Herts Law Society Gazette issue 37 by EPC Studio

issue 37 Winter 2018

Hertfordshire Law Society Gazette

We welcome Attia Hussain, Our new President...

... and Vice President Judith Gower Also this issue: • An interview with Ann Charlton of LawCare • Freedom of Information and Environmental Information • Annual Bar & Young Bar Conference 2017, and much more...

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Contents

Hertfordshire Law Society Gazette

Contents issue 37 Winter 2018

Council Members for 2017

Financial concerns and Charity

2017 EWI Conference Report

From the President

Diversity in the Legal Profession

Evolution of Data Protection Law

Your New Vice President

Notice of Appointment

Annual Bar & Young Bar Conference

FOI & Environmental Information

Book Review

New Solicitor Silks Appointed

Ann Charlton of LawCare

Outsourcing your payroll

The Folly & The Hugh Fees...

Improving the home buying process

Flood Due Diligence

10 HJLD

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DISCLAIMER: the views expressed by the writers in this magazine are not necessarily those of the Hertfordshire Law Society

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Council Listings

Council Members 2018 President Attia Hussain Crane & Staples (Welwyn Garden City) Family Vice President Judith Gower Hertfordshire County Council (Hertford) Local Government Hon Secretary and Treasurer Claire Sharp Debenhams Ottaway (St Albans) Private Client Immediate Past President Stephen Halloran Lawtons Solicitors (Hatfield) Crime

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Members Robert Bedford Machins Solicitors LLP (Luton) Employment Nicholas Belcher Nockolds Solicitors Limited (Bishop's Stortford) Agricultural and Liquor & Gaming Licensing Marilyn Bell SA Law (St Albans) Family David Bird Crane & Staples (Welwyn Garden City) Private Client & Trusts

Penny Carey University of Hertfordshire (Hatfield) Academic Jeremy Chandler-Smith JCS Solicitors (Codicote) Sole Practitioner Steven Hamilton Taylor Walton LLP (Harpenden) Private Client

(From January 2018 until 31 December 2018) The Law Society Relationship Manager â&#x20AC;&#x201C; East

Neil Johnson HRJ Foreman Laws (Hitchin) Civil Litigation

Jack Dunkley

Gary Smith Nockolds Solicitors Limited (Bishop's Stortford) Employment

Parliamentary Liaison Officer Judith Gower

Amanda Thurston Curwens (Hoddesdon) Family National Council Member Paul Davies Hamilton Davies (Stevenage) Employment, Family and Litigation

Hertfordshire Law Society Gazette

Editorial

From the new President... I am pleased and honoured to have been elected as President of the Hertfordshire Law Society for 2018. I hope, along with the Council Members, to serve you on a local and national level. I would like to thank the outgoing President Stephen Halloran on behalf of the Society. Stephen’s dedication and commitment to the Society is commendable and admirable. I very much look forward to working with Judith Gower, who has kindly agreed to serve as Vice-President, together with Claire Sharp the Honorary Treasurer and Secretary. Despite the many challenges we face in our profession to our business structures, the disassembling of Legal Aid, and fighting for access to justice, we should be proud of what we do and the services we provide to often the most vulnerable people in society. We can as a Society ill afford to be complacent and we need to continue to make strides in our profession and seek to achieve equality and diversity as a Society. The Law Society reported in 2017 that only 25% of partners are women when women represent nearly 50% of all solicitors, I am certain we can do better. I am very much looking forward to engaging with members of the profession this year and as a Society to arrange training events for our existing members and encourage new members to join and participate. It would be wonderful to meet as many of you as possible and hear your views. I would like to mention that we are fortunate in the support we have from the University of Hertfordshire and the Law School and give thanks to the Dean of the Law School, Penny Carey for her continued support and providing us with facilities for meetings. On behalf of the Council, I wish you all a wonderful 2018. Attia Hussain President, Hertfordshire Law Society

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Editorial Featured Article

Your New Vice President – Judith Gower Our other interest outside work is classic sports cars. Nothing fancy just a 1977 Spitfire 1500 and one of the very first Mazda MX5s made for the UK market.

am a solicitor working for Hertfordshire County Council. I came to law later in life as I started out working in IT. I then took redundancy and decided that I would do a law degree and then went on to the Legal; Practice Course, a training contract and an LLM! Not only do I work in Hertfordshire but I live here as well, although those of you who know me will realise I was not born here but in Lancashire. My parents came from London and Kent and successfully passed border control from the south to live there when they got married.

I am married with 2 adult daughters and an “adopted” French daughter who is married with twin boys. My main interest outside of work and family is glass in all its decorative forms. I am the secretary of the Glass Association and a member (with my husband) of several other glass related organisations. I help a friend sell paperweights at some large glass fairs every year. I cannot say that I am very artistic but I did “set” a paperweight which was then made by a Scottish paperweight maker. I have also tried my hand at glass blowing – not enough puff and stencilling. I don’t think any of the glass makers need fear any competition from me.

I have also been involved with various charities throughout the years. I was national chair of Working Families when my daughters were younger. I am now involved with the British Lung Foundation and UKPIPS. The latter being a charity promote and protect the physical and mental health of sufferers of Primary Antibody Deficiency and other primary immune deficiencies in the UK, through provision of support, education and practical advice. I have a lung condition called bronchiectasis and an immunodeficiency called CVID. However this will not stop me working with your new President and campaigning for the benefit all the lawyers in Hertfordshire. I also hope that by the end of the year that Tia will have taught me how to take decent selfies!

Freedom of Information and Environmental Information by Judith Gower

he Freedom of Information Act 2000 (FOI) provides public access to information held by public authorities.

It does this in two ways: • public authorities are obliged to publish certain information about their activities; and • members of the public are entitled to request information from public authorities. FOI covers any recorded information that is held by a public authority in England, Wales and Northern Ireland, and by UKwide public authorities based in Scotland. Public authorities include government

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departments, local authorities, the NHS, state schools and police forces. However, FOI does not necessarily cover every organisation that receives public money. For example, it does not cover some charities that receive grants and certain private sector organisations that perform public functions. It does include recorded information includes printed documents, computer files, letters, emails, photographs, and sound or video recordings. FOI does not give people access to their own personal data such as their health records or credit reference file. If a member of the public wants to see information that a public authority holds about them, they should make a subject access request under the Data Protection Act 1998 (to be

replaced on 25 May 2018 by the General Data Protection Regulation). The main principle behind freedom of information legislation is that people have a right to know about the activities of public authorities, unless there is a good reason for them not to. There is a presumed assumption of release and once released it is release to the world. FOI is also described as purpose and applicant blind. Once the request is made under FOI, or if relates to the environment by the Environmental Information Regulations 2004 (“EIR”), the public authority acknowledges the request and then has 20 days to supply the information. In the case of the EIR this can be extended by a further 20 days.

Hertfordshire Law Society Gazette

Featured Article

The public authority has to firstly confirm whether they do hold the information or not and then supply the information unless it falls under an exemption (FOI) or exception (EIR). For the FOI exemptions are found in sections: 21: information reasonably accessible to the applicant by other means; 22: information intended for future publication and research information; 30: investigations and proceedings; law enforcement; 36 effective conduct of public affairs, 39: environmental information; 40: personal information; 41: information provided in confidence; 42: legal professional privilege; 43: commercial interest and 44: prohibitions on disclosure. There are other exemptions but those mentioned relate to all public authorities. Exceptions relating to EIR are found in Regulations 12 (4) and 12(5) and include manifestly unreasonable requests; requests formulated in too general a manner; material in the course of completion, unfinished

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documents and incomplete data; internal communications; the course of justice and inquiries exception; intellectual property rights; confidentiality of proceedings; confidentiality of commercial or industrial information; interests of the person who provided the information to the public authority; protection of the environment and personal information. If information is requested on emissions it has to be supplied and emissions covers a very wide range of matters relating to the environment. Advice given by lawyers within the public authority does not have to be disclosed under regulation 12(5)(b): The course of justice and inquiries exception( EIR) and under section 42 legal professional privilege (Act). The Information Commissioner’s Office (ICO) has upheld the concept of legal professional privilege so far as the information has not been disclosed to anyone else or is in the public domain. With regards to releasing contracts to the public how much redaction has to be

done before release depends on the age of the contract. If it is a contract has only been recently completed then the ICO would accept that there would be more redaction than if a contract had been in place for several years. FOI and EIR is not a way of obtaining information relating to possible criminal or civil litigation before full disclosure. Nor is it a way of obtaining information that cannot be disclosed under other legislation. If the requestor is not happy with the response then they can request a review by someone else in the public authority. Although there is no time limit for the review to take place good practise is that it should be done within 20 days. Once the public authority has carried out the review the requestor can then take their complaint to the ICO if they are still not happy. Further information about FOI and EIR on the ICO’s website: www.ico.org.uk

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Editorial Featured Article

An Interview with Ann Charlton of LawCare By Elizabeth Russell, Vice-Chair of Herts Junior Lawyers Division and Trainee Solicitor at Crane & Staples funds are usually put into our welfare fund where, in exceptional cases, we will fund urgent counselling sessions for callers unable to fund them themselves. Q: What was your background before LawCare and how did you become involved?

nn Charlton is LawCare’s Regional Co-ordinator for England & Wales and I had the pleasure of meeting her earlier this year when she delivered a presentation about LawCare to members of the Herts JLD. Statistics published recently by the Government placed legal professionals third in a list of the most stressful jobs in the UK. As LawCare is a charity that supports and promotes good mental health and wellbeing in the legal community, I met with Ann to find out more about the charity and the services that they offer. Q: How and when was LawCare founded? A: LawCare was founded by the legal profession in 1997. It was set up primarily to support lawyers from all branches of the profession who were experiencing issues with alcohol, giving them a space to talk about their problems in confidence. LawCare quickly evolved into a charity that helps anyone working in the legal profession with any issues that are troubling them. Q: Where does your funding come from? A: LawCare is funded by, but independent of, professional bodies. We are also the recipient of some donations, bequests, legacies, etc. These

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A: I have a background in the legal profession as do all staff and volunteers who answer the helpline. We all understand life in the law, and the issues that the profession faces. We also have a group of peer supporters who are members of the profession and whom we try to match with callers who are in need of extra support. Q: Can you tell us about the support LawCare offers? A: As well as our free, independent and confidential helpline, we have a wealth of information available on our website, from factsheets to blogs to case studies, to details of organisations that can provide extra support. We also have helpful leaflets and top tips for looking after your own, and others’ mental health. Q: Who can access the services LawCare provides? A: We are here to help all branches of the legal profession: solicitors, barristers, barrister’s clerks, judges, legal executives, paralegals, trade mark attorneys, patent agents, costs lawyers and their staff and families. Our support spans the legal life from student to training to practice and retirement. Q: The Law Society’s Junior Lawyers Division carried out a survey this year and more

than 90% of junior lawyers said they felt stressed and under pressure at work. Is this representative of helpline callers? A: Yes, in 2016 the most common reason for calls was stress at 38 per cent, followed by depression at 12 per cent. We know that the culture of law, the long hours and the perfectionist image of the lawyer, can lead to many in the profession feeling stressed. Q: Top tip for coping with stress? A: We have our Top Ten Tips for good mental health and wellbeing, which are available here: https://www.lawcare. org.uk/files/Look-AfterYourself.pdf. We believe the main thing is to keep in touch with yourself so you become aware when you start feeling stressed and can take action. Q: What can law firms do to support staff wellbeing? A: We also have a booklet, Look After Others, which provides tips for good mental health and wellbeing at work. This is available here: https:// www.lawcare.org.uk/files/ Look-After-Others.pdf. Q: 2017 marked LawCare’s 20th anniversary! What changes, if any, have you seen in the legal profession’s attitude towards mental health in the last twenty years? A: LawCare has witnessed significant growth and change in the legal profession over those two decades, as organisations start to embrace the mental health agenda and recognise the need to look after those who need support with mental health issues. We have played our part, moving from

being a charity that supported lawyers who had difficulties with alcohol, to one that offers help with issues ranging from stress to depression to anxiety to bullying at work, right across the profession in the UK and Ireland. Over the last twenty years it has become more acceptable to talk about mental health. When LawCare was set up in 1997 it was difficult for people to get support, or sympathy, and it seemed as if no-one wanted to know. While there has been a gradual sea change, this has accelerated over the past two years. In the legal profession, this has gone hand-in-hand with what we have seen more widely in society, where celebrities and sportspeople have been talking openly about their mental health issues, the Royal Family joined the Heads Together campaign, and the government has pledged more support. We have also had campaigns such as ‘This is Me’ and ‘Time to Change’ reaching into our profession. Q: In what ways can I become involved with the charity? A: LawCare has a network of Peer Supporters, people who work in the legal profession who may have been through difficult times themselves and can offer oneto-one support, friendship and mentoring to helpline callers referred to them. At present we are looking for Peer Supporters in certain areas, particularly barristers or those with experience of disciplinary proceedings. If you're interested in being a Peer Supporter for LawCare, please contact admin@lawcare. org.uk for more information, or call 01268 771333 for a chat about what's involved.

Hertfordshire Law Society Gazette

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Editorial HJLD

Hertfordshire Junior Lawyers Division

For those who do not know, the HJLD form part of the National Junior Lawyers Division, which is a sub division of The Law Society. The HJLD welcomes students, paralegals, trainee legal executives, trainee solicitors and lawyers up to 5 years post qualification to join our membership. The HJLD gives an opportunity for our members to network in an informal setting and providing peer support, advice and information to assist with our career development. We are now in the process of organising the events for the next year and we would welcome our members to get in touch with any ideas and suggestions they may have for events the HJLD can host. If you would like to get in touch with us, please email mail@hertsjld.com or visit our website www.hertsjld.co.uk

Champion HJLD Runner

We are very proud of our fellow committee member Laura Coad (pictured), who completed the Great North Run on Sunday 10 September 2017. Laura ran in aid of the National Autistic Society and achieved a personal best finishing the half marathon in 1 hour and 44 minutes! In April, Laura completed the Virgin Money London Marathon and managed to raise an impressive ÂŁ2,000 for the mental health charity Mind!

he past year has been very exciting for the HJLD, with lots of new members having joined and with a variety of well attended events. The new committee, Tom Axon, Elizabeth Russell, Keshia Bushay-Ellis, Laura Coad, Jodie Sharkey, Supriya Kumar and Kaye Kuruneri have already hosted an event this term and have plans set for 2018 for our members who live and work across Hertfordshire.

Annual South Essex and Herts Boat Party It was another fantastic evening, with the HJLD teaming up with the South Essex Junior Lawyers Division to host once again the infamous boat party cruising up and down the River Thames. The event, held on Saturday 19 August, was kindly sponsored by Wesleyan Bank and Debenhams Ottaway and the theme this

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year was a Masquerade Ball! The event was well attended from both divisions and the weather even held out. Thank you to everyone who attended and we look forward to seeing you at our 2018 summer event!

LawCare and Wesleyan Bank Event On 1 November, LawCare and Wesleyan Bank came together to deliver a presentation to HJLD members and students at the Law Building, University of Hertfordshire.

Hertfordshire Law Society Gazette

HJLD

LawCare is a charity that promotes and supports mental health and wellbeing in the legal community. Wesleyan provide a wide range of specialised financial planning and advice for legal professionals including debt management and mortgages.

event for us and extended thanks to the University of Hertfordshire for their hospitality.

We were joined by Ann Charlton of LawCare whom delivered an important speech about how law firms, lawyers and colleagues across the board can support one another in our profession. We later met with Ann and an interview about the wonderful work LawCare does is included within this issue of the HLS magazine.

The HJLD committee over the past few years have always had a special place in its heart for the Rennie Grove Hospice in St Albans. Each year, the HJLD hosts the annual quiz night and lots of money is always raised for such a worthy cause. Last year we raised over £400! The next quiz is on the 17 January 2017 with “The Best of 2017” as this year’s theme. So if you think you have been paying attention to all the comings and goings for the past year, come along with your team of 6 and show up the rest of us! Places are limited so please get in contact with a committee member of the HJLD to reserve your place! Please see our flyer for further information. If you would like to donate any raffle prizes, we would be delighted to hear from you.

Wesleyan Bank were represented by Guarav Gupta and Lawrence Breese. They spoke about the bespoke services they offer lawyers as well as sharing their top tips on financial planning for young professionals. The HJLD would like to thank LawCare and Wesleyan Bank for hosting this

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Rennie Grove Charity Hospice Quiz

National Junior Lawyers Division Conference and Ball at the Law Society

The 11th Junior Lawyers Division annual conference and ball will be held on Saturday 28th April 2018 at the Law Society in London. Offering a mix of keynote speeches, practical breakout sessions and networking opportunities, the JLD annual conference and ball provides invaluable guidance on taking control of your career. The conference and ball is aimed at all members of the Junior Lawyers Division. Membership of the JLD is free and automatic for LPC students, LPC graduates (including paralegals looking for training contracts), trainee solicitors, and solicitors with up to five years’ post qualification experience. Guests and non-JLD members are welcome to attend the black tie ball. If you are interested in receiving further information about the JLD conference and ball when available please email the JLD at juniorlawyers@lawsociety.org.uk.

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Editorial Charity

Financial Concerns Limit People’s Inheritance Expectations But Not Their Charitable Spirit want with their estate, making provisions for all those things that matter to them.” When it comes to charitable donations, over half of under-45s are happy for their parents to donate part of their estate to good causes. One in 10 claim that they have already actively encouraged their parents to use their Will to do social good and one in 20 went so far as to say that they would be happy for their parents to leave their full estate to good causes. Cope adds: “Despite the spiralling costs of living, social care and economic uncertainty around Brexit, people have a strong social conscience and many even encourage their parents to use their estate to make the world a better place.

lthough British people worry about their finances, the majority no longer expect to receive a considerable amount of future inheritance and are willing for their parents to factor in other beneficiaries into their Will, including good causes.

These findings - from a recent studyi by Remember A Charity - highlight the importance for solicitors of making clients aware of the option of including a gift to charity in their Will, once they have taken care of family and friends. Based on twin surveys of over 2,000 adults (half aged 30-45 and the other aged 65+), the study explored people’s attitudes and expectations around inheritance. It found that while both generations worry about their finances, the older generation is more concerned about their children’s futures than their own. They want to be able to take care of their children and are concerned about escalated living costs and other financial uncertainty. The under-45s expressed their worries about their own financial future, with the rising cost of living, social care, property prices and Brexit all cited as factors

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that are reducing their expectations around what they might inherit in the future. As a result, only a third of adults said they expect their parents to leave them everything they own when they pass away and fewer still now factor inheritance into their long-term financial planning. While both generations were asked their views on what they want to do with their estate or inheritance and whether they would be happy for any potential inheritance to be donated to good causes, the under-45s were shown to have a particularly strong social conscience. Rob Cope, Director of Remember A Charity, says: “This suggests a shift in attitudes between generations. The older generation is enthused about the concept of leaving a gift, but remains understandably anxious about the need to take care of their families. “Meanwhile, their children’s generation is equally concerned about finances, but no longer expects to receive a sizeable inheritance. They have a strong social and moral conscience and, although most hope to be included in their parents’ Wills, the main concern is for their parents to do what they

“We would always encourage people to consider their family and friends first, but it’s great to hear that people seem to understand that they can use their Will both to look after their loved ones and their favourite charities. “With charities feeling the double-edged sword of continued funding cuts and ever increasing demands for services, the support of the legal profession has never been more important.” Backed by Government and the Law Society, Remember A Charity is now launching its annual outreach programme working to encourage solicitors and Will-writers to highlight the opportunity of including a charitable gift to clients. The campaign is calling on solicitors and Will-writers to join its existing network of over 1,100 Campaign Supporters and commit to share information with clients about legacy giving. To find out more or join the existing network of 1,100 campaign supporters visit www.rememberacharity.org.uk. i Survey carried out by Censuswide, 14-18 July 2017. Sample base 1,014 people aged 30-45 and 1,008 people aged 65+.

Hertfordshire Law Society Gazette

Law Society

Diversity of legal profession should mirror the population it serves

he rule of law depends on every person being treated equally within our justice system, the Law Society of England and Wales said today following the government’s commitment to tackling racial inequality in the Criminal Justice System. “The Law Society is committed – alongside dedicated practitioners who work in criminal justice – to supporting the government in improving the system in the public interest and to ensure all are equal in the eyes of the law," said Law Society president Joe Egan. "We recognise the importance of a legal profession – at all levels – that reflects the population it serves. The Law Society has made great strides in increasing diversity in the solicitor profession so that today the proportion of solicitors from BAME backgrounds – at 14.1% – closely mirrors the general population. "At more senior levels, however, we have a lot of work to do before we can say with any confidence we or the judiciary demonstrate diversity.” "The Law Society has a number of initiatives to encourage people from diverse backgrounds to join the solicitor profession and to aim for judicial roles. We are helping firms adopt fair recruitment and development procedures, and supporting them to recognise unconscious bias." Joe Egan added: "Criminal defence solicitors are uniquely placed to ensure defendants from minority ethnic backgrounds are treated fairly. They have a duty always to act in their client's best interests. “We will work with government and other branches of the criminal justice system to ensure all defendants are aware their solicitor is completely independent of the police or other criminal justice agencies. “It is our responsibility to ensure clients understand their solicitor’s efforts are entirely directed to achieving the best possible result for their client within the law and in the circumstances of the case.” Criminal legal aid solicitors are critical for ensuring anyone accused of wrongdoing has a fair trial. But the viability of firms doing criminal defence work is under threat as remuneration rates for criminal legal aid work have not been increased since 1998. Joe Egan concluded: "Criminal justice is at the heart of a democratic society and underpins the rule of law."

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Editorial Advertorial

A notice from our President elect, Attia Hussain

Book Review

by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, “The Barrister”. assessment of general damages in Personal Injury cases Includes Guidance on 10% Uplift 14th edition Foreword by Lord Justice Irwin Compiled for the Judicial College by Mr Justice Langstaff, Peter Carson, Stuart McKechnie, Steven Snowden QC and Richard Wilkinson ISBN: 978 0 19881 452 8 OXFORD UNIVERSITY PRESS www.oup.com

“Twenty five years old and more essential than ever.” A decision some twenty-five years ago by the Judicial Studies Board established a working party to prepare the original Guidelines for the judiciary. As Lord Donaldson said, the Guidelines were “not intended to represent, and does not represent, a new or different approach to the problem” of how to assess general

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damages, especially where no two cases are ever precisely the same. Today, in 2017, Lord Justice Irwin says in his Foreword that Donaldson’s view is now “a voice from a different era” concerning the assessment of damages. The reason being that the judges now will only from time to time be called on to take a decision on assessment because it is no longer “one of the commonest tasks of a judge sitting in a civil court” and working out the assessment level. As Irwin LJ concludes, it is the case now that the real dispute on quantum lies elsewhere. He writes that “the argument as to the level of damages for pain and suffering will usually be an incidental issue in a case where the decisive matters are liability, the nature of a care regime, disputed contributory negligence or something more technical”. And all this is down to one factor“these Guidelines have operated to diminish hugely the incidence of unsettled arguments as to damages for ‘PSLA’ (pain, suffering and loss of amenity)”. The guidelines have settled the law and given us an admirable service in the past and the new edition continues to give us the best information available for assessments and how we arrive at them.

As a passing final thought, Irwin LJ mentions both the Jackson reforms and the proposals on “whiplash”. Both areas have fallen victim to the dominance of Brexit matters in Parliament and the June election. However, the future is catching up with all of us fast. The question posed is will the reforms and “whiplash” get Parliamentary time? We hope the answer is “yes” for the same piece of draft legislation will be essential for the enactment of the electronic civil court by means of the ‘Online Procedure Rules’ which Irwin rightly describes as “an essential part of the Courts’ Reform programme”. He ends ominously with these words- “the cliched Chinese curse of life in interesting times sounds less hackneyed than usual”. Donaldson and the JSB grasped the nettle 25 years ago with these Guidelines so there should be no excuse! So, you and your practice need this guide if you are involved in any aspect of personal injury work. We hope that other suitable guides will be published by the Judicial College and OUP in the future (for instance, online courts) because they make our working lives much easier as practitioners and they are a boon for unrepresented parties as well. These guidelines were published as a 14th edition on 28th September 2017.

Hertfordshire Law Society Gazette

Editorial Advertorial

Five reasons to outsource your payroll By Julian Bryan, Managing Director, Quill

he clock is ticking for UK employers who haven’t yet gone live with auto enrolment workplace pensions. The final staging dates are imminent and The Pensions Regulator is now routinely publishing details of employers who’ve been ordered to pay fines for ignoring new pension rules. If you’re not compliant already, now’s the time to act. However, if you’re battling to get to grips with auto enrolment (and we wouldn’t be surprised; it hasn’t been labelled “the biggest shake up of pension reform for a generation” for nothing!), there’s never been a better time to outsource the increasingly burdensome payroll function. “You’re bound to say that!” we hear you shout. And, yes, we agree with you. As an outsourced service supplier, it’s in our best interests to promote outsourcing at every opportunity. But, we anticipate some scepticism which is why we’ve helpfully compiled a compelling list of five good reasons in our attempt to convince you that we’re not being entirely selfish. We’re actually doing our bit to help you cope with mandatory pension reform and avoid costly financial penalties or irreversible reputational damage. So, without further delay, let the five reasons begin:1. Auto enrolment applies to everyone Even if you employ just one person, you’re still obliged to provide a workplace pension. In other words, there’s no avoiding it. It’s the law. Whether you’re a small, medium or large-sized business, you have a legal requirement to comply by your allocated staging date. We strongly recommend staging date as soon possible. It’s easy to do. your PAYE reference. This

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checking your as practicably First, hunt out is conveniently

located on all your company’s HMRC documents. It takes a 3-digit, 7-character format, for example, 913 / WZ5121A. Armed with your unique identifier, go to the online staging date tool at www. thepensionsregulator.gov.uk/employers/ staging-date.aspx, enter your PAYE code, complete the recaptcha box and click the ‘Show my staging date’ button. 2. Punishments are enforced Just as with any breaches of the law, there are punishments for non-compliance. The Pensions Regulator is empowered by the UK Government to regulate and fine businesses who don’t comply, whether deliberately or unintentionally. Financial penalties range from £400 fixed penalty notices right up to £50,000 civil penalties for companies failing to engage with auto enrolment or pay contributions due. And it’s not just the financial cost, although this is obviously deterrent enough. The negative publicity surrounding your unlawful activity may cause irreparable damage to your professional reputation. As a legal service provider, this is extremely embarrassing. Even worse, you may lose clients as their trust in you becomes questionable and, as a result, they begin to conduct their legal affairs elsewhere with one of your (delighted!) competitors. 3. Managing work-based pensions is demanding and complicated Even before your staging date arrives, there’s a lot to do. This includes assessing your workforce to see who’s eligible (against defined criteria), choosing a pension scheme (from an auto enrolment ready pension provider) and communicating with your staff regarding their options. One of your earliest decisions relates to the individual pay components which determine your employees’ qualifying earnings, for example overtime, commission and bonuses. It’s up to you to make a reasonable judgement as to whether each element fits within the definition of qualifying earnings.

All this lengthy preparation is stressful enough without a last-minute rush by businesses who’ve left it until the eleventh hour to prepare. Much more so, if you have! And, even when you’ve reached your staging date, your responsibilities don’t end there. Employees must be re-assessed, contributions re-calculated, opt-ins added, opt-outs removed with refunds given each payroll cycle. Not forgetting general record keeping and reporting which is part-andparcel of maintaining a clear audit trail of transactions. It’s a mammoth task and one which needs tackled every few weeks ad infinitum. The main reason cited by businesses postponing their staging date is an inability to cope with the excessive amount of prescribed paperwork. Despite being on the horizon for years, firms are continually caught unawares by the sheer volume of work involved preparing for auto enrolment. 4. Selecting a pension provider is a difficult decision Pension providers are much of a muchness, offering the same service for the same fee, right? Wrong! With no restrictions on charges, some providers are applying additional administration costs. Providers’ benefits, such as range of investment options and web-based software support, vary drastically too. Your choice of pension provider will influence the costs to your business of auto enrolment as well as determine the administrative processes involved. So, the small print matters and needs to be carefully checked, compared and questioned before you sign on the dotted line. 5. There are other payroll duties to manage too To top it all, your payroll clerk (who may also be your business manager, accounts clerk, general administration assistant, receptionist or everything combined!) has all his / her existing responsibilities to take care of. Your employees’ salaries, for

Hertfordshire Law Society Gazette

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instance. After all, unless they’re working on a voluntary basis, at the end of each month, your employees have to get paid. On a standalone basis, payroll management can be a full time job, covering salary processing, SMP, SPP and PAYE payments, payslip production, in-year and year-end reporting, as stipulated by ever-changing HMRC legislation. A heavier workload resulting from the introduction of auto enrolment pensions and, suddenly, the role assumes unmanageable proportions. The net result of overwork is often stress at work. This isn’t pleasant for your struggling employee, who may require long-term sickness leave for recovery purposes, or for you dealing with the fallout, sharing your absent staff member’s duties between present employees or recruiting temporary stand-ins. As a Bacs-authorised bureau (more on this later), we’re permitted to perform your payroll function on your behalf, including

http://www.hertslawsoc.org.uk/

transferring money from your business bank account directly into your employees’ bank accounts to pay their monthly salaries, thus significantly lightening the load on you. These five reasons are specifically related to payroll and pensions. There are, of course, many other reasons to outsource complex, heavily regulated back office business functions. For example, lower operational costs, enhanced risk management, compliance assurance, availability of valueadded support, automatic emergency planning, built-in disaster recovery, scalability, healthier cash flow and business development assistance… to name a few. Read our earlier “Ten reasons to outsource your cashiering” guide at www.quill. co.uk/10-reasons for full details because, although specifically related to outsourced legal cashiering, the substantial list of benefits is equally resonant when the topic’s focused on outsourced payroll. To wind up, then, hopefully by now you’ve

gained a better understanding of what’s demanded by auto enrolment. You may also have come to the conclusion that you simply don’t have the capacity to cope in house with your already-stretched human resources. In which case, our Quill Payroll outsourcing service is an increasingly appealing option. HMRC approved, Bacs registered, Chartered Institute of Payroll Professionals accredited, 40+ years experienced, Quill Payroll is a service you can depend upon, leaving you free to focus on running your business with complete confidence that your payroll and pensions couldn’t be in safer hands. Visit our dedicated Quill Payroll website at www.quillpayroll.co.uk, email info@ quillpayroll.co.uk or phone 0845 226 2587. Julian Bryan joined Quill as Managing Director in 2012 and is also the Chair of the Legal Software Suppliers Association. Quill is the UK’s largest outsourced legal cashiering provider with 40 years’ experience supplying outsourced services and software to the legal profession.

17 ▲

Editorial Advertorial

Up-front access to clear information will improve home-buying process M

aking clear and concise information available at the right time could speed up the entire home buying process, the Law Society of England and Wales argued today in response to a consultation by the Department for Communities and Local Government. “Buying a home is one of the biggest decisions people make, and it is important they have access to enough information to make an informed choice,” Law Society president Joe Egan said. “Many people can get conveyancing maze. Estate and conveyancers all have in ensuring things proceed possible.

▲ 18

lost in the agents, lenders a role to play as smoothly as

“Home buyers and sellers should be aware of their rights, as well as the responsibilities of all stakeholders in the transaction. This should include an overview of the process and the potential costs and fees involved. “We are calling on the government to ensure consumers have access to this information at the beginning of transactions - this should limit the number of purchases that fall through.” The Law Society also argued the need for robust and consistent consumer protections. Joe Egan added: “Ensuring clients are able to make informed decisions is just the first step in protecting their interests. “We are also calling for all stakeholders to be

held to codes of conduct or protocols which will maintain the high standards expected by consumers. “There need to be minimum standards which require all relevant information to be shared. “Too often we hear stories about consumers being surprised at the eleventh hour or after a sale has gone through about extra costs involved in their purchase – this is unacceptable. “We want to ensure consumers are wellinformed and protected. “This consultation is a good first step in improving this process and we hope the government takes action to address our concerns – and more particularly the concerns of consumers.”

Hertfordshire Law Society Gazette

Editorial Expert Witness Section

Bending Over Backwards Expert Witnesses confer and convene with legal high fliers on costs and other awkward questions Elizabeth Robson Taylor and Phillip Taylor MBE of Richmond Green Chambers review the highlights of the 2017 EWI conference.

ou always know it’s autumn when the conference season kicks off. And it

is usually the Conference of the Expert Witness Institute (EWI) that starts it

in considerable style.

This year, on 21st September 2017, over 100 EWI members made their annual pilgrimage,

In response to the obvious need for a further review, the Lord Chief Justice and the

Master of the Rolls commissioned Jackson in November 2016 to develop proposals for extending the principle of FRC – Fixed Recoverable Costs. An EWI First Judging from Jackson’s additional remarks just prior to the speech, the EWI members attending this conference were among the first to have sight of – or at least detailed information about – the latest recommendations in his supplemental report.

as it were, to their usual conference venue of Church House, looking customarily

As the Report was first published in July of 2017, government ministers who were to be

Abbey and Parliament.

However, by the time this article sees the light of day, they will indeed have seen the

As in previous years, the Conference was notable for its roster of distinguished speakers,

it is not even remotely possible that the newly published recommendations will be

impressive in its leafy, campus-like location in Westminster, not far from Westminster

its first recipients, were all away on their hols and therefore not available for comment. Report, one hopes, and noted its contents. But considered in the light of experience,

from Lord Justice Rupert Jackson, who gave the keynote speech -- to the inaugural

implemented before Jackson’s retirement in March 2018.

his role as a High Court judge, has assumed the chairmanship of the EWI.

His wide-ranging speech to Conference, however, covered many more issues, including

Presided over by EWI Governor and Conference Chair, Amanda Stevens, this is a

numbers of staff and IT facilities in the civil courts.

address delivered by Martin Spencer QC (now Mr Justice Spencer) who, in addition to

gathering where lawyers are well placed to garner important insights into the role of

the expert witness in court -- and where expert witnesses can meet, greet and compare

matters such as guideline hourly rates… ‘not satisfactorily controlled’, and inadequate

He pointed a critical finger at other factors that bump up costs: ‘time consuming court

notes with each other, as well as with the lawyers whom they might possibly advise, or

procedures’ are one example -- and ‘the complexity of the law’ another, in certain areas of

Expecting an especially memorable conference this last year, the delegates were not

soon, is simplification, which would certainly benefit bemused members of the public

for whom they might well receive instructions.

litigation. The obvious remedy, which again is hardly likely to come to pass all that

disappointed.

and the growing numbers of litigants in person. Article continues on p.22

The Keynote Lawyers of course will need no reminder that it was Jackson who, in 2009, accepted the

monumental task of constructing the famed and often controversial ‘Jackson Reforms’ on the vexed question of costs, implemented finally in 2013. His keynote speech referred throughout to his latest supplemental report published on 31st July 2017. The title -- ‘Review of Civil Litigation Costs: Supplemental Report Fixed Recoverable Costs’ -- is self-explanatory.

Interviewed just prior to his keynote address, Jackson mentioned that his reforms have been the subject of some negative comment. The criticisms in his original report were aimed primarily at legal fees of the exorbitant, outrageous and disproportionate variety.

Many have argued of course that what is termed disproportionate by the consumer of legal services is not necessarily considered so by the legal team which provides them. Controversies on Costs Herein lie the seeds of controversy, not surprisingly, which have been germinating for some time. Meanwhile -- especially transatlantically --- the matter of ‘pricing’ legal

services has become almost a separate discipline, presided over by consultants – not

necessarily lawyers -- who claim special expertise in this area. It’s equally unsurprising

that these and related developments have pointed up the need once again, for Jackson’s latest Report.

Affable and erudite -- note that he has been editor-in-chief of The White Book since 2010 -- Jackson explored more than a few key areas of scrutiny on fixed recoverable costs. As

expert witnesses can and do provide testimony in court which can turn the course of a

case one way or another, they do expect to get paid – proportionately and preferably on time. Judging by certain searching questions from members of the audience, issues of costs at this conference began to emerge as a major concern.

Jackson therefore referred to the causes of excessive costs identified in his initial costs review. While most of his recommendations have been, in his words, ‘bedded in’ following their implementation in 2013, there are six remaining that haven’t -- and in which apparently little or no progress has been made.

▲ 20

Hertfordshire Law Society Gazette

Paul Smith is a highly skilled consultant who offers expert treatment and advice in the areas of Hand Surgery, Reconstructive Plastic Surgery including skin cancer management. He is one of the most experienced Congenital Hand Surgeons in the World and is a member of the Congenital Hand Anomaly Study Group of which there are only 30 members worldwide He has been involved in the preparation of medical reports since 1982 (averaging approximately 70 reports annually), he is familiar with court procedures and has attended court on a number of occasions. In November 2009 he attended the Update to Part 35 of the Civil Procedure Rules with Bond Solon and completed Single Joint Expert Witness training in 2000. He is available for reports in the following areas: • Hand Surgery • General Plastic & Reconstructive Surgery • Scar revisions • Malpractice reports

For all enquiries, please call Paul’s Secretary on: 01923 828 100 Bishopswood Hospital, Rickmansworth Road, Northwood, Middlesex HA6 2JW E: paul@paulsmithfrcs.co.uk Fax: 01923 844 849 www.paulsmithfrcs.co.uk

FOOT CONSULTANT CLINICS

Mr Stuart Metcalfe BSc(Hons), MPhil, FCPodS, FPodA CONSULTANT PODIATRIC SURGEON surgery & biomechanics of the foot

www.footconsultant.com

Dr Gary Hartnoll

MA (Cantab.), MB, BCh, MRCP, FRCPCH

Consultant in Neonatal Medicine

Dr Gary Hartnoll has been a Consultant Neonatologist since 1999, working in tertiary level neonatal units covering both medical and surgical conditions.

r Metcalfe consults from specialist foot & ankle clinics in London, Birmingham and Hampshire. With over twenty five years of clinical experience you can be certain to receive expert care. An international lecturer and author of numerous scientific papers Mr Metcalfe is without doubt one of the UK’s leading Consultant Podiatric Surgeons and Clinical Director of Footconsultant Clinics which provide all levels of care from Chiropody through to advanced surgical corrections. 25YEARS OF EXPERIENCE AS AN EXPERT WITNESS Mr Metcalfe has over twenty five years clinical experience in the field of Podiatry including general Podiatry, biomechanics / sports medicine, specialist wound care and foot surgery. For over a decade Mr Metcalfe has been on the list of approved UK register of expert witnesses gaining an enviable reputation for high quality medical reports.

Areas of specialist interests include • Biomechanics / Sports Injury • Bunion surgery • Diabetes • Foot surgery • General Podiatry • Nail surgery

Services include: • Short form reports (by prior agreement) • Liability reports • Condition & Prognosis reports • Personal injury

• Orthotics

His clinical practice covers all areas of neonatal medicine, including the neonatal care of premature infants and of babies with surgical problems. Dr Hartnoll can act as an expert witness, including the preparation of medico legal reports and appearances in court, in negligence cases relating to his specialist areas of expertise. These include neonatology, neonatal intensive care, medical management of the surgical baby, birth asphyxia, new-born resuscitation and all aspects of new-born baby care. Dr Hartnoll can take instructions from either claimant or defendant or as a Single Joint Expert. He is a member of the Academy of Experts and holds the Bond Solon Cardiff University Certificate in Civil Law. He is also a Fellow of the Royal College of Paediatrics and Child Health, member of the British Association of Prinatal Medicine and the Neonatal Society. Course director for the Newborn Life Support course of the UK Resuscitation Council.

• Verruca treatments • Wound care

For appointments, telephone Anne Fellows (Secretary) on: 0845 222 0007 or 07960 472824 Email: appointments@footconsultant.com

T: Secretary 020 3315 7881 E: Gary.Hartnoll@chelwest.nhs.uk

Editorial Expert Witness Section

Continued... It would seem, however, that his criticisms of ‘too high’ court fees, have been met

with indifference. ‘I might as well bleat at the sea like King Canute,’ he said. ‘Instead of being reduced, they’ve gone up. I’ve made harsh comments about that, but no one has taken

best advice – and a good suggestion too, as it functions as a precis and guide to the main document, while reiterating crucial points.

any notice!’

The first of these is a reminder that ‘In England and Wales, the winning party is

[Sorry, we can’t help mentioning here that King Canute gets a bad press on this one. What

many overseas/transatlantic clients (you’ve probably got at least some of those) just

he was really trying to do was convince his sycophantic courtiers that even he, with all his earthly power, couldn’t control the sea -- any more than anyone can turn back the rising tide of new and ever-evolving legislation, as well as burgeoning costs.]

entitled to receive costs from the losing party.’

Now there’s a grim reality that

simply don’t get. In their view it is: (a) incomprehensible; (b) unbelievable and (c) grossly and manifestly unfair. A Flawed Recipe

Turning his attention to matters of medical negligence -- ‘a very difficult subject’

The consensus here is that each side should jolly well pay its own costs, thank you

suitable either for the fast track, or even the new ‘intermediate’ track which he has

winner-takes-all policy is quite simply ‘a recipe for runaway costs.’ Now though, it

– Jackson expressed the view that most such cases worth up to £100,000 were not recently proposed for other matters. However, other medical negligence claims of under £25,000 could -- or might -- be dealt with by a ‘bespoke process’ and a grid

very much – which is not out of line with Jackson’s considered opinion that this appears that the ‘recipe’ isn’t going to be changed in a large hurry.

of fixed costs.

Jackson nonetheless retains his staunch belief in fixed recoverable costs, stating

The Executive Summary

Agreed fees up-front…or in advance -- or whichever way you want to put it --

As for the Supplemental Report itself, ‘read my Executive Summary,’ is Jackson’s

unequivocally that ‘the only way to control costs effectively is to do so in advance.’ should in most circumstances, be the order of the day.

Data Protection Law evolves into a new niche

e are at present seemingly swamped by marketing materials which are keen

parties for other purposes. The consent these companies have obtained from consumers

wide data protection regulation, the GDPR 1, which is due to come into force on

cannot be foreseen. The retention of genetic information is in fact broader than that

to point out the financial consequences of non compliance with the new EU

25th May 2018. This legislation, despite the inevitable cost to business in terms of

change to process and procedure, is badly needed for the protection of all of us. The stealing of personal data for nefarious reasons is becoming more and more

common and it is right that the law evolves to protect its citizens. Hailed by many as a “revolution”, we prefer to think of it as an “evolution” to fill a niche largely

is not a fully informed consent as there may be risks and consequences that currently

too…such information is being held by healthcare providers and by universities and

indeed, sometimes without limitation of time. You may have heard of “biobanks”, where genetic information is held for the purpose of “research”…i.e. DNA data mining, which is often carrying a tenuous rationality.

created by e-communication.

This is precisely why GDPR is needed, consent buried in T&Cs is not a fair consent

For those of us involved in resolving family law cases using DNA testing technology,

data cannot now just be held in the expectation that an opportunity will arise for the

there are now some additional considerations, notably those relating to genetic information that could have derived from, say, a paternity test. For the first time, these data, along with biometric data are specifically mentioned in the legislation and are

classified as sensitive personal information, along with religious beliefs, physical and mental health and ethnic origin. This is long overdue. Nothing is closer to your very being than your own unique genetic code. Analysis of your genes can already tell a lot

and the explicit “opt-in” required under GDPR will mean that consumers genetic

testing company, without the consent of the donor to the use of their data in the new circumstances. GDPR also means that there will need to be accountability for the genetic data stored and how it is used. This is in no part a complete block on important genetic developments; GDPR is quite rightly asking for accountability for the DNA data, as it does with other pieces of Personally Identifiable Information (PII).

about you, in the future this will be substantially more. Predicting (yes predicting, not

In family law cases, which generally involve DNA profiling, reasonable steps must be

of you that think that the ability of ISPs to present advertisements based on your surfing

deal with, e.g. multiple solicitors representing different clients, the involvement of social

just diagnosing) diseases, abilities or preferences all come under the spotlight. For those

activity is bad enough, it is truly little compared to what could be done with access to your genetic data.

The key to unlocking your code is the physical DNA itself, which can be isolated from

a bodily sample, most simply a cheek swab or saliva sample to collect some cells from inside the mouth. In a paternity test we look at regions of DNA that are to be found throughout your personal DNA code (your genome). For the most part, these regions

(the DNA profile) have no functional consequence, they are just markers in the sand. They are powerful enough though, to identify your immediate family and who is, or is not, the father of a child. It is this DNA profile that you may hear about as being stored

taken to protect clients’ data. Given the complexity of the cases we generally have to

services and local authorities, court orders, private individuals and international cases (including immigration), there is a veritable minefield of responsibility which must be

attended to under GDPR. Coupled with the need of many to improve general internal

practices (location of data, how it is used and shared, accessing from off site, cloud storage) GDPR will bring significant audit responsibility to the legal profession and it subcontractors.

We stand ready to work with you on these complex issues. What will arise will be a better system where genetic and other data is properly accounted for.

on DNA databases and retrieved for example, in connection with a crime.

Dr Neil Sullivan,

More imperative to consider is the rise of companies which obtain your DNA sample

General Manager,

BSc., MBA (DIC), LLM, PhD. Complement Genomics Ltd.

and sequence the entire genome or make a detailed map, thus providing you with a

(trading as www.dadcheckgold.com)

report on say, your distant ancestry or changes in your genome which relate to disease

pre-disposition or other characteristics. These data are necessarily far from complete

and conclusions are far from absolute, yet these providers often continue to hold the

their DNA and the sharing of their genetic data (sometimes with payment) with third

regulation-gdpr/

DNA, sample and data. Consumers may find that they have agreed to retention of

▲ 22

The General Data Protection Regulation

see https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-

Hertfordshire Law Society Gazette

Mr Sameer Singh MBBS BSc FRCS Consultant Orthopaedic Surgeon

Mr Sameer Singh is an experienced expert witness in personal injury and medical negligence cases relating to his specialist areas of expertise. These include: • All aspects of trauma soft tissue and bone injuries • Sports Injuries • Upper and Lower Limb Disorders and Injuries • Whiplash Injuries His practice concentrates on shoulder, elbow and hand disorders, using techniques that are tailored to patient needs and utilising accelerated rehabilitation techniques to promote faster recovery and reduced time off work. Mr Singh completes over 200 medico legal reports per year and offers an efficient turnaround within 10 days from receipt of all relevant documentation. He can take instructions for cases on behalf of either claimant or defendant. Clients can be seen in clinic locations in Bedford and Milton Keynes.

Expert Profile: R.G. Wagstaff BSc, DipPhys, Cert Comp Math (Open), LCGI, MITAI and Hertfordshire Police before finally serving prior to retirement on the triforce collaborated unit for Bedfordshire, Cambridgeshire and Hertfordshire.

ob Wagstaff is the managing director of this company. He was a time served Engineering Technician prior to joining the Police Service, he has served for 30 years in Bedfordshire Police with the last 23 years as an expert in the field of collision investigation. During his service within the Police he has investigated many fatal, serious injury and life changing events, including a number of murder investigations and ‘Cash for Crash’ jobs the most notable being “Operation Exhort” a £3.24 million fraud case. Since 2015, following retirement from the Police Service, he has remained active in the field of collision investigation working as a consultant Bob Wagstaff was the Senior Collision Investigator for Bedfordshire Police and for the Collaborated unit of Bedfordshire

T: 01908 305127 M: 07968 013 803 • www.orthopaedicexpertwitness.net E: orthopaedicexpert@gmail.com • www.shoulderelbowhand.org

Bob has been commended by the Chief Constable on a number of occasions for his work in the field and most recently commended in open court by the Deputy Coroner, Mr Oldham for his services to the Coroner’s and to the county of Bedfordshire in the role of Collision Investigator. He has continued to develop his skills maintaining a portfolio for Continued Professional Development (CPD) and was registered with Council for Registered Forensic Practitioners (CRFP) in the specialist discipline of Road Transport (Collision Investigation and Vehicle Examination). Bob Wagstaff is currently the External Examiner for De Montfort University overseeing the UCPD, Cert HE and the FdSc courses in Collision Investigation. Bob Wagstaff has written and verified approximately 850 reports in his career and has given evidence on a number of occasions at Magistrates / Crown Court, and has presented evidence on numerous occasions at a number of different Coroners courts.

Tel: 01525 864 852 or 07917 208 308 Email: bob@wagstaffforeniscs.co.uk 9 Sharp Close, Maulden, Bedforshire, MK45 2BZ, United Kingdom

Editorial Featured Article

Annual Bar & Young Bar Conference 2017

One Bar: Threats, Opportunities and Strengths

The Tragedy of the Young Bar Uncovered As assessment by Phillip Taylor MBE, Reviews editor, “The Barrister”, and Head, Richmond Green Chambers.

he annual Bar Conference never disappoints and this year’s 32nd gettogether in London was no exception. For readers who have never attended the event, it is organised to cover high-profile key note speakers and a series of “break out” sessions to cover specific areas of practice. Described as a “flagship event”, both the Bar and Young Bar now hold their Conferences together. Not surprising really because the state of the Young Bar remains perilous! The Chairman of the Bar, Andrew Langdon QC, opened proceedings with a hardhitting series of statements. Langdon began on a reasonably optimist note about our future, but it did not take long before we got to the heart of the current agenda- the threats to our existence.

“Our demise has been prophesied since I was called 31 years ago”, he said. “But you cannot keep a good idea down” referring to the tripling in the size of the Bar during those three decades. Langdon went on to cover the big current issues of the moment: ‘flexible operating hours’; women in practice; technology; and judicial morale. But worse was to come – the shrinking of the junior Bar, with Langdon saying, “we are currently losing young barristers who see how hard it will be to pay back the debts they incur in training”. A conclusion which ran through the entire day was the event’s peroration with many attendees believing that “the lack of confidence in public funding is partly what has caused chambers to recruit fewer members.” Which brings us to Duncan McCombe, chair of the Young Barristers’ Committee, who presented a message “of hope tinged with caution” according to one commentator although behind the public face there remains a deep-rooted concern at the huge drop in younger people attending the Conferences and being able to stay the course of early years at the Bar. McCombe was impressive and did not rock the boat, but the tragedy of the Young Bar is upon us unless action is taken. And that applies also to training contracts for trainee solicitors. He finished with these words: “The practice of farming out junior practitioners for heavily reduced rates or nothing at all, so that larger Crown Court briefs can be brought in for those higher up in Chambers is exploitative. It must stop.” He is right, and sadly it is not just about the Junior Bar, either. When we all started as lawyers we needed the initial work experience which is more difficult to get today (because of legal aid cuts) so we need such exploitation to stop or there will not be new people following us in the profession.

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Of course, we received the most welcome Susskind treatment as well. Now Richard Susskind can be misunderstood but his keynote to the Young Bar was unmistakable - assessing how technology can make access to justice more accessible, so it will be a choice of whether to compete or embrace new technology for the excellent Heather Hallett reminded us “having highly skilled specialist advocates is a good idea… and you cannot keep a good idea down”. Thank you, Heather, for that very positive sound bite which ran through all the sessions. We are, of course, keeping the best moment to last although if you have not been to this Annual event before do come next time. There is so much to offer from the top of the profession because there is normally at least one treat in store- this year it was the indefatigable Henry Brooke who never fails to surprise us. We don’t get many standing ovations, that is for political Conferences which are normally fixed. However, Henry Brooke got one for a most passionate speech. Readers will be familiar with Henry from his time on the Bench and his courage in fighting for a cause, whether prison reform or legal aid. It was legal aid this time and his quiet and carefully constructed delivery made the Conference. The final word will go to the Bach Commission report. We had both the Attorney General and Solicitor General present at the event - they treat our deliberations very seriously, so we know the message gets back to the top. The point from 2017 onwards is that legal aid has wreaked havoc, especially in lower proceedings where the savings have been big but not as brilliant as the Treasury (and some MPs - we know who you are) hoped. As Brooke indicated referring to a letter from a district judge who wrote, the day in court “is a long nightmare”, for “so very many have mental health problems, drugs, language, learning difficulties”. That unnamed DJ said, “I cannot no longer do justice or protect the vulnerable child or adult”. He wrote - “I am in despair”. It doesn’t have to be like this and that is the message from these Conference sessions for me for we can go forward being positive and avoid what could be big tragedies for the future as the legal agenda changes in post-Brexit Britain. Thank you to everyone for making this event so memorable at a clear turning point for the profession.

Hertfordshire Law Society Gazette

Law Society

New solicitor silks appointed

ive solicitor advocates appointed Queen's Counsel today were singled out for praise by the Law Society of England and Wales. "Appointment as a Queen's Counsel is a defining achievement for an advocate, and recognises their work as among the highest quality advocacy in the country," said Law Society president Joe Egan. "On behalf of the Law Society I warmly congratulate all those newly appointed Queen's Counsel on their achievement, and the lifetime of dedication to the law it represents. "The growing number of solicitor advocates recognised in this way reflects the immense skill solicitors bring to the court room. Today we congratulate five solicitor advocates newly appointed QC: Philip Clifford of Latham & Watkins Louis Flannery of Stephenson Harwood

Imran Khan of Imran Khan and Partners Sophie Lamb of Latham & Watkins Reza Mohtashami of Freshfields Bruckhaus Deringer Joe Egan continued: "I would also like to offer particular congratulations to Janet Legrand for the award of Honorary Queen's Counsel. Janet has made such a contribution to the increasing diversity in the solicitor profession, championing women and social mobility to great effect. "As David Lammy recognised in his recent review, diversity in the legal profession is really important for the administration of justice. We believe that means having people in senior positions from different social and professional backgrounds, as well as different ethnicities and genders. "Solicitors are an important part of that mix. Given the breadth of experience a solicitor brings and the excellence so many practitioners demonstrate in their work, I would urge more solicitors to aim for Queen's Counsel."

Advertorial

♫ The Folly and the High Fees ♫ Study suggests trustees should revisit their investment strategies.

he Financial Conduct Authority’s (FCA) recent report suggests that the season of goodwill does not extend to the asset management industry. The “asset management market study” examined the performance of UK fund managers, shining a spotlight on fund charges, fund performance and competition. The results are scathing, concluding that the £7 trillion industry is failing to deliver an adequate service to its investors. In summary, the FCA’s main points are these: Actively managed funds offer limited competition on price. The implication is that investors often pay over the odds, and the costs are not justified by higher returns. The sector shows a high degree of ‘price clustering’, with the implication being that actively managed funds are too expensive. Passively managed funds generally offer better performance with lower fees. Fund objectives are not always clear. Economies of scale are often not passed on to the consumer. Performance is not always reported against a suitable benchmark, making it harder for investors to know if they are truly receiving good value. The FCA has zeroed in on what it perceives as a lack of transparency. It is hard for investors to tell whether the fees they are paying for actively managed funds are justified. Taken together with the industry’s high profits and the clustering of prices, the insinuation that hangs over the report is that investors are being exploited.

http://www.hertslawsoc.org.uk/

The report’s potential impact is farreaching. Trustees in particular, need to be confident that the funds they invest in are truly as suitable as they appear to be, or they themselves risk accusations of not fulfilling their duty of care. It is vital that they receive proper advice from an investment professional when reviewing the trust’s assets in light of the FCA’s new findings. The scathing criticism of activelymanaged funds, and their unfavourable comparison with passive funds, should prompt investors to review their investment strategies. The report’s claim that the fees incurred by activelymanaged funds are ‘not justified by higher returns’ will herald a significant shake-up in how individuals, trustees and pension funds choose to invest. In particular, the FCA’s finding that a market-tracking passive fund could outperform an active one by 44 per cent over 20 years, due to lower charges, is damning. In our experience, actively managed investment solutions lead to less predictable and less consistent fund performance. Just because portfolios can be frequently changed to react to prevailing market conditions, it doesn’t mean that they should be. It is not easy for an actively managed fund to consistently outperform the market as a whole, but its increased levels of fees (relative to a passively managed fund) will definitely create a significant drag to the fund’s performance. It is important to always keep an eye on the big picture and remember that we are investors, not speculators. As unfashionable as it may sound, the most consistent method for delivering steady, risk-controlled returns is to choose a low cost, diverse long-term strategy and then stick to it. At Provisio, we have employed this strategy since 2008 and have built up

a track record of delivering consistent, risk controlled investment returns. By focusing on long term asset allocation weightings and aiming to keep fund costs as low as is reasonably possible, we tend to outperform most actively managed funds over most investment periods. Of course, such performance can’t be guaranteed in the future, but it is reasonable to expect that this method is likely to deliver suitable returns for long term investors. As such, trustees should seriously consider low cost passive strategies for their assets. The traditional premise that active fund management will deliver superior investment returns has been proved to be folly. Active funds may or may not perform better than passive funds, but they will definitely cost significantly more. The quandary for investors is knowing which actively managed funds are worth paying for and which are not. This is a problem that even the three wise men would find challenging to overcome. One solution would be to ask Father Christmas for a time machine. Another would be to seriously consider low cost passively managed funds when reviewing investment strategies.

Philip Bailey Provisio Wealth Management 01462 687 337 pbailey@provisio.co.uk Provisio is authorised and regulated by the Financial Conduct Authority.

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Editorial Advertorial

Delving Deeper into Flood Due Diligence

hen it comes to undertaking environmental due diligence as part of any property transaction, irrespective of whether it’s residential or commercial, it’s important to ensure that the right level of analysis is undertaken. From a buyers’ perspective, they rely on their lawyer for insight and guidance into such hazards, and with research showing that one in every six residential properties is considered to be at some level of flood risk in the UK*, it is important to ensure all checks are made to ensure compliance.

The good news for conveyancers is that you’re not expected to become environmental specialists overnight. Flood reports have evolved and today the right reports present high quality consultant-led opinion and relevant flood data in an easy to understand, visual format that make them clear to interpret and more consumerfriendly than ever before. They make it clear what the results mean for the property purchaser and today, some provide a series of ‘next steps’ from qualified environmental consultants as part of the report, offering specialist guidance. This means that far more reports will be passed first time as any ‘at risk’ addresses will be manually assessed by a team of expert environmental consultants, at no additional cost. Ensuring the right calibre of report is used is important. There are reports that are automated, which present findings based on predetermined datasets. However, working with providers that offer consultantled flood risk assessment offer advantages: identified risks are genuine and resulting guidance is of high quality and unambiguous; enabling

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solicitors, purchasers and where relevant - lenders with the ability to make better informed decisions.

A recent example of this can be seen in a case study following a solar farm purchase. The client had two lawyers acting on their behalf – one was an energy lawyer and the other was a property lawyer. The seller received two environmental reports for the farm – one commissioned by the seller at the outset, and the other by the financial institution later in the process. One was a consultantled report – which in this circumstance was an Argyll Site Solutions Combined report – and the other was a standard, automated flood report. It resulted in a clear conflict of results between the two reports and, as such, the deal could not proceed until the issue was resolved.

The use of consultant-led reporting over computer modelled risk-only reports means there is greater opportunity to pass, wherever possible, avoiding false positives that lead to delay and extra costs - and even lost sales.

Being able to combine the best environmental data with expert consultancy ultimately enables conveyancers to provide the most thorough guidance to client, while maximising passes and ensuring clients are reliably informed and confident of the information being presented. It also maximises the chances of progressing a transaction in an efficient and compliant manner. With unseasonal and often extreme weather conditions

continuing to occur, it is important that the correct level of due diligence is undertaken before any transaction completes to comply with the Law Society’s Flood Practice note: in my opinion, it doesn’t pay to leave flooding to chance, but instead is the duty of conveyancers to deliver clear advice upfront. And, with today’s consultantled reports, it means you can do this with confidence – and without the need to acquire an environmental qualification to do so. https://www.landmark.co.uk/ landmark-legal/riskview * https://www.theguardian. com/environment/2015/mar/25/ one-in-six-uk-homes-risk-fromflooding-mps-report

Current Flood Risk

On review, while the data sources used in both reports were similar, the automated nature of the standard report meant that the proportion of the site at risk was not investigated. The consultant-led report on the other hand was able to establish that the only area of risk is was in the far northern corner of the site and that defences made in the wider area by the Environment Agency have in fact risked the area to Low. A partner for the property lawyers was quoted as saying: “This was a good example of an automated search result being unhelpful and positively misleading, as the search result is based on manual review of the data and its further review on the discrepancy being raised confirmed it could reduce the risk, as the last instance of flooding affected only 0.5% of the site.”

Hertfordshire Law Society Gazette