MIDDLESEX The BILL of
The Official Journal of THE MIDDLESEX LAW SOCIETY
Presidential Year Plan 2018/19 (See Pages 10-12)
Middlesex Law Society Conference June 2018 – Future of the High Street - Survival and renewal (See Page 17)
Inside this issue:
■ Free Wills Month ■ Conveyancing ■ Probate ■ GDPR
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MEDIA No. 1585
PUBLISHED April 2018 - © Bill of Middlesex Benham Publishing
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10 DISCLAIMER The Middlesex Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation. All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.
Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.
COVER INFORMATION The cover image: Christina Blacklaws Current Vice-President of the Law Society of England and Wales.
Autumn 28th September 2018 Spring 22nd March 2019 Anyone wishing to advertise or submit editorial for publication in the Bill of Middlesex please contact Anna Woodhams, before copy deadline.
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INTRODUCTION EDITOR’S COLUMN NEWS COUNCIL MEMBERS EVENTS ARTICLE FREE WILLS MONTH 24 CONVEYANCING 27 PROBATE 28 GDPR
29 SOFTWARE 30 ANTI-MONEY LAUNDERING 33 AUCTIONS 34 BOOK REVIEW The BILL of MIDDLESEX 3
PAST PRESIDENTS R Garrod, J A S Nicholls, R C Politeyan, J Aylett,
OFFICERS FOR 2017/18 President:
D Grove, L A Darke, C Beety, Mrs L E Vickers, H Hodge,
Fort & Co. Solicitors
E G B Taylor, A A M Wheatley, A H Kurtz, M J S Doran,
Saunders House, 52-53 The Mall, Ealing W5 3TA
H B Matthissen, G Parkinson, HHJ R D Connor,
(020 170 8433) (DX 5119 Ealing)
A Bates, J J Copeman-Hill, D B Kennett-Brown,
ARIYA SRIHARAN Sriharans Solicitors 223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3) e-mail: firstname.lastname@example.org
W J C Berry, AS Atchison, L M Oliver,
Beaumonde Law Practice
S W Booth, D D P Debidin, R E J Hansom, E H Lock,
Pentax House, South Hill Avenue, Northolt Road, Harrow Middlesex HA2 0DU (020 8868 1614)
Honorary Treasurer: ELISABETH VAN DER WEIT
Mrs A Taylor, Mrs N Desor, Ms M Hutchinson, M Guyer, R S Drepaul, A Sriharan, Ms M Fernandes A Darlington, S Chhokar, Ms M Crowley, Professor M Davies,S Hobbs, Mrs R Sriharan, Mrs S Scott Hunt, D Webb, G Kharaud
Vickers & Co. 183 Uxbridge Road, Ealing W13 9AA
S B Hammett, Miss F A Shakespear, HHJ P E Copley, A M Harvey, H R Hodge, G R Stephenson, B S Regler,
(020 8579 2559) (DX 5104 Ealing)
K Goodacre, H J B Cockshutt, W Gillham, L Lane Heardman,
Professor Malcolm Davies Head of Ealing Law School
University of West London
St. Marys Road, Ealing W 5RF (020 8231 2226) e-mail: email@example.com
Hameed & Co. 4 Grand Parade, Forty Avenue, Wembley Park, HA9 9JS
Maria Fernandes of Fernandes Vaz Solicitors
(020 8904 4900)
87 Wembley Hill Road, Wembley Middx HA9 8BU
(020 873 30123) e-mail: firstname.lastname@example.org
Honorary Social Secretary: DAVE. P. DEBIDIN Debidins Solicitors 47 Mount Park Road, Ealing W5 2RS (020 8567 1381/6343) (DX 5105 Ealing) e-mail: email@example.com
Stephen Hodgson Lecturer in Law, Ealing Law School University of West London St Marys Road, Ealing W5 5RF (020 8231 2406)
Honorary Membership Secretary:
SUSAN SCOTT-HUNT Principal Lecturer in Law, Middlesex University The Burroughs, Hendon NW4 4BT
Maralyn Hutchinson of Kagan Moss 22 The Causeway, Teddington, Middx TW11 0HF
(020 8411 6019) e-mail: firstname.lastname@example.org
(020 8977 6633) (DX 35250 Teddington) e-mail: email@example.com
Council Members for the Middlesex Area: Central & South Middlesex
Zulfiqar Ali Meerza of Serious Fraud Office (SFO)
Michael Garson of
2 â&#x20AC;&#x201C; 4 Cockspur Street, London SW17 5BS
(020 7084 4890)
22 The Causeway, Teddington TW11 0HF
(020 8977 6633) (DX 35250 Teddington) e-mail: firstname.lastname@example.org
North Middlesex Michael Singleton of Singletons Austin Ryder
Miles Sriharan of Sriharans Solicitors 223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3) e-mail: email@example.com
2 Crossfield Chambers, Gladbeck Way, Enfield EN2 7HT (020 8367 0387) (DX 90604 Enfield)
Renuka Sriharan of Sriharans
223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3)
Regional Manager, The Law Society Greater London Regional Office, The Law Society,
Alberta Tevie of Sriharans Solicitors
113 Chancery Lane, London WC2A 1PL
223 The Broadway, Southall UB1 1ND
(020 7316 5554) (DX 56 London/Chancery Lane)
(020 8843 9974) (DX 119583 Southall 3)
4 The BILL of MIDDLESEX
Are we destroying ourselves and our Profession? Is the market to be flooded in the manner that UK and USA steel markets are being undermined by China?
e have to persuade the Law Society’s Council, new main Board and the SRA to re-evaluate our Profession. It is their duty and also, in the public interest to deliver betterment of standards by any members of our Profession, held out to the public as Solicitors of England and Wales. When standards are dropped and markets are awash with assortments of product it is not certain that prices will reduce but it is sure that workers will lose their jobs and be unable to work as they would wish.
Having identified this, the President of the United States of America is taking action to save steel workers and is also raising the quality of steel produced in the USA. One may wonder why I make this comparison.
industry and government. There are currently about 6-7000 candidates each year looking for Training Contracts. When that requirement is swept away and replaced with an 'opportunity for relevant work experience these young people may well be admitted into the profession. The training institutions will of course find another way to make money when the LPC goes in 2020 by offering 'crammer courses for the new SQE so candidates they do now. But the difference will be that they have a badge at the end of it – even though that badge may be worth less! The important issue now is that the SQE should be of a high standard in line with that of the Bar Standards Board. I come from the generation who passed the ‘Solicitors Finals Exam’ in order to qualify as a solicitor. That exam was controlled and conducted by the Law Society. Giving up that control has led to an erosion in standards and an increase in numbers.
Are we producing and admitting more solicitors in England and Wales than the public needs? Is there really unmet need as the Legal Services Board and SRA keep telling us? Some may disagree with my views stating that they are We know that services are sorely needed by those It is our duty to constrain social mobility. That is insulting to a who cannot afford to pay but government has cut protect aspiring profession that has been shown to be open and legal aid to shreds. Can the system really keep young candidates inclusive to anyone who meets the standards the public producing solicitors and provide work enabling from false hope rightly expect from us. Lose that and the rule of law will them to maintain the respect and recognition of the disappear too. This objective is welcoming and open to and from being rule of law both locally and internationally? I look at those with the ability to contribute. There are brilliant exploited by poor the Bar Council and the Bar Standard Boards. brains in all parts of society and we want the best in the They are not only maintaining rigorous standards training bodies solicitors' profession. but also maintain the number of Barristers called to driven by profit. It is our duty to protect aspiring young candidates from the Bar each year at a sustainable level for the false hope and from being exploited by poor training bodies work. This may be termed ‘protectionism’ but if it maintains the driven by profit. There are too many people spending too much rule of law and respect for the law it is the right thing to do. If the money in order to become solicitors. Bar can maintain quality standards this way we should follow! I see there are only 11 institutions in the whole of England and I appeal to all my colleagues in the profession to take part in Wales who are authorised to conduct the Bar Professional the activities of their Local Law Societies, to engage and to Training Courses as opposed to 44 Institutions who are show their pride. authorised to conduct the Legal Practice Course for solicitors. SRA has now realised that quality of training for LPC candidates is produced at high cost but with patchy outcomes – it remains to be seen if the SQE is any better. My instinct is that the new test for entry will be set lower than at present so as to admit even more ARIYA SRIHARAN new people into the market in search of a career. When the time President, comes to challenge the new SQE regulations we must do so for Middlesex Law Society the sake of our future profession. ‘The City’ will be largely e-mail: firstname.lastname@example.org unaffected by changes as they are able to select at the top of the market and will still search primarily from graduates of Russell Group Universities, and those with the highest grades in both Degree and new final exams. The remainder of candidate will be released to the rest of the 7500 firms around the country and into
The BILL of MIDDLESEX 5
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Welcome to the latest edition of the Bill of Middlesex. SUNDEEP BHATIA
week is a long time in politics and it seems a lifetime ago since the last Edition of the “Bill of Middlesex” was published.
I am delighted to report that our very own Middlesex Council Member, Michael Garson, is one of them.
His substantial experience, intelligence and grasp of Law Society affairs will serve the Board well. We are now less than a year away from Brexit with all that will entail for the Profession and its right to practice abroad as well as This is my last edition as Editor of the “Bill of Middlesex” although an unknown effect on those from other jurisdictions coming to the I hope to write articles for it in the future. UK to settle disputes in this jurisdiction. I wish the publication well in the future. The SRA has been busy and I attach a report on their latest consultation on Professional Indemnity Insurance. Like all recent SRA consultations, it is controversial with real ramifications for client protection and the reputation of the Profession. As I write this, the Profession is still reeling from a Preliminary decision, by the Legal Services Board, to allow plans for the Solicitors Qualifying Examination to proceed despite manifold concerns expressed from different sectors including educational bodies and the Law Society.
SUNDEEP BHATIA Law Society Council Member for Ethnic Minorities Beaumonde Law Practice. South Harrow
The Law Society is also coming to terms with substantial reforms in its Governance. I have come to the end of my term as Chair of the “Regulatory Affairs Board “ of the Law Society because it no longer exists. It has been combined with the former “Legal Affairs and Policy Group” to form the “Policy and Regulation Committee”. The former Membership and Management boards have combined to form the “ Membership Organisation Committee.” Overarching them is the Main Board which is Chaired by Immediate Past President, Robert Bourns. Three Law Society Council Members sit on it.
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Thousands will walk for justice in London on 21st May
Last year over 12,000 people, the majority of them lawyers, walked to raise funds for free legal advice services in London and the South East. The walk raised over ÂŁ800,000 to promote access to justice for the most vulnerable.
he annual London Legal Walk has attracted the support of the whole of the legal profession who are fundraising to enable colleagues in advice agencies, local Citizens Advice and Law Centres to continue to help people access vital free legal advice. The people that the advice centres help include families facing homelessness, elderly people requiring community care, trafficked women and children, disabled people, refugees, people who are facing unemployment and those with mental health problems. These vulnerable have suffered most during the recession. Meanwhile, cuts in civil legal aid and council grants have made access to free legal advice in the capital much scarcer. Legal Aid firms in the high street have diminished rapidly, some advice centres have closed and most others have had to severely reduce casework staff. Lawyers from all parts of the profession recognise the need for legal help for the vulnerable and come together to raise funds. The most senior judges walk side by side with law students; corporate lawyers and QCs with high street solicitors and caseworkers working in front-line advice centres. Many in-house lawyers from multinational companies will be walking.
8 The BILL of MIDDLESEX
President of the Law Society of England and Wales Joe Egan says, "Each year thousands of solicitors and barristers across the UK take to the streets to raise money for charity. The London Legal Walk is a highpoint in the calendar and it is vital for raising money for organisations that provide free legal advice. This fundraising effort means a hugely diverse range of people get vital advice helping them face frightening legal situations. Those benefiting from the advice are vulnerable and would be unable to afford this assistance - and remember those least able to afford legal advice often can be in the most urgent need of it! Solicitors and the wider legal profession are committed to helping them." The walk starts and ends in Carey Street, WC2A - behind the Royal Courts of Justice. The walkers set off between 4.00 and 7.00pm - lead walkers will be available for photographs between 5.00 and 6.00pm The London Legal Walk is sponsored and supported by the Law Society and Lexis Nexis For more information, visit www.llst.org.uk or contact: Bob Nightingale on 01372 810466 or email@example.com
Law Society Council Meeting Law Society Council meeting summary: 21 March 2018 Council report Council met on 21 March in Manchester, emphasising the Law Society’s role in representing, promoting and supporting solicitors across the whole of England and Wales. As well as the normal business of Council, the opportunity was taken to engage with a wide range of local stakeholders from across the legal sector, including a meeting with a group of local law students. There was a well-attended evening reception on 20 March in the Manchester Art Gallery for members of the profession and other key contacts. Council then spent the day on 21 March on its business agenda. This included a substantial discussion of work which is under way to position the Law Society for the future, including transforming the Society’s IT systems, making better use of the Society’s property, and enabling staff to work more flexibly, all with the aim of making the Society a truly member-focused organisation.
Changes to governance for 2018 Council passed a complete set of amendments to the General Regulations, which are in effect the Law Society’s ‘standing orders’, consolidating all of the recent changes in the governance arrangements of the Society including the creation of the new Board and its two supporting Committees. This created what is basically a new set of General Regulations and marked an important stage in the transition. Council also received its first report from the new Board, covering matters including an update on organisational performance, the Law Society’s communications, preliminary audit findings, and the Board’s future agenda. The Board membership is now complete, with Lubna Shuja, one of the Council members for the Solicitors’ Sole Practitioners’ Group, joining the Board ex officio as chair of the new Membership and Operations Committee.
Lobbying on Brexit There was a presentation to Council on the Law Society’s work on Brexit which continues to feature prominently on the agenda. Council affirmed the Society’s continuing commitment to market access, now calling for a deep relationship with the single market as a guarantee of this. The Society also continues to focus on continued civil and family justice co-operation; collaboration in policing, security and criminal justice; robust and clear transitional arrangements; and the ongoing promotion of the jurisdiction of England and Wales. Continued high-profile engagement with government and with parliamentarians more widely was noted by Council, with the Law Society receiving many mentions in parliamentary committee reports. Engagement also continues with the EU and other European stakeholders.Board. This, too, was signed off by Council.
inclusion including a programme on women in leadership in the law, and a wide range of activities to encourage access to the profession for the best candidates regardless of their social background. Work on the future of legal services will focus particularly on technological innovation as a driver of change. And there will also be a focus on championing the Law Society’s programme of work on mental health, wellbeing and resilience in the workplace.
Member communications and engagement Council noted that a new joiners’ pack is now being sent to all members on admission to the roll, including a welcome letter from the president and a copy of the Society’s member handbook. Council was also pleased to learn that a refreshed digital monthly e-newsletter for over 100 local law societies and for Council members was to be launched from April 2018 including accessible and timely content focusing on key overall themes for the profession and on regional and topical spotlights. The Law Society has also continued to develop guidance, products and services for the profession on the EU General Data Protection Regulations (GDPR).
Political engagement Council heard of continued relationship building with the new ministerial teams, including the new Lord Chancellor David Gauke MP, and the new Justice Minister, Lucy Frazer QC MP, covering priorities on access to justice, court modernisation, personal injury reform, and the Society’s early advice campaign. In January the Law Society and its campaigns were positively mentioned in Parliament on 17 occasions. The early advice campaign has so far resulted in significant parliamentary interest and a commitment by the Labour Party to reintroduce legal aid for early advice in family cases. It was noted that close collaboration continues with the Welsh Revenue Authority continues, including a joint survey on awareness of the new Land Transaction Tax.
International engagement In addition to the work on Brexit mentioned earlier, Council noted a seminar organised by the Society on the Day of the Endangered Lawyer, with focus on Egypt, as well as engagement with the British Italian Law Association, a delegation of students from the India Think Council, and a visit to Russia in response to ongoing discussion about the reform of the legal profession there.
Presidential year plan Council endorsed the presidential year plan for Christina Blacklaws’ forthcoming year as president which is due to begin in July 2018. Among the areas of focus will be continuing to lead the ‘pride in the profession’ campaign, a workstream on diversity and
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Presidential Year Plan 2018/2019 Christina Blacklaws is the current Vice-President of The Law Society of England and Wales and becomes President in July.
1. Preamble 1.1 This Presidential Year will be particularly important for our profession, the legal services sector and the justice system. This plan supports the delivery of the Law Society’s Business Plan 2017-2018, the Corporate Plan 2017-2022 and the organisation’s member offer. Its focus is to enable the Society to be the voice of solicitors, drive excellence in the profession and safeguard the rule of law. 1.2 A number of important consultations and milestones (national and international) will take place during the Presidential Year 2018/19. Some of these reforms aim to change the fundamental core of the profession, the justice system and the environment in which we operate. Others give us a chance to raise awareness and celebrate diversity in the legal profession. These include: • The country’s exit day from the EU on 29 March 2019. By July 2018 trade negotiation guidelines should have been agreed, including a transition period. The withdrawal treaty should be approved by October ready for ratification (UK and EU) by January 2019. • Important pieces of legislation will complete their passage through Parliament including the European Union (Withdrawal) Bill, Customs Bill and Trade Bill. • The General Data Protection Regulation (GDPR) will come into force in May 2018 and there will be an ongoing need to support members to comply and to share best practice. • The Ministry of Justice’s review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is ongoing. • The Solicitors Regulation Authority (SRA)’s decision on the Handbook will be issued, which will result in amendments to the Code of Conduct, Principles, Accounts Rules, Practice Framework Rules and Transparency. • The Financial Conduct Authority will consult on the senior managers regime and the legal function. • SRA’s consultation on personal indemnity insurance (PII) minimum terms and conditions and compensation fund will take place.
1.3 We will continue shaping and leading the discussion on Brexit to ensure that mutual market access and legal certainty are at the forefront of the negotiations. We will promote further our Global Legal Centre campaign and focus our efforts on in-house teams to encourage their use of the law of England and Wales as the governing law of contracts, the use of our courts for dispute resolution and our networks of firms to enable and facilitate their international deals. 1.4 We will continue to lead our pride in the profession campaign domestically by emphasising the work of solicitors and their contribution to the prosperity of the economy, society and our justice system and engaging with all sectors of our membership. 1.5 We will also focus our efforts on raising the profile of the organisation, supporting, promoting and representing solicitors on the following thematic areas: • Diversity and inclusion: Women in leadership in the law and social mobility • Technological innovation and the law • Access to justice 1.7 The areas of work in the Presidential Year Plan are covered by existing budgets (or explicitly mentioned if not) and aligned with the Business Plan.
2. Diversity and inclusion 2.1 The Business Plan 2018/19 states that a key objective is “to build members' reputation and business by promoting the value of solicitors to the public, businesses and other stakeholders, at home and abroad” (objective 1) and “increase levels of member engagement with TLS and levels of awareness of our offer” (objective 2). These objectives will be delivered by promoting diversity and inclusion in the legal profession and particularly, the contribution of women in leadership in the law and social mobility within the profession. 2.2 This workstream relates to the common core and practice enabler elements of the member offer. It aims to complement our work to “influence for impact”, promote pride in the profession and provide firms and in-house teams with the tools needed to ensure diversity and inclusion.
• The centenaries of some women being able to vote and all women being able to enter the profession will take place during 2018- 2019.
2.3 Women in leadership in the law
• The 10-year anniversary of the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the 70th anniversary of the Universal Declaration of Human Rights will take place in 2018.
2.3.1 The centenary of women being able to vote and to enter the profession and the 10-year anniversary of the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) fall within the Presidential Year. The foundations for this
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COUNCIL MEMBERS work have been laid during 2017 and early 2018, through the Law Society’s rule of law programmes and the women in the law workstream, which resulted in a substantive piece of quantitative research in collaboration with Lexis Nexis and supported by the Women’s Interest group of the IBA. (annex 1 – results of the survey). 2.3.2 The objectives of this programme are: • To position the Law Society as a central stakeholder to the debate on women in leadership in the law. • To be a thought leader with whom all parties (political and nonpolitical) want to engage and become the go-to organisation for our members for guidance, advice and assistance on matters related to women and the law. • To address matters relevant to women’s rights and gender equality domestically and internationally within the legal sector and the judiciary. • To promote and support gender equality in the legal sector. • To level the playing field for all women working in law irrespective of role and to include business service professionals and the judiciary. 2.3.3 The main activities and outputs which will take place during the Presidential Year are: • Academic literature review – This programme will harness the knowledge gained through academic research of women in the law (domestically and internationally), which will enable us to gain insight, identify best practice and build on lessons learnt. It will take into account the results of our own survey, which was undertaken as part of this programme between November 2017January 2018, and which produced the largest global survey response rate ever achieved on this issue. We have the financial support of Lexis Nexis and, potentially, the International Bar Association . The resulting report will inform the specific questions to be addressed through the roundtables and will be available by May 2018.
o A women lawyers twinning programme to enable women in England and Wales to build sustainable relationships with women lawyers in other jurisdictions o An Equal Pay toolkit- best practice and examples of how to successfully change the gender pay gap o An unconscious bias toolkit with training and suggested best practice o A HeforShe toolkit- the business case and research basis for gender equality, successful examples, influencing skills support to enable women to engage with male leaders in their businesses to promote positive change. • Evaluation of the pilot roundtables - Once the initial UKbased roundtables are completed they will be evaluated to determine the level of success and subsequently whether it is suitable to extend the syndicated roundtables to other jurisdictions. Extending the remit of the project would permit comparisons to be drawn between the various jurisdictions and enable commonalities to be identified. As well as identifying issues and obstacles in the profession, the roundtables will provide insights into obstacles to leadership positions in the profession. This will be available for International Women’s Day, March 2019. • Evaluation of the ‘call to action’ - An impact assessment will be undertaken 6 months after the close of the roundtables to evidence the difference that the activities have made. This will be available for May 2019. We are in discussions with Lexis Nexis and the IBA around funding for this part of the project. • Final report and international symposium - The findings of this work will be put together in a final report that will be made available to all our partners and stakeholders. We will host an international seminar in June 2019 to disseminate our findings and pass the baton on to the international community. Further work will be required to take forward recommendations for positive change, headed by the Law Society. We will aim to make 2019 the ‘Year of the Woman Lawyer’. We are in discussions with Lexis Nexis and the IBA around funding for this part of the project
• Qualitative research and roundtables – This research will help us gain more in-depth insights into the experience of women in the profession today. A pilot nationwide programme of syndicated roundtables will be organised by the Law Society , as well as in other jurisdictions if possible, to supplement the research on career barriers. Leading individuals in the profession, local Law Societies, GC groups and representative bodies have volunteered to host roundtables. The Law Society will run 10 roundtables and we aim to empower a further 90 women lawyers to host their own roundtables and supply us with the results over summer 2018. We have applied for funding for this project from the IBA which could enable the Law Society to facilitate more sessions.
• Promote fair recruitment practices including supporting and promoting more firms to use ‘blind’ and contextual recruitment practices, including supporting the sustainability of the Diversity Access Scheme and the Diversity Charter.
• Toolkits - A core group of women leaders in law support the programme and are developing the toolkits for the roundtables.
• Encourage law firms to adopt practices to secure fair pay, particularly for internships and work experience.
• Call to action - One of the most important aspects of the roundtables will be the final questions or call to action. Recognising that all the women present have the potential to be leaders, the Law Society will prepare some packaged opportunities to empower each woman, and each group of women, to consider and possibly take forward a new activity either in their firm or business, within their community, or the wider national or international community.
• Champion personal development initiatives to provide solicitors with the tools to overcome lack of confidence and other barriers.
• There will be 5 specific toolkits: o An infographic to enable women to collate data about the women of influence in their firm/ business. We will ask them to send us photos and press cuttings for the First 100 Years archive in the British Library. We are also collaborating on a book.
2.4 Social mobility 2.4.1 During the Presidential Year, we will continue to support the existing work of the Diversity and Inclusion team and actively campaign to encourage access to the profession for the best candidates, regardless of their social background. 2.4.2 Some of the key activities for the year will be to:
• Regional coverage: to support solicitors to be able to drive, prioritise and promote fair access opportunities across England and Wales. • Work with firms, legal businesses and other organisations to support and promote the work of PRIME and other similar initiatives. • Promote the importance of diversity in the legal profession at all levels and across England and Wales, including the Welsh Government and Welsh Assembly and celebrate the work of our members in furthering this aim • Increase the visibility of the work of our sections and divisions.
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3. Future of legal services 3.1The Business Plan 2018/19 states that a key objective is to “protect and grow the value of the profession and safeguard the rule of law by influencing the legal and regulatory environment at home and abroad.” (objective 3) which will be delivered through “developing a programme of work – currently conceived as the Public Policy Forum – on the effects of AI and transformative technologies to support and guide innovation by members and to innovate ourselves.” 3.2 These activities relate to the common core, informed source practice enabler elements of the member offer. Particularly, these aim to complement our work to ensure solicitors feel competent in their roles, able to demonstrate value to their clients and be competitive in the market. 3.3 We will continue to support the Law Society’s work on the future of legal services with a focus on technological innovation as a driver of change. To further enhance this work, we are launching a Technology and Law Policy Forum . The main aims of the forum are: • Platform. To harness the Law Society’s convening power by offering a neutral platform for academics, policy makers, lawyers and technologists to address pressing legal and ethical challenges of technology. • Roundtables. We will host a series of roundtables with experts and with high profile chairs – which will be part of our thought leadership programme. • Report. We will publish a report that will highlight the issues and suggest potential solutions. 3.4 The first theme that the Forum will address is the intersection of law and human rights. We will explore whether the current human rights framework (which dates largely from the 1940s) is fit for purpose and what human rights law should look like in the context of rapid technological change. 3.5 In addition, we will continue to engage with the developing legal tech start up community to influence the design and development of appropriate products and services for the profession. 3.6 We will also look to support the profession through engagement via roadshows, guidance and access to new technology, to give them the opportunity to make properly informed decisions about technology and their businesses.
4. Access to justice 4.1 The review of LASPO will be ongoing and access to justice will continue to be a key focus. This workstream relates to the common core and practice enabler elements of the member offer. Through our campaigns, policy work and public affairs engagement we will be promoting the rule of law and the integrity of the justice system. 4.2 We will continue to campaign for access to justice and reiterate the responsibility of the Government to provide a fair and adequate system of justice. We will increase the profile of our early advice campaign and the legal aid deserts campaign. 4.3 We will continue making the argument to decision makers that pro bono legal advice must never be viewed as a substitute for a properly funded legal aid system, whilst at the same time supporting the profession to conduct pro bono. 4.4 We will also provide clarity for people affected by the Grenfell fire and solicitors advising them, to ensure those affected have access to justice. As Vice-President I have chaired the Grenfell Lawyer’s Forum and I will continue to do so during my term as President.
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We will also be seeking to influence the Government on issues raised by the Forum, where appropriate and promote the work of the Forum in the press, where appropriate. In addition to this, we will continue supporting the programme of court reform provided it does not hinder people’s ability to access justice. 4.5 To further pursue this aim, we will continue to support lawyers doing pro bono work and continue to put in place the necessary arrangements to provide emergency pro bono support in disaster situations.
5. Mental health and well being 5.1 Mutual respect, inclusion and a celebration of diversity will be watch-words for my presidential year. Whether in law firms, legal businesses or within our own Law Society, working with colleagues, I will strive to ensure that together we can build a more collaborative, understanding and supportive environment for all. 5.2 In 2016, the Law Society's annual PC holder survey found that 97% of the profession have experienced stress in their role and 21% of whom have experienced extreme levels of stress. This is a 5% increase since 2013. When asked what were the causes of this, 52.6% reported workload as the highest indicator, 37% reported client expectations and 20.7% of respondents reported deadlines and targets. 5.3 A survey led by the Junior Lawyers Division last year also showed more than 90% respondents had experienced stress in their role. 26% said that they have experience severe extreme levels of stress. In addition, more than 25% of respondents stated that they had suffered with a mental health problem in the last month (whether formally diagnosed or not) with only 23% telling their employer about it. 5.4 I will champion the Law Society’s programme of work on mental health, wellbeing and resilience in the workplace. I will continue to support relevant research in this area as well as the publication of best practice guidance. 5.5 We will continue to offer solicitors and HR professionals mental health first aid training in both England and Wales. We will support employers to safeguard and promote resilience and wellbeing of employees in the workplace by focusing on support, education, training and culture.
6. Shaping our future 6.1 I will support the work being led by the Executive Team on shaping the future of the Law Society, including being a Culture Code advocate. I look to all my friends and colleagues to help achieve this ambitious agenda. Together, we can…
Christina Blacklaws Vice-President of The Law Society of England and Wales.
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BREXIT – Update Prepared for Law Society Council Meeting on the 21st March in Manchester The Law Society’s work on Brexit has focused on five key priorities: • Continued mutual access for solicitors to practise law and base themselves in the UK and EU member states, to have rights of audience in EU courts, institutions and the Unified Patent Court (when it opens) and for their clients to have legal professional privilege • Continued civil and family justice co-operation, including mutual recognition and enforcement of judgments and respect for choice of jurisdiction clauses in the UK and EU • Maintain collaboration in policing, security and criminal justice • Ensure that legal certainty is maintained throughout the process of withdrawal, including transitional arrangements • Ensure that the Government works effectively with the legal services sector to continue to promote England and Wales as the governing law of contracts, the jurisdiction of choice and London as the preferred seat of arbitration. These were established through speaking to the Law Society’s policy committees, our Brexit Taskforce and the wider membership to identify how Brexit could affect their businesses and their clients.
a. Political developments • Market access – The Prime Minister said the Government wanted to limit the number of barriers potentially preventing UK firms from setting up in the EU and vice versa, and to ‘agree an appropriate labour mobility framework that enables UK businesses and selfemployed professionals to travel to the EU to provide services to clients in person and that allows UK businesses to provide services to the EU over the phone or the internet (and vice versa).’ • May said given that UK qualifications are already recognised across the EU and vice versa. It would make sense to continue to recognise each other’s qualifications in the future.
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• Civil judicial co-operation – The Prime Minister noted that law was one of the areas where UK and EU economies are closely linked. She went on to say the Government wanted an agreement to cover civil judicial co-operation, ‘where the EU has already shown that it can reach agreement with non-member states, such as through the Lugano Convention,’ but that they also wanted a broader agreement that reflects the UK’s unique starting point. • Company law and intellectual property – The Prime Minister added the agreement ‘will also need to cover company law and intellectual property, to provide further legal certainty and coherence.’ • Competition – May said to have good access to other markets we would need to accept some binding commitments and said that the UK may want to converge on areas such as state aid and competition. • Court of Justice of the European Union (CJEU) – The Prime Minister’s view on the involvement of the CJEU seems to have softened. She noted that the UK could explore being part of EU agencies such as the European Medicines Agency, the European Chemicals Agency, and the European Aviation Safety Agency. She notes that this means ‘abiding by the rules of those agencies and making an appropriate financial contribution.’ i. Chancellor of the Exchequer’s speech – March 2018 On 7 March, the Chancellor of the Exchequer reaffirmed the existing Government position that a future UK-EU partnership should involve financial services and that this was necessary to ensure that the European financial services sector did not fragment post-Brexit. He restated the Prime Minister’s Mansion House position that the model should not involve the existing structure of passporting, but instead a new model of regulatory co-operation. He also restated the Government’s three principles for any future framework with the EU on financial services:
The Prime Minister said the Government wanted to limit the number of barriers potentially preventing UK firms from setting up in the EU and vice versa 1) A process for establishing regulatory requirements for cross-border trade
In the ministerial reshuffle of 2018, several changes were made that are relevant to the Law Society’s Brexit work. These include:
2) Co-operation arrangements that remain reciprocal, reliable, evidence-based, symmetrical, transparent and which prioritise financial stability
• Lord Chancellor – David Gauke MP • Justice Minister with responsibility for Brexit – Lucy Frazer QC MP
3) A legal framework that makes this structure durable and reliable for participants in the market and for businesses who use their services.
• Business Minister with responsibility for professional services – Richard Harrington MP
In his speech the Chancellor also made the following key points:
• Exiting the EU Minister - Suella Fernandes MP
• Future relationship framework – Hammond made the case for the UK having the ability to deliver equivalence in regulatory outcomes achieved by different means. Underpinning this would be a system of mutual recognition and reciprocal regulatory equivalence, supported by dispute resolution structures. He noted this would involve close regulatory and supervisory co-operation on areas including day-to-day supervision and crisis resolution. He argued that the UK cannot be a future rule taker, due to the large share of European financial risk that the UK shoulders. He confirmed that the UK would be leaving the EU’s supervisory agencies.
The President spoke at the swearing in of the Lord Chancellor, David Gauke MP, and he noted his support for continued mutual market access for legal services.
• Divergence - Hammond stated that there should be clear institutional processes to manage future divergence to ensure reasonable and proportionate regulatory responses. He noted that there was precedence for these processes in CETA. • Precedent - Hammond argued that all of the EU’s trade deals have been unique and bespoke. He stated that the UK and EU currently have a shared regulatory framework and shared standards. He further argued that the EU proposed financial services trading in its TTIP proposals and initial proposals for CETA. • EU concerns - Hammond acknowledged EU concerns for the implications of financial stability, eurozone integrity and divergence in standards. He stated that the UK and the EU should agree mutually satisfactory co-operation in the clearing of Euro trades. • City of London - Hammond described the City of London as a European asset, supporting businesses and savers across the EU. Hammond argued that the City of London is a leading hub for foreign exchange and derivative trading in the EU. • Fragmentation - Hammond stated that fragmentation of the City of London would damage the EU as a whole. He stated that consequences would bring damage to pan-EU trading, limiting access to pools of European capital and inhibiting futures trading in the EU. He noted that the beneficiaries of fragmentation would be the US and Asia and will leave the EU as less competitive as a whole. • Regulation - Hammond noted that the UK had gone further in enforcing strong regulatory standards than many EU states. He reaffirmed that the UK was committed to robust regulation.
We have already met with both the new Lord Chancellor and Justice Minister, who both noted their support for the Law Society’s asks on mutual market access and civil justice co-operation. We also met with the Minister for professional services, Richard Harrington MP, who was supportive of continued market access for legal services. The Law Society now has bi-monthly meetings with the Minister as part of the Professional and Business Services Council’s mutual market access working group. ii. Sufficient progress – December 2017 In December 2017, the UK and EU received ‘sufficient progress’ on the three issues (citizens rights, the Irish border and budget contributions) to move on to discussing transitional arrangements and the future UK-EU relationship. In the joint report, the UK and EU agreed that those solicitors and European lawyers who have gained the host state title in the member state and vice-versa in the UK, will be able to continue such practice in the host state after Brexit. Recognition procedures under these directives that are ongoing on the ‘specified date’, in respect of the persons covered, will be completed under EU law and will be grandfathered. The Law Society has been and will be making the case for continued practice for host state law (including EU law) under home state title (including the right to appear in host state courts), the ease of requalification as a lawyer in another member state and of current border crossing and recognition procedures, to UK Government and EU stakeholders. The EU published its draft legal text on the withdrawal agreement. As of 6 March, the Government had not responded to the draft formally. The Law Society will also be sending feedback to the relevant Government departments on the draft EU legal text. The key points of relevance in the draft text the legal services sector are: The BILL of MIDDLESEX 15
We have circulated these papers to ministers, civil servants, parliamentarians and members. We received positive feedback from Government special advisers and parliamentarians on t two papers.
• Lawyers/legal services – The December agreement on professional qualifications features in the Commission’s texts, with specific reference to the Lawyers’ Directive. Article 26 states that existing rules apply regarding the ‘examination by a competent authority of their host state or state of work of any application for the recognition of professional qualifications’ introduced before the end of transition.
Reflecting on the Prime Minister’s focus on mutual recognition in her March speech, we will also be putting together a paper for the UK Government on what mutual recognition of professional qualifications means for legal services.
• Broad position on transition – The language on transition was published by the Commission in early February and remains unchanged in this draft. Negotiations between the EU and UK on transition are on-going, with a political agreement expected before the end of March. The provisions ensure that the EU acquis continues to apply to the UK during the transition period, whilst the UK cannot participate in enhanced co-operation or participate in the work of any bodies.
The Law Society will also work with European bars of priority jurisdictions to secure continued market access and practice rights for members. A strategy paper is being developed on planned engagement activities with for instance the French, Greek, Spanish and Irish bars to ensure that solicitors can keep their practice postBrexit. The paper looks at bar-level solutions for a scenario that assumes a situation between being part of the single market and EU-level FTA.
• Legal services and transition – Articles 62 and 63 of the draft agreement provide for the continuing application for the Rome and Brussels Regulations in respect of all agreements concluded before the end of the transition period. There are explicit provisions regarding continuing rights of audience for UK lawyers before the CJEU during the transition and in cases taken in the UK before the UK’s exit from the EU.
2. Key activity on Brexit
• Dispute resolution / role of the Court of Justice of the EU – The text largely reflects the agreement reached in December on citizens’ rights, with UK courts having the possibility to apply to the CJEU for a preliminary ruling up to 8 years after the end of the transition period. The text also sets out details on the new independent authority to be established to enforce the provisions of the agreement relating to citizens’ rights. iii. Civil justice co-operation paper – August 2017 All of the Law Society’s major asks on civil justice co-operation were adopted and a significant amount of our messaging was reflected in the Government’s paper on cross border civil judicial co-operation that was published in mid-August. The Government stated that it will seek to maintain as close and comprehensive cross-border civil judicial co-operation as possible, on a reciprocal basis. The paper also contained a clear statement of intent to remain in the Hague Conventions and Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The paper commits to the enactment of the Rome I and II instruments on choice of law and applicable law. The paper also recognises the importance of maintaining relevant international family law mechanisms such as the 1980 Convention on the Civil Aspects of International Child Abduction (which the UK is already party to) and seeking to maintain close co-operation in EU family mechanisms e.g. Brussels II Regulation. This is a significant reflection of the Society's intensive work in this area since the referendum. The Prime Minister’s speech on 2 March 2018 reiterated this commitment.
1. Areas to focus on in 2018 The Law Society will continue to engage with stakeholders on our five priorities. However, as the Brexit negotiations develop, the Law Society has sought to highlight our view on three key issues in early 2018. We have put together three short papers on key Brexit issues:
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The Law Society continues to be vocal on Brexit and promote the priorities of its members. The key activities of the Society are • Engaging with Government ministers and officials – The Law Society has met with relevant ministers including the Lord Chancellor and Secretary of State for Exiting the EU. We have a regular dialogue with officials at all levels in the Ministry of Justice, Department for Exiting the EU and Department for Business, Energy and Industrial Strategy. • Engaging with Parliament – The Law Society has given written evidence 11 times and oral evidence 5 times to parliamentary committees, leading to Law Society mentions in eight reports. We have met with shadow ministers and chairs of five key committees on Brexit. We have also been briefing on key Brexit bills including the EU (Withdrawal) Bill and AML and Sanctions Bill. . • Engaging with EU stakeholders – The Brussels Office has been meeting with UK MEPs. It also regularly meets with the British Chamber of Commerce’s and the UK Permanent Representative. We have also hosted events in the EU Parliament on citizens’ rights and dispute resolution mechanisms. • Engaging with wider European stakeholders – The Law Society has been engaging with the CCBE and its European delegations on Brexit. We have also been engaging with national bars and law societies from EU member states. • Inputting into key Government groups – The Law Society is the secretariat of the Brexit Law Committee, a group set up by the former Lord Chancellor and Lord Chief Justice, and has been active in the Professional and Business Services Council’s mutual market access working group. • Raising our issues in the media – The Law Society has featured in press coverage on a range of issues on Brexit in national newspapers and the Evening Standard. • Engaging with members – We continue to update members of our work on Brexit in the UK and those based in Europe through roundtables, visits to local law societies and through the Law Society website. We will be undertaking a series of communications to members to highlight one year on from triggering Article 50.
Council Home and Away When in February Council met in Manchester it was a break from the tradition of meeting once in three years in Wales but otherwise at Chancery Lane. Joe Egan president from Bolton met demand from local firms by enabling them to meet with council members the night before its meeting he meeting received updates on Brexit discussion and the questions important to many in the profession concerning practising rights following termination dates in 2019 and the transition period. We can expect fierce competition from Bars across Europe and anything that weakens the reputation of English law and regulation will feed into this. The Council is involved in redesigning the services of the society to be more relevant to the needs of members. Shaping the future services of the Society is ongoing work which follows a long period of research that suggests the services offered are ones that members want and need but there is much room for improvement in the quality standard and the ways in which they are accessed and delivered. The research underlying this work also shows that there are large numbers particularly those working in-house and in larger firms who are not reached by the information, advice and services provided through the society. It appears that many offerings are taken up and aimed at the high street profession which is possibly the sector the least able to pay though clearly where the need is at its greatest. Services improvement rather than any reduction is what Council will be seeking and the executive confirm that in their view the current IT programme will be key in delivering this. The new board of which I am a member has delegated responsibility to implement Council’s policy decisions and in February we met with the four new members including to non-solicitors who have joined us from outside council. They bring expertise in areas of management that will be a welcome addition. The board has now met twice and will need time to settle and set a new working relationship with the executive leadership team. One major outstanding governance issue is to settle the way detailed policy work will be managed. That is delegated to a new committee that combines two previous boards whilst the day to day specialist committee will continue much as before. However the resources and ways in which the Society engages and responds to the SRA on regulatory matters still needs to be resolved. The importance of getting our responses right will be brought quickly into focus as the SRA have now published proposals for reform of professional indemnity insurance and the compensation fund. These will divide the profession as they did in 2014 as they will be palatable to some who may believe that can pay less for insurance protection adequate for their needs - whether or not that hope is realised and others who may see the opportunity to close their firms at lower more affordable cost.
The Legal Services Board received a number of letters including from the parliamentary Justice committee asking for a delay in permitting the SRA to continue its road to reform of the solicitors qualifying examination for introduction in 2020. The LSB have given approval and under the new arrangements it is proposed that the four criteria for admission as a solicitor will be– • passing a centralised assessment conducted by an assessment organisation appointed by the SRA • holding a degree or qualification or experience that SRA is satisfied is equivalent to a degree • completing work experience of two years duration with confirmation of that work experience from the compliance officer for the legal practice or other solicitor who has experience of work done; and • satisfying the SRA of character and suitability At this stage the SRA has not finalised its plans for structure content and assessment methodology for the SQE and so they will need to make will be making another application for approval at some stage in 2019. The LSB concluded that there is no evidence to suggest that there will be a negative impact on into the international competitiveness of the legal profession from the removal of the requirement for prescribed academic study of law and the residual risk was not considered sufficient to be a ground for refusing application when balanced against the wider positive aspects that the SRA was seeking to achieve through the changes. Whilst there is little opposition to the introduction of a requirement for central assessment many doubts will remain until the SRA are able to detail the content and format of the qualifying exams examinations which must test the competencies that they have established for qualification. In the absence of any prescribed law degree or GDL or LPC it seems doubtful that the SQE will prove accessible without some expense on the part of students in training courses. These will doubtless spring up and be unstructured in delivery. The quality of ‘work experience’ compared to the Training Contract also gives rise to doubts whether current standards will in reality be maintained.
Michael Garson Council Member South & Central Middlesex
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Are there opportunities working with other professions? What business model and what technologies are relevant? Can we cut the cost of managing risk and dealing with SRA? What are the risks and opportunities arising from SRA reforms of Codes, SQE and PII?
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Compliance Corner In July in 2014 the Legal Services Board refused the SRA’s application to reduce the minimum cover and that the standard indemnity insurance terms from £2 million to half £1 million the Legal Services Board (LSB) refused to make the change but allowed but did allow others. Michael Garson and Sundeep Bhattia The declared SRA objective is to reduce the cost of indemnity premiums - 10% is an hey made it a regulatory requirement that firms had to assess and purchase amount suggested. For sole practitioners according to research that would be less than professional indemnity insurance at a level that was appropriate to risk. Also SRA £1000 and for the average 2-4 partner firm it amounts to less than £3000 each year. were permitted to exclude from claims to the Compensation Fund anyone but Simple calculations suggest that even if the premium for a small firm was reduced from individuals and micro businesses - which meant that lenders no longer had recourse an average 6-7% of turnover to say 4% of turnover it is unlikely to throw up savings to the fund. sufficient to fund price reductions. More likely any actual saving would be needed to At that time LSB were not persuaded by the evidence put forward to support the reduction in the minimum sum insured. Three years later the SRA are consulting again cover advice on top up, premiums on a cyber security policy or for carrying out the additional work required to comply with the new GDPR! The aspiration that any price on similar proposals (but for conveyancing work as defined) and this time supporting the proposals with data obtained from insurers. The claims data indicates that 98% of saving will be reflected in lower prices for clients is remote indeed. For new firms entering into the market the amount of insurance may initially be lower where the business owners all claims including claimant costs where an indemnity payment was made were have experience but the attitude of insurers to new risk is unlikely to be benign. settled at less than £580,000. The data is not complete and has many flaws. The figure for claims settled does not of For established firms there is virtually nil prospect of savings because PII policies course tell us the amount of the claim lodged when it was made, nor the defence costs work annually on a ‘claims made’ basis. This means that work carried out in the past and particularly the last six years is taken into account by insurers. Historic factors incurred in fighting and settling claims. Defence costs range from 10% to 25% of the such as the types of work carried out by the firm in the past that might give rise to cost of claims and protection from these costs are considerably reduced under the future claims are assessed as the Limitation Acts permit claims beyond the standard 3 new SRA proposals which apportion liability for expense of defence costs. year and 6 year time limits for negligence and contracts claims. The data presented to us contains a large category for ‘bulk or uncategorised’ claims The prospective changes to run off cover are rather different from what was proposed and has been analysed for a 10 year period from 2004 thereby inevitably excluding three years ago. The reduction in the total amount of cover required to be purchased is claims data from Quinn, Balva, Lemma and others who have withdrawn from the market (having carried cover for around 3500 firms) and who could have sustained the lower which will bring a reduction in premiums making it easier for firms to close. The amount of cover required for 6 years would be £1.5m in total for all work other than highest attrition levels. conveyancing where a £3m cover would apply. This means that in order that firms can The data analysed reveals payments of just under £2bn in respect of 142,000 properly and safely close down there may be a need to purchase, negligence claims including block claims. This averages at £200m at addtional cost, top up outside the terms of the MTC. paid out each year against a known premium intake of about Are firms really This applies also beyond the 6 year run off period. It must also £250m. There is a difference each year that is either profit or partly now be taken into account that automatic cover for claims down to the losses incurred by the missing insurers many of whom going to be able to provided by the Solicitors Indemnity Fund for claims after six are known to have lost money on poor risks. So the data can hardly separate out the low years will no longer be available. ( the fund will be closed from be said to present a full picture. September 2020). Claims do arise after six years and firms Over half the claims made and settled related to conveyancing work. risk work and would carrying out many types of work will be concerned to purchase Commercial work also produced high value claims but that be positive or post six year run-off cover when that becomes available in Employment, Family and Tax gave rise to relatively low- claims. confusing for the market. There is an underlying inference that high value work is handled by The SRA is promising a post-implementation review to assess consumers? large firms that necessarily take up higher levels of top up cover. how changes are affecting the market and unintended There is no research or data on the use of top up or the issues where consequences. However giving attention to the impact there is a crossover between layers of cover. assessment before making the changes highlights the risks which The pattern of claims is not itself surprising and is well known to the the SRA will be taking. At the heart of these lies the core insurers and for that reason SRA will have heard, though they suggest the opposite, ideological clash with the statutory objective to promote ‘a strong and independent that by lowering the compulsory minimum level of cover it is unlikely to yield any long-term reduction to premiums. Conversely where firms deem it necessary for their profession’ as these reforms taken together with the Codes of Conduct and SQE reforms represent a significant risk to the public interest in that the quality standards work or because of their history they will be driven to purchase top up cover and will and reputation of the future profession will fall. The range of work that will be carried be uncertain what terms the market will offer. There is a strong likelihood that the out under the label ‘solicitor’ through regulated firms, in-house, solicitors working in overall cost of buying the same amount of cover as at present will become more unregulated firms and working as freelancers some with minimum MTC cover and expensive. This does appear to be a high risk for everyone including the regulator but some without and some with adequate cover and some without points to the risk of mostly for small firms where the MTC would not cover business clients with turnover adverse publicity which will affect the reputation of the whole profession. And that is a above £2m!. risk that the regulator does not seek to protect. According to the figures SRA rely upon, it is 2% of claims that would fall above the The distinction between conveyancing work requiring a high limit of minimum cover new minimum. This would be a substantial value and will affect a random number of and other work is an artificial one and may drive the market to fragment as firms look individuals including vulnerable clients. SRA are aware of this risk and consider it to find ways of separating off the low value and low risk work from high-risk work. At acceptable. For some consumers even modest claims can have severe impact. The present much work that is carried out and would be covered by the definition of SRA restriction on eligible claimants on the Compensation Fund shows the same conveyancing will be engaged through activity in Family work, Wills and Estate casual disregard towards consumers. planning, Company and Business activity and even in some cases litigation. Are firms Firms who fail to take out the right amount of cover or carry on work which is not really going to be able to separate out the low risk work and would that be positive or covered by the new proposed high limit for conveyancing of £1m will need to be confusing for consumers? identified by the SRA and their chances of doing that in a timely and cost-effective It would further segment the market making consumers ever more reliant upon manner with current arrangements and resources seem remote. The regulator simply searching for specialists in carrying out a specific part of the overall legal help that does not have the information or resources to be able to react speedily enough to the type of situation that could arise to protect consumers. This carries a high reputational they seek. It may serve the interests of competition theory and increase economic activity but is not in the interests of economy speed and efficiency or clarity. risk for the entire profession.
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COUNCIL MEMBERS Confusion for the public is a major risk as confirmed in the external advice obtained by risks from solicitor involvement in dubious investment schemes has led to the the SRA from economics consultants ‘EPC’. They accept that consumers face a increase. SRA now propose ‘to modernise the rules and eligibility criteria to create number of difficulties in choosing appropriate legal services service provision a targeted fund to make sure that any loss does not lead to hardship. especially when they do so without relevant information and in distress. The credence The proposals include: nature of legal services means that clients often do not know and cannot judge the • excluding claims from individuals with net household financial assets quality of the legal services they either need or receive. Broadly that is why the level of above £250,000 protection given to consumers through PII and the Compensation Fund has been high. • excluding large charities and trusts and require all eligible businesses, charities The proposals reduce the level of protection and it is accepted by the SRA that a small and trusts to show hardship number of consumers are expected to be detrimentally affected. • excluding applications for payment of unpaid fees from barristers and SRA assess the impact is favourable because they anticipate a reduction in the cost of other experts • limiting payments to the direct financial losses caused by the actions of the minimum compulsory insurance by range of 9% to 17% and a larger reduction in the cost of run-off cover. Firms that do not provide conveyancing services of any type the solicitor • tightening qualifying conditions in circumstances where a solicitor has failed to and carry out low risk work may achieve reductions at the higher end of the range. get insurance However there is a risk to small firms that lenders and clients will find the changes • reducing the maximum payment from £2m to £500,000 unappealing because of the risk being redirected to them. This will translate into • applying a more robust approach to the applicant's behaviour, for example taking increased monitoring they will both need to carry out in order to ensure that adequate into account the steps a person has taken to confirm that the services being provided levels of insurance are being carried by their panel solicitors. It is likely to revive familiar issues such as smaller panels and ‘separate representation.’ It is interesting to by their solicitor are genuine note that the proposals would if implemented would be different from the requirements • requiring a duty of full and frank disclosure by an applicant of the conveyance CLC for licensed conveyancers that requires a minimum cover of The SRA are worried about the number of claims impacting the Compensation Fund £2m and that same amount of £2 million total cover for a six year run-off period which from firms using their client account as a banking facility or for the purpose of is spread by collection as part of each of annual premium payment. Certainly this may collecting money with no underlying legal transaction in which they are instructed. prove attractive to some firms especially if lenders favour that model. There are examples of very high value losses in investment schemes some of them overseas and speculative and organised through firms of solicitors both large and very There is a further risk of cover being refused where firms carry out conveyancing but did not declare this for the purpose of taking out the additional high level of cover. The small. These are hard for the SRA to identify and prosecute. Clearly there are high fees code provides at O1.8 that clients should have the benefit of compulsory professional attracting firms to undertake this work without seriously examining the underlying nature of the transaction and their obligations under anti money laundering and other indemnity insurance and solicitors shall not exclude or attempt to exclude liability recent legislation to combat terrorist financing. below the minimum level of cover required. This means that solicitors would be in a position to exclude liability above that level subject to it being reasonable and fair. However the reduction in protection suggested seems to be an overreaction given that Although this issue has not been addressed specifically there is the obligation to payments are discretionary and the proposal would see a high proportion of assess and purchase cover appropriate to potential levels of claim by clients –see consumers left without the protection they have historically enjoyed. Outcome 7.13. For more details see www.sra.org.uk/sra/consultations/access-legalCompensation Fund - SRA argue that the legal services market and the risks to people services.page#download that use the services of a solicitor has evolved. Individual solicitors and firms pay a 1 22/02/2018 contribution each year to cover the cost of claims and last year there was an increase 10:38 Michael Garson and Sundeep Bhattia in contribution levels thus reversing the reduction in the previous years. Emerging Council Members
The Law Society’s Excellence Awards are back for 2018 The Excellence Awards are back for 2018 and are going to be the biggest and best yet. They showcase excellence demonstrated by outstanding firms and individuals across the legal profession in England and Wales. Does peer recognition matter to you too? “I was absolutely delighted to win the award. It was particularly well received being a criminal practitioner, because we certainly don’t do things to receive personal recognition but are driven by our desire to see that justice is done.” Zoe Gascoyne, Quinn Melville Solicitors – Winner, Solicitor of the Year – Private Practice 2017
Don’t miss out This year your chances of recognition have increased as several new categories have been introduced, including Law Firm of the Year for Small, Medium and Large firms, as well as Sole Practitioner of the Year. The new awards are specifically designed to champion the best and brightest firms of all shapes and sizes.
“It meant a lot to win the Excellence Award in Pro Bono – for us it’s a useful way of communication both externally and internally about the impact of our work.” Paul Yates, Head of Pro Bono, Freshfields Bruckhaus Deringer LLP – Winner, Excellence in Pro Bono 2017
You have until Friday 25 May 2018 to enter this year's Law Society Excellence Awards, which will take place on Wednesday 17 October 2018 at the exclusive Grosvenor House Hotel on Park Lane.
“Us smaller firms have an equal chance…excellence isn’t necessarily connected with big firms but with the quality of what you do.” Hugh Adrian Scott Jones, Managing Partner, Hugh Jones Solicitors – Highly Commended, Excellence in Private Client Practice 2017
Check out some fascinating case studies from some 2017 success stories and see how the recognition has impacted their firms, visit: lawsociety.org.uk/excellence-awards You can submit your nomination before Friday 25 May 2018 here: lawsociety.org.uk/excellence-awards The BILL of MIDDLESEX 19
Ownership of documents in the solicitor’s file case file invariably would include instructions received from the client, correspondence between the solicitor and the client, correspondence to and from the solicitor to third parties, instructions to experts and their reports and so on. Not every document in the file would belong to the client. In the file, there will be documents which belong to the solicitor or third parties, to which the client may not be entitled. Is the solicitor obliged to deliver the entirety of his file to the client, or at all? The Law Society’s Practice Note “Who owns the file?” provides guidance to solicitors on how to respond to a request from a client for delivery of his file. Should a solicitor receive such a request, the solicitor will have to consider the ownership of the documents that are in his file.1 Solicitors may stipulate in their terms of engagement which documents belong to the client or which documents belong to the firm. They can also specify the circumstances in which the documents in the file would be destroyed or that the client will have to pay a charge for the search, retrieval, and copying of documents from the file. The guidance given in the Practice Note is given on the premise that no contractual arrangement is in place to determine the ownership of documents.
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The solicitor may have come into possession of the documents in his file in one of two capacities, either as the client’s agent or as his professional adviser. If the documents came in to the solicitor’s possession as the client’s agent, then they belong to the client. It is a legal incident of a principal-agency relationship that “a principal is entitled to require production by the agent of documents relating to the affairs of the principal.”2 If, on the other hand, the documents came into the solicitor’s possession in his capacity as professional adviser, then their ownership would depend on “the purpose of the retainer and whether the production of the document was a stipulation of the retainer.”3 In re Wheatcroft,4 it was held that the ownership of the original letters written by the client to the solicitor belong to the solicitor irrespective of the capacity in which they are received. Similarly, copies of letters written by the solicitor to his client are made solely for his own benefit and belong to the solicitor. In Chantrey Martin v Martin,5 a case that concerned a firm of accountants, it was held that the professional working accounts and other papers generated by a firm in the preparation of a final audit of a client’s books did not belong to the client, but letters and other papers generated by accountants as agent for the client were the client’s property. In Leicester County Council v Michael Faraday and Partners6 the Court of Appeal rejected a claim for the production of all documents, books, maps and plans in possession of rating valuers employed by the County Council which the valuers had prepared in carrying out their work as experts of valuing the plaintiff’s property. It was held that the relationship of the County Council and the valuers was not one of principal and agent but a professional. Accordingly, there was no obligation to supply the documents. It should follow that, in effect, there are two files, or a file within a file: one belonging to the client and the other belonging to the solicitor. It is worth noting that even if the documents are in the client’s ownership, a solicitor may refuse to release them in circumstances where he has a lien over them for unpaid fees. A solicitor is not bound to deliver to his client on the termination of his retainer either correspondence addressed to him by the client or copies of letters written by him to the client.7 A client is entitled to possession of letters written to the solicitor by third parties, but not to the copies of letters written by the solicitor to third parties unless they are paid for by the client.8 The rationale behind this rule seems to be that copies of letters written by solicitors are kept in his file for his own protection and have been prepared for the solicitor's benefit. Indeed, other documents such as attendance notes have a similar purpose and they are maintained to enable a solicitor to remember the advice he gave to the client. The attendance notes merely record the advice for the benefit of the solicitor to enable him to recall the advice given. 1 Para 2 of the Law Society Practice Note. 2 Fairstar Heavy Transport NV v Adkins & Anor  EWCA Civ 886. 3 Para 2.1 of the Law Society Practice Note. 4  6 Ch D 97 5  2 QB 286
It is a common belief among clients, shared by many solicitors, that upon the termination of the retainer the clients are entitled to their ‘files’. Very often, former clients demand delivery of their files long after their cases have concluded and the files have been archived.
In Green v SGI Legal LLP,9 which came up before Master Leonard, the clients wished to have copies of the documents from their former solicitor’s files to challenge the solicitor’s costs bill, and offered to pay 15p per page. The request sent by their then current solicitor stated that the reason for the request was for him to advise upon the viability of an assessment of the former solicitors legal bill pursuant to Section 70 of the Solicitors Act. They wished to have sight of all documents relating to the former client's claim and were specified to include all telephone notes, file notes, attendance notes or internal memoranda created in relation to the claim; all correspondence relating to settlement of legal costs; any invoices created, whether or not delivered; and a copy of the office and client account ledgers. The firm then supplied, in accordance with published guidance, all of the documents which the firm considered belonged to the clients but refused to supply copies of documents which belonged to the firm. The former clients made Part 8 applications under section 68(1) of the Solicitors Act 1974 for an order for delivery of copies of the documents. Before the Master, the claimants limited their applications to copies of funding documents; copies of all correspondence sent to the claimants; and copies of all invoices created during the currency of the retainer. They argued that the court’s powers extended to ordering the delivery of copies of documents which are not the property of the claimants, on payment of reasonable costs. Otherwise the client's statutory right to apply for assessment may be defeated. On the same principle the client should, on payment of reasonable costs, obtain a copy of the solicitor's entire file. Otherwise it is not possible to obtain adequate advice on whether to apply for a detailed assessment. Master Leonard disagreed stating: ‘The purpose of creating documents for the client’s benefit is fulfilled when those documents are given to the client. Supplying extra copies is another matter.’ If one person writes a letter to another, keeping a copy, it is not selfevident that that the recipient can require another copy on demand, even on agreeing to pay for it. She added: “A client who wishes to challenge a solicitor's charges, but who has nonetheless lost or destroyed the key documents upon which that challenge is based, will obviously be at a disadvantage. It does not follow that the solicitor has any obligation to compensate for that.” Master James revisited this issue in Ian Hanley v JC&A Limited.10 The claimant argued that In re Wheatcroft was no bar to the claimant seeking delivery of copies of his file on payment of the solicitor’s reasonable costs. Moreover, refusal of disclosure would result in the claimant being prevented from effectively challenging the solicitor’s bill, a result that would be unduly harsh and contrary to the interests of justice. Master James was not persuaded that she should order production of documents that do not belong to the claimant. She distinguished In re Thomson on the basis that the solicitors in that case had already offered the documents to the client and the sole question for decision was whether the client ought to pay for the privilege. She was also 6 Leicester County Council v Michael Faraday and Partners  2 KB 205 7 (1877) 6 Ch 97. 8 Re Thomson 1855 20 Beav 545. 9  EWHC B27 (Costs).
“concerned by the floodgates that would likely be opened by a ruling that Solicitors can be Ordered to hand over their complete file in circumstances such as these; such a move would foreseeably instil considerable satellite litigation and I am not persuaded that this would be a positive step…”11 The view taken by Master Brown in Swain v JC & A Limited12 strikes a discordant note to that expressed by Master Leonard and Master James. In Swain, the solicitors had acted for the claimant in respect of the claim he made for damages for personal injuries arising out of a road traffic accident with the benefit of a conditional fee agreement and ATE insurance. The dispute related to the production of the letter the solicitor wrote to the ATE insurance provider, the CFA agreement and the schedules to the CFA together with any other document which may form part of the retainer or the client care documentation. The stated purpose of the application was to ascertain whether the deduction made from the claimant’s damages was fair and in accordance with the funding arrangements and whether there were any grounds for him to seek an assessment of the sums payable by him in respect of the solicitor’s fees and expenses. The solicitors objected to their production because the claimant had failed to establish a proprietary right in the documents sought and argued that claimant’s application was no more than a fishing expedition. Master Brown determined that the court has the discretion to order the provision of copies of the documents whether or not a proprietary right in the relevant documents has been established, and further determined that it was appropriate in the case before her for that discretion to be exercised in the claimant’s favour. Master Brown decided that, regardless of whether the claimant had been provided with a full signed copy of the CFA, as the claimant had stated that the documents were missing, the claimant reasonably required them as he would have been at a substantial disadvantage without them. In Hanley, Master James was concerned that a ruling that the solicitors can be ordered to hand over their complete file in circumstances such as these would open the floodgates. In fact, in Swain Master Brown acknowledged that a large number of similar applications have been made in the Costs Office but that “there are significant differences in approach to the issue of the Court’s jurisdiction to make the orders sought.” Undoubtedly, this matter is likely to go upstairs for a resolution of these differences.
Dr. Reeza Hameed Hameed & Co.
10  EWHC B28 (Costs). 11 Ibid . 12  EWHC B3 (Costs).
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FREE WILLS MONTH
Free Wills Month is an opportunity for both solicitors and the public Ten national charities are working together to promote Free Wills Month during March. The promotion is an opportunity for people to have their Will written free of charge by a local solicitor and at the same time to leave a lasting legacy. or solicitors, the promotion is a fantastic opportunity to acquire new clients at no cost. The promotion involves a lot of local advertising, which includes participating solicitorsâ&#x20AC;&#x2122; details, paid for by the organisers. Solicitors average 25 new clients, though some set a lower limit while others regard it as an excellent way to add to their client list and take as many appointments as they can manage.
Many charities depend on gifts left in Wills for up to half of their funding. The Free Wills Month promotion aims to encourage those aged 55+ to have their Will written or updated (though in the case of couples making mirror Wills, it is sufficient if one has reached 55).
obligation to include a gift, though the great majority of people using the promotion choose to do so. The Free Wills Month charities work exclusively with solicitors who are in good standing with the Law Society and who are regulated by the SRA. The Free Wills Month charities in the March 2018 campaign are Age UK, Arthritis Research UK, The Blue Cross, British Heart Foundation, Guide Dogs, Marie Curie, MIND, NSPCC, the RNLI, The Salvation Army and Stroke Association.
Recruitment of solicitors for Free Wills Month March is scheduled to be completed by the end of January when Free Wills Month is a great opportunity for attention turns to the October campaign. The promotion people to consider leaving a gift to one 1or 30/11/2017 16:07 runs from Thursday 1 March to Friday 30 March inclusive. more of the charities. There is no
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Appointments have to be made during March, though the actual appointments can take place any time afterwards to suit clients and solicitors. Solicitors interested in taking part in Free Wills Month should visit the campaign website at freewillsmonth.org.uk or call 0345 686 4309.
FREE WILLS MONTH
Building a future where no one has to cope with a mental health problem alone In any given year, 1 in 4 people will experience a mental health problem, yet fewer than half of those with a diagnosed mental health problem tell their current employer. e live in a society where mental health problems are driving some people to despair and exposing them to prejudice. About half of all long-term sick leave in the UK is due to stress, depression and anxiety. Almost 1 in 3 people in England have experienced mental health issues while in employment, but only 1 in 4 employees in the UK said they would be likely to talk to their manager if they were experiencing a mental health problem.
The statistics are staggering, but Mind is here to help anyone who feels they have nowhere else to turn. We are the leading mental health charity in England and Wales. We are at the forefront of a change in the way that society is thinking about mental health. We’re striving to improve experiences and outcomes across every part of the mental health journey, whether that’s staying well, giving people choice, improving services, or breaking down barriers for those who can’t
access support. We can only continue our vital work thanks to public support, including gifts in wills. March 2018 is Free Wills Month in London and Mind is part of the consortium of charities involved this year. Clients using the offer are under no obligation to make a gift to any charity, but we hope that many will see this as a chance to support our work. Did you know that three times as many people would leave a charitable legacy if their solicitor reminded them to consider this opportunity? Solicitors promoting their clients to consider giving to charities in this way has proven to double the value of their donations too*. When speaking to your clients, please ask them if there are any causes they feel passionate about. And if they share our vision of a world where no one has to cope with a mental health problem alone, please ask if they would consider making a gift to Mind.
*Behavioural Insights Team Cabinet Office 2013
IGNORANCE IS NO DEFENCE
DevAssist investigates locations for development risks that could impact a property. We are an accredited CPD provider on development and planning. Our products:
For more information: t:
e: firstname.lastname@example.org PROTECTING BUYERS, SOLICITORS & LENDERS
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Reducing risk in conveyancing: are you using a full flood assessment? Jonny Davey
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. What is surprising, is that only about 17%* of orders placed with Geodesys, include a full flood assessment, meaning a large proportion of homebuyers are unaware of potential flood risk.
ome owners tend to have both insurance and warning systems in place to protect themselves against fire and burglary, yet very few take steps to reduce the chances of their property being flooded. This is quite worrying 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. What are the risks? 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 just 2013. Flood damage devastates memories, lives, and properties. It can increase the risk of illness and it costs large sums of money and time to put right. In terms of monetary disruption, not only will flooding affect the price of buildings insurance, but it will also cause disruption later on, when obtaining a mortgage and eventually reselling the property. Educating homebuyers Flooding can happen anywhere, even if a property is not next to the sea or a river. Surface water flooding is caused by prolonged, heavy downpours in built-up areas and in recent years has been responsible for many incidents. Non-permeable surfaces restrict absorption of the water into the ground so it ends up flooding rivers and drains. In spite of surface water flooding making headlines, it’s still an area that’s not well-understood by the average homebuyer. It’s no longer enough for conveyancers to rely on the Property Information Form (TA6) to identify whether a property is at risk of flooding. Last year saw Paul and Hazel Edwards from Newcastle make national news headlines after their property was flooded. They sued the previous owners of their house, claiming that a Facebook photograph proved they were hiding a flood problem that hadn’t been revealed on the Property Information Form. *17% quoted is based on an analysis of Geodesys orders for search reports April 2017 – March 2018
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The benefits of a full flood assessment Although there are a number of flood reports on the market, conveyancers should look for a residential property search that gives them a full assessment on the different types of flooding, plus information on insurability. A full assessment will also give details of whether a property qualifies for Flood Re – an insurance scheme set up to help households who live in a flood risk area find affordable home insurance. Search reports with flood risk assessments for residential properties include: • Landmark Homecheck Pro Flood • Groundsure Homebuyers • Groundsure Flood • Groundsure Avista • Landmark Riskview Residential 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
Jonny Davey Geodesys Product Manager – Conveyancing
LEAP launches conveyancing accreditation scheme Best Practice Standard ensures service excellence with independent auditing LEAP, the world’s leading cloud software provider for small to mid-sized law firms, announces the launch of the Best Practice Standard for conveyancing. The scheme is aimed at assisting law firms to achieve and maintain the highest standards of conveyancing. One key element of the Best Practice Standard is that a firm has independent audits performed quarterly by a third party. These are undertaken remotely by the Centre for Assessment (CFA) with a detailed analysis of the law firm’s processes and a full report is fed back to the law firm, with a clear traffic light system reporting on areas such as client care, AML, risk and compliance. The CFA also undertakes accreditation for the Law Society and is the trusted delivery partner for the Cabinet Office. There is no charge to a firm for the quality audits nor the Best Practice accreditation.
Craig Taylor, Conveyancing Manager at LEAP UK comments: “Our customers asked us to provide an independently guaranteed mark of conveyancing quality. A main differentiator between the LEAP scheme and other schemes is that the LEAP Best Practice Standard not only recognises the use of technology but is independently audited and not another tick-in-the box accreditation scheme filled in by the practice head of conveyancing. Clients love the audit process which reaffirms best practice.”
Vicky Hosking, Managing Partner of Michael Smith & Co of Ipswich, the first firm to achieve the LEAP Best Practice accreditation, comments: “The LEAP Best Practice Standard is very important to us and we shared our vision to achieve it with our staff. It gave us the opportunity to implement training to ensure the highest standards were being met by Best practice is ensured when processing conveyancing transactions from within LEAP software. A firm’s reputation is maintained and validated everybody in the team at every stage of a matter. Ultimately our clients through quarterly independent audits, which gives confidence to the firms’ receive the benefit from the very best practice.” clients and displays a commitment to service excellence. Achieving the Jayne Akitt, Office Manager LEAP client, Hart Jackson & Sons of standard will help a firm attract new clients and potential referrers which Ulverston in Cumbria, comments: “The LEAP Best Practice Standard is will help a firm grow its conveyancing business and build lasting a clear demonstration of how the LEAP software can be used to achieve relationships with its clients. Adherence to the LEAP Best Practice and maintain compliance and to deliver a first-class conveyancing Standard aids compliance and reduces risk. By achieving the standard service. Alongside internal checks the Best Practice Standard will give us clients are displaying proactive risk management which has the potential a ‘heads up’ on anything that may need addressing.” to lead to savings elsewhere, for example professional indemnity For further details visit: leap.co.uk/best-practice-standard insurance cover. The Best Practice Standard adds further value to the solution included in the cost of the LEAP licence fee.
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A family’s unexpected discovery changes the way the estate is distributed Where do you turn when a person has died without a valid Will and the family cannot tell you all the information needed to administer the deceased’s estate? Even when the family believe they can, do you execute the administration process, relying solely on the family testimony available at that point? Invest countless hours in trying to establish the family and piece together a family tree? Or do you enlist a specialist to check the facts, because they might just uncover information that could change the facts of the case altogether? Elsie Wright’s case illustrates why instructing a professional genealogist to verify facts is always best practice. Elsie Wright was born in 1930 in Ilkley, West Yorkshire, and she married George Strong in 1966. Elsie and George never had any children and she passed away in a nursing home in 2012, two years after the death of her husband, without leaving a Will. With no children, Elsie’s two nephews, David and Robert, believed themselves to be the sole heirs entitled to their aunt’s estate. Their mother Helen, Elsie’s only sibling, had passed away many years ago. With such a simple family history, the solicitor assumed that the estate administration would be a straightforward matter, but, having a thorough approach to his work, he pursued clarification using Fraser and Fraser’s Family Tree Checker service. This service involves reviewing the existing documents, certificates and family tree, and checking the details against the available transcribed databases to provide an expert genealogical opinion on its accuracy. In this case, the story had only just begun. By 1960s standards, Elsie was an old bride at the age of 36, and this sparked the interest of our Case Manager. Further research delved into Elsie’s past and uncovered an unexpected discovery. Elsie was previously married at age 23, and that marriage had resulted in the birth of a son named David.
This was a revelation that could potentially change the way Elsie’s estate would be distributed. It was previously understood that Elsie had no children and her estate would be shared between her two nephews. The discovery led the search for heirs in a new direction. Our research proved that Elsie divorced her first husband, but what became of the child continued to be a mystery. Elsie’s son appeared to have lived with her for the first year of his life but then no record of him could be found. He had not been formally adopted, and this would mean that, having legally remained Elsie’s son, he would retain the right to inherit her entire estate. The search continued and revealed a well-kept family secret that would change the nephews’ entitlements to the estate. Although David had been raised by Elsie’s older sister Helen, he was not her biological child. The woman he knew as Aunt Elsie was, in fact, his biological and legal mother. Following Elsie’s divorce, and given the societal pressures of the time, Elsie had given her son David to be raised by her older sister, Helen. After careful research and expert handling, a case that was brought to us with seemingly clear beginnings could now be rightfully distributed. Family secrets, informal adoption, multiple marriages and a lack of research expertise can all play their part in making research more complex than it originally seems. Fraser and Fraser’s Family Tree Checker service gives you the chance to discuss the complexities of the case with us. We check for inconsistencies, gaps and question marks so that we can advise you on the best way forward.
GENEALOGISTS AND INTERNATIONAL PROBATE RESEARCHERS Phone: 020 7832 1430
I am a Solicitor
Looking ffor or Missing Beneficiaries Missing Beneficiary Insurance Certificates Will Search Missing W Wiill Insurance Industry Regulation International Bankrruptcy Search Asset Search Share V Vaaluations, T Tra ransffers and Sales Probate Property Assistance
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Are you GDPR ready?
James Castro-Edwards Partner and Head of Data Protection, Wedlake Bell LLP Expertise James advises domestic and multinational organisations on data protection issues. His experience includes managing global data protection compliance projects for multinationals, and advising domestic companies on complex data protection issues. He has also developed and delivered innovative data protection training programmes for multinational clients, including a data protection officers’ training course which was accredited by a European government. James leads the firm’s outsourced data protection officer service, ProDPO (http://prodpo.com). James frequently speaks on data protection and cyber security issues and is widely published, having written articles for a wide variety of titles including The Times and The Guardian, and wrote The Law Society textbook on the General Data Protection Regulation (GDPR).
Background The use of personal data is regulated in England and Wales by the Data Protection Act 1998 (DPA). The DPA implements the provisions of European Directive 95/46/EC (Directive). The Directive, which came into force in 1995, has been the subject of significant reform, and will be superseded by the General Data Protection Regulation (GDPR) when its provisions take effect on 25 May 2018. The principles and concepts of the GDPR are similar to those of the Directive and the DPA, however, the GDPR includes significant new obligations for organisations and grants individuals a range of new rights. Impact of Brexit The GDPR has been law since 25 May 2016 but included a two year 'sunrise period' that will expire in May 2018, intended to allow organisations time to prepare. Unfortunately, this coincided with the EU Referendum and hence some confusion, with many organisations believing that the GDPR, as a European regulation, would not take effect in the UK. However, both the British government and the Information
28 The BILL of MIDDLESEX
Commissioner's Office have confirmed that the GDPR will become law. The result is that a significant proportion of the potential time to prepare for the GDPR has been lost. In the UK, the GDPR will be supplemented by the Data Protection Act 2017, the provisions of which are currently being finalised in parliament. Changes the GDPR will introduce The main changes that the GDPR will introduce include the following: • Scope: The GDPR will apply to a wider range of organisations than the DPA and Directive; not just ‘data controllers’ but also data processors acting on behalf of controllers, including in some circumstances, controllers and processors established entirely outside Europe. • Accountability: Organisations must not only comply with the GDPR, but must also be able to demonstrate their compliance to the data protection authority, for example, by way of policies, training and management. • Consent: The GDPR requirements around consent are significantly more stringent, outlawing many common practices, such as pre-ticked boxes and ‘bundled’ consent, frequently found in employment contracts and privacy notices. • Mandatory breach reporting: Organisations that suffer a data protection breach must report it to the data protection authority within 72 hours, and promptly notify affected data subjects if they face a high risk. • Mandatory Data Protection Officers (DPOs): Certain types of organisation must appoint a DPO, and voluntary appointment will often be advisable. • Privacy impact assessments: Organisations embarking on a new practice involving personal information must conduct a documented impact assessment and ensure the concepts of ‘privacy by design’ and ‘privacy by default’ are incorporated to new processes. • Penalties: The GDPR includes a range of penalties including fines of up to 4% worldwide annual turnover, or €20,000,000, whichever is greater. Data protection authorities are granted a broader range of powers, including the right to conduct compulsory data protection audits. Risks of non-compliance The high maximum fines the GDPR will introduce are explained above, however, the risks a non-compliant organisation faces are not limited to financial penalties. The GDPR grants data protection authorities a wide range of powers including the ability to conduct compulsory audits and to suspend organisations' use of personal information. In addition, the UK data protection authority plans to hire an additional 200 employees,
expanding its capacity by around 40%, in anticipation of the GDPR coming into force. In practice, this expansion will significantly increase its ability to enforce the new law. Organisations face an additional risk following a development in the common law, which enables individuals to claim for pure distress (i.e. no financial loss) where they are affected by misuse of private information. In what is believed to be the first of its kind, an award for damages on the basis of pure distress was made by an Edinburgh court early in 2017, and many commentators believe this paves the way for significant 'class action' type claims against organisations. How law firms should address the risk Law firms face a particular risk under the GDPR, as they typically hold a large volume of personal information about their clients. This may include sensitive information, where firms advise on matters such as personal finance, divorce, child custody, crime or medical negligence. A law firm that suffers a data protection breach concerning sensitive information would be regarded by the data protection authority as a serious matter. Law firms must be fully aware of the personal data they hold, whether about their clients or staff, and must take proactive steps to ensure such personal data is protected. A prudent initial step would be to conduct a data protection audit or review. Firms must have in place a data protection policy, including a data protection breach policy, and ensure their staff are appropriately trained. Any law firm that processes the ‘special categories of personal data’, which includes information about individuals’ health, is likely to need to appoint a DPO. DPOs must be independent, which precludes the Managing Partner, Head of HR, or Head of IT (for example). The GDPR imposes strict rules where controllers appoint ‘processors’, which process personal data on behalf of controllers (such as outsourced payroll providers, hosted software, or email marketing service providers). Failure to comply with these requirements may be regarded as a breach of the security requirements of the GDPR. There are now less than three months to prepare for the GDPR. Any firm that has not yet started to prepare should not delay further. As a first step, firms must identify the personal data they hold (for example, about their employees, clients, and their suppliers), and ensure it has been collected and used in accordance with the principles of the GDPR. The use of personal information is becoming an increasingly regulated activity, and failing to comply is an increasingly dangerous risk.
Your software swap checklist: Read before you leap! By Julian Bryan, Managing Director, Quill
Considering changing software suppliers? f, for whatever reason, software change is essential, we’ve compiled five questions to ask yourself and prospective suppliers to help you really assess your options and carefully research the marketplace before you switch over. The preparatory stage of your software swap project necessitates watching software demonstrations, meeting key personnel, reading contractual documents, including terms and conditions, asking this series of probing questions then evaluating your combined results. As an evolving profession, it’s easy to see why law firms upgrade their systems from time to time. You may expand or contract in size, adjust your area specialisms, accommodate new legislation and reform, merge or separate, face ever-more-demanding clients or maybe you simply made the wrong technology choice in the first place and support from your existing supplier is poor. Software purchase isn’t a straightforward decision because there’s an inevitable time investment on your part as you roll out new systems. Your new supplier can, of course, ease this process by assisting you throughout implementation, data transfer and end user training. This is a major contributory factor to any successful conversion. Selecting the right technology partner, then, is paramount, particularly as this is possibly the beginning of a long-lasting working relationship between your two businesses. If your legacy IT infrastructure is ill suited to your current and future requirements, it’s time to tackle those tricky software decisions. When it comes to the all-important questioning phase, here are the five questions:1. Are you happy with the system's legal accounts and compliance capabilities? Accounting functionality should be easy to use by fee earners, cashiers and managers alike, in order to simplify logging of expenses, billing, posting of e-chits, monetary transfers, bank reconciliations, supplier payments, financial reporting and other accounts-related tasks. A single system for client and office accounts is much preferable, otherwise you’ll be constantly toggling between applications and wasting valuable (potentially chargeable) time in the process. Compliant accounts management is dependent upon accuracy and due diligence. Search for a package that comes with an in-built warning system, automatic anomaly reports, AML scanning, identity verification, conflict checking and other risk management tools so that compliance with the SRA Accounts Rules, CLC Accounts Code and Scottish Accounts Rules is assured. 2. Have you established your exit strategy if your software choice doesn't work out? Contracts are occasionally outgrown. Check under what types of circumstances the contract can be terminated, specified notice period and what happens post-termination. For example, your supplier should act as the custodian, not owner, of your data and documents. Ensure everything’s exportable upon migration, and that formats and names are preserved. Thereafter, your supplier should delete from their stores, otherwise you’ll fall foul of data protection rules. With imminent Data Protection Bill and GDPR laws coming into force this May, your duties in this
respect are more onerous than ever before. Heavier too are the fines imposed for non-compliance. Your supplier must follow the right procedures in safeguarding your valuable data. 3. Does your potential software supplier belong to the Legal Software Suppliers Association (LSSA)? The LSSA is the UK body for legal systems developers and vendors whose aim is to set and maintain professional standards within the sector and manage areas of mutual interest between solicitors, legislative bodies, government agencies and software houses. As such, member firms are bound by the LSSA’s strict rules and code of practice. For you, this provides a guarantee of the highest quality software and highest standards of service. 4. Can you speak with a real human being on the phone for help and support? Will you be dealing with an actual person when you become an end user? Sometimes there’s no substitute for being able to pick up the phone and speak with someone who understands what you’re going through and can rectify your dilemma. Consider time zones, standard support hours and availability of extended out-of-hours support. What promises are made within SLAs with regards to system uptime, monitoring, maintenance and service responsiveness? These metrics provide your business continuity and disaster recovery plans. For those busy periods during which phone interaction just isn’t possible, of course, email, fax and online chat options are important too. It’s highly likely you’ll utilise all these communication methods as time progresses. 5. What's in the contract and can you digest at length before signing? It’s the small print that often causes problems. Look at assigned liabilities, responsibilities and disclaimers. Don’t be rushed into signing contracts without having been given sufficient time to read and analyse first. If your supplier is forcefully requesting your signature, and you feel pressured to commit against your will, alarm bells should be ringing. Contracts signed in haste often lead to disappointment and / or surprise, escalating costs. There’s a justifiable reason why contracts are lengthy documents. It’s a legally binding agreement between you and your supplier. Insist on having the necessary time to pore over the content of your contract, and only sign when you feel ready and comfortable doing so. To conclude, by following this plan, you’ll find out exactly what being a client will feel like, both in terms of software usability and staff interaction, as well as what happens should you later decide to cancel your subscription. While this is certainly a good starting point to your software swap, it’s by no means an exhaustive list. There are other pressing questions to ask, not least regarding cyber security measures, data centre credibility, industry track record and live reference sites. To contact the Quill team, call 0161 236 2910, email email@example.com or visit www.quill.co.uk. The BILL of MIDDLESEX 29
A passport is not enough Jonathon Bray
There is a huge problem with AML regulation. The penalties, as we know, are incredibly serious. Yet very few people know exactly what their obligations are. e very often come across firms who, with the very best intentions, are breaching their AML duties. They simply take client ID as part of the file opening process. This is usually delegated by the main fee earner, who may not ever really look at it. Conveyancing departments, where the risk is high, are often the worst offenders.
The junior staff member diligently goes off and gets the usual documents: copy passport (sometimes certified, usually not) and a recent utility bill. “There,” they think, “AML checks done”. 1
Except of course that is a dangerous assumption.
You have collected some identity documents – so what? Do they tell you anything about the risk of money laundering in this particular transaction? Back to basics. A solicitor’s duty under the Money Laundering Regulations is all about assessing risk, then undertaking appropriate client due diligence. You cannot do the latter without having done the former. Otherwise you are just blindly collecting ID documents to tick a box.
is11:23 meant by assessing risk? Well, it’s a big topic. But essentially it involves looking at the instructions in front of you and taking a view. Are there any clear ‘red flags’? Is there any reason why the risk level should be raised? Do you truly understand the instructions, the source of funds, the people involved and the flow of money? Does it pass the unscientific ‘sniff test’?
Clearly, this must be a job for the main fee earner. And the assessment really should be written down in some way. Ideally incorporated into a repeatable process. Your risk assessment will then guide the level of client due diligence that is required. Higher risk matters are likely to involve a lot more digging before you can even start work. Low risk transactions may require very little – you might conclude that a passport and utility bill is sufficient. Don’t forget: - CDD is an ongoing process, not a one time event - The firm is also required to assess the overall financial crime risk it faces (based on its client base, practice areas, jurisdictions, internal processes etc), and that ‘firm-wide risk assessment’ must be made available to the SRA on demand. Very few firms have done this exercise. - You must have a system for identifying PEPs and checking sanctions lists. I don’t think we are far from a position where running clients through online checks are de facto compulsory. - Not all practice areas are covered by the MLRs, but all work is subject to the main money laundering legislation (Proceeds of Crime Act and Terrorism Act). Make sure you know the difference. - The Law Society published its new AML practice note in September. It should be required reading for all solicitors. AML regulation is a cost of doing business. It is not going away. For the sake of self-preservation, make sure your firm’s processes are not lulling you into a false sense of security.
30 The BILL of MIDDLESEX
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he global art market is booming with sales totalling $45 billion in 2017 alone. Of this, Contemporary and Post-War Art has emerged as the most coveted collecting field, and despite some volatility at the top-end of the market, enthusiasm for buying art shows no sign of abating. At auction, there is a lucrative opportunity to acquire works by artists who regularly sell out exhibitions in galleries but whose auction records are comparatively low simply because a limited number of their works have reached the rostrum. With London one of the four global cities in which the rise of contemporary and post-war art is concentrated, Chiswick Auctions is perfectly positioned to serve this thriving mid-tier market. With branches in Chiswick and South Kensington, the auction houseâ&#x20AC;&#x2122;s established Fine Art Department hosts dedicated sales in Modern & Post-War British Art and offers an excellent platform to seek out both established and fresh names. Highly sought-after in the sales are works by names such as Bridget Riley, John Bellany, Ben Nicholson and David Nash due to their visual and financial appeal. There is also strong international interest in leading artists such as Henry Moore, Barbara Hepworth, Lynn Chadwick and David Hockney, among others. That being said, collectors are more and more appreciative of the creativity and investment potential of fresh names who have had a limited presence on the secondary art market. With works starting at as little as ÂŁ300, the sales are an excellent way of adding to or starting an art collection.
At the opposite end of the spectrum, Old Master Paintings have experienced a resurgence in popularity crystallised by the recordsmashing sale of Leonardo da Vinciâ&#x20AC;&#x2122;s Salvator Mundi in November last year. Chiswick Auctions held their inaugural sale of Old Masters in January this year and with bidders drawn from Europe, the U.S. and Russia, the sale had an incredible 87% sell-through rate thereby demonstrating the demand for such works. Referring to the growth of this collecting field, Head of Old Master Sales at Chiswick Auctions, Melissa van Vliet, comments, â&#x20AC;&#x2DC;The Old Master market has seen very positive developments lately with â&#x20AC;&#x2DC;The British Art Market 2017â&#x20AC;&#x2122;, a survey prepared by Arts Economics, recording UK sales of European Old Masters as having increased by 16% in value in 2016. This is by far the best performing of the fine art sectors.â&#x20AC;? There is a flourishing market for the best works by minor masters, driven by the demand for quality pieces with strong provenance which are also fresh to the market. Chiswick Auctionsâ&#x20AC;&#x2122; specialist Old Master sales cater to this with Lots sourced from private collections throughout the UK and Europe. As a collecting category, Old Masters has stood the test of time, the reason for which resides in its unique appeal â&#x20AC;&#x201C; when you buy an Old Master, you gain a piece of history. The sale of Modern & Post-War British Art at Chiswick Auctions will take place on April 10th. The sale of Old Master Paintings will take place on May 16th.
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Eighteenth & Nineteenth 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
Newton hearings A Newton Hearing is a case where there is a plea of guilty and the defendant admits the offence but denies the prosecution version of events. A case in which I was involved some years ago raised questions as to the use of this procedure. Asking for a Newton Hearing involves a risk because if the client is unsuccessful he risks losing virtually all credit for his guilty plea. But on a Newton hearing the issue is decided by the judge whereas with a trial the issue is decided by the jury where the chance of being not believed is less. In my case my wife expressed this dilemma as a picture which is included in this book.
The principle of Legality (Proving the Guilty Mind, A traditional approach) This is the title of an article by me referring to the case of B a minor which I commenced in Harrow Magistrates Court and I now believe to be the leading case on strict liability. B, a fifteen year old, had made an indecent proposition to a 13 year old girl on a bus in Harrow. In his own words he ‘asked her for a shiner’. At the time the offence under the Indecency with Children Act was only committed if the girl was under 14. It was accepted in the Magistrates Court by both the prosecution and the Court that B honestly believed that his victim was the same age as he was and that was his defence which I ran. The issue before the Court was whether the case required mens rea, a guilty mind. The Magistrates Court held that it did not. I was no longer involved with the case after the magistrate’s court stage but B was unsuccessful in his appeal to the High Court. However the House of Lords was unanimous that he had a defence. In B a minor Lord Steyn held that the ‘principle of legality’ as the rationale for the decision in Sweet v Parsely. He affirmed Lord Hoffman’s explanation of that principle in ex parte Simms as follows:‘But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is
because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary the Courts therefore presume that even the most general words were intended to the basic words of the individual’ Lord Steyn then said;‘In successive editions of his classic work Professor Sir Rupert Cross cited as the paradigm of the principle the presumption that mens rea is required in the case of statutory crimes. Statutory interpretation. Third edition page 168. Sir Rupert explained that such presumptions are of general application and are not dependent on finding an ambiguity in the text. He said ‘they not only supplement the text, they also operate at a higher level as expressions of fundamental principle governing both civic liberties and the relationships between Parliament, the executive and the Courts. They operate as constitutional principles which are not easily displaced by a statutory text’. In other in the absence of express words, or a truly necessary implication, Parliament must be presumed to legislate on the assumption that the principal of legality will supplement this. The House of Lords has actively encouraged lawyers to adopt its more principled approach to the practise of criminal law.
...other pages will be published in forthcoming the Bill of Middlesex or if you can’t wait, go online: http://issuu.com/benham/docs/the-rise-and-fall-of-legal-aid
34 The BILL of MIDDLESEX