Legal News February/March 2016

THE MAGAZINE OF THE CONFEDERATION OF THE SOUTH WALES LAW SOCIETIES

LEGAL

NEWS

FEBRUARY 2016

Cardiff & district

ANNUAL DINNER See page 9 for more information

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LEGAL NEWS

CONTENTS CONFEDERATION OF SOUTH WALES LS

Editorial Board Richard Fisher - Editor Michael Walters - Secretary Johnathan Hine David Dixon

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PRESIDENT’S REPORT

Editorial copy to Richard Fisher Charles Crookes 51 The Parade Cardiff CF24 3AB Tel: 029 2049 1271 Fax: 029 2047 1211 DX 33025 Cardiff 1 E-mail rfisher@ccj-law.co.uk

cardiff & district LS

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president’s letter

Monmouthshire Incorporated LS

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Monmouthshire President’s letter

Designed and Produced by PW Media & Publishing Ltd Tel: 01905 723011 Managing Editor Dawn Pardoe

ANNUAL DINNER

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Book your tickets today!

Graphic Design Paul Blyth Advertising Sales Emma Cox Tel: 01905 727907 Email: emma@pw-media.co.uk

education

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the sra and the Solicitors’ Qualifying Examination

Printed By Stephens & George The articles published in Legal News represent the views of the contributor and are not necessarily the official views of the Confederation of South Wales Law Societies, Cardiff & District Law Society, or of the Editorial Board. The magazine or members of the Editorial Board are in no way liable for such opinions. Whilst every care has been taken to ensure that the contents of this issue are accurate, we cannot be held responsible for any inaccuracies or late changes. No article, advertisement or graphic, in whole or in print, may be reproduced without written permission of the publishers.

UPDATES

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THE SIMON MUMFORD MEMORIAL AWARD

chancery lane

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the latest news from chancery lane

RESERVE YOUR PLACE NOW FOR THIS FREE MEMBERS’ FORUM! Cardiff & District Law Society is proud to invite members to its first Members’ Forum for 2016, which is expected to be very popular.

‘Employment Law Update’ – 1.5 CPD Hours Speaker: Christopher Howells (Civitas Law) Date/Time: Wednesday 24th February 2016 at 6.00pm – Registration from 5.30pm In conjunction with: Civitas Law Venue: Civitas Law, Global Reach, Celtic Gateway, Cardiff Bay, CF11 0SN To book places, please contact: Karen Ling on 0845 0713 007 or e-mail: karen.ling@civitaslaw.com Forums are open to all members of Cardiff & District Law Society, irrespective of their expertise.

PLEASE SUPPORT THEM! IT’S THAT EASY! NOTHING TO PAY! LEGAL NEWS

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FEBRUARY 2016

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CONFEDERATION OF SOUTH WALES LAW SOCIETIES

PRESIDENT’S REPORT - FEBRUARY 2016 I trust you all enjoyed the peaceful, rejuvenating and relaxed Christmas and New Year that that I am sure we all deserved, given the multi-faceted attacks the profession currently faces.

Regrettably, the peace and tranquillity of the recent holidays is, I suspect, a dim and distant memory for most, me included. It was very much back to earth with a bump on 4th January 2016!

Although the weather has changed for the better (I far prefer the cold than the wet), the icy temperature of relations between the profession, the SRA and Central Government still continues. In that area, no thaw appears to be on the horizon.

Presidential duties have resumed in this month and I withheld writing this report until I had attended the “Round Table” event with the Chief Executive of the national Law Society, Catherine Dixon. This was held at the Law Society’s Wales office on 21st January 2016 and attended by representatives of the profession locally. I was pleased to be invited to attend, mainly thanks to the good offices of Clive Thomas, President of Monmouthshire Law Society. Many thanks to you for that Clive!

Whilst I do not suspect that our contributions to the debate and the discussions with Catherine Dixon are likely to be game changers in the larger debate with the likes of the SRA, the Lord Chancellor and the current government, it was both interesting and I believe vital that members of the profession voiced the concerns of all of us at the current multiple attacks the profession faces. It is one of the responsibilities of a local law society to act as a voice for its members. In that regard, the Confederation intends to speak for all its constituent members on such important issues and I believe that this facet of the Confederation, perhaps somewhat lacking in more recent years, needs to come back to the forefront of what we do. I intend to take the initiative on this more in the coming year.

But back to the meeting. It was perhaps inevitable that Catherine was given something of a bumpy ride during the discussions. I say that from the perspective that the majority of the comments were critical rather than congratulatory. I suspect that this was 4

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inevitable. However, the discussion was free-flowing, lively and informed.

Above all it was civil, as becomes a true profession. There appeared to me to be unanimity of agreement that, at least at face value, it was both difficult to see what the national Law Society actually does for the profession at its grassroots level as well as concern that the issues facing the profession were not publicised with a sufficient degree of high profile. Above all, there was clear understanding and concern that the threats facing the profession currently will, eventually, manifest themselves in further restrictions in access to justice and, ultimately, hit the poorest and most vulnerable in the community hardest.

There was clear concern expressed that this should not be allowed to happen and that the legal profession must act to protect those in society least able to defend themselves. In this regard, I was both impressed and proud to be a Solicitor today.

I have written in this column in the past of the “threat” that the legal profession poses to central government. I firmly believe that we are seen as a considerable threat.

We have the ability to understand the intricacies of the so called “reforms” that government comes up with on a regular basis; we can see through the spin and blatant nonsense that is peddled in the name of “consumer protection” and have the ability to communicate the risks that all such proposals raise to the average citizen.

Additionally, we have a knowledge of the court system that allows us to act to prevent ill thought out reforms should that be necessary. The recent history of government initiatives is littered with successful challenges in the courts. Indeed, the recent Criminal Contracting exercise is now mired in legal challenges in more than 75% of the contract procurement areas. Hardly a successful or economic outcome! Thus I maintain LEGAL NEWS

that we are seen as a threat. Is it any wonder, then, that marginalisation of this threat is seen as an imperative?

This week we have been urged to participate in the Competition Regulator’s review of legal services at large. I urge all of you involved in the provision of legal services, in whatever guise that might be, to contribute to this debate. Given that the competition regulator comes at most things from a cost/value for money aspect, we need to make it clear in the consultation that legal services are not just about cost/price. Indeed, client research indicates quite clearly that cost is some way down the list of priorities for the majority of those wishing to access such services. Thus, consumer satisfaction cannot simply be measured by how far cost can be driven down. The peculiar aspects of legal services are an unknown country to anyone other than those whose business it is to sell such services. In that regard I urge you all to remove the veil of mystery that surrounds this area and tell it like it is. Only in this way can we stand a chance of genuinely influencing the debate.

Equally, we need to speak out to persuade the decision makers to look again at issues such as the proposed alterations to Personal Injury, both as regards the small claims limit and the suggested abolition of the ability to sue for “minor soft tissue” injuries in road accident cases. When I first read this proposal I was flummoxed.

How can victim A mount a successful claim for minor soft tissue injury if it happens other than in a road accident, but then cannot simply because he was in a vehicle at the time the injury was sustained? Not only does this circumvent a long established principle of law, it is a theoretical nonsense as well. Either a tort has been committed or it has not. If it has and damages flow from the breach, why should

victim A be prevented from recovering damages? With more consideration the true horror of what is being proposed is revealed. Were this to be allowed to proceed, it represents the thin end of the wedge. Pretty soon thereafter other pressure groups, for example the CBI, might think it wise to put pressure on the government in the same way the Insurance industry has (lets face it, they are the ones behind these PI proposals) and attempt to make it illegal to sue for unfair dismissal, redundancy and such matters. Is that the clinical negligence train I hear hitting the buffers? What a funding solution it would b to outlaw all clinical negligence claims against the NHS! The money saved could then be diverted back to administrators, sorry I mean patient treatment! The potential for this line of attack is truly breath-taking!

Equally, the current nonsense being peddled about high costs of litigation and the need to reduce such costs is wiped out in one stroke by the government, with its other hand, raising court fees through the roof and effectively simply adding back the very burden they are allegedly attempting to mitigate in all this.

We live in difficult times. It is incumbent on us all to stress the true effects that theses proposals will have on the average person in the street, I urge you all to do this at every opportunity.

Finally, a gratuitous plug for the Confederation AGM. 10th February 2016 at 6.00pm at the Parkhouse Club in Cardiff. Amongst the agenda items for discussion is the direction and raison d’etre of the Confederation. I urge you to join us and contribute to both that and the larger ongoing debate in our profession. See you there! n Jonathan Hine JonathanH@jacklyndawson.co.uk

CARDIFF AND DISTRICT LAW SOCIETY

PRESIDENT’S LETTER Little has happened in the 2 months since my last report as Christmas intervened and pre-occupied everyone.

I understand that Children’s Festive Fun at Parc Play on Curran Embankment on Saturday 12 December was a roaring success. I hope everyone who attended had a great time. While you were enjoying yourselves I was suffering at Cardiff City Stadium as I watched Cardiff City surrender a two goal lead to draw with Sheffield Wednesday. I know where I’d prefer to have been. Thanks to Synergy Costs for sponsoring the event.

In December the SRA finally released their consultation on assessing competence. This had been expected in the autumn but it was deferred so the SRA could undertake some pre-consultation scrutiny.

The consultation expires on 4 March.

This society will be responding to it.

If you wish to, you should contact me with your views and I’ll communicate them to the working group which will draft the response. I urge everyone to respond to it.

In a related development, Julie Brannan, the SRA’s director of education and training visited Capital Tower on 14 January to speak about the consultation. I’ve known Julie for several years and have the highest regard for her. She was formerly a partner at Herbert Smith before teaching at, and eventually running, the Oxford Institute of Legal Practice.

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She attracted 40 people to Capital Tower, which is an excellent turnout for a session on education and training and her talk merited the sizeable audience.

Having said all that, I think that the audience distinguished between the quality of the speaker and the quality of the policy she spoke about.

She was asked a good number of testing questions and I didn’t hear anyone say anything positive about the proposals. Gwyn George thought that additional costs would fall upon firms which would be expected to pay for the proposed Solicitors’ Qualifying Examination Part 2 skills assessments. He thinks these will cost more than the current Professional Skills Course. I think he’s absolutely right about that.

Thanks to Lowri Morgan for letting us use Capital Tower for the event and to Rhys Jones for all he did to make the evening a success.

As Christmas fades and the new year ages, it is appropriate to think of renewal. Global warming is causing buds to grow and open and spring will soon be here. Your subscription to this society probably expired with the old year and I hope all of you will renew your membership of this society this year. Perhaps you will consider becoming one of our Gold Sponsors?

I am delighted that, this year, Legal LEGAL NEWS

Network Wales, Emma Waddingham Consulting and Spindogs have become Gold Sponsors and Yolk Recruitment are renewing their Gold Sponsorship for the third year. We are very grateful to all of them for their support.

If you want to see a list of the tangible membership benefits which possession of the Society’s platinum membership card can unlock for you, please look up the Membership Benefits page on the Cardiff and District law society website. Did you know that if you chose wisely and carefully you could take your paramour out for a meal at an excellent restaurant, party the evening away at an exclusive nightclub, spend the night at a luxurious hotel, work off the excessive calories you’ve both ingested in a suitably energetic gym the next morning and take the taxi home and each item of expenditure would be discounted because you are a loyal and discerning member of this society? After a few Fridays and Saturdays spent in this hedonistic fashion your subscription will soon pay for itself.

This year’s annual dinner takes place on Friday 22 April at City Hall, at the usual time, 7.00 for 7.30. This is the event which worries presidents more than any other. All of us would like lots of people to come to the dinner,

all of us want everyone to enjoy themselves, all of us want to attract a good guest speaker and none of us want to give our speech. I am no exception.

I am delighted to announce that Sir Keir Starmer QC MP has accepted my invitation to speak at the dinner.

Sir Keir was the Director of Public Prosecutions from 2008 - 2013 and was elected to Parliament as the member for Holborn and St Pancras in May 2015. Before becoming DPP he practised at Doughty Street chambers, where he is still a tenant and wrote a number of books including European Human Rights Law (1999). He is a lawyer of national and international prominence and significance and it is a great honour that he is attending our dinner this year. I hope you’ll come and listen to him.

One duty at the dinner which I will enjoy rather more than giving the speech will be presenting the Simon Mumford Memorial Award. This will be the second time the award has been given. It is given to a lawyer who works or lives (or has done either) within the Law Society’s South Wales constituency area in recognition of his or her contribution to the law and the legal profession. Last year’s worthy winner was Lisa Morgan of Hugh James.

EDUCATION If there is anyone you wish to nominate, please send your nomination to me at DixonD@cardiff. ac.uk. Please let me have your nomination by Monday 29 February 2016.

I will finish by urging those of you who are interested to become involved in both the local law society and the Law Society of England and Wales. This is a critical moment in the history of the solicitors’ profession. The uncoupling of regulation from representation is a process and not an event and the government has signalled the next chapter of that process in its review of legal services regulation. This will also involve encouragement of Tescolaw as the government seeks to do to legal services providers what its predecessor did to opticians in the 1980s. The Legal Services Board’s enthusiasm for increasing the number of qualified lawyers in the facile belief that this will drive down the cost of legal services is another concern as the relatively poor quality of some of them will damage the reputation of the entire sector.

The Law Society and local law societies can help the profession by speaking out on its behalf. In order to speak with confidence, it is important to know and understand the issues.

To know the issues and what the Law Society can do for the profession, it is important to become familiar with it. The best way to learn about the Law Society is to join one of its law reform committees. These are often referred within Chancery Lane as its jewels in the crown. At the end of my Chancery Lane News article I refer to the help which the Law Society gives to the government by contributing technical knowledge and expertise when legislation is being developed.

That technical knowledge is given by the law reform committees. They also draft the practice notes for the Law Society.

There are 21 law reform committees.

Some have a reserved place for someone from Wales. Some will be recruiting new members this spring, though some will not. But if you are interested in the work of any of these committees and would like to meet expert practitioners from different

parts of the country and contribute to responses to consultations, consider provisions in bills and draft practice notes to reflect best practice, apply for any vacancy which attracts you. If you want advice on how to go about applying, contact me and I will be as helpful as I can. It would be good to have more committee members from Wales, especially members of committees like the Civil Justice committee, which has a ring-fenced place for Wales which it has not filled.

Any vacancies there are will be advertised in the Gazette. I expect them be advertised in February or March so that the vacancies can be filled by the summer. The law reform committees are: Access to Justice; Children Law (Subcommittee); Civil Justice; Company Law; Conveyancing and Land Law; Criminal Law; Employment Law; European Union; Family Law; Housing Law; Human Rights; Immigration Law, Intellectual Property; International Issues; Mental Health and Disability; Money Laundering Task Force; Planning and Environmental Law; Tax Law, Technology Law Reference Group; Wales and Wills and Equity.

St John’s College: The Best A Level Record in Wales over 16 Years

St John’s College is once more delighted to sustain its record over 16 years as the best performing school in Wales at A level and has also frequently been ranked top school in Wales in The Sunday Times ‘Parent Power’ based on combined GCSE and A Level performance.

A Level Results 2015: • A* / A - 78% • A* / A / B - 96.8% • Pass Rate - 100% Its students, including a significant number with 4 A* / A grades, are proceeding to top Russell Group Universities, including Oxbridge and Medical and Dental schools. The college’s most recent Estyn inspection

report graded the school “Excellent”, including the enviable and seldom awarded “Excellent” grade for quality of teaching, stating: “The quality of teaching is an exceptional feature of the school’s work.”

The strong, close-knit family atmosphere ensures that pupils receive the care necessary to develop their full potential. The girls and boys achieve beyond their predicted grades. The school is also proud of its outstanding musical reputation – a remarkable number of its most successful maths and science students proceed to medical school and the most competitive university courses, and are also diploma standard musicians. n

I hope that any firm in which someone works who wishes to apply to join a Law Society committee would support and encourage them. Although the work involves a time commitment, I have gained as much from the work I have done as I have given to it. Your firm will benefit from your increased confidence and expertise, too.

Once your interest in the Law Society has been whetted by committee work, you may wish to stand for election to the council. Similarly, if you join the council of the local law society and enjoy it, you may wish to stand for election to the Law Society council when that vacancy arises.

There is no vacancy at the moment so that is a discussion for another day but it would be good if the next election (as the last one was) was contested by a couple of outstanding candidates. n David Dixon DixonD@cardiff.ac.uk @saldixie LEGAL NEWS

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Monmouthshire Incorporated Law Society

monmouthshire President’s letter Happy New Year all! Sadly the New Year has not seen any let up on the challenges to the profession.

The Government continue to attack access to justice and the criminal legal aid situation continues to be a farce. Their plan to raise the small claims limit for personal injury cases will, in my view, only succeed creating a huge inequality of arms between the public and insurance companies.

They also seem intent on eradicating whiplash claims, disregarding the right enshrined in law for injured people to claim compensation. They have no hard evidence to support their fraud figures, or claims of a “compensation culture” or that whiplash is any way out of control when compared with other countries, particularly when you consider that the UK has 79% more vehicles per kilometre than any other EU country and the most congested roads. There is also nothing to suggest that the insurers will keep their promise of reducing motorists’ premiums. They just seem intent on railroading through these changes, based mainly on Daily Mail rhetoric. We must take every opportunity to counter their arguments so that the public understand that they will ultimately be the losers in this. We need to make access to affordable justice as much of a vote winner as lowering the cost of justice and reducing motor insurance premiums.

Another potential area of change is in the way solicitors qualify. Last month I attended a talk given by Julie Brannan of the SRA at Capital Towers.

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She argued the case for bringing in the Solicitors Qualifying Examination.

I can see the sense in a common examination allowing us to have a consistent and fair way of testing the competence of new entrants into the profession from all of the different pathways. My concern is that the standard must not “dumbed down” as this will create issues in the protection of the public and importantly the value of the brand of solicitor in England and Wales and how it is perceived abroad. We intend responding to the current SRA consultation, however in my view they should have incorporated the period of recognised training and also the qualifications required to sit the new exam into the consultation, rather than adopt a piecemeal approach.

We recently held a very successful Cyber Security Course at the Parkway Hotel in Cwmbran. It attracted very good numbers as it is such an important issue currently, with law firms being under attack from cyber fraudsters. It came out of the course that a very good option for law firms is to consider obtaining the Government backed Cyber Essential Scheme Accreditation, which provides good basic cyber security practice that will enable us to be better protected from the most common cyber threats.

Thank you to our excellent speakers at the event - Wayne Williams of CPM21, Chris Fawcett of Lloyds Bank and Damon Rands of Wolfberry. Our next course will be a Health and Safety training later in the month and we thereafter hope to arrange a Partners Networking Forum.

I also attended the joint roundtable meeting in Cardiff with Catherine Dixon, the CEO of the Law Society, in January, involving both Monmouthshire and Cardiff and District Law Societies. Thank LEGAL NEWS

you very much to Law Society Wales for arranging the event. Catherine outlined the Law Society’s new strategy and the business plan behind it to implement it. Their aims are to represent, promote and support solicitors - the test will now be how they put this into practice to deal with all of the changes and challenges facing to the profession.

I will be attending a meeting with other ASWLS (The Association of South Western Law Societies of which Monmouthshire is a constituent member) representatives in March with Catherine and hopefully the President, Vice President and Junior Vice President of the Law Society to raise the concerns that we have as

a group of local law societies and to establish how we, and the profession as a whole, can effectively collaborate with Law Society in the future. I will report back on the outcome.

It is also that time of year when we ask you to renew your membership.

So please take advantage of our new corporate rates and new category of “Associate Member”. Contact me for more details. I will have news of our Summer Ball in the next edition. n Clive Thomas President President of Monmouthshire Incorporated Law Society clive.thomas@watkinsandgunn.co.uk

DATE FOR YOUR DIARY By popular demand The Confederation is returning to Llandaff Rowing Club Bridge Road, Cardiff CF5 2PT for

PIMMS BY THE RIVER 15th July 2016 at 7:30pm

For further information contact Michael Walters on michaelwalters1@hotmail.co.uk

Phoenix Legal Services LEGAL NEWS

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FEBRUARY 2015

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What’s the risk?

A CON29DW search indicated that the property was connected to the public sewer. In reality, there was no sewer connection and sewage drained into an old septic tank. This was only discovered when the tank backed up causing nasty leakage into the homeowner’s garden!

Resolving the issue and connection to the public sewer would have cost the owner around £10,000.

Fortunately, the underwritten guarantee on the CON29DW meant that Geodesys arranged and paid for connection to the public sewer, as well as removal of the old tank and waste, and re-landscaping of the garden.

If you are not ordering a CON29DW on behalf of your clients, we strongly advise you to check the level of liability provided by your search provider and how their insurance works regarding unanswered questions in the search.

Geodesys offers the CON29DW throughout England and Wales, turn around over 95% of CON29DW searches within three days and offer in-house training / CPD on drainage and water.

For more information contact Matthew Bowles, Geodesys Client Account Executive on 07764 986563 or matthew.bowles@geodesys.com and start getting the full picture!

www.geodesys.com/con29dw

FEATURE

The proposed SQE… becoming and remaining a Solicitor!

If a solicitor wishes to remain on the Roll and hold a Practising Certificate then from 1st November 2016 they will have to demonstrate that they have the skills and knowledge required by the SRA Competence Statement. CPD will pass into history on 31st October 2016.

Someone planning to qualify as a solicitor from 2018 would need to pass the Solicitors Qualifying Exam (SQE). In December the SRA launched a consultation which favours a centrally assessed SQE for all solicitors. This would apply to those who have a degree, those who have an apprenticeship and to overseas lawyers, so that ultimately there would be a common gateway to entry whatever the learning pathway chosen.

that all newly qualified solicitors will be able to demonstrate that level of knowledge and skills. It might make challenging reading for those of us who have been qualified for a number of years.

February 2016 should see the publication by JAG of the QASA timetable. QASA is effectively an assessment of the Competence of Criminal Advocates.

The SQE will be in two parts.

PART ONE “Functioning Legal Knowledge” which will deal with how to solve clients’ problems and unflagged ethical questions. This part would assess whether the candidate had sufficient knowledge to practice effectively. Part 1 would have to be passed before attempting Part 2.

Part TWO “Practical Legal Skills” would cover the following topics: Interviewing & Advising, Advocacy/Oral Presentation, Negotiation, Writing, Drafting and Legal Research. The SQE will be designed to assess whether the candidate can demonstrate that they have the competence set out in the Competence Statement. The deadline to respond to the SRA’s consultation is the 4th March 2016.

What is evident is that the SRA intend the Competence Statement to be central to the admission and ongoing learning of a solicitor.

There are obligations on the firm and the individual to ensure that an appropriate learning and development plan is in place which is relevant to the role profile. The role profile (job description) should 12

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therefore perhaps not be a generic one for a level of employee but tailored to their role. The key question is (and would be at a Solicitors Disciplinary Hearing): • Was the individual competent to perform the role to which they were appointed?

• This question would, in turn, lead to an examination of the learning and developing needs assessment recorded by the individual and the firm e.g. at an appraisal or during induction.

There are three elements to the SRA Competence Statement: 1. Competence Statement itself 2. Statement of Legal Knowledge (as at Qualification) 3. Threshold Standard (as at Qualification) These three documents are essential reading for all solicitors and Training Partners/Managers.

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The COLP will need to note that the Competence Statement (and hence these three documents) now form part of Mandatory Principle 5 of the SRA Code of Conduct. It will not be long therefore before the absence of adequate training will become a “material breach” and reportable to the SRA. Consideration should be given soon as to whether the existing appraisal and file review procedures are still fit for purpose i.e.

• Will they measure the competence of staff?

• Will they identify learning and development needs?

• Will the COLP be alerted if learning and development plans for individuals are not implemented?

It should be noted that the Statement of Legal Knowledge and the Threshold Standard are the standard expected at admission. The expectation is

There is no doubt that Competence assessment will be a key issue for Legal Practices in 2016 and beyond.

Developing the tools to carry out these assessments will be critical. People Management systems will need substantial review. Firms will need to start planning for this significant change now as 1st November will soon arrive.

16 hours per annum CPD will no longer be sufficient and remember that all your staff (not just your solicitors and trainee solicitors) will need to be competent e.g. the COFA. At CPM21 we have been developing the forms and precedents to enable our client firms to be ready for the SRA’s “Training for Tomorrow”. As our brand name suggests we will also be delivering training and development fit for the 21st century lawyer and manager. n Wayne Williams LLB MBA Principal Adviser cpm21

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CHANCERY LANE

A sea change for the conveyancing sector This year we could see the most significant change in generations for the conveyancing sector.

Maud Rousseau, Group Marketing and Communications Director at SearchFlow, explains.

With the advancement of agile technology and big data analytics, search companies are seizing upon the opportunities to drive through major changes. Data and technology providers are working together to create a one-stop-shop to not only streamline the process but help improve risk management.

Registry will be closely monitored.

And in advance of the review of Legal Services Act, which is scheduled to be reviewed during this parliament, the Government has announced its consultation on alternative business models entering into the legal sector.

The Government claims that it wants to ensure that innovative businesses are able to enter the market, providing greater choice for consumers.

Data providers are becoming increasingly more sophisticated in their mapping and identification of areas of risk, reducing any likelihood that potential problems will be overlooked. With data held in private cloud based systems, search providers are now integrating data from multiple sources to deliver a sophisticated risk profiling service to automatically notify the user if there is a potential area of risk which requires further attention.

At SearchFlow, we have already launched new products that will enable efficiencies and are very excited about our schedule to bring further more products to market this year. For example, our recently launched Personal Search Report with unique data insight and risk analysis will aid compliance and save time spent on due diligence. With inbuilt quality assurance checks it ensures the personal searches are the most accurate and sets a new standard in local authority searching.

We have also been working with our group partner, Landmark Information Group to launch the environmental report, Risk View Residential. The report analyses four key environmental factors in one document ensuring a thorough due diligence is carried out from the outset. It also includes a summary 14

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interpretation to cut conveyancers’ time spent reviewing the information, a comprehensive risk assessment and an innovative digital viewing platform for homebuyers.

In addition, the trend for transparency within the conveyancing sector will continue to drive the emergence of new offerings from the searches industry.

Conveyancers will be provided with more services and products that are tailored for the homebuyers. These products will enable conveyancers to provide their customers with an improved service and enhanced communication and reduce their time spent updating clients.

Looking at changes within the wider property market, the emergence of online estate agents has been debated for years. To what extent will they replace the high street estate

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LEGAL NEWS

agents? Will we see a complete transition towards digitalisation for the house buying process? With Purplebricks making headlines last year, when it was listed on the alternative investment market with a valuation of around £240 million, the impact of online estate agents is set to be a major topic of debate this year. Will sellers finally get behind this industry? There is a growing sense of anticipation that this is the year for a seismic change. The industry needs to be prepared to adapt quickly if online estate agents achieve their ambition of being ‘highly disruptive in the world of estate agency’.

In addition, this year there are a number of planned consultations that could have a very significant impact on the conveyancing sector.

The Government’s consultation on the privatisation of the Land

The Solicitors Regulation Authority (SRA) is responding in kind and has announced they will be reviewing their regulatory model, whereby they plan to give legal firms greater freedom to run their businesses as they need to.

This follows their decision to scrap formal CPD which will come into force in November. They claim it will provide conveyancers with greater flexibility, reflecting their ethos to focus on ‘competence rather than compliance with an arbitrary requirement’. Paul Philip, CEO of SRA, noted that the legal services market is developing at an unprecedented rate and the expected review of the Legal Services Act may bring further changes. The industry certainly can’t afford to play catch up.

For years many commentators have called for the industry to be overhauled and the introduction of electronic processes to be integrated more widely. There is a sea change underway and we are in the midst of this transition. Conveyancers are a crucial part of the homebuying process and they will have to adapt to the changing sector; to fully embrace the digitalisation of the industry by utilising data and technology to create efficiencies, improve risk protection and customer satisfaction to enable them to compete. n

EDUCATION

EDUCATION, EDUCATION, EDUCATION On 7 December the SRA released its consultation on Assessing Competence. It is about assessing the competence of people who are about to qualify as solicitors. The assessment model which the SRA would like to implement is a new centrally set examination, called the Solicitors’ Qualifying Examination, or SQE. The SQE is a suite of assessments to be taken in two parts. Part 1 consists of computer-based objective testing of “functioning legal knowledge” in the 12 subjects listed in the SRA’s Competence Statement: ethics, professional conduct and regulation; wills and administration of estates; business law and practice (including taxation); property law; tort; criminal law and evidence; criminal litigation; civil litigation; contract law; trusts and equitable wrongs; constitutional law, EU law and human rights; and the legal system of England and Wales. Part 2 cannot be taken until the student has passed all the Part 1 assessments. Part 2 consists of 2 assessments in each of the 6 practical legal skills of interviewing and advising; advocacy and oral presentation; negotiation; writing; drafting; and legal research. The Part 2 assessments must be taken within 3 of 5 specified subject areas.

Every assessment in parts 1 and 2 is modularised, so each assessment can be taken separately. There is no limit on the number of attempts a candidate can take to pass any assessment.

Everyone who wants to become a solicitor will be required to pass the SQE. The SRA proposes that noone should be exempt from sitting any part of the SQE. University graduates who have passed degree level examinations in the functioning legal knowledge subjects would have to pass the SQE assessments too. So would qualified lawyers, such as chartered legal executives, overseas lawyers and barristers who wish to cross-qualify, as well as legal apprentices.

However, there will be no prescribed route to qualification. In the spirit of outcomes-focused regulation, 16

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all pathways to qualification will have equal value. There will be no requirement for a university degree or a LPC. Students could still take these courses but those who wanted to avoid the tuition charges could qualify too. The SRA states that the SQE will only add to the cost of qualifying if students continue to take the LPC. They believe that more excellent people from disadvantaged backgrounds will qualify, raising the standard of legal work and thriving within an increasingly diverse profession.

If that sounds too good to be true, that’s because it is. Like many optimistic and radical solutions to non-existent problems, it takes no account of human nature and is misconceived. Although the LETR found that the current system of legal education and training is fundamentally sound, the SRA disagrees. It is concerned about the quality of legal services and the consistency of rigour and marking on the QLD and LPC, it wishes to widen access to the profession and it is concerned by the cost of qualifying.

The SQE does not resolve these issues.

In relation to the quality of legal services, the SRA notes that in each of the last 4 years, 10% of firms paid a negligence claim. But there is no evidence that the firms had been negligent or, even if they were, that a newly qualified solicitor had been negligent. The SRA also relies on the fact that the Compensation Fund paid £23.8 million to clients in 2014. But that is not evidence of poor quality work. The Compensation Fund compensates clients who have suffered loss from the criminal acts of solicitors; insurance covers the incompetent. There is no evidence

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that the current system produces incompetent newly-qualified solicitors and criminals.

With regard to the consistency of marking, it would be disturbing if there was no variance in the pass rates, %age of first class or 2:1 degrees or LPC diplomas with distinction of commendation awarded by universities. Some universities attract better students than others; similarly, some universities run bespoke LPCs which prepare students for working in the large commercial firms which are paying for their courses, while other universities’ LPC students are without a training contract and may have lower classes of degree. One would expect universities to have differing results profiles so this is no cause for alarm. The SRA has no evidence of any other cause of inconsistency in results.

As far as the suitability of centralised assessments which rely on computer-based multiple-choice or true/false questions is concerned, these types of question are difficult to set, require a lot of time to write and are therefore costly to produce.

Second, since the questions must have a definite correct answer, they must be relatively uncontroversial.

But in practice there are not always definite right and wrong answers so these questions are likely to be narrow in scope and unrealistic.

Thirdly, most universities, fearful of the league tables which the SRA is contemplating, will teach to the assessment instead of teaching to prepare students for practice which is what the LPC does. Students’ learning will suffer.

Although there is no requirement for a solicitor to have a university

degree, almost everyone who has qualified since 1980 has one.

Increasingly other occupations such as nurses and social workers require one. There is even talk of degrees for policemen! It is odd that the SRA wishes to remove a requirement for tertiary education (ie the LPC) for solicitors when the trend is for other occupations to insist on one.

One also fears for the profession’s international reputation. How can one equate the rigour of qualifying as a solicitor with qualifying as an American lawyer when the only academic requirement for solicitors is that they have an unlimited number of chances to pass 12 multiple-choice question-based knowledge tests and 12 skills tests while the American is required to have an undergraduate degree and a law degree?

There is a structure to the process of qualifying as a solicitor. The qualifying law degree (or degree plus GDL) followed by LPC and PRT (period of recognised training) is a simple clear route. Aspiring solicitors know what they must do and the order in which to do it. Removing this structure and replacing it with the chaos of multiple pathways, leaving it to the student to decide which route to take subject to the proviso that s/he should pass SQE Part 1 assessments before attempting SQE Part 2 is confusing and irresponsible. The SRA says that once the SQE is established the market will correct itself and students will be able to make the best choice as to how to qualify.

But everyone knows what happens when the market corrects itself.

There are a lot of lost jobs, ruined lives and a lot of money is wasted.

Shouldn’t good regulation prevent these outcomes?

updates The SQE is an additional layer of assessment for students. The rationale for denying exemptions from any Part 1 assessments is that granting exemptions would limit the SRA’s ability to ensure comparable standards between different pathways. But that’s a dubious benefit and it’s awfully wasteful, inefficient and mean. Why should students and qualified lawyers who have passed an assessment in contract law be required to sit another? Shouldn’t they be given credit for what they’ve done? If the SRA wants to inflict unnecessary assessments on students so it can gather better statistics on entry into the profession, its priorities are seriously wrong.

This leads me to cost. The SQE has not been costed by the SRA but it won’t be cheap. The SQE is modelled on the QLTS, the test for overseas lawyers. The fee for the QLTS assessment is around £5,000.

The SQE has more assessments than the QLTS so it will be more expensive. A number of institutions have created courses to help people to pass the QLTS. These cost a few thousand more. The chair of the Law Society’s education and training committee says only an idiot would take the SQE assessments without taking a preparatory course. So this is a further cost. Since such courses are not validated by the SRA, as the LPC is, they and the providers will be unregulated. How desirable is that?

Incidentally, no-one interviewed by the Gazette for its article on SQE think it will be cheaper than the LPC and PSC. Who will pay for it? It is likely that students will have to pay for the Part 1 assessments as they can take them contemporaneously with their degree exams (although it seems that Part 1 assessments will be pitched at a higher level). After graduating, students can start their PRT without taking a LPC to cut cost. Assuming they have passed Part 1 they can take the Part 2 skills assessments during the PRT. But this will pose problems for firms. First, Part 2 is intrusive: there are 12 skills assessments plus the preparatory courses to accommodate within the

PRT. Second, who will have to pay for Part 2? The skills assessments on the QLTS are much more expensive than the computer-based knowledge tests and substantially more expensive than the PSC which firms currently pay for. If the SRA is concerned about widening access to the profession for disadvantaged people I can’t see them expecting students to pay for the Part 2 assessments. But would firms pay?

Would they hire trainees who had not passed their Part 2 assessments?

The anecdotal evidence I have heard from practitioners is that paralegals who have taken the LPC are more useful than those who haven’t. This coincides with the opinion of most LPC teachers that students are much better at applying knowledge to given sets of facts at the end of the course than they were at the beginning. It is fair to surmise that LPC graduates are more useful than people of equivalent ability who haven’t taken the course. But if students choose to cut costs by boycotting the LPC they will be less useful to the firm when they start their PRT than current new trainees. It will take more time before they become useful to their firms. Will the firms be prepared to undertake the necessary additional training for trainees and pay for the Part 2 assessments? No. They’ll hire qualified staff who have passed the SQE. Fewer trainees will be hired if this new scheme is implemented.

If fewer trainees are hired, fewer will qualify as solicitors. Since there is no evidence that the current education and training system is responsible for depriving people from disadvantaged backgrounds from qualifying and the SQE will reduce the numbers who qualify, the SQE will deprive more people from disadvantaged backgrounds from qualifying. Further, the SQE will not improve the quality of legal services or improve the consistency of rigour and marking at QLD and LPC level and it will cost more than the current system. I urge you to read the consultation and respond to it. The deadline for responses is 4 March. n David Dixon

THE CONFEDERATION OF SOUTH WALES LAW SOCIETIES AGM NOTICE NOTICE IS HEREBY GIVEN that the Annual General Meeting of the Confederation of South Wales Law Societies will be held on Wednesday, 10th February 2016 at the Parkhouse Restaurant, Park Place, Cardiff The items to be considered will include: • Chairman’s report: • Appointment of Officers for 2016; • The accounts for the year ended 31st December 2015

• Appointment of Constituent Society representatives and other related items, which may be brought before the meeting.

• Special Resolution: The Future of the Confederation? What should be its role and purpose?

All members are invited to attend the meeting. n Michael Walters, Secretary

A SPECIAL VISIT FROM SANTA AT ‘CHILDREN’S FESTIVE FUN’ EVENT Santa paid a special visit to the ‘Children’s Festive Fun’ event, organised by Cardiff & District Law Society on 12th December 2015.

The free event – held at Parc Play - was a great success, with sandwiches, drinks and treats for the children. Every child received a present from Santa.

Synergy Costs kindly sponsored the event again this year and donated a Christmas hamper for a free prize draw. n

THE SIMON MUMFORD MEMORIAL AWARD Nominations are invited for the Simon Mumford Memorial Award which will be presented at Cardiff and District Law Society’s Annual Dinner at Cardiff City Hall on 22nd April 2016.

The Award is awarded annually to a Lawyer who works or resides (or has done) within the Law Society’s South Wales Constituency area in recognition of his or her contribution to the law and the legal profession.

We encourage you to nominate persons for contributions at all levels and of any nature to reflect the variety LEGAL NEWS

of ways in which Simon applied his endeavours to support and promote the law, the legal profession, his local Law Society and those who served them.

Nominations should be sent to the President, David Dixon, email dixond@ cardiff.ac.uk to be received by 29th February 2016.

The Society is also delighted to announce that Simon’s uncle and godfather, Owain Howell, has generously agreed to sponsor the Award and our thanks go to him for this very kind gesture. n WWW.CARDIFFLAW.ORG

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CHANCERY LANE NEWS I’m pleased to start this article with some good news for a change. Carolyn Kirby, the Law Society council member for Mid and West Wales, received an OBE in the New Year’s Honours list. Carolyn, who is an alumnus of Cardiff Law School, has served on the council since 1999 and was president in 2002 - 2003. Her honour is richly deserved and long overdue. Congratulations, Carolyn.

What I remember most about the December council meeting, which took place 7 weeks ago, is the debate on the demise of the Veyo project. On 3 December, days after the last issue of Legal News went to press, it was announced that there would be no further investment in the development of the Veyo online conveyancing portal.

The Law Society and its partner, Mastek, had created a business called Legal Practice Technologies to create a secure online environment (ie Veyo) in which conveyancers could conduct their work. The justification for Veyo was that a conveyancing portal of this sort would maintain the presence of high street solicitors’ practices in the conveyancing market. This was a laudable objective.

Council voted to invest in Legal Practice Technologies in February 2014. The plan was to launch Veyo in the Spring of 2015. That didn’t happen. New providers committed to bring free products to market within case management software to deliver the innovative features which Veyo was supposed to add to e-conveyancing.

Veyo still did not appear. Other case management providers developed products such as Free 2 Convey, (in contrast to the standard £20 charge per transaction proposed for Veyo) and, with Veyo still months away from its launch, the board of Legal Practice Technologies concluded that the market for Veyo had changed radically in the preceding 18 months and Veyo was no longer viable.

As the Law Society was a partner in the venture which has now collapsed, it has lost the investment it made in the project. It is easy to say with hindsight that the project should have been terminated earlier, and some have said so. The council debate on this issue was confidential so I cannot 18

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divulge what was said but you will not be surprised to learn that it was robust and memorable. The Law Society has commissioned a company called O C & C to conduct an independent review of this ill-fated project and to identify any lessons to be learned for any future commercial ideas which the Law Society may pursue in future.

Although some might think that this lessons learned exercise may simply be throwing good money after bad (a view with which I have some sympathy), the fact is that the Law Society may have to pursue commercial activities in future and needs to acquire some commercial aptitude. Looking back, the Law Society was naïve about Veyo. It announced the benefits of the product months before it was due to launch, giving competitors the opportunity to add these features to their products. It also continued to promote Veyo when it had no idea when Veyo would be ready for the market. It is possible that O C & C will identify other instances of Law Society’s gullibility or misjudgements concerning Veyo. But the Law Society’s future may require it to become a more commercial organisation.

In November, the Treasury announced that the government is to consult on making regulators independent of representative bodies as part of moves to boost competition in legal services.

Ministers also want to make it easier for businesses such as supermarkets and estate agents to offer legal services such as conveyancing, probate and litigation. This is a recognition by the government that the ABS revolution has not delivered Tescolaw, an unhappy outcome which, sadly, they appear to desire.

This isn’t an easy consultation for the Law Society - or for the regulators,

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for that matter. The Law Society is an approved regulator as defined by the Legal Services Act 2007; the Solicitors’ Regulation Authority (SRA) is not. The Legal Services Board (LSB) has a statutory duty, which is imposed by Legal Services Act 2007 s 4, to assist in the maintenance and development of standards in relation to the regulation by approved regulators of persons authorised by them to carry out reserved legal activities. In discharging this statutory duty the LSB has striven to separate the regulatory function of the Law Society (ie the SRA) from the representative body. The result is that solicitors have 3 regulators: the Law Society (the approved regulator), the SRA (the de facto regulator) and the LSB (the oversight regulator).

As if that is not confusing enough, all 3 must be paid for. The LSB imposes an annual levy on the approved regulators. The amount of levy payable by each regulator is proportionate to the size of its regulated community.

The Law Society pays about £16.5 million in levies to the LSB, LeO and to pay for the SDT annually. Both the Law Society and the SRA are paid from the practice certificate (PC) fee, after due account is taken of their other income. In 2015/16, the Law Society is receiving income of £35.2 million from the PC fee and the SRA will receive £54.2 million. The Law Society’s commercial income of £15.2 million is less than half of its annual income from PC fees.

So the cost of regulation is immense.

It is not desirable that there are so many regulators of legal services.

I have only listed the regulators for solicitors - I have not listed the other 8 approved regulators and there are another 4 de facto regulators (such as the Bar Standards Board, CILEx

Regulation, Intellectual Property Regulation Board and Costs Lawyer Standards Board. There are also another 2 approved regulators for probate activities, although they do not currently authorise anyone to do this work. The regulating community is too crowded and is responsible for a more complicated regulatory maze than the one Sir David Clementi mentioned in his review more than 10 years ago.

One consequence of making the SRA more independent of the Law Society may be the loss of some income which the Law Society derives from Legal Services Act 2007 s 51. This is income which the Law Society is able to raise through PC fees to pay for its public interest work. This includes its work on improving standards through practice notes and accreditation schemes, its support for the UK legal sector abroad by providing advice and lobbying on practice rights overseas, the help it gives the government and others by contributing technical knowledge and expertise when legislation is being developed and its work to promote pro bono work and human rights and fundamental freedoms. It is important that this source of income for the Law Society is not lost. If it is lost, the Law Society will have to increase its income from commercial enterprises very quickly.

In tandem with this consultation is the review of legal services by the Competition and Markets Authority which was announced earlier in January. The Law Society has said that this review gives the profession a chance to differentiate itself from non-regulated providers and increase consumer confidence. This is your challenge. I hope you take it. n David Dixon Twitter: @saldixie