Herts Law Society Gazette issue 55 - Summer 2023

Also this issue:

•A Day in the life of a Criminal Duty Solicitor

•PII Update - Looking ahead to the October renewal season

• AI in the Workplace – considerations for employment lawyers and much more...

Council Members 2023

President Diana Kirsch University of Hertfordshire (Hatfield)

Vice President

Kirsty Richards of National Legal Service (Family Lawyer)

Hon Secretary and Treasurer

Judith Gower

Immediate Past President

Steve Hamilton

Taylor Walton LLP (Harpenden)

Private Client

Members

Marilyn Bell SA Law (St Albans) Family

Paul Davies

Hamilton Davies (Stevenage) Employment, Family and Litigation

Jessica Moseley

Debenhams Ottaway LLP Probate and Trusts

Tahir Nisar (Crane & Staples, Private Client)

(From January 2023 until 31 December 2024)

Dilpesh Shah

Pellys Solicitors Limited Property & Commercial

Michael Scutt (Crane & Staples, Employment and Dispute Resolution)

Claire Sharp

Debenhams Ottaway (St Albans) Private Client

Penny Carey (University of Hertfordshire)

Nicola Smyrl of Taylor Walton (Luton and an Employment Lawyer)

Laura Woolard of Taylor Walton (St Albans and a Family Lawyer)

Massimo Trebar of Lawtons (Criminal Lawyer)

National Council Member

Josephine Duchenne National Council Member for Hertfordshire and Bedfordshire (from 15th October 2021)

The Law Society

Relationship Manager – East Jack Dunkley

Parliamentary Liaison Officer Judith Gower

From the President...

My main focus over the last few months has been preparing for the annual dinner which took place on 6 July in the beautiful surroundings of the Old Palace at Hatfield House. You can read more about the dinner and the winners of our Legal Excellence awards below.

I was also delighted to attend the biannual SAALS meeting which took place in the lovely surroundings of the Royal Yarmouth Yacht Club on the Isle of Wight last month.

In May I attended the Law Society Town Hall for local Law Societies in Chancery Lane hosted by President of the Law Society of England and Wales Lubna Shuja . The meeting included an overview of the Law Society’s new corporate strategy for 2022 to 2025 led by Ian Jeffrey and an update on criminal legal aid and review of civil legal aid from Richard Miller Lubna then introduced some of her key campaigns including the campaign around 21st Century Justice.

We also heard about the initial plans for the Law Society’s bicentenary celebrations for 2025 and we were invited to contribute our own ideas. The meeting concluded with a tour of the Law Society’s historic Chancery Lane rooms including the beautiful library, and supper in the newly refurbished Six Clerks Restaurant. It was a lovely opportunity to meet presidents of local Law Societies from around the country.

We are looking forward to a free training event on 13 July at the University of Hertfordshire’s De Havilland Campus. The session, led by expert accountant Robert Blech of MHA Accountants, is on the hot topic of proposed changes to the Solicitors Accounts Rules.

Finally, you may have heard that the Law Society has cleared the first hurdle in its challenge to the government for failing to increase criminal defence solicitors’ legal aid rates as recommended by Lord Bellamy’s independent review on criminal legal aid.

On 22 June, the High Court granted the Law Society permission to bring a judicial review challenge against the government. In its application for permission, the Law Society argued that the government’s decision not to implement the key recommendation of the Bellamy review was irrational, lacked reasons and was in breach of the constitutional right of access to justice. The High Court granted permission on all three grounds.

In April I was delighted to attend the Nottinghamshire Law Society Annual dinner as the guest of President Janine McKinney, the Chief Crown Prosecutor for the East Midlands.

Diana Kirsch President, Hertfordshire Law Society

I’m getting old...

Yes I’m getting old! On 22nd July I was six yes 6 years old. I was born first just before midnight and my 3 brothers were born just after midnight so I don’t have to share my birthday with anyone else!

On other news my hooman parents seem to go out a lot and leave me on my own. I bring

them presents to remind them of my existence, usually baby rats as I don’t eat them. Mice I am quite happy to eat. Don’t go mad at me, I bet you eat some disgusting things.

The weather hasn’t been that hot but my hoomans still

go swimming whatever the weather. They have even been swimming in the sea which was apparently “very warm” –Norfolk warm!!!!

golden one unless they go to see her.

I will finish off with another photo of me looking adorable.

My adopted sister apparently goes on maternity leave on 2 August which probably means I will have to see more of the

You can follow me on Instagram and I might even follow you! @princessgig2019 #catsofinstagram

A Day in the life of a Criminal Duty Solicitor

July 2023, so began another day. I was diarized to attend Hatfield Remand Court, as Duty Solicitor, to deal with clients produced in custody from Hatfield Police Station, under the “Central and West Herts Scheme”, who did not have representation or their own solicitors. This could be for a number of reasons; they did not want representation when arrested by the Police. Or they were represented by either their own Solicitor or Duty Solicitor at the Police Station, but that Solicitor had taken a decision not to continue to represent if they did not qualify for legal aid in the Magistrates Court, and would thus be “left for duty”.

A defendant would be produced in custody directly from being charged, if either the Police or the CPS could justify that this would be required, under the bail act, that there was a substantial risk that the Defendant would commit further offences, fail to surrender or interfere with witness or evidence if released on bail. In practice if a Defendant has persistently committed a number of offences in breach of Court Bail; or Breached Bail Conditions; or there are circumstances in respect of the nature of the case with particular aggravating features (Domestic Violence, vulnerable witnesses, higher gravity offences), these are the features that would normally trigger an initial remand in custody to Court.

In addition, I was diarized to also cover own client cases who were remanded to the Hatfield Remand Court this morning as well. To complicate matters a little bit further, I also had my 15 year old son in tow, shadowing me as a part of his work experience. I told him to keep a very good note, and to my surprise he did!

As duty you never know what cases you are going to have to deal with, and you they get handed out to you as the day progresses.

The first case was what appeared to be a simple breach of Community Order. The Defendant was in custody because he had failed to appear for his hearing and a warrant had been issued. I obtained the breach report, and reviewed it with him. He was immediately very vexed in the conference, and wanted to contest the breach and challenge all and sundry. I managed to talk him down from his uncompromising position and elicit certain crucial admissions. The main problem he had was that he was working a difficult shift pattern and struggled to fit in his appointments. He eventually accepted that the breach report was probably correct and he had not in fact been in touch with probation. I persuaded him to admit the breaches, and see if I could persuade the Magistrates to allow the order to continue. Thankfully this is what happened and he was released, and perhaps, a very unnecessary and costly and pointless trial was avoided.

The next case again appeared straightforward on paper. The Defendant was produced in custody of very serious allegations of a sexual nature, and was in breach of license conditions following release for a prison sentence for identical offences. He was to be recalled back to Prison in breach of his license. He realistically did not instruct me to make a truly pointless bail application, but he did not want to plead guilty to some of the offences. I advised him that not only was the evidence against him compelling to the point of overwhelming, but that also the Prosecution were bound to make a bad character application to adduce the facts of his previous convictions for identical offences in any trial. He was adamant he wanted to plead not guilty and I followed his instructions.

The final case was an own client produced in custody because he failed to attend a trial hearing, and had been convicted in his absence. He was then picked up for new offences. There were a total of 8 offences in the trial proceedings (mostly driving offences); and a further four other various offences including theft and assault. Incredibly, in the trial matters it appears

he was unrepresented. I was therefore required to make legal aid applications for all the charges. As he was an own client of our firm, I had to trawl through all of his previous files to ascertain if we had acted for him before, if we had legal aid, or if not, if any other firm did. These enquiries took some time in themselves. Eventually that case was ready and dealt with. I had a more onerous bail application to make on this occasion seeking to persuade the Magistrates to grant him bail even though he hadn’t bothered to turn up for his trial. I just about managed to persuade them to grant him bail, and the cases were split up into a committal for sentence to the Crown Court, and another trial.

I had to complete the requisite legal aid applications for all these matters before the day was completed.

This would normally be the end of the day, but I was also on Police station call. I had to drive my son home, so that he could make his theatre practice at his drama group. On the way home, I inevitably had Stevenage Police station on the phone telling me they had a case ready for interview, and when could I get there?

I made it to Stevenage, (from Watford), and was greeted by a very animated individual accused of assaulting someone attending his home from an Energy company. I could understand in many ways my client’s position and viewpoint. But unfortunately I had to advise the client that the evidence presented by the police was very, very strong (the complainant had recorded the entire incident on his phone). I tried to advise him to make admissions in order to maximise the chance of a caution, but such a disposal was always going to be the most hopeful of outcomes.

I finally made it home after nine o’clock, which is in excess of a twelve hour day. My son found it interesting, but I don’t think he wants to be a Criminal Solicitor.

Massimo Trebar Duty Solicitor, Lawtons Solicitors, Herts Law Society Committee member

A.I. in the Workplace –considerations for employment lawyers

Artificial Intelligence (AI) has dominated the news in recent months with some stories promoting the benefits of AI and others warning of extreme disaster scenarios such as the extinction of humanity!

Despite the potential dangers of AI and lack of regulatory framework, which is currently being considered at a parliamentary level, in practice the use of AI has arrived in our everyday lives and we will need to consider the impact that AI will have, and may already be having, in the workplace. In this article, we outline the possible uses and risks of AI in the workplace from an employment lawyer’s perspective, and practical steps that can be taken to assist clients to protect their business.

What is AI?

AI refers to computers and machines that can perform tasks that would normally require human intelligence such as reasoning, learning, decision-making and visual perception. The technology available today allows machines to analyse data and use memory to learn and develop so the performance of tasks is as effective, if not more effective, than a human performing the same function.

Examples of AI use for HR

So, how does this translate into the workplace?

AI is already being used by larger employers for laborious tasks such as screening candidates by sifting through CVs and application forms in recruitment. AI is also used to schedule and conduct interviews (by evaluating facial expressions and various cues) and filter candidates from online assessments.

AI can also be used to carry out procedural tasks usually allocated to HR functions such as maintaining databases of candidates or workers and managing employee information such as holidays, absences and performance.

The development of generative AI such as ChatGPT means that, in addition to the “categorising and identifying” uses above, AI systems will now more readily lend themselves to “creation” areas which previously required human intervention such as employee engagement and content creation. We are already seeing many examples of presentations, speeches, draft documents and conversation responses being created using AI.

Risks of using AI in an HR setting

Whilst the benefits of using AI for some tasks sounds positive, there are risks associated with the use of AI which may leave employers

in difficult situations, possibly resulting in expensive litigation. Employment lawyers need to be alert to these issues.

A well-known example of this came from Amazon in 2014 where they used AI to review job candidates’ CVs to rate the candidates on their suitability for the job. However, AI is only as good as the information it has been trained on and in this case, the AI had been trained using CVs submitted over the previous 10 years, which had been predominantly submitted by men. This created a significant bias in the output of the AI which determined that male candidates were better.

The generative AI technology available for employers to use today may have a similar algorithm bias due to the bias of humans creating the algorithms or bias in the data the AI uses to create its content. For example, it is possible that AI used to write job descriptions may use language which is more likely to attract male rather than female candidates (or vice versa). Further, AI is known to have previously been able to identify facial expressions more easily on humans with white skin than those from other ethnic backgrounds, which suggests bias could be present in AI used for video interviews.

It is therefore easy to see how the use of AI systems could lead to expensive discrimination claims. Indeed, often humans using AI do not actually understand how the AI has come to the decision it has reached or what information the AI used to create its content (and in many cases, the AI cannot explain its actions either). This will make any discrimination claim based on the use of AI difficult for employers to defend, because they will not be able to explain their reasoning, and employers may be held liable for an outcome over which it may have had no real control. Further, employers using chat functions, such as ChatGPT, to liaise with its employees will have limited control over what is actually being said which could lead to claims of harassment or constructive dismissal if there are inappropriate communications.

Practical tips

Increasingly, employment lawyers will be expected to give advice on issues arising from use of AI in a HR setting. Employment lawyers will need to consider, amongst other matters, the following with their clients who are eager to utilise AI in a HR setting:

• Confidence in the technology – Before employers implement a new technology in their business they should be confident that the company or

individuals who have created the technology can demonstrate that the risks of bias and discrimination have been minimised as far as possible.

• Human intervention – AI alone should not be used to make decisions or engage with employees. There should always be an element of human involvement in the recruitment process and employment relationship and HR professionals should be trained to critique decisions made by AI for signs that they may fall foul of the Equality Act 2010 or other employment legislation.

• Evaluation of bias – Employers should continually monitor and audit the effect AI is having on their workplace, such as carrying out equality impact assessments and monitoring diversity and inclusion to identify signs of bias.

• Policies and procedures – Employers should implement and maintain policies and procedures around the use of AI in the workplace, ensuring that the purposes for which it is used are clearly set out and the individuals using the technology are adequately trained.

• Recognise special circumstances – certain circumstances may make the use of AI inappropriate and separate systems should be put in place to accommodate this. For example, AI algorithms may be biased against individuals with a disability due to the activities on their CV being different to historic candidates or more time being needed to complete online tests. Even where an employer is confident it has safeguards in place to avoid discrimination against disabled persons, it would not be sensible to rely on AI in all scenarios and this may make it difficult for an employer’s decision making to be explained at each stage if the need to defend a claim arose.

• Data protection – Employers will also need to consider their data protection obligations and the rights of individuals where personal data is being processed using AI. This may include updating their privacy notice and conducting a data protection impact assessment.

Many employers are embracing the use of AI to help them effectively and efficiently recruit and manage their employment relationships and employment lawyers need to be aware of the real risks to their clients and assist them to take adequate steps to mitigate these.

Nicola Smyrl, Employment Partner, Taylor Walton LLP, Nicola.Smyrl@taylorwalton.co.uk

Annual Dinner Report

Thank you to all who attended our annual dinner and legal excellence awards at the historic Old Palace at Hatfield House on Thursday 6 July 20223.

The evening started with a drinks reception in the beautiful gardens and was followed by the annual dinner and legal excellence awards in the historic Old Palace.

Top table guests included our guest of honour Grace Ononiwu CBE, The Director of Legal Services at the Crown Prosecution Service, and representatives from other local law societies Jabeer Miah President of the Northamptonshire Law Society, Manesha Ruparel immediate past President of District and Derby Law Society, Janine McKinney immediate past President of Nottinghamshire Law Society, Alice Kinder Vice President of Birmingham Law Society and Finlay Everington, Deputy President of the ICAEW Beds, Bucks and Herts District Society. We were also delighted to be joined by Sally Burton DL, immediate past High Sheriff of Hertfordshire

and later for the West Midlands). Grace is now Director of Legal Services for the CPS, reporting directly to the Director of Public Prosecutions Max Hill.

Honorary Treasurer Judith Gower, immediate past president Steve Hamilton, as well as Michael Scutt and Tahir Nisar, for all their help in organising the dinner.

Legal Excellence Awards 2023 and Prize Winners

We are delighted to announce the winners of our Legal Excellence Awards and prizes. Many, many congratulations to all the nominees and to those of you who were short-listed. The competition across the categories this year was very high and the members of the judging panel were extremely impressed with the quality of the applications.

The Winners are as follows:

Grace is an inspirational lawyer and role model for us all. She is a huge supporter of Hertfordshire Law School, attending campus regularly to offer guidance and support to our students and is patron of Hertfordshire Law Clinic.

Best second year student at Hertfordshire Law School: Chloe Rohane with an amazing average of 79% in our second year LLB assessments.

Our keynote speaker Grace Ononiwu CBE delivered a powerful speech about her amazing career journey. She explained how she was first inspired to become a lawyer after her father was stopped by police but was then discouraged from her aspirations – instead her school careers officer advised her to consider becoming a legal secretary.

After failing her O Levels at 16, Grace picked herself up, secured a place to study Law at Hatfield Polytechnic (now the University of Hertfordshire), and has not looked back. She initially planned to join the Crown Prosecution Service for just two years, as a means of becoming a better defence lawyer, but instead she stayed to become the first woman and the first Black lawyer to become a Chief Crown Prosecutor (initially of Northamptonshire

Our chosen charity for the evening was Herts Young Homeless, an independent charity that supports vulnerable young people facing homelessness in Herts. We were delighted to welcome their CEO Jonny Whitehead who introduced HYH, and we then heard from one of their former service users Ricky Jennings who spoke movingly about how HYH supported him when he was made homeless as a teenager. Ricky is one of HYH’s many amazing success stories – he has now bought his own flat and speaks to local school children about his experiences to raise awareness of the support available from HYH.

Thanks to all who supported the charity by purchasing raffle tickets at the dinner and playing Heads or Tails. Prizes included a voucher for Sunday Lunch for Two at the Glass House, a Hotel Chocolat Hamper, lunch at Lussman’s in St Albans, Lunch for two at Hatfield House, Amazon vouchers, a Lotus Biscoff Hamper, a Virgin Spa day and treatment, champagne and one month’s family membership of Hertforshire Sports Village. We raised in excess of £800 for the charity and we hope that our lucky winners enjoyed their prizes!

Finally I would like to say a huge thank you to the Hertfordshire Law Society Council and particularly Vice President Kirsty Richards,

Chloe is described by her lecturers as:

A wonderful student who is always prepared for class and makes consistently excellent contributions.

An absolute pleasure to teach. She produced outstanding work on the module and demonstrated the ability to address complex issues, to conduct detailed independent research into the law and to analyse the law and apply it to a practical scenario.

Highest mark in the LPC exams by a Herts trainee. Amy Tapping from Crane and Staples with a remarkable 84% average.

Amy’s colleagues have said the following about her:

Amy is diligent, hardworking and for someone at her stage of her career she has an eye for detail in

Annual Dinner & Awards

Property. Not only is she technically very sound but brilliant with clients. I recently took her out to a meeting with a high net worth client and she shone.

She is lovely to have in the department, she uses her initiative, knows when it’s appropriate to ask for assistance and is a real team player

and beyond for clients who are often vulnerable or have complex needs

With hard work and commitment, Sian went above and beyond for her client in the law- changing case of Re H-W.

I do not know anyone that fights for their clients more than she does. Her attention to detail and her ability to always see the best in people makes her an outstanding care lawyer.

Hertfordshire Law Society Community Engagement Award.

The winner is the Shelter Court Runner Scheme which is a collaboration between Ruth Camp, the Hertfordshire Duty Solicitor from Shelter and Hertfordshire Law School students.

For over thirty-five years, Sharon has dedicated her working life to being an exceptional family lawyer. She has made a tremendous contribution to the training and development of so many legal professionals which has had a lasting impact on the legal community. She has guided over 40 aspiring lawyers through their training and her nomination included testimonies from many of her former trainees.

One of her former trainees wrote:

Emma is described by colleagues as follows:

She has an excellent level of client care that has been appreciated by clients and displays a commercial nous far beyond her years.

Her can-do self-motivating attitude led her to anticipate and resolve what was needed amongst my caseload without being asked.

The judges commended all of the nominees and said they would all have made worthy winners which made it an incredibly tough decision.

Professional Colleague of the year Rebecca Howell, Hertfordshire Law Clinic coordinator

She is the epitome of an excellent leader.She has a knack of knowing how to find the best in the community around her, this is an extraordinary woman who truly understands the value of employing and having people around her who are diverse and have different life experiences

We were also delighted to celebrate the achievements of our newly qualified solicitors:

• Blessing Skolodova

• Harjeet Panesar

• Isabella Mason

• Jenny Dodds

• Tara Tatti

And finally.... A huge thank you to our generous sponsors:

Sian is described as:

a passionate, determined care lawyer who goes above

Rebecca is described as quietly calm and efficient and she has made an enormous contribution to the success of Hertfordshire Law Clinic.

Hertfordshire Law Clinic Director Amanda Thurston collected the award on Rebecca’s behalf.

Headline Sponsor –Quantuma, DictateNow, Hertfordshire Law School, Verify365, Sworders

Fine Art Auctioneers, National Legal Service, OurFamilyWizard and Wrights Estate Agents

Diana Kirsch President Hertfordshire Law Society

Junior Lawyer of the Year Award - Emma White of HRJ Foreman Laws Solicitors

Excellence in Client Care Award Sian Churchill of Crane And Staples

Lifetime Achievement Award - Sharon Montgomery Of Crane and Staples Solicitors

Annual Dinner & Awards

Annual Dinner Gallery

Professional Enablers Taskforce announces crackdown on lawyers

The Ministry of Justice and the Home Office have today (8 August) announced they have launched a Professional Enablers Taskforce to crackdown on lawyers.

Law Society of England and Wales Deputy Vice President Richard Atkinson said: “This ‘taskforce’ has been around for months now, so it is not clear what, if anything, the government is announcing today. The government and regulators should

share intelligence about immigration advisers of all kinds if they have concerns. And, of course, action should be taken immediately if there is evidence of wrong-doing.

“The government, regulators and law enforcement agencies already have the powers they need to deal with immigration advisers engaged in misconduct.

“The overwhelming majority of immigration lawyers continue to support the rule of

law through their adherence to the law and professional standards set by the Solicitors Regulation Authority and provide an essential service to clients.

“The focus of the Home Office on a tiny minority of lawyers to which they are apparently applying considerable resources should not deflect from the fact that there remains significant backlogs in asylum claims or the unworkability of the Illegal Migration Act.”

Mark Evans elected as new Law Society deputy vice president

courses on real estate, private client and professional skills to those entering the profession from the Manchester, Liverpool and Chester campuses.

At the Law Society, Mark was a member of the Wales Committee for nine years and elected as chair of that committee for four years. He has also sat on the Law Society’s Council for more than eight years.

to have been elected as the next deputy vice president of the Law Society and the first in our history to be elected from North Wales.

“As we approach our bicentenary, now is the time to promote a modern, diverse and inclusive profession. I want to encourage ambitious and aspiring solicitors from all backgrounds to enter and stay within the legal profession.

Mark Evans has won the Law Society of England and Wales 2023 election for deputy vice president of the solicitor profession.

Mark will take office in October 2023. He will then become vice president in 2024 and in 2025, as the organisation celebrates its 200th anniversary, he will become president of the Law Society.

Mark practised property and private client law for more than 28 years. He was a director at Allington Hughes Solicitors, a cross-border general high street law firm with offices in North Wales and Chester.

In 2021, he joined the University of Law as a tutor and now teaches various

Mark has been a member of the Law Society Board and was a former president and chair of the Cheshire and North Wales Law Society.

Mark has more than 12 years of experience as a chair of various organisations.

As a Welsh office holder, Mark brings a new perspective to the Law Society with a comprehensive understanding of the Welsh jurisdiction and considerable experience engaging with the Welsh government.

Mark will be the first president of the Law Society to be elected from the constituency of North Wales.

Mark Evans said: “I am extremely proud

“During the coming years we must adapt to a changing legal landscape and utilise legal technology and innovation. I am, in particular, looking forward to welcoming new members at admission ceremonies and engaging with all members throughout England and Wales.”

Lubna Shuja , president of the Law Society said: “I extend my deepest congratulations to Mark, who emerged as the winner from a strong field of candidates. Mark will bring his own unique perspective and experience to the role.

"As we are the Law Society of England and Wales, it is great to see a Welsh member will take office. I look forward to seeing what Mark accomplishes in post and warmly wish him all the very best.”

NENew consumer campaign to launch Remember A Charity Week (11-17 September 2023)

As we move into the mainstream digital age, the role of the expert

The First

And, it mean

This year's campaign for Remember A Charity Week (11-17 September 2023) will showcase the breadth of people who choose to leave a gift to charity in their Will. With a new humorous consumer campaign encouraging people to be remembered for 'even more' than the warm and quirky moments in their lifetime, the consortium aims to open up conversation and inspire people to leave their own gift.

Remember A Charity Week brings together around 200 member charities and the campaign’s network of over 800 solicitors and Will-writers to encourage everyone to consider leaving a gift to their favourite charities in their Will, alongside gifts for family and friends.

The Week serves as a platform for charities to engage with supporters and the giving public, sharing their own legacy message. It’s also an opportunity to get their whole organisation’s support and buy-in for

legacies, championing the legacy message internally and with external audiences. For professional advisers, it’s a chance for them to promote to clients and prospects the importance of having an up to date Will.

Lucinda Frostick, Director of Remember A Charity, says:

“We’re encouraging charities, professional advisers, campaign partners and others to come together for Remember A Charity Week and use this opportunity to shine a light on the importance of legacies for charities across the country.”

“In the current economic environment, with even more pressure on budgets, prioritising legacy fundraising and securing sufficient resource isn’t always easy. So, this year, we’re providing new resources for charities to use internally, as well as customisable legacy materials that help charities start their own legacy conversations with supporters – and to build on that momentum and dialogue throughout the year."

Customisable legacy promotion assets

Alongside the new consumer campaign, Remember A Charity is issuing a new suite of customisable digital legacy marketing assets (including social posts, banner ads, posters, bookmarks) ahead of Remember A Charity Week, which member charities can personalise with their own messaging, imagery and branding.

Promotional activity for legacy giving continues throughout the year, with Remember A Charity working to drive conversation and build understanding of the importance of legacy giving among the giving public, government, and professional advisers.

To find out more or take part in Remember A Charity Week (11-17 September 2023), visit www.rememberacharity.org.uk

Proposals To Abolish Inheritance Tax Must Take Into Account Risk Of Legacy Income Loss For Charities

Over 50 MPs have called for Inheritance Tax (IHT) to be abolished, and Government is reported to be considering including the proposal in the Conservative manifesto. With the current IHT framework offering generous incentives for legacy giving – a growing and crucial income stream for UK charities, Remember A Charity will be calling on government and policymakers to consult with the sector and to ensure that legacy income will be protected.

Lucinda Frostick, director of Remember A Charity, says:

“Any change to Inheritance Tax that fails to consider the likely impact on legacy giving and just how vital this income stream is for UK charities would be of great concern to us at Remember A Charity.

“Legacy giving has become a lifeline for thousands of charities and communitybased organisations, building resilience and long-term income that has proved crucial in the current economic climate.

“As a representative body for 200 charities that rely on legacy income, we will be urging government and policymakers to consult with us and the wider sector to explore the likely impact on charities of proposed changes, ensuing that legacy income will be protected.”

What are the IHT benefits?

Charitable gifts in Wills are currently exempt from Inheritance Tax (IHT), charged at 40% above the IHT threshold. What’s more, those that donate 10% or more of their estate to charity benefit from a discounted IHT rate of 36%. This can make a considerable reduction in the amount of tax paid per estate,

enabling people to give generously, while also supporting their family and friends.

Read more:

What is the impact of the IHT incentives on legacy giving?

Legacy giving has grown substantially – with consumer polling indicating growth of over 40% in the past decade, and while it’s impossible to state with certainty how much of that is driven by the IHT incentives, the tax framework can be powerful influence on people’s capacity and propensity to give. Crucially, the IHT incentive creates the opportunity and impetus for solicitors, professional Willwriters and other legal advisers to raise legacy giving with clients.

Research from the Behavioural Insights Team indicates that even the simplest of charitable reference by solicitors during the Will-writing process doubles the chances that clients will leave a gift. Having tracked charitable estate trends reported by solicitors and Will-writers since 2014, we can see a 50% increase (from 16%-24%) in the proportion of professionally written Wills that include a charitable donation.

Key facts and figures

IHT is a minority tax impacting fewer than 4% of deaths (27,000 in 2020/21), and yet,

Estates paying IHT account for around one quarter of all charitable estates (9,680) and half of legacy income donated (£1.8 billion in 2020/21)*

Over one third (36%) of IHT estates include a charitable gift, with one in

four of those charitable estates (2,590 in 2020/21) including donations of 10% or more, qualifying for the reduced IHT rate*

Legacy giving is around six times more prevalent for IHT estates –36%* vs 6%**

Gifts in Wills now raise almost £3.9 billion*** for good causes annually, funding vital charitable services for charities and community-based organisations across the country. Legacy giving is an integral and thriving part of the UK’s philanthropic landscape.

Remember A Charity is working with the Chartered Institute of Fundraising and fellow sector bodies to build up a body of evidence on the importance of the IHT incentive and to formulate a collaborative response to Government.

Sources:

*HMRC IHT statistics and commentary, 2020/2021

**Smee and Ford, Legacy Trends Report, 2023

***Legacy Foresight, 2023 For more information see www. rememberacharity.org.uk/IHT

Age UK

With so many deserving causes to choose from, it can be a challenge for people to decide who to leave a gift in their will to.

By supporting Age UK Hertfordshire, any gift in wills will help some of the most vulnerable older people find comfort, support and friendship in the darkest times.

Why Us?

Do you have an elderly relative, friend, or neighbour living in Hertfordshire? Have you ever wondered what support is available to them if they are in need? So many of us take getting older for granted, we all want to grow old gracefully and look forward to enjoying our retirement, and for the majority of us that will be the case, but wouldn’t it be nice knowing that, if ever a helping hand is needed, there is a friendly team of people ready and waiting to provide the support that’s needed? As an independent local charity, that’s exactly what we are here to do, our aim is to support older people in Hertfordshire to lead fulfilling and enjoyable lives.

We are a person-centred charity and provide

services tailored to the specific needs of an older person at any time in their life, whenever they need us. Our aim is to help people to continue to live independently in their own homes and maintain choice and control over how they live their lives. Our services are developed in partnership with older people so that we remain responsive and relevant to their changing needs.

What We Do

We support over 15,000 older people in Hertfordshire each year through our services, and specifically, aim to reduce the debilitating health impacts of loneliness and social isolation; improve mental and physical health; provide opportunities for people to socialise with others; reduce barriers to using new digital technology’s; improve the quality of life for people living with dementia and their carers; support people with hospital discharge and aid their recovery; support people to get the financial benefits to which they are entitled in order to be able to afford to make the choices that are right for them.

Gifts in wills are vital to Age UK Hertfordshire,

helping us to run our services that thousands of older people in Hertfordshire rely on each year. With an ageing population, we know demand for our support is only going to increase. As a local cause, we naturally do not have the same reach, or resources, to advertise our services like larger, national charities do. Often mistaken as a national charity we also find there is confusion around who we are and what we do. This can lead to missed opportunities when it comes to being named as a beneficiary in a Will.

As opposed to the larger, national charities, when leaving a gift to Age UK Hertfordshire, people can be assured that any gift that they leave to us will only be used to support older people in Hertfordshire.

E: fundraising@ageukherts.org.uk

T: 01707 323 272

Age UK Hertfordshire, First Floor, Beane Bridge House, 34 Chambers Street, Hertford, SG14 1PL.

Registered charity number 1116662. Company number 03539971. ® Age UK Hertfordshire 2023. All rights reserved.

Book Reviews

Appreciations by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator

and Indemnities on Share and Asset Sales’ has become, over the decades (since the eighties at least) the definitive work of reference on this often-abstruse topic. Now it has arrived in a new twelfth edition from Sweet and Maxwell and, as General Editor Robert Thompson explains, it ‘reflects the changes in law, conventions and practice’ that have occurred since the previous edition published in 2020.’

Sinclair On Warranties And Indemnities On Share And Asset Sales

12th edition

General Editor: Robert Thompson

ISBN 978 0 41411 203 2

Sweet & Maxwell/Thomson Reuters Commercial Series

www.sweetandmaxwell.co.uk

‘A PROMISE MADE IS A DEBT UNPAID’: THE SIMPLIFICATION OF A RANGE OF COMPLEX ISSUES RELATING TO WARRANTIES, NOW IN THE NEW TWELFTH EDITION OF THIS DEFINITIVE TEXT

Yes, fundamentally a warranty is a promise. Or, as Robert Service, ‘the Poet of the Klondike’ once wrote: ’a promise made is a debt unpaid,’ thus summing up with stunning simplicity, the essence of warranties. Well, he was a banker, wasn’t he? And a Scottish one to boot. Not surprisingly, he left the gold and the cold of the Klondike for retirement on the French Riviera, mainly financed, it is said, by the royalties earned from that slender and wildly popular volume of verse of his, entitled ‘Songs of a Sourdough.’

A lot more recently, it has also been pointed out that a warranty in an insurance policy, for example, is a promise by the insured party that the contractual statements made therein are true. However, the almost infinite variety, scope and complexities of warranties and their attendant legalities would fill a book -- and that is precisely why ‘Sinclair on Warranties

Certainly, the past three years of upheaval -caused primarily by the Covid-19 pandemic -- have wrought profound changes indeed, hence the utility of this book, which as the title indicates, focuses on warranties and indemnities on share and asset sales.

The book is nothing if not broad in its scope. In particular, a key chapter for those needing information on share sales offers pertinent information and advice, including analysis of the remarkably broad range of individual warranties which are discussed under a broad range of categories, including accounts... finance... trading and contracts... environmental... employment... and pensions. ‘Assets’ of course comprise an interesting category that encompasses Intellectual Property rights, and IT systems, not to mention Covid 19 insurance and money laundering.

The book, as the author points out, ‘is intended to be a practitioners guide, rather than academic treatise,’ containing as it does, ‘insights from both a purchaser and vendor viewpoint’ while at the same time stressing the insights and techniques needed for informed and ultimately successful negotiation, in an area of law in which ‘knowledge is power.’

The book’s research resources are therefore useful, if not essential, including extensive tables of cases, statutes, and statutory instruments. And for easier navigation, there is a detailed table of contents, four appendices and an index of over twenty pages. Also, digital access to precedent content is now provided on the eReader platform (ProView). As a practitioner’s guide to this unarguably complex area of law, this book certainly excels.

The law is stated as 1st January 2023. The hardback 12th edition was published by Sweet and Maxwell on 26th April 2023.

Great Legal Writing Lessons from Literature

By Max Barrett

ISBN 978 1 78742 949 9

Globe Law and Business Ltd

www.globelawandbusiness.com

AS WORDS ARE THE BASIC TOOLS OF ADVOCACY, ALL LAWYERS SHOULD READ THIS BOOK

Does law link with literature? Yes, of course it does. Both are about words: words and their intrinsic power to influence when effectively used, bearing in mind that while good writing does influence -- great writing, for good or ill, exerts power.

As the author of this book, Max Barrett -- who is also a judge -- states very simply that ‘the law consists of words’ -- hence the necessity of cultivating a clear, lucid and “polished” writing style, especially when you consider the vast amounts of paperwork and documentation most cases require.

So if you’re a lawyer who writes well, get this book -- a recent publication from Globe Law and Business. It will inspire you to write even better, superbly well in fact. Or, if you’re already a superb writer (lucky you) you will be pleased to be reminded that good writing emanates from honesty and clarity of thought.

As you can immediately detect from the title, the focus of the book is less on “good” legal writing, than on “great” legal writing. And

note the sub-title: ‘Lessons from Literature.’ As the publishers point out, the book provides lessons, mainly statements of opinion on the art of brilliant expression from a noteworthy selection of undeniably brilliant writers of the past whose work continues to inspire. And even if you may disagree in part with what some of them say, you cannot fault the way they say it, or indeed the quality of the advice they offer.

E. M. Foster, for example, offers advice on ‘writing and voice’, focusing on tone... vocabulary... rhythm and cadence... and much, much more. Other writers featured in this volume include D.H. Lawrence (yes, him), Guy de Maupassant, Thomas de Quincy, Thomas Hardy, Henry James, Robert Louis Stevenson, Anthony Trollope, William Hazlitt, Virginia Woolf and more besides. And if at this point you are asking why only one female author (??), your query will no doubt inspire another book.

Certainly, this book may well answer -- or inspire further debate -- on the concern expressed by judges, for example, on the evidently deteriorating quality of written submissions by all too many lawyers of late -barristers as well as solicitors -- and judges too, as we are reminded that ‘the “triple crown” of judgment writing is ‘clarity, simplicity and brevity.’ Note too, the appendix on 'Writing for the young and vulnerable.’

In all, the book presents readers, primarily lawyers, with a distinguished work of scholarship on a subject that is all too rarely discussed. The encouraging prospect is that this book will in general, raise levels of awareness, particularly in the legal profession, that words -- the basic tools of advocacy -should be used wisely and well.

The date of publication of this new hardback edition from Globe Law is cited as 16th February 2023.

Oxford University Press

Oxford Private International Law Series

www.oup.co.uk

HOW DOES PRIVATE INTERNATIONAL LAW WORK IN ENGLISH COURTS POSTBREXIT? READ THE DEFINITIVE WORK ON THE SUBJECT: NOW IN A NEW SECOND EDITION FOR 2023

The publication of this new edition of ‘Private International Law in English Courts’ from Oxford University Press, part of the Oxford Private International Law Series -- is nothing if not historic when you consider that the first edition was published eight years ago in 2014.

Since then, the world in general and the United Kingdom in particular have had to tackle one upheaval after another, starting with the Brexit vote in 2016, the impact of which was exacerbated by the dismaying and disruptive effects of the Covid 19 pandemic.

receding tide of European legislation has left behind and seeking to build around it with the materials... offered by our own constitutional order: shattered statutes, complex rules of procedure and an evergrowing mass of cases.’ And he does it very well indeed.

With these bewildering realities in mind, how does one cope? Or, in the words of Professor Briggs, ‘how... does it feel to have taken back control?’ Obviously, there is no simple answer out there to this conspicuously complex -- and by now, oft repeated -- question. Indeed -- and obviously, there is a multiplicity of answers to a multiplicity of questions linked to the complexities of this issue.

What this book does is to provide practitioners with the insights, the guidance and the techniques needed to function successfully within the new landscape of international law. This new edition, says the author, aims ‘to show and explain how private international law works in English courts, using the jurisprudence to help to paint, rather than to overwhelm, the picture.’

Private International Law In English Courts

Second Edition

By Professor Adrian Briggs KC

ISBN 978 0 19288 814 5

But, as is pointed out in this latest edition of this important and authoritative work of reference, it is Brexit, which (as expressed in the Series Editors Preface) confronts us with the necessary task of ‘re-surveying and re-building the landscape of the conflict of laws in England and Wales.’

In addition, that the book’s erudite author Professor Adrian Briggs KC has undertaken ‘the role of chief surveyor painstakingly charting the shoreline to see what the

Certainly, this distinguished text delivers plain speaking, thought provoking and practical content. Copiously footnoted throughout, it features logical aids to navigation, including a detailed table of contents, (plus a summary of contents) and a fourteen-page index. Its twelve chapters cover every pertinent aspect of what an intrinsically complex area of law is, including: tools and techniques... jurisdiction... ancillary measures... foreign judgments... contractual obligations... non-contractual obligations... property... corporations... adults... children... and finally, arbitration.

Also note the more than forty pages of tables of cases and of legislation. Practitioners in international law everywhere will no doubt regard this book as an essential purchase.

The date of publication of this second hardback edition is cited as 25th September 2022. The law is stated as at 22nd September 2022 (the author’s 66th birthday!)

PII Update - Looking ahead to the October renewal season

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

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

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

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

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

AWithout wishing to dampen the positive tone of this update, the one caveat to give is that the dilution of rates doesn’t necessarily mean that there’s set to be a dramatic reduction of premiums. For many firms, rising inflation has fuelled an increase in fee income, which will naturally have an impact on the premiums charged by insurers. It does mean, however, that for well-run and successful practices, the cost of PII premiums should not erode profit margins further, as it may well have done at recent renewal periods.

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

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

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

I encourage you to use this opportunity to help your chosen representative(s) to educate insurers about your firm, what you do, and how you do it. Consider the fact that specialist underwriters are not solicitors, and although they will understand risk and the ramifications of any mistakes, they may not understand the intricacies of your specialism entirely. At the same time, no two practices are identical, so articulate why you are better. As they say, perception is not always the reality – an underwriter could always form an opinion which is incorrect. And once opinions are formed, they are much harder to change.

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

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

We would welcome an opportunity to canvass the market for all members of Hertfordshire Law Society, or provide a second opinion. We have direct access to more active participating insurers than any of our peers, and will have insurer solutions that your current representatives cannot provide for you.

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

Brian Boehmer Partner

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

Tales of a pan-European legal software supplier

Ruud Pepping, CEO of LSSA member company BaseNet, shares his experiences of developing software across multiple jurisdictions and shows how BaseNet continues to navigate the challenges it faces. BaseNet is a legal software vendor with offices in the Netherlands, Belgium, Spain and the UK.

What are some of the most apparent differences between EU countries and the UK that legal technology vendors need to be aware of when developing software?

Even at the most basic level of billing, there are stark differences between EU member states and the UK. While both UK and Dutch legal professionals predominantly work with billable hours, other countries differ. In Spain, for example, users focus on invoicing default activities which they assign to their clients. Billable hours and the time spent on those activities are much less relevant in the Spanish legal sector. In Belgium, there are many different ways in which a solicitor bills a client. There is the familiar route of billable hours but, in addition, we have found that our software also needs to be able to count the number of pages of emails and documents, because this is the most common basis for billing in Belgium.

Automation and integration with large regulated systems will, by their very nature, be complicated, time consuming and risky to develop and implement. What are some of the more recent challenges you have met when delivering legal software solutions in the Netherlands?

The Netherlands central government project started disastrously with a project called “Kwaliteit en Innovatie” (“Quality and Innovation” within the judiciary) a few years ago. This project was initiated to allow digital access to jurisdiction for solicitors, civilians, bailiffs and different government bodies.

To cut a long story short, the Dutch government invested over €200M in this project and spent many years working with expensive external consultants to try to complete it – after which it was abandoned. BaseNet had invested a lot of time and money on development resources to create a module for its legal users in the Netherlands. Users were able to use this at no

cost until the government decided to pull the plug; unfortunately this meant that BaseNet was also forced to decommission this service as part of its software.

Shortly after this, the Dutch government decided to abandon the fax. Then, from the beginning of February 2022, it would only accept emails sent through a mail supplier which was certified NTA7516 or eIDAS: eIDAS stands for electronic Identity and Trust Services and is an EU security standard covering aspects such as digital identities and digital signatures. From January 2024, solicitors will only be able to use vendors that are eIDAS certified to send emails to courts. BaseNet has integrated this service with help from a third-party vendor, Aangetekend Mailen.

The Dutch Administration of Justice is also working on a new project called Project DT (Digital Access), of which not so much is known at present. Development started a few years ago and, with many delays, there is no clear date for the launch of this project.

Have you experienced challenges of this nature in other EU countries?

We find that there are not many EU standards for the industry: all countries use their own systems with their own characteristics, idiosyncrasies and development techniques.

In Belgium, the Flemish Bar Association established an IT partner in 2014 named Diplad, which was responsible for developing, maintaining and improving the IT services provided to solicitors. Together with the French Bar Association of Belgium, Diplad created a platform, DPA (Digital Platform for Attorneys) to automate and digitise the communication between attorneys and all other judicial authorities.

From the start, BaseNet integrated all the offered services for its Belgian clients, so they could use this functionality without having to leave the BaseNet software. For this integration, BaseNet was awarded the label of Gold Partner. Unfortunately, DPA completely changed its codebase, so that BaseNet and other vendors had to start development again to re-integrate the offered applications in the software. Diplad is currently looking to include extra services

which can be added to the software platform.

In Spain, the main platform for the secure exchange of information between judicial bodies and a variety of legal operators is LexNet. However, owing to the singularities of the country, it is not fully functional in all the autonomous regions, such as Catalonia or Basque Country, where they have their own platforms. BaseNet worked on the integration with LexNet until it was certified in 2021, so that its users can connect directly with LexNet using the BaseNet platform.

In these scenarios documentation is often missing, creating a secure robust connection is usually quite challenging and the communication needed to alleviate problems faced can sometimes be quite cumbersome. Overall there is still a lot of room for improvement to make things easier for legal software providers.

What can be done to remove these hurdles for legal software providers operating in EU countries?

These sorts of challenges and experiences demonstrate the importance of developing standards both within countries and across regions like the EU. This will help to break down barriers which many software vendors like us face, but will also give those companies confidence, thus encouraging business across Europe and driving innovation and cooperation in the sector.

Trade bodies such as LSSA based in the UK can play an important role in helping to standardise and share valuable information for industry players by representing the legal software industry, operating as a trusted voice and an advocate, showcasing best practice in the market and liaising with government for the benefit of all parties involved in legal technology.

Regional and EU associations like the LSSA are crucial for driving and regulating standards across Europe and globally, helping companies to develop software in an efficient, productive and collaborative way, and improving communication between organisations.

For more information, please visit www.lssa. co.uk

Replacing Expert Witnesses: Expert shopping or genuine concern?

Defence [2003] EWCA Civ 1043 per Simon Brown LJ at [24]-[26]; Vasiliou v Hajigeorgiou [2005] EWCA Civ 236 per Dyson LJ at [29]-[30].

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

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

Changing the Fire Engineer

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

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

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

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

The court’s power to change an Expert Witness

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

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

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

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

iv) Where a party requires the court’s permission to rely on a new expert in substitution for an existing expert, the court has the power to give permission on condition that the original expert’s reports, containing the substance of the expert’s opinion, are disclosed to the other parties and such condition will usually be imposed: Beck v Ministry of

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

Changing the Forensic Scientist

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

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

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

The reasons for this are:

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

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

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

• In the interest of fairness and transparency, one of the defendant’s had not been involved in the dispute in the early stages and therefore their expert did not participate in early investigations.

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

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

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

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

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

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

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

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

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

Learning points:

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

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

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

Recent case study:

FRP appointed as party expert in a family dispute over the ownership of approximately 40 companies and a number of properties.

We are frequently instructed as forensic accountants in relation to family disputes. In the last year we have been employed on a number of cases involving families with interests in farming, construction, property development and investment.

Typically, families who have been shareholders or partners in family businesses for a number of generations reach a point where two sides of the family have conflicting views of future strategy. In farming businesses there can be a disagreement between those family members who wish to focus on farming whilst other family members wish to diversify into alternative sources of income.

The forensic accountant may be instructed to look at a number of aspects including:

• The valuation of one or more businesses and individual’s interests, and the latent tax liabilities associated with the ownership.

• The historic record of shareholder or

partner cash extraction from the business.

• The funding of property acquisitions.

• The commerciality of related party transactions.

• The manner in which business interests can be restructured and assets divided, or cash extracted to split the family interests.

In this recent case, Fiona Hotston Moore of FRP Forensic Services advised a family over a lengthy dispute regarding the ownership of several properties and a number of businesses, with the matter settling out of court.

Background

An ongoing family dispute with regards to the beneficial ownership of approximately 40 companies and a number of properties resulted in the matter being listed imminently for a court hearing. Fiona was appointed as party expert on behalf of one party, being a group of the family shareholders, to determine historic distributions and what inference could be drawn in relation to the beneficial ownership of the companies.

Action

The Forensic Services team was instructed to undertake a financial investigation to review the bank statements, companies accounts, tax filings and accounting ledgers over a 10year period. From the detailed investigation, the team was able to give an opinion on the distributions to family members and the implication in relation to beneficial interest in the companies. The team also gave an opinion on the beneficial interest in a number of properties, based on tracing the flow of funds. The findings were collated and submitted through an expert report and Fiona then prepared a joint statement with the other party's expert.

Outcome

Following the submission of the reports and just two days before the scheduled court hearing, the parties reached a settlement. The instructing solicitor noted, ‘can I also please add my thanks to you and the team for all your hard work on this and being so flexible with your time. The quality of your report will not have been lost on the other side and no doubt will have played a part in their desire to settle’.