Northamptonshire Law Society Bulletin www.northamptonshirelawsociety.co.uk Issue 4 Spring 2014
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Contents
Issue 4 Spring 2014
3 The President Writes 6 Council Members Report 8 “See You in Court” Is not the only answer 12 Solicitor’s PII: Review of Renewal 2013 13 Is Your Marketing Healthy, Sustainable & Relevant? 14 Professional Indemnity Insurance - Your questions answered 16 Can I Get a Witness?
Media No. 1111 Published February 2014 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.
18 DNA - The True Test of Any Relationship 21 Using Mediations to resolves Neighbour Disputes 26 Client Tales of a Criminal Lawyer 28 Timely outsourcing guide helps law firms to work smarter 30 ... And Finally
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Northamptonshire Law Society Officers & Council Members 2013/14 Mrs. Linda Lee C/o Northamptonshire Law Society Ashtrees Cottage Saxon Rise Duston Northampton NN5 6HP Tel: 01604 585653 email: lkhln@aol.com
Vice President
Mrs. Sarah Banner Shoosmiths 1st Floor Witan Gatehouse 500-600 Witan Gatehouse West Milton Keynes MK9 1SH Tel: 03700 868312 email: sarah.banner@shoosmiths.co.uk
Honorary Secretary & Past President
Mr Euan Temple Temple and Co Suite 4, Natwest Bank Chambers, 46 High Street Daventry NN11 4HU Tel: 0870 7708275 email: eft@templesols.com
Honorary Treasurer
Miss Caroline McGann McGanns Law 57 Norfolk St. Semilong Northampton NN2 6HP Tel: 01604 791396 email: caroline.mcgann@mcgannslaw.co.uk
Chairman of the Non-Contentious Committee Mr. David Browne Hewitsons 7 Spencer Parade Northampton NNI Tel: 01604 233233 email: davidbrowne@hewitsons.com
Chairman of the Contentious Committee Mr. Tom Kings Tollers 55 -57 High Street Corby Northants NNI7 IUY Tel: 01536-276727 email: trk@tollers.co.uk
Parliamentary Liaison & Past President
Northamptonshire Law Society
President & Constituency Member
The President writes...
Mrs. Vicky Meek C/o Northamptonshire Law Society Ashtrees Cottage Saxon Rise Duston Northampton NN5 6HP Tel: 01604 585653
Past President
Mr. Edward St John Smyth C/o Northamptonshire Law Society Ashtrees Cottage Saxon Rise Duston Northampton NN5 6HP Tel: 01604 585653
Past President
Mrs. Lisa Garley-Evans Regional Legal and Regulatory Affairs, EMEA Avon Cosmetics Ltd Nunn Mills Road Northampton NNI 5PA Tel: 01604 617445 email: lisa.garley-evans@avon.com Michael Orton-Jones The Close 68 High Street Harpole Northampton England NN7 4BS Mobile: 07714896500 email: michael.orton-jones@iimea.co.uk Mr. Michael Fitzpatrick DFA Law 2 Waterside Way Northampton NN4 7XD Tel: 01604 609560 email: michael.fitzpatrick@dfalaw.co.uk Miss Ruth Taylor Ruth Taylor Family Law Footshape House Kingsthorpe Road Northampton NN2 6EZ Tel: 01604 721619 email: ruth@ruthtaylorfamilylaw.co.uk
Society Manager
Mr. Phil Smith Ashtrees Cottage Saxon Rise Duston Northampton NN5 6HP Tel: 01604 585653 email: Philsmithdw@aol.com
The Northamptonshire Law Society was formed on the 28th June 1879. Its purpose then as now, was in the administration of justice and to support its members and promote their interests. We don’t have much information about how this was achieved in those early years but solicitors in Northamptonshire would meet each other regularly in the everyday course of their work, something that is unlikely to happen today. Today the Society has a full education programme and is the only training provider to regularly promote courses in Northampton. A lot of work is done on the members’ behalf lobbying and responding to consultations so that the perspective of the Northamptonshire solicitor is not overlooked. The Society also provides networking opportunities to help generate clients and technical support for solicitors and firms. It is also a means of meeting fellow solicitors in a social setting. If I look back at what I have valued most from my years as a member and as a committee member for the last 10 years it is the friendships I have made and the kindness shown me by members of the Society. In 2013 we lost several members and their obituaries will be included in the next edition. In January 2014 we heard of the loss of Leo Coulston who was President in 1993, Tom Fincham, President in 1978, and Colin McAra, President in 1990. If you wish to contribute some words to their memory for the next edition then please let me know. I am also very sad to report that Fiona Moore, President of this Society in 2004 died on the 5th February. Fiona was a brilliant and dedicated childcare lawyer and a woman with a true zest and vitality. She was one of the first to befriend me as a new Council Member and I greatly valued her friendship. She was dedicated to her work and despite being diagnosed with a terminal illness over two years ago she continued to work until very recently. She has been taken from us far too soon and we will all miss her. A full obituary will appear in the next edition. All of the members listed above gave their time and energy to making this Society what it is today. I hope this will inspire younger (and not so much younger) members to take up the mantle and to carry on where they left off. If you would like to become more involved with the work of the Society, then please contact either myself of Phil Smith.
Linda Lee, President Northamptonshire Law Society
www.northamptonshirelawsociety.co.uk
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Northamptonshire Law Society
NLS Council Member’s Report As your local Council Member, I also represent your interests on a number of Boards and committees. I will focus on one area of activity in this report. Having been elected as Chair of the Regulatory Affairs Board I took up the role last September. The Board has two main functions: to oversee the promotion of solicitors’ interests in all regulatory matters and to provide technical support for the independent oversight of the operation of the Solicitors Regulation Authority (SRA) by Business Oversight Board. Since the Legal Services Act, the Law Society can seek to influence regulatory policy; it cannot decide or change policy. I have long been concerned that oversight of the SRA is not effective and that the rules set by the Legal Services Board (LSB) called the Internal Governance Rules, make it hard to see how this function can be undertaken by anyone. The LSB’s report in February of 2013, ‘Developing Regulatory Standards -An assessment of the Solicitors Regulation Authority ‘identified a number of weaknesses including the SRA Board being too focussed on making policy and not giving enough consideration to operational matters. In response, the SRA launched a new project called R-View.
‘Since the Legal Services Act, the Law Society can seek to influence regulatory policy; it cannot decide or change policy.’ This is described in its business plan as ‘a three-year programme with interlinked projects covering people, processes, information systems and the regulatory arrangements. Its successful completion at the end of 2015 will enable the organisation to deliver, to its fullest extent, proactive risk-based outcomes-focused regulation in the public interest; regulation that is effective, efficient, targeted, proportionate and transparent.’ We are told that in 2013 the SRA ‘successfully delivered the first phase of the R-view Programme. This work included a number of key deliverables, such as the publication of the organisation’s first Regulatory Risk Outlook in July and the development of the SRA’s key Regulatory Outcomes. In addition, the phase completed the detailed analysis of the current regulatory processes across the organisation as the foundation for the design of the future processes. In October 2013 the Business Case for the remaining two years of the Programme was approved by the SRA Board.’
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Council Members Report 2014-02-11
In part the R-View process is to enable the SRA to measure its own performance. Given that the Law Society has lobbied the SRA regarding greater transparency about how it measures its performances and effectiveness this is a positive step. However the question remains whether the proposals will go far enough? In June 2013 the SRA Board approved its revised regulatory outcomes as follows:
The Outcomes Outcome 1 The public interest is protected by ensuring legal services are delivered ethically and the public have confidence in the legal system 1.1. Those we regulate understand what we require of them and adhere to these standards 1.2 The public have confidence in the quality and effectiveness of legal services 1.3. The public are protected from harm, including that caused by dishonesty, incompetence or unethical behaviour
Outcome 2 – The market for legal services is competitive and diverse, and operates in the interests of consumers 2.1 Those we regulate manage their own risk effectively 2.2 Our regulation does not hinder the development of new and innovative practice, unless the interests of the consumers or the public are at risk
Outcome 3 – consumers can access the service they need, receive a proper service and are treated fairly 3.1 Consumers receive competent legal services 3.2 Consumers are protected if something goes wrong in the provision of legal services 3.3 Consumers are able to make well informed choices and know what to expect when accessing legal services 3.4 Client monies and assets are held securely
Outcome 4 – Regulation is effective, efficient and meets the principles of better regulation 4.1 We make competent, fair and independent decisions 4.2 We manage our resources effectively to deal with risks to the regulatory objectives and account transparently for our spending decisions
It is hard to see how we could object to these proposals, particularly as they mirror 6 of the regulatory objectives of the Legal Services Act: • protecting and promoting the public interest; • supporting the constitutional principle of the rule of law; • improving access to justice; • protecting and promoting the interests of consumers; • promoting competition in the provision of services • increasing public understanding of the citizen’s legal rights and duties; • promoting and maintaining adherence to the professional principles However the Cinderella objective as always is ‘encouraging an independent, strong, diverse and effective legal profession’.
The SRA’s inability to maintain systems so that conveyancers can rely on entries on the Roll and SRA failing to remove bogus firms from ‘Find a Solicitor’ even after the SRA have posted ‘Alerts’ warning that a firm is bogus undermines the conveyancing market.
Northamptonshire Law Society
4.3 We engage openly and constructively with all our stakeholders and are easy to do business with
Further it can be considered that announcements on financial stability by the SRA –statements made before and after gathering data on certain business models- has undermined the market. Any interference with the operation of an open market appears to go beyond the remit of a regulator of standards and conduct. This may well have caused some firms to have difficulty borrowing and obtaining Professional Indemnity Insurance.
The time has come for the profession to set out what we want from a regulator. I do think there are some fundamental principles that we could all sign up to even if it is not possible for there to be agreement on a full wish list. The Regulatory Affairs Board will be working on this and will offer a view to the regulator but we do need the assistance of the profession. If you do have any views or you would like to discuss this topic, then please do feel free to contact me. Linda Lee President & Council Member for Leicestershire, Northamptonshire and Rutland lindakhlee@aol.com
This is markedly ignored by much of the policy making of the SRA. It could be argued that the policies and public statements made by the SRA in relation to its work on Outcomes Focused Regulation – focusing on freedom to innovate- has in fact inhibited firms from change where there are no clear rules guidance or precedent.
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Northamptonshire Rights and Equality Council (NREC) Phil Smith and Linda Lee visited the offices of Northamptonshire Rights and Equality Council (NREC) and met with Chief Executive Anjona Roy on Monday 6th January 2014. During the visit Anjona explained the work of the organisations which provides legal advice to victims of discrimination with any protected characteristic under the Equality Act and supports victims of hate incidents. Over the last three years the organisation has faced a 53% cut in funding despite actively sourcing other funding. During the visit Linda and Phil discussed ways in which the Northamptonshire Law Society could help NREC by raising their profile through publishing an article in the Northamptonshire Law Society Briefing and through a potential fundraising legal walk later this year.
Advice from the not for profit sector in Northamptonshire Despite funding cuts from government agencies there is still not for profit advice available in Northamptonshire. Recently, a number of agencies that offer not for profit legal support have merged or/and moved premises and changed contact details. This article seeks to bring together details about what is available. Central and East Northamptonshire Citizens Advice Bureau is a new charity, formed from the merger of Northampton and District and Nene Valley Citizens Advice Bureau. They serve the majority of Northamptonshire and aim to provide advice to people for the problems they face. Their services are free and provided by a combination of volunteers and paid staff. They offer general initial advice, signposting and a casework service for those requiring it. The very best way of ensuring clients access CAB support is to directly refer. This way they are contacted directly by the CAB rather than having to fight their way through very busy telephone lines. Referrals only take a couple of minutes to do and can be done through a page on their website. The link is below: http://centralnorthamptonshirecab.org.uk/citizens-advice-referrals/ Their advice line is 0844 855 2122
2b High Street, Wellingborough, Northamptonshire, NN8 4HR
Opening hours: Mon & Wed: Tues: Thurs & Fri:
Website:
www.northamptoncab.org.uk
Facebook:
facebook.com/cencab
Twitter:
@NorthamptonCAB
09:45 - 15.00 09:45 - 12:00
09:45 - 14:30 12:30 - 15:00 10:00 - 15:00
Advice on a range of issues is also available from Community Law Service Northampton and County. They also accept referrals or clients can make a direct approach to the organisation. Most of their advice is on Debt, Housing, Immigration and Welfare Benefits. Although much of their advice is free, immigration advice does have a cost attached although the service is run on a not for profit basis.
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• Main Advice Centre, Hazelwood Road, Northampton • The Advice Shop, St Giles Street, Northampton • The Advice Shop, 32 High Street Rushden • Financial Inclusion Hub, Cambridge Street, Wellingborough By Tel:
Northampton offices:
(01604) 621 038
Rushden office:
(01933) 313020
Wellingborough office:
(01933) 278 248
By Fax:
Main Service fax number:
(01604) 232412
By Email:
enquiries@communitylawservice.org.uk
Advice service in the north of the county are provided by Citizens Advice Services Corby & Kettering which have also recently merged.
They also offer drop in advice at their offices Town Centre House Opening hours: 7/8 Mercers Row Mon, Tues & Thurs: Northampton Wed & Fri: NN1 2QL
The Service operates an appointment system throughout the week at Services provided from:
C.A.S. - Corby:
C.A.S. - Kettering:
The Corby Cube Parkland Gateway George Street CORBY Northamptonshire NN17 1QG
Municipal Offices Bowling Green Road KETTERING Northamptonshire NN15 7QX
Tel: 01536 265501
Tel: 01536 482281
There is a specialist discrimination advice available from Northamptonshire Rights and Equality Council. Free legal advice and representation is available on all aspects of discrimination. The organisation has offices in Northampton, Kettering and Wellingborough. Main Northampton Office: c/o Northampton College, Booth Lane, Northampton NN3 3RF. Tel: 01604 400808 Web Site:
www.northantsrec.org
Facebook:
facebook.com/Northantsrec
Twitter:
@Northantsrec
Simon Clarke Appointed Head Master of Spratton Hall from January 2014
He is married to Danny, who also teaches at Spratton, and they have three children, aged 10, 8 and 5 all of whom are pupils in the school. Simon is a keen cricketer, and, with his Drama background, an avid theatre-goer.
Northamptonshire Law Society
Simon has extensive experience in IAPS schools. His first teaching post was at Gresham’s Prep School in Norfolk from 1995 to 2005, where he became Head of English and Drama, as well as coaching teams in all the major boys’ sports. He then moved to Millfield Prep in Somerset to be Head of English and Director of Drama until 2007. Since then Simon has been Deputy Headmaster at Spratton Hall until his recent appointment as Head Master.
Providing an outstanding education a true preparation
Situated in 50 beautiful acres of Northamptonshire countryside, Spratton Hall is an independent preparatory day school of over 400 boys and girls aged 4 to 13 years. Centred around the Grade II listed Georgian manor house, Spratton Hall has developed and flourished in the 60 years since its foundation in 1951, providing exceptional facilities throughout. Having completed a five year development plan the school's facilities now include a new purpose-built large sports dome, a full-sized floodlit astro-turf; fully refurbished dining room and kitchen, state-of-the-art ICT suite, updated science and music blocks as well as a new multi-media centre and library. The final part of the building programme was the creation of an exciting new Performing Arts Centre. Spratton Hall feeds many of the top private senior schools and has an exceptionally good reputation throughout.
Open Morning Solicitors Agent, Process Servers & Enquiry Agents Northampton Office: P.O Box 628, Northampton, NN4 6XT. Oxford Office: Office 6, 94 London Road, Headington, Oxford, OX3 9FN DX: 42353 HEADINGTON.
Established for over thirty years we offer a complete range of confidential external support services to the legal profession on a personal level in Northamptonshire, Buckinghamshire and Oxfordshire; and throughout the U.K through our network of proven agents:
Friday 9th May 2014 10am to 12noon Reception entry for the Pre-Prep School Year 3 entry for the Prep School Entry in other years possible depending on availability
Process Serving ◆ Investigations Discreet Enquiries ◆ Tracing People Witness Statements
Contact the Registrar on afj@sprattonhall.com for an invitation or to arrange a visit to the school.
“This is an extraordinary School” - Good Schools Guide
“An excellent and outstanding School in all areas” - Independent School Inspection Report
PHONE/FAX: 01604 761697 24HRS: 07836 739864/07946 881232 Email: info@faircloughpartners.co.uk www.faircloughpartners.com Data Protection Reg. No. Z9901511 VAT Reg. No. 943 6743 00 The Principals of Fairclough & Partners are full members of the A.B.I.
Tel: 01604 847292
www.sprattonhall.com
www.northamptonshirelawsociety.co.uk Untitled-1 1
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Northamptonshire Law Society
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Northamptonshire Law Society
“See you in Court!” is not the only answer
Tollers LLP January 2014
Looking back over the course of 2013, I am struck by how few times I have actually been to Court. Whilst more claims tend to arise in an economic downturn and we have had a full case load, very few of these have ended in front of a Judge. I think this shows how other dispute resolution processes are becoming increasingly accepted and commonplace. Perhaps the most common ADR process is mediation. This involves employing a professionally trained and neutral mediator. The parties meet on a without prejudice basis and the mediator tends to shuttle back and forth between them to explore whether a consensus can be found. We have participated in more mediations in 2013 than in any other recent year and have achieved positive settlements for our clients. The Courts are actively promoting mediation. It is now common for legal proceedings to be stayed after the exchange of formal Court pleadings for at least one month to give the parties an opportunity to mediate. The fact that a stay is raised by the Court tends to make parties more amenable to mediation as they can agree to mediation without looking weak if the Court has put it forward. Mediation is a much flexible process than litigation. It allows the parties to reach a mutually acceptable compromise as opposed to the winner takes all result of litigation following a trial. An early settlement brings an obvious saving in time and costs. Overall, we are seeing an increasing number of cases being resolved through mediation rather than at trial. Other types of structured ADR processes include the submission of the dispute to a private tribunal consisting of representatives from each party with an independent Chairman. The tribunal hears submissions in whatever format is appropriate and then makes a ruling which
from domestic customers and small businesses in relation to disputes over gas and electricity usage. This service is approved by Ofgem. However, it is only empowered to make financial awards of up to £10,000. Professionals such as lawyers, accountants and chartered surveyors also have established bodies to which complaints can be made. Other industries may offer informal dispute resolution services through their trade bodies, which can usually be tracked down via the internet. In summary, there are an increasing number of ways to pursue a claim without going to Court. However claimants need to understand the limits of each body’s jurisdiction, particularly the maximum amount of compensation which can be awarded.
JEFFREY C. ROSENTHAL
FCIArb FCCA MAE • CHARTERED ARBITRATOR CHARTERED CERTIFIED ACCOUNTANT ACCREDITED MEDIATOR
‘The Courts are actively promoting mediation.’ can be binding or non binding depending on what the parties agree. Alternatively, the dispute may be submitted to an independent expert for a neutral evaluation. This is often used in more technical disputes. Many industry sectors have their own Ombudsman to hear complaints and order compensation if appropriate. These processes offer a low cost, less formal and, generally, speedier resolution than Court action. The Financial Ombudsman Service (“FOS”) handles complaints by consumers and businesses with turnover of less than 2 million and 10 employees in relation to financial services disputes including banking, insurance, mortgages, loans and financial advice. Whilst the FOS is designed for use without the assistance of a lawyer and is much less formal than the Court process, in our experience, clients still tend to want and benefit from legal assistance, especially when it comes to marshalling the evidence and putting forward written submissions to the FOS. The maximum compensation available is £150,000 so the FOS route may not be appropriate for larger claims.
ALTERNATIVE DISPUTE RESOLUTION & EXPERT SERVICES Hamilton Office Park 31 High View Close Leicester LE4 9LJ Tel: 0116 241 4316 Fax: 0870 762 1639 Mobile : 07850 359 580 E-Mail: jrosenthal@btinternet.com www.JeffreyRosenthal.com
Many industries, particularly the former state monopolies such as communications and energy have dedicated dispute resolution services. For example, the Energy Ombudsman can hear complaints www.northamptonshirelawsociety.co.uk JC Rosenthal Ad June 2013.indd 1
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19/06/2013 12:59
Solicitors’ PII:
Review of Renewal 2013 Northamptonshire Law Society
Although the announcement from the SRA that 136 firms closed following the end of the 2013 renewal season was shocking it was for many not surprising albeit that for some the surprise was that the figure was perhaps lower than they had anticipated. Although many of these firms will have closed because they couldn’t place their insurance, no doubt some will have closed either because they didn’t wish to carry on and/or because they couldn’t afford to carry on. The era in which the insurer is the final decision maker on whether a firm stays open or not has arrived with a bump; albeit the reality is that it had already been here for some firms for a number of years.
it, XL had apparently already taken the decision that, having written around £40million in premiums in the 2012 year, it now allegedly only wanted to write around £10-12 million.
So, from an overall perspective, and with the benefit of hindsight, let’s look at what happened last year and try to see if there are any lessons to be learned from the experiences that some firms faced in what for many was the toughest PII renewal season since the advent of the open market in 20000.
This was followed by AIG announcing their renewal strategy, which was to be ‘more selective’ and to ‘price realistically’ comments that were interpreted as meaning that they were pulling out of the market. In reality what it meant was that they offered renewal to many of their clients at existing rates, offered some at increased rates and, for a minority, declined to offer renewal whilst paradoxically at the same time also offering competitive quotes to potential new clients.
One of the most common questions we are asked when looking at the Profession as a whole is ‘Did rates/premiums go up this year or down and if so by how much.’ The answer to the question, as one would anticipate, is never simple as it is so dependent on each individual firm and this is highlighted by the range of change of premium which this year we saw the largest reduction for a firm at around 22% whilst the largest increase that we saw was around 200%. The first renewed their insurance early in August whilst the latter only finalised their cover in mid-October. It is against that backdrop that we can start to understand what happened during ‘The Season’ and why. The lead up to the season started early with the announcement in early 2013 that ‘Balva’, one of the key insurers for small and medium size firms in the 2012 season was in trouble culminating in the admission that they wouldn’t be able to renew any of their policies. This was shortly followed by an announcement from the UK scheme managers, APRO, a part of broker BAR Professions, that they had found a replacement insurer, ‘Berliner’ and were issuing quotes on behalf of ‘Berliner’, even though ‘Berliner’ had yet to receive SRA ‘approval’. The quotes being issued were, for most, not just on a ‘cancel-and-replace’ basis, a tactic that APRO had used the previous year to move clients from ‘ERIC’ to ‘Balva’, but also with the option to renew through to either September 2014 or even September 2015 often at the same or reduced premiums. Unsurprisingly, many firms took up the offer, often on the back of advice from brokers which proved to be ill-founded and perhaps lacking in an independent, objective view. In late June and early July a number of the front-line insurers started to offer early renewals to clients, with whom they had developed a knowledgeable relationship, using shortened proposal forms of typically a single page with around six or so questions on. Typically they were offering either renewal at existing terms or with slight reductions of premium and, as a consequence, a sizeable minority of firms, in our experience, secured a renewal that they were happy with before the market really turned in August. With Aviva having already announced earlier on the year that they were effectively withdrawing from the SME market for PII, a decision that impacted on any of their clients with typically less than £10million of fee income, August saw other insurers make similar announcements. XL announced that they were withdrawing from the small firm scheme for which they had been providing capacity for Aon on an exclusive basis. Although Aon quickly announced that XL had been replaced by QBE, this meant that they were going back to the insurer that had supported the scheme previously and which had withdrawn from the scheme, ostensibly due to the scheme’s unprofitability, with the inevitable result. What was not generally publicised was that XL also wanted to reduce their capacity for their mid-tier firms through the scheme managed by Marsh. A decision which saw them cull up to 75% of the firms that they had insured under the scheme and offer renewal at increased rates for many others. Without publicising 12
Phil Edwards BSc, ACII, MIRM Managing Director QPI Legal Ltd
www.northamptonshirelawsociety.co.uk
By early August, the market had changed, seemingly almost overnight, from a ‘soft’ market to a ‘hard’ one and insurers that were open for business were beginning to be bombarded with quotation requests. In mid-August Enterprise made it known that they had terminated their agreement with their existing UK agents, Monitor, and had appointed a new agent to deal with it’s Solicitor’s PII business. The timing of this change brought with it the inevitable problems and saw a hardening of attitude from the underwriters to many renewals and a blanket refusal to consider any new risks. As a consequence Enterprise’s market share shrunk considerably and questions must now be asked about their future viability and involvement in the Solicitors’ PII market.
‘Why does this relatively small market, in overall premium terms, attract a disproportionate number of unrated insurers?’ But the biggest bombshell was yet to appear. This was to make it’s entrance in early September when it was finally announced that Berliner, the replacement insurer to Balva, would not be able to write the cover that it said it could and effectively withdrew from the market leaving up to 1,200 firms, some of whom had already paid their premiums, having to find a new insurer. To the more knowledgeable brokers this news came as little surprise but was as equally unwelcome since it would undoubtedly make the renewal process more difficult for all including those not previously insured with Balva. With so many insurers having either withdrawn, decided to reduce their capacity or having closed their doors to new enquiries and only one completely new insurer, Chancery, making an appearance, those insurers who were still open for business undoubtedly took advantage of the hardening market conditions. For many firms that hadn’t renewed by late September the issue was more about securing a renewal rather than obtaining a competitive price. Anecdotal evidence suggests that many firms who approached Chancery either obtained terms that were more expensive than they had elsewhere or were rejected entirely meaning that Chancery certainly wasn’t going to be the saviour of the small firm although, in reality, it had never presented itself as being so. Due to the closure of the Assigned Risks Pool and the introduction of the Extended Insurance Period, designed to extend renewal for 30 days to enable firms to find cover followed by, where necessary, a further 2 months of cover to allow the firm to close in an orderly manner, the renewal period dragged on until the end of October. Those firms who hadn’t secured renewal were trying to do so, whilst numerous firms that had secured a renewal offer were still trying to
obtain facilities to finance the premium; an added complication that became a significant issue for many this year.
So why, for so many, was there such a big problem and will it happen again next year? Was it due to the involvement of unrated insurers, the removal of the ARP, the single renewal date or other influencing factors. The reality is that the question, which appears to be relatively straightforward, has a complex answer for which there appears to be no immediate solution nor even one on the horizon. The issue of rated insurers grabs the headlines because of the recent failures of Quinn, Lemma and Balva but the first insurer that provided cover for solicitors that failed was Independent Insurance which collapsed in 2001 and at the time had an ‘A’ rating. Undoubtedly, the involvement of non-rated insurers in the market has proved to be a lifeline for many firms particularly for those firms for whom there was either no alternative either at an affordable price or at all. Currently there are three unrated insurers still operating in the marketplace, namely, Elite, Enterprise and Alpha. The more salient questions are: ‘Why does this relatively small market, in overall premium terms, attract a disproportionate number of unrated insurers?’ and ‘Does the fact that they are unrated really matter or make a difference?’ The answer to the first is a combination of: • The single renewal date enabling an insurer to obtain a market share enough to give it critical mass and viability over a very short period of time. •
The desire of city brokers to find insurers who are prepared to be driven by the potential for achieving substantial income in a short time frame irrelevant of the capabilities and voracity of the insurer concerned.
• The desertion of more secure insurers from the market and lack of desire of other potential participants due to their perception of the lack of profitability of the marketplace and the inability to underwrite risks as they would want to due to the nature of the compulsory wording. As far as the second question is concerned, it very much depends on your perspective. It is about risk and how much of it a firm is willing to take to achieve it’s aims. But to manage the risk, the firm needs to understand better the level of risk that it is taking on and it is here that we believe that the problem really exists. The Independent example shows that having a rating, even an ‘A’ rating, is no guarantee that an insurer is secure. Indeed, even if the insurer has an ‘A’ rating when the insurance is placed with them, there is no guarantee that they will remain at that level during the currency of the policy let alone the period over which any claim may be paid. Currently both QBE and RSA are experiencing trading conditions under which their respective ‘A’ credit ratings are under pressure. QBE are a substantial participant in the solicitors PII market and although RSA have all but withdrawn from it they still have a legacy of many claims that they are still dealing with from their involvement to date. The SRA are currently consulting on the issue of whether they should introduce a minimum standard of credit rating for any Participating Insurer (previously referred to as a Qualifying Insurer), based on a report that they have commissioned from Marsh, with the underlying reasoning being the protection of firms’ clients and the concerns that exist currently about the level of protection provide particularly if an insurer becomes insolvent. The key really is better knowledge of the insurer concerned, irrelevant of their rating, and the background information needed to enable a firm to make an informed decision where there is a choice available. The problem faced by many firms is how to obtain that information from a reliable, informed and unbiased source, particularly when so many brokers, either by choice or contractual commitment, only realistically offer the choice of one insurer.
Northamptonshire Law Society
There were a number of insurers who increased their capacity and for some by substantial amounts particularly insurers such as AmTrust, Elite, Alpha and First Title all of whom showed significant growth in income and numbers of firms covered.
The removal of the ARP has provided some insurers with the degree of certainty and ‘master of their own destiny’ that they were looking for but it’s legacy will impact some insurers for years to come whilst others, particularly those looking to enter the market, won’t have to deal with the uncertainty over their costs that it created thereby removing one of the barriers to entry cited by some. The obvious downside to the profession is the removal of a safety net that had previously given some firms the lifeline to keep going and trade out of their troubles. However, the half-expected influx of new insurers just didn’t materialise and if anything the reverse was true. The removal of this barrier didn’t have the desired effect. What was less apparent was any discounting of rates by insurers to reflect the new structure, in marked contrast to the number of insurers who for the last few years had overtly been charging an ARP levy on their premiums. The removal of the single renewal date was also somewhat of a damp squib, with, in our experience, less than 10% of firms opting to change. This was partly down to insurers either not offering extended policies as an option, not promoting the option or firms having an apathetic attitude towards the option. For many firms the single renewal date was viewed as a positive aspect in creating a market where brinkmanship would produce significant rewards. Last year proved that with brinkmanship can also come severe consequences.
‘...many firms took up the offer, often on the back of advice from brokers which proved to be ill-founded and perhaps lacking in an independent, objective view.’ The decision on whether to keep with the 1st October renewal date or to move it, like so many, is one that is based on each firm’s individual preference but is one that should be based on well informed, independent advice on both the positive and negative impacts it can have on the firm as there are as many arguments for changing as there are for not. The reality is likely to be that there will, for the foreseeable future, be a bulk of firms who continue to have 1st October as their renewal date and therefore the impact that this factor has on insurers, their involvement and their pricing will also continue. So in summary, it could be said that the 2013 renewal period whilst probably seeing the greatest change since the advent of the open market in 2000, was for some plain sailing whilst for others extremely traumatic but for many was a demonstration how volatile the Solicitors Professional Indemnity Insurance market can be. Lessons need to be learned by all, even if their individual renewal process was smooth, with the main one being that an insurers opinion of you as a firm is based on three strategic factors ie: • The acceptance profile of a firm for the individual insurer • The risk profile of the firm • The loss history of the firm The first you have little or no control over, although a good broker should be able to advise you on it for any given insurer, whilst the latter two you do and therefore it is here that a firm should focus it’s attention prior to next renewal. Finally, what is going to happen at next renewal? It’s probably a little early to predict that and it is probably the subject of another article but suffice to say that there are no early indicators that life is going to get any easier in the short term but those who are best prepared will undoubtedly have the easier time. Much will depend on the outcome of the SRA’s current consultation on the parameters for deciding on which insurers to allow to be Participating Insurers and when that decision can be implemented. Ultimately, if the end result is that firms have more certainty and stability and their clients are more secure then it will be to the good of all concerned.
www.northamptonshirelawsociety.co.uk
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Professional Indemnity Insurance – Your questions answered Phil Edwards (BSc, ACII, MIRM, Chartered Insurance Practitioner) is Managing Director of specialist broker QPI Legal Ltd. Based in Northampton, Phil has spent the last 14 years of his 35 year career in Commercial Insurance dealing almost exclusively with Solicitors Professional Indemnity Insurance. Dealing with firms from the Top 50 to Sole Practitioners, Phil has a wide knowledge of both the unique operations of the Solicitors PII market and first hand experience of many of the problems faced by firms in the current environment. Phil has kindly agreed to answer questions relating to Professional Indemnity Insurance. If you have questions for future editions of the Bulletin please send them to Phil at philsmithdw@aol.com. Unless otherwise requested all questions will be anonymised.
If the Succeeded Firm fails to make an election and/or fails to pay any premium due before its acquisition by you the position will revert to that of a Successor Practice and will fall to be covered under your Insurance with additional premium due at the time.
A Solicitor writes:
Where a Firm makes an election the insurer has to give notice to the Law Society in writing of the election not later than seven days following receipt by the Insurer of the firm’s election stating that the election is effective. The Succeeded firm has to irrevocably consent to their Insurer making that notification.
The Assigned Risks Pool (the ARP) has disappeared. What does this mean to me?
Phil Edwards: The SRA after consultation with the profession and the Insurance Industry decided to scrap the ARP as an Insurer of last resort with effect from 1st October 2013. Although this shouldn’t affect you this means in simple terms that if a firm cannot obtain cover in the open market they will have to close. If your incumbent Insurers do not wish to renew cover and no other provider will offer terms then your incumbent will have to offer a 3 month extension to your policy through to the end of December during which time you will be under certain constraints in terms of what work can be done. You will also be obliged to close the practice if no cover has been found at the end of the 3 month period with your incumbent Insurer providing the 6 year run-off cover thereafter.
Whether you choose to add the target firm to your insurance or they elect to buy their own run-off your Insurer will require full details of the firm you propose to acquire/merge with and in the former case they are entitled to charge an additional premium. We would suggest that, prior to completing any negotiations, you contact your broker to discuss all the issues surrounding these transactions, including but not limited to:
A Solicitor Writes:
• Whether to add the firm to your insurance or suggest they elect to buy their own.
We are thinking about acquiring/merging with another Law Firm. What are the insurance implications and requirements?
• The potential additional premium required by your current Insurer(s).
Phil Edwards:
• Indemnities arising out of future excess payments on post-acquisition claims from the firm you acquire.
If you are contemplating acquiring another firm, a part thereof, or merging, you should contact your broker as early as possible in the negotiation process so they can advise on the potential insurance implications of such transactions. Professional Indemnity can impact on these transactions significantly. In certain circumstances the insurance arrangements can be a ‘deal breaker’ particularly if handled incorrectly.
‘We are thinking about acquiring/ merging with another Law Firm. What are the insurance implications and requirements?’ In essence, if you are acquiring another firm or deemed by the Successor Practice Rules to be acquiring another firm, you will be asking your current Insurers to accept all of the past liabilities of the firm you are acquiring unless they elect to buy run-off cover from their incumbent Insurer. On 1st October 2010 the rules governing Successor Practices were changed to enable firms to acquire and/or merge with others without having to take over the run-off. This has been achieved by allowing the Firm being acquired to trigger its own run off cover and to elect to pay their incumbent Insurer thereby leaving all of the past liabilities with their existing Insurer. 14
The Successor Practice rules are complex and we would recommend that you discuss any plans that you may have with your broker who will have a broad experience of many mergers and acquisitions and the benefits of considering insurance early cannot be overstated.
www.northamptonshirelawsociety.co.uk
• Due diligence and other risk management issues relating to the transaction. If you acquire a firm without having advised a broker, or indeed your insurers, this could cause you substantial prejudice in terms of both cost and future renewals. Your Primary Insurer is obliged to cover the firm that you have acquired. However, they can and do charge excessive premiums if they have not had a chance to underwrite the additional risks you have presented to them prior to you completing the transaction. There are a number of things a broker can negotiate for you including a different/lower excess for claims arising from the pre-merger work should you require. If you are being acquired by another firm, again please contact your broker as soon as possible to enable them to advise you of all considerations that you ought to be making. It may be that the broker can get a better deal for you than simply going along with the acquiring firm’s broker’s suggestions.
Lateral Hires If you are taking on Partners or other Solicitors from another firm you may inadvertently activate the Successor Practice Rules and therefore care needs to be taken. Even if you are not a Successor Practice there may be implications for your firm if the Partner/Solicitor in question has a chequered past in terms of both negligence claims or disciplinary action. Brokers have a vast amount of experience in this area and can assist in the due diligence process.
A Solicitor Writes:
3. There is the risk of personal liability for LLP members and Directors’. More details can be provided on request. Brokers can provide members’ asset protection covers.
We are considering becoming an ABS what should we do?
Phil Edwards:
A Solicitor Writes:
4. Once you have converted to an LLP or Limited Company, the Members and Employees could be exposed to corporate type actions in respect of Directors’ and Officers’ liabilities. These risks can be covered by policies provided by your broker and they will be happy to deal with your enquiries in this regard. Northamptonshire Law Society
The Legal Services Act 2007 introduced greater flexibility in terms of how you can run your law firm including investment from non-lawyers. Brokers are at the forefront of these developments and can advise you accordingly. They continue to meet with Underwriters to ascertain their views on developments and how they would treat an ABS if presented to them.
A Solicitor Writes: Is notarial work covered?
Are Locums covered?
Phil Edwards:
Phil Edwards: Locums are covered by the policy. definition of “employee”.
They are included within the
A Solicitor Writes: What do I need to do if the Firm converts to a Limited Liability Partnership (LLP) or Limited Company?
Phil Edwards: If your firm is contemplating conversion to an LLP or incorporation to a Limited Company, you need to contact your broker to discuss a number of insurance related matters including, but not limited to: 1. The LLP or Limited Company will become the Successor Practice to the Partnership and will be covered by your policies in force at the time of conversion. Insurers will need to be advised and policies endorsed accordingly. 2. The Solicitors’ Regulation Authority requires that LLP’s and incorporated bodies must have a minimum Limit of Indemnity of £3,000,000 Any One Claim. Depending upon your insurance program your broker may need to increase your firms’ limit and/or ask your Excess Layer Insurer(s) to underwrite a proportion of their cover on a compulsory wording.
Subject to the fees being declared in the fee income of the Firm and accruing for the benefit of the firm, not just the individual Notary, notarial work is automatically covered by the policy. Brokers are often asked by firms that undertake this work to provide ‘evidence of cover’ by way of a confirmation letter which they are happy to do. QPI have acted for a many firms in these situations and we always ensure that our clients can rely on our expertise to guide them through this process. If you are a QPI client or would like to become one, please don’t hesitate to contact us direct with any of your queries on this or any other Professional Indemnity Insurance problem.
QPI Legal Ltd. Unit 17, Mobbs Miller House, Ardington Road, Northampton, NN1 5NE Tel. 01604 712222 email: phil.edwards@qpilegal.co.uk
FINGERPRINT ANALYSIS Peter M Swann FAE FFS Independent Consultant to the Legal Profession A former Home Office Adviser with five decades experience in all aspects of finger print and crime work. A Fellow of the Academy of Experts, a Fellow of the Fingerprint Society, a Member of the International Association for Identification, a Member of the Forensic Science Society and included in the UK Register of Expert Witnesses. Provides a full independent fingerprint service to legal profession, industry and other agencies. Examination Development
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www.northamptonshirelawsociety.co.uk Untitled-1 1
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Northamptonshire Law Society
Can I get a witness? The Jackson reforms and their new emphasis on overall case costs and adherence to court timetables has changed the way parties approach the use of expert evidence, argues Amanda Stevens, Partner at Irwin Mitchell and Expert Witness Institute Governor. Here, Amanda shares her tips on how expert witnesses can thrive in the post-Jackson regime. What evidence is there that the courts are taking a tougher stance towards EWs post-Jackson? We are only currently aware of one case where the courts decided not to allow expert evidence as it was decided that the costs were not proportionate. Generally there are a few cases indicating a much more robust attitude and a lot of judges will no longer tolerate even minor procedural slips. It is still early days and there are many who think some of the judgments reflect far too much the letter rather than the spirit of the law. It will be interesting to see if the Court of Appeal gives further guidance when it hears some of the Jackson appeals.
In what way has the role of the expert witness changed and will it continue to change? I don’t think the role of the expert has changed, rather the way in which the parties consider the use of expert evidence. There is far more emphasis on the overall cost of the case and only putting a proportionate amount of time and effort in to preparing a case. The one exception to this is the concept of ‘hot-tubbing’, which will change the role of expert evidence in the courtroom, but we don’t have much experience of this yet. Experts will have to get used to being far more willing to give estimates of their total expected time commitment to a case and the likely costs that will be involved because the courts will demand this. Giving an indication for costs of the first report will not be sufficient.
Do expert witnesses now need a greater understanding and appreciation of budgeting before going to court? Absolutely. They need to see their work as part of a team with their instructing solicitor and whilst their views will be unaffected by those who instruct them in all other respects, they must co-operate as a team player. Those who can’t step up to the plate and embrace that change are likely to find their relationships with their instructing solicitors tense and could lead to a lack of referrals in the future. Some solicitors have learned the hard way that failure to set an appropriate budget in advance and notify the courts of it at the requisite time can result in a massive write-off against their files as budgets won’t be retrospectively approved.
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The courts are now insistent on sticking to strict deadlines – could this cause issues relating to the delivery of expert reports? Emphatically yes! Solicitors should be supplying the court timetable to their experts when they receive it. The judiciary have made it plain that they will not tolerate delays. The penalties can be really harsh, such as the evidence being struck out if it’s not delivered on time.
Are there still grey areas in the guidance for instructing expert witnesses? The Civil Procedure Rule Committee is revisiting the guidance that was produced by the Civil Justice Council some time ago. Its response should be available early in 2014. This is likely to address aspects such as budgeting and hot-tubbing as well as reinforce general principles. There still seems to be a lot of uncertainty around the joint statement process but because of varying practices of different law firms it doesn’t seem that there is a ‘one size fits all’ approach. But experts need to be vigilant to ensure that the process does not fall foul of the boundaries which do exist in the Civil Procedure Rules.
What can expert witnesses do to survive and thrive in this new costs regime? Get on top of knowing how to price your work. Ensure strong administrative back up so that reports can be turned around on time. Only work with instructing lawyers who you can trust. Continue to be up to date with training. Try to get news feeds on how the courts use their new case management powers to govern expert evidence. Amanda Stevens is also a Member of the Civil Procedure Rule Committee. • Legal notice • Accessibility • Freedom of information
Northamptonshire Law Society
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Dr Joshua Adedokun
19/02/2014 11:42
Consultant in Pain Medicine
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17
DNA - the true
test of any relationship
Northamptonshire Law Society
The use of DNA testing is a fine example of the devolution of complex technology into our society, through testing for ancestry (the recent exhumation of Richard III is a good example), to testing for possible criminal activity in forensics and the use of DNA technology to identify and quantify horsemeat in beef. But it is the application of DNA testing to family law where the technology has found its greatest proponent. Television programmes such as ‘Trisha’, ‘The Jeremy Kyle Show’ and various soap operas have made DNA testing accessible and acceptable to the general public. Not unsurprisingly, many family law, inheritance and social services cases are now being resolved satisfactorily by use of DNA technology, as the possibilities for the accurate determination of close biological relationships become understood by a wider audience. The majority of cases requiring a DNA test are those where we are trying to prove that a tested male is, or is not, the true biological father of a tested child. To establish paternity the DNA is extracted from a few cells taken from the buccal cavity, a painless and non-invasive procedure. The DNA is then examined for regions of similarity between the tested persons. A DNA test report will then confirm that the tested man is (with a certainty in excess of 99.999%) or is not the biological father of the tested child (with 100% certainty).
The use of DNA profiling is now embedded as a key tool for the legal profession and new applications of the technology will support case-work for several years to come. * http://www.justice.gov.uk/courts/paternity-testing/paternity-test Dr Neil Sullivan, General Manager, Complement Genomics Ltd (trading as dadcheck®), is a company accredited by the Ministry of Justice as a body that may carry out parentage tests directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969”. The dadcheckgold service can be contacted on
0203 603 1323. The website for professional use is: http://www.dadcheckgold.com
The Ministry of Justice provides a list of companies who it has accredited for section 20 paternity testing, by virtue of running laboratory services which meet the stringent ISO 17025 standard. If you are intending to order a DNA test on behalf of a client, for any purpose, then it is strongly recommended that you choose an accredited supplier such as dadcheck® from this list (*see link below). Staff at our dadcheckgold.com service, which is designed for family lawyers and social services, will be pleased to guide you through the DNA testing procedures, including sample collection.
‘The majority of cases requiring a DNA test are those where we are trying to prove that a tested male is, or is not, the true biological father of a tested child.’ A key issue is that in order to carry out a DNA test, we must have ‘appropriate and qualifying’ consent, since this activity is regulated by the Human Tissue Act, 2004. This means that we require such consent from each adult party to be tested and if the test involves a child under 16, then we must have consent from a person with parental responsibility for that child. This is generally the mother, but may be the father under certain circumstances or indeed some other body (sometimes jointly shared with the parents), such as the local authority. DNA technology can be just as useful for deciphering other biological relationships, e.g. in cases where the parents are not available we can establish a presumed parentage via use of grandparents or uncles and aunties. While the figures for relatedness will not be as strong as for a direct paternity test, we can often gain probabilities of relatedness of 85% to 95%, which can be a very useful supporting figure when taken together with other evidence.
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www.northamptonshirelawsociety.co.uk
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05/02/2014 10:13
Northamptonshire Law Society
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Northamptonshire Law Society
Home Secretary Withdraws Challenge To Human Rights Ruling The Home Secretary and Metropolitan Police have both withdrawn attempts to overturn a High Court ruling that recognises the importance of the right to consult a solicitor when someone is travelling through airports and detained and questioned. The High Court had ruled that a person detained under schedule 7 to the Terrorism Act 2000 is entitled to consult a solicitor in person at any time. The decision clarified previous uncertainty about the scope of the right to legal advice in schedule 7 of the Terrorism Act, and followed a Law Society intervention in the High Court case against the Metropolitan Police. Schedule 7 contains draconian powers that allow the police to stop and detain anyone at a port or airport to question them as to whether they are concerned in the commission, preparation or instigation of acts of terrorism, without the need for the police to have any suspicion. The Law Society intervened in support of a claim - brought by Public Law Solicitors in the High Court - that it is unlawful to restrict a person who has been detained to only be entitled to legal advice from a solicitor via telephone prior to questioning, rather than having the right to have a solicitor present in person where someone has specifically asked for legal advice.
Theresa May, the Home Secretary, and the Metropolitan Police sought an expedited appeal against the High Court decision where they were unsuccessful. The appeal was set down for an urgent hearing in the Court of Appeal today and tomorrow. However, they have both made a sudden decision to withdraw the appeal shortly before the hearing. Law Society president Nicholas Fluck said: “We are pleased that the government has reconsidered their position and are no longer challenging this important High Court decision. The Law Society, as the professional body for solicitors in England and Wales, sought to intervene in this case in October last year to demonstrate the essential role solicitors play in advising people held without suspicion and without the right to silence. The government’s new position is a recognition that the right to consult with a solicitor is a fundamental protection for people when questioned by the state. In addition to withdrawing their appeals, the government has gone further by making changes to the Anti-social Behaviour, Crime and Policing Bill to reflect the judgment of the High Court. ‘This protection is a fundamental safeguard for anyone travelling through airports or ports who can be detained and questioned.”
B
oth Cynthia Spencer Hospice in Northampton and Cransley Hospice in Kettering provide specialist in-patient 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. 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. 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 as they look towards potential developments in the years ahead. Thank you.
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: 20
www.northamptonshirelawsociety.co.uk
John Helm Fundraising Manager Cynthia Spencer Hospice Kettering Rd Northampton NN3 6NP
Diana Patrick Fundraising Manager Cransley Hospice St Mary’s Hospital Kettering NN15 7PW
Tel: 01604 678086
Tel: 01536 527407
www.cynthiaspencerhospice.nhs.uk
www.cransleyhospice.org.uk
Registered Charity Number 1002926
Registered Charity Number 1151018
Northamptonshire Law Society
Using Mediation To Resolve Neighbour Disputes Every day there is news of a neighbour dispute. Often those involved have previously been on friendly terms, or even friends, until their relationship breaks down. Commonly neighbour disputes begin when an extension is built, a boundary changed, a gate on a shared driveway erected or property damaged, perhaps by ingress of water from an adjoining building. As relationships disintegrate, often things which were previously thought tolerable (such as paying to maintain a shared driveway or a barking dog) inflame the situation. The Court of Appeal has given various warnings to neighbours who want to take their dispute to court. First and foremost, neighbours must understand that using litigation to resolve a neighbour dispute can prove very costly. In the case of Faidi v Elliot Corporation, where neighbours fell out about timber flooring laid in one flat which was said to cause noise to be heard in a neighbouring flat that would not be heard if underlay and carpet were installed instead, the parties spent in total £140,134 on legal costs to the appeal stage. All three members of the Court of Appeal praised mediation as an alternative form of dispute resolution for neighbour disputes. Further, Mummery LJ warned in the case of Cameron v Boggiano, a protracted neighbour dispute about the ownership of a thin strip of land, that: “…the only certainty in this kind of case is that the financial outlay is almost always more than the disputed property is worth.” But is the potential cost of taking a neighbour dispute to court just limited to legal costs? The answer to this is likely to be no. Having a neighbour dispute may have financial and other consequences down the line, including when trying to sell each property involved. Indeed in Cameron v Boggiano Mummery LJ also said this: “The lawsuit could have unwanted long-term consequences that a sensible compromise might have avoided. One side ‘wins’ at trial, and/or on appeal, but, in the long run, both sides lose if, for instance, litigation blight has damaged the prospects of selling up and moving elsewhere.” So can mediation help avoid or reduce anything else? The answer may be yes. The potential for a neighbour dispute to affect individuals’ lives is noted in the Cameron case by Mummery LJ who said this: “Suing and being sued by neighbours is a stressful and unpleasant experience.”
“Not all neighbours are from hell. They may simply occupy the land of bigotry....” Also, Ward LJ said this in the case of Oliver v Symons: “All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.”
Other benefits of mediation include that the process of mediation may allow parties to agree solutions which are not “all or nothing”. For example, in the Faidi case, Jackson LJ said that a moderate degree of carpeting might have reduced noise penetrating into the neighbouring flat, but still enabled enjoyment of the timber floor and that this was: “…precisely the sort of outcome which a skilled mediator could achieve, but which the court will not impose.” But how, it may be asked, could a knotty neighbour dispute ever be resolved outside a courtroom? In Faidi Ward LJ said this: “Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. ..” So when should you mediate your neighbour dispute? The Court of Appeal has strongly encouraged using mediation – if negotiation fails – very early on in the dispute. In Bradford v James Mummery LJ said this: “An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive. By the time neighbours get to court it is often too late for court-based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue.” Finally mediation – as a process to resolve disputes – was strongly encouraged in the October 2013 judgment of PGF II SA v. OMFS Company 1 Limited. Here, the claimant had twice written to the defendant asking it to mediate. The defendant failed to respond. The Court of Appeal held that the defendant had unreasonably refused to mediate and penalised it with a large costs sanction. The Court was clear that parties should engage with each other in considering the suitability of Alternative Dispute Resolution, saying “…the provision of state resources for the conduct of civil litigation… call for an ever-increasing focus upon means of ensuring that court time… is proportionately directed towards those disputes which really need it, with an ever-increasing responsibility thrown upon the parties to civil litigation to engage in [Alternative Dispute Resolution], wherever that offers a reasonable prospect of producing a just settlement at proportionate cost.” Elizabeth Repper is a Barrister and Accredited Mediator at Keating Chambers. email: erepper@keatingchambers.com
www.northamptonshirelawsociety.co.uk
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Conveyancing Seminar Northampton
Are you up-to-date on key conveyancing issues? Geodesys is offering a free conveyancing seminar in Northampton on Wednesday 26 March 2014. The three expert speakers bring to life a range of conveyancing risks through illustrative case studies:
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Planning and Development
Flood & Environmental Risks
Presented by
Presented by
Don’t miss this opportunity to learn about recent developments that may affect the way you advise your clients, and the essential searches you should be considering. Seminar Details Venue:
Kings Park Conference Centre, NN3 6LL Time: 08:30 – 12:00 Registration with breakfast from 08:00 To reserve a place for you and / or your team please email cpd@geodesys.com or call James Dilgul on 07921 930035. There is no charge for this event. Geodesys CPD Advert A4 0114 v1
The CON29DW Why rely on anything else?
Northamptonshire Law Society
Developed in consultation with the Law Society and containing authoritative data from the relevant water company, the CON29DW Drainage and Water Enquiry provides conveyancers with all the information they need to provide peace of mind for home buyers, lenders and the reputation of their own practice.
Crucial Information The CON29DW offers underwritten and guaranteed property-level information, alerting home buyers to possible risks. Details of the report include:
• • • • •
Accurate locations of drainage and water assets Adoption agreements relating to these Property drainage and water connections Likelihood of internal sewer flooding An indication of issues that could affect future property development
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Issues Limiting Future Development (and value!)
As the CON29DW comes with unlimited liability for property transactions, there is no need for buyers to take out additional insurance.
A water main or public sewer within the property’s boundary, or in close proximity, could mean that further building work is limited. For sewers a build over agreement would be required, and water mains would need to be moved (at considerable cost).
* Please note that when the report is used for land only transactions the water company’s entire liability is limited to £5,000.
Case study:
Case study:
In one example, the CON29DW failed to disclose that the property was not actually connected to a public sewer, but instead drained to an old septic tank, that was beyond repair. Under the Terms and Conditions of the report, the water company covered the cost of connecting the property to the public sewer. Had the owners not used the CON29DW, they would have had to pay these costs themselves.
When a recent CON29DW stated there were no water mains within a property’s boundary, this was later found to be incorrect. The discovery of a water main in the garden meant the property could not be extended as planned. The Terms and Conditions of the report meant the owner was completely protected, however, and the water company covered all costs of diverting the main.
Geodesys provide the CON29DW for all properties in England and Wales as well as being a reseller of a wide range of search reports. For further information, please contact James Dilgul on 07921 930035 or come along to our conveyancing seminar in Northampton on 26th March 2014 (see opposite page). www.northamptonshirelawsociety.co.uk
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Enigma Northamptonshire Law Society
translation
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We provide both spoken and written translation in any language for any purpose Including Legal work and Law Courts. Our Linguist’s are fully qualified, full time, professionals, and ITI approved. Our Law clients include DFA Law, Davis & Co, Adams Moore, Amanda Weaver, DW Solicitors, Euan Temple, Foys, Anthony Collins, and Kingsley David.
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Tel: +44 (01604) 750 799 email: enquiries@enigmatranslation.co.uk 24
www.northamptonshirelawsociety.co.uk
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Client Tales of A Criminal Lawyer At an early point in my career I dealt with a juvenile client who had been arrested for the attempted murder of one of his friends, Gary.
Chris Bennett Chris Bennett & Co. LLP trading as Bennett & Co. at 42-44 Clarendon Road, Watford, WD17 1DR Email: chris.bennett@bennett-law.co.uk There were, according to the police, two possible versions of events. One was that a youth from a different estate had turned up in a car wielding a sawn off shotgun and approached Gary. There was then a tussle during which the shotgun was discharged into Gary’s leg and the gun was then thrown away by the perpetrator into a nearby garden where it was recovered by the police. The second and preferred version of events was that Gary was pulling the said firearm out of his own jeans waistband when it went off, taking away part of his thigh and one of his testicles. He then managed to walk some distance up the road before throwing the shotgun into a front garden and then collapsing onto the pavement. The police through a lack of witnesses were eventually unable to prove any offence so Gary walked slowly away, Scot free. But Whilst working in London I dealt with a client who was arrested driving a car he had just stolen from the police pound at the rear of the police station. The car had been a getaway car used in an armed robbery the previous week and the police had chased the suspect from it. It had then been placed into the pound pending fingerprinting. A few days after my client’s arrest the car was thoroughly examined and found to have a number of his finger prints inside. The client was charged with taking a vehicle without the consent of the owner, much to his delight! A drug addicted client in the cells at the Magistrates Court was charged with numerous offences and was certainly about to be remanded in custody until the end of his case. He instructed me to tell the Magistrates that unless he was granted bail he would kill himself on arrival at prison. I explained to him that this kind of emotional blackmail was not going to work with the professional Stipendiary Magistrate who was sitting upstairs in Court One. The client however insisted. After completing my bail application containing the said emotional blackmail I sat back down relieved that I had not been criticised for raising this matter in court. The Magistrate announced that he would normally remand my client into custody but in view of the risk of suicide he was going to grant bail. At the Crown Court my firm was dealing with a case from which
‘Whilst working in London I dealt with a client who was arrested driving a car he had just stolen from the police pound’ defence Counsel decided he had to withdraw due to a conflict. The judge asked a young colleague of mine who was clerking the case to stand up and then asked him if he felt that he too was embarrassed. My colleague told him that indeed he was as he had never had to speak to the judge directly in court before. Back at Magistrates Court the Court had recently been given the catchment area of King’s Cross where there was plenty of prostitution still going on on the streets. The King’s Cross Girls as they were known were placed usually together into one large holding cell before going up into court. I had been given the name of a defendant whom my firm had been instructed to represent. I approached the open wicket and shouted the name of the client, Rebecca Green. As one of the girls approached the wicket I got ready to take some notes but she remained mute for a moment . I checked with her that
she was Rebecca. She said in a rather seductive tone “ I can be Rebecca if you want me to be ”. At the Magistrates Court I represented someone charged with a kidnapping offence. He was arrested after his surety had been withdrawn just before the August Bank Holiday weekend, particularly serious for him as he was an ice cream vendor. I completed a full and professionally executed bail application following which the Stipe started to announce that he was remanding the client into custody on the basis that he would fail to appear. The client interrupted starting ”please your honour…” and then insisted on completing his own bail application in a more “Honest John “ manner, making many references to turnover at his business and the good weather. After listening to all this the magistrate decided to grant bail commencing his announcement with the words “oh, all right then...”. At the time I felt that this was somewhat humiliating for me but then I suppose the court felt that it was a Bank Holiday, after all! The future should be interesting as well but, I suspect, not as much fun.
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Northamptonshire Law Society
Is your Marketing healthy, sustainable & relevant? Pamela Bruce is a consultant at Outsourced Marketing Solutions, based in Northamptonshire. www.omsmarketing.co.uk Pamela@omsmarketing.co.uk 07748 185325
No one reading this article can be unaware of the long hard economic ‘winter’ we have endured in recent years and you all will have, in one way or another, taken steps to insulate your business against the worst of its effects. Although economic recovery glimmers on the horizon, market conditions, both economic and legislative, over recent years continue to cast a long shadow over the UK legal marketplace. The future of UK law firms remains uncertain, predictions foretelling a rising number of financial collapses in what has been described as ‘a perfect storm’ of legal aid cuts, banning of PI referral fees, an increasing reluctance of bank lending and the consequences of a prolonged economic downturn (Financial Times, 2013). It goes without saying that legal firms must remain vigilant in dealing effectively and promptly with the ever-changing pressures of the economic, legislative and competitive environment. However, at this point of transition from recession to growth, there are many opportunities to be gained, not least by simply taking time to step back and review, re-evaluate and revise the strategies you have in place to retain and grow your business.
• Multi-task and recycle. Or rather, make your marketing multi-task for you. Seminars, for example, can yield a string of articles for publication, topics for newsletters targeted to clients and prospects, material for on line videos, content for email alerts, blogs, twitter and facebook. Research for a major pitch can be recycled to update sector statements, firm profiles, fee earner biographies for on-line and off-line communication materials. And so forth. • Mind the gap! At times a gap – or even a chasm – between pursing a key marketing campaign and having the means to implement it needs to be bridged. Assess whether you need to do this and be prepared, once in a while, to step outside the established, well-worn tramlines and invest in a new means to reach your destination.
District Law
The following is a checklist of questions that can be used to form a structure for identifying the health, sustainability and relevance of your firm’s marketing strategy: • Have you prioritised you marketing objectives? A perennial challenge facing all law firms, irrespective of size, is how best to invest limited resources, be these time, money or expertise. • Are your prioritised objectives realistic? Or are you spreading yourself and/or your team too thinly? Or are you stepping out of your marketing comfort zone without resources to invest in the required expertise? Know your limitations. • Have you adequately prepared the follow-up to your marketing initiatives? It is taking monotony to new levels to reiterate how many times marketing campaigns fail at the last hurdle (I could write a series of articles, a Tolstoy-esque to me, just on this subject). Do the follow-up: timetable it into your marketing plan, give specific tasks to specific people; review outcomes – look for patterns, stories, trends; take your review and feed it back into your marketing and business strategy; ask yourself, is the time and effort being invested in the follow-up equal to that invested in the initiative upfront? It should be. In summary, Follow-up, feedback, finesse. • Are you in this for the long haul? It is the exception rather than the rule that marketing yields quick wins. Take low hanging fruit in passing but focus on longer term marketing campaigns to achieve a long-term future.
The joint legal service of
is seeking a full time temporary conveyancer with experience of right to buy conveyancing. The work is primarily conveyancing for right to buy transactions but will also involve some shared ownership and simple commercial conveyancing. It would suit a para legal or legal executive with appropriate experience. The post is to cover maternity leave until 31st August 2014, or return of the substantive postholder (whichever is the sooner). Salary: £27,323 - £28,922 p.a. (dependant on experience) Applications may be made online at: www.kettering.gov.uk where further details may be obtained. If that is not possible please request an application pack by calling Human Resources on 01536 534341.
Closing date: 14th February We actively encourage applications from people from ethnic minorities, and people who perceive themselves to be disabled. This is to address an under representation of these groups. Kettering Borough Council is an Equal Opportunities Employer
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www.northamptonshirelawsociety.co.uk
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Timely outsourcing guide helps law firms to work smarter Northamptonshire Law Society
In an effort to introduce legal practices to smarter and commercially focused ways of working, Quill Pinpoint has published a guide on how outsourced cashiering works. Julian admits to having an ulterior motive for the guide’s publication – dispelling any myths about outsourcing being an expensive and complicated solution.
As the profession continues to suffer mass redundancies and law firm closures, as well as face increased competition from the growing number of ABSs and newly merged adversaries, the handy guide aims to instruct the uninitiated on the merits of outsourcing as a means of surviving and thriving in a challenging marketplace.
“The guide gives me the opportunity to set the record straight”, states Julian. “Contrary to often-held beliefs, outsourcing is much more cost effective than running an in-house cashiering team. The monthly fee is based upon activity levels on a pay-as-yougo contract. Moving to an outsourced environment couldn’t be easier. There’s no software to install locally and firms have their own assigned cashier so it’s a friendly service. If practices are just setting up in business or their cashier has recently resigned, they should give us a call”.
The guide explains in layman’s terms the procedure for outsourcing legal accounts as a simplified 5-step process, along with the extensive range of benefits to be gained from alleviating the burden of this heavily regulated back office function. Quill Pinpoint has over 20 years’ experience in outsourced cashiering. Their expertise brings a tried-and-tested cashiering solution direct to law firms. Benefits cited in the report include higher earning power by refocusing on fee earning and marketing; financial savings with less manpower and infrastructure requirements; healthier cash flow resulting from up-to-date bookkeeping; business continuity and disaster recovery planning with continuous cashier support and 24/7 software availability; streamlined annual accounting with a current set of accounts and privileged accountants access to your data; and automatic compliance as the cashiering service adheres to the Solicitors’ Accounts Rules and other regulatory guidelines.
The guide is published on the Internet Newsletter for Lawyers website at http://www.infolaw.co.uk/newsletter/2013/07/quill-pinpoint-howoutsourced-cashiering-works/. As well as its Pinpoint Interactive legal accounts outsourcing service, Quill Pinpoint offers a payroll service for companies who want to reap the full benefits of outsourced support.
If you want to find out more on Quill Pinpoint’s products and services, get in touch by email at info@quill.co.uk, call 0161 236 2910 or visit www.quill.co.uk.
Julian Bryan, Managing Director at Quill Pinpoint, explains how the “difficult market conditions are hitting law firms hard”. “In this harsh economic climate, firms are finding it difficult enough to stay afloat, let alone make a profit”, Julian adds. “We’ve published the guide now because practices need all the help they can get, and may not yet have considered the possibility and advantages of outsourced support. Outsourcing is a survival strategy”.
Quill Pinpoint clients have increased profit costs by over 25%... how could you?
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www.northamptonshirelawsociety.co.uk
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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.
I hope you have all enjoyed and have now recovered from your Christmas and New Year break. This coming year will no doubt continue to be challenging with many new challenges facing the profession. Once again we have received excellent feedback concerning the newsletter and hopefully this 3rd edition will be no different. As mentioned in the last edition we are always looking for more material and wish to involve a wide range of members in all aspects of the production of the newsletter, as well as generating support by way of contributions to the content. If you think you can help and wish to add something or have an idea on content then please let me know. One of the roles of the Society is to look after the well being of its members and you are reminded that the President and Council members have a wealth of knowledge and experience that can be drawn upon. One of the initiatives from 2013 was the setting up of the Small Firms/Sole Practioners Support Group. This group meet every 6 weeks or so to identify and discuss current issues and regulatory challenges that affect all firms in their day to day business. Whilst the meetings are structured and have a formal agenda and minutes, the actual meeting is informal and relaxed. Meetings are normally held in Northampton and commence at 6.30pm and last approx. 1 hour dependent on the topics to be covered. If you would like to get involved or receive more details then please contact me. I mentioned in the last edition that the Society is looking to relaunch the Annual Dinner Dance and that a date of Thursday 27th February 2014 at the Northampton Saints Rugby Club, Weedon Road, Northampton had been identified. Unfortunately for a number of reasons we have not been able to fully commit to this date. We are now looking to set a date in May/June at the same venue. Notification by email will be set to you all once the date has been finalised. Part of the re-launch of the Annual Dinner will be the NLS Legal Awards presentations. Firms and individuals from the Northamptonshire legal sector have been invited to nominate themselves or a colleague in one of 3 categories. They are Firm of the Year, Solicitor of the Year and Young Solicitor of the Year. Some of you have already put forward your nominations and I will hold them until the new dinner date is confirmed. This means that the rest you still have time to put forward your nominations. Forms and further details are available from me upon request. In November last year the joint annual quiz night with the Chartered Accountants was held at Kettering Golf Club. Once again there was an excellent turnout with over 25 teams competing for the first prize. Unfortunately for the first time is several years it was a team of accountants who narrowly edged out a couple of solicitors teams. For the first time the quiz was sponsored by Wesleyan for Lawyers and as a result of their generous support we were able to make £200 donation to the Northamptonshire and Warwickshire Air Ambulance Service. On the night there were a couple of technical problems with the audio system which resulted in a later than usual finish. Having spoken to a number of those who attended we intend to review the quiz format to consider shortening the overall event. Hopefully the new format will be just as varied and enjoyable. 30
www.northamptonshirelawsociety.co.uk
We are currently drawing up a timetable for a range of topics for your CPD points. As ever any suggestions on topics and speakers that you would like to be covered locally would be welcomed. Once again I would like to thank our patrons, The University of Northampton and QPI Legal Ltd. for their ongoing support of the Society and in particular Hawsons Chartered Accountants who have just agreed to become the latest patron of the Society. Phil Smith Society Manager email: philsmithdw@aol.com
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