Herts Law Society Gazette issue 57

issue 57 Winter 2023/24

A New Year, A New President...

Hertfordshire Law Society Gazette

HLS Welcomes Kirsty Richards

Also this issue:

• Challenging Stereotypes in domestic abuse cases • Employment Law: What to look for in ‘24 • Neurodiversity in the family justice system • and much more...

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Contents

Hertfordshire Law Society Gazette

Contents issue 57 Winter 2023/24

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Council Members for 2024 From the President From the Vice-President January yet again...

Challenging Stereotypes in domestic abuse cases What to look for in ‘24 Neurodiversity in the family justice system

Published by: EAST PARK COMMUNICATIONS Ltd. Maritime House, Balls Road, Birkenhead, Wirral CH43 5RE Tel: 0151 651 2776 simon@eastparkcommunications.co.uk www.eastparkcommunications.co.uk

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Are Schedule 1 Claims just for the Super Rich?

Record breaking year for charity legacy income Have your say in the Probate Inquiry Estatesearch uncovers over £1.5 million of unknown assets LEAP and WillSuite Book Reviews

Advertising Simon Castell

Design David Coffey East Park Studio

Managing Editor Steve Hamilton

Accounts Tony Kay

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2023 in Review: Don’t let complacency ruin your credibility The impacts of personal goodwill on business valuations The importance of a DNA test for Immigration applications Deputyship and Statutory Will Applications: How does a probate genealogy firm help?

Published: Winter 2023/24 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 2024 President Kirsty Richards of National Legal Service (Family Lawyer) Vice President Massimo Trebar of Lawtons (Criminal Lawyer) Hon Secretary and Treasurer Judith Gower Immediate Past President Diana Kirsch University of Hertfordshire (Hatfield)

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Members Steve Hamilton Taylor Walton LLP (Harpenden) Private Client Marilyn Bell SA Law (St Albans) Family Paul Davies Hamilton Davies (Stevenage) Employment, Family and Litigation

(From January 2024 until 31 December 2024)

Tahir Nisar Whiskers

Neil Johnson Gisby Harrison

Michael Scutt Crane & Staples, Employment and Dispute Resolution

Suna Duzgan National Legal Service

Claire Sharp Debenhams Ottaway (St Albans) Private Client Penny Carey (University of Hertfordshire)

National Council Member

Alexander McDowall Hertfordshire County Council Nicola Smyrl of Taylor Walton (Luton and an Employment Lawyer) Laura Woolard of Taylor Walton (St Albans and a Family Lawyer)

Josephine Duchenne National Council Member for Hertfordshire and Bedfordshire (from 15th October 2021) The Law Society Relationship Manager – East Jack Dunkley Parliamentary Liaison Officer Judith Gower

Hertfordshire Law Society Gazette

Editorial

From the President...

I remain quite humbled and extremely honoured to step into the role of President of the Hertfordshire Law Society for 2024 and I will do my utmost to represent the interests of our members.

I wish to thank Diana Kirsch for her work as the outgoing President; a role that she carried out seemingly with ease and with such enthusiasm that I have no doubt she will be a tough act for follow. It was a privilege to assist Diana as her Vice President in 2023 and to be a small part in her arrangements for the Annual Dinner at Hatfield House in July 2023, which was a truly fantastic evening – only the second Annual Dinner to be arranged post covid and it was so good to see the Halls of Hatfield House filled with smiles and support of the local community of lawyers and friends of Hertfordshire Law Society. Diana and I have now supported each other in our usual day to day roles for a few years, with National Legal Service supporting the Hertfordshire Law School in events and with their advice clinic, as well as taking part in a hugely successful mentoring programme for 3 students (one of whom has just commenced paid employment at NLS in January 2024). I have no doubt that Diana and I will continue to support each other over the coming years.

And thank you to Massimo Trebar, a criminal defence solicitor, who has accepted my offer for him to support me in my presidency as Vice President for 2024. Given that we both navigate clients through legal systems largely supported by legal aid, I believe that we will have a shared interest in seeing what developments can be made in respect of repairing legal aid and ensuring ongoing access to justice for some of the most vulnerable members of our society. So, thank you Massimo.

And thank you also to Judith Gower, who has agreed to stay on as Honorary Secretary and Treasurer for me in 2024.

Judith, being a past president herself and a long standing member of Hertfordshire Law Society, is a fountain of knowledge and I am hugely grateful to Judith for her sharing her knowledge and wisdom in all things related to this wonderful law society.

As many of you know we have booked this year’s annual dinner on Friday 7 June 2024; returning to the ever so popular Old Palace at Hatfield House. Formal invitations to all our members will follow, shortly. Our headline sponsors were, thankfully, confirmed before the end of 2023 and I know that National Legal Service will also be supporting the

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event generously this year, for which I am truly grateful. As always, it will be a night to remember, with a key note speech, charity support for Raphael House, legal awards, photo booth, magician and caricaturist and of course popular live music from the band Time Flies. I hope you, your colleagues and friends will all join me in attending the annual dinner; an evening that always celebrates our local firms (in the awards) and provides that opportunity for the local legal community to come together for a special evening.

For those that do not know me, I am a Director, Head of Family and Training Principal at National Legal Service (“NLS”). Our business specialises in all things family law, with domestic abuse at the heart of what we do, with 75% of our work concerning domestic abuse. NLS achieved the title of the largest provider of legal aid for domestic abuse cases within our first year of business (2018) and we still retain that title today; making us by far the largest domestic abuse firm in the country. We remain committed to making a positive impact in the lives of our clients, enabling them to move forward in their lives with some protection in place from any violence and abuse that has occurred and then offer them the wider family law advice and representation that they may need. We have a very large number of accredited solicitors that specialise in care proceedings, representing parents, children (and now local authority’s as well). We have expanded our business from just 20 fee earners in 2018 to around 135+ in early 2024 (with a total workforce of 160+) and plans to continue expansion into 2025.

We deal with extremely upsetting and traumatic work at NLS given our specialisms in domestic abuse and care proceedings and we do a lot of community and probono community work to try and give back as much as we can. As at the end of 2023, we were connected with over 60 local community centres and advice clinics all over the country; which sees our lawyers volunteering their free time to ensure access to justice and to outreach into areas where there perhaps is limited support available. We also opened over 100+ probono files despite only being in our 6th year of business, as the legal aid cuts have seen so many people ineligible for legal aid and without the means to pay for legal advice. Our teams of lawyers have given that free time and representation to clients to further ensure access to justice in cases where it has been clearly obvious they would not be able to navigate the family justice system without legal representation; often cases concerning children where domestic abuse features (but they do not necessarily have the necessary “gateway evidence” to access public funds).

It is with those issues in mind that I published my President’s welcome on the Hertfordshire Law Society website, which if you have not already seen, can be read via this link: https:// hertslawsoc.org.uk/news/a-welcome-from-our-new-president/ (article continues over page)

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Editorial Articles

From the President... continued

I have started in my Presidency by reaching out to local law firms that do not have any members in our society, to tell them a bit about me, about some of my visions, discussing what Hertfordshire Law Society has to offer and asking them to join us. I will be following up with those firms in the coming weeks having had some initially, very positive responses. I hope to increase our membership numbers by early Spring 2024 so that we have those increased numbers ahead of our next meeting.

I have also spent my first few weeks linking up with as many different law society presidents and vice presidents on social media platforms and have been fortunate to attend a Southern Area Association of Law Societies (SAALS) meeting in Andover on 18 January 2024 where I met some incredibly inspiring lawyers that I will be seeing again in July 2024, if not before. A photograph from our lunch that we enjoyed at that meeting can be seen above.

During our meeting at SAALS we shared ideas on how to run successful law societies and among other things we received reports from council members Josephine Duchenne, Peter Watson Lee and Adrienne Edgerley Harris which were incredibly insightful (Josephine’s reports having been provided to our committee members at the end of 2023). It is of course always insightful to hear what our National Law Society is doing and this year Nick Emmerson is President having taken office in October 2023,

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supported in his role by Vice President Richard Atkinson and Deputy Vice President Mark Evans. I had already reached out to Chancery Lane at the end of 2023 to see if any of the chancery lane representatives would attend our annual dinner this June and I will follow up with that inquiry in the coming weeks.

I have already been invited to join some other events in April and May of this year and it already looks like it will be a busy year and I hope to share the knowledge I gain from other law societies to help assist our council and law society to grow over the next 12 months.

I have also secured a series of training webinars that will be available to our members from 33Bedford Row (commercial and civil topics) and I hope to be able to confirm those details after the meeting I have with them early March 2024.

I look forward to hearing from anyone that has ideas on what you would like your council to deliver and how our law society can help you this year. I welcome ideas and your suggestions and hope that we have a very positive 2024 working together.

Kirsty Richards National Legal Service President, Hertfordshire Law Society

Hertfordshire Law Society Gazette

Editorial Articles

From the Vice-President...

Massimo Trebar

I

t was a huge honour to be nominated Vice President of Herts Law Society, and it was genuinely something that came completely out of the blue for me, having been only co-opted onto the committee as Criminal Law member in the summer of 2022. I grew up in Herts, and after university and qualification periods eventually returned to Herts once I qualified as a Criminal Law Duty Solicitor in the 2000’s, and have been living and practicing in Herts since 2006.

I am a Senior Solicitor and Partner at Lawtons Solicitors based in St Albans.

Carrying on from my Director at Lawtons, Steve Halloran, who was Herts Law Society President in 2018, and had previously been a longstanding Criminal Law Committee member; my primary focus is of course Criminal Law. I am particularly interested in funding issues and the ongoing saga of Criminal Legal Aid, which is now being played out with a Judicial Review being brought by the National Law Society against the decision of the current Government not to implement the recommendations in full of the Government’s own Independent Review of Criminal Legal Aid. There is expected to be a decision in this case early in this new year.

Further to this I have a general interest in and commitment to Legal Aid in general; as first enacted by Clement Attlee’s Labour Government, in the Legal Aid and Advice Act 1949, and, arguably, largely removed by the Conservative and Liberal Democrat LASPO Act of 2012. The result is that Legal Aid has been largely removed from a large amount of Civil Law. With these commitments in mind I am motivated to increase awareness of these issues. One of the first meetings I have

January Yet Again

had in this position is with the Access to Justice Foundation. They are a charitable organisation who provide support and limited funding to Pro Bono lawyers working in the civil law fields of Advice in areas of Immigration and refugee status, women’s rights, Debt, and Housing, Employment and Family. It is in these areas, arguably, that advice deserts have emerged as a result of LASPO, and, therefore the work by the Foundation in these areas is all the more critical. This is a link to the recent article in the Law Society Gazette to their Social Justice Access to Justice Foundation unveils social justice programme to fund qualifying work experience | Law Gazette* *https://www.lawgazette.co.uk/news/ social-justice-initiative-to-fund-qualifyingwork-experience/5118515.article?utm_ source=gazette_newsletter&utm_ medium=email&utm_campaign=Axiom+Inc e%3a+SRA+chiefs+to+be+grilled+%7c+PO +lawyers+feared+%e2%80%98PR+storm% 27+%7c+In-house+and+groupthink_01%2f 24%2f2024 Massimo Trebar Vice President, Herts Law Society Partner, Lawtons Solicitors

the house. The little one is trying hard to emulate her brother but luckily, she can’t move yet. I have a horrible feeling that she will be moving soon. Last time they all came it was with a friend of their daughter so she was able to keep me safe.

When the weather was so cold I stayed inside most of the time. I even had to hide under the pillows to make sure my butlers didn’t try to persuade me to go out for any longer than I had to.

I

hope that you all had a good Christmas. My butlers left me on my own on Christmas day as they went to see their daughter and the golden ones.

They even stayed the night and they didn’t ask my permission. I suppose it

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was better than all of them being here.

Their daughter has a door key still and has come in when my butlers are not here. I don’t mind it unless she brings the golden one as he can chase me round

My hooman mother must love me really as she commissioned a pendant which is supposed to look like me. Personally I think I am much more beautiful; don’t you agree?

Keep warm until next time. @princessgigi2019

Hertfordshire Law Society Gazette

Articles

Challenging Stereotypes in domestic abuse cases O ur work at National Legal Service (NLS) involves a lot of specialist advice and assistance in respect of family law act applications. It is and will always be at the heart of what we do at NLS and because of the high number of new clients we help every month, and the fact that we issue applications all over England, we get to learn a lot about how other professionals, the judiciary and litigants in person approach this area of law.

What we see a lot, is that many of us have prejudices that we probably are not consciously aware of. There are the more obvious stereotypes of “what a perpetrator looks like” but there are also the more subtle stereotypes of “what a victim looks like” and for many victims not only are they trying to survive and move on from the trauma of domestic abuse but the are dealing with the added trauma around victim shaming and victim blaming.

If we start with perpetrators of domestic abuse; most people (perhaps without even knowing) will have an image in their mind or a profile of what a perpetrator would look like and act like. But the reality is some of the most dangerous and prolific perpetrators of domestic abuse are charm offensive, they are highly skilled manipulators, they are in positions of power (either in the work place and/or in the community). When victims/survivors of domestic abuse are attempting to take a stand against their abusers and are met with comments like “but I have never seen [him] act like that..”; “he’s always been so nice when we’ve been round their house”, you are actually feeding into the abuse in those situations as the perpetrator may have long threatened (and boasted) that “if you tell anyone, know one will believe you over me; you are nothing”.

Perhaps one of the reasons some of these preconceptions exist is due to fear.

Fear that these highly abusive acts of violence, abuse and harmful behaviours can be carried out by people that you

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can not easily spot; they otherwise blend into society, they are perhaps respected in society. If we can’t stereotype and if we also find ourselves manipulated by perpetrators then we are complicit in that abuse and that is a very uncomfortable set of thoughts to grapple with. Fear can make us all shut down and go into fight or flight mode (or a frozen state). Fear can lead us to not want to change.

But I think we have to change as a society.

We need to be aware that perpetrators can be anyone, they can be any sex, race or gender, they can be in positions of power, they can be “your” friend. They can be anyone.

Those reporting domestic abuse have an exceptionally hard task as they not only have to find the inner strength and self believe to take a stand against their perpetrator but they have to do so from a position of heightened fear and also knowing; that most people are not going to believe them. That is a massive hurdle to overcome.

As domestic abuse specialists, we instantly reassure anyone coming to us for help that we hear them and we believe them and that we will help to get them safe and that we understand, in circumstances where they are taking on an otherwise respected perpetrator, that it will be hard and accusations will be thrown back at them. We tell them they are not alone and that we will hold their hand and guide them through the family justice system to get them the protection they need to enable them to safely move on with their lives.

Many of the clients we have helped have faced comments like “but if it was that bad, why didn’t you leave?”; “what did you do for that to happen?”; “you haven’t said anything before, why not?”; “you’ve never been to the police for help, why not?”. There are so many more examples but these are just a few that highlight the instant

reaction to hearing the horrors recounted by domestic abuse victims is disbelief.

This could also be due to our own fears.

Fears that we would not want that to happen to us and so we try to find a way to rationalise why the abuse happened, that there must be a way to prevent that happening, that the victim must have somehow done something wrong.

The reality is a victim of domestic abuse has never done anything wrong. All they are ever doing is trying to survive the situation and when they are taking those initial steps to get help, they do not need to be doubted, they do not need to be questioned or blamed for what happened; they need to be heard and they need to be kept safe and as a society we need to accept that sometimes, there are some awful things that occur in what should otherwise be safe relationships, relationships that started from a place of love. Love is safe isn’t it? Well, not always. Intimate partner abuse and abuse from other loved ones, sons, daughters, brothers and sisters all takes place.

Be aware of the fear that we all have present and it is present for a good reason, it is that gut instinct we have, that fight and flight reaction that can keep us safe but… it can also mean that we are stereotyping perpetrators and inadvertently adding to the trauma for domestic abuse survivors by coming at them from a place where they are not believed.

“Prejudice is a learned trait.

You’re not born prejudiced; you’re taught it” - Charles R. Swindoll.

Prejudices can be unlearned through education and discussion,.

Kirsty Richards, Director and Head of Family, National Legal Service.

President of the Hertfordshire Law Society

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Articles

Employment Law: What to look for in ‘24 I f the last year was relatively quiet for employment lawyers, this year is likely to be a bit more active. New legislation coming in will require employers to review every aspect of their employment policies and procedures. The Supreme Court is also due to give Judgment in some important cases and, finally, there Michael Scutt will be a General Election at some point in the year, meaning more changes will be announced if not introduced before the end of this year. Labour has promised an employment rights bill within its first 100 days in office and that could bring significant changes. We will have to wait for the party to publish its manifesto to see what they are proposing.

In this post I shall look at some of the legislative changes which employers need to be aware of, plus a case on settlement agreements which could be significant.

Post-Brexit changes The Retained EU Law (Revocation and Reform) Act ended the supremacy of EU law in the UK from the 31 December 2023. This means that the UK courts are no longer obliged to follow EU legal principles or decisions in cases that arise after that date. To address this the government has issued new regulations to re-state those parts of retained EU law and make changes elsewhere. One such example is the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 to deal with holiday pay and entitlement. For employers this may impact on holiday pay and entitlements. So called “rolled-up” holiday pay will cease to be unlawful (although many employers have continued to use the practice) for staff working irregular hours or on a part-year basis from 1 April. Rolled-up holiday pay will not be lawful for all workers. Those workers who do receive rolled up holiday pay must still take their 5.6 weeks holiday per year.

Of more wide application is the removal of the need for employers to keep records on workers daily working time and in TUPE transfers where the business has less than 50 employees, or fewer than ten employees are being transferred, the business can consult directly with employees rather than having to set up a collective consultation process.

National Living Wage (NLW) From 1st April the NLW will make its largest ever increase from £10.42 to £11.44.

Tips The Employment (Allocation of Tips) Act 2023 will reform the current law on tips and service charges from 1 July 2024 to prevent businesses from retaining some or all of tips paid by card and will instead require the money is paid through to staff without deduction. It should thus ensure that gratuities are distributed fairly amongst staff.

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Flexible Working From 6th April the Employment Relations (Flexible Working ) Act 2023 will give employees a day one right (i.e from the day they start work) to request flexible working. Currently they must have 6 months service to be eligible to make the request.

Employees will be allowed to make two requests in any 12 month period and they will not have to provide an explanation of how the change they request will affect the business. An employer will now have two rather than three months to provide a response, but the lawful reasons for refusing the request remain the same.

The same Act also introduces the right for workers and agency workers to ask for more predictable terms and conditions at work eg in respect of working patterns – expected in September 2024 Pregnancy & Redundancy Pregnant employees and those returning from maternity or adoption or shared parental leave will receive greater protection from redundancy from 6th April. It will extend the protected period in which a pregnant employee should be offered a suitable alternative vacancy over other employees from the time the pregnant employee notifies the employer of her pregnancy to 18 months after childbirth.

Carer’s Leave From 6th April the Carer’s Leave Act 2023 will give employees a day one right to seek one week of unpaid leave annually to care for a dependant with long term care needs. Such a person will be anyone with a condition that deems them disabled within the meaning of the Equality Act 2010, or having an illness or injury, either physical or mental, that means they will need care for more than three months, or through old age.

Sexual Harassment The Worker Protection (Amendment of Equality Act 2010) 2023 regulations will come into force on 26 October. The Equality and Human Rights Commission will publish a Code of Practice on what steps employers are required to take to meet their duties under the regulations. This will be important so watch this space.

Settlement Agreements In the Scottish case of Bathgate v Technip Singapore PTE Ltd, a case on age discrimination, the issue was whether a settlement agreement can compromise an unknown future discrimination claim. The Employment Appeal Tribunal held that it could not which would obviously have significant implications for all employers who use settlement agreements. Judgment has recently been given and the Scottish Inner Court of Session held that settlement agreements can settle future claims but the type of claim must be clearly identified. There is no need for the complaint made to have been foreseen at the time the settlement agreement is entered into, but the wording of the agreement must cover the dispute which does arise. As it is a Scottish case it is not binding on courts in England & Wales but will be persuasive. The main takeaway from the case is that care will need to be taken

Hertfordshire Law Society Gazette

to ensure settlement agreements specify the claims being waived with reference to the statute sections concerned and be clearly expressed. This case shows that practice of appending a lengthy list of waived claims to the end of a settlement agreement is the safest way to proceed.

Hiring and Firing The government’s draft Statutory Code of Practice on Dismissal and Re-engagement, which seeks to address the practice of employers imposing new terms and conditions on employees by terminating their employment and the re-hiring on new, lesser, terms closed last May. The purpose of this Code is to ensure that employers take all reasonable steps to meaningfully consult with employees and trade unions in good faith before imposing change and to prevent threats of dismissal being made to enforce changes. If an employer fails to follow the code then an Employment Tribunal can award an increase in compensation by up to 25%. It is not yet in force and the government has not set a date for it. This is likely to be of significant interest to employers so watch this space.

On the face of it, some of the changes might seem technical in nature, but they should not be ignored. With a general election coming up things can only get …more uncertain.

Michael Scutt Partner, Head of Employment and Dispute Resolution, Crane & Staples

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Neurodiversity

Neurodiversity in the family justice system In terms of the family justice system, there is a movement for change and improved guidelines for dealing with autistic adults and children involved in the family justice system, but there is still much to be done. HMCTS joining the sunflower network is a good step, but this only helps those involved in our work when they are attending court. We need to consider all the other times provision may need to be made for a child or adult with autism who we come across in our work.

Sue Sanderson

A

t the beginning of August 2023, HMCTS joined the Hidden Disabilities Sunflower network. This is a scheme that allows people with a hidden disability to access the support they need. It’s estimated that 70-80% of disabilities are hidden, and such disabilities include autism and ADHD, as well as mental health conditions and chronic conditions such as Crohns disease. People with a hidden disability can wear a sunflower lanyard, which is designed to alert others who are trained about the lanyard to recognise that the person wearing it may have a hidden disability and may require additional help. It also allows for this to be done in a discrete way. Many airports, supermarkets and businesses are already members of the scheme and it is a positive step by HMCTS to support those service users with a hidden disability that they have joined the scheme.

The reason this announcement caught my eye is a personal one. My knowledge of the sunflower lanyard came about from having an autistic child who has benefitted on occasion from the help offered when someone has noticed their lanyard. And it made me think, in my work, what I can do to help those I come into contact with who are neurodivergent?

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There is a saying that “If you’ve met one autistic person, you’ve met one autistic person”, which I have discovered to be very much true, in that everyone’s needs are different. So I hesitate to offer any blanket advice; but there are definitely some things we can all consider when dealing with someone who is neurodiverse. The first thing to bear in mind is that the world is very much set up for those who are neurotypical, so many ordinary, day to days requirements and interactions that would barely register with a neurotypical person may be incredibly stressful for a neurodiverse one.

Talking to strangers, taking public transport, going to a new place – all of these can be extremely stressful to someone with autism.

And if you think of a typical care case it is likely that to involve all of these and more!

So think of what you can do to help.

For instance, if you need to meet with your autistic client, consider how you will do this. People with autism can often find it difficult to read facial expressions or tone of voice and can struggle to understand euphemisms or common expressions. Therefore, you might need to consider if it is acceptable to conduct the meeting over the phone or whether it is better to conduct the meeting over video or in person. You will also need to consider how you phrase what you say to them so that they can understand you clearly, and it is often helpful to outline each topic you will talk about,

keep questions and statements simple and highlight when you are changing topic. You also need to think about if they will be able to cope with coming to see you at your office or if you might want to visit them at home, where they will feel more comfortable.

In terms of other work within a family law case involving a neurodiverse person, consideration needs to be given to ensuring that the people involved with the family, such as family support workers or parenting assessors, have experience in dealing with individuals with autism. This is because how neurodiverse people present to the world can be quite different to how neurotypical people present, and it is important that they are not misjudged as a result. As an example, what could look to someone without the necessary knowledge and experience as a child having a meltdown and a parent being unable to deal with it, may in fact be autistic behaviour that cannot be avoided by that individual. It is important that if your client is being assessed and either they or their children are autistic, this is taken into account in any assessment.

It is also important to note that as many standard interactions for neurotypical people will be far more challenging and draining for a neurodiverse person, it is necessary to ensure they are not overloaded with appointments (e.g. assessments, contact, meetings with professionals) and have time to recover. This is often referred to as “energy accounting” and is an important aspect to bear in mind when dealing with those who are neurodiverse.

In summary, in a world created with neurotypical people in mind, it is important to take some time to think of those neurodiverse people trying to navigate it and see what we can do to make that a little easier.

Sara Sanderson National Legal Service

Hertfordshire Law Society Gazette

Articles

Are Schedule 1 Claims for the Super Rich?

S chedule 1 of the Children Act 1989 gives the Court the power to make orders for financial provision for children. It is more commonly used where the parents of children are not married because those parents do not have the same rights Anna Patsalides as married parents who are going through a separation/divorce. However, there is nothing to prevent a married parent also making such a claim, especially in circumstances where the divorce settlement may mean that their children’s financial needs have not been met.

Historically the view was that Schedule 1 claims were only for the super wealthy given the cases reported were often involving a very wealthy unmarried parent and is perhaps why the number of applications made each year are relatively low.

However, with the increasing number of parents choosing not to get married it is inevitable that the number of applications will increase, and the Court will have to deal with cases where a parent has more modest assets and income.

The Court has the power to make financial orders for; top up child maintenance, lump sum payments and transfer of property. Top up maintenance only applies to those earning more than the upper threshold for the child maintenance service (“CMS”) which currently stands at £3,000 gross per week, but that is not the case in respect of the other orders which the Court can make.

In making a decision in relation to an application the Court will have regard to all the circumstances of the case and in particular: 1. The income, earning capacity, property and other financial resources a parent has or is likely to have in the future.

2. The financial needs, obligations and responsibilities a parent has, or is likely to have in the foreseeable future.

3. The financial needs of a child.

4. The income, earning capacity, property and other financial resources of the child.

5. Any mental of physical disability of the child.

6. How the child was being or was expected to be educated or trained.

2021 were to unmarried couples. With more people choosing to have children together and not get married it is only a matter of time before the Courts will see a rise in the number of schedule 1 claims being issued, as separated parents struggle to meet their children’s financial needs without recourse to their ex-partner’s assets and income.

Additionally that same rise in couples cohabitating, may also prompt an increase in the number of applications under The Trusts of Land and Appointment of Trustees Act 1996. This legislation can help unmarried couples determine what their share is in a property, where this cannot be agreed between the parties. The Court will consider evidence of an express agreement made by the parties as to ownership as well as each party’s intention when purchasing the property. Where a property is owned in one party’s sole name, the Court can also consider whether the other party has acquired a beneficial interest through financial contributions (resulting trust) or where a couple agree that the beneficial ownership should be held in a particular way, and they can demonstrate that they suffered a disadvantage relying on that agreement (constructive trust).

If you are considering purchasing a property with a partner, or have already done so, have children but are not married, or plan to have children, contact Taylor Walton Solicitors to find out what you can do to protect yourself. A cohabitation agreement is essential if you want to avoid later disagreements about the ownership of assets and will assist in avoiding expensive litigation. Alternatively, if you have recently separated and you are concerned about your interest in the home or how your children’s needs will be met, then please do not hesitate to contact Anna Patsalides at Taylor Walton Solicitors, anna. patsalides@taylorwalton.co.uk or Olive McCarthy, olive.mccarthy@ taylorwalton.co.uk.

Anna Patsalides Taylor Walton LLP

The latest figures from the Office of National Statistics show that there has been a huge rise in the number of people living together and choosing not to get married. This equates to approximately 6.8 million people in 2022. Conversely, the number of people aged 16 and over in England and Wales living together who are married has fallen to below 50% for the first time. The data also shows that more than 50% of babies born in

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Charity

Record breaking year for charity legacy income C harity legacy income is estimated to have reached £4bn and bequest numbers almost 140,000 in the year 2022/23 — an annual income growth of 6.5%. This news comes at a time when a growing number of charities are increasingly reliant on gifts in Wills.

The growth estimate is based on this year’s Legacy Monitor from Legacy Foresight - the sector’s annual benchmarking research programme, which gathers data from over 80 charities, accounting for almost 50% of the charity legacy market.

While growth in legacy income is positive news, charities need to be aware that the market is becoming more crowded. With more charities vying to be heard in the legacy market, it is getting harder to maintain and grow share. Smaller charities with smaller budgets are finding it easier to spread their legacy programmes to potential legators as digital marketing for legacies becomes more mainstream.

Charities must therefore be prepared to plan, invest and be creative to secure their space in this evolving sector.

UK legacy income, £bn These results reflect the resilience of the legacy market, with easy and up-to-date access to the latest facts and figures from the UK legacy market now available via Legacy Future’s new Data Dashboard.

Although the upward growth trajectory looks set to continue for the long-term, Legacy Foresight also warns that current economic conditions are likely to negatively impact growth in the coming months - with falling house prices not only impacting average gift values but also affecting the time taken between notification and money being received by charities.

Despite the projected fall in house prices meaning that the medium-term forecast for legacy income is relatively subdued, beyond 2026, the forecast for the legacy market is a lot more positive, with an expected return to accelerated growth. In real terms, legacy income is predicted to reach over £6bn by 2050.

Long-term predicted growth of UK legacy income, £bn

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CEO of Legacy Futures, Ashley Rowthorn, says: “With the huge impact that external forces such as house prices and the probate backlog are having on the legacy market, it’s more important than ever and yet more challenging than ever, for charities to understand how they are faring compared to the market.

“Charities need to stay aware and informed as to what is happening to the external drivers, so they’re able to separate market trends from their own. This will enable a better understanding of their underlying performance and to set realistic budgets and strategies for the future.”

Lucinda Frostick, Director at Remember A Charity, says: “Particularly in such tough economic times, charitable legacies have never been more valued. Fundraisers, finance teams, CEOs and trustees at any charities with established legacy fundraising programmes will no doubt be thankful that their predecessors had the foresight to invest in legacies in years gone by, helping them weather the current storm.

“We can’t control the economic environment, but what we can influence is the propensity for giving and the way in which we inspire people to leave a gift in their Will. Currently, we’re seeing appetite for legacy giving reach record levels. In challenging times, it’s all more important that we continue to collaborate within the sector and beyond, building on legacy growth to normalising charitable gifts in Wills.”

Hertfordshire Law Society Gazette

Charity

Have your say in the Probate Inquiry

T

he Justice Committee has launched an inquiry into the probate service* to understand why there are delays and what can be done to improve the service.

Together with the Institute of Legacy Management, we’ll be contributing a collective sector response, showing how probate delays can impact charities, but also highlighting the importance of being able to access key information about probate output levels, helping charities forecast their legacy income?

Why has this inquiry come about?

Probate delays have been a long-standing issue for His Majesty’s Courts and Tribunal Service (HMCTS), with rising caseloads adding to the backlog of applications held up in the system. Although HMCTS expanded their probate workforce and made improvements to their digital platform, applications continued to exceed outputs for most of this year.

However, since September, we’ve seen a marked increase in productivity, reducing the volume of cases in the system by around 13,000, with October setting a new monthly

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record for probate outputs. While it’s early days, there are signs that the probate service may have turned a corner.

Nonetheless, we’re all too aware that there is still a hefty build-up of unprocessed estates in the system and how challenging it can be for bereaved families and charities alike when waiting for probate to be granted. Legacy income can have a crucial impact on charities’ ability to deliver services.

The Justice Committee is keen to get to the bottom of this and make sure that we have a probate service that gives the right support to beneficiaries, executors and the bereaved. It’s a broad inquiry that will be looking at several areas, including the probate department’s current capacity and resources, people’s experiences of probate and how technology could further improve the system.

What does this mean for charities?

For several years now, Remember A Charity and the ILM have been working with HMCTS to ensure charities’ needs and views are represented. Only last month, the probate department agreed to introduce several new measures** including providing regular

updates and sector webinars to help you forecast more accurately in the short term.

They also committed to include a charitable indicator on digital applications, making it easy to see if an estate includes a charitable bequest and to report on those cases as they move through the system.

Some strong progress has already been made.

But now that this inquiry is open, we have another important opportunity to ensure your views are heard.

Please share your thoughts via this survey*** and these views will contribute towards our collective response to the inquiry in late January. * https://committees.parliament.uk/committee/102/ justice-committee/news/198600/justice-committeelaunches-new-inquiry-into-probate-amidconcerns-over-delays-and-consumer-protectio n/#:~:text=Theinquirywillexaminepeople's,re latingtotheProbateRegistry. ** https://www.rememberacharity.org.uk/about-us/ latest-news/welcome-news-on-probate-from-hmcts/ *** https://www.surveymonkey.com/r/GZBMQ25

17 ▲

Advertorial Feature

Estatesearch uncovers over £1.5 million of unknown assets Directorships and an Unclaimed Asset Search which includes up to 40 additional pension and insurance providers to help locate forgotten accounts, policies and shareholdings. All subjects are automatically enrolled with the Vulnerability Registration Service to prevent fraud and financial abuse against the estate too.

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9 December 2023: Leading legal technology provider Estatesearch has uncovered well over £1.5 million of unknown assets on behalf of private client practitioners working on probate cases.

This represents <1% of the total volume of orders that Estatesearch has processed in the last 12 months.

Ben Furlong, Customer Services Director, Estatesearch confirms: “Our Financial Profile search helps legal firms locate forgotten accounts, policies and shareholdings, often on behalf of vulnerable individuals in probate cases, to ensure they receive inheritance which is rightfully theirs.

Usually, we don’t know the value of any assets which have been identified, however, this year we spoke to ten firms to find out about their experiences of using our Financial Profile Search.

From this small sample, we found that just over £1.5 million of unknown assets had been identified. We work with hundreds of legal firms and so the figure across all of our clients would be far in excess of this figure.”

Estatesearch offers a Financial Profile Search which provides a comprehensive and detailed report to support an efficient fact-finding process, helping Solicitors quickly build a better understanding of clients’ financial affairs to manage and/ or administer an estate effectively. Using information and data from a variety of sources, the resulting report helps support due diligence, with a clear audit trail to demonstrate the steps undertaken to identify all assets and liabilities. The search includes AML and identity trace, Liability Search, Financial Asset Search and, in the Financial Profile Premium, Company

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Cinzia Duncan, Senior Associate, Harper Macleod one of Scotland's leading full-service law firms explains: “Estatesearch’s Financial Profile search proved invaluable [in one case], quickly identifying six bank accounts containing hundreds of thousands of pounds plus an annuity. Uncovering these unknown assets has enabled us to move forwards with the Executry process and will ensure the beneficiaries will now receive what is rightfully theirs.”

Tom Bottomley, Solicitor at Ewart Price an expert legal team based in Welwyn Garden City, Hertfordshire confirms: “One high-value estate included various investments and shareholdings and our client was confident they already had all of the information regarding the deceased’s assets. Nevertheless, we advised our client to run Estatesearch’s Financial Profile as standard due diligence and for her own piece of mind. To our client’s surprise, a significant investment was uncovered by the search of around £38K, which had ramifications for the inheritance tax position. Our client is now reassured that no other assets will come out of the woodwork and no stone has been left unturned.”

Correct identification of assets and liabilities is essential to ensure appropriate distribution of an estate and to ensure Executors meet their obligations in this regard. Failure to identify an asset at the appropriate time can lead to contention and negligence claims between Executors and Beneficiaries, HMRC fines for understated IHT and additional fees

charged for re-administering the Estate, costs which must be borne by the Estate.

However, with accounts increasingly being managed online, families and their executors face real challenges when it comes to identifying and locating the assets of the deceased. Ben Furlong continues: “Over time, it’s easy to lose track of pension pots, premium bonds or life insurance policies. In our own research survey of 2,000 UK residents carried earlier this year, we found that 38% of people don’t know the whereabouts of all their loved ones’ accounts.

“As a result, it is estimated that there is over £200 Billion in unclaimed assets in the UK. With the report for our Financial Profile Search being returned within 30 working days, Estatesearch now offers a cost effective, rapid search solution to provide peace of mind for beneficiaries and ensure legal firms have completed due diligence on behalf of clients providing a clear audit trail to demonstrate the steps undertaken to identify all assets and liabilities in an estate.”

As well as the Financial Profile Search, Estatesearch also offer a range of additional services including, Trustee Notices, Overseas & UK Bankruptcy Searches, Unoccupied Property Insurance, Early Distribution Insurance and Share Valuations.

With no registration or subscription fees, our customers simply pay for the disbursements they need, when they need them.

Ben Furlong concludes: “While we are delighted to have helped repatriate such a high value of missing assets with their rightful owners, over the next year we plan to launch further services to support private client practitioners involved in estate administration as we continue to leverage data and technology to streamline processes. We are led by our clients’ feedback to develop new services that support them in meeting their due diligence obligations and driven to helping them to provide better outcomes for their own clients, particularly those that are vulnerable.”

For further information please visit: https://www.estatesearch.co.uk/services/

Hertfordshire Law Society Gazette

Education

S

F

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

Both

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19 ▲

Advertorial

LEAP and WillSuite launch new end-to-end digital solution for estate planning and management LEAP, the global provider of legal practice management software, and WillSuite, the estate planning innovator, have joined forces to launch LEAP Estates, an end-to-end digital solution for estate management, probate and lifetime planning professionals.

are changing, with healthier and younger people considering lifetime planning.

Each new generation brings a different asset portfolio, and family structures now vary, impacting wills and probate services. Assets have also evolved, with elements like cryptocurrency, NFTs and digital banking now playing a role. We’ve developed LEAP Estates to support Private Client practitioners in meeting the evolving needs of individuals in their lifetime planning.”

LEAP Estates also includes key functionality for will writing, available through WillSuite. This includes mirroring across wills and LPAs, as well as LPA copying. The will writing software provider works in partnership with the Institute of Professional Will Writers and The Society of Will Writers, with over 3,500 wills and 2,500 LPAs drafted on the WillSuite platform each week.

Seb Shakh and Craig Matthews LEAP Estates is a specialist practice productivity solution that equips Private Client practitioners with the tools they need to manage matters on a single platform. Previously, many departments had to use multiple applications for practice management, wills, LPA applications, trusts and probate applications. However, the new solution from LEAP and WillSuite provides a single location for all these functions, improving and simplifying both the practitioner and client experience.

The mission of LEAP Estates is to continually elevate the provision of private client service through innovative technology. Both based in Nottingham and benefiting from the city’s booming technology scene, the two pioneers of legal cloud technology have developed LEAP Estates to support practitioners navigate the changing legal technology landscape.

The solution benefits from the shared knowledge, development capabilities and operational resources from both businesses, which is essential in delivering highly effective software with estate management, probate and lifetime planning professionals in mind.

As a specialised division, LEAP Estates offers intuitive information and processes that can be shared with clients, facilitating dynamic and proactive estate planning. LEAP Estates users will also have access to the software provider’s extensive content library, including new recent additions for Private Client practitioners.

One recent addition to the content library is a document that provides hyperlinks to all the legacy settings on social media. This document is designed to be shared to clients. It offers advice on how to enable legacy settings on platforms like Twitter, Facebook, and Instagram for individuals considering their legacy and making a will.

“Estate planning and Private Client practice probably evolve more rapidly than any other area of law, because it responds to how we live our lives today,” says Craig Matthews, CEO of LEAP Estates. “As a society our attitudes to estate planning

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Seb Shakh, founder and CEO of WillSuite comments, “Since inception in 2015, WillSuite has grown from strength to strength. Our software is now firmly a market-leader, and simplifying the delivery of Private Client work for thousands across the profession is what we do best. This collaboration with LEAP is the next logical step in our journey and pairing our expertise with the world’s largest legal tech platform ensures we can deliver even greater advancements and efficiencies within the sector together through a single integrated solution.”

LEAP Estates can sit within a specialist private firm or a department of a firm. It is also available to accountants offering lifetime planning and probate services, will writers, estate planners and IFAs. For more information, please visit www.leapestates.co.uk.

About LEAP Estates LEAP Estates occupies a unique position in the legal software market, providing specialist software for probate solicitors and estate planners.

With powerful features and functionality, the innovative solution provides everything you need to manage your client’s wills, LPAs and estates efficiently, including case management, accounting, document assembly and management, will building and legal publishing assets in one integrated cloud solution.

For more information, please visit www.leap.co.uk.

About WillSuite WillSuite offers cloud-based software that simplifies the process of drafting Wills, LPAs, and other documents for Will drafters, Financial advisers, Solicitors, and Estate planners. With innovation at its core, WillSuite aids efficiency, minimising errors, and improving client service and has allowed practitioners to generate over 600,000 Wills and 1 million documents since inception in 2015. Partnered with The Society of Will Writers and the Institute of Professional Willwriters, WillSuite includes document automation tools delivering up to date content and clauses written in plain English, seamless integrations, and improved client communication via custom workflows and automated branded channels. Learn more at https://willsuite.co.uk/ contact.

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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21 ▲

Book Reviews

Book Reviews

by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator

Charging Orders On Land Law, Practice and Precedents Second Edition

seeking guidance from this new and updated edition can be confident that they are in good hands. For example, there’s a new chapter on insolvency regimes, plus the inclusion of new CPR procedures and precedents.

Editors: Cecily Crampin and Michael Ransom and members of Falcon Chambers ISBN 978 0 85490 3 436 Wildy, Simmonds & Hill Publishing www.wildy.com

Charging orders on a debtor’s property: clear, authoritative and practical advice from falcon chambers “Charging Orders on Land” has now arrived as a second edition from Falcon Chambers for 2024 -- an event which will certainly be welcomed by counsel embroiled in the specifics of charging orders, which, more often than not, present special problems.

What we have here is a highly specialised and quite narrow area of law in which attention to minute detail is all too often imperative. The precedents at the back of the book are of great assistance to those involved in drafting orders.

Fortunately for practitioners and judges dealing with the challenge of changing orders, this distinguished text published

by Wildy, Simmonds & Hill, presents up to date and authoritative help in what is now regarded as the definitive work on the subject.

Editors Cecily Crampin and Michael Ransom are assisted by nine contributors from Falcon Chambers, known as the set which specialises in land law and landlord and tenant work. Practitioners

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This then, is an ample and detailed compendium of practical advice and guidance on ‘the enforcement of money judgements by means of obtaining a charging order.’ Initially, this may sound straightforward, except that all too often it isn’t, as any number of complications can occur within the various stages of enforcement on which there is a special chapter.

Also read the chapter on priorities and problems and note the specialist advice on sanctions, tenanted property, overseas entities and much more, including the new chapter on corporate and personal insolvency.

Certainly the book can be depended upon to explain or clarify the various -- and seemingly endless -- snags and contingencies that frequently occur within this particular category of law, including (probably the most frequent of all) the cases which come under the heading of ‘Personal Circumstances: the family home’ which typically is balanced against the claims of the judgment debtor’s spouse... or possibly former, or divorcing spouse... or ‘any children who live in the property to be shared.’

It is also carefully pointed out that sometimes in such cases, the charging order can be withheld, or the interest of one party, for example, can be transferred to the other. Small wonder then that, in the opinion of quite a few practitioners, the concept of the charging order all too often presents a serious impediment to selling a house and clogging up the already stretched housing market.

Considering the often complicated and sometimes controversial area of law, it is reassuring for the busy practitioners that this comprehensive and carefully researched legal text is easy to navigate.

The table of contents is almost minutely detailed, and the extensive appendices offer more than 100 pages of statutory material and precedents -- an invaluable resource which will be of special interest to counsel charged with drafting orders.

Also note the tables of cases, statutes, and statutory instruments, plus tables

of European conventions and other material.

Any practitioner involved in this highly specialised area will find this comprehensive and carefully researched legal text well-nigh indispensable.

The date of publication of the hardback second edition is cited as January 2024.

Migrant Support Handbook

By Shu Shin Luh and Connor Johnston ISBN:

978 1 913648 53 4 (book) 978 1 913648 54 1 (ebook)

LEGAL ACTION GROUP The access to justice charity www.lag.org.uk

An indispensable handbook for specialists in immigration law, yet accessible to all interested readers Is there a new law text out there that is more topical than this?

Not to mention more vital than this?

Probably not -- although many may well argue the point. It is indisputable, however, that mass migration, whether legal or illegal, has become an international problem, particularly for the UK -- and in the view of many -- it is a problem that is well-nigh insoluble.

It is fair to say, however, that immigration lawyers in particular -- as well as anyone involved in, or committed to, achieving viable solutions to the problems inherent in migrant support -- will welcome the publication of this book by the Legal Action Group.

Authors Shu Shin Luh and Connor Johnston have noted that the book

Hertfordshire Law Society Gazette

Book Reviews

(conceived some six years ago) was painstakingly researched and written to ‘replace the irreplaceable’ “Support For Asylum-Seekers” by Sue Willman and Steve Knaffer QC, published by LAG in 2009. It is sobering to recall how much and how quickly and relentlessly the world has changed since then -- making the problem of asylum seekers ever more acute.

The date of publication is stated as at December 2023.

Turnaround Management Unlocking and Preserving Value in Distressed Businesses 2nd edition

The publication of this book is therefore all the timelier. And certainly, the almost insoluble complexity of its subject matter is reflected in its more than 1,2000 pages of scholarly and thorough research presented (in the tradition of the LAG) in a clear, accessible style; accessible, that is, not only to lawyers, but to anyone interested in, or involved with, this detailed and certainly controversial and difficult subject, which has occasioned so much debate.

www.globelawandbusiness.com

With its focus on the welfare and legal rights of migrants, the book provides indepth coverage of, for example, housing and welfare, benefits, NHS access and provision and social services, as well as support for failed asylum seekers with reference to special cases; notably unaccompanied children and -- most heart-rending of all -- the victims of human trafficking.

This is a handbook you could almost call encyclopaedic. Certainly, it offers specialists in this wide-ranging and many-faceted and complex area of law, a gateway to further research. Note that the first 150 or so pages contain tables of cases... statutes... statutory instruments... immigration rules... and a table of European and international legislation.

Also, for a volume its size, it is remarkably easy to navigate, containing as it does, copious footnotes, a detailed table of contents and an even more minutely detailed index of at least 115 pages. A handy handbook? Absolutely.

As immigration -- both legal and illegal -- will undoubtedly emerge as a prime issue during elections and beyond, this scholarly yet eminently readable volume will prove indispensable, not only to practitioners, but to anyone interested in the wide-ranging issues inherent in this undeniably difficult area of law.

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

By Alan Tilley ISBN 978 1 78742 982 6

explains ‘usually involves operating in an executive rather than a consultative role’ and as such, ‘exposes the professional to the risks of personal liability.’ You have been warned.

However, no need to despair -- as Tilley adds that operating through a limited liability entity, with a properly constructed engagement contract reduces the risks. Proper professional performance is the ultimate guarantee of risk avoidance.

Anyone in the legal profession or accountancy and/or financial services, might well wonder how this increasingly obvious need for ‘turnaround management’ got started and whether or not it is proving itself effective.

A second chance for entrepreneurs facing insolvency?

Check out this in-depth analysis of ‘turnaround management’ from globe If you are a lawyer with a corporate client -- or clients -- facing financial distress and ultimately insolvency, you need this book, published recently by Globe Law and Business.

Note the usefully descriptive subtitle: ‘Unlocking and Preserving Value in Distressed Businesses’. This says it all, you may say, but as its processes are linked to a complex area of law, there is a lot more to be said, especially when multijurisdictional complications emerge.

With lengthy and detailed experience in this specialised area of consultancy, author Alan Tilley provides a broad range of authoritative advice, aimed specifically at those who are confronted with the undeniably challenging task of advising and managing companies teetering on the sharp edge of insolvency, with its intimidating spectrum of possible consequences.

The book and the wealth of advice therein is aimed primarily at those who find themselves in the role of turnaround manager. Such a role, as the author

The author’s positive answer is that turnaround management is becoming ‘increasingly recognized as an important part of business’ and that the understanding of its obvious benefits is growing. Tilley is confident that the concept has more than likely evolved as a result of the influence of Chapter 11 of the United States Bankruptcy Code of 1970, which is based on the concept of ‘giving entrepreneurs a second chance’ primarily by creating the concept, so called, of ‘debtor-in-possession’ (DIP) -- usually by means of a restructuring plan while the company is protected from creditors.

Better results for shareholders certainly loom large here as a distinct possibility.

Although a complex subject, ‘turnaround management’ is explained in this book with admirable clarity, covering as it does, the risks involved, as well as the potential rewards. Based in the author’s 40-plus years of experience in this field, the consultancy, advice, and guidance contained in this compact volume is high-value indeed. Note too, the handy appendix which contains over 20 pages of useful guidelines and policy recommendations.

With its international orientation, as well as its straightforward advice, this book should be considered as an essential purchase for business and law professionals worldwide.

The date of publication of this hardback second edition from Globe Law is cited as December 2023.

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2023 in Review: Don’t let complacency ruin your credibility EWI Chief Executive Officer, Simon Berney-Edwards, shares his thoughts on 2023, a year where Expert Witnesses have continued to come under increasing scrutiny.

A

s we come to the end of the year, I’m taking the opportunity to reflect on yet another interesting year for Expert Witnesses. Once again, there have been several high-profile cases which have reflected the best and worst in Expert Evidence. So here are my top ten takeaways from 2023.

1. Don’t get complacent You may have many years of experience as an Expert Witness, but even the most experienced experts can get things wrong. Over the last year we have seen: • Numerous reports submitted for assessment which have contained the wrong declarations and/or statement of truth.

• Examples of experts who were coerced by the legal team to do something that they felt wasn’t right, only to have this backfire in court.

• Examples of experts facing criticism in the witness box because they hadn’t addressed all the issues, evidence, or range of opinion.

So...

2. Make sure you are up to date Whilst the EWI will always cover key rule and regulation changes in our monthly newsletter, we have now started emailing members directly when key practice changes happen, or important guidance is issued.

However, why not take some time now to review your templates to make sure are using the correct declarations and statements of truth.

We’ve also created a Report Checklist you can use to ensure every report is compliant and of good quality.

3. Ensure you make yourself aware of some of the recent changes On that note, you are hopefully fully aware of the recent changes that came into force at the beginning of October.

• England and Wales - Criminal Procedure Rules – Change to Declaration • England and Wales - Civil Procedure

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

Rules - New rules governing Expert Evidence in the Intermediate Track If you are not aware and you do work in these courts – it is important you familiarise yourself with these changes now.

4. Preparation is key to avoiding criticism At this year’s Sir Michael Davies Lecture, the Honourable Mr Justice Williams, High Court judge and chair of The Family Justice Council Subcommittee on Experts, shared his views on the criticism of Experts in the courts.

His top tips to avoid it included: • Remember the fundamentals of being an expert.

• Remain within your area of expertise.

• Comply with the relevant procedural codes.

• Don’t take on too much.

• Comply with timetables.

• Communicate any difficulties.

If you would like to hear more of what he had to say, you can access the recording.

5. Remain within your area of expertise The judgment of Mrs Justice Bacon in Sycurio Ltd v PCI-Pal PLC & Anor [2023] EWHC 2161 (Pat) contains an important reminder for experts. During the course of the trial, it transpired that one of the expert witnesses (whose qualifications in their own field were not in doubt) had written a report and gave evidence on matters that were clearly outside their field of expertise. The result was that the judge was unable to accept their evidence on any matter that fell outside their core area of expertise.I am looking forward to hearing Mrs Justice Bacon’s views on this case at our Conference next year!

6. Review your opinion when necessary If another Expert (whose opinion you rely on) changes their opinion, make sure you consider the implications for your opinion. A good example of this can be found in Benjamin Scarcliffe v Brampton Valley Group Ltd [2023] EWHC 1565(KB) which provides important lessons to be learned for all Expert Witnesses.

7. Take a moment to review your CV Back in April, I reviewed the case of Watts v Watts [2023] EWHC 679 (Ch).

This contains several learning points for experts. But one of the key issues affecting

the credibility of the expert was that they had written nothing within their CV to demonstrate that they possessed the specific expertise relevant to the case.

Remember your CV needs to reflect why you can act as an expert in the case at hand.

Need some help? Why not attend our CV writing for Expert Witnesses webinar on the 24th January.

8. Consider how you might deal with dishonesty The case of Muyepa v MOD highlighted the issues faced by Experts when dealing with fundamental dishonesty. Back in January, David Stothard, Managing Director at MAPS Medical, examined that case which was ultimately dismissed as a result of the claimant’s dishonesty.

He concluded by inviting experts to spend some time considering the evidence presented by the medical experts in this case set out in the judgment (paragraphs 167 to 278 inclusive), whether they fall within your area of expertise or not and reflect on how you might have presented your evidence had you been involved in the case.

9. Maintain your independence in discussions of Experts There has been continued discussion during the year of the importance of remaining completely independent during meetings between Experts and ensuring experts do not involve their legal teams in the drafting of the joint statement or act on behalf of the legal team during the discussion. This was further clarified by new guidance from the King’s Bench division that clearly states this.

10. Maintain your credibility Hopefully this will be clear by this point in this article, but some of the most easily rectifiable mistakes will seriously affect your credibility. So, as it is the end of the year, why not take some time to reflect on your practice and think about what you can do to ensure you retain your credibility in 2024.

And with that I wish you every success for the New Year.

Simon Berney-Edwards

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Advertorial

The impacts of personal goodwill on business valuations In determining a value of a business, the treatment of goodwill is often an area that can be challenged and is inherently subjective.

Under IFRS 3, Business Combinations, goodwill is an asset representing the future economic benefits arising from other assets acquired in a business combination that are not individually identified and separately recognised. Goodwill is typically described in two forms: personal and corporate.

Broadly if a trading business is valued based on its earnings, goodwill is the value over and above the value of the net assets (after deducting liabilities) on the balance sheet.

Corporate (business) goodwill belongs strictly to the entity itself. It may involve the company’s name, brand, or location for example. Personal goodwill is directly attributable to an individual’s characteristics or attributes, it relates to what the individual personally brings to the company.

Business valuations are typically based on open market value. International Valuation Standards (IVS 104) defines market value as the estimated amount for which an asset or liability should exchange on the date of valuation between a willing buyer and a willing seller in an arm’s length transaction after proper marketing wherein the parties had each acted knowledgeably, prudently and without compulsion.

The application of the idea of a ‘singleton’ business has become more prevalent in recent cases, specifically it was utilised as a key argument in the divorce case CG v SG (2023).

The phrase ‘singleton’ business refers to a business whereby the operations, profit and success of the business is reliant upon one individual. Therefore, the company has high personal goodwill. In general terms corporate goodwill adds more to the overall business valuation than personal goodwill.

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The divorce case (CG v SG) involved a husband’s interest in a financial service limited liability partnership. At the time of the hearing the husband was the sole partner therefore the judge concluded that the LLP was a ‘singleton’ business whereby the operations were dependent on the client relationships of the husband.

Moreover, it was highlighted that the husband generated the vast majority of the partnerships fee income and that this was made possible by his business contacts, knowledge and reputation.

In the case of a singleton business, it is assumed that the business could only be sold with the individuals continued involvement.

In other words, the goodwill of the business is attached to the individual as a person not the company as an entity. In this case, the goodwill is attached to the husband not the LLP. As the business is solely reliant on an individual, in a real life sale of the business a purchaser of such a professional service business would ensure that any acquisition would be structured such that key fee earners were tied in to enable a continuation of the existing income streams and the transition of personal goodwill to the entity and/or other fee earners.

In this particular case, the judge concluded that in the event of a ‘singleton’ business the key individual could continue to earn a future income from the company however they could also do so without being attached specifically to the company.

Ultimately, it was concluded that no market value can be ascribed to the goodwill in this case as it is not considered that a business exists on a standalone basis. Any future income derived from the business will be a result of the individuals future endeavours and not any separable goodwill or other assets held by the company. The business was valued based on its net assets.

In my opinion, the application of a ‘singleton’ business could become more prevalent leading to issues in relation to business valuation for divorces. CS v SG offers a good example of the significant

effect on company value due to the reliance of a spouse’s ongoing involvement.

In one of the Expert reports the LLP was valued using the earnings-based approach resulting in an Enterprise Value of £2,667,500. To this, surplus working capital was added totalling a Partnership Value of £11.50 million (rounded). The Expert attributed £8.76 million to the husband’s direct interests.

Alternatively, the other Expert identified an Enterprise Value of £13.37 million, after deducting a 2024 shortfall from the initial Enterprise Value of £14.85 million. He identified surplus cash of £8.20 million resulting in a total Partnership Value of £21.50 million. Of this figure the Expert attributed £18.80 million to the husband’s direct interest.

However, the judge concluded a value of the Partnership to be £2.63 million before tax, comprising £2.50 million of distributable profits plus £100,000 relating to the husband’s external investment and £33,000 relating to the capital account.

The figures emphasis the significant impact the idea of a ‘singleton’ business could have on valuations in divorce cases. The judges value of the Partnership is approximately £6.13 million lower than one Expert’s valuation and £18.87 million lower than the other Expert’s valuation.

In conclusion, the valuation of intangibles such as goodwill is highly subjective and the business valuer will seek to understand the commercial arrangements to determine a view on valuation.

Fiona Hotston-Moore FRP Advisory

Hertfordshire Law Society Gazette

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Expert Witness

The importance of a DNA test for Immigration applications In these cases, where the “red flag” is raised, there is a clear requirement for a DNA paternity test. For example, a red flag would be a British child with one British parent who is named on the birth certificate and a non-British mother who is without a visa. Unfortunately, there is no legal requirement in the UK for a DNA test when an application is made for a child’s passport or when registering the birth.

There is a strong case for change.

Dr Neil Sullivan

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n investigation by the BBC in May last year1 revealed that there are UK men who are posing as fathers for migrant women and taking fees of up to £10,000 for falsely adding their names to birth certificates.

This enables the child to become a UK citizen and hence for the mother to gain residency. It appears that despite the rules banning the practice, these “fathers” are advertising on social media and are using elaborate and convincing backstories, which can only get more convoluted with use of AI. Social media posts involve both men advertising themselves as “fake fathers” and women searching for a British “citizenship daddy”.

Falsification of a birth certificate is a criminal offence2 yet the practice continues, with rare examples of prosecutions.3 As evidence of paternity, sufficient checks are required and the technology to do this, via a DNA test, is both readily available and tried and tested.4 Since the Home Office has not published data on the number of visas given to non UK parents of British children, the scale of this fraud is not publicly known.

However, it is the case that if an illegal migrant female gives birth in the UK to a child who has either a) been fathered by a man with indefinite leave to remain or b) is a British citizen, then the child will be British by birth. This does the correct thing of course, it protects the child, but the consequence is that the mother can apply for a family visa and hence citizenship.

The BBC reported that this practice has been going on for many years, including communities from Bangladesh, India, Nigeria, Pakistan, Sri Lanka and Vietnam.

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In the cases of unmarried parents, the responsibility for registering the birth of a child lies with the mother and only the mother has parental responsibility.

If both “parents” are present at the registration, then there is the situation where the fake father or the citizenship daddy will have parental responsibility for the child. Falsification aside, once the visa/citizenship process is complete, the mother may claim “genuine mistake” and via a DNA test, apply to have the fake father or citizenship daddy removed from the birth certificate. Equally, should the biological father appear, he may also apply for an amendment, but this would not give him parental responsibility unless a court order was in place or unless the mother agreed.

A DNA test for paternity either excludes a man from biological parentage with 100% certainty or determines that he is the biological father. The latter, an “inclusion” is usually given as a probability of paternity and will give a statistic in excess of 99.99%, especially if we have been able to test the mother. Of course, paternity DNA tests of this nature should be conducted by an accredited company, such as our own, which is on the Ministry of Justice list as “a body that may carry out parentage tests directed by the civil courts of England and Wales under section 20 of the Family Law Reform Act 1969”.5 By using such a company for these tests, you can be assured that as far as is possible, checks are carried out to establish identity and facts, plus we control the sample collection, via use of one of our registered samplers and adherence to the legal procedure for collecting samples for DNA testing.6 This is important because there is a chain of custody which allows reliance on the DNA testing data.

The BBC investigation into birth certificate manipulation has provided illumination into circumstances which are disconcerting and indeed, helps makes the case for more accredited DNA testing to be used in immigration applications.

About the author: Dr Neil Sullivan, BSc, MBA (DIC), LLM, PhD is General Manager of Complement Genomics Ltd (trading as Dadcheck®gold).

Complement Genomics Ltd (trading as Dadcheck®) is accredited by the Ministry of Justice as a body that may carry out parentage tests directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969.

Please see: https://dadcheckgold.com Tel: 0191 543 6334 e-mail: sales@dadcheckgold.com

Citations UK men offered £10K to pose as dads in visa scam, BBC investigation finds - BBC News 1

https://www.bbc.co.uk/news/uk-65556437 2

Section 4 of the Perjury Act 1911

Mum jailed for lying about the dad of her baby on birth certificate to spite exboyfriend - Wales Online 3

https://www.walesonline.co.uk/news/walesnews/mum-jailed-lying-dad-baby-16932386 4

www.https://dadcheckgold.com

dadcheck® is UKAS accredited testing laboratory No. 2743.

5

Blood Tests (Evidence of Paternity) Regulations 1971 (SI 1971/1861), as amended Blood Tests (Evidence of Paternity) (Amendment) Regulations 2015.

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Advertorial

Deputyship and Statutory Will Applications: How does a probate genealogy firm help?

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s all Deputies and Court of Protection specialists will know, applying for a Statutory Will can be a complicated and time consuming matter. As part of the duty of care, and requirements for making a Statutory Will, it is necessary to hold a copy of the person’s existing Will, a draft of the proposed Will, details of their family, assets and income, as well as medical evidence of their incapacity in order to provide these to the court, together with any other evidence the court requires.

Anyone who would be potentially affected by the application (perhaps a beneficiary who would lose out, for example) will be a party to the court proceedings. Finders International specialises in researching P's next of kin, providing a verified family tree and a full report of the required findings to support your Application to Court.

Here are some of the ways in which a probate genealogist can help: 1. Verifying Family Tree Information: We can conduct thorough research to trace and identify all of P’s next of kin according to intestacy rules. We can do so with little or no contact with the family, at the authority of the Deputy, and ensure that our research is backed by documentary evidence.

The court or the deputy may receive information about P’s family from various sources, including family members. This information can often be inaccurate; therefore, we can verify the accuracy of any information already held, ensuring that the family tree is comprehensive and reliable.

2. Resolving Complex Family Scenarios: In cases where the family structure is complex or unconventional, a probate genealogist can provide expertise in unravelling intricate family scenarios.

This includes stepsiblings, half-siblings, or other unique family relationships. With modern families spread across the globe

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our international expertise can assist in even the most complicated of family make ups, and wherever people may live.

3. Ensuring you are aware of P’s existing Will & financial assets Ensuring you know of any Will P may have made in the past is crucial to this process. Finders can assist by conducting a comprehensive Will Search to identify any Will that may have been made before P’s affairs were managed under Deputyship Order. Additionally, a full missing asset search can also be conducted for P, ensuring that you are aware of the full financial picture.

4. Providing Evidence for the Court: The findings of a probate genealogist can be presented as evidence to the Court of Protection. This documentation helps validate the accuracy of the family tree and ensures the correct family members are notified of the process.

Insights into the research process A question that we are often asked is, ‘How do you do it?’ Many who have researched their own family tree will know that birth, marriage, and death records are essential in confirming findings. At Finders International, we also have in-house databases, local representatives, and a network of international researchers to assist with our research. Each case comes with its challenges, including children born out of wedlock, overseas research and common surnames. Our team work on cases with these elements on a daily basis and carry out research for Court of Protection teams all over the country, so have the experience to overcome these research hurdles.

Case Study At the point of our instruction, the only information held was that P had a deceased partner and one living cousin.

Our research first confirmed that P had no children and was an only child.

Extensive research using all available genealogical resources confirmed that P had no living Paternal family. However, we confirmed that P’s maternal family was larger than expected.

During the course of our research, we identified 6 maternal aunts and uncles who left descendants, identifying a number of living cousins.

As part of our verification process, we obtained birth, marriage and death certificates and identified current addresses for all P’s next of kin. This information was provided to the Deputy in an easily digestible family tree and report, with appropriate supporting documentation.

In this case, at the Deputy’s request, no contact was made with the family before our report was submitted.

Our involvement in this case was key, as we identified three more family members in addition to the cousin previously known. This full picture enabled the Deputy to proceed with the Statutory Will Application and notify all the correct next of kin.

Our expertise in genealogical research ensures a thorough and accurate representation of the P’s family connections, enabling confidence in the information provided to the Court for the purposes of obtaining a Statutory Will.

Finders International can assist predeputyship application if the court requires you to contact family, friends or neighbours of P. We can also assist with Statutory Will Application research, Missing Will and Assets searches, Administrator searches and Unoccupied Property Insurance. If you have a case like the above or have any questions regarding our services, contact us today at quotes@findersinternational.co.uk, call 0800 085 8796 or visit our website www. findersinternational.co.uk.

Hertfordshire Law Society Gazette

Norfolk Law - Advertorial - 31 Education

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