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TO INSPIRE TO PROMOTE TO LEAD SUPPORTING SOLICITORS IN SOLE PRACTICE
solo Winter 2021
IN THIS ISSUE: Keeping Well in Our Busy Lives Professional Indemnity and Locktons Council Member‘s Report & more...
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contents winter 2021 4 From the Chairwoman 5 Profile: David Greene 6 Sole Practitioners Group 8 Honorary Secretary’s report 10 Solicitors and their Private Lives 11 Tea at Claridges 12 SPG Council Member is Deputy Vice-President of the Law Society 12 Get to know the Executive Team: Lubna Shuja 13 Keeping Well 14 Small but confident steps on the journey into Cyber Security for Solo legal practitioners 15 The mediation sweet spot 16 Council Member‘s Report 18 The Compliance Year Ahead
20 Responsible is our Middle Name 21 Forensic expertise when you need it 22 Bell vs Tavistock: Does informed consent stand in the way of autonomy? 24 The need for digital transformation is a necessity 26 The 3 Step Growth Accelerator Plan for Small Law Firms (That Will Work Even During Lockdown) 28 Revised Anti-Money Laundering Professional Guidance now in force 30 The Pandemic Effect: The Outsourced Transcription Provider as a Resource 31 Conveyancing Issues for 2021 32 We welcome new law on video witnessing of Wills 34 To Search or Not to Search, That is the Question
S Research supports the court experience that SGOs are often SGOs were introd
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From the Chairwoman
service after the pandemic restrictions are finally lifted, to run in parallel and complementary to live meetings on a regional and national basis. First of all, may I wish you all a very blessed and prosperous New Year, in spite of our present problems. The light at the end of the tunnel promised by the new vaccines is a huge relief and I hope that by the summer we are able to operate with far fewer restrictions in our daily lives. However, some things are changed forever, and in particular the new online hearings have demanded a leap forward in technical expertise and coordination with the courts which in my experience so far is not working perfectly by any means, but the principle is welcome and sole practitioners have the advantage of being more flexible than large firms in their administration, so I hope our members can adapt and flourish in this new world order. And as a wonderful start we must all celebrate and congratulate one of our Law Society Council Members, Lubna Shuja, on the huge achievement of being appointed Deputy Vice President of the Law Society. Lubna has worked tirelessly on behalf of Sole Practitioners for many years in Council, and this is a very well-earned position from which I am sure she will highlight your interests and work towards improved communication and cooperation between our Group and the Society. In the meantime, and in spite of the pressure of running our own practices in these challenging times, your committee have made progress in developing new ideas and services for our members. First of all, we have continued with our programme of Webinars for members which have been publicised through emails and retained on our website for you to view at your convenience. This will continue as a valuable
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We have decided on a programme of improvement and upgrading of our website, in particular the members area which has been inoperative for technical reasons for too long. The running speed on the site has already been improved, and we expect significant changes before the next edition of SOLO. After the disappointment of the cancellation of the Malaga conference, we have discussed what best would suit our members for our next live conference. Given the travel and health concerns and expense of a foreign event, it has been decided that our next conference will take place in the UK, hopefully in or within striking distance of the Greater London area, and we are tentatively looking for a booking in October. Of course, this is subject to social distancing and travel restrictions being lifted. We were pleased to receive a full refund of our deposit for the Malaga conference thanks to the efforts of our Conference Coordinator Jennifer Houlihan. You will see from their reports that our Secretary and Council Member Clive Sutton and Council Member Lubna Shuja have been deeply involved in complex discussions on the number and allocation of council seats, and I am relieved to report that we have retained our existing two for this Group. This is quite an achievement, in the face of proposals including the allocation of our seats to the Small Firms Division and involved many hours of exhausting Zoom meetings and preparation. I have also been continuing my campaign to force the Ministry of Justice to clarify a nationwide system for the secure delivery of documents to court, especially since we have been forced to use online systems for filing bundles. Birmingham Family Court has recently confirmed that they will
accept the Egress Switch encryption system (but no other), but Oxford Court require documents to be loaded directly on to their system, other courts are adopting their own methods, and there is no nationwide policy on this. I am grateful that the National Cyber Security Centre have taken this seriously and arranged meetings for me with them and the Ministry of Justice, the latest on Tuesday 19th January 2021. The importance of this was highlighted in my own practice just after Christmas when a client was harassed by a Daily Mail reporter for details of her divorce – that is just the sort of case where our communication of all our client’s private information in the court papers might be targeted and we must secure our systems as well as possible for our own sake as well as the client’s. None of us want to end up in the dock facing criminal charges under the Data Protection Acts because we had to file documents at court on insecure systems. Finally, I am delighted to say that in spite of lockdown we have been able to continue and improve our relationship with current and potential sponsors, so that the Group can look forward to a secure financial base for the future. Our principal sponsor Locktons Insurance Brokers have been enormously supportive, not only financially but also in providing information for discussions on SIF and providing best advice to members on insurance problems in the current extremely challenging market. As I write we are still in lockdown, but I hope that as the vaccination programme rolls out and takes effect, we can look forward to a more normal summer this year, and I look forward to seeing some you in person when we can next have live events safely. In the meantime, stay safe and stay successful in your practices. Penny Raby SPG Chairwoman 2019 – 2020 pennyraby@harmony-house.co.uk
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Profile David Greene David Greene became President of the Law Society of England & Wales on 14 October 2020. He is a Council member for international practice and was Chair of the International Committee and the Policy and Regulatory Affairs Committee of the Law Society. David qualified in 1980, becoming a partner at Edwin Coe in 1984. He became Senior Partner of the Firm in 2011. In practice David is a litigator as a claimants’ practitioner and has specialised in Group claims of all natures for over 25 years in the UK and around the World. His main focus is on commercial claims including competition claims and claims on behalf of shareholders. He is Head of both the Litigation & Dispute Resolution Group and the Group Action Litigation department. David has also worked in Africa for some 30 years specialising in work in the eastern seaboard. There he has undertaken many aided projects on civil justice and human rights. David is well known for his work on Brexit. He acted for one of the two claimants in the Article 50 litigation and for 50 MPs in the proroguing case. He also chairs the Law Society Task Force on Brexit. As such he has written and lectured in the UK and Europe on the issues that arise in relation to Brexit and civil justice. He has also provided evidence to the Commons and Lords on those issues.
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Sole Practitioners Group Executive Committee 2021 PENNY RABY Chairwoman and Head of Conference Penny has been a SP specialising in family law for 20 years, working with her husband Mike a Forensic Accountant on divorce cases involving business and complex asset and income tracing and Inheritance Act disputes. She won Worcestershire Family Lawyer of the Year award in 2014 and was nominated for the National Family Law Magazine Family Law Firm of the Year for 2015. She has appeared on radio and television and, with Mike, has toured their networking pantomime ‘Snow White and the Seven Small Business People ‘ internationally, including a notable performance at the 2016 SPG Conference in Prague! Tel: 01386 555 114 Email: pennyraby@harmony-house.co.uk Penny Raby & Co, Harmony House, 7-9 Church Street, Pershore, Worcestershire WR10 1DT
JOANNA CONNOLLY Vice-Chairwoman Joanna Connolly specialises in the areas of Consumer Credit, Contentious Probate, and Insolvency. Joanna is a solicitor with Higher Rights of Audience who is qualified to represent clients as an Advocate in the higher courts in England and Wales. She was previously Head of Consumer Credit Litigation at MSB Solicitors and has had extensive litigation experience both at County Court and High Court level. Joanna had conduct of the lead Consumer Credit Act High Court case Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) as well as cases in the Court of Appeal. Tel: 0330 053 9340 Email: enquiries@joannaconnollysolicitors.co.uk Joanna Connolly Solicitors, 33 Cheadle Avenue, Liverpool L13 3AE KEM MASINBO-AMOBI Honorary Treasurer Kem qualified as a solicitor in November 2002 under the tutelage of Mr Martin Mears (former President of the Law Society). Kem has over sixteen years commercial experience gained in a variety of demanding and challenging environments. Kem’s employment history includes time spent at some of the most prestigious legal firms in Suffolk and Norfolk. A keen gardener, Kem has completed the RHS Level 2 Certificate in Horticulture and her other hobbies include reading, travelling and cooking in true “Nigella” fashion. Tel: 01473 760 046 Email: kem@kmasolicitors.co.uk KMA Solicitors, Saracens House 25 St Margaret’s Green, Ipswich, Suffolk IP4 2BN
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CLIVE SUTTON Honorary Secretary & Council Member Clive specialises in litigation covering most aspects of private and commercial work and has been a sole practitioner in Lymington in Hampshire since leaving a partnership in 1998. His other interests are as Chairman of his local Amenity Society in Lymington and Trustee of the New Forest Centre Museum in Lyndhurst. In the past he has served as Chairman of the local Citizens Advice Bureau and Churchwarden and in the early 70s as a Resident Magistrate in the Seychelles. Clive has been an SPG committee member since 2000 and served as Chairman, and then as Hon Secretary and Chair of the Insurance Subcommittee from 2006. He was on the Law Society Council Membership Committee for 10 years and since 2017 has been the SPG Nominated Law Society Council Member, serving now on the Councils Scrutiny and Performance Committee. Tel: 01590 672 595 Email: solicitor@clive-sutton.co.uk Clive Sutton Solicitor, 3 The Old Print Works 85b High Street, Lymington, Hants SO41 9AN
SUSHILA ABRAHAM Solicitor Sushila has lived in Surbiton, Surrey for over twenty years. She decided to start her own practice locally because she wanted to offer quality and care to the local community. She also wanted to be free from pressure to overcharge clients in order to meet the profit and billing targets set up by some of the bigger law firms. She is married to Matthew a barrister, and they have one son who has also qualified as a barrister. In addition to being wife and mother, running her practice in Surrey, and her role on the SPG Executive Committee, Sushila is also ‘Cllr Sushila Abraham’, having been elected as Lib-Dem local councillor in the Borough of Kingston in a by-election in February 2013 and then re-elected in May 2014. Sushila was also President of Surrey Law Society and was elected as Law Society Council Member for Surrey. She is also a Board member of the Membership Board at the Law Society and a Trustee of ICLR representing the Law Society. Sushila is a very community minded person and had run cookery classes for local school children, which she called “Suzie’s Kitchen”, believing in the importance of teaching life skills. Tel: 020 8390 0044 Email: office@sabrahamsolicitors.co.uk S Abraham Solicitors 290a Ewell Road, Surbiton Surrey KT6 7AQ
SUKHJIT AHLUWALIA Head of Marketing Sub-Committee Having worked in some of the most prestigious banking and consultancy organisations, Sukhjit opted to provide a more personal one to one service and believed that this could be best done through his own practice. He has been based in Goodmayes in Ilford since 2003. In his private life, Sukhjit likes to get involved in a number of charitable activities, working with organisation to assist people from all backgrounds and ages in reaching moral excellence either in their private life or in their professional capacity. Whilst he is quite a shy person, Sukhjit has been part of two documentaries exploring the changes that have taken place in the traditional arranged marriage process. His children are still young and take up a great deal of his time but when he does have time for himself, Sukhjit likes to sit, read a good book and watch the world go by. Tel: 020 8215 0884 Email: sukhjit_ahluwalia@ae-law.co.uk Avery Emerson, Gloucester House, 335 Green Lane, Ilford Essex IG3 9TH MOSES AJAYI Solicitor Moses was admitted as a Barrister and Solicitor of the Supreme Court of Nigeria in 1987. He has also been admitted as a Solicitor of the Supreme Court of England and Wales. Moses is a Sole practitioner and specialises in Human Rights and Immigration. He is also engaged in general civil and criminal matters on a private fee basis. In his spare time he enjoys sailing and has participated in many sailing events around the world. He also enjoys discovering new places and spending time with his family. Tel: 020 7733 6506 Email: brazenglow@aol.com Slade & Fletcher Solicitors 1st and 2nd Floors 348a Camberwell New Road London SE5 0RW
DAVID BARTON Editor of Solo David qualified as a solicitor in 1982. For 20 years he was a partner in a medium-sized mid Kent firm from which he retired in 2003 to start his own practice as a sole practitioner. Since then he has specialised in solicitors’ professional misconduct and criminal road traffic work. In April 2002 David was awarded the Higher Court’s (All Proceedings) Qualification. From 1996 until 2016 David was one of the SRA’s external prosecutors. He also advised and represented solicitors and their firms in regulatory difficulty, and now does that exclusively.
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David is married with 3 grown up children. He is a keen cyclist, golfer, walker, traveller and reader. Tel: 01580 292409 Email: davidbarton@dblaw.co.uk David Barton Solicitor Advocate Limited Flagstones, Biddenden, Kent TN27 8JG
RAHIL CHAUDHURI Solicitor Rahil Chaudhari is a Senior Solicitor at Arlingsworth Solicitors. Rahil secured an LLM at University College London and then went on to train and work at some of the most prestigious law firms in the City before joining Arlingsworth in 2005. Rahil is a highly experienced and versatile solicitor and has practiced in the fields of immigration, family, commercial, employment and litigation for the past 20 years. He now specialises predominantly in immigration, human rights and company law. Rahil has become a leading authority in these areas. Rahil’s client base spans a wide range of sectors from multinational companies to private individuals. Rahil always works tirelessly to achieve successful results for his clients and he is driven by providing exceptionally high standards of client care. Tel: 01273 696 962 Email: rahil.chaudhuri@arlingsworthlaw.co.uk Arlingsworth Solicitors Ltd, 145 Islingword Road Brighton, East Sussex BN2 9SH
DORCAS FALODE Solicitor Dorcas is a Sole practitioner, at home and abroad. She recently celebrated 10 years of being a SP with offices in London and Lagos. She flies in and out of the UK on a regular basis dealing with a variety of cases. She specialises in Immigration Law dealing with entry clearance cases, family reunion, visitors’ and students’ visa applications. The practice also deals with family and education cases, giving a voice to the weak and defenceless. Dorcas is married with four children. When she is not busy attending to clients, she works as a counsellor, nurse, cook, taxi driver, tutor of her four young adults. She loves to travel and finds shopping very therapeutic. Tel: 020 3223 1061 Email: df.solicitors@yahoo.co.uk DF Solicitors, 791 Sidcup Road London SE9 3SB DAVID HINDE Solicitor David is a dispute resolution specialist with over 20 years’ experience dealing with civil and employment law matters. After reading law at the University of London he trained and qualified in the City of London working at leading law firms before starting his own niche practice as a sole practitioner based
in Covent Garden. Acting for individuals and SME companies he has dealt with a wide-range of cases ranging from judicial review in the European Court of Justice to contract and property disputes in the High Court and County Court. He is a member of the Employment Lawyers Association and speaks French. Married with a son who keeps him very busy when not in the office, he is also a school Governor of his local Primary School and enjoys reading, cycling and the cinema. Tel: 020 7112 5209 Email: admin@hinde-law.com Hinde Law Ltd, 71 - 75 Shelton Street London WC2H 9JQ HAMISH MCNAIR SRA Liaison Lead Hamish is based in Fulham, London. Having initially specialised in copyright and trade mark work, both in the City and New York City, his practice now includes conveyancing, wills trusts and probate, as well as litigation. Married with three children, when Hamish is not in the office or involved in SPG matters he enjoys open-air swimming, sailing, overnight bike rides, and also has a passion for the theatre. Tel: 020 7371 7896 Email: hamish.mcnair@mcnairlaw.co.uk McNair & Co, EBC House, Ranelagh Gardens London SW6 3PA OLUWAKEMI MOSAKU Solicitor Kemi was called to the Nigerian Bar as a barrister and solicitor of the Supreme Court of the Federal Republic of Nigeria in 1989 and admitted as a solicitor of the Supreme Court of England and Wales in 2004. She has a varied work experience which includes working in the immigration department of the Home Office, private practice both in legal aid and privately funded matters in the UK. Her last role was head of immigration department in a firm before setting up as a sole practitioner. She specialises in Immigration and Human Rights Law. She also undertakes family law work and landlord and tenants. Outside of work Kemi is a trustee in a thriving charity and enjoys spending time with her three sons. She also enjoys keeping fit, music, networking, reading biographies and current affairs. Tel: 01634 780 230 Email: info@emeraldsolicitors.co.uk Emerald Solicitors, The Old Courthouse, 1 The Paddock, Chatham, Kent ME4 4RE TAHIRA SHAFFI Past-Chairwoman Tahira has been a practicing solicitor for 20 years. She set up as a sole practitioner after being made redundant in 2010. She has found the SPG to be an extremely
helpful point of contact on so many issues which are affecting the whole profession whilst paying particular attention to the needs of Sole Practitioners. Tahira understands that being a sole practitioner can be a lonely experience but networking with like-minded individuals makes all the difference. She is glad that there is an independent body outside of the Law Society that is working hard to look after its members interests. Tahira is based in Bury, Greater Manchester where she lives with her family. She has lots of interests outside of the law including politics. Tahira was previously an LEA school governor and has stood as a candidate in the local elections and is passionate about civic duty and putting something back into the community. It is a lot to juggle with but Tahira is proud of the work of the SPG because she believes in better representation for Sole Practitioners! Tel: 0161 222 6092 Email: info@mikhaellaw.co.uk Mikhael Law, 197 Rochdale Road Bury, Lancs BL9 7BB
LUBNA SHUJA Council Member Lubna qualified as a solicitor in 1992. She was a partner in a high street firm in West Yorkshire for many years and then started her own practice in Birmingham in 2007 undertaking mediation, family and civil litigation. Lubna became a CEDR accredited Mediator in 2005, and is dual qualified to conduct both Civil and Family mediations. Lubna is also involved with various regulators and she Chairs a number of Disciplinary/Professional Conduct Committees. She is a Law Society Council member where she represents the interests of sole practitioners, Chair of the Law Society’s Membership and Communications Committee, and she also sits on the Law Society Board. Tel: 0121 551 7866 Email: info@legalswan.com Legal Swan Solicitors, 1st Floor, 168 Hamstead Road, Handsworth, Birmingham B20 2QR NICHOLAS WOOLF International Arm Nick was admitted as a solicitor in 1979 and was a junior partner in two firms in London before starting his own practice in the West End in 1987. In 2011 he moved on to create a niche international commercial and family practice in Chancery Lane. He is a Member of the Solicitors Family Law Association and has trained other professionals on family law matters and antimoney laundering. Nick is married with four children and he has a range of hobbies which include travel, music, tennis, reading and photography. Tel: 020 7242 6018 Email: info@nicholaswoolf.com Nicholas Woolf & Co Solicitors 87 Chancery Lane, London WC2A 1ET
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Honorary Secretary’s report Winter 2021 years because, as I’m sure you will know by now, she has been elected by her colleague council members to be the Deputy Vice President in the coming year which means that, barring accidents, she will be Vice President next year and the President of The Law Society in the following year 2022/2023. That will be a very proud moment for the SPG to know that The Law Society is so ably represented by one of their number. Her election was a clear mandate by her fellow council members on the basis that out of five candidates she received more votes than all the other candidates put together. We are all glad to know that the two SPG Council seats which were provided to us in about 2002 in my first year on the Council Membership Committee (CMC) were, after a degree of lobbying, agreed to be maintained for the Group. There is recognition that SPG provide a significant service for a significant number of solicitors now in the region of 4500 out of the total electorate of 200,000. Looking at my previous report in the summer I said I thought we were then living in a parallel universe, which I then confidently assumed would be of short duration. That parallel universe now seems to be our new normal and it will probably feel very strange going back to our old universe, if and when that is possible. I see that I covered a very large amount of ground in my summer 2020 report. I can update that by saying that my encouragement to receive enquiries from individual solicitors has borne quite a lot of fruit and I have had a constant rewarding dialogue with individual members about particular problems. Indeed I was really gratified to see a response from one member who had recently retired and, although he had never had reason to deal directly with the SPG, he had received all our communications and said he had been very grateful to have known that we were in the background in case he needed help. That is the sort of comfort we wished provide. Obviously there will some – hopefully more – people who want to be specifically involved in the executive committee and attend conference when we are able to hold this again, but there are many people who will be glad just to read our email updates and know that they can call on us for support when necessary. What I hope we can do more of now is to involve our members with webinars making it much easier to be involved and interact with colleagues. I know that our Chair, Penny Raby and our Vice Chair, Jo Connolly, are keen to continue those and provide a regular line of communication with our members. My last communication with members was to encourage a response to the Law Society’s members vote on the reconstruction of the membership of Council, firstly by the reduction in the geographical seats and the increase of seats for specialist bodies such as ourselves, and secondly the limitation of terms of service to 12 years for Council Members. While that limitation won’t have any effect on myself, having only served one four-year term as Council member expiring next October, it will potentially impact on my colleague council member, Lubna Shuja, who in October completes eight years and the next four years will be her last under the new limitation. It is very lucky for us and for the Council that she will have a further four
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What was somewhat disappointing was that only 12,000 Law Society members voted in the election, and I hope that a significant number of those were sole practitioners following my recommendation to you that you should exercise your democratic right to decide on how the professions representation should be recognised in the Law Society Council. One of Lubna’s tasks, at which I believe she is going to excel, is to improve the engagement of all members of the profession with The Law Society, as the SRA continues to disengage itself from the Law Society leaving the Law Society to be able to carry out it’s true representative functions for solicitors and let the SRA get on with the regulatory functions. For too long I believe members of the profession have seen the Law Society as linked to the regulatory function and therefore difficult to relate to for support. Continuing with the theme of elections in the febrile post Brexit and Trump election periods, I should alert you to the fact that the resolution passed recently includes a resolution that the existing system of nomination of any council member by their relevant Group should be replaced by an election of the relevant council member by the full constituency that that member will represent. In the past, possibly because of convenience, organisations such as ourselves nominated council members through the executive committee. As a result they were probably likely to be members of the executive committee. That was seen as out of touch with modern practice by the CMC. Accordingly unless anything else happens, changes of your council members in future need to be on the basis of election by the whole constituency of 4500 sole practitioners, if one could obtain their details and probably it is only our group which has an accurate database. The difficulty with that is that it could quite easily happen that one or both of the council members may not be in tune with the executive committee, in the same way that Mr Trump does not appear to have be in tune with the American legislature. I was able to persuade the Chairman of the CMC at the last council meeting approving the wording of the resolutions, that an exception for nomination could be made in exceptional circumstances. Whilst we believe that this year’s reappointment of council members will be
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under the nomination system because no electoral databases will yet be in place, the decision will arise with future appointments and I believe you will be canvassed for your views as to the way in which they take place. If there is a significant wish by our members for the continuance of nomination then that in my view would be grounds for exceptional circumstances for nomination to continue because we can say that the SPG covers the whole spectrum of sole practitioners and speaks for them and all members have an entitlement to make their views known at annual general meetings. I appreciate all this is somewhat esoteric dialogue in circumstances where we are all fighting to keep our heads above water by working through lockdown but we need to be looking at a time when we hope lockdown is a thing of the past. I think it would be helpful to comment at this stage on the SPG relationship generally with the Law Society. Over the past years there have been various ups and downs where we were given the prospect of either going in-house with The Law Society as a division or staying outside independently and as you know we chose the latter. A last hope was expressed in the recent dialogue by the now retired chairman of the CMC that we should “return to the fold” but I think that is unlikely to be echoed by any other of the existing officers and executives of the Society and we are moving forward to a comfortable relationship with the Society encouraging its support through close liaison through our Council Members, and now the fact that one of those Council Members is an officer of the Society. I hope that we will be able to look to ways of cooperating with the Law Society in the future in the services provided to members. What must be borne in mind is that the Law Society has a large budget and a large staff to be able to provide the administrative backup. Our administration and activities, although ably supported by our sponsorship is largely on a voluntary basis. That brings me to a sensitive issue but one which is important to a significant number of the members of our Group. When I joined the SPG, its executive committee was almost 100% non-diverse. Over the last 10 years we have achieved a completely diverse executive committee representing a very diverse membership. The last six or seven Chairs of the SPG who I have been privileged to work with have been from ethnic minorities, although it is strange to me to describe them as such. As a result of the recent racial injustices in America the President of the Law Society has announced a Law Society initiative to investigate the Society’s historical links with the slave trade and colonialism. This research was proposed by the Law Societies black and minority ethnic staff network and will be overseen by a steering group of members of that network. My research indicates that slavery was outlawed in Britain in 1807 and by Britain in other parts of the world in 1843. The Law Society was incorporated by Royal Charter in 1831. Whilst as lawyers, we all know the value of research, I hope this subject is objectively researched, and not produced with any intention of promoting a political agenda and creating divisions amongst lawyers generally, to any detriment of the harmony which I have always seen within the SPG. As any good lawyer should, I declare an interest – in colonialism, possibly being one of the last practising lawyers to have worked in a colony, the Seychelles, namely as a resident magistrate from 1973 to 1975 before its independence in 1976. I hope I took with me, and possibly left there, a few of the principles of equity which Lord Denning was inspiring at that time.
Professional Indemnity and Locktons Our relationship with Locktons continues to flourish on the basis that of the relationship with the various individuals involved and the fact that Locktons indicate that they feel their relationship with us is developing as they hoped. I can say that when I have had to refer any professional indemnity issues to them on behalf any members, the response has been immediate and professional. It is effectively because of the financial support they provide, that we do not to look to our individual members for subscriptions to run the Group and have the resources to run successful conferences, without having to worry about whether the executive committee will be personally made bankrupt in the process! I hope you will always give them an opportunity to quote for your PI renewals. The new term date for the closure of the SRA backed run-off support for those who have gone beyond their five-year insured run-off cover, is approaching quickly in October this year. My colleague Lubna is monitoring the Law Society group which is looking for a way forward. Hopefully there will be sufficient funds to cover those whose closure preceded the end of the Solicitors Indemnity Fund in 2000, but there will have to be other arrangements for those who have closed since then. As soon as we learn anything further on this we will circulate the membership. Clive Sutton, Honorary Secretary. January 2021
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Solicitors and their Private Lives activity is non-consensual, or amounts to harassment or an abuse of position, or involves conduct which criminal in nature or which brings genuine reputational damage to the profession or the administration of justice. Higher standards of behaviour are expected, but like the society we serve we don’t have to be paragons of virtue.
The High Court’s decision of 27 November 2020 in Ryan Beckwith v SRA [2020] EWHC 3231 (Admin), which the SRA has said it will not appeal, has at long last put down clear parameters about when solicitors’ private lives are their own and are no business of the regulator however “inappropriate” the behaviour may be thought. The SRA is no longer at liberty to simply set a standard by reference to what it considers right and wrong. It also provided much needed help on the enormity and opacity of costs claims solicitors face when defending themselves before SDT. Both have been significant issues for a considerable time. Beckwith is a significant decision and was in many respects a bad outcome for the SRA which had hitherto prosecuted misconduct cases based on material arising from activity outside practice by reference to what it considered acceptable or appropriate behaviour. It is sometimes dogmatic in its approach, even if unwitting, and unwilling or unable to separate out the truly private where it is not right to enquire. The High Court said it cannot continue to do this, and we can all be grateful that Mr Beckwith had the resources to challenge the SRA’s approach to such cases.
It is worth remembering what the SDT case was all about. In many ways it wasn’t unusual or particularly remarkable. Ryan Beckwith had a “sexual encounter” with an associate solicitor of the firm of which he was a partner during the evening of 1 and 2 July 2016. They had both been part of a group drinking in a pub near his firm’s London office. It was accepted that he was in a position of seniority over the associate. Both had been drinking heavily before the encounter took place. It seems that the complaint was made to the SRA in August 2017, following which the SRA made an application to the SDT. It alleged that the sexual encounter constituted a breach of Principles 2 and 6 of the SRA Principles 2011 for a number of reasons, which in summary were that Mr Beckwith was in a position of seniority over the associate, that he knew or ought to have known that his conduct had not been invited and was unwelcome, that he knew or ought to have known the associate was very drunk and vulnerable, and that his conduct was an abuse of his position of seniority.
The SRA is having to review all its current cases in light of Beckwith, and it has implications for all future cases as well. This is to be welcomed.
SDT made a number of crucial findings of fact having heard the evidence. There is a long list of them annexed to the Judgment, but it found that a sexual encounter took place between two persons who were both heavily intoxicated, that Mr Beckwith was in a position of seniority, but rejected the contention that the associate was vulnerable. It rejected the allegation that Mr Beckwith had acted in abuse of his position of seniority or authority, and found there was no issue over consent. It instead found that by engaging in sexual activity with the associate he had acted “inappropriately”. It went on to find he had thereby breached his obligation to act with integrity and to behave in a way that maintains the trust the public places in solicitors and in the provision of legal services.
This is not to say that all activity categorised as “private” is no longer caught by Standards and Regulations. That would be going too far, but solicitors’ sex and private lives should remain their own private business except where the
Principle 2 of the 2011 Principles required solicitors to act with integrity. It has been replaced by Principle 5 of the 2019 Principles but the obligation is the same. Public trust obligations are also broadly the same.
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“Integrity” has never been particularly easy to work with. It is a broader concept than honesty and more nebulous, and therefore less easy to define. Putting it simplistically, it’s something you know when you see it. It requires an adherence to moral and ethical principles of the solicitors’ profession. The question what are these, and who sets them? Until now SRA was free to do this in any given set of circumstances and SDT was similarly free to do so, and assess what the solicitor did against them. This is no longer possible. SRA and SDT cannot set its own freestanding standards, and this is to be welcomed. Included in the working understanding of “integrity” is that solicitors are not expected to be “paragons of virtue”. This has tended to be forgotten, until now. It has permitted the regulator to be overly judgmental. Beckwith makes clear that a solicitor may well behave “inappropriately” or even disgracefully and may well damage his own personal reputation. It does not however follow that in doing so he acted without integrity or harmed the standing of the profession generally. Until now, SRA tended to equate inappropriate behaviour with misconduct, and has published a number of guides setting out its expected standards. The Court ruled such guides play second fiddle to legislation and to the content of the Handbook properly defined and construed. This, the court said, is how conduct is to be assessed. The court also made clear that it is of no help in making an assessment to introduce comparisons with other regulated professionals. There needs to be a clear link between the conduct identified and practice as a solicitor, for this is why we are regulated. This approach will apply to a whole range of conduct which has no obvious connection to practice as a solicitor. Private sexual conduct is plainly included, but so may conduct involving drugs or alcohol. It is not in my view misconduct to be an alcoholic, but I am aware of at least one instance in which the SRA has advanced a failure to take steps to address alcoholism as part of a prosecution, suggesting it supports a lack of integrity. Solicitors shouldn’t be alcoholics and if they are, they should take effective steps to address it. Really? The most welcome thrust of Beckwith is that SRA is no longer free to sets its own free standing standards; it must do so clearly by reference to the Handbook and the obligations in it as properly defined. This will at last bring a degree of certainty and remove the ever present
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moral judgment that punctuates prosecutions that touch on private lives. The SRA should not require solicitors to be paragons of virtue in their private lives – we are entitled to have one! Beckwith has also provided much needed help on the vexed question of prosecution costs. Despite impressions to the contrary Beckwith was factually straightforward as it considered a one off sexual encounter which did not involve police as there was no criminal conduct. Further, much of the factual background was admitted. SRA only had to try and prove that the largely admitted facts constituted a breach of Principles 2 and 6, and yet ran up massive costs of £343,957. Mr Beckwith was ordered
to pay £200,000, and his appeal against this order succeeded. The court said the claim was “alarming”. The SRA was reminded that regulators pursue disciplinary proceedings in the public interest, and the costs they incur should reflect that responsibility. They must exercise their regulatory powers proportionately, and since the SRA will not usually be ordered to pay costs when regulatory proceedings are successfully defended, it must conduct its cases with proper regard to the need to permit those who face prosecutions to defend themselves without excessive cost. The court said this was part of any regulator’s responsibilities in the public interest.
The increasing size of SRA costs in regulatory proceedings has been a cause for serious concern for quite some time. Transparency is also important, so that those prosecuted can see the work done and who did it. It is to be hoped the SRA will take this on board. SDT has appeared to be far more testing of costs claims and this is to be welcomed as well. Solicitors should not fear the costs of properly defending or explaining themselves as a basis for not doing so. David Barton is a Solicitor Advocate specialising in advising and representing solicitors and law firms. He can be found at: www.solicitors-disciplinary-advice.co.uk
Tea at Claridges Thanks to insurer Lockton’s inspired generosity, one highlight last year was a Champagne Tea at Claridges. At our last SPG Conference, in Manchester, Lockton had offered the Tea for Two as a prize for guessing the number of sweets in a bottle. I was amazed to find my guess was the nearest.
‘O Goddess best beloved, delightful tea!’, wrote the poet Coleridge; but with champagne too, what better way to celebrate my wife, Cat’s birthday in October? In 2019 it was not to be, so in October 2020, in a lull between lockdowns, we made our way across Claridge’s effortlessly elegant entrance hall, into the classic Art Deco comfort of the Foyer & Reading Room. Warmly welcomed, we were shown to a table near a magnificent and tiered display of sunflowers, and below an exotic chandelier (by Chihuly) that looks like a giant cluster of intertwined snakes. Generous glasses of Laurent-Perrier champagne were poured for us as our orders were taken.
While gentle music flowed from the grand piano and ‘cello, we admired the striking Art Deco details: the pale green striped teacups, mirrored columns, and sumptuous carpets and chair coverings. With twenty teas and six infusions on the menu, we were glad to have our waiter’s expert and enthusiastic guidance, starting with Claridge’s Blend and moving onto a more unusual Hojicha, a delicate roasted Japanese green tea. Finger sandwiches were brought, as many as we wanted and all mouth-wateringly superb. Smoked salmon, duck egg, ham, cucumber and
chicken – all with wonderfully imaginative blends of delicious flavours. They were so good that after the scones and clotted cream and jam made from tea, we didn’t have room for the amazing little cakes and pastries that followed. Each one was a mini work of art so we were delighted they could be boxed up for us to take home. It was an altogether uplifting and memorable experience for us. As a treat, once lockdown ends, it is strongly recommended.
Hamish McNair
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SPG Council Member is Deputy Vice-President of the Law Society It is an honour and a privilege to have been elected Deputy VicePresident of the Law Society of England and Wales. I took up my new role at the Law Society AGM on 14 October 2020 and it has been a whirlwind of activity since then! This is the first time that a SPG Council Member has been an Office Holder at the Law Society and I hope it will not be the last! All being well, I will become Vice-President in October 2021 and then President of the Law Society in October 2022. I will be the first Asian President since the Law Society was set up in 1825 and only the 7th female President in its 125 year history. There is much work to be done for members. No firm or individual has been immune from the consequences of the pandemic. It has been catastrophic for some. This is a time when members need the Law Society the most. The landscape of our profession will significantly change over the coming months. Firms are already closing, merging or downsizing.
Redundancies have started. Black and Minority Ethnic solicitors will be disproportionately impacted. There will be an increase in new start-ups, freelancers and consultants. I am keen to see the Law Society provide more value and support to members to address these changes and to help meet their aspirations. Equality and diversity is very important to me. I will work hard to highlight the challenges many of our members face and do whatever it takes to bring about change. I want to see, and be part of, a profession that truly reflects who we are. The dumbing down of our profession continues and we are being fired at from all angles “in the interests of consumers”. There is talk of a single regulator for all providers of legal services whether they are regulated or not, and clients continue to be highjacked by online DIY services. The Law Society plays a vital role, not only in being the voice of solicitors, but also in
protecting the reputation of our profession. I will be one of those voices who shout loudly and more forcefully about the value of using a trusted solicitor who will act in the best interests of their client. I will also do what I can to inform members not only about what is happening now, but also on what is coming down the line. I will help the Law Society to equip members with the knowledge and skills they need to tackle challenges head-on, confidently, knowing that their representative body has got their back. I will continue to work tirelessly in the interests of members, making it my business to find out about issues affecting them. My focus will continue to be to ensure that the “member” is at the heart of all the Law Society does. I hope that you will support me in my new role and above all, I hope I do SPG proud. Lubna Shuja Deputy Vice-President of the Law Society SPG Council Member
Get to know the Executive Team LUBNA SHUJA Lubna qualified as a solicitor in 1992. She was a partner in a high street firm in West Yorkshire for many years and then started her own practice in Birmingham in 2007 undertaking mediation, family and civil litigation. Lubna became a CEDR accredited Mediator in 2005, and is dual qualified to conduct both Civil and Family mediations.
persuaded me that a law degree would offer much better options than an English degree (which is what I had a place to do). I got into University to study Law and absolutely loved learning about cases and their application to daily life. The rest is history and I will be eternally grateful to my very dear friend for such wise advice.
Lubna has been a member of the SPG Executive Committee since 2007 and was chair in 2012/2013. She became one of the nominated Council Members for the Group with Ian Lithman in 2013.
2. What is your favourite thing about your career? The people I meet and the stories I hear. Human nature never ceases to amaze me.
Newly elected Deputy Vice-President of the Law Society of England and Wales Luba gives us an insight into why she choose law, what her motivations are and her ultimate go to karaoke song! 1. Why Law? When I was at school, law was not even on my radar as I never thought I could ever become a lawyer. Then I did better in my A level exams than my teachers had predicted, and a good friend
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3. What motivates you? Doing a job well and making a positive difference to someone’s life. 4. What did you want to be when you were a child? An all singing, all dancing star in a Hollywood musical. Until I was told by my drama teacher that I was tone deaf and could not sing! 5. What was your first job? A Saturday job working on a market stall in Bradford.
6. What makes you laugh the most? Being with family or close friends when something silly happens and we end up laughing hysterically for no real reason. 7. If you had a warning label, what would yours say? Liable to start dancing if in close proximity to loud music. 8. What was the last book you read? Eleanor Oliphant is Completely Fine by Gail Honeyman. Highly recommended. Makes you really stop and think. 9. Favourite cuisine? Indian/Pakistani of course! Can’t beat a good curry. 10. What would you sing at Karaoke night? Anything by Wham … actually pretty much anything, except that “sing” is not how others would describe it!
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With the hectic pace of modern life, it's all too easy to lose perspective. Global rates of anxiety, depression and suicide are at an alltime high, but with simple tools these health problems can be prevented and we can become healthier, happier and more fulfilled people. I've taught Classical Hatha Yoga and meditation to hundreds of people across the UK and Europe and in every programme I conduct, around 80% of the participants have come to me because of stress. I always ask the same question 'Why do you do what you do?'. We work to put a roof over our head, to feed our families, maintain a pleasurable lifestyle, seek intellectual fulfilment and enjoy the thrill of career climbing. Ultimately, it always comes back to our sense of wellbeing. So, if we're not well, then why are we doing it? Now I'm not going to try and convince you and that twisting your body into a pretzel every morning is the only way to be healthy. There are a whole number of small and simple things you can do to take responsibility for your wellbeing. Here are a few...
Sleep
We can only work efficiently when we’re properly rested. How many times have you woken in the morning, only to feel like you haven’t slept at all? As many as one in four people now suffer from sleeplessness caused by money worries, health concerns, work stress and strains with relationships. Sometimes it seems as though the mind never stops. If you’re someone who struggles to get off to sleep, or frequently wakes in the night then take a look at Yoga Nidra practices. It’s a simple meditative practice that retrains the nervous system allowing the body to relax fully and the mind to come to a state of ease. Yoga Nidra resets the dopamine levels in the brain and prepares the body for action. There are a variety of free practices online, ranging from 10-20 minutes long. Try it before you go to sleep or when you first wake up in the morning. It also works as a fantastic boost during that mid-afternoon, post lunch energy drop.
Switch it off
We’re all well aware of the negative impact that increased screen time is having on us, and I’ve certainly been guilty
ping e e K
They’re also now commonly available in supermarkets and health food shops. Always opt for unpasteurised and even organic if possible. Another consideration is how we eat. Stop eating at your desk, and best not in front of the television either. Take the time to prepare your food with care, and make more time to sit and eat it.
Get out
W e ll in the past of checking emails outside of work hours. As a Sole Practitioner, it’s vital to give yourself proper down time, away from emails, social media and if you can, any kind of tech at all! Time spent on yourself - your body, mind, emotional and psychological wellbeing - is the most valuable investment you can make. So, set yourself strict work hours and stick to them. When you get home switch off your notifications, put your phone on silent and walk away. If you keep your phone in your bedroom and check it whilst in bed, then stop it. You’ll rest better, your relationships will improve and your attention span will increase.
What are you eating?
Your body is simply an accumulation of the food you’ve consumed. The origin of all disease is inflammation and imbalance. This inflammation starts in the gut, and impacts the entire system. Poor gut health has now been linked to everything from joint problems to anxiety and depression (look up the gut-brain axis). Something as simple as eating a varied whole food diet can have a remarkable effect on the health of both body and mind. Michael Pollan’s In Defence of Food is a fantastic read should you wish to know more. In it he states how we’re increasingly no longer consuming real food, but ‘edible food-like substances’. If you can’t pronounce the ingredients, then best not to eat it. Fermented foods are a fantastic addition to a healthy diet, and help keep your gut microbiota in top shape. Foods like sauerkraut (fermented cabbage) and kombucha (fermented tea) are simple and inexpensive to make at home.
It’s not ground breaking news that spending time in the great outdoors is good for us. But do you do it enough? Forest bathing, or Shinrin-yoku as the Japanese call it, is quite simply the practice of spending significant time in the forest bathing in the highly oxygenated air, breathing the scent of fresh soil and feeling the dappled sunlight through the trees. This isn’t exercise, but just a way to reconnect with reality. I like to think of it as a system reset. Find your closest forest and go there for an hour or so once a fortnight, or more frequently if you can. My favourite is Ashdown Forest in East Sussex. Have you heard of ASMR sounds (autonomous sensory meridian response)? They’re a wonderful thing to integrate into your working day, and give your senses a little taste of being in nature. Choose from forest sounds, running rivers or even heavy rainfall.
Movement
The typical seated office worker suffers from more musculoskeletal issues than those workers who do daily manual labour. Deskbound - Standing up to a Sitting World is a frighteningly informative book by Kelly Starrett, about the damage long term desk dwelling does to our bodies. Make an effort to move around every hour when sat at your desk throughout the day. Do a lap of the office, go outside, stretch your body and make the most of your lunch break to go for a walk. These small changes can make a huge difference to the quality of your life. If you want to commit fully, then consider changing your desk to a standing work space. Having spent six months training at the Isha School of Hatha Yoga in Southern India, I now teach Yoga and meditation for all ages and abilities across the UK, from large corporate classes, to smaller and private sessions. For more information on what I offer please email swayambhuhathayoga@gmail.com Helen Barton
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Small but confident steps on the journey into Cyber Security for Solo legal practitioners The legal sector - an attractive target. The National Cyber Security Centre has identified that the legal sector is a top target for cyber criminals, it is not difficult to see why. Law practices hold large amounts of sensitive and confidential client information, they handle large amounts of clients' money, and they are key enablers in business and commercial transactions. Like most modern business, more and more of legal services are being offered digitally and, coupled with the current climate of remote working, zoom meetings, webinars and using personal devices for work, the opportunities and avenues for cyber-crime have never been greater. Phishing is the most common cyberattack affecting the vast majority of sectors and law firms are no exception. This is so prevalent in areas of practice such as conveyancing that it has even got itself a nickname, 'Friday afternoon fraud'. While Friday afternoon fraud refers to both email and telephone scams, they got the name because they usually occur on a Friday afternoon when staff are at their least attentive. A successful phishing attack that results in someone "clicking the link" can result in Ransomware infecting all connecting IT systems and may also include the cyber criminal accessing or taking your sensitive data. A good reputation is paramount for a legal practitioner and the loss of client information can have a devastating impact on a business that has confidentiality at the heart of its identity. There does seem to be a strong awareness in the legal sector that law firms are high risk targets for a cyber breach and have a lot to lose, yet many practices are not taking sufficient steps towards protecting themselves. What is this gap? Cyber Security is a management issue The majority of law firms are micro, small or medium sized enterprises (SMEs) and, while some do outsource their IT and hope that it also includes their cyber security, many manage it themselves without a good understanding of the basic security controls. A typical lawyer will spend their long training and most of their career learning about law, perhaps only starting to manage more than their own cases when they are put in charge of a team or a department. Managing a practice is often learnt on the job, and in addition to practicing law, involves accounting, marketing, health and safety and now, cyber security.
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Busy putting out fires On any given week, the average law firm is being challenged by a constant flow of anti-money laundering regulations, new solicitor's handbooks, the ever-changing legislation in every area of law and trying to keep on top of the practicalities of implementing all those changes. For example, last year, due to social distancing measures, the videoing of witnessing a will is now acceptable and electronic signatures on a deed are also now acceptable for the purpose of the land registry. Rapidly adapting technology platforms to accept these new rules means that just keeping everything up and running to earn money is always more urgent and always more important than planning to mitigate the threat of a cyber attack. In many of the NCSC meetings and conferences about the legal sector, SSPG members have been the biggest group attending. One reason for that is Sole Practitioners are much more vulnerable to criminal, civil and professional cases against them if there is any breach in Cyber Security. If
about your firm. 5. Train your staff to be aware of the ever changing and increasingly convincing phishing scams. 6. Test your response plans (how would your firm cope if attacked). 7. Encrypt sensitive emails. As a sole practitioner, it is down to you to get your house in order. The price for not doing so could be extremely high. Cyber Essentials is designed as a simple but effective government approved scheme based around the most important, basic cyber security controls. It embodies a strategy by the National Cyber Security Centre to help businesses of all sizes in the UK protect themselves from the growing threat of cyber crime. The scheme is focused around just five core controls which have been proven to protect organisations from 80% of common cyber threats. Many small business owners say that working towards the certification acts as a useful checklist to ensure they have not overlooked anything, and describe the process as highly educational. As a sole practitioner, you may find cyber security overwhelming and complicated and not know where to start. You are not alone. To help join the dots for beginners so they can access the Cyber Essentials scheme, IASME, the National Cyber Security Centre's Cyber Essentials Partner, has created a free online advice tool to help small businesses get started.
you are working on your own, even if you have a limited company status, you are going to be in the hot seat if there is a breach of data protection. What should your Law firm be doing? In her Cyber Security 2020 Update presentation for The Law Society, Jennifer Williams sets out some simple guidelines for Legal firms. 1. Certify the basics, gain Cyber Essentials. 2. Check-out your IT team or provider to ensure they have an understanding of Cyber Security and are embedding it in your systems. 3. Implement DMARC - Domain Based Reporting and Conformance is an email validation system designed to protect your company's email domain from being used for email spoofing, phishing, scans and other cyber-crimes. 4. Much of your cyber security posture is publicly searchable. Find out what criminals can see
Launching at the end of February this year, the Pre-Cyber Essentials Journey will be accessible on the IASME website. By answering some simple questions, you will receive targeted advice about what controls you still need to implement. You will be directed towards the appropriate guidance based on your answers to the questions. Upon completion, you will be able to download an action list and a description of what additional requirements or steps there are still to achieve. Although reaching the level of Cyber Essentials is the end goal, it may be that there are many steps along the way that need to come first. Small spoonfuls of information about Cyber Security will be available allowing you to learn at your own pace. Every time you put an additional control in place, however small, your practice is more secure. IASME Consortium
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The mediation sweet spot “Every dispute has a sweet spot at which it is most susceptible to resolution.” Those were the words of the Master of the Rolls in a webinar given to the Law Society on 28th January 20211. Here are some thoughts about when the sweet spot might be. If you are wondering when the best time to mediate your case might be, why not ask a mediator?
Identifying the sweet spot So, what did the Master of the Rolls mean when he talked about the “sweet spot”. How can we find it? This is all about being clear about what the litigation process can and cannot provide; understanding what mediation has to offer and assessing investment risk, balancing the costs burden of pursuing litigation against the consequences of doing so. In my view the first and most obvious potential “sweet spot” for resolution is following compliance with the pre-action protocol and just before issue. Why do I say this is a sweet spot? Firstly, the legal costs are (relatively) low and no court fees have been incurred. Secondly, the parties are less likely to be entrenched in their views.
it will require the preparation of detailed statements of case and (for the claimant) the payment of court fees. The lawyers will advise, and the clients have to accept, that this is all a necessary part of the litigation process. It is possible that the exchange of statements of case will help to clarify the issues, but as all litigators know, so often a case turns on the evidence, not just the law. It is unlikely that any new evidence will emerge until disclosure and/or exchange of witness statements. If the outcome is likely to depend upon expert evidence some will probably have been obtained already, but the parties may feel that more detailed expert evidence is required. The litigation process is capable of delivering additional information and changing perceptions, but at what cost? At the very least the parties need to consider the following: l what steps in the litigation will give the parties
Finally, it is the right moment to stand back from the detail, review the client’s objectives and address the following questions. l What are the prospects of success (expressed
as a percentage)? l Are there any client objectives which the court
would not be able to provide? l Are there any other limitations on “winning”? l What is a realistic estimate of the likely costs
a better understanding of the strengths and weaknesses of both its own and the other party’s case and of the appropriate range for any settlement? l what investment is required in order to achieve this? l will that investment provide better answers to the review questions set out above? l how confident are they that these steps will be helpful and not harmful?
of going to trial? l What are the full costs and other implications
of “losing”? l How long it will take?
The benefits and risks of further investment Against that background, both parties must decide whether to make a further investment of time and costs and accept that the inevitable emotional drain will continue. The investment may be significant in that
The choice is not just for the claimant to make. The costs penalties of refusing to mediate, at this stage, allow all parties to put pressure on the other to mediate. If either party makes an offer to mediate at this stage it will be a brave opponent who refuses in light of the potential costs penalties. If both parties consider the time for mediation is not right, I recommend that they identify when the (next) potential sweet spot will be. Too many cases settle at the doors of the court after a huge investment in trial preparation costs
because the parties failed to do so. Any case that settles then did not need a judge but could have settled earlier, but the initiative to achieve this earlier through mediation lies with the parties.
Second opinion? As a sole practitioner myself I know that it can sometimes be difficult to step back from the detail. A second opinion on the law and prospects is usually available from specialist counsel. Why? Because they are regularly in front of the judges arguing the latest caselaw and know the way the wind is blowing. As I have said elsewhere, few people understand the astonishing potential for mediation to resolve difficult disputes until they have been involved in the process themselves. Its flexibility can often lead to an agreement which meets the interests and needs of the participants better than a court decision. Therefore, my suggestion is that if you want a second opinion on whether your dispute is at the mediation sweet spot why not ask an experienced mediator! They can also let you know whether mediation might work for your case and how you can make the best of the process. 1The talk (published on the www.judiciary.uk website) was entitled “Reliable data and technology: the direction of travel for Civil Justice”. The comment was specifically about ADR initiatives, including mediation.
Further information For further information please see www.enterpriselaw.co.uk/site/mediation/ www.linkedin.com/in/tonyhughesmediation/ or www.aswm.org.uk Tony Hughes is a practising solicitor, CMC Registered Mediator, Secretary to the Association of South West Mediators, Mediation lead for Rotary District 1100 and mediator mentor and Trustee with Resolve West.
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Council Member‘s Report A REPORT FROM LAW SOCIETY COUNCIL MEMBER LUBNA SHUJA
There is so much to report on since the last SOLO magazine in summer. Firstly, as many of you will already know, I am delighted to confirm that I was elected as Deputy Vice-President of the Law Society of England and Wales and took office at the AGM in October 2020. More about that elsewhere in SOLO! Unfortunately, the pandemic continues and we are now in the middle of the third lockdown with no real end in sight although the vaccine has provided some hope. Remote Council meetings have continued, and it has been another very busy period of continued hard work at the Law Society to support members through the ongoing challenges. Brexit has finally happened but that is by no means the end of the matter for members. The Law Society Council last met remotely on 9 December 2020. I set out below details of the main issues discussed at that Council meeting together with a brief update on developments since then. A copy of the CEO’s report to Council’s December meeting, which contains more detailed information, can be found on our website at www.spg.uk.com.
The 3Rs campaign As indicated the pandemic has continued to be a critical issue for the profession. The ‘Reset, Resilience and Recovery’ campaign has supported members whilst the Law Society has continued to engage with the government on key issues such as the operation of the courts and the status of solicitors as key workers. The Law Society’s new website has been updated with revised guidance on the third national lockdown and what it means for members. If there are any particular issues on which you need further advice or support, please do contact me to let me know.
Covid-19 and Lockdown The Law Society has called for a two week pause of non-custody Crown and magistrates’ court work amid escalating safety concerns in courts. Whilst the Law Society has maintained throughout the pandemic, that it is essential for
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justice to continue to be delivered, the safety of court users and those working within the justice system is paramount, particularly as new strains of the virus are emerging. Due to serious concerns expressed by a significant number of members about safety in courts and the rapid acceleration of transmission, the Law Society has urged urgent be taken in courts to ensure safety and stem the rate of infections. The Law Society has suggested that a two week pause in all non-custody work in Crown and magistrates’ courts will allow measures to be taken to ensure courts are safe. The Law Society published its “Law under lockdown” report on 25th September 2020, in time for the September review of the Coronavirus Act 2020 in the House of Commons. Included were issues such as how access to justice had been affected, eg for those in prisons and other forms of detention, and the extent to which other important safeguards, such as those contained in the Care Act 2014 and Mental Health Act 1983, had been affected by the introduction of temporary easements. The Law Society continues to focus on the next review of the Act in 2021.
Tax Advice Work If your firm does any type of tax advice work, you should have applied to the SRA or another AML Supervisor, such as HMRC, to be supervised for money laundering under the Fifth Money Laundering Directive which amended regulations around the definition of a “tax adviser” to include more activities than before. Areas where tax adviser services may now require registration include litigation, family, employment law, estate planning, wealth management and corporate. Conveyancing and
mergers/acquisitions were already in scope. You should have registered by 10 January 2021 but you can still apply if you have not done so.
Attacks on the rule of law The recent months have been challenging for the rule of law. You will all have read about the comments made by the government referring to “activist lawyers” and “lefty lawyers”. The Law Society objected strongly to this rhetoric and this was widely welcomed by members. The Law Society’s joint briefing with the Bar Council in relation to the Internal Markets Bill was cited many times in Parliament. Submissions were also made to the Independent Panel looking at the future of judicial review. The Law Society set out the minimum standards for any system of judicial review.
Regulation The LSB recently approved the SRA’s SQE application. The Law Society has consistently raised members’ concerns about the impact the SQE may have on equality and diversity in the profession, with stakeholders and is pleased to see further commitments from the SRA in this area. The Law Society has also worked extensively with members to develop a position on the economic crime levy.
Promoting Access to Justice In January 2021, the Lord Chancellor settled a case bought by the Law Society regarding costs assessments which means that solicitors now have the right to have civil legal aid bills between £2,500 to £25,000 assessed by either the Legal Aid Agency (LAA) or by specialist judges, while the LAA consults with the profession on the most appropriate way for legal aid costs to be assessed in future. Previously
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the LAA was seeking to transfer the assessment of bills from the courts to legal aid officials. The government announced its decision following consultation on the “accelerated items” under Criminal Legal Aid Review (CLAR). Expressly as a result of lobbying by the Law Society, the government doubled the fee to be paid for cases “sent” to the Crown Court. Further, in immigration appeals, after the Law Society worked with a firm proposing a judicial review, the MoJ agreed to introduce an hourly rate scheme to replace the new fixed fee scheme until there is a base of evidence showing how much work solicitors reasonably have to do on each case. Following lobbying by the Law Society, the government announced the restarting of the review of civil and criminal legal aid means tests. The review is due to report in Spring 2021 when a consultation will follow. Work continues to seek urgent support to enable criminal legal aid firms to survive. As of 14 December 2020, there were just 1,122 firms holding a criminal legal aid contract, 149 fewer criminal legal aid firms than in 2019 and far fewer than the 1,861 firms that existed in 2010. Fewer solicitors joining the profession are choosing to do criminal law, instead opting for other areas of legal practice which are more sustainable as a career choice.
Brexit The UK-EU transition period ended on 31 December 2020. The UK has left the single market and EU laws no longer apply to England and Wales qualified solicitors. On 24 December 2020, the UK and the EU reached a new Trade and Cooperation Agreement. The Law Society welcomed the Free Trade Agreement, but this is just the beginning of the process as new relationships are built. It affects how members can provide services and how establishments work in the EU area. It will have consequences for areas such as intellectual property law, anti-money laundering and VAT. The Law Society has published country-bycountry guides for nine key jurisdictions, as well as guidance on legal professional privilege in the EU and on intellectual property. Guidance and free webinars are available on the Law Society website explaining the implications for members. The Law Society is working with national governments, bars and law societies across the EU to improve the position for members. It also continues to urge the EU to support the UK’s accession to the Lugano Convention which would allow civil and commercial judgments to be recognised crossborder and allow ordinary citizens as well as small and medium size businesses to enforce their rights without
taking up prohibitively expensive actions in multiple courts. The Law Society is urging early determination on data protection adequacy to come on the tailcoats of the deal to ensure data flows between the UK and EU can continue.
Mental Health Act Following publication of the Mental Health Act White Paper, the Law Society warned that proposed changes to the mental health system must be properly funded to be effective. Reform must be backed up by proper funding to meet the rising pressure on services and to address the poor state of infrastructure in many hospitals to ensure the safeguards for people detained under the Act are sustainable, effective, and enforceable. Data has indicated that black patients are subject to a level of restraint that is three times higher than white British patients. The Law Society welcomed the commitment to develop culturally appropriate advocacy for all ethnic backgrounds and communities.
CQS CQS was launched on Law Society Learning, the new learning management service (LMS). This will offer an integrated and seamless journey for members via a single sign-on, and enhanced training with easy to use modules followed by assessments.
Law Society Connect On 19 October 2020, the Law Society launched an online digital community portal to 5,000 small firm members called “Law Society Connect”. This is a place where small firm members can meet, share best practice, learn from peers, collaborate on common challenges and innovate. If you have not already registered on the new My Law Society, I would encourage you to do so and select “Small Firms” as a network you have an interest in. You will then be invited to join Law Society Connect. There are already well over 250 members and it is a lively portal covering all kinds of topics including work referrals.
Diversity and the profession The Law Society published research which investigated the career experiences of Black, Asian, and Minority Ethnic solicitors working in the legal profession. Full details are on the website. Unsurprisingly, the research found that solicitors from Black, Asian and minority ethnic backgrounds are twice as likely to be sole practitioners. Other key findings were that in small firms, almost a quarter of all solicitors are from Black, Asian and minority ethnic backgrounds but just one in 10 solicitors are from a Black, Asian or minority ethnic background in the largest firms. Also, retention rates for Black, Asian, and Minority Ethnic solicitors are particularly low in larger City firms and many Black, Asian, and Minority Ethnic solicitors feel that they have to
work much harder than their white counterparts and do not feel as comfortable in their work. They also experience slower career development and a significant pay gap. The report published clear recommendations for firms with the aim of improving equality and inclusion in the profession. The Judicial Diversity Forum, of which the Law Society is a member, worked on the publication of the “Combined Statistical Report” in September 2020, looking at diversity both within the judiciary and in the profession that provides the pool of applicants for judicial appointment. The Law Society continues to press the Forum on the data and analysis that is needed to understand and address the reasons why diversity is not improving as quickly as it should.
International The Global Legal Centre campaign continues to focus on specific audiences, promoting England and Wales in the ‘Jurisdiction of Choice’ report to key stakeholders in target areas. The international team continue their strong work on market access in Africa. Evidence was also submitted to the Lords International Agreements sub-committee on the negotiations with the US, Japan and Australia, as well as general trade asks for legal services.
Member Ballot As you will be aware, the Law Society AGM approved proposals for the reform of Council and the introduction of a term limit for Council members. Both of these matters were subsequently voted on by a ballot of all members. The results were announced on 11 January 2021 and confirmed that the majority of those who voted were in favour of the reforms and the term limit. This now means that there will be some changes to the constitution of Council, including in a number of geographical areas, and also that the term of Council Members will be limited to 12 years. Please do have a look at the new Law Society website and register on My Law Society if you have not already done so. Please also follow me on LinkedIn to keep up to date with Law Society work. If you would like any further information on Law Society activities, or wish to discuss any issues affecting sole practitioners, or indeed, if you would like me to raise any matters with the Law Society, please do not hesitate to contact me on info@legalswan.com or on 0121 551 7866. Lubna Shuja Deputy Vice-President of the Law Society SPG Law Society Council Member Chair of the Law Society’s Membership and Communications Committee Member of the Law Society Board 23 January 2021
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The Compliance Year Ahead Following on from our review of the October PII renewal season, we wanted to share some thoughts on what 2021 might bring for sole practitioners. Firstly, with the help of one of our risk managers, Amy Bell, we will be providing some strategy guidance in regard to your compliance plans for the year ahead. While we do not have a crystal ball to predict the future, we will also do our best to provide an overarching view of what the next few months may hold for the insurance market. The disruption caused by Covid-19 has meant compliance plans being pushed back for the majority of practices, who have naturally focussed on maintaining financial stability throughout the pandemic. Going forward into this year, it is important for practices to reprioritise compliance plans, putting into action any items that were delayed from 2020. At the end of last year, the long-awaited Brexit deal was finally announced. While this will only impact a small number of practices, it is important to note that the registered European Lawyer (REL) regime has now ended, with the exception of Swiss lawyers. Everyone will now become a registered foreign lawyer (RFL), unless they have opted out. If you have solicitors working with you, it is worth ensuring that your staff are on top of this. The Legal Sector Affinity Group is expected to publish new AML guidance this year with some significant changes anticipated. We would recommend reviewing your policies and procedures, while also ensuring adequate training is arranged. As we head towards the end of the first quarter, financial crime must be seriously considered for all, but in particular for those undertaking conveyance. With the stamp duty holiday deadline looming, fraudsters will be anticipating a higher number of transactions than usual which they will no doubt look to exploit – so be vigilant. Throughout the summer, you should ensure that your website, if you have one, is updated in line with transparency rules. Ensure that staff, fee rates and timescales are updated to reflect the current position. Do not promote something on your website that you do not do, or do not intend on doing. PII underwriters will look at your website, and cross-reference this with your presentation, and any discrepancies will be viewed dimly. In the best circumstances, questions will be raised. More commonly, insurers will simply decline to offer terms on the basis of non-disclosure. Covid-19 has played a big part in slowing down
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responses from some third parties. We would recommend undertaking an annual review of your policies and procedures with regards the SRA standards and regulations from two years ago. Finally, Amy Bell has provided a list of issues which should be covered in your risk register, which would be ideal to review in the latter stages of 2021, including: Covid-19 impact Complaints and claims, identified trends from file audits, and supervision BCP review The year ahead: What are your audit and training plans?
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Lockton client toolkit We have previously communicated many policy enhancements for sole practitioner clients that we negotiated from insurers. However, we always considered our approach to be consultative in nature and have therefore put together a client toolkit. The toolkit has been developed in partnership with Teal Compliance, who are specialists in law firm compliance, to help our clients employ bestpractice risk management solutions. Divided into relevant topics, the toolkit covers the following issues and will evolve over the coming months: Main causes of claims Managing compliance Financial crime Data protection
• • • •
While this is exclusively available to clients of Lockton through the unique client portal, please speak with your Lockton representative if you have any questions on it. I’m sure they will welcome the opportunity to discuss further. Gazing in to the crystal ball In general, sole practitioners were perhaps more Covid-ready than many larger organisations, and have coped better with the working from home mandate. In light of this, I would hope that the fee growth trend we identified for sole practitioners in 2020 continues into 2021, whereby fee growth in percentage terms continues to outperform other size segments of the legal profession.
be a very busy first quarter of the year, with the onus expected to fall on each firm to evidence their reaction to increased workloads. Severity of claims has increased, so those undertaking what is perceived as ‘higher-risk’ or even ‘higher-value’ work are likely to experience greater scrutiny. For sole practitioners, the future may not be as bleak as it seems. You remain attractive to insurers, with a small number identifying SPs as an area for growth, but at the same time, we urge you not to be complacent. Our advice to all firms is to start the process earlier than you ever have done, invest more time than ever in the renewal process, select your representative carefully (engaging with them early), and evidence (through a covering letter to accompany your proposal form) your attitude towards risk management. Despite the global uncertainly, 2020 saw a rise in new start up sole practitioner enquiries, perhaps as result of the challenges experienced by solicitors at larger practices. We expect more solicitors to consider becoming sole practitioners or freelance sole practitioners in the year ahead. We do not envisage that commencing life as a freelancer will become any easier in 2021. There is very limited appetite from the market compared to the number of insurers (12 or more depending on your risk profile) for traditional sole practitioners. Until we see improved engagement with the regulator, who may currently have other priorities, we expect no immediate change to this situation. It may not happen in 2021, but we do expect that cyber insurance cover will be excluded under the SRA’s minimum terms and conditions sometime in the not so distant future. This will almost certainly be the case for any first party coverage that may currently be inadvertently provided. If you can, it might be wise to look at either enhancing your existing coverage, or obtaining a separate cyber policy so that you can appropriately budget for this eventuality. If you would like us to expand on any of the above or for further assistance with your PII renewal then please speak to any of the Lockton team who will happily help. Best wishes and stay safe.
Turning to Insurance, it has been well documented in both the insurance and legal press that the market is hardening. We expect this trend to continue throughout 2021. Conveyancers will experience greater scrutiny over their management of what is expected to
Danny Seaman Lockton Solicitors solicitors@uk.lockton.com 0330 123 3870
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FORENSIC EXPERTISE WHEN YOU NEED IT KEITH BORER CONSULTANTS CELEBRATED ITS 40TH YEAR IN BUSINESS IN 2020. SINCE DR BORER’S INVOLVEMENT IN CRIMINAL TRIALS IN THE VERY EARLY DAYS, THE COMPANY HAS GROWN TO A TEAM OF 45, INCLUDING FORENSIC EXPERTS, CASEWORK LOGISTICS SUPPORT, ACCOUNTS AND MARKETING.
DIGITAL FORENSICS Downloads from mobile phones, messaging apps and social media platforms can help piece together conversations between two parties. This might be useful in family law disputes or cases of harassment. Digital forensics can also be useful in employment disputes.
BENEFITS OF INSTRUCTING KEITH BORER CONSULTANTS
QUESTIONED HANDWRITING AND SIGNATURE ON A WILL
KEITH BORER CONSULTANTS’ COMMITMENT TO YOU
✔ We prepare reports in criminal, civil, family, disciplinary, review and private matters ✔ We have collective expertise across the full range of forensic science disciplines ✔ All staff are employed directly and not a network of outsourced consultants ✔ Experts undertake regular training and competence assessments ✔ All reports are peer reviewed by a second scientist ✔ Our dedicated admin support team are on hand to help progress cases and keep you informed ✔ Robust quality systems ensure consistency and high standards
The executors had concerns about the content of the will and the wishes of the deceased. Gathering samples of the deceased person’s natural handwriting and signature was the focus in this case – greetings cards sent to friends and family and entries in her wall calendar were useful, as were documents collected from local authorities.
With Keith Borer Consultants you get peace of mind knowing that your cases are in secure hands under a single umbrella. Our scientists are available to answer questions and discuss approaches to cases. We often work to tight deadlines and will provide a detailed estimate of costs, within existing Legal Aid rates, as required, with timescales set out clearly to assist progression of your case. If you have any concerns about one of your cases, then why not get in touch by phone or email for an informal discussion.
As a high street law firm, you are likely to be the first point of call for many people, who may never have needed more than a conveyancing solicitor. Our experts have been instructed in many cases that may strike a chord with your work. For example:
SIGNATURE ANALYSIS IN FRAUD CASES Recently, our handwriting team were asked to look at a mortgage application. A lady’s signature had been forged by her ex-husband. She knew nothing about the case until the loan company contacted her regarding overdue payments. Samples of the lady’s genuine signature were collected for comparison purposes.
MALICIOUS COMMUNICATIONS IN LOCAL AUTHORITY CARE CASE Alleged love letters were sent to the mother as an attempt to paint her in an unfavourable light, by implying she had a number of partners or admirers. The handwriting evidence showed conclusively that her ex-partner, the child’s father, had written some of the documents in question.
DRUGS ANALYSIS IN A FAMILY LAW MATTER There was a condition in a Child Arrangements Order that the mother must not take drugs. We were asked to examine a syringe. Not only were drugs detected, but blood in the syringe could be linked through DNA profiling to the mother, and the date of manufacture of the syringe could be determined with the manufacturer’s help. A definitive answer for the Family Court.
ABOUT THE AUTHOR
CONSIDERATION OF MEDICAL CONDITIONS AND TOXICOLOGY RESULTS A father had psoriasis and we were asked to consider whether or not this would cause his hair to grow more slowly – and therefore traces of drugs could be detected in his hair for longer – rather than the allegation that he had breached a Child Arrangements Order by taking drugs.
VEHICLE AND LOCUS EXAMINATION IN FATAL ROAD TRAFFIC COLLISION We were asked to review textile fibre evidence in a fatal collision where the defendant claimed to be the passenger rather than the driver. Fibres recovered from both front seats were compared with clothing worn by both parties. Other similar cases have involved DNA evidence from saliva on airbags, CCTV evidence from street cameras, or dashcam footage from the vehicle in question or those nearby. Our RTA team can produce drive through videos, as well as maps and plans, as part of their reconstruction of an accident scene (locus).
Dr David Schudel is a Senior Manager and Forensic Scientist with Keith Borer Consultants. He specialises in Cell Site Analysis, Fire Investigation and other aspects of forensic chemistry. For the full list of forensic services offered by Keith Borer Consultants, please see: Globe keithborer.co.uk PHONE 0191 332 4999 envelope kbc@keithborer.co.uk
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Bell vs Tavistock: Does informed consent stand in the way of autonomy? Dr Neil Sullivan
In a landmark court case, judges ruled that children under 16 years of age could no longer be prescribed puberty blockers unless this has been authorised by the court. The reason: under 16s are not likely to be competent enough to “understand and weigh the long-term risks and consequences of the administration of puberty blockers”1. The judgement did not stop there, though. It also ruled that where persons over 16 years of age are involved, “clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment”. The legal challenge was brought against the Tavistock and Portman NHS Trust in London. One of the claimants was Keira Bell, who was prescribed puberty blockers at 16 by the Trust’s GIDS (Gender Identity Development Service) clinic, but later regretted transitioning2. The High Court ruling was not quite the outcome people expected and, naturally, led to a polarised reaction. While some welcomed it as “a victory for common sense”, others were concerned it would curb young trans people’s rights3. The issue of informed consent was a fundamental part of the judges’ final decision. However, it also begs the question: Could informed consent stand in the way of young individuals’ autonomy over matters regarding their health? In medicine, informed consent has been a cornerstone for a long time. It rests on the principle that patients need to understand the possible consequences of their decision, prior to agreeing to or refusing certain treatment. It is “permission granted in the knowledge of possible circumstances”4 rather than a simple “permission for something to happen or agreement to do something”5. In DNA testing, too, we must have “appropriate
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and qualifying” consent for each sample to be tested. Consent is required from each adult party that is to be tested. If the test involves a child under 16, then consent must also be obtained from a person with Parental Responsibility for that child. This is where it gets interesting: if the mother were under 16, she could give consent for her child to be tested. However, someone with Parental Responsibility for the mother would have to consent on her behalf for her own sample to be collected...which is a fascinating paradox we shall go back to in another article! Although in the Bell vs Tavistock case treatment with puberty blockers would not be undertaken solely on parental consent, it was argued that “if the child’s consent was rendered invalid, the treatment would continue to be lawful if the parents had consented.” Case law offers a mixed bag of conclusions on that matter. In Gillick vs West Norfolk and Wisbech Health Authority [1986], the House of Lords reached a majority that a doctor could lawfully give contraceptive advice and treatment to a girl under 16, without the consent of her parents6. But this could only be done if she demonstrates sufficient maturity and intelligence to understand the nature of the treatment. In Re W (a Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam.64, the court ordered that a girl under 16, who was suffering from anorexia nervosa, be transferred to hospital specialising in eating disorders7. This was against the girl’s wishes. Although she was considered to have sufficient intelligence and understanding to make informed decisions, it was ruled that she should still receive treatment. The court emphasised that due to the nature of anorexia nervosa the patient does not wish to be cured but fulfilling such wishes could lead to severe consequences or even death.
Unlike contraceptive treatment and anorexia or even DNA testing - not enough is yet known about the long-term effects of puberty blockers. This arguably makes achieving informed consent almost impossible both for parents and children, as the information given to either party would not be exhaustive. Therefore, it is not only the patient’s age that impacts on their ability to make an informed decision - it is the quality of the information, too. Clinicians must not be blamed for this, however, since they can only provide what is currently available from research and the literature. Every scientist would agree there is always more to explore on any topic, but when the knowledge gaps about a treatment are so significant, access to it should be regulated with the utmost strictness. Of course, age cannot be entirely ignored either. Adolescents’ ability to assess the long-term consequences of certain treatments may come under scrutiny. A child’s experience of gender dysphoria must not be invalidated, but when the remedy could have irreversible effects on a person’s fertility and sexuality – experiences someone under 16 may not have been through yet – deciding whether such medication should be prescribed must not be rash or emotional. With that being said, young people’s ability to make decisions regarding their own health must not be taken away from them. However, institutions also have a responsibility to safeguard children’s wellbeing and step in, if and when absolutely necessary. It is a delicate balance to strike and an individual approach would be required in each case. But when the consequences are likely to be very serious and much remains unclear about the long-term side effects of a treatment, the informed in “informed consent” can become elusive and further scrutiny is required to protect vulnerable children.
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About the author: Dr. Neil Sullivan is General Manager of Complement Genomics Ltd (trading as dadcheck®gold). The latter is a company accredited by the Ministry of Justice as a body that may carry out parentage tests as directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969. Please see: www.dadcheckgold.com Tel: 0191 543 6334 e-mail: sales@dadcheckgold.com Puberty blockers, also known as hormone blockers, are used to delay puberty. They supress the release of sex hormones, including testosterone and oestrogen, and stop the body from developing breasts, periods, facial hair or deeper voice8. The medication is prescribed to young people experiencing gender dysphoria, as well as to treat premature puberty in children. It is described as physically reversible, if stopped, but it is not known what the psychological effects may be. It is also unclear if puberty blockers affect the development of the teenage brain or children’s bones9.
Gender dysphoria is a “sense of unease that a person may have because of a mismatch between their biological sex and their gender identity”10. It could be so intense that it leads to feelings of depression and anxiety. According to the NHS, other signs of gender dysphoria include low self-esteem, becoming withdrawn or socially isolated and taking unnecessary risks11.
1 Bell -v- Tavistock judgment (judiciary.uk) 2 Puberty blockers: Under-16s 'unlikely to be able to give informed consent' - BBC News 3 Puberty blockers ruling: curbing trans rights or a victory for common sense? | Society | The Guardian 4 Informed Consent | Definition of Informed Consent by Oxford Dictionary on Lexico.com also meaning of Informed Consent 5 Consent | Definition of Consent by Oxford Dictionary on Lexico.com also meaning of Consent
Transgender describes a diverse group of people whose internal sense of gender is different to the one they were assigned at birth. To attain transgender status in the law, an individual must be diagnosed with gender dysphoria by a professional and then apply for a gender recognition certificate under the Gender Recognition Act, 200412.
6 UK, Gillick v. West Norfolk and Wisbech Area Health Authority (hrcr.org) 7 Re W (A Minor) (Medical Treatment) - PubMed (nih.gov) 8 What are puberty blockers? - BBC News 9 Gender dysphoria - Treatment - NHS (www.nhs.uk) 10 Gender dysphoria - NHS (www.nhs.uk) 11 Gender dysphoria - Signs - NHS (www.nhs.uk) 12 Gender Recognition Act 2004 (legislation.gov.uk)
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THE NEED FOR DIGITAL TRANSFORMATION IS A NECESSITY John Espley, CEO of LEAP UK, the legal practice management software provider, puts forward the case that the pandemic has created an opportunity for Sole Practitioners to improve their systems by becoming more agile and therefore offering a better service to their clients. At the start of the pandemic many law firms were still over reliant on old and traditional systems and methodologies, relying on paperbased systems and face to face contact. COVID created an immediate need for new software solutions to ensure business continuity for law firms, which required a smooth transition and the right tools for solicitors to work efficiently. Many practitioners have used any downtime created by lockdown to turn to new ways or working. Investing in new technology and new procedures that will help overcome the challenges that have arisen coming in and out of lockdown. Many law firms have found this an exceptionally busy time, with a noticeable spike in conveyancing instructions in part due to the Government’s stamp duty changes, and also in areas of family law. This has also provided an incentive for firms to reinvent themselves, putting new processes in place, and investing in the right technology to enable a digital working environment. Digital transformation has become a necessity for law firms, and the speed of its adoption has been accelerated by the pandemic. Changes that may have taken years to implement have occurred in months: such as the courts now accepting digital bundles and the Land Registry allowing digital witnessed signatures. For those firms that have been agile and become more digital, it has created an opportunity for them to improve their brand’s standing showing less reliance on
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an old paper-based system so boosting confidence amongst customers. Cloud technology is by no means new, but it has become a game changer in terms of enabling the same productivity when working remotely. Cloud-based practice management software is empowering legal professionals to work anywhere at any time from any connected device. LEAP has been committed to developing software that supports small law firms, and has fast tracked the implementation of a number of services, such as a 24/7 help desk, and the earlier integration of teams to help clients collaborate remotely. For a firm to become more agile and benefit from the changing landscape, there are a number of points to consider: the pandemic as an opportunity CHECK-CIRCLE Use
to transform to a digital firm, and so increase efficiency by investing in the right technology CHECK-CIRCLE Upskill your team and provide them with the right tools. For example, make it easy to get access to legal guidance which can be harder to find when working remotely CHECK-CIRCLE Be more accessible to your customers, digitalising the client journey from enquiry to instruction tools that aid the collaboration CHECK-CIRCLE Introduce on documents with clients digitally, and share via a secure portal CHECK-CIRCLE Accept online payments and improve cash flow. The pandemic has created this opportunity for law firms to become more efficient, more agile and more in tune with their clients.
About LEAP UK LEAP is a cloud-based practice management system with integrated time recording, billing and client accounting. LEAP has been developed specifically for small to medium-sized law firms. The software’s powerful features allow fee earners and legal support staff to manage their matters more efficiently and profitably from anywhere, anytime and from any device. With an investment of more than £8m each year into research and development, LEAP continually strives to deliver a product that meets the demands of its users. This ensures that law firms using the software benefit from affordable, yet highly innovative technology. LEAP simplifies a law firm’s IT infrastructure and provides a worldclass system for lawyers and staff to work from home. Currently supporting over 2000 law firms across the UK and Ireland to streamline their practices, LEAP has offices in London, Manchester, Brighton, Edinburgh, Cardiff, Belfast and Dublin.
www.leap.co.uk
The road to conveyancing success.
From initial ID checks to post-completion tasks, and a strong focus on compliance throughout, the conveyancing journey has never been simpler. Along with our years of property knowledge and bespoke service, we’ve got conveyancing covered!
Geodesys. All you need to know. Call 0800 085 8050 Email customer.services@geodesys.com
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The 3 Step Growth Accelerator Plan for Small Law Firms (That Will Work Even During Lockdown) It's still possible to get new clients, and increase your fee income and profits from existing clients, during this lockdown. Individuals and businesses still need your help, maybe more than ever. But you can only help them if you can: (a) a ttract them to your firm (rather than them going to your competitors); (b) c onvert them into paying clients (at the right fees); and (c) d o the work profitably so that you can continue to pay your team, your overheads, and yourself. If you want to grow, then all these three elements need to be working efficiently in your firm or practice. If any one is missing or underperforming, you'll be on a downward curve. But here's the most important thing... As everything around us continues to change, we must change too. Which means you need to adapt the way you attract and convert new clients, and how you maximise profits from existing clients, to the current situation. This involves a 3 step process: analysing the needs of your firm or legal practice, identifying what you should adapt, and then making the right changes.
STEP 1
Identify where you are on the Practice Growth Scale and where you want to be
The Profitable Practice Scale measures two key indicators: your incoming work (client instructions) and your profits. Where are you on this Scale, and where do you want to be?
Your answer will tell you which strategies will enable you to grow. At the lower levels of the Scale, marketing and conversion strategies should be your priority because you need to attract more client enquiries and convert them at the right fees. But as you progress up the Scale the ‘maximise’ strategies become critical because you’ll want to increase the value of each client so you can boost your fee income and profits without constantly needing new clients.
STEP 2
Assess what's stopping you from moving up the Practice Growth Scale
If you're not getting as many clients as you want, or are working too hard for the income you're making, it's highly likely that at least one of the 3 Essential Elements of a successful practice (Attract, Convert, Maximise) is not functioning properly in your business. You can assess this by applying a traffic light rating to each element to see if it's red (not getting the results you want), amber (on 'go slow' or costing too much time and money) or green (getting the right results at an acceptable investment of time and money).
The important thing is to install the right Accelerators into your firm or practice, in the right order. Otherwise you risk wasting your time, energy and financial resources and will still have red or amber lights slowing you down or stopping you from achieving your goals.
Where do you currently have red or amber lights?
STEP 3
Apply the right 'Accelerators' so you can turn red and amber lights to green (and increase clients, fee income, and profits) To accelerate getting to a green light in each area you can install specific 'Accelerators' into your practice. Think of these as projects or strategies that you need to implement. Which ones are right for you will depend on what your firm needs most. For example: f you don’t have enough enquiries from ideal › Iclients, you may need the Accelerator called ‘Magnetise Clients’ which means using the right kinds of marketing to attract them. If you find that potential clients are pushing back on your fees, you need a way to ‘Neutralise Price Resistance’ which involves asking the right questions and saying the right things so clients can see the value of your services. If you find you’re working hard but not seeing the financial results you want the answer may be the Accelerator called ‘Mine The Client Gold’ which will enable you to get more instructions from existing clients.
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Depending on where you are on the Profitable Practice Scale, and where you have ‘red’ or ‘amber’ lights, you may need some or all of these three Accelerators. You’ll likely need others too – there are nine Accelerators which will benefit most firms or practices.
You can get more help identifying exactly what your firm needs in order to have more clients, fee income, and profits in one of my free online planning sessions. Register at: www.thebusinessinstructor.com/plan
ABOUT THE AUTHOR Michelle Peters (The Business Instructor) is a former practising solicitor and the creator of the Profitable Practice Programme for sole practitioners and small firm owners who want more clients and to increase their profits without working more hours. In addition to working privately with lawyer clients, Michelle frequently runs webinars and workshops to help lawyers identify what is slowing them down from having more of their ideal clients and higher profits, and what to do about it. Michelle is also the author of the No.1 Best-Selling Book ‘The Client Magnet Strategy for Lawyers’ which is available on Amazon, or you can download the first four chapters FREE here: www.thebusinessinstructor.com/book
PROFITABLE PRACTICE GROWTH SECRETS
VIRTUAL WORKSHOPS FOR SMALL LAW FIRMS Discover the secrets to attracting more of your ideal clients and increasing your profits (even in a difficult economy) DURING THIS POWERFUL 1 DAY WORKSHOP YOU’LL LEARN: The 3 Critical Factors that limit the growth and profitability of most small legal practices and how to overcome them The 3 Essential Elements of a Profitable Practice and how to put them to work so they do the heavy lifting of growing your practice (and you don’t have to work harder) The secret 3+3 Formula for Profitable Growth that means you double your profits without doubling your clients
The 9 ‘accelerators’ you can install into your practice to attract and convert more of your ideal clients and increase your profits without working more hours How to create a Profitable Practice Gameplan to take what you’ve learned from the workshop and turn it into a strategic plan to achieve your practice growth goals in the next 12 months
N E W D AT E S A D D E D TO H E L P F I R M S
P R OT E CT T H E M S E L E V E S F R O M
T H E I M PA CT O F C O V I D - 1 9
“Michelle’s workshop brought home just how much impact she can have on a firm’s profits. One of her tips transformed my client conversion rate from 4/10 to 8/10.”
BOOK NOW FOR EARLY BIRD PRICES
Jay Sahota, Senior Partner, Jarmans Solicitors
L I M I T E D S PA C E S
These workshops are presented by former practising solicitor Michelle Peters To find out more information about the workshops and reserve your place, visit:
W W W. T H E B U S I N E S S I N ST R U CTO R . C O M / V I R T U A L - W O R K S H O P
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Revised Anti-Money Laundering Professional Guidance now in force The SRA, acting in conjunction with all of the other legal regulatory bodies in the UK as part of the “Affinity Group”, has now published its updated professional guidance on how those affected by the Money Laundering Regulations must ensure compliance with them. Noticeably longer and more detailed than the previous guidance, the clear message is that compliance is not optional, and that ignorance of what is now required of firms will not stand in the way of regulatory, and quite possibly, criminal sanctions. There is an important cautionary note here if you are one of those many sole practitioners who regard themselves as being outside the scope of those that need to comply with the Regulations. The position here changed some 12 months ago when the Amendment Regulations took effect, mostly in order to give effect to the Fifth EU Directive. One of the more significant changes made then was to the definition of who would be regarded as being a “tax adviser”, and as explained by the SRA in their guidance note from late last year1. The revised definition is now described by the regulator as being “broad” and extending “beyond providing advice and includes assistance and material aid”. The net effect of this is that even if the firm excludes liability for questions of taxation in the work that it undertakes it will still now be regarded as being a tax adviser if, for example, it advises a client that there are possible tax implications to what is being planned and suggests that the client should seek specialist help on the issue from elsewhere. This may well mean that sole practitioners in such areas as family or employment work may now be seen to be regulated firms, and
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so will need to ensure that the regulatory requirements are now being met. For the most part the revised guidance does not change the regime that those who have been regulated for some time will be familiar with. Rather, it provides more guidance on some of the more troublesome elements that have been part of the regime for many years. Still, however, the main practical problem is that there is no one standard approach that will guarantee that all firms are compliant with what is now expected of them. The levels of funds that might seem
standard in large commercial departments are quite likely to seem anything but for a specialist commercial law adviser more used to lower value transactions. For this reason the importance of the firmwide risk analysis exercise that is required by r.18 of the Money Laundering Regulations and its importance in shaping each firm’s individual AML policy and procedures is again stressed. The risk assessment process is explained in more detail at section 5 of the new note and should probably now be seen as the first very clear “to do” item for those firms subject to the regulations. You should set out to undertake the review of your “Policies Controls and Procedures” as now required by section 5. This is also likely to be a timely step since it is now just over a year since the SRA demanded of firms that they should certify to them that they had undertaken such a risk assessment, and since the need to keep
this under constant review is stressed the review should be seen as the first step to take now in a review of each firm’s policy and procedures. Throughout the revised guidance there is a greater degree of explanation on the various aspects that have long formed part of the overall AML regime, such as the attempt made to clarify the operation of the law of privilege in the reporting of suspicions to the National Crime Agency. Elsewhere there are also updates covering other provisions which have taken effect since the last edition of the guidance note appeared in 2019. Amongst such content see those dealing the requirements of BOOMs (beneficial owners, officers and managers) at 4.2.1-3 and the new section 7 on technology. It is recognised that checking the identity and address details of individual clients without having met them in person has now become more commonplace, but that technological advances can serve to reduce the increased risk of not being able to do so. Finally, private client lawyers in particular should note the relatively new provisions on the registration of taxable trusts at section 12.4. In summary, the challenge now is to ensure that the necessary systems are not just in place, but that they are also proving to be effective. In the meantime law firms large and small can expect greater regulatory attention in this regard, and a less sympathetic response when problems arise. 1
“Tax adviser guidance”: 23rd November 2020
Matthew Moore is a solicitor and one of the directors of Infolegal Ltd which provides compliance support on this and other regulatory topics: mattmoore@infolegal.co.uk.
Is your regulatory compliance an uphill struggle?
Coping with ever more complex and onerous regulatory requirements can be difficult. Infolegal is here to provide you with the help that you need. Created by lawyers for lawyers, and with sole practitioners and sole principals very much in mind, the Infohub from Infolegal provides a cost-effective, online information hub that makes day-to-day compliance easier and more manageable for everyone. The Infohub provides a range of precedents, information and online resources to allow the sole solicitor to keep up-to-date with regulatory requirements and deal with compliance on a day-to-day basis. It includes: A draft office procedures manual, with separate versions for sole principals and sole practitioners, that covers everything required for Lexcel, CQS and Legal Aid compliance including checklists showing how those requirements are met. A series of training modules that can be used by everyone within the firm dealing with topics including AML, Data Protection, Conflict and Confidentiality and Financial Crime to name but a few. Guidance notes and factsheets covering the main areas of compliance supported by a monthly compliance bulletin to keep you up to date with key developments. Precedents, policies and draft materials to help you to manage compliance within the firm. Compliance checking tools that allow you to demonstrate firmwide compliance for Lexcel and CQS or to help secure competitive terms from professional indemnity insurers. Systems to carry out risk assessments, record regulatory information such as key dates, undertakings and training records, store practice information and support staff members working remotely. Membership subscriptions start from as little as £60 per month, can be paid annually or monthly* and provide access for everyone in the firm to use the resources either on their PC, tablet or mobile phone. (*based on size of practice and on a minimum term 12 months)
To find out more about how Infolegal can help your firm stay compliant
Call us on 0203 371 1064 Email us at enquiries@infolegal.co.uk Visit us at www.infolegal.co.uk
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The Pandemic Effect: The Outsourced Transcription Provider as a Resource Dictation versus typing
The pandemic, and subsequent lockdowns, hit many law firms hard. As a result, this has made firms re-evaluate business continuity planning, and to look at what efficiencies can be made to improve the bottom line.
The simple fact is we can all speak considerably faster than we can type: “The average person types between 38 and 40 words per minute” i; and a “good rate of speech [for dictation purposes] ranges between 140 -160 words per minute.” i i
Do you really have time to type?
These statistics show that simply dictating a document/email, is approximately four times more cost effective than typing. Add to this formatting and editing, this cost saving could stretch further.
As a sole practitioner you have to provide great service as well as spending time driving your business forward.
Taking typing out of the mix allows practices more time to concentrate on increasing chargeable hours, whilst leaving more time to deal with WIP, release valuable lock up, social media or marketing.
An immediate fix One aspect that has been in deliberation for many years is fee earners typing their own documents and emails. Consider the following: Did you know that a Grade A Solicitor (at £409 per hour) who spends two hours typing their own documents/emails could lose their firm (after the deduction of transcription costs) up to £570.30 in chargeable time? Similarly, a Grade D Solicitor (at £138 per hour) could lose their firm up to £163.80.*
You will find that outsourcing your typing needs are considerably cheaper than direct employment (i.e. salaries, NI contributions, leave, unproductive time, sickness absence etc.). Outsourced transcription also enables fee earners to work remotely and dictate on the go, without the need for specialist equipment or software licenses.
They also provide a great business continuity solution to enable law firms to access typing support that expands (or contracts) with your firm’s specific needs on a pay-as-you-go basis.
Testing the theory Some of the more established transcription companies have smartphone apps that allow you to dictate direct from your mobile phone allowing you to trial without purchasing any equipment.
Why not take five minutes of your time to investigate? *Based upon court approved rates for London. Typing costs deducted using OutSec’s standard rate.
Citations: https://www.livechatinc.com/typing-speedtest/#/ https://clearly-speaking.com/what-is-theideal-rate-of-speech/
R FOR L OFFE S SPECIALO READER SO
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Allow fee earners to concentrate on chargeable hours rather than typing emails, file attendance notes, amending documents and frees time to release valuable lock up. Enable fee earners to dictate from home, from the office or on the go, by using the free OutSec app for iOS and Android.
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OutSec have been providing transcription services to the legal profession since 2002. At OutSec we take data security and confidentiality very seriously, which is why we employ bank level security and are ISO27001 and Cyber Essentials certified.
WITH OUTSEC there are no contracts, no monthly fees or minimum charges. You just pay per minute of dictation.
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OutSec Services Ltd is registered in England under company number: 0971874. VAT registration number: 787 5316 85. Registered Office: 7A Corn Exchange, Market Place, Swaffham, Norfolk, PE37 7AB.
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Conveyancing Issues for 2021 Given high workloads and ever more demanding clients, the idea of putting aside some time for training might be far from most people’s minds. Current exceptional circumstances mean that face to face training is now also a thing of the past, but there are several training opportunities that enable conveyancers to ensure that they are up to date with developments in law and practice. WHAT IS AVAILABLE: n Free Resources: There are a number of websites containing valuable information such as the Leasehold Advisory Service and Leasehold Knowledge Partnership. There are also less well-known sources and resources such as the Property Litigation Association, Property Protocols and the City of London Law Society. n Barristers Chambers: Just about every property or chancery set in the country publish articles and papers on topics relevant to transactional property lawyers. n Local Law Societies provide cost effective training, and most are now delivering training on web-based platforms. Several local law societies I deliver training for have embraced the idea of providing one-hour training sessions that are useful, informative and provide flexible learning opportunities for their teams. n Title Indemnity Insurers and Search Providers are sponsoring training webinars and so courses can be provided at no cost on a regular basis. Stewart Title, Searchflow and Index, with whom I regularly work, provide training webinars for conveyancing customers and the profession at large. I have recently been involved in two webinars that concentrate on key case law and the issue of restrictive covenants where the lawyers involved and myself have examined the cases to explore the practical implications of the issues involved. High delegate numbers in attendance provide testimony to the value of the training provided. Webinars are generally recorded and so are available to view after the event. n Traditional resources such as the Law Society Gazette and Estates Gazette should not be overlooked and more recent publications such as Todays Conveyancer bring current issues and age-old problems into focus. n Training providers such as my own company, IQ Legal Training, are geared up to provide webinars from thirty-minute snapshots on key topics, to half or full day online training events. By utilising online technologies, such webinars can be far more interactive than you might expect. n In addition to ensuring that you keep up to date and informed with the latest developments and industry trends, you might consider training opportunities for your support staff. IQ Legal Training offers training courses for secretaries, paralegals, and trainees, that are delivered regularly throughout the year. We provide 12 one-hour webinars, taking delegates through the conveyancing process from start to finish, examining law, procedure, problems, and pitfalls. An extensive manual is provided, and delegates are given
the opportunity to ask questions throughout. Webinars are recorded and I deliver the course personally. Why not develop the skills of your support staff so that they can provide additional support. Perhaps you will have more time for yourself, or perish the thought, time for a home life, gardening, or even more training! IAN QUAYLE is Chief executive, of IQ Legal Training Limited, which provides conveyancing and property law training provider to the legal profession. For more information or details of courses and training available call: 07471 125651, email: info@iqlegaltraining.com, or visit: iqlegaltraining.com.
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We welcome new law on video witnessing of Wills Rob Cope
Director Remember A Charity Virtual witnessing of Wills could be a major step forward for legacy giving providing safeguards are met. Remember A Charity has welcomed the Ministry of Justice’s announcement that Wills witnessed by video will be legally accepted in what could be a ‘major step forward’ for legacy giving. The new law applies to Wills made from 31 January 2020 – the first recognised case of Covid-19 in the UK – and is expected to remain in place until January 2022. The announcement reflects the increase in
the number of people seeking to make Wills during the Covid 19 pandemic and the challenges for those who are shielding or self-isolating to follow the normal legalities of making a Will – namely it being witnessed by two people. Rob Cope, director of Remember A Charity, says, “Modernisation of UK Will-making is long overdue and, although the changes announced today are temporary measures, this could be a major step forward for legacy giving, making it easier for people to set out their final wishes. "Ultimately, the more people that write a Will, the greater the potential for including a charitable donation. Even a small increase in the proportion of people leaving a gift in their Will could generate millions for good causes each year.” “But, as is so often the case, the devil is in the detail. The Will-making environment needs to have rigour, with sufficient safeguards in place to
protect the public, particularly those who may be vulnerable." "Video is a great option when witnesses can’t be physically present, but it does needs to be treated cautiously, with care and consideration. And the role of legal and financial advisers will be critical in helping the public finalise their wishes legally, minimising the likelihood of dispute.” Since the pandemic took hold in the UK in midMarch, demand for Will-writing and charitable bequests has risen considerably, with Remember A Charity receiving twice as much traffic to the ‘Making a Will’ section of its website. Rob adds, “The pandemic has helped people see the importance of getting their affairs in order and encouraged us all to reflect on those things we truly care about. This includes the charities that so many of us rely upon and the causes we are passionate about in our lifetimes.”
Registered charity number: Royal Navy & Royal Marines Children’s Fund 1160182
Supporting children whose
parents serve or have served in the Naval Service. We help children with a wide range of needs especially at times of a family crisis. If you think you may need some help you can contact us in the office, visit our website for more information or go through NS FPS (Naval Service Family and People Support) or SSAFA. Naval Childrens Charity, 311 Twyford Avenue, Stamshaw, Portsmouth, PO2 8RN Adverts.indd 15
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www.navalchildrenscharity.org.uk
023 9263 9534
caseworkers@navalchildrenscharity.org.uk 25/01/2021 20:58
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Will you remember the horses at Redwings Horse Sanctuary? Remember Redwings in your Will and save the lives of hundreds of horses in desperate need for years to come. Call 01508 481030 or email legacies@redwings.co.uk to find out how to leave a legacy today.
Thank you
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If you love horses, remember them!
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To Search or Not to Search, That is the Question FOR DECADES, PERHAPS EVEN LONGER, THERE HAS BEEN THE ONGOING DEBATE OF WHETHER AN INSURANCE POLICY IS WORTH TAKING OUT. EVERYONE HAS A VIEW, GENERALLY DEPENDING ON PERSONAL EXPERIENCE.
I
n the world of conveyancing, a recent survey¹ showed that 20% of transactions needed some form of title insurance. Of course, the client can choose if they take it out (unless the lender insists on cover being put in place) but if there is insurance available then it is down to the conveyancer to mention it. But there are some situations where the existence of insurance can actually be the difference between a transaction proceeding or not – and a good example of this is search insurance. Search insurance – or to be more specific, one of the Search insurances as there are three types: CHEVRON-RIGHT No Search Insurance (where you don’t apply for searches and rely on the insurance instead), CHEVRON-RIGHT Search Delay Insurance (where you have applied for searches but they might not arrive in time), and CHEVRON-RIGHT Search Validation Insurance (where searches are slightly ‘old’ and may not present the up-todate picture) used generally for remortgages. Clearly there is a strong argument for offering and taking out one of the above. Even without delays in the provision of searches, insurance can present a much more straightforward and costeffective option. In the present circumstances the availability of cover can support a transaction that may not otherwise complete. At the time of writing, there is a variation in the time taken for searches to be completed. Some local authorities are very swift, some are slower. In the well documented case of Hackney Borough Council and their cyber-attack last year, they reportedly have been recommending solicitors to take out search insurance as they cannot, with any certainty, deliver search results before the end of the SDLT holiday (currently planned for March 31st 2021). Although solicitors and conveyancers have generally been advising clients since the end of last year that there is no certainty to complete
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by the 31st March, some estate agents may be overpromising, putting further pressure on residential conveyancers to deliver. So anything that can assist must surely be worth considering? The issue with search insurances is not so much whether they are worth it but whether they are an acceptable solution and particularly whether the mortgage lender will accept them. So will they, or won’t they? That’s a trickier one to answer. The simple answer is the vast majority will. On a quick analysis of the UK Finance Lender Handbook, of the 125 or so lenders listed, only 17 won’t accept any type of search insurance in any circumstance. That means over 85% of lenders listed will accept them, at least in some circumstances and more and more will accept search delay insurance if there is a delay in getting the search results back. This might be temporary, we won’t know until later in the year, and depends on whether the SDLT holiday is extended or not, but in any case this is really good news for the industry. The BSA Mortgage Instructions² have 31 lenders listed and a quick search of section D.12 for a random 16 of them, showed that only one didn’t accept search insurance under any circumstances -meaning, if these numbers are representative, that over 94% will accept search insurance of some kind. Again, great news. Over the past few months, a number of lenders have changed their Part 2 Handbook instructions relating to the question “Does the lender accept search insurance, and, if yes, what are the lender’s specific requirements?” (Section 5.4.6 to be specific). But ‘changed’ does not necessarily mean ‘changed’. Nationwide, for example updated their section 5.4.6 in January 2021– what did they do? The put a paragraph spacing in! However social media quickly picked up that Nationwide has changed their criteria – which they hadn’t. So beware of fake news!
If you want to see a summary of which lenders (UK Finance) accept search insurance and in which circumstances, follow this quick link: lendershandbook.ukfinance.org.uk/lendershandbook/englandandwales/questionlist/2081/ For lenders in the BSA, an individual search by lender is required (Section D.12) In conclusion, search insurance in many, many cases is a viable alternative/addition to undertaking searches, so it’s worth considering and checking with the individual lender. Mandy Brown is Director of LawSure Insurance, the UK’s leading specialist independent broker in title insurance for solicitors and conveyancing practitioners. As an independent broker, LawSure has access to the whole title insurance market and can provide advice and a recommendation as to the most appropriate insurance for each client, free of charge. For more information about their free broking service, call 01293 880700 or email LawSure at enquiries@lawsureinsurance.co.uk 1
Live Survey undertaken by LawSure Insurance 2020
https://www.bsa.org.uk/information/mortgageinstructions 2
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