issue 49 Winter 2021/22
Hertfordshire Law Society Gazette
Welcoming our new President, Steven Hamilton Also this issue: • Hertfordshire Law School Hosts Alumna Dr Grace Ononiwu CBE • Introducing Christiane Colbon • Mewsings of a Princess and much more...
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Contents
Hertfordshire Law Society Gazette
Contents issue 49 Winter 2021/22
4
Council Members for 2022
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From the President
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Introucing Christiane Colbon
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Mewsings of a Princess
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Hosting Dr Grace Ononiwu CBE
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Employers and the end of
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Advertising
Coronavirus restrictions
19
EWI Conference
13
Charitable Wills on the rise
20
EWI Core Competencies
14
How can Law firms reduce their
24
Law Society News
carbon footprint?
26
A very different Bar Conference
Drainage & Water report for new
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Book Review
build homes
30
Family Tree verification
16
Design David Coffey
Published: Winter 2021/22
Simon Castell Managing Editor
Accounts
Jeremy Chandler-Smith
Tony Kay
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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 2022 President Steve Hamilton Taylor Walton LLP (Harpenden) Private Client Vice President Diana Kirsch University of Hertfordshire (Hatfield) Hon Secretary and Treasurer Jessica Moseley Debenhams Ottaway (St Albans) Immediate Past President Neil Johnson HRJ Foreman Laws (Hitchin) Civil Litigation
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Members Marilyn Bell SA Law (St Albans) Family David Bird Crane & Staples (Welwyn Garden City) Private Client & Trusts Jeremy Chandler-Smith JCS Solicitors (Codicote) Sole Practitioner Paul Davies Hamilton Davies (Stevenage) Employment, Family and Litigation
Jessica Moseley Debenhams Ottaway LLP Probate and Trusts Dilpesh Shah Pellys Solicitors Limited Property & Commercial
(From January 2022 until 31 December 2023) National Council Member
The Law Society
Josephine Duchenne National Council Member for Hertfordshire and Bedfordshire (from 15th October 2021)
Relationship Manager – East Jack Dunkley Parliamentary Liaison Officer Judith Gower
Claire Sharp Debenhams Ottaway (St Albans) Private Client Christiane Colborn Elite Law Solicitors Gary Smith Nockolds Solicitors Limited (Bishop’s Stortford) Employment
Hertfordshire Law Society Gazette
Editorial
From the President... I am delighted to have been elected as your President for 2022. It is a great honour and a privilege to represent such a well-respected organisation. I will do my best to represent the interests of you, our members. For those of you that I have not had the pleasure of meeting, my name is Steve Hamilton, and I qualified as a solicitor in 2007. I studied Law and Criminology at University with the original intention of pursuing a career in the police. However, during my studies I found that I had a more natural aptitude for the technical side of law and from there I went on to complete my Legal Practice Course (LPC). My training contract was with a regional firm in the North Hertfordshire and Central Bedfordshire areas. I subsequently joined Taylor Walton upon my qualification as a solicitor in 2007; I was a little fresher faced and had a little more hair, but being newly qualified, I also had some learning to do. Taylor Walton is highly experienced at nurturing and encouraging its trainees and newly qualified solicitors and this shows in its staff retention. Indeed, a significant number of our present partners started their careers at Taylor Walton as trainees. I’ve also done much learning outside of the legal world: I’ve got two sons who keep me terrifically busy playing sports, helping with homework and learning about Pokemon and rollercoasters. We are an outdoorsy family and love walking, cycling and geocaching. These activities really help to refresh the mind ready for another intense week at the office. Spending time with my family is one of the ways I like to recharge at the weekend. Attending Law Society meetings have been another useful tool for me to vary my working week away from my office family. I am taking over the role of President at a very strange and surreal time. It has been a difficult year for all with the Covid-19 pandemic continuing to cause uncertainty and many of us have lost loved ones, family and friends and no doubt most of us have far higher hopes for 2022 than we had for 2021. Whilst one vaccine had received regulatory approval by the end of 2020 there was still a general uncertainty about what 2021 would have in store for us. As it turned out, 2021 was a better year than 2020 and hopefully 2022 will be a further improvement, despite the emergence of the Omicron variant.
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As I take up this position as President, I would like to take this opportunity to thank Neil Johnson for his work over the preceding two year period. I think that Neil will go down as the first HLS president to serve a two year term and Neil has certainly had many obstacles to deal with over his term, but he has coped admirably and I hope that I can do likewise. I would also like to take this opportunity to congratulate Diana Kirsch on becoming Vice President and to cement what is already a great working relationship between the society and the University of Hertfordshire. It will be pleasure to work with Diana to achieve further success for the HLS. At the tail end of my vice-presidency I attended a drinks reception at the newly named Grace Ononiwu Law Court Building at the University of Hertfordshire in honour of Dr Grace Ononiwu CBE, alumna and the first AfroCaribbean person to serve as Chief Crown Prosecutor in the UK and currently Director of Legal Services for the Crown Prosecution Service (CPS). I also enjoyed attending the joint Hertfordshire Junior Lawyers Division and Hertfordshire Law Society Festive Food and Fizz night at the Blacksmiths Arms in Saint Albans, brilliantly organised by Aisling Hayward and so special thanks to her. In terms of my plans for the next 12 months then I do hope to increase the membership and promote the work of the Society to other local organisations and to ensure the Society takes a role in community and charitable activities locally. At the time of writing I am currently due to attend the Southern Area Association of Law Societies (SAALS) meeting in Hampshire on 27th January and the Institute of Chartered Accountants in England and Wales (ICAEW) annual dinner in March and I will continue to attend as many events that I can and do my best to promote the good work that the Society does. As we come out of the pandemic we will look to increase our offering of training and social events and hopefully by the time I write this column again we will be back to ‘normal’. I look forward to hearing from you our members on what you would like your council to deliver, and how we can support you and I would welcome your ideas and suggestions Steven Hamilton President of the Hertfordshire Law Society Steven.hamilton@taylorwalton.co.uk
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Editorial News
Introducing Christiane Colbon T hank you firstly to the Society for accepting my application for membership and to my colleague, Dilpesh Shah, for proposing me as a council member. I hope I will be useful!
The thing I can, I feel, offer the Society is a broad range of experience: I qualified in 1997 with Pictons in Luton then left the private practice world in 2000 to become a lecturer at the College of Law for five years, lecturing on the LPC and GDL courses in litigation and criminal law respectively. This was succeeded by some years of really hard work with small children and working intermittently for my husband’s new criminal practice in Luton. When the youngest child started school I went to see BBW Solicitors in Letchworth, and they were kind enough to let me start as a private client solicitor, which is what I’ve been doing ever since, and am now at the new Elite Law office in Hitchin. All being well I will qualify as a Notary Public this summer, and yet another new experience will begin…
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Hertfordshire Law Society Gazette
News
Mewsings of a Princess My hooman mother has now had 4 vaccinations and is happy. I still don’t like vaccinations. There is nothing stranger than hoomans. I’ve not been up to much as the weather has been wet and horrible. There is nothing nicer on a cold wet day than sneaking in and warming myself up on my parent’s nice clean bedclothes. If it’s really cold I will get into bed! I do like to sleep with them but I often have to sneak in when they are asleep so they don’t know.
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t least we have not had another lockdown for a while. However my hoomans still seem to carry out tests that involve sticking funny looking sticks into their mouth and up their noses before they go out – why? I have no idea but they seem very happy when it is negative.
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so I don’t get lonely and I can get back to training them. The golden haired child is walking now but luckily he hasn’t visited since Christmas. I much prefer it when they go and see him. @princessgigi2019
The weather has been so bad that I haven’t been able to bring them any presents recently – no mice or birds. Still it will be spring soon and I’ll be able to catch some. One advantage of this strange time is that my hoomans are not going away much
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Editorial Events
Hertfordshire Law School Hosts Alumna Dr Grace Ononiwu CBE
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n January Hertfordshire Law School was delighted to welcome back Dr Grace Ononiwu CBE – a graduate of the University of Hertfordshire who has had an amazing career in the Crown Prosecution Service. Grace was the first Afro-Caribbean person to serve as Chief Crown Prosecutor in the UK and last year was appointed Director of Legal Services, reporting directly to the Director of Public Prosecutions.
The University retains close ties with Grace and recently renamed the Grace Ononiwu Law Court Building, located on the University’s de Havilland campus, in her honour, in recognition of her outstanding contribution to the legal and justice system. Grace is also patron of the award winning Hertfordshire Law Clinic.
and it knocked her confidence. She rebelled and failed all her ‘O’ Levels as she thought there was no point in trying. When she failed she promised herself that she would never fail again and this was a turning point in her life. After graduating from University of Hertfordshire and completing the Solicitor’s Finals at the Guildford College of Law, Grace joined a private firm of solicitors in High Wycombe practising criminal law. It was there she was advised by her
supervisor/ mentor that to be a more rounded criminal lawyer she was to learn to prosecute. She was to spend two years training with the CPS, and then return to the firm, but she never went back. She says she found her passion at the CPS, protecting the vulnerable and playing a key. Role in keeping the public safe. Grace’s down-to-earth demeanour and can-do attitude is infectious amongst the students and, even after the formal
In an inspiring speech to over 200 staff and students, Grace told students that she had first dreamed of being a lawyer at the age of eight but was discouraged by her Careers Officer at school, who told her there was no way she could become a lawyer, and urged her to consider becoming a legal secretary. Of the experience, Grace said that she had always been told to listen to teachers
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Hertfordshire Law Society Gazette
Events
event, they were reluctant to let her leave – gathering round her to ask more questions. Afterwards we held a careers fair for the Law School students, encouraging them to be open-minded about their futures. The employers attending included law firms, as well as the CPS, police, prison service, charities including Centrepoint and HACRO, Dispute Resolution Ombudsman and Herts County Council. It was very satisfying to receive feedback from the representatives of these organisations that UH students
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were inquisitive, appreciative and wellprepared. The students themselves had a great day, finally being able to mix with their peers and staff at a face-to-face event and having the opportunity to take a moment to properly consider their journey so far, and what their future path should be. These are just a few comments we received from students who attended: “Best event I’ve attended in my time at UH” “Thank you to all the team members for
setting up online teams talks which take place at campus as it gives us opportunity to be part of it despite of our other commitments. Today’s Grace talk was very inspiring!” “Thank you so so very much for such an amazing opportunity and an incredible day and evening.” We are now keen to hold more in-person events! If any of your firms are interested in attending future career events at the University, please contact our Director of Employability Julie Manson (j.a.manson@herts.ac.uk)
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Pandemic
How should employers respond to the end of Coronavirus restrictions in England?
Nicola Smyrl
E
arlier this week, the Prime Minister announced that all remaining Coronavirus restrictions would end in England. The Government’s view is that restrictions on freedoms should not be in place for longer than absolutely necessary and that vaccines and other pharmaceutical interventions will form the first line of defence against Coronavirus. The changes announced include: • The legal requirement to self-isolate following a positive test or as an unvaccinated close contact of a positive case together with routine contact tracing ceases from 24 February 2022. Self-isolation on testing positive remains advised (but not legally required) until 1 April and further guidance will be issued by the Government in April on the steps that people with COVID-19 should take to be careful and considerate of others, similar to advice on other infectious diseases. • From 1 April, the government will no longer offer free community Covid-19 testing, including both symptomatic PCR tests and asymptomatic rapid lateral flow tests. • The Coronavirus adjustments to statutory sick pay (SSP), making it payable from day 1 of a period of incapacity caused by Coronavirus will end on 24 March across the UK. The normal rules, which mean that SSP is not payable during the first 3 days of absence, will apply.
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The change in the legal rules does not mean that employers can simply return to working arrangements and practices which applied before the pandemic and there are some tricky issues that all employers will need to grapple within the coming weeks. Employers will need to find a balance which takes into account the need to start living with Coronavirus in a less restrictive way whilst maintaining a working environment that meets the employer’s obligation to provide a safe place of work. Both the Government and the Health and Safety Executive (HSE) have advised that consideration still needs to be given to reducing the risks associated with transmission of Coronavirus and that caution should still be exercised. In particular, employers ought to factor in Coronavirus risks into workplace risk assessments and maintain measures to ensure adequate ventilation, cleaning and hand hygiene as a minimum. The Government will be updating the “Working safely during Coronavirus” guidance in due course to take account of the recent changes and employers should carefully review and implement this guidance where possible. The guidance can be viewed here https://www.gov.uk/guidance/ working-safely-during-covid-19. Whether employers should go further than these basic measures will depend on the nature of their business and workforce. Some businesses may wish to continue asking staff to conduct regular Coronavirus testing and isolate when testing positive or coming into close contact with a positive case, but this approach will need careful consideration. Once free testing ends, employers will need to meet the costs of any ongoing requirement for regular workplace testing. Thought would also need to be given to whether such a requirement is a reasonable expectation which can be justified by reference to
specific risks and the needs of the business. Taking into account the Government’s change in approach to Coronavirus and the message that we should begin living with Coronavirus in the same way that we do with flu, it may be difficult to justify an ongoing requirement for testing save in exceptional circumstances. Having a policy that employees should not attend the workplace where they test positive for Coronavirus, have symptoms of Coronavirus or have come into close contact with a positive case may not be controversial in workplaces where the employee is able to work from home. It will more difficult to ask of employees where they are unable to work from home and this affects their pay. It is not unusual for employees to attend work with minor illnesses such as colds and many employees will not be prepared to miss work in circumstances where SSP is not payable for the first 3 days of absence. If employers are considering excluding employees from the workplace due to having Coronavirus symptoms in circumstances where they cannot work from home, consideration will need to be given as to whether or not employees should be supported financially during this period. It is likely that excluding employees from the workplace when they consider that they are well enough to work could lead to grievances and claims given that there is no legal requirement to isolate. If businesses are considering implementing their own isolation policies, it will be important to have clear business reasons to justify this. In the absence of particularly vulnerable staff or customers, this may be difficult to achieve. Clinically Vulnerable Employees Employers will need to think about how to approach working arrangements for employees who are clinically vulnerable. It may be that employers will need to consider making adjustments to the working arrangements of these employees taking
Hertfordshire Law Society Gazette
Pandemic
into account that the chances of coming into contact Coronavirus are likely to increase. Employers may need to think about alternative arrangements for such employees such as increased home working. It is possible that some vulnerable employees will simply refuse to return to work despite the removal of restrictions. Where continued homeworking is not possible, in these cases, it is important that employers are able to demonstrate the steps that have been taken to ensure that the workplace is as safe as possible. This would be an important part of being able to show that the requirement to return to work was reasonable and relevant to defending any claims that may arise out of such circumstances.
Taylor Walton’s employment law team will keep you updated with developments in this area. If you require any assistance with the issues raised in this article, please contact the employment team at https://taylorwalton.com/employment-law/. nicola.smyrl@taylorwalton.co.uk
Next Steps It would be sensible for employers to use the next few weeks, where testing and isolation is still advised, to consider how they will approach living with Coronavirus in the workplace. It may be necessary to consider updating policies and procedures which have been in place in the last two years to take account of the change in approach. It will also be important for employers to carefully communicate with staff about the approach they intend to take. Ensuring that employees feel confident about the safety of the workplace is likely to be important in moving to a less restricted way of working.
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Hertfordshire Law Society Gazette
Charity
Charitable Wills on the Rise Rob Cope
Growth in the number of people choosing to benefit good causes from their Will
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ublic appetite for legacy giving has hit a new height with almost one in five UK charity donors choosing to leave a gift in their Will (19%), up from 14% in 2013. A further 10% intend to make a gift from their Will or are preparing to do so.
life planning and the legal sector has been a major driver of this change. The more solicitors that make clients aware of the option of giving in this way and can talk through the practicalities of doing so, the closer we get to a world where legacy giving becomes the norm.”
Legal advisers are seen to play a critical role in making clients aware of the option of including a gift in their Will, with six in ten of the giving public saying they have used or would use a solicitor or Will-writer to set out their final wishes.
IMPACT OF GIFTS IN WILLS Legacy giving is the largest source of voluntary income to UK charities, raising £3.4 billion annually.1 That income has sustained charitable services throughout the pandemic; from hospices to shelters for those suffering from domestic abuse, mental health helplines to rescue services.
These are the key findings from Remember A Charity’s consumer benchmarking study– a survey of over 2,000 charity donors aged 40+, tracking legacy giving attitudes and behaviour over the past eight years. Three in ten donors with a Will have included a charity. That proportion rises significantly among the affluent, those who are aware of the tax incentives and those who seek professional advice, as well as those who identify as gay, lesbian or bisexual. While legacy giving is becoming increasingly popular among the giving public, just 9% reject the concept of leaving a gift in their Will. Rob Cope, director of Remember A Charity – a consortium of 200 UK charities, adds: “Leaving a gift in your Will is such a positive and empowering decision to make during end-of-
“This growth in appetite for legacy giving will be vital for the future of good causes across the nation,” says Cope. “When you consider that, not so long ago, legacy giving was really only seen as something for the wealthy, it’s wonderful to see so many people now understanding that their gift, no matter what size, really can make a difference.” PREVALENCE OF WILLS The study, carried out by the independent research firm OKO, reports that 62% of donors have already prepared a Will, with the likelihood of doing so logically increasing with age. 82% of those aged over 70 have written a Will, compared with just 46% of those in their early 40s.
It also highlights how often people change or update their Will, with just over half of respondents with a Will saying they have already updated it at least once and almost 6 in 10 indicating they are likely to change it in future. BARRIERS TO LEGACY GIVING The concept of legacy giving appeals to the UK public, who are inspired by the message that even a small gift could make a big difference and that this income is vital to charities’ work. But the study also identified barriers. People naturally want to look after their family and friends first and foremost, some think they don’t have enough assets to leave a gift, while others say they simply didn’t think of it at the time. Remember A Charity runs a free Campaign Supporter scheme for solicitors and Willwriters, providing promotional resources and useful guidance for referencing legacy giving with clients. Find out more at www.rememberacharity.org. uk/solicitor 1
Smee & Ford, 2021
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Advertorial
How Can Law Firms Reduce Their Carbon Footprint?
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limate Change is the long-term shift in average global weather patterns, and the sixth Assessment Report by the Intergovernmental Panel of Climate Change (IPCC) has found it is certainly a result of human activity. In this article, we summarise the key findings from the IPCC’s Assessment Report and consider how law firms can play their part in reducing their carbon footprint. 1. We are set to pass 1.5C warming by 2040 The average global temperature has risen by more than 1°C since the 1850s, with the hottest years recorded in 2015, 2016, 2017, 2018, 2019 and 2020. The 1.5°C is the target limit set out in the Paris Agreement in 2015, which aims to strengthen the global response to the threat of climate change by limiting global temperature rise to 2°C above pre-industrial levels, while pursuing efforts to curb it further to an increase of 1.5°C. If we don’t act now on achieving net zero by 2050, it looks as though this target is not achievable. 2. Human activity is driving extreme weather There have been significant improvements in the data used to model climate change since the 5th Assessment Report (AR5) was published. As a result, the new climate model simulations, new analyses and methods have led to a greater understanding of human influence on the climate. 3. Climate change is affecting all regions The IPCC report states that “Climate change is already affecting every inhabited region across the globe with human influence contributing to many observed changes in weather and climate extremes.” Models have become more advanced and it is now possible to assess how regions will differ with increase in temperature. It is clear that the Arctic temperatures are increasing faster (potentially 2 times faster than the level of global warming) than other regions, while for some mid-latitude and semiarid regions, and the South American Monsoon region, they are expected to see the highest increase in temperatures of the hottest days, at about 1.5 to 2 times the rate of global warming.
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4. Irreversible tipping points are getting closer These increases in temperature have, in some instances, made traversable changes such as sea level, which will continue to rise and will not be recoverable for hundreds, even thousands of years’ time.
4. Reduce waste Reduce the amount of waste produced; law firms typically print on paper and often these records are required to be shredded and disposed of by specialist contractors. This could potentially be reduced by storing information digitally.
The surge of forest fires have caused concerns that tipping points are getting closer. The changing climate in parts of the world are causing severe droughts and the loss of forests will result in higher temperatures and a lower humidity, which, in turn, worsens wildfire conditions.
5.Increase employees use of greener transport during the commute The lockdown has seen that we can work from home and as such is the usual commute still required? And if so, can we do this by using public transport?
Furthermore, as the intensity and scale of forest fires increases, CO₂ which would normally be reabsorbed during forest regrowth are now not able to so. It’s an unfortunate cycle which leads to increased warming. What is required to prevent further warming? World leaders met for the UN Climate Change Conference (COP26), which was a pivotal moment for nations to reflect on what we have done so far in reducing our greenhouse gases and what is required to meet the pledge to limit global average temperatures and achieve net-zero by 2050. What can law firms do to help? 1. Measure and analyse Greenhouse Gas emissions In order to know how to improve in reducing emissions, you will first need to measure what emissions you are emitting. This can be done by using private companies that can help and also provide solutions to reduce your impact as a company. 2. Reduce your energy consumption Simple things such as turning off the lights in the office in the evening or taking devices off plugs when not in use will make a difference. Also, reduce the heating or use of air conditioning, encouraging colleagues to dress accordingly. If its hot outside, try to lower the indoor air-conditioned temperature by 2°C. 3. Use renewable energy There are many renewable energy companies out there, or green tariffs you can opt for – do your utilities homework.
6. Support clients with ESG assessment and management ESG is relevant to clients who want to be a step ahead in devising their own ESG programme to demonstrate responsible business conduct. Law firms are well placed to assist with ESG due diligence processes and offer legal counsel on ESG advancement. We recommend working with data providers that adhere to SASB standards for effective and accurate ESG assessment and risk management. For more information visit https://www. landmark.co.uk/legal-conveyancing/esgmanagement/ References https://www.ipcc.ch/report/sixth-assessmentreport-working-group-i/ h t t p s : / / y o u m a t t e r. w o r l d / e n / a c t i o n s companies-climate-change-environmentsustainability/ https://insideclimatenews.org/ news/08012020/australia-wildfires-foresttipping-points-climate-change-impactwildlife-survival/ https://www.theguardian.com/australianews/2020/apr/21/summers-bushfiresreleased-more-carbon-dioxide-than-australiadoes-in-a-year h t t p s : / / w w w. t h e g u a r d i a n . c o m / environment/2020/jul/15/climate-change-madesiberian-heatwave-600-times-more-likely-study https://www.theguardian.com/world/2021/ aug/20/rain-falls-peak-greenland-ice-capfirst-time-on-record-climate-crisis h t t p s : / / w w w. b b c . c o . u k / n e w s / s c i e n c e environment-58130705 https://www.metoffice.gov.uk/weather/ climate-change/effects-of-climate-change https://www.gov.uk/government/speeches/theneed-for-action-on-climate-change-is-urgent https://www.worldweatherattribution. org/siberian-heatwave-of-2020-almostimpossible-without-climate-change/
Hertfordshire Law Society Gazette
Education
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rom September 2018 the University of Hertfordshire’s Law School will be
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Advertorial
Geodesys drainage and water report for new build homes
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s we move into the mainstream digital age, the role of the expert
And, it mean The Geodesys NewBuildDW - the first of its kind - provides all the same quality data on water and sewerage connections as the Law Society’s official CON29DW report. However, NewBuildDW focuses specifically on the information relevant to new build residential properties and offers conveyancers a lower-priced alternative to the full report. It also includes several pages of extra tips and advice for buyers.
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Crystal-clear front-page customer dashboard highlighting information on key questions • Easy-to-use interactive navigation making retrieving information easy for users • Top tips and advice relevant to buyers of new build properties • £5m professional indemnity insurance
Jonny Davey, Product Manager for Geodesys, comments:
“We are committed to providing all the information home buyers and their legal advisors may need on a property to avoid any unnecessary future risks and additional costs. “We decided to launch this new product after identifying a gap in the market for a comprehensive report which has been specifically tailored to provide information for new build residential properties. All data used in the report is sourced from Anglian Water, which retains liability for its accuracy.” Making conveyancers’ jobs easier, the new report will provide: • 17 questions including two high quality water and sewerage maps
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Jonny continues: “Produced by industry experts, our streamlined report clearly outlines all the most pertinent information. Some data contained in a full CON29DW is simply not available for new builds, so NewBuildDW allows conveyancers to access the key details at a more competitive price.” The NewBuildDW Report is available for £36 (including VAT) in the Anglian Water sewerage area only and for residential properties classed as new build. For more information, please visit: http://www.geodesys.com
Hertfordshire Law Society Gazette
Expert Witness
EWI's Online Conference brings together expert witnesses, solicitors, barristers and eminent judges to discuss the key issues facing the expert community. This conference is aimed at: New Experts looking to develop their understanding of key issues Experienced Experts looking to develop their practice Those who work with or instruct Experts PROGRAMME
Breakout session 2: Practice update:Top Tips for giving evidence in Court
Signing into Zoom
Our panel of experienced experts and Barristers share their top tips for giving evidence in Court.
Conference Chair Welcome Keynote Speech The Right Hon Lord Hamblen of Kersey, Justice of the Supreme Court, will share his views on Expert Evidence in the courts Lessons from the Pandemic - A panel discussion reflecting on practice over the last year and the likely long-term changes As the judiciary adapt to a return to the physical courtroom, our panel will explore what practices are expected to remain in place and which are likely to come to an end. Morning Break Lessons from the Courts – A panel discussion Panel Chair, Professor Penny Cooper, will discuss key issues affecting Expert Evidence with our panel of judges. Lunch Breakout session 1: Practice update: Clinical Negligence An update on recent cases and their implications for Expert Witnesses.
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Break Unconcious Bias We explore unconcious bias and how it can affect your work as an Expert Witness. Closing Address Sir Martin Spencer, Justice of the High Court, Queen's Bench Division and EWI Chair of the Board of Governors shares his views on Expert Evidence from the High Courts and wraps the day up. Conference chair closing remarks
Friday 20th May 2022 Early Bird Booking Prices Full day: Member: £150 / Non-Member: £175 Half day: Member: £80 / Non-Member: £100 CPD: 7 Hours
Hertfordshire Law Society Gazette
Education
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rom September 2018 the University of Hertfordshire’s Law School will be
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Expert Witness
EWI Launch Core Competencies for Expert Witnesses EWI has launched a core competency framework for Expert Witnesses which sets out the attributes, knowledge, and skills that experts must develop if they wish to act as an Expert Witness.
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he framework was developed by senior staff, senior members and the Board.
It is a useful tool in a number of ways: • It outlines the knowledge and skills that are required of Expert Witnesses. • It can be used as a self-assessment tool for you to think about your personal and professional development. • It can be used for skills analysis, training, and career development plans and enables you to identify Continuing Professional Development opportunities and training needs • It underpins EWI’s levels of membership and the assessment and vetting process for each. • If you are not yet a member, it can be used to assess the membership level you should consider. • It can be used to assess relevant training courses for Expert Witnesses.
knowledge, skills and competencies in order to fulfil their duty to the court. This framework outlines the full set of competencies which must be developed in order to become an Expert Witness.” You can download the competency framework from the EWI website at www.ewi.org.uk/corecompetencies
The Core Competency Framework The Core Competencies document has been designed as a practical self-assessment tool. This means you can carry out self-assessment of your knowledge and skills against all areas. To assist you in doing this, the EWI has developed a set of selfassessment ratings which are included in the tool. These will help you consider your level of knowledge and skills in each area and identify areas that you might want to develop as part of your own Continuing Professional Development. For those considering membership of the EWI, the expected levels for Knowledge and Experience for each competency have been mapped to the different levels of membership which enable you to consider the appropriate level of membership for which to apply.
Simon Berney-Edwards
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Chief Executive Officer, Simon Berney-Edwards, said “Over the last year we have seen the results of Experts acting as Expert Witnesses without fully understanding their duties to the court or having the sufficient training and competencies to act as an Expert Witness. As an Expert Witness, Experts must develop additional
The Expert Witness Institute. Registered office: 159-161 Temple Chambers, 3-7 Temple Avenue, London, EC4Y 0DA Email: info@ewi.org.uk The Expert Witness Institute is a company registered with number 3317333
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Law Society News
Law Society statement on Ukraine
Law Society of England and Wales president I. Stephanie Boyce said: “The Law Society stands in solidarity with the Ukrainian people, the Ukrainian National Bar Association and the Ukrainian Bar Association. We also stand with the Russian people who oppose their government’s illegal invasion of Ukraine, and lawyers who are defending the rule of law in the region. “We condemn the actions of the Russian Federation, which are in contravention of international law. There is no doubt that these actions are a direct threat to the rule of law. “We continue to support our members in the region at this difficult time.”
At risk for upholding the law: Day of the Endangered Lawyer Lawyers are being arbitrarily arrested, prosecuted and convicted, as well as forcibly disappeared and even killed in countries across the world because of their work upholding the rule of law, the Law Society of England and Wales said to mark the day of the endangered lawyer on 24 January. Law Society president I. Stephanie Boyce said: “We honour the courage and commitment
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of lawyers around the world who put their lives at risk so that people’s rights are protected and those who violate them are held accountable. “Today we think particularly of our colleagues in Afghanistan who helped build the justice system and bring stability to the country under the former government. Since the Taliban took power some have tragically been killed because of the work they did, a few managed to escape,
but far too many are in hiding, at risk from not only the Taliban but also from terrorists and criminals they convicted since released from prison. “The Law Society stands in solidarity with legal professionals around the world. We will continue to work to support them and to contribute to building strong, fair justice systems everywhere.”
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Event Review
A very different Bar Conference began with a reflection on his role as a tank commander in Germany, which explained why he settled on a career in law after the fall of the Berlin Wall. “Respect for the Rule of Law has stalled”
An appreciation of the Bar Conference 2021 held between 17th to 20th November 2021 by Phillip Taylor MBE, reviews editor of “The Barrister”, and Elizabeth Robson Taylor of Richmond Green Chambers
W
e certainly do live in different times -- and this Bar Conference of 2021 was, historically, the first annual Bar Conference conducted online, as well as in person. This, of course, will come as no surprise to the Bar. It was as good an indication as ever, that the Bar (after hundreds of years) remains as resilient as ever, even in the face of the Covid menace which persists in every aspect of life. Saturday, 20th November 2021 found one hundred or so people at the Connaught Rooms in Central London for this special Conference with a difference. As a hybrid affair, it proceeded partly online and partly in person. In spirit it reflected in a sense, what many of us have been doing as barristers and mediators for the past eighteen months -- being resilient and being resourceful. The Weekday Sessions Online These go back a couple of days to Wednesday 17th November when Derek Sweeting QC opened the online part of the Conference. Lord Burnett of Maldon, the Lord Chief Justice of England and Wales began with his vision of justice
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in 2022, offering us an overview of his priorities for next year. He was followed by a return performance from Baroness Hale who had addressed us prepandemic and came back to us for more, with an exploration of the state of the Rule of Law. Lady Hale was joined by another stalwart of our events, Baroness Helena Kennedy of the Shaws QC, Professor Philippe Sands QC of Matrix Chambers and Sophie in‘t Veld MEP from the European Parliament. We were also very lucky throughout to have excellent sponsorship from LexisNexis, Vector Professions Finance, Mitigo Cybersecurity, and Currencies Direct, plus our exhibitors: Advanced; Charles Cameron & Associates; ICLR; Advocate/FRU -- and Complete. The exhibitor stands were well patronised on the Saturday, and it was great to see so many familiar faces, as well as new ones after the enforced absence of almost two years. Overall, the main theme of this memorable hybrid gathering was “Recovery, Growth and Transformation”. On the Saturday, the Chair of the Bar, Derek Sweeting QC elaborated on “what the future of justice looks like in a world changed by the pandemic”. A rapt audience was then encouraged to consider “the transformations that are needed or expected to take place throughout the justice system and within the profession”. Interestingly, Derek’s opening speech on the Saturday
Derek’s noteworthy narrative was followed by his rather sombre statement that “respect for the Rule of Law has stalled” whilst we, as lawyers who toil in the front line, continue our struggle to protect the law as a precious asset while being fully aware of the challenge of upholding it. This point popped up persistently throughout these hybrid sessions which, by the way, worked almost seamlessly -- better in fact, than some of us had thought possible. For those attending in person and those watching online, the main topics included the role of technology; access to the Bar; working practices; and barristers’ individual and collective business development and management. The outcome of our deliberations was the opportunity to chat about the way ahead and the need to identify how the Bar and Young Bar, as well as the wider legal sector, would be able to “flourish at a time of change of opportunity”. “We are all in the same storm… but not in the same boat” We were also fortunate to hear from Joanne Kane, chair of the Young Barristers’ Committee. Few of us listening to her lively talk will probably never forget our early years of practice and the problems many of us faced at the beginning of our professional lives. “We are all in the same storm, but not in the same boat,” she said, continuing her theme that many junior practitioners continue to face preexisting challenges, including inadequate remuneration (of which, more later), and inequality of opportunity, as well as obstacles to individual wellbeing, as “we are all in this together” as someone once said within recent memory. Designed specifically for the Young Bar, there had been practical sessions during
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the week to provide guidance on how to be an effective junior and a persuasive advocate, in what is such a different world for many of us. It was Joanne who added that “there is work to be done by all in the profession to improve diversity, address working conditions, and to safeguard the future of the profession”. On behalf of the young Bar, Joanne provided us with a valuable contribution on issues facing all practitioners, young and just a bit older. Promptly afterwards, who should turn up but the Lord Chancellor, Dominic Raab MP in the form of a video clip. His dissertation, intending to be reassuring, was frankly, a statement of the obvious for most of us. What would have been more effective (and more courageous) might have been a “Q &A” session when the issues he didn’t want to discuss could have been raised. We intend to raise them anyway, as we now await the delayed report on the future of criminal legal aid levels from the Bellamy Report which should be with us by the time you read this article. As usual, legal aid was one of the elephants in the room throughout Saturday and will continue to be so, together with the court estate and all that is that is wrong with HMCTS. The two further sessions that followed included “the picture of justice for the next five years”- and yes, you guessed it: IT and all things online, starring the Master of the Rolls, Sir Geoffrey Vos, who put up a spirited defence of his anticipatory vision of an online future. Joining Geoffrey were Penelope Gibbs from Transform Justice, HHJ Sally Cahill QC, President of the Council of Her Majesty’s Circuit Judges, and genial Clive Coleman, the ex-BBC man in the “Joshua Rosenberg slot”. This important session focused on modernising the system to improve the changing needs of the court user. The panelists were impressive, always returning to the “political” problem of legal aid which always neuters what the judiciary would like to say. This, however, didn’t stop the other contributors -- and it would have been better to have had a longer time for
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questions in these sessions. However, we overran a bit, straying into what we know as “barristers time” as we do like to talk, do we not. Diversity This session pre-lunch was chaired by David Lammy MP, a rather subdued Shadow Justice Secretary. Uncharacteristically quiet he was, although the more voluble panelists were first class: Barbara Mills QC, HHJ Emma Nott from Reading Crown Court (with splendid slides) Chinwe OdimbaChapman from Clifford Chance, and Grace Ononiwu from the CPS. This was an important session for everyone because of the issues thrown up by the massive problems relating to fair and equitable distribution of work. Diversity, together with legal aid, will doubtless continue to be among the most difficult and pressing subjects for the Bar, along with all the other issues which determine who is -- and who isn’t -- destined to succeed at the Bar. It was not too depressing a session, but the issues it raised will remain collectively a “work in progress” matter for all practitioners. Following lunch and further visits to the exhibitors, the afternoon sessions were dominated by two fascinating panel discussions on the subjects of Twitter and legal journalism. The Conference would not be complete of course, without a visit from famous/notorious mystery man, ‘The Secret Barrister’, although Crime Girl was not present. Joanne Kane reprised her earlier role as the SB’s spokesperson and did an excellent job, ably chaired by PR man Keith Hardie, and Tweeter extraordinaire, Sean Jones QC of 11 KBW. Where Sean gets the time to tweet was beyond many of us, but his advice was sanguine.
The panel, including the elusive SB, shared their world-weary views on the global phenomenon of Twitter: the do’s and don’ts of using this social media outlet (LinkedIn clearly was not a runner for social media barristers, which was a bit surprising). The point of this session was whether social media has a role to play in increasing public awareness of the justice system “and building a professional brand”. Well -- yes, it does for many of us, but perhaps not quite yet for all of us. “Making Headlines” and the need for skeletons As we delegates were aware, the ladies and gentlemen of the press were much in evidence, presumably slaving away on their computers, following our every move as hybrids These distinguished legal reptiles (sorry!) included the everexcellent Jonathan Ames (“The Brief” from “The Times” as legal editor); Lizzie Dearden from “The Independent”; the courageous Tristan Kirk (Evening Standard) and Jess Glass from the High Court. And what a great session it was. But just remember the golden rule that there is no such thing as “off the record”. If you say something to a journalist, he/ she will use it. Also, journalists need to be told about important cases, so make sure you send them your “skeletons” if you want coverage! See You in 2022 This was indeed a very different Conference this year, one which, fortunately didn’t bore the striped pants off anyone, even Jonathan Ames. So, I will close with a resoundingly loud thank-you to everyone who attended, hybrid or not. It was so nice to be back together again after an enforced two-year absence.
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Book Reviews
Book Reviews by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator THE MEDIATOR’S TALE The CEDR Story of Better Conflicts By Eileen Carroll QC (Hon) and Dr Karl Mackie CBE ISBN 978 1 52651 583 4 BLOOMSBURY PROFESSIONAL LAW www.bloomsburyprofessionallaw.com/online BRILLIANT PERSONAL AND PROFESSIONAL INSIGHTS INTO MODERN MEDIATION “The Mediator’s Tale” has been published by Bloomsbury Professional “to celebrate the 30th anniversary of CEDR’s emergence as the world’s leading independent disputes consultancy”. The book arrives at a particularly pivotal moment for the future of mediation as an alternative dispute resolution option in view of the massive build-up of unheard cases in the courts. But mediation is not to the taste of all litigants, or “participants” as we call them! However, you may change your mind when you read this tale. The authors, Eileen Carroll QC and Dr Karl Mackie give us a fresh light on the personal motivations and strategy behind what they describe as “a unique example of disruptive innovation in the legal system, while sharing their professional insight into how we can achieve better conflict management in our personal and professional lives”. In their own words, Carroll and Mackie begin their tale by charting “the personal and organisational drivers behind the success of CEDR in the UK and internationally, drawing out important insights for other innovators and campaigners for change to a traditional system”. Don’t you just love the description of how they describe their task- “very mediation”, but don’t be put off! The main part of the book then draws on experience spanning thirty years to illustrate key insights in “a matter of fact” way as to how the mediation process, and other independent conflict intervention techniques which deliver results. The book explains how such
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techniques can be made to work “most effectively”; and how one can adapt these skills and systems for old and new dispute contexts, with the “challenges for the future of better conflict management” (as they put it). This splendid work also offers tips to assist the reader analyse their own personal experiences in conflict and dispute resolution. The purpose is to offer suggestions on what they can learn from “the insights of leading practitioners, while becoming familiar with a fascinating and unique lifetime’s professional practice, and the diverse experiences of a leading independent institution in the field”. Without doubt, this important and readable book is one which any mediator or potential mediator should include in his or her library as ADR continues its upward journey as a realistic way of resolving disagreements without recourse to the courts. The date of publication of this new paperback edition is cited as 7th December 2021.
McPHERSON & KEAY THE LAW OF COMPANY LIQUIDATION Fifth edition By Andrew R Keay ISBN 978 0 41408 920 4 Sweet & Maxwell/Thomson Reuters sweetandmaxwell.co.uk MUCH NEEDED IN ‘A NEW WORLD’ -- THE LATEST EDITION OF ‘THE LAW OF COMPANY LIQUIDATION’ Be you lawyer or accountant -- if you are in any way involved in matters relating to insolvency, you need this longestablished and highly regarded work of reference -- out now in a new fifth edition from publishers Sweet & Maxwell. Company liquidation is referred to in the Foreword written by the Chief Insolvency and Companies Court Judge Briggs as ‘an important part of the insolvency
landscape.’ ‘It is axiomatic,’ he adds, ‘that the law of insolvency continues to evolve and world events such as the UK leaving the European Union and the pandemic have contributed to or hastened legislative change that requires the practitioner to understand new practices and procedures in what looks like a new world.’ While looking very much to the future, the book does illuminate, with admirable clarity and thoroughness, all aspects of company liquidation, including the “winding up” of solvent, as well as insolvent companies. (Note here that editor Andrew Keay points out that the terms ‘liquidation’ and ‘winding up’ are used interchangeably throughout the text.) ‘A purpose of the winding up of both solvent and insolvent companies,’ he states, ‘is to prepare companies for the end of their existence by eventual dissolution” -- and to do so fairly and equitably, particularly in cases in which there is a public interest factor. In the words of Judge Briggs, this specialist text ‘explains the nature of winding up in all its forms and takes the reader on a journey through the intricacies (and there are many) of its processes.’ Certainly, the book excels as a work of reference, rendered easily navigable via a very detailed sixteen-page table of contents, (covering eighteen chapters) and a thirty-six-page index. Also note the 160 pages of tables of cases, statutes, and statutory instruments. As “a part of the insolvency landscape” company liquidation is no one’s ideal of a desirable outcome of business activity. But for lawyers advising clients who have taken risks (particularly in the current post-pandemic ‘new world’ of business), this new fifth edition of McPherson & Keay provides a comprehensive and indisputably authoritative guide to this difficult area of law. The date of publication of the fifth edition of this hardback was 27th September 2021. The law is stated as 1st May 2021.
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Advertorial
Family Tree Verification – don’t rely on what the family tells you I
n the UK, the probate genealogy industry is not held in the same respect as it is by our European neighbours in France and Germany, where the verification of estates by professional genealogists when someone has died intestate is considered vital. In the UK, the probate genealogy industry is not held in the same respect as it is by our European neighbours in France and Germany, where the verification of estates by professional genealogists when someone has died intestate is considered vital.
Family testimony – not usually fail safe 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 as to who is related to the deceased and by what degree of kinship. This can lead to incorrect estate distribution and huge risk for the firm distributing the Estate. I once carried out research on a £400k intestacy, 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 to apparently exhibit antisocial behaviour. We identified and located him, and half of the estate rightly passed to him.
While the UK industry is unregulated, this need not deter solicitors from working with those who specialize in combing census records and online archives to piece together irrefutable evidence. Whilst reputation makes an excellent starting point, we always stress that anyone who requires the services of a probate genealogy company should first ensure that they are dealing with a professional company. At Finders International, we follow voluntary codes of conduct and regulatory regimes that can provide reassurance together with multiple ISO certifications and industry awards. It is vital to check whether the company is a member of a voluntary self-regulatory body such as the IAPPR www.iappr.org, a unique international body representing elite professional firms across the globe. Furthermore, the firm’s list of Credentials and Accreditations should give reassurance.
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Overlooked siblings and children It is best practice for a solicitor to interview their client before engaging a probate research firm, to ensure all relatives are accounted for. Families lose touch, large families forget how many relatives they have, children are born out of wedlock and, since 1927, adoptive families can legally inherit.
If the probate research firm works to a contingency fee and fails to find any further entitled heirs, it usually receives nothing at all for its work, but 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. Insurance – don’t skip this vital protection Missing or unknown beneficiary insurance is crucial. Sometimes, administrators seem certain they have identified all next of kin and consider taking out insurance cover against any future 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, it’s more likely that a probate research firm will be unable to find ‘undocumented’ claimants. Insurers demand proper evidence, and they seek evidence from recognised professional firms of probate researchers.
Contingency fees most popular Freedom of choice is imperative to cover a variety of situations. There are four fee models available from most professional probate research firms. We find that often Contingency fees are the most popular option. They are seen as fairer in many circumstances--payable only on a successful distribution of an estate, and where the fee is agreed directly with a beneficiary or the executor and expressed as a percentage of the sum they receive. However, an agreed budget or a fixed fee at the expense of the estate may be more appropriate, depending on the circumstances of the case. Be wary of low initial quotes Budget or fixed fees paid by the general estate diminish the whole estate value, something which any already known next of kin often see as unfair.
Danny Curran If you would like to out more about Finders International’s family tree verification service, please visit the website www.findersinternational. co.uk or contact Finders via email: contact@ findersinternational.co.uk or telephone: +44 (0) 20 7490 4935/freephone: 0800 085 8796.
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