Bill of Middlesex November 2014

Winter 2014

The BILL of

Middlesex Official magazine of the Middlesex Law Society

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introduction

PUBLISHER Ian Fletcher Benham Publishing Limited 3tc House, 16 Crosby Road North, Crosby, Liverpool L22 0NY Tel: 0151 236 4141 Facsimile: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com

Contents 5 22

ADVERTISING AND FEATURES EDITOR Anna Woodhams DESIGN AND PRODUCTION MANAGER Neil Lloyd ACCOUNTS DIRECTOR Joanne Casey MEDIA No. 1359 EDITOR Darrell Webb PUBLISHED November 2014 – © Bill of Middlesex - 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 Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press.

7 8

Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

28

DISCLAIMER The Middlesex Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation.

32

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 member 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.

COVER INFORMATION Visitors enjoying the snow in the garden at Ham House, Richmond-upon-Thames. © National Trust Images.

Copy Deadlines 2015 Spring Issue Summer Issue Autumn Issue Winter Issue

23rd January 21st April 23rd July 23rd October

Anyone wishing to advertise or submit editorial for publication in the Bill of Middlesex please contact Anna Woodhams, before copy deadline.

Email: anna@benhampublishing.com Tel: 0151 236 4141

14 34 5

INTRODUCTION

22 NEWS

6

LOCAL NEWS

26 PRACTICE MANAGEMENT

12 PROFESSIONAL ISSUES

28 LEGACIES

16 EXPERT WITNESS

32 FILM

20 PROPERTY

34 MANAGEMENT The Bill of Middlesex 3

officers COMMITTEE MEMBERS

OFFICERS FOR 2014/2015

Immediate Past President:

R Garrod, J A S Nicholls, R C Politeyan, J Aylett,

DARRELL WEBB

K Goodacre, H J B Cockshutt, W Gillham, L Lane Heardman,

Bolt Burdon Solicitors

D Grove, L A Darke, C Beety, Mrs L E Vickers, H Hodge,

Providence House, Providence Place, Islington N1 0NT

E G B Taylor, A A M Wheatley, A H Kurtz, M J S Doran,

(020 7288 4795) (DX 122237 Upper Islington) e-mail: darrellwebb@boltburdon.co.uk

President: Alexis Ash of Iliffes Booth Bennett Solicitors

Fort & Co. Solicitors

Capital Court, 30 Windsor Street, Uxbridge UB8 1AB

Saunders House, 52-53 The Mall, Ealing W5 3TA

ALAN WILLIAMS 59 St Marys Road, Ealing W5 5RG (07973 622312)

Mrs A Taylor, Mrs N Desor, Ms M Hutchinson, M Guyer, R S Drepaul, A Sriharan, Ms M Fernandes A Darlington, S Chhokar, Ms M Crowley,

Sundeep Bhatia of Beaumonde Law Practice

Professor M Davies, S Hobbs, Mrs R Sriharan, Mrs S Scott

Evans House, 107 Marsh Road, Pinner HA5 5PA

Hunt, D Webb.

(0220 8868 1614) e-mail: sundeep.bhatia@beaumonde-law.co.uk

Nirmala Chandrasena of Chands Solicitors

(020 8933 8332) (DX 48001 Rayners Lane)

Vickers & Co.

e-mail: n.chandrasena@btinternet.com

2015 19 January 16 February

183 Uxbridge Road, Ealing W13 9AA e-mail: mguyer@vickers-solicitors.co.uk

COMMITTEE MEETINGS

145 Cannonbury Avenue, Pinner, Middx HA5 1TR

MAURICE GUYER

(020 8579 2559) (DX 5104 Ealing)

W J C Berry, AS Atchison, L M Oliver, S W Booth, D D P Debidin, R E J Hansom, E H Lock,

e-mail: alexis.ash@ibblaw.co.uk

e-mail: creativewit@tiscali.co.uk Honorary Secretary

S B Hammett, Miss F A Shakespear, HHJ P E Copley,

(08456 381 381) (DX 45105 Uxbridge)

e-mail: gk@fortsolicitors.com Vice Presidents:

H B Matthissen, G Parkinson, HHJ R D Connor, A Bates, J J Copeman-Hill, D B Kennett-Brown, A M Harvey, H R Hodge, G R Stephenson, B S Regler,

GURMEET KHARAUD

(01753 691224) (DX 5119 Ealing)

PAST PRESIDENTS

Professor Malcolm Davies

Meetings start at 6.30pm and will be held at Walpole House, UWL offices in Bond Street, Ealing W5. Room 209.

Head of Ealing Law School University of West London

Honorary Treasurer: LAURA VIRCAN Desor & Co.

St. Marys Road, Ealing W 5RF (020 8231 2226) e-mail: malcolm.davies@tvu.ac.uk

PAST PRESIDENT'S DINNER

Hardeep Dhillon of Desor & Co,

The Polish Club, South Kensington on 30 January 2015.

768 Uxbridge Road, Hayes, UB4 0RU (020 8569 0708) (DX 44657 Hayes 1 Middlesex) e-mail: laura@desorandco.co.uk

768 Uxbridge Road, Hayes, UB4 0RU (020 8569 0708) (DX 44657 Hayes 1 Middlesex)

Honorary Social Secretary:

e-mail: hardeep@desorandco.co.uk

ALAN WILLIAMS 59 St Marys Road, Ealing W5 5RG

Stephen Hodgson

(07973 622312)

Lecturer in Law, Ealing Law School

e-mail: creativewit@tiscali.co.uk

University of West London St Marys Road, Ealing W5 5RF

Honorary Membership Secretary: SUSAN SCOTT-HUNT

(020 8411 6019) e-mail: s.scott-hunt@mdx.ac.uk

Wednesday 18 March 2015

PARLIAMENTARY LIAISON

(020 8231 2406) e-mail: stephen.hodgson@uwl.ac.uk

Principal Lecturer in Law, Middlesex University The Burroughs, Hendon NW4 4BT

AGM

Michael Garson

Maralyn Hutchinson of Kagan Moss 22 The Causeway, Teddington, Middx TW11 0HF (020 8977 6633) (DX 35250 Teddington)

Council Members for the Middlesex Area:

e-mail: maralyn.hutchinson@kaganmoss.co.uk

Central & South Middlesex Michael Garson

Fahmy Mohamed of Vincent Solicitors

Kagan Moss

11-13 South Road, Southall, UB1 1SU

22 The Causeway, Teddington TW11 0HF

(020 8574 0666)

(020 8977 6633) (DX 35250 Teddington)

e-mail: fahmy@vincentsolicitors.com

e-mail: michael.garson@kaganmoss.co.uk Ariya Sriharan of Sriharans North Middlesex

223 The Broadway, Southall UB1 1ND

Michael Singleton

(020 8843 9974) (DX 119583 Southall 3)

Singletons Austin Ryder

e-mail: info@sriharanssolicitors.co.uk

2 Crossfield Chambers, Gladbeck Way, Enfield EN2 7HT (020 8367 0387) (DX 90604 Enfield) e-mail: michael.singleton@singletonsuk.com The Law Society Greater London Regional Office,

Renuka Sriharan of Sriharans 223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3) e-mail: info@sriharanssolicitors.co.uk

The Law Society, 113 Chancery Lane, London WC2A 1PL

Elisabeth van der Weit of Hameed & Co.

(020 7316 5554) (DX 56 London/Chancery Lane)

4 Grand Parade, Forty Avenue, Wembley Park, HA9 9JS

Regional Manager: Mark Hudson

(020 8904 4900)

e-mail: mark.hudson@lawsociety.org.uk

e-mail: hameed@hameed.plus.com

4 The Bill of Middlesex

www.middlesex-law.co.uk

introduction

President’s Review The Lord Chancellors opening of the legal year ceremony.

In the morning I met with some members of the judiciary from other countries who seemed very keen and thrilled to be invited to witness the ceremony.

They informed me that there was no invitation opened to other countries in their equivalent opening of the legal year in either Italy or Spain.

However after they had witnessed all the pomp and ceremony they left with a clear determination to let their fellow members know how much they had enjoyed the day.

At the ceremony itself everyone looked resplendent in their robes. Hymns were sung and there were a number of readings. The church choir was particularly good.

This was followed by a walk or procession over to the House of Lords for tea and that is where I met with the Lord Chancellor as evidenced by the photographs.

With regards to matters I said I would try and implement during my tenure I can report:1. The past presidents dinner - This has been resurrected and will take place on the 30th of January 2015.

2. Annual dinner every 18 months or so.

We were planning a joint venture with our partners at Surrey Law Society to celebrate the Magna Carta anniversary next year however that is not now going to happen.

The annual President's dinner will therefore be held in 2015 on a date and time to be advised in our next issue.

3. Joining SAALS - The Society is being considered for membership of SAALS at their meeting in January.

5. Cafcass - I have arranged a meeting and will report A.S.A.P hopefully by the next issue.

I wish you all a Happy Christmas and a prosperous New Year.

GURMEET KHARAUD President, Middlesex Law Society e-mail: gk@fortsolicitors.com

4. Additional Venue for Committee meeting.

We have in fact moved but remain in the Ealing area.

REGIONAL REVIEW - OCTOBER 2014 News

•

Celebrating Diwali (Mon 13 Oct)

•

Mental health and learning disabilities in police custody and

•

Access to Justice campaign

•

Law Society annual review 2013-14

•

The economic contribution of the legal sector

criminal courts (Weds 15 Oct) •

The Women Lawyers and Small Firms Divisions: how to maximize your investments and pay less tax (Weds 15 Oct)

•

PC renewals begin on 01 October

•

MDP proposals

•

Civil Justice Section autumn conference (Thurs 16 Oct)

•

SRA decision on accounting requirements

•

Commercial litigation: the post-Jackson world (Mon 20 Oct)

•

Organised crime survey

•

South Africa constitutional democracy at Twenty (Thurs 23 Oct)

•

Lender Exchange update

•

London law fair: exhibitor opportunities

•

Lexcel conference (Weds 29 Oct)

•

Lawyers with Disabilities Division: your career as a solicitor

•

MoJ publishes consultation on Otterburn and KPMG reports

•

Interim payments for legal aid

•

Government confirms consumer contract regulations do not apply to legal aid cases

London Events/Conferences •

Doing legal business in Mexico (Fri 03 Oct)

•

Private Client Section: elderly client care conference (Fri 03 Oct)

•

Management course stage one (Tue 07 Oct)

•

Small Firms Division annual conference (Thurs 09 Oct)

•

starts here (Thurs 30 Oct) Events not listed where fully booked and held at Chancery Lane unless stated; for further details see our events page.

SRA Consultations •

Call for evidence: client protection

New Practice Notes •

Consumer Contract Regulations 2013

National property law conference (Fri 10 Oct: Victoria Park Plaza)

The Bill of Middlesex 5

local news

JUNIOR LAWYERS TO PROMOTE MAGNA CARTA The legal profession is being encouraged to use the 800th anniversary of the sealing of Magna Carta to educate young people across the country about the Charter’s historical importance and contemporary relevance.

At a special event held yesterday (29 October) at the May Fair Hotel in London, the Master of the Rolls, the Rt Hon Lord Dyson, who is Chairman of the Magna Carta Trust, launched the Junior Lawyers in Schools project as a key part of the Magna Carta 800th anniversary events.

The project is designed to connect schools with young lawyers interested in going into classrooms to talk about why Magna Carta matters and how it impacts on all our lives. The Magna Carta 800th Anniversary Committee is providing relevant materials, classroom work sheets and background papers to support the project, as well as an interface on its website where junior lawyers and schools can sign-up to support the project.

A poll conducted in 2012 by the 800th Anniversary Committee found a lack of understanding of key facts about Magna Carta among young people. It found that only 60 per cent of 18 to 24 year-olds had heard of Magna Carta, compared to 87 per cent who were aware of the US Declaration of Independence.

Magna Carta is the foundation of freedom under the law and ever since King John agreed “The Great Charter” with his Barons in 1215, its principles have influenced constitutional thinking worldwide, and have served as the foundation of freedom for almost 2 billion people in over 100 countries.

In addition to providing materials online, the Chartered Institute of Legal Executives (CILEx) has provided funding for at least 800 memory sticks to

be distributed to its Fellows and other junior solicitors and barristers. These memory sticks will be preloaded with ideas and activities to help classroom discussion and interaction on Magna Carta and the Rule of Law. Lord Dyson said, “We know that most young people have heard of Magna Carta, but not enough feel they know what it is really about or understand how important it still is today. The 800th anniversary is a unique opportunity to educate a new generation about Magna Carta. I particularly welcome and would encourage all of us working in the legal system to be part of this exciting initiative.

Speaking at the launch event, CILEx President Frances Edwards said, “CILEx believes the impact of the Magna Carta should be understood and celebrated in current times and we are proud to support the Junior Lawyers in Schools programme.

“We not only support the programme as lawyers, but also as educators of young people – we can speak first hand as to how important it is that young people have access to legal skills, knowledge and a fundamental understanding of the rule of law.”

Judith West, Director of Partnerships at Radisson Blu Edwardian Hotel Group, the official hotel partner to the Magna Carta 800th Committee, welcomed Lord Dyson to the launch event: “We are pleased to host this launch of the Magna Carta in schools project today as we recognise the importance of a strong heritage and values, and the significance of Magna Carta in establishing freedom under the law.

Photograph from left to right: Justin Fisher, Magna Carta 800th Committee; Frances Edwards, president of CILEx; Lord Dyson, chairman of the Magna Carta Trust; Julia Bateman, director of Global Law Summit; Daniel Steinberg, Young Barristers; Sophia Dirir, Junior Lawyers Division of the Law Society; Chris Lloyd, Magna Carta Chronicle.

“The Edwardian Group has been developing leading hotels and hospitality brands since 1977, with the guiding principle of delivering a truly exceptional and memorable experience for our guests, time and time again.”

The project has been developed working closely with the Young Barrister’s Committee of the Bar Council, the Junior Law Division of the Law Society and CILEx. The Magna Carta Junior Lawyers project is one of a range of activities being promoted and co-ordinated by the Magna Carta Trust’s 800th Anniversary Commemoration Committee to help ensure everyone has the opportunity to learn more about Magna Carta.

The Committee is also producing and promoting lesson plans, videos, specially commissioned children’s books and talks, as part of its schools education programme. More details can be found at www.magnacarta800th.com/schools For further information please contact Nick WoodDow at Chelgate on 07713 681322, or Mark Gill, Executive Director of the Magna Carta 800th Committee on 07879 632870.

APPLICATIONS INVITED FOR INTERNATIONAL STUDY FUNDING Qualified and trainee lawyers are being invited to apply for substantial funding to support them through their international study.

The HM Hubbard Trust is inviting applications from lawyers who wish to study the law of Canada, Spain or France in those countries.

The Trust provides Scholarships of up to £27,000 for a year’s Masters level course.

The Trust was established by the will of the London based solicitor, Henry Malcolm Hubbard, who had substantial business interests in Canada, Spain and Latin America. It is believed that he worked in Barcelona and was instrumental in bringing electricity to that part of Spain.

Those who have been supported by the Trust include Rachel Roche. Commenting on the support the Trust provided she said: “The HM Hubbard Law Scholarship has, without a doubt, been a turning point in my

6 The Bill of Middlesex

career. Not only did the financial assistance enable me to embark on a programme that would have been otherwise out of my reach, it has given me the confidence to pursue my career in a way that I had not previously thought possible.”

Since completing her studies Rachel has set up her own firm, Roche Legal, using many of the skills and contacts that she acquired whilst studying abroad.

programme of course, but also learnt a lot about myself. It has certainly opened my eyes to what is possible if you grab opportunities when they arise.”

Further information on the Trust and the application process can be found at the Trust web site: www.hubbardlawscholarship.com.

Application forms are also available from the site.

Rachel Commented further:

The application closing date is 30th November with short-listed applicants being asked to meet with the Trustees in mid-December.

“Studying abroad has changed my perception of many things, and helped me to grow both academically and personally. I would encourage anyone who thinks that they would benefit from this opportunity to apply. I learnt a huge amount of law on my chosen Masters’

For further information contact Vince Cheshire at TMF-Group.

T: 01582 439200 E: Vince.Cheshire@TMF-Group.com

local news

GOVERNMENT APPROVES TRAILBLAZER APPRENTICESHIPS IN LAW The Government has today approved the standards for apprentices to become Chartered Legal Executives, solicitors or paralegals as meeting the requirements for the Trailblazer Apprenticeships in Law initiative.

The Government has today approved the standards for apprentices to become Chartered Legal Executives, solicitors or paralegals as meeting the requirements for the Trailblazer Apprenticeships in Law initiative.

the first of their kind and employer participation has already been sector-wide.

There is mounting interest in legal apprenticeships and the Trailblazer framework will enhance the profile and scope of this accessible and affordable route into law.”

The standards, which meet ILEX Professional Standards’ (IPS) requirements to become a Chartered Legal Executive, will now enter the second phase of consultation which will decide the curriculum and assessment process in line with IPS’ specifications. The consultation for the Chartered Legal Executive pathway will be supervised and co-ordinated by the Chartered Institute of Legal Executives (CILEx).

She continued: “The current Apprenticeships in Legal Services will remain as they are until the new framework, which is likely to be launched next year, is in place. CILEx would like to reassure those currently enrolled or due to enrol on a CILEx Apprenticeship in Legal Services that they will not be required to switch to the new scheme when it is introduced.”

Vicky Purtill, head of qualifications at CILEx said: “The CILEx Apprenticeships in Legal Services, which were launched in 2013, were

Trailblazer Apprenticeships meet the changes required by the Government for apprenticeships in all sectors to be eligible for

funding by 2017. The Trailblazer Apprenticeships in Law have been produced by professional bodies, regulators and a number of UK law firms and in-house teams.

Skills Minister Nick Boles said: “I’m delighted that the legal trailblazer initiative has developed new apprenticeship standards for solicitor, Chartered Legal Executive and paralegal roles. Since 2010 there have been 1.8 million apprenticeship starts and law trailblazers are leading by example in the development and delivery of high quality apprenticeships that give people the chance of successful careers and help businesses get the skills they need to grow.”

ALTERNATIVES TO EUROPEAN ARREST WARRANT COULD MAKE UK A SAFE HAVEN FOR CRIMINALS, WARNS BAR COUNCIL European Arrest Warrant needs improving, not dropping altogether.

The UK risks becoming Europe’s safe harbour of choice for criminals if it doesn’t opt back into the European Arrest Warrant, the Bar Council has warned, ahead of MPs voting on the issue.

The legal body, which represents barristers in England & Wales, has been actively involved in the debate over the UK’s participation in certain EU criminal justice measures, including the EAW, over the past three years. It reiterates that the UK would need to agree a multitude of bilateral and multilateral extradition agreements with other EU countries as an alternative.

Nicholas Lavender QC, chairman of the Bar Council, said: “The EAW is not perfect and there is no doubt it needs reform. Steps are being taken at EU level and among the Member States to make those changes, as well as to adopt other complementary measures that will improve its application in practice.

The UK can and should be a leading voice in that reform process. It should also move to implement other related measures such as the European Supervision Order and the new European Investigation Order. The EAW regime replaced a much more cumbersome structure. It has substantially cut down the average time an extradition request takes, while increasing the numbers of fugitives returned.

“The alternative is much more problematic for the UK. It may require the UK to agree various bilateral or multilateral arrangements with other Member States in the EU. Failing that, we could be left refusing future requests for extradition entirely, which sends a very clear signal to criminals across the EU – that the UK is the continent’s safe haven for criminals.

“The purpose of the EAW is to return a suspect to their national court, rather than be tried in a foreign court. Remaining outside of the EAW will take that principle away and put incredible strain on the UK’s already buckling criminal justice system. The EAW needs sensible reform and the UK should be involved in that rather than being left on the side lines.”

The EAW ensures direct enforcement by a judge in one EU Member State of a warrant for arrest issued by the judicial authority of another EU Member State.

National Crime Agency statistics show that from 2009 to April 2014, a number of successful arrests were made under the EAW where criminals had fled to the UK, including 84 arrests for child sex offences, 664 for drug trafficking, 143 for immigrations and human trafficking offences, and the same number for murder. Those same statistics reveal that, contrary to some reports, only 2% of the total number of persons requested from the UK by other states under

the EAW over the past four years have been UK citizens. In figures, that equates to 467 out of a total of 22,693 requests, spread roughly evenly over the period.

MPs are expected to vote on whether to opt in again to the EAW in November.

The European Investigation Order is a single regime for the request and collection of evidence in another Member State, which should reduce the number of cases where Member States use an EAW inappropriately in order to gather evidence. Another related measure to the EAW is the European Supervision Order, by which a defendant can await trial in another Member State on bail in his home Member State. The UK is taking part in both of these measures.

Further information is available from the Bar Council Press Office on 020 7222 2525 and Press@BarCouncil.org.uk

The Bill of Middlesex 7

local news

Accelerated Payment Notices The 2014 Finance Act introduced significant new powers for HM Revenue & Customs (HMRC) that require tax payers to pay tax upfront in respect of disputed tax.

The tax has to be paid within 90 days of the notice being issued. The tax is paid through the use of Accelerated Payment Notices (APN).

If challenged the payment date may change.

HMRC can issue such a notice in two circumstances. In the first case, the disputed tax hinges on the same, or very similar points in a case already decided in court known as ‘Follower cases’, or secondly it can be issued when the Tax Avoidance Scheme is covered by the disclosure of Tax Avoidance Scheme (DOTAS) rules or a general anti-abuse rule (GAAR) counteraction notice has been issued.

The tax has to be paid within 90 days of the notice being issued.

The APN explains how the amount was calculated and what the taxpayer can do if they disagree with the amount.

The notice is designed to remove the cash advantage of sitting and waiting during an avoidance dispute. Penalties of up to 15% of the disputed tax may apply to late payment.

The new legislation is potentially of impact to individuals, partnerships, companies and trusts

who have entered into any planning arrangements that fall within the above criteria.

them will pay provided that the amount due is paid in full.

The legislation applies not only to new arrangements entered into after enactment of the legislation (17 July 2014), but also into arrangements entered into in the past. HMRC have issued a list of all DOTAS scheme reference numbers which it expects APNs will be issued, which began in August 2014.

There is no right of appeal against an APN but taxpayers can make written representations to HMRC if for example, the conditions for issuing the notice have not been met or the amount owed in the notice is incorrect. The letter must reach HMRC within 90 days of the APN being received.

If the amount in the APN is more than the amount that turns out to be due, then HMRC will repay any tax overpaid plus any interest.

If you are a member of a partnership and the avoidance scheme was used by the partnership, your partner payment notice will show the amount relating to your share of the partnership share of the scheme.

When the APN is paid it does not mean that the tax matter is settled. The only way for a taxpayer to get their money back is to win a court case. If this happens, HMRC will normally repay the amount paid under the APN along with any interest that is due. But if HMRC appeals against the decision, the repayment may be delayed.

For avoidance schemes involving Stamp Duty Land Tax (SDLT) or Annual Tax on Enveloped Dwellings (ATED), HMRC will send an APN to each joint purchaser or partner.

If you would like to talk us about any issues you may have, or have further questions surrounding Accelerated Payment Notices, please call Paul Levy on 0208 861 7575 or email him at lgmail@lawrencegrant.co.uk

Each notice will show the whole of the amount due and each joint purchaser or partner will be jointly responsible for paying any penalties. The joint purchasers can decide how much each of

Lawrence Grant, Chartered Accountants: Partner Profile - Paul Levy Paul is our Senior Partner and specialises in UK tax for individuals, Sole Traders and Limited Companies.

Paul attended the London School of Economics before qualifying as a Chartered Accountant in 1979.

He then went on to join the practice in 1982 and became partner in 1983.

As a member of the Institute of Taxation, Paul keeps up to date on all aspects of UK tax issues and advises many UK and overseas clients on how to work successfully within the existing UK tax laws.

Lawrence Grant combines a thorough and constructive evaluation of your business with expert advice, planning, projections and forecasts. As a leading accountancy practice, our

8 The Bill of Middlesex

professional reputation amongst barristers and solicitors stems from providing a consistently high standard of financial support to legal professionals.

We are a member firm of the Institute of Chartered Accountants of England & Wales (ICAEW).

2nd Floor, Hygeia House 66 College road Harrow, Middlesex HA1 1BE (T): +44 (0)20 8861 7575 (E): paul@lawrencegrant.co.uk www.lawrencegrant.co.uk PAUL LEVY FCA CTA Partner

local news

PUTTING A PRICE ON FAMILY HISTORY

WINE OF THE SEASON with Conal Gregory, Master of Wine

Homeowners could be putting family heirlooms at risk by failing to recognise their monetary value writes Nicki Whittaker, a High Value Home Specialist at NFU Mutual.

Heirlooms, such as paintings and jewellery, which have been passed down through the generations, often have great sentimental value. Unfortunately, because these items are rarely viewed in terms of their monetary value, there is a real danger that they will not be adequately insured.

A recent survey conducted by NFU Mutual highlighted a worrying tendency for homeowners to undervalue or overlook items which they had inherited. Indeed, in 90% of valuations undertaken by NFU Mutual’s valuation partners, homeowners had either undervalued items or simply had no idea of an item’s value.

The survey revealed that inherited items, such as jewellery, watches and furniture, were most commonly undervalued by homeowners, typically by 45%. The problem is exacerbated by the fact that most homeowners do not reassess the value of their home contents for decades, forgetting that the price of gold, the death of an artist or the popularity of items from certain periods can significantly affect the value of certain heirlooms.

One valuation specialist recalled sitting down in a policyholder’s kitchen for coffee at the end of a visit and spotting an interesting piece of china sitting in the cupboard with the mugs. Upon closer inspection, the item turned out to be a vase handed down from the policyholder’s great aunt and worth many thousands of pounds. Another valuation expert told of a walnut bureau that the owner thought was perhaps worth £1,000 but was actually worth closer to £40,000 and could have been worth more had it been better cared for!

Unfortunately, it is not until these items are stolen, or damaged in a major incident such as a flood or fire that a homeowner will even give a thought to their value or replacement and, by then, it is often too late.

The survey, which was undertaken to coincide with the launch NFU Mutual Bespoke, a new insurance product for high value homes, revealed a real problem with the insurance of inherited items. Part of the problem comes from the fact that, inherited items are rarely looked at in a monetary light, with artwork, for example, found to be undervalued in two-thirds of cases.

Heirlooms are often rich in family history and, therefore, it is essential that they are safeguarded for future generations. This doesn’t mean they cannot be enjoyed or even used but it does mean that they should be insured for their true financial worth and not just their sentimental value.

Without doubt Rioja is Spain’s best known wine region.

Protected from the Atlantic by the Ebro mountains, the three red grapes of Tempranillo together with a little Garnacha and Graciano yield rich wines with structure. One of the stars is Marques de Caceres, founded in 1970, whose Reserva 2009 is aged 20-22 months in French oak barrels. It shows supple elegance.

Enjoy particularly with lamb. £16.49 or £14.01 when two bottles bought (Majestic Wine).

Across from the northern Rhone town of Tournon lies the hill of Hermitage. Imagine a delicious dry white with aromas of acacia flowers, honeysuckle and apricot with a taste of white stone fruit and figs. The Marsanne and Roussanne grapes yield wines of length that will keep for a decade, if you can resist that long! A tip is to opt for the less expensive Crozes-Hermitage. A cracking example is Les Marelles from Gilles Robin. £19.75 (Lea & Sandeman).

Sponsored by NFU Mutual Bespoke, high-value home insurance tailored to protect everything you value, including art, antiques, fine wine and more.

Visit www.nfumutual.co.uk/bespoke for further information.

The Bill of Middlesex 9

local news

Beauty is in the eye of The Legal Education and Training Review completed the first stage of its work in June 2013. Since then the SRA has been developing its thoughts on future training for the profession. The question posed in the current consultation to develop the Training for Tomorrow project is ‘what standards should we expect of solicitors when newly-qualified and subsequently?’

A

t the heart of the new structures will be ‘competency’ standards. Setting a standard that is applicable to qualification as a solicitor as well as to ongoing competence is the challenge that SRA seeks to meet.

The standard suggested in the consultation is that ‘competence is the ability to perform the roles and tasks required by one's job to the expected standard' (Eraut and Boulay, 2001).

The definition recognises that requirements and expectations change depending on job role and context. It also recognises that competence develops and that an individual may work competently at many different levels, either at different stages of their career, or depending on the nature of their work.

The statement is to be found at http://www.sra.org.uk/sra/consultations /competence-statement.page There is recognition that the qualification of solicitor should require a core legal knowledge and a broad based understanding of core activities relating to ethical behaviour, technical skills (drafting, negotiating, researching), management of work and communicating with other people.

It is acknowledged that all solicitors should have abroad based understanding and that expertise in specialist areas will develop over time.

The consultation sets out a high level indication of the matters coming within the required Statement of Legal Knowledge.

This addresses what practitioners need to be able to do with the knowledge they possess in order to practise effectively, including identifying relevant legal principles; applying legal principles to factual issues to produce a solution which best addresses a client's needs and reflects the client’s commercial or personal circumstances; spotting relevant issues that are outside their expertise and taking appropriate action, using both an awareness of a broad base of legal knowledge and detailed knowledge.

This means that a solicitor must have a detailed knowledge of the law and "an awareness" of background legal knowledge, sufficient to spot relevant issues and to know when to seek additional advice. In summary there is recognition of ‘A broadly based training and knowledge of the law distinguishes solicitors from other legal professionals who receive training which is more focused on their specific area.’

The importance of an agreed competence statement is to address the inconsistencies of approach in current training by setting a common standard. It also supports a more flexible approach to how standards are achieved by setting out the expected standard for the gateway qualification. This is set out in a proposed threshold statement http://www.sra.org.uk/sra/consultations /competence-statement.page#annexB

10 The Bill of Middlesex

This seems to be a potentially valuable tool for training providers and adjudicators.

Core knowledge remains aligned to familiar topics: business law, property, torts, criminal law and process, contract, equity, constitutional and EU law, English legal system and civil litigation. The threshold test is a particularly interesting piece of work as it attempts to answer the question as to what is to be expected of a qualified solicitor. The description of the stages pre and post qualification will ring bells with readers and provide useful pointers to making competence assessments.

The standards that a trainee may bring to bear in respect of any particular task or project may not fall conveniently within a single stage of the threshold test but viewed along with other work could in many cases give the basis for arriving at an assessment of whether the standard is or is not met.

Once the standards are set much will still be determined by the way in which the standards are applied managed and processed. The central challenge will remain; what may appear ‘competent’ to me or you may not meet the approval of the adjudicator. For that reason the system of assessment at the end of this building process will be fundamental to ultimate success in this project.

The new approach is to focus on quality standards that lie within activities rather than

local news

the beholder….

completion of stages in a process. However, once fixed the new standards, which are intended to shape the future education of solicitors, may themselves become hostage to the structures adopted for assessment and mechanisms for enforcing standards. A process for approving courses for students and trainees will need to be decided by the regulator and criticisms of the current system remain to be overcome in the new regime.

For there to be real improvement then current variability of standards will need to be addressed and the question of accreditation of teaching institutions will prove a real challenge for the SRA in the quest for consistency of outcomes. Bearing in mind the wide variety of methods of assessment that are available (ranging from examination based to work based learning) for meeting the entry standard, interpretation of the competence statement will itself be tested from the outset.

The competence statement is to be embedded in the handbook as part of Principle 5 that requires a proper standard of service and thus it will become core to continuing competence. A change to the procedural requirements of CPD has been rolled out and is optional from April 2015 but operational for all from October 2016.

The requirement for accredited training will give away to a less formalistic but more focused imperative. Firms will be encouraged to audit their training needs and

set a training framework for all those working within the organisation.

Demonstrating a planned approach with evidence of relevance may for some prove more onerous than the current arrangements. However given retention of the currently required number of hours and the wide range of activities that qualify for inclusion on the training record the standard does not seem particularly challenging.

Whilst career progression or change mandate their own training needs it seems as though any solicitor committed to competence in a world that is as fast changing as ours cannot easily avoid meeting the necessary time commitment.

As with all things ‘OFR’ there is a need to reflect and maintain a reliable record of activity. Rather than file any training records an annual self certification of compliance is the plan. One cannot but draw parallels with the recent U turn on abolishing accountants’ audit certificate. The SRA finally decided they only need to see paper work if there was a breach of the Account Rules. Reporting one’s own failure to complete training poses a rather different challenge. If one fails to think properly about compliance presumably this then falls to the COLP to report?

CPD is concerned about standards and the quality of the work turned out by solicitors.

Actual performance may depend upon qualities other than knowledge of the law

and its application and be affected by environment and other personal pressures. For anyone wishing to take advantage of the new relaxed CPD framework it will be important to adopt a plan for self-improvement with set objectives and a path to achieving those objectives.

For those experienced practitioners who have wide experience in their sector of work the challenge will remain as it has always been even before CPD came along to do as much learning of new material as is necessary and to update on legislation case law and changes in practice and procedure.

The existence of the CPD rules does not make a great deal of difference to those with the necessary motivation to do their work competently. It may well be that the competence standard and the final step in the threshold test do not truly raise the bar or fix the bar as high as they could. In dealing with any issue there are in the modern age going to be challenges in terms of current law, practice, procedure and developing pragmatic solutions.

Proportionality drives solicitors’ work to enable the right solution to be delivered to the right person for the right price and no amount of regulation is likely to have refined enough tools to get to the core of that question.

MICHAEL GARSON Council member, past chair and member of Regulatory Affairs Board.

The Bill of Middlesex 11

professional issues

DX PROVIDES VITAL SUPPORT TO THE BAR’S NATIONAL PRO BONO CHARITY DX, a leading independent mail, parcels and logistics end-to-end network operator in the UK and Ireland, has helped the Bar Pro Bono Unit during the recent surge in demand for its services which saw a 51% increase in applications in 2014. The Bar Pro Bono Unit is the Bar’s national charity that matches members of the public in need of legal help with barristers who are willing to volunteer in deserving cases for those who are unable to obtain legal aid and cannot afford to pay.

The Bar Pro Bono Unit is the only charity that provides pro bono assistance nationwide in every area of law, through a network of over 3,500 barristers, from tribunals through to the Supreme Court.

The charity ensures that, in each case, the barrister providing assistance is able to offer the same expertise and experience as would be expected in a paying case.

DX Exchange has been integral to the Bar’s pro bono operation for the last 18 years. DX ensures that original hard copy documents for each case are transported from the charity’s base in Chancery Lane to its volunteer barristers spread across

England and Wales, and that they arrive on time, every time.

Kuki Taylor, Fundraising and Communications Manager at the Bar Pro Bono Unit, comments:

“We are very grateful to DX Exchange for its unwavering support and superior service, as it enables us to help those most in need of legal help.”

PAUL DOBLE, Chief Sales & Marketing

Officer at DX, adds: “The Bar Pro Bono Unit plays a hugely important role in ensuring everyone receives the legal representation that they deserve, irrespective of whether they have the funds to pay for this service.

We have been operating in the legal industry for the past 40 years and are in a unique position to provide the Bar Pro Bono Unit with the logistical support it needs to support its operations.”

Middlesex Law Society (est. 1959)

APPLICATION FOR MEMBERSHIP Surname _______________________________________________________________________________________________________________ Mr / Mrs / Miss / Ms Forenames _______________________________________________________________________________________________________________________________ Name of Firm or Organisation ______________________________________________________________________________________________________________ Postal Address or DX no: __________________________________________________________________________________________________________________ Telephone ________________________________________________________________________________________________________________________________ Email ____________________________________________________________________________________________________________________________________ Status & Area of Work _______________________________________________ Date of Admission _____________________________________________________ Would you be interested in joining the Committee?

Yes/No

I wish to apply for FULL/FIRM/ACADEMIC/ASSOCIATE/STUDENT (YMG) membership of the Society (see below for details) I enclose herewith my cheque for £ _________ for the current year, made payable to "Middlesex Law Society" Signature ____________________________________________________________ Date _______________________________________________________________ Subscription Rates: Full Individual Membership:

£50.00 per annum (more than 3 years admission) £30.00 per annum (less than 3 years admission)

Firm Membership:

Partners/Solicitors 2-5 £125 per annum 6-10 £250 per annum more than 10 £500 per annum

Academic Law Departments:

£200 per annum

Associate Membership:

£15.00 per annum (Trainee Solicitors, ILEX members, Paralegals)

Students:

£5 per annum (Young Members Group)

Please return completed form and remittance to: The Membership Secretary, Middlesex Law Society, Susan Scott-Hunt, Middlesex University, The Burroughs, Hendon NW4 4BT

Tel: 020 8411 6019 e-mail: s.scott-hunt@mdx.ac.uk

12 The Bill of Middlesex

professional issues

Accountants’ report – Added value or added cost The Solicitors Regulation Authority has backed down over proposals to abolish the compulsory accountants’ report.

SHERYL DAVIS, partner of Barnes Roffe LLP,

Chartered Accountants, considers the implications!

T

he SRA had proposed to remove the mandatory requirement for all firms of solicitors who hold client money to submit an annual accountants’ report to the SRA. Instead the Compliance Officer for Finance and Administration (COFA) would be required to sign an annual declaration confirming compliance with the SRA Accounts Rules.

On 17 September, after considering responses to this proposal, The Board of the SRA decided that firms will still be required to commission accountants’ reports within six months of their financial reporting period. However only those reports that are qualified will have to be filed with the SRA. Firms that receive 100% of fees from Legal Aid work are exempt from needing to commission a report.

This must be seen as good news by COFAs who were about to see their responsibilities increase yet again as a result of self-regulation.

So what is behind these changes and how can the accountants report be made more relevant and useful to both regulators and legal practices alike.

Earlier in the year the SRA announced a major programme of regulatory reform, with one of the objectives being to ‘reduce unnecessary regulatory burdens and cost on regulated firms.’

It has been estimated that the preparation of accountants’ reports costs the profession £30m a year so it is easy to see the benefits of scrapping the report. However should the accountants’ report be reviewed as just an additional cost? If your accountant is doing their job well then the benefits of the accountants’ report should outweigh the expense.

14 The Bill of Middlesex

An experienced accountant should appreciate that their role in preparing the accountants’ report is not just to compile a list of breaches but to provide advice and support to the COFA and the other partners. The accountant has the benefit of visiting a number of legal practices during the year and, as a result, can share his experience. He is well positioned to advise on best practice and effective systems that can be implemented to prevent or detect common breaches. The accountant should also be able to advise on ways to streamline outdated systems resulting in efficiencies and cost savings.

In the majority of legal practices the COFA is a partner and fee earner with a large workload of urgent client matters to deal with, in addition to their responsibilities as COFA. The accountant should be seen as a resource available to the COFA to discuss weaknesses and to provide advice on improvements.

The ‘threat’ of an annual accountants’ report helps to develop a sound control environment within the practice, which in itself reduces the risk of error or fraud. The accountants’ report also provides reassurance to the other partners of the firm, who are not directly involved in the accounting system, that the SRA Accounts Rules are being properly applied within the firm.

The SRA must be hoping to reduce its own administrative costs if it only receives qualified reports for filing. However, in reality the vast majority of accountants’ reports are qualified as a result of identifying at least one non trivial breach.

The SRA board has announced that further consultation will take place over the turn of the year to make additional improvements to the reporting form, planned to come into

force in April 2015. It is hoped that these improvements will add real value to the annual accountants’ report whilst at the same time reducing regulatory burden.

The key to making accountants’ reports more useful is to review what is considered a reportable breach. Submitting a report to the SRA stating that the practice has breached the ’14 day rule’ a couple of times in a year cannot be adding value to anyone.

The SRA could consider a traffic light framework for reporting similar to that implemented by The Pensions Regulator. Such a framework could state that amber breaches should be reported to the partners of the practice but that only red breaches require reporting to the SRA. If such a system was implemented the following should be considered when deciding whether a breach should be reportable to the SRA: • Was there a loss or risk of loss to a client • Was the breach systematic or a one off • Was the breach detected internally & corrected • Have internal procedures been changed to prevent reoccurrence of the breach It is undeniable that the accountants’ report can be improved in order to add more value to the both regulatory process and legal practices. However the process of an annual review by an experienced accountant is an important safeguard to help protect client money.

by SHERYL DAVIS, Partner of Barnes Roffe LLP.

professional issues

Clever Accountants for Business Barnes Roffe is one of the UK’s top 50 accountancy firms providing audit and assurance, consulting, financial advisory, risk management and tax services to owner managed businesses across the South East of England.

We offer top class technical advice to our clients and take a really “hands on” approach in dealing with our clients’ needs. Our backbone of strong professional accounting and tax partners go out of their way to regularly meet all their clients, no matter how large or small. By maintaining this close contact, we can really get involved in our clients’ businesses and make suggestions which are relevant to their individual circumstances and aspirations.

We believe this personal approach is key to ensuring that we are able to provide a proactive and creative accountancy, audit and tax service led by our most experienced people.

3 Brook Business Centre, Cowley Mill Road, Uxbridge, Middlesex, UB8 2FX

Telephone: 01895 256423 Fax: 01895 274107

www.barnesroffe.com

“At different life stages, some of our services are more relevant than others” Family Wealth Preservation Wealth Management Retirement Planning Protection Planning Tax Planning Mortgages

£216 MILLION BEREAVEMENT BILL AS FAMILIES URGED TO REVIEW LIFE INSURANCE • Up to £216m in IHT taken from life insurance policies in 2011/12 • Extra paperwork only obstacle between average saving of up to £41,000 • Up to 40% of life insurance pay-outs could be lost in tax An urgent review of life insurance policies is being called for after the figures from HM Revenue & Customs (HMRC) revealed bereaved families are being hit with unnecessary Inheritance Tax (IHT) bills totalling up to £216 million.

The latest figures from the taxman show the problem is getting worse. More than 5,200 people left their families with an IHT bill on their life insurance pay-out in the 2011/12 tax year, up by around 5% in two years and averaging £41,000.

Sean McCann, chartered financial planner at NFU Mutual, said: “This is completely unnecessary and should not be happening.

“Life insurance policies should, wherever possible, be written into a trust to prevent a significant chunk going to the taxman.

Otherwise, up to 40 per cent of the pay-out could be claimed by the taxman when it could be going to bereaved families instead.

“Writing a policy into trust also has the benefit of speed of payment. When a policy has been written into trust, payment can reach the family bank account within three to four weeks. If it had to go through probate instead, it could delay payment for several months.

“Even if you don’t think you have an IHT problem, the speed of pay-out from a policy in trust should be an incentive to review your policy.

“Often, this money is vital to keeping the family business running, or means surviving families can make ends meet – whether it’s to replace lost income or to pay for extra childcare while the surviving parent goes out to work. ”Trusts are really simple to set up and, with most life insurance companies providing the forms free of charge, it shouldn’t cost anything other than spending a few more minutes to complete.

S4 Financial Ltd is an Independent Financial Advisory firm, which is authorised and regulated by the Financial Conduct Authority.

S4 Financial Ltd is entered on the FCA register (www.fsa.gov.uk/register/) under reference 401372.

“However, HM Revenue & Customs’ figures show around 75,000 people left behind a life insurance policy in 2011/12 which wasn’t written into a trust. That’s 75,000 families who could have been made worse off from an IHT bill or slow payment.”

The Bill of Middlesex 15

expert witness

WHAT MAKES A GOOD EXPERT WITNESS? A good expert witness will add value to a case and assist the court, through their specialist knowledge. They will use their considerable experience to explain, clarify and enrich the body of evidence and opinion, to the benefit of all parties.

It’s all very well using an expert witness you know personally and can rely on, but what if they can’t complete their work to your deadline, or they don’t have the right specialism? Then you may have to instruct someone based on their reputation alone. So how do you make sure your own reputation is not damaged by a poor expert witness?

Make sure they’re a genuine expert Anyone can call themselves an expert. So check their ID, check their qualifications, and check to see if they’re registered with an independent regulatory body. It can help that some professional titles - for example “clinical psychologist” – are protected titles, whilst others – such as “consultant psychologist” – are not protected, so anyone can use them.

If applicable, also ask to see a recent DBS (criminal record) check and professional indemnity insurance.

Make sure they have the right experience Is the expert right for your case? Would a different expert be more qualified to answer the court’s questions?

A good way of checking is to follow the MoJ’s expected standards for expert witnesses in family law cases - upon which we were consulted -

that were introduced in October. As well as covering the above points, it adds that the expert must: • have recent, relevant, and documented experience of the issues of the case • keep up with recent developments in their field • know about relevant data protection and safeguarding concerns • actively seek feedback on their court work • be familiar with practice directions and regulations • clearly show where their opinion lies on the spectrum of mainstream opinion

Demand quality Will their report be concise, measured and evidence-based? Being accomplished within their discipline isn’t a guarantee that they’ll be able to write an expert witness report. Ask what checks for quality, accuracy and consistency they might carry out.

Supplied by Carter Brown

Expert Witness Profiles - 10 of the best!

Professor Patrick A Nee

Dr Sumeet Vohra GP

FRCS FRCP FCEM FFICM

Consultant in Accident & Emergency Medicine

Consultant in Occupational Health

Professor Nee has considerable experience in emergency and critical care medicine. He receives instructions in matters of personal injury and clinical negligence from claimant and defendant organisations.

He has assisted the Court as an expert witness on numerous occasions and supports other expert witnesses in the production of reports.

Trained and qualified in London at Charing Cross and Westminster Medical School.

GP in Sheffield and also Occupational Health Advisor to a number of Companies.

Consulting Rooms in Birmingham, Chesterfield, Derby, London, Manchester, Sheffield and Warrington. Medico Legal reporting on Road Traffic Accidents, trips/slips and employers liability.

Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030

Mr Philip Emm

Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030

Mr Saeed H Zaki FRCS ( Edinburgh) FRCS (Tr & Orth)

Consultant in Physiotherapist A Chartered Physiotherapist with 40 years experience working in London, Scotland and the last 25 years in private practice in Manchester. In that time has treated many 1000's of RTA and industrial injuries.

Our goals are to relieve pain and normalise range of movements and function.

Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030

16 The Bill of Middlesex

Consultant Trauma & Orthopaedic Surgeon I have extensive Medico-legal experience covering a wide range of scenarios and injuries. In Whiplash injuries my ratio of claimant to defence is about 80:20.

My special area of interest is fractures and soft tissue injuries involving both the axial and peripheral skeleton. I also deal with paediatric orthopaedic injuries and have experience as an expert witness for the courts.

Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030

expert witness Doug Hall

Robert Pendleton FRICS CEnv, RICS

Quantum Expert, Forensic Accountant

Consultant in Property

Doug has specialised in forensic accounting for over 25 years, acting as quantum expert for Claimants and Defendants/Respondents in both UK and cross-border commercial disputes.

He has given evidence in the High Court, arbitrations and other tribunals and contributed to the successful resolution of disputes by negotiation and formal mediation.

Registered Valuer, has acted as an expert witness on a variety of property matters in Courts and Tribunals since the 1980’s. He specialises in providing property valuation reports including those suitable for use by the Courts and can give expert evidence related to market rents for rent review and new leases, market valuations for a wide variety of purposes and lease extension premia.

Contact: doug.hall@smith.williamson.co.uk or Telephone: +44 (0)20 7131 4048

Contact: rob@levene-surveyors.com or hkvaluations12@live.com or mobile 07722 485663

Dr Mark Powell

Mathew Halton

Pharmaceutical Analytical Chemistry

A.M.I.M.I

Dr Mark Powell is a Fellow of the Royal Society of Chemistry and a member of Council of the Society’s Analytical Division. He has over forty scientific publications and conference presentations to his name and has worked at a senior level in academia and industry for over twenty years. Mark is an expert in chromatography, spectroscopy, pharmaceutical dissolution testing and quality control. He is an experienced expert witness in pharmaceutical analysis and has worked on cases concerning patent infringement and validity, as well as representing clients during inter partes testing.

Forensic Engineering Manager at Laird Assessors I have vast experience in a wide variety of accident related subjects where an independent professional opinion is required.

I assist The Court as a single /joint expert witness on subjects ranging from Vehicle damage assessments to consistency, Low velocity impacts, version of events and exaggerated claims.

Contact: info@mpscientific.co.uk or Telephone: 0151 353 0995

Contact: matthew.halton@laird-assessors.com or Telephone: 0151 342 9961

Nik Ellis

Andrew Ryan

FIMI Eng Tech CAE AIAEA

C.A.E I.M.I A.M.I.M.I

MD & Consultant Engineer at Laird Assessors

Senior Forensics Engineer at Laird Assessors

I have submitted many forensic motor reports over the years for use in litigation purposes, provide both questions and answers for part 35 questions, produce joint reports and give oral evidence in County, Crown and Magistrates Courts.

I am regularly instructed as a Single Joint Expert. I can provide references from Legal 500 listed solicitors from both Claimant & Defendant sides.

I have submitted many forensic motor reports over the years for use in litigation purposes, provide both questions and answers for part 35 questions, produce joint reports and give oral evidence in County, Crown and Magistrates Courts.

I am regularly instructed as a Single Joint Expert. I can provide references from Legal 500 listed solicitors from both Claimant & Defendant sides.

Contact: nik.ellis@laird-assessors.com or Telephone: 0151 342 9961

Contact: andrew.ryan@laird-assessors.com or Telephone: 0151 342 9961

The Bill of

Middlesex

17

expert witness

THE COST OF REFORM 2013 saw the implementation of major changes to the way personal injury claims are funded and sourced. It is still too early to realise the full impact of these reforms upon injured claimants, their lawyers and access to justice but the early signs show genuine cause for concern.

The full scope of the reform is too wide to rehearse here but in a wide variety of cases we have moved away from a system based upon the general proposition that successful claimants should keep all their damages and, in all but the most modest of cases, have reasonable fees and disbursements paid by the losing defendant, in favour of a one-size-fits-all fixed cost regime for road traffic, employers’ and public liability claims worth up to £25k (albeit with some exceptions) whether those cases are compromised in the newly expanded Portal system or go on to be litigated in the traditional way.

The concern is that claimants with complex or riskier cases, whose claims now fall to be dealt with under the new fixed costs regimes, are getting turned

18 The Bill of Middlesex

away by solicitors because their cases are not financially viable to run. For those that are taken on, increased pressure upon firms to reduce costs in order to stay financially viable means that work tends to be pushed down to smaller teams of the most junior fee earners thereby reducing the quality of advice, case preparation and service. This is compounded by pressure upon firms to keep work in-house rather than incur the cost of instructing counsel which, except in limited circumstances, is not recoverable from the defendant. A false economy.

Further, claimants entering “no win no fee” agreements from 1st April 2013 find that they, and not the blameworthy Defendant, must now meet success fees out of their damages. Claimants are hit and so are firms as such fees are capped

at a maximum of 25% of general damages and past loss.

The success fee cap affects the financial viability of the higher value cases involving complex arguments. Such cases are often hard fought by defendants as a result of their potential value and can mean that the risk of taking on and running such a case, funding disbursements along the way, outweighs the potential financial reward if there is a successful conclusion two or three years later. Children with complex cases, particularly those consisting predominantly of large future losses, are also affected because the litigation risks weigh heavily for firms against the prospect of diminished or no return.

Access to justice for some, but not all.

by Jamie Marriott

expert witness

THE QUALITY OF ANALYTICAL RESULTS? The results of chemical analysis, when admitted as evidence, often decide guilt or innocence in a criminal case, and may undermine or strengthen a claim to intellectual property in patent litigation. The personal or financial consequences of a decision based on questionable data are obviously severe.

So what are the pitfalls to look for when evaluating the quality of analytical results? Let’s consider the factors affecting data quality, from the time that the sample is taken to the moment the results are reported.

Once a sample is taken, it must be safeguarded against unintentional contamination, deliberate adulteration, or changes due to chemical instability. A chain of custody is established that tracks ownership of the sample. Any mistake in sample storage (for example, placing the sample in close proximity to potential contaminants), or the chain of custody procedure, may invalidate the test results. The type of container used to take the sample, and the sampling technique employed, may also affect data reliability.

The next part of the process is sample preparation, which may include extraction, concentration or dilution of the chemical species being determined. The sample preparation procedure must be robust and well documented in order to achieve traceability between the final results and the composition of the original sample.

The method used to test the sample must measure only the species of interest, and be free from interference by other sample components. This property of the analytical method is known as specificity. Sometimes the species being measured is present at one millionth part (or less) relative to the total amount of sample. The lower the amount of target species present, the greater the potential for interference from other components. A method’s specificity results from the selectivity of the sample extraction procedure and the test method used (e.g. titration, spectroscopy or chromatography). To complicate matters further, the specificity of chromatographic methods (where sample components are separated before being measured) also depends on the type of detector used.

Finally, once the sample has been tested, the results are calculated. The calculation must account correctly for dilution or concentration

steps, and should include an estimation of measurement uncertainty. An evaluation of measurement uncertainty takes into account the (usually small) systematic and random errors that occur during sampling, sample preparation and analysis. In cases where the question is “How much of the substance is present?” rather than “Is the substance present?”, the significance of a test result is difficult to evaluate without an estimation of this uncertainty.

The role of the analytical chemist as an expert witness is to consider all these elements of data quality and help the court to decide how much reliance to place on the test results.

by Dr Mark Powell email: info@mpscientific.co.uk

The Bill of Middlesex 19

property

STAGES OF THE COMMERCIAL CONVEYANCING PROCESS

by Sarah Potter Pitmans Solicitors

The commercial conveyancing process will come as second nature to many readers. This article is designed to serve as a reminder to those already working in commercial conveyancing and a brief overview to practitioners in other areas of law.

Who is the client?

It should be ascertained at the outset who the client is, bearing in mind that the ultimate beneficial owner may not be the contracting entity. The parties may change during the course of the transaction (for example a new company may be set up for the purpose of acquiring the property) and due diligence needs to be updated as necessary.

Review heads of terms Heads of terms should be carefully reviewed and instructions must be obtained when there is any ambiguity.

Deduction and investigation of title It is usual for the seller’s solicitor to deduce title to the buyer’s solicitor, who must build a picture of the property, including its physical nature and any adverse matters affecting it. This will typically involve the buyer’s solicitor doing the following: • Reviewing all title documents; • Conducting searches: standard searches include searches of Land Registry, the local authority, water and drainage providers, highways and environmental authorities.

Other searches may be required depending on the location of the property, such as HS2, London Underground or Flood; • Requesting replies to Commercial Property Standard Enquiries – there are several different sets of enquiries depending on the nature of the property. Additional enquiries should be raised as appropriate; • Reviewing the buyer’s survey and valuations; and • In some cases a site visit will be appropriate.

In larger transactions the seller’s solicitor may produce a certificate of title for the buyer and

20 The Bill of Middlesex

their lender. This is a set of factual statements about the property upon which the buyer relies and which is backed up by a series of representations and warranties.

10%). Prior to exchange the buyer’s solicitor should conduct a bankruptcy/company search of the seller to ensure that it has legal capacity to enter into the contract.

Finance

Prior to completion, the buyer’s solicitor should do the following:

Where the buyer is obtaining finance for the acquisition, the bank also needs to satisfy itself as to title to ensure that it will obtain adequate security over the property. Lender’s will often have their own solicitor to investigate title who will either review and negotiate a certificate of title prepared by the seller’s solicitors or who will prepare its own report on title. Both processes inevitably have an impact on timing so it should be ascertained at the outset of the transaction whether funding is required.

Transactional Documents The seller’s solicitor prepares the contract. This may be conditional on matters such as: • obtaining planning for the buyer’s proposed use of or works to the property; • the seller obtaining vacant possession of the property; or • (in the case of a leasehold property) obtaining landlord’s consent to the transfer.

A transfer deed will also be required. If the seller is retaining some of the land there will usually be covenants in the deed to protect the seller’s use and enjoyment of the retained land. Care should be taken when drafting the transfer and specific instructions received from the client.

Depending on the nature of the property, other documents may also be required such as: • warranties – in the case of new build properties, warranties should be granted directly to the buyer by all contractors. Any existing warranties should be assigned to the buyer (and lender); • deed of assignment of rent deposits/arrears (in the case of multi-let properties); • rent authority letters to tenants informing them of the change of landlord; and • letters of reliance addressed to the buyer in respect of reports which the seller has the benefit of.

These form of these documents should be agreed and attached to the sale contract prior to exchange.

Exchange and completion At exchange the transaction becomes legally binding. A deposit is paid by the buyer (typically

• raise pre-completion requisitions with the seller’s solicitor; • carry out a priority search at the Land Registry to ensure that the title to the property has not changed during the course of the transaction. The search result effectively “freezes” the title for 6 weeks in favour of the buyer (“the priority period”); • agree a completion statement with the seller’s solicitor – any income from tenants will need to be apportioned between the buyer and seller; • liaise with any lender to ensure that funds will be available at completion; and • agree undertakings with the seller’s solicitor to deal with completion matters such as obtaining appropriate discharge documents from any existing lender.

The seller’s solicitor should liaise with any existing lender to obtain a redemption figure.

The timing of completion is often critical, especially if the property is subject to an existing charge. The seller will need to ensure that funds are received from the buyer in time to transfer them to the lender in order to discharge the charge on the completion date. The completion time is stated in the contract (typically between 1-2pm). If funds are received by the seller after this time but still during banking hours, completion is deemed to take place on the next working day. The buyer will be liable to pay interest on the purchase price (less any deposit paid) at the rate specified in the contract.

Post completion The buyer’s solicitor must do the following: • pay any Stamp Duty Land Tax (SDLT) due and submit the SDLT return within 30 days of completion. There are penalties for late filing/payment; • submit the necessary Land Registry application with the relevant priority period; • if the property is leasehold, comply with registration requirements in the lease There may be additional post completion/notification requirements depending on the nature of the property.

property

SEARCHFLOW IS COMMITTED TO MAKING LAWYERS’ LIVES EASIER. We do this by providing a market-leading, trusted conveyancing search service enhanced by a total focus on customer service excellence.

As busy legal professionals, conveyancers expect more from their search provider – a single-touch point providing access to industry insights and expertise, training, and peer networks. It’s why SearchFlow is constantly developing dynamic and interactive channels to provide added-value support.

Supporting the industry through education SearchFlow’s programme of free regional CPD seminars underpins our commitment to maintaining the highest standards within the legal sector – through industry education.

Working in partnership with other experts – including Landmark, GroundSure, 360 Legal Group, DevAssist and Legal Eye - our seminars cover a wide range of property-specific topics and offer attendees three CPD points.

Additionally, SearchFlow’s webinar series comprises a one hour complimentary version of our modules online, worth one CPD point, enabling conveyancers to access learning quickly and conveniently.

Industry updates in one click

Supporting the industry

Making lawyers’ lives easier shapes how we work. We want to ensure the right information is at lawyers’ fingertips. Our website brings the latest news and industry insights, helping lawyers guide their clients through the best decisions when making property transactions.

Through our quarterly Conveyancer Sentiment Survey, run in conjunction with the Law Society Gazette, we share the issues at the forefront of the sector, giving conveyancers access to their peers’ thinking and concerns.

Taking conversations to the next level

SearchFlow is constantly exploring new ways to support conveyancers and drive the highest professional standards. Through the SearchFlow Partner’s Forum (SPF), sector leaders share the latest thinking on compliance, regulation and trends, allowing customers to benefit from industry expertise at the highest level.

Elsewhere, through our Commercial User Groups, we are creating an ongoing dialogue around the issues impacting specialist commercial conveyancers, exploring how SearchFlow can improve the way we work with them, continuously listening and responding to their needs.

SearchFlow’s new Conveyancer Community - the first of its kind – provides an innovative online forum for like-minded lawyers. The platform enables conveyancers to engage with peers, discuss industry developments, share knowledge and ask questions on the topics they care most about.

If you are a conveyancer looking to take your business to the next level, adapt to the changing dynamics within the sector and embrace new ways of working, SearchFlow’s expert resources could bring you one step closer.

Join the conversation at www.searchflow.co.uk.

The Bill of Middlesex 21

news

Is your clients Entrepreneurs’ Relief at Risk A successful business is one that grows. While there may be periods when all of a business’s assets are required for trading activities, there may be times, often later in the life cycle of a business, when a business holds surplus cash.

As well as being unattractive for businesses due to low interest rates, holding surplus cash and non-trading assets may also present problems around taxation.

Where a company is sitting on a high level of cash HMRC could restrict the amount of assets on which BPR is available to a shareholder upon their death, meaning that there could be a significant inheritance tax charge for the estate or beneficiaries to meet. HMRC may also deny a shareholder Entrepreneurs’ Relief when they come to sell their shares. This means that capital gains tax could be payable at the full rate (currently 28%).

The problem Alice, 56, owns her successful chain of florists in the South-West worth around £2 million. Some years ago she took her business online allowing her to expand significantly and since then she has built up considerable cash, of around £700,000, within the business. Following approaches from two national firms, she is planning to sell her company.

Her accountant has informed her that she will be liable to pay CGT on the proceeds and that, as she holds more than 20% cash in the business, this is likely to be at the 28% rate rather than the 10% rate, which would be available through Entrepreneurs’ Relief. Since 6th April 2011 the maximum lifetime limits on Entrepreneurs Relief is at a tax rate of 10% on the first £10 million.

Potential solution

HMRC should accept that full Entrepreneurs’ Relief is available, so that Alice’s CGT rate is reduced to only 10%.

Summary When clients are thinking of selling their business it is essential for them to plan ahead and ensure they do not fall foul of something as simple as holding too much cash and jeopardising the availability of Entrepreneurs Relief and BPR. Forward planning offers time to make simple changes that can help ensure the most financially beneficial outcome.

This case study is provided for illustration purposes only and based on our understanding of current legislation.

The value of investments can fall as well as rise. BPR Solutions can be high risk and you can lose some or all of your money.

Following advice, her business decides to commit £400,000 to a BPR solution which is specifically designed for business owners. This is deployed in qualifying trading activities.

This article is intended for qualified lawyers and solicitors and is not to be distributed to retail clients.

When Alice eventually decides to sell her business at least one year later, it has over 80% of the trading value of Fantastic Flowers in qualifying business assets.

by STEVEN VALLERY, Business Development Director S4 Financial Ltd. Contact: 0127634932

Secure the future of Kew Gardens For over 250 years, the Royal Botanic Gardens, Kew has led the world in plant and fungal science. Today, from our World Heritage site at Kew and the gardens and Millennium Seed Bank at Wakehurst Place, we are finding innovative solutions to global challenges. centuries; over half a million library and archival records and an 85,000-strong Economic Botany Collection illustrating human uses of plants for food, medicine, clothing and social activities.

You know Kew as a beautiful local attraction, but did you know that Kew...

•

is home to three art galleries, a library and a museum?

Our collections include more than 200,000 prints and drawings, encompassing world-class botanical art and illustration from the 18th-21st

22 The Bill of Middlesex

•

employs hundreds of scientists?

Our Jodrell Laboratories, Millennium Seed Bank and Herbarium are home to experts who discover and explore plants and fungi from around the world, investigating new sources of food, fuel and medicine to meet the demands of our growing population.

•

has offered formal horticultural training since 1859?

Our apprentices, students and alumni enrich British and international horticulture, as well as our two gardens, which are enjoyed by over a million visitors each year. They stimulate curiosity, provoke debate, celebrate beauty and inspire a love of the living world.

If your clients love Kew Gardens or share our passion for inspirational horticulture, cuttingedge science, botanical art, heritage landscapes or global plant conservation, Kew Foundation (RCN 803428) is the perfect home for their legacy gift.

Contact: Kerry Watts on 020 8332 3249.

Allied Irish Bank (GB) and Allied Irish Bank (GB) Savings Direct are trade marks used under licence by AIB Group (UK) p.l.c. (a wholly owned subsidiary of Allied Irish Banks, p.l.c.), incorporated in Northern Ireland. Registered Office 92 Ann Street, Belfast BT1 3HH. Registered Number NI018800. Authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority.

AIB1 LJ

news

The Law Society's conveyancing portal, Veyo - a joint venture with global technology company Mastek UK - is set to revolutionise the home buying process. Unveiled to the law and conveyancing community last month, and in the final stages of development, it is scheduled to launch officially in Spring 2015.

In this article, Elliott Vigar - head of commercial investments at the Law Society and CEO of Veyo - tells us how plans are progressing, ahead of the launch next year, and what the conveyancing market can look to expect during the first phase of the launch.

There has been a lot of talk about the Law Society's plans to create a new portal for conveyancing for many years now.

Today, I am pleased to unveil ‘Veyo’ a portal which uniquely brings together all the processes, checks and documentation prepared and undertaken by solicitors and licensed conveyancers in the sale and purchase of residential properties.

In its first phase, the system will allow professionals to better communicate with each other, clients and other parties, satisfy due diligence obligations more quickly and facilitate the conveyance of residential property through established protocols. In doing so, it will not only speed up the house-buying process for consumers, but enable greater efficiency for conveyancers.

Key benefits to conveyancers • Veyo saves time by streamlining businesses processes • Veyo is secure, providing a clear audit trail of communications between all parties in a transaction • Veyo offers transparency at every stage of the conveyancing process providing all parties with up to the minute information on a transaction • Veyo enables clearer communication with customers • Veyo is the smart way to service clients, providing a secure area to upload and documents • Veyo has been designed by conveyancers for conveyancers

24 The Bill of Middlesex

How Veyo will work Users are presented with a dashboard that will show all active cases and their respective status. Each case will have a dedicated screen showing a detailed overview of progress towards completion.

A calendar will show scheduled tasks, key dates and reminders. Other pages offer complete visibility of the sales chain, by providing users with an overview of all their transactions, messages and activities to help keep all cases on track.

The online ‘deal room’ for any particular case will allow the two firms acting for the buyer and seller to collaborate and progress documents efficiently, with an automatic audit of all changes, versions and approvals captured for each case.

The ‘chain view’ will show the exchange / completion status of each property in the chain online.

Veyo users can verify individuals working on the other side of the transactions who must have pre-qualified to be able to use the portal. It will also be possible to carry out anti-money laundering checks with Veyo. Land Registry applications will be available from the launch date, with the integration of searches and HMRC transactions within Veyo also planned for subsequent service releases after the initial launch.

About the development of Veyo and security The Law Society chose to invest in a joint venture company in order to build the longstanding relationship necessary to deliver an IT platform of such size and complexity, as well as to ensure that our stringent requirements for resilience and security were met.

Following in-depth consultations with all parties involved in residential property conveyancing, the end result is a portal that is intuitive to all parties, including all the key features needed to effectively speed up and streamline the conveyancing process, within a secure and trusted community.

Veyo will allow conveyancers to communicate and exchange information seamlessly with each other, their clients and other key stakeholders. It will also provide a level playing field for smaller firms competing with larger, more technologically-enabled firms. The portal will put solicitors and conveyancers at the core of what we aim to become - the ubiquitous process for buying and selling residential property in England and Wales.

Who will Veyo be available to?

Veyo will be open to all conveyancing professionals – both in firms with and without Conveyancing Quality Scheme (CQS) accreditation, as well as licensed conveyancers – who must all meet an equivalent standard for entry. It is proposed that the standard will at least equal the level of scrutiny required for CQS accreditation; we see the portal as the next stage of the CQS concept, taking it from a way of denoting a firm's quality, to a way of spreading that quality standard across the profession and the conveyancing process. The portal will only be a success if all conveyancing professionals have access to it, trust the community within it, and can enjoy the benefits that it will bring to them and their clients.

If you want to know more...

Our partner, Mastek UK, brings with it the pedigree and talent of a global IT solutions company, and significant experience of handling highly sensitive client data. Security and data protection have been priorities for us in the technical design and will be subject to rigorous testing prior to launch.

• Register for interest on the Veyo website: veyo.co.uk, where you will receive regular updates about the new portal and have the opportunity to trial the system before it launches in Spring 2015.

practice management

Not a week seems to go by these days without more speculation in the legal press about how uncertain the future is for small firms, sole practitioners and those in legal aid practice.

For organisations like SBA the Solicitors’ Charity, however, it’s clear that starker times arrived quite some time ago.

SBA Beneficiary Secretary Dervilla Carroll explains, “We regularly take calls from solicitors affected by redundancy and shorter hours. In many cases, all their savings have been used up, the home is on the verge of repossession or already gone and debts are spiralling out of control. It’s not unusual to see people sofa-surfing, living in temporary bed-and-breakfast accommodation or moving back to live with an elderly parent.

One former partner is currently living in his car while trying to sort out job interviews.”

It’s obviously not pleasant to muse on what it’s like to move from comparative prosperity to £72.40 a week, the level of Jobseeker’s Allowance. However, some of the research shared by LawCare suggests that lawyers are uniquely well qualified in the art of denial.

Solicitors who are buried in the detail of heavy workloads and managing their own clients’ expectations don’t necessarily recognise when they themselves need to ask for help. As professionals who excel at taking control in chaotic situations, solicitors are often overwhelmed when, despite their best efforts, they cannot influence a particular outcome. Professional and personal relationships start to crack and, as both SBA and LawCare know only too well, families can blow apart as a result.

Many applicants advise that they have known about SBA for most of their professional lives.

However, the charity is often

associated with more traditional types of support for older or disabled people. SBA does of course still help former colleagues but, as the profession’s own charity, it has also geared services in readiness for market contraction. One new pathway is to provide free careers support, underpinned by short-term financial help to boost people’s chances of getting back into work, either in the law or not. Subject to a confidential test of income and savings, solicitors who qualify for financial assistance can join a three-month programme which offers holistic career, job search and wellbeing support, all provided by a single professional consultancy. SBA also wants to help create financial breathing space for colleagues who need that extra bit of support at the right time – for example, covering the costs of removal expenses for a family looking to downsize their home.

The next few years could well be grim for many in the profession but, with support organisations standing by to help, it is possible to see some light at the end of the tunnel. Don’t wait to hit crisis-point – act now.

Visit www.sba.org.uk for further information, telephone 020 8675 6440 or email bensec@sba.org.uk

26 The Bill of Middlesex

legacies

LEAVING A LEGACY TO CHARITY Including a gift to charity in a will is a great way to make a difference and there are also tax benefits.

Legacies are an important source of income for many charities and the voluntary sector received around ÂŁ2billion in legacy income in 2011/121.

However, this is only 5% of total income and the number of people who leave legacies to charity may be only 7%2.

be property, shares or land or other things. It’s worth providing for what happens if the possession is sold during the client’s lifetime.

Solicitors and other will writers can play a role in changing this. A study carried out by the Cabinet Office Behavioural Insights Team, published in 2013, found that when will writers mentioned the possibility of a leaving a legacy to charity, the percentage who did this rose from 4.9% to 10.8%, and that this increased to 15.4% when people were asked if there are any causes they are passionate about3. This suggests that asking people at the right moment whether they want to leave a legacy is important and so is the way in which the question is asked.

Types of gift A cash gift, or pecuniary legacy, is a straightforward option. But the effects of inflation could mean the ultimate value becomes less than intended. This problem can be dealt with by updating a will regularly, or linking the cash legacy with inflation.

C a si mp nc a e ign 18 in 65 g

Another possibility is a gift of individual possessions, known as a specific legacy. This might

If a client would like a charity to benefit more significantly, an alternative option might be a residuary legacy. This involves giving a proportion of an estate to charity after expenses and any pecuniary and specific legacies have been paid.

Drafting the will It’s important that a charity is properly identified in the drafting of the legacy and its full name, address and registration number should be included. This information is available from the Charity Commission for charities in England and Wales, the Office of the Scottish Charity Regulator for Scottish charities and the Charity Commission for Northern Ireland for Northern Irish charities.

Many charities have a section on their website with template wording for legacies.

A legacy can be given for specific activities of the charity, subject to an expression of wishes or binding obligations. The risk of including a binding obligation is that the legacy could fail if the charity isn’t able to use the legacy for the purpose. A letter setting out the client’s wishes provides more flexibility and is often a better option. The trustees of the charity should take the wishes into account, but are not bound legally to follow them.

You should also consider what happens if the charity beneficiary ceases to exist.

If this is the result of a ‘relevant charity merger’ under the Charities Act 2011, and the merger is entered in the Charity Commission’s register of charity mergers, the legacy will usually take effect as a gift to the successor charity. However, a legacy may fail if the wording provides that the charity must be in existence at the date of the testator’s death.

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If a legacy intended for a charity fails, the property will become part of the deceased’s residuary estate.

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Tax benefits There is no Inheritance Tax (IHT) on gifts under a will to charities or community amateur sports clubs (CASCs). Legacies to overseas charities are not exempt from IHT. But gifts to an organisation within the EU do now qualify, if the organisation would qualify for charitable status if it was based in the UK.

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The value of a gift to a charity or CASC will be deducted from the estate before IHT is calculated. In

Rebecca Fisher and Chris Rowse are both at RussellCooke solicitors. Rebecca is a Partner in the Private Client Team and Chris is a Senior Associate in the Charities and Social Business Team. some cases this may bring the total estate value below the taxable threshold, which is ÂŁ325,000 for 2014/15.

Where an individual leaves more than 10% of his or her net taxable estate to charity, the estate will benefit from a 36% rate of IHT, which is a 10% reduction from the usual rate of 40%.

Charities are not liable to capital gains tax (CGT). If the executors sell assets a CGT liability may arise against the executors. This can be avoided by appropriating the assets to a beneficiary charity as the executors will then sell as bare trustees. If the asset is land it will be necessary to comply with provisions in the Charities Act 2011 concerning the disposal of charity land.

Final tip It’s a good idea to encourage clients to let a charity know that they should benefit from a legacy under a will, as this helps charities to plan ahead.

Rebecca Fisher and Chris Rowse are both at RussellCooke solicitors. Rebecca is a Partner in the Private Client Team and Chris is a Senior Associate in the Charities and Social Business Team.

August 2014

Footnotes 1

2

3

The UK Civil Society Almanac 2014, NCVO (http://data.ncvo.org.uk/a/almanac14/ how-much-does-the-voluntary-sectorreceive-in-legacy-income-2) Remember a Charity ‘Why Leave a Gift in Your Will’ (http://www.rememberacharity.org.uk/why -leave-a-gift) ‘Applying behavioural insights to charitable giving’ (28 May 2013), Cabinet Office

legacies

A LEGACY THAT LASTS FOREVER You know better than most that clients have all kinds of reasons for remembering a charity in their will. One of the most important is the desire to pass on the things they care about to the next generation - their children and grandchildren. They want to know their gift will last and still mean something years from now.

Houses like Knole in Sevenoaks, vast areas of the Lake District, even the White Cliffs of Dover – have all been supported by gifts left in wills.

Every time someone leaves a gift to the National Trust in their will, they’re playing a direct part in helping to look after special places for future generations to enjoy. We’re a charity, not funded by the government, so we depend on memberships and donations, especially gifts in wills, to keep 350 historic houses and gardens, and miles and miles of glorious countryside and coastline in England, Wales and Northern Ireland open for everyone to enjoy.

Protecting the places they love.

Your client may have a favourite National Trust place they want to protect, such as a stretch of coastline, a woodland, garden or historic home that is close to their hearts.

They can specifically request that their legacy

goes towards looking after their special place. Or, they can decide to give their legacy to the National Trust to spend wherever the need is greatest.

they wish. And by leaving a gift to the National Trust, they’ll be playing a vital part in making sure the places they’ve loved and enjoyed live on for ever, for everyone.

You can trust us to honour your client’s wishes.

We only ever spend legacy income directly on projects or conservation work, which means that every penny of your client’s legacy will be spent exactly where and as

There are also other ways of supporting our work, such as tax effective charitable trusts and foundations – please get in touch if you would like to find out more.

Solicitors like you have helped clients remember the National Trust in their wills and secured the future for places like the White Cliffs of Dover.

The Bill of Middlesex 29

legacies

STRAY DOG NUMBERS RISE IN SOUTH EAST The 2014 annual Dogs Trust Stray Dogs Survey launched this month revealing that 9,419 stray and abandoned dogs were handled by local councils across the Meridian region between 1st April 2013 and 31st March 2014. This represents a 2% increase from the 9,200 dogs handled during the same period last year. But would you know what to do if your dog went missing?

Rather worryingly, 64% of owners in the South East were unaware that it is the Local Authority’s responsibility to pick up and care for missing strays.

A further 75 per cent of respondents were also unaware that they had only seven days to recover a missing dog once he/she is in local authority care before ownership can be transferred to a new owner or they are potentially put to sleep if a new home cannot be found.

On average, dog owners thought they had 15 days to recover a missing dog, more than double the official time allocated – a figure which could help account for the 378 dogs in the Meridian region that were unnecessarily put to sleep this year. Although Local Authorities continue to encourage responsible dog ownership and do not want to put dogs to sleep, they do struggle to cope in this difficult economic climate.

Clarissa Baldwin OBE, Chief Executive of Dogs Trust says: “The number of instances of straying on our streets is declining in the UK as a whole, but we still have a significant job to do when it comes to raising awareness about responsible dog ownership. Owners are unsure of who to reach out to and how much time they have to recover their dog should he or she go missing. Microchipping not only helps speed up the process of reuniting an owner with their dog, it is also significantly reducing the number of strays overall. We’re calling on dog owners across

Photograph © Brian Young

the UK to come along to one of our free microchipping events at www.chipmydog.org.uk so that we can continue to improve the situation ahead of the change in law in Wales in 2015 and England in 2016 which will make microchipping compulsory.”

Who’ll keep him happy when your client’s gone?

We will – as long as your client has a Canine Care Card. It’s a FREE service from Dogs Trust that guarantees a bereaved dog a home for life.

At Dogs Trust, we never put down a healthy dog. We’ll care for them at one of our 18 rehoming centres, located around the UK. One in every four of your clients has a canine companion. Naturally they’ll want to make provision for their faithful friend. And now you can help them at absolutely no cost. So contact us today for your FREE pack of Canine Care Card leaflets – and make a dog-lover happy.

Call

020 7837 0006

Or e-mail

today

ccc@dogstrust.org.uk

Or write to: Dogs Trust, Canine Care Card, FREEPOST WD360, 17 Wakley St, London EC1B 1NA (no stamp required) Please quote “DTSL”. All information will be treated as strictly confidential.

This service is currently only available for residents of the UK, Ireland, Channel Islands & the Isle of Man

www.dogstrust.org.uk Registered Charity Numbers: 227523 & SC037843

30 The Bill of Middlesex

legacies

NOTCHED UP AND HOMEMADE – DIY COULD ENDANGER A LEGACY There’s around 15.5 million invalid or poor quality Wills in the UK. That racks up to an astonishing 70% of all Wills written, which could mean hundreds of thousands of intestacy cases where beneficiaries are missing, or estates thought to be destined to a friend find their way to distant family.

These statistics revealed by the 2013 Will Aid survey highlight the growing danger of homemade Wills, often resulting in invalidity due to inadequate witnesses. The research discovered around three million have a Will that’s either homemade or assembled from a DIY kit, and a further 12.5 million whose say in the future of their estate may be out of date. In fact, there’s almost 28 million adults – that’s over half of the population – who have yet to even write one.

– who was also appointed the sole executor of her estate and ultimately one of two heirs. Not only did this invalidate the Will, but the family’s barrister told the court that Helena had gone into a “catastrophic mental decline” after losing her husband and brother within a year, and so was also invalid as it was ruled she could not have known or approved it. Her legacy was therefore treated with the rules of intestacy, and passed across to her next-of-kin. Shelley and Steven Kimms did not see a penny.

With so many knowing in their minds where they would like their estate to travel after they pass on, but without having committed that destination to paper, loved ones can lose out.

Locating missing beneficiaries is at the heart of our business, but alongside this we can conduct Asset and Will searches, as well as provide Missing Will and Missing Beneficiary Insurance to cover all eventualities. With over 90 years of experience, our expertise and access to information means there is nobody better placed to undertake your research in such a timely and cost-effective manner. When it comes to administering an estate and taking care of your client’s legacy, we understand that each case is unique and can provide a bespoke service to suit your needs.

That happened in the case of 81-year-old Helena McKae*, who left her £300,000 legacy to next-door-neighbours, Shelley Kimms* and her husband. According to Shelley, Helena felt as though her family did not “pay her enough attention” and so severed all ties to her next-of-kin.

However, after she passed away in 2010, Helena’s niece contended that her aunt lacked legal capacity to execute a Will.

It was discovered there was just one witness to the Will – Steven Kimms*

* Names changed for confidentiality purposes.

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The Bill of Middlesex 31

film

FILM and the LAW No 25 The Two Blonde friends and the Hangman

by VINCENT MCGRATH vmfilmnite@googlemail.com 020 8579 5330 07877 551442

The Two Blonde friends and the Hangman Contrary to popular belief those of us on the Home Front during the War weren’t all digging for victory on our allotments. Shortages and rationing brought out the worst in some sections of the community. There was the growth of the local spiv who traded in scarce commodities such as food and clothes. Nylons were their speciality, particularly with the arrival of the Yanks.

Higher up the scale were gangsters, who were behind lots of big scale crime including the infamous raid on a government ration book warehouse, which can you believe was never solved. So someone somewhere may have a garage full of ration books still in pristine condition and ready for sale on …..er….ebay? More seriously, guns were easy to obtain, and people were ready to use them. With the breakdown of society, there was some intermingling of the classes through the blossoming of nightclubs particularly in Soho. Show biz people struck up some unlikely friendships with members of the underworld, MP’s and Lords of the Realm. Also of course, just about anyone who was anyone was chummy with the Krays and had a snap in their wallet to prove it.

Peace had little effect on shortages, with Britain shivering and starving its way into the 1950’s. For most people austerity still reigned, but it seemed there was always the few that seemed to prosper. “It’s not what you know. It’s who you know.

Doncherknow” was a popular saying at the time.

People believed that if they could only make the right connection with the right person, their life would be hunky dorey.

Ruth Neillson was born into humble circumstances in North Wales, and sometime during the War, the family moved to London. Ruth left school at 14 and got a job as a waitress. This led to hostess jobs in pubs and later clubs. Given the homogeneity of the club scene she started mixing with people outside her circle and apparently given her looks and personality she was never short of work. After dabbling in singing, modelling and prostitution she became established with a wide circle of friends that included film stars and motor racing drivers like Mike Hawthorne – the Lewis Hamilton of his day. Things were on the up for young Ruth.

Diana Mary Fluck was born in Swindon in 1931 which made her 5 years younger than Ruth. Her birth was such that both herself and her mother nearly died.

The result was that Diana had everything that her mum could buy lavished upon her - Toys, clothes, ballet & singing classes. Eventually through lying about her age she became RADA’s youngest ever drama student, and by 1951 Diana was a household name but not as Diana Fluck. When signing yet another film contract, it was suggested she consider changing her name. As Diana put it many years later, They asked me to change my name.

I suppose they were afraid that if my real name Diana Fluck was in lights, and one of the lights blew....

32 The Bill of Middlesex

No 1, in the Old bailey, before Mr justice Havers (Nigel’s grand-dad) she said in answer to the prosecution’s only question, “It’s obvious when I shot him, I intended to kill him.” The defence had a team of three led by Melford Stevenson, who had a reputation of being somewhat eccentric bordering on the authoritarian and lacking experience of criminal law. It is also more pointedly, alleged that he lacked empathy with women. He seemingly colluded with the prosecution in keeping the trial on the short side, and has gone down in legal history for his statement, “There is no question here that this woman shot this man. You will not hear one word from me or the lady herself questioning that.” One has to ask with defence counsel such as Melford Stevenson, who needs prosecutors? When he retired to the South Coast to write his memoirs, it came as no surprise that he named his palatial residence, “The Truncheons” The jury took exactly 23 mins to return a verdict of guilty which triggered the macabre black cap procedure prior to the pronouncement of the death sentence. From the Bailey Ruth was taken to the condemned cell at Holloway to await execution.

Diana Dors She took her grandmother’s surname of Dors.

When Diana Dors first met Ruth, Ruth was married and had also changed her surname. Ruth Ellis as she was now known, had put hostessing behind her, to become the manager of the up market Carroll Club.

Diana knew Ruth to be ambitious and consequently got her a small part in a new film called Lady Godiva Rides Again (1951) free on line. Sadly Ruth’s brief flirtation with the movies was not a great success and neither was her marriage. She had by now become smitten with a fellow racing driver of Hawthorne called David Blakely - a posh boy who liked drinking and womanising.

Blakely was engaged and Ruth was still married. She lived alone above the club, and Blakely soon moved in but the relationship was tempestuous, resulting in Ruth being knocked around a lot, due to Blakely’s drunken jealousy. On one occasion he hit her so hard that she had a miscarriage.

Eventually in a fit of jealousy due to Blakely’s philanderings, Ruth got a gun from a friend and shot David 6 times outside the Magdala pub Hampstead. She surrendered to an off-duty policeman, who happened to be passing, saying, “I am guilty. I am a little confused.”

She was interviewed at the police station by three senior officers but without a solicitor present, and neither did she have legal representation in the magistrate’s court. No evidence of insanity was found by either the defence psychiatrist or the prosecution’s. At court

Despite defying her lawyers’ advice not to dye her hair blonde during the trial, in case it made her look like a common hussy, the prospect of executing such a young woman still filled a large minority of the public with revulsion. That being said, it is probably right that the majority of the country, whipped up by the popular press, was in favour. As you would expect, there were demonstrations both for and against the hanging in Downing Street and outside the prison. It became such a big public issue that even Raymond Chandler, of Philip Marlowe fame, wrote to the Evening Standard describing the proposed hanging as the

Lady Godiva Rides Again (1951)

film “medieval savagery of the law” Two factors contributed to Ruth’s eventual demise. Firstly Ruth was not co-operative with her lawyers, and secondly it is generally acknowledged that her lawyers in turn could have done better.

Whereas it was accepted by both sides that she wasn’t insane, the defence could well have dug deeper with regard to other aspects of her health. For example Ruth is thought to have had about 4 abortions and at least two miscarriages but non of this evidence was brought to the attention of the court. Whilst diminished responsibility did not become law till 2 years later (S3 Homicide Act 1957), medical evidence could still have formed part of an appeal or reprieve if it had first been adduced as evidence during the trial. The foreign press had a field day of course in that the law of the cold loveless English did not allow for the plea of crime passionnel - murder committed in a fit of sexual jealousy. Also the question of the gun did not form part of the evidence save that Ruth claimed she had kept it in a drawer for years which of course was patently not true. Her friend Desmond Gusson with whom she had also been having an affair gave it to her and furthermore showed her how to use it. Her lawyers eventually upon hearing the truth about the gun, made strenuous efforts to bring it to the attention of the Home Secretary. Unfortunately the attempt misfired, and the reprieve was rejected on the grounds that obtaining the gun beforehand from her friend demonstrated premeditation which of itself inferred greater guilt. The Home Secretary went on to say, given that a member of the public received a slight shrapnel injury to her thumb during the shooting, “We cannot have people shooting off firearms in the street. As long as I am Home Secretary I am determined to ensure that people can use the street without fear of a bullet.”

Ruth’s fate was sealed, to invoke the time honoured cliche. It has been said that Ruth was an angry young woman at a time when Angry Young Men were de rigeur and the height of fashion. She clearly wanted more from life than life could deliver.

13/07/55. Execution Day. It was raining & Ruth was 28.

Albert Pierrepoint the executioner claims Ruth turned and smiled at him just before he placed the hood over her head. Later he went to great lengths to tell Ruth’s mother how courageous Ruth had been. One wonders just what he meant by the word courageous and why he wanted to contact Ruth’s mum in the first place?

And what of Ruth’s friend Diana? There is no record of Rank’s answer to Marilyn Monroe visiting her condemned friend in Holloway, but within eleven months of Ruth’s death a film was on the country’s cinema screens called Yield to the Night (1956) free on line. It told the story of a Mary Hilton awaiting execution, and playing the murderess was non other than the blonde bombshell Diana Dors! Was this a case of the film industry cashing in on a case that was still uppermost in the public’s mind or simply a coincidence? The first treatment for the film was actually written by the director’s wife, and former jailbird, Joan

Diana Dors and Yvonne Mitchell in Yield to the Night (1956) Henry several years before Ellis carried out the killing, so it is reasonable to assume that it was a coincidence, albeit in the scheme of things, a bizarre and eerie one.

The casting of the de-glamorised Diana who bore a more than a passing resemblance to the deceased nightclub hostess must have struck disturbing images in the mind of the British public. The eerie confluence between these fictional and real life tales of crimes passionnels must have seemed more than a mere coincidence.

The film, although critically acclaimed, and greeted with rapturous applause at the Cannes Film Festival, is now more or less forgotten. Critics remarked upon the surprising quality of Diana’s acting. The reality of course was that the Blonde Bombshell could act and had been doing so in 29 films since 1947 – an average of three per year. It was just that she had been starved of parts that would have displayed her talent. Blonde maybe, but certainly not Dumb. She was famous for her wise cracks such as, “I am the only sex symbol Britain has produced since Lady Godiva.”

Yield to the Night was popular with audiences.

Some cinemas organised discussions on capital punishment after the screening whilst others had more traditional ballyhoo such as Diana Dors Look Alike Competitions - the winner going home with a state of the art washing machine. The film has lots of scenes to commend it, not least of which is the prison doctor daily bathing and bandaging Diana’s foot blister caused by the prison issue shoes. There is a queasy irony that so much attention is paid to a tiny blister, as though the state must be sure it is sending a perfectly healthy body to its death. Through out the film, the condemned woman is haunted by a poem she learnt as a child, About the woodland I will go to see the cherry hung with snow. The director J Lee Thompson who was clearly against capital punishment, said that, “You must take somebody who deserves to die and feel sorry for them, and then say this is wrong. In Yield to the Night we made it ruthless pre-medicated murder.”

having her hands tied behind her back. She then walks straight at the camera which fades to black. The camera re-opens on the half smoked cigarette still smouldering, while its smoker is herself being extinguished. The cigarette remains sitting precariously on the edge of the ashtray, but the director resists showing it fall which of course it inevitably will. Fade to black. The End. It is not hard to understand why the French cinephiles gave this English crime passionnel film a standing ovation at Cannes. Such aficionados of the silver screen simply can’t get enough of such visual metaphors, or as they would put it, mise en scene.

Apparently in real life, Ruth Ellis, took off her spectacles, slowly folded them, and then placed them on the table.

She turned to the hangman Albert Pierrepoint and said, “I won’t be needing those anymore.”

One wonders which option the director would have chosen to shoot, had he been presented by the screenwriter with alternative endings. Either (1) The fictional smouldering cigarette or the (2) The real life spectacles.

Morrissey noted that Ruth should be seen as a passionate and angry young woman at a time when Angry Young men were de rigeur and at the height of fashion. She was in a sense ahead of her time in that she wanted more from Life than Life was willing to give her.

After the execution Ruth’s mother attempted suicide with coal gas and was never able to speak again. Ruth’s husband, George, hanged himself, whilst her son committed suicide after desecrating her grave.

Diana married 3 times and died of cancer at 52.

She left her fortune to her son via a secret code in the possession of her third husband Alan Lake who killed himself shortly after Diana’s death. The code was never found and the whereabouts of the fortune remains a mystery.

The last hanging took place in the UK in 1964.

The final scene has Diana carefully putting her partially smoked cigarette on an ashtray prior to

The Bill of Middlesex 33

management

TACKLING ECONOMIC CHANGES

by Paul McCluskey PAUL MCCLUSKEY, HEAD OF PROFESSIONAL PRACTICES, SME BANKING AT LLOYDS BANK COMMERCIAL BANKING, COMMENTS ON HOW LAW FIRMS CAN ENSURE THEY HAVE A FLUID CASHFLOW IN PLACE TO TACKLE ANY ECONOMIC CHANGES THEY MAY FACE. As the economic recovery continues, many analysts are predicting that interest rates will rise in the foreseeable future, prompting questions about the level of impact such an increase could have on the professional services sector.

However, whether a rate increase occurs or not, the fact remains that law firms should always strive to achieve streamlined and efficient management of their financial affairs, leaving them well placed to thrive with a solid cashflow in place, no matter what economic conditions they face.

In order to ensure a strong focus on good financial behaviours which will safeguard the interests of a law business, it’s important to maintain rigorous control over budgets, expenditure and working capital, whilst impressing the view that everybody within a business has a responsibility for the efficiency of its running.

Drawing upon the team’s in-depth analysis, businesses are best placed to take preventative measures in the event of reduced cash flow, and install corrective procedures to collect fees, improve billing, and ultimately reduce the debt exposure of working capital overdrafts.

The good news for law practices is that the outlook is relatively positive. According to the Law Society Financial benchmarking survey 2013, fee income has increased by a median of 4.1%, and the interest paid to firms has increased by 24% against a backdrop of declining deposit rates, demonstrating how more client money is being paid through banks.

This responsibility comes in line with the principles outlined by the Solicitor’s Regulation Authority (SRA) Code of Conduct, which calls upon its members to act with integrity, and in a manner which upholds the rule of law, without allowing the independence of a firm to be compromised.

Looking further ahead, the survey has indicated that fee income rises are set to continue to rise by 3.7% by the end of the year. So how does this impact on firms and their financial practices?

It’s a key consideration which ensures that companies always act in the best interests of each client, helping to maintain confidence in the sector by going to all necessary lengths to protect their money and assets.

The answer, simply, is that businesses can reap the benefits of a system that relies more heavily on good governance rather than borrowings. It’s important to ensure that effective cash management measures are in place, including robust management accounts, a commitment to working within pre-defined budgets, and regular reviews with partners.

In order to maintain this positive progress, staff training is strongly advised as a way to ensure that the financial pressures on the business are understood by all, with employees at all levels of the business working together with a keen focus on generating further income and safeguarding the interests of the firm.

We’re committed to serving the professional services sector, with strategies in place to support law practices, and ensure that we offer a selection of banking facilities designed to facilitate growth.

To make changes that can deliver an instant impact, good behaviours like addressing Work in Progress and lock-up can ensure that cash flow remains at high levels, and even help to reduce the level of borrowing needed for growth.

For firms with plans to accelerate their growth ambitions, our ongoing participation in the Funding for Lending scheme (FLS) remains a key part of our philosophy, and as part of the Government-backed scheme Lloyds Bank is offering discounts of one per cent to businesses in all sectors for the life of their loan.

Through our dedicated professional services team, Lloyds Bank is working closely with business owners to discuss issues and work out the best practices to maximise the growth strategies of legal businesses, ensuring they are well positioned to overcome potential hurdles.

Since the scheme was introduced two years ago, it’s been helping to reduce the borrowing costs for small and medium-sized businesses, and represents one of the many ways that we’ve been supporting the growth ambitions not just of law firms, but for British business in general.

Our professional practices specialists offer expert guidance to businesses operating in areas including accountancy, legal practice and surveyance, with a team of LEXCEL accredited managers on hand, each boasting unrivalled industry experience, utilising their expertise to identify any early warning signs of a change in the financial landscape.

By applying this astute and responsible approach to financial matters, firms can ensure that they can maximise the potential of the current positive economic climate, in which the industry is thriving, whilst safeguarding their interests, no matter what constraints they may face in the future.

34 The Bill of Middlesex