Bill of Middlesex Spring 2017

Spring 2017

The BILL of

Middlesex Official journal of the Middlesex Law Society

The Middlesex Law Society Dinner (See Page 8)

Breaking The Barrier INTERVIEW WITH

Sundeep Bhatia (See Page 9)

Inside this issue:

■ Probate ■ Property Law ■ Finance ■ Legacies

Feel like an office dance-off winner, everyday

Compiling a Contract Pack electronically has never been so enjoyable

Paperless Contract Packs are here with new eCOS from InfoTrack. Our innovative technology empowers you to compile the contract pack (TA6, TA10, title and plan) entirely online. Now you and your clients are able to fill out and sign contracts electronically, all without having to print a single page. Fast, easy and secure - our enjoyable technology gives you and your firm the smoothest moves.

We’re moving conveyancing on. Sign up now.

Visit www.infotrack.co.uk/winner

eCOS

Searches

SDLT

AP1

Land Registry

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

Contents 5

18

ADVERTISING AND FEATURES EDITOR Anna Woodhams

DESIGN AND PRODUCTION MANAGER John Barry

ACCOUNTS DIRECTOR Joanne Casey

MEDIA No. 1458

7

23

8

28

EDITOR Sundeep Bhatia

PUBLISHED March 2017 - © Bill of Middlesex Benham Publishing

LEGAL NOTICE © Benham Publishing.

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

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

DISCLAIMER The Middlesex Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation.

All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.

16

31

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: Dave Debidin and wife, at The Middlesex Law Society Annual Dinner.

Copy Deadlines Summer 22nd May 2017 Autumn 21st August 2017 WINTER 21st November 2017 Anyone wishing to advertise or submit editorial for publication in the Bill of Middlesex please contact Anna Woodhams, before copy deadline.

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

5 7 8 9 13 16 18

INTRODUCTION EDITOR’S COLUMN NEWS INTERVIEW CYBER SECURITY COUNCIL MEMBERS PROBATE

21 22 24 27 30 32 34

PROPERTY LAW FINANCE LEGACIES CONVEYANCING TECHNOLOGY BOOK REVIEW ARTICLES The Bill of Middlesex 3

officers COMMITTEE MEMBERS

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

Past President

OFFICERS FOR 2016/17 President:

Gurmeet Kharaud

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

Fort & Co. Solicitors

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

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

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

(020 170 8433) (DX 5119 Ealing)

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

e-mail: gk@fortsolicitors.com

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

Sundeep Bhatia of

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

Beaumonde Law Practice

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

Pentax House, South Hill Avenue, Northolt Road, Harrow Middlesex HA2 0DU (020 8868 1614)

MAURICE GUYER

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

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

Honorary Treasurer: ELISABETH VAN DER WEIT

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

Professor Malcolm Davies Head of Ealing Law School

PARLIAMENTARY LIAISON

University of West London

Michael Garson

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

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

Maria Fernandes of Fernandes Vaz Solicitors

(020 8904 4900)

87 Wembley Hill Road, Wembley Middx HA9 8BU

e-mail: hameed@hameed.plus.com

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

G Kharaud

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

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

Honorary Secretary

(020 8579 2559) (DX 5104 Ealing)

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

(020 873 30123)

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

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

Stephen Hodgson Lecturer in Law, Ealing Law School

St Marys Road, Ealing W5 5RF

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

EDUCATION & TRAINING PROGRAMME 2016 – 2017

Maralyn Hutchinson of Kagan Moss

Training Sessions TBA See Bill of Middlesex magazine for ongoing events

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

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

University of West London

(020 8231 2406) Honorary Membership Secretary:

See Bill of Middlesex magazine for ongoing events

22 The Causeway, Teddington, Middx TW11 0HF

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

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

Council Members for the Middlesex Area: Central & South Middlesex

Zulfiqar Ali Meerza of Serious Fraud Office (SFO)

Michael Garson of

2 – 4 Cockspur Street, London SW17 5BS

Kagan Moss

(020 7084 4890)

22 The Causeway, Teddington TW11 0HF

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

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

North Middlesex Michael Singleton of Singletons Austin Ryder

COMMITTEE MEETINGS 2017 Mon 16th January

Mon 20th February

AGM Friday 19th May 2017.

Miles Sriharan of Sriharans Solicitors 223 The Broadway, Southall UB1 1ND (020 8843 9974) (DX 119583 Southall 3) e-mail: miles.sriharan@sriharanssolicitors.co.uk

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

Renuka Sriharan of Sriharans

e-mail: michael.singleton@singletonsuk.com

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

Mark Hudson

e-mail: info@sriharanssolicitors.co.uk

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

Alberta Tevie of Sriharans Solicitors

113 Chancery Lane, London WC2A 1PL

223 The Broadway, Southall UB1 1ND

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

(020 8843 9974) (DX 119583 Southall 3)

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

e-mail: albertaot@gmail.com

4 The Bill of Middlesex

www.middlesex-law.co.uk

introduction

President’s Review “The New Year has dawned with hope and brightness. I say this because, as I write this, we have barely completed a month of 2017 and, yet, Democracy, the Rule of Law, the Judiciary and the importance of the Legal profession have suddenly become a focal point in the media and in every household.

Whether a person is Blue or White collar, whether they are involved in a business or in a profession, they have all become curious as to what is going on.

I feel this way because of recent developments regarding the planned departure of the UK from the European Union, (i.e. Brexit).

Finally, Democracy, the Rule of Law, and the Referendum Results are all dependent on the Judiciary and on the Judgment of the Supreme Court.

One may ask, how the Rule of Law and our profession have been magnified by these events? The Lord Chancellor, Liz Truss had indicated that, “our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms” and “the reputation of our judiciary is unrivalled the world over”. I wholeheartedly agree.

We are proud to claim that the Westminster Parliament is the mother of all Parliaments. This statement has been reinforced by recent events. Many may ask, what is in it for us? What we have is the pride of being in the Legal Profession. Democracy, the Rule of Law and the Judiciary all stem from our legal profession.

On the other side of the Atlantic, President Trump’s actions are attracting the attention of the whole world. There, the latest headlines are about his nomination of a Supreme Court Judge and When demand for the services of the legal profession increases, his controversial executive order banning the influx of immigrants because of Brexit, that also brings additional from seven countries. These actions have also That is why remuneration and turnover for the profession. An drawn attention to the Legal Profession and the ordinary high street practitioner, such as myself, may not Judiciary. Therefore, the news of the new year has I feel that be a part of the extra business generated by Brexit but been all about the Rule of Law, the Legal Profession “the New Year we must all feel that if the profession is uplifted from the and the Judiciary.” has dawned top, then this will also uplift the bottom.

We should look at recent events on both sides of the In the USA the controversial President’s Executive Atlantic and feel proud to be in the Legal Profession. with hope and orders are being signed. These orders may affect the In spite of the referendum results, when democracy brightness”. values, lives and liberty of many people and countries. and people power spoke in favour of Brexit, the What do people do to seek relief from the effects of matter now involves The Houses of Parliament. these orders? They look to the Legal Profession in order to seek An ordinary citizen was able to resort to the Judiciary and was judicial redress. This will also increase the demand for the services able to block the Prime Minister from triggering Article 50, without of the Legal Profession.

Parliamentary involvement. In the case of Miller and another v That is why I feel that “the New Year has dawned with hope and Secretary of State for leaving the European Union, the High Court brightness”. gave judgment to the effect that Parliament is supreme and that Article 50 should be debated and dealt with by means of a law to be passed by Parliament. This prevented the Prime Minister’s ARIYA SRIHARAN unilateral right to trigger Article 50.

President, Middlesex Law Society In my opinion, the Prime Minister and the Government were wise e-mail: sri@sriharanssolicitors.co.uk to appeal to the Supreme Court against that judgment. There were reports questioning the Prime Minister’s decision to appeal against the judgment without bringing a Bill to be debated in Parliament.

The Media also questioned the actions of the Government and expressed the view that the appeal was a waste of time and money. The Prime Minister and the Government were wise to appeal to the Supreme Court because they wanted to follow the Rule of Law absolutely. This action has given full endorsement to the Prime Minister’s actions from the people, Judiciary and from Parliament. Now, the British establishment has spoken loudly and clearly in favour of Brexit.

The Bill of Middlesex 5

How modern n legal professiionals work o iManage Work k 10 is the best-in-class document management solution that puts p documents and emaiils at your fingertips, quickly and se ecurely on any device.

• Designed by lawyers for lawyers to makke you more productive • Work smarter e with AI-enhanc AI enhanced features e • Mobile-frien ndly design—work from anywhere • iManage Clo oud—get started fast, migratte easily Ta akee a quick viideo tour of all the new feeaturees of Wo o 10: imanage.com/Work ork k10-MLS.

local news editor’s column

Editor’s Column Welcome to the latest edition of the Bill of Middlesex.

SUNDEEP BHATIA

I

nside the President writes about Brexit, Middlesex Law Society Council Member, Michael Garson, talks about the Competition Market Authority report on the unregulated legal market , there is a report on a legal fair for students held at The Law Society and more photos from our dinner last year.

If you have not or do not do this then you will not be permitted to vote.

So register and get ready to exercise your democratic right!

As some of you will be aware, I am one of three Law Society Council members for Ethnic Minority Solicitors.

SUNDEEP BHATIA

I am coming to the end of my current term and. shortly , there will be elections for those seats.

Editor of The Bill of Middlesex Beaumonde Law Practice.

Law Society Council Member for Ethnic Minorities Chair of the Regulatory Affairs Board of the Law Society

It is important that the voices of BAME solicitors, living in the area of Middlesex, are represented by those three Council Members because the greatest proportion of BAME solicitors live in the Middlesex area.

However you will only be allowed to vote if A You are a Member of the Law Society B You come from a Black Asian Minority Ethnic background.

C You have written to Ross Hutchinson The Law Society Chancery Lane London WC1A 1PL Stating 1 You are a Law Society Member.

2 You are from a BAME background.

2 Giving your firm and it’s address.

3 Giving your solicitor number 4 That you are content to receive emails, letters and communications on the basis of your ethnicity and you would like to vote in the election for the Ethnic Minority Constituency Members of the Law Society Council.

The Bill of Middlesex 7

news

Middlesex Law Society

THE MIDDLESEX LAW SOCIETY DINNERMORE PHOTOGRAPHS The Annual Dinner of the Middlesex Law Society was held, in conjunction with “The Association of Sri Lankan Lawyers in the UK”, at the Marriott Hotel Heathrow on Friday 11th November 2017.

We featured the Dinner in our last edition.

However there were a number of photographs which we could not feature in that issue.

We have, therefore, featured them in this edition.

pic: Dave Debidin and wife.

pic: Michael Garson (Council Member) and Chief guest’s husband.

pic: Neeta Deesor- The past President.

pic: The winner of the top raffle prize- Sam Goodman (Barrister).

pic: Saying Grace before dinner.

pic: The Toastmaster making announcements at the evening.

pic: Sam Goodman (Barrister) receiving the Gold Jewellery from RPS jewellers.

8 The Bill of Middlesex

interview

Breaking the barrier Sundeep Bhatia, Editor of The Bill of Middlesex, and one of the Council Members for Ethnic Minority Solicitors, was recently interviewed for the Ethnic Minority Lawyers Division section of The Law Society website concerning his appointment as Chair of its Regulatory Affairs Board.

Q&A with Sundeep Bhatia - Chair, Law Society Regulatory Affairs Board Congratulations on your appointment as chair of the Law Society Regulatory Affairs Board (RAB). You are the first BAME person to chair a board, do you see it as a positive statement by the Law Society in its drive to increase diversity in its volunteer community?

• Hold meetings out of hours or on weekends.

More needs to be written openly about the work of boards and committees in publications aimed at BAME members so that people are more aware of the work that is done and about an application process which is fair and inclusive.

Thank you. I certainly do. I have been a Law Society Council member since 2010 and have gradually seen the diversity profile of Council improve. My appointment as a board chair is a natural progression of that process. It is a positive statement by the Council of the Law Society who are all members of its voluntary community. However, I would like to think that I was appointed, firstly and foremostly, on the basis of merit.

What should the Law Society do to encourage more BAME volunteers?

I hope that I will be a role model for others to follow.

That is long overdue. It will happen and I hope that it happens whilst I am still a member of the Law Society Council. If it does happen then it will be the clearest evidence that the Law Society is becoming more diverse

What made you want to become a volunteer?

In 2005 I was a sole practitioner specialising in Legal Aid criminal defence work when the government proposed price competitive tendering for the first time. I realised the effect this would have on BAME law firms, including my own, and the communities which we serve.

I therefore became involved in campaigning via the Society of Asian Lawyers. I was its chair from 2008 to 2010 and began working alongside the Law Society. When a seat on the Law Society Council for one of the ethnic minority constituency seats - became vacant, I applied and was elected unopposed.

What has been your experience of being a Law Society volunteer?

It is amazing and enriching, I am a better lawyer and human being for the experience: • I have learned how to work on committees and boards and how to represent a constituency. • I mingle with solicitors from every background and am aware of what is going on in the profession. • I present conferences, functions and have taken part in web seminars. • I have helped to ensure that the concerns, worries and interests of BAME solicitors are taken into consideration when Law Society policy is developed.

My experience as an Employment Law Committee member allows me to be fully aware of developments and to contribute to the future of my chosen area of practice.

Please see my answer the last question.

The Law Society has elected a number of female presidents - do you envisage one day we will have an elected BAME president of the Law Society?

PRO OTEC T Y OUR BUS S INES S FRO OM CYB BER THR REAT S 5 W E E G U U Q H [Q W T D W U K P G U U U V C T V U Y K V J U G E W TG Y Q TM Ć” Q Y U VIPole l un nites it all ll off your daily d il communications i tions and advanced d security tools in one encr ypte ed platfrom VQ GPUWTG EQORNGVG UCHGV[ QH [QWT FCVC

Encryp ypted commu unications & data a storage g $WKNF KP RTKXCE[ TGĆ“PGF WUGT EQPVTQNU Ad dvanced security y and compliance c tools Dep ployed on-prem mise or in the cloud

What are your 3 highlights of being a Law Society volunteer? • Being appointed chair of RAB. • Attending the Opening of the Legal Year. • Co-hosting the Minority Lawyers Conference at Chancery Lane.

There is perception that BAME members are put off volunteering because the Law Society is not inclusive and because of the time commitments what do you think we should do to overcome that perception? • Improve remote facilities so that volunteers do not have to travel to Chancery Lane to participate in meetings in a meaningful fashion.

Full ull-ffeatured trial available ble

For more details, ils, please contact VIP Pole Team

EQPVCEV"XKRQNG EQO QT XKUKV YYY XKRQNG EQO

The Bill of Middlesex 9

news

A BEGINNERS GUIDE TO HOW THE SOLICITORS PROFESSION IS REGULATED The first thing to say is that only six areas of legal work are regulated.

These are 1 The exercise of a right of audience (i.e. the right to appear before a court, including the right to call and examine witnesses)

Observing the best interest of the client and the duty to the court.

2 The conduct of litigation - This is defined as the issue of proceedings before any court including the commencing, prosecuting and defending of those proceedings as well as ancillary functions in relation to those proceedings.

2 Regulatory powers are vested in The Legal Services Board who have the power to devolve to frontline bodies, now called approved regulators, subject to their competence and governance arrangements.

3 Reserved Instrument Activities. Preparing any instrument of transfer or charge for the purposes of the Land Registration Act 2002.

In the case of the solicitors’ profession the approved regulator is the Law Society.

4 Probate Activities 5 Notarial Activities 6 The administration of oaths.

If an area of activity is outside of these six headings, then anyone can, theoretically , practice them regardless of whether they hold a professional title.

That is why there are “will writers” and some employment law “specialists” who do not hold Professional title.

It may be of interest to learn that anyone can call themselves a lawyer whether they are regulated or not!

The current structure of the solicitors Profession is derived from recommendations in Sir David Clementi’s review of the Legal Profession which was published in December 2004.

These were enshrined in the Legal Services Act of 2007.

His recommendations were as follows 1 The establishment of a Legal Services Board, independent of government This Board was created and remains in force That Board has eight regulatory objectives.

These are 1 Promoting and protecting the public interest 2 Supporting the constitutional principle of the rule of law.

3 Improving access to justice 4 Protecting and promoting the interests of consumers 5 Promoting competition in the provision of services in the egal sector.

6 Increasing public understanding of citizens’ legal rights and duties.

7 Promoting and maintaining adherence to the professional principles of

Maintaining client confidentiality.

However, all frontline bodies were required to make governance arrangements to separate their representative and regulatory functions.

In the case of the Law Society, this has led to the creation of the Solicitors Regulation Authority, (SRA), which is operationally independent but which is a part of the Law Society group.

3 The recommendations of Sir David have also led to the creation of “The Office of Legal Complaints” which is a single independent body established to handle legal complaints.

4 Finally the Legal Services Act has allowed the creation of Alternative Business Structures which allow for different types of lawyers and non-lawyers being able to manage and own legal practices.

Solicitors can currently only work within entities regulated by the Solicitors Regulation Authority.

However, last year the SRA published controversial proposals regarding giving solicitors the option of working in unregulated entities to perform unregulated legal work without compulsory insurance or supervision.

The Competition Market Authority has endorsed this idea and encourages total separation of representative and regulatory bodies.

Longer term, it also envisages a regulatory system founded on areas of work rather than professions.

Watch this space!

Independence and integrity Proper standards of work

"The AGM of the Society is due to take place on

19th May 2017.

More details will be sent out shortly.Please keep this date free"

10 The Bill of Middlesex

news

London Law Fair

The fourth annual London Law Fair, took place at Chancery Lane on Wednesday November 30th, 2016.

The London Law fair is the only regional law fair that specifically aims to increase diversity in legal sector recruitment.

The London Law Fair Consortium, which established the fair in 2013, is a group comprising representatives of half a dozen modern university academic law departments joined by partners from a range of law firms and legal sector career advice organisations. The group is supported by Diversity and Community Relations Judges. For the past three years, the event has been organised with the assistance of the Law Society’s Events Team.

Over a thousand mainly first and second year undergraduate law students who aspire to gain employment in the legal sector registered for one of two (morning and afternoon) sessions, where they were provided with opportunities to speak with representatives of law firms, public service legal departments, other legal sector employers or legal education and training providers. The 2016 fair saw a record number of law firms, several of which had returned to the fair for the second or third time.

Exhibiting law firms and other employers gained the advantage of being seen by tomorrow’s young lawyers as genuinely demonstrating their commitment to diversity within the legal sector.

Participation provided exhibiting firms a means of engaging with and informing students, often from less privileged social backgrounds, about the ethos of their firms and the challenges and rewards accessible to those with the ability and determination to contribute to legal practice.

advice about how to overcome perceived barriers to professional legal qualification and employment of ethnic and other minority applicants. Speakers gave comments and tips on how law students can market themselves effectively to employers and tried to provide an informed picture of a hugely varied legal employment landscape, undergoing an unprecedented period of competition and change. Law students were particularly interested in hearing speakers’ views on what skills and abilities they need to find a place in the law and to adapt to the emergence of new legal sector entities, including globalized and internet-based providers.

One particular feature attracting law students to the fair was the provision of an all day book-able CV clinic. The clinic was staffed by expert advisors, not only from university careers advice staff, but also from Tuckers Solicitors, the Law Society’s Ambassadors Programme and the Aspiring Solicitors organisation.

Associate Professor Susan Scott Hunt, a member of the Middlesex Law Society’s committee, has chaired the LLF Consortium for 2015 NS 2016. Sundeep Bhatia, principal of Beaumonde Law Practice and Law Society Council Member for Ethnic Minority Solicitors, was a member of a panel of speakers who addressed law students. For further information about the London Law Fair, feel free to email s.scott-hunt@mdx.ac.uk.

Throughout the day, law students were able to attend panel discussions featuring legal professionals whose personal stories and careers paths qualified them to provide information and

The Bill of Middlesex 11

cyber security

FIGHTING BACK AGAINST THE FRIDAY FRAUDSTERS The digital world offers a seemingly unending stream of opportunities for criminals to enrich themselves at the expense of others.

The legal profession, routinely dealing as it does with the most sensitive of financial affairs, is a tempting target for the scammers.

One of the latest forms of internet crime to hit the headlines is conveyancing fraud – or so called “Friday Afternoon Fraud” - involving the fraudulent diversion of wire transfers into bank accounts under the control of scammers. Typically, the crooks strike just before a weekend or a bank holiday, hence the catchy sobriquet. The sums of money involved are substantial and the risks minimal. Little wonder that is one of the fastest growing online frauds.

A typical case will involve the victim being contacted on the day of exchange, apparently by their solicitor, informing them of a change of bank details for the transfer of funds. The emails appear absolutely genuine, and include all the correct names and references. But in reality, the email is a fake; the fraudster has intercepted legitimate email exchanges and has been patiently monitoring activity, waiting for the right moment to interject false transfer information. Once money hits the criminal's account, it is instantly transferred to a network of other accounts all over the world, where Encryption is it effectively becomes untraceable.

powerful

product offers full end-to-end (e2e) encryption across not just messaging, but voice calls, video conferencing and file sharing.

In developing VIPole, we took a completely different approach,” says Miller, “Starting from the basic concept of an encrypted team collaboration tool, rather than a personal messenger with encryption added as an afterthought.” Unlike most other apps, IT administrators can manage teams of users, with a high degree of control over how they can use the system. “For example,” says Miller, “We can give individuals the ability to read but not share certain files, or deny access from devices outside the corporate network”

The reason is that it’s not just emails that are vulnerable to unauthorised access. “Unencrypted data stored on mobile devices and even a company’s own server also represents a potential threat. Research has shown that 42% of all commercial data loss incidents involve a company’s own personnel, either acting maliciously or accidentally.” VIPole protects this data as well, and gives a administrators the power to remote wipe sensitive data from weapon devices that have been lost or stolen.

As is common in electronic crime, it is the humble against fraudsters, email that provides the entry point for the However one familiar feature that VIPole shares with other criminals. Emails are typically sent as plain text but only if it can popular apps is ease of use. Miller continues, “An effective across networks, making them easy to eavesdrop system must not complicate communications, and it must be properly once a network has been compromised. Private provide all the tools needed within a single e2e encrypted individuals are the least likely to be security-aware, implemented, platform. And, obviously, it has to have the ability to making them easy targets. Home WiFi networks effectively facilitate external communications with clients within a with poor security; “man-in-the-middle” attacks secure environment.” managed and trapping unwary users attempting to connect to Rather than relying on usernames and passwords, easily used. free WiFi hotspots in public spaces or malwarealgorithms ensure that messages remain secure, that the infected downloads are all used to listen out for sender and recipient are who they appear to be and that nobody else is key words and phrases that alert the crooks to potential property listening in to that conversation. End-to-end encryption ensures that transactions. nobody – not even the software provider - is able to break into The modern-day ubiquity of email was driven by its convenience, and conversation or create fake IDs or messages. “That,” comments many people now use instant messaging for exactly the same reason.

Christopher Miller, “Stops the Friday Fraudsters dead in their tracks.”

Popular apps such as WhatsApp are convenient and easy to use, and But what about the potential legal implications of sharing confidential as a bonus, many are increasingly using encryption techniques to client information over a public cloud service such as WhatsApp? VIPole prevent messages being intercepted. Encryption encodes network traffic has a simple solution; it offers an on-premise package that enables so that only sender and recipient can unscramble the original data. firms to run the service completely in-house on their own server to Given the apparent benefit, it may appear odd that the business world create their own private, strongly encrypted messaging eco-system. appears slow to catch on to this important development. However there Firms are able to connect clients to their secure system as easily as are reasons for this, as VIPole’s head of development, Christopher Miller sharing an email address, but without compromising security. The explains; VIPole client software is available as a free download for all platforms “Encryption is a powerful weapon against fraudsters, but only if it can be (iOS and Android, as well as Linux, Windows and Mac OSX), so anyone properly implemented, effectively managed and easily used. End-to-end can start using it without having to buy equipment or install complicated (e2e) encryption of traffic is the minimum requirement, but many software. messengers do not meet this standard. Of those that do claim to be Moving to encrypted communications brings another benefit for legal e2e, question marks remain over how confidential data transiting across professionals. With the greater publicity around conveyancing fraud third-party cloud servers actually is. For example, WhatsApp claims to creating anxiety in the market, the ability to guarantee secure be e2e encrypted, but admitted last year that it shares user data with communications with its clients and restore confidence, gives it an parent company Facebook to profile users for marketing purposes.” obvious marketing advantage, as well as closing the door firmly on the In 2013, VIPole, a UK-based software developer, set out to develop an criminal aspirations of the Friday Fraudsters. instant messaging system that combined ease of use with enterprisegrade security, collaboration and administration tools. The resulting

The Bill of Middlesex 13

news

Game of Drones Once the preserve of science fiction, unmanned aerial vehicles or “drones” are rapidly becoming commonplace throughout England & Wales.

From competitive flying, to accessing and inspecting remote parts of land and buildings, to airborne delivery of goods (Amazon claiming its first successful trial in this field in December 2016), the private use of drones continues to skyrocket.

meaning that the extent of proprietary rights enjoyed by neighbouring landowners is clear in such cases – from what it called “the difficulties posed by overflying aircraft or balloons, bullets or missiles”, in relation to which it said “it may be that certainty cannot be achieved”.

Justifiable concerns have been raised about the impact private commercial and recreational drone use might have in terms of privacy, the regulation of controlled airspaces and safety. But what of the private rights of landowners, who happen to lie in their flight paths?

It would seem therefore that, in contrast to the situation where articles attached to land A encroach into the airspace above land B - which should almost invariably be a trespass - the flying of drones from land A over land B’s airspace will not always be actionable. Regard will have to be had to the Lord Bernstein formulation: specifically, whether the airspace affected forms part of the airspace necessary for the ordinary use and enjoyment of the land thereby affected.

Trespass Perhaps the most obvious and direct cause for complaint is that those flying drones above neighbouring lands and beyond may be committing trespasses against the landowners.

The decision in Lord Bernstein v Skyviews & General Ltd [1978] QB 479 made clear that a landowner’s rights do not extend to an unlimited height above his land, but rather extend only to such airspace as is “necessary for the ordinary use and enjoyment of his land and the structures upon it”. Accordingly, in that case, it was held that the flying of aeroplanes “many hundreds of feet” above the claimant’s property that “in no way affects the user of the land” did not cause an actionable trespass.

Of course, drones typically remain much closer to the ground than the average light aircraft. One might suppose, therefore, that had Lord Bernstein been troubled by drones passing, or hovering, over his land, rather than by aircraft, a claim to injunctive relief might have succeeded. Certainly it seems easier to envisage real and substantial interference with the ordinary user of the land in such circumstances.

It remains to be seen how the courts will analyse and apply this law in any given case, and it is difficult to speculate in the abstract. In practice, a distinction may be drawn between drones which fly or hover a short distance above residential gardens - the ordinary enjoyment of which normally does entail a degree of free space and air - from cases where drones are being flown at greater height, over the top of tall commercial buildings for example.

Nuisance

The second most likely cause of action that may arise from drone usage is nuisance. Whilst the exact boundary Perhaps the most between nuisance and trespass may at times prove obvious and direct fine, in essence trespass involves direct entry onto land B, whereas nuisance concerns some condition cause for or activity carried out on land A that unduly complaint is that those flying drones interferes with the use or enjoyment of land B and/or causes disturbance or annoyance. In an appropriate above neighbouring lands case there may, of course, be some overlap.

and beyond may Although trespass is “actionable per se” (i.e. it is not necessary to demonstrate injury), nuisance requires be committing At first blush the flight of drones over a trespasses against proof of some special damage. Activities that neighbouring property seems more closely generate excessive levels of noise are classic the landowners. analogous to the facts of Anchor Brewhouse examples of nuisance. One can readily envisage Developments Ltd v Berkeley House (Dockland complaint being made along these lines in respect Developments) Ltd [1987] 2 EGLR 173 in which a developer of the noise generated by drones. Moreover, that may be so allowed cranes to oversail the neighbouring claimants’ properties during the course of works. The cranes were left free- even if their flight-paths do not take them directly across neighbouring land in such as way as to amount to a trespass. swinging when not in use. In granting an injunction, the court observed that the developer had, by these acts, interfered with Technology may have come on greatly since the decision in Hall the claimants’ rights to possession of the airspace above the v Beckenham Corp [1949] 1 K.B. 716, in which complaint was claimants’ lands (which only the claimant landowners were made of the noise caused by model planes, but the parallels entitled to take into actual possession all else being equal). and potential for complaint are obvious. Drones commonly generate noise when hovering and/or flying. Equally, persistent However, the court was at pains to distinguish the situation of observation and/or photography of neighbouring land may itself structural overhanging (including cranes attached to amount to an actionable nuisance (on which, see further the neighbouring land, and signs and other overhanging parts of decision in Lord Bernstein). buildings) – which it said did amount to a trespass in all cases

14 The Bill of Middlesex

news

Ciara Fairley

James Tipler

Defences is a potentially major restriction. Equally, Article 95 would prohibit Suppose a claim is brought in nuisance or in trespass and an flight over, or within, 150 metres of any congested area, save in injunction sought to restrain the relevant drone activity. In order accordance with a permission issued by the CAA. In practice, to defend that claim, the drone operator would need to show therefore, the defence afforded by section 76 of the Act may some lawful authority for his acts. This would typically be demonstrated by reference to a licence agreed with the affected prove to be of rather limited utility given the ways in which consumers have thus far sought to use drones in urban and landowner. Such licenses are now common practice in the suburban settings - save for those presumably rare cases where context of oversailing by cranes at development sites and one the blessing of the CAA has been sought and given. can envisage a similar development in this context. But such authority might also be founded on the existence of an Drone operators should also be mindful of s.76(2) of the Act, easement (for example, an easement conferring a right to emit which imposes strict liability upon the owner of any aircraft in noise from the operator’s land). Given the novelty of the respect of “material loss or damage” that is “caused to any technology involved, prescriptive claims are likely person or property on land or water by, or by a to be a rarity for the time being; and in all cases person in, or an article, animal or person falling from, Drones will much will depend on the specific use an aircraft while in flight, taking off or landing”. generally be contemplated, its interaction with the statutory Conclusion regulation of drone activity and the particular categorised In Lord Bernstein’s case, Griffiths J observed that circumstances of the case. For now, the astute as “small “the problem is to balance the rights of an owner to operator would be well-advised to explore unmanned enjoy the use of his land against the rights of the consensual agreement for such rights. aircraft” in the general public to take advantage of all that science A further defence can be found in section 76 of now offers in the use of air space.”

Civil Aviation the Civil Aviation Act 1982 (“the Act”), which Authority’s Those remarks were, of course, made in the context provides that: of light aircraft. As technological advances open up designation No action shall lie in respect of trespass or in the airways to an ever wider range of users, respect of nuisance, by reason only of the flight including drone operators, the same problems will of an aircraft over any property at a height above fall be addressed afresh. Inevitably the law will have to develop the ground which, having regard to wind, weather and all the in response to developments on (and above) the ground. As circumstances of the case is reasonable, or the ordinary operators of drones clash with neighbouring landowners, the incidents of such flight, so long as the provisions of any Air stage seems set for arguments over the extent of permissible Navigation Order… have been duly complied with [...] interference in the modern era. Watch this (air)space.

Drones will generally be categorised as “small unmanned aircraft” in the Civil Aviation Authority’s designation (as defined Ciara Fairley in Schedule 1 of the Act). In respect of any “aircraft”, section 76 James Tipler provides an apparently broad based defence against actions arising from the flight of the same over property at a BARRISTERS, FALCON CHAMBERS “reasonable” height or from the “ordinary incidents” of such flights. Queries may well arise as to what is “reasonable” as regards drones and the extent to which this statutory defence may be available.

However, this point becomes somewhat academic given the overriding need to comply with any relevant Air Navigation Order. The Air Navigation Order 2016 (“ANO 2016”) came into force on 25 August 2016. It contains a variety of restrictions which drone operators need to observe, in default of which they cannot rely on the statutory defence set out in s.76(2). Full consideration of the requirements of the ANO 2016 is beyond the scope of this article. But it is worth noting that Article 95 of the ANO 2016 expressly prohibits the flying of any drone with surveillance capabilities within 50 metres of a structure that is not under the control of the pilot without permission. Since most drones have surveillance equipment in the form of cameras that

The Bill of Middlesex 15

council members

Council Member’s Report Lighting fuses In December the Competition and Markets Authority (CMA) published the final report on its Market Study on legal services. In the last edition of the Bill I commented, about the CMA’s interim report, that the narrow lens of its remit, that is focused on ‘competition theory’, limits the usefulness of this work.

The CMA primarily seeks to promote competition for the benefit of consumers; its mission statement states ‘The CMA makes markets work well in the interests of consumers, businesses and the economy. It therefore tackles every problem on the basis of economic theories and does not set out to validate its recommendations against all the needs of the particular environment or situation it is addressing.

SRA are working on how this will be delivered as they must develop new standards for disclosure of price, service, redress and regulatory complaints records, as well as ensuring compliance. It is believed that publication of this kind of data will also facilitate the development of Digital Comparison Tools with the result that there will be more sites where consumers can compare providers of legal services as they do in other markets.

The CMA finds that ‘competition in the legal services sector for consumers and small businesses is not working well’ and it therefore believes remedial action is required. The chart below suggests that, currently, the sector shows poor quality outcomes, high prices, stifled demand, innovation and new market entrants, lack of consumer trust and redress. These sweeping conclusions are not specially aimed at the solicitors’ profession, or the Bar, who are each subject to statutory regulation, but may be looking at a wider market including a growing sector of unregulated legal businesses. The solutions proposed aim to ensure better information for consumers, changes in regulation, and the protection given by it, as well as the removal of market barriers. This is not new. It continues long standing policy.

2. Regulators are to encourage providers to engage with quality signals, such as online reviews and comparison websites and provide guidance on how to engage with online reviews.

The 2001 OFT report (OFT 328), ‘Competition in professions’ required changes on the basis that self regulation by the professions imposed too many self-serving restrictions: ‘Restrictions may be justified under competition law if they are in the public interest, if they serve economic progress, if the benefits are shared with consumers and if the restrictions do not go further than is necessary or eliminate competition.’

The Clementi Report, and the Legal Services Act 2007, established a new regime with separation of regulation, in our case, with the SRA. Restrictions were radically reduced and, with the 2011 SRA Handbook, most rules were replaced with outcomes. Since then deregulatory measures, costly to the profession, have followed regularly twice a year. Yet, according to the latest CMA study, not much has changed.

The CMA final report confirms that consumers find it hard to make informed choices because there is little transparency about price service and quality – it was found that only 17% of legal services providers publish their prices online.

The CMA believes that increasing transparency of price, service and quality is necessary and this will increase competition so that consumers get a better deal. Is this analysis right and can the CMA point to relevant market evidence which is comparable with the selection of legal issues that their study covers?

The recommendations aimed at improving transparency are: 1. Regulators are to introduce new minimum standards regarding the information that lawyers provide to their customers on websites, and in person, so as to facilitate shopping around. ‘Providers will, for the first time, have to provide prospective clients with information as to the price and service they can expect, at the point it matters’. The

16 The Bill of Middlesex

3. Regulators are to work together to adopt a consistent approach with the potential for a single digital register across regulated professions.

4. Regulators are to develop the content of the existing Legal Choices website and more must be done to promote it.

The CMA places importance on helping consumers with their choices by ensuring that they have relevant information; by means of encouraging service providers to engage in quality comparison; by facilitating comparison through open data and by means of ongoing regulatory changes.

The CMA extended the remit of the review to look also at the regulatory framework for legal services and, whilst there was no finding of any major barrier to competition, they express concerns about the sustainability of the current regulatory ,2007 Act, model which does not extend its reach into the market of unregulated providers where legal services are increasingly offered.

There is a strong recommendation for government to consult on the separation of legal services regulators from their representative bodies. ‘Our main concern is that the current, title-based model is insufficiently flexible to apply proportionate, risk-based regulation which reflects differences across legal services areas and over time.

We therefore propose that the government launches a review of the regulatory framework with the aim of making the regulatory regime more flexible and risk-based in the long term. We also consider that regulators should be independent from government and representative bodies. The number of regulators should be a consequence of the regulatory structure; moving from a model that is primarily title-based to a risk-based model is likely to lead to a reduction in the number of regulators.’

This debate is likely to focus around whether the SRA should operate as an independent regulator or whether there should be a merger of regulators for many, if not all, of the legal professions. The current framework set by the 2007 Act established the position that the delivery of regulatory functions must be separated from representative bodies. The operational separation of the SRA, from the Law Society, has been further bolstered by Internal Governance Rules laid down by the Legal Services Board (LSB). Furthermore, the SRA, encouraged by the LSB, has followed a deregulatory

council members agenda though its red tape challenge and regular changes to the SRA Handbook. The latest CMA study suggests that, despite all this reform, not much has changed and, given the proliferation of regulators and a variety of approaches, it now suggests the regime may not be sustainable for much longer.

The SRA would wish to obtain legal independence, have no accountability to the profession and to be able to maintain their role in authorising the use of the solicitor title. In addition, they currently wish to extend their jurisdiction into the wider unregulated market where solicitors would be permitted to work under a new SRA Code for Solicitors. The key change, which is supported by the CMA is to remove the restrictions that currently prevent solicitors from delivering non-reserved legal services to the public or sections of the public through an alternative legal services provider, while using their solicitor title.

The SRA’s proposal is that ‘Solicitors who work in alternative legal services providers and decide to provide non-reserved legal services to the public will be subject to the new individual Code. They will be required to make sure that their clients understand whether and how the services the solicitor provides are regulated and about the protections available to them. This aligns with the proposed requirement placed on regulated firms where they will need to tell consumers that they will be covered by the SRA Compensation Fund and Professional Indemnity Insurance (PII) cover’.

However, the CMA would require a market regulator to set the minimum standard necessary to provide consumer protection and might favour the award of professional titles being controlled by the professional bodies. The SRA’s position would not align to this view as it sees its reforms as paving a way forward to an extension of the reach of the profession. The SRA considers that its changes ‘will help to strengthen the overall solicitor 'brand'. With increased visibility and accessibility to competent solicitors, consumers can choose a

qualified professional when that is what they want or need. Ultimately, the solicitor brand will stand or fall on whether it remains relevant, and that brand will be strengthened if the reputation for excellence is matched by actual consumer experience.’

It seems to be a feature of the legal profession in England and Wales that it has, since 2002, faced continuous disruption with cyclical jolts to the structure of the legal framework. Whilst the CMA is described as an independent non-ministerial department, there can be little doubt, given the publication by the Treasury of it statement in December, of the Treasury’s plan to reduce household costs via initiatives including reform to regulation competition in core legal markets, that they are the ‘interested parties’ referred to in the report as triggering this Market Study.

The Treasury stated ‘A regulatory environment that encourages innovation is an essential foundation of a dynamic economy.…

Markets that are liberalised and deregulated are more productive.

For example, liberalisation and regulatory reforms which introduced competition into the UK electricity, gas, and water industries are thought to have driven productivity growth of over 10 per cent a year.

However, a number of markets in the UK are still held back by regulation that constrain competition and productivity growth….’ And ‘The government will launch a consultation by spring 2016 on removing barriers to entry for alternative business models in legal services, and on making legal service regulators independent from their representative bodies. This will create a fairer, more balanced regulatory regime for England and Wales that encourages competition, making it easier for businesses such as supermarkets and estate agents among others, to offer legal services like conveyancing, probate and litigation.’

This timetable was delayed by the Brexit referendum but the agenda remains unchanged. The intervention is viewed with a measure of disbelief by many competitor jurisdictions and the real harm is

GENEALOGISTS AND INTERNATIONAL PROBATE RESEARCHERS Phone: 020 7832 1430

I am a Solicitor

Email: info@fraserandfraser.co.uk

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

The Bill of Middlesex 17

probate

Ilott v Mitson The role of insurance

The landscape surrounding the legal framework that currently applies to disappointed beneficiaries is potentially about to change. A landmark judgement from the Supreme Court in the Ilott v Mitson case is expected to clarify the position with regard to the application and scope of the Inheritance (Provision for Family and Dependents) Act 1975 (the Act).

In anticipation of this decision there has been a noticeable increase in the number of Personal Representatives seeking cover for potential claims under the Act.

they were treated as the deceased’s child or were being maintained by them? Insurers might decide to exclude claims by them from the policy or if cover is required for such claims, extensive underwriting would need to take place and if the insurer is comfortable with the risk, it will have implications on the level of premium.

By way of an abridged reminder, Melita Jackson died in 2004, leaving the majority of her estate (approximate value of £500,000) to three charities – RSPCA, RSPB and Blue Cross.

Consequently, most policies provide cover more for the comfort She was estranged from her daughter, Heather Ilott, and had of the Personal Representatives ie where there are no known omitted her from her will (leaving two side letters explaining her potential claimants but where there is a desire to distribute the decision). Consequently, Mrs Ilott made a claim under the Act estate more expediently and not to wait for the time for making and received £50,000. A subsequent appeal by the charities claims under the Act to expire. Under the Act a quashed this award. Mrs Illot took the case to the potential claimant has six months from the date of Court of Appeal, which overturned the judgement The Supreme the grant of representation to make their claim but and awarded her the funds to purchase her Court’s ruling on also has an additional four months to serve papers property and a capital sum on top (approximately the appeal on the Personal Representatives, so it could be up £163,000 and £20,000 respectively). The Supreme against that to ten months before an estate becomes aware of Court’s ruling on the appeal against that decision decision is where any claim. It is worth noting that the Court has is where we have arrived at now. discretionary powers to permit applications after the we have arrived So where does this leave us in terms of possible six-month period, so the potential period may be in at now. insurance solutions? As a rule, insurers are wary of excess of the ten months. indemnifying estates where a known individual, in So how is the legal profession dealing with the the specified classes of potential claimants under situation? In many instances, it is difficult for a Personal the Act, has been omitted from a will. This is especially true if Representative, especially a professional one, to be certain that the individual omitted is a child of the deceased. While this was the case prior to the Ilott case, it has become even more difficult there are not individuals who would be entitled, or believe they should have been remembered, even if there is no suggestion of to secure cover since, in light of the outcome of the case and a potential claimant. As a result, some professional Personal given the intense media coverage surrounding it.

Representatives in particular can be reluctant to allow funds to This is understandable, given that a policy will typically seek to be distributed within the ten month period. However, peace of protect the insured (normally the Personal Representatives but mind policies that allow early release of funds to beneficiaries can be extended to include the residuary beneficiaries as well) and remove the risk to Personal Representatives of personal from the moment a claim is received by the insurer, whether it liability in the event of a successful claim under the Act, after the has merit or not. As such, and as can be seen starkly in the Ilott distribution of the estate, can provide comfort and certainty in case, the time involved and costs of defending such a claim are uncertain times. not insignificant. While this is the first Inheritance Act claim to We eagerly await the Supreme Court ruling in the Ilott case and reach the Supreme Court, litigation and settlement costs can be its implications for Personal Representatives and their insurance financially onerous, especially after the distribution of the estate. options going forward.

In light of the above, an insurer has to consider the approach in relation to the extent of cover a policy will provide. For example, Neil Kevan if a deceased had remarried and the new spouse had children Trust & Probate Underwriter, Legal & Contingency Limited from a former marriage, might they be entitled to claim because

18 The Bill of Middlesex

probate

THE ASSOCIATION OF PROBATE RESEARCHERS (APR) TAKES THE FIRST STEPS TO REGULATION IN THE HEIR HUNTING INDUSTRY

The Association of Probate Researchers (APR) was formed in response to the lack of regulation in the Probate Research (Heir Hunting) industry.

Neil is a partner at Fraser and Fraser, the research firm who have featured most prominently on BBC One’s Heir Hunters programme for 10 consecutive series. After several years of looking at ways to promote regulation, Neil is delighted to announce that APR (which was incorporated in June 2016) is now a recognised body under the Professional Paralegal Register (PPR). APR’s new status is set to benefit its members, allowing them to hold a PPR practising certificate whilst they follow APR and PPR guidelines.

The probate research industry is unregulated and APR was set up as a voluntary, self-regulatory body which aims to raise standards and to offer protection to beneficiaries from hobby genealogists and enthusiast amateurs. APR protects consumers (beneficiaries) from firms and individuals who believe that, after having watched the TV series, they can become probate researchers with very little or no legal training and experience. In the past few years there have been several cases of fraudsters posing as Heir Hunters resulting in millions of pounds being stolen from members of the public. This is just the tip of the iceberg.

PPR was launched in 2015 by the National Association of Licensed Paralegals (NALP) and the Institute of Paralegals (IoP).

The PPR was set up in direct response to the Legal Education and Training Review (LETR) in order to regulate paralegals and only recognise those who provide the highest of standards. APR is the fourth body to be recognised by the PPR and the only body for Probate Researchers or Heir Hunters.

Commenting on this development, APR Chair Neil Fraser said: “APR is the only Recognised Body for Probate Researchers that has access to a compensation scheme and an independent complaints procedure. We are proud to be working alongside the PPR to enhance the status of Professional Paralegals. Our members will at last be able to have their professional status recognised, this is only the beginning in order to justly regulate the industry, but it is a huge first step.

“Beneficiaries can be comforted by the fact that our individual paralegal practitioners are regulated and backed by a compensatory scheme, an industry first.”

Rita Leat, Managing Director of the PPR added: “We are delighted that APR is now a Recognised Body under the PPR. The probate research profession have been among some of the unsung heroes offering legal services and we welcome them as Professional Paralegal Practitioners. The PPR is the voluntary regulatory body for all legal service providers who work in the unregulated sector. It provides a robust but proportionate set of regulatory standards with a compensatory scheme available to consumers when things go wrong.”

The APR is in talks with several of the leading firms in the industry and hope to announce more members in near future.

All APR members sign up to the professional ethics and code of conduct. Members benefit from: Inclusion on the Register held by the PPR; the ability to apply for Paralegal Practising Certificates which provide regulation that until now has been missing from the industry. The APR has an independent compensation scheme, which has been setup to promote regulation, protect fellow members of the legal industry, and more importantly reassures the general public and beneficiaries that they can turn to an authoritative body if they have been taken advantage of.

The Bill of Middlesex 19

probate

The industry is changingA new approach to genealogical research Recent media coverage has seen a number of high profile cases reported which have highlighted how clients have paid more than they should have for legal services.

At Title Research we understand that this means that we need to adapt This has resulted in growing pressure on legal firms to make their client the way in which we offer our services as well, which is why we have proposition as transparent as possible and, where possible, to offer listened to feedback from our clients and have introduced a new fixed fee services on a fixed fee basis. pricing structure to deliver even better value for money.

One such case saw the Legal Ombudsman rule that a solicitor should We now offer fixed fees to locate missing beneficiaries and refund £34,000 of the £37,000 fee that their client signed under That’s why we reconstruct family trees – not only in England and Wales, but a contingency fee agreement (CFA). The Ombudsman ruled believe that any also in overseas jurisdictions as well. If we are unable to locate a that the client had not been properly advised about the terms service we offer missing beneficiary, we will provide a quote for insurance to and effects of the CFA when signing a contract relating to work should be protect against future claims. In the unlikely event that we can’t in a probate dispute case. priced fairly, do this, we will waive our research fees completely so you won’t After a small amount of work had been completed and paid transparently pay anything. for, the client could not afford to pay any more upfront fees and wherever Tom Curran, Chief Executive at Title Research said: having been told that the litigation could cost up to £35,000. possible, on a She then agreed to pay the firm 20% of any damages that they fixed fee basis. “Unfortunately, cases of unclear fees and overcharging are still all too common and something which we would like to see reclaimed on her behalf. eradicated altogether from the legal sector.

Following a settlement, the client was billed £37,608, which was That’s why we believe that any service we offer should be priced fairly, deducted from her inheritance, leaving her with £25,000. The transparently and wherever possible, on a fixed fee basis. We will never Ombudsman said that there was no evidence of the ‘significant activity’ charge contingency fees like many of our competitors as we feel this required to justify the firm’s charges in relation to the case.

Although this is an extreme case, reports of clients being overcharged as approach is unethical and unfair to the client.

Title Research always offers its services based on a price that is agreed a result of firms not fully explaining their pricing structure are on the increase. This is one of the key drivers behind why clients are increasingly before any work is undertaken – we believe this offers a clear solution and the best value for all involved.” looking to firms to provide fixed fee services.

For more information on Title Research’s services, visit www.titleresearch.com or call 0345 87 27 600.

20 The Bill of Middlesex

property law

How SuDS are affecting Commercial Property Drainage Searches Local Authorities are implementing stricter planning controls in favour of more sustainable drainage on new property development. Commercial property lawyers must be alert to tightening guidance on drainage, the role of SuDS and how this could affect the drainage and water searches they require for a property transaction.

Drainage requirements follow a “hierarchy” of planning approval, with a presumption in favour of SuDS, where appropriate. Because SuDS can have a significant impact on your client in terms of project cost and long-term maintenance liabilities, you should make reasonable enquiries to determine whether SuDS are an appropriate drainage solution for your client’s site.

This could affect the advice given in respect of planning conditions, easements, adoption, maintenance as well as advice relating to insurance cover.

Today, major developments (10 or more dwellings) must assess site suitability for SuDS, so that the additional development does not increase the level of surface water runoff and consequently increase risk of flooding.

Additionally, a further review of SuDS is taking place this spring through both the Commons Environment Food and Rural Affairs (EFRA) committee and via the House of Lords review of SuDS in the Housing Bill.

The key decision relates to the removal of the right to automatic connection to mains sewers by new development (section 3 of the 2010 Flood and Water Management Act). This would effectively mandate SuDS as the main solution for flood mitigation and avoid existing sewers being overloaded by extra demand.

If SuDS were to become a standard feature, then who adopts and maintains them is critical and this remains a grey area. Developers are reluctant to retain a long term interest in sites, with the maintenance of SuDS schemes falling to property management companies or the local council. There are calls for water utilities to act as adoptees by treating SuDS as an extension to the sewer network.

At GeoSmart, we believe that a register of approved SuDS installations would ensure schemes were installed correctly and property owners were aware of their obligations. Precedent already exists for the adoption of private sewers by water companies in 2011, given a similar lack of knowledge about owners’ liabilities.

No one is questioning the role that SuDS can play in reducing surface water flood risk and the demand on our already stretched drainage and sewer network. However discussion on how best to legislate for them and how best to implement government policy will continue for some time yet, in the meantime information is needed now to safeguard your client’s long term interests with a site or existing development.

Information to support your Duty of Care The first stage in identifying whether SuDS may play a role in a development application is through assessing the site suitability to include sustainable drainage. Until now, this has been difficult to identify in a simple fashion.

GeoSmart has launched SuDSmart – the new drainage search for commercial property lawyers, revealing key information: • What the infiltration potential for surface drainage is on site.

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

• Whether there is a risk to the underlying aquifer.

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

SuDSmart meets the requirements of planning authorities in answering site conditions. It alerts your client to potential requirements for SuDS and supports effective management of preplanning or full planning submissions – reducing client risk and delivering clarity.

For more information on SuDSmart reports for your client, visit www.geosmartinfo.co.uk, contact us on 01743 276 150 or email info@geosmartinfo.co.uk.

The Bill of Middlesex 21

finance

Finance News Tanya Hamilton

This issue’s finance news is brought to you by Tanya Hamilton a partner at McBrides Chartered Accountants and a specialist in advising legal practices.

Solicitors be mindful - you are not a bank!

The SAR Rule 14.5 preventing a firm’s client account being used as a banking facility has made the news over the last couple of months with a spate of recent disciplinary tribunals and court judgements against solicitors.

The SAR Rule is explicit and states that there must be a legal transaction underpinning the movement of client money.

Solicitors trying to accommodate a client, however innocently, have been caught out and fined. And while a client may have a multitude of reasons for wanting to move money through solicitors rather than their bank (ease, lack of charges, trust etc), the Solicitors Regulatory Authority (SRA) would view this as ‘doing the bidding’ of a client something that the Rules were designed to prevent.

Since 1998, guidance note (ix) to Rule 15 of the Solicitors Accounts Rules 1998 has warned solicitors of the need to exercise caution if

asked to provide banking facilities through a client account and in 2004 the note was amended to expressly state that solicitors "should not provide banking facilities through a client account". In 2011, the guidance note was elevated to an Accounts Rule (Rule 14.5 of the SAR Accounts Rules 2011).

The SRA believe that no specialist knowledge is required to understand this Rule and will prosecute if they believe a solicitor is moving money or holding client money without a legal transaction attached to it.

The SRA has seen an increase in reports of client bank accounts being used improperly as banking facilities, with the attendant risks of involvement in financial crime or non compliant insolvency processes.

HMRC’s computer snooper in full operation Don’t be tripped up by your electronic footprint - it’s bigger than you think it is! We all manage to leave a sizeable electronic trail detailing where we have been, what we have spent, showing when we are home and when we are away.

HMRC has spent over £100 million, along with years of research, building their powerful ‘Connect’ system which enables officers to draw on information from government and corporate sources to profile each taxpayer’s total income. So, HMRC has a more complete view which extends beyond relying solely on information provided by the taxpayer. If HMRC sees variation in the information provided by the taxpayer, then the account will be flagged and could be subject to investigation.

Tax avoidance still at the top of the government’s agenda HMRC’s tougher line on tax avoidance collected a whopping £886m over the year to 31 March 2016, a figure significantly up on the 201415 figure of £494m. The Chancellor Philip Hammond signalled in his Autumn Statement, just before Christmas, that tax avoidance will feature in the new Finance Bill this year in the form of tougher penalties for professionals who promote suspect schemes.

Tanya Hamilton Tanya Hamilton is a partner at McBrides Chartered Accountants specialising in advising legal practices. Tanya is experienced in guiding legal practices through the minefield of SRA Accounts Rules as well as the accountancy and tax issues affecting the legal sector. To get in touch with Tanya visit www.mcbridesllp.com

22 The Bill of Middlesex

finance

Is financial services regulation in your blind spot?

Jonathon Bray

The SRA recently announced that it will shortly be issuing a questionnaire on financial services conducted by solicitors.

“Questionnaire” is perhaps a kinder word than “review”.

But do not be fooled. The regulator is concerned that solicitors are routinely undertaking financial services work without following the specialist rules.

Or, in the worst cases, doing work they are not permitted to do under the Financial Services and Markets Act (FSMA) without being FCAregulated.

And the SRA is right to be concerned. There are huge swathes of the profession that do not follow the specialist rules contained in the SRA Handbook. This might be because either they do not know they are there, or because they do not recognise that the work they do counts as “financial services” under FSMA. Neither is an excuse.

The main areas that would otherwise sit under the FCA umbrella include financial services (e.g. financial advice), insurance mediation and consumer credit.

Solicitors have the benefit of an exemption to being regulated by the FCA if their financial services work falls within narrowly defined criteria in Part XX of the FSMA. These are commonly known as the “Part 20 exemptions”. It means that most solicitors do not have to be dual regulated. There are a handful of law firms that choose to have FCA licences as well - typically because their work does not sit within the Part 20 exemptions.

As a general rule of thumb, so long as the work is incidental to an underlying legal transaction, solicitors can undertake the work specified in the Part 20 exemption. The trade-off is that the specialist SRA rules must be followed.

Specialist rules, the Financial Services (Scope) Rules 2001 and Financial Selling (Conduct of Business) Rules 2001, are in place and need to be followed. You will find them buried towards the end of the current SRA Handbook. The Scope Rules are important because they set out what is (and is not) included in the Part 20 exemption. In other words, whether you are permitted to undertake a particular activity without an FCA licence. The Conduct of Business Rules then set out how an SRA-regulated firm must undertake that financial services work.

Requirements under the specialist rules include: - holding commission earned from recommending a product to the order of the client - appearing on the FCA Exempt Professional Firms Register - appointing an insurance mediation officer - using the prescribed wording to tell the client about your status as a non-FCA regulated firm - discussing the product’s suitability with the client - giving the client a “demands and needs” statement, setting out why a particular product has been recommended

These are not particularly onerous requirements. Trouble is, the rules are often overlooked.

The SRA’s pending review no doubt seeks to assess the scale of the issue. Reading between the lines, they are concerned that widespread flouting of the rules threatens the carve outs for solicitors negotiated with the FCA. That would mean all financial work would have to be separately FCA-regulated.

COLPs and ‘managers’ (i.e Partners/Directors) should also have cause for concern. Not least because the FSMA contains criminal penalties. Beyond that, Outcome 7.5 of the Code of Conduct requires the firm to comply with legislation applicable to your business, which certainly includes the FSMA. The Authorisation Rules also require COLPs to take reasonable steps to ensure compliance with statutory obligations applicable to the firm, and record any compliance failures.

So there is plenty of scope for the regulators to hang you out to dry if they so wish.

My recommendation is therefore to pre-empt this SRA exercise. Start by looking at the type of work your firm undertakes, and identifying whether anything could cross the line into financial services.

Is financial services work purely incidental to an underlying legal service, or do we risk straying into mainstream financial services? Are the specialist rules being followed? Are there systems in place to make sure they are followed in each case? Where necessary, is the firm listed on the FCA Exempt Professional Firms Register? Is firmwide Part 20 training needed?

I would also make sure your supervision and file review systems specifically targets financial services compliance.

To get you thinking, see if you can identify which of these “financial services” is permissible for a solicitor to undertake under SRA regulation? What are the compliance implications? What practical steps do the specialist rules require you to take, if any?

- A property solicitor puts in place a title guarantee insurance policy.

- A family solicitor takes payment by instalment from a client who has fallen behind on payments.

- A personal injury solicitor puts in place after the event insurance policies in most of her cases.

- A private client solicitor recommends an investment product.

- A property solicitor gives a client advice on mortgages.

- A civil litigator recommends a litigation loan as a funding option.

Feel free to contact me to discuss the answers.

Jonathon Bray provides outsourced compliance and risk management support (“COLP-help”) www.jonathonbray.com

The Bill of Middlesex 23

legacies

A HISTORY OF PIONEERING CANCER TREATMENT Since it launched, The Institute of Cancer Research’s (ICR) free Will scheme has raised over £8m in legacy gifts, which have helped us make some of the most important discoveries in the history of cancer research. Help us continue our 100 years of ground-breaking research.

From identifying cancer-causing chemicals in cigarette smoke, to the vitally important link between DNA damage and cancer, we’ve always been committed to improving treatment and prevention through our scientific research.

Thanks to the research taking place at our labs in Chelsea and Sutton, we now understand more about the biology and genetics of cancer than ever before. This means we can diagnose patients earlier and target their treatment more effectively. As such, the proportion of patients surviving cancer has doubled since the 1970s.

But we envisage a world where people can live their lives free of cancer as a life-threatening disease. We have bold plans to make this a reality. We’re using cutting-edge microscope technology to look in exquisite detail at the fundamental biology of cancer cells; we have plans to build a new Centre for Cancer Drug Discovery to help us discover more and better treatments, and tackle the challenge of drug resistance; and we’re investing

in exciting new treatment approaches such as immunotherapy.

Legacy donations are a vitally important source of funding for the ICR and past legacies have helped us to make some of our most significant discoveries. At the ICR we offer a Will for Free scheme, enabling people aged 60 and over to make a basic Will or update an existing one – and the ICR will cover the cost.

Almost 400 solicitors across the south and east of England have partnered with the ICR on our Will for Free scheme, and together they helped secure almost £2.5million in legacy pledges in the last financial year. The importance of these pledges cannot be overstated; knowing that we can rely on future funds from legacy gifts allows us to embark on major research initiatives and invest long-term in finding the solutions to defeat cancer.

To find out more about the ICR and our Will for Free scheme, please visit our website icr.ac.uk/legacy or call Marcia on 020 7153 5387 or email legacy@icr.ac.uk.

“Having been a researcher at the ICR for almost 20 years, I have seen it go from strength to strength. I am proud of the impact its research has had, and will continue to have in the future. I decided to leave a legacy to the ICR in my Will because I want their vital work to continue.”

Professor Robin Weiss FRS Former Director of Research at the ICR.

24 The Bill of Middlesex

legacies

Canine Care Card Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved four-legged friend without an owner.

Thankfully, Dogs Trust, the UK’s largest dog welfare charity, offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, it also helps to ease the minds of friends and family during what is already a distressing time.

Over the past 12 months, Dogs Trust has taken in a whole host of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes. One of these such dogs is ten-year-old Jack Russell Terrier, Buddy who was taken in by Dogs Trust Glasgow when his owner sadly passed away. When he first arrived at the rehoming centre, Buddy was understandably missing his home comforts and hoping to find love again with a new owner. Thankfully, the team at Dogs Trust Glasgow were able to provide the adorable boy with a home away from home while he awaited his furry-tale ending.

Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving home. After being lovingly cared for by staff at Dogs Trust Glasgow, Buddy is now starting life with a new family, who have even registered themselves on the Canine Care Card scheme.

Sarah and Buddy the dog.

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

Who’ll keep him happy when your client’s gone?

We will – as long as your client has a Canine Care Card. It’s a FREE service from Dogs Trust that guarantees a bereaved dog a home for life.

At Dogs Trust, we never put down a healthy dog. We’ll care for them at one of our 20 rehoming centres, located around the UK. One in every four of your clients has a canine companion. Naturally they’ll want to make provision for their faithful friend. And now you can help them at absolutely no cost. So contact us today for your FREE pack of Canine Care Card leaflets - and make a dog-lover happy.

Call

020 7837 0006

Or e-mail

today

ccc@dogstrust.org.uk

Or write to: Freepost RTJA-SRXG-AZUL, Dogs Trust, Clarissa Baldwin House, 17 Wakley Street, London EC1V 7RQ (no stamp required) Please quote “333339”. All information will be treated as strictly confidential.

This service is currently only available for residents of the UK, Ireland, Channel Islands & the Isle of Man

www.dogstrust.org.uk Registered Charity Numbers: 227523 & SC037843

26 The Bill of Middlesex

conveyancing

Tailored Regulation from a Specialist The Council for Licensed Conveyancers (CLC) was established in 1985 to foster competition and innovation in the conveyancing market.

The CLC has always looked to be a proactive regulator in anticipating and monitoring the issues that affect the licensed conveyancing community. We work closely with all our licence holders and we listen to what they say, helping them to achieve the right outcomes for consumers.

The CLC regulates thriving firms of all types and sizes, and has always looked to promote high regulatory standards. Each CLC Practice is allocated a Regulatory Supervision Manager (RSM) whose role is to guide them in all regulatory and compliance issues.

Today, we are still helping legal businesses to thrive by finding new ways to meet changing customer expectation. Our approach is to support firms to achieve compliance and to accommodate different ways of working where we can. In 2016 we were awarded the highest overall rating of any legal services regulator by the Legal Services Board.

Should you wish to discuss your Practice’s requirements, whatever your business model, we will be more than happy to meet with you, or discuss them over the telephone.

Please email licensing@clc-uk.org

There has also been no need for an accreditation scheme for CLCregulated firms or lawyers, thanks to their specialisation and the effectiveness of our tailored regulation.

In a recent survey, three quarters of licensed conveyancers stated that the CLC provides value for money and supports them in developing their businesses. From 1st November 2016 the CLC reduced its regulatory fees rates for Practices by 20%.

TAILORED REGULATION OF SPECIALIST LAWYERS PROTECTING THE CONSUMER SUPPORTING INNOVATION, COMPETITION AND GROWTH

If you would like to find out more about CLC regulation, or are considering becoming a CLC regulated Practice then please visit the CLC website: http://www.conveyancer.org.uk/Regulation-by-CLC.aspx where you will find more helpful information, including how to qualify as a CLC Lawyer: http://www.conveyancer.org.uk/trainee-lawyer.aspx

IT’S TIME TO THINK ABOUT THAT MOVE

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

www.clc-uk.org/Changing-Regulators or call 020 7250 8465 The Bill of Middlesex 27

conveyancing

eConveyancing starts to take shape

an interview with Adam Bullion, General Manager of Marketing & Product at InfoTrack Why is changing technology important?

It has become clear that advances in technology, such as the advent of the internet and the smartphone have changed human behaviour. From our professional lives, where we work longer hours due to remote technology, to the behaviour in our personal lives, where we expect to have access to information instantly and be able to perform many tasks wherever we are, whenever. Consumer behaviour also has changed, and ecommerce has become king, so we no longer need to ever leave our homes to buy goods. These daily efficiencies are also expected by staff, and as a business owner it is our duty to implement the appropriate technology to meet these changing needs, particularly when, regardless of technological advances, many business processes remain stagnant.

In terms of the conveyancing process where do you foresee the potential for change?

I believe that the conveyancing industry is a legal sector that is overdue for change. Aside from searches, many parts of the process have already become electronic and are hosted online, such as the submission process for the SDLT and AP1 forms.

However, no provider has taken advantage of this ability, until now.

At InfoTrack, we look at the most cumbersome and form heavy sections of conveyancing and turn these into electronic versions that are easier to complete and enjoyable to use. Upon review, we identified the contract pack as the next segment of the process where administrative processes can be reduced and optimised. With this in mind, we have created eCOS (electronic Contract of Sale) which combats the time consuming process of copying information into a contract, as well as dealing with the slow and unsecured way in which these documents (including the TA6 and TA10) are handled. eCOS is a fully electronic process that conveyancers can take now advantage of and be seen by their clients as truly forward thinking.

Tell us more about eCOS, what does this do?

We created eCOS (electronic Contract of Sale) to be a paperless solution that gives conveyancers the ability to compile the full contract pack electronically, including the TA6, TA10, contract, title and plan. Our smart eCOS portal also allows the contract pack to be easily sent and received by both the conveyancer and the client within InfoTrack, so you can rely on it being a fast, paper-free and completely secure process that requires no printing scanning, posting or faxing. These contract packs can also be signed

28 The Bill of Middlesex

electronically by all parties involved, using the latest in e-signature technology. At InfoTrack, our mission to build the end to end conveyancing process online is being enacted one process at a time, and eCOS is the next step.

Are electronic signatures acceptable forms of signing legal documents?

With a growth rate of over 53% annually, e-signatures are rapidly being adopted in many industries and at different levels of transactions. The Law Society recently released a practice note on the use of electronic signatures in law, and with secure, stringent measures put in to maintain the highest level of security, electronic signatures are highly regarded and are an efficient way of signing documents. The technology we use is by DocuSign, the global industry leader in e-signing.

Would you offer any advice to conveyancers looking to adopt new technology?

InfoTrack aspires to create technology that is not only incredibly efficient and simple to use, but also makes day-to-day processes more enjoyable. I believe that good technology should be a joy to use, as well as providing clear operational benefit. So when adopting new technology for your firm, I always suggest that a series of questions are asked; does it add value to the customer?

Does it reduce operating costs? Is it relevant? Will it help us excel in our core competencies? Will it reduce cost/improve quality/provide a set of functions that did not exist before? Those technologies that will be most valuable should respond ‘yes’ to all those questions. â–

By Adam Bullion, Head of Marketing

conveyancing

TWPS adds new RiskView Commercial report to its search portfolio We are delighted to inform customers that Landmark’s innovative RiskView Commercial report is now available from Thames Water Property Searches.

Developed in consultation with experienced legal practitioners, RiskView Commercial is the first ‘all-in-one’ commercial environmental search to provide analysis on four key risks: contaminated land, flooding, ground stability as well as energy and infrastructure – with the information presented in an easy-toread report.

In another exciting first, the findings can also be viewed online.

The state-of-the-art map-viewer presents the information in a highly visual and easy-to-navigate way bringing commercial conveyancing due diligence into the digital age.

• clients themselves will be able to access the findings online helping with the buying/leasing process.

The report analyses a comprehensive range of risks including all forms of flooding; proximity of energy or infrastructure developments, such as wind farms, Crossrail or HS2; land contamination risks such as those present from former industry; plus ground stability issues such as radon, land movement and more.

• all environmental due diligence will be completed at a fixed cost

Importantly, the comprehensive risk assessment also highlights any results that may require further action or investigation supplemented with clear advice and recommendations from expert environmental consultants, Argyll Environmental.

• the report reduces practice risk as there’s no need for a manual alert driven process

The RiskView Commercial ‘four-in-one’ report is priced at £250 exc VAT

• the all-in-one format reduces document reviewing time, as well as reducing time and money on printing and post

To find out more about how RiskView Commercial can benefit your business call us on 0845 070 9148 or visit www.thameswater-propertysearches.co.uk

We believe that this comprehensive new product will be extremely beneficial to conveyancing firms in a number of ways, namely:

• the report summary helps conveyancers deliver a clear and consistent message to clients

Don’t get lost in a maze of confusion

Get straight to the point...

Comprehensive Title Insurance Policies made simple with GCS Instant Issue

www.gcs-title.co.uk | 01435 868050 | underwriters@gcs-title.co.uk Guaranteed Conveyancing Solutions Limited is authorised and regulated by the Financial Conduct Authority. Registered in England and Wales No. 3623950

The Bill of Middlesex 29

technology

Digital Transformation and the Workplace Law firms are undergoing a digital transformation that is forcing them to change the way they do business. As a result, the way work is being done has changed. Legal professionals are becoming increasingly mobile and are no longer confined to a single place or device.

Collaboration, untethered mobility and rapid communication are becoming the cornerstone of productivity and client satisfaction.

Law firms and corporate legal departments are responding to this shift by ensuring they have all the tools and resources needed for their lawyers to be productive and efficient. In addition to delivering these assets, firms are also finding they need to ensure systems are always on and available while protecting their users from external threats and attacks.

Given recent news about law firm data breaches, and the changing nature of cyber-threats, the new client is also becoming increasingly sensitive to where – and how – their information is being stored. Client security audits and surveys are getting longer every year, and the amount of energy expended to ensure that each client’s information is managed in accordance with its specific wishes in terms of location, cloud or no cloud, retention post close, etc. – becomes overbearing to manage across the number of offices and matters.

The New Professional: Mobile, tech savvy, demanding change in applications and tools

The New Law Firm: Adapting to client demands

The increased mobility of today’s legal workforce and the consumerisation of IT are reshaping what today’s lawyers need and expect from their employers to do their jobs. New professionals are not defined by their age, but instead by their intimate familiarity with technology and their expectation for a frictionless work experience across all devices.

Twenty years ago, paper was king for most firms. Today, digital platforms such as chat tools, text messaging, file shares, new data formats like One Note, images and videos are used by professionals to collaborate and store information – adding complexity and chaos to the workflow process. This change, combined with increased communication between technologies, is impacting how professionals deliver great client work.

The new professional uses multiple screens: phone, tablet and PC – and has the expectation that information and communications are equally accessible from each. As expectations continue to rise around their ability to access email and edit documents on any device, more and more firms are providing solutions that emulate identical user experience no matter the device or document.

Most importantly, new professionals use technology in their personal lives, downloading apps, getting directions, sending packages, and hailing transportation. They are intimately familiar with what technology can do, and know now how to get critical work functions accomplished – such as document editing, sharing and collaboration – without 100% reliance on the tools provided by their employers.

The New Client: Higher expectations, more stringent security and governance of their information One of the biggest drivers of change stems from increasingly high expectations from clients. The new client demands quicker responses, more value for their money, an overall better customer experience and the most stringent security and governance over their information. While the client has always been in the driver’s seat, these demands are increasing pressures on legal firms trying to adapt to the transformations they are already experiencing. These new clients are also the ones driving many of the changes with the new professional.

30 The Bill of Middlesex

The ‘new firm’ recognises the need to adapt to new client demands and changes in market conditions to remain competitive. The new firm continuously improves itself to meet the expectations of its professionals by improving their productivity, as well as adopting tools and processes that evolve the business model beyond the billable hour – ultimately increasing agility and flexibility and producing more efficient work. With today’s new ways of working, it is now more important than ever for firms to drive new business models enabled by technology that increase productivity amongst their professionals – enabling them to communicate in a secure and controlled manner that does not put valuable information at risk.

by Geoff Hornsby General Manager EMEA, iManage For more information visit www.imanage.com.

technology

Ten considerations when starting your own law firm Peter Baverstock of LEAP, the leading cloud based legal software solution for small law firms, outlines areas to consider when starting your own firm.

The continuing advancement of cloud technology and new ownership regulations mean it has never been easier to start a law firm. Mobility, simpler and lower cost technology and widespread acceptance of remote working are motivating legal entrepreneurs wanting to start their own practice.

What to practice

Organisation

Your brand should be determined by your choice of what area of law to concentrate on. Choosing the area of law that interests you most is one of the keys to future success. It is better to narrow your services and build your expertise. Specialisation is attractive, but risky; for example, conveyancing is notoriously subject to economic cycles.

When starting your firm there is so much to consider. Here’s a brief checklist: Law Society requirements, Professional indemnity insurance, bank, website, letterhead, practice management software, computer infrastructure, legal cashier. You need to be able to: communicate with your clients, create documents, record your time, disburse money for your clients, manage client money and designated account money, bill clients, keep books without needing the skills of a cashier and keep all the accounting records relating to employment and the general running of a business including your nominal ledger and VAT. A good case management solution is invaluable as it will provide a platform to meet all the above requirements.

How to attract clients Clients will not arrive without effort. Fortunately, technology is aiding the acquisition of new clients. A website with good Search Engine Optimisation will give you a competitive advantage over more established competitors. If you use social media like LinkedIn or Facebook, you can quickly turn your network into a potential source of leads by declaring your new status. Network, network, network high street firms generally find that the majority of their work comes from people in their local area. It is important to attend business events to meet other local business people. A strong referral network in your local area will help create a regular stream of work.

Where to practice A few years ago, the obvious answer to this question would have been that you needed a physical office with all the related costs.

However, technology has changed everything, in particular cloud software now allows you to practice anywhere at any time and keep initial costs to a minimum. We have become accustomed to working remotely and without spending hours commuting, so becoming more productive.

Buying a practice Many small law firms are currently owned by ‘baby boomers’, lawyers approaching retirement who have not made a succession plan and have no exit strategy. Often they have a significant clientele and it may cost less to purchase one of these firms than building your own client list from scratch.

Making your plan You need a strategy and a business plan. You need the right person/people to support you. You need to be able to execute your strategy and have the cash-flow to do so. Plan in terms of time.

Where do you want to be in three months, two years, five years?

How much investment do you need?

Software options Today, cloud software offers the ability to run a successful law firm from anywhere and from any device (even from somebody else’s device via a web browser). You could be in your office, at home, on a beach, on a train or plane. Cloud software will provide you with: lower infrastructure costs, no need for servers nor costly data storage devices, accessibility from anywhere in the world with a good internet connection, a mobile workforce with staff having more flexible hours and a better work/life balance. Cloud software gives you the ability to work while not connected to the internet with full synchronisation when you reconnect.

Technology infrastructure It is important that you choose a technology supplier that is familiar with the needs of small law firms. It is often also possible for you to lease your IT infrastructure so that you have predictable and affordable monthly payments.

Compliance Compliance shouldn’t be a burden to you but a natural consequence of running your firm well. You need to be admitted to the Solicitors Regulatory Authority and to have Professional Indemnity Insurance.

Once practising you need to comply with your COLP and COFA obligations.

Hopefully you will now have the confidence to take your first steps to becoming a small law firm owner.

Calculate how much money you need to cover cash-flow. Funding is available, even for start-ups. Keep your start-up costs low by investing in good systems and being organised. What is your costing model? Fixed Fee, Time Based Billing or both?

The Bill of Middlesex 31

book review

“RESEARCH HANDBOOK ON EU LABOUR LAW” Edited by Alan Bogg, Cathryn Costello and A.C.K. Davies ISBN: 978 1 78347 111 9

Edward Elgar Publishing www.elgaronline.com

KEY ISSUES AND MAJOR TOPICS IN EUROPEAN UNION LABOUR LAW, CRITICALLY EXAMINED An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This is one of the latest titles in Edward Elgar’s ‘Research Handbooks in European Law’ series – and a timely publication it is, especially for UK scholars and practitioners.

It may – or may not – be a coincidence that in the few months since Britain’s historic Brexit decision, there have been spectacular instances of labour unrest, with, primarily transport unions conducting frequent strikes, thus inflicting considerable damage to the British economy in general and to that of London in particular.

Happily for those now seeking rational perspectives on labour matters, the three editors of this book, all from Oxford University, have brought together the work of almost two dozen international scholars, all offering specialist expertise across a wide range of issues pertaining to this still relatively young and certainly complex discipline. The result, as the editors reassure us, is a ‘state of the art’ assessment of EU labour law in its many facets.

The book’s two dozen or so articles are grouped under four headings: cross-cutting themes… individual employment law…. collective labour law… and equality. It is fair to say that each individual essay or article delivers thoughtful and insightful analysis of the topic it concerns.

Of the many themes and analyses which permeate the book there are several which should generate immediate interest among UK readers. The first two chapters, for example, assess the relationship between EU labour law and national law. Also examined is the

relevance of EU labour law to other bodies of EU law, from human rights to the law of the internal market, with its worryingly inherent threat to the autonomy of Member States, which, understandably, has caused apprehension and disquiet in the UK. But what now after Brexit? The problem here is that the bulk of the book was written shortly before this seismic change occurred. So the obvious conclusion is that Brexit is still an unknown quantity and that therefore it’s too soon to tell. Assuming, however, that Brexit does go ahead, which now seems a certainty, the editors believe (at this early stage) that its effect on EU labour law is hard to predict. They do, however, allude to such consequences as ‘downward pressure’ on standards and wages and possibly some erosion of the European social model.

The detailed discussions surrounding these concerns are indeed fascinating, which is why scholars and practitioners involved in cross-border labour issues will find this volume a stimulating and useful compilation of commentary and reference, bearing in mind that the UK will still be in the European Union until at least 2019, or beyond. Those doing background research in this area of law will especially appreciate the wealth of references contained in the extensive footnoting throughout.

The publication date is cited as at 2016.

“CONTRACT FORMATION” Law and Practice 2nd Edition

By Michael Furmston and G J Tolhurst Contributor: Eliza Mik ISBN: 978 0 19872 403 2

Oxford University Press www.oup.com

“PERHAPS THE MOST LITIGATED AREA OF CONTRACT LAW”: FORMATION CLEARLY EXPLAINED AND CRITICALLY EXAMINED An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers What exactly – is a contract? When is it not a contract? What is an offer and when and when is it not? And can you explain the possible subtleties of an invitation to treat?

As a practitioner, you will no doubt have the answers. But, as this important new book from Oxford University Press reveals, said answers may loom as much more complex than you might have thought at the outset of a case.

As authors, Michael Furmston and Greg Tolhurst ably assisted by Eliza Mik, have warned, ‘practical problems about contract formation continue to trouble lawyers, professionals and the court.’ Pressing home the point, they cite the example of a case where, on undisputed facts, the High Court, Court of Appeal and the Supreme Court came up with three different answers, of which all, naturally, have been incorporated in the text.

For the law student as well as the experienced practitioner, contract formation is obviously the first step and the first line of enquiry in contract law. Often regarded as the easier and indeed most entertaining aspect of contract law, contract formation, as the authors remind us, is ‘perhaps the most litigated area of contract law’ and that, notably, the issue which occupies most of the court’s time is that of agreement. The requirements of agreement therefore emerge as the main concern of this book, which scrutinizes the topic of contract formation from the perspective of principle.

Note that this is the second edition of what has become -- in the six years since the first edition was published -- the definitive work in this specific area of law. Particularly useful

32 The Bill of Middlesex

is the addition of the chapter on consideration. The rules governing the formation of contact law, say the authors, are easy to state, but difficult to apply, probably because typically, lawyers are not brought in at the early stages of contract formation.

Although the book focuses on English law for English practitioners and discusses the leading English authorities, it also contains comparative case law, as the principles of contract formation are similar across many borders.

Throughout its more than 450 pages, the book covers a vast range of topics and issues pertaining to contract formation, from the concept of agreement… to offers and invitations to treat… to termination and revocation… to offers and to acceptance. Also covered are online transactions, auctions and tenders, letters of intent, conditional contracts and much more besides.

For practitioners in urgent need of advice and clarification on any number of matters relating to contract formation, the book is easy to navigate, with a detailed table of contents, useful index, numbered paragraphs throughout and the extensive footnoting. Also available are tables of cases, European Union legislation and national legislation, plus a table of international treaties, conventions and other instruments.

Here then, is an authoritative text that excels as a work of reference – just the thing for embattled practitioners bemused by this surprisingly complex subject.

The publication date is cited as at August 2016.

Due diligence made simple Complete environmental analysis | Concise exper t opinion | Full findings online

RiskView Commercial advises law yers on Contaminated Land, Flood, Ground Stabilit y and Energ y & Infrastructure all in a single, easy-to-read repor t. Where issues are identified, you get exper t guidance on next steps from our environmental consultants. The repor t summar y covers your due diligence and the full findings are available using our online viewer – simply click on links within the repor t and you are taken to an interactive map where you can review all the results in more detail.

It’s the all-in-one environmental repor t that’s simple, helpful and accessible. And because it’s an all-in-one repor t, you can confidently offer a fixed-fee search pack to ever y client, ever y time.

©2016 L andmark Infor mation Group Ltd

084 4 84 4 9966 | helpdesk@landmark.co.uk | landmark.co.uk

articles Twelfth & Thirteenth chapters in the series of extracts from the...

The Rise and Fall of Legal Aid

by Alured Darlington

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

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

Chapter Twelve

R v Attuh Benson In mid-2004, I was invited to represent the above lady in her appeal against conviction. However I learnt that she had already appealed herself against her sentence without trial counsel’s agreement and that appeal was pending. Understandably her trial counsel did not want to get involved at that stage. As by then I was already committed to her case I agreed to represent her in her appeal against sentence as well.

I was much luckier with this case where I had submitted a skeleton argument to the Court of Appeal submitting that the Aramah guidelines were not appropriate for defendants from third world countries.

I conducted Irene’s appeal against sentence myself but was greatly assisted in its preparation by the tolerance of my then employer Raj Veja who allowed me unlimited time to do so and was equally generous with the time of his excellent secretary, Flo. I sought to argue that the Aramah Guidelines were inhuman and inconsistent with both British and European Law. I submitted that drug

offenders with dependent children who came from undeveloped countries should be treated more leniently than other offenders domiciled in the UK. Couriers and their families suffered far greater hardship from a lengthy sentence of imprisonment as they were likely to serve their sentences thousands of miles from home in a foreign country.

I recently spoke to Evadne J (Chapter 10) on the phone to Jamaica. She is now dying from cancer of the stomach, as her mother did, and in great pain. I was able to tell her that it was her case that set up the chain of events that led to the long sentences that she and many others experienced for over thirty years from 1982 to 2012 was no longer possible under the new drug offenders sentencing guideline. I told her that no one in her position today would get the lengthy sentence that she got. She appeared comforted by this information.

Chapter Thirteen

R v Laurence F The charity Hibiscus founded to support the welfare of overseas prisoners had a permanent presence in some prisons funded by the Home Office but which is now no longer available because of governments cuts. I believe that it was a result of this initiative that I was asked to see Laurence there being concern as to her guilt in the case where she had been convicted.

It transpired that Laurence was a classic case of insufficient preparation resulting in a guilty verdict at her first trial. No statement was taken from her daughter or her son in law, her computer was not interrogated and no character witness was called at her trial. She had received a sentence of 12 years for importation of cocaine.

Laurence was a middle aged French woman of impeccable character, a gentle, kindly, trusting and unsophisticated lady who had founded her own charity in Mali for the support of orphans in that country named Les enfants de Mali. She had been asked to bring substances from France to the UK which she had been assured was gold, which she believed, but it transpired that she had been misled and the substance was in fact cocaine. This was a case where if she was to be believed the jury had to have a deep understanding of the nature of the woman they were trying.

They were helped in this by a prolonged cross examination in her second trial but the character witnesses were vital .One, now a successful civil servant, came from France and testified that Lawrence

had discovered and rehabilitated him when he was a down and out drug addict and it is believed that it was this witness that opened the eyes of the jury to the real character of the lady they were trying.

Once I had agreed to appeal Laurence’s conviction I took her instructions and then arranged for her daughter and son in law to visit me in the UK bringing her computer with them. They both confirmed that they were aware that she thought she was carrying gold but her original solicitors did not wish to follow this up. Both agreed give evidence in any retrial.

They had brought her computer which I sent for interrogation and analysis by an expert. Her findings revealed that some days before Laurence commenced her journey from France to the UK she had been visiting websites about gold and making enquiries there about gold.

This information was sufficient to persuade the Court of Appeal to order a new trial. At her retrial the defence called Laurence, her daughter and her husband, the expert who had examined the computer, and a number of character witnesses from France.

Laurence was acquitted unanimously. Every year on about the anniversary of her acquittal, and when she would otherwise have been in prison, Laurence has written to me from France. Laurence’s daughter wrote to say that she had would never forget how we had helped her mother. Rightly or wrongly my wife and I accepted a holiday in France some years later.

...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

Every device.

The same information.

The mation

Work anywhere, anytim me.

Mobile - Manage all your matttters from the palm of your hand Web - Accessible in any browser Tablet - Ever ything available at your finger tips Desktop - The power of Windows at the office

leap.co.uk/leap365/