The Pears Magazine issue 37 by EPC Studio

Issue 37 Winter 2021

Jim Quinn reaches 60-year milestone see page 10

ALSO: • Of Causation and Coronavirus • Pup-NupTM Lockdown: Balancing the Employment Law implications & more...

Bulletin Sponsored by

This edition... Issue 37 Winter 2020/21 4 Committee Members and Member Firms 5 President’s Introduction 6 Of Causation and Coronavirus 7 The Classic Conveyancing Conflict 10 Tech firms supported by mentoring and expertise 10 Jim Quinn‘s 60-year milestone 11 Pup-NupTM 11 Law firm launches new restructuring and insolvency advice team 11 QualitySolicitors Parkinson Wright Domestic Abuse Drop in Centre 12 QualitySolicitors Parkinson Wright appoint new Children Law Solicitor 12 Law firm mfg Solicitors expands corporate team

Published by: EAST PARK COMMUNICATIONS Ltd. Unit 27a, Price St. Business Centre, Price St., Birkenhead, Wirral, Merseyside CH41 4JQ

Advertising

Published

Simon Castell

February 2021

Accounts Tony Kay

Tel: 0151 651 2776 simon@eastparkcommunications.co.uk www.eastparkcommunications.co.uk

13 14 16 18 20 22 24 26 28 30

Design David Coffey

Worcestershire JLD Profiles The Lost Notes Lockdown: balancing the employment law implications Video Witnessing of Wills A Welcome Step Landmark Planning: A Clearer View of Future Plans Revised Anti-Money Laundering Professional Guidance now in Force Informed Consent and Autonomy Can your expert truly sign the Statement of Truth? To Search or Not to Search? Top 10 compliance mistakes... ...and how to avoid them

Legal Notice © East Park Communications Ltd. None of the editorial or photographs may be reproduced without prior written permission from the publishers. East Park Communications Ltd would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of East Park Communications Ltd. Correct at time of going to press.

www.worcestershirelawsociety.com

Committee Members

Visit our website: www.worcestershirelawsociety.com or follow us on Twitter: @worcslawsociety

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

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

Patricia Beeching Committee Member Family Law Consultant, Hallmark Hulme Solicitors. Law Society Council Member for the Welsh Marches. Pat.Beeching@hallmarkhulme.co.uk

Andrew Chandler Editor of Pears mfg Solicitors LLP andrew.chandler@mfgsolicitors.com

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

Lara Wilkinson Committee Member Harrison Clark Rickerbys LWilkinson@hcrlaw.com

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

Laura Osborne Admin and Events Headturner Search laura@headturnersearch.co.uk

James Osborne Immediate Past President Treasurer Harrison Clark Rickerbys josborne@hcrlaw.com

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

Joeli Boxall Deputy Editor Pears Parkinson Wright jrb@parkinsonwright.co.uk

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

Worcestershire Junior Lawyer Division Rachael Wheeler Solicitor, Wills and Estates Saunders Roberts Chair rachael.wheeler@saundersroberts. co.uk

Trainee Solicitor Harrison Clark Rickerbys Secretary ghunt@hcrlaw.com

Natasha Thomas Trainee Solicitor Harrison Clark Rickerbys National Representativeww NAThomas@hcrlaw.com

Abbey Jones Solicitor mfg Solicitors LLP Vice-Chair abbey.jones@mfgsolicitors. com

Solicitor mfg Solicitors LLP Social Secretary jessica.mcsorley@mfgsolicitors.com

Bruce Rodford Clerk Silver Fox Chambers Social Secretary brucerodford@ silverfoxchambers.org

Victoria Zinzan Trainee Solicitor mfg Solicitors LLP Social Media Secretary Victoria.zinzan@mfgsolicitors.com

Celtic Murray Paralegal Harrison Clark Rickerbys Social Secretary CMurray@hcrlaw.com

Kate Collins Solicitor Bradley Haynes Law Treasurer katec@bradleyhayneslaw.co.uk

Jessica McSorley

Daniel Maiden Trainee Solicitor Parkinson Wright National Representative djm@parkinsonwright.co.uk

www.worcestershirelawsociety.com

President’s Introduction Dear WLS members, It is a great honour to write to you as your newly elected President. I have had the privilege of working closely with the Law Society over the past four years, firstly with the Worcestershire Junior Lawyers where I sat as Chair in 2017/2018 before joining the committee in 2019. Firstly, I would like to thank James Osborne our outgoing President, for supporting us through a difficult and trying year. I, and the committee, are grateful to James for his hard work, organisation and diligence. James will remain an integral member of the committee having been elected to the role of Treasurer. Many of the planned live events for 2020 were unable to go ahead due to the pandemic. Thanks to technology the committee were able to continue to deliver meaningful events including a Virtual Careers Event in partnership with Worcester Law School; seminars from St Philips and St Ives Chambers and a virtual Law Awards evening! The Law Awards took place virtually on 24th September. Congratulations again to all those that were nominated, shortlisted, to the runners up and

winners on the night. It is difficult to predict what will happen over the coming months but I do hope to be able to announce an in-person black tie WLS Awards evening later this year – it would be nice to get dressed up again - fingers crossed! Whilst we eagerly await the end of the pandemic, I am excited to continue the committee’s charitable endeavours working closely with Onside, our chosen charity for 2021! Onside work across Worcestershire & Herefordshire, providing a wide range of support services to ensure fairness and equality for all members of our community who may be vulnerable, disadvantaged or discriminated against. The committee will shortly be releasing a 2021 events schedule and I hope that you will join us, virtually to begin with, to continue building our professional relationships, learning and supporting one another. If there is anything either I or the committee can do to assist you in these difficult times please do not hesitate to let me or the committee know. Best wishes, Charlotte Perry President, Worcestershire Law Society 2021-2022

www.worcestershirelawsociety.com

Of Causation and Coronavirus – Are Covid-19 Injury Claims Likely to Succeed? by Colin Baran, St Philips Chambers, Birmingham As the world tries to work in the shadow of Covid-19, there can be little doubt that the employer’s duty to provide for their employees a safe system of work, safe workplace and protective equipment must now include a requirement to risk assess and to take appropriate steps to address the risk of transmission of coronavirus in the workplace. Similarly, in the healthcare context, treatment providers or care settings will see the duty of care owed towards patients and residents include a duty to take reasonable steps in light of the by now well-publicised dangers. These are uncontroversial propositions. They are natural extensions of the relevant duties of care to take reasonable steps in respect of foreseeable risks. However, breach of such a duty, for example by not providing adequate personal protective equipment to an employee or carer, will not necessarily give rise to a claim for damages. A major hurdle that every claimant is likely to face in a personal injury employers’ liability, public liability or clinical negligence claim arising out of the pandemic is in proving causation of injury. As personal injury and clinical negligence lawyers, we are all used to dealing with the same issue in occupational disease, travel sickness and hospital acquired infection cases. We are all familiar with the fact that apart from in the minority of exceptional cases (e.g. mesothelioma or deafness claims where apportionment is performed as between contributing potential causes) the usual rules of causation of loss apply. Merely increasing the risk of an illness being contracted or passed on is unlikely to suffice to establish causation. It must be shown that, but for the alleged breach of duty, the claimant in question would not, on balance of probabilities, have acquired the illness. Alternatively, a claimant may think about whether they can demonstrate that a breach of duty made a material contribution to the development of the illness.

In this respect, Covid-19 claims are unlikely to be treated differently to other cases where it is asserted that the cause of disease, infection, illness or even death is attributable in law to a breach of duty. A claimant must therefore consider proof of factual causation. How can they show that coronavirus was on balance of probability actually contracted at work or through a failing in healthcare provision, rather than in the community generally? Good evidence of their contact history and adherence to social distancing guidelines, together with a clear timeline, will be important. Have they been exposed to potential sources of infection in circumstances outside of the control of the defendant? Who have they been in contact with, and when? Have their contacts developed symptoms, and when? In addition, claimants will have to meet the defendant argument that no system of prevention is perfect. Non-negligent acquisition of infection in a healthcare context is commonplace. Isolated cases of hospital acquired infections are rarely considered to be the result of shortcomings in care per se. Hospitals are full of ill people. Infections are present there. How can a claimant show that catching the illness from a care environment or a workplace was not just one of those things that happens when dealing with a highly contagious pathogen about which relatively little is known? How can this claimant’s infection be attributed to a breach of duty, rather than being an unfortunate non-negligent occurrence? Why must the finger of fault be pointed, leading to liability and to compensation? This feeds into the final consideration on causation. A claimant must demonstrate the link between the absence of a precaution complained of and the acquisition of the illness. Again, this may not be straightforward. See for example the changing evidence and guidelines as to the effectiveness of facial coverings over the course of the pandemic. Is an employer not providing masks properly held liable when WHO and government advice on the point is at times conflicting? By way of further example, a mere failure to provide expensive antibacterial hand gel in the toilets is unlikely without more to establish the causative link between a workplace and a coronavirus case.

www.worcestershirelawsociety.com

Reasoning from other types of cases may assist on all of these issues. Depending on the specific facts, identification of clusters of infection centred around a workplace or healthcare setting could help to suggest, on balance of probability, that a failure to implement control measures caused the transmission of disease – in the same way that food poisoning or Legionella clusters support a causative link in illness claims against hotels. Much will however depend on timing, and any steps taken upon identification of the first case in a cluster – a ‘patient zero’. As we know, one of the more dangerous features of Covid-19 infection is the latent asymptomatic period of up to 2 weeks. During this time an infected person may become a ‘silent spreader’. What steps are employers and healthcare providers reasonably expected to take to address a hard to quantify risk of an invisible threat posed by an unwitting carrier? Ultimately, the success of Covid-19 claims is likely to turn on how well expert evidence is deployed. Epidemiological studies, research and statistics will be needed to support any argument based on the facts that the specific failing alleged against an employer or care provider ‘made the difference’. At the moment there is a huge spectrum of conflicting research evidence and opinion. It will be a brave infectious diseases expert who supports a causation argument at court in a claim of this type, particularly when scientists are at a relatively early stage in understanding how coronavirus is transmitted in the community. Anyone professing to have all of the answers should be treated with caution. It may therefore be prudent to hold fire on Covid-19 claims, to take the benefit of any limitation period and to assess prospects of successfully demonstrating causation when more measured expert evidence based on further experience can be deployed. This will also allow time to assess whether any avoidance or postponement of an infection is likely to have made a difference to the outcome for a claimant by preventing the most catastrophic health consequences being suffered. This will be particularly so once the effects of a vaccine or effective treatments are evaluated in the coming months.

Acting for Seller and Buyer – The Classic Conveyancing Conflict Lorraine Richardson provides a reminder of conflicts of interest in conveyancing, focusing on one of the key areas where risk can arise: acting for both the buyer and seller in a transaction. Conveyancing solicitors have got more to worry about than conflicts, haven’t they? It might seem that way, but avoiding conflicts of interest is an ongoing professional duty. Also, I would suggest that the current upheaval makes conflicts more likely, and thus more of a risk for conveyancing firms. Solicitors should think carefully about whether their firm should act for seller and buyer in the same transaction. This article is written from the perspective of conflicts in conveyancing for solicitors. Licensed conveyancers are governed by a different conduct and conflicts regime. Anyone considering conflicts of interest should remember that an actual conflict of interest is not the requirement. The purpose of the Code of Conduct is to avoid conflicts arising in the first place. This is why solicitors must always be looking out for a “significant risk” of a conflict. A significant risk is sufficient for the solicitor to decline to act. It may be a cliché, but prevention is better than cure: avoiding a conflict in the first place is far better than trying to clear up the mess if a conflict arises.

It is fair to say that solicitors’ firms have vastly differing approaches to matters of conflicts of interest: some firms take conflicts of interest very seriously and have a clearly defined process to follow, while others give this little or no thought. Whatever the attitude of the firm to conflicts, I suggest that all staff in a conveyancing team, of whatever experience, should be encouraged to trust their instincts in relation to conflicts and report any concerns to a more senior member of their team. ‘Knowing what you don’t know’ is a powerful risk management tool when it comes to conflicts. Lorraine Richardson is an experienced property solicitor, author and speaker, and Managing Director of property law training provider, Adapt Law Ltd (www.adaptlaw.co.uk)

The reason that identifying a potential conflict and avoiding it is so important is because if a conflict between clients arises during the transaction and the solicitor concludes that they are unable to continue acting, they should inform the clients accordingly, and cease to act. The solicitor should also advise the affected clients to seek legal advice elsewhere and will no doubt lose the costs on the file. When considering whether it is appropriate to act for the seller and buyer in the same transaction, some solicitors will apply the following criteria: • the clients are established clients of the firm • separate fee-earners act for the seller and buyer; and • each fee-earner is based in a different office These may look familiar. These criteria are, in fact, the exceptions to the prohibition for acting for seller and buyer which applied in the 2007 Solicitors’ Code of Conduct. They have not been applicable since 2011. While they might be helpful indicators when considering the overall risk of conflict, they are not in themselves exceptions which allow the firm to act. I suggest the starting point is that the firms do not act for the seller and buyer in the same transaction. The fee-earners involved should try to justify to themselves why they should act, and note their detailed considerations on the file. If the firm decides it can act in this situation, it should then obtain the informed consent in writing from all affected clients, to allow the firm to act. But acting for the seller and the buyer in the same conveyancing transaction should be an exceptional event. It is necessary to ensure that it is in each client’s best interests for the firm to act. If a firm concludes that it should act for seller and buyer in the same transaction because it does not want to lose both sets of legal fees, this is a classic example of the firm putting its own interests above those of the clients.

www.worcestershirelawsociety.com

News News News News News News years in the legal profession. Jim Quinn, 81, began his career in 1960 as a trainee with Kidderminster firm Ivens Morton & Greville-Smith, which through a variety of mergers and acquisitions grew into the modern-day firm mfg Solicitors with offices across the county and into Shropshire and Birmingham. Nicola McNeely at BetaDen Tech firms supported by mentoring and expertise HCR’s leading technology law expert has been supporting growing companies being developed by Malvern-based tech accelerator BetaDen, which is now looking for its next group of entrepreneurs and tech companies to apply to join Cohort 4.0. Nicola McNeely, who has worked with tech companies throughout her career, has been giving a day a month to the companies pro bono. An acknowledged expert in her field nationally, she offers legal advice on everything from their contracts and the structure of the companies, to negotiations with investors and suppliers and their market strategy. She said: “It’s hard work, but I get the opportunity to work with really interesting tech businesses; I have spent my career with this kind of business and I really enjoy it. Their issues are very varied, and it is great to be able to help them set a course towards success.” The current cohort of businesses are developing products and services using blockchain, artificial intelligence (AI), drone

mapping, 5G and thermal sensors. BetaDen is now keen to recruit more early stage technology entrepreneurs to benefit from its support – based at Malvern Hills Science Park, it offers nine months of free office space, mentorship, and access to Worcestershire’s 5G testbed. Worcestershire Local Enterprise Partnership also provides a £10,000 ‘proof of concept’ grant. Linda Smith, CEO and founder of BetaDen, said: “We’re delighted to have Nicola on board; her background in IT and intellectual property is invaluable for the founders here. We have just started recruiting for our new cohort who will come on board in March next year, and I hope that HCR will continue to support us.” The new Cohort 4.0 will benefit from BetaDen’s link up with high-performance tech company Steatite, and from enhanced access to 5G. To apply, visit BetaDen’s website www.beta-den.com.

Respected Worcestershire solicitor reaches 60year milestone A nationally respected farming and rural affairs solicitor has celebrated a landmark 60

www.worcestershirelawsociety.com

Jim Quinn Wolverhampton-born Mr Quinn, who moved to Ombersley in 1957, has since been instrumental in mfg’s growth across the region, mentoring new lawyers and building a revered reputation to become one of the leading agricultural solicitors in the UK after winning a variety of highprofile cases. Still a practicing solicitor, the father of three continues to work as a consultant for mfg and last year was recognised by the Worcestershire Law Society by being handed the society’s Lifetime Achievement Award. Maynard Burton, chairman of mfg Solicitors, said: “To celebrate six decades in the legal profession with only one firm is a remarkable achievement and underlines Jim’s unrivalled commitment and loyalty.

“During his time at mfg Jim has founded and grown a number of departments, mentored countless young solicitors, and become known across the UK as ‘Mr Agriculture’ for his success in advising hundreds of farmers and landowners. “It is a milestone that we wouldn’t expect to see again for many years. Jim is one of a kind and it is no surprise to anyone that even at the age of 81 he continues to handle a variety of case work. It is a proud moment for everyone at mfg to see him reach 60 years.” Jim Quinn added: “I feel an enormous sense of pride and thank the bedrock of my career which is my wife Anne, my three children and my seven siblings. I have enjoyed encouraging colleagues over the years and recall the variety of brilliant people I have worked with. To serve our clients has been an absolute privilege but I look forward to continuing for many years to come. “As a firm, mfg Solicitors has grown hugely over the years and to recall that I have played a part in that success is a wonderful feeling.” To mark his 60 years, Mr Quinn has also written a book about the law firm which was released last month after three years of research and writing. The paperback chronicles the history of mfg Solicitors and its predecessors in Wyre Forest and the surrounding area – with its history believed to date back to 1484. The book also covers the firm’s more recent expansions in Ludlow, Bromsgrove and Birmingham.

News News News News News News You can keep the house - I’ll have the dog’; HCR launches ‘Pup-NupTM ’

Nick Gova with Porto When a couple splits up, their dog can become a bone of contention – for some, it’s as important as sorting out the money or the house. Because dog ownership is a real commitment, HCR’s family law team has launched a canine version of the prenuptial agreement, to set out who will look after the dog if a relationship ends; with so many buying puppies in lockdown, this kind of care is vital. The Pup-NupTM agreement will not only safeguard one dog’s life but also help other dogs – each agreement will be accompanied by a donation from HCR to Dogs Trust, safeguarding dogs who still need help and care. Family lawyer Nick Gova, a dog-lover himself, who came up with the idea, explained: “When deciding who should have the dog when a relationship ends, the English courts treat dogs in the same way they would treat contents and possessions; the assumption could be that the person who paid for the dog should keep it. “But dogs are valued members of the family, and disagreements over their

care can lead to difficult and lengthy legal proceedings. A Pup-NupTM is an effective way to agree on what happens to your dog ahead of any problems; no-one wants their relationship to end but, just like a pre-nuptial agreement, if you can address important issues together early on, you will be better protected in the future.” The Pup-NupTM specifies where your dog will live, its diet, insurance and health care provisions, holiday arrangements and what would happen if one owner does not carry out their duties of ownership. HCR has more than 500 staff and partners based at offices in Worcester, Birmingham, London, Thames Valley, Cambridge, Cheltenham, the Wye Valley, Hereford and Cardiff, who provide a complete spectrum of legal services to both business and private clients, regionally and nationwide. The firm also has a number of highly successful teams specialising in individual market sectors, including health and social care, education, technology, agricultural and rural affairs, finance and financial services, defence, security and the forces, and construction.

Law firm launches new restructuring and insolvency advice team A Worcestershire law firm launched a new legal team in Autumn 2020 to help steer the region’s business leaders through the current economic crisis. mfg Solicitors unveiled its Restructuring and Insolvency team in November which is

Clare Lang, Sam Pedley and Clare Regan led by head of commercial property Clare Regan, the firm’s corporate head Clare Lang, and insolvency partner Sam Pedley. The partner-led team, which is supported by other specialists from around the firm, will advise on a range of issues including business survival strategy, safeguarding jobs, business sales, restructuring, and a variety of commercial property related matters on behalf of landlords and tenants. Clare Regan said: “As we are now in the third national lockdown, I am in no doubt we will see some of the toughest trading conditions ever experienced by many businesses. “This is a period of great uncertainty and the ability to predict how a business’ finances will look, even a few months ahead, will be severely hampered. “Added to this, businesses will be affected by what happens to their suppliers and their customers. The ability to react quickly, to restructure and ensure creditors do not feel the need to seek winding up, will be essential. That all requires the right advice at the right time.

“We’ve always worked closely across our various disciplines and expertise, but the new Restructuring and Insolvency team will allow us to do this seamlessly as our clients react, adapt and navigate their way through these difficult times.” Ms Regan added that the team is already noticing an increase in enquiries and instructions for their expertise. For further information readers can email clare. regan@mfgsolicitors.com

QualitySolicitors Parkinson Wright Domestic Abuse Drop in Centre In November 2013, QualitySolicitors Parkinson Wright opened the first domestic abuse drop in centre in Worcestershire. This initially operated two mornings a week. It is now open all day Monday to Friday so that victims can get legal help and advice. Suzanne Oldnall, Head of the Domestic Abuse Team says, “We have worked closely with domestic abuse agencies across Worcestershire. They have been instrumental in spreading the word that victims of domestic abuse do

www.worcestershirelawsociety.com

News News News News News News The courts are now looking at exparte applications by paper, without the need for court hearings in the first instance. We are finding this an effective means to assist our clients.

Suzanne Oldnall not have to suffer in silence and help is available. The Drop in Centre is a place where victims can contact us without an appointment and receive legal advice and emotional support. Domestic abuse has increased during the coronavirus pandemic as victims have been isolated with their perpetrators. Over the Christmas period, QualitySolicitors Parkinson Wright provided an out of hours legal helpline and received many calls from victims who required injunctions to protect them. Frequently, clients seeking protective orders are primarily concerned for the safety of their children. They are unaware that Children Act orders are available for their immediate protection. We are pleased that we have been able to help and support clients who have visited the Drop in Centre during the past 8 years and have been able to continue that support throughout the pandemic.” The latest government guidelines state that, ‘household isolation instructions as a result of coronavirus do not apply if you need to leave your home to escape domestic abuse.’ This has been welcomed together with the introduction of Boots Pharmacy Consultation Rooms as safe spaces for victims of domestic abuse to contact specialist domestic abuse services.

QualitySolicitors Parkinson Wright appoint new Children Law Solicitor at their Worcester office QualitySolicitors Parkinson Wright has strengthened its growing family department with the appointment of Sophie Ballinger, Children Law Solicitor. Sophie specialises in Public Children Law, representing parents and family members where a local authority has issued care proceedings. She also undertakes private children matters.

Sophie Ballinger Peter Lewis, Partner and Head of Family Law says: "We are delighted that Sophie has joined QualitySolicitors Parkinson Wright’s Family Law Team. Her empathetic approach with clients makes her a welcome addition to our expanding Children Law team." Sophie says: “QualitySolicitors Parkinson Wright has an excellent reputation and I am pleased to be joining such a strong team. I look forward to working alongside wellrespected and established lawyers.”

www.worcestershirelawsociety.com

Dan Southall, Clare Lang and Matt Allen Law firm mfg Solicitors expands corporate team Worcestershire law firm mfg Solicitors has strengthened its respected corporate team with a double appointment. The 38-partner firm, which has offices across Worcestershire has appointed solicitors Matt Allen and Dan Southall as a growing number of businesses look to mfg for advice on a host of corporate and commercial deals. Matt, an expert in a range of corporate, commercial, data protection and intellectual property matters, joins mfg from FBC Manby Bowdler. He will focus on assisting the firm’s clients with their corporate and commercial matters, working closely with partners David Raymont and Mike Payne. Dan, a company sales, acquisition and business start-up specialist, moves from Thomas Horton Solicitors and joins partner James Hayes to further expand the firm’s corporate offering. Clare Lang, partner and head of mfg’s corporate team said: “Both Matt and Dan are exciting appointments for us and tremendous additions to our growing corporate team.

“They both have the exact skills, energy, ideas and enthusiasm we need for the future and are already fitting seamlessly into our very busy team as we handle multiple corporate and commercial deals locally, regionally and nationally. “I am certain Matt and Dan will make superb contributions to the firm and provide first-class support for our clients in the months and years ahead. Despite current restrictions, our department is buoyant as business owners hurry to complete corporate transactions ahead of anticipated tax rises, and as the hope of a Covid-free future beckons.” Led by Clare, mfg’s corporate team specialises in advising on all aspects of corporate law, supporting companies and owner-managed businesses through the various stages of their business cycle from startup, growth and ultimately through to exit. Their work includes company business acquisitions and disposals, management buyouts, restructuring, refinancing and dealing with business startups. They also advise on a variety of commercial matters such as supply agreements, terms and conditions and intellectual property licensing.

Worcestershire Junior Lawyers Division Rachael Wheeler – Chair Rachael qualified in 2017 and is a Private Client Solicitor at Saunders Roberts in Evesham specialising in Lasting Powers of Attorney, Wills, Probate, Estate and Tax Planning. Rachael has been involved with the Worcestershire Junior Lawyers Division for many years and has been on the committee since 2014 when she was a paralegal. In her spare time Rachael enjoys yoga and being creative, sewing and cooking.

Victoria Zinzan – Social Media Secretary Victoria is a Trainee Solicitor at mfg Solicitors. Victoria obtained her Law Degree from Keele University before completing the LPC and a Masters in Law at the University of Law. Victoria joined the Committee when she started her Training Contract in September 2020. Victoria also assists in mentoring university students and writes a monthly blog about life as a trainee. Victoria enjoys reading and spending time with family/friends.

Abbey Jones – Vice Chair Abbey is a Solicitor in the Corporate/Commercial team at mfg Solicitors LLP specialising in acquisition and disposals, shareholders’ agreements and commercial terms and conditions. Abbey has a keen interest in providing a support network for junior lawyers and encouraging diversity and inclusivity within the legal field. Abbey enjoys reading, baking, exercising and being with friends/ family.

Jessica McSorley – Social Secretary Jessica qualified as a solicitor with mfg Solicitors in 2019 working in the firm’s Commercial Litigation department. Jessica got her Law Degree from the University of Birmingham in 2015 before completing the LPC and LLM at

the University of Law. Jessica has been shortlisted for both Worcestershire’s Trainee Solicitor and Junior Solicitor of the year. Jessica enjoys volunteering and helps the firm assist with fundraising.

Georgie Hunt – Secretary Georgie has been on the committee since she started working for Harrison Clark Rickerbys as a Paralegal in the Dispute Resolution Team in 2018. Georgie did her undergraduate degree in Philosophy before completing the GDL and LPC. Georgie started her training contract with HCR in March 2020. Georgie is also deputy head of HCR’s Paralegal/Trainee Group. Georgie enjoys yoga, cooking and spending time with her friends/ family.

Celtic Murray – Social Secretary Celtic is currently a Paralegal at Harrison Clark Rickerbys in the Wills Trust and Estates Department. Celtic has a keen interest in the work of the Court of Protection. Celtic completed her Law Degree at Coventry University and is currently undertaking the LPC at BPP University Birmingham. Celtic is in the process of applying for training contracts. Celtic plays on a ladies football team and loves to do escape rooms.

Kate Collins – Treasurer Kate is a Solicitor in the Corporate/Commercial team at Bradley Haynes Law, undertaking a wide range of work with a focus on property related transactions. Kate specialises om providing legal protection for business owners and individual clients, assisting with Shareholder Agreements, Wills and Probate/Estate administration. Kate was also shortlisted for Trainee Solicitor of the year. Kate enjoys reading and travelling.

Chambers. Set up in 2018, Silver Fox is an established set of barristers currently working with solicitors, accountants, local authorities and other public bodies in the county and nationally. Bruce is also involved in local politics. Bruce enjoys cycling up hills and expanding his wine knowledge.

Natasha Thomas – National Representative Natasha is a final seat Trainee Solicitor at Harrison Clark Rickerbys. Natasha joined the firm in 2017 as a Commercial Property Paralegal before commencing her Training Contract in March 2019. Natasha completed her Law Degree at Aberystwyth University in 2014 before moving to London to study the LPC at City Law School. Natasha enjoys walking whilst listening to a podcast and cooking.

Daniel Maiden – National Representative Daniel is a Trainee Solicitor within the Family team at QualitySolicitors Parkinson Wright and undertakes a wide range of work including Public and Private Law Proceedings. Daniel specialises in Pre-Proceedings, Care Proceedings and Discharge of Care Orders. Daniel has worked as a secretary, Legal Assistant and Paralegal before securing his training contract in November 2020. Daniel enjoys running and socializing.

Bruce Rodford – Social Secretary Bruce is a Senior Clerk at Silver Fox

www.worcestershirelawsociety.com

Photo by Graham Leonard

The Lost Notes: “Lowlifes & High Times”

A description of life at the Criminal Bar or the product of an irresistible creative impulse? Trying to work as a full-time musician/actor after university was a lot of fun. But even great songs like “Mustang Sally” lost their appeal after bellowing them out seven days a week to increasingly drunk and only moderately interested wedding guests, corporate crowds and Reeperbahn loiterers. Equally, the three hours a day of tele-sales to help pay the London rent didn’t help things. So after three years, something had to change. Deciding that music was not going to be at the heart of how I made my living was one of the most difficult decisions I’ve ever made. It was only then that I became aware of what a barrister was and that it offered the possibility of a job which felt both socially valuable yet still offered the opportunity to perform in front of an audience. For the avoidance of doubt, I am not suggesting that should appear in the government’s next artist diversification advert. But it worked for me. Early life at the bar meant that music took a back seat. But in 2014 I decided to abandon all covers gigs and start a band which would only write and perform original music. I met Oli Jobes, a local finger-picking guitar virtuoso, and between us we built up a bank of 15-20 original acoustic roots/Americana songs. We started off at open mic slots as The Lost Notes and soon received invites to headline club nights and appear at festivals. We brought in Lucy Mills to share 3-part harmony vocals, Max Tomlinson on drums and Silas Wood on double bass. In December 2017 we released our first album Run Free Right Now.

www.worcestershirelawsociety.com

With positive reviews in international Magazines [Maverick Country Music Magazine: “Sublime…fearless and entertaining; extremely clever song-writing ...wonderful”] our reputation started to grow, leading to 3-4 gigs a month. One of the great things about performing music is that it takes you to people and places you might otherwise never visit. From the small folk club off a Black Country side street, to backstage on the bill with The Levellers, Teenage Fan Club and Nick Mulvey. On the acoustic music scene at least, whatever their life journey, most people who attend to play or listen all share a deep love of music. Audiences listen and drink rather than drink and chat. They are, by and large, fabulous, warm, welcoming, places and a priceless antidote to the all-consuming stress of life at the Criminal Bar. Professionally, one of the hardest consequences of Covid 19 was the inevitable drop in court work commitments. But it also ravaged the live music industry. Like bands across the country, our summer of festival bookings and regular club gigs was decimated. All but one festival was cancelled. The mighty Beardy Folk Festival in Cleobury Mortimer soldiered on and it was magical. Everyone who attended, whether performer or audience, was reminded of the privilege, intimacy and deep joy felt by the shared experience of music. It has to find a way back. But the pandemic also provided the opportunity to finish our second album. Pre-lockdown we had recorded the 50 or so live takes for each song. Editing all of that down to 13, 4 minute, finished pieces was a marathon. Instead of gathering together around a monitor in a darkened room, it all had to be done via Dropboxing files and emailing ‘notes’. We assembled a great team including Mark Ward, a wonderful BBC sound engineer/editor along with Nick Cooke, an ex-

Sony Music mastering engineer favoured by the likes of Kate Rusby, and our French Graphic Designer, Cyril Terrier, who had done the artwork for our first album. There’s nothing like sweating over audioediting software at 2AM, trying to edit out loud breaths, lip smacks and errant guitar knocks to help you forget about professional woes and global pandemics. Between us, that process alone took over 1000 hours. Then it was finished. “Lowlifes & High Times” was released on 5.12.20. No repeat of the raucous launch gig we’d so enjoyed last time around. But it was out there. Whilst professional achievements bring a certain amount of satisfaction, for me, they don’t come close to this. Throwing your own creative work out to the wolves of the world is something you have to brace yourself for. But, equally, there is nothing like receiving a favourable review. “Their debut announced them as rising stars, this puts them firmly in the brightest constellation.” Folking.com "Their versatility, dynamics, proficiency and energy is clear... their joyfully melancholic folkie Americana sound... fits in amongst peers like… Fleet Foxes, …Fairport Convention and… Crosby Stills Nash and Young." Rocking Magpie

All that said, I have no professional music qualifications and would not be able to support a family from band income alone. But I do have a persistent urge to write songs, perform with friends and stay creative. Music is a great companion and, for the best, it should be a viable way of life. For the future to be sustainable it requires the public to find ways of ensuring that those who provide the soundtrack to our commutes, gym sessions, parties and personal celebrations are sufficiently rewarded. If you’re interested in hearing our music you can of course stream it or treat yourself to a CD or download at www.thelostnotes. co.uk/shop or from iTunes and Amazon etc. But, like every jury is told, remember the warnings. Ben Mills is a Specialist in Regulatory Crime at St Philips Chambers, Birmingham and a Recorder of the Crown Court on the Midlands Circuit. www.facebook.com/homeofthelostnotes www.instagram.com/homeofthelostnotes

"A banger of an album!" MusicStyle: Undecided “Delightful jazz folk sensibility” FATEA Magazine When BBC Introducing WM chose to play a track it was a moment of great joy and relief [BBC Introducing WM: “Brilliant, brilliant, brilliant! I love it!”]. But there’s another side. The songwriting, rehearsing, recording and editing amounts to well over 2000 hours work. Then comes the marketing and promoting. Hard copy CDs are produced and, inevitably, the album is made available on streaming services such as Spotify, Deezer, iTunes and the like. In my view, streaming services are currently killing new music. For example, when an independent band like ours sells a CD for £10, or a digital download from www. thelostnotes.co.uk, we retain most of that - split between 5. When someone streams a song we get somewhere in the region of £0.005 – split between 5. I have the luxury of a professional income, which means I don’t rely on the financial success of original music to survive. But imagine what those figures mean for the professional members of the band, along with the 1000s of independent artists who have the talent and determination to keep producing exciting original music that enriches all our lives? After 1000s of hours of unpaid creative effort, their art is consumed in a way which makes their financial future entirely unsustainable. It’s even worse than a ‘mention’ fee. Buying a CD or other merchandise from an upcoming band will probably cost you less than a couple of pints. But, when doing so, you will be directly supporting the future of the creative arts.

www.worcestershirelawsociety.com

Lockdown: balancing the employment law implications

Julie Duane On 4 January 2021 the UK entered its third national lockdown, resulting in the closure of all non-essential retail stores and the move to remote education provision in respect of primary schools, secondary schools and colleges across England. However, schools would remain open (as was the case in the first national lockdown) for the children of key workers and vulnerable individuals. It is anticipated that this lockdown will remain in place until at least the middle of February, albeit there are murmurings that these timescales could be extended further due to the significant pressures on the NHS and the suggestion that individuals are not adhering to the strict guidelines. What has been amplified in this lockdown is the balancing exercise of enabling workers to work from home (where possible) whilst juggling childcare responsibilities. Further, there is the additional balancing exercise of ensuring that those key workers operating in an educational setting are kept safe versus the need for the parents of the children of key workers being able to carry out their roles effectively. The aim, generally, is to try and offer some stability to individuals so that the economy can continue to operate, along with trying to preserve the health and interests of the many. It is an incomplete paradigm for which there appears to be no right answer. From an employment perspective this unearths several novel complications, including but not limited to:

a) An increase in potential s.43B, s.44 and s.100 ERA 1996 claims. On the one hand you have individuals claiming that they have no alternative but to come into work (due to the nature of their roles). Those individuals may be experiencing poor health and safety practices, potential risks which may present a serious and imminent and danger and potentially dismissed as a result of their refusal. This is then contrasted with an employer’s position where risk assessments, practices and procedures have been invoked in order to reduce risk (notably the obligation is to take reasonable steps to reduce risks, not to eliminate them), an employee’s refusal to engage with working practices, despite there being no serious and imminent risk (albeit perception will inevitably cloud either parties judgment on this) and the financial challenges which inevitably places pressure and potential job losses on the operations of a business; b) The closure of schools (save for vulnerable and key workers children) which on the one hand is intended to act as a preventative measure following the new strain of the coronavirus, to be balanced against a parent (single or otherwise) who may be trying to operate from home whilst addressing the highly demanding needs of their children. As the first lockdown has shown, the challenges are significant and as many articles have recently shown, this situation exposes those individuals (statistically, but not solely women) who remain at risk of falling behind at work, whilst also potentially exposing this group to a greater risk of job losses. From an employer’s perspective they require a degree of operational functionality and have to try and balance the demands of the challenges to its business against the personal difficulties encountered by its staff. In some cases, this is not viable and thus that resulted in the loss of around 2 million jobs last year; c) Shielding issues and risk factors. Shielding has come back into effect for the clinically extremely vulnerable due to the risks of the latest strain of the

www.worcestershirelawsociety.com

virus. This impacts not only individuals (particularly in a key worker setting) many of whom are separating themselves from their own family in order to reduce transmission of the virus, but also the workers, who themselves are fearful of contracting the virus due to their vulnerable status. For employers, where it is not possible for these individuals to work from home, again there is the need to balance its operational needs whilst ensuring its compliance with the provisions dictated by the Equality Act 2010; and d) Recruitment stresses. Recruitment has seen seismic changes throughout the pandemic. Due to the significant job losses throughout the pandemic, many will have seen the calls on various social media platforms for those “seeking new employment” and engaging in a candidacy run off where 100s of applicants are competing for, perhaps, one or two roles. Not only is this a challenge for individuals but also employers, who are faced with a wealth of competing applicants, many of whom demonstrate excellence on a number of key criteria. For those who continue to look for work the key is to remain resilient, to assess their applications critically and to seek feedback on any rejections (if provided) on each occasion in order to update applications accordingly. For those recruiting, it is important that they operate a balanced and non-discriminatory approach to the criteria applied and to show humility to those who have taken the time to apply for a role, but may or may not be successful in their application. Whilst it is impossible to determine what the future will look like, as this will depend on and be dictated by a number of variants, it is arguable that the following may occur: a) Rise in potential redundancies/ restructures – due to the various business closures and lack of revenue and profit generated by businesses during lockdown, combined with the additional challenges of Brexit and potential removal of the furlough

scheme in the future, it is arguable that there will be an increase in this area; b) Increase in discrimination claims – taking into account the categories of individuals who are a heightened level of risk following the pandemic, whether because of gender/disability etc. if employers do not ensure compliance with the Equality Act legislation when carrying out their practices, they may unwittingly give rise to these types of claims; c) Increase in requests for parental leave/ holiday leave – in order for parents to try and manage the challenges of balancing childcare and work responsibilities; d) Flexible working – taking into account that many businesses have now been operating a working from home model since March 2020, when restrictions do ease, it is probable that individuals may continue to request that they work from home, especially if this has been feasible for an extended period of time. Employers will therefore need to consider and apply logical reasons if such requests are to be refused and on

what grounds; e) Increase in Employment Tribunal claims – following the initial lockdown and pre-existing backlog of claims, most claims are now not being listed until the end of 2021/2022 at the earliest; and f) Mediate rather than litigate – taking into account that most Tribunals are not taking place for approximately 12 months, mediation may offer a quicker and more desirable solution for the parties. It can reduce costs, facilitate solutions that the Tribunals cannot offer and potentially expedite closure on issues. Ultimately there is no quick fix solution to the impending challenges facing individuals and businesses alike. Various schemes have been introduced throughout the pandemic in order to try to weather the storm, from the CRJS to grants and loans for businesses. Whilst those measures may help balance the situation for some business in the short term, for many the pandemic and its

after effects will impact for a significant period of time to come. Further, it seems clear that the future taxpayer will likely be shouldering a proportion of the burden of the emergency fiscal measures put in place, long into the future. As society comes to terms with the new normal, two things should resonate: 1. “People will remember those who showed humility and helped others throughout this pandemic.” Do not be in the category of those who use this as an opportunity to take advantage and, where you can, help others as a responsible social citizen. 2. We all have a balancing exercise to undertake, whether individuals in society in terms of their actions to balance social distancing with their economic health/livelihoods or indeed for legislators, in balancing the needs of a diverse, legal protected, swathe of employed society. Julie Duane

www.worcestershirelawsociety.com

Video Witnessing of Wills A Welcome Step, But Only if Safeguards are Met This September, a Statutory Instrument (SI) was laid in the House of Commons, enabling changes in the way that Wills can be legally witnessed. The change follows an announcement from the Ministry of Justice earlier this Summer, which recognised the difficulty for those who were shielding from Covid-19 or self-isolating to follow the normal legalities of making a Will – namely it being witnessed by two people. The new law allows the witnessing of a Will to be carried out through video. After the Will is signed by the Testator, it is then posted to the two witnesses to sign through video conferencing too. It applies to Wills made from 31 January 2020 – when the first coronavirus case was registered in the UK – and is expected to remain in place until January 2022. Remember A Charity – the 200 strong coalition of charities working to inspire legacy giving – has welcomed the change, providing that the right sufficient safeguards are in place. Rob Cope, director of Remember A Charity, says: “With over 100 people across the UK leaving a gift to charity in their Will every day, charitable Will-writing is becoming increasingly popular and it’s all the more vital now while charities are facing critical funding shortages linked to the pandemic. Ultimately, the more accessible the UK Will-writing environment becomes, the easier it will be for people to leave a gift in their Will.”

Legacy giving is the largest single source of voluntary income, raising over £3 billion for charity annually. This income has enabled many charities to continue to offer services during the height of the pandemic, while so many other funding streams were closed or heavily reduced, including events like the London Marathon through to charity shops. The consortium highlights that even a small increase in the number of people leaving a gift could raise millions of urgently needed funding, helping to tackle the current funding threat to frontline services. Remember A Charity stresses the importance of always having sufficient rigour and safeguards in place to protect the public and ensure their final wishes will be met. Cope says: “There are few that would argue with the fact that the process of Will-writing in the UK needs updating. At Remember A Charity, we see video witnessing as a significant and welcome step to make Will-writing more accessible in Covid times. However, we’re conscious too that this decision brings in new areas of risk when it comes to issues such as undue influence and fraud. So, in these initial stages at least, we’d view it as a last resort. “In other words, this route is ideal for those that it was created for – those that can’t have their Wills witnessed in person as they are isolating

www.worcestershirelawsociety.com

or for other reasons. But it won’t be right for everybody.” With inheritance disputes on the rise, it seems all the more important that people’s Wills are completed correctly, minimising the room for doubt or contention. Cope adds: “We’d encourage anyone writing a Will to seek professional guidance and support about the best route for them. A professionally written Will is invaluable, helping to ensure that people’s final wishes will be met, and that they can include all those things that truly matter to them; family, friends and good causes alike.” Since the pandemic took hold in the UK in mid-March, 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. He concludes: “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.” Find out more at: rememberacharity.org.uk.

Landmark Planning: A Clearer View of Future Plans recently merged our Plansearch reports into a newly enhanced Landmark Planning. Uniquely, the report displays data on the majority of the UK’s large planning applications, such as a new housing estate, as polygons (boundaries). This means both conveyancer and client will benefit from a visually clearer, more realistic view and understanding of the extent or potential impact of larger planning applications, rather than relying on a list, single mapped point or buffer to work it out.

Here at Landmark Information, we have provided planning application insights and information for residential property conveyancing through for many years. I recall the now legendry Bird & Bird transaction case, in which the conclusion found that ‘Changes to the surrounding environment, brought about through development are an important factor in protecting a client’s investment pre-acquisition’. Of course, a preference or indifference to planning proposals in its various forms is very much a personal view. Property lawyers and conveyancers may air on the side of caution following guidance, preferring to simply understand the proposed purchase property and to rely on the seller’s information. Homebuyers, however, have a right to understand any impact, positive or negative, that a nearby development may have before they commit to a purchase. It is important to be aware of any potential changes within the surrounding area that would affect the use, enjoyment or even value of a property from planning and building regulation decisions. But how do you make the extent of a development application clearly understood? As part of Landmark’s ever-evolving data and technology provision, we have

The report not only delivers details of planning applications from extensions to large developments but also provides information on what future uses of land are being proposed for the surrounding area, alongside the Local Authority policies and constraints. It also includes key neighbourhood information such as: • Housing • Demographics • Schools • Local amenities • Rights of way

allows the homebuyer reduce the amount of data presented and helps to provide focus on what really matters to them. In some cases, reducing hundreds of applications down to just three or four. The Riskview viewer includes (where possible) a clickable weblink for each recent planning application. The homebuyer can then look further into the application via the authority planning portal. Together, RiskView’s unique time-saving features help the property professional add value to their home-buying client whilst reducing time spent dealing with planning related enquiries. The Government is still committed to 300,000 new homes per year even these unprecedented times. The Prime Minister’s 'Build, Build, Build’ speech in July last year was followed by a series of new laws that came into effect on 1 September 2020. The aim is to deliver new homes and revitalise town centres across England alongside a permanent extension to the existing permitted development rights.

To help both property conveyancer and client, all the data within the report is supported by easy-to-understand guidance and next steps.

In the current climate, who can guess the impact of these laws? To what extent will they change the places we live, or want to live?

Determining what is important to the home buyer with regards to planning can be difficult and can lead to large amounts of time being spent on reviewing data which is not of interest or concern to the home buyer. Large volumes of data can also lead to the homebuyer missing important information about their purchase.

Whatever the future holds, surely the best outcome for conveyancers and homebuyers is a more transparent transaction, which provides the insights needed for informed decisions.

Landmark’s gold standard all in one enviro-report RiskView Residential removes this pain for the legal conveyancer and home buyer by presenting planning applications, including the large sites as polygons and constraints through its advanced, simple to use, dynamic online viewer. The viewer includes a date filter which

www.worcestershirelawsociety.com

Selecting the Landmark Planning report or Riskview Residential demonstrates good due diligence in taking all practicable steps to reasonably identify information that the client would want to know.

www.landmark.co.uk By Allie Parsons, Customer Success Consultant, Landmark Information

Revised Anti-Money Laundering Professional Guidance now in Force 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.

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.

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 smaller firms focusing on such areas as family or employment work may now be seen to be regulated firms, and so will need to ensure that the regulatory requirements are now being met.

There is an important cautionary note here if you are one of those many sole practitioners or smaller firms that regard themselves as being outside the scope of 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 year. The revised definition is now described by the regulator as being “broad” and extending “beyond providing advice and includes assistance and material aid”.

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 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

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

www.worcestershirelawsociety.com

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. 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.

LawShare Advert

Bell vs Tavistock: Does informed consent stand in the way of autonomy? 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 rights 3. 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?

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 parents 6. But this could only be done if she demonstrates sufficient maturity and intelligence to understand the nature of the treatment.

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 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.

In DNA testing, too, we must have “appropriate and qualifying” consent for

Unlike contraceptive treatment and anorexia - or even DNA testing - not

www.worcestershirelawsociety.com

enough is yet known about the longterm 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. 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 bones 9. 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. 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.

I nformed Consent | Definition of Informed Consent by Oxford Dictionary on Lexico.com also meaning of Informed Consent

onsent | Definition of Consent by C Oxford Dictionary on Lexico.com also meaning of Consent

K, Gillick v. West Norfolk and U Wisbech Area Health Authority (hrcr. org)

e W (A Minor) (Medical Treatment) R PubMed (nih.gov)

hat are puberty blockers? - BBC W News

ender dysphoria - Treatment G - NHS (www.nhs.uk)

Notes 1

ell -v- Tavistock judgment (judiciary. B uk) uberty blockers: Under-16s 'unlikely P to be able to give informed consent' BBC News uberty blockers ruling: curbing trans P rights or a victory for common sense? | Society | The Guardian

ender dysphoria - NHS (www.nhs. G uk)

ender dysphoria - Signs G - NHS (www.nhs.uk)

ender Recognition Act 2004 G (legislation.gov.uk)

www.worcestershirelawsociety.com

Can your expert truly sign the Statement of Truth? An expert’s report under CPR must conclude with the Expert’s Declaration stating that the expert knows his duty to the court and has complied with that duty. There must then be a Statement of Truth, which used to say: • I confirm that I have made clear which Chris Makin facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. But as from 1 October 2020 that statement is extended, with these words: • I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. It is relevant to consider why these words are added, and particularly interesting to me because it concerns a solicitor, now an ex-solicitor, in my home town of Huddersfield. The relevant case is Liverpool Victoria Insurance Company Ltd -vDr Asef Zafar [2019] EWCA Civ 392, being an appeal by LV= against a sentence of only 6 months, suspended for 2 years, on a medical expert witness on the grounds that it was unduly lenient. The Facts On 3 December 2011 a Mr Mudassur Iqbal was in an RTA. The other driver, at fault, was insured by LV=. Mr Iqbal was examined by Dr Zafar, who ran what the Court of Appeal referred to as an expert witness “factory”. He was able to examine an injured person and produce an expert report every 15 minutes; he produced 5,000 reports a year, and he earned £350,000 for this work in addition to being a full-time GP with the NHS. Dr Zafar did the examination 11 weeks after the accident, and dictated a report in Mr Iqbal’s presence, stating that in his opinion there had been whiplash but it had resolved one week after the accident and Mr Iqbal was fully recovered. The report dated 17 February 2012 went to instructing solicitor Mr Khan of TKW, bearing an expert’s declaration and the traditional Statement of Truth. From a file note at TKW, it seems that Mr Iqbal rang the solicitor to say that he had continuing problems of whiplash. So Mr Khan said he wrote a letter (which could not now be found) to Dr Zafar asking him to produce an amended report. Communication was through an agency, Med-Admin. A secretary asked Dr Zafar if a revised report should be prepared. Dr Zafar agreed, and a report identical in all respects but for the continuing whiplash was produced.

www.worcestershirelawsociety.com

Now the solicitor had two versions of the same report. Regrettably for him, a paralegal put a bundle together which included the wrong, first, report. LV=, recognising the effect on their insurance business if they were to pay out claims based on false expert opinion, sent an investigator to find out from Dr Zafar just what had gone on. Dr Zafar tried to blame others, told lies, and produced a false witness statement with a Statement of Truth. LV= decided to make an example of Dr Zafar, and took High Court action against him (and against the solicitor) for contempt of court. After a lengthy contested hearing, Garnham J found that ten grounds of contempt of court had been proved against Dr Zafar, and he imposed the suspended sentence mentioned above. LV= appealed because they considered it unduly lenient. The Court of Appeal’s view The Court of Appeal took a harsh view of the actions of both Mr Khan and Dr Zafar. Mr Khan was not involved in the Court of Appeal case; his future had already been determined: he was jailed immediately by the High Court, the Law Society intervened in his practice, and he is no longer a solicitor. End of.

As for Dr Zafar, the judgment is well worth a read, and there was repeated criticism of an expert who makes a false declaration. The High Court referred to a fireman in South Wales Fire and Rescue Service -v- Smith [2011] EWHC 1749 who had lied about not having any earnings after his accident, and was jailed. Garnham J, with whom the Court of Appeal agreed, said this: “Those who make false claims should expect to go to prison. Solicitors and expert witnesses who act dishonestly in the evidence they give to the court, whether in support of such claims or otherwise, must expect a similar outcome. Mr Khan and Dr Zafar, you must understand that the proper functioning of the court system depended on your honesty. Your conduct in this case amounts to a fundamental betrayal of the trust placed in you by the court.” The outcome Dr Zafar pleaded financial strain because he had lost his main income. He would clearly not be recognised as an expert again. The court was unimpressed. As for the sentence, the court did find that it was unduly lenient; 6 months suspended for 2 years should have been 9-12 months immediate. But the court contented itself with leaving the suspended sentence undisturbed, but giving guidance for such cases in future. We have been warned. The extended Statement of Truth obliges experts to think very carefully before signing off their reports. And now we all know the reason for this extended wording. Solicitors when choosing experts should be careful not to instruct experts such as Dr Zafar, and solicitors who wish to remain on the roll must not get involved in such affairs. Simples!

Biog: Chris Makin has practised as a forensic accountant and expert witness for 30 years, latterly as Head of Litigation Support at a national firm. He has given expert evidence about 100 times. He also performs expert determinations. Chris is a fellow of the Institute of Chartered Accountants where he has served on the Forensic Committee, and as an ethical counsellor; he is a fellow of the Chartered Management Institute, a fellow of the Academy of Experts where he serves on the Investigations Committee, and a mediator accredited by the Chartered Arbitrators. He practises as a mediator, from his home in West Yorkshire and his rooms at 3 Gray’s Inn Square, London WC1R 5AH, telephone 020 7430 0333. He has mediated 100+ cases so far, on a huge range of subjects, with a settlement rate to date of 80%. For more see his website with videos: www.chrismakin.co.uk chris@chrismakin.co.uk

www.worcestershirelawsociety.com

Top 10 compliance mistakes and how to avoid them Compliance should be neither an afterthought nor a burden – it should be a natural consequence of running your law firm and managing your accounts well. The SRA will tell you that anti-money laundering and mishandling client money are the two most common mistakes law firms make. So how do you avoid the SRA’s intervention? Here are 10 compliance mistakes law firms most often fall foul of: 1. Not paying attention to the latest SRA Accounts Rules: The SRA regularly updates its rules, and it’s up to you to be aware of these changes and understand how it impacts your accounts function. The best thing to do is follow the SRA news and adopt a compliance-centric approach to your business in order to avoid serious SRA Accounts Rules breaches. 2. Incorrectly operating a client account: Ensure your client account includes the required level of information and that you don’t provide banking facilities to clients or third parties. It’s essential that your staff are aware of the relevant money laundering regulations and what constitutes provision of banking facilities. On the same point, don’t suffer lack of understanding about how to operate without a separate client account, should you choose this route. SRA’s Rule 2.2 is all-or-nothing. It gives you the choice of exemption from having a client account (across the whole practice, not on a client-by-client basis). Whilst this may sound like an easier option (and cheaper as you don’t need accountants’ reports), it could create more work by asking clients to pay third parties directly and subsequently making sure these payments have been made. Alternatively, another option permitted by the SRA is Third Party Managed Accounts which can provide client onboarding checks, card processing and outsourced client account services within one solution. You must decide what makes the most sense for your business. 3. Not maintaining a clear breach register: You and your employees must be suitably trained to spot suspected breaches, and you must document how discovered breaches will be rectified and keep a register of this information. 4. Not having a payment of interest policy: Your policy of interest should clearly state how money held in your client account will be handled, including when it becomes due and the rates you’ll use. 5. Not thoroughly checking your residual and suspense balances: Analyse which of these monies you currently hold, determine if you should be holding them, return to the proper recipients where possible, and log what you’ve done if these people can’t be located. 6. Not defining ‘promptly’: This word is dotted throughout the revised SRA Accounts Rules. What ‘promptly’ means to one

person is different to another. Choose suitable timeframes for your firm and clarify in your office policies. 7. Not setting realistic service level agreements (SLAs): There’s no point in setting impossible-to-meet timescales. For example, if you’re a rural practice with no easy access to a local bank or building society, don’t set tight timings regarding paying in cheques. Instead, be honest and upfront about what’s feasible for your unique circumstances and incorporate that into your contracts and policies. 8. Not supporting your COFA: Your accounting system should allow you to produce a tri-balance comparison of your client bank, cashbook and client ledger balances. By checking and signing a report of this nature, your COFA can meet his / her SRA obligations and you’ll have the visibility you need to make sure compliance measures are being met. 9. Purchasing the wrong legal accounts software: Ask for recommendations from trusted peers of what works best for them. Be sure to probe any potential software provider about how they handle system enhancements to address everchanging rules. Your supplier should be rolling out new and enhanced functionalities which allow you to streamline compliance procedures and ensure you’re constantly protected. 10. Not collaborating and communicating effectively: Compliance is not a one-person task. It’s the duty of everyone in your organisation from your cashiers and compliance officers to senior leaders and solicitors. Seek input from all stakeholders when reviewing compliance-related policy documents and roll out updated documentation with appropriate training company-wide. Keep your accountant informed always so audits can be done quickly and efficiently. Summary: Hopefully our tips will help you fulfil your regulatory compliance responsibilities with ease. This excerpt is taken from our ’15-Step Guide to Starting Your Own Law Firm’. To download our guide in its entirety, and learn how to keep client money safe and avoid money laundering scams, please visit www.quill.co.uk/ Legalpracticemanagementforstartups.

Julian Bryan is the Managing Director of Quill, which helps law firms streamline, and run their practice better and compliantly by providing simple and easy-to-use legal accounting and case management software, as well as outsourced legal cashiering services.

www.worcestershirelawsociety.com

Julian is an advocate for quality software standards and served as the Chair of the Legal Software Suppliers Association from 2016 to 2019. He can be reached at j.bryan@quill.co.uk.