Bill of Middlesex Autumn 2016

Autumn 2016

The BILL of

Middlesex Official journal of the Middlesex Law Society

Inside this issue: › ›

Conveyancing Focus Probate

PRESIDENT COMMENTS ON THE OPPORTUNITIES CREATED BY BREXIT. (See Page 5)

Marilyn Willows Conducts AN INTERVIEW WITH DISTRICT JUDGE WICKS (See Page 13)

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Contents 5

24

ADVERTISING AND FEATURES EDITOR Anna Woodhams

DESIGN AND PRODUCTION MANAGER John Barry

ACCOUNTS DIRECTOR Joanne Casey

MEDIA No. 1456

25

9

EDITOR Sundeep Bhatia

PUBLISHED August 2016 - © Bill of Middlesex Benham Publishing

LEGAL NOTICE © Benham Publishing.

None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press.

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30

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

DISCLAIMER The Middlesex 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.

32

Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

COVER INFORMATION The cover image: Marilyn Willows, Trainee Solictor at Desor and Company Solicitors.

Copy Deadlines Winter Spring Summer

24th October 2016 17th February 2017 2nd May 2017

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

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

13 5 6 9 10 12 13 15 19 20 21

INTRODUCTION COUNCIL MEMBERS EDITOR’S COLUMN COUNCIL MEMBERS REPORT NEWS INTERVIEW DRAINAGE LAWS LEGAL COSTS TECHNOLOGY MANAGEMENT

22 ARTICLES 24 NEWS 25 COMPULSARY PURCHASE AND PLANNING LAW 27 PRIVACY LAW 28 LEGACIES 29 CONVEYANCING 32 TECHNOLOGY 35 BOOK REVIEW The Bill of Middlesex 3

officers COMMITTEE MEMBERS

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

Past President

OFFICERS FOR 2016/17 President:

Gurmeet Kharaud

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

Fort & Co. Solicitors

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

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

H B Matthissen, G Parkinson, HHJ R D Connor,

(020 170 8433) (DX 5119 Ealing)

A Bates, J J Copeman-Hill, D B Kennett-Brown,

e-mail: gk@fortsolicitors.com

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

Sundeep Bhatia of

W J C Berry, AS Atchison, L M Oliver,

Beaumonde Law Practice

S W Booth, D D P Debidin, R E J Hansom, E H Lock,

Audit House, 260 Field End Road, Eastcote Middlesex HA4 9LT (020 8868 1614)

MAURICE GUYER

e-mail: sundeep.bhatia@beaumonde-law.co.uk

e-mail: mguyer@vickers-solicitors.co.uk

Honorary Treasurer: ELISABETH VAN DER WEIT

A Darlington, S Chhokar, Ms M Crowley, Professor M Davies,S Hobbs, Mrs R Sriharan, Mrs S Scott Hunt, D Webb,

Professor Malcolm Davies Head of Ealing Law School

PARLIAMENTARY LIAISON

University of West London

Michael Garson

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

Hameed & Co. 4 Grand Parade, Forty Avenue, Wembley Park, HA9 9JS

Maria Fernandes of Fernandes Vaz Solicitors

(020 8904 4900)

87 Wembley Hill Road, Wembley Middx HA9 8BU

e-mail: hameed@hameed.plus.com

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

G Kharaud

Vickers & Co. 183 Uxbridge Road, Ealing W13 9AA

S B Hammett, Miss F A Shakespear, HHJ P E Copley, A M Harvey, H R Hodge, G R Stephenson, B S Regler,

Honorary Secretary

(020 8579 2559) (DX 5104 Ealing)

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

(020 873 30123)

SOCIAL PROGRAMME 2016 - 2017 Annual Dinner Dance on 11 November 2016 Past Presidents Dinner - TBA Regional Lunches TBA Pub Meetings TBA

e-mail: info@fernandesvaz.com Honorary Social Secretary: DAVE. P. DEBIDIN Debidins Solicitors 47 Mount Park Road, Ealing W5 2RS (020 8567 1381/6343) (DX 5105 Ealing) e-mail: info@debidins.co.uk

Stephen Hodgson Lecturer in Law, Ealing Law School

St Marys Road, Ealing W5 5RF

e-mail: stephen.hodgson@uwl.ac.uk

EDUCATION & TRAINING PROGRAMME 2016 – 2017

Maralyn Hutchinson of Kagan Moss

Training Sessions TBA See Bill of Middlesex magazine for ongoing events

SUSAN SCOTT-HUNT Principal Lecturer in Law, Middlesex University The Burroughs, Hendon NW4 4BT

Contact Administrator or Hon. Social Secretary for details or visit our website

University of West London

(020 8231 2406) Honorary Membership Secretary:

See Bill of Middlesex magazine for ongoing events

22 The Causeway, Teddington, Middx TW11 0HF

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

(020 8977 6633) (DX 35250 Teddington) e-mail: maralyn.hutchinson@kaganmoss.co.uk

Council Members for the Middlesex Area: Central & South Middlesex

Zulfiqar Ali Meerza of Serious Fraud Office (SFO)

Michael Garson of

2 – 4 Cockspur Street, London SW17 5BS

Kagan Moss

(020 7084 4890)

22 The Causeway, Teddington TW11 0HF

e-mail: zulfiqar.meerza@sfo.gsi.gov.uk

COMMITTEE MEETINGS 2016 Mon 20th June Mon 19th September Mon 21st November 2017 Mon 16th January

Mon 18th July Mon 17th October

Mon 20th February

(020 8977 6633) (DX 35250 Teddington) e-mail: michael.garson@kaganmoss.co.uk

North Middlesex Michael Singleton of Singletons Austin Ryder

Miles Sriharan of Sriharans Solicitors 223 The Broadway, Southall UB1 1ND

AGM Wednesday XX March 2017

(020 8843 9974) (DX 119583 Southall 3) e-mail: miles.sriharan@sriharanssolicitors.co.uk

2 Crossfield Chambers, Gladbeck Way, Enfield EN2 7HT (020 8367 0387) (DX 90604 Enfield)

Renuka Sriharan of Sriharans

e-mail: michael.singleton@singletonsuk.com

223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3)

Mark Hudson

e-mail: info@sriharanssolicitors.co.uk

Regional Manager, The Law Society Greater London Regional Office, The Law Society,

Alberta Tevie of Sriharans Solicitors

113 Chancery Lane, London WC2A 1PL

223 The Broadway, Southall UB1 1ND

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

(020 8843 9974) (DX 119583 Southall 3)

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

e-mail: albertaot@gmail.com

4 The Bill of Middlesex

www.middlesex-law.co.uk

introduction

President’s Review “I strongly believe that Lawyers never give up on life or on their profession.

Lawyers do not complain about undergoing hardship. They do not undergo hardship. They overcome”.

B

rexit may happen but I believe that Lawyers should not be alarmed, worried, concerned or depressed. If and when access to the European free market is restricted or closed, then there will still be many markets around the world to access. The Legal profession is better placed in this scenario than any other trade or profession.

The Commonwealth is bigger than Europe in area, population and in the number of Member Countries it comprises. A large number of commonwealth countries invoke the Rule of Law by practising English Law. These countries may have adapted constitutions and local laws to suit their local needs and cultures.

But their laws are based on English Law. Both English Law and English lawyers are held in high esteem by commonwealth countries. Other countries such as those of the Middle East, and some parts of Africa, would warmly welcome the involvement of Great Britain and English Laws. We now need to look out for opportunities in these jurisdictions.

India, China, Australia, Canada and many other countries require English lawyers and Law Firms to carry out their corporate and private sector work. It is not only in the corporate and private sector, but also in relation to constitutional and Criminal Justice Law that they look to Britain. If military leaders, dictators or authoritarian rulers are accused of committing war crimes by the international court of justice then they immediately look towards London for lawyers and advisors to defend themselves They do not look to Paris, Belgium or Brussels. We have to believe in these facts and be proud of them. We should not just stop at being proud but must explore the chances, opportunities and the possibilities available in these Jurisdictions.

There is an organisation called Law Asia which is an international organisation covering most of the Asian legal jurisdictions. The head office of this organisation is based in Sydney, Australia.

They hold conferences, in the same manner as the International Bar Association, which take place in different legal jurisdictions.

This year, the Law Asia Conference is being held, from the 12th – 15th August 2016, in Colombo, Sri Lanka where Law Asia will be celebrating its golden jubilee. Their theme for the conference is “50 years of supporting the Rule of Law.” Law Asia has exposure to a collective membership of over a million lawyers

worldwide. The conference covers Intellectual property, Real Estate and Transactions, Criminal Justice, Judicial Process, Corporate Securities and Investments, Human Rights, Risk Management, IT and Date Protection, Legal Education, Public Law, Employment Law, Family Law, Business Human Rights and many other topics. Many academics, leading lawyers, Queen’s Counsels, Judicial Officers and President’s Counsels are submitting papers. This grand event is not confined to just legal discussions and papers. The opening ceremony will be addressed by the President of Sri Lanka, His Excellency Maithripala Sirisena .The key note address will be delivered by the Honourable Prime Minister of Sri Lanka, Mr Ranil Wickremesinghe. The Prime Minister is a lawyer by profession.

This conference provides networking and social opportunities through cocktail parties, cultural dinners, gala dinners and a dinner dance for delegates and friends. I am privileged to be attending this conference where I will proudly fly the flag for the Middlesex Law Society and for the title of Solicitor of England and Wales. http://www.lawasia.asn.au/home.html , http://www.lawasia.asn.au/sri_lanka_event.html We, as lawyers of England and Wales and, more especially, as members of the Middlesex Law Society, must immediately expand our horizons and explore the opportunities available in these Commonwealth and Asian jurisdictions. In three years’ time we should be able to ask Brexit? What Brexit? We must keep this hope and that of the legal profession alive.

ARIYA SRIHARAN President, Middlesex Law Society e-mail: sri@sriharanssolicitors.co.uk

The Bill of Middlesex 5

council members

Inaugural address of: 172nd Law Society president Robert Bourns 14 July 2016 On 14 July, Robert Bourns delivered his inaugural presidential speech at the president's inauguration event.

Introduction Thank you Catherine for your introduction and to all of you for being here this evening.

I begin by saying that it is a privilege to be the 172nd president of the Law Society of England and Wales.

An interesting time to pick up the baton!

Brexit and the international standing of the profession

for its impartiality, for its evidence-based decisions from our judges, for the integrity and independence of our profession, for the flexibility of the common law to support commerce, remain a constant.

Just last week, our Lord Chief Justice said: 'The business of the judiciary is not politics. It is the business of upholding the rule of law. The rule of law that provides the certainty so necessary for the prosperity of the state. It underpins our just society by ensuring fair dealing, respect for individuals, particularly important at this time, and peaceful resolution of disputes through access to justice and fair trial. It provides the stability and the framework through which the political changes ahead can be undertaken and resolved.'

I agree and will say no more of the part that I believe this profession plays and will play in providing that stability and framework.

The country and our profession are facing one of the most significant periods of change in our recent history. Uncoupling from the EU in the wake of the referendum, if that is what happens, will affect every part of this country, all home nations and others beyond.

Events in the political world have been moving fast. In the last 24 hours, Theresa May has become the new prime minister and a new Cabinet is Representing solicitors being formed which is due to meet next week.

Representing the profession will be a crucial role in the year ahead.

We are not yet clear whether or when Article 50 will be invoked but the Besides the Brexit vote, there are a number of important consultations on incoming prime minister has said that Brexit is a fact and we will make it the fundamentals of regulation, education, training and a success. it is a admission to the profession that are being promoted or But I am aware that: privilege to contemplated.

A significant number of solicitors, firms and their clients rely be the 172nd A key part of my role will be engaging - along with the chief heavily on access to the single market - their livelihoods executive and the team - with the main stakeholders of the president of depend on it in whole or in part, not to mention the impact on justice system in England, Wales and internationally on the the Law the economy. main issues from these consultations that are affecting the Society of Some 200 foreign law firms have offices in the UK and almost profession and the justice system.

6000 of our members work in foreign-owned firms or abroad.

England Last week, the interim report of the Competition and Markets Clients, as well as some practitioners, may feel concerned and Wales.

Authority (CMA) study was published. It indicated that no about the trading environment for their businesses or formal investigation of the market is needed, which we welcome. But the corporations, about investment, about what the future will hold for our CMA went on to say that the competitive market for legal services could working lives, about freedom of movement or about our rights. be improved with greater transparency of pricing and service quality.

Other competing jurisdictions have an eye to the main chance, exploiting The market for legal services is competitive and solicitors offer any perceived uncertainty or threat to independence. Some misrepresent exceptional service and value, and we will continue to engage with the the situation and have already started to press for changes in governing CMA on this issue. There is a danger in establishing the price for law and jurisdiction clauses in cross-border contracts. everything and the value for nothing. Legal services are not widgets.

These are going to be challenging times but, as I begin my presidency, I The Solicitors Regulation Authority continues to consult on a new want to stress that the fundamentals that have made English Law the handbook. We are currently seeking views from our members, gathering jurisdiction and governing law of choice remain unchanged - not affected insight and want to hear how these proposals may affect you. by the vote.

There is also the Ministry of Justice's likely consultation with the stated The Law Society will work tirelessly to promote this jurisdiction and objective of making regulators independent of representative bodies and support this profession through any period of uncertainty or transition, to the current consultation on Alternative Business Structures. We will deal make the most of all opportunities notwithstanding the challenges. with these consultations and respond to them, notwithstanding the clear So, a central and, in the current circumstances, essential part of my message that we can live with the status quo and do not need anything presidency will be to promote: that allows others to question the independence of this profession. the strength of the law of England and Wales for transactions and During my year I will campaign for: contracts our jurisdiction as the jurisdiction of choice around the world for a strong independent legal profession, including the defence of legal dispute resolution the reputation, expertise and standing of the solicitor professional privilege and our stewardship of it the principle of justice for qualification nationally and internationally. all and ensuring that human rights are not eroded.

English common law continues to be the most used jurisdiction in the world, over 2 billion people use it - 30 per cent of the world's population.

Pride in the Profession It is used in 86 of the world's legal jurisdictions and it is the legal system Over the next 12 months, I have several key focuses. I will shortly launch of increasingly important economies, such as India, Singapore, Australia our Pride in the Profession campaign aimed at promoting the vital role of and Hong Kong - all of which are now high on the government's agenda. solicitors of England and Wales.

Although the Brexit vote causes some degree of uncertainty, this is Throughout my presidential year, I will be seeking and telling your stories separate from and must not be allowed to undermine the unchanged - promoting our members' case studies and examples of best practice efficacy of English law, of our courts and tribunals and our profession, in areas, such as excellence and innovation in practice, use of artificial which substantially predated and is independent from membership of the intelligence, recruitment and people strategies that promote diversity, and other activities that demonstrate our professional values.

EU. It is important that decision makers, the judiciary and the public know The reputation of our jurisdiction: more about our contribution - not just to the UK's bottom line, but to our for its fairness,

6 The Bill of Middlesex

council members justice system, to the economy and to the community. Please send us your stories!

I invite you to get involved in our campaign and to send us your stories to enable us to demonstrate and celebrate the values shared by solicitors across the profession - and encourage others to join in. Please read my blog on the Law Society website for details of how you can get involved.

This includes constructively challenging the tone of comments about the profession - but it also means demonstrating the work of solicitors beyond providing legal advice - our role as strategists and entrepreneurs. Equality and diversity Our campaign will have three main angles: At the heart of my concerns in the coming year will be something that has been a passion throughout much of my working life. I want to see people Firstly, our contribution to the justice system. The solicitor's of all backgrounds, who have the desire and the ability to develop a profession has established and underwrites a substantial part of the career in the law, given the skills they need and will need to succeed. network of justice across England and Wales and, in the case of City Our profession should reflect the society and communities we represent firms, with global reach, well beyond. and of which we are a part. Background, ethnicity, sexual orientation and We continue to 'make it happen' for our clients, regardless whether they are individuals, corporates or government, furthering their businesses and gender are no bar to a career in the law.

Indeed there is power in the diversity of this Society and profession. We interests. We have been able to do this, only because we have and must promote the values and interests that we share, so that the liberal continue to demonstrate value: democracy that we enjoy thrives, is strengthened, maintained and Through our advice and work, thousands of disputes are resolved available to all. without reaching the courts.

Not a substitute for a properly funded legal aid system, but the profession During my presidential year, I will promote and support public legal education, our social mobility ambassadors, our Diversity and Inclusion supports many of the most vulnerable in our communities, offering free Charter, giving line of sight so that those with the skills and abilities are early legal advice and, in some cases, representation. encouraged to step up, join this profession and develop their careers in When cases go to court, we know what needs to be done. We have the the law. We will provide solicitors with the tools to overcome lack of practical expertise and the technical ability to deliver the best outcomes confidence and other barriers, including self-imposed or limits on for our clients. aspiration flowing from environmental factors.

We will engage with those seeking to reform the courts and procedures, If we are to remain a cohesive society, it is absolutely although we will and must always draw attention to the The business essential that the profession remains diverse. As someone impacts of Legal Aid, Sentencing and Punishment of of the said, we must send the lift back down after us. I am deeply Offenders Act 2012 (LASPO), issue fees and changes to judiciary is concerned, as we all must be, with the recent significant costs regimes. not politics. increase in reported hate crime and harassment in England As I say, we are engaged with the programme of and Wales in the run up to and following the referendum. The modernisation of the courts and we support it as long as the It is the Law Society condemns any and all hate crime, whether verbal principle of justice for all and the right to access legal advice business of or physical. If you are a victim or witness any crime, please are safeguarded. upholding the report it. Do not tolerate intolerance.

Solicitors are not a fetter on justice; on the contrary we rule of law.

I will be working with firms across the country - including in facilitate it. the City - to make sure that equality, diversity and social mobility and our As part of our campaign we will promote the work of solicitors who sit in efforts to overcome barriers are seen as priorities across the profession the judiciary and encourage and support younger generations of capitalising on the many examples of excellent practice to be found members who may be interested in following such a career path.

Secondly, our contribution to the economy. A central part of the Pride across England and Wales.

Part of this will be about increasing visibility of our expert sections and in the profession campaign will be to continue to promote the solicitors' divisions, including LGBT, Junior Lawyers, Women Lawyers, Ethnic profession as diverse and dynamic, making a real and consistent Minority Lawyers, In-house, Lawyers with Disabilities, and other economic contribution.

Research indicates that the total value of legal services to the economy is associated organisations.

I know many firms and many solicitors across England and Wales are ÂŁ25.7bn, net exports of legal services were worth close to ÂŁ4bn in 2014 committed to furthering these aims already and I want to celebrate and and that we employ in excess of 370,000 people. support their work.

Solicitors working in-house make a real contribution to the operation of large corporates, central and local government and the third sector. The Conclusion in-house community now accounts for 22 per cent of the profession and To conclude, I reiterate that it is a huge privilege to serve the solicitor is expected to increase to 35 per cent by 2020. profession as its 172nd president.

Over two thirds of general counsel are part of their company's boards These are undoubtedly interesting times. and more than half report directly to the CEO. In-house solicitors are an As the solicitor’s profession: increasing and important part of this Society. we must reassure while looking for opportunity The importance of small and medium-sized firms and the prosperity, we must uphold the rule of law while encouraging innovating growth and stability that they bring to local economies and the justice we must drive growth while promoting stability. system, should also be acknowledged and will be a key focus of my We can and should be in the vanguard of those seeking to ensure the work.

UK as a whole comes through this period with its confidence in the The former minister of trade and investment, Lord Green, suggested that: framework of justice enhanced. 'the UK's legal expertise is [...] an extremely valuable export in its own I will work tirelessly to support, promote and represent our profession to right, as well as underpinning our strong commercial offer across a range make the most of all opportunities, so that we are a proud, strong, of sectors.' effective and independent legal profession.

I agree. We will build on this perception.

What a year to be president!

Thirdly, our contribution to the community. We will also promote the I very much look forward to the year ahead. significant contribution of solicitors to the community, and specifically our Thank you. crucial role as enablers when people are facing crises in their lives.

Many solicitors give time and expertise, they sit on charities as trustees,

By Robert Bourns they bring their experience to bear in a whole range of important President, Law Society. situations and, of course, they do countless hours of pro bono work.

I want to celebrate their contribution around National Pro Bono Week, through the promotion of the pro bono tool kit for law firms and by showcasing their work. We will celebrate and support in equal measure. I recognise that this work is sustained and again bears on our commitment to social justice.

The Bill of Middlesex 7

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local news editor’s column

Editor’s Column Welcome to the latest issue of “The Bill of Middlesex.”

T

Summer is usually a time of relative inactivity for the legal profession as Parliament goes into recess, as Partners retire to the beach and as “The Law Society” Boards, committees and Council take a few weeks off so that their Members can recharge their batteries.

Yet this year is very different for the legal profession.

The Competition Marketing Authority is half way through its one-year mission to explore the legal profession and to consider any problems standing in the way of it being a competitive environment for the entry of new business structures, exploring whether it allows for price competition and asking if consumers are able to make informed decisions regarding whether they employ external regulated, or non-regulated businesses to deal with their legal problems.

On July 8th it issued its interim report demonstrating its thinking to date.

Thankfully it has ruled out a full market investigation. However, it is concerned about financial transparency for consumers in relation to cost. It wants consumers to be in a position to judge pricing from a visit to a firm’s website.This is particularly so in relation to services which it perceives as being commoditised such as conveyancing. It is also concerned that it is very difficult for consumers to compare quality when it comes to law firms and that many consumers rely on word of mouth via friends and family rather than independently being in a position to judge price and quality.

The report does not directly address regulation in any detail but does state that changes to regulation may be a way of promoting competition.

The report seems to promote the proliferation of non-regulated businesses and ABS at the expense of traditional law firms and Barristers chambers.

It therefore currently appears as though legal firms will be required, in the future, to print more detailed information regarding pricing in an effort to stimulate competition, to drive down prices and to help meet what is perceived as being an unmet legal need.

However, the job of the CMA is only half finished and there is still time for all bodies to influence its final findings which are due at the start of 2017.

The government has indicated that a consultation on the subject of separation of regulation will be forthcoming dependant on the initial findings of the CMA. Elsewhere in this issue Michael Garson considers the CMA report in more detail.

The most disturbing consultation of the summer is the SRA’s consultation on a new simplified handbook. For the first time the SRA intends to allow individual solicitors to conduct unregulated legal work within unregulated businesses. Whilst doing so they will be subject to an SRA Code for individual solicitors which is different from the proposed code for regulated businesses. There will therefore now be two Codes of conduct. Such a move would allow individual solicitors to work within unregulated providers without the safety nets of professional indemnity insurance and without supervision.

Clients using Solicitors in such unregulated firms would not have the benefit of the compensation fund as a last resort. There are also real concerns as to the availability of solicitor/client privilege in such an unregulated environment.

The effect of the proposed changes would be to create a two tier profession with traditional solicitors working within a regulated entity as now and those working within an unregulated environment without the benefit of compulsory insurance or supervision The thought of working in an unregulated environment may be music to the ears of armies of para legal who are finding it difficult to qualify or to find employment as solicitors within the regulated sector.

However, those solicitors would be vulnerable as, more importantly, would be their clients who would, in many cases, be unable to use the safety nets of insurance and the compensation fund.Moreover, the other likely result will be that consumers are likely to find it very difficult to distinguish between a traditional firm of solicitors and an unregulated firm which employs solicitors to undertake legal work. Many consumers will not understand the difference in protections offered by both .They will only realise when things go wrong.

The reputation of the solicitor’s profession will, as a result, be diminished.

SUNDEEP BHATIA

This is an intentional policy on the part of the Solicitors Regulation Authority.

It believes that less client protection is an acceptable price to pay in order to meet what it describes as “unmet legal need.”

The philosophy behind the theory of unmet need is that these reforms will increase competition, by allowing a variety of Alternative Business Structures to enter the market and drive down the cost of legal representation so that some of those, currently without representation, will be able to find that representation. This can therefore be seen as a grand experiment based around a theory. My own personal view is that such a policy is misguided and that the regulator of a profession should not seek to water down its professional values.

The proposed changes to the handbook are accompanied by a second consultation concerning reforms to the accounts rules. The reforms proposed are no less radical and far reaching. The SRA propose changing the definition of client money so that it does not include disbursements which the solicitor is responsible for paying such as experts fees and Counsel’s fees. Money paid by a client, on account of costs, will no longer be classed as client money. The SRA justifies this by stating that consumers can pay such sums using their credit cards so that they are covered by protections offered by credit card companies. However, this fails to take into account the fact that not all consumers are eligible for a credit card and there will therefore be many lowly paid or vulnerable consumers who will lose out on the client protections which our profession currently offers and which are one of its cornerstones.

Solicitors working in unregulated businesses are not permitted to hold client money. The SRA is also consulting on whether “whether or not client money (as redefined) can continue to be paid into the client account or whether there should be flexibility for clients to agree different arrangements.”

The SRA is also consulting on whether “mixed payments should continue to be paid into a client account first, as now, or whether we can now be more flexible in the new rules.”

The consultation also reopens the idea of allowing firms to use third party managed accounts as an alternative to firms handling client money.

The reforms proposed are far reaching and may have far reaching and, potentially, damaging consequences. If office monies were to include money on accounts of costs, money due to experts and counsel then this would flatter a firm’s financial situation and those monies would no longer be segregated in the event that a firm collapsed. Both the Law Society and the SRA are consulting on the accounts rules and code of conduct proposals over the summer.

The consultation window for these two consultations closes on 21st September 016. In a column such as this it is only possible to give an overview of the proposed reforms. All solicitors and firms are strongly urged to read the consultation papers and to put in responses. If these proposals are implemented, then the whole fabric of our profession and its core values are at risk. The handbook proposals are likely to result in many larger firms seeking to cut costs by farming out their unregulated work to unregulated entities employing solicitors.

This would increase the regulatory burden on smaller firms unable to act in that way. These are not consultations to ignore. The Law Society has published helpful guidance as well as case studies showing how the proposals would work in practice. Elsewhere in this issue our President looks at Brexit with an optimistic eye and considers the opportunities available in other jurisdictions.

I hope that you enjoy this issue!

SUNDEEP BHATIA Editor of The Bill of Middlesex Beaumonde Law Practice.

Law Society Council Member for Ethnic Minorities Chair of the Regulatory Affairs Board of the Law Society (from 1st September).

The Bill of Middlesex 9

council members

Council Member’s Report The CMA study is examining competition in the market for will writing and probate administration, employment and commercial services for small businesses. overnment is driving an agenda of deregulation across all sectors G of the economy. It believes that competition increases choice and innovation and reduces prices for consumers. It sees legal services as no exception and argues that unmet need can be satisfied only if access to providers of legal services is made easier.

A Legal Services Market Study was set up in January this year by the Competition and Markets Authority (CMA) to enquire into: • Perceptions of unmet demand of legal services • Concerns about service standards of both regulated and unregulated providers • Complexity of the regulatory framework • Concern that conduct rules might create barriers to entry into the regulated market • Lack of empowerment for buyers of legal services • Gaps in the redress framework The Interim Report published on 8 July 2016 indicates that the Legal Services Market Study will continue until the end of the year but a decision notice has been issued that it will not be followed by a full market investigation reference.

It acknowledges that regulation has an important role to play to ensure public protection, access to services and redress for mistakes. No view is expressed on the consolidation of the nine regulators of legal services though their complete independence is seen as a key principle that must be adopted to avoid the influence of the vested interest of service providers.

Whilst the CMA remains interested to explore the extent to which complex restrictions imposed by regulators may stifle competition and innovation it falls short of finding a case for removal of regulatory restrictions save for transparency of pricing. It favours the relaxation proposed by the SRA enabling solicitors to offer unreserved services in the open market outside of regulated firms. It is acknowledged that the definition and extent of legal reserved activities should be examined in due course and at this stage CMA see no harm from solicitors continuing to deliver both reserved and other legal activities using the title ‘solicitor’. This dovetails with the central reform advanced by the SRA in their consultation ‘Looking to the Future’ that would enable solicitors to pay for a practising certificate and practise as ‘solicitors’ within unregulated bodies as well as regulated ones.

The outcome of such change is by no means predictable as once implemented the market will be supplied by three types of trained lawyer - solicitors in regulated firms, solicitors in unregulated bodies and others (includes former solicitors not practising as solicitors) offering legal services in unregulated bodies. Where markets are well or over supplied such as , (it is submitted), is the case in respect of will writing or employment services then the change may lead to adjustments of position and possibly price as the cake is re-divided; the CMA recognise that price is the most easily used tool for the irregular buyer of services. The losers could be any of the three

10 The Bill of Middlesex

models ,(i.e.the fully regulated firm ,the non regulated body with solicitor involvement and the non-regulated body with no solicitor involvement. )This would be confusing for both the consumer of services and for the provider alike!

The Study finds that the majority of consumers do not know the status of the supplier of services (whether regulated or not) but,in the researched areas of will writing and probate services, employment law advice to consumers and small business, and commercial law services to small business, it finds that no particular detriment flows from the provision of legal services and advice by unregulated bodies. These are all areas of legal activity which are not reserved,under the Legal Services Act 2007 ,and are therefore not restricted to being offered only by authorised persons.

Further work is continuing into the differences between regulated and unregulated providers of will and probate services; to explore the role of intermediaries and legal expense insurance in relation to employment disputes; and to clarify the ways in which small businesses need and use legal services and to discover why they predominantly use solicitors.

Although there is a finding that consumers are not particularly aware of the existence of ‘regulation’ it is suggested there is recognition of the title ‘solicitor’. Where there is awareness of regulation there is little knowledge as to what it means or how it operates so it is proposed that better information should be made available. Once light is cast upon these areas then consumers will, it is suggested, be able to make up their minds whether they wish to have the benefits of regulation. The CMA found evidence that Information regarding redress was being given but was not necessary noticed by some complainants. Therefore changes may be proposed with the aim of better informing purchasers of legal services..

The CMA find a lack of transparency around price and service which makes it hard for consumers to compare providers and to identify value for money. Recommendations to address that will be made in order to improve transparency of pricing both before services are provided and once they have commenced. It is suggested that increased availability of data listing services could significantly improve competition and narrow the wide pricing differentials shown by research. If this is addressed then this, it is argued, would give consumers confidence and encourage some of those, who presently resolve problems without expert help, to obtain legal advice.

It is also intended to provide more information to consumers about the choice of legal service providers and the differences between them so that consumers are able to make good buying decisions.

The propositions being advanced are that consumers do not buy legal services when they could (one type of unmet need) or continue to buy services from expensive solicitors rather than cheaper services that are just as good from unregulated providers.

council members There is evidence to show that the domestic market in legal services is worth about £12 billion and that unregulated bodies have grown their market share to about 7%.

There are some attributes of regulated firms that are easy to list such as complaints and redress, annual PI and run off insurance, client account rules and audit , file retention, compensation fund confidentiality, and concepts which are difficult to explain such as intervention and legal professional privilege. Even if benefits are explained buyer behaviour may not be entirely rational –especially when under stress. The CMA do not take behavioural irrationality into account and believe that competition will solve the problems.

The CMA have commissioned IFF Research to conduct telephone interviews with consumers and also rely on research papers from the Legal Services Board and others and interviews with all the regulators. It proposes to carry out further work to build remedies for the initial findings that ‘legal services markets are not functioning as well as they might.’.

The analysis of unmet need is not satisfactory; for example a study of smaller businesses commissioned by the LSB in 2015 found that around 57% handled their legal problem entirely on their own or with family help. (Blackburn Kitching & Saradakis - The legal needs of small businesses.) For other consumers it is argued they do not have the confidence to buy. The report does not address the needs of those deprived of access to legal advice by withdrawal of legal aid or unwillingness to pay.

The growth of competition from unregulated firms is seen as good and a driver for price competition and the absence of price information available freely on websites is not –only 17% of firms were found to state fixed prices on the internet. There is a belief shared by the Legal Services Board that price comparison websites would give consumers confidence and increase the use of legal services. ‘Quick and Easy’ could be added as relevant ingredients to lure buyers. Readers will be familiar with the positive and negative aspects of comparison websites as they have gained market following for insurance products even though sites rarely offer a whole of market choice and the interests of intermediaries are not entirely transparent.

supported by investment and if it is to deliver anything useful by skill and expertise.

Without a state subsidy it is hard to see how these areas of need would be satisfied. It is shameful that the shortfall for the growing numbers who are in need is masked by posturing on regulation and transparency of pricing through the CMA whilst government avoids its responsibility to provide proper access to legal advice and help and, ultimately to justice from the courts.

The services provided by solicitors amidst all the changes of the last 15 years remain reliable and consistent. Irrespective of the changes made by the regulators solicitors hold to the professional principles set out in the Legal Services Act - to maintain independence and integrity, with proper standards of work and in the best interests of clients. There are not many unregulated bodies that would sign up to those values on a voluntary basis with owners willing to submit to the costly obligations that go with being regulated.

It may be worth noting as the CMA search for consumer detriment that an organisation that employs a solicitor will have no obligation to continue in business. If it closes and restarts the competition authorities would well see that as a sign of a healthy market with no barriers to entry or exit!

The government will continue to try, but will ultimately fail, to meet its goal of obtaining high quality services at low cost. And at that point price or standards or both will have to yield.

Michael Garson Law Society Council Member, Treasurer and member of the Professional Standards and Ethics Committee and Professional Indemnity Insurance Committee.

Features for many products and services are relatively easy to present online and this compares with the most easily commoditised of legal services such as online divorce, forms or will writing. While frequent users select on experience many infrequent buyers may for good reasons prefer to rely upon personal recommendation.

Measuring the quality of customer service in terms of speed and complaints record is possible but other qualitative measures are hard to evaluate in cash terms. It is that much harder for the provider of legal services to establish a value for services where it cannot easily be shown what mischief has been avoided by the exercise of care and skill. And without in any way asserting that the quality of services provided by solicitors is universally good, consumers especially vulnerable ones may not be the best placed to make a good assessment With the disappearance of legal aid and loss of high street representation in local communities it is inevitable that other channels to market will be established. Those who are capable and able to access services through the Internet can find service providers and may get accustomed to shopping for legal services through comparison sites of the type being established.

In markets which are elastic but finite such as probate and conveyancing, it is hard to understand what difference the proposals can make to the problem of ‘unmet need’. The shortage of advisers for housing and welfare law, debt counselling, and family disputes is unlikely to be filled by a wave of solicitors who set up unregulated bodies to service these markets. The service would need to be

The Bill of Middlesex 11

news

LONDON JULY 1, 2016: The Court of Appeal has issued a landmark judgment in a professional negligence case that will have wide-ranging ramifications across the lending industry.

The decision also sets a new precedent, in that it changes the legal principle of causation.

Banks, building societies, asset based lenders and surveyors will be affected by the eagerly-awaited decision that means lenders can recover all of their losses from a negligent valuer arising out of a refinance loan. The effect of the case goes well beyond both the lending and valuation industries as it refines the way in which the Court will apply the long established “but for” test to assess what loss flows from a breach.

Solicitors Rosling King (RK) acted for the Liquidators of bridging lender, Tiuta International Limited, against De Villiers Surveyors Limited in a case involving the valuation of a property development in Sunningdale, Berkshire.

Tiuta sought to recover from De Villiers the £890,500 loss it suffered arising out of a refinance loan, claiming the valuation report significantly and negligently overvalued the property.

In an earlier hearing in the Chancery Division, the Court ruled that Tiuta’s loss should be limited to the amount lost in ‘topping up’ the original loan (c£272,700).

However, the Court of Appeal has now overturned that decision Georgina Squire, head of Dispute Resolution at Rosling King, said: “This is a resounding win for lenders on an important point of law. Not only does it have wide ramifications for claims against professional advisers, but it also has a much wider impact as it changes the way in which parties have to assess their loss under the “but for” test. ” “Lenders will welcome this decision as it settles a contentious issue in relation to how much of their loss they can recover having refinanced. They can now be certain that they may recover their full loss in the event the valuation was negligent, not being restricted to the amount by which the refinance exceeds the original loan.”

Georgina Squire said: “The question was should a lender recover all its loss on a refinance loan from a negligent valuer, or is the lender limited to the ‘top up’ advanced after the existing loan is redeemed, because it would have suffered the loss on the existing loan in any event? The Court of Appeal has given much-needed and welcome clarity on the issue.”

De Villiers Surveyors were instructed by Tiuta to value the property in Sunningdale, which was a former nursing home undergoing substantial redevelopment into four three storey midterraced houses.

12 The Bill of Middlesex

In reliance upon De Villiers’ valuation report, Tiuta advanced funds to its borrower.

The borrower later approached Tiuta to request an increase in the loan facility. De Villiers was instructed to prepare a second valuation report, in reliance upon which Tiuta redeemed the existing loan and advanced further funds to the borrower by way of a refinance. It is the refinance loan that is the subject of the claim.

De Villiers claimed Tiuta could not have suffered a greater loss than the amount by which the indebtedness had increased thereafter, i.e. the loss is limited to the “top up” advance of c£272,700.

The question before the Court of Appeal was whether there was a pre-existing indebtedness created by the first loan, which prevented the lender pursuing a claim for the full loss suffered by entering into the second loan, on the basis that it has already arisen in the first loan and so could not be claimed on the second loan in accordance with a strict application of the “but for” test.

In its judgment, The Court of Appeal held: “There is nothing unjust in holding the respondent liable in accordance with its own valuation, prepared specifically for the purposes of the second transaction” and that the “second loan is entirely independent from the first loan…had there not been a negligent valuation, the appellant would not have entertained the second transaction and [its] loss is the total advance of the second loan, less the [borrower’s] covenant and the true value of the security.”

The Court of Appeal also stated: “it could be said to be inherently unfair that…. a negligent valuer could use an attack on the legitimate working practices and systems of the appellant as a means of escaping part of the consequences of his or her negligence.”

By Georgina Squire About Rosling King: RK LLP is a UK-based law firm specialising in serving the needs of financial institutions and private equity, real estate and construction clients. www.rkllp.com

interview

An Interview with District Judge Wicks On 28th July 2016 Marilyn Willows interviewed District Judge Wicks, one of the two resident District Judges at the Family Court at Uxbridge who has served as a District Judge for the last 16 years.

Firstly, What inspired you to enter into the Law? I first thought about becoming a Lawyer when I was doing my A-levels at school in Reading. After that I went to Exeter University to study Law but initially had my doubts as to whether to carry on with it and even looked into whether I could do an Archaeology degree instead! In fact this proved not possible and I carried on with my Law Degree. I still had my doubts about practicing Law even after graduating and took a few more months off before enrolling on the College of Law course at Guildford.

Whilst studying in Guildford I stayed in rented accommodation and then managed to move into some converted stables with two other students in the grounds of a house which was conveniently next to the college.

What was your first Legal Job like?

I returned to Reading in 1970 and was lucky to get a job as an articled clerk in a local solicitors firm in Reading. I worked in the Litigation Department which covered in all different types of litigation at that time, both civil and criminal litigation. Over the next few years I spent a lot of time in the local Magistrates courts and Crown courts in the Berks Bucks and Oxfordshire areas. Whilst I worked with this firm I was practising conveyancing, commercial work, wills and probate, accident claims and employment issues. I was also on the Police Station Duty Solicitor Rota which led to many sleepless nights! I also used to take part in open court divorce case advocacy and landlord tenant work. I feel that all this put me in a good position as far as the County Court was concerned.

What prompted you to become a District Judge?

My principal started to do work in the Social Security Tribunal and then in the County Court as a Deputy Registrar. He eventually secured a full-time post and when he left the firm I stepped into his shoes and became a Partner of the firm. After a while I also came to the view that County Court work would be a good option for me to try to become involved in. I was appointed as a Deputy District Judge in 1989 and sat in many local County courts in the area. I enjoyed the work and was appointed as a full time District Judge in October 2000, at the age of 54. I decided that this was the most logical career move for me and I have been settled in my role ever since.

Do you have any memorable cases?

Due to the nature of the job, one tends to move on from case to case, each one being just as important as the others and I spend an equal amount of sacrifice, energy and time on each case.

You will no doubt be aware of the cutbacks that have been made to legal aid over the last three years. Do you believe that the removal of Legal Aid in all but Domestic Violence matters has significantly changed the direction of how cases are conducted in court. The inevitable result has been that there now are far more litigants in person. How much of a burden has this been to the resources of the court and its time?

It was obvious that legal aid was going to become less and less available and less and less remunerative. The profession itself has become less lucrative because of the cutbacks and there has been a knock on effect on the Judiciary as well. There are of course more litigants in person and this does mean that cases tend to take longer to deal with. There are also cases where one feels that the lack of professional involvement may be detrimental to one or more of the parties. Nevertheless, both the profession and the judiciary are going to have to adapt and live with it.

PIC: District Judge Wicks and Marilyn Willows.

Since 2014 there have been a number of changes to the Family Court procedures in England and Wales, including the centralisation of the divorce court on 29th June 2015. Have you personally noticed any particular changes since this new regime was introduced?

During the last few years my impression has been that District Judges have been taking on a broader spectrum of work and both Civil and Family procedures have been considerably amended and updated to suit the times. We are also seeing more centralisation with enforcement work and divorce being hived off to specific centres and with digitalisation. No doubt much more change is going to come.

What would you advise me if I said that my eventual aim is to become a District Judge?

The law has always been developing to adapt to the times. As for anyone wishing to enter the Judiciary I would encourage them to do so.

The work is challenging and never ending. The career is still to be recommended but the scope and type of work inevitably is changing. I have really enjoyed my time as a District Judge.

You have been at this local court for many years and my principal has regaled us with many a story of the cases that have come before you. Will you miss sitting as a District Judge. What has retirement in store for you?

I will be sorry to have to leave my job. We have a good working environment and support. I view retirement with some trepidation but as in the legal profession, I will have to adapt to deal with it. I have not yet formalised any specific plans or activities as to what I am going to do in retirement. It will be strange not having to travel to and back from work for some two to three hours per day and no doubt my wife and cat will also have to get used to me too!

Marilyn Willows is a Trainee Solicitor at Desor and Company Solicitors, a law firm based in West London. She joined Desor and Company as a paralegal in June 2014 and started her Training contract in June 2016.Marilyn deals with all aspects of family law.She also deals with Personal Injury claims and assists other fee earners with Conveyancing matters.

The Bill of Middlesex 13

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drainage laws

New Drainage Guidance for Lawyers Published Drainage Law Barrister highlights important Duty of Care requirements for property and planning lawyers.

New guidance has been released for lawyers on drainage requirements for new build developments. Local Authorities are implementing stricter planning controls in favour of more sustainable drainage due, in part, to the challenges presented by climate change.

• Developers in a flood risk area must not make situation worse elsewhere. SuDS mitigate their effects and their inclusion in a scheme is viewed positively by planners.

The guidance has been prepared by the barrister and author of “Water and Drainage Law”, John Bates, of Old Square Chambers.

Mr. Bates’ guidance note examines how, with the prioritisation now given to Sustainable Drainage Systems (SuDS), lawyers have to do more to satisfy their duty of care to clients. Lawyers need to advise clients how SuDS might impact their development sites and give rise to long-term management responsibilities.

Information to support your duty of care

Mr. Bates advises lawyers that there is a presumption in favour of SuDS for development and that SuDS are the preferred approach to managing surface water runoff, adding: “Lawyers should commission a pre-application SuDS report to ascertain whether SuDS are appropriate or not, because this has important legal repercussions for your client.”

Other key points from the Guidance include:

• Surveyors and architects should note this but lawyers still have duty of care to advise their clients to meet operational compliance.

The first stage in identifying whether SuDS may play a role in a development application is through assessing the site suitability to include sustainable drainage.

Until now, this has been difficult to identify in a simple fashion.

GeoSmart has now launched SuDSmart – the new drainage due diligence report for commercial property lawyers.

Lawyers need to advise clients how SuDS might impact their development sites and give rise to long-term management responsibilities.

• Drainage requirements follow a “hierarchy” of planning approval – and in there is a presumption in favour of SuDS, where appropriate.

• SuDS can take up a significant area of a site and have project cost and long-term maintenance impacts that clients need to be alert to.

• Lawyers must make reasonable enquiries to determine whether SuDS are an appropriate drainage solution for their client’s site.

• The appropriateness of otherwise of SuDS may affect the legal advice given in respect of planning conditions, easements, adoption, maintenance as well as advice relating to insurance cover.

• Lawyers should consult the relevant Local Authority Policies on Sustainable Drainage and seek independent advice from a specialist data provider at pre- and full planning stages.

Meeting the new Guidance on site suitability, SuDSmart identifies other potential risks and constraints and removes potential roadblocks at the planning stage. The easy to read report reveals the following key information: • What the infiltration potential for surface drainage is on site.

• Whether there is a groundwater flood risk to the site.

• Whether there is a risk to the underlying aquifer.

• Whether there is the potential to discharge to a surface water body or a sewer.

The simple traffic light system that shows site suitability results, together with aerial photography, mapping and expert analysis of soil geology and features adjacent to the site.

SuDSmart provides a comprehensive and bespoke report which meets the requirements of planning authorities in answering site conditions questions for pre-planning or full planning submissions.

By John Bates.

For more information, please visit www.geosmartinfo.co.uk/guidancenote email info@geosmartinfo.co.uk or call 01743 276 150.

At a recent seminar for commercial property lawyers in London, environmental lawyers, SuDS experts and John Bates, the author of the Guidance discussed impacts on a lawyer’s duty of care to their clients on advising SuDS suitability.

Mr Bates, Barrister at Old Square Chambers explored the new guidance that he co-authored and case law that has paved the way for its release. He further advised: • Commercial lawyers need to understand site suitability to answer planning submission obligations.

The Bill of Middlesex 15

accountancy

Nice guys finish last?

Loyalty to small law firms is costing employees, as 1 in 5 miss out on a pay rise The Institute of Legal Finance and Management (ILFM) Annual Salary Survey for legal accountancy professionals has this week been published to reveal how employee loyalty within smaller law firms is not paying off.

The Institute of Legal Finance and Management (ILFM) Annual Salary Survey for legal accountancy professionals has this week been published to reveal how employee loyalty within smaller law firms is not paying off. The survey reports that 20 percent fewer employees of small law firms are receiving pay rises than employees in medium to large law firms.

The survey was undertaken in conjunction with Balance Recruitment, and exposes the clear disparity in pay conditions between large and small firms, with 78 percent of employees in medium to large law firms reporting receiving a pay rise, compared to just 59 percent of those in smaller law firms.

Tim Kidd, ILFM Chief Executive comments on the findings: “The aim of the salary survey is to provide an accurate salary range for the different roles that make up an accounts team within law firms across the country. We do this to support our members, and ensure they are demanding the right level of pay for their position.

“The most interesting finding this year is the difference in pay conditions between the large and small law firms. We think the disparity is perhaps partly reflective of the higher rate of staff turnover at larger firms, where employers more frequently find themselves having to attract experienced staff in a highly competitive jobs market.

“That said, the report reveals that the small firms have much better staff retention levels (89 percent in small firms and 81 percent in large firms), so maybe stability is more important than a higher salary today.”

The report also revealed that salary figures have shown a slight decrease for certain positions in comparison with last year, however salaries largely continue to be on the rise on a like-for-like basis, as evidenced by the data around pay increases.

The proportion of overall respondents who received a financial bonus also remained similar to last year, with a marginally drop from 46 percent down to 45 percent.

Compared with last year there was a slight increase in actual staff turnover year on year, with 86 percent of staff remaining with the same employer during the previous 12 months, down from 88 percent in 2015. London again saw the highest level of movement with just 79 percent staying with the same employer, followed by Wales (86%), Central & Northern Regions (90%) and the South (91%).

Commenting on the survey, Director of Balance Recruitment, Richard Hooper said: “Legal finance professionals are such a vital component of every law firm – without them, properties couldn’t be bought and sold, and compensation wouldn’t be paid, just to name a few important financial transactions.

“Each year we support ILFM in creating the Salary Survey Report as a way of recognising employees in the legal finance sector, and ensuring they are able to measure if they are being remunerated appropriately for the work that they do.”

Middlesex Law Society

A P P L I C AT I O N

for

(est. 1959)

MEMBERSHIP

!

Surname _______________________________________________________________________________________________________________ Mr / Mrs / Miss / Ms Forenames _______________________________________________________________________________________________________________________________ Name of Firm or Organisation ______________________________________________________________________________________________________________ Postal Address or DX no: __________________________________________________________________________________________________________________ Telephone ________________________________________________________________________________________________________________________________ Email ____________________________________________________________________________________________________________________________________ Status & Area of Work _______________________________________________ Date of Admission _____________________________________________________ Would you be interested in joining the Committee? Yes/No I wish to apply for FULL/FIRM/ACADEMIC/ASSOCIATE/STUDENT (YMG) membership of the Society (see below for details) I enclose herewith my cheque for £ _________ for the current year, made payable to "Middlesex Law Society" Signature ____________________________________________________________ Date _______________________________________________________________ Subscription Rates: Full Individual Membership: £50.00 per annum (more than 3 years admission) £30.00 per annum (less than 3 years admission) Firm Membership: Partners/Solicitors 2-5 £125 per annum 6-10 £250 per annum more than 10 £500 per annum Academic Law Departments: £200 per annum Associate Membership: £15.00 per annum (Trainee Solicitors, ILEX members, Paralegals) Students: £5 per annum (Young Members Group) Please return completed form and remittance to: The Membership Secretary, Middlesex Law Society, Susan Scott-Hunt, Middlesex University, The Burroughs, Hendon NW4 4BT

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

16 The Bill of Middlesex

!

council members

Law Society Council Meeting Law Society Council meeting summary: 13 - 14 July 2016 Council's July meeting saw a busy programme of reports and papers.

It lasted one-and-a-half days, and, in line with tradition, was followed by the Annual General Meeting of the Law Society, at which Robert Bourns took office as President, Joe Egan as Vice President, and Christina Blacklaws as Deputy Vice President. Jonathan Smithers stood down as President, and gave a comprehensive report on his many activities, particularly in relation to the rule of law, access to justice, technology and the law, and business and human rights.

One major decision taken by Council was to set the level of the Net Funding Requirement (NFR) - effectively, the amount to be recovered from the profession which funds the SRA and the Law Society, as well as the Legal Ombudsman and the Legal Services Board. Council was pleased to be able to agree a Practising Certificate fee for individuals of ÂŁ290, ÂŁ30 lower than in 2015-16. Overall levels of fees paid by law firms have also reduced.

Another topic discussed at Council was the ongoing review of the governance of the Law Society, to which we have welcomed contributions from those who have responded to our dedicated email address, and on which further development work will be happening over the summer.

Promoting the profession market and regulatory change There has been a lot going on in the wider environment, including the succession of Theresa May MP as Prime Minister, and Liz Truss MP as Lord Chancellor (the first woman to hold this office). Brexit will obviously be a major issue for the Law Society and the profession as a whole over the coming months. Council heard of plans to support members during this time of unprecedented change to ensure that England and Wales remains a centre of excellence and jurisdiction of choice. The Law Society has offered expertise to government through our expert committees and our access to networks across the EU and globally. A staff task force, alongside a task and finish group of elected and appointed members and other experts, will work on these issues.

have Professional Indemnity Insurance or be able to hold client monies. This risks creating in effect a 'two-tier' profession which has potentially serious implications, and the Law Society is engaging with members across the country to seek views to inform our response to the consultation.

Representing and supporting the profession The Chief Executive updated Council on the various ways in which we are engaging with and seeking to influence key decision makers on the Brexit agenda, including building on many contacts made as a result of the Law Society's EU report and economic analysis.

Council was reminded of the ongoing work to ensure that threats to legal professional privilege are robustly countered, particularly in the Investigatory Powers Bill. It was updated on the work the Law Society is doing, together with others, in response to the proposed reforms to the treatment of clinical negligence and personal injury claims; this has included targeted contacts with MPs and peers. Council also heard about the Society's influence in raising concerns about the proposed privatisation of the Land Registry.

The Chief Executive reported on a wide range of activity and events. These included the in-house division conference and a well-attended GC350 event, several roundtables and consultation meetings on proposed pro bono initiatives, and a recent conference on technology in law: 'Robots and Lawyers Partnership of the Future'. The recent re-launch of the updated Clinical Negligence Accreditation was also noted.

Equality, Diversity and Inclusion The Chair of the Equality, Diversity and Inclusion Committee presented the committee's annual report to Council. Among other things, this drew attention to the Diversity and Inclusion Charter to which 462 law firms are now signed up; a range of events engaging with members including speed networking and tailored forums for City firms; and the Diversity Access Scheme which gives financial support to talented LPC students who would otherwise be unable to continue their studies.

The Chief Executive reported that she gave evidence to the Justice Select Committee on regulation of the legal services sector, alongside Paul Philip and representatives of the Bar Council and Bar Standards Board. The Law Society welcomed the conclusion of the Competition and Markets Authority study on the supply of legal services that a full market investigation was not required, though recommendations on a number of matters - including regulation, transparency of pricing, and service quality - would have an impact on the profession. It was noted that there was still no date fixed for the issue of the consultation on separating legal regulators from their professional bodies.

The Chief Executive also commented on the SRA's consultation on a new handbook and accounts rules. She noted that the proposals raise significant issues about the protection of buyers of legal services: solicitors employed by unregulated entities who provide advice to the public may not be able to provide advice that is legally privileged, will not be subject to the same conflict rules and will not be required to

The Bill of Middlesex 17

asbestosis

LANDMARK ASBESTOSIS RULING IS GOOD NEWS FOR SUFFERERS Court of Appeal rules entitlement to proportional compensation from as low as 2.3% In a landmark asbestosis case, The Court of Appeal has ruled that asbestosis sufferers could be entitled to proportional compensation from as low as 2.3% from negligent employers, based upon the number of years worked. The historic ruling confirms that proportional compensation is applicable even if the employer’s overall contribution to the condition was minimal and the entitlement was as low as 2.3%.

The ruling relates to retired electrician, Mr Albert Carder, who was exposed to asbestos whilst working at Exeter University.

Although most of his asbestos exposure occurred earlier in his career, Mr Carder’s lawyers, Moore Blatch, calculated that his employment at the university contributed 2.3% toward his asbestosis.

The Court of Appeal today upheld the calculation and judgement made by The High Court in July 2015 that Mr Carder was entitled to compensation. But at the time Exeter University’s insurers appealed, arguing the proportion of the exposure was minimal and had made "no discernible difference to his condition".

Moore Blatch asbestos disease lawyer John Hedley, representing Mr Carder comments: “This decision is very important and will influence other asbestos cases. Whilst there is a long established principle around minimal contributions to asbestos exposure by employers, this case helps define what minimal actually means. We can confidently say this contribution can be as low as 2.3% or even less. Whilst the compensation is not substantial, it will help Mr Carder and the ruling will help many other people who are in a similar position.”

Established since 1964, we have achieved 50 years of providing accountancy excellence to businesses in and around London and further afield in the United Kingdom.

Our strength comes from our determination, our commitment to our clients and ability to face challenges of the economic climate without compromising the quality of our services, for which we are justifiably very proud.

Mr Carder said: “It’s a huge relief for this case to have finally settled and to also know that I can return to court, should my condition deteriorate, which is of great comfort to me and my family. When I started my career asbestos was thought to be such a wonderful thing; unfortunately we were not made aware of the dangers.”

Mr Carder’s overall damages from his total exposure to asbestos were assessed at approximately £67,500, with the university’s contribution confirmed to be £1,713.

Albert Carder from Exeter, now 86, sued the university after he was exposed to Asbestos while working in boiler rooms and other areas between 1980 and 1994.

Mr Carder was diagnosed with asbestosis and developed early symptoms of his lung disease in 1998. His condition progressed quickly, leaving him barely able to walk 100 yards, without feeling breathless by 2013.

Most of the electrician’s exposure had occurred earlier in other employment - during the 1950s when he was an apprentice electrician.

Mr Carder has been unable to pursue his other employers as they were uninsured and he is not eligible to make a claim under the Diffuse Mesothelioma Payment Scheme because this does not cover asbestosis. The scheme was introduced to help people where an insurer or employer could not be traced.

As a result of his exposure, Mr Carder suffers from chronic respiratory problems and uses oxygen to assist his breathing. He says that prior to his illness he was an incredibly agile person and enjoyed dancing with his wife at least four times a week.

Previously he weighed 15 stone, but is now a mere six stone and very much housebound.

The High Court ruling found that Mr Carder did suffer damage and injury that was actionable, agreeing that a case had been proven against the university, despite them only making a small contribution. On appeal, the Court of Appeal has upheld that decision.

For further information, please contact: Vaughan Andrewartha, Votive – 07970 056920 / 020 7248 6058 Vaughan@votive.co.uk About Moore Blatch

Our firm is structured into departments for Taxation, Audit, Accountancy, Book-keeping and Payroll, IT Systems and Company Secretarial Service.

Our specialisation includes Reports on Solicitors Accounts Rules.

Our office on Ritz Parade, London W5 3RA, next to “Premier Inn London” is situated adjacent to the Hanger Lane and Park Royal Underground Tube Stations and is well placed for London and its surrounding environs.

Call: Arvind Joshi FCA, CTA, DChA Tel: 020 8932 1932 Fax: 020 8932 0122 arvind@levyandpartners.com www.levyandpartners.com

18 The Bill of Middlesex

Moore Blatch is one of the largest law firms in the South of England with major strengths in immigration, clinical negligence, personal injury, mergers & acquisitions, rural services, taxes and trusts, corporate and commercial, property, dispute resolution and private client. We also have specialist teams serving sectors such as the lending industry, land development and transport, with a strong reputation in health and safety law.

Moore Blatch has offices in Southampton, Richmond, Lymington and the City of London. www.mooreblatch.com www.oyezgateway.co.uk Tel: 0845 017 5517

legal costs

The costs revolution: I have witnessed many changes in costs over my 30 plus years in practice, but I can see that the changes which we are currently working with are having a huge impact on how solicitors are having to manage their cases in so far as costs are concerned.

I think two of the biggest issues of recent times are budgeting and the developments of J-codes which are proposed for recording solicitors’ time.

If counsel has already been engaged do communicate with him or her on planning the road map as counsel will have much to contribute.

In recent years there have been a number of developments in the Rules and Practice Directions regarding case management and budgeting plus a plethora of reported cases on issues surrounding the same, particularly as regards budgeting, which will no doubt continue into the future.

J-codes may appear as something planned for the distant future but it is already been used in a number of firms and a new form bill of costs is available and being piloted in the Senior Court Costs Office.

J-codes originated from the Lord Justice Jackson Review of Civil Budgeting has however been in practice for some time now so Litigation Costs which was finalised in December 2009. Lord most firms have developed their own best practice. So far as the Jackson observed in his final report “Most people record the time judiciary is concerned there have been some surprises on how which they spend, e.g. eight hours on documents, but not what matters have developed, firstly the very small number of they were doing in that time. Solicitors should capture the applications issued to vary a budget and secondly relevant information on their time recording systems, I think two of the as work proceeds. There should be codes for that budgeting has not resulted in any notable reduction in the number of budgeted cases biggest issues of different tasks.” proceeding to a detailed assessment. recent times are As a consequence of his observation Lord Jackson budgeting and the recommended that “A new format of bills of costs From those cases where I have been involved in compiling the budget there has been very little should be devised, which will be more informative developments deviance from the budgeted phases at the end of of J-codes which and capable of yielding information at different levels the matter but this has only been achieved by are proposed for of generality.” carefully planning the budget at the outset From talking to clients a common concern for them is recording (including with particular focus on the assumptions) adapting to the phased approach for each solicitors’ time. and just as importantly, monitoring of the budget as procedural step, identifying different work tasks and the case progresses. how to implement the implementation of J-codes into their When considering the assumptions I have found that it is as well practice. to include both the assumptions of what you have included, and Other than the larger firms of solicitors or those exclusively just as importantly, what has not been included. Assumptions dealing with litigation, far too many practices have neither the help to focus the mind on the road map a matter is expected to resources and/or technology to record their time to fit the phases take, highlight to the fee earner if the planned route changes at and the expansive J-codes for numerous work types. any point in the proceedings, and if the case proceeds to a detailed assessment, give you some ammunition you need to try Whether your firm has the computer software or not, the easiest and argue why the budget has not been followed. practical tip is to get into the practice of noting on our attendance notes which phase your time relates to and if at all possible make CPR 3.21 does of course enable you to apply to the court for a note of the J-code. approval of a revised budget but this must be done at the earliest opportunity and certainly before the unbudgeted costs have been The dream for some senior judiciary is that firms will have incurred. Communication with your opponent is key and given computers that allow fee earners to record time with the individual that the new issues are likely also to impact on their budget, their J-codes and at the press of a button produce either a budget support should be anticipated but not certain and should certainly and/or a bill of costs for assessment. Personally I think for most not delay your own application. firms such a dream is a long way off in the future but I do believe that the technology will soon be available to at least convert a Communication with the opponent is essential to understanding budget into a bill of costs which is all the more reason to ensure how the road map will pan out and to ensure that the the budget you prepare is perfect every time. expectations of the opponent are planned into your budget. As is often the case, the courts can at times be unpredictable on how Paul T. Carter they think a case should proceed so the best advice on Costs Lawyer maintaining control is to agree as much of the budget as possible Temple Costs Lawyers and avoid the risk of the judge intervening in your plans. t: 020 8641 0729 e: info@templecostslawyers.com Communication with your own counsel, experts and others is of course critical in order to identify fees incurred and anticipated.

The Bill of Middlesex 19

technology

Voice-based technology and its place within small law firms Could you benefit from technology that is helping hundreds of law firms reach high levels of customer delivery?

Are you tired of wasting valuable time using manual processes or spending money on fixing slow and unresponsive systems?

You are not alone. Many small to medium sized law firms are losing dozens of hours a week working with outdated systems.

While people trust these methods, most do recognise their inefficiencies and know that implementing a more modern solution is necessary in order to stay competitive.

One option which works across firms of all sizes and is a quick and risk-free way to start seeing real benefits to efficiency and ultimately the bottom line is the introduction of voice-based technology.

The average person can talk three times faster than they type so utilising this for everyday tasks makes a lot of sense.

Whether it’s creating a document, allocating a task, or billing time, your voice can be used with the latest technology to help speed up and improve your current processes. This enables you and your firm to focus more time on value added tasks.

Currently, many small to medium sized law firms are looking at ways to get the most out of their workforce, even when they’re not in the office. The emergence of smartphone and tablet apps means that lawyers can now utilise their time away from the office by sending dictated work or voice-based instructions back to their support teams from wherever they are, whether that’s to and from court, meetings or even from home.

At present, many lawyers and support staff still spend countless hours manually typing long, text heavy documents such as attendance notes and letters. This can quickly become a time consuming and costly activity. The advances in

technology such as Speech Recognition, which now routinely returns accuracy of 95%+, can be used to make your employees more productive. This will ultimately help you reach higher client service delivery in less time.

Over 10,000 people use BigHand Professional, an easy-to-use voice productivity tool that can be installed on your desktop, smartphone or tablet allowing for dictation or task allocation anywhere, anytime. As a simple plug and play solution there is no need for any expensive in-house infrastructure, all on-going maintenance is taken care of and we’ll even keep you up-todate on the latest version free of charge.

With 21 years’ experience and 24/5 UK-based technical support BigHand are here to help, meaning you are free to get on with the task in hand.

If any of this sounds familiar and you would like more information about BigHand Professional, please get in touch with us at enquiry@bighand.com or www.bighand.com to see how we can help your firm.

“The average person can talk three times faster than they type so utilising this for everyday tasks makes a lot of sense.�

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20 The Bill of Middlesex

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management

Partners behaving badly – why tolerating bad behaviour can spell disaster One of the perennial problems in law firms is not the difficulty of identifying bad behaviour (it is usually there for all to see), but how to best approach the problem with a view to finding a solution.

‘Bad behaviour’ can come in many shapes and sizes. These are just a few examples of bad behaviour I have recently come across - There is the partner who says “you can’t manage me because I am a big biller!”

- Then there is the partner who says “That’s a great idea – for the rest of you!”

- Or the partner who says “If it doesn’t suit me, then I am not going to agree to it” - And then there are partners who, pursuing their own agendas, deliberately destroy relationships with other partners or staff and cause tension and strife within a firm.

- The partner who is bullying staff (also a serious risk issue).

Behaviours such as those above often reflect a lack of ‘partner accountability’ whereby some partners put their own selfish interests ahead of the interests of the firm. This is seen most often in firms where there are partners who have still not agreed to be managed. Whenever problems of this nature exist, the cascading and destructive effects on a firm and those in the firm, can spell disaster.

Not only is a firm likely to suffer financially, but there is also likely to be a cost to a firm in terms of loss of morale, resulting in good partners and staff leaving and involving a great deal of wasted management time and effort.

Bad behaviour and attitudes are usually more insidious and difficult to deal with than underperformance by partners, and where partners have worked together for many years it can be difficult for those managing a firm to resolve such issues. This can, and often does, cause instability, as well as stress to those who are trying to manage the firm. Knowing how to deal with such issues effectively can be difficult.

However, to do nothing should not be an option.

Managing partners can often feel frustrated when faced with these problems because they may be unable to resolve matters for a number of reasons: - Personal relationships may get in the way; - Many partners when faced with losing the turnover of a ‘big biller’ will not agree to take action. (However the trick is often to focus on the partner’s ‘profitability’ which will often tell a very different story from that indicated by personal billings,); - The inability to provide evidence to others that the problem exists may mean that some partners are not persuaded of the need for action; - Management’s agenda may be suspect in the eyes of some.

- Other partners may not be prepared to see colleagues challenged by management on the basis that ‘we may be next’; - The inability to see beyond the immediate problem so as to arrive at a solution in the interests of all concerned; - Insecurity on the part of a managing partner may prevent taking action against those who are deliberately ‘bucking the system’.

There is no silver bullet which can solve every problem involving partner behaviour.

Each situation is likely to require its own techniques to be applied to arrive at a solution, and it is never going to be easy. It can however be particularly dangerous for a managing partner if other partners, who want action taken, perceive that he or she does not have an answer to a problem. If a behavioural problem appears insoluble to those managing a firm then specialist help from outside, such as from a psychologist, may be needed and, for the sake of the firm, there should be no reluctance on the part of management to enlist such help.

Sometimes it is best not to attempt to deal head on with the individual or the problem. Instead, you set out to demonstrate to all concerned that a serious

problem exists and where that problem lies. A technique adopting this approach which I have found to be particularly effective for resolving problems of partner behaviour involves obtaining on a confidential basis, 360 – degree feedback from all partners (and also from those who report to them) to give an all – round or 360 – degree perspective of behaviour and performance.

The exercise will involve all partners (including the problem partner) providing feedback on all other partners and if approached in this way, those managing a firm are less likely to be accused of unfairly picking on and discriminating against an individual. Feedback provided by partners and others is likely to clearly identify behavioural problems and the steps which should be taken to rectify such issues, and is likely to be better received by a partner whose behaviour has fallen below an acceptable standard.

Sometimes it is better that the 360 – degree exercise, and in particular the feedback given to an individual, is facilitated by an outside third party who can be seen to be moreobjective and fair. By having an independent external facilitator to administer the 360 – degree feedback process, respondents can also be assured of anonymity.

A useful by – product of the exercise is likely to be that not only are other partners assured ‘something is being done to sort out the problem’, but also an improvement in behaviour and performance by those other partners can be achieved, particularly if it can involve a positive and motivational debrief meeting with each of them. Even where 360 – degree feedback may have highlighted significant points for improvement, or to change behaviour, partners should leave the meeting having found the process constructive and feeling motivated.

Providing feedback in the manner I suggest above to a ‘badly behaving partner’ will enable the problem to be discussed openly, and from that discussion a solution may be achieved. Partners are sometimes quite unaware of how their behaviour impacts on others and can be shocked when told of this.

Some partners on the other hand may have no intention of changing how they behave and a firm will then need to decide how to deal with them. The sense of frustration that can be felt in this type of situation is illustrated by what a partner in one firm said to me; “We have tolerated this disruptive behaviour for too long just because he has a large practice. But there is going to come a day when we say to him ‘Enough is enough – we are not prepared to accept this any longer and so take your practice elsewhere’” And they eventually did and the firm became more cohesive and successful as a result.

However, any firm which is facing issues of this kind should also ensure that it first has its governance arrangements (partnership agreement / LLP members’ agreement) in shape to enable it to take whatever effective action is necessary, and should always take the best external advice possible.

Bad behaviour can destroy a firm and partners should not flinch from facing up to the issuesand dealing with them because they will not go away and may only get worse. n © PETER SCOTT CONSULTING 2016

The Bill of Middlesex 21

articles Eighth & Ninth chapters in the series of extracts from the...

The Rise and Fall of Legal Aid

by Alured Darlington

“I truly hope this book is published - there was a time when everybody was entitled to be represented and put forward their defence, innocent until proved guilty. Without legal aid to give clients the representation everyone deserves, what will become of our society? I honestly dread to think.

This book will be a reminder of the ‘good old days’ and an insight to young ones into the legal aid system as it was and how it should remain” Foreward by Jean Brathwaite, Legal Secretary

Chapter Eight

The CPS By 1989 the firm I had founded had grown to seven partners and some 25 staff but I no longer felt part of it. I no longer undertook domestic violence work which I believe should only be undertaken for a few years and I was tired of it as it is very demanding emergency work. Accordingly l was no longer one of the firm’s ‘rainmakers’. I had become a passenger. The only solution was to leave and I found the newly created Crown Prosecution Service an attractive prospect with its concept of being ‘fair to everyone’. I joined the CPS as a junior prosecutor and it was the best career decision I ever made. By the time I left I had a new skill. I was a criminal lawyer.

The move to the CPS was none the less a struggle. At the age of 55 I had moved from the position of senior partner to a junior employee in a large organisation. Senior prosecutors I had met at

court on equal terms were now my superiors. There was a hierarchy in the CPS but as a prosecutor I learned a lot and the staff were congenial and helpful.

In 1995 I reached 60 years of age and as a civil servant was required to take compulsory redundancy but I had formed views as how the CPS could be lifted from its state as a pariah organisation and expressed these in an article in the New Law Journal which is referred to in Chapter twenty one.

I still believe that the widespread practice of Crown Court in house advocacy is the key to a rehabilitated and virile CPS for the reasons set out in the article.

Chapter Nine

R v Charmaine D. ‘I telephoned Jamaica and heard the chickens in the background. Only then could I really believe that she was home’ My legal career may well have ended with my retirement from the CPS but chance intervened with a call from Tom Cryan, senior partner of a local firm of solicitors. ‘Would I be interested in working for him? I gladly accepted and during my employment represented my first ‘drug mule’.

Charmaine D was charged with knowingly importing cocaine to the UK. She did not dispute that she had brought in the cocaine but denied knowledge that she knew it was cocaine. She said that she had been told that it was medicine.

Moreover she had seen a film to that effect.

Steve Green, the firm’s legal executive, was not enamoured by this defence but when I left T. Cryan and Co he sent me a poem which I still cherish and part of which I set out below.

Every stapler disappeared Within weeks of his arrival To save the stationery that was left Became a battle for survival

It soon became apparent Here was an advocate with style Despite his irritating habit Of leaving his lunch inside his file No one could read a word he wrote His dictation often rambled His mobile phone was a no go zone And the office alarm, he scrambled (But) We will never forget his great campaign To secure an acquittal for poor Charmaine Who, prior to boarding a London plane Had consumed a quantity of cocaine And while her defence appeared inane His enthusiasm never waned And with the expert evidence that he obtained Six months later, she went home again But the expert evidence I obtained was not rocket science. I simply decided that she should be tested on her IQ which it appeared had been hidden by her thick Jamaican patois accent. In fact it revealed an IQ of 49 which in those days was described as mental handicap. She did not even know that there was a place called England. She simply referred to it as “Foreign”.

Moreover enquiries showed that there had indeed been a film such as she described.

...other pages will be published in forthcoming the Bill of Middlesex or if you can’t wait, go online: http://issuu.com/benham/docs/the-rise-and-fall-of-legal-aid 22 The Bill of Middlesex

articles

‘A thing that is accepted as true without proof’ Sir Bernard Hogan-Howe, Commissioner for the Metropolitan police, has announced that the Met. may now move away from their existing policy with regard to sex crimes.

Up to this point they have assumed that anyone complaining of a sex crime is telling the truth. To assume makes an ‘ass of u and me’ as they say and with good reason. If you accept that people can lie then why on earth would we assume that sexual allegations are a special case where people never lie?

It reminds me of a police station investigation which I became involved in a few years back. A 25 year-old man was arrested for rape and I attended to advise him. His ex-girlfriend (who was just 18) had alleged that he had raped her on New Year’s Eve (it was now April.) He was in total shock and cried throughout the interview with me, explaining that they had been in a relationship and he couldn’t believe what she was saying.

allegations that we frequently see in the press. With these cases there is usually no ‘independent’ evidence such as forensics, CCTV or mobile phone data and convictions must be founded upon the testimony of witnesses alone.

I recently dealt with a case in the Crown Court where

To assume everything had taken place in the 1970s.. Piecing together what had happened, and when, was makes an exceptionally difficult and that was just for the police ‘ass of u and the lawyers, let alone the defendant. With many and me’ sex crimes defendants are left trying to prove a as they say negative, trying to prove that something did not and with happen. It can be almost impossible. good reason. For that reason the very greatest care must be taken

He told me in painstaking detail about every occasion that they had met up and what had happened. He then repeated all of this in interview with the police, explaining that sex had taken place but it was entirely consensual. He was bailed whilst they carried out further investigations.

and there is no place for assumption.

By Chloe Jay,

He called me a week or so after his arrest and said that he had managed to find a handwritten love letter from his ex dated 1st January thanking him for a ‘gorgeous night’. It seemed that we now had something to finally decide the matter; if the letter was from her, which could be verified by handwriting analysis, then it must surely be incompatible with her allegation, alternatively my client had deviously tried to falsify evidence and therefore was likely to be caught out. Having met my client I was entirely confident that the letter would prove to be genuine. We met with the police and gave it to them.

It was approximately 10 months later that the matter was finally drawn to an end. Despite constant badgering from me the police did not seem to think that the letter was conclusive. The complainant had accepted that she wrote the letter and it related to the same night but apparently still maintained she had been raped. The police had given her a considerable amount of time to explain the letter with counselling but finally after 10 months they decided not to take any further action.

It felt to me as if the concept that the allegation had been false was simply the last explanation they were willing to consider. In the meantime the police had notified my client’s employer and he had been suspended from work for almost a year.

Frustratingly the police confirmed they would not be taking any action against the complainant and that was the end of the matter. After 17 hours in custody, 10 months waiting whilst suspended from work… you can imagine how he felt.

In that case the complaint was made 4 months after sex took place and so there was no forensic evidence available to help clarify the truth. In this way the case was similar to the historic

The Bill of Middlesex 23

news

Duncan Lewis Public Law Director Adam Tear shortlisted for Solicitor Advocate of the Year and Human Rights Lawyer of the Year 2016 Legal 500 “Top Tier” law firm Duncan Lewis Solicitors are pleased to announce that Public Law Director Adam Tear has been shortlisted for Solicitor Advocate of the Year and Human Rights Lawyer of the Year 2016.

After winning Solicitor Advocate of the Year in 2014, this is Adam’s fourth consecutive shortlisting since 2013.

In a statement, Adam said: “I’m pleased to be nominated alongside Duncan Lewis, and all its staff for these awards. The firm is wholly committed to furtherance of Human Rights generally, as well as encouraging its staff at the earliest stages to get to grips with advocacy.”

Adam Tear

The Law Society looks for exceptional solicitors who can demonstrate a significant contribution in their advocacy and Human Rights work, a positive impact on the image of the profession, and strong practical skills.

Results will be announced at the Law Society Excellence Awards Ceremony on the 20th October 2016.

These categories celebrate excellence and outstanding achievement in advocacy and Human Rights that an individual solicitor makes to their practice, client work and the wider community.

Duncan Lewis Solicitors working with Safe Passage to help refugee children in Calais Duncan Lewis Solicitors have just come back from the Jungle in Calais where they are helping to reunite stranded refugee children with family members in the UK. Zofia Duszynska

In partnership with Safe Passage and with support from the Red Cross, Zofia Duszynska and Sondos Arafa join a team of British lawyers assisting children to achieve safety as soon as possible.

Zofia specialises in asylum work and has particular expertise in cases involving gender-based persecution, asylum-seeking children, human trafficking and exclusion from the Refugee Convention. Sondos Arafa, qualified under the Law Society’s Immigration & Asylum Accreditation Scheme as a Level 2 Senior Caseworker, specialises in asylum and human rights work and has particular expertise in cases involving stateless persecution, asylum-seeking children, human trafficking and exclusion from the Refugee Convention.

Zofia said: “As specialist asylum lawyers it is difficult to stand by as children who have fled from war and persecution in Darfur, Afghanistan and Syria spend months living in the most dire situation in the camp facing violence and deprivation every day. The children we met were frightened and confused, several carrying injuries sustained in the camp and unable to comprehend the barriers that still remained in their way.”

In a ground breaking order, the Court of Appeal ruled that unaccompanied children and dependant adults should, under European law, be allowed to be reunited with their family members in the UK whilst their asylum claim is being considered. Bureaucratic failings meant that despite there being many provisions which can aid children to come to the UK, in practice it is virtually impossible. Recent figures suggest that there are more than 600 unaccompanied minors living in the Jungle in dangerous and squalid conditions. So far the number who have made it to the UK legally this year is between 20 and 30.An amendment to the Immigration Act allows the British government to resettle unaccompanied refugee children registered in Europe but so far few local authorities have provided the support for this to happen.

Duncan Lewis is committed to assisting unaccompanied refugee children to obtain safety as swiftly as possible. For further information about our work please contact Zofia on 0203 114 1188 or alternatively on zofiad@duncanlewis.com or Sondos on 0203 114 1234 or alternatively on sondosa@duncanlewis.com.

Duncan Lewis Solicitors shortlisted for Law Society’s Excellence Awards 2016 in Business Development Geoffrey Yeung

Shortlisted for Law Society’s Diversity & Inclusion 2015 Excellence Award, Duncan Lewis Solicitors are pleased to announce that they have been shortlisted for the prestigious Law Society’s 2016 Excellence in Business Development Award for the first time.

Head of Business Development Geoffrey Yeung said: “We are delighted to be nominated as a finalist for the highly recognised Law Society’s Excellence in Business Development Award and it is a fantastic way to showcase the firm’s profile in a fast and competitive market”.

The Law Society’s Excellence Awards annual ceremony is committed to celebrate excellence across all disciplines in the legal profession and is designed to reward outstanding contributions to the industry.

Results will be announced at the Law Society Excellence Awards Ceremony on the 20th October 2016.

24 The Bill of Middlesex

compulsory purchase and planning law

COMPENSATION: PROTECTING TRADING COMPANIES

By Barry Denyer-Green

A compulsory purchase practice never lacks interest.

W

hether it is managing the unreasonable expectations of claimants for compensation, or advising an acquiring authority as to the limitations of statutory powers to permit them to do want they want to do, it is all good fun. One of the common issues of the moment concerns the compulsory acquisition of leases, particularly business leases.

it had to be assumed that the landlord would recover possession at the earliest date permitted under the date whether or not the evidence showed that it was unlikely that the landlord would want to recover such early possession. This decision is relevant to leases with short terms, leases subject to early determination clauses, and contracted out leases.

The effect of the decision can mean that where early possession Crossrail 2 is beginning to throw up problems for landowners could lawfully be obtained by the landlord, it cannot be assumed and tenants, as does HS2, and now is the time, as with any that the tenant could have continued in possession beyond that proposed scheme involving compulsory acquisition, to consider earliest date, and therefore it cannot be assumed that a business landownership and tenure issues. Too often the freehold, or a tenant could have continued to earn profits at the lease in land, is held by ABC Holdings Ltd, and One of the premises beyond the date when possession could the occupier is ABC Trading Ltd. If the trading common issues first be obtained by the landlord. company has no lease from the holding company, of the moment and this is really quite common, it has no As a claim for loss of profits in the future is concerns the compensatable interest, and any claim for dependent on the ability to continue in occupation, compulsory compensation in due course, following a in the absence of compulsory acquisition, the acquisition of compulsory acquisition, may be severely limited to leases, particularly Bishopsgate case can mean that a business tenant, that allowed under s.37 of the Land Compensation who had every reasonable expectation of remaining business leases.

Act 1973. That could be very serious to the trading in occupation well beyond the date that the landlord company if the costs of relocation, the loss of profits or any could theoretically have recovered possession, may not be close down of the business are high. adequately compensated.

Whilst such heads of claim are in principle allowed, regard is had to the reasonable expectation of how long the tenant might have remained in occupation, and where there is no lease, such expectation can be difficult to prove and may well be a lot less than the term of any lease that the tenant could otherwise be holding.

But the position can be remedied if steps are taken to change the tenurial arrangements as early as possible.

Barry Denyer- Green is a Barrister at Falcon Chambers and an Arbitrator at Falcon Chambers Arbitration.

Now is the time to ensure that such holding companies have suitable leases that will preserve future compensation claims.

It is unlikely that the grant of any necessary lease at this stage will fall to be disregarded for compensation purposes under s.4 of the Acquisition of Land Act 1981, although that might not be the case once statutory powers are enacted.

In all cases of trading or other companies or individuals holding leases, the leases should be carefully considered.

It was held in Bishopsgate Space Management Ltd v London Underground [2004] 2 EGLR 175 that, for compensation purposes,

The Bill of Middlesex 25

privacy law

A NEW TORT OF

PRIVACY?

In PJS v News Group Newspapers’ Ltd [2016] UKSC 26 PJS successfully applied to the Supreme Court for the continuance of an interlocutory injunction preventing News Group Newspapers (NGM) from publishing, in England and Wales, a newspaper story identifying PJS as a famous celebrity who had engaged sexual activity involving two other people when he was in a civil partnership with YMA (who he married in 2014).

This was despite the fact the identity of PJS and his sexual activity are readily available on the internet and a hard copy of the story had been published in a Scottish newspaper. The Supreme Court allowed the injunction to remain in place by a 4:1 majority. The majority were Lord Mance, Lord Neuberger, Lady Hale and Lord Reed.

The dissenter was Lord Toulson.

PJS could not pursue a remedy based on a right to respect for his private life in article 8 of the European Convention on Human Rights.

This is because section 6(1) of the Human Rights Act 1998 states that It is unlawful for a public authority to act in a way which is incompatible with a Convention right but NGM, as part of the commercial press, is not a ‘public authority’. In addition there is no statute to be interpreted in a compatible way with the Convention as required by section 3 of the Human Rights Act 1998. However, the Convention remains relevant because the Supreme Court is a public authority and it is obliged to develop domestic law in a way which is compatible with Convention rights. This is known as indirect horizontal effect.

to intrusion as newspapers have greater impact and creditability than internet. This points to a tort of invasion of privacy based on intrusion.

In his dissent Lord Toulson states that the story is so porous that an injunction is pointless and there is no difference in publication on the internet and in the print media at [86]& [89].

The injunction is not permanent and can only be made permanent after a trial. Section 12(3) of the Human Rights Act 1998 states that no interim injunction is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. A permanent injunction is needed to prevent the tort of invasion of privacy and the Supreme Court majority obviously believes that PJS is likely to establish that at trial.

If NGM published the story there would be no breach of PJS’s article 8 rights by NGM because it is not a public authority but publication could constitute the tort of invasion of privacy by NGM. The purpose of injunction will be to prevent the tort but the trial court as a public authority will have to balance PJS’s right to So the question So the question to ask is what existing wrong would be respect for his private and family life against NGN’s right to ask is what committed if the story was published? The two possible to freedom of expression under article 10 when deciding existing wrong wrongs (or torts) are (i) breach of confidence or (ii) to make the injunction permanent. Section 12 (4) of the would be misuse of private information. These were held to Human Rights Act 1998 provides that the court must separate torts in Vidal-Hall & Others v Google Inc [2014] have particular regard to the importance of article 10 and committed if EWHC 13. But Lord Mance (who gave the leading requires the court to take into consideration whether the the story was judgment) appears to create new law when he says at story is likely to be available to the public, the public published?

[32]: interest in publication and any privacy code such as the ISPO code which came into force in January. But section ‘Every case must be considered on its particular facts. But the 12 does not give greater weight to article 10 as ’each right has equal starting point is that (i) there is not, without more, any public interest potential force in principle, and the question is which way the balance in a legal sense in the disclosure or publication of purely private falls in the light of the specific facts and considerations in a particular sexual encounters, even though they involve adultery or more than case’ per Lord Neuberger at [51]. In view of the majority decision in one person at the same time, (ii) any such disclosure or publication the Supreme Court, at trial the balance is very likely to come down in will on the face of it constitute the tort of invasion of privacy, (iii) favour PJS’s article 8 rights because of the intrusion that would be repetition of such a disclosure or publication on further occasions is caused by a print publication (not only to PJS but also to YMA and capable of constituting a further tort of invasion of privacy, even in their children) so that a permanent injunction will be required to relation to persons to whom disclosure or publication was previously prevent the tort of invasion of privacy by NGM. made - especially if it occurs in a different medium.’

Not surprisingly the Supreme Court decision has caused a storm in This creates new law as before this case there was no tort of invasion the print mass media: ‘Arrogant judges and cowardly politicians must of privacy known to the law. This cannot be stated with complete not threaten free speech’ Daily Telegraph 20 May 2016. If the confidence as when Lord Mance is discussing what damages would Supreme Court has got the balance wrong and the law is an ass it be available for the wrong he refers to misuse of private information will be for Parliament to amend section 12 to make it clear greater at [42]. Lord Neuberger (who agreed with Lord Mance) refers to an weight must be given to article 10 rights. individual’s rights in respect of confidentiality and intrusion and whilst

By Simon Parsons, the injunction could not preserve the confidentiality of the identity of PJS (and of his spouse YMA and children) it could prevent intrusion or harassment at [62] & [63]. Publishing the story in print could lead

The Bill of Middlesex 27

legacies

CANINE CARE CARD Some dog owners worry about what might happen if they were to pass away, leaving their beloved four-legged friend behind without an owner.

Thankfully, Dogs Trust offers a fantastic free service that aims to give owners peace of mind, knowing that their dog will be loved and cared for if the worst should happen.

The Canine Care Card service not only offers 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 given them lots of TLC whilst they waited to find their happy new homes. Two such dogs were Greyhound duo, Red and Sally, both seven, who arrived at Dogs Trust Basildon, after their owner sadly passed away. They were looking for a lovely big garden to sprint around in, and a snuggly sofa to stretch out their long legs in the evenings. Dogs Trust Basildon was able provide them with a comforting home-away-from-home, sofa and all, until they found their ‘furrytale’ ending with a loving new family.

Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving owner.

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 Red, Sally 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 - which 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�.

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28 The Bill of Middlesex

conveyancing

A history of innovation in specialisation The Council for Licensed Conveyancers was established in 1985 to foster competition and innovation in the conveyancing market.

30 years on we are still helping legal businesses thrive by finding new ways to meet changing customer expectation.

Our approach is to support firms to achieve compliance and to accommodate different ways of working where we can. Our experience as a specialist regulator of conveyancing and probate allows us to tailor our regulation to those areas of property law.

Thriving conveyancing businesses…

This history, approach and experience may explain why CLC regulated firms have grown to enjoy a market share of transactions that is far greater than their numbers would suggest.

CLC firms make up just 4.4% of Land Registry account customers but generate more than 10% of transactions by value. The average number of transactions for value in September 2015 was 50 for CLC firms and 20 for all others.

EDUCATING AND REGULATING SPECIALIST LAWYERS PROTECTING THE CONSUMER SUPPORTING INNOVATION, COMPETITION AND GROWTH

CLC regulated firms account for 25% of the transactions carried out by the top 100 conveyancing firms by volume. But there are thriving firms of all sizes and types regulated by the CLC. …with no need for additional accreditation There has been no need for an accreditation scheme for CLCregulated firms or lawyers. Specialisation and the scale of firms as well as the effectiveness of regulation have meant that such schemes are unnecessary. n Find out more To find out more about qualifying as a CLC lawyer or how to set up your conveyancing or probate practice under CLC regulation, visit our website www.clc-uk.org or call us on 020 7250 8465.

IT’S TIME TO THINK ABOUT THAT MOVE

To find out more about how your practice could benefit from transferring to the CLC, contact us on the details below.

www.clc-uk.org/Changing-Regulators or call 020 7250 8465 The Bill of Middlesex 29

conveyancing

Conveyancing and tech there is no time like the present to make a change Lately I have noticed more and more that technology has us living as a 24-hour society. between 3-5 websites to complete a conveyancing matter, and more Our days are quickly filled, particularly through the use of said tech, than 60% said that the ability to complete contracts online would make whether at home or at work, and we find ourselves describing our lives more and more as ‘busy’. Being in a fast paced society means we have the conveyancing process more efficient. This clearly shows there is certainly an awareness that investing in consolidated technology is learnt to expect instant gratification when purchasing an item or service, imperative to maintaining a competitive edge and being as efficient as as well as receiving swift, exceptional customer service – and all at a possible, particularly in industries such as conveyancing. However, the competitive price, of course. As a service industry, legal firms are not immune to these attitudes and it is issues around the efficient use of time same research shows that the market is still accessing numerous websites to complete a single transaction. From the initial and the direct effects of it which can be addressed by searches through to indemnities and submission of notoriously using process consolidating technology.

There is no time lengthy forms, such as SDLT and AP1, you should expect to be like the present As global use of technology grows exponentially, legal able to access all the key tasks in one location, in turn creating to make a change firms have been pegged as slow to adopt new systems efficiency and allowing you to focus on providing exceptional in the technology and processes, and as lawyers are often risk-averse and customer service. you are using. time-poor, there may be less motivation to spend unbillable time researching or implementing new technology. However, I recently read the Lexis Nexis Bellwether Report, 2016 which provided an optimistic view of attitudes toward technology in the legal industry, where it stated that over 90% of the lawyers surveyed agreed that “continued investment in technology is no longer optional – it is a ‘must’”, and 64% of respondents ‘strongly agreed’ that continued investment in technology is essential to legal practices.

There is no time like the present to make a change in the technology you are using. Change can allow firms to turn their focus to those areas which clients value the most, those which make the biggest difference to their experience, which is especially important given that research shows how much time is required in managing client expectations. This means that by identifying systems and processes that are going to benefit both internal and external stakeholders in the long term, early adopters of innovative technology will reap the benefits. n

So how does this stack up with reality? In a recent survey performed by InfoTrack, 73% of conveyancers who responded said that they use

By Adam Bullion, Head of Marketing, InfoTrack.

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Legal Indemnity Insurance

conveyancing

Environmental searches: a simple solution to the complex issue of flood risk.

In June, we witnessed flash flooding on an almost biblical scale.

In parts of Southern England, cars were caught in rising floodwaters and businesses were forced to close as almost a month’s worth of rainfall fell in just one hour.

There are many common misconceptions around flood risk.

When we think of flooding, there’s a tendency to picture a river that’s burst its banks. However, that’s not always the full story.

Did you know the Environment Agency estimates that more properties in England are at risk from surface water flooding than flooding from rivers and the sea?

In its practice note from May 2013, The Law Society draws attention to these hidden dangers, stating: “It may not be obvious when a property is at risk from flooding. Properties do not need to be close to a river or the sea or on low-lying ground to be exposed to flood risk. Surface water, groundwater and overflowing sewers are increasingly common causes of flooding.”

So, how do you make sure that your clients’ property transactions are completely watertight?

“Flood risk is a complex issue but the solution for conveyancers is simple,” says Steve Johnson, Account Director from Landmark Information Group. “The right property search will accurately

identify the level of flood risk at a client’s property while removing the burden of interpretation from the conveyancer’s shoulders.”

Thames Water Property Searches offers Landmark’s standalone Homecheck Flood report, as well as the all-encompassing Riskview Environmental Search, both of which offer a fully practice note compliant flood risk assessment.

“While misconceptions may abound, it is common knowledge that buying a home in an area prone to flooding can make it difficult to obtain a mortgage, obtain suitable insurance cover or sell the property in the future,” says Steve.

“Given the huge negative implications for clients, it is essential that solicitors and conveyancers follow The Law Society’s guidance by addressing flood risk in accordance with the Flood Practice Note,” he adds. “That way both the homebuyer and lender are fully informed before the purchase completes and the conveyancer remains robust in their due diligence.”

If you would like to find out more about our products or would simply like some advice, please do not hesitate to contact our customer experience team on 0845 070 9148 or visit www.thameswater-propertysearches.co.uk

The Bill of Middlesex 31

technology

Technological, innovation and the small law firm Technology has been the biggest driver of innovation in all spheres of life for the past 40 years.

In fact, most law firms operate completely differently to how they operated just 10 years ago.

The application of technology in small law firms has been driven by competition and by market pressure on price. Small law firms are being forced to change to maintain profitability. But there is the opportunity to be pro-active rather than just re-active. You have to think innovatively.

10 years ago, if Steve Jobs had not imagined that more than just business men and women would find it useful to gain access to their email and the Internet from their phones, the iPhone would not be one of the most popular devices in the world today.

Mobility for the masses may not have existed! Today the Internet is used by more smartphones and tablets than any computer, an amazing achievement brought to life by one man thinking innovatively.

So as a small law firm owner, what technological innovations do you need to be aware of?

One of the nice things about innovative technology is that you do not need to be particularly entrepreneurial to get the benefits of innovation â&#x20AC;&#x201C; all you need to do is be willing to invest and implement the right technology.

Investment in the right cloud based case management system for your law firm is key to remaining competitive. Suppliers of such technology need to innovate in order to succeed, striving to produce the best product available for you, the client. This drive to stay ahead of the curve ensures software companies continue to provide the most advanced technology available for your legal practice.

Law firm owners no longer have to provide the office space and all the attendant infrastructure to enable them to work, significantly reducing costs.

Mobility Just a few years ago mobility for a lawyer meant carrying paper files of confidential client information around. Today you can sit in court and access the electronic file for a case on your smartphone, tablet or laptop. You can send emails, check financial balances and send messages from the case, from the palm of your hand. All the information is up to date and can be shared with anyone else in your office.

Although you require an internet connection for full functionality.

The right cloud case management system can allow you to work offline as well, which is particularly handy when flying. LEAP for example automatically synchronises when an internet connection is re-established making your work instantly available to your colleagues.

Flexible and remote working arrangements Cloud based case management technology is allowing innovative and entrepreneurial law firms to recruit and retain the very best talent.

It allows law firms the freedom to recruit staff and have them work remotely and more importantly offer flexibility to highly valued, existing staff members whose personal circumstance may have changed or are in need of a better work life balance.

Peter Baverstock is Chief Executive Officer of LEAP in the UK and has been involved in developing software for small law firms for more than 20 years.

He may be contacted at peter.baverstock@leap.co.uk or you can connect with Peter on LinkedIn. You can also visit www.leap.co.uk for more information.

What are the legal innovators doing?

The introduction of cloud based case management software is creating a host of new ways to structure a firm.

IT simplification The fact that you no longer need to spend time and money managing IT server infrastructure makes life a lot easier. The money previously spent on this big ticket item is available for reinvestment in growth or can just go straight to the bottom-line.

Workforce location The traditional paradigm of staff having to travel into the office is a thing of the past. Instead of wasting time spent commuting, highly productive workers can work from home or wherever else they choose. As well as the obvious benefit to both staff and practice of allowing more time to be spent working on matters.

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book review

“THE WHITE BOOK” CIVIL PROCEDURE 2016

By Editor in Chief: Rupert Jackson ISBN: 978 0 414 05564 3 (Vol. 2 Hardback) 978 0 41405 665 7 (set) 978 0 41405 664 0 (Volume 1)

Sweet & Maxwell Thomson Reuters www.sweetandmaxwell.co.uk

OUT NOW IN THE NEW 2016 EDITION: THE INDISPENSIBLE REFERENCE GUIDE TO THE CIVIL PROCEDURE RULES An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers It is well-nigh impossible to overstate or exaggerate the usefulness, comprehensiveness, authority, and reliability of that famous twovolume work of reference known as “The White Book”. As most or all barristers will tell you, there is scarcely a court anywhere in England and Wales where you won’t find “The White Book” revealing its conspicuous presence on the judge’s desk.

Once you subscribe to the CD and print service, there is a single CDROM available which contains all the materials in “The White Book”, plus additional materials for research, together with a link to the most recent version of the Rules and Practice Directions. Additional content online and on CD is cross-referenced in the print volumes throughout, indicated generally by mouse icons and cross symbols.

If you are a civil practitioner, it is not unfair to say that having “The White Book” with you in court gives you, in so many circumstances, a degree of advantage ranging from ‘a slight significant edge’ through to ‘absolutely overwhelming.’ The news now is that the 2016 edition has recently become available, published by Sweet & Maxwell.

‘Is that all?’ you might ask. Well, no -- there’s more. Also included as part of your subscription, is rather a unique glossy paperback entitled ‘Costs & Funding Following the Civil Justice Reforms: Questions and Answers.’ As costs are always of paramount consideration, this is the book that, in the words of the publishers, ‘no practitioner involved with costs can afford to be without.’

There are of course a number of reasons why “The White But note that Within its three-hundred or so pages and nine chapters, it Book” has achieved -- and continues to maintain -- its “The White answers hundreds of questions that practitioners have pre-eminence and why it is considered the most Book” commonly asked in the wake of the 2013 Jackson reforms authoritative reference for barristers, solicitors and judges.

First of all, a key feature of any work of reference, is a lot more on costs and funding. These are listed in detail in the book’s table of contents. The subsequent answers -- which range especially a hefty one, is its ease of use and it is here that than just from the simple to the necessarily complex -- cover a range “The White Book” excels. The accompanying ‘Book Use a book. of topics, from funding of litigation and case and costs Guide’ gives you clear, explicit instructions as to the ins management, to settlement offers, summary assessments and outs of how to find what’s where in “The White Book”. and much more, all reflecting the latest developments in costs and And once you know your way around it, you will find it – yes – easy to funding which have evolved post-Jackson. use.

Compiled, written and produced by experts, “The White Book” contains -- with accompanying commentary -- the primary sources of law including Acts of Parliament and statutory instruments relating to the practice and procedures of the High Court and the county courts, pertaining to civil business arising in those courts and subject to the Civil Procedure Rules (CPR). Other sources include, for example, practice directions, pre-action protocols and court guides.

But note that “The White Book” is a lot more than just a book.

Purchasing it gives you access to a range of valuable additional services, many of them provided at no additional charge. For example, both volumes (containing more than 6,000 words) are available as an eBook on Thomson Reuters ProView. Also available on request is a Forms Volume -- a ring binder containing a full set of civil procedure forms, with updates also available for the asking. You can also request a Forms CD containing all three-hundred court forms in RTF/Word and/or PDF format. A replacement CD is issued twice yearly to keep you up to date.

“The White Book” itself builds on a long and interesting evolution. Its publishing pedigree can be traced back to the 1870s, during which the first edition of ‘Annual Practice’ was published following the restructuring of the English civil courts. It was eventually renamed ‘Supreme Court Practice’, the last edition of which came out in 1998.

Finally -- and coinciding with the coming into effect of the Civil Procedure Rules in 1999 -- it underwent a further name change to the now familiar ‘Civil Procedure’.

Ever venerable, yet ever young -- and resolutely current via frequent updates, “The White Book” maintains its reputation as the ultimate authority on the civil procedure rules – and predictably will remain indispensable to judges and practitioners alike. If you practise in the civil courts, this is a work of reference -- plus resource base -- that should help you maintain the highest standards of advocacy.

The Bill of Middlesex 35

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