Northamptonshire Law Society Bulletin Issue 21

Northamptonshire Law Society Bulletin www.northamptonshirelawsociety.co.uk Winter/Spring 2019

2019 Awards Dinner

See page 22 for details

Patroned by: QPI legal - Professional Indemnity, tailor-made for Professionals

Clear thinking where it counts

Here today and here tomorrow

Always here for you In tough times, ARAG has shown the strength to protect our business partners and the intelligence to create what their clients need.

Call us on 0117 307 2293

Twitter.com/arag_uk

www.arag.co.uk

Northamptonshire Law Society Bulletin

Published by:

Tel: 0151 651 2776 simon@eastparkcommunications.co.uk www.eastparkcommunications.co.uk Managing Editor Carolyn Coles

Contents

Winter/Spring 2019 Northamptonshire Law Society

EAST PARK COMMUNICATIONS Ltd. Maritime House, Balls Road, Birkenhead, Wirral CH43 5RE

5 The President Writes 6 Constituency Council Member’s Report 8 Asbestos - Still A Danger

Advertising Simon Castell & James Bentley

10 Tollers Remain “The Fastest Law Firm in Northampton”

Key Account Manager Denise Castell

11 An Open Letter To My Colleagues & Superiors

Design East Park Studio

15 A Process To Surviving Data Protection Breaches 17 Observations From The Conveyancing Frontline

Accounts Tony Kay

18 Northampton Sailability - Fun On The Water

Media No. 1111 Published February 2019 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.

22 Northamptonshire Law Society Awards 2019 26 The COLP’s Duties Under The SRA’s New 2019 Regulatory Arrangements 28 What The Inheritance Tax Incentive Means To Charities 28 Expert Witnesses – Impartiality And Balance 32 And Finally…

Titles in blue are supplied by advertisers and are not endorsed by the Northamptonshire Law Society

gildings auctioneers

Personal Property Specialists •

Probate and inheritance tax planning valuations

•

Inheritance planning

•

Identification and valuation of personal property

•

Advice for sale by auction and private treaty

•

Comprehensive house clearance service

A magnificent imperial yellow-ground famille rose floral vase, Yuhuchunping.

Qianlong four-character seal mark (1736-1795)

Identified for a local client and sold successfully for £338,500

Telephone : 01858 410414 | Email: sales@gildings.co.uk | www.gildings.co.uk Gildings Auctioneers, The Mill, Great Bowden Road, Market Harborough LE16 7DE

 GILDINGS.CO.UK

www.northamptonshirelawsociety.co.uk

3

Exceptional Insurance from your local advisors

BUSINESS INSURANCE • PRESTIGE HOME & CONTENTS

Cotters Insurance Brokers have developed exclusive insurance products with some of the world’s largest insurance providers.

As an independent broker we have access to a wide range of insurers and specialist schemes.

For more information call us today on

01604 666777 Park House, Sandy Way, Grange Park, Northampton NN4 5EJ Email: insurance@cotters.co.uk

www.cotters.co.uk Cotters Insurance Brokers is a trading style of Cotters Insurance Services Limited.

Cotters Insurance Services Limited, Registered in England No. 3307999 Authorised and Regulated by the Financial Conduct Authority

Northamptonshire Law Society Officers & Council Members 2019 Oliver Spicer

Immediate-Past President Ika Castka

Honorary Secretary Ruth Taylor

Honorary Treasurer Lisa Garley Evans

Constituency Member & Past President Linda Lee

Council Members:-

Welcome to the Spring edition of the bulletin

And a belated happy new year to all members of the Northamptonshire Law Society!

This year marks 140 years since the founding of the Society.

Independent of the Law Society of England & Wales, the NLS was set-up to represent the interests of its members, serving the public in the county and further afield.

This edition serves to demonstrate our fundamental values as a community based focal point for Solicitors. Already our members are showcasing their scope in 2019. So far this year members of the local legal community have attended charity fund raisers, award ceremonies and a number of events across the county in support of numerous good causes and in recognition of the work our members.

David Browne

The Northamptonshire Law Society Awards

Sharine Burgess

On 1st March, the Northamptonshire Law Society Awards were held at The Marriott Hotel in Northampton.

Laura Carter Caroline McGann – Past President Jabeer Miah Michael Orton Jones Karen Shakespeare Euan Temple – Past President

Co-opted Members: Afua Akom Aimee Johns Amy Leech Lynsey Ward

Society Manager Carolyn Coles

Northamptonshire Law Society The Gatehouse, Stable Lane Pitsford

Northampton NN6 9NG

Tel: 01604 881154 Email: Sec.nls@outlook.com All Council members should in the first instance be contacted through the Society Manager.

Northamptonshire Law Society

President

The President writes...

A huge congratulations to all of the winners at this year’s NLS awards!

Numerous firms and individual members received well-deserved awards and appreciation in recognition of their fantastic contributions to the field and to the local community.

A fun evening was had by all and Tom Cunliffe proved to be a great addition to the evening, providing some thought-provoking insights and numerous laughs.

RO-kart 2019

On 5th February, members of the legal community participated in ‘RO-Kart’.

Organized by the Nene Valley Rotary Club, RO-kart is an annual charity event that sees local businesses pitted against one another at the indoor karting centre in Northampton. It is all in the name of charity and friendly, honestly.

The money raised this year been used to support two local charities; Ups n Downs, a charity based in Kettering providing support to children with Downs Syndrome in South Northamptonshire and the Tulip Group, which is provided by the local Parkinson’s branch giving support to individuals with advanced stages of Parkinson’s Disease.

Read on for the race report and results!

Mental Health

The 7th of February, was a ‘time to talk’ day.

Mental health issues affect a quarter of the population. It is a seriously big problem in society and particularly in our industry. However, the issues still seem to go un-noticed or worse, are ignored.

You will find an anonymously submitted article in this bulletin that illustrates how it feels to suffer with mental health issues. I would urge our members to reflect on the article, their experiences and be mindful to help anyone in need.

I will leave you for now. I hope that this year will continue to bustle with activity for you all I look forward to seeing what 2019 brings for the Law Society and its members.

As ever, if you have any articles and / or suggestions for the bulletin, please send them on to council for consideration. Get Involved!

Oliver Spicer

President Northamptonshire Law Society www.northamptonshirelawsociety.co.uk

5

Northamptonshire Law Society

Constituency Council Member’s Report March 2019 REPORTING CONCERNS: In September 2018, the Solicitors Regulation Authority (SRA) published a consultation reviewing the way in which Compliance Officers report concerns to the regulator , offering four options for a new test. After analysing the responses in January 2019, the SRA applied to the Legal Services Board (LSB) to put new rules into effect. It was somewhat surprising that the new rules will not be based on any of the options consulted on but less surprising that the new rules could cause serious practical difficulty for compliance officers and for individual solicitors.

Background Since the introduction of the first version of the Code of Conduct in 2011 (Version 21 of the Handbook was published on 6 December 2018), Compliance Officers have been required to report ‘material’ breaches immediately. ‘Non-material’ breaches have to be recorded and reported at a suitable point . It was made clear to the SRA by the profession when the Code was first considering how to put Outcome Focussed Regulation into effect that this would lead to varying standards of reporting by Compliance Officers and a legitimate concern that their judgment would then be second guessed by the regulator if any problems then arose.

Guidance from the SRA was requested and various patchy attempts have been made over the past 8 years to provide this, always with the promise of more detailed guidance to follow. The test to be applied for determining if a breach was material was set out in the Authorisation rules – ‘a failure may be material either taken on its own or as part of a pattern of failures so to comply’.

This was further developed in January and April 2014 that whether a failure is “material” must take account of various factors such as: detriment or risk of detriment, to clients; extent of any risk of loss of confidence in the firm or in the provision of legal services; scale of the issue; overall impact on firm, clients and third parties . Three case studies were provided with the promise of more to follow but very little follow up actually materialised.

Individual solicitors who reported concerns to a compliance officer were protected if they reported matters to their firm’s compliance officer on the understanding, they would make a report. However, research showed an increasing disconnect between solicitors not involved in compliance (particularly in large firms) and an understanding of their individual professional obligations under the Code itself. Professor Joan Loughrey, author of the first academic study of compliance officers for legal practice (COLPs), noted that COLPs reported solicitors lining up to ask questions and believing that this absolved them from any responsibility. The Handbook and its interpretation had become so complex that the SRA itself appears to recognise that compliance officers have the necessary regulatory expertise to determine when a report should be made, whereas other solicitors may not.

SRA new test for reporting concerns: In the Consultation on ‘Reporting Concerns’ the stated intention of the SRA was to provide greater clarity and ‘avoid the reporting of mere allegations or suspicions’. However, as stated above,

6

www.northamptonshirelawsociety.co.uk

in its application to the Legal Services Board (LSB) the SRA decided not to take any one of the four options presented in its consultation but instead applied for a combination of its options and an additional paragraph.

The new test will be: “You must promptly report to the SRA, or another approved regulator, as appropriate, any facts or matters that you reasonably believe are capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you).”

“Notwithstanding, you must promptly inform the SRA of any facts or matters that you reasonably believe should be brought to its attention in order that it may investigate whether a serious breach of its regulatory arrangements has occurred or otherwise exercise its regulatory powers.”

Difficulties with the new reporting requirement: The relationship between these two sections is unclear and will undoubtedly cause confusion.

The new additional paragraph is uncertain in its meaning and purpose but on any basis appears to impose a wide and undefined additional reporting obligation. As well as having an obligation to report any facts or matters that “you reasonably believe are capable of amounting to a serious breach”, there is an extended obligation to bring facts or matters that “you reasonably believe should be brought to the attention of the regulator.” The scope and intention behind the added paragraph have not been explained.

The consultation and the response shed no light on the intention behind the proposal.

Without clear guidance from SRA, this new test seems unnecessarily onerous and likely to create uncertainty and may induce compliance officers to gather information and report matters which could be regarded as ‘mere suspicions’ to protect their position. This is contrary to the policy for reducing the red tape burden of regulation following an earlier decision to end reporting requirements for non-material breaches under the 2011 Code.

The threshold for reporting appears now to be rendered unduly complicated as a multi -stage process is needed by a compliance officer to determine: 1. What would amount to a serious breach?

2. Is any fact or matter a serious breach?

3. Is any fact or matter “capable” of amounting to a serious breach?

4. If it is not a serious breach is it something that the compliance officer should inform the regulator of?

5. 1-4 have then to be combined with an assessment of whether the SRA would consider the assessment of the compliance officer to be reasonable.

This measure creates a new burden with a parallel obligation to give the SRA oversight of regulated firms and the solicitors employed in them. This is at odds with established governance under entity regulation. Further, defensive reporting of facts or matters undermines the governance within firms and may cause harm and unfairness to anyone who is the subject of any complaint or investigation.

The move from the terms, ‘material’ and ‘non-material’ breach to a new term ‘serious breach’, will require guidance from the SRA. Ideally, the SRA should assist the profession with a definition of what constitutes a “serious breach” and incorporate this in the Codes. This would provide certainty and assist in compliance with the rules. Without clarity, there is a risk of confusion within the profession and this could translate into reduced public confidence where decisions are, or appear to be, inconsistent as will inevitably be the case.

“...Individual solicitors who reported concerns to a compliance officer were protected if they reported matters to their firm’s compliance officer on the understanding, they would make a report...”

The SRA then go on to suggest that further assistance and guidance can be gleaned from studying the recently published Enforcement Strategy document published on 7 February 2019.

This document refers to Topic Guides summarising the main factors the SRA will consider internally when looking at potential breaches in areas where there is the potential for uncertainty.

However, it is not clear whether these Topic Guides are complete or if there are more in development. In any event, having to search through these documents will deliver additional complexity for a busy practitioner trying to understand their obligations. Members should be able to understand their obligations from the rules themselves rather than searching in a policy document within part of the SRA’s website. Members will not readily think to consult ‘enforcement’ policies when assessing their obligations nor will they realise the need for monitoring of the enforcement guides in case of further change.

It appears that the enforcement policy is still in development and reliance on this policy in determining how to assess retrospectively the actions of the compliance officer could damage the smooth and efficient delivery of legal services. It runs counter to the declared SRA policy of reducing the burden of regulation.

Northamptonshire Law Society

Compliance officers will need guidance as to how they can convey to members of their firm (lacking the necessary expertise in regulatory matters) as to what matters should be drawn to their attention. The Compliance officers have a duty to ensure compliance by others in the firm, without themselves being over burdened by unnecessary reports.

Further, the SRA’s Enforcement Strategy under the heading “Who should report ”, states: “If you are an individual solicitor, or registered European or foreign lawyer, any obligation to make a report to us will be satisfied if you provide the information to your firm’s compliance officer (as appropriate), on the understanding that they will do so. This avoids multiple or duplicate reports being made and allows compliance officers to use their expertise to make professional judgments in light of the facts (and following investigation, where appropriate). We would not require or expect the individual to check whether a report has subsequently been made, in those circumstances. However, if you believe a report should be made under our standards or requirements, you should be prepared to make a report yourself if you are not satisfied that they will take the same view.”

The final sentence appears to contradict what is set out in new Code where reporting to a compliance officer would discharge any obligation or liability on the reporter to further report to the SRA. Guidance is needed to make it clear in what circumstances an individual who does not have regulatory expertise, has in all good faith made a report to their compliance officer, then has to make a direct report to the SRA , particularly if there is no obligation on them to check if that report has indeed been made.

Action taken: I have prepared a letter with Michael Garson, Chair of Professional Standards and Ethics Committee to the SRA setting out the difficulties arising from the new test and urging the SRA to rethink or at the very least offer clear and comprehensive guidance. By the time of publication, the letter should have been sent to the SRA by the Law Society and I will keep you updated of any response.

Legal Aid In the next edition, I will set out a review and analysis of the planned changes to Legal Aid following the but those of you who cannot wait that long, the full report, ‘Legal Support: The Way Ahead-An action plan to deliver better support to people experiencing legal problems’ is published here . There is some additional funding and whilst it is a nod that the LASPO reforms went too far, there is much to be done and the fight continues!

If you have any concerns or queries or would like to discuss any of the issues raised or any other matter, I am always very happy to hear from you.

Linda Lee

Linda Lee has been Council Member for Leicestershire, Northamptonshire and Rutland since 2003. She is a past President of the Law Society of England and Wales and is the current Chair of the Regulatory Processes Committee and a member of the Policy and Regulatory Affairs Committee and Access to Justice Committee. She is current Chair of the Solicitors Assistance Scheme. Linda is an experienced litigation solicitor and is a Consultant at RadcliffesleBrasseur where she specialises in solicitors’ disciplinary, compliance and regulatory work.

She can be contacted by email at: lindakhlee@aol.com www.northamptonshirelawsociety.co.uk

7

ASBESTOS

Northamptonshire Law Society

Still a Danger

Article from Sharine Burgess

Around 2,600 people are diagnosed with mesothelioma in the UK each year and the number of cases is not decreasing as many might expect, given that the obvious ‘risky heavy industries’ where exposure to asbestos was commonplace have declined.

Mesothelioma is a malignant tumour of the mesothelium, the thin membrane that surrounds various organs in the body. Some cases of mesothelioma affect the peritoneum (the outer lining of the abdomen) and the heart (pericardium).

mechanisms try to break these fibres down but, as they are mineral-based, they never dissolve and the lungs have difficulty expelling them. Trapped asbestos fibres can cause inflammation and scarring in the lung tissue.

This cancer is incurable although medical advances are being made all the time and the results of new treatments such as immunotherapy are not yet known.

People who handled, used or came into contact with asbestos during their daily work could include construction workers, boilermakers and shipbuilders.

The majority (3 in 4) of cases develop in the pleura (the delicate lining of the lungs) which are normally lubricated by fluid and slide over each other as you breathe.

These jobs were mostly done by men (mesothelioma is five times more common in men than in women) but family members of men who worked with asbestos and brought the dust home on their work clothes could also develop mesothelioma. There have been a number of cases of ‘secondary exposure’ among women who washed their husband’s contaminated work overalls and cases where fathers hugged their children when returning from work still in their work clothes.

It can take anything from 10 to 60 years for symptoms of mesothelioma to emerge, although the average time for symptoms to become apparent is usually about 20-30 years after exposure to asbestos. By that time it is too late for anything other than palliative treatment, although advances in diagnosis and treatment are being made all the time.

That lengthy latency period for symptoms of the disease also means that many sufferers assume their health issues are simply down to ‘old age’ and don’t make the connection between their illness and whatever work they may have done decades ago.

The disease may develop in those who have been in contact with or inhaled asbestos fibres or dust or worked with asbestos without using adequate face masks or other protective equipment or clothing. Blue asbestos (crocidolite), brown asbestos (amosite) and white asbestos (chrysotile) can all cause mesothelioma.

“...Those who lived near an asbestos factory or worked in an office, school or any building containing asbestos material that was disturbed or damaged could be at risk....”

Asbestos was commonly used as a building material in many UK industries and imports of blue and brown asbestos were not halted until 1985. It was only as recently as 1999 that the use of white asbestos in any industrial or domestic application was finally banned.

When asbestos is disturbed or damaged, it releases very fine mineral fibres that can be easily inhaled, penetrating into the smallest crevices of the lung. The body’s natural defence 8

www.northamptonshirelawsociety.co.uk

Those who lived near an asbestos factory or worked in an office, school or any building containing asbestos material that was disturbed or damaged could be at risk. As asbestos remains in so many public buildings, there is also concern for joiners, plasterers, plumbers and electricians who may inadvertently come into contact with the hazardous substance.

Compensation is available to sufferers and their families in some circumstances. Compensation can help alleviate the suffering any mesothelioma victim may face by funding treatments or providing specialist equipment to help make life a little easier. It can also provide financial support to bereaved families. Claims can be brought against employers who negligently exposed workers to asbestos even if that company is no longer in business. As a general rule claims should be brought within 3 years of the victims’ knowledge that he/she is suffering from an illness caused by asbestos exposure. This is often the date of diagnosis, but not in all cases. It does not mean three years from the time of the asbestos exposure.

Practitioners should be aware of the dangers of asbestos which are unfortunately are still present and relevant today so that victims and their families can be supported and given appropriate legal advice if they may be entitled to make a claim for compensation.

Sharine deals with a wide range of cases including stress and accidents at work, military claims and industrial disease and illness claims.

You can contact Sharine on 03700 863423 or sharine.burgess@accesslegalsolicitors.co.uk

Think of all the things your firm depends on that rely on the Internet...

(Scary isn’t it...)

Don’t let a slow or unreliable Internet connection keep your business in the dark...

300Mbps to 10Gbps.

Case closed.

www.exa.is/legal

Northamptonshire Law Society

Tollers Remain

by Neil Hufton

“The Fastest Law Firm in Northampton” At the Northampton Law Society/Nene Valley Rotary Club Rokart heat this month Tollers retained the trophy and title they won last year as “The Fastest Law Firm in Northampton”

In a very competitive race they narrowly beat Shoosmiths 1 by only 10 seconds over a 2 hour race completing 246 laps of the Teamworks Indoor track at St James. One lap behind were Hawsons and Shoosmiths 4. The cup was presented

by Northampton Law Society President Oliver Spicer who commented that “Shoosmiths would be back next year!”

Once again the level of performance of all the teams has improved compared to previous years. Tollers completed 246 laps compared to 236, DFA Law 240 compared to 205and all the Shoosmiths teams completed 15-20 laps more.

The real winners however were the two charities Ups n downs (who support families in Northamptonshire who have children with Downs Syndrome) and the local branch of the Parkinsons society. The evening raised £1300 towards the Rokart target of £10000. The value of the money raised could be summed by one mother who said “we cannot make life fair for our children but we can make it joyful !”

As one team member said “its difficult to imagine a more fun way to raise money for charity “

The only disappointment is that Tollers will not be able to go forward to the Grand Final in April as the heat was won by an outsider Deltic Group who were racing because all the places in this years heat were not taken up by Northampton Law Society teams. We hope to have 10 teams in Rokart 2020 Rokart is organised by Nene Valley Rotary Club and over the 4 years the event has raised £40000 for local charities.

RoKart Challenge 2019 Heat 3 (Law Society Night) 5 February 2019 Team #

10

Team Name

Number in team

Laps completed

Final Position

Fastest lap

1

Tollers

5

246

2

25.11 sec

2

Shoosmiths 1

5

246

3

25.33 sec

3

Shoosmiths 4

5

245

4

25.24 sec

4

Hawsons

5

241

5

25.09 sec

5

DFA Law

4

240

6

25.46 sec

6

Shoosmiths 3

5

237

7

25.73 sec

7

Shoosmiths 2

4

235

8

26.01 sec

8

Borneo Martell Turner Coulson

5

225

10

26.25 sec

1

The race was a 2 hour endurance race

2

Each lap is 400 metres

3

At least 9 changes of driver were required.

www.northamptonshirelawsociety.co.uk

I suffer from occasional Migraines. Sometimes I shut my eyes, dig deep and soldier through it because I feel weak and embarrassed. I fear that people won’t believe the severity of my symptoms. Other times I shut myself in the toilet cubicle and wait for the blinding pain to pass.

Because I overhear your conversations, about other employees, when I’m at work;

Actually that’s not true.

‘’What has he/she got to be worried about?!’’

I suffer from occasional panic attacks, frequent anxiety and sporadic spells of depression. Sometimes I shut my eyes, dig deep and soldier through it because I feel weak and embarrassed.

I fear that people won’t believe the severity of my symptoms. Other times I shut myself in the toilet cubicle and wait for the blinding pain to pass.

I witness the eye-rolling. And the declining opinions of said employees worth, reliability and capabilities.

I blame it on Migraines. That is true.

But you don’t know this. I choose not to tell you. I don’t even tell HR. Because I fear that my struggles with mental health will impact my future prospects with the firm.

I am great at what I do. But I fear that my skills and experience will pale into insignificance if I take some time off for depression. That people will side-step me in the corridor and avoid talking to me.

‘’He’s signed off with stress again.’’ ‘’She’s depressed apparently.’’

You don’t understand it and that really is ok. I don’t really understand the aetiology of arthritis. Or what if feels like to have an asthma attack.

But I implore you to not undermine the severity of the mental health conditions you do not understand. Your judgment and lack of compassion makes those conditions worse.

Please do not look down on those who are brave enough to admit they require time off to work through a mental health problem.

Please admire their drive for self-improvement. Please encourage your colleagues and staff to not hide.

And don’t eye-roll. It’s plain rude.

YOUR NEW GO-TO THE place for Commercial Legal Indemnity Insurance Where cover is instant and fully comprehensive

CTIS – the place to go for cover you can trust Visit us today at ctis-title.co.uk/SE

www.ctis-title.co.uk

t: 01435 868855 e: underwriters@ctis-title.co.uk

CTIS is a trading name of GCS Ltd. GCS Ltd is authorised and regulated by the Financial Conduct Authority. Registered in England and Wales No. 3623950

CTIS Advert Design - Dec 18_03.indd 1

www.northamptonshirelawsociety.co.uk 21/12/2018

11 11:43

Northamptonshire Law Society

An Open Letter To My Colleagues & Superiors

Northamptonshire Law Society

PROPERTY INFORMATION

A different kind of search provider

Our clients tell us that we truly understand their challenges and needs, that’s because we have local offices run by local people using local knowledge and expertise to provide the level of service that other providers simply cannot.

Our approach is practical and straight forward in that we agree more local knowledge leads to improved levels ofservice. This is enforced by an example of our recruitment policy so that our reports are proof read by an ex head of conveyancing with over thirty years’ experience. Believe us when we say we know what makes the difference.

Index East Central Unit 9 The Metro Centre Welbeck Way Peterborough, PE2 7UH

T: 01733 368600 E: eastcentral@indexpi.co.uk

12

www.northamptonshirelawsociety.co.uk

www.indexpi.co.uk

Northamptonshire Law Society

“NO BOMBS ON MY WATCH” From disarming underwater bombs to leading a property search company, Paul Moyses’ career trajectory is certainly an unconventional one.

The ex-Royal Navy clearance diver now heads up a team of 24 people at Index Property Information in Peterborough, handling search queries from legal practices throughout Leicestershire, Cambridgeshire, Lincolnshire, Northamptonshire and North Norfolk.

“We as a team and I personally invest a lot of time in making sure our clients are happy,” says Paul.

So how do underwater engineering and bomb disposal to a depth of 200ft prepare you for the world of local authority and planning searches?

The Index East Central team works with around 70 clients who have roughly 200 offices between them. It’s a competitive region, and the company has built up an enviable reputation for quality, diligence and quick turnaround.

“Attention to detail is crucial in both cases,” says Paul, “although, admittedly, not life-threatening in my current career.

But as far as our clients are concerned, we can’t afford to go wrong.

“Clients don’t contract with us– they are always free to go elsewhere – so it’s a measure of our success that once they start working with us, they stay with us for their search requirements.”

“My team first started using Index for our searches nearly 5 years ago,” says Tim Middleton, head of residential property at Hewitsons LLP.

“For our clients, the outcome of our searches can make or break a transaction, so it’s really important that we get it right.

They need to be able to put their trust in us and rely on us to ask the right questions.

“We have never been tempted to use anyone else, despite constant approaches from competitors, and now the whole firm uses them.

They are easy to use, pro-active, cost effective and extremely flexible. What else can you ask for in a service provider?”

“I think it’s fair to say that we go further than any of our competitors to make sure our clients get the information they need, when they need it.”

The local expert with nationwide resources

Wide skill-set As well as a boss with an unconventional back story, Index East Central boasts a professional team with a wide range of skills learned from previous jobs.

“We hire people who have experience in the industry and a talent for getting to the bottom of things,” says Paul, who has been in the search industry for 18 years.

“For example, one of our team is an ex-policeman who vets all the search data to make sure nothing is missed out. We have former legal secretaries and ex-solicitors who look at the results from a client’s point of view, and have employed a water company account manager and a Groundsure CPD trainer.

“Nothing is left to chance – that’s one imperative I’ve carried over from my Navy career.”

All Index employees undergo rigorous training and are skilled in spotting errors. They don’t accept searches at face value but drill down into the data to make sure everything is correct.

“Our reports are proofread by a team with more than 30 years conveyancing experience (generally greater than customers we serve), so our clients can rest assured that all bases have been covered,” adds Paul. “That’s particularly important when you are working to strict deadlines.”

It’s personal The Index team knows that business relationships rest on personal connections, and how they interact with clients and the attention to detail they provide is what makes the business stand out from the competition.

Index is the fastest-growing search provider in the UK, operating on a national basis but with regional businesses headed up by local experts.

This means that the company is able to offer a truly local service, with access to national resources and a sophisticated ordering system for residential, commercial and agricultural searches, including direct SDLT submissions.

Index Property Information is one of a handful of search providers to partner with the National Land Information Service (NLIS), the only regulated data hub in the UK land and property information market.

The Index IT system can integrate with most case management software providers, simplifying time management. In addition, Index Insure delivers intuitive and easy to use online ordering and quoting for a comprehensive suite of over 150 legal indemnity policies.

Clients can also take advantage of an extensive programme of free online webinars covering a wide range of subjects designed to keep solicitors up to date and meet their continuing competence requirements.

“It’s the best of both worlds,” says Paul Moyses.

“Our clients know they can rely on this national resource, but the real key to our success is the personal relationships we build with individuals.”

To find out more about Index Property Information, contact paulmoyses@indexpi.co.uk or call 01733 368600. www.northamptonshirelawsociety.co.uk

13

Stamp Duty Land Tax Are you sure you’re getting it right?

Northamptonshire Law Society

The Stamp Duty Land Tax (SDLT) landscape has changed exponentially over the last five years and our experience has shown that many conveyancing firms have not kept up to date with these changes resulting in both substantial overpayments and underpayments of SDLT by their clients.

This creates two main problems: 1.

The legal consumers are left open to tax demands from HMRC for their underpayments together with substantial penalties and interest which arises from a lack of reasonable care in dealing with their tax affairs. The conveyancer is left open to litigation from their clients for those underpayments.

Advising clients in a customer care letter that the firm “does not provide tax advice” may have been acceptable five years ago when the SDLT 1 was no more than an administrative exercise undertaken by a secretary, but this will not cut it in 2019 and beyond-there needs to be a transformation. If conveyancing firms do nothing else this year they should:

2.

The conveyancers are having to foot the bill for the additional professional time taken to recover overpayments that need not have been made in the first place, and on occasion are having to claim on their PI policy as some overpayments are out of time for recovery from HMRC.

(a) not be embarrassed to ask for help on SDLT matters

There appears to be a general lack of understanding in the profession on mixed use status, multiple dwellings relief, the 3% additional rate for second homes and the 15% rate that applies to the purchase of certain dwellings by a company. This lack of understanding can be compounded by a conveyancer’s obligations to meet the conditions detailed in paragraph 10 of the UK Finance Mortgage Lenders’ Handbook which obliges the conveyancer to fund the SDLT liability themselves in certain circumstances.

This can lead to SDLT liabilities being overestimated as a selfpreservation measure.

(b) ensure the client understands that SDLT has become very

complex and is not included in the conveyancing quote but

that you want to ensure they pay the correct amount (c) appoint an individual in the firm to be the go to person on

SDLT matters (d) ensure the individual is at least up to date with the four areas

of SDLT mentioned above (e) ensure that the individual is authorised to subcontract

complex SDLT matters to a qualified and experienced tax

professional outside the firm (f) subcontract the more complex SDLT matters to a tax

professional outside the firm (g) sit back and relax

WHY IS STAMP DUTY LAW SO CONFUSING?

and could your clients be due a refund?

Stamp Duty Land Tax is commonly known as Stamp Duty or SDLT and was introduced in 2003. It was initially a relatively straight forward duty to calculate, administer and collect until Parliament started to make changes to it.

T

he first significant change was in December 2014 and a subsequent change came into effect in April 2016 when the 3% surcharge on the purchase of second homes and buy-to-let investments was introduced. These changes have created uncertainty and complexity when calculating the duty due and so overpayments arise. Overpayments can be recovered from HM Revenue & Customs (“HMRC”) provided a claim is submitted within the required time frame which is generally 13 months after the purchase date.

What if one house has an annexe, or detached property in the grounds?

There are complex rules surrounding the purchase of properties that include an annexe, basement flat, or other residential property in the grounds such as a detached holiday cottage, an apartment above a garage or even staff accommodation. Therefore, mistakes with the calculation are made and opportunities to claim statutory reliefs and allowances are overlooked. Take the following example:

Mr & Mrs Davies purchased a 3-bedroom house in June 2017 for £675,000. Attached to the house was a garage; the upper floor of which had been converted into a bedsit. The bedsit was not occupied on the purchase date but was suitable for use as self contained living accommodation. The couple did not own any other residential property and were advised to pay Stamp Duty of £23,750 on their purchase. We subsequently reviewed the purchase for them and confrmed the Stamp Duty charge should have been £13,750.

Statutory reliefs and allowances were overlooked, and we were able to help the couple claim a £10,000 refund from HMRC. We are more than happy to have a conversation with those that fear their clients have overpaid and want our help to assist with claiming a refund on their behalf. If you also have clients that are about to embark on a similar purchase please get in touch so we can ensure you advise your clients to pay the right amount of Stamp Duty. Not too much and not too little.

Stephen Griffiths, Griffiths Allen Stamp Duty Advisers office@griffithsallen.co.uk 14

www.northamptonshirelawsociety.co.uk

Northamptonshire Law Society

A Process To Surviving Data Protection Breaches

by Euan Temple

Any day during which you find out that you’ve been breached will be bad. But do you know what would be worse? Realising three days later that you’ve missed the deadline for reporting the incident to the Information Commissioner’s Office (ICO).

Under the GDPR (General Data Protection Regulation), organisations have 72 hours from the moment they become aware of a breach to report the incident. You can do this either by email or telephone, but it’s not as simple as saying “we’ve been breached”. You must provide a long list of details about the incident, including the extent of the damage and the steps you’ve taken to recover.

You also need to work out whether you’re even required to report the incident. The ICO only needs to be notified if there is a risk to the rights and freedoms of those affected.

Failure to disclose is punishable under the GDPR’s second tier of penalties, with fines up to €10 million (about £8.7 million) or 2% of the organisation’s annual global turnover, whichever is greater.

The requirement is not, as some have complained, petty bureaucracy. Disclosing a breach promptly can save organisations a significant amount of money and enable those affected to secure compromised accounts. A strong breach recovery process can also protect, or even enhance, an organisation’s reputation and reduce the likelihood of customers turning to competitors.

So, when you’re in the middle of that bad day when you learn about a data breach, don’t spend too long being upset, because there’s a lot of work to do.

You can manage those tasks effectively by following this process for reporting breaches.

Situational analysis You must explain: The initial damage; and how the breach has affected your organisation; What caused the breach; how you found out about it; and when you found out about it.

Assess the affected data You must provide details of: The types of personal data compromised; and the number of personal data records affected; The number of data subjects potentially affected; and the categories of data subject affected.

Describe the impact You must detail: The damage that the breach Euan Temple - Council has caused, particularly regarding Member & Past President material harm to data subjects; and the damage that might occur in the future; In the event of cyber incidents, you must also state: Whether the confidentiality, integrity and/or availability of your information systems been affected (and if so, how); and the estimated recovery time.

Report on staff training and awareness If the breach was a result of human error, you must: State whether the employee(s) in question received data protection training in the past two years; and provide details of your staff awareness training programme.

State preventive measures and action You must: Describe the actions you have taken, or plan to take, in response to the breach; State whether you need to inform data subjects of the breach, and if you do, whether you’ve already done so; and state whether you’ve told, or intend to tell, any other organisations (such as clients or suppliers) about the breach.

Oversight You must provide: The name of your organisation; and your registered address; The name of the person making your report; and The name of your DPO (data protection officer) or person responsible for data protection.

www.northamptonshirelawsociety.co.uk

15

Northamptonshire Law Society

Is Your Legal Software Ready to Remain Compliant in 2019?

The legal software market is amidst a period of change and consolidation.

Previously, most Law Technology suppliers tended to be owner-managed businesses. However, today’s landscape is very different, with a good number being bought up by larger Venture Capitalist-backed businesses looking to consolidate the market and drive product development with greater access to new technology. This focus on a dramatically reduced number of ‘go-forward’ products has created inevitable threats to existing solutions in use across many firms.

While older products may be supported by suppliers in the short term, many won’t receive the active development needed to keep pace with industry changes and could be ‘end-of-lifed’ in the future. Users therefore risk either not being totally compliant or will have to employ workarounds to make them both function and comply.

Making Tax Digital More change is fast-approaching and increasing the pressure on firms to digitise

16

www.northamptonshirelawsociety.co.uk

to meet regulations. For example, HMRC’s Making Tax Digital (MTD) initiative launches on 1st April 2019 and is set to make fundamental changes to the tax system.

MTD will require firms to record and report their VAT transactions digitally. Firms must therefore have suitable software in place that can record all VAT transactions and submit the data to HMRC via a new Application Programming Interface.

With paper only records no longer acceptable, solutions must be both capable of recording all transactions digitally and communicating directly with HMRC’s systems. Firms should therefore check the status of their systems, ensuring they have the controls to maintain an efficient and compliant operation.

Staying compliant The investment from software suppliers in ‘go-forward’ products could result in the products already in use by firms no longer being supported and in many cases, ‘end of lifed’ or ‘sunsetted’. Those that don’t ask questions of their providers therefore risk breaching legislation or incurring higher fees.

For example, a firm’s existing supplier could request that they change to an alternative system, which could come at a large expense to the business. Alternatively, keeping the existing system could mean that they simply won’t be compliant from the moment any new legislation takes effect, or are forced into buying expensive

“add on” products which have a limited life span and are cumbersome to implement and use.

The process of implementing and migrating data to another software system could also be overlooked. Data migration takes considerable time and resources to make sure it’s done right. Leaving this close to regulatory deadlines or incomplete before systems cease could force firms to accept high renewal or migration fees, or even a lengthy agreement on a solution they aren’t fully satisfied with.

Taking active precautions, such as asking suppliers about the state of existing software or seeking advice from legal IT experts will help firm managers to make early decisions about the best course of action when faced with potentially outdated or non-compliant products. Taking these steps now could help firms to reap the benefits of providers which offer fast migration with full support and expertise, giving their practice maximum compliance and longevity and allowing them to thrive in an increasingly digital sector.

Tim Smith, Technical Director at Insight Legal Software Ltd To discuss this topic further or the services we can offer, please give us a call on 01252 518939, email us at info@insightlegal.co.uk or visit our website; www.insightlegal.co.uk

Northamptonshire Law Society

Observations from the Conveyancing Frontline

Article from Tony Rollason, Regional Manager Legal, Landmark Information Group

For me, I really enjoy getting involved with industry events to hear first-hand what the latest issues are for property solicitors and conveyancers. Landmark Information recently hosted a roundtable that brought together a group of property law experts to discuss both the opportunities and issues facing the property conveyancing process in 2019.

I was certainly interested in hearing the issues that emerged, which were mostly centred on three key themes; customer experience, service transparency and tech in conveyancing.

1. Customer Expectations There was agreement around the table that client expectations have changed considerably over recent years, which are creating additional pressures on property lawyers when handling a property transaction.

It was felt that the Internet, smartphones and email have all led to a change of consumer expectations. People have become accustomed to instant gratification in many walks of life; for example, if you have a question about almost anything, Google will be able to serve you an answer in just a matter of seconds.

If you’re looking to buy a product, Amazon will allow you to do so in a few clicks and receive the item the very next day.

It was felt by the lawyers at the roundtable that people are now expecting a similar experience when buying or selling a home.

They want answers immediately and the increase in emails and chasers calls both in and out of working hours are up.

Consumers are expecting a more modernised service where they can see the progress of their transaction online, or the answers to questions returned as promptly as a Google response.

For those around the table, they were concerned that consumers don’t necessarily understand the complexities involved in the legal process when it comes to buying a property – and of course why would or should they – so a great deal of education is needed to ensure consumers are aware of the process, the intricacies involved, and the realistic timescales at the outset, to ensure they are satisfied with the service being provided.

2. Referral Fee Disclosure

At the end of last year, new pricing transparency requirements came into play from the SRA which means that firms providing property conveyancing must publish user friendly price and service information on their websites that members of public can access.

The aim behind this is to help consumers not only understand the cost and details of the service being provided, but to help them make better informed decisions when selecting a legal services provider.

At the roundtable, the jury was out as to the impact of the rules due to the infancy of them, yet the general feeling was that it will help consumers understand more about what is involved in a transaction, by seeing itemised information. There were however concerns that consumers would use the pricing as a bartering tool against other firms, which could drive prices down in a market that is already struggling with maintaining healthy margins.

Off the back of this discussion, it led to the topic of estate agent referral fees and a general unease of those in the room around payment of referral fees to agents. The lawyers in the room questioned the ethics around this practice and raised a query of the transparency of such fees. They felt that as conveyancers must publish pricing information up front, then is it also right that the public should be made aware of related fees, such as these?

In fact, in a YouGov survey commissioned by the Council of Licenced Conveyancers in October 2018, reported that 59% of respondents who took a recommendation were not aware whether the estate agent was paid a referral fee for this.

It was quite clear from the people in the room that this is an area that needs to be looked into further.

3. Technology Adoption The final big talking point from the roundtable concentrated on technology and what role it is playing both now and in the future to create efficiencies in the process.

An area of agreement centred on the ‘joining up’ of all parties involved in the process; cross-industry collaboration is considered key to overcoming various ‘pinch points’ to help reduce the time it takes, while also removing duplication of effort for all involved.

It was also agreed that case management solutions and online search ordering platforms are supporting lawyers in having greater visibility of every transaction, which is helping. Likewise, they are helping to automatically populate information on forms or remove some of the previously manual tasks, meaning fee earners have more time to spend on the more complex aspects of the job.

Also, as Artificial Intelligence becomes more interwoven with such applications, the expectation around the room was that timescales are likely to improve further still. It is a matter of ‘when’ and not ‘if’.

www.landmark.co.uk/landmark-legal www.northamptonshirelawsociety.co.uk

17

Northamptonshire Law Society

Northampton Sailability Fun on the water

by Oliver Spicer

Illnesses and injuries can change a person’s life and often it is the most active parts of their life which are lost first. Northampton Sailability is a Royal Yachting Association (RYA) approved facility based at Pitsford Reservoir which provides sailing opportunities for anyone with a disability or learning difficulty.

Access Legal Solicitors supported Sailability through their ‘Charity of the Month’ scheme in August 2018. Club chairman Roy Child took the time to speak with us about the work Sailability does. Roy has been with Sailability since 1995.

Another of the club’s members is blind but sails independently.

She sails a dinghy using the feel of the wind on her face. She goes out with a buddy boat and radio to receive information to avoid other boats but otherwise she is in control.

Since then, the club has gone from strength to strength, in 2000 becoming one of the first RYA recognised training centres and in 2002 obtaining charitable status. The club now has around 60 disabled members and 80-90 volunteers who are essential to the running the club. The club sails out of Pitsford Reservoir on Mondays, Fridays and Saturdays between April and October.

No matter the sailor’s limitations, Sailability finds a way to teach and help people do things in different ways. We have seven ‘Access’ boats in their fleet. They have been built especially for disabled people. They are very good boats, simple to sail, easily accessible and control. They are keel boats with a heavy keel to control it rather than using your weight like in a dinghy.

After being diagnosed with arthritis and scoliosis in my spine, quite coincidentally I walked into my first Northampton Sailing Club meeting while they were discussing disabled participation.

I was held up as an example of who the club wanted to support.

Shortly afterwards members from Northampton Sailing Club set up Sailability.

The club aims to help people enjoy themselves when they sail.

We pride ourselves on offering a fun, relaxed atmosphere where you can take a leisurely trip around the reservoir. Alternatively, training and progression up to Racing Level 4 is available and off shore training up to ‘Yacht Master’ level is also on offer.

Sailability welcomes all comers whether you have physical disabilities or special needs. In the past the club has hosted local special needs groups to provide an enjoyable day out.

Boats are wheelchair accessible and a hoist is available to get in and out. For those with limited movement, the servo control system in the Access boats ensures they are pretty capable all on their own.

“...No matter the sailor’s limitations, Sailability finds a way to teach and help people do things in different ways.

We have seven ‘Access’ boats in their fleet. They have been built especially for disabled people. They are very good boats, simple to sail, easily accessible and control...”

18

www.northamptonshirelawsociety.co.uk

If you would like to sail but are worried you might not be able to, visit Sailability where our experts will be able to help you out. We have members who were previously house bound but their partners brought them down to have a look, we took them out on a boat and gave them the controls. It is wonderful to see people of all abilities enjoying themselves.

Featuring an easy to use steering pillar and servo/turbo controls they are easy to control. A double skinned hull makes them basically unsinkable and they can’t capsize – I have tried many times but to no avail!

For those interested, the club participates in a number of races including organising its own ‘Summer Challenge’ open to all disabled members with a trophy for the winner at the end of the season.

The club also organises a number of open water sailing trips throughout the year on the Norfolk and South coasts.

Northampton Sailability has been seen in the more distant waters of Scotland and the Mediterranean.

Open water boats can be a problem for some disabilities, especially with cramped below deck facilities, however there are now modern boats adapted for wheelchair users. Most of Sailability’s club committee have disabilities and extensive experience so they know what is needed to accommodate members on these trips.

If you are interested in trying sailing out or if you want to volunteer, more information is available at:

www.northamptonsailability.org.uk

The rise of surrogacy and the need for DNA testing

Surrogacy is now often in the news, fueled by both our celebrity culture and by increasing awareness of the possibilities afforded by a plethora of new technologies in assisted reproduction. In fact, surrogacy is part of “fertility tourism” where couples or individuals choose to travel to other jurisdictions with a view to accessing services which may be prohibited, not available or too expensive in their native land. Such treatments are reported to number between 20,000 and 25,000 events per annum worldwide. The desire for a child has developed into a significant business sector and with differing international moral/ethical perspectives, the law has evolved quite differently in different cultures, where attitudes towards surrogacy vary from altruism to pure commerciality.

There are several reasons why couple may choose the surrogacy option, including; a) couples who cannot, for whatever reason, have their own children, b) same sex couples desirous of a biological relationship with a child or perhaps more rarely, c) by social choice. In the UK the woman who carries

the child and subsequently gives birth to the child is seen as the child’s legal mother. If this surrogate is married or in a civil partnership, their spouse could also be a legal parent of the child. In England at least, surrogacy contracts are not capable of legal recognition, which means the arrangements entered into under a compensated (reasonable expenses only) surrogacy are no more than informal agreements that rely on trust for their execution on both sides. For the legal rights of the child to be transferred from the surrogate to the intended parents (who commissioned the surrogate - notwithstanding that at least one of them may have a biological relationship to the child), an application for a parental order will need to be made within six months of the child’s birth. In doing so, the applicants are asked if they are “a genetic parent of the child”, a fact that can only be established be use of a DNA test which is conducted by an MoJ accredited provider, such as Complement Genomics and dadcheckgold.

In terms of fertility tourism, the current preferred destinations are those where jurisdictions permit “paid for” gestational surrogacy and the intended parents can gain legal rights over the child. This may either be by gaining direct parental rights or by making use of streamlined adoption procedures. It is the case that DNA testing is often required by the home authorities to prove the parentage of one or both of the donors after overseas surrogacy, by use of either a paternity or maternity DNA test, or both.

The Ukraine, Russia and Georgia have liberal laws regarding commercial surrogacy (including for foreigners) and are the current destinations of choice. Indeed, many UK couples are choosing the Ukraine since: • The intended parents of the child are considered to be the biological parents from the conception

• The intended parents are specifically named on the birth certificate to the exclusion of the surrogate mother or any donor • The surrogate mother cannot by law keep the child after birth • A donor or surrogate mother has no parental rights over the child and no adoption of the child is required • There are no restrictions on the payments.

The written and informed consent of all parties and a notarised surrogacy agreement is required (and which can be complex), plus there is the presumption that the intended parents are married, so a translated and notarised copy of the marriage certificate is also necessary.

For British parents using a surrogate in the Ukraine it is often more convenient to locally obtain a UK passport for the child once born, although proof of the genetic relationship to one or both of the intended parents is generally necessary. This can be arranged by contacting us using the details below.

The progressive approach of the authorities in the Ukraine, Russian Federation and US has already helped many childless UK couples and the law is highly favourable towards surrogacy in these jurisdictions. For intending parents wishing to go down this route, then appointment of an experienced UK based solicitor and an accredited DNA testing company is essential.

Nicola Lowes, LLM and Neil Sullivan, MBA,

1 Form C51: Application for a Parental Order (Section 54 Human Fertilization and Embryology Act 2008).

2 Article 123 of the Ukrainian Family Code (as amended 22/12/2006, No 524-V) and Orders 24 and 771 of the Health Ministry of Ukraine.

Northamptonshire Law Society

How to build robust relationships with your suppliers Regardless of the sector you are working in, relationships with your suppliers are essential to your business’s health, reputation and growth. Lauren Lieser, account manager at Geodesys, discusses how to form relationships which are robust and last a lifetime.

The selection and building of your supplier relationships is a continuous process that strives to balance your business needs with the needs of the supplier. In today’s market, where businesses are consistently prospected, using people and organisations that you can trust and rely on to provide a high-quality service is of critical importance.

Choosing a supplier can often be the toughest decision so look for one(s), where they can demonstrate expertise and longevity within the industry. Research the array of products the supplier can offer, compare them to competitors and invest time to meet with them.

Price will always be a factor, but the cheapest provider is not always the right one so clearly define what it is you are looking for and do your research into what solution accommodates this need.

At the top of the agenda for a strong relationship is communication.

If this aspect of the process is neglected, then you could risk complications arising which will lengthen the transaction process and potentially be costlier.

Having been an account manager for the past 15 years, I cannot emphasise the importance of the relationship being two-way. If the

supplier does not know about a certain issue, how can they assist in addressing it?

Regular interaction will build a trustworthy relationship which allows for open and honest discussions on product and progress updates, as well as the opportunity to demystify regulation updates, compliance, etc. Geodesys hosts a series of topical CPD workshops at various UK locations throughout the year.

These well-attended events provide a platform for our clients to hear from industry experts like Kate Faulkner, mingle with likeminded people and touch base with their account managers.

As the relationship and the communication between the organisation and the supplier develops, you will find efficiency will improve and potentially increase operational value too.

Offering feedback to the supplier is key in ensuring they can provide a service that meets your expectations and drives continuous improvement. Geodesys offers their customers for example, multiple mechanisms for gaining feedback including surveys, meetings and seminars, which helps us continually improve our systems and service.

Conclusion Developing good relationships with your suppliers is not a complicated process. Be communicative, tell them your needs and expectations, treat them fairly, be demanding and be loyal.

It’s that simple.

Geodesys is a leading provider of conveyancing searches for residential and commercial properties throughout England and Wales.

20

www.northamptonshirelawsociety.co.uk ▲ 24

Hertfordshire Law Society Gazette

Northamptonshire Law Society

The knowledge you need, the service you value.

For over 20 years, Geodesys has been perfecting its comprehensive suite of conveyancing search solutions to clients throughout the UK. Today our bespoke service – including impartial advice, EU-compliant due diligence, secure file management and dedicated support – provides total peace of mind and total compliance every time.

Geodesys. All you need to know.

Call 0800 085 8050 Email customer.services@geodesys.com

www.geodesys.com www.northamptonshirelawsociety.co.uk

21

Northamptonshire Law Society

Northamptonshire Law Society Awards 2019

by Carolyn Coles & Linda Lee

The brightest and the best of the Northamptonshire legal community were honoured at the 5th Northamptonshire Law Society Awards The achievements of Northamptonshire solicitors and the solicitors of the future were celebrated at The Marriott Hotel, Northampton, at the Society’s Annual Awards Dinner on Friday 1st March.

The event was compered by BBC Radio Northampton’s John

Griff and awards presented by Mr Oliver Spicer, President of Society .During the evening a charity draw took place to raise funds for the Sailability. The sum of £450 was raised and presented to Mr Tom Cunliffe who was present representing the charity and also the guest speaker on the night.

Winners:

The NLS Prize for Outstanding Academic Achievement during 2018

Community Person the Year: sponsored by Shoosmiths

Winner: Lauren Hamper

Winner: Sarah Harper – Shoosmiths

Lauren graduated in 2018 and was not able to be presented with her award as the awards dinner scheduled for September 2018 was postponed until March this year.

The winner of the first Community Award Sarah Harper is a long-time supporter of a range of charities which touch on her work as a medical negligence and personal injury Pro bono lawyer. There had been many glowing testimonials received from all areas who have benefitted from her dedication and support to numerous causes. The list includes Campaign for Safer Births, Brewin’s Stroke Group, and Wheelchair Basketball Group. The judges were impressed with the range of work undertaken and the level of support provided which led to their decision.

“Lauren was the highest achiever in her cohort in each of her three years of study; achieving first class grades in almost all her modules and graduating with a first class LLB Honours degree. Her dissertation on the topic of s.41 of the Youth Justice and Criminal Evidence act, in the context of the controversial Ched Evans case, was an excellent piece of work which demonstrated her ability to analyse complex legal points and to communicate them in a clear and accessible manner.

Throughout her time at University Lauren also volunteered for CoppaFeel! – a national breast cancer charity. She was elected president of the University of Northampton branch for the charity and through this role raised awareness of breast cancer throughout the student community and raised a considerable amount of money for the cause.”

22

www.northamptonshirelawsociety.co.uk

“...The brightest and the best of the Northamptonshire legal community...”

demanding cases whilst continuing with her outstanding pro bono work using her experience to the advantage of the least advantaged. Unfortunately, due to a prior engagement.

Lyndsey was unable to attend the event, so her work olleague Hassan Shar, accepted the award on her behal Northamptonshire Law Society

Junior Lawyer of the Year: Sponsored by Landmark Information Group.

Winner – Jessica Irwin – SP Law

As in previous years this category attracted a large entry and proved very competitive with some extremely able and talented people making the shortlist. The awards give an opportunity to celebrate some of the best young and rising talent in the county.

This year’s winner is really getting involved with the work of their firm who clearly feel very confident about her standard of work as she takes on an independent case load. She has undertaken pro bono work and has achieved a number of awards.

Law Firm of the Year: Sponsored by Landmark Information Group.

Winner: Wilson Browne

This year the Large Firm and Small firm categories were merged to form the one category of Law Firm of the Year. The consequence of this was that deciding on the winner of the new category provided a particularly difficult challenge to the Judges with the variation in size of the firms shortlisted being an additional factor to be taken into consideration. The quality and diversity of the nominations received for each Law firm was outstanding, causing the judges to deliberate way past their deadline.

The winning firm however ticked all the boxes in terms of accreditation, client feedback, and staff and welfare support.

However it was on the individual achievements of its staff both in respect of their contribution to their clients and the community that led the judges to their decision. Partner and Chairman of the Board of Management at Wilson Browne Solicitors, Kevin Rogers accepted the award for Large Law Firm 2017.

The Fiona Moore Solicitor of the Year Award: Sponsored by Wilson Browne: Winner – Lynsey Ward – SP Law

Fiona Moore, whose life was tragically cut short in 2014, was President of Northamptonshire Law Society in 2004. This award is presented each year in her memory.

All the shortlisted nominees had been very highly commended and as such to pick just one proved particularly difficult. The winner this year Lyndsey Ward, a family lawyer with strong academic background whom is used to dealing with highly

Kevin commented: “It was an honour to accept the award on behalf of everyone at Wilson Browne Solicitors. The willingness of our people to get involved in the community through various groups, whether they be business, education or not-for-profit is fantastic. The range of activities is humbling and inspirational – from sponsoring a classroom in the Gambia, raising money for the Air Ambulance or local hospices, and countless other great causes. Partners at the firm are all incredibly committed to, and supportive of, these activities.

We are enjoying a period of sustainable growth, and we have attracted some great people to join us over the last two years whilst retaining key staff, and continuing to train tomorrow’s lawyers. Investment in technology and an aim to provide expert advice in a professional but down-to-earth and friendly way, has served us well.

On a personal note, it was an honour to present this year’s Fiona Moore award: Fiona was a partner in the firm, a great supporter of the NLS, and a past president. I know that she would approve, and that she would encourage all law firms to www.northamptonshirelawsociety.co.uk

23

Northamptonshire Law Society

remain (or become) actively engaged with the society. I would like to repeat my thanks from the evening to Phil Smith, for all he as done for the society, to the Patrons and the Judges for their engagement, investment and time. This Award means an awful lot to everyone associated with the firm (past and present) - we are very grateful.”

Dedicated to his local client base Robin has survived the trials of running a small practise and being a Sole Practitioner, worked through both the growth and the death of Legal Aid and adapted to the changing needs of his local community – a tremendous achievement. No working day has ever been the same.

In or around 1994, Robin joined the NLS Committee, becoming Chair of Education & Training for the County at a time when training was monitored by the Society, which meant interviewing selected trainees from time to time, recommending improvements to the appropriate firms if need be. Robin served as President of Northamptonshire Law Society in 2004/2005 and Phil Smith was recruited under Robin’s Presidency.

As a member of the national Law Society’s Council Membership Committee for an unusual 9 years this meant travelling to Chancery Lane some 4 to 6 times a year, together with intervening sub-committees as and when required. Over time, Robin have represented the Law Society in solicitors’ disputes with Barristers over work done and fees charged.

Throughout, taking up training contracts, losing count after 10, Robin thinks.

Outside of his work Robin immerses himself in charitable causes that remain close to his heart, along with his passion for Sailing Swimming and rugby.

Lifetime Achievement Award : Winner – Robin Shepherd

This award is not presented every year and it is at the discretion of the President to decide who, if anyone, should be recognised.

Jabeer Miah from Shepherd and Co gave the guests a brief history of Robin’s career and achievements.

Upon qualification, Robin practiced Criminal Law, Matrimonial and Litigation working in DF and A as it was then known, moving to Towcester in 1983.Founding Partner of Shepherd & Co in Towcester he has been a general practitioner serving the Towcester and South Northamptonshire community since 1983.

Over the decades Robin has worked in a wide range of disciplines including family law, crime, road traffic offences, Magistrates and County Court work, company & commercial, commercial property, conveyancing, litigation, employment law, Wills and Probate, Trusts, Court of Protection and Attorneyship work. A truly impressive range reflecting the diverse needs of his clients.

“...The final acknowledgement went to our wonderful outgoing Law Society Manager, Phil Smith who is retiring to fulfil his ambition to obtain a clear round at golf, and to continue his travels with his lovely wife Michelle...”

24

www.northamptonshirelawsociety.co.uk

The final acknowledgement went to our wonderful outgoing Law Society Manager, Phil Smith who is retiring to fulfil his ambition to obtain a clear round at golf, and to continue his travels with his lovely wife Michelle.

Phil collected his token of thanks to a standing ovation, and a heartfelt speech from Robin Shepherd who was instrumental in employing him to the position almost 15 years ago. We hope to see as many of you there as possible next year and would encourage you to nominate colleagues and firms in each of the award categories. Look out for the date and details of the categories in further editions of the Bulletin later in the year.

The Society would like to thank the Patrons of the Society, The University of Northampton, QPI Legal Ltd., Hawsons Chartered Accountants and Landmark Information Group for their support of this event. Also the event sponsors for the dinner, Landmark Information Group, Wilson Browne LLP. Shoosmiths H.W. Coates Ltd.

Relaxing Care When you see those words, holidays, reading a good book, sitting in the garden on a sunny day, a spa day at a local centre, etc. may come to mind.

Relaxing Care

However, relaxing care can be viewed in a different, not often used mindset, but one that has special significance in the care sector.

Care provision for people who must rely on a care support service to enable them to get through each day of their lives, need relaxing care.

Angela Gifford, MD. Able Community Care Ltd.

When you see those words, a goodthat book, in the Individuals and families areholidays, seeking areading care service willsitting be a comfort, delivered in a stress free garden on a sunny day, a spa day at a local centre, etc. may come to mind.

and soothing manner, delivered by appropriate carers who by the way they offer their support will Everyone responds kindness, to someone However, relaxing care can be of viewed in a different, not often reduce any anxiety, loss dignity and worries that the recipient andtotheir families have. who empathizes

used mindset, but one that has special significance in the care with the situation someone else other than themselves is in. sector.

In this world of ‘training’ understanding and compassion theproviding positioncare of aservices person Havingof been forwho nearlyneeds four decades, the compliments we receivenot about care workers are almost Care for people who words must rely a care careprovision is relegated to a few aton the end support of a training course or possibly mentioned at all. service to enable them to get through each day of their lives, always based not on the ability that they have with reference to practical tasks, butthe as to how kind, someone lovely, cheerful, need relaxingresponds care.

Everyone to kindness, to someone who empathizes with situation elserespectful, calm and reliable they are.

Individuals and families are is seeking other than themselves in. a care service that will be a comfort, delivered in a stress free and soothing manner, In 2019, we should all make sure, that the thought of ‘relaxing’ care gains significance. delivered appropriate carers whoservices by the way they offer their Having by been providing care for nearly four decades, the compliments we receive about support will reduce any anxiety, loss of dignity and worries caretheworkers always they have with reference to practical that recipient are and almost their families have.based not on the ability that For a free brochure please

tasks, but as to how kind, lovely, cheerful, respectful, calm and reliable they are.

In this world of ‘training’ understanding and compassion of the position of a person who needs care is relegated to 2019, weatshould sure, thatorthe thought aInfew words the end all of amake training course possibly not of mentioned at all.

contact 01603 764567 or email ‘relaxing’ care gains significance. info@ablecommunitycare.com www.ablecommunitycare.com

Written by: Angela Gifford. MD of Able Community Care Ltd

For a free brochure on any of our professional care services call us today on 01603 764567

Live-in Care

Holiday Companion Care

www.ablecommunitycare.com

Home from Hospital Care

Respite Care

info@ablecommunitycare.com www.northamptonshirelawsociety.co.uk

25

Northamptonshire Law Society

The COLP’s Duties Under The SRA’s New 2019 Regulatory Arrangements

by Linda Lee & Nigel West

The SRA will shortly be changing the Code of Conduct.

That will be the fourth time the SRA has changed the Code in 12 years. COLPs may well feel aggrieved that the changes lead to unnecessary cost as firms try to change their practices to ensure compliance with ever changing rules.

On the face of it, there are some dramatic changes. At present there is one Code for individuals and firms. Under the new rules, there will be two separate Codes for individuals and firms. The Outcomes of the 2011 Code have been abandoned. Indicative behaviours have disappeared completely. New rules, which are now called “Standards”, take their place.

Despite those changes the SRA informed the LSB when applying for approval that:“Firms and individuals who do not want to make changes to their current arrangements will in the main not have, or need, to do so”1 COLPs should be wary of relying on that statement. There are in fact a number of changes to the Codes which COLPs need to take into account to ensure that their firms do not inadvertently breach the new Codes.

This article identifies the new standard which sets out the COLPs duties and then summarises eight of the main changes to the extent of the COLP’s duties.

Standard 9.1 The COLP’s duties are set out in standard 9.1 of the SRA Code of Conduct for Firms 2019 (“the Firm Code”). Standard 9.1 states:

“If you are a COLP you take all reasonable steps to:

(a) ensure compliance with the terms and conditions of your firm’s authorisation;

(b) ensure compliance by your firm and its managers, employees or interest holders with the SRA’s regulatory arrangements which apply to them;

(c) ensure that your firm’s managers and interest holders and those they employ or contract with do not cause or substantially contribute to a breach of the SRA’s regulatory arrangements;

(d) ensure that a prompt report is made to the SRA of any serious breach of the terms and conditions of your firm’s authorisation, or the SRA’s regulatory arrangements which apply to your firm, managers or employees,

save in relation to the matters which are the responsibility of the COFA as set out in paragraph 9.2 below.”

Behaviour outside the office Standard 9.1(b) places COLPs under a duty to take reasonable steps to ensure managers and employees do not breach any of the regulatory arrangements relating to them. Managers and employees who are solicitors are under a duty to comply with the

26

www.northamptonshirelawsociety.co.uk

Principles, and a number of the Principles (such as the duties to uphold the law and encourage equality diversity and inclusion) extend to an individual’s private life.

That means that the COLP’s duty to ensure managers and employees do not breach the Principles extends to behaviour outside the office. It may require (for example) new provisions in employment contracts and firm manuals on behaviour outside the office, including behaviour such as drink driving and comments on social media which offend the principles of equality diversity and inclusion.

Financial stability It is a common misconception that the COFA is the only compliance officer responsible for monitoring and controlling financial stability. Under the 2011 rules, the COLP and the COFA are jointly responsible (the COLP’s responsibility arises under Outcome 7.2 of the 2011 Code).

The position will change under the 2019 regulatory arrangements, as there will not be an obligation on the COFA to monitor and control financial stability. There is an obligation to “actively monitor” financial stability under Standard 2.4 of the Firm Code, and the obligation to police that monitoring falls on the COLP alone under Standard 9.1(b) of the Firm Code.

Contracts with third parties Standard 9.1(c) of the Firm Code places an obligation on COLPs to monitor contractual arrangements with third parties to ensure they do not cause or substantially contribute to a breach of the SRA’s regulatory arrangements.

Surprisingly, the obligation in Standard 9.1(c) relates to third parties with whom the managers and interest holders contract, rather than third parties with whom the firm contracts. However the rule is likely to be treated as a rule which encompasses contracts between the firm and third parties. It is likely to place COLPs in a position where they need systems to monitor the firm’s outsourcing arrangements, as well as arrangements with for example claims management companies and medical agencies in personal injury work. The monitoring may need to encompass issues such as data protection, confidentiality, the need for solicitors to maintain their independence, the need to act in the client’s best interests and cold calling.

Continuing competence Standard 7.1 of the SRA Code of Conduct for Solicitors, RELs and RFLs 2019 (“the Individual’s Code”) introduces a new standard requiring solicitors to keep up to date with the law. An identical provision has been added to the Firm Code (standard 3.1), and that means that the SRA expects firms to make sure that all the solicitors in the firm keep up to date with the law. COLPs are likely to need to introduce new systems to monitor continuing competence.

Standard 3.6 of the Individual’s Code and standard 4.3 of the Firm Code impose a similar obligation on COLPs to make sure that

all employees and managers understand their “legal, ethical and regulatory obligations.” It is not clear what is meant by “ethical” obligations, or whether the ethical obligations are wider than the obligations under the Principles.

The scope of the work carried out by the firm Rule 6.1 of the SRA Authorisation of Firms Rules 2019 restricts the scope of work which can be carried out by all regulated firms (apart from ABSs) and will therefore place a duty on the COLP to monitor and control the scope of the work carried out by all members of the firm.

Rule 6.1 states that the business of recognised bodies and recognised sole practices “may consist only of the provision of (a) professional services of the sort provided by individuals practising as solicitors and/or lawyers of other jurisdictions, (b) the services set out in annex 2 (whether or not they are also included in paragraph (a)) and (c) if the firm has a notary.. professional services of the sort carried out by notaries public.”

date with published reports on new cybercrime scams affecting law firms (the SRA and the Law Society for example publish information on scams affecting Law Firms), to review the firm’s systems on a frequent basis to ensure they provide protection against the new scams and to train staff on a regular basis on the ever changing nature of cybercrime fraud.

Reporting serious breaches Under rule 8.5(c) of the SRA Authorisation Rules 2011 the COLP is under an obligation to “as soon as reasonably practicable report to the SRA any material failure… to comply…[with the rules]”. The wording of that obligation changes under the new standard 9.1(d) of the Firm Code to an obligation to “ensure that a prompt report is made… of any serious breach”. That new wording probably makes no practical difference to the reporting obligations. i SRA application to the LSB for approval of regulatory arrangements, August 2018 page 24.

Annex 2 lists twelve categories of business which can be carried on: ADR; financial services; estate agency; management consultancy; company secretarial services; other professional and specialist business support services including human resources, recruitment, systems support, outsourcing, transcription and translating; accountancy services; acting as a Parliamentary agent; acting as a bailiff; education and training activities; authorship, journalism and publishing.

The COLP will have to take reasonable steps to ensure that none of the firm’s business activities fall outside the scope of rule 6.1 and Annex 2.

As stated above, Rule 6.1 does not apply to ABSs. There is no need for it to do so because an ABS is already under a comparable obligation to comply with the terms of its licence and any conditions or waivers attached to the licence. By standard 9.1(a) of the Firm Rules, the COLP of an ABS will be under a duty to take all reasonable steps to ensure that the ABS complies with the terms of its authorisation.

Record Keeping Rule 8.5(c) of the SRA Authorisation Rules 2011 states that the COLP must take all reasonable steps to record any failure to comply with any obligations imposed under the Handbook (apart from the Accounts Rules) and make such records available on request to the SRA. That express duty has been removed from the new standards (see standard 9.1 of the Firm Code). However that does not mean that there is no longer a need to keep records of breaches. The SRA has often said that records of breaches are needed to monitor a firm’s systems and to identify any patterns of breaches which, when viewed cumulatively, constitute a material or serious reportable breach.

Linda Lee

Linda Lee has been Council Member for Leicestershire, Northamptonshire and Rutland since 2003. She is a past President of the Law Society of England and Wales and is the current Chair of the Regulatory Processes Committee and a member of the Policy and Regulatory Affairs Committee and Access to Justice Committee. She is current Chair of the Solicitors Assistance Scheme. Linda is an experienced litigation solicitor and is a Consultant at RadcliffesleBrasseur where she specialises in solicitors’ disciplinary, compliance and regulatory work. She can be contacted by email at: lindakhlee@aol. com

Nigel West

Nigel West is a partner at RadcliffesLeBrasseur specialising in solicitors regulatory matters. He has defended solicitors in the Solicitors Disciplinary Tribunal for over twenty years. He is the co-author of the Law Society’s text book on the Solicitors Disciplinary Tribunal and the author of the section in Cordery on Legal Services on “How the SRA Works”.

He is also the cases editor for the Law Society’s Legal Compliance Bulletin and he sits as a defence representative on the SDT’s user group

Cybercrime and client instructions during the course of the retainer Standard 3.1 of the Individual’s Code introduces a new standard requiring solicitors to only act on instructions from the client, or someone with authority to provide instructions on the client’s behalf. An identical standard has been added to the Firm Code. In the SRA’s application to the LSB for approval of the new regulatory arrangements the SRA said that it is introducing those standards to combat the increasing prevalence of cybercrime and identity fraud. Cybercrime scams continually change, because businesses become aware of the old scams and rogues have to find new ways of scamming victims. To comply with the new standards it may be advisable for COLPs to introduce a system for keeping up to

www.northamptonshirelawsociety.co.uk Untitled-3 1

27 12/03/2018 12:55

Northamptonshire Law Society

What The Inheritance Tax Incentive Means To Charities

by Rob Cope

Inheritance Tax affects a small proportion of estates and yet the tax incentive for charitable estates has a huge impact. Why does it matter so much and, in light of the ongoing review of Inheritance Tax, what is being done to protect the current environment for gifts in wills?

Rob Cope, Director of Remember A Charity, says: “It’s a common misconception that tax relief is all about financial incentives. No matter how generous a tax break is, it’s rarely the sole or even primary reason to leave a charitable legacy. Ultimately, people give because they care and are inspired by the cause. Because they want to leave a positive contribution on the world when they are gone.”

While the first OTS report was published shortly before Christmas and focused on how the administrative side could be simplified, it is the next stage that will unveil proposals for how IHT may be structured and what this might mean for the sector. It is impossible to second guess what decisions will be made, but Government has long supported gifts in wills and Remember A Charity is optimistic that future tax policies will continue to encourage and inspire giving.

Charities are increasingly reliant on gifts in wills

Why is the Inheritance Tax break so important for the nation’s charities?

Here in the UK, the public gives over £3 billion in legacy donations annually. More charitable services are being funded through gifts in wills and the number of supporters is on the rise. In what remains a challenging fundraising environment, this income has never been so important.

Currently, we have one of the most encouraging national fiscal environments to promote legacy giving. Charitable gifts in wills are exempt from IHT (charged at 40%) and any estates that includes donations of 10% of their value (or above) also benefit from a discounted rate of 36% across the remaining value of the estate.

This framework has had a major impact on legacies, but not always in the way that most people might expect. Yes, research shows the tax relief can be a strong incentive for people to give, particularly for those who lie just over the IHT threshold. But the real issue here is that tax relief gives solicitors and financial advisers the added impetus to discuss legacy giving with clients. Because there is a tax benefit, legal advisers and Will-writers have a natural entry point for discussions with clients and this has been an important factor in driving behavioural change. Cope adds: “Within this environment – one that normalises legacy conversations and conveys the state’s support for the concept – gifts in wills are becoming so much more commonplace. The tax incentive is working and that’s why it is protected.”

Tax incentives at risk The ongoing review of IHT by the Office of Tax Simplification (OTS) is an opportunity to create a more fair and simple system for the public, but it also puts the tax incentive for legacy giving in jeopardy.

In fact, a recent proposal from one leading thinktank even suggested that IHT should be abolished altogether with little reference to the impact on charities.

Cope says: “The reality is that the tax incentive serves to encourage and normalise charitable behaviour. It brings legacies front of mind, gets conversations about charitable giving started and helps to communicate just how meaningful a charitable bequest can be. It is hugely important that this incentive is maintained. Charities simply cannot afford to lose any legacy giving incentive, least of all IHT relief.”

hope A gift in your Will could give

of a world free from MND

to encourage and normalise charitable

What if the first time someone heard the words, ‘you have motor neurone disease’, they could be followed by ‘but there is hope’? Leaving a gift in your Will could make that future a reality.

behaviour. It brings legacies front of mind,

www.mndassociation.org/wills

gets conversations about charitable giving

Every day six people are diagnosed with MND and there is no cure. If you have any questions or would like to discuss gifts in Wills, please email emma.fellows@mndassociation. org or call Emma Fellows, Legacy Manager, on 01604 611898.

“...The reality is that the tax incentive serves

started and helps to communicate just how meaningful a charitable bequest can be...”

Registered charity no: 294354

28

www.northamptonshirelawsociety.co.uk

Registered Charity number 264221

Northamptonshire Law Society

W

e are a UK charity providing a fantastic selection of high-quality audiobooks to some 50,000 people across the UK who find it difficult or impossible to read due to an illness, disability, learning or mental health difficulty. We charge a membership fee to only half of our members- those who feel they can make some contribution and that is heavily subsidised. The other half need to be fully funded. Listening Books receives no central government funding whatsoever and very little local government funding. The reality is that Listening Books simply could not survive without the generous support of sponsors and the active co-operation of publishers.

Whether you have already written your will or are thinking about writing one in the near future, we ask that you consider leaving a legacy to Listening Books. Your legacy will make a vital difference to the lives of our members for years to come.

CALL US NOW on 020 7407 9417 or email us at: bdee@listening-books.org.uk

www.listening-books.org.uk/Legacies 12 Lant Street, London SE1 1QH

Listening Books.indd 1

Your gift is my future

29/10/2018 15:07

The Lowdown offers a caring environment where young people are supported in their journey towards emotional health and wellbeing.

We provide free and confidential counselling, sexual health and LGBTQ support services six days a week for 11 – 25 year olds in Northamptonshire.

Your support will help to improve, and occasionally save, lives of our young people in the Northampton Community.

“The demand on our services is growing and within our 30th year our goal is to expand capacity and reduce waiting times at the lowdown for young people in need of emotional support and wellbeing.”

www.thelowdown.info 01604 634385

3 Kingswell Street, off Gold Street, Northampton, NN1 1PP Registered Charity No: 801886

Hope helps get people off the street and gives individuals the opportunity to make a future for themselves…

Your gift will give the most vulnerable in our society the chance of a better life off the streets and free from their past…

Leaving a gift to The Hope Centre in your will helps us give homeless people the practical help and support they need to move forward with their lives.

Speak to your solicitor to discuss how to include Hope in your Will.

Northampton Hope Centre Oasis House, 35- 37 Campbell Street, Northampton, NN1 3DS t: 0845 519 9371 e: office@northamptonhopecentre.org.uk

www.northamptonhopecentre.org.uk Registered charity no. 1015743

www.northamptonshirelawsociety.co.uk

29

Expert Witnesses – Impartiality and Balance Author: Ben Zielinski

In two recent but very different cases, there have been unusually strong criticisms of expert witnesses. They highlight the need for any expert witness to be seen to be independent and impartial and for their evidence to be balanced and not one-sided.

Evidence from expert witnesses plays a crucial role in determining many disputes in different fields. For example, in personal injury cases, evidence from a medical practitioner will be required. Or in a commercial action where there are technical issues in question, the court may need evidence from an expert in the relevant field. Without experts to explain the medical, scientific or technical matters, a judge may be unable to understand properly significant aspects of the case and make appropriate findings about them.

evidence of an expert witness. Neither expert’s independence was in question. However, the judge, Lord Bannatyne, formed a markedly different view of the two experts and their evidence.

Armstrong v ERS Syndicate Management Ltd – independence and impartiality

‘... This resulted in the pursuers losing those elements of the damages awarded to them that were reliant on the expert’s evidence....”

In our adversarial system of litigation, it is for each party to choose and instruct their own experts and adduce evidence from them. A party will naturally want their own expert’s evidence to support their position. Therefore, a party will generally only produce expert reports and call as witnesses, experts whose evidence is going to help that party’s position.

However, if an expert is not impartial or gives evidence that appears one-sided, the evidence, although supportive of the party’s position, may turn out to be little or no worth, as demonstrated by two recent cases.

The first case, Armstrong v ERS Syndicate Management Ltd, was a low value personal injury claim. The pursuers relied on the evidence of a medical expert with respect to the extent of their injuries. They were awarded damages based on that evidence. The defenders appealed, arguing that the expert evidence should have been found inadmissible or, alternatively, should have been given no weight. The main reason was that the expert’s independence and impartiality was questionable because he had agreed to act of contingency basis, meaning that he would only get paid if the claims were successful. The Sheriff Appeal Court had little hesitation upholding this appeal and finding the expert’s lack of independence and impartiality rendered their evidence inadmissible.

This resulted in the pursuers losing those elements of the damages awarded to them that were reliant on the expert’s evidence.

Agilisys Ltd v CGI IT UK Ltd – balanced approach The case of Agilisys Ltd v CGI IT UK Ltd was a very different type of case. A commercial action in the Court of Session, it concerned the termination of a subcontract for the provision of information technology services to a significant public sector client.

The parties, the main contractor and sub-contractor, were in dispute about a number of issues that boiled down, broadly speaking, to which party was in breach of its obligations and responsible for various delays. Each party relied on the

Lord Bannatyne criticised the evidence of CGI’s expert witness in unusually direct terms. He stated: “I have come to the view that his evidence was one-sided. His approach was I believe not balanced. In addition for various other reasons I believe his evidence was not acceptable.” Over the subsequent eight pages of his opinion, the judge set out numerous matters that had led him to that conclusion.

He highlighted, in particular, the expert’s failure to consider whether CGI might have breached any of its obligations.

It is also noted that, on one occasion, when faced with the realisation during cross-examination that part of his evidence had not in fact helped CGI, the expert switched from one position to another. This was described as “highly unimpressive in the context of someone who is being offered as giving expert evidence.”

By contrast, Lord Bannatyne noted that Agilisys’s expert “looked at the responsibilities of both CGI and Agilisys” and was “prepared to make criticisms of Agilisys”, which he said were “examples of the essential balance in her approach”.

Given his contrasting impressions of the two experts, it is unsurprising that, where their evidence differed, the judge largely accepted the evidence of Agilisys’s expert and rejected that of CGI’s.

Conclusions Expert evidence is critically important to many cases. When that is the case, parties need to make sure they have experts whose evidence supports their case. However, as these two cases show, it is not enough to have an expert who will give helpful evidence. The expert must be independent and impartial and their evidence should be balanced and not onesided. Otherwise, the expert’s evidence may be given little credence or even, if the expert lacks independence, be held inadmissible.

Disclaimer This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

IGNORANCE IS NO DEFENCE Northamptonshire Law Society

DevAssist investigates locations for development risks that could impact a property.

We are an accredited CPD provider on development and planning.

Our products:

For more information: t:

01342 890010

e: helpdesk@devassist.co.uk w: www.devassist.co.uk

PROTECTING BUYERS, SOLICITORS & LENDERS

For a friendly service, free expert advice, competitive prices and jargon free reports

Criminal - Civil

LSC Welcome

Experienced in the investigation of all digital media including cases involving: Computer Misuse | Child Abuse | Terrorism IP Theft | Murder | Rape ‌

Northampton’s Digital Forensics and Data Recovery Experts

Griffin Forensics Ltd, 5 Oxford Court, St James Road, Brackley NN13 7XY

W: griffinforensics.com DX:16982 Brackley

T: 01280 707190 F: 01280 707199

www.northamptonshirelawsociety.co.uk

31

And Finally…

Northamptonshire Law Society

... here is a round up of the topics, events and news that were not covered in this edition from Carolyn Coles, Society Manager.

Welcome to the Spring Edition of the Bulletin.

Well as this is my first official edition of the bulletin, what can I say! Its been a very busy 3 months, getting to grips with the protocol, the history and the day to day running of the Society, and the wide variety of queries I am tasked with assisting via the Law Society phoneline, but I wouldn’t have it any other way!

As many of you are aware we have just celebrated our Annual awards dinner, and it was well supported by many local law firms and chambers. The prize winners were all very much deserving in their awards, especially the new category of “Community person of the year” sponsored by Shoosmiths.

The charity supported by the evening was Sailability; based at Pitsford reservoir.

This charity helps people with all types of disabilities to enjoy the exhilaration of being out on the water, enjoying the fresh air and trying a new experience.

Mr Robin Shepherd was honoured with a lifetime achievement award, details of which can be found in the full article, and we said our final farewell to Phil Smith who has looked after the Society for the last 14 and a half years. He will be missed

terribly, but he now has more pressing matters of golf clubs to swing and travels to take. We all wish him the very best !

As we move into the lighter months, we have the LANSCA Quiz night to look forward to, details of venues, dates and times will follow.

We have another Richard Snape training course in July, the topic this time – Ground Rent, Service Charge & Estate Rentcharge Issues in Conveyancing’ again details will be coming out nearer the time And I’d like to say a quick but heartfelt thank you to all the people who have been kind and patient will me whilst I get settled into the role.

Please feel free to contact me, should you wish to add anything to future Bulletins; The new contact details for the Society are:Email: sec.NLS@outlook.com Office Number: 01604 881154 My mobile: 07543 662572

Carolyn Coles

Carolyn Coles - Society Manager

It’s a

NO-BRAINER! There are many good reasons why over 15,000 conveyancing professionals trust us with their clients’ legal indemnity insurance needs.

Order one of our insurance ‘Packs’, register ‘Online’ or call us to find out why it’s a no-brainer!

Visit gcs-title.co.uk/SE

gcs-title.co.uk 01435 868050 underwriters@gcs-title.co.uk

32 www.northamptonshirelawsociety.co.uk GCS Advert Design - Dec18_05.indd 1

21/12/2018 13:08

Tailored solutions for the investigation of road traffic collisions The experts at FCIR are experienced in writing expert reports and producing exhibits for all Courts. They are Conversant with Civil and Criminal Procedure Rules and routinely provide live evidence in Court.

FCIR are often instructed in cases of Causing Death by Dangerous Driving, Murders, Causing Serious Injury by Dangerous Driving and the Careless Driving counterparts. They are also regularly instructed in multi million Pound litigations and are routinely praised for the level of detail included in their analyses.

FCIR use the latest specialist equipment in their analysis, from Control module downloads from vehicles to 3D Laser scanning of a collision locus. When it has to be right, FCIR are the team to deliver.

FCIR are specialists in the analysis of road traffic collisions and the investigation of incidents involving road Users of all types. They offer expert witness services in both civil and criminal cases, covering the following areas: ■ Full In-depth Analysis

■ Vehicle Examinations

■ Plans/Scale Drawings

■ Reconstruction Reports

■ Scene Photographs/Videos

■ Incident Data Recorder/CDR Analysis

■ Verification of Expert Reports

■ CCTV Analysis

■ 3D Laser Scanning/Simulation

All change (again!) for the SRA Accounts Rules Northamptonshire Law Society

By Julian Bryan, Managing Director, Quill

Where the SRA Accounts Rules are concerned, law firms are no strangers to change. The past few years have brought several phased changes including to the format of accountants’ reports, role of the reporting accountant and exemptions for firms requiring an accountant.

4. A notable addition is the ability to use a third-party managed account as an alternative to the traditional client account.

In a continued concerted effort to simplify and modernise the legal system, the SRA is once again making changes to the rules with the current draft being just 7 pages long and containing only 13 rules. This is a significant departure from the existing 52 rules, several appendices and 80 pages.

7. There’s no distinction between professional and non professional disbursements. Plus, fees and disbursements can only be paid when a bill is raised.

With July 2019 being touted as a potential implementation date, there’s no time to lose in getting prepared for the new rules. That’s why here we’re going to cover the why, when, what and how…

Why the need for change?

As already intimated, it’s all about simplification but retaining an essential emphasis on protecting client monies. The SRA’s intention is to allow legal practices greater flexibility over how they operate, the ability to judge independently and make legal services more accessible to the public.

To quote Paul Philip, SRA Chief Executive: “Our reforms focus on what matters: the high professional standards that offer real public protection rather than unnecessary bureaucracy that generates costs, constrains firms and hinders access to legal services. We believe that the changes will make it easier for firms and solicitors to do business and to meet the needs of those who need their services.”

Can’t say fairer than that. So, while the short term may cause you some pain as you begin to adopt the new rules, unless your existing set up already meets the new requirements, in the long term you’ll be able to manage your accounts and run your business in a less prescriptive way.

When do the new rules come into force?

Guidance notes are likely to be circulated before the rules become mandatory. These notes will act as a toolkit. No official date has been set for either document – guidance notes and accounts rules – but July is predicted for the latter.

5. Guidance notes, if made available, will be separate, not attached to the rules, and released any time.

6. There’s no definition of office money. This means it’s either client monies or not client monies.

8. Monies incoming from the Legal Aid Agency are no longer covered in the rules. This money can be held in the office account in future.

9. Bank accounts must still be reconciled every 5 weeks. This requirement has been extended to client’s own accounts or “passbooks”.

10. Although the exemption limits for accountants’ reports are unchanged, definitions of statements or passbook balances has changed and includes joint or client’s own accounts.

As a result, firms currently exempt may not be exempt.

How can you prepare for change?

Ahead of implementation, the SRA will provide much-needed further clarification on these important changes and empower legal practices to prepare accordingly.

In simple terms, if you’re compliant with the current rules, complying with the new rules will be relatively easy. It could be a straightforward case of stating the new rules in your policies. An internal audit is advisable too. A few minor tweaks to procedures here and there may be all that’s needed. At this review stage, define “promptly”, document your systems and controls, and ensure everyone is aware of your processes – your cashiers, COFA, new starters and reporting accountants.

If you’ve been considering outsourcing your cashiering, these new rules are the ideal time to do so. By outsourcing your accounts function to specialists in the field, such as Quill, your supplier keeps abreast of ever-changing solicitors’ accounts rules so you don’t have to. Become a Quill client and we’ll manage your accounts in a compliant and timely manner, while you focus on other pressing business matters.

To find out more on Quill, please visit www.quill.co.uk/ At a glance, the 10 primary points of difference from the old to outsourced-legal-cashiering, email info@quill.co.uk or call 0161 236 2910. To check the current status of new rules are:1. Its much-abridged format means each of the remaining 13 the new SRA Accounts Rules and possible supporting guidance notes, go to www.sra.org.uk. rules are considerably condensed.

What are the main changes?

2. With no time deadlines, you’ve got the freedom to decide your own timeframes.

3. Following on from #1 and #2, the new rules are principle based rather than prescriptive and contain less definitions.

Interpret how you wish and do what’s reasonable.

34

www.northamptonshirelawsociety.co.uk

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.

O

CA

IN O R C A S H I£ R G I £ R

CASH

E

G

TI

RI

PA

NG

LE A

N HOLI D A I£R O Y ?

SH CA ?

VE

CAS HI £R

N

RNITY LEAVE? E AT HI£R ON SI M S CK

RT

OR

TIM E?

R E SI G NI N G ?

OUTSOURCING YOUR CASHIERING?

QUILL IT!

0161 236 2910 info@quill.co.uk quill.co.uk/quillit

Obtain client signatures anywhere, anytime Secure, simple to use paperless technology from LawConnect allows your clients to digitally sign documents from anywhere in the world. This eliminates delays and drives efficiency.

Share documents securely

Track the progress of your documents

Collaborate in real time

Receive proof of completion in a instant

Impress your clients, improve productivity and future-proof your law firm.

leap.co.uk/lawconnect