Issue 30 Winter 2018/19
Full steam ahead with Thursfields! Local News on page 8
ALSO: The last Council meeting at Chancery Lane • The tripwires of 'fairness' to litigants in person • "The Rise of the Solicitors" and much more...
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This edition... Issue 30 Winter 2018/19
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Committee Members and Member Firms
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Return of Probate fees 'Grossly unfair'
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President’s Introduction
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Hallmark Hulme appoints Rebecca Hastings
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New tax expertise for HCR clients
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Council Member Report December 2018
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Strategic support for lenders brings accolade
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Final council meeting at Chancery Lane
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Thursfields wins top title at national Family Law Awards
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The Tripwires of 'fairness' to litigants in person?
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Thursfields recruits country homes conveyancing specialist
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"The Rise of the Solicitors"
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Full steam ahead!
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The Inheritance Tax incentive and charities
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mfg launches charity Will month for St Richard's Hospice
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Understanding Business Accounts
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Charity Barn Dance
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Expert Witnesses - Impartiality and Balance
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New Barristers Chambers in Worcester
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Quill's investment in interactive documents
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Committee Members
Visit our website: www.worcestershirelawsociety.com or follow us on Twitter: @worcslawsociety
Patricia Beeching President Family Law Consultant, Hallmark Hulme Solicitors. Law Society Council Member for the Welsh Marches. Pat.Beeching@hallmarkhulme.co.uk
Priya Tromans Treasurer Barrister, St Ives Chambers priya.tromans@stiveschambers. co.uk
James Osborne Vice President Harrison Clark Rickerbys josborne@hcrlaw.com
Laura Bligh Admin and Events Headturner Search laura@headturnersearch.co.uk
Lisa Kemp Thursfields lkemp@thursfields.co.uk
Alex Phillips Secretary mfg Solicitors LLP alexandra.phillips@mfgsolicitors.com
Andrew Chandler Editor of Pears mfg Solicitors LLP andrew.chandler@mfgsolicitors.com
Hailey Nip Harrison Clark Rickerbys hnip@hcrlaw.com
John Aldis Barrister St Phillips Chambers jaldis@st-philips.com
Lara Wilkinson Russell & Co Solicitors lwilkinson@russell-law.co.uk
Robin Appleyard Silverback Law robin.appleyard@silverbacklaw.co.uk
Nick Hughes Painters Solicitors NAH@painters-solicitors.co.uk
Simon Hocking Silverback Law simon.hocking@silverbacklaw.co.uk
Rebecca Rogers mfg Solicitors LLP rebecca.rogers@mfgsolicitors.com
Georgina Hunt Social secretary HCR
Worcestershire Junior Lawyer Division JLD Charlotte Perry Chair cperry@thursfields. co.uk
George Charteris Treasurer George.charteris@ hallmarkhulme.co.uk
Nicola Pearce Social media Thursfields (Shared role)
Chelcie Evans Social secretary QualitySolicitors Parkinson Wright (Shared role)
Rachael Wheeler National JLD rep rwheeler@hcrlaw. com
Georgia Morris Social media Thursfields (Shared role)
Abbey Jones Social secretary MFG
Jessica McSorley Social Secretary jessica.mcsorley@ mfgsolicitors.com
Joeli Boxall Social secretary QualitySolicitors Parkinson Wright (Shared role)
Holly Mulligan Social secretary Hallmark Hulme
Shauna Halls Vice Chair shalls@thursfields. co.ukk
Luke Crocker Secretary Luke.Crocker@ hallmarkhulme.co.uk
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President’s Introduction Welcome to the first edition of The Pears 2019. The year ahead looks like being a challenging one for us all. With the advent of price transparency, the digital badge and forthcoming Handbook changes, the profession is facing a playing field with multiple goalposts that appear to move at will. Your Law Society is committed to supporting its Members through these changes. I hope the article on price transparency which appears below may be of some assistance. I am grateful to my colleague Linda Lee, Council Member for Leicestershire, Northamptonshire and Rutland who kindly allowed me to crib much of her work on the subject. On 23rd January, Worcestershire Law Society was delighted to welcome Pearl Moses, Head of Risk & Compliance at The Law Society to a breakfast meeting at the offices of Harrison Clark Rickerbys. The meeting is one of a series to be held around the country to address the implications of the Handbook changes made by the SRA and the risks and opportunities arising from them. I hope the meeting will be well attended, particularly by Managing Partners and those tasked with compliance. It is not overstating the position to say that this is a sea change in the status of our profession and we should all be aware of what it means. Any members who cannot attend the meeting but who would wish to know what the Law Society is offering by way of guidance are very welcome to contact me. Despite the doom and gloom, may I take this opportunity of wishing you all a Happy and Prosperous New Year. Patricia Beeching, President
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News News News News News News New tax expertise for HCR clients
news-parliament-2017/powers-report/ “Some of HMRC’s processes are Byzantine and having been on the inside track, I am ideally placed to understand what can and does go wrong and then help. I’m also looking forward to the opportunity to do more work nationally and internationally as I get to know my fellow partners, working as part of the HCR team.”
Fiona Hayles, head of banking litigation, whose PPI work has both set precedents and informed FCA guidelines, said: “This is great news for the team – it’s a real tribute to our in-depth knowledge of what lenders need and want in a challenging market. We’re a multidisciplinary team, bringing together finance specialists, transactional banking lawyers and regulatory experts, so that we offer the breadth of expertise and both the contentious and noncontentious experience required.”
Strategic support for lenders brings national accolade Thursfields wins top title at national Family Law Awards Sarah Woodall
Thursfields Solicitors have won a top title in the national Family Law Awards 2018.
Tax barrister Sarah Woodall has joined Harrison Clark Rickerbys to offer clients the benefit of many years of experience and expertise from her career at the top of the Senior Civil Service in HMRC, combined with her mediation and advocacy skills. Sarah, whose role is firm-wide, was with HMRC for 25 years, heading up its Anti Avoidance Investigation team and its Special Investigation Section (SIS), among other roles. In her new role, she will be working with both corporate clients and individuals to advise on tax disputes, investigations and disclosures. She will also work with accountants to support their clients through difficult and complex tax matters. Managing partner Rod Thomas said: “We are delighted that Sarah has joined us – I know we can provide her with the challenging range and variety of work she relishes, and that our clients will benefit from her considerable experience and her undoubted insight.” Sarah said: “I am looking forward to working with such a skilled team, to help to provide clients with the tax advice and strategic guidance they need to thrive – tax can be a real challenge for many people, and I enjoy helping them navigate difficult situations. “Joining HCR is a natural next step for me. It is a large national firm, full of talent, and this will enable me to extend the work I already do to support accountants to get the best outcome for their clients, some of whom , a recent House of Lords report confirms, are treated unfairly by HMRC https://www.parliament.uk/business/ committees/committees-a-z/lords-select/ economic-affairs-finance-bill-sub-committee/
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The Family Law department scooped the ‘Family Law Firm of the Year’ trophy for the Midlands at a glittering awards ceremony at The Ballroom, South Bank in London on 28 November 2018.
Fiona Hayles
Strategic advice for lenders covering growth plans, regulatory and policy issues and the day-to-day business of customer lending, combined with complex litigation expertise, has brought national recognition for Harrison Clark Rickerbys’ finance team. The firm’s Finance Group, which advises senior banks, challengers and all types of funds, as well as setting legal precedents on PPI issues affecting the whole industry, was highly commended in the Best Law Firm category in the Mortgage Finance Gazette’s annual awards. The awards recognise the great and the good within the mortgage sector, and are open to all lenders as well as those who advise or supply them. The firm’s innovative response to changes in the lending landscape, establishing Finance Generator as its own advisory business bringing finance finding and legal services together, as well as its links with major lenders on both deals and legal strategy, earned its accolade.
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Award judges praised Thursfields for having a “passionate and ambitious” Family Law department, said they were impressed with its “strong client testimonials” and highlighted its volunteering efforts for a local hospice. Shane Miller, head of Thursfields’ Family Law department, said: “We’re delighted to have won this title which reflects the strong growth and great achievements at Thursfields. Awards like this leave me very proud of the team and I know it will make us even more determined to maintain and refine the quality services and focus on the client that Thursfields always delivers.” Thursfields increased its turnover by 20 per cent in the last financial year, while the growing Family Law department achieved 23 per cent growth in revenues. Meanwhile, the Family Law team grew by well over a third in the last year and now has 13 fee earners across all Thursfields’ offices. Shane added: “This success at Thursfields’ Family Law department being recognised as one of the leading advisers in the Worcestershire and West Midlands area is based on the team’s skilled and cohesive approach.” The award follows recent plaudits in the latest
News News News News News News
edition of ‘industry bible’, The Legal 500, which praised Thursfields for providing a “first class service in family law” with strong capabilities in financial proceedings and children’s cases.
conveyancing experience across the region, has been appointed as a Senior Associate Solicitor.
It also described Shane’s leadership of the team as “very competent” and “switched on” and said she “has a knack of finding the right solutions to cases”.
Alison has joined the company from Clarke Brookes Turner Cary, having previously been a partner of Lodders in Stratford-upon-Avon, and prior to this a partner at Needham and James.
Outside work, Thursfields’ Family Law department is also actively involved in charity work, with the team last year working together to help to restore an unused garden area for residents at The Mary Stevens Hospice, in Stourbridge.
Nick O’Hara, Managing Director at Thursfields, said: “We’re delighted to welcome Alison to our team, and are confident that her expertise in the conveyancing of country homes will add a real depth to our Residential Property team.
The national Family Law Awards were sponsored by Lexis Nexis, the legal research and intelligence group.
Alison is the first of a number of new joiners we will soon be revealing as we continue to develop our conveyancing services in Worcester over the next few months.”
Thursfields recruits country homes conveyancing specialist in Worcester
Alison said: “I’m really excited to be joining Thursfields, a firm which attracted me with its growing reputation for a focus on the high quality of service to its clients.
Thursfields Solicitors has recruited a top country homes specialist to its Residential Property team in Worcester. Alison Wacey, who has more than 30 years
I have a wide experience of dealing with large rural properties that often need specialist input, and I plan to help Thursfields develop even
Alison Wacey
better solutions for clients facing complex legal title issues or difficulties.” Outside of work, Alison is married to a Doctor and has a son who attends school in Worcester. She is a keen cyclist, swimmer, reader and theatre-goer. The family own a holiday home in France and so Alison is also improving her DIY skills on projects at the property and is endeavouring to learn French. Alison added: “My clients have always thanked me for clear, calm advice and steering them through difficult situations with both professionalism and a great sense of humour.”
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News News News News News News If you require the services of Thursfields Charities and Communities department please contact Jenny Smith on 01905 677052 or email jsmith@ thursfields.co.uk
Law firm launches charity Will month for St Richard's Hospice
Jenny Smith Bob Heath Paul Fathers at Erlestoke Manor
Full steam ahead for locomotive charity, thanks to Thursfields Solicitors Thursfields Solicitors has helped a group of steam train volunteers to keep old steam locomotives on track by advising on a new legal structure for their organisation. The Erlestoke Manor Fund was established in 1973 to rescue the locomotives Erlestoke Manor and Bradley Manor after they were withdrawn for scrap by British Railways in 1965, returning both engines to full working order to run on the Severn Valley Railway. Jenny Smith, Senior Associate Solicitor in Thursfields’ Halesowen office and Head of the company’s Charity Sector department, said: “The Erlestoke Manor Fund is a very successful organisation with a large membership that’s met all its objectives over the years. But the Fund’s unincorporated structure left trustees, and potentially members, exposed to personal liability if the Fund did not have sufficient assets to meet its payments. We were instructed to advise on a corporate structure to limit the liability of trustees and members, but one that could reflect the current constitution, be tax efficient but still allow members to continue as shareholders. We recommended a charitable
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community benefit society which met all of those criteria and allowed a smooth transition of assets, activities and liabilities from the old to the new structure with minimal red tape.” Thursfields’ experts worked closely with the Fund’s trustees and agreed a bespoke constitution with the Financial Conduct Authority before the matter was put to members who voted unanimously in favour of the new structure. The change was timed to coincide with a significant contract for the latest overhaul of Erlestoke Manor at Tyseley Locomotive Works in Birmingham. Jenny added: “The Fund was able to enter into that contract in its own name, as a corporate entity with a legal identity, rather than in the names of the trustees of the Fund, as would have been the case under the previous structure.” David Kilner, Secretary and a Trustee of the Erlestoke Manor Fund, said: “We’re extremely grateful to Jenny Smith and her team at Thursfields Solicitors for putting the Fund on a more secure legal footing to enable us to continue our heritage work with less personal risk to Trustees amongst other benefits.” More details are available at http://www.erlestokemanorfund. co.uk
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Protection team, said: “St Richard's Hospice Write a Will month is always popular as it gives people the opportunity to have their will professionally prepared at a reduced rate. “Popular across Worcester, the campaign also gives people the chance to make certain that their possessions are passed on to those closest to them. We’re delighted to be involved and hope to see many people visiting us throughout next month.” In the past six years Amanda and her colleagues have raised over £18,000 for St Richard’s Hospice through the will-writing drive.
Specialist lawyers at Worcester law firm mfg Solicitors are supporting a Worcester hospice as part of a new year will-writing drive. Throughout February, mfg will be offering to write wills as part of the St Richard’s Hospice ‘Write a Will’ month – an initiative aimed at encouraging people to plan for their future. Inheritance experts at the Tything-based firm will be writing wills at a reduced cost £95.00 for a single will, or £150.00 for a couple. Amanda Piper (pictured above), an associate and head of the law firm’s Elderly Care and Court of
Ria Simons, St Richard’s Hospice corporate fundraiser, added: “We rely on the generosity of our community to support our care and the annual February Write a Will month is an important part of our fundraising. We’d like to thank Amanda and the team at mfg for continuing to support the hospice.” mfg Solicitors is taking part in St Richard’s Hospice Write a Will month throughout the whole of February. Readers wishing to make an appointment to visit the firm’s offices on The Tything can call Amanda on 01905 610410 or email amanda.piper@mfgsolicitors.com.
News News News News News News Charity barn dance raises funds for Worcestershire Breast Unit Haven
“The care they provide needs constant funding so I am delighted to see a great amount raised at the barn dance. It was a brilliant evening attended by people from across Worcestershire. The unit will always have a special place in my heart and I am thrilled that my friends and colleagues at mfg have done so much this year.” The event was organised by Caroline with support from many of her colleagues at mfg. Caroline who has been secretary to the firm’s chairman, Maynard Burton, for 12 years. Other events the law firm has held for the charity this year include an office ‘bake off’ and quizzes. Further information on the Worcestershire Breast Unit Haven is available on the charity’s website through www. worcsbreastunithaven.com mfg Solicitors has six offices across the region in Kidderminster, Bromsgrove, Birmingham, Worcester, Telford and Ludlow.
Maynard Burton and Caroline Davis
A fundraising barn dance hosted by a Wyre Forest law firm has raised £900 for a county breast cancer charity.
Based in Worcestershire and Shropshire, mfg Solicitors provide a balanced portfolio of commercial, agricultural and private client services.
Lawyers from Kidderminster firm mfg Solicitors welcomed over 100 guests to Kidderminster Harriers Social Club where they raised the funds for Worcestershire Breast Unit Haven – a charity which offers people clinical services, therapies and support at the new Worcestershire Breast Unit in Worcester.
New Barristers in Worcester
The charity is one of the law firm’s chosen causes for the next 12 months and was selected following the emotional support the unit gave to mfg employee Caroline Davis - a breast cancer survivor who was diagnosed with the disease in 2016.
Former Legal 500 managing partner, James Jarvis, has launched Silver Fox Chambers in Worcester. Based on The Tything, Silver Fox Chambers specialises in preserving capital and income.
Caroline said: “Staff at the unit are tremendous and gave me such amazing support as I successfully battled cancer over the past two years. “Not only do they provide treatments, but also superb advice on healthy eating and some of the best emotional support available.
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New chambers to service Worcestershire and Worcester County Court.
Opening its doors in April 2018 to work with solicitors, accountants and other professionals as well as local authorities and other public bodies in Worcestershire, Silver Fox Chambers can already claim strong relationships. It is receiving regular instructions locally from three commercial firms, two local authorities and one other public body; also from nationally recognisable firms
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as far afield as London, Manchester and Newcastle. Senior Clerk, Bruce Rodford, says, ‘Silver Fox Chambers anticipates rapid expansion over the next few years as we focus on delivering excellent service to our professional and lay clients at competitive rates’ Current practice areas include: - employment - commercial litigation - professional negligence - matrimonial finance - property litigation - professional regulation - commercial taxes and rates - pensions Silver Fox Chambers also offers litigation support services to out of town solicitors using Worcester County Court: - clerking and issuing - printing, copying and transcription - managed conference facility Silver Fox Chambers does not accept instructions from members of the public. Please get in touch if you have any immediate requirement for counsel or to find out more about our service provision on 01905 947 950 or by emailing clerks@ silverfoxchambers.org.
Return of probate fee rise ‘grossly unfair’, says Midlands tax lawyer
Revived plans to hike probate fees will saddle grieving relatives with thousands of pounds of bills and are “grossly unfair”, a leading tax lawyer has warned. The alert has come from tax expert Gary Priest after the Government said it is ploughing ahead with changes to court fees, scrapping the simple fixed fees in favour of an unpopular sliding scale. Mr Priest, a partner at law firm mfg Solicitors, said the new plans were an improvement on a similar proposal that was scrapped ahead of the 2017 General Election, but that they still amounted to a “stealth tax”.
News News News News News News Photo: FTImages
The new Whitehall-led arrangements will scrap fixed fees of £215 for individuals and £155 for anyone applying through a solicitor. Instead, people will pay up to £6,000 depending on the value of the estate. The government has said it is a 70% reduction on the original plan for a £20,000 maximum fee, which was dropped before the election. Mr Priest said: “The Ministry of Justice will dress this up as an improvement on its original, highly controversial and utterly unjustifiable plans. “However, it is still a stealth tax. People will still pay potentially thousands of pounds for exactly the same service they were receiving before for a few hundred. The flat fee was simple and it was fair. This is just a new form of Inheritance Tax by another name.” “The whole point of this was to make the system fairer and cheaper for people with lower value estates. Yet the amount by which fees have been hiked for higher value estates is unjustifiable. “The anger that greeted the proposal before the General Election made the government think again, but all it’s done is water the plan down rather than make it fit for purpose. It remains fundamentally flawed and grossly unfair.”
Rebecca Widdowson, Managing Partner of Hallmark Hulme, added: “We are delighted to welcome Rebecca to our Business Services team at Hallmark Hulme. Rebecca is able to provide cost effective advice to SME businesses at any stage from incorporation, through growth, succession and closure. Her strengths complement those of our current team and we are sure she will be a great asset to the firm.” Natalie Smith, Hallmark Hulme
Mr Priest added that he was concerned the measures could encourage people to try to avoid probate by transferring valuable properties into joint names with their children. He added: “There are consequences for people’s financial security and the risk of increased capital gains tax when measures are taken to try to avoid probate. Anyone thinking of the estate they intend to leave for loved ones must be properly advised so they avoid the pitfalls.”
Hallmark Hulme has strengthened its business team with the appointment of experienced solicitor Rebecca Hastings (Second from left in photo opposite).
She has joined an expert team at the Sansome Place-based firm, which has been operating for an impressive 228 years understood to make them the city's oldest law firm. The mother-of-two, who is a Worcestershire local, first studied Psychology before training and practicing in a leading International firm, where she was admitted to the Roll in 2013. Originally specialising in Construction Law, Rebecca moved to Worcester to undertake a broader business law caseload and works closely with companies to offer pragmatic, commerciallyfocused advice. “As a Worcestershire local, I'm delighted to be working for an established and highly regarded firm in the city. I look forward to bringing my corporate experience to the firm and building long term relationships with local business owners and managers” Mrs Hastings said.
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Council Member Report December 2018 W
hile I have no doubt Members of the Worcestershire Law Society are fully up to speed with the requirements of price transparency and the digital badge, the following article may answer some queries about the thinking behind this change and the implications for our firms going forward. This is, unfortunately, only the tip of an approaching iceberg...
introduction of these rules and provided its own research that demonstrated the dangers of consumers focussing too heavily on price rather than their service requirements. It pointed out that the real difficulty is that what appears at first blush as a relatively straight forward service, can contain so many variables that impact on price, that the information provided will be meaningless to most consumers.
Price transparency regulations/digital badge
It is possible that ultimately there will be a requirement to provide information in a format that can be accessed by price comparison websites but for the present consumers will need to wade their way through the myriad of cost information provided by different firms. Each firm that has so far complied appears to be producing information in a totally different way to the others.
Following pressure to implement the Competition and Marketing Authority recommendations of 2016, the Solicitors Regulation Authority (SRA) announced in October its plans to compel firms to produce costings on the website. As previously reported, from 6 December, the SRA now requires firms to publish indicative information on its charges and likely disbursements in the following areas of law: • Residential conveyancing (Freehold sale or purchase, leasehold sale or purchase, mortgages and re-mortgages) • Probate (uncontested cases with all assets in the UK) • Motoring offences (summary only offences) • Employment tribunals (bringing or defending claims for unfair or wrongful dismissal) • Immigration (excluding asylum applications) • Debt recovery (up to £100,000) • Employment tribunals (defending claims for unfair or wrongful dismissal) • Licensing applications for business premises (new applications or varying existing licenses) Pricing information must be displayed on the firm’s website or made available on request if it does not have a website. Firms cannot require the names or contact details of those seeking this information. The SRA has provided detailed guidancei but whilst there are lines that cannot be crossed and minimum requirements imposed, there are a number of options available to firms. The government and the SRA believe these recommendations will drive down the cost of legal services but given the many ways in which the guidance can be interpreted and implemented it is difficult to see how this will assist consumers.
Firms must explain what services are included within the displayed price, any services not included in the price (that consumers might reasonably expect to be included), details of the experience and qualifications of teams/ individuals who will carry out the work, typical timescales and key stages of the matter and must specify whether stated prices include VAT. Despite the obvious short-comings of the proposals, the SRA made it clear in their application to the Legal Services Board (LSB) that in time this requirement will be extended to other areas of practice. THE SRA have produced a list of mandatory requirements, firms must: • provide price information prominently, in as clear and in an understandable a format as possible. • specify whether stated prices include VAT • specify exactly what is included within the price displayed-even if you quote a fixed fee- to avoid confusion amongst consumers about what they might need to pay extra for • if firms provide a range of costs, it must set out the basis for charges, including any hourly rates and the types of factors that will determine what the final price will be. • If offering services in different ways and the delivery model impacts on the price, this must be made clear e.g. if you charge a higher fee for face-to-face services than for strictly online services. • online quote generators can be used but must produce a quote directly without requiring any additional contact, for example someone calling to discuss the quote.
The Law Society objected strenuously to the
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Firms do not need to specify any preferential rates and provided it is clear that the prices may vary from those advertised on the web site and on what basis, it does not appear that firms are compelled to offer services at the price indicated on the web site provided that the offering does not in any way mislead the consumer. Conditional Fee and damages-based agreements have additional requirements in that firms must state on the web site the likely timescale for considering whether or not to offer such an arrangement and the cost of any such assessment. Firms will also have to provide information on additional costs that may arise in the lifetime of such an agreement, including deductions from damages. The Law Society has produced a practice noteii to assist firms but there are difficult choices to be made about what information to present and how to present it. In the early days of December many firms either are unaware or have chosen not to display this information on their web sites, some have even taken their web sites down. Although it is unlikely that the SRA will use heavy handed enforcement in the early months of the introduction of the Rules, it would be a significant problem for the regulator if the majority of firms refused to comply. On 6 December the SRA also launched its new ‘digital badge’ that only regulated firms can display. The SRA state that the badge is, ‘Underpinned by technology which means it will only display on websites registered to law firms we regulate, the badge will help firms differentiate themselves from unregulated legal services providers.’ The SRA state that the badge is a response to the, ‘public’s demand for better information on the protections people get from using a regulated law firm’. The badge will be a portal to information explaining the protections offered to clients because the firm is regulated including insurance, access to the Compensation Fund, and the ability to complain to the Legal Ombudsman. Use of the badge will be mandatory for all SRA-regulated firms later in 2019. Initial reaction was three-fold, a sense of bemusement at the SRA’s position when it has striven to reduce the protection offered to consumers in the face of opposition from solicitors themselves, its planned reforms that will see solicitors offering services from unregulated firms with no or very limited
consumer protection, thus creating consumer confusion, and concern that the profession will be asked to pay to market and promote the new digital badge, to develop an alternative to the brand of ‘solicitor’. There are those who fear the next step will be
re-validation of solicitors’ qualifications. This has already featured in the Legal Services’ Board’s business plan. We live in interesting times. Pat Beeching Council Member for The Welsh Marches
Notes https://www.sra.org.uk/solicitors/guidance/ ethics-guidance/price-transparency.page ii https://www.lawsociety.org.uk/supportservices/advice/practice-notes/price-andservice-transparency i
Council met at Chancery Lane for the last time in 2018 on 5 December. Council report – 5 December 2018
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here was a packed agenda. Building on the intention of ensuring that Council plays a full part in discussing policy issues relevant to the profession, Council split into groups to discuss the Mayson review of legal services regulation: the key emerging themes will directly influence the Law Society’s position in response. Council also considered a forward planner for its policy debates, noting that the plan is to focus in February on topics in civil justice. On internal matters, Council reviewed a draft governance manual which pulls together in one place all the documentation relevant to the Law Society’s recently reformed governance structure. Ongoing issues around legal aid and access to justice were highlighted. An important part of the context is the significant reduction in the Ministry of Justice’s budget, which is expected to reduce overall from its previous level of £10.9bn in 2010 to £6.38bn in 2019-20. Spending on legal aid fell from £2.5bn in 2010-11 to £1.55bn in 2016-17. The fragility of the criminal legal aid market is compounded by the looming crisis in the number of criminal duty solicitors across vast areas of England and Wales. In 5 to 10 years’ time there will not be enough criminal defence solicitors in several regions, leaving many people in need of legal advice unable to access justice. A consequence of this is that more and more people now have to travel more than 20+ miles to their nearest Magistrates’ court, and the number of litigants in person attending both county court and family court has risen significantly in the last five years The Law Society’s LASPO Four Years on Review contained 25 recommendations, and can be found on our website. Our response and campaigns focus on early advice; meanstesting; advice deserts and sustainability of the profession. Our submission also included key
evidence and research, including three papers on the means test. Promoting the profession Justice Week is a new initiative run jointly with the Bar Council and CILEx, and it was reported on to Council. The Week was an opportunity to place justice and the rule of law at the centre stage of public and political debate. Events and activities took place both in London and regionally, including engagement with Members of Parliament, events in Wales, debates led by young lawyers, opening of a law clinic, workshops for students and much more. Council were also updated on the year-end report from the Solicitor brand campaign, a primary component of the Law Society’s work for members, promoting the profession. 81% of members scored promoting the value of using a solicitor as profession as 7 or more out of 10 for importance in our latest member survey. Influencing for impact Successes Recent successes were highlighted, including • The scaling down of the Flexible Operating Hours pilot • The changes to the domestic violence gateway rules • Our successful judicial review of the Crown Court Fee (LGFS) • The withdrawal of the proposal to close Cambridge Magistrates’ Court Parliament Our ongoing work to influence the legal and regulatory environment was highlighted to Council. For example, in October 2018 the Law Society and its campaigns were mentioned 10 times in the Hansard, 11 written parliamentary questions were tabled by MPs and we received two mentions of our early advice campaign in Justice Oral Questions.
Specifically, we briefed parliamentarians on the: • Civil Liability Bill • Counter Terrorism Bill on our concerns on legal professional privilege • Mental Capacity (Amendment) Bill • A debate on the LASPO review • Homes (Fitness for Human Habitation) Bill • Criminal Legal Aid. • The Law Society was invited to give evidence to Select Committees twice in October: • By the Justice Select Committee as part of a follow up inquiry on Brexit and the justice system. • By the House of Lords Economic Affairs Draft Finance Bill Sub-Committee on the draft Finance Bill. Practice excellence SRA handbook Now that the LSB has accepted the SRA Handbook changes which will impact on the future of profession, the Law Society will now focus on support and guidance and resources to support members through the change. Technology The Law Society has a strong interest in the impact of technology and data use on human rights. To help us understand this issue, we are examining one specific aspect: the use of algorithms in the justice system, through the Technology and the Law Policy Commission chaired by Law Society president Christina Blacklaws. Council was briefed on the public sessions being held to allow our commissioners to take oral evidence from experts. Session 3 will be held on 14 February 2019 from 3-6pm at 113 Chancery Lane. This session will focus on what controls, if any, are needed to protect human rights and trust in the justice system. A final report is due in May 2019.
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The last meeting at Chancery Lane Continued... The Society’s partnership with Barclays Eagle Labs, providing an incubator for Law Tech start-ups was explained to Council. The space is encouraging co-working and business incubation, collaboration and mentoring. Its event and meet-up spaces will help members become leaders in their field and strengthen the UK’s reputation for excellence in the legal services sector. The Law Society is also facilitating the LawTech Delivery Panel, a team of industry experts and leading figures from government and the judiciary, to help the UK legal sector grow and fulfil its potential. Announced by the Lord Chancellor in summer 2018, the panel is industry led and supported by government. By identifying both barriers to and catalysts for growth, the panel will provide direction to the legal sector and help foster an environment in which new technology can thrive. The panel will work with industry, government, experts and the
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legal community, addressing challenges related to regulation, investment and funding, education and skills, legal framework, commercial disputes resolution and ethics. Career Companion Women in Leadership in Law In her mid-year update on her presidential plan, the president drew Council’s attention to our women in leadership in law programme as well as her priority areas of technology and law (see above), access to justice, and mental health and wellbeing.
attendees have been held over the summer. Domestic roundtables have been undertaken across the country and specific groups (BAME, lawyers with disabilities, junior lawyers, judges) have also been targeted. Approximately 15 roundtables have been held internationally in Africa, North America, India and Europe.
She referred to the Law Society survey on women in leadership in law, the largest ever international survey with 7,781 responses. The top barrier to women’s progression is unconscious bias. Qualitative research to identify solutions has followed.
1,500 men’s and women’s toolkits have been issued. The majority of the top 50 firms have been involved. We started the men’s roundtables in November. Men from all sectors (in-house, small and large firms) have taken part including the Lord Chancellor David Gauke who attended to participate and support the initiative. Insights are being put together into report to be launched on International Women’s Day in March 2019. An International Symposium is planned for 20-21 June 2019. Bookings will be opening in the early new year.
230 roundtables with approximately 4,000
Next Council meeting 13 February 2019.
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hile I have no doubt Members of the Worcestershire Law Society are fully
Price
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The tripwires of 'fairness' to litigants in person? Litigation conduct after Wright Hassall
Gavin McLeod
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e are now in a different age. The effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) is now embedded. Much is made, and rightly, about the largely illusory ‘costs savings’ brought about by these statutory reforms. That is without saying anything as to the real questions the proliferation of litigants-in-person raises as to the quality and inherent fairness of our system. But beyond the philosophical and political arguments lies a reality: what we have is now here to stay. There is little or no reason to suppose that any government – and even a Corbyn-led Labour government – would take matters back to how they were.
In this new reality, the courts, and indeed practitioners, have had to adapt how they do things. For practitioners, the ‘normalisation’ of the presence of unrepresented opponents leads often to difficult ethical questions about adherence to professional standards as regards fairness to litigants-in-person, the requirement to ensure that relevant authorities are put before the court, and the like, versus the obligation to (in the words of the Bar’s Code) “fearlessly, and by all lawful means” pursue their client’s best interests in what remains an adversarial process. Following LASPO, in general, it appeared as though the system sought to assist litigants-
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in-person (as a collective) in ‘catching-up’. HMCTS rolled out attempts at increasing public awareness, whilst judges would tend to litter largely sympathetic judgments with warnings to the public about how the Civil Procedure Rules (however dense) were publicly available, and as to how latitude towards those representing themselves could not be eternally elastic. In 2015, an amendment to the CPR (r.3.1A) required, amongst other things, parties to take as their starting point in the preparation of directions such draft provision as is available online. Such essentially cosmetic changes may have played their part. But the situation remained that there was an ever-present likelihood that unrepresented parties would find themselves in default and obstructing the due process of litigation, and yet when they would seek (cynically or not) to excuse such by reference to their status. Such status, after all, was not the fault of the represented party, and could not – it might be thought – be used to undermine the proper litigation advantages to which the represented party ought to be entitled when noting his opponent’s default. As is well known, for the first time the Supreme Court had cause to consider this issue in Barton v Wright Hassall [2018] UKSC 12; [2018] 1 WLR 1119. The facts do not matter as much as the general principles articulated by the Justices, being ones which will probably be of considerable relief to practitioners. As Lord Sumption JSC put it: “Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR r 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties … The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter's legal rights, under the Limitation Acts for example.
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Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take”. However, it would be misguided to take from the conclusion in Wright Hassall that professionals may now eagerly await the pitfalls of their unrepresented opponents. To begin with, it is plain enough that the CPR, as supplemented by their numerous Practice Directions, are cumbersome and difficult to navigate - especially as regards their costs provisions and as to the rules of enforcement. The more prescriptive the system has become, the more rules (and Practice Directions) there are; and the more rules there are, the more difficult it is to make amendments except by addition and supplement. The irony of the ‘Woolf Reforms’ twenty years on is that the requirement of simplicity in civil procedure has led to an amassed and sometimes convoluted procedural code, as regards which many a lawyer will make a mistake from time to time. The White Book editors comment upon a number of rules as having ambiguous meanings, and a wealth of civil procedure case-law has come out in seeking to apply them. As convenient as it might be to read a rule which a litigant-in-person opponent has misunderstood or failed to apply after the event, and with the corresponding litigation advantage having accrued, as obviously only having one meaning, it is difficult to see that all judges will be convinced. The question of the ‘obscurity’ of rules may now begin to assume a new importance after Wright Hassall. At the very least, suggestions of hard to find or understand rules might reasonably be pursued by litigants-in-person, at least at the margins of their arguments as to reasons for non-compliance, if not even to enable them to obtain “special indulgence”: e.g. EDF Energy Customers Ltd v Re-Energised Ltd [2018] EWHC 652 (Ch) (at [37 – 38]]). Moreover, there are cases in which the court has discretion as to the retrospective reversal of the consequences of a party’s misjudgements. Wright Hassall itself was such an instance, in which the rule under consideration was CPR r.6.15 (allowing for retrospective validation of a purportedly served claim form). In Phoenix Healthcare Distribution v Woodward [2018] EWHC 2152
(Ch), a decision under further appeal to the Court of Appeal, Judge Hodge QC overruled Master Bowles’ conclusions that a firm of solicitors had been playing “tactical games” in not informing the claimant of a factor the ignorance of which was putting him into error (i.e. the fact that the recipient firm was not instructed to accept service). The Master had held that such inaction should count against the defendant upon the claimant’s later application for retrospective validation of service. It may be comforting to see in the appeal judge’s conclusions a reaffirmation of the adversarial underpinning of litigation, and to the effect that procedural rules as to assistance of the court in furthering the overriding objective did not (in the ordinary course of events, and without the other party’s contribution to a mutual misunderstanding, at least) require that party to point out the mistake to the other. Yet the matter is under further appeal, with the prospect of Master Bowles’ reasoning being restored. Moreover, of significance is the fact that both parties in the case had been represented at the material time. It certainly remains to be seen what the effect of a party’s being in person when he makes a mistake should be, so far as the represented party’s silence as to this mistake is concerned.
Plain enough it would seem to be that there could be no duty to point out the error (and certainly not without instructions), as indicated by Lord Sumption JSC in Wright Hassall (at [22]). However, that is a somewhat different question from that of whether not pointing out the error could count in the litigant-inperson’s favour when he afterwards makes an application to extrapolate himself from the consequences of his problem. The overall tenor of Wright Hassall is, with reasonable clarity, to the effect that such silence should not ordinarily count against the represented party, or at least not when the procedural rules which the litigant-in-person breached are straightforward. However, this is not definitive. There were various reasons explaining Wright Hassall’s success in that case, notably that the claimant had purported to serve on the very last day, and that any retrospective validation would deprive WH of an accrued limitation defence. If such potent factors are not present, it cannot be guaranteed that Wright Hassall provides for licence to enable the represented party to watch the unrepresented one dig his own litigation grave without any potential consequence whatsoever. This is especially so when it might reasonably be supposed that the represented party in some way guided the
litigant-in-person towards or facilitated the making of his mistake, for example by preexisting contact or communications and the implications reasonably to be drawn from them. Certainly before the outcome of Phoenix is known, it would be prudent in many cases for representatives to indicate quietly but straightforwardly how, for example, service will be accepted, so as to avoid any later suggestion that silence was an implied strategy and gamesmanship. There is a world of difference between not correcting a mistake actually made and doing such things as making it less likely that a mistake will be made in the first place. To feel compelled to point out an error would seem a step too far, but doing things in advance of any error which would clarify matters or remove ambiguities would not seem as onerous an approach to expect the represented party to embark upon, given his duty to assist the court in furthering the overriding objective. Gavin McLeod St Philip’s Chambers
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“The Rise of the Solicitors”… Just a Thought! Phillip Taylor MBE reviews this year’s Bar and Young Bar Conferences 2018 are trained through the vocational course “racket” as she called it, to some applause which was generally muted throughout the day. David Gauke, Lord Chancellor (and ex solicitor), who couldn’t stay long with us, like Shami, gave us a very civil service speech. Probably it was more relevant to solicitors, but he did announce that he would give us a little bit of extra money for legal aid to help the Young Bar, but not a lot if one is charitable. Of the 150 or so attendees there was not much to smile about including these Treasury crumbs of comfort although the Gauke money made that day’s press headlines. The stands were a bit thinner this time round, but it’s always good to see OUP and LexisNexis exhibiting new books and journals. Inner Temple maintained their excellent public relations record with their record on scholarships at their stand. What are called “break-out” sessions were all well attended in generally an even split of those attending what are, effectively, specialist areas to cater for what the Bar now does as highly specialist lawyers.
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o questions about it, of the many themes at this year’s Conferences, at the centre lurked the rise of the solicitor as both lawyer and advocate- to compliment the senior branch of the legal profession, of course. Themed as “All Bar None: Access… Development… Diversification”, the topics indicated current content and the approach of the Bar Council to our professional issues - the speeches were all good. Both events took place at the Connaught Rooms in London at the end of November 2018 to a well-attended, polite and receptive audience. The main Conference was chaired by Lucinda Orr who began proceedings introducing Andrew Walker QC, Chair of the Bar of England and Wales, for his annual address. As with all the main speakers, the speeches are available on the web, so this review looks at what the event achieved this year. Walker’s speech condensed much of what he has said throughout his year which has been quite successful for him and his team at a difficult time.
The Attorney General, Geoffrey “The Voice” Cox, gave a particularly delightful speech ticking all boxes on either side of the Brexit divide, and he never disappoints - he remains very much “our practitioner politician” when so many at the Bar leave once they reach Westminster. The afternoon is always tiring but no-one was asleep – there was no booze this year! But that did not make much difference as the subject-matter of the sessions, as always, is so relevant to our practices. The final discussion session reverted to our solicitor theme once more with contributions from Lord Justice Hickinbottom, HHJ Anne Molyneux MBE and Jonathan Ames from our sponsors “The Times”. It did sum up what we saw as a modest recognition that the Bar is changing, not just technologically, but practically in front of us. The role of the solicitor, and the Bar’s direct access continue to impact slowly for an altered client-base who seek different things in future. Whether that is with solicitors or barristers in the changed legal aid world we will wait to see. Do come next year and see what we get up to post-Brexit in a changed world!
Our keynote speaker was Lord Sumption, just before retirement. He gave an illuminating biography of his early years at the Bar, saying “I wish that I could say that I became a lawyer out of a burning desire to right the injustices of the world and help my fellow citizens”. He went on “There are lawyers who can honestly say that, and I take my hat off to them. My own motives were more mixed, more mundane and perhaps more typical. Top of the list, I am ashamed to admit, was money”. So, let’s get straight to the real theme because he was followed by several exsolicitors whose contributions were illuminating. We are noticing changes in way solicitors now work, by the advice they offer today as the lawyers whom clients first meet. The most revealing (and political) speech was delivered by Shami Chakrabarti, Shadow Attorney General (and ex solicitor). She set out some policy objectives for the next Labour government including a sustained attack on the way barristers
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What the inheritance tax incentive means to charities Tax incentives at risk The ongoing review of IHT by the Office of Tax Simplification (OTS) is an opportunity to create a more fair and simple system for the public, but it also puts the tax incentive for legacy giving in jeopardy. In fact, a recent proposal from one leading thinktank even suggested that IHT should be abolished altogether with little reference to the impact on charities. While the first OTS report was published shortly before Christmas and focused on how the administrative side could be simplified, it is the next stage that will unveil proposals for how IHT may be structured and what this might mean for the sector. It is impossible to second guess what decisions will be made, but Government has long supported gifts in wills and Remember A Charity is optimistic that future tax policies will continue to encourage and inspire giving.
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nheritance Tax affects a small proportion of estates and yet the tax incentive for charitable estates has a huge impact. Why does it matter so much and, in light of the ongoing review of Inheritance Tax, what is being done to protect the current environment for gifts in wills?
Why is the Inheritance Tax break so important for the nation’s charities? Cope says: “The reality is that the tax incentive serves to encourage and normalise charitable behaviour. It brings legacies front of mind, gets conversations about charitable giving started and helps to communicate just how meaningful a charitable bequest can be. It is hugely important that this incentive is maintained. Charities simply cannot afford to lose any legacy giving incentive, least of all IHT relief.”
Rob Cope, Director of Remember A Charity, says: “It’s a common misconception that tax relief is all about financial incentives. No matter how generous a tax break is, it’s rarely the sole or even primary reason to leave a charitable legacy. Ultimately, people give because they care and are inspired by the cause. Because they want to leave a positive contribution on the world when they are gone.” Charities are increasingly reliant on gifts in wills Here in the UK, the public gives over £3 billion in legacy donations annually. More charitable services are being funded through gifts in wills and the number of supporters is on the rise. In what remains a challenging fundraising environment, this income has never been so important. Currently, we have one of the most encouraging national fiscal environments to promote legacy giving. Charitable gifts in wills are exempt from IHT (charged at 40%) and any estates that includes donations of 10% of their value (or above) also benefit from a discounted rate of 36% across the remaining value of the estate. This framework has had a major impact on legacies, but not always in the way that most people might expect. Yes, research shows the tax relief can be a strong incentive for people to give, particularly for those who lie just over the IHT threshold. But the real issue here is that tax relief gives solicitors and financial advisers the added impetus to discuss legacy giving with clients. Because there is a tax benefit, legal advisers and Willwriters have a natural entry point for discussions with clients and this has been an important factor in driving behavioural change. Cope adds: “Within this environment – one that normalises legacy conversations and conveys the state’s support for the concept – gifts in wills are becoming so much more commonplace. The tax incentive is working and that’s why it is protected.”
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GIVING THE GIFT OF A LIFETIME It’s not every day you think about your Will and we understand your family and friends will always come first when making decisions about your estate. But once you’ve taken care of your loved ones, maybe you could consider including a gift in your Will to the Children’s Air Ambulance. The Children’s Air Ambulance is dedicated to helping children all across the UK get to the care and support they need. Fast. In fact, we can get children to the care they need 4 times faster than if they were to go by road. Our charity does not receive any government funding and provides all our services free of charge. We are enormously grateful for gifts of all types and sizes, and giving even just 1% of your estate will help us continue operating our service. If you do wish to leave a gift in your Will, you can name the charity as a beneficiary as either the Air Ambulance Service or the Children’s Air Ambulance. Our Registered Charity No. – which covers all services – is 1098874 and our address is Blue Skies House, Butlers Leap, Rugby, Warwickshire, CV21 3RQ.
If you would like to talk to someone about this way of giving then please call Chloe Bass on 03003 045 999, or email us at legacies@ theairambulanceservice. org.uk
Part of the Air Ambulance Service. Registered in England and Wales as a limited company by guarantee. Registered Company No. 4845905. Registered Charity No. 1098874
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Understanding business accounts – what to look out for L
awyers are good with words, and accountants are good with figures. What a pity they don’t talk the same language! Now meet an accountant who is Chris Makin good with words – I have to be, as an experienced expert witness – which means that I must be weak with figures. True? Not really! It’s a pity that so many people, some lawyers included, are frightened of figures, because the principles really are quite simple; they have to be, for me to understand them! Many accountants like to keep the mystique of business accounts to themselves, but I am happy to share.
An understanding of business accounts is important in so many aspects of the lawyer’s work: • A self-employed man is seriously handicapped after an operation went wrong; what would he have earned but for his disabilities? • A company director is killed in an RTA; but for his death, how much of his earnings would his dependents have received? • A couple seek a clean break divorce. The husband has a limited company; what is it worth, and what cash could be withdrawn to assist in the settlement? • A factory burns down. What would the future profits have been? • A factory burns down, and a false claim is suspected. Was the business really earning as much as claimed? • The directors of a company can’t get on, and a Section 994 claim is made. How much should the Court order that the unfairly prejudiced shareholder receives for his shares?
…and so on. In all these situations, and more, you the lawyer need to know what the past business accounts show, how reliable they are, and how they may be used as a basis for projecting future profits. How do you begin? Well, you could of course instruct an accountant to advise on every case where business accounts are involved; but in these days of stringent costs, that can’t happen. So how do you gain an understanding of which cases do need an expert accountant’s help, and which you, as a wordsmith but perhaps not a figure-smith, can handle yourself?
The first thing is to get a simple guide to business and company accounts. I can help. For some years up to the death of David Kemp QC I had a short chapter (9 pages) in Kemp & Kemp which gave this guidance. After Mr Kemp’s death the work was rewritten, and my simple guide is subsumed in the work of others. So it is out of print, but still highly relevant to lawyers dealing with all the kinds of cases I list above, and not just personal injury. I would be happy to send a copy, without charge, to whoever asks for it. The second is to have a friendly relationship with a forensic accountant who will perform an initial review of any case, and give his views, without charge if not appointed. I do this frequently; I don’t sulk if not appointed, and I tell you if I consider that an expert accountant is not needed. It’s good business for both of us: I am appointed only on worthwhile cases, and you have the assurance that someone who understands business accounts, and their relevance to your case, has considered them. If nothing else, it saves negligence claims! Thirdly, let us have a very brief look at what to watch out for. Once you have my Kemp & Kemp chapter you will be half-way there. But I will finish with some quick tips on what to look out for in limited company accounts: • The audit report: does it use standard wording for a “clean” report, or is the auditor trying to tell you something? • A qualified audit report (no “true and fair view” or a true and fair view “except”) is serious. Beware of what the auditor clearly is trying to tell you! • If there is no audit report, it may simply be because the company is too small to require one. But then there can be no assurance that a qualified accountant has looked at the books independently. • Even then, good accountants would not put their name to accounts which they knew to be wrong, so speak to someone who knows the good or bad reputation of the accountant. • Look at the Profit & Loss Account. Are dividends being paid even if a loss is suffered? Does that lead one to believe that matters are not so bad as the directors would have one believe? • Look at the Balance Sheet, and remember that the total (Shareholders’ Funds) is not the worth of the business. If that comes as a sur-
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prise, I will explain if you give me a ring when you have a spare half hour! Is Net Current Assets a positive or a negative figure? If the latter, is there fear that the company will not be able to pay its debts as they fall due? Ensure that you receive a copy of the detailed trading accounts, usually headed “Trading and Profit & Loss Account for Management Information only”. These do not form part of the statutory accounts, but they are essential to an understanding of the business. I insist on seeing these for several years, and I always start by charting them in Excel, to see whether turnover is going up or down, the rate of gross profit, whether expenses have any “quirks”, and so on. Seek explanations. Consultancy fees are usually interesting. What assistance was given? Was it to someone close to the directors? Was it at a market rate? Will the benefit of the consultancy be reflected in future profits? Directors’ remuneration: has it varied much? With a family company, the proprietors will take out salary, fees, benefits in kind, pension contributions, dividends, in a tax-efficient way. The salary will seldom be at a commercial rate. Depreciation: have the rates changed? Is there a suspicion that this is to increase (insurance claim) or reduce (divorce) profits? Fixed assets: after depreciation, are they shown at a realistic value? Remember that fixed assets are to be shown at historic cost (unless revalued) less depreciation, which can give a false indication of the value of the company. Is freehold property undervalued?
There is much more, but in this short article I trust I have provided something of value, so that you can decide with your many types of cases when a forensic accountant is needed, and when not to waste his time. But as a final point, if you wish to send me your key documents for a free initial review without obligation, that would never be a waste of time!
Biog: Chris Makin is one of only 100 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness – www.icaew.com/ forensicaccreditation/register. He is also an accredited civil & commercial mediator and an accredited expert determiner. He has given expert evidence at least 100 times and worked on a vast range of cases over the last 28 years. For CV, war stories and much more, go to www.chrismakin.co.uk.
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Expert witnesses – impartiality and balance
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n two recent but very different cases, there have been unusually strong criticisms of expert witnesses. They highlight the need for any expert witness to be seen to be independent and impartial and for their evidence to be balanced and not one-sided. Evidence from expert witnesses plays a crucial role in determining many disputes in different fields. For example, in personal injury cases, evidence from a medical practitioner will be required. Or in a commercial action where there are technical issues in question, the court may need evidence from an expert in the relevant field. Without experts to explain the medical, scientific or technical matters, a judge may be unable to understand properly significant aspects of the case and make appropriate findings about them. In our adversarial system of litigation, it is for each party to choose and instruct their own experts and adduce evidence from them. A party will naturally want their own expert’s evidence to support their position. Therefore, a party will generally only produce expert reports and call as witnesses, experts whose evidence is going to help that party’s position. However, if an expert is not impartial or gives evidence that appears one-sided, the evidence, although supportive of the party’s position, may turn out to be little or no worth, as demonstrated by two recent cases. Armstrong v ERS Syndicate Management Ltd – independence and impartiality The first case, Armstrong v ERS Syndicate
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Management Ltd, was a low value personal injury claim. The pursuers relied on the evidence of a medical expert with respect to the extent of their injuries. They were awarded damages based on that evidence. The defenders appealed, arguing that the expert evidence should have been found inadmissible or, alternatively, should have been given no weight. The main reason was that the expert’s independence and impartiality was questionable because he had agreed to act of contingency basis, meaning that he would only get paid if the claims were successful. The Sheriff Appeal Court had little hesitation upholding this appeal and finding the expert’s lack of independence and impartiality rendered their evidence inadmissible.
faced with the realisation during crossexamination that part of his evidence had not in fact helped CGI, the expert switched from one position to another. This was described as “highly unimpressive in the context of someone who is being offered as giving expert evidence.”
This resulted in the pursuers losing those elements of the damages awarded to them that were reliant on the expert’s evidence.
Conclusions Expert evidence is critically important to many cases. When that is the case, parties need to make sure they have experts whose evidence supports their case. However, as these two cases show, it is not enough to have an expert who will give helpful evidence. The expert must be independent and impartial and their evidence should be balanced and not one-sided. Otherwise, the expert’s evidence may be given little credence or even, if the expert lacks independence, be held inadmissible.
Agilisys Ltd v CGI IT UK Ltd – balanced approach The case of Agilisys Ltd v CGI IT UK Ltd was a very different type of case. A commercial action in the Court of Session, it concerned the termination of a subcontract for the provision of information technology services to a significant public sector client. The parties, the main contractor and subcontractor, were in dispute about a number of issues that boiled down, broadly speaking, to which party was in breach of its obligations and responsible for various delays. Each party relied on the evidence of an expert witness. Neither expert’s independence was in question. However, the judge, Lord Bannatyne, formed a markedly different view of the two experts and their evidence. Lord Bannatyne criticised the evidence of CGI’s expert witness in unusually direct terms. He stated: “I have come to the view that his evidence was one-sided. His approach was I believe not balanced. In addition for various other reasons I believe his evidence was not acceptable.” Over the subsequent eight pages of his opinion, the judge set out numerous matters that had led him to that conclusion. He highlighted, in particular, the expert’s failure to consider whether CGI might have breached any of its obligations. It is also noted that, on one occasion, when
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By contrast, Lord Bannatyne noted that Agilisys’s expert “looked at the responsibilities of both CGI and Agilisys” and was “prepared to make criticisms of Agilisys”, which he said were “examples of the essential balance in her approach”. Given his contrasting impressions of the two experts, it is unsurprising that, where their evidence differed, the judge largely accepted the evidence of Agilisys’s expert and rejected that of CGI’s.
Ben Zielinski Senior Associate, Shoosmiths T: 03700 868127 Ben is an associate in our dispute resolution and compliance team. Ben specialises in commercial disputes and is based in our Edinburgh office. He is qualified as a solicitor in both Scotland and England & Wales. Ben advises on a wide variety of commercial disputes including, in particular, information technology and energy sector matters.
Disclaimer The above text applies to Scotland. This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.
Why Quill’s software development team invests heavily in Interactive Documents By Julian Bryan, Managing Director, Quill
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he legal profession is never static. With alwaysevolving legislation, increasingly demanding clients and growing numbers of aggressive competitors, change is never far afoot. To thrive in such challenging conditions, law firms rely more than ever before upon technology. One constant thread in this sea of change is the written word. You see, the law is all about the written word. Every single task performed by a solicitor involves the written word in some form. Law firms are documentintensive by nature and every fee earner is a content factory generating document after document as they progress through live matters, be it a client care letter sent to a new customer, completion statement in a commercial conveyancing matter, divorce petition for a matrimonial case, last will and testament for a private client or anything in between. It thus follows that the primary role of technology is to help legal practices manage the written word effectively. Software’s role is to apply as much automation as possible to generating, storing, transmitting and finding the written word including time recording throughout each of these stages. Speed and accuracy are absolutely essential. The quicker and easier it is to produce, save, share and locate this expanding library of documents, the better for everyone, from the lawyer who can concentrate on client-facing work thereby boosting earning capacity to the compliance officer who can plan for business continuity thereby meeting Code of Conduct obligations. Because of this, no legal software supplier can afford to be complacent about development. At Quill, software development is something we take really seriously and invest considerable resources in doing. We have 12 dedicated employees in our software development team. Led by our IT Director, Richard Salt, it’s their responsibility to research new technologies and industry trends then develop our applications in order to keep Quill at the forefront of innovation and enable our clients to control the written word to the best of their ability. Our R&D staff understand the pressures faced by today’s law firms and continually enhance our Interactive Cloud and Interactive Documents software – comprising case management, legal accounts and document management features – to empower them to work more efficiently, save administration time, spend longer earning fees, reduce operating costs and a whole raft of other benefits which drive both greater productivity (so your clients are happy!) and profitability (so your partners and investors are happy too!). With regards to the written word, Interactive Documents – our intuitive document management module –
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provides tight integration between Interactive, Word and Outlook – called our Add-Ins – which allows you to spend your working day in familiar Microsoft applications with full links to Interactive’s database, templates and document store. Technology that constantly advances is a must-have tool for any forward-thinking law firm. Not only because of the productivity advantages delivered, but also for safety reasons. Without ongoing security patches and bug fixes, you’re vulnerable to the rising volumes of threats from hackers and cybercriminals whose sole purpose it is to disrupt (even ruin) your business. Software development, then, is a future-proofing promise that, whatever changes and challenges come your way, your software supplier’s got your back. At its core, our Interactive Documents gives unique integration between Interactive Cloud, Word and Outlook saving users re-entering data as a key, but by no means only, benefit. But more recently a myriad of new features have been introduced to Interactive Documents and we’re going to describe just a few of them here. We’ve created conversion to PDF and attachment as PDF functionality. As you’ll no doubt know, PDF is a secure file format. Documents of this type can’t be edited by recipients. In Interactive, it’s a one button task; job done. Using the Interactive Add-Ins in Outlook makes tasks such as this really straightforward. By simply hitting the ‘New Quill Email’ then ‘Attach From Quill’ buttons located in the top toolbar of Outlook, single or multiple documents can be attached as PDFs even if you haven’t previously converted files to PDF format. At this point, you haven’t formally logged in to Interactive itself either; you’re using the well-known Microsoft interface instead which you’re at liberty to do all day long, should you please. We’ve established an entire series of document and precedent templates comprising everything from credit control letters and identification forms to requests to extend time and receipt of money acknowledgements. These templates are supplied as standard with Interactive Documents. You can also choose to set up your own bespoke templates, link to merge fields in Interactive then auto-populate content direct from your database. In the same vein, popular forms packs can be purchased too as an optional extra. Linked closely to Interactive, these forms offer even more auto-database population for documents related to each of the common steps in particular matters. This has to be one of the biggest draws of document management software – the ability to generate documents and letters in minutes. Where Interactive Documents is concerned, the same applies to emails. Ready-made email templates allow emails to be written, recipients selected from handy drop-down lists, documents attached and the entire communication saved straight back to case effortlessly, all from within Outlook itself.
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In fact, you can even now do so from within Word. Auto-email the document you’ve been working on directly to the client, opposition, expert witness or any combination without switching between systems. Integrated attendance notes are another enhancement. Either when saving a just-completed document, receiving a document or later, the notes field permits the addition of attendance notes – that’s a description of discussions, meetings or events that have taken place – relating to that specific document. There are two main advantages of attendance notes. One, the important notes are logged both for future reference and to support your accompanying time record so there’s no chance of forgetting further down the line. Two, entering your attendance notes as you go along saves you an extra task and negates the need for double billing which assists with client satisfaction. Time recording generally is worth a mention. Our overhauled Interactive Documents lets you make time entries at various touchpoints when writing, uploading or dispatching case-related documentation and correspondence. With the ability to perform these stages quickly, you can record more units of time than the task has actually taken to bill clients appropriately for actions completed and boost chargeable time in the process. In other words, do less and earn more. These are just a few of many improvements to Interactive Documents. To refer to some others, you can set up calendar events from Word and Outlook with reminders to ensure defined milestones are met; maintain a full audit trail with version-control-stamped documents; assign colours, labels and preview before opening to locate the right documents with ease; access your cloud-stored documents from anywhere with an internet connection to become more mobile; tailor sub folders to your preferences so Interactive mirrors how you work; store unlimited quantities of documents, emails and images without taking up valuable space on your own servers; protect your vital records with industrial-strength security measures and in-built disaster recovery planning; and much, much more besides. The combination of these multiple features means you can run your legal practice competitively, with minimum support staff, at low cost. A ‘Lite’ version of Interactive Documents is provided as part of your Interactive licence fee. Alternatively, an advanced ‘Professional’ version is charged at just £17 per user per month for full integration with the Microsoft Office suite. Exploit our heavy financial investment in Interactive Documents without breaking your bank. The written word; sorted. Julian Bryan joined Quill as Managing Director in 2012 and is also the Chair of the Legal Software Suppliers Association. Quill is the UK’s largest outsourced legal cashiering provider with 40 years’ experience supplying outsourcing services and software to the legal profession.
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