Legal News FEBRUARY 2017

THE MAGAZINE OF THE CONFEDERATION OF THE SOUTH WALES LAW SOCIETIES

LEGAL

NEWS

FEBRUARY 2017

CARDIFF & DITRICT ANNUAL DINNER 12th may 2017 - see page 14

COVER IMAGE: The Law School, Ty Crawshay, University of South Wales

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

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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

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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.

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Thursday 30th March 2017 - 5.30pm to 7.00pm Registration/Tea/Coffee: From 5.00pm Venue: The Law Society in Wales Office, Fifth Floor, Capital Tower, Greyfriars Road, Cardiff, CF10 3AG To book, visit http://bit.ly/CDLSEvents or view our Events page on www.cardifflaw.org Please book early as places are limited!

CONFEDERATION OF SOUTH WALES LAW SOCIETIES

PRESIDENT’S REPORT - FEBRUARY 2017 Welcome all to 2017! I trust you all enjoyed a peaceful and relaxed Christmas and New Year break. I certainly did. My only regret – it was all over too quickly as usual! of this. Such a rare treat in the run up to Christmas, this really set the tone of the celebrations for me this year. If you are not a regular attender at this event but are interested in Christmas music, I recommend it to you. Details can be obtained from the Cathedral website.

I am a traditionalist at heart when it comes to Christmas. The commercialism frankly annoys me but the music and celebrations do not. The Festival of Nine Lessons and Carols on radio 4 on Christmas Eve is an annual fixture whilst I am preparing the vegetables for the following day and has been for over 30 years.

I was also fortunate to get to the Llandaff Cathedral carol service last year again. For anyone who enjoys Christmas music and carols, this is an event not to be missed. Presented by the Llandaff Cathedral Coral Society, the standard of the music is excellent.

This year we were fortunate that the children of Whitchurch Primary School were also in attendance.

Now my experience of school carol services is mixed. I can recollect those from when I was at school as being enjoyable. I am unable to comment on the standard of singing as I was involved! Some I have attended over the years have been very good. Others less so. I therefore felt a slight sense of trepidation when I noted the involvement of the primary school in the service.

However, I need not have worried. Not only was their performance excellent, all the children involved sang their hearts out. The majority of the words were clearly audible to me, sitting at least 20 rows back, and that is some feat in a building the size of Llandaff Cathedral!

But perhaps the most notable part of their performance was the choice of carols. Of the five they sang, I only knew one. Having been a chorister at school and on and off throughout my life, this is an unusual occurrence as far as I am concerned. Further, some of the carols they sang were simply delightful. I recall most vividly one that was accompanied by the children on hand bells. I was mesmerised by the whole performance 4

FEBRUARY 2017

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It was a beautiful, clear, cold and frosty winter’s morning as I made my way to work today. A much pleasanter day that we have enjoyed for a while. Gone was the rain, damp and overcast depressing weather. “Proper” winter weather was here at last. Was it only me that was disappointed with the unseasonably warm weather on Christmas day just past? As it was also a Friday, it did lift the spirits but also made it that little bit easier to recollect what I have done since the last edition of Legal News.

I was honoured to be invited to the Valedictory for His Honour Judge Anthony Seys-Llewellyn Q.C. on his retirement as designated civil judge for Wales. This was held at the Cardiff Civil Justice Centre on 16th December 2016.

Not having attended such an event before, I anticipated a good-natured get together to wish the Judge the best in his retirement. I was not prepared for the formality of the proceedings, akin to a Court hearing, with all the principle players required to robe. Some weeks prior to the event I had been telephoned

by Robert Harrison, then of 30 Park Place chambers and now of course the new DCJ, to ask me who would speak on behalf of solicitors at the event. Unaware as I was of the formality of the occasion at that point (as well as being unaware that I was speaking to the next DCJ at the time – thanks Robert!), my sixth sense must have been working overtime as I suggested that it would be more appropriate for Paul Hopkins of Geldards, as the current President of Cardiff and District Law Society, to attend to this duty. As I then arrived at court for the valedictory, I bumped into Paul complete with winged collar, tabs and gown. I expressed my surprise at his attire! It was he who informed me that all the principle players were required to robe!

A very close shave that indeed, not least because I have no idea where my tabs are these days! Probably languishing in the bottom of a desk drawer, suitably LEGAL NEWS

ink stained, crumpled and generally dishevelled. Additionally, on enquiry with my partners as to the location of our old gown, I was told that it had mysteriously disappeared following a flood at our offices some years ago. Imagine the additional stress all that would have caused! Many thanks for picking up the ball on that one Paul. Your speech was a credit to you and to the solicitors’ profession in South Wales. Additionally, on behalf of the Confederation I extend my congratulations and best wishes to His Honour Robert Harrison on his appointment as the new DCJ. Following the Christmas break we were back into events with a thump. The Confederation held its latest quarterly meeting at the Law School, Ty Crawshay, at the University of South Wales on 12th January 2017. I made reference to this in my last column in 2016. We were honoured by the presence of Mr. Viv Williams of Symphony Legal, who spoke to the meeting on the subject of the challenges facing the profession with Brexit, the constant changes coming down the track and the tougher times that lie ahead. Viv is a charismatic, enthusiastic and congenial speaker. His clear passion for his work supporting law firms, with his stated particular preference of assisting those in South Wales, provided an immense and badly needed enthusiasm recharge for those of us present. If you were not there, you missed a treat. A very enjoyable, thought provoking but extremely positive presentation. Viv has offered to work further with the Confederation; an offer that I am sure will be taken up, with gratitude, very quickly. For the present, my sincere thanks to him for an impressive and enjoyable presentation, even if it was on a wet Thursday evening in Ponty!

Mention of the Treforest event would not be complete without a separate word of thanks to the sponsor of that event, Prosperous Legal Recruitment.

Prosperous provided sponsorship support for this event and has further committed to sponsoring the Confederation in the coming year. My grateful thanks to Claire Bowen of Prosperous for agreeing to sponsor the Confederation, attending the event

in Treforest on a dismal evening in January and last, but definitely not least, providing the free ice-scrapers for the delegates to the event! I am sure that these will be in use and be useful long after the details of the event from which they came have faded from memory.

I was further honoured to be invited to a reception on 19th January 2017 in the Sherriff’s room at Cardiff Crown Court by the new High Sherriff of Mid Glamorgan, Mr. Gwynfryn John George. Known to the Confederation and many others simply as “Gwyn”, he was one of the founder members with me of the Confederation some 20 years ago. Gwyn has been a true friend of the Confederation throughout its life and a keen supporter of local law societies in South Wales and generally. It was particularly pleasant therefore to be invited to this event and to be able to congratulate Gwyn on his appointment. The great and the good, together with a sprinkling of Judges, were present including no less than three Presidents of local law societies.

Myself for the Confederation, Paul Hopkins of Cardiff Law Society and Clive Thomas of Monmouthshire. Mike Walters also managed to blag his way in somehow! It was an enjoyable event and good to see some old faces that I had not seen for a while.

The future for the profession looks no less uncertain at the start of the new year than it did at the close of the old.

We can, however, look back on the past year with satisfaction and a pride that we both continued to provide the service so needed by our clients with our traditional professionalism and aplomb and that we managed to survive another year. With continued application and effort, I am convinced we will all still be here, still fighting for our clients, for many years to come.

Whatever government, regulators or even Donald Trump might have in mind for us. As the weather is bright today, so is our collective future should we choose to embrace it in a positive way.

Let us therefore go forward again, together. n Jonathan Hine JonathanH@jacklyndawson.co.uk

Bridgend county’s only independent school for boys and girls ages 2½ to 18 years

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CARDIFF AND DISTRICT LAW SOCIETY

PRESIDENT’S LETTER Happy New Year to everyone. 2017 looks like it will be an interesting year but I am feeling really positive about it.

It has certainly started well with the Supreme Court’s decision in R (On Application of Miller and Others) v Secretary of State for Exiting the European Union reaffirming the primacy of Parliament and the rule of law. An independent judiciary addressed a serious constitutional issue fairly, impartially and in accordance with due legal process.

It was good to see that this was recognised and positively accepted by the Lord Chancellor and the Government. We of course now move on to the parliamentary process but with the expectation that Article 50 will still be triggered in due course.

In December last year we celebrated the centenary of the premiership of the Right Honourable David Lloyd George. Lord George is so far the only Welshman and also only solicitor to have been Prime Minister of this country. It was fitting that the Law Society recognised this with a parliamentary reception at the House of Lords which I was privileged to attend. He was a key figure as Chancellor of the Exchequer, introducing many of the reforms that form the foundation of the modern welfare state and, of course, he was Prime Minister at the successful conclusion of the First World War. I have a small personal connection to

Lord Lloyd George as my grandmother met him in 1930 in Criccieth. He asked her if she would purchase a loaf of bread for him at the local store. He then kindly agreed to pose for a photograph. I was able to share this photograph at the reception and it is reprinted here. My great uncle is in the pram!

the Welsh Circuit Designate – Paul Hopkins QC (photographic evidence attached). Paul opened his speech with a nod to the Two Ronnies – “It’s good night from me and good night from him”. I wish Paul well for his term as Leader of the Circuit.

I would also like to congratulate His Honour Judge Robert Harrison on his appointment to the post of Senior Circuit Judge (Designated Civil Judge, Wales) with effect from 3 January 2017.

I attended the Specialist Court Users Meeting on 16 January attended by the new Chancellor of the High Court (Sir Geoffrey Vos). A major point of discussion was the impact of court fees on the number of cases being issued. The Chancery, Mercantile and TCC courts have seen a dramatic reduction in the number of claims being issued over the last few years.

The only reasonable explanation for this is the cost of issue which has become a significant disincentive to litigate particularly for SMEs. Anecdotally, the Chancellor referred to solicitors agreeing to progress claims with pleadings, disclosure etc. but without formally issuing any proceedings at court in order to avoid having to pay the court fees! A highly unsatisfactory situation and one the Chancellor promised to take up with HMCTS and the Treasury. He said he was optimistic of making some progress on this. I wish him well.

As an aside, there was much amusement at the Valedictory as my speech followed that of the Leader of

Two other points of interest arose from this meeting. First is the decision to drop the name Chancery

At the end of the year we also saw the retirement of His Honour Judge Seys Llewellyn QC as Designated Civil Judge for Wales. We hosted a reception for him at the County Club in November and I spoke at his Valedictory at the Civil Justice Centre on 16 December on behalf of the profession. There was an impressive turnout by the judiciary and local bar.

It was also good to see that our side of the profession was well represented.

He will be missed by all involved in the judicial process in Wales and we wish him and his family well for his retirement.

and to rename the Chancery Court as the Business and Property Court. This is to reflect a more modern judicial system and to help market the English legal and judicial system abroad post Brexit. In Wales it is likely to be called the Business and Property Court in Wales but I understand no formal decision has been made on this as yet. The other point of interest is the Chancellor emphasised that Welsh cases should be heard in Wales and that there will be a more robust approach to transferring Welsh cases back to Wales if issued in London. As a corollary for this, he promised that if the parties wanted a High Court judge to sit in Wales the court would do its best to facilitate this.

Turning to regulation, you may recall that we hosted a well-attended meeting with the SRA Board in October at the Raddison Blu Hotel.

The SRA Board is returning to Cardiff in March to hold its first board meeting in Wales. They are also hosting a reception at Craft In The Bay on Tuesday 7 March which is open to members of the local profession. Details can be found on the SRA website. The Legal Services Board has also approached us with a view to visiting Cardiff and the Society has agreed to a meeting.

It has also been a busy few months

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CARDIFF AND DISTRICT LAW SOCIETY for the Society’s Regulatory Committee. They have submitted a number of impressive responses to consultations on behalf of the Society and the local profession including the second consultation on “A New Route to Qualification – The Solicitors Qualifying Examination”. Our original response, no doubt with others submitted from across the country, had a positive effect and resulted in some revisions by the SRA to their plans. The second consultation is now closed and we are awaiting a response from the SRA. Copies of the consultations submitted on behalf of the Society can be found on our website.

We are now in the process of sending out renewal letters and invoices for the forthcoming membership year.

I am delighted to say that we have had a fantastic response to date and have significantly increased the membership of the Society.

If you have not responded as yet by returning your membership application and making payment may I urge you to do so. If you have not received an application form and would like to join the Society, please do not hesitate to contact me. The greater the membership the more effective we are as a voice for the profession both locally and nationally.

Finally, there are some great events coming up for the Society which I encourage members to attend and support. A social event is being arranged for Friday 10 March at a venue in Cardiff Centre to be confirmed. The President’s Golf Day

will take place at Radyr Golf Club on Thursday April 27 in support of my two charities - #staystrongforows and Velindre Cancer Centre. A mixed football match is also being arranged between Swansea Law Society and Cardiff & District probably for May. We are also hoping to return to Chepstow Races again this year and I am also planning a Lions rugby event.

I am also well advanced with arrangements for the Annual dinner at the City Hall on Friday 12 May. I am delighted to announce that we have secured Jeremy Bowen as our main speaker. A Cardiff man, Jeremy is a well-known broadcaster with extensive experience in the Middle East. I am sure he will have some fantastic stories to tell. This year we will be making three awards at

the dinner; LPC Student of the Year; Junior Lawyer of the Year and the Simon Mumford Memorial Award, awarded 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. I encourage you to nominate candidates for Junior Lawyer of the Year and the Simon Mumford Memorial Award by 31 March 2017 (see below).

Please make a note in your diary for the date for the Dinner and I look forward to seeing you on the evening. n Paul Hopkins paul.hopkins@geldards.com

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LPC Student of the Year Sponsored by SLD Wealth Management This prize is awarded to the best performing LPC student of the year at Cardiff Law School.

Junior Lawyer of the Year – Sponsored by Wessex Searches Junior solicitors (with less than 5 years PQE) and trainee solicitors practising within the Cardiff and District Law Society area are eligible for this award. Nominees will be considered based on their reputation, acumen, professionalism, commitment to clients and others including involvement in the community, leadership and energy.

Simon Mumford Memorial Award The Simon Mumford Memorial Award is made annually to a lawyer who works or resides (or has done) within the Law Society’s South Wales Constituency 8

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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 of ways in which Simon applied his endeavours to support and promote the law, the legal profession and those who serve it.

Nominations for these awards should be sent to the President, Paul Hopkins, at paul.hopkins@geldards.com or by post to Paul Hopkins, Cardiff & District Law Society, c/o Geldards LLP, Dumfries House, Dumfries Place, Cardiff CF103ZF to be received by 31 March 2017. Please provide as much information as possible to support the nomination. The awards will be judged by a panel comprising the President, Immediate Past President, Senior Vice President, Junior Vice President and Administrator of the Society. The Awards will be presented at the Society’s Annual dinner at Cardiff City Hall on Friday 12 May 2017. n

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Monmouthshire Incorporated Law Society

monmouthshire President’s letter This will be my last Presidents report as the time has finally come for me to hang up my gong. At our Summer Ball - I encouraged our Vice President, Andrew Twomlow, to take it off me quickly - before I before I got far too accustomed to it and it became spot welded to me. He has now wisely followed my advice!

I have really enjoyed the honour of being the President of the Monmouthshire Law Society. It is usual for the President to look back on his time in office and mine started on 1/4/2015 , 19 months ago (and about 4 stone ago-with all the dinners I’ve been to!) - so I have over-run just a bit. I was very keen to keep up the good work that had been done by previous Presidents, Keith Evans and Ashley Harkus in revitalising the Society - after a moribund period of around 5 years.

My year in office started which with a bang, as we hosted the National Local Law Societies Conference at the Celtic Manor Resort. It was a huge undertaking for us - but it proved to be very successful and put Monmouthshire Law Society on the map as one of the leading local law societies in the country.

After that went so well, there was a danger of everything else being like the day after the Lord Mayor’s parade, so we have been keen to push on and continue our resurgence as a very active local law society. We have responded to consultations on a number of very important subjects that shape the future of our profession like the Code of Conduct, the Solicitors Qualifying Examination, 10

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the Small Claims limit as well as running training courses and events.

will centre on managing a law firm profitably.

During my Presidency we have developed our influence as part of larger regional groups of Local Law Societies.

I should also mention last year’s Ball – it was a huge success again and a sell out! The President of the Law Society of England and Wales in attendance as well as special guest, Eddie Butler.

We have long been members of ASWLS (the Association of South Western Law Societies) along with the local law societies of Cornwall, Plymouth, Devon & Somerset, Gloucester & Wiltshire and Bristol - but we had lost touch with it somewhat. So I was honoured to become the President of ASWLS for 2015/16 and thoroughly enjoyed my year in that office. A lot of hard work was done to raise the profile of ASWLS. As a collective we represent over 10,000 solicitors and we now have a real voice and an identity, and Monmouthshire is now very much a part of it.

Over the last year we have broadened our Membership criteria and have introduced an Associate Membership – to reflect the legal landscape. So now Barristers, Legal Executives, Licensed conveyancers, Costs Lawyers and others associated with the legal professions can join as Associate Members. We have also brought in a new Corporate Membership. I would encourage any of you who have not yet done so to join the Society – reminders will be going out shortly.

In 2015 Monmouthshire Law Society also joined the Confederation of South Wales Law Societies. We fully support the Confederations plans for it to become much more relevant for practitioners and to help to attract lawyers who are not currently engaged with their local law societies. Our members benefit from attending their training courses and events. I should mention the next Confederation event is in London on the 2nd March as part of Wales Week in London. It’s a chance to network with practitioners in London and spread the word about the great legal work we do in Wales.

Further information is to follow soon!

The highlight of my time as President was attending the Opening of the Legal Year in London. There was a real sense of occasion, with all of the pageantry on display; it reminded me of the importance of the rule of law and the essential work of lawyers up and down country to provide access to justice for their clients. I think having an active local law society is vital for the future of the profession.

It provides a forum for lawyers to meet and share experiences and to be united in the face of so many challenges. I strongly believe we should stand together and to ensure that we do not let our proud profession be diluted or dumbed down.

We also held our inaugural Partners Lunch last year - which was a great success and covered such topics as Artificial Intelligence and the Law, the Future of Legal Services and the Indemnity Insurance Market.

We intend to repeat it later in April, partnering with one of our sponsors UHY Hacker Young, and this time it

Now onto my thank yous. I would particularly like to thank our treasurer Sarah Williams-Martin, as she is stepping down from the role this year. She has been fantastic both as Treasurer and as an ambassador for this Society. She has worked tirelessly to make the Ball a success every year, and has made it one of the highlights

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of the social calendar. I am delighted that Sarah has promised to remain closely involved. She will be replaced as Treasurer by Past President Ashley Harkus, who will, I am sure, do an excellent job.

I would like to thank Kirsten Tuck, our Hon Sec, for all that she does.

She is an unsung hero and all of her hard work during the year can easily go un-noticed. The Society could not function without the time and commitment that Kirsten puts into her role.

I would also like to thank the rest of our Council for their help and support during my Presidency.

I wish Andrew Twomlow very well as our new President. He full deserves the honour after so many years of dedicated service to the Society as the Hon Sec. I intend to give him every support this year, as Immediate Past President, as will the whole of our Council.

I am pleased to say that there are plenty of plans afoot to keep up the momentum that we have created.

Our next training course is on the 9th March at the Parkway Hotel in Cwmbran, in partnership with 9 Park Place chambers it is on Cohabitees and TOLATA cases. We will have another Partners Forum this year and we also hope to hold an admissions ceremony for new qualified solicitors in our area. We will also shortly be announcing a date for the Summer Ball.

I look forward to seeing the Society go from strength to strength! n Clive Thomas President President of Monmouthshire Incorporated Law Society clive.thomas@watkinsandgunn.co.uk

FEATURE

Diversity and Community Relations Judges (DCRJ): Who are we and what do we do?

DCRJs are serving judicial office holders, appointed from across the courts and tribunal system.

DCRJs work in a voluntary capacity to engage with the communities we serve; providing information about the judiciary, the work we do and how we are appointed. We also have a remit to encourage legal professionals and law students to consider a career in the judiciary, with a particular focus on individuals from under-represented groups. Finally, we are available to assist judicial colleagues and/or act as role models on diversity/community relations issues.

In the outward looking element of our role, we aim to increase public confidence in the legal system by enhancing understanding and knowledge about what we do and who we are; the aim is to dispel myths about the judiciary.

The way in which each DCRJ fulfils their role is individual, however examples of community engagement include: • visits to schools, colleges and universities to meet with students and share information about our work; • Cardiff Employment Tribunal hosted a local primary school, giving children in year 5 an opportunity to visit the Tribunal and meet staff and Employment Judges for a Q&A session followed by a mini mock trial, in which students and teachers had roles to play;

• playing the role of the Judge in mooting /mock trial competitions organised by the Citizenship Foundation; • meeting local community groups, such as a local Mosque.

As for our remit in encouraging others to consider a judicial career we have engaged in the following: • attending a Law Society “meet the judges” evening with local solicitors; • attended local FE colleges, meeting with CILEx and A-level students to participate in Q&A sessions; • hosting work shadowing for those interested in judicial career (either via local professional associations or the national Ministry of Justice work shadowing scheme).

ST JOHN'S COLLEGE

outcomes for pupils of all abilities’ (Crown Copyright, 2012).

St John’s College is celebrating outstanding A-level results again this year, with 81.9% A*/ A grades, 96.6% A*/A/B grades and 100% pass rate. Its sixth-formers, including a significant number with 4 A*/A grades, are proceeding to Oxbridge and top Russell Group universities, including medical and dental schools.

St John’s College has again been ranked top school in Wales in The Sunday Times ‘Parent Power’ based on combined A-level and GCSE performance this year. Its most recent Estyn inspection report graded the school ‘excellent,’ including the seldom-awarded ‘excellent’ grade for quality of teaching, and observed that the school achieves ‘exceptional

Throughout the school there is also an extensive and varied sports programme, a wide range of extra-curricular clubs and societies, with ample opportunity for drama, performance and public speaking, as well as established high-level career and volunteering opportunities.

St John’s College has an enviable musical reputation. A remarkable number of its maths and science students proceed to medical school and the most competitive university courses and are also grade 8 and diploma-level musicians. One of its oboists, Morgan Foley, obtained the highest mark in WJEC Further Maths (600/600) and is now studying Physics at Trinity College Cambridge.

For further information or to arrange a visit, please contact Admissions on 029 2077 8936 or by email: admin@stjohnscollegecardiff.co.uk

By sharing your story; your background and how you were appointed, you can raise awareness that there are multiple pathways to a judicial career.

Details of DCRJs based in Wales can be found at the following link: www. judiciary.gov.uk/about-the-judiciary/ who-are-the-judiciary/list-ofmembers-of-the-judiciary/diversityand-community-relations-judges-list/ If you are interested in hosting a meeting or event and wish to enquire about the attendance of a DCRJ, please contact Jacqueline McLean of the Judicial Office on: Jacqueline.

McLean@judiciary.gsi.gov.uk. n EJ Sian Davies Cardiff Employment Tribunal LEGAL NEWS

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FEATURE

BREAKING THE CYCLE January... The first month of the year, and already the Christmas break feels like an eternity away as fee earners leap back onto the great business hamster wheel, the never ending wheel of generating the necessary fees to survive, or if you’re lucky, to thrive.

It’s still early in 2017, and the regulators and “interested parties” that continually interfere in the profession haven’t begun their usual cycle of constant change that firms find so hard to plan for and adapt to.

an objective will be achieved is not so well understood, and because of that the actual implementation doesn’t work well. Couple that with a poorly understood, non-quantified objective and there is little surprise when the strategy is reviewed at a later date with lots of head scratching for why it did not succeed.

It’s all so tiresome and motivationally negative.

So what can firms do to break this vicious cycle?

Well, one of the first things to do it not to accept everything that has gone before. Most partners, owners and directors have heard the saying, “the definition of madness is to do the same thing over and over, and expect a different result,” however this is exactly what happens in many firms, as the constant need to generate fees overwhelms and stifles the creative and planning processes needed to break the cycle.

To do something different requires an acceptance that change is necessary, and the first place to start with is a simple question; what do we want for the firm? This sounds basic, but it is surprising at how often this fundamental question cannot be answered. “Oh, well we want more profitability,” or “we want to increase our turnover,” are responses, but they’re not well articulated. How much profit do we want to make, by when, why that amount, how and who will be responsible for achieving it? This sort of detail isn’t normally provided, yet is essential for the strategic planning process. If the owners of the firm can’t answer this in any detail, how can they expect to be able to deploy targets to the fee earners and staff in the business?

If we assume for a moment that the actual profitability figure can be articulated, either as a percentage or 12

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a figure, then the other parts of the question become important.

By when? This year, next year, the year after? The timeline has to be specific so that steps can be built into the strategic plan. After all, do you know how to eat an elephant? That’s right, in small bites...

The why is also an important question. Yes, it should be obvious why the owners want to make a profit, but why any particular amount can be important in motivating personnel to get on board. Is it so that some part of the profit can be put back into the firm to help grow it with investments for new case management, personnel or offices?

But there’s the flip side of that too What would be the risk or impact on the firm if it fails to achieve the objective? While the positives of any objective should be emphasised, the negatives also have to be considered

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carefully. For example, if the firm relies heavily on any one source of fees, and that source is subject to a tender, what is the impact on the firm if it fails to secure the tender?

And of course, there’s the magic question... How? How does the firm achieve its stated strategic aims? This question also normally has one of the least detailed answers, where it should carry the most comprehensive. Typically, an answer may look like “by expanding our market share for XXXX category

by XX percent.” That simply isn’t enough. How will the market share be expanded? Will it be a combination of approaches?

Will there be a detailed project plan?

The last question usually causes the most consternation, and drives the most argument. While solicitors understand case plans and how to manage a file, a detailed project plan addressing the mechanism for how

And finally there is the who Who is responsible, and more importantly, accountable for the achievement of this objective?

Because that is also the reason why objectives fail, the person who is meant to be the driver for the objective doesn’t feel they own it or are accountable for it. Or there is ambiguity for the responsibility, where the objective has been assigned to two or more people. This is a mechanism for the “blame game” where parties will deny it was their responsibility and blame each other.

The problem is, blame at the point of failure is irrelevant if the objective isn’t achieved, it will be the firm that has failed.

These are the basic building blocks of forming a strategic plan to help escape the fee earner hamster wheel.

So, if you want to stay on the wheel then forget you read this article.

If however, you want to escape, then…

Take the first step. n Paul Jones cpm21

Immediate vacancies for experienced Costs Lawyers/ Costs Draftsmen If you are an experienced, motivated and professional Costs Lawyer/Costs Draftsman, looking for an opportunity within Cardiff, we invite your application by CV, together with a covering letter.

Employed and Consultancy positions are available. We are looking for individuals with a minimum of six years’ experience, although exceptional candidates will be considered.

Membership of the ACL will be advantageous and salary is negotiable and dependent upon experience.

The Solicitors Regulation Authority would like to invite members of the Cardiff and District Law Society to a reception to mark the occasion of our first Board meeting in Wales.

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As the regulator of almost 5000 solicitors and around 450 firms in Wales, our Chair, Enid Rowlands, and our Board want to make sure that our regulation meets the needs of the public, small businesses, the economy and all parts of the profession in Wales.

The ideal individual will therefore be organised, efficient, proactive, motivated and reliable. Time management skills, together with the ability to focus and work accurately to strict deadlines is essential. Excellent communication skills are required together with a good working knowledge of the relevant Civil Procedure Rules and Case Law. The ability to work well as an individual and within a team environment is a necessity, together with the ability to show initiative. Strong IT skills are also required and familiarity with CostsMaster is essential.

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Craft in the Bay, The Flourish, Lloyd George Avenue, Cardiff CF10 4QH

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18.00-19.30pm Tuesday 7 March 2017 (speeches at 18.30)

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SRA WALES RECEPTION 2017

Main responsibilities will include but are not limited to: • Preparation of bills of costs in inter partes and legally aided matters • Drafting Points of Dispute and Replies • Efficient management of an active case load to ensure that negotiations are concluded within specified time scales/ service level agreements, whilst ensuring that costs recovery is maximised to client satisfaction • Preparation of Costs Budgets and Budget Discussion Reports • Advocacy – both within detailed assessment and costs management proceedings

Please join us and share your views and priorities.

Places are limited, so please register your place by visiting events.sra.org.uk/sra/226/register.

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Unity

email: info@synergycosts.co.uk Telephone: 029 2066 5788 Fax: 029 2022 5402 DX 33043 Cardiff 1 Synergy Costs Ltd, Paragon House 13 St Andrews Crescent, Cardiff, CF10 3DB Company No. 9308504

www.synergycosts.co.uk LEGAL NEWS

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FEBRUARY 2017

13

FEATURE

BEWARE THE USE OF CLIENT ACCOUNT FOR BANKING SERVICES Reports of the action taken by the SRA against three individuals from London firm Fladgate LLP have caused interest and concern amongst the profession in equal measure. The SDT decision involves breaches of r.14(5) of the SRA Accounts Rules 2011 and provides clear warnings as to what the regulator will regard as prohibited usage of law firms’ client accounts.

The SRA produced an advice note on this topic in December 2014 in the light of the decision in Fuglers LLP v SRA [2014] EWHC 179 (Admin) (QB), a case arising from the insolvency of Portsmouth Football Club in 2009.

The firm’s client account had been used at the time to receive payments in from the Club and others, and to transfer out several millions of pounds to service the Club’s day to day trading activities - at the time the Club’s banking facilities had been withdrawn by its bank as a result of a winding up petition which had been presented by HMRC. The substantial fines were upheld on appeal.

To comply with the SRA requirements, there must be some discernible instructions to explain why the funds are in the client account.

Furthermore, and perhaps less clearly understood, the service provided by the firm must be within the ambit of its authorisation to operate as a law firm – see section 327 of the FSMA 2000 which requires that any financial services provided must be “incidental to the provision ... of professional services”. Where a solicitor provides services, which are in effect mainstream banking, they will not be authorised and could be seen to be conducting their practice in an illegal manner. In Fuglers it was held that it was “blatantly obvious that there could have been no underlying legal transaction” in relation to a number of the transactions, including dry cleaning bills and payments for coffee supplies, resulting in the finding in this case and the sentences imposed.

Quite apart from the fact that a law firm is neither qualified nor regulated to provide such a service, it would 16

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create an opportunity for money laundering by shielding transactions from the view of the banks. The use of the client account might also have the effect of disrupting the proper recovery of funds in the event of the client’s insolvency, as in Fuglers.

There was no suggestion of any illmotive or money laundering on the part of the three defendants in the Fladgate case, but they were judged to have fallen foul of rule 14(5) by having effected various commercial transactions to the value of just over £4m for a client though a variety of companies. All three defendants were partners in the firm, the first defendant having had most of the dealings with the client concerned through his role as client partner, and the second as the firm’s Money Laundering Reporting Officer (“MLRO”). The third defendant had had much less involvement and was involved in what was referred to as an inadvertent breach. The first two defendants were fined £13,000 and £15,000 respectively, with all three receiving a costs order against them which, at £40,000, attracted a good deal of additional comment on legal chatrooms.

As to where these decisions leave law firms, there have been particular concerns amongst those providing private client services, as with those specialising in care for the elderly or victims of serious injuries. Where the client’s circumstances provide a justification for such services, and the ensuing financial transactions can be seen to be an element of the legal services provided, there will be no breach of the rule. Even here, however, the SRA might prefer that the adviser provides their services

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through a joint account with the client, or operates the client’s own account on their behalf - see SRA Accounts Rules 9 or 10. Although most such arrangements will involve clients who are low risk for money laundering purposes, the accounts will then be open to normal banking scrutiny, thus overcoming some of the concerns expressed by the regulator.

Many will find the SRA’s approach that there is no reason why a client should not conduct their own banking, electronically if needs be, somewhat unsympathetic - all the more so given the increasing risks of cyberfraud. If a firm feels that they can justify providing a service to a client who is old or infirm which will involve transactions being made through the client account, then they should be sure to have a retainer agreement in place at all times. They should also review it at least annually and ensure that they set out their rationale for its need.

For those who feel that the SRA is penalising a service long provided by solicitors as the’ trusted family adviser’, it is sensible to accept that the law has moved on. The FSMA 2000 has placed more stringent regulation on banking activities which now restricts the freedom of law firms to do what they did in the past. The rationale for the SRA’s approach is its responsibility to prevent money laundering, whether intentional or inadvertent.

On this latter point, the judgment in Fladgate stated that the firm’s MLRO and the second defendant “had a specific responsibility to ensure that there was no risk of the Firm’s accounts being used for money

laundering purposes”. Although there was “no evidence whatsoever” that money laundering was involved, the failure to prevent the client account from being used as a banking facility “raised the risk of that scenario”.

As gatekeeper, it his responsibility to prevent this sort of breach from occurring.

This part of the judgment is questionable, and might well be worth considering within firms as to “who does what”. The role of MLRO as the “nominated officer” is set out in r.20 of the Money Laundering Regulations 2007 and is limited to (1) receiving internal reports of suspicions of money laundering or terrorist financing activity and (2) reporting to the NCA when appropriate. Although most MLROs assume responsibility to monitor compliance in this aspect of the practice, it is not a regulatory requirement as such. Some jurisdictions recognise two roles : MLRO and also a Money Laundering Compliance / Prevention Officer. The need for this additional role may well form part of the revised Money Laundering Regulations to be implemented next year - in the meantime one would have thought that it would be the COFA who should have been the gatekeeper to compliance with this element of the SRA Accounts Rules, and not the MLRO. n Hugh Price Solicitor and Honorary Secretary for Regulatory Matters for Cardiff & District Law Society Hugh@HPConsult.co.uk www.hughpriceconsulting.com Hugh Price Legal Consulting Ltd, is an associate member of Infolegal, a national group of independent regulatory consultants.

CHANCERY LANE

chancery lane news I hope that every reader had a merry Christmas and a happy New Year. There was unwelcome but sensational news at the beginning of the year from the Law Society which I’ll discuss later in this article. I’ll begin with two happier topics.

Important Book on Welsh Law Published On the wild, windy and wet night of 21 November 2016, I visited City Hall for the launch of a significant book. Administrative Law and the Administrative Courts in Wales by David Gardner may not be as snappy a title as Fifty Shades of Grey or The Art of the Deal, but it is a book of greater historic significance than either of them. It is the first book published in The University of Wales Press’s series of Public Law in Wales.

As the law of Wales diverges from the law of England, a growing body of laws which apply only to Wales is developing. Some of this law is made in Wales, though only 22 Assembly Measures and 28 Assembly Acts have been enacted. Increasingly the UK Parliament passes legislation which applies only to England, repealing, as far as England is concerned, statutory provisions which formerly applied to both England and Wales. The old legislation still applies to Wales unless the National Assembly repeals it. So the divergence in the law of the two countries is due to the legislative activity of England as well as that of the National Assembly.

When one adds the raft of statutory instruments, guidance, circulars and so on which apply to one country but not the other, one can appreciate the amount of law which applies only to Wales and the need for textbooks on the law which applies in Wales. The law which applies in Wales in the 21 subjects in which the National Assembly has legislative competence is a mixture of Wales-only law and law which applies to England and Wales.

The people of Wales and the legal practitioners in Wales need access to texts which deal with both strands of Welsh law. David Gardner’s excellent book is a pioneering work which does precisely that. This is an exciting 18

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series of law texts and I was honoured to be at the launch, mingling with distinguished judges, barristers, solicitors and academics to celebrate David Gardner’s book.

House of Lords Reception to Celebrate Lloyd George A couple of weeks later I was off to the House of Lords to celebrate the centenary of Lloyd George becoming prime minister. The reception was organised by the Law Society and was held in the Cholmondeley Room in the House of Lords. It is said that the initiation test for peers requires them to pronounce the name Cholmondeley correctly. Whatever one calls it, the room is in a sublime location, separated from the fastflowing mud-brown river Thames by a narrow terrace. It must be fabulous in the summer. It was pretty impressive on a grey December afternoon with a hint of rain in the air. MPs, peers and solicitors with Welsh connections were addressed by Robert Bourns, the president of the Law Society.

Thank you Lowri and the Wales office for the invitation.

Resignation of Chief Executive of Law Society And so I come to the resignation of the Law Society’s chief executive. What can I say? I’m sure you know what she said when she announced her departure.

Her valedictory remarks received much publicity but, apart from a few words from the president to say that it is business as usual at the Law Society which will continue its progress to reform its governance and its council, her comments were greeted with silence from the Law Society.

At 4.20 pm on Tuesday 3 January, Catherine Dixon sent all council members an e-mail telling us that she was resigning and explaining her reasons. She marked the e-mail “Strictly private and confidential -

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not to be shared with third parties”.

Within 40 minutes the Law Society Gazette had published its story about her resignation on its website (and included the text of the e-mail) and someone had posted a comment on the story. It is public knowledge.

The reasons for her departure were unpersuasive. She claimed that the Law Society and the council were not prepared to change. This is odd, because in October we’d agreed to create a main board with executive functions which would consist of 4 or 5 council members, the chief executive, 2 solicitors who are not members of council and 2 lay members. She had wanted this. She was upset because we voted against the chief executive having a vote on the board. We did so because the main board will hold the chief executive to account. There would be an obvious conflict of interest whenever the chief executive voted on his/her performance. She didn’t see it. She was also upset about delay in recruiting the main board and charging it with reviewing the Society’s boards and committees. Council thought it best to resolve the governance structure before appointing the members of the main board. Council was not prepared to cede power to a new board with a substantial noncouncil membership until it had approved the entire new governance structure. There was nothing personal in these decisions. There was no need for the chief executive to resign.

There was a great deal of goodwill towards her when she started the job.

Council was tiring of her predecessor’s bombast and her emollient style was a pleasant contrast. But although the tone of discussions with the SRA softened, their positions remained unchanged. Within months it was apparent that she did not share council’s views of the roles of council and the chief executive. Her resignation

letter made it clear that she resented being held accountable to council and its boards. She spoke fluent management-speak but her skill sets, toolkits, dashboards and silos had neither leverage nor traction. She was horizon-scanning but couldn’t see what was immediately in front of her. That’s a problem when you’re going forward.

Although she was proud of the Investors in People accreditation won by the Law Society, staff turnover throughout the organisation was high. When questioned about difficult issues she would deny there was a problem and blame others. As it is the chief executive’s job to fix these problems, she’d lost the support of much of council. She had no interest in Wales, confining her 2 visits to the country to Capital Tower in Cardiff.

The future Catherine Dixon was right to recognise that the Law Society should reform itself to be prepared for the loss of income from practising certificates which would arise if the Society lost its status as an approved regulator.

That is why the council’s meeting in February will deal with two main issues: governance reform and what Catherine Dixon called the “valueproposition”. This is looking at how the Society provides value for money to its members so that it becomes attractive to subscribing members.

The new interim chief executive starts work on 6 February and the process for recruiting a new chief executive has begun. The Law Society has appointed the Good Governance Institute to assist with the governance review. Progress is being made. I am confident that after suitable scrutiny of the proposals, the Society’s governance will be reformed. n David Dixon Twitter: @saldixie