Northamptonshire Law Society Bulletin Summer Issue

Northamptonshire Law Society Bulletin

ALSO:

• AI, ChatGPT an enterprise risk?

• Data protection and EU Adequacy Decisions

• Climate Change & Real Estate Due Diligence

• Charitable gifts in Wills on the rise and much more

Patroned by:

Managing Editor: Carolyn Coles

Advertising: Simon Castell

Key Account Manager: Denise Castell

Design: East Park Studio

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Media No. 1111

Published July 2023

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Linda Lee - Council Members Report: June 2023

I will be retiring as the Law Society Council Member for Leicestershire, Northamptonshire and Rutland in October of this year after 20 years’ service.

Congratulations to Steven James Mather who will be taking over the seat. I hope you are all as kind and supportive to him as you have been to me over the years.

50+ Years on the Roll of Solicitors

One of the less well publicised jobs of the President of the Law Society of England and Wales was to receive a list each month of all the solicitors who that month had been on the Roll for 40, 50 or 60 years. As President, I then had to painstakingly copy their names onto the relevant certificate and then sign it. It could be a chore, particularly the month when I handed in the completed batch only to be told that all those who had qualified in in 1960 were mistakenly identified to me as those who had been qualified for 60 years and those who qualified in 1950 as those who required a certificate for 50 years. The certificates all had to be done again! Although it did take many hours each month, it was a lovely task as some of those who were delighted to be remembered many years after they had retired would write to me and tell me about their lives and careers.

It seems that the process is no longer one researched by the Law Society and if you have been on the Roll (or know of someone who has) for those periods of time, you must now make an application to the Law Society. The relevant person to contact is Sophie Peterson (Sophie. peterson@lawsociety.org.uk). Simply give her the name and year of qualification a(nd Roll number if you can find it on the Find a Solicitor website). Please do make the effort to do so, it is important that these milestones are marked.

Volunteering -the Solictors’ Assistance Scheme SAS-employment law

In very broad terms, only 1 in 6 of those applying to university to study law will go on to be solicitors. The chance of practising as a barrister is even more remote as only 1 in 15 will get pupillage and only 1 in 110 will get a tenancy less than six months after they completed pupillage.i The odds are presumably even higher for those of us who come from non-traditional backgrounds.

Whatever troubles and dissatisfaction we have faced in life, we have succeeded in achieving our career goals. So how should we celebrate?

The most obvious way is to use our professional skills to volunteer either to give something back to society or to the profession itself.

One of my volunteer roles is to work with the SAS as a panel member giving advice and as its Chair. I have had a lot of fun with that name over the years, implying that I might at any moment spring through a window with a grenade between my teeth. In fact, SAS stands for the Solicitors Assistance Scheme.

The SAS was formed over fifty years ago. We are a small group of volunteers who aim to serve and support the profession they are proud to be part of. Each volunteer has to demonstrate their experience and expertise in the relevant field in order to become panel members of the scheme. They are all in private practice and are giving their time freely with no expectation of reward.

We recognise that it can be extremely stressful to face issues that arise during practice as a solicitor and that practitioners will often not know where to turn or where they can seek advice and speak freely to somebody with relevant knowledge and experience, who will listen and understand and give a pointer in the right direction. Early advice can often provide a solution or prevent a potentially difficult situation becoming worse.

The objective of the scheme is to be an informed friend in need, and to provide objective initial guidance to assist the solicitor to understand the options and the best way forward. The scheme guarantees one-hour’s free advice.

It is important to have confidence in the fact that scheme members are expert in their fields and can confidently advise in respect of concerns that you have whether that be an SRA investigation, an employment problem (as an employee or as an employer), a partnership/member dispute, or a fraud matter. The scheme members are experienced in dealing with the relevant area of law. If the particular scheme member cannot for any reason assist, they will signpost to another member or another support service, such as LawCare and the Solicitors’ Charity who we work closely with.

As an organisation, we are at a crossroads, we are now in a position where we will be unable to offer advice in employment law from the autumn as we lack sufficient volunteers to continue to provide this service.

Many of our employment law calls come from trainee and junior solicitors and their problems can often be resolved within the one free hour’s advice offered.

If you are an experienced employment lawyer, please consider applying to join our scheme. We will be circulating a reminder and a copy of the application form several times over the coming months.

Details of the scheme and the application form can be found here:

https://www.thesas.org.uk/members

Or please do contact me if you would like to discuss becoming a panel member.

Remember, “It’s easy to make a buck. It’s a lot tougher to make a difference.” ii

Linda Lee has been Council Member for Leicestershire, Northamptonshire and Rutland since 2003. She is a past President of the Law Society of England and Wales and is the current Chair of the Professional Indemnity Insurance Committee and a member of the Policy and Regulatory Affairs Committee, the Regulatory Processes Committee and Access to Justice Committee. She is current Chair of the Solicitors Assistance Scheme. Linda is an experienced litigation solicitor and is a Consultant at Weightmans, where she specialises in solicitors’ disciplinary, compliance and regulatory work. She can be contacted by email at: lindakhlee@aol.com

i Very roughly calculated from statistics collated by the Bar Standards Board, the Law Society and the Bar Standards Board https://www.barstandardsboard. org.uk/news-publications/research-andstatistics/statistics-about-the-bar/ call-to-the-bar-and-tenancy.html, https:// www.lawsociety.org.uk/career-advice/ becoming-a-solicitor/entry-trends, https://www.sra.org.uk/sra/researchpublications/regulated-communitystatistics/data/routes_admission

ii attributed to Tom Brokaw of NBC News.

Article by Linda Lee Council Member

Data protection and EU Adequacy Decisions

EU-UK Adequacy Decision

On 25 June 2021 the European Commission adopted two Adequacy Decisions for the UK - one under the General Data Protection Regulation (GDPR) and the other for the Law Enforcement Directive.

An Adequacy Decision is a formal decision made by the EU which recognises that another country, territory, sector or international organisation provides an equivalent level of protection

Northamptonshire Law Society Officers & Council Members 2022

President

Jabeer Miah

Deputy President

Maurice Muchinda

Immediate-Past President

Sharine Burgess

Honorary Secretary

Ika Castka

Honorary Treasurer

Afua Adane

Constituency Member & Past President

Linda Lee

Council Members:

David Browne

Laura Carter

Michael Orton Jones

Euan Temple - Past President

Edward St John Smyth - Past President

Afua Adane

Lynsey Ward Sarah Franklin Society Manager

Carolyn Coles

Northamptonshire Law Society

The Gatehouse, Stable Lane

Pitsford

Northampton

NN6 9NG

Tel: 01604 881154

Email: Sec.nls@outlook.com

All Council members should in the first instance be contacted through the Society Manager.

for personal data as the EU does. Personal data can now flow freely from the EU to the UK where it benefits from an essentially equivalent level of protection to that guaranteed under EU law. The Adequacy Decisions also facilitate the correct implementation of the EU-UK Trade and Cooperation Agreement of 30 December 2020 , which foresaw the exchange of personal information, for example for cooperation on judicial matters.

Both Adequacy Decisions include strong safeguards in case of future divergence, such as a ‘sunset clause’, which limits the duration of adequacy. The European Commission will start work later in 2024 to decide whether to extend the Adequacy Decisions for the UK for a further period up to a maximum of another four years. If they don’t extend the decisions, then they will expire on 27 June 2025.

The UK’s data protection system continues to be based on the same rules that were applicable when the UK was an EU Member State. The EU accepts that the UK has fully incorporated the principles, rights and obligations of the GDPR and the Law Enforcement Directive into our postBrexit legal system.

With respect to access to personal data by public authorities in the UK, notably for national security reasons, the UK system provides for strong safeguards. In particular, the collection of data by intelligence authorities is, in principle, subject to prior authorisation by an independent judicial body. Any measure needs to be necessary and proportionate to what it intends to achieve.

EU-USA Adequacy Decision

On 10 July 2023, the European Commission adopted its Adequacy Decision for the EU-US Data Privacy Framework (DPF). The Decision concluded that the USA does now ensure an adequate level of protection for transferring personal data from the EU to the USA and supersedes the ECJ’s decisions in Schrems which invalidated then prior frameworks for EU-to-US cross-border data transfers

The DPF creates a lawful transatlantic framework that allows the free flow of data from the EU to DPF-certified companies located in the USA. It will no longer be necessary for these transferring entities to implement additional safeguards (e.g., binding corporate rules, the European Commission’s standard contractual clauses, industry-specific codes of conduct or EU certification mechanisms) to ensure that personal data continues to be protected under the EU’s General Data Protection Regulation.

Northamptonshire Law Society

Article by Euan Temple

Climate Change: The New Frontier of Real Estate Due Diligence

As part of our Pledge to Net Zero, at Landmark, we have committed to work positively toward the 2050 global net zero goals. We’ve put climate change at the top of our agenda, and we want it to drive decisions across the property and real estate industry.

Together, as a community, we have the power to make our innovations and choices make a difference. Because if we’re going to make a difference, climate change has to be at the front of our minds.

To find out where the rest of the industry stands and where it’s heading, we reached out for conversations with industry experts to bolster our understanding of the property sector. Those conversations grew into a collection of learnings we published and shared as our Climate Change Reports: The New Frontier of Real Estate Due Diligence 1 . The paper explores the ways the property and real estate industry is working to build a better planet.

Between a rock and a hard place

In her white paper contribution, Theresa Wallace, co-founder of The Lettings Industry Council (TLIC), identifies multiple quandaries facing landlords, tenants and letting agents who want to do the right thing in the face of climate change risks – yet lack legislated direction.

“With no concrete guidelines or advice, landlords are unable to effectively plan and act. Many landlords want to do the right thing; they want to make the changes… but first they want to know what the right changes are.”

She warns the risk goes beyond the effects of climate change, citing the erosion of the rental sector and an acute

crisis for renters. Therefore, she argues, both landlords and agents need help in the form of information, education and the right tools to make a difference.

Finding the way forward

“Until we know the regulations, boundaries, caps, structures, dates and exactly what standards landlords must comply with, the lettings industry is in limbo. Landlords are waiting to take that next step. They’re waiting to hear, plan and act. In the meantime, they might fall back on guesswork – but that could prove expensive. Agents and advisors are none the wiser, either.”

As the industry waits for further information and guidance, Theresa shares cautionary tales of landlords taking proactive measures; one who refitted a whole block of flats with electric heating, and unwittingly lost his C rating. Another successfully found an electric heating system capable of getting the EPC to a C rating, but at massive expense. Little wonder, then, that some landlords are delaying energy efficiency works until they hear further.

Theresa and the members of the TLIC are united in their desire to improve standards across the sector, she encourages collaboration between parties to provide one voice in support of a regulated industry. She draws on European case studies and examples from other industries to explore a streamlined future for both tenants and landlords.

1: https://climatechange.landmark.co.uk

Think local government is all missed bins and potholes? Think again!

In this article Sarah Hall, Deputy Director of Law and Governance at West Northamptonshire Council explores life as a Local Government Lawyer.

I want a career in local government......said no law student, ever! Such a career choice is practically unheard of and the opportunity simply isn’t promoted in universities. However, with over 4,500 local government lawyers and governance officers across the UK, a career as a local government lawyer can be incredibly rewarding offering variety, opportunities and great benefits.

Having gained my degree at the University of Northampton I then went on to complete my LPC. Fresh from university I was undertaking some temporary admin work for the NHS when my boss suggested a walk across the road to Broxtowe Borough Council to enquire whether there were any vacancies in the legal team. I didn’t even know local authorities had legal teams or what they did. Intrigued I investigated and 2 months later was their newly appointed legal assistant. That was 2001. I competed my training contract with Broxtowe in 2004 and am now on my sixth local authority. I’ve never worked in private practice and love the work that I do.

So, what do I do?

Fundamentally local government lawyers are there to protect the local authority and ensure that their actions are lawful. However, we do much more than that. We serve the public and we uphold the law. We protect the vulnerable, we safeguard green spaces and the work that we do is for the benefit of the residents and businesses in our local authority area. Of course, we don’t do this in isolation, teams across the council lead on these cases, we simply provide the legal back up.

I trained as a planning lawyer, but that evolved into a focus around information governance, which then developed into corporate governance. However, along the way I have done a bit of everything, litigation, housing, highways, property, regeneration, contracts and employment - the variety is both the beauty and the challenge of working in small district or borough councils. Larger authorities such as city, county and unitary authorities do however offer the opportunity to specialise and work in designated teams. But even in those teams there is lots of variety. My favourite story comes from a colleague who worked in local government for 34 years. Years ago when he was first establishing himself as a local authority lawyer, he was contacted by the police in connection

with a lion (yes you’ve read that correctly, a lion) that had been spotted on the balcony of a block of flats. It turned out it was the local authority’s responsibility to deal with it. Tales such as that demonstrate the variety of work we undertake. One day you could be working on a multi-million pounds regeneration contract, prosecuting fly tippers or sitting as legal advisor to a licensing panel, the next you could be advising on the safe removal of a lion!

What all local authorities have in common however is a fixed client base, offering in-house lawyers the opportunity and ability to build relationships with their client officers. These officers instruct you and seek your support to help them meet their objectives and ultimately help the council to meet its priorities in delivering services to the communities it serves. As Debbie Carter-Hughes, Executive Director of Pathfinder Legal Services Ltd, a local authority owned legal company, says “Working for professional clients (rather than lay individuals) brings its own challenges but also means that you are not having to repeat the simple things, you get to develop a great relationship with your clients and you are “part of the team”.

So, if you are thinking of joining a local authority where do you start?

Firstly, if you are a law student check out the Lawyers in Local Government Website (llg.org.uk). There is a wealth of information on there and they run annual work experience programmes for students wanting to experience life as a local government lawyer. Having attended the University of Northampton law careers fair recently, not a single student I spoke to was aware they could have a career in local government. However, it can be a brilliant option for utilising and building on the skills and knowledge developed through university. As Debbie Carter-Hughes explains “Local authority legal work is not only rewarding but is varied in nature; no two days are the same. The breadth of work is great and calls on all the skills that you learn in your academic and professional studies (advocacy, drafting, negotiation etc).”

But what if you are an established lawyer working in a different sector thinking of making the move into local government?

Within Northamptonshire there are two unitary local authorities in addition to Pathfinder Legal Services Ltd. All three organisations provide legal services to local authorities covering the full range of functions that local authorities deliver. Legal teams vary in size, but all have a variety of roles ranging from Legal Assistants to Heads of Legal with Lawyer, Senior Lawyer and Principal Lawyer posts in between. Gone are the days of insisting on local government

experience, we’re more interested in the transferable skills that people can bring to the team. There are also plenty of opportunities to grow and develop within local government with qualifications, management training, upskilling and mentoring routinely available. Sanjit Sull, Assistant Director for North Northamptonshire Council adds “Local government provides a great opportunity to develop your legal career. The workload is varied and provides an opportunity to directly impact development of the local authority area. The environment also supports development of soft skills through project work linking with colleagues from across departments.” I shouldn’t also forget the practical benefits such as generous annual leave, flexible working and a local government pension to name but a few.

What about the type and value of the work within local government?

Aside from the lion on the balcony case, there is also the opportunity to get involved in unique and high-profile matters. As a trainee I gave the first advice on renaming the A52 Brian Clough Way. I also appeared on the first licensing appeal cases in Nottinghamshire and I lead on a judicial review of a decision of the Secretary of State following a planning appeal decision...and won. Debbie Carter-Hughes agrees “I have been offered the opportunity to take on some nationally significant work (and many featured in the local or national press) whilst working for different local authorities and making changes which help and assist the wider public is great. I would encourage anyone looking for

a challenging legal career to consider working for a local authority legal team.”

There’s another aspect to the role of a local authority lawyer which I haven’t yet mentioned, and that’s the ability to get involved in local government administration. Whether that’s assisting Councillors in supporting their communities or working on an election. The breadth of experience and opportunities to develop skills on offer in a local government environment is hard to beat. There is nothing as exciting as counting votes until 4am only to find that there are just two votes between two candidates! Yes, we recounted several times before the election was finally declared.

The opportunities within local government both for those entering the legal profession and for those who are already established are endless. The move can be made at any time and I’d encourage anyone considering a change to go for it. The final thoughts on a career in local government have to go to Deborah Evans, CEO of Lawyers in Local Government, our support body and national voice “If you truly want to make a difference; seek a legal career that enables you the opportunity to transform lives of vulnerable people, to assist in the regeneration of your local area or the planning of communities or assist your local authority in delivering hugely important local services. Local government offers a friendly, inclusive community of lawyers, flexible working, and a myriad of development opportunities to start your career off in the right direction. You won’t regret it.”

AI, ChatGPT, and the professional services firm –an enterprise risk?

Marsh supports a significant number of professional services firms. Recently, these clients have started raising enquiries with us about ChatGPT, an artificial intelligence (AI) powered language model, as well as AI tools in general. This article considers the risk from this new technology from various perspectives, and offers some thinking about how to adapt.

Clients using free AI tools

Free public use of ChatGPT-type technology potentially challenges aspects of the traditional knowledge and experience advantage professionals rely upon to generate profit. The possibility of a lay person, with free AI support, undertaking certain tasks without professional support may further threaten business models. This is a strategic risk - which will develop uniquely for different client sizes and by service lines. The majority of material shared online is probably categorised as ‘know what’ - factual information and opinion on what the processes and rules are, rather than ‘know how’ – asking how to actually execute specific tasks. However, despite media reports indicating the latest generation AI’s apparent ability to pass professional exams, there is evidence that wrong answers are also often created. Given the speed of progress, it is probable that AI solutions will be reliable soon. Consequently, firms should assess the impact on services they offer and the likely increased frequency of limited retainers that may in turn require additional controls to manage risk.

Professional services firms as users of free AI

It may prove difficult for professional services firms to control colleague’s use of external AI services. However, users need to be mindful that questions asked of AI systems could potentially reveal privileged or confidential information. Additionally, using these services for work-related tasks may also breach intellectual property rights. Even utilising such services to trawl and identify if others have made similar enquiries, might reveal an interest. Enquiry timing might reveal strategies, plans, and concerns, and those holding data stemming from enquiries may use it for their own purposes. Furthermore, it may possibly be obtained by bad actors, who could seek to exploit it or find ways to poison the data pool to manipulate results. Firms may need to modify existing employment procedures to explicitly clarify that such usage is not permitted, if that is the position chosen.

Changing service delivery by professional services firms

ChatGPT may give a lay user confidence to take steps themselves that a professional might otherwise undertake. However, current reliability of results is questionable. Many professional services firms deploy AI to support clients with more interactive FAQs and some basic services. For larger firms, pressure from clients for efficiency and practitioner’s own use of AI (as part of internal support), have existed for some time. For example, accounting firms use AI to review documents such as board minutes and leases.

The professional service provider still has significant value to offer, despite AI’s free information and expertise. Firms can provide reliable operating processes and deal with situations that are more bespoke, and potentially use AI products for more standard situations. Indeed, many firms are investing heavily in database access to enable clients to self-serve with advice. As an example (although not necessarily using AI), one law firm provides access to data on the average settlement size for different types of employment allegations. Rather than seeking individual advice, the user enters the location and allegations to receive an idea of average reported settlements.

Are risks of providing these services covered by professional indemnity insurance?

For law firms regulated by the Solicitors Regulation Authority (SRA), we would expect professional indemnity claims— arising out of reliance on such advice to fall to the wide terms of cover provided by the SRA Minimum Terms and Conditions. These terms of this compulsory minimum cover are considered the broadest of any professional indemnity insurance (although even wider cover can be negotiated). More generally, it would be prudent for professional services firms to consult with their broker and regulator. This can prevent potential surprises about whether claims are covered and if the service was compliant. Requirements of professional regulators and the Information Commissioners Office (ICO) will also need to be heeded. Accounting and surveying bodies are at various stages of considering this, but in the meantime, the ICO has issued specific guidance.

Thinking about both sides of the issue – users and providers

Overall, we consider that there are significant risks both as a provider and user of AI services, which ought to be monitored and managed appropriately.

Professional services firms as providers of internal AI services

Firms are developing support systems for colleagues internally. More logical and higher quality search access and solutions to policies, procedures, and ‘know-how’ may be extremely useful. However, a key issue is the ongoing effort required to maintain these systems with up to date information. Additionally, it would be unsurprising if some clients seek to limit use of highly sensitive information to a particular work group, albeit this is not a new issue. If security is breached - and internal AI compromised - the usage data or corruption of data and AI based results may also create reputational risks for the firm and clients.

Professional services firms as providers of external AI services

As this is a significant area of risk, it may be useful to treat what is being provided as a product. As a reputational risk - and a novel area - we believe it is worth considering whether use of these tools and creation of products creates fundamental new hazards. We have opted to use the bow tie risk tool as a lens to consider prevention and mitigation.

Most users find it helpful to both define and order the key areas of the diagram:

1. Identify the ‘hazard’.

2. Define the ‘top event’ – how the ‘hazard’ becomes problematic or uncontrollable.

3. Identify the key ‘threats’ enabling the ‘top event’, and ‘barriers’ that address those ‘threats’.

4. Consider the ‘consequences’, and position appropriate ‘mitigants’ where possible.

In this case:

1 Hazard/Top event – does use of AI or creation of AI products create a fundamental change to the source of risk (hazard)?

o Use of AI: In our opinion, AI use does not create a new ‘hazard’ for firms, it remains the holding of sensitive data. The ‘top event’ is that control/security of the data asset fails and loses value or publication damages the client’s business.

Product risk is familiar to some professional services firms; particularly IT developers and brokers. The Financial Conduct Authority (FCA) publishes guidance on this regularly. Although the focus of much of this is consumer exposure, the governance methodology is worth considering. Specifically, brokers selling products are expected to install governance and oversight processes to ‘design, approve, market, and manage products throughout the products’ lifecycle to ensure they meet legal and regulatory requirements.’ Historically, software developers and electrical engineering insurance policies have often limited or excluded claims completely related to product performance failure. Losses arising from negligently made claims about product capabilities in sales processes, were often not covered. It should also be noted that much of the latest FCA Consumer Duty rules will apply to retail customers and SME business, not just the small individual consumer from 31st July 2023. Although expectations of other regulators about duties to consumers might differ in relation to AI products, we would be surprised if they diverge much from this approach.

o Creating and selling AI products: However, creation and distribution of AI products for clients does create a new ‘hazard’; which in our view requires greater thought.

As more pure professional services firms may now be offering what are considered products, we suggest implementation of roles, processes, and procedures for these products’ design, approval, marketing, and maintenance. This enables firms to control the risk, test products, and check feedback. The FCA model’s product lifecycle envisages the need for product withdrawal or enhancement to ensure current needs are met. This is an important issue. In a mature risk environment, such products are internally risk managed and licensed for a set period; after which they need to re-qualify through the compliance process. Simply, it is understood that without ongoing review and updating, the product will fail.

In financial services, governance, assessment, and product refreshes were developed in response to market failuresparticularly of financial services products, such as endowments and finance insurance. Professional indemnity insurers of professional services firms have experience of suitability issues

Below is an example of the tool we developed for law firm cyber risk:

arising when homogenised advice is given to large numbers of clients - and the product does not perform as expected. In the consumer space, these have created a significant number of claims, usually under £100,000 in value.

Firms that are designing and delivering AI products to clients should be cognisant of this risk. Subsequently ensuring there is robust product design and management with ongoing testing at least annually; possibly more often depending on feedback and changes. Providing a governance structure for a product, or putting the product through such a process, is sometimes recognised late in the product development cycle, becoming an unwelcome drag on product launch. However, experience shows that it is a necessary step.

For large professional services firms, an AI product is unlikely to generate wrong results for tens of thousands of users, making relatively modest claims - as happened in financial services. However, if outputs are wrong, the product could result in identical deficient advice being provided to multiple clients in a short period of time, without much chance of detection.

Reviewing the bow tie model, we can consider what barriers are in place to prevent product failure and how they relate to threats. A common problem can occur when the threats alter and the system does not detect that a barrier has been breached. If the overall system can detect that the barrier has been breached - then according to the model - this is an ‘escalation factor’. An oversight review of the model should then be triggered along with a potential re-design of the ‘barriers’. Without this review, the likelihood of widespread product failure is more significant.

Drawing on previous involvement in the development of on-line service models, the cost of maintaining and testing product suitability is often significant; potentially eroding the apparent profitability of such approaches. There is also a governance issue regarding who should be responsible for ongoing maintenance and testing - and if they will be independent enough and motivated to undertake the role. These issues are often unpopular with innovative thinkers, who are attracted to creating novelty by leveraging know how.

It may appear attractive and innovative to create opportunity from transforming professional services and offering what have traditionally been bespoke services as a product. However, professional services firms must develop more back office assurance and infrastructure to support delivery of high quality service through such products. Maintenance, design refresh, and testing must be factored into the cost, in order to manage product risk.

Article by John Kunzler and Victoria Prescott

Looking ahead to the October renewal season

As we rapidly approach the summer and the halfway point in the 2023 calendar year, I am pleased to advise that there is cause for optimism amongst well-run firms with regards to PII market conditions as we look ahead to the October renewal season.

The vast majority of leading participating insurers have an appetite to actively grow their respective portfolios with the addition of new business. Furthermore, new capacity is set to enter the marketplace before October, meaning firms with a desirable profile are going to have even more insurer options available to them at this year’s renewal.

If we reflect briefly on what happened in the now well-populated recent spring renewal season, although a proportion of insurers did wish to increase rates –albeit more modestly than they have in recent seasons – the majority of insurers’ rates plateaued. This is a reflection of the positive dynamics within the PII marketplace, with more active competition for business. Extended policy periods also returned to availability, albeit in limited number. Nonetheless, this signals a sea change to recent years.

The one slight frustration of the spring renewal season was premium financing, with costs of borrowing increasing throughout the period, largely as a result of macroeconomic factors. Finance providers were also strengthening their due diligence processes, adversely impacting the speed of decision-making and processing of loans. We anticipate that the due diligence process will become even more stringent as we move into the October renewal.

With the likelihood of the emergence of new insurer capacity on the immediate horizon, coupled with an increased appetite among insurers already active in the market, wellrun practices can expect a softening in the rates charged come October. What is not yet known, is how diluted rates will become. We also expect extended policy periods to become more readily available, with insurers once again offering the choice of up to 18 months for a portion of their portfolios.

Without wishing to dampen the positive tone of this update, the one caveat to give is that the dilution of rates doesn’t necessarily mean that there’s set to be a dramatic reduction of premiums. For many firms, rising inflation has fuelled an increase in fee income, which will naturally have an impact on the premiums charged by insurers. It does mean, however, that for well-run and successful practices, the cost of PII

premiums should not erode profit margins further, as it may well have done at recent renewal periods.

It will be of no surprise that the softening of rates may not positively impact the entire legal profession of England and Wales. This is particularly true of practices that have experienced an adverse claims position, and those that are heavily involved in perceived higher-risk practice areas. Practices should not be complacent, and cannot expect premiums to fall without any effort on their part. I cannot stress the importance in providing your chosen representative(s) with the appropriate evidence to share with the underwriters, in order to justify applying positive price corrections.

To capitalise on the improving insurance market conditions, our recommendation to you would be to commence the renewal process early. Most importantly, take the time to prepare a quality presentation that provides a positive reflection of your practice. As Lockton have advised countless times, this is your shop window for insurers, so use the opportunity wisely. It is prudent to remember that approximately two-thirds of the legal profession of England and Wales renew at the end of September, so you will be vying for the attention of the underwriting teams along with a substantial number of your peers.

Whilst insurers have an increased appetite for business, their underwriting teams will only have a finite amount of time to undertake their risk assessments. With that in mind, make sure your practice stands out from the crowd. Should you have experienced claims, provide a narrative of the situation, along with detail of what measures you have implemented to prevent their repeat. Simply stating that the fee earner responsible for the claims is no longer with your firm, is not necessarily what insurers are looking for.

I encourage you to use this opportunity to help your chosen representative(s) to educate insurers about your firm, what you do, and how you do it. Consider the fact that specialist underwriters are not solicitors, and although they will understand risk and the ramifications of any mistakes, they may not understand the intricacies of your specialism entirely. At the same time, no two practices are identical, so articulate why you are better. As they say, perception is not always the reality – an underwriter could always form an opinion which is incorrect. And once opinions are formed, they are much harder to change.

In terms of timescales, we recommend providing the presentation at least six, but preferably eight weeks in advance of

your renewal date. Begin exploring finance options much earlier in the process than you have done so previously, given that the process is longer, and you may need to shop around to get the most favourable terms.

Choose your representative(s) wisely, acknowledging the fact that it would not be advantageous to scatter your presentation across the marketplace, as this may dilute the work that you have done to present your practice in a positive light. There is a possibility that your representative may not be able to reach all of the active participating insurers directly, and this may well result in you not being able to achieve the optimum solution possible for your practice. Before selecting your representative(s), establish which insurers that they can approach directly on your behalf. You will not truly benefit from an improving PII landscape should you inadvertently exclude half of the active participating insurers.

Finally, as long-term supporters of the Northamptonshire Law Society, we would welcome the opportunity to canvass the market for all members, or as a minimum provide each of you with a second opinion. We have direct access to more active participating insurers than any of our peers, and will have insurer solutions that your current representatives cannot provide for you.

I do hope that you take up this offer, and wish you all the best.

Article by Brian Boehmer Partner

E: brian.boehmer@lockton.com

W: www.locktonsolicitors.co.uk

Northamptonshire Law Society

The evolution of the drainage and water report

Launched in 2002, the CON29DW has become a key report in the array of searches conducted by conveyancers and property practitioners over the past 21 years.

This can cause issues in two specific cases. 1) There are occasions where the report highlights a sewer running under the property with no build-over agreement in place. These can be consented to retrospectively however in some cases where the buildings or extensions contravene building control they may need to be altered or demolished. 2) Unmapped drains will not be on public records and therefore any personal or regulated search won’t pick up the issue or have the resource to resolve the query.

In such cases the provider will infer or insure the response; a situation that can result in inaccurate information being reported. There are plenty of examples of properties which for all intents and purposes look as though they should be connected to the mains, which are in fact serviced by a cesspit or septic tank. In a recent example we were involved in it was easy to assume the properties would be connected to the proximate drain identified under the nearby road. Multiple regulated reports incorrectly inferred as much, however, both properties were served by septic tanks.

Owned by The Law Society, the suite of CON29 searches covers enquiries of local authorities, residential and commercial drainage and water enquiries, and coal mining enquiries.

Pre-2002 drainage and water enquiries were typically included in the local authority search, with a limited amount of information made available to prospective homeowners about the location of sewer and water mains, whether the property was connected to mains, and who was responsible for maintenance and billing.

The dedicated CON29DW provided more detailed information for conveyancers and home movers and importantly created a more structured approach to what information was provided and the format of the report.

One of the biggest challenges with data is what to include and what not to include. As more and more data becomes available the temptation is to include it in reports as a way to reduce liability; the more information provided, the less comeback there is on the report provider. We see this debate playing out across the search industry as data providers add more information and data into reports, with many now running 40, 50 and up to 60 pages long.

The key is the interpretation of this data; distilling what conveyancers and homeowners need to know quickly and concisely so as not to delay the transaction.

The drainage and water industry had its own historic moment in October 2011 when private sewers serving more than one property and lateral drains that extended beyond the property boundary became the responsibility of the water companies. Up to that point responsibility for mapping these lay with the local authority and it is well-known and acknowledged in the industry that records are incomplete.

By providing key, gold-standard upfront information on drainage and water connections and assets, the homebuyer can be empowered to either proceed or negotiate with confidence with anything that may emerge later on when ordering a CON29DW. No inferring, no insuring and most importantly, no ignoring!

The CON29DW through its various iterations since 2002 continues to provide, key information and reassurance for home movers and conveyancers. The current version answers all 23 Law Society standard enquiries covering issues as diverse as water Pressure, internal sewer flooding, method of charging, and any known pumping stations, as well as the identified sewer drainage and clean water connections.

It remains under review for relevance by The Law Society and the industry body Drainage and Water Searches Network (DWSN) who provides governance around data standards for 9 utility providers subscribed and as part of adherence to the DWSN Code of Practice, ensures that every CON29DW is covered by a minimum of £10m indemnity insurance… reassurance I would hope, that conveyancers and their clients are best served by obtaining the official CON29DW from their utility provider.

Jonny Davey is Head of Product and Business Development at Geodesys

One in four wills written by solicitors and professional will-writers now include a charitable gift

The 2022 Savanta Will-writing tracking study* was commissioned by Remember A Charity, a consortium of UK charities working to promote charitable gifts in Wills amongst the British public.

Findings reveal that almost a quarter (24%) of Wills handled by UK legal advisers now include a donation to charitycontinuing a steady rise year-on-year for the past decade, up from 16% in 2014.

to charity. Over half (56%) of those said they found charities easy to deal with. Only 13% indicated said they didn’t find charities easy to work with and the top cited reason (22%) for that was that they communicate too often.

Lucinda Frostick, Director at Remember A Charity, says:

“Once clients have taken care of their family and loved ones in their Will, the option to leave a charitable gift and lasting legacy to positively impact the world after they are gone can be hugely empowering and inspiring. This benchmarking study charts a continual rise in the proportion of Wills made through solicitors and Will-writers that include a charitable gift. These donations may not arrive for some years yet, but they will fund vital services and charities’ core costs for generations to follow.”

Remember A Charity runs a free Campaign Supporter scheme for solicitors and Will-writers, providing promotional resources and useful guidance for referencing legacy giving with clients. Find out more at www.rememberacharity.org.uk/about-us/forsolicitors-will-writers

Remember A Charity Week takes place 11-17 September 2023.

Gifts in Wills are the largest single source of voluntary income for charities in the UK, raising £3.85 billion** for good causes annually and funding vital charitable services.

Over a third (36%) of all solicitors and Will-writers say they always raise the option of a charitable legacy with relevant clients, while less than one in 10 (9%) say they never do so. Of those who don’t always raise the issue, more than one quarter (26%) say the most prominent reason is because they do not want to influence their client’s decision.

When it comes to the barriers to legacy giving, professional advisers believe the most common issues are that clients want to leave their full estate to their family (83%), that they have difficulty choosing which charity/charities to support (38%) or that it may cause/lead to dispute (38%).

Three-quarters of the firms in this survey (77%) have acted or assisted in the administration of estates that include a legacy

*Savanta, Will-Writing Tracking Study 2023

Commissioned by Remember A Charity and carried out by Savanta, this Will-writing tracking study explores how professional advisers view and approach charitable bequests when discussing Will-writing with clients. It is based on Computer Aided Telephone Interviews (CATI) that were conducted from 14 December 2022 to 25 January 2023 to gather the views of 230 solicitors, professional Will-writers and IFAs across the UK.

**Smee & Ford, Legacy Trends Report 2023 and Legacy Foresight 2023

Graph showing the average proportion of Wills made through solicitors and Will-writers that include a charitable gift.

New findings out today show that solicitors and professional Will-writers are playing an increasingly important role in charitable Will-writing, with almost threequarters (73%) always or sometimes raising the option of leaving charitable bequests in Wills to their clients.

Finders International: Leading the world of Probate Genealogy

organization representing elite firms across the world. Additionally, we have been honoured to be featured on BBC 1's Heir Hunters for five series and over 70 cases, as well as winning multiple awards, including Best Probate Research Firm of the Year at the Probate Research Awards for the past four years.

Q3. How has Finders International's appearance on BBC 1's Heir Hunters impacted business, and have you seen an increase in inquiries?

Q1. What does Finders International do and what services does it offer?

At Finders International, we are a probate genealogy company that specialises in tracing heirs to estates, properties, and assets worldwide. We offer a range of global research and support services, including locating missing legatees and beneficiaries all over the world, obtaining family documents, carrying out overseas bankruptcy searches, missing will searches and handling the difficult aspects of overseas assets such as multi-jurisdictional share portfolios, as well as carrying out all important family tree verification work for Statutory Will Applications. Our clients include solicitors, estate administration professionals, and financial institutions in the private sector, as well as local authorities, coroners, and hospitals in the public sector.

Q2. What are the biggest highlights of Finders International's 26 years of existence?

Finders International was founded in 1997 by our MD, Danny Curran, in a small office in Southwest London. Since then, we have experienced tremendous growth, expanding to over 150 personnel across four offices in North London, Yorkshire, Edinburgh, Dublin, and Sydney. As an unregulated industry, we have always focused on raising the standards of our industry and have looked to selfregulate as much as possible. We are proud to be a founding member of the International Association of Professional Probate Researchers, Genealogists and Heir Hunters (IAPPR), an international

Our appearance on BBC 1's Heir Hunters has raised the profile of probate genealogy among the public and helped them understand a previously unknown niche area of work. We receive numerous inquiries from people interested in delving into their family history, and some of the stories they share are of real historical interest. Additionally, we have had stories relating to beneficiaries in the press, demonstrating the continued interest that the public has in their family history and how it ties into the world of probate genealogy.

Q4. What sets Finders International apart from other probate genealogy companies?

At Finders International, we believe that our commitment to excellence and our dedication to our clients sets us apart from other probate genealogy companies. We understand that dealing with estate and asset matters can be a difficult and emotional process, which is why we approach every case with empathy, professionalism, and attention to detail. Our team of highly skilled

researchers and support staff work tirelessly to locate missing beneficiaries, assets, and wills, ensuring that our clients receive the best possible service. We are also proud to offer a range of pro-bono services, helping people reunite with lost family members or reclaim family heirlooms. Additionally, as a founding member of the International Association of Professional Probate Researchers, Genealogists and Heir Hunters (IAPPR), we are dedicated to raising the standards of our industry and promoting best practices. Overall, our commitment to excellence, professionalism, and client satisfaction is what sets us apart from other probate genealogy companies.

Q5. What are your plans for the future of Finders International?

At Finders International, we are always looking for ways to improve our processes and better serve our clients and beneficiaries. Our plan for the future is to concentrate on improving our services by investing in new technologies and training for our staff.

We also recognise the vital role we play in helping legal professionals through the difficulties that can occur during the administration of an estate. We want to continue building strong relationships with our clients and help align the two industries of probate genealogy and legal practice by working together to promote best practices, ethical standards, and transparency.

Overall, we are committed to remaining at the forefront of the probate genealogy industry, providing exceptional service to our clients and helping families around the world discover their past and secure their future.

If you would like further information on Finders International and the services they provide, visit their website www.findersinternational.co.uk, call 0800 085 8796 or email quotes@findersinternational.co.uk

Danny Curran

Northamptonshire

EXPERT WITNESS INSTITUTE ONLINE CONFERENCE 2023

Impartial, independent expertise for justice: enhancing expert credibility | Friday 12th May 2023

The Justice System depends on expert evidence

EWI held an excellent online conference which was very much the same formula as in previous years…. and it works! Barrister, Saba Naqshbandi, chaired the conference throughout and we found that the highlights this year came from the four leading judges who spoke: Lady Justice Ingrid Simler; Lady Justice Geraldine Andrews, Mrs Justice Maura McGowan and HHJ Francis Sheridan (robed!)

The next session on “ethical dilemmas in expert evidence” was chaired by James Hines KC with superb commentary from Lady Justice Andrews, Christopher Coltart KC, Mrs Justice McGowan and HHJ Francis Sheridan. The judicial expertise on display here covered work from the Commercial Bar/QBD PI cases by Geraldine Andrews who stressed the point that “the adversarial system depends on the independence of experts” Then to the world of crime, and Judge Francis Sheridan fully robed in his Aylesbury court which was dramatic. Francis taught me at Bar School - he hasn’t changed a bit with his excellent advice and observations so do catch up on all the speeches from the EWI website!

“You Can Always Spot a Hired Gun”

Lady Justice Simler: The Keynote Speech

Lady Justice Simler, in a recorded speech from the Court of Appeal, gave an absorbing keynote speech discussing what makes an excellent Expert Witness and how experts can increase their credibility in the eyes of the court. “There is strong public interest in the work performed by experts”, she said. “The justice system depends on expert evidence being the highest quality it can be”

Simler observed that “there are difficulties securing experts across the country in a wide range of specialisms”, with “remuneration and rates of pay” being an important factor. “But”, she said, “another is fear of criticism from the courts, from counsel during cross examination, and criticism from those that they assess”. Valid observations which we know would be felt by experts listening to her speech.

The EWI chair, Sir Martin Spencer, has mentioned the new Certified Expert Membership level for the Institute in his welcome to the conference. He explained that “certification offers Instructing Parties a unique method for identifying experts whose knowledge, skills and practice has been validated by a Professional Body”. He concluded that the new certification offers assurance that the instruction of a Certified Expert provides Instructing Parties “with an expert who understands their role and can ultimately deliver”. Very true and we thought both Martin’s welcome and Dame Ingrid’s speech gave us all an increase in confidence, and a greater awareness of the professions from which experts are drawn. Plus, Ingrid’s concluding plea that “in turn, I hope it will attract more women and those from different and diverse backgrounds”, and we all hope that is the case.

An old friend of EWI, Mrs Justice Maura McGowan, also gave us some detailed advice on “good” and “bad” experts- those experts who are not experts, making things up as they go along, so beware. And she mentioned some new books – “primers” from the Royal Society which she displayed on screen so do check out their website for details for your own practice.

There is always so much going on at the EWI Conference that we can only offer a snapshot of proceedings but do follow up the recordings on the EWI website for any particular session of interest. We were most fortunate with the lead sponsorship from DAC Consulting Services, who offer forensic engineering and expert witness services, plus the expertise of the other sponsors: Bond Solon and Jane James & Associates - our thanks to them for their support.

It feels like the online conferences are now here to stay. They do work. We were very fortunate this year to have such a high powered judicial and legal line-up which allowed for contributions from those in busy practices. Although some miss direct face-to-face contact, virtual sessions are here to stay as a consequence of covid. Thank you to everybody who participated as we realise that our system of justice depends on expert evidence.

An appreciation by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator.

Northamptonshire Law Society

LSSA white paper on continuing investment helps legal software bring the maximum benefits to law firms

When law firms commit to a long-term investment in legal technology, they must regularly consider and review their infrastructure, physical and virtual assets and continued support and deployment. The LSSA white paper helps law firms understand how they can best mitigate risk, exploit business opportunities and ensure a return on their expenditure.

It focuses on six key areas:

Common pitfalls after purchase

What to look out for when purchasing software

An asset register for software and hardware

A programme for regular training

Risk and security

Deployment

LSSA CEO Kevin Horlock comments: “Many law firms have been slow or reluctant to invest in technology which can reduce their costs, improve their efficiency and enhance the experience for their clients. Today’s clients want fast, responsive and attentive service - all at a lower price. Client loyalty is fragile and law firms which do not - or cannot - deliver speedy, high quality and costeffective services to their clients will swiftly see their clients and their money move elsewhere. For that reason, a strategy to invest in legal technology is vital for all law firms.”

In addition, as part of the LSSA’s ongoing collaboration with For Media Group, the Association has a pre-recorded, online seminar to accompany this white paper, which provides more detailed information and guidance. The online seminar is hosted by Tim Smith, former LSSA Chair, who is in discussion with expert panel members Elwyn Morgan of Timeslice Ltd, Angela Hesketh of Smoove and Bishu Solomon Girma of Access Legal. The panel discusses the six key areas to consider and actions to take to ensure the maximum ROI when investing in legal technology.

To download the white paper please use the following link: https:// www.lssa.co.uk/ongoing-investment-lssa-whitepaper/.

The webinar is available here: https://www.formediagroup.co.uk/ forlegal/maximising-roi-when-investing-in-legal-software

About the Legal Software Suppliers Association (LSSA)

The LSSA is the UK industry body for legal systems developers and vendors. Representing most of the leading UK suppliers, the LSSA sets and maintains professional standards within the legal software industry and manages areas of mutual interest between lawyers and software providers. The LSSA is committed to developing clear channels of communication, so that law

firms can gain the maximum benefit from their selected software solutions.

The LSSA provides a highly representative and unified voice for the legal software industry and is best placed to provide a strong focus in establishing standards and cooperation between suppliers, professional bodies and government organisations. The Association has set up and actively contributes to a number of different working parties and forums, representing and lobbying on behalf of its members with government bodies such as HM Land Registry, HMRC, LAA and other organisations within the legal market such as the Law Society.

For more information, please visit: https://www.lssa.co.uk/

The Legal Software Suppliers Association (LSSA) has published a white paper for law firms which sets out what they should consider in order to gain the maximum benefits from their continuing investment in legal technology.

REVIEWS

Great Legal Writing Lessons from Literature

by Max Barrett

ISBN 978 1 78742 949 9 | Globe Law and Business Ltd | www.globelawandbusiness.com

As words are the basic tools of advocacy, all lawyers should read this book

An appreciation by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister” and Mediator

Does law link with literature? Yes, of course it does. Both are about words: words and their intrinsic power to influence when effectively used, bearing in mind that while good writing does influence -- great writing, for good or ill, exerts power.

As the author of this book, Max Barrett -- who is also a judge -- states very simply that ‘the law consists of words’ -- hence the necessity of cultivating a clear, lucid and “polished” writing style, especially when you consider the vast amounts of paperwork and documentation most cases require.

So if you’re a lawyer who writes well, get this book -- a recent publication from Globe Law and Business. It will inspire you to write even better, superbly well in fact. Or, if you’re already a superb writer (lucky you) you will be pleased to be reminded that good writing emanates from honesty and clarity of thought.

As you can immediately detect from the title, the focus of the book is less on “good” legal writing, than on “great” legal writing. And note the sub-title: ‘Lessons from Literature.’ As the publishers point out, the book provides lessons, mainly statements of opinion on the art of brilliant expression from a noteworthy selection of undeniably brilliant writers of the past whose work continues to inspire. And even if you may disagree in part with what some of them say, you cannot fault the way they say it, or indeed the quality of the advice they offer.

E. M. Foster, for example, offers advice on ‘writing and voice’, focusing on tone... vocabulary... rhythm and cadence... and much, much more. Other writers featured in this volume include D.H. Lawrence (yes, him), Guy de Maupassant, Thomas de Quincy, Thomas Hardy, Henry James, Robert Louis Stevenson, Anthony Trollope, William Hazlitt, Virginia Woolf and more besides. And if at this point you are asking why only one female author (??), your query will no doubt inspire another book. Certainly, this book may well answer -- or inspire further debate -on the concern expressed by judges, for example, on the evidently deteriorating quality of written submissions by all too many lawyers of late -- barristers as well as solicitors -- and judges too, as we are reminded that ‘the “triple crown” of judgment writing is ‘clarity, simplicity and brevity.’ Note too, the appendix on ‘Writing for the young and vulnerable.’

In all, the book presents readers, primarily lawyers, with a distinguished work of scholarship on a subject that is all too rarely discussed. The encouraging prospect is that this book will in general, raise levels of awareness, particularly in the legal profession, that words -- the basic tools of advocacy -- should be used wisely and well.

The date of publication of this new hardback edition from Globe Law is cited as 16th February 2023.

Private International Law In English Courts

Second Edition

by Professor Adrian Briggs KC

ISBN 978 0 19288 814 5 | Oxford University Press: Oxford Private International Law Series | www.oup.co.uk

How does private international law work in English courts post-Brexit?

Read

An appreciation by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister” and Mediator

The publication of this new edition of ‘Private International Law in English Courts’ from Oxford University Press, part of the Oxford Private International Law Series -- is nothing if not historic when you consider that the first edition was published eight years ago in 2014.

Since then, the world in general and the United Kingdom in particular have had to tackle one upheaval after another, starting with the Brexit vote in 2016, the impact of which was exacerbated by the dismaying and disruptive effects of the Covid 19 pandemic.

But, as is pointed out in this latest edition of this important and authoritative work of reference, it is Brexit, which (as expressed in the Series Editors Preface) confronts us with the necessary task of ‘re-surveying and re-building the landscape of the conflict of laws in England and Wales.’

In addition, that the book’s erudite author Professor Adrian Briggs KC has undertaken ‘the role of chief surveyor painstakingly charting the shoreline to see what the receding tide of European legislation has left behind and seeking to build around it with the materials... offered by our own constitutional order: shattered statutes, complex rules of procedure and an ever-growing mass of cases.’ And he does it very well indeed.

With these bewildering realities in mind, how does one cope? Or, in the words of Professor Briggs, ‘how... does it feel to have taken back control?’ Obviously, there is no simple answer out there to this conspicuously complex -- and by now, oft repeated -- question. Indeed -- and obviously,

there is a multiplicity of answers to a multiplicity of questions linked to the complexities of this issue.

What this book does is to provide practitioners with the insights, the guidance and the techniques needed to function successfully within the new landscape of international law. This new edition, says the author, aims ‘to show and explain how private international law works in English courts, using the jurisprudence to help to paint, rather than to overwhelm, the picture.’

Certainly, this distinguished text delivers plain speaking, thought provoking and practical content. Copiously footnoted throughout, it features logical aids to navigation, including a detailed table of contents, (plus a summary of contents) and a fourteen-page index. Its twelve chapters cover every pertinent aspect of what an intrinsically complex area of law is, including: tools and techniques... jurisdiction... ancillary measures... foreign judgments... contractual obligations... non-contractual obligations... property... corporations... adults... children... and finally, arbitration.

Also note the more than forty pages of tables of cases and of legislation. Practitioners in international law everywhere will no doubt regard this book as an essential purchase.

The date of publication of this second hardback edition is cited as 25th September 2022. The law is stated as at 22nd September 2022 (the author’s 66th birthday!)

Parentage via sperm donation and the matter of “consent”

The donation of sperm or eggs is a very laudable social service and demand in the UK is increasing1, albeit, sperm is in short supply for artificial insemination (AI). The service can be carried out by one of the many reputable licenced clinics recommended by the HFEA which regulates their activities and gives a great deal of clarity about consent and responsibilities towards children created from the donor sperm2.

There are, however, shocking and indeed harrowing stories about sperm donors who have fathered multiple children and we would like to explore some of the issues. The cause of disquiet is the very real possibility of inbreeding (a genetic abnormality arising from inadvertent half-sibling reproduction as the result of a common father – the genetic term is consanguinity), incest and psycho-social/emotional issues in donor children. Consent, if it has been given, is often far from informed.

A recent case involves a musician in the Netherlands who has been accused of fathering more than 550 children from his “donations” which were offered via social media and to a significant number of clinics, of which 11 were in the Netherlands. The court in The Hague has recently found against him in a case brought by one of the mothers and the charity DonorKind.eu, on the basis that he lied to the clinic/mothers about his history and activities; had they known, they would not have chosen him as a donor. This judgement of preliminary relief will deter him from making further donations3. These mothers are now faced with an extraordinary extended network of half-siblings.

There have been many other circumstances of sperm donors fathering multiple offspring, both consensual4 and adversarial5. In the latter instance there have been multiple cases of doctor-donor conceived children in the US, with fertility fraud being documented on websites such as donordeceived.org and even Netflix6

Many people feel it is important to know their origins, as it gives them both identity and helps them make sense of their being. The UK took a giant step in this direction on 1st April 2005 when individuals became able to identify their sperm donor, upon reaching the age of 18 (from this year, 2023). This was a result of studies which acknowledged the need for individuals to know the identity of their biological parents and which followed up the International Convention on the Rights of the Child, adopted by the UN General assembly in 1990. This shift from anonymous to open identity sperm donors has been replicated in other countries, nearly always with limits placed on the number of times a particular donor sperm can be used. In the UK, this is 10. In the Netherlands, this is 257. For the genuine sperm donor and child relationship open identity is seen as a very positive circumstance. Donors are on a registry that can be accessed by the child via the HFEA, if wanted, and many people find surety in knowing their biological as well as their social father. More difficulty arises in cases of fertility fraud, where a quest to find the biological parent has often resulted in the discovery of many half-siblings. The psychological and social effects on the individual are rarely taken into proper consideration and indeed, as these situations evolve, are probably not yet fully understood. There is in fact no evidence for the choice of this number relating to how many times a donor can be used and the number chosen by each country is arbitrary8. The primary concern seems to be the possibility of genetic disorder, which though significant is in fact less than that of a first cousin mating (taboo in many countries but not the UK or indeed to Charles Darwin himself) but in our view, more concerning is the psycho-social impact of such a large number of siblings on the individual, which after all, is unprecedented in any human society.

DNA testing technology using broad brush ancestry services (Direct to Consumer) has enabled half- siblings to discover not only anonymous biological fathers, but possible other

Northamptonshire Law Society

half-siblings – the use of a precision DNA test to determine the true family relationship (always recommended) enables this to be confirmed with a reliable statistical probability9. Data indicates that from use of these tests, the discovery of non-parent expected (NPE) events (that one or more parent is not biological) ranges from 4-12 %. Whilst there are of course other explanations, one of these is that social parents have not discussed with the child the circumstances of their conception. The evidence suggests10 that donor conceived children often have difficulty (often seeking help) coming to terms with; a) the nature of their conception, b) the efforts to find a biological parent and c) their reaction upon hearing about it. This is particularly acute if they discover that the father has sired many children.

Regarding consent, then the DNA testing technology that is now available for tracing biological relatives was not available when many of the donor conceived children were actually conceived. As we know it now, informed consent would have been impossible at that time and many of the issues since raised are very new to science, society and law. Genetic technology is changing fast and information is coming to light so quickly, that it is impossible to give informed consent in the present (informed consent has only even been relevant in the precise time window it is given, and can only be based on the state of knowledge at that precise time). By sequencing individual human genomes, we can reveal information relating to genetic disease that was unknown; sometimes these are late onset disorders and/or could not be known or predicted at the time of conception. Other times, we (or more specifically the direct-to-consumer client) will have the genetic information and either not know or be in a position to know how it relates to

disease or the prediction of characteristics. The fact is of course, that we are all genetically pre-disposed to something, as much as we can be genetically protected from the very same things.

Donor conception is a delight to many – but the emergence of fertility fraud has raised several important questions, for which there are simply not enough informed counsellors. Maybe, given the vast data sources, artificial intelligence (AI), has a role to play in AI after all.

1 https://www.hfea.gov.uk/about-us/publications/research-and-data/ trends-in-egg-sperm-and-embryo-donation-2020/

2 https://www.hfea.gov.uk/choose-a-clinic/consent-to-treatment-andstorage/

3 https://nltimes.nl/2023/04/28/court-orders-sperm-donor-550-kids-stop

4 https://www.theguardian.com/science/2018/nov/24/sperm-donorman-who-fathered-200-children

5 https://www.nbcbayarea.com/investigations/doctor-sperm-donorcases-fertility/3148093/

6 https://www.netflix.com/gb/title/81227735; https://donordeceived.org/

7 https://doi.org/10.1016/j.fertnstert.2007.06.020

8 https://doi:10.1093/humrep/deq038

9 https://dadchecksilver.com/sibling-tests/

10 https://bioethics.hms.harvard.edu/journal/donor-technology

And Finally...

Hello! I hope that this message finds you all fit and well.

Since I last wrote, we have enjoyed a number of extra bank holidays, witnessed and celebrated the crowning of King Charles, and now before you know it, the nights are drawing in and we are heading towards the latter part of summer!

Here at NLS, I have been delighted to have hosted several training events, both by Marsh, and Landmark. We have welcomed a new speaker Stephen Desmond sponsored by Xpress Legal and are looking to host further training events in the latter part of the year – details will be hitting your inbox imminently.

With thanks to Dominic Hopkins, Joe Hobbins and the team at Hewitsons HCR, staff and volunteers from UoN, and Rachel McGrath from Northampton Community Foundation we had a successful Legal walk, even the torrential rain and thunder didn’t put the walkers off. In conjunction with ATJF we raised much needed revenue to support local charities. We were welcomed at the offices of Hewitsons by High Court Judge, Mr Justice Morris, and The High Sheriff, Mr Milan Shah.

Continuing along the same theme, I am delighted to advise that the Pro Bono clinic which is being formed in conjunction with the CA, Law Works, NCF, UoN and ourselves will be looking to re – open its clinic from September onwards. We have completed a pilot recently and we would very much appreciate if any of our readers would be interested in volunteering.

The subject matters that the CAB are reporting are most popular, are Family and Property Law- in the last week alone on average over 6 cases were turned away each day.

If this is something that would interest you, or anyone else within your firm, - please do get them to contact me and I will gladly have a chat about what is involved (07543 662572)

I very much look forward to meeting you at one of our upcoming events, and if you would like to add anything to our “members page”, then please drop me a line – sec. nls@outlook.com

Best wishes

Carolyn Coles Society Manager