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LONDON CENTRAL

THE CITY OF WESTMINSTER AND HOLBORN LAW SOCIETY

Network Rail

NOVEMBER 2018

Lose Appeal in Japanese Knotweed Case (see page 27) Inside this issue:

■ Property ■ Probate ■ Conveyancing


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Contents 4

Introduction 4 5

President’s Foreword Solicitor Apprenticeships

Westminster & Holborn Events 6

Westminster & Holborn local news

Movers and Shakers 7

New Finance Director joins VWV Yiwen Lydia Gu joins ebl miller rosenfalck

ADVERTISING AND FEATURES EDITOR Anna Woodhams

Law Society Council

DESIGN AND PRODUCTION MANAGER John Barry

International

ACCOUNTS DIRECTOR Joanne Casey

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MEDIA No. 1580

Double up with Twins! Poznan Oratory Competition

Articles 13

PUBLISHED

Change is Overdue

A Quiet Revolution

NOVEMBER 2018 © Benham Publishing Ltd.

Junior Lawyers Division

LEGAL NOTICE © Benham Publishing.

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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 Media. 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.

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Mediation 17

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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 members 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.

Turbo charged negotitaion and mediation - the value of facilitation

Banking 19

DISCLAIMER

Why are banks forgetting trust funds?

Software 21

Our legal case management

Land and Property

Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

COVER INFORMATION Japanese Knotweed courtesy of

Intellectual Property and Commerciality Flexible Working Solicitors’ Qualifying Exam

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22 23 25 26 26 27

Japanese Knotweed Limited.

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Be warned Mind the Gap! Grenville Mansions, King’s Cross Japanese Knotweed - A Knotty Problem Standing out by being smart Network Rail Lose Appeal in Japanese Knotweed Case Interaction is key to getting the most of your CPD

Wills and Probate 31 32 33 34 35

Copy Deadlines

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Mental capacity Wills and lifetime gifts A love that lasts forever How far back can I trace my ancestors?

Foreign assets Estate Administration

Digital Marketing 36

Digital marketing for law firms

Book Review Spring Summer

29th January 2019 19th April 2019

37 38

Members wishing to submit material please contact the Editor, Ivan Ho before copy deadline.

Legal Aid Handbook 2018/19 The Taxation of Private Pension Schemes and their Beneficiaries

Email: IH@hunters-solicitors.co.uk Anyone else wishing to advertise or submit editorial for publication in Central London please contact Anna Woodhams before copy deadline.

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

The City of Westminister & Holborn Law Society is focussing on improving its presence on Social Media Please follow us on Twitter @CWHLawSociety And LinkedIn https://www.linkedin.com/groups/12087037

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Introduction

The

President’s Foreword

November 2018 Y Autumn is our busiest time for events. Very recently, we hosted the Milan Bar Association and held our Celebration of Newly Qualified Solicitors in collaboration with King’s College, London. We are having a short breather before we welcome the Bilbao Bar Association on 7 November.

ou will have the opportunity to meet our colleagues from Bilbao either at the signing of the cooperation agreement or at our Annual Dinner that evening in Bank Westminster restaurant.

By the end of 2018, we will have four cooperation agreements in place; Milan, Bilbao, Berlin and Barcelona. The aim of all these agreements is to establish relationships for mutual understanding of legal issues across jurisdictions, for legal business benefits and, we hope, there is a social aspect which will deepen the cooperation. In our international pages, Sara Chandler discusses this further and all members are welcome to become involved in these activities for business reasons or general interest. It was a great pleasure to welcome the Milan Bar Association to London in October and an honour to sign the cooperation agreement on behalf of Westminster & Holborn Law Society. The Milanese lawyers visited the courts and The Law Society, as well as attending legal sessions at LSE. There will have a fuller report in the next edition of the magazine. The NQ Celebration at Bush House in the Aldwych marked the launch of an annual event. We are currently devising the criteria for a Rising Star award for solicitors qualifying in W & H and will publicise this in 2019. This will be awarded in our 2019 NQ Celebration. We were delighted to work with King’s College, London for this event and to invite both staff and students from KCL. As well as the NQ solicitors the event was attended by a wide-range of lawyers which demonstrated the breadth of career paths. There were solicitors with QC (Hon), solicitors working as sole practitioners, in large practices, in public service, and in-house. It is a critical part of our role as a local law society to provide these opportunities for networking, for all its

members, but this event focuses on junior lawyers and providing a vision of different pathways of how their career might develop.

For our annual dinner, we have joined forces with South London Law Society so that the joint event will provide wider networking opportunities. More and more of us are moving with work opportunities and find it helpful to participate in activities in wider groups. We will ask for feedback from members and may consider other joint events in the future. I very much look forward to seeing members at this elegant restaurant, exclusively booked for us, and hearing from our guest speaker Bob Nightingale MBE, head fundraiser for London Legal Support fund, which does so much active work in raising funds for people who have no funds to instruct lawyers. By the time of the dinner, I will be the immediate Past President as we will consider our officer nominations at our AGM on 30 October. All members are welcome to attend the short meeting which will be followed by drinks and nibbles. This is the one event of the year where booking is not essential. Hannah McCrindle, our JVP, is keeping our website up to date, so we hope people will find this resource increasingly useful. Hannah has completely redesigned the site with the generous assistance of our publishers Benhams and it is straight-forward to book events through the links. Our website also ensures our sponsors get credit for supporting events. My year as President has been brilliantly supported by Laura Uberoi, our energetic honorary secretary. So a huge thank you, to Hannah and Laura, but also to all our hardworking committee members for your help through the year.

Coral Hill President

Many thanks to our sponsors:

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Westminster & Holborn Events

Solicitor Apprenticeships Jason O’Malley, Director of Apprenticeships, at the University of Law explains the benefits of the Solicitor Apprenticeship route to qualification and how, in particular, many non-levy paying firms are unaware of the excellent opportunity available to them. A new way to qualify as a Solicitor

How is this paid for?

Did you know that since 2016 it has been possible to qualify as a solicitor via an apprenticeship route? In addition, whilst levy paying firms are able to utilise their levy funds, non-levy paying firms are able to have 90% of the training costs paid for by the Government. Whilst there have been shorter paralegal level apprenticeships in existence for a number of years, many firms are now helping their staff qualify as solicitors to full qualification.

In 2017 the Government introduced the Apprenticeship Levy. Employers whose payroll exceeds ÂŁ3 million p.a. pay a 0.5% tax on their total UK payroll. In England, these central Government funds are then allocated for the provision of apprenticeship training.

In recent years the Government has encouraged universities to develop degree level apprenticeship programmes. The solicitor apprenticeship is just one of many programmes to have launched or be in development. Apprentices work and study over a 5-6 year period, within an employment contract. Individuals on the solicitor programme do not incur any student debt, but still have the opportunity to undertake an LLB and the SRA’s new Solicitors Qualifying Examination (SQE). On successful completion of the SQE and a qualifying work experience, apprentices will be admitted to the roll, subject to satisfying the SRA’s character and suitability test. Law firms across the country are already taking advantage of this opportunity, using it to attract new talent into the firm or enabling existing staff to upskill themselves and in so doing increase their staff retention rates.

Apprenticeships are funded either fully via the Government for levy paying firms, who are essentially recouping their levy, or on a cofunded basis for firms who are not paying in to the levy, or who have exhausted their levy. Here 90% of cost is paid by the Government and employers contribute just 10% of the cost in monthly payments spread over the course of the programme.

Jason O’Malley Email: Jason.omalley@law.ac.uk Tel: 01483 216112 or Mobile: 07816 282893

Triggering a mediation and complying with Practice Direction made easy!

So how could this work for your firm? • Apprentices can be new recruits or existing staff. There are no age limits so there are currently school leavers, paralegals progressing from a lower level apprenticeship and examples of existing support staff all being given the opportunity to qualify via this route. (Minimum entry criteria are three A levels at grade C and above and 5 GCSEs including Maths and English). • Each apprentice is working toward the SQE assessment and as a prerequisite to this has to develop a work-based portfolio of evidence based on the statement of solicitor competency and the requirements of the SQE.

ADR Notice

• A dedicated solicitor assessor from the University of Law will work with the supervising solicitor to ensure this happens. • The apprentice must, in accordance with the funding rules, be given one day a week to study. The programme at the University of Law has been designed to allow flexibility for each employer to choose when this protected time for off-the-job training is scheduled each week. • Apprentices study via a blended programme supported with live webinars and some face-to-face sessions. For more information on the benefits for your firm, see the guide: https://www.law.ac.uk/apprenticeships/employer/ And to hear what our apprentices think: https://www.law.ac.uk/apprenticeships/students/

Launched by CEDR, ADR Notice is a free tool for lawyers to instigate mediation. ADR Notice not only benefits the case but also helps litigants (and those dealing with dispute referral clauses) comply with Practice Direction (e.g. PreAction Conduct and Protocols Part 8 and 9).

For more information visit XXXDFESDPNBES CENTRAL LONDON 5


Westminster & Holborn Events

EVENTS 2018/2019 Booking is essential for all events due to restrictions of space Tuesday 30 October 6pm

AGM All members welcome

Wednesday 7 November

Annual Dinner: Bank Westminster, 45 Buckingham Gate, SW1E This black-tie evening will take place in this stunning restaurant in Westminster. Bob Nightingale MBE, Head fundraiser for the London Legal Support Trust, is our speaker. Tickets can be booked here https://bit.ly/2OsfeiC This event is kindly supported by Legal Network London, Lloyds Bank and Conveyancing Data Services

Precise dates for 2019 TBC January 2019

Presidents’ New Year welcome drinks – Dawson Cornwell February 2019

• JUSTICE/other charity drinks at Farrer & Co • Property seminar, Index Properties March 2019

• Brexit discussion event • Billing/modern ways of working April 2019

• JLD informal drinks • Law Society panel event with some national TLS staff (i.e. an update from the policy and international team) and a panel of our council members) TBC.

• Property seminar – Index Properties June and July 2019

TBC September 2019 • Visit from Barcelona Bar Association October 2019 • Celebration of Newly Qualified Solicitors • AGM last week of October/first week of November Additional events are under discussion. If you have suggestions or would like to host an event, please contact the committee at cwhlawsoc@gmail.com The website calendar also shows our events www.cwhls.org.uk

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Beth Forrester

Westminster Council Member Beth Forrester was elected as council member for Westminster in July 2018.

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eth works in-house as a solicitor for Ofsted, with an office in Westminster. She advises on public and regulatory law, with a particular focus on the independent school and further education sectors. Beth previously worked as the sole litigation solicitor for Ofsted, with a specialism in defending judicial review challenges. She also has experience working for a local authority in public and children law. Prior to this, Beth trained in private practice in Brighton. As well as a council member, Beth is also a trustee of the Law Society Charity and has previously served as a council member for the Junior Lawyers Division. As a council member Beth is aware of the ongoing governance review and seeks to ensure that any changes improve the membership experience and representation by the society. To this end, Beth is interested in increasing engagement between the membership and the society, to understand the membership’s needs and ensure that the society provides services and facilities that are valued by members. As the representative body for the profession Beth is keen that the society upholds the highest standards and promotes to the public, other professionals, government and business, the value of the profession. Beth works full time, splitting her time between the office and remote working from home and can be contacted on twitter @BethJForrester


Movers and Shakers

New Finance Director Joins VWV P

atrick has a law degree from the University of Bristol and qualified as an Accountant in 2001. He has 13 years' experience with legal service providers, having previously worked as a Chief Financial Officer at the Kings Court Trust, and Finance Director at DAC Beachcroft. Prior to this, he worked for BBC News and EY (previously Ernst & Young). Patrick commented on his appointment:

Patrick Firebrace has been appointed as the new Director of Finance at award-winning law firm VWV. He joins from London law firm Rosenblatt, which he helped become the fourth UK law firm to go public, by achieving its Alternative Investment Market listing in May 2018.

“The legal services sector faces many challenges in terms of commercial pressure from clients, commoditisation of legal work and technological advances in AI. This means that the traditional approach to service delivery needs to be challenged to ensure that client service levels remain high, whilst profit margins are retained. VWV is one those firms that are willing to embrace that challenge and has an opportunity to enhance its growth, maintaining and innovating service excellence, staff satisfaction and financial rigour.” VWV's Managing Partner, Simon Heald, commented: “We were impressed with Patrick's experience and very much look forward to working with him. I am confident that he will help us deliver a robust finance strategy through a focus on productivity and commercial acumen, and help us achieve further growth.” When he's not busy with his three boys, Patrick runs marathons, and enjoys surfing in Cornwall. L-R Patrick Firebrace and Simon Heald

Yiwen Lydia Gu joins ebl miller rosenfalck Lydia is a trainee solicitor at ebl miller rosenfalck (London) and a member of the firm’s expanding China desk. She is currently assisting the partners in our employment and immigration team.

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Lydia Gu

hroughout her legal career Lydia has worked closely with large Chinese companies who are expanding to the UK and Europe, and also high net worth individuals who are investing in the UK. She will continue to work closely with those Chinese businesses and individuals as ebl miller rosenfalck continues to provide legal services to Chinese businesses and to expand its presence in the Chinese business community. Lydia has extensive Immigration practical experience in assisting clients with point-based-system entry clearances; extension and settlement applications; Tier 1 (Investor) and Tier 1 (Entrepreneur) applications; handling Tier 2 (G/ICT) sponsor licence application and advising on certificates of sponsorship; nationality and citizenship (e.g. naturalisation & registration); experience in handling EEA applications (EEA(PR),EEA(FM), EEA(QP) applications. Prior to joining ebl miller rosenfalck, Lydia worked as an immigration consultant and business development executive at Gordon Dadds – a UK law firm which is listed on the Alternative Investment Market (AIM). Lydia has an undergraduate degree in Mathematics with Management Studies from University College London (UCL) and a Graduate Diploma in Law; Masters of Law and Legal Practice Course in International law and Legal Studies from the College of Law.

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Law Society Council

Change is Overdue

The Law Society Council It is almost 44 years since I began practicing as a solicitor and, for the latter half of that time, I have been honoured to represent our local law society’s members working in Holborn on the Law Society’s governing council. In that time and in particular during the latter period a lot has changed in our profession. In 1975 we were less than 40,000, mostly men, mostly white and almost all in private practice working in what were, by today’s standards, relatively small businesses. We were spread pretty evenly across the age groups.

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he Law Society Council was also different. We self-regulated for making the geographical representational basis of council more representative of and relevant to today’s profession is overwhelming. and so regulatory issues were the focus of much of the business. There were few challenging legal practice issues, How can the Council be Representative Today? perhaps the most common dealing with the consequences of the But to focus on just on locations misses the central point about how cycles in the property and insurance markets. Members of Council must be changed so as to more effectively represent today’s Council were often senior practitioners and sometime senior profession. The role and purpose of council has changed. It is no partners in the then leading firms in London and some other longer has a regulatory focus and what residual function it has will urban centres. The balance was mostly senior partners or similar surely soon be gone. It no longer needs to meet the daily concerns from that vast part of the profession that then worked in 2-4 of solicitors business. Most of us now work in large law business partner High street and similar firms. The electoral basis for which do not look to The Law Society for such assistance. Many council was almost entirely geographic and reflected boundaries others work in-house in commercial entities, most of which are not rooted in the collegiate of historical inter-firm liaison. solicitors’ firms. Only a third now work in smaller practices and only a Geographical Seats on Council small percentage as sole proprietors. So the main role of Council now is to represent us as individual solicitors, although that includes Those geographical foundations remains the basis of Council today. the wider remit of securing a just and effective legal system, access Although some 20 years ago a number of practice area seats were to it and promoting the solicitors brand nationally and globally. introduced and more recently specific legal communities were given allocations, two thirds of council still hail from those historical liaisons. Further under new governance structures adopted a year ago and So we have a seats for the Welsh Marches, for Outer Sussex, and for now largely bedded in, Council has its principle activities designated Central and South Middlesex. But we have another for North as being the determiner of the professions policy and strategy and of Middlesex, yet only one for the whole of South London. And within providing its thought leadership. Much of the implementation and those boundaries lurk even more oddity. Holborn is a most vivid oversight of operational functions, once the focus of many council example its many quirks such as including “EC 2A (part)” and “a line members, is now vested in the new Board and its committees. drawn down the centre of Grays Inn Road and then left at Guildford But what part of the profession is to be represented in respect of Street” which casts solicitors working in firms on the line’s opposite strategy, policy and thought leadership? We are no longer the side into the constituency of North East London. profession of 1975 or even of 20 years ago when Council was last And the sizes of the electorate vary enormously. The once no doubt reformed. sparsely solicitor populated North East London today has over 8,000 Demographics of the Profession constituents, making it by far the largest, as it includes the swathes of For the last 10 years we have reasonably reliable data about the south Islington that lie in the ECs. At the extreme Cumbria and nature of our current profession and over the last three years in Lancaster just scrapes into the 800s no doubt aided by that fact that particular a very firm picture has emerged of who we now are and the north Lancashire itself is part of another constituency, one of five that direction we are moving. embrace bits of old Lancashire. The mass of geographical seats First we are bigger but still growing. There are now some 140,000 certainly do not represent the practicing locations of today’s practicing solicitors. Perhaps more importantly 43% of us have been profession which is particularly concentrated in London where almost qualified less than 10 years and many fewer of us are proprietors of 50% of us work but are represented by only 25% of seats. The case 8 CENTRAL LONDON


Law Society Council

businesses. Also significant is that over 20% of solicitors now work as In House Counsel in commercial businesses. 15% of us identify as being from ethnic minorities and of course we all know that 50% of solicitors and steadily growing, are women. Less well known but not surprising is that 60% of us practice business law in some form. 60% of us practice in London and the South East with over 20% working in the City.

How can Council Catch-Up?

the numbers in practice and community seats, in particular from younger lawyers, from in-house, from women and from business lawyers. Securing fair representation from those groups may be hard to achieve but we must find a way. Ethnic minority solicitors are proportionately represented. We all can be and certainly much more so than we now are. The Council Membership Committee is charged with looking into this issue and will make recommendations to Council to reform itself and soon. It is working with a small group of Council Members including the Vice President and it is consulting widely. But reform has been recommended in the past and has failed to secure Council’s support leading a previous chair of CMC to write in the Gazette decrying the spectre of self-interest. Let us hope that the interest of the new and future profession will this time prevail.

Has the make of Council changed to reflect this? In the Council most recently and elected and taking office in July only 32% are women and only 6% are in-house and most of those work in the public services not commerce. Less than 10 % are qualified more than 12 years but 30% have been qualified for more than 35 years. Just 10% are business lawyers and only 6 % work in the City. Sadly interest in being a solicitor’s representative on Council is also in steady decline. Of geographical seats that have come up for election over the last 5 years (and as the term is four years that Fraser Whitehead means all of them), over 80% have been non-contested. The Council Member for Holborn and Chair of CMC democratic deficit is extraordinary. In contrast, elections in the but writes in a personal capacity. minority Community seats including practice seats are mostly contested and sometimes fiercely. A recent result in one was even challenged. Yet 21% of Council members have been on Council for more than 12 years and quite a few of those including myself far longer than that. Allowing that situation cannot help with eradicating the deficit. Experience is one thing but it cannot be said with any credibility that such persons have an inkling of the issues facing the growing number of new entrants let alone are able to speak for them, except from the perspective of proprietorship, a fading future for many.

The Way Forward The position is clear. We need to look closely at both reenergising and rationalising the geographical seats on Council and increasing

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International

The international legal community celebrate in Barcelona, with CWHLS President Coral Hill and FBE President Sara Chandler in front row centre. February 2018.

Double up with Twins! Central London is not starting a parenting column. However, Westminster & Holborn Law Society is expanding its international programme with twinning agreements with two new cities in the Autumn.

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istorically, CWHLS has been twinned with Berlin and Barcelona. Some members may remember the signing of the agreements in 2000 with Berlin and in 2007 with Barcelona. The Dean of the Barcelona Bar and members joined CWHLS in the Middle Temple for an exceptional annual dinner. What has happened since, and has it made a difference for members?

BARCELONA Twinning is an excellent opportunity for networking, both legal and social. For example, every two years Barcelona holds a trade fair for lawyers from the 40 or more cities with which the Barcelona Bar is twinned. Participants have the opportunity to meet and discuss mutual benefits. Knowing who can help when you have a case in a foreign jurisdiction is valuable. CWHLS members attend these trade fairs and they are not only a useful source of contacts and information, but also a pleasure. Last February the Barcelona Bar ended their week of activities with an international brunch with lawyers from the US and Europe. It was a fascinating event and we learnt a lot. Every February the Barcelona Bar (Ilustre Colegio de Abogacia de Barcelona ICAB) organises a week long festival culminating in an awards ceremony and gala dinner. It is known as the Festivities of San Raimon de Penyafort. On the final day the FBE (Federation of European Bars) holds an international seminar in partnership with the Barcelona Bar. This year it was an excellent seminar on trade secrets: regulation and enforcement.

MILAN At the time of writing we are looking forward to 19th October when the Milan Bar (Ordine degli Avvocati di Milano) will sign a twinning agreement with Westminster & Holborn Law Society in the Law Society, Chancery Lane, in a morning seminar. The Milan Bar have a special asset, the Corale Polifonico Nazariana, which is a choir of 50 singers with a small orchestra. The choir was formed 30 years ago by Judge Lucio Nardi, and is made up of lawyers and judges who dedicated to choral music. CWHLS is privileged to be chosen to host their 30th Anniversary in London. There will be an anniversary concert in the Temple Church and

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the choir will sing Puccini’s Messa di Gloria. To learn more about the coir, there is information on the choir’s website and some of their music (go to http://www.polifonicanazariana.it/). There are YouTube recordings of their performances if you google the choir.

BILBAO In November on the 7th, during the day of the Annual Dinner, a twinning agreement will be signed with the Bilbao Bar (Ilustre Colegio De Abogados Del Señorio De Vizcaya). Bilbao is a significant legal centre and well worth having contacts in the legal community there. If you are interested, please contact cwhlawsoc@gmail.com and you will be welcome to get involved with the twinning with Bilbao. Apart from the contacts and networking which benefit our members and their clients, there is also the social side to twinning. Once you get involved you can really enjoy the activities of the host bars, who often organise events in palaces, castles, museums and places where we could never go without our local hosts. In Bilbao we have had highly enjoyable boat trips in the sunshine to the coast, and visits to the Guggenheim Museum, and some of the exquisite cuisine for which Bilbao is noted. In Milan much of the activity is inside the court, which is an art gallery in its own right, and any visit to Milan should include a visit to the roof of the Duomo. Our hosts always include a visit to a current exhibition in an art gallery or a museum as part of their hospitality. In Barcelona, we spend time in the bar association building off the Ramblas, and are treated to excellent friendship and hospitality. Visiting Berlin is always a pleasure, and the friendship and warm hospitality given by the Berlin lawyers adds to the welcome we receive. All members are very welcome to become involved in these activities even if not involved in the international committee. All members and officers bear their own costs of any trips but there are occasional sponsorship opportunities for junior lawyers.

Professor Sara Chandler QC (Hon)


International

Poznan Oratory Competition Having finished a stressful and demanding May exam period at King’s College London, it would be fair to say that I had not put much thought into what I would do in June.

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hen to my surprise I was selected I was absolutely delighted. Human rights has long been an area of great interest to me, however I have never had the opportunity to study it at university. Competitors were tasked with writing a speech on one of the articles of the Declaration of Human Rights. This was a rather broad scope, allowing me to explore the Declaration in depth before selecting the article that I would discuss. In the end I selected Article 4 on the prevention of slavery. I find legal debates about what exactly constitutes slavery fascinating and my speech focused around the duty of lawyers to redefine exactly what slavery means in the modern world. My argument was that we need to move away from our association of slavery with the chains and plantations of the Atlantic slave trade and have a serious discussion about whether some of the economic relationships created by capitalism in developing countries are producing a new generation of modern ‘slaves to capital’. The speeches by other competitors were extremely impressive. In particular I enjoyed hearing the perspective of a competitor from Vojvodina arguing that the right to asylum was being redefined by those fleeing poverty rather than war as part of the refugee crisis. After a fascinating couple of hours, four were chosen to advance to the next round. I was honoured that I was chosen as one of those four. After the first round we were treated to a fabulous buffet lunch of Polish food and had the rest of the afternoon off to enjoy the city. In the evening we reconvened for dinner at a restaurant, where we were able to compare our experiences as law students across Europe. The final round took place the following morning, with the remaining competitors having an hour prepare a speech on a topic proposed by the organisers. The final topic was whether or not the Declaration of Human Rights remained relevant in the modern world. I was tasked with arguing in favour and chose to focus on the number of modern legal human rights frameworks have drawn inspiration from the Declaration. After an enjoyable and stimulating debate, I was

delighted to be chosen as the winner. My prize was a place at the FBE Congress in Warsaw in September. After the competition had concluded, we had some time to rest before meeting up in the evening again to watch the World Cup together. My experience in Poznan was fantastic, both from an academic and from a social perspective. As well as getting the opportunity to research an area of law that fascinates me, I met many young lawyers from across Europe who told me stories of their experiences in the law that contrasted greatly to mine. Particularly poignant were the stories of our hosts in Poznan of the way in which the governmental crackdown on judicial independence is fundamentally threatening the future of impartial legal practice in Poland. I must extend a huge thanks to our hosts at the Poznan Bar Association for their outstanding hospitality. The events that they organised for us went well beyond my expectations and the warmth with which we were all received made the competition all the more enjoyable. I attended the FBE Congress in Warsaw in September, where I was able to see many of those who I had met in Poznan again. What struck me most about both trips was the value of having lawyers from different countries coming together to compare experiences. Studying law in London often feels like living in a legal bubble, so being able to hear the views of outsiders to the English legal system provided a valuable route of introspection into my own experiences, as well as educating me on how different practicing law is in part across the continent. Most of all though, I am extremely grateful to the City of Westminster and Holborn Law Society for allowing me to have this opportunity. Amidst the general flow of university life, it is unusual experiences like this that will stand out for many years to come.

Chris Banks LLB student King’s College, London CENTRAL LONDON 11


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Articles

A Quiet Revolution There seems to be a quiet revolution taking place in the real estate sector. For many years, hotel operators have leveraged off their reputation and have monetised their branding. In the hotel sector, to be a successful hotelier you need to be first class at running hotels but you do not necessarily have to own or even have a long lease of the underlying hotel real estate asset. A welldrawn management agreement will usually provide adequate security and the mutual financial benefit sought by the owner of the property and the operator.

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administrative burden of actually owning the real estate from which these operations are run. By adopting this approach, service operators are able to significantly expand their operations. By utilising appropriately drawn management and operational agreements, asset owners can secure a healthy return from their real estate holdings if they are willing to explore new arrangements and are free of the constraint of having to satisfy a traditional real estate bank lender. Other areas of real estate investment that are open to this form of structure include PRS, student accommodation, elderly care and retirement living. In each case, these are all sectors where operational expertise is more important than actually owning the The real estate industry is ideally placed to underlying property. Clearly pursuing this line of operational take advantage of these innovative and investment involves a completely different successful business models. mind-set from the financing point of view Intermediaries that have a proven track and will involve bankers and lenders being record in service delivery are embracing far more corporate and taking a far more this new thinking. Traditionally, the business-like approach to real estate property investment industry has been lending. It also requires the legal advisers driven and constrained by the need to satisfy the demands of real estate lenders to be more commercial in their approach and outlook than perhaps traditionally has who have only been prepared to lend if: been the case with real estate lawyers. a. there is a long lease;

n this modern technology driven world, this separation of “operation” from “ownership” is a tried and tested business model. No longer small start-ups, Uber and Airbnb have become household names with valuations of $68.5bn and $30bn, respectively, — valuations which are higher than many of their traditional counterparts. These “disrupters” have demonstrated that an innovative business model can make a significant impact on an established market. Airbnb is now one of the largest global accommodation businesses but it owns no hotels or apartments. Uber is one of the largest global taxi businesses but it owns no taxis or cars. Alibaba is the biggest online retailer but with no stock.

b. let to a good tenant offering a strong covenant; and c. on terms that provide a “clear” income for the owner. With the opening up of the real estate lending market to new entrants, new thinking is emerging. In the serviced office market, operators view with envy the hotel operating structure and evidence suggests that these providers are now exploring structuring their operations in the same way. Exploiting their core skillset in providing services, these serviced office operators are now pure operators and avoiding the heavy capital cost and

We can only hope that in the future all those involved in real estate from funding to conveyancing will have the vision to adapt to this new environment. That, in particular, real estate lenders will in future find the means to make funds available for development and construction, notwithstanding that the end product is to be occupied on an operational basis rather than on the terms of a traditional long lease.

Joanne McIvor Partner, Edwin Coe

joanne.mcivor@edwincoe.com CENTRAL LONDON 13


JLD (Junior Lawyers Division)

Intellectual Property and Commerciality T

Every company cares about their intellectual property. Having your work copyrighted maintains a level of protection and allows you to enforce that copyright in the event of an infringement. Whilst enforcement of IP is always important, there can be extenuating commercial considerations which could lead to lucrative rewards.

14 CENTRAL LONDON

oday’s focus will be on the popular video game industry. IP is particularly important for this industry given how every product that a video game company releases will be smothered in copyrights. These copyrights will make up game file assets, voices, animations, and other individual elements. The reason so many different copyrights are created stems from the inability to ‘own’ the unique character or landscape the company has created in the video game. I have decided to focus on one particular company, Blizzard Entertainment. This company has suffered from extensive copyright infringements. Whilst they have handled these infringements in a typical way focusing on enforcement of their IP, they have also taken into account wider commercial considerations. These considerations focus on the customer, and by capitalising on an untapped market, Blizzard Entertainment will very likely see lucrative rewards. Blizzard Entertainment was born on the 8 February 1991. Since then they have grown into one of the most influential game developers and publishers of our generation. The year of 2004 saw the release of fourth-best-selling PC game ‘World of Warcraft’. With roughly 12 million subscribers at its peak, the fan base of Blizzard Entertainment was astronomical. As time progressed, World of Warcraft gradually changed. For better or for worse. As subscriber numbers dwindled to roughly 5 million, there was always a fan-base who preferred the good ole’ days. Whilst this fan base was expressive of their desire for a pristine version of the game which would replicate the 2004 release, this desire would be met with silence. This led to the eventual release of a ‘private server’ (The name has intentionally not been added) which replicated the 2004 retail release. The server was released on February 28th 2015, using assets, animations, and voices, all of which were copyrighted by Blizzard Entertainment. During this time, the private server grew to host 800,000 accounts, with 2 million visits on their website each month. On 10th April 2016, Blizzard Entertainment sought to enforce their copyright by preparing to stand trial against the company hosting the private server. Naturally, this is what any company would do. However, Blizzard Entertainment saw the bigger picture. There was an untapped market. After receiving a

community petition signed by 240,000 people as well as Mark Kern, former Team Lead for World of Warcraft, Blizzard fans saw an announcement. On 3rd November 2017, Blizzard Entertainment decided to announce World of Warcraft Classic. A return to the 2004 retail version of the game. This isn’t the first time a company has marketed a product based on nostalgia. Jagex Limited, another video game company set the precedent for this type of marketing in the industry. After continuous updates to their video game ‘RuneScape’, Jagex decided to release ‘Old School RuneScape’ on 22nd February 2013. This would be an original copy of RuneScape as it was on August 2007. Jagex also recognised that there was an untapped market, given the rise of other private servers based on their IP and the outcry of 450,000 customers who voted for the return of Old School Runescape. After being inspired by Max Rofagha, founder of the Finimize app, I feel it is only appropriate to conclude this article with the simple question of ‘what can we learn and why should I care?’ This lesson isn’t only applicable to the video game industry, certainly, law firms could also take on this information as they strive to deliver a cost-effective product. Not every change will be good for your product. Naturally, as time progresses, things will change in order to remain competitive within the market. But when you make those changes, it is always worth understanding what it is that makes your product stand out. What made your clients approach you in the first place? Being receptive to your client base will be far more valuable in the long run. If you don’t understand what it is that your customers like about your product, the emphasis should then be placed on gathering data to help understand what is liked and disliked. Not everyone can capitalise on this specific type of nostalgia. Whilst both these examples prove that a dwindling client base can be rescued, the more important lesson to take into account here is that no company should be put into this position in the first place. The aim, therefore, should be to implement a strategy which maintains the identity of your product whilst examining new ideas to remain competitive within the market.

Sundev Panesar Paralegal


JLD (Junior Lawyers Division)

Flexible Working – Urban Legend or 21st Century Necessity With coffee shops full of laptops and Unions calling for a four-day working week, that once distant dream of working anytime from anywhere is slowly becoming a reality. In an era of artificial intelligence and LawTech changing the way in which law firms operate, it’s no wonder that traditional working patterns are shifting. However, whilst the advantages for employees are clear, do flexible working arrangements actually work in practice and why should businesses — including law firms — embrace this 21st Century trend?

LATE TO THE GAME

FACE TIME

Any UK employee with at least 26 weeks’ continuous service has a statutory right to request flexible working. The UK Government defines flexible working as “a way of working that suits an employee’s needs”, a definition that encompasses a wide spectrum of flexible working arrangements. From job sharing and compressed hours to working from home, there is an emerging working pattern to support whichever lifestyle you wish to lead. The right to flexible working is not, however, an absolute right and employers may reject certain requests if they can point to a legitimate business reason for doing so. There are a limited number of set refusal grounds upon which employers may rely and all requests must be handled in a fair and reasonable manner.

Despite the potential financial gains for both parties, such as the decreased office overheads and reduced commuting costs, there are also certain drawbacks to not being physically present in the office. For employers, this ranges from not having employees in the office to undertake physical admin tasks to complete breakdowns in communication due to the lack of face-to-face contact. Managers may also feel a loss of control over the work being carried out and an employer’s perception of flexible working arrangements may be forever tarnished by rogue individuals abusing the system to the disservice of their colleagues.

Conversely, the most cited disadvantage by employees is the perceived impact of the lack of office Although historically the uptake for flexible working was “face time” on career progression. Unfortunately, there predominantly by those with childcare responsibilities, is a common perception that flexible workers are less it is now something that many employees, and ambitious than their peers and that they will be especially younger generations, are coming to expect. overlooked for new work opportunities and promotions Indeed, almost two-thirds of UK workers would like to as they are no longer front of mind when not physically reduce their working hours in the future and major sitting there. The transformative power of legal businesses such as Amazon, Google, Deloitte and technology may in turn be of some assistance here Norton Rose have already started trialling shorter and could help reinvent the traditional notion of “face working weeks in response. Yet despite this growing time”. Whether it’s simply making better utilisation of preference for non-remunerative perks, statistics show video conferencing programmes or introducing tools that 1.4 million of workers in the UK in fact work a full to monitor when employees are logged in online, seven day week and clock up on average seven hours technology can be harnessed to alleviate the problems more per week than a typical worker in the of physical absence. Businesses must however remain Netherlands . The UK is therefore somewhat “late to somewhat flexible when regulating flexible working and the game” in respect of flexible working and it could be should implement adequate safeguards to ensure that argued that technology is actually hindering our employees are not overcompensating too much to the progression by facilitating an “always online” culture. detriment of their health and mental wellbeing.

HIDDEN BENEFITS FOR EMPLOYERS

BE FLEXIBLE WITH FLEXIBILITY

Heightened productivity, a reduction in absenteeism and a more diverse workforce are just some of the “hidden benefits” of flexible working. Other more specific advantages include enabling employers to conduct international cross-jurisdictional deals outside normal office times as a result of staggered working hours and creating new opportunities through job sharing schemes. Progressive ideas and flexible working policies, moreover, not only help companies to attract and retain the best talent, but can also lead to increased commitment and loyalty from employees looking to repay their employer for accommodating their flexible working needs. Yet with all that being said, do the apparent benefits really outweigh the negatives and is the idea of flexible working more appealing than the reality?

The future of flexible working lies in the employer’s hands. Change must be implemented from the top and managers should be encouraged to work flexibly themselves to truly understand the nuances of what flexible working involves. There is no “one size fits all” approach to flexible working, but a degree of consistency is nonetheless essential in order to avoid any unwelcome Employment Tribunal claims. All in all, both parties can benefit from flexible working arrangements as long as boundaries and expectations are set from an early stage and those firms who embrace the evolution of technology will ultimately reap the awards of a happy, effective and productive workforce.

Leah Capriani Paralegal

CENTRAL LONDON 15


JLD (Junior Lawyers Division)

Solicitors’ Qualifying Exam In 2017 the SRA announced its decision to reform solicitor qualification in England and Wales by introducing the Solicitors Qualification Exam. This article assesses the impact of the proposed changes to practitioners and those planning to enter the profession. When are the changes due to come into effect? The new regime won’t be introduced until September 2020 at the earliest. It won’t be a “big bang” change either – the current system will run alongside the new for a few years. The SRA are proposing that anyone who starts their legal education (LLB, GDL, LPC) before the SQE is introduced will be allowed to follow their choice of the new or current process, as long as those using the current process complete it by 2031.

What does this change mean? Under the new process, any student wishing to become a solicitor will have to sit and pass the Solicitors Qualifying Examination (the ‘SQE’) Stages 1 and 2. An undergraduate law degree will still be very important in helping students prepare for this but will not give students any exemptions from sitting these exams (except for some lawyers who are already qualified in other jurisdictions). All students will also need to complete two years’ qualifying work experience and meet the necessary character and suitability requirements before they can apply to the SRA to be admitted as a solicitor.

How does the SQE differ from the Graduate Diploma in Law or the Legal Practice Course for example? The GDL, LPC etc. are all courses of study recognised and/or required by the SRA. The competencies are prescribed by the SRA, but the details of the courses and assessments are set by the course provider.

The new process 1. Undergraduate degree or equivalent All applicants to become a solicitor must either have an undergraduate degree, or experience equivalent to study at degree level. 2. SQE Stage 1 and Stage 2 All applicants will have to sit and pass SQE Stages 1 and 2, whatever degree or other qualifications they have already. Students must complete SQE Stage 1 before progressing to SQE Stage 2. All the SQE Stage 1 exams will have to be taken in the same assessment window – and so cannot be spread out over several months or years. For SQE Stage 2 candidates may have a choice of sitting all ten assessments at the same time, or in two groups of five. 3. Qualifying work experience Students need to complete a minimum of two years’ qualifying work experience (‘QWE’), which can be with up to four different legal employers (and could include appropriate pro bono experience). Students can do this during, before or after completing their SQE assessments. The SRA requirement for trainees to gain experience in at least three areas of law, one being contentious, will no l onger apply. 4. Apply to the SRA for qualification The SRA will complete quality and suitability checks only at this stage of the process to determine whether students are eligible to become a solicitor. (Under the current process these checks are done before starting the training contract).

The SQE will be a set of exams set by the SRA and all students will sit the same SQE exams no matter what preparatory course or So, what are the immediate actions? courses they have studied. When the SQE will be introduced, and what it will involve, are still uncertain. But if you sponsor or hire LPC graduates, you’ll need to So, what will the SQE cover? think about the implications of the changes on your business. Based on proposals from the SRA, it’s expected that SQE 1 will involve six multiple choice exams to test legal knowledge and If you’d be interested in finding out more about the SQE practice, and one online skills assessment. SQE 2 will consist of please contact Ben.Campbell@law.ac.uk. ten skills assessments that will test skills such as interviewing and legal drafting.

Ben Campbell

Account Manager at The University of Law

16 CENTRAL LONDON


Mediation

Turbo charged negotiation and mediation the value of facilitation I thought I’d heard everything. But in the middle of an industrial facilitation, progress ground to a halt because the management team refused to continue until the union had agreed to stop pointing wooden AK47s at supervisors on the shop floor.

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his was 1989 South Africa and I was one of five facilitators in a Relationship by Objectives (RBO) process between Mercedes Benz and the National Union of Metal Workers (NUMSA). What happened next showed to me the importance of having external, turbocharged facilitators. I still reflect on this experience nearly 30 years later.

The background The RBO process is a product of the Federal Mediation and Conciliation Service in the United States. We have probably used it more in South Africa than it has been used anywhere else. It is a facilitated process suitable for fractured union-management relationships. The Mercedes Benz/NUMSA relationship was like many other union management relationships around the world, split by mistrust and a host of other typical stressors following industrial action. The way that the RBO works is that skilled facilitators guide the parties through a process over hours or a few days, in which they review the current relationship and then set objectives and agree action plans to restore it. In particular, the parties are asked to consider two questions: What must the other party do to develop and maintain a constructive relationship with us? What can I do to develop and maintain a constructive relationship with the other party? Inevitably, the list in answer to the first question is longer than the second. It is much easier to blame than it is to consider what contribution we each make to damaged relationships, let alone what we are prepared to actually do to remedy things. I have often used these same questions when mediating workplace disputes, where blame is a common theme. Processes such as the RBO and other relationship building initiatives are, in my experience, best facilitated by experienced mediators. Mediators are trained to work impartially and to manage processes in a strategic manner. They are able to get the best results in difficult situations. The facilitators in the Mercedes Benz/NUMSA RBO were all experienced mediators, nevertheless when management’s condition regarding the wooden weapons was put to the plenary of 80 people, they were divided about how to deal with the situation. They called a break to the facilitation to caucus amongst themselves. Should they deal with this boulder in the road now or should they try to persuade management to put the issue into process along with the many other issues under discussion? Sequencing issues, such as this, are a typical challenge in negotiation and other consensus-building processes. The facilitators in the RBO finally decided to propose to the parties that a small joint union-management task team be established to work on the weapons issue while the plenary continued working on other issues. This was accepted by the parties and it worked. The outcome agreed in the small joint union-management task team was that all weapons including wooden and real ones carried by white workers were to be left at security. The facilitation continued and the RBO was a success.

The power of 'TurboCharge' - mediators, negotiators and facilitators This is where my ‘turbocharged’ reference comes in. It is a term coined by Tom Colossi of the American Arbitration Association back in about 1990. He said mediation is like a turbocharged negotiation, in that the mediator is the turbo charge to a stalled negotiation. Mediators are expected to add value to a negotiation by injecting energy and optimism into a flagging process. They may act as negotiation coaches to parties who are less skilled at negotiation or stuck in outmoded adversarial approaches. By engaging with the parties about the issues between them, they also challenge the parties to think differently about the possible outcomes of the process. Facilitators do the same although they are also used at earlier stages of conflict or post-dispute when parties are not under pressure to reach a settlement on a specific claim or dispute. Facilitators might also be drawn in to assist individuals and groups to have difficult conversations, or even to facilitate a complex negotiation. In a recent case in South Africa, six defendant companies to a very complex negotiation made use of a facilitator. The negotiation involved a multi-billion pound, occupational lung disease class action claim, by hundreds of thousands of workers in the gold mining industry. The companies first used the facilitator to assist them to find common ground among themselves and then to facilitate negotiation with the claimants’ lawyers on a settlement. This successful facilitation lasted for over four years. Skilled facilitators have a process tool box at their fingertips. This includes: • Working with parties in joint meetings • Using private meetings • Bringing principals together for focused trouble shooting discussions • Using mixed task teams and subgroups • Drawing in agreed experts • Staging the process over time so work can be done in between sessions for reporting back at the joint meetings. They also bring to bear in the facilitation the mediator tool box of excellent communication skills and the capacity to build and stay in rapport with parties at all stages of the process. Perhaps the BREXIT negotiation would have benefited from facilitation by expert third parties from its earliest stages. Skilled independent facilitators, whether working separately with one party or appointed jointly to facilitate the process as a whole, are well placed to turbocharge a potentially difficult negotiation or conversation - such as this one has proved to be. Whatever the situation, you would be wise to consider using a facilitator to turbocharge it. Here is some useful information if you are interested in becoming a Mediator or an Advanced Negotiator. If you are interested in becoming a mediator or advanced negotiator, contact CEDR Skills at training@cedr.com or call 0207 536 6070 to speak to a member of the team. By Felicity Steadman CEDR Trainer and Mediator.

CENTRAL LONDON 17


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Banking

Why are banks forgetting trust funds? At a time when banks are shying away from offering deposit accounts for trust funds, Hampden & Co. knows the crucial role they play, Banking Director Stephen Buckland explains

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have been thinking about trusts recently as I am frequently being asked to provide deposit facilities for them, as clients are finding this increasingly frustrating to achieve elsewhere. While HMRC figures show that fewer clients are using trusts (158,500 trusts and estates making self-assessment returns for the tax year 201516, which is 61,500 fewer than 2004-05) they are still crucially important for many. I spoke with a professional contact of mine, Wendy Hall, a solicitor in the Private Client Department at Edwin Coe LLP about this, and she states “The majority of our high net worth clients use trusts as a way of passing wealth down the generations, whilst also retaining control and reducing the value of their (and their heirs) estates subject to inheritance tax.” Remembering the advantages While trusts are often thought of as ‘high tax’ (and increasingly, compliance-heavy), they still play a valuable role for many high net worth clients.

Wendy noted that “By choosing appropriate investments and using as many of the available exemptions, allowances and tax-free (or lower rate) bands as possible, the overall tax position for trusts can in fact be very low.” I asked Wendy why she believed fewer banks were offering deposit opportunities for trusts. She said that, in her experience, many are simply not equipped to offer advice on setting up trusts, and this makes them wary of operating accounts for this purpose. “Whilst some are comfortable with the notion of a bare trust or nominee account (most commonly used by parents opening accounts on behalf of children), they are less well-acquainted with discretionary or life interest trusts, and the accompanying tax and legal considerations.” At Hampden & Co. we understand trust funds. At this moment we’re managing a Personal Injury Trust for a client with very specific borrowing requirements to make home improvements that will have a significant impact

on their lifestyle. While many banks are backing away from them entirely, we’re doing the exact opposite. We’ve made it a particular strength of ours. Trust funds might only be required in exceptional circumstances, but we take pride in our ability to make delivering exceptional services routine for our clients.

By Stephen Buckland Banking Director Hampden & Co.

HERE COMES SUMMER One of the four ancient Inns of Court within the City of London, the Inner Temple’s vogue as a private hire space is a rather more modern phenomenon. While the Inner Temple organisation and site were founded in the 14th century, the stunning Georgian-style main building was tragically destroyed in WWII. The hall was rebuilt in 1951 and has flourished ever since. Situated in the heart of London’s legal quarter, this space is highly versatile and accessible. Comprising four rooms, this venue features a Main Hall, Parliament Chamber, Luncheon Room and Drawing Room. Each space can be hired separately according to requirements. Rooms have capacities from 20 to 600. We can create amazing bespoke Summer parties with a variety of packages to suit either receptions or seated dinners – contact us for any of your event needs! CENTRAL LONDON 19


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Header Software

Our legal case management Endorsed by the Law Society

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he Law Society has been added to the growing list of more than 65 regional and municipal law societies and bar associations across the world to approve Clio as a case management solution. Clio is now the first completely cloudbased legal case management solution to earn the endorsement of the Law Society of England and Wales. “The Law Society is pleased to be endorsing Clio and their completely cloud-based case management software,” said Simon Drane, the Law Society’s Executive Director of Business Development. “We identified Clio as a supplier which suits our members’ needs, especially as business efficiency is central to performance.” As the independent professional body for solicitors in England and Wales, the Law Society strives to be the voice of solicitors, to drive excellence in the profession, and to safeguard the rule of law. Representing the interests of over 160,000 registered legal practitioners to parliament, government and regulatory bodies, the Law Society of England and Wales influences the legislative and regulatory environment in the public interest and promotes the legal profession. “We are excited to be endorsed by the Law Society of England and Wales to help legal professionals across the UK gain the benefits of moving to the cloud,” said Jack Newton, CEO and Co-founder of Clio. “We are committed to transforming the practice of law for good, and we look forward to continuing our educational efforts and supporting the Law Society in moving the practice of law forward.” Before Clio, case management solutions available in the UK were outdated, server-based, and costly to purchase and manage, typically requiring extensive hardware and IT support. This put case management solutions out of reach for the average smalland medium-sized law firms. Since Clio came to the UK, the organisation has been continuously iterating and developing solutions designed specifically for UK law firms to stay competitive in an ever-changing and demanding market.

With Clio’s cloud-based legal case management software, solicitors can manage their cases from intake to invoice in one centralised, compliant platform. They can eliminate tedious tasks and gain better insights into their work, firm, and clients – from anywhere, at any time. Also approved by the Law Society of Scotland, Clio has helped thousands of UK legal practitioners move to the cloud and work more efficiently and effectively, with current customers singing the organisation’s praises. “I am very happy with the Clio software which enables me to run my legal practice efficiently and effectively. The customer service from Clio is exceptional, which means that I can always get the help I need to learn new aspects of the software and continually improve my client care. The Clio team is approachable, knowledgeable, professional and reliable, which is exactly what my business requires,” said Katie Beckett, Director at The Notary Solution Limited from Leeds, England. This commitment to transforming the practice of law for good goes beyond the software. Clio is committed to supporting lawyers in the UK through educational resources and has already participated in over 70 events, written over 80 guides, white papers, blog articles, and instructional materials, and has hosted over 1,000 webinars, personalised training sessions and online courses. With this new partnership, Clio looks forward to supporting even more UK practitioners in taking their practice to the cloud, and is offering members of the Law Society of England and Wales complimentary data migrations. For more information, please contact:

Sasha Perrin Senior Manager, Brand and Communications 1-888-858-2564 x625 sasha.perrin@clio.com

CENTRAL LONDON 21


Land and Property

Be warned HMRC are challenging property purchasers that have used Code 2 on their SDLT return stating the purchase is “mixed-use”. We have been asked to advise on a number of HMRC enquiries recently where they claim it is “their policy” to treat all land purchased with a dwelling as residential property unless there is significant commercial use of that land.

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ust to be clear, HMRC have never published policy that suggests this view is correct; to the contrary their taxpayer guidance states that non-residential property is “any other land and property that is not used as a residence”. It appears they are attempting to alter their view on what does and does not constitute residential property to suit their purpose.

within the definition. This leaves the door open for HMRC to take a guess on what does or doesn’t constitute the grounds of a dwelling; they are saying it’s unlimited.

HMRC appear to be taking the view that if the taxpayer retains access rights over the any land it remains the grounds of the dwelling even if that land is obviously farmland and subject to a licence. One HMRC officer has even suggested the taxpayer and What’s the problem? This current round of enquiries revolves around the statutory the farmer were holding the wrong type of licence over 20 acres of definition of residential property detailed within section 116, FA arable land. 2003. More specifically, what constitutes the grounds of a What can you do? dwelling. The enquiries we have seen rely heavily on the fact that For those matters that are already subject to a HMRC enquiry, we the grounds of a dwelling do not have a maximum size specified recommend that you do not accept HMRC’s view that the purchase is not mixed-use straight away even if you are not sure and could have made an error of judgement in stating that it was. Please get in touch with us for some guidance on what information you should provide in support of mixed-use status.

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The current statutory definition of residential property within section 116, FA 2003 may not be robust enough to weather a challenge in a First tier Tribunal hearing, so don’t give up. Only provide HMRC with the information they request that is pertinent to the enquiry. In our view providing details of the taxpayer’s current property ownership has no bearing on whether a purchase is mixed-use. Do not provide it, they are phishing. For those matters that have yet to complete, make sure you have gleaned enough evidence that any land and buildings purchased with a dwelling do not constitute its gardens and grounds. Look at the positioning of the land, how it surrounds the dwelling and how it is used and occupied. Find out if it attracts subsidies and if it is subject to an Agricultural Holding Number. Clearly you can only go on current taxpayer guidance, but our view is that at the very minimum there should be a licence or lease in place if the purchase is not a farming business comprising commercial farmland, even if cosmetically it looks obvious that the land does not form part of the grounds of the dwelling. Remember the minimum penalty for an incorrect SDLT return is 15% plus interest plus the SDLT underpaid. For those matters that have completed already you may want to double check what evidence you gleaned of mixed-use status on the effective date and check to make it is adequate based on current taxpayer guidance. If it is not please get in touch for some assistance.

Stephen Griffiths, Griffiths Allen Stamp Duty Advisers office@griffithsallen.co.uk 22 CENTRAL LONDON


Land and Property

Mind the Gap! Sackville UK Property v Roberts [2018] EWHC 122 pic (L-R) Tamsin Cox and Julia Petrenko

Landlord and tenant practitioners will no doubt be aware of the difficulties which can arise in relation to service of notices when a registered lease is assigned, but the transfer is not registered at HM Land Registry.

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n a number of cases (including Pye v Stodday Land Limited [2016] 4 WLR 168 and Brown & Root Technology Ltd v Sun Alliance and London Assurance Ltd [2001] Ch. 733) notices served by the transferee in the’ registration gap’ have been found to be invalid. The Law Commission Report on Updating the Land Registration Act 2002 suggested that in relation to new leases (those granted after the coming into force of the Landlord and Tenant (Covenants) Act 1995) the position might be different given that the Act defines assignment as including an equitable assignment. The decision of Fancourt J in Sackville UK Property v Roberts, however, demonstrates that the position is not this straightforward, and that the registration gap still has to be approached with care. In Sackville, the landlord (“L”) granted the tenant (“T1”) a lease of a premises for a ten year term commencing in 2013. The lease contained a tenant’s break clause exercisable on 14th March 2018 and required at least nine months’ written notice to be given. T1 was duly registered as the leasehold owner at HM Land Registry. In 2017, T1 obtained a licence from L giving consent to assignment, and in March 2017 assigned the term to T2. In May 2017 T2 purported to serve on L notice exercising the break clause. T2 was not, however, registered as the leasehold owner until July 2017. L denied that the break notice was valid and commenced proceedings seeking a declaration to that effect.

that the agent intended to do the act on behalf of the principal. This was not established by the evidence here. Further and in any event, the notice (given in the name of T2) was not valid unless a reasonable recipient in L’s position would understand that when it referred expressly to T2, it meant to say T1. Fancourt J held that it would be going too far to say that a reasonable person in L’s position would have realised that the notice meant to say T1 given, in particular, that since the transfer rent demands had been sent to T2 who had been treated as the tenant. The notice was therefore invalid. This decision turned on its facts and, in particular, the definition of ‘tenant’ in the lease. A differently worded lease might entitle an equitable assignee to serve a break notice in the gap if the terms of the break clause were capable of such a construction. Given the problems the registration gap can cause, the following should be borne in mind: 1. If it is anticipated that a notice will need to be served by the transferor in the registration gap, it would be sensible to provide for this to be done in the transfer, most straightforwardly by appointing the assignee as the assignor’s agent for that purpose; and 2. If there is doubt as to whether the transferor or transferee should serve the notice (for example depending on the definition of tenant in a new lease) then the cautious approach is to serve two notices without prejudice to the validity of each other, though of course, that will require the cooperation of the assignor, unless agency has been granted in advance.

Fancourt J explained that the first question was by whom, in these circumstances should be the break notice have been given. T2 argued that, as assignment is defined in the 1995 Act as including an equitable assignment, as soon as the transfer had taken place it was entitled to the benefit of the landlord covenants and was subject to the burden of the tenant covenants in the By Tamsin Cox Barrister Falcon Chambers lease, including in relation to the break notice. Fancourt J held And Julia Petrenko Barrister Falcon Chambers however that the 1995 Act did not vary the meaning of conditions in the break option. The lease provided that the tenant could terminate the lease by giving notice. ‘Tenant’ was defined as including successors in title, but T2 was not yet a successor in title at the date of service. It was entitled to the benefit and burden of the covenants by virtue of the 1995 Act but lease and title remained vested in T1, who held on trust for T2. The next question was whether the notice was given by or on behalf of T1. At the time of service, T1 and T2 had a mutual director. He instructed solicitors to serve the notice to determine the lease and the solicitors served the notice in the name of T2. Fancourt J explained that in order for an unidentified principal to take the benefit of an agent’s action it was necessary to establish

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Sharing our expertise.

CPD

CPD from Geodesys. All you need to know. Geodesys offers a range of conveyancing CPD options including housing industry updates, regional housing analysis, legislation updates and product training. Look out for our regional events and don’t forget that we also organise in-house training to suit the needs of your team. Find out more: call Geodesys customer services on 0800 085 8050.

www.geodesys.com/events


Land and Property

020 8115 1552 knightfrank.co.uk/kingscross Grenville Mansions £650,000

Attractive yields on offer in King's Cross Over the last three years the average achieved prices in King’s Cross have increased and Knight Frank have carried out 22% more sales transactions in the year to May 2018 compared to the previous 12 months.

W

ithin the same period, rental values in the area increased 4% and tenancies agreed by Knight Frank were 20% higher. There are a number of relevant factors that have caused this surge. The 67 acre regeneration site has substantially increased the popularity of the area, as has the presence of both Central Saint Martins Arts College and University College London. It has been estimated that across the capital a staggering £2 billion is invested each year by parents securing accommodation for their children while they are studying. As a result of the significant amount of students looking to live in the area, properties are let quickly, with the average time on the market before finding a tenant being a mere week in September. Property yields in the area, as a result of these factors, are high for both the new developments and period properties in the area. For example Grenville Mansions, built in 1903, is ideally located for the amenities of both Russell Square and King's Cross, UCL is also less than a mile from the property. The one bedroom, third floor apartment is approximately 588 sq ft and at £650,000 it would produce a rental yield of 3.5%.

Keir Waddell Associate, Head of Sales keir.waddell@knightfrank.com

legal knotweed help Japanese Knotweed Ltd has a proven track record ffor or eradicating Japanese knotweed for for major building developers, local authorities and private landowners. We pride ourselves on being one of the leading Japanese knotweed removal experts in the UK.

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Within the King’s Cross redevelopment, even higher rental yields are occurring. With their central location for travel, and range of amenities ranging from a 24 hour concierge service to cinema rooms and spa’s; yields of up to 5.7% have been achieved. Currently on the market is a modern studio flat in the Tapestry building which is producing a rental yield of 4.6%. At 479 sq ft the apartment is located on the fourth floor and has a private balcony. The Tapestry building alongside the other new developments such as The Plimsoll Building and the Gasholders are also less than half a mile from Central Saint Martins. King’s Cross as an area has completely changed in the past few years. With Central Saint Martins moving to Granary Square in 2011 alongside of the new developments and the amount of money being invested in property for students; there is little shock that both sales transactions and rental yields have been on the rise in King’s Cross.

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The Report LONDON25 25 CENTRAL


Land and Property Here are two views on a recent Japanese Knotweed case that made the headlines (see page opposite)

Japanese KnotweedA Knotty Problem Japanese knotweed has long been thought of as a nuisance for property owners, causing problems between neighbours and disputes between sellers and buyers. A recent Court of Appeal decision has now confirmed its status as an actionable legal nuisance.

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s a result of the plant's invasive and damaging nature, and the expensive and time-consuming treatment required for its eradication, Knotweed has caused misery for landowners. This is exacerbated by measures recently introduced to combat it's spread. These include granting various bodies the power to serve "community protection notices" requiring landowners to control or prevent its growth. Failure to comply with such notices is a criminal offence, the penalties for which can include unlimited fines and even imprisonment. And we haven't even got to the costs relating to the damage that the plant itself can cause to roads, buildings, foundations and infrastructure. In its recent decision in Network Rail Infrastructure Ltd v Williams (2018), the Court of Appeal has held that Japanese knotweed caused an actionable nuisance. It held that it is not a nuisance because it diminishes the value of the land, but because it diminishes the amenity of it. The claimants in the case owned properties adjoining a railway embankment owned by Network Rail. The embankment was infected with knotweed, and it was spreading onto the claimants' land. They brought a claim in private nuisance for the impact of the presence of the plant on their properties. The Court's judgment has provided useful guidance on the tort of nuisance. In its most basic form, it is a claim for the unlawful interference with the use and enjoyment of a claimant's property. The Court made clear that this could be caused by inaction or omission as well as by positive activity. They clarified that physical damage to a property is not necessary for nuisance to be actionable; nuisance is a violation of real property rights including the interference with the amenity value of land. The Court found that the presence of knotweed had an adverse effect on the ability and cost of developing the land, thereby interfering with the claimants' use

and enjoyment of the property. Any alteration or improvement on the land would be more expensive and difficult as a result of its presence, and as such an actionable nuisance was established. The Court overruled the County Court's previous finding that the mere diminution in the value of the land was sufficient grounds for a claim confirming the principle that a claim for pure economic loss cannot be claimed in the tort of nuisance. As a consequence of this decision and its publicity, it is likely that similar claims will follow. It is unclear what impact this will have on the marketability of land affected by knotweed, nor on the approach which (already cautious) lenders will take given the expanding list of associated potential liabilities. There are also potentially far reaching implications for other forms of nuisance, such as dust, noise and fumes which could now give rise to claims even before physical damage is caused to neighbouring land so long as the amenity value has been diminished. Enquiries from clients around Knotweed issues should be treated with extra caution in the light of this latest decision. This is not a problem to be ignored in the hope it goes away. Prudent landowners should take steps to eradicate knotweed from their land and should put in place professional treatment plans to avoid interference with neighbouring land. Owners of property portfolios would be well advised to carry out regular surveys of their land to minimise the risks of future claims and avoid relying on tenants to deal with the problem.

Meghan Jobson Farrer & Co LLP

Standing out by being smart Standing out from the competition has never been a straightforward task for any business. However, the digital media landscape has increased complexity and changed the way people buy services and products.

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or property law specialists, there is no doubt it’s a crowded marketplace, although the opportunities to gain new clients are increasing. With interest rates continuing to stay low, the cut in stamp duty and Help to Buy schemes, and the numbers of new homes being built increasing, it is still a buoyant buyers’ market. So how can you stand out and attract this new business?

Have a digital presence and utilise it wisely Over 20 million online searches are made for legal services each year in the UK alone. A third of clients now find a lawyer via the web. However, a staggering 60% of law firms aren't doing any digital marketing at all. A website which clearly explains what you do and how you do it is the best starting point. It doesn’t need to be expensive, website creation tools such as WordPress are straightforward and if budgets are tight finding a good web developer to do the more complicated elements of development ensures money is well spent. Also consider using an online legal marketplace to bid for work. Ready-to-commit clients can be yours in exchange for a few pounds each time.

solicitor. The report found as well as cost, the main reason for this was a lack of consumer information about how legal issues can be solved and who can help. Therefore, cutting out jargon, providing clarity on costs, and explaining in layman’s terms how you can help and the process that is involved, will go a long way.

Be innovative The competitive marketplace is driving innovation in an industry which was previously reluctant to change. When looking at your marketing spend think about what will get you the most bang for your buck. How did your clients come to find you? A simple email survey could divulge what marketing channels work best. If word of mouth is still a main driver perhaps think about how you can incentivise clients to spread the word about your services by offering a reduced rate on repeat business or for a referral. Spend time researching which local media publications or online sites are well read and approach them about providing advice led articles. This can result in a free piece of editorial and will help to enhance your reputation as a trusted advisor.

Provide clear, transparent and concise information A recent report from the Solicitors Regulation Authority shows a third of people with a legal problem seek advice and just one in ten go to a

26 CENTRAL LONDON

Alex Boothman CEO of MyLegalAdviser


Land and Property

Network Rail

lose appeal in Japanese knotweed case

On 3 July 2018, the Court of Appeal handed down its judgment in the case of Williams & Waistell v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514, and in doing so set a landmark legal precedent for the control of Japanese knotweed.

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he County Court judgment was the result of private nuisance claims filed in 2015 against Network Rail by Mr Robin Waistell and Mr Stephen Williams. Neighbours Waistell and Williams, who own adjoining semi-detached bungalows in Maesteg, south Wales, had argued that Japanese knotweed on neighbouring Network Rail land was causing an actionable private nuisance by encroaching upon their properties and by being within seven metres of their properties, interfering with their quiet enjoyment of, and causing a loss of amenity in respect of, their properties by reducing their market value. The County Court found in favour of the claimants. It was held that they had no claim on the basis of encroachment as there had been no physical damage to the property but that the mere presence of Japanese knotweed within seven metres of their properties was sufficient to constitute private nuisance. The County Court awarded the Claimants compensation for the cost of treatment of the Japanese knotweed and the residual diminution in value to the properties. Grounds for appeal Network Rail appealed the decision on a few grounds, including that the presence of knotweed on Network Rail’s land within seven metres of the claimants’ properties was incapable of causing an actionable nuisance merely because it diminished the market value of the claimants’ respective properties. The claimants cross appealed on the basis that as the knotweed had encroached onto a neighbouring property that owner did not need to prove that the knotweed had caused physical damage to the property for the encroachment to constitute a private nuisance. The Court of Appeal dismissed Network Rail’s appeal and upheld in most part the ruling made in February 2017 at Cardiff County Court, albeit on different grounds. Interference with land’s amenity value The Court of Appeal held that the claimants could not claim for private nuisance merely because of the diminution in the properties’ market value due to Japanese knotweed within seven metres of the property. This is because the purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset, its purpose is to protect the land’s

intangible amenity value which concerns landowners’ use and enjoyment of the land. Therefore, the Court of Appeal judgement found that the mere presence of knotweed in an adjoining property is not in itself capable of being an actionable nuisance, unless it threatens to encroach, or has already encroached. However, the Court of Appeal held that once encroachment or imminent encroachment is established, damage is assumed and claimants can succeed in their claims for private nuisance and be compensated for both the cost of treatment and the loss of amenity caused by the Japanese knotweed. The Court of Appeal found that the loss of amenity value was the same as the diminution in value found by the County Court and upheld the award. The result of this case has far-reaching consequences; it solidifies the fact that Japanese knotweed is an actionable nuisance for which damages can be claimed. This means its presence imposes an immediate burden on landowners who not only face the existing difficulties and expense of eradicating Japanese knotweed from the affected land, but now also face the concern of being liable to others if their knotweed threatens to encroach, or has already encroached, onto another’s land. Charles Lyndon Solicitors, who acted for Mr Waistell said: “Hopefully now organisations like Network Rail will take their responsibilities seriously and remove the knotweed on their properties. As one of the few firms specialising in Japanese knotweed, we have successfully represented a huge number of clients affected by Japanese knotweed and ensured they are compensated for the cost of treating the Japanese knotweed and the impact of it on the value of their properties.” Expert help is at hand Japanese Knotweed Ltd undertook a Japanese knotweed property risk survey for the Waistell private nuisance claim, and work closely with Charles Lyndon and other solicitors involved in knotweed claims. At Japanese Knotweed Ltd, we provide expert knotweed consultancy and contracting, delivering surveys, treatment and excavation programmes throughout the UK. We have an in-house team able to help and support with knotweed legal issues. If you require Part 35 compliant legal knotweed reports with a detailed knotweed remediation plan, please contact us on 0333 241 4413 or email contact@knotweed.co.uk or visit japaneseknotweed.co.uk

CENTRAL LONDON 27


Premium Residential <0.25Ha

Environmental | Flood | Ground Stability | Energy & Infrastructure

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This page should always be read in conjunctio on with the full report. The Professional Opinion indicates the potential risks and any other potential issues associated d with the property. The results should be disclosed to client and/or lender and/or insurer as appropriate.  A ‘Pass’ is g given if no p potential p property p y spec p cific risk has been identified.  A ‘Pass with Considerations’ is given where there are potential hazards in the locality to bear in mind d, or if there are features nearby which some clients might consider could affect them.  A ‘Further Action’ is given if there is a potential t property specific risk and a further action is advised.

In the event of a request to review the Professio ional Opinion based on additional information, or if there are e any technical queries, the professional advisor who ordered the report should contact us at info@futureclimateinfo.co om, or call us on 01732 755 180.

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Land and Property

Interaction is key to getting the most of your CPD A

Continuing Professional Development (CPD) is an integral part of any conveyancer’s progression and aptitude, as well as being an effective way to sharing expertise and best practice. Regulatory bodies such as the Council for Licensed Conveyancers and Solicitors Regulation Authority expect property practitioners to undertake CPD activities, as well as reflect on their learning and apply to their day-to-day working life.

ny approach to gaining CPD points is valid so long as the legal professional can demonstrate that it contributes to the service they are offering. Today, participants are overwhelmed with choice as there are a host of activities to choose from, including webinars, coaching / mentoring, courses, research and events – so how best can a solicitor invest their time in CPD? Geodesys – part of Anglian Water and a leading provider of conveyancing searches for residential and commercial properties throughout England and Wales – regularly hosts a series of complimentary CPD events for conveyancers across the country.

about the industry, legislation and products available to them. • Real-life scenarios and case studies are an excellent way to apply learning back in the workplace and show what solutions are available for particular situations. • Event takeaways. Event organisers usually give participants a copy of the presentations and examples discussed to help embed learning when back in the office. • Networking. Events provide the opportunity for delegates to network with one another as well as the presenters, extending the learning potential. • Mix it up. Cover a number of areas and topics in one fell swoop by attending a CPD event which features a mix of different topics.

Worth three CPD points, the popular, interactive events feature industry experts like property market analyst and commentator Kate Faulkner and provide highly informative seminars looking at a mixture of topics such as the threats the modern conveyancer is exposed to and the best tools for remaining compliant. Jane Moir, Associate Solicitor for Sprake and Kingsley claimed one of the events to be: “The best CPD event I’ve attended!”

Conveyancers are extremely busy individuals so it’s important their time is used wisely when investing in CPD training. Events are a powerful way to interact and learn from many different professionals as well as boosting networks, confidence and knowledge.

“Taking time out of the office is often considered an inconvenience for busy professionals, but actually stepping away from the desk away from distractions, mingling with peers and being in a learning environment, means our events offer a wealth of benefits,” says Jonny Davey, Conveyancing Product Manager for Geodesys and regular presenter at events.

Geodesys offers a range of conveyancing CPD options including housing industry updates, regional housing analysis, legislation updates and product training. Look out for their regional events and don’t forget they also organise in-house training to suit the needs of your team. Find out more by calling their customer services team on 0800 085 8050.

• Interaction. Delegates are encouraged to contribute to discussions which helps them benefit from shared knowledge

CENTRAL LONDON 29


Helping you get on with the matter in hand Affordable expert guidance

View sample pages at lawsociety.org.uk/books


Wills and Probate

Mental capacity â&#x20AC;&#x201C; Wills and lifetime gifts How is mental capacity assessed when wills and lifetime gifts are challenged after death of a testator/donor?

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he test to establish a living person's capacity to make a will (their 'testamentary capacity') is contained in the Mental Capacity Act 2005 ('MCA'). Under the MCA test, a person is assumed to have testamentary capacity. If capacity is in doubt, the test requires a person to show that they understand and retain information relevant to a decision (in this case, the decision to make a Will), to use that information in the decisionmaking process, and to communicate their decision. Where, on the other hand, a testator has died and a Will is subsequently challenged on the grounds of lack of capacity, a common law test is to be used to establish testamentary capacity. This test requires that it be shown that the deceased had testamentary capacity at the time their Will was made (in other words, capacity is not assumed). Further, there are additional requirements in the common law test. A testator must be able to "comprehend and appreciate the claims [of any potential beneficiaries] to which he ought to give effect", and must not be suffering from a psychiatric disorder. The test for capacity in respect of lifetime gifts is the same as that for Wills challenged after death. In other words, it must be shown that a donor had capacity at the time a gift was made (capacity will not be assumed). It is not enough that the donor understands the legal effect of any gift. In addition, the donor must be able to "comprehend and appreciate the claims" of, for example, any dependents they may have. For instance,

where a parent suffering from dementia gifts their home to one of their children, and the gift is subsequently challenged by the other children, the test requires that the disinheritance of other children was brought to the parent's attention at the time the property was gifted. Further, any psychiatric disorders will be taken into account when assessing the donor's capacity. A potential difficulty arises here. A donor's capacity to make gifts will, during the donor's life, be assessed under the MCA test. However, on the donor's death, capacity will be assessed under the common law test. This could lead to different outcomes, in view of the different requirements noted above. In practice, however, it would be expected that an assessment of capacity reached during a donor's lifetime would be upheld after the donor's death. For more information, please contact the partner having responsibility for your affairs or any partner in the private client department on 020 7412 0050 or email info@hunters-solicitors.co.uk or visit http://www.hunters-solicitors.co.uk/private-client/.

Daniel Watson Associate Hunters Solicitors

CENTRAL LONDON 31


Wills and Probate

A love that lasts forever Every year, we care for around 15,000 dogs at our 20 rehoming centres across the UK. It’s only with the help of our wonderful supporters that we can give these dogs the love, care and attention they deserve while finding them the right home.

32 CENTRAL LONDON

P

of their married life rescuing and caring for neglected and unwanted dogs.

A third of our funds come from gifts included in supporters Wills. One such supporter, Dr Thomas Preston, has very kindly pledged to leave a legacy to Dogs Trust in his Will. He and his beloved wife, Pat, spent 40 years

Pat had always had a strong bond with dogs, having lived with them for much of her life. She couldn’t bear to see them injured or illtreated. Sadly she passed away in 2014, leaving behind Tom and her darling dogs. It was their shared belief that every dog deserves a long, happy life that led to her making the incredibly generous decision to leave us a gift in her Will. Dogs Trust promises to never put down a healthy dog. Please help us keep this promise by considering leaving us a gift in your Will.

roviding expert veterinary care, specialist rehabilitation equipment and training facilities doesn’t come cheap. Not to mention all the vital everyday necessities like food, bedding and heating. Dogs Trust receives no government funding, which means we wouldn’t be able to run our 20 state-of-the-art rehoming centres without the generous donations from our supporters.


Wills and Probate

How far back can I trace my ancestors? The first port of call when it comes to finding out the basics about your relatives, even if your interest in family history is minimal, is through the use of census records. Bursting with useful information that can see your family tree grow within minutes, the most popular genealogy sites store these, enabling you to reach names at speed.

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hat said, you may reach a certain point where you’re looking for facts before the census began. General registration of records of birth, deaths and marriages began in 1837, and the first useful census was collected in 1841. (The first ever census actually dates back to 1801, but has no useful information – it’s essentially just a list of names!) What about before that? What are your options then? Winding the clock back further, records can be found in the main parish registers. It was Henry VIII who decreed that each of the 11,000 parishes should keep a record of baptisms, marriages and burials from 1538 onwards. Although these don’t hold as much information as the census gives us, they’re a useful and reasonably reliable source to look at. Britain actually has some of the greatest in the world, in terms of accessibility and detail. Parish registers can be found in county archives, but it’s worth remembering that whereas a census would tell you where your relative was born, a parish register will only tell you about their baptism. This is a small but potentially vital detail, which could have a huge impact on your research. When you come to look through these registers, you’ll be looking for specific entries for particular people. This

means you need a name to go from. Equally, it’s important to remember you may need to physically visit a church or record office as there’s no central archive that holds all this information. The information available, even then, is likely to be sparse, as it all depends on the vicar who recorded it at the time. Some only mention the facts, whereas others might have more details such as wedding preparations. As heir hunters, at Fraser and Fraser we very rarely have to use records predating the census records. For probate researchers, parish records are mostly used when working on a trust case, which may have been going on for some time. Even in this instance, it’s usually only helpful to determine someone’s age. That said, for those interested in ancestry and family history, parish records are incredibly helpful, and we would recommend delving that bit deeper if you’re wanting the full works. If you are a solicitor, trustee of an estate or an individual having trouble with finding an heir to a Will, get in touch today to find out how Fraser and Fraser can help you. We have our own library, access to various records, specialist software, and national and international connections that can help us help you. Call us on 020 7832 1400 or email legal@fraserandfraser.co.uk

CENTRAL LONDON 33


Wills and Probate

Foreign assets: should you try to cover everything under one will? Advantages of multiple wills

If you own assets in more than one jurisdiction, you need to decide whether it is better to have one will covering worldwide assets, or to have separate wills in each jurisdiction:

For many people, the best choice is to have multiple wills. One advantage is that the lawyers can get on with the process of probate (or its local equivalent) as soon as they are aware of the death. Where there is only one will, things take longer because the process typically has to be done consecutively in each jurisdiction. The wills would have been drafted by lawyers experienced in the local jurisdiction. This is especially useful if tax is an issue. The two jurisdictions could have different types of law, such as “common law”, “civil law” or “sharia law”. A will made in one of these jurisdictions will not fit easily with the laws of another. For example, a will made in England and Wales, because it would typically appoint executors, and include trusts, would not necessarily be effective – and indeed from a tax viewpoint could be damaging – if applied in Spain.

Advantages of a single will It can be much cheaper to get just a single will drawn-up. This could prove only to be a short term advantage, however, since the

L E T ’S WOR K TOGE T HE R džĐůƵƐŝǀĞůLJ ĨŽƌ ůĂǁ ĮƌŵƐ͕>ĞŐĂů EĞƚǁŽƌŬ >ŽŶĚŽŶ ŝƐ Ă ĨƌĞĞ ƚŽũŽŝŶƌĞĨĞƌƌĂůĂŶĚƐƵƉƉŽƌƚƐĞƌǀŝĐĞǁŚŝĐŚĂƐƐŝƐƚƐŵĞŵďĞƌƐ ďLJŽīĞƌŝŶŐĞdžƉĞƌƚůĞŐĂůĂĚǀŝĐĞƚŽƚŚĞŝƌĐůŝĞŶƚƐŝŶĂƌĞĂƐƚŚĞLJ ĚŽ ŶŽƚ ƉƌĂĐƟĐĞŝŶ͘ KǀĞƌ ƚŚĞ ůĂƐƚ ϭϬ LJĞĂƌƐ͕ ŽƵƌ ŶĞƚǁŽƌŬ ŚĂƐ ŚĞůƉĞĚ ŚƵŶĚƌĞĚƐ ŽĨ ůĂǁ ĮƌŵƐƚŽ ƌĞƚĂŝŶ ƚŚĞŝƌ ĐůŝĞŶƚƐ ĂŶĚ ŝŶĐƌĞĂƐĞ ƚŚĞŝƌ ƌĞǀĞŶƵĞ ĚƵĞ ƚŽ ŽƵƌ ŶŽŶͲƉŽĂĐŚŝŶŐ ĐŽŵŵŝƚŵĞŶƚĂŶĚĨĞĞƐŚĂƌŝŶŐĂƌƌĂŶŐĞŵĞŶƚƐ͘ tĞ͛ƌĞŽƉĞƌĂƚĞĚďLJ,ƵŐŚ:ĂŵĞƐ͕ĂĨƵůůͲƐĞƌǀŝĐĞ͕ƚŽƉϭϬϬh< ůĂǁĮƌŵ͘tŝƚŚŵŽƌĞƚŚĂŶϱϬLJĞĂƌƐ͛ĞdžƉĞƌŝĞŶĐĞŝŶƉƌŽǀŝĚŝŶŐ ƐƉĞĐŝĂůŝƐƚ ůĞŐĂů ĂĚǀŝĐĞ͕ ǁĞ ŚĂǀĞ ƚŚĞ ĞdžƉĞƌƟƐĞƚŽ ĚĞůŝǀĞƌ Ă ƐĞƌǀŝĐĞLJŽƵĂŶĚLJŽƵƌĐůŝĞŶƚƐĐĂŶƚƌƵƐƚ͘ dŽ ƌĞĂĚ ĂďŽƵƚ ŽŶĞ ŽĨ ŽƵƌ ƐƉĞĐŝĂůŝƐƚ ĂƌĞĂƐ ŽĨ ĞdžƉĞƌƚŝƐĞ͕ƉůĞĂƐĞƐĞĞŽƵƌĂƌƚŝĐůĞĂďŽǀĞ͘ Legal Network London are delighted to support The City of Westminster & Holborn Law Society and are sponsors of the Annual Dinner on 7 November. &ŽƌĨƵƌƚŚĞƌĚĞƚĂŝůƐŽŶŚŽǁƚŽũŽŝŶ>ĞŐĂůEĞƚǁŽƌŬ>ŽŶĚŽŶ͕ ƉůĞĂƐĞĐŽŶƚĂĐƚƵƐŽŶ͗ legalnetwork@hughjames.com or 033 3016 4444 >ĞŐĂůEĞƚǁŽƌŬ>ŽŶĚŽŶŝƐŽƉĞƌĂƚĞĚďLJ,ƵŐŚ:ĂŵĞƐ͕ĂƚŽƉϭϬϬh<ůĂǁĮƌŵǁŚŝĐŚŝƐ ĂƵƚŚŽƌŝƐĞĚĂŶĚƌĞŐƵůĂƚĞĚďLJƚŚĞ^ŽůŝĐŝƚŽƌƐZĞŐƵůĂƟŽŶƵƚŚŽƌŝƚLJĂŶĚƚŚĞ&ŝŶĂŶĐŝĂů ŽŶĚƵĐƚƵƚŚŽƌŝƚLJ͘

34 CENTRAL LONDON

administration of the estate after the death might prove to be much more expensive. Some jurisdictions, mostly civil law jurisdictions, have a concept known as “forced heirship” which means that a person must leave their estate to certain specified heirs rather than, as in England and Wales, to anyone they choose. If the local law permits, people can achieve things through an England and Wales will which might not be possible in a will made locally. This is one situation where a single will is better than multiple wills. For example, the EU Succession Regulation says that most EU nations (although not the UK, Denmark or Ireland) allow people to elect for the law of their nationality to apply. A person of British nationality with a holiday home in Spain, for example, can use this to achieve something which would not be permitted under Spanish forced heirship rules.

By Andrew Jones TEP Senior Associate, Tax, Trusts and Estates, Hugh James


Wills and Probate

Estate administration: Are you or your clients doing enough to protect unoccupied properties this winter? Often, when a property becomes unoccupied, there can be extra risks that are not present in an occupied property. As experts at insuring unoccupied properties, the team at Unoccupied Direct has compiled their best advice to give to your clients when looking after an empty property.

I

t can take months to distribute an estate to its benefactors, so taking care of it through the winter can prove important. Keep the heating on and maintain the property Cutting the gardens back, collecting post and keeping the driveway or front yard free from weeds and relatively tidy will help make it seem that there is still someone living there, putting off possible thieves, squatters or vandals. Also, keeping the heating on at a minimum of 12°C will ensure that problems such as mould or burst pipes are less likely to occur, saving on higher costs of repair further down the line. Ask neighbours and invest in good quality light and alarm systems Particularly if the property has been left unfurnished, a reliable alarm system and automated lighting that comes on at intervals in the darker evenings can help deter potential thieves. Also, a trusted neighbour could be asked to keep an eye on things, such as if the alarm goes off or collecting post. They could also be offered an available parking space in return for their favours and this also goes a long way to making the property look used and cared for.

Check the home insurance is still valid Some insurers enforce a rule on many policies, where theyâ&#x20AC;&#x2122;ll stop providing cover, or reduce it, for homes left unoccupied for more than 30 - 60 consecutive days. This can be a problem when it comes to probate clients, as the average time for probate and estate administration to complete is six to nine months. The team at Unoccupied Direct works hard to make things as easy and time-effective as possible for solicitors, whilst providing the highest quality cover for any private clients, executors, attorneys or deputies with an unoccupied home to protect. For more information, simply head to: unoccupieddirect.co.uk, or give the team a call on 0800 015 2211. You can also email our Business Development Managers directly to set up a meeting or with any other queries, at: bdms@unoccupieddirect.co.uk â&#x2013;

CENTRAL LONDON 35


Digital Marketing

Digital marketing for law firms: How to win clients and influence people There is more pressure than ever before on acquiring more new clients at less expensive rates.

A

nd how do you cut through all the ‘noise’ on the Internet to make sure your firm is the one that potential clients will select? How do you nurture those initial enquiries and how do you communicate with clients throughout the relationship to maximise the likelihood of repeat or referral business? It’s not enough to stick to what you know – times are changing and there are disruptors ready and waiting to pounce in this industry. Building your business now means improving your online profile, driving more visitors to your website, converting more of those visitors into customers, and retaining more of those customers. It’s the only way to reduce marketing costs and increase profitability. Many marketing agencies will look to tip more enquiries into the hopper – and they might be successful at doing so. However, an agency with experience of working in-house with law firms, can make sure that every enquiry has a greater chance of becoming a successful paying client by optimising the entire customer experience. This means that your marketing pound goes further, and clients are more likely to recommend your services – it’s a win-win. We can help you to grow your business by putting your brand in front of more potential clients, and then making sure more of those enquiries lead to profitable business. Our experience in working with some of the most automated and largest firms in the UK puts us in a unique position to help you in the modern legal landscape. Crush the Competition Want to know how you measure up to your competitors? Want to know what their strategies and marketing activity looks like? Our state-of-the-art competitor benchmarking tools will elucidate the mystery, giving you insight you never thought possible. This enables you to get a step ahead – and stay ahead.

Sam Borrett legmark.com

36 CENTRAL LONDON


Book Review

Legal Aid Handbook 2018/19 Edited by Vicky Ling, Simon Pugh and Sue James With Anthony Edwards

ISBN: 978 1 91227 300 3 (print) 978 1 91227 301 0 (ebook) LEGAL ACTION GROUP The Access to Justice Charity www.lag.org.uk www.legalaidhandbook.com An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, ‘The Barrister’

INDISPENSABLE TO CIVIL AND FAMILY PRACTITIONERS: LAG’S ‘LEGAL AID HANDBOOK’ IS OUT NOW IN A NEW EDITION FOR 2018/2019

O

ver a decade has passed since the Legal Action Group started publishing the now long-established and reliable Legal Aid Handbook.

There can be no doubt that the number of readers – practitioners and lay readers alike -- who have benefitted from its specialist content and advice -- now number in the several thousands, virtually all of whom have commended the grace and clarity with which it is written. Like previous editions, this new edition has been brought completely up to date by an expert team of contributors including editors Vicky Ling, Simon Pugh and Sue James, together with Anthony Edwards. As Simon Pugh ends his association with the Handbook as General Editor, Sue James now takes over in that role. Interestingly, she was named Legal Aid Lawyer of the Year (LALY), Outstanding Achievement Award. All nine contributors together offer a wealth of experience and expertise in virtually all matters relating to legal aid and access to justice. ‘We think,’ say the editors, that the new Handbook for 2018/19 is ‘bigger and better than ever’ containing as it does, much new material. Of special interest to civil practitioners are the new chapters on community care and CCMS (Client Cost Management System). This is a system basically for managing civil cases, dealing with providers and providing a conduit for claims and submissions.

In one convenient volume the Handbook presents virtually all aspects of this complex and often vexed and controversial subject on which recent historical perspectives are also offered, one of which -- obviously -- was the withdrawal of legal aid in many civil and family disputes, primarily in the teeth of the recession of 2008. There is still however, around £40 billion left in the budget and the matter of who is eligible to claim and under what circumstances is discussed in all the necessary detail in the Handbook. As has been the case with other LAG publications, the primary aim behind the creation of this Handbook is to make it understandable and accessible to any readers who may need to represent themselves in court due to lack of legal aid funding. And speaking of convenience and accessibility, the beauty of the book is that it keeps readers bang up to date with the latest developments in this area of law. It is carefully structured for ease of use, with a detailed table of contents and index -- to facilitate looking things up -- plus five appendices. Paragraphs are numbered throughout and for further reference, the book also provides tables, namely of cases, statutes and statutory instruments and of European and international legislation. Anyone involved in the legal aid process, whether litigant in person or seasoned practitioner, will find this latest edition of LAG’s Legal Aid Handbook indispensable. The publication date is cited as at 16th July 2018. ■ CENTRAL LONDON 37


Book Review

The Taxation of Private Pension Schemes and their Beneficiaries First Edition. By Matthew Harrison ISBN: 978 0 41406 620 5 Sweet & Maxwell www.sweetandmaxwell.co.uk PENSIONS TAXATION: A NEW COMPREHENSIVE TEXT

T

he UK taxation of private pension schemes and the benefits provided from such schemes is the subject matter of this new book published by Sweet & Maxwell. In an area in which there is no established authoritative textbook, this book will be a welcome addition to practitioners’ libraries. The old system of tax ‘approval’ of pension schemes was replaced with a new regime applicable to ‘registered’ pension schemes with effect from 6 April 2006 (usually referred to as A-Day). The stated purpose of the reform was to simplify the taxation of pensions and to increase choice. Subsequent meddling by successive governments has created an incohesive mass of legislation so complex that few practitioners fully understand it. The changes brought about by the Taxation of Pensions Act 2014 in particular have created a regime of unprecedented flexibility, to such an extent that in many cases the benefits provided under a registered pension scheme will not even remotely resemble a ‘pension’ as that term has traditionally been understood. As the same time the law relating to the taxation of unregistered pension schemes has undergone similarly seismic changes: not only are practitioners now required to contend with the overriding disguised remuneration provisions, but they must also grapple with the potentially far-reaching changes made by the Finance Act 2017. There is clearly a compelling need for a textbook dealing comprehensively with this area. Part One of the book provides a detailed analysis of each aspect of the regime applicable to registered pension schemes, including the various tax reliefs and exemptions available, the taxation of benefits, the annual and lifetime allowances and the provisions relating to unauthorised payments. There are also chapters focussing specifically on the registration (and de-registration) process, the office of scheme

38 CENTRAL LONDON

administrator, the taxation of scheme chargeable payments, and the applicable inheritance tax provisions. Part Two deals with domestic and international unregistered pension schemes, including relevant non-UK schemes (such as QROPS), QNUPS, EFRBS, s. 615 schemes and also the pre-A Day regimes applicable to FURBS and correspondingly approved schemes. Separate chapters deal with the taxation of contributions, scheme investments, benefits, the disguised remuneration provisions, and the relevant inheritance tax provisions. All private pension schemes are within the scope of the book: whether occupational or non-occupational, large or small, providing money purchase or defined benefits. The book does not however cover public sector schemes or the state pension. For those who do not specialise in pensions, the book helpfully references the applicable pension legislation and other relevant non-tax law where appropriate. The author recognises that HMRC’s extensive guidance in the Pensions Tax Manual (PTM) is an excellent resource insofar as it relates to the practical application of the tax rules. But to the extent that the PTM represents HMRC’s interpretation of the technical aspects of the law, it is more open to scrutiny and is in any event subject to change without notice. As the author notes in the Preface, “[t]here seems to be a greater tendency amongst those advising on the taxation of pension schemes to treat the PTM as a definitive statement of the law than there is in other areas of tax law. Any tax adviser approaching the PTM in this way is doing his client a disservice.” The author has endeavoured to state the law as at 1 November 2017.■


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Profile for Benham Publishing Limited

Central London November 2018  

the official law magazine for the Westminster and Holborn law Society

Central London November 2018  

the official law magazine for the Westminster and Holborn law Society

Profile for benham