Herts Law Society Magazine Issue 42 Spring 2019 by EPC Studio

issue 42 Spring 2019

Hertfordshire Law Society Gazette

Herts Law Society Annual Dinner

Back to Hatfield House! The Old Palace, 6th June 2019 Details on page 13

Also this issue: • High Sheriff's Lecture – The Social Role of Law & Lawyers • The Cost of Law • Justice at what cost? • A Law for Cohabitants • Probate & Trust Committee • The Future of ADR and much more...

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Contents

Hertfordshire Law Society Gazette

Contents issue 42 Spring 2019

20 What the inheritance tax incentive means to charities

Council Members for 2019

The Cost of Law, My Journey

From the President

Update from the Law Society

A Law for Cohabitants

Annual Dinner 2019

Data Protection and Brexit

14 Expert witnesses

Justice, at what cost?

18 HLS Probate and Trust Committee

The Great Legal Bake

20 Government to reintroduce ‘Probate Death Tax’

24 The rise of surrogacy and the need for DNA testing 28 High Sheriff’s Lecture 30 All change (again!) for the SRA Accounts Rules

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Published: Spring 2019 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

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

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Council Listings

Council Members 2019 President Judith Gower Hertfordshire County Council (Hertford) Local Government

Members Robert Bedford Machins Solicitors LLP (Luton) Employment

Vice President Neil Johnson HRJ Foreman Laws (Hitchin) Civil Litigation Hon Secretary and Treasurer Claire Sharp Debenhams Ottaway (St Albans) Private Client Immediate Past President Attia Hussain Crane & Staples (Welwyn Garden City) Family

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

(From January 2019 until 31 December 2020)

Penny Carey University of Hertfordshire (Hatfield) Academic

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

Jeremy Chandler-Smith JCS Solicitors (Codicote) Sole Practitioner

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

Steven Hamilton Taylor Walton LLP (Harpenden) Private Client Jessica Moseley Debenhams Ottaway (St Albans)

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

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21/12/2018 11:43

Hertfordshire Law Society Gazette

Editorial

From the President... By the time you read this I will have attended the first meeting of the year of Southern Area Association of Local Law Societies (SAALS), the High Sheriff’s Lecture at the University of Hertfordshire entitled “The Social Role of Law and Lawyers” given by James Palmer Chair and Senior Partner of Herbert Smith Freehills and also, Peterborough and District Law Society’s annual dinner. I February I met with our Law Society Relationship Management Jaymi Thakrar to discuss how the Hertfordshire Law Society and the Law Society can work together. The government is proposing to hike probate fees from a current flat fee of £215 (or £155 if done by a solicitor) to a sliding scale of fees ranging from £250 to £6,000 depending on the value of the estate.

Immediate past President Attia Hussain presenting the current President with the Chain of Office.

The Law Society believes the dramatic increase in fees amounts to a stealth tax. The fee increase is disproportionate, and it is unfair to expect the bereaved to fund or subsidise other parts of the court and tribunal service, particularly in circumstances where they have no other options but to use the probate service. More information can be found at https://lawsociety.e-activist. com/page/37869/action/1?locale=en-GB Our annual dinner is on Thursday 6 June 2019 at the Old Palace, Hatfield House, our guest speaker is the President of the Law Society Christina Blacklaws. It will also be the first year that we will award prizes. In addition to the prizes that are always given out for the best law student and the highest LPC score, they are likely to be: • University of Hertfordshire Community Engagement Award 2019 • Pro Bono / Corporate Social Responsibility Award 2019 • Legal Team of the Year 2019 • President’s Award 2019 An email will be sent out when applications are being accepted. Information will also be available on the website. We are always looking for new members of the Council or help generally so if you feel that you can help your local law society please do get in touch with me judith.gower@hertfordshire.gov.uk Judith Gower President Hertfordshire Law Society judith.gower@hertfordshire.gov.uk Twitter: @HertsLawSoc

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

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Articles

A Law for Cohabitants

he question is often asked “do we need a law for cohabitants?” I think the answer has to be “yes”. Between 1996 and 2017 the number of cohabiting couple families increased from around 16,000 to 101,000 which is an increase of around 530%. This number would have been even higher without the legislation for civil partnerships and same sex marriages, which reduced the number of cohabiting couples. A number of Court cases have considered the property rights of cohabitants. In the case of Stack and Dowden in 2007 Baroness Hale of Richmond said “in family disputes, strong feelings are aroused when couples split up. These often lead the parties, honestly but mistakenly, to reinterpret the past in self exculpatory or vengeful terms. They also lead people to spend far more on the legal battle than was warranted by the sums actually at stake. A full examination of the facts is likely to involve disproportionate costs…” There have been various Private Members Bills intended to provide for the rights of cohabitants on separation. These have been introduced in both Houses. For example, in the 2008/09 Parliamentary session, Lord Leicester of Herne Hill (Liberal Democrat) introduced a cohabitation bill (HL 2008-09, Cohabitation NO 2) Bill. Mary Creigh (Labour) sought leave under the 10 minute rule motion to introduce a debate. Lord Marks of Henley on Thames (Liberal Democrat) has introduced most recently the Cohabitation Rights Bill [HL] 201719 which was introduced on 5 July 2017 . Although it is now nearly 2 years since the Bill’s introduction it has not yet made further progress. The next step is a second reading in the House of Lords and a date has yet to be announced. After that, there will need to be a committee stage, report stage and a third reading. The Bill will then have to pass to the House of Commons for the same steps. This Bill is not intended to provide for cohabitants the same provision as exists

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for married couples currently under the Matrimonial Causes Act 1973. The overview of the Cohabitation Rights Bill states its purpose which is to “establish a framework of rights and responsibilities for cohabitants with a view to providing basic protection: a) In the event of their ceasing to live together as a couple for reason other than death; b) In the event of the death of one of them; and c) For the purpose of enabling the life of either of them to be insured by or for the benefit of the other for the benefit of a relevant child.” The Act defines cohabitants, former cohabitants and relevant children If this Bill becomes law, it will enable a former cohabitant to apply to the Court for a financial settlement. The Court have to consider the facts alleged by both parties and the application has to be made before the end of 24 months from the date the cohabitation ceased unless there are exceptional circumstances. The Court are able to make a financial order if they are satisfied that the respondent has retained a benefit, or the applicant has an economic disadvantage. The Court will be able to consider “qualifying contributions” to include financial contribution and other contributions made by the applicant during their shared lives for the welfare of members of the family. The discretionary factors differ from those applying to married couples but include some of the provisions. The Court have to consider:1. The welfare, whilst a minor, of any child of both parties who has not attained the age of 18. 2. The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future (including any pension allowance or benefits paid or to be paid to either party or the eligibility of either party for a pension, allowance or benefit).

3. Financial needs and obligations which either of the parties has or is likely to have in the foreseeable future. 4. The welfare of any child who lives with or might reasonably be expected to live with either party. 5. The conduct of each party if, but only if, it is of such a nature that it is inequitable to disregard it. 6. The circumstances in which the applicant made any qualifying contributions, in particular if the respondent shows that the applicant made such contributions despite the respondent’s express disagreement that it should be made. The Court, in considering the discretionary factors above give first consideration to point 1, which is the welfare of a minor child. If a couple have not had children, they will not be able to make such an application if they have not lived together as a couple for a continuous period of 3 years or more. This gives opportunity for couples who are seeing if it works out for them to live together to end their relationship within that 3 year period without any obligation of one to the other. If the Court are satisfied the requirements have been met they can make orders which include payment of a lump sum, transfer of a property, property settlement, sale of property and pension sharing. At the moment cohabitants have no access to pension sharing even in circumstances where it may be the only resource. The Bill provides for opt-out agreements and sets out the conditions for an opt-out agreement to meet the required criteria. Having regard to all the relatively recent legislative changes for same sex couples, it does seem to me high time there is a law for cohabitants. Marilyn Bell SA Law (St Albans)

Hertfordshire Law Society Gazette

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Articles

Data Protection and Brexit

Judith Gower , President Hertfordshire County Council (Hertford)

These are the key points from advice given by the ICO. The full article can be found at ico.org.uk/media/for-organisations/documents/2614365/leaving-the-eu-6-steps-to-take-final.pdf

Leaving the EU – six steps to take

1. Continue to comply

Continue to apply GDPR standards and follow current ICO guidance. If you have a DPO, they can continue in the same role for both the UK and Europe.

2. Transfers to the UK

4. European operations

If you operate across Europe, review your structure, processing operations and data flows to assess how the UK’s exit from the EU will affect the data protection regimes that apply to you.

R eview your data flows and identify where you receive data into the UK from the EEA. Think about what GDPR safeguards you can put in place to ensure that data can continue to flow once we are outside the EU.

5. Documentation

3. Transfers from the UK

6. Organisational awareness

Review your data flows and identify where you transfer data from the UK to any country outside the UK, as these will fall under new UK transfer and documentation provisions.

Review your privacy information and your internal documentation to identify any details that will need updating when the UK leaves the EU. Make sure key people in your organisation are aware of these key issues. Include these steps in any planning for leaving the EU, and keep up to date with the latest information and guidance.

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Articles

Justice, at what cost?

e are all subject to the rule of law. It follows that all must have access to justice and justice must be provided to all. Justice is provided through the judicial branch of the state. The effectiveness of the judiciary is wholly dependent upon the resources provided by the state. In December, 2017, Jerry Hayes, prosecuting barrister in the case of Liam Allen spoke of a justice system which was “not just creaking but about to croak”. Whilst Jerry Hayes was speaking of the criminal justice system, the whole court system is now under such strain that justice is in jeopardy. Statistics produced by the Institute of Fiscal Studies show that overall spending on public will have reduced by 40% in the decade up to 2020 with significant reduction in the level of expenditure on welfare, health and justice. Whilst cuts to the public funding has impacted upon all aspects of the justice system, “austerity” has not only reduced the direct funding of the courts but also narrowed access to publicly funded legal representation. In November 2017 the previous Justice Secretary, James Liddington, explained that the cost-cutting reforms, 'were founded on delivering better value for money for taxpayers by reducing the cost of the scheme and discouraging unnecessary and adversarial litigation, while ensuring that Legal Aid continues to be available for the highest priority cases, for example where life or liberty is at stake, where someone faces the loss of their home, in domestic violence cases, or where their children may be taken into care'. Legal Aid was introduced alongside the NHS in 1949. At the time, access to justice for all was seen as essential as access to medical care. Legal Aid never gained the same status in the public mind as the NHS and has been an “easy target” for austerity. Doctors and Nurses are respected and valued whereas lawyers are not. We need look no further for an example than the headline describing the most senior judges in the land as “enemies of the people”.

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

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into effect in 2013. Public spending on Legal Aid has been cut by £450m a year. By removing many civil and private law children and family cases from the scope of Legal Aid, the proportion of litigants appearing before the civil and family courts without legal representation (litigants in person) has increased substantially. Figures published earlier this year show that cases in the family courts where neither party had legal representation increased to 38% of the total - the highest on record, and up from only 17% before LASPO came into effect 5 years ago. For those who are dependent on public funding for legal representation, the damaging consequences are very real and have directly impacted those couples who have recourse to the Family Court. Statistics reveal the impact to be significant. For the family courts in England and Wales, there has been a dramatic increase in number of couples seeking a divorce up by 18% compared to 2017 (when it fell by 4.9%) and therefore contrary to the long term downward trend in divorce numbers. In the second quarter of 2018 there were 32,230 divorce petitions, the highest figure for the past 5 years. It is entirely proper that parties should be able to represent themselves in proceedings should they wish to do so but law in general and the court process itself is a labyrinth and the removal of public funding for legal representation has led to 80% of family cases now involving at least one party representing themselves, causing additional delays in the family justice system. At the same time 126 court premises in England and Wales have been sold off since 2010 with a further eight proposed court closures announced in January. Efforts are being made to make the family courts more “user friendly”, e.g. the simplified divorce petition introduced in September, 2017 and the new online divorce pilot introduced in May, 2018. It is envisaged that the divorce process will become a purely administrative and online procedure. The creation of the single Family Court

also saw the introduction of the regional divorce centres. The Bury St Edmunds Divorce Centre covers the work previously done by 45 divorce county courts and deals with all divorces issued from the London and South East region, an area comprising 17m people. Bury St Edmunds is now the largest centre in the UK, dealing with 40-45,000 divorce petitions a year - around 45% of the total. When first launched, the divorce centre was to provide a turnaround of 48 hours. Now, under-funded and understaffed, they have a backlog of 48 days. The Family Procedure Rules, when the courts have the resources to implement them, provide a “Rolls Royce” service, an example of which is the financial dispute resolution appointment (FDR), a forum subject to legal privilege where parties have the benefit of a measured opinion from an experienced judge of the likely approach of a court were the dispute to proceed to a full trial. Assisted by this guidance, the parties are expected to use their best efforts to resolve the issues by agreement. All too often, overworked district judges have insufficient time to read the parties’ position statements let alone the hearing bundles and are unable to provide the judicial support the parties desperately need. There is now often a six month delay or more between the first directions appointment and financial dispute resolution appointment. One result is the rise of the private FDR as an alternative to the court system where parties can afford the cost. Likewise, family law arbitration is preferable to determination of disputes in the family court. A private venue is a more dignified forum for resolution of issues arising upon the breakdown of a private relationship than any worn down waiting area or cramped court consultation room. Even so, the take up of family arbitration has been slow. I can only think that cost is the reason. Generally, the drive toward non-court based dispute resolution has moved from an ideal to a necessity and we are at risk of developing a two-tier system. The solution is properly resourced justice system. Jeremy Chandler-Smith JCS Solicitors

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Charity

The Great Legal Bake 25 February – 1 March 2019 Teams from across the Hertfordshire Legal community took part in the annual Great Legal Bake 25 February – 1 March 2019, in aid of the Eastern Legal Support Trust (ELST), which raises funds for free legal advice services. The London Legal Support trust reports that for the poorest and the most vulnerable people in our community, access to justice is out of reach. Free legal advice makes a huge difference to their lives.

Beautiful luxury cupcakes made by Tom Axon, HJLD

In recent years, poverty has increased and support services have decreased while funding for humanitarian and social welfare legal advice has reduced dramatically.

We congratulate all those who have baked to raise much needed “dough” to support the fantastic work of legal advice charities such as the CAB. Throughout the week of the event we have seen bakers across the country make an array of delightful treats including cakes, cupcakes, flapjacks, brownies and rocky road! Attia Hussain (immediate past-president) Crane & Staples Solicitors #charitytuesday #raisesomedough #HertsLawSoc

“Greatest Fictional Lawyer”, Tia Hussain , HLS

See some of our favourite legal themed creations from around the country

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“Gig Economy” cake, Lizzy Russell, HJLD

Hertfordshire Law Society Gazette

Articles

The Cost of Law, My Journey 1.

Lizzy Trueman, Trainee Solicitor Family Department, SA Law LLP

Cost of Qualifying

In early February the Law Society Gazette published an article on the cost of law school tuition. It stated that the approximate total cost incurred to qualify as a solicitor is £70,000 to £80,0001. You would assume that many people would be deterred from

a career in law, especially considering that after such great costs are involved the recommended trainee salary is a maximum of £22,1212, and the average paralegal salary is £17,500. However, in 2017-2018 over 30,000 students applied to study law

at undergraduate level in England and Wales3. Having recently finished the LPC I can understand the attraction to the legal field, but with only 5,719 training contracts registered last year4, the competition to succeed in law is tough.

A Hattersley, 'Weighing the cost of qualification' (Law Society Gazette, 4 February 2019) <https://www.lawgazette.co.uk/commentary-and-opinion/ weighing-the-cost-of-qualification/5069108.article> accessed 1 March 2019

Law society, 'Recommended minimum salary for trainee solicitors' (Law Society, 4 February 2019) <https://www.lawsociety.org.uk/support-services/ advice/articles/recommended-minimum-salary-for-trainee-solicitors/>accessed 1 March 2019

The Law Society, 'Entry Trends' (The Law Society, 18 June 2018)<https://www.lawsociety.org.uk/law-careers/becoming-a-solicitor/entrytrends/>accessed 1 March 2019

My Journey to the Legal Field

With doubts now being raised regarding whether the cost of qualification is worth it, when asked to write this article I thought I should share my own experience in entering the legal field.

school, I would say I did not perform as well as my fellow students that focused on a career in law from an early stage. I realise now that was a crucial time for early opportunities to get a foot in the door via work experience.

I started university studying Business Economics and later transferred to Law. Having completed my undergraduate degree, I left university with over £36,000 of tuition fee debt, only to incur a further tuition cost of £16,000 to participate in the LPC.

Not having many legal connections to help me obtain the necessary legal experience was rather challenging. I had no lawyers in my immediate family and ended up asking everybody I knew with a connection to introduce me, and attended every possible legal event I could. However, trying to go to events became difficult as I had to work full-time to support my studies financially. For example, I have a fantastic memory of

Upon starting the LPC I was constantly worried about my job prospects. Unfortunately although I performed well in

I am now fortunate to have a training contract at SA Law, who have been incredibly supportive and have given me an unbelievable learning opportunity. I still have thousands of pounds in tuition debt to pay off, but in my opinion the knowledge I’ve gained throughout my academic career and the experiences I’ve had in my so-far-short legal career have been worth every penny. Even though the cost is high to qualify, and at times can be incredibly difficult, I would not change a thing about my journey into law.

It’s Not the Only Way

Nowadays there are numerous methods to join the legal profession other than the “classic” way as I have done, such as CILEX5 and legal apprenticeships6 .

going straight from an 8-hour night shift at McDonald’s to a morning event at Clyde & Co before heading to university for the day.

However regardless of your journey into law, competition is tough within the legal field with high costs incurred for every route. I therefore recommend for all those

who aspire to a career in law to focus on the learning experience and enjoy growing into the best version of yourself.

CILEx, 'Home' (Chartered Institute of Legal Executive) <https://www.cilex.org.uk/>accessed 1 March 2019

J Smith, 'Law Apprenticeships' (Prospectus, March 2018)<https://www.prospects.ac.uk/jobs-and-work-experience/job-sectors/law-sector/lawapprenticeships> accessed 1 March 2019

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

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Articles

Update from the Law Society 1. Last year Justice Week took place w/c 29 October. I am waiting on confirmation for this years’ date, but for now I hope members will find information on our webpage useful. https://www.lawsociety.org. uk/policy-campaigns/justice-week/

https://www.lawsociety.org.uk/ policy-campaigns/campaigns/ solicitor-brand-campaign/.

• Practice notes

• Advice

7. Women in Leadership in Law:

• Cyber Security Information Sharing Partnership (CiSP) The NCSC’s Cyber Security Information Sharing Partnership (CiSP) provides a secure, confidential environment online to exchange cyber threat information in real-time with industry and government counterparts. There is a dedicated legal sector ‘node’ (group). Here is how to register:

• Details of the project to date and the toolkits developed for the profession can be accessed at https://www.lawsociety.org. uk/support-services/practicemanagement/diversity-inclusion/ women-in-leadership-in-law/ (top right hand corner of the page).

• Details of the international symposium on 20 & 21 June can be accessed at https://events. lawsociety.org.uk/ClientApps/ Silverbear.Web.EDMS/public/ default.aspx?tabId=37&id=2292 &orgId=1&guid=b3b91d15-a26349fc-bd02-dc0b19efa8b6.

2. SQE We have published a detailed overview of the SQE which can be accessed at https://www.lawsociety. org.uk/law-careers/becoming-asolicitor/sqe-overview/. 3. Ethical scenarios

ur interactive ethical scenarios O can be accessed at https://www. lawsociety.org.uk/support-services/ ethics/ethical-scenarios/

4. Brexit We have produced some guidance for members to help prepare for ‘nodeal’ scenario. This guidance will be of use to all firms, especially in relation to data. Please do feel free to share this more widely https://www. lawsociety.org.uk/support-services/ brexit-and-the-legal-sector/

6. Solicitor Brand Campaign The 2019 campaign has launched and we are looking for members and their clients to participate with us. Further information on how you can get involved and resources available can be accessed at

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ii. Firstly, register your organisation. Click on ‘register your organisation’ under the section ‘Not yet a member?’ Here are the sponsor details you need for the registration form:

iii. Sponsor name: Tim Hill

iv. Sponsor organisation: The Law Society

v. Sponsor email address: tim. hill@lawsociety.org.uk

vi. From there, the NCSC will notify Tim of your application, which he will approve and you will be notified by email. Once you have registered your organisation additional staff at your firm can create an account via the link:

8. Technology

5. Excellence awards Winners of Local Law Society awards can be passported into the long list for our Excellence Award.

i. Go to https://www.ncsc.gov. uk/cisp

• We recently delivered a webinar ‘Blockchain for lawyers’ – which can be accessed through the professional development centre. • We have partnered with Barclays Eagle Labs to set up a tech incubator. Further information about this can be accessed at https://www.lawsociety.org.uk/ news/stories/law-society-partnerswith-barclays-eagle-labs/.

9. Cyber Security We have some dedicated resource available on our website in relation to cyber security https://www. lawsociety.org.uk/support-services/ practice-management/cybersecurityand-scam-prevention/cybersecurityguidance-and-advice/. This includes:

• A general news digest email which you can sign up to.

vii. https://www.ncsc.gov.uk/cisp/ register/individual

Bhavni Fowler Relationship Manager

Hertfordshire Law Society Gazette

AGM Notice

Annual Dinner 2019 The Old Palace, Hatfield House Thursday 6th June 2019 Save The Date!

We are delighted to confirm that the Hertfordshire Law Society 2019 Annual Dinner will once again take place in the beautiful Tudor Old Palace at Hatfield House We look forward to welcoming you, your colleagues, clients and guests at the Societyâ&#x20AC;&#x2122;s popular annual summer event. More information will be available in the next few weeks. If you would like or need further information at this stage, or if you would like to reserve a table please contact Stacey Balkin at: ssb@debenhamsottaway.co.uk

Hertfordshire Law Society http://www.hertslawsoc.org.uk/

13 â&#x2013;˛

Expert Witness

Expert witnesses – impartiality and balance I n two recent but very different cases, there have been unusually strong criticisms of expert witnesses. They highlight the need for any expert witness to be seen to be independent and impartial and for their evidence to be balanced and not one-sided.

Evidence from expert witnesses plays a crucial role in determining many disputes in different fields. For example, in personal injury cases, evidence from a medical practitioner will be required. Or in a commercial action where there are technical issues in question, the court may need evidence from an expert in the relevant field. Without experts to explain the medical, scientific or technical matters, a judge may be unable to understand properly significant aspects of the case and make appropriate findings about them. In our adversarial system of litigation, it is for each party to choose and instruct their own experts and adduce evidence from them. A party will naturally want their own expert’s evidence to support their position. Therefore, a party will generally only produce expert reports and call as witnesses, experts whose evidence is going to help that party’s position. However, if an expert is not impartial or gives evidence that appears one-sided, the evidence, although supportive of the party’s position, may turn out to be little or no worth, as demonstrated by two recent cases. Armstrong v ERS Syndicate Management Ltd – independence and impartiality The first case, Armstrong v ERS Syndicate Management Ltd, was a low value personal injury claim. The pursuers relied on the evidence of a medical expert with respect to the extent of their injuries. They were awarded damages based on that evidence. The defenders appealed, arguing that the expert evidence should have been found inadmissible or, alternatively, should have been given no weight. The main reason was that the expert’s independence and impartiality

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was questionable because he had agreed to act of contingency basis, meaning that he would only get paid if the claims were successful. The Sheriff Appeal Court had little hesitation upholding this appeal and finding the expert’s lack of independence and impartiality rendered their evidence inadmissible. This resulted in the pursuers losing those elements of the damages awarded to them that were reliant on the expert’s evidence. Agilisys Ltd v CGI IT UK Ltd – balanced approach The case of Agilisys Ltd v CGI IT UK Ltd was a very different type of case. A commercial action in the Court of Session, it concerned the termination of a subcontract for the provision of information technology services to a significant public sector client. The parties, the main contractor and sub-contractor, were in dispute about a number of issues that boiled down, broadly speaking, to which party was in breach of its obligations and responsible for various delays. Each party relied on the evidence of an expert witness. Neither expert’s independence was in question. However, the judge, Lord Bannatyne, formed a markedly different view of the two experts and their evidence. Lord Bannatyne criticised the evidence of CGI’s expert witness in unusually direct terms. He stated: “I have come to the view that his evidence was onesided. His approach was I believe not balanced. In addition for various other reasons I believe his evidence was not acceptable.” Over the subsequent eight pages of his opinion, the judge set out numerous matters that had led him to that conclusion. He highlighted, in particular, the expert’s failure to consider whether CGI might have breached any of its obligations. It is also noted that, on one occasion, when faced with the realisation during cross-examination that part of his evidence had not in fact helped CGI, the expert switched from one

position to another. This was described as “highly unimpressive in the context of someone who is being offered as giving expert evidence.” By contrast, Lord Bannatyne noted that Agilisys’s expert “looked at the responsibilities of both CGI and Agilisys” and was “prepared to make criticisms of Agilisys”, which he said were “examples of the essential balance in her approach”. Given his contrasting impressions of the two experts, it is unsurprising that, where their evidence differed, the judge largely accepted the evidence of Agilisys’s expert and rejected that of CGI’s. Conclusions Expert evidence is critically important to many cases. When that is the case, parties need to make sure they have experts whose evidence supports their case. However, as these two cases show, it is not enough to have an expert who will give helpful evidence. The expert must be independent and impartial and their evidence should be balanced and not one-sided. Otherwise, the expert’s evidence may be given little credence or even, if the expert lacks independence, be held inadmissible. Ben Zielinski Senior Associate, Shoosmiths T: 03700 868127 Ben is an associate in our dispute resolution and compliance team. Ben specialises in commercial disputes and is based in our Edinburgh office. He is qualified as a solicitor in both Scotland and England & Wales. Ben advises on a wide variety of commercial disputes including, in particular, information technology and energy sector matters. Disclaimer The above text applies to Scotland. This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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

T: 01908 305127 M: 07968 013 803 E: orthopaedicexpert@gmail.com W: www.shoulderelbowhand.org 61 Church End, Biddenham, Bedford MK40 4AS

Sudhanshu Chitale CONSULTANT UROLOGIST Mr. Sudhanshu Chitale has been in the ﬁeld of Urology / Andrology for over 20 years and is founder of Private Urology London Ltd. He has had comprehensive training in all subspecialties of Urology. He is a highly experienced Urological Surgeon dealing with both adult and paediatric cases and has had excellent patient outcomes.

SIMON LEVY ASSOCIATES are an independent firm of chartered Building Surveyors, based in Borehamwood, Hertfordshire. We have wide ranging experience in matters relating to both residential and commercial property and cover a large geographical area including Greater London, surrounding Home Counties and the South East. The firm was established in 1986 and has become one of the largest independent building chartered surveyors practices in Borehamwood Hertfordshire. We offer a comprehensive range of services including: ● FuLL buILdINg ANd STruCTurAL SurVEYS ● ExpErT wITNESS ● dILApIdATIONS

To date, Sudhanshu has performed up to 20,000 Urological procedures. He developed specialist interest in the ﬁeld of Andrology and Hypogonadism, which remain his areas of clinical research interest.

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Sudhanshu held Honorary Senior Lecturer position at the University of East Anglia (UEA) Medical School, Norwich and currently is Honorary Senior Lecturer at the University College London (UCL) Medical School. Sudhanshu has over 80 publications in peer-reviewed journals to his credit and numerous presentations both at national and international scientiﬁc meetings. He is on the Reviewers’ panel for 17 peer-reviewed journals including Journal of Endourology, Journal of Urology, World Journal of Urology, and BMJ Case Reports. For further information, please get in touch.

CONTACT Email: info@simonlevy.net Tel: 020 8207 6100

Mr. Sudhanshu Chitale FRCS(Urol), FEBU, DNB(Urol), Diploma Urology (UCL), FRCS(Eng), FICS, MS(Gen Surg), MBBS

Mob: 0774 8944 385 Tel: 01603 757 681 E: chitalenorwich@aol.com

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10/01/2019 Simon Levy14:42 Associates.indd 1

21/03/2019 17:13

Expert Witness

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David Bunker is a member of the Academy of Experts and is an experienced mediator, arbitrator and a member of the President’s Appointments Scheme panel. He is appointed by the Institute of Chartered Accountants to deal with disputes referred to it. With a wealth of in-depth knowledge and experience David is ideally suited to advising and guiding your company, whether it be expansion or resolving a difﬁcult business issue, David Bunker can assist you on your journey.

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Hertfordshire Law Society Gazette

Professor Denise Syndercombe Court FIBMS, CSci, DMedT, MRSB, CBiol, MCSFS, PhD

Professor of Forensic Genetics Professor of Forensic Genetics specialising in identification of people using DNA and other genetically inherited factors. Experienced in both criminal and civil matters, providing reports for the legal profession dealing with human identification and kinship. She runs an ISO17025 accredited laboratory and has provided several hundred reports in legally aided criminal matters, mainly but not exclusively, for defence purposes, over the last twenty years. Professor Syndercombe Court is an accredited Expert Witness, an Advanced Blood Pattern Analyst and has a Diploma in Forensic Statistics. Her memberships include: • British Academy of Forensic Sciences • International Soc for Forensic Genetics • International Association of Blood Pattern Analysts • Affiliate of the Royal College of Physicians’ Faculty of Legal Medicine • Member of Chartered Society of Forensic Sciences

Back in 1993, renowned psychologist Professor Hugh Koch had the vision of a company that would provide service levels unprecedented in the medico legal industry. A quarter-century later, with Hugh at the heart of our dedicated team, HKA has grown to become the largest and most respected medico legal operation of its kind in the UK. UK expert witness directory With 50 clinical psychologists operating from 151 UK clinics, HKA’s comprehensive network ensures location is no barrier to justice. A dynamic medico legal team HKA has talent and passion at every level, from the dynamic in-house team to our independent expert witnesses. Strong values & ethics HKA holds its team to the highest ethical standards. In-house staff treat each case with respect and confidentiality, while every clinical psychologist and orthopaedic surgeon has a clean HCPC and BPS record.

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PAUL SMITH 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 • Aesthetic surgery Hand Surgery reports can be supplemented by a full hand therapy assessment which is comprehensive and repeatable at intervals documenting progress. Using the internationally accepted – Guides to the Evaluation of Physical Impairment The IBSN Number for Guides to the Evaluation of Permanent Impairment is 0-89970-433-6 – a detailed and internationally standardised percentage disability can be rated. Instructions have been received from plaintiﬀ and defendant solicitors in equal numbers.

www.paulsmithfrcs.co.uk Bishopswood Hospital, Rickmansworth Road , Northwood, Middlesex HA6 2JW t. 01923 828 100 f. 01923 844 849 e. paul@paulsmithfrcs.co.uk www.paulsmithfrcs.co.uk Secretary: 01923 828 100

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Articles

Hertfordshire Law Society Probate and Trust Committee Minutes of the Meeting held on 4th December 2018 at the offices of Debenhams Ottaway, St Albans. Present: David Bird Chairman – Crane & Staples Steven Hamilton Taylor Walton Eileen Ismay Crane & Staples Ruksana Kaskar Hamilton Davies Claire Sharp Debenhams Ottaway Nicholas Turner Debenhams Ottaway Apologies were received from Angela Lever and Richard Horwood. 1. Minutes of the Meeting held on 11th September 2018 These were approved as drawn. 2. Requirement to publish solicitors’ fees All Committee members agreed that it was difficult to draw up meaningful information in this context, given the many different considerations in individual estate administrations. It was also agreed that the guidance which had been provided was not hugely helpful. While most Committee members had provided examples of fees in particular (normally straightforward) cases, it was agreed that these are not the norm. Generally Committee members find that the more straightforward administrations are carried out by others and solicitors tend to receive the complicated or difficult cases. It was also agreed that going forward, it will become clearer exactly how we are required to comply with the new rules. 3. Proposed increase in Probate Registry fees Committee members were not clear as to the timing of any increases in fees, or whether the increases can be introduced by statutory instrument or alternatively will need to be included in tax legislation. While the level of fees is not so high as under the previous proposals, it was noted that the fees will again be based on the ‘slab’ principle, leading to very sudden

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large increases once the value of an estate passes a threshold. For example, an estate worth just over £500,000 would bear fees over three times those applicable to an estate worth just under £500,000. 4. Applications for Grants of Representation – new Probate Registry Rules It was noted that while the new Statements of Truth are being introduced, for the time being solicitors can continue with the current arrangements preparing Oaths for Executors to swear. While the position was not clear, it was agreed that it is likely all Oaths (not just those where probate is applied for but also affidavits of due execution etc) would also be phased out in favour of the new Statements of Truth. It was agreed that while the Oaths are being dispensed with, it is still important to stress to clients when they are signing their Statements of Truth that to include knowingly any untruths will be a serious offence.

Of course in cases where the charities do receive a share of residue then they would bear their proper share of administration expenses. 6. Capital Gains Tax accounting rules The Committee was alerted to the changes from April next year regarding the payment of capital gains tax within a very short time after the sale of properties. It was not clear whether this would also arise on the sale of other assets. Payments would be made on account, the capital gains tax being adjusted after the end of the tax year when the full extent of any gains or losses during that tax year can be determined. 7. Electronic Signatures Proposals for ‘electronic Wills’ were noted as were the obvious difficulties in preventing fraud and also difficulties in ensuring that electronic records were kept securely for decades.

5. Legacies to Charities in Wills One Committee member raised the issue of the usual formula included in Wills to ensure that charities receive at least 10% of the ‘baseline amount’, securing a lower rate of Inheritance Tax on the chargeable gifts. The question was raised as to the calculation of the amount payable to the charities, taking into account changes in the value of the estate during the administration period.

Also noted was Caroline Bielanska Law Commission’s electronic execution Attorney.

the request from with regard to the consultation on the of Lasting Powers of

It was agreed that under the usual formula the benefits for the charities amount to a pecuniary legacy. The amount of the legacy is calculated with reference to the ‘baseline amount’ and would need to be revised if the figures for Inheritance Tax purposes change, as they often do, as the estate administration proceeds. However once the Inheritance Tax is settled, the amount of the legacy is then fixed and needs to be paid without deduction. It was agreed that since the charities will not be benefitting under this formula from residue, no estate administration expenses can be deducted from their shares.

“With regard to probate registry fees, the Government intends the increases to go through on 1st April. However, protests continue particularly as to the manner of the introductions of these new fees, since most lawyers working in this field are of the view that since the level of the fees goes far beyond meeting the cost of the service, this amounts to a new tax. As such, an increase of this size must go through Parliament. Also STEP (the Society of Trust and Estate Practitioners) have pressed for the new fees, if they are introduced, to apply to deaths after 1st April rather than to applications to the Probate Registry after that date”.

8. Date of Meetings during 2019 It was agreed that Eileen Ismay would update Committee members with suggested dates and also a suggested venue for the March meeting.

Hertfordshire Law Society Gazette

Help give them the future they deserve

Making Hertfordshire a better county for everyone Hertfordshire Community Foundation supports Hertfordshire’s most vulnerable residents and community groups by connecting philanthropy to community needs and opportunities.

Hope for Children is a local charity with a global reach. We help children in extreme poverty to go to school, stay healthy and get the best chance of a fulfilling adulthood.

Using our specialist knowledge we work with professional advisers to provide strategic advice on local giving. Together we ensure your client’s legacy or charitable giving beneﬁts local communities for generations to come.

By leaving a gift in your Will, you can give children the hope of a future free from poverty and lost opportunity. Please call to find out more. We would love to hear from you. Hope for Children, Mark Road, Hemel Hempstead 01442 234 561 www.hope-for-children.org

To ﬁnd out more call us on 01707 251351 email helen.gray@hertscf.org.uk or visit www.hertscf.org.uk Charity no. 1156082

Hertfordshire Community Foundation

Will you remember the horses at Redwings Horse Sanctuary? Remember Redwings in your Will and save the lives of hundreds of horses in desperate need for years to come. Call 01508 481030 or email legacies@redwings.co.uk to find out how to leave a legacy today.

Thank you

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If you love horses, remember them!

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Make a difference to the most disadvantaged in our society with the trip of a lifetime. Please leave The Jumbulance Trust a Gift in your Will.

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Articles

Government to reintroduce ‘Probate Death Tax’

he Government has decided to reintroduce its proposal to increase probate fees, very substantially. Probate fees are the charges imposed by the Probate Registry for the issue of a Grant of Representation, usually a Grant of Probate, which is required to deal with the estate of a deceased person. This is ostensibly designed to fund the current comprehensive reform of the Courts and Tribunals system. The Government first tried to impose a probate fees hike in 2017 but the proposal was dropped when the Prime Minister called the snap general election. The present basic fee for obtaining a Grant of Probate is £215 or £155 if the application is lodged by a solicitor. This flat fee applies for all estates with a net value in excess of £5,000. The proposed fees will be based on the following scale which depends on the value of the estate in question:

Value of Estate Up to £50,000

New Fee £0

£50,001 to £300,000

£250

£300,001 to £500,000

£250

£500,001 to £1,000,000

£2,500

£1,000,001 to £1,600,000

£4,000

£1,600,001 to £2,000,000

£5,000

Over £2,000,000

£6,000

This proposals will result in a 3771% fee increase for an estate paying the maximum £6,000 fee, despite the fact that the work that the Probate Registry undertakes when administering an application for a Grant of Representation doesn’t change dependent on the value of the estate; the process is the same for a Grant in a £50,000 estate as it is on a £2 million estate. It is therefore difficult not to see this new fee structure as a form of ‘tax’. The Ministry of Justice has advised that

the additional revenue from these fee increases will be invested in the Courts and Tribunal Service, as a whole, and will enable the Courts and Tribunal Service to be modernised and updated but critics have pointed out that it is unfair to expect the bereaved to fund other parts of the Courts and Tribunal Service. Another potential issue is that probate fees need to be paid up front and if people do not have the means to do this or there are no funds available in the estate that can be released before the Grant of Representation has been obtained, then the Executors may have to turn to loans to cover these costs (which will likely incur further significant expense for the estate). It is anticipated that the changes are due to come in to effect in April. Steven Hamilton is a Partner and Private Client solicitor at Taylor Walton Solicitors Steven.hamilton@taylorwalton.co.uk

What the inheritance tax incentive means to charities 1

Inheritance Tax affects a small proportion of estates and yet the tax incentive for charitable estates has a huge impact. Why does it matter so much and, in light of the ongoing review of Inheritance Tax, what is being done to protect the current environment for gifts in wills?

Rob Cope, Director of Remember A Charity, says: “It’s a common misconception that tax relief is all about financial incentives. No matter how generous a tax break is, it’s rarely the sole or even primary reason to leave a charitable legacy. Ultimately, people give because they care and are inspired by the cause. Because they want to leave a positive contribution on the world when they are gone.” Charities are increasingly reliant on gifts in wills Here in the UK, the public gives over £3 billion in legacy donations annually. More charitable services are being funded through gifts in wills and the number of supporters is on the rise. In what remains a challenging fundraising environment, this income has never been so important. Currently, we have one of the most encouraging national fiscal environments to promote legacy giving. Charitable gifts in wills are exempt from IHT (charged

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at 40%) and any estates that includes donations of 10% of their value (or above) also benefit from a discounted rate of 36% across the remaining value of the estate.

This framework has had a major impact on legacies, but not always in the way that most people might expect. Yes, research shows the tax relief can be a strong incentive for people to give, particularly for those who lie just over the IHT threshold.1 But the real issue here is that tax relief gives solicitors and financial advisers the added impetus to discuss legacy giving with clients. Because there is a tax benefit, legal advisers and Will-writers have a natural entry point for discussions with clients and this has been an important factor in driving behavioural change. Cope adds: “Within this environment – one that normalises legacy conversations and conveys the state’s support for the concept – gifts in wills are becoming so much more commonplace. The tax incentive is working and that’s why it is protected.” Tax incentives at risk The ongoing review of IHT by the Office of Tax Simplification (OTS) is an opportunity to create a more fair and simple system for the public, but it also puts the tax

Source: Behavioural Insights Team 2013

incentive for legacy giving in jeopardy. In fact, a recent proposal from one leading thinktank even suggested that IHT should be abolished altogether with little reference to the impact on charities. While the first OTS report was published shortly before Christmas and focused on how the administrative side could be simplified, it is the next stage that will unveil proposals for how IHT may be structured and what this might mean for the sector. It is impossible to second guess what decisions will be made, but Government has long supported gifts in wills and Remember A Charity is optimistic that future tax policies will continue to encourage and inspire giving. Why is the Inheritance Tax break so important for the nation’s charities? Cope says: “The reality is that the tax incentive serves to encourage and normalise charitable behaviour. It brings legacies front of mind, gets conversations about charitable giving started and helps to communicate just how meaningful a charitable bequest can be. It is hugely important that this incentive is maintained. Charities simply cannot afford to lose any legacy giving incentive, least of all IHT relief.”

Hertfordshire Law Society Gazette

Moorcroft Racehorse Welfare Centre Huntingrove Stud, Slinfold, West Susssex. RH13 0RB

his centre in the south of England was set up to ensure that retired racehorses whatever age, can be retrained to find another career in life. Much care and attention is given to each individual horse and when fully retrained new homes are found. The centre retains ownership for life and visits these horses every 6 months to ensure that all is well.

This charity depends on generous donations and/or legacies from horse lovers. Many horses need a time for rehabilitation due to injury etc and start to enjoy an easier life after their racing careers.

Leave a Gift in your Will to Willow... ...and your legacy will be of creating precious memories for families struggling with the day to day realities of a serious illness. Willow is the only charity in the UK to provide Special Days for seriously ill young adults aged 16 to 40. Founded 20 years ago in Hertfordshire by former Arsenal goalkeeper Bob Wilson and his wife Megs, Willow has provided more than 16,000 Special Days to those who need it most.

“My day was a pivotal turning point in my mental recovery – I felt truly alive” - Sarah

Visits by appointment are welcomed. Please ring Mary on 07929 666408 for more information or to arrange a visit. www.moorcroftracehorse.org.uk

Willow Foundation is a registered charity in England and Wales No. 1106746 and a registered charity in Scotland No. SC045811. It is also a company limited by guarantee No. 5207070. Registered in England and Wales at the above address. VAT registration number: 207666205.

RSPCA Legacies

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This relates to any clients you may have that wish to make a legacy to the RSPCA. Some people who wish to make a legacy to the RSPCA and would like it to be used locally may not be aware that they can specify they would like it to be spent locally by their nearest branch. The RSPCA comprises the national society and numerous branches which are separately registered charities.* This means that people can choose to leave a gift in their Will to the national RSPCA or to their local RSPCA branch but these intentions must be clearly stated. If your client indicates that they wish to leave money to the RSPCA please ascertain if they wish to support their local branch or the national society. If the branch is the intended recipient, please ensure the correct branch charity name and number are specified on their Will. This information can be found on the RSPCA website https://www.rspca. org.uk/whatwedo/whoweare or by calling us at the Hertfordshire East branch on 01462 672278. Leaving a gift in your Will means you can make a lasting impact on animal welfare for many years to come. For more information visit: www.rspca.org.uk/leavingalegacy *The RSPCA comprises a national organisation supported by a network of 162 local branches covering set areas within England and Wales. The national organisation raises funds to run its animal centres and hospitals. The national society also funds the inspectorate team, prosecutions for acts of animal cruelty, education projects, science, research and campaigns. The branches, all separately registered charities, raise their own funds to cover the cost of caring for the animals in their care, which often have come from the inspectors. This includes boarding and veterinary costs and providing financial assistance or low-cost veterinary services to help ensure that animals owned by people facing financial hardship receive essential veterinary care.

Relieving suﬀering and furthering animal welfare

ounded in 1990, the Langford Trust for Animal Health & Welfare supports the University of Bristol School of Veterinary Science at Langford in North Somerset.

Our main objective is to relieve suﬀering and to further animal welfare by promoting the practice, advancement and teaching of veterinary science and fostering public education in animal health and welfare. Financially, the Trust supports the veterinary school through funding for clinical research and equipment and clinical facilities for the treatment and hospitalisation of animals. LEGACIES Please remember the Langford Trust in your will. Because you care about animals in your lifetime, please help us to continue caring about them ever after. Important tax advantages can be gained by leaving part of your estate to a registered charity. FOR MORE INFORMATION OR A CONFIDENTIAL CHAT PLEASE CONTACT THIS OFFICE ON 0117 928 9207 OR BY EMAIL: LANGFORD-TRUST@BRISTOL.AC.UK

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Deliberate Breach of Restrictive Covenants May Not Always Be Forgiven

In light of recent court decisions, Stewart Title’s Commercial Business Development Manager, Robert Kelly, considers how to protect your clients against losses arising from restrictive covenants. A recent decision of the Court of Appeal shows that Courts will give equal weight to the need to uphold contractual rights, like restrictive covenants, and any public interest reasons for releasing covenants. The Alexander Devine Children’s Cancer Trust (“Trust”) v Millgate Developments Limited (“Millgate”) and Others [2018] EWCA Civ 2679 concerned a development of luxury housing by Millgate on unencumbered land, but the planning permission granted required the building of social housing on land which was subject to a restrictive covenant in favour of the Trust prohibiting residential development. Millgate was aware of this covenant and negotiated a variation of the planning permission allowing payment of a commuted sum of £1,639,904 to the planning authority in lieu of the requirement to build the social housing. Millgate then proceeded with the original development and it was only after completing the social housing that they made an application to the Upper Tribunal (Lands Chamber) under s84 of the Law of Property Act !925 (“s84”) to release the covenants. The Upper Tribunal found in their favour saying that the provision of social housing pursuant to a planning permission was in the public interest and that the covenant should be released. The Trust appealed and the Court of Appeal issued its judgment in December 2018 rejecting the Upper Tribunal decision and reinstating the covenants. This means that the Trust can now apply for an injunction requiring demolition of the housing. Lawyers need to take note, as the Court held that: •

the requirement to provide social housing did not automatically mean that the development was “in the public interest”

•

the preservation and enforcement of private contractual rights like the covenant was also “in the public interest”

•

a developer must use the rights granted by s84 fairly and where a prospective application to release covenants could have been made before a development commenced, the Upper Tribunal should consider why a developer chose not to do so

•

where there was an alternative way to allow the planning permission to be implemented (such as by payment of a commuted sum) then this should be taken into account

All of these factors need to be considered when advising a client on how to deal with covenants hindering a proposed development even if planning has been obtained. If there are commercial reasons why a prospective s84 application can’t be made, then consideration should be given to obtaining a Restrictive Covenant Indemnity Policy which will provide cover for the developer, their lenders and any occupiers against losses arising from the enforcement of the covenants in the future. Stewart Title has wide experience underwriting this type of risk and our growing Underwriting Team can be contacted for more information: brokers@stewart.com or 02070107820.

See policy for terms and conditions. Stewart Title Limited is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. Registered in England and Wales No: 2770166. Registered office address: 11 Haymarket, London, SW1Y 4BP.

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The rise of surrogacy and the need for DNA testing S

urrogacy is now often in the news, fueled by both our celebrity culture and by increasing awareness of the possibilities afforded by a plethora of new technologies in assisted reproduction. In fact, surrogacy is part of “fertility tourism” where couples or individuals choose to travel to other jurisdictions with a view to accessing services which may be prohibited, not available or too expensive in their native land. Such treatments are reported to number between 20,000 and 25,000 events per annum worldwide. The desire for a child has developed into a significant business sector and with differing international moral/ethical perspectives, the law has evolved quite differently in different cultures, where attitudes towards surrogacy vary from altruism to pure commerciality. There are several reasons why couple may choose the surrogacy option, including; a) couples who cannot, for whatever reason, have their own children, b) same sex couples desirous of a biological relationship with a child or perhaps more rarely, c) by social choice. In the UK the woman who carries the child and subsequently gives birth to the child is seen as the child’s legal mother. If this surrogate is married or in a civil partnership, their spouse could also be a legal parent of the child. In England at least, surrogacy contracts are not capable of legal recognition, which means the arrangements entered into under a compensated (reasonable expenses only) surrogacy are no more than informal agreements that rely on trust for their execution on both sides. For the legal rights of the child to be transferred from the surrogate to the intended parents (who commissioned the surrogate - notwithstanding that at least one of them may have a biological relationship to the child), an application for a parental order will need to be made within six months of the child’s birth. In doing so, the applicants are asked if they are “a genetic parent of the child”, a fact that can only be established be use of a

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DNA test which is conducted by an MoJ accredited provider, such as Complement Genomics and dadcheckgold. In terms of fertility tourism, the current preferred destinations are those where jurisdictions permit “paid for” gestational surrogacy and the intended parents can gain legal rights over the child. This may either be by gaining direct parental rights or by making use of streamlined adoption procedures. It is the case that DNA testing is often required by the home authorities to prove the parentage of one or both of the donors after overseas surrogacy, by use of either a paternity or maternity DNA test, or both. The Ukraine, Russia and Georgia have liberal laws regarding commercial surrogacy (including for foreigners) and are the current destinations of choice. Indeed, many UK couples are choosing the Ukraine since: • The intended parents of the child are considered to be the biological parents from the conception • The intended parents are specifically named on the birth certificate to the exclusion of the surrogate mother or any donor • The surrogate mother cannot by law keep the child after birth • A donor or surrogate mother has no parental rights over the child and no adoption of the child is required • There are no restrictions on the payments.

intended parents is generally necessary. This can be arranged by contacting us using the details below. The progressive approach of the authorities in the Ukraine, Russian Federation and US has already helped many childless UK couples and the law is highly favourable towards surrogacy in these jurisdictions. For intending parents wishing to go down this route, then appointment of an experienced UK based solicitor and an accredited DNA testing company is essential. Nicola Lowes, LLM and Neil Sullivan, MBA, LLM, PhD www.dadcheckgold.com To discuss DNA testing for a surrogacy case, please call 0191 543 6334 or e-mail: sales@dadcheckgold.com. Complement Genomics Ltd, the provider of the dadcheckgold service, is accredited by the Ministry of Justice as a body that may to carry out parentage tests as directed by the civil courts of England and Wales under section 20 of the Family Law Reform Act 1969.

Types of surrogacy

“Traditional” surrogacy involves insertion of sperm into the fallopian tube of the surrogate mother, who by virtue of using her own egg, is the biological mother of the child. “Gestational” surrogacy, often referred to as in vitro fertilization (IVF), involves implantation into a surrogate of an externally fertilized embryo where the intended parents provide the biological material and of the egg and sperm both, either or neither of which may be from a donor. Importantly, the child and the surrogate mother are biologically independent of one another.

The written and informed consent of all parties and a notarised surrogacy agreement is required (and which can be complex), plus there is the presumption that the intended parents are married, so a translated and notarised copy of the marriage certificate is also necessary. For British parents using a surrogate in the Ukraine it is often more convenient to locally obtain a UK passport for the child once born, although proof of the genetic relationship to one or both of the

C Form C51: Application for a Parental Order (Section 54 Human Fertilization and Embryology Act 2008).

Article 123 of the Ukrainian Family Code (as amended 22/12/2006, No 524-V) and Orders 24 and 771 of the Health Ministry of Ukraine.

Hertfordshire Law Society Gazette

Flood searches more important than ever due to climate change By Jonny Davey, Product Manager at Geodesys

In these days of digitised property information, conveyancers have a wide choice of search reports at their fingertips when considering how to best identify risk for their client’s chosen property. What is surprising, however, is that only about 29% of orders placed with Geodesys include a full flood assessment, meaning a large proportion of homebuyers are unaware of potential flood risk. With a growing population, increased demand for housing, ageing infrastructure and severe impacts on climate change, flooding is a significant problem which will inevitably threaten more communities across the UK. Ranging in impact from minor inconvenience to major disruption, every year millions of UK homes, businesses and people are affected by floods. According to the latest information from the Environment Agency, the UK currently has 5.9 million properties at risk of flooding, equating to one in six homes being at risk – an increase of 400,000 properties since 2013. Put into monetary figures, the statistics are even more startling with the effects of flooding and managing flood risk costing the UK approximately £2.2bn a year. Conveyancers have a vital role in informing their clients about the possibility of flooding to ensure they understand the potential risks and are armed with the right information to take steps to mitigate them ahead of the transaction. Home buyers need to be aware that flooding can happen anywhere, even if a property is not next to the sea or a river. There are many different types which

property which property purchasers should be made aware of, including surface water flooding, river flooding, drain and sewer flooding, coastal flooding and flash floods. All have potential to wreak havoc on a homebuyer’s property and life. In recent years, floods have made the headlines on several occasions. Statistics from the Met Office revealed December 2015 as the wettest month ever recorded in the UK, with almost double the average rain fall due to temperatures 4.1c higher than normal. Amazingly, although homeowners tend to have both insurance and warning systems in place to protect themselves against fire and burglary, very few take steps to reduce the chances of their property being flooded. This is rather concerning given that the average cost to rectify flood damage stands at £28,000 compared to the average £7,200 to fix fire damage, and £1,000 on resolving damage after a burglary. When advising clients conveyancers should look for a residential property search that provides a full assessment on the different types of flooding, plus information on insurability. For information on sewer flooding conveyancers should refer to the CON29DW Drainage and Water report, which is also an essential part of the conveyancing process. Geodesys offers a number of flood searches and the CON29DW, providing conveyancers with sound knowledge of any flood risks to their client, enabling them to make better, informed decisions about their purchase before proceeding further.

To find out more visit: www.geodesys.com *29% quoted is based on an analysis of Geodesys orders for search reports January 2018 – December 2018

Articles

High Sheriff’s Lecture - The Social Role of Law and Lawyers

n Wednesday 27 February I attended the High Sheriff’s lecture at the University of Hertfordshire. The current High Sheriff is Suzy Harvey. The High Sheriff is appointed by Her Majesty the Queen to represent her in the County of Hertfordshire in matters relating to law and order. In practice, this means supporting the police, judges, magistrates, coroners, prison and probation services, the armed forces, emergency services and the wide range of other public and voluntary sector and community services that contribute towards making sure that Hertfordshire remains one of the safest counties in the UK in which to live and work. The lecture was given by James Palmer who is the senior partner at Herbert Smith Freehills.

James started with three disclaimers: nothing original to say as it is a continual absorption of ideas; the views were his own; and careful how you treat advice as ideas change over time. Everyone talks about the rule of law but not about the role of law. The first thing is to step back and think of the context that law exists in. Law is a human creation, the rules that society thinks are needed to regulate matters. Criminal law is for serious matter and civil law for less serious matters. It tries to ensure fairness in society and between people. The law is the bottom line where the state or courts intervene. If there is no law the default control is through power, patronage and violence amongst other things. The judiciary have a different role as they have to be seen to be impartially applying the law. In England policy matters are left to parliament and not the judiciary which can be unhelpful. James then drew on the experience of Germany and Hitler where when He came to power the laws were changed so the nazis were not punished, opposition

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was banned and sections of the population were persecuted. The laws had been changed to allow those acts to happen. Laws change over time. Anti discrimination laws started in the 1960s until they have evolved until now we consider discrimination to be awful. The Modern Slavery Act 2015 was passed for a social purpose, however some laws are passed with no social purpose. It can be a case of every time there is a problem change the law, when in fact that is only tool but it is a knee jerk reaction. Lawyers as we all know are not particularly well regarded although judges do appear to do better. Lawyers protect people who are innocent and human rights are valued. Most people trust the person in the street rather than lawyers as they are seen as protectors of the rich and important. Corporate lawyers are portrayed particularly badly in films, James then gave various examples ranging from Pretty Woman through to more recent films. Everything

about

studying

law

relevant in a human context. However law is not the most important thing to most people. There are many myths around what motivates people and lawyers, but automony, mastery of a skill, desire to do something useful and care about the people they work with. What leads to fulfilment? Achieving at work, power, vulnerability, feelings of self worth and comfortable with yourself. Everyone is vulnerable and no one is perfect. People’s brains function differently and you have to respect that. By respecting all people you will then gain respect. The role of law is the social purpose of that law and lawyers should respect that. The law will never be perfect as it is drafted by people and people are not perfect. The lecture was absolutely fascinating and rekindled my interest in jurisprudence. It was filmed and should be on the university website at some point in the future. Judith Gower

Hertfordshire Law Society Gazette

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All change (again!) for the SRA Accounts Rules W

here the SRA Accounts Rules are concerned, law firms are no strangers to change. The past few years have brought several phased changes including to the format of accountants’ reports, role of the reporting accountant and exemptions for firms requiring an accountant. In a continued concerted effort to simplify and modernise the legal system, the SRA is once again making changes to the rules with the current draft being just 7 pages long and containing only 13 rules. This is a significant departure from the existing 52 rules, several appendices and 80 pages. With 25th November 2019 as the implementation date, there’s no time to lose in getting prepared for the new rules. That’s why here we’re going to cover the why, when, what and how… Why the need for change? As already intimated, it’s all about simplification but retaining an essential emphasis on protecting client monies. The SRA’s intention is to allow legal practices greater flexibility over how they operate, the ability to judge independently and make legal services more accessible to the public. To quote Paul Philip, SRA Chief Executive: “Our reforms focus on what matters: the high professional standards that offer real public protection rather than unnecessary bureaucracy that generates costs, constrains firms and hinders access to legal services. We believe that the changes will make it easier for firms and solicitors to do business and to meet the needs of those who need their services.” Can’t say fairer than that. So, while the short term may cause you some pain as you begin to adopt the new rules, unless your existing set up already meets the new requirements, in the long term you’ll be able to manage your accounts and run your business in a less prescriptive way.

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When do the new rules come into force? Guidance notes are likely to be circulated before the rules become mandatory. These notes will act as a toolkit. No official date has been set for the former – guidance notes – but 25th November has been confirmed for the latter – accounts rules. What are the main changes? At a glance, the 10 primary points of difference from the old to new rules are:1. Its much-abridged format means each of the remaining 13 rules are considerably condensed. 2. With no time deadlines, you’ve got the freedom to decide your own timeframes. 3. Following on from #1 and #2, the new rules are principle based rather than prescriptive and contain less definitions. Interpret how you wish and do what’s reasonable. 4. A notable addition is the ability to use a third-party managed account as an alternative to the traditional client account. 5. Guidance notes, if made available, will be separate, not attached to the rules, and released any time. 6. There’s no definition of office money. This means it’s either client monies or not client monies. 7. There’s no distinction between professional and non-professional disbursements. Plus, fees and disbursements can only be paid when a bill is raised. 8. Monies incoming from the Legal Aid Agency are no longer covered in the rules. This money can be held in the office account in future. 9. Bank accounts must still be reconciled every 5 weeks. This requirement has been extended to client’s own accounts or “passbooks”. 10. Although the exemption limits for accountants’ reports are unchanged, definitions of statements or passbook balances has changed and includes joint or client’s own accounts. As a result, firms currently exempt may not be exempt.

By Julian Bryan Managing Director, Quill How can you prepare for change? Ahead of implementation, the SRA has provided much-needed clarification on these important changes to empower legal practices to prepare accordingly. In simple terms, if you’re compliant with the current rules, complying with the new rules will be relatively easy. It could be a straightforward case of stating the new rules in your policies. An internal audit is advisable too. A few minor tweaks to procedures here and there may be all that’s needed. At this review stage, define “promptly”, document your systems and controls, and ensure everyone is aware of your processes – your cashiers, COFA, new starters and reporting accountants. If you’ve been considering outsourcing your cashiering, these new rules are the ideal time to do so. By outsourcing your accounts function to specialists in the field, such as Quill, your supplier keeps abreast of ever-changing solicitors’ accounts rules so you don’t have to. Become a Quill client and we’ll manage your accounts in a compliant and timely manner, while you focus on other pressing business matters. To find out more on Quill, please visit www.quill.co.uk/outsourced-legalcashiering, email info@quill.co.uk or call 0161 236 2910. For further details on the SRA’s new regulatory model, go to www.sra.org.uk/sra/news/press/standardsregulations-start-date-2019.page.

Julian Bryan joined Quill as Managing Director in 2012 and is also the Chair of the Legal Software Suppliers Association. Quill has been a leading provider of legal accounting and case management software, and the UK’s largest supplier of outsourced legal cashiering services, to the legal professional for over 40 years.

Hertfordshire Law Society Gazette

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0161 236 2910 info@quill.co.uk quill.co.uk/quillit

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