Northamptonshire Law Society Summer 2020

www.northamptonshirelawsociety.co.uk Summer 2020

Northamptonshire Law Society

Northamptonshire Law Society Bulletin

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Contents

Summer 2020

Merseyside, CH41 4JQ Tel: 0151 651 2776

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The President Writes

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Constituency Council Member’s Report

Managing Editor - Carolyn Coles

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2020 Conveyancing: Adapting to the New Normal

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Obituary: Bruce Hodson: 5th October 1939 - 21st May 2020

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Golf with the Law Society

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Why the Surge in Demand for Will-writing Could be Instrumental to the Charity Sector’s Recovery

Media No. 1111

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Paul v The Royal Wolverhampton NHS Trust

Published July 2020

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Government Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency

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The Legal Business of Business is Changing

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Termination for insolvency: The clock is ticking

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And Finally…

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Law Society Bulletin

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Northamptonshire Law Society

President

Sharine Burgess

Deputy President Jabeer Miah

Immediate-Past President Oliver Spicer

Honorary Secretary Ika Castka

Honorary Treasurer Afua Akom

Constituency Member & Past President Linda Lee

Council Members:David Browne Laura Carter Michael Orton Jones Karen Shakespeare Euan Temple - Past President Edward St John Smyth- Past President Afua Akom Aimee Johns Amy Leech Lynsey Ward

Co-opted Members: Sarah Franklin Maurice Muchinda

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.

The President writes...

Welcome to the last edition of the Bulletin.

It is difficult to comprehend the changes to all our lives since the last edition. No one could have predicted the pace and scale of what has happened over the past couple of months. Many of you are adjusting to working from home which brings its own challenges particularly if working with children at home, worrying over vulnerable people in your lives and a whole host of other demands, which the current environment brings.

Northamptonshire Law Society

OďŹƒcers & Council Members 2020

We have all experienced an incredible amount of change in a short time and I think it is important to recognise that this can be overwhelming and may have an impact on mental health and wellbeing. I think it is incumbent on us all to keep in contact with colleagues whether they be working remotely, in the office or on furlough leave and to discuss issues, share experiences and anxieties and develop collective solutions. I encourage you to share with your colleagues and friends your personal experiences of adjusting in the current climate and any practical ideas which you have applied to your own situation which have kept your mental health in check during these challenging times. This is certainly something which I have being doing and I have received some excellent pointers from colleagues to help me cope with the demands of the day job and home schooling.

Despite the lockdown, I confirm that Council met in May as planned.

The meeting took place by Zoom which was a new and enjoyable experience for us all (I think). Further Council meetings will take place by this medium for the foreseeable future. We think it is important that we conduct business as usual as far as the current restrictions permit as we recognise that in these unusual times we face different challenges in a strange new world.

We are intending to continue to provide our training programme this year although this will be delivered by video conferencing until further notice so please do continue to book in the usual way by contacting our Society Manager Carolyn Coles at sec.nls@outlook.com We will continue to publish the Bulletin although this will be in electronic format until further notice so please do continue to submit articles and items of interest. If there is a topic you would like to see covered in the Bulletin please let me know.

As I reported in the last edition it was with great sadness that the Annual Awards Dinner due to take place in May 2020 had to be cancelled. However, it remains our intention to reschedule the event as soon as we are able to so watch this space for a further announcement.

I am very much looking forward to attending the event once it is safe for us to all get together again.

Finally, Council also discussed practical ways we could help our members who are experiencing employment insecurity at the moment particularly if you have lost your job or are at risk of doing so or if your training contract is in jeopardy because of the economic uncertainty.

I would be interested to hear from any of our members facing these challenges.

Stay safe and happy reading!

Sharine Burgess

President Northamptonshire Law Society sharine.burgess@shoosmiths.co.uk

www.northamptonshirelawsociety.co.uk

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Northamptonshire Law Society

Constituency Council Member’s Report June 2020

by Linda Lee

Hardening Professional Indemnity Insurance Market (PII) The Solicitors Regulation Authority (SRA) Board met on 22 June 2020 and received a report on the hardening PII marketi.

The SRA’s research indicates that the market has hardened and contracted for the following reasons: a. A changing claims profile including a rise in claims and a rise in higher value claims b. Increased claims in other areas of the insurer’s business impacting on their capacity to offer PII c. Poor investment returns from money received from premiums d. Some features of solicitors’ insurance requirements are unattractive to insurers, in particular the requirement that insurers must cover closing firms for six years run off even when they do not pay the premium Although some of the features of the solicitors’ PII market are unique to the legal sector, the hardening and contracting of the PII market is cross-sector.

Some insurers have pulled out of the PII market completely, including two in the last year, leaving 180 firms looking for a new insurer.

The insurers and brokers that remain in the market have indicated that they have less capacity and a reduced risk appetite, as a result, they are more cautious about who they choose to insure and on what terms. Insurers are generally demanding a higher level of due diligence about the risks a firm presents and how they are managing those risks, including in relation to cyber-security, before they will consider renewing existing policies or offering new business.

It was reported that premiums have generally increased in the October 2019 and April 2020 renewal rounds. There are no definitive figures available yet, but some insurers and brokers are reporting average increases of around 15 – 20% for the minimum level of cover required by the SRA minimum terms and conditions (MTCs)ii. There are also higher rate rises for any additional cover beyond that required by the MTC. However, this is not a uniform position and may depend to some degree on the perception and actuarial modelling of risk, as well as on the quality of application submitted. This emphasizes the need for firms to approach specialist brokers and to ensure that their application is well prepared and attuned to the needs of the insurers in assessing the risk they might pose. Advice is available in a Law Society practice note on obtaining PIIiii.

It was reported that some firms did manage to maintain cover at a similar cost in the October and April renewal rounds, but some firms struggled to find insurance at all. This may have

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included higher risk firms and firms whose previous insurer has left the market.

It is reported that as there is now reduced capacity, some insurers are concentrating on existing clients. It can be more difficult for insurers to get complete risk information when the previous insurer is no longer in the market, and this provides a further disincentive to look at new clients. Ultimately, only around 20 firms notified the SRA that they were unable to secure insurance in the April 2020 renewal round, the second biggest renewal point in the year.

What has yet to be assessed is the impact of the Covid-19 pandemic on what was already a difficult market. Insurers are expecting that they will receive increased claims across their business resulting from Covid-19, such as for business interruption. This may further reduce capacity within the insurers’ books, including for PII. The historical pattern is an increase in professional liability claims after every economic downturn. This is beginning to feed into insurers’ risk appetite and pricing. Insurers are also concerned about new risks arising, for example from increased remote working on IT security and the supervision of work. Some insurers are beginning to include additional questions on applications about how firms are managing Covid-19 related risks.

Insurers have also reported that they are concerned too about the financial viability of firms in the current economic environment. This includes the ability of firms to pay their premiums, and also, any excess on their policies. Given that insurers must provide offer run-off cover even when a firm does not pay the premium, this is of particular concern to insurers and will undoubtedly impact on the risk profiles for certain firms.

The SRA report indicates that there have been specific practical issues from Covid-19 preventing some firms from renewing their insurance in good time e.g. delay in processing a government loan or if a partner is ill and unable to access the necessary information to make an application. The SRA have taken steps to help in the short-term by introducing greater flexibility for insurers and firms to agree a temporary extension, than has traditionally been allowed.

THE SRA Board will receive a further analysis of the impact of Covid-19 at its next Board meeting.

Post 6 year run off One good piece of news was that the SRA board announced that it would extend the use of the Solicitors Indemnity Fund (SIF) to provide post six-year run off cover for firms for another 12 months until 30 September 2021. However, the SRA rejected the Law Society’s request that post 6-year runoff cover be extended for a period of three years.

The solicitors’ PII market operates on a claims made basis which means that former partners of firms that have closed

must have cover in place on the date the claim was made, not the date the work was carried out.

The SRA Board publish minutes of the public parts of their meetingsiv and the paper entitled, ‘Professional Indemnity Insurance – post six-year run-off cover’v was also in the public domain.

The rationale for the original decision to close the scheme made in 2012 and again reviewed in 2016 was based on the following, that an extension did not align with the SRA’s policy position that the appropriate level of mandatory run off cover should be six years and there was uncertainty at that time about whether there would be sufficient surplus in the SIF to finance an extension.

The original assumptions were that some, but not all firms would be able to obtain additional cover on the open market and the regulator seemingly felt comfortable with the view that some retired solicitors could face bankruptcy over claims made, for which they could not get insurance and some consumers would be denied settlement for a claim because the retired solicitors’ funds had been exhausted. Similarly, although the SRA could at any time call on the profession for monies to top up the fund, it seemed disinclined to do so but has not explained why.

As indicated above, the PII market has hardened and contracted significantly since the Board made its decision in 2016, particularly so in the last 18 months. Covid-19 is currently having a further negative impact on the insurance market generally, the full extent of which is not yet known.

The SRA Board concluded that it was too early to estimate what impact Covid-19 might have on the types of post six-year run off claims that might come through or on the ability of solicitors / former partners within firms to cover civil liabilities themselves in the absence of insurance.

At the time that the Board decided not to extend SIF’s post six year run off cover, in 2016, it was considered likely that a range of products would be available to provide cover when SIF closed, although it was acknowledged that this would not be available to all partners in closed firms. At the time, the Board had understood that ninety per cent of all claims relating to work done by closed firms were made within the first six years. Given the facts before it, the SRA accepted that its decision would not offer 100% protection. It had not anticipated that at this point there would be no policy available whatsoever although some insurers had expressed an interest in offering a policy they had yet to do so.

It was agreed at a previous meeting that the Solicitors Indemnity Fund Limited (SIFL) should commission some actuarial analysis of the potential exposure to the SIF arising from post six year run off claims for a one, two and three-year period from 30 September 2020 and whether or not Covid-19 and the subsequent economic fall-out would likely impact on claims and liabilities. The documentation setting out the cost of extending the scheme for three years was not in the public domain. The Board decided that the cost of extending for 3 years was too great but that an extension of one year would provide a proportionate balance of guaranteed consumer protection and cost.

This would allow the SRA time to gather data and consult the insurers directly on the potential impacts of Covid-19 and any related potential unforeseen impacts on consumers in relation

Although the extension has been more limited than hoped, it does seem the Board is now seized of the issues and should the same state of affairs remain this time next year, it is possible that a further extension would be considered although the SRA have not yet committed to this.

Wills and Probate The government have been in discussions with the Law Society to try to find proportionate solutions to the difficulties of meeting sections 9 and 15 of the Wills Act 1837 (Wills Act) which requires two witnesses signatures for a will to be valid in England and Wales.

Northamptonshire Law Society

Firms can only purchase run off cover for six years after the date they close, and the threat of the removal of post 6 year run off cover has been of increasing concern for the former partners (and in some cases former employees) of firms that closed without a successor practice.

to post six-year run-off claims. The Board also considered participating in a joint SRA and Law Society working group to engage with the insurance market to drive momentum for developing a more generally accessible post six-year run off product.

The Law Society is lobbying to ensure that adequate safeguards are in place to guard against abuse, but recommend that legislation be introduced to give judges dispensing powers to give effect to a testator’s intentions where the formalities of the Wills Act are not met.

The government are reported to be considering introducing reforms, including through the Electronic Communications Act 2000, to allow remote witnessing, but this could be some time away. Although restrictions are gradually being eased, there will be both solicitors and clients for whom it may be some time before any such easing impacts on them.

For those of you who have not seen it, there is a helpful article on Wills in a time of social distancing and self-isolation

by Lesley King and Roman Kubiakvi setting out possible solutions to the current difficulties. i https://www.sra.org.uk/globalassets/documents/sra/board-meetings/2020/ annex-1---pii-market.pdf?version=49f286 ii 2 Lockton’s renewal report: https://www.legalfutures.co.uk/blog/reflectingon -the-spring-pii-renewal-season iii https://www.lawsociety.org.uk/support-services/risk-compliance/ pii/?ctype=practice+note iv https://www.sra.org.uk/globalassets/documents/sra/board-meetings/2020/ minutes-of-sra-board-meeting---22-june-2020.pdf?version=49f59e v https://www.sra.org.uk/globalassets/documents/sra/board-meetings/2020/

sraboard-item---pii-run-off-cover.pdf?version=49f286

vi https://communities.lawsociety.org.uk/private-client-section-commentary/ wills-in-a-time-of-social-distancing-and-self-isolation/6000898.article

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

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We’re half way through 2020 and what a year it has been so far. It’s fair to say it’s not necessarily the year we had all planned for when considering our resolutions or business ambitions back in January.

At the end of March, we saw unprecedented restrictions come into force – essentially halting many business activities that could not be conducted safely, compliantly or from home. For property lawyers, while progress on transactions could happen behind the scenes for most, the inability of estate agents to actively market properties at one end of the chain, and for removers to support the physical moving process at the other, meant many transactions were in a state of limbo until the blockages at either end of the funnel could be removed.

As a business, Landmark Information Group worked with two other leading organisations that help facilitate a property transaction, to lobby the Government on how to safely ‘kickstart’ the housing market.

A letter was written to the Secretary of State for Housing, Communities and Local Government, Robert Jenrick, to detail their view of how government could quickly get the sector operating again and critically, bridge the gap until momentum gathers.

Working collectively to make the case to government, the aim was to support consumers while also protecting jobs across the property industry.

Northamptonshire Law Society

2020 Conveyancing: Adapting to the New Normal on average spend £12 billion per annum on furnishings, improvements and appliances supporting small businesses and the high street.

The group’s proposals included getting the home moving market working quickly by defining a ‘safe move’ and ensuring that the sector was one of the first to reopen under the phasing out of ‘stay at home’ measures.

In addition, ensuring that those who were part way through a transaction are protected by lenders continuing, where feasible, to honour mortgage offers. Providing a fiscal stimulus for the market, enabling a speedier recovery, as well as ensuring the Coronavirus Job Retention Scheme was extended for businesses beyond the restart of the market, to allow firms to rebuild income.

Since writing to the Secretary of State shortly after the housing market was paused, the group held a number of virtual meetings with policymakers across government.

Businesses across the conveyancing industry face particular challenges from Covid-19. The time it takes for the pipeline of transactions to be rebuilt, and the receipt of income on completion by many in the sector mean the right policy decisions by government are essential to support the market’s overall recovery.

After all, the market has the potential to act as an important catalyst for the wider economic recovery: home movers

On 13 May, the Government gave the industry the go ahead to restart England’s property market, which includes a Safe Working Charter plan. In doing so, over 380,000 properties that were ‘sold subject to contract’ but unable to complete were effectively released, as well as providing an important fiscal stimulus for the overall economy.

With the market reopening, we’re seeing a lot of movement once again, with more properties being listed for sale once again. A quick search of Rightmove at the time of writing shows the listing of 1,166 properties in the last fortnight alone across Northamptonshire.

Now, we are working in an evolving ‘new normal’ with conveyancers either continuing to work from home, or in socially-distanced safe working environments that adhere to the latest guidance. The flexibility provided by online working and cloud-based software has come into its own this year, and many businesses will be looking at ways of extending this further to provide additional service enhancements.

“...On 13 May, the Government gave the industry the go We therefore await the next six months ahead to restart England’s property market, which includes of the year to see what they will bring; one thing is for sure, property transa Safe Working Charter plan. In doing so, over 380,000 actions will continue and we remain at properties that were ‘sold subject to contract’ but unable your side to support you, your business to complete were effectively released, as well as providing and your clients. an important fiscal stimulus for the overall economy.....” www.landmark.co.uk www.northamptonshirelawsociety.co.uk

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Northamptonshire Law Society

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Northamptonshire Law Society

Obituary:

Bruce Hodson 5th October 1939 - 21st May 2020 Bruce Hodson was my great uncle, who grew up in Raunds and spent his entire career working as a solicitor in Northamptonshire. As a junior solicitor, he worked with Vincent Sykes (now VSH Law) and then Wilson Browne before branching off on his own in 1974.

For the rest of the 1970s, Bruce expanded his practice, going into partnership and at one point, having offices in Raunds, Chatteris, March and Cambridge.

Around the turn of the next decade, Uncle Bruce became a sole practitioner of Hodson Margetts operating out of the Raunds and Cambridge offices, before selling the Cambridge business in around 1982.

From then on, Uncle Bruce worked as a general practitioner from his office in Raunds until his retirement in 2005. For most of that time, he worked in cooperation with Martin Eaton and John Few of Eaton and Few, based in St Ives, where they worked together on a number of cases with a view to helping each other to provide a good service to clients.

Whilst he worked as a general practitioner, Uncle Bruce’s workload was varied. He had some enviable commercial clients, for whom he carried out a wide range of demanding work, and he also worked for private clients on many unique and highly interesting matters.

Uncle Bruce had a letter pinned to the wall in the reception area of his office that he had written to the Law Society

Gazette and which was published in the Letters to the Editor section in 2003. I looked up the letter entitled ‘Don’t pander’ on the Gazette website, and was struck by how its message is as relevant today, as it was then.

may give the impression to clients who saw him, and who may have discussed sensitive matters with him in confidence, that he might be gossiping and thereby risk compromising his respected position in the town.

This memory triggered many fond memories of my time working with him, including watching much of a famous Ashes cricket series whilst I should have been dead filing! I really got to know my uncle in the Summer of 2003 when I did some work with him during school holidays. I was a 17-year-old student looking to embark on a law degree and, I hoped, a career as a solicitor, and he was a solicitor coming towards the end of his career.

Over the years since his retirement, Uncle Bruce enjoyed hearing about how my career was developing and remained interested in the law and how the working environment was changing.

I learned many valuable lessons from him during those discussions (including, for example, how people should not be motivated by money when seeking a career in law!). It is safe to say that his legacy will continue in my career, and I will continue to pass on those lessons to junior and future solicitors for years to come.

Mr Hodson, as I was instructed to call him whilst in the office, was ‘old school’.

There was no PC at his desk, no case management software and dictations were recorded on to tapes. I would say that, given he had worked as a sole practitioner for such a long time, I was, in fact, looking through a window into a more historic method of practice; an era which has become extinct with the fast paced requirements of today.

He used to bring his dog to the office every day, which he informed me helped put anxious clients at ease, and this I felt, was a chink in his armour as he could appear stern in the office. I realised after he retired that his sternness was a façade.

Uncle Bruce was a private man who took his position of trust seriously.

He informed me that he would not spend time in local pubs as it

Uncle Bruce was renowned by his peers for being highly conscientious and a person of great integrity. He passed away on May 21st after contracting Covid -19 whilst recovering in hospital after a fall. He will be greatly missed by his family and friends.

Daniel Billson Daniel Billson, nephew of the late Bruce Hodson and a senior associate at Prettys Solicitors LLP Daniel is a keen sportsman and in his spare time enjoys playing golf, football and snooker. He also enjoys walking the Suffolk countryside with his family.

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Northamptonshire Law Society

Navigating the evolving landscape of Professional Indemnity Insurance

by Brian Boehmer

To navigate the challenges of a hardening insurance market, law firms should now start prioritising the preparation of a high-quality Professional Indemnity Insurance (PII) submission ahead of the coming renewal period.

The insurance market has been awash with capital, leading to increased competition for business and a subsequent suppression of the rates insurers could charge. This has resulted in unsustainably low premiums compared to the claim payments being made by insurers, but sadly times are changing.

Claims activity has been the main catalyst for the significantly changing market conditions that we are experiencing. While frequency of claims has remained fairly consistent, severity of claims (the total value of losses experienced) has reached unprecedented levels.

We believe that the recent spring renewal period showed us what to expect going into August and September. Analysis of insight and trends from Lockton’s portfolio indicates increased premiums within all layers but especially the working layer (the excess layer above your compulsory Insurance limit) where there is a lack of insurer options. With many primary insurers reluctant to offer longterm policy periods and those that did offer extended policies tended to apply an increase for the additional periods.

It is important to highlight, that the Insurance market conditions were hardening well before the Covid-19 outbreak. We believe this process is now likely to accelerate due to the pandemic, leading to a further hardening market.

While the sourcing of coverage may become more difficult for law firms, the legal profession in England and Wales is fortunately not experiencing reduced coverage as practices are protected by the Solicitors Regulation Authority’s Minimum Terms and Conditions wording.

What to expect in the coming months We expect underwriters to adopt an even greater level of caution when they review enquiries in the forthcoming renewal season.

Peer reviews will be conducted as standard, certainly when insurers are assessing new enquiries and regardless of the size of a practice and the proposed premium to be charged. More questions, including those related to Covid-19, will be posed and responses will therefore need to be reviewed by at least one other underwriter. This means the process of obtaining terms may take longer, especially considering most insurers will be working remotely.

Some insurers have already released early question sets relating to Covid-19, while others are developing supplementary questionnaires. We expect all of these to focus on three key areas: People, Finances and Risk, some of which will naturally interlink.

should not be surprised if they fall into the Extended Policy Period.

The insurance market is still active, but it is becoming much more selective. Underwriters cannot return a profit for their organisation if they do not write any business, but they will need greater convincing and will want to align their company’s capital with wellrun firms. At Lockton, it is our job to provide them with the reasons to do so, but legal practices cannot be blasé and we encourage them to approach renewal in the right way.

We believe taking these three key steps will help practices navigate the challenges ahead: 1. Start early – While we would expect insurers to prioritise their existing clients, it is still important that you prepare your presentation earlier than in previous years. We recommend having your presentation prepared at least two months in advance of your renewal date as the process will generally take longer.

2.

Prepare a quality presentation for insurers’ consideration – this will help you stand out from the crowd. Make sure all the questions in the proposal form are sufficiently answered. Time will be limited so expect insurers to make a quick decision and potentially not offer any terms if your presentation is missing key information or if it is poorly presented.

3. Select your representative carefully and do not approach multiple agents as you will actually be doing your professional peers – and yourself - a disservice.

You may wish to consider the following key elements when selecting your representative: •

What is their market reach - which insurers can the broker access DIRECTLY for you? Speaking directly to an insurer will help speed up the process and means your key message does not get diluted or misinterpreted.

• What is the experience and size of their team?

• What is the extent of their service proposition?

• What is their claims infrastructure? While no one wants to have claims, you should know if your representative has the resources to support you when needed.

Once you have selected your representative, ensure you establish an action plan with your broker which covers who they will be approaching directly and the anticipated timeline for responses.

To find out how Lockton can assist you with your forthcoming renewal, please do contact me or one of the Lockton Solicitors team. We would be delighted to hear from you.

The Lockton Solicitors team who will be very happy to help.

Navigating the challenges Although the insurance market has adapted well to the ‘new normal’, some things are naturally taking a little longer than they would have done previously. As mentioned, a combination of the hardening market, increased peer reviews and greater caution from underwriters has made it more difficult to obtain insurance terms. This means those firms that are traditionally ‘last minute shoppers’ and which provide minimum information to insurers

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Brian Boehmer, Partner Lockton Companies LLP T: 0207 933 2083 E: brian.boehmer@uk.lockton.com

Why not seek a second opinion.

Northamptonshire Law Society

Brassed off with your broker?

We provide: •

• • •

More choice - Through our extensive and direct access to leading Solicitors Market Insurers. Plus options that are not available through any other representative

An honest approach - We will advise if change is not right for your practice Swift and efficient process - We will not keep you waiting

More than a transactional service - Our team are dedicated to servicing the Legal Profession and will look to provide support and guidance to your practice all year round

Get in touch with a member of the Lockton Solicitors team, to explore your options for your PII Renewal.

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Playing our clients’ tune since 1966.

Lockton Companies LLP. Authorised and regulated by the Financial Conduct Authority.

A Lloyd’s broker. Registered in England & Wales at The St Botolph Building, 138 Houndsditch, London, EC3A 7AG. Company No. OC353198.

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Northamptonshire Law Society

Golf with the Law Society Looking for golfing opportunities beyond my own club some years ago I came across The Law Society Golf Club – sometimes described as The Law Society’s best kept secret !

by John Slater, Captain, LSGC

Not sure whether this would be my cup of tea, I noted that their year began with a Winter lunch at Lords. What a good opportunity to test the water, I thought, and an opportunity to visit the hallowed venue of the Lords cricket ground. A couple of hours over lunch was a much less risky introduction than four hours plus with strangers on the golf course. If I did not fit in, then I would never be seen again but if I enjoyed it I could then venture to play in one of their many golfing events.

Well, I was welcomed royally and, some ten years later, I am so glad I plucked up the courage to attend that first lunch.

The LSGC had its first meeting in Chancery Lane in 1962 when the club was established with the vision of bringing together solicitors from across England and Wales in friendship and friendly golfing competition. Over the years it has grown to provide a full list of fixtures (including our own internal competitions and matches against other societies) at some of the most prestigious golf courses in the land and beyond.

It is a treat to stand on the first tee at Royal Liverpool Golf Club and think that Rory was here in 2014 when he won the Open Championship or at other similarly wonderful golf clubs. In recent times we have played at Royal Lytham, Brancaster, Saunton, Ganton, Moortown, Hankley Common, Royal Cinque Ports, Rye, Trevose and Hillside to name but a few.

We have also engaged in this friendly rivalry further afield in Europe and as far as Canada and Bermuda. The Paris Bar has entertained us at Chantilly, the Belgians in Liege, the Germans in the very scenic Bavarian mountains (see picture of our teams ready for action), the Irish at Enniscrone, the Bermudans at Mid Ocean GC and many other first class venues.

RHODA THOMAS HAS WORKED WITH IN THE LEGAL FINANCE SECTOR FOR MORE THAN 20 YEARS. • WORKING WITH SMALL AND LARGE FIRMS • TRAINING WITH INSTITUTE OF LEGAL AND FINANCIAL MANAGEMENT • COFA TRAINING We can help you with all of your legal bookkeeping and compliance requirements. Either at your office or remotely.

We can help you with problem accounts and incomplete records.

Firms with SRA audit issues.

Because of the Coronavirus crisis, things are on hold at the moment but we hope to be back in action soon. If I have whetted your appetite, check out our website at www.lawsocietygc.co.uk and do get in touch.

There is opportunity to play in as many or few events as you wish.

You will be warmly welcomed – male or female, whatever your age or handicap.

14

01327 828692 mail@rhodathomasbookkeeping.co.uk

www.northamptonshirelawsociety.co.uk Rhoda Thomas Book keeping.indd 1

28/02/2020 11:36

10 Facts about a Live-in Care Package from Able Community Care 1. Able Community Care has been providing Live-in Care Support for 40 years.

2. The service is available throughout mainland UK and The Channel Islands.

3. We have enabled thousands of older and disabled people to remain living in their home of choice, their own.

4. All potential, Live-in Carers who wish to work through Able Community Care, must have a minimum of one year’s professional experience before we consider their application.

5. Able Community Care writes for all references and telephone checks the validity of each reference received.

6. All Carers working through Able Community Care have an in-date DBS. 7. Live-in Carers update their training on an annual basis.

8. We also offer Home from Hospital Support, Holiday Care Companions and Respite Care.

(Brochures are available) 9. Live-Care Packages from Able Community Care are reliable, praised and financially prudent.

10. Able Community Care is a family firm.

This is our office on the outskirts of Norwich.

No Fault Divorce to be Enshrined in Law

Northamptonshire Law Society

Legislation, now awaiting Royal Assent, for “no fault” divorce has recently been backed by the Commons with a significant majority. The Bill, which when passed will be known as the Divorce, Dissolution and Separation Act 20201 removes the need to find fault in the marriage and allows a statement of “irretrievable breakdown” to suffice. The latter requires currently establishment of one or more of five “facts” – three relate to conduct (adultery, unreasonable behaviour or desertion and two relate to the period of separation; two years if both spouses consent, five years if not) in order to start divorce proceedings. This legislation follows a long campaign by Resolution and other groups, to reform outdated laws (inter alia the Matrimonial Causes Act 1953 and the Civil Partnership Act 2004), which although hotly debated and eruditely analysed2 will help to reduce conflict between separating couples.

The current process incentivises one of the spouses to make allegations about the other to avoid waiting for the mandatory two-year period of separation. This can result in unnecessary conflict, discord and acrimony, which may involve the children of the marriage and damage their chances in life3. The new legislation removes the needs to provide supporting evidence of one or more of the above conduct or separation facts with a statement of irretrievable breakdown. This legislation also removes the ability to contest the divorce.

There are many genuine circumstances and reasons for an irretrievable breakdown to occur between two people and this may on occasion relate to the biological identity of a child with respect to paternity. On occasion of course, fabricated accusations of adultery may weaponise the biological identity of the children, and under current law, this might be used as a tactic to accelerate the divorce process. For example, there may be the accusation that the

16

man is not the father of the child or that he has been unfaithful and fathered a child outside of the marriage.

Both of course relate to the matter of trust, which can easy easily be assumed or earned, but when lost, is impossible to regain – once the spectre of paternity has been raised, it is impossible to reverse and constantly raises its head at a time when the best interests of the child should be foremost. The debate in the Lords was fascinating4.

Fortunately, the availability of DNA testing for paternity (or other biological relationship such as siblingship) is one of the few areas in divorce proceedings where unequivocal evidence can be obtained to support the case. If the parentage of a child is at issue, then a DNA test becomes a vital piece of information to help alleviate either genuine or vexatious claims and minimise any harm to children from the break-up, whether this is under either the current or the new legislation.

Indeed, a DNA test can only be to the benefit

of children, who have a fundamental right to be sure of the identity of their biological father, irrespective of circumstances.

Any DNA test should be conducted by a Ministry of Justice accredited provider (such as ourselves) and if you have such a case, please contact us, we are highly experienced and would be happy to help! legislation allows for the child to obtain information on their biological parentage. We will discuss these points in the next article and by then, we will hopefully have the judgement on TT vs YY. About the author: Neil Sullivan, BSc, MBA (DIC), LLM, PhD is General Manager, of Complement Genomics Ltd (trading as dadcheck®gold). The latter is a company accredited by the Ministry of Justice as a body that may carry out parentage tests directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969”.

Please see: http://www.dadcheckgold.com.

Tel: 0191 543 6334, e-mail sales@dadcheckgold.

1, https://publications.parliament.uk/pa/bills/ cbill/58-01/0125/20125.pdf 2, https://services.parliament.uk/Bills/2019-21/ divorcedissolutionandseparation/documents.html and the Impact statement from the Ministry of Justice https://publications.parliament.uk/pa/bills/ cbill/58-01/0125/Impact%20Assessment%20 -%20Divorce%20Bill.pdf paragraphs 67-69 inclusive.

3, https://acamh.onlinelibrary.wiley.com/doi/ epdf/10.1111/jcpp.12893 4, https://www.theyworkforyou.com/lords/?id=202003-17a.1390.2

www.northamptonshirelawsociety.co.uk Untitled-3 1

23/02/2016 16:32

The Isle of Wight Donkey Sanctuary The Isle of Wight Donkey Sanctuary is a small, independent sanctuary which is the forever home for 95 donkeys and a small group of Shetland ponies. All of the animals are rescued, and have come to the sanctuary because of the adverse circumstances that they faced. Some came here because their owners passed away or were taken ill, some lost their homes and their grazing and some were just unwanted by families who thought that owning a donkey was a ‘good idea’. The donkeys are predominantly British and the sanctuary takes great pride in the care and welfare that these lovely donkeys deserve and receive.

The donkeys lead an active life whilst they are with us on the island. They interact with people in residential homes, with children in special schools and with representatives from local charities, such as the Stroke Association; for people in these groups the donkeys provide a sensory experience that brings joy and happiness to their lives.

Much of the sanctuary’s work takes place because of the generosity of people who support our aims and ethos.

Those people believe in animal welfare, they believe in the small, independent sanctuaries such as ours rather than large corporate charities and they believe that animals have the right to a decent life where they are loved and respected. These people kindly leave gifts in their wills to the sanctuary, and each gift is remembered on site by a plaque thanking the person for their act of giving and their kindness. These gifts have helped the sanctuary build barns, shelters and outdoor paddocks for the donkeys.

“...All of the animals are rescued, and have come to the sanctuary because of the adverse circumstances that they faced...”

Families often come to see the facility that their loved one helped to fund and leave with a smile on their face, knowing that the gift from a will has helped give these donkeys a better future, whilst the donkeys in turn have helped bring joy to another person’s life. This must be a wonderful way to remember a loved one, knowing that their gift has been invaluable.

Please support donkeys-and people-by leaving a gift in a will to the IOW Donkey Sanctuary

Northamptonshire Law Society

Give a gift in your Will today, and make a lasting difference to vulnerable children and their families

Spurgeons is a Christian Children’s Charity rooted in Northamptonshire, working nationwide.

We believe that every child deserves a childhood and an equal chance to fulfil their dreams. No child’s current situation should dictate their future and we are committed to helping them to be all that they can be.

For over 150 years we have been blessed to receive bequests which have allowed us to continue working with children and young people who need us most. Including Spurgeons in your Will helps us continue to give vulnerable children a better present and a more hopeful future.

74 Wellingborough Road, Rushden, Northants, NN10 9TY Tel: 01933 412412 Website: www.spurgeons.org

If our brain breaks down, we break down.

Let’s unite to accelerate the progress of brain research.

Leaving a gift in your will to Brain Research UK is a wonderful way to make a lasting difference to future generations by helping to accelerate research into neurological conditions. It will cost you nothing in your lifetime, but will help us to make a difference in years to come. Gifts both large and small help fund research to accelerate the progress of brain research.

We hope you’ll consider leaving a gift to Brain Research UK

www.brainresearchuk.org.uk BWB Charity Hub, 10 Queen Street Place, London EC4R 1BE 020 7404 9982 Registered Charity no. 1137560. A company limited by guarantee. Registered in England no. 7345516.

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www.northamptonshirelawsociety.co.uk

Growing appetite for charitable Will-writing

Why the surge in demand for Will-writing could be instrumental to the charity sector’s recovery

by Rob Cope

It’s hard to imagine life in the UK without access to emergency services like air ambulances and lifeguards, hospices and NHS charities, not to mention food and sanitation supplies for those living in isolation during lockdown. But the coronavirus has had a devastating impact on charities and that puts the future of such vital services in peril. Against this backdrop, charitable bequests have a critical role to play in the nation’s future.

In time of crisis, it is legacy donations – many of which were pledged years or even decades previously – that have the potential to sustain charities and frontline services over the long-term. And, with the Law Society, solicitors and charities all reporting a marked increase in demand for Wills, this could yet be a crucial silver lining, helping to reduce intestacy and encourage the public to consider how they wish to benefit family, friends and good causes once they are gone.

Just the other day a fundraiser told me that his charity – a small organisation – had taken more Will-writing enquiries during one week in April than over the past twenty years. One well-known charity reported an 80% increase in web traffic to the charity’s legacy giving pages in the first week of lockdown and twice as many people are currently visiting Remember A Charity’s ‘Making A Will’ page as would do normally.

As is so often the case in times of crisis, the global pandemic has brought people together, motivating them to think about what really matters to them and what they can do to help. The public’s appetite for charitable giving and helping communities around them seems to be at a record high.

But, could this rise in demand for charitable Will-writing really help charities recover from such hefty losses?

When you consider that, although 40% of the over 40s2 say they would be happy to leave a gift in their Will but that, currently, only around 6% of people that die do so, there is a massive disconnect here. Legacy donations raise over £3 billion for charities in this country annually – a phenomenal sum. So, even just a small increase in the proportion of people choosing to give in this way could make a considerable difference to charities’ income.

Importance of Will-writing advice

Critical income shortage

Solicitors and Will-writers have a critical role in ensuring that every client understands that they have the option of donating from their Will, after taking care of their family and friends. These conversations really help to break down myths that a legacy donation doesn’t have to be large sum – every gift matters - and that it can include absolutely any charity or community organisation, as well as their loved ones.

A doubled-edged sword for charities, the coronavirus has thrust the UK charity sector into a heavy funding shortfall, while bringing about a spike in demand for services. For weeks on end, charities’ ability to fundraise has been hugely compromised, with sector studies projecting income losses well over £4 billion1.

Studies show that even the simplest reference by solicitors to the option of including a donation can make a huge difference to the number of people that choose to leave a bequest. So, we’re asking legal advisers across the country to raise the topic with Will-writing clients and join our network of campaign supporters and web listing of legal advisers for legacy giving.

While the public’s gifts in Wills may be a saving grace, they are by no means immune. Legal advisers will recognise the difficulty in witnessing Wills and completing estates during lockdown, meaning that very little funding from bequests has made it through to intended charities’ accounts, stalling cash flow.

If charities and the legal sector can build on this uplift in demand for Will-writing, ensuring every conversation end of life planning includes a reference to the opportunity of leaving a charitable bequest3, I believe that this could be a pivotal opportunity to secure the future of vital services, while ensuring the public’s final wishes are met.

Charitable estates are likely to have lost value with the stocks, shares and property markets all taking a heavy hit, but charities recognise that supporters’ bequests will filter through down the line. We just have to hope that donations can be processed as swiftly as possible, minimising disruption to frontline services.

Find out more about becoming a Campaign

There’s no doubt about it, it’s been an incredibly tough period for charities. But, reports of a peak interest in charitable Wills – the largest source of voluntary income – brings a beacon of hope that has never been more needed.

1 Institute of Fundraising, Charity Finance Group, NCVO (2020) 2 One Poll (2019) 3 Behavioural Insights Team (2013)

Supporter at www.rememberacharity.org.uk.

Rob is the director of Remember A Charity.

He has overseen a growing and vibrant consortium over the past five years, developing partnerships with government and the private sector. He was previously deputy director of marketing and communications at The Prince’s Trust, including the youth charity’s 30th birthday appeal. Rob is a board director of Relief International and a keen runner.

www.northamptonshirelawsociety.co.uk

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Northamptonshire Law Society

EXPERT ASSISTIVE TECHNOLOGY AND DISABILITY REPORTS FOR:

Personal Injury Clinical Negligence Industrial Injury

Contact us today to see how leaving a gift in your Will can help us to enhance the healthcare of future generations.

Donations and legacies enable us to offer the ‘extras’ that make a real difference to our patients.

Martyn Slyper IT DISABLILTY EXPERTS T: 020 8386 0379 M: 07956 216 254 E: enquiries@it-disability-experts.co.uk www.it-disability-experts.co.uk

ITDE Quarter Page.indd 1

Northamptonshire Health Charity Springfield, Cliftonville, Northampton General Hospital, NN1 5BE  01604 626927 |  greenheart@nhcf.co.uk  www.nhcfgreenheart.co.uk Registered charity no: 1165702

01/06/2020 19:27

PAIN RELIEF FOUNDATION RELIEVING CHRONIC PAIN THROUGH RESEARCH

CHRONIC PAIN - THE SILENT EPIDEMIC › 1 in 10 people in the UK suffer from chronic pain – which does not go away. › Over half of sufferers endure chronic pain all day, every day of their lives. › Many sufferers say they can’t remember what it is like not to be in pain. › Thousands of sufferers lose their jobs because the pain is so bad that they cannot work. › Pain stops sufferers enjoying walking, shopping, sleeping; even playing with their children.

Chronic Pain affects people of all walks of life, 43% of the population suffer from chronic pain.

Research costs money, and there is always an urgent need to provide more funds for more research.

The Pain Relief Foundation DOES NOT receive funding from the NHS or any other Government body.

Instead, our vital work depends entirely on donations and the generosity of people like you.

PLEASE MAKE A DONATION TODAY, Or leave a Legacy in your will.

For help and advice, contact us.

Pain Relief Foundation, Clinical Sciences Centre, University Hospital Aintree, Liverpool L9 7AL Telephone: 0151 529 5820 E-mail: lorraine.roberts@painrelieffoundation.org.uk 20

www.northamptonshirelawsociety.co.uk

www.painrelieffoundation.org.uk Registered Charity No. 1156227

Northamptonshire Law Society

G N I LIV S D N E G E L D E T N WA

G • DIN N

• G O VER

Call 0300 3045 999

N

O

W

Give the gift of a lifetime, and save lives, by including a donation in your Will. E RECEIVE N

M ENT FU

Email legacies@theairambulanceservice.org.uk www.northamptonshirelawsociety.co.uk 21 Part of The Air Ambulance Service. Registered in England and Wales as a limited company by guarantee. Registered Company No. 4845905. Registered Charity No. 1098874.

Paul v The Royal Wolverhampton NHS Trust

by Phil Barnes

Shoosmiths Successfully Appeal Strike Out of Secondary Victim Claims The Honourable Mr Justice Chamberlain has today overturned Master Cook’s decision on 4 November 2019 to strike out the secondary victim claims brought by the children of Mr Paul, bringing some clarity on the application of the proximity test to secondary victim claims where there is a gap in time between the breach of duty, and the subsequent manifestation of the damage or injury caused by the negligence.

The Claim On 9 November 2012 Mr Paul was admitted to New Cross Hospital in Wolverhampton after complaining of chest and jaw pain. Mr Paul had Type II diabetes and was given treatment for acute coronary syndrome and save for echocardiography no cardiac investigations were performed. In September 2013 Mr Paul was referred to a cardiologist and was seen on 9 January 2014. An elective coronary angiography was recommended.

On 26 January 2014 some 14 months after being admitted to hospital and before the angiography was performed, Mr Paul (aged 44 at this time) was out shopping with his daughters aged 9 and 12 when he suffered a heart attack causing him to collapse, fall backwards and strike his head on the floor. His daughters witnessed the collapse and the unsuccessful cardio pulmonary resuscitation by the paramedics.

Mr Paul’s heart attack was caused by ischaemic heart disease and occlusive coronary artery atherosclerosis. If a coronary angiography had been performed on Mr Paul it would have revealed significant coronary artery disease which could and would have been successfully treated by coronary revascularisation. These actions would have avoided the heart attack.

A claim in negligence is being pursued against the defendant hospital (Defendant) on behalf Mr Paul’s estate under the Law Reform (Miscellaneous Provisions) Act 1934, and on behalf of Mr Paul’s dependants under the Fatal Accidents Act 1976. Secondary victim claims were also brought on behalf of the children (referred to as the Claimants in this article) for psychiatric injuries suffered from witnessing the collapse and death of their father.

endangerment of the primary victim. In this case Mr Paul was the primary victim and his children the secondary victims.

A secondary victim will only recover damages for psychiatric injury if they can establish the control mechanisms, which are: • the psychiatric injury was reasonably foreseeable; • there is a close tie of love and affection to the primary victim; •

they were close in time andspace to the incident or to its immediate aftermath, referred to as proximity in time and space;

•

the incident was shocking ie a sudden and direct appreciation by sight or sound of a horrifying event. The ingredients necessary to establish the event was suitably shocking are that it must be (a) exceptional, and (b) sudden and (c) horrifying. This will be judged by objective standards by reference to persons of ordinary susceptibility. In a hospital setting one must expect to see things that one may not like to see;

• witnessing the incident caused the psychiatric illness. The psychiatric illness also must be a recognisable one.

Some of these control mechanisms are notoriously complex and have not always been applied by the courts in a consistent way, making it difficult to assess whether a secondary victim claim is likely to be successful.

Strike out

Secondary victim claims

The Defendant represented by Browne Jacobson and Charles Bagot QC, applied to strike out the secondary victim claims on the basis that they failed the proximity test, ie they failed to establish they were in “close proximity in space and time to the relevant event or its immediate aftermath”.

Secondary victim claims are claims from someone who suffers psychiatric injury as a result of witnessing the injury or

The Defendant argued that the “relevant event” for the purposes of the proximity test was the alleged negligent omission

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www.northamptonshirelawsociety.co.uk

to arrange a coronary angiography and instead discharging Mr Paul on 12 November 2012, not Mr Paul’s collapse from heart attack some 14.5 months later. “Some damage to Mr Paul was occasioned to him on [the day he was discharged] by the failure to improve or stabilise his condition, or, at the very least, to prevent him worsening” This meant that the heart attack was the later consequence of the infliction of damage and could not qualify as the relevant event. It also meant the Mr Paul’s children were absent from the “relevant event” and it would not have been considered a shocking event in law.

The Defendant relied on the approach taken in the case of Taylor v Somerset Health Authority (1993) (Somerset) which they asserted was expressly approved by the Court of Appeal case of Taylor v A Novo (UK) Ltd (2013).

In Taylor v Somerset, Mr Taylor suffered a heart attack at work, caused by the defendant’s negligent failure, many months before, to diagnose and treat his serious heart disease. He died shortly after being taken to hospital. Mr Taylor’s wife went to the hospital, where she was told of her husband’s death and identified his body. This occurred about an hour after her husband’s death. The question for the court was whether the wife’s involvement within about an hour after her husband’s death met the proximity test i.e., was it in close proximity in space and time to the relevant event or its immediate aftermath. The court held that that Mr Taylor’s death was the ‘final consequence of his progressively deteriorating heart condition which the health authority, by its negligence many months before, had failed to arrest. His death at work and the subsequent transference of his body to the hospital where the [wife] was informed what happened and where she saw the body did not constitute such an event’. The court were also of the opinion that even if the fatal heart attack could be considered an event to which the ‘immediate aftermath’ applied, the doctor’s communication to Mr Taylor’s wife of that fact would not come within the extension.

The Claimants represented by Phil Barnes, Head of Medical Negligence at Shoosmiths and Counsel Laura Johnson of 1 Chancery Lane Chambers, argued that there was no requirement to establish proximity between the negligence and the ‘relevant event’. The proximity required is between the secondary victim and the relevant event. In conventional accident claims such as a car accident there is usually no gap between the negligence and the ‘relevant event’ as the damage or injuries start on impact. But even in

accident claims it is ‘perfectly possible to imagine liability for nervous shock where a secondary victim witnessed the death or injury of a close family member caused by a collapse of scaffolding caused by its negligent erection some months earlier’.

In support of this argument the Claimants relied on the decision in North Glamorgan NHS Trust v Walters (2002). In this case the North Glamorgan NHS Trust negligently failed to diagnose that Mrs Walter’s baby was suffering from acute hepatitis. The negligence occurred on or around 17 June 1996 when the baby was noted to be jaundiced and admitted to hospital. The consequence of that negligence manifested itself some weeks later on 30 July 1996 when the baby had a seizure. Mrs Walters, who was sharing a hospital room with her baby, was wakened by her baby having the fit. She was then told, wrongly, that the baby had not suffered any serious damage as a result of the fit. The baby was later transferred to another hospital, where Mrs Walters learnt that her baby had suffered catastrophic brain damage. The baby died in her arms on the following day. The Court of Appeal took the seizure, which was the first clear manifestation of the breach of duty, as the starting point of the “event” and not the failure to diagnose the acute hepatitis, the breach of duty, which occurred some weeks before.

It was also argued by the Claimants that the case of Taylor v Somerset and Taylor v A Novo could be distinguished from this case and Walters. The Taylor cases did not decide that secondary victim claims can only arise where the breach of duty coincides with the injury.

On 4 November 2019 Master Cook struck out the nervous shock claims brought by the children of Mr Paul on the basis that the claims were bound to fail. He concluded that:

Northamptonshire Law Society

In Taylor v A Novo, Mrs Taylor sustained an injury to her head and foot at work when a fellow employee caused a stack of racking boards to fall on her. She seemed to be making a good recovery but 3 weeks later whilst at home and in front of her daughter, she collapsed and died as a result of an embolism. The embolism occurred as a result of the accident at work. This was a two-event case, the first event being the accident when the racking boards fell on Mrs Taylor causing injury and the second event the collapse and death that was witnessed by her daughter.

The Court held that the daughter witnessed a consequence of the accident, not the accident itself. The claim failed because the event witnessed by the daughter was not the event where the negligence took place and (importantly) the loss or damage occurred.

“To focus simply on the death of Mr Paul as being the first point at which the consequence of the Defendant’s negligence became apparent is not an approach which is supported by the authorities. To do so overlooks entirely that there must be a proximate connection between the initial negligence and the shocking event. It is this proximity in space and time that allowed Lord Oliver to impose the duty of care in Alcock and was described by Lord Dyson MR in Taylor v A Novo as “a necessary, but not sufficient, condition of legal proximity”. It is this proximity which has been found to exist in all successful secondary victim claims including Walters and it is the lack of such proximity which explains why the claims in cases such as Taylor v Somerset Health Authority and Taylor v A Novo failed.”

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Northamptonshire Law Society

“Mr Paul’s tragic death 14½ months after the negligent incident, in circumstances separated in space and time from the negligence, I must assume occurred in the hospital, cannot possibly be said to be the ‘relevant event’ for deciding the proximity required to establish liability under the established control mechanisms” Permission to appeal Master Cook’s decision was granted and an appeal hearing took place on 13 May 2020 before His Honourable Mr Justice Chamberlain.

The Appeal Mr Justice Chamberlain’s judgment has provided much welcomed clarification of what can count as a ‘relevant event’ for the purposes of the proximity test in secondary victim claims.

He held that “the Master was wrong to conclude that these claims are bound to fail on the facts pleaded. Here, unlike in Taylor v A. Novo, there was on the facts pleaded only one event: Mr Paul’s collapse from a heart attack on 26 January 2014.

On the facts pleaded, it was a sudden event, external to the secondary victims, and it led immediately or very rapidly to Mr Paul’s death. The event would have been horrifying to any close family member who witnessed it, and especially so to children of 12 and 9. The fact that the event occurred 14 ½ months after the negligent omission which caused it does not, in and of itself, preclude liability. Nor does the fact that it was not an “accident” in the ordinary sense of the word, but rather an event internal to the primary victim. In a case where such an event is the first occasion on which damage is caused, and therefore the first occasion on which it can be said that the cause of action is complete, Taylor v A. Novo does not preclude liability.

The following principles can be derived from the judgement: 1.

There is nothing in the previous authorities to suggest that the “relevant event” must be synchronous with the negligence that gives rise to it. In Alcock v Chief Constable of South Yorkshire Police (1991), Lord Oliver said that the “temporal propinquity” required was between the psychiatric injury and “the event caused by the defendant’s breach of duty to the primary victim” not the breach of duty itself.

2.

In cases where there is a separation in time between the negligence and the damage, the relevant “event” for the purposes of applying the proximity test is the point at which the damage first occurred, the point when the tort becomes actionable or complete.

3.

As to the time gap between the negligence and the damage, “there is nothing to suggest that there would be any reason to deny recovery simply because the accident or event occurred months or years after the negligence which caused it”.

Mr Justice Chamberlain also dismissed the Defendant’s arguments at the appeal that:

Phil Barnes Phil Barnes is the National Head of the 60 strong Shoosmiths Clinical Negligence and Personal Injury team. He has specialised in clinical negligence claims for over 20 years acting solely for claimants.

As an experienced litigator he has dealt with a wide range of complex and high value claims throughout his career, including neurological injury, cerebral palsy, child birth trauma, amputations, group actions involving intraocular lens implants, surgical errors, misdiagnosis and fatal claims. He has specialist interest in infection and sepsis cases.

He regularly appears as an advocate before Coroners and has been involved in a number of high profile inquests.

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4.

“It was not foreseeable that psychiatric injury would result from witnessing the consequences many months later, of a negligent omission in the clinical setting”. His reasoning being that “Lord Wilberforce in McLoughlin v O’Brien (1983) set out that, foreseeability in this context involves “a hypothetical person, looking with hindsight at an event which has occurred”. There is no dispute that it is foreseeable that a negligent failure to diagnose a heart condition could result in a heart attack. Heart attacks can happen in many ways.

Not all of them are sudden and shocking events, but some are. I would regard it as eminently foreseeable that a negligent failure to diagnose and treat a heart condition might result in a sudden and shocking event that, if witnessed by close family members, might occasion psychiatric damage”.

5.

There is a requirement that at the time of the event that the claimant must perceive not only injury to the primary victim but be aware that it was caused by the Defendant. He found no support for this proposition in the authorities and no justification for its requirement.

Comment These inconsistencies in the case law and the application of the principles and control mechanisms to the facts makes this a very complex area of the law to apply.

Recently, we have seen several strike-out applications involving secondary victim claims, possibly driven by the fact that if the defendant is successful, qualified one-way costs shifting is lost and they will recover their costs.

In my view, this judgment confirms that it is not suitable for these issues to be determined at strike out applications. There are a number of cases that have been stayed pending the outcome of this appeal and cases that have been struck out since Master Cook’s decision, which will no doubt be revisited.

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Will adoption of technology in the conveyancing sector speed up following the lockdown?

Although the conveyancing industry has been steadily evolving in terms of technology, it is still viewed by many as being “behind the curve” and not in step with the increasingly digital demands of today’s society. Earlier this year the Council for Licensed Conveyancers released a paper suggesting the conveyancing process will be completely digital by 2030, but it’s fair to say that the current homebuyer perception is of a slow and manual process with multiple stakeholders all requiring separate management, rather than of one integrated process.

Right now with many staff having been on furlough

has brought in more flexible procedures for identity

conveyancers have had to rely more on more on

and many of the search providers are offering services

and the necessity of working from our homes,

technology to fill the gaps. Can we expect this to

continue as business begins to get back to normal?

The benefits of technology New technology offers many advantages to the conveyancer.

Benefits include the completion of manual tasks within

a fraction of the time usually required, greater accuracy

and elimination of the need to repeatedly supply the same information, improved transparency and a compliant audit train. Technology can be used to automate the more routine tasks providing a greater level of accuracy.

For example, over recent years we have seen the automation of a number of conveyancing processes. It’s very easy to complete a digital AML check and the stamp duty (SDLT)

process has been fully-automated. These online services provide a speedy alternative to conveyancing teams,

reducing error and providing a full audit trail. This allows conveyancers more time to focus on the more complex and specialist areas of the conveyancing process.

Has anything changed during the lockdown?

There are a few positive examples of how further progress has been made in recent months. The Land Registry

now accepts (temporarily) virtual signing on deeds and

verification, estate agents are offering virtual viewings to support conveyancers during this lockdown.

There are also other technologies being explored such as live chat and chatbot options to provide great customer service at a distance.

What can we expect next?

Other developments supporting distanced (and more efficient) working are already in the pipeline… for

example, the Land Registry (along with the Law Society, Council for Licensed Conveyancers and Chartered

Institute of Legal Executives) is working hard to improve cryptographic and biometric checking of identity.

Only time will tell, but having got to grips with online

documents and checking, it could be an ideal time for the conveyancing industry to embrace the next steps to moving online. Recent technical developments to

support traditional conveyancing processes may be morereadily adopted in an industry that’s already changed its working practices in light of our current circumstances

Government Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency ( Cabinet paper published 7 May 2020 Update, 30 June 2020)

by Euan Temple

These issues will continue to emerge for many months and will not cease as lock- down eases Original Guidance and recommendations to continue to apply (this is the text of the updating note ) 1.

The Covid-19 emergency continues to require all of us to work together in the national interest to protect the health and safety of everyone in the United Kingdom, our vital public services including the NHS, jobs and our economy.

2. Therefore, the guidance and recommendations set out in the Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency published on 7 May 2020 will continue to apply, unless further amended or withdrawn. It (and this updated Guidance) remains non-statutory.

3. Parties to contracts should act responsibly and fairly, support the response to Covid-19 and protect jobs and the economy as set out in the note of 7 May. 4. Three specific issues are considered further in this Guidance:- payment, extensions of time and the avoidance and resolution of disputes.

Issue 1 – Payment 5. Responsible and fair behaviour in contractual arrangements impacted by Covid19 will support the performance and viability of contracts. That includes cash-flow being maintained where appropriate and avoiding disputes and financial distress for the parties.

6. The Government has introduced a package of financial support for businesses and individuals to help with the preservation of cash-flow. In addition, for public bodies, the Government published Procurement Policy Note – Supplier relief due to COVID-19 (PPN 02/20) (now updated

by Procurement Policy Note – Recovery and Transition from COVID-19 (PPN 04/20)) which provides guidance on providing relief to suppliers, including, where appropriate, continuity of payment. For PFI, PPP and PF2 contracts, the Government published Supporting vital service provision in PFI/PF2 (and related) contracts during the COVID-19 emergency which makes it clear that the principles of PPN 02/20 apply to PFI, PPP and PF2 contracts.

7. In a wider context, the Government continues to promote and operate the Prompt Payment Code. In addition, the Public Procurement Review Service will investigate complains about late payment in contracts with public bodies. In public procurement, non-compliance by suppliers with payment standards set out in Procurement Policy Note 04/19 is generally required to be taken into account by central Government departments (and their arm’s length bodies) when selecting suppliers for large contracts.

8. The Government understands the importance of prompt, fair and effective payments in contracts. Parties are therefore strongly encouraged to make prompt payments in 28

www.northamptonshirelawsociety.co.uk

accordance with contractual terms, legal requirements and applicable guidance. This is important for all suppliers, but particularly so where they are SMEs or individuals who may not have the same resources as large businesses.

Contracting authorities should pay suppliers as quickly as possible to maintain cash flow and protect jobs.

9. It is recognised that more work continues to be required to improve payment culture in the UK. The Government is reviewing what more can be done to change payment culture for the better.

Issue 2 – Extensions of time (& associated costs) 10. It is recognised that parties to some contracts may find it difficult or impossible to perform those contracts in accordance with their agreed terms as a result of the impact of Covid-19 – including through illness in the workforce, the effects of restrictions on movement of people and goods, revised ways of working necessary to protect health and safety and the closure of businesses.

11. Parties to commercial contracts should consider carefully, and reasonably, what reliefs may be available, including whether an extension of time for performance should be granted, how additional costs should be dealt with and whether terms should be renegotiated to preserve the viability of the contract to accommodate the impact of Covid-19.

Issue 3 – Avoidance and resolution of disputes 12. An equitable adjustment or accommodation in contractual arrangements impacted by Covid-19 should be considered in preference to a formal dispute.

13. The Government strongly encourages parties to seek to resolve any emerging contractual issues responsibly, through negotiation, an early neutral evaluation or mediation, before these escalate into formal intractable disputes.

14. Parties should also consider their commercial practices and how they deal with potential disputes, including signing up to initiatives such as the RICS Conflict Avoidance Pledge (www.rics.org/uk/products/dispute-resolution-service/ conflictavoidance-pledge/).

15. Many fast-track dispute resolution procedures have been developed in response to the Covid-19 emergency. In addition to the Low Value Disputes Model Adjudication Procedure developed by the Construction Industry Council and the Royal Institution of Chartered Surveyors (RICS), the Centre for Effective Dispute Resolution (CEDR) and the Chartered Institute of Arbitrators (CIArb) have recently created the Pandemic Business Dispute Resolution Service. Other fast-track dispute resolution services are available.

Other guidance and recent legislation 16. For public bodies, updated information and guidance on providing relief (including payment) to suppliers has recently been published in Procurement Policy Note – Recovery and Transition from COVID-19 (PPN 04/20).

18. For commercial leases, on 19 June the Government published a code of practice to help commercial landlords and tenants map out plans for economic recovery during the coronavirus pandemic (www.gov.uk/government/publications/ code-of-practice-forthe-commercial-property-sector).

19. For insolvency, on 25 June the Corporate Insolvency and Governance Act received Royal Assent.

20. The Competition and Markets Authority is monitoring business practices during the Covid-19 emergency and unfair business practices can be reported at www. coronavirus-business-complaint.service.gov.uk.

Future state of contractual arrangements 21. The Government recognises that lessons on how parties to contracts have responded to Covid-19 need to be learned quickly. There are three particular objectives:

(i) support the restart of the economy,

(ii) prevent unnecessary insolvencies

(iii) support the long-term viability of contracts & businesses.

The Government is reviewing how its procurement processes and the contract terms it offers to suppliers can adapt to Covid-19 risks, the impact on supply chains and new ways of working and support economic recovery. The Government will work with the market to do that and strongly encourages all parties to commercial contracts to reflect those objectives. The Government has set up Project Speed to cut through red tape and get things done.

Further information and advice 22. Further information and advice on Covid-19 is available on www.gov.uk.

23. The impact of this guidance will continue to be kept under review, including the need for further measures. Enquiries about this note can be directed to info@crowncommercial.gov.uk.

Cabinet Office 30 June 2020

Comment The Guidance does not affect the legal rights of parties to English law contracts, and so it does not restrict those who choose to enforce their rights strictly. What it does, is encourage a broad concept of “fairness” to govern contractual relations at this time.

What does the Guidance ask of parties to contracts?

The heart of the Guidance provides that “the Government strongly encourages responsible and fair performance and enforcement of contracts during this public health emergency.”

When does the Guidance apply?

The Guidance applies to individuals, businesses and public authorities.

What is “Responsible and Fair” Contractual Behaviour?

What constitutes “responsible and fair” is not expressly defined but is said to include “being reasonable and proportionate in responding to performance issues and enforcing contracts (including dealing with any disputes), acting in a spirit of cooperation and aiming to achieve practical, just and equitable contractual outcomes having regard to the impact on the other party (or parties), the availability of financial resources, the protection of public health and the national interest”

Northamptonshire Law Society

17. For the construction sector, on 7 May the Construction Leadership Council issued practical guidance for all companies involved in the construction supply chain on how to minimise potential disputes (www.constructionleadershipcouncil.co.uk).

All existing contracts which are “materially impacted” by COVID-19 are caught by the Guidance (other than contracts which are speculative in nature in respect of risks similar to COVID-19, or to financial market transactions). No guidance is given, however, as to what constitutes a “material impact.” The Guidance does not apply in the devolved administrations.

The Guidance gives 15 examples of situations in which fair and reasonable behaviour is strongly encouraged, including: * Requesting and giving relief for impaired performance (notably including in respect of “the making of payments,” which are often left unclear in circumstances of force majeure); * Exercising remedies for impaired performance (including enforcement of security and insolvency or winding up proceedings); * Requesting, and making, payment under the contract; * Claiming breaches of contract and exercising termination provisions; and * Making and responding to force majeure, frustration, and change in law claims.

Notably, the original Guidance uses the phrase “spirit of co -operation.” Whilst there is no generally implied duty of good faith in contractual relationships as a matter of English law, (and the original Guidance certainly does not introduce such a duty), it may perhaps be regarded as a wish or recommendation that parties engage in good faith conduct.

At the least, it calls for a relaxation of the strict adherence to contractual and legal rights in these extreme times, with the objective of avoiding formal disputes and preserving supply chains, the economy, and businesses.

What is the effect of the Guidance?

The Guidance is not legally binding, but it signals behaviours which are expected of businesses by the UK Government, by using the language of the Government “strongly encouraging” parties to comply “for their collective benefit and for the longterm benefit of the UK economy.”

The original Guidance is clear that it does not take precedence over, inter alia, the following: * Any relief already available to parties in:

(i) the relevant contract (such as force majeure provisions),

(ii) law, custom or practice (such as the doctrine of frustration), or (iii) the Government’s response to COVID-19 (such as by way of loans and grants), nor other legal duties or obligations; or *

Contracts whose primary purpose is to make express and clear provision for, and allocate risks in respect of, the effects of global or national public health emergencies or pandemics (e.g. insurance contracts). www.northamptonshirelawsociety.co.uk

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Northamptonshire Law Society

The original Guidance reinforces the Pre-Action Protocol and the Civil Procedure Rules’ promotion of the use of ADR and early settlement of disputes, by strongly encouraging parties “to seek to resolve any emerging contractual issues responsibly – through negotiation, mediation or other alternative or fast-track dispute resolution – before these escalate into formal intractable disputes.”

It remains to be seen how this broad request to act fairly and responsibly plays out in the commercial world, where parties may well have different views as to what this means, and also have responsibilities to their stakeholders. It is important to state that this represents ‘guidance’ only. It is not any part of Statute law.

Paragraph 7 of the original Guidance states (in part) that: “Whilst this Guidance has general application to all active contractual arrangements materially impacted by Covid-19, it is guidance only and is not intended to override: …

(b) any specific support or relief available:

(g) exercising remedies in respect of impaired performance, including enforcement of security, forfeiture or repossession of property, calling of bonds or guarantees or the initiation or continuation of insolvency or winding up (or equivalent) proceedings; (h) claiming breach of contract and enforcing events of default and termination provisions (including termination rights arising by reason of the insolvency or potential insolvency of a party); (i) making, and responding to, requests for information and data under the contract; (j) giving notices, keeping records and providing reports under the contract (recognising that the need to keep records of contractual behaviours and decisions, including the behaviours referred to in this guidance, is important); (k) making, and responding to, requests for contract changes and variations;

(i) in the relevant contract (for example relief given in express provisions in the contract),

(l) making, and responding to, requests for consents (including funder consents);

(m) commencing, and continuing, formal dispute resolution procedures, including proceedings in court;

(ii) in law, custom or practice (including any equitable relief),...

(c) any other legal duties or obligations with which a party to a contract is bound to comply…”

Paragraph 8 states: “It is not intended to override specific contracts whose primary purpose is to make express and clear provision for, and allocate risks in respect of, the effects of global or national public health emergencies or pandemics, especially contracts of insurance, although the Government would encourage responsible and fair behaviour where possible.”

Then, under the heading “Responsible and fair contractual behaviour” the following is stated: “14. Responsible and fair behaviour is strongly encouraged in performing and enforcing contracts where there has been a material impact from Covid-19. This includes being reasonable and proportionate in responding to performance issues and enforcing contracts (including dealing with any disputes), acting in a spirit of co-operation and aiming to achieve practical, just and equitable contractual outcomes having regard to the impact on the other party (or parties), the availability of financial resources, the protection of public health and the national interest.

In particular, responsible and fair behaviour is strongly encouraged in relation to the following: (a) requesting, and giving, relief for impaired performance, including in respect of the time for delivery and completion, the nature and scope of goods, works and services, the making of payments and the operation of payment and performance mechanisms; (b) requesting, and allowing, extensions of time, substitute or alternative performance and compensation, including compensation for increased cost or additional performance; (c) making, and responding to, force majeure, frustration, change in law, relief event, delay event, compensation event and excusing cause claims;

(d) requesting, and making, payment under the contract;

(e) making, and responding to, claims for damages, including under liquidated damages provisions;

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(f) returning deposits or part payments; www.northamptonshirelawsociety.co.uk

(n) requesting, and responding to, requests for mediation or other alternative or fast-track dispute resolution; and

(o) enforcing judgments.

Comment:

It should be noted that this has no legal status in that it is guidance only. The reference in paragraphs 7 and 8 to it not being intended to override certain matters. If the inference is that – aside from the matters set out in paragraph 7 and 8 – it is ‘intended to override’ other aspects of the parties’ contracts, then such inference does not have legal force or effect.

No explanation – in relation to remedies – is given as to how the Guidance is intended to operate as regards the operation of binding Statute law, eg. the Law Reform (Frustrated Contracts) Act 1943.

No explanation is given as to the sanctions for what may be perceived to be non-responsible or non-fair behaviour by a contracting party. It is difficult to conceive of what the sanctions might be. Perhaps the Government is intending obliquely to direct Courts and Tribunals not to grant remedies to which contracting parties are otherwise entitled but it is not clear.

Paragraph 23 of the original Guidance refers to the possibility of bringing forward legislation, but an appropriate Government Bill has not yet been brought forward.

None of this is to say that every sympathy should not go out to contracting parties caught up in the present terrible situation.

But it would be preferable to legislate, not to publish non-binding and non-enforceable advice.

Euan Temple Euan Temple qualified as a solicitor in 1970, retired 2013. Specialised in co/commercial work.

President of East Midlands Regional Association of Local Law Societies 1994, Member of the English Law Society’s International Committee 1994-1997, Council Member of Northants Law Society 2003-date, Secretary 2006-8, President 2009-10, currently President of Eurolegal International Lawyers network, and has his own business consultancy. He likes “Positive Thinking” and dislikes “Red Tape”!

The use of virtual hearings for experts and assessors post Covid-19 Post Covid-19, expert witnesses and assessors are about to embark on a relatively new process for some with adducing of evidence which may be strange and disconcerting: the use of what are sometimes called “virtual” hearings introduced by the lockdown. Old and established ways of giving live evidence are now making way for this new approach where the witness is not actually in a court room but based at a remote location, linked to the court process by technology which often does not work properly. But give it time!

Just think of it - the time saved by not having to travel to court if you have mastered the intricacies of skype! There are, of course, a myriad of problems which can arise mainly to do with the process of carrying out virtual hearings. The two main objections raised by the judiciary when refusing permission for witnesses to appear via a link have been:

By Phillip Taylor MBE, Barrister at Law, Richmond Green Chambers

Accreditation and Training

Northamptonshire Law Society

The Legal Business of Business is Changing

The main issue for the future which still confront experts and assessors are the need for their proper accreditation to include the use of virtual hearings, so the court knows who the right experts are. And an expanded training programme will need to be developed to cater for problems arising from this new process.

One problem which has been thrown up by virtual hearings are things which may be said inadvertently which are nervous slip ups when giving evidence: training for virtual hearings can cater for this eventuality and proceedings are all recorded.

We have flexibility in the process to deal with this sort of issue because the way forward now will be an enhanced use of the remote hearing which will benefit experts: Covid-19 has shown us that there can be no turning back.

Mr Andrew Wojcik md, frcs Consultant Spinal Surgeon

1. Who is present in the room where the expert is located, possibly giving coaching lessons and prompting?

2. What papers, documents or trials bundles does the expert have available whilst giving evidence, or are there inadequate court papers available to him or her?

I believe these two main objections have been successfully dispensed with using a properly administered link which is controlled by the court staff. It may be controversial to say so, but the basis of many objections to the use of virtual hearings has been fear that justice may not be seen to be done, and an inherent dislike of change now forced on us: both are myths.

CPR 35 – Experts and Assessors and PD 35 It is inevitable, then, that change will come to both CPR 35 and the PD as a minimum requirement to permit virtual hearings for experts. Whether individual rules will be amended separately is doubtful because the entire CPR will need revision. Not the mere emergency amendment so far, but the need to incorporate more use of live links in the future to cover each occasion in the litigation process.

And it can be done without too much trouble if there is a willingness to oblige… because we have found it works well.

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Tel: 01480 418761 Fax: 01480 423109 Email: mulberryprivatehealhcare@nhs.net www.northamptonshirelawsociety.co.uk

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Northamptonshire Law Society

Termination for insolvency: The clock is ticking The Government has published the Corporate Insolvency and Governance Bill. If passed, this law will significantly restrict suppliers’ ability to exit commercial agreements due to restructuring or insolvency-related causes.

That the current pandemic has thrown a curveball at many businesses is a given.

At the end of February, the Bank of Scotland Business Barometer reported that overall business confidence in the UK was at a net balance of 23%. Only two months later and confidence plunged to minus 29%.

This shouldn’t come as any surprise. The lockdown has but a brake on the economy and left millions of businesses reeling.

Many among them are grappling with cash-flow difficulties and, sadly, are facing insolvency.

An initial reaction for many businesses has been to dig out their relevant contracts to see if they can offer a ready-made solution.

Many of these contracts contain clauses in them which state, in one way or another, that they can terminate the agreement if an insolvency-related event happens, or even, in some cases, if it is threatened. These types of clauses—sometimes called ipso facto clauses—are typically added by legal advisors because, in the absence of an express contractual right to terminate for insolvency-related events, a party has no common law right to do so.

On 20 May, the Government introduced the Corporate Insolvency and Governance Bill into the House of Commons.

This draft law, to be rushed through Parliament, is an attempt to help businesses get the ‘breathing space they need’ to continue trading. But it also proposes to suspend the operation of many termination clauses.

This will have a major impact on how termination provisions operate in the future.

Corporate Insolvency and Governance Bill

The aim of the Bill is to maximise the chances of businesses surviving the pandemic. So the Bill has introduced draft rules that mean: • typically suppliers won’t be able to rely on any termination provisions in their contracts if a business has entered into an insolvency event •

where an insolvency event has occurred that would have allowed a supplier to terminate their contract before the business entered that event, but that right has not been exercised, it is suspended once the business enters the insolvency procedure

• if the supplier’s right to terminate arises after an insolvency event begins (for example, for non-payment for goods supplied after that time) then this right to terminate won’t be 32

www.northamptonshirelawsociety.co.uk

by Simon McArdle

prohibited. However, there are exemptions. The supplier may terminate their contract: • where an officeholder or the business in question (as applicable) consents to the contract being terminated, or • with the permission of the court, where the court is satisfied that the continuation of the contract would cause the supplier hardship Suppliers will also be prohibited from making payment of outstanding charges a condition of any continued supply.

While many of the provisions in the Corporate Insolvency and Governance Bill are stated to be temporary to deal with the COVID-19 crisis, the above measures will be permanent.

(Although on a temporary basis the measure will not apply to suppliers that are ‘small entities’.)

Contractual termination provisions are not invalid in relation to contracts for the supply of goods or services to a business in the context of financial services.

What does this mean?

Put simply, this will be an additional burden for suppliers, but a gain for creditors: • for suppliers, this may mean an increase in ongoing insurance costs (check with your broker) and possible legal costs in applying to a court to be exempt using the hardship exemption •

for creditors, they will need to be aware of these provisions and how they operate. In particular, they should be mindful of the fact that, even though contracts may have an express right to terminate in them when the Corporate Insolvency and Governance Bill becomes law, such provisions may cease to have effect against the supplier

In due course, some businesses may also want to amend their contracts so that Corporate Insolvency and Governance Bill is not overlooked by mistake. This may not be strictly necessary as a matter of law, but may make sense if your contracts are used by (non-legally trained) stakeholders across your business to manage expectations and the contractual relationship generally.

The Government’s ‘best estimate’ of the cost to suppliers, one of the ‘main affected groups’, is that it will cost them £292.9 million over ten years, although it is unclear how much of this figure relates to the cost of, for example, suppliers going to court to bring a hardship claim against any creditors. Indeed, in the absence of any guidance on what supplier hardship is, and thus where the line should be drawn, it is unclear at this stage how much this exemption will be relied upon in practice. After all, litigation can be time-consuming and, for smaller suppliers in particular, not cost-effective. Many suppliers might choose instead to concentrate at looking to insure against these risks.

Guidance on responsible contractual behaviour There is now non-statutory guidance in this area too.

On 7 May the Government issued, with little fanfare, nonbinding guidance on ‘responsible contractual behaviour’.

In essence, the Government’s view is, if you can, hold off relying on these types of clauses. Don’t terminate unless you have no alternative. Just because you can do something, doesn’t mean that you should.

Most notably, however, the guidance makes it clear that it doesn’t override ‘any specific support or relief available’ in any relevant contracts, such as any termination provisions. In effect, this non-binding, ‘please-play-nicely’ guidance is just that: nonbinding. Businesses are not obliged to follow it and, frankly, it remains to be seen to what extent, if at all, they will embrace it, despite its worthy intentions. From a legal point of view, failure to comply with it may have no to few legal consequences.

In due course, the courts may look at this guidance when determining if a party has been reasonable in a contractual dispute or, indeed, they may decide not to pay any heed to it at all. At the moment, the legal risks of not following it seem very low.

The Bill is due to be fast-tracked through Parliament, and it is likely to become law before the end of June. Parliamentary scrutiny over this Bill is likely to be somewhat lacking and things might not get picked up by legislators that ought to be picked up if there were more time. There may well be some unexpected surprises down the line in how this law works.

Northamptonshire Law Society

The general approach that the Government wishes to see is that businesses should concentrate on the long term and, ‘act responsibly and fairly in the national interest in performing and enforcing their contracts, to support the response to Covid-19 and to protect jobs and the economy.’ Or, in other words, ‘bad behaviour will be bad for jobs and will impair our economic recovery’.

What happens next?

In the meantime, businesses may wish to review their position in supply chain eco-systems as their ability to utilise contractual protections they currently rely upon may soon be severely restricted.

Disclaimer

This information is for educational 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.

Simon McArdle Simon is a Partner in the commercial team who specialises in a range of commercial contracts including large scale outsourcing arrangements, I.T. contracts, sponsorship and image rights arrangements and manufacturing and distribution agreements.

Simon regularly advises clients in a range of sectors including the retail, logistics, food, IT, health and automotive sectors.

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

by Carolyn Coles

As I type this it is hard to comprehend just how our lives as we knew them , and those of our fellow citizens worldwide have been impacted by this Pandemic. The changes that have taken place so quickly, will no doubt take months, even years for us to regain any recognisable level of normality.

Please also let me know if you wish to add anything to the bulletin, it would be good to hear from you!

We all have had our own particular challenges to deal with and work through, and I am solicitous to the fact that as manager of Northamptonshire Law Society, I have to continue to present a “business as normal” pretence.

Stay safe,

So with this is mind, I will be continuing to arrange training events over the next few months via Zoom . If you would like to secure a place, or have a specific topic you would like me to facilitate let me know via email – sec.nls@outlook.com or give me a call on 07543662572, or 01604 881154.

Wishing you all the best of Luck as we venture back into our various workplaces.

Best wishes

Carolyn Coles

Carolyn Coles - Society Manager Email: sec.NLS@outlook.com Office Number: 01604 881154 My mobile: 07543 662572

www.northamptonshirelawsociety.co.uk

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Contingency planning with Quill Northamptonshire Law Society

By Julian Bryan, Managing Director, Quill

The SRA expects its regulated law firms to ‘continue to meet the high standards the public expect’ and have ‘appropriate contingency plans in place for disruption’ during the coronavirus pandemic.

With that in mind, it should be no surprise that as the largest combined legal cashiering and payroll bureau in the UK, we at Quill have always been hot on our business continuity and disaster recovery (BCDR) planning.

And for good reason: if you were the back office for 7,000 lawyers and paralegals, with annual billing in the order of £1 billion or responsible for generating 8,000 payslips on behalf of various employers with accompanying transfer of over £54 million to employees’ bank accounts, wouldn’t you be hot on it too?

As we’re now living and working through difficult times, this forethought is serving our clients well. I’m sure none of us could have made a New Year’s Eve forecast that we’d have an international pandemic on the scale of coronavirus within 100 days, and yet here we are navigating the biggest health crisis the world has ever experienced.

Our contingency planning has most definitely benefited our clients as we’ve helped them maintain the compliance standards which the SRA and other regulators demand on behalf of consumers. That, coupled with our legal accounts, practice and document management applications all hosted in the cloud, has meant Quill and our clients have had a relatively simple switch to a work-from-home model. There’s been no service disruption whatsoever.

Of course, our industry regulator admits these are ‘mitigating circumstances’ and acknowledges that some processes – financial management duties, in the main – may not be completed on time. As such, a level of leniency is afforded around submission deadlines.

However, the SRA maintains its absolute focus on protection of client monies.

Ultimately, cashiering tasks themselves still need to be done. This means you need to have a contingency plan just in case we hit a second spike, or if your cashier is unable to work for health or shielding reasons.

We’ve put together some practical notes on the actions we took – and might well still need to take – to keep our software servicing 7,000 legal professionals and our outsourcing staff servicing legal cashiering and payroll compliance. Hopefully you can draw inspiration for your own BCDR reviews: SMS system – We use an SMS alert system to send messages by text to any group of managers, teams, offices or role-based employees. SMS is still the easiest and quickest cross-platform messaging tool and, with the right SMS system, you can alert staff by job title or location to attend an office or stay at home.

Even before the pandemic was a pandemic, we took the opportunity to double check our staff’s personal details were present and correct – that’s mobile numbers, next of kin, etc – and, of course, our database was fully up-to-date and GDPR compliant.

With a return to physical premises unlikely until sometime later in the summer, if you haven’t already done so, now’s the ideal time to check or collate your own list of employees with latest

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contact details and set up a similar text alert system to ours. We use intellisoftware.co.uk.

Hardware & software – In the run up to lockdown and with the media getting increasingly excited – with hindsight, rightly so – we decided to our examine workingfrom-home arrangements team by team.

This helped us to iron out a few problems with regards to equipment at home.

It was only after we closed our offices that we realised one of our failings. We’d earmarked a pool of laptops that were put to good use during the trials but we hadn’t accounted for the fact we’d need every item in one pool simultaneously during the real-life event. A basic error!

Anyway, the problem was easily solved and we’re repurposing our hardware replacement strategy to a laptop-only model going forwards as we may end up with more home working, fewer desks in the office and more hot desking; something which is looking to become a plausible possibility for many organisations.

Is your own infrastructure fit for purpose?

Not only hardware but also software? For the latter – software – cloud systems have become a necessity these past weeks.

That’s exactly what we offer – a web-based complete practice management system.

Even better, to help accommodate audits and reviews, it’s provided with a free accountant’s licence. Clients using Interactive can empower both their staff and accountant to work anytime, anyplace, any device with a straightforward online login thereby eliminating any impact from unforeseeable disaster.

Our own cashiering team utilise Interactive to manage clients’ accounts as well. Whether you need cloud access to your matters, documents, legal forms, bundling tools or accounts, Interactive’s got you covered.

Phone system – Phones are the bane of every company but essential for communicating with existing and would-be consumers.

Fortunately, we’d moved our phone system to the cloud several years ago. Clever functionality facilitated the diversion of our office phones to corresponding mobiles or landlines at home.

Now we’re enhancing our phone system by installing a soft phone on every laptop or PC. Together with a headset, every member of staff has our entire phone system functionality and address book to hand. We can receive and transfer your calls from home to home more readily.

But we mustn’t forget the loyalty and dedication of our staff typified by our receptionist – Lynda.

She’s the glue binding everyone together across our offices. Being rather shy of techie things like soft phones, on lockdown she packed up her trusty phone kit and, with some careful labelling, re-assembled it on her dining room table!

Take our phone system advice and check out gamma.co.uk. It’s an infrastructure investment that’s proven to be worth every single penny at Quill.

Outsourcing services – Knowing that we’re the financial compliance backbone for so many practices and the payroll service provider for many businesses too, getting our staff socially isolated urgently whilst remaining in direct contact with clients, colleagues and team leaders was paramount. And with the SRA stressing the need for firms to put contingency measures in place, it might be somewhat easy

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to predict that we’ve had considerable interest in our outsourced cashiering services during the coronavirus outbreak. The same applies to our outsourced payroll and typing services.

The sudden move to home working has been quite a shock for certain individuals and companies. While Zoom has been a popular choice for many organisations, we’ve opted for Google Meet which allows for meetings to be open-ended, mimicking an open-door policy.

To try and keep morale high amongst Quill employees, we moved our regular staff ‘News, Views and Eats’ updates to Google Meet format and even held a two-hour all-staff AGM online at the end of April. Emotions ran high in the early days as we acclimatised to the new ways of working. As ‘accountable to you’ is our brand strapline and embedded into our ethos, we made a commitment to top up salaries for any furloughed staff, sent everyone some Easter chocolate and have branded facemasks in the pipeline!

The bottom line is this: we’ve always had fully operational legal cashiering, payroll and typing bureaus on hand throughout lockdown. If you’re working on a skeleton staffing level, or looking for a contingency plan short- or long-term, we can bridge the gap for as long as required or be retained on standby in case a future need arises.

Insurance – Early on, we reviewed our insurance cover regarding empty offices and home working. Our brokers, romeroinsurance.co.uk, have been truly fantastic and advised us to regularly inspect our offices to make sure our policy stays valid. Insurance cover has also been extended to address company-owned computer equipment being used by employees at home.

Is your insurance policy suitable for your new set up? Perhaps a check in with your own broker is due?

There are other practicalities to bear in mind at this time too. As per all of the above, enabling remote working is a key priority at the moment.

When Boris told us on that fateful Monday evening that we should work at home with immediate effect, we were ready. Decamping to home offices was an orderly event. We activated our well-rehearsed BCDR plans beginning with an SMS alert to staff initiating migration to home working within a 24-hour period. Which is exactly what we did.

The next stage is to begin planning for our collective returns to all of our offices. The Law Society has issued a framework, based on governmental guidance, which is about conducting a risk assessment and protecting your staff within the on-site environment. Read the lawsociety.org.uk/topics/coronavirus/ practical-framework-for-law-firms-and-solepractitioners-on-return-to-the-office web page.

Get in touch with Quill to strengthen your BCDR plan today.

Email info@quill.co.uk, call 0161 236 2910 or visit www.quill.co.uk.

Julian Bryan joined Quill as Managing Director in 2012 and is also the Chair of the Legal Software Suppliers Association. Quill has been a leading provider of legal accounting and case management software, and the UK’s largest supplier of outsourced legal cashiering services, to the legal professional for over 40 years.

Quill’s business continuity assured software & services

TIME RECORDING

AML CHECKING

CENTRAL DATABASE

MS INTEGRATION

PAYMENT PROTECTION

Stopwatches for desktop & mobile

AML searches during client set-up

Safe repository of contacts & matters

Close links to Word, Outlook & Excel

Sort code & bank account validation

SOFTWARE APP

24/7 SUPPORT

SECURITY ASSURANCE

OUTSOURCED CASHIERING Always-available model

DICTATION APP

Dictate documents on your smartphone

PERSONALISED DASHBOARD

AFFORDABLE FEES

Progress matters whilst on-the-go

Monitoring around the clock

ISO 27001 & Cyber Essentials certified

ADD-ON SYSTEMS

ACCOUNTS MODULE

REAL-TIME REPORTING

Forms & document bundling

Fully compliant accounting

Pre-defined & bespoke reports

WIP & KPIs at your fingertips

Avoid heavy upfront CapEx

Strengthen your BCDR plan Just choose Quill 0161 236 2910

info@quill.co.uk

quill.co.uk

Practice management software | Cashiering service

Legal accounts software | Payroll service | Typing service

Northamptonshire Law Society

Manage your matters wherever you are

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