Pears Magazine issue 44

THE

WLS TEAM UP WITH 'THE DAIRY MADE' FOR A CHEESE AND WINE MASTERCLASS

ALSO: • Painters Law Relocates • Lifetime achievement award for Maynard Burton • Experts under scrutiny and more...

Andrew Chandler President mfg Solicitors LLP andrew.chandler@mfgsolicitors. com

Laura Osborne Administrator Headturner Search laura@headturnersearch.co.uk

Charlotte Perry Outgoing President Parkinson Wright cap@parkinsonwright.co.uk

Nick Hughes Committee Member HB 121 Solicitors nah@hb121solicitors.co.uk

Darryll Thomas Committee Member mfg Solicitors LLP darryll.thomas@mfgsolicitors.com

Stephen Hurley Committee Member University of Worcester s.hurley@worc.ac.uk

Rachael Wheeler Committee Member Saunders Roberts rachael.wheeler@ saundersroberts.co.uk

Patricia Beeching Committee Member Law Society Council Member for the Welsh Marches

John Aldis Committee Member St Philips Chambers jaldis@st-philips.com

Rhiannon Phelps Social Secretary Hallmark Hulme rhiannon.phelps @hallmarkhulme.co.uk

Zoe Webster Social Secretary Hallmark Hulme zoe.webster@hallmarkhulme.co.uk

James Osborne Treasurer Harrison Clark Rickerbys josborne@hcrlaw.com

Alexandra Phillips Committee Member mfg Solicitors LLP alexandra.phillips@mfgsolicitors. com

Luke Crocker Committee Member Bradley Haynes Law Luke@bradleyhayneslaw.co.uk

Marina Akram Secretary Silverback Law marina.akram@silverbacklaw.co.uk Olivia Jubb Vice Chair Harrison Clark Rickerbys ojubb@hcrlaw.com

Katie Banks Editor of Pears mfg Solicitors LLP katie.banks@mfgsolicitors.com

Amy McGowan-Docherty Deputy Editor of The Pears Solicitor – Harrison Clark Rickerbys E: amdocherty@hcrlaw.com

Georgina Hunt Chair Harrison Clark Rickerbys ghunt@hcrlaw.com

Priya Tromans Committee Member St Ives Chambers priya.tromans@stiveschambers. co.uk

Lucy George Social Media Secretary mfg Solicitors lucy.george@mfgsolicitors.com

President’s Introduction

Anna Rennie-Johnson (aka “The Dairy Made”) provided those in attendance with an informative and delicious education in pairing the right wines with the right cheeses. The evening was generously sponsored by Verify365 and proved to be very popular and well received. Given its success, it is likely to become an annual autumn/winter WLS social calendar fixture so for those who missed it, or for those who enjoyed it, there will be future opportunities to attend.

the usual business we will be holding a quiz and an informal social gathering with light refreshments.

My thanks as ever to all those who have contributed to the content of this edition, to the editor and deputy editor and to all of the committee of the WLS who work very hard alongside their other professional and personal commitments to serve the WLS and to help in its charitable fundraising efforts.

Welcome to the Winter edition of the Pears Magazine. On behalf of the committee I hope you all enjoyed a restful Christmas and end to 2022 and have already made a great start to 2023!

Since our last edition, the WLS hosted a cheese and wine evening at The Old Porcelain works in Worcester where Lee-

Our next event, which will have taken place by the time this edition goes to print, is the WLS crazy golf event at Mr Mulligans in Worcester. Teams of 4 representing the best of the best that their firms have to offer will battle it out for glory and for the allimportant local bragging rights!

The next big event in the WLS calendar will be the AGM. Please make a note of the details when this has been set and do attend if you can. Other than transacting

I hope to see you at one of our future events and should you have any queries for the WLS please do not hesitate to contact either myself or another member of the committee.

Kind regards,

Andrew Chandler President, Worcestershire Law Society 2022-2023

Painters Law Relocation of Kidderminster Office

Painters Law LLP (previously Painters Solicitors) has been based in Church Street, Kidderminster since its establishment in 1951. Painters Law has continued to develop and prosper throughout their 71 years of service to the community, and the firm have now taken the opportunity to expand their premises to the Wyre Forest House. The law firm, which has a second office in Stourport, will be moving to this new location in January 2023 and hopes to continue supporting the clientele of Kidderminster and Stourport respectively.

Painters Law LLP will be offering property law, wills and probate, family law and civil dispute resolution which will all be housed within the new venue.

Wyre Forest House is the iconic and modern building situated on the A451 between Kidderminster and Stourport and is aptly situated to offer ease of access to all visitors. The new site offers free visitor parking and disabled access, alongside modern conveniences such as an on-site café and courtyard areas.

Chanal Griffiths, Partner and Head of Property, summarized the office move by commenting “the move will ensure that the firm continues to prosper over the coming years, as well as showcasing that the firm`s traditional, core values of client care and outstanding service align with a new, more modern building that is the Wyre Forest House”.

HCR

represents client in a landmark case involving arbitration

Head of Family Law at HCR, James Grigg, has represented a client in a landmark case involving arbitration.

Arbitration has become increasingly popular, particularly during (and following) the global pandemic. In this case, the parties were involved in arbitration relating to the arrangements for their children following the breakdown of their marriage. In particular, the arbitrator had to decide whether the other party should be permitted to relocate with the children to a different part of the country. Following a two day arbitration, during which the arbitrator heard evidence from both parties and an Independent Social Worker, the arbitrator delivered his judgment, known as a “determination”. The arbitrator refused the other party’s relocation application and provided for an equal shared care arrangement for the children.

Thereafter, the other party sought to set aside (basically appeal) the arbitrator’s determination.

The matter was eventually considered by a High Court Judge, Mr Justice Peel.

This case was significant legally as, prior to it, there was no known reported legal decision about the correct legal test and/ or procedure to be applied where there is an application to the Court to set aside or challenge an arbitrator’s determination in children proceedings.

The decision of Mr Justice Peel in G & G [2020] EWFC 151 sets out the relevant law and procedure. Helpfully, in an Appendix, Mr Justice Peel sets out the correct procedure to be followed where a party seeks to challenge or uphold a determination. It sets out the relevant application, namely a C100, unless already filed, followed by a C2. This should be filed within 21 days of the arbitrator’s determination in its final form. It then allows for directions, to include the preparation of skeleton arguments and the steps to be taken by the “gatekeeper” when considering the application on paper. A Judge will then conduct a “triage/paper” exercise without a hearing and will decide whether the permission to appeal test has been passed. The Judge should give brief written reasons.

If the Judge decides that the permission to appeal test has not been passed, the Judge will make an appropriate order and the unsuccessful party is likely to be penalised in costs. If the permission to appeal test has been passed, then directions will be given for a hearing of the application. A draft gatekeeping order has been attached to the judgment. Accordingly, as a result of this decision, there is now much needed clarity with regard to the legal test and/or procedure to be applied when a challenge is brought against an arbitration determination relating to a children dispute. This case will, no doubt, be relied upon in any future cases where a party either seeks to challenge (or indeed uphold) an arbitrator’s decision.

Law firm boosts civil litigation team with new appointment

Regional law firm mfg Solicitors has expanded its civil litigation team with the appointment of a new senior associate.

Specialist lawyer David Lydon has joined mfg and will play a key role leading on cases around clinical negligence and personal injury claims.

David will report to partner and head of department Sam Pedley, having joined mfg after five years at Sydney Mitchell LLP.

Chanal Griffiths

James Grigg

Sam Pedley, partner at mfg Solicitors said: “David brings a wealth of experience to the firm and our department after successfully acting across a huge variety of clinical negligence and personal injury claims over a distinguished 30-year career.

“His vast knowledge and expertise on all manner of claims, particularly cases which are complex, adds another dimension to the team as we look to expand our litigation work, particularly our clinical negligence and personal injury offering. He is already making a difference with a variety of clients he is working with.”

David Lydon added: “The firm’s exceptional reputation, ambition and excellence around personal injury and clinical negligence cases were the main reasons behind my decision to join.

“I know the firm and the market well so I am excited to have the opportunity to develop and expand our offering in the city and across the wider region.”

Readers looking for advice around clinical negligence and personal injury claims can contact David directly through david. lydon@mfgsolicitors.com

mfg Solicitors LLP raise charity funds through Christmas drinks event

Partners and staff from Worcestershire law firm, mfg Solicitors LLP, hosted the firm’s annual Christmas drinks event which this year raised funds for the Emily Jordan Foundation, a local charity which supports people with learning disabilities. Over 100 people attended the event at Pub Du Vin and were treated to festive drinks, canapes and live music at the Church Street venue, which also

saw a prize draw for a vintage bottle of champagne and £250 raised.

Partner and Managing Director, Andrew Davies said “It was great to welcome our guests to our annual festive drinks event in Birmingham. Not only was it good to see so many clients in one place, but it was extra special that we were able to promote and raise funds for an amazing charity.”

Contentious Probate Solicitor Joins Painters Law LLP

Painters Law LLP are continuing to expand their legal services and have recently recruited Pam Deo l, a Contentious Probate practitioner, to join the firm.

Pam has recently joined the Dispute Resolution Team as a Contentious Probate practitioner and is a member of the Association of Contentious Trust and Probate Specialists (ACTAPS), the Law Society and the Notaries Society as a Notary Public. Pam is registered with the Certainty Contentious Probate Hub and, until recently, was a panel member for Legal Expenses insurers for contentious probate. Pam was highly recommended in the Legal 500 2020/21 and has been nominated in the West Midlands 550.

Whilst Pam has a broad range of dispute resolution experience, spanning nearly 25 years, she specialises in Will

Pam Deol

Kat Nolan and Clare Lang

Sam Pedley and David lydon

Matthew Barker, Sophie Kelly and Tom Bell

Brian Flint, Tony Milner, Avril Lamont-Webster and Terry Halligan

Keith Bagby, Clare Regan, Altine Elias and Neville Topping

disputes, Inheritance Act claims and contentious trust and probate work. Pam has experience of dealing with very complex estates especially with high value, multiple properties, company shares and international assets. Pam has settled numerous matters by way of negotiations and Mediation.

Pam has recently settled an Inheritance Act claim issued against her clients who were executors of an estate worth £1.4m. Pam has dealt with many claims with estates worth multi million pounds and has many matters in the Birmingham and London High Court. Recently Pam successfully removed a co-executor with an order for costs against him of £25k in London High Court, settled an Inheritance Act claim against an estate worth £10m, and contested an Inheritance Act claim and a proprietary estoppel claim against an estate in London which had international assets.

Pam gets personal satisfaction from achieving successful results for her clients. She takes a pragmatic approach to understand the clients’ legal position, their circumstances and give them practical, cost-effective advice on crucial decisions. Pam grasps an accurate overview of a situation and her experience in Civil Litigation has taken her through a plethora of cases, from fast/multi-track claims to the Court of

Appeal involving property disputes.

forward. I wish them every success in the future.”

Partner leads on manufacturing deal

Corporate

A Bristol-based electrical and manufacturing firm has been acquired by civil engineering company RDCP Infrastructure thanks to a deal led on by Corporate Partner Alison Scott. Avon Combined Electrical Services (ACES) has clients such as the MOD, the NHS and Galliford Try.

Alison advised throughout the deal. She said: “One of the highlights of my job as a corporate lawyer is being able to bring companies together through deals like this. RDCP and ACES have very clearly aligned goals, so they make perfect partners to go

The deal will allow ACES’s already strong reputation in the market to grow, maximising their potential and enhancing their services as part of the RDCP group.

Specialist lawyer from mfg Solicitors receives wide praise in Legal 500

A legal expert from Worcestershire law firm mfg Solicitors has been rated as top ranked lawyer in the 2022 edition of the Legal 500.

Robert Weston, who leads the law firm’s Contentious Trusts and Probate department, has been named in the legal guide’s highest rated Hall of Fame list for his consistently excellent service and advice to clients in complex wills and inheritance cases.

The news comes as the whole department, which includes colleagues Suzanne Lee, Victoria Wall and Andrew Chandler, has also been highlighted again as coveted “Tier One” department – holding that position for the 10th year in a row.

Meanwhile, Mr Chandler also moves up the individual rankings where he has been given Next Generation Partner status.

The positive news for the law firm, which has offices across Worcestershire, Shropshire and in Birmingham, has also seen its Agriculture and Rural Affairs team being ranked again in Tier One after a successful year advising farmers, landowners and rural businesses.

Also singled out for praise this year is Sally Morris, partner and head of the firm’s Employment team, who was named as a “leading individual” for the first time. Partners Sam Pedley and Clare Regan were also highlighted.

From a departmental perspective, other teams rated highly from the firm included its Family, Commercial Property and Commercial Litigation teams.

Andrew Davies, partner and managing

Alison Scott

Andrew Chandler and Robert Weston

director at mfg Solicitors said: “It’s always a proud moment for any of our lawyers or departments to be ranked in the Legal 500, but this really is a special year.

“Robert has been at the top of his specialism for well over a decade and enjoys a formidable reputation on a national scale. To be placed in the guide’s Hall of Fame is a wonderful milestone for him.

“To see so many of our teams and lawyers rated so highly again this year is wonderful, especially as our clients and their feedback plays a key role in those rankings.”

More than 250,000 people were interviewed across the world during the past 12 months to produce the latest Legal 500. Firms and lawyers are recommended on merit.

Timothy, who is a specialist children practitioner, was called in 2003. Rebecca, who is the head of our criminal team, was also called in 2003.

Head of Chambers, Elizabeth Isaacs KC said “I am absolutely thrilled for Tim and Rebecca and congratulate them in taking silk. Both appointments are exceptionally well deserved and a reflection of their hard work and skill.

To have two appointments in the same round of silks demonstrates the outstanding ability of the barristers at St Ives and the very high quality of work that is undertaken.”

The ceremony will take place at Westminster Hall in the spring.

The Evolution of Section 91(14) Orders – Tracy Lakin & Beth Stirling

the evolution of Section 91(14) Orders following the case of A Local Authority v F & Ors [2022] EWFC 127.

To view the article please go to https:// www.stiveschambers.co.uk/content/ uploads/2023/01/The-Evolution-ofSection-9114-Orders.pdf.

Lifetime achievement award for Worcestershire solicitor

One of the county’s most respected solicitors has been honoured with a lifetime achievement award by the Worcestershire Law Society.

Maynard Burton, senior partner at law firm mfg Solicitors, was recognised by the Society for his successful 40-year legal career and the support he has given to countless businesses and individuals across Worcestershire.

We are delighted to announce that Timothy Bowe and Rebecca Wade have both been appointed as King’s Counsel.

Mr Burton became a partner just two years after qualifying as a solicitor in 1983 having trained with the firm from 1981. He ran mfg’s former Bewdley office for 14 years and moved onto the management board in the 1990s. Since then, he has played an instrumental role in the firm’s regional expansion as a senior partner and commercial property specialist, including 17 years as chairman.

Timothy Bowe and Rebecca Wade appointed as King’s Counsel

Tracy Lakin and Beth Stirling consider

The 65-year-old father-of-three from

Rebecca Wade

Tracy Lakin and Beth Stirling

Maynard Burton and Molly Batten from mfg Solicitors (Photography by FT Images)

Timothy Bowe

Stourport was also a co-founder of the Worcestershire Young Lawyers Division and during his career has mentored countless junior solicitors whilst leading thousands of property deals for his clients.

Aside from Mr Burton’s award, the law firm’s successful evening at the Society’s annual awards was capped off with paralegal Molly Batten, who works in the firm’s Agriculture and Rural Affairs Division, winning the Paralegal of the Year title. Miss Batten, 23, graduated in 2020 and is currently studying the Legal Practice Course.

Andrew Davies, partner and managing director at mfg Solicitors said: “Maynard is rightly seen as one of the most inspirational lawyers and leaders in Worcestershire’s legal industry.

“His career has spanned 40 years and during that time he has carved out a reputation not only as someone with the drive and vision which has helped transform our firm, but also someone who cares passionately about his local community, his clients and his colleagues.

“To be recognised by the Worcestershire Law Society is tremendous news for Maynard and his family who have been with him every step of the way. He is a man who has the highest, most impeccable standards.

“We are also delighted for Molly and it is fitting she received her award alongside Maynard. She is without a doubt a true star of the future who impresses time and time again. She fully deserves her award and all the recognition she has received.”

Maynard Burton added: “It really is very gratifying to be recognised by the Society this year and feel very privileged in the twilight of my career.’’

“Whilst it is a really special moment to win the award, I believe it is something everyone at the firm should be proud of. Every single member of staff, past and present, has made our firm a special place to be.”

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.

Law firm Trainee becomes fully qualified Solicitor.

awarded Trainee Solicitor of the Year at the Worcestershire Law Society Awards. Moving forward in her new role as Solicitor, Zahida now runs her own caseload of fast track files.

Zahida Shah, Redditch-based Silverback Law's Trainee Solicitor, had cause to celebrate recently after successfully completing her final exams and becoming a fully qualified Solicitor.

Zahida joined the firm as a Paralegal in 2019 having completed her LPC (with Distinction) and was just looking for a ‘foot in the door’ with a commercial law firm. Since walking through that door, she's blown them away with her methodical, meticulous approach and absolute dedication to tasks. This gained her a huge amount of respect from colleagues, past and present, that have worked with her during her time at Silverback.

Her dream was to ultimately qualify as a lawyer and, as she had demonstrated the hard work and commitment that was needed, at the beginning of 2021 she was awarded a Training Contract.

Since that day, she’s worked tirelessly, juggling studies with her job and personal life. She’s shown great strength and determination, even when faced with personal and professional challenges.

Her hard work was recognised by her peers in September of last year when she was

Cheese & Wine Masterclass with The Dairy Made

On 10th November 2022, the Worcestershire Law Society organised a Cheese & Wine Masterclass courtesy of Lee-Anna Rennie-Johnson (aka “The Dairy Made”). This took place at The Royal Porcelain Works in Worcester and was a fabulous evening. We will certainly be making this an annual event! A huge thank you to our sponsors, Verify 365 and also Kathy Leather of The Royal Porcelain Works. It was a night of wonderful food, drink and company!

Zahida Shah

Worcestershire Law Society President, Andrew Chandler and Mevludin Dzihic of Verify 365

The Dairy Made

Young adults and consent to a DNA test

nature and implications of the proposed treatment. A subset of this principle is the Fraser guidelines which specifically relate to welfare advice for under 16’s.

child, are authorised to do so. It is also important that the consent is given on the understanding that the nature and possible consequences of the test are understood.

Across the world, the ability of children or indeed young adults to make decisions about issues concerning themselves is full of dilemma. Under UK law, the line between childhood and adult hood is 18 years of age1; the age of majority. This means for example, that an individual can of their own volition, vote, enter contracts (credit cards, take out loans) buy tobacco or get a tattoo. The law then allows for capacities at each age from 10 through 17, though in this article with regard to DNA testing, we will single out age 16, as now armed with a National Insurance number, minors may join the Army, get married, drink alcohol in a restaurant, get a full time job and have sexual intercourse. This is perhaps appropriate for most in todays’ UK society.

When it comes to medical treatment, then the law is very clear that the age of consent to a procedure is 18 and after this age, individuals have as many rights as adults. Under some circumstances, 16 year old individuals can make medical decisions without consent of their parents and at younger ages than that, the degree of independent consent is reliant on their competence to understand the procedure – age alone is a not a sufficient criterion. Specifically, the test of these criteria is the Gillick test2 which relates to a child under 16 receiving contraceptive advice without her mother’s consent. Over time this has been used by the medical fraternity to gain consent from under 16s, provided they can demonstrate understanding of the

When considering a DNA test to determine a biological relationship (such as a paternity test), then it is important to remember that a human identity or paternity test is not a medical matter; it is quite different to other types of genetic test which are used for example, for disease diagnosis. The relevant legislation is the Human Tissue Act 1984 and Human Tissue (Scotland) Act 20063, which as an aside to its intention to clamp down on the unauthorised use of human tissue as revealed in the Bristol Royal Infirmary enquiry4, has captured the need for consent for the analysis of samples for a DNA test and which are intended for human identity testing. The Department of Health has produced helpful guidance5 and a good practice guide for companies like our own.

In addition, the Ministry of Justice operates an accreditation system for bodies “that may carry out parentage tests directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969”. This list is reconsidered every year and requires DNA testing companies to hold the key accreditation for calibration and testing laboratories, ISO/IEC 17025. We are pleased to say that we have been on “the list” for more than 14 years.

With regard to consent, then the first principle derives from the established laws of consent and the second from the Human Tissue Act 2004, where consent is required for possession of material from a human body that contains human cells (a buccal sample) with the intention of analysing the DNA. We must be satisfied that whoever is providing the consent for a DNA test is authorised to do so. We for example, take steps to ascertain the basis for parental responsibility and as the DNA testing organisation providing the test, are satisfied that those consenting to the taking of a sample from the

Parental Responsibility refers to "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property"6. In real terms, this means having input into substantial matters affecting a child’s well-being, such as education, religion, medical treatments and appointing a guardian as well as having input with regards to holidays and extended stays outside the family home. Importantly, this also relates to legal proceedings involving the child and the registering/changing of a child’s name on a birth certificate. De facto, this applies to the non-medical matter of human identity testing using DNA technology, commonly known as for example, a paternity, sibling or indeed a grand-parentage test.

So who has Parental Responsibility for a child? Well firstly, the mother always (and automatically) has Parental Responsibility. Intuitively, we might think this named individual would necessarily be the biological mother (the individual who gave birth to the child) and this is generally the case. Exceptions occur in the case of surrogacy where the surrogate mother will have Parental Responsibility until it is relinquished with a Parental Order. Interestingly, if a surrogate mother is married, their partner will also have Parental Responsibility for the child.

There are various additional ways that a father can gain Parental Responsibility over a child, these are: a) entering marriage or civil partnership with the mother, b) obtaining a Parental Responsibility order from a court, c) using a Child Arrangement Order, being named as a resident parent, d) having a Residence Order in place (prior to 22nd April 2014) and e) entering a Parental Responsibility Agreement with the mother. If there has been a marriage/civil partnership and then a divorce/dissolution, then the Parental Responsibility rights are retained.

Dr Neil Sullivan

Automatic Parental Responsibility is not conferred on unmarried biological fathers, unmarried partners (male or female), grandparents, other biological relatives or a step-father/step-mother. Unmarried/ non civil partnership fathers who (re-) register their names on a birth certificate after 1st December 2003 can gain Parental Responsibility.

We always ask for the mother’s consent to a DNA test if the child is under 16 and encourage her to participate in the test by giving a DNA sample. Our most common question is: “Why do you need that? I know I am the mum.” Well, we are each made up of half of the mothers DNA and half of the fathers – though until we test it, we don’t know which half ! By determining which portion comes from the mum, we can then be sure which

DNA relates to the father and this greatly improves the statistics of an inclusion, i.e. that the man is in fact the biological father of the child.

If you have a case requiring a DNA test to establish parentage or would just like some advice on how to establish a human relationship using DNA, then please contact us, we would be pleased to help.

About the author:

Dr Neil Sullivan, BSc, MBA (DIC), LLM, PhD is General Manager of Complement Genomics Ltd (trading as Dadcheck®gold).

Complement Genomics Ltd (trading as Dadcheck®) is accredited by the Ministry of Justice as a body that may carry out parentage tests directed by the civil courts in England and Wales under section 20 of

the Family Law Reform Act 1969.

Please see: https://dadcheckgold.com Tel: 0191 543 6334

e-mail: sales@dadcheckgold.com

Citations

1 Family Law Reform Act 1969

2 Gillick vs West Norfolk and Wisbech AHA and DHSS [1985] 3 WLR (HL)

3 https://www.legislation.gov.uk/ ukpga/2004/30/contents; https://www. legislation.gov.uk/asp/2006/4/contents

4 http://www.bristol-inquiry.org.uk/ interim_report/toc.htm

5 https://www.Wales.nhs.uk/ documents/DH_082624.pdf

6 The Children Act 1989, s3(1) www.worcestershirelawsociety.com

Charities received the highest number of bequests in 2022

New figures released today show that 2022 was another strong year for charitable gifts in wills in England & Wales.

In 2022, Smee & Ford identified 36,992 charitable estates out of a total of 231,582 estates processed that included a will; meaning that one in six wills processed included a gift to charity.

The total value of charitable estates exceeded the prediction of £20bn in Smee and Ford’s September update, finishing on £21.3bn. And the number of individual bequests within charitable estates granted probate in 2022 was also the highest number they have ever recorded, finishing on 123,298.*

“It is encouraging to see that 2022 was another strong year for legacy income and that the number of charitable bequests recorded in wills has reached a new record.”

The value of legacies continued to be significant for charities in 2022, with 31% of legacy income coming from bequests worth over £500k. A further 22% came from bequests valued between £100£250k, meaning over half of all legacy income in 2022 came from high value bequests worth over £100k.

At the time of writing, not all organisations have yet reported their final accounts to the Charity Commission, so the final legacy income figure for 2022 is not yet confirmed, but as a conservative estimate Smee & Ford predict it may sit at around £3.5bn.

“In today’s volatile economic environment, it’s hugely encouraging that gifts in Wills continue to be such a significant and vital source of income for UK charities. More and more fundraisers tell us that legacy income is what’s enabling them to continue delivering services and, perhaps what’s most exciting, we’re seeing growing recognition among senior management of the importance of shoring up legacy

fundraising teams and investment to protect their charities’ futures.”

- Allan Freeman, Chair of Remember A Charity

The full and final statistics will be shared in Smee & Ford’s annual Legacy Trends report, released later this year. You can register at https://smeeandford.com/ legacy-trends-2023-register-interest/ to request a copy as soon as it is available.

*Please note, these statistics relate to England and Wales only.

- Polly Avgherinos, Managing Director at Smee & Ford

Allan Freeman

2022 in Review: Expert Evidence under scrutiny

3. Take time to consider any unconscious biases which may impact on your opinion

When you are assessing a claimant, visiting a site, considering the evidence, are you unconsciously projecting your own biases into the case? Take time to find out about unconscious bias (https://www. ewi.org.uk/News/ewi-in-conversationwith-frederico-singarajah-unconciousbias) and how you can avoid it.

4. Make clear the substance of your instructions

(TCC) are both salutary reminders of what can happen if you do not heed the advice.

8. Be open – and get any communication with other parties in writing.

Transparency and accountability are key: whatever is done needs to be done overtly.

9. Make sure you assist the court

As the year draws to a close, I can’t help but think that it has been an interesting year for Expert Witnesses. There have been several high-profile cases which have reflected the best and worst in Expert Evidence. But one thing seems clear, the number of judgments which mention Expert Witnesses and their conduct is definitely on the rise. And unfortunately, the negative comments in judgments outweigh the positives.

But this is to be expected. It is normally when things go wrong that the Judge will comment on the conduct of the expert. And whilst we have highlighted many a judgment where this is the case, I am choosing to be positive and focus on my top ten takeaways for the year.

1. Always maintain impartiality

To borrow a line from a well-known Christmas song, “although it’s been said many times, many ways” ensure you always maintain your independence. If you are unsure whether you are straying, ask yourself – would I have the same opinion if I was instructed by the other side. Nothing harms your credibility more than being partisan.

2. Be credible and declare possible conflicts of interest

And on that note, be aware that the opposing side may try to attack your credibility so don’t give them any ammunition with which to take a shot. If you think there is a possible conflict of interest, raise this with your instructing party immediately and take advice.

It was nice to see a judge rejecting one such claim where counsel attacked an expert’s credibility.(https://www.ewi.org. uk/News/attack-on-experts-credibilityrejected).

I’ve been taking a look at the assessments of reports undertaken by the Membership Committee and there are two areas that seem to cause more issues than others. The first is around instructions. Remember that you do need to make clear the instructions you have received from your instructing party. This is also a good method for checking to make sure you have answered all the queries asked of you.

5. Make sure you offer a range of opinion and, if you can’t, state why The second area that seems to get marked down is the range of opinion with applicants not providing a range of opinion and not stating why they cannot give a range of opinion. Sometimes it is right that you cannot offer a range of opinion, but you should be stating why this is the case.

Spend the time to make sure you are using the most up to date declarations. Doing so enables you to retain credibility. The wrong one could undermine you in court during cross examination.

If you are in any doubt, you can access supporting guidance from our knowledge hub at: https://www.ewi.org.uk/ Knowledge-Hub

7. Remember that the Joint Statement is the Expert’s write up of their discussion Don’t be tempted to invite your instructing party or counsel to look at or make suggestions on the draft of the Joint Statement. This is your statement to assist the court in narrowing down the issues that are still in contention.

And if they ask to be involved, stay strong and tell them to step back.

Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB) and Gary Pickett v David Balkind [2022] EWHC 2226

Remember that you are helping the court understand the issues. In his keynote speech at our conference this year, Lord Hamblen suggested the best way to achieve this was through clarity, structure, reasoning, and by building trust and confidence.

Some nice examples of where experts have done this include the following:

“He gave his evidence in a forthright and measured manner. He answered the questions put to him clearly accepting the limits of his knowledge in relation to certain matters. He made concessions in relation to certain items such as betterment to the boiler installation and the extent of the alleged furniture damage. I think that overall Mr. Lane was seeking to assist the Court and that he well understood that he had an independent role to perform.”

- Coldunell Limited V Hotel Management International Ltd

And congratulations to EWI Member, Jill Ferrie, who was mentioned in a recent judgment as being “a balanced and helpful expert”.

10. Keep up to date with the latest developments in Expert Evidence And finally... Whilst you are all (I am sure) keeping up to date with the latest developments in your areas of expertise, make sure you also take time to consider the latest case updates in Expert Evidence. At the least keep an eye on our monthly e-newsletter to identify key things you need to be aware of. But don’t forget that EWI Members now have access to a wide range of older (but still highly relevant) pre-recorded webinars.

Keeping up to date with your professional development is an essential part of maintaining your credibility as an Expert Witness.

So with that I wish you every success as we head into 2023.

Simon Berney-Edwards

Forensic accountants in matrimonial cases

I receive many requests for help in family cases, often several times a week, typically from the wife who considers that her husband is not making full and correct disclosure of his financial affairs. What am I able to do to help them? This is a personal note setting out my understanding of the position, and I provide it here so as to avoid the need to give the same explanation repeatedly to those many unfortunate ladies.

Typically, a lady does a Google search where my name comes well up on page one. She looks at my website, views the videos, reads the war stories, and concludes that I am a helpful character with a wealth of experience (I am, I am!) who can help them to find the husband’s hidden assets or the lies in his disclosure.

In the old days, that was certainly the case, and I have had some stunning successes, as may be seen in my case studies - https:// chrismakin.co.uk/case-study/matrimonial/. But these days it’s different. Except in the multi-million pound cases seen in the national press, or where a party is so blatantly dishonest that the court recognises the need for an investigation – and this is very rare – the court will only approve the appointment of a forensic accountant to act as a Single Joint Expert (SJE), who acts for both spouses, but with an overriding duty to the court.

This works well where the main function of that expert is to value the business which one party will be taking out of the marriage on a clean break (see Case 3 in my matrimonial case studies –“Divorce the spouses, but don’t divorce the companies”) - I have done hundreds of such valuations – or where an expert is required to opine on the ability of one self-employed spouse to pay maintenance to the other. But where there is serious doubt about a spouse’s disclosure, but not egregious enough for the court to recognise the need for an investigation by a forensic accountant, two main difficulties arise.

The first is that if the wife or her lawyer thinks that I would be a suitable SJE and puts my name to the other side, I would be typecast as the wife’s man, and the husband would want his own man. Result: deadlock, which can be resolved only by one side or the other giving in, or by both sides putting their expert’s CV before the court for the judge to decide who shall be the SJE. And that leads to delay and expense.

The point is that an expert can produce a report and give evidence at a hearing only with the court’s permission.

There is an alternative: the forensic accountant can act as expert adviser. He is not on the court record, but works in the background, providing assistance to the lady’s lawyers. He cannot appear at court (except in the background, perhaps passing notes to the barrister), and there is no prospect of the husband being ordered to pay any part of that accountant’s fees. And the investigating accountant can use only the evidence produced, which may be limited.

So to conclude, if a business valuation is required for a clean break, I can act as SJE as I have done many, many times before. And within limitations, I can act as expert adviser. But for me to act on the record as expert for one party, the other spouse’s shortcomings in disclosure would have to be egregious (outstandingly bad or shocking) and if that situation is suspected, I would recommend that the party concerned should first speak to their lawyers, not to me, about whether the court might appoint a party expert acting just for that side.

I remind readers that I offer an initial review of any case without obligation (see “How long’s a piece of string” on my fees page at https://chrismakin.co.uk/fees-and-gdpr/), but that review should be done only when the lawyer considers there is a chance of the court agreeing to have a party expert.

Of course, if a straightforward business valuation is needed, I’m your man!

Biog: Chris Makin has practised as a forensic accountant and expert witness for 30 years, latterly as Head of Litigation Support at a national firm. He has given expert evidence about 100 times. He also performs expert determinations.

Chris is a fellow of the Institute of Chartered Accountants where he has served on the Forensic Committee, and as an ethical counsellor; he is a fellow of the Chartered Management Institute, a fellow of the Academy of Experts where he serves on the Investigations Committee, and a mediator accredited by the Chartered Arbitrators.

He practises as a mediator, from his home in West Yorkshire and his rooms at 3 Gray’s Inn Square, London WC1R 5AH, telephone 020 7430 0333. He has mediated 100+ cases so far, on a huge range of subjects, with a settlement rate to date of 80%. For more see his website with videos:

www.chrismakin.co.uk

chris@chrismakin.co.uk

Chris Makin