so clearly - it was right to do so. However, having considered the matter most carefully, I have not materially changed the terms of the draft, and I should explain why: (i) An expert is responsible for his or her evidence, including the precise wording of any report submitted to the court under the name of that expert. In many cases, the expert will be in need of, and will receive, assistance from the solicitors (or other lawyers) who have retained that expert. That is entirely understandable, but only serves to enhance the importance of the expert being entirely satisfied that his or her opinion is properly reflected in the report(s) submitted in that expert’s name. This is the duty of the expert, and it is not one that can be delegated.
(iii) It must be emphasised that such criticism is not intended in any way to be personal or punitive. It is an intrinsic part of assessing the weight to be attached by the court to the expert evidence that is adduced before it. The criticisms that I have made of Professor Morgan must be seen in this light. They are made purely and simply because I need to explain to the reader of this judgment precisely why I have preferred - on critical points - the evidence of Professor Roth over that of Professor Morgan. That has involved a very close parsing of material parts of Professor Morgan’s written evidence, together with the oral evidence he gave in relation to that written evidence. (iv) To put the same point differently: it would be unacceptable for me to say simply that I preferred the evidence of Professor Roth over that of Professor Morgan, without saying why. Oftentimes, the “why” will turn on technical matters of legitimate dispute between the experts, and the judge will explain why the approach of one expert has been preferred over that of another, it being accepted that each expert was doing his or her best to assist the court. That is the ordinary case. This for reasons that I have set out in this judgment - is not such a case. (v) The suggestion was made that the substance of the criticisms I have made of Professor Morgan’s evidence were not put to Professor Morgan. I do not accept this contention. All of the aspects of Professor Morgan’s reports that I have seen fit to criticise were put to Professor Morgan by Mr Waugh, QC. I have - as is my duty - drawn my own conclusions from the totality of the evidence. The manner and form in which I have evaluated Professor Morgan’s evidence in light of the totality of the evidence is - as it should be - a matter for me.
(ii) An expert will be giving opinion evidence in relation to a subject-matter with which a lay person - specifically, in this case, the judge - will be unfamiliar. That is why the evidence is needed. It is incumbent on the expert not merely to present evidence that is technically correct, but that makes a fair presentation of the (i) As is normal practice, a draft of this expert’s opinion. If the expert does not do Simon Berney-Edwards judgment was circulated, on terms that, then criticism is liable to follow.
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Hertfordshire Law Society Gazette
Advertorial
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Charity
Video Witnessing of Wills A Welcome Step, But Only if Safeguards are Met A Charity, we see video witnessing as a significant and welcome step to make Willwriting more accessible in Covid times. However, we’re conscious too that this decision brings in new areas of risk when it comes to issues such as undue influence and fraud. So, in these initial stages at least, we’d view it as a last resort. “In other words, this route is ideal for those that it was created for – those that can’t have their Wills witnessed in person as they are isolating or for other reasons. But it won’t be right for everybody.” With inheritance disputes on the rise, it seems all the more important that people’s Wills are completed correctly, minimising the room for doubt or contention.
Rob Cope
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his September, a Statutory Instrument (SI) was laid in the House of Commons, enabling changes in the way that Wills can be legally witnewssed. The change follows an announcement from the Ministry of Justice earlier this Summer, which recognised the difficulty for those who were shielding from Covid-19 or selfisolating to follow the normal legalities of making a Will – namely it being witnessed by two people. The new law allows the witnessing of a Will to be carried out through video. After the Will is signed by the Testator, it is then posted to the two witnesses to sign through video conferencing too. It applies to Wills made from 31 January 2020 – when the first coronavirus case was registered in the UK – and is expected to remain in place until January 2022. Remember A Charity – the 200 strong coalition of charities working to inspire legacy giving – has welcomed the change, providing that the right sufficient safeguards are in place. Rob Cope, director of Remember A Charity, says: “With over 100 people across the UK leaving a gift to charity in their Will every day, charitable Will-writing is becoming
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increasingly popular and it’s all the more vital now while charities are facing critical funding shortages linked to the pandemic. Ultimately, the more accessible the UK Will-writing environment becomes, the easier it will be for people to leave a gift in their Will.” Legacy giving is the largest single source of voluntary income, raising over £3 billion for charity annually. This income has enabled many charities to continue to offer services during the height of the pandemic, while so many other funding streams were closed or heavily reduced, including events like the London Marathon through to charity shops. The consortium highlights that even a small increase in the number of people leaving a gift could raise millions of urgently needed funding, helping to tackle the current funding threat to frontline services. Remember A Charity stresses the importance of always having sufficient rigour and safeguards in place to protect the public and ensure their final wishes will be met.
Cope adds: “We’d encourage anyone writing a Will to seek professional guidance and support about the best route for them. A professionally written Will is invaluable, helping to ensure that people’s final wishes will be met, and that they can include all those things that truly matter to them; family, friends and good causes alike.” Since the pandemic took hold in the UK in mid-March, demand for Willwriting and charitable bequests has risen considerably, with Remember A Charity receiving twice as much traffic to the ‘Making a Will’ section of its website. He concludes: “The pandemic has helped people see the importance of getting their affairs in order and encouraged us all to reflect on those things we truly care about. This includes the charities that so many of us rely upon and the causes we are passionate about in our lifetimes.” Find out more at: rememberacharity.org.uk.
Cope says: “There are few that would argue with the fact that the process of Will-writing in the UK needs updating. At Remember
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St Columba’s College
S
t Columba’s College is an independent Catholic day school for ages 4 to 18 in the heart of St Albans. It welcomes families of all faiths and none.
Just six months on from announcing the move to co-education, St Columba’s welcomed its first girls as pupils in Reception in January.
than simply an academic hot house. We foster a love of learning and a sense of personal, moral, social and cultural education.”
“We're excited to be adapting to the needs of our community,” says Headmaster Mr David Buxton, “and we look forward to providing a Columban education to boys and girls.”
St Columba’s pupils are supported by a dedicated academic and support staff, and they become members of a strong and vibrant community of alumni, parents and staff, where lifelong friendships are established.
For most pupils at St Columba’s, their educational journey starts in the Prep School then continues into the Senior School at age 11 before entering Sixth Form at 16. The school also welcomes applications from external candidates for entry into the Senior School at 11+, 13+ and Sixth Form.
This year the College is welcoming girls as pupils into the Lower Prep (Reception, Year 1 and Year 2) and Lower Sixth (Year 12). This will be followed by a phased transition to full co-education throughout the school.
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Mr Buxton says: “Throughout each phase of education, we create a nurturing environment where each pupil is challenged to achieve their own best academic standard, while becoming confident, resilient and compassionate individuals. “We strive for academic excellence while aspiring to be very much more
Over the last year the school’s remote learning programme has been a great success with parents and pupils of all ages. Staff have worked tirelessly to utilise a range of resources to deliver interactive and engaging lessons, following the normal timetables, and St Columba’s continued its provision of strong pastoral support. The school has also embraced the latest technology for its Admissions processes holding a series of innovative, very successful online Open events during the pandemic. To find out more and to register for an event, contact the Admissions Team on admissions@ stcolumbascollege.org or 01727 892040.
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Saving time has never been more important, nor has working together. ‘T
ime is precious, more valuable than money’, is the old adage, though the meaning of time in a property transaction can be very different depending on your stakeholder role. A clients’ view of time is often based on outside factors, which, if misjudged, can lead to a great deal of frustration. I also don’t think there are many property professionals in the UK that are happy with the current process, pipeline conversion rates or time to completion. Cases can always complete sooner. It’s clear that every party in the process would love to save time on property transactions – but how? In an industry of paper, pens and high street solicitor offices, the clients often have no
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technology available to them during a transaction, so are most easily pleased and ready to embrace change. You can understand client frustrations, too. Unless you work in the industry, you can’t understand the legalese, track a process through a combination of post-it notes, spreadsheets, emails and sporadic phone calls. It’s no surprise that home moving is one of the most stressful experiences in life, for these reasons. So how do we change things for the better? In my view, the only way to meaningfully save time in the process is by creating an ecosystem that connects our community together
and avoids bringing more complexity to the process with bit part solutions. From the outset, we have taken this approach with DigitalMove. From property listing, all the way through to legal completion, we are laser focused on how every interaction can be communicated to every stakeholder. I am sure I speak for all conveyancers when I say nobody wants “yet another log in” – by focusing on the touchpoints and interactions, we can have a holistic view of every transaction and remove these sorts of barriers from the technology solution. This relies on all parties buying in to the solution. Many businesses are hostages
to habit and their internal systems, and some firms have developed their own technology in-house, believing it will give them greater control. However, very few businesses have the resources to develop and maintain inhouse systems, making our solution, DigitalMove, a much more attractive proposition. The future for property technology lies in companies becoming open and willing to engage with others in the transaction community. We are bringing that future into near focus, and we’d love to speak to you about how it will benefit your firm. Tim Price, Head of Business Development at DigitalMove
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Articles
Landmark Planning: A Clearer View of Future Plans
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ere at Landmark Information, we have provided planning application insights and information for residential property conveyancing through for many years. I recall the now legendry Bird & Bird transaction case, in which the conclusion found that ‘Changes to the surrounding environment, brought about through development are an important factor in protecting a client’s investment pre-acquisition’. Of course, a preference or indifference to planning proposals in its various forms is very much a personal view. Property lawyers and conveyancers may air on the side of caution following guidance, preferring to simply understand the proposed purchase property and to rely on the seller ’s information. Homebuyers, however, have a right to understand any impact, positive or negative, that a nearby development may have before they commit to a purchase. It is important to be aware of any potential changes within the surrounding area that would affect the use, enjoyment or even value of a property from planning and building regulation decisions. But how do you make the extent of a development application clearly understood? As part of Landmark’s ever-evolving data and technology provision, we have
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recently merged our Plansearch reports The viewer includes a date filter which into a newly enhanced Landmark allows the homebuyer reduce the amount of data presented and helps to Planning. provide focus on what really matters Uniquely, the report displays data on to them. In some cases, reducing the majority of the UK’s large planning hundreds of applications down to just applications, such as a new housing three or four. estate, as polygons (boundaries). This The Riskview viewer includes means both conveyancer and client will benefit from a visually clearer, more (where possible) a clickable weblink realistic view and understanding of for each recent planning application. the extent or potential impact of larger The homebuyer can then look further planning applications, rather than into the application via the authority relying on a list, single mapped point planning portal. Together, RiskView’s unique time-saving features help the or buffer to work it out. property professional add value to their The report not only delivers details of home-buying client whilst reducing planning applications from extensions time spent dealing with planning to large developments but also provides related enquiries. information on what future uses of land The Government is still committed are being proposed for the surrounding area, alongside the Local Authority to 300,000 new homes per year even policies and constraints. It also includes these unprecedented times. The Prime key neighbourhood information such Minister ’s ‘Build, Build, Build’ speech in July last year was followed by a series as: of new laws that came into effect on 1 • Housing September 2020. The aim is to deliver • Demographics new homes and revitalise town centres • Schools across England alongside a permanent • Local amenities extension to the existing permitted • Rights of way development rights. To help both property conveyancer In the current climate, who can guess and client, all the data within the report is supported by easy-to-understand the impact of these laws? To what extent will they change the places we live, or guidance and next steps. want to live? Determining what is important Whatever the future holds, surely to the home buyer with regards to planning can be difficult and can lead the best outcome for conveyancers to large amounts of time being spent and homebuyers is a more transparent on reviewing data which is not of transaction, which provides the insights interest or concern to the home buyer. needed for informed decisions. Large volumes of data can also lead Selecting the Landmark Planning to the homebuyer missing important report or Riskview Residential information about their purchase. demonstrates good due diligence Landmark’s gold standard all in taking all practicable steps to in one enviro-report RiskView reasonably identify information that Residential removes this pain for the the client would want to know. legal conveyancer and home buyer by presenting planning applications, By Allie Parsons, including the large sites as polygons Customer Success Consultant, and constraints through its advanced, Landmark Information simple to use, dynamic online viewer. www.landmark.co.uk Hertfordshire Law Society Gazette
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Articles
Bell vs Tavistock: Does informed consent stand in the way of autonomy? I
n a landmark court case, judges ruled that children under 16 years of age could no longer be prescribed puberty blockers unless this has been authorised by the court. The reason: under 16s are not likely to be competent enough to “understand and weigh the long-term risks and consequences of the administration of puberty blockers”1. The judgement did not stop there, though. It also ruled that where persons over 16 years of age are involved, “clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment”. The legal challenge was brought against the Tavistock and Portman NHS Trust in London. One of the claimants was Keira Bell, who was prescribed puberty blockers at 16 by the Trust’s GIDS (Gender Identity Development Service) clinic, but later regretted transitioning 2.
The High Court ruling was not quite the outcome people expected and, naturally, led to a polarised reaction. While some welcomed it as “a victory for common sense”, others were concerned it would curb young trans people’s rights 3. The issue of informed consent was a fundamental part of the judges’ final decision. However, it also begs the question: Could informed consent stand in the way of young individuals’ autonomy over matters regarding their health? In medicine, informed consent has been a cornerstone for a long time. It rests on the principle that patients need to understand the possible consequences of their decision, prior to agreeing to or refusing certain treatment. It is “permission granted in the knowledge of possible circumstances” 4 rather than a simple “permission for something to happen or agreement to do something” 5. In DNA testing, too, we must have “appropriate and qualifying” consent for each sample to be tested. Consent is
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required from each adult party that is to be tested. If the test involves a child under 16, then consent must also be obtained from a person with Parental Responsibility for that child. This is where it gets interesting: if the mother were under 16, she could give consent for her child to be tested. However, someone with Parental Responsibility for the mother would have to consent on her behalf for her own sample to be collected... which is a fascinating paradox we shall go back to in another article! Although in the Bell vs Tavistock case treatment with puberty blockers would not be undertaken solely on parental consent,
it was argued that “if the child’s consent was rendered invalid, the treatment would continue to be lawful if the parents had consented.” Case law offers a mixed bag of conclusions on that matter. In Gillick vs West Norfolk and Wisbech Health Authority [1986], the House of Lords reached a majority that a doctor could lawfully give contraceptive advice and treatment to a girl under 16, without the consent of her parents 6. But this could only be done if she demonstrates sufficient maturity and intelligence to understand the nature of the treatment. In Re W (a Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam.64, the court ordered that a girl under 16, who was suffering from anorexia nervosa, be transferred to hospital specialising in eating disorders7. This was against the girl’s wishes. Although she was considered to have sufficient intelligence and understanding to make informed decisions, it was ruled that she should still receive treatment. The court emphasised that due to the nature of anorexia nervosa the patient does not wish to be cured but fulfilling such wishes could lead to severe consequences or even death. Unlike contraceptive treatment and anorexia - or even DNA testing - not enough is yet known about the long-term effects of puberty blockers. This arguably makes achieving informed consent almost impossible both for parents and children, as
the information given to either party would not be exhaustive. Therefore, it is not only the patient’s age that impacts on their ability to make an informed decision - it is the quality of the information, too. Clinicians must not be blamed for this, however, since they can only provide what is currently available from research and the literature. Every scientist would agree there is always more to explore on any topic, but when the knowledge gaps about a treatment are so significant, access to it should be regulated with the utmost strictness. Of course, age cannot be entirely ignored either. Adolescents’ ability to assess the longterm consequences of certain treatments may come under scrutiny. A child’s experience of gender dysphoria must not be invalidated, but when the remedy could have irreversible effects on a person’s fertility and sexuality – experiences someone under 16 may not have been through yet – deciding whether such medication should be prescribed must not be rash or emotional. With that being said, young people’s ability to make decisions regarding their own health must not be taken away from them. However, institutions also have a responsibility to safeguard children’s wellbeing and step in, if and when absolutely necessary. It is a delicate balance to strike and an individual approach would be required in each case. But when the consequences are likely to be very serious and much remains unclear about the long-term side effects of a treatment, the informed in “informed consent” can become elusive and further scrutiny is required to protect vulnerable children. About the author: Dr. Neil Sullivan 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. Please see: www.dadcheckgold.com Tel: 0191 543 6334 e-mail: sales@dadcheckgold.com
Hertfordshire Law Society Gazette
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Explanation of Terms Puberty blockers, also known as hormone blockers, are used to delay puberty. They supress the release of sex hormones, including testosterone and oestrogen, and stop the body from developing breasts, periods, facial hair or deeper voice8. The medication is prescribed to young people experiencing gender dysphoria, as well as to treat premature puberty in children. It is described as physically reversible, if stopped, but it is not known what the psychological effects may be. It is also unclear if puberty blockers affect the development of the teenage brain or children’s bones9. Gender dysphoria is a “sense of unease that a person may have because of a mismatch between their biological sex and their gender identity”10. It could be so intense that it leads to feelings of depression and anxiety. According to the NHS, other signs of gender dysphoria include low self-esteem, becoming withdrawn or socially isolated and taking unnecessary risks11.
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Transgender describes a diverse group of people whose internal sense of gender is different to the one they were assigned at birth. To attain transgender status in the law, an individual must be diagnosed with gender dysphoria by a professional and then apply for a gender recognition certificate under the Gender Recognition Act, 200412.
5
onsent Definition of Consent by Oxford C Dictionary on Lexico.com also meaning of Consent
6
K, Gillick v. West Norfolk and Wisbech U Area Health Authority (hrcr.org)
7
e W (A Minor) (Medical Treatment) R PubMed (nih.gov)
8
W hat are puberty blockers? - BBC News
9
ender dysphoria - Treatment G - NHS (www.nhs.uk)
Notes 1
B ell -v- Tavistock judgment (judiciary.uk)
2
uberty blockers: Under-16s 'unlikely to P be able to give informed consent' - BBC News
3
uberty blockers ruling: curbing trans P rights or a victory for common sense? Society, The Guardian
4
I nformed Consent Definition of Informed Consent by Oxford Dictionary on Lexico. com also meaning of Informed Consent
10
G ender dysphoria - NHS (www.nhs.uk)
11
ender dysphoria - Signs G - NHS (www.nhs.uk)
12
ender Recognition Act 2004 G (legislation.gov.uk)
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Revised Anti-Money Laundering Professional Guidance now in Force The net effect of this is that even if the firm excludes liability for questions of taxation in the work that it undertakes it will still now be regarded as being a tax adviser if, for example, it advises a client that there are possible tax implications to what is being planned and suggests that the client should seek specialist help on the issue from elsewhere. This may well mean that smaller firms focusing on such areas as family or employment work may now be seen to be regulated firms, and so will need to ensure that the regulatory requirements are now being met.
T
he SRA, acting in conjunction with all of the other legal regulatory bodies in the UK as part of the “Affinity Group”, has now published its updated professional guidance on how those affected by the Money Laundering Regulations must ensure compliance with them. Noticeably longer and more detailed than the previous guidance, the clear message is that compliance is not optional, and that ignorance of what is now required of firms will not stand in the way of regulatory, and quite possibly, criminal sanctions. There is an important cautionary note here if you are one of those many sole practitioners or smaller firms that regard themselves as being outside the scope of the Regulations. The position here changed some 12 months ago when the Amendment Regulations took effect, mostly in order to give effect to the Fifth EU Directive. One of the more significant changes made then was to the definition of who would be regarded as being a “tax adviser”, and as explained by the SRA in their guidance note from late last year. The revised definition is now described by the regulator as being “broad” and extending “beyond providing advice and includes assistance and material aid”.
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For the most part the revised guidance does not change the regime that those who have been regulated for some time will be familiar with. Rather, it provides more guidance on some of the more troublesome elements that have been part of the regime for many years. Still, however, the main practical problem is that there is no one standard approach that will guarantee that all firms are compliant with what is now expected of them. The levels of funds that might seem standard in large commercial departments are quite likely to seem anything but for a specialist commercial law adviser more used to lower value transactions. For this reason the importance of the firmwide risk analysis exercise that is required by r.18 of the Money Laundering Regulations and its importance in shaping each firm’s individual AML policy and procedures is again stressed. The risk assessment process is explained in more detail at section 5 of the new note and should probably now be seen as the first very clear “to do” item for those firms subject to the regulations. You should set out to undertake the review of your “Policies Controls and Procedures” as now required by section 5. This is also likely to be a timely step since it is now just over a year since the
SRA demanded of firms that they should certify to them that they had undertaken such a risk assessment, and since the need to keep this under constant review is stressed the review should be seen as the first step to take now in a review of each firm’s policy and procedures. Throughout the revised guidance there is a greater degree of explanation on the various aspects that have long formed part of the overall AML regime, such as the attempt made to clarify the operation of the law of privilege in the reporting of suspicions to the National Crime Agency. Elsewhere there are also updates covering other provisions which have taken effect since the last edition of the guidance note appeared in 2019. Amongst such content see those dealing the requirements of BOOMs (beneficial owners, officers and managers) at 4.2.1-3 and the new section 7 on technology. It is recognised that checking the identity and address details of individual clients without having met them in person has now become more commonplace, but that technological advances can serve to reduce the increased risk of not being able to do so. Finally, private client lawyers in particular should note the relatively new provisions on the registration of taxable trusts at section 12.4. In summary, the challenge now is to ensure that the necessary systems are not just in place, but that they are also proving to be effective. In the meantime law firms large and small can expect greater regulatory attention in this regard, and a less sympathetic response when problems arise. Matthew Moore is a solicitor and one of the directors of Infolegal Ltd which provides compliance support on this and other regulatory topics: mattmoore@infolegal.co.uk.
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Top 10 compliance mistakes and how to avoid them Compliance should be neither an afterthought nor a burden – it should be a natural consequence of running your law firm and managing your accounts well. The SRA will tell you that anti-money laundering and mishandling client money are the two most common mistakes law firms make. So how do you avoid the SRA’s intervention? Here are 10 compliance mistakes law firms most often fall foul of: 1. Not paying attention to the latest SRA Accounts Rules: The SRA regularly updates its rules, and it’s up to you to be aware of these changes and understand how it impacts your accounts function. The best thing to do is follow the SRA news and adopt a compliance-centric approach to your business in order to avoid serious SRA Accounts Rules breaches. 2. Incorrectly operating a client account: Ensure your client account includes the required level of information and that you don’t provide banking facilities to clients or third parties. It’s essential that your staff are aware of the relevant money laundering regulations and what constitutes provision of banking facilities. On the same point, don’t suffer lack of understanding about how to operate without a separate client account, should you choose this route. SRA’s Rule 2.2 is all-or-nothing. It gives you the choice of exemption from having a client account (across the whole practice, not on a clientby-client basis). Whilst this may sound like an easier option (and cheaper as you don’t need accountants’ reports), it could create more work by asking clients to pay third parties directly and subsequently making sure these payments have been made. Alternatively, another option permitted by the SRA is Third Party Managed Accounts which can provide client onboarding checks, card processing and outsourced client account services within one solution. You must decide what makes the most sense for your business. 3. Not maintaining a clear breach register: You and your employees must be suitably trained to spot suspected breaches, and you must document how discovered breaches will be rectified and keep a register of this information. 4. Not having a payment of interest policy: Your policy of interest should clearly state how money held in your client account will be handled, including when it becomes due and the rates you’ll use. 5. Not thoroughly checking your residual and suspense balances: Analyse which of these monies you currently hold, determine if you should be holding them, return to the proper recipients where possible, and log what you’ve done if these people can’t be located. 6. Not defining ‘promptly’: This word is dotted throughout the revised SRA
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Accounts Rules. What ‘promptly’ means to one person is different to another. Choose suitable timeframes for your firm and clarify in your office policies. 7. Not setting realistic service level agreements (SLAs): There’s no point in setting impossible-to-meet timescales. For example, if you’re a rural practice with no easy access to a local bank or building society, don’t set tight timings regarding paying in cheques. Instead, be honest and upfront about what’s feasible for your unique circumstances and incorporate that into your contracts and policies. 8. Not supporting your COFA: Your accounting system should allow you to produce a tri-balance comparison of your client bank, cashbook and client ledger balances. By checking and signing a report of this nature, your COFA can meet his / her SRA obligations and you’ll have the visibility you need to make sure compliance measures are being met. 9. Purchasing the wrong legal accounts software: Ask for recommendations from trusted peers of what works best for them. Be sure to probe any potential software provider about how they handle system enhancements to address everchanging rules. Your supplier should be rolling out new and enhanced functionalities which allow you to streamline compliance procedures and ensure you’re constantly protected. 10. Not collaborating and communicating effectively: Compliance is not a one-person task. It’s the duty of everyone in your organisation from your cashiers and compliance officers to senior leaders and solicitors. Seek input from all stakeholders when reviewing compliance-related policy documents and roll out updated documentation with appropriate training company-wide. Keep your accountant informed always so audits can be done quickly and efficiently. Summary: Hopefully our tips will help you fulfil your regulatory compliance responsibilities with ease. This excerpt is taken from our ’15-Step Guide to Starting Your Own Law Firm’. To download our guide in its entirety, and learn how to keep client money safe and avoid money laundering scams, please visit www.quill.co.uk/ Legalpracticemanagementforstartups. Julian Bryan is the Managing Director of Quill, which helps law firms streamline, and run their practice better and compliantly by providing simple and easy-to-use legal accounting and
case management software, as well as outsourced legal cashiering services. Julian is an advocate for quality software standards and served as the Chair of the Legal Software Suppliers Association from 2016 to 2019. He can be reached at j.bryan@quill.co.uk.
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