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CLAPHAM OMNIBUS the journal of the South London Law Society Autumn Issue 2017 - southlondonlawsociety.co.uk

The Annual Dinner at the Kia Oval’s John Major Suite See pages 10-11

Inside this issue:

■ Conveyancing ■ Forensics ■ Junior Lawyers Division ■ News


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Contents

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

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PRODUCTION MANAGER John Barry ACCOUNTS DIRECTOR Joanne Casey MEDIA No. 1505 PUBLISHED October 2017 © Benham Publishing Ltd

Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us. DISCLAIMER The South London Law Society welcomes all persons eligible for membership regardless of sex, race, religion, age or sexual orientation. All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified legal advice.

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

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INTRODUCTION NEWS EVENTS JUNIOR LAWYERS DIVISION 14 ARTICLES 20 FORENSICS 22 EXPERT WITNESS

23 24 25 26 31 33

FINANCIAL PROBATE TECHNOLOGY CONVEYANCING LEGACIES BOOK REVIEWS

COPY DEADLINES Spring 2018 Summer 2018

3 March 2018 9 June 2018

Members wishing to submit editorial, please contact us before the copy deadline. COVER IMAGE South London Law Society Annual Dinner, October 2017

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

Email: anna@benhampublishing.com

Tel: 0151 236 4141

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Introduction

Officers President

Vice-President

Council Member

Gareth Ledsham

Robert Hush

David Taylor

Tel: e-mail:

Tel: e-mail:

Tel: e-mail:

020 8394 6492 gareth.ledsham@russell-cooke.co.uk

020 7815 6725 robert.hush@beckfitzgerald.co.uk

020 7228 0017 dxt@hanne.co.uk

Treasurer

Hon. Secretary

Magazine Editor

Andrew Pavlovic

Sarah Hughes

Samantha Whitaker

Tel: e-mail:

Tel: e-mail:

020 8394 6455 andrew.pavlovic@russell-cooke.co.uk

020 7940 4000 sarah_hughes@anthonygold.co.uk

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Web Address: southlondonlawsociety.co.uk

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Tel: e-mail:

07843 101235 omnibus.editor@gmail.com


Introduction

President’s Review A warm welcome to the autumn issue of the Clapham Omnibus As the nights start to draw in, and thoughts of summer are firmly behind us, for many of us our attention turns to the busy run-up to Christmas. The South London Law Society (SLLS) is, of course, no exception. We have two significant events this season. The first was the society’s annual dinner in October, held in the splendid surroundings of the Kia Oval. Our guest speaker was Deputy Senior District Judge (Chief Magistrate) Ikram. Tan Ikram practised as a solicitor-advocate in the Crown Courts, specialising in fraud, and serious and complex crime, before being appointed as a district judge on the south-eastern circuit in 2009. He was appointed Deputy Senior District Judge (Chief Magistrate) earlier this year. As an accomplished advocate, we were treated to an informative and entertaining view of justice at the coalface. Read more about the evening on pages 10-11. On 9-11 November, the Federation of European Bars (FBE) is hosting its biannual congress at the Grange St Paul’s Hotel. The theme of the congress is climate change, a topic relevant to all of us, no matter what our area of practice. Having attended FBE congresses previously, I have no doubt that delegates will find it useful and informative, as well as an excellent opportunity to network with our colleagues from across Europe.

Another we will be looking into is the Solicitors Regulation Authority’s (SRA) Looking to the Future project phase two, relating to Handbook reforms. Regular readers will know that the SLLS responded to phase one of the regulator’s consultation by expressing serious concerns about the impact of the proposed reforms for consumer protection, as well as protection for solicitors themselves if they found themselves working for nonregulated entities. We are yet to review the SRA’s current position in detail; however, members may rest assured that the SLLS will be strongly advocating for the highest level of protection for solicitors, as well as the clients we serve, in our response. An update will follow in a future issue of the Clapham Omnibus. As always, if there are any issues that you encounter and would like the SLLS to make representations, please do let us know. Best wishes, GARETH LEDSHAM President South London Law Society

At the time of writing, tickets to the congress are still available. As some members will be aware, a past president of the SLLS, Professor Sara Chandler QC (Hon), is the FBE’s president this year and it’s hoped that as many South London lawyers as possible will attend to support the event. When not attending events, SLLS will also be continuing its programme of reviewing and responding to consultations relevant to South London lawyers. One such consultation is the Law Commission’s consultation relating to the law of wills and proposed reforms, which you can read more about on page 14.

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News

Can the law stop climate change? How solicitors in South London have a part to play in protecting our environment January heralded a setback for climate change reform, when Donald Trump declared he would fulfill a campaign promise to take the US out of the Paris Agreement. The reasons given suggested Trump’s complete misunderstanding of the agreement: he appeared to believe that it imposes obligations on states and a compliance regime to police activities. But this isn’t true. Instead of binding obligations to achieve targets set by parties, the Paris Agreement sets binding obligations to prepare, communicate and maintain “nationally determined contributions” (NDCs) to slow down and halt climate change. States set these NDCs for themselves, although it is expected that they are set at the highest possible ambition and progressed accordingly. In the US, the previous administration set the country’s NDCs based on an assessment of national circumstances, constraints and priorities. There was absolutely no external party involved.

Countries unite The Paris Agreement, which was set on 12 December 2015, sets out how the majority of the world’s countries will tackle climate change from 2021. Parties agreed on the “urgent need” to reduce greenhouse gas emissions and make progressively greater reductions into the future. Many of the measures likely to be taken have implications for the oil and gas industry – which matters to the US President. During his electoral campaign, Donald Trump promised to repeal the regulations that the Obama Administration put in place to reduce carbon emissions from power plants. And within days of becoming president, he gave the go-ahead to various oil pipelines that had been the subject of much protest previously. Within the EU, there are targets that affect us in the UK. The EU has committed to three targets for 2020: to reduce emissions by 20% on 1990 levels, to provide 20% of its total energy from renewables and to increase energy efficiency by 20% from 2007 levels. However, implementation and compliance is variable, being better in some countries than others. Litigation has filled the gap in legislation, particularly on measures such as emission-reduction targets which are not being implemented – for example, the Urgenda case in the Netherlands and the Client Earth case in London. Fiscal measures, such as carbon tax and reductions to subsidies available to carbon-intensive industries, ´ may be introduced. However, the challengers to these measures have found a champion in Trump.

and have procedures in place for recycling, reducing waste, maintaining electronic records instead of paper where possible, and generally running a more sustainable office. Individuals too can do what they can to reduce carbon emissions, such as leaving the car behind and taking to pedal bikes, or switching to an electric car. But is there something more we can do? There are professional roles that solicitors can adopt, as advisers, negotiators, representatives, draftsmen and women, litigators, judges, mediators and arbitrators, to name just a few. In these roles, we can contribute to the goals of the Paris Agreement. As advisers to our clients, solicitors should be fully briefed on compliance with measures to achieve the UK’s NDCs and the EU targets. Corporate clients are active in fields that may impact on the environment and will appreciate the knowledge and advice of well-briefed solicitors. There is an opportunity for South London Law Society (SLLS) members to increase their knowledge on climate change and, at the same time, network with European lawyers. On Friday 10 November at the Grange St Paul’s Hotel, London, there is a conference entitled “Climate Change and Lawyers” hosted by Baroness Helena Kennedy, Co-chair of the International Bar Association’s Climate Change Justice and Human Rights Task Force. This conference is part of the 50th congress of the Federation of European Bars (FBE), of which the SLLS is a member. The full programme includes four panel sessions, featuring speakers from France, Germany, Spain, Italy, Poland and, of course, the UK. There will be simultaneous translation and the whole event is hosted by City of Westminster & Holborn Law Society, at the same time as the National Conference of Local Law Societies. To find out more, email fbeclimate@gmail.com Book your place at the Federation of European Bars (FBE) 50th Congress (9-11 November 2017, from £85) at eventbrite.com/e/fbe-50th-congress-in-london-tickets3243032798

Professor Sara Chandler QC (Hon) Former President of South London Law Society and President of the Federation of European Bars (FBE)

Impact on South London Of course, Washington is a long way away from South London. So how do presidential executive orders in the US impact on us? What does it mean for South London solicitors? Many firms understand that there are ways for offices to become greener

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News

Promotions at Anthony Gold Leading South London firm Anthony Gold has announced a series of senior promotions across the firm’s three offices. With her expertise in property fraud litigation and contentious probate widely recognised, Beth Holden has been promoted to Partner in the Commercial Litigation department. In the Conveyancing department, Spencer McGuire has been promoted to Partner. He continues to be highly regarded by his clients, enhancing the reputation of the team. A further five fee-earners have been promoted to Senior Associate: Monika Bryska (Commercial), Adam Dyl (Injury and Medical Claims), Amanda Hopkins (Injury and Medical Claims), Donovan Lindsay (Court of Protection) and Nazia Rashid (Family). Beth Holden

Spencer McGuire

The Law Society and Brexit The government’s paper in August set some important proposals for negotiations with the EU in areas such as enforcing contracts and court decisions following Brexit. The Law Society has been working for months to establish priorities for negotiations in the legal field, so it was welcome news that the government intends to remain part of the Lugano Convention, which provides for an almost parallel system of recognition and enforcement of judgments in civil and commercial matters. “It is encouraging that the government has chosen to listen to the concerns raised by the solicitor

profession, and give civil justice co-operation the high priority it clearly needs,” said Christina Blacklaws, Law Society Vice President. Continuing the mutual recognition of court judgments was one of the Law Society’s key calls for the Brexit negotiations, as well as maintaining legal certainty and the EU-wide arrest warrant. This will help UK lawyers continue to service the cross-border needs of both businesses and individuals, whether from satellite offices in the EU or via “fly-in, fly-out” services.

Move boosts teamwork at Hanne & Co In 2015, Hanne & Co went through considerable upheaval moving offices from one base in Clapham Junction to two separate offices at Battersea riverside. At the same time, the firm opened a new branch in Dorking and moved all their operations to the cloud. “For management, it was an exciting, but exhausting time,” says Liz Francis, Partner at Hanne & Co. “It’s only in 2017 that we can come up for air and say that the move has been a resounding success. While some viewed moving to an open-plan environment with trepidation, in practice we have found that it has increased our camaraderie and encouraged even better teamwork.”

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Events

QualitySolicitors Amphlett Lissimore is growing QualitySolicitors Amphlett Lissimore has added a new office to its collection. The sixth office is in West Wickham, following a merger with Allen Barfields, a well-established and well-known firm in the area. The merge will allow both firms to benefit from economies of scale, with the new office providing assistance to more clients across South London. QualitySolicitors Amphlett Lissimore is also pleased to welcome Nigel Leonard to the firm, a partner specialising in residential property. The firm now employs 125 members of staff and has 11 partners.

DATES FOR YOUR DIARY

Junior Law Division: Costs Law Update Seminar by Paragon Costs

1 November 2017 at 6pm Anthony Gold Solicitors, London Bridge For full details, visit southlondonjld.wordpress.com and book your place by emailing sllsjunior-lawyers@gmail.com

Federation of European Bars (FBE) 50th Congress 9-11 November 2017 Grange St Paul’s Hotel, London From £85 Book now at: eventbrite.com/e/fbe-50th-congress-in-london-tickets-32430327984

Artificial intelligence: the future of legal practice? With Christina Blacklaws, Law Society Vice President

7 February 2018 at 6pm Keyworth Centre, London South Bank University

LAW SOCIETY EVENTS AT CHANCERY LANE, LONDON

1 Nov 2017

Section 28 cross-examination – what you need to know

6 Nov 2017

Owning up to Mistakes Symposium

7 Nov 2017

Judicial appointments – diversity event

14 Nov 2017

Law Management Section finance and business forum 2017

22 Nov 2017

Annual Competition Section dinner and awards 2017

24 Nov 2017

Judicial appointments: interview training for solicitors

24 Nov 2017

Advocacy and the Vulnerable Training

25 Nov 2017 To see all events, visit

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Events

The South London Law Society

ANNUAL DINNER Members met at the Kia Oval for dinner and drinks Held in the John Major Suite overlooking the famous Oval wicket, our Annual Dinner on 19 October saw members from a range of firms come together to socialise and network over drinks and a fabulous three-course dinner. We were entertained by guest speaker Deputy Senior District Judge (Chief Magistrate) Ikram, who spoke candidly about his journey to the judiciary, including his involvement in the 2011 London riots. As a self-confessed “outsider” from Slough, Tan Ikram expressed his genuine surprise at being appointed Chief Magistrate earlier this year, and left us with the warming message that we can all achieve what we want to achieve, regardless of where we’ve come from. A selection of photographs from the night…

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Events

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Events

The importance of being… Responsible Sarah Hughes on CSR in the legal sector and why firms should be doing more of it In February this year, I became the partner responsible for Corporate Social Responsibility (CSR) at Anthony Gold. Since then, I’ve encountered a number of questions from professionals, friends and family who don’t understand what CSR actually is, or why I dedicate so much time to it. I suspect this is common among many CSR practitioners, so I thought it would be useful to address these questions for our members and give some insight into CSR at Anthony Gold. What is CSR? Essentially, CSR is the way in which an organisation is responsible for, and seeks to deliver, economic, social and environmental benefits to the organisation, its people and the wider community. For law firms, there are many ways this can be done. The most obvious is by giving pro-bono advice – offering our legal skills to those who may not otherwise be able to afford access to justice. Another is fundraising, charitable giving or sponsoring others in their charitable endeavours. However, CSR is far wider than this and should really go to the core of what a firm believes in and stands for. CSR Policies should reflect the firm’s culture and be endorsed from the top down, expanding into the firm’s human resources, business development and facilities management policies. This could include policies on volunteering, mentoring, environmental issues, health and safety, and equality and diversity, as well as the usual fundraising initiatives and pro-bono schemes. CSR at Anthony Gold Over the past 50+ years, at Anthony Gold we’ve developed a strong history of CSR endeavours and established close relationships with causes close to the heart of what we do and what we stand for as a firm. Currently, some of our CSR activities include: • Supporting the London Legal Support Trust, which supports free legal advice centres. We also take part in several annual fundraisers, such as the London Legal Walk and the Great Legal Bake. • Providing pro-bono advice at clinics across London, often during evenings and weekends. We also fundraise for the local advice clinic at the London South Bank University.

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• Supporting Headway East London, South East London and North West Kent, charities that work to improve life after brain injury. This involves taking part in fundraising activities such as runs, dance marathins and even walking over hot coals! We also sponsor a number of their events. • Supporting the Robert Poulton Foundation, a charity that uses singing to engage and enhance the lives of children. • Taking part in fundraising activities for several homelessness charities, including Shelter and the Whitechapel Mission. • Donating towards a number of charitable causes local to our offices in Streatham, London Bridge, and Elephant and Castle. • Introducing an environmental policy, which promotes and encourages recycling, energy efficiency and waste minimisation. • Applying our equality and diversity policy throughout everything we do. I’m extremely proud of our CSR activities and intend to continue building on these and maximising the positive impact we have on the local and wider community. I encourage any firm that has not yet addressed CSR to do so now. It should be at the forefront of everyone’s minds as they go about their day-to-day business, regardless of the role they play within the firm. It’s not the “one-man mission” of the CSR practitioner; it’s now a key part of any successful law firm’s existence.

Sarah Hughes Partner at Anthony Gold


Junior Lawyers Division

THE JUNIOR LAWYERS DIVISION Hardcore JLD members are holding on to summer, says Chair Louise Taylor

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Our next event is the Costs Law Update Seminar by Paragon Costs on 1 November 2017 at 6pm, which will be followed by a drinks reception. This is aimed at those practising in litigation – where, of course, seismic changes are afoot. The seminar will be held at Anthony Gold Solicitors, London Bridge. For full details, visit southlondonjld.wordpress.com and book your place by emailing the address below. For up-to-date news about events, please like our Facebook page or follow us on Twitter. New recruits! We’re currently looking for more committee members. If you’re interested in becoming involved, please email or tweet us a short message about what you could bring to the committee. We’re particularly interested in applicants who work in-house, and those from firms not currently represented on the committee (Anthony Gold, Hanne & Co, Russell-Cooke, Quality Solicitors/Amphlett Lissimore). We’re looking to make a decision in our December meeting, so don’t delay. Website: southlondonjld.wordpress.com Email: sllsjuniorlawyers@gmail.com Twitter: @southlondonjld

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September. When the breeze is cooler, the nights are darker, the leaves are on the turn, and the warm jumpers and winter coats start to find their way out of the cupboard. September is also the month when, by tradition, we host our annual South London Junior Law Division (JLD) Late Summer Drinks Soirée. Once again, this was held in the fantastic Russell-Cooke Holborn offices, where we even made use of the outside courtyard – because we’re glass-half-full (of frozen wine!) sort of people. The evening was generously sponsored by TM Lewin, who organised a prize draw in which our very own committee member, Tom Dickinson, succeeded in winning himself a suit. (I promise it was not a fix.) All in all, a great success – despite the less-than-summery weather. The event also provided an opportunity for both young and aspiring lawyers to practise important networking skills, and meet each other in an informal environment where they could discuss the changing face of the legal profession. It was great to see lots of new faces and representatives from a wide range of South London firms, at differing stages in their careers, and specialising in many different areas of law. We also welcomed some barristers from Lamb Chambers, adding a further opportunity for networking. During the evening, we acquired lots more new members who we hope to see again soon. Membership of the JLD is free: simply join our mailing list by emailing the address below or tweet us.

The South London Law Society

THE JUNIOR LAWYERS DIVISION

Members socialise at the Late Summer Drinks Soirée

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Article

Is the age of the online will dawning? President Gareth Ledsham discusses the Law Commission’s proposals s lawyers in private client practice will be aware, the Law Commission (the Commission) is currently consulting on possible changes to the law governing the making of wills. Specifically, it’s looking at issues in relation to the formalities of making a will and questions of testamentary capacity.

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The Commission points to the fact that the current law in both areas dates back to the 19th century – namely the Wills Act 1837 as regards formalities, and the case of Banks vs Goodfellow (1870) LR 5 QB 549 as regards testamentary capacity. The implication is that it’s not fit for purpose as it doesn’t correspond to the way we lead our lives today, particularly with advances in technology and a developed understanding of mental health issues. The Commission also recognises the fundamental importance that English law places on testamentary freedom, yet notes that 40% of the population currently dies intestate (without a will), which means they have no say on how their estate is dealt with. Experience shows that the law in this area may indeed be ripe for review. A combination of an ageing population (with a corresponding increase in dementia diagnoses), and more complicated family dynamics (with testators having children from two or three different relationships) is certainly contributing to a rise in will disputes, or disputes arising from the effect of the Intestacy Rules. So does this mean we’ll soon be making wills via an app on our smartphones? Not exactly. The Commission is considering online and/or electronic wills (hence some of the reactions to the consultation so far); however, it’s not suggesting any changes just yet. Electronic wills pose some tricky questions – for example, how will we ensure that a will made with today’s technology can be accessed in 50 years’ time? A situation where people have the equivalent of a “Betamax will” that cannot be read on a Blu-ray player is highly undesirable.

In relation to testamentary capacity, the Commission is proposing that the 19th-century Banks vs Goodfellow test be replaced by the test set out in relation to capacity in general in the Mental Capacity Act 2005. Of particular value would be the presumption of capacity and the requirement of someone wishing to challenge testamentary capacity to prove it. As it currently stands, the law can have the result of obliging the proponent of a will to adduce positive evidence of capacity (which may not exist) where there is a suggestion of a lack of capacity. A further welcomed proposed reform relates to undue influence. Since it’s difficult to prove a person was coerced into making a will, successful undue influence cases are rare. But if enacted, the Commission’s proposal could result in a presumption of undue influence in certain circumstances, which would go a considerable way to protecting testators. In summary, any efforts to simplify the will-making process, and therefore encourage people to make a will are to be welcomed. The wish to avoid the bluntness of the intestacy rules and further safeguards to avoid clarify the law of testamentary capacity and protect vulnerable testators are also good news. However, it’s worth noting that a number of the issues identified by the Commission as requiring reform, particularly regarding the formalities of making a will, could easily be mitigated by encouraging people to obtain professionally drafted wills, by properly regulated professionals. The Legal Services Board has already recommended that professional will-writers be regulated, but so far the suggestion has been rejected by government. If you would like to share your views on the Commission’s proposals, the consultation can be found at lawcom.gov.uk/project/wills/ and is open until 10 November 2017.

But what of the other proposals?

Gareth Ledsham

The Commission is also keen to ensure that the wishes of a testator are not subverted due to a technicality in the formalities not being observed. The Commission’s answer to this issue is to provide the courts with a “dispensing” power – in other words, the power to overlook a breach of the formalities.

Partner at Russell-Cooke

While the intent behind this proposal is sound, careful consideration will need to be given to how this is implemented and the concern is that it may lead to more litigation, not less. Of the wills disputed before the courts, cases where formalities are challenged are relatively rare. It’s also suggested that a testator’s intentions need to be proven on the civil standard of the balance of probabilities – but is this enough? Of course, any litigation will face the difficulty encountered in any case involving a will: that the best witness is no longer available.

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Article

“Lobbying for change felt very empowering” Debra Wilson reflects on more than a decade serving as a Housing Law Committee member ’m a solicitor and partner at Anthony Gold, with 25 years’ experience in practising housing law. In 2006, I was appointed a member of the Law Society’s Housing Law Committee (HLC), one of the society’s specialist expert forums. This year, I retired from my term of office and wanted to provide some insight into the role of the HLC and what’s involved in being a committee member.

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How do you get appointed? Vacancies for positions on committees can be found in the Law Society Gazette or online at lawsociety.org.uk. There is an application process and an interview at Chancery Lane, which is usually conducted by the chair of the committee and another committee member or policy adviser. If selected, the interview panel recommends the candidate to the Law Reform Board, and once approved, the appointment is normally for a term of three years. Committee members can be reappointed twice, so the maximum time a person can normally sit on the committee is nine years.

What does the role entail? The work of the HLC covers residential landlord and tenant matters in the private, public and social sectors. The committee is made up of solicitors employed in local authority, housing associations, charities, private practice and not-for-profit organisations. Members come together to discuss and debate topical housing issues that impact on practitioners in the housing field. Leaving aside sectional interest, the HLC considers matters from both a landlord’s and a tenant’s viewpoint. The work largely entails: • Responding on behalf of the Law Society to government consultations from different ministries and departments • Contributing to Law Society practice guidance • Participating in conferences and training material • Working with the Civil Justice Council, the Legal Aid Agency and the Law Commission to advance proposals in the public interest.

How is the business conducted? There are around 12 volunteer experts on the committee, who are usually practising solicitors, but not always – for example, the HLC currently has a solicitor who is now an academic. In addition, a part-time policy adviser, secretariat and/or administrator from the Law Society attends each meeting. Details of forthcoming meetings, agendas and papers are circulated via a web-based service, and there are six meetings a year at Chancery Lane, which usually include lunch.

However, committee business does not end after each meeting, as input is invariably required by email in order to meet deadlines for the submission of responses to consultations. There may also be sub-groups formed from within the committee to examine in more detail certain issues arising in law reform. How the business may need to be conducted is invariably dictated by consultation deadlines. For example, the Localism bill went through consultation in around eight weeks, which included Christmas and the New Year period, despite it being described by the government as “…the most radical reform in social housing in a generation”. There was intense pressure when the second reading debating the bill was scheduled for the same day as the responses were expected, which made many housing practitioners decidedly determined to meet what was a very tight deadline.

Are there further opportunities? Much of the business is “behind the scenes” work, assisting the Law Society in putting forward viewpoints on law reform that are representative of the profession. However, there are other opportunities. My most memorable moment was during the passage of the Localism bill as it entered the House of Lords. I attended the Lords Committee to inform peers about key issues that would affect the elderly and disabled, sharing a platform with representatives from Scope, Mind, Age UK, the National Autistic Society and the Royal National Institute of Blind People (RNIB). Lobbying for change alongside these major charities felt very empowering. The HLC has also provided me with the opportunity to participate in meetings at the Department of Homes and Communities to discuss housing policy issues, which felt very much like my past policy job before I became a solicitor. That job was many years ago, but it’s clear to me that the valuable work experience I received then has continued to shape, and perhaps sharpen, my outlook in striving to be the kind of lawyer I always wanted to be.

Debra Wilson Partner at Anthony Gold

The time spent in meetings counts towards a practitioner’s programme of continuous professional development (CPD).

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Article

The difficulties faced by Jewish and Muslim women seeking a religious divorce In June, Anthony Gold hosted a Faith Seminar at the Supreme Court in London. The aim was to examine the potential hardships facing Jewish and Muslim women going through religious divorces, but also to welcome Nazia Rashid into the firm’s family department. Nazia is an active contributor on the policy issues and family law dilemmas currently facing the Muslim community. The event brought together a panel of committed speakers to cover issues that all family lawyers need to know about as part of their diversity and legal knowledge. David Frei spoke as the legal adviser at the London Beth Din for the orthodox Jewish community, and both he and Nazia pointed out that the law of the land has to be respected in all circumstances. Both faiths have arbitration services that are compliant with the Arbitration Act 1996, and appeals from these bodies can be made to the civil courts. However, the Jewish arbitration service only covers civil matters, not family. So, other than these provisions, everything that comes out of the Islamic Sharia Councils and the Beth Din relates to private, faithrelated ordering, in a non-legal setting. If Jews and Muslims are not observant, and do not seek a faith marriage as well as a civil one, these practices simply do not touch their lives. However, for those who are deeply committed to their beliefs, these religious bodies hold great power and influence over them, and the way in which faith marriages and divorces are handled matters greatly.

Gender inequality The suggestion by both Nazia and David is that, in many circumstances, women of faith are likely to encounter more problems than men. During the evening, Nazia talked about how the Talaq divorce is a simple procedure that can be performed by the husband alone. The woman also can obtain a divorce, but has to follow a much more complex procedure, forcing her to engage with her local Sharia Council in a way that the husband need not. There are an unknown number of Sharia Councils nationwide, each operating according to its own procedures and practices. It’s understood that women receive patchy treatment going through this process. Some women report being under pressure to enter into what is called “mediation” – although not what family law would recognise as such. The third-party “mediator”, most likely an Iman or a community leader, is unregulated in this role and so may put wives under pressure to reconcile or enter into

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discussions about matters, such as finances, even with an abusive husband. Also, the mediator is not neutral, as they have the power to grant or deny the woman’s divorce, and may also have an ongoing relationship with the parties and their families through the local mosque. Nazia mentioned that the Muslim Arbitration Tribunals have also been criticised for not being impartial and exceeding their mandate. For Jewish women, the main problem is that only a man can instigate a divorce, the “Get”, and then the woman must agree. Both parts must be in place, and without that, or the leverage of the courts, or the successful persuasion of the Beth Din, a “limping” Jewish marriage will persist. It’s vital for all family lawyers to know about the leverage afforded by section 10A of the Matrimonial Causes Act 1973. Denise Lester, a member of the Law Society’s Family Law Committee, explained how either party, but typically the wife, can apply to prevent the court from pronouncing decree absolute until the “Get” is obtained. She added that district judges are normally good at providing pressure at this stage. Denise also spoke about how solicitors have to look to the regulatory framework and, in particular, the SRA Code that requires practitioners to “provide services to clients in a way that respects diversity”. The Law Society gives a further steer in its Family Law Protocol, which sets out how the cultural and/or religious implications of divorce should be considered.


Article

From left: David Emmerson, Zahra Shah, Kim Beatson, Denise Lester, Hasen Rasool, Nazia Rashid and David Frei However, all of this is useless if the husband does not care for a civil divorce and is quite happy entrapping his wife. At this point, the Jewish Beth Din may step in. They have powers of influence that go beyond mere persuasion, and can even deny Jewish burial rights to the stubborn spouse. Such drastic measures may be needed if the wife wants to form a new relationship and have children, as any children born to her when she is not religiously divorced are regarded as illegitimate – a status that follows them down the generations. Of course, if the husband is also immune to the Beth Din’s pressure, then there is little more that can be done and the wife becomes an “agunah” (chained woman).

Religious vs civil ceremonies According to David Frei, other than marriages conducted abroad, in the Jewish community there is now no distinction between a Jewish and a state marriage, since both ceremonies are performed by a licensed Rabbi. However, in the Islamic community many Imams have not registered their mosques to be able to conduct a civil marriage or become authorised officials – and it is not clear why. The advantage, says Nazia, would be to avoid the relatively common predicament of Muslim women not actually being married in the eyes of the law, so that on divorce they then discover that they are treated by the state as mere cohabitees. This is not only demeaning to their Islamic principles, but also results in severely reducing their rights to maintenance and possibly asset division, as well as denying them the spousal rights of inheritance.

Islamic divorce can be quicker and easier to obtain than a civil one. A Muslim man can also “marry” up to four wives under Islamic law. Both David and Nazia pointed to practices where prevention was better than cure. If individuals, or their communities, could look to implementing safeguarding procedures, including the parties setting out the terms of their marriage and potential divorce, in documents prepared and signed independently before a marriage, most of the problems might be avoided. With the use of a specific standard faith-based marriage contract, which a husband would enter into freely, certain rights can be shared or equalised either within the marriage or in the event of it ending. Women might then avoid limping marriages, arduous divorce processes, a failed marital status and being pressured not to use the civil courts. Beyond that, it’s a case of “watch this space”. It’s hoped that the conclusions of two parliamentary reviews that have been delayed by this year’s election will provide a steer to the religious communities about how they might better regulate and protect the treatment of their women. But for this event, it’s worth reflecting how notable it was to see committed individuals in both the Jewish and Muslim faiths coming together to empathise with one another and look at ways to tackle shared issues.

Caroline Bowden Consultant mediator at Anthony Gold

Nazia feels that much better education and awareness are necessary so that both men and women know the implications of what they are, and are not, entering into. For example, some may want only to have a religious marriage, perhaps if they are the wealthier party and wish to protect their assets, or because an

The Clapham Omnibus 17


Article

Coffee, codes and change: regulation breakfast “These Handbook changes just don’t make sense!” and “I would be very cautious about publishing my prices online…” were points raised by attendees at a recent Law Society breakfast on the regulatory issues facing the profession The morning focused on three issues: the upcoming overhaul of the Solicitors Regulation Authority (SRA) Handbook; the drive for greater price and service transparency; and changes to the routes for qualification and entry into the profession. Joe Egan, Law Society President, and Mark Hudson, Head of Relationship Management for London and South East, welcomed everyone and set the scene for the event, which had been organised in response to members’ interest in understanding more about the work of The Law Society’s Regulatory Affairs Unit, the major issues on the horizon and how they can get involved. “We do a lot of work on behalf of members – gathering views, lobbying the SRA and building coalitions across the sector to fight for solicitors,” explains Sophia Adams-Bhatti, Director of Legal and Regulatory Policy. “However, I don’t know whether the team itself is that visible, so we hoped this event would both raise the team’s profile and keep members up to date on developments.”

Overhauling the SRA Handbook This is probably the biggest change facing the profession right now. Marzena Lipman, a policy adviser in the Regulatory Affairs Unit, outlined the key changes and some of the implications, adding that further consultation is expected during the autumn on the second phase of reforms. Attendees were concerned about splitting the current Code of Conduct into two shorter codes – one for firms and one for individual solicitors. Without Indicative Behaviours and with fewer clear rules, solicitors could face compliance challenges. A lot of discussion concentrated on the change to allow solicitors to deliver non-reserved activities from unregulated firms. Will clients be able to tell the difference between solicitors in different types of firms? And would they know that they had less protection? These views echoed the Law Society’s concerns, which were forcefully outlined to the SRA last year.

Price and service transparency The SRA is also consulting on new rules for price and service transparency this autumn. Michael Lonergan, also a policy adviser, gave an overview of what has happened since the Competition and Markets Authority began the drive for transparency in December 2016 and set out what the consultation would cover. Naturally, the bulk of the discussion was around publishing price information online.

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Attendees were concerned about how to publish an accurate and meaningful price on a website, given that prices can vary so much depending on a client’s circumstances and legal issues. Even with more transactional services, such as conveyancing and wills, suggesting a price without talking to the client can be difficult. The Law Society has warned the SRA that any changes must be helpful and not misleading to clients. There was a strong view that a client care letter could reflect the actual price better than a standardised estimate published online. President Joe Egan talked about his own experience, saying that his firm publishes fixed prices for wills and divorce services on its website. However, he wasn’t sure whether this price transparency had necessarily brought in more clients. In response to this issue, the Law Society has produced a Transparency Toolkit to help members.

Education and apprenticeships Changes to the routes to qualification are due to be launched after further consultations. Regulatory Policy Manager Chenab Mangat talked through the upcoming Solicitors Qualifying Examination, which will replace the existing routes to qualification from 2020. It was noted that although the SRA has worked constructively to address Law Society concerns in the past, there is still a lot of detail to be worked through. Chenab also encouraged firms to consider taking on apprentices, including in non-legal roles such as office managers. While many attendees were open to the idea, very few had done so, with the main barrier being the time and, in some cases, the relative cost. Chenab discussed the government’s “co-investment” scheme as a way for smaller firms to address this, where the firm pays 10% towards the cost of training an apprentice and the government pays the remaining 90%. He also outlined the benefits for both firms and apprentices, referring to the Law Society’s case studies. To find out more, visit lawsociety.org.uk/supportservices/risk-compliance/regulation or email regulation@lawsociety.org.uk


Article

SRA focuses on high standards in shorter Handbook The Solicitors Regulation Authority (SRA) is proposing a second phase of changes to its rules for solicitors to make them simpler and more focused on high standards, reducing the length of its Handbook by more than 300 pages. The SRA’s Handbook sets out the standards it expects solicitors and firms to meet and the rules they should follow. The SRA has already consulted on the first phase of changes to create a simpler code of conduct and accounts rules. It is now consulting on its other rules, including how it approves firms, and assesses the suitability of those entering the profession. The new Handbook is set to be around 130 pages and would keep rules that help maintain high professional standards, such as the need for compliance officers in all firms. However, it would get rid of some restrictive rules that add cost without sufficient public benefit. Changes include removing: • the need for early checks on students and trainees, so that character and suitability testing is focused on point of entry to the profession • the need for a solicitor owner or manager to seek SRA approval before moving firms or roles. In future, they will inform the SRA • the, often misunderstood, rules around being “qualified to supervise”, which do not provide any guarantee of competence, but prevent solicitors establishing their own firms once they have qualified. The SRA also proposes allowing a solicitor to provide reserved legal services, in certain circumstances, on a freelance basis to the public. They would not be able to hold client money or employ people, but would need appropriate indemnity insurance. This would simplify the current situation where there is a complex series of exemptions for solicitors who want to work in areas such as certain insurance services, law centres and doing pro bono. Other changes aim to make the Handbook easier to use. For instance, the details of how people can appeal SRA decisions are now all grouped in one place. The consultation also includes a revised enforcement policy. It aims to provide more clarity about how, and when, the SRA will, or will not, enforce. Factors it would take account of when considering action

include intent, harm caused, patterns of behaviour, vulnerability of the client, seniority of the solicitor, and any remedial action taken. The policy reflects the findings of the SRA’s “Question of Trust” campaign, which collected the views of 5,400 members of the public and profession. In keeping with the results, the SRA will continue to treat offences, such as misuse of client money, dishonesty and criminal activities, as the most serious. Paul Philip, SRA Chief Executive, said: “This is a simpler Handbook with a sharp focus on what matters – high professional standards and appropriate public protections. “Pages of complex bureaucracy do not benefit anybody. Our approach rightly puts the onus on professional judgement and ethics. Most solicitors do a good job and earn the trust people place in them. But a small minority do not. Our enforcement policy makes it clear when and how we will act if things go wrong. It is essential that both the public and the profession can have confidence that we hold solicitors to account and act in a fair way.” The consultation also includes proposals for transitional arrangement for the introduction of the Solicitors Qualifying Examination (SQE). This is set to be introduced in autumn 2020. All those starting the qualification process from then onwards must take the SQE. However, the SRA wants to make sure that those who have started the process of qualification through the current routes have a fair opportunity to complete it. They will have until 2031 to qualify this way. The consultation “Looking to the future: phase two of our Handbook reforms” runs until 20 December. As part of this programme of work, the SRA is also consulting on publishing better information to help the public make legal choices. The consultations are available at: sra.org.uk/consultations

Relationship Manager’s report As the summer draws to a close and the memories of sunshine, beaches and long warm evenings become a distant memory, I would like to remind you of some important developments for the profession which came to light over the holidays. SRA Handbook consultation Following the Solicitors Regulation Authority’s (SRA) consultations last summer, which considered proposals for the Code of Conduct and Accounts Rules, the regulator announced a series of decisions in June. Despite strong opposition from the Law Society, backed up by a substantial body of evidence, the SRA decided to go ahead with most of its original proposals, including: • Removal of restrictions on solicitors delivering non-reserved services to the public from unregulated entities • A new reduced set of six principles • A new shorter Code of Conduct for Solicitors • A new shorter Code of Conduct for Firms In order to provide you with information about the changes and assist you in considering the implications, we have drafted a briefing which is available on our website. As these are fundamental changes, I would urge you all to review the briefing to ensure that you are as fully informed as possible. The SRA plans to issue a further consultation on the rest of the Handbook proposals, including new authorisation and practice requirements and enforcement strategy in the autumn. The regulator has also confirmed that they are committed to implementing all changes at the same time, and do not anticipate introducing the new requirements before autumn 2018. We will keep you abreast of further developments as soon as we have any more information.

Fixed recoverable costs At the end of July, we heard from Lord Justice Jackson in relation to his review of the Fixed Recoverable Costs regime. Following the review, he recommended that fixed recoverable costs should apply to claims valued up to £25,000 (rather than the £250,000 figure originally considered), with a further fixed recoverable costs regime for some cases of modest complexity up to £100,000. This is a significant scale back to the original proposals, boosting the principle of justice and delivering fairness for all. The Law Society does not oppose fixed recoverable costs in principle. For genuinely low-value and straightforward claims, fixed costs can offer some assurance for both sides in litigation and they avoid protracted disputes about the level of costs. However, we still have reservations that introducing fixed recoverable costs without robust empirical evidence will negatively affect access to justice, if the impact of these proposals is not carefully assessed. We are keen to engage with our members to understand their views and concerns in this area. Please feel free to contact me with comments in relation to Fixed Recoverable Costs or any other areas of interest with regards to your professional practice at bhavni.fowler@lawsociety.org.uk.

Bhavni Fowler Law Society Relationship Manager – London, South East & East

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Forensics

Why “cut-off” matters in drug testing Imagine standing up in court where you’re about to learn whether or not you’ll gain custody of your children. This is a reality for many parents and often hinges on the results of a drug test.

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he fact is, cut-offs play an important role in determining whether or not someone has been using drugs, which can have a major impact on the decision of a family court. That’s why we’ve outlined in plain English what exactly cut-offs are and how they’re used in interpreting the results of a drug test. What is a drug cut-off? A cut-off is a value which the results obtained in the hair drug test are compared against. Where drug levels are above the cut-off, the result is considered as “positive” or “detected”. Where drug levels are below the cut-off, the result is considered as “negative” or “undetected”. Typically, there are two types of drug cut-offs: the analytical cut-off and the user cut-off. The analytical cut-off is based on the limit of the testing method/ technique used to test the hair sample. Essentially, where a positive result gives a reading significantly above the limit of the method/ technique. On the other hand, the user cut-off indicates whether an individual has used drugs within the period covered by the sample and helps to exclude the detection of drugs from environmental contamination. For example, an individual may not have directly smoked any cannabis but was in a car with people who were smoking cannabis. Why do cut-offs matter? Cut-offs matter as not all positive test results mean a donor is currently using drugs. For example, the donor might have taken drugs a few months prior to the time frame of detection a hair test was used to assess. In this case, drugs would most likely be detected in the sample, but the result would be below the analytical cut-off as drug use was clearly in the past. User cut-offs are important as they safeguard donors from “false positives”. The user cut-off makes it clear that even though drugs are

present, the donor hasn’t actually been using drugs within the period covered by the sample tested and has merely been exposed to drugs in their environment. In both cases, cut-offs can protect a donor from a potential miscarriage of justice in a family court. The factors that can affect a cut-off Not all drug tests use the same cut-off values. In fact, the cut-off used in a drug test can be affected by: • The type of drug under assessment – eg in hair samples, the cut-off for cocaine is higher than the cut-off for the metabolite of THC (the main component of cannabis) • The type of sample – eg the cut-offs for hair samples are much lower than for urine samples • The method of analysis used – eg immunoassay testing (initial testing) versus chromatographic methods (follow-up confirmation testing) • The drug testing laboratory – eg different labs may use different procedures and equipment (accredited labs are your best bet for an accurate and reliable result). Overall, analytical and user cut-offs can indicate whether a donor truly has been taking drugs or has simply been exposed to drugs in their environment or used drugs prior to the period covered by the hair sample. This distinction can have a significant impact on the decision of a family court, so cut-offs must be considered carefully when interpreting results for drug use.

John Wicks Cansford Laboratories, Cardiff jwicks@cansford.com

Th hree days can sa ave a lifetime off hurt Critic cal decisions require the b best evidence, quickly! We provide competitively priced UKAS-accredited hair test re esults within 3 days of receipt of the sample in our lab. Establish a clear pattern of drug or alcohol misuse sp panning the last 6 -12 months: • Which drugs d or what level of alcohol has been used and when? • What is the pattern of misuse – is it rising ng or falling? • Has drug ug use cha changed anged in the past wee eks or mo onths?

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Expert Witness

BENDING OVER BACKWARDS: EXPERT WITNESSES CONFER AGAIN IN 2017 You always know it’s autumn when the conference season kicks off. And it’s usually the Conference of the Expert Witness Institute (EWI) that starts it in considerable style.

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his year, on 21 September 2017, over 100 EWI members made their annual pilgrimage, as it were, to their usual conference venue of Church House, looking customarily impressive in its leafy, campus-like location in Westminster. As previously, the conference was notable for its roster of distinguished speakers, from Lord Justice Rupert Jackson, who gave the keynote speech to the inaugural address delivered by Martin Spencer QC (now Mr Justice Spencer) who, in addition to his role as a High Court judge, has assumed the chairmanship of the EWI, and much else besides. Presided over by EWI Governor and Conference Chair, Amanda Stevens, it’s a gathering where lawyers are well placed to garner important insights into the role of the expert witness in court – and where expert witnesses can meet, greet and compare notes with each other as well as with the lawyers they might possibly advise, or from whom they might well receive instructions. Expecting an especially memorable conference this last year, the delegates were not disappointed. We need no reminder that it was Jackson who, in 2009, accepted the monumental task of constructing the famed and often controversial “Jackson Reforms” on the vexed question of costs, implemented finally in 2013. Interviewed just prior to his keynote address by us, Jackson mentioned that his reforms have been the subject of negative comment. The criticisms of his original report were aimed primarily at legal fees of the exorbitant, outrageous and disproportionate variety. Affable and erudite as always, Jackson explored more than a few key areas of scrutiny on fixed recoverable costs. As expert witnesses can and do provide testimony in court which can turn the course of a case one way or another, they do expect to get paid – proportionately and preferably on time. Judging from Jackson’s additional remarks prior to the speech, the EWI members attending this conference were among the first to have sight of – or at least detailed information about – the latest recommendations in his supplemental report, which he hopes will see some implementation before his retirement next year.

The Clapham Omnibus 22

His wide-ranging speech to conference, however, covered many more issues, including matters such as guideline hourly rates… “not satisfactorily controlled”, and inadequate numbers of staff and IT facilities in the civil courts. It would seem, however, that his criticisms of “too high” court fees, have been met with indifference. “I might as well bleat at the sea like King Canute,” he said. “Instead of being reduced, they’ve gone up. I’ve made harsh comments about that, but no one has taken any notice!” Sorry, we can’t help mentioning here that King Canute always gets a bad press on this one. What he was really trying to do was convince his sycophantic courtiers that even he, with all his earthly power, couldn’t control the sea – any more than anyone can turn back the rising tide of new and ever-evolving legislation, as well as burgeoning costs. On medical negligence – “a very difficult subject” – Jackson said that most cases worth up to £100,000 were not suitable either for the fast track, or even the new “intermediate” track which he has recently proposed for other matters. However, other medical negligence claims of under £25,000 could – or might – be dealt with by a “bespoke processes” and a grid of fixed costs. The Supplemental Report “Read my Executive Summary,” is Jackson’s best advice – and a good suggestion too, as it functions as a precis and guide to the main document, while reiterating crucial points. The first of these is a reminder that “In England and Wales, the winning party is entitled to receive costs from the losing party.” Now there’s a grim reality that many overseas/transatlantic clients (you’ve probably got at least some of those) just simply don’t get. In their view it is: (a) incomprehensible; (b) unbelievable and (c) grossly and manifestly unfair. The date of the next EWI Conference, scheduled for September 2018, is one you should definitely include in your office diary.

by Elizabeth Robson Taylor and Phillip Taylor MBE


Financial

A time of change – the evolving legal sector Research has shown that legal clients want more transparency and better value for money when using legal service providers. Tom Curran, CEO at Title Research commented: “Changing urveys conducted by the Legal Ombudsman and YouGov have shown that almost half (49%) of people think the advice consumer behaviour has always driven change amongst the legal sector. The demand for transparent and cost-effective they received from solicitors represented poor value for money, services is growing and legal firms have to cater for this. while 56% of clients want to know the overall cost of a legal service upfront, with 1 in 4 refusing to instruct unless “At Title Research, we introduced a new fee structure The changing that was the case. earlier this year and have since launched a new modern demands on

S

The changing demands on the legal sector mean that solicitors are under increasing pressure to offer services in a way that will appeal to clients. At Title Research, we understand that this means that we need to adapt the way in which we offer our services as well, which is why we have listened to feedback from our clients and have introduced a new fixed-fee pricing structure to deliver even better value for money.

the legal sector mean that solicitors are under increasing pressure to offer services in a way that will appeal to clients.

We now offer fixed fees to locate missing beneficiaries and reconstruct family trees – not only in England and Wales, but also in overseas jurisdictions as well. If we are unable to locate a missing beneficiary, we will provide a quote for insurance to protect against future claims. In the unlikely event that we can’t do this, we will waive our research fees completely so you won’t pay anything.

look for our business. Our new brand reflects the values that we stand for: providing specialist support for the estate administration process. “We firmly believe that any service we offer should be priced fairly, transparently and, wherever possible, on a fixed-fee basis. We will never charge contingency fees like many of our competitors, as we feel this approach is unfair for the client.

Title Research always offers its services based on a price that is agreed before any work is undertaken. We believe this offers a clear solution and the best value for all involved.” For more information on Title Research’s services, visit titleresearch.com or call 0345 87 27 600.

Specialist support for estate administration At Title Research, we provide trusted genealogical research and asset repatriation services to legal professionals. Everything we do is designed to streamline estate administration, take the effort out of locating the correct people or assets, and mitigate the risk of future disputes or complications. • • • •

Locating missing beneficiaries Family tree reconstruction and verification Creating a Statutory Will Administrator searches

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The Clapham Omnibus 23


Probate

Protecting property When somebody dies, the largest element that makes up their estate is usually their home. This is often their own property, filled with a lifetime of memories, keepsakes and belongings. After the owner’s death, this building and its contents take on a very different role to an administrator. The property is viewed in more simple terms and is very often the estate’s most valuable asset. As you all know, it is the role of the estate administrator to “manage” and “realise” these assets, but there is so much more work involved in these two words than meets the eye. They bring a whole new set of challenges to manage. These include the largely unpredictable British weather and the evenings provide criminals with perfect opportunities for acts of burglary and vandalism. Insurance company Aviva shared their claims statistics for the 10 years between 2002-2012, and reported a 150% increase in claims for malicious damage to homes during this period. More vulnerable empty properties, such as probate properties are at even greater risk of damage from vandalism and weather. Empty properties such as these hit the headlines last year when an article in the Telegraph stated: “More than 700,000 residential properties in England are left unoccupied, according to the charity Empty Homes. These vacant properties are often managed by people taking responsibility for the estate or affairs of another person or while a property is awaiting sale. However, many wrongly assume that existing buildings and contents cover would provide adequate protection should something go wrong and as a result, hundreds of thousands of homes are currently uninsured”.

With the demands of your workload, you would perhaps struggle to see how you might arrange them all yourself. This is another area, in addition to our more widely known research, where our experienced staff at Fraser & Fraser would work with you, providing you with a trusted partner to offer support throughout the lifecycle of your case. Things to consider: - Maintenance and security - Empty property insurance - Property valuations - Energy Performance Certificate - Probate sales - Property clearance If you are administering an estate with which you require our assistance or are experiencing difficulties, contact one of our case managers now to discuss how we can help: legal@fraserandfraser.co.uk or 020 7832 1430

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The Clapham Omnibus 24


Technology

Ensuring the long-term growth of your law firm Richard Hugo-Hamman, Executive Chairman of LEAP, discusses change and how to use technology to keep ahead of the curve

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our law firm is a business, and growth and profitability is paramount. You want to see your client base grow and your profits increase. More importantly, you don’t want to go backwards just because you are so busy working in the business that you don’t notice what is happening. You may have other goals – opening another office or being recognised as experts in a niche field. Whatever your measure of success, you want it to endure. Creating consistent, long-term growth can prove elusive. The best way to generate long-term growth is through the regular introduction of change to create new ways of doing things. For many businesses, including law firms, the clearest path to continued success is through the regular implementation of new technology in an ongoing cycle. This needs a culture of innovation so that your whole firm is accustomed to continuous improvement. You can visually plot the impact of innovation on growth and the inevitable progress through to decline using what is called the Sigmoid Curve. The Sigmoid Curve, which can be widely applied to the rise and fall of empires, countries, products and businesses, including law firms. It is comprised of five phases:

1. The introduction of change phase. In an established law firm, this phase can occur when you begin investigating potential areas of improvement. You may consider how you can streamline your processes using a technological solution. The phase culminates in selecting a solution to provide growth and implementing it. 2.The growth phase. The streamlining of processes results in an increase in efficiency, productivity and billing. Improved customer service leads to an expanding client base. 3. The success phase. Your firm is more profitable and is at the peak of success. Complacency is the danger. For many businesses, the elation that comes with success makes it difficult to appreciate that without further innovation, this growth will eventually decline. Your firm doesn’t look for ways to improve or prolong its growth. You believe your success will be long term. 4. The stagnation phase. Your law firm hits a plateau. Growth and revenue stagnates. You are benefitting from the last technology change, but previous efficiencies gained are not having the same impact that they once did, and areas that need improvement for you to keep competitive are now becoming an issue. 5. The decline phase. The markers of success are in decline. Revenue is shrinking and your firm is no longer as profitable as it once was. At this point, it is increasingly difficult to initiate a change event. The decline of growth is not inevitable. The issue lies in businesses reaching a peak and rather than finding ways to improve, they rest on their laurels. They fail to consider that success doesn’t last forever, so they are unable to objectively identify areas of potential improvement in their business.

To achieve long-term growth in your law firm, don’t fall into the trap of thinking the process of decline doesn’t apply to you. Much larger firms have declined and been merged away or even gone out of business, because they believed the process did not apply to them and they did not adapt or innovate.

The best time to start a new “curve” is before you reach the peak of your existing one. That way, you will be starting something new when you still have the resources to take it to new heights. In many respects, law is a slow-moving profession. This can have a negative impact on your business, particularly when your clients have adapted to evolving technologies but you haven’t. If you want to stay competitive, you need to consider how you can meet the expectations of the modern client, as well as the ways you can improve your practice using technology. Seeking a legal software provider for your firm that is committed to innovation will allow your practice to enjoy natural and repeated cycles of growth, creating new efficiencies. By adopting a single provider with a focus on ongoing software development, you will not have to worry about switching providers to chase efficiencies offered by new technologies. LEAP invests more than £8 million a year in research and development. We are continuously innovating solutions that keep our clients from being stuck in the stagnation to decline phases. This commitment to innovation has enabled LEAP to become the most popular practice management platform for law firms.

Don’t wait for the business to decline before attempting to introduce change. At this point, it could become much more difficult. Instead, capitalise on previous efficiencies by regularly introducing change before you hit the success peak. A platform provider dedicated to innovation can help you create natural and repeated cycles of growth, ensuring your firm’s success and profitability rises steadily over time. LEAP has innovated for more than 25 years, insulating clients from the cost of changing systems and introducing compelling new features, enabling clients to take advantage of new technologies without great disruption. leap.co.uk

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Conveyancing Focus

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

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he 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 1 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: conveyancer.org.uk/Regulation-by-CLC where you will find more helpful information, including how to qualify as a CLC Lawyer: conveyancer.org.uk/trainee-lawyer

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 Clapham Omnibus 26


Conveyancing Focus

Sewer indemnity Picture this: you have just purchased your dream home and then get a letter from the local water company informing you that they require access to a sewer located under the beautiful extension to the side of the property, erected just a few years ago! t gets worse‌ The water company inform you that you are responsible for their costs in demolishing the extension or excavating the floor in order to gain access to the sewer. AND no compensation is payable for any damage they cause. Talk about adding insult to injury! Had a build-over agreement been in place, the water company would not be able to remove the building because adequate arrangements would have been taken to protect the sewer from the weight of the building above it.

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Since October 2011, all sewers (drainage pipes) that serve more than one property are considered public sewers. Water companies have the right to enter onto private land to access public sewers to carry out maintenance and repairs. If a property owner wishes to build a property or extend a property over or within 3 metres of a public sewer, they need to enter into a buildover agreement with the appropriate water authority, eg Thames Water. This is to ensure that the building works proposed are not going to damage the sewer or cause it to collapse, and also ensure that suitable means of access by way of a manhole cover

is installed or available. Very often no build-over agreements have been entered into and the water companies have a statutory right to remove any building or structure which prevents access to the sewer. They will look to the property owner to pay for the costs of this and will not be liable for the damage! This is where indemnity insurance can be a very useful conveyancing tool! GCS offers a market-leading policy to cover the not inconsiderable costs that could be incurred if a water company insist on removing a building or part of a building erected over a public sewer. This type of policy is now available using GCS OnLine (gcs-title) and as a bespoke policy directly from our offices. It will also be available very shortly for self-issue from our brand new 6th edition self-issue folder, which will be released early September. If you are interested in receiving one of our new packs, just send an email to communications@gcs-title.co.uk and we will send one out once released.

The TheClapham ClaphamOmnibus Omnibus 27


Conveyancing Focus

Avista –

the new residential environmental search report from Groundsure – is now available from Thames Water Property Searches

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vista is an innovative new environmental search report designed to help conveyancers manage their caseloads efficiently and effectively. There are many benefits to ordering this product: • It’s the first report of its kind to include seven key environmental searches, including planning, so there’s no need to waste time ordering individual reports. • The unique Avista “Action Alert” is a special feature that allows conveyancers to prioritise follow-up work at a glance, so that problems can be targeted before they delay the transaction process. • Avista reduces workload by removing unnecessary information, while allowing users to remain robust in their due diligence. • The content is easy for both conveyancer and client to understand. • The intuitive design also means vital information is easy to locate. Avista is powered by the unique Groundsure IQ engine, which analyses over 106 million data points – on contaminated land, all four major flood risks, ground stability, radon, current and planned energy features and transportation, as well as 10 years of planning data – to produce each report. Conveyancers will also appreciate the improved accuracy and pass rates for sites: the environmental datasets are filtered using Land Registry polygons, so that only results relevant to the property are returned.

Another of the report’s key selling points is the built-in intelligence that allows the data to be filtered so that the results and next-step strategies are highlighted in an easy-to-understand way. “Essentially, you get all the information you need, and none of the information you don’t,” says Danielle Orosa, Strategic Account Manager at Groundsure. “Avista delivers more relevant results that are easier to follow through and clearly prioritised. For example, once a pass has been achieved, the customer is not burdened with unnecessary information. The Avista ‘Action Alert’ will simply inform the customer that there are minimal actions identified. This reduces a similar set of reports from over 100 pages to on average fewer than 20 – a huge bonus for conveyancers and clients alike.” However, in cases where risks are identified, follow-up tasks are prioritised and detailed on a clear recommendations page, helping conveyancers manage each transaction more effectively. Avista is the latest and most advanced of Groundsure’s residential reports. It is priced at £79 excluding VAT and available to order now. At Thames Water Property Searches, we always ensure that our customers have access to all the latest up-to-date reports so that their transactions run as smoothly as possible. To find out more about how this report can benefit your clients, contact our customer experience advisers today on 0845 070 9148

Waterloo sunset Named after the famous battle, Waterloo was formerly marshland and known as Lambeth Marshe, but it was drained in the 18th century and is now remembered in the Lower Marsh street name. aterloo is a hub of entertainment and commerce on the south banks of the River Thames. It’s also and home to Britain’s busiest railway station. The Roupell Street Conservation area is arguably Waterloo’s most popular residential address, with its quaint Victorian cottages that are a huge contrast to the numerous luxury highrise apartment blocks that continue to fill our skies. With easy access to the City and the West End, the South Bank is an obvious choice for professionals, although historically it has often been an overlooked part of our capital. The Cut and Lower Marsh are the commercial heart of Waterloo, featuring an array of independent shops, restaurants and bars, such as Four Corners, Green Smiths, Cubana, and the endless international street food stalls that come to life at lunch times. Recent stalls include fantastic dishes from Nigeria, Senegal, Japan and Turkey. If you’re into the arts, along The Cut you’ll find the Grade II-listed theatre The Old Vic, as well as the less formal Young Vic. And running underneath the platforms and tracks of Waterloo station is Leake Street, also known as “Graffiti Tunnel” or “Banksy

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28 Clapham The Clapham Omnibus The Omnibus 28

Tunnel”, with ever-changing graffiti art all over the walls. There is always something new to see. Throw some parkland into the mix, and Waterloo has plenty to offer the local community. If you fancy forgetting you are in central London for a moment, you can pay a visit to the Green Flag Award-winning Archbishop’s park, which was originally grounds of Lambeth Palace. It has a lovely playground designed by children at Evelina Children’s Hospital. Frank Harris has been trading in the heart of Waterloo since 2001. The Manager, Ashley Whitbourn, has been with the company for more than three years and has expert knowledge of the local area. Ashley’s favourite things about the area are its culture and diversity. With an abundance of bars, shops, restaurants and theatres, and big pushes to improve the infrastructure and development in the area, it really is an exciting place to work. Ashley loves dealing with a diverse portfolio of properties, from listed period houses to the exciting new-build apartment blocks.

Ashley Whitbourn Waterloo & South Bank Sales Manager


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Conveyancing searches?

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Legacies

When you’re gone... More people are realising the importance of making provisions for when they pass away, especially when it comes to taking care of their pets. Many dog owners worry about what might happen if they were to pass away, leaving their beloved four-legged friend behind without an owner. Thankfully, Dogs Trust offer a fantastic free service that aims to give owners peace of mind, knowing that their dog will be loved and cared for should anything happen to them, and helps to ease the minds of friends and family during what is already a distressing time. Amy, a 14-year-old Collie cross, found herself alone when her owner sadly died and the next of kin couldn’t care for her. Because Amy had been registered on the Canine Care Card, a family member was able to hand her over to the care of Dogs Trust Kenilworth. Amy had lived with her owner since she was a puppy and was understandably missing her home comforts, so was placed into temporary foster care before finding a loving new owner, 85-year-old Graham Buckingham from Brinklow, who says: “I’m so lucky to have her in my life and I’m glad that I’ve given her a second chance.” Becoming a Canine Care Card holder is easy. Owners simply complete a registration form and return it to Dogs Trust, who issue them with a wallet-sized card which acts in a similar way to an organ donor card and notifies people of their wishes for their dogs, should anything happen to them.

We will arrange to bring their dog to our nearest rehoming centre, where they will be examined by our expert vet and cared for by our dedicated, trained staff. We will endeavour to find their dog a new owner whose lifestyle and experience match their needs, but if for any reason they cannot be rehomed, rest assured Dogs Trust never puts down a healthy dog, so we will look after them for the rest of their lives.

The Clapham Omnibus 31


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Book Review

ARLIDGE, EADY & SMITH ON CONTEMPT Fifth Edition General Editors: Patricia Londono, David Eady, Professor A T H Smith and Lord Eassie Sweet & Maxwell/Thomson Reuters, May 2017 ISBN: 978 0 41406 380 8 ne of the most enduring of the top-level legal works is Sweet & Maxwell’s Common Law Library. It remains of the highest authoritative value for lawyers, academics and the judiciary. If you want to identify where the law can be found on any major area of substantive importance, look no further than this library of books. And that remains the case with the new fifth edition of the Law of Contempt, which first appeared in 1982. The new edition appears some five years after its predecessor, at a time of substantial technological change, particularly with regard to the role of the juror. As the editors write: “There has been a resurgence of interest in those who have, in various ways, by their actions undermined the integrity of trial by jury”. Therefore, the editors have included some useful commentary on recent case law authorities both here and in Europe. Of course, the temptations of the internet will remain a real concern for the judiciary, while the ever-present issues of human rights laws are very well covered in the new edition, which has incorporated all the supplements since the fourth edition. We found the information on reform from the Law Commission enlightening, specifically the reports on contempt No 335 covering the “dead letter” subject of “scandalising” (still with us apparently!). The report dealing with contempt on the face of the court has been delayed, but will presumably be resurrected for a future edition of this most impressive work. Fortunately, we have useful commentary on the significant changes that affect both civil and criminal contempt, and coverage of Part 81 of the CPR. The editors state that “open justice has been a continuing theme”, and this is especially so with family matters and the protection of journalists’ sources. The text has been revised to include a number of new practice directions and other guidance, which we

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found most useful. They cover matters such as access, reporting restrictions and the publication of judgments, which will be of particular interest to many readers. For the first time, more consideration is given to the access and availability of visual recordings at a time when IT is progressing at a very fast pace. The preface to the book makes some important observations about visual access, although it is, of course, confined to the higher courts at present. It is very clear that this area will require another visit for the next edition, when the fourth industrial revolution really hits the legal world. There is a final word of warning. Most proceedings we are involved in are slow moving and technical, “so that there is little to hold the attention of the casual onlooker”. The advice (or approach) is that “the presence of cameras does not intrude upon or inhibit the court process”. Therefore, rightly so, protection must be afforded to those who may not be able to cope so well with such distractions. In essence, after the comments from experiences in the New Zealand courts, it will be a slow process of evolution – but probably inevitable. A team of 10 additional contributors make this new edition as complete as it can be, and they, together with the editors, have made this work the definitive authority on contempt at a time of change. We cannot do our work as practitioners without these Common Law Library books, so thank you all very much for what you have achieved here.

THE LAW OF SUKUK: Sharia Compliant Securities By Scott Morrison Sweet & Maxwell/Thomson Reuters, June 2017 ISBN: 978 0 41405 537 7 he author, Scott Morrison, describes this work as “a book for the English legal practitioner” – which is spot on, for the subject matter is becoming increasingly important today.

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Do begin this work by reading the short introduction at the beginning, which includes useful commentary on how to use the book. The main, formal introduction is at the beginning of the main text of each sub-book, which is paragraph numbered to correspond with the index, glossary and bibliography. You also get some useful abbreviations explained at the front, which is most helpful. As Morrison says, so far “there has been no authoritative legal treatise on the Islamic capital market instrument, the sakk (plural sukuk)”. He says that there has been no statement available to us so far that has been “directed specifically to the legal community of the UK”. But now we have Morrison’s excellent and helpful commentary to redress the balance. And the book comes at the right time, with London maintaining its position as a centre of global importance and reach concerning Islamic finance, and growing as a “still more consequential centre”, as “the Western capital of Islamic finance and banking” (IFB). So the gap is filled and we are given reliable information and analysis for the practitioner, which the author says is “set out in a fashion that is at once comprehensive and readily comprehensible”. Morrison gives us an up-to-date, definitive treatment, which will be “sufficient for a lawyer or other allied

professional” – for this book will be of interest in other fields too, including consultancy, accounting, investment banking, the government, the treasury and all those involved in tax matters. It’s aimed at those who are “entirely unacquainted with Islamic law, Islamic banking or finance, or Shariacompliant instruments and transactions”. We found it quite sufficient for any experienced professional who receives instructions where there may be a commitment to, or some understanding of, the relevant principles of Islamic law, and for those who may be investing in, or arranging, a sakk issue. As the author says, you can read this treatise from start to finish, although it is intended as a reference work – and an outstanding one it is. Morrison also gives us a tip: the “Succinct Summary” section at the beginning of each chapter gives you the chance to skip “or to more quickly read chapters of less immediate pertinence”, so you can scan selectively… and it works! Morrison’s final point really sums up the book: The Law of Sukuk provides a “foundation for the information, skills, documentary and drafting considerations and other market practices” we seek with this subject. He ends neatly with these words, as the book gives us information of the “greatest utility to the time-pressed practitioner”, and it does just that.

Reviews by Philip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

TheClapham ClaphamOmnibus Omnibus 33 The


Book Review

SHACKLETON ON THE LAW AND PRACTICE OF MEETINGS Fourteenth Edition General Editors: Madeline Cordes and John Pugh-Smith Sweet & Maxwell/Thomson Reuters, July 2017 ISBN: 978 0 41406 372 3 t is worthwhile reading the new 14th edition of Shackleton, which we have reviewed before. It never ceases to disappoint with its clarity and friendliness when facing an awkward meeting and its members. The editors and their five additional contributors hope that it remains “the authoritative source of information on the law and practice of meetings” – and it is just that.

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The new edition gives us a complete statement of the law, with detailed practical guidance that we think will be of great benefit to all people involved at every level of meetings, from the beginner to the old hand. The editors have included two new chapters covering what they call the increasing practice of holding “Virtual Meetings” and “Charity Meetings”. They also review new decision procedures in insolvency proceedings under the Insolvency (England and Wales) Rules 2016. The purpose of this work remains is to provide an essential reference guide, with the sort of information that one finds necessary when preparing, conducting and closing a meeting. The users of this manual range from legal professionals in their everyday practice, company secretaries, directors, local authorities, administrators and clerks, and really any organisation that holds formal meetings. We were particularly impressed with the additional information for local authorities, where meetings are the ever-present activity required to get things done in our liberal democracy. Their procedures and practices do tend to

overlap, so we were delighted to see commentary on new case law authorities. The writing team have covered issues including bias, the delegated powers of officials (often quite substantial today), and access to information. The procedural changes that have arisen from implementation of the Localism Act 2011 are also well covered. It’s not a long book, with a modest 400-odd pages split into 31 chapters and a detailed index, which uses paragraph numbering rather than page numbering, using Sweet & Maxwell’s Legal Taxonomy. The footnotes are particularly useful and have been carefully limited to the amount of detail that the editors (rightly) think meets the balance between a detailed legal text and what is useful for lay people. We remain extremely grateful to Sweet & Maxwell/Thomson Reuters for continuing to publish these titles for us, because it makes life just that much easier at a time when there are so many unrepresented parties are involved in legal matters and we are all expected to have some form of legal expertise and knowledge (even if some of us don’t!).

THE EU MERGER REGULATION: SUBSTANTIVE ISSUES Fifth Edition By Alistair Lindsay and Alison Berridge Sweet & Maxwell/Thomson Reuters, 2017 ISBN: 978 0 41405 259 8 or corporate lawyers, especially those embroiled in advising on competitive and/or anti-competitive practices, the familiar term usually used in transatlantic parlance is “monopolies and mergers”. However, as its title indicates, this book focuses on the latter, specifically in the European context.

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Recently published by Sweet & Maxwell, this long-established title has now come out in a new fifth edition, which certainly attests to its reliability and authority. Scholarly, thorough, technical and precise, the two authors, Alistair Lindsay and Alison Berridge, elucidate and examine in detail the complexities of its broad-based subject matter. A key consideration throughout is “market power”, which can be defined in a number of ways. But whatever the definition, mergers can have profound effects on market power, inevitably either undermining it or enhancing it. In the view of the authors, market power manifests itself as something of a duality, which may be categorised in two ways: original market power and exclusionary market power. Original market power is achieved when a company, alone or with other suppliers, is able either to increase price, quality, variety or possibly innovation relative to the prevailing competitive level, usually for a prolonged period. Exclusionary market power does much the same thing, except that one or more of the company’s competitors may be excluded or marginalised, giving the company what anyone would call unfair competitive advantage.

Much of the book is, in the words of the authors, “devoted to determining whether a merger will create or enhance original or exclusionary market power”, with a view to explaining the trade-off between market power and efficiency. The objectives here centre on analysing the treatment of substantive issues under the EU Merger Regulation and the objectives underlying it. The goals of antitrust policy, say the authors, must be made clear if said policy is to be applied coherently – and the comment is also made that as the law and practice of EU merger control has continued to evolve, this latest edition examines extensively and in detail the key cases that have emerged since the previous edition was published. The book excels as a source of references for further research, as is evident from the massive amount of footnoting alone. Also note that there are four tables that both UK and EU lawyers (either pre or post-Brexit) will doubtless find indispensable: Treaties, Secondary Legislation and Notices; Guidelines; Decisions of the Court of Justice of the EU; and European Commission Merger Decisions. As you may infer, this book covers a vast area of scholarly enquiry, where law and economics are inextricably intertwined. It offers impressive coverage of a formidably wide range of issues pertaining to mergers within the EU and deserves pride of place in every well-stocked law library.

Reviews by Philip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

The Clapham Omnibus 34


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Clapham Omnibus Autumn 2017  
Clapham Omnibus Autumn 2017