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(cover story page 17 )







CLAPHAM OMNIBUS the journal of the South London Law Society

Autumn Issue 2016 -

Inside this issue:

■ Legacies ■ Probate ■ Conveyancing ■ Sustainability

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Contents 5


PUBLISHER Benham Publishing Limited 3tc House 16 Crosby Road North Crosby Liverpool L22 0NY Tel: 0151 236 4141 Fax: 0151 236 0440 email: web: ADVERTISING AND FEATURES EDITOR Anna Woodhams


PRODUCTION MANAGER John Barry ACCOUNTS DIRECTOR Joanne Casey MEDIA No. 1465 PUBLISHED October 2016 © Benham Publishing Ltd


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



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


DISCLAIMER The South London Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation. All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.































Mayor of London, Sadiq Khan

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Officers President


Council Member

Gareth Ledsham

Robert Hush

David Taylor

Tel: e-mail:

Tel: e-mail:

Tel: e-mail:

020 8394 6413

020 7815 6725

020 7228 0017


Hon. Secretary

Magazine Editor

Andrew Pavlovic

Sarah Hughes

Eileen Donaghey

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Tel: e-mail:

020 8394 6455

020 7940 4060






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Web Address:

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President’s Review An autumnal welcome to this latest addition of the Clapham Omnibus. The summer months may be behind us but a busy few months lie ahead in the run up to Christmas. An autumnal welcome to this latest addition of the Clapham Omnibus. The summer months may be behind us but a busy few months lie ahead in the run up to Christmas.

One practical step which we think South London Law Society can take at the present time is to demonstrate that we are still open to working with our European neighbours.

Not that the summer months were particularly quiet. The Society has been busy considering the SRA consultation on “looking to the future – flexibility and public protection” in which the SRA sought views from the profession (and more widely) on proposed changes to the regulation of solicitors, specifically creating two separate codes: one for solicitors and one for regulated entities. Members of the South London Law Society Committee and I have reviewed the proposals and attended events organised by the national Law Society to find out more about the proposals, how they are supposed to be implemented, and to express our views. My thanks to all those members on the committee who gave up their time during the summer to do this.

With this in mind, at the time of this journal going to the press, I will be attending the Federation of European Bars Congress in Luxemburg to advocate on behalf of the Society and South London Lawyers as to the fact that we are still open for business to our European colleagues and their clients.

Along with many solicitors, the South London Law Society is concerned that the proposals would result in a “two tier” profession and of particular concern, is the damage they would do to consumer protection. There is also scope for confusion as to the remedies available to consumers when things go wrong. Removal of the need of individual solicitors to have adequate personal indemnity insurance when practising is just one example of how consumer protection may be eroded. The South London Law Society has provided its own response to the consultation and this can be on the South London Law Society website. Another area of the Society’s attention over recent months has been Brexit. Whilst there is much coverage in the media of what the UK’s withdrawal from the EU might look like, there is a lot uncertainty at the moment as precisely what form this will take and the impact on our businesses.

COPY DEADLINES Spring 2017 Summer 2017 Autumn 2017

20th February 2017 12th July 2017 11th October 2017

The Society has also agreed to enter into a twin arrangement with the Luxemburg Bar. A Memorandum of Understanding is to be signed at the Congress in Luxemburg and the purposes of the union is to promote understanding our different legal cultures and to promote across the board a networking opportunity. Finally, a brief reminder of the Society’s annual dinner taking place on 16 November 2016 at the Kea Oval Cricket Ground. This is always an enjoyable evening and a great opportunity to meet likeminded south London lawyers to network in a relaxed atmosphere. Details of how to book can be found in these pages. I do hope that I will see as many of you as possible there. Our guest speaker is president of the National Law Society, Robert Bournes. If any of you have heard him speak before you will realise what an engaging and entertaining speaker he is. As always, should any member have ideas of the events that they would like us to run or articles they would like to be included in the journal please do not hesitate to contact me. Best wishes, GARETH LEDSHAM President South London Law Society

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

Email: Tel: 0151 236 4141

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The South London Law Society cordially invites you to its

ANNUAL DINNER Guest Speaker:

Robert Bourns, President of the Law Society At The

KIA OVAL Kennington, LONDON SE11 5SS date: WEDNESDAY 16th NOVEMBER 2016 time: 6.30pm-7pm dress code: Lounge Suit price:


For tickets please contact Andrew Pavlovic, Treasurer: █ █ 020 8394 6573


President - Robert Bourns Robert Bourns is the 172nd president of the Law Society of England and Wales. He took the post in July 2016 after being voted into office, as deputy vice president in 2014. Robert has significant experience managing and developing a growing business across the UK, having been managing partner for six years, and senior partner for four terms, at TLT Solicitors. He specialises in employment law - particularly with associated regulatory law and commercial firm practice management. He also has experience practising as an advocate, having spent the early part of his career in criminal defence. Robert joined the Council of the Law Society in 2011 and is an elected member of the Management Board. He is one of five representatives for the City of London constituency, and is a member of the Law Society's Equality and Diversity Committee. In his home city of Bristol, Robert is actively involved in a number projects and pro bono work. He has been a trustee and chair of a Hospice for nine years, the founder and director of the Room 13 arts project and a trustee of

Ablaze - a charity devoted to promoting levels of attainment and opportunity for young people in deprived areas. He is also the chair of Bristol's Quartet Community Foundation and well-known in the area for his commitment to social justice.

Regional review – October News Black History Month The Law Society is again celebrating Black History Month this October. Find out more about why we celebrate this inspirational month, what's happening during the month and how you and your society can get involved here. Parliament asks MPs to reject increase in asylum fees MPs were recently urged to reject plans by the Ministry of Justice for a massive 500 per cent increase in fees for asylum and immigration tribunals, which will deny justice to people appealing often erroneous Home Office decisions. The Law Society's President Robert Bourns said: 'The Ministry of Justice's decision to proceed with these punitive increases - despite all the warning about how they will hamper access to justice - is a huge setback for justice in the UK. He concluded: 'The principle of affordable justice for all should prevail over the government's 'full costs recovery model', particularly in an area of law where tribunal appeals are exclusively against decisions of the state." Plans to sell Land Registry are delayed In a recent press release, we stated that delaying plans to privatise the Land Registry gives the government the opportunity to consider carefully concerns raised by the legal sector. 'Privatising the Land Registry would create a range of serious risks to this vital piece of national infrastructure, which supports and ensures the integrity of property ownership in this country. All implications must be fully considered before any decision on whether to sell is made.' said Law Society president Robert Bourns. 'We applaud today's news that the government has not included steps to privatise the Registry in the Neighbourhood Planning and Infrastructure Bill. It indicates they are taking these concerns seriously. Allowing ministers and officials more time to scrutinise before making final decisions is wise.' Welsh Assembly housing legislation consultation The Law Society has recommended that the Welsh Assembly investigate the impact of two key pieces of housing legislation introduced in recent years: the Housing (Wales) Act 2014 and the Renting Homes (Wales) Act 2016. Responding to an Assembly consultation earlier this month, the Society outlined its support for an investigation into the impact of the legislation

on homelessness and on improving standards of housing through the introduction of mandatory registration for private landlords. The Society also called on the Equalities, Local Government and Communities Committee to investigate delays in the publication of standard and secure model contracts which will form the basis of tenancy agreements in Wales. CMA request for information on reserved activities As part of its market study into the supply of legal services to individuals and micro businesses in England and Wales, the Competition and Markets Authority has requested information on the role and scope of the reserved legal activities set out in the Legal Services Act 2007. The Law Society’s response sets out the rationale for October 2016 reserved activities and highlights the importance of these activities to consumers, the economy, the administration of justice, and the wider public interest. Law Society Events In November: Law Management Section finance and business forum - Wed 2 Nov 2016 Pro Bono Charter and Manual launch - Mon 7 Nov 2016 Diversity Judicial Appointment seminars - Tue 8 Nov 2016 International pro bono: what works - Wed 9 Nov 2016 Continuing competence: learning and development is changing Thu 10 Nov 2016 Russian Law Week 2016: Establishing Bridges in Challenging Times - Mon 14 Nov 2016 Money Laundering Reporting Officer networking group, London Mon 14 Nov 2016 The Advocacy Section and the Solicitor Judges Division Michaelmas Drinks Evening - Thu 17 Nov 2016 Judicial appointments: interview training for solicitors - 25 November 2016 Judicial appointments: interview training for solicitors - 26 November 2016 Anti-money laundering and financial crime conference 2016: AML under the microscope - Wed 30 Nov 2016 London Law Fair 2016: Promoting access to a diverse legal profession Morning session - Wed 30 Nov 2016 London Law Fair 2016: Promoting access to a diverse legal profession Afternoon session - Wed 30 Nov 2016

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INSIGHT AND CONTROVERSY: EXPERT WITNESSES KICK OFF AUTUMN CONFERRING AT THE CUTTING EDGE Elizabeth Robson Taylor and Phillip Taylor MBE of Richmond Green Chambers review one of the Highlights of the recent conference season …. The 20th Annual Expert Witness Conference at Church House, Westminster For lawyers in England and Wales, autumn is the contemplative ‘season of mists and mellow fruitfulness’ that also heralds the advent of what is becoming known as “The Conference Season”, during which time there are conferences galore. For at least the last couple of decades, these annual events have become almost an essential part of a well-rounded, grounded -- and well-informed professional life. So political animals generally gravitate to the various party conferences – Labour, Tory, LibDem, Green -- take your pick. And for members of the Bar, there’s the must-go-to Bar and Young Bar Conference in London.

Amiably chaired by EWI Governor Amanda Stevens, the Conference proceeded apace, with speaker after speaker imparting much useful, insightful and sometimes controversial comment on the future of the justice system in general and the varied role of the expert witness in particular.

Lord Kerr Lord Kerr and Dr John Sorabji, who can reasonably be referred to as the keynote speakers, made some memorable points. ‘It is a given’ remarked Kerr, that the role of experts in our legal system is indispensable’, later adding that ‘the relationship between the decision maker and the expert witness can be a delicate and difficult one’!

If you’re a keen conference goer, you’re the sort who inevitably appreciates the opportunities to tap into what’s happening now He went on to say that ‘there are many spheres of legal activity in your field… what’s happening next… what should where expert evidence has been pivotal to the be happening, but isn’t – and why and what you The recent EWI outcome of contested and even compromised, can do, or should do, or shouldn’t do about it. And litigation. In over twenty years as a judge, I have Conference of generally you have opportunities to meet many of heard countless cases in which the result has been 2016 marked the main players in your areas of interest and heavily influenced by the evidence given by impartial, participate (or not) in the usually sharp controversies the 20th distinguished experts, either in written reports or in of question and answer sessions. anniversary of oral testimony.’ the EWI However, there is one conference that often doesn’t He elaborated further on the complementary nature of turn up all that prominently in the purview of the Conference, the respective roles played by the expert and the typical reader of “The Barrister” and that is the and very well tribunal of fact and (where possible) those roles must annual Expert Witness Institute (EWI) Conference. attended it was. be clearly defined. Interestingly, he quoted Lord Held in the central but sequestered and leafy, rather Phillips in a 1997 case in which he observed that collegiate-ish location of Church House in London – ‘when the scientist gives evidence, it is important that he should a stone’s throw from Parliament – this conference is where not overstep the line which separates his province from that of lawyers can garner important insights into the role and the Jury.’ challenges facing the expert witness in court and where expert witnesses can meet and greet each other as well as the lawyers Finally, Kerr reminded judges and jurors as well as experts, of who instruct them. the need to combine humility and assertiveness. ‘Humility’ he said ‘will lead them to defer to each other when appropriate, This article is written in the hope and expectation that the profile while assertiveness should ensure they do so only when of the EWI will be significantly raised. If you are a lawyer appropriate.’ frequently (or even infrequently) engaged in trials requiring expert evidence, you need to know more about the EWI -- and Dr. John Sorabji – ‘EWI in an Era of Reform.’ attendance at this conference does provide the ideal opportunity Another significant speech was delivered by John Sorabji, a to do so, and it is a fun event. regular friend to the Institute. As Senior Fellow UCL, Judicial A deep pool of talent Institute -- and Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls, Sorabji covered a number of The recent EWI Conference of 2016 marked the 20th anniversary important points. of the EWI Conference, and very well attended it was. It was in effect a demonstration of its standing, its burgeoning influence ‘There are plenty of challenges and opportunities for all experts and the pool of talent that sustains it. The roster of distinguished ahead of us because we’re still in an era of reform,’ he said, speakers consisted mainly of lawyers, (some transatlantic) legal referring to the paper from the Lord Thomas and others, entitled advisers and members of the judiciary, including for example, ‘Transforming the Justice System.’ A document much discussed Supreme Court Justice, Lord Kerr. at all the recent legal conferences, it follows on from the ‘Reshaping Justice’ paper of two years ago on which Sorabji has acted as an adviser and commentator. 8 The Clapham Omnibus The Clapham Omnibus 8


For lawyers in England and Wales, autumn is the contemplative ‘season of mists and mellow fruitfulness’ that also heralds the advent of what is becoming known as “The Conference Season”

Sorabji also dealt with two further issues of contemporary note: the fixed costs regime and ‘hot tubbing’ – the latter being the hot topic du jour of last year’s EWI conference (and before). It may have cooled down a bit since then, but it does refer to the use of concurrent evidence, which appeared in England and Wales around 2005, having originated as an import from Australia the same year. ‘It does not save costs’ warned Sorabji, even though, in the experience of most of the delegates, it does make the proceedings of the court easier to follow.

singularly important statement on the role and duties of expert witnesses. As Sir Anthony reminded delegates, the primary duty of the expert is to the court, but there is also the duty to the client. Furthermore, the issue of impartiality should always be uppermost.

carried out by the EWI in such jurisdictions as Singapore and remarked about the fact that EWI membership has now ‘topped the thousand mark’, although the EWI still actively seeks new members particularly in forensic science as it grows.

In the august yet convivial precincts of Church House, there will be much that you can learn to your advantage, so do come next year!

Eat the Frog First: a Plea from Across the Pond

Make what you will of the whimsical title, but this speech was deadly serious and presented with verve and vigour by the transatlantic duo of Alan Anderson and his forensic accountant All the speakers who followed touched on a number of the core associate Carol Ludington. Having acquired degrees from issues involved in identifying - and elaborating on - a number of Cornell University also a PhD from King’s College, London, pitfalls inherent in the role of expert witnesses and their Minnesota-based trial lawyer, Alan Anderson has relationship with the lawyers who instruct them. For been – among his lengthy list of credentials – example, Professor Stephen Mayson, of the Centre “What a Year!” included in The Best Lawyers in America in for Ethics and Law at the Faculty of Laws, University he declared, intellectual property litigation since 2010 and there College London, spoke on the ever-changing face of “Twenty years are a number of other strings to his formidable bow. the legal profession -- in which practitioners must old- we’re contend with national and global as well as local, Basically their presentation centered on the warning two years competition… plus the new regulatory framework that ‘questions that fall within the purview of experts created by the Legal Services Act… and the older than often are left until the end of preparations, or relentless rise of the consumer – and more. deferred entirely’ – and that ‘a reluctance to engage Google!” expert witnesses early in the dispute resolution Having advised barristers’ chambers, law firms and process… often results in poor decisions or a less government departments worldwide, Mayson has than desirable outcome.’ In other words, brief your expert also appeared as an expert witness himself on law firm witness sooner than later, or you might be in for a spot of bother. management in proceedings before the Solicitors Disciplinary You have been warned. Tribunal. All this and the impact of alternative business structures has created tensions, but it’s not all bad out there. The market Lawyerly debate for legal services is huge and continually expanding with a total Sadly, space limitations rather rule out further detailed value of £30bn annually, which apparently is no more than a descriptions here of many of the other conference speeches, mere estimate. some of which dealt with highly specialised topics. Suffice to say, however, that the EWI Conference as a whole was ‘Two years older than Google’ some words distinguished in particular, by useful, organized, highly from EWI’s fourth Chair professional and high quality debate, lawyerly in tone and What followed on from this cautionary yet optimistic message content because it was led largely by lawyers -- and punctuated were some words from Sir Anthony Hooper QC, who is the EWI’s with question and answer sessions that were illuminating and fourth Chair. In celebration of the EWI’s twentieth anniversary, he challenging. encouraged members to raise the profile of EWI for members So later this year -- only a few months hence -- when autumn present and future. leaves drift past your window – and the start of the legal term ‘What a Year!’ he declared, ‘twenty years old- we’re two years looms -- plan to take in a conference or two. The networking older than Google! And we are doing what we should be doing opportunities are first class and the food isn’t bad either, as an Institute.’ especially at the EWI Conference, which you really must make a note of in your Chambers diary. Sir Anthony also mentioned the increase in online teaching

As a final point, Sir Anthony referred to the decision in Kennedy v. Cordia heard on 10th February 2016, a leading case heard recently in the Supreme Court. Regarded as pivotal, the case highlighted and examined the role of the expert, thus creating a

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Compulsary Purchase and Planning Law


A compulsory purchase practice never lacks interest. 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 Clapham Omnibus 11


ENJOY LIFE’S GREAT ADVENTURE WITH SIMPLEXITY TRAVEL It was Mario Andretti who famously said, “If things seem under control, you are just not going fast enough.” Whilst we are the first to admit that winning a Formula One World Championship is not within most people’s grasp, there are other ways to get that adrenalin rush. And when it comes to combining excitement with a holiday, the choices are many. We’ve asked specialist Mark Smith, Head of Business Development for Simplexity Travel, for his top five adventure holiday recommendations.

Black Water Rafting, New Zealand White water rafting you’ve probably heard of (and if that’s your thing I would definitely recommend the Grand Canyon) but black water rafting? Waitomo Caves in New Zealand’s North Island has become synonymous with this unusual underground activity. With the aid of just an inner tyre tube, explore an enormous cave paradise of stalactites and stalagmites, float through glow-worm-lit grottos and have fun bouncing down rapids. These caving trips are not your average lazy river type experience however. They can also involve crawling through passages, jumping off waterfalls and rope descents.

The Andes on Horseback Saddle up for an eight day ride across the Andes that takes you from Puerto Varas in the Lake District of Chile to the Argentine national park Nahuel Huapi. The trek follows the old pioneer trail that crosses the remote Puelo Valley, a route once used by smugglers. Aside from the breath-taking scenery, you will get an insight into the local culture as you stay at isolated ranches and camp out in the Patagonia wilderness.

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Scuba Diving in The Great Blue Hole, Belize The Great Blue Hole is a large underwater sinkhole off the coast of Belize made famous by Jacques Cousteau who declared it one of the top ten best scuba diving sites in the world. Viewed today as a bucket-list destination by most divers, the hole is almost perfectly circular, over 1,000 feet across and 400 feet deep. Divers descend along the wall to a depth of 130 feet where stalactites, formed from dripping water when the cave was above sea level, are clearly visible. The site is surrounded by reefs, making it ideal for snorkellers too.

Dog Sledding in Sweden The ultimate trip for dog lovers and adventurers alike, a huskie-led sled whisks you along ancient travellers’ routes and through birch forests untouched by mankind. A chance to breathe pure air and enjoy a silence so intense you can almost hear it, this experience also offers a wonderful opportunity to see the Northern Lights.

Sea Kayaking in Scotland If you’ve only got a few days to spare, then how about learning to sea kayak on the crystal clear waters of Scotland’s mountainous west coast? There can be no better way to explore the local cliffs, caves, tunnels and secluded beaches and spot the indigenous wildlife, from puffins, whales and seasonal dolphins to the ever present porpoise. The truly adventurous can choose to camp, whilst the less hardy can opt to rest their weary limbs in a friendly inn. So, if lying on a beach with a book in one hand and a cold beer in the other doesn’t quite do it for you, speak to the experts at Simplexity Travel. For more information please see or call Mark Smith on 0203 535 9290.

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Junior Lawyers Division

EU law: Irrelevant or a commercial advantage? Should EU law remain compulsory for aspiring solicitors, asks Matthew Allan. Matthew is the Law Society Council Member for Trainee Solicitors and LPC Students. Since before the outcome of the EU referendum was known, the Law Society, and its Junior Lawyers Division, have been fielding students’ questions about the future of legal studies in the event of a ‘leave’ result.

Not only have the treaties of the EU contributed towards the UK’s own constitutional development by building on the judicial and legislative checks and balances that underpin our democracy, but their impact is bigger than just the UK.

Students have since become increasingly agitated by the uncertainty and the Solicitors Regulation Authority (SRA) has sought to steady the ship in these rough waters. It confirmed: ‘Neither the SRA nor the BSB will be making any change to the academic requirements in relation to EU law for either the qualifying law degree or common professional examination for the coming academic year [2016/17]. And the SRA will be making no change to its requirements for the legal practice course for the coming academic year.’

Solicitors cannot afford to become blinkered by the borders of England and Wales. In the as-yet-to-be-defined future that law students will practice in, an awareness of the outside world will prove invaluable, perhaps to even rival the currently lauded ‘commercial awareness’. We have all been promised that exciting new markets will open up and that trade will thrive. Knowledge of how laws have been built and developed in a complex multi-state framework will surely only prove to be a benefit.

And so, for the time being, law students will continue to study a branch of law that they may believe became irrelevant overnight.

This cosmopolitan view only goes so far in demonstrating the value of continuing to study EU law. A pragmatist may point to areas like human rights, environmental regimes, and the regulation of competition, which will likely continue to be directly applicable here. Not to mention the free movement of goods and people that will have a lasting impact on how the UK works and trades post-Brexit.

Beyond tantalising case law relating to bananas, cats, and such liquid delights as Cassis de Dijon, ‘EU law’ also tackles the heavy issues, as demonstrated by the weighty-sounding Reprographic Machinery case or Statistical Levy case. Apart from schadenfreude brought on by knowing law students must continue to learn these cases, there is more for them to gain from developing this breadth of knowledge.

So, despite the uncertainty, students shouldn’t rush to bin EU law. If the tension gets too much, you can at least relax with a refreshing pint of Cassis de Dijon.

Such cases have influenced, hence become part of, our own 'This article first appeared in Solicitors Journal on 20 common law tradition. Beyond whether an EU regulation has September and is republished with kind permission'.■ been incorporated into UK law or if a directive has ‘horizontal direct effect’, the impact of EU case law over decades will invariably warrant a deeper understanding. But do tomorrow’s solicitors really need to know their TEU from their TFEU? In short, yes.

TheClapham ClaphamOmnibus Omnibus 15 The

Junior Lawyers Division


Late Summer Drinks Evening On Thursday 15 September, the South London Junior Lawyers Division held a late summer drinks evening for their members. The event was kindly sponsored by 7 Bedford Row and hosted by Russell Cooke at their Bedford Row office. We are very grateful to both Russell Cooke and 7 Bedford Row for their generosity. The evening was a great success, with over 30 members and guests attending, and fun was had by all. It is no secret that the legal world is fiercely competitive, both in terms of attaining jobs within the profession and in the business of law itself. In such an environment, it seems to be increasingly the case that skills in business development and marketing are imperative for anyone wishing to pursue a career in law. By creating what we hope is a somewhat more relaxed environment than networking events at work, we aim to facilitate the development of such skills for junior and aspiring lawyers. Our

events provide opportunities for those early in their legal career to practice networking with each other and to share stories and top tips about business development, career progression and much more. The South London Junior Lawyers Division organises a number of events each year, including: talks, discussion groups, a quiz (in partnership with the South London Law Society) and seasonal social drinks events. If you are a lawyer under five years PQE, a trainee or a paralegal and living or working in the South London area, you can join our society free of charge. If you are interested in finding out more, please contact Louise Taylor or Mala Palmer

Q&A With Louise Bate, Solicitor From Beverley Morris & Co. Solicitors Q. How many years are you qualified Louise? I qualified in September 2015. Q. Tell me your journey to becoming a solicitor (e.g. did you go straight to uni, when did you do your LPC) After completing my A levels I went straight to university and then studied the LPC upon finishing my degree. I then took some time out working in two different jobs before starting my training contract. One job was working for a legal publishing company and another was working as an adjudicator in the financial complaints sector during which time I also worked as a mentor for new employees. Both jobs were vital in helping me to develop the skills required of a solicitor – from time management to dealing with difficult clients – and gave me some valuable experience of working in an office environment. Q. Training contracts are extremely competitive, what tactics did you use to source yours? Whilst in my previous role I decided to take two weeks of annual leave in order to carry out work experience at my current firm. Some

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people might call me mad for sacrificing two weeks on a beach in order to gain some extra experience but this was a route I was prepared to take in order to gain a foot in the door in what is an extremely competitive profession. Before deciding to embark on my work experience I researched the firm extensively and thought carefully as to whether it would be a suitable fit for me. My work experience was invaluable as it gave me an idea of what life as a trainee would involve and how I would fit into the work environment. It also allowed me to start building relationships with the people who were to become my future colleagues. I had previously carried out work experience in a city firm and in smaller firms and so I had a clear idea of the type of firm I wanted to work for and was able to tailor my search for a training contract accordingly. Q. Looking at your peers and your own experience, what do you think the main barrier is to getting a training contract? In my view the main barrier is that there is a large pool of LPC graduates with similar qualifications, levels of experience and extracurricular achievements who are competing for a relatively limited number of training contracts.

In some instances firms may be inclined to take on individuals with greater levels of experience or paralegals in order to save money rather than investing in new trainees. The pressure to stand out is therefore enormous. However, sometimes I think it also comes down to simply how well an individual comes across in an interview and whether an employer can see that individual working well with other staff and being able to build relationships with clients. Overall, in light of the expense of taking on a degree and the LPC and the risks involved in not securing a training contract I think it is crucial for any individual contemplating a career as a solicitor to really consider carefully whether it is the path he or she wishes to pursue.


Interview with Sam David and Amy Wedgwood The Clapham Omnibus speaks to two newly qualified solicitors on their journey to how they are in their job today. Sam David and Amy Wedgwood both work in the Injury and Medical Claims department in Anthony Gold. Sam David and Amy Wedgwood

SAM’S STORY Q. Tell me your journey to becoming a solicitor

AMY’S STORY Q. Tell me your journey to becoming a solicitor

I didn’t take the traditional route of becoming a solicitor and in fact I had originally took a degree in Media and Computer Sciences. After graduation, I was unsure about what I really wanted to do for a career so I took a summer job at the Royal St. George’s Golf Club. In my quest to find myself, I ended up staying there (and living on the course) as manager for5 years. At times the club had over 7000 employees - so I was kept pretty busy.

After completing my law degree at University, I had been encouraged to focus on a career in commercial law, as that was where the most fruitful future lay. Whilst many make successful careers in top commercial city firms, I never had that passion for commercial law. While I was unsure of what area of law I wanted to specialise in, I decided to undertake a Master’s degree in Human Rights law which I always had an interest and curiosity in. During the course of completing my Masters, I also gained some relevant work experience, mainly for non-governmental organisations. This experience set me in good stead for when I was ready to find a full-time role.

Q. Would you recommend taking time out and how do you think it benefitted you? The experience of a working-life in a totally different environment makes a person more rounded. Each day I see different people who have the most difficult lives but the varied background does. It gives you something extra to speak about, it makes you work harder because it is a job I worked towards and wanted. Now I make the comparisons with the two different careers I have had and I am grateful for the opportunity that I have been given to do the job I do.

Q. If you didn’t find a job at the firm you had your training contract with, how do you think you would have looked for a position? I was lucky to be offered a training contract with my current firm – but I did work hard for it. If it had not worked out how it did I wouldn’t have taken a scatter gun approach when thinking about applications: I was focused on the area of law I wanted to work in and I would have targeted the firms that specalise. Perhaps – I would have done more than just the typical application; I would have made myself known and written directly to people.

Q. Thinking about your journey to qualifying and securing a position, what tips would you give others to securing a job? It’s hard to say what an individual firm is looking for – but the more experience you have must be a plus and good academics help too. It is good to be focused on what you want to qualify into. A good attitude and plenty of initiative will help you stand out from the crowd. If you show a passion and willingness to work hard – surely that must help - why would you be offered a job in a specialist area if you didn’t have any passion for it rather than someone who did!?

What else is new? The website is also home to the latest news and live jobs from LR legal recruitment, regularly updated so that candidates are always informed with the current trends in the legal and recruitment industries market. It also integrates video media in the form of frequently asked questions and specialist recruitment advice. This platform enables users to fully engage and interact with the site over a multitude of social media channels and engage in current trends.

When I finished my Masters I secured a Paralegal role in the Court of Protection team at Anthony Gold. It was a perfect fit for me and gave me the opportunity to work with some of the most vulnerable in society, so it was satisfying that after all of the hard work at University, I was doing something that I knew was making a difference to people’s lives. Within a month of joining Anthony Gold, I was successful in applying for the firm’s next round of trainees. I then undertook my LPC on a full-time basis, whilst continuing in my paralegal role part-time. I recently qualified into the Injury & Medical Claims team, specialising in Clinical Negligence claims.

Q. You studied your LPC full time whilst working as a paralegal full time. How and why did you do it that way? Studying the LPC, especially in London, can be an incredibly expensive experience. I decided that I wanted to get it done as quickly as I could, so decided the full-time course was the better option for me. Being able to continue practising on a part-time basis was extremely helpful to my studying. It also gave me the opportunity to earn whilst I completed the LPC, so it eased the financial strain a little. It worked really well for me and, although it was hard work juggling studying whilst continuing to practice, it was an effective and quicker way of progressing so that I was ready for when my training contract started.

Q. Training contracts are extremely competitive, what tactics did you use to source yours? I was really fortunate to be offered a training contract just one month after joining Anthony Gold. It was definitely an advantage for me to know ‘Who was Who’ in the firm and understand the culture. Initially, I started with a scatter gun numbers approach, as I wasn’t sure what I wanted to do. I soon realised it was better to focus in on the firms that were doing the work I had a real interest in, do my research and then put together applications that were tailored to them. ■

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A Legacy that lives on Plants are the foundation of all life on earth, providing medicines, foods, fuels, building materials and even the air we breathe.

However, given the threats associated with climate change, land-use change, invasive plants and diseases, best estimates state that 21% of the world’s plants are currently threatened with extinction.

of why plants matter to everyone. We also actively engage thousands of school children each year in interactive, educational and fun sessions to inspire a lifelong love of plants and the natural world.

The Royal Botanic Gardens, Kew, having been at the forefront of plant science for two and a half centuries, is leading the search for plant-based solutions to the greatest challenges facing our planet. With partners across 80 countries, Kew’s Millennium Seed Bank Partnership (MSBP) provides insurance against the risk of extinction of thousands of endangered and rare plants. Numerous experts at Kew also work on global plant conservation projects, continually involving local communities across the globe and sharing expertise. Kew’s scientists are also integrating the latest technology for plant identification and study, revealing their hidden powers and benefits to humankind.

If your clients love Kew Gardens or share our passion for the Millennium Seed Bank, inspirational horticulture, cutting-edge science, botanical art, heritage landscapes or global plant conservation, Kew Foundation (RCN 803428) is the perfect home for their legacy. We would be grateful if they would consider sharing their wishes with us so we can acknowledge their kindness, include them in our legacy events and keep them up to date with our activities.

Our world-heritage listed Kew Gardens in Surrey and stunning botanic garden at Wakehurst in West Sussex bring joy to more than a million visitors each year. We use the power of our science and the rich diversity of our gardens and collections to unlock knowledge and understanding

We are also keen to work with local solicitors in Surrey and Sussex, build relationships with new clients and raise money to support the Royal Botanic Gardens, Kew. Please get in touch if you or your company would like to get involved.

Email or call 020 8332 3249. ■

Pass on your love for life Plants and fungi are the foundation of all life on Earth. You can help the Royal Botanic Gardens, Kew better understand how plants and fungi contribute to solving some of the most critical challenges facing humanity today, such as biodiversity loss, climate change and food security. Pass on your love for life by leaving a gift to Kew in your Will.

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Contact our Legacies Team at

020 8332 3249 The Foundation and Friends of the Royal Botanic Gardens, Kew is a registered charity No. 803428. Registered in England and Wales



A CHARITY Did you know that legacy giving is fundamental to the amazing work of many charities?

Simply mention ‘including a charity’ to your clients.

In fact, legacy income is estimated to be worth almost £2.5 billion a year to charities in the UK. Many charities rely on these gifts to help them carry out their vital work. Two out of three guide dogs and six out of ten life boat launches are paid for by gifts in Wills, as is over a third of Cancer Research UK’s life-saving work. Unfortunately there is evidence of a disconnect between people’s intentions to give money in their Wills and those doing so. Research shows that 35% of those surveyed wanted to leave money to charity in their Will, but only 6.3% do. Remember A Charity works in collaboration with more than 160 member charities, the UK and Scottish Governments and The Law Society to do what no single charity can do alone – making legacy giving a social norm.

Most people don’t realise they can use their Will to take care of not just their family, but everything else that’s important to them as well by leaving a gift to charity. Solicitors can play a key role in the Willmaking process by reminding their clients that leaving a gift to their favourite charity is an option. A report published by the Cabinet Office, working in partnership with Remember A Charity, showed that when professional advisors like you ask their clients if they would like to leave a gift to charity in their Will, they were twice as likely to give.

Making provision for everything that’s important. A Will can be used to look after everything that your client cares about, from family and friends, to charity. Leaving a gift to a charity that your clients are passionate about can make an enormous difference.

Remember A Charity is part of the Institute of Fundraising, a registered charity in England and Wales (No. 1079573) and in Scotland (No. SC038971).

If we can just make a small increase in the percentage of people leaving a gift in their Will from 6.3% to 10% it is estimated we could raise over £1 billion extra for UK charities – the equivalent of a further 10 Comic Relief appeals a year.

Most people don’t realise they can use their Will to take care of not just their family, but everything else that’s important to them as well by leaving a gift to charity.

Your clients may not care that it’s illegal to handle a salmon suspiciously. However, they may like to know they can leave a gift to charity in their Will.

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A Living Legend Every year, we take in around 17,000 dogs every year who have been abandoned, abused or neglected. Dogs Trust never puts down a healthy dog. So with the help of our wonderful supporters, we can give these deserving dogs a second chance in life. Providing expert veterinary care, specialist rehabilitation equipment and training facilities doesn’t come cheaply. Not to mention all the vital everyday necessities like food, bedding and heating. Dogs Trust receives no government funding, so we wouldn’t be able to run our 21 state of the art rehoming centres around the UK without the generous donations from our supporters. A third of our funds come from gifts included in people’s Wills. One such supporter, Dr Thomas Preston, has pledged to leave a legacy to Dogs Trust in his Will, after he and his beloved wife Pat spent 40 years of their married life looking after and rescuing neglected and unwanted dogs. Pat always had dogs from a young age, and couldn’t bear to see them injured or ill-treated. Sadly she passed away in 2014, leaving behind Tom and her darling dogs. It was the shared belief that no healthy dog should be put down that led her to make the incredibly generous decision to leave us a gift in her Will. So if you love dogs like we do, please consider leaving a legacy to Dogs Trust.

We promise we’ll never put down a healthy dog.

A third of our income relies on gifts in Wills. Every year, Dogs Trust cares for nearly 17,000 dogs in our 20 rehoming centres around the UK. We never put down a healthy dog. By supporters leaving a gift in their Will, their love of dogs can live on and help us make the world a better place for them. For more information call:

020 7837 0006 or email: Or please write to:

Freepost RTJA-SRXG-AZUL, Dogs Trust, Clarissa Baldwin House, 17 Wakley Street, London EC1V 7RQ (No stamp required). Please quote “113410”. All information will be treated as strictly confidential

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Reg. Charity Nos: 227523 & SC037843


Dr Elisabeth Svendsen MB BE Founder of The Donkey Sanctuary (by Mike Hollist)

WH HA AT WILL W YO Y OUR R LEGACY G Y BE? Help protecct and care ffo or abused donkeys by remembe ering us in your will. To receive a copy of our Leaving a Legacy guide ‘Y Yo our questions answered’ or o to speak directly with our Legacy y Te Team please contactt 01395 578222


N Name: Mrr//Mrs/Miss

THE DONKEY SANCTUARY Legacy Depa D artment (SJ), (SJ) Sidmouth, Devon, D EX10 0NU.

A ess Addr

A charity regisstered with the Charity Co ommission fo or England an nd Wa Wales No. 264818

Postcode E Email

w w..thedonkeysanctuar www u


Spotlight on


Eileen Carroll QC (Hon) Deputy Chief Executive of CEDR, is one of the most senior and sought after mediators in practice today with over 20 years’ experience as a full time mediator following her career as an international litigator. What drove you to push mediation in the UK? In the 1980s I was practising as a commercial litigator in London and doing a significant amount of international work. I was offered the opportunity of working in San Francisco and during that secondment I had a lot of personal experience of mediating a variety of insurance and construction disputes for American clients. I was so impressed by the effectiveness of mediation in a highly adversarial environment, it motivated me to explore how we could have the same opportunities for our clients in London. I wrote the first article about whether we were ready for ADR in Europe in 1989 in the International Financial Law Review. The following November, in 1990, we launched CEDR at the CBI. There are another number of pioneering lawyers who had the same view and they were part of the CEDR steering committee. We also had tremendous support from major corporations with their global experience, and particularly North American experience, who could see the benefits of mediation in cross border disputes.

How proud are you of the international reputation CEDR now has? Enormously proud. CEDR has always and continues to push way above its weight. CEDR mediation clauses are widely used – we now have them translated in 16 languages! We’ve helped bring ADR to over 70

NOTE FROM THE EDITOR If you or anyone in your firm would be interested in writing an article for the next issue please do get in touch. I’d like to personally encourage you as a South London lawyer to be involved with the magazine and the society as much as possible. If you have an idea for an article, or have some news you would like to share, please drop me an email to

Thanks, Eileen Donaghey, editor

jurisdictions through development consultancy, trained over 7,000 mediators and provided services across Europe and in countries like Cuba, Russia, India, Hong Kong, South Africa and Nigeria. We’ve worked and continue to work closely with organisations such as the UN, NATO, the World Bank, foreign governments and global institutions and CEDR’s Global panel has resident mediators in over 20 countries.

What are the key differences between being a litigator and a mediator? As a litigator you are immersed in your case, emotionally invested in your position and principally thinking of the strengths/weaknesses of the other side(s), risk assessing and reviewing matters as more information becomes available and the litigation process unfolds. As a mediator you have an entirely different role - you are there as a negotiating coach to both parties. In the short time you are working with the clients, whilst you will be aware of the strengths and weaknesses of the legal arguments you will be looking at matters much more broadly: the commercial issues; the emotional issues; and the real focus of the clients which is, in many instances, to get a sensible negotiated exit. I can think of a recent international case I mediated where the parties had a genuine deadlock in relation to transportation of goods which they had tried on several occasions to resolve. Before heading to arbitration, the inhouse legal teams together with senior negotiators flew to London and booked two days for mediation. I reviewed all the background commercial material and we had an extremely productive two days of dialogue resulting in a settlement they had thought previously was not achievable. One of the commercial clients, when asked what he thought made the process work, said being forced to focus on issues that were important for future relationships.

What sets lawyers apart in mediation? Good lawyers in mediation are well prepared. They know their clients and understand their clients. They can create an effective relationship with the other professionals. They have the ability to listen. They have the ability to communicate difficult material well. They are able to quantify the value of their client’s claims and are flexible. These are the good lawyers. The less good lawyers forget that they’re in a negotiation and think they’re still in a courtroom or, worse still, don’t prepare their clients and don’t really participate effectively. Thankfully this is less the norm. What I have been told by many hardened litigators is that learning the skills of a mediator was one of the best professional training programmes they ever attended and has changed their approach to how they handle clients in dispute.








Can mediation really work with complex, high value cases?


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It does! The process has proved itself time and time again in highly complex and sensitive cases, many of which, for confidentiality reasons, we can never reveal. However some have been written about in the press including the Maxwell’s pension debacle and the Alder Hey organ retention case. In my own practice I have had many high profile cases, often at very short notice. I can think of one some years ago involving

Spotlight on

Over 25 years unrivalled experience in dispute resolution, conflict management, training and civil justice systems North American clients and the Lloyd’s insurance market with about £12million in dispute. They had unsuccessfully mediated in California but agreed to mediate in London. It involved about 30 individuals and I mediated over 5 days including the review of all the materials. I was quite proud of the fact that one of the West Coast attorneys said that he believed it was one of the most difficult cases to settle he’d encountered in 40 years and was absolutely amazed at the progress and outcome we had achieved in London.

What’s been your worst /best mediation experience?

Do you think women are better negotiators than men? There are excellent male negotiators and, no, I don’t on balance believe women are better negotiators than men. Men can find it easier to win authority, respect and status. Women have innate characteristics such as: empathy, verbal skills, the ability to create a listening environment and giving parties the feeling they are in control – all very important elements of successful negotiating.

You’re about to publish a book – what would you say are the key messages?

I started this career by seeing mediation as a tool for my clients and other clients. My mantra since then has been to create a process and environment where by mediation serves the client and not the legal and mediator professions. My key message, as set out in our book, International Mediation: Breaking Business Deadlock is that with a wellstructured mediation process you can always get a better level of understanding about why clients are in deadlock, and with the right mediator and clients at the table over 90% of the time you will make very good progress if not breakthrough the deadlock to settlement. It is a What do you believe is the key to breaking deadlock? process that is globally applicable and I hope that more and more One of the key things to breaking deadlock is engaging with the mediation businesses will come to mediation at an early point in time. The book I or negotiating process and really listening to the other side, understanding hope provides the legal profession with a guide of how best to engage with the process, with signposts to the key elements for a successful what their drivers are. One of the greatest weaknesses of the adversarial practice in mediation, so they may better represent their clients. process is the inability to communicate well with the other teams. This is . where mediation steps up and provides a process where effective forms of communication at all levels can take place. You also need to be well prepared, flexible and you need to think beyond law and consider the wider range of interests practically and commercially.

I am not sure that I could say that there has been a worst experience because it is never about me, it’s always about the clients, but you do see some very sad and difficult situations particularly in family business disputes. One of the mediations I remember very clearly going back many years was a family business dispute where one of the family members in their 80s hadn’t seen their grandchildren for some years. Arising out of the mediation they had the first contact with their grandchildren – certainly one of my most satisfying outcomes.

Finally, it’s important to have an excellent grasp of value and work really ably with the different number permutations because many disputes involve an exit price. I remember, going back some years, a pre-issue mediation (always satisfying to see!) in Portugal over loan notes - it was a post-acquisition dispute. We met at the bank in Lisbon and again over two days with very small teams (and costs) we were able to resolve the dispute.

Triggering a mediation and complying with Practice Direction made easy!

How will Brexit impact on International Mediation? I can’t really see how it will impact. Given the development of mediation and the scale of its use internationally, it is most likely that the UK will continue to lead (certainly keep up) with any future European initiatives regarding mediation and alternative dispute resolution. If anything international organisations might be more inclined to mediate because of any potential uncertainly in the interpretation of EU legislation in existing contracts. What I do think is that that those involved in the Brexit negotiations could learn a lot from our experience in international commercial mediation. It will be essential to have strong process – even more so given additional complexity of the length of time these negotiations will take - with many issues such as authority, stakeholder dialogue, timelines and moving agendas being a critical part of an effective process.

What qualities/characteristics make a good mediator? A quick grasp of the issues, the ability to cut through to what is really important to both sides, an ability to listen – and I mean actively listen which is a skill CEDR teaches not only on its Mediator Skills Training but also in its conflict management training. We can all improve our communication with clients, stakeholders and disputants if only we listened more effectively! Patience, persistence, resilience and the willingness to challenge effectively are all essential qualities. But if you’re interested in people, you’re half way there.

ADR Notice

Launched by CEDR, ADR Notice is a free tool for lawyers to instigate mediation. ADR Notice not only benefits the case but also helps litigants (and those dealing with dispute referral clauses) comply with Practice Direction (e.g. PreAction Conduct and Protocols Part 8 and 9).

For more information visit

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Conveyancing Focus

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.


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. ■ 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 or call us on 020 7250 8465.


To find out more about how your practice could benefit from transferring to the CLC, contact us on the details below. or call 020 7250 8465

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Conveyancing Focus

Environmental searches: a simple solution to the complex issue of flood risk. In Summer, we witnessed flash flooding on an almost biblical scale. n 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

you | 01435 868050 | Guaranteed Conveyancing Solutions Limited mited is authorised and regulated by the Financial Conduct Authority. Registered in England and Wales No. 3623950

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Conveyancing Focus

How Technology is Evolving the Conveyancing Market Recently, Apple announced the release of their latest iPhone, and as is seemingly tradition with these releases, there is often a controversial twist involving legacy standards and processes that shake up the status quo, ones that show Apple as a frontrunner of technology.

These moves have included the removal of CD and disk drives in Apple laptops; the changing of charging ports; and most recently, the universal audio jack has been replaced by lightning port, causing much heated debate amongst consumers. However, all these decisions, whilst contentious, are geared towards Apples’ goal of driving the market forwards and making the consumer think differently.

from the risk/reward model that this offers. InfoTrack are one such technology thought-leader who, similarly to Apple, demonstrate an understanding of driving change in a market through a process of evolvement. InfoTrack are introducing solutions that encompass the process from searching through to SDLT submissions and AP1 transfers, and most recently, the introduction of electronic contract packs (eCOS).

So how do Apple and their strategic product plays apply to the conveyancing sector? Technology does not distinguish between industries. There are many companies that create technology specifically for the legal industry, and are working to push the limits of the legal process status quo, driving the market to invoke change.

eCOS is a paperless solution that offers an electronic alternative for preparing and exchanging contract packs (including the TA6 and TA10 forms) between the buyer, seller and their solicitors. Electronic contract packs are a great example of the type of technology that consumers now expect from their conveyancer during the selling process. These Contract Packs are lodged in InfoTrack’s portal and can be accessed from any device, at any time. Utilising this technology avoids delays that are often a result of postage, making eCOS technology an appealing advance for the conveyancing process.

However, it is not only the companies but also the early adopters of new tech that are needed to push changes in the market ahead, and within the legal world, law firms will find themselves benefitting

Unique to InfoTrack, the development of the eCOS is a strategic move to drive change in how conveyancing is conducted, and to encourage law firms to move from legacy based, manual processes to working predominantly in an electronic environment. Companies who take a trail-blazing approach like InfoTrack and Apple, aim to make an impact and lasting contribution on a market. However, they are also aware that implementation can be a slow process of adoption which is why evolution, over revolution, is important. In the conveyancing world where faster, safer, smarter solutions are needed sooner rather than later, it is imperative that the profession are adopting technology from businesses who push the boundaries to drive the market forward. â– By Adam Bullion, General Manager of Marketing, InfoTrack.

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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 or 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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Drainage Law

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.

Information to support your duty of care

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.

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.

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.

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 Lawyers need to report reveals the following key information:

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.

• 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.

• 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.

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.

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

By John Bates.

• The appropriateness or 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.

For more information, please visit email or call 01743 276 150.

• 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. At a recent seminar for commercial property lawyers in London, environmental lawyers, SuDS experts and John Bates and the author of the Guidance discussed impacts on a lawyer’s duty of care to their clients on advising SuDS suitability. Mr Bates 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. • 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 Clapham Omnibus 28


Dear Mr Hammond…. A plea on behalf of UK Businesses We have a new incumbent at Number 11 Downing Street who is contemplating the state of the nation’s finances over the summer before taking action in the Autumn Statement to deal with Brexit and the new Government’s aspirations for our society and economy.

• Nick Paterno managing partner at McBrides sends plea to new Chancellor.

• Philip Hammond, the new chancellor of the exchequer.

If we are to have something of a ‘clean slate’ here is McBrides’ top 6 wish list of how the Chancellor could help SMEs and professional firms.

Our plea is to simplify these rules thereby encouraging investors to provide greater liquidity to our fledgling businesses.

1. Amalgamate National Insurance and Income Tax

4. Withdraw the wasteful employment allowance and give employers a year free from NI contributions on new employees.

Life is complicated enough with red tape affecting every facet of business and costing £billions. So why do we have two sets of rules and two sets of rates and allowances for taxes which effectively do the same thing? Some honesty about how much tax is collected from our citizens wouldn’t go amiss either – the majority of employees suffer tax on their earnings at a combined rate of 32%, not the 20% that most people recall. As long ago as 1986 Chancellors considered combining the two taxes but it keeps getting shelved to the ‘too difficult’ pile. In March the Office for Tax Simplification produced a report which concluded that aligning income tax and national insurance will bring simplification and greater transparency. Please Mr Hammond – get on and do it!

2. Provide some certainty as to how pension fund tax reliefs will operate in the future

This wasteful measure introduced by George Osborne in 2014 gives £3,000 to almost every single employer in the country against their national insurance bill. It was designed to encourage employment, but can anyone really see Marks & Spencer, BP, Barclays et al employing more people because the Government has just given them a £3,000 ‘freebie’ with no effort at all? The rate was increased from £2,000 to £3,000 in 2016 and the cost of that change alone was estimated at £630m for just one year. A more cost effective and targeted approach would be to give a 12 or six month employer’s NI holiday for SMEs on new members of staff.

5. Extend Research and Development (R&D) tax reliefs to partnerships and sole traders.

The tax rules and exemptions around pension funds have been kicked around like a political football in the last few years. The amount of relief available and the maximum size of tax advantaged pension ‘pots’ have been systematically whittled down to make planning in this environment very difficult.

Companies are able to access extended tax reliefs of up to 230% of their R&D spend from the Government. The claiming of such reliefs is becoming endemic and is almost close to being more of a grant to any company applying rather than a true targeted tax relief.

It often goes unappreciated that many business owners use their pension fund cash to buy commercial property to house their businesses. This usually provides significant flexibility for the business in terms of property costs to the benefit of all of its stakeholders.

Our plea to Mr Hammond is to extend the relief to partnerships and sole traders – why should there be an artificial distinction between theirs’ and companies’ R&D? – but have a look at qualifying criteria to reduce the number of spurious claimants.

If not used in this way, pension fund cash is often left invested in stock markets and similar equity investments and owners are less likely, or even allowed, to use this cash to further invest in their businesses, choking off growth prospects.

6. Reinstate the personal allowance for individuals with income in excess of £100k, and recognise that this has encouraged people to restrict their income.

3. Simplify the Enterprise Investment Scheme (EIS) and Seed EIS (SEIS) qualifying rules. EIS and SEIS encourage individuals to invest in small companies. The tax reliefs available under these schemes are enticing, but the rules surrounding them are fiendishly complicated. It’s very easy to break one of the rules meaning the initial investment does not qualify or a qualifying investment becomes ineligible and the reliefs are clawed back. This discourages badly needed investment in SMEs and restricts the availability of funding for small and start up companies who typically find raising finance from traditional sources difficult.

Few people realise the effective rate of tax (including NI) between £100,000 and £122,000 of annual taxable income is 62%. In fact, the majority of people aware of this will be those that can plan their affairs to mitigate against it. Aside from the moral question of why isn’t every person in the country entitled to a personal allowance, the removal of this nasty restriction could actually raise more tax as wealthier individuals stop restricting their income to £100,000 to avoid losing 62% of their hard earned income to tax. By Nick Paterno, Managing partner at McBrides Chartered Accountants

The Clapham Omnibus 29


Genealogical research – The secrets of locating missing heirs With the majority of estates, identifying the rightful heirs is straightforward. However, when beneficiaries are missing or unknown it can throw the entire estate administration process into disarray. A case which highlights these risks involved a spinster who died intestate and left a £200,000 estate. Her paternal family was quickly located and reported that there were no surviving maternal relatives.

unless genealogical research has been undertaken beforehand. For larger estates, a recognised genealogy report is often the only viable option for legal professionals to take.

To safeguard you and your clients against the consequences of a missing beneficiary coming forward, many firms carry out a beneficiary search through a specialist genealogist, like Title Research. They However, when the deceased’s post was redirected to her This may sound provide a comprehensive report which identifies any potential solicitor, a card was received from ‘Cousin Joyce’ who had not unusual but heirs (and locates them if necessary) or at least provides been mentioned by any other family members. As a result, the Title Research reassurances that there is little chance of further beneficiaries solicitor appointed Title Research to research the family tree in existing. greater detail. They identified seven maternal family members reports that 40% of family “In the authors’ view, whilst there is no authority which provides who all stood to inherit from the estate under intestacy rules, trees that they assistance on this point, it is possible that a beneficiary might fundamentally changing the distribution of the estate. check contain successfully argue that the personal representative has acted in This may sound unusual but Title Research reports that 40% errors. breach of duty by appointing an heir locator on such a basis, of family trees that they check contain errors. Had the estate and should be personally accountable for the share that the beneficiary been administered without further investigation, the beneficiaries (and has paid to the heir locator.” their legal representatives) could have been left exposed if entitled beneficiaries emerged after the estate had been distributed. So how do you mitigate these risks? The SRA expects you to take reasonable steps to find all beneficiaries; only small estates of £500 or less can be self-certified and donated to charity. One way of doing this is to ask the beneficiaries whether they are aware of any other heirs but cases like ‘Cousin Joyce’ demonstrate how this approach is inherently unreliable. Specialist insurance cover to mitigate the risk of a missing beneficiary coming forward is also an option. However, very few insurers offer cover

30 Clapham The Clapham Omnibus The Omnibus 30

Tom Curran, Chief Executive at Title Research said: “Failure to carry out thorough genealogical research could result in a missing or unknown heir coming forward after an estate has been distributed. We locate thousands of missing beneficiaries each year which highlights how easy it is for legal professionals to fall foul of assuming that all heirs are accounted for. Our consultant genealogists trace people across the world and have a success rate of over 90%, so we are confident that we can help our clients with even the trickiest of estates.” For more information Title Research’s services, visit or call 0345 87 27 600.


INTERVIEW WITH PETER BAVERSTOCK ON WILLS AND PROBATE Peter Baverstock is CEO of LEAP UK, which offers cutting edge case management systems, including wills and probate forms and materials, to small law firms. In a recent interview Peter talks about how the company has been updating its estate planning offering – and why, since launching in the UK nearly two years ago, it’s racing ahead in leaps and bounds... You just updated your wills and probate material three months ago Peter – why was that? LEAP’s system has always comprised of a wills and probate offering – the wills-side of things was straightforward but producing, for example, an IHT 400 is actually quite a complex matter. So, over the past nine months, we have tweaked our wills and probate case management system – we’ve listened to what our clients want and remodelled it accordingly, now we’re heavily promoting that as part of the LEAP package as we believe it’s now one of the best on the market. At present we have a team of Product Specialists visiting law firms across the UK demonstrating the software and our estate planning material. We focus on high street law firms with 1 to 25 members of staff, generally our clients work across a variety of areas of law. But I’d say around 60% of our current client’s work, at least some of the time, in probate. and that’s why having the right wills and probate package is so important. And to those small firms who aren’t working in probate we’d ask: why not? The ability to work on a probate file is already there, within our system, so use it. Otherwise a lot of probate work is walking out of the door and going to large corporate firms. And that’s daft, when the technology is at our clients’ fingertips.’ Have you had good feedback on the new material? ‘Yes our clients are embracing it, praising the simplicity of generating the 205 and the way the IHT 400 is produced as well.’ Apart from updating the wills and probate process, what other innovations have taken place at LEAP in the last few months? ‘We’re at the forefront of changing the way people work, using instant online chat software with our clients, launched four months ago. So, as soon as a client logs in to our community, a chat box pops up and one of our engineers is online, ready to provide

support. Any issue that can’t be fixed through an online conversation, which the majority of things can, we’ll call the client immediately. We have analysed the new online chat system and it’s taken our call logging times from hours down to minutes. And we’ve received a great response from clients themselves on the efficacy of the system. It’s a lot less frustrating for them than making a call and then waiting an hour or two for a call back – with online chat they connect with one of our support people in seconds. 2016 has been incredibly busy so far – what’s left for the next four months of the year? ‘It has been a busy year but one of our mottos is never, ever give up and we live by that mantra. We’re continually pushing boundaries to ensure our clients have the best service and products. So in September we launched our LEAP iPad application which means clients’ can access their data in a standard format on iPad, lap top, PC or smartphone. We know that small law firms need that flexibility in the way they work – often they’re out on site meeting people to discuss their wills so it’s sensible for them to be able to draft a will there and then, while they’re actually with the client. It’s all about efficiency – allowing law firms to work the way they want to work. If they can be flexible with their practise management solutions, then they can give a much better service to their clients.’ And how is LEAP doing in general since launching in the UK in October 2014? ‘It’s nearly two years since we launched and we have already reached 700 firms using LEAP so it’s going incredibly well and our product is being well received. Clients value it because it’s so simple to use – it works the way they work. As to the future – well as I said before we never, ever give up, we want to ensure our clients get the very best in technology after all we spend some £5m a year with over 50 developers continually looking to improve our solutions.

The TheClapham ClaphamOmnibus Omnibus 31



The Association of Probate Researchers (APR) was formed in response to the lack of regulation in the Probate Research (Heir Hunting) industry. Neil is a partner at Fraser and Fraser, the research firm who have featured most prominently on BBC One’s Heir Hunters programme for 10 consecutive series. After several years of looking at ways to promote regulation, Neil is delighted to announce that APR (which was incorporated in June 2016) is now a recognised body under the Professional Paralegal Register (PPR). APR’s new status is set to benefit its members, allowing them to hold a PPR practising certificate whilst they follow APR and PPR guidelines. The probate research industry is unregulated and APR was set up as a voluntary, self-regulatory body which aims to raise standards and to offer protection to beneficiaries from hobby genealogists and enthusiast amateurs. APR protects consumers (beneficiaries) from firms and individuals who believe that, after having watched the TV series, they can become probate researchers with very little or no legal training and experience. In the past few years there have been several cases of fraudsters posing as Heir Hunters resulting in millions of pounds being stolen from members of the public. This is just the tip of the iceberg. PPR was launched in 2015 by the National Association of Licensed Paralegals (NALP) and the Institute of Paralegals (IoP). The PPR was set up in direct response to the Legal Education and Training Review (LETR) in order to regulate paralegals and only recognise those who provide the highest of standards. APR is the fourth body to be recognised by the PPR and the only body for Probate Researchers or Heir Hunters. All APR members sign up to the professional ethics and code of conduct. Members benefit from: Inclusion on the Register held by the PPR; the ability to apply for Paralegal Practising Certificates which provide regulation that until now has been missing from the industry. The APR has an independent compensation scheme, which has been setup to promote regulation, protect fellow members of the legal industry, and more importantly reassures the general public and beneficiaries that they can turn to an authoritative body if they have been taken advantage of. 32 Clapham The Clapham Omnibus The Omnibus 32

Commenting on this development, APR Chair Neil Fraser said: “APR is the only Recognised Body for Probate Researchers that has access to a compensation scheme and an independent complaints procedure. We are proud to be working alongside the PPR to enhance the status of Professional Paralegals. Our members will at last be able to have their professional status recognised, this is only the beginning in order to justly regulate the industry, but it is a huge first step. “Beneficiaries can be comforted by the fact that our individual paralegal practitioners are regulated and backed by a compensatory scheme, an industry first.” Rita Leat, Managing Director of the PPR added: “We are delighted that APR is now a Recognised Body under the PPR. The probate research profession have been among some of the unsung heroes offering legal services and we welcome them as Professional Paralegal Practitioners. The PPR is the voluntary regulatory body for all legal service providers who work in the unregulated sector. It provides a robust but proportionate set of regulatory standards with a compensatory scheme available to consumers when things go wrong.” The APR is in talks with several of the leading firms in the industry and hope to announce more members in near future.

Book Review

DATA PROTECTION- The New Rules By By Ian Long ISBN: ISBN: 978 1 78473 213 4 JORDAN PUBLISHING LIMITED also available as an eBook

A STRAIGHTFORWARD EXPLANATION OF THE MINEFIELD OF COMPLEX RULES AND REGULATIONS WHICH MAKE UP TODAY’S MODERN DATA PROTECTION LAWS An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This excellent short book by Ian Long is substantially over due for lawyers and lay people alike. He says that this book is essential reading for all data controllers and data processors “and anyone responsible for handling personal data” which is basically all of us today! We thought this book one of the best detailed short statements on data protection available today. In the Preface, Long writes that data protection has become a “minefield of complex rules and regulations” so his aim, successfully achieved is to produce this excellent short book and his accompanying video which can be viewed on the Jordans website and is most helpful. The author also talks about personal data describing it as “hedged around with all sorts of controls to ensure its safety from prying eyes”. Hmm! There is much cynicism around this point although Long goes on to say that the new European Union Data Protection Regulation “will unify and strengthen the plethora of laws that affect every organisation, large and small, that handles personal data”. The list of those included as ‘persons affected’ cover everyone involved in handling data relating to client, customers, employees and “other individuals” all of whom will be an excellent market for this book as its straightforward approach will appeal to all levels of readership. Long’s intention has been to condense a mass of EU and UK documentation into one practical and easy-to-read manual which guides

the reader through all the relevant changes clearly and simply. And we, the readers and users, certainly need this advice as the data protection rules just continue to get more and more complex (quite unnecessarily!) The book covers the following information for you and your business: a simple, comprehensive description of the legal and regulatory provisions; a detailed analysis and commentary on the business requirements; clear examples and case studies; and sample data protection and information security policies. Good advice is on offer throughout the book because the basic rule to be followed is that “you must comply and be able to show that you comply.” That is because you have new requirements and obligations to meet. The author says that the new rules require many changes to business systems, policies and procedures and the entire approach of organisations and professions towards personal data- “now is the time to prepare for the new regime”! A very clear conclusion can be drawn with this short paperback – it is essential reading for all data controllers and data processors and anyone responsible for handling personal data. That is a lot of people! So we can foresee a very wide catchment area for readership with Ian Long’s particularly impressive and readable work. Thank you. The law is stated as at 31st May 2016.

KEATING ON CONSTRUCTION CONTRACTS (10th Edition) By Stephen Furst QC and Sir Vivian Ramsey ISBN: 978 0 41405 571 1 SWEET AND MAXWELL/THOMSON REUTERS

CONSTRUCTION CONTRACTS EXAMINED WITH THOROUGHNESS AND CLARITY: THE NEW TENTH EDITION OF KEATING IS OUT NOW An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This long-established and authoritative work of reference from Sweet & Maxwell deals with the resolution of construction disputes – never an easy task as practitioners at the Construction Bar can attest. If you are one such practitioner faced with the complexities inherent in such disputes, not to mention the often enormous amounts of money at stake – this book should help you cope with whatever challenges ensue. First published in 1955 and updated at regular intervals thereafter, ‘Keating on Construction Contracts’ has become a definitive work in this area of law and now emerges as authoritative as ever in this new tenth edition. Containing much new material since the 9th edition of five years ago, it incorporates the most recent developments by which construction disputes are resolved, including the increasing use of and dependence upon -- mediation and arbitration, especially in matters relating to international contracts. It therefore includes, for example, sections on mediation and dispute boards from contributors Rosemary Jackson and Robert Gaitskell. In the words of the editors Stephen Furst and Sir Vivian Ramsey, the Technology and Construction Court in London and its regional centres ‘continues to take the lead in providing efficient and… cost-effective resolution for domestic disputes and functions as the chosen forum in international contracts’. International arbitration, especially in London, they add, ‘continues to flourish.’ There is therefore much commentary also on the significant construction cases that have been decided in appellate courts. There is, for example, an updated chapter on the SCL Delay and Disruption Protocol. Each case and/or regulation is

explained and in a lucid, plain English style that is typical throughout the book. It is fair to say that every practitioner at the Construction Bar, from novices to experts, will find that this book offers welcome assistance in helping them find their way around and through the complexities of this formidable regulatory environment. Take for example, Clause 61 – and this is only one example – which (over six pages), is examined and explained in detail. As the editors point out, the law of construction contracts is a part of the general law of contract and is not governed by any general codifying statutes. They confirm, however, that ‘where the general principles of the law of contract apply to problems of common occurrence in construction contracts, they have been dealt with in detail in this book.’ Although over 1,200 pages in length, the book has been carefully organized for ease of use, with numbered paragraphs throughout, a detailed table of contents, individual lists of contents at the beginning of each chapter and a 48-page index. Also note the more than 190 pages of tables of cases, statutes, statutory instruments and much more, plus standard forms of key contracts and two appendices. Featuring the expertise and insights of 28 expert contributors, this new edition of Keating belongs in every construction practitioner’s professional library. The editors have aimed to state the law as of 1 January 2016 and have also sought to incorporate significant changes at proof stage where possible.

TheClapham ClaphamOmnibus Omnibus 33 The

Book Review

AIR CARGO INSURANCE By Malcolm A Clarke and George Leloudas ISBN: 978 1 13879 323 1 (book) 978 1 31576 140 4 (ebook) INFORMA LAW FROM ROUTLEDGE, TAYLOR & FRANCIS GROUP, MARITIME AND TRANSPORT LAW LIBRARY

THE FIRST TREATISE ON AIR CARGO INSURANCE COMPRISING PROPERTY AND LIABILITY COVER An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Considering that thirty percent of world trade (in terms of value) consists of goods transported by air, it is surprising to learn, that according to the authors of this book, ‘air cargo insurance is a subject neglected in insurance literature.’ This book, they say, aims to fill this gap by providing what they refer to as ‘the first treatise on air cargo insurance comprising property cover for cargo-interests and liability cover for carriers.’ In today’s business climate when acquisition of overseas markets has become more of an imperative that ever, it becomes imperative that practitioners in shipping and transport law add this book to their library collections. Published by Informa Law from Routledge, the book functions as a much needed addition to Informa’s ‘Maritime and Transport Law Library’ of some forty or so volumes. The book covers virtually every conceivable aspect of air cargo insurance, with the first chapter focusing on general principles, pointing out that the rule of law governing contracts of air cargo insurance is that which governs the formation of most other commercial contracts. There are some obvious differences though, including primarily, the relationship between air carriers and freight forwarders (who in most circumstances, transport air cargo to and from airports). The second chapter gets down to specifics, explaining that the very term ‘air cargo insurance’ is an artificial one, being ‘an amalgam of property insurance and liability insurance’. For those having only a passing

familiarly with this area of law, this chapter comes up with a couple of surprises. One in particular is that air cargo insurance is not one of the priorities of the aviation insurance markets. Apparently most regulators do not impose mandatory insurance requirements on either cargointerests or air carriers. The most notable exception is a specific European Regulation, which is analysed in considerable detail. Subsequent chapters cover, respectively, insurance claims by cargointerests, citing the Montreal Convention… liability insurance… air cargo liability insurance claims… and finally, air cargo property claims. This is certainly a formidable work of scholarship on the part of authors Malcom A. Clarke and George Leloudas, who together express the hope that it will be used as a springboard for further research on air cargo insurance, which unfortunately, according to the authors, is widely considered as ‘a subspecies of marine insurance law.’ Let’s hope then, that thanks to this book and related research, air cargo insurance will no longer be considered the poor relation of marine insurance law. In the meantime, researchers will value the book’s copious footnoting and its inclusion of extensive tables of cases and of legislation, directives and conventions. Ambitious shipping lawyers, alert to change and wishing to extend their expertise into air cargo insurance, will find this book invaluable. The publication date is cited as at 2016.

BREAK CLAUSES (2nd Edition) By Mark Warwick QC and Nicholas Trompeter ISBN: 978 1 78473 034 5 JORDAN PUBLISHING LIMITED also available as an eBook

AN OFTEN OVERLOOKED AREA OF LEASES AND CONTRACT LAW: SO WELL EXPLAINED BY WARWICK AND TROMPETER IN THEIR NEW SECOND EDITION FROM JORDAN An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers The authors of this esteemed work, Mark Warwick QC and Nicholas Trompeter, have undertaken a substantial re-write of the text for the second edition. They comment that the blame for the increase in the large number of cases cited lies on their shoulders and not that of the judiciary. The value of this book is that the case-law included here has tended “to emphasize the importance of strict compliance with the conditions in a break clause, and the content of the break notice” which can often be overlooked. And prominent amongst the authorities emphasizing the importance of the careful drafting of a break notice is the decision in Siemens Hearing Instruments Ltd v Friends Life Ltd [2014] in the Court of Appeal.

that an apparently relatively niche topic such as break clauses in leases can provide enough in the way of legal problems and issues to justify a book running to over 300 pages and over 500 reported cases”. As advisers and professional will know, it is no surprise that break clauses in leases “have given rise to so much difficulty” as Neuberger puts it. He goes on, saying that “experience shows that there is something about the landlord and tenant relationship generally that has a tendency to produce uncertainties, conflicts and disputes, which require legal advice and often end up in court, in arbitration or in mediation”. And this is where “Break Clauses” comes into its own as a leading statement on a very specific area of the law of leases, so well and clearly structured which allows lawyer and layman alike, to deal with the problem in hand.

Another most important topic which the authors have given its own chapter is the recovery of ‘overpaid’ rent and other sums: subject-matter which often features of great importance when one first sees the client with a rent problem.

The last word must be left to Neuberger as it is surely an excellent and much needed book “which treats a difficult and significant topic very well both academically and practically”.

So, the Supreme Court decision in Marks and Spencer plc v BNP Paribas Services Trust Company (Jersey) Ltd [2015] is well covered by a consideration of the implication of a term as to the repayment of rent and detailed discussion of the main points arising from this case.

This book is fundamental for your law library if you act in break clause cases which can often cover ancillary matters such as insolvency, assignment, estoppel, mistake, side agreements and unjust enrichment. We have found this title the best short statement of break clauses available for practitioners and litigants in person today.

Therefore, it can be no surprise that David Neuberger writes in the Foreword that “it is striking, and to the uninitiated it may be surprising,

The Clapham Omnibus 34

The law is stated as at 25th February 2016.

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South London Law Society Clapham Omnibus October 2016  

South London Law Society Business Magazine with the Latest Legal Business News, Law Society News and Updates, Local Partnership News, Practi...

South London Law Society Clapham Omnibus October 2016  

South London Law Society Business Magazine with the Latest Legal Business News, Law Society News and Updates, Local Partnership News, Practi...