MIDDLESEX The BILL of
The Official Journal of THE MIDDLESEX LAW SOCIETY
The Pitfalls of Money Laundering in Conveyancing See Page 7 Inside this issue:
■ Accountancy ■ Free Wills/ Legacies ■ Conveyancing ■ News
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Contents 4 5
Introduction List of Officers President’s Review
Middlesex Events – Professional Issues
ADVERTISING AND FEATURES EDITOR
INTERPRETING YOUR NEEDS The Pitfalls of Money Laundering in Conveyancing
Fresh outing for established law L&T Act 1954 Cracking the codes – part 1 Introduction to Unexplained Wealth Orders A View from the Top -
STUDIO MANAGER John Barry
ACCOUNTS Joanne Casey
MEDIA No. 1588
EDITORIAL COMMITTEE Miles Sriharan Maralyn Hutchinson Professor Malcolm Davies Zulfiqar Ali Meerza
Articles 14 16
This Too Will Pass Helping YOU find cancer care in YOU area
April 2019 © The Middlesex Law Society - Benham Publishing
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All change (again!) For the SRA Accounts Rules
A love that lasts forever A call to all Will Writer’s
Commercial Development: Opening up Brownfield Land Opportunity
Free Wills/ Legacies
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“Save Time with GCS Online” How Millenials are reshaping the conveyancing sector Flood searches are more important than ever due to climate change
Property Insurance 28
Unoccupied Property Insurance – We include all of the Covers Required, as Standard
The cover image: The Pitfalls of Money Laundering in Conveyancing
The benefits and disadvantages of AI to accounting and law firms
Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.
18 Autumn 2019 Issue
New SRA rules – the problem with ‘guidance’
Book Review Anyone wishing to advertise or submit editorial for publication in The Bill of Middlesex please contact Anna Woodhams before copy deadline. Email:
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The Rise and Fall of Legal Aid
The BILL of MIDDLESEX 3
OFFICERS COMMITTEE MEMBERS
PAST PRESIDENTS R Garrod, J A S Nicholls, R C Politeyan, J Aylett, K Goodacre,
OFFICERS FOR 2018/19
H J B Cockshutt, W Gillham, L Lane Heardman, D Grove,
L A Darke, C Beety, L E Vickers, H Hodge, E G B Taylor,
A A M Wheatley, A H Kurtz, M J S Doran, H B Matthissen,
223 The Broadway, Southall UB1 1ND
G Parkinson, HHJ R D Connor, A Bates, J J Copeman-Hill,
(020 8843 9974) (DX 119583 Southall 3) President:
D B Kennett-Brown, S B Hammett, F A Shakespear, HHJ P E Copley, A M Harvey, H R Hodge, G R Stephenson, B S Regler, W J C Berry, AS Atchison, L M Oliver, S W Booth,
D D P Debidin, R E J Hansom, E H Lock, A Taylor, N Desor, Sriharans Solicitors
Professor Malcolm Davies
223 The Broadway, Southall UB1 1ND
Retired Professor, University of West London Law School
M Fernandes, A Darlington, S Chhokar, M Crowley,
(020 8843 9974) (DX 119583 Southall 3)
c/o Oxford and Cambridge Club
M Davies, S Hobbs, R Sriharan, S Scott Hunt, D Webb,
71 Pall Mall, SW1 5HD
G Kharaud, A Sriharan
M Hutchinson, M Guyer, R S Drepaul, A Sriharan,
(020 7930 5151) e-mail: email@example.com Vice President:
Lecturer in Law/ Legal Practice, University of West London
223 The Broadway, Southall UB1 1ND
St Mary’s Road, Ealing W5 5RF
(020 8843 9974) (DX 119583 Southall 3)
(020 8231 2403)
Maralyn Hutchinson of Kagan Moss
MAURICE GUYER Vickers & Co. 183 Uxbridge Road, Ealing W13 9AA
22 The Causeway, Teddington, Middx TW11 0HF (020 8977 6633) (DX 35250 Teddington) e-mail: firstname.lastname@example.org
(020 8579 2559) (DX 5104 Ealing) e-mail: email@example.com
Renuka Sriharan of Sriharans 223 The Broadway, Southall UB1 1ND
ELISABETH VAN DER WEIT
(020 8843 9974) (DX 119583 Southall 3) e-mail: firstname.lastname@example.org
Hameed & Co.
Susan Scott-Hunt 4 Grand Parade, Forty Avenue, Wembley Park, HA9 9JS Principal Lecturer in Law, Middlesex University (020 8904 4900) The Burroughs, Hendon NW4 4BT e-mail: email@example.com
(020 8411 6019) Email: firstname.lastname@example.org
Council Members for the Middlesex Area: Central & South Middlesex
Michael Garson of Kagan Moss 22 The Causeway, Teddington TW11 0HF
Zulfiqar Ali Meerza of Serious Fraud Office (SFO) 2 – 4 Cockspur Street, London SW17 5BS (020 7084 4890) e-mail: email@example.com
(020 8977 6633) (DX 35250 Teddington) e-mail: firstname.lastname@example.org
Zahra Asghar of Asghar & Co 112-114 The Broadway, Southall UB1 1QT
Central & South Middlesex
(020 8843 0010) (DX 119576)
Sundeep Bhatia of
Beaumonde Law Practice Pentax House, South Hill Avenue, Northolt Road,
Caroline Golden of Goldens Solicitors
Harrow HA2 0DU
343 Rayners Lane, Pinner HA5 5EN
(020 8868 1614)
(020 8429 8282) (DX 48006 Rayners Lane)
www.middlesex-law.co.uk 4 The BILL of MIDDLESEX
President’s Review A CALL TO ACTION
2019 marks the centenary of the passing of the Sex Disqualification (Removal) Act 1919. This legislation was passed following the case of Bebb v The Law Society (1914 ) in which the Court of Appeal decided the entire sex of women did not fall within the definition ‘persons’ and could not be admitted as lawyers. The 1919 legislation reversed that ruling making it official that women were in fact ‘persons ‘ and could therefore join the legal profession, and become jurors and magistrates.
On 5 March 2019 I attended an event in the House of Lords on “Women in the Law and in Parliament.” The event was chaired by Baroness Ann Jenkins. Speeches were made by Baroness Shami Chakrabarti as well as four women MPs. Lucy Frazer MP provided an inspiring anecdote about her grandmother who, having married and given birth to her children, in the 1950’s decided she wanted to become a lawyer. The grandmother faced the double jeopardy of age and sex discrimination but was undaunted.
There is currently a project underway called the First 100 Years Project*which maps the trials, tribulations and successes of women in the law. This has compiled a timeline of firsts for women in the legal profession. Clearly the women who have achieved firsts in the legal profession are to be admired for their determination, intelligence and as inspirational role models. But despite women being elevated to the heady status of ‘persons’ by the 1919 Act, I have been struck by how long it has taken women to move forward in the legal profession.
Baroness Chakrabarti described herself as a grumpy older woman who was fed up waiting for gender equality, including equal pay and had come to the conclusion that action needed to be taken (targeted and time limited). It was suggested such action could take the form of positive action aimed at gender equality and supported by statutory enforcement. Personally I am conflicted on the issue of positive action but I can certainly identify with the impatience engendered waiting for gender balance.
The history of many of the important firsts for women in the law is more recent than one might think:
Apart from the social and moral efficacy of equality of the genders, diversity makes business sense. Studies have shown that companies which are gender diverse have a 15% increased profitability compared to their competitors.
• 1972 - Dame Rose Heilbron became the first woman judge to sit at the Old Bailey. • 1974 -Barbara Calvert became the first female head of Chambers. Her chambers was referred to as the ‘monstrous regimen of women’. • 1991 - Baroness Patricia Scotland was the first black woman to be appointed a QC . She was later appointed as the first woman Attorney General of England and Wales in 2007. • 1992 - Nicola Davies became the first female Welsh QC. The first female Judge in Scotland was not appointed until as late as 2003. • 2014 - Sonya Leydecker became the first female CEO of a leading law firm.
I call on all women and men in the legal profession both leaders and aspiring leaders to be audacious in their approach to gender equality, collaborate and recognise the opportunities that are open to all.
Alberta Tevie President, Middlesex Law Society
• 2016 – only 3 years ago did an Employment Appeal Tribunal have a woman president when Ingrid Simler was appointed. I then find myself asking the inevitable question -have things really changed over the years? Although there has been some change because here I am a black woman writing this column as the President of the Middlesex Law Society. However, the centenary of the 1919 legislation has brought into sharp focus just how much more needs to be done by both men and women to create an equal footing for both genders in the legal profession. The BILL of MIDDLESEX 5
MIDDLESEX EVENTS – PROFESSIONAL ISSUES
INTERPRETING YOUR NEEDS Reading the President’s Review section in the Last Bill of Middlesex highlighted the ever-evolving and challenging context in which solicitors operate. Consequently, the last thing you need to contend with are barriers to communicating complex information that can have lifechanging implications for your client.
ut that is exactly what many of you do face. With the largest number of immigration practitioners in SE England, your constituency’s need for high-quality interpreting services is clear.
writing in advance. Most importantly, arrange for them to arrive in time to review any last details and ensure you are both clear on your roles, responsibilities and what you are there to achieve.
Regrettably, there also still remains a persistent use of non-registered interpreters – who are unqualified, inexperienced and aren’t bound by professional standards – in some quarters including the UK courts. While costsaving is often the argument levelled for engaging them, this doesn’t stand up given the amount of time and money reportedly lost which can result. Worse still, there have been instances of miscarriages of justice involving the use The National Register is free to search via of non-registered interpreters. It was just NRPSI’s website (www.nrpsi.org.uk). You can search this online database comprising such a case that led to the establishment around 1,800 interpreting professionals, who of NRPSI in 1994 – some 25 years ago between them speak more than 100 different this year. That is why NRPSI is focused on achieving languages, by language and postcode. statutory regulation of the PSI profession All Registered Interpreters have had their and mandatory registration of all PSI credentials checked and meet our strict professionals. We feel passionate about entry criteria in terms of their qualifications, ensuring that the public services have the experience and security clearance. All carry a photo ID card that should be presented at professional interpreters they need to support them in their work, and believe the start of any assignment. They are statutory regulation is the best way to recognised as the ‘gold standard’ of achieve this going forward. In the meantime, interpreters. Indeed, in a recent survey of though, please help us to help you by the users of the National Register, 92% of ensuring that every interpreter you work with respondents claimed to be very or quite is NRPSI registered. satisfied with their services (only 44% That is where we, the National Register of Public Service Interpreters (NRPSI), can help. We are the voluntary regulator of the UK’s public service interpreting (PSI) profession and a not-for-profit. We maintain PSI standards by managing the National Register, setting the professional principles that all Registered Interpreters must adhere to, and investigating any complaints concerning a Registered Interpreter’s professional conduct.
reported the same level of satisfaction with the services of non-registered interpreters)*.
6 The BILL of MIDDLESEX
Despite such high satisfaction levels, things do occasionally go wrong. Recent analysis of NRPSI complaints data shows that most disputes arise from poor communication between the interpreter and the client. To get the best from an interpreter, always ensure that they are fully briefed. When time allows, agree dates, times, fees, and the extent and nature of the assignment in
By Ted Sangster CHAIRMAN, NRPSI
MIDDLESEX EVENTS – PROFESSIONAL ISSUES
The Pitfalls of Money Laundering in conveyancing Money Laundering issues have substantially increased in property transactions at all law firms regardless of size and has a significant impact on those dealing with property matters.
ssues arise from illegal activities such as drug trafficking, firearms sales and gambling activities. Many organised criminals are targeting the legal market to launder crime proceeds of crime in order to legitimise illicit monies. In reality billions of pounds criminally derived are laundered through financial institutions. Basically, this is a process of money placement where the proceeds of crime monies introduced in the financial systems are then layered in a source which is disguised, followed by a stage of integration where the laundered money is introduced as legitimate money. The Anti -Money Laundering Regulations 2017, also known as Money Laundering, Terrorist Financing and Transfer of Funds Regulations 2017 came into force on 26th June 2017 which transferred the 4th EU AML directive into UK law. This replaced the Money Laundering Regulations 2007 (MLR 2007) and the Transfer of Funds (Information on the Payer) Regulations 2007 which were in force before the new rules. As the numbers of money laundering crime s increase, the government tightens the rules for the betterment and interest of economic, people and country. The new rules give potentially easier customer due diligence, simplified due diligence and enhanced due diligence access to register of the beneficial owners. They enable solicitors to verify a client’s identity, check the source of funds and understand the transactions effectively. How does this help professionals and law firms? Does the problem arise from an individual, professional body or organised crime? According to the Solicitors Regulation Authority (SRA) there has been a 67% rise in money laundering reports in 2016, with 60 in the first quarter of 2018. This should be a wake-up call for all firms dealing with larger sum property transactions. Moreover, the penalties in place for non-compliance include fines of up to £1million and prison sentences from two to seven years. Despite the
introductions of the new rules and regulations, the number of cases are gradually increasing year on year. Arguably one should blame cyber-crime as a source or bridge in assisting the organised crimes to launder their illicit monies through financial sectors to legitimise their funds as this provides a greater scope for the criminals. This has enhanced the opportunity for them to monitor or hack online banking or ecommerce of high end individuals or firms dealing with larger sums transactions. Organised crime cannot operate without the help of professionals. They need someone reliable and knowledgeable to assist them to make arrangements to obtain illegal access to legal firms systems and to run data interference. There are solicitors at times who become involved in the money laundering issues either knowingly or unwittingly as high end amounts are involved. Cybercrime is an additional threat for conveyancers in their routine transactions making it even worse for them to identify the fraudster or scammers. With instances of hacking email and provision of false information in order to divert funds. Since the UK national risk assessment found that law firms are high risks target and customer due diligence process and their policies were weak, so the new regulations will bring more scrutiny to processes at law firms. Checklist: • familiarisation with MLR 2017 • review and revision of AML written risk assessments • review and revision of AML policies and procedures • planning training for front line staff conducting AML
By Tamilmoli Letchmanan Solicitor, Sriharans Solicitors
The BILL of MIDDLESEX 7
Fresh outing for established law L&T Act 1954 The right intention to redevelop under the Landlord and Tenant Act 1954 a fresh twist on established law.
rofessional advisers will be familiar with the qualified right to lease renewal most business tenants have enjoyed for over half a century under the Landlord and Tenant Act 1954 (the Act). Typically this enables a tenant to agree a new lease when a landlord serves notice to bring the existing lease to an end on the contractual date or later. It includes the ability for either party to activate their renewal rights by serving a notice. In a market where rents are falling the process is commonly triggered by a tenant’s notice where a tenant is holding over at a high rent. The statutory right of the tenant to a new tenancy, is subject to grounds for refusal which the landlord can rely upon as set out (a) – (g) in Section 30(1) of the Act. For landlords who wish to take back possession of premises for their own use or to demolish or develop premises they can prepare their plans for the end of the tenancy and oppose a new grant upon the grounds provided in section 30 (1) (f) and (g) of the Act. The wording of the provisions is strictly applied by the courts and often hotly contested; motivation for the litigation is not usually in issue. The grounds for refusal set out in S30(1)(f) (Ground F) are that: ‘on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work or construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding."
8 The BILL of MIDDLESEX
It is well known that the landlord must have a settled intent if the landlord wishes to take back the premises and it is the intention at the date of the hearing of the case that counts. In the long established authority of Betty’s Cafés Limited v Phillips Furniture Stores Limited 1959 AC 20, the court found that the landlord’s intention to redevelop must be shown to exist at the date of the
hearing rather than at the date of serving of notice. This has been confirmed recently when it was unsuccessfully argued that the date might mean that of an interim hearing before trial. (Hough v Greathall Limited 2015 EWCA Civ 23) The all important state of mind was described in Cunliffe v Goodman  KB 237, 253 where Asquith LJ ruled: "An 'intention' to my mind connotes a state of affairs which the party 'intending' – I will call him X – does more than merely contemplate. It connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. Not merely is the term 'intention' unsatisfied if the person professing it has too many hurdles to overcome, or too little control of events. It is equally inappropriate if at the material date that person is in effect not deciding to proceed but feeling his way and reserving his decision until he shall be in possession of financial data sufficient to enable him to determine whether the project will be commercially worthwhile." In the recent Supreme Court decision of S Franses Ltd v The Cavendish Hotel (London) Ltd  UKSC 62 the spotlight returned to the question of ‘intention’ on rather unusual facts. The case concerned high value corner premises in Jermyn Street in the St James’s area of London. The tenant, a textile dealership and consultancy occupied the ground floor and basement and the rest of the building was occupied and managed by the landlord, as a hotel. The tenant was holding over on an underlease for a 25-year term from 1989 and trading under the permitted user of a retail art gallery, showroom and archive. Planning permission was required for any material change of use and neither party had obtained any relevant new planning consent.
The tenant served a request for a new lease under s26 of the Act which the landlord opposed under Ground F, (not ground G) arguing that it wished to carry out a scheme for major alterations and for that purpose required possession. The landlord prepared a number of schemes and the third of these was presented at court. It involved internal alterations that avoided the need for planning consent and changes to layout and ceiling height to create internal retail units to incorporate the leased premises into the hotel. It was not an issue before the court whether the works were sufficiently substantial to meet the statutory requirements. The findings of fact made in the Central London County Court by Saggerson J were crucial and were adopted on appeal to the High Court. There the finding of Jay J was that the landlord “has been transparently candid about the Landlord's motives in devising Scheme 3 which she accepts has been designed with the material intention of undertaking works that would lead to the eviction of the Tenant regardless of the works' commercial or practical utility and irrespective of the expense. However, the underlying motive is irrelevant unless it be such that it undermines the protestation of the Landlord that it has a genuine and settled intention to proceed." The tenant contended that the Landlord's current intention was conditional on the termination of the current tenancy and accepted that if the Landlord obtained vacant possession from the tenant voluntarily, then Scheme 3 would not have been adopted. So it was submitted the whole project, was an elaborate charade. This was not accepted as the court did ‘not regard the fact that in other non-applicable circumstances, or on a counterfactual landscape, the Landlord would have made different decisions, as vitiating its present intention.’ The tenant then appealed to the Supreme Court with approval to leapfrog the Court of Appeal. There the tenant was successful and the unanimous decision of the court was given by Sumption LJ. His summary was that it was accepted by the landlord that the proposed scheme of works was “designed with the material intention of undertaking works that would lead to the eviction of the tenant regardless of the works’ commercial or practical utility and irrespective of the expense”. The landlord’s third scheme: (i) omitted external works which would have required planning permission and (ii) added more extensive internal works, many of which were objectively useless. The estimated cost of the works to the landlord was £776,707 (excluding VAT), plus £324,000 in statutory compensation. It was common ground that the proposed works had no practical utility other than eviction. The opinion of the court was that the landlord’s intention to carry out the works cannot be conditional on whether the tenant chooses to assert his claim to a new tenancy. The intention to demolish or reconstruct the premises must exist independently of the tenant’s statutory claim to a new tenancy. On the facts, the tenant’s possession of the premises did not obstruct the landlord’s intended works because the landlord did not intend to carry them out if the tenant persuaded the court that the works could reasonably be carried out while he remained in possession. The entire value of the proposed scheme lay in removing the tenant and not in any benefit to be derived from reconstruction itself. Therefore in coming to a view on landlord intention, the landlord’s motive or purpose, whilst not directly relevant in itself, may be evidence of (i) his genuine intention to carry out the proposed
works and (ii) the conditional character of that intention. Similarly, a lack of utility of works may allow an inference as to the conditional character of the landlord’s intention. However disguised, this decision adds another string to the challenges tenants can mount when resisting landlord claims. This result also reinforces some well known points for advice to clients. • Tenants may look to at the objective reasonableness of the proposals and whether the stated objectives of the landlord could be achieved by an alternative scheme. Where the proposed works have no practical utility and had been designed purely for the purpose of satisfying ground F then the landlord’s case will in future fail. • As the landlord’s intention to carry out the works could not be conditional on whether the tenant chose to assert a claim to new tenancy and persist in making a claim the test was therefore whether the landlord would intend to do the same works even if the tenant had left the premises voluntarily. • Tenants can look to section 31A of the Act that looks at a situation where the works could reasonably be carried out by exercising a right of entry that the tenant is willing to include in the terms of the tenancy. • Where a landlord genuinely intends to take back possession for demolition or redevelopment of the premises then it is well known that preparation must be made in good time; similarly when considering ground G for taking back premises for own use. • Considering what planning applications need to be made and what scheme of development is viable will take time and money. The landlord may be pressed to provide an undertaking to the court that the planned scheme will be carried out. And if the claim for repossession is successful then statutory compensation according to rateable value will have to be paid. The difficulties a landlord has to overcome may be circumvented where possible by contracting a business tenancy out of the protection of the Act, although that could give rise to a lower valuation for the current passing rent. Also in the S Franses case the narrow user terms of the lease may have inhibited the rent value on renewal and trapped value that the landlord wished to unlock. The principles established in the leading case of O’May v City of London Real Property Co Ltd 1983 HL AC 726 remain an obstacle to changing terms to favour the landlord on a standard renewal. There was no discussion of these issues by the court and yet one might speculate that there may have been less costly ways to achieve a result favourable to the parties through expert professional advisers. Whilst every case may be contested and will initially turn on its facts suggesting a high degree of uncertainty this decision shows that at least in the highest court in the land the law can reach a result that reinforces common sense.
Michael Garson Council Member
The BILL of MIDDLESEX 9
Cracking the codes – part 1 Michael Garson is a partner of Kagan Moss & Co, a member of the Law Society Council and Board, chair of the Professional Standards and Ethics Committee and member of the Professional Indemnity Insurance Committees and Property Section executive committee.
Major regulatory change is on the horizon this November. Michael Garson looks at what the Solicitors Regulation Authority’s new codes will mean for high street practices their clients, and the competitive environment.
rrangements to implement the Solicitors Regulation Authority (SRA) ‘Looking to the Future’ reform programme will be introduced in November one year after they were approved by the Legal Services Board (LSB). The 2011 SRA Handbook will be replaced with a new approach to the SRA Principles, and, by replacement of the 2011 SRA Code of Conduct with two sets of new SRA Standards and Regulations – one for all individual solicitors, registered European lawyers and registered foreign lawyers (SRI), and one for firms (SRF) – as well as new SRA Accounts Rules. All references to sections are to the new SRI, unless otherwise stated. All rules are available in their current draft from the SRA website at https://www.sra.org.uk/sra/news/press/standar ds-regulations-start-date-2019.page. The new Authorisation of Firms Rules and Authorisation of Individuals Regulations enable solicitors to practise within a regulated entity or as self-employed sole practitioners (freelancers), without being authorised as an entity, or to be employed by organisations operating outside the regulation of the SRA under the Legal Services Act 2007. The SRA is also making some adjustments to the SRA Compensation Fund and professional indemnity insurance (PII) arrangements, but their wider reforms are not yet been taken forward for approval by the SRA Board. This means they will not be introduced until after the changes already approved for this year.
10 The BILL of MIDDLESEX
There are two key questions for property practitioners.
Freelancers will be able to offer all types of legal services including reserved activities (as detailed in schedule 2 of the Legal Services Act 2008), and solicitors employed in an unregulated body will be permitted to offer nonreserved activities but not reserved ones. How might the development of such bodies impact on clients and traditional high street work? Second, the 2011 Handbook has been rewritten and much reduced in length: the SRA Code of Conduct 2011 contained 12 chapters with 93 outcomes plus indicative behaviours; this has been reduced to eight sections in the SRI and nine sections in the SRF. The new codes are less prescriptive, with fewer explicit directions as to what solicitors must do to comply with the Principles and new standards. Many of the familiar required outcomes are not reproduced (though a few new Standards have been added), and the detail of the indicative behaviours is removed. Does this mean the burden of compliance will be reduced for practitioners? New reporting obligations are still in process of being formulated and will be the subject of a separate article .
The effect on clients and the competitive environment Under the new rules, businesses in the unregulated sector will not need to obtain SRA authorisation to deliver non-reserved legal activities, and will be able to employ practising solicitors. This will not require approval of ownership or business structure, or appointment of compliance officers or reporting accountant, as would be necessary for authorisation as an alternative business
Although all solicitors must ‘ensure that clients understand the regulatory protections available to them’ (RS 8.11), this will be hard to monitor in the absence of any form of prescribed notification. This seems to run the risk of an increase in complaints to the Legal Ombudsman and also other types of claim, some of which may turn out to be uninsured and result in damage to the collective reputation of the solicitors’ profession. The automatic protection previously The SRA’s objective, supported by the LSB, is to encourage more offered by the solicitor title is diluted and regulators are aware that competition in service delivery, and satisfy an ‘unmet need’ for legal services, through greater flexibility and increased innovation with more risks are being taken in this. All provisions in the codes are subject to SRA monitoring and enforcement, but whether resources will be digital services. The SRA asserts that solicitors will improve the sufficient to be effective is open to question. standards of non-regulated businesses. structure. Solicitors working in such organisations are expected to offer will-writing services, employment advice, and administration of estates, thus increasing competition for high street firms offering those services alongside conveyancing. Although conveyancing remains a reserved activity, the flow of clients to high street firms may, over time, be disrupted for this area too.
The SRA Transparency Rules introduced on 6 December 2018, require regulated firms and freelancers to publish price and regulatory information, but do not apply to unregulated firms with which they compete. They are able to advertise services free from constraints and can employ solicitors for non-reserved activities including two categories of work where prices must be published by firms (administration of estates and employment tribunal representation).
The burden of compliance
To answer the question about the burden of compliance, we need to look in detail at the new regulations. The standards in the new handbook rest upon 7 rather than 10 Principles, with operational responsibilities transferred to the two new sets of Standards and Regulations. Inevitably, with brevity and subtle changes comes a degree of uncertainty, thereby making SRA guidance necessary, to The Transparency Rules also introduced a digital badge for display on assist both experienced solicitors and new entrants. law firms’ websites, which will show online visitors that the firm is Part Two of this article follows in the next Bill of Middlesex. regulated and though not visually apparent provides them with a link through to information on the protections this provides. This Michael Garson development recognises but does not deal credibly with the obvious Solicitor, Law Society Council Member Central and South Middlesex confusion to the public, who will find it hard to distinguish the differing levels of protection from solicitors acting from within firms or as freelancers, as contrasted with those employed by non-regulated businesses, whose clients will have no protection from the SRA Compensation Fund, minimum terms and conditions or SRA Accounts Rules.
Middlesex Law Society Tuesday 30 April 8.00 ± 10.30am
Sponsored by Thames Water
Spring Compliance Workshop Michael Garson, Council Member and chair of Law Society Professional Standards and Ethics Committee will lead the discussion on: x x x x
New SRA 2019 Standards and Regulations Reporting requirements and new SRA Enforcement policy Risks and issues for Compliance Officers Risks and Choices for freelancers and employed solicitors
At Finchley Golf Club North London, Nether Court, Frith Lane, NW7 1PU Free Parking Light Breakfast served from 7.30am Presentation and discussion until 10.30am Admission £25 for members and £75 for non-members to include membership subscription. To reserve a place, send payment by cheque to Middlesex Law Society to: The Secretary MLS, Vickers & Co., 183 Uxbridge Road Ealing London W13 9AA DX 5104 Ealing For further information email email@example.com or contact the Administrator Yasmin Taib-Sharaz on 07958 264555 The BILL of MIDDLESEX 11
Introduction to Unexplained Wealth Orders O
The Criminal Finances Act 2017 has been one of the most recent introduction of laws within the criminal legal landscape. It represents the largest overhaul of the UK's anti-money laundering regime in more than a decade and the largest expansion of corporate criminal liability since the Bribery Act 2010.
12 The BILL of MIDDLESEX
ne of the key powers of the Act is the use of Unexplained Wealth Orders (UWOs) as a tool to recover property using the civil proceedings under Part 5 of the Proceeds of Crime Act 2002. A UWO is an order granted by the High Court at the request of an enforcement authority, relating to specific property. For a UWO to be granted, the Court must be satisfied that: 1. The respondent holds property with a value greater than £50,000; 2. There are reasonable grounds for suspecting that the respondent's lawful income is insufficient to enable them to have the obtained property; and 3. The respondent is a non-EEA politically exposed person (PEP) or involved in serious crime (UK or foreign) or connected person. If granted, the UWO requires the respondent to explain their interest in the property, explain how they obtained the property (in particular how it was paid for) and provide any additional information. IIf the respondent fails to comply with the UWO, without reasonable excuse, then the property is presumed recoverable for civil recovery proceedings. If, however, the respondent complies with the UWO, then the enforcement authority has a 60 day period within which to decide what further steps to take in relation to the property. If a freezing order is in place in relation to the property – to prevent the risk of any subsequent attempts to recover the property as the proceeds of crime being frustrated – and no further action is taken by the enforcement authority in relation to the property, then the High Court must be informed as soon as practicable in order for the freezing injunction to be lifted. The primary purpose of a UWO is to expose and recover illicit wealth, and the information obtained from the UWO can be used 'in any legal proceedings' apart from criminal proceedings against the respondent (exception being in cases of perjury).
Interestingly enough, despite the protection against self-incrimination in criminal proceedings, the information supplied as part of a UWO could potentially be used against the individual in regulatory proceedings, as well as a wider investigative tool in financial crime cases. UWOs also have an extensive international reach and UK enforcement authorities may also seek assistance from foreign authorities to enforce a UWO. The use of UWOs has attracted some criticism in a legal context, in that the UWOs reverse the burden of proof within English criminal law and mean that the accused must now prove their innocence. Furthermore, the limitations as to who can be subject to UWOs (PEPs with questionable assets) are the very limitations that may cause problems for enforcement authorities pursuing UWOs i.e. those persons subject to a UWO are those most able to defend themselves against one. Nevertheless, there is clear political support for the use of UWOs and even though at this stage it is too early to tell how successful they will be, they have at least got off to a positive start with the decision of the High Court in October 2018 to dismiss a challenge to an Order urging the wife of a former banker accused of fraud in a foreign country to disclose how she could afford £22 million ($28.5 million) in UK property.
Zulfiqar Ali Meerza Lawyer at the Serious Fraud Office (SFO)
Please note that this article has been written by the author in a personal capacity and not for or on behalf of the SFO.
A View from the Top – the inaugural Middlesex University Prof. Brenda Barrett lecture
A bleak blustery and thoroughly wet February day was lit up by a sparkling lecture delivered by Baroness Brenda Hale on the life of a Lady Law Lord.
t was the inaugural Professor Brenda Barrett lecture at Middlesex University School of Law and did more than extol the achievements of bearers of the name Brenda! Lady Hale provided a sweep of the history of her early education and career, progressing from the bar on and through the Law Commission to the judiciary. She has achievements as an author and scholar as well as an architect of family law legislation. Lady Hale now sits as a law lord and is the President of the Supreme Court at the head of the UK judiciary proudly housed at the Middlesex Guildhall. Examples were given of the kind of cases that the Supreme Court deals with as well the other activities that Lords carry out across with country to stay in touch with community activity. Understandably, Lady Hale was proud to relate the advancement of family law which now ranks alongside the more established divisions of the court and with greater judicial recognition than in the past. The promotion of an additional two female judges to the highest appeal court begins to address an imbalance at the higher levels of the judiciary and whilst Baroness Hale does not feel that she has been particularly disadvantaged, she is clearly fully cognisant of the numerous imbalances for women that remain inbuilt in education and work opportunities. With a particularly light touch the packed audience hung on very word of the tale of the recent Supreme Court decision in a criminal law matter. This was the Punto Banco gambling case at Croxford (R v Ivey 2017 UKSC 67) in which the long-standing Ghosh test for dishonesty was changed –with continuing repercussions. The story telling skills of a university lecturer could not mask the novelty to the senior judiciary of gathering necessary technical insight - none admitted to any specialist prior knowledge. The implications of the new approach are evident from recent cases resulting in harsh outcomes for mistakes by solicitors. In the recent appeal of 3 disciplinary cases to the Administrative Court, Flaux LJ found no exceptional circumstances to excuse solicitors from the strike off that will nearly always be a consequence of a finding of dishonesty. Although Solicitors Regulation Authority v James, and Macgregor and Naylor 2018 EWHC 3058 (Admin) involved the
activities of relatively junior members of the profession who it could be said should have known better, they were found to be subject to pressures which are to be deplored and that responsible firms and senior professionals should prevent and take measures to avoid. The courts might have reason to revisit the decision and find mitigation for dishonesty where greater responsibility should perhaps rest with experienced leaders. The audience of mostly students but also practising lawyers and teachers of law were riveted by the discussion of Brexit in the Article 50 notice case, at least in part because of the media publicity vilifying the judges as enemies of the people at the High Court stage. There was more sober reporting at the Supreme Court stage and at least this might be attributed partially to the fact that the proceedings were broadcast. It is not commonly appreciated that all Supreme Court cases are recorded and available live and on video and that written and video case summaries are available too. It is to be hoped that in the not too distant future this increasing accessibility of the law may be further improved and rolled out to other senior courts. It is worth mentioning also that reliable and approved judgments for courts and tribunals are speedily available as a free service from British and Irish Legal Information Institute www.bailii.org . This organisation is a charity that relies upon voluntary annual subscriptions to continue to provide its vital resource to students and to the legal profession. Occasions such as Baroness Hale’s lecture will remain long in the memory and can only be of enduring benefit where senior practitioners of the law meet not just those who will take up a professional career in legal practice but others who will graduate to be future citizens of our society and the world.
Michael Garson Council Member Law Society Trustee of BAILLI
The BILL of MIDDLESEX 13
This Too Will Pass Photo: Paul Gilbert
“This Too Will Pass” is a new book by Richard Martin describing his personal struggle with anxiety and depression.
n the last few years it would be impossible to be unaware of issues of well-being and mental health. We are all lucky that there is more understanding, more resources and more acceptance than perhaps at any time before. However if we have made such good progress why do we need yet another book? I am certain that this is not just “another book” and my hope is that you will read it, change because of it, and then recommend that others read it so that they may change too. In some respects Richard’s story is not so remarkable Professional man suffers burn out, gets therapy and recovers – but Richard’s story is absolutely compelling. The autobiographical style is raw, honest, funny, human, real, charming, emotional, sad and hopeful. The narrative draws you in, it is both comfortable and unsettling at the same time, it informs but never lectures and it provides a space to think deeply, but not to dwell helplessly. Richard writes beautifully and if you know him already you know he is a lovely man; however a beautifully written book by a nice man, may still not be a reason enough to buy it, so let me say this one thing to try and persuade you. We are all vulnerable and we all love people who are vulnerable too. Despite there being more awareness now than ever before, we are still in the foothills of understanding with a mountain to climb. If you are not sure how precious and fragile your mental health might be, or the mental health of people you care about; if you are not sure where to look to know more, or how to start the conversation with friends or colleagues or loved ones; and if you need something real and not theoretical to help clarify your own thoughts, then please, please read this book. A remarkable man, a compelling story and truly important contribution to one of the most important issues of our time.
Paul Gilbert LBC Wise Counsel is a leading and hugely respected coach, mentor and adviser to the in-house legal profession
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Helping YOU find cancer care services in YOUR area Unsure about cancer support and advice services in your area? You’re not alone.
ew research has revealed that people in London aren’t aware of what support services are available to help them after a cancer diagnosis. For example, over half of people living in the region weren’t aware of emotional support services, such as talking therapy or support groups, while nearly three quarters also weren’t sure about the availability of practical or financial support in their region. However, a new resource is now available to help. Charity Dimbleby Cancer Care has recently launched the cancercaremap.org, an interactive directory that can help you find local support services. Developed over the past year, the map features everything from NHS centres, charity and community led groups to local businesses offering special discounts. “Five years ago, a friend asked me to find cancer services for his wife. I realised very quickly that this was frighteningly difficult to do, and that there was no comprehensive resource to help me,” explains Jonathan Dimbleby chair of Dimbleby Cancer Care and creator of the map. “We wanted to create our own site to ensure that nobody facing cancer, goes without the care they need; all you would need is an internet connection and a postcode.” You can find out more about the map, or let the team know if there’s a service in your area you would like to add, here: cancercaremap.org,
16 The BILL of MIDDLESEX
When is an asset search needed? Is there a situation in which it is justified not to do an Asset Search on a probate matter? If there is a will, you need to be sure that all assets have been identified and distributed; but this is also true where there is no will to be found.
ealistically, you can never be certain about what assets your client actually holds until you have undertaken a thorough and comprehensive search. This applies equally whether a will already refers to multiple accounts and shareholdings, or if your client seems to be a less fortunate elderly person in a home, or in sheltered housing with no sign of any assets at all. What is to say that some of a wealthy clientâ€™s shares didnâ€™t fall by the wayside on a share conversion or when the building society became a bank? How can you tell if, whilst in sheltered housing, your clientâ€™s forgotten high yield savings account hasnâ€™t been accruing a healthy interest? Many solicitors currently approach asset tracing as an additional service to seek out in those circumstances in which there have been whispers of a particularly broad portfolio of accounts and/or shareholdings, or perhaps when there is evidence of a property having recently been disposed of prior to a clientâ€™s death, but the funds do not show in the most recent current account statement. There are many circumstances where a client may not have updated their address with the bank or closed an account upon opening a new one, and this is exactly why there is such a need to ensure that assets have not been forgotten or missed. An executorâ€™s duties, as defined by s25 of the Administration of Estates Act 1925, include a duty of care to collect all of a deceasedâ€™s assets and to pay all liabilities. However, there are few firms offering a single search bringing together dormant bank accounts, shares, the Land Registry, postal redirections and even credit searching; Fraser and Fraser claims to have
the only comprehensive service on the market. â€œIt is surprising how often we find assets which no one else â€“ the solicitor, the family or the home â€“ knew about, and with so many categories of assets possible, it is hardly news that something might go amiss to even the most organised Testator or solicitor. All you have to do is fill in one simple form with as much information as you have at your disposal and leave the rest to usâ€?, says Neil Fraser, a partner at Fraser and Fraser. â€œHaving had the contacts established already for our own work, it made sense to open this service up to all solicitors, not just those we are working with. We are confident that there is no one else on the market offering quite the same coverage â€“ and we look forward to sharing the knowledgeâ€?. At a time when beneficiaries are increasingly keen to ensure full value is extracted from their inheritance or to hold someone liable for a failure to do so, it would be reasonable to consider making commissioning a comprehensive asset trace a habitual part of the probate routine. It stands to reason that ensuring that all the assets brought together for a probate, really does mean that all of the assets have been identified and located, and this should become a standard part of administrating an estate; and in the case of a will, a quick search might ensure that all of a Testatorâ€™s property is successfully allocated, without leaving any partial intestacies or other surprises lurking later on. For further information about Asset Search, contact Fraser and Fraser on 020 7832 1400 or email firstname.lastname@example.org
Research and E Estate Administration n Services 50 years of providing specialist research and estate administration support services. 7UDFLQJPLVVLQJEHQHČ´FLDULHVLVWKHKHDUWRIRXUEXVLQHVV7KURXJKH[SHUWNQRZOHGJHDQGZLWKLQWHUQDWLRQDOFRQQHFWLRQVZH FDQČ´QGWKHPLVVLQJQH[WRINLQDQGDVVLVWZLWKDOODVSHFWVRIHVWDWHDGPLQLVWUDWLRQZLWKVSHHGDQGDFFXUDF\ Contact us today to see how Fraser and Fraser can assist you.
fraserandfraser.co.uk or call: 0207 832 1400
The BILL of MIDDLESEX 17
All change (again!) for the SRA Accounts Rules Where the SRA Accounts Rules are concerned, law firms are no strangers to change. The past few years have brought several phased changes including to the format of accountants’ reports, role of the reporting accountant and exemptions for firms requiring an accountant.
n a continued concerted effort to simplify and modernise the legal system, the SRA is once again making changes to the rules with the current draft being just 7 pages long and containing only 13 rules. This is a significant departure from the existing 52 rules, several appendices and 80 pages. With July 2019 being touted as a potential implementation date, there’s no time to lose in getting prepared for the new rules. That’s why here we’re going to cover the why, when, what and how…
Why the need for change? As already intimated, it’s all about simplification but retaining an essential emphasis on protecting client monies. The SRA’s intention is to allow legal practices greater flexibility over how they operate, the ability to judge independently and make legal services more accessible to the public. To quote Paul Philip, SRA Chief Executive: “Our reforms focus on what matters: the high professional standards that offer real public protection rather than unnecessary bureaucracy that generates costs, constrains firms and hinders access to legal services. We believe that the changes will make it easier for firms and solicitors to do business and to meet the needs of those who need their services.”
5. Guidance notes, if made available, will be separate, not attached to the rules, and released any time. 6. There’s no definition of office money. This means it’s either client monies or not client monies. 7. There’s no distinction between professional and nonprofessional disbursements. Plus, fees and disbursements can only be paid when a bill is raised. 8. Monies incoming from the Legal Aid Agency are no longer covered in the rules. This money can be held in the office account in future. 9. Bank accounts must still be reconciled every 5 weeks. This requirement has been extended to client’s own accounts or “passbooks”. 10. Although the exemption limits for accountants’ reports are unchanged, definitions of statements or passbook balances has changed and includes joint or client’s own accounts. As a result, firms currently exempt may not be exempt.
How can you prepare for change? Ahead of implementation, the SRA will provide much-needed further clarification on these important changes and empower legal practices to prepare accordingly.
In simple terms, if you’re compliant with the current rules, complying with the new rules will be relatively easy. It could be a Can’t say fairer than that. So, while the short term may cause you straightforward case of stating the new rules in your policies. An some pain as you begin to adopt the new rules, unless your internal audit is advisable too. A few minor tweaks to procedures existing set up already meets the new requirements, in the long here and there may be all that’s needed. At this review stage, term you’ll be able to manage your accounts and run your define “promptly”, document your systems and controls, and business in a less prescriptive way. ensure everyone is aware of your processes – your cashiers, When do the new rules come into force? COFA, new starters and reporting accountants. Guidance notes are likely to be circulated before the rules If you’ve been considering outsourcing your cashiering, these become mandatory. These notes will act as a toolkit. No official new rules are the ideal time to do so. By outsourcing your date has been set for either document – guidance notes and accounts function to specialists in the field, such as Quill, your accounts rules – but July is predicted for the latter. supplier keeps abreast of ever-changing solicitors’ accounts rules so you don’t have to. Become a Quill client and we’ll What are the main changes? manage your accounts in a compliant and timely manner, while At a glance, the 10 primary points of difference from the old to you focus on other pressing business matters. new rules are:1. Its much-abridged format means each of the remaining 13 rules are considerably condensed. 2. With no time deadlines, you’ve got the freedom to decide your own timeframes. 3. Following on from #1 and #2, the new rules are principle based rather than prescriptive and contain less definitions. Interpret how you wish and do what’s reasonable. 4. A notable addition is the ability to use a third-party managed account as an alternative to the traditional client account.
18 The BILL of MIDDLESEX
To find out more on Quill, please visit www.quill.co.uk/outsourced-legal-cashiering, email email@example.com or call 0161 236 2910. To check the current status of the new SRA Accounts Rules and possible supporting guidance notes, go to www.sra.org.uk. By Julian Bryan Managing Director, Quill
FREESW ECTION ILLS/ LEGACIES HEADER
A love that lasts forever Every year, we care for around 15,000 dogs at our 20 rehoming centres across the UK. It’s only with the help of our wonderful supporters that we can give these dogs the love, care and attention they deserve while finding them the right home.
their married life rescuing and caring for neglected and unwanted dogs.
A third of our funds come from gifts included in supporters Wills. One such supporter, Dr Thomas Preston, has very kindly pledged to leave a legacy to Dogs Trust in his Will. He and his beloved wife, Pat spent 40 years of
Pat had always had a strong bond with dogs, having lived with them for much of her life. She couldn’t bear to see them injured or illtreated. Sadly she passed away in 2014, leaving behind Tom and her darling dogs. It was their shared belief that every dog deserves a long, happy life that led to her making the incredibly generous decision to leave us a gift in her Will. Dogs Trust promises to never put down a healthy dog. Please help us keep this promise by considering leaving us a gift in your will.
oviding expert veterinary care, specialist rehabilitation equipment and training facilities doesn’t come cheap. Not to mention all the vital everyday necessities like food, bedding and heating. Dogs Trust receives no government funding, which means we wouldn’t be able to run our 20 state-of-the-art rehoming centres without the generous donations from our supporters.
The BILL of MIDDLESEX 19
FREE WILLS/ LEGACIES
A call to all Will Writer’s T Pic: L-R Matthew Brennan and Ken Brennan (My Paper Vault)
My Paper Vault has a way to enhance your offering to your clients. The following case study of Byrne Memorial Library highlights a few key issues that we can resolve on your behalf.
he Byrne Memorial Library was built in the 1950’s and had a capacity for 100 000 volumes of literature. By 2002 the capacity was at 171 000 books and the overflow was affecting the staff and the books were becoming damaged because the library was unable to store them in the correct manner. “Books were piled on top of each other, held at the circulation desk waiting for room, and stored on windowsills and in stairwells. Books were so tightly jammed in the stacks that some were damaged when pulling them off the shelf”, Mark Vagas described. Initially the library tried using the available space better, by replacing old prints with newer reprints, but this did not resolve the issue, it just replaced one book with another. The library could not simply remove books, because they could not decide on what should stay or go and there was pressure from the student body not to destroy any of the volumes. The library employed a new director who proposed off-site storage. The files were catalogued and barcoded to find them if needed and the volumes were packaged up for safe keeping and stored well above the standards set about by the university. The storage came with internet access so the library could access and catalogue any file they required at any time. The cost was primarily covered by making the process of storing information on microfilm redundant. This process of rethinking the way the library stored their files saved them money, reduced the damage to the files themselves, and improved morale in the workplace. My Paper Vault is a way of storing your client’s Wills and related documents. Our online storage lets your clients access all their documents held in storage with us. To see the full service we offer, please visit www.mypapervault.co.uk or call our office on 01252 759846. The case study reference is https://journals.tdl.org/llm/index.php/llm/article/viewFile/15 12/792
The MyPaperVault Team
20 The BILL of MIDDLESEX
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Environmental | Flood | Ground Stability | Energy & Infrastructure
Grid Reference: E: 123456 | N: 123456
Professional Opinion 1.ENVIRONMENTAL
4.ENERGY & INFRASTRUCTURE
No further recommendations
No further recommendations
No further recommendations
4.20 Power Stations
Air Quality Index: Some Polluted Areas (See 1.25)
This page should always be read in conjunction with the full report. The Professional Opinion indicates the potential risks and any other potential issues associated with the property. The results should be disclosed to client and/or lender and/or insurer as appropriate. A ‘Pass’ is given if no potential property specific risk has been identified. A ‘Pass with Considerations’ is given where there are potential hazards in the locality to bear in mind, or if there are features nearby which some clients might consider could affect them. A ‘Further Action’ is given if there is a potential property specific risk and a further action is advised.
In the event of a request to review the Professional Opinion based on additional information, or if there are any technical queries, the professional advisor who ordered the report should contact us at firstname.lastname@example.org, or call us on 01732 755 180.
Regulated by RICS If you re require assistance, please contact your Search Provider or alternatively contact FCI directly with your Report ID. Tel: 01732 755 180 | Email: email@example.com | Web: www.futureclimateinfo.com
Commercial Development: Opening up Brownfield Land Opportunity The Government has announced new funding to speed up the house building process, aiming to overcome the roadblocks from potential contamination on brownfield land.
Chris Taylor, from Future Climate Info, is one of only a small number of SiLCs (Specialists in Land Condition) in the UK. He provides an assessment on how this renewed focus on brownfield incentives will extend to commercial property due diligence. What funds have been announced? Barclays Bank has announced that they are working in partnership with the Government to offer finance to small and medium-sized housing developers. The £1 billion Housing Delivery Fund aims to support developers to make confident choices on site viability. Homes England, which is committing £125m to the funding pot, will administer the scheme and provide funding between £5m and £100m for new homes, including social housing, retirement living and apartments to rent. The funds form part of the promise to deliver 300,000 homes a year by the mid-2020s. In addition, the £1.3 billion Land Assembly Fund will be also used to acquire land that needs work and prepare it for the market. The £630 million Small Sites Fund is designed to get the right infrastructure in place to help public landowners and local authorities that are struggling to build on land in their area. Approaching Brownfield with More Confidence James Brokenshire, the new Housing Minister, recognises that developers face many perceived obstacles when it comes to seeking permission to develop on brownfield sites. The aim is to de-risk the viability concerns from potential historic contamination. Brownfield Land has been a priority in land use zoning by Local planning Authorities (LPAs) for a number of years, but it has been boosted by reinforced guidance within the revised National Planning Policy Framework (NPPF) earlier this year. There are strong economic and social arguments for revitalising urban centres and placing higher density affordable dwellings for residents that can walk to work or use public transport to minimise traffic and pollution loads on cities. These initiatives are all to be welcomed, as they prevent sprawl and make good use of sites that can often be over-hyped in terms of their potential contaminative risk. With renewed funding vigour, commercial property lawyers and their developer or investor clients, should approach site viability on the basis of what can be achieved, rather than what can’t.
Combining Risk Data with Solutions This means an even handed approach to land quality due diligence ahead of site acquisition to fully understand a site’s historic use. But it also means a realistic assessment of how significant any contaminative risk really is, its proximity to sensitive receptors and the level of remedial work which may be necessary. A combination of desktop risk assessment and options for more detailed investigation including soil testing and gas monitoring is a good starting point. However, as sites get more complex, contaminated land insurance can be used to provide greater certainty to the transaction, helping the client to make an informed decision. In the event, that remediation is required, some companies can now use data and insurance to provide fixed fees, thus taking the uncertainty away from open ended contracts. We know that Government funding will not be a blank cheque for remediation, whatever the situation. Developers need assurance that other mechanisms like tailored contaminated land insurance, built on specific site risk assessment, is there to support when they them when they need it. Future Climate Info’s commercial environmental reports provide a comprehensive, yet concise and clear assessment of site history, potential for contamination and, as a result, follow-on options for more detailed testing or insurance provision. There are very few SILCs (Specialist in Land Condition) in the UK, but property professional including commercial property lawyers and their clients may find direct access to this expertise invaluable in unlocking the true potential of brownfield sites. The Government is seeking imaginative solutions to overcome obstacles in the planning and financing of brownfield projects. We are all about matching this with easy, intelligent commercial environmental risk solutions that keep the transaction going and provide support to unlock funding and planning consent quicker. For more information on Future Climate Info’s Commercial Environmental Risk Reports, Site Survey and Insurance Solutions, visit www.futureclimateinfo.com contact us on 01732 755 180 or email us at firstname.lastname@example.org
The BILL of MIDDLESEX 23
“Save Time with GCS Online” For over 20 years, Guaranteed Conveyancing Solutions (GCS) has been the pioneer of ‘Instant Issue’ legal indemnity insurance for Residential and Commercial properties.
‘Instant Issue’ means exactly that: legal indemnity insurance that can be issued directly by conveyancing professionals to their clients WITHOUT the need to refer and thus, saving conveyancers time and the need to wait for responses. Cover is granted immediately without delay. Our extensive range of policies can be issued instantly via our market leading insurance ‘Pack’ and / or our quick and simple to use ‘GCS Online’ system. All policy covers are comprehensively worded and with competitive premiums reflecting full and not limited coverage. GCS Online gives you the ability to obtain quotes in seconds without the need to register. However, once completing our easy registration process, legal indemnity insurance policies can be issued by conveyancers in a matter of minutes.
Users of GCS Online have 24/7 access to their personal account whereby they can browse and issue policies and / or save quotes for later use. All policy documentation, including IPIDs, key facts and confirmation of orders are electronically sent straightaway. Whether you decide to use our ‘Pack’ or ‘GCS Online’ system, you can be assured that all GCS policies are comprehensively worded and supported by highly experienced and friendly underwriters who are keen to help all conveyancers to help their clients. To find out more about GCS Online and to set up your FREE, no-obligation account, please visit www.gcsonline.gcs-title.co.uk. Alternatively, visit https://gcs-title.co.uk/orderpack to order your own personal GCS Insurance Pack. ■
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How Millennials are reshaping the conveyancing sector There’s a wave of change happening within the conveyancing sector at present. From regulatory changes and technological advancements to a new generation of home movers and conveyancers, things are looking a little different in the industry.
recently read an article from Valerie Holmes reflecting on the conveyancing sector. One point she made really resonated, and that was the industry heading toward a skills shortage, specifically a shortage of conveyancers. We are on the cusp of a major shift for the industry attributed primarily to a new age workforce, and the habits of the clients they are servicing, but firms need to employ the right tools to appeal to a new generation of conveyancer. By 2020, millennials will form 50% of the global workforce, and these numbers are also reflected by the modern home mover. The Financial Times reported first-time buyers made up 51% of the market in 2018, and the average first-time buyer is now 31. This very generation, synonymous with taking technology and rapid advancement in their stride, will be influential in evolving both the consumer and business sides. So, how do firms address this new era? It begins with what millennials expect in employment. Despite the ideals Silicon Valley start-ups have made us believe, they aren’t only looking for free breakfast, slides in the office and yoga retreats. As digital natives, millennials are early adopters of new technologies and implement these daily to make menial tasks more efficient. Whether that’s booking appointments with their doctor via an app or preparing for the day by asking their voice assistant for the weather forecast, they’ve come to expect solutions facilitated by technology. These expectations have carried into their working lives and the focus from firms must be on providing products and solutions that meet these expectations, both for their millennial employees and customers. Particularly in a procedure heavy industry like conveyancing, great technology can mitigate many of the frustrations that arise from inefficient processes and can make the industry more attractive to a new generation of conveyancers, while retaining them for years to come. A recent report from the SRA has recognised that artificial intelligence will
not replace staff in firms, but instead free up solicitors’ time to focus on the more enjoyable aspects of their role; guiding people through the biggest, and often most stressful, purchase of their lives. The enjoyment of using said technologies doesn’t end with the solicitor, the benefits can also be experienced by the end user; the home mover. Providing access to complete compulsory home-moving forms via an online portal will exponentially improve the client experience. When everything else they do is accessible online, they don’t want to wait to action elements of their home moving process by post. And that is just one example, there are many areas of conveyancing that can be improved by the introduction of technology, I am sure you can think of a few immediately. Millennials are already the majority of firsttime buyers, and soon they will be the majority of our workforce and the next generation will be even more digitally lead. They will utilise technology to their advantage to better communicate and build relationships with their customers. There will always be a place for human-tohuman service, it’s just about harnessing technology to better facilitate more time to achieve it. Providing this generation with the right tools to generate positive user and customer experiences will ensure the skill of conveyancing is not a lost art and overall align the home moving process with the digital age. ■
Adam Bullion General Manager of Marketing, InfoTrack
The BILL of MIDDLESEX 25
The knowledge you need, the service you value.
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Geodesys. All you need to know. Call 0800 085 8050 Email firstname.lastname@example.org
Flood searches more important than ever due to climate change In these days of digitised property information, conveyancers have a wide choice of search reports at their fingertips when considering how to best identify risk for their client’s chosen property.
hat is surprising, however, is that only about 29% of orders placed with Geodesys include a full flood assessment, meaning a large proportion of homebuyers are unaware of potential flood risk. With a growing population, increased demand for housing, ageing infrastructure and severe impacts on climate change, flooding is a significant problem which will inevitably threaten more communities across the UK. Ranging in impact from minor inconvenience to major disruption, every year millions of UK homes, businesses and people are affected by floods. According to the latest information from the Environment Agency, the UK currently has 5.9 million properties at risk of flooding, equating to one in six homes being at risk – an increase of 400,000 properties since 2013. Put into monetary figures, the statistics are even more startling with the effects of flooding and managing flood risk costing the UK approximately £2.2bn a year. Conveyancers have a vital role in informing their clients about the possibility of flooding to ensure they understand the potential risks and are armed with the right information to take steps to mitigate them ahead of the transaction. Home buyers need to be aware that flooding can happen anywhere, even if a property is not next to the sea or a river. There are many different types which property purchasers should be made aware of, including surface water flooding, river flooding, drain and sewer flooding, coastal flooding and
flash floods. All have potential to wreak havoc on a homebuyer’s property and life. In recent years, floods have made the headlines on several occasions. Statistics from the Met Office revealed December 2015 as the wettest month ever recorded in the UK, with almost double the average rain fall due to temperatures 4.1c higher than normal. Amazingly, although homeowners tend to have both insurance and warning systems in place to protect themselves against fire and burglary, very few take steps to reduce the chances of their property being flooded. This is rather concerning given that the average cost to rectify flood damage stands at £28,000 compared to the average £7,200 to fix fire damage, and £1,000 on resolving damage after a burglary. When advising clients conveyancers should look for a residential property search that provides a full assessment on the different types of flooding, plus information on insurability. For information on sewer flooding conveyancers should refer to the CON29DW Drainage and Water report, which is also an essential part of the conveyancing process. Geodesys offers a number of flood searches and the CON29DW, providing conveyancers with sound knowledge of any flood risks to their client, enabling them to make better, informed decisions about their purchase before proceeding further. To find out more visit: http://www.geodesys.com. By Jonny Davey Product Manager at Geodesys
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Unoccupied Property Insurance â€“ We Include all of the Covers Required, as Standard Weâ€™ve tailored our Unoccupied Property Insurance to fit perfectly with the requirements of solicitors, executors, powers of attorney or deputies.
e work with law firms and private client solicitors, as well as organisations such as STEP, SFE, Professional Conferences and various regional Law Societies, to make sure our product works perfectly for those who use it, and provides the best cover available for unoccupied properties. Due to our involvement with our legal contacts, weâ€™re aware of what makes things easier for solicitors when it comes to protecting their clientsâ€™ assets. As the home is often the most valuable part of the estate, it makes sense to be sure that itâ€™s as protected as possible, especially in the period of unoccupancy during probate and estate administration. We include a wide range of covers for unoccupied properties in all of our standard premiums. This means thereâ€™s no need for adding optional extras for covers that may increase the premium, and the client isnâ€™t paying for covers that donâ€™t apply to an unoccupied property. Some of our covers that are particularly notable include; Theft, Malicious Damage, Storm, Flood and Subsidence, as well as Falling Trees, Lampposts or Telephone Poles. We include all of these most commonly claimed for risks, including Escape of Water and Full Accidental Damage cover.
We include all of our covers with ÂŁ1,000,000 Buildings cover and ÂŁ10,000 Contents cover, included for free, within our standard premium. This means thereâ€™s less chance of underinsurance, as long as these sums are adequate for the property and contents, and contents can be increased. Plus, as we include all of the above covers and much more, thereâ€™s also no forgetting to add covers that may be required, should something happen. All of the properties we cover come with the added features of: â€˘ No excess to pay on any claims with us â€˘ Excellent customer service team on hand to help with any queries â€˘ Pro-rata returns on all 9 and 12 month policies â€˘ Credit accounts and a Business Development Executive for solicitors, to insure all of your clientsâ€™ properties, in one place, with one provider â€˘ No inspection requirements Get in touch with our team for more information, by calling 0800 015 2211, or emailing: email@example.com. As always, terms and conditions apply, and you can view all of our policy documents and more information regarding our product and services online, at: www.unoccupieddirect.co.uk. â–
Thereâ€™s no inspection requirement :LWKRXU8QRFFXSLHG 3URSHUW\,QVXUDQFHZH donâ€™t require anybody to visit the home.
VISIT www.unoccupieddirect.co.uk Unoccupied Direct is a trading name of Unoccupied Direct Limited. Unoccupied Direct Limited is authorised and regulated by the Financial Conduct Authority. Firm Reference Number: 797627. 5HJLVWHUHG2IĂ€FH7KH:DOEURRN%XLOGLQJ:DOEURRN/RQGRQ(&1$: :5HJLVWHUHGLQ(QJODQG :DOHV&RPSDQ\1XPEHU8QRFFXSLHG'LUHFW/LPLWHGLVSDUWRIWKH*DOODJKHUJURXS of companies.
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The benefits and disadvantages of AI to accounting and law firms The UK’s top law and accountancy firms are now investing heavily in AI (Artificial Intelligence), demonstrating the huge potential and game-changing nature these developments will bring to both professions.
rogress has snowballed since the first industrial revolution, with the internet instrumental in shaping our society more than any single invention. The ability to instantaneously share and consume information has amplified the pace of technological breakthroughs. The fourth industrial revolution: an era defined by automation.
However, the use of AI technology is now under the UK tax spotlight as HMRC is concerned about the shrinking tax base: “If the work is being done by robots rather than people, should they be taxed too?” With AI further infiltrating our everyday working lives, the information gap between firms and its clients will become smaller and we will soon be able to use AI to predict what a customer wants before they ask for it. In the future, we believe it must be ‘human plus machine, not machine minus human’. Applied artificial intelligence is the future of business: an asset and an opportunity that enterprises must embrace!
Definition of AI: The capability of a machine to imitate intelligent human behaviour.
By Alan Rajah partner at Lawrence Grant Chartered Accountants
You are probably already using some form of AI in your firm to drive communication, productivity and efficiency, automating job functions that require repeated manual input. However, for all its benefits, AI projects are often costly and can come with security and privacy concerns. Whilst AI may not have fully integrated itself into the day-to-day running of your business, it doesn’t mean that it won’t become a vital tool to help relieve some of your most labour-intensive responsibilities. Tasks that can be solved within two to three seconds are likely be automated either now or within the next two years. AI-powered software can help legal support professionals to conduct due diligence more efficiently and with more accuracy, since this work is often time consuming for humans. AI can help with contract review and management, analysing contracts in bulk, allowing solicitors to take on higher-level tasks such as advising clients, negotiating deals and appearing in court. AI even has the capability of analysing data to help it make predictions about the outcomes of legal proceedings better than humans. Deloitte claims that its document review technology has helped reduce the time spent on reviewing contracts, invoices and financial statements by at least 50%. JPMorgan Chase uses NLP (Natural Language Processing) software to reduce the total time spent refining 12,000 loan contracts from 360,000 hours to just a few seconds. By 2020, it is expected that accounting tasks, including audits, payroll, tax and banking, will be fully automated. AI will create 2.3 million jobs, whilst at the same time eliminating 1.8 million jobs. According to Deloitte, 100,000 legal roles will be automated by 2036. By 2020, law firms will be faced with a ‘tipping point’, believing innovation is the key to transforming the legal and accountancy professions.
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New SRA rules – the problem with ‘guidance’ I
We know that the new SRA rule book (‘Standards and Regulations’) will be with us sometime this year, probably the Spring.
t will be massively slimmed-down and simplified, with two separate codes of conduct for individuals and firms. However, the main substance of the conduct rules is largely unchanged. The format of the new rulebook is the next logical step in the drive towards principles based regulation. PBR is polarising: you either love it for the flexibility of interpretation, or hate it because of the inherent lack of certainty. Although it is an impressive feat of pruning and editing, the regulator’s obsession with reducing pages necessarily means losing all incorporated guidance. The SRA says that it intends to publish a whole suite of new guidance (e.g. ethics guidance, checklists, case studies, toolkits and videos) to accompany the rules, which will sit outside the rules. This could cause practical headaches. Firstly, our search for ‘the truth’ will be more of a challenge. We will have to look in multiple locations for the right answer. It will also be less certain - how will we know we have found all of the relevant guidance? For example, the 14-day rule in the current Accounts Rules is going. Great news, on the face of it. But what if the SRA issues guidance that money earmarked for costs should be transferred within 14 days?
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You could take the view that it’s just guidance, and so not mandatory. But would you really want to argue that position to an SRA investigator, or tribunal? If the guidance sets the SRA’s expectations, then firms will be reluctant to depart from that. In effect, creating a de facto rule.
Most solicitors will want to check whether there is a corresponding piece of guidance to a rule. Does that mean trawling through entire toolkits? How do we know that something pertinent is not hiding somewhere at the end of a webinar? Have you missed an important tweet on the topic? The SRA may also decide to amend guidance at a moment’s notice, and since it is not a rule change, it can entirely sidestep the consultation process. So we'll always have to keep up to speed with guidance changes. And perhaps print or save anything of particular use, in case it disappears. Separate guidance that look like rules will make things much less certain for practitioners. By Jonathon Bray Jonathon Bray advises law firms on risk management and compliance, and helps ABSs get authorised www.jonathonbray.com
Bringing together all your commercial requirements
Conveyancing can be complex and even more so when looking at commercial transactions. Thames Water Property Searches endeavour to make this process as seamless as possible, whether it’s: • Acquisitions • Commercial leases, or • Development We aim to keep you informed along the way, assisting you in solving the problems as they may appear. appear.
Consumable art with Christopher Cooper
Short of sniffing a Seurat, hugging a Henry Moore or answering the lobster telephone; opening the last wine of an era or tasting a dead winemaker's final vintage are as close to consumable art as it gets. Never have we been so generously furnished with such a wide variety of worldly wines as we are now that collectors and consumers are looking beyond the standard and the tried & tested, to now look for that new and unique experience... tasting a piece of history that won't ever be repeated, and won't ever taste like this ever again. The new era of consumable art is upon us, and its coming to London with Chiswick Auctions announcing a new drinks line-up to help modernise its wine & spirits business. The talented Sam Hellyer has been brought on board as head of department, with the innovative Christopher Cooper of Drinkonomics joining him as a specialist to help modernise collectable wine & spirits. Aiming to attract a more consumer-led clientele alongside the more traditional wine collector, Sam and Christopher have been carefully reshaping the department to broaden its appeal and its function; with everyday wine buyers now increasingly attracted to feeling the thrill of the auction for a more unique purchase rather than buying wines from leading independent wine merchants, via wine apps or through wine club subscriptions. Its a trend that will only grow as consumers increasingly look for unique personal fulfilment experiences, and at Chiswick Auctions, that trend is starting with a lot of new ideas for a lot of new lots. Whilst continuing to offer the more traditional auction-able blue-chip Bordeaux and Burgundies, Chiswick Auctions are moving into offering attractive 'restaurant quality' wines with the decadent air of accessible luxury. “By buying into an artist's consumable creation, you're tasting a piece of history that won't ever be tasted like this, ever again” says Christopher. “And if we do taste it again... it'll be different. So right now, that wine is a unique snapshot of the evolution of that wine, the environmental conditions of that one growing year, and the creativity of a talented winemaker.”
Drinking fine wine such as this gives the consumer a unique window into this creative artist's thought process that year. So ultimately, what you've got in your glass is a piece of history... a consumable piece of artwork. With many exciting, unusual and creative lots being added to the sale on a weekly basis; excitement in the next sale is growing with current highlights including limited edition Growers' Champagnes, Lynch Bages, Gruaud Larose, DRC, a Jeroboam of Bollinger RD 2000 and some rather interesting whisky. With the shift in wine collecting tipping more towards personal enjoyment rather than for investment, Chiswick Auctions are excited to be leading the trend towards affordable and everyday consumable luxuries, whatever your price. The world of fine wine is broadening outside of the ubiquitous appellations of France, Spain and Italy; with Australia, New Zealand, Argentina and the USA all leading the charge for new and investable, high-end luxury liquids. Even China's getting in on the act!?! “So, if its out there, and people want to drink it or collect it, we'll get it” adds Cooper. As consumer buying trends lead the auction market, changes at Chiswick Auctions have resulted in the departments now leading these trends; with high-end modern lifestyle trappings and consumables being actively sourced by each team of specialists. Yet Chiswick Auctions maintains that its the company's trademark personal touch with both vendor and buyer that continues to remain constant; as is the case in the Wine & Spirits department, where Sam and Christopher provide bespoke advice on cellar management, valuation, investment and laying down; whilst delivering expertise on what is currently drinking well right now and what will be the future classics. Chiswick Auctions wine and spirits department currently holds four wine auctions throughout the year at its headquarters in west London, with the next Wine & Spirits sale taking place on June 11th.
Probate, Insurance & Estate Valuation Service Providing a professional and discreet service to executors, trust companies, legal representatives and private individuals • • • • •
Tailored service to meet your specific needs All valuations are handled by a Director or Senior Valuer A competitive and clear fee structure Complete house clearance if required All-encompassing service with a breadth of expertise including jewellery, fine art, silver, watches, wine & spirits
For enquiries contact: firstname.lastname@example.org +44 (0)20 8992 4442 | chiswickauctions.co.uk 1 Colville Road, London W3 8BL The BILL of MIDDLESEX 33
Twenty Second & Twenty Third chapters in the series of extracts from the...
The Rise and Fall of Legal Aid By Alured Darlington “I truly hope this book is published - there was a time when everybody was entitled to be represented and put forward their defence, innocent until proved guilty. Without legal aid to give clients the representation everyone deserves, what will become of our society? I honestly dread to think. This book will be a reminder of the ‘good old days’ and an insight to young ones into the legal aid system as it was and how it should remain” Foreward by Jean Brathwaite, Legal Secretary
Chapter Twenty Two
The new sentencing guidelines
he new guidelines have imposed more onerous duties on defence solicitors. In her article “When is a courier not a mule” (Journal of Criminal Law 2012 76 JCL 444 to 445). university law lecturer Janet Loveless rightly observes that ‘it is now incumbent on defence solicitors to provide sentencing judges as full a picture as possible of background circumstances so that both role and mitigating circumstances of drug couriers can be properly assessed. It has to be recognised that many couriers do not disclose their circumstances in the earlier stages of the judicial process because of disorientation, shame, the need to protect others who were under threat or lack of trust. (Sentencing Council Research interviews at pages 4 to 6). It is therefore vital that defence solicitors are aware of these matters and find ways to address them so as to assist courts to arrive at more proportionate sentences than before’. This is quoted in full because sadly mitigation is not always being structured round the new Drug Sentencing Guidelines sometimes with disastrous results. An error in the category or role of a drug courier
can result in years being added to, or reduced from, a sentence. For their part Sentencing Judges should be alert not only to place cases involving hardship to dependants lower in the sentencing range but also in cases of sufficient hardship to place them in a different category altogether as they are entitled to do. (Drug Sentencing Guideline page 7) – “In some cases having considered these factors it may be appropriate to move outside the category range”. In R v Mildred de Leon the Court of Appeal 30 January 2013 EWCA Crim 196 the Court of Appeal was prepared to accept, with the benefit of new information, that the defendant’s role should have been ‘lesser’ rather than ‘significant’ resulting in a substantial reduction of sentence. I would respectfully submit that fairness dictates that the Sentencing Court should always consider this when faced with a defendant from an overseas country without social security provision being sentenced when there is no one available to look after their children or other close dependant relative.
Chapter Twenty Three
Sole or primary carer for dependent relatives
he above wording is now incorporated as one of the statutory mitigating factors reducing seriousness or reflecting personal mitigation in a number of recent guidelines, assault, burglary , drugs and fraud, (though not sexual offences). In the light of this the overarching guideline of principles effecting seriousness (mitigating factors in the assessment of culpability and harm) issued in 2004 could now be extended by inclusion of these words so as to apply to all guidelines, and not just recent ones. Consideration of this factor must now be one of the most important features of a defence solicitor’s job when preparing mitigation for a court sentence.
Failure to be able to care for dependent relatives, particularly children, hits defendants very hard, and even more so when the defendant comes from an undeveloped country where there is no social security, social services or other safety net. Of course in the majority of cases the family will be able to make provision, albeit at a reduced level, but there remains a significant majority where this does not, or cannot, happen. The defendants in such cases will not only be serving their sentences for their offences but they are sometimes punished further by having to ‘witness a death sentence’ on their nearest and dearest where they are powerless to help. Effectively such defendants are being sentenced twice for the same offence. See also R v Petherwick 2012 ‘EWCA Crim 2214 as to the application of Article 8 of the ECHR to this issue’.
...other pages will be published in the forthcoming Bill of Middlesex or if you can’t wait, go online: http://issuu.com/benham/docs/the-rise-and-fall-of-legal-aid
34 The BILL of MIDDLESEX
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The latest official magazine for the Middlesex Law Society.