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CLAPHAM OMNIBUS the journal of the South London Law Society

Autumn Issue 2015 - www.southlondonlawsociety.co.uk

A TALE OF A TUB? Expert Witnesses Confer at the Cutting Edge (cover story)

› Conveyancing Focus › Leaving a Legacy to Charity › Agricultural Law

Inside this issue:

View our new website: www.thameswater-propertysearches.co.uk/CO


Contents

Contents 5 PUBLISHER Benham Publishing Limited 3tc House 16 Crosby Road North Crosby Liverpool L22 0NY Tel: 0151 236 4141 Fax: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com

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ADVERTISING AND FEATURES EDITOR Anna Woodhams PRODUCTION MANAGER Neil lloyd ACCOUNTS DIRECTOR Joanne Casey MEDIA No. 1395 PUBLISHED November 2015 © Benham Publishing Ltd 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.

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Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us. DISCLAIMER The South London Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation. 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 IMAGE Ⓒ NADIA OTSHUDI

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INTRODUCTION

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NEWS

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10 SPOTLIGHT ON...

25 LEGACIES

12 JUNIOR LAWYERS DIVISION

29 CASE STUDY

18 CONVEYANCING FOCUS

30 INTERVIEW 34 BOOK REVIEWS

22 AGRICULTURAL LAW

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Introduction

Officers President

Vice-President

Council Member

Gareth Ledsham

Robert Hush

David Taylor

Tel: e-mail:

Tel: e-mail:

Tel: e-mail:

020 8394 6413 gareth.ledsham@Russell-Cooke.co.uk

020 7815 6725 hushr@lsbu.ac.uk

020 7228 0017 dxt@hanne.co.uk

Treasurer

Hon. Secretary

Magazine Editor

Andrew Pavlovic

Sarah Hughes

Eileen Donaghey

Tel: e-mail:

Tel: e-mail:

020 8394 6455 andrew.pavlovic@Russell-Cooke.co.uk

020 7940 4060 sarah_hughes@anthonygold.co.uk

Tel: e-mail:

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Web Address: www.southlondonlawsociety.co.uk

020 7940 4038 eileen.donaghey@anthonygold.co.uk


Introduction

President’s Review

Looking forward to 2016 Bringing members together and finding out what’s important to you. Well the nights are drawing in, the clocks have gone back and there is a distinct autumnal chill in the air. No matter, the Michaelmas term is in full swing and South London Law Society and its members are as busy as ever. I would like to start this edition of the Clapham Omnibus by welcoming our new editor, Eileen Donaghey of Anthony Gold Solicitors. Eileen is not a lawyer, but a marketeer who has extensive experience in magazine publication. We look forward to seeing the journal go from strength to strength under her editorship. You can find out more about Eileen on page 7 and of course if any readers have ideas about future articles they would like to see - or indeed articles they would like to see published - Eileen would be delighted to hear from you. I would also like to take this opportunity to offer the Society’s sincere thanks to Richard Busby of Fisher Meredith Solicitors who is stepping down as editor after two years in the post. I am sure all our readers will agree that Richard has done an amazing job editing the journal and we wish him well in his future endeavours. You have not heard the last of him, however; Richard has written an article on developments in the law relating to cohabitation which can be found on page 8. One of the principal matters upon which the Society has been concentrating its efforts in recent months is the proposed round of court closures, and responding to the Ministry of Justice’s consultation on this issue.

In particular the closure of Lambeth County Court would cause significant issues for access to justice in South London. Such issues include in a geographic sense, with physical access to the nearest court at Wandsworth being problematic for some. For some there are financial concerns in travelling further afield; the cost of public transport, for example can be prohibitive for those being summonsed for housing possession cases, particularly in the case of rent arrears or mortgage arrears

Likewise, if there are any events you would like to see us put on, please get in touch. Finally, as the contents of the shops will now attest, Christmas is just around the corner. May I therefore be one of the first to wish all our readers a peaceful festive season and a prosperous 2016. GARETH LEDSHAM President South London Law Society

The Society will continue its campaign to ensure access to justice for all in South London. If you wish to get involved, please contact me. The South London JLD has also been busy of late: the JLD and London South Bank University organised a very well received mooting competition hosted by London South Bank University which as well as well attended networking event at Anthony Gold. JLD Chair, Hannah Mantle will be stepping down shortly to have a baby. May I take the opportunity on behalf of the Society to wish her all the best with her new arrival in December. As always, if there are any issues which members would particularly like the South London Law Society to become involved with, please let me know. We exist for our members and are keen to ensure the voices and views of all south London solicitors - no matter what the size of their practice or legal specialism - are heard.

COPY DEADLINES Spring 2016 Summer 2016 Autumn 2016

17th February 2016 11th July 2016 14th October 2016

Members wishing to submit editorial please contact us before copy deadline. Anyone else wishing to advertise or submit editorial for publication in the Clapham Omnibus please contact Anna Woodhams, before copy deadline.

Email: Tel:

anna@benhampublishing.com 0151 236 4141

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News

Court of Appeal affirms prejudice based approach to applications for relief from sanctions Andrew Pavlovic is an Associate in the Commercial/ Regulatory Litigation department of Russell-Cooke.

BACKGROUND The Claimants had entered into Conditional Fee Agreements with their solicitors (DLA Piper) and Counsel, in conjunction with an ATE policy, in February/March 2013. Under the relevant rules notification to the Defendant was required promptly and in any event within 7 days of entering into the funding arrangement. The sanction for failing to notify promptly was that the ATE premium was irrecoverable in its entirety (which had an estimated maximum value of £1,430,000) and the uplift under the CFA was irrecoverable for the period where notification had not been provided (approximately £60,000). Notification was belatedly given in June 2013, when the Claimant issued proceedings. In the interim, the legislative changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) had been implemented on 1 April 2013, as a result of which (subject to certain exceptions) success fees and ATE premiums provided for in agreements after that date were irrecoverable from the opponent. The Claimant applied for relief from sanctions at the same time as issuing proceedings. The Defendants resisted the application, arguing that they had suffered prejudiced through being given the false impression that the Claimant had either (a) not entered into a funding arrangement prior to 1 April 2013 or (b) had entered into a funding arrangement after 1 April 2013, where the success fee and/or ATE premium would be irrecoverable. They also asserted that had they known of the correct position it may have influenced their stance in settlement negotiations.

THE DECISION AT FIRST INSTANCE At first instance Mr Justice Hildyard applied the three stage test to be applied when considering an application for relief from sanctions (as per Denton & Ors v TH White Ltd & Ors), namely (1) to identify and assess the seriousness and significance of the failure to comply with the rule, practice direction, or court order engaging Civil Procedure Rule 3.9(1) (2) to consider why the default occurred, and (3) to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application.

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On 13 October 2015 the Court of Appeal in Mishcon de Reya v Caliendo [2015] EWCA Civ 1029 dismissed an appeal by the Defendants against the decision of Mr Justice Hildyard to grant the Claimant relief from sanctions in respect of their failure to notify the Defendants of funding arrangements. The Judge found that the failure to give the requisite notice of the funding arrangement represented a serious breach of the rules, and the Claimant’s solicitors should have been especially vigilant to ensure compliance with the rules in light of the imminent changes to recoverability of success fees and ATE premiums. However, assessment of the significance of the breach required consideration of the prejudice caused to the Defendants as a result of it. In this case, pre-action correspondence had been exchanged since 2009 without any indication that the Defendants were amenable to settlement. Furthermore there was no evidence that the Defendants changed their stance in negotiations once they became aware of the funding arrangements. Accordingly, the Court found that the breach was not sufficiently significant to prevent the granting of relief. Having reached that conclusion, the Judge considered that it was not necessary to spend much time on the second stage (the reason for the default). Indeed, unlike in Mitchell v News Group Newspapers Ltd, where the Claimant’s solicitors attributed their failure to submit a costs budget to pressures of work and lack of resources, no reason for the breach was advanced other than oversight (the solicitor having been under the mistaken belief that notification of the funding arrangement was only required at the time of issuing proceedings). Although the Judge found that this error meant the Claimant appeared to have a strong claim against their solicitors for any loss suffered as a result of the breach, he found it preferable to grant relief rather than encourage satellite litigation between the Claimants and their own solicitors. The Judge then came to the third stage, evaluating all of the circumstances of the case (including the effect of the breach on the conduct of the litigation and the use of court resources) and granted the application for relief.

THE APPEAL The Defendant appealed, contending that the Judge had erred on a number of grounds, including that he had failed to adequately consider the prejudice to the Defendant that would be caused by granting the application, had placed insufficient emphasis on the fact that the Claimant’s solicitors had advanced

no reason for the breach, and had failed to take sufficient account of the changes introduced by LASPO. The Court of Appeal rejected the Defendant’s appeal, finding no justification for any interference with the exercise of the Judge’s discretion. The Court found that the Judge had taken into account all relevant facts when reaching his decision, including the fact that granting relief exposed the Defendant to a liability to meet an ATE premium which could total as much as £1,430,000. They affirmed the correct approach was to focus on the effect of the breach, rather than the consequence of granting the relief - the Defendant’s potential liability for the ATE premium/success fee arose as a result of the relevant (pre LAPSO) rules, and not from the decision to grant relief from sanctions. The fact that the Claimants were attempting to take advantage of the old regime was not in itself a reason for denying relief from sanctions. The Court also rejected the Defendant’s complaint that the real beneficiary of the application was the Claimant’s solicitors, who had by virtue of the application avoided a negligence claim, describing this as “somewhat unrealistic”. The reality was that, if a claim was made, the detriment would be to the solicitor’s professional indemnity insurers.

CONCLUSION Whilst the issues surrounding recoverability of CFA success fees and ATE Premiums are less likely to arise, this case sets an important precedent for dealing with applications for relief from sanction. The decision is likely to be welcomed by most litigators. It is hoped it will discourage resistance to applications for relief from sanctions where no material prejudice can be demonstrated, as well as on the grounds that the defaulting party could litigate against their own solicitors to recoup losses suffered. It provides a further example of the court departing from the approach taken previously in the case of Mitchell, referred to above. Indeed, the only solicitors likely to view the Judgment with a degree of irony are the Claimant’s solicitors in Mitchell, who may increasingly feel as though that decision was the precursor to the Court taking a more considered approach.


News

A special welcome for our new editor Instead of the usual Council Member’s Report, this issue has a special welcome for our new editor. I would like to thank Richard Busby who has stepped down as editor for his continuous hard work and dedication to the Clapham Omnibus. by Eileen Donaghey

I am delighted to take the reins from Richard and take on the responsibility of editor of this important publication. To help make the magazine better for you the reader, I would encourage you to contact me with ideas of what you would like the magazine to cover but also suggestions of articles yourselves. The South London Law Society is more than its committee members it is about you. I would like to call upon the opinions of solicitors, paralegals and trainees based in South London to help make the magazine better for us all. I myself am not a lawyer but a marketer and therefore I will rely on you to tell me about the legal issues your firm is facing and what you want to see covered in the magazine. Perhaps you haven’t been to one of the Society’s events before or have been in touch about the magazine but I would love to hear from you. As well as the issues we all face, I would like to hear about the positive things we are doing in South London and for the community. A lot of us support charities and local causes and it would be great for us to share this with each other. It may be the case that two firms support the same charity but didn’t know and the magazine might offer an opportunity for us to work together. As we are rapidly approaching 2016, the next issue will be published in February but we are planning it now. I’d urge you to contact either myself or Anna at Benham publishing to discuss article ideas.

Eileen Donaghey Editor, The Clapham Omnibus eileen.donaghey@anthonygold.co.uk

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News

Latest Developments for Cohabitees - or ‘Civil Partnerships for all by tea-time’ Both members of the House of Commons and House of Lords are actively seeking to reform this area of law which remains unsatisfactory for millions of people. This article will examine the 2 separate proposals for reform before each house as well as to look at the issue generally. by Richard Busby

Overview There is a widely held view with the public at large that there is a concept in the family setting of ‘common-law husband/wife’ with legal rights flowing from that relationship. That is nonsense of course to those in the know but perilous to the uninitiated. A study commissioned by the family solicitors’ pressure group ‘Resolution’ found that nearly half of members of the public aged between 18-34 believe that cohabiting couples have the same legal rights as their married counterparts. This view is manifestly wrong and the lack of legal rights can lead to uncertainty and unfairness. Legal certainty is increasingly important as according to demographic projections from the Office of National Statistics, the longterm rise in the numbers of people cohabitating rather than marrying will continue, with the number of unmarried cohabiting couples in England and Wales projected to rise from 2.25 million in 2007 to 3.70 million in 2031 although some reports have that figure at closer to 6 million. It is all crystal-ball gazing. In recent years there has been increasing disillusion in the legal profession as to the practicalities of applying general property and trust law to family relationships where the couple choose to cohabit rather than marry. There have been several attempts at reforming the law and the Law Commission published a consultation paper on cohabitation in 2007 ‘The financial consequences of relationship breakdown’ following on from their previous consultation paper of May 2006. There have been so many consultations on this topic for so many years it is tempting not to bother to read them anymore. The writer recalls enthusiasm regarding an earlier similar report from 1988 as the signal for change but that is just gathering dust. If the Law Commissioners can be ignored by successive governments

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for 30 years, what prospect is there of any change in England? Resolution have backed several bills including that introduced by Lord Lester QC of Herne Hill in 2008-9, which never progressed due to lack of government support. The government had announced that it would first review research into the operation of the Family Law (Scotland) Act 2006 (which provides a framework for rights of cohabitants in certain household goods and certain money and property) before considering supporting similar proposals for England and Wales. Nothing has come of that so far. In 2012, Baroness Hale, said of the Scottish Act in the Supreme Court case Gow v Grant: “The main lesson from this case, as also from the research so far, is that a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship”…..The Act has undoubtedly achieved a lot for Scottish cohabitants and their children. English and Welsh cohabitants and their children deserve no less”. Why are the English and Welsh falling behind? Ireland introduced similar laws to Scotland in 2010. Australia, Canada, New Zealand and many other jurisdictions around the world have strong arrangements by statute for cohabitants who separate.

Recent developments 1 Cohabitation Rights Bill 2015 Most recently, Lord Marks of Henley-onThames has sponsored the Cohabitation Rights Bill in the current 2015-16 parliamentary session. It is waiting on its 2nd reading later his year but is essentially a revised version of the same private members bill introduced in the 2013 and 2014

parliamentary sessions - the election got in the way of the last version although it had been voted through to committee stage despite quite fearsome opposition.

What does the Cohabitation Rights Bill do? The Cohabitation Rights Bill is broadly similar to the 2008 bill referred to above but differs substantially as it does not make any provision for ‘maintenance’. Lord Marks acknowledges that this is likely to render the Bill a “disappointment” for many supporters of the cause but it may win more general support . The Bill’s proposals aim to address economic unfairness at the end of a relationship that has enriched one party and impoverished the other - i.e. the classic breadwinner –v- childcarer/homemaker scenario - in a way that demands redress at the end of their relationship and also to make provision for support upon death. The main provisions of the Bill would apply to cohabitants (unless they specifically optout) who are; • Parents, or • Have shared residence arrangements (the Bill mistakenly refers to a joint residence order); or • Prospective parents of unborn child as at the date of separation (oddly whether or not the child is actually born); or • Have lived together for 3 continuous years Upon separation, the court would be able to make a ‘financial settlement order’ (cl. 8) if the respondent has retained a ‘benefit’ and the applicant has suffered an ‘economic disadvantage’ as a result of ‘qualifying contributions’ and also to the general discretion of the courts and consideration of the usual factors such as welfare of children, financial resources and needs.


News ‘Benefit’ is suggested as a financial benefit of any kind - whether acquired, retained or enhanced during the period - i.e. earning capacity/enhanced pensions ‘Economic disadvantage’ is defined as past present or future financial loss or burden actually sustained or likely to be sustained i.e. loss of earning capacity/pension To help right wrongs and balance out benefit/disadvantage, the courts would be given the power to make orders for lump sums, property transfer or settlement on trust, sale of property and pension sharing. There was criticism over the 2 year period when last in the Lords, and that is now adjusted to 3 years, which may be more palatable. Baroness Deech was most vehemently against then and will no doubt be again. The main thrust of opposition was essentially that the Bill (in its former guise) only served to force discretionary marriage laws upon unsuspecting cohabiting couples who do not want it and that it is the whole law of financial remedy that needs reform first. The Baroness has herself re-introduced her own Divorce (Financial Provision) Bill in an attempt to address that. Resolution also wobble in their support they seek instead a more restitutionary form of settlement system - i.e. you get out what you put in. They are not openly supporting the Bill. Nevertheless the Bill does have its high profile supporters. There is also general parliamentary support for change - a 2013 poll of 157 MPs found that 57% of them supported legal change and there is an indication that the Labour party would back the Bill if they ever see the inside of No.10 again.

Recent Developments 2 – The Civil Partnerships 2004 (amendment) Bill 2015 While the Lords’ private members are busy with their own efforts at reform in this difficult area of law affecting cohabitation, the Commons are not to be out done. On 21st October 2015, Tim Loughton, conservative MP for East Worthing and Shoreham introduced his Bill to amend the Civil Partnership Act 2004. The Bill provides that opposite sex couples may enter a civil partnership. It is widely supported by various cross-party MPs including Keir Starmer, the Labour MP and former DPP and Geoffrey Robinson MP. It is a re-run of the Bill the MP brought before the Commons in 2014 and it mirrors the amendment the MP proposed during the report stage of the Marriage (Same Sex Couples) Bill in May 2013.

The premise behind the Bill is outright equality. If there is now equality in marriage law regardless of sex, it is then surely time for equal civil partnerships now. Mr. Loughton MP suggests that the unintended consequence of the Marriage (Same Sex Couples) Act 2013 is to create a “glaring inequality”. There is public support for this measure. The Government’s original consultation into same-sex marriage showed 61% of respondents in favour of extending civil partnerships to opposite-sex couples. The point is that whilst same-sex couples can choose to take up a civil partnership or to enjoy the recent 2013 extension of marriage, opposite-sex couples have only the option of conventional marriage, albeit by a larger range of religious institutions. He says that is not fair, giving rise to an inequality in what was billed as an “Act to promote equalities”. A further reason is given as statistics. An Office for National Statistics report said that there were some 2,893,000 cohabiting opposite-sex couples in this country - almost double the figure reported some 15 years earlier and that this section of society will continue to expand significantly and it follows that legislation is necessary to provide for a proper structure and regime. Extending the Act in this manner would providing for the same financial rights and responsibilities as occur on dissolution now, which equate to rights on divorce - i.e. simple equality but that would not address the wider problem in society of couples who are unmarried or who do not enter a civil partnership as set out further above. People in relationships may elect not to marry for various reasons, perhaps due to the religious or ‘establishment’ connotations. Some, who are particularly religious may not wish to remarry if they have been divorced before. There are also high moral concerns that parliament needs to act to create a forum for stable relationships - The Centre for Social Justice has produced a raft of statistics showing that a child who is not in a twoparent family is much more likely to fall out of school and 70% more likely to be addicted to drugs, and is more likely to get into trouble with the law, to be homeless, and not to be in employment, education or training. Is that all anecdotal? Ought laws be made on reliance on such figures? Mr. Loughton MP says that is not to judge single parents but simply that two partners make for greater stability and he thinks there is a strong case for believing his reforms would improve family stability. The foundations for this point are perhaps dubious and largely anecdotal or in the writer’s view at best empirical at its margins.

The truth is perhaps that relationships given ‘special status’ of civil partnership are no more immune to breakdown - the number of civil partnership dissolutions granted in England and Wales in 2013 was 974, an increase of 20% since 2012.

Decreasing Civil Partnerships That interpretation of the usefulness of the mechanism may be a misnomer - the Civil Partnerships Act was introduced in 2004 as at that stage society or at least parliament had not grasped the nettle of equality for same-sex couples and it was an invented concept to side-step marriage - although can the same mechanism be used again or ought it to fall away in the fullness of time? Whilst the civil partnership mechanism was lauded at first and the numbers of civil partnerships rocketed past the government’s own prediction of up to 11-22,000 civil partnerships in the acts first 6 years (there were 79,000 by 2010), the peak remains the first quarter of 2006 when 4869 were registered. The number of civil partnership formations has since decreased since and the latest ONS statistics show the number of civil partnerships formed in England and Wales following the introduction of marriages of same sex couples in March 2014 fell by 70% from 5,646 in 2013 to 1,683 in 2014. But in the final analysis, the essence remains equality and freedom of choice as the MP said on 21st October; “… Why should not those who have made a conscious choice not to go for a traditional marriage have the opportunity to have the same rights….. Extended to same-sex couples back in 2004”? Mr. Loughton MP believes that it is a wrong that is simple to resolve and; “All that is required is a simple one-line amendment to the Civil Partnership Act 2004. It could all be done and dusted in Committee by teatime”. When introduced in 2013, it was seen as a late ‘wrecking amendment’ to the passage of the marriage (same sex couples) Act and all parties joined forces to vote it down but now the issue has passed, the make-up of the political parties has changed greatly since May 2013 and the Bill is to have its second reading on 29 January 2016, there is expected to be much livelier debate on this issue that will be of importance to many.

About the Author Richard Busby is a specialist accredited family solicitor and partner at Fisher Meredith LLP. He is a member of Resolution’s national Legal Aid Committee.

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Spotlight on... News

Introducing - John Gould, Senior Partner at Russell-Cooke John's area of particular expertise is regulation and publiclaw. He specialises in the analysis and solution of complex regulatory problems, advising regulators, government departments, law enforcement agencies, and statutory and professional bodies. Chambers (2008-2011) has described him as "an important figure", "highly intelligent and innovative" with "unsurpassed knowledge of regulatory powers", "particularly apt at handling complex and sensitive matters", "very bright indeed; very thoughtful".

Who or what influenced you to pursue a career in the law? No one in my family had any connection with the law but even as a young child it seemed to me that there was something special and important about legal knowledge. By the time I went to university my enthusiasm for other academic subjects had waned and law was something fresh and different.”

What path did you take to legal qualification? In those days there was nothing like the same competition for training contracts as now and I remember being very casual about getting articles. I liked the fact that Russell-Cooke had a long established office in Lincolns Inn but also did substantial amounts of legal aid work in those days in South West London. I wanted to handle my own cases and help people directly. By the time I qualified I had a lot of very interesting hands-on experience and was very confident about what I could do. With hindsight perhaps I was too confident and taking more risks than I knew.

What is a typical day like at your firm and how do you manage your work life balance? A good day is one in which I can plan the order in which I do things. I’ve always been lucky enough to have a short journey to work and I’ve found that concentrated work within hours works better for me than diffused work over a very long day and at weekends. I’ve generally aim to be working from 8.30am to 6.30pm. These days there are numerous evening engagements as well, but I’m very happy that I was there whilst my children grew up. I have always discouraged the idea that it was good for lawyers to be seen in the office late at night. Sometimes the clients need long hours but more often very long hours mean that someone is working too slowly or is under pressure to maintain appearances.

You have had an extensive career in the law and have been involved in some complex cases, what particular area of the law has interested you the most? I have always found the activities of clever criminals who happen to be lawyers very interesting. I have

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been lucky enough to be involved in many of the most notorious cases involving solicitors over the last twenty years on behalf of the regulator. Some of those individuals were able to do significant harm over long periods and helping to stop them has always felt like worthwhile work. I have also been very interested in public law because it often relates to issues of law and logic rather than disputed facts, witnesses and documents. I have also been lucky enough to act for many clients who were interesting in their own right because of their position or achievements or simply because they were interesting characters.

What have been some of your highs and lows in the legal profession? A low many years ago was taking on a large international dispute that was beyond my experience and finding that the lawyers I instructed in two other jurisdictions were hopeless and out of control. I ended up, for technical reasons, having to apply to set aside the English judgement I obtained. This caused both the opposition and the court considerable amusement. Sometimes it is best to say that another lawyer would serve the client better. It would seem immodest to talk too much about high points, but I’ve always enjoyed finding elegant solutions to messy problems.

What do you think are the challenges facing the legal profession in the next 12 months? For those involved in legal aid, the mismatch between what justice requires and what the state is prepared to fund. For smaller firms, how to compete with the productised approach to legal services. For large firms, how to provide value for money in a global market.

What would you like to see changed in the legal profession in the next 5 years? A significant simplification of the over-complex regulatory arrangements which have followed the Legal Services Act 2007. I would also like to see an improvement of the prospects of those looking to pursue law as a career. These days too many wouldbe lawyers have to spend years working in administrative jobs to get a chance to practise.

What sets your firm apart from others? Only a small number of firms of comparable size offer a similar breadth of specialist services to such a range of clients. The majority of us work in South London but most of our work is about being a central London firm. We have lots of clever people but aren’t ruinously expensive for our clients. We don’t rate things according to how much money they make.

You’ve recently published a book; can you tell us more? After so long managing a law firm, acting for legal regulators and many lawyers I thought it would be good to create something from the law I have practised. I was also struck by how inaccessible much of the relevant law is to busy non-specialist practitioners. The book is called The Law of Legal Services and is published by Jordan. It is, as one kind reviewer put it, a comprehensive and reliable repository of the law of lawyering. It’s a substantial book running to 650 pages without materials which are provided on a free supporting website. It’s intended as a single accessible reference work for all the topics that lawyers may need to check including not just regulation but also negligence, retainers, legal duties, costs, protection of goodwill, insolvency and practice structures. I think it is excellent value (but I would say that wouldn’t I). Lord Neuberger wrote a very generous forward which was almost sufficient reward for writing it in itself.

What are the qualities that make an effective lawyer in your opinion? I can see from the range of people in Russell-Cooke that it’s dangerous to generalise. An effective litigator may not be an effective drafter of wills. However, I would say that a lawyer is nothing without integrity. A belief in the value of representation to clients who need it and the rule of law is a stronger motivator than financial rewards (which for many lawyers these days is just as well). Persistence and attention to detail are important. It also helps to know the relevant law.

What motto do you live by? I don’t know if I live by a motto and I hesitate to offer a cliché or seem pretentious but how about Good people almost always live up to the trust you place in them, but a lack of trust makes even good people untrustworthy.


News

A TALE OF A TUB? EXPERT WITNESSES CONFER AT THE CUTTING EDGE

ELIZABETH ROBSON TAYLOR AND PHILLIP TAYLOR MBE OF RICHMOND GREEN CHAMBERS REVIEW THE 2015 EWI CONFERENCE HELD IN SEPTEMBER 2015 AT CHURCH HOUSE, WESTMINSTER When ‘Gulliver’s Travels’ author and satirist Jonathan Swift wrote ‘A Tale of a Tub’, little did he realise the iconographic power of this somewhat homely image; a tub being a rather lumpen object. However with lawyers from time to time singled out as the victims of his satirical jibes, it’s not too hard to imagine what he might have thought of that voguish term: ‘hot tubbing’. For a number of reasons, however, ‘hot tubbing’ has now become a hot topic, especially so at the recent Annual Conference of the Expert Witness Institute (EWI) held on 24th September 2015 in Central London, where it frequently emerged as the prevailing theme to which much discussion turned. The conference focused on the essential role of the expert witness, who ideally provides a reassuring help in trouble for the barrister or solicitor dealing with a complicated case. The expert witness is he, or she, who is charged with the often complex task of putting forward reliable and accurate evidence that, more often than not, may determine the outcome of a case.

Magna Carta ‘Hot tubbing’ certainly featured in many of the discussions and debates. In this 800th anniversary year of Magna Carta, it was brought into play as a means of launching the conference, with the suggestion that the confrontation of the dissolute King John with the aggrieved barons at Runnymede might be, in a number of respects, a ‘hot tub.’ Well, er - not really - unless you are tempted to point out facetiously that King John had got himself into hot water. In the modern context a ‘hot tub’ is fundamentally, an inquisitorial (rather than adversarial) discussion if you will, held usually in court with possibly the judge eliciting information from the advocates, and parties in a dispute, as well as, yes, the expert witnesses.

As King John was confronted by twentyfive barons attended, by some two thousand armed knights, the king’s many previous opportunities for discussion had long since passed. As he was an illiterate despot, reasoned debate was not exactly his strong suit - so the notion that the events at Runnymede were some sort of medieval version of hot tubbing is whimsical at best. But it’s a thought - and it was rather an effective way, as it happened, to kick off what was to be an important conference.

Insight and controversy Chaired by Amanda Stevens, the Conference proceeded apace, with speaker after speaker imparting much useful, insightful and sometimes controversial comment on the future of the justice system in general and the varied role of the expert witness in particular. The Conference as a whole was distinguished in particular by useful, organized and high quality debate. What emerged as the keynote speech was delivered by Dr John Sorabji. As Senior Fellow UCL, Judicial Institute - and Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls, he covered a number of important points. The first centred on the problem of Litigants in Person (LIPs) whose numbers have proliferated as an unintended consequence of LASPO. As litigants continue in droves to appear in court without the legal representation they cannot afford, court procedures have had to evolve and adapt in response. The role of judges has therefore undergone gradual change, and so has the use of experts. Judges now find themselves participating more actively in proceedings, with a correspondingly more active role for expert witnesses. The overall objective is to adapt court procedures in line with CPR 3.1A which concerns case management and

unrepresented parties, i.e. where at least one party is unrepresented. The Rule includes the stipulation that ‘the court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective.’

What experts really think With all this in mind, there were comments by Stephen Webber of the Society of Clinical Injury Lawyers on ‘what solicitors really think of experts’. Other comments related to what experts think of solicitors, particularly the quality - or sometimes the lack of it - in the matter of solicitors’ instructions. ‘Pitiful’ was one of the terms used. Generally, greater attention to precision, detail and accuracy was called for.

‘We are flourishing!’ Another highlight of the Conference included the EWI Chair’s address by Sir Anthony Hooper, which focused on the fact that there is still no formal certification procedure in place for expert witnesses. The matter however, has already been reviewed via a pilot study at University College London, anticipating the day when a proper system of certification is set up (and possibly a corresponding rise in fee levels for exerts!). ‘We are flourishing,’ stressed Sir Anthony, elaborating in detail on the essential role of expert witnesses - and the vital contribution they make to the justice system and to justice itself.

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Junior Lawyers Division

South London JLD Update The committee and members of the South London JLD have taken part in a number of events since our last update in the Spring issue of Clapham Omnibus with events ranging from seminars to mooting. We have enjoyed the quality and variety of this year’s SLJLD events. Firstly, we held a seminar on the topic of Equality and Diversity in May, hosted by RussellCooke and sponsored by Wesleyan for Lawyers. Jo Sidhu QC and David Neita gave extremely thought provoking presentations, which encouraged lively discussion over drinks and nibbles. Jo Sidhu QC specialises in criminal law and is President of the Society of Asian Lawyers, while David Nieta is a qualified barrister known as the ‘People’s Poet’ as he raises awareness of the issues affecting marginalized communities through poetry. Having spent the summer working on the SLJLD website, which has now been launched, we organised a networking event in September, which was hosted and sponsored by Anthony Gold and Wesleyan for Lawyers. Attendance was high and gave the opportunity for our members to get to know one another - ranging from LSBU students, through trainees and paralegals to qualified junior solicitors.

Most recently, we were invited by LSBU to be involved in a SLJLD/LSBU moot, which took place in October. LSBU and SLJLD each provided a team of two to argue the appeal of a negligence claim regarding workplace stress - a topic which we hope is far from familiar to our members! James Davison of 3 Paper Buildings acted as the judge on the evening and we hope to take part in a similar event next year. In the meantime, thank you to our team members Ashmeet Wadwa and Tom Henry and congratulations to the students who won the moot. As with the SLLS, one of the main focuses for us through the national JLD this year has been the Court closures which are being proposed. Please see Gareth Ledsham’s president’s page for more information. Finally, as Gareth has mentioned, I will shortly be stepping down as chair of the SLJLD. Mala Parmar will be taking over as chair and I have no doubt that

the SLJLD will thrive under her leadership. The next event, which is currently in the planning stages, is likely to be a quiz. Once we have confirmed a date, details will be circulated online and to our members. In the meantime, we are always happy to welcome new members whether you are a law student, trainee, paralegal or solicitor up to five years’ PQE. Membership is free for junior lawyers studying or working in South London. Please contact us at sllsjuniorlawyers@gmail.com to join or for further information about membership. Keep updated of our events and activities by following us on Twitter - @SouthLondonJLD, our website - www.southlondonjld.wordpress.com or on LinkedIn.

White Collar Crime in the old city of Krakow Krakow is a remarkably easy city to reach from London in a short flight from Gatwick and I felt immediately welcome in a city where you can walk from the station which serves the airport into the old city and its beautiful squares, churches, buildings which lean diagonally away from the street, and street café life. Enough of the tourism, I was there for the Autumn Congress of the FBE (Federation of European Bar Associations) from 8 to 11 October when the topic was “White Collar Crime”. Over three days lawyers from all over Europe undertook three areas of the FBE’s work. On Day One, we met in Commissions, I am a member of the Human Rights & Freedom Commission, and there are 12 commissions all together. On Day Two we discussed the main theme of the Congress in four plenary sessions and Day Three we met in the FBE General Assembly to discuss the business of the FBE with the reports of the President, General Secretary and Treasurer. This was immediately preceded at 9.30 on a Saturday morning by a plenary session of the Deans, Presidents and council members of the bar associations and local law societies of Europe to discuss issues affecting justice in Europe, such as digital rights and legal professional privilege of client confidentiality, and access to justice, which is being eroded by the reduction and lack of free legal services for the poor. The hot topics in the Day Two plenaries included Money Laundering; Trading Carousels; Corruption in Business Practices and Indemnity for lawyers

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practising in more than one country. I found the speakers interesting as there are different approaches across different countries, and for the first time I heard how trading carousels work in order to avoid VAT and leave the authorities trying to claim tax from a company which has disappeared. The record for a company to be set up and cease trading was 8 hours, and in that time they had handled the last sale of high value goods such as cars, and trucks and they closed the business and disappeared. Meanwhile the several transactions along the route were not liable for tax, as it falls on the last trader. David Greene from Edwin Coe in London was among20 speakers from all over Europe, and his contribution was on the Bribery Act. Apart from learning a lot about the law and legal practice in other European countries, we all network profusely. Over the three days we have plenty of time to meet our colleagues and hear more about their work, and establish useful contacts. Krakow was founded 1400 years ago and is a UNESCO World Heritage site and the Krakow Bar wanted to ensure that we had an opportunity to get to know its beauty. On the first evening they gave us a warm welcome on a boat with a jazz band and a view of the castle lit up at night. On the second evening we were taken to a salt mine, and surprised to find our dinner served in an underground restaurant accompanied by a splendid brass band. Nothing could surpass the Saturday night gala dinner in the Baranami Palace with one of Poland’s greatest conductors, a small orchestra, opera singers and dancers in national costumes from different eras. Throughout they ensured we ate the finest delicacies and this was because they had so much they wanted to share with us.

Nicholas Copernicus worked in the Jagiellonian University in Krakow and the General Assembly was held there on Day Three, in a hall which had some fine paintings overlooking us as we debated. Copernicus was up there on the wall, as was John Paul II, another famous alumni. The University had been set up by a Queen by selling her valuables, and it was good to have her portrait in pride of place above us as we held the General Assembly. After the Assembly we were treated to our only formal tourism, a tour of the Collegium Maius of the University which has a museum with the rooms still in place which were used by Copernicus. There are many sculptures of the scientist, and perhaps the most photographed is in the courtyard of the Collegium Maius. We were privileged to see his instruments and other memorable artifacts of the time. A modern day addition to the museum was a photograph of Earth from space and given by Neil Armstrong with the message “To the Copernicus Museum, Krakow, on the 500th birthday of a giant”. In the next 6 months there will be a concerted effort (by me) to build a group of South London lawyers interested in European issues, meeting lawyers in Europe’s beautiful cities, and keen on attending the FBE Congresses. The next will be held in the European Court of Human Rights in Strasbourg from 12 to 14 May 2016. In October 2017 when I will be President of the FBE the 25th Anniversary Congress of the FBE will be held in London. I invite anyone interested to join me for coffee in the Barista and Baker coffee bar on London Road, just email me to let me know when sara.chandler@lsbu.ac.uk, and please make it soon!


Funding › Research › Cure

News

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The white Burgundy district of Mâconnais tends to be overlooked but creates stunning value wines. Try the nutty, newly arrived 2014 Mâcon-Burgy ‘Les Trois Terroirs’ made by Olivier Fichet. He avoids oak entirely to ensure the clean fruit of the Chardonnay shines through. It can be safely cellared for up to three years. Lightly chilled, it accompanies fish and particularly shellfish well. £10.95 (Stone, Vine & Sun).

For a light autumnal red, be patriotic and enjoy an English vineyard wine. One of the best is Wickham Row Ash Red made mainly from Triomphe d’Alsace grapes. The vineyard was founded in 1984 at Shedfield near Southampton and now extends to seven hectares. The 2014 has a bright cherry character, soft tannins and appealing balance. It is delicious with lamb, cured meats and cheeses. £10.99 (Waitrose online and in 23 branches). 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.

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News

PENSIONS - ALL CHANGE Nothing is constant except change according to Heraclitus. It seems that this can always be said for government intervention in the pensions arena. The current administration is no different believing that pensions should be a constant source for change. This Summer's Budget introduced a wide ranging overhaul of the allowances and reliefs that would be available for clients within their pensions. These are summarised as follows:-

1. The Lifetime Allowance - This amount sets the maximum tax efficient limit of all pension benefits, is to be cut by 20% to £1 million with effect from the 6th April 2016. There will be some transitional protections for clients who are at or currently above this new limit.

2. The Annual Allowance - this is the tax efficient limit for total pension contributions for a Tax Year. There has been an adjustment in how high earner clients are to be granted tax relief from 6th April 2016. If you earn above £110,000 and your income when added together with pension contributions exceeds £150,000, then for every £2 earned over this amount, the annual allowance will be reduced by £1. A minimum annual allowance of £10,000 will continue to apply for all those earning above £210,000. Care needs to be taken here as there will be two types of income, threshold income and adjusted income. The key is that as long as the threshold income is below £110,000, then there will be no adjustment to the annual allowance and it will remain at £40,000 for the tax year concerned. 3. Pension Input Periods - The Chancellor decided to realign Pension Input Periods (PIP) (which determine the tax year to which a pension contribution relates). This meant that all PIPs irrespective when they were due to end, ended on the 8th July 2015 and the new PIP established on the 9th July 2015 will run until the 5th April 2016. This means that if you had already contributed your full allowance of £40,000 in the period up to 8th July 2015, then it may be possible for you to contribute up to another £40,000. For clarification on this area please speak to your Financial Adviser before the end of this Tax Year. This is especially important in the light of the introduction of the high earner test from 6th April 2016. It will no longer be possible to manipulate these periods to pay in further contributions.

4. The Government recently introduced a Consultation Paper entitled "Strengthening The Incentive To Save". According to Government figures, the gross cost of all pensions relief in 2013/14 came to £50Bn. To address this the Government are proposing the introduction of an ISA-type pension system, where tax relief as we know it, would be removed and replaced with a government top-up arrangement. The key aspect here is that pensions would cease to be tax relievable but become tax free when withdrawals are made. Industry has questioned the need for such action and if tax relief as we know needs to change, then the alternative flat rate relief system may well become the way forward.

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Given all of this uncertainty and change, it is little wonder clients remain cautious of relying solely on the pensions system for income in retirement. The pensions industry continues to strive for independent autonomy from the Government or at least an embargo on further change for at least a decade. This way clients and advisers alike would be able to plan their retirement futures without having to make rash decisions before deadlines or budget announcements. As the Author Steven James says, "change is not always a good thing". Steven Vallery - Business Development Director S4 Financial Limited - Contact: 0127634932 Jonathan Lochery - Director - I.P.M. SIPP Administration Limited - Contact: 08451303443


News

PRICING AND BILLING ARE TWO SIDES OF THE SAME COIN By Stu Gooderham, Head of Client Relations at LexisNexis Enterprise Solutions

The difference between pricing and billing is hotly debated in the legal industry, but they are similar concepts and so must mirror each other. By aligning pricing with billing, firms ensure that the bill presented to the client actually equals the agreed price. However, logical as it seems, establishing profitable pricing is challenging many law firms, which in turn is impacting presentation of agreed billing to clients. Elementary to pricing anything is an understanding of the cost base of an offering. And herein lies the problem. Many law firms don’t know what their cost of production and delivery of matters is and so struggle with realistically pricing their services.

Pricing requires business insight Costing requires breaking down and clearly scoping matters; and associating costs towards each task across the phases of production - planning, discovery, pre and post-trial, etc. Based on this granular understanding of matter costs, firms can ascertain the price - i.e. the rate that the client will be willing to pay. Nevertheless, to price profitably, firms need insight into what individual types of matter typically cost. This requires access to data (historical and current) to ascertain what level of resources were applied in the past, how best to leverage those resources, whether skills are currently available, how much new skills will cost to acquire, what level of staffing is needed, and at

what stage of the matter lifecycle.

Disjointed business environment Such information isn’t always readily available to firms. They use multiple systems, which despite best efforts to integrate, remain disparate due to the numerous proprietary technologies they’re based on. The various business functions operate in siloes, making it difficult to obtain a single view of the business, projects and matters.

Aligning billing and pricing Then there is the issue of timely, accurate billing for law firms. When is the best time to bill a client, how can debtor days be reduced, and how to increase realisation. Anecdotal evidence suggests that often firms spend days trying to raise invoices - collating time sheets and matching work executed against deliverables - which despite all the scrutiny, still turns out to be inaccurate.

The ability to monitor actuals versus the matter plan (based on which the pricing was determined) is crucial. Then again, firms require legal project management capability, which in turn means that the front and back office of firms must be inextricably and seamlessly connected. Enterprise resource planning technology streamlines pricing and billing related processes. It provides a template upon which to execute matters supported by a connected environment - from pitching a piece of work across delivery through to generating profit encompassing everything from time recording, resource allocation, skills management and communication through to accurate and timely invoicing. Vitally, such an approach helps both curtail scope creep, eliminating revenue leakage. Law firms should consider the discipline of enterprise resource planning. It’s tried and tested in other professional services sectors.

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News

Getting Engaged The good, the bad and the future of digital interaction with government. Five years ago, the government responded to a report by the then UK digital champion Martha Lane Fox by declaring that public services should be provided digitally by default. The Government Digital Service (GDS) leads the digital transformation of UK government, with a digital by default remit. Increasingly we expect everything to be available online. Already much of how we interact with the taxman either is or can be online. Other Government departments and agencies are catching up, with varying levels of success.

The good GDS has recently come to the end of its initial period during which a number of exemplars were tasked with introducing a digital service, the GDS reported that Register to Vote saw 4.3 million registrations. Your tax account has 1.5 million users. More than 70,000 drivers view their licence information online each month and Renew a patent online has seen a digital take-up of 94%. In fact, a record-breaking 469,000 people registered to vote online in one day for the 2015 general election - as the deadline closed on 20 April. The online Lasting Power of Attorney service went from no online presence to 15% of LPAs created using the online service and a 90% satisfaction rating for this brand new service in 18 months. A fantastic result considering the average age of a person making an LPA is 80 years old.

The bad Contrast that good news with the experience of Legal Aid lawyers trying to get to grips with CCMS, which becomes mandatory from February next year. The Legal Aid agency say “CCMS is an online system for civil and family legal aid providers and others assigned to work on their cases”. The Legal Action Group say

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by Sally Danby, Product Manager, Advanced Legal

“although some £31m of public money has been spent on CCMS over the past three years, it is not a bespoke product, designed to meet the needs of providers or clients”. Some reports put a much higher figure on the cost. At its recent conference Jo Edwards, chair of the family group Resolution said “the system continues to be unstable… users can’t keep a record of what they’ve actually submitted… it is so slow, it can take 3 times as long as the paper process.” The similarly beleaguered Rural Payments Agency (RPA), an executive agency of DEFRA, spent £154 million on a mandatory digital basic payments scheme, but due to significant ‘performance problems’ reverted to paper forms. A select committee criticized the agency for not paying enough attention to the needs of the users. The system features a painfully slow digital mapping tool, with a high proportion of users based in areas with no broadband access. There are other examples, the public Accounts Committee chair investigating the project for a new GP data system said “Failed government IT projects have long been an expensive cliché and, sadly for the taxpayer and service user, this is no exception”.

The future It is telling that the projects showing broad success have been built in an agile way. Small teams supported by GDS releasing iterations of their solutions, with real users trying it out along the way. Compare this to the big spend, big bang projects like CCMS and RPA basic payment scheme where little to nothing is seen until significant cash has been spent. Returning to the speech made by Jo Edwards, she said “My message to the Legal Aid Agency today is simple - just because something works for you, doesn’t mean that it works.”

GDS recently looked back over the last two years’ transformation. They emphasised User needs, not government needs. “We’ve done it by putting the user needs first.” The difference might be something already well understood by those who sell digital services to customers - rather than mandating its use, the key is user engagement. It isn’t possible to build the right digital service without working closely with those who will use the service. And that doesn’t mean providing updates and presentations about what you are building, it means working with users on every step of the journey. It also means embracing the fact that customers come in all forms. A good system will take all stakeholders into account. For this to work it needs users to get involved. We are all busy, but think of the often used argument for voting: if you don’t take part, can you really complain that you don’t like the outcome? Remember that new recruits coming into your business may well be the most experienced tech users you have and will be well placed to embrace these changes. Smart businesses harness that baked-in enthusiasm for the digital world, in preference to introducing them to the older kit that is still a familiar sight in some offices (try showing anyone under 25 a fax machine!). Whilst the digital strategy is sold as bringing lots of benefits in our interaction with government, the cost savings that can be delivered are huge. The original strategy predicted over £1.7billion savings each year. It is clear this drive will only increase pace, and businesses need to be ready to make their own processes fit efficiently with the increasingly digital world. Don’t only react when this strategy affects your business, get involved early and benefit from the move to digital.


News

MANAGING THE DARK SIDE OF ARBITRATION by Derek Wood QC

Resolving legal disputes by arbitration rather than by court proceedings has many well-advertised virtues. It provides for due process before an impartial tribunal leading to an enforceable award which is as much binding on the parties as a judgment by the court. If it is a domestic English or Welsh arbitration, the Arbitration Act 1996, in contrast with the increasingly bureaucratic Civil Procedure Rules, empowers arbitrators, sitting alone or in a panel of three, to adopt procedures suited to the circumstances of the parties and the case which are far more flexible and adaptable than are available in court. If it is an international arbitration it will in all probability be conducted under rules or protocols which are equally flexible. The parties - or an institution on their behalf if they cannot agree - will choose the arbitrator. He or she is likely to be a respected person who is knowledgeable in the area of trade or business from which the dispute arises, and need not be a lawyer. The parties do not have to wait anxiously to find out the name of the judge who is going to try their case, only to be disappointed to find that he or she has no familiarity with the subject-matter - or to be told at the last minute that the case cannot be listed for hearing because of the pressure of other court business.

What is the problem? In short, it is time and cost. This is the dark side. Many arbitrations, despite the liberating measures in the 1996 Act, have turned out to be court litigation by another name. The whole laborious process of statements of case, disclosure of documents, expert meetings and exchange of witness statements rumbles on. Among litigation lawyers old habits die hard. And there is the extra mouth to feed: the arbitrator, with his or her fees and expenses. There is no taxpayerfunded judge sitting in taxpayer-funded premises in an arbitration.

An arbitrator will be engaged with the case from the start and will be monitoring it throughout. Dates for case management or final hearings can be relied upon. If the case proceeds to an oral hearing, that will take place in private, at a place which suits the parties. Much of the business will be carried on by e-mail or telephone or video link. Ultimately there may be no need for an oral hearing. The tribunal’s decision can be made on the basis of documents only, including the parties’ written submissions. The rules of court, by contrast, do not permit any case, however much it may turn simply on agreed facts or documents, to proceed without an oral hearing.

Arbitrators’ fees are and always have been a conundrum. The principal rival models are hourly rate versus a percentage of the amount in issue. Neither is entirely satisfactory. All experienced lawyers know that there is no correlation between the time it takes to disentangle a dispute and the amount of money at stake. Both systems of charging can lead to high fees.

Opposing parties who find themselves in arbitration rather than in court are typically there because of an arbitration clause in a contract or similar document requiring them to refer their disputes to this method of resolution. Arbitration agreements regularly appear in standard form contracts. Yet, despite the merits of the process, many express dissatisfaction with it. Those who choose arbitration voluntarily, without a prior arbitration clause in place, are hard to find.

The arbitration community is bringing forward a new answer to these problems, exploiting the opportunities opened up by the 1996 Act but avoiding the pitfalls: the fast-track fixed-fee arbitration. Falcon Chambers Arbitration service (FCA) has produced a model, focusing on members’ expertise in real property disputes, which is not tied to the value in issue and eliminates hourly charges. It offers parties in dispute different options, depending on how much they wish to spend and how quickly they want the dispute resolved. The eye-catching features are the 20-day and 40-day arbitrations, to be determined, if junior counsel is appointed as arbitrator, for fixed fees of £3,000 and £6,000 respectively. The 20-day arbitration is

conducted on documents-only contained in a single bundle of not more than 350 pages, including the parties’ submissions. The arbitrator undertakes to use best endeavours to deliver an award within 20 days of receiving the bundle. The 40-day arbitration may involve up to three 350page bundles, and there may be a hearing. The 40 days run from delivery of the bundle or the close of the hearing. If Queen’s Counsel is appointed the fee will be higher, but nevertheless fixed. An extra fixed fee is payable if the arbitrator has to deliver a separate award on costs. The system is supported by a simple arbitration agreement entered into by the parties and their selected arbitrator, and by straightforward single-page standard directions, which can be amended to suit the case. Because the 1996 Act applies, party-autonomy predominates, subject to the underlying obligation of the arbitrator under section 33 to ensure a fair and effective disposal of the case; and elaborate protocols and procedural paperwork are dispensed with. There are fail-safe measures which can be taken if it becomes clear, as the case progresses, that the procedure needs to be reviewed. The model has attracted wide interest. It has the potential to restore the reputation of arbitration as a speedy, cost-effective method of dispute-resolution, incentivising everyone involved in the process to bring cases to an early conclusion at a sensible cost. Derek Wood is a member of Falcon Chambers, a Fellow of the Chartered Institute of Arbitrators and a Chartered Arbitrator.

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Conveyancing Focus

The role of today's search agent Like a naughty child in days of yore, today's search agent should be seen but not heard, or so it seems to me anyway. Our role is a very simple one; be available when needed, deliver outstanding customer service and provide good, accurate information in a timely manner at a competitive price that allows the solicitor to win business in the cutthroat world of legal conveyancing. I don’t think that it’s any more complicated than that..… With myriad products available covering everything from contaminated land to Japanese Knotweed, and the choice to be made between the Council and a Regulated Search not to mention drainage and water. Hardly surprisingly then that conveyancing solicitors become glassy eyed at the prospect of deciding what information they need to best inform their client, as they are about to invest hundreds of thousands, if not millions today, in their new home. But those choices are crucial because the threat to property (physically and to its value) from environmental issues such as flooding, infrastructure choices made by our Government such as the route of HS2 and the constant need for energy and exploration leading to controversial processes such as fracking, are very real. And so, equally, if search agents are to be seen and not heard, it's also a challenge for all of us on this side of the fence to promote our wares. Here at Index, we have a very straightforward philosophy - keep it simple! The world of property conveyancing is a complex one and so making at least one part of the process easy to comprehend and deal with has got to be an attractive option. Index has invested heavily in the technology and IT infrastructure that allows this to happen and solicitors that work with us recognise immediately the benefits that this brings. But if a solicitor wants to work in a different way, instructing by email, phone or even carrier pigeon, we’ll adapt accordingly! The latest iteration of our online ordering platform puts information literally at the solicitor’s fingertips when they need it; doubling up as a genuine search case management system. Quotes can be held,

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profiles stored for later review and all of the search products, after delivery, remain instantly available for future download. Index has put product cards on the same platform so that conveyancing solicitors can see, at a glance, the information that will be provided within a report and, therefore, benefit their clients when they are thinking about their most significant of investments.

by Kevin Johnson, Director of Index

management system and our proactive support at all levels of the solicitors practice gives all of the visibility that you would want of us, and no more! n For more information please contact: Surrey office Kevin Johnson 0843 659 4000 email us at londonsw@indexpi.co.uk London South East office Jerry Catmull 02034 576 910 email us at londonse@indexpi.co.uk

At Index London South West, I have coined a strapline “Think Of Us As Part Of You”. We recognise that conveyancing can be stressful and difficult but the simple philosophy behind We provide our services to all conveyancing Index is to support proactively everything firms, including sole practioners, multiple that the solicitor, and partner practices, legal executives and their staff, does.

licensed conveyancers. In fact, those that we support most successfully are, more often than not, the assistants, secretaries, interns and anyone else that has been given the task internally to deliver. The need for them to try and find that one person in the council, water authority or other agency is taken away - they only need one contact and that’s us here at Index. Like the naughty schoolboy, search agents should be seen and not heard and the Index online ordering and case

Whatever your requirements Index have the solution. • Local Authority Searches • Environmental Reports • Planning Reports • Chancel Repair & Indemnity • Mining Reports • Drainage & Water Reports • Anti-Money Laundering & Compliance • Land Registry • Utility Reports Index Property Information Trident Court, Oakcroft Road, Chessington, Surrey KT9 1BD Telephone: 0843 659 4000 Email: londonsw@indexpi.co.uk Web: www.indexpi.co.uk


Conveyancing Focus

When change is not a good thing - Planning This year’s Housing Bill intensified the focus on housing supply, and for good reason: if we are to reach the required number of new dwellings a lot of land needs to be found and a lot of property needs to be built. Indeed, according to the Barker Housing Review, 250,000 new dwellings need to be found per year. This increases the risk of development threatening your client’s investment, the surroundings, the view and potentially the value. This remains an issue whether it relates to a residential property or a commercial development. In the race to try and achieve this magic number there has been a marked increase in the change of use applications to convert office blocks to multiple apartments. However, commercial conveyancers and their clients must take care on the setting and suitability of their proposals. Paul Addison, Managing Director of DevAssist, who provide professional opinions on planning reports, says: “There is a clear need to understand the issues before the costs start to mount”.

Case study This planning application was lost on appeal. It concerned plans to redevelop three office buildings, within a conservation area, as 24 flats. Whilst the number of flats proposed was nothing out of the ordinary, the impact of the scheme on its surroundings was considered to be a problem. The removal of trees to accommodate car parking and the scale of development on a part rural, part brownfield plot would make it considerably more visible than the existing buildings. It was considered to give the site an urban appearance. There was little development within the conservation area and it was considered that this scheme would not contribute to the character of the locality. The architecture of the village in which the site sat was built in the Arts and Crafts style, fashionable between 1800 and 1910, and the design failed to reflect this. In addition, the site was designated as having a significant flood risk and alternatives had not been assessed in response to this. Indeed, the removal of trees could lead to potential harm to

biodiversity, given the proximity to a Site of Importance for Nature Conservation (SINC). Understanding the context is at the heart of a successful planning application. STL is delighted to offer commercial conveyancers the DevAcquire report, which ensures your client understands the opportunities or restrictions that could impact on their potential investment. The report scans up to 75m beyond the full perimeter for sites up to 50 acres. It assesses land use zoning restrictions or past activity, permissions or refusals that signpost sensitivity for commercial development and also includes change of use. Knowing up front, allows your client to review the risk and/or the reward on the asset.

Next steps For more information on any of the interpreted planning and development risk reports from DevAssist, call STL on 0800 318611 or email info@stlgroup.co.uk

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Conveyancing Focus

Fixing The Roof While The Sun Shines As I write this ironically titled editorial the radio weather report has officially declared that a full months rain has just fallen in the last five hours across Dorset, Hampshire and much of the Thames Valley. Extreme and unforeseeable or highly likely and pretty much predictable approaching a Bank Holiday? So with plenty of experience and a healthy dose of English cynicism, why are we surprised by and always unprepared for even gradual changes in circumstances. How many of us have sat back with cool drink in the sunshine and said ‘I must clean out that guttering this weekend’ then done nothing? Conveyancing is not that different. Every year we see the peaks and troughs, the property market is steadily recovering with increased instructions and higher valuations but it’s by no means booming. On the surface this should be the perfect time to take a look at the roof and prepare for extreme and unforeseeable or highly likely and pretty much predictable. Of course it’s well recognised that the collapse of the housing market put a huge strain on the conveyancing profession, many practitioners left the profession altogether (some never to return). Conveyancing is the bedrock of many law firms income streams but so rarely is its potential as a growth vehicle recognised deliberately developed. In many firms, conveyancing is almost a loss leader. Fine if this is part of a conscious strategy, but irresponsible if it’s an un intended or unrecognised consequence. Depressed fee levels are still the norm in many practices and as volumes of instructions increase, the need to keep up with the workload is preventing many Managing Partners and heads of department from recognising key issues affecting their firm’s profitability and productivity. They’re too busy driving the car to stop and put petrol in it.

Let’s look at a case in point. Thomas Legal Group is a niche law firm specialising in property law. They are conveyancing experts dealing with all aspects of residential and commercial property conveyancing. Like a lot of busy practices they didn’t realise they had an issue in terms of producing new quotations and converting enquiries into instructions. By working with PIE and adopting MYFEES their team have increased conversion of enquiries to instructions from roughly 1/3 to

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more than 3/4 while increasing average fees by more than 10% per case. Step changes like this didn’t come over-night, but detailed Management Information accessible through MYFEES allowed Thomas Legal Group and PIE’s Legal Services Manager, to identify the most effective steps to move their business forward.

Simon Thomas; “Once we’d been using MYFEES for a while it became clear that we could confidently enable others to successfully provide conveyancing quotes within our business. There was no point in myself and my partners giving out quotes so we appointed a dedicated quotations administrator who was already working in sales and trained her in house as it was vital that she should live and breathe the Thomas Legal Group ethos of customer service excellence. MYFEES enabled us to tailor our quotes to portray our firm’s progressive and service focussed image”.

PIE have brought quite a number of other benefits to Thomas Legal Group. “Before MYFEES it was very difficult to determine what changes to our pricing would do to our conversion rates or whether selling points such as ‘no completion, no fee’ were effective or not. Also although we had invested in our website, making it smart phone and tablet friendly, we couldn’t track leads generated from our website, so we didn’t know whether the site was generating business or not, with MYFEES all of that changed”.

Working with PIE isn’t just about technology and business development input; PIE share a passion for service excellence and customer care. “PIE’s support service is absolute marvellous, we make it difficult for PIE as we are always looking to do things differently but you always manage to deliver”.

By the time this item goes to press it’s anyone’s guess what the weather will be doing. Thankfully for now, the property market is a bit more predictable and clearly some firms are taking a look at what they’re doing, how and why and recognising that there are painless cost effective measures that deliver fundamental business improvements without compromising quality and professionalism. Simon Thomas is a founding Partner in Thomas Legal Group and heads up their London Office. David Burrell is Legal Services Manager at PIE and Brighter Law Group. Contact: david.burrell@poweredbypie.co.uk 07977 348 348 Andy Watson is Channel Development Director at Property Information Exchange and Brighter Law Group.Contact: andy.watson@poweredbypie.co.uk 01189 769 479


Conveyancing Focus

Technology in Conveyancing Opportunity or Threat? The technology revolution is transforming conveyancing, from big ideas such as the Land Registry’s ambitious plans for the digitisation of Local Land Charges to online chain management and electronic transactions. What does this changing landscape mean for conveyancers? With such high value transactions the conveyancing profession is finding itself under attack from cyber criminals who are targeting the profession. Their methods are wide, varied and most importantly clever; they are obtaining mortgage funds by fraud and, as we have seen in this year’s SRA Risk Outlook, the creation of cloned vendor firms (bogus firms) to steal client’s money is a serious threat. There is also now an expectation that conveyancers will utilise the range of IT services available to them to safeguard their client’s transaction. Professional negligence claims are on the increase and property solicitors are more likely than any other member of the profession to face a claim. Lack of awareness of the risk management and compliance services that are available in the modern era is not likely to be accepted as a defence when faced with a claim.

So what can conveyancers do to help themselves? Firstly don’t panic! As the conveyancing world changes, it can easily seem daunting. However you don’t need to be particularly IT literate to compete and thrive in it. Tony Clarke, Operations Director at Searchpoint explains why it is imperative that firms and conveyancers move with the times; “Conveyancing is a vibrant and dynamic area of the legal profession. There’s a lot of support and a range of IT based services that conveyancers can call upon to help mitigate risk and protect their clients. Being aware of and employing these services shows that you have acted responsibly and with reasonable skill and care. Ignoring technology and the risk management tools that are available for conveyancing solicitors isn’t an option and could be the biggest risk of all.’

Website Security - First and foremost is the security of the online services that you use, how easy is it to hack and for criminals to gain access to your client’s information? There are two quick ways for you to test this; does the website address begin with https and show a locked padlock before the web address? If so then the website is secure and uses encrypted data making it harder to get into. Secondly you should have a password to gain access. This password should not be visible to anyone including the owners of the website. You can test this yourself by phoning your service provider and asking for your password, if they are able to give it to you then it is recorded somewhere which means it can be obtained and used fraudulently.

Vendor Firm Clones - Lawyer Checker is a commercially available service, with a database which determines whether the bank account searched against has a track record of successful use within conveyancing. Although acting innocently the results of being duped by a bogus law firm could be devastating for a firm including removal from lenders panels, stress, distraction and brand damage.

Electronic AML Checks - These are an excellent way to support your Customer Due Diligence and help ensure you are meeting your obligations under the Money Laundering Regulations 2007. As well as matching personal data with recognised and reliable sources such as the Electoral Roll they also provide matches against negative information sources such as mortality databases, PEPs and Sanctions Lists from all over the world.

planning applications, energy exploration schemes and infrastructure projects. Searchpoint are the leaders in this type of screening, providing you with a report which you can give to your client. The report details the hazards that have been screened for with the results in a traffic light format. This shows thorough screening on behalf of the solicitor but also provides protection, as it is up to the client if they wish to order additional searches, the solicitor has done their bit in informing the client of the potential problem.

Auto Boundary Mapping - This is a new feature which is starting to appear on a number of search provider websites. The freehold title boundary that surrounds a property is automatically shown when a case is created. This helps ensure the searches are ordered on the right property. It can also save time when ordering searches as you don't have to find and attach a boundary plan. instead you have the option to select the freehold boundary as registered at Land Registry via an interactive map. Tony Clarke - is Operations Director of Searchpoint, an online search partner. More information can be found at www.searchpoint.co.uk

Search Alerts - These are widely available and used by most online search providers. A property is screened against various databases to reveal if a hazard is present, which could affect your clients purchase. These include hazards which you may not be aware of such as;

Proactive, Professional, Problem Solving. Searchpoint provides a comprehensive range of conveyancing searches, insurance products and compliance tools for the conveyancing professional. T. 0845 680 5608 l E. enquiries@searchpoint.co.uk l www.searchpoint.co.uk

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Agricultural Law

R.A.B.I - the Royal Agricultural Benevolent Institution R.A.B.I - is a welfare charity which helps farming people in financial difficulty. Each year we support around 2,000 farming families and pay out around £2 million in grants. Our farmers produce the food on which we depend and are the guardians of the countryside we enjoy. But the industry operates against a backdrop of constant and increasing pressure. For example, dairy farmers have been losing several pence on each and every litre of milk they produce; due to a substantial drop in the prices they are paid. And that’s since the Commission for Rural Communities found, in 2010, that one in four farming families live on or below the poverty line. It is typically a very proud community, but R.A.B.I’s experience is that a combination of factors and events can eventually take its toll on even the most resilient of farmers and farm workers. This is why we always encourage those with limited savings and low incomes to get in touch rather than suffer in silence. Support is offered in confidence to people of all ages, and includes one-off, emergency or regular payments, as well as the provision of essential household

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Royal Agricultural Benevolent Institution

items and disability equipment. For working farmers, R.A.B.I can also fund relief staff to help in a crisis, and training through our Gateway scheme. This helps struggling farming people to develop their skills so they can increase their income off-farm and support themselves. For the retired and disabled, we can also pay towards care home and home-help costs - and we run two residential homes of our own, in Suffolk and Somerset. Our vital work is funded by both investment income and voluntary donations. Typically, money is raised at events arranged by county volunteer committees, businesses, community groups and our own fundraising staff; or donations come from charitable trusts and last but not least, gifts in wills. It’s thanks to a major legacy that we have been able to embark on a significant redevelopment of Manson House in Bury St Edmunds, one of our residential homes. But every gift, however small, helps us make a difference to farming people in need. We always say to our supporters: if the time is right and you are thinking of making a will, after taking care of loved ones, please consider helping R.A.B.I too.

We help farming families in financial difficulty. Farmers produce the food we depend on and look after the countryside we enjoy. Yet one in four lives on or below the poverty line (Commission for Rural Communities, 2010). Loved ones come first, but if your clients are able to leave our charity a gift in their will, however small, we promise we will value it highly and use it to change lives for the better.

Helpline: Website: General enquiries: Email:

0300 303 7373 www.rabi.org.uk 01865 724931 info@rabi.org.uk Charity Reg. No. 208858


Agricultural Law

In The Spotlight: Proprietary Estoppel There aren't many people who can tell you the price of a pint of milk. The estimated 10,000 dairy farmers in England and Wales can. They can also tell you the farmgate price and the cost of production. As the recent media coverage has highlighted, the dairy industry is in trouble as world markets have depressed the farmgate price to below the cost of production. The price of milk is influenced by such factors as the instigation of sanctions against Russia, the up scaling of milk production in Ireland and dairy units being built in China on an immense scale. The majority of dairy farmers (or their families) own the freehold of the farm. When incomes are falling, it is little comfort to know that their capital assets have increased in value more than three fold over the past 10 years as land prices have spiralled from an average of £2,500 per acre to over £8,000 an acre. Many farming families do not take a proper wage out of the business and are "employed" in the knowledge, or on the promise, that they will benefit from the capital, rather than the income. This is true of many farming families, not just in dairying. It can, of course, be a source of conflict, particularly as the value of farmland now means that it is worth arguing about. In the last year, the High Court has ruled on two cases involving farming families in Wales, coincidentally both called Davies, which have once again thrown the doctrine of proprietary estoppel into the spotlight. In the second Davies v Davies case ([2015] EWHC 1384), James (57) was one of five children. His father died in 1999. By wills made in 1999, the parents made substantially similar provisions in respect of the farm whereby it was left on trust for James until he reaches the age of 60 or dies earlier and subject thereto on trust to sell and divide the proceeds into five shares, one for each of the other four children with the fifth share for the James's children. James's view was that the provision in the wills was contrary to oral promises made by his father and assented to by his mother. He said that verbal assurances had been made that if he worked on the farm it would eventually be left to him. The promises had been made over a period of 40 years, starting when he was 16 years old. In reliance upon those

assurances he decided to work on the farm rather than pursue a career as a police officer, and did so for long hours at low wages. James argued that as a consequence, the beneficial interest in the farm belonged to him as a result of the doctrine of proprietary estoppel. As is commonly the case, there was no documentary evidence in support of the promises and his mother did not recall them. The witness evidence given at trial was the determining factor. In assessing the evidence and the estoppel claimed, the court referred to the comments of Lord Walker in Gillett v Holt [2001] Ch 210 in which he stated that the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all elements of the doctrine of proprietary estoppel and the court is required to look at the matter in the round. The judge in Davies ruled that the balance of probabilities favoured James's making the following findings on the evidence before him: • James's father had been keen to keep the farm in the family and James had been the most likely candidate to achieve this aim; • In later years, relations between James and his parents had deteriorated and the wills were drawn up during this period; • The "promises and conduct amounted to a clear thread which played a significant part to a greater or lesser extent, and reasonably so, in each of the important decisions which [James] made in relation to the farm"; • James had relied upon those promises and that conduct to his detriment; • Although there were countervailing benefits

Tim Price, NFU Mutual Rural Affairs Specialist

enjoyed by James to be taken into account, there was "a substantial balance of detriment" which would make it unconscionable to deny James an equity in the farm or to allow the provisions set out in the wills to take effect. James was awarded a beneficial interest in the farm, with the exception of the bungalow. His siblings did not get anything. Some might say that was a fair outcome after years of working for low wages, giving some security in an uncertain industry. Others might take the view that it was a windfall, against the wishes of parents who had thought they were benefitting their children equally. What it does show is that estoppel cases are unpredictable, particularly when the claim is largely based upon witness testimony rather than documentary evidence. If a case is unpredictable it is less likely to settle. There is a difficult balance faced by land owning families who have competing, often mutually exclusive aims: on the one hand, a real and genuine wish to try and achieve fairness between children and on the other, an understandable desire to see the legacy of a hard earned, lifetime's work continuing within the family for years to come. As is so often the case, family dynamics and relationships shifted over time and the impact of this can be significant. Josie Edwards is a Solicitor at Michelmores LLP. Michelmores has the largest team of agricultural lawyers in the country, offering practical and commercial advice to landowners, farming businesses, landed estates, institutions and others with interests in land and the wider rural economy. www.michelmores.com

"However, in an increasingly competitive global market place it is more important than ever for farmers to be able to plan ahead and invest to keep at the forefront of technological and marketing developments.

Key findings are: 54% of owners have no succession plan 64% of respondents believe that a lack of succession planning is a threat to the future of the farm 46% have not made a plan because of the difficulty of raising the issue of who will take over the farm 33% said they had not planned because the farm could only support one successor In 28% or cases, the farmer had no plans to retire 24% of owners said they could not afford to retire 18% said they had not made plans because of family conflict 36% of farmers plan to pass the farm on to the eldest son 35% of owners planned to share the business amongst more than one child 14% of owners plan to pass on the business to a child who isn’t the eldest

"To research the challenges farmers face we have teamed up with Farmers’ Weekly - and the responses to our online survey of over 700 farmers confirms that this is a worrying problem, with potential to threaten the long-term viability of thousands of farms.

"We hope the survey findings will help farmers see a way ahead - and open up channels to discuss the thorny topic of succession with family members. It’s an issue which is all to easy to put off to another day - but failing to plan ahead could mean the present generation farming your land could be the last."

"At NFU Mutual we know that our members view farming as more than a business. It’s a way of life for families who have often farmed for generations and involves family members of all ages. "And because the running of the farm is so tightly woven into the fabric of the family, it can be very difficult for farmers to make long-term plans for the future of the farm, including who will eventually take over.

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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 the charity and voluntary sector. £2.04 billion in legacy income was received in 2012/13. The most recent data from Legacy Foresight (an organisation that compiles data from 76 member charities) suggests that such legacy income is increasing (although year-on-year growth has slowed, in their opinion because of a slowdown in the rate of growth of the UK housing market). However, legacy income is still only 11% of total income from individuals and 5% of overall income to the sector. As solicitors and will writers we 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 rose from 4.9% to 10.8%. This increased to 15.4% when people were asked if there are any causes they are passionate about. Asking people at the right moment whether they want to leave a legacy is important, as is the way in which the question is asked based on knowledge of the options available.

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 a cash legacy with inflation. Another possibility is a gift of individual possessions, known as a specific legacy. This might be property, shares, rights or a valuable possession. It is also worth providing for what happens if the possession is sold during the client’s lifetime, otherwise the gift might fail completely. If a client would like a charity to benefit more significantly, an alternative option might be a residuary legacy. This involves giving all or a proportion of an estate to charity after expenses and any legacies have been paid. Finally, for more significant estates, the client may prefer to establish their own charity. This can happen either during lifetime, with the principal gift to that charity happening on death, or otherwise the charity is created in the Will itself. Clients can be concerned about whether existing charities would use the funds they receive in the way they would wish, or clients may have particular causes they wish to provide for. A bespoke charity can address these points.

Drafting the Will It is important that a charity is properly identified in the drafting of the legacy. The full name, address and registration number

Pictured: Chris Rowse

Pictured: Andrew Godfrey

should be included, and this information is often available from the Charity Commission for charities in England and Wales (or Scottish or Northern Irish regulators as appropriate). Many charities have a helpful section on their website with template wording for legacies.

the EU do now qualify, if the organisation would qualify for charitable status if it was based in the UK. It may also be possible to find a UK charity which will use the legacy to carry out activities aboard in the way the testator wishes (UK charities can of course provide benefit overseas, including to foreign charities). Gifts of foreign property to a UK charity will need careful consideration which is beyond the scope of this article.

• The UK Civil Society Almanac 2015, NCVO

• Legacy Foresight Bulletin (issue 2) 2015 • The UK Civil Society Almanac 2015, NCVO ‘Applying behavioural insights to charitable giving’ (28 May 2013), Cabinet Office 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 recipient 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. If a legacy intended for a charity fails, the property will become part of the deceased’s residuary estate. To avoid this it is advisable to discuss with clients whether they want to include power for executors to choose a suitable alternative charity if the intended charity no longer exists.

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 mostly not exempt from IHT. But gifts to an organisation within

The value of a gift to a charity or CASC will be deducted from the estate before IHT is calculated. In some cases this may bring the total estate value below the taxable threshold, which is £325,000 for 2015/16. This may also be used in conjunction with the increased nil rate band as proposed in the recent Summer Budget. 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, and the executors will then sell as bare trustees on behalf of the charity. If the asset is land it will be necessary to comply with provisions in the Charities Act 2011 concerning the disposal of charity land. Care will be needed regarding a potential SDLT charge arising when the estate still has liabilities at the time of appropriating 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. Andrew Godfrey and Chris Rowse are both at Russell-Cooke LLP. Andrew is a Partner in the Private Client Team and Chris is a Senior Associate in the Charity and Social Business Team.

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Legacies

The future of cancer research starts with you It’s hard to know what the future might bring but we do know that cancer is something that touches us all. Sadly many of us will experience, or indeed will already have experienced the impact that a cancer diagnosis can have - it can be devastating, everything changes. Thankfully advances in our understanding of the biology and genetics of cancers mean we now have more targeted treatments and are able to diagnose cancers earlier, so survival rates have improved significantly in recent years. In fact between 2006 and 2011 survival from diagnosis doubled from an average of five years to 10 years. But we have a long way to go. Survival rates vary greatly between different cancer types and we currently only have drugs that target 5% of the 500 cancer genes we know of. At the ICR we want to continue developing more effective treatments for patients, no matter what type of cancer they have and our track record in this area is unrivalled. It was our scientists who developed the drug abiraterone which recently became available

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on the NHS for men with advanced prostate cancer - men who previously had no further treatment options. There is no one-size-fits-all way of treating cancer and it can take many years of research to produce a discovery that leads to a new treatment; for example, it took 20 years before abiraterone could be used widely in the clinic. At the ICR we are working to increase the speed in which new treatments get to the patients who need them, but we can’t do it alone. That’s why legacies are so important to us. Knowing that we can rely on future funds allows the ICR to embark on major research initiatives and invest long-term in finding solutions to defeat cancer. To find out more about the difference legacies could make to the future of cancer research,

please visit our website icr.ac.uk/legacy or call Marcia on 020 7153 5387 or email legacy@icr.ac.uk “Having been a researcher at the ICR for almost 20 years, I have seen it go from strength to strength. I am proud of the impact its research has had, and will continue to have in the future. I decided to leave a legacy to the ICR in my Will because I want their vital work to continue” Professor Robin Weiss FRS, former Director of Research at the ICR


Legacies

SBA - a good friend in times of need SBA The Solicitors’ Charity has been working at the heart of the profession for over 150 years to ensure that no solicitor is unsupported in times of need or crisis. Many South London lawyers have known about the charity since the day they were admitted but for others, news that the profession has its own benevolent fund, run by and for solicitors and their families, is a complete surprise. £345,000 to South London lawyers and their families SBA’s core purpose is to relieve the financial hardship of solicitors, former solicitors and their dependants. In the last five years alone, SBA has distributed £345,000 in outright grants and interest-free loans (usually secured) to South London lawyers and their families. Awards cover a wide range of essential everyday needs, including help with the basics, such as food, clothing and heating. SBA can also help with one-off items, when boilers break down or roofs need repairing. On occasion, we can take care of priority debts, if clearing them will bring household finances back on to a permanently even keel.

Help with career transition SBA now offers help with career transition as well as financial support. Solicitors who qualify under the financial criteria can join a three-month programme which offers holistic career, job search and wellbeing support via a professional consultancy. This is an

e-learning, portal-based service, backed up with one-to-one skype and telephone coaching. Where appropriate, SBA can also provide financial support during the programme, so that participants can really focus on their job search, rather than worry about day-to-day household finances.

Visit www.sba.org.uk for more information, telephone us in confidence on 020 8675 6440 or email sec@sba.org.uk

Help spread the word Despite being one of the best known of the legal charities, general awareness of what SBA can do to help - especially amongst younger solicitors and HR professionals - is still too low and we need our colleagues in South London to help spread the word. If you know someone who is finding it hard to cope, please mention SBA. If we can help, we will.

A legacy to the profession A gift in your Will can help SBA transform the future for many solicitors and their families. Loved ones come first but a gift in your Will means you can leave a lasting legacy of support for those whose lives in the law have been spent helping other people.

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Legacies

Canine Care Card Some dog owners worry about what might happen to their dog if they were to pass away first, leaving their beloved four-legged friend without an owner. Thankfully, Dogs Trust, the UK’s largest dog welfare charity, offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, it also helps to ease the minds of friends and family during what is already a distressing time. Over the past 12 months, Dogs Trust has taken in a whole host of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes. Two such dogs are Poppy and Petal, a devoted duo who arrived at Dogs Trust Bridgend after their owner passed away unexpectedly. Whilst the loveable pair were unable to be cared for by family members, Dogs Trust Bridgend was able provide them with a home away from home while they awaited their furrytale ending. Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving owner. Currently being cared for by the staff at Dogs Trust Bridgend, Petal and Poppy are awaiting a loving new family to give them a second chance at happiness.

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Adrian Burder, Dogs Trust CEO says, “Thanks to Dogs Trust’s Canine Card Card scheme, dogs in need of a new home are given a lifeline meaning that Poppy, Petal and many dogs like them are able to get a second chance at happiness and bring joy to a new family. If you decide to become a Canine Care Card holder, we will issue you with a wallet-sized card. It acts in a similar way to an organ donor card and notifies people of your wishes for your dogs, should anything happen to you. Dogs Trust also strongly recommends that you mention the care of your dog in your Will. That way, there can be no confusion about your wishes”


Case study

Case study - Sara Frisby, Tactical Employment Solicitors Tactical Employment Solicitors is a specialist employment practice established by Sara Frisby in 2014. The firm is a boutique employment practice with a very clear vision of the service it offers to clients. It has a manifesto and its core values are Technical, Transparent, Tenacious and of course, Tactical. For senior executives, the firm regularly advises on settlement agreements, exit packages, team moves, contractual documentation and remuneration packages for senior executives. For corporates, the firm drafts forms of contractual documentation, advises on redundancy processes, terminating employment and employment aspects of corporate transactions. Tactical Employment Solicitors defends all forms of employment litigation and conducts workplace and employment mediation. When Sara set up the practice she needed to implement a technology system from scratch. She initially chose a hosted system which seemed appropriate for the size and needs of the organisation. However, after the initial installation she soon realised that the solution that she had chosen didn’t lend itself well to her needs. There was little integration with Microsoft Office and she found the system’s forms management process very cumbersome. After a couple of months of struggling with the original system, Sara began to look around for a suitable alternative. She needed to get it right the second time. She was introduced to LEAP and was persuaded to trial the product. She began using the software in January 2015. She commented that “the integration was very simple, with not too many workflows and it worked straight away unlike other cumbersome systems.” Sara says the cloud aspect of LEAP works very well for her and her firm. It’s well supported and she has had good follow-up and technical support when she has needed it. “The cloud works for me” she says. “LEAP is not just another product and there is a huge amount of development being undertaken for the system which I find reassuring, knowing that it is future-proofed.” Sara also feels very reassured regarding back-up and disaster recovery arrangements.

“I have spent a considerable amount of time researching the various compliance issues and implementing procedures relative to using a cloud based system. LEAP has been very supportive throughout this time. The system is backed up every eight seconds to eight different servers within the UK. Paper files can never be maintained at that rate.” One of the benefits of LEAP is that if you are working online and your data connection drops out, that you can continue to work offline and the system syncs when you regain your connection. According to Sara, LEAP is a very simple system to use. She admits to having been a little sceptical initially. LEAP recommended she split her SRA accounting and practice accounting between LEAP and the Xero accounting package. However she found that it works very well, giving her full matter history and financial information at her fingertips. “My accountants love the fact I work with Xero and I still retain total control of all SRA accounting through LEAP.” Sara is looking to have a virtually paperless office by the end of this year, taking advantage of the scanning features of the software and the notes section. Sara runs a small practice, she likes to roll her sleeves up and give strong, practical advice. When asked whether the LEAP software has enhanced her work/life balance Sara joked “I’ve got three kids and my own firm. I don’t have a work/life balance! Seriously, LEAP helps me optimise my worklife balance as the software lets me work flexibly and the information I need is always up to date and on the system.” Version control is a breeze and she can continue working securely from home in the evenings (which suits many of her senior executive clients who don’t want to speak during the day) without taking confidential papers out of the office.

She says that the LEAP software enables her to run her practice more efficiently, and it gives team members carte blanche to work where and when they want, with no set hours, just having the objective of getting the job done. Recently Sara used the mobile aspect of the software for the first time when she was out and received a time critical work enquiry at 5.20pm. She was pleased that she was able to sort the issue out immediately and with full access to all her information from her mobile phone. She also gives the example of an average day during the summer holidays where she checked her emails at home, dropped the kids at summer camp and then continued to work in the office. LEAP software has helped Sara’s firm to grow and enabled her to hire, and keep, people on a flexible basis as required, with no additional office space needed and a hot-desking culture in place. It has helped her provide a more attractive working environment and a better work-life balance for everybody. “We have had a fantastic first year - projected turnover doubled and we have exceeded expectations in the type of work and clients we have attracted. Working with LEAP has certainly contributed to this success because it enables us to be responsive, accurate and efficient in our dealings with clients”. Going forward, the strategic plan is to retain and attract new work, to go paperless, recruit additional team members and above all to continue to provide a true to values, first class service to the firm’s clients. For further details: Tel: 0845 683 2517 Email: info@leap.co.uk Web: http://leap.co.uk

The LEAP package is progressive Sara says, and enables her and her team to continually adapt and behave in a forward-thinking manner. She does profess to be “reasonably techie” herself and has an open mind to embracing future technology.

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Interview

AN INTERVIEW WITH THE SOLICITOR GENERAL: ROBERT BUCKLAND QC MP What the modern Solicitor General does as one of the two government law officers By Phillip Taylor MBE, Richmond Green Chambers. It seemed appropriate to find out a bit more about the work of the Solicitor General in the new government so I asked Robert Buckland for a profile interview to talk about his role, his hopes for the future and his experience as one of the younger members of the government. And this is the result! As the newly re-appointed Solicitor General for England and Wales, he agreed to a profile interview after the General Election in May 2015 which has resulted in a majority Conservative government for some years, and also the possibility of some dramatic changes in the political landscape following this victory now that we have five-year parliaments. So what does the current Solicitor General actually do and who is he?

The Current Solicitor-General The current Solicitor is Robert Buckland QC, the Conservative MP for Swindon South who was first elected in 2010 having won the seat from the Labour Party. He succeeded Oliver Heald MP on 15th July 2014 which is St Swithin’s Day and we did discuss the issue of whether it was raining that day or not (it wasn’t). And, as it happened, I interviewed him one year later and it also did not rain so the omens looked good. Buckland has fought a number of elections and by-elections in the past so he comes to Parliament with a substantial campaigning track-record. He is a well-known supporter of Britain’s membership of the European Union so that probably gives the reader a good indication at the outset of where he stands politically even if you read his parliamentary biography and see the range of interests mentioned. In the Commons he was elected as a member of the Justice Select Committee, and he chaired the allparty group on Autism between 2011 and 2014 amongst other matters. So it’s fair to say that he spent much of his backbench parliamentary life involved in legal matters prior to his appointment which is why he can to the Prime Minister’s attention. My interview began with Buckland’s legal work prior to the new appointment. He practised as a barrister from 1992-2010 and specialised in criminal law, being appointed as a Recorder in the Crown Court in 2009. He took silk in 2014 and is a Bencher of

The Clapham Omnibus 30

Inner Temple. As Solicitor General he does appear regularly in court as does the Attorney General although I did not explore specific cases during this profile interview. The office of Solicitor General is a not well known office although he acts as deputy to the Attorney General who has the more prominent role. In fact little is really known of the role of the two Law Officers particularly that of the Solicitor so Robert more than obliged with a bit of its history which stretches back to Tudor times! Most of us, as constitutional lawyers, will refer back to two books from our days as law students for a clue as to the role of the Law Officers: Rodney Brazier’s excellent and contemporary “Ministers of the Crown” (1997) and the even earlier, J Edwards “The Law Officers of the Crown” (1964). The reality of these two appointments is now rather different as they appear to be the family lawyers for the ‘Government family’. Brazier describes the ancient offices as “ministerial in character” setting the date of the office of Solicitor-General from 1515 on the authority of no less a legal luminary than Sir William Anson in his definitive work “The Law and Custom of the Constitution” (1907). So that date is what we agreed in during the interview although we do not have anything more specific.

Law Officers as Active Politicians For some considerable time in the modern era the two government Law Officers are active politicians, albeit ones who are charged with these special ministerial duties which rank as most fascinating givers of legal advice to such a rare client (the Cabinet). Buckland’s office can be traced back to what is seen as its first recognised holder, Sir John Port around 1514-1515. Port was involved later in the trials of Thomas More and Anne Boleyn so the post is mostly Tudor in its early development. So, at the time of writing, the Solicitor is commemorating the anniversary of the creation of the role some 500 years

ago and I wished him a very happy anniversary. What immediately becomes quite noticeable when interviewing Buckland is the approach which the Law Officers are required to adopt and have developed over the centuries. They have performed some delicate duties which have been devolved upon them: ‘tricky’ would appear to be the word. Such duties have led to the need to achieve a balance between the political ticket they have been elected on in the Commons and the legal responsibility to give the government of the day ‘the bad news’ when the occasion demands it, which can be quite frequent without going into specific cases. And this is where Robert Buckland comes in. He has that refreshing and enthusiastic approach to his work which is why David Cameron appointed him on that non-rainy St Swithin’s Day in 2014. Born in Llanelli, Robert was educated at Durham and Called to the Bar at Inner Temple at the same time as me, in 1991. Buckland’s early years in practice were predominantly on the Wales and Chester Circuit with chambers in Swansea specialising in crime and he is a product of the new Bar Vocational Course which was introduced in 1989 which indicates what many of us as practitioners recognise as a ‘turn’ away from the older teaching and training methods for the Bar. And Buckland, coming from a legal background, is an enthusiastic supporter of the circuits and


Interview the Inns of Court seeking an expanded role for the Inns in the future as he comes from a “new” Bar which loves communicating, and enjoys debating and analysing legal argument

Human Rights Reform The big question to be asked was inevitably about human rights and where we are today. Robert disclosed that he did go on strike with colleagues over legal aid cuts some years ago. He is well aware of the specific problems which we are continuing to face at the Criminal Bar and which any member of Counsel is aware today in practice. Both he and the Attorney are also very well aware of what we face in austere Britain. They have no power to do much about cuts even if they could do so. It says much for the Solicitor that he was quite frank with me about strikes over legal aid when many would duck the issue entirely. And dealing effectively with the human rights issue really is about the ‘art of the possible’. Buckland did say in a speech on Human Rights Day last year that “my practice in South Wales was predominantly criminal legal aid, so the liberty of the individual lay at the heart of my work. I have been a human rights lawyer, like thousands of fellow barristers and solicitors, for nearly 25 years. It’s just that I didn’t think to call myself one!” I am sure that this quote sums up what virtually all lawyers feel about the issue and it was apparent that human rights reform

will run for many months before we see new proposals from the incoming government.

The Solicitor’s Job Description The Solicitor provides support for the Attorney in a number of particular areas: superintendence of the Treasury Solicitor’s department, the CPS, the Service Prosecuting Authority, HM Crown Prosecuting Service Inspectorate and the SFO. Buckland also gives support on civil litigation and advice on civil law matters and the public interest function. What will be of interest to readers is that he does appear in court regularly with the ‘hands on’ approach and the post of the Solicitor is held by… a barrister… which is so British! In fact there is a good reason for this because of the advocacy role of the Solicitor in the higher courts although any lawyer with higher rights could of course fulfil the role as I am sure all readers would probably agree.

The Development of Legal Apprenticeships The continuing development of legal apprenticeship schemes is an important policy for the law officers and continues after the Addleshaw Goddard initiative on offering higher apprenticeships. Buckland is a great communicator and has an infective enthusiasm for the Legal Trailblazer Apprenticeship scheme which is just the start of a new entry route to the profession. The Inns of Court and the circuits and maintaining the traditions of the law are clear priorities for the Solicitor.

The Rise of Public Legal Education (PLE) With the end to a ‘legal aid for all’ culture which will not return in the foreseeable future, where do we go with the vexed question of ‘litigants in person’ which is raised at so many meetings today? The Solicitor confirmed his strong support for the continuing development of the “Public Legal Education” (PLE) which has an important role to play in modern legal

proceedings if access to justice is to be made available to all. PLE is being rolled out in welfare law although it would seem another main priority for the law officers during this Parliament and they are both young experienced men tasked to see it through whilst maintaining the rule of law which began 800 years ago at Runnymede. The public are clearly well served by our current law officers and this point emerged firmly from the interview. If they do nothing else, they can act as a break on some of the more outrageous policies of the day pursued by the government which may cause legal difficulty although they remain to some extent ‘outsiders’ from the party political process because of their functions and approach which seems to me to be very healthy with a majority government. It is astonishing that criticisms still surface from the usual suspects about new appointees emerging as complete unknowns to many on appointment but that’s the political process in practice- after all, who had heard of Margaret Thatcher or John Major as they emerged from the ministerial shadows to become party leaders? But that is the beauty of British politics, even spreading to issues of the Labour Party leadership. So with the government’s law officers today who are both younger and established professionals do not have high public profiles (and probably shouldn’t have them) but they do very much represent the extremely high quality of talent now practising at the Bar which remains the envy of the world. So be it! The conclusion is that both the Attorney and the Solicitor are two safe pairs of hands starting their new terms of office after their respective “political pupillages” under the coalition government and there will be the many hard cases to handle. Both are excellent choices for this curious and demanding portfolio for the twenty-first century.

TheClapham ClaphamOmnibus Omnibus 31 The


News

The legal aid cuts: why I turned my back on the law Today I’m a freelance writer. Three short years ago, I was an enthusiastic criminal defence solicitor. I represented people at the police station. I did trials at the magistrates’ courts and a handful of hearings at the crown courts, too. I even won my first trial. I had no idea that redundancy was looming, that I was about to have a head-on collision with the Conservative government’s unrelenting public sector cuts.

“Half of those doing criminal work earned less than £50,000 in 2012-13 before overheads - a net income of £27,000 a year.”

There was less work. Fewer cases going through the police stations and the courts. The cuts to the criminal justice system were filtering through and hitting defence firms like ours. It’s not because fewer crimes were being committed. It’s because the police and the courts were too squeezed to handle them properly. We had a case where a defendant stabbed someone. Instead of being hauled through the courts on a grievous bodily harm charge, he got a police caution, a telling-off: “Please don’t stab anyone again.”

Lorry drivers are paid more than this. Over the last couple of years, the legal aid cuts have brought about the first strikes in the history of the British legal profession. This isn’t because criminal lawyers are desperately trying to make sure they have enough cash for a new Mercedes every year - as many misinformed and uneducated people still accuse. That’s never been the case. As the figures show, compared to a lot of professions - and all non-legal aid lawyers - criminal lawyers are poor. The strikes are because they’re worried about two things: the degradation of the justice system and being able to feed themselves.

As a result, my firm found itself chin-deep in a financial quandary. There was less work to be done, and the tightly budgeted Legal Aid Agency was failing to make prompt payments for the work we were doing. The only solution was redundancies. I still remember the phone call I got from my boss: “sorry - you made the cut.” The public has no idea what’s going on. The cuts are having a detrimental impact on justice, but the general populous doesn’t care. To them, anyone who gets arrested is guilty of something. Not until they get arrested for something they didn’t do and have to experience our deteriorating system for themselves will they realise. The general public doesn’t care about the lawyers either. They bundle all of them into the same box. A box labelled ‘fat cats’. People still aren’t alive to the gargantuan gap between corporate lawyers and criminal lawyers. Corporate lawyers earn hundreds of thousands of pounds a year, millions in some cases. But thousands of legal aid lawyers are earning less than £30,000. Some even earn less than the minimum wage. Chairman of the Bar Alistair MacDonald QC said:

What’s worse is that the figures above are from before the latest round of cuts. A further 17.5% has been sliced off the fees for legal aid cases - which were already too low. Now, if someone gets arrested in Gloucester for example, the firm dealing will get paid a paltry £140.25 for the police station case. If the client is difficult, has mental health problems, needs an interpreter or raises some kind of complex legal issue for the lawyer to deal with, it’s still £140.25. In fact, the firm has to spend more than ten hours working on the case to get paid any more than the fixed fee. So if the firm’s just under the ten hour threshold, that’s a frankly laughable £14 an hour for the solicitor’s work. I haven’t even mentioned the most controversial part of the legal aid changes: the new contract system. The number of criminal legal aid contracts awarded to firms has been slashed from 1,600 to 527, a move that is going to cause hundreds of criminal firms to go bust. Basically the government wants fewer solicitors handling more cases. It’s the same demand they’ve

been making of the whole public sector: work harder for less pay. Yet all barristers and solicitors - regardless of what area of law they go into - have to go through six to seven years of very expensive studying and rigorous training before they qualify. They have to be intelligent, academic, work hard and be indomitable. They deserve to be well paid. The reality is, criminal lawyers are only going to become poorer and more overworked as the Conservative government continues its illthought-out crusade. This is why I’ve left law behind. All criminal lawyers are at huge risk of redundancy and pay cuts. It’s not a viable industry to be a part of, and it’s not about to become one soon. After I lost my job, I practised employment law and civil litigation for a year, but something else was calling to me. Writing. I’d been a writer of fiction since I was young, and it was during my time at my last law firm that copywriting caught my interest. So I trained and qualified with the Blackford Centre for Copywriting, and the rest is history. I only hope that there is a light at the end of the tunnel for my friends and former colleagues still trapped in this eternally squeezed profession. At the moment I feel like they’re stuck on a sinking ship – and I made it aboard the life raft. As a professional copywriter and former lawyer, Christopher Berry is uniquely placed to write articles, websites, brochures and blogs for law firms. If you’d like him to write for you, please contact him on 07857 968707 or cr_berry@outlook.com. You can visit his website at christopherwritescopy.com.

The Clapham Omnibus 33


Book Reviews

365 DAILY ADVOCACY TIPS by Leslie Cuthbert BLOOMSBURY ISBN: 978 1 78043 832 0 www.bloomsburyprofessional.com

AND FOR THE LEAP YEAR TIP… BUY THIS FASCINATING BOOK ON ADVOCACY HINTS! An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Yes, this superb little pocket book by Leslie Cuthbert entitled “365 Daily Advocacy Tips” is published by Bloomsbury Professional and gives advocates (solicitors and barristers) across all legal fields some well thoughtout, useful and effective practical tips on the advocacy skills needed for 21st century. These special skills have been honed down, developing over the years to suit the changes in style and judicial attitudes of the day. The book includes the impact of psychology - quite important as any reader and analyst of English Literature will know - to enable practitioners to be more confident in the way one advocates now, and to be of relevance to current practice in 2015 with all the mistakes of the past firmly behind us. “365 Daily Advocacy Tips” is undoubtedly a text for all advocates, from the beginner just out of law school to the experienced (or think they are experienced) practitioner. We feel having read this book that people in many walks of life, not just lawyers, can benefit from the tips whether involved in civil, criminal or other proceedings especially with the growth of litigants in person in the post ‘legal aid for all’ era. As the author says, the tips are non-jurisdiction specific and so they are relevant to advocates all over the world, including our rather brash colleagues in the North American continent! The content of the book covers a range of helpful quotes, points from psychology and of course best practice points to gain the requisite brownie points with the judge. Cuthbert has included brief snippets of useful information giving as wide a range of interesting pointers and hints as possible which will give us all a few ideas about how to tackle some of the more hideously difficult

cases. Unlike most books about advocacy, this one provides useful insight into psychology which is often overlooked, and it also explains how to break down the rules of argument and rhetoric which is a good discipline to adopt early on in your practice. One other constructive observation is the coverage of acronyms to help remember techniques (a good training device), useful quotes from history and literature which can be used in cases (but don’t bore the judge) and references to other texts both legal and non-legal which makes the book more than just a guide for the lawyer advocate. Politicians might also find it helpful! One of our contemporary expert advocates who are established as seriously good in court is Iain Morley QC. He is well quoted when he writes in favour of these tips saying: "this book is a good idea… what I like is there will be one idea every day - and only one. Your mind will not get jumbled. Think on what you read... some ideas you will like. Others may not work for you. With advocacy, this is always the way. But the point is to try things out - one day at a time." One can see from Iain’s seminal work “The Devil's Advocate” now in a third edition from Sweet and Maxwell of such sage advice for modern practice. The advocacy suggestions given throughout are rightly described as “packed with pithy, serious, amusing, and thought-provoking tips for each day of the year, from a refreshingly diverse range of sources” and of course, it is the originality of the advocate’s approach that can make a profound difference to the outcome of a case. What we liked in particular was that the tips give a fascinating insight into the principles of good advocacy whilst offering essential practical knowledge of related topics such as how people make decisions, indicators of credibility and the 'rules' of argument and rhetoric. And unlike many advocacy guides “365 Daily Advocacy Tips” gives a refreshing insight into this world of psychology and how to break down the rules of argument and rhetoric so you can succeed with your approach. It offers most suitable acronyms to help one remember techniques with useful quotes. Lengthy and studious volumes of advocacy have had their place and they don’t feature much in the ‘teaching’ of advocacy if it can, indeed be taught, but once in a while just a morsel of advice might be needed to change an entire day's work

and this is where it might be found. Cuthbert’s list is a calendar of tales and tips from the world of advocacy and it does prove an able companion for every advocate serious about continuous and incremental improvement in their knowledge, skill and practice with the added bonus of plenty of space to jot down your own ideas throughout the book. We can give you some examples taken directly from the book without spoiling it for those readers new to advocacy: when questioning always remember to KISS: “Keep it Short and Simple”; and in Cross-Examination (XX) aim to TELL the witness the answer you want rather than ASK for a response such as "you were at home, correct?" not "were you at home?"- see the subtle or not so subtle difference; and never forget that correlation does not equal causation as the author points out. Some common sense points are also explored: do not read out the entirety of your argument (in other words written down as it doesn’t work and remember your delivery!) or seek to memorize the totality of what you wish to convey (because that doesn’t work either). The author mentions that a common helpful approach is to remember the introduction and the last paragraph which is a basic structural point: "begin with the end in mind" is a useful concept to focus upon. Absolutely right! Other sensible guidance includes: how the advocate should dress (outside formal robing) and how to present oneself which can be an incredibly important factor even in 2015 after years of sloppy dressing however ones feels about this. And remember the nature of the judiciary itself as one judge has put it: "the burden of proof is on the advocate in the polyester suit!" Hm! But please do not think that this is some sort of sartorial snobbery- it isn’t, it’s merely a practicality in reality… and that is why Cuthbert’s book is an exercise in reality and how to win in 2015… getting the book is tip 366.

CIVIL COURT SERVICE 2015 General Editor: District Judge Graeme

Smith and a team of contributors Includes a CD Jordan Publishing ISBN: 978 1 78473 058 1 www.jordanpublishing.co.uk

GOOD NEWS FOR “BROWN BOOK” PRACTITIONERS: THE ‘NEW CIVIL COURT SERVICE 2015’ IS OUT NOW. An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

In this 800th anniversary year of Magna Carta, ‘what,’ asks General Editor Graeme Smith, ‘would King John and the barons have made of today’s civil justice system?’ If there’s an answer to that, it would probably be that they’d need “The Brown Book”. Well, actually, the barons would. King John was most probably illiterate. This new edition reflects the latest amendments to the CPR, which indicate its continuing state of change. There are amendments to reflect case law… to incorporate new legislation… and to incorporate new European regulations and amended European regulations. There is a new Part incorporating the remaining rules of the High and County Courts. Other amendments, the RTA Protocol, for example reflect changes in policy or practice which are most welcome.

Once again Jordan’s has published its new edition of the Civil Court Service 2015, widely known and appreciated as ‘The Brown Book.’ At the time of its publication at around Easter of this year it was regarded as the most up to date statement on main civil jurisdiction practice.

Logically organized with the needs of the practitioner in mind, the editors and contributors have introduced a new style of introduction for the Parts of the Rules most frequently referred to. This, for example, includes an overview of the Part, a list of the relevant Principal Forms, a summary of significant recent developments and more.

As it has appeared annually since 1999, this in itself is a testament to the high regard in which it is held by practitioners. Publishing annually is of course a dire necessity in view of the relentless tide of changes constantly emerging within the civil justice system.

Another change implemented in response to reader demand is that the Courts Directory, now online and therefore omitted from the previous edition, has now been reinstated in this new one, following quite sensible suggestions that practitioners do need to have this

The Clapham Omnibus 34

information available in a work of reference as well as online. (Would that other institutions and/or publications would take this responsive and enlightened view.) Certainly this volume of more than 3,300 pages is an invaluable reference resource, containing tables of statutes, statutory instruments, cases and practice directions. There is a detailed index at the back and - this is handy - a Civil Procedure Rules Quick Finder on the inside back cover. Also attached to the back cover is a CD-ROM. Note too, the ‘stop press’ insert listing the latest developments on fees. We as practitioners are grateful - believe us - for this excellent service - reliable, current and unarguably speedy - provided by this new ‘Civil Court Service.’ Every practitioner needing to stay up to date with developments within the civil jurisdiction should acquire a copy.


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Clapham Omnibus Autumn 2015  

Clapham Omnibus the official magazine of South London Law Society Autumn 2015

Clapham Omnibus Autumn 2015  

Clapham Omnibus the official magazine of South London Law Society Autumn 2015

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