CLAPHAM OMNIBUS the journal of the South London Law Society Summer Issue 2017 - southlondonlawsociety.co.uk
Inside this issue:
■ Expert Witness ■ Legacies ■ Junior Lawyers Division ■ News
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5 PUBLISHER Benham Publishing Limited 3tc House 16 Crosby Road North Crosby Liverpool L22 0NY Tel: 0151 236 4141 Fax: 0151 236 0440 email: email@example.com web: benhampublishing.com ADVERTISING AND FEATURES EDITOR Anna Woodhams
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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. 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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Members wishing to submit editorial, please contact us before copy deadline. COVER IMAGE The International Criminal Court (ICC) in The Hague (Credit: © ICC-CPI)
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President’s Review A warm welcome to the summer edition of the Clapham Omnibus, which I hope will provide an interesting read for all our members.
It has been a busy few months for the South London Law Society (SLLS). Most recently, we hosted our AGM, which, in a departure from previous years, we held at the offices of Anthony Gold at London Bridge. We were delighted to welcome Christina Blacklaws, Deputy Vice President of the Law Society, as our guest speaker. Christina spoke about the national Law Society’s stance on a number of important issues that are affecting the profession, including Brexit and the proposed changes to the SRA handbook, training and qualification.
At the beginning of June, I attended the congress of the Federation of European Bars (FBE), which was held at the International Criminal Court at The Hague in the Netherlands. It was a fascinating conference, during which past President of SLLS Professor Sara Chandler QC (Hon) was elected President of the FBE for the forthcoming year. It also provided an excellent opportunity to connect with local law societies (bars) at a time of great uncertainty about how the profession will fit into the postBrexit landscape. You can read more about our visit on page 7.
It was a lively discussion and I’m grateful to all who attended and participated. I would like to extend the SLLS’s thanks to both Christina for giving up her time and to Anthony Gold for their excellent hospitality.
The Federation will host a further congress in London from 9 to 11 November 2017 at the Grange St Paul’s Hotel, with the role of law in climate change as its theme. And with it being on our doorstep, I hope members will take the opportunity to come along and find out more about the FBE and its work, as well as learn about a topic that affects us all.
At the AGM, I was elected for a further one-year term as the SLLS President. I’m delighted to be able to continue serving the society and its members and, as always, would love to hear from any members who have ideas or causes they would like us to consider. I’m also pleased to announce that Sarah Hughes of Anthony Gold was re-elected as Secretary and Andrew Pavlovic of Russell-Cooke as Treasurer. I would like to thank them and the whole committee (who are all volunteers) for their continued support. You can read a full report of the AGM and a message from Christina on pages 10-12. In May, I attended the London regional division of the Sole Practitioners Group, which again provided a forum for a lively group discussion with many very dedicated participants. I’m aware that there are a great many sole practitioners in South London and that practice is certainly not getting any easier, so one of my aims for the forthcoming year is to forge closer links with these individuals and consider how best the SLLS can support them. If you are a sole practitioner reading this, I would be very grateful for your input.
I will round off with a save the date announcement: the SLLS annual dinner will be held on 19 October 2017. By popular demand, we are returning to the Kia Oval. Further details, including guest speaker, to follow. I hope as many as possible will be able to attend this popular event. Best wishes, GARETH LEDSHAM President South London Law Society
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COUNCIL REPORT: MAY 2017 As David Taylor was unable to attend the meeting, Professor Sara Chandler reports Reminding us that we belong to the Law Society of both England and Wales, Council met on 17 May 2017 in Cardiff. The timing was important in the context of the evolving political climate in the Principality and the growing areas of divergence in legal provisions between England and Wales.
The afternoon before the meeting, a number of Council members took the opportunity of a guided tour of the Welsh Assembly, and in the evening a reception and dinner were held for a number of senior stakeholders in Wales, with keynote speaker Mick Antoniw AM, the Counsel General for Wales.
At Council the following day, Dyfed Alsop, Implementation Director for the Welsh Revenue Authority (WRA), gave a presentation on how the WRA will be the first non-ministerial department created by the Welsh Government, collecting Land Transaction Tax and Landfill Disposals Tax from April 2018.
relaxation of the current system, where exemptions are granted only in exceptional cases. We welcomed the simplification in principle, but raised concerns about consumer protection (especially in relation to the PII rules) and the lack of detail in the proposals. You can read the full response online at lawsociety.org.uk
David Lloyd George
Representing the profession
David Dixon, Council Member for South Wales, proposed a motion to rename one of the Law Society’s principal meeting rooms in Chancery Lane after David Lloyd George, to commemorate his achievement as the only solicitor (so far) to become UK prime minister. The proposal was passed by acclamation.
Council was updated on the Law Society’s plans to ensure the interests of our members are well represented during the UK’s 2017 general election campaign and beyond. There is a focus on four main areas: Brexit; access to justice; the protection of human rights; and the standing and integrity of the profession and jurisdiction.
Governance As members know, Council has been discussing a restructure in the governance of the Law Society. Proposals to set up a time-limited Implementation Board to oversee the steps required to establish the Main Board and Appointments Recommendations Committee were overwhelmingly supported. The Council Membership Committee will also be asked to undertake a review of the role and composition of Council itself. You can read more about this in an article written by President Robert Bourns online at lawgazette.co.uk Council also noted the incoming President Joe Egan’s plan, which sets out how he will work to effectively deliver the Law Society’s strategy to support, promote and represent our members. This will include continuing the ‘pride in the profession’ campaign. Promoting the profession Significant ongoing work on issues regarding economic crime were brought to Council's attention. The Law Society responded to the Treasury’s consultation on draft money laundering regulations by supporting the objective to ensure the robustness of the UK’s anti-money-laundering regime, but emphasised the need to avoid imposing excessive burdens on legitimate, law-abiding businesses. You can read the full response online at lawsociety.org.uk The Law Society is arranging webinars and events for firms in relation to the Criminal Finances Bill, which will create two new offences regarding to tax evasion. This will present significant compliance challenges for the law firms affected. The Law Society also responded to the Ministry of Justice’s consultation on corporate liability for economic crime. In my role as a Council Member, I have served on the Regulatory Affairs Board for three years, and David Taylor has served for an even longer period than that. We are the link between Council and the Solicitors Regulation Authority (SRA) in a representative capacity. We have responded to the SRA consultation on waivers, which involves a proposal that any regulatory rules not based on legal requirements can be waived provided that the waiver does not conflict with the regulatory objectives of the Legal Services Act. This would be a
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On Brexit, the Law Society has increased our activity with key stakeholders in government, as well as engaging with the EU Commission, EU Parliament and the UK Permanent Representation to the EU (UKRep). Council members were pleased to hear that, following the publication in The Times of a joint letter from the Law Society and family law organisations, the government had dropped plans to allow local authorities to apply for exemption from social care legislation. This will ensure that children’s legal protection remains intact. My Law Society Council was updated on the launch of the Law Society's new Mental Capacity (Welfare) accreditation and the new Professional Development Centre, which now has more than 45,000 registered users. Members were also reminded that from June, our full practice notes will be available only to those who register with My Law Society. The change has been widely communicated and more than 12,000 have already registered. South London Law Society members should register with My Law Society as soon as possible.
Professor Sara Chandler QC (Hon) Council Member for Voluntary Sector Solicitors
Life in the International Criminal Court
Professor Sara Chandler and Gareth Ledsham at the FBE Spring Congress in June The International Criminal Court (ICC) in The Hague (Credit: © ICC-CPI)
In June, South London Law Society President Gareth Ledsham and I attended the Fédération des Barreaux d’Europe – or Federation of European Bars (FBE) – Spring Congress in the International Criminal Court (ICC) in The Hague on the western coast of the Netherlands. The congress was opened by Yves Oschinsky, the then FBE President, and addressed by: Judge Silvia Fernández de Gurmendi, President of the ICC; David de Knijf, President of the Hague Bar; and David Hooper QC, President of the International Criminal Court Bar Association (ICCBA). During the morning session, we received an insightful insider’s view from an ICC prosecutor and from the Division of Judicial Services of the Registry. We also heard about how a case can be registered and the criteria used to decide whether or not a case will go forward. This was followed by a discussion on deontology (the part of philosophy that studies moral duty), the code of conduct for counsels, the settlement of court room incidents, confidentiality and disciplinary issues before the Court, and the role of the the ICCBA, and local and national bars. After lunch, the afternoon session introduced delegates to practical challenges for defence lawyers, including the risks and difficulties of having to conduct investigations in war zones, the management of legal aid and working with digital files (e-court system) – issues that are now becoming familiar to UK solicitors.
all the bar associations in Poland to express the FBE’s concern at the situation and show our support for them. FBE 50th Congress in London I hope Clapham Omnibus readers will take advantage of the special discounts available for the next three-day FBE Congress in November, to which you are all invited. The theme is climate change, a topic that has never been more important to consider. When: 9-11 November 2017 Where: Grange St Paul’s Hotel, London Cost: £450. Early bird discounts start at £300. The discounted rates are limited to 30 in each category, so it’s advisable to book now at: eventbrite.com/e/fbe-50thcongress-in-london-tickets-32430327984
Professor Sara Chandler QC (Hon) Former President of South London Law Society and President of the Fédération des Barreaux d’Europe ( (FBE)
On the final day of the conference, I began my term of office as President of the FBE – and it has been a whirlwind ever since. I’ve spoken in conferences and events every weekend in venues ´ with the across Europe, from Bilbao to Warsaw, Paris to Poznan, Exeter Legal Sunday in between. One of the issues that has dominated these meetings is Brexit – which is, of course, as big a worry for our continental colleagues as it is to us. In Poland, the independence of judges and lawyers has been threatened over the past 12 months, and my role is to make representations to the appropriate authorities and write to
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Lorna West reports on the Presidents and Secretaries Conference in May On 5-6 May, I attended the annual Presidents and Secretaries Conference at The Law Society in Chancery Lane, London. I participated in sessions on: • Sustainability for the future: membership retention and income generation • Media relations: a beginners guide • International activities for local law societies after Brexit • A forum to share ideas with other national and local law societies.
Eastern Society of Chartered Accountants; and Professor Sara Chandler QC, President of the Fédération des Barreaux d’Europe (FBE).
This year, there was also a range of expert external speakers from the fields of politics, academia and business, including: Sir Ed Davey, MP for Kingston; Susan Smith, President of the South
The conference was a fantastic opportunity to meet members of other local law societies, share ideas and experiences, and emphasise that in light of Brexit it’s crucial that we promote and support our profession by working together to create stability in legal services.
SLLS member and Partner at Hanne & Co
South London lawyers – we need you! SBA The Solicitors’ Charity is scouting for volunteer talent in South London This is an excellent opportunity for you to help fellow solicitors in times of personal financial need. By volunteering as an SBA Area Representative, you can do much to make positive changes to those experiencing personal financial hardship. There are also advantages to you – here are some of them: • Sense of achievement – you can witness lives improving directly from the benefit of your involvement. • Add experience to your CV – studies carried out by TimeBank show 73% of employers hire people with a history of volunteering. • Expand your professional network – SBA’s volunteer team is 70-strong and comprises current and former solicitors from every walk in legal life. In some areas, our volunteers work closely alongside local law societies to support their own legal communities. Each Area Representative has their own reasons for volunteering but, whatever their motivation, they have two things in common: they all understand the pressures of life in the law and they want to make a difference by helping those who turn to SBA in times of need. The role The main function of our volunteers is to support SBA’s application process by meeting applicants and beneficiaries on a one-to-one basis. These meetings, usually take place in applicants’ homes. Where needed, volunteers assist with completing the application form and verifying relevant underlying documentary evidence on our behalf. The Area Representative’s report on their visit is critical in helping SBA assess the most effective way of providing help.
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Ideal candidates • Good communication and people skills are essential. • Volunteers need to be able to listen, empathise and gather information without judgement. • An understanding and commitment to confidentially is fundamental, as too is a willingness to undertake refresher training in such areas as Data Protection. Though speed and flexibility are often needed when new cases arise, Area Representatives always retain the option to decline a case if it is not compatible with other demands on their time. Conversely, applicants are provided with advance notice of the person visiting on our behalf, to forestall any potential professional conflict. At present, volunteers typically cover three to four cases per year. Each case involves roughly four hours work. All reasonable travel expenses are reimbursed. We provide an in-depth induction for all new volunteers at our premises in Wandsworth and we have developed e-learning training in, for example, Data Protection. To discuss opportunities for volunteering as an SBA Area Representative, please contact Sue Ellis or Dervilla Carroll at firstname.lastname@example.org T: 020 8675 6440. We’d be delighted to hear from you. “My role as Area Representative is essentially one of facilitation – to support the information gathering and give each person’s application the best chance of progressing. As an SBA volunteer, you’re there to do a job and help people to find solutions for themselves, in a totally non-judgemental way. Because there, for the grace of God, go all of us.” Rhona Rowland, SBA Area Representative
LAW SOCIETY EVENTS AT CHANCERY LANE, LONDON 7 Aug 2017
Judicial appointments: intensive mock interview workshop AM/PM session
8 Aug 2017
Compliance support forum for in-house lawyers
21 Aug 2017
Advanced criminal advocacy
5 Sep 2017
Doing legal business between the UK and China
7 Sep 2017
In-house Division seminar – routes to the board: a seat at the table for in-house lawyers
12 Sep 2017
16 Sep 2017
Junior Lawyer Forum: practical advice and skills for junior lawyers
19 Sep 2017
Private Client Section seminars – Recent developments in private client practice
21 Sep 2017
Judicial appointments: interview training for solicitors
21 Sep 2017
Small Firms Division annual conference 2017
22 Sep 2017
Judicial appointments: interview training for solicitors
25 Sep 2017
Compliance support forum for in-house lawyers
27 Sep 2017
Legal services in a data driven world
27 Sep 2017
In-house Division seminar: mapping the moral compass of in-house lawyers
28 Sep 2017
Civil Litigation Autumn half-day conference 2017
For more information about these events, please visit the Law Society website:
DATES FOR YOUR DIARY 19 October
SAVE THE DATE! THURSDAY 19 OCTOBER 2017
ON LA W
Three-course meal with notable speaker from the legal community.
SLLA Annual Dinner, The Kia Oval, London
THE SOUTH LONDON LAW SOCIETY
Fédération des Barreaux d’Europe (FBE) 50th Congress
Grange St Paul’s Hotel, London
KIA OVAL CRICKET GROUND
£450. Early bird discounts start at £300
Book now at: eventbrite.com/e/fbe-50th-congress-in-london-tickets32430327984
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The South London Law Society
ANNUAL GENERAL MEETING On Thursday 15 June, Anthony Gold Solicitors hosted the South London Law Society (SLLS) AGM. The evening also featured an interesting and insightful talk by Christina Blacklaws, Vice President of the Law Society, who members had a chance to meet over a glass of wine and nibbles before proceedings began. Christina Blacklaws, Law Society Vice President President’s update After Christina’s talk, our President, Gareth Ledsham of Russell Cooke, provided an overview of what has been a very busy year for the SLLS: • Our twinning with the Fédération des Barreaux d’Europe (FBE), or Federation of European Bars. Gareth noted our privilege in having Professor Sara Chandler as a member of our committee, who is currently the President of the FBE and also a professor at London South Bank University. He also discussed the importance of collaborating with European Bars (societies), even more so now in light of Brexit. • Our attendance at the FBE congress in Luxembourg in October 2016 and the Hague in June this year, to establish a stronger relationship between the SLLS and members of the European Bars. • The success of our annual dinner at the Oval in November 2016, with guest speaker Robert Bourns, President of the Law Society, which drew a record attendance. • Our response to recent Solicitors Regulation Authority (SRA) consultations, and Gareth’s meeting with Neil Buckley at the Legal Services Board to discuss their concerns surrounding these changes and how to work better with local law societies to ensure the voices of members are heard. • Gareth’s meeting with the Sole Practitioners Group to discuss how they can be better represented by the SLLS – a goal for next year being to increase our sole practitioner membership. • Our priority for next year to expand our membership base and ensure we are doing all we can to represent the wide range of legal practitioners in the South London area. Treasurer’s update Our Treasurer, Andrew Pavlovic of Russell Cooke, gave a brief financial update: • Despite funding November’s annual dinner, we still have healthy cash reserves remaining.
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• We already have a number of interested sponsors for this year’s annual dinner. • Membership remains predominantly from the larger firms in South London, and this year we will be discussing how to widen the membership to include smaller firms, sole practitioners and in-house legal professionals. The accounts were the proposed, seconded and approved. Council Member’s update Our Council Member, David Taylor of Hanne and Co, was unable to attend the AGM and Christina Blacklaws kindly offered to provide an update in his absence. The main update was in relation to the governance review, the introduction of a main board and formation of a number of subcommittees. It’s hoped this will be considered and concluded at the Law Society AGM in July, after which it will be necessary to consider the composition of Council itself. Election of officers We elected (or re-elected!) our officers as follows: • President: Gareth Ledsham of Russell Cooke • Treasurer: Andrew Pavlovic of Russell Cooke • Honourable Secretary: Sarah Hughes of Anthony Gold It was then time for more wine, canapés and conversation! The evening was a great opportunity for our members to hear from the future President of the Law Society about her views on the current changes and her thoughts on the challenges facing our profession today, and to network with other SLLS members in an informal and friendly setting. A huge thank you to all who attended, and particularly to Christina Blacklaws for providing her insight and inviting members to give their views on the topics discussed.
The South London Law Society
ANNUAL GENERAL MEETING
During her talk, Christina Blacklaws presented some of the key issues currently facing the Law Society, which sparked very interesting and topical discussion... SRA Handbook and Code of Conduct
Brexit and the 2017 general election
The Law Society has been busy listening to the voices of its members on the proposed changes and taking part in roundtable discussions to consider its response to the Solicitors Regulation Authority (SRA) consultation.
A brief discussion around Brexit highlighted the importance of mutual access and recognition, and that negotiations are key, with a concern from the Law Society that a “hard Brexit” would be damaging to our profession and prevent us from upholding the rule of law.
The changes would mean that there are two codes of conduct – one for solicitors and one for firms – and that solicitors would be able to freely deliver services outside of regulated firms. Feedback from Law Society members has indicated that they are responding almost with one voice – and that is against the changes. While research commissioned by the Law Society has found that 82% of solicitors are worried about the proposed changes, and 86% of consumers feel that solicitors should be insured.
Speaking on the recent general election, it was noted that the new Lord Chancellor David Lidington supports the independence of the judiciary and recognises the importance of our relationship with the European Union – there are now 51 solicitors in parliament, eight of whom are new members. These are positive developments for the legal profession, but the uncertainty surrounding the general election means it’s impossible to predict what changes may be afoot.
Solicitors Qualifying Examination (SQE) As part of the Training for Tomorrow programme, the SRA has proposed a new approach to qualification, which has been described as a “modern, up-to-date assessment”.
NOTE FROM THE EDITOR
In light of consultation responses to the first proposal, the SRA has made some revisions and it was reported that while the Law Society was “horrified” at the first proposal, the second is thought to be “significantly better”, although not without its problems.
The Clapham Omnibus is your magazine, so please do get involved.
In very broad terms, the SQE is a new centralised exam with a pass or fail result and is intended to replace the Legal Practice Course (LPC ) and Common Professional Examination (CPE). It comprises two parts:
If you’d like to write an article or have some news to share, email me at email@example.com
• SQE stage 1 – Functioning Legal Knowledge Assessments (typically completed prior to work experience)
Thanks, Samantha Whitaker editor
• SQE stage 2 – Practical Legal Skills Assessments (typically completed after work experience) However, even though it’s intended to be in place by September 2020, it’s still unclear exactly what the new SQE will entail.
Overall, it was thought that the proposed changes to the Handbook and the introduction of the SQE represent a fundamental undermining of our profession, don’t protect the consumer and have the potential to damage solicitors, our brand and our clients.
The overwhelming concern is around exactly when the specific proposals would be made clear and how members, and indeed the profession, can prepare for these changes with such uncertainty. There are also serious concerns about maintaining standards, ensuring diversity in the profession and avoiding the SQE being seen as a lesser alternative to the traditional LPC/CPE route.
SOUTH LONDON LAW SOCIETY southlondonlawsociety.co.uk
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“I am so proud to be a solicitor” The Law Society’s Deputy Vice President Christina Blacklaws on her plans to boost pro bono and fly the flag for women in leadership when she takes office next year What a great pleasure it was to join your AGM and convivial social event afterwards. I learned so much about the recent work of the South London Law Society and its plans for the future, and had the privilege of speaking to the assembled (small but perfectly formed!) group. I began my talk be reminiscing about being a South London lawyer myself, living in Lewisham and working in Brixton and Deptford for 20 years – rewarding work, fun times and wonderful colleagues. Indeed, when I joined the profession, being a solicitor was a job for life. My choice to start my career in an all-woman ‘legal aid’ community law practice would now be considered unconventional, crazy perhaps. And yet, in the early 90s there was not so much difference between most law firms. Today, of course, the largest firms are global entities and severe cuts have rendered legal aid all but extinct. In many ways, the professional landscape is very different now; however, the key principals of the rule of law and access to justice endure. At the Law Society, this provides the foundation for all our policy work. I have been involved with the Law Society as a council member since 2002, originally for childcare, and now for the Women Lawyers Division. In that time, I have chaired the Family Law Committee and the Legal Affairs and Policy Board, which both strive to influence, engage and, if required, do battle with government across all policy issues. In my current role as Deputy Vice President, I’ve been fortunate to meet with many of my colleagues across the country to discuss the issues that are important to them and their clients. I am always humbled by the good work (some paid for, some not) of the profession, and it’s important that we recognise and celebrate this. However, in a changing and highly competitive market, there is no room for complacency and much more that can be achieved. Going forward One of the many opportunities available to the President of the Law Society is to develop ‘key themes’. When I take office in 2018, as only the sixth female President, you won’t be surprised to learn that I will be focussing on women in leadership. The centenary of women being able to enter the profession falls in my presidential year, and although we have come a long way since then – with women now representing almost half of the profession – we still have much to do to ensure we have good representation of women in our leadership. In private practice, women still only account for 20% of partners. This is not right and, as research confirms, is not good for business. I will build upon the profession’s fundamental principals with this and my other themes: innovation and the future practice of law; and pro bono and access to justice. Innovation and modernisation are becoming key concepts in the
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legal sector as we develop new technologies, and agile working initiatives and operating models to help us work smarter. And we should not underestimate the significance that technology will play imminently in the delivery of modern legal services. Of course, excellence of client service is paramount for all law firms and it’s vital to link technology with positive, value-added outcomes for clients. I am so proud to be a solicitor. We make a huge contribution to society in general and the communities within which we live and work. As a trustee of LawWorks, I’m a passionate proponent for pro bono. We can, do and should use our skills to benefit others less fortunate than ourselves. However, this will never be a substitute for a properly funded legal aid system. I spent 20 years of my life fighting for this in South London and will continue from Chancery Lane. But I will need your help, so I very much look forward to working with the SLLS on campaigns and engagement with government and other stakeholders over the coming two years.
Christina Blacklaws Deputy Vice President of the Law Society
Junior Lawyers Division
THE JUNIOR LAWYERS DIVISION New JLD Chair Louise Taylor on the crucial activity of her committee both on and off stage With the departure of our previous Chair, Mala Palmer, to pastures new and far (well, North London), I was appointed the new Chair of the South London JLD in April. Firstly, I would like to take the opportunity to introduce my brilliant committee. Susanne Seaton (solicitor, Hanne & Co) has stepped up to replace me as Vice-Chair, and is also our Treasurer. Nikki Basin (paralegal, Anthony Gold) is our Secretary, while Tom Dickinson (trainee, Anthony Gold,) and Vanessa Asante (trainee, Hanne & Co) are managing our social media and website respectively. Our membership is well looked after by Akilah Douglas (solicitor, Quality Solicitors/Amphlett Lissimore), and sponsorship by Lois Tackie-Oblie (legal assistant, The Challenge). And finally, on events we have Ashmeet Wadwa (trainee, Russell Cooke) and Rachel Hyneman (solicitor, Anthony Gold). If you would like to find out more about our committee, visit southlondonjld.wordpress.com
Chair Leanne Maund and Julie Brannan of the SRA. It was thought that this debate and the first consultation responses were significant in convincing the SRA to make some welcome changes to their original proposals. This is a good reminder of the great importance for local JLD committee groups to be active in responding to proposed policy changes that affect those we represent. For a more detailed consideration of the new SQE system and how this uncertain period may impact aspiring lawyers, see page 14. Building confidence
As well as our behind the scenes work, ‘on stage’ we were delighted to welcome careers expert Zena Everett to present an evening on ‘The Science of Confidence’ in May. Far better than simply a talk, Zena stepped through the proscenium arch into the audience to facilitate a lively and inclusive discussion among attendees. We talked in pairs, small groups and all together Over the past few months, the committee has been quite busy about our future goals and how to achieve them. And were behind the scenes. We’re now working more closely with the Law encouraged to challenge each other’s usual (we discovered) Society and have a regular representative at our meetings to help insurmountable self-constructed barriers to success, learning us develop and expand the South East network. There are also that such challenges can become surmountable through some very exciting discussions happening among a group of different thought processes. committees outside of the JLD and, dare I say it, outside of law, The openness of the multi-participatory discussion created a with a view to developing a broader network for young space for attendees to vocalise personal worries, opinions and professionals in London. More on this soon… concerns, and meant that the drinks reception afterwards was a refreshingly relaxed and enjoyable opportunity to network. Find National networking out more about Zena on page 15. In January, I attended the National JLD Committee Meeting, which was a great opportunity to meet up with committee members from other local groups. Perhaps unsurprisingly, the main topic of discussion was the Solicitors Regulation Authority (SRA) Solicitors’ Qualification Exam (SQE).
Our next event, ‘Last of the Summer Soiree’, will take place at Russell Cooke’s offices at 8 Bedford Row on 7 September 2017. If you are a lawyer up to five years PQE, or aspiring lawyer, please join us for drinks and delicious canapés.
The National Committee and many regional JLD committee groups, including our own, took part in two SRA consultation periods about the proposed system, which was initially, in parts at least, extremely vague and included some rather concerning proposals. I was enthused to see just how effective the first consultation response had been.
Also, if you’re interested becoming a member of South London JLD, it’s free. All you need to do is join our mailing list by emailing Akilah Douglas at firstname.lastname@example.org For news about events, please like our Facebook Page and follow us on Twitter @southlondonjld Our website is southlondonjld.wordpress.com
The National Committee also spoke highly of a debate and Q&A organised last year by the South London JLD, between its then
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Junior Lawyers Division
The uncertain future of trainee solicitors With the introduction of the SQE on the horizon, Nikki Basin explains what the new solicitor super-exam will mean for trainees Traditionally, routes to qualifying as a solicitor have consisted of studying a law degree or completing the Common Professional Examinations (CPE), also commonly known as the Graduate Diploma in Law (GDL). Subsequently, students were required to pass the Legal Practice Course (LPC) and complete an 18month or two-year training contract with an approved provider, as well as passing the Professional Skills Course (PSC). More flexibility has been given to this route over the past few years by allowing paralegals to qualify as solicitors through the equivalent means route, and students to undertake the solicitor apprenticeship to cut costs and the pressure of obtaining a training contract. But this is not considered enough by the regulator, and now the Solicitors Regulation Authority (SRA) has introduced yet more uncertainty into the system. The SRA has proposed a new route of qualification in England and Wales to “ensure high, consistent and professional standards” across the profession. It will involve a standardised assessment, known as the Solicitors Qualifying Examination (SQE), which is due to come into effect from September 2020. From that point, the LPC, GDL and PSC will become obsolete – although those who hold a qualifying or exempting law degree, LPC, GDL, CPE or are currently training under the existing regime may still be able to qualify under the current system. Further clarification around the arrangements for current students is expected later this year. However, once the SQE has been introduced, anyone who commences legal education will need to pass the new exams to qualify as a solicitor. They will also need to hold a law degree or equivalent qualification, complete two years of qualifying work experience and pass the character and suitability test. The new regime The SQE is broken down into two stages, which are designed to test the legal knowledge and practical legal skills of prospective trainee solicitors. Stage 1 consists of six functioning legal knowledge assessments and one practical skills assessment, while the second involves 10 practical legal skills assessments that are similar to the current LPC. It’s proposed that prospective solicitors will have six years from their stage 1 assessment to complete stage 2. Generally, after completing the stage 1 assessment, prospective solicitors will need to undertake two years of work experience. The work experience could be under a formal training contract, through a placement as part of a sandwich degree, or by working in a student law clinic or as an apprentice or paralegal. There will be no requirement for both contentious and noncontentious seats to be undertaken, although both will be tested under the SQE. The work experience can be completed through a maximum of four placements, and the employer will be
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required to sign a declaration that the individual has had the opportunity to develop some or all of the legal skills required. There has been much criticism of this aspect of the new qualifying exam by professionals, academics and organisations. At the South London Junior Lawyers Division, we’re particularly concerned that there will be no checklist of skills to complete or need for the employer to confirm exactly what skills the trainee has developed. This is extremely important, as work experience can vary from firm to firm depending on its size and the resources available. If no checklist or confirmation of skills gained is provided, then the individual may not necessarily have the expertise needed to sit the stage 2 exam. Courses will be run to help trainees prepare for the exams, but these courses will not be mandatory. And both the preparatory courses and examination itself will, of course, incur a cost – although the amount is not yet known. However, the SRA has stated that their modelling “suggests that the SQE (and training) would cost students less than the LPC”. We’re concerned that those from less privileged backgrounds who may not be able to afford the cost of an SQE preparatory course on top of the exam fees will be at a significant disadvantage when it comes to taking the exam, further reducing access to the profession rather than enabling it. The SRA believes that its new system will provide more flexibility by removing the requirement for a training contract and “introduce transparency and competitive pressures to drive up standards and reduce costs”. However, the skills required to pass the SQE remain unclear, and may only be attainable to some by attending costly preparatory courses. Until some of these questions are answered, there remains great uncertainty for those wishing to qualifying as a solicitor in the future.
Nikki Basin Paralegal at Anthony Gold and Secretary of the South London Junior Lawyers Division Committee
Junior Lawyers Division
“I don’t have the answers, you do” Careers expert Zena Everett on why some people are more successful than others and how everyone needs to flip around their thinking Tell us a bit about how you became a careers expert…
How do you manage your own work/life balance?
Ten years ago, I had a business that recruited recruiters and I became interested in why some people were more successful than others. In recruitment, we categorise people – type As and type Bs – but why are some people As? Given the same educational background, what makes some people ‘talent’ and others not? I discovered that it comes down to having goals and the confidence to know what you want and ask for it – which was a big life lesson. I went off and retrained, because I wanted to help other people realise this and realise their ambitions.
I do a lot of work with clients about being productive and working in flow, so I try to follow my own advice. When I’m not with clients, I often go to a cafe or the Institute of Directors, which helps me focus on the task in hand. I also allow myself to do a little work on a Saturday morning if I need to, rather than beating myself up about working at the weekend. If I can get up and get it done quickly, then I can relax and really enjoy my family time afterwards. Also, because I work alone a lot, I need to reenergise with people, so I’m also a trustee of a charity called Quo Vadis Trust, which provides social housing for people with mental ill health. It’s great to be part of team and build something, and for me that satisfies that need.
What did you learn from your training? One of the most important things I learned about coaching is that I don’t have the answers, the client does. And whatever I think the obvious option is for them, it’s usually the wrong one. So I can offer suggestions – particularly for something practical, like preparing for a job interview. But when it comes to big questions, such as next career steps, the client is the only one with the right answer. My job is to help them find it.
And now you’ve written a book? Yes! It’s a manual for everybody, wherever they’re at in their career. One part focusses on job-searching techniques, such as writing a great CV, and the other is about helping you become more successful by monitoring how you think about yourself.
Who are your clients?
Can you explain the title, Mind Flip?
I’ve worked with people across many different industries. Typically, they’re at senior executive level or on their way to that, and they’ve often got a big job and they’re figuring out how to do it. I help them by discussing what a successful person in that role would be like: how would they think, feel and behave? Then we look at how they can match themselves to their job description. Unfortunately, we often discount our positives and think of ourselves as how we were maybe a few years ago, rather than how other people see us now. I can help resolve that disconnect.
The concept of ‘Mind Flip’ is based on my belief that you need to stop thinking about yourself and focus on what other people think of you. The idea that you have to go out and sell yourself is an outmoded concept; instead, you should talk about what you can do for others. Offer solutions to problems and other people’s headaches by demonstrating how you’ve done similar things before. Terms like being ‘a dynamic team player’ are irrelevant – what the market wants is evidence and facts.
What advice can you give us about developing a ‘personal brand’? If you use the definition that a ‘personal brand’ is what other people say about you when you’re not in the room, you need to make sure that you’re in control of that and feeding that opinion. People often think in images and pictures, so it can be helpful to use metaphors. What kind of image do you want to leave people with?
How did you find the publishing process? It was tougher than I thought it would be! But luckily I’ve had some really good editors and an excellent agent. There were times when I thought it was never going to happen, or it was becoming too distracting and time-consuming. But I had to check myself, because I know it’s going to help people. And even if just one person says it’s cleared something up for them, then it’s worth it. Buy Mind Flip (Filament Publishing, May 2017, £14.99) on Amazon or at zenaeverett.com
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Good intentions not enough in wage calculations Accurate calculations of the National Minimum Wage continue to cause headaches for employers, with an employment tribunal acknowledging the complexity, saying there is no single key to unlock every case. Jane Crosby comments from Hart Brown.
ecently, unintentional underpayments in staff pay packets have affected major retailers like John Lewis and Tesco, while others have been waiting for an employment tribunal decision on when sleeping night shift staff are eligible for the National Minimum Wage (NMW). For John Lewis, a staff-friendly policy of aggregated wages to provide regular monthly income has resulted in the company having to provision £36 million for underpayments over a six-year period, despite most under-payments being technical, rather than actual. Staff wages were smoothed out over the year so they received the same amount each month, rather than being paid for the exact hours worked. The problem arose when individuals worked extra hours in a month and the aggregate monthly payment was less than the payment due for the hours worked under the NMW Regulations. Argos and Tesco have made similar payroll mistakes. Tesco is having to compensate 14,000 staff at a cost of £10 million for employees who had made salary contributions to pensions, childcare and other schemes, which resulted in their pay falling below the National Living Wage level. Tesco has blamed its payroll software for the error, but for many employers the difficulty lies in correctly interpreting the NMW Regulations. One such thorny area is payment for employees who sleep overnight in the workplace or are on call. Previously, such workers were often paid a flat rate for when they were sleeping and their normal hourly rate when they were required to attend to their duties. This approach was challenged on the basis that it did not comply with the NMW Regulations and three such cases were recently heard together by the Employment Appeal Tribunal: Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake. But for employers hoping for certainty on the issue there has been frustration, with the Tribunal saying that there is no ‘bright line’ and that businesses must conduct a ‘multifactorial evaluation’. Their findings highlighted four key factors. 1. The reason for engaging the worker – if an employee is on site to comply with a regulatory or contractual obligation, then the individual is more likely to be classed as working throughout their whole shift, even if they are asleep or with nothing to do.
2. Restrictions on the worker’s activities – if a worker would be disciplined for failing to remain on stand-by, for example by leaving the premises, then the NMW is more likely to apply than in situations where someone is able to come and go as they please. 3. The degree of responsibility – if a worker is required to keep a listening ear and respond, such as a care worker, they are more likely to be treated as ‘working’ than someone who is at home on-call. 4. The immediacy of the requirement to provide services – this includes both the speed and the level of responsibility of a worker. If they are the one who will decide whether to intervene and then take the action, they are more likely to be categorised as working than someone who is woken and instructed by the responsible member of staff. “The Tribunal’s decision highlights just how tricky this area of the law can be, but compliance is a serious business,” said employment law expert Jane Crosby. “It’s sometimes difficult to understand what’s right and what’s wrong, and borderline cases will be difficult to decide, but if there’s any doubt it pays to investigate further as getting it wrong may mean a company faces claims for back-pay, which can go back six years. As well as the financial costs, there may be enforcement action by HMRC, and reputational damage.” The National Living Wage is a premium tier of the National Minimum Wage for eligible workers aged over 25. For those eligible workers aged under 25, there are further categories of age-related rates. (see chart below)* Although given as hourly rates, the NMW Regulations apply to any eligible worker, whether or not they are paid by the hour and calculations must be made according to the payment basis. For example, someone paid annually or by piece-work can use a formula to work out the equivalent hourly rate and check if they’re being paid the right amount.
Jane Crosby specialist in commercial litigation and employment law at Hart Brown
25 and over
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Helping the legal profession to arrange representation
With Stephen Tosswill
Two years ago, a familiar problem came to a head. We were asked to represent a client at a distant court. No one from our office was free to go there, so we started phoning barristersâ€™ chambers and other solicitors.
orty phone calls later, we gave up. Nobody could be found to represent the client. This was particularly frustrating because the court in question is very busy. Doubtless there were many lawyers who could have helped. But we did not know who they were, and they did not know we were looking for them. Many professional colleagues reported similar problems. Those seeking representation often failed to find it, while those offering representation were sometimes short of work. Various websites had tried to address these problems, but the problems had remained. What was needed?
The profession is weary of the exaggerated claims often made for digital technology. But I hope to have provided an easy digital solution to the problems discussed here.
Stephen Tosswill Principal, Tosswill & Co Solicitors London SW2 1HP
The answer seemed to be an interactive website, designed to be as accessible and comprehensive as possible. The website would have to be open to all legal professionals. It would need to be free, userfriendly, reliable and secure. It would also have to cover all fields of law, and include all courts and major tribunals. With these requirements in mind, and with specialist help, I set about devising the website that became availablelawyers.co.uk. Extensive testing has ensured that the site functions as planned. Early feedback has been very positive. Users throughout the profession recognise how the website can help them. AvailableLawyers provides a means of requesting/offering a service, and connects its users. Former barriers between users are removed. These features are characteristic of websites that have introduced new solutions in other areas. Two well-known examples are eBay (buyers/sellers of goods) and Uber (taxi passengers/drivers).
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A living legend Every year, we care for over 15,000 dogs who have been abandoned, abused or neglected. Dogs Trust never puts down a healthy dog. So with the help of our wonderful supporters, we can give these deserving dogs a second chance in life. Providing expert veterinary care, specialist rehabilitation equipment and training facilities doesn’t come cheaply. Not to mention all the vital everyday necessities like food, bedding and heating. Dogs Trust receives no government funding, so we wouldn’t be able to run our 20 state-of-the-art rehoming centres around the UK without the generous donations from our supporters. A third of our funds come from gifts included in people’s Wills. One such supporter, Dr Thomas Preston, has pledged to leave a legacy to Dogs Trust in his Will, after he and his beloved wife Pat spent 40 years of their married life looking after and rescuing neglected and unwanted dogs. Pat always had dogs from a young age, and couldn’t bear to see them injured or ill-treated. Sadly she passed away in 2014, leaving behind Tom and her darling dogs. It was the shared belief that no healthy dog should be put down that led her to make the incredibly generous decision to leave us a gift in her Will. So if you love dogs like we do, please consider leaving a legacy to Dogs Trust.
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Legacy giving Did you know that legacy giving is fundamental to the amazing work of many charities? In fact, legacy income is estimated to be worth almost £2.5 billion a year to charities in the UK. Many charities rely on these gifts to help them carry out their vital work. Two out of three guide dogs and six out of 10 life boat launches are paid for by gifts in Wills, as is over a third of Cancer Research UK’s life-saving work. Unfortunately, there is evidence of a disconnect between people’s intentions to give money in their Wills and those doing so. Research shows that 35% of those surveyed want to leave money to charity in their Will, but only 6.3% do. Remember A Charity works in collaboration with more than 160 member charities, the UK and Scottish governments and The Law Society to do what no single charity can do alone – making legacy giving a social norm.
A report published by the Cabinet Office, working in partnership with Remember A Charity, showed that when professional advisors like you ask their clients if they would like to leave a gift to charity in their Will, they were twice as likely to give. Making provision for everything that’s important. A Will can be used to look after everything that your client cares about, from family and friends, to charity. Leaving a gift to a charity that your clients are passionate about can make an enormous difference. If we can just make a small increase in the percentage of people leaving a gift in their Will, from 6.3% to 10%, it is estimated we could raise over £1 billion extra for UK charities – the equivalent of a further 10 Comic Relief appeals a year. Find out more at rememberacharity.org.uk
Simply mention ‘including a charity’ to your clients. Most people don’t realise they can use their Will to take care of not just their family, but everything else that’s important to them as well by leaving a gift to charity. Solicitors can play a key role in the Will-making process by reminding their clients that leaving a gift to their favourite charity is an option.
Remember A Charity is part of the Institute of Fundraising, a registered charity in England and Wales (No. 1079573) and in Scotland (No. SC038971).
Your clients may not care that it’s illegal to handle a salmon suspiciously. However, they may like to know they can leave a gift to charity in their Will. rememberacharity.org.uk
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Richard Hugo-Hamman LEAP Executive Chairman (L) Peter Baverstock LEAP UK CEO (R)
LEAP celebrates 1,000 UK firm milestone LEAP Legal Software has doubled its UK customer base in the last 12 months and has now passed the 1,000 firm mark, with over 6,000 end-users of its integrated case-management platform.
he first legal practice in the UK signed up to LEAP in January 2015. In April 2016, there were 500 firms using the software and now there are more than 1,000. This rapid growth in firms switching to LEAP has been accelerated by the recent launch of LEAP 365, which enables a lawyer to access up-to-date documents, matter and accounting information from whichever device they are using worldwide. LEAP 365 includes the UK’s largest library of automated forms, document management for the firm and clients, time recording, billing and client accounting. “We’re very proud to have over a thousand law firms using LEAP software in the UK. All these firms are using one product on one technology. We believe this is a first in the UK legal market,” comments LEAP UK CEO Peter Baverstock. “Our unique ability to electronically convert data from the old outdated system many firms are still languishing on has helped us to smoothly bring these firms into the 21st century to compete more effectively. Our conversion team in Edinburgh have done wonders!”
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To help with its rapid growth, LEAP undertook an independent, anonymous employee survey in February 2017. Statistics show that 92% of the workforce understand the company’s mission and how they can influence it, 94% see a clear link between their work and the company’s goals and objectives, and 95% feel LEAP is a good employer. Richard Hugo-Hamman, LEAP Executive Chairman, adds: “Success has many fathers, but in this instance the popularity of LEAP among UK law firms can largely be attributed to Peter Baverstock and the rest of his leadership team. They have faced and conquered tremendous scaling-up challenges, and to have more than a thousand law firms operating more efficiently and profitably than ever before is testament to their skills and the quality of service they provide.
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“About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.” So said Elihu Root, the brilliant American lawyer, statesman and 1912 Nobel Peace Prize winner. His words got me thinking about how often we encounter clients, old and new, who need to be dissuaded from taking a potentially dangerous course of action, be it an unwise investment, encashment or other decisions. It can be a daunting prospect and requires a deft and diplomatic touch, especially when the advice is not welcome. lanning how to offer advice without accounting for an individual’s profession is like planning to perform surgery without first taking the patient’s medical history. Well, maybe that’s a bit dramatic, as the dangers of failure are probably greater for the surgeon and the patient, but the point remains the same. Financial planning for any person will have the bestintended outcome only if performed and applied with reference to the variables that differentiate that person’s life from anyone else. In this sense, the provision of financial and investment advice for members of any profession should be approached as a specialty, specifically targeting the distinct, comprehensive needs that come with it. Lawyers, particularly, require financial expertise and experience focused on the unique characteristics created by successfully practicing law. A lawyer may, in many ways, be like owners or executives of a business; yet, they are also quite
different in many respects, particularly when they practice at a firm, and not in-house at a company. It is understanding and providing for those differences that sets an excellent advisor apart from an adequate one. The former will understand the unique set of challenges and opportunities presented by clients who are lawyers which include, but are not restricted to, the following: Earnings flow – the transition from salaried employment to monthly drawings and a profit share in the case of equity partners, the need for cash contingency, short-term asset management strategies and planning for irregular capital distributions. Tax planning – the pitfalls and advantages of self-employment, mitigating income tax and payments on account. Estimating tax obligations and planning for them is one of the single most important factors in a planning relationship. Tax obligations are likely to be substantial and can dramatically impact on liquidity throughout the year. Restricted lists – having an advice model flexible enough to cater for and accommodate a firm’s compliance restrictions and avoid recommendations and investments that would breach them. Risk management and assessment – in our experience, lawyers are afforded the opportunity to invest alongside their clients in private enterprises. While these opportunities may be quite attractive, they may also be unacceptably risky. The right level of due diligence, discipline, experience and balance in approaching them it essential. Understand and challenge – on many fronts. Understand that lawyers tend to be trained to minimise risk, which in financial planning and investment terms can be unwise and may require challenge. Understand that they appreciate efficiency and brevity yet should be challenged to spend time on the critical task of attending to their own financial plans. Understand that they are trained and predisposed to be analytical and to ask questions, never taking anything for granted and rarely relying on the opinions of others so a good advisor must be prepared to spend extra time explaining concepts, providing information and challenging beliefs. Here at S4 Financial, we have often found that new clients come to us having delegated their affairs too lightly in the past and suffered as a result. Not all law firms are the same in terms of their offering, experience, range and depth of expertise and approach. The same is true of financial advisors.
Steven Vallery Business Development Director S4 Financial Limited Contact: 01276 34932
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PRACTICE MANAGEMENT IN A MODERN WORLD EDITH ROBERTSON
All professional service firms have undergone dramatic changes within the last 20 years, and barristers chambers are no different. To enable chambers to continue growing and being successful, the strategic practice management of chambers has become increasingly important. The efficient running of the Clerks room plays a large part in the effective practice management of both chambers and its individual members. Clerks are required to manage the client interface both on an individual member and chambers level.
responsibility to ensure that each task has the correct time allocated to allow the barrister to have the time to spend on a set of instructions. This is especially important when it comes to trials (and more complicated paperwork tasks) as not only has the time been reserved (and paid for!) by the client, there is also the need for the barrister to have the uninterrupted time to consider properly the matter in hand. Wellbeing at the Bar is a new initiative from the Bar Council and clerks are only too well aware that not allowing proper time for preparation can add unnecessary pressure on barristers, and in the end will lead to a reduction in productivity and general balance in their lives.
The careful management of incoming work from chambers clients is of paramount importance. In the not too distant past, a set of instructions would be sent into chambers and would be turned around with no real pressure once the barrister could get to it. Nowadays, however, that has all changed. With the general pace that business is now conducted, both professional and lay clients expect a more speedy response to their instructions. Solicitors are Changes in legal aid, the Jackson reforms and the expansion under pressure from their clients to be more efficient, and that in international work has also increased the challenges within pressure has been passed onto the Bar. It is therefore important as practice management. The challenges for clerks is to monitor the the effective “gate-keepers” that clerks manage the client’s marketplace, identify new clients or sources of work, expectations by ascertaining at an early stage the be aware of what competitor sets are doing and nature of the instructions and the timescales that maximise opportunities, and encourage the kind must be worked within. This allows for the work to “The careful of changes that will sustain the organisation in the be diarised, ensuring that the work is monitored at management of long term. all stages and ultimately that promised deadlines are met. Using the diary system allows clerks to incoming work A large part of the ability to maximise opportunities better allocate and manage barristers’ time, from chambers relies on the marketing of chambers. Chambers are instantly seeing how committed a barrister is and now effectively brands, and thus careful consideration clients is of being able to assess their current workflow. is constantly given to both the type and level of paramount marketing. Clerks work with chambers marketing Due to the myriad of equally important demands committees to ensure that resources are used and ever-changing commitments, each individual importance.” effectively. Chambers marketing ranges from thought barrister’s diary is a complicated matrix which leadership through regular seminars, to networking requires continuous management on a daily (or events and the more traditional drinks parties. Often, chambers more quiet often hourly!), weekly and longer term basis. senior clerks will also have individual budgets for more targeted Nowadays, there is also a more forward-thinking approach to the marketing. The nature of marketing of chambers is ever changing in negotiation of counsel’s fees. Very often, clients have a budget in response to changes in the legal market. Marketing is not only about mind and clerks will be able to match suitable counsel to the entertaining – a lot of chambers are now focussing resources on proposed budget. In general, clerks will take a proactive approach social media as a form of marketing and a vehicle to improve in making sure that the fees are agreed in advance for each piece brand awareness. of work. In short, chambers nowadays are run by highly professional staff One innovation that has completely changed the way clerks operate who are acutely aware that to be successful they need to serve and is the amount of instructions that are sent by e-mail. This has not only manage both their external market – i.e. solicitors and the like – and had an impact on the expectation for a quick turnaround, but has their internal market, the members of chambers. Balancing these two also meant that junior clerks are spending a lot of their time printing areas is no mean task, but one that is achieved by the best-run sets. out and collating sets of instructions, jobs previously done by the By EDITH ROBERTSON and MARK BALL solicitors firm. Falcon Chambers In addition, the successful practice management of chambers means balancing the demands of chambers clients alongside ensuring that each individual barrister is able to manage the workload that is being placed upon them. It is the clerks
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Mediation and mental health in early dispute resolution An increasing number of people are directly or indirectly impacted by mental health issues, either through a family member, close friend or colleague. Within the workplace, disputes arising out of, or comprising mental health issues, present significant challenges for both the employee and the employer. In May 2017, as part of Mental Health Awareness week, CEDR brought together cross-industry mediators and other experts to explore primarily how mediation could be used to manage and resolve workplace disputes. Benefits of using mediation If left unaddressed, mental health sufferers can feel increasingly isolated from and disenchanted by their employer and their colleagues, which is often a factor in the development of disputes. However, the adaptability, flexibility and party control over the process of mediation lends itself well to early interventions, sometimes bridging the gap between employees and employers, bringing the former back into the fold and breaking down the often-held perception of a cold, “uncaring employer”. Building on this, the commercial case for supporting those with mental health issues, particularly through mediation, is overwhelming. High staff turnover, aggravated periods of employee absence and diminished productivity are all by-products of failure to address mental health concerns among the workforce. The pace with which mediations can be set up and the high settlement or positive progression rate aid in getting people back to work and drastically reducing the time and resources that can be spent on grievances and tribunals. Mediation – adapting the process There are numerous considerations that need to be taken into account when mediating employment workplace disputes with mental health elements. Firstly, mediation is a voluntary process, except where prescribed by the courts or a contract. This aspect must be stressed when arranging to mediate with someone who suffers from mental health problems. They need to feel able to partake in the process of their own volition, as to pressurise them may exacerbate not only their condition, but also the prospect of resolving the dispute. Furthermore, the inherent flexibility of the process allows the parties to adapt the location and timing of both the mediation day and the individual sessions. With respect to location, some may find it uncomfortable to mediate on the premises of the company or indeed within a formal corporate environment. Just as the mediator must be noticeably neutral, the same may apply to the location of the mediation. Also, the nature of the condition or the extent to which the employee-employer relationship has potentially deteriorated may necessitate establishing a framework for how the parties convene and ground-rules for how they interact. Mediator – specific challenges Workplace disputes present challenges not only to the overarching mediation process, but also to the selection of the mediator.
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I. Choice of the mediator Party autonomy over the process is crucial to all mediations, but especially those with a mental health component. Parties need to feel empowered with respect to the choice of the mediator and need to feel exceptionally comfortable with this individual, as the mediation will often explore complex and deeply personal issues. II. Neutrality of the mediator The mediation needs to be demonstrably neutral to remove the destructive “them vs me” dynamic that can develop, especially between an employee and employer. The mediator needs to emphasise their role as a neutral third party, wholly removed from the interests of the employers. If the mediator is seen to align with the employer, this will often dissuade the employee from partaking in the mediation or, at the very least. diminish the chances of resolving the dispute on the day. III. Pace of the mediation CEDR’s mediator training stresses that the pace of the mediation is important. Mediators need to ensure that mediations do not stall, and that progress towards a settlement is made. This has to be balanced with sufficient exploration of the facts and issues, but entrenched discussions are a waste of time, money and energy. Therefore, in commercial mediation, mediators and parties frequently work at a high intensity; however, this may not be appropriate when mediating disputes with mental health elements. Mediators need to be skilled in recognising when to slow down the process. IV. Know your limits Mediation should not be seen as a standalone process. Mediators need to be able to understand when the mental health sufferer needs to see a medical professional; this can be either before the mediation commences or at any point throughout. Final thoughts In CEDR’s experience, there is an increasing number of employment disputes involving individuals being treated for or recuperating from mental health issues. But mediation is, when taking all of the above considerations into account, an effective tool for resolving them. Co-authored: Susanne Schuler (Assistant Director of Training at CEDR and mediator) and Caroline Sheridan (CEDR Chambers Mediator)
PROBATE PURCHASERS With Tim Jackson What made you start a service specifically for purchasing probate properties? Since our inception in 2008, we have transacted over £60 million of property through SecureASale and a fair proportion of those homes have been in probate, purchased directly from executors or beneficiaries of the estate. The loss of a family member is often a very stressful time for all concerned and we wanted to differentiate our offering to ensure that we could provide the smoothest service possible in these circumstances. We are unique in the industry in that we only purchase with our own funds, not third-party investors, which means that we can stand by our offers in full confidence. Where do you buy? We focus on London and the suburbs. By limiting our geographical catchment area, we can make decisions quickly and knowledgably in-house without the need for external valuation advice. This provides a level of certainty to our clients that our competitors generally struggle to match. How do probate purchases typically differ from the normal ‘quick sale’ model? Quite considerably in fact. There are a number of features common to probate sales that are often of equal importance to the vendor as the price. These include selling the house in its current condition, which is very often cluttered with old furniture, clothing, newspapers, you name it. Also, very often, time is not of the essence as probate can take weeks or months to be granted and the sale cannot complete until it does. However, in this situation vendors understandably want peace of mind that the offer will remain on the table until they are in a position to exchange contracts, which is something we offer.
We have purchased probate properties in as little as 48 hours at one end of the scale and with a 6-month completion at the other. Having the strong balance sheet we do allows us to ensure that cash flow is never an issue, and because we offer a chain-free solution we can offer such flexibility. Why would a vendor sell to you rather than an end-user? In the current market, chain-free purchasers are hard to come by. Many buy-to-let investors have been put off buying by the 3% Stamp Duty increase on second homes and the withdrawal of mortgage interest relief leaving owner occupiers as the main source of offers. Many probates are, by the very nature of the previous occupiers, family houses, something which rules out most first-time buyers on cost alone. Older purchasers, who would be interested, usually have something to sell, which means that the sale will be stuck in a chain. At what is often a stressful time for the beneficiaries of the estate, the simplicity and peace of mind that our service can offer is of paramount importance. How do you source your properties? We traditionally purchase probate properties via people contacting us through our website probatepurchasers.com and through estate agents on the open market. Increasingly however, we are being referred by solicitors to their clients as another option to consider. We have worked hard to cement our reputation as a reliable, straightforward purchaser and many solicitors who have acted on sales that we have been involved with recognise this. probatepurchasers.com is a new service from SecureASale Ltd, one of London’s longest established home-buying companies. Founded in 2008 by Tim Jackson and Eli Robinson, the firm prides itself on offering a straightforward, fast and reliable buying service and is a founder member of the National Association of Property Buyers and registered with The Property Ombudsman. How can solicitors or their clients contact you? 020 7117 6660 / firstname.lastname@example.org
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Tailored regulation from a specialist The Council for Licensed Conveyancers (CLC) was established in 1985 to foster competition and innovation in the conveyancing market.
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 practiceâ€™s requirements, whatever your business model, we will be more than happy to meet with you, or discuss them over the telephone. Please email email@example.com
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
ITâ€™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
Time to get on board? Our latest Continual Professional Development (CPD) event at the STEAM Museum was just the ticket – time to get on board? Did you know that all CPD courses run by Thames Water Property Searches (TWPS) are designed to help ensure you’re in line with most recent Solicitors Regulation Authority (SRA) guidelines? There is no need to count CPD hours since new guidelines were issued last November. Instead, conveyancers are required to identify and address any learning and development needs, to make sure knowledge and skills are up to date and that they are competent to practice. That’s why it was full steam ahead for attendees who came to our latest commercial conveyancing CPD event, held at the iconic STEAM Museum in Swindon in June. During the day-long conference, delegates got the lowdown on the latest industry news from experts such as Land Data CEO Jan Boothroyd, who gave an ‘informative’ talk on updates to various Local Authority searches, as well as their commercial applications. Another highlight was Paul Clark, consultant at Cripps LLP, who delivered an energetic commercial property workshop, covering issues such as lease drafting – especially relevant after the recent landmark case involving Marks & Spencer – and the registration gap, as well as exploring a variety of potentially problematic Stamp Duty Land Tax (SDLT) situations.
There were also talks from Alex Barr of Third Bounce on how conveyancers can win more clients and TWPS’s own account manager Jason Harper, who delved into the world of Sustainable Urban Drainage Systems (SuDS). To top the day off, delegates were given a history lesson from one of the STEAM Museum’s volunteers. Michelle Challis from Gardner Leader, said: “Solicitors from our conveyancing team regularly attend Thames Water CPD events and the recent commercial property event held at the Steam Museum in Swindon was excellent. The speakers were all very knowledgeable and the event, as usual, was well planned, informative and engaging.” Getting up to speed with your continuing competence is easy with TWPS. Take a look at our upcoming schedule of CPD events to see what we’ve got to offer your business: thameswater-propertysearches.co.uk/LatestNews/1698 To reserve your place at one of our events – or to chat with a member of our Customer Experience team – please call: 0113 953 1756 or email: firstname.lastname@example.org
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It’s all in the title – PSG Financial Services discuss their simplified approach to insurance Conveyancing is a tricky and often complicated business. Every property (and every client!) is different and there are so many more products and services available to you than ever before, meaning there are more considerations that could potentially hold up a sale. One thing that can affect the transaction is finding a defect in the title documents or even that something is missing completely. Rather than spending valuable time and client funds in investigating and resolving the problem, it is increasingly common practice to indemnify against any issues that may arise out of the actual or perceived defect in the title. Some defects, such as Restrictive Covenants on the adjoining land, can be hundreds of years old. For example, there are some Edwardian properties in Brighton and Hove at which the owners are prohibited to display their washing in a “lewd and lascivious manner”. Such defects are unlikely to ever end in a claim, but it is much quicker and easier to take out a policy which covers the client should any lawful action be taken against them in respect of the defect, subsequently leading to financial loss somewhere down the line. Japanese knotweed There are, of course, more important matters than how someone displays their washing and there are newer policies out there which are commonly used in the conveyancing process.
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28 Clapham The Clapham Omnibus The Omnibus 28
Recently, there have been stories in the news relating to Japanese knotweed, the hardy perennial plant with a nasty reputation for its ability to grow through concrete. Now considered a large enough risk to be factored into the TA6 explanatory notes and as part of the requirements of some mortgage lenders, Japanese knotweed can have considerable impact on a property’s stability and value. It can grow up to 20cm per day, so even if a homebuyer is unaware of the risk at the time of purchase, they may find themselves with an issue later on. The total annual cost of dealing with Japanese knotweed, including clearing costs and repairs to infrastructure and the built environment, is over £150 million in England alone. A simple and cost effective indemnity policy from PSG can allay any concerns from the outset, and is valid for up to five years from the date the policy was provided. Providing cover for up to £20,000 in financial losses should the weed appear on the property where previously its presence was unknown, this policy can help to put a homebuyers mind at rest. PSG Financial Services was launched in 2013 to complement the core services offered by PSG to conveyancing solicitors throughout England and Wales. Offering a quick and easy access route to purchasing Title and Legal Indemnity policies, PSG offers instant cover for over 35 residential and commercial polices when ordered online, plus an offline brokering service for more complex cases. Now with simplified price bandings to ensure solicitors can access the best level of indemnity to suit their requirements, it has never been easier to source an appropriate policy quickly and at a competitive price. For more information on Title and Legal Indemnity Insurance from PSG, contact the National Customer Services Team Email: firstname.lastname@example.org Visit: psgconnect.co.uk or Telephone: 01226 320079
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 among the legal sector. The demand for transparent and cost-effective services is they received from solicitors represented poor value for money, 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 “The changing “At Title Research, we introduced a new fee structure that was the case. earlier this year and have since launched a new modern demands on
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. 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
• Specialist insurance and risk mitigation • Locating Wills, documents and addresses • Valuing probate and managing UK assets • Administering overseas assets
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The importance of experts Martin Spencer QC
By Phillip Taylor MBE, Reviews Editor of The Barrister and Head of Richmond Green Chambers “It has never been more important to highlight the critical role expert witnesses play in supporting the proper administration of justice and to establish the highest standards of best practice,” says Martin Spencer QC, who has just become the new Chair of the Expert Witness Institute (EWI).
Today, expert witnesses play a vital role across civil, criminal and family proceedings in the administration of justice. An expert witness is someone who, by his or her training, education, skill or experience, is known to have specialised expertise or knowledge and that other people may rely on their opinion.
And how right he is, because the use of expert evidence in legal proceedings has been a long-standing tradition, with the first recorded use of an expert witness in the UK courts in 1782.
“In providing independent assistance to the court by way of objective, unbiased opinion in relation to matters within their expertise, they make complex issues understandable to lawyers, judges and juries,” comments Spencer. The Procedure Rules for court work are quite clear: the expert performs his or her duty to the court. That duty overrides any obligation to a party from whom the expert is receiving instructions. The ‘knock-on’ effect with modern litigation is that the number and types of experts are increasing. “They have become an integral part of the court process,” declares Spencer. Many lawyers use experts in criminal proceedings in areas as diverse as accident investigations, forensic linguistics and the increased use of DNA evidence. In civil and family courts, experts cover areas such as forensic accounting, civil engineering, medical, and many more. It is recognised that, with litigation entering increasingly complex areas, the effective use of a good expert witness is increasingly important. “There is no doubt that high-quality expert evidence will continue to play an important role in all court proceedings,” says Spencer. He adds that “there will always be a need for expert opinion about questions that are outside the knowledge, skill and experience of the court”. To meet this challenge, instructing lawyers need to ensure they work only with experts who understand their duties within the latest procedure rules, while experts need to take responsibility for their development and training to ensure they meet the highest standards. The EWI effectively oversees this, as the importance of experts grows with the changing face of litigation in the 21st century.
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INTERNATIONAL TRUST LAWS Second Edition by Paolo Panico Oxford University Press, 2017 ISBN: 978 0 19875 422 0 ere, presented is a truly global approach to the subject, across no less than 30 jurisdictions worldwide (we have counted them), with the largest number of H cited cases emanating from the UK and the US. Scotland and, predictably, Jersey also loom large in this thorough and erudite examination of virtually every conceivable aspect of trusts. “Trusts,” says author, Professor Paolo Panico, “have established themselves as the main estate planning and wealth management arrangement of the western legal tradition.” “Trusts” along with “trade” and “tea”, he adds, “were the “three Ts” traditionally associated with British civilisation.” Good thing that Henry VIII failed in his attempt to legislate them out of existence in 1535. The author also quotes a particularly famous comment on trusts as ‘perhaps the greatest and most distinctive achievement of English lawyers.” Since the first edition of this distinguished work was published in 2010 (and for that matter, long before that), trusts have become notable for their popularity and ubiquity internationally. To the surprise of some, they have become popular under special legislation in what the author refers to as “jurisdictions with no historical contacts with the rules of English equity”, such as civil and mixed jurisdictions in Asia, Latin America and, recently, Eastern Europe. Over 14 chapters and more than 850 pages, Panico pursues this vast and complex subject with scholarly, yet cheerful thoroughness. “Trusts,” he says, “have traditionally been used by individuals to establish rules governing the administration and enjoyment of their property after their death and, in many cases, to retain a certain degree of control over said property during their lifetimes”. There are, of course, almost innumerable variations and ramifications pertaining to trusts,
which are carefully elucidated in this book. Here, then, is an area of law which cannot fail to be taken seriously by serious players. So it is refreshing that we discover – in the book’s list of dedications – that it has been written, at least partially, in memory of the author’s family cat, a Manx; a presumably tail-less and engaging creature who sadly died before the book reached its definitive printed version. However, a kindly fate intervened in the shape of Scotia, a kitten (presumably Scottish) who emerged from under a fence to provide further inspiration and encouragement as a “pisicotherapist”. Fortunately, we are informed in the footnote that “pisica” is the Romanian word for “cat!” It cannot be coincidental that chapter 13 of the book, in discussing the approaches taken in various jurisdictions to enforce non-charitable purpose trusts, refers to specific rules for exceptional cases, such as trusts for the care of pets! The book’s orientation is global, and its subject matter vast and detailed. It covers analyses of the laws and the often parallel, as well as contrasting, approaches to trusts over a range of jurisdictions. It purports to identify trends and developments, explains the author, but does not attempt to provide “a comprehensive operational guidance to the laws of any particular jurisdiction.” Its useful comparative approach, however, will obviously be of special interest to comparative lawyers, as well as academics and law students interested in, or specialising in, this rapidly expanding field. Furthermore, with its detailed index, table of contents, extensive footnoting and 60 pages of tables of cases and legislation, the book is reassuringly easy to navigate.
PRINCIPLES OF MEDICAL LAW Fourth Edition Edited by Judith Laing and Jean McHale Oxford University Press, 2017 ISBN: 978 0 19873 251 8 edical law: now there’s a complicated subject for you to get your head around, especially if you are a practitioner who specialises – or intends to specialise – in what has become a rapidly expanding area of law. Fortunately for you, the Oxford University Press has brought out a new and completely updated edition of Principles of Medical Law.
Long regarded as the definitive work in this area, this new edition, the fourth in fact, has been completely updated to encompass the new developments that have transpired since the previous edition appeared in 2010. Writing in the foreword, Ian Kennedy and Andrew Grubb recall the day when medical law was a “relative newcomer”, in legal specialities. In their words, it “barely existed, such that you were free to make it up as you went along!” It’s something of a sobering thought that that day has long gone. Nevertheless, they add, “this work always had in its genesis an ambition to serve academics, practitioners and judges alike” and, with its depth of scholarship and coverage, has since maintained “a claim to have fulfilled that ambition with style.” As medical law is dependent on specialist practitioners, the emergence of a new edition of this classic text is fortuitous; especially so when the NHS is coping with an ageing population – and when even the man in the street can tell you that the government has set aside billions in funding for medical litigation. Private medical practitioners are, of course, privately insured. Developments such as these broadly coincide with what the editors refer to as the “fundamental rights-based approach in the courtroom….” as (to cite only one
example), doctors are made aware of a duty to provide information to patients. Other areas of concern include end of life care and the determination of mental capacity. Given the complexity and enormous scope of the subject, the book itself is a collaborative work of a distinguished and expert writing team: two editors, two consultant editors and upwards of 16 other contributors. Across almost 1,300 pages, seven parts and 22 articles, the book offers detailed analysis and commentary on a formidably broad range of other issues, from the organisation and regulation of health care, to actions arising from birth, to consent to treatment, to the regulation of medicinal products and medical devices – and much more. Here is a field fraught with uncertainties and these too are dealt with in a measured, frank and analytical manner. Of additional and indeed vital assistance to the practitioner are the almost 90 pages of tables of: (as listed) cases, legislation, statutory instruments, treaties and conventions, European law, and legislation from other jurisdictions. It’s helpful, too, that a text this size is easy to navigate, with numbered paragraphs, a detailed index and table of contents and extensive footnoting. Given the pace of attitudinal and policy changes in this field, this book provides invaluable assistance to the practitioner charged with providing authoritative and carefully considered advice to clients – and therefore a welcome addition to the well-stocked and up-to-date practitioner library.
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COMPANY DIRECTORS Duties, Liabilities and Remedies Third Edition Edited by Simon Mortimore QC Oxford University Press, 2017 ISBN: 978 0 19875 439 8 here are now many books currently available that look at the changing role of the director, and we welcome this new Oxford University Press edition of Company Directors edited by Simon Mortimore QC and his formidable band of contributors. We cannot thank OUP enough for these practitioner works, which help us tremendously and make our lives so much easier when preparing a case.
The title has been rightly described by the publishers as “the established authority on the law relating to directors of companies incorporated under the UK Companies Acts,” because that is what you get in 1,200 pages, seven parts and 36 chapters. Fortunately, the book is not as long as the new consolidated legislation itself!
The authorities include Supreme Court decisions set out below: Prest v Petrodel Resources; Jetivia v Bilta (UK); and FHR European Ventures v Cedar Capital Partners and Eclairs Group v JKX Oil & Gas. Decisions from the Court of Appeal include Smithton Ltd v Naggar and Newcastle International Airport v Eversheds, which are both well covered and explained. Important High Court decisions highlight the following cases: Universal Project Management Services v Fort Gilkicker; Madoff Securities International v Raven; finally, the wrongful trading case, Re Ralls Builders.
The new edition features authoritative new case law and the “all important developments in the law including the Small Business, Enterprise and Employment Act 2015”. This innovative new Act is important because it “improves transparency (including requiring directors to be natural persons unless exceptions apply), simplifies company filing requirements, clarifies the application of general duties to shadow directors, modernises directors’ disqualification and reforms insolvency law to facilitate proceedings where there has been wrongdoing”.
The title also includes non-UK cases, including Weavering Macro Fixed Income Fund Ltd v Peterson from the Cayman Islands’ Court of Appeal and the 2016 decision of the Hong Kong Court of Final Appeal of Chen v Jason.
We found the emphasis in the third edition has been placed on the wealth of new case law relevant to directors’ duties before the English courts, all of which are analysed and explained in a concise way and we include some examples in this review of the new decisions.
This third edition has been properly described as “a complete reference work on the law relating to company directors” and it remains the first port of call for all serious corporate lawyers and academics covering this subject. It is also very useful for undergraduates studying company law.
To balance the developments in recent case law and legislation, the editor has now included an expanded coverage of multiple derivatives claims, directors’ exposure to third-party claims and developed a new chapter on civil remedies for market abuse, which will be of great interest to corporate lawyers.
The third edition attempts to state the law at 1 September 2016 although rules in the Insolvency (England and Wales) Rules 2016 apply from 6 April 2017.
BANK FAILURE Lessons from Lehman Brothers Edited by Dennis Faber and Niels Vermunt Oxford University Press Business and Law Research Centre, 2017 ISBN: 978 0 19875 537 1 ou might say that the downfall of Lehman Brothers in 2008 was meteoric. Plunging from the stratosphere of success recorded in January of that year, it crashed to earth eight months later. It was too big to fail, but it did. The repercussions were far reaching and generated what almost became a worldwide economic catastrophe.
The reasons why, being many and manifold, have resulted in much comment and analysis over the years, including, latterly, this recently published and most impressive legal text from the Oxford University Press. Surely Bank Failure will become the definitive work of reference on this vexed subject. As a pivotal point in legal as well as economic history, the Lehman Brothers disaster makes riveting reading, especially if you happen to be a lawyer. Page after page, this volume reveals the bewildering mixed signals and confusion that preceded the catastrophic failure of this apparently unassailable bank, which ranked fourth behind Goldman Sachs, Blackstone and Morgan Stanley and ahead of J.P. Morgan, Merrill Lynch, Citi, Lazard, Credit Suisse and UBS. In January 2008, its stock reached a high of $65.73 per share. Eight months later, its share price plummeted to $4, a decline of almost 95% One of the key questions that emerges from this analysis is “where were the regulators?” Turns out there were several of them, including the SEC (Securities and Exchange Commission), the Federal Reserve, the FRBNY (Federal Reserve Bank of New York) and a number of others – and in addition to those, the European Union (EU). Interestingly, the major investment banks preferred the SEC regulation to EU regulation.
The crucial point made here is that “no one agency was clearly in charge.” It seems, for example, that the FRBNY, according the authors, “did not take steps to ensure that the SEC had the same information it had about the over-reporting of Lehman’s liquidity pool.” The more simple minded among us who do not speak bank-speak will interpret this to mean that Lehman’s had a lot less money than it said it did. As Lehman Brothers was a truly global institution with global reach and influence, this book is divided into three parts under three headings: the United States, the United Kingdom and Europe. There are references to other regions, particularly those in Asia. Some litigation is still pending, say the authors, who also remark that “the sums at stake and the legal questions that had to be addressed were unprecedented in terms of scope and complexity.” This must be one of the few legal texts around that reads almost like a medieval cautionary tale, albeit a detailed and protracted one, based on thorough and detailed research and also the personal experience and familiarity with the Lehman Brothers matter on the part of the majority of the of the book’s 22 contributors who include main insiders and third-party experts. Also note the Foreword by Lord Justice Briggs, whose 2012 Denning Lecture on the Lehman collapse has been included in Part II. The authors express the hope that the book will be of interest to policymakers practitioners, academics and students – and, one must add, anyone involved in any aspect of financial services.
Reviews by Philip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
The Clapham Omnibus 34
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Clapham Omnibus is the legal magazine for all South London solicitors and barristers