Norfolk Law 23

Norfolk Law Magazine of the Norfolk & Norwich Law Society - www.nnls.org - Spring 2015

Fore!

Inside

Golf Pro Alison Sheard managed to get even the most basic of beginners on their way to becoming pro at Norfolk Premier Golf. Pictures page 8.

Countdown 2 - Page 6 New CPD Events - Page 11 Magna Carta - Page 14 Annual Dinner - Page 15

Norfolk Law - Contents - 3

This issue...

Welcome to the first issue of Norfolk Law 2015 which includes a look back to the hugely successful ‘Norfolk Lawyers do Countdown’ event, a review of the New Year’s Golf session and reports on the recent CPD training sessions. You can find out what’s in store for the next few months, including how to get involved with the NNLS Treasure Hunt and an introduction to this year’s Annual Dinner...

Membership 4 Committee President’s Report 5 Christopher Cubitt Event 6 8 8 10

Reviews Norfolk Lawyers do Countdown!

Driving Hard CPD Reviews - Taxation of Trusts CPD Reviews - Legal Indemnities

Event 11 11 12 12 14 15

Previews Treasure Hunt CPD Stop Press Use of DNA in Legal Practice Growing your firm with social media Magna Carta Commemorative Events Annual Dinner 2015

Articles 16 A Sense of Self 18 Perception and Reality in Home care 20 Energy and Infrastructure 22 Law Society calls for statutory protection

for legal professional privilege 24 Is the rush to Incorporate Legal Practices over?

27 The Paperless Office 28 Maximising Auctioneer’s Potential 30 Why a Valuation Never Gives the ‘Right’ Answer

Disclaimer

Norfolk Law is published for the Norfolk & Norwich Law Society by east Park Communications. All rights reserved. Reproduction without consent is prohibited. Any comments or views expressed in any article are not necessarily those of the Society or Publisher. All times, prices and event details were correct at time of publication.

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Managing Editor Claire Clarke

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may be reproduced without prior written

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Norfolk Law - President’s Report - 5

President’s Report 2015 has started with a flurry of activity.

In October the SRA issued a consultation as to whether it should withdraw from the Financial Conduct Authority’s Designated Professional Body regime for the purposes of consumer credit activities.

The overwhelming response of the National and Regional Law Societies was that of great concern, while the recent government proposal to increase court fees has also been widely reported in the media. You can find copies of recent correspondence and more detail on both these subjects on the website - we would be delighted to have your thoughts.

I have been working with the Sheriff of Norwich William Armstrong OBE, Norwich City Council and Norfolk Community Law Service to prepare a series of lectures and debates in celebration of the 800th anniversary of the sealing of the Magna Carta. Full details on page14.

We have a great set of training events coming up. We were at maximum numbers for “The New Litigation Landscape” in February and recent events have been similarly popular. With the current memberships among the highest the Society has had it is important to book early. Keep in touch with what is going on via our website and from the events listings in email footers from our Administrator Claire Clarke. (If you would like to host a seminar or have any suggestions you would like to share, let us know.) January’s social at Norfolk Premier Golf was a great success (unlike my efforts on the range). 20 golfing hopefuls took tips from 9 times winner of the South African Open, Alison Sheard. Arrangements are well

underway for the 2015 Annual Dinner at Blackfriars Hall, on Thursday 9th July, including for the first time the Norfolk & Norwich Law Society, Junior Lawyers of the Year Awards sponsored by Winsor Bishop – see page 15 for all the details.

A President’s life…..One of the great opportunities open to the Society’s President is to meet the leaders of our profession. It has been inspiring to meet and a pleasure to work with people with such enthusiasm for the profession and such a sense of public duty.

The recent diary reads: 25 February

Community Law Service ‘Volunteer’s Reception’ Guildhall, Sheriff of Norwich

1 March

Justice Service, at King’s Lynn Minster. High Sheriff of Norfolk, Lady Dannatt

3 March

Magna Carta lecture, Stephen Bowen, British Institute of Human Rights, City Hall

13 March

Peterborough and District Law Society annual dinner

16 March

Magna Carta Lecture, Professor Vincent, History of Magna Carta and Norfolk, City Hall

I am glad 2015 did not start with a diet.

Christopher Cubitt, President NNLS

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Norfolk Lawyers do...

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...Countdown!

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Norfolk Law - Event Preview - 11

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16 - Norfolk Law - Articles

A Sense of Self Both the Commons and the House of Lords have recently voted for the UK to be the first to accept the creation of a baby using DNA originating from three different people. This IVF (in vitro fertilization) technique is known as mitochondrial replacement therapy and concerns the prevention of certain genetic diseases, which could potentially assist up to 2,500 women of reproductive age in the UK. The popular press, perhaps unfortunately, coined the phrase “three parent babies”, which immediately upped the ante in the debate and brought forth intense discussion involving church and pro-life groups. In particular this has concerned the ethics of this procedure, set against long held fears of designer babies and eugenics. Safety concerns have also surfaced and there have been warnings that any children of this technique could be born sterile or be at risk of cancer and premature aging. There has also been international condemnation where authors have commented that, because these children would have heritable genetic changes, that there are significant risks to the health of future generations.

Mitochondria are present to generate energy for the cell. They come from the mother and have their own genetic material, which sits alongside the germ line DNA of the “conventional” mother and father. The thought that this DNA might constitute parentage (i.e. the third parent) brings forth some interesting legal points. Parenthood has both a genetic and social meaning, although the former is regarded as the fundamental tie between parent and child. This contribution must be both direct and

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immediate. To clarify, grandparents provide a quarter of a child’s DNA but are not accorded the status of “half“ genetic parents. The recent proliferation of assisted reproductive technologies has of course complicated matters and given that the donor of the mitochondria is making a direct and immediate contribution of generic material, then in my view, we have a new biological parent. In preparation of this article, I have found it difficult to make the counter argument. Pertinent to this of course, is now the fact that the new (third) parent is a second female parent.

Avoiding this issue by trying to claim mitochondrial donation is merely a tissue donation is not adequate.

Others may say that the contribution of the third parent to the child’s DNA is low, less than 0.1%, but in the world of genetics, where we are examining diseasecausing changes which occur at a frequency of one in three thousand million (the size to the human genome), this is significant. We simply do not know enough to say that the mitochondrial DNA will have no material effect on the characteristics of the child.

In the UK, the mother is the person who carried the child and gave birth, the father is the man who provided the sperm. So what could be the status of the donor of the mitochondria? Is it that they have the same status as a donor of an egg or sperm for IVF or perhaps the status of those who donate blood, organs or bone marrow? Egg or sperm donation is in effect normal reproduction from a genetic point of view but the donation of mitochondrial DNA does not fall into that category; it may create a set of unique parental rights. Equally, mitochondrial donation cannot be considered simply as a tissue donation; there is an impact on future generations as the DNA will be passed on.

Since the courts quite rightly take the view that a child should “know” its biological parents, the second female parent may well wish to take an interest in the child (via appropriate application of her Parental Responsibility rights) or they may wish to give up Parental Rights. Their view may change over time; how the donor feels at the time of donation could be very different to how she feels once the child is born. Current provisions under the Human Fertilisation and Embryology Act 2008 do not cover this situation adequately. For example, a Parental Order as it relates to surrogacy (to gain or relinquish parental rights) can only be granted after a child has been born (and then for a fixed period only), not at the point of conception.

Perhaps the mitochondrial donor will be able to gain Parental Responsibility via a court order or a formal ‘parental responsibility agreement’ with the child’s birth mother (let us presume that she is the egg donor as well…it gets even more complicated if she is not!).

If the premise of the second female parent is accepted, which I believe it should be, then we are in new legal territory as it relates to assisted reproduction and it is likely that several legislative amendments will be required to provide for mitochondrial donation.

Dr Neil Sullivan is General Manager of Complement Genomics Ltd, which provides the dadcheckgold service for parentage testing.

He is a PhD level molecular biologist with a LLM in commercial law and has a particular interest in consent.

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Perception and Reality in Home Care Should a person or their family choose to employ care privately, again can it be assumed that care purchased will be good, non -abusive and appropriate? Is it assumed that in all private, independent care arrangements that employment law, tax liabilities, appropriate training, insurance responsibilities, etc. are in order?

Angela Gifford

A loved one needs care and wants that care to be provided in their home. It may be for a few hours per week or the need may be for care twenty four hours a day. The person, their family or social services decide how that care will be provided.

It is likely that up to this point, before professional care has to be purchased, that family and friends have been providing the care. Providing the care, in the majority of cases, without any training or ongoing supervision.

The Government recognises that such informal carers, currently numbering 5.8 million are the mainstay of the UK care system. Can we assume that Government assumes all informal care provided is good, non-abusive and appropriate?

Should home care be provided by a care agency they will be inspected by the Care Quality Commission (CQC) which is the independent regulator of all health and social care services in England*.

In social care, many home care agencies providing care, especially live-in care providers use the legally acceptable method of introducing, self- employed care workers. This provides a financially efficient method of purchasing care and care workers have flexibility of when they work and whom they work for. However CQC does not inspect this method of care provision to the same extent that it inspects care agencies that employ their home care workers. Again, can we assume that Government assumes all self -employed care packages are good, non -abusive and appropriate?

Where home care workers are employed by a care organisation it is a belief held by many people that CQC visits the homes of care agency clients to ask face to face how they feel about the care that is being provided to them. It is a belief that care workers are observed working. This belief cannot be upheld for the majority of care packages. Views of those being cared for are normally sought by telephone and can be made to people whose dependency levels may be based around cognitive decline. Care workers may be spoken to on the telephone, a poor substitute for being watched or the home in which they work being seen.

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The recipients of care, both young and old, are the most important factor in any care regime. In the current care system only part of it is regulated and this often at arm’s length. Is there a system that can be devised to protect the unknown number of older and disabled people who are in receipt of care in their own home yet are currently left unprotected? *CQC inspects: care homes, hospitals, services in the home, doctors/GPs, dentists, clinics, community services, mental health services.

20 - Norfolk Law - Articles

Energy and Infrastructure Let nothing be overlooked The Argyll Energy and Infrastructure search The Argyll Energy and Infrastructure search has been a popular addition to the Geodesys product range since we introduced it last year. As potential energy and infrastructure risks are flagged by the Search Alert tool on the Geodesys website, our clients are given clear guidance on whether they ought to be ordering the search as part of their due diligence.

Risks covered in the Energy and Infrastructure search The categories of risk covered are: • Oil and Gas • Wind Energy • Solar Energy • Renewable Power Plants (this is a new additional risk) • High Speed 2 (urban and rural areas) • Cross Rail • Yorkshire and Humber CCS Pipeline New improved content To keep up with the ever-changing world of new energy and infrastructure projects, a new version of the report is now available.

The updated search now comes with the following enhancements: • Brand new data on the location of Renewable Energy Plants including Anaerobic Digestion, Biomass, Co-Firing, Heat Pumps, Hot Dry Rocks, Landfill Gas, Muncipal Solid Waste Combustion and Sewage Sludge Digestion.

• Clearer explanation of technical content making it easier for you and the homebuyer (or commercial purchaser) to get the full picture. The nature of the risk, the potential impact and what can be done about it are all covered in plain English.

• The inclusion of planning application data for wind and solar farms. This means you can inform your clients if there’s a an application approved for a wind or solar farm near to their proposed purchase. Previously the search has only identified existing wind and solar sites and those under construction.

• A number of additional new datasets including HS2 depots and stations, crossrail safeguarding limits, oil and gas exploration blocks and drilling locations, Yorkshire and Humber CCS pipeline, • An additional next steps/recommendations section at the beginning of the report.

More on wind and solar farms There are a number of reasons why the inclusion of planning application data for wind and solar farms is particularly important for you and your clients.

1. The property purchaser may not be aware of a wind or solar farm planned in the vicinity.

2. A Local Authority search will only give planning information on the property itself.

3. Wind farms in close proximity can reduce property value by up to 12% 4. Both wind and solar farms may affect the use and enjoyment for the purchaser 5. For the lender it may mean that it affects the security on their loan 6. For the lender and the purchaser it may affect property value

The Argyll Energy and Infrastructure search gives your clients the detail to make an informed choice!

For more information on the Argyll Energy and Infrastructure search or any of our other products, please contact Matt Bowles, Client Account Executive on 07764986563 or visit www.geodesys.com www.nnls.org

22 - Norfolk Law - Articles

Law Society calls for statutory protection for legal professional privilege have an extraordinarily chilling effect. Suspecting that you cannot speak to your lawyer candidly or advise your client confidentially is corrosive of the entire legal process.

The right to communicate with your lawyer without fear of your computer being bugged or your messages intercepted by the security and intelligence services is basic to the functioning of the justice system and the rule of law.

Responding to the government’s consultation on new property interference and interception of communications codes of practice, Law Society president Andrew Caplen said: ‘The potential for surveillance of lawyer-client communications can

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‘The Law Society has long called for review and reform of the legislative framework for surveillance in the UK and for statutory guarantees recognising the importance of client-lawyer confidentiality. Now even the Parliamentary Intelligence and Security Committee has called for reform and we agree. Legal professional privilege is a fundamental common law right that underpins basic human rights including the right to a fair trial. The next government should move quickly to protect it.’

- See more at: https://www.lawsociety.org.uk/news/press-releases/ law-society-calls-for-statutory-protection-for-legal-professionalprivilege/#sthash.Pxe3hJiY.dpuf

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Is The Rush To Incorporate Legal Practices Over?

On 3 December 2014 Chancellor George Osborne delivered his Autumn Statement to Parliament.

As part of his Paul Briddon agenda to stop people ‘aggressively trying to avoid tax’ he announced an end to ‘individuals and partnerships gaining an unfair tax advantage’ by selling goodwill to a company on incorporation of their businesses. Many small to medium sized legal practices have already taken advantage of this arrangement by selling goodwill to their own company in consideration for debt and subsequently drawing future profits from the company tax free. Furthermore, it was often possible to claim a deduction against corporation tax profits for the annual amortisation of goodwill in the company’s accounts.

claiming the corporation tax deduction. More importantly any capital gain arising on the sale of goodwill will be subject to capital gains tax at the full rate rather than the more favourable Entrepreneur’s rate of 10%. At a stroke one of the major attractions of incorporating a practice into a limited company structure has been removed. So is this the end of the ‘rush to incorporate’? Probably not.

The new rules remove the possibility of

There are potential drawbacks. For example

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We have always taken the view that incorporating the practice into a limited company should stack up without the one off tax benefit of recognising goodwill which has always been the icing on the cake. So is the cake still sweet enough without the icing? The answer is probably yes. In addition to offering the commercial protection of incorporation (an LLP offers almost similar protection) there are still ongoing tax savings to be had. For example, a three partner practice earning profits of £120,000 could potentially still save £7,000 per partner per annum operating through a limited company structure.

the appointment and retirement of director shareholders can be more cumbersome than in a partnership or LLP, hence most limited company practices are often those with a relatively low number of shareholders. It is also important to ensure that the share capital is appropriately structured for tax and commercial reasons. Some banks are reluctant to provide borrowing facilities to a newly formed company with a nominal amount of share capital. Each case is different and it is important that proper advice is taken from those with experience of dealing with the incorporation of professional practices.

In the meantime, there is no reason why the recent trend of incorporating small to medium sized practices should not continue.

Disclaimer: Please note that this article is provided for your information only. Whilst every effort has been made to ensure its accuracy, information contained herein may not be comprehensive and you should not act upon it without seeking professional advice.

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Norfolk Law - Articles - 27

The Paperless Office: 5 Practical Tips for a 21st Century law firm then, seriously … get a new system! The conundrum is what to do with incoming documents. From observation of clients, these are triaged, literally, and treated as follows: • Letters and other documents where the existence of the original is unimportant – scan to the matter and destroy the original.

• Documents that are important but where you do not need to keep the original for any reason – scan to the matter and immediately mail the original back to the person who sent it to you.

• Documents where the original is important and you need to keep it permanently – scan to a Safe Custody record and store the documents in an organised Safe Custody facility.

The “Paperless Office” has been talked about for years, but the reality still remains elusive to most law firms, says Richard Hugo-Hamman, Chief Executive Officer at LEAP Legal Software. Is the paperless office a realistic goal for law firms?

Some lawyers, you’d be surprised how many, have a system whereby every email they send and receive is printed out and placed carefully in a manila folder. What a waste of time and money. How risky. How unnecessary.

I don’t run a law firm but I have visited many over the years and I can say yes, there are paperless law firms operating today. I have seen them and it really does work.

Changing from paper to paperless takes courage and the acceptance that properly stored electronic data is far more secure, safe and accessible than we ever thought possible. Our work habits have also changed dramatically so we now need to ensure we have the right technology. The smartphone (and tablet) is having as profound an impact on how we work as the desktop PC did a generation ago. It is this mobile element that is driving the paperless revolution.

A good scanning system is critical to enable this to happen and you should be able to scan conveniently to a matter directly from a flatbed scanner on your desk or nearby.

2. Outgoing documents Every document in every form should have its original stored against the matter. If you do this you are almost halfway to achieving your objectives. With a good system, whenever you create a piece of correspondence or other document, the new document will automatically be associated with the matter you are working on. If not, you should be able to easily add it to the matter. If you produce documents and then have to scan them in order to add them to your document management system, well … it’s time for an upgrade.

3. Precedent letters and forms and complex documents The old tendency to keep ‘a good one’ in the bottom drawer is probably embedded in our human nature as lawyers, but the problem is no-one else will know it’s there.

The way forward is by using a system that integrates your matter, document and accounting requirements in a single application. And to ensure that it is easy to use wherever you are, a cloud based system is best.

Whether a simple letter, a complex family court form or a deed of trust, you should have these easily available, when needed. A good system will provide you with a stock of “off the shelf” forms and precedents, as well as a way to easily and economically incorporate your own precedents into the system. If there is only one place to store the document, then there is only one way to find it.

Going paperless in 5 steps: 1. Incoming documents Today most correspondence arrives electronically. It should be easy for you to associate every incoming document with the correct matter. If you can’t do this

4. Invoices and reports If you’re relying on your bookkeeper to produce your bills, then chances are you’re behind the curve. With a good system you can easily find, view, create and email an invoice, all without a bookkeeper or piece of paper in sight.

If you can, as you should be able to, create any report at any time for any time period, then there is no need to keep reports in paper form at all.

Some firms even keep copies of receipts ‘for the file’ unnecessarily. Your system should make it easy for you to provide a duplicate of a receipt or any other document.

5. Time Records and Contemporaneous Notes Making your attendance records in a paper file or even on a specially created paper ‘timesheet’ is inefficient, often inaccurate, and the cost of these errors can be enormous. If you just record all attendances on your smartphone or desktop as and when they occur, accuracy goes through the roof and so will your billings. Whether you use yellow ‘Post It’ notes optimistically attached to a letter in the file, or even have specially printed paper file notes, neither of these can match the accuracy and safety of an electronic note made directly into a matter record at the time. Time stamped, they are your ultimate record of your work.

By storing all documents within a case management system, law firms now have the ability to catalogue and index the information contained within the system easily. This provides the system’s users with rapid access to specific documents and any related documents.

Paperless reporting can offer many benefits to a practice, including reduced storage requirements and immediate comparison of past accounting/sales periods. Secure and encrypted off-site storage of data assists with business continuity and disaster recovery planning, and remote access for the accountant reduces audit costs significantly.

Electronic working means that a lawyer can easily work on a file from home in the evening or at the weekend, without having to take a paper file home with no risk of leaving a folder on the train or having it stolen from a car.

As technology advances and applications become faster and more efficient, it is no wonder that more and more firms are moving towards the paperless office. Will you?

LEAP is a cloud legal software solution for small law firms wishing to become more efficient, more flexible and make more money! It allows everyone in a small law firm to work naturally using a single integrated system that enables you to do more work with the same number of people. www.leap.co.uk 08456832517 info@leap.co.uk

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IT’S ALL ABOUT MAXIMISING POTENTIAL

• THE PRESS RELEASE A rare painting of Western Australia’s first settlement farm, Strawberry Hill at King George Sound in Albany , has been discovered in a 19th century British sketch book by Rowley’s the Cambridgeshire auctioneers. The picture which goes on view on to the public on 20 July 2010 has already attracted the interest of Australian collectors. The original farm at Strawberry

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Hill still exists; now called ‘Old Farm’ it belongs to the National Trust of Australia.

The farm was first established in 1827 as part of a military settlement, which managed incoming convicts; it went on to become the Government residence of Captain Sir Richard Spencer and was visited by Charles Darwin and Captain Fitzroy in 1836, Darwin describing the site in his journal as ‘a small and neat farm in what is the only cultivated ground in the district.’

an early photograph, inscribed Strawberry Hill, along with two other black and white Australian photographs and this wonderful mid 19th century watercolour showing the farm at Strawberry Hill from a very different perspective…

Rowley’s senior valuer and auctioneer comments ‘We discovered this extraordinary picture in a 19th century sketch book, which belonged to the Trimmer family. This type of album was assembled by many families at this time, in an age when reading, painting and drawing were the main avenues of entertainment, and overseas travel was relatively rare and only undertaken by the most adventurous of people. When we first looked through this sketch book we found largely what we expected, lots of hand coloured prints and watercolours of European and English views, then suddenly we spotted

The sketch book was purchased by The National Trust of Australia who paid £34,000 far exceeding the original auction estimate.

• THE REACTION Articles appeared in every major newspaper in Australia.

• THE RESULT

Through targeted marketing to an international audience Rowley’s regularly achieve outstanding results, breaking auction records for various artists and selling items which other London and provincial auction rooms have failed to sell.

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Why a valuation never gives the “right” answer As an expert I am often asked to provide a valuation, be it for a matrimonial dispute, a shareholders dispute, a sale, or any one of a myriad of different purposes. I usually oblige, but my answer never satisfies everyone, and that is a good thing – if it did they would have agreed anyway and no needed an expert.

When one party is not happy t is usually because they had a different figure in mind, and that is because they “know” the value.

Part of the problem is because they are approaching the question from a different view point. Take for example the business owner down the golf club. She is likely to have been boasting about how successful she is in business, and going on about how her business is worth £5million. Along comes the divorce and suddenly she is telling the husband that the business is only worth £500,000, just look at the balance sheet.

The real difference is they are different questions. The first figure is what the businesswoman would accept for the business. As far as she is concerned it is her life’s work, her pension and her reason for getting up in the morning all rolled into one. Of course it is valuable to her, and someone wanting to have it will have to pay for that, so the price the business woman would put on it is £million.

The balance sheet is prepared, correctly, on a historical cost basis.

The assets costs probably nearly £2.5 million, but some are 15 years old and so fully written of in the accounts. The property was bought I the property crash of the 80’s and the improvement works done in hose, so has a book cost of £500. On a sale the machinery is actually valuable as it is all integrated and on one site and now difficult to replace due to planning laws. The property is worth a mint because of the position right next to the new junction on the M40 which did not even exist when it was bought. The business also is profitable and any purchaser would be buying that future income stream, so all in all the value I put on it of £4Million is what someone would pay for it.

Clearly there is a difference, and the good expert is as much a translator as a valuer. He or she needs to be able to explain the differences between the three ideas In technical terms value reflects usefulness or desirability of good or service, how much you love it, or what it is “worth to you.” In a business valuation it I the value to a hypothetical third party, so all the personal baggage is striped out. It usually ends up as either the current money equivalent of the income stream expected to flow from the assets, or the sum of the sales price of the individual assets.

The Cost is the amount of money required to purchase something (a good or a service.) Cost is from the purchaser’s viewpoint, so it sometimes has a negative connotation (cost is bad). In accounting terms it is specifically the money paid in the past for an asset. It takes no account for inflation or anything like that, and worse from the assets owners viewpoint does take into account things like depreciation.

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Price is the expected selling price of some form of property. When we talk about worth, we are taking the viewpoint of the owner, and speculating about a possible sale, or what it might cost to replace our property. Price is a long-term perspective. As with value, we think of price as being stable across market price fluctuations, and so as somewhat intrinsic in the thing. We tend to imagine an ideal buyer, one who values the property as least as much as we do. If sale prices refuse to align with our expectation, we may have to adjust our idea of worth, but we can do this without having to change our judgment of value, what it is “worth to me”.

On a final note going back to the original example the valuation I was asked for in this case was for a matrimonial dispute, the problem I had is that none of these ideas were correct, as in reality what the parties needed was the amount of money the owner could raise to fund the separation. I looked at the business, a coal merchant and noticed it had no mortgage, but a hefty loan. It had no long term contracts but was the only business of its type for some distance and had recently diversified into logs which as a growing business with the current desire for woodburners, so using our experience as an accountant I estimated that the banks would be willing to lend possibly as much as £650,000, so that was the answer required Tim Vogel, Chamber of Experts