Herts Law Society Magazine Issue 40

issue 40 Autumn 2018

Hertfordshire Law Society Gazette

The Herts Local Family Justice Board training day Details on page 15

Also this issue: • Surrogacy and the changing Law • Hope for the best but plan for the worst • Legal sector joins forces to celebrate Remember A Charity Week • An ever-changing risk landscape • and much more...

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Contents

Hertfordshire Law Society Gazette

Contents issue 40 Autumn 2018

4

Council Members for 2018

12

Hope for the best, but...

24

Solicitors and judges

5

From the President

15

The Hertfordshire Local Family

24

“unenthusiastic” about new

6

Meeting Lucy Frazer

Justice Board training day

24

electronic bill, say Costs Lawyers

6

St Albans Legal Walk

16

An ever-changing risk landscape

26

How can you really be heard?

8

There is a better way...

20

Remember A Charity Week

30

Quill’s revived trainee scheme shows

10

National Surrogacy Week

22

Resilience? Yes, but for whom?

steadfast commitment to cashiering

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Published: Autumn 2018 Legal Notice © East Park Communications Ltd. None of the editorial or photographs may be reproduced without prior written

permission from the publishers. East Park Communications Ltd would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of East Park Communications Ltd. Correct at time of going to press.

DISCLAIMER: the views expressed by the writers in this magazine are not necessarily those of the Hertfordshire Law Society

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Council Listings

Council Members 2018 President Attia Hussain Crane & Staples (Welwyn Garden City) Family Vice President Judith Gower Hertfordshire County Council (Hertford) Local Government Hon Secretary and Treasurer Claire Sharp Debenhams Ottaway (St Albans) Private Client Immediate Past President Stephen Halloran Lawtons Solicitors (Hatfield) Crime

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Members

Robert Bedford Machins Solicitors LLP (Luton) Employment Nicholas Belcher Nockolds Solicitors Limited (Bishop's Stortford) Agricultural and Liquor & Gaming Licensing Marilyn Bell SA Law (St Albans) Family David Bird Crane & Staples (Welwyn Garden City) Private Client & Trusts

(From January 2018 until 31 December 2018)

Penny Carey University of Hertfordshire (Hatfield) Academic

Neil Johnson HRJ Foreman Laws (Hitchin) Civil Litigation

The Law Society Relationship Manager – East

Jeremy Chandler-Smith JCS Solicitors (Codicote) Sole Practitioner

Gary Smith Nockolds Solicitors Limited (Bishop's Stortford) Employment

Parliamentary Liaison Officer

Steven Hamilton Taylor Walton LLP (Harpenden) Private Client

Amanda Thurston Curwens (Hoddesdon) Family

National Council Member

Paul Davies Hamilton Davies (Stevenage) Employment, Family and Litigation

Jack Dunkley

Judith Gower

Hertfordshire Law Society Gazette

Editorial

From the President...

As President of the Hertfordshire Law Society, I would like to wish our new national President, Christina Blacklaws every success; her term commenced in July. I also wish to thank Joe Egan, the former President, for his service.

Some of you may have noticed that there are a few new faces in the local Judiciary. The Hertfordshire Law Society wishes to extend a very warm welcome to His Honour Judge Middleton-Roy and District Judge Moses, who have recently joined the Hertfordshire Judiciary. We are also delighted to congratulate Her Honour Judge Mellanby; she joins the Circuit Judges at the Watford Family Court, being the first female Circuit Judge sitting at Watford for some years.

Members should be aware that HHJ Middleton-Roy is the Diversity & Community Relations Judge. During my brief meeting with the Judge on 11 September, he outlined his aims to improve links with the local community and encourage greater diversity in prospective judges. If you are interested in learning more about this, please do contact the Watford County Court.

I congratulate the HLS members and others, who took part in the St Albans Legal Walk on 10 September 2018. The Council and I have really enjoyed seeing all your photos on Twitter!

I wish to remind members that the Hertfordshire Law Society Annual General Meeting will take place on 21 November 2018 at 6pm at the MacLaurin Building, University of Hertfordshire, De Havilland Campus, Hatfield, AL10 9EU. It would be wonderful to see as many members as possible in attendance. If you do wish to attend, please send an email or Twitter message to @HertsLawSoc. As always, the Hertfordshire Law Society does encourage members to consider whether they could serve in some capacity on the Council. If you are interested, please do make contact.

Attia Hussain President, Hertfordshire Law Society a.hussain@crane-staples.co.uk Twitter: @HertsLawSoc

His Honour Judge Peter Wright retired this year and I know our members wish to express their thanks to him for his service to Hertfordshire. I am pleased to hear that he will remain involved in our local legal community.

Please may members note that the Hertfordshire Local Family Justice Board training day will take place on 17 October 2018.

It will be an opportunity for members practicing in both public and private children law to meet and share ideas.

There will be a full day programme with a variety of speakers including Mr Justice Newton, HHJ Wright, DCI Dee Perkins and a representative from Change, Grow, Live.

The Council has listened to local member firms about their recent concerns regarding delays in Court listings, hearings being vacated at the last minute and the costs incurred to clients. I have raised these concerns with the Court and await a response. Please note that Court User Group meetings are now being set up regularly. The most recent meeting took place at the Watford Family Court on 2 October 2018. Please do email the Court about the details of any future meetings if you wish to attend.

I am pleased to report we held a productive and informative meeting with MP Lucy Frazer QC, who is the Parliamentary Under-Secretary of State at the Ministry of Justice. Details about the meeting can be found within.

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News

Meeting with Lucy Frazer QC MP the Parliamentary Under-Secretary of State at the Ministry of Justice W

e met Ms Frazer on 7 September 2018 for a roundtable meeting with our friends at the Cambridgeshire and District, Peterborough and District and Berks Bucks & Oxon Law Societies and HHJ Cooper.

The purpose was to discuss our members’ concerns and what steps can be taken to improve the legal process for clients and lawyers.

The topics discussed included Court closures, police releasing crime suspects without bail conditions, saving the Family Drug and Alcohol Court (FDAC), problems with court listings/delay and costs, plus steps being taken by the government to modernise the Courts.

Ms Frazer has kindly agreed to produce an article for our next edition, covering the topics discussed and also those we were unable to discuss due to time restrictions.

The St Albans Legal Walk – 10.9.18

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eams from across the Hertfordshire Legal community took part in the annual St. Albans Legal Walk on 10 September.

The event is run by the Eastern Legal Support Trust, a charity set up in 2010 to raise and distribute funds to legal advice charities across the East of England.

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The 8km walk took place around St. Albans.

Walkers set off from Westminster Lodge Leisure Centre and finished at the Waterend Barn for a well-earned drink! The course was completed in just under 2 hours.

The organisations supported by the Eastern Legal Support Trust prevent families from destitution and being made homeless, and helps

the elderly obtain the support they are entitled to. Since the reduction in legal aid, charities such as the Citizens Advice Bureau rely on the donations they receive to continue providing the invaluable services they offer to the public.

We congratulate the walkers who raised much needed funds to support the fantastic work of charities such as the CAB.

Hertfordshire Law Society Gazette

Editorial Articles

There is a better way...

F

amily Lawyers are well aware that dealing with the end of a marriage or relationship can be one of the most stressful times of a client’s life, made even more complex if there are children to consider. As professional advisers we want to get to the facts and figures to be able to fully advise our client, but they are all too often still going through the rollercoaster ride of emotions of losing their partner and possibly children and home too.

Some of you may already have heard about the Collaborative Approach and an ever-growing group of local Family Lawyers from across Hertfordshire working together to make dealing with divorce and separation more dignified and cost-effective.

So what is the Collaborative Approach ?

• Each client instructs a specialist family lawyer, who has been trained by Resolution in

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resolving matters using the Collaborative Approach • Everything is discussed and negotiated at round table meetings • A Participation Agreement is signed by everyone at the outset – to confirm they will not bring up the past, will be open and honest during the process, and will not issue court proceedings (other than by consent) • The process works at the pace of the clients – with meetings arranged to suit the clients and lasting as long as they want (within reason) • We can discuss children or financial issues, or both • Other experts can be brought into the meetings as and when needed – Financial Neutrals to help with discussing investments and pensions and/ or Family Consultants to help with the emotional impact of the relationship breakdown The Collaborative Process allows the clients to take more control of their situation and to find a reasonable and fair outcome that works for everyone. They

are not constrained by a court timetable and the decisions of a Judge (who has never met them before). Clients have to be warned at the outset that if the process breaks down, both of them have to instruct new lawyers, and any “offers” are withdrawn. However, it is often this extra bit of pressure which makes the approach so effective and gives regular, positive outcomes.

As Collaborative Lawyers, we are trained to work WITH our opponent during the process, rather than against them – relying on the old adage that “two heads are better than one”.

The hope is that two specialists should be able to come up with enough suitable options that the parties can discuss and agree a way forward.

It is a requirement of Resolution for ongoing qualification as a Collaborative Lawyer that you regularly attend local Pod meetings (local groups of your collaborative practitioners – bringing together Lawyers,

Financial Neutrals and Family Consultants) and get sufficient soft skills training each year.

The Hertfordshire Pod Group meets bi-monthly in Hatfield and every November has a training day. This year it will be held in Ware on 22nd November 2018 and will have a range of speakers from James Pirrie and Suzy Powers, both experienced and well-received speakers and trainers for Resolution (as well as having day jobs!), to Richard Mullender, a hostage negotiator presenting on listening skills.

If you would like any more information on the Collaborative Approach and/ or are interested in training to become a Collaborative lawyer, please speak to anyone within the Herts Collaborative Group – contact details of all our members are available at www. herstfamilylaw.co.uk Amanda Thurston, Curwens LLP amanda.thurston@curwens.co.uk.

Hertfordshire Law Society Gazette

Editorial Articles

National Surrogacy Week 2018 – law progress to keep up with modern families W

hen I first s t a r t e d practising surrogacy law around 12 years ago, the subject was taboo, little talked about, misunderstood and many people were uncomfortable about the thought of surrogacy. There were very few surrogacy law specialists in the UK and those that did practice at that time saw more altruistic arrangements than commercial ones. Happily things have moved on, and at the beginning of August 2018 the first ever National Surrogacy week was launched to help with the aims of celebrating surrogacy, raising awareness and recognising the work of surrogacy professionals.

At present, there are more positive stories in fictional TV, less of the extreme documentaries and generally an acceptance of, and positivity surrounding, gay couples having a child via surrogacy. The tabloids still look for the headline, but over the last few years there have been many emotionally sensitive articles and documentaries highlighting the amazing experience of surrogacy. There are more family lawyers with experience of this work and many more parental order applications are being made.

Back in March when Tom Daley and Dustin Lance Black announced their intention to have a child through surrogacy, Dustin recorded an honest and thought provoking podcast with Radio 5 Live. Dustin talks of the different reactions to their surrogacy arrangement in the USA versus the UK. He explains that the reception was warm in the USA, where the process is understood and there is legal clarity. In the UK, some comments were not so friendly; there are still misconceptions about what surrogacy is and the legal framework isn't so encouraging.

From a legal perspective, we have seen change over 10 years and the present legal position, whilst not ideal, does its best to help families who have chosen surrogacy. Judges have flexed the black letter law so that the required

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criteria in section 54 of the Human Fertilisation and Embryology Act is applied with some flexibility and the best interests of the children are at the forefront of decisions made. That said, surrogacy is complex because it is not regulated in this country and there is no cross jurisdiction recognition of surrogacy arrangements or parentage orders.

It is worth explaining that there are two types of surrogacy: traditional and gestational.

A traditional surrogate will be the child’s biological mother whereas gestational (or host) surrogacy is where the surrogate undergoes IVF and she has no genetic connection to the child.

Overview of the law The law in England and Wales, in summary, is as follows: • Surrogacy arrangements and contracts are not legally binding in the UK. This is the case even if the surrogate has absolutely no genetic connection to the child. Disputes between intended parents and surrogates are rare and, if there is a dispute, then the court would intervene to make a decision based on the child’s welfare. This is completely at odds with the position in other countries where surrogacy is a commercial industry and the agreements are enforceable and binding.

• An order made abroad recognising the intended parents as the legal parents is not recognised in the UK. There is no cross jurisdiction recognition of pre or post birth orders. This can be the most frustrating aspect for clients: they are recognised as the parents in the country of birth but not in their country of residence.

• The surrogate (the birth mother) is the legal mother until the court makes an order removing her parentage status.

• Intended parents can make an application for a parental order, which has the effect of recognising them as the legal parents (and removing the legal status of the surrogate).

• Payments to a surrogate are NOT illegal but insofar as they are above reasonable expenses, they have to be authorised by the court in any parental order application.

Conditions for the making of a parental order A parental order application can be made by two applicants who are married, civil partners or living together as partners in an enduring family relationship.

The following conditions must be met for a parental order to be made: 1. The application must be made within 6 months of the child’s birth; 2. The surrogate must fully consent to the parental order, understanding that she will give up all of her parental rights and status; 3. Payments to the surrogate, save for reasonable expenses, should be retrospectively authorised by the court and a full account of all payments made will need to be provided in the application; 4. There must be a genetic connection with one of the applicants and the conception must have taken place artificially and not through intercourse; 5. At the time of the application and the making of the order, the applicants must be over 18, the child’s home must be with the applicants and one of the applicants must be domiciled in the UK. As part of the court process, a parental order reporter (from CAFCASS) will be appointed and will report to the court on the conditions and the welfare of the child. The reporter will normally recommend the making of a parental order.

International surrogacy considerations

and

immigration

Surrogacy now presents a large amount of choice to intended parents and detailed research is essential. Surrogacy is available in Canada, USA, Cyprus, Georgia, Greece, India (though much more limited), Mexico, Ukraine and some newer offerings. In the UK, it can be difficult to find a surrogate because of the limitations in the Surrogacy Arrangements Act 1985 which prohibits negotiating surrogacy agreements on a commercial basis and advertising for surrogates. There are some carve outs for not for profit agencies

Hertfordshire Law Society Gazette

Articles

and we now have 3 or 4 active surrogacy agencies in the UK.

the UK and a timeframe in which the British passport needs to be obtained.

Intended parents will have to choose an IVF clinic and possibly an egg or sperm donor depending on their personal circumstances. If they are going abroad for the arrangement, there will be complex immigration considerations to bring the child into the UK after birth. British nationality can descend one generation to a child born outside the UK so the intended father may be able to pass on his British nationality. The child can become British through a registration process and/or automatically on the making of the parental order.

Intended parents will also need to consider their estate planning; some countries will require a Will to be in place before entering into the surrogacy arrangements.

If the birth country does not give the newborn a local passport, the intended parents will need to apply for a British passport from abroad. The FCO has advised that these applications can take several weeks, if not months, and intended parents may need to prepare for an extended stay overseas once the child is born.

If the birth country has given a local passport there will still be visa considerations on entering

http://www.hertslawsoc.org.uk/

Future developments The future for surrogacy law in this county is bright. Parental Order applications have increased by almost 90% over the last five years according to the CAFCASS national database which records the number of Parental Order applications received by the courts in England and Wales. Over 300 applications were made in 2017.

Surrogacy is on the agenda for reform with the Law Commission. In December 2017, it was announced that surrogacy would be one of the projects in the 13th project law reform. Work is expected to take 2-3 years.

In addition, a remedial order is going through

Parliament to allow a sole applicant to apply for a parental order (as explained above, at the moment only couples can apply).

In March 2018, the Department of Health published its Surrogacy Pathway giving much needed guidance to those considering a surrogacy journey in England and Wales.

These developments are positive and show that surrogacy is now not only accepted but also valued.

Having seen the hugely positive impact of surrogacy over the last 12 years, I believe that intended parents shouldn't be held back from parenthood, motherhood or fatherhood, by legal challenges and outdated law. In my view we need to embrace the advances in fertility treatment which facilitate these much wanted children to be born. I am hopeful that the law will catch up with the changes in our society and encourage modern families.

Claire Wood Senior Associate Rayden Solicitors

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Articles

Hope for the best, but plan for the worst whatever happens. Some of these “what ifs” are difficult to talk about but they do need to be considered: “What if your partner dies before you?”; “What if your children die before you?”; and “What if your whole family were to die in a tragic accident with you?” .

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he majority of people are aware of the importance of having a Will prepared and the Legal Profession in particular are often found ‘beating the drum’ as to the significance of making a Will, no matter how inconsequential it may seem at the time. However, sometimes just having a Will is not enough. The sad tragic death of Richard Cousins in a plane crash at the turn of the year has demonstrated that not only is it important for one to have a Will but that it is also important to ensure that your Will is properly drafted and specialist legal advice sought.

Mr Cousins, 58, who was chief executive of Compass Group, died in the crash in Sydney on New Year's Eve 2017 alongside his fiancée, magazine editor Emma Bowden, 48, her 11-year-old daughter Heather, and his sons, Edward, 23, and William, 25, all of who are thought to have been Mr Cousins primary beneficiaries under his Will. This may not be surprising, as most people make a Will to ensure that their closest loved ones inherit. However, what happens in circumstances such as those of Mr Cousins, if you and your loved ones are all tragically killed in the same accident?

One of the most important tasks for a solicitor when writing a Will is to help clients consider different possibilities when it comes to their death. Such as what happens in the most tragic of circumstances and clients may want to consider including a 'common tragedy clause', sometimes referred to as a doomsday provision in the Will. This is a clause to cover what happens in the worst case scenario of the main beneficiaries dying. A properly drafted Will should work so that the right people, relations or chosen charity inherit

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These are difficult and sometimes upsetting questions, but they are essential.

In the case of Mr Cousins thankfully he had the foresight, and presumably the guidance from specialist lawyers, to write his Will taking account of circumstances where all his family were to die at the same time. It is understood that in the absence of his sons and his fiancée and her daughter surviving, his Will provided for substantial legacies to his two brothers with the bulk of his estate (thought to be approximately £41million) going to his chosen charity, Oxfam.

What happens if there is no ‘Common Tragedy Clause’?

If an individual does not succeed in disposing of his entire estate through a Will then a full or partial ‘intestacy’ will occur and the undisposed part of the estate will pass in accordance with the intestacy rules, as follows: 1. Where there is a surviving spouse or civil partner who survives: 1.1 If there are no children or remoter issue, then the spouse or civil partner takes the whole estate.

1.2 If there are children or remoter issue of the intestate, then the spouse or civil partner takes:1.2.1 the personal chattels absolutely 1.2.2 A fixed sum of £250,000 (if there is enough in the estate) 1.2.3 The rest of the estate is split equally into two halves. The spouse or civil partner takes one half absolutely and the children (or any issue in substitution of a deceased child) take

the other half.

2. Where there is no surviving spouse or civil partner who survives but the intestate does leave blood relatives, their estate passes in the following order, passing to the next category only if there are no surviving members in a preceding category: 2.1 Their children equally (or any issue in substitution of a deceased child).

2.2 Their parents (equally, if both alive).

2.3 Their brothers and sisters equally (or any issue in substitution).

2.4 Their half brothers and sisters (or any issue in substitution).

2.5 Their grandparents (equally, if more than one alive).

2.6 Their uncles and aunts (or any issue in substitution).

2.7 Their half-uncles and aunts (or any issue in substitution).

3. Where an intestate dies leaving no blood relation, their estate passes as bona vacantia to the Crown, the Duchy of Lancaster or the Duke of Cornwall.

So in the case of Mr Cousins, had he not included a common tragedy clause, his whole £41million would likely have passed to his brothers and clearly this was not what he wanted. In spite of the tragedy, his thoughtfulness and the advice he obtained when preparing his will meant his wishes were carried out.

Even if you don't have an estate worth millions, such extreme events should always be considered and this sad tale demonstrates the importance of using a Solicitor to draw up your Will to ensure all eventualities are covered.

Steven Hamilton is a Partner and Private Client solicitor at Taylor Walton Solicitors Steven.hamilton@taylorwalton.co.uk

Hertfordshire Law Society Gazette

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Events

The Hertfordshire Local Family Justice Board training day Date: 17 October 2018 Time: 09:00–16:00 Admission: £35.00 Venue: The Fielder Centre, University of Hertfordshire Hosted by the Hertfordshire Law School and the Designated Family Judge His Honour Judge Vavrecka, this conference is a must attend event for all those involved in the family justice system with a professional or academic interest.

Guests include Mr Justice Newton and His Honour Peter Wright.

Speakers include Hannah Markham QC, Dr Juliet Butler (Consultant adult and adolescent psychiatrist) and Liam Feasey of Lextox. In addition the programme also includes speakers from the Hertfordshire Police, Change, Grow and Live and Social Workers from Hertfordshire County Council.

There will also be a panel discussion with Mr Justice Newton and His Honour Peter Wright.

This conference is an essential local training day for both private and public family lawyers.

Booking and further information Book now for this conference by going to the following link: https:// www.herts.ac.uk/about-us/events/2018/october/hertfordshirelocal-family-justice-boards-family-law-conference-2018 The cost is £35 per delegate and this includes refreshments and lunch.

If you require any more information about this event please contact the Events Team, events@herts.ac.uk The Hertfordshire Local Family Justice Board

http://www.hertslawsoc.org.uk/

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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 firstparty 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 antivirus protection. The cost to the criminal is modest compared to the prize of the ransom that people will pay to get their business up and running again.

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• 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.

Hertfordshire Law Society Gazette

Charity

Legal sector joins forces to celebrate Remember A Charity Week

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.

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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 billion 1 for good causes annually, funding vital services across the country.

Remember A Charity in Your Will Week (10-16 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 Willwriters within Remember A Charity’s network of 1,400 legal supporters will promote the concept of legacy giving to clients, displaying campaign materials in their offices.

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

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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 willwriting 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 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.”

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 ‘charity-powered’ 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

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

Education

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rom September 2018 the University of Hertfordshire’s Law School will be

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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

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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 offsounding 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.

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 passiveaggressive 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

Hertfordshire Law Society Gazette

Education

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rom September 2018 the University of Hertfordshire’s Law School will be

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Advertorial

Solicitors and judges “unenthusiastic” about new electronic bill, say Costs Lawyers

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any solicitors and judges were not ready for the electronic bill of costs when it became compulsory in April and few are keen on it now, according to a survey by the Association of Costs Lawyers (ACL).

There are, however, small signs that solicitors are getting better at budgeting.

The poll of 82 Costs Lawyers found that only 10% said all the solicitors they dealt with were ready when the new bill came into force, compared to 56% who said none of them were.

Asked what solicitors’ reaction had been since, half said there was either a lot of lastminute panicking (13%) or had asked the Costs Lawyer to sort it out for them (37%). One in six solicitors preferred to stick their head in the sand and just put off dealing with it.

Just 6% of Costs Lawyers said their solicitors had managed a smooth transition to the new regime.

Things were no better on the bench. Just 16% of Costs Lawyers reported that “some” judges were ready for the new bill, while only 5% found that the courts were “keen to get going” with it. Some judges would use their discretion

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to waive use of the bill for as long as they could, Costs Lawyers said, while others could not get going even if they wanted as they had still not received the training or technology required.

The ACL conducts surveys of members twice a year and has been tracking views of solicitors’ approach to budgeting since autumn 2016. Some 20% of Costs Lawyers taking part this year said the solicitors they worked with were now sticking to their budgets, while 51% said they sometimes went over. More than a fifth (22%) said solicitors always exceeded their budgets. In each case, the figures show slow improvement on previous surveys.

Respondents were asked their view on one particularly topical budgeting issue, namely whether a costs judge who reduces the hourly rates for incurred costs should then do the same to budgeted costs. Two-thirds (65%) said no – coming within the budget should be sufficient.

There was also continuing concern about the inconsistent application of the proportionality test by judges, with 56% saying that Court of Appeal guidance was needed.

ACL chairman Iain Stark says: “It is perhaps no surprise that many solicitors are struggling to come to terms with the new bill of costs, with many yet to have either the technology or the time-recording processes in place. But the time will come, sooner rather than later, when they will literally pay the price for their failure to adapt.

“Most district and costs judges will not have yet dealt with an electronic bill, due to the time lag in them reaching court, which is fortuitous given some of the delays in providing training and technology. But both judges and lawyers will have to get on top of it – this is, without doubt, the future.

“With the culture of compliance that has sharpened since the Jackson reforms, I would not be surprised to see judges clamping down on those who wilfully ignore the electronic bill.”

For further information, please contact: Kerry Jack, Black Letter Communications Tel: 020 3567 1208, kerry.jack@blackletterpr.co.uk

Hertfordshire Law Society Gazette

Expert Witness

How can you really be heard?

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by Chris Makin

e 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?

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!

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.

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!

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.

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.

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

Biog: 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

This ‘day in court’ comes 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

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Hertfordshire Law Society Gazette

Mr Sameer Singh MBBS BSc FRCS Consultant Orthopaedic Surgeon

Mr Sameer Singh is an experienced expert witness in personal injury and medical negligence cases relating to his specialist areas of expertise. These include: • All aspects of trauma soft tissue and bone injuries • Sports Injuries • Upper and Lower Limb Disorders and Injuries • Whiplash Injuries His practice concentrates on shoulder, elbow and hand disorders, using techniques that are tailored to patient needs and utilising accelerated rehabilitation techniques to promote faster recovery and reduced time off work.

Mr Singh completes over 200 medico legal reports per year and offers an efficient turnaround within 10 days from receipt of all relevant documentation. He can take instructions for cases on behalf of either claimant or defendant.

Clients can be seen in clinic locations in Bedford and Milton Keynes.

T: 01908 305127 M: 07968 013 803 • www.orthopaedicexpertwitness.net E: orthopaedicexpert@gmail.com • www.shoulderelbowhand.org

http://www.hertslawsoc.org.uk/

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Expert Witness

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s we move into the mainstream digital age, the role of the expert

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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 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.

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-Legal-Cashiering, 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.

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

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Hertfordshire Law Society Gazette