Issue 31 Spring 2019
Awards
Thursfields supports young Caregivers - page 8
ALSO: Merger strengthens HCR and Sprecher Grier • Implying Good Faith into Commercial Contracts • Worcester Barristers Chambers support RGS Rowers and much more...
Bulletin Sponsored by
This edition... Issue 31 Spring 2019
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Committee Members and Member Firms
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Good faith and commercial contracts
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President’s Introduction
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Silver Fox and RGS Rowers pull together
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Worcs Schools & Legal Support
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Homebuyer’s Protection Insurance
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HCR's new Litigation expert
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Don’t appoint these experts!
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HCR & Sprecher Grier Merger
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Surrogacy and DNA testing
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The Tryangle Awards
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Wales and Scotland are Seeing Fastest Growth in
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Lifetime Achievement Honour
Charitable Bequests
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Spring farming seminar
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Finding out about care services for older people
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Worcs Law firm backs young swimming stars
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Law Society News
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Planning ahead for statutory payments increase
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Facing the Conveyancing frontline
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Business Networking event at St Paul’s House Hotel
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Solving the ‘back office puzzle’
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Spring 2019
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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 Spring 2019 Edition of the Pears In this past quarter, I believe I have witnessed some the best and worst aspects of our profession. On a high note, the Worcestershire Law Society Annual Awards, held this year at Grafton Manor Hotel in Bromsgrove, were a splendid occasion. Congratulations to all those nominated, shortlisted and successfully awarded trophies. This year the Society had its highest number of nominations and the Interview Panel came away from a day of meeting the shortlisted candidates impressed, heartened and, in some cases, humbled, by the dedication and commitment shown by those working in our profession, at every level. Our worthy Winners demonstrated the very best experiences of working in the Law and the achievements possible with hard work and the support, in many cases, of imaginative and far-sighted firms. Sadly, in contrast to this positivity, I received a copy of the Junior Lawyers’ Division Resilience and Wellbeing survey results. This is an important piece of work and in its third year the Division received over 1,800 responses. The
results were stark and alarming: 93.5% of junior lawyers responding to the survey had experienced stress in their role in the previous month, with almost a quarter of those reporting severe/extreme levels of stress. It must be of concern to us all that 1 in 5 junior lawyers had experienced suicidal thoughts in the month leading up to the survey. In relation to mental health generally, 48% of respondents stated that they had experienced mental ill-health (whether formally diagnosed or not) in the last month, a substantial increase on the 38% reported in 2018. A full copy of the report can be found on the JLD section of the Law Society website and I would urge members whether with responsibility for trainees/junior solicitors or not to read it together with the new guidelines for supporting resilience and wellbeing which will be released later this year. Junior lawyers are our future. Without their enthusiasm and hard work, the Worcestershire Law Society would be a far less interesting organisation. They deserve our support and a recognition that a cheerful acceptance of tasks does not necessarily mean all is well – sometimes they are not waving but drowning... Patricia Beeching, President
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News News News News News News
Natalie Kearney Worcs schools merge with local legal support Two Worcestershire schools have merged, supported by the legal expertise of Harrison Clark Rickerbys’ specialist education lawyers. Acting for RGS Worcester, senior legal counsel Kate Hickey led the team on the merger which brings Dodderhill independent girls’ school into the RGS family of schools. RGS includes two prep schools, RGS The Grange and RGS Springfield, for children aged 2-11 years as well as the senior school in the centre of Worcester for 11-18 year olds. Dodderhill will stay on its current site at Droitwich Spa. RGS Worcester is one of the oldest schools in the country, having been founded originally in 685 – it has been on its current site since 1868. Kate said: “We were delighted to be able to use our experience and expertise in the sector to act for RGS on this deal. There are specific issues relevant to schools merging which we frequently advise on, which means that our clients avoid l pitfalls and challenges in negotiation. This means that they can focus on developing their schools for the benefit of pupils and parents. “The two schools are an excellent fit and the merger went very smoothly for that reason – we have been working with RGS for several years and this is an exciting development for them.”
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Elizabeth-Beatty-and-Beth-King-Smith
Mr Ian Roberts, Director of Finance and Operations at RGS, said: “This is a great opportunity for both schools to work together and the process was greatly helped by the HCR team’s experience and skill; they are real experts in the education sector enabling them to anticipate what might arise and make sure we were prepared for it.” Harrison Clark Rickerbys has 500 staff and partners based at offices in Worcester, Cheltenham, Birmingham, Hereford, the Wye Valley, the Thames Valley, Cambridge and central London, who provide a complete spectrum of legal services to both business and private clients, regionally and nationwide. The firm also has a number of highly successful teams specialising in individual market sectors, including education, health and social care, advanced manufacturing, agricultural and rural affairs, defence, security and the forces, and construction.
New litigation expert boosts disputed wills and estates team Developing Harrison Clark Rickerbys’ contentious probate service in response to client demand, partner Beth King-Smith joins the firm as head
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of disputed wills, trusts and estates. Beth will work from the firm’s Worcester and Birmingham offices – she said: “Contentious probate, where wills, inheritances and probate are disputed, is a growing area, and one which presents people with very complex and upsetting challenges, often at a time when they grieving for a loved one. “I am very much looking forward to working with the dispute resolution team here – they have an excellent reputation for resolving issues out of court but being absolutely ready to fight their client’s corner in every way, which fits very well with my own approach.” Beth has extensive experience of working with those who have been cut out of wills, as well as with beneficiaries, heirs, executors, trustees and charities, as well as the families of those whose wills are being challenged. Elizabeth Beatty, head of the firm’s dispute resolution team in Worcester, said: “Beth is in an excellent position to lead this work – she has considerable expertise and experience, as well as a reputation for tenacity and for creating an excellent and supportive understanding with her clients.”
News News News News News News sectors, including health and social care, education, advanced manufacturing, agricultural and rural affairs, defence, security and the forces, and construction.
the Tryangle Awards Thursfields Solicitors has helped Recognising the achievements of young people in Worcestershire, we were delighted to support Kaitlin, Joshua and Charlie, winners of the Good Friends and Carers awards at the Tryangle Awards 2019 this week.
Nick Hughes Daniel Sejas and Sam Payne Merger strengthens HCR and Sprecher Grier The merger, which completed today, of law firms Harrison Clark Rickerbys (HCR) and Sprecher Grier brings growth in the London market for one and a broader range of services for the other – HCR is a full service firm with eight offices across the country and Sprecher Grier has a significant restructuring and insolvency (R&I) presence in London. The move brings former colleagues back together – Sam Payne, head of HCR’s R&I team, worked with many of the London firm’s team several years ago, especially partner Daniel Sejas. Sam will lead the merged firm’s R&I practice, and Daniel will lead the London restructuring & insolvency practice. Sam said: “This merger will significantly boost the continued growth of HCR’s London office and bring together two firms with excellent reputations, Sprecher Grier in the capital and HCR nationally. HCR’s London team will move into Sprecher Grier’s existing offices off Bishopsgate. For HCR, relocating into the City provides a great base for future development, giving critical mass to our offering in the capital across all services and sectors.
the combined firms’ restructuring & insolvency offering, and also enable us to offer our clients first rate additional legal services in other areas of law needed by national and international businesses.” Sprecher Grier has a leading R&I practice, headed by Daniel, who is a tier 1 ranked leader in insolvency, ably supported by his business partner Nick Hughes and a sizeable team. Harrison Clark Rickerbys has more than 500 employees and partners based at offices in Worcester, Cheltenham, Birmingham, Hereford, the Wye Valley, the Thames Valley, Cambridge and central London, who provide a complete spectrum of legal services to both business and private clients, regionally and nationwide. The firm also has a number of award winning teams specialising in individual market
Charlotte Thornton-Smith, head of our Worcester office, presented the awards which acknowledge the commitment and care for others which these three have displayed. Both Kaitlin and Joshua care for one of their parents – Kaitlin for her father and Joshua for his mother, and both have overcome difficulties to present school assemblies and increase their voluntary work, helping others to deal with the challenges they face. Charlie has become a champion for looked-after children and care leavers in the county and is not only determined to reach university in spite of his learning difficulties but also to support others to enable their voice to be heard. Charlotte said: ”I find the Tryangle Awards inspirational; they recognise young people who give so much both to their own families and to the community around them. It is always a pleasure to meet the winners and to hear their stories and I am so glad that we can continue to sponsor the awards as we have done for several years now.”
Daniel said: “From Sprecher Grier’s perspective, this will enable us to continue to offer our clients our impeccable legal services, significantly strengthen
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News News News News News News Lifetime achievement honour for agricultural lawyer
Jim Quinn with Pat Beeching A widely respected agricultural lawyer with more than 55 years’ experience in the rural legal world has been honoured with a lifetime achievement award. Jim Quinn, from law firm mfg Solicitors was recognised at the 2019 Worcestershire Law Society Awards where he was awarded the honour for his commitment to helping generations of county farmers, landowners and their families. Qualifying in 1964, Mr Quinn became a partner within a year and has been instrumental in mfg’s growth, mentoring new lawyers and building a revered reputation to become one of the leading agricultural solicitors in the UK.
Society’s Lifetime Achievement Award, Wolverhampton-born Mr Quinn added: “I am extremely humbled to have been recognised by the Worcestershire Law Society. I’ve enjoyed working with so many fantastic people over the years and making a difference to people’s lives. The agricultural industry is constantly changing but I continue to enjoy working with clients and guiding them through the various issues they are facing. The farming sector has played such an important role in my life.” Mr Quinn was a leading legal figure in the 1970s and 1980s when new agricultural tenancy legislation was introduced. He quickly became an expert on the new 1976 act and in the world famous Antrobus case, Mr Quinn took on and defeated HM Revenue & Customs in a case which was based around farmhouses and whether they should be free from inheritance tax. Headed by partner Iain Morrison, mfg’s award-winning agricultural and rural affairs division represents public and private sector clients across the UK including farmers, landowners and rural businesses. The Worcestershire Law Society Awards recognise excellence across the county’s legal sector. The Society was formed in 1841 to support and promote the work of the legal profession across the county.
The 79 year-old father of three continues to work as a consultant for mfg, advising on matters ranging from rural energy projects to agricultural tenancy cases. Maynard Burton, chairman of mfg Solicitors, said: “Very few people will ever celebrate six decades in the same profession, let alone with the same firm. Jim is a remarkable solicitor with a reputation that he has built and honed over several decades. “He is known as ‘Mr Agriculture’ in the industry and this only underlines how respected he is. Jim’s award is a wonderful milestone in an illustrious career. We are all extremely proud of him.” On receiving the Worcestershire Law
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mfg Solicitors and the CLA host spring farming seminar Over 70 landowners, rural business owners and land professionals attended a spring farming seminar in Ludlow – one of the region’s most popular agricultural events. Held at the town’s Ludlow Kitchen, the seminar was hosted by partners from mfg Solicitors and colleagues from the Country Land & Business Association (CLA). Chaired by Mark Riches, West Midlands Regional Director of the CLA, presentations covered topics including succession planning, landlord and tenant issues, pre and post nuptial agreements, minimum energy standards and a tax update. Guests were also treated to a drinks reception and a buffet which included a variety of local produce. Iain Morrison Head of the Agricultural and Rural Affairs team at mfg solicitors said: “This year was once again a really well-attended event which saw professionals and landowners from across the County getting involved in the debate and networking opportunities. I hope that they’ve gone away well-informed about the future of a sector which is seeing wide changes.” Below: Peter Stephens, Mark Riches, Iain Morrison, Richard Goodwin and Richard Connolly.
News News News News News News Statutory payment rates are reviewed by the Government every year. From 1 April the National Living Wage hourly rate will increase from £7.83 to £8.21. In turn, the National Minimum Wage will rise to £7.70 for workers aged 21 to 24, to £6.15 for those between 18 and 20, and under 18s will see the hourly rate increasing to £4.35. The hourly pay rate for the country’s thousands of apprentices will also increase – rising to £3.90 from £3.70. Ms Morris, partner and head of the Employment team at law firm mfg Solicitors, said: “The changes to statutory pay are only a matter of months away and they represent some of the highest increases on record with over 2.4 million workers set to benefit. Worcester law firm backs young swim stars for second year running A Worcester firm of solicitors has helped a popular city swimming club for the second year running with a £500 donation. Lawyers at Tything-based mfg Solicitors gave the donation to Worcester Swimming Club to help them hold their annual awards evening, showcasing the swimming talent among its members, who are aged between seven and 18.
“Worcester Swimming Club relies on a variety of volunteers so it was brilliant to also see those often unsung heroes, including the coaches, recognised alongside the boys and girls. Congratulations again to everyone involved and we will be tracking their progress closely.”
Firms must plan ahead as April statutory payments increase looms
The event, held at Sixways Stadium, celebrated the club’s competitive swimmers who competed at the 2018 Championships with a number of standout swimmers being recognised. The recent awards evening was the icing on the cake for the club after a successful year which also saw them qualifying for the National Arena League final in Cardiff for the second year running. Maynard Burton, Chairman at mfg Solicitors, presented many of the awards at the event. He said: “It’s always been a big thing for us to support local sporting talent and the awards evening showed just how many first-class young swimming stars we have here in Worcester.
“What is concerning is that many businesses across Worcestershire have still to get all of their payroll systems, pay structures and processes into place to ensure their relevant employees, including apprentices, are paid the correct rate from 1 April. “I’m out speaking to many businesses at the moment to ensure they cover all bases as non-compliance can result in hefty fines of up to £20,000 per underpaid worker, together with the underpayment, while directors of companies risk being named and shamed by HMRC if they are considered to be serious offenders. “The rule of thumb is prepare now to avoid huge financial and personnel issues later.”
Sally Morris Businesses in Worcestershire have been warned they face financial penalties and potential director’s disqualification if they aren’t prepared ahead of statutory wage payments increasing on 1 April. The alert has been issued by county employment lawyer Sally Morris who says that all companies must ensure their rates of pay are compliant with the looming changes if they are to avoid enforcement action from HMRC.
Ms Morris and her team are offering a free 15-minute telephone consultation to businesses who need further advice on the rise in statutory payments. Readers can email sally.morris@mfgsolicitors.com for to arrange a call. mfg’s employment department advises both businesses and individuals on all areas of employment and HR law. The team is also highly rated in the most recent edition of the Legal 500 and described as one of the leading employment law specialists in Worcestershire.
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News News News News News News
Paul Wright, Chris Piggott and Brian Flint
mfg Solicitors host business networking event Over 40 business professionals attended a breakfast networking event at St Pauls House Hotel. Held at the popular city venue, the event was hosted by law firm mfg Solicitors and was the first breakfast event held by the firm since merging with Pearson Rowe last summer. Opening the event, partner and commercial property specialist Brian Flint gave an introduction to the firm, its services and the plans mfg has to build on the good business rapport in the city.
Charles Dauncey, Pat Dales and Jack Morley
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Lee Gallagher and Ben Rothery
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Honesty isn’t enough- Implying Good Faith into Commercial Contracts Case Update: Bates v Post Office Ltd (No.3: Common Issues) [2019] EWHC 606 (QB) [‘Bates’]
T
he recent High Court case of Bates has brought the concept of ‘relational contracts’ into the spotlight. Despite some unfavourable judicial treatment in recent years, the High Court in Bates held that certain contracts between the Post Office and its Sub-Postmasters (SPMs) are ‘relational contracts’ and therefore subject to an implied obligation on the parties to act in good faith. Does this represent a move towards courts taking a more interventionist approach to implying terms into commercial contracts? Background of the Case The case is part of ongoing group litigation involving claims from around 550 SPMs claiming damages from the Post Office for losses arising from problems with the ‘Horizon’ EPOS and accounting system the Post Office rolled out in 1999/2000. The SPMs claim that Horizon contained a large number of software coding errors, that training on its was problematic, and that the telephone helpline failed, which resulted in accounting shortfalls which the Post Office then pursued against the SPMs, including bringing criminal proceedings in some cases. This judgment concerned certain ‘common issues’ in the group litigation, including the question of whether the standard contract between the Post Office and SPMs is a ‘relational contract’ such that the Post Office was subject to duties of good faith, transparency, co-operation, fair dealing, and trust and confidence. What are ‘relational contracts’? The concept of a ‘relational contract’ gained prominence following the decision of Leggatt LJ in Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111. Whether a contract is a relational one depends on the “circumstances of the relationship defined by the terms of the agreement, set in its commercial context”. If a contract is a ‘relational contract’ then the parties will be held to owe duties to one another of good faith. Judgment in Bates In Bates, Fraser J provided a list of 9 characteristics that a court may identify in establishing whether a commercial contract
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is relational, though this is not intended to act as an exhaustive list. The characteristics are as follows: 1. There are no express terms preventing the implication of a duty of good faith; 2. It is intended to be long-term; 3. The parties intend that their roles will be performed with integrity and fidelity to their bargain; 4. The parties are committed to collaborating; 5. The spirits and objectives of the parties’ venture may be incapable of being expressed exhaustively in a written contract; 6. Each party places trust in the other, but of a different kind to that found in fiduciary relationships; 7. The contract relies on a high degree of communication, cooperation, and mutual trust and loyalty; 8. There is a significant financial commitment or investment by at least one of the parties; 9. The relationship may be exclusive. Furthermore, the court rejected that a duty of good faith requires only that the parties act honestly. It requires parties to refrain from conduct which, in the relevant context, would be regarded as commercially unacceptable by reasonable and honest people. In the instant case the judge held that each of the characteristics was present and that there were additional features of the relationship that influenced their categorisation as relational contracts, including: Ultimately, a total of 17 terms were implied into the Post Office’s contracts with the SPMs, including obligations: • Not to take steps which would undermine the relationship of trust and confidence between claimants and the defendant; • To exercise any contractual or other powers honestly and in good faith for the purpose for which it was conferred; • Not to exercise any discretion arbitrarily, capriciously, or unreasonably; and • To exercise such discretion in accordance with the obligations of good faith, fair dealing, transparency, co-operation, and trust and confidence. What does this mean for other businesses? The problem is that most long-term, arm’s length commercial agreements are likely to contain the 9 characteristics identified in Bates as indicating that a contract is relational.
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The approach of implying additional duties into commercial agreements seems to go against recent cases, such as Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Limited [2015] UKSC 72 and Arnold v Britton [2015] UKSC 36, which adopt much stricter approaches to the interpretation of commercial agreements. There does appear to be a risk that the plain words of commercial agreements will be undermined if the duty of good faith is implied into commercial contracts generally. Although it could be inferred from the first of the 9 characteristics that parties could include express provisions to exclude an implication of good faith into commercial agreements, that is likely to be a difficult proposition to bring to any commercial negotiation. Given the additional factors considered in Bates, it seems unlikely that the courts will imply such additional duties into commercial agreements more generally. In any event, businesses who meet the characteristics in their commercial arrangements with other parties should be wary of engaging in conduct that may fall beneath the standards a reasonable and honest person may consider commercially acceptable. Natalie Kearney (2015) Pupil Barrister at St Philips Chambers, Birmingham. Natalie is currently a commercial specialist pupil in Chambers under the supervision of Ali Tabari, Anthony Verduyn and Marc Brown. Natalie is developing a broad commercial chancery practice within the Business and Property group and has experience in bankruptcy petitions, windingup proceedings, possession hearings and small claims. She is also part of St Philips’ Business and Property Juniors Group, which is hosting a Mock Trial event on 8 May 2019, which practitioners from paralegals through to solicitors 5 years’ PQE are welcome to attend. Anyone interested should email: asnipe@stphilips.com.
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Don’t appoint these experts! W
here you the lawyer have sweat blood on an important case, you don’t want an ill-chosen expert to spoil all your good work. As an experienced Chris Makin expert witness in a vast range of commercial, family and criminal cases, I offer this checklist of the experts to avoid. 1. Does the expert spend all his time as an expert witness? If so, proceed with caution. A medical person who retires and seeks to supplement their pension with expert witness assignments may very quickly fall out of date; other specialisms similarly may need someone who actually does the job as well as propounding about it. Interestingly, accountants tend not to fall into this trap. I for example have been a full-time expert in litigation for 30 years, plus acting as a mediator and expert determiner. And I know many accountancy colleagues who similarly do nothing else. We keep up to date with training, and seeing the problems caused by incompetent accountants.
telecon, find someone else! Litigation can be fast-moving as we all know, with tight deadlines. What if a Part 36 offer is about to expire, and you need your accountant expert to tell you if he thinks it is reasonable or not? I work alone, I answer the phone, and you will get an answer from me within a few hours at the most. Of course, if I’m in court or doing a mediation it may be later in the day; but I appreciate the need for rapid access, and respect it. 4. How will your expert look to the judge? First impressions, in any situation, are vital. An expert who turns up for a conference with counsel in jeans and a dirty sweater, or even just without a tie, may think this is acceptable in a courtroom. It isn’t.
3. Avoid the specialist who is difficult to reach If the specialist doesn’t return calls or emails, or if a secretary is protecting him from interruptions, or if you need to give 72 hours’ notice for a
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If there is any suggestion in the wording of helping you to win cases, or even of “gun for hire”, beware! I remember an orthopaedic surgeon who regularly lectured whilst dancing with a skeleton, and convinced defence solicitors and insurers that whiplash did not exist. Unsurprisingly, he acted only for defendants and he was very busy. But of course he became tainted, and such experts now have no place in the courtroom. Look for an expert who acts in broadly equal measure for claimants and defendants or, increasingly in family matters, as an SJE. Hot tub experience is good, too. And look for an expert who can take the balanced view. I for instance act as a mediator and as an expert determiner. I can usually pinpoint the strengths and weaknesses of a case, which puts me in a good position to discuss with you whether to run the case, or how to settle on best terms.
5. Does the expert have courtroom experience?
See 6 above – not sensible.
See also 1 above.
I find it quite arrogant of any expert to require a substantial first payment. Clients don’t sign blank cheques any more, if they ever did. Far better is the method I use: an initial review of any case, without obligation to instruct me, and with no charge at all if the matter does not proceed. Thus the instructing solicitor has no commitment to me, and has incurred no fees with me, until I have seen the key documents, provided a typed initial review of the case, and said how much a report is likely to cost. That is good business for me, since in the vast bulk of cases my initial report shows that I understand the issues, and leads to confirmed instructions. And on the rare occasions where I am not instructed, I don’t even sulk!
6. Look at the expert witness’s adverts
Similarly, think carefully about whether the expert appreciates that their function is to assist the court on matters within their expertise – that is, to explain complex matters in a way intelligible to the informed layman, the judge or jury – or whether they consider that their function is to maintain the mystique of their profession. At client meetings or in conference, can you understand what the expert is talking about? If not, this isn’t the expert for you.
See also 5 below. 2. The expert requires an advance retainer far in excess of the initial work needed
with a list of those of us who have reached this high standard.
When I first starting acting as an expert, many years ago, I often found myself ranged against an accountancy expert on the other side who didn’t have the first idea about what became CPR 35, FPR 25 or CrPR 33. They thought that their function was for their side to win at all costs, with their help. I feared that such dabblers could spoil the reputation of my cherished profession. I joined the committee of the ICAEW Forensic Group, and we worked for 7 years to devise an accreditation scheme for forensic accountants and expert witnesses. I was in the first group to become accredited, and there are still only 100 out of the 145,000 chartered accountants who have gained this kite mark – it’s stiff! So if you want a chartered accountant who knows what he is doing in this second profession of being an accomplished expert witness, this is the snappy address to put in your browser: https://www.icaew.com/ about-icaew/find-a-chartered-accountant/ find-an-accredited-forensic-expert! Or just Google ICAEW forensic accountant and look for Register. You will find a list of specialisms,
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7. Does this expert act only for claimants or for defendants?
Also, see what the expert has added to the literature. Have they, for example, taken a strong line in an article published in the legal press, yet be attempting to take the opposite line on your case with similar facts? This could be very embarrassing when the expert comes to be cross-examined. Do your research now, and avoid such problems. Google the expert’s name, and see what they have put on their website. I, for example, have a series of blogs and a long section on the sorts of cases on which I have worked – for both sides. Why not have a peep? My web site even has videos! 8. Check the expert’s disciplinary record and any reported cases This can be another trap in cross-examination. If the expert has been found wanting by his peers, avoid him. And if he has been criticised by a judge, a fortiori! One of my duties is to sit on the Investigation Committee at The Academy of Experts. In a recent case, a judge had severely criticised an expert, so that matter came to us. There were two sides to the case, and of course the expert has no right of reply
to a judge’s criticism, but it is on record. We advised the expert that he must tell all solicitors who now approach him that he has been criticised by a judge, but that he has undertaken additional training so that this doesn’t happen again. Maybe he will not receive the same number of instructions, but far better that, than that his next case collapses when he is cross-examined by the opposing side who have done the same homework which you should have done when choosing your expert. 9. The expert changes his mind between initial opinion and testimony This can be very nasty. Limit this risk by giving your expert full information at the earliest opportunity. And if he still lets you down, use others in future. But as for the expert who changes his opinions when other evidence shows that he should reconsider them, give that expert the respect he deserves. 10. Match your expert’s speciality or sub-speciality with his opponent’s An important stage in civil litigation is the joint meeting of experts, and I prepare for such meetings just as carefully as for a trial. But if the opposing experts are from different professions, or have specialised differently, that can be a great waste of time. For example, whilst I profess expertise on many aspects of accountancy and on business generally, I have not been a registered auditor for many years. So there is no point in asking me to apply the Bolam test in an auditor’s negligence case; and I would tell you so as soon as you approached me. There are so many sub-specialisms in many professions that it is essential to choose the right one – no point in choosing an expert in the follicles of the left nostril if the case is about the right nostril! So think very carefully about what are the areas of your case needing expert opinion, and make sure you get the right expert for the job. I hope this helps. And good luck with your future cases. chris@chrismakin.co.uk www.chrismakin.co.uk 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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The rise of surrogacy and the need for DNA testing S
urrogacy is now often in the news, fueled by both our celebrity culture and by increasing awareness of the possibilities afforded by a plethora of new technologies in assisted reproduction. In fact, surrogacy is part of ‘fertility tourism’ where couples or individuals choose to travel to other jurisdictions with a view to accessing services which may be prohibited, not available or too expensive in their native land. Such treatments are reported to number between 20,000 and 25,000 events per annum worldwide. The desire for a child has developed into a significant business sector and with differing international moral/ethical perspectives, the law has evolved quite differently in different cultures, where attitudes towards surrogacy vary from altruism to pure commerciality. There are several reasons why couple may choose the surrogacy option, including; a) couples who cannot, for whatever reason, have their own children, b) same sex couples desirous of a biological relationship with a child or perhaps more rarely, c) by social choice. In the UK the woman who carries the child and subsequently gives birth to the child is seen as the child’s legal mother. If this surrogate is married or in a civil partnership, their spouse could also be a legal parent of the child. In England at least, surrogacy contracts are not capable of legal recognition, which means the arrangements entered into under a compensated (reasonable expenses only) surrogacy are no more than informal agreements that rely on trust for their execution on both sides. For the legal rights of the child to be transferred from the surrogate to the intended parents (who commissioned the surrogate - notwithstanding that at least one of them may have a biological relationship to the child), an application for a parental order1 will need to be made within six months of the child’s birth. In doing so, the applicants are asked if they are “a genetic parent of the child”, a fact that can only be established be use of a DNA test which is conducted by an MoJ accredited provider, such as Complement Genomics and dadcheckgold.
notarised copy of the marriage certificate is also necessary. For British parents using a surrogate in the Ukraine it is often more convenient to locally obtain a UK passport for the child once born, although proof of the genetic relationship to one or both of the intended parents is generally necessary. This can be arranged by contacting us using the details below. The progressive approach of the authorities in the Ukraine, Russian Federation and US has already helped many childless UK couples and the law is highly favourable towards surrogacy in these jurisdictions. For intending parents wishing to go down this route, then appointment of an experienced UK based solicitor and an accredited DNA testing company is essential.. Nicola Lowes, LLM and Neil Sullivan, MBA, LLM, PhD www.dadcheckgold.com To discuss DNA testing for a surrogacy case, please call: 0191 543 6334 or e-mail: sales@dadcheckgold.com. Complement Genomics Ltd, the provider of the dadcheckgold service, is accredited by the Ministry of Justice as a body that may to carry out parentage tests as directed by the civil courts of England and Wales under section 20 of the Family Law Reform Act 1969.
Types of surrogacy ‘Traditional’ surrogacy involves insertion of sperm into the fallopian tube of the surrogate mother, who by virtue of using her own egg, is the biological mother of the child.
In terms of fertility tourism, the current preferred destinations are those where jurisdictions permit ‘paid for’ gestational surrogacy and the intended parents can gain legal rights over the child. This may either be by gaining direct parental rights or by making use of streamlined adoption procedures. It is the case that DNA testing is often required by the home authorities to prove the parentage of one or both of the donors after overseas surrogacy, by use of either a paternity or maternity DNA test, or both. The Ukraine, Russia and Georgia have liberal laws regarding commercial surrogacy (including for foreigners) and are the current destinations of choice. Indeed, many UK couples are choosing the Ukraine2 since: • The intended parents of the child are considered to be the biological parents from the conception • The intended parents are specifically named on the birth certificate to the exclusion of the surrogate mother or any donor • The surrogate mother cannot by law keep the child after birth • A donor or surrogate mother has no parental rights over the child and no adoption of the child is required • There are no restrictions on the payments.
‘Gestational’ surrogacy, often referred to as in vitro fertilization (IVF), involves implantation into a surrogate of an externally fertilized embryo where the intended parents provide the biological material and of the egg and sperm both, either or neither of which may be from a donor. Importantly, the child and the surrogate mother are biologically independent of one another.
Notes Form C51: Application for a Parental Order (Section 54 Human Fertilization and Embryology Act 2008). 2 Article 123 of the Ukrainian Family Code (as amended 22/12/2006, No 524-V) and Orders 24 and 771 of the Health Ministry of Ukraine. 1
The written and informed consent of all parties and a notarised surrogacy agreement is required (and which can be complex), plus there is the presumption that the intended parents are married, so a translated and
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Wales and Scotland are Seeing Fastest Growth in Charitable Bequests C
harities in Wales and Scotland are seeing faster income growth from gifts in Wills than other parts of the UK according to a new research report published by the 200-strong charity coalition Remember A Charity.
Rob Cope
The UK Legacy Fundraising Market 2019 summarises income from gifts in Wills to the nation’s top legacy-earning fundraising charities, exploring the impact of the recession and subsequent economic recovery. While charities across the UK have seen legacy income growth of 10% over the past decade, the smaller markets of Wales and Scotland have risen by 23% and 35% respectively. Health charities receive the largest share of donations, but the market is diversifying with many smaller and community-based organisations now being named in Wills. Overseas aid, environmental and services charities are increasing their space in the market, while those in the religious and social care fields are losing ground. Rob Cope, director of Remember A Charity, says: “Charitable bequests are often linked with the largest household name charities, but the market is growing and changing with non-profit organisations of all sizes and causes coming to the table. For many of these charities and their beneficiaries, a legacy gift can be completely transformational.” Importance of legacy giving Underlining the importance of bequests to charities across the country, the research finds that legacies now account for 28% of the UK’s voluntary donations. For the top 1,100 fundraising charities alone, this equates to over £2.2 billion of vital charitable funding. For charities such as RNLI, legacies fund 6 in 10 lifeboats and a third of Cancer Research UK’s lifesaving research. Cope adds: “As awareness about legacy giving increases and the professional Will-writing community continues to make their clients available of the option of including a gift in their Will, we’re seeing a longterm increase in the proportion of estates including a charitable gift. “There is growing appetite for people to support the good causes they care about long after they are gone. Once supporters understand that gifts in Wills don’t have to be particularly large and can fit around their wishes to look after family and friends, a charitable bequest can be a surprisingly easy and efficient way to give.” Currently, one in six probated estates include a charitable gift, but with the latest consumer tracking poll indicating that four in ten of the over 40s would like to do so, Remember A Charity believes there is significant potential for further growth. Challenges of a post-Brexit world Legacy income patterns tend to mirror the shape of the economy and reflect the number of estates going through probate. When property
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prices increase, inevitably estate and legacy values do too. While the report highlights that the 2008 recession led to a notable fall in income to charities, the market was quick to recover and growth continued in the subsequent years. Looking to the future, the coalition expressed some caution about the years ahead. With the impact of Brexit as yet unknown and a rapidly ageing population facing rising care costs, estate values may well suffer and that could have a considerable impact on the nation’s charities. Cope adds: “Charities are increasingly reliant on gifts in Wills and although the number of donors is on the rise, we can see that legacy income is being stretched across a broader marketplace. The charity sector is likely to feel that stretch all the more as we deal with the uncertain economic future of a post-Brexit world. It’s vital that charities work collaboratively with the legal sector and government to normalise legacy giving and provide a more stable basis for this vital income stream for the years ahead.”
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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Weinstein whistleblower calls on lawyers to consider ethical boundaries N
on-disclosure agreements (NDAs) must strike a balance between the rights of the client and the wider public interest, the chair of the Law Society of England and Wales Employment Law Committee warned. Max Winthrop was debating the subject with Zelda Perkins, a whistleblower involved in the Harvey Weinstein case. The event was organised by the Law Society as a contribution to the recent debate on the role of solicitors in the use of NDAs and confidentiality clauses - and what role ethical considerations should have. "Solicitors have a responsibility to stay on the right side of ethics when drafting confidentiality clauses," said Zelda Perkins.
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"We must remember that there is a disparity of power between a claimant and their employer. Even if well-advised, claimants are automatically in a position of weakness. "There can be enormous pressure upon claimants to sign non-disclosure agreements without fully understanding the long-term implications." Recent high-profile cases have proven a cause for concern, and the Law Society has been working with government to protect those who may be vulnerable. We have submitted written evidence on the law relating to the use of confidentiality clauses where harassment is alleged and made suggestions for possible improvements.
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"There will be situations in which confidentiality clauses are entirely appropriate - and in some instances, in the interests of the claimant and employer," said Max Winthrop, chair of the Law Society Employment Law Committee. "However, the boundaries of these agreements must be made clear to clients and to claimants - in particular, they cannot prevent the reporting of criminal behaviour. "With the enormous public scrutiny on this issue, it's right that solicitors consider where responsibilities lie - to their client, but also to the public interest."
W
hile I have no doubt Members of the Worcestershire Law Society are fully
Following pressure Competition and recommendations
to implement the Marketing Authority
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Facing the Conveyancing Frontline I
really enjoy getting involved with industry-based events to hear first-hand the current issues and opportunities that are facing property lawyers and conveyancers. Landmark Information has been hosting a series of regional roundtables that bring together groups of property law experts to discuss the challenges and trends that are impacting on the property conveyancing process in 2019. I was interested in hearing the issues that emerged, which were mostly centred on three key themes; customer experience, service transparency and technology in conveyancing. 1. Customer Experience At our Birmingham event, there was agreement around the table that client expectations have changed considerably over recent years, which are creating additional pressures on property lawyers when handling a property transaction. It was felt that the Internet, smartphones and email have all led to a change of consumer expectations. People have become accustomed to instant gratification in many walks of life; for example, if you have a question about almost anything, Google will be able to serve you an answer in mere seconds. Amazon will allow you to buy a product in a few clicks and receive the item the very next day and so on. It was felt by the lawyers at the roundtable that people are now expecting a similar experience when buying or selling a home. They want answers immediately and the increase in emails and chasers calls, both in and out of working hours, are up. Consumers are expecting a more modernised service where they can see the progress of their transaction online, or the answers
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to questions returned as promptly as a Google response. For those around the table, they were concerned that consumers don’t necessarily understand the complexities involved in the legal process when it comes to buying a property – and of course why would or should they – so a great deal of education is needed to ensure consumers are aware of the process, the intricacies involved, and the realistic timescales at the outset, to ensure they are satisfied with the service being provided. 2. Service and Price Transparency This led on to the topic of the new pricing transparency requirements that came into play from the SRA at the end of 2018. The rules mean that firms providing property conveyancing must publish user friendly price and service information on their websites, which consumers can access.
transparency of such fees. They felt that as conveyancers must publish pricing information up front, then should it also be the case that the public should be made aware of related fees, such as these? It was quite clear from everyone who has attended our roundtables to date that this is an area that needs to be looked into further. 3. Technology Adoption The final big talking point from our roundtables has concentrated on technology and what role it is playing to create efficiencies in the process. An area of agreement centred on the ‘joining up’ of all parties involved in the process; cross-industry collaboration is considered key to overcoming various ‘pinch points’ to help reduce the time it takes, while also removing duplication of effort for all involved.
It was also agreed that case management solutions and online search ordering platforms are supporting lawyers in having greater visibility of every transaction, which is helping. Likewise, they are helping to automatically populate information on forms or remove some of the previously manual tasks, meaning fee earners have more time to spend on the more complex aspects of the job. Also, as Artificial Intelligence becomes more interwoven with such applications, the expectation around the room was that timescales are likely to improve further still as administrative tasks are simplified. In fact, it is more likely to be a matter of ‘when’ and not ‘if’. www.landmark.co.uk
The aim behind this is to help consumers not only understand the cost and details of the service being provided, but to help them make better informed decisions when selecting a legal services provider. At the roundtable, the jury was out as to the impact of the rules due to the infancy of them, yet the general feeling was that it will help consumers understand more about what is involved in a transaction, by seeing itemised information. There were however concerns that consumers would use the pricing as a bartering tool against other firms, which could drive prices down in a market that is already struggling with maintaining healthy margins. Off the back of this discussion, it led to the topic of estate agent referral fees and a general unease of those in the room regarding payment of referral fees to agents. The lawyers, both at our Birmingham event and another we held in Exeter, questioned the ethics around this practice and raised a query of the
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FINDING YOUR VOICE IN TODAY’S DIGITAL AND PRINT MEDIA
East Park Communications Maritime House, Balls Road, Birkenhead, Wirral CH43 5RE www.eastparkcommunications.co.uk
Solving the back office puzzle By Julian Bryan, Managing Director, Quill
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rue professional ‘cradle to grave’ solutions are difficult to find. It’s rare that suppliers to the legal sector offer everything needed in a modern-day law firm’s back office – that’s software to manage accounts, matters and documents, and outsourced services to take over core administration functions. At Quill, however, that’s exactly what we do – provide a single platform that combines the applications and outsourced support required to operate a highperforming legal business. You only have to look at our website’s home page to meet the entire series of software and services available from Quill. Users can pick and choose from: Interactive – case management, legal accounts and document management software with in-built risk management functionality; Pinpoint – outsourced legal cashiering service using Interactive; Payroll – outsourced payroll and pension management service; Type – outsourced typing service delivered in association with Document Direct; Precision – outsourced legal cashiering service on any software; and Bookkeeping – outsourced bookkeeping service for all sectors. But before diving into more detail about our software and services, we’d like you to join us on a mini history tour of Quill in order to show you how this full service provision has come about. You see, we actually first started out in business way back in 1978 – over 40 years ago. Right from these early days, our systems were being designed to help practices avoid unnecessary repetitive paperwork tasks for which the law is renowned. In the intervening 40-plus years, the legal industry remains our absolute focus, our technology has developed to the current complete cloud-based practice management system it is today, and our offerings have been extended to also include outsourced cashiering, payroll and typing services. 1978 to 2019 has been a truly remarkable journey. To quote some statistics from the present day: our Interactive software has earned over 7,000 current users; our Pinpoint division posts over 2 million transactions every year; our Payroll team processes over 100,000 payslips annually and last year transferred over £54 million in salaries as an accredited BACS bureau; every other department just keeps growing. Going back to why Quill’s so unique, our lengthy heritage, privately owned status and one-stop-shop portfolio really set us apart from our competitors. Few of our contemporaries can boast a comparable expansive background. Fewer still can make claims about independent ownership. And even fewer can proffer a total back office product range. Moving on to our clients, many of our users have been with us from the very beginning. Their continued loyalty speaks volumes about the close relationships we’ve formed together over a period of four decades and the quality of our various solutions which they use on a day-to-day basis. Browse through our multiplying number of case studies online and you’ll see how our clients wax lyrical about our personable,
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long-serving employees who are ambassadors for Quill; ethical stance evidenced by multiple accreditations and charitable giving; technologically advanced software that’s won awards; and catalogue of outsourced services which allow them to concentrate on their business-critical responsibilities without distraction. Clients repeatedly tell us that, simply by choosing Quill as their principal business partner, they’re able to become “digital by default”, “compliant to the letter of the CLC Accounts Code”, “free to do what I do”, “a successful, profit-making firm”, “focused on matter management and business development”, “revolutionised”, “100% assured of regulatory compliance”, “more economical and productive [with] use of resources – both human and material”, “able to work flexibly when out of the office”, “committed to the cloud concept” (note: their words, not ours!) and much more besides. Nick Timmings, Partner at Petersfields LLP, perfectly sums up what clients think about Quill: “By relying on Quill for all our main software and service needs, we have one monthly payment, one point of contact and one primary store of our electronic files. It’s so convenient and so much easier to run our business in this totally integrated way”. Allan Hunt, Senior Partner at MPP Solicitors, expresses similar sentiments: “[With] Quill we have trusted relationships. [We use] Payroll as a bolt on to Quill’s Pinpoint service and Interactive software which we already subscribe to. With Quill firmly behind us, our back office operates smoothly and integrates seamlessly.” By utilising our extensive time-saving, efficiency-enhancing, costreducing, security-boosting, compliance-assured products, an evergrowing list of benefits are achieved. Through heavy investment in R&D, we ensure this is the case. Our ongoing software and service development is a future-proofing promise that, whatever changes and challenges are faced by the legal profession, Quill’s got every client’s back. We know that not all firms are the same. Each has differing demands which are best overcome with a differing mixture of software and services. It’s our role to ascertain what this is, thereby providing the proper tools to take control of processes and optimise performance, both now and into the future. We find nothing more satisfying than empowering law firms to do just that. To discover more about Quill, please visit www.quill.co.uk, email info@quill.co.uk or call 0161 236 2910. Julian Bryan joined Quill as Managing Director in 2012 and is also the Chair of the Legal Software Suppliers Association. Quill has been a leading provider of legal accounting and case management software, and the UK’s largest supplier of outsourced legal cashiering services, to the legal professional for over 40 years.