The Report Winter 2014

the REPORT The City of Westminster and Holborn Law Society

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Issue No.87 Winter 2014

Inside this issue: › The Conveyancing › Expert Witness › Leaving a Legacy Process

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DISCLAIMER 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.

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INTRODUCTION

22 PROFESSIONAL PRACTICE

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COUNCIL MEMBER’S REPORT

28 LEGACIES

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EXPERT WITNESS

32 FILM AND THE LAW

14 NEWS AND EVENTS

34 PRACTICE MANAGEMENT

20 PROPERTY the Report 3

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Introduction

THE PRESIDENT’S COLUMN I SHOULD LIKE TO TAKE THE OPPORTUNITY OF THIS EDITION OF THE REPORT TO INTRODUCE MYSELF. I AM MICHAEL FLETCHER, YOUR NEW PRESIDENT OF THE CITY OF WESTMINSTER & HOLBORN LAW SOCIETY, INSTALLED AT THE SOCIETY'S AGM ON 29TH OCTOBER. WITH MY OTHER HAT I AM THE HEAD OF THE PRIVATE CLIENT DEPARTMENT AT LEE BOLTON MONIERWILLIAMS; I TRAINED AS AN ARTICLED CLERK WITH LEE BOLTON & LEE (AS IT THEN WAS) AND HAVE BEEN A PARTNER AT THE FIRM SINCE 1986.

It is with some trepidation that I take over the Presidential duties from Susanna Heley but I am looking forward to my year and hope to meet as many of our members as I can at the various events we are planning.

The first of my duties as the new President will be hosting the Annual Dinner on 30th April 2015. Please save the date! Further details will be available shortly. We will be using this occasion to present the Gamlen Prize.

The Prize was established in memory of the Gamlen Family and particularly St John Gamlen, the last of five generations of solicitors and a meticulous and sparing draftsman. It is awarded annually to a Trainee Solicitor who is either a member of the Society or who has, or has arranged, a training contract in the Society’s area.

The annual award is presented to a prospective trainee with a firm or organisation in the Society’s area considered the most promising on the Legal Practice Course run within the City of Westminster and Holborn. Judged by a committee chosen by the City of Westminster and Holborn Law Society, particular regard is made of the candidate's ability to reduce a complicated subject into simple language that is easy for a lay client to understand.

2015 is of course the 800th anniversary of the Magna Carta and we are using this as the theme for the Legal Charities Garden Party on June 10th 2015.

The Legal Charities Garden Party was founded by the Holborn Law Society (one of the constituents of your Society) to raise funds for lawyers (of all descriptions – not just solicitors) who are in need and also for their dependents.

Started in 1968, the Garden Party is a popular meeting place for judges, solicitors, barristers, barristers' clerks and legal executives. Every year the Legal Charities Garden Party attracts many hundreds of guests.

In addition we are hoping to repeat the success of some of our social events in 2015 including tours of the Supreme Court and Walking Tours of Legal London. We are of course always on the lookout for new ideas for networking events and one suggestion we are currently

considering is a reception with other professions. If you have any ideas for events please do let us know.

Michael Fletcher, President

The Society will be co-presenting the Wig & Pen Prize towards the latter end of my year in office. This award, made jointly with the City of London Law Society, provides an opportunity to give public recognition to the invaluable pro-bono work undertaken by recently qualified solicitors.

Nominations are sought for individuals who have made a contribution to broadening access to justice in their communities and helping to ensure that the legal system is open to all. So please do keep watching for further information on both the website and future issues of The Report.

The Society is run by and for its members.

The General Committee meets in every second month, alternating between Westminster and Holborn. We receive reports from our various sub-committees who consider developments in the law which have an impact on the practitioners in the various specialisations of our profession, as well as our vibrant Professional Matters and Law Reform sub-committees. We are always happy to welcome new members so please do get in touch if you would like to learn more.

There are a number of challenges to the profession, in both legal developments and the changing regulatory framework we hope to offer opportunity for discussion as well as having a voice (and an ear) on the Law Society Council.

MICHAEL FLETCHER PRESIDENT

DIARY January 21st LBMW 30th Pub Quiz - tbc

February Welcome Drinks - tbc

March 18th Wedlake Bell Tours of the Old Bailey - tbc

April 30th Annual Dinner - tbc

May 1st 18th London Legal Walk 20th LBMW

June 10th Legal Charities Garden Party - tbc

July 22nd Wedlake Bell

Tour of the Supreme Court - tbc

September ANNUAL DINNER 30TH APRIL 2015 AMBA HOTEL CHARING CROSS THE STRAND LONDON WC2N 5HX Further details to follow.

23rd LBMW Walking Tours of Legal London - tbc

October 21st AGM

November 18th Wedlake Bell

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Introduction

COUNCIL MEMBER’S REPORT JULY 2014 If you think that the Law Society doesn’t properly represent the interests of solicitors you might like to become President of the Law Society.

All you need to do is to become a Council member and then be elected Deputy Vice President by your 90-odd Council colleagues.

(Some are odder than others.)

The following year you’ll be Vice President and then, a year later, President.

Jeffrey Forrest

Nick Fluck is someone who followed this course and enjoyed (perhaps that’s not the word) the Presidency from July 2013 to July 2014. Nick is one of two partners in a small Lincolnshire firm and he isn’t a City fat cat or someone who might be considered out of touch with the realities of life for most ordinary solicitors in the second decade of the 21st Century.

He didn’t know what hit him.

In December 2013 he and Des Hudson faced a Special General Meeting and a motion of no confidence from disaffected criminal legal aid practitioners. The motion was actually passed narrowly - and promises were made to continue to oppose the legal aid cuts and to improve communication with members. Nick took it all personally although no doubt whoever had been President would have been treated the same and at least they couldn’t say he was a City fat cat and therefore out of touch with the problems of criminal legal aid solicitors.

The truth is that the Law Society is the representative of ALL solicitors, covering the whole range of practice, from criminal to civil litigation, to conveyancing, to wills and probate, to commercial law, to whatever City lawyers do, and everything else. It’s a tough brief and sometimes it’s impossible to resolve conflicts between solicitors who hold opposite views on certain matters. Many criminal legal aid solicitors were unhappy at what they saw as the Law Society’s lack of robustness in its negotiations with the Ministry of Justice or its insufficient consultation with them but the Law Society has to operate within - what Rab Butler said of politics (or was it Otto von Bismarck?) the art of the possible.

And, regrettably, it IS about politics and the swingeing cuts in legal aid and access to justice were initiated by the last Labour government and are not going to be reversed if there is another Labour government (or any flavour of coalition) next year, the 800th anniversary of Magna Carta.

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In any event, at the final Law Society Council meeting of 2013/4, on 9th and 10th July, Council sought to make amends by approving a request for financial support for the judicial review challenging the defects in the Ministry of Justice’s consultation process. That support was made conditional on the claimants first proposing to the MOJ that the parties should mediate. That proposal was subsequently made and rejected on the basis that it was not a good use of public funds because it was unlikely to succeed! A fine example of the government’s belief in ADR. As is now known, the judicial review application succeeded, followed swiftly by a short notice of re-consultation, itself subject to much criticism. At the time of writing the eventual outcome is unknown.

It is apparent that the Law Society needs to do much more in communicating just how much positive work it does on behalf of the profession and indeed for the public and by now you should be seeing the Society’s key communication campaign, in the press, in the streets and on social media.

In other news from the July meeting, Council approved a 17% reduction in the 2014/5 Practising Certificate fee, based on a proposed budget intended to reduce the whole Law Society group’s funding requirement in 2014/15 by approximately £12m.

The July meeting was the final one for our City of Westminster Council members, Sue Nelson and Peter Adams. They will be missed in Chancery Lane and should both be congratulated for their assiduous work in Council and committee for the profession. It was also the last meeting for Des Hudson, retiring after 8 years as Chief Executive in which time he helped to steer the old Law Society from a representative and regulatory body to a membership and public interest organisation of which its members should be proud.

JEFFREY FORREST

Expert Witness

THE EXPERT WITNESS INSTITUTE C “Expert Witnesses - Fit For Purpose”.… Yes - They are!

by PHILLIP TAYLOR MBE, Richmond Green Chambers

T

he Expert Witness Institute (EWI) returned for its 14th year to the excellent facilities of the Church House Conference Centre next to Westminster Abbey on 25th September 2014.

Well over 150 experts and members of the legal community participated in a day full of legal updates, expert training and practical information, workshops and question and answer sessions.

It will come as no surprise to read that this year’s Conference was another excellent event which surpassed all my expectations for its content, clarity and the overall pleasantness of the experience. It is nice to attend an event which people clearly like coming to without feeling they are pressed into it!

The Conference, chaired again so well by Amanda Stevens, reviewed recent legislative changes (the Jackson reforms and LASPO to name a couple) and to anticipate how these issues will shape the legal landscape with the inevitable effect on the role of experts for the future.

The main aspect of the EWI Conference which I believe is its greatest selling point is the great practical benefit it gives to the attendees that I spoke to throughout the day. The detail contained in each of the sessions and the contributions from the attendees made the day well worthwhile and, as is often the case, it is extremely difficult to select the important high points so I will settle for the main guest presenters again although I have no wish to denigrate or limit the tremendous value of all those who participated.

LORD DANIEL BRENNAN QC Dan Brennan probably needs no introduction to most of the audience although younger lawyers will probably remember the name from his time as Chairman of the Bar Council at the beginning of the century. He came to the Conference with a series of important points and some proposals which are much in keeping with our current legal concerns. It was a vintage sparkling talk, both penetrating and thought provoking, with all the usual policy ‘suspects’ present including the continuing debate on future legal aid funding.

Brennan’s short survey of DNA evidence and the implications on liability issues for experts were useful areas to begin his main theme which I took to be fairly substantial proposals for the future on training.

Such proposals can be summarized simply as the need for law firms to achieve a greater understanding of the economics of the law and the need for training by both legal professionals and experts and he welcomed the developing role of the Judicial College.

He also expressed the view that there is a public expectation today in ‘seeing and knowing everything’ whilst at the same time that ‘the law will do its best to get it right’ when making decisions. We have the basic policy which I prefer to call a “legal fiction” that ignorance of the law is no excuse but you try telling the client that! So training and education are the keys I took away with me.

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Amanda Stevens A certain modern reality is what ran through Brennan’s presentation with his ‘fit for purpose’ theme which will inevitably require training, re-training and genuine education uplift akin to the ‘Public Legal Education’ concept which will probably become even more pressing in the immediate future.

The last word from Dan Brennan must be on legal aid cuts which he described as “extremely crude”, “insensitive”, and “monetary based”. I am glad he said what most attendees were thinking and of course we had no Coalition Government speaker to respond… which was probably a good thing this year after the Solicitor General’s carefully constructed speech in 2013 which was at least ‘listened to’.

THE PANEL SESSION - A VIEW FROM THE BENCH The next session deserves some comment for its high content and thought alone. It was chaired by Michael Napier in conversation with Mr Justice Ramsey and Mr Justice Coulson and the questions and answers were what I believe many attendees found of great value (as long as some of them did not have to raise them themselves!).

It is pleasing to say that “hot tubbing” made its regular appearance (I am a firm supporter of it as an evidentiary device) and Ramsay J made the observation that the principle of access to justice must be at a ‘proportionate cost’ which is a kind way of saying that we all have to tighten our belts a bit as the shrunken budgets are unlikely to expand in the immediate future. Michael Napier was, of course, an assessor to the Jackson Review so those reforms featured prominently in some of the questioning.

One important theme which will almost certainly develop next year is the philosophical change on the

‘contingency fee’- this issue is going run and run after the turmoil of Conditional Fee Agreement (CFA) introduction and its uneven history to date where successive governments have not been able to get the ‘no win, no fee’ concept right: at least that is the view of the ‘some’ and possibly the ‘many’.

ADDRESS BY SIR ANTHONY HOOPER Another highlight for me was the excellent contribution from Sir Anthony Hooper who reprised his role from 2013 and built upon the themes of where the EWI is going as chairman. Institute members will be very familiar with Hooper’s position on most issues from his columns in the journal so I don’t intend to repeat what he said but merely to compliment him on the sage direction in which he is taking the EWI as change is clearly on the way in the longer term.

Members of the Institute will also be well aware of the current ‘Agenda Setting’ which the EWI will need to revisit for experts to remain fit for purpose in 21st century and that is the linked functions of training, accreditation and probable regulation at some level or other in the future. It remains a recurring theme and one I believe will have to be decided upon before too long.

PROFESSOR ADRIAN ZUCKERMAN It is always a pleasure to hear from Lord Zuckerman and he did not disappoint. I was fortunate enough to corner him beforehand during the coffee break in an attempt to ascertain the strength of his views on maintenance of the accusatorial system of justice which we continue to enjoy in England and Wales.

His spot centered on “comparative perspectives of civil procedure” and set the afternoon off to a good

Expert Witness

ONFERENCE - 25th SEPTEMBER 2014

Lord Brennan start after a splendid lunch. My main concern with this highly erudite academic lies with his obstinacy over any change towards an inquisitorial system but he did explain his stance to me, and to the audience.

Zuckerman made the strong point that virtually no jurisdiction in the world would abandon the accusatorial system pitting Counsel against Counsel to arrive at a decision. He did give way a bit on the new model for the Family courts, admitting to me that there are circumstances where ‘an informed preliminary view’ from the judge may set the parties on the right track towards a judgment by consent but it looks as though much of Zuckerman’s theses, especially in the notes attached to his presentation, remain the current orthodox position on retention of the accusatorial process. And of course he did contribute to both Woolf and Jackson, being influential in shaping the judicial approach to some key issues, so his views remain of the highest quality.

Hot tubbing does remain the best example of a modern approach which, whilst putting more pressure and responsibility on the judge, helps to refine the relative positions of the experts when they are both together in the box giving their concurrent evidence. Yes, it is the inquisitorial process by the back door to some, but it does work!

Sir Anthony Hooper

THE LATER AFTERNOON The final sessions which I am not dwelling on so much this time were all of a very high quality and covered much of the day-to-day concerned which experts face, including “Getting Paid Post Jackson” (always of interest to all!) with EWI Governor, Kay Linnell, John mead and Steven Green. Mediation also showed up- probably more of a statutory requirement these days unfortunately- with presentation by Frances McCarthy and Tim Wallis, sub titled ‘another string to your bow’ for that is really what mediation is to the professional.

International matters were not excluded for we heard from Dr Thomas Walford, Alan, Anderson, Carol Ludington and Phillip Mead on “Expanding your horizons- Going international” to advertise the global village we now belong to. The ever excellent Suzanne Burn together with Patrick Walsh brought up the rear with the expert guidance update and if you have not seen her notes, do so as they are of great value as a true expert. I should say that this year all the sessions were audio recorded so attendees can listen to what was said at the event to refresh the memory. It is always of use because it can be quite surprising how much one does actually miss with all the things which take place on these occasions.

The pack of papers which the EWI always produces was really first class this year and I found the slides from the PPPs a great guide through some of the heavier sections of some of the presentations.

AFTERWORD I did not attend the dinner but I understand that it, like the Conference was another great success and both the enthusiasm, good humour and sense permeated the entire day.

This is the second year I have attended the EWI and I found as in 2013 that many issues still remain to be decided as to the direction in which the Institute will go. One thing is sure: it is a Conference not to be missed by anyone who has any requirement to use or be involved with experts.

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Expert Witness

WHAT MAKES A GOOD EXPERT WITNESS? A good expert witness will add value to a case and assist the court, through their specialist knowledge. They will use their considerable experience to explain, clarify and enrich the body of evidence and opinion, to the benefit of all parties.

It’s all very well using an expert witness you know personally and can rely on, but what if they can’t complete their work to your deadline, or they don’t have the right specialism? Then you may have to instruct someone based on their reputation alone. So how do you make sure your own reputation is not damaged by a poor expert witness?

Make sure they’re a genuine expert Anyone can call themselves an expert. So check their ID, check their qualifications, and check to see if they’re registered with an independent regulatory body. It can help that some professional titles - for example “clinical psychologist” – are protected titles, whilst others – such as “consultant psychologist” – are not protected, so anyone can use them.

If applicable, also ask to see a recent DBS (criminal record) check and professional indemnity insurance.

Make sure they have the right experience Is the expert right for your case? Would a different expert be more qualified to answer the court’s questions?

A good way of checking is to follow the MoJ’s expected standards for expert witnesses in family law cases - upon which we were consulted -

that were introduced in October. As well as covering the above points, it adds that the expert must: • have recent, relevant, and documented experience of the issues of the case • keep up with recent developments in their field • know about relevant data protection and safeguarding concerns • actively seek feedback on their court work • be familiar with practice directions and regulations • clearly show where their opinion lies on the spectrum of mainstream opinion

Demand quality Will their report be concise, measured and evidence-based? Being accomplished within their discipline isn’t a guarantee that they’ll be able to write an expert witness report. Ask what checks for quality, accuracy and consistency they might carry out.

Supplied by Carter Brown

Expert Witness Profiles - 10 of the best!

Professor Patrick A Nee

Dr Sumeet Vohra GP

FRCS FRCP FCEM FFICM

Consultant in Accident & Emergency Medicine

Consultant in Occupational Health

Professor Nee has considerable experience in emergency and critical care medicine. He receives instructions in matters of personal injury and clinical negligence from claimant and defendant organisations.

He has assisted the Court as an expert witness on numerous occasions and supports other expert witnesses in the production of reports.

Trained and qualified in London at Charing Cross and Westminster Medical School.

GP in Sheffield and also Occupational Health Advisor to a number of Companies.

Consulting Rooms in Birmingham, Chesterfield, Derby, London, Manchester, Sheffield and Warrington. Medico Legal reporting on Road Traffic Accidents, trips/slips and employers liability.

Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030

Mr Philip Emm

Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030

Mr Saeed H Zaki FRCS ( Edinburgh) FRCS (Tr & Orth)

Consultant in Physiotherapist A Chartered Physiotherapist with 40 years experience working in London, Scotland and the last 25 years in private practice in Manchester. In that time has treated many 1000's of RTA and industrial injuries.

Our goals are to relieve pain and normalise range of movements and function.

Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030

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Consultant Trauma & Orthopaedic Surgeon I have extensive Medico-legal experience covering a wide range of scenarios and injuries. In Whiplash injuries my ratio of claimant to defence is about 80:20.

My special area of interest is fractures and soft tissue injuries involving both the axial and peripheral skeleton. I also deal with paediatric orthopaedic injuries and have experience as an expert witness for the courts.

Contact: susan.broadley@prestigemedicallegal.co.uk or Telephone: 0161 833 1030

Expert Witness

Doug Hall

Robert Pendleton FRICS CEnv, RICS

Quantum Expert, Forensic Accountant

Consultant in Property

Doug has specialised in forensic accounting for over 25 years, acting as quantum expert for Claimants and Defendants/Respondents in both UK and cross-border commercial disputes.

He has given evidence in the High Court, arbitrations and other tribunals and contributed to the successful resolution of disputes by negotiation and formal mediation.

Registered Valuer, has acted as an expert witness on a variety of property matters in Courts and Tribunals since the 1980’s. He specialises in providing property valuation reports including those suitable for use by the Courts and can give expert evidence related to market rents for rent review and new leases, market valuations for a wide variety of purposes and lease extension premia.

Contact: doug.hall@smith.williamson.co.uk or Telephone: +44 (0)20 7131 4048

Contact: rob@levene-surveyors.com or hkvaluations12@live.com or mobile 07722 485663

Dr Mark Powell

Matthew Halton

Pharmaceutical Analytical Chemistry

A.M.I.M.I

Dr Mark Powell is a Fellow of the Royal Society of Chemistry and a member of Council of the Society’s Analytical Division. He has over forty scientific publications and conference presentations to his name and has worked at a senior level in academia and industry for over twenty years. Mark is an expert in chromatography, spectroscopy, pharmaceutical dissolution testing and quality control. He is an experienced expert witness in pharmaceutical analysis and has worked on cases concerning patent infringement and validity, as well as representing clients during inter partes testing.

Forensic Engineering Manager at Laird Assessors I have vast experience in a wide variety of accident related subjects where an independent professional opinion is required.

I assist The Court as a single /joint expert witness on subjects ranging from Vehicle damage assessments to consistency, Low velocity impacts, version of events and exaggerated claims.

Contact: info@mpscientific.co.uk or Telephone: 0151 353 0995

Contact: matthew.halton@laird-assessors.com or Telephone: 0151 342 9961

Nik Ellis

Andrew Ryan

FIMI Eng Tech CAE AIAEA

C.A.E I.M.I A.M.I.M.I

MD & Consultant Engineer at Laird Assessors

Senior Forensics Engineer at Laird Assessors

I have submitted many forensic motor reports over the years for use in litigation purposes, provide both questions and answers for part 35 questions, produce joint reports and give oral evidence in County, Crown and Magistrates Courts.

I am regularly instructed as a Single Joint Expert. I can provide references from Legal 500 listed solicitors from both Claimant & Defendant sides.

I have submitted many forensic motor reports over the years for use in litigation purposes, provide both questions and answers for part 35 questions, produce joint reports and give oral evidence in County, Crown and Magistrates Courts.

I am regularly instructed as a Single Joint Expert. I can provide references from Legal 500 listed solicitors from both Claimant & Defendant sides.

Contact: nik.ellis@laird-assessors.com or Telephone: 0151 342 9961

Contact: andrew.ryan@laird-assessors.com or Telephone: 0151 342 9961

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Expert Witness

THE COST OF REFORM 2013 saw the implementation of major changes to the way personal injury claims are funded and sourced. It is still too early to realise the full impact of these reforms upon injured claimants, their lawyers and access to justice but the early signs show genuine cause for concern.

The full scope of the reform is too wide to rehearse here but in a wide variety of cases we have moved away from a system based upon the general proposition that successful claimants should keep all their damages and, in all but the most modest of cases, have reasonable fees and disbursements paid by the losing defendant, in favour of a one-size-fits-all fixed cost regime for road traffic, employers’ and public liability claims worth up to £25k (albeit with some exceptions) whether those cases are compromised in the newly expanded Portal system or go on to be litigated in the traditional way.

The concern is that claimants with complex or riskier cases, whose claims now fall to be dealt with under the new fixed costs regimes, are getting turned

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away by solicitors because their cases are not financially viable to run. For those that are taken on, increased pressure upon firms to reduce costs in order to stay financially viable means that work tends to be pushed down to smaller teams of the most junior fee earners thereby reducing the quality of advice, case preparation and service. This is compounded by pressure upon firms to keep work in-house rather than incur the cost of instructing counsel which, except in limited circumstances, is not recoverable from the defendant. A false economy.

Further, claimants entering “no win no fee” agreements from 1st April 2013 find that they, and not the blameworthy Defendant, must now meet success fees out of their damages. Claimants are hit and so are firms as such fees are capped

at a maximum of 25% of general damages and past loss.

The success fee cap affects the financial viability of the higher value cases involving complex arguments. Such cases are often hard fought by defendants as a result of their potential value and can mean that the risk of taking on and running such a case, funding disbursements along the way, outweighs the potential financial reward if there is a successful conclusion two or three years later. Children with complex cases, particularly those consisting predominantly of large future losses, are also affected because the litigation risks weigh heavily for firms against the prospect of diminished or no return.

Access to justice for some, but not all.

by Jamie Marriott

Expert Witness

THE QUALITY OF ANALYTICAL RESULTS? The results of chemical analysis, when admitted as evidence, often decide guilt or innocence in a criminal case, and may undermine or strengthen a claim to intellectual property in patent litigation. The personal or financial consequences of a decision based on questionable data are obviously severe.

So what are the pitfalls to look for when evaluating the quality of analytical results? Let’s consider the factors affecting data quality, from the time that the sample is taken to the moment the results are reported.

Once a sample is taken, it must be safeguarded against unintentional contamination, deliberate adulteration, or changes due to chemical instability. A chain of custody is established that tracks ownership of the sample. Any mistake in sample storage (for example, placing the sample in close proximity to potential contaminants), or the chain of custody procedure, may invalidate the test results. The type of container used to take the sample, and the sampling technique employed, may also affect data reliability.

The next part of the process is sample preparation, which may include extraction, concentration or dilution of the chemical species being determined. The sample preparation procedure must be robust and well documented in order to achieve traceability between the final results and the composition of the original sample.

The method used to test the sample must measure only the species of interest, and be free from interference by other sample components. This property of the analytical method is known as specificity. Sometimes the species being measured is present at one millionth part (or less) relative to the total amount of sample. The lower the amount of target species present, the greater the potential for interference from other components. A method’s specificity results from the selectivity of the sample extraction procedure and the test method used (e.g. titration, spectroscopy or chromatography). To complicate matters further, the specificity of chromatographic methods (where sample components are separated before being measured) also depends on the type of detector used.

Finally, once the sample has been tested, the results are calculated. The calculation must account correctly for dilution or concentration

steps, and should include an estimation of measurement uncertainty. An evaluation of measurement uncertainty takes into account the (usually small) systematic and random errors that occur during sampling, sample preparation and analysis. In cases where the question is “How much of the substance is present?” rather than “Is the substance present?”, the significance of a test result is difficult to evaluate without an estimation of this uncertainty.

The role of the analytical chemist as an expert witness is to consider all these elements of data quality and help the court to decide how much reliance to place on the test results.

by Dr Mark Powell email: info@mpscientific.co.uk

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News & Events

JUNIOR LAWYERS TO PROMOTE MAGNA CARTA The legal profession is being encouraged to use the 800th anniversary of the sealing of Magna Carta to educate young people across the country about the Charter’s historical importance and contemporary relevance.

At a special event held yesterday (29 October) at the May Fair Hotel in London, the Master of the Rolls, the Rt Hon Lord Dyson, who is Chairman of the Magna Carta Trust, launched the Junior Lawyers in Schools project as a key part of the Magna Carta 800th anniversary events.

The project is designed to connect schools with young lawyers interested in going into classrooms to talk about why Magna Carta matters and how it impacts on all our lives. The Magna Carta 800th Anniversary Committee is providing relevant materials, classroom work sheets and background papers to support the project, as well as an interface on its website where junior lawyers and schools can sign-up to support the project.

A poll conducted in 2012 by the 800th Anniversary Committee found a lack of understanding of key facts about Magna Carta among young people. It found that only 60 per cent of 18 to 24 year-olds had heard of Magna Carta, compared to 87 per cent who were aware of the US Declaration of Independence.

Magna Carta is the foundation of freedom under the law and ever since King John agreed “The Great Charter” with his Barons in 1215, its principles have influenced constitutional thinking worldwide, and have served as the foundation of freedom for almost 2 billion people in over 100 countries.

In addition to providing materials online, the Chartered Institute of Legal Executives (CILEx) has provided funding for at least 800 memory sticks to be distributed to its Fellows and other junior

solicitors and barristers. These memory sticks will be pre-loaded with ideas and activities to help classroom discussion and interaction on Magna Carta and the Rule of Law. Lord Dyson said, “We know that most young people have heard of Magna Carta, but not enough feel they know what it is really about or understand how important it still is today. The 800th anniversary is a unique opportunity to educate a new generation about Magna Carta. I particularly welcome and would encourage all of us working in the legal system to be part of this exciting initiative.”

Speaking at the launch event, CILEx President Frances Edwards said, “CILEx believes the impact of the Magna Carta should be understood and celebrated in current times and we are proud to support the Junior Lawyers in Schools programme.

We not only support the programme as lawyers, but also as educators of young people – we can speak first hand as to how important it is that young people have access to legal skills, knowledge and a fundamental understanding of the rule of law.”

Judith West, Director of Partnerships at Radisson Blu Edwardian Hotel Group, the official hotel partner to the Magna Carta 800th Committee, welcomed Lord Dyson to the launch event: “We are pleased to host this launch of the Magna Carta in schools project today as we recognise the importance of a strong heritage and values, and the significance of Magna Carta in establishing freedom under the law.

Photograph from left to right: Justin Fisher, Magna Carta 800th Committee; Frances Edwards, president of CILEx; Lord Dyson, chairman of the Magna Carta Trust; Julia Bateman, director of Global Law Summit; Daniel Steinberg, Young Barristers; Sophia Dirir, Junior Lawyers Division of the Law Society; Chris Lloyd, Magna Carta Chronicle.

The Edwardian Group has been developing leading hotels and hospitality brands since 1977, with the guiding principle of delivering a truly exceptional and memorable experience for our guests, time and time again.”

The project has been developed working closely with the Young Barrister’s Committee of the Bar Council, the Junior Law Division of the Law Society and CILEx. The Magna Carta Junior Lawyers project is one of a range of activities being promoted and co-ordinated by the Magna Carta Trust’s 800th Anniversary Commemoration Committee to help ensure everyone has the opportunity to learn more about Magna Carta.

The Committee is also producing and promoting lesson plans, videos, specially commissioned children’s books and talks, as part of its schools education programme. More details can be found at www.magnacarta800th.com/schools For further information please contact Nick WoodDow at Chelgate on 07713 681322, or Mark Gill, Executive Director of the Magna Carta 800th Committee on 07879 632870.

DX PROVIDES VITAL SUPPORT TO THE BAR’S NATIONAL PRO BONO CHARITY DX, a leading independent mail, parcels and logistics end-to-end network operator in the UK and Ireland, has helped the Bar Pro Bono Unit during the recent surge in demand for its services which saw a 51% increase in applications in 2014. The Bar Pro Bono Unit is the Bar’s national charity that matches members of the public in need of legal help with barristers who are willing to volunteer in deserving cases for those who are unable to obtain legal aid and cannot afford to pay.

The Bar Pro Bono Unit is the only charity that provides pro bono assistance nationwide in every area of law, through a network of over 3,500 barristers, from tribunals through to the Supreme Court. The charity ensures that, in each case, the barrister providing assistance is able to offer the same expertise and experience as would be expected in a paying case.

DX Exchange has been integral to the Bar’s pro bono operation for the last 18 years. DX ensures that original hard copy documents for each case are transported from the charity’s

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base in Chancery Lane to its volunteer barristers spread across England and Wales, and that they arrive on time, every time.

Kuki Taylor, Fundraising and Communications Manager at the Bar Pro Bono Unit, comments:

“We are very grateful to DX Exchange for its unwavering support and superior service, as it enables us to help those most in need of legal help.”

PAUL DOBLE, Chief Sales & Marketing

Officer at DX, adds: “The Bar Pro Bono Unit plays a hugely important role in ensuring everyone receives the legal representation that they deserve, irrespective of whether they have the funds to pay for this service.

We have been operating in the legal industry for the past 40 years and are in a unique position to provide the Bar Pro Bono Unit with the logistical support it needs to support its operations.”

News & Events

PUTTING A PRICE ON FAMILY HISTORY

WINE OF THE SEASON with Conal Gregory, Master of Wine

Homeowners could be putting family heirlooms at risk by failing to recognise their monetary value writes Nicki Whittaker, a High Value Home Specialist at NFU Mutual.

Heirlooms, such as paintings and jewellery, which have been passed down through the generations, often have great sentimental value. Unfortunately, because these items are rarely viewed in terms of their monetary value, there is a real danger that they will not be adequately insured.

A recent survey conducted by NFU Mutual highlighted a worrying tendency for homeowners to undervalue or overlook items which they had inherited. Indeed, in 90% of valuations undertaken by NFU Mutual’s valuation partners, homeowners had either undervalued items or simply had no idea of an item’s value.

The survey revealed that inherited items, such as jewellery, watches and furniture, were most commonly undervalued by homeowners, typically by 45%. The problem is exacerbated by the fact that most homeowners do not reassess the value of their home contents for decades, forgetting that the price of gold, the death of an artist or the popularity of items from certain periods can significantly affect the value of certain heirlooms.

One valuation specialist recalled sitting down in a policyholder’s kitchen for coffee at the end of a visit and spotting an interesting piece of china sitting in the cupboard with the mugs. Upon closer inspection, the item turned out to be a vase handed down from the policyholder’s great aunt and worth many thousands of pounds. Another valuation expert told of a walnut bureau that the owner thought was perhaps worth £1,000 but was actually worth closer to £40,000 and could have been worth more had it been better cared for!

Unfortunately, it is not until these items are stolen, or damaged in a major incident such as a flood or fire that a homeowner will even give a thought to their value or replacement and, by then, it is often too late.

The survey, which was undertaken to coincide with the launch NFU Mutual Bespoke, a new insurance product for high value homes, revealed a real problem with the insurance of inherited items. Part of the problem comes from the fact that, inherited items are rarely looked at in a monetary light, with artwork, for example, found to be undervalued in two-thirds of cases.

Heirlooms are often rich in family history and, therefore, it is essential that they are safeguarded for future generations. This doesn’t mean they cannot be enjoyed or even used but it does mean that they should be insured for their true financial worth and not just their sentimental value.

Without doubt Rioja is Spain’s best known wine region.

Protected from the Atlantic by the Ebro mountains, the three red grapes of Tempranillo together with a little Garnacha and Graciano yield rich wines with structure. One of the stars is Marques de Caceres, founded in 1970, whose Reserva 2009 is aged 20-22 months in French oak barrels. It shows supple elegance.

Enjoy particularly with lamb. £16.49 or £14.01 when two bottles bought (Majestic Wine).

Across from the northern Rhone town of Tournon lies the hill of Hermitage. Imagine a delicious dry white with aromas of acacia flowers, honeysuckle and apricot with a taste of white stone fruit and figs. The Marsanne and Roussanne grapes yield wines of length that will keep for a decade, if you can resist that long! A tip is to opt for the less expensive Crozes-Hermitage. A cracking example is Les Marelles from Gilles Robin. £19.75 (Lea & Sandeman).

Sponsored by NFU Mutual Bespoke, high-value home insurance tailored to protect everything you value, including art, antiques, fine wine and more.

Visit www.nfumutual.co.uk/bespoke for further information.

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News & Events

COME FLY WITH US!

by PROFESSOR SARA CHANDERS

THE CWHLS INTERNATIONAL SUB-COMMITTEE IS RECRUITING NEW MEMBERS. ARE YOU SOMEONE WHO IS INTERNATIONALLY INCLINED? DOES YOUR LEGAL PRACTICE INVOLVE CROSS BORDER COMMERCIAL TRANSACTIONS? WHATEVER YOUR INTEREST, SENIOR OR JUNIOR MEMBERS ARE ALL WELCOME.

A

ugust to October has been an exciting time for International Sub-committee members. In August CWHLS Past Presidents Jeffrey Forrest and Sara Chandler joined the Colombia Caravana 2014 international delegation to various regions of Colombia. The 4th Caravana mission, a project initiated by CWHLS 9 years ago when with the help of Peace Brigades International CWHLS members accompanied Colombian human rights lawyers to meet lawyers in the Federation of European Bar Associations. From 2008 the mission has visited Colombia every 2 years to support the human rights lawyers.

On 24th August we flew to the region of Bolivar to its capital, Cartagena, a city known for its beauty by the thousands of international tourists who flock to visit. The centre of the city within the old defensive walls, close to the old port, is a remarkable place of narrow streets, with ancient buildings, overhanging balconies, filled with flowers. In contrast the outskirts of the city are ringed with shanty towns where the residents are for the most part displaced people with little occasional or no employment. Life is a struggle,

young kids form gangs engaged in activities mostly on the verge of criminal in order to survive.

“At different life stages, some of our services are more relevant than others” Family Wealth Preservation Wealth Management Retirement Planning Protection Planning Tax Planning Mortgages

S4 Financial Ltd is an Independent Financial Advisory firm, which is authorised and regulated by the Financial Conduct Authority.

S4 Financial Ltd is entered on the FCA register (www.fsa.gov.uk/register/) under reference 401372.

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Our hosts were lawyers from the Litigants’ Circle Sixta Asprilla. They do pro bono human rights work and named their Circle after Sixta Asprilla, an Afro Colombian lawyer who was murdered in Cartagena. To launch the visit we joined the lawyers in the Church of San Pedro where we heard the priest give an impassioned speech about justice as he welcomed the Caravana delegation. The lawyers represent victims of human rights abuses from all over the region of Bolivar. It is one of the most dangerous rural areas where there are para military groups. Some of their clients are people who are attempting to regain land stolen from them. Under the Victims and Land Restitution Law some farmers are able to return to their land, however it is a difficult and not very successful process. Most shocking for us was the list of 12 lawyers who had been killed and whose cases had not been properly investigated. We met with the representatives of the Ministry of Interior and the Mayor’s office to discuss establishing lines of communication

between the lawyers, so that they can pursue these cases.

During our visit we were escorted by police to the La Ternera men’s prison outside Cartagena, where we met the Director. We learnt that prison conditions are dire, with overcrowded cells, 10 prisoners to a cell built for 4, lack of funds to provide adequate food, lack of space for workshops and education, and poor health provision. These issues were raised when we returned to Bogota and met with the relevant authorities.

At the beginning of October The Federation of European Bar Associations met in Lucca, Tuscany, another delightful ancient city. The FBE was celebrating the Autumn Congress with a working session on procedural systems in comparison, examining the need for reform in the Civil Justice systems in European member states. David Greene of Edwin Coe Solicitors spoke on the reforms in the UK to an audience of lawyers in the ancient Palazzo Ducale. The session was opened by the President of the CCBE, Aldo Bulgarelli, and there were speakers from Germany, Spain, Italy, and Poland in addition to David Greene. Problems being addressed in Europe sound familiar to us such as shortening the length of processes while maintaining quality, use of experts, oral versus paper hearings and the introduction of mediation.

Since Lucca was the home of Puccini, we were treated to a concert of Puccini, Boccherini, Bellini and Verdi, simply a delight. We worked during the day, and relaxed in Tuscan style at night. The next FBE Congress will be in Bilbao in May. Come and join us!

In addition CWHLS is partnered with the Bar Associations of Berlin and Barcelona, both beautiful cities and with some very interesting contacts among the lawyers we meet in both cities.

We would like to hear from any CWHLS member who is interested in getting involved internationally.

Please contact sarachandler.lawsociety@gmail.com

News & Events

LAW REFORM SUB-COMMITTEE Sarah, and Other Persons who may not Exist.

Discussions in the Law Reform Sub-committee are wide ranging, but have recently centred on two topics. One has been Sarah. If you do not already know her, her full name is the Social Action, Responsibility and Heroism Bill. This bill has attracted much criticism in legal circles. Indeed, Fraser Whitehead, past president of Holborn Law Society and council member of the Law Society, gave oral evidence on behalf of the Law Society to the Public Bill Committee of the House of Commons, and confirmed to them the profession’s view that the bill was ‘unamendable’ - needing so many changes that it would no longer be recognisable.

Our view, though we would not have started with Sarah, was that the law of tort should indeed recognise the special position of volunteers, who find themselves as defendants in a claim by those whom they had been trying to help. Our approach was different. We said that in such situations, easier to recognise than define, the court should have a discretionary power to apportion between claimant and defendant a proportion of the risk – the risk that the operation would go wrong and result in an injury to the claimant caused by the defendant. Unlike most submissions of that kind ours went straight to the top. The bill was in its committee stage, and we responded to the committee’s call for evidence. Our paper was circulated to the Minister and the other MPs on the committee the same day. The minister with conduct of the bill, Shailesh Vara MP, has since informed us personally that he has considered our proposal carefully, but is unwilling to amend the bill. That decision was no doubt inevitable in the light of the approach taken by the authors of the bill.

Besides Sarah, we have been considering the position of people who may or may not exist. Responding to parliamentary and public concern the Ministry of Justice has circulated proposals for an entirely new jurisdiction over the affairs of missing persons, whose families and associates are powerless to act not knowing whether the person is alive or dead. We believe we shall be able to recommend some changes to the proposals – some of them rather fundamental – that would make the new jurisdiction more principled, workable and effective.

ARTHUR WEIR

PROFESSIONAL MATTERS SUB-COMMITTEE This has been a quiet period for our sub-committee after the avalanche of major consultations papers issued by the Solicitors Regulation Authority (SRA) referred to in my July report. We did not meet in July or August. The SRA has now issued a further consultation paper “Call for Evidence: Client Protection”, which closed on 30 September and concerned the Compensation Fund and Professional Indemnity Insurance (PII). It really followed on from the debacle over the SRA’s Consultation “Proportionate regulation: changes to minimum compulsory professional indemnity cover”. I explained our concerns as to those proposals (which were widely shared) in my last report. The SRA now says it is “particularly interested in” obtaining evidence on: i) “the ways in which regulation can reduce the risk of claims arising”. Our only comment is that whilst overall regulation may reduce the risk of claims, the Compensation Fund and compulsory PII actually encouraged them. They are however important protections for clients and others who suffered from acts or defaults of solicitors. ii) “the extent to which the loss arising from claims should be apportioned between insurers, the Compensation Fund, firms and claimants”. In our view it is important that clients and others who suffered from acts or defaults of solicitors should be compensated. It is not clear why clients should bear any proportion of a loss for which they were not in any way responsible. Their claim was against the solicitor, not the solicitor’s insurers. If there was a shortfall in insurance the solicitor would have to pick up the tab, although the innocent party would lose out if the solicitor could not pay and the Compensation Fund would not come to the rescue.

Incidentally the SRA and the Legal Services Board always seem to assume that only clients may suffer from an act or default of a solicitor. We have to regularly point out that others may do so, for instance the beneficiary of a trust, a disappointed intended beneficiary of a will or the recipient or intended beneficiary of a solicitor’s undertaking. iii) “the impact of the PII Minimum Terms and Conditions”. iv) “the extent to which insurance cover should be more closely aligned to the nature of the legal services provided”. v) “the extent to which client protection arrangements are understood by consumers and are a driver of consumer behaviour”.

It is unlikely that we can add anything to our response to the previous Consultation so we are unlikely to respond to this Consultation.

JULIAN AYLMER

£216 MILLION BEREAVEMENT BILL AS FAMILIES URGED TO REVIEW LIFE INSURANCE • Up to £216m in IHT taken from life insurance policies in 2011/12 • Extra paperwork only obstacle between average saving of up to £41,000 • Up to 40% of life insurance pay-outs could be lost in tax An urgent review of life insurance policies is being called for after the figures from HM Revenue & Customs (HMRC) revealed bereaved families are being hit with unnecessary Inheritance Tax (IHT) bills totalling up to £216 million.

The latest figures from the taxman show the problem is getting worse. More than 5,200 people left their families with an IHT bill on their life insurance pay-out in the 2011/12 tax year, up by around 5% in two years and averaging £41,000.

Sean McCann, chartered financial planner at NFU Mutual, said: “This is completely unnecessary and should not be happening.

“Life insurance policies should, wherever possible, be written into a trust to prevent a significant chunk going to the taxman.

Otherwise, up to 40 per cent of the pay-out could be claimed by the taxman when it could be going to bereaved families instead.

“Writing a policy into trust also has the benefit of speed of payment. When a policy has been written into trust, payment can reach the family bank account within three to four weeks. If it had to go through probate instead, it could delay payment for several months.

“Even if you don’t think you have an IHT problem, the speed of pay-out from a policy in trust should be an incentive to review your policy.

“Often, this money is vital to keeping the family business running, or means surviving families can make ends meet – whether it’s to replace lost income or to pay for extra childcare while the surviving parent goes out to work. ”Trusts are really simple to set up and, with most life insurance companies providing the forms free of charge, it shouldn’t cost anything other than spending a few more minutes to complete.

“However, HM Revenue & Customs’ figures show around 75,000 people left behind a life insurance policy in 2011/12 which wasn’t written into a trust. That’s 75,000 families who could have been made worse off from an IHT bill or slow payment.”

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News & Events

TRIBUNAL PRACTICE AND PROCEDURE Tribunals under the Tribunals, Courts and Enforcement Act 2007 3rd edition

by EDWARD JACOBS Legal Action Group ISBN: 978 1 90840 745 0 www.lag.org.uk THE DETAILED AND DEFINITIVE GUIDE TO TRIBUNAL PRACTICE AND PROCEDURE – NOW IN A NEW THIRD EDITION An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

As Lord Justice Sullivan, Senior President of Tribunals has pointed out, ‘A legal system which is having to cope with large numbers of litigants in person has much to learn from the practice and procedure adopted by tribunals, as described in this work.’

This new third edition incorporates the changes that have occurred since the publication of the previous edition three and a half years ago including, of course, the continuing expansion of the tribunal system.

The LAG - Legal Action Group - do have a noble tradition of commissioning and publishing legal texts that are scholarly, authoritative yet actually readable. Noted for their plain English and practical approach, they are accessible not only to practitioners but to members of the general public as a source of legal advice, whether or not a decision is made to brief counsel.

The author, Edward Jacobs, one of the founding judges of the Upper Tribunal assigned to the Administrative Appeals Chamber, reminds us, for example, that the expanded tribunal system has absorbed more tribunals by creating a Property Chamber in the First-Tier Tribunal with appeals to the Lands Chamber of the Upper Tribunal. This is only one of the changes that have recently taken place, including, notably, new rights of appeal.

This latest LAG title on tribunal practice and procedure is a particularly useful and certainly practical guide for anyone contemplating involvement in the work of tribunals, whether appearing before tribunals, or advising those who do.

Detailed, thorough and logically structured, the book commences with an introduction to the tribunal system, followed by fourteen chapters covering all pertinent areas from jurisdiction, procedure and appeals to decision and post

decision issues. In particular, Chapter 7 on proceedings, including case management, time limits and costs is especially helpful. (Note especially the comments on delays).

The book also excels as a work of reference with its copious footnotes, three appendices, a helpful index and almost 60 pages containing tables of cases, statutes, statutory instruments and European legislation. From tribunal judges, panel members and practitioners, to those appearing as litigants in person before a tribunal, this book should be considered an essential purchase.

The author states that the text is up to date as of late September 2014. However, the references to the rules of procedure

Professional Indemnity Insurance renewal 2014 - Has the storm passed?

FOR THE PAST FEW YEARS THE MEDIA COMMENTARY ON PROFESSIONAL INDEMNITY INSURANCE (PII) FOR SOLICITORS HAS OFTEN BEEN SUPPORTED BY IMAGERY OF APPROACHING STORMS AND FLOATING MINES WHEN DISCUSSING THE ISSUE OF UNRATED INSURERS (THE LAW SOCIETY’S PI MATTERS 2013). FOR MANY OF THOSE THAT RENEWED ON THE 1ST OCTOBER 2014, HOWEVER, THE EXPERIENCE HAS BEEN SOMEWHAT BETTER THAN EXPECTED. Out of recent survey of 600 law firm managing partners by law firm O’Connors LLP, 47% of respondents stated that their renewal premium went down, half of those by a significant amount, whilst 29% saw a slight increase and only 10% saw a large hike. The slight increases were stated to be due to increases in fee income rather than hardening of rates. Meanwhile, 11% of respondents said they were able to move away from unrated insurers to A-Rated insurers at the same premium. The report also stated that Willis advised more firms than any other individual broker (17.5%).

After reviewing those firms that Willis assisted for the first time, it was clear that many brokers approach the renewal process in different ways.

From our reviews there were often insurers that could have been a more appropriate fit or a structural option that better suited the firm.

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Professional Indemnity insurance will always be a significant overhead for law firms, and with an increasing number of firms now renewing in March/April, it is important that they benchmark their risk profile and insurance against similar firms, thereby ensuring they obtain the benefit of any opportunities that are available.

As a risk advisor to an increasing number of the Top 200 law firms, Willis’s role involves supply chain risk management, ensuring the long term supply of affordable PII and informing clients of the opportunities and threats in a timely fashion in order to allow them to plan, budget and manage their firms accordingly.

It hasn’t been all plain sailing for those renewing on the 1st October 2014. As stated above, 10% of respondents saw a significant increase and for some this was unexpected.

There are a number of insurers that have paid and/or reserved considerable sums against the claims that have come from the recession and they are looking to recover these losses through increased rates.

Whether you are in the Extended Indemnity Period or approaching renewal in the New Year, comprehensive, expert advice can be the difference between not only avoiding the storm, but seeing a prolonged settled and sunny period in calm waters.

by COLIN S. TAYLOR CIRM Executive Director, Legal Service Practice Group, Willis

News & Events

'COMMON LAW LAWYERS AND THEIR INFLUENCE ON EU LAW' His Honour Justice Vassilios Skouris, President of the European Court of Justice, visited The Dickson Poon School of Law on 1 October to deliver the Centre of European Law Annual Lecture. The lecture marked the 40th anniversary of the Centre of European Law and was chaired by the Rt Hon Lord Mance PC. The Rt Hon Lord Douro, Chair of College Council, opened the event.

President Skouris observed that the relationship between the common law tradition, the civil law tradition, and European Union law is a circular one. Relying on the words of Lord Neuberger, he considered that this relationship is one of cross-fertilisation, and advised to look at European law as a synthesis of several legal traditions.

In his carefully worded speech, the President showed how the common law tradition contributed to the development of EU law as a result of three important elements: the preliminary rulings sent by the common law courts, the art of advocacy, and the notion of precedent. In particular, the President praised the high quality of the preliminary references sent by the English courts, and appreciated the fact that UK judges are using this procedure as a tool to enhance fundamental rights protection. Judges enter in a true dialogue with the Court of Justice of the European Union, and the obligations stemming from European judgments are sincerely carried out by the UK.

(L-R) Professor Takis Tridimas and Professor Andrea Biondi (Directors of the Centre of European Law); Professor Evelyn Welch (Vice Principal Arts & Sciences); Vassilios Skouris, President of The European Court of Justice; Lord Douro, Chairman of the College Council;Dr Oana Stefan, Senior Lecturer in the Centre of European Law.

Justice Skouris warned against the danger of evaluating the Court of Justice of the European Union by reference to experiences with a particular national judiciary. He addressed several concerns that common lawyers have in relation with the procedures and practice of the EU Courts. Among others, the President explained that the judgments issued by the EU Courts have their own concise style, as they need to be understood by judges coming from 28 different legal traditions in order to ensure the uniform application of EU law. He also pointed out that the lack of dissenting opinions entices the majority to seriously consider the concerns of the minority during Court deliberations.

The president concluded by observing that the common law ideal of a perfectly simple legal order has not yet been realised at the EU level; however the vital and ongoing contribution of the common law tradition to the development of European Union law should never be underestimated.

THE CENTRE OF EUROPEAN LAW AT 40 The Centre of European Law was established on 1 October 1974 when the EU had just nine members. One of the first professors of European Law in the country, Professor Alexandros Chloros, was appointed as its inaugural Director. Professor Choloros left King’s in 1981 to become the first Greek judge in the European Court, following Greece’s entry into the EU. His successor was Professor Sir Francis Jacobs who combined his academic career with practice as an eminent barrister in European Law – he directed the Centre until 1988 when he was also appointed to the European Court of Justice as Advocate General. Sir Francis still plays an active role as the Centre’s President.

The Centre continues to be at the vanguard of developments in European Law and maintains its reputation as a trusted source of intelligence in European Law. Future plans include the expansion of the distance learning programmes, research funding initiates and a continuous programme of lectures and workshops, which attract an audience of practising lawyers, judges and scholars.

The current Centre of European Law Directors are Professor Andrea Biondi and Professor TakisTridimas.

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Property

STAGES OF THE COMMERCIAL CONVEYANCING PROCESS

by SARAH POTTER Pitmans Solicitors

The commercial conveyancing process will come as second nature to many readers. This article is designed to serve as a reminder to those already working in commercial conveyancing and a brief overview to practitioners in other areas of law.

WHO IS THE CLIENT? It should be ascertained at the outset who the client is, bearing in mind that the ultimate beneficial owner may not be the contracting entity. The parties may change during the course of the transaction (for example a new company may be set up for the purpose of acquiring the property) and due diligence needs to be updated as necessary.

REVIEW HEADS OF TERMS Heads of terms should be carefully reviewed and instructions must be obtained when there is any ambiguity.

DEDUCTION AND INVESTIGATION OF TITLE It is usual for the seller’s solicitor to deduce title to the buyer’s solicitor, who must build a picture of the property, including its physical nature and any adverse

matters affecting it. This will typically involve the buyer’s solicitor doing the following: • reviewing all title documents; • conducting searches: standard searches include searches of Land Registry, the local authority, water and drainage providers, highways and environmental authorities.

Other searches may be required depending on the location of the property, such as HS2, London Underground or Flood; • requesting replies to Commercial Property Standard Enquiries – there are several different sets of enquiries depending on the nature of the property. Additional enquiries should be raised as appropriate; • reviewing the buyer’s survey and valuations; and • in some cases a site visit will be appropriate.

In larger transactions the seller’s solicitor may produce a certificate of title for the buyer and their lender. This is a set of factual statements about the property upon which the buyer relies and which is backed up by a series of representations and warranties.

Where the buyer is obtaining finance for the acquisition, the bank also needs to satisfy itself as to title to ensure that it will obtain adequate security over the property. Lender’s will often have their own solicitor to investigate title who will either review and negotiate a certificate of title prepared by the seller’s solicitors or who will prepare its own report on title. Both processes inevitably have an impact on timing so it should be ascertained at the outset of the transaction whether funding is required.

The seller’s solicitor prepares the contract. This may be conditional on matters such as: • obtaining planning for the buyer’s proposed use of or works to the property; • the seller obtaining vacant possession of the property; or • (in the case of a leasehold property) obtaining landlord’s consent to the transfer.

A transfer deed will also be required. If the seller is retaining some of the land there will usually be covenants in the deed to protect the seller’s use and enjoyment of the retained land. Care should be taken when drafting the transfer and specific instructions received from the client.

Depending on the nature of the property, other documents may also be required such as:

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• deed of assignment of rent deposits/arrears (in the case of multi-let properties); • rent authority letters to tenants informing them of the change of landlord; and • letters of reliance addressed to the buyer in respect of reports which the seller has the benefit of.

The form of these documents should be agreed and attached to the sale contract prior to exchange.

EXCHANGE AND COMPLETION At exchange the transaction becomes legally binding.

A deposit is paid by the buyer (typically 10%). Prior to exchange the buyer’s solicitor should conduct a bankruptcy/company search of the seller to ensure that it has legal capacity to enter into the contract.

Prior to completion, the buyer’s solicitor should do the following: • raise pre-completion requisitions with the seller’s solicitor;

FINANCE

TRANSACTIONAL DOCUMENTS

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• warranties – in the case of new build properties, warranties should be granted directly to the buyer by all contractors. Any existing warranties should be assigned to the buyer (and lender);

• carry out a priority search at the Land Registry to ensure that the title to the property has not changed during the course of the transaction. The search result effectively “freezes” the title for 6 weeks in favour of the buyer (“the priority period”); • agree a completion statement with the seller’s solicitor – any income from tenants will need to be apportioned between the buyer and seller; • liaise with any lender to ensure that funds will be available at completion; and • agree undertakings with the seller’s solicitor to deal with completion matters such as obtaining appropriate discharge documents from any existing lender.

The seller’s solicitor should liaise with any existing lender to obtain a redemption figure.

The timing of completion is often critical, especially if the property is subject to an existing charge. The seller will need to ensure that funds are received from the buyer in time to transfer them to the lender in order to discharge the charge on the completion date. The completion time is stated in the contract (typically between 1-2pm). If funds are received by the seller after this time but still during banking hours, completion is deemed to take place on the next working day. The buyer will be liable to pay interest on the purchase price (less any deposit paid) at the rate specified in the contract.

POST COMPLETION The buyer’s solicitor must do the following: • pay any Stamp Duty Land Tax (SDLT) due and submit the SDLT return within 30 days of completion. There are penalties for late filing/payment; • submit the necessary Land Registry application within the relevant priority period; and • if the property is leasehold, comply with registration requirements in the lease.

There may be additional post completion/notification requirements depending on the nature of the property.

Property

INSURANCE - The Commercial Benefit In association with ANDREA GLOVER, Managing Director at PSG Financial Services LTD, explains why moving on-line for Title Insurance streamlines conveyancer processes.

With 1 in 5 residential transactions requiring some form of Title Insurance, it was a logical progression of PSG’s one stop shop philosophy to expand its portfolio into Insurance.

Title Insurance largely acts as a transactional warranty, enabling transactions to proceed swiftly and cost effectively, improving workflows and profitability of firms without compromising the quality of the service and level of protection provided to clients.

Any potential title related issue identified can easily double the hours a fee earner may spend on a case and therefore reduce a firm’s profitability. Using title insurance (where appropriate) at an early stage of identifying a transactional issue, will not only increase efficiency by saving you time but also help to reduce the likelihood of the transaction failing to complete.

Spending weeks corresponding with a Local Authority on a minor building control contravention could prove costly, threaten a transaction and lead to an expensive policy being necessary. It may well be that consideration of the likely outcome based on professional experience could bi-pass this and

for less than £20.00 the issue could be dealt with and the transaction progressed to everyone’s satisfaction.

STREAMLINING PROCESSES AND SUPPORTING COMPLIANCE The ability to produce a draft policy electronically and forward to the relevant parties in a matter of a couple of minutes is clearly an improvement on using the old selfissue books. When ready you can put policies “On Risk” in a matter of seconds and have a full audit trail that can be made available to compliance offices and senior managers within firms.

Working in as few IT environments as possible saves further time reducing multiple logins to systems.

providers of conveyancing searches, combining personal service with hi-tech, yet simple to use systems. To compliment this the financial services division launched its integrated range of Title Insurance policies last year. The Conveysure® suite of policies provided by Conveyancing Liability Solutions Ltd, provides best in class cover at competitive prices.

PSG Financial Services supports its clients offline too with quick and direct access to expert underwriters where a bespoke policy is required.

For more information on products and services from PSG: Email: chandrasharma@propertysearchgroup.co.uk Visit: www.psgconnect.co.uk/londoncentral or Telephone: 0800 458 9967

PSG is trusted by over 2000 firms and is well known as one of the top three leading

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Professional Practice

UNDERSTANDING CHALLENGES IN CONVEYANCING LAWYERS AND CONVEYANCERS ARE CONSTANTLY PRESENTED WITH CHALLENGES. IN ORDER TO DELIVER ON ITS PROPOSITION TO MAKE LAWYERS’ LIVES EASIER, SEARCHFLOW IS COMMITTED TO OPEN COMMUNICATION BETWEEN LAWYERS AND THE BUSINESS TO FULLY APPRECIATE THE CHALLENGES AND TO PREPARE FOR FORTHCOMING ISSUES, AND THEREBY FIND APPROPRIATE SOLUTIONS. SearchFlow’s quarterly Conveyancer Sentiment Survey, for example, was designed to investigate market performance, identifying the highs and lows, as well as gain insight into topical developments (such as MMR and lender panels).

The most recent findings from quarter three suggest conveyancers believe the market is levelling out. Just 16% of conveyancers experienced growth of over 25% in the third quarter, compared with 41% in the previous period.

Furthermore 43% of those surveyed saw growth of over 10% - more evidence that the property market is steadying; while 20% of conveyancers have said growth has stayed the same. This supports HMRC’s figures for property transactions in August, where a 1.7% decrease from July suggested a re-balancing of the UK property market.

Market stabilisation is helping to drive coneyancers’ confidence and many aim to grow their teams. In fact, nearly a third (31%) said they were “very likely” to increase their headcount in the next quarter, up 10% from 21% in the previous period and from just 11% at the beginning of the year.

“We welcome the signs of the market settling following two consecutive quarters of incredible growth,” said John Pickford, Managing Director at SearchFlow. “It’s this sustainable growth that is boosting confidence, enabling conveyancers to grow their teams, review resources and ensure they stay as commercially effective as possible and leverage the market.”

Being able to understand and recognise market performance is essential for SearchFlow to comprehend lawyers’ needs. And it’s just as important to be aware of their concerns.

Quarter three’s Conveyancer Sentiment Survey also explored the impact of lender panels on conveyancers’ business. 50% cited this as their major cause for concern for the second half of 2014. Access to panels, the requirement to provide duplicated information and ability to communicate to lenders are all seen as stifling growth.

Lender panel impact is further evident when examining solicitors’ income; panel instructions accounted for just 9% of business revenue for solicitors (up from 6% in the last two quarters).

Direct business continued to account for the lion’s share of revenue at 65% in the third quarter.

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It’s also clear that conveyancers are concerned with more than just business and instructions. At this year’s SearchFlow sponsored Property Forum Dinner (a platform for those in the property transaction market to pose questions and debate topics to a panel of industry experts) a number of additional issues were raised.

Top of the agenda was the role the Land Registry will play as the sole provider of official search results and concerns about the impact that will have with the Local Land Charges (LLC) in England and Wales. According to attendees, these changes have created uncertainty with many experienced members of staff leaving the organisation.

The event also featured questions relating to data input and inefficiencies in the conveyancing process. Panel experts recognised the need to improve service and processes and urged greater use of available technologies for a more efficient and digitised process.

It is lines of communication like the Property Forum Dinner that are so important for SearchFlow. They act as a window into the market, creating insight which can be shared across the industry while providing an opportunity to find solutions, whether that’s calling for more

clarity on the effects of the Land Registry changes or offering technological solutions.

“Service is an industry-wide challenge,” said John Pickford. “Transaction processes are poorly perceived by both buyers and sellers for a number of reasons. What’s clear is that we talk a lot about the issues, but now is the time to take action. All those involved in the property transaction market have a part to play.”

“Consumers use technology more readily and expertly, and have higher expectations of how it is applied, so this could be part of the solution,” he added. “There is evidence to suggest that conveyancers are also showing an appetite to do business online and there is certainly room to make better use of technology in the property market. SearchFlow has a role to play and we know there is more we can all do to ensure conveyancers and clients feel the benefit.”

Looking forward to 2015, it promises to be another challenging yet rewarding year for the industry. Changes to CON29, the end of the grant for contaminated land clean-up and ongoing concerns about Land Registry changes, these and other issues will continue to feature highly on SearchFlow’s radar.

Professional Practice

The Law Society's conveyancing portal, Veyo - a joint venture with global technology company Mastek UK - is set to revolutionise the home buying process. Unveiled to the law and conveyancing community last month, and in the final stages of development, it is scheduled to launch officially in Spring 2015.

In this article, Elliott Vigar - head of commercial investments at the Law Society and CEO of Veyo - tells us how plans are progressing, ahead of the launch next year, and what the conveyancing market can look to expect during the first phase of the launch.

There has been a lot of talk about the Law Society's plans to create a new portal for conveyancing for many years now.

Today, I am pleased to unveil ‘Veyo’ a portal which uniquely brings together all the processes, checks and documentation prepared and undertaken by solicitors and licensed conveyancers in the sale and purchase of residential properties.

In its first phase, the system will allow professionals to better communicate with each other, clients and other parties, satisfy due diligence obligations more quickly and facilitate the conveyance of residential property through established protocols. In doing so, it will not only speed up the house-buying process for consumers, but enable greater efficiency for conveyancers.

Key benefits to conveyancers • Veyo saves time by streamlining businesses processes • Veyo is secure, providing a clear audit trail of communications between all parties in a transaction • Veyo offers transparency at every stage of the conveyancing process providing all parties with up to the minute information on a transaction • Veyo enables clearer communication with customers • Veyo is the smart way to service clients, providing a secure area to upload and documents • Veyo has been designed by conveyancers for conveyancers

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How Veyo will work Users are presented with a dashboard that will show all active cases and their respective status. Each case will have a dedicated screen showing a detailed overview of progress towards completion.

A calendar will show scheduled tasks, key dates and reminders. Other pages offer complete visibility of the sales chain, by providing users with an overview of all their transactions, messages and activities to help keep all cases on track.

The online ‘deal room’ for any particular case will allow the two firms acting for the buyer and seller to collaborate and progress documents efficiently, with an automatic audit of all changes, versions and approvals captured for each case.

The ‘chain view’ will show the exchange / completion status of each property in the chain online.

Veyo users can verify individuals working on the other side of the transactions who must have pre-qualified to be able to use the portal. It will also be possible to carry out anti-money laundering checks with Veyo. Land Registry applications will be available from the launch date, with the integration of searches and HMRC transactions within Veyo also planned for subsequent service releases after the initial launch.

About the development of Veyo and security The Law Society chose to invest in a joint venture company in order to build the longstanding relationship necessary to deliver an IT platform of such size and complexity, as well as to ensure that our stringent requirements for resilience and security were met.

Following in-depth consultations with all parties involved in residential property conveyancing, the end result is a portal that is intuitive to all parties, including all the key features needed to effectively speed up and streamline the conveyancing process, within a secure and trusted community.

Veyo will allow conveyancers to communicate and exchange information seamlessly with each other, their clients and other key stakeholders. It will also provide a level playing field for smaller firms competing with larger, more technologically-enabled firms. The portal will put solicitors and conveyancers at the core of what we aim to become - the ubiquitous process for buying and selling residential property in England and Wales.

Who will Veyo be available to?

Veyo will be open to all conveyancing professionals – both in firms with and without Conveyancing Quality Scheme (CQS) accreditation, as well as licensed conveyancers – who must all meet an equivalent standard for entry. It is proposed that the standard will at least equal the level of scrutiny required for CQS accreditation; we see the portal as the next stage of the CQS concept, taking it from a way of denoting a firm's quality, to a way of spreading that quality standard across the profession and the conveyancing process. The portal will only be a success if all conveyancing professionals have access to it, trust the community within it, and can enjoy the benefits that it will bring to them and their clients.

If you want to know more...

Our partner, Mastek UK, brings with it the pedigree and talent of a global IT solutions company, and significant experience of handling highly sensitive client data. Security and data protection have been priorities for us in the technical design and will be subject to rigorous testing prior to launch.

• Register for interest on the Veyo website: veyo.co.uk, where you will receive regular updates about the new portal and have the opportunity to trial the system before it launches in Spring 2015.

Professional Practice

Exhibition of Supreme Court drawings With open justice as its aim, the Supreme Court welcomes and educates the public, provides a wealth of explanatory material and has even won a deservedly high rating on TripAdvisor - but how does the uninitiated visitor interpret the coded theatre of the hearings? And how does the iconic building impose itself on proceedings?

A new exhibition of drawings of the Supreme Court, on display in the City, gives you the layman’s view from the public seats. Isobel Williams occasionally draws in situ, with the court’s permission, and records her impressions on the illustrated blogs http://isobelwilliams.blogspot.co.uk and http://ukscblog.com. She is free to express herself in an idiosyncratic way, as long as she does not use materials which would risk damaging the spectacular carpet designed by Sir Peter Blake. ‘It also helps that I don’t take up much room,’ says the UK size 10 artist.

A selection of her original drawings is displayed inside the ground-floor entrance of Pinsent Masons LLP, 30 Crown Place, Earl Street, London EC2A 4ES, from 14 November until the end of the year, as part of the firm’s continuing policy of engaging with artists. Please email izzybody@gmail.com for more information.

by Isobel Williams

IS YOUR CLIENTS ‘ENTREPRENEURS’ RELIEF AT RISK A successful business is one that grows. While there may be periods when all of a business’s assets are required for trading activities, there may be times, often later in the life cycle of a business, when a business holds surplus cash.

As well as being unattractive for businesses due to low interest rates, holding surplus cash and non-trading assets may also present problems around taxation. Where a company is sitting on a high level of cash HMRC could restrict the amount of assets on which BPR is available to a shareholder upon their death, meaning that there could be a significant inheritance tax charge for the estate or beneficiaries to meet. HMRC may also deny a shareholder Entrepreneurs’ Relief when they come to sell their shares. This means that capital gains tax could be payable at the full rate (currently 28%).

THE PROBLEM Alice, 56, owns her successful chain of florists in the South-West worth around £2 million. Some years ago she took her business online allowing her to expand significantly and since then she has built up considerable cash, of around £700,000, within the business. Following approaches from two national firms, she is planning to sell her company.

Her accountant has informed her that she will be liable to pay CGT on the proceeds and that, as she holds more than 20% cash in the business, this is likely to be at the 28% rate rather than the 10% rate, which would be available through Entrepreneurs’ Relief. Since 6th April 2011 the maximum lifetime limits on Entrepreneurs Relief is at a tax rate of 10% on the first £10 million.

POTENTIAL SOLUTION

HMRC should accept that full Entrepreneurs’ Relief is available, so that Alice’s CGT rate is reduced to only 10%.

SUMMARY When clients are thinking of selling their business it is essential for them to plan ahead and ensure they do not fall foul of something as simple as holding too much cash and jeopardising the availability of Entrepreneurs Relief and BPR. Forward planning offers time to make simple changes that can help ensure the most financially beneficial outcome.

This case study is provided for illustration purposes only and based on our understanding of current legislation.

The value of investments can fall as well as rise. BPR Solutions can be high risk and you can lose some or all of your money.

Following advice, her business decides to commit £400,000 to a BPR solution which is specifically designed for business owners. This is deployed in qualifying trading activities.

This article is intended for qualified lawyers and solicitors and is not to be distributed to retail clients.

When Alice eventually decides to sell her business at least one year later, it has over 80% of the trading value of Fantastic Flowers in qualifying business assets.

by STEVEN VALLERY, Business Development Director S4 Financial Ltd. Contact: 0127634932

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Professional Practice

APPLICATIONS INVITED FOR INTERNATIONAL STUDY FUNDING QUALIFIED AND TRAINEE LAWYERS ARE BEING INVITED TO APPLY FOR SUBSTANTIAL FUNDING TO SUPPORT THEM THROUGH THEIR INTERNATIONAL STUDY. The HM Hubbard Trust is inviting applications from lawyers who wish to study the law of Canada, Spain or France in those countries.

The Trust provides Scholarships of up to £27,000 for a year’s Masters level course.

enable me to embark on a programme that would have been otherwise out of my reach, it has given me the confidence to pursue my career in a way that I had not previously thought possible.”

The Trust was established by the will of the London based solicitor, Henry Malcolm Hubbard, who had substantial business interests in Canada, Spain and Latin America.

It is believed that he worked in Barcelona and was instrumental in bringing electricity to that part of Spain.

Since completing her studies Rachel has set up her own firm, Roche Legal, using many of the skills and contacts that she acquired whilst studying abroad.

Those who have been supported by the Trust include Rachel Roche. Commenting on the support the Trust provided she said: “The HM Hubbard Law Scholarship has, without a doubt, been a turning point in my career. Not only did the financial assistance

Rachel Commented further: “Studying abroad has changed my perception of many things, and helped me to grow both academically and personally. I would encourage anyone who thinks that they would benefit from this opportunity to apply. I learnt a huge amount of law on my chosen Masters’ programme of course, but also learnt a lot about myself. It has certainly

opened my eyes to what is possible if you grab opportunities when they arise.”

Further information on the Trust and the application process can be found at the Trust web site: www.hubbardlawscholarship.com.

Application forms are also available from the site.

The application closing date is 30th November with short-listed applicants being asked to meet with the Trustees in midDecember.

For further information contact Vince Cheshire at TMF-Group.

T: 01582 439200 E: Vince.Cheshire@TMF-Group.com

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Legacies

LEAVING A LEGACY TO CHARITY Including a gift to charity in a will is a great way to make a difference and there are also tax benefits.

Legacies are an important source of income for many charities and the voluntary sector received around £2billion in legacy income in 2011/121.

However, this is only 5% of total income and the number of people who leave legacies to charity may be only 7%2.

Solicitors and other will writers can play a role in changing this. A study carried out by the Cabinet Office Behavioural Insights Team, published in 2013, found that when will writers mentioned the possibility of a leaving a legacy to charity, the percentage who did this rose from 4.9% to 10.8%, and that this increased to 15.4% when people were asked if there are any causes they are passionate about3. This suggests that asking people at the right moment whether they want to leave a legacy is important and so is the way in which the question is asked.

Types of gift A cash gift, or pecuniary legacy, is a straightforward option. But the effects of inflation could mean the ultimate value becomes less than intended. This problem can be dealt with by updating a will regularly, or linking the cash legacy with inflation.

Another possibility is a gift of individual possessions, known as a specific legacy. This might

be property, shares or land or other things. It’s worth providing for what happens if the possession is sold during the client’s lifetime.

If a client would like a charity to benefit more significantly, an alternative option might be a residuary legacy. This involves giving a proportion of an estate to charity after expenses and any pecuniary and specific legacies have been paid.

Drafting the will It’s important that a charity is properly identified in the drafting of the legacy and its full name, address and registration number should be included. This information is available from the Charity Commission for charities in England and Wales, the Office of the Scottish Charity Regulator for Scottish charities and the Charity Commission for Northern Ireland for Northern Irish charities.

Many charities have a section on their website with template wording for legacies.

A legacy can be given for specific activities of the charity, subject to an expression of wishes or binding obligations. The risk of including a binding obligation is that the legacy could fail if the charity isn’t able to use the legacy for the purpose. A letter setting out the client’s wishes provides more flexibility and is often a better option. The trustees of the charity should take the wishes into account, but are not bound legally to follow them.

You should also consider what happens if the charity beneficiary ceases to exist.

If this is the result of a ‘relevant charity merger’ under the Charities Act 2011, and the merger is entered in the Charity Commission’s register of charity mergers, the legacy will usually take effect as a gift to the successor charity. However, a legacy may fail if the wording provides that the charity must be in existence at the date of the testator’s death.

If a legacy intended for a charity fails, the property will become part of the deceased’s residuary estate.

Tax benefits There is no Inheritance Tax (IHT) on gifts under a will to charities or community amateur sports clubs (CASCs). Legacies to overseas charities are not exempt from IHT. But gifts to an organisation within the EU do now qualify, if the organisation would qualify for charitable status if it was based in the UK. The value of a gift to a charity or CASC will be deducted from the estate before IHT is calculated. In

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Rebecca Fisher and Chris Rowse are both at RussellCooke solicitors. Rebecca is a Partner in the Private Client Team and Chris is a Senior Associate in the Charities and Social Business Team. some cases this may bring the total estate value below the taxable threshold, which is £325,000 for 2014/15.

Where an individual leaves more than 10% of his or her net taxable estate to charity, the estate will benefit from a 36% rate of IHT, which is a 10% reduction from the usual rate of 40%.

Charities are not liable to capital gains tax (CGT). If the executors sell assets a CGT liability may arise against the executors. This can be avoided by appropriating the assets to a beneficiary charity as the executors will then sell as bare trustees. If the asset is land it will be necessary to comply with provisions in the Charities Act 2011 concerning the disposal of charity land.

Final tip It’s a good idea to encourage clients to let a charity know that they should benefit from a legacy under a will, as this helps charities to plan ahead.

Rebecca Fisher and Chris Rowse are both at RussellCooke solicitors. Rebecca is a Partner in the Private Client Team and Chris is a Senior Associate in the Charities and Social Business Team.

August 2014

Footnotes 1

2

3

The UK Civil Society Almanac 2014, NCVO (http://data.ncvo.org.uk/a/almanac14/ how-much-does-the-voluntary-sectorreceive-in-legacy-income-2) Remember a Charity ‘Why Leave a Gift in Your Will’ (http://www.rememberacharity.org.uk/why -leave-a-gift) ‘Applying behavioural insights to charitable giving’ (28 May 2013), Cabinet Office

Legacies

A LEGACY THAT LASTS FOREVER YOU KNOW BETTER THAN MOST THAT CLIENTS HAVE ALL KINDS OF REASONS FOR REMEMBERING A CHARITY IN THEIR WILL. ONE OF THE MOST IMPORTANT IS THE DESIRE TO PASS ON THE THINGS THEY CARE ABOUT TO THE NEXT GENERATION - THEIR CHILDREN AND GRANDCHILDREN. THEY WANT TO KNOW THEIR GIFT WILL LAST AND STILL MEAN SOMETHING YEARS FROM NOW. Houses like Knole in Sevenoaks, vast areas of the Lake District, even the White Cliffs of Dover – have all been supported by gifts left in wills.

Every time someone leaves a gift to the National Trust in their will, they’re playing a direct part in helping to look after special places for future generations to enjoy. We’re a charity, not funded by the government, so we depend on memberships and donations, especially gifts in wills, to keep 350 historic houses and gardens, and miles and miles of glorious countryside and coastline in England, Wales and Northern Ireland open for everyone to enjoy.

Protecting the places they love.

Your client may have a favourite National Trust place they want to protect, such as a stretch of coastline, a woodland, garden or historic home that is close to their hearts.

They can specifically request that their legacy

goes towards looking after their special place. Or, they can decide to give their legacy to the National Trust to spend wherever the need is greatest.

they wish. And by leaving a gift to the National Trust, they’ll be playing a vital part in making sure the places they’ve loved and enjoyed live on for ever, for everyone.

You can trust us to honour your client’s wishes.

We only ever spend legacy income directly on projects or conservation work, which means that every penny of your client’s legacy will be spent exactly where and as

There are also other ways of supporting our work, such as tax effective charitable trusts and foundations – please get in touch if you would like to find out more.

Solicitors like you have helped clients remember the National Trust in their wills and secured the future for places like the White Cliffs of Dover.

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Legacies

NOTCHED UP AND HOMEMADE - DIY COULD ENDANGER A LEGACY There’s around 15.5 million invalid or poor quality Wills in the UK. That racks up to an astonishing 70% of all Wills written, which could mean hundreds of thousands of intestacy cases where beneficiaries are missing, or estates thought to be destined to a friend find their way to distant family.

These statistics revealed by the 2013 Will Aid survey highlight the growing danger of homemade Wills, often resulting in invalidity due to inadequate witnesses. The research discovered around three million have a Will that’s either homemade or assembled from a DIY kit, and a further 12.5 million whose say in the future of their estate may be out of date. In fact, there’s almost 28 million adults – that’s over half of the population – who have yet to even write one.

– who was also appointed the sole executor of her estate and ultimately one of two heirs. Not only did this invalidate the Will, but the family’s barrister told the court that Helena had gone into a “catastrophic mental decline” after losing her husband and brother within a year, and so was also invalid as it was ruled she could not have known or approved it. Her legacy was therefore treated with the rules of intestacy, and passed across to her next-of-kin. Shelley and Steven Kimms did not see a penny.

With so many knowing in their minds where they would like their estate to travel after they pass on, but without having committed that destination to paper, loved ones can lose out.

Locating missing beneficiaries is at the heart of our business, but alongside this we can conduct Asset and Will searches, as well as provide Missing Will and Missing Beneficiary Insurance to cover all eventualities. With over 90 years of experience, our expertise and access to information means there is nobody better placed to undertake your research in such a timely and cost-effective manner. When it comes to administering an estate and taking care of your client’s legacy, we understand that each case is unique and can provide a bespoke service to suit your needs.

That happened in the case of 81-year-old Helena McKae*, who left her £300,000 legacy to next-door-neighbours, Shelley Kimms* and her husband. According to Shelley, Helena felt as though her family did not “pay her enough attention” and so severed all ties to her next-of-kin.

However, after she passed away in 2010, Helena’s niece contended that her aunt lacked legal capacity to execute a Will.

It was discovered there was just one witness to the Will – Steven Kimms*

* Names changed for confidentiality purposes.

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Send us an email on Linkedin titled ‘Competition’ with your address, telephone number and email to be entered into our prize draw.

/in/fraserandfraser

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Legacies

STRAY DOG NUMBERS RISE IN SOUTH EAST The 2014 annual Dogs Trust Stray Dogs Survey launched this month revealing that 9,419 stray and abandoned dogs were handled by local councils across the Meridian region between 1st April 2013 and 31st March 2014. This represents a 2% increase from the 9,200 dogs handled during the same period last year. But would you know what to do if your dog went missing?

Rather worryingly, 64% of owners in the South East were unaware that it is the Local Authority’s responsibility to pick up and care for missing strays.

A further 75 per cent of respondents were also unaware that they had only seven days to recover a missing dog once he/she is in local authority care before ownership can be transferred to a new owner or they are potentially put to sleep if a new home cannot be found.

On average, dog owners thought they had 15 days to recover a missing dog, more than double the official time allocated – a figure which could help account for the 378 dogs in the Meridian region that were unnecessarily put to sleep this year. Although Local Authorities continue to encourage responsible dog ownership and do not want to put dogs to sleep, they do struggle to cope in this difficult economic climate.

Clarissa Baldwin OBE, Chief Executive of Dogs Trust says: “The number of instances of straying on our streets is declining in the UK as a whole, but we still have a significant job to do when it comes to raising awareness about responsible dog ownership. Owners are unsure of who to reach out to and how much time they have to recover their dog should he or she go missing. Microchipping not only helps speed up the process of reuniting an owner with their dog, it is also significantly reducing the number of strays overall. We’re calling

Photograph © Brian Young

on dog owners across the UK to come along to one of our free microchipping events at www.chipmydog.org.uk so that we can continue to improve the situation ahead of the change in law in Wales in 2015 and England in 2016 which will make microchipping compulsory.”

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

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

At Dogs Trust, we never put down a healthy dog. We’ll care for them at one of our 18 rehoming centres, located around the UK. One in every four of your clients has a canine companion. Naturally they’ll want to make provision for their faithful friend. And now you can help them at absolutely no cost. So contact us today for your FREE pack of Canine Care Card leaflets – and make a dog-lover happy.

Call

020 7837 0006

Or e-mail

today

ccc@dogstrust.org.uk

Or write to: Dogs Trust, Canine Care Card, FREEPOST WD360, 17 Wakley St, London EC1B 1NA (no stamp required) Please quote “DTSL”. All information will be treated as strictly confidential.

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

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

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FILM and the LAW

FILM and the LAW No 25 The Two Blonde friends and the Hangman

by VINCENT MCGRATH vmfilmnite@googlemail.com 020 8579 5330 07877 551442

The Two Blonde friends and the Hangman Contrary to popular belief those of us on the Home Front during the War weren’t all digging for victory on our allotments. Shortages and rationing brought out the worst in some sections of the community. There was the growth of the local spiv who traded in scarce commodities such as food and clothes. Nylons were their speciality, particularly with the arrival of the Yanks.

Higher up the scale were gangsters, who were behind lots of big scale crime including the infamous raid on a government ration book warehouse, which can you believe was never solved. So someone somewhere may have a garage full of ration books still in pristine condition and ready for sale on …..er….ebay? More seriously, guns were easy to obtain, and people were ready to use them. With the breakdown of society, there was some intermingling of the classes through the blossoming of nightclubs particularly in Soho. Show biz people struck up some unlikely friendships with members of the underworld, MP’s and Lords of the Realm. Also of course, just about anyone who was anyone was chummy with the Krays and had a snap in their wallet to prove it.

Peace had little effect on shortages, with Britain shivering and starving its way into the 1950’s. For most people austerity still reigned, but it seemed there was always the few that seemed to prosper. “It’s not what you know. It’s who you know.

Doncherknow” was a popular saying at the time.

People believed that if they could only make the right connection with the right person, their life would be hunky dorey.

Ruth Neillson was born into humble circumstances in North Wales, and sometime during the War, the family moved to London. Ruth left school at 14 and got a job as a waitress. This led to hostess jobs in pubs and later clubs. Given the homogeneity of the club scene she started mixing with people outside her circle and apparently given her looks and personality she was never short of work. After dabbling in singing, modelling and prostitution she became established with a wide circle of friends that included film stars and motor racing drivers like Mike Hawthorne – the Lewis Hamilton of his day. Things were on the up for young Ruth.

Diana Mary Fluck was born in Swindon in 1931 which made her 5 years younger than Ruth. Her birth was such that both herself and her mother nearly died.

The result was that Diana had everything that her mum could buy lavished upon her - Toys, clothes, ballet & singing classes. Eventually through lying about her age she became RADA’s youngest ever drama student, and by 1951 Diana was a household name but not as Diana Fluck. When signing yet another film contract, it was suggested she consider changing her name. As Diana put it many years later, They asked me to change my name.

I suppose they were afraid that if my real name Diana Fluck was in lights, and one of the lights blew....

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No 1, in the Old bailey, before Mr justice Havers (Nigel’s grand-dad) she said in answer to the prosecution’s only question, “It’s obvious when I shot him, I intended to kill him.” The defence had a team of three led by Melford Stevenson, who had a reputation of being somewhat eccentric bordering on the authoritarian and lacking experience of criminal law. It is also more pointedly, alleged that he lacked empathy with women. He seemingly colluded with the prosecution in keeping the trial on the short side, and has gone down in legal history for his statement, “There is no question here that this woman shot this man. You will not hear one word from me or the lady herself questioning that.” One has to ask with defence counsel such as Melford Stevenson, who needs prosecutors? When he retired to the South Coast to write his memoirs, it came as no surprise that he named his palatial residence, “The Truncheons” The jury took exactly 23 mins to return a verdict of guilty which triggered the macabre black cap procedure prior to the pronouncement of the death sentence. From the Bailey Ruth was taken to the condemned cell at Holloway to await execution.

Diana Dors She took her grandmother’s surname of Dors.

When Diana Dors first met Ruth, Ruth was married and had also changed her surname. Ruth Ellis as she was now known, had put hostessing behind her, to become the manager of the up market Carroll Club.

Diana knew Ruth to be ambitious and consequently got her a small part in a new film called Lady Godiva Rides Again (1951) free on line. Sadly Ruth’s brief flirtation with the movies was not a great success and neither was her marriage. She had by now become smitten with a fellow racing driver of Hawthorne called David Blakely - a posh boy who liked drinking and womanising.

Blakely was engaged and Ruth was still married. She lived alone above the club, and Blakely soon moved in but the relationship was tempestuous, resulting in Ruth being knocked around a lot, due to Blakely’s drunken jealousy. On one occasion he hit her so hard that she had a miscarriage.

Eventually in a fit of jealousy due to Blakely’s philanderings, Ruth got a gun from a friend and shot David 6 times outside the Magdala pub Hampstead. She surrendered to an off-duty policeman, who happened to be passing, saying, “I am guilty. I am a little confused.”

She was interviewed at the police station by three senior officers but without a solicitor present, and neither did she have legal representation in the magistrate’s court. No evidence of insanity was found by either the defence psychiatrist or the prosecution’s. At court

Despite defying her lawyers’ advice not to dye her hair blonde during the trial, in case it made her look like a common hussy, the prospect of executing such a young woman still filled a large minority of the public with revulsion. That being said, it is probably right that the majority of the country, whipped up by the popular press, was in favour. As you would expect, there were demonstrations both for and against the hanging in Downing Street and outside the prison. It became such a big public issue that even Raymond Chandler, of Philip Marlowe fame, wrote to the Evening Standard describing the proposed hanging as the

Lady Godiva Rides Again (1951)

FILM and the LAW

“medieval savagery of the law” Two factors contributed to Ruth’s eventual demise. Firstly Ruth was not co-operative with her lawyers, and secondly it is generally acknowledged that her lawyers in turn could have done better.

Whereas it was accepted by both sides that she wasn’t insane, the defence could well have dug deeper with regard to other aspects of her health. For example Ruth is thought to have had about 4 abortions and at least two miscarriages but non of this evidence was brought to the attention of the court. Whilst diminished responsibility did not become law till 2 years later (S3 Homicide Act 1957), medical evidence could still have formed part of an appeal or reprieve if it had first been adduced as evidence during the trial. The foreign press had a field day of course in that the law of the cold loveless English did not allow for the plea of crime passionnel - murder committed in a fit of sexual jealousy. Also the question of the gun did not form part of the evidence save that Ruth claimed she had kept it in a drawer for years which of course was patently not true. Her friend Desmond Gusson with whom she had also been having an affair gave it to her and furthermore showed her how to use it. Her lawyers eventually upon hearing the truth about the gun, made strenuous efforts to bring it to the attention of the Home Secretary. Unfortunately the attempt misfired, and the reprieve was rejected on the grounds that obtaining the gun beforehand from her friend demonstrated premeditation which of itself inferred greater guilt. The Home Secretary went on to say, given that a member of the public received a slight shrapnel injury to her thumb during the shooting, “We cannot have people shooting off firearms in the street. As long as I am Home Secretary I am determined to ensure that people can use the street without fear of a bullet.”

Ruth’s fate was sealed, to invoke the time honoured cliche. It has been said that Ruth was an angry young woman at a time when Angry Young Men were de rigeur and the height of fashion. She clearly wanted more from life than life could deliver.

13/07/55. Execution Day. It was raining & Ruth was 28.

Albert Pierrepoint the executioner claims Ruth turned and smiled at him just before he placed the hood over her head. Later he went to great lengths to tell Ruth’s mother how courageous Ruth had been. One wonders just what he meant by the word courageous and why he wanted to contact Ruth’s mum in the first place?

And what of Ruth’s friend Diana? There is no record of Rank’s answer to Marilyn Monroe visiting her condemned friend in Holloway, but within eleven months of Ruth’s death a film was on the country’s cinema screens called Yield to the Night (1956) free on line. It told the story of a Mary Hilton awaiting execution, and playing the murderess was non other than the blonde bombshell Diana Dors! Was this a case of the film industry cashing in on a case that was still uppermost in the public’s mind or simply a coincidence? The first treatment for the film was actually written by the director’s wife, and former jailbird, Joan

Diana Dors and Yvonne Mitchell in Yield to the Night (1956) Henry several years before Ellis carried out the killing, so it is reasonable to assume that it was a coincidence, albeit in the scheme of things, a bizarre and eerie one.

The casting of the de-glamorised Diana who bore a more than a passing resemblance to the deceased nightclub hostess must have struck disturbing images in the mind of the British public. The eerie confluence between these fictional and real life tales of crimes passionnels must have seemed more than a mere coincidence.

The film, although critically acclaimed, and greeted with rapturous applause at the Cannes Film Festival, is now more or less forgotten. Critics remarked upon the surprising quality of Diana’s acting. The reality of course was that the Blonde Bombshell could act and had been doing so in 29 films since 1947 – an average of three per year. It was just that she had been starved of parts that would have displayed her talent. Blonde maybe, but certainly not Dumb. She was famous for her wise cracks such as, “I am the only sex symbol Britain has produced since Lady Godiva.”

Yield to the Night was popular with audiences.

Some cinemas organised discussions on capital punishment after the screening whilst others had more traditional ballyhoo such as Diana Dors Look Alike Competitions - the winner going home with a state of the art washing machine. The film has lots of scenes to commend it, not least of which is the prison doctor daily bathing and bandaging Diana’s foot blister caused by the prison issue shoes. There is a queasy irony that so much attention is paid to a tiny blister, as though the state must be sure it is sending a perfectly healthy body to its death. Through out the film, the condemned woman is haunted by a poem she learnt as a child, About the woodland I will go to see the cherry hung with snow. The director J Lee Thompson who was clearly against capital punishment, said that, “You must take somebody who deserves to die and feel sorry for them, and then say this is wrong. In Yield to the Night we made it ruthless pre-medicated murder.”

having her hands tied behind her back. She then walks straight at the camera which fades to black. The camera re-opens on the half smoked cigarette still smouldering, while its smoker is herself being extinguished. The cigarette remains sitting precariously on the edge of the ashtray, but the director resists showing it fall which of course it inevitably will. Fade to black. The End. It is not hard to understand why the French cinephiles gave this English crime passionnel film a standing ovation at Cannes. Such aficionados of the silver screen simply can’t get enough of such visual metaphors, or as they would put it, mise en scene.

Apparently in real life, Ruth Ellis, took off her spectacles, slowly folded them, and then placed them on the table.

She turned to the hangman Albert Pierrepoint and said, “I won’t be needing those anymore.”

One wonders which option the director would have chosen to shoot, had he been presented by the screenwriter with alternative endings. Either (1) The fictional smouldering cigarette or the (2) The real life spectacles.

Morrissey noted that Ruth should be seen as a passionate and angry young woman at a time when Angry Young men were de rigeur and at the height of fashion. She was in a sense ahead of her time in that she wanted more from Life than Life was willing to give her.

After the execution Ruth’s mother attempted suicide with coal gas and was never able to speak again. Ruth’s husband, George, hanged himself, whilst her son committed suicide after desecrating her grave.

Diana married 3 times and died of cancer at 52.

She left her fortune to her son via a secret code in the possession of her third husband Alan Lake who killed himself shortly after Diana’s death. The code was never found and the whereabouts of the fortune remains a mystery.

The last hanging took place in the UK in 1964.

The final scene has Diana carefully putting her partially smoked cigarette on an ashtray prior to

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Legal News

Not a week seems to go by these days without more speculation in the legal press about how uncertain the future is for small firms, sole practitioners and those in legal aid practice.

For organisations like SBA the Solicitors’ Charity, however, it’s clear that starker times arrived quite some time ago.

SBA Beneficiary Secretary Dervilla Carroll explains, “We regularly take calls from solicitors affected by redundancy and shorter hours. In many cases, all their savings have been used up, the home is on the verge of repossession or already gone and debts are spiralling out of control. It’s not unusual to see people sofa-surfing, living in temporary bed-and-breakfast accommodation or moving back to live with an elderly parent.

One former partner is currently living in his car while trying to sort out job interviews.”

It’s obviously not pleasant to muse on what it’s like to move from comparative prosperity to £72.40 a week, the level of Jobseeker’s Allowance. However, some of the research shared by LawCare suggests that lawyers are uniquely well qualified in the art of denial.

Solicitors who are buried in the detail of heavy workloads and managing their own clients’ expectations don’t necessarily recognise when they themselves need to ask for help. As professionals who excel at taking control in chaotic situations, solicitors are often overwhelmed when, despite their best efforts, they cannot influence a particular outcome. Professional and personal relationships start to crack and, as both SBA and LawCare know only too well, families can blow apart as a result.

Many applicants advise that they have known about SBA for most of their professional lives.

However, the charity is often

associated with more traditional types of support for older or disabled people. SBA does of course still help former colleagues but, as the profession’s own charity, it has also geared services in readiness for market contraction. One new pathway is to provide free careers support, underpinned by short-term financial help to boost people’s chances of getting back into work, either in the law or not. Subject to a confidential test of income and savings, solicitors who qualify for financial assistance can join a three-month programme which offers holistic career, job search and wellbeing support, all provided by a single professional consultancy. SBA also wants to help create financial breathing space for colleagues who need that extra bit of support at the right time – for example, covering the costs of removal expenses for a family looking to downsize their home.

The next few years could well be grim for many in the profession but, with support organisations standing by to help, it is possible to see some light at the end of the tunnel. Don’t wait to hit crisis-point – act now.

Visit www.sba.org.uk for further information, telephone 020 8675 6440 or email bensec@sba.org.uk

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