Biblio Issue 6

Issue 6 - Autumn 2018

Biblio Berkshire • Buckinghamshire • Oxfordshire Incorporated Law Society

2018 EWI Conference Report

Expert Witness section starts on page 14 In this issue: Testamentary Capacity - A Brief Checklist • An Ever-Changing Risk Landscape & more...

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Issue 6 - Autumn 2018

From the President...

Berkshire Buckinghamshire Oxfordshire Incorporated Law Society Magazine

On Friday the 12th October, I had the pleasure in attending the Past Presidents’ Annual Lunch at Phyllis Court, Henley upon Thames. Thirteen of us were booked in for the event which included three retired Judges and a semi-retired Coroner. We were in a more intimate room which was conducive to discussion and I think everyone enjoyed being there. We shall be considering the rising cost of the venue and lunch as we are concerned that many who would be there may have been deterred.

Contents

Part of the President’s role is to perambulate and meet with other Local Law Societies and attend events they hold. One such was at Cambridge which held a meeting with Liz Frazer QC MP Parliamentary Under Secretary of State at the Ministry of Justice.

A hot topic was the policy on Court closures. About one-fifth of the Ministry’s budget is spent on buildings. Many are Listed which increases costs of maintenance. There will be more closures in order to control the budget and redirect funding to other areas perceived to be in greater need.

We would be interested to hear from practitioners encountering significant issues whilst at Court.

Training is being planned to help us prove that we are equipping ourselves with the knowledge and skills to perform our daily work and details will be published on the Website and through emails so keep a look-out for those courses suitable to your areas of practice. Remember the change in the regulations have a sting in the tail. We must be able to prove our professional training.

Biblio is an opportunity for you and members of your firms to contribute articles which will be of use to the profession or to notify people of new partners and specialities. I would encourage firms to ‘sell’ your expertise to the profession. Some 22% of all law firms in England and Wales are sole practitioners and will need to be able to refer clients to lawyers with required expertise.

The same applies to those who cannot offer a full-service. This will be a significant number.

Also please let us know of vacancies as the cover is wide and it may help.

Best wishes,

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From the President

4

Committee Members

6

Testamentary Capacity, a Brief Checklist

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Local News

8

Thames Valley lawyers put guests in pole position

10

BB&O Membership Application Form

12

Booking Form

14

EWI Conference

18

How can you really be heard?

20

Remember A Charity week

23

Add Philanthropy Services to your team

24

Has your law firm found professional indemnity insurance yet?

28

An ever-changing risk landscape

30

Mediation: what is its secret?

32

New proposals for ethnicity pay reporting

34

Resilience, yes, but for whom?

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HCR advises Channel Mum on £3m venture capital funding

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Quill’s revived trainee scheme

Front Cover: Sir Ernest Ryder addresses the EWI Conference

Simon Stone President, BB&O Law Society 2017/2018 Published by:

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Berks, Bucks & Oxfordshire Incorporated Law Society

Committee 2017-18 President Simon Stone Kingsley David DX 45801 Woburn Sands simonstone@kingsleydavid.com Vice President Jane Whitfield Barrett & Co DX 4033 Reading Email : jane.whitfield @barrettandco.co.uk Immediate Past President Cyrus Medora Kidd Rapinet DX 42269 Slough West CMedora@kiddrapinet.co.uk

Buckinghamshire Richard Sauvain Parrott & Coales DX 4100 Aylesbury richard.sauvain@parrott& coalesllp.co.uk Roderick McCulloch Reynolds Parry Jones DX 4407 High Wycombe roderick.mcculloch@rpj.uk.com

Oxfordshire Tracy Norris-Evans Royds Withy King DX 4314 Oxford 1 tracy.norrisevans@roydswithyking.com Richard Coleman Royds Withy King DX 4314 Oxford 1 richard.coleman@roydswithyking.com Special Members

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

Council Members Razi Shah Appleby Shaw DX 3830 Windsor rshah@applebyshaw.com Nawaz Khan Abbott Forbes Council Member DX 45410 Cowley nawazkhan.gb@gmail.com

Local Authority Solicitors Nick Graham Oxfordshire County Council DX 4310 Oxford Local Authority Solicitor Nick.Graham@Oxfordshire.gov.uk Administrator Denise Green BB&O Law Society Shelton House, 4 High Street, Woburn Sands Milton Keynes MK17 8SD admin@bbolawsoc.org.uk

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ARTICLES

Testamentary Capacity, a brief checklist

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n aging population combined with a propensity for claims is going to result in some awkward moments and nasty consequences if as practitioners we do not always properly assess testamentary capacity. Let’s go back to basics:

• Use or weigh that information as part of the decision making process; and • Communicate the decision by some means.

This is still good law. There are three aspects to the test for capacity:-

Assessing Capacity Ask open questions not ones that require simple yes or no answers.

Engage in polite chit chat and assess as you are going along. Keep notes of questions and answers. It is to be understood that as we get older we may be more forgetful. Don’t make snap judgements.

1. Does the testator (T) understand the nature of the Will and its effect?

2. Does T know the extent of their estate being disposed of by the Will?

3. Is T aware of those who would usually be expected to receive benefit from the estate and is he free of any delusion of mind that may prevent him benefiting those people?

Consider carefully the result of your assessment always remembering the Golden Rule. If you are in doubt about capacity do not just proceed but consider if it is in the client’s interest to continue. Inform them of your concerns and the consequences of challenge. Get clarity on whether the client wants to continue.

I recommend that you prepare an Instructions Form where you can capture the information you need to prepare a Will. Include questions to establish the Banks v Goodfellow tests.

Consider meeting the client at a different part of the day such as midmorning when they might be better after a good night’s sleep.

Banks v Goodfellow (1869-1870) LR 5 QB 549

With regard to point 2 please note that T does not need to account for every penny.

We often face a situation that a family member is telling us what the testator wants and it is important to see the testator privately to help you make assessment and then perhaps later with family present if that is what the testator prefers.

The “Golden Rule” Re Simpson (1977) 121 SJ 224 established the Golden Rule that an aged or ill testator making a Will ought to have the Will witnessed by a medical practitioner who will have to be satisfied as to the capacity and understanding of the testator and records and preserves the examination or findings. For me this is evidence that the Judge has not written a Will for a client but I understand what is being sought.

Your File Make sure your file has all the relevant notes and why you have come to your assessment. If there was a court challenge, think of the Judge and what information he or she may need. Not only would your notes help a Judge but they may also prevent your firm being held negligent.

I would also advise a client that if there are elements of the family or other potential beneficiaries who are going to be upset that they do not get what they want or expect and who might want to create a fuss, that to hopefully head-off a claim about capacity they ought to have a medical opinion.

Have a standard letter for the medical practitioner that helps them to understand the issues to be considered. I have seen one from Practical Law and there is one prepared by the Law Society and the BMA available from the Law Society’s On-line Bookshop.

Mental Capacity Act 2005 Fischer v Diffley (2013) EWHC 4567 (Ch) is authority that this Act goes further. The Act states that a person is deemed to lack capacity if at the material time he is unable to make a decision because of an impairment of, or a disturbance in the functioning of the mind or brain. Whether capacity exists or not is assessed on the balance of probabilities.

Section 3(1) of MCA 2005 states that a person is unable to make a decision if he is unable to: • Understand the information relevant to the decision; • Retain that information;

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(This article is not definitive but meant as a reminder of the important issues.)

Simon Stone Senior Partner, Kingsley David Solicitors Milton Keynes.

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NEWS

Local News Blandy & Blandy LLP Advises Reading Buses on Latest Acquisition Tony Pettitt said: “We have been looking at ways of strengthening and expanding our network and after the recent success with our Green Line and Thames Valley services to the east of Reading we realised we had a great opportunity on our own doorstep.

Blandy & Blandy LLP’s Corporate team, led by partner David Few and assisted by solicitor Stuart Rose, has advised Reading Buses (Reading Transport Limited) on its acquisition of Newbury and District Limited.

Explaining that the deal to acquire Newbury and District, which has operated routes in the area since 1932, Reading Buses’ interim CEO

As they have many times in the past, Blandy & Blandy once again provided us with appropriate advice and support on a wide range of potential issues, helping us to complete the acquisition of local bus operator Newbury & District.”

Few, who has advised Reading Transport for more than 30 years, commented: “I am very pleased to have worked with Reading Transport since 1985 and to watch the company continue to thrive and grow. It is without doubt one of the leading and most respected bus operators in the country, evidenced through its success and a series of awards.

Advising on a range of areas, we look forward to supporting Reading Transport’s continued growth and to working with Tony, new CEO Robert Williams and the team.”

The companies, which together have more than 600 employees, have worked closely together for many years, operating the Jet Black 1 route between Reading and Newbury. Reading Buses has also successfully run the Kennections network under contract to West Berkshire Council since September 2016.

A finalist at the 2017 Thames Valley Deals Awards, Blandy & Blandy’s Corporate team is highly recommended in the UK’s leading guides to law firms, Chambers UK and The Legal 500.

David Lamont

Blandy & Blandy LLP Attends European Conference firms in over 50 countries.

We also work closely with individuals and businesses looking to invest or do business in the UK.” Approaching its 30th anniversary, the Law Firm Network is recognised as a leading international network in Chambers Global Guide. The Network consists of more than 50 independent law firms around the world.

Recent conferences have taken place in cities including New York, Zurich, Milan, Thessaloniki, Singapore, Bucharest and Moscow.

Employment Law, working with in-house counsel and of course Brexit were the hot topics at the global Law Firm Network’s EMEA Conference in Prague.

Partners Tim Clark and Nick Burrows represented the Network’s UK member firm, Blandy & Blandy LLP, at the three day event hosted by Czech member firm LTA – Legal Tax Audit. Clark was a member of the panel for the

session on Employment Law. Nick said: “Membership of the Law Firm Network is of tremendous benefit to our clients who operate overseas, enabling us to recommend them to trusted

In 2016 Blandy & Blandy welcomed fellow member firms to Reading, with conference speakers representing leading organisations including United Overseas Bank, KPMG, Clearswift, Cushman & Wakefield and the University of Reading.

The next EMEA conference will be held in Ireland, coinciding with the UK’s planned Brexit.

David Lamont

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NEWS

Thames Valley lawyers put guests in pole position

M

ore than 45 guests enjoyed Harrison Clark Rickerbys’ hospitality at its Green Park base for a summer reception, including a chance to win tickets to watch a Grand Prix at the Williams Conference Centre near Wantage, including a tour of the museum there.

Tess Eagles of the Me2 Club, to which the firm gives on-going support, spoke about the work of the charity, based at Wokingham, near Reading, which supports children and young people with additional needs and disabilities, aged between five and 19, to attend mainstream activities.

Rob Lynch, head of the office, said: “It was lovely to welcome our clients and guests to our annual summer drinks party at Zest Restaurant and also to hear Tess from The Me2 Club, our nominated charity, give an impassioned speech on the invaluable work they undertake.”

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MEMBERSHIP

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training

Blandy Latest Acquisition Blandy & Blandy LLP’s Corporate team, led by partner David Few and assisted by solicitor Stuart Rose, has advised Reading Buses (Reading Transport Limited) on its acquisition of Newbury and District Limited.

Explaining that the deal to acquire Newbury and District, which has operated routes in the

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aRTICLES

Berks, Bucks & Oxfordshire Incorporated Law Society Lecture Booking Form Please state number of tickets required with names of those attending and whether members, trainees or non-members. Please also provide your email address.

Date: 26th November Mbr/Trnee Non-Mbr

Lecture: Conveyancing Law Update

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EXPERT WITNESS

Experts under the Judicial Microscope:cases, commentary and criticism The Expert Witness Conference was held on 27th September 2018 at Church House, Westminster, London SW1.

A review by Elizabeth Taylor and Phillip Taylor MBE of Richmond Green Chambers

Amanda Stevens, Conference Chair disappoint! You can read his speech in detail on the judiciary website.

I

t was another first-class expert get-together which took place at Church House, Westminster in September 2018.

Our leading experts from the Institute met to have a natter and be briefed on new case law from colleagues, judges and lawyers. This time the theme was specifically about “judges under the microscope” and it was wellattended by EWI members eager for the legal updates which are now an annual feature of the Conference.

Chaired as amiably and effectively as ever by Amanda Stevens from Hudgell Solicitors, the keynote speech was delivered by Sir Ernest Ryder, Senior President of Tribunals. He reviewed how experts assist the court process in their respective role. Sir Ernest did not

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All photos © www.jampondphotography.com

Attendees took the point that judges in future will have a much stronger lead role in the management of contentious cases from the outset. Then, an entertaining, but equally serious, presentation from Andrew Ritchie QC on “expert evidence and the seven deadly sins” giving us a quick trip round recent decisions with the theme of the seven sins which we won’t remind you of.

engagement, membership support and the Expert Certification programme were useful updates for members.

Later sessions covered a presentation on EWI Singapore with contributions from Sir Vivian Ramsey, Dr Thomas Walford and Chris Easton. The event concluded with the usual

The session was heavy on detail (but not too heavy) and delivered with that lightness of touch we expect of a silk with well-devised PPP slides, and Andrew stayed for the Q and A afterwards with useful information from Mike Napier.

Sir Martin Spencer gave an important speech after one year as EWI chair. A challenging time with EWI staff changes and Martin’s new job as a High Court judge on circuit which he spoke frankly about- his speech will also be available on the EWI website. He talked also of the exciting developments with EWI in Singapore – a recurring theme during the day. The continuing importance of member

Andrew Ritchie QC

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EXPERT WITNESS

beyond for his indefatigable support in some many areas of legal controversy. Louis was a leading figure throughout his life, called to the Bar at Middle Temple, and he with played a major role in the EWI, the Press Council and Amnesty amongst others. He was a founder of Doughty Street Chambers and will be greatly missed by all.

lively “questions� session which have become an important feature of EWI Conferences in recent years led by Dr John Sorabji with some most realistic views on the development of certification from Sandy Mackay whom we were able to chat to earlier during the lunch break as he explained the need for change.

The sad passing of Sir Louis Bloom-Cooper (1926-2018) was announced. Louis, known to many throughout the legal world and

EWI members will meet in September 2019 in the post-Brexit British era so keep that date in your diary. EWI Conferences remain an excellent day out to update both experts and lawyers which you cannot miss.

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EXPERT WITNESS

Sir Vivian Ramsay

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P Taylor and J Sorajbi in conversation

Dr John Sorajbi

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EXPERT WITNESS

How can you really be heard?

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t is only natural for people to want to be heard, and that is particularly true when they have a dispute.

We all know about people having disputes, personal as well as in business. It’s always the same; we are certain the other side doesn’t care to listen to our well-reasoned arguments, to our cool assessment of the situation, to our reasons why everything is their fault and not ours. And, sure as eggs is eggs, the other side usually feels the same way about us. And the louder one of us shouts at the other, the less chance that we will be heard. So then what?

Your day in court Human emotions are present whether the dispute is between individuals, partners or even companies. They all involve people, and it is only natural that views become fixations when they are not resolved.

Fixations often lead to a breakdown in communication, where both sides believe that if they could only have their ‘day in court,’ a judge would see that they were right all along.

But it rarely works out that way, as lawyers know only too well. When the day of the court hearing finally arrives, after months or even years of waiting, court procedure is formal and constraining; no-one has the chance to have a good shout at the enemy.. No-one listens to what the aggrieved party really tries to say, and the unemotional, impersonal atmosphere of the courtroom seldom gives either party the satisfaction of knowing that their complaints have been heard or understood.

Of course the court has a role if a dispute cannot be resolved in any other way, but one has to accept that a court can normally only find for one party and award an amount of money. One party walks away the winner, with an award of damages and (most of) their costs, and the other is the loser, leaving blood on the carpet. That can be catastrophic. And any chance of a future relationship, business or personal, is destroyed.

This ‘day in court’ comes

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only after months of waiting, and many hours spent with lawyers on witness statements and other procedural matters, when the disputant would be better employed in running their business, or perhaps spending more time on the golf course. And legal proceedings can be very expensive; I have often started mediations where the legal costs to date are significantly greater than the amount in dispute when the saga started!

I often refer to litigation as dancing with a gorilla, where the dance stops only when the gorilla decides to let go. Not sensible; there has to be a better way.

There is an alternative By contrast, mediation is more flexible and offers a greater freedom of expression than a court hearing. It has many other advantages: • speed; • far lower cost; • no risk of paying the other side’s costs; • you can choose a mediator with relevant experience rather than the luck of the draw with a judge; • you can speak without prejudice; • there is no publicity; • you can agree things which a judge could never award; • and, most importantly, you will reach a settlement only if both sides can live with it. If mediation fails, you can still have your day in court, with all rights exactly as before.

But what about the four-pennorth you intended to give the other side at a court hearing? Here is some good news: mediation actually provides a better forum for letting off steam! A judge will never allow a slanging match in his court, but I have often conducted mediations where the parties so hated each other that at first they refused to sit in the same room. At the first caucus, they have sounded off to me about their “enemy” in words quite unrepeatable. This is known to American mediators as “spilling the bile”. I’ve listened, apparently with sympathy, but let the emotions run, and then got down to the business of finding common ground which

has led to settlement. And after the rant, the party involved has felt far better about things, and in the right frame of mind to settle matters. It really is a fascinating process, to see how attitudes change after a good shout!

So each side has ample opportunity to be heard (after the rant!) and to hear the other side in turn. No third party imposes an outcome, as with litigation or arbitration, and both shape and agree the settlement, which can involve lots of things, not just money.

It is really satisfying to see parties who have been at loggerheads for years looking at the matter constructively, and reaching that precious settlement which has eluded them for so long. Whilst a very small number of disputes may not suit mediation, it is usually hugely successful; my record after more than a hundred

mediations is that 80% have settled, even including those where the parties started by refusing to sit in the same room.

The satisfaction of a fair outcome is far rarer at the end of a court hearing, and the parties didn’t even have their chance to shout at the enemy!

So a day at mediation can be so much better than a week in court. You have a much better chance of being heard!

Chris Makin was one of the first 30 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness.

He is also an accredited civil & commercial mediator and an accredited expert determiner.

He has given expert evidence at least 100 times and worked on a vast range of cases over the last 30 years. For CV, war stories and much more, go to his newly relaunched website – with videos! www.chrismakin.co.uk

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training

Tracking study indicates steady rise in legacy giving

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CHARITY

Legal sector joins forces to celebrate Remember A Charity Week speaking to the public about their final wishes – feel confident raising the issue, the risk is that good causes can be forgotten.

He continues: “Remember A Charity Week is a chance to celebrate the huge impact of charitable bequests and ensure all clients are aware that they have the opportunity of leaving a gift in their Will, no matter how large or small.”

Solicitors and Will-writers are encouraged to help raise awareness of charitable bequests, informing relevant clients about how they can include a charity in their will.

legacy giving to clients, displaying campaign materials in their offices.

T

his September, the legal profession is joining forces with over 200 charities to raise awareness of gifts in Wills and making clients aware that they have the option of doing so. Although only around 6% of estates currently include a charity in their Will, legacy donations generate over £2.8 billion1 for good causes annually, funding vital services across the country.

Remember A Charity in Your Will Week (1016 September 2018) celebrates the impact of legacy giving and highlights the critical role of the legal profession in making clients aware of the opportunity of leaving a donation in their Will, after taking care of their family and friends. Solicitors and Will-writers within Remember A Charity’s network of 1,400 legal supporters will promote the concept of

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According to Remember A Charity’s latest solicitor and will-writer benchmark study2, six in ten advisers sometimes or always mention the option of including a charitable gift to willwriting clients, but the potential is far greater.

The campaign describes these conversations as ‘critical’ with research from the Behavioural Insights Team showing that the legacy giving donation rate doubles when solicitors ask clients if they would like to consider leaving a charitable gift.

Rob Cope, Director of Remember A Charity, says: “Charitable bequests have shaped much of the world around us, with education programmes to medical research, schools and emergency services all having been funded directly by gifts in wills. Simply by including charitable donations in will-writing discussions, this can have a critical impact on donations, while enabling the public to ensure their final wishes are met.

“As it stands, not all legal advisers are completely comfortable talking about legacies with their clients and that’s something that we’re hoping to change. Unless solicitors – those who are at the frontline when it comes to

2018 marks the ninth year of Remember A Charity Week, during which charities, government and stakeholders will all come together to highlight the importance of legacy giving. The campaign’s consumer awareness drive features the launch of a new ‘charitypowered’ search engine, called ‘Human’.

Combining charities’ unique knowledge and expertise, the search engine enables the public to select from over 100 of life’s biggest questions and to hear directly from charities, supporters and beneficiaries what they are doing in response. Questions include ‘How can we cure the deadliest common cancers?’ and ‘How do we ensure no one has to sleep rough?’

Cope adds: “This campaign has been designed to showcase just how vital charities are in responding to many of the world’s biggest problems and how legacies can help combat those issues. We hope that it will encourage the public to think about their deepest concerns for the world we live in and to consider leaving a gift in their will.”

Smee and Ford, Legacy Trends 2018 Future Giving, Professional Will Writers Survey 2017 1 2

To find out more or join the existing network of 1,400 campaign supporters visit www. rememberacharity.org.uk.

FINDING YOUR VOICE IN TODAY’S DIGITAL A ND PRINT MEDI A

Maritime House, Balls Road, Birkenhead, Wirral CH43 5RE 0151 651 2776 www.eastparkcommunications.co.uk

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Articles

Add philanthropy services to your team

T

he best advice is given to clients expert professional teams. A community foundation’s specialist knowledge of the charitable sector in their local area can make them a key member of your client team.

Research by Philanthropy Impact has shown that only one in five professional advisors offers any philanthropy advice. 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.

Your local community foundation can complement your service to clients by sharing ideas and examples of a proactive approach to charitable giving. If you need help advising your clients on how and when to give their money, you may need to look no further.

The big-hearted client Jane Mactaggart has charitable giving in her blood. Her father was a successful property builder in Glasgow, and encouraged all of his children to be community minded.

Now she works with her local community foundation to give to a selection of local charities.

For clients like Jane, community foundations offer an alternative to a private foundation, without the responsibilities of governance, as well as access to the local organisations addressing the issues they are most concerned about.

It can also be an ideal solution for individuals wishing to give confidentially.

The strategic client David Harding is CEO and founder of Winton, a global investment management company.

He and his wife Claudia worked with Oxfordshire Community

Foundation (OCF) to add a local element to their extensive portfolio of charitable giving.

For clients like David and Claudia, community foundations can provide innovative matchfunding schemes that boost the value of their initial gift, and charitable impact in perpetuity via a permanent endowment.

Those wanting national coverage can access a network of 47 similar foundations UK-wide.

Bereavement and legacies Community foundations can also help clients like Bob and Kati Evans, who set up a memorial fund for their daughter Maggie after she died tragically aged 29. The named fund structure provides a home for the funds within an established infrastructure that is endorsed by the Charity Commission. The Evans say of their experience: “Our daughter’s fund makes grants that help children discover literature. In this way, Maggie herself has inspired others and shared the things that she loved – such a fitting way to remember her.”

Other clients may be considering their will, and be concerned that the charities they support now may not exist or be relevant in the future. Leaving funds with a community foundation creates a genuinely lasting legacy, with assistance available to executors or solicitors to distribute funds in accordance with a client’s wishes.

Because community foundations have live knowledge of the most

pressing social problems of the day, this type of legacy has a guaranteed impact, regardless of changes to the social or charitable landscape over time.

complement to my firm’s own services.

It’s made such a difference to have a philanthropy expert on the team – and OCF make the whole process hasslefree and human for clients.”

Genuine collaboration Community foundations are used to working directly with a client’s trusted advisor if you are acting on their behalf. We can make introductions to others we’ve helped, sharing learning and ideas, and help you integrate philanthropy services into your own client offering.

Note that community foundations cannot give financial or legal advice, and always recommend that clients have a detailed conversation with their professional advisor before making any decisions.

Steve Marker, Director and Chartered Financial Planner at Hansford Bell, comments: “The service that community foundations offer is the perfect

To find out more about philanthropy advice, contact your local community foundation: • Berkshire www.berkshirecf.org • Buckinghamshire www.heartofbucks.org • Milton Keynes www.mkcommunityfoundation.co.uk • Oxfordshire www.oxfordshire.org

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www.bbolawsoc.org.uk

ARTICLES

If your law firm still hasn’t found professional indemnity insurance then you shouldn’t worry – providing you act soon. Here’s what you should do.

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hose firms that still haven’t got insurance by now will broadly fall into two categories: those who expect to renew their cover easily, and those who are already encountering issues.

If you haven’t started looking for cover Some of you simply might not have got round to doing it yet. That’s understandable, but although the 1 October renewal deadline might look a long way off you do need to start the process now otherwise you might not get the best deal.

The PI market continues to be competitive, so if your law firm hasn’t suffered claims recently and isn’t deemed to be a higher risk then you should find a new policy relatively simply.

At the moment, we’re seeing some smaller law firms with fewer than six partners paying lower premiums than last year, while prices remain steady for larger practices. But you shouldn’t wait any longer. Here’s what you should do: • Prepare and submit your proposal forms now. It’s worth taking your time over these if you want to make a good first impression. Thousands of law firms are looking for insurance right now from fewer than 20 insurers, so your

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proposal needs to persuade them why they should choose to cover your firm over many others. (For more tips on this request a copy of our guide to PI insurance) • Get an up-to-date claims summary for the past six years. This is essential for underwriters, so if you haven’t already received one from your existing insurer then you need to get it ASAP. • Test the market. You might be perfectly happy with your insurer, but it’s always good to know you’re getting the best terms available. It’s worth asking a few brokers to send your proposal to other underwriters to see how they respond.

• Hit the right targets, not every broker will have direct access to every insurer, so you may need speak to a broker that has a broad direct access to the insurance market to ensure it can get you a full range of quotes. Speak to a broker with a strong track record in solicitors’ PI who can advise you on which are the best insurers for your firm.

If you have started but are having problems If your law firm has already sent off its proposal forms and either hasn’t heard back from insurers or you’ve already been turned down, then you shouldn’t panic,

but you do need to address the underlying issues urgently.

Here’s what you should do: • Do you know why you’re having problems? It might be as simple as you’re approaching the wrong insurers or you haven’t included the right information in your proposal. Ask another broker to give you a second opinion on whether your approach is correct.

• Tackle your problems. If insurers have explained to you why they won’t offer you cover then you need to address their concerns. Don’t think that if you approach enough insurers then one will be bound to offer you cover. Einstein said you shouldn’t keep doing the same thing over and over and expect a different result.

Chances are that if your proposal sets alarm bells ringing at one insurer then it will do the same elsewhere.

To convince wary insurers to cover your practice you must reassure them that you’re a risk worth taking. If your firm has suffered a claim then you need to explain what happened and what you’re doing to solve that problem. Contrary to opinion, insurers do understand that mistakes happen. But they want to know you won’t keep making the same mistakes. A good broker will help explain where you’re going wrong and how to develop a strong pitch that will help change underwriters’ minds.

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

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

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

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

• Interaction. Delegates are encouraged to contribute to discussions which helps them benefit from shared knowledge about the industry, legislation and products available to them.

• Real-life scenarios and case studies are an excellent way to apply learning back in the workplace and show what solutions are available for particular situations.

• Event takeaways. Event organisers usually give participants a copy of the presentations and examples discussed to help embed learning when back in the office.

• Networking. Events provide the opportunity for delegates to network with one another as well as the presenters, extending the learning potential.

• Mix it up. Cover a number of areas and topics in one fell swoop by attending a CPD event which features a mix of different topics.

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

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

www.bbolawsoc.org.uk

advertorial

An ever changing risk landscape…

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he risk landscape law firms are faced with today continues to grow and evolve, and the regulatory regime along with new legislation play their part too. Like many modern businesses, law firms are becoming increasingly more reliant upon technology, whether to improve connectivity with clients, to improve processes and efficiency, to help mitigate risk through the use of case management systems, or to access things on the go. This means the cyber risk to the legal profession is on the rise.

Only banks or financial institutions have greater sums of money passing through them than the legal sector. When you also factor in the amount of highly confidential information passing through law firms, it is no wonder that the Legal profession is a target for cyber criminals.

While the SRA requires law firms to carry an appropriate level of coverage to protect their clients, there is no consideration as to what coverage will protect the law firm itself.

The Legal Profession of England and Wales have one of the broadest policy wordings in the professional indemnity marketplace, yet despite this breadth of cover it is important to appreciate that PII cover provides third parties (generally a law firm’s clients) with protection in the event of an error act of omission. PII is not designed to provide first-party coverage e.g. business protection.

Whilst Professional Indemnity Insurance should respond to a “Friday Afternoon Fraud”, “Phishing”, and other types of social engineering to put your clients back into the position they were previously, PII will not respond to all of the cyber risks that the legal profession is faced with today.

Some of these risks include but are not limited to: • Denial of access to your systems – A DDoS (Distributed Denial of Service) attack prevents any connection to the internet and is increasingly combined with malware that corrupts the corporate network data.

This is where the criminals have scanned the vulnerabilities remotely and found many weak points. They identify that the business relies on always being connected to the internet. The then use ‘exploit kit’ to bypass off-the-shelf firewalls and anti-virus protection. The cost to the criminal is modest compared to the prize of the ransom that

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people will pay to get their business up and running again.

• Loss of client data - Could result in fines or penalties being imposed by regulators such as the SRA or ICO, which given the new powers of the ICO could cripple a firm but if the financial impact of the fine did not, the reputational harm could be irreparable.

• Impersonation - An average-level criminal will be able to manipulate your clients or member of staff quite easily because it is brutally effective for their aims and it really undermines the trust they place in you. This may happen because you do not have encrypted communications, or a protected website that has security certificates or email controls e.g. DMARC, or perhaps you allow private emails on home computers. There are many examples of these and most remain unreported in the public domain. You need to be available to your clients, but it’s worth noting this can encourage them to trust non-secure interaction.

• Reputational harm following the spread of a virus. A law firm may be liable if found to be the cause of transmitting malicious code to others.

It is important to appreciate there is always a human being at the other end of a cyberincident. The level of sophistication adopted increases along with the ability of the malware that they may use. This is now a big business and it shares many characteristics with established commercial ecosystems – there are sales pipelines, money transfer services or “money mules” and some markets on the dark web looks like Craigs List or Ebay style shopping sites to cater for all types of nefarious intent. The patience that these criminals are willing to show means that we need to be on our guard at all times.

The level of success that they can achieve is largely down to the core security controls you put in place. A number of controls will not be too difficult or expensive to put into place either. It is however imperative that you do not rest on your laurels and you evaluate your security control with some level of frequency.

It is important to understand that outsourcing IT functions does not mean you outsource your responsibility. You are still a data controller and there is no system available, however robust it may be that will be 100% secure, as the cyber incident at the Pentagon revealed. If you do outsource your IT function, it is important to understand how much support can and will they provide to you in your hour of need, after all response times are key to mitigate the damage but also as there is only a finite window to meet your regulatory obligations.

You cannot expect clients and staff to identify all of the fake emails during the course of daily business, and trying to understand how the hackers were able to monitor and intercept the email traffic is, at this point, of secondary concern. The single most powerful way to combat this is to create a unique link between the index numbers and the plain text name of your email domain (what appears after the @ sign in an email) to prevent such impersonation. This type of authentication is already available with the free to use DMARC control, therefore we encourage every law firm in the UK to engage their IT team or service provider in discussing this topic further after which I think it is prudent to explore what insurance is available to support your business. Also, as a fairly recent development, some banks are now requiring DMARC controls across their entire supply-chain and some insurance companies are asking for it too.

There are many cyber products available, which vary quite considerably in the scope and quality of cover they can offer.

Lockton is an independent broker and has access to the wider insurance market but we also have a suite of products that have been designed specifically for the Legal Profession of England and Wales.

This includes a product called Inter Lock which is the only fully-integrated solution combining your SRA-approved PII policy with regulatory defence cost, cyber and first-party crime coverage.

There is no regulatory requirement to do so, so why should you look into this?

If you were going on a driving holiday or expedition would you do so without break down cover in place? If not why would you run your business without appropriate business owner ’s protection in place that can protect your cash-flow and reputation? A good Cyber policy provides you with access to the appropriate experts to minimise the damage, help you identify and rectify the problem but perhaps most importantly getting your business operational swiftly.

What is clear is that risks are guaranteed.

Protection, however, is optional and you can’t assume a cyber attack will never happen to you.

by Brian Boehmer If you’d like to learn more about Inter Lock or speak to a member of our team please email solicitors@uk.lockton.com or phone 0330 123 3870. Visit www.locktonsolicitors.co.uk for more information.

www.bbolawsoc.org.uk

training

Tracking study indicates steady rise in legacy giving

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9 APRIL 2018 – LONDON, UK – Over a quarter (27%) of charity donors are preparing to leave a charitable legacy or have already done so (up from 23% in

The research also indicates that awareness of legacies is growing, with just 1

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www.bbolawsoc.org.uk

ARTICLES

Mediation: what is its secret?

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he majority of mediations result in a settlement, either on the mediation day or shortly thereafter. So, what is mediation’s secret?

Here are five reasons why it may work.

(1) Getting together Mediation may work because it gets everyone together.

It is rare in litigation that everyone who matters in a case is present in the same building at the same time.

By mediating, parties agree to make this happen and that the people who can make a difference will book the day out of their diaries and make whatever travel arrangements are necessary so they can attend.

More than this however, mediation gets everyone thinking about the same thing at the same time: the dispute and how to resolve it. It creates the opportunity and the window for people (including some who may never have considered the case in any detail before) to look carefully at the papers and what others are saying – both in the time leading up to the mediation and on the day itself.

Of course each party also, on the day, meets with the mediator. Such meetings allow people to share their thoughts and fears about the case with this neutral third person who, without advising, uses their experience of litigation and the legal points to challenge positions and explore risks.

Not only this, some or all of the people from each party may also get together on the mediation day. Some may have never met before. Some may have once shared a cordial relationship. During such direct meetings, people may air their legal or factual points. There may be a useful sharing of views, including about what may happen if there is no resolution. The simple act of

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meeting may break down barriers or dispel an impression that has been formed. It may mean something can be explained from someone’s perspective and heard from another person’s perspective. All of this may open the door to a deal being found, perhaps at the very same meeting or shortly after.

(2) Formal but flexible Mediation may work because it is formal but flexible.

Mediation is a formal process in that there is a mediator who is appointed on certain terms, a mediation agreement and, if resolution happens, a signed settlement agreement. Such formality gives parties comfort that the mediation is taking place in a certain context and with agreed ground rules.

Often it also brings home the fact that being involved in a dispute is a very serious thing and that, unless settled, that dispute is unlikely to just go away.

Mediation is however a marriage of formality and flexibility. Parties may agree that other connected parties should all join one mediation (or co-mediation with two jointly appointed mediators). As there is no prescribed procedure, it may be agreed that just the lawyers or just the decision makers will meet to try to move matters forward.

Parties may agree there is a practical solution to the problem which everyone can live with. All of this means that each mediation can be shaped to suit the particular dispute in hand.

(3) What’s new?

Mediation may work because parties hear and see new things.

Often mediation takes place early on. Sometimes, proceedings have not been issued. Sometimes, disclosure has not taken place. As a result, it is not uncommon for people to learn new information or see new documents. Sometimes

what seems new is simply a better or more detailed explanation, perhaps directly from a potential witness. All of this can help parties understand issues and assess risk.

(4) What else?

Mediation may work because it allows parties to pause and contemplate more than just their legal points.

Parties may think about the time they will need to take out of their lives or businesses to progress the case or that the outcome of a trial may be reported, in the legal press or more widely. They may calculate how much it will cost to get to a trial and the price of wining or losing. They may consider that they would like to try to retrieve a business or personal relationship, or build new ones. All of these wider

points may feature when a party is negotiating a deal.

(5) A short time Mediation may work because, whatever the length of any trial, it asks people to try and come to a deal within a certain limited timeframe. A ticking clock often focuses minds on the points that really matter to people.

Conclusion Although all mediations are different, these five reasons are certainly, in my experience, part of mediation’s secret to success and why so many mediations result in the parties leaving the mediation day with a signed settlement agreement.

Elizabeth Repper, Full time mediator of over 125 disputes at Keating Chambers

www.bbolawsoc.org.uk

News

New proposals for ethnicity pay reporting – the race to close the gap

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ast week the government launched a consultation to determine whether obligatory pay gap reporting could help address the pay disparity that minorities face in the workplace.

This is the government’s next step in its agenda to tackle racial inequality, following the introduction of the Race Disparity Audit last year and the initiation of the Race At Work Charter.

The principle behind the consultation already looks very similar to that of the gender pay gap reporting obligations, which this year forced employers with over 250 employees to reveal their gender pay gaps for the first time. Gender

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pay gap reporting has received praise for taking a legislative step towards tackling such an important issue but has also been criticised for not going further or focusing on the figures from an equal pay perspective.

to voluntarily report on their gender pay gap to address any issues early and show their commitment to attracting and retaining female talent in an increasingly difficult recruitment market.

Laws of this nature place many commercial organisations in the spotlight, with the ensuing media attention pushing businesses into action.

As a result, most employers have not simply published their figures but also contextualised the figures and published the steps they are taking to reduce their pay gaps.

What does this mean for my business?

Whilst gender pay gap reporting currently only applies to larger companies, it is likely to be rolled out to smaller companies in the future.

In fact, many smaller employers have chosen

With the deadline for next year’s gender pay gap reporting deadline looming, it is prudent to begin preparations now and also consider what race pay gap may exist in order to be as prepared as possible for this prospective legislation.

Nick Bailey, Associate-Solicitor Boyes Turner

www.bbolawsoc.org.uk

training

Tracking study indicates steady rise in legacy giving

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9 APRIL 2018 – LONDON, UK – Over a quarter (27%) of charity donors are preparing to leave a charitable legacy or have already done so (up from 23% in

The research also indicates that awareness of legacies is growing, with just 1

33

www.bbolawsoc.org.uk

Articles

Resilience, yes, but for whom?

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ome years ago I began to notice the word resilience.

It started to appear everywhere: online, on the radio, in the workplace. Employers were concerned about their employees and their emotional resilience.

They were talking about resilience – what it is, why it is important, what happens if you don’t have it. They were even paying for it. Consultants turned up at away days.

Leaders were trained and the learning was cascaded.

Perhaps this concern with resilience was prompted by the fallout from the financial crash. Maybe it was just a healthy and welcome stage of our ongoing human evolution. In any case, it seeped into our consciousness and seems to be here to stay.

But I have begun to smell a rat.

Resilience is the quality of being able to weather adversity while remaining sane and whole and healthy. That’s a good thing, isn’t it? So why is resilience beginning to sound like a panacea for the toxic workplace? Worse still, people who cannot cope in such a place are beginning to sound like the problem. You aren’t resilient enough. You should be able to cope with this. Don’t point the finger at us when it is you who are inadequate. And I have begun to think, “Resilience, yes, but for whom?”.

There have always been great demands on solicitors but those demands are becoming more acute what with billing targets, increased regulation and growing competition. Throw in a sadistic boss or the threat of redundancy and you have a toxic mix that calls for mammoth reserves of resilience just to hold your balance.

If you fear you might be close to buckling, then my purpose here is to awaken you to that off-sounding note in the resilience discourse. This will help you set about finding and fixing the right problem and, more importantly, save you from punishing yourself if it isn’t you at fault. Sift through the toxic mix with a critical eye and get clear about the active ingredients. Where are the pressures coming from and do you have control or influence over them? Is getting out the only real solution and is that even possible?

If you find yourself waking at three every morning because your court commitments show no let up and you are dangerously close to a raft of filing deadlines, then something has to change. You could reach for the sleeping tablets (because they will make your sleep more resilient to stress) and you could resolve to take more work home (because that will reduce the backlog and so the stress). This will save you whining to the boss because she has enough on her plate, you’re a team player and you have your eye on partnership. You want to show a can-do attitude and, besides, your sense of self has always been of someone who delivers.

Congratulations, you have been mis-sold resilience!

Your solution might just work if it is only needed for a matter of days but that doesn’t sound to be the case. What you have done here is internalise the problem of an excessive workload as yours alone and come up with a, frankly, insane (but commonplace) solution. It may be a simple matter of not taking on new clients for a while and passing the ticking files to other colleagues. It may even be the case that no one but you is preventing this. Sometimes the unreasonable boss is inside our heads.

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If, however, your assessment that nothing can be done is correct, then you need to think about what’s really going on. Who is all this sacrifice really benefitting? Is there enough in it for you to carry on like this? Resigning might be what you need to do but may not be a financial possibility until you find another job or career. This is where resilience really comes into its own.

Resilience is what you need when you can’t change a difficult situation. It is what sees you through while you’re problem-solving. The mere fact of understanding the situation and seeing it for what it is will help you forebear.

Remember the sifting exercise? Sometimes we will discover that the problem is indeed within our control. We didn’t prepare well enough for court and took home the persistent, corrosive feeling that we are being judged not good enough. There isn’t much to be done when we make a mess of things but resilience can combat futile and endless ruminating. It helps us forgive ourselves and get over it.

Don’t buy into the passive-aggressive message that arrived with the resilience band wagon but do take all the help on offer – training, workshops counselling.

It won’t all make a difference but some of it probably will. It will be a start at any rate.

The shy lawyer

FINGERPRINT ANALYSIS Peter M Swann FAE FFS Independent Consultant to the Legal Profession A former Home Office Adviser with five decades experience in all aspects of finger print and crime work.

A Fellow of the Academy of Experts, a Fellow of the Fingerprint Society, a Member of the International Association for Identification, a Member of the Forensic Science Society and included in the UK Register of Expert Witnesses.

Provides a full independent fingerprint service to legal profession, industry and other agencies.

Examination Development

Assessment Report

Briefing Expert Witness

Telephone: Wakefield 01924 264900 (Office) 01924 276986 (Home) Fax: 01924 265700 Email: peterswann@btconnect.com www.fingerprint-analysis.co.uk

www.bbolawsoc.org.uk

training

Tracking study indicates steady rise in legacy giving

0

9 APRIL 2018 – LONDON, UK – Over a quarter (27%) of charity donors are preparing to leave a charitable legacy or have already done so (up from 23% in

The research also indicates that awareness of legacies is growing, with just 1

35

www.bbolawsoc.org.uk

NEWS

Harrison Clark Rickerbys advises Channel Mum on £3m venture capital funding investors Downing LLP and NVM Private Equity LLP. Channel Mum is an award-winning online vlogging community for parents, with a clear ambition to be the leading video-based parenting platform.

Rachel Turner

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orporate experts at Harrison Clark Rickerbys advised Channel Mum Ltd and its founder, Siobhan Freegard, on a £3m venture capital investment by

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Rachel Turner, partner and head of the firm’s corporate team in the Thames Valley, led the HCR team, assisted by corporate solicitor Emily Beere.

Rachel said: “The timescale for completion was very ambitious, taking into account the long Easter break and the number of interested parties involved, but we are very pleased to have been part of an overall team of advisers and clients which

was very focused on getting the deal done.

“It’s been great working with Siobhan and the Channel Mum team again, particularly as they are just about to enter a really exciting phase of growth and development with Downing and NVM firmly on board for the future.”

Siobhan Freegard, CEO of Channel Mum, said “We are delighted that Downing LLP have joined us and we look forward to working closely with them and our existing investors to drive Channel Mum forward. Rachel’s team at HCR were invaluable in getting this round of investment through in the timescales set and in managing the process so that we could focus on running the business.”

www.bbolawsoc.org.uk

advertorial

Quill’s revived trainee scheme shows steadfast commitment to cashiering

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t Quill, we’re dedicated to getting the job of cashiering right. You see, we’ve been supplying outsourced cashiering services for 20 years, half of our company’s life, and we’ve earned ourselves an enviable reputation as a market leader in cashiering based on our 100% accuracy rates.

Demand for our services has grown year on year. That’s why we’re now the UK’s largest employer of outsourced cashiers.

Saying we’re committed to impeccable legal accounting isn’t just empty words. Our claim is demonstrated in our unique-in-the-industry trainee scheme. Our training programme has been operational since the very beginning, some 20 years ago, and we welcomed our new intake of trainees this September.

We invest considerable resources – both money and time – into breeding the next generation of cashiers for our Pinpoint bureau and the legal industry at large, the latter having endured a dire shortage of trained cashiers in recent years.

As part of our training academy, our trainees combine on-the-job experience, peer support and classroom learning at Quill in conjunction with the Institute of Legal Finance & Management – or ILFM for short – and gain a recognised legal accounts diploma-level qualification upon course completion.

They also attain a well-paid position at Quill, become part of a caring and fun company, cultivate a whole new set of skills and acquire the opportunity of a lifetime career in a specialised field where they’ll never be wanting for work.

We pay for our trainees’ external course fees and fund their ongoing annual subscriptions to the ILFM or other professional body. This amounts to a substantial sum of money over the duration of the scheme and thereafter

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as fully qualified members of their chosen membership organisation.

We also devote something even more valuable than money – time and attention. We recruit stringently by closely screening applicants and taking up references pre-start date, employ a permanent trainer as a constant source of support, assign cashiers to supervisors in teams of six for careful mentoring, and provide convenient access to existing cashiering bureau members who can share their extensive knowledge and assist when a helping hand’s needed.

Once our trainees are on board, we have best practice processes in place to ensure their work meets the highest standards that we, and our clients, expect from them and continually harness their skills.

For the former – quality standards – we insist upon commonality by shared use of our Interactive legal accounts system, supplied alongside the Pinpoint service, and consistent ways of performing each cashiering task. These are defined by Interactive, which all of our cashiers use, from trainees upwards. For the latter – continued professional development – we follow a tried-and-tested performance appraisal procedure to monitor progress and identify additional development needs which we address with formal training or one-to-one coaching.

For added kudos, our training academy is endorsed by the ILFM, specialist providers of services – such as training – for legal cashiers. Our affiliation with the ILFM means our trainees undergo training at Quill, supplemented with training at the ILFM, so the qualification awarded upon successful completion comes with the widely-recognised ILFM stamp.

ILFM accreditation demonstrates sound, comprehensive and practical application of solicitors’ accounts rules and their compliance with regulatory guidelines. It’s a distinguished

proficiency badge which is highly desirable to both clients and other employers alike, should end users of our services seek evidence of our cashiering mastery or our trainees later decide to secure employment elsewhere respectively.

In sum, our trainee scheme is beneficial for multiple stakeholders. For trainees, it’s the first step onto their career ladder. For clients, it’s a quality guarantee and future-proofing promise. For Quill, it’s developing the right skills in-house to thrive as an outsourced cashiering bureau and differentiate ourselves from other suppliers of outsourcing services who fall far short of the bar set by us. It’s also the feel-good factor of contributing in no small way to cultivating our country’s rising talent. For the legal sector as a whole, it’s confirmation of Quill’s standing as experts in all things cashiering.

We’ve got lots to say on the subject of outsourced cashiering. To read more, access our earlier articles published on the Internet Newsletter for Lawyers website titled ‘Outsourced cashiering and your bottom line’, ’Ten reasons to outsource your cashiering’ and ‘How outsourced cashiering works’.

By Julian Bryan, Managing Director, Quill For additional information on our Pinpoint outsourced legal cashiering service, please visit www.quill.co.uk/Outsourced-LegalCashiering, email info@quill.co.uk or call 0161 236 2910.

Julian Bryan joined Quill as Managing Director in 2012 and is also the Chair of the Legal Software Suppliers Association.

Quill is the UK’s largest outsourced legal cashiering provider with 40 years’ experience supplying outsourcing services and software to the legal profession.