Hertfordshire Law Society Gazette issue 56 - Autumn 2023

issue 56 Autumn 2023

Hertfordshire Law Society Gazette

Diana Kirsch meets the High Sheriff of Hertfordshire Read the President's Report on page 5

Also this issue:

• Herts Law School's Access to Practice Scheme • Supporting employees with menopause in the workplace • Modernising the LPA Process: Powers of Attorney Act 2023 And much more...

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Contents

Hertfordshire Law Society Gazette

Contents issue 56 Autumn 2023

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Council Members for 2023 From the President Supporting employees with menopause in the workplace Another day another Golden One Hertfordshire Law School introduces Innovative Access to Practice Scheme

Published by: EAST PARK COMMUNICATIONS Ltd. Maritime House, Balls Road, Birkenhead, Wirral CH43 5RE Tel: 0151 651 2776 simon@eastparkcommunications.co.uk www.eastparkcommunications.co.uk

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What is the new Renters Reform Bill?

Modernising the LPA Process: Powers of Attorney Act 2023 Mental Health & Domestic Abuse Understanding charity beneficiaries Book Reviews Expert Witness Institute urges removal of new intermediate track

Advertising Simon Castell

Design Chris Gough East Park Studio

Managing Editor Jeremy Chandler-Smith

Accounts Tony Kay

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rule in civil claims cases The use of DNA testing in legal practice Access to justice undermined due to lacklustre online court services The Importance of Family Tree Verification Accounting Expert Witnesses

Published: Autumn 2023 Legal Notice © East Park Communications Ltd. None of the editorial or photographs may be reproduced without prior written

permission from the publishers. East Park Communications Ltd would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of East Park Communications Ltd. Correct at time of going to press.

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 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

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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

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

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

Massimo Trebar of Lawtons (Criminal Lawyer)

Claire Sharp Debenhams Ottaway (St Albans) Private Client

National Council Member

Penny Carey (University of Hertfordshire)

The Law Society Relationship Manager – East Jack Dunkley Parliamentary Liaison Officer Judith Gower

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

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

Hertfordshire Law Society Gazette

Editorial

From the President...

I am pleased that we have been able to provide some free professional training for our members over the last few months. In July we ran a free session, led by expert accountant Robert Blech of MHA Accountants, on the hot topic of proposed changes to the Solicitors Accounts Rules.

such positive feedback from students and lawyers alike about the scheme and I hope that we can run it again next year. If any firm would like to get involved then please get in touch with me.

It was World Mental Health Day on 10 October and I thought I would take this opportunity to highlight the work of LawCare, a mental wellbeing charity for the legal profession offering free, confidential, emotional support, peer support, and resources to those working in the law.

A 2021 study by LawCare showed that very high numbers of lawyers were at risk of burnout. This month LawCare has published some helpful guidance to workplaces on how to review organisation culture and working practices in order to create an environment which supports psychological safety and mental health.

Lawyers in need of support can call LawCare on 0800 279 6888, email support@lawcare.org.uk or go to www.lawcare.org.uk.

This month we were pleased to host an online training event on money laundering and client due diligence with Azeem Rashid and Leila Chaudry of Verify 365 who also sponsored our annual dinner.

I would like to thank all Hertfordshire Law Society members who have supported Hertfordshire Law School’s new Access to Practice scheme which aims to give a week’s work experience and informal guidance to law students from widening access backgrounds who would otherwise struggle to access work experience opportunities that other students can take for granted. It’s been really lovely to hear

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Thank you so much to Hertfordshire Law Society Vice President Kirsty Richards who attended the Local Law Societies’ Annual Conference on my behalf last month.

The conference covered a number of key issues including current Law Society campaigns around access to justice and promoting an inclusive and diverse profession. The conference also provided a useful forum to discuss practical ways to reach and encourage aspiring solicitors and increase engagement with local law societies.

I was delighted to attend the High Sheriff of Hertfordshire Liz Green’s garden party in September which was held in the beautiful surroundings of Ashridge House in Berkhamsted.

Despite the rain it was a lovely afternoon and it was really interesting to hear more about Liz Green’s theme of 'Reading, writing and rehabilitation', and her aim of bringing people together to improve literacy levels in Hertfordshire.

I am pleased to be working with Liz on a one day conference on this topic which will be held at University of Hertfordshire on 29 November. We will be welcoming speakers from charities including The Shannon Trust and The Reading Agency, which support prisoners to improve their literacy.

Other contributors include HMP The Mount, and employers such as Timpsons and Iceland supermarket which are committed to employing former offenders.

The keynote speech will be delivered by HHJ Wendy Joseph, former Old Bailey judge turned bestselling author. If you would like to attend please get in touch – d.kirsch@herts.ac.uk Continues over page...

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Editorial Articles

From the President (continued)...

We are looking forward to welcoming Lady Hale to the University of Hertfordshire on Wednesday 15 November. This is a wonderful opportunity to hear Baroness Hale reflecting on her experience as the first female President of the Supreme Court. All Hertfordshire Law Society members are welcome to attend this free event.

I was honoured to attend the HACRO (Hertfordshire Association for the Care and Rehabilitation of Offenders) Awards ceremony which was held at the University of Hertfordshire last month.

HACRO is dedicated to helping people in Hertfordshire who have been on the wrong side of the law to turn their lives around.

The annual awards recognise the amazing progress made by those supported by HACRO. It was a really memorable evening and so inspiring to meet the winners and hear the testimonials from their mentors.

Finally, I would like to thank the Hertfordshire Law Society Committee for finding time in their busy schedules to support the work of the Law Society. If you would like to join the committee, or if you have any suggestions for future CPD or events please get in touch.

Diana Kirsch President, Hertfordshire Law Society

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Hertfordshire Law Society Gazette

Editorial Articles

Supporting employees with menopause in the workplace 18

th October was World Menopause Day. Its aim is to raise awareness, break the stigma and highlight the support available for improving health and wellbeing for those experiencing menopause.

a claim for constructive unfair dismissal if they have been employed for 2 years or more. It is possible that a lack of support may amount to a fundamental breach of the implied term of mutual trust and confidence, leading to a successful claim.

Government research indicates that women over the age of 50 are the fastest growing group in the workforce, with approximately 8 in 10 women over the age of 50 in regular work. The average age that a woman (and other people who have a menstrual cycle) will go through menopause is 51.

Menopause and discrimination Currently, there is no legislation that confers protection specifically for the menopause. Despite calls from the Women and Equalities Committee for better protection, there are currently no proposals for this to change. However, issues relating to the menopause at work may lead to claims for discrimination under the Equality Act 2010.

Ellie Thompson

As more employees go through the menopause during their working lives, and issues relating to menopause receive increased attention in the press, employment lawyers need to be aware of the steps that employers ought to be taking to effectively manage and support staff experiencing menopause, in order to assist both employer and employee clients with issues in this area.

What are the symptoms of the menopause?

According to the NHS, common symptoms associated with menopause include hot flushes, mood swings, anxiety, difficulty concentrating, migraines, fatigue and difficulty sleeping.

In 2019, the Chartered Institute of Personnel and Development surveyed 1,409 women who were experiencing menopause symptoms. 59% said that menopause was having a negative impact on them at work and only a third felt supported by their manager. In some cases, this caused employees to make plans to leave their job because they felt unable to manage the demands of their role.

Failing to support an employee who is experiencing menopause symptoms may also lead to complex legal issues, including claims in the employment tribunal.

What are the potential legal issues?

Unfair dismissal It is not uncommon for employees to resign in response to what they perceive as a lack of support in the workplace regarding menopause. In such cases, the employee may bring

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Where an employer dismisses an employee for a reason such as poor performance, menopause symptoms may be a mitigating factor and must be considered in a reasonable way. Dismissals which fall outside of the reasonable range of responses available to an employer will be unfair.

Disability discrimination - A person will be disabled under the Equality Act 2010 where they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The employment tribunal has now recognised that in severe cases, menopause may be a disability for employment law purposes.

Where an employee is disabled, the employer may be under a duty to make reasonable adjustments. For example, in the recent case of Lynskey v Direct Line Insurance Services Ltd (2022), the employer was ordered to pay one of its former workers £64,645 after the Employment Tribunal found it failed to make reasonable adjustments for an employee with menopause symptoms, who later resigned. The employment judge was critical that the employer had been unwilling to recognise the impact of menopause symptoms on the employee’s performance and attendance.

Age and Sex Discrimination - It may be possible for individuals to show that they have been treated less favourably due to their age, given the close connection between menopause and age. Additionally, women who are treated less favourably than men can bring a claim of direct sex discrimination. Sex discrimination could arise if menopause symptoms are treated differently from other medical conditions. In one recent case, an employment tribunal took the view that there had been sex discrimination because an employer did not recognise the impact of the menopause on an employee’s performance when a condition that affected both sexes had or would have been treated differently.

Hertfordshire Law Society Gazette

Education

Points to note Considering the potential consequences of failing to support employees experiencing menopause, it is important for employer lawyers to give thought to these issues and how they may affect their clients.

This is also an area that the Government is keen to promote and is likely to lead to more enquiries in this area. In March 2023, the Government appointed Helen Tomlinson as the first Menopause Employment Champion. She will work with the Department for Work and Pensions to drive awareness of issues surrounding menopause and work while promoting the benefits for businesses and the economy when women are supported to stay in work and progress.

If you are advising employees experiencing issues at work which may be related to menopause, there are a number of recent employment tribunal cases in this area which may be relevant to the issues faced by your client. If you are advising employers, even in the absence of any immediate issues it is a good idea to have processes in place to support employees experiencing menopause. A good starting point is thinking about developing a menopause policy, and training staff and managers

on the expectations set out in the policy. Although there is no legal requirement to do this, having a policy can assist staff and managers on how to recognise and address workplace issues relating to menopause with appropriate care and sensitivity. This is likely to reduce the scope for claims to arise.

Case law concerning the menopause tends to focus on flexibility and provision of reasonable support to employees affected by menopause symptoms. ACAS has produced helpful guidance on how to support employees who are experiencing menopause which highlights the importance of an open workplace where staff feel comfortable to discuss menopause and conducting risk assessments to ascertain how an organisation can identify and address menopause related difficulties for staff.

Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.

Ellie Thompson Taylor Walton LLP

Another day another Golden One

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ell the big news is that the golden one is now a big brother. He apparently has a baby sister which my slaves (aka my hooman parents) keep going to see and leaving me on my own. At least they haven’t been here to see me yet. I do feel sorry for their master Oliver with two of them however I am reliably informed that he is taking it well.

Since both my slaves are now retired, they keep going out a lot. It is really not fair they should be here to do my bidding all the time.

I don’t like the weather, sometimes it is a reasonable temperature and other times it is too cold for me at night. I also don’t like rain as I have to dry off on bedclothes or a blanket. It has been the right temperature for me to pull an occasional overnighter. The slaves worry about me if I am out all night as I then saunter in for my breakfast and spend hours asleep on their bed. Don’t I look adorable curled up on their bed?

Don’t forget that November 5th is bonfire night and we animals hate the sound of fireworks so make sure that you keep your cats and dogs safe. @princessgigi2019

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Expert Witness

Hertfordshire Law School introduces Innovative Access to Practice Scheme

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ertfordshire Law School proudly unveiled its Access to Practice Scheme this summer, specifically designed to address the barriers that law students often face in securing practical experience within the professional arena..

Law students frequently struggle to secure work experience opportunities, especially if they lack personal connections to law firms. Many firms offer virtual placements and mentorship programs, and while these are valuable, our students tell us that they are looking for experience in the workplace. In response to this need, the Access to Practice Scheme gives students the opportunity to immerse themselves in actual workplace environments, providing them with an authentic perspective of their chosen career paths.

The Law School received a generous grant from the University's Widening Access team, recognising the financial burdens that many students bear as they work part-time or even full-time to support themselves and their families during their academic journey. Students were provided with a small grant to cover essential expenses such as travel and meals, allowing them to fully engage with the scheme.

Students went through a rigorous selection process, completed compulsory training and were required to sign student contracts agreeing to high

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standards of professionalism and client confidentiality. We matched 20 students with dedicated volunteer mentors from a range of professions, including solicitor firms, barristers (including a KC), the Hertfordshire Constabulary, and local charities and most completed their work experience over the summer vacation period.

Participants gained unparalleled access to practical work experience, invaluable guidance, and exclusive networking opportunities within the legal profession. We have received fantastic feedback from students and mentors alike and hope that we can continue to run this scheme again next year. You can read accounts from our student Kerry Nicolls and volunteer mentor Kirsty Richards of National Legal Service (current Vice President of Hertfordshire Law Society) below.

We are really grateful to all Hertfordshire Law Society members who took part in our scheme. If you would be interested in taking part next year please contact me.

Diana Kirsch - d.kirsch@herts.ac.uk Kerry Nicolls, LLM Legal Practice student Hertfordshire Law School I was lucky enough to be chosen to take part in the University of Hertfordshire’s Access to practice scheme this year, where I was paired with my mentor, Kirsty Richards,

Kerry Nicholls who is a Director and Head of Family at National Legal Service (solicitors).

Throughout my Undergraduate degree I had a special interest in family law and making a positive impact, so this was a perfect opportunity for me to gain invaluable first-hand experience at a firm that treats each client with such care, empathy and delicacy.

On my first day I travelled to their London office and met with Kirsty for the first time, she was extremely welcoming and showed me around the office and gave me a chance to meet her team. We looked over some court bundles and I quickly learned how complex the role of a Family solicitor is; Kirsty treated each client with care and was extremely thorough in all of her tasks throughout the day.

Hertfordshire Law Society Gazette

Education

Kirsty Richards During my time at the firm, I was able to attend a remote hearing for care proceedings at which Ms Richards represented a child (through the appointed children’s guardian). The hearing was conducted by a Circuit Judge sitting at Barnet family court. I also attended a meeting with a guest speaker, Dr Rachael Grey who is the founder of Project Lighthouse which

is a charity focused on survivors of domestic abuse and child removal. It was very insightful to hear from the legal team and hear their thoughts and questions about how the work Lighthouse does relates to the family legal sector. Overall, my time was spent overseeing case work and emails as well as speaking with employees of the firm and learning about their journey of getting hired at such a prestigious firm.

The access to practice scheme helped me gain a better understanding of the work of a solicitor and the inner workings of a law firm.

I got to see first-hand the day-to-day work of a solicitor. I feel very lucky to be matched with Kirsty who specialises in care and supervision proceedings, with an ongoing passion for domestic abuse and complex private children law matters. Kirsty conducts her own advocacy wherever possible. She has also published many articles and is involved in working directly with prisons to provide support for people in vulnerable positions. This has meant that working directly with Kirsty has

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been hugely informative and enjoyable I would definitely recommend the access to practice scheme to other students.

Kirsty Richards Head of Family, National Legal Service It was an absolute pleasure to have Kerry shadow me for 3 days.

I tried to make sure she had a varied experience across those days (although one day was heavily centred around her shadowing me on a typical day, chained to my computer, managing an extremely high number of emails).

I ensured that I talked through my thinking before undertaking any task, to provide insight into what considerations there are for each email and document that comes in and how that fits into case strategy and preparation for court hearings. I am sure that it has offered valuable insight for Kerry as learning law academically is quite often so far removed from law in practice – I would recommend employers getting involved in this as it is beneficial for everyone involved.

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Expert Witness

What is the new Renters (Reform) Bill 2023?

Sheryl Hartigan

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n this article, Sheryl Hartigan outlines the proposals in the new Renters (Reform) Bill 2023 and explains how this will change the current situation for landlords and tenants.

What is the new Renters Reform Bill 2023?

The Renters (Reform) Bill is a new piece of legislation currently being debated in the UK Parliament. However, it only applies to England. It will bring in new measures surrounding assured tenancies, renting and the relationship between private landlords and tenants.

What are the new rules for renters and landlords?

Until the law is in place, the new rules of the Renters Reform Bill cannot be confirmed. We can only comment on the bill as it currently stands.

Renters Reform Bill Summary: The Overview of the Bill issued by the Government sets out the main aspects of the Renters Reform Bill. In its current form (August 2023), some of the main aims of the Renters (Reform) bill are to: 1. To put an end to ‘No Fault’, Section 21 evictions.

At present, a landlord can evict the tenants using a Section 21 Notice after the fixed term tenancy comes to an end or during a periodic tenancy (with no fixed end date). This will give tenants more security without the risk of being unexpectedly or perhaps unfairly evicted.

2. To amend and reform the possession grounds for landlords to recover their property.

This includes if the landlord wishes

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to sell the property or move in their close family. The Bill also sets out how landlords can repossess their property in cases of anti-social behaviour and repeat rent arrears of the tenant.

3. To introduce a new private renters Property Portal.

The Property Portal will be a database of residential landlords and privately rented properties in England.

This ensures landlords know their obligations and tenants can make informed decisions when entering into a tenancy.

4. Introduce a private rental ombudsman.

This ombudsman will help settle disputes between landlords and tenants fairly and help parties reach agreement without adversarial court proceedings.

5. To allow the landlord the ability to increase rents in line with market rates 6. Give the tenant greater confidence to appeal above-market rents 7. To allow tenants the right to request a pet for their property, which the landlord must consider and cannot unreasonably refuse The Bill will also amend related existing legislation so that landlords can require pet insurance to cover damage if consent is given.

8. To apply a Decent Homes Standard of properties in the private rented sector so tenants are not living in unsafe and poor-quality homes.

Is Section 21 being abolished?

At present (August 2023) a Section 21 Notice is still valid. The Renters Reform bill needs to go through several stages of Parliament before it becomes law. If the bill is passed in its present form (as of 17 May 2023) then Section 21 will be abolished and make all tenancies periodic.

This means tenants will have greater flexibility in deciding when to vacate a property. However, they will need to provide 2 months’ notice to their landlord.

Can landlords evict a tenant under the new law?

The Renters Reform Bill will set out reasonable circumstances where the landlord can evict a tenant. These include if the landlord wishes to sell their property.

These grounds will not be available in the first 6 months of the tenancy. This reflects the protection tenants currently have.

An eviction will be mandatory if the tenant has not paid rent for at least 2 months, at least 3 times, within a 3-year period.

The notice period will be increased to 4 weeks. Tenants will also need to be in 2 months’ rent arrears at time of hearing.

It will also be made illegal within the Renters Reform Bill for landlords and agents to put a ban on renting to those in receipt of benefits or with children.

How much can a landlord increase rent?

In its current form, the Renters Reform bill states landlords can increase their rent annually to be in line with market prices. These increases must be given with 2 months’ notice. Tenants will be able to challenge excessive or unfair rent increases through the First-tier Tribunal (Property Chamber). This aims to prevent ‘back door ’ evictions.

This is when rent is increased leaving the tenant no choice but to vacate the property.

Can a landlord refuse pets?

Currently, it is under the landlord’s discretion to allow a tenant to keep a pet at their property.

However, under the Renters Reform Bill, as an implied term of the assured tenancy, the tenant will have the right to request to keep pets at the property. The landlord must consider the request and can only refuse if they have a reasonable justification to do so.

Landlords may require pet insurance to cover any possible damage to their property.

When will the Renters Reform Bill become law?

There is currently no precise timescale of when the new rules will become law.

There are several stages a bill needs to go through before it comes into force/ effect. The bill is presently at second reading in the House of Commons.

It will also need to be read by the House of Lords for their consideration.

Therefore, it may be several months before the act becomes law.

Sheryl Hartigan Crane and Staples LLP

Hertfordshire Law Society Gazette

Expert Witness

Modernising the LPA Process: Powers of Attorney Act 2023 process faster, easier, and more accessible for clients . In summary, this Act aims to: 1) Speed up registration by picking-up errors earlier and allowing these to be fixed online.

Megan Latschrauner

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n 19th September 2023, the Powers of Attorney Act received Royal Assent. The aim of the new act is to modernise the process of making Lasting Powers of Attorney by using a new online system. As lawyers, how will these changes affect the way we produce LPAs, and what are the potential advantages and disadvantages for our clients?

A Lasting Power of Attorney (LPA) is ‘a legal document which allows a person to grant decision- making powers to another individual in circumstances where they lose mental capacity to make decisions for themselves.’ There are two types of LPA’s: Health and Welfare and Property and Financial Affairs.

Since these forms replaced the Enduring Power of Attorney in 2007, over six million LPAs have been registered in the UK. However, many legal professionals found the paper-based process for producing and registering LPAs to be ‘cumbersome, bureaucratic and complex’ (Carole Bielanska, co-founder of Solicitors for the Elderly). Since the pandemic, the Office of the Public Guardian has reported a significant rise in the number of LPA applications. Therefore, moving to a digital-based LPA process should be the long-awaited reform that legal professionals have wished for.

The Law Society reports that the Powers of Attorney Act 2023 will make the LPA

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Allowing errors to be fixed online should negate the need for documents to go back and forth between the Office of the Public Guardian and the applicant or solicitors’ office. Currently, elements of the process can be quite frustrating.

For example, if a number has been crossed out and rewritten, or if writing has been copied over multiple times, the application will be refused. Moving to a digitalised system should stop minor issues i.e., human error, being a problem and prevent this back-and-forth.

However, one of the biggest issues with the Office of the Public Guardian relates to staffing problems and having more applications than the staff can manage. By putting this system online, is there going to be any benefit if there are still not enough staff to process the applications?

2) Allow checks on the identity of those applying for an LPA to prevent fraud.

Through this Act, it has been promised that there will be high levels of security to ensure that identity can be thoroughly checked. The donor, attorney and certificate provider will all need to provide their ID. Consequently, the Government need to ensure that the system is resilient to cybercrime.

Currently, should you wish to draft an LPA yourself, the level of safeguarding provided is weak. The BBC 4 programme, ‘You and Yours’ investigated a matter where a woman discovered a total stranger had forged a form to be granted power of attorney over her affairs. The fraudster then used that power to try and take her home.

It is hoped that reforming the way in

which people make and register their LPA will allow the Public Guardian to strengthen protections against fraud, undue pressure, and abuse. In the Act’s second reading, the House of Lords stated that ‘the most crucial safeguard is to allow the Public Guardian to verify identity as part of the registration process, which will help to prevent the LPAs that have not legitimately been made.’

Although it is extremely positive that the Government has picked up on this being a vital part of the success of the Act, having not yet seen the detailed guidance on how the verification of identity stage will work, we cannot make an informed judgement.

3) Allow for an LPA to be made digitally.

The Act aims to target the key issues with LPA registration delays, by cutting the paper and moving to a more efficient digitalised system. The Act will also mean that electronic LPA registration forms will be accepted as evidence of an LPA registration.

One of the main concerns about moving to a digital system is that some people may not be technically competent or have access to a computer. In many cases, those who apply for LPAs are elderly or vulnerable, so the process needs to remain accessible to them. The Act confirms that paper applications will still be accepted to ensure this.

However, there needs to be clarity that paper applications will not be ‘pushed to the back of the queue’.

The Government website states that ‘extensive testing will need to be carried out to confirm the process is simple to use, works as intended and is secure.’ Hopefully, participants in the pilot schemes will be from a range of different backgrounds, with different levels of technical competency. This should give the Government an accurate representation of how the public will manage the new system.

Hertfordshire Law Society Gazette

Education

4) Widen the group of people who can make an objection to an LPA. With the current paper-based application, there is an issue of undue influence. In other words, someone with ill intentions may be pressuring a loved one into making an LPA. Whilst there are safeguards in place to prevent this, a real positive of the new Act is that it is designed to make the OPG responsible for receiving objections in registration for attorneys and named persons.

The pool of objectors has also been widened. Third parties who are not named in an LPA, such as friends and neighbours, will be able to object to registration. This is real progress to the current safeguards in place. Allowing a third-party objection can also better challenge any capacity issues. This is a massive step forward for legislation

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and hopefully will have a knockon effect with assisting the Court of Protection in cases challenging capacity.

It is also a positive step forward that the application to register an LPA is donor led and there are restrictions on disallowing attorneys from taking on the role of the applicant.

5) Allow chartered legal executives to certify copies of LPAs. Under the old legislation, only solicitors could certify LPAs. A new and welcome change under the Act is that CILEX lawyers will be able to certify LPAs. This will come into effect within the next 2 months. This is a positive step forward in the legislation and will widen the pool of professionals who can certify copies.

When will the Powers of Attorney Act (2023) come into effect?

Currently, there is no set date as to when the Act will come into effect.

This should give the Government time to adequately test the process, consult with professionals and ensure appropriate safeguards are in place.

Conclusion Overall, the changes in the Powers of Attorney Act 2023 will be wellreceived by many legal professionals.

Certainly, the current process needed reform and modernisation, especially since the pandemic. Of course, with all legislation changes, there are likely to be teething issues. Concerns regarding safeguarding, cybercrime, efficiency, and access will all need to be addressed.

Megan Latschrauner Crane and Staples LLP

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Expert Witness

Mental Health & Domestic Abuse I n recent years, there has been an increase in domestic violence in the UK. Its debatable whether this is an actual increase, or whether domestic abuse is just being reported more.

Generally speaking, domestic abuse is a crime that is not often reported straight away, especially in cases of coercive & controlling behaviour.

Many of those experiencing domestic abuse eventually see this as the norm in a domestic abuse relationship, and decline to report the abuse, as the abuser has convinced them that noone will believe their allegations, or that this is merely the norm in a relationship. This, obviously, would have a declining affect on the victim’s mental health. They are stuck in a relationship that is abusive, often cut off from family and friends, with noone to share their experience with, other than the abuser themselves. This loneliness can be debilitating.

When the abuse is finally reported, many of these cases do not result in a conviction of the perpetrator of abuse.1 In the year ending March 2018, the National Crime Survey estimated 2.0 million adults aged 16 to 59 years experienced domestic abuse in the last year (1.3 million women, 695,000 men).

The police recorded 599,549 domestic abuse-related crimes in the year ending March 2018. This was an increase of 23% from the previous year. The percentage of convictions secured for domestic abuse-related prosecutions is at its highest level since the year ending March 2010. In the year ending March 2018, 76% of prosecutions resulted in a conviction.2 This, inevitably, would lead to more victims experiencing mental health disorders.

As early as 2004, it was recognised by Professor Walby that domestic abuse had a negative impact on mental health, with the cost of the impact of domestic violence on mental health being described as “significant.”3 Domestic violence was attributed to several kinds of mental disorder, including posttraumatic stress disorder (PTSD) and

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attempted and completed suicide. The victim then becomes part of a vicious circle of abuse. A study in 2012 on experiences of domestic violence and mental disorders show that women with depressive disorders are more likely to experience adult lifetime partner violence, compared to women without mental disorders. The study concluded that “There is a high prevalence and increased likelihood of being a victim of domestic violence in men and women across all diagnostic categories, compared to people without disorders.”4 So it stands to reason, that we have victims of domestic abuse who develop mental health disorders as a result of domestic abuse, becoming more likely to being a victim of domestic violence again in the future.

On a more positive note, it appears that victims of domestic abuse are seeking medical help from their GP more frequently than in recent years. Victims of domestic violence will visit their GP significantly more often, which provides opportunities for professionals to support this vulnerable patient group.5 This emphasises the necessity of GPs and other medical professionals to readily recognise the effect of domestic abuse on mental health, and provide the correct support.

Unfortunately, there still seems to be a stigma attached to mental health disorders. Too often victims of domestic abuse suffering from mental health disorders not getting the treatment they do readily deserve because their abuser uses their mental health against them. Abusers often exploit this, convincing their victims that no-one will understand them, or that they would not be believed if they sought help for their mental health. In extreme cases, abusers may withhold medication from their victims, preventing them from treating their mental health issues to further emotionally abuse their victims.

On the opposite end of the scale, abusers attempt to convince their victims that they have mental health issues, when in reality they do not. The abuser will

convince their victim that their defiance of their demands or refusal to accept the abuse as day-to-day means they must have something mentally wrong with them. This leads to the abuser using this against the victim, to convince the victim that their experience of domestic abuse is “all in their head” or they are overreacting as a result of their “mental illness.”

Given the rise in victims seeking help from their GP for their mental health as a result of domestic abuse, it is unfortunate that GPs and medical professionals receive little training on domestic abuse. A study in 2022 undertaken by Rebecca Cox and Gene Feder showed that out of 70 GP postgraduate training groups, 44.2% of them did not offer domestic abuse education.6 Training is not offered as mandatory and is often not requested by trainees, with trainees favouring more purely clinical topics, despite the growing awareness of domestic abuse.

Of those that did undertake training, 47.4% of trainees disagreed that the training was adequate, and 36.8% strongly disagreed.7 In total, that is 84.2% of trainees agreeing that training in domestic abuse is not adequate. The conclusion of the study was “Our survey shows that the provision of DA education in UK postgraduate GP training is absent in almost half the programmes and varies in length, content and quality, with a high proportion of respondents rating it inadequate.”8 Given that training is very rarely undertaken, with the training that is undertaken being strongly inadequate, it brings into question whether GPs are equipped to fully understand the effects of domestic abuse on victims.

With the increasing number of victims coming forward to report domestic abuse, it stands to reason that more victims will be seeking help for mental health disorders as a result of that domestic abuse. Unfortunately, GPs are in a difficult situation; those that elect to receive training in domestic abuse do not receive adequate training, with the training not being seen as important

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enough to be mandatory. Given the rise in domestic abuse in recent years, it would greatly assist if this training was mandatory in order to properly assist victims medically when they finally build up the courage to report the abuse they have suffered.

With domestic abuse training among medical professionals being inadequate and not mandatory, it is no surprise that victims of domestic abuse decline to seek medical help straight away.

Domestic abuse is increasing, and it will only continue to increase if we do not address the issues that are fuelling the fire. It stands to reason that adequate care and support should be provided in relation to mental health as a result of domestic abuse, which can be achieved if training opportunities are increased, along with an increase in the quality of the training.

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Rachel Amey-Drew Trainee Solicitor National Legal Service Citations 1 https://www.ons.gov.uk/ peoplepopulationandcommunity/ crimeandjustice/bulletins/ domesticabuseinenglandandwales/ yearendingmarch2018 https://www.ons.gov.uk/ peoplepopulationandcommunity/ crimeandjustice/bulletins/ domesticabuseinenglandandwales/ yearendingmarch2018

2

Walby, S. (2004). The Cost of Domestic Violence. Research Summary: Women & Equality Unit.

3

Trevillion, K., Oram, S., Feder, G., & Howard, L.M. (2012). Experiences of

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domestic violence and mental disorders: A systematic review and meta-analysis.

Hunzelar, C., Krumpholtz, Y., Schlack, R., Weltermann, B. (2023) More GP Consultations by Violence Victims: Results from the Representative German DEGS1 Study

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Rebecca Cox & Gene Feder (2022) Domestic abuse education in UK GP training schemes: cross-sectional study, Education for Primary Care

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7 Rebecca Cox & Gene Feder (2022) Domestic abuse education in UK GP training schemes: cross-sectional study, Education for Primary Care

Rebecca Cox & Gene Feder (2022) Domestic abuse education in UK GP training schemes: cross-sectional study, Education for Primary Care

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Charity

Understanding charity beneficiaries

by Remember A Charity W

hy should we consider gifts in Wills and how we communicate with charity beneficiaries? Because legacy income for the charity sector is significant.

Here at Remember A Charity, we know that the continued support of legal professionals is a key reason why charity income from gifts in Wills is increasing - with this form of giving being up 43% in the last decade*. Through consistently making clients aware of the option to give in this way, and by showing your support for this form of charitable giving through joining initiatives such as our Campaign Supporter scheme and other Will-writing schemes, Law Society members are playing a vital role in helping public awareness and appetite for gifts in Wills to continue to grow.

Whilst both keen to ensure client wishes are upheld, we know that charities and the legal sector often come at estate administration from a very different perspective. Understanding why this might be was the subject of our recent Campaign Supporter webinar on how to communicate effectively with charity beneficiaries about gifts in Wills. Here’s some of our top tips and insights: Charities operate under a legal and governance framework Charities are required to navigate a complex maze of red tape in order to satisfy the requirements of both the Charity Commission and of their auditors, which mean that they have a moral and legal duty to ensure funds are claimed and accounted for in a timely way.

This includes maximising the value of assets disposed of on their behalf, making best use of tax exemptions (both in relation to Capital Gains Tax and Inheritance Tax on the estate), and the need to demonstrate that they have done so to their auditors.

With gifts in Wills forming around significant part of their income, charity auditors place a huge emphasis on ensuring a strong audit trail, so charities may come to you with lots of questions. Often, it’s to complete a form or reassure trustees and auditors around due diligence so be open and receptive to their needs Alert charities to any potential issues Most probate cases run smoothly, but a small proportion will encounter some kind of issue – from disputes over

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the validity of the Will, to delays and complexities associated with the selling of properties. For a large charity this can mean dealing with hundreds of difficult cases each year. Alerting them early to any potential challenges means you can work collaboratively to find a resolution, saving you time and helping to prevent a frustrating to-and-fro of correspondence.

Keeping an open dialogue, we’d encourage you as solicitors and Will-writers to keep charities in the loop wherever possible, giving timely updates on the estate, and the likely next steps.

Timing is crucial, particularly when it comes to particularly sizeable gifts, which can have a transformative impact on the charity and therefore could influence key investment decisions. Understanding when funds are likely to arrive helps charities manage cashflow and improve their forecasting, enabling them to plan ahead and budget for the future - a key factor for charities looking to maximise their efficiency.

Some gifts will be more difficult for charities to accept Charities are grateful for all gifts, no matter their size and shape. However, some gifts will be more difficult than others for charities to accept. For example, they may be too hard to dispose of or selling/ maintaining them will in fact cost the charity more than the gift is worth. For example, an ivory statue could cause problems for a charity with either legal issues or going against their ethical guidelines (depending on the age of the item). Similarly, particularly valuable items such as a violin may need to be accompanied by care guidelines and may require funding to enable the charity to properly maintain them. And restrictive guidelines asking charities to use funds for a specific purpose, which the charity cannot meet when the Will comes into effect decades later, can also prove challenging.

So, if a charity is unable to accept a gift in that form or requests an opportunity to discuss or explore alternative options, this is unlikely to be that they are don’t want or need the funds - but simply that they are keen to find a way forward that meets their own requirements, whilst still fulfilling the donor’s wishes.

Charity staff have varying levels of legal understanding Many charity staff within financial or legacy

administration teams you deal with will be qualified and well versed in the process of dealing with charitable estates, but this won’t always apply - particularly when dealing with charities that are new to gifts in Wills and haven’t been named as beneficiaries before.

It is therefore best to communicate by email wherever possible, and to be patient and allow sufficient time when it comes to any required decision making on the part of the charity, as the individual you are speaking with may need to double check with colleagues or seek other advice before proceeding. Try to keep the language in all correspondence easy to follow, minimise jargon, and manage expectations in case they are unfamiliar with the process.

Network locally with charities A positive relationship can be a win-win for business development – with potential opportunities such as the chance to ask for your details to be featured in digital marketing collateral, or to raise your profile by offering support at a Q&A session for the charity’s staff and/or supporters. Charities will often seek out corporate support, and in turn this can offer you a great opportunity to build relationships and attract more clients; after all, charity staff may not have written a Will yet themselves.

With a mission to normalise giving to charity from your Will, our free Campaign Supporter scheme gives Will-writers access to resources and exclusive digital marketing assets to help you start up those all-important legacy conversations.

All Campaign Supporters are also listed in our searchable directory for those looking for help in writing their Wills.

To find out more about our Campaign Supporter scheme for solicitors and Willwriters, visit: www.rememberacharity. org.uk/advisers You can also join our dedicated LinkedIn Group for Professional Advisers, to network with likeminded legal professionals and keep up to date with all the latest developments when it comes to gifts in Wills.

Ref: *Remember A Charity Consumer Benchmarking Study 2022, OKO

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Reviews

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 A practitioner’s guide to inheritance act claims Fourth Edition

By Nasreen Pearce ISBN 978 0 85490 298 9 Wildy, Simmonds, and Hill Publishing www.wildy.com A tax we should abolish? Well -- not yet.

Meantime, practitioners in this area should read the new edition of this guide Lawyers dealing with inheritance tax issues (and they are out there aplenty) would be wise to acquire this long established and eminently useful title -- now in a new and extensively updated fourth edition from Wildy, Simmonds, and Hill.

The author -- Her Honour, Nasreen Peace -- is a retired judge, well known to the Bar and Wildy, and particularly expert in this challenging, controversial area of law.

The guide therefore offers practitioners a detailed and authoritative guide to the provisions of the Inheritance (Provisions for Family and Dependence) Act 1975, with reference to subsequent and recent legislation which is discussed and analysed in detail.

The Act itself, as the author points out ‘has been amended over the years to meet the needs of an ever-changing global society,’ notably the now varied forms of family and the extension of the non-traditional family -- a prime example of this being same sex relationships. Usefully, the book provides a step-by-step guide to the preparation of cases under the Act and the practice and procedure required to process an application through the courts.

The book deals with every conceivable aspect of this complicated area of law which, to the advantage of the practitioner, delivers informed comment, as well as fascinating reading, supported throughout by a wealth of references to cases. Also contained in this updated edition are detailed discussions of a range of issues that have relatively recently emerged: crypto-currencies and crypto-assets, for

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example and the increasing importance of -- and often the necessity for -- negotiation and mediation.

With its detailed index and table of contents -- and of course, numbered paragraphs throughout -- the book is easily navigable as are all Wildy guides. Note the tables of statutory instruments, guides, codes of practice and international materials. All but one of its thirteen chapters feature an introduction and the chapters themselves cover every relevant aspect of this minutely detailed legal landscape which, more often than not, demands an erudite, precise, and yet sensitive approach to sensitive and often complicated issues, such as -- for example -- domicile, time limits, eligibility, grounds for making a claim and so forth. Note too, the three appendices which include legislation, precedents, and practice guidance.

Comprehensive and practical, this authoritative legal text has long been regarded as an essential purchase for practitioners involved in this particularly challenging area of law.

The date of publication of this hardback fourth edition from Wildy is cited as 7th July 2023.

Negotiating Technology Contracts 2nd edition Authors: Kit Burden, Mark O’Connor, and Duncan Pithouse

from DLA Piper -- have now collaborated in producing its new second edition from Globe Law and Business. Their stated aim is to ‘help you navigate safely and successfully through the negotiation maze.’ And a fair bit of a maze it is too, considering the ubiquity and complexity of the subject matter.

The overall aim is to help negotiators gain a full appreciation of the nature of the underlying deal and the true commercial needs of the contracting parties involved.

Compliance with the relevant laws and regulations is of course a key issue, particularly the ramifications of changes to the law and also the key question of which jurisdictions are being referred to.

Across its twenty-four chapters, the book delivers considered and informed advice on a wealth of other key issues, including such relatively recent developments as cloud-based services and the impact of artificial intelligence (AI) on contract provisions. The book is reassuringly practical in that it tells you what you need to know and what you need to do, as you approach that formidable negotiating table. Chapter topics range from due diligence to service provision, to warranties and of course much more.

Top Professional Advice On The Subtle And Profitable Art Of Coping With Technology Contracts -- Now In A Second Edition

Helpfully, there is useful commentary on such issues as, for example, intellectual property and cloud services, plus comment on the different types of technology contracts and the various approaches you are likely to encounter in Europe, the UK and the US. The advantage here is that the various types of technology contracts are carefully examined -- and also note the final chapter on handling -- or coping with -the dreaded eventualities of managing contract disputes.

As technological change looms ever larger, faster, and increasingly complex, this book -- now in a new edition -- becomes all the more essential for practitioners tasked with the ups and downs and ins and outs of negotiating technology contracts. To say that they’re difficult to negotiate is something of an understatement.

As technology progresses ever faster and further into an era in which AI, for example, will increasingly dominate, this book provides the beleaguered negotiator with essential and much needed advice and guidance. No one involved in the complexities of this fraught and fast-moving area of law should be without it.

All the better then, that the three authors of this well-established legal text -- all

The date of publication of this hardback second edition is cited as August 2023.

ISBN 978 1 78742 979 6 Globe Law And Business www.globelawandbusiness.com

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Expert Witness

Expert Witness Institute urges removal of new intermediate track rule in civil claims cases

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he EWI has written to the Civil Procedure Rules Committee calling for the removal of a rule in the new intermediate track for civil claims that would limit expert reports to 20 pages.

Rule 28.14 (3), set to come into force on October 1st 2023, includes a statement that unless the court orders otherwise, “any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report.”

A limit on report length would be a significant change for Expert Witnesses, with the potential to impact the work of experts and the quality of expert evidence, too.

What is the intermediate track?

From October 1st, civil claims cases between £25,000 and £100,000 can be allocated to a new intermediate track.

It’s been introduced in an attempt to create certainty of legal costs that are proportionate across a wider range of civil claims.

Rule 28.14 (3), introduced without any consultation with the legal and expert witness community, was added to Part 28 amendments rather than making an amendment to Part 35, which would have signalled a significant change for experts. As such, its introduction was only recently highlighted to EWI and our membership.

EWI letter to the Civil Procedure Rules Committee Our letter to the Civil Procedure Rules Committee strongly urges the removal of 28.14 (3) from the draft amendments ahead of the new track coming into effect.

In the letter, EWI CEO Simon BerneyEdwards writes: “It can only be assumed that the logic taken by the committee is that cases between £25k and £100k are less

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complex and therefore Expert Evidence can and should be restricted in order to save costs.

If this is indeed the logic used, we would strongly urge you to reconsider.”

35 and The Guidance for the Instruction of Experts in Civil Claims, which may not be achievable with a limit on report page numbers.

Elsewhere in the letter, we explained the reason for reports exceeding 20 pages:

Expert opinion If there are numerous facts on which an expert needs to base their opinion, then the report must be able to accommodate them.

“Reports tend to be over 20 pages because it is important for experts to include logical reasoning, refer to other opinions, and incorporate summary paragraphs.

All of this is in place to support the court in decision-making. The introduction of this arbitrary page limit will compromise the report and the ability of the Judge to assess the technical aspects of a case. Indeed, in advance of a Judge’s involvement, it is good, well-structured expert evidence that assists the lawyers in settling cases avoiding the need for trials.”

Key issues presented by the new rule Using feedback from highly-experienced EWI members from various professions, our letter outlines a number of issues presented by the new rule, including: Cases with a claim value of less than £100,000 are not always straight forward Particularly in Medico-Legal, Construction and Forensic Accounting cases. Plus, at early stages in a claim it’s not always possible to calculate the value until after various expert witness reports have been obtained.

Restricting the number of pages to 20 is arbitrary, with no clarity on what to omit.

Different types of reports will have different requirements, which may vary according to profession, whether opinion is required on breach or quantum, and whether there are differences in factual or expert evidence to address.

Structure and necessary inclusions Expert witnesses are required to meet their full obligations under CPR35, PD

Unintended consequences Limiting the report length may mean information is removed, leading to a greater number of queries and a diminishing quality in the presentation of reports.

Our letters also suggests that, if the main requirement is to reduce the costs of expert evidence, the instruction a of a Single Joint Expert should be considered: a cost-effective option in lower value cases.

The letter concludes: “In our view, expert witnesses should be well trained in their duties, must know that they should work efficiently and that their reports should be concise and clear – no longer than is necessary to assist the lawyers and the Court.

But it is for experts to determine the length of the report is each case, based on their instructions, their expertise and scope of opinion, and the details of the case.

We believe that the introduction of this rule will compromise the quality of expert evidence and good decision making.

Ultimately, this will have an impact on the administration of Justice, the support provided to the courts, and the outcomes for those involved in litigation.”

We eagerly await a response from the Civil Procedure Rules Committee and will update our members in due course.

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Expert Witness

The use of DNA testing in legal practice child or paternity, where we are trying to prove that a tested male (the alleged father) is, or is not, the true biological father of a tested child.

There are also tests for other biological relationships such as for siblings, twins, grandparents and aunts/uncles. These tests are used for resolving family disputes, immigration status and of course many instances of sensitive child circumstances involving local authorities.

Dr Neil Sullivan “Part of our DNA” has become a catchphrase throughout languages worldwide and it refers to a characteristic that is innately part of something. Obviously, this is often misused but the phrase does convey a key principle, that all living things contain a molecule which codes for the essence of life, in whatever species, plant, animal or microbe.

This molecule, deoxyribonucleic acid (DNA) and the technology that has developed around it, is now used in a host of applications - one of these, the determination of biological relationships, is the subject of today’s article.

Our objective today is to provide a primer for the use of DNA in legal situations, particularly family law.

It is the case that technology, ethics, law and society sometimes struggle to keep up with each other. This is particularly so with DNA technology, where we grapple with issues such as consent, parental responsibility, multiple parent babies, paternity fraud, sperm donation, postmortem testing, surrogacy, immigration to the UK and pre-natal parentage testing.

The majority of DNA testing is to determine the biological father of a

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DNA is a chemical string of code which is unique to an individual. It is contained in nearly all the cells of your body (mature red blood cells are the exception) and is inherited half from the mother and half from the father.

We examine this code in several ways to look at individuals and population characteristics, diseases (prediction and diagnosis), ancestry, to identify individuals in forensic cases and in our case, to decipher human relationships.

The DNA is extracted from a few cells taken from the buccal cavity, a painless and non-invasive procedure which uses a cotton swab rubbed around the cheek of the mouth. We can use nearly any tissue but for controlled sample collection for legal testing, we always recommend the buccal swab route.

In an identity test, the DNA is then examined for regions of similarity between the tested persons. In the case of a paternity test, the DNA test report will then confirm that the tested man is (usually with a certainty in excess of 99.999%) or is not the biological father of the tested child, which is given with 100% certainty. These results are termed either an inclusion (he is the biological father) or an exclusion (he is not the biological father).

There are two types of test in general use, with the common parlance of a “legal” or “accredited” test, or a “peace of mind/personal information” DNA test. This is an important distinction, because only a legal/accredited test

may be used for a legal purpose, such as changing birth certificate.

In an accredited test, the appointed company will take control of the entire sampling and identity verification process, so that there is in effect a chain of custody of the sample from the subject to the laboratory.

In a “peace of mind” test, the individuals are allowed to take the samples themselves and then return them to the laboratories; of course, in such cases we then rely on the participants to take the sample from the correct individual. This is unsuitable for any legal purpose.

A common issue relates to consent and who has Parental Responsibility for the child. For DNA testing we must have “appropriate and qualifying” consent for each sample to be tested.

Consent is required from each adult party that is to be tested and if the test involves a child under 16, then we must also have consent from a person with Parental Responsibility for that child.

This is generally the mother, but may be the father under certain circumstances or indeed some other body (sometimes jointly shared with the parents), such as the local authority.

We are often asked about the participation of the mother in the process, which is in fact required for a legal/accredited test. With the mother’s DNA analysed in the test, in the case of an inclusion the percentage probability of paternity is generally much higher.

This is because the child’s DNA is inherited half from mum and half from father…but we don’t know which half!

So by identifying the mum’s DNA, we can then see that the remaining DNA must come from the father.

Sometimes, mum or alleged father(s) are not available for sampling and we then seek to obtain a DNA sample from

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other close family members so that we can attempt to establish a presumed parentage via DNA from siblings, grandparents or uncles and aunties.

While the figures for relatedness will not be as strong as for a direct paternity test, we can often gain useful probabilities which provide helpful supporting data when taken together with other evidence. Cousins are biologically too far removed to be helpful in this process.

These are all of course somewhat complex issues and if you require more detail please get in touch or go to our website for more information. Details can be found below.

About the author: Neil Sullivan, BSc, MBA (DIC), LLM, PhD is General Manager, of Complement Genomics Ltd (trading as dadcheck®gold).

The latter is a company accredited by the Ministry of Justice as “A body that may carry out parentage tests as directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969” and by virtue of directly running laboratory services which meet the stringent and internationally recognised ISO/IEC 17025 standard.

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FINDING YOUR VOICE IN TODAYS DIGITAL LANDSCAPE To advertise, call us on 0151 203 0440, or email: simon@baskerville-e.media

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Law Society News

Access to justice undermined due to lacklustre online court services

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ew research published by the Law Society of England and Wales has found that the government’s digitisation of the court system is adding to the delays plaguing the civil court system and undermining people’s access to justice when they need it most.

A survey of solicitors who have used the damages claims, public family law and probate portals has uncovered the extent of technical issues with the system and the impact of these on the delivery of justice.* “For seven years, HM Courts and Tribunals Service (HMCTS) has been modernising the justice system to make it more straightforward, accessible and efficient. Its court reform programme is designed to improve courts and tribunals for court users,” said Law Society president Nick Emmerson.

“It has had many successes in this time, such as the digital uptake of all probate applications increasing to 80% by December 2022 and more than 70% of all courtrooms able to allow parties to join hearings remotely.

“However, it is important for HMCTS to learn from the problems in its systems, as well as its successes.

“Our findings show that more than half of solicitors surveyed do not believe the portals are efficient and effective in delivering justice.

“We know that modernisation is a work in progress, but this is having a real impact on clients, especially as these portals are often used at an already challenging and difficult time, such as managing the estate of a deceased loved one, handling a child protection matter or getting help with an accident that wasn’t their fault.

“The increased delays and associated uncertainty these portals have created are causing additional stress.”

Three in five (62%) respondents reported delays in court proceedings

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as a result of the portals, which had emotionally impacted their clients. A third (34%) reported increased costs have been passed on to clients.

on board as it continues its court reform programme.”

Across the three portals contributing factors to the delays included timeliness, communication and technical issues along with the lack of HMCTS staff resource to deal with problems.

include: • improved and consistent communication for those using online systems to help ease the backlogs by reducing demand on the court service • a user-led design and development process involving the public, legal professionals and the advice sector •a central resource containing information and guidance for users of each online court system • software to improve communication between online court systems and solicitors’ case management systems • robust data collection and transparency will aid continuous improvement of current and future online court systems

Probate (75%), family public law (66%) and damages claims (46%) portal users reported delays in court proceedings and the administration of justice.** The impact on clients was evident. More than half (54%) of probate users said the online process is taking longer than the paper-based system, three in 10 (29%) experienced poor response times and limited staff knowledge, with nearly one in five (18%) stating this meant there were delays in issuing grants.

Half (50%) of damages claims users reported that delays were impacting on clients and a quarter (24%) said the process was burdensome.

Seven in 10 (70%) users of the family public law portal reported technical errors and frequent breakdowns and four in five (80%) reported lack of timeliness of technical support.

Nick Emmerson added: “Some of these issues have come about because there simply wasn’t sufficient engagement with the solicitor profession, the advice sector and members of the public when these systems were being designed.

“Well designed and thoroughly tested online systems have the potential to increase access, drive efficiency and streamline case management.

“An efficient court system ensures streamlined case management, fair and transparent proceedings and ultimately, timely access to justice.

“We urge government to take our proposals

The Law Society’s recommendations

Notes * 722 solicitors provided responses across three surveys focusing on HMCTS’ online services including the damages claims portal, the family public law portal and the probate portal. ** Respondents’ thoughts on the online portals included: Probate: “We have gone from a system that cost £45 and took two weeks to a system that costs £273 and takes 16 weeks! How is this progress?”

Family public law: “It has caused problems for the business leaving clients wondering if the problems are due to our ability to use the portal. As usual the government wants to save money and leave the users with the problem of working with new technology before it is set up.”

Damages claims: “More training needs to be provided to staff, more guidance needs to be provided for users and a general better understanding of what is expected to be provided at these early stages would be better being provided before the product is expanded.”

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Advertorial

The Importance of Family Tree Verification: Safeguarding distribution of estates I

n France and Germany, probate research and the verification of intestate estates using professional firms Danny Curran is considered vital, on a par with the legal profession. Yet in the UK, we struggle to place probate genealogy firms fairly and squarely within the estate administration process.

The industry is unregulated, which is not necessarily a problem and should not deter solicitors. My firm adheres to voluntary codes and regulatory regimes that can provide reassurance. The public must feel confident that the probate research firm is not operating a scam. Think of those bogus emails where the sender asks for bank account details in return for millions of pounds for instance.

Reputation is a good starting point, but make sure you are dealing with a professional company. Firms can appear to list ‘offices’ around the world by placing keywords on their website and can use an impressive serviced ‘office’ address in a large city like London.

Over-reliance on family testimony Another issue I see in the UK probate research industry is the reliance by the solicitor, administrator or executor on family testimony, without independent verification. Some solicitors accept the word of family members on who is or isn’t related to the deceased and by what degree of kinship. This can lead to incorrect estate distribution.

I once worked on an intestate estate of around £400k, where the solicitor wanted verification that their client was the sole heir to the estate. The client was an elderly lady who claimed to be her late brother’s sole surviving next of kin.

However, we discovered she’d disowned her nephew many years earlier and didn’t recognise him as part of her family. His ‘crime’ was to grow a beard to his waist and wander around his housing estate shouting and swearing. Once we had identified and located him, we established he had suffered from a mental illness for many years. In this case, half the estate rightly passed to him.

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Children Forgotten I have lost count of the children, siblings and half-siblings who have been overlooked or forgotten by solicitor clients referring cases to us. It’s not deliberate.

Families lose touch, large families forget how many relatives they have, children are born out of wedlock and to single parents and, since 1927, adoptive families can legally inherit.

It is an excellent idea for the solicitor to interview their client before engaging a probate research firm, to make sure all relatives are accounted for.

There are four basic fee models available from most professional probate research firms. Freedom of choice is imperative to cover a variety of situations.

The four main options are: 1. contingency fees, where a beneficiary signs a percentage-based agreement with the probate research firm 2. an estate / trust contingency fee, where the executor agrees on a percentagebased fee from a named beneficiary’s entitlement 3. a budget fee paid by the estate 4. a fixed fee paid by the estate.

The basic model Firms may name these fees differently, but most firms offer this basic model.

Contingency fees are the most popular option. They are seen as fairer in many circumstances--payable only on a successful distribution of an estate. An agreed budget or a fixed fee at the expense of the estate may be more appropriate, depending on the circumstances.

Probate research firms can usually offer budget fees payable by the general estate or contingency fees where the fee is agreed directly with a beneficiary or the executor and expressed as a percentage of the sum they receive.

There are different situations where one fee option may be more appropriate.

For example, if there is no grant or no known next of kin to extract a grant, a fee payable by the general estate cannot be used, as there is nobody with legal authority to agree to such a fee.

Fixed fees ‘unfair’ Budget or fixed fees paid by the general estate diminish the whole estate value, which any next of kin who knew the deceased often sees as unfair.

If the probate research firm works to a contingency fee and fails to find any further entitled heirs, it usually receives nothing for its work. Still, the report can secure the vital indemnity insurance policy needed to safeguard the administrator.

There are dangers of being ‘hooked’ into using a firm based on a very low initial quote. Cheap does not necessarily mean better. It is often true that you get what you pay for, and this is not an area where it pays to cut corners.

Importance of insurance An insurance policy against missing or unknown beneficiary claims is crucial.

Sometimes, administrators seem confident they have identified all next of kin and consider taking out insurance cover against any further claims a waste of money.

However, there are an increasing number of claims where no traditional documentation, such as birth certificates exists, and DNA evidence is also being used more than ever before.

If there is no formal birth or adoption certificate, a research firm will likely be unable to find ‘undocumented’ claimants. Insurers are unlikely to accept a genealogist’s report as evidence unless you use a recognised firm of probate researchers.

Using a recognised firm will often mean an insurance policy is instantly approved, saving you many hours of time. My preference would be to make insurance a statutory requirement on all £15k-plus estates or where a small estate indemnity is not being used. Things may go wrong, and the important thing is to be covered.

For more information on Finders International’s family tree verification service, please visit the website www. findersinternational.co.uk. Alternatively, you can contact Finders via email: quotes@ findersinternational.co.uk or telephone: +44 (0) 20 7490 4935.

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Top Tips - Accounting Expert Witnesses My top tips for instructing solicitors when considering engaging an accounting expert witness 1. When to engage your expert.

In my experience it can be helpful to engage your expert early in the dispute. Often I am engaged in the first instance to provide a preliminary view on a matter. The preliminary view is typically given in a brief written report with financial analysis but it is not in a court compliant form at this stage. This report helps Fiona Hotston-Moore the solicitor and legal counsel advise the client on the strengths and weaknesses of the case. It is typically prepared ahead of mediation and may be disclosed in mediation. A preliminary report can normally be provided quicker than the full court compliant report and will then form the basis of the court report.

It is often useful to have the expert attend part of the mediation to assist the parties and mediator.

In some instances the expert is approached by both parties so clearly it is advisable to approach and engage your choice of expert as soon as possible.

It may be tempting to instruct your expert late in the process to minimise costs but bear in mind that experts will have existing case obligations and may not be willing to take an instruction at short notice.

2. How can your client assist us?

Typically, we will receive a helpful summary of the matter in dispute and some detail on the companies involved. As forensic accountants we usually have experience in a breadth of sectors.

We will undertake our own research on the sector. This research will look at how the sector has fared historically and will include consideration of strengths, weaknesses, opportunities and threats. We will look at published data on companies in the sector including any transactions. However, your client will have a deep knowledge of the sector and could assist the expert at the start of the engagement in highlighting relevant sources of industry data, background information and identifying competitors.

solicitors are far more willing to appoint an expert from another location and to use video conferencing to avoid the costs of physical meetings. An expert working within a team will have assistants who can complete some of the financial analysis at an appropriate hourly rate.

4. Should I get a second expert opinion?

In matrimonial cases, and often in shareholder disputes, the expert is appointed as a single joint expert, instructed by all parties to give an independent opinion. In such instances a ‘shadow adviser’ may assist one party in framing the questions they wish to ask on the report of the single joint expert. Typically, there is ten days to ask the questions, so it is important to line up your shadow adviser ahead of receipt of the report. The shadow adviser can also give an opinion on the report to assist the party in deciding if they wish to ask the court to allow a party expert to be appointed if they do not accept the conclusions of the single joint expert report.

Obviously be aware of the court’s view on ‘shopping around’ for an expert witness.

5. Consider what areas of accounting experience your financial expert will need.

Accounting is a wide subject area and accountants work in many different roles and sectors. You will need to identify an accountant who is experienced in acting as an expert witness but who also has the relevant expertise. For example, if the case is a professional negligence claim against an auditor or tax adviser you will need to identify a professional who has been in professional practice as an auditor or tax adviser. If the instruction requires an opinion on the valuation of a company, you will need an expert with experience in valuing businesses.

Fiona Hotston-Moore FRP Advisory

3. How can I ensure costs are proportionate?

Consider whether you need a financial expert from a ‘top four’ firm of accountants or whether an expert from an independent or regional firm might be suitable. Since the pandemic, instructing

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