Page 1


W

H

The City of Westminster & Holborn Law Society

www.cwhls.org.uk A company limited by guarantee. PUBLISHER Ian Fletcher Benham Publishing Limited 3tc House, 16 Crosby Rd, Crosby, Liverpool L22 0NY Tel: 0151 236 4141 Fax: 0151 236 0440 Email: admin@benhampublishing.com Web: www.benhampublishing.com ADVERTISING AND FEATURES EDITOR Anna Woodhams DESIGN AND PRODUCTION MANAGER Fern Badman ACCOUNTS DIRECTOR Joanne Casey MEDIA NO. 1317

5

The President’s Column News & Events

6

CILEX Inspires Women of the Future

6

Review of Copyright Collecting Societies Launched

8

Council Member’s Report

10

The Centre of European Law, King’s College London 40th Anniversary 2014

11

Retirement of LawCare CEO

11

Flood-hit Richard Griffiths & Co Kept Afloat by Quill Property

PUBLISHED February 2014 – © Benham Publishing LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Media. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press. Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us. The City of Westminster and Holborn Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age, Disability or Sexual Orientation. DISCLAIMER All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between members and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

COPY DEADLINES Summer Autumn Winter Spring

Introduction

Issue Issue Issue Issue

85 86 87 88

4th April 2014 4th July 2014 3rd October 2014 2nd January 2015

Members wishing to submit material please contact the Editor, Ivan Ho, before copy deadline. Email: ih@hunters-solicitors.co.uk Anyone else wishing to advertise or submit editorial for publication in the Report please contact Anna Woodhams before copy deadline. Email: anna@benhampublishing.com Tel: 0151 236 4141

12

A Cautiously Optimistic Outlook Private Client

14

Why We Should All Consider Making a Lasting Power of Attorney Development

16

Educating Young Lawyers in the Community Professional Practice

18

Prevention is Protection

20

“It’s the Economy, Stupid!” Or Is It?

22

Law Firms Optimistic Despite Increased Competition

24

‘Judicial Independence’ Lecture Book Reviews

26

Law Firm Strategies for the 21st Century

26

The Bar Handbook 2013-14

27

Transnational Law of Sports Sub-committee Reports

28

Professional Matters Sub-committee

28

Junior Lawyers’ Division

28

Law Reform Sub-committee

28

International Sub-committee

29

Land Law and Conveyancing Sub-committee

29

Education and Training Sub-committee Charity Support

30

Welcome to a Very Special Partnership… Welcome Cottages and Dogs Trust

President:

Hon Secretary:

Hon Treasurer:

Editor:

Administrator:

Susanna Heley susanna.heley@rlb-law.com

020 7227 7463

Jonathan Cornthwaite jcornthwaite@wedlakebell.com

020 7395 3122

Bruce Clarke bruce.clarke@lbmw.com

020 7222 5381

Ivan Ho ih@hunters-solicitors.co.uk

020 7412 0050

Susie Hust, 1 The Sanctuary, London SW1P 3JT admin@cwhls.org.uk 020 7960 7115

theReport0003


Introduction

THE PRESIDENT’S COLUMN

President Susanna Heley.

It seems odd, after three months as President of CWHLS, to be writing my first column for our Report. We have had an eventful time, both within the Society and more generally in the world of legal services and that looks set to continue. Meeting with Presidents and representatives of other local law societies, it is very interesting to hear their thoughts on the issues facing our profession. Criminal Legal Aid remains the number one topic on everyone’s lips, unsurprising given the Law Society’s unprecedented Special General Meeting in December and the withdrawal of labour in January. Of perhaps greater relevance to our members though were the discussions on more general issues such as how to promote engagement with members and ensure that their views are heard by the right people at the right time. We will be trying a number of new initiatives this year to encourage members to get involved, not only with those from regulators and other organisations but also with each other. Although London is atypical in that very few of us live and work in the same area, we have a lot to offer each other and CWHLS is looking for ways to enable functional local networking as well as effective representation of our profession at all levels. As many members will know, CWHLS is fortunate in having a number of very active and dedicated members who sit on the Law Society Council. We are working on ways to promote engagement between the SRA and our members and, if there is sufficient interest, we will be working on initiatives to engage more fully with other bodies and regulators who have an impact on the future of the profession. At the risk of repeating myself, I urge members to get in touch and let us know of issues you think we should be taking up on your behalf. Or better yet, join one of our sub-committees – it’s how I started and I have met some fascinating people along the way. It’s really easy to get involved with the work of CWHLS – just get in touch! It is an excellent forum for discussion and exchange of ideas. We have great relationships with local, national and foreign law societies and bar organisations.

DIARY January 22

Committee Meeting

22

Dinner with the Law Society President

February 19

Committee Meeting

26

Nigel Mayhew Lecture

March 19

Committee Meeting

April 7

Annual Dinner

30

Committee Meeting

Coming down off my soapbox, I will take a moment to remind you that our annual dinner – which is really our flagship event, attended by members of other local societies and our twinned foreign bars – will take place this year on 7th April. Lord Neuberger has very kindly agreed to act as guest speaker. This year, we will be extending the event to include post dinner entertainment and to allow more opportunities for networking. It is a great opportunity to dust off that formalwear and I look forward to seeing as many of you there as possible. Full details will be in the e-Report. We have other events planned, but I won’t spoil the surprise as the details of immediately upcoming events can be found in the following pages.

29. For further information, please

All that remains is to leave you to enjoy this edition of the Report. Happy reading.

see the monthly e-Report or contact

May 19 London Legal Walk 21 Committee Meeting

Details of lectures appear on page

Susie Hust at admin@cwhls.org.uk SUSANNA HELEY PRESIDENT

theReport0005


News & Events

CILEX INSPIRES WOMEN OF THE FUTURE social mobility. The CILEx route to qualifying as a lawyer is a testament to this as it allows school leavers, paralegals and career changers, from any background, a flexible and affordable pathway to progress in the law.” Miriam González Durántez, Partner at Derchert LLP said: “Girls need to feel free to make their own choices. The main purpose of the Inspiring Women campaign is to reassure them that there are many female role models out there willing to help and that any option they take in life is valid if it is what they really want.” The campaign, run by the Education and Employment Taskforce, aims to get 15,000 women volunteering to give up an hour a year and go into a school or college near where they live or work to collectively chat with 250,000 young women about their career and their experiences in life.

The Chartered Institute of Legal Executives (CILEx) attended the national Inspiring Women campaign event which was supported by Miriam González Durántez, Partner at Dechert LLP at Basildon Upper Academy in London on Wednesday, 22 January. The ‘career speed dating’ event brought together 100 girls and ten highly successful women and was followed by a careers fair hosted by 175 women from a wide range of industries. Jennifer Egginton, Chartered Legal Executive and Regional Development Officer for CILEx attended the fair, representing women working in law. Jennifer said: “The event was fantastic, there were so many role models and industries represented that the girls could really be inspired and motivated. Seventy four per cent of CILEx members are women and we are champions of

The ten successful women who attended the ‘career speed dating’ event were: • Dr Margaret Aderin-Pocok MBE, Space Scientist • Christiane Amanpour, Chief International Correspondent, CNN • Clare Balding, Presenter, Writer and Broadcaster • Gail Bojarski, General Manager, Benefit Cosmetics • Samantha Cameron, Creative Consultant, Smythson • Miriam González Durántez, Partner, Dechert LLP • Mandy Hickson, former Royal Air Force fast jet pilot • Dame Tessa Jowell DBE, Politician • Chrissie Rucker, Founder, The White Company • Jennifer Taylor, Chief Operating Officer EMEA, Bank of America Merrill Lynch Find out more about CILEx courses at: www.cilexcareers.org.uk.

REVIEW OF COPYRIGHT COLLECTING SOCIETIES LAUNCHED • Is there music playing in your local pub or restaurant? • Is an article you wrote being photocopied for college students? • Do you need to get blanket clearance to reproduce text and images for your company website? These are just some of the issues dealt with by the 12 UK copyright collecting societies that are subject to an independent review launched today. The societies exist to enable people who want to use copyright material to pay for a licence, distributing that money to those who have created the work that is being reused. Walter Merricks CBE who is conducting the review is asking for views about how the system is working.

Walter Merricks said: “The creative industries and the rights they generate form a significant contribution to the UK economy, and the internet has changed many of the business models that used to make copyright protection simpler. In the digital age the work of the societies is more complex and it is vital that they are seen to operate to the highest standards. There are many different rights interests involved from individual artists and writers to huge music labels and book publishers, and among licensees there are small high street businesses, schools and colleges as well as massive corporations and government departments. So it’s not surprising that people have different views on how well things are working.

The societies are private bodies but should they be more transparent and accountable? Two years ago the societies decided to be more open and to put in place codes of conduct detailing how they operate. The Government has also set out standards and is taking powers to ensure societies have adopted satisfactory codes and to discipline societies where necessary.

I’ll be looking to see whether the codes form a self-regulatory framework in which not only rights holders and licensees, but also the public, the government, and other copyright bodies, can have justifiable confidence.

Now the societies – through the British Copyright Council, have asked Walter Merricks, the former financial ombudsman, to carry out an independent review of how their codes are working.

To help my review I want to hear from anyone with experience of or views about the collective management of rights and how well the societies’ codes are working.”

6000theReport


News & Events

COUNCIL MEMBER’S REPORT DECEMBER 2013

Sara Chandler

The December meeting of Law Society Council was dominated

The Council passed a resolution reaffirming its opposition to the

by the pressing issue of the Special General Meeting called to

cuts. Council expressed its opposition to the proposals for

debate a vote of no confidence in the Law Society President. A

single fees irrespective of plea, and the single national fixed fee

record debate in Council culminated in the reaffirmation of the

for police station work. In addition to the continued opposition to

Council’s commitment to direct engagement with the Ministry of

the cuts to criminal legal aid, the resolution endorsed the use of

Justice on proposed changes to legal aid. A sector of the

all appropriate resources to oppose the planned changes to civil

profession, legal aid solicitors who represent clients in criminal

legal aid, in particular the plans to restrict access to judicial

proceedings, have condemned the negotiations carried out by

review and the proposal to introduce a potentially illegal and

the Law Society, and voiced their views that the Law Society was

unworkable residency test.

to blame for the Ministry’s cuts to legal aid, and subsequently their livelihoods.

The second important issue was the report from the SRA, with Anthony Townsend and Charles Plant. They reported that the

The Ministry’s proposed contracts for the provision of legal aid for criminal cases cut the rates for representation as well as restrict those practitioners who can provide advice in police stations, with the aim of making severe cuts to legal aid. The Ministry has stated that it wishes to reduce the number of solicitors firms who provide legal aid in criminal cases. This impacts disproportionately on the smaller firms owned by black and ethnic minority solicitors, who provide access to justice for black and ethnic minority communities, with services provided in community languages. Practitioners in Liverpool started a nationwide campaign to challenge the Law Society and in particular those involved in negotiations with the Ministry of

SRA had recently undertaken a review of its effectiveness carried out by independent consultants and the report had been sent to the Law Society. The report to Council on the 10th December was the first report under the new governance arrangements and it was a description of work in progress. In short their oral report covered the programme of reform of regulation begun seven years ago and included replacement of: outdated legislative structures; long standing governance arrangements; a reactive regulatory approach; and dangerously outdated processes and IT infrastructure. The annual report showed that there had been substantial progress in all of these areas but viewed strategically none of them was yet complete.

Justice. The report continued to speak of the new SRA handbook and Council reaffirmed the Law Society’s position of negotiation in

Outcome Focused and Risk based Regulation; ABS licensing

order to secure the best possible deal for all of its members and

and authorisation processes working effectively; the avoidance

to ensure continued access to justice. The achievement earlier

of a significant number of financial collapses achieved; there

in the year by the Law Society’s legal aid team in securing the

had been a reduction of the historic burden of detailed

reverse of the Ministry’s proposed price competitive tendering

regulation through the red tape initiative; backlogs in the

had been forgotten perhaps. Client choice of solicitor had been

compensation fund and statutory trust accounts were now under

preserved, concessions were secured, which give members

control; the ARP had been closed; the single site move

longer than originally envisaged to adapt to change. The final

achieved successfully on time and on budget; issues in respect

number of contracts to be awarded will not be set by political

of the contact centre were being resolved; the time limits of SDT

‘diktat’ but on the basis of independent, published evidence.

prosecutions continued to improve and the number of matters

8000theReport


News & Events

that were resolved without referral to the SDT continued to

Over 400 members attended the SGM from all parts of the

increase; operating costs were on a downward trend;

country, with a majority of those present from the criminal legal

encouraging signs that the investments of the previous years

aid community, but some also from across the breadth of our

were beginning to pay dividends. The new approach to

diverse profession. President of the Law Society, Nick Fluck,

regulation was standing up to the economic pressures but it

wrote “The debate was conducted in a manner that did our

could be better; it was encouraging that Corporate Solutions

profession much credit. In such an emotive area, all speakers

was now addressing the historic problems of shared services.

were listened to with courtesy and respect and, although I had

In answer to Council members’ questions Anthony Townsend

profession that could conduct itself in such a manner even with

been named personally in the motion, I was proud to be part of a

commented as follows: the Call Centre had experienced

the stakes so high.”

considerable difficulties but it was now working as it should. Hard work had gone into improving staff attitudes towards members of the profession and the notion that the SRA routinely treated members of the profession with contempt was wrong. In the vast majority of cases SRA staff treated members with the respect that they deserved. Getting the balance right between the burden of regulation and guidance was difficult. There was work to be done jointly between the SRA and the Law Society to persuade firms that they were not required to write their own rule

The vote was very close with 228 in favour of the motion and 213 against, with 9 abstentions. The Council met immediately after the meeting to consider what had been said by participants in the meeting. The main points taken on board were: • Members wanted the Law Society to campaign more publicly. • Members did not feel the Law Society had engaged with them sufficiently during the campaigning process. • Members wanted the Law Society to express outright unequivocal opposition to cuts.

book. There had been a wide consultation on the minimum salary for trainees. Research undertaken had suggested that the

Law Society Council subsequently confirmed its commitment to

minimum salary might be an impediment to the creation of

continue opposing cuts that will risk the livelihoods of criminal

training contracts.

solicitors and which jeopardise the quality of our criminal justice system in England and Wales. We also committed to increase

The Council meeting was held one week before the Special

our engagement with members. This process started on 6th

General Meeting of the 17th December and Council expressed

January as senior office holders began touring the country,

its regret at the proposal for a no confidence motion at the

speaking at roadshows held with local Law Societies groups

upcoming SGM. Council members pledged to engage with local

and meeting criminal legal aid members to get feedback so as

law societies and practitioner groups, as well as facilitating the

to enable the Law Society team to redouble efforts and secure

widest possible participation of practitioners, as it continues to

more concessions from the government.

lobby the Government on these issues. PROFESSOR SARA CHANDLER At the SGM on 17th December the vote of no confidence was pretty close, with a margin of 15 votes in favour. Worries that a postal ballot would follow are over as the deadline for lodging a request for a postal ballot passed during January.

theReport0009


News & Events

THE CENTRE OF EUROPEAN LAW,

KING’S COLLEGE LONDON 40TH ANNIVERSARY 2014

The Centre of European Law has a fine tradition of teaching and research into all areas of European Union Law and celebrates its 40th anniversary in 2014. It enjoys a reputation of excellence for offering a distinguished programme of public lectures, seminars and conferences. As well as a lunchtime lecture series in EU Competition Law, the Centre also is holding a conference in EU Environmental Law on 14 February, Annual EU Law Conference on 21 February and a conference entitled Britain Alone on 9 May. We are also planning seminars in 2014 on EU Procurement Law, IP Law, Access to Justice and State Aid to the film industry. Full details can be found on their website http://www.kcl.ac.uk/cel or please contact the centre cel@kcl.ac.uk to be placed on their mailing list. The President of the Centre of European Law is Professor Sir Francis Jacobs, KMCG, QC and its current directors are Professor Andrea Biondi and Professor Takis Tridimas. Over 300 students are currently enrolled on our four Postgraduate Diploma/MA Programmes in EU Law, EU Competition Law, Economics for Competition Law and United Kingdom, European Union and United States Copyright Law. These programmes have an excellent reputation amongst the top UK and EU Law firms who sponsor their employees to take the programmes. All of the Centre’s activities are closely connected with research undertaken at King’s, and aim to contribute to the creation of a rich and stimulating research environment. This makes the Centre a true centre of European law, unique and recognized in the UK, Europe and beyond.

10000theReport


News & Events

RETIREMENT OF LAWCARE CEO LawCare wishes to announce the retirement of its Chief Executive, Hilary Tilby. Hilary has indicated her intention to retire and hopes to leave at the end of June 2014.The board of trustees have sadly accepted her resignation and wish her a long and happy retirement. Hilary joined LawCare in April 2001 and was appointed Chief Executive on 1st January 2003. Under her stewardship, LawCare has become a leading provider of pastoral care and health support for all branches of the legal professions, their families and staff. Hilary has overseen its

successful extension of its remit beyond England and Wales to Scotland, Northern Ireland, the Republic of Ireland and the Isle of Man. The Legal Professions and their families throughout these jurisdictions owe Hilary an enormous debt of gratitude for all she has achieved on their behalf in the last decade. Her considerable achievements in leading LawCare are testament to her unfaltering hard work, commitment and dedication as Chief Executive.

FLOOD-HIT RICHARD GRIFFITHS & CO KEPT AFLOAT BY QUILL The continued domination of the news headlines by extensive flood water devastation in southern England is a distressing observation of our vulnerabilities to extreme weather conditions.

everything – documents, letters, attendance notes – is saved to case history and can be accessed from anywhere with an internet connection. So that meant it was still possible to do a day’s work in spite of being unable to travel”.

As reports convey chaotic scenes of destruction caused by rising flood waters, our transport infrastructure is disrupted because of rail signal failures and blocked roads. Mass evacuation has taken place across the Thames Valley and further afield, assisted by military deployment, so that homes and corporate premises alike are abandoned by owners forced to seek refuge elsewhere to avoid the life-threatening water levels. For many companies, there’s no other option than to close for business entirely until the rain ceases and waters recede. However, weather forecasts are predicting continued widespread heavy rain, coupled with winds of up to 70 miles per hour, so there are dozens of severe weather warnings in place and the Environment Agency expects water levels to rise perilously higher as a result. Even when the worst of the weather has subsided, the ensuing recovery operation will take months and, as yet, many businesses are uncertain about when their doors will reopen and staff will be able to journey to the office. Joseph Cooke, solicitor at Wiltshire-based family-run law firm, Richard Griffiths & Co, explains how “the flooding in the south west is so bad that virtually all trains were cancelled on 7 February”. In Wiltshire, both ground water and river water levels have risen dangerously high. Despite being directly affected by flooding, thankfully, as a user of the cloud-based Quill Interactive legal accounts and practice management software, the firm could continue operating as normal with staff working remotely from home. “In the past, the floods would have been a real problem because, without having taken any files home the night before, I would have found it very difficult to do any work”, continues Joseph. “However, Quill solves this problem because

theReport00011


Property

A CAUTIOUSLY OPTIMISTIC OUTLOOK Perran Moon, Marketing Director at property search provider SearchFlow, takes a look ahead at 2014, with his thoughts on where the property market may go over the next twelve months. With the old year drawn to a close, the festive season is a time to reflect on what has been and hopes for good fortune in 2014. For the property market, the mood is certainly more buoyant than a year ago. I am sure we will all be viewing 2013 as the year when the tide of sentiment turned - when we emerged from the longest coldest winter on record into a spring of economic hope. In an economy so dependent on consumer sentiment powered by house prices and affordability, it has been heartening to see a series of economic measures and indicators that have instilled greater optimism. We have been here before, of course, and we don’t want to get carried away, but it is clear that lenders, agents, valuers and conveyancers are feeling the pent up demand for house purchase released more widely across the market. While talk of house price bubbles remains at the forefront of newsprint, the demand patterns are variable and concentrated rather than a national issue. The bigger issue remains one of available property. Certainly, the appetite to lend is there and we are now at levels just 6% less than the 2007-8 peak. This has been fuelled by a sequence of government liquidity schemes to pump cheap or de-risked money into the system. Funding for Lending was designed to give banks more confidence to get back into the market last year. While this has recently been withdrawn for residential property, Help to Buy has delivered the confidence for house builders to finally unlock land banks and get building again. It is nowhere near the levels that we need each year, but the new build stock needle is moving from sub-100K in 2010-11 to a projected 140K by the end of 2013 - but still over 100K a year short of what we need to keep up with household demand. So, housing supply and planning restrictions remain practical barriers to local house price affordability and perhaps 2014 will see greater pressure being exerted on local authorities to free up the planning system in favour of sustainable housing growth. If the UK economy starts to accelerate quarterly growth and unemployment continues to fall, all eyes will be on the impact of interest rates rises and whether this could have dampening effects on demand going forward. Whilst few commentators are predicting rates rises in 2014, you’d be hard pressed to find many analysts now saying they won’t rise within 2 years. The market therefore seems to be piling in to grab stock while money is historically so cheap. My sense is that 2014 will see a continuation of highly regionalised housing market growth, with London and South East continuing to drive national house price growth. However,

12000theReport

there seems little to indicate that such growth will reach out beyond the South East. Sluggish growth or flat-lining in the North of England and Scotland look set to emphasise the risky imbalance of the current market. For the conveyancing industry, further change is inevitable - with a national picture seemingly appearing more attractive again as volumes rise. ABSs focussed initially on personal injury will be taking another look at how to package conveyancing to take advantage of growth. We are certainly seeing more M&A in the market to create more consumer-oriented practices and brands. Business referral and panel channels are sure to continue growing, while small firms handling small conveyancing volumes may continue to review performing this, in the context of PI premiums. Legal due diligence in the property transaction will continue to create the competitive edge. With the strengthening of advice by The Law Society on flood searches, the impact of insurability in flood prone areas and the ever present climatic threat - flooding is never far from the headlines. I predict that as uncertainties continue over insurance cover under the Statement of Principles and what the new Flood Re scheme will protect, this will remain a core financial burden in prone areas that will need guidance ahead of completion. Local authorities will also continue to cut their cloth to meet ever tighter fiscal demands from the Treasury. This comes at a time of increasing workload for land charges teams as conveyancing volumes climb and their resources are spread thinner and must represent a significant risk. We have also seen a substantial reduction in funding support for environmental teams to be able to determine contaminated land. With a 2013 budget of just £2million across the whole of England and Wales, whole tracts of land will go uninvestigated, placing the burden of risk on the purchaser, whether residential or commercial. To safeguard clients and practice reputations, therefore, conveyancers should continue to exercise caution and build environmental searches into their client care recommendations. The ever changing man-made landscape will also require greater search scrutiny too - accelerating volumes of planning applications, energy and transport infrastructure changes will impact neighbourhoods and create uncertainty on capital growth for prospective homebuyers. So, with more transactions promised for a more optimistic year of trading, it is important that conveyancers ensure the highest levels of client care to safeguard effective transactions and §profitable relationships. These are things that we can control: managing a housing bubble, affordability and credit is another matter and best left to the Exchequer.


Property

theReport00013


Private Client

WHY WE SHOULD ALL CONSIDER MAKING A

LASTING POWER OF ATTORNEY As the member country holding the 2013 G8 presidency, the UK hosted the first G8 Dementia Summit as an international effort in tackling the condition. Health ministers from G8 countries were invited to the Summit in London on 11 December 2013 to discuss how efforts to combat dementia could be coordinated effectively. The aim of the summit was to identify and agree a new approach to dementia research, so that greater progress could be made through international cooperation. The Summit led to various commitments being declared, including a pledge by the UK to appoint a global Dementia Innovation Envoy to draw together international expertise to stimulate innovation and to coordinate international efforts to attract new sources of finance. It is estimated that in the UK alone, there are likely to be almost one million people with dementia by the end of 2020. The Alzheimer’s Society has said that “dementia is fast becoming the biggest health and social care challenge of this generation.”

LASTING POWERS OF ATTORNEY The increase in the number of people suffering from dementia means that more and more people are managing the property and financial affairs of those who are losing, or have lost, the necessary capacity to manage their own affairs. No family remains untouched by dementia; we all know, and many care for, relatives or friends with the condition. In England and Wales, solicitors are instructed daily by donors wishing to make a Lasting Power of Attorney (LPA), so that the appropriate arrangements are in place should they go on to lose capacity to manage their own financial affairs. LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used by an attorney. There are two types of LPA you can make; one for Property and Financial Affairs and another for Health and Welfare. LPAs for Property and Financial Affairs can be used following registration, unless you have entered a restriction on the form which says it cannot be used until you have lost the required capacity. However, LPAs for Health and Welfare can only be used when you have lost capacity to make those decisions. LPAs replaced Enduring Powers of Attorney (EPAs), which could be made before 2007. EPAs can still be used following their creation, though must be registered when the donor of the power is becoming, or has become, mentally incapable of handling his or her own affairs. With LPAs now having been available for over 6 years, the number of registered LPAs is continuing to increase, with the Office of the Public Guardian (OPG) estimating they will deal with the registration of approximately 300,000 LPAs in the financial year 2013/14, which is over 50,000 more than in 2012/131.

14000theReport

CREATING A LASTING POWER OF ATTORNEY Making a LPA is fairly straightforward, though it involves completing several forms, one to: • create the LPA • inform certain parties of your intention to register it • apply for registration Many people prefer a solicitor to assist them with the forms, but it is possible to obtain these directly from the OPG and make the application yourself. The OPG launched an online tool in July 2013, which is designed to take users through the application and ensure that it has been completed correctly, or applications can be made on paper. You have to decide who you would like to appoint as your attorney or attorneys, how you would like them to be appointed (jointly, or jointly and severally), and what powers or guidance you would like to give them. You also have to choose a certificate provider (such as your GP, or a solicitor), who must confirm that you have the necessary capacity to create the LPA. Furthermore, you must nominate someone to be informed of the registration of the LPA. If you do not have anyone you wish to nominate, then two certificate providers are required. Although some people may find all the paperwork a little bewildering, advice can be obtained. Making an LPA now gives you the opportunity to choose your attorneys and discuss your wishes with them. If you wish to appoint 1 or 2 children and not appoint others, it gives you the opportunity to discuss this with them and explain your reasons. This may help prevent any future dispute, which can lead to significant expense being incurred.

THE DUTIES OF AN ATTORNEY If you choose to appoint an attorney under a LPA, they must have regard to the Code of Practice published for their guidance. Attorneys have a duty of care in relation to their role, cannot delegate their role, must act in good faith, must keep your affairs confidential, must keep an account of their dealings with your finances, and should keep your money and property separate from their own. Anyone appointing an attorney should ensure that the attorney has read the guidance available to them from the OPG and more importantly, understood it. Acting as an attorney is an important role, which should be treated accordingly. The Senior Judge of the Court of Protection recently said that ignorance of the law was no excuse for an attorney who has acted outside their powers. Some people express concerns about giving powers to others in relation to their finances. However, your attorneys cannot simply do what they like with your money or property. They must comply with their duties and act in your best interests. For example, attorneys have a limited authority to make gifts on your behalf, but are restricted in terms of the size of these and must have regard to your previous gift-giving. Gifts can be made to charities (to which you might have been expected to make


Private Client

such gifts) and to persons related or connected to you on customary occasions (such as birthdays, marriages etc).

of Deputies. Again, the independent Deputy will charge for their services in managing the individual’s financial affairs.

THE IMPLICATIONS OF NOT APPOINTING AN ATTORNEY

As many disputes in the Court of Protection involve family members (often siblings), sadly, time and expense can be wasted on the parties using the dispute to settle other scores. This can divert valuable Court time away from determining what would be in the best interests of the individual lacking capacity, which is the aim of the process.

Many people lose the capacity to manage their property and financial affairs without having appointed an attorney to assist them. This may mean that an application has to be made to the Court of Protection, for a Deputy to be appointed by the Court. A Deputy has similar powers and duties as an attorney. The Deputy may be a relative or friend, or the Court may appoint a professional Deputy, such as a solicitor. However, it does rely on there being someone willing to take on the responsibility. In the absence of a Deputyship, isolated, vulnerable adults could be missed out and left open to abuse. An application for Deputyship requires the completion of a number of forms, along with an assessment of mental capacity from an appropriate expert. The application can take several months to be approved, even if no one contests the application. In the interim, no one has the authority to manage the affairs of the individual lacking capacity, which can mean bills are unpaid, benefits unclaimed and transfers of property are put on hold. The fee for a Deputyship application is £400, which is much more than the registration fee for an LPA of £110 (though the fees can be waived if you are on low income). The current registration time for LPAs with the OPG is 9 weeks, which makes it a much quicker, as well as less expensive process. Although disputes can arise at the time of registration of an LPA, for example, whether the attorney is an appropriate person to be appointed, these disputes are generally easier to resolve than Deputyship disputes. If the registration of the LPA is made when you still have capacity, then you will be able to explain your reasoning for appointing your chosen attorneys. However, with a Deputyship application you may no longer be capable of expressing your wishes of who should act as your Deputy (though if they are able to, the Court will take such wishes into account). You could end up with your affairs being managed by a relative you do not like, or do not trust, or by a professional Deputy who charges for their services. Such charges will be deducted from your funds.

DISPUTES

Changes in society and the increase in more complex family structures may also be creating a growth in family disputes. Disputes between second (or third) spouses and children from former marriages are common, and can involve a power struggle between the parties, who are each concerned about the actions of the other. It is often said that, more generally, society is becoming more litigious, and this may also increase the likelihood of disputes in the Court of Protection. It is important to remember that it is not only the elderly that may need an LPA. We are all vulnerable to becoming ill or experiencing an accident which may prevent us from managing our own financial affairs, even if temporarily. Those of us with dependents reliant on us to provide for them do not want to be left in a position where the mortgage, rent or bills cannot be paid, as no-one has the necessary authority to manage our finances. Making an LPA now can prevent unnecessary problems, stress and expense later on. For further information please contact Rita Bhargava (email: Rita.Bhargava@russell-cooke.co.uk) or visit our website on: www.russell-cooke.co.uk. EMMA SAUNDERS ASSOCIATE SOLICITOR +44 (0)20 8394 6571 Emma.Saunders@russell-cooke.co.uk

This material does not give a full statement of the law. It is intended for guidance only and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke LLP. © Russell-Cooke LLP. January 2014

If a dispute arises in relation to a Deputy appointment, the dispute can go on for several months, if not longer, and substantial legal costs can be incurred. These costs may ultimately be paid from the assets of the individual lacking capacity. Furthermore, if two relatives cannot agree on who can be appointed as a Deputy, the Court will often order the appointment of an independent Deputy, from the Court’s panel

FOOTNOTE 1 Presentation by Allan Eccles, the Public Guardian, to the Four Jurisdictions Conference on 24 October 2013.

theReport00015


Development

EDUCATING YOUNG LAWYERS IN THE COMMUNITY

For eight days in Sonipat, Haryan, north west of New Delhi, more than three hundred lawyers who work in universities and law colleges from around sixty countries, met in the 7th Congress of the Global Alliance for Justice Education. There were several participants from the UK, and our participation included writing and delivering papers, running training workshops, and learning from the other law teachers in the Congress. The most important issue that I learnt about was the role of law schools in delivering free legal services to the poor, in urban and rural areas in every continent. The objective is to train lawyers fit for their future role in society. In most of the countries, including European countries, there is limited free legal aid, sometimes

16000theReport

available as free legal defence in homicide cases through a public defender system, but not available for pursuing legal rights in the civil courts. The Global Alliance for Justice Education (GAJE) is all about legal education for legal rights, and includes a large element of provision where there are gaps. Readers may have heard of “Streetlaw�, a community legal education scheme in which law students engage with community groups or schools and deliver workshops, or mock trials on legal topics. Not only do members of the public learn about their rights, and how to exercise their rights, but also law students improve their research skills, their advocacy as well as their knowledge and understanding.


Development

I went on a field trip to a village where law students from the O P Jindal Global University, our hosts, work with the villagers on legal rights education. It was inspiring to hear of their work. In countries where levels of poverty are extremely high, knowledge of legal rights enables people to move towards equality. A major issue for many contributors to the Congress was how to assist survivors of domestic violence, a crime which is becoming more visible, and has greater levels of reporting, as survivors hear of support they can access. There are enormous hurdles to overcome, particularly where the dominant culture does not question inequality, or violence against women. Will our UK law students be called upon to provide free legal services increasingly as legal aid is cut and withers from lack of resources? I believe the answer is yes. Readers with strong views may like to write to the Editor with their comments. Professor Sara Chandler is a former President of City of Westminster & Holborn Law Society and a member of CWHLS International Sub-committee. She is also President of the Human Rights Commission of the Federation of European Bar Associations. If CWHLS members would like to attend the next FBE session, they may like to visit Barcelona as guests of the Barcelona Bar Association on 7th and 8th February. PROFESSOR SARA CHANDLER, CWHLS

theReport00017


Professional Practice

PREVENTION IS PROTECTION Thanks to the integration of Lawyer Checker, a firm and its conveyancers will now be able to perform a Lawyer Checker check at the click of a button. Pauline Freegard, Business Development Director of OchreSoft explains why Lawyer Checker was such a good fit with their Intelliworks legal workflow product for Conveyancing and Private Client: “Law firms are increasingly concerned about risk; OchreSoft has always built compliance and risk-management into everything we do. Intelliworks makes best practice part of everyday process, to reduce risk and increase compliance. We know that fraud detection and prevention is a high priority for our customers, including the ability to prove compliance through full audit trails. Lawyer Checker is an important part of that integrated approach so we build it into our comprehensive Conveyancing and Private Client legal workflows.”

Major UK wide provider of legal software Intelliworks joins forces with Lawyer Checker in the war against conveyancer fraud. Major UK player, OchreSoft Technologies Ltd, have engaged the services of Lawyer Checker in order to provide the ultimate in best practice to all Conveyancers using their Intelliworks workflow solutions. Used by 160 UK law firms, the software offers effective and low-cost case management for today’s modern law firm. The message being shouted out from the rooftops by Lawyer Checker is that ‘prevention is protection’. Users of the Intelliworks software now have access to the comprehensive set of checks that Lawyer Checker carries out; with its Account and Entity check system giving enhanced due diligence to any law firm who employs its use. Built in the wake of vendor conveyancer fraud, where a growing number of cases have had purchase funds lost to sophisticated criminals, the Lawyer Checker database has been created to demonstrate whether or not an account has had a track record of successful use within conveyancing. The need to perform such a check is becoming increasingly relevant given the changing landscape of the legal sector. In 2012 the SRA issued a warning not to rely on its own list of solicitors “as verification that the firm is genuine” when criminals managed to register themselves on this list in order to gain a further badge of legitimacy in a fake transaction.

18000theReport

With the ammunition of the risk management capabilities Lawyer Checker provides in this battle against fraudsters, law firms and conveyancers can be assured Lawyer Checker will further mitigate the potential risk for a firm’s clients. Prevention is protection in the commercial sense too; it helps reduce the risk of possible professional negligence claims thus limiting the potential for increased PI insurance premiums as well as reputation damage to the individual law firm. Due diligence requires all solicitors and conveyancers to check the firm that they are sending monies to. Checking the roll of solicitors is no longer enough. OchreSoft have recognised this and the need to both reassure the conveyancer themselves and the purchaser who they represent. Lawyer Checker offers peace of mind to both the legal practitioner and the client, whether borrower or lender. Its introduction has been developed to reduce uncertainty in an uncertain era for conveyancers and purchasers alike.


Professional Practice

“IT’S THE ECONOMY, STUPID!” OR IS IT? CHRIS MARSTON, HEAD OF PROFESSIONAL PRACTICES, SME BANKING, LLOYDS BANK

www.lloydsbank.com/solicitors Chris Marston, Head of Professional Practices, SME Banking at Lloyds Bank considers the prospects for law firms in 2014 You may recall the election slogan of Bill Clinton’s successful presidential campaign in 1992, designed to reinforce the US economy as the battleground for that election. Over the past twenty years the phrase has been hijacked by political and business commentators and businesses, including law firms, have used it in recent times to explain their poor performance. With a new year now upon us I’ve taken a look at some recent trends and economic indicators for the UK in 2014.

BUSINESS CONFIDENCE HAS HIT A 20 YEAR HIGH That’s the key finding from the latest Business in Britain report from Lloyds Bank Commercial Banking. This twice yearly report, now in its 22nd year, canvasses the views of 1,500 UK businesses and shows that firms are continuing to grow in confidence, driven by expectations of stronger profits, orders and sales over the next six months. The survey’s key Business Confidence Index tracks businesses’ views of expected sales, orders and profits for the coming six months and presents the overall “balance” of opinion, weighing up the percentage of firms that are positive in outlook against those that are negative. In this latest report, the confidence index has increased by 15 points to 45 per cent, from 30 per cent in the previous survey in July 2013. This is the fourth consecutive increase in the net balance of business confidence and is now just short of the survey high of 46 per cent recorded in January 1994. Companies also remain optimistic about prospects for the UK economy and the overall net balance of firms that are now more confident about the economic outlook is the highest it has been since January 2007. Just under two thirds of businesses (65 per cent) stated that they are currently more optimistic than they were six months ago, while less than a tenth (9 per cent) stated that they are less so. The overall net confidence balance of 56 per cent is a 33 point increase from July 2013, when the net balance was 23 per cent.

SALES, ORDERS AND PROFITS LIKELY TO CONTINUE TO RISE Prospects for the first half of 2014 continue to look positive with expectations for total sales, orders and profits in the next six months – the three key indicators of business confidence – all increasing. The three indices remain well above their respective long-term averages and point to stronger economic growth in the first half of the year.

20000theReport

More than half of businesses (55 per cent) said that they expect their orders to increase during the first half of the year; compared to just over one in 20 (six per cent) that think orders will fall. The resulting 49 per cent overall net balance represents a 12 point increase from July 2013. Six out of ten businesses (60 per cent) stated that they think their sales will increase in the next six months, while just under a tenth (9 per cent) expect a drop, leading to a 51 per cent overall balance. This is a 15 point increase from the second half of last year. The balance of firms anticipating greater scope for increasing prices over the next six months has also increased by ten points to 23 per cent. This is the highest balance since 2008. Firms’ hopes of rising prices may help to underpin their expectations of stronger profits over the next six months. The net balance of firms expecting rising profits increased for the third consecutive period, to 35 per cent and came close to the survey high of 38 per cent seen in 1993.

RENEWED HOPE FOR INVESTMENT AND RECRUITMENT Firms are also becoming more hopeful about recruitment prospects with the fourth consecutive rise in the balance of businesses expecting to hire more staff over the coming six months. A quarter of businesses (27 per cent) said that they will increase staff numbers during the first half of the year and one in ten (10 per cent) said they planned reductions. This results in an overall net balance of 17 per cent expecting to boost staff numbers, which is a rise of five points from July last year and stands at a six year high. At the same time, the balance of companies reporting challenges in the recruitment of skilled workers continues its post-crisis recovery with a six point increase to 32 per cent. The recent increase suggests a potential strain in the market for skilled labour which could put pressure on pay growth, although the index is still well below its 1997-2007 readings which averaged 47 per cent. Expected capital expenditure is also on an ongoing upswing. The report shows that just over a quarter of businesses (27 per cent) expect to increase their capital expenditure over the next six months while just one in ten (11 per cent) are planning cutbacks. This results in a net balance of 16 per cent planning to ramp up investment in the first half of the year, which is an increase of ten points from July last year and the highest level witnessed since 1994. The net balance has been in positive territory for three consecutive survey periods, for the first time since 2006.


Professional Practice

UK DEMAND AND CASHFLOW ARE LESS OF A CONCERN

2007, it was still nearly 30% lower than the annual average between 2003 and 2007 (370,800).

In light of growing hopes for exports, weak UK demand is no longer such a worry for businesses. A third of businesses (31 per cent) have concerns about domestic markets, which is a significant drop from July 2013 when nearly half (45 per cent) of businesses stated it was the biggest challenge they faced.

Mortgage affordability has improved in recent years, aided by record low mortgage rates. There has also been an increase in the proportion of areas that are affordable for FTBs since 2007.

Similarly, cashflow is now much less of concern for majority of British businesses. Eight out of ten (81 per cent) businesses stated that they are not currently experiencing cashflow problems - a twelve point increase from 69 per cent in July 2013.

Close to half (45%) of all FTB purchases in 2013 were below the £125,000 Stamp Duty threshold. A similar proportion of properties bought by FTBs were priced between £125,000 and £250,000.

ALL COMPANY SIZES SET TO DO WELL

Martin Ellis, Housing Economist, commented: “Low interest rates, improvements in consumer confidence and Government schemes, such as Help to Buy, all appear to have contributed to the rise in the number of first-time buyers.”

Business confidence increased particularly strongly for companies with a turnover between £1-£15m and for those turning over more than £15m. The net confidence balance for these firms is up eighteen and nineteen points respectively leaving both at 49 per cent. The overall net confidence balance for firms with a turnover below £1m is 34 per cent which is an increase of five points from the previous survey.

CONFIDENCE CONTINUES TO IMPROVE ACROSS ALL SECTORS IN PARTICULAR THE RETAIL AND WHOLESALE SECTOR Business confidence rose in all sectors, for the third consecutive survey. All sectors reported double digit increases, with the exception of ‘business and other services’, which saw an eight point rise. The retail and wholesale sectors reported the largest increase in confidence – a 20 point jump to 44 per cent; followed by manufacturing, up by 19 points to 57 per cent; and transport and communication which rose 18 points to 46 per cent.

BUSINESS CONFIDENCE IMPROVES ACROSS THE UK Business confidence increased in all regions most notably in the North and West Midlands where the balances increased by 21 and 18 points respectively. The East Midlands & East of England saw the smallest improvement of 10 points.

LARGEST ANNUAL INCREASE IN FIRST-TIME BUYERS SINCE 2001 First-time buyers (FTBs) are on the rise with 2013 witnessing the biggest annual increase since 2001. The recently published annual Halifax First-Time Buyer Review shows the number of FTBs grew by an estimated 22% in the year - the second consecutive annual increase following a 13% rise in 2012. There were an estimated 265,000 FTBs in 2013, up from 218,000 in 2012. While this was the highest annual total since

“However, many potential first-time buyers continue to find raising the necessary deposit a problem. The Help to Buy mortgage guarantee scheme should enable more buyers to get on to the property ladder with smaller deposits. Continuing pressure on household finances during the next 12 months will no doubt remain a constraint.”

SO THE ECONOMY’S FINE, IS IT? The past couple of years have seen unprecedented regulatory and competitive changes to the legal profession, and the economic backdrop has been challenging for many firms. However, the ‘new normal’ following the Legal Services Act and LASPO is now established and firms should by now be equipped for it. Time will tell whether we’re seeing the beginning of a sustainable recovery, but it does now seem that we’re seeing improvements and that a number of forward-looking indicators are favourable. Solicitors may be operating this year in a UK economy that is looking brighter than at any time since 2007. Success for law firms in 2014 will be determined by the way they address the business issues, and that means keeping the client at the heart of their business, managing risk effectively, embracing IT, developing an internal referrals culture and finding more efficient ways of working. Managing lock-up and cashflow will be critical because experience tells us that professionals can face cashflow pressures in an economic recovery, as they get busier and invest more in WIP and debtors. Our specialist relationship managers are working with their solicitor customers to help them take the right steps in order to equip themselves to be winners over the next few years.

theReport00021


Professional Practice

LAW FIRMS OPTIMISTIC DESPITE INCREASED COMPETITION TAX CHANGES NEED URGENT ATTENTION Rapidly approaching is a major overhaul in the tax rules to hit partnerships from 6 April 2014. This will potentially add significantly to costs for firms and individuals alike. Angela explained: “We expect that many partnerships will be affected by the rule changes, particularly larger partnerships providing professional services and especially those which include a service company, corporate member or salaried partners. Although the full details of the new rules have yet to be announced, firms must consider their options and work out a plan. The new legislation will affect each firm differently. This matter is now very urgent as it is just weeks before the new rules apply.”

Law firms are finding the business environment increasingly competitive with pressure on fees a major issue, even though optimism is at its highest since 2007. A survey of over 100 law firms by Smith & Williamson, the accountancy and investment management group, reveals that eight in ten firms are confident about the year ahead, compared to just six in ten last year. Firms with 25 partners or less appear the most upbeat, according to the research. “Signs of renewed growth in the South East economy and UK generally look to be the primary factors behind these results, fuelling hopes that a more solid recovery is on the way,” said Angela Kellock, tax partner at the Guildford office of Smith & Williamson. However, the environment has become more competitive in the last 12 months and pressure on fees is cited as the greatest challenge. Furthermore, almost nine in every 10 respondents expect to see greater competition as a result of the Legal Services Act. In response, firms are adopting a range of strategies: many firms (39%) have set up a new service line in the last year, while 24% expect to do so in the next 12 months. These approaches, in addition to the high number of lateral hires, suggests a focus on cross-selling services to existing clients and a need for an increasing level of diversification. Among other measures taken by respondent firms in the past year, 18% have sub-let office space, 15% have de-equitised partners, 14% have opened a new office in the UK, 12% have opened an overseas office and 11% have centralised functions.

22000theReport

“Even smaller partnerships need to check that they are not caught as the penalties could be severe if they are affected but take no action.” Smith & Williamson is running a seminar on ‘The changing world of Professional Partnerships’ in Guildford at 8am on Thursday 13 March which will qualify for 1½ hours of CPD points. For further information please contact Janice Clay: janice.clay@smith.williamson.co.uk or telephone 01483 407113. Further details about the survey is included in our recent Professional Practices publication which can be found at the following link: https://www.smith.williamson.co.uk/uploads/publications/ Professional-practices-Winter-13-14.pdf


Professional Practice

AT MIDDLE TEMPLE…

‘JUDICIAL INDEPENDENCE’

A LECTURE BY STEPHEN BREYER OF THE SUPREME COURT OF THE UNITED STATES BUSH V. GORE Take, for example, the case of Bush v. Gore. That’s Al Gore and George Bush. Remember them? It was of course George Bush who eventually became President of the United States, but that particular election in 2000 was a close-run thing. You may also remember the issue of the ‘hanging chads’ spewed out by presumably faulty voting machines which imposed a giant question mark over the final result of the election. The split among the American electorate was fifty-fifty and it was about a month before the great American public, as well as the world, knew who exactly had been elected president. With such inconclusive results, apparently unprecedented in American history, it became the responsibility of the U.S. Supreme Court to make the final decision – and indeed they did – and the rest is history. Obviously and inevitably, as Justice Breyer reminded us, the decision was unpopular with half the U.S. population. But as he pointed out, ‘there was no rioting in the streets.’ The rule of law – and public respect for the rule of law – prevailed. In such a situation, he said, ‘three hundred and eleven million Americans have to be convinced of the value of following the judges’ decisions, even if unpopular.’

DEFIANT

STEPHEN BREYER

The weather outside was frightful and there was a tube strike. But even rough winds of almost gale force and non-existent underground transport couldn’t deter a determined audience of assorted lawyers – and the occasional journalist – from crowding Middle Temple Hall almost to capacity to hear The Honorable Justice Breyer, Associate Justice of the Supreme Court of the United States deliver the annual Ann Ebsworth Memorial Lecture. And what a lecture it was. Sponsored by the South Eastern Circuit and introduced by Sarah Forshaw QC, the Circuit leader, the subject was ‘Judicial Independence’, with particular emphasis on the rule of law. With Sarah Forshaw QC his engagingly informal, yet nononsense manner, Justice Breyer revealed, among other things, any number of historically significant anecdotes and insights into pivotal events, specific cases and judicial decisions which influenced the course of American history, not to mention world opinion.

24000theReport

Going further back into relatively recent history, Justice Breyer touched on the issue of racial segregation in the southern United States, declared ‘unconstitutional’ by the Supreme Court in 1954, but with no immediate result. ‘Nothing happened,’ he said, until the attempt to desegregate schools in Arkansas in 1957, which floundered in the face of defiant, almost fanatical opposition led by the then state governor Faubus. ‘I control the State Police,’ he declared – and according to any number of reports, ‘black kids walked away in front of the Press.’ All of which led Dwight Eisenhower, the President at the time, to declare – equally defiantly – that ‘we have to do it’ and sent paratroops from the 101st Airborne to escort black children into the previously all white school. The schools were then shut and for a time, nobody got educated, until eventually the schools were re-opened under a new Board of Education which collectively ruled, ‘back to school.’

‘THOSE PARATROOPERS’ ‘Something had been started by those paratroopers,’ commented Justice Breyer on this historic chain of events initiated by the Supreme Court, ‘The result,’ he added, ‘was an integrated society imperfect to this day’…accomplished by the judges, yes ‘and by other people.’ If anything, these events and their results do prove in part, that societal change really can be brought about by legislation, even though the actual implementation of it may prove appallingly tough.


Professional Practice

In offering such illuminating and illustrative glimpses into American judicial history, Justice Breyer spoke with the authority of erudition and experience. Born in 1938 in San Francisco, he received a BA in philosophy from Stanford University, a BA from Magdalen College, Oxford as a Marshall Scholar and a Bachelor of Laws (LL.B) from Harvard Law School. In 1967 he became a law professor and lecturer at Harvard Law School, specializing in administrative law. Before his nomination to the Supreme Court, he served in a number of roles, including assistant to the United States Assistant Attorney General for Antitrust and interestingly, as special prosecutor of the Watergate Special Prosecution Force in the early ‘70s. While still teaching at Harvard, he also served as a professor at Harvard’s Kennedy School of Government. His appointment to the Supreme Court by Bill Clinton followed the retirement of Harry Blackmun in 1994. His biographical details reveal a number of other academic achievements and also that he was the second longest serving junior justice in the history of the Supreme Court. Appointed by a Democratic president, Justice Breyer’s approach to law has been described in such terms as ‘liberal’ and ‘pragmatic’. He is a judge who regards the United States constitution as ‘a beautiful thing’, but certainly a thing that ideally should be scrutinized as to its purpose and its consequences. One of the Court’s most controversial decisions has been on the issue of abortion rights on which Justice Breyer has consistently voted in favour. He does not look with favour, however, on the proliferation of guns, or on capital punishment.

DAME ANN EBSWORTH

Dame Ann Ebsworth

Justice Breyer’s lecture was a fitting tribute by the South Eastern Circuit to Dame Ann Ebsworth, who, had she lived, would have approved of its spirit and content. Dame Ann Marian Ebsworth was a distinguished barrister and judge who in 1992, became the sixth female High Court Judge and the first to be assigned to the Queen’s Bench Division. She also taught advocacy at Gray’s Inn and for the South Eastern Circuit and additionally, at an annual course at Keble College Oxford.

It is worth checking out the South Eastern Circuit’s website for information on other forthcoming lectures and events to come and if you are a barrister in the South East, you might consider joining the Circuit. Also, you won’t forget, will you – that next year is the 800th anniversary of Magna Carta, as Justice Breyer and no doubt the entire American Bar Association would amiably but firmly remind you.

ELIZABETH ROBSON TAYLOR PRACTICE MANAGER RICHMOND GREEN CHAMBERS

AN ELECTED JUDICIARY? Parrying pointed questions from the floor with ease, Justice Breyer gave no specifics on the matter of judicial independence. ‘How do you reconcile the principle of judicial independence with an elected judiciary?’ he was asked. ‘I can’t,’ was his terse two-word reply, much to the amusement of most of his audience, who shortly afterward were reminded of the significance of Magna Carta, the 800th anniversary of which is coming up in 2015. ‘Those barons at Runnymede really started something,’ he might have said, but didn’t. Instead he quoted from Kipling’s poem, ‘At Runnymede’. ‘Magna Carta’, he then remarked, was the first ever attack on the ‘Right Divine’, that is the divine right of kings to, as it were, rule the roost with the authority of the Divinity himself. It took a long time from the thirteenth century onward – and considerable blood and tears to consign this annoying concept to history (we hope) to the point where we at least have a constitutional monarchy which the world, even the Americans, might envy.

theReport00025


Book Reviews

LAW FIRM STRATEGIES FOR THE 21ST CENTURY STRATEGIES FOR SUCCESS

THE BAR HANDBOOK 2013-14

how all this may be achieved – across a range of jurisdictions – is a particularly valuable aspect of this book.

Consulting Editor Christoph H. Vaagt On behalf of the International Bar Association ISBN: 978 1 909416 16 1 GLOBE LAW AND BUSINESS www.globelawandbusiness.com

GROWTH STRATEGIES FOR LAW FIRMS GOING GLOBAL: AVOIDING THE ‘SMOKE AND MIRRORS’ APPROACH An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers If you are a lawyer tasked with the management of your firm – or you’re contemplating doing so – you’ll find the wealth of insights contained in this recent publication from Globe Law and Business both illuminating and practical, particularly if you’re looking to expand in challenging international markets. Here at your disposal are over 250 pages of rather high powered advice and consultancy from over two dozen expert international contributors, each discussing issues of strategy and good governance from a specific viewpoint, but focusing overall on building profitability as the result of making the right decisions rather than the wrong ones. The general thrust of the book is that law firm strategy must be focused not just on the bottom line, but on a value-based, ethics-based, consensus-based and client-centered ethos. The detail of just

26000theReport

In helping law firm managers cope with the challenges and complexities of building and consolidating a law practice in a range of international markets, this volume is a useful guide, drawing as it does on the specific experience of a broad range of practitioners and consultants who have been there and done that. Consulting editor, Christoph Vaagt, for example, a specialist in law firm strategy processes, is a former chairman of the law firm management section of the German Bar Association. Now a frequent speaker for the International Bar Association, he expresses the hope that this book will ‘help partners of law firms understand the challenges their firms confront and… start a process which may address these to the benefit of each member of the firm and of the legal community at large.’ A slightly more light hearted, but still deadly serious approach is taken by several of the other contributors; note in particular the article by Robert Bata of WarwickPlace Legal LLC entitled ‘How to screw up your international expansion: a 15-step Guide’. A more succinct summary of the pitfalls and pratfalls besetting certain law firms looking to expand abroad you could scarcely hope to find; mentioning no names of course. Also note Lisa R Smith’s article on ‘How to merge: Lessons from 20 years of law firm mergers’. In all, the book emphasizes the market and resource side of law firm management, pointing out new ways to look at, think about, and carry out the right strategies with a view to staying a step ahead of competitors. Certainly this is a book that should be in every law firm manager’s library.

By Nicholas Bacon QC and Simon Garrod ISBN: 978 1 4057 7853 4 LEXISNEXIS www.lexisnexis.co.uk

THE NEW BAR HANDBOOK HAS ARRIVED WITH MANY CHANGES! AND HERE’S WHY EVERY BARRISTER SHOULD HAVE ONE IN CHAMBERS An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Consider the life of the beleaguered barrister today. So much change, so much regulation – so little time to absorb it all – and therefore so many traps for the unwary or the dilatory who may not, don’t, or can’t, keep up with all those complex current developments that impact on our profession in 2014. But practically speaking – how does one keep up – or even cope, bearing in mind the pressures and stress of being a barrister? Answer: buy ‘The Bar Handbook 2013-14’ which is now available in a brand new edition from LexisNexis as important changes are affecting the profession. We do not speak in jest. This invaluable reference book covers every conceivable issue that pertains to your professional life as a barrister-at-law. The wealth of new material, for example, includes the amended Code of Conduct with updated guidance relating to the Code, together with current and important advice regarding taxation. In the words of Baroness Ruth Deech, Chairman of the Bar Standards Board, the new and revised Code of Conduct will


Book Reviews

TRANSNATIONAL LAW OF SPORTS

incorporate ‘some of the most important changes to affect the Bar in a generation’. The Handbook, she adds, ‘remains the central repository of guidance and best practice for barristers and anyone interested in understanding how the Bar works’. Even a cursory examination of the seventeen pages of the Table of Contents, as well as the detailed index at the back, will reveal the Handbook’s astounding scope. In addition to the Code of Conduct, there are sections pertaining to qualifying for the Bar and numerous chapters on the actual practice of a barrister, including professional obligations, charging arrangements and being paid – and what to do when payment does not seem to be forthcoming. It is important to note, too, the very useful sections on sole practitioners and on how to become a QC for those who aspire to that level – and much, much more. Those conducting further research on what the everyday barrister of today does will appreciate the tables of statutes, statutory instruments and cases, as well as, of course, understanding the Bar Code of Conduct itself which Bar School has always and rightly placed much emphasis on with its training. Here then, in a single volume, you have over 1,700 pages of practical and eminently readable guidance for the contemporary and enlightened practitioner. We would go so far as to say that every set of chambers, indeed every barrister, should have this Handbook to hand. We are also very tempted to urge the Bar Council to include a copy of this Handbook with the yearly practising certificate fee because it is as essential for a barrister-at-law to possess a copy of the current “Bar Handbook” to go with the mandatory practising certificate which has been brought in. Such a measure would ensure that all members of the Independent Bar have the most recent version available to them as part of their professional obligations so there is no misunderstanding of what our heavily regulated profession needs to know in over 1,700 pages of what is, actually, very interesting reading for us… After all, ignorance of the regulations and lack of compliance is no excuse in 2014!

Then there is the legally charged tug of war between amateurs and professionals... and between national law and the decisions made – often unilaterally – by international sports federations. Other emerging issues include the increasingly important role of government in sports.

Edited by James A.R. Nafziger ISBN: 978 0 85793 744 5 International Law 4 EDWARD ELGAR PUBLISHING LTD www.e-elgar.com

LEGAL ISSUES IN INTERNATIONAL SPORTS COMPETITION AND MANAGEMENT: A COMPENDIUM OF LEADING RESEARCH An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Sports lawyers, or any practitioner involved in international sport and the legal issues surrounding it should acquire a copy of this reference book recently published by Edward Elgar. Edited by James A.R. Nafziger, ‘Transnational Law of Sports’ is part of Elgar’s major new International Law series, the purpose of which is to bring together the most important papers and scholarly research in this continually changing field. Nurtured by major international sporting events, sports have gone global – the modern Olympics being an obvious example. As the editor reminds us, sports “are facilitated by communications technology, fuelled by high-profile professional athletes and commercial interests and challenged by difficult problems such as the doping of athletes”. In order of importance, the prevention and control of doping is certainly top of the list of legal issues, followed by commercial marketing and corporate involvement as a close second – commercial and corporate lawyers take note.

All these and related aspects of sports participation and management are covered or referred to in this book, which is actually a compendium of research, recent and current, on this high profile and often controversial area of law. The book places at your disposal, no less than thirty-four scholarly articles and research papers on international sports law, from almost as many international scholarly publications, so you don’t have to look them up yourself. Very handy and time saving, we would say. The articles are grouped logically under five divisions ranging from the origins of sports law, to ethical-legal issues and dispute resolution. Interestingly, the ethical-legal category includes not merely doping and corruption, but, would you believe, ambush marketing, which has certainly concentrated the minds of those involved in the Wimbledon tournament of late and here we refer to only one example. Like so many other issues linked to sport, or specific sporting events, it has generated not a little controversy. “Let the free markets rule,” say some, with others claiming that one company should not be advertising its products or services at an event sponsored by another company, often a competitor. And thus the debate rages on. As the book tends to centre on the Olympic movement... the European Union... and the sports models generated in Europe and North America, the result is a quite fascinating and useful work of reference which should lend authority to the arguments of anyone professionally involved in the legal aspects of international sport, from students and academics to specialist lawyers. Researchers should therefore note that the book is a treasure trove of meticulous footnoting and bibliographical references for all interested in the detail of the modern law of sports.

theReport00027


Sub-committee Reports

PROFESSIONAL MATTERS SUB-COMMITTEE Much of our time has been taken up in considering consultation papers from the Solicitors Regulation Authority (SRA) and the Legal Services Board (LSB). We responded to the LSB’s consultation paper “Lay Chairs for Front Line Legal Regulators”, which suggested that lay chairs (which are already permitted) should be compulsory for all frontline regulators of the legal profession. We could see no justification for this restriction on choice. As we stated: “Future circumstances cannot be foreseen. The balance of a particular board of an AAR (Applicable Approved Regulator) or the particular issues facing it may make it desirable to appoint a lawyer as chair. Alternatively a person of outstanding merit might emerge who happens to be a lawyer. (The lawyer need not necessarily be from the particular branch of the profession to be regulated. It may for instance be thought desirable at some point to appoint a solicitor as chair of the Bar Standards Board, and similar possibilities may arise.)” As we have commented before, the LSB has its own preconceived idea of how the legal profession should be organised. It appears to wish to do away with the idea of a legal profession and regulate providers of legal services by what they do. We have pointed out that this approach will inevitably leave gaps in regulation to the detriment of consumers. The Consultation stated that “almost four years’ experience of overseeing regulation… has shown that the approved regulators are tied still too closely to the individual branches of the profession that they oversee”. No evidence is provided for this assertion although it is crucial to the case for change advanced by the LSB. The fact that other Approved Regulators do not always agree with the LSB does not mean that they are wrong or motivated by the need to defend the interests of those they regulate.

Although we were unable to meet in December this has not meant that we have been idle. One of our members has produced an excellent and robust draft response to the SRA’s worrying proposal to massively increase its fining powers. In our view this will completely undermine the existing balance of powers between the SRA and the Solicitors’ Disciplinary Tribunal (SDT). The Legal Services Act gave the SRA a limited power to fine up to £2,000 but a power to the SDT to fine without limit. The intention of Parliament was clearly to permit the SRA to deal with “minor” offences but to leave a majority of offences to be heard before the SDT. Multiplying the SRA’s fining powers by 5, 25 or even 50 times the figure originally set by Parliament can hardly be accepted as Parliament’s intention, notwithstanding Section 44D(10) of the Solicitors Act. In our opinion any increase in fining power must bear some close relationship to the figure originally specified by Parliament. Use of Section 44D (10) as proposed by the SRA seems to us to be a clear misuse of its power. We shall be discussing this at our January meeting, with a view to submitting the response before the deadline of 7th February. Because of the importance of the SRA in all our lives, our new President, Susanna Heley has opened a dialogue with it. We hope that this will lead to regular meetings with the appropriate people there with a view to exchanging views on matters of concern to our members. If members have views which they would like us to consider when responding to these consultations (or if they have other issues they would like us to consider – which may be issues they have encountered in practice) could they please let me know (aylmer.julian@btinternet.com). JULIAN AYLMER

JUNIOR LAWYERS’ DIVISION The JLD had an open meeting on 14th November 2013, when prospective members were invited to ask questions of those currently involved in organising JLD events. We had a good turnout and a lot of interest.

Anyone who is keen to get involved and who was unable to make the open meeting, please let Susanna Heley (Susanna.Heley@rlb-law.com) or me (a.ghoorbin@nabarro.com) know. AVNISH GHOORBIN

LAW REFORM SUB-COMMITTEE

INTERNATIONAL SUB-COMMITTEE

At the time of going to press there is nothing to report from the

Please read the article written by Professor Sara Chandler on

Law Reform Sub-committee.

pages 16-17.

ARTHUR WEIR

28000theReport


Sub-committee Reports

LAND LAW AND CONVEYANCING SUB-COMMITTEE At the final meeting of 2013 we discussed and considered the following: 1. Community Infrastructure Levy (“CIL”) The government proposes to introduce changes to the CIL regime its initial objective being to bring these in by the end of January 2014. A number of the proposals alleviate identified burdens such as the danger of a double charge and others modify the current regulations and need to be taken on board. 2. CRAR The long promised reform of distress has been enacted with effect from 6th April 2014. It will be limited to commercial property and available only for rent (plus VAT if applicable and interest on arrears) and therefore not for other financial liabilities even if reserved as rent. More importantly it is subject to the tenant being given seven clear days’ notice before exercise which may in many cases reduce its effectiveness. 3. The Law Society Property Portal This plan to “revolutionise residential conveyancing by handling transactions online” is expected to go live in 2014 and will “streamline the process, improve communications between parties, save costs and time and improve risk management”. Following the abortive and expensive efforts of the Land Registry to introduce a similar system and given the difficulties regarding electronic signatures the profession will hold its breath. 4. CML Launch of Lender Exchange The introduction of this generally from the CML and individually by specific lenders was noted.

5. Proposals to Digitise Fully Lasting Powers of Attorney The Law Society’s reaction to this proposal is to the effect that “extreme caution must be exercised in applying a digitisation initiative to a group of people who are most vulnerable” and that “it is essential to retain the safeguard of physical signatures to prevent potential problems of abuse”. It is perhaps strange that having complicated the procedure by replacing Enduring Powers with Lasting Powers justified as being appropriate to provide greater security to donors it should now be proposed to eliminate the requirement for a written witness procedure. 6. RICS Proposed Update of Its Service Charge Residential Management Code It is anticipated that this will be presented to government in early 2014. While compliance is not obligatory it is persuasive reflecting the provisions of section 87(7) of the Law Reform Housing and Urban Development Act 1993. 7. Property Litigation Association Law Reform Committee Proposed Amendments to the Landlord and Tenant (Covenants) Act 1995 Reflecting the harshest commercial consequences of the K/S Victoria decision as affecting inter-company transactions these propose to clarify the position regarding continuing guarantees including assignments from tenant one to its guarantor. ADAM MABERLY

EDUCATION AND TRAINING SUB-COMMITTEE POST-LETR DEVELOPMENTS As reported in the Winter issue of The Report, the Education & Training Sub-committee arranged a symposium for members on 20th January, 2014, kindly hosted by Farrer & Co LLP, to hear the SRA’s Director of Education and Training, Julie Brannan, outline the SRA’s proposals for reform of legal education and training. These are set out in the SRA’s Policy Statement published in November 2013: http://www.sra.org.uk/sra/policy/training-fortomorrow/resources/policy-statement.page Ms Brannan proved to be very willing to engage with members and, consequently, there was a very productive debate on issues such as the competencies required of solicitors (to inform the SRA’s work in producing a set of competencies for qualification) and how the CPD regime could be improved. The SRA is currently consulting on its proposed ‘bonfire of the Training Regulations’ by way of its consultation paper, “Training for Tomorrow – Regulation Review”, for which the deadline for responses is 25th February, 2014. The consultation paper can be found at: http://www.sra.org.uk/sra/consultations/education-trainingregulations.page The SRA will be launching a consultation on proposals for the CPD regime later in 2014 and, at the same time, is starting work on developing a competence framework for consultation. The Sub-committee will keep members informed of these developments through The Report and e-Report.

November: one on the Property Aspects of the Finance Act, which was given by Patrick Soares, Gray’s Inn Tax Chambers, and the other a Money Laundering Regulations Update by James Ramsden. Both were very informative – the MLR Update particularly sobering it has to be said! Then, in January, we were particularly fortunate to have Stuart Sime, Director of the BPTC at City Law School and Editor of Blackstone’s Civil Practice and Co-author of Blackstone’s Guide to the Civil Justice Reforms 2013, talk about the effectiveness of the Jackson Reforms to date and, in particular, the recent “Plebgate” decision of the Court of Appeal. We are very grateful to all our speakers for giving their time to us and sharing their knowledge and expertise so generously. Speaking of generosity, the Sub-committee is very grateful to Wedlake Bell, which has very kindly agreed to be the new venue for the Society’s lectures in 2014, Nabarro Nathanson no longer being able to do so. The programme of lectures for the rest of 2014 is in the process of being set and will be announced to members through the e-Report and by e-mail to members. Any suggestions from members for topics for lectures are encouraged and welcomed by the Sub-committee.

SUB-COMMITTEE VACANCIES The Sub-committee has two vacancies for members from firms or in-house legal departments who are either involved in or interested in training. Meetings tend to be quarterly and usually take place on a Monday at 6.00pm. If you are interested or would like more information, please contact the Chair.

LECTURE PROGRAMME Due to unexpected circumstances we held two lectures in

MELISSA HARDEE

theReport00029


Charity Support

WELCOME TO A VERY SPECIAL PARTNERSHIP… WELCOME COTTAGES AND DOGS TRUST The UK’s leading canine charity has been working with Welcome for 10 years now and in that time the partnership has generated donations of over £500,000.00! For every booking made through the partnership Welcome Cottages donate 10% of the property rental to Dogs Trust. That’s an average of £40 for every booking made – money that makes a vital difference to the future of all Dogs Trust dogs across the UK. Anyone can book through the scheme and if you visit the website you can discover thousands of wonderful holiday properties all over the UK, France and Ireland that are just ready and waiting for you and your dog. See hand-picked thatched cottages, farmhouses and lodges and many more unique properties all of which are dog friendly. What’s more, the selection is graded to the exacting standards of VisitEngland who ensure your holiday home is as good as its picture looks. To see the full selection of cottages and book securely online, visit www.dogstrust-cottages.co.uk where you can see live availability and lots of images. Alternatively, call the friendly booking team on 0845 604 3933 (lines are open 7 days a week). Finally, if you would like to order a brochure please call 0845 268 7000. Happy holiday searching!

30000theReport


theReport  

Journal of The City of Westminster and Holborn Law Society - Issue 84 - Spring 2014

Read more
Read more
Similar to
Popular now
Just for you