Biblio 1

Biblio Berkshire • Buckinghamshire • Oxfordshire Incorporated Law Society

Issue 1 - Spring 2017

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BBO Awards & Dinner 2017

Dear Colleague, The Berkshire, Buckinghamshire and Oxfordshire Incorporated Law Society Legal Excellence Awards will showcase the very best of the region’s legal talent. This is your chance to highlight your company, your skill and your community contribution - please enter these awards.

Cyrus Medora President BB&O Law Society

Invite and further details inside - see p. 5 Also in this issue: What is a Notary? • Criminal Contract 2017 - Threat or Legacy?

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Issue 1 - Spring 2017

From the President...

Berkshire Buckinghamshire Oxfordshire Incorporated Law Society Magazine

Contents

Dear Members, When I was younger I remember once reading a quote

by Lillian Watson: “There has never been an age that did not applaud the past and lament the present”. It came up during a classroom debate in University not long after the events of 9 September 2001 when the future seemed so uncertain, if not bleak. Fast forward 15 years and with our legal and financial place in Europe in doubt and the United States making itself great again, I am reminded of the dangers of assuming that the challenges of the present are so much worse than they have been before.

And so the same can be said of our slightly more modest concerns around the future of our profession. As I write this piece, the Committee of the BB&O have started the process to seek our members’ approval to amend our constitutional documents to allow the admission of non-solicitors for the first time. The way we practice law has changed over the years as has the people who practice it or who provide a “legal service” to a client (I still dislike the word “customer”). Whilst the pace of change in our profession fluctuates over time, the direction of change seems to be fairly constant and towards an increasing marketisation of legal services. Those services will be provided by a mix of different providers, with the traditional firm being just one player. It is right, therefore, to consider again who we would like to welcome in as new members. Forms for the EGM have already been sent out to the membership but if you have not received these, please do contact our Administrator, Amanda Jopson.

My two year term will come to a close in July of this year and the speed at which 2 years have passed has been extraordinary. I am very pleased to host the President’s Dinner at Bisham Abbey this year with our inaugural BB&O Law Awards. Justin Sadler and Jane Whitfield are working very hard on the awards and I am confident the dinner will be an enjoyable occasion to celebrate some of the very best that the BB&O has to offer.

I look forward to welcoming as many of you as possible at the Dinner.

Regards, Cyrus Medora President, BB&O Law Society 2015/2017

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From the President

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Committe Members

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A word from the Editor

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BBO Excellence Awards 2017

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News

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Criminal Contract 2017

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Lecture Programme Booking Form

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Royds Withy King at the Ashmolean

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What is a Notary and why become one?

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New llight on charitable legacies

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The Open Spaces Society

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Philanthropic Legacies

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Conveyancing Limit increase and Solicitors

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LEAP 365 Case Management Software

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Cyber Crime - What is our exposure?

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Who owns a planning permission?

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Chancel Repair Liability - Safely ignored?

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Brexit and the legal sector

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Simplifying Conveyancing Searches

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Water & Drainage - Competition and Choice

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Government to raise probate fees

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membership

Berks, Bucks & Oxfordshire Incorporated Law Society

Committee 2016-17 President Cyrus Medora Kidd Rapinet DX 42269 Slough West CMedora@kiddrapinet.co.uk

Administrator Amanda Jopson BB&O Law Society DX 45803 Woburn Sands admin@bbolawsoc.org.uk

Jonathan Warbey Horwood & James DX 4102 Aylesbury jonathan.warbey@ horwoodjames.co.uk

Vice President Simon Stone Kingsley David DX 45801 Woburn Sands simonstone@kingsleydavid.com

Berkshire Justin Sadler Barrett & Co DX 4033 Reading justin@barrettandco.co.uk

Oxfordshire

Council Members Razi Shah Appleby Shaw DX 3830 Windsor rshah@applebyshaw.com

Tracy Norris-Evans Withy King DX 4314 Oxford 1 tracy.norrisevans@withyking.co.uk

Nawaz Khan Abbott Forbes DX 45410 Cowley nawazkhan.gb@gmail.com

Immediate Past President Richard Sauvain Parrott & Coales DX 4100 Aylesbury richard.sauvain@ parrottandcoalesllp.co.uk

Jane Whitfield Barrett & Co DX 4033 Reading Email : jane.whitfield @barrettandco.co.uk

Edward Pilling Withy King DX 42351 Headington edward.pilling@withyking.co.uk

Local Authority Solicitors Peter Clark Oxfordshire County Council DX 4310 Oxford peter.clark@oxfordshire.gov.uk

Hon Secretary Simon Stone Kingsley David DX 45803 Woburn Sands admin@bbolawsoc.org.uk

Buckinghamshire Roderick McCulloch Reynolds Parry Jones DX 4407 High Wycombe roderick.mcculloch@rpj.uk.com

Special Members

Richard Coleman Withy King DX 4314 Oxford 1 richard.coleman@withyking.co.uk

A word from the Editor W

elcome to the first edition of Biblio, we hope you find it both informative and interesting in equal measure. The magazine will be published on a quarterly basis and we urge you all to become involved. We need articles, interesting information, photographs, celebratory announcements, and achievements.

The articles do not have to be about the law, just about a subject that you feel would be of interest to others. The magazine is for you, the members of the BB&O and our aim is

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to reflect this in the content. The next issue will include an article written by a Legal Apprentice and one by a Trainee Solicitor who is just finishing her training, showing two different routes into the Law. On the training front we are also looking for new topics to enhance our popular lecture programme so please get in touch with your ideas. Our next lecture is a presentation by Oxford District Probate Registry on 10th April so please contact me if you wish to attend.

Finally, as is obvious from the front page the big event for this year will be our Awards Dinner being held at Bisham Abbey on 25th

May next. Details regarding the nomination procedure are on page 5. In particular if you have any Chartered Legal Executives who deserve the recognition of an award then please nominate them now. Please do get involved in what promises to be an enjoyable evening.

Tickets for the Awards Dinner are now available at a cost of ÂŁ60.00 (inc. VAT) for single tickets or ÂŁ540.00 (inc. VAT) for a table of ten. Please email admin@bbolawsoc.org.uk to purchase your tickets.

Amanda Jopson Administrator Amanda@bbolawsoc.org.uk

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Editorial

BBO Law Society Excellence Awards 2017 Entries from all law firms are invited for the Berkshire, Buckinghamshire and Oxfordshire Law Society Excellence Awards.

This year’s categories include:

• Solicitor of the Year - sponsored by James Cowper Kreston

H

ollywood may have its Oscars and Britain its BAFTAs, but as far as your local law firm is concerned, nothing beats winning the title of “Solicitor of the Year”.

• Junior Solicitor of the Year - sponsored by Index Property Information

The annual Legal Excellence Awards are being presented by Aylesbury MP and Leader of the House of Commons, David Lidington CBE PC at a prestigious awards dinner being held at Bisham Abbey on May 25th.

“We are delighted Mr Lidington has agreed to be the main speaker at the event, he represents a town within our area and is an exceptionally talented politician within Government. He has a good insight into the legal profession too.”

• Chartered Legal Executive of the Year - sponsored by Landmark Information Group

Mr Lidington said, “I am delighted to speak at the awards dinner. Many excellent law firms entering the awards are based in my Aylesbury constituency and I shall be hoping for a local win!”

Just like the Oscars, there are plenty of categories offering a trophy providing the law firm can convince the panel, made up of industry judges, that they deserve the coveted title.

• Pro-Bono/Corporate Social Responsibility - sponsored by Royds Withy King Solicitors

The Awards are open to firms and individuals, across all levels of the legal spectrum, practising in the Berks, Bucks and Oxon areas.

For more information on the awards entries please contact Justin Sadler or Jane Whitfield, Contentious Probate Specialists and awards entry organisers at Reading firm Barrett and Co via email justin.sadler@ barrettandco.co.uk or telephone 0118 958 9711.

You can get the Awards Criteria and Nomination forms from the website www.BBOAwards.co.uk or by emailing admin@bbolawsoc.org.uk

Please feel free to contact any of our sponsors to enquire about their services. Thank you.

Nominated candidates and the winners of each of the categories will be able to attach the BB&O Excellence Award Nominee or BB&O Excellence Award Winner logos to their publicity material.

Law Society Excellence Awards Event Sponsor: Index Property Information

The awards criteria and nomination forms can be found on www. bboawards.co.uk or by emailing admin@bbolawsoc.org.uk.

The BBO Law Society Awards dinner will take place on Thursday 25th May 2017 at Bisham Abbey, Marlow, Buckinghamshire. Further details are available on our website or by contacting admin@bbolawsoc.org.uk

Tickets for the Awards Dinner are now available at a cost of £60.00 (inc. VAT) for single tickets or £540.00 (inc. VAT) for a table of ten. Please email admin@bbolawsoc.org.uk to book your tickets

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NEWS

NEWS NEWS NEWS NEWS NEWS NEWS Membership News Following suit of many local law societies, on the 13th February 2017 the BB&O voted in favour of extending membership to those persons who work within solicitors’ firms and who are Chartered Legal Executives, Licensed Conveyancers or Notaries Public. This more accurately reflects the character of the profession now and will give a much needed boost to the local representative function of the Society.

If you feel there are colleagues who with the changes are now able to apply for membership please ask them to contact admin@bbolawsoc. org.uk.

From the newsletter produced by the Law Society Social Mobility Index is launched The Social Mobility Commission and the Social Mobility Foundation have launched a joint initiative, the Social Mobility Employer Index.

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The index is open for submissions until 3 May. The Law Society will be participating and is encouraging our members to do the same.

Find out more at: www.socialmobility.org.uk

• costs • conveyancing • membership of lender panels • private client problems • litigation

National Conference of Local Law Societies 2017 This year’s conference is hosted by The City of Westminster & Holborn Law Society and will take place on 9 and 10 November 2017.

They also receive calls on client care and compliance, PII and pastoral care and details of these helplines are given below.

For further information and to book your place, please visit www.eventbrite.co.uk.

Profile on the Practice Advice Service A significant way in which the Law Society assists members is by providing a range of helplines such as the Practice Advice Service (PAS). Established for over 27 years, Practice Advice is staffed by solicitors who provide free and confidential telephone advice to solicitors and those who work for member firms.

The deal with over 28,000 enquiries a year on a wide variety of practice issues such as: • anti-money laundering

Other helplines: In addition to the main advice line, they also have other helplines such as: • Anti-Money Laundering Tel: 0207 320 9544 • Lawyerline - a service which advises solicitors on how to deal with complaints Tel: 020 7320 5720 • Professional Indemnity Insurance Tel: 020 7320 9545 • Pastoral Care - a referral service which helps members with personal, professional, financial and employment problems.

Tel: 0207 320 5795 NB: The PAS will be taking part in the marketplace sessions at this year’s Presidents & Secretaries Conference.

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advertorial

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ARTICLES

Criminal Contract 2017: Threat or Opportunity?

T

he Legal Aid Agency is finally sending out the new 2017 Contracts for Criminal providers, commencing 1st April 2017. This follows in the wake of the ill-fated “twin-tier” duty solicitor system, which threatened the reduction of the criminal supplier base to 527 firms. That scheme was abandoned after judicial review proceedings were launched and the LAA received criticism for the selection process.

The new regime will continue to pose multiple challenges for firms undertaking publicly funded work for some of the most vulnerable in society. There is much uncertainty as to Legal Aid fees and the governments’s plans for costs; this will endanger firms profitability and indeed survival. Small and medium firms are particularly at risk.

The rates of Legal Aid have been in decline for many years, particularly in the post 2008 world of austerity. Remuneration has continued to be slashed, with a move from hourly rates to fixed fees, in both Magistrates and Crown Court. Police station work is highly unprofitable, despite being anti-social and representing individuals facing criminal allegations. Since 2009, in the most serious cases, offences have been paid according to category and page count, with the demise of a sophisticated and established system of “taxation” of work done according to complexity of the case and the clients needs. Most recently in 2106, the Government suspended a second 8.75% cut, after an earlier similar cut in 2014.

It seems that this was a temporary reprieve as the new contracts are scheduled to bring in the second cut. However, an alternative proposal, which would avoid this cut, is for firms to agree to cuts in other areas.

We are asked to agree to a reduction in rates, where we are appointed at short notice to represent clients at the Magistrates Court, who would

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otherwise be unrepresented. This work is currently paid at private hourly rates, covering only preparation for the cross-examination of complainants, in cases say of domestic violence. The defendant in these cases is often not eligible for Legal Aid, as he falls outside the relatively low income for legal aid. With such high stakes, Legal Aid rates would not justify the care and urgent nature of representation required.

Legal Aid cuts are also sought in the most serious of cases at the Crown Court. As mentioned these are not paid for according to work done or hours spent, but rather on case category and page count. With digital and computer evidence the Prosecution Page Evidence (PPE) can sometimes exceed 10,000 pages. These are exceptional cases , which warrant senior lawyers dealing and special preparation. The proposals would limit the remuneration and make it impossible to do a decent job for the client, when the risk of prison is really likely if convicted. In such cases, even now we are not paid for the time spent going through vast amounts of unused material.

With such cost pressures in any of the above three scenarios, we are facing inevitable and damaging cuts which are likely to lead to an existential crisis for the supplier base. Whilst the market has seen the growth of super-sized firms in anticipation of the new contracts, some may struggle under the new cost level and expose themselves to risk. Criminal lawyers have already acceded to reduced salaries and this trend may continue. We are doing more for less as a result of the financial crisis and the shrinkage in the market. Digitalization may make things somewhat easier but unless the system is properly funded and managed, there are real dangers ahead.

Nawaz Khan Law Society Member Oxon & Bucks BB&O Member.

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training

BERKS, BUCKS & OXON INC. LAW SOCIETY Lecture Programme Spring/Summer 2017

Please state number of tickets required with names of those attending and whether members, trainees or nonmembers. Please also provide your email address.

Date:

Lecture:

10th April 2017

Oxford District Probate Registry: A presentation on best practice.

No tkts:

Mbrs/Trnees

Non-Mbrs

Delegate name:

May 15th 2017

Index Search Company - further details to follow

Delegate name:

June 2017 John Bunker - Tax Aspects of Declarations of Trust & Property Arrangements within Families Delegate name:

24th July 2017 Richard Snape - Commercial Property Law Update

Delegate name: Add the total number of tickets required, Members, Trainees

& non-Members, then calculate cost inc VAT

£78.00 (inc VAT) for members and their trainees, or Total tickets required: £114.00 (inc VAT) for non-members £42.00 (inc VAT) for non-qualified members

Please make cheques payable to the BB&O Inc Law Society Total amount due: £

Mbrs/Trnees

Non-Mbrs

Time: Lectures start at 6.45 pm. Supper from 6.15 pm Open to BB&O Members, their Trainees and Legal Venue: Holiday Inn High Wycombe M40 J4 Executives and other solicitors. Tickets are allocated Notes: Lecture notes will be provided in advance by email. in order of application save, if over subscribed, Food: Sandwiches & coffee included in ticket price members have priority.

CPD: Lectures attract 2 hrs CPD Cost: £65 + VAT for BB&O members £95 + VAT non members and £35.00 plus VAT for non-qualified members.

PERSON to whom tickets should be sent DX or POSTAL ADDRESS Email address required for all delegates please

Return to: BB&O DX 45803 Woburn Sands or Shelton House, 4 High Street Woburn Sands MK17 8SD VAT Registration No 199879953. A Company Limited by Guarantee No 28807C

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Royds Withy King at the Ashmolean

O

ver 180 of Oxfordshire’s local influencers, decision makers and professionals attended the annual Royds Withy King event at the Ashmolean.

Held in the Randolph Sculpture Gallery which provided the perfect backdrop as our managing partner Graham Street brought the audience up to speed with recent firm developments. Jayne Woodley from Oxford Community Foundation spoke about the importance of bringing businesses and charities together to find common ground so we can find better solutions to the community problems we face.

Robert Pinheiro

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Events

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advertorial

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articles

What is a notary and why become one?

N

otaries have a very long history, having been in existence since Roman times, at which time they were trusted individuals who kept records of court proceedings and who drew up wills.

The history of notaries could take up a whole book on its own (and has) but suffice it to say that as history progressed after the fall of the Roman Empire notaries were appointed by the Pope and following the Reformation, when the Pope’s power in England was vested in the Crown, the power to appoint notaries passed to the Archbishop of Canterbury and remains there, so that notaries have the unique status their regulator for the purposes of the Legal Services Act Is the Faculty Office of the Archbishop of Canterbury. It also means that on qualification a notary receives a handwritten “faculty” on animal skin similar to vellum with the Archbishop’s seal.

Notaries have always been individuals who can be absolutely relied upon for the authenticity of any act or deed that they verify and this is still the case.

There are of course notaries in other countries but by contrast to those notaries, subject to what I say below, notaries in England and Wales almost always deal with matters which require be authenticated for use overseas.

This encompasses an enormous variety of requirements and this is what makes the job as a notary very interesting. Just to give some examples, a common requirement is the need to verify the signature and understanding of individuals signing powers of attorney in favour of lawyers overseas to buy and sell property, but it will include authenticating academic qualifications for someone who is getting a job in Dubai, affidavits of freedom to marry for people getting married in Cyprus, witnessing signatures and understanding

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of acknowledgements for the release frozen shares in the US, verifying the existence of a company and its offices in England and Wales when they wish to set up another company in Russia, and so on, the list is endless.

Therefore when making the application for exemption it is worth trying to ensure that your application covers sufficient detail of your and your firm’s practice to gain as many exemptions from the core subjects as possible.

In my seven years as a notary I dealt with over 1600 matters the large majority of which were one-offs and which involved me dealing with documents and facts which were required to be authenticated for over 120 different countries.

Once the faculty office can give you exemption from the core subjects you are then able to undertake the two-year correspondence course which is currently run by University College London and does include a limited number of weekend elements.

As a result of this variety you meet a very large number of interesting individuals and businesses, the vast majority of whom will not have come to your firm before and this is one of the reasons for considering becoming a notary i.e. to provide opportunities for cross selling.

The two years cover Roman Law and Private International Law in the first year and Notarial Practice in the second year and are both assessed by written tasks during each course and each subject is examined once. My own experience was that taking an examination was quite a challenging experience, since I had not sat an exam for over 35 years.

So how do you become a notary?

It was not so long ago that he simply had to be articled to a notary but the need to ensure that notaries retained some significant difference and to ensure that , in particular, European notaries, who are highly qualified lawyers, could not criticise the lack of specialisation of their English colleagues, English notaries and for at least 15 years now had to undertake a two-year correspondence course, a prerequisite of which is that they must show that they are entitled to exemptions from the 10 “core subjects” which include company law, probate and conveyancing. If the course is passed at the end of the two years then the notary is subject to 2 years supervision before they can practice on their own.

There is guidance on this available from the faculty office (http://www.facultyoffice.org. uk/ ). A point worth noting is that if you have not qualified recently or are not in a firm which is sufficiently general to cover the core subjects, particularly including the three mentioned, the faculty office may require you to undertake an ILEX course on one or more of the subjects to ensure that you are up to speed.

The cost of the course is currently £7,500, which immediately prompts the question, is it worth it?

I am happy to say that until I had to retire it definitely was worth it with my income increasing year-on-year, and my last complete year giving an income of £45,000. However I am aware from notary society surveys this was among the higher incomes among notaries, and some notaries do not even earn £5,000 per year.

However your success depends on partly how many other notaries there are nearby (which you can find out by looking at the notaries Society website find a notary function (https:// www.thenotariessociety.org.uk/ ) and how active they are, but more particularly how much effort you are prepared to put into developing the business, a willingness to deal with a client immediately at any time and a good a website.

The last being key in my opinion.

Some of the perceived advantages of becoming a notary include the fact that it is entirely independent of the solicitors’ practice that you work for, or in, and if you can reach agreement

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with your practice you may be able to keep the income - you can certainly continue the notary work well into your retirement.

In addition if you practice in probate and/or conveyancing and decide you wish to set up on your own, or continue dealing with this in your retirement, you are able to do so as a notary without being a solicitor.

Your regulator will be the Faculty Office and your insurance premium will be very small indeed.

The cross selling opportunity, which is one of the reasons that I became a notary did indeed occur on a number of occasions.

Apart from the references above, if you are interested in finding out more then the Notaries Society, in conjunction with University College London, hold an annual day to explain more to prospective notaries which is intended to enable you to make an informed decision about whether to proceed. A video of the 2016 course can be found here (http://www.laws. ucl.ac.uk/study/continuing-professional-development/notarial-practicecourse/ ) and the 2017 course will be available on video shortly. The next course is scheduled to take place in February 2018.

In addition I would be happy to talk to anyone who wished to discuss the possibility becoming a notary. My contact details are james. couzens@btinternet.com James Couzens

Swan Lifeline E

stablished over thirty years ago, Swan Lifeline operates from a purpose built rescue headquarters and treatment centre at Cuckoo Weir Island, Eton SL4 6SS with a live in Centre Manager supported by staff and volunteers.

We rescue and provide shelter for sick, neglected and injured swans.

We educate the public about the incidence and effects of pollution and human activities on swans and other wildfowl on our rivers and waterways.

Reliant on our own fundraisings efforts the provision of legacies is a significant part of our income.

We aim to provide a professionally managed treatment centre to continue in perpetuity not dependent on any one person or group for survival.

Swan Lifeline Cuckoo Weir Island, Eton SL4 6SS 01753 859 397 www.swanlifeline.org.uk Charitable Incorporated Organisation 1156995

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charities

Research sheds new light on charitable legacies N ew research launched today at the Law Society provides valuable insights into how solicitors can help their clients use their wills to support charities.

Commissioned by Remember A Charity and conducted by the Behavioural Insights Team (‘Nudge Unit’) and the University of Bristol, the research has examined the way that solicitors raise the issue of clients leaving money to charity in their wills. It highlights the impact of different approaches and how these produce different results in charitable giving.

‘Writing a will is an important step in ensuring that the people, and causes, we have cared about will be properly looked after when we pass away.’ said Law Society president Robert Bourns.

‘Solicitors have a vital role to play in this process, using our legal knowledge and experience to give our clients the reassurance that their wishes will be properly carried out. This research makes an important contribution in helping solicitors think about how we give our clients the best possible support and service in the will-writing process.’

The research was conducted using randomised control trials in eight firms of solicitors around the United Kingdom. It tested a range of ways of raising the subject of charitable giving, and shows the different results that each produces.

Findings of note from the report include that:

• Solicitors felt able to raise the issue of leaving money to charity in discussions with their clients comfortably and appropriately. Clients who were told that many people bequest money to charity in their wills were 40 per cent more likely to do so themselves when writing their first will, and • Clients with families may be more inclined to leave a legacy when asked if they wanted to leave to charities that their family had previously supported or benefitted from.

Rob Cope, director of Remember A Charity, said: ‘Legacy giving has become increasingly important to UK charities in recent years, generating around £2.5 billion for good causes annually and its impact on charitable services is immense. But, despite being a highly philanthropic nation, a relatively small proportion of people leave a charitable bequest in their will.’

‘Many simply don’t realise that legacy giving is an option for them; that they can provide for family and friends and still have the opportunity of including a charity if they wish to do so. The role of legal professionals is crucial in making clients aware of all the opportunities they might want to consider when writing a will.’

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The research also surveyed the public on their views about solicitors raising the issue of leaving to charity when helping a client write their will. This survey showed 69 per cent of people indicated that they would be happy for their solicitor to raise the issue, and 46 per cent thought a solicitor had ‘a duty’ to raise the option of such a legacy giving when discussing a will.

‘We know that there’s a big gap between the 35 per cent of people who say they want to leave a charitable legacy in their will and the around six per cent of people actually do,’ said Robert Bourns.

‘By improving our understanding of how to raise this important question, solicitors will be better equipped to assist our clients in drafting a will that properly reflects their wishes.’

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charities

The Open Spaces Society

Beacon Hill

T

he Open Spaces Society celebrated its 150th anniversary in 2015; founded in 1865 as the Commons Preservation Society it is Britain’s oldest national conservation body.

In its early years it saved many commons and other open spaces in and around London: Hampstead Heath, Epping Forest and Wimbledon Common for example.

It studied all the parliamentary bills, of which there were many in the late Victorian era for the building of railways in particular. The society helped save Hungerford Common in Berkshire, among others, from the Great Western Railway in 1908.

In 1895 the society’s founders and early activists created the National Trust as a landholding body. The society then established local committees who raised money to buy threatened properties for the Trust. For instance, the society assisted local people with the acquisition of common land by the National Trust around Marlow and Maidenhead in Berkshire in the 1930s.

Today the society still safeguards common land: as a statutory consultee it scrutinises every application for works there.

Commons are important to their local communities and it is vital that the society examines all the applications for works. We have helped to defeat some inappropriate proposals, such as unsightly and restrictive fencing on Kingwood Common in the Chilterns. In 2010 the society published guidance to land managers, Finding Common Ground, on how to ensure that they

take account of all those with a stake in the common before they proceed with plans which might alter its appearance or ecology.

We also advise communities on protecting their green spaces, by registering them as town or village greens. We have helped communities to register village greens at Trap Grounds, Oxford; Sunningwell, and Humpty Hill, Faringdon in Oxfordshire; Pimms Grove, High Wycombe; and Woughton Park and Passmore, Old Woughton, Milton Keynes, among many others. Once land is registered as a green, local people have the right of recreation there and the land is protected from development.

bridleways after they had been obstructed by the Chequers Estate.

Today the society is notified of all proposed changes to public paths and, where we have a volunteer local correspondent, we object if we believe the change is against the public interest. This means that we may need to appear at public inquiries and hearings. We cannot afford legal representation so we make use of our in-house expertise from staff and volunteers with long experience.

In Berkshire, Buckinghamshire, Oxfordshire and beyond we champion the cause of open spaces and public paths. We take up hundreds of cases each year and we lobby parliament for better, tougher laws. We have no public funding; we depend on legacies and donations to support our vital work.

Web: www.oss.org.uk Tel: 01491 573535 Email: hq@oss.org.uk Registered in England and Wales, limited company 7846516 Charity no 1144840

Sunningwell, Oxon.

It is more difficult to claim land as a green now that the Growth and Infrastructure Act 2013 has been passed, outlawing the registration of greens where land is threatened with development. So we are promoting an alternative means of protecting land, by applying for its designation as Local Green Space in the local or neighbourhood plan.

We were active in the campaign to achieve a responsible freedom to roam for the public on common land and mapped areas of moor, heath and down, culminating in the Countryside and Rights of Way Act 2000. We helped to win Beacon Hill, near Ellesborough, and Cobstone Hill at Ibstone, both in Bucks, as access land for the public.

Our history of defending public paths goes back a long way. For example, in 1902 the society secured the reopening of 35 footpaths and

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CHARITIES

Are you equipped to help clients plan their philanthropic legacy?

The difficulty of creating an effective legacy

D

espite a high demand for philanthropy advice amongst wealthy clients, many professional services firms struggle to give an insight into the causes or individual charities that fit with the client’s concerns. If your client would like to leave a charitable legacy, community foundations could be the place to turn to help them decide how to give, and to what.

Recent research by Philanthropy Impact has shown that only one in five professional advisors offers any philanthropy advice – and that the advice, when it is given, is not rated highly, an average of 5.9 out of 10. What is more, a study by the Charities Aid Foundation shows that where clients receive good philanthropy advice from their professional advisor, the relationship is much enhanced.

So how do you go about providing good philanthropy advice to clients who may have varying levels of confidence or knowledge about the causes close to their heart?

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Clients thinking about their long-term legacy may have particular charities in mind, and may well be planning to support them in a will. However, history is littered with well-meant legacies that did not stand the test of time: pledges for the relief of problems that have become irrelevant in the modern world, or funds directed to organisations that have ceased to exist.

Community foundations were created to address this very problem. Rather than being too specific about the cause or organisation that is a beneficiary of a will, clients can name the community foundation serving their local area as the beneficiary of an unrestricted gift. The foundation’s trustees then have the flexibility to support a wide range of important causes that fit with the donor’s wishes, and to respond to changing needs in the future.

How community foundations help Across the UK there is a network of 46 community foundations covering every region, each of which has specialist knowledge of the individual charities working to address the social issues specific to that area. Community foundations are registered charities in their own right, and are acknowledged by the Charity Commission for their effective management of charitable funds in order to maximise their impact at local level.

Most importantly, community foundations are skilled and experienced at working alongside solicitors, wealth advisors and accountants, complementing their client work with local, knowledgeable philanthropy advice and networks.

Clients can leave a gift of any size to support a particular cause or area through a community foundation’s themed funds, or set up their own named fund – a ring-fenced fund within the community foundation’s assets that will be dedicated to supporting the charitable wishes of the client. This mechanism enables family and friends to be involved in the decision-making process, without the burden of legal or fiscal responsibility.

For more substantial gifts, community foundations also offer the possibility of contributing to a pooled endowment fund, where client monies can be invested and increased over the long term, ensuring any legacy has an impact into perpetuity.

The practicalities Legacies made to community foundations qualify as a charitable donation, and are therefore exempt from inheritance tax. This could help reduce the total amount of tax paid on an estate, and maximise what is available for heirs.

Community foundations work closely with professional advisors to agree the most appropriate solution for their clients. We are able to manage legacies of all kinds, including residuary or reversionary legacies, a pecuniary legacy, or a specific item or asset, such as cash, land, property or stocks and shares.

To find out more, please visit the website of your local community foundation: • Berkshire Community Foundation www.berkshirecf.org • Heart of Bucks Community Foundation www.heartofbucks.org • MK Community Foundation www.mkcommunityfoundation.co.uk • Oxfordshire Community Foundation www.oxfordshire.org We can also work across county borders to provide a holistic service to advisors or clients wishing to support a wide geographical region.

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Conveyancing limit increase recognises the value of Law Society accredited solicitors

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oday’s announcement by high street bank HSBC that they will increase the range of properties that sole practitioners accredited under the Law Society’s Conveyancing Quality Scheme (CQS) can act on recognises the skill these solicitors bring to the home buying process.

The decision, increasing the value of property where CQS accredited sole practitioners can act for both the customer and the bank

from £150,000 to £350,000, will reduce costs and increase choice for house buyers as fewer transactions will require separate representation.

they can be relied upon to be at the top of their game.

“The CQS accreditation marks a solicitor’s commitment to maintaining the highest standards of skill and service, and the value solicitors bring to an often complex deal,” said Law Society president Robert Bourns.

The change takes effect from today.

“HSBC’s decision shows that those dealing with conveyancers know that when a solicitor is CQS accredited

“It is a welcome change that will benefit both solicitors and their clients.”

HSBC head of secured lending Tracie Pearce commented on the decision: “As well as being a positive move for the conveyancing community, increasing the threshold will also provide greater choice and flexibility for our customers, as well as cutting the cost of buying their new home.”

LEAP 365 - legal case management software to fully integrate with Office 365 Every device, the same information.

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EAP, the leading legal software provider for small law firms, today launches LEAP 365 which enables a lawyer to work seamlessly worldwide on any PC, laptop, smartphone or Mac. LEAP 365 includes automated document production, time recording, billing and client accounting.

• Paperless: LEAP 365 is environmentally friendly by reducing the need for a lawyer to print out copies of documents.

• Service: Because each matter is electronic and each has organised, up to date information that is accessible from wherever the lawyer is from any device, it makes a lawyer’s response time to a client faster, giving a better service.

With LEAP 365 a lawyer can now access upto-date, accounting and matter information from whichever device they are using, from wherever they are. A user can even log on to another person’s device, securely use the system, log back off and leave no footprint. This gives benefits including:

A lawyer could be sat in his/her office completing their day to day activities on their Windows desktop. They then go to a meeting with a client, which they will record time and may dictate some notes on their smartphone (they may even scan documents in while they are there). Once back in the office this additional data will already be synchronised with their desktop. They finish for the day and realise at home they need to send a document, they fire up their personal Mac, log onto LEAP 365, produce the documents they need in the browser and then email them to the client, time recording everything of course.

• Mobility: Work is no longer a place, it is an activity. A lawyer can now capitalise on previously wasted hours out of the office by working on the go.

• Accessibility: Every device. The same information. No matter which device a lawyer chooses to work from; PC, mobile phone, tablet or laptop, he/she will see the same information. Data syncs in real time, allowing instant access to all necessary data.

• Efficiency: LEAP 365 offers lawyers quicker collaboration and communication. When any stakeholder updates information in a matter, that update will instantly be available to all stakeholders.

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Peter Baverstock, CEO of LEAP Legal Software UK comments: “We’re thrilled to be launching our LEAP 365 environment which merges documents seamlessly in Office 365. We have been working with Microsoft directly with this technology. LEAP 365 enables a lawyer to work at any time, at any place and on any device.”

About LEAP UK LEAP is the cloud legal software solution for small law firms wishing to become more efficient, more flexible and profitable. It allows everyone in a small law firm to work naturally using a single integrated system that enables them to do more work with the same number of people. The smartphone app allows lawyers to work whilst on the move, and includes innovative features such as time recording mobile phone calls directly into a matter. LEAP is a global company, originating in Australia where it is the dominant provider of legal software for small law firms. The firm is the largest privately owned small law firm software provider in the world and there are more than 6,000 firms using LEAP software. In the UK LEAP has offices in London, Manchester, Belfast, Bridgend and Edinburgh. www.leap.co.uk LEAP contact details: Tel: 0845 683 2517 Email: info@leap.co.uk Web: http://leap.co.uk

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Cyber Crime ~ What is our exposure?

F or many Law firms across the UK, the first quarter of 2017 will be a time for budgeting and reviewing the opportunities and threats presented to the firm.

One such threat which continues to be reviewed by many firms is the risk of a “Cyber-attack”.

The threat of a Cyber incident is current and it is real. Should you become a victim of an attack it will have a financial impact to your business, so why not hope for the best, prepare for the worst!

Whilst we can’t always predict the future, we can plan and make preventive steps. Dependent on your attitude to risk, the inevitable cost to your business would be either pre-emptive or reactive:Pre-emptive; Cyber Crime Insurance Premium?

IT Protection Cost?

Fraud Prevention Training?

Reactive: Cost of IT Specialists??

Cost of Ransoms through Ransomware??

Cost of Reputational Damage??

Cost of Business Interruption??

Each of the above have a varying financial impact, however it is only the pre-emptive measures that you can financially control.

The fact remains, most Law Firms are dependant on their IT providers to ensure they have adequate security, but do they guarantee support if your systems are breached? Is it complimentary, or would they charge? We have seen scenarios where a firm has to spend tens of thousands on recovery. The effort and, most crucially, the time involved to retrieve, repair and cleanse your system could be severe.

Should you take the decision to transfer some of the risk via a Cyber insurance policy, it is vitally important that you are fully aware of exactly what is covered and, crucially, what needs to happen to “trigger” that coverage. There

are various policies within the market-place, not all necessarily provide the protection the policyholder believes they do.

Certain Cyber insurance policies are structured to offer a suite of breach response services that are so crucial when the firm falls prey to a Cyber incident. The policies will pay for the IT forensic investigation costs needed to determine what information has been compromised and look to remedy the problem. Furthermore, there is also the support of a PR company. They serve the purpose of helping the firm manage any adverse media that may occur – this is becoming far more pertinent in the ever-increasing social media world in which we live.

Access to specialist legal advice should also be available. This will help in the process of deciding whether or not you should notify affected clients, the regulator and the police.

Extending Privilege to the proceedings is vital, as well as preserving evidence for any future criminal investigation.

Look at the period of Insurance and whether it covers prior incidents. Malware and other Viruses can sit in your systems for weeks, months or even years. Have your systems already been breached?

How would you know? Look for retroactive cover. This would give you the comfort that the unknown is covered.

In our opinion relying on your Professional Indemnity to respond appropriately to a modern Cyber-attack may not be the best approach as the policy was not designed to respond in this way. A specialist Cyber insurance policy should be considered and potentially structured to sit as First Response or Primary Layer cover to not only first party claims but also third party, if possible.

Have you asked yourself these questions?:• Are you ready for a breach – do you know how you’ll respond?

• Do you have a Business Continuity Plan and a Cyber Plan – have you tested it?

• Have you considered what to do in the event of a ransom demand?

• Would you know what to do to preserve the scene ahead of any police criminal investigation?

• Do you know how the GDPR will affect your business in 2018?

At the other end of the size scale is the ongoing “phishing” and “whaling” fraud through the use of Social Engineering which continues to burden finance teams in all organisations.

Professional Service firms have suffered heavily from this type of attack vector. This was highlighted by a recent survey undertaken by the UK accountancy firm, Hazlewoods. The survey concluded that “phishing attacks” against professional service firms were up 40% in the past 12 months.

Cover for Cyber theft of money from “phishing” and “whaling”, such as highlighted above, is still available from some Cyber insurers however it is generally sub-limited and remains under review.

With all of these questions, you should be seriously considering purchasing a Cyber insurance policy. At the very least, you should complete a Cyber insurance Proposal Form, as it would provide a good gap analysis to your business.

Lee Catling Vice President, Professions/Risk Solutions A division of Lockton Companies LLP Lee provides day to day guidance on all issues affecting Law firms from PI insurance to other related topics. LC has over 25 years’ experience in the industry having come from the Solicitors Indemnity Fund. Lee joined Lockton, formerly Alexander Forbes in 2003 in the Professions Division and is a Vice President with the Solicitors team. Specialist Experience - Professional Indemnity, Cyber Liability, D&O, Keyman, Contingency Insurances.

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Who Owns a Planning Permission?

anyone simply copy the design on the basis that the act of applying for planning permission puts the design into the public domain and free for all to use?

The first question is easy to answer; a planning permission relates to the land, not the applicant, and anyone can implement it so long as they have sufficient interest in the land, and abide by its conditions. In other words, you cannot own a planning permission, even if you paid good money to make the application.

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nyone can apply for planning permission on any piece of land, whether they own it, lease it, rent it or simply see it from the upper deck of the bus on their way to work in the morning. It is long established that there is no need to have any proprietorial interest in land before making a planning application to develop it.

But once the planning permission is granted, who does it belong to? And can

This much was confirmed in a recent decision of the High Court (Signature Realty Ltd v Fortis Developments Ltd [2016] EWHC 3583), but the court went on to consider the more complicated second question; are planning permission designs in the public domain and so capable of being utilised by anyone who happens to download them from the local authority’s planning portal?.

In the Signature Realty case, the developer did just that – he bought the land in Sheffield city centre, downloaded the planning permission drawings, and proceeded to develop the site for student accommodation on the basis of those plans.

What could possibly be wrong?

The architect, who had created the design which had been used to prepare the planning application, cried foul!

The design was his, he argued, and the developer had no authority to use it, even if it was freely available to download from the internet.

The court sided with the architect: the developer had no implied right to use the planning permission drawings, and in doing so had breached the architect’s copyright in the design.

This case turned upon some esoteric points of law, and in Signature Reality the developer ’s case failed because the party from whom it bought the site was not the party who had engaged the architect to prepare the design and apply for planning permission. But it highlights the caution to be exercised, particularly by smaller developers, or a developer purchasing a site on the rebound from an earlier failed scheme, in taking great care to ensure that it has sufficient rights in the design to implement the planning permission.

Stephen Boyle Senior Solicitor, Commercial Property, Hart Brown Solicitors

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Chancel Repair Liability: Safely Ignored?

Robert Kelly, Stewart Title’s Commercial Business Development Manager considers the ongoing threat of chancel repair liability.

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t a recent seminar, I talked about a claim that Stewart Title paid in respect of a chancel repair liability. Afterwards at least two of the delegates commented that it was a good thing chancel repair liability was no longer an issue. When I asked what they meant, they explained that after the Land Registration Act 2002 changes came into force, their firms didn’t bother with insurance or chancel searches as the church could no longer enforce the liability.

Unfortunately, this is not correct and any firm that fails to consider the possibility of chancel repair liability for all commercial and residential properties is not protecting their clients adequately.

Put simply, after 13 October 2013 chancel repair liability ceased being an “overriding” interest and is only enforceable if it is registered against the registered title or as a caution against first registration in the case of unregistered land. Parochial Church Councils (PCC) did not lose their right to register these interests and can continue to register at any point up to completion of a registration of a transfer for valuable consideration.

This can happen even if you have a clear priority search.

The chance of a PCC registering against your client’s intended property may be remote, but a new owner presented with a large bill for repairs to the church or discovering that the PCC has registered and encumbered the property will

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rightfully be angry and concerned about the advice given by the conveyancer.

Fortunately there is a simple, inexpensive and quick means through which the well advised conveyancer can protect their client and their firms PI insurance.

Stewart Title offers a “No Search Chancel Indemnity” policy which can be ordered at the same time as searches are ordered in a transaction. The policy removes the need to do a “chancel check” search and protects against any possible liability.

Our new easy-to-use ordering application, Stewart Online Solution, allows you to order policies with cover up to £3,000,000 for residential properties and £5,000,000 for commercial properties in three simple steps. Not only is this quicker than carrying out a search, but with premiums starting at £15.06 it is cost effective as well. Policies are available for all residential and commercial properties throughout the UK. For additional information about our policies or Stewart Online Solution please contact me at: robert.kelly@stewart.com or our Telephone Solution Team on 02070107821.

See policy for terms and conditions.

Stewart Title Limited is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. Registered in England and Wales No: 2770166. Registered office address: 6 Henrietta Street, London, UK, WC2E 8PS. © Jan 2017 Stewart. All rights reserved.

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THE HAMPDEN CONSULTANCY Building services (M&E) consulting engineers -----------------------------------------------------Specialisms include: Heating installations Hot & cold water services Chilled water & condenser water services Ventilation & air-conditioning systems (including issues pertaining to operating theatre suite ventilation) Thermal insulation (in respect to its selection & application to mechanical engineering services) Testing & commissioning of mechanical engineering services Maintenance of mechanical & electrical engineering services (or rather the lack of it!)

Preparation & application of contracts or sub-contracts, in respect to both the installation of mechanical & electrical engineering services and/or the maintenance thereof.

Professional negligence claims involving M&E consulting engineers Statutory and/or regulatory compliance issues Design audits Due diligence reports Condition surveys & reports Expert witness reports Acting as a Single Joint Expert -----------------------------------------------------41High Street, Prestwood, Buckinghamshire, HP16 9EJ Tel: 01494868868 Fax: 01494866775 Mobile: 07768497005 E-mail: expert@thehampdenconsultancy.com Website: www.thehampdenconsultancy.com

EXPERT WITNESS SECTION

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LawWare joins the

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he LSSA is delighted to announce its newest member is LawWare Ltd. LawWare is the third legal software firm to join the LSSA in 2016. As the UK’s industry body for legal systems developers and vendors, the LSSA sets and maintains professional standards within the industry and manages areas of mutual interest between lawyers and software providers.

LawWare Managing Director, Warren Wander comments: “Together with the LSSA, LawWare is about to celebrate 20 years in the legal software industry. To mark this key milestone, we are very pleased to join the LSSA to raise our profile even further in the English marketplace and enjoy the benefits of a close association with other likeminded legal technology providers. Over the last 5 years we have experienced tremendous growth and LSSA membership will add greater credibility and weight to our brand.”

LawWare provides practice management technology to hundreds of legal practices in the UK. With offices in Edinburgh and Manchester LawWare improves the efficiency of law firm staff by making it quicker to achieve tasks.

Chairman of the LSSA, Julian Bryan comments: “With its pedigree, LawWare is a very welcome addition to the LSSA membership. We are very much looking forward to working with the LawWare team to help shape the future of legal technology in the UK.”

No deal post Brexit could be devastating for UK's valuable legal sector "The Law Society estimates there are more than 200 foreign-owned law firms in London, including 100 US firms, which might consider seeking a new 'European hub' location if they cease to be allowed access and are denied establishment rights across the EU. This is an extremely big deal for UK PLC. "At present global access to legal services is extremely restricted.

Building barriers to market access to the EU would have a significant impact.

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he UK's £25.7bn legal sector needs a deal from Brexit negotiations that ensures reciprocal arrangements so our lawyers can still practise in EU countries and EU lawyers in the UK - otherwise a significant part of Britain's economy will be put under threat, the Law Society said today.

Responding to a report by the EU Lords Internal Market Sub Committee, Law Society president Robert Bourns said: "As our experts told peers in evidence, 36 of the top 50 UK law firms have at least one office in another EU member state. And UK law firms have a presence in 25 of 27 EU member states.

"Current arrangements under two EU directives are also key in attracting law firms from non-EU states to set up shop in the UK. They do this in part so they can get access to the EU market.

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"'No deal' would raise the prospect of the UK having to negotiate with 27 individual markets and while the mooted Trade in Services Agreement (TiSA) could improve transparency it would not be a liberalisation of market access for legal services."

The peers' report indicates a 'no deal' scenario would leave law firms and others in the professional and business services (PBS) sectors such as accounting facing new barriers to trade in the EU. "We endorse the committee's conclusions that the government should ensure any UK-EU free trade agreement includes provisions on mutual recognition of professional qualifications and regulatory structures," said Robert Bourns.

"Negotiators should seek to include provisions on the rights of UK businesses to establish themselves in the EU and full weight should be given to the benefits of professional services companies recruiting from the EU."

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Simplifying Conveyancing Searches W ith today’s fast-paced lifestyles, time really has become a precious commodity that appears to be in rather short supply. With not enough hours in the day, any way to simplify the things we need to do in life is greatly appreciated.

When it comes to the home-buying process, there does however need to be a fine balance between ensuring that a transaction is handled as swiftly as possible, while providing a conveyancing service that is as thorough as possible.

After all, we all know that a property is the most expensive purchase anyone is likely to make, and therefore it is vital to ensure that clients are fully armed with as much information as possible relating to the property and its surrounding environment – including any potential risks – so they enter a transaction with total transparency.

Homebuyers have come to rely on their legal practitioner as their final ‘eyes and ears’ when it comes to helping undertake the detailed due diligence on matters relating to the local surroundings, including unearthing relevant neighbourhood and environmental intelligence.

Some recent research made some interesting reading however; according to a YouGov survey commissioned by Landmark in 2015, over a fifth of UK homeowners (22%) said they relied on the guidance provided by the solicitor when receiving environmental search reports (in order to summarise the key findings and interpret the risks present in the property they are about to buy).

In contrast, a separate YouGov study

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commissioned by the Know Your Flood Risk campaign in the same year found that only 20% of people actually check their potential flood risk before moving into a new home, despite the much-publicised risks of unseasonal weather patterns.

automatically including such data, clients can assess local planning applications, land use designations, housing and neighbourhood demographics and rights of way, and identify anything which might have an impact on their overall purchasing decision.

With a reliance on the conveyancing process, it is therefore important that the correct searches are offered to clients, to ensure the most thorough research is undertaken. But, with so many available, where should you start?

By combining the data into one order, it makes it easier for solicitors and buyers to assess what risks may be present and what action to take, enabling legal practices to offer total peace of mind to clients. It also meets the requirements of the Law Society Contaminated Land and Flood Practice Notes.

To simplify the conveyancing search process, Landmark has introduced a search called RiskView Residential. This presents the findings previously provided in four separate reports in one single order: • Flood Risk Including groundwater flood risk, surface water flooding, sea and river flood risks • Contaminated Land • Including risks such as radon • Ground Hazards Including subsidence risks or any risks resulting from natural or man-made mines • Energy & Infrastructure Including large-scale infrastructure projects such as construction of the HS2 high-speed rail, in addition to large-scale solar or wind energy projects, plus oil & gas offered blocks.

Not only does it present the findings in a PDF report, it also includes an interactive online ‘map viewer’ as standard. Similar to the Google Earth experience, it offers the chance for clients to ‘zoom in’ on the location of the property and click on potential risks located on or nearby the plot to find out more detail.

In addition, a digital ‘bundle’ is also available which includes planning due diligence. By

This is particularly important in today’s dayand-age, as if a homebuyer doesn’t believe the information was made available or explained to them at the outset, and they later have an issue, there is a risk that they may pursue a legal negligence case against the solicitor.

To avoid such risks, it is beneficial to offer as much environmental, location and property information within the conveyancing process as possible. This approach not only speeds up the transaction process, but closes a compliance gap by removing the need to identify a different suite of reports for each and every transaction.

This approach ultimately simplifies the search process, saves time for all involved and helps to deliver the best client care experience.

Angela Gordon-Lennox Landmark Information For more information visit https://www. landmark.co.uk/report-finder or call 0844 844 9966.

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rom April 2017, all non-household customers in England will be able to choose their water and sewerage retail services provider. This is due to a change in the law under the Water Act 2014, designed to introduce competition into the water industry.

Whilst existing water companies will still own and maintain water and sewerage networks, services including billing, handling customer queries and complaints, and meter reading will be provided by a number of different companies (see www.open-water.org.uk/).

This change will have an impact on the Commercial Drainage and Water Enquiry (CommercialDW). From April 2017, this will affect the answers to the following questions: • Is a surface water drainage charge payable? • Who bills the property for sewerage services? • Who bills the property for water services?

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With surface water, the Enquiry will continue to indicate whether or not surface water discharges to a public sewer. Where such connections exist, a drainage charge may be applicable.

With regard to who bills a property, the existing owner should be in a position to let you know who the current retailer is. A full list of potential retailers is available at www.open-water.org.uk/for customers/find a supplier/ It also means that the current question: What is the current basis for charging for sewerage and water services at the property?

Will be replaced by the question: Is there a meter installed at this property?

All the other information usually contained in your CommercialDW Enquiry will remain as comprehensive as it is currently.

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Articles

Government to Raise Probate Fees

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he Ministry of Justice has recently announced plans for a significant increase in probate court fees from 1st May 2017. The move, following near universal opposition from the legal sector, will raise an extra £250m for the courts, according to the Government.

Under the current scheme, an executor applying for probate pays a flat rate of £215 for individual applications, or £155 if they use a solicitor.

The Government’s proposals will involve the current scheme being scrapped and being replaced with a tiered system, based on the value of the estate.

The probate court fee has been taken away altogether for estates with the smallest value (up to £50,000) but there are considerable hikes in probate fees for all other estates, with fees now ranging from £300 up to a maximum of £20,000 for those over £2m (see table below). The Government argues that the system is fairer on those with smaller estates.

Up to £50,000 or exempt from requiring a grant of representation

£0

£50,001 - £300,000

£300

£300,001 - £500,000

£1,000

£500,001 - £1m

£4,000

£1m - £1.600,000

£8,000

£1,600,001 - £2m

£12,000

Over £2m

£20,000

The legal sector has argued that the change in fees is effectively a death tax, as the assets of the estate cannot be distributed without a grant, meaning the process is compulsory for all bar the smallest estates. In addition, the Probate Registries generally undertake the same amount of work to produce a grant regardless of the value of the assets involved.

As a deceased person’s assets are generally frozen prior to the grant issuing, it is unclear how the executors will be expected to pay the increased fees. The executors may be forced to pay the fees out of their own pockets or by seeking financial assistance in the form of loan until the money can be reclaimed from the residue of the estate, which can often be several months later.

The mainstream banks have informally indicated that they will generally be willing to release funds to pay probate court fees prior to the grant issuing (as they already do for funeral costs and Inheritance Tax) but of course that is dependent upon there being sufficient funds in the deceased person’s bank account(s) to cover the new fees.

The changes will disproportionately affect the regions of London and South East England, which tend to have higher value house prices and therefore a higher proportion of estates paying Inheritance Tax. Furthermore, the Ministry of Justice has admitted that the Probate Registries’ costs are already covered by the existing level of court fees, and the increases will be spent on the wider court system, leading some to suggest the Probate Registries are being used to compensate wider budget issues in the court system.

Another consequence of the changes will be the effect on charities who benefit from estates. It is estimated that charities will lose up to £18m as result of the increased amount being spent on probate court fees.

While it remains to be seen exactly how the policy will be implemented, it is clear that solicitors will now need to be more up front about probate court fees, to be clear with their clients of the fees that will be payable and, where necessary (and possible) obtain money on account before proceeding.

Jane Whitfield Barrett & Co Solicitors LLP Reading

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