Northamptonshire Law Society Bulletin

Northamptonshire Law Society Bulletin www.northamptonshirelawsociety.co.uk Summer/Autumn 2017

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Northamptonshire Law Society Bulletin Published by:

Tel: 0151 651 2776 simon@epc.gb.com www.epc.gb.com Advertising/Features Simon Castell Phil Smith Key Account Manager Denise Castell Design East Park Studio Accounts Michaela Hogan Media No. 1111 Published November 2017 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.

Contents

Autumn 2017 Northamptonshire Law Society

EAST PARK COMMUNICATIONS Ltd. Maritime House, Balls Road, Birkenhead, Wirral CH43 5RE

Titles in blue are supplied by advertisers and are not endorsed by the Northamptonshire Law Society

3 The President Writes 6 Constituency Council Member’s Report 9 Jackson Warns of “Harsh” Costs Sanction Over Mediation Frustration 10 The Story Behind Crazy Hats …

11 Dragon Boat Race 13 On The Cover 14 Experts in 21st Century 15 Law Society Visit 16 ‘Buyer Beware’: Contaminated Land Due Diligence 18 Outsourced Cashiering and Your Bottom Line 21 Hot, Hot, Hot! - A Story by Gerald Coulson

26 EU’s General Data Protection Regulation (EU) 2016/679 Comes into effect on 25 May 2018 31 Legal Indemnity insurance continues to evolve 34 ... And Finally

Both Cynthia Spencer Hospice in Northampton and Cransley Hospice in Kettering provide specialist inpatient hospice care and community end of life care to the population of Northamptonshire.

We provide vital support and care for patients living with a life limiting illness and their families. To maintain our exceptional quality of care and service we depend on the generosity and support of the local community, including legacy pledges.

To find more information about how you can support either Cynthia Spencer Hospice in Northampton or Cransley Hospice in Kettering please do so using these contact details:

A legacy made to either Cransley Hospice or Cynthia Spencer Hospice will ensure that the highest calibre of care is given to the patient and their family when they need it most. For example, a legacy of £1,000 could pay for a whole week of an Occupational Therapist. An Occupational Therapist works towards the well being of the patient by providing specialist items of equipment to maintain their independence and mobility for as long as possible. As the end of life approaches, each day of independence is precious. A legacy, no matter how small will help the patients we are caring for today and in the future.

John Helm, Fundraising Manager, Fundraising Office, Pondwood House, Pondwood Close, Moulton Park, Northampton, NN3 6RT Tel: 01604 973342 www.cynthiaspencer.org.uk Registered Charity Number 1002926

Please consider nominating Cransley Hospice or Cynthia Spencer Hospice to your client if they have yet to decide on a charity to benefit from their estate.

In doing so, you will be supporting the county’s two inpatient hospices and their teams of community palliative care nurses.

Thank you.

Julie Charter, Office Manager, Fundraising Office Cransley Hospice, St Mary’s Hospital Kettering, NN15 7PW Tel: 01536 452423 www.cransleyhospice.org.uk Registered Charity Number 1151018 www.northamptonshirelawsociety.co.uk

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Northamptonshire Law Society Officers & Council Members 2017 Mrs Ika Castka

Honorary Secretary Ruth Taylor

Honorary Treasurer Lisa Garley Evans

Constituency Member & Past President Linda Lee

Chair of Education and Training & Past President Rhona Rowland

Past President

Miss Caroline McGann

Edward St John Smyth Euan Temple

Council Members:David Browne Laura Carter Ahsan Khan

Michael Orton Jones Karen Shakespeare Oliver Spicer

Society Manager Phil Smith

Northamptonshire Law Society

Welcome to the last edition of the Bulletin in 2017.

Northamptonshire Law Society

President

The President writes...

Earlier in this edition you will have seen the report on the Annual Awards Dinner which once again was a very successful and enjoyable evening. If you or your firm have not attended an awards event in the past then please do consider attending next year. What better way to recognise someone who has made a difference and to be able to share their achievements with the rest of the local legal community.

I recently circulated details of the Rokart 2018 event organised in conjunction with the Nene Valley Rotary Club. I am pleased to be able to advise you that a Law Society night has been agreed for Tuesday 20th February and all 10 places for teams has been filled, thus guaranteeing at least one legal team will qualify for the finals. Watch out for a report on the event in our Spring edition.

Training courses continue to be well attended, especially those by Richard Snape on conveyancing with the next event being held on Monday 11th December. If you wish to attend I can accept bookings up until the 7th December. You may also wish to note the dates for 2018 that have been agreed with Richard. They are 5th February, 10th July, 5th September and 5th December.

Another date for your diary is Tuesday 1st May when we have been able to secure an afternoon course delivered by Gill Steel. This is one not to this as Gill is a leading speaker in the Private Client areas of Wills, Probate, Elderly & Vulnerable client, Trusts and Tax. I will be circulating full details in the new year but if you wish to secure a place now then please email me to register.

I would like to wish you all a very merry Christmas and a happy and prosperous new year.

Once again I would like to acknowledge and thank our patrons for their ongoing support of the Society. The University of Northampton, Landmark Information Group, QPI Legal Ltd and Hawsons Chartered Accountants.

Ashtrees Cottage Saxon Rise Duston

Northampton NN5 6HP Tel. 01604 585653

Email: philsmithdw@aol.com All Council members should in the fi rst instance be contacted through the Society Manager.

Mrs Ika Castka

President Northamptonshire Law Society

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Northamptonshire Law Society

Constituency Council Member’s Report August 2017 “Think twice, post once.”

SRA Warning Notice on Offensive Communicationsparticular emphasis on use of social media-disciplinary risks-risk of preventing trainees from qualifying-advice to compliance officers Katie Hopkins the LBC radio presenter and Mail online columnist was sacked after her ‘fi nal solution’ tweet. She described it as a ‘typo’. The press frequently reports on people, including solicitors, losing their jobs after late night, alcohol-fuelled tweets.

Now following a number of successful prosecutions at the Solicitors Disciplinary Tribunal (SDT) the Solicitors Regulation Authority (SRA) have issued a Warning Notice , ‘Off ensive communications’ which applies to private and professional conduct.

The SRA states that it has seen a rise in complaints relating to inappropriate communications, including emails and social media, both in and outside of practice.

Recent cases before the SDT include: • a £25,000 fi ne from the SDT, after a solicitor admitted comments made on Facebook were “off ensive” and “wholly inappropriate” • a rebuke administered to a solicitor for off ensive Tweets • fi nes for three solicitors after they were discovered to have exchanged off ensive emails about a colleague • a £15,000 fi ne for a solicitor who emailed a client using language the SDT said was “despicable”.

Communications made in the course of practice externally as well as inter offi ce emails must not contain statements which are ‘derogatory, harassing, hurtful, puerile, plainly inappropriate, or perceived to be threatening, causing the recipient alarm and distress.’. This clearly goes much further than illegal activity which could be classed as hate crimes . It is subjective and as such it is very wide ranging.

Many of the messages or tweets referred to above have been sent late at night or when alcohol has been consumed. What appear humorous at the time may be regarded as off ensive to the recipient and others, including Tribunal members at the SDT. The off ender, him or herself, may fi nd it embarrassing and shameful in the cold light of day. The warning notice makes it clear that not intending to cause off ence will not be a defence.

Although the warning notice discusses the use of social media it also applies to any other type of correspondence and conversations.

Specifi c reference is made to communications with other law fi rms and litigants in person and warns against using ‘infl ammatory language or being gratuitously off ensive’ either 6

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to the other side or about their client. It warns against crossing normal boundaries particularly in the use of text messages.

Disciplinary action will also be taken against business owners, SRA managers - Compliance Offi cers for Legal Practice (COLPs) and Compliance Offi cers for Finance and Administration (COFAs) who become aware of such correspondence but do not take appropriate steps to stop the behaviour and follow their own disciplinary policies.

Any solicitor has an obligation to report serious misconduct to the SRA under Outcome 10.4 of the Code of Conduct but this warning notice makes it clear that any solicitor who is in a supervisory role has a positive duty to put a stop to any such communication either by reporting to a superior or to the COLP to enable them to take action or by use of the disciplinary procedures in place.

The SRA state that the majority of complaints relate to activities outside the offi ce.

As the rationale behind regulatory decisions is not published it is often diffi cult to understand the regulators approach. There are areas of the Warning Notice that are unclear and could confl ict with professional reputation and public confi dence in the profession.

The warning notice states that it only applies to non-solicitors such as managers, owners, trainees and employees engaged in legal practice in ‘relation to communications made by you during the course of business’. Therefore, it seems it does not apply to non-solicitors outside of their employment. At fi rst blush, this seems inconsistent and troubling given the potential impact these incidents might have on professional reputation.

The SRA warns that misconduct of this type could impact on trainees in that they may not meet the requirements of the Suitability Test and therefore will not be permitted to qualify.

Although not stated explicitly in the warning notice, business owners or managers would also be caught by the requirements of the Suitability Test and as such their authorisation could be terminated.

The power of the SRA in relation to non-qualifi ed employees and consultants is governed by the Solicitors Act 1974 section 43. This makes it clear that the SRA powers to regulate only extend to non-qualifi ed persons’ activities in a legal practice or following a conviction.

The warning notice also reminds COLPs, sole practitioner, manager or the head of an in-house legal department that if, ‘a member of your fi rm sends or posts an inappropriate or off ensive communication, it not only puts you at risk … it also has the potential of causing signifi cant damage to your fi rm, both in terms of reputation and fi nancially; for example, if clients react by withdrawing their business or are deterred from instructing your fi rm. In some circumstances, you could also be liable for your employee’s actions (eg if the communication amounts to victimising or harassing a third party).’

It advises that an assessment should be made of the potential risks to the fi rm to determine whether a social media policy should be put in place and whether other system or controls are necessary.

The second area of the warning notice which causes concern is the suggestion that such behaviours are not relevant to the regulator if it is not made evident that the author is a solicitor. It does however seem inconceivable that if a solicitor was found to be involved in posting off ensive material that the SRA would take no action.

The warning notice points out that even if you have not identifi ed yourself a solicitor but you are known as a solicitor or you can be identifi ed from your photograph, or traced back through a pseudonym, complaints could be made about you to the regulator.

The SRA will also take action if you have posted off ensive material or re-tweeted an off ensive tweet without refuting the content, as you will be at risk of being seen as implicitly endorsing the content. If someone else accesses your computer or your social media accounts you must take immediate steps to remove off ensive material and refute the contents.

Northamptonshire Law Society

It would seem prudent to ensure that contractual terms, written policies and disciplinary procedures are in place to cover such situations (wider than simply social media) with procedures for enforcement. It is conceivable that compliance offi cers may be required to report such behaviour as a major non-compliance depending upon the circumstances. It would be sensible to ensure that all employees of the fi rm are aware of this warning notice and any contractual terms, policies or disciplinary procedures that may apply and then to record how and when the fi rm made them aware.

Two of the principles that underpin the Code of Conduct - to act with integrity and to behave in a way that maintains the trust the public place in you and in the provision of legal services need to be considered in a modern context where the use of social media is widespread. Preserve your own reputation and that of the profession -think before you tweet!

https://www.sra.org.uk/solicitors/code-of-conduct/guidance/warning-notices/ Offensive-communications--Warning-notice.page Defined by the CPS as ‘“Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person’s disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or a person who is transgender or perceived to be transgender.” http://www.cps. gov.uk/victims_witnesses/hate_crime https://www.sra.org.uk/solicitors/handbook/suitabilitytest/content.page Rule 14 Authorisation Rules: https://www.sra.org.uk/solicitors/handbook/ authorisationrules/part4/content.page http://www.legislation.gov.uk/ukpga/1974/47/section/43

Linda Lee August 2017.

Linda Lee is a regulatory lawyer with Radcliffes LeBrasseur and the Law Society Council Member for Leicestershire, Northamptonshire and Rutland. As a Council Member she is also the Chair of the Regulatory Processes Committee and a member of the Audit Committee, Regulatory Affairs Board and the Access to Justice Committee. Her pro bono work also extends to the Solicitors Assistance Scheme as Chair.

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A party that frustrates the mediation process by “delaying and dragging its feet for no good reason” will face a potentially “harsh” costs sanction as a result, Lord Justice Jackson has warned.

Thakkar and Anr v Patel and Anr [2017] EWCA Civ 117 was decided in January but has only come to light recently.

It concerned a dilapidations claim and counterclaim for rent repayment over a school in Leicester.

Both parties achieved a measure of success at trial but, finding that the defendant tenants had been unenthusiastic about a mediation being pushed by the claimants earlier in the proceedings, the judge ordered the defendants to pay 75% of the claimants’ costs.

On appeal by the defendants, Lord Justice Jackson (pictured), sitting with Lord Justice Briggs, found: “The defendants, while not refusing outright to mediate, dragged their feet and delayed for so long that the claimants lost confidence in the process and closed it down. The judge held that this case was suitable for mediation. He held that, if there had been a mediation, there was a real chance of achieving a settlement. Those findings were plainly correct.”

Northamptonshire Law Society

Jackson warns of “harsh” costs sanction over mediation frustration party to have his rights determined by a court of law in preference to mediation can be said to be unreasonable conduct particularly when, as here, those rights are ultimately vindicated”.

He recounted that, in PGF II, a failure to engage, even if unreasonable, did not automatically result in a costs penalty. It was simply a factor to be taken into account by the judge when exercising his costs discretion.

Patten LJ went on: “In this case, the judge did take it into account but concluded that it was not unreasonable for Mr Gore to have declined to mediate. His solicitor considered that mediation had no realistic prospect of succeeding and would only add to the costs.

“The judge said that he considered that the case raised quite complex questions of law which made it unsuitable for mediation. His refusal to make an allowance on these grounds cannot in my view be said to be wrong in principle.”

Had the case settled, he continued, “the vast majority of the litigation costs would have been saved”.

Jackson LJ referred to the Court of Appeal’s 2013 ruling in PGF II SA v OMFS Company. He said: “The message which this court sent out in PGF II was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed.

“The message which the court sends out in this case is that, in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, that will merit a costs sanction. In the present case, the costs sanction was severe but not so severe that this court should intervene.”

PGF II was cited in another Court of Appeal case this week, which included a submission from the losing defendants that the trial judge had failed to make some allowance in their favour for the fact that the claimant refused to or failed to engage with their proposal that the dispute should be referred to mediation.

In Gore v Naheed and Anor [2017] EWCA Civ 369, a dispute over a right of way, Lord Justice Patten said he had “some difficulty in accepting that the desire of a

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03/09/2017 18:50

Northamptonshire Law Society

The story behind Crazy Hats …

by Glennis Hooper, Founder, Crazy Hats

Crazy Hats? What is this about?

Back in 2001, at the age of 46, I thought my life was settled when I secured the headship of a primary school in Kettering; a position I had worked hard for and dreamed of throughout my career. Teaching was my life; I loved my job. Just three months after my appointment I was diagnosed with breast cancer and as it was aggressive I was told by consultants I would need to take year off work to cope with the treatment.

I never said, “Why me?” but I did ask, “Why now?”

Being on chemotherapy meant I lost my hair which, for me, psychologically, was the hardest part of all the treatment. The wig I had was awful. I chose not to wear bandanas and being bald was cold so I decided to wear hats and this is where Crazy Hats was born – a lightbulb moment, one day in Debenhams in Northampton.

Being off work for such a long time was hard; I was bored and missed the children and staff terribly. Trying on a particular hat I thought the children would love to dress up in crazy hats on a planned mufti day to raise a ‘little’ bit of money for the hospital where I was being treated; to teach them about the good work nurses and doctors do and to learn how to help and think of others. Also, it was a project for me to keep busy and focussed.

A ‘Crazy Hats’ day in just my school was planned, but the idea spread and before I knew it 85 schools decided to join in as well as many companies in the county and even staff at the hospital eagerly got involved. For one day only Northamptonshire went crazy! Paying 50p for the privilege of wearing a crazy hat, over £20,000 was raised on that one day – it was amazing!

The total amount was banked and ring-fenced with Kettering General Hospital as a donation towards their new breast care unit due to be opened in 2004.

Now, some sixteen years on, having become a registered charity in 2005 and securing premises in 2006, we have raised in excess of £2.7 million with almost £1m having been donated to KGH; slightly less to NGH and smaller amounts to Leicester Royal Infi rmary with support also given to many diff erent therapy units. All kinds of projects have been funded and two cafés have been provided.

Based in Wellingborough, we organise numerous fundraising events throughout the year, our Annual Walk at Wicksteed Park, being our biggest by far. We run weekly coff ee and chat/ therapy sessions for breast cancer patients and have recently set up a holiday home in Hunstanton to give patients and their families/carers much-needed breaks away from the rigours of treatment and appointments.

We have a wonderful team behind us who all believe in our aims of making a diff erence. We are a local charity, proud to be working for the people of Northamptonshire.

‘Crazy Hats’ is indeed one very special story. Being at its helm can be likened to that of being a headteacher! A headteacher with vision, as we are now urgently in need of fi nding bigger and better premises to cope with the increasing numbers of patients needing our services ……

The children wanted more!

Sadly, the Education Authority did not allow me to return to my rightful post and after much heartache I had to retire on the grounds of ill-health. Thank goodness for Crazy Hats, which I decided to pursue to further enhance breast cancer services in the county.

Glennis now works full time for the charity having volunteered for the first 8 years. The charity will be the nominated charity for the forthcoming NLS Annual Awards night on the 29th September when it is hoped to raise a significant sum from your donations.

If you are not attending then please feel free to donate direct via their website at www.crazyhatsbreastcancerappeal.co.uk.

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The Rotary Clubs of Northampton Dragon boat festival took place this year on the 16th July at Billing Aquadrome, Northampton.

All four local Northampton Rotary Clubs played an active part in this year’s event and have reportedly raised more than £400,000 over recent years for local charities. The Rotary Clubs mutually support the event’s lead charity: Warwick & Northamptonshire Air Ambulance.

For the uninitiated, Dragon boat racing involves the following attempt: ‘Up to 10 people paddle each 30’ boat with a drummer at the front beating in time and a helm at the tail steering a straight course. No previous experience required, just plenty of team spirit!’.

Northamptonshire Law Society

Dragon Boat Race

by Council Member Oliver Spicer

Shoosmiths contributed £1,739.70 for the event, including entrance fees. The firm’s entries finished 17th and 31st overall.

The winners ‘Dig Deeper’ were fielded by local construction company Hewlett & Co. Silver position went to ‘Adventure Ways’ fielded by a Northampton based outdoor activity centre of the same name. ‘Howdens Knights’ of Howdens Joinery claimed the bronze.

The venue at Billing Aquadrome was perfect for the event again. It offers great amenities (with a full bar and eateries) and a suitable course with spectator village.

All in all the Northampton Dragon boat festival is one of the best group events in the area, great fun and raises large sums for great charities.

If any firms or individuals would like to enter for next year, please look out for advertisements across all of Northampton’s Rotary Clubs.

As ever, the racing for 2017 ranged from competitive to humorously abysmal. Only one team, ‘The East Anglian Viking Slayers’, managed to capsize and faced the long soggy walk home. The fastest sprint of the day was an amazing 48.80 seconds and the slowest, 78.66 seconds.

The legal profession was represented at the event by Shoosmiths LLP who entered 2 of the 40 strong field. In all,

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On the Cover This issue’s cover shows the offices of VSH Law, Chancery Lane in Thrapston, a base for surgeons, solicitors, bankers and school teachers for the past 350 years. It is now a heritage centre. Visit: www.thrapstoneheritage.org.uk

Northamptonshire Law Society

Fraudulent bank calls to law firms – how to protect yourself This pernicious form of fraud is on the increase. It’s not a new phenomenon but it is one of a variety of methods criminals are using successfully. So how does the scam operate? Firstly, you need to understand the criminal slang –phishing, vishing, smishing and spoofing.

Phishing.

Spoofing.

Vishing.

This is where it gets really tricky. In essence, the criminals imitate genuine telephone numbers or email addresses to gain your confidence. You will see a telephone number that you recognise as being your bank in your caller display.

This is when you receive a fraudulent email alerting you to a problem. The email looks genuine and may lead you to a website that looks exactly like your bank’s website. If in any doubt, just don’t click on the link.

Vishing or voice-phishing, occurs when you receive a telephone call from someone purporting to be from your bank. The aim is to obtain confidential details, passwords or to convince you to make a monetary transfer.

Protect your firm against phone scams

The criminals may claim to be from your bank’s Fraud department. They may tell you there is a problem with your account and ask you to confirm some payments.

• Do not trust your phone’s caller display to identify a caller accurately.

Smishing.

Smishing, or SMS-phishing is the mobile phone equivalent of vishing. The criminals use it less against law firms, but it does happen. The method encourages you to ring a number or follow a link. This will then request password and account information.

• Never give out banking passwords or security codes to anyone over the phone.

• Check callers by phoning the bank yourself using the known number.

• Remember that the bank will never call you to ask you to transfer money to a so-called safe account.

• Remember that the bank will never ask you for banking passwords or user numbers.

Protect your firm against email scams

• Provide a documented process for all employees to follow.

• This should ensure email requests to set up or amend payment details are verified as genuine.

• Use known contact details other than email to make these checks and apply the same rigour to both internal and external emails.

• Consider how you communicate with individual clients who are sending funds, so they can be sure they are sending their money to the correct account.

• Consider encrypting emails and providing c lear, initial instructions about how payment details will be provided or amended.

• Payment methods and bank account details should be agreed at the outset of transactions.

And finally, protect all PCs with quality anti-virus software and ensure it is updated regularly.

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13

Experts in 21st Century Northamptonshire Law Society

By Phillip Taylor MBE, Reviews Editor of “The Barrister” and Head of Richmond Green Chambers

The Expert Witness Institute (EWI) has a new chairmanMartin Spencer QC. In one of his first comments, he says that “it has never been more important to highlight the critical role expert witnesses play in supporting the proper administration of justice and to establish the highest standards of best practice”. And he is absolutely correct!

Use of expert evidence in legal proceedings has been a longstanding tradition, with the first recorded use of an expert witness in the UK courts being recorded in 1782 and now subject to stringent procedural rules which all experts should have a working knowledge of.

In the litigation cycle expert witnesses play a vital role across civil, criminal and family proceedings in the administration of justice. An expert witness is someone who, by his/her training, education, skill, or experience, is known to have specialised expertise or knowledge so that other people may rely on their opinion.

“In providing independent assistance to the court by way of objective, unbiased opinion in relation to matters within their expertise, they make complex issues understandable to lawyers, judges and juries” declares Spencer.

The Procedure Rules for court work are quite clear – the expert performs his or her duty to the court. That duty overrides

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any obligation to a party from whom the expert is receiving instructions. The ‘knock-on’ effect with modern litigation is that the number and types of experts are increasing. “They have become an integral part of the court process” declares Spencer.

Many lawyers use experts in criminal proceedings in areas as diverse as accident investigations, forensic linguistics and the increased use of DNA evidence. In civil and family courts, experts cover areas such as forensic accounting, civil engineering, medical, and many more. It is recognized that, with litigation entering increasingly complex areas, the effective use of a good expert witness is increasingly important.

“There is no doubt that high quality expert evidence will continue to play an important role in all court proceedings” says Spencer. He adds that “there will always be a need for expert opinion about questions that are outside the knowledge, skill and experience of the court”.

To meet this challenge, instructing lawyers need to ensure they work only with experts who understand their duties within the latest procedure rules, and experts need to take responsibility for their development and training to ensure they meet the highest standards which the EWI oversees so effectively as the importance of experts grows with the changing face of litigation in 21st century.

Expert Witness Institute Annual Conference Inside Out and Upside Down

Half Day am/pm including lunch EWI Members: £135 Non-Members: £160 Students: £60

Experts Under Pressure Church House, London 21 September 2017

Annual Conference EWI Members: £240 Non-Members: £299 Students: £80 Annual Conference and Dinner EWI Members: £299 Non-Members: £365 Dinner only All guests: £93

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Saul Myerson.pdf

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31/01/2017

10:50

URGENT PROOF

MBChB, MD, FRCP, FESC

Consultant Cardiologist, Associate Professor of Cardiovascular Medicine, and Clinical Lead for cardiac

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Production Dept: Your Expert Witness, Suite 2, 61 Lower Hillgate, Stockport SK1 3AW testing, including all forms of cardiac imaging and functional cardiac assessment.

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Your Expert Witness

Please quote reference

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Professor Myerson is based in the internationallyrenowned cardiac MRI department in Oxford and For the attention of: provides expert advice on all areas of cardiology including cardiomyopathy, coronary disease, heart Pleasevalve finddisease belowand a proof of your advertisement booked to appear in our forthcoming edition. aortic disease. He has a large research portfolio and is an editor of three Oxford If any Handbooks revisions in are required please email matt@dmmonline.co.uk or fax on 0161-710 3879 Cardiology.

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within two working days of receipt of this letter, indicating the necessary alterations. Alternatively you may wish to ring to discuss your amendments with Matt Love on 0161-710 3884. for claimant and defence teams, including the Medical Protection Society, and working in high court cases.

Please note: colour laser copies are produced

wholly accurate representation of colour.

Dept. Cardiology Oxford OX3 9DU

for layout approval only and should not be taken as a

Tel: +44 1865 234597 Email: saul.myerson@cardiov.ox.ac.uk www.oxfordcardiologist.com

The Law Society attended the office of Wilson Browne in Northampton to meet with Louise Tyler, Specialist Clinical Negligence Lawyer, on 21st June 2017. The purpose of the visit was to seek Louise’s comments with regard to various government proposals in particular the introduction of fixed recoverable costs in Clinical Negligence claims.

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‘Buyer Beware’: Contaminated Land Due Diligence

Article from Tony Rollason,

Regional Manager

Legal, Landmark Information Group

What is being called the ‘toxic legacy’ of the country’s former landfill sites continues to raise its head. BBC Radio 4 aired a special programme recently looking at the legacy of landfill and the way in which sites have been cleaned-up prior to redevelopment, particularly in light of the current focus on creating new housing and amenities on brownfield land.

A particular concern raised by the programme was on the clean-up of such sites now government closed the ‘Contaminated Land Capital Projects Funding Programme’ and grants to local authorities, who would have previously have used the funds towards remediation, have been halted.

In addition to this, a controversial decision1 by the Court of Appeal following a land contamination case in July 2017 has led to greater uncertainty for both current and prospective land and property owners and purchasers. The Court of Appeal ruled that the Local Authority cannot be held liable for pollution it caused on a piece of land due to the Authority having restructured. The Local Authority in question is now a distinct entity from the original polluter (Powys County Council v Price & Anor, 2017 EWCA Civ 1133).

The reports are available for both residential and commercial addresses and cover 12 critical risk types, including land contamination and radon as well as all significant sources of flooding, ground hazards and energy & infrastructure impact on property or its value.

Lawyers and their clients like the fact that findings are presented in an easy to read PDF report in addition to a unique online map viewing tool, for quick, easy interpretation.

The report provides a thorough breakdown of any risks that have come up as an alert and further steps can then be taken by the client, such as inviting specialist land surveyors or environmental consultants in for an on-site assessment to fully understand the seriousness of any potential contaminants or where responsibility falls for remediating the land, if needed.

At Landmark, we support hundreds of thousands of property transactions every year by providing thorough environmental due diligence to lawyers. By having prior knowledge on any risks affecting a property such as this, it enables the client to be one step ahead and carry out further investigations, as needed, meaning they are able to make a more informed purchasing decision and, in doing so, it also helps protect lawyers from the possibility of negligence claims in future.

While this may be positive news for Local Authorities who may now be able to pass responsibility onto land owners, it may have the potential to create issues for the wider public, in future.

The impact of the decision by the Court of Appeal has the potential to cause some Local Authorities to revaluate their Contaminated Land liabilities, who may determine that responsibility instead lies with the owner and/or occupier.

We could find homeowners, landowners or occupiers now finding that they are at greater risk of being responsible for pollution that they ultimately did not cause.

It is our opinion that it is now more important than ever before to undertake detailed due diligence as a priority, when conducting a new residential or commercial property or land transaction.

‘Caveat emptor’ (Let the buyer beware) has never been more appropriate and therefore lawyers should ensure that thorough land contamination searches are undertaken with every transaction, to provide clients with the complete picture of any potential risks at the outset.

It must not be assumed that because a site was formally owned

by Local Authority, that the responsibility falls to them for cleaning up any identified land contaminants under the ‘polluter pays’ principle.

By making sure the correct searches are undertaken, it will ensure that should any risks transpire at the property in question, further environmental analysis can be undertaken to understand the extent of the risk.

Various reports are available to conveyancers which identify a range of environmental risks, including contaminated land. For example the RiskView ‘all-in-one’ environmental reports provide thorough due diligence, including a free consultant’s review and commentary where high risk contaminated land or flooding features are found.

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1. Full details of the judgement relating to the landfill site can be found here - https://court-appeal.vlex.co.uk/vid/a22017-0119-689130721

Northamptonshire Law Society

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Our bespoke underwriting team have the expertise to assist you, please email enquiries@crminsurance.co.uk Conveyancing Risk Management Limited is authorised and regulated by the Financial Conduct Authority, Registration No. 481621. www.northamptonshirelawsociety.co.uk Registered in England No. 04568951. Registered OďŹƒce: 150 Aldersgate Street, London EC1A 4AB.

17

Outsourced Cashiering and Your Bottom Line

Northamptonshire Law Society

SUCCESS IN BUSINESS The ultimate marker of a successful business is the strength of its bottom line. Profitability is everything if you want to survive and thrive. The route to healthy profits is maximising income and minimising costs.

You don’t necessarily need us to tell you about the former of these – maximising income. Revenue generation is your forte, achieved by good marketing to create new business opportunities in the first place, and even better legal service provision and client care thereafter to secure a stream of repeat and referral business.

in which scales up or down according to your own level of busy-ness. Clearly, then, outsourced cashiering is by far the most economical way to manage this highly skilled, time intensive and heavily regulated business process. In real terms, outsourcing means doing the same job (better, we would argue, as your supplier is a specialist in its field), namely all the normal cashier duties, for substantially less cost.

Finding the right people, training them on an ongoing basis, paying a regular salary and benefits, providing a physical workspace fitted out with all the requisite technology and telecommunications is an extremely costly affair.

Your legal software provider can assist in this area by offering solutions containing features such as automation to reduce your workload, application availability for greater uptime, intuitive time recording to capture more chargeable activity and advanced analytics to monitor performance, to name a few. But that’s not the main focus here. We’re concentrating on the latter – minimising costs.

Not forgetting workplace pensions which warrant special mention. It’s yet another mandatory overhead, relatively newly introduced, if you employ just one person. To fulfil your Pensions Regulator obligations, you must enrol your staff into a pension scheme and contribute towards it. The minimum employer contribution is currently 1%, rising to 2% in the 2018/19 fiscal year and 3% from April 2019 onwards. More if you’re a generous employer.

Where cost cutting’s concerned, we’re going to show you how outsourcing services, specifically outsourced legal cashiering, can help you to drastically decrease your overheads.

STAFF RETENTION

IN-HOUSE VS OUTSOURCED COSTS To begin, consider the standard costs associated with employing an in-house cashiering staff member. Outgoings encompass recruitment and selection; induction, mentoring, training and development; annual bonus; overtime; temporary cover for long-term sickness, maternity and paternity; 10 metres of office space necessitating rent, rates and service charges; IT hardware equipment and office furniture; 1 user licence for legal accounts software; telecommunications; tea, coffee, sugar, milk, water and fresh fruit provision; social events including Christmas parties; other financial rewards such as referral, length of service and staff introduction awards; and miscellaneous schemes including car parking, healthcare and gym membership.

This extensive list can easily run into tens of thousands of pounds. And it’s by no means the biggest expense which is, of course, salary. To give you an impression of average cashier earnings, this table compares salaries by region:Region London Manchester Birmingham Leeds Cardiff Bristol

Cashier’s salary £32,500 £21,500 £19,000 £20,500 £20,500 £22,500

Note: These averages were calculated from jobs advertised on various recruitment platforms throughout June 2017.

In comparison, outsourcing’s charged at a set affordable, monthly, transaction-based fee all18

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If you’re lucky enough to recruit the perfect candidate with an ideal skill-set and strong work ethic, you don’t want to lose them. Employee churn is a major challenge. One of the ways you can retain your talent is to offer a competitive remuneration package. People aren’t driven by money alone but that’s not to say it’s not important. It’s something that can entice your staff to stay with you for the long term. Ultimately, you could end up paying more than anticipated for your cashier’s salary, with incremental adjustments higher than national inflation rates.

And what about ambition? If your cashier wishes to climb the proverbial career ladder, they’ll be looking for promotion opportunities. Even if you do succeed in retaining your star performer, it may be by providing a pathway to progression elsewhere in your business. That means an empty pair of shoes in your cashiering department and back to square one with yet more excessive spending on recruitment.

OTHER COST FACTORS It’s also nigh-on impossible to plan for unexpected, sudden costs not originally factored into your annual allocation of monies. The possibilities are depressingly endless and could be anything from a staff member deciding to retire early to marketdriven hike in office rent. Conversely, with a pay-asyou-go pricing plan, you know from the outset what your monthly outbound spends will be, with no hidden extras on top, which can easily be absorbed into your overheads.

The other cost-related factor to take into account is how outsourcing immediately converts fixed costs into variable costs, as mentioned earlier. Scalability affords you much more flexibility and control of your budget. When you expand, you scale up and pay more. When you contract, you scale down and

pay less. As a business, you become more agile and responsive to the changing demands upon you as a result.

Hopefully by now we’ve demonstrated that the delivered cost savings are decisive when evaluating your outsourcing options. It’s glaringly obvious that your bottom line will be much healthier by moving from a traditional in-house set up to outsourcing agreement, but this isn’t the only financial aspect to take into account.

It’d be an oversight to write regarding the costs associated with outsourced cashiering services without covering cash flow management generally.

A steady flow of monies in and out are essential to keep your business running. This is about establishing good billing and payment practices, distinguishing between your client and office accounts, reviewing your key financial indicators regularly, and staying compliant with the SRA Accounts Rules and CLC Accounts Code.

CASHIERING EXPERTISE Your outsourced cashiering provider should be competent in managing these tasks on your behalf. Fully conversant in the latest accounting rules, trained to industry-recognised standards – typically holding an Institute of Legal Finance & Management qualification – and following a professional development programme, your cashier will manage your books in their entirety from your bank accounts and ledgers to reports and VAT returns.

They’re up-to-date in cashiering best practice, so you don’t have to be. With their input, you’ll identify any red flags immediately in order to keep your finances in the black and have actionable financial intelligence from which to grow your business.

SECURITY PRECAUTIONS There’s also the matter of security. As a law firm, you handle enormous sums of client monies.

Conveyancers are an obvious target and scams relating to rogue house owners and buyer deposit redirection have made headline news over the past few months. But it’s not only conveyancers who hold and pay monies from client account. Every law firm does. With fraudsters and cybercriminals trying their hardest to purloin your financial assets, you have to tighten your defences in order to keep them at bay and your finances intact. You’re reliant upon your cashier and accounts software to do so.

It thus follows that you’re placing an inordinate amount of trust in your in-house cashier who’s required to fulfil an important role in the management of your finances. Amongst their many responsibilities are bank reconciliations, online banking, inter-account transfers and paying invoices. Your internal controls must be watertight in order to monitor your cashier’s actions and transactions so that if anything’s amiss, it’ll be noticed straightaway. In-house cashier fraud isn’t completely unheard of. While we don’t want to engender suspicion of your employees, it’d be naïve to assume it’ll never happen to you. It’s

rare, admittedly, but not outside the realms of all possibility.

With your accounts software, you can reduce the risk of fraud with anti-money laundering checks, credit screens, conflict of interest searches, proof of identity document capture and breach warnings to preserve your matters and their associated finances. There’s also data security in the form of ISO-accredited data centres, password access, SSL encryption, firewalls, penetration testing, system monitoring, replication, physical security measures and more industrial-strength security protocols. The significance of your software is not to be overlooked.

With outsourcing, stringent measures are in place to supervise each cashier who’ll be subject to team,

AND THERE’S MORE Although costs are the major benefit, there are a whole multitude of other advantages derived from outsourcing. We’ve written on this subject extensively before. Read our earlier article titled ‘Ten reasons to outsource your cashiering’ at www.quill.co.uk/10-reasons.

You’ll find information relating to concentration on higher priority tasks, assured regulatory compliance, built-in emergency planning, availability of value-added support, simplified annual accounting, straightforward auditing, assisted external accreditation and more. Not least of these is access to back up from the wider cashiering team as opposed to working in isolation. This is one of the reasons an outsourcing bureau can keep your finances under closer command.

Breaking with tradition is never easy. Even the most forward-thinking amongst us can be averse to change. However, with outsourcing services and legal accounting software advancements, traditional isn’t always best when it comes to managing your finances.

While we appreciate outsourced cashiering may not be right for every law firm, if it does fit your business’s needs, just imagine the cost savings and other benefit gains to be made. You may even prefer a hybrid approach comprising an outsourced cashier and in-house accounts clerk.

Every business is different and the one-size-fitsall solution doesn’t always apply. Your outsourcing vendor should openly discuss your options and devise a strategy unique to you.

Remember too that not all outsourcing companies are reputable and reliable with a proven track record in your sector. Careful screening is recommended. Read our ‘Essential questions to ask your outsourced cashiering provider’ article to assist you here. Go to www.quill.co.uk/essentialquestions.

To contact the Quill team, call 0161 236 2910, email info@quill.co.uk or visit www.quill.co.uk/ nobrainer.

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.

Julian Bryan, Managing Director, Quill.

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For cybercriminals, your client information’s valuable too. This can be used for all manner of illegal purposes and you can be held to ransom for its safe return if stolen. In fact, you’re duty bound to protect your clients’ confidential and sensitive data, not only by the Solicitors Regulation Authority and other industry regulators but also by the Information Commissioner’s Office. Under EU General Data Protection Legislation, coming into force next year, penalties are enforced of up to 4% of global annual turnover or Ð20 million – whichever is higher – for failure to comply. Protecting your data is equally as important as protecting your finances.

section and senior leadership controls. Regular reports showing potential or actual breaches, anomalies and late arrival of monies keep your finances in check. There’s simply no room for error or deliberate deception in an outsourced set-up.

Northamptonshire Law Society

Paternity Fraud, a blow to the stomach…

In a world obsessed with technology and social media it is all too easy to forget to talk. The dinner table was once the place for family discussion and interaction but it has now been invaded by mobile devices, a coffee or a pint down the pub rarely occurs without a smartphone being present and it has become totally acceptable to interrupt direct conversation with someone sitting in front of you for the benefit of social media.

Paternity fraud is a subset of “mis-attributed there is no verifiable evidence that paternity fraud paternity”, where a child has been fathered by is on the increase. However, it does occur. one man, but is actually the child of another and DNA profiling provides evidence of biological that mis-attribution is deliberate rather than relationships and as responsible test providers, accidental. In other cases the male may have we are acutely aware that with the prospect agreed to bring up the child of another (e.g. from of incontrovertible evidence, people who are a previous relationship or adoption), but in others, contemplating or indeed, driven to, paternity the male mating tactic of cuckoldry has occurred fraud may attempt to obfuscate the procedure. and the male is unaware that the child he is Accordingly, procedures are in place to minimise bringing up is not his. While this metaphor can be this possibility. taken a little too far (since the child is genetically linked to the mother and does not generally In fact, paternity fraud is not a new concept, it has expunge the half siblings from the house), it is a been with us for generations and our literature common term in evolutionary biology, where it is and law is littered with reference to it. It is also applied to unwitting males who make a significant mentioned several times by Shakespeare in parental investment in off-spring which are not his various works, where the husband of an adulterous wife, the “cuckold”, is often seething genetically related to them. with underlying suspicion. For example, when The motivation for paternity fraud includes; a) Iago addresses Othello (III.iii.165); “That cuckold false claims from either parent with the objective lives in bliss, who certain of his fate loves not his or avoiding or receiving child maintenance wronger, but O, what damned minutes he tells payments, b) mothers who wish to hold their o’er, who dotes yet doubts, suspects yet fondly family together rather than discourage parental loves”.1 To which Othello replies..”Oh, misery!”. It investment from the incumbent male or expose is the “Oh misery” that is instructive, the discovery her infidelities or c) males who wish to avoid of a paternity fraud has been described as “a blow responsibilities, whether these be financial or to the stomach”. familial or indeed, cover up their own indiscretions The origin of paternity fraud dates from the 1576 from their spouse or partner.

Poor Act, when the law required mothers with As to the frequency of paternity fraud, then there illegitimate children to name the father in order are no clear figures and one should be aware of to ensure that he supported her financially, thus often mis-quoted data from mis-paternity studies placing a lesser burden on the Parish Poor Law where subjects had a reason to take the DNA Overseers. They ensured weekly payments from test. These data are valid in their own right but the named “father” by issuance of “bastardy are not applicable to paternity fraud. The emotive bonds” and which thus created the first headlines we often see in the popular press, which opportunity for paternity fraud, as blackmail and potentiate the urban myth of increasing paternity perjury then became rife. The law was repealed fraud in UK society, does us all little service and

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in the “New Poor Law” of 1834 in order to save poor men from unsuitable marriages and then, a woman with an illegitimate child was sent to the workhouse without financial compensation.

These days paternity fraud may be pursued using the tort of deceit (on the balance of probabilities that the intention was fraudulent) and is not a criminal matter unless a false statement is knowingly made on a public document, such as on a birth certificate or perhaps in information provided to the CMA. There have been a handful of cases which have reached the courts and where damages have been awarded to the male for “indignity, mental suffering/distress, humiliation” or “emotional hurt”, though there are also cases where this approach has been unsuccessful2. It has not yet been possible however, for the male to retrieve maintenance payments, as the court takes the view that bringing up a child confers benefits as well as costs.

Paternity fraud has thus been with us for generations and is of course hard to completely eliminate, but the use of an accredited DNA testing procedure makes it difficult for this to remain undetected and also provides unequivocal evidence to support cases involving the tort of deceit. In the UK the use of the rather explosive paternity fraud accusation is relatively modest; this is largely due to the judicious use of accredited paternity testing.

Dr Neil Sullivan, Complement Genomics Ltd, trading as dadcheck®. www.dadcheckgold.com sales@dadcheckgold.com 0191 543 6334 1 The modern text… The man who knows his wife is cheating on him is happy, because at least he isn’t friends with the man she’s sleeping with. But think of the unhappiness of a man who worships his wife, yet doubts her faithfulness. He suspects her, but still loves her. http://nfs.sparknotes.com/othello/ page_142.html, accessed 10th May 2017.

2 P v B (Paternity: Damages for Deceit) [2001] 1 FLR 1041; A v B (Damages: Paternity) [2007] 2 FLR 1051; Webb v Chapman [2009] EWCA Civ 55.

Northamptonshire Law Society

by Gerald Couldrake, Partner and Head of Corporate at Howes Percival.

Hot Hot Hot! Our main family holiday started with a chance conversation with a client, after I’d finished a job for them just before Christmas.

“Have you ever been to Blue Waters”?

“Not yet” I answered.

“We’ll have to get you to come then” came the reply. And that planted a seed in my mind, which grew rapidly into a fully flowered plan once my family had inspected the Hotel’s website.

You’ll have gathered that the client owns a Hotel, but it is located on the beautiful Caribbean island of Antigua and August this year found us arriving at the Hotel not sure of what to expect, we never having been to the Caribbean before.

The Blue Waters Hotel is a large Hotel complex situated on the coast in its own bay away from any other resorts or towns on the island’s northern coast. It has three private beaches and a mix of Hotel rooms, villas and apartments. There are three restaurants and water sports provided. We had beachfront Hotel rooms about a minute’s walk from the main pool and beach. We had selected the all inclusive package which included all meals and drinks throughout the day. The accompanying photograph was taken from our room’s balcony.

August is low season in the Caribbean, but the Hotel was quite full during our week and we enjoyed meeting other guests and on the last day I was even asked for my work details by a man running a small IT company who I got chatting to while cooling off in the sea. Probably the most unlikely networking I’ve ever done. Temperatures during the day are in the very high 90’s meaning for us that we spent lots of time cooling off in the pool and sea. The sea temperature was the warmest I’ve

ever experienced, and was a shock to me having experienced a childhood of being pushed into a freezing cold North Sea at Felixstowe where we went to visit my grandparents every summer. The nicest time was after about 5pm when it cooled down a little and a tropical cocktail could be enjoyed whilst watching the sunset at about 6.30pm.

Because of the temperatures and the very friendly and relaxed attitude of the staff, very quickly you learn to slow your pace of life right down and just relax. It becomes addictive and very therapeutic. The staff are really pleased to see guests, tourism being the island’s main source of income and they genuinely want to make sure you have a very good time and want to know that you’ll come back. Unlike some other Caribbean islands, I think that Antigua is very safe and civilized. You don’t get hassled by the locals.

One day we hired a car and drove around the island, as the Hotel is in its own bubble. Whilst most people don’t have a comparable standard of living to the UK, neither did we see any abject poverty or feel threatened. It was an interesting day, seeing the real Antigua. The best thing we did, was to be taken out on a Hobiecat catamaran to a nearby reef where we snorkelled. Not something I’ve done before, but it was an utterly magical and mesmerising experience, swimming with tropical fish over a reef. We found several Nemo’s and it is definitely something I’d want to do again. We were told that there is one particular beach on the island where turtles regularly swim in the bay, and you can snorkel with them. Had we had time to organise a trip this is definitely something we’d have wanted to do.

All in all, I can thoroughly recommend Antigua for a relaxing, safe and very enjoyable holiday. I can also thoroughly recommend Blue Waters too: the food, cleanliness, facilities and service from the staff was really excellent. Although, in retrospect, we didn’t seem to actually do much, I now realise that’s the point.

You’re not supposed to rush around.

In the words said to me by one of the staff: “just chill out, man, and be cool”. www.northamptonshirelawsociety.co.uk

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PROPERTY INFORMATION

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Our approach is practical and straight forward in that we agree more local knowledge leads to improved levels ofservice. This is enforced by an example of our recruitment policy so that our reports are proof read by an ex head of conveyancing with over thirty years’ experience. Believe us when we say we know what makes the difference.

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Protecting your practice from modern day business risks come in variety of forms, including but not limited to a malware attack, malicious hack, a disgruntled employee, or simply caused by human error. Upon discovery that you have been affected, the damage to your practice could be anything from a breach of privacy (loss or theft of personal data, as well as third party or corporate data), or it could simply interrupt your business preventing you to trade, alternatively it could result in the discovery that a theft has occurred, all of which could cause you significant reputational harm.

As recently highlighted in the media, cyberattacks are increasingly becoming the norm.

Sadly, it is more likely to be a case of ‘when’ not ‘if’ your practice will be attacked. Out of necessity, businesses have started to think more proactively, raising staff awareness through training, whilst also implementing new processes and procedures in place to effectively deal with an attack, or minimise the damage an attack may cause. This is particularly prevalent for law firms, due to the amount of personal and sensitive data that they hold, especially with the impending GDPR legislation which is effective from May 2018.

During or in the immediate aftermath of an attack, a firm need to make very important decisions and quickly. These decisions can come from all angles, with the need to consider protecting yours and your clients’ reputation and getting your business back on track as quickly as possible. Extensive expertise is often required, which could include forensic and security specialists to identify the cause, lock down and collect evidence as well as involving crisis management and PR support along with the need for legal counsel.

What is described as a “cyber-attack” can

Professional Indemnity Insurance (PII)

Furthermore Regulatory obligations include, protection of client moneys and assets; along with having the responsibility to keep

Cyber

the affairs of clients confidential along with having to comply with legislation applicable to your business, including anti-money laundering and data protection legislation.

Which means that all practices need to address ways to protect their overall risk profile, as cited in principle 1 and outcomes O(4.1) and O(7.5).

Due to the concerns expressed by our clients of the modern day risks that they are faced with, we have developed a unique, seamless and interlocking insurance product specifically for the UK legal sector of England and Wales. The product incorporates Cyber, Crime, and Regulatory defence cost coverages alongside SRA compulsory PII insurance.

For more information on how we can help protect you from modern day business risks, please contact myself or one of Lockton solicitors team on 0330 123 3870, or alternatively please visit our website: www.locktonsolicitors.co.uk.

Brian Boehmer, Lockton Companies LLP +44(0) 207 933 2083 brian.boehmer@uk.lockton.com

Crime

Policy

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Reports state that there are an increasing number of criminals specifically targeting law firms. In addition to these threats, there are new regulatory obligations that bring with them new risks which need to be protected. Threats such as cyber-attacks and data breaches are all part and parcel of modern day business risks law firms now face.

Northamptonshire Law Society

Mapping Environmental and Planning Risks contaminated land, ground hazards, and ‘Energy & Infrastructure’ are assessed and provided to the homebuyer in one report.

This is further supplemented with advice and recommendations from expert environmental consultants, Argyll Environmental.

P

ROSPECTIVE HOME BUYERS TAKE THE TIME TO FIND THE HOME THAT TICKS AS MANY BOXES ON THEIR WISH LIST AS POSSIBLE; RIGHT LOCATION, NUMBER OF BEDROOMS, OUTSIDE SPACE AND IN THE RIGHT PRICE BRACKET, TO NAME JUST A FEW.

negligence case against the conveyancer.

They may have also undertaken their own research into areas such as school catchments, nearby shopping or leisure facilities, or to check the locality for local parks, pubs or other places that are important to them.

In recent months, legal search reports have taken a great leap forward to provide solicitors and their clients with extremely user-friendly options that provide clarity relating to a wide range of areas.

Homebuyers do however tend to rely on their

Today, ‘digital bundles’ are available that provide not only environmental and local planning due diligence via an electronic PDF

ears’ when it comes to understanding any potential ‘risks’ that may not be immediately apparent when undertaking their own research.

For example, is the property at risk of viewing the property, but what happens in times of bad weather? Is the property connected to mains drainage or does it have its own sceptic tank? Or, perhaps there is next door, which could impact not only the enjoyment or views from the property, but potentially its future value.

Importantly, if a homebuyer doesn’t believe vital information was made available or explained to them as part of the conveyancing process and they later come to have an issue, they may be in a position to pursue a legal 24

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From a solicitor’s perspective, it is therefore vital to demonstrate that full and proper due diligence has been undertaken.

What’s the answer?

By accessing the mapping tool, users can easily ‘drill in or out’ of the map, to see exactly what risks are present, and where, in an instant.

On top of this, local planning applications, land use designations, rights of way, housing and neighbourhood demographics are also provided via Landmark’s Plansearch Plus report, meaning it takes seconds to identify whether any planning applications may have an impact, enabling the client to determine whether this is an issue for them or not.

Clients can quickly see where any environmental risks may be present within 250m of the property, in addition to active/pending/approved residential and commercial planning applications up to a 750m radius via the mapped viewer.

Plus, with everything visible on an Ordnance Survey map, it’s extremely easy to see where the risks are. As such, clients can be undertaken, creating peace of mind, and demonstrating compliance (and best practice) from each conveyancer’s perspective.

By accessing an all-in-one search report, it not only speeds up transaction processing thanks to the concise delivery of information, but saves even more time and closes a compliance gap by removing the need to identify a every transaction.

This makes it extremely easy to see the results being presented and identify where further investigation is needed, prior to the sale completing.

Mapping Environmental & Planning Intelligence Landmark’s RiskView Residential is one such provided in four separate environmental

Angela Gordon-Lennox Landmark Information www.landmark.co.uk 0844 844 9966

Northamptonshire Law Society

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Northamptonshire Law Society

EU’s General Data Protection Regulation (EU) 2016/679 Comes into effect on 25 May 2018 The UK’s data watchdog is hiring hundreds more staff to enforce a strict new regime that will crack down on the mishandling of consumers’ personal information.

The Information Commissioner’s Office is expanding its roster of investigators, lawyers, analysts and policy advisors by 40% in the two years prior to May 2018 as it prepares for the UK to adopt a “once in a generation change in the law”. There is no Government subsidy and the extra staff will be paid for by extra fines.

Consent Consent under the GDPR must be ‘freely given, specific, informed and unambiguous indication of a data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement of the processing of personal data relating to him or her.’

There must be some form of a positive opt-in – consent cannot be inferred from silence, pre-ticked boxes or inactivity. Consent must also be separate from other terms and conditions, and you will need to provide simple ways for people to withdraw consent. Public authorities and employers will need to take particular care to ensure that consent is freely given.

Consent has to be verifiable, and individuals generally have more rights where you rely on consent to process their personal data.

The reference to affirmative action as well as the requirement that a request for consent must be clearly presented to the employee (and not buried in another document) makes it clear that simply requiring an employee to sign a contract containing a data protection consent clause will not meet the GDPR’s requirements.

In addition, the GDPR requires that an employee must be informed that he or she has the right with withdraw consent at any time, it must be as easy to withdraw consent as to give it, and where personal data is processed for multiple purposes, specific consent must be obtained for each purpose.

If you still want to rely on consent, you will need to need to provide the employee with some key information to help them understand exactly what they are going to be consenting to and the extent of the processing that you will be undertaking.

This will include the identity of the data controller and each of the purposes for which you intend to process the employee’s personal data.

You will need to seek consent in a declaration that stands alone, separate from other terms of employment and which is presented in an ‘intelligible and easily accessible form, using clear and plain language’ and ‘should not contain unfair terms’.

“...The digital age of consent concerns the issue as to what is the appropriate age for minors in providing their consent for information...”

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The GDPR also requires proof of compliance, so the procedure for obtaining consent will need to be recorded to ensure that there is a clear audit trail (which will mean updating HR processes to ensure this requirement is adequately covered).

Consent by minors The digital age of consent concerns the issue as to what is the appropriate age for minors in providing their consent for information society services (i.e. any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services). The definition extends to virtually any internet service.

The GDPR allows Member States discretion on this issue between the ages of 13-16. Persons above 16 are considered to have appropriate maturity and understanding and fall within the general rules on consent under GDPR. Member States may set the age but it must not be below 13 (Article 8.1 GDPR).

Depending on the age level that is set, minors under that age would not be considered to have the appropriate maturity levels and capacity of understanding of the context in which their consent for certain data processing activities is being sought. In those circumstances, consent must be authorised by the holder of parental responsibility over that child.

To put the right of the child in context, it is important to note that Article 5 of the UN Convention on the Rights of the Child recognises the right and duty of parents and guardians to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by children of their rights.

In addition Article 12 of the UN Convention on the Rights of the Child goes on to provide that children who are capable of forming their own views enjoy the right to express these views freely in matters affecting them and that due weight be given to them. Therein lies the difficult question that Member States have been debating what is the appropriate “digital age of consent”?

As the GDPR allows Member States a degree of scope in this area (between the ages of 13-16), many people might hold the view that the higher the age level that is set, the more protection is afforded to minors. It is not quite that simple.

Children’s civil and political rights including the freedom of information and expression need to be considered and there is danger that in placing a higher age for digital consent, it can have the effect of restricting children’s access to educational, political and socially informative content. To date there has been diverging opinions coming from various interest groups as to what the appropriate age should be.

The interest of the child has been the common theme amongst the various interest groups expressing views on this issue. The divergence in views arises in trying to balance the freedoms of the child with suitable protection levels.

Obligations of the Data Controller

Given modern technologies, such as the ease at which video or visual content can be shared – is it reasonable to require the consent of a minor to be delivered in a form such as this to prove to the service provider that the child’s consent has in fact been authorised by the person holding parental responsibility over that child?

Is it enough for the service provider to seek confirmation of age by completing details on its website or app or by sending an email seeking consent to the person identified by the child as the parent, without actually verifying that information?

It is suggested that if a service provider is going to disclose children’s personal information to third parties, or allow children to make it publicly available (e.g., through a social networking service, online forums, or personal profiles) then it must use a method that is reasonably calculated, in light of available technology, to ensure that the person providing consent is the child’s parent. Such methods might include:

•

Requiring the parent, in connection with a monetary transaction, to use a credit card, debit card, or other online payment system that provides notification of each discrete transaction to the primary account holder;

Northamptonshire Law Society

It is the responsibility of the Data Controller to make “reasonable efforts” to verify that consent is given is authorised by the holder of the parental responsibility over the child, “taking into account available technology” (Article 8.2). What exactly satisfies this test is not clear.

• Providing a consent form to be signed by the parent and returned via mail, fax, or electronic scan (the “print-and- send” method);

• Having the parent call a call-free telephone number staffed by trained personnel, or have the parent connect to trained personnel via video-conference; or •

Verifying a parent’s identity by checking a form of government-issued identification against databases of such information, provided that the parent’s identification is promptly deleted after completing the verification.

Fines Much has been said about the eye watering fines that apply under the GDPR. It is worth noting that infringements of Article 7 (conditions for consent) attract fines of up to €20m or 4% of worldwide turnover (whichever is higher) and Article 8 (concerning a child’s consent) can attract fines of up to €10 million or 2% of worldwide turnover (whichever is higher).

Euan Temple, Council member and Past President.

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Northamptonshire Law Society

Family Bar has much to be proud of The Bar Council and Family Law Bar Association (FLBA) have backed family law barristers for meeting their clients’ needs and expectations after research from the Bar Standards Board (BSB) showed clients were positive about the service their barrister provided. Similar levels of client satisfaction with their lawyers were also reported today by new findings from the Legal Services Consumer Panel.

The BSB study of 1,200 of clients who had been involved in a family law matter between January 2015 and 2017, showed that of those using a barrister for family legal proceedings, 79 per cent were either “satisfied” or “very satisfied” with the overall quality of the service they received.

Although the report showed there is a perception that barristers charge higher fees than solicitors and other legal services providers, overall there was a positive view of the family Bar from the client community.

The report also showed: • Understanding by clients of the role of barristers in the family law process was good • 69 per cent of clients were aware that there is now direct access for individuals to some barristers • 12 per cent of individuals made direct contact with a barrister without using a solicitor • 33 per cent use barristers for all family law legal advice, not just court representation.

•

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Philip Marshall QC, Chairman of the Family Law Bar Association, said: “The BSB’s findings show that the family Bar’s clients are happy with the service they are getting.

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It’s a positive report and one that is a boost for family law practitioners. Perhaps most importantly, the report reveals that clients are looking ahead and considering using barristers in future. A majority (59%) of all those who took part in the survey, even those who hadn’t used a barrister for a family legal issue, said they would consider using a barrister for family-related legal advice in the future and 64% would consider using a barrister for other legal advice.

“It is no surprise that such a high number of clients go through a solicitor first. The Bar remains predominantly a referral profession, but it is encouraging to see more clients being aware of direct access and many going directly to the Bar. “Inevitably, some parts of the legal services sector will home in on the few negatives from the report, particularly the perception of how much barristers charge. The Bar Council and FLBA will do more to highlight to the public that this perception is not accurate. To view this report as negative for the family Bar would be a complete misinterpretation of the findings. With the many challenges family practitioners face today, this report gives a positive insight into how clients view family barristers despite those challenges.”

The BSB findings were echoed today in the Legal Services Consumer Panel’s latest annual Tracker Survey results, which showed high levels of satisfaction amongst users of legal services. 83% are satisfied with the outcome of their legal matter and 80% of consumers were satisfied with the service. Trust in lawyers had also increased.

New statistics from the Direct Access Portal , the official Bar Council online directory of direct access barristers, showed the public were turning to the direct access Bar on family matters. In Q2 of 2017, there were 3,600 searches for family law barristers by the public.

Senate House Chambers founded on the four pillars of‌ Integrity, Respect, Professionalism and Strength Senate House Chambers is the largest set of Barristers Chambers based in Northampton. Senate House barristers are highly experienced Family Law specialists and appear in leading cases in all areas of family law in the High Court and in the Court of Appeal. We have three Leading Counsel and our esteemed door tenant Mr Larizadeh QC appears in the Supreme Court also. Senate House barristers are widely recognised by professional and lay clients and the judiciary as being experts in their field.

Senate House sets itself apart from other chambers by strict adherence to our four founding pillars of Integrity, Strength, Respect and Professionalism. All of our barristers, clerks and staff are committed to ensuring that these values are at the heart of everything we do.

The barristers and staff at Senate House recognise the importance and value of teamwork, not only in driving performance standards even higher but also in building self-esteem and creating a supportive environment for growth and development. Each of our barristers therefore has the constant benefit of the knowledge and experience of every single other member of Chambers.

Whomever is instructed at Senate House therefore has the force of the specialist expertise of our entire legal team behind them. We apply our collegiate approach to our relationships with our solicitors also. We offer an open door to those who instruct us. We will always offer help, assistance and guidance to any of our solicitors, whenever they may need it. Our solicitors are provided with direct contact details for any barrister that they may instruct, maintaining open lines of communication as well as our professional relationship.

Senate House strives to deliver exceptional service across the board. From the time of a first contact being made with our clerking team to the conclusion of our billing process and everything in between. We understand the importance of reliability, professionalism and accuracy and seek to deliver these essential elements at every stage. We value our instructing solicitors above all else and are grateful for the work that they instruct us to undertake. We equally appreciate the faith in our team, demonstrated by our solicitor colleagues and their continued instruction.

At Senate House, we understand that our solicitors have a choice of counsel and are grateful for every brief that they elect to send our way. In return, we strive to honour their faith and confidence by delivering exceptional service to them and to their lay clients.

At Senate House Chambers, We are committed to supporting charitable causes. The help that Chambers can provide is an extremely important focus for our business and we regularly support a wide variety of child focused charities, both in the UK and abroad.

14 Albion Place, Northampton, NN1 1UD DX: 15624 Northampton 3 01604 210 979, 01604 622 283 clerks@senatehousechambers.com

Northamptonshire Law Society

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The availability and delivery of legal indemnity services has changed over recent years and continues to evolve. So what’s changed - are all legal indemnity services the same?

Whatever your views on insurance, it is now applied to a greater percentage of transactions than ever before. The days of waiting for an insurer to reply to a letter or even an email for the most commonly requested indemnity policies has mostly gone. We’ve been through the period of the call centre to arrange insurance, followed by the paper based ‘self-issue’ pack – itself a signifi cant change in its time! Inevitably, the next advancement was to take the self-issue pack to online, this led to online services off ering even more insurance products and fl exibility, joining the technological trend to ordering searches, titles and other related services online.

The move to online has, of course, not only improved the speed within which solicitors can obtain legal indemnity quotes and policies, but has also brought about reduced premium charges for clients, particularly as more insurance providers have moved business online.

Client demands and expectations have also changed.

We live in a world where there is demand not only for great service and advice, but also choice and value for money. The Financial Conduct Authority’s (FCA) Treating Customer Fairly (TCF) initiative aims to raise standards in the way fi rms carry on their business, bringing about changes to benefi t consumers, and increase their confi dence in the fi nancial services industry. TCF is recognised by The Solicitors Regulatory Authority as a core outcome of Client Care including, amongst other desired outcomes, treating your client fairly and ensuring they are in a position to make informed decisions about the services they need, how their matters will be handled, and the options available to them.

Northamptonshire Law Society

Legal Indemnity insurance continues to evolve Most clients, when buying insurance or indeed other services, look for and compare a choice of quotes to make an informed decision about what they are buying. Comparison sites have been around for general insurance, as an example, for many years now. Even if a client chooses not to arrange insurance themselves and goes to an insurance professional such as a broker, the broker will usually obtain a choice of quotes or insurance options to present to the client for consideration or recommend from a choice as to which best suits the clients needs.

For solicitors acting on a client’s behalf in arranging legal indemnity insurance, it has always been more diffi cult to obtain several quotes for comparison to determine what might be best for the client’s demands and needs. To get a choice of quotes, a solicitor had to visit each providers website and complete each insurer’s online application, write to the providers or wade through a selection of self-issue packs (assuming they have yet to adopt the move to online services).

However, legal indemnity insurance solutions such as DUAL’s ‘My Legal Indemnity Shop’ online service now takes things forward to the next stage by off ering solicitors (and clients) a choice of up to 3 quotes from diff erent insurers, all from a single website and simple quote application.

Whilst many legal indemnity insurance products are tried and tested and vary little between insurers beyond price, provision and delivery of legal indemnity insurance continues to evolve. New services such as ‘My Legal Indemnity Shop’ are another step forwards towards providing greater choice when placing legal indemnity insurance and, perhaps, go some way in helping solicitors achieve core outcomes such as Client Care and Treating Customers Fairly when giving advice to clients on these insurances.

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Northamptonshire Law Society 32

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Northamptonshire Law Society

And Finally…

... here is a round up of the topics, events and news that were not covered in this edition from Phil Smith, Society Manager.

Welcome to the latest edition of the Bulletin.

By the time you read this the Annual Awards Dinner will be very close. I can still take bookings up to a couple of days prior to the event so if you wish to attend then contact me and I will fit you in.

Training courses continue to be well attended, especially those

by Richard Snape on conveyancing. We also have recently had sessions on GDPR and would like to hear from you about other areas of the law you want to be staged. At a time when all budgets are tight we aim to keep our prices more than competitive and we strive to keep the cost of our course for members down to £25 for up to 3 hours training. I have asked before, and will again now, please do let me know of any quality speakers you are aware of or topics you want us to cover. It only takes an email to me with the basic details and I will do the rest.

Our Council members are named at the front of the Bulletin and are perhaps known to most of you, but we are always on the lookout for more members to volunteer to join Council. The position is not too onerous and only requires a couple of hours of your time once every 2 months with attendance to our meetings which are commence at 6pm. It would be good to hear from anyone who would like to get involved. If you would like to learn more about the requirements then please drop me a mail or call me and I will gladly give you more information.

A date for your diary is Thursday 2nd November when our ever popular annual quiz night is being held at Kettering Golf Club with our chartered accountants friends from LANSCA. This is always well attended and last year the legal profession came on top with a winning team from Hewitsons. I will be sending out details in the next few weeks but in the meantime put the date in your diary and start forming your teams. All are welcome it is not a members only event.

In the last edition I asked for a photograph of your firm offices, a local view, a building, local landmark or similar that we can use for our front page. As you can see VSH Law rose to the challenge and provided an excellent front cover with some very interesting facts about their offices. My thanks to them. If you think your office has an interesting history that would be suitable for the next edition then just send it by email to me. If you are unsure what qualifies then email or ring and I will be happy to discuss.

Once again I would like to acknowledge and thank our patrons for their ongoing support of the Society. The University of Northampton, Landmark Information Group, QPI Legal Ltd and Hawsons Chartered Accountants.

Phil Smith

Society Manager

email: philsmithdw@aol.com

“...At a time when all budgets are tight we aim to keep our prices more than competitive and we strive to keep the cost of our course for members down...”

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