Norfolk Law issue 30

Norfolk Law Magazine of the Norfolk & Norwich Law Society - www.nnls.org - Winter 2016/17

Inside...

More pictures from Countdown, advance details of our Annual Dinner and reviews of recent events.

Norfolk Law - Contents - 3

This issue...

Norfolk L Magazine

aw

of the Norfo lk & Norwich Law Socie ty - www.nnls .org - Winte r 2016/17

Welcome to our first edition of Norfolk Law of 2017. In this issue we look back to the Law Lecture at the UEA at the tail end of last year and bring you all the pictures from the 2017 Lawyers Do Countdown event. PLUS the date of this year’s Annual Dinner!

Inside...

More pictures Countdown, from advance deta of our Ann ils ual Dinner and reviews of recent eve nts.

Contents 4

President’s Report

18

Predicting Planning Development Risks

5

Committee

20

EWI Conference 2016 Review

6

Trustees in Litigation

22

He has his Father’s nose..

7

Annual Dinner 2017

23

The role of Solicitors on Charitable Legacies

8

Charity Golf Day

24

New Light on Charitable Legacies

9

Norfolk Community Law Service

27

Book Review

recognised by press

28

Bar Conference 2016 Review

10

NNLS Law Lecture Review

31

Cyber Crime - What is our exposure?

14

Lawyers Do Countdown...

32

The Insurance Market and Fraud

16

Flood Risk

34

2017 - The Unsustainable care Sector

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4 - Norfolk Law - President’s Report

President’s Report I would like to start by giving a big thank you to James Hunter for his presidency. James has done a sterling job of leading the NNLS, which has put on a huge range of social and training events, the annual dinner, the law walk, the law lecture, campaigns and updates. He certainly has left huge shoes to fill.

Thank you to everyone on the committee who has worked hard for NNLS over the past few years,

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

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and those who have agreed to continue to do so in the future.

We have a new year ahead of us, and also a new administrator. Joining us to replace Claire is Anna Godfrey, who will be continuing the work of an impressive predecessor and I am sure that all members will welcome her on board.

course, continuing to support members with training, social and other events over the next 12 months and beyond, will be campaigning for issues on behalf of our members, updating members on matters of interest and will be a point of contact for the profession locally. I am extremely proud to be able to represent the profession in Norwich and Norfolk over the next 12 months; it is a very daunting task.

2017 is the 125th anniversary since the incorporation of NNLS (1892, though the society was founded in 1843). We are, of

David Richards President Norfolk & Norwich Law Society

Advertising/Features Simon Castell Managing Editor David Richards Marketing Richard Castell Design David Coffey/Stuart Turner

Published Winter 2016/17 Accounts Tony Kay Legal Notice © East Park Communications Ltd. None of the editorial or photographs may be reproduced without prior written permission from the publishers. East Park Communications Ltd would like to point out that all editorial comment and articles are the responsibility of

the originators and may or may not reflect the opinions of East Park Communications Ltd. Correct at time of going to press.

Disclaimer Norfolk Law is published for the Norfolk & Norwich Law Society by East Park Communications. All rights reserved. Reproduction without consent is prohibited.

Any comments or views expressed in any article are not necessarily those of the Society or Publisher. All times, prices and event details were correct at time of publication.

Norfolk Law - Committee - 5

6 - Norfolk Law - CPD Preview

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Norfolk Law - Event Preview - 7

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8 - Norfolk Law - Event Review

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Norfolk Law - Event Review - 9

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10 - Norfolk Law - Event Reviews

NNLS Law Lecture

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Norfolk Law - Event Reviews - 11

Review

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12 - Norfolk Law - Event Reviews

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14 - Norfolk Law - Event Review

Lawyers Do Countdown...

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Norfolk Law - Event Review - 15

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16 - Norfolk Law - Articles

Flood risk – are you getting the full picture?

The risk of property flooding often crops up in conveyancing articles but, when we look at the pattern of conveyancing searches being ordered, we notice that around 80% of orders we receive do not include a thorough flood assessment and details on insurability.

Law Society Practice Note The Practice Note on flood risk was updated recently (February 2016) and full details can be found on the Law Society website. The Practice Note highlights that different parties will have different appetites for risk, but that conveyancers should consider:

1. advising the client to establish the terms on which buildings insurance, including flood risk cover, is available; 2. advising the client to discuss the level of risk with a building surveyor or flood risk assessment consultant.

Ensuring that you have the full picture on flood Confusion can arise because a number of different searches include information on property flooding. The information provided ranges from basic flood screening as part of an automated environmental report, through to a full assessment, insurability and consultant opinion in some of the standalone flood reports and more comprehensive environmental reports.

Please see the table below for a summary of coverage in a number of different residential conveyancing searches:

SEARCH

FLOOD SCREEN

FLOOD RISK ASSESSMENT

INSURABILITY STATEMENT

CONSULTANT OPINION

Landmark Homecheck Pro Environmental

✓

Landmark Envirosearch Residential

✓

Landmark Homecheck Professional Flood

✓

✓

✓ (risk model)

Landmark RiskView Residential

✓

✓

✓ (risk model)

Argyll SiteSolutions Residence

✓

✓

✓ (fully manual)

✓

✓ (risk model)

✓

✓ (risk model)

Groundsure HomeScreen

✓

Groundsure Homebuyers

✓

Groundsure Flood

✓

Note: risk model opinions are automated, whereas a fully manual opinion denotes that the information is manually reviewed by a consultant.

Identifying the likelihood of risk The Geodesys website provides you with a search alert tool that screens properties and land for all conveyancing risks. If there is a likelihood of flooding, then suitable recommended searches will be highlighted within the Geodesys product list to aid conveyancers in their choice of search.

For further details on the different levels of residential and commercial flood information available please talk to Geodesys Customer Services on 0845 070 9109.

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Norfolk Law - Articles - 17

M Remember the Law Commission report of 2011? It’s been This together wi

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18 - Norfolk Law - Articles

Planning: Can you predict future development risk?

The increasing pressure on land needed to meet the housing requirements of a growing population is undeniable.

The National Audit Office recently said that 147,000 new homes need to be built every year in England to hit the Government target of one million new homes by 2020.

Like it or not, UK residents need to accept that greenfield development – even controversial development – is coming, and sooner than some of them would like.

Despite the Government’s 2012 pledge that any scheme that, ‘destroys the environment….builds on the green belt… [or] builds outside a town centre,’ would not be allowed, such developments are already going ahead, with more in the pipeline.

The current planning system is probably more pro-development than it has been for a generation. Unfortunately this often leads to bad planning decisions. For example a green field in the middle of Cornwall, used as a seasonal caravan site, now has planning permission for 50 houses.

A ridiculous decision, for such a remote location. So, why was it granted? Simply because Cornwall has failed to identify a five-year supply of housing. In such circumstances, the decision is a presumption in favour or development. Put simply, the benefit of new houses outweighs the harm.

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It’s believed that 75% of councils in England and Wales fall into this ‘underprovision’ category.

In East Anglia, the chance of property purchasers being exposed to a major or significant risk of change within a 75 metre radius varies according to location.

In Norwich it is one in ten; in Ipswich it is one in five; but in Cambridge it is almost one in three – putting Cambridge more at risk of being exposed to significant change than London.

“We all know that ‘location, location, location’ are the three most important words when buying a property,” said Stuart Whaley, who heads up Index Property Information in East Anglia.

“However, it’s the one thing homebuyers never really investigate properly. Without an active location-specific investigation, no one knows what planning applications are being promoted in any area.”

Index Property Information offers its conveyancing clients access to DevAssist products, which are designed to inform buyers of local policy, Strategic Housing Land Availability Assessment (SHLAA) sites, allocated sites, potential sites and live planning risks, as well as looking for any development potential that exists within the subject property boundaries.

A DevAssist report covering all these factors is available from Index Property Information and will give your clients valuable knowledge about the property they are looking to buy.

For example, an SHLAA report is designed to identify land and buildings with potential for new housing, and gives your client a greater insight into which landowners are motivated to see their land developed.

Where any risks are identified by DevAssist they are attached to the report.

Paul Addison is managing director of DevAssist, which works closely with Index Property Information. He’s been involved in the residential property business for 25 years and says, “What people need is a better understanding of their immediate area so they can understand what can and can’t be developed.

“Then, and only then, can they make a truly informed decision.”

DevAssist from Index Property Information can help conveyancers give their clients the most diligent service – indeed some have described it as the most important report they order.

To find out more about DevAssist reports, contact Index Property Information at eastanglia@indexpi.co.uk or call 01485 524320.

20 - Norfolk Law - Articles

EWI Conference 2016 Insight and Controversy: Expert Witnesses Kick Off Autumn Conferring at the Cutting Edge Elizabeth Robson Taylor and Phillip Taylor MBE of Richmond Green Chambers review one of the highlights of the recent conference season... the 20th Annual Expert Witness Conference at Church House, Westminster.

For lawyers in England and Wales, autumn is the contemplative ‘season of mists and mellow fruitfulness’ that also heralds the advent of what is becoming known as “The Conference Season”, during which time there are conferences galore.

effect a demonstration of its standing, its burgeoning influence and the pool of talent that sustains it. The roster of distinguished speakers consisted mainly of lawyers, (some transatlantic) legal advisers and members of the judiciary, including for example, Supreme Court Justice, Lord Kerr.

For at least the last couple of decades, these annual events have become almost an essential part of a well-rounded, grounded and well-informed professional life. So political animals generally gravitate to the various party conferences – Labour, Tory, LibDem, Green take your pick. And for members of the Bar, there’s the must-go-to Bar and Young Bar Conference in London.

Amiably chaired by EWI Governor Amanda Stevens, the Conference proceeded apace, with speaker after speaker imparting much useful, insightful and sometimes controversial comment on the future of the justice system in general and the varied role of the expert witness in particular.

If you’re a keen conference goer, you’re the sort who inevitably appreciates the opportunities to tap into what’s happening now in your field… what’s happening next… what should be happening, but isn’t – and why and what you can do, or should do, or shouldn’t do about it. And generally you have opportunities to meet many of the main players in your areas of interest and participate (or not) in the usually sharp controversies of question and answer sessions.

Lord Kerr and Dr John Sorabji, who can reasonably be referred to as the keynote speakers, made some memorable points.

‘It is a given’ remarked Kerr, ‘that the role of experts in our legal system is indispensable’, later adding that ‘the relationship between the decision maker and the expert witness can be a delicate and difficult one’!

However, there is one conference that often doesn’t turn up all that prominently in the purview of the typical reader of ‘The Barrister’ and that is the annual Expert Witness Institute (EWI) Conference. Held in the central but sequestered and leafy, rather collegiateish location of Church House in London – a stone’s throw from Parliament – this conference is where lawyers can garner important insights into the role and challenges facing the expert witness in court and where expert witnesses can meet and greet each other as well as the lawyers who instruct them.

This article is written in the hope and expectation that the profile of the EWI will be significantly raised. If you are a lawyer frequently (or even infrequently) engaged in trials requiring expert evidence, you need to know more about the EWI - and attendance at this conference does provide the ideal opportunity to do so, and it is a fun event.

A deep pool of talent The recent EWI Conference of 2016 marked the 20th anniversary of the EWI Conference, and very well attended it was. It was in

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Lord Kerr

He went on to say that ‘there are many spheres of legal activity where expert evidence has been pivotal to the outcome of contested and even compromised, litigation.

In over twenty years as a judge, I have heard countless cases in which the result has been heavily influenced by the evidence given by impartial, distinguished experts, either in written reports or in oral testimony.’

He elaborated further on the complementary nature of the respective roles played by the expert and the tribunal of fact and (where possible) those roles must be clearly defined.

Interestingly, he quoted Lord Phillips in a 1997 case in which he observed that ‘when the scientist gives evidence, it is important that he should not overstep the line which separates his province from that of the Jury.’

Finally, Kerr reminded judges and jurors as well as experts, of the need to combine humility and assertiveness. ‘Humility’ he said ‘will lead them to defer to each other when appropriate, while assertiveness should ensure they do so only when appropriate.’

Dr. John Sorabji – ‘EWI in an Era of Reform.’

Another significant speech was delivered by John Sorabji, a regular friend to the Institute.

As Senior Fellow UCL, Judicial Institute - and Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls, Sorabji covered a number of important points.

‘There are plenty of challenges and opportunities for all experts ahead of us because we’re still in an era of reform,’ he said, referring to the paper from the Lord Thomas and others, entitled ‘Transforming the Justice System.’ A document much discussed at all the recent legal conferences, it follows on from the ‘Reshaping Justice’ paper of two years ago on which Sorabji has acted as an adviser and commentator.

Sorabji also dealt with two further issues of contemporary note: the fixed costs regime and ‘hot tubbing’ – the latter being the hot topic du jour of last year’s EWI conference (and before). It may have cooled down a bit since then, but it does refer to the use of concurrent evidence, which appeared in England and Wales around 2005, having originated as an import from Australia the same year. ‘It does not save costs’ warned Sorabji, even though, in the experience of most of the delegates, it does make the proceedings of the court easier to follow.

All the speakers who followed touched on a number of the core issues involved in identifying - and elaborating on - a number of pitfalls inherent in the role of expert witnesses and their relationship with the lawyers who instruct them. For example, Professor Stephen Mayson, of the Centre for Ethics and Law at the Faculty of Laws, University College London, spoke on the ever-changing face of the legal profession - in which practitioners must contend with national and global as well as local, competition… plus the new regulatory framework created by the Legal Services Act… and the relentless rise of the consumer – and more.

Having advised barristers’ chambers, law firms and government departments worldwide, Mayson has also appeared as an expert witness himself on law firm management in proceedings before the Solicitors Disciplinary Tribunal. All this and the impact of alternative business structures has created tensions, but it’s not all bad out there. The market for legal services is huge and continually expanding with a total value of £30bn annually, which apparently is no more than a mere estimate.

Norfolk Law - Articles - 21 ‘Two years older than Google’ Some words from EWI’s fourth Chair What followed on from this cautionary yet optimistic message were some words from Sir Anthony Hooper QC, who is the EWI’s fourth Chair. In celebration of the EWI’s twentieth anniversary, he encouraged members to raise the profile of EWI for members present and future.

‘What a Year!’ he declared, ‘twenty years old -- we’re two years older than Google! And we are doing what we should be doing as an Institute.’

Sir Anthony also mentioned the increase in online teaching carried out by the EWI in such jurisdictions as Singapore and remarked about the fact that EWI membership has now ‘topped the thousand mark’, although the EWI still actively seeks new members particularly in forensic science as it grows.

As a final point, Sir Anthony referred to the decision in Kennedy v. Cordia heard on 10th February 2016, a leading case heard recently in the Supreme Court. Regarded as pivotal, the case highlighted and examined the role of the expert, thus creating a singularly important statement on the role and duties of

expert witnesses. As Sir Anthony reminded delegates, the primary duty of the expert is to the court, but there is also the duty to the client. Furthermore, the issue of impartiality should always be uppermost.

expert witness sooner than later, or you might be in for a spot of bother. You have been warned.

Eat the Frog First: a Plea from Across the Pond

Sadly, space limitations rather rule out further detailed descriptions here of many of the other conference speeches, some of which dealt with highly specialised topics. Suffice to say, however, that the EWI Conference as a whole was distinguished in particular, by useful, organized, highly professional and high quality debate, lawyerly in tone and content because it was led largely by lawyers - and punctuated with question and answer sessions that were illuminating and challenging.

Make what you will of the whimsical title, but this speech was deadly serious and presented with verve and vigour by the transatlantic duo of Alan Anderson and his forensic accountant associate Carol Ludington. Having acquired degrees from Cornell University also a PhD from King’s College, London, Minnesota-based trial lawyer, Alan Anderson has been – among his lengthy list of credentials – included in The Best Lawyers in America in intellectual property litigation since 2010 and there are a number of other strings to his formidable bow.

Basically their presentation centered on the warning that ‘questions that fall within the purview of experts often are left until the end of preparations, or deferred entirely’ – and that ‘a reluctance to engage expert witnesses early in the dispute resolution process… often results in poor decisions or a less than desirable outcome.’ In other words, brief your

Lawyerly debate

So later this year - only a few months hence - when autumn leaves drift past your window – and the start of the legal term looms - plan to take in a conference or two. The networking opportunities are first class and the food isn’t bad either, especially at the EWI Conference, which you really must make a note of in your Chambers diary.

In the august yet convivial precincts of Church House, there will be much that you can learn to your advantage, so do come next year!

Dr Camilo Zapata MBBS MRCPsych

D

r Zapata trained at St George’s and specialised in General Adult Psychiatry at the Oxford and London deaneries. He has also lectured students at Royal Free, University College medical schools and abroad.

He works with a varied team made up of psychologists, social workers, psychiatric nurses and support workers.

“I have 10 years experience, working as an expert witness. I write about 30 medico legal reports a year. I adopt a personalised approach with my work to ensure the reports I produce are comprehensive and succinct.”

Specialisms: • Adult psychiatry • PTSD • Psychosis • Personality disorders • Mental health of asylum seekers

CONTACT Camilo Zapata Newmarket Hospital Exning Road Newmarket Suffolk CB8 7JG E: c.zapata@nhs.net T: 07958 756806

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22 - Norfolk Law - Articles

Norfolk Law - Articles - 22

M He has his father’s nose…

“You have your dad’s eye’s”, “your mums smile”, “and

using blood typing through to today’s sophisticated and

such as these; but do they have any basis in fact when

rely upon the social mirror to establish paternity, which of course is fraught with potential arguments and doubts.

Mothers, in general, are keen to affirm the social mirror, whereas fathers are programmed to question it.

Remember the Law Commission report of 2011?

It’s been your grandfather’s ears”… We’ve all heard comments highly accurate DNA testing), alleged fathers could only attempting This togethertowiassert paternity? As a leading DNA testing company dealing with hundreds of paternity cases every year, these types of comments often are posed to us. These are generally by associated adults (parents and grandparents) who wish to emphasise a connection with a particular child. But can physical resemblances or indeed personality similarities be a reliable indicator of a biological relationship or is it just a case of “seeing what we want to see”?

Upon the arrival of a new born baby or seeing a young child out with a parent, family and friends will often instinctively mention resemblances between parent and child. This deeply engrained “social mirror” enables parents to rely upon the resemblances seen by others as a reassurance of parenthood. It leads to varying degrees of parental investment: the expenditure and resources parents invest in their offspring to ensure their survival and success, which can often be at the cost of their own reproductive success.

First to note is that this is not a new approach to the paternity issue. Questions of “likeness” amongst kin were considered by Pythagoras, Plato and Aristotle; the latter first noted bilateral heredity (that characteristics can come from mother and father) and interestingly, that characteristics could also skip a generation. These likenesses between parent and offspring help to reaffirm parental certainty, the degree to which you believe you and your child to be biologically related.

In general, mothers are more certain of paternity than are fathers. Before the advent of paternity testing (historically

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In order to establish parenthood using the social mirror, fathers must rely upon the faithfulness of the mother. As a result, fathers tend to place credence upon the physical likenesses and behavioural similarities that they believe they share with their child to affirm their biological relationship. These claimed resemblances impact the father’s parental investment decisions, as he is more likely to invest in a child to whom he believes he is genetically related or with whom he shares similar characteristics.

Mothers are less dependent on physical cues as an indicator of biological relatedness as in general, they do not need to be convinced of maternity. Instead, mothers tend to notice psychological similarities with their child such as likenesses in personality and are inclined to use family resemblances to their own evolutionary advantage. They may for example, use the presumed likenesses and similarities between alleged father and child to reinforce discussions surrounding paternal certainty. These claimed resemblances then serve to persuade the father of parenthood, which in turn ensures paternal investment for the child, thus increasing both the child’s chances of success (vs. peers) and the mother’s reproductive success. Unfortunately, this also has undesirable consequences for the male who has been cuckolded into raising another man’s child since it has the effect of reducing or indeed eradicating, their own genes from the gene pool.

This issue has never been more alive than it is today, as there has been a shift from social affirmation to social nonaffirmation largely as a result of the use of social media. For example, comments posted on Facebook make the social non-affirmation very public, whereas before the advent of social media it was more likely contained to a close group of friends or family. This public display of clues to either paternity or non-paternity has the effect of raising the stakes for mother, alleged father, rival males and associated social destabilisers (who may have a variety of motives). To gain certainty and quell rumours, individuals often turn to a DNA test as the only means of delivering parental certainty.

The question of paternity may then spill over into the legal/ social services sphere as a tactic in family disputes, where one or more party is trying to reduce their responsibilities or undermine another’s position with respect to parental investment or indeed, vice versa. “More or less” parental investment is a key driver in the resolution of the dispute and a DNA based paternity test becomes a crucial piece of evidence providing clarity where only doubt existed before.

The social mirror in the context of today’s society can be a dangerous weapon, but is one that can be effectively countered by use of an unequivocal paternity test from an accredited DNA testing company such as our own.

Ms Kate Donkin (Psychology Intern) and Dr Neil Sullivan, General Manager.

Both of Complement Genomics Ltd, trading as dadcheck®. www.dadcheckgold.com sales@dadcheckgold.com 0191 543 6334

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Norfolk Law - Articles - 23

The important role of solicitors on charitable legacies

Leaving a legacy for Norfolk through NCF Norfolk is typically perceived as a fairly prosperous and vibrant part of the UK. However, there are pockets of disadvantage that exist and a need to invest in key areas, specifically our ageing population, young people and mental health and wellbeing.

Research launched in autumn last year at the Law Society, commissioned by Remember a Charity explored the vital role of solicitors in advising clients who might like to leave a legacy or gift in their will to support charitable causes.

As part of the report, Remember a Charity highlighted a disconnect between people’s intentions to give money in their will (35%), and those that actually do (6.3%).

Separately, Norfolk Community Foundation (NCF) recently attended a philanthropy event where Barclays Wealth and Investment Management shared their research about what motivates individuals to give. The most common response at 50% was ‘I can afford to’ followed by 46% who said they wanted ‘To give back to the community’. 21% of respondents said ‘Because they were asked’.

So whilst research suggests that people are generally becoming more socially aware and inclined to give, nearly a quarter of individuals may not have considered making a charitable donation until they were prompted to do so.

That’s why the role of solicitors is so important to the charity sector, particularly when it comes to charitable legacies.

Raising the subject of charitable giving Common questions that we encounter from solicitors include: • My client would like to leave a gift to support a particular cause rather than a specific charity, but hasn’t been able to find the right vehicle – how do I know which charities and community groups are most deserving?

• My client would like to leave land, property or shares to charity – can they do that?

• My client has over £1m to leave to charity and as executor has asked me to distribute amongst ten local charities – I don’t know enough about the sector or where the main areas of need exist to make an impartial and informed decision!

• My client would like to set up a charitable trust through their will, but is wary of the cost and legal responsibilities they may be leaving for family - is there an alternative?

• Should my client make a one off donation or create a longer term legacy to be invested in an endowment? What are the advantages and disadvantages?

We work in partnership with solicitors to ensure that a client’s wishes are properly carried out when leaving a gift or legacy in their will. By combining your legal expertise with our knowledge of charitable giving and local community need, we can provide you with the information you need to help your clients achieve their philanthropic aims.

NCF is a charity that was established to help address these and other emerging needs and to enable donors to undertake targeted grant making to the causes they care about.

Simply naming NCF as the beneficiary in a will with an instruction to use the legacy to support a particular cause e.g. mental health or young people or an area such as Great Yarmouth or North Norfolk, provides your client with the flexibility to support a wide variety of causes and respond to changing needs over time. Clients can still allocate an amount to their favourite charities and NCF ensures that the charity receives the gift as long as they continue to exist.

Contact To find out more or to receive our Professional Advisors pack, please contact Graham Tuttle or Anna Douglas on 01603 623958 or at info@norfolkfoundation. com • We can run breakfast or lunchtime information sessions with your private client teams to support your professional development • Sign up for our professional advisors e-newsletter at www.norfolkfoundation.com • Follow us on Twitter @NorfolkCF

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24 - Norfolk Law - Articles

Research sheds new light on charitable legacies New research launched today at the Law Society provides valuable insights into how solicitors can help their clients use their wills to support charities.

Commissioned by Remember A Charity and conducted by the Behavioural Insights Team (‘Nudge Unit’) and the University of Bristol, the research has examined the way that solicitors raise the issue of clients leaving money to charity in their wills.

It highlights the impact of different approaches and how these produce different results in charitable giving.

‘Writing a will is an important step in ensuring that the people, and causes, we have cared about will be properly looked after when we pass away.’ said Law Society president Robert Bourns.

‘Solicitors have a vital role to play in this process, using our legal knowledge and experience to give our clients the reassurance that their wishes will be properly carried out. This research makes an important contribution in helping solicitors think about how we give our clients the best possible support and service in the will-writing process.’

The research was conducted using randomised control trials in eight firms of solicitors around the United Kingdom. It tested a range of ways of raising the subject of charitable giving, and shows the different results that each produces.

Findings of note from the report include that: Solicitors felt able to raise the issue of leaving money to charity in discussions with their clients comfortably and appropriately Clients who were told that many people bequest money to charity in their wills were 40 per cent more likely to do so themselves when writing their first will, and Clients with families may be more inclined to leave a legacy when asked if they wanted to leave to charities that their family had previously supported or benefitted from.

Rob Cope, director of Remember A Charity, said: ‘Legacy giving has become increasingly important to UK charities in recent years, generating around £2.5 billion for good causes annually and its impact on charitable services is immense. But, despite being a highly philanthropic nation, a relatively small proportion of people leave a charitable bequest in their will.’

‘Many simply don’t realise that legacy giving is an option for them; that they can provide for family and friends and still have the opportunity of including a charity if they wish to do so. The role of legal professionals is crucial in making clients aware of all the opportunities they might want to consider when writing a will.’

The research also surveyed the public on their views about solicitors

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raising the issue of leaving to charity when helping a client write their will. This survey showed 69 per cent of people indicated that they would be happy for their solicitor to raise the issue, and 46 per cent thought a solicitor had ‘a duty’ to raise the option of such a legacy giving when discussing a will.

‘We know that there’s a big gap between the 35 per cent of people who say they want to leave a charitable legacy in their will and the around six per cent of people actually do,’ said Robert Bourns.

‘By improving our understanding of how to raise this important question, solicitors will be better equipped to assist our clients in drafting a will that properly reflects their wishes.’

Norfolk Law - Articles - 25

Leave the legacy of life, make a gift in your Will to East Anglian Air Ambulance.

Leaving a gift in a Will is easy to do and can make all the difference to our life-saving service.

S

ince our launch in 2000 the East Anglian Air Ambulance has attended over 20,000 incidents in our region. Our mission is to provide the best possible outcomes for people unfortunate enough to be involved in incidents or medical emergencies. Your legacy can help us change what may be someone’s last day, to merely their worst day.

www.eaaa.org.uk Tel: 01603 485174

e a st pa r k

communications PRO F ESSIONA L COMMUNICATION FOR PROFESSIONALS 0151 651 2776 www.eastparkcommunications.co.uk

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Norfolk Law - Articles - 27

Book Review: Legal Risk Management, Governance & Compliance of the triumphs and disasters resulting respectively, from triumphantly good -- or disastrously bad -- risk management practices. The salutatory lessons in every chapter amply illustrate what -- and what not to do -- in planning and implementing an effective risk management strategy.

The book kicks off with the biggest and most compelling case study of them all – one with world changing consequences and yet to be resolved: Britain’s momentous decision by referendum to exit from the European Union.

Editors Stuart Weinstein and Charles Wild, together with Matthew Whalley, refer to it as ‘Brexit and Legal Risk: a Case Study in the Making.

It is fair to say that each of the case studies covered holds its own special fascination. Take for example, the scandal of FIFA and the high-profile investigations concerning its governance in which corporate governance is of course, the key issue. Analytically discussed here is the intervention by the U.S. Department of Justice in the form of a 47-count indictment against fourteen Defendants (including one at the top of the tree).

Interdisciplinary Case Studies from Leading Experts Consulting Editors: Stuart Weinstein and Charles Wild ISBN: 978 1 90941 651 2 Globe Law and Business www.GlobeLawandBusiness.com GLOBAL BRANDS: CASE STUDIES ON RISK MANAGEMENT, GOVERNANCE AND COMPLIANCE – THE LATEST TITLE FROM GLOBE LAW AND BUSINESS An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Anyone involved in risk management – and who isn’t these days -- should get this book. In this case, to be precise, the area under scrutiny is legal risk management, together with governance and compliance, as the title indicates.

Published recently by Globe Law and Business, this is a collection of articles by internationally recognized experts on carefully selected case studies -- each based on rigorous research -- and each a riveting and often sobering narrative

The further discussions on compliance issues include an article on aviation safety considerations, including flight path monitoring, flight into terrain (FIT) and approach and landing (ALA) accidents which, say the editors, ‘have been targeted as being amongst the primary killers in the aviation world.’.

(Better not read this if you are planning to fly anywhere any time soon).

Compliance issues also arise in the terse and information-rich discussion of the case of the Attorney General of the State of New York v Barclays Capital Inc., a complex matter involving technology-based marketing of securities in contravention of an anti-fraud statute known as the Martin Act. The article describes the ramifications and the consequences, not to mention the eventual costly outcome.

With its focus on cases involving big international brands and big money -- and the resulting diverse array of insights and revelations, the book should prove an eye-opener to practitioners, particularly international lawyers and indeed anyone involved in the management of legal risk in both the private and public sectors and the non-profit sector as well.

Note also that the book is intended as a case study companion to Globe’s previously published bestseller: ‘Legal Risk Management, Governance and Compliance: A Guide to Best Practice.

The publication date is cited as at 2016 .

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28 - Norfolk Law - Articles

Annual Bar Conference and Young Bar Conference 2016 Saturday 15th October 2016 at Westminster Park Plaza, London A short review by Phillip Taylor MBE, Richmond Green Chambers

ONLINE COURTS

A FUTURE BASED ON DIGITAL PROCESSES

The Conference reports would be incomplete without a generous mention of Michael Briggs and his two reports on online courts: they will happen and things will be different. The final version of the Briggs Report is now with us and its content was a major talking point in the coffee area (amongst other things, of course).

Phew! It is over now but what a lot was crammed into the hectic day.

The figures speak for themselves: 590 attendees; 23 specific sessions from Brexit (of course) to online courts and dispute resolution; 22 exhibitors (all the usual suspects in attendance); the awards and the excellent winners; and the launch of the “Wellbeing at the Bar Portal”.

In addition, for all those interested there was the Conference hashtag #BCYBC16 which I did try to use but became baffled quite quickly, as I did with Twitter (as usual).

THE CONFERENCES

We have a way to go with full online implementation but the recurring theme (and it is not a platitude) of online change “to improve access to justice” which will “strengthen rather than dilute the rule of law” will be reality much quicker than we think if Fulford is to be believed: and I do believe him because we seem to have made palpable progress this year after a period of digital stagnation.

The one thing about both the main Conference and the Young Bar Conference is the continuing amount of choice available which gives attendees valuable variety of what to participate in. It aims, and succeeds, in catering for a very wide topic range with the ‘break-out’ specialist sessions when we are released from the full gathering.

Our future is in digital processes taking the judge to the user and, no, I don’t subscribe to the gloom of my colleague, Richard Susskind, because it is never the end of lawyers… only a new digital beginning where the rules will be rather different sooner rather than later. And I bet they said that with the Judicature Acts 1973-5 all those years ago!

The introductory sessions contained all the information we were expecting and the Bar Chairman, Chantal-Aimee Doerries QC, painted a most balanced picture of where we are today with the biggest and most pressing issues barristers face. Chantal has done a great job this year and was confronted shortly after the Conference with more headline making when the Lord Chancellor was criticised for not given sufficient support to the Judiciary over the little matter of use of the royal prerogative.

Thank you to all for a most invigorating Conference season this year, Brexit or no Brexit, as we are at a legal turning point.

And the Chairman of the Young Barristers’ Committee, Louisa Nye, gave us a particularly impressive performance at a most troubling time for younger counsel covering her two themes: technology and Brexit. We could not get away from either subject then, or now as we enter 2017.

TAKING THE JUDGE TO THE USER Summing up this 2016 Conference is quite simple because the dominant topic throughout for most of us is the changing technology and the current upheavals taking place. For me the two most succinct contributions came from two senior Lord Justices of Appeal: Adrian Fulford and Ernest Ryder.

One can only scratch the surface in a short appreciation of this year’s Conferences but these two appeal judges hold much of the responsibility for the immediate future of the Bar. They are both at the forefront of dealing with ‘computerisation’ or ‘digitisation’ if you prefer, of our systems to bring the legal profession up to date for the 21st century. And it was to their speeches that many will turn, not just at the Conference but afterwards as we grapple with the greatest changes since the Judicature Acts.

There was much to commend the 2016 Conferences by way of basic current information, and the frank exchange of views from the specialist sessions where the past lack of digital investment remained a common observation. It is to be hoped that 2016 which be a turning point for the Fourth Industrial Revolution we have just entered and the fears for the future eased by what we heard at Park Plaza.

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New Associate Appointments for Capron & Helliwell Capron & Helliwell Solicitors, with offices at Stalham and Wroxham, have appointed two new Associates.

Richard Tinkler is based in the firm’s private client department and Wendy Brighton is based in the firm’s family and matrimonial department and also deals with civil litigation matters.

Liz Collyer, Partner, commented: ”We are delighted with the new appointments and Wendy and Richard will have a role in the future development of the firm”.

The firm, which has been based in the Norfolk Broads area for over 60 years, recently acquired Lawrence Wood Solicitors in May 2016, and continues to serve clients in the Norfolk Broads and Norwich and surrounding areas.

Legal advice and Representation EA Law - East Anglian Chambers is a set of barristers providing expert legal advice and representation to clients in courts and tribunals across the nation. As a team of 48 barristers with extensive experience in a range of legal specialisms and offices in Ipswich, Norwich and Chelmsford we have the ability to advise and represent clients wherever they are involved in a legal dispute.

In 2016, we welcomed the addition of eight new members either as experienced practitioners or upon successful completion of pupillage in areas such as family law, personal injury, employment, crime and planning. A number of our members sit as part-time judges in the courts or tribunals, demonstrating their level of skill and experience in their chosen areas of law.

The barristers are supported by a team of dedicated and dynamic clerks who will be your first point of contact and who ensure that EA Law - East Anglian Chambers maintains its outstanding reputation and high levels of service and success for clients.

For Solicitors For Individuals For Business

If you would like more information on EA Law - East Anglian Chambers or to speak to one of our barristers, please contact us on 01473 214481 to speak to our clerking team who will assist you.

www.ealaw.co.uk • Norwich • Ipswich • Chelmsford

A Recently These

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Norfolk Law - Articles - 31

Cyber Crime – What is our exposure?

For many Law firms across the UK, the first quarter of 2017 will be a time for budgeting and reviewing the opportunities and threats presented to the firm. One such threat which continues to be reviewed by many firms is the risk of a “Cyber-attack”.

Look at the period of Insurance and whether it covers prior incidents. Malware and other Viruses can sit in your systems for weeks, months or even years. Have your systems already been breached? How would you know? Look for retroactive cover. This would give you the comfort that the unknown is covered.

The threat of a Cyber incident is current and it is real. Should you become a victim of an attack it will have a financial impact to your business, so why not hope for the best, prepare for the worst!

In our opinion relying on your Professional Indemnity to respond appropriately to a modern Cyber-attack may not be the best approach as the policy was not designed to respond in this way.

A specialist Cyber insurance policy should be considered and potentially structured to sit as First Response or Primary Layer cover to not only first party claims but also third party, if possible.

Whilst we can’t always predict the future, we can plan and make preventive steps. Dependent on your attitude to risk, the inevitable cost to your business would be either pre-emptive or reactive:Pre-emptive; • Cyber Crime Insurance Premium?

• IT Protection Cost?

• Fraud Prevention Training?

Reactive: • Cost of IT Specialists??

• Cost of Ransoms through Ransomware??

• Cost of Reputational Damage??

• Cost of Business Interruption??

Each of the above have a varying financial impact, however it is only the pre-emptive measures that you can financially control.

The fact remains, most Law Firms are dependant on their IT providers to ensure they have adequate security, but do they guarantee support if your systems are breached? Is it complimentary, or would they charge? We have seen scenarios where a firm has to spend tens of thousands on recovery. The effort and, most crucially, the time involved to retrieve, repair and cleanse your system could be severe.

Should you take the decision to transfer some of the risk via a Cyber insurance policy, it is vitally important that you are fully aware of exactly what is covered and, crucially, what needs to happen to “trigger” that coverage. There are various policies within the market-place, not all necessarily provide the protection the policyholder believes they do.

Certain Cyber insurance policies are structured to offer a suite of breach response services that are so crucial when the firm falls prey to a Cyber incident. The policies will pay for the IT forensic investigation costs needed to determine what information has been compromised and look to remedy the problem. Furthermore, there is also the support of a PR company. They serve the purpose of helping the firm manage any adverse media that may occur – this is becoming far more pertinent in the ever-increasing social media world in which we live.

Access to specialist legal advice should also be available. This will help in the process of deciding whether or not you should notify affected clients, the regulator and the police. Extending Privilege to the proceedings is vital, as well as preserving evidence for any future criminal investigation.

Have you asked yourself these questions?:• Are you ready for a breach – do you know how you’ll respond?

• Do you have a Business Continuity Plan and a Cyber Plan – have you tested it?

• Have you considered what to do in the event of a ransom demand?

• Would you know what to do to preserve the scene ahead of any police criminal investigation?

• Do you know how the GDPR will affect your business in 2018?

At the other end of the size scale is the ongoing “phishing” and “whaling” fraud through the use of Social Engineering which continues to burden finance teams in all organisations.

Professional Service firms have suffered heavily from this type of attack vector. This was highlighted by a recent survey undertaken by the UK accountancy firm, Hazlewoods. The survey concluded that “phishing attacks” against professional service firms were up 40% in the past 12 months.

Cover for Cyber theft of money from “phishing” and “whaling”, such as highlighted above, is still available from some Cyber insurers however it is generally sub-limited and remains under review.

With all of these questions, you should be seriously considering purchasing a Cyber insurance policy. At the very least, you should complete a Cyber insurance Proposal Form, as it would provide a good gap analysis to your business.

Lee Catling Vice President, Professions/Risk Solutions A division of Lockton Companies LLP

Lee provides day to day guidance on all issues affecting Law firms from PI insurance to other related topics. LC has over 25 years’ experience in the industry having come from the Solicitors Indemnity Fund. Lee joined Lockton, formerly Alexander Forbes in 2003 in the Professions Division and is a Vice President with the Solicitors team. Specialist Experience - Professional Indemnity, Cyber Liability, D&O, Keyman, Contingency Insurances.

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32 - Norfolk Law - Articles

Insurance market one step ahead of fraud problem A recent high profile property fraud case highlighted the need for an insurance solution to protect innocent buyers, yet a policy offering that cover already exists.

In the case of P&P Property Ltd v Owen White & Catlin and Crownvent Ltd (t/a Winkworth), the judge ruled in favour of the conveyancers and the estate agents after a property was sold by a fraudster to property developers P&P Property Ltd. The fraudulent sale unravelled when the true owner arrived at his property to find the kitchen being torn out, by which time the perpetrator had scarpered with the funds from the sale.

insurance market should find a solution to protect buyers.”

In fact, Countrywide Legal Indemnities, the UK’s leading legal indemnity intermediary, already offers just such a solution in the form of its Secure Conveyancing Insurance Policy (SCIP).

The policy, which was launched in 2011, covers buyers and lenders against losses arising from property fraud, as well as a host of other unidentified title defects.

The High Court Judge cleared the fraudulent seller’s solicitor firm of an alleged breach of trust, saying: “The checks that are routinely carried out by solicitors on the identity of the client are designed to reduce the risk of fraud – it’s not possible to eliminate it entirely.”

Kevin Richardson, Underwriting Development Manager of the Norwich based firm said: “In spite of all the extensive checks solicitors make, there are title issues that are practically impossible to anticipate, such as fraud. While insurance isn’t a preventative measure to stop fraud occurring, when coupled with the usual conveyancing checks, the protection provided by SCIP offers those involved in the conveyancing process an additional degree of comfort.”

Following the ruling Mills and Reeve LLP, who represented the estate agency Winkworth, commented that fraud is “an area where the

For more information about Countrywide’s SCIP, call 01603 617617, email enquiries@cli.co.uk or visit cli.co.uk.

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34 - Norfolk Law - Articles

2017 - The Unsustainable Care Sector For care providers with most of their client base in the private, fee paying sector, the success of their care business is in their own hands. If they provide services their clients want at a price that is agreed then they will flourish.

If their service falls below their client’s expectations then the business will eventually fail as there will be other providers eager to take their customers on.

Once again in the last few weeks UK newspapers have the story of another domiciliary care agency pulling out of a local Government contract for home care. The reason quite simply is that the rates paid to the care provider do not cover the costs of providing care in a large rural area. (In this latest area, this is the second care provider to hand back their council contract).

The result is that care workers have uncertainty of employment and they have to hope a new provider will be found who may take them on. The recipients of the care service, many of whom will be older people, will have an anxious and unsettling time and will need to go through the aggravation of being ‘signed in’ to a new provider, no one wins.

Regularly, I receive details of domiciliary care agencies up for sale. Care organisations who are getting out of the market place.

One sales sheet sent a couple of weeks ago also gave information about how long the agencies on the sheet have been up for sale, not sure why this was published as it sent a clear message that those care organisations that have most of their turnover based on Government subsidized care packages are not selling.

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If they respect and treat their care workers well, pay them appropriately then they will attract and retain them. If they only have low pay rates to offer to their care workers, recruitment and retention of staff is difficult.

Many Government subsidized clients are suffering as they receive a lower quality level of care e.g. missed visits, too many different care workers in their home, reduced hours of care, untrained care workers, care workers without statutory checks being made, etc.

Short cuts are taken, care workers leaving a few minutes early so they can get to their next client, the visit to each older or disabled person becomes task orientated only, no time to have a chat, the true quality of care drops, care workers become demoralised at the low pay rate and conditions of work and care homes find they cannot afford to take state funded residents, which leaves many with empty beds which are a financial liability.

The care system’s problem is financial and unless a financial solution is found, as the aging population increases, the situation will continue to get worse. The NHS and Community Care Act 1990 heralded a new beginning of optimism for both

older and disabled people but this optimism has now long gone.

Eligibility for state funded care now means that people who used to receive some care if they had low or moderate care needs are now unlikely to be deemed eligible to receive it. Some individuals who had been assessed as requiring a number of hours of care have now been re-assessed and as result the hours of care provided reduced.

The lack of sufficient funding in the care sector is leading to a second class care system for many whilst those fortunate

enough to be able to pay for their own care can purchase the quality services of choice.

Ring fenced ‘care’ taxation has been offered as a possible solution and suggestions are made that families need to contribute more towards taking responsibility for their older members both in practical and financial terms including contributing to the cost of their relative’s care service.

The reality is that somewhere a solution has to be found.

Angela Gifford, MD Able Community Care