Northamptonshire Law Society Bulletin www.northamptonshirelawsociety.co.uk Autumn 2023
IN THIS ISSUE:
Welcome to Our New President
ALSO: • Charting a Sustainable Future • Business Relationships Key in the Age of Technology • Understanding Charity Beneficiaries
Patroned by:
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Autumn 2023
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The President Writes
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Charting a Sustainable Future Landmark’s CPD Accredited Sustainability Training Services
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ESG and changing paths for law firms
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Relationships remain key in the age of technology
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Understanding charity beneficiaries by Remember A Charity
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The Importance of Family Tree Verification: Safeguarding distribution of estates
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Expert Witness Institute urges removal of new intermediate track rule in civil claims cases
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The use of DNA testing in legal practice
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Law Society sets 2030 net zero target
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Book Reviews - A Practitioner’s Guide To Inheritance Act Claims
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And Finally... Carolyn Coles
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Contents
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Northamptonshire Law Society
The President
Writes...
Welcome to this edition of the Bulletin
First and foremost, I would like to start by thanking all those people who voted me into this role. It goes without saying that it’s an honour and a privilege to be in this seat. I know we have a lot of work to do and I’m looking forward to the challenges that lie ahead. Before I discuss my goals as President of NLS, let me start by acknowledging the enormous contribution made by my predecessor, Jabeer Miah. Under his 2 year tenure, he has achieved so much, including spearheading the opening of a new Pro Bono Clinic in conjuction with the CAB, the University of Northampton, The Law Clinic and Northamptonshire Community Foundation. We are all very grateful to Jabeer for his tenure and I will continue to call on him and others for advice. I am extremely pleased to have Sarah Franklin as my Vice-President. She brings energy and vital expertise to the role. I look forward to working closely with her over the coming months. I would like to give special thanks to all our sponsors and Patrons. We value your continued financial support and we hope to build on the relationships we already have. I would like to recognise my fellow Council members without whose counsel I would struggle as President of
this Society. I also wish to recognise the Society’s manager, Carolyn Coles, for her tireless efforts and dedication in her role. Carolyn is absolutely indispensable to this Society and we are extremely lucky to have her on our team. I would like to thank all our members for their continued support. We are nothing without our members and I believe it is every President’s goal to increase membership during their tenure and I am no different. This is one of our biggest challenges, together with ensuring both our members and our sponsors and patrons get good value for their contributions. I can be contacted at maurice.muchinda@weareclarity.co.uk
Northamptonshire Law Society Officers & Council Members 2023 President
Maurice Muchinda
Vice President Sarah Franklin
Honorary Secretary Ika Castka
Honorary Treasurer Afua Adane
Council Members:
Immediate Past President Jabeer Miah Sharine Burgess- Past president David Browne Laura Carter Michael Orton Jones Euan Temple - Past President Edward St John Smyth - Past President Lynsey Ward
Society Manager Carolyn Coles
Maurice Muchinda
Northamptonshire Law Society The Gatehouse, Stable Lane Pitsford Northampton NN6 9NG Tel: 01604 881154 Email: Sec.nls@outlook.com
President, Northamptonshire Law Society 09.2023
All Council members should in the first instance be contacted through the Society Manager.
Best Regards
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Charting a Sustainable Future -
Landmark’s CPD Accredited Sustainability Training Services In a world facing the ever-growing challenges of climate change, sustainability has become more than just a buzzword; it’s a global imperative. As we stand at the precipice of a crucial transformation towards a lower carbon economy, knowledge and expertise in sustainability are paramount. At Landmark, we recognise the urgency of this transition and are proud to introduce our sustainability training services with the credibility of a CPD accreditation, designed to equip professionals with the skills and knowledge needed to make a difference. Understanding the Wider Context Our sustainability training services are carefully crafted to provide you with a comprehensive understanding of the broader landscape of climate change. We delve into the intricate details of how international and UK laws have evolved to address this pressing issue. More importantly, we explore how these regulations will be implemented across various industry sectors. The result? You gain the confidence and expertise to advise your clients effectively on climate-related matters. Harnessing Expertise At Landmark, we believe in leading by example. Our in-house sustainability consultants are not just driving netzero and ESG initiatives within our own business but are also actively assisting clients in achieving similar goals. This invaluable expertise forms the backbone of our training services, ensuring that you receive guidance from those who are at the forefront of sustainable practices.
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Our Specialised Workshops Our CPD accredited sustainability training workshops cover a range of essential topics, catering to professionals at different stages of their sustainability journey: 1. Climate Change Courses: These sessions provide a solid foundation in understanding climate change, its legal framework, and its implications across industries. By the end of the course, you’ll be well-prepared to advise your clients confidently. 2. Net Zero Workshops: Designed for those embarking on their net-zero journey, these workshops guide you through the intricacies of recording, compliance, and setting science-based targets. 3. TCFD Workshops: For firms looking to disclose climate-related risks and opportunities, our TCFD workshops offer the knowledge to understand financial exposure and build resilience for the future. 4. ESG Workshop: If you’re involved in ESG due-diligence for corporate transactions or advise on mergers and acquisitions, these workshops are tailored to meet your needs, including those with private equity and investment clients. Providing Solutions Our commitment to sustainability goes beyond training. We offer detailed climate change data for every stage of the property cycle. By partnering with Landmark, your firm gains a trusted ally in transitioning towards a more sustainable future. Taking Action The impact of climate change is undeniable,
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and its consequences touch every aspect of our world. Climate change risk management is set to become even more critical in the years ahead. At Landmark, we are deeply committed to sustainability, and our actions reflect this commitment. We understand the importance of collective efforts in addressing climate change and are dedicated to playing our part. Landmark’s CPD accredited sustainability training services are your gateway to understanding, engaging with, and actively contributing to a sustainable future. As the world changes, be the change-maker your clients need. Join us in this transformative journey towards a greener, more sustainable tomorrow. To learn more about our services visit www.landmark.co.uk
Sally Redman, Senior Consultant, Landmark Information Group Sally has 14 years’ experience in environmental risk management and consultancy services. She completed a BSc in Environmental Hazards and an MSc in Contaminated Land Risk Assessment and has numerous market accreditations including an IEMA (Institute for Environmental Management & Assessment), accredited auditor status and Fellow of the Geological Society. As well as delivering complex and large consultancy projects, she is also the Net Zero Lead for Landmark Information Group, helping the company reach net zero by 2050.
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ESG and changing paths for law firms Environmental, social, and governance (ESG) is becoming more embedded in business culture across all sectors. The latest annual report from Marsh and Legal Business, Walking the Talk, reflects this trend in the legal profession and provides data showing the growth of ESG activity. As activity in this space increases, it is useful to periodically reflect on the definition and purpose of ESG. This ensures that organisations do not lose sight of the overall objectives of ESG, while developing layers of data gathering and governance across their operations. “Environmental, social, and governance (ESG) is increasingly seen as the measure of the sustainability and resilience of an organisation. It is not only focussed on climate change and environmental performance, but also the ethical aspects of an organisations governance and how that impacts upon staff and wider society.” Marsh Advisory (2021) In its growing influence within business, ESG activity typically focusses on the ‘environmental’ pillar, which remains topical and attached to national and international priorities in relation to climate change. The 2023 Walking the Talk report reveals several interesting concerns, particularly around raising awareness of ESG and setting appropriate targets for improvement. The former has remained at the forefront of those firms contributing to the 2023 report, while setting targets has escalated in priority in the past twelve months. Interestingly, the top priority in the 2023 survey did not change from 2022 results: ‘Re-assessing risk due to changes in the external business environment’. Beyond the legal profession, reputational risk in relation to ESG is receiving more attention. Businesses are increasingly concerned with how their behaviour is perceived externally, particularly by stakeholders and parties that may provide access to finance and/or insurance. Also of concern are risks posed by clients or supply chain partners that could, by association, have a negative impact upon an organisation’s ESG position. ESG risks of this nature can elevate and accelerate concerns to the top of an organisation’s hierarchy. Reputational risk in an ESG context has an internal and an external face. All businesses will have the opportunity to establish internal processes to manage risks that could lead to reputational damage. Cyber risk and data protection remain high on the list of concerns for many clients, which is likely to continue as the sophistication of digital crime evolves. The ability of an organisation to protect its digital content is a key component for demonstrating its resilience and sustainability. Increasing ESG activity across all sectors will push the legal profession to actively align with client expectations and corporate ESG strategy. Clients are unlikely to select business and/or advisory partners that could negatively impact their own ESG position or provide opportunity for criticism and possible reputational damage. How organisations exert influence across their value chain is often an important metric when assessing each firm’s ESG maturity. The intention here is to cause a ripple effect across industries and their value chains, which supports the uptake of ESG sentiments as widely as possible.
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Similarly, legal firms have stated that they increasingly look at existing and new clients through an ESG lens. Among respondents to the 2023 survey, 66% said that they already assess existing or potential clients on their ESG policies and how their activity could affect the legal partner. A further 22% of respondents stated that, although they currently do not assess clients in this way, it is something they would consider in the future. These statistics demonstrate an increasing awareness of reputational risk, as well as possible negative impacts via association. Conversely, 12% of respondents stated that they currently do not, and are not planning to, assess clients and prospects in this way. The survey also highlighted that although 66% of respondents already assess clients on ESG policies, only 22% said that these considerations led to the firm refusing instructions or altering its approach to new client acceptance. These findings may appear contradictory. However, they highlight the dynamic perspective within legal engagements in relation to the emphasis placed on ESG. The client engagement is clearly being influenced by ESG; however, firms are not currently refusing instruction based on ESG performance. Consequently, legal firms not only should develop their own ESG activity, demonstrating progress and reporting regularly, but they should also assess the possible negative impact by association that could come from clients. Commercial considerations are also likely to be a factor to consider and balancing these issues will cause concern for legal firms. A well-defined ESG strategy, with clear integration across governance procedures, will help address the balance associated with possible reputational risk. However, given changing regulatory and societal demands, how this trend develops bears watching.
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Relationships remain key in the age of technology
Personal relationships are still the heartbeat of business success, despite the increasing use of technology. Personal relationships convey how we value one another. Personal relationships enable us to have empathy with one another’s situations. In his seminal book, “How to win friends and influence people,” Dale Carnegie wrote If there is any one secret of success, it lies in the ability to get the other person’s point of view and see things from that person’s angle as well as from your own. Business relationships then are as much about understanding the challenges we all face in our daily encounters. The search industry has seen significant changes in recent years. Massive consolidation has seen so many of the traditional search companies swallowed up into larger corporates. We have to find ways of differentiating our service offerings, building that trust in client relationships, and delivering services which conveyancers feel add value to their business. Don’t get me wrong, consolidation has brought with it huge advances in technology and customer experience. Gone are the days of endlessly calling suppliers to order reports, collating them manually, printing off reams of paper and hand delivering the search to the office…. and good riddance too! With the exception of local authority searches, most of the reports are now available same day, with many returned in minutes.
I recently won back a client from a rival supplier. When I asked what it was that brought them back to us they said that they felt as though they were a number, rather than a client. It was the personal touch that was missing from their communications; they didn’t feel as though they ever spoke to the same person twice. There wasn’t a familiar voice at the end of phone when things went wrong (as things inevitably do in conveyancing!). In our experience 90% of orders go through with little to no intervention required. But that 10% is where relationships are made and broken. This is where knowledge, experience, and expertise really make a difference. Recognising that the conveyancer is almost certainly under pressure, whether it be from the client, agent or the other side, and being able to take that weight off and deal with the issue through to completion is a critical part of the business relationship. Whether it’s a query on a report back which requires clarification, or chasing up an expedited service. It’s about trusting that the job is going to get done right, first time. The challenge when introducing technology is that you take a step back from that personal touch. You risk losing the experience and expertise provided by the people when you are over-reliant on the technology. At Geodesys we have people who have been with us since the start, 25 years (and counting!), no amount of technology will replace their understanding and expertise. They are an integral part of our account management and customer service offering. They know the search industry inside out.
The delivery platforms are slicker, smarter, more intuitive and spot potential risks that might need to be accounted for, and errors in search requests. But some of this technological advancement has come at the expense of good, old-fashioned customer service. The personal touch.
The key is getting the right combination of technology and people.
Do we rely on technology too much? Are chat bots, apps and portals what our clients really want and need? What happens when things go wrong? People need reassurance, they need to be able to pick up the phone, or send an email, and feel as though somebody is taking a personal interest in resolving their issue rather than “chat” to a faceless bot or send messages via portals.
Kay Toon is an Account Manager at Geodesys
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Going back to Dale Carnegie’s quote; the organisations who can empathise with the clients, and understand how to respond, will be the best at winning friends and influencing others.
An the
Many family law, inheritance and social services Thus
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Understanding charity beneficiaries by Remember A Charity Why should we consider gifts in Wills and how we communicate with charity beneficiaries? Because legacy income for the charity sector is significant. Here at Remember A Charity, we know that the continued support of legal professionals is a key reason why charity income from gifts in Wills is increasing with this form of giving being up 43% in the last decade*. Through consistently making clients aware of the option to give in this way, and by showing your support for this form of charitable giving through joining initiatives such as our Campaign Supporter scheme and other Will-writing schemes, Law Society members are playing a vital role in helping public awareness and appetite for gifts in Wills to continue to grow. Whilst both keen to ensure client wishes are upheld, we know that charities and the legal sector often come at estate administration from a very different perspective. Understanding why this might be was the subject of our recent Campaign Supporter webinar on how to communicate effectively with charity beneficiaries about gifts in Wills. Here’s some of our top tips and insights: Charities operate under a legal and governance framework Charities are required to navigate a complex maze of red tape in order to satisfy the requirements of both the Charity Commission and of their auditors, which mean that they have a moral and legal duty to ensure funds are claimed and accounted for in a timely way. This includes maximising the value of assets disposed of on their behalf, making best use of tax exemptions (both in relation to Capital Gains Tax and Inheritance Tax on the estate), and the need to demonstrate that they have done so to their auditors. With gifts in Wills forming around significant part of their income, charity auditors place a huge emphasis on ensuring a strong audit trail, so charities may come to you with lots of questions. Often, it’s to complete a form or reassure trustees and auditors around due diligence so be open and receptive to their needs. Alert charities to any potential issues Most probate cases run smoothly, but a small proportion will encounter some kind of issue – from disputes over the validity of the Will, to delays and complexities associated
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with the selling of properties. For a large charity this can mean dealing with hundreds of difficult cases each year. Alerting them early to any potential challenges means you can work collaboratively to find a resolution, saving you time and helping to prevent a frustrating to-and-fro of correspondence. Keeping an open dialogue, we’d encourage you as solicitors and Will-writers to keep charities in the loop wherever possible, giving timely updates on the estate, and the likely next steps. Timing is crucial, particularly when it comes to particularly sizeable gifts, which can have a transformative impact on the charity and therefore could influence key investment decisions. Understanding when funds are likely to arrive helps charities manage cashflow and improve their forecasting, enabling them to plan ahead and budget for the future - a key factor for charities looking to maximise their efficiency. Some gifts will be more difficult for charities to accept Charities are grateful for all gifts, no matter their size and shape. However, some gifts will be more difficult than others for charities to accept. For example, they may be too hard to dispose of or selling/maintaining them will in fact cost the charity more than the gift is worth. For example, an ivory statue could cause problems for a charity with either legal issues or going against their ethical guidelines (depending on the age of the item). Similarly, particularly valuable items such as a violin may need to be accompanied by care guidelines and may require funding to enable the charity to properly maintain them. And restrictive guidelines asking charities to use funds for a specific purpose, which the charity cannot meet when the Will comes into effect decades later, can also prove challenging. So, if a charity is unable to accept a gift in that form or requests an opportunity to discuss or explore alternative options, this is unlikely to be that they are don’t want or need the funds - but simply that they are keen to find a way forward that meets their own requirements, whilst still fulfilling the donor’s wishes. Charity staff have varying levels of legal understanding Many charity staff within financial or legacy administration teams you deal with will be qualified and well versed in the process of dealing with charitable estates, but this won’t
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always apply - particularly when dealing with charities that are new to gifts in Wills and haven’t been named as beneficiaries before. It is therefore best to communicate by email wherever possible, and to be patient and allow sufficient time when it comes to any required decision making on the part of the charity, as the individual you are speaking with may need to double check with colleagues or seek other advice before proceeding. Try to keep the language in all correspondence easy to follow, minimise jargon, and manage expectations in case they are unfamiliar with the process. Network locally with charities A positive relationship can be a win-win for business development – with potential opportunities such as the chance to ask for your details to be featured in digital marketing collateral, or to raise your profile by offering support at a Q&A session for the charity’s staff and/or supporters. Charities will often seek out corporate support, and in turn this can offer you a great opportunity to build relationships and attract more clients; after all, charity staff may not have written a Will yet themselves.
With a mission to normalise giving to charity from your Will, our free Campaign Supporter scheme gives Will-writers access to resources and exclusive digital marketing assets to help you start up those all-important legacy conversations. All Campaign Supporters are also listed in our searchable directory for those looking for help in writing their Wills. To find out more about our Campaign Supporter scheme for solicitors and Willwriters, visit: www.rememberacharity.org.uk/ advisers You can also join our dedicated LinkedIn Group for Professional Advisers, to network with likeminded legal professionals and keep up to date with all the latest developments when it comes to gifts in Wills. Ref: *Remember A Charity Consumer Benchmarking Study 2022, OKO
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The Importance of Family Tree Verification: Safeguarding distribution of estates In France and Germany, probate research and the verification of intestate estates using professional firms is considered vital, on a par with the legal profession. Yet in the UK, we struggle to place probate genealogy firms fairly and squarely within the estate administration process. The industry is unregulated, which is not necessarily a problem and should not deter solicitors. My firm adheres to voluntary codes and regulatory regimes that can provide reassurance. The public must feel confident that the probate research firm is not operating a scam. Think of those bogus emails where the sender asks for bank account details in return for millions of pounds for instance. Reputation is a good starting point, but make sure you are dealing with a professional company. Firms can appear to list ‘offices’ around the world by placing keywords on their website and can use an impressive serviced ‘office’ address in a large city like London. Over-reliance on family testimony Another issue I see in the UK probate research industry is the reliance by the solicitor, administrator or executor on family testimony, without independent verification. Some solicitors accept the word of family members on who is or isn’t related to the deceased and by what degree of kinship. This can lead to incorrect estate distribution. I once worked on an intestate estate of around £400k, where the solicitor wanted verification that their client was the sole heir to the estate. The client was an elderly lady who claimed to be her late brother’s sole surviving next of kin. However, we discovered she’d disowned her nephew many years earlier and didn’t recognise him as part of her family. His ‘crime’ was to grow a beard to his waist and wander around his housing estate shouting and swearing. Once we had identified and located him, we established he had suffered from a mental illness for many years. In this case, half the estate rightly passed to him. Children Forgotten I have lost count of the children, siblings and half-siblings who have been overlooked or forgotten by solicitor clients referring cases to us. It’s not deliberate. Families lose touch, large families forget how many relatives they have, children are born out of wedlock and to single parents and, since 1927, adoptive families can legally inherit. It is an excellent idea for the solicitor to interview their client before engaging a
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probate research firm, to make sure all relatives are accounted for.
vital indemnity insurance policy needed to safeguard the administrator.
There are four basic fee models available from most professional probate research firms. Freedom of choice is imperative to cover a variety of situations.
There are dangers of being ‘hooked’ into using a firm based on a very low initial quote. Cheap does not necessarily mean better. It is often true that you get what you pay for, and this is not an area where it pays to cut corners.
The four main options are: 1. contingency fees, where a beneficiary signs a percentage-based agreement with the probate research firm 2. an estate / trust contingency fee, where the executor agrees on a percentagebased fee from a named beneficiary’s entitlement 3. a budget fee paid by the estate 4. a fixed fee paid by the estate. The basic model Firms may name these fees differently, but most firms offer this basic model. Contingency fees are the most popular option. They are seen as fairer in many circumstances--payable only on a successful distribution of an estate. An agreed budget or a fixed fee at the expense of the estate may be more appropriate, depending on the circumstances. Probate research firms can usually offer budget fees payable by the general estate or contingency fees where the fee is agreed directly with a beneficiary or the executor and expressed as a percentage of the sum they receive. There are different situations where one fee option may be more appropriate. For example, if there is no grant or no known next of kin to extract a grant, a fee payable by the general estate cannot be used, as there is nobody with legal authority to agree to such a fee. Fixed fees ‘unfair’ Budget or fixed fees paid by the general estate diminish the whole estate value, which any next of kin who knew the deceased often sees as unfair. If the probate research firm works to a contingency fee and fails to find any further entitled heirs, it usually receives nothing for its work. Still, the report can secure the
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Importance of insurance An insurance policy against missing or unknown beneficiary claims is crucial. Sometimes, administrators seem confident they have identified all next of kin and consider taking out insurance cover against any further claims a waste of money. However, there are an increasing number of claims where no traditional documentation, such as birth certificates exists, and DNA evidence is also being used more than ever before. If there is no formal birth or adoption certificate, a research firm will likely be unable to find ‘undocumented’ claimants. Insurers are unlikely to accept a genealogist’s report as evidence unless you use a recognised firm of probate researchers. Using a recognised firm will often mean an insurance policy is instantly approved, saving you many hours of time. My preference would be to make insurance a statutory requirement on all £15k-plus estates or where a small estate indemnity is not being used. Things may go wrong, and the important thing is to be covered.
Danny Curran MD of Finders International
For more information on Finders International’s family tree verification service, please visit the website www.findersinternational.co.uk Alternatively, you can contact Finders via email: quotes@findersinternational.co.uk or telephone: +44 (0) 20 7490 4935.
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Expert Witness Institute urges removal of new intermediate track rule in civil claims cases The EWI has written to the Civil Procedure Rules Committee calling for the removal of a rule in the new intermediate track for civil claims that would limit expert reports to 20 pages. Rule 28.14 (3), set to come into force on October 1st 2023, includes a statement that unless the court orders otherwise, “any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report.”
Cases with a claim value of less than £100,000 are not always straight forward particularly in Medico-Legal, Construction and Forensic Accounting cases. Plus, at early stages in a claim it’s not always possible to calculate the value until after various expert witness reports have been obtained.
A limit on report length would be a significant change for Expert Witnesses, with the potential to impact the work of experts and the quality of expert evidence, too.
Restricting the number of pages to 20 is arbitrary, with no clarity on what to omit. Different types of reports will have different requirements, which may vary according to profession, whether opinion is required on breach or quantum, and whether there are differences in factual or expert evidence to address.
What is the intermediate track? From October 1st, civil claims cases between £25,000 and £100,000 can be allocated to a new intermediate track. It’s been introduced in an attempt to create certainty of legal costs that are proportionate across a wider range of civil claims. Rule 28.14 (3), introduced without any consultation with the legal and expert witness community, was added to Part 28 amendments rather than making an amendment to Part 35, which would have signalled a significant change for experts. As such, its introduction was only recently highlighted to EWI and our membership.
Structure and necessary inclusions Expert witnesses are required to meet their full obligations under CPR35, PD 35 and The Guidance for the Instruction of Experts in Civil Claims, which may not be achievable with a limit on report page numbers. Expert opinion If there are numerous facts on which an expert needs to base their opinion, then the report must be able to accommodate them.
EWI letter to the Civil Procedure Rules Committee Our letter to the Civil Procedure Rules Committee strongly urges the removal of 28.14 (3) from the draft amendments ahead of the new track coming into effect.
Unintended consequences Limiting the report length may mean information is removed, leading to a greater number of queries and a diminishing quality in the presentation of reports.
In the letter, EWI CEO Simon Berney-Edwards writes: “It can only be assumed that the logic taken by the committee is that cases between £25k and £100k are less complex and therefore Expert Evidence can and should be restricted in order to save costs. If this is indeed the logic used, we would strongly urge you to reconsider.”
Our letters also suggests that, if the main requirement is to reduce the costs of expert evidence, the instruction a of a Single Joint Expert should be considered: a cost-effective option in lower value cases.
Elsewhere in the letter, we explained the reason for reports exceeding 20 pages: “Reports tend to be over 20 pages because it is important for experts to include logical reasoning, refer to other opinions, and incorporate summary paragraphs. All of this is in place to support the court in decision-making. The introduction of this arbitrary page limit will compromise the report and the ability of the Judge to assess the technical aspects of a case. Indeed, in advance of a Judge’s involvement, it is good, well-structured expert evidence that assists the lawyers in settling cases avoiding the need for trials.” Key issues presented by the new rule Using feedback from highly-experienced EWI members from various professions, our letter outlines a number of issues presented by the new rule, including:
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The letter concludes: “In our view, expert witnesses should be well trained in their duties, must know that they should work efficiently and that their reports should be concise and clear – no longer than is necessary to assist the lawyers and the Court. But it is for experts to determine the length of the report is each case, based on their instructions, their expertise and scope of opinion, and the details of the case. We believe that the introduction of this rule will compromise the quality of expert evidence and good decision making. Ultimately, this will have an impact on the administration of Justice, the support provided to the courts, and the outcomes for those involved in litigation.” We eagerly await a response from the Civil Procedure Rules Committee and will update our members in due course.
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The use of DNA testing in legal practice
“Part of our DNA” has become a catchphrase throughout languages worldwide and it refers to a characteristic that is innately part of something. Obviously, this is often misused but the phrase does convey a key principle, that all living things contain a molecule which codes for the essence of life, in whatever species, plant, animal or microbe. This molecule, deoxyribonucleic acid (DNA) and the technology that has developed around it, is now used in a host of applications - one of these, the determination of biological relationships, is the subject of today’s article. Our objective today is to provide a primer for the use of DNA in legal situations, particularly family law. It is the case that technology, ethics, law and society sometimes struggle to keep up with each other. This is particularly so with DNA technology, where we grapple with issues such as consent, parental responsibility, multiple parent babies, paternity fraud, sperm donation, postmortem testing, surrogacy, immigration to the UK and pre-natal parentage testing. The majority of DNA testing is to determine the biological father of a child or paternity, where we are trying to prove that a tested male (the alleged father) is, or is not, the true biological father of a tested child. There are also tests for other biological relationships such as for siblings, twins, grandparents and aunts/uncles. These tests are used for resolving family disputes, immigration status and of course many instances of sensitive child circumstances involving local authorities. DNA is a chemical string of code which is unique to an individual. It is contained in nearly all the cells of your body (mature red blood cells are the exception) and is inherited half from the
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mother and half from the father. We examine this code in several ways to look at individuals and population characteristics, diseases (prediction and diagnosis), ancestry, to identify individuals in forensic cases and in our case, to decipher human relationships. The DNA is extracted from a few cells taken from the buccal cavity, a painless and non-invasive procedure which uses a cotton swab rubbed around the cheek of the mouth. We can use nearly any tissue but for controlled sample collection for legal testing, we always recommend the buccal swab route. In an identity test, the DNA is then examined for regions of similarity between the tested persons. In the case of a paternity test, the DNA test report will then confirm that the tested man is (usually with a certainty in excess of 99.999%) or is not the biological father of the tested child, which is given with 100% certainty. These results are termed either an inclusion (he is the biological father) or an exclusion (he is not the biological father). There are two types of test in general use, with the common parlance of a “legal” or “accredited” test, or a “peace of mind/ personal information” DNA test. This is an important distinction, because only a legal/accredited test may be used for a legal purpose, such as changing birth certificate. In an accredited test, the appointed company will take control of the entire sampling and identity verification process, so that there is in effect a chain of custody of the sample from the subject to the laboratory. In a “peace of mind” test, the individuals are allowed to take the samples themselves and then return them to the laboratories; of course, in such cases we then rely on the participants to take the sample from the correct individual. This is unsuitable for any legal purpose.
close family members so that we can attempt to establish a presumed parentage via DNA from siblings, grandparents or uncles and aunties.
Consent is required from each adult party that is to be tested and if the test involves a child under 16, then we must also have consent from a person with Parental Responsibility for that child.
While the figures for relatedness will not be as strong as for a direct paternity test, we can often gain useful probabilities which provide helpful supporting data when taken together with other evidence. Cousins are biologically too far removed to be helpful in this process.
This is generally the mother, but may be the father under certain circumstances or indeed some other body (sometimes jointly shared with the parents), such as the local authority. We are often asked about the participation of the mother in the process, which is in fact required for a legal/accredited test. With the mother’s DNA analysed in the test, in the case of an inclusion the percentage probability of paternity is generally much higher. This is because the child’s DNA is inherited half from mum and half from father…but we don’t know which half! So by identifying the mum’s DNA, we can then see that the remaining DNA must come from the father. Sometimes, mum or alleged father(s) are not available for sampling and we then seek to obtain a DNA sample from other
These are all of course somewhat complex issues and if you require more detail please get in touch or go to our website for more information. Details can be found below.
About the author: Neil Sullivan, BSc, MBA (DIC), LLM, PhD is General Manager, of Complement Genomics Ltd (trading as dadcheck®gold). The latter is a company accredited by the Ministry of Justice as “A body that may carry out parentage tests as directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969” and by virtue of directly running laboratory services which meet the stringent and internationally recognised ISO/IEC 17025 standard.
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Northamptonshire Law Society
A common issue relates to consent and who has Parental Responsibility for the child. For DNA testing we must have “appropriate and qualifying” consent for each sample to be tested.
Law Society sets 2030 net zero target Northamptonshire Law Society
The Law Society of England and Wales has committed to being net zero by 2030. The commitment follows the launch of our Climate Change Resolution in October 2021 and milestone guidance on the impact of climate change on solicitors in April this year. As well as urging solicitors to take the lead in developing a climate-conscious approach to their daily practice, the resolution also committed the Law Society to develop plans and take rapid action to reduce global warming by adopting science-based targets for its operations. Law Society president Nick Emmerson, who spoke about the guidance at the annual conference of the International Bar Association this week, said: “It is important that as well as providing guidance for the profession, the Law Society demonstrates what we are doing to reduce carbon emissions in our own operations. “We are setting this ambitious net zero target despite Chancery Lane being a listed building. “We are committed to becoming net zero by 2030, and plans to reduce our direct and indirect emissions are already underway.
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“We have already begun to drive down energy usage across the business and the net-zero target will be at the heart of all our decision-making. “We get all our electricity directly from verified renewable sources via a power purchase agreement and are exploring further innovative options to retrofit the building to reduce carbon emissions.”
BOOK REVIEWS
A PRACTITIONER’S GUIDE TO INHERITANCE ACT CLAIMS Fourth Edition
by Nasreen Pearce ISBN 978 0 85490 298 9 | Wildy, Simmonds, and Hill Publishing | www.wildy.com
A tax we should abolish? Well -- not yet. Meantime, practitioners in this area should read the new edition of this guide An appreciation by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister” and Mediator Lawyers dealing with inheritance tax issues (and they are out there aplenty) would be wise to acquire this long established and eminently useful title -- now in a new and extensively updated fourth edition from Wildy, Simmonds, and Hill. The author -- Her Honour, Nasreen Peace -- is a retired judge, well known to the Bar and Wildy, and particularly expert in this challenging, controversial area of law. The guide therefore offers practitioners a detailed and authoritative guide to the provisions of the Inheritance (Provisions for Family and Dependence) Act 1975, with reference to subsequent and recent legislation which is discussed and analysed in detail. The Act itself, as the author points out ‘has been amended over the years to meet the needs of an ever-changing global society,’ notably the now varied forms of family and the extension of the non-traditional family -- a prime example of this being same sex relationships. Usefully, the book provides a step-by-step guide to the preparation of cases under the Act and the practice and procedure required to process an application through the courts. The book deals with every conceivable aspect of this complicated area of law which, to the advantage of the practitioner, delivers informed comment, as well as fascinating reading, supported
throughout by a wealth of references to cases. Also contained in this updated edition are detailed discussions of a range of issues that have relatively recently emerged: crypto-currencies and crypto-assets, for example and the increasing importance of -and often the necessity for -- negotiation and mediation. With its detailed index and table of contents -- and of course, numbered paragraphs throughout -- the book is easily navigable as are all Wildy guides. Note the tables of statutory instruments, guides, codes of practice and international materials. All but one of its thirteen chapters feature an introduction and the chapters themselves cover every relevant aspect of this minutely detailed legal landscape which, more often than not, demands an erudite, precise, and yet sensitive approach to sensitive and often complicated issues, such as -- for example -- domicile, time limits, eligibility, grounds for making a claim and so forth. Note too, the three appendices which include legislation, precedents, and practice guidance. Comprehensive and practical, this authoritative legal text has long been regarded as an essential purchase for practitioners involved in this particularly challenging area of law. The date of publication of this hardback fourth edition from Wildy is cited as 7th July 2023.
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And Finally... Hello! It has been a busy few months here at NLS bunker. At the AGM in July, we welcomed Maurice Muchinda into his year as President, and Sarah Franklin as Vice President. A special note of thanks to outgoing President, Jabeer Miah, who championed the Society whist welcoming his baby daughter into the world, and mourning the loss of his father. We also bid a sad farewell to our longstanding Council member, former President and national President, Mrs Linda Lee. Linda has been a key member of the NLS Council for many years and we have relied heavily on Linda’s inciteful input. We wish her well in the future – Linda you will certainly be missed! We have had several upcoming training events, delivered by patrons Marsh and Landmark, and by Elizabeth Nicholls from 45 Gray’s Inn. We’re always keen to provide training for our members, so if there are there any subject matters you would like us to deliver a training event on, drop me a line sec.nls@outlook.com.
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As you read this we will have partied the night away at the Gala Dinner, held at the County Cricket Ground. We shared the evening with President’s of the Local Law societies from Birmingham, Nottingham, Derby, Leicester and Hertfordshire. I look forward to sharing the photos of the evening’s celebrations with you, in the next publication.
Best wishes Carolyn Coles Society Manager
