Pears Magazine issue 41

Issue 41 Winter 2022

Christmas quiz winners:

Greens Solicitors P.25

ALSO: Popular Lawyer retired after 45 year career • Merger of Hallmark Hulme and Whatley Weston & Fox • Promotions at various law firms

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Issue 41 Winter 2022 4 5 6 6 7 8 8 9 9 10 10 11

Committee Members and Member Firms President’s Introduction Two new partners lead promotions round at HCR Popular Worcestershire lawyer retired after 45-year career Christmas charity donations by QualitySolicitors Parkinson Wright Concern as Covid surge risks employment tribunal backlog Beating Burnout – mental health and the workplace in junior lawyers Silverback Law launches brand new Insolvency Service MFG announces link up with local hospice Continuing success for local law firm Painters Law LLP Silverback Law gets on the case to provide matchday kits for Stratford girls Promotions following strong 2021 for Bradley Haynes Law

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The employment status of a company director in Rainford v Dorset Aquatics Ltd Index PI – it’s all about People & Service this month Merger of leading law firms Hallmark Hulme and Whatley Weston & Fox Phoenix companies – what are they and are they legal?

Managing your Professional Indemnity Insurance Will Aid – a third of UK parents haven’t named a guardian for their children in their will ONSIDE Advocacy Merry Quizmas and Happy New Year Family tree verification – don’t rely on what the family tells you When your SJE gives the “wrong” answer How can law firms reduce their carbon footprint?

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Committee Members

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

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

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

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

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

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

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

Andrew Chandler Committee Member mfg Solicitors LLP andrew.chandler@mfgsolicitors.com

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

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

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

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

Jessica McSorley Committee Member mfg Solicitors LLP jessica.mcsorley@mfgsolicitors.com

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

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

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

Worcestershire Junior Lawyer Division

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Victoria Zinzan Trainee Solicitor mfg Solicitors LLP Chair Victoria.zinzan@mfgsolicitors.com

Georgina Hunt Trainee Solicitor Harrison Clark Rickerbys Vice Chair ghunt@hcrlaw.com

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

Olivia Jubb Paralegal Harrison Clark Rickerbys Secretary ojubb@hcrlaw.com

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

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

Charlette McDermott Paralegal Bradley Haynes Treasurer Charlette@bradleyhayneslaw.co.uk

Lucy Harrold Trainee Solicitor mfg Solicitors Social Media Secretary lucy.harrold@mfgsolicitors.com

Marina Akram Solicitor Silverback Law Social Secretary marina.akram@silverbacklaw.co.uk

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

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President’s Introduction Happy New Year to all our members!

May I take this opportunity to wish you all a happy, healthy and successful 2022. No doubt by the time the issue reaches you, we will all be a few weeks into the year and therefore, I hope all is going well!

Welcome to the Winter edition of the Pears Magazine.

In 2021 it was a pleasure to get back to some sort of normality and be able to bring to you the annual Worcestershire Law Awards. Towards the latter part of the year, a WLS favourite, the Christmas Quiz Night was able to proceed. … Thank you to those that joined us and well done to the winners, Greens Solicitors!

The committee and I are busy putting the finishing touches to the WLS 2022 event schedule. As the county continues to transition from online to in-person meetings, we are planning a

number of seminars, networking and social events to bring to you and your firms. A press release will be circulated to you and your firms shortly. I hope to be able to meet with you in person this year!

The WLS remain committed to supporting legal professionals, building relationships, learning and supporting one another.

If there is anything either I or the committee can do to assist you please do not hesitate to contact me.

Charlotte Perry President, Worcestershire Law Society 2021-2022

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News News News News News News Two new partners lead promotions round at HCR Two new partners lead the latest promotions round at Harrison Clark Rickerbys (HCR) – real estate Worcesterbased lawyer Nathan Guest, head of the firm’s plot sales team, and Katherine Hague, from the Cambridge private client team.

Dawn Oliver, the firm’s senior partner, said: “These promotions, which are so thoroughly deserved, come at a very exciting time for the firm – our merger with Hewitsons has brought us new areas to explore and expand into, and added to our talent pool. This adds up to a very bright outlook with plenty of opportunities for people at every level.”

Harrison Clark Rickerbys has more than 800 staff and partners based at offices in Birmingham, Cambridge, Cardiff, Cheltenham, Hereford, London, Milton Keynes, Northampton, Thames Valley, Worcester and the Wye Valley, providing a complete spectrum of legal services to both business and private clients regionally and nationwide.

The firm has a number of highly successful teams specialising in individual sectors, including health and social care, education, technology, agricultural and rural affairs, finance and financial services, defence, security and the forces, and construction.

Nathan Guest They are joined in their celebrations by new senior associates Bradley Amorgie and Brendon Lee, both in the Cambridge real estate team, Rowena Kay from the employment team and Ian Seymour from the dispute resolution team, both in Cheltenham, Pearse Sheehan from the London corporate team and Nerys Thomas from the Cardiff private client team.

Popular Worcestershire lawyer retired after 45-year career A respected Worcestershire solicitor passed on the baton to the next generation after over four decades in the legal profession.

Moving up to become associates are Jamie Davies (private client) and Kevin Mahoney (commercial) both in Cheltenham, Daniel De Saulles (commercial) in Worcester, Chris Finch (family) in Hereford, Sardeep Gill (real estate) in Cambridge and Stephanie Pincher (Medical Accident Group) in Birmingham.

In the firm’s sister company Eagle HR, based in Worcester, Sally Clive becomes an HR adviser and Stephanie Hallett becomes an HR consultant.

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Ben Rothery and Peter Copsey

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Commercial property expert Peter Copsey, a consultant and former partner and vice chairman at law firm mfg Solicitors, retired at the end of 2021 after a career spanning almost 45 years.

Mr Copsey, 66, joined mfg Solicitors in 1984 and became a partner just 18 months later. He went on to handle a number of high profile agricultural, commercial and corporate cases, also playing a role in a number of local charities.

A popular across the to partner expert, Ben closely with

and well-known figure county, he handed over and commercial property Rothery, who has worked Mr Copsey for several years.

Peter Copsey said: “After nearly 45 years I felt it was the perfect time to retire at the end of last year and pass things onto the next generation.

“I’ve loved meeting with and advising so many people over the years but it’s time to take it a little easier and spend more quality time with my wife Irene, my children, my young grandchildren and my elderly mother. I am also looking forward to travelling more.

“We have a magnificent group of hugely talented young lawyers coming through here at mfg Solicitors and Ben is the perfect person to take our commercial property work forward. Our clients are

News News News News News News in good hands and I wish everyone well for what I am certain will be a successful future.”

Maynard Burton, chairman of mfg Solicitors added: “I have had the pleasure of working closely with Peter for the whole time he was with the firm. I cannot speak highly enough of him as a solicitor and as a person.

“He really is such a popular person and that’s because of his kindness, hard work and willingness to help anyone. We will miss him but I know he is going to enjoy a really happy and well-deserved retirement, safe in the knowledge he is passing things on to Ben who is a real rising star in the legal industry.

“On behalf of everyone here at mfg Solicitors, I’d like to wish Peter all the best in his retirement and I know we will stay in close touch with him.”

During his retirement Mr Copsey will remain in his role as a governor of local charity Sebright’s Educational Foundation and will continue as a trustee of several will trusts. A ‘fair-weather’ supporter of West Bromwich Albion Football Club, he also plans to continue cheering on the team at The Hawthorns as often as he can on dry, sunny match days.

Christmas Charity Donations by QualitySolicitors Parkinson Wright

Sam Thompson

After another difficult year for many families as a result of the global pandemic, QualitySolicitors Parkinson Wright spent the latter weeks of 2021 collecting donations and purchasing festive goods to deliver to two local charities.

The firm’s nominated charity West Mercia Women’s Aid provides invaluable assistance to victims of domestic abuse throughout West Mercia and Gloucestershire. Their work includes 24 hour domestic abuse helplines, refuge, and recovery support for survivors. They also support children and young people who have been affected by domestic abuse. QSPW works closely with the charity in recognition of the extraordinary work they do and the vulnerable people they help.

The firm have been supporting WMWA since 2013. In December 2021, Paulette Clarke organised a collection to purchase a selection of toys for children who would be spending Christmas in a refuge.

Paulette is pictured below with a selection of the toys.

Sam Thompson at our Evesham office arranged for donations of food and healthcare products to be provided to a local charity, Caring Hands, who offer support to the homeless and vulnerable in the Vale of Evesham area. Caring Hands was founded in 2003 and support people in need on a referral basis. The growing success of the charity has resulted in them now looking to obtain their own building, the Lighthouse Centre, which will be a hub for services for the homeless and those on low incomes.

Sam, pictured above, delivered treats and essentials donated by staff in the Evesham office, which were used by the charity as part of Christmas Hampers and food parcels, and also in their drop-in diner over the festive period.

The firm is pleased to be able to make a continuing contribution to vital local charities such as these, and would encourage any readers to have a look at the incredible work that these charities do for members of our community:

Paulette Clarke

https://www.westmerciawomensaid.org/ https://www.chands.org.uk/

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News News News News News News Concern as Covid surge risks employment tribunal backlog Employment disputes will take longer to resolve if the re-surgent coronavirus creates a tribunal backlog, a lawyer has warned.

Chris Piggott Chris Piggott, partner at Worcestershire law firm mfg Solicitors, said employment tribunals were still trying to catch up after almost two years of lockdowns and restrictions since Covid-19 first hit – and now faced further disruption because of the Omicron variant.

The employment lawyer is warning that bosses and employees who are in dispute could face a long wait for a ruling and resolution – on top of delays lasting a year or more already - if the new variant causes sickness among tribunal staff or leads to new restrictions on tribunals.

He is also expecting to see a rise in cases as employers and their staff dispute how to adapt to a hybrid way of working or working full time from home.

Mr Piggott said: “Employment tribunals have been a concern for years. Even before the pandemic, we’ve seen a fall in the number of judges and staff combined with a surge in cases ever since tribunal fees were scrapped in 2017. Add to that the backlog of cases caused when everything had to shut down and move online in the first stage of the pandemic, and the workload is building up and up. Some cases are taking 12 months or longer to be heard.

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“If Omicron causes the re-introduction of restrictions, we can expect a double hit on tribunals. Firstly, cases will take longer to process. Secondly, we will see a rise in demand as employers and employees find themselves in disagreement over matters such as flexible and hybrid working or the arrangements for working from home, furlough payments or holiday accrued during lockdown.”

Mr Piggott said employment tribunals were adapting by introducing remote hearings and more use of technology, but that it will take time for these to clear the backlog. He added: “The most important thing for employers and employees alike is to try to resolve these matters amicably and avoid the need to wait for a tribunal. Mediation can make a huge difference. Both sides need to ensure they have received the right legal advice and understand the options available to them to try to come to a resolution that works for everyone.”

For advice on employment contact Chris by emailing

matters

chris.piggott@mfgsolicitors.com or calling 0121 2367388.

Visit www.mfgsolicitors.com for more information.

Beating Burnout – mental health and the workplace in junior lawyers Contrary to popular belief, lawyers are not super-humans. The industry year on year is becoming increasingly more competitive and cut-throat, resulting in junior lawyers pushing themselves to the limit, whether that be by getting in the most billable hours, attending the most extra-curricular events or going above and beyond to impress supervising partners. For example, the 2018 Legal Trends Report which stated that ‘75% of lawyers frequently worked outside of their regular business hours, some up to 140 hours a week’.

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Victoria Zinzan Whilst law is one of the most intellectually challenging professions to work in, the job itself is often sedentary which contributes to us professionals feeling imbalanced and more vulnerable to mental illness. A simple google of ‘characteristics of a lawyer’ will throw up terms such as passionate, intelligent, confident, perseverant, resilient, however promoting an unrelenting standard which junior lawyers feel pressured to meet is unhealthy and frankly, unnecessary.

Burnout is often dubbed as an occupational phenomenon rather than a recognised mental illness, which devalues its seriousness and furthers lawyers fear of implications to their career if they speak out about their mental health struggles.

The Junior Lawyers Division 2019 survey which reported that ‘95.3% of respondents experienced mental-ill health’, which leads to the question of how many sought help?

Despite the harrowing statistics and perception of our profession, law firms are increasingly acknowledging the risk and actively working towards avoiding burnout culture and offering support to junior lawyers at this key time in their career journey. Additionally, the Law Society are encouraging member firms to provide training for mental health education, signposting sources of support and how to embrace a way of hybrid working.

Further to this, there are many independent charities which work towards promoting good mental health

News News News News News News and wellbeing in the legal profession such as LawCare and LegalMind.

As the world evolves and appreciation and recognition for the importance of mental health is growing, especially after the Covid-19 pandemic, hopefully a shift to a healthier way of practicing law is in the horizons.

insolvency practitioners, SMEs, creditors and debtors on all aspects of corporate and personal insolvency, including restructuring, both in relation to contentious and non-contentious matters.

More information on the key features of the service will follow in the coming weeks via their Linkedin profile at:

Street office which saw staff raising £230 by selling homemade cupcakes and hosting a raffle – all based on a Primrose Hospice yellow theme.

Carol Godwin, conveyancing administrator at mfg Solicitors, said: “So many staff here at mfg know the amazing things Primrose Hospice does for its patients and their families every day so we are delighted to be supporting them as our local office charity over the next 12 months

Silverback Law launch brand new Insolvency Service

www.linkedin.com/company/ silverback-commercial-law-serviceslimited

Redditch-based Silverback Law are always looking at ways they can grow their business and increase their service offering to their clients, so after months of planning they are delighted to finally launch their brand new Insolvency Service, led by new team member and Head of Insolvency, Alison Beard.

Alternatively, you can contact them by ringing their office on 0844 967 2700 or by emailing enquiries@silverbacklaw.co.uk

“They provide a vital service for the community and we are looking forward to doing all we can to help through the many events we have planned and present the charity with a healthy cheque this time next year.

Bromsgrove law firm announces link up with local hospice

Abi Coulson, corporate fundraiser from Primrose Hospice added: “We really were delighted when we heard we had been chosen by mfg’s staff in Bromsgrove.

A Bromsgrove law firm is set to support a local hospice for the next 12 months as part of a new charity partnership.

Staff at mfg Solicitors have voted for Primrose Hospice to be its local charity for the next year with a variety of events planned to support fundraising for people living with life-limiting illnesses and their families and loved ones.

Alison Beard

The new link-up kicked off with a fun ‘Primrose Day’ event at the firm’s High

“Carol and the team are already working hard to help us raise much-needed funds and I was also pleased to attend the recent Primrose Day to give a little more insight into what we do and how fundraising money is spent. We can’t thank everyone at the firm enough and look forward to getting involved in all the fantastic ideas they have planned.”

Throughout the year staff at mfg Solicitors will be hosting a wide range of events including dress down days, a netball

The service is focused on acting for creditors and office holders to consider what their insolvency options are, and offers comprehensive advice on all aspects of corporate and personal insolvency. This could be anything from asset recovery and investigations, fraudulent/wrongful trading, office holder appointments, directors loan account collections and investigating and advising on antecedent transactions.

Alison qualified as a solicitor in 2000 and as an insolvency practitioner in 2007, after successfully passing her JIEB exams. She has over 16 years’ experience working in insolvency and advises

Carol Godwin, Abi Coulson and Becky Husband

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News News News News News News tournament, regular raffles and book sales to raise money. A variety of Christmas events were also planned as the festive season approached, which included donations of chocolate selection boxes.

Primrose Hospice is required to fundraise £1.75 million every year to keep running all its services, but receives less than 15% of this requirement through statutory funding.

The charity relies heavily on voluntary donations. It offers day therapy, occupational therapy and physiotherapy, alongside its Family Support Centre which provides bereavement and counselling support to families, loved ones and children in the local community.

Managing Members of the LLP Rosalind Greig and Lee Baron to become Managing Members of the LLP.

Silverback Law director Victoria Rofe (pictured below with the girls in their new kit) explained: “As a business we are always looking to give something back and were delighted to step in and help when we heard the girls needed new match kits.

We are looking forward to seeing them keep up their good form and continuing to challenge at the top of their league.”

Aside from its office in Bromsgrove, mfg also has offices in Kidderminster, Worcester, Telford, Ludlow and Birmingham.

Continuing success for local law firm An established local law firm has sealed its strategy to continue to prosper and grow by converting the business to a Limited Liability Partnership and promoting several experienced and prominent lawyers within the firm.

Painters Law LLP (formerly Painters Solicitors) has been successfully serving Wyre Forest and surrounding areas for over 70 years. The Partners believe that this latest strategy will enable the Firm to continue to grow and prosper despite the difficult times that many businesses have experienced over the last 18 months.

Silverback Law gets on the case to provide matchday kits for Stratford girls Stratford Town under-16 girls football team are now able to line up in new

Managing Partner Meera Khosla said that the development was “significant” and would provide the Firm with strong foundations to “push forward and demonstrate our ambition in the legal market.”

The Firm promotes Julie Fisher – Head of Litigation, to the role of Associate and announces the following promotions of longstanding staff who join Meera Khosla,

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match kits thanks to a generous donation from Midlands-based commercial law specialists, Silverback Law.

Team with Victoria Rofe

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Silverback Law provides an extensive range of services for businesses in all sectors, ranging from debt recovery, business recovery and insolvency, to corporate and commercial services and dispute resolution. Further information can be found at www.silverbacklaw.co.uk You can learn more about Stratford Town Women & Girls FC, and the football they offer across various age groups, at www.stratfordtownfc.co.uk

Promotions following strong 2021 for Bradley Haynes Law Bradley Haynes Law has announced 4 promotions to start 2022.

Amar Mehta in the Corporate/Commercial team moves to Associate Solicitor, as does Sophie Mason in Conveyancing.

Helena Palomino is promoted in seniority within the Commercial Property team.

Patricia Marleau progresses from Immigration Advisor to head up Immigration Services.

Andrew Bradley said of the promotions: “Bradley Haynes saw an exceptional 2021 with a substantial increase in year on year revenue driven by our fantastic team, whose efforts have been amazing. One of our core values is to offer opportunity and progression to every single member of our team and so it is very fulfilling to be able to make these promotions, which are each incredibly well deserved. In addition we are delighted to have implemented a universal percentage pay rise for the team for 2022, as well as making various interim bonus payments throughout the year of 2021. We have also added some fantastic new members of our team in 2021 and we look forward to continued growth and headcount in 2022, as our existing practice areas continue to flourish and we look to add new specialisms to our offering.”

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The employment status of a company director in Rainford v Dorset Aquatics Ltd Rainford v Dorset Aquatics Limited (EA-2020-000123-BA) [ ] paragraph number of the Employment Appeal Tribunal’s (‘EAT’) judgment Parties referred to as they were in the Employment Tribunal (‘ET’)

Introduction 1. In this case the EAT considered the employment Daniel Brown status of a statutory director and 40% shareholder of a limited company. The only other (60%) shareholder was the Claimant’s brother.

2. There was no dispute that the Claimant carried out work and received (latterly) £1,500 a month from the Respondent [8]. The Claimant received this monthly payment regardless of the hours he worked. This Claimant’s brother received the same monthly payments.

The monthly payments were subject to PAYE and national insurance contributions but this was purely for tax reasons, on the advice of company accountants [8].

3. The Claimant and his brother also jointly agreed the amount to be paid to themselves by way of dividend (each brother received an amount proportionate to his shareholding) [8].

4. The Claimant had no written contract of employment, service agreement or other written terms. Moreover, there was no evidence before the ET of any relevant oral agreement [4].

ET’s judgment 5. The ET found that the Claimant was not an employee nor a worker of the company. In addition, the ET concluded that the Claimant was not in business on his own account. In other words, the Claimant did not fall into any of the categories referred to in s.230(3) Employment Rights Act 1996 (‘ERA 1996’).

6. The ET also found that the Claimant had a right of substitution and was therefore not required to perform work personally.

While there was no evidence that

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the Claimant had ever made use of a substitute, the ET’s conclusion was based on the evidence of the Claimant’s brother, that he would not have had a problem with the Claimant using a substitute.

Grounds of appeal 7. The first ground of appeal contended that because the company was not the Claimant’s client or customer, as a matter of law, the Claimant must be a worker or employee.

8. The second ground of appeal suggested that the ET erred in law by implying a right of substitution into the agreement between the parties.

9. The third ground of appeal asserted that the ET had treated the Claimant’s status as a company director or shareholder as mutually exclusive with employee or worker status.

10. There was a fourth ground of appeal related to the adequacy of the reasons given for the ET’s conclusion as to when any worker relationship would have ended; ultimately the EAT accepted that the ET had given adequate reasons for its conclusion on this issue [30]. As this ground of appeal does not concern the law on employment status, it is not considered further below.

EAT’s judgment 11. The EAT started by noting that this was a case in which there were no express contractual terms such that, if any employment or worker contract existed, it was necessarily one implied from the conduct of the parties and any other relevant circumstances [14].

The decision about whether such a contract should be implied is one of fact for the ET [14]. Accordingly,

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the EAT may generally only interfere if the decision is perverse or if the ET took into account irrelevant factors/ excluded relevant considerations.

12. The EAT held that in cases of this kind, where the employment status of a company director is in issue, the directly relevant case law is Clark v Clark Construction Initiatives Ltd [2008] ICR 635 (EAT, Elias J), Secretary of State v Neufeld [2009] EWCA Civ 280 and Dugdale v DDE Law Ltd (unreported, EAT, HHJ Richardson) [15].

13. Helpfully, the EAT summarised the principles derived from Clark and Neufeld in the following terms [16]: (1) There is no reason in principle why someone who is a shareholder and director of a company cannot also be an employee, even if the person has total control over the company; (2) Whether the shareholder/director is an employee is a question of fact for the tribunal; (3) In cases where matters have been dealt with informally it may be a difficult question as to whether the correct inference is that the shareholder/director was truly an employee; (4) In considering the issue it will be necessary in particular to consider how the parties have conducted themselves, what they have actually done and how they have been paid; (5) Where the conduct of the parties is inconsistent with the existence of a contract of employment or is in some areas not governed by such a contract, that will be an important factor pointing

away from a finding that the shareholder/director is an employee; (6) It follows that the lack of any written employment contract or other record thereof, is likely to be an important consideration; (7) The fact that the shareholder/ director has control of the company or that his personal investment in it will stand to prosper with the company will be “part of the backdrop” but will not ordinarily be relevant to the issue and can and should therefore be ignored (see: Neufeld para [86]).

14. The EAT also held that the payment of a “salary” with payslips and PAYE/ national insurance deductions may be of little significance in a case where it is organised entirely by a company accountant for tax reasons without any particular awareness on the part of the putative employee and only covers a small part of the payment made to a shareholder/director [17(4)].

15. More generally, the EAT affirmed that, in accordance with the Supreme Court’s judgment in Uber v Aslam [2021] UKSC 5, the primary underlying question in cases concerning employment status is one of statutory rather than contractual interpretation; the relevant statutory purpose of the ERA 1996 is the protection of workers who are vulnerable because they are in a relationship of subordination and dependence; a “touchstone” of such subordination and dependence is the degree of control exercised by the putative employer over the individual concerned [17(1)].

16 The EAT also reiterated that, as established in Carmichael v National Power Plc [1999] ICR 1226 (HL) and Autoclenz v Belcher [2011] UKSC 41, it is open to the ET to take the parties’ subjective views about their obligations into account in ascertaining the terms of any agreement and a genuine right of substitution is inconsistent with an obligation to perform work personally, even if it is not used [17(2)-(3)].

17. Applying the above principles to the grounds of appeal, the EAT held as follows.

18. Ground 1: the fact that the Claimant carried out work for the company and received money from the company does not mean that one of the three categories of contract specified in s.230(3) ERA 1996 must exist; it is possible for working shareholders/ directors to organise their relationship through the company’s corporate structures without individual contracts of employment [20]. This possibility must be present in the case of a very small company owned and run by two brothers [20].

19. The statement made by Lady Hale at paragraph 31 of the judgment in Clyde & Co v Bates van Winkelhof [2014] UKSC 32, concerning the distinction made in employment law between employees, workers and those who work on their own account for clients and customers, was not intended to mean that every individual who does work for another and receives money must come within one of those three categories [21].

20. For the reasons above, Ground 1 was dismissed.

21. The EAT held that Ground 2 was misconceived as there was no contractual agreement into which any right of substitution could be implied [22]. However, in any event, it had been open to the ET to take into account the evidence of the Claimant’s brother to the effect that he would have had no problem with the Claimant using a substitute [23].

22. The EAT accepted that it would have been an error of law for the ET to have regarded the Claimant’s status as a shareholder/director as exclusive of employment or worker status but it did not accept that the ET had approached matters in that way [25].

The Claimant’s status as a shareholder/ director and his family relationship with the only other shareholder/ director were not completely irrelevant in the exercise of deciding the Claimant’s

employment status; the ET was not bound to disregard these matters [25].

Given that the putative employer was a two-brother company in which the Claimant was one of the brothers, it was open to the ET to give the issue of the Claimant’s integration into the business next to no weight [25].

Ground 3 was therefore also dismissed; the ET took into account relevant factors and the decision was not perverse [29].

Comment Decisions on employment status are notoriously fact specific and this judgment does not change that.

However, this case may be significant in relation to small companies where no terms of service are in place.

It demonstrates that the mere fact that a director has done work for and received payment from a company will not always be sufficient to establish a worker or employment relationship; it may not be necessary to imply such a relationship if the evidence suggests that the parties intended to operate purely through corporate structures. Even where a director receives regular monthly payments subject to deductions in respect of PAYE and national insurance, this may not carry much weight if the arrangement was in place purely for tax reasons.

This article is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author.

If you seek further information, please contact the 3PB clerking team.

Daniel Brown Barrister, 3PB Telephone: 0330 332 2633 daniel.brown@3pb.co.uk 3pb.co.uk

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Leading law firms Hallmark Hulme and Whatley Weston & Fox negotiated a deal which sees the merger of two of Worcestershire’s longest standing firms

The relationship between the two firms is significant in that there is an enormous overlap of the type of work on which both firms advise – residential and commercial property, Probate, Wills & Trusts, employment law, family, dispute work and Charitable Trusts.

The complementary service offerings will provide a strong platform for the future embracing the expertise of well respected solicitors backed up by support staff & the latest technology available.

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Both firms are keen to stress that changes will not impact clients in any way.

Rebecca Widdowson, Managing Partner with Hallmark Hulme said “The firms have enjoyed a good working relationship over a number of years the attraction for us lies in the synergy between us. This opportunity provides both firms and their clients with a continuation of the excellent service they have enjoyed to date.”

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Andrew Duncan of Whatley Weston & Fox added “This is an excellent opportunity that will bring significant benefits to both our client bases. Both firms are well established in the area and this merger is a perfect fit in terms of practice strengths, attitudes to client service and culture. It will be business as usual but with more capability and resources.”

The merger completed on 1st January 2022 and the new firm will practise as Hallmark Whatley Hulme.

Phoenix Companies what are they and are they legal?

Phoenix Companies – what are they and are they legal?

The phoenix is an immortal colourful bird associated with Greek mythology with supernatural powers to come back to life. It is often said to have “risen from the ashes”.

Today, a phoenix company is used to describe a business that has purchased, or had transferred to it, the assets of an insolvent company. When the insolvent company ceases to trade, the phoenix company continues to operate in the same way as the insolvent entity, using its former assets, but without its debts. These two entities often have common directors.

After the asset transfer the insolvent company may enter formal insolvency proceedings, such as liquidation or administration, or simply be dissolved.

What is involvement?

For the purposes of Section 216 of the Act, a person would be considered to be involved in a phoenix company if they were: • a director of a company known by a prohibited name; • in any way concerned with or taking part in the formation, promotion or management of such a company; or • in any way concerned with or taking part in the carrying on of a business (which includes unincorporated businesses, unregistered companies, sole traders and partnerships) with a prohibited name.

What is a prohibited name?

Are Phoenix Companies Legal?

Yes, they can be, but only if the strict rules and regulations governing them are complied with.

The legislation that governs this is Section 216 of the Insolvency Act 1986 (“the Act”). If this is not adhered to the individuals involved in the management of the phoenix company may be subject to criminal and/or civil sanctions and liabilities.

A prohibited name is one by which the insolvent company was known at any time in the 12 months before it was placed into insolvent liquidation or, one so similar to that name so as to suggest an association with that company. This does not only apply to a company’s registered name but also to any trading names and/ or abbreviations associated with it.

Who decides if a name is prohibited?

What the Law Says?

When a company is placed into insolvent liquidation, s216 of the Act prohibits its current directors and shadow directors (or anyone who has been appointed or acting as such in the 12 months before the liquidation) from their “involvement” in another company or business with the same or similar name as the company in liquidation for five years, starting on the day that the company went into insolvent liquidation. This may include existing companies/trading entities as well as those that have been recently incorporated and/ or commenced.

Ultimately this would be a matter for the Court. However, in most cases, such clarification is not required. It is a matter of common sense and whether a lay person would associate the two trading entities by their names. It is of note that any Court asked to consider this would also take into account the nature of the businesses, trading styles and other factors.

Alison Beard • when the directors and/or shadow directors who have been involved in the insolvent company give the prescribed notice to the creditors to the insolvent company, before a breach has occurred, that they are, or are to be, involved in a company that is acquiring the whole or substantially the whole of the insolvent company’s business from either the liquidator (or administrator) appointed to the insolvent company; • the directors and/or shadow directors make a successful application to court for permission to be involved in an entity using the prohibited name; and • the company with the prohibited name has been operating (and not dormant) for at least 12 months prior to the insolvent company going into liquidation.

Before any of these exceptions are relied upon it is strongly advised that the individuals involved ensure that they receive legal advice before a breach of s216 of the Act takes place.

Exceptions

What if s216 of the Act is breached?

There are three statutory exceptions when an individual will not be deemed to have breached s216 of the Act which are:

If a person acts in breach of s216 they may be subject to both criminal and/or civil sanctions.

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Phoenix Companies (continued from page 17) • Under criminal law, the individual is liable to imprisonment or a fine, or both if convicted.

• Under civil law the individual could be prosecuted for disqualification as a company director.

• Under civil law the individual is automatically jointly and severally liable with the new business/company, and anyone else acting in breach of s216 of the Act in relation to the same, for the “relevant debts” of the new company, even if it is a limited company or partnership.

What constitutes the “relevant debts” will be fact dependant, but they will be those debts and liabilities incurred by the new company, during the period that it is known by the prohibited name.

Accordingly, a creditor of a new company using a prohibited

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name can bring a civil action directly against those individuals involved in its management. They do not need to pursue the company itself, although, if it is not in an insolvency process, it may be worth bringing an action against multiple defendants.

Conclusion Although a phoenix company can be beneficial for its directors and its creditors it is often not done correctly leaving creditors aggrieved, whilst the individual involved are not aware of the personal liability they may be exposed to.

If you are a creditor of what you believe is a phoenix company, particularly one that has subsequently been placed into an insolvency process, you may wish to seek advice on the options available to you and the potential parties that you can pursue for the recovery your debt.

Managing your Professional Indemnity Insurance

It is fair to say law firms have had a difficult time in the last three years renewing their Professional Indemnity Insurance (PII). A firm mentioned to me back in October that in the last three years they have had an accumulative increase of 63%. They had not gone through any specific change during that period.

This was just a result of general rate increases from one year to the next. This example is not unusual, particularly if a firm practices in high risk areas of law.

What are the reasons for such increases?

During the “soft market” years (an extremely competitive cycle), premiums collected by insurers were not sufficient to pay for claims during those policy years.

A PII policy is written on a “claims made” basis and in its very nature there is a long tail to claims which results in claims being made say in 2014 but not being finalised until some 4 or 5 years later. The basis of insurers making profit rests on the premise that they have sufficient funds to pay for claims and operating costs. If this isn’t the case something eventually gives. The PII market as a whole, particularly after the Grenfell tragedy, resulted in many insurers cutting back on risks they were willing to write with some insurers completely withdrawing from the PII market. This eventually led to a lack of competition which escalated further during the Covid 19 pandemic as insurers became even more wary of certain risks and the effects the pandemic would have on the economy and how firms had managed remote working and increases in work-loads.

What can Firms do to manage PII premiums?

The increase example given was not as a result of a significant change to the firm during that period such as increased work or a deteriorating claims record. Firms who have experienced such changes are likely to have had larger increases! A firm’s claims experience is a huge driver on their PII premiums, if a firm shows a poor claims history, rates will be far higher and reduces a firm’s ability to obtain alternative terms. A law firm should demonstrate why their firm stands out, if they adopt strict risk management procedures and have invested in new case management systems and IT security/software in recent years, tell your insurer and explain the benefits this has had to your firm. Explain in detail how you have managed your business and remote working during the pandemic. If you have been unfortunate to have had a claim explain how it went wrong

and what the firm has implemented since to avoid a similar claim from occurring. Underwriters look for reassurance.

Speak to your Insurance Broker at an early stage of the renewal process. Find out whether there is a potential issue with your risk (i.e. a recent claim) which requires more time and understanding. Engage with your Broker to assist them with putting your risk in the best possible light to both your current insurer and any potential alternative insurers.

What is the outlook for 2022?

We will have more idea after the April 2022 season but firms must prepare on the basis of what it has been like in recent years.

We do not see any new insurer(s) coming in to the market at this time and existing insurers are still likely to be cautious on which risks they will be willing to write.

At some point competition will return to the PII market but given the changing working environment, uncertain times and the ever increasing claims costs I cannot see we will get back to the soft market of the middle teens for some time.

If you have any concerns regarding professional indemnity please do not hesitate to contact TLO Risk Services for guidance.

James Brindley Account Executive TLO Risk Services Limited, 10 Tenby Street Birmingham B1 3AJ DX712083 Birmingham 29 Tel: 0121 212 9090 Fax: 020 7183 4926 Mobile: 07375 508 131 Email: james.brindley@tlorisk.com www. tlorisk.com

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ONSIDE Advocacy ONSIDE is a local charity working across Worcestershire & Herefordshire to provide a wide range of services that aim to ensure fairness and equality, improve physical and mental health and wellbeing, and give people a voice in decisions that affect them.

ONSIDE work with people who may be vulnerable disadvantaged or simply finding life`s challenges difficult to help them live the best life possible.

ONSIDE services include Advocacy, Social Prescribing, Lifestyle advice, Wellbeing coaching, Community Mental Health Transformation, Dementia Support and the PLUS service which helps people who are experiencing loneliness or isolation.

totally independent from the local authority and remain unbiased to ensure clients are treated fairly and with respect.

So often the parents we support need help accessing a solicitor, are unsure about their rights and where to get information, feel overwhelmed and/or confused about their situation and simply find it hard to say how they feel.

Our advocates play a key role on many levels from supporting the parent to understand and uphold their rights, helping them to understand the relevant information, provide independent advocacy and ensure their views and wishes are represented. We even accompany clients to meetings, court

In 2021 we were delighted to be selected

by Worcestershire Law Society as their charity of the year and are extremely grateful for the support and fundraising that has taken place. It will make a huge difference to the people in our community that we support. We would like to take the opportunity to share with you some information on one of our projects and demonstrate to you just how much of a difference your support can make to some of the vulnerable and disadvantaged people we support.

ONSIDE Parents Support Advocacy ONSIDE provide a free advocacy service for parents to support them during assessments and proceedings. We are

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hearings and other appointments related to the care of their children – so often this can make a huge difference.

A recent case study highlights just how much of a difference we can help in supporting the parents when they need it most: Caroline’s mental ill health had a significant effect on being able to protect her children and keep them safe from domestic violence in the home, resulting in the children being placed in foster care. She was allocated an advocate before the Issues Resolution Hearing (IRH) in summer last year and a home visit was needed to support Caroline in attending the

WLS Charity Walk to raise money for ONSIDE Advocacy IRH remotely. In the lead up to the final hearing Caroline was extremely anxious and even considered not attending court as she had great difficulty leaving her house. Our advocate was able to offer emotional support via telephone and additional home visits whilst liaising with an ONSIDE Mental Health Link worker in order to provide the best support and encouragement.

It was evident a greater level of support would be needed for the final hearing, in addition to her mental health concerns, Caroline’s stress was exasperated by the financial impact of attending the court too. In order to ensure Caroline was in attendance our advocate travelled to and from court with her.

The costs of this was kindly covered

by ONSIDE’s Access Fund so as not to further impact her anxiety levels. It became evident without this extra emotional and financial help, it would have been unlikely that Caroline would have attended the hearing.

A further home visit to support Caroline was arranged for the delivery of the final hearing, which resulted in the outcome that Caroline’s children would remain in long term foster care.

Feeling distraught and struggling to understand why her children were taken from her, her relationships with professionals involved were poor.

Both the advocate and the ONSIDE mental health link worker were able to make a final visit to support Caroline at her home, joined by a PAWS key worker. Our advocate continues to support her at LAC reviews going forward.

Supporting people in our community who may struggle to have a voice and who may face discrimination is key to our core ONSIDE values and work.

Without the help of our amazing advocates, Caroline’s case could have been an even more traumatic experience for her and a strained and difficult process for the professionals involved. As a charitable organisation we are extremely proud to be able to support parents who may face a particularly challenging journey.

Could you help us to keep up with the latest information?

We would really appreciate some regular (quarterly) refresher sessions of legal aspects in relation to PLO and proceedings for our advocates so they can be fully equipped and have up to date knowledge to support parents.

If this is something you or your colleagues could assist with, we would love to hear from you. Please contact our PSA Manager, Sarah Hudson at sarah.hudson@ONSIDEadvocacy.org.uk or call via our Access team on 01905 27525.

The funds raised by WLS will without doubt contribute towards us providing essential advocacy and, when needed, financial assistance in cases similar to Carolines. We are extremely grateful for all fundraising and professional input.

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Merry Quizmas and Happy New Year On 1 December 2021 the Committee kicked off the festive month by holding a Christmas themed quiz at Boleros who put on a tapas style spread for us. There was a great turn out and competition was fierce. Bradley Haynes arrived in masses with three teams entered. Parkinson Wright, Harrison Clark Rickerbys and Greens Solicitors also entered.

Photographed with WLS President Charlotte Perry are Jemma Hughes, David Wilkins and William Ham from our winning team, Greens Solicitors.

Bradley Haynes took home the wooden spoons.

A big thank you to Quiz Master Pat Beeching and to all of those who took part.

Winning Team

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Family Tree Verification – don’t rely on what the family tells you In the UK, the probate genealogy industry is not held in the same respect as it is by our European neighbours in France and Germany, where the verification of estates by professional genealogists when someone has died intestate is considered vital.

her nephew many years earlier and didn’t recognise him as part of her family. His ‘crime’ was to grow a beard to his waist and to apparently exhibit anti-social behaviour. We identified and located him, and half of the estate rightly passed to him.

While the UK industry is unregulated, this need not deter solicitors from working with those who specialize in combing census records and online archives to piece together irrefutable evidence.

Whilst reputation makes an excellent starting point, we always stress that anyone who requires the services of a probate genealogy company should first ensure that they are dealing with a professional company.

Overlooked siblings and children It is best practice for a solicitor to interview their client before engaging a probate research firm, to ensure all relatives are accounted for. Families lose touch, large families forget how many

At Finders International, we follow voluntary codes of conduct and regulatory regimes that can provide reassurance together with multiple ISO certifications and industry awards.

budget or a fixed fee at the expense of the estate may be more appropriate, depending on the circumstances of the case.

Be wary of low initial quotes Budget or fixed fees paid by the general estate diminish the whole estate value, something which any already known next of kin often see as unfair.

If the probate research firm works to a contingency fee and fails to find any further entitled heirs, it usually receives nothing at all for its work, but the report can secure the vital indemnity insurance policy needed to safeguard the administrator.

There are dangers of being ‘hooked’ into using a firm based on a very low initial quote. Cheap does not necessarily mean better. It is often true that you get what you pay for, and this is not an area where it pays to cut corners.

It is vital to check whether the company is a member of a voluntary self-regulatory body such as the IAPPR www.iappr.org, a unique international body representing elite professional firms across the globe. Furthermore, the firm’s list of Credentials and Accreditations should give reassurance.

Insurance – don’t skip this vital protection

Another issue I see in the UK probate research industry is the reliance by the solicitor, administrator or executor on family testimony, without independent verification. Some solicitors accept the word of family members as to who is related to the deceased and by what degree of kinship. This can lead to incorrect estate distribution and huge risk for the firm distributing the Estate.

relatives they have, children are born out of wedlock and, since 1927, adoptive families can legally inherit.

Freedom of choice is imperative to cover a variety of situations. There are four fee models available from most professional probate research firms.

Missing or unknown beneficiary insurance is crucial. Sometimes, administrators seem certain they have identified all next of kin and consider taking out insurance cover against any future claims a waste of money. However, there are an increasing number of claims where no traditional documentation such as birth certificates exists, and DNA evidence is also being used more than ever before.

If there is no formal birth or adoption certificate, it’s more likely that a probate research firm will be unable to find ‘undocumented’ claimants. Insurers demand proper evidence, and they seek evidence from recognised professional firms of probate researchers.

I once carried out research on a £400k intestacy, where the solicitor wanted verification that their client was the sole heir to the estate. The client was an elderly lady who claimed to be her late brother’s sole surviving next of kin.

We find that often Contingency fees are the most popular option. They are seen as fairer in many circumstances-payable only on a successful distribution of an estate, and where the fee is agreed directly with a beneficiary or the executor and expressed as a percentage of the sum they receive. However, an agreed

If you would like to out more about Finders International’s family tree verification service, please visit the website www.findersinternational.co.uk or contact Finders via email: contact@findersinternational.co.uk or telephone:+44 (0) 20 7490 4935/ freephone: 0800 085 8796.

Family testimony – not usually fail safe

However, we discovered she’d disowned

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Contingency fees most popular

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When your SJE gives the “wrong” answer The Single Joint Expert (“SJE”) was developed by Lord Woolf in his Access to Justice, and has featured in the Civil Procedure Rules and the Family Procedure Rules ever since they were launched. The SJE is very popular with the courts, and no wonder. For example, where there is need to value the Chris Makin family business where a clean break is envisaged, in the old days I would frequently see a situation where the valuer for the husband (me, say) valued the business at £nil and the valuer for the wife said £1million. I don’t exaggerate; these were the precise values given in one of my early cases. Which valuer was right? I was! The business collapsed during the proceedings, with no realisable assets. I was right, but I didn’t get paid – a salutary lesson all round.

But the point is that, if the proceedings had continued, the district judge would have had to make a decision. That would have been expensive in court time, and with an uncertain outcome because a DJ is not a business valuer.

The same issues arise with civil cases.

You and your opponent have taken great care to choose an SJE; you’ve put forward three names, your opponent has put forward three different names, you’ve discussed them, perhaps had to call on the judge to make a decision, and now both of you must rely on the opinions of the chosen one.

But what do you do if the joint expert comes up with opinions which you simply can’t accept?

The first step is to ask questions of the expert. They must be put according to the rules. Under CPR (other rules are available!) at Part 35.6 they must be in writing, proportionate, put only once, put within 28 days of service of the expert’s report, and for the purposes of clarification only. This may be helpful, but it won’t amount to a requirement that the expert re-writes his report, or changes his opinion drastically.

So then what?

You could apply to the court for your own party expert under Daniels -v- Walker [2000] 1 WLR 1382 CA. In that leading case, Lord Woolf (who of course was anxious to see that his new CPR code was working correctly) said this: “... where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions... the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert or, if appropriate, to rely on the evidence of another expert. In a substantial case... the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular

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issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.”

So this was a gentle approach, if the reasons for wanting a party expert were “not fanciful”, the court should allow a party expert to go on the record.

But in Bulic -v- Harwoods & Ors [2012] EWHC 3657 (QB) it was not so straightforward. Eady J picked up another phrase from Lord Woolf’s words above, namely “subject to the discretion of the court”. That of course must be right; any expert is permitted to give evidence only with the permission of the court in any circumstance. Eady J said this: “... In referring simply to requiring a ‘good reason’ [Lord Woolf] was clearly recognising the need for flexibility. What is a ‘good reason’ in one case may prove quite inadequate in another. None of these judicial observations, made in the

context of applying broad principles to very specific factual circumstances, should detract from the breadth of the court’s discretion from the general terms in which the guidance was given in the earlier cases.”

In other words, the matter is case specific.

There has been further clarification in the recent case of Hinson -v- Hare Realizations Ltd (2) [2020] EWHC 2386 (QB), which concerned Noise Induced Hearing Loss. The claimant alleged that he had been exposed to high levels of noise in the defendants’ factory, and had not been given adequate hearing protection or training. The SJE produced a report which was not helpful to the claimant.

The claimant’s solicitor, in handling a similar case, came across an expert who considered that the SJE’s report in Hinson was defective. Three days before the hearing, the solicitor applied to the court for a party expert’s report to be admitted and for the trial to be vacated and elevated to the multi-track. Miss Recorder McNeill QC refused the Claimant’s application to vacate the trial and to rely on the new expert’s evidence. The Claimant appealed.

The question for the court was similar to that in Bulic, and the higher court rejected the claimant’s appeal. Martin Spencer J said this: 1. The fact that a party has agreed to a joint report does not prevent it from being allowed facilities to obtain a report from another expert or rely on another expert’s evidence.

2. If a party has obtained a joint expert’s report but, “for reasons which are not fanciful”, wishes to obtain further information before deciding whether to challenge the joint report in part or as a whole, then they should be permitted to obtain that evidence, subject to the wide and factsensitive discretion of the court.

3. What counts as “good reason” to abandon a single joint expert is fact-sensitive; even if a reason qualifies as a “good reason” in one case, it might not count as a “good reason” in another case.

4. The court must have regard to the overall justice to the parties which is a fact-sensitive question. …but he quoted the words of Eady J in Bulic as follows: 1. Where the court is concerned with a relatively “peripheral” issue or evidence of a non-technical nature, the court will be less likely to dispense with a single joint expert.

2. Whether a case is “substantial” is relevant to, but not determinative of, the court’s discretion to justify dispensing with a single joint expert. If a claim is of less than a certain monetary value, this does not necessarily mean that a court will decline to allow a party to engage his own expert evidence where he has lost confidence in a single joint expert, especially where the evidence is of a technical nature and is likely to be determinative on liability.

3. One should not become too focused on the exceptional

nature of an application to dispense with a single joint expert’s evidence; regard should be had to all of the relevant factors.

Martin Spencer J then produced a checklist of matters to be considered, with one factor being no more important than another, as follows: 1. the overriding objective; 2. the interests of the Claimant; 3. the centrality of the single joint expert report to the issues of the case; 4. the technical nature of the single joint expert report; 5. the Claimant having "good reason" for wishing no longer to rely on the joint report; 6. the application was made at a late stage and would, if granted, result in the breaking of a fixture with potential waste of court time and inconvenience to other parties; 7. the case had already been adjourned twice but not for reasons relating to the Claimant’s conduct; 8. the single joint expert was chosen by the Claimant; 9. the Claimant had raised Part 35 questions of the joint expert on two occasions; and 10. if the application were granted, the case would be re-allocated to the multi-track resulting in a significant increase in costs.

There is no easy answer to all of this. The SJE must of course be chosen with care, and must be instructed fully and carefully. After that, it’s hold your breath time, and hope that the SJE comes up with opinions which are not unhelpful to your case. And if you consider that it is essential to have a party expert, make application to the court promptly (not within three days of the hearing as in Hinson!) and prepare very clear and persuasive argument for why the party expert is essential if justice is to be served.

Good luck with that!

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

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How Can Law Firms Reduce Their Carbon Footprint?

By Allie Parsons

Climate Change is the long-term shift in average global weather patterns, and the sixth Assessment Report by the Intergovernmental Panel of Climate Change (IPCC) has found it is certainly a result of human activity.

In this article, we summarise the key findings from the IPCC’s Assessment Report and consider how law firms can play their part in reducing their carbon footprint.

1. We are set to pass 1.5C warming by 2040 The average global temperature has risen by more than 1°C since the 1850s, with the hottest years recorded in 2015, 2016, 2017, 2018, 2019 and 2020. The 1.5°C is the target limit set out in the Paris Agreement in 2015, which aims to strengthen the global response to the threat of climate change by limiting global temperature rise to 2°C above pre-industrial levels, while pursuing efforts to curb it further to an increase of 1.5°C. If we don’t act now on achieving net zero by 2050, it looks as though this target is not achievable.

2. Human activity is driving extreme weather

What is required to prevent further warming?

World leaders met for the UN Climate Change Conference (COP26), which was a pivotal moment for nations to reflect on what we have done so far in reducing our greenhouse gases and what is required to meet the pledge to limit global average temperatures and achieve net-zero by 2050.

What can law firms do to help?

1. Measure and analyse Greenhouse Gas emissions In order to know how to improve in reducing emissions, you will first need to measure what emissions you are emitting. This can be done by using private companies that can help and also provide solutions to reduce your impact as a company.

2. Reduce your energy consumption

There have been significant improvements in the data used to model climate change since the 5th Assessment Report (AR5) was published. As a result, the new climate model simulations, new analyses and methods have led to a greater understanding of human influence on the climate.

Simple things such as turning off the lights in the office in the evening or taking devices off plugs when not in use will make a difference.

Also, reduce the heating or use of air conditioning, encouraging colleagues to dress accordingly. If its hot outside, try to lower the indoor air-conditioned temperature by 2°C.

3. Climate change is affecting all regions

3. Use renewable energy

The IPCC report states that “Climate change is already affecting every inhabited region across the globe with human influence contributing to many observed changes in weather and climate extremes.”

There are many renewable energy companies out there, or green tariffs you can opt for – do your utilities homework.

Models have become more advanced and it is now possible to assess how regions will differ with increase in temperature. It is clear that the Arctic temperatures are increasing faster (potentially 2 times faster than the level of global warming) than other regions, while for some mid-latitude and semi-arid regions, and the South American Monsoon region, they are expected to see the highest increase in temperatures of the hottest days, at about 1.5 to 2 times the rate of global warming.

Reduce the amount of waste produced; law firms typically print on paper and often these records are required to be shredded and disposed of by specialist contractors. This could potentially be reduced by storing information digitally.

4. Irreversible tipping points are getting closer These increases in temperature have, in some instances, made traversable changes such as sea level, which will continue to rise and will not be recoverable for hundreds, even thousands of years’ time.

The surge of forest fires have caused concerns that tipping points are getting closer. The changing climate in parts of the world are causing severe droughts and the loss of forests will result in higher temperatures and a lower humidity, which, in turn, worsens wildfire conditions.

Furthermore, as the intensity and scale of forest fires increases, CO2 which would normally be reabsorbed during forest regrowth are now not able to so. It’s an unfortunate cycle which leads to increased warming.

References:

4. Reduce waste

5. Increase employees use of greener transport during the commute The lockdown has seen that we can work from home and as such is the usual commute still required? And if so, can we do this by using public transport?

6. Support clients with ESG assessment and management ESG is relevant to clients who want to be a step ahead in devising their own ESG programme to demonstrate responsible business conduct.

Law firms are well placed to assist with ESG due diligence processes and offer legal counsel on ESG advancement. We recommend working with data providers that adhere to SASB standards for effective and accurate ESG assessment and risk management.

For more information visit: https://www.landmark.co.uk/legal-conveyancing/esg-management/

https://www.ipcc.ch/report/sixth-assessment-report-working-group-i/ https://youmatter.world/en/actions-companies-climate-change-environment-sustainability/ https://insideclimatenews.org/news/08012020/australia-wildfires-forest-tipping-points-climate-change-impact-wildlife-survival/ https://www.theguardian.com/australia-news/2020/apr/21/summers-bushfires-released-more-carbon-dioxide-than-australia-does-in-a-year https://www.theguardian.com/environment/2020/jul/15/climate-change-made-siberian-heatwave-600-times-more-likely-study https://www.theguardian.com/world/2021/aug/20/rain-falls-peak-greenland-ice-cap-first-time-on-record-climate-crisis https://www.bbc.co.uk/news/science-environment-58130705 https://www.metoffice.gov.uk/weather/climate-change/effects-of-climate-change https://www.gov.uk/government/speeches/the-need-for-action-on-climate-change-is-urgent https://www.worldweatherattribution.org/siberian-heatwave-of-2020-almost-impossible-without-climate-change/

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