D&DLS Bulletin Derby & District Law Society www.derbylaw.net
Dec / Jan 2023/4
Happy New Year!
DDLS / DJL Winter Party p12 Also in this issue:
Family Law Committee • Diwali Curry Event • Council Member’s Report
Silver Patrons of the Society
Gold Patrons of the Society
D&DLS Bulletin Derby & District Law Society
Dec / Jan 2023/4
Contents 3 - Contents & Editorial
12 - DDLS / DJL Winter Party 30th November 2023
4 - List of Officers
14 - Able Community Care
5 - President’s Page
16 - Remember A Charity Chair Allan Freeman hands over reins
6 - Council Member Report December 2023
at year end
8 - Family Law Committee
18 - Mediation: have the floodgates finally opened?
10 - Derby Junior Lawyers
20 - Cybersecurity and the legal sector
11 - Diwali Curry Event – 9th November 2023
21 - Law Society News
11 - Situations Vacant
22 - The Importance of Family Tree Verification
Editorial Happy New Year – I hope that everyone had a great Christmas and managed to get some rest and family time. I am pleased to once again be sending you a packed Bulletin with details of social gatherings, professional meetings and sub-committee meeting minutes. This is also the last Bulletin that contains a piece from our Gold Patron 2023 – Hallam Wealth Limited. Thank you so much to Jason Hallam and his team for their support this year. Watch this space next time for details of our 2024 Gold Patron. If you have contacts who would be interested in sponsoring DDLS, an award at the dinner in March or an event please do let me know. The sponsorship packages are linked to our website www.derbylaw.net. Members should have received proposal forms for the awards. If you need any forms or have any questions just get in touch. The closing date for nominations is 2nd February 2024 and wines are announced at the dinner on Friday 15th March.
FINDING YOUR VOICE IN TODAY’S DIGITAL AND PRINT MEDIA
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In December I represented DDLS at the Law Society town hall meeting which are now conveniently on Teams. We discussed unbundling. I have been “retired” for a while now but it strikes me that this, either as a substitute to legal aid or in its own right, is doomed to fail. Clients wanting lawyers to draft a witness statement for £500 + VAT is unrealistic in most cases where a thorough look through all the case paperwork would be needed and a lawyer could then be negligent for the whole case. Who would expose their indemnity policy like that ? I was encouraged to see quite a lot of younger lawyers at the meeting though. The future is theirs so I think the Law Society should engage with them as much as possible. With young lawyers in mind please see the DJL piece and Winter Party piece in this edition which demonstrates how active our own DJL are. On a personal note thank you DJL for all your support. I have been out and about meeting people. This job is a bit unusual and there are not many local law society admins about. We have been meeting on line for the last year which has been really useful. Michelle Foster from Notts LS, Carolyn Coles from Northants LS
Advertising Simon Castell Managing Editor Julia Saunders
and Charlotte from Leicestershire LS and I have met in person a couple of times now and it has been amazing to exchange ideas and experiences. I was also pleased to be invited by Sarah Markham, from CALM in a Box, to a networking and toasting marshmallows evening at Electric Daisy. Lovely to meet new people. The DDLS committee goes from strength to strength and I am proud that we have probably a 50 year age range of people who sit on the committee. Andrew Cochrane, who was President in 2010/11 has retired from the committee and we have a few new members including Claire Twells, Rachel Maxwell, Felicity Coats and Monica Guram. Thank you to Andrew for all the enthusiasm and support over the years and good luck with your role at Derby College and welcome to our new committee members. I hope to see you at an event soon – don’t forget the Quiz is Thursday 1st February at Derby RFC. Take care. Julia Saunders admin@derbylaw.net 01283 734989
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Officers and Committee Members for 2023-24 Officers President* Oliver Maxwell Nelsons 01332 378696 oliver.maxwell@nelsonslaw.co.uk Vice-President* Tina Attenborough Attenborough Law, Derby Tel: 01332 558508 tina@attenboroughlaw.co.uk Immediate Past President* Manesha Ruparel Alexander & Co Solicitors LLP Tel: (01332) 600005 mr@aandco.co.uk Deputy Vice-President* Lucy Tissington lucy.tissington@familylawgroup. co.uk
Family Law Fiona Apthorpe
Tina Attenborough tina@attenboroughlaw.co.uk
Administrator / Bulletin Editor Julia Saunders, 14 Risborrow Close, Etwall, Derby DE65 6HY Tel: 01283 734989 Mobile: 07964 358042 admin@derbylaw.net
Felicity Coats felicity.coats@elliotmather.co.uk
Sub-Committees (Secretary in italics)
Fiona Apthorpe Fiona.Apthorpe@geldards.com
Diana Copestake Freeth Cartwright LLP Tel: 0845 2725674 diana.copestake@freeths.co.uk
Criminal Litigation Simon Stevens
Fiona Lazenby fiona.lazenby@knightsplc.com
Andy Cash
Julie Skill Julie.Skill@elliotmather.co.uk
Monica Guram monica.guram@nelsonslaw.co.uk
Felicity Coats felicity.coats@elliotmather.co.uk
David Hardy Tel: 01332 842008 david.hardy1630@gmail.com
Andrew Oldroyd (01332 225225)
Other Committee Members Julie Skill, Elliot Mather LLP Chesterfield Tel: 01246 231288; julie.skill@elliotmather.co.uk
Rachel Maxwell rachel.maxwell@nelsonslaw.co.uk
Honorary Secretary* Fiona Apthorpe Geldards LLP, Derby Tel: 01332 378335 Fiona.Apthorpe@geldards.com
Martin Salt martins@ simpsonjones.co.ukTel: 01773 540480
(* = Ex-Officio)
Claire Twells claire.twells@smithpartnership. co.uk
Parliamentary Liaison Officer Julie Skill, Elliot Mather LLP Chesterfield Tel: 01246 231288 julie.skill@elliotmather.co.uk Public Relations Officer (+) Vacant Derby Junior Lawyers John Ellis john.ellis@aandco.co.uk
Sue Jennings Tel: (M) 07946 609436 s.jennings@derby.ac.uk Treasurer* Ben Lawson Elliot Mather LLP Tel: 01246 231288 ben.lawson@elliotmather.co.uk
Laura Matthews laura.matthews@geldards.com
Claire Rudkin Flint Bishop, Derby Tel: 01332 340211 claire.rudkin@flintbishop.co.uk
Amelia Sutcliffe amelia.sutcliffe@ smithpartnership.co.uk
Simon Stevens Eddowes Waldron 01332 348484 sws@ewlaw.co.uk
Constituency Council Representative, Derbyshire (+) Shama Gupta shama.gupta@freeths.co.uk
Solicitors’ Benevolent Assoc. area representative Peter Lord 9 Larkhill, Swanwick DE55 1DD Tel: 01773 541753
(+) attend Committee by invitation
Education & Training Sue Jennings, & all Sub-Committee Secretaries Employment and Business Law Sue Jennings Tina Attenborough tina@attenboroughlaw.co.uk Equality, Diversity and Inclusion Manesha Ruparel mr@aandco.co.uk
David Guthrie dg@aflp.co.uk Diana Copestake diana.copestake@freeths.co.uk
Kelly Mower kellym@eglegal.co.uk Liz Guyler lizguyler@eglegal.co.uk Lucy Tissington lucy.tissington@familylawgroup. co.uk Manesha Ruparel Alexander & Co Solicitors LLP Tel: (01332) 600005 mr@aandco.co.uk Melanie Bridgen melanie.bridgen@nelsonslaw.co.uk
Tina Attenborough tina@attenboroughlaw.co.uk
Natalie Haydon-Yeung Natalie.Haydon-Yeung@geldards. com
Sue Jennings s.jennings@derby.ac.uk
Nick Herbert nh@aflp.co.uk
Natalie Haydon-Yeung natalie.yeung@geldards.com
Ruth Jones ruth.jones@smithpartnership. co.uk Sole Practitioners’ Group (SPG) Tina Attenborough
Last updated 02.01.24
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President’s Page
Oliver Maxwell
Bake Off prizes. Your generosity is very much appreciated. As I sit down to write this update, I am just a few hours away from seeing my eldest’s first school Nativity play. We were told at parents evening a couple of weeks ago that he is a “wonderful singer” (always good to get such a positive, impartial review) and so I am sure that it will be quite a show. I thought it had been a relatively quiet few weeks but, looking back, there has been quite a lot going on. I am told by our fantastic Administrator Julia that this bulletin will likely be published in the New Year. If that is the case, I sincerely hope you have all had a fantastic Christmas and are suitably relaxed, re-charged and eager to see what 2024 has to bring. I know that I am. Anyway, in the meantime, let me update you on what has been going on in the world of DDLS. In late October, I attended the Derby Ghost Walk. This was a joint event organised by DDLS and our fantastic Derby Junior Lawyers (DJL). The event began with some pleasant drinks in the Orange Tree pub, before Richard Felix himself (and yes, I was somewhat star-struck) guided us through Derby whilst telling us about some of its more gruesome history. It was great to see and meet some new faces at the event and I would encourage you all to get involved
in events like these. As usual, there was a strong DJL presence, and I am grateful for their continued efforts and support they give to the local legal community. Next was the DDLS Curry Night held at O-Kra in November. My thanks go out to Julia for organising. Again, I saw and met some new faces who were all keen to get involved in future DDLS events. I also connected with someone from another member firm who was keen to discuss cross-referral opportunities between our two firms. It is that kind of exposure which, in my view, demonstrates the real power of DDLS networking. As I have said throughout my tenure as president, there is much to be said for this kind of collaboration and so long may it continue! Not long after the Curry Night, I was excited to be able to present the DDLS Bake Off “winners apron” and M&S voucher to Gemma Plummer from Eddowes Waldron. I was joined during the prize presentation by April Allman of the Enthusiasm Trust, who is the CEO of my chosen charity for the year. You can see the press release about the presentation here: Solicitors have Enthusiasm to raise money for youth organisation - East Midlands Business Link* and I would like to give a special thanks to Greg Gillespie of Tacet Global for donating all of the
Next was the Winter Party on 30th November held at the beautiful Kedleston Country House hotel. Given that it is such a busy time of year in the run up to Christmas, the event was exceptionally well attended. The food, atmosphere and organisation on the night was superb. Thanks to both the Oberoi Business Hub and to Bygott Biggs for sponsoring. The event was another collaboration between DDLS and DJL, but I have to admit that DJL did the majority of the heavy lifting and, for that, I am truly grateful. It is not lost on me what an incredibly complex operation organising an event like that is and you did both DJL and DDLS proud. Thanks again! In terms of final engagements during this update, I was lucky enough last week to sit on the judging panel for the Nottinghamshire Law Society’s (NLS) annual awards. Whilst I obviously cannot disclose anything about the outcome, there were some very strong nominations in all categories. It took us around two and a half hours (with drinks and pizza) to decide upon the shortlist and the overall winners. I look forward to attending the NLS awards dinner next year to represent DDLS and to present one of the awards. In terms of future events, after its successful launch in August our Tapas
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President’s Page continued Thursday networking event returns on 11th January 2024. The event is now live on Fienta and tickets are already selling fast. Positively, there have been bookings from several member firms who no not often come to DDLS events. This is all welcome and positive news as we spring into 2024. There is also a further PLP (Property Law Professionals) event being held on 18th January 2024. Our Rachel Maxwell has teamed
up with Rhys Schofield of Peak Mortgages and Protection to bring you the “Estate Agent versus Lawyer” crazy golf tournament. I am sure that the event will be a great success!
Nelsons. Your generosity is well received. It goes without saying that I shall continue to represent DDLS as we steam towards the festive season. I shall see you on the other side.
Until next time, I think that is about all I have to say by way of update. I would, however, conclude with one final point, which is to give thanks to both the Smith Partnership and Flint Bishop for offering their facilities for future DDLS events and meetings alongside
Oliver Maxwell President, 2023-24 *https://www.eastmidlandsbusinesslink. co.uk/mag/ooo/solicitors-have-enthusiasmto-raise-money-for-youth-organisation/
Council Member Report December 2023
Shama Gupta
Diversity & Inclusion During Disability History Month (DHM) Bristol Law Society and Nottinghamshire Law Society, supported by TLS’s Disabled Solicitors Network, held a hybrid roundtable on 16 November on Reasonable Adjustments which they are planning to repeat by collaborating with other local law societies in 2024. If interested, in getting involved please contact me.
Also, TLS published guidance to support disabled students through their studies and in the workplace. “The guidance signposts the available support during the Solicitors Qualifying Exams, at teaching institutions, the recruitment process and in the workplace. It outlines that education institutions are required to provide reasonable adjustments for students under the Equality Act and reminds employers of their responsibility to do similar for employees. Further reading – Celebrating Disability History Month 2023 | The Law Society Becoming a solicitor as a disabled student | The Law Society: https://www.lawsociety.org.uk/topics/lawyers-with-disabilities/ celebrating-disability-history-month-2023 Criminal legal aid decision TLS’s action to judicially review the government’s decision not to implement the 15% increase in criminal legal aid rates for solicitors (as recommended by Lord Bellamy’s independent review on criminal legal aid) will be heard in the High Court from 12 to 14 December. Further reading – Fight for the future of the criminal justice system hits the High Court | The Law Society: https://www.lawsociety.org.uk/contact-or-visit-us/press-office/pressreleases/fight-for-the-future-of-the-criminal-justice-system-hits-thehigh-court TLS welcomes feedback from you and I would like to hear from you about
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anything you may wish to share concerning your professional needs. Please contact me at https://www.lawsociety.org.uk/about-us/our-governance/ council- constituencies-and-current-members/shama-gupta. Don’t forget to update your personal information on My LS! Shama Gupta, Law Society (TLS)
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Family Law Committee Minutes of a Meeting of the Derby & District Law Society Family Law Committee
to copy in Angela Clayton (angela.clayton@ justice.gov.uk) who can assist if the matter is extremely urgent. Everyone to note.
Meeting: Wednesday 6 December 2023 Present: Fiona Apthorpe (Secretary), Nick Herbert, David Guthrie, Fiona Lazenby, Melanie Bridgen, Ruth Jones, Diana Copestake Apologies: Lucy Tissington, Kelly Mower, Liz Guyler, Julie Skill, Natalie Haydon-Yeung, Ben Lawson No Apologies: Kirpal Bidmead
1. MATTERS ARISING 1.1. Membership/Attendance Nothing to report. 1.2. Court User Meetings Nothing to report. 2. AGENDA ITEMS 2.1. Listing An animated debate about the continuing problems over listing at the local courts. There is huge frustration at the fact that you cannot call the court direct anymore. You are directed to a call centre who are generally unable to answer the question if they answer the phone at all. Members are reporting being on hold for 40/50 minutes at a time. It is incredibly difficult to get the message through to the court that, for example, a hearing needs to be adjourned. This wastes precious court time in circumstances where cases are being cancelled left, right and centre because of a lack of Judges available to hear them. Members were reminded of the availability of the Court Serve facility which will enable you to check the day before, the name of the Judge hearing the case. It can often be more effective to email the Judge directly, although remember that communication sent directly to the Judge may not necessarily be uploaded to the portal. 2.2. Contacting Derby Family Court District Judge Davies has requested that in respect of urgent matters, when emailing the Court for genuinely urgent matters would we please mark the email as “EXTREMELY URGENT” as emails are not reaching Judges quickly enough, particularly where parties are seeking an adjournment. We may also wish
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Transparency Project 2.3. Derbyshire DFJ area has been included in the second round of the Transparency Reported Pilot which is due to begin at the end of January 2024. There will be training for Lawyers and professionals on MS Teams on 12th December at 4:30pm and 23rd January at 4:30pm. Cardiff, Leeds and Carlisle have participated in the first round of the pilot. There have been no real issues reported so far and only limited journalistic interest in the workings of the family court, particularly after the initial weeks of the pilot. The President has made clear that the courts are moving towards further access to reporters. The first phase will be Public Law proceedings with Private Law proceedings coming in later in the year. The magistrates will not be included in the pilot until around October of next year. Everybody is encouraged to attend the training available as this is likely to be invaluable in understanding the process and what information needs to be imparted to the clients going forwards. 2.4. Special Measures The Court has circulated a leaflet which can be handed to client’s concerning the availability of special measures at the Derby and Chesterfield Courts. The leaflet gives detailed guidance on what to do in advance and where to go at Court as well as detailing the special measures available at our local court. A copy of the leaflet has been circulated to members but if anybody has not received this could they please contact Fiona. 2.5. Pro-Bono Advice Following on from the comments above about Special Measures, cases involving protective measures are on the increase. The Court is looking to compile a list of solicitors and barristers that may offer pro-bono services to court users who are victims of, or at risk of, Domestic Abuse. It is not intended that the list be sent out routinely and will only be provided to clients the court believes to be vulnerable. If you would like your firm to be on the list then please email: specialmmeasures.derby. countycourt@justice.gov.uk and include the
relevant contact information for the client. The family committee expressed some reservations about this suggestion. Query whether we would be insured to offer advice in these circumstances and the practicalities of organising identification and conflict checks. It is hard to see how it would work in practice but it is a matter for individual members. 3. PERMANENT AGENDA ITEMS 3.1. Database A reminder that the database of Family Practitioners is a very useful method of communicating information to family lawyers locally. Could everybody please double check that members of their Family Team are included. If you are not included please let Fiona have your email address. 3.2. Training and Education Committee discussed the local availability of Private FDRs and/or Arbitration. Fiona has offered to put on a presentation for local solicitors if this would be of interest. 3.3. Local Family Justice Board The Derby Family Local Justice Council was originally set up in 2005. It was subsequently resurrected as the Local Family Justice Board. Many Committee Members are Members and if you want to be on the LFJB’s mailing list and be sent information about training events etc please contact Joanne.eaton1@hmc.gsi.gov.uk 3.4. Court User Groups Nothing to report save as above. 4. DONM The next scheduled meeting is at Geldards’ Offices on Pride Park and will take place face to face. The remaining schedules meetings for 2024 are to follow. 5. And Finally! Diana Copestake has announced that she will be retiring from the end of March 2024. This is sad news indeed but it was considered that this would be a good opportunity for the Committee to meet face to face just before Easter to mark the momentous occasion(!) and it is to be hoped that as many members of the local family community as possible will join us. Fiona M K Apthorpe Secretary
DJL The main event since the last Bulletin has been the Winter Party which required a lot of DJL effort and energy but was well worth it in the end as the attendance from all areas of the local profession was fantastic. A separate write up is in this Bulletin.
DJL also organised a spooky Ghost Walk on 26th October with local historian Richard Felix. Thank you to everyone who attended we hope that you enjoy the variety of events that DJL is putting on. Any requests or ideas please let the committee know. The quiz and pizza evening on 16th November was another success with 60 people attending. It was a great chance to socialise and make connections whilst having some free pizza. It was lovely to see established members of DJL, prospective new members and law students from the University of Derby getting together. Thank you to Geldards Solicitors for letting us use your social space for the event and to John Ellis, President of DJL, for being the quiz master on the night. Well done to everyone who took part particularly the Smith Partnership who won the quiz with Swindell and Pearson and Family Law Group coming second and third respectively.
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Diwali Curry Event – 9th November 2023
It was lovely to meet some new members and catch up with some old friends at the Diwali curry night at O-kra, Derby. It was an informal relaxed evening of good food and chatter. Thank you to everyone who came along.
LAWYER OPPORTUNITY/ COLLEAGUE OPPORTUNITY PRIVATE CLIENT LAWYER – HEAD OF DEPARTMENT This is a fantastic opportunity for an experienced ambitious Private Client Lawyer to join a friendly firm with partnership prospects. Established in 2014, JC Lawyers have two offices in the Derbyshire area, Ashbourne and Ripley and offer property law and private client services to both individuals and businesses. The Candidate As a Private Client Lawyer you would be dealing with a mixed caseload of wills, lasting powers of attorney and probate matters. Job Description • To head up the Private Client team as well as handling a varied caseload from initial instruction through to completion, to include the drafting of Wills, Trusts, Lasting Powers of Attorney and dealing with Trust and Estate Administration • Management and supervision of support staff for which you will be responsible • Providing guidance to the rest of the team where required • To give excellent client care and build working relationships with third parties • To assist the Directors in growing the department Required Skills and Experience • Ideally, you will be a qualified Solicitor or Legal Executive with at least 2 - 3 years post qualification experience Salary and Benefits • Competitive salary, negotiable and dependent upon experience • Excellent career progression and partnership prospects • The role can be based at either of our offices in Ripley or Ashbourne This is a permanent job offered on a full-time basis. How to Apply For further information about this role and to apply, please send a covering letter with your CV to cheryl.croxall@jc-lawyers.com
I am looking to find a committed, dedicated and experienced pro-active retired or semi retired lawyer who would seek to work in collaboration with myself to head up a community based Legal Practice to serve the citizens of Derby. Role: to realise the vision of serving the community of Derby which can lead to a rewarding and fulfilling role and to serve those who need access to affordable and accessible General Practice Legal services within the area of Derby. Qualities sought: Commitment and willingness to shape the Community based Legal Practice from inception to a viable business structure. Proven Business Development skills to assist with the creation and on going development of the Practice with essential networking skills to grow and develop the Community Practice with the application of various social media platforms. Ideally seeking a Lawyer who has a proven experienced background in General Practice with emphasis on Private Client such as Wills and Probate, Conveyancing and Landlord and Tenant as well as an understanding and knowledge of the application of Shariah law within the niche area of Islamic Wills.
Any interested parties should contact Miss BR Durgauhee on: Mobile 07446268821 and/or by email on: Durgauhee@aol.com I would like to hear from any interested parties and also to hear from those practising Lawyers seeking a more meaningful and fulfilling role with purpose and value .
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DDLS / DJL Winter Party 30th November 2023
Amelia, John and Laura The joint Winter Party of DDLS and DJL took place on a very cold Thursday at the Kedleston Country House Hotel. After the usual slow start on ticket sales the event was enjoyed by almost 100 members of the local legal and business community ranging from students from the University of Derby all the way through to let’s just say the more experienced members of the profession! We are extremely grateful to the DJL committee, especially Laura Matthews, John Ellis and Amelia Sutcliffe, who once again showed that the future of DDLS is in safe hands with their enthusiasm and organisational skills in putting on a great evening. After a welcome drink and a brief introduction from Oliver Maxwell, our sponsors Bygott Biggs and Oberoi Business Hub were able to say a few words and then everyone was able to enjoy our great live singer, a tasty buffet and a good catch up. Thank you to everyone who was involved with the evening both organising and attending. We hope that you enjoyed yourself and look forward to seeing you at an event soon.
John, David Mayfield, Richard Betts and Oliver
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John, Kavita Oberoi, Oliver and Jodie Brady
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Remember A Charity Chair Allan Freeman hands over reins at year end
Allan Freeman
Remember A Charity has announced the appointment of a new Chair, Anaish Yilma- Parmar, British Red Cross’s Head of Legacies, who will take over responsibility for leading the coalition of charities towards its goal of making legacy giving a social norm. Yilma-Parmar will take up the role in January 2024, picking up the reins from Allan Freeman.
Having completed an extended four-year term as Chair of the consortium, Freeman will step down at the end of December. However, he will remain on the Executive group, which works closely with Remember A Charity’s staff team. His tenure as Chair has seen the campaign grow from strength to strength – with a growing charity membership amplifying the consortium’s legacy voice; influencing government around key areas such as probate, building the campaign’s network of more than 860 solicitor firms and Will-writers (Campaign Supporters), and forming successful collaborations with sector and legal partners to extend reach and drive home the legacy message. Lucinda Frostick, Director at Remember A Charity, says: “We are hugely grateful to Allan for his leadership and support. He is always incredibly generous with his time, expertise and guidance, steering the campaign forward during a challenging period for the sector – one where legacy income and our Lucinda Frostick campaign mission of growing the market has proved vital. And he did a brilliant job of it. “We’re so fortunate too that Allan is able to pass on the reins on to Anaish, who has played a key role on our Executive this year. It’s an exciting time for legacies and the campaign. Anaish’s energy, passion for legacies and for what can be achieved when we work as a collective is contagious, and we are looking forward to his leadership from the New Year.” Heading up Remember A Charity’s Executive Committee, YilmaParmar is tasked with overseeing that the coalition delivers on its three-pronged strategy of driving the public’s consideration and action about gifts in Wills, ensuring professional advisors consistently reference the option of legacy giving Anaish Yilma-Parmar when advising clients and of working to nurture and enhance the environment for legacies. Commenting on his tenure and on Yilma-Parmar’s appointment, Freeman, Chair at Remember A Charity, adds: “I’m really proud of how the campaign has grown from strength to strength. We’ve built a body of
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support with growing membership and raised the profile of Remember A Charity Week and year-round the message around legacy giving. Our How to...videos have seen a phenomenal half a million views – meeting an audience need – and the rise in legacy giving is driven by our increased partnerships and collaboration. “Anaish is incredibly well respected; he’s enthusiastic, driven, a collaborator and legacy expert, bringing a new dimension to the campaign.” Anaish Yilma-Parmar, Head of Legacies at British Red Cross, comments on his forthcoming appointment, saying: “It’s a privilege to be given the opportunity to chair the campaign following Allan. Allan brings so much knowledge and insight, and he’s made a huge impact at Remember A Charity. His legacy is that Remember A Charity is in a real position of strength. “I’m delighted to become the Chair and to continue to amplify the voice and messages around gifts in Wills. We’re in an exciting place, drawing ever closer to ensuring legacy giving becomes a social norm.”
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Mediation: have the floodgates finally opened? On 29 November the Court of Appeal gave its judgment in the longanticipated case of Churchill -v- Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416. Chris Makin It started life as a simple dispute between an individual and a council over Japanese knotweed, but assumed such importance that there were no fewer than seven bodies admitted as interveners: the Law Society, the Bar Council, CMC, CEDR, CIArb and two housing association bodies. So what was the case really about, and does it change the way civil and commercial mediation disputes are to be handled in future? The basic case This was ever so simple. There was an outbreak of the horrible Japanese knotweed on some spare land owned by the Council, and it encroached onto the garden of a Mr James Churchill. As we know, this knotweed is extremely invasive and very expensive to remove. This council, and many more, had a Council Complaints Procedure, and when Mr Churchill’s lawyers sent a letter of claim to the Council, they were asked why they had not used this Procedure. Churchill’s lawyers persisted, and issued proceedings. The Council applied to the court for a stay, and for costs, to allow the Procedure to be followed. The district judge decided he could not order such a stay, being bound by the decision in the well-known case of Halsey -v- Milton Keynes General NHS Trust [2004] EWCA Civ 576 where Dyson LJ said “…to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction to their right of access to the court” and that this would offend Article 6 of the European Convention on Human Rights, which establishes the right to a fair trial. Why does this matter to mediation? Dyson LJ’s words have long been interpreted as saying that for the court to order a stay for mediation to take place, and especially if a party was unwilling, would offend a citizen’s right to a fair trial. The courts have tried to encourage mediation as much as possible, mainly by threatening costs orders against those who refused to mediate, and even
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Halsey itself had a checklist of situations where a party was at risk on costs if they declined an invitation to mediate. But no such forms of “persuasion” have been entirely effective. Churchill was a curious case to provoke so much interest about mediation, because it didn’t concern mediation as we know it. This Council Complaints Procedure was arguably not even independent, since it was conducted by a council employee, and all mediators know how important it is to be, and be seen to be, independent. But in the judgment there was talk of this Procedure, early neutral evaluation, negotiation etc and especially mediation, so this Procedure was seen to be near enough to a form of Alternative Dispute Resolution (ADR) for it to be taken as an example. Back to main principles The main judgment was given by Sir Geoffrey Vos, Master of the Rolls. Also on the bench was Susan Carr, the new (and first ever) Lady Carr of Walton-on-the-Hill, Lady Chief Justice. So this was an impressive bench. The judgment was unanimous. Turning back to Dyson LJ’s words above, one would have thought that they were unambiguous: imposing “an unacceptable obstruction to their right of access to the court”, and therefore contrary to Article 6. This court thought different. There was lengthy discussion (the court avoiding the Latin where possible, though it surely still has its uses) of the difference between ratio decidendi and ratio obiter. As lawyers very well know, ratio decidendi is an argument which is central to the issue and determinative of the court’s decision, whereas ratio obiter is merely a superfluous comment which is not central to the case. The court decided that Dyson LJ’s words were obiter, not central, just a side comment, and therefore this court was not bound by them. The court did indeed have the power to order a stay for mediation to take place. It follows that all inferior courts will be bound by the precedent that parties may be ordered, willing or otherwise, to follow a method of ADR before they can have a trial. So now what? At 74i), Vos MR said that “[9]-[10] of Halsey was not part of the essential reasoning in that
case and did not bind the judge to dismiss the Council’s application for the stay of these proceedings.” At 74iii) he said he would not “…lay down any fixed principles as to what will be relevant to determining the question of a stay of proceedings…” so the trial judge could decide what he may order. 74ii) is worth quoting in full: “The court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.” One will recognise that the last few words come straight from CPR Part 1. By this time, Japanese knotweed had lost its relevance. The important issue is that all the interveners had won, because litigators are no longer bound by Halsey; the court can indeed order a stay for ADR to take place. Mediators at last are going to be busy. The barrier of Halsey has gone, and we get back to what Lord Woolf intended with his Civil Procedure Rules launched on 1 April 1999. Plus ça change, plus c’est la même chose.
Biog: Chris Makin has practised as a forensic accountant and expert witness for 30 years, latterly as Head of Litigation Support at a national firm. He has given expert evidence about 100 times. He also performs expert determinations. Chris is a fellow of the Institute of Chartered Accountants where he has served on the Forensic Committee, and as an ethical counsellor; he is a fellow of the Chartered Management Institute, a fellow of the Academy of Experts where he serves on the Investigations Committee, and a mediator accredited by the Chartered Arbitrators. He practises as a mediator, from his home in West Yorkshire and his rooms at 3 Gray’s Inn Square, London WC1R 5AH, telephone 020 7430 0333. He has mediated 100+ cases so far, on a huge range of subjects, with a settlement rate to date of 80%. For more see his website with videos: www.chrismakin.co.uk chris@chrismakin.co.uk
Email: bill.bailey1@nhs.net
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Cybersecurity and the legal sector
In the modern world, where technology has become an integral part of our lives, the legal sector has not been left behind and is rapidly adopting digital technology to enhance operations, from managing client information to filing court documents. This digital transformation has brought numerous benefits, such as increased efficiency and productivity, but it has also exposed the legal sector to significant cybersecurity risks. Cybersecurity refers to the practice of protecting computer systems and networks from unauthorised access, theft, damage, and other forms of cyber-attacks. The legal sector is particularly vulnerable because it deals with a vast amount of sensitive and confidential information – such as client identities, intellectual property, financial records, and other sensitive data – which is highly valuable to hackers, who can use it for identity theft, financial fraud, or other malicious activities. The consequences of a successful cyberattack on a law firm or legal entity can be devastating. The firm may lose its reputation, face legal liabilities, and incur significant financial losses. Furthermore, a cyberattack on a law firm can compromise the confidentiality of client information, leading to a loss of trust, which can be difficult to regain. To mitigate these risks, it is essential for legal firms to adopt a proactive approach and prioritise their cybersecurity by implementing robust measures to protect computer systems and networks from cyber threats. These measures may include firewalls, intrusion detection and prevention systems, encryption, and multi-factor authentication. In addition to technological solutions, cybersecurity also involves promoting a culture
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of awareness and vigilance among employees. This includes training employees to recognise and respond to potential cyber threats, such as phishing emails, and implementing best practices for password management and data protection. How True MSP can help to secure your business As an IT managed service provider (MSP), we strive to deliver strategic and transformative IT for our clients, providing a security-focused, flexible approach. We’re driven by our desire to do the right thing and keep it simple; just like we set out to do in 2017. With pride in our work and valued integrity, we take responsibility when issues arise to ensure quick solutions. As well as providing daily IT support and protection for your business, True MSP provides a wealth of all-encompassing professional IT services, such as communications, connectivity, business continuity solutions and project consultancy. As the preferred IT partner for local legal firms, we offer the following as standard to all our clients. • A comprehensive cybersecurity audit to assess your exposure and security posture. • Develop a bespoke policy that outlines your firm’s approach to cyber security. • Implement strong passwords and twofactor authentication security controls to limit access to data and ensure that only authorised personnel can access sensitive information. • Use encryption to protect sensitive data both in transit and at rest. This will prevent unauthorised access to data in the event of a breach. • Keep software up to date with the latest security patches and updates.
• Implement firewalls and intrusion detection systems to prevent unauthorised access and to detect and respond to potential threats. • Backup data regularly to an offsite location to ensure that it can be restored in the event of a breach. • Provide employee training on cyber security best practices, including how to identify and respond to potential threats. • Monitor network activity for any unusual or suspicious behaviour. This can help identify potential threats before they become serious. • Conduct regular risk assessments to find potential vulnerabilities and ensure that cyber security measures are in place to mitigate them. • Develop a response plan in the event of a cyber-attack. This should include steps to contain the attack, notify stakeholders, and restore systems and data. True MSP are proud to work with many leading firms in the East Midlands area. To demonstrate our dedication to Cyber Security and protecting local businesses, we’re offering a complimentary full Cybersecurity audit to the first 20 Law firms who contact us and mention this D&DLS article. Additionally, if you feel your firm could benefit from any of the IT services that True MSP provide, please get in touch for a free consultation. We’re here to help!
www.trueMSP.co.uk 01332 948600 hello@trueMSP.co.uk
Law Society News Surge in suspects needing police station advice as duty solicitor numbers continue to fall Legal aid statistics for July to September 2023 were released on the 21st December. The statistics show that the number of times a suspect receives legal help from a solicitor in attendance at the police station has increased from 133,982 in April to June to 152,985 in July to September. “The new figures show a recent surge in police station attendance demonstrating how crucial it is that there are enough duty solicitors to give out this critical early legal advice,” said Law Society of England and Wales president Nick Emmerson.
“This substantial rise in police station work comes at a time when there are increasing police numbers, leading to more arrests. However, there are fewer and fewer duty solicitors to do the work as they continue to leave the profession as it is no longer financially viable. “Another 71 duty solicitors left the profession between April and October this year. “Those that remain are already telling us that they are overstretched and this can only get worse if the increased workload continues. We have already heard reports of suspects being released without interview as there is no legal representation available.”
Legal Ombudsman must quickly address complaints backlog “The customer journey time for resolving complaints currently is around seven to eight and a half months, which is too long. Shortening wait times will reduce the total customer journey time to between three and five months for investigations. This would be a significant step in providing a quick and informal ombudsman scheme for complaints resolution. “We believe that recruitment and retainment must focus on investigators and ensuring that their training equips them to provide a competent service where quality is assured and waiting times are substantially reduced.” Nick Emmerson The Legal Ombudsman Service (LeO) must focus on addressing the backlog of cases and reducing average customer journey times, the Law Society of England and Wales said today. In response to the Office of Legal Complaints (OLC) 2024-2027 draft strategy and 2024-2025 business plan consultation for LeO, the Law Society continues to be concerned about the Ombudsman not meeting performance targets including: • the backlog of cases waiting for investigation • customer journey times • staff attrition rates “Whilst we are pleased that LeO has made some recent inroads towards reducing the backlog of cases, not last because of the new early resolution process, the Ombudsman continues to struggle to deliver on its primary statutory function of providing a speedy complaints resolution scheme,” said Law Society president Nick Emmerson.
On staff productivity and attrition, Nick Emmerson said: “The OLC is proposing a budget of £17.95 million for 2024/2025, a 6.95% increase to its current budget. “A portion of these funds are proposed for increasing salaries, but also to part fund a new team to support the other part of the OLC’s proposed strategy for greater focus on learning and insight work. “Whilst this delivers some positives it must not be at the expense of delivering on its statutory function of administering a quick and informal complaints resolution scheme. “The OLC has reported that in 2022-23 the average productivity of investigators was 4.3 cases per month, which seems inexplicably low and LeO continues to be vulnerable to high staff attrition rates.” Nick Emmerson concluded: “Despite the divergence in the views of the OLC and the Law Society on some aspects of the OLC strategy and business plans, we hope to continue to work collaboratively in the coming year.”
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The Importance of Family Tree Verification: Safeguarding distribution of estates around £400k, where the solicitor wanted verification that their client was the sole heir to the estate. The client was an elderly lady who claimed to be her late brother’s sole surviving next of kin. However, we discovered she’d disowned her nephew many years earlier and didn’t recognise him as part of her family. His ‘crime’ was to grow a beard to his waist and wander around his housing estate shouting and swearing. Once we had identified and located him, we established he had suffered from a mental illness for many years. In this case, half the estate rightly passed to him.
Danny Curran In France and Germany, probate research and the verification of intestate estates using professional firms is considered vital, on a par with the legal profession. Yet in the UK, we struggle to place probate genealogy firms fairly and squarely within the estate administration process. The industry is unregulated, which is not necessarily a problem and should not deter solicitors. My firm adheres to voluntary codes and regulatory regimes that can provide reassurance. The public must feel confident that the probate research firm is not operating a scam. Think of those bogus emails where the sender asks for bank account details in return for millions of pounds for instance. Reputation is a good starting point, but make sure you are dealing with a professional company. Firms can appear to list ‘offices’ around the world by placing keywords on their website and can use an impressive serviced ‘office’ address in a large city like London. Over-reliance on family testimony Another issue I see in the UK probate research industry is the reliance by the solicitor, administrator or executor on family testimony, without independent verification. Some solicitors accept the word of family members on who is or isn’t related to the deceased and by what degree of kinship. This can lead to incorrect estate distribution. I once worked on an intestate estate of
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Children Forgotten I have lost count of the children, siblings and half-siblings who have been overlooked or forgotten by solicitor clients referring cases to us. It’s not deliberate. Families lose touch, large families forget how many relatives they have, children are born out of wedlock and to single parents and, since 1927, adoptive families can legally inherit. It is an excellent idea for the solicitor to interview their client before engaging a probate research firm, to make sure all relatives are accounted for. There are four basic fee models available from most professional probate research firms. Freedom of choice is imperative to cover a variety of situations. The four main options are: 1. contingency fees, where a beneficiary signs a percentage-based agreement with the probate research firm 2. an estate / trust contingency fee, where the executor agrees on a percentage-based fee from a named beneficiary’s entitlement 3. a budget fee paid by the estate 4. a fixed fee paid by the estate. The basic model Firms may name these fees differently, but most firms offer this basic model. Contingency fees are the most popular option. They are seen as fairer in many circumstances--payable only on a successful distribution of an estate. An agreed budget or a fixed fee at the expense of the estate may be more appropriate, depending on the circumstances. Probate research firms can usually offer budget fees payable by the general estate or contingency fees where the fee is agreed directly with a beneficiary or the executor and expressed as a percentage of the sum they receive.
There are different situations where one fee option may be more appropriate. For example, if there is no grant or no known next of kin to extract a grant, a fee payable by the general estate cannot be used, as there is nobody with legal authority to agree to such a fee. Fixed fees ‘unfair’ Budget or fixed fees paid by the general estate diminish the whole estate value, which any next of kin who knew the deceased often sees as unfair. If the probate research firm works to a contingency fee and fails to find any further entitled heirs, it usually receives nothing for its work. Still, the report can secure the vital indemnity insurance policy needed to safeguard the administrator. There are dangers of being ‘hooked’ into using a firm based on a very low initial quote. Cheap does not necessarily mean better. It is often true that you get what you pay for, and this is not an area where it pays to cut corners. Importance of insurance An insurance policy against missing or unknown beneficiary claims is crucial. Sometimes, administrators seem confident they have identified all next of kin and consider taking out insurance cover against any further claims a waste of money. However, there are an increasing number of claims where no traditional documentation, such as birth certificates exists, and DNA evidence is also being used more than ever before. If there is no formal birth or adoption certificate, a research firm will likely be unable to find ‘undocumented’ claimants. Insurers are unlikely to accept a genealogist’s report as evidence unless you use a recognised firm of probate researchers. Using a recognised firm will often mean an insurance policy is instantly approved, saving you many hours of time. My preference would be to make insurance a statutory requirement on all £15k-plus estates or where a small estate indemnity is not being used. Things may go wrong, and the important thing is to be covered. For more information on Finders International’s family tree verification service, please visit the website www. findersinternational.co.uk. Alternatively, you can contact Finders via email: quotes@ findersinternational.co.uk or telephone: +44 (0) 20 7490 4935.