SNELS - In Touch Magazine summer 2015 by EPC Studio

In Touch The Official Magazine of Suffolk & North Essex Law Society

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Contents

Issue 6 Summer 2015

A Message From The President

From the Council Chamber

Lexcel England and Wales v6

Junior Law Division Law Society Consultation – The legal ombudsman case fee and funding

Law Society’s Eastern Regional Review

Ipswich Legal Walk

Managing Stress and Worry

Guideline Hourly Rates

Veyo: Efficient Conveyancing For All

The “Guidance for the Instruction of Experts in Civil Claims 2014”

Suffolk Law Advice Centre

The appearance of advertising copy in this magazine does not constitute an endorsement of the individual advertisers by the Suffolk and North Essex Law Society.

AGM

Thursday, 2nd July 2015 Speaker: Robert Bourns Deputy Vice-President of the Law Society 4.30 p.m. Wine & canapés 5.00 p.m. Meeting commences Formal invitation and Agenda will be sent to Members by e-mail.

to be hosted at The Marriage Hall at Gotelee Solicitors 31 - 41 Elm Street Ipswich, IP1 2AY

RSVP to Admin. Sec. by e-mail to snels@topcopysec.co.uk Attendance will qualify for 0.5 CPD point

Suﬀolk & North Essex Law Society

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A Message From Our President Officers of the Society

Vice President Nigel Farthing Birketts, Ipswich Tel: 01473 232300 Fax: 01473 230524 email: nigel-farthing@birketts.co.uk Deputy Vice President & /PRO/PLO Fiona Bailey Haywards Solicitors, Stowmarket Tel. 01449 613631, Fax. 01449 613851 E-mail fiona.bailey@haywards-solicitors.co.uk Honorary Secretary Neil Grigg Greene & Greene, Bury St.Edmunds Tel: 01284 717422 Fax: 01284 705739 email: neilgrigg@greene-greene.com Honorary Treasurer Richard Foyster Ashton KCJ, Felixstowe Tel: 01394 277188 Fax: 01394 670726 email: richard.foyster@ashtonkcj.co.uk Honorary Council Member Roger Buston Asher Prior Bates, Colchester Tel: 01206 768331 Fax: 08700 543630 email: rbuston@apblaw.co.uk Education & Training Officer Lisa Collins Birkett Long, Chelmsford Tel: 01245 453846 Fax: 01206 711334 Email: lisa.collins@birkettlong.co.uk Administrative Secretary Christine Kettle Whitegate Cottage Coddenham Green Ipswich IP6 9UN Tel/Fax: 01449760731 email: snels@topcopysec.co.uk

Suffolk & North Essex Law Society

President Philip Hoddell Birkett Long, Colchester Tel: 01206 217320 Fax: 01206 711348 email: philip.hoddell@birkettlong.co.uk

This is my last President’s piece, and the year seems to have flown by. Highlights of my Presidential year have definitely included representing the Society at the Essex Justice Service, recently attending the President and Secretaries conference at Chancery Lane, and the highly successful dinner at the Moot Hall in Colchester last November. Behind the scenes though the SNELS Council has continued to do an enormous amount of work; organising training courses, representing local solicitors at Chancery Lane and ensuring that the voice of Suffolk and North Essex is always heard. I would very much like to thank all of the officers of the Council for their sterling work this year and to wish my successor, Nigel Farthing, every possible success for his year in the hot seat.

I could not let the year end without mentioning one of the themes that I began my presidential year with. My Gazette this week contained details of yet another ABS which is going to transform the way in which law is practised up and down the country. It indicates that it has learned from the mistakes made by Quality Solicitors and Co-op Legal but is looking to acquire sixty High Street law firms to provide standard legal services. I am not necessarily opposed to the idea of ABS – my own practice has valued colleagues who are Partners but not Lawyers – but I continue to struggle with the concept that a centrally based organisation can layer in extra costs but still provide a better service at a local level. Provided we rise to the challenge of modern practice I simply do not accept that the service we provide to our clients can be bettered by this type of organisation. But – there is always a but – the SRA has kindly started reminding us all that the disciplinary tribunal will bring proceedings if we do not follow the correct procedures once we do have enough and decide to close our practices down! The main issue for retiring Lawyers is of course run off insurance which can be financially crippling and prevent some Solicitors from ever being able to retire. Now more than ever it is vital to have a proper exit strategy and I would suggest that means looking to other local firms to see what opportunities there may be.

Philip Hoddell,

President Suffolk & North Essex Law Society

Dates for the Diary Tuesday, 30th June 2015

Legal Aid Walk – starting at 5.30 p.m. in Christchurch Park, Ipswich.

Thursday, 2nd July 2015

SNELS AGM - at The Marriage Hall, Gotelee Solicitors, Ipswich

Friday, 20th November 2015

President’s Annual Dinner at The Barrandov Opera, Needham Market

Future Council Meetings for 2015: 21st September 2015 16th November 2015

If you would like any specific items discussed by your Council, please notify our Admin. Sec. (snels@topcopysec.co.uk) to ensure they are included on the agenda.

www.snels.org.uk

From the Council Chamber

SNELS Council Member Report Chancery Lane May 2015

CM Activity Attended TLS Council 24th/25th March 2015 and19th/20th May 2015. Attended Property Section Executive 5th March 2015. The next TLS Property Section Executive Committee Meeting is on 26th May 2015. Attended Council Membership Committee (CMC) 30th March 2015

Summary Elections and Appointments National Following the recent National Election the new Lord Chancellor and Secretary of State for Justice is The Rt. Hon. Michael Gove MP, replacing The Rt. Hon. Chris Grayling M.P.

TLS ( Members) Following the recent TLS Elections the new DVP is Joe Egan. Joe is a Litigator and is senior partner of Joe Egan Solicitors in Liverpool. Joe has already been invited, and has accepted, to speak as our guest speaker for the SNELS AGM in 2016 ( currently scheduled for Thursday, 30th June 2016). He is a passionate supporter of the future of TLS – particularly at local level.

TLS (Officers) : Executive Appointments

Brand solicitor. This will consider what it means to be a solicitor. Including how to enhance the brand of solicitor, ethics and our role as officers of the court. Regulatory position. Exploring our options for the future of legal services regulation and in particular, issues in relation to funding. Explore our relationship with the SRA, LSB and other regulators. External relationships and influencing. It will be helpful to further explore our role and our relationships with the profession, public and other key stakeholders. It will also look at the principles which bind the profession together and how we promote those, including the rule of law, access to justice and human rights. All the work will be underpinned by financial modelling

Executive Director for External Affairs : Deborah Oliver

Criminal Legal Aid

(Interim) General Counsel: Anthony Brooks

TLS has and will continue to work to support the profession in the tender process. The Leveson criminal justice efficiency report adopts many of our suggestions and shares many of our concerns for improving criminal justice efficiency. TLS is working with CPS, HMCTS and others to implement the review, ensuring that the views of solicitors are taken into account.

(Interim) Executive Director (Delivery & Performance): Paul Hemsley Paul Hemsley will, inter alia, be helping with coordinating TLS work streams to deliver the 2020 strategy noted below. These appointments are part of a re-organisation of the Law Society’s senior executive team

TLS Strategy development ATLS working group made up of Office Holders, Board Chairs and members of Council has been briefed to research the delivery of a revised TLS strategy to 2020 directed by TLS CEO Catherine Dixon. CMs will further take part in a series of workshops to inform and underpin that process.The scope and terms of reference for the strategy development project are being prepared and are in the process of being discussed by the working group.The strategy will be informed by a series of work streams:Members. This will explore TLS membership, define our members’ interests in different parts of the profession and what it means to put membership at the heart of what we do. We will also explore what services we should (and should not) be providing to our members. Future of legal services. We recognise that the legal market is changing significantly and that it will be important to explore what the opportunities and challenges are for the Law Society and our members in a changing market including the scope to provide innovative legal services. Education and standards. Our role in raising professional standards and differentiating our members by doing so. We also have a role

in education and it will be helpful to explore what this is and where there are opportunities to develop this role over and above what is currently provided.

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Veyo (Legal Practice Technologies) (LPT) The joint venture company responsible for the development of Veyo, the web conveyancing portal, has announced the price for usage. The price has been confirmed as £20.00 per transaction and £50.00 per user licensee p.a.

Court Fees The SI to increase court fees was passed by the Commons on 23rd February, and by the Lords on 3rd March. The new fees came into effect from 9 March. The TLS coalition of eight legal representative bodies, (The Bar Council; CILEx; Forum of Insurance Lawyers (FOIL); Association of Personal Injury Lawyers (APIL); Motor Accident Solicitors Society (MASS); Chancery Bar Association; Action Against Medical Accidents (AvMA); Commercial Bar Association (COMBAR)), sent a joint Pre Action Protocol (PAP) letter to the MoJ, initiating legal action to challenge the increase in court fees. A wider coalition, (with the addition of the Professional Negligence Bar Association (PNBA); and R3 (Association of Business Recovery Professionals), has issued a briefing to MPs and Peers.

Legal Services Regulation SRA: Separate business rule

LSB Strategic Plan 2015-18 and Business Plan 2015/16

Legal Ombudsman ( LeO) Strategy and Business Plan

TLS response can be found at :

http://www.lawsociety.org.uk/Policy-campaigns/Consultationresponses/LSB-draft-strategic-business-plans/

http://www.lawsociety.org.uk/Policy-campaigns/Consultationresponses/Legal-ombudsman-strategy/

In summary TLS response highlighted:

SRA will be holding a number of roadshows with Local Law Societies. TLS Representatives will be attending these wherever possible.

Unnecessary regulation costs for firms both financially and in terms of lost opportunities. Even though the cost of the LSB is relatively small, it should consider how far all of the work proposed is essential and whether some of it could be stopped or delayed to reduce that cost still further.

Suffolk & North Essex Law Society

http://www.lawsociety.org/Policy-campaigns/Consultationresponses/Separate-business-rule%3chttp:/www.lawsociety.org/ Policy-

In considering issues around transparency and the provision of information to consumers, LSB needs to be alert to the extent this will add cost to the regulated community which do not apply to the unregulated community and may lead to a move away from regulation.

TLS response can be found at :

Roger Buston - TLS Council Member SNELS, Asher Prior Bates Office

: 01206 768331

: buston@apblaw.co.uk

LSB could do more to monitor the performance and value for money of the regulatory arms.

Mobile : 07770 305977

TLS recognises that there are concerns around the unregulated sector but we feel that, unless the LSB is considering whether individual areas of law should be reserved, it should be cautious about undertaking major work in respect of this sector unless this is funded by bodies other than the approved regulators.

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Collectively, our forensic experts and accident investigators have many years’ experience within the Government forensic laboratories, as well as Police and private practice. This knowledge enables us to provide reliable and independent forensic science services, as well as acting as Expert Witnesses. A sign of the esteem in which Emmersons experts are held is evidenced by the number of commissions received to re-examine cases previously examined by the Crown’s experts. We review this work and report upon it.

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Suﬀolk & North Essex Law Society

Lexcel England and Wales v6 With mandatory accreditation from 1 May 2015 against version 6 of the Lexcel Standard for practices in England and Wales, Bryn Hughes (Lead Product Manager – Accreditations) at the Law Society, summarises the changes that have been made. Why was the review of Lexcel necessary?

Lexcel was launched 15 years ago in 1998 and was designed specifically for law firms and in-house departments. Version five of the Standard was in launched in 2010. A formal product review takes place every three years, which is why work started in 2014. The four objectives of the review were to: Objective 1 Produce segmented versions of the Standard to better reflect the needs of private practices and in-house legal departments. Objective 2 Review existing and add new requirements. Provide more guidance for practices to understand and implement requirements and introduce mandatory training. Objective 3 Achieve greater alignment between Lexcel, CQS and WIQS. Objective 4 Review branding and increase market awareness.

Bryn Hughes Lead Product Manager - Accreditations bryn.hughes@lawsociety.org.uk

Extensive guidance notes for Lexcel England and Wales have also been created and can be downloaded from the Law Society’s website. These are free of charge and provide specific direction to help understand and implement requirements and are segmented by practice size (1 fee earner, 2 - 85 fee earners and 86+ fee earners) and in-house teams. Objective 2 – Changes made to requirements As a result of the process to review content of the Standard for England and Wales (v6), requirements have been removed, amended and new ones added. The main changes are summarised here. Full details of the comparison of requirements between versions 5 and 6, are summarised in a single document, which can be downloaded from the Law Society’s website free of charge.

Deleted requirements Lexcel v5 Section

Key changes made in v6

1 - Structures and policies

•

Objective 5 Review the partner-based pricing model •

What are the main changes between v5 and v6?

Reviewing and updating Lexcel was a collaborative, ten month process that involved quantitative and qualitative research with accredited practices, Lexcel assessors and consultants. This section summarises the main changes made to achieve each of the objectives. Objective 1 – Segmented versions of the Standard There are now two versions of Lexcel: one for England and Wales and another for practices in international jurisdictions.

4 - Information management •

Lexcel England and Wales – The updated, version 6 of the Standard is for legal practices and in-house legal departments in England and Wales. There are two versions of the Standard for each of these practice types. Whilst they are based on the same requirements, adapted terminology recognises the different operational model and implementation of requirements between legal practices and in-house teams. Lexcel International - This is the previous version 5 of Lexcel that has been re-named. It is the standard for practices in foreign jurisdictions and practices in England and Wales that have independent offices overseas.

www.snels.org.uk

•

6 - Risk management

•

Removal of requirement 1.2 - for a separate risk management policy to address strategic, operational and regulatory risks.

All other requirements have been integrated into other sections. Section 1 from version 5 has been removed altogether. Version 6 contains seven sections, rather than eight.

Removal of requirement 4.6 - a procedure for legal research and updating and sharing of legal professional information.

Removal of requirement 4.7 relating to the maintenance of an office manual. This is now incorporated into an amended requirement (3.6) in information management.

Removal of requirement 6.1 the designation of an overall risk manager.

New and amended requirements

A glossary of terms has been added to clearly define the meaning of terms used throughout the Standard. The glossary appears after the contents page and defined terms are emboldened throughout the Standard.

Key changes made in v6

Requirement number given in brackets

1 - Structure and strategy •

Requirements for business planning have been updated to reflect a more comprehensive approach to strategic planning (1.2). Plans should now set objectives for 12 months, including definition of services offered, client groups served, how services will be delivered and marketed. Risk evaluation should be undertaken on objectives with regular reporting on performance.

2 - Financial management •

Procedures added for the authorisation of financial transactions and quarterly analysis of cash flow and cash flow forecast.

•

Clarification that the corporate social responsibility policy is optional (1.4)

3 - Information management • New policy added (3.1) for information management and security, including: procedures for the security, retention and disposal of information, management of user accounts and configuration of network devices, software usage and detection of malicious software and training of personnel on information security. •

Amended requirement for practices to have a central register for all plans, policies and procedures in the Lexcel Standard, a named person responsible for each and a procedure to review them (3.6).

4 - People management •

Equality and diversity policy added (4.2), with amendments to include the collation of diversity data and procedures for reasonable adjustments for personnel. Moved from the deleted section 1 of v5.

• • •

Amendment that all personnel must have a learning and development plan (4.3).

Amendment to procedures for recruitment and selection to include progression (4.5). New policies added for whistleblowing (4.9) and flexible working (4.10).

Requirement number given in brackets

5 - Risk management • New risk management policy added that includes a compliance plan, risk register and (5.1). • Amended requirement for an outsourcing policy (5.2) moved from the deleted section 1 of v5.

• Amendment for file reviews procedure to explain the file selection criteria and explain the frequency of reviews (5.11). • Amendment to operational risk to be the responsibility of the supervisor, rather than a risk manager (5.12). • New policies added for anti money laundering legislation (5.13), property and mortgage fraud (5.14) and anti-bribery (5.15).

• New requirement for annual analysis of risk assessment data, including matters notified to the COLP/COFA, breaches, conflicts of interest (5.16). 6 - Client care • Amendment to the client care policy for the provision of reasonable adjustments for clients (6.1). • Amendments to information communicated to clients, to remove mandatory requirement to establish the client’s requirements and objectives and cost benefit analyses (6.2).

• Amendment to the complaints handling procedure to define the person with overall responsibility for complaints and the associated procedure (6.5). 7 - File and case management • Amendments to matter closing procedures to remove mandatory requirement to always report to the client on the outcome and explain any further actions to be taken (7.6).

Mandatory training

A annual mandatory training course has been introduced for accredited practices. The objective is to help ensure that all practices know and understand requirements and how to implement them. Training may focus on interpreting specific requirements and guidelines contained in the Lexcel Standard or provide best practice training in areas related to the Standard, such as client feedback programmes, strategy and business planning, assessing risk on new matters.

www.snels.org.uk

Suffolk & North Essex Law Society

Lexcel v6 Section

Lexcel v6 Section Key changes made in v6

Training must be completed within six months of obtaining Lexcel accreditation or re-accreditation. A minimum score must be achieved in order to pass the mandatory training.

Objective 3 – Greater alignment between Lexcel, CQS and WIQS Many practices are accredited against more than one of the Law Society’s ‘entity’ accreditations: Lexcel, Conveyancing Quality Standard (CQS) and Wills and Inheritance Quality Scheme (WIQS). During the research to review Lexcel, practices asked if we could find a way to improve on the application and assessment processes that asked for the same information for each of these accreditations. In response to this challenge, we’ve introduced Core Practice Management Standards (CPMS). These identify the requirements that are common to Lexcel, WIQS and CQS and help to assess how much additional preparation is required if practices wish to be accredited against one or more of these schemes. A traffic light colour coding system has been used:

Overlap Status

Requirements

Green

Identical requirement. No further work is required to achieve this requirement if a practice is currently accredited against one of the Law Society’s entity accreditation schemes (Lexcel, WIQS, CQS).

Amber

Some differences exist between this requirement for Lexcel, CQS and WIQS. Further work may be required to satisfy specific requirements for each scheme.

Red

There is no overlap between this requirement for Lexcel, CQS and WIQS. Further work will be required to satisfy the specific requirements for each scheme.

The CPMS has been summarised in a single document and can be downloaded from the Law Society’s website free of charge.

Objective 4 – Reviewing branding and increasing market awareness To help more clearly communicate what Lexcel is - especially to buyers of legal services, the description has been changed to “Excellence in legal practice management and client care”. This will feature on the Standard and all materials (online and offline) produced by the Law Society. Unfortunately, this descriptor is too long to incorporate into the logo, so a shorter description of “Legal Practice Quality Mark” is being used. This replaces “Practice Management Standard”. Accredited practices have been informed about how to download the updated logo . To help minimise the administrative burden and cost to update materials to the new logo, the old logo can be used until 31 October 2015. We recognise that we haven’t provided as much support to increase the visibility of Lexcel in the market. With the new logo and description in place, a digital strategy is now in place and we’re investing in marketing programs to increase awareness of Lexcel amongst potential clients searching online. Firstly, the Law Society’s Find a Solicitor (FAS) website is a key channel to put Lexcel accredited firms in front of potential clients at the point of their online search/validation to help influence purchase decisions. Re-launched in March 2014, the new site:

www.snels.org.uk

• •

Has a more user-friendly visual design and interface that is easier for consumers to use

Clearly lists Lexcel accredited practices in search results pages in ‘quick search’

• Lists accreditations individuals •

held

organisations

and

Generates leads for members (visitors can submit an enquiry via an organisation’s profile page)

Paid search campaigns are being run with Google and Bing that either send visitors to look at profiles of accredited practices in FAS or to an information page that provides more information about Lexcel. We are currently testing a number of different approaches to identify which are most effective, these include campaigns targeted to towns, Lexcel and Law Society brands and text and image-based adverts.

Objective 5 – Review the partner-based pricing model Feedback from the consultation indicated that the partner-based pricing model no longer reflects the market’s move towards different licensed entities, such as Alternative Business Structures, which include fewer partners. The consensus was to move to a single pricing model based on the number of fee earners (partners, admitted and non-admitted fee-earners). The new pricing model, effective from 1 May 2015 has five price bands: 1.

Sole practitioner

16 - 40 fee earners

2. 4. 5.

2 - 15 fee earners

41 - 85 fee earners 85+ fee earners

Why should you consider Lexcel? How does it benefit practices? With ever-increasing competitive forces and client demands, it’s vital to manage the quality and delivery of legal services. Designed specifically for the legal sector, Lexcel can help practices develop and maintain policies and procedures to: • Address and effectively manage risks in delivering advice • •

Achieve practice-wide quality management systems and processes Deliver consistent levels of client service

But don’t just take our word for it. As part of our research to update the Standard, we asked accredited practices to describe the benefits that they had achieved as a result of Lexcel accreditation. The top five benefits achieved are: 1.

Improved compliance with regulatory requirements

A more competitive PII premium

Improved and more consistent client service levels

2. Reduced operational risks in managing and delivering advice 4.

Increased likelihood for pre-qualification in tenders

The theme that came through strongly was that accredited practices view Lexcel as a continuous improvement tool - it was equally good to hear that 96% are committed to continuing with their investment. Find out more about Lexcel and download support materials You can download the free support resources mentioned in this article at: www.lawsociety.org.uk/support-services/accreditation/ lexcel/publications There’s also full details about how to apply if you are considering the Lexcel accreditation for your practice. See the “Apply for Lexcel v6” page at: www.lawsociety.org.uk/lexcel

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Suﬀolk & North Essex Law Society

JUNIOR LAWYERS DIVISION

Oliver-James Topping Chair of the SNEJLD Email: oj.topping@attwells.com

The SNE-JLD has delivered on its planned events for the first half of the year and has managed to schedule even more for the months to come.

Josie Beal represented the JLD at the event and contributed to the discussion on how pro-bono features in day-to-day practice and the future challenges facing this area.

March saw the JLD centred around Colchester with an afterworks networking event and an invitation to judge theCommercial Awareness Initiative event held at the University of Essex. Both events were well attended by Colchester firms with a few from Ipswich making the journey to attend.

For up to date information on future events, please join the mailing list via our website – www.snejuniorlawyerswordpress.com.

The highlight of April was the JLD National Conference and Ball. The event featured a roundtable discussion on the future of Training Contracts and offered a chance to meet Junior Lawyers from across the country. May was a particularly busy month and included our qualification talk held with Clara Rose Consultancy. The event was well attended by young lawyers from across our area with Colchester, Ipswich, Bury and Chelmsford being represented. Special thanks to Sophie Hearle of Ashton KCJ for hosting the talk. The JLD was also invited to attend the meeting organised by the Law Society on how pro-bono is supported amongst local firms.

Law Society Consultation – The legal ombudsman case fee and funding The Law Society is currently looking for responses from the profession to a consultation document about case fees charged by the legal ombudsman when clients complain.

Announcement We are also delighted to announce the sponsorship of the SNE-JLD by Clara Rose Consultancy. Clara offers career route advice from a position of understanding the area both geographically and in terms of the law firms here. Having worked in CPD legal training nationwide from a Bristol base, she now lives and works in Suffolk. Starting your career can be an overwhelming time and Clara can offer support to make the right choices from the wide range of options and opportunities across East Anglia and Essex. Please contact her to discuss your career (over coffee or remotely) 07971 493048 or clara@clararoseconsultancy.co.uk

Need a house clearance or valuation advice?

As our members will know, at the moment we have the completely unfair position where firms can be charged by the legal ombudsman for dealing with unmeritorious complaints. I urge all firms within SNELS to respond to the fairly short consultation paper which can be found at www. lawsociety.org.uk/news/stories/have-your-say-howshould-the-legal-ombudsman-be-funded. Views need to be emailed to Regulatory Affairs at lawsociety.org.uk by Friday, 10 July. Philip Hoddell - President

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The Law Society, Eastern contact details Regional Manager: Anna Donovan

Suffolk & North Essex Law Society

Email: anna.donovan@lawsociety.org.uk

News

Law Society Eastern Regional Review

General Election

The Law Society 2020 strategy

Following the General Election, the CBI has released its view on what the key priorities for the new government’s first 100 days in office should be. Best Foot Forward

The profession and legal services market is changing, and we are taking a hard look at how we will support, yypromote and represent solicitors for the next few years. We are launching our Law Society 2020 discussion. The chance for current and future members to tell us how we can best represent, support and promote their practice and the profession in future years.

Recently the Law Society prepared a summary of the key priorities for each party, many of which are likely to feature as red lines in any future coalition negotiations. We also look at the policy commitments relevant to our members and the Law Society’s priorities. Read the analysis (PDF)

Statistics of a changing profession

Law Society Excellence Awards 2015: nominations now open

The Law Society’s latest Annual Statistics Report: Trends in the solicitors’ profession, published on 27 April, provides an authoritative record of the numbers of practitioners and the types of organisations they work within in England and Wales. Headline findings of the report include:

On 22nd October, we’ll be celebrating some of the very best work in the legal profession at the Law Society Excellence Awards 2015. Nominations are now open in a range of different categories, so if you know of a colleague deserving of recognition, please complete the online form by 5th June. Category details and how to enter.

• an increase in practising solicitors of 2.1 per cent compared to 2013. On 31st July 2014 there were 130,382, up from 127,676 on 31st July 2013.

Small Business, Enterprise and Employment Act 2015: implications for solicitors

• The number of practising solicitors grew both in-house and in private practice. An increase of 4% in solicitors registered in private practice is the sharpest rate of growth in 9 years.

The Small Business, Enterprise and Employment Act 2015 regulates a number of aspects of business including:

• appointment and disqualification of directors

• There was a 6% drop in the number of training contracts registered in the 12 months to 31st July 2014, compared with the year before.

• company filing requirements

To get a copy of the full report, which is free for Law Society members, please send your name and SRA roll number to: AnnualStatisticsReport@lawsociety.org.uk

Financial Benchmarking Survey 2014: Law firms report strong year Figures from the Law Management Section’s 2014 Financial Benchmarking Survey are unanimously positive and point to firms having a strong year. The survey showed that financial stability is ‘on the up’. Compared with findings from last year’s survey, there has been a dramatic rise in the percentage of practices operating profitability and within their overdraft limit. Read the full article here or to purchase a full copy of the report please visit our online bookshop.

Law Society Campaigns Court fees The Law Society is leading a campaign with other legal representative bodies against the increases. We have secured pledges from both Labour and the Liberal Democrats to review the increases if they are in government after the general election. While we will not be pursuing a judicial review of the increases, we will continue to closely monitor their impact on people and businesses, and we will be gathering examples and case studies which demonstrate how access to justice is being eroded for ordinary people and small businesses. 14

(May 2015)

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• insolvency

• aspects of employment law.

The broad changes also amend existing legislation such as the Companies Act 2006 and insolvency legislation.

A particularly significant change includes a new provision into the Companies Act 2006 requiring companies to maintain a register of people with ‘significant control’ over the company. This register will be open to public inspection. Anyone requesting sight of the register will have to state the purpose for which the information will be used, and the company may apply to the court to refuse access if the purpose is an improper one. There is now a requirement for beneficial owners to disclose their beneficial ownership of the company to the company. The use of bearer shares will be prohibited.

The act introduces a new insolvency procedure, including the regulation of new professional bodies which authorise the practice of insolvency practitioners. There are a number of changes to communications between office holder and creditors by removing the requirement to hold physical meetings in every instance, and a new deemed consent procedure which can be utilised by office holders in a situation where the company’s creditors are asked to make a decision. Administrators, receivers and liquidators have new reporting responsibilities, including the requirement to prepare conduct reports about directors when the company becomes insolvent.

Eastern Region Growth Conference

The Eastern Region will be organizing a conference on growth on 2nd June in Duxford. We will be working in partnership with the ICAEW and UKTI. The conference will provide the latest thinking in how to grow your business and will cover such areas as external sources of funding, recruitment and retention of talented people, the e-market place and protecting your IP. The ICAEW will be handling bookings: events.booking@icaew. com

Latest Practice Notes from the Law Society Holding client funds

This practice note includes detailed advice on:

• when it may be appropriate to retain client funds rather than return them

• the requirements imposed under the SRA Account Rules 2011.

Outsourcing

This practice note includes: • an overview of outsourcing • examples of outsourcing activities, and other relevant information on confidentiality, management of your practice and risk assessment

Publicising solicitors’ charges This practice note includes detailed advice on: • what must be included when publicising the cost of services • how to avoid providing potentially misleading cost information.

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The legislative changes will affect companies of differing size and require people with different roles, such as company directors and shareholders, to be proactive in implementing the new law as it is applicable to their particular circumstances. Members are urged to read and familiarize themselves with the legislative changes in order to understand how the new provisions affect their practice and to provide up-to-date advice to their clients

Suffolk & North Essex Law Society

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Are you getting the FULL PICTURE

on drainage & water?

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Visit www.geodesys.com/con29dw to get the full picture on all highlighted assets. Geodesys offers the CON29DW for all properties in England and Wales. We process around 97% of CON29DW searches (Anglian Water area) within 24 hours and offer in-house drainage and water expertise at no extra cost to investigate drainage and water issues both pre- and post-sale.

Order your CON29DW from Geodesys and make sure youâ&#x20AC;&#x2122;re getting the full picture!

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Drainage & Water Are you getting the full picture? When considering a property, home buyers don’t usually give the highest priority to drainage assets and water pipes. Hidden below ground and out of sight, it’s really easy to overlook their importance. A property’s value, title and maintenance costs, however, can be directly and in some cases, adversely, impacted by issues relating to these assets. Geodesys offers the CON29DW for all properties in England and Wales, so we are well aware of the costly oversights that could have been identified, had purchasers used a CON29DW search instead of alternative water and drainage searches, commonly known as Personal or Regulated Drainage and Water Searches.

CON29DW: setting the standard The Law Society introduced the CON29DW to provide a nationally uniform approach to the provision of property-specific water and drainage information. With 23 standard questions it is the only drainage and water search mentioned by the Law Society in its handbook and is supported by a robust and underwritten guarantee that protects home purchasers and their legal advisor(s).

CON29DW: key benefits ✔

Unlimited liability on residential property transactions

✔

Updated as soon as drainage and water legislation changes

✔

Regular legislation and product updates keep users up to date with improvements and legislation changes

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Monitored by the Drainage and Water Searches Network alongside The Law Society

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Swift turnaround – Personal Searches can take up to five days longer!

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Drainage and water expertise provided at no extra cost to investigate issues arising from a CON29DW, both pre- and post-sale

Should I choose a CON29DW or a Personal Search? Can your clients afford the cost, time and disruption to deal with drainage and water issues. Personal Searches do not tend to include answers to all 23 of The Law Society questions, and instead offer insurance to cover unanswered questions. As issues only tend to come to light once the buyer has moved in, the new owner then has all the difficulties of dealing with the problem retrospectively. In contrast to other drainage and water searches, choosing the CON29DW gives the FULL picture. You have all the facts up front ensuring that transactions can proceed in the full knowledge that any risks have been properly identified.

What’s the risk? This recent case study illustrates what can to wrong and gives an idea of the costs involved. A Personal Drainage and Water Search was ordered in place of a CON29DW and this search indicated that the property was connected to the public sewer. In reality, there was no sewer connection and sewage drained into an old septic tank. This was only discovered when the tank backed up causing nasty leakage into the homeowner’s garden! Resolving the issue and connection to the public sewer cost the owner around £10,000.

Would you want an overflowing septic tank in your garden?

At Geodesys we had a similar situation where the CON29DW had indicated a connection, where none actually existed. The home owner had the same issue when waste from the septic tank flooded his landscaped garden but, in this case, Geodesys arranged and paid for connection to the public sewer, as well as for removal of the old tank and waste.

Call in the Geodesys experts! At Geodesys, our internal experts are dedicated to producing the most accurate picture they can for you and your clients. If questions regarding the location of assets are raised either during our checking process or after you receive the search, we do our utmost to find out what’s really going on, including visits to the property. Image on right shows underground cameras are just one example of the specialist equipment that we have at our disposal

Geodesys offers the CON29DW throughout England and Wales, turn around 97% of CON29DW (Anglian Water area) within 24 hours and offer in-house training / CPD on drainage and water. For more information contact Matthew Bowles, Geodesys Client Account Executive on 07764 986563 or matthew.bowles@geodesys.com and start getting the full picture!

Suffolk & North Essex Law Society

Walk with us at

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An 10km sponsored walk to celebrate the 800th anniversary of the sealing of the Magna Carta and raise funds for free legal advice charities in Ipswich and the Eastern region and the vulnerable people they support. Tuesday 30 June at 5:30 pm Get a team together and join others from the judiciary, law firms, chambers, government departments, in -house legal teams - their friends, family and even a few dogs! Register at www.elst.org.uk or contact us at events@elst.org.uk

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Managing Stress & Worry Stress is your reaction to the levels of pressure upon you.

• In the first stage you may find yourself feeling overworked, uncertain of your own abilities, and reluctant to take days off.

• In the second stage you may find yourself tired, irritated and frustrated, working long hours but seeming to achieve less. You may be skipping meals, or ‘comfort eating’.

• In the third stage you may feel resentful or guilty, you will probably be neglecting your family and friends, and will no longer be enjoying work or life.

• Finally you may withdraw completely, succumb to illness or drug or alcohol abuse, feel a failure or completely break down emotionally and mentally. It is also possible to become stressed about matters inappropriately. If you find yourself worrying or becoming unduly anxious about matters in the past, matters which you know are trivial, or things which are related to someone else and do not affect or concern you, you may need to speak to your GP or a counsellor.

Where is your Stress coming from? Identifying where your stress comes from can be a good first step in dealing with it. Is it primarily from your career, colleagues, the work itself, financial concerns or issues at home? One of the best ways to identify sources of stress is to keep a stress diary for two or three weeks. When you begin to feel stressed, look at what you are doing and what you were doing before, and note these down. Any physical symptoms, such as headaches or stomach pain, should also be noted. After a while you may see a pattern emerging, and become better at identifying what it is that makes you stressed. Some Suggestions for Dealing with Stress

General • Eat healthily and exercise regularly. Take good care of yourself physically. • Give up smoking. You may think it relaxes you, but in actual fact nicotine only creates a new stress—that of craving for a cigarette. • Cut down on the amount you drink, or avoid alcohol altogether. There is a tendency for stressed people to drink too much and this could lead to a dangerous addiction. In addition, alcohol is a depressant and is liable to make stress problems worse, not better. • Learn to relax and unwind, perhaps by meditating or by chatting to a trusted friend or family member, or by indulging a hobby. • Get a decent night’s sleep, the longer the better. • Plan and book a holiday with your family or friends, and ensure that the office knows that you will be off for at least a week no matter what crisis should occur, and are incommunicado. Ensure that your work is covered in your absence. Use your full holiday entitlement.

At Work • When you are feeling very stressed, STOP! Ask yourself what is the worst thing that would happen if you did not do the tasks before you, and whether it will still matter a week later.

LawCare’s free and confidential helpline is open from 9.00 a.m. to 7.30 p.m. on weekdays and 10.00 a.m. to 4.00 p.m. at weekends. The number to call is 0800 279 6888. There is also a comprehensive website at www.lawcare.org.uk

• Protect your time by not over committing yourself. Learn to say ‘NO’ and mean it.

• Be realistic about deadlines. Being over optimistic usually means increasing the pressure on you and letting people down later.

• Build some ‘breathing space’ into your day. When you plan the work you will do, leave a good hour or so for those little things that crop up

• Take short work breaks. Walk around the office or have a cup of coffee (not too much though!). Stretch tired muscles. A five minute break every hour will actually increase your concentration whilst reducing stress.

• Take a proper lunch break and DO NOT work while you are eating. • If a task seems overwhelming, break it down into bits and deal with them one at a time.

• If you are getting impatient about something, ask yourself why you are letting it annoy you. Take some deep breaths and RELAX!

Time Management • Open mail with the waste paper bin handy, or get an assistant, if you have one, to sort your mail first and weed out all the junk.

• PRIORITISE! Put all the things you have to do in order of importance. Think about how much time each task will take, then add half that time again. In an eight hour work day you have six hours of actual working time, plus one hour for a lunch break (which is important), and another hour for unavoidable and unforeseen matters. Put everything you’re not going to be able to deal with today out of the way. Then gather together all the information, files, documents and telephone numbers you’ll need. The best time to do this might be first thing in the morning, or perhaps before you leave the office at night so that you can get started right away the next day.

• Each day list which tasks are essential, which you would ideally like to do if possible and what it would be good to do if you have time at the end of the day – you might like to call these you A, B, C, D and E lists.

A - Absolutely must do today

C - Could wait a day or two

B - Best done today if possible D - Delegate

E - Eliminate

• If someone asks you to do another task, don’t be afraid to say “If I do this I won’t have time to deal with this other file.

Which would you like me to do?” Let the onus of your being unable to do everything fall on someone else. Turning down additional work will not make you look half as bad as failing to do work you have accepted, or doing it badly.

• If a matter arises, such as a phone call, which isn’t important, don’t be afraid to say “This isn’t a good time, please call back later”. • Don’t subscribe to journals and periodicals you never have time to read.

• Fifteen minutes before you’re due to leave work - stop working! This is the time to organise everything ready for the next day, clear away files, pat yourself on the back for getting so far through your A and B lists, and start winding down and switching off. That way you should actually be ready to leave in time to catch your train.

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Suffolk & North Essex Law Society

The legal profession can be a very stressful one, and prolonged stress can lead to physical problems such as headaches, high blood pressure and heart disease, as well as mental illnesses such as depression. It can also lead to family problems, since the stressed person becomes quite short-tempered, and even addiction, as some people turn to alcohol and drugs to try to cope. However, not all stress is bad – it can be a helpful motivator and prevent us from becoming bored.

Suffolk & North Essex Law Society

GUIDELINE HOURLY RATES In July 2014 I published my conclusion that I had no evidential base to make any change to the exiting Guideline Hourly Rates (GHRs), and they would therefore be remaining at their current rates, as originally set in 2010. I said at that time that I proposed to hold discussions with the Law Society and the Government. I have done so, and I have received a detailed written response from the Law Society. These discussions and this correspondence have not made any material change to the position I was placed in last July – there is no funding available from any source for undertaking the sort of in-depth survey which the Civil Justice Council’s Costs Committee and its expert advisers consider is required to produce an adequate evidence base. There is also considerable doubt that even if such funds were forthcoming there would be sufficient numbers of firms willing to participate and provide the level of detailed data required to enable the Committee (and in turn myself) to produce accurate and reasonable GHRs.

This exercise is not happening in a vacuum, and I am conscious of a number of trends in the legal services market and other factors that are rendering GHRs less and less relevant. They include, but are not restricted to: • advances in technology and business practices and models; • the ever-increasing sub-specialization of the law which is seeing the market increasingly dictate rates in some fields (particularly commercial law); • the judiciary’s use of proportionality as a driving principle in assessing costs; • the greater adoption of (and familiarity with) costs budgeting amongst the judiciary and practitioners alike. Not least, I hope, of such factors, is a trend towards the greater use of fixed costs in litigation. I have long advocated their wider application, and will continue to press this point to Ministers and others in the hope that this important element of the Jackson reforms is implemented.

Less relevance is not the same as no relevance, and I am conscious that there are still many uses to which GHRs are put. They remain an integral part of the process of judges making summary assessments of costs in proceedings. They also form a part, even if only a starting reference point, in the preparation of detailed assessments. They also provide a yardstick for comparison purposes in costs budgeting. I know that for some smaller practices GHR also offer a rate to base practice charges on, and to demonstrate to clients a national benchmark.

I am not therefore suggesting that the existing GHRs no longer apply. The existing rates will therefore remain in force for the foreseeable future, and will remain a component in the assessment of costs, along with the application by the judiciary of proportionality and costs management. The Rt Hon Lord Dyson

Master of the Rolls and Head of Civil justice April 2015

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Probate Case Management versus Probate Accounts Many probate professionals refer to probate software as “probate case management.” This is a misunderstanding of the nature of probate software. What is the cause of this misunderstanding?

Most software suppliers to the legal marketplace are not able or lack the vigour to replicate the full complexity of estate administration, which is primarily an accounting function. They therefore supply the case management tools that are readily available to them which they sell as “probate case management.” Case management is concerned with workflows, mailmerging and task management. It is certainly a useful tool in the day to day management of events. It does not however lend itself to managing the finances of the estate. The fundamental question to ask is: how useful is case management without an accounting system based on a professional database from which it can suck financial data. One discerning solicitor likened it to “trying to catch fish without bait.”

• accounting for packaged products such as ISAS and PEPS • listing the market value of equities and their dividends • calculating the cash value to the beneficiary who does not want shares • auto calculating the net or gross tax of equities, gilts and unit trusts • listing the foreign shares and calculating the tax due under the double taxation agreement • constantly recalculating the money due to the residuary beneficiaries

These accounting functions clearly require a dedicated probate accounting system. By contrast a spreadsheet is a blunt instrument. Only an experienced practitioner with a depth of knowledge can manage this work in such a manner. An experienced probate practitioner could even hypothetically manage the work on the back of an envelope. Not of course a recommended practice.

The reality is that case management is at best about 20% of the estate administration - the bulk of which is ﬁnancial accounting. Law firms who buy ‘probate case management’ are unwittingly selling themselves short. You will still need a tool to log the assets and liabilities of an estate. Many firms use spreadsheets to record the financials of an estate. Spreadsheets are useful but an inherently high risk tool, in contrast to a probate specific accounting system. Spreadsheets are not inherently multiuser. Stuck on the sole computer of the user, they cannot be used on a central server by more than one user at a time without the risk of data being overwritten by one user over another. Creating management reports with information using all data from all cases from separate spreadsheets is not feasible. Inadequate management reporting is a significant risk factor for the firm, and is likely to alarm the auditors. The law society might look askance at such a practice, and you definitely will not win Lexcel accreditation. Probate accounting involves a plethora of financial details, such as:

• logging the assets and liabilities • separating capital and income • dealing with post death income and accrued income • paying the gas bill and funeral expenses • dealing with post probate adjustments • an easy way to account for an abatement of assets • dealing with capital gains/losses and revaluations

Isokon

Financial information needs to be held in such a manner that it can easily be understood by any other member of the team. In an efficiently run firm, work needs to be easily delegated to a probate assistant when necessary. Otherwise taking on new work is limited, and you will be in deep trouble if you fall ill and require an assistant to pick their way through your spreadsheet. An effective solution needs both case management and an accounting database, working in harmony with each other. The result is a profitable private client department. A number of probate managers have reported achieving gross profits in excess of 70% for their department as a direct consequence of using the Isokon accounting system combined with an integrated Isokon case management component.

For further information please contact: Gregory van Dyk Watson, Managing Director of Isokon Limited. Email: gregory@isokon.com or call 020 7482 6555. Alternatively visit www.isokon.com Isokon was founded by Gregory van Dyk Watson in 1999. The company has invested 44,000 man hours in development of the product over the last 15 years. The company is currently the leading supplier of software for Probate and Private Client work. It is used by 36% of law firms who do private client work. It is used by more than 2,000 individual users. Isokon is used for the most complex estates, as well as basic estates. Isokon is based on an accounting database engine with an integrated Isokon case management component.

Suffolk & North Essex Law Society

Veyo: efficient conveyancing for all

Desmond Hudson, Chairman Veyo

The proliferation of technology solutions, the ‘digital by default’ drive by the Government and the expectations of clients to buy and sell houses just as they conduct the rest of their lives online, will lead to a dramatic overhaul in the conveyancing industry in the next few years. Solicitors have of course been changing their business models and services for many years to streamline and remove costs in what has been a demanding and challenging market; and to meet the competitive threat of new market entrants. They have increasingly adopted IT solutions to make their service more efficient and cost effective. For larger firms with access to capital and funding well beyond the reach of many small firms that process has been more available and some have made significant progress and, not surprisingly, these market forces have changed the industry. The impact on consumers’choice is clear. Since 2007, the number of conveyancing firms has decreased by almost a quarter, and the larger process-efficient volume firms often paying referral fees for business are taking a significant market share.

Many sole practitioners and smaller conveyancers who offer their clients a distinct proposition are gallantly fighting to maintain a future under this backdrop, but the uneven match in technology armoury has left many battered and bruised. That is until now. Recognising the need for transformation, a more efficient process and a fairer playing field within the sector, the Law Society has partnered with IT solutions company, Mastek UK to create Veyo and bring the whole conveyancing process online.

A cloud based system, Veyo brings together in an electronic form all the processes, checks and documentation prepared and undertaken by solicitors in the sale and purchase of residential properties. Providing a full audit trail, and operating within a secure ‘trusted community’of users, the system allows professionals to better communicate with each other, home movers and other key stakeholders, to satisfy obligations more efficiently and to facilitate the conveyance of residential property through established preferred practice protocols. The platformwent live during May to a small pilot group before commencing its roll out across the industry. By moving the conveyancing process into The Cloud, Veyo has ensured that any Solicitor’s firmwith access to a computer and internet connection can use its solution. There’s no setup or installation fee and no annual maintenance charge required. Any firm, large or small can accessVeyo ensuring it’s not just the largest firms with access to capital that can use the best technology. Veyo offers a range of services that can be adopted depending on individual requirements. Users can upload search results, transmit and receive key documents, in due course exchange contracts online via the ‘Deal Room’and see the progress of a chain of transactions for conveyancers via the ‘Chain View’. The platform also allows conveyancers to 24

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upload HMRC information into it, directly interface with Land Registry and communicate with professionals and clients in a secure online environment. There is also a fully protected audit trail of documents and at any time an action is updated notifications are sent to all the involved parties. In addition, and crucially for small conveyancing firms, Veyo has been designed for the complete end-to-end process of residential conveyancing. For practices that currently have no CMS in place, Veyo includes, within the cost of the service, a fully functioning CMS tailored for residential conveyancing work.

The pricing strategy reflects Veyo’s intention to create minimal barriers to entry. A charge of just £20 per transaction includes AML searches, Law Society forms and contract and storage of the file for 15 years from completion, making paperless files a reality. Users will see a return on their investment in the platform due to the efficiencies created and reduced workload per transaction, as well as saving form the cost of additional items such as postal mail largely removed from the process. Some are concerned that Veyo provides enticing promises to smaller firms but to larger firms there is no incentive as they already have systems in place. However, Veyo will allow forintegration with existing CMS.

What we seek to do is to offer a new system that will benefit every conveyancing firmregardless of their current IT systems. For the first time, Veyo will allow all solicitors to collaborate online and to move away from traditional practice and antiquated means of communications, speeding up the process, improving transparency and efficiency.

Conveyancing faces unprecedented threats from cybercrime. Hacking into email accounts to intercept and then impersonate the seller in order to steal money is a very real threat. This can be particularly overwhelming for a small high street practice. Will they have robust IT firewalls or the latest fraud prevention measures in place? By partnering with Mastek UK, who has carried out IT solutions for exceptionally sensitive assets for the Ministry of Defence, Home Office and NHS, we have ensured users will benefit from a world-class system. Communication within the portal is much more secure than traditional email correspondence due to a built-in encryption of data and a secure multi-factor authentication, ensuring secure access to the portal and safety from malicious audiences. By designing a portal that offers not only unique features that will revolutionise the home buying process but also a comprehensive end-to-end conveyancing solutions for those who require it, Veyo has set out to empower all conveyancing professionals with next-generation IT services. Veyo has delivered transformational IT solutions to make the entire conveyancing sector more transparent and efficient; helping firms, no matter their size, provide the best quality conveyancing service for their clients.

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Experts and Contingency Fees – Suﬀolk & North Essex Law Society

The “Guidance for the Instruction of Experts in Civil Claims 2014”

Dr John Sorabji,

UCL Judicial Institute, j.sorabji@ucl.ac.uk

This article looks at the Guidance for the Instruction of Experts in Civil Claims 2014 (the 2014 Guidance), which replaces the Protocol for the Instruction of Experts to give evidence in civil claims (the 2005 Protocol). In particular it focuses on one specific revision: the approach it takes to instructing experts on a contingency fee basis.

Introduction

In 2012 the Civil Justice Council (CJC) appointed a working party, chaired by John Pickering (the Pickering Working Party), to review and revise the 2005 Protocol. It was to simplify the Protocol and revise it in the light of changes in the law. It published its draft revision (the 2012 draft Guidance) in July 2012. That draft was then subject to a lengthy revision process carried out by the Civil Procedure Rule Committee (CPRC), and specifically by a subcommittee, chaired by DJ Burn. The final product of its work was published in November 2014. It came into force on 1 December 2014, albeit it no longer forms an Annex to Civil Procedure Rule Practice Direction 35. It is now simply referred to in paragraph 1 of the Practice Direction, with the reader being directed to the website of the Judiciary of England and Wales. The result of the revisions to the 2005 Protocol, were largely stylistic. Its name was changed to better reflect its purpose. Its language and structure was simplified, with internal repetition removed. It was updated to take account of changes effected by the Jackson reforms, and, for instance, to improve its treatment of guidance to solicitors regarding the manner in which the provide instructions and documents to experts. One significant change was the manner in which the 2014 Guidance deals with the question of experts and contingency fee agreements. In this it departs from the position taken in the 2005 Protocol.

The Change in Approach to Contingency Fees

The 2005 Protocol was clear in its approach to the contingency fees. Expert witnesses were not to be retained on a contingency fee basis. As paragraph 7.6 of the 2005 Protocol put it, ‘Payments contingent upon the nature of the expert evidence given in legal proceedings, or upon the outcome of a case, must not be oﬀered or accepted. To do so would contravene experts’ overriding duty to the court and compromise their duty of independence.’

“It is readily apparent from this where the 2012 draft’s wording originated. It replicated its wording; its reference to the instruction of experts on a contingency fee basis as ‘highly undesirable.’...” The rationale for the prohibition was obvious. Any financial interest in the ultimate outcome of a claim would raise considerable doubts concerning the impartiality of the expert evidence given. Interest – payment by results – introduces a real risk of actual bias; that evidence will be tailored to maximise the prospect of the expert being paid. When the CJC working party issued its 2012 draft Guidance the prohibition had been replaced, in its paragraph 4.3.1, with language deprecating the retention of experts under contingency fee arrangements, ‘Payment of experts’ fees which are contingent upon the nature of the expert evidence given in legal proceedings or upon the outcome of the case is highly undesirable. There is an overriding concern to ensure the independence and objectivity of expert evidence;

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any contingent arrangement risks seriously compromising this fundamental requirement, and thus undermining the proper administration of justice. Experts must not therefore be retained on such a basis except in those exceptional circumstances where the court authorises such an arrangement.’

The rationale that underpinned the 2005 Protocol’s prohibition was evidently retained. The prohibition had however been rejected. As Dr Chris Pamplin, editor of the UK Register of Expert Witnesses put it this change was ‘perhaps the biggest surprise’ in the 2012 draft. As he went on to suggest, ‘While it is really just toying with the wording, we must assume that the authors of the guidance have some speciﬁc, but as yet unclear, agenda in mind.’ It was not entirely accurate to describe the revision as ‘toying with the wording’: what had been prohibited was now permissible, albeit subject to court authorisation in exceptional circumstances.

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It was also not unclear what the working party’s agenda was. As is apparent from the minutes from the CJC’s Executive Committee’s meeting of 5 July 2012, the published wording was not that which the Pickering Working Party had intended to be included in the draft. As the minutes make clear the original drafting of paragraph 4.3.1 retained the express prohibition,

Lord Neuberger MR, the CJC’s and the Civil Procedure Rule Committee’s chairman did not accept that Guidance annexed to the CPR could run contrary to the law. Following further consideration, and the Pickering Working Party maintaining its view that despite the legal position the prohibition should be retained, the CJC accepted, at its meeting on 20 July 2012, that the Guidance could not but do so. The 2012 draft Guidance was, as noted earlier, then subject to further revision by the CPRC Protocol sub-committee before final revision and approval by Lord Dyson MR. The ultimate product of that final revision and approval is paragraph 88 of the 2014 Guidance, viz.,

‘Payment of experts’ fees contingent upon the nature of the expert evidence or upon the outcome of the case is strongly discouraged. In ex parte Factortame (no8) [2008] QB 381 at [73], the court said ‘ we consider that it will be a rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement’.’

‘To give evidence on a contingency fee basis gives an expert, who would otherwise be independent, a signiﬁcant ﬁnancial interest in the outcome of the case. As a general proposition, such an interest is highly undesirable. In many cases the expert will be giving an authoritative opinion on issues that are critical to the outcome of the case. In such a situation the threat to his objectivity posed by a contingency fee agreement may carry greater dangers to the administration of justice than would the interest of an advocate or solicitor acting under a similar agreement. Accordingly, we consider that it will be in a very rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement.’

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‘The Committee welcomed the revised guidance. There followed a discussion on the wording of paragraph 4.3.1. The wording had reﬂected the WP’s unanimous view that contingency fees and CFAs should not be used as retainer mechanisms for experts. The Chairman felt that the advice could not be at odds with current case law, even though he understood the strength of feeling on the point.’

Setting aside the incorrect citation – the correct one being, R (Factortame Ltd and Others) v Secretary of State for Transport, Local Government and the Regions (No 8) [2002] EWCA Civ 932, [2003] QB 381, – the final approved draft clarifies the agenda that underpinned the wording of paragraph 4.3.1 of the 2012 draft. In paragraph 73 of ex parte Factortame Lord Phillips MR stated that,

It is readily apparent from this where the 2012 draft’s wording originated. It replicated its wording; its reference to the instruction of experts on a contingency fee basis as ‘highly undesirable.’ It paraphrased its emphasis on the need to secure an expert’s independence and objectivity. The agenda in 2012 was clear: the drafting then reflected the law set out in ex parte Factortame. That agenda remains in place, albeit explicitly in the 2014 Guidance.

The Importance of Clarification

The consistent position taken by Lords Phillips, Neuberger and Dyson – the latter two following the former’s judgment in Factortame – was therefore straightforward. Experts can be hired via a contingency fee agreement. That they can be does

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not however mean they should be. On the contrary, instruction on such a basis is only permissible with the court’s permission and only then, in the exceptional case, when it would not compromise the expert’s duty to the court and ability to give unbiased evidence. This clarification in the 2014 Guidance, and the fact that it draws specific attention to Lord Phillips MR’s dictum in Factortame ought to be welcomed for two reasons. First, while it the 2005 Guidance was clear in its prohibition, it did not accord with the legal position. It may have been a position that had strong support, but it was one that was not tenable in the light of Factortame. Guidance that does not accord with the law is more readily set aside or ignored. Guidance that, however, accords with the law has teeth. Secondly, there is a suggestion that notwithstanding the 2005 Guidance and Factortame some experts may have been appointed under contingency fee agreements. In Courtwell Properties Limited v Greencore PF (UK) Limited (2014), Akenhead J., (at paragraph 27 of his judgment) whilst discussing the conduct of two expert building surveyors,

that one of them took the view that the other had been appointed under such an agreement. If he had, the court would – applying Factortame – have had to have granted permission for him to act on this basis. Presumably there was no such permission or Akenhead J. and the parties would have been aware of it. Given the tenor of the judgment as a whole, it might be said that the fear that one expert was so acting was, putting it at its highest, not entirely reasonable. However, that it was a fear that could be entertained at all might suggest that at the least clarification was and is necessary and, at worst, that it was a fear that in some cases is reflected in reality. The 2014 Guidance thus not only has teeth, but it brings into sharp focus their nature. While the change in the Guidance may not appear palatable, that it refers both lawyers, experts and the courts back to Factortame cannot but be a good thing.

Citations

Civil Procedure Rules Practice Directions, 76th Update – Practice Direction Amendments, <http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/76thupdate-pd-making-document.pdf> Civil Justice Council, Guidance for the instruction of experts in civil claims, (20 November 2014) <http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/ CJC/Publications/Pre-action+protocols/CJC+Protocol+for+the+Instruction+of+Experts+to+give+evidence+in+civil+claims.pdf> (accessed 30 November 2014) Civil Procedure Rules, Practice Direction 35, Annex, Protocol for the Instruction of Experts to give evidence in civil claims (2005 – 2014) Courtwell Properties Limited v Greencore PF (UK) Limited [2014] EWHC 184 (TCC) C. Pamplin, Getting in Line, New Law Journal (1 October 2012) <http://www.newlawjournal.co.uk/nlj/content/getting-line> Civil Justice Council, Guidance for the instruction of experts to give evidence in civil claims 2012, (July 2012) <http://www.jspubs.com/downloads/PDFs/CJC_EP_ July_2012.pdf> Civil Justice Council, Meeting Minutes, (20 July 2012) <http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/CJC/Publications/Minutes/CJC+Council +minutes+20+July+2012+for+the+web.pdf> Civil Justice Council Executive Committee, Meeting Minutes, (5 July 2012) <http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/CJC/Publications/ Minutes/CJC+Executive+Committee+Minutes+-+5+July+2012+CJC+Website1.pdf>

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