Pears Magazine issue 40

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Issue 40 Autumn 2021

WLS AWARDS SUCCESS P.16 Patricia Beeching, Winner of the Lifetime Achievement Award

ALSO: • SME Solicitors Race for Life 2021 • Costs Orders by the Back Door • Children and Contributory Negligence & much more...

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This edition... Issue 40 Autumn 2021 4 5 6 8 8 9 9 10 10 11 11 12 12 13

Committee Members and Member Firms President’s Introduction Costs Orders by the Back Door SME Solicitors Race for Life 2021 in aid of Cancer Research New Senior Partner for HCR Silverback Law Hike – Raising Money for Molly Olly’s Wishes Two Newly-Qualified Solicitors at Parkinson Wright HCR Take Top Spot in M&A Deal League Table Expertise Spreading with Growing Teams at HCR Law Firm Expands Private Client Team QC Appointed as Youngest Ever Leader of Midlands Circuit “Fire and Re-Hire Schemes” Risk Costing More Than They Save HCR Hewitsons Merger Builds on Success of Agriculture Team Law Firm’s Family Team Expands after Growth in Demand

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Covid Bounce Back Loans a “Debt Mountain” for Businesses Personal Guarantees: Watch Out for the Loopholes WLS Awards Success Happy Moments, Hot Topics and a few Butterflies... Children and Contributory Negligence: A Summary of the Law Hybrid Working Policies – Tips for Employers Landmark Moment for Gifts in Wills Levelling the Legal Services Playing Field Welcome to Winterfold Introducing Clio Grow How Healthy is Your Legal Website? Border Wars Expert Witness Institute Online Conference 2021 Flood Data Insights



Simon Castell

October 2021

Accounts Tony Kay

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Committee Members

Visit our website: or follow us on Twitter: @worcslawsociety

Charlotte Perry President Parkinson Wright

Nick Hughes Committee Member HB 121 Solicitors

Patricia Beeching Committee Member Family Law Consultant, Hallmark Hulme Solicitors. Law Society Council Member for the Welsh Marches.

Andrew Chandler Committee Member mfg Solicitors LLP

Priya Tromans Committee Member Barrister, St Ives Chambers priya.tromans@stiveschambers.

Lara Wilkinson Committee Member Harrison Clark Rickerbys

John Aldis Committee Member Barrister, St Philips Chambers

Laura Osborne Admin and Events Headturner Search

James Osborne Immediate Past President Treasurer Harrison Clark Rickerbys

Luke Crocker Committee Member Bradley Haynes Law

Joeli Boxall Editor of Pears Parkinson Wright

Darryll Thomas Committee Member mfg Solicitors LLP

Worcestershire Junior Lawyer Division Victoria Zinzan Trainee Solicitor mfg Solicitors LLP Chair

Georgina Hunt Trainee Solicitor Harrison Clark Rickerbys Vice Chair

Rhiannon Phelps Trainee Solicitor Hallmark Hulme Social Secretary rhiannon.phelps

Olivia Jubb Paralegal Harrison Clark Rickerbys Secretary

Lucy George Trainee Solicitor mfg Solicitors Social Media Secretary

Zoe Webster Trainee Solicitor Hallmark Hulme Social Secretary

Charlette McDermott Paralegal Bradley Haynes Treasurer

Lucy Harrold Trainee Solicitor mfg Solicitors Social Media Secretary

Marina Akram Solicitor Silverback Law Social Secretary

Daniel Maiden Trainee Solicitor Parkinson Wright National Representative


President’s Introduction

Welcome to the Winter edition of the Pears Magazine. The Annual Worcestershire Law Society Awards took place on 10th September 2021 attended by 180 at the beautiful Grafton Manor. What an amazing night celebrating excellence in the legal profession.

The committee received a high number of nominations this year and shortlisting was a very difficult task. A huge thank you to our interview panellists; Kate Bould, Index PI; James Osborne, Partner and Family Solicitor at Harrison Clark Rickerbys; Douglas Wotherspoon, Senior Law Lecturer at Worcester University; and Toby Hooper, Retired Judge. Not an easy task this year and your time was greatly appreciated. Congratulations to all those who won an award on the night, all of which were very well deserved! An extra special mention to this year’s Lifetime Achievement Award winner, Patricia Beeching. An award recognising a significant contribution to the County’s legal profession which Patricia has done so for over 40 years.

So what is next for 2021? The committee are continuing our charitable endeavours working closely with Onside and we can confirm that so far in 2021 we have raised over £2,000. Save the date for our annual quiz night and Christmas party will be circulated shortly and we look forward to seeing more of you at our in person events throughout the rest of the year. If there is anything either I or the committee can do to assist you, please do not hesitate to let me or a member of the committee know.

Charlotte Perry President, Worcestershire Law Society 2021-2022


“Costs orders by the back door” or an essential aspect of the assessment of needs? The approach to liabilities for costs in financial remedy

Juliet Allen

It is well established that the court’s award in financial remedy will be the higher of that reached by the application of the “sharing” principle and that reached by application of the “need” principle.

But where one party ends up with significant liabilities as a result of the cost of the proceedings, how are those to be treated in both needs and sharing cases in order to arrive at a fair result? In a “sharing” case this issue is not so vexed. Each party will by definition be left with sufficient resources to discharge their respective liabilities for costs from their postdivision share of the assets, and the “general rule” set out at FPR 2010, r.28.3(5) that “the court will not make an order requiring one party to pay the costs of another party” will apply. Each party will simply be expected to meet their costs liabilities from their postdivided share. There may of course need to be some re-balancing in those cases where one party was able to meet their legal costs as they went along from capital resources whilst the other had to have recourse to debt, particularly where that takes the form of expensive litigation loans at high interest rates. In SJ v RA [2014] EWHC 4054 (Fam) and J v J [2014] EWHC 3654 (Fam) it was held that where one party has to take on a litigation loan with high interest rates, those costs should be regarded as a debt of both parties to be discharged from matrimonial assets. Mr Nicholas Francis QC said: “Whilst the wife has had to borrow from Novitas at a cost of 18% pa, the husband has been able to borrow freely from XY to fund his own costs. This is hardly what one can call a level playing field and I say from the outset that I regard the wife's loan costs as a debt properly to be recorded as a debt for which she and the husband should both be responsible, at least until such time as anyone might persuade me that the general rule as to costs should, for some reason, not apply to this case. There may very well be cases where the husband should bear the cost of the high interest rates if he has forced his wife to borrow to fund her costs when he could have funded them himself.” However those types of issues in respect of litigation debts in sharing cases are readily adjusted for and thereby easily resolved within a sharing award.


A far more thorny question is how to achieve fairness in a “needs” case where one party has accumulated significant liabilities as a result of the cost of the proceedings (whether in the form of commercial borrowings, litigation loans, credit cards or a large outstanding bill with their solicitors) and seeks a needsbased award which includes a capital sum to discharge those liabilities. That approach to liabilities for costs in “needs” cases has long appeared controversial in practice, with the argument often raised that allowing such additional capital provision would be tantamount to a “costs order by the back door” and should not be permitted. But to make no provision for liabilities for costs in a needs-based award will usually mean that the receiving party must use some of their housing budget to meet their costs debts, resulting in them having insufficient capital with which to re-house at the level found by the court to be required to meet their housing needs. What then is the fair approach? This was the issue considered in two recent Judgments: the Court of Appeal decision on 30 July 2021 in the case of AzarmiMovafagh v Bassiri-Dezfouli [2021] EWCA Civ 1184, and also during the summer of 2021, a Birmingham appeal heard by His Honour Judge Mark Rogers on 17 May 2021, in which I appeared for the appellant wife, reported sub nom LF v DF (Financial Remedy: Appeal: Costs Debts in a Needs Case) [2021] EWFC B50. Judgment was not handed down until 23 August 2021, enabling HHJ Rogers to refer to the decision of the Court of Appeal in the Azarmi-Movafagh case in a postscript to his Judgment. LF v DF (Financial Remedy: Appeal: Costs Debts in a Needs Case) [2021] EWFC B50 concerned an appeal by the wife against a financial remedy order. The District Judge had given the wife an award of £475,000 to meet her housing needs which were assessed at £450,000 for a home and £25,000 for “extras” such as costs of purchase, carpets, curtains, costs of moving etc. However the District Judge had declined to include any provision within his needs-based award to enable the wife to meet her liabilities for costs, which were significant and stood at c.£170,000, accepting the submission made on behalf of the husband that to make such award would be a “costs order by the back door.”

Before HHJ Rogers on appeal, one of the grounds of appeal was that the Judge had been wrong to make no provision for the wife’s liabilities in his needs-based award, and indeed the appeal was allowed on that ground. HHJ Mark Rogers held that the effect of the Judge’s exclusion of the costs liability had been to reduce the capital available to the wife for housing by about 37%, contrary to his own assessment of her housing need. The Judge’s approach to the calculation of the needs-based lump sum had therefore been wrong in law. The appeal was allowed and the lump sum of £475,000 was set aside and replaced with an award of £600,000, giving the wife a sum of £125,000 towards her costs liabilities of £170,000. Rejecting the argument that this type of award is in effect a “costs order by the back door”, the Judge found “I am quite satisfied that an unmet costs liability on an asset schedule is not the same as an inter partes costs order. To suggest, as the Judge did confidently, that an award which incorporated the discharge of an existing liability was a backdoor costs order is, in my judgment, wrong. Costs orders are made in defined circumstances pursuant to the code to be found in Rule 28.3 of the Family Procedure Rules 2010. As everyone knows, the starting point is that there should be no order but that may be departed from appropriately where the conduct of the party justifies it…. A costs liability on a schedule, however, is simply an obligation to repay a debt and so falls for consideration under section 25 (2) (b) of the Act, as well as being one of the circumstances of the case in particular if that is bound to have an effect on the welfare of any relevant child.” The Judge also rejected the idea that this type of debt is “non-matrimonial” in nature, stating “In my judgment, a debt incurred in the inevitable process of unravelling a failed marriage has to be looked at carefully… … even if the Judge is right, he appears simply to have excluded the sums in question from consideration on the basis of their nonmatrimonial status. This is a needs case. Just as with non-matrimonial assets which may be “invaded” to produce a fair outcome in a needs based award, so may non-matrimonial liabilities be taken into account in a needs case if to exclude them would produce unfairness.” However HHJ Rogers also found that the wife had taken a disproportionate approach to the litigation and found that an award of £600,000 which would leave her c.£50,000 short of the

sum required to discharge all her liabilities, was fair in all the circumstances of the case. There are interesting passages in the Judgment which consider the question of whether a finding of litigation misconduct is required before the court will refuse the recipient of a needs award a sum to discharge their costs debts. Plainly that discussion ties in with the clear statutory intention in the separate but parallel context of inter partes costs orders in financial remedy: FPR PD 28A r 4.4 provides that when considering litigation conduct for the purposes of making an award of costs pursuant to rule 28.3(6) and (7) , “the court will take a broad view of conduct and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court.” In the case of Azarmi-Movafagh v BassiriDezfouli [2021] EWCA Civ 1184, the Court of Appeal consisting of King, Moylan and Newey LJJ allowed a second appeal in a case marked by “extreme positions and a degree of bitterness”, leading the parties to engage in a course of litigation “which became an exercise in self-destruction,” the Court noting that the parties’ costs had become so disproportionate relative to the assets that it had become “hard to achieve an outcome in this uncomplicated needs case which will not leave each of the parties profoundly discontented.” The Judge at first instance had made an order providing the husband with funds sufficient to buy a modest property and to pay off the majority of his costs debts. That decision was appealed by the wife on the basis inter alia that the husband should bear his own costs debt. The first appeal was heard by Judd J who allowed the appeal and substituted the outright payment of a lump sum for the husband’s costs with an order that a charge in favour of the wife for the same sum must be secured on the property the husband would in due course purchase. The issue before the Court of Appeal related solely to the approach to the issue of the appropriate treatment of any outstanding costs incurred by the recipient of a needs award. The wife was a barrister and had been the breadwinner during the marriage, but derived much of her income from renting out properties she had owned prior to the marriage. The wife also owned the former matrimonial home. The total value of the assets was £2,347,000 or £1,781,389 after deduction of the wife's debts of £300,000

and the husband's debts of £257,000. The husband had no assets, was in receipt of universal credit and living in a rented one bedroom flat. There was a child who spent time with both of his parents. The first instance Judge concluded that this was a 'needs' case and that the husband needed £400,000 to buy himself a property which would be suitable for the child to come and stay. The Judge ordered payment of a further £25,000 to cover costs of purchase and the purchase of a car plus an additional sum of £200,000 towards his costs making a total lump sum of £625,000. The costs included costs relating to the financial remedy proceedings but also criminal and children act proceedings costs. The Judge at first instance found that it would be wrong to say that the costs of the criminal proceedings and perhaps some of the costs of the children proceedings should not be the husband’s responsibility from his own resources and awarded the sum of £200,000 towards his costs which, it was held, would “go a long way to dealing with them” although would not, as was recognised by the Judge, fully discharge all his litigation debts in their entirety. The appeal of the first instance decision came before Judd J. The final ground of appeal was that the first instance Judge had been wrong to have added the sum of £200,000 for the husband's debts, which award was “tantamount to an order that she pay most of his unassessed costs”. Judd J concluded that there was force in that point. As would be expected, there were no orders as to costs in the Children Act proceedings and there were no proper grounds upon which a costs order could have been made at the end of the financial remedy proceedings. Whilst the Judge acknowledged that it would be wrong to say that the costs of the criminal and some of the children proceedings should not be his responsibility from his own resources, the order he made in fact allowed the husband to recover very much the lion's share of his costs from all the proceedings. Judd J therefore allowed the appeal to a limited extent. She did not interfere with the overall award of £625,000, which sum should still be paid so that the husband would not be forced to live in unsuitable accommodation and could repay both the litigation loan and the bulk of the money owing to his sister. However Judd J held that the £200,000 referrable to his costs should form a charge on the property bought by the husband 'repayable to the wife on the husband's death, remarriage or permanent cohabitation'. The Court of Appeal considered the proper approach to costs in needs cases. Whilst the 'no order' principle is the starting, and usually the end, point, the court does retain the jurisdiction to make costs orders in financial remedy proceedings pursuant to FPR r

28.3(6) 'because of the conduct of a party in relation to the proceedings (whether before or during them)'. However the Court of Appeal held that it is undoubtedly the case that there is no requirement for the first instance judge to carry out an analysis by reference to the principles applicable to costs orders when making a needs-based award: such an approach would not be compatible with the wide discretion of the judge to determine the extent of a party's needs and the extent to which they should be met. In cases where it is argued that an order substantially in excess of the sum required to meet a party's assessed needs is sought in order to settle the outstanding costs (or debts referrable to costs) of that party, the judge should: • Consider whether in any event the case is one in which consideration should be given as to the making of an order for costs under FPR 28(6) and (7) in particular by reference to FPR PD 28 para 4.4; • Whilst not carrying out a full costs analysis, the judge should have firmly in mind what the order which they propose to make by way of additional lump sum to meet a party's costs would represent if expressed in terms of an order for costs. To do this would act as a cross check of the fairness of the proposed order. • The fact that the proposed award might on the facts of a case amount to the equivalent of an indemnity costs award may be a powerful argument and is undoubtedly a matter which the judge should take into consideration, but it is not a cap on the judge's discretionary power to make such award as he or she determines will meet the needs of one of the parties. • Similarly, the fact that one or other party has run up unreasonable costs will be taken into account, but does not act as an absolute prohibition on the making of an enhanced lump sum. The Court of Appeal allowed the second appeal, overturning the decision of Judd J on the first appeal, and holding that the order made at first instance which allowed the parties to achieve a clean break could not be regarded as being outside the wide discretion of the first instance Judge. This decision will, it is anticipated, put firmly to bed the argument that making provision to discharge outstanding costs debts in a needs case is a “costs order by the back door.” The approach is far more nuanced than that. The litigation conduct of the recipient in particular is likely to be a highly relevant consideration. But these cases clearly signify that it is not permissible for costs liabilities in needs cases to be ignored such that the housing budget of a party – or a child of the family – ends up being significantly impacted by the existence of these unmet liabilities. Juliet Allen


News News News News News News SME Solicitors Race for Life 2021 in aid of Cancer Research

2021 has been a year in which cancer has touched SME in a big way so a team of us is trying to raise as much money as we can to help with research into this awful disease. Although the events of the year have been distressing and tragic, it is clear that the improvements in cancer treatment brought about through research have helped to develop the treatment received in both of our cases. There are eleven of us of varying ages and in various stages of fitness who entered both the Worcester 10K and 5k run/walk events on 17 October 2021.

Early in 2021 we were informed that one of our former partners Martin Parry, who had been appointed as a District Judge twenty years ago and who had been sitting in Worcester with distinction, had suffered a re-occurrence of cancer related to a melanoma diagnosed a number of years ago. Over the years Martin had kept the disease at bay following treatment but this time the diagnosis was that the illness was highly likely to be terminal. All too soon it became clear that his care would be palliative and Martin passed away in St Richard’s Hospice on 26 July this year. In keeping with his style he designed his own moving but amusing funeral service which reminded all present that the effects of our lives and our personalities can have an effect on others even when we are gone.

At the end of 2020 Sam Lloyd, our Head of Wills & Probate, received the news that her son Edward, aged 12, was suffering from a specific bone cancer. Much of the year since then for Edward and his whole family has been taken up with radiotherapy, chemotherapy, innumerable blood transfusions, travel to and from hospital and other care culminating in an operation to remove the affected part and repair the site by a graft. Edward finally “rang the bell” to signify the end of his hospital treatment at the beginning of September. He has however needed ongoing treatment since then, so his fight goes on.

Please try to help us to add to the funds in aid of Cancer Research. We are all too aware that so many of us receive sponsorship requests for all sorts of things all of the time so we do not wish to cause the inevitable “how much” question that arises. We are asking a wide number of people whether clients or more widely known individual friends or friends of the firm would sponsor us for just £2.00 each. Larger donations are of course welcome but by spreading the requests as widely as possible we hope that we may maximise our sponsorship power. Each member of our team has a £50 nominal target so £500 in all but we aim to go as far beyond

In Tribute to Martin Parry (1956-2021)

that as we possibly can. My own sponsorship link is set out below. Please use it and help us to kick cancer to the kerb. Thank you for taking the time to read this. Ian Stirzaker SME Solicitors page/ians-race-for-life-14074755

New senior partner for Harrison Clark Rickerbys After 32 years with the firm, senior partner Richard Knight has passed the baton to Dawn Oliver, who has been with the firm for 24 years. Of his start with Rickerbys (which merged with Harrison Clark in 2013), corporate lawyer Richard said: “I only went for an interview because my dad knew a partner at Rickerbys who was looking for someone to join their fledgling corporate department – the rest is history! The trajectory and speed of travel since we put the two firms together simply takes my breath away. “I am looking forward to being able to continue to work with some who have been clients for over quarter of a century, but to see our grandchildren and play a little bit of sport now and then!” Dawn, the firm’s first female senior partner, and a private client expert, acknowledges the rate of growth, especially since the recent merger with Hewitsons, which adds two new offices and more than 200 extra staff to HCR’s network. She said: “I’ve never known a year when the business stood still – it’s exciting beyond measure. What I most enjoy is the ability to inspire and lead junior private client lawyers who unexpectedly find it’s a very rewarding area of the law to practise in.

Dawn Oliver and Richard Knight



“I am honoured to take on the role of senior partner for the newly merged firm and I’m looking forward to meeting

News News News News News News all our staff, both old and new, around our offices. As a firm, we have a strong culture of both tradition and innovation and as senior partner I will be ensuring that continues.”

Silverback Law Hike – Raising money for Molly Olly’s Wishes Everyone at Silverback Law will be getting together to complete a 355km hike between us on the 14th November. Why 355km? This is the distance between our furthest north member of the team and the furthest south. The aim is to beat our previous years fundraising total of £1,000.00. We love and support the work Molly Olly’s do to help those in need. The Warwick-based charity supports children with terminal or life-limiting illnesses and their families. It grants wishes, helps with emotional support and it donates therapeutic toys and books to children directly and through hospitals across the UK. Throughout the 10 years that the charity has been running, it has granted more than 2,100 wishes, supported more than 15,000 children, distributed more than 12,000 Olly The Brave books to more than 70 hospitals and raised more than £3 million. We’re excited to get together this year after being apart for so long. We hope to get as many people involved as possible, including families and pets! Due to the pandemic we all had to complete last year’s event separately. However, we did manage to keep in contact through weekly team meetings/Zoom calls and even managed an online Christmas party. But it’s now time for us to get together and brave the cold! We all really enjoy the great outdoors and Silverback Law supports a healthy lifestyle. Please wish us luck as we attempt to reach our targets. Details of our Just Giving page can be found below. We really do appreciate all the support we receive. silverback-law1

Two newly-qualified solicitors at QualitySolicitors Parkinson Wright QualitySolicitors Parkinson Wright are delighted that two of their trainees have qualified as solicitors. Joeli Boxall, admitted on 1st September 2021, joins the Family department as a solicitor at our Evesham office. Elizabeth Noble, admitted on 2nd September 2021, joins the Private Client department as a solicitor at our St Johns office. Joeli joined QualitySolicitors Parkinson Wright in July 2017 as a member of the new enquiries team, joining the Family department as a paralegal in 2018. She undertook her LPC at the University of Law in Birmingham and was offered a training contract by the firm in 2019, qualifying as a solicitor on 1st September 2021. During her training contract, Joeli worked in the Family, Private Client and Conveyancing departments and has now taken the position of solicitor in the Family department at the Evesham office. Joeli says: “I am delighted to have

Joeli Boxall and Peter Lewis qualified as a solicitor after so many years of training and hard work, having started at the firm four years ago in the First Contact Team after completion of my undergraduate degree. I am incredibly grateful for all of the support and opportunities that the firm has provided me with and I couldn’t be happier to be qualifying into the Family department at the Evesham office.” Peter Lewis, Partner and Head of Family, says: “Congratulations to Joeli on being admitted as a solicitor. I am pleased that she will be staying in the family law team. Her enthusiasm and ability will enable further growth in the family law department at our Evesham office.”


News News News News News News Cyril Arridge, Managing Partner of the firm, says: “To have two new solicitors who are both well known to us and who have proved themselves as paralegals before being given training contracts is in my view the best way to develop both the people and the practice as they are known quantities who already share the “clients first” ethos of the firm. I could not be more pleased to welcome them both as new solicitors in the areas of law in which they have already become specialised.”

Elizabeth Noble and Jean Newton Elizabeth joined QualitySolicitors Parkinson Wright in September 2018 as a secretary providing maternity cover for the Litigation department and subsequently became a legal assistant in that department. She was offered a training contract in September 2019 and qualified as a solicitor on 2nd September 2021. Elizabeth obtained a Graduate Diploma in Law in 2017 and completed her Legal Practice Course and MSc in Law, Business and Management at the University of Law in 2018. During her training contract Elizabeth worked in the Litigation, Private Client and Conveyancing departments and has taken the position of solicitor in the Private Client department at the St Johns office. Elizabeth says: “After completing my LPC in 2018, I began my legal career with QualitySolicitors Parkinson Wright and I am delighted that the firm have given me the opportunity to continue practising law in their Private Client department now that I have qualified. Dealing with the passing of a loved one can be a very difficult time, and I am pleased to be working alongside our highly regarded Probate department to provide support and assistance to those that may need it.” Jean Newton, Partner and Head of Private Client, says: “Many congratulations to Elizabeth on being admitted as a solicitor. Elizabeth has shown a real aptitude to this type of legal work and will truly enhance the department and the service we are able to provide to our clients”.


HCR take top spot in M&A deal league table Client demand for mergers and acquisitions took Harrison Clark Rickerbys

Rich Wilkey, head of HCR’s corporate team nationally, said: “Coming out of lockdown, we knew there would be a high demand for business opportunities, especially given the strong equity and debt markets, and so it has proved. We’re delighted to be in the top spot and we fully expect a full pipeline of transactions during the rest of the year for our team across the country.” Experian ranks deals by volume and by value – all deals included are worth £500,000 or more. You can see the full report at https://www.experian. en/pdf/experian-miq-ma-report-ukroi-h1-2021.pdf. The firm has a number of highly successful teams specialising in individual sectors, including health and social care, education, technology, agricultural and rural affairs, finance and financial services, defence, security and the forces, and construction.

Expertise spreading with growing teams at HCR Expertise, experience and skills across the firm have been acknowledged by clients in the Legal 500 directory of leading lawyers in the UK. Rich Wilkey to the top spot nationally across the UK for the number of deals it completed during the first half of this year, a ranking echoed in the East of England and the South West, with second place in the South East, Midlands and Wales, according to Experian’s first half M&A report for the UK and Republic of Ireland. The firm advised on 113 mid-market deals in the first half of the year to top the legal volume rankings for the first time, some way ahead of their nearest rival. Working together with clients and with colleagues across the firm, to respond to the upward trend as clients look for opportunities to grow and develop in the market, HCR’s corporate teams also made the top ten in both London and the North West.


From personal tax and probate to corporate M&A work, with specialisms such as agriculture, intellectual property and IT, the firm’s teams are ranked across 46 practice areas, with 137 lawyers specifically recommended by clients and peers for the quality of service they provide. One client said of our corporate team in Worcester: “The corporate team are fantastic. The knowledge and expertise within the team rivals the inner city law firms, but the cost of the advice is significantly lower.” This theme was echoed for the employment team – the client said: “The employment team delivers absolutely first-class service which is not bettered by more expensive Magic Circle firms. The solicitors are highly expert and

News News News News News News litigation, charities, education planning and dispute resolution teams have attracted praise. Managing partner Rod Thomas said: “I am pleased to see so many teams being acknowledged for the expertise and commitment they offer clients. The firm continues to grow following the merger which brought us together with Hewitsons, and I have no doubt that that will continue.”

Rod Thomas strategically skilled…so costs are not wasted but equally corners are not cut, so the best possible outcome is achieved.” Reflecting the firm’s flexible approach to supporting clients, by drawing on expertise from across our 11 offices and all the specialisms, one client said: “For us they deal with everything from planning to employment law and their advice is always balanced, thorough and effective. They are different in that they feel like an extension of our business, a critical friend always at the end of a phone to calmly help us with whatever may have cropped up.” Across the West and East Midlands, into Wales and East Anglia and in London, our real estate, IT, insolvency, property

Law firm expands private client team as demand for wills and power of attorney grows A Worcestershire law firm has expanded its private client division following an increase in demand for services such as will writing, probate and power of attorney. mfg Solicitors has announced the appointment of Tristan Lewis as a senior associate, with Will Jones joining at associate level and the third in the trio, Sarah Ben-Tarifite, joining the team as a solicitor. Will and Sarah, both wills and estate administration specialists, will be based at mfg’s Bromsgrove offices, while Tristan, a power of attorney, inheritance tax and wills expert, will be based at the firm’s offices in Worcester.

All three will report to Giles Scott, partner and head of division. Giles Scott said: “Tristan, Will and Sarah have many years’ experience between them working with clients ranging from those in farming communities to people in care who need to arrange power of attorney and allow trusted relatives to make decisions for them. “With an ageing population across the UK, more people than ever will require some form of assistance in later life and it is vital that they make plans for this and receive the best and correct advice. “It’s partly down to this that demand for our private client services is at an alltime high and so I am delighted to be welcoming Tristan, Will and Sarah to the team during what is a hugely busy period for us.” Aside from wills, power of attorney and the administration of estates, mfg’s Private Client team also deal with a variety of tax and trusts matters and care for the elderly.

Michelle Heeley QC appointed as youngest ever leader of Midlands Circuit Promoting social mobility and inspiring women to succeed at the Bar are just two of the goals of the new leader of the Midlands Circuit, Michelle Heeley QC. The former Head of Education and Training at the Circuit will replace fellow No5 Barristers’ Chambers member Michael Duck QC, following his successful four-year term. Heeley will be looking to draw on her experience of establishing a number of mentoring and accessibility programmes, not least the Midland Circuit’s very own minipupillage scheme, as her tenure begins.

Sarah Ben-Tarifite, Tristan Lewis, Giles Scott and Will Jones

It is the latest in a meteoric rise for Michelle, who joined the ranks of silk four years ago, just sixteen years on from embarking on her career with a pupillage at No5 Barristers’ Chambers. One of Michelle’s key priorities as part of her leadership will be looking at how she can support and inspire female colleagues in realising the prospects of


News News News News News News Michelle concludes: “I have witnessed first-hand the impact that COVID has had on our industry, and the Crown Court backlog is something that is particularly distressing for everyone involved. It should be highlighted, though, that the pandemic has merely exacerbated this issue, with the root causes of the problem still needing to be addressed.” Michelle Heeley began her leadership role at the Midlands Circuit on 1st October, 2021. For more information, please visit: michelle-heeley-qc/silk/

Mishandled “fire and re-hire schemes” risk costing more than they save Michelle Heeley QC a long-lasting career at the Bar. Michelle explains: “I’m thrilled to be taking up the role of leader of the Midlands Circuit, particularly as it means that four out of the six Circuits across the UK will now be led by women. It is the first time that there has been a majority female leadership, which is reflective of the progress that has been made. “The Diversity at the Bar 2020 report by the Bar Standards Board showed that women constituted 38.2% of the Bar, yet we know of many talented women who are leaving the profession. There is clearly a long way to go in ensuring fair representation within the industry. I intend to use my position to promote greater accessibility to the Bar, breaking down barriers through initiatives such as scholarships, but also by making it more approachable. There needs to be less mystery surrounding our work if we are to encourage talent from all areas of society.” As part of her duties as Leader of the Midlands Circuit, Michelle will also be supporting existing members to promote and maintain the highest professional standards in the practice of law. This comes in the face of a number of challenges, including the backlog of cases at the Crown Court, and ongoing discussions surrounding the funding of Legal Aid.


diminished terms. However, if handled correctly it can assist employers in avoiding redundancies by varying terms and conditions. Examples of changes include trying to make sure all employees are on similar terms, removing bonus schemes or adding flexibility. Mrs Jones, who advises employers and employees across the West Midlands said: “There are very strict rules governing terms and conditions and they must not be changed lightly by employers. At the very least, any employer thinking of changing their workers’ employment contracts needs to seek advice and ensure that it is handled fairly for everyone concerned. “Many businesses will begin to consider their options now that the furlough scheme has come to an end. This means there may well be redundancies looming unless businesses can recover enough to cope without that support. “Also, the way many businesses work may have changed with the growth of home working and they may wish to amend their contracts to reflect these changes. “But what businesses cannot do, which some have already done, is just impose a change on employees. There has to be meaningful consultation and the situation must be handled carefully and consistently across the business.

Kate Jones A Worcestershire employment lawyer has warned the region’s businesses not to follow in the footsteps of major firms that have implemented harsh ‘fire and re-hire schemes,’ unless it is a last resort.

“Fire and re-hire is nothing new. It should be a last resort if consultation has failed. Although it isn’t illegal, it is vital that the correct procedure is followed. If not, it could be more costly, both financially and reputationally than leaving things as they are.”

Kate Jones, an associate at mfg Solicitors, has alerted bosses to be careful of the heavily-criticised move which has seen bosses attempt to change the terms of employee contracts, particularly when struggling to cover the heavy losses suffered during the Covid pandemic.

For further advice businesses can contact Mrs Jones through kate.jones@

‘Fire and rehire’ is nothing new but has drawn attention from the media and Government to criticise those employers who are trying to change employment contracts to replace them with

Agricultural legal specialists on both sides of the firm’s recent merger are delighted that each other’s complementary strengths will result in wider, stronger, and deeper levels of


HCR Hewitsons merger builds on success of agriculture team

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Esther Stirling, Gareth Williams and Denise Wilkinson legal expertise being available for their clients and the sector as a whole. Denise Wilkinson, head of the agriculture and rural affairs team, said: “Although we have more sector specialists post-merger, we share a common focus - providing tailored advice to each client, informed by a real understanding of their individual circumstances and the agricultural industry. “I am delighted that, for former Hewitsons clients, the merger adds more depth and experience particularly in agricultural dispute resolution and advice on regulatory, health and safety and environmental matters.” Esther Stirling, head of agricultural dispute resolution, also welcomed Hewitsons’ strong track record of supporting those involved in the rural economy. She said: “I particularly like the fact that, as a team, we can offer advice to anyone in the sector, and on everything that they might encounter day to day plus all the essential strategic planning that farmers

and rural landowners require.” Gareth Williams, head of agricultural property, said: “Our clients include everyone from farmers, landed estates and institutions, landed charities and those who own rural property for leisure or investment purposes. We can offer advice based on years of specialist knowledge both relating to both the law and the rural businesses environment. As well as wrestling with the post CAP agricultural policies, hot topics for our clients include carbon capture, biodiversity net gain and renewables for landowners.” The growing team is spread across all 11 of the merged firm’s offices with centres of excellence in Cambridge, Cardiff, Hereford, Northampton and the Wye Valley.

Law firm’s family team expands after growth in demand A Worcestershire law firm has expanded its family division amid rising demand for its services including advice around

cohabitation and pre-nuptial agreements. mfg Solicitors has welcomed newlyqualified lawyers Amy McGowanDocherty and Katie Banks to its respected family team where they will work across the firm’s offices in Worcestershire alongside head of department Claire Backler, partners Katherine Tippetts, Gurdip Brring, Alison Webber and senior associate Rupinder Nandra. The growth of mfg’s 13-strong family division comes as the team are responding to rising numbers of enquiries for their specialist advice. Claire Backler, partner and head of the Family Division at mfg Solicitors, said: “We have remained busy throughout the pandemic as people re-evaluated their lives, but we have been experiencing a further upturn in demand for our services as people look to the future. This includes more people wanting to formalise cohabitation agreements without getting married and a host of other marital and family issues. “As fewer and fewer couples opt for marriage, this is an area of work that is


News News News News News News going to become increasingly important in order to ensure that everyone’s rights and obligations to their partners are set out in the event that the relationship ends. “For those couples who do tie the knot, more of them do so later in life when they have perhaps acquired more in terms of their own assets and wealth – leading to greater numbers of people opting for nuptial agreements. “This, along with people wanting to ensure that their wishes will be acted upon following their death and that their loved ones will be able to inherit their estate, has also led to a rise in demand for succession planning. “It’s for all these reasons and more that we’re delighted to have Amy and Katie join our team. They are two stars of the future, already hugely popular with clients, and will add another dimension to our family offering”.

Amy McGowan-Docherty joins the Family Division at mfg having recently completed her training and will work across all family matters, including divorces, finance, cohabitee agreements and disputes, injunctions, pre- and post- nuptial agreements and arrangements for children. Katie Banks joins as a paralegal, having successfully completed Level 4 of her Diploma in Paralegal Studies.

Covid Bounce Back Loans a “debt mountain” for businesses

Ms Lang, a partner at Worcestershire law firm mfg Solicitors, said the loans would be taken into account by future liquidators, while directors could find themselves personally liable if their companies cannot pay. She is urging any directors who might be unable to repay their loans to seek legal advice about their options.

Billions of pounds worth of loans to help small and medium sized enterprises survive the coronavirus pandemic are a “debt mountain” businesses should start to pay off as soon as possible.

Almost 1.6 million Bounce Back Loans worth a total of £47 billion have been approved and were the largest part of more than £80 billion of total government-backed loans during the pandemic.

That is the message from leading corporate and commercial lawyer Clare Lang, who is encouraging businesses

Ms Lang said: “Bounce Back Loans were a vital emergency lifeline for many businesses who were unable to trade as

Amy McGowan-Docherty, Katherine Tippetts and Katie Banks


to use the lifting of Covid restrictions and the accompanying growth in trade as a window of opportunity to reduce their liabilities.

Personal Guarantees: Watch out for the loopholes

Marina Akram

Clare Lang normal during coronavirus restrictions. But this is not free money and the debt will have to be repaid. The time to act to reduce the debt mountain is now, while restrictions have been lifted and most businesses are able to trade as normal.” One advantage of the loans was that directors were not asked for personal guarantees, but Ms Lang warned that did not mean they could not be held liable. She added: “If the loan cannot be repaid, the company may be insolvent, responsibility falls to the creditors and not the shareholders. If the company cannot repay the loan, a liquidator may look into where the loan was spent and directors may be deemed personally liable if the funds were spent to pay off other debts as this would be deemed money of the company. “The important thing for any director to do in the event that they cannot start paying these loans back is to ensure they are up front and transparent with the Insolvency Service and lenders,” she said. “This was not free money. It was only ever intended to keep businesses going through lockdown. These debts have to start to be repaid or they will become the same as any other bad debt – with directors held liable.” The Insolvency Service has taken action against businesses abusing the financial support including disqualifying a director for 12 years.

Creditors often deal with disputes by guarantors who question the legality and enforceability of a guarantee following a failure by the principal to pay a promised debt.

Personal guarantees which are vague and inadequately drafted can lead to unenforceable guarantees and/or guarantors being unjustly released from financial obligations. What is a personal guarantee? A personal guarantee is a contractual promise to a creditor/lender by the guarantor to be responsible for due performance of the obligations of the principal (i.e. a company) if they are unable to meet its obligations financial or otherwise to the creditor/lender. A personal guarantee may be used in a range of situations, including but not limited to: • Bank loans; • Overdraft applications; • Trade Creditor Applications (mainly used by suppliers); • Landlords may use them as regards to tenants. Conditions of a valid guarantee 1. The guarantor’s obligation is a secondary obligation which is conditional on the existence (and usually breach) of the primary obligations owed by the principal obligor, i.e. a company, to the creditor. 2. The basic requirements of a contract governed by English law apply to the formation of a guarantee: i.e. offer, acceptance, intention to create legal relations and consideration if not contained in a deed. 3. A guarantee must be in writing (or evidenced in writing) and signed by the guarantor or a person authorised by the guarantor it in order to be effective (Section 4, Statute of Frauds 1677). 4. Recent case law has made it easier

to form a valid guarantee through a series of documents including emails. The name of the guarantor in an email, where there is both an intention that it is a signature and an intention to contract, will constitute a signature for this purpose. 5. A guarantee can be either be an allmonies guarantee or for specific amounts. Pitfalls to avoid when obtaining and enforcing personal guarantees 1. Get your primary agreement, terms and conditions and guarantee assessed by a specialist solicitor before sending it to potential customers and guarantors. 2. Guarantee documents often include both a guarantee and a supporting indemnity so that the beneficiary can have the benefit of both. The exact wording of the terms of the obligation must make this clear. If there is any uncertainty, the court will choose the interpretation that is less onerous for the guarantor. 3. To avoid potential undue influence and misrepresentation issues when obtaining a guarantee from an individual, the creditor should give enough time to the guarantor and obtain confirmation from the guarantor they have obtained legal advice if they need to understand the terms of a guarantee. 4. Check if the guarantor has capacity within its company to give a guarantee. Are they a director, partner, or company secretary of the company? 5. Ask the guarantor to send the original copy of the guarantee and don’t forget to validate the identity of the guarantor by obtaining a copy of their ID. A personal guarantee is a useful recovery method available to creditors/lenders, hence, the drafting of the personal guarantee needs to be watertight. Ambiguous drafting and the lack of key clauses can lead to a signed guarantee being discharged by the Courts. For further advice, please contact Marina Akram at Silverback Law, Commercial Litigation team on 0844 967 2700 or


WLS Awards Success Congratulations to all our Award winners! Over 180 of Worcestershire's legal professionals gathered for the Annual Worcestershire Law Society Awards, celebrating excellence in the legal profession over the last year. The Awards saw the legal profession in Worcestershire come together in person for an event of this kind for the first time since 2019. A special night with a fun atmosphere, 10 prestigious awards were presented from an exceptional list of finalists. Worcestershire Law Society President, Charlotte Perry, said: “The Worcestershire Law Society Annual Awards Dinner 2021 was a truly memorable evening.

The winners are as follows: Residential Property Team of the Year – QualitySolicitors Parkinson Wright Outstanding Achievement – Gill Wooldridge (Bradley Haynes Law) Administrator of the Year – Tim Clack (mfg Solicitors) Paralegal of the Year – Jodie Billings (Painters Solicitors) Trainee Solicitor of the Year – Daniel Maiden (QualitySolicitors Parkinson Wright) Junior Solicitor of the Year – Harpreet Kaur (Harrison Clark Rickerbys) Solicitor of the Year – Lisa Johnson (Bradley Haynes Law) Barrister of the Year – Tom Lawal (St Ives Chambers) President’s Award – Jessica McSorley (mfg Solicitors) Lifetime Achievement Award – Patricia Beeching (Hallmark Hulme Solicitors)


The Society received a high number of nominations and from there, an exceptional shortlist of potential winners. Congratulations to all those who won an award on the night, all of which were very well deserved! An extra special mention to this year’s Lifetime Achievement Award winner Patricia Beeching. An award recognising a significant contribution to the county’s legal profession which Patricia has done so for over 40 years. A huge heartfelt thank you to Laura Osborne who worked so hard to ensure a perfect evening for all. The magician and singing waiters were an excellent choice of entertainment! Great food, great company, a night of dancing, fun, laughter; overall a thoroughly enjoyable evening.”


Children and Contributory Negligence: a summary of the law

Lorna Badham Lorna Badham revisits the question in light of the High Court decision of Alabady v Akram [2021] EWHC 2467 (QB). Alabady concerned a nine year old girl (Khadija) who was crossing a busy road in Manchester when she was hit by the Defendant’s car. She had been crossing in a family group which included her mother and three cousins of similar or older age. The group crossed at a formal crossing point but on red. Khadija was closest to the Defendant’s car and had, whilst momentarily distracted, continued to cross whilst the rest of the group had stopped. The Defendant drove into the junction at 43 miles per hour, and was still travelling at around 33 miles per hour when he collided with Khadija. Both the Claimant and Defendant instructed CCTV and accident reconstruction experts, whose agreed opinion was that: a If Khadija had looked to her right as she started to cross (when the defendant was 75 m away) she would have had a clear and uninterrupted view of the defendant's car. b If when Khadija began to cross the defendant had been travelling at the maximum permitted speed of 30 mph it would have taken some 5.6 seconds to reach the point of impact. By that time Khadija would have walked to a point 2 m beyond the collision point. There would therefore have been no collision. c The defendant probably started to react to the presence of the group at about the point the car crossed the stop line the north of the junction. If the defendant had been travelling at 30 mph at the point the car crossed the stop line (assuming the same perception response time of


1.1. seconds) the car's total stopping distance would have been around 26 m from the stop line or about 19 m from the crossing. There would therefore have been no collision. d At the actual approach speed of 43 mph (assuming a PRT of 1.1. seconds) the total stopping distance from the point the car crossed the stop line "under full emergency braking" was 45 m. The collision might well therefore have been avoided but would certainly have happened at a much lower speed. e If the defendant had been travelling at 26 mph at the point Khadija stepped onto the crossing he could have continued his journey without the need to brake at all and the collision would have been avoided. f The collision would have been avoided if Khadija (and the group) had obeyed the "red man" signal and would have been avoided if she had stayed with the group. HHJ Bird, presiding, found that Khadija had not been contributorily negligent. His judgment provides a useful summary of the principles surrounding the assessment of contributory negligence in cases involving children. Key principles • the starting point is section 1 of the Law Reform (Contributory Negligence) Act 1945, which states that “where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the Claimant’s share in the responsibility for the damage” (emphasis added). • Denning LJ in Davies v Swan Motor Company Limited [1949] 2 KB 291 stated that the determination of whether, and to what extent, a reduction for contributory negligence is just and equitable “involves a consideration, not only of the causative potency of a particular factor, but also its blameworthiness.” This case did not concern a child.

• In Alabady, HHJ Bird found (in relation to the test in Davies) that “the court must first determine if damage was caused partly by the fault of the Claimant and partly by the fault of others… causation is the decisive factor in determining the first question…the first question involves no direct comparison of fault.” If the conclusion is that damage was caused partly by the Claimant’s fault, the court will only then consider how damage should be apportioned “by reference to relative causative potency and the moral blameworthiness of each party.” • Gough v Thorne [1966] 1 WLR 1387 (confirmed in Ellis v Kelly [2018] 4 WLR 124) provides the principle that the standard of care to be expected of a child is to be measured by what is reasonably to be expected of a child of the same age, intelligence and experience. • in Toprador v D [2009] EWHC 2997, Denning LJ formulated the principle that “a judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety: and then he or she is only to be found guilty if blame should be attached to him or her.” Therefore a child too young to be expected to have a care for their own safety should not be found contributorily negligent. In respect of blameworthiness, in Toprador the child Claimant was a 13 year old girl who had been stopped by the side of the road when a lorry came to a halt and beckoned her and her party across. As she passed in front of the lorry a driver squeezed through the gap and struck her. Denning LJ considered “that any ordinary child of 13 ½, seeing a lorry stop to let her cross and the lorry driver, a grown up person in whom she no doubt had some confidence, beckoning her to cross the road, would naturally go straight on, and no one in my view could blame her for so doing.” Whilst the Claimant may have been blameworthy had she been “a good deal older” such that she would have been expected to verify the safety of her passage for herself, she was not in this instance. These facts bore a similarity to those in Alabady, as Khadija had crossed

the road under the direction of her mother. HHJ Bird considered that Khadija was not at fault to cross with the group, or for not conducting her own checks. Nor was she at fault for a momentary lapse of concentration which prevented her from stopping at the same time as the rest of the group. It appears that a child who crosses the road under the direction (express or implied) of an adult is unlikely to be held to be contributorily negligent unless their age and experience is such that they would be expected to second guess or verify the situation for themselves. • HHJ Bird considered what he would have found, had he found Khadija at fault and causation established. He cited AB v Main [2015] EWHC 3183, wherein HHJ Davies commented “I am satisfied that given the

Claimant’s age and experience it would be quite wrong to reduce the damages to anything like the same extent that I would have had he been an adult. His share in the responsibility for the damage must reflect the fact that had he been so young he would almost certainly not have done what he did.” This suggests that, where an adult and child have committed the same fault, their blameworthiness is likely to be judged differently. • Even had HHJ Bird found Khadija contributorily negligent, he would have assessed this at no more than 10%. He stated “I would have regarded such a reduction as de minimis. I would therefore in any event have made no reduction in Khadija’s damages.” The idea that a 10% reduction is “de minimis” in a claim of rather significant value may make Defendants blanche.

Learning points Claimants may be too quick to agree hefty reductions for contributory negligence where the Claimant is a child. The facts of each case should be looked at carefully by reference to the above principles, and no assumption made that a reduction would be similar to that involving an adult. Of course, the age of the child will be critical. The judgments in Alabady and Toprador suggest that a Defendant seeking to minimise damages in cases where a child crossed under the direction of an adult may need to join that adult for a contribution, rather than place reliance on a contributory negligence finding. Lorna Badham Barrister, St Philips Chambers


Hybrid working policies – tips for employers Claire Cole, Partner and Head of Employment at Hallmark Hulme LLP discusses some of the issues which employers need to consider when implementing hybrid working policies in the workplace

Eligibility criteria

Guidance on home working

The policy should set out which roles within the workforce are suitable for hybrid working. In order to minimise potential disputes, employers should clearly set out why some roles are included and some are not (for example a customer facing role may be excluded from the scope of the policy).

The policy should provide clear guidance on what is expected of staff when they are working remotely including: • working patterns and ensuring a work-life balance; • sickness absence reporting when working remotely; • rules relating to technology and equipment provided by the employer to assist with remote working; • maintaining of a safe and healthy remote working environment including carrying out a homeworking risk assessment; • data protection and GDPR compliance, including effective computer security; • any financial aid available to help towards internet costs and buying additional equipment; and • insurance requirements.

Split between office and home working Claire Cole Now that COVID-19 restrictions have eased, many employers are looking at implementing hybrid working policies. Some tips for employers on what to include in these policies are summarised below. What is a hybrid working policy? A hybrid working policy allows employees to split their time between attending the workplace and working remotely. The policy can benefit both employers and employees by facilitating more flexible agile working and creating an effective and beneficial work-life balance for staff. Employers need to review and adapt any related HR policies and procedures in connection with rolling out a hybrid working policy and keep those policies under review on an ongoing basis. ACAS recommends that employers consult employees and their representatives before implementing a hybrid working policy.


The policy should clearly set out the split expected between attending the workplace and working remotely. It may be that the employer wants a 50/50 split. Alternatively, a degree of flexibility may be needed depending on individual circumstances, the nature of the role, how the team is structured, the employer’s operational needs and the physical space available in the workplace. Arrangements for attending the workplace The policy needs to set out what employees can expect when working in the office and should deal with working patterns, working hours (including any flexibility around start/finish times) and any hot desking arrangements. The policy should include safeworking measures which are in place as employers continue to maintain frequent cleaning schedules, space out workstations or adopt a rota system within teams minimising the numbers of employees in the workplace at any one time.

Hybrid working policy vs flexible working policy It is important that employers are able to implement and manage a hybrid working model alongside the statutory right to request flexible working. Claire Cole Partner, Head of Employment Email: Twitter: @SolicitorEmploy

Landmark Moment for Gifts in Wills 1 Million Charitable bequests donated over 10 years Consortium celebrates landmark legacy moment at start of Remember A Charity Week 06 September 2021, London: A landmark goal for charitable bequests has been reached with over one million gifts in Wills donated to charities over the past decade, according to figures released to coincide with the launch of Remember A Charity Week (06-12 September 2021). With over 100,000 charitable bequests left in Wills each year, more than one million gifts were donated from 2010/11 to 2019/20, data from Smee & Ford shows. Over that time, cumulative legacy income to UK charities exceeded £23 billion, funding vital services across the country. Appetite for legacy giving continues to grow and, despite recent delays at probate, the number of charitable bequests is predicted to rise by 30% over the decade.* The 200-strong charity consortium Remember A Charity launches its week-long public awareness campaign today, encouraging people across the country to consider leaving a gift in their Will. A collaborative initiative, the campaign brings charities together with 1,300 legal professionals to champion legacy giving across the UK. Head judge of Dancing with the Stars, Len Goodman, is supporting the campaign, having altered his own Will to include a charity.


Rob Cope, director of Remember A Charity, says: “Legacy giving can be transformational for UK charities and it’s wonderful to consider the phenomenal impact of those gifts. Donations have long been on the rise, but the global pandemic has accelerated that growth, shining a spotlight on the critical role of charities in our communities and the importance of Will-writing. This funding is critical for the sector as we strive to build back and strengthen resilience for whatever the future holds. “Remember A Charity Week is a great opportunity for legal advisers to open up conversation about gifts in Wills and to help ensure that all clients are aware of the opportunity of including a gift in their Will, after taking care of family and friends.” Remember A Charity runs a Campaign Supporter scheme for legal professions, offering information and resources for solicitors, Will-writers and professional advisers about raising the topic of gifts in Wills with clients. Find out more at: *Source: Legacy Foresight, 2021

Levelling the legal services playing field Our online content, whether that is video, blogs, website content, social media posts etc, should all convey our expertise on the subject matter. We should be setting out to help people find out answers to questions they want to know about legal services. Using tools like Moz, Google Keyword Planner and Semrush you can research the terms that people are searching for around the subject matter. This will help to inform and prioritise what you write about.

We have never before seen a time when so many consumers are looking for professional legal services, with many now driven online as a result of the COVID-19 pandemic. A YouGov consumer survey cited “quality of legal advice” to be the most important factor (87% of consumers) when choosing a legal services provider. Aside from cost, “ease of obtaining legal services” was important to 86% of those surveyed; 85% asked for “experience and qualifications,” and 70% wanted “local offices” and/or “face to face” contact. As we start to exit the most challenging 18 months many of us can ever remember there will be opportunities. Many of us have cut costs and reduced overheads. Some have been busy; many, many conveyancers and private client practitioners have been inundated, with the property market booming as a result of the Stamp Duty Land Tax holiday, and an increase in estate planning enquiries. As we move into what feels like the next phase of the “new normal” it is vital that you continue to invest in winning new work. We are already seeing a dip in new properties coming to market; private client enquiries have plateaued; we are now returning to a sense of normality and our activity must reflect this. YOUR SLICE OF THE PIE Legal services remains incredibly fragmented, still very focused on delivery on a local level, despite the pandemic. Yes, it has driven clients online, but they are still searching for local search terms. “Solicitor in Woking”; “write a will near to me.” When you search on search engines like Google and Bing one of the first automated search terms pre-populates the question with “near me.” “Plumbers near me;” “electrician near me.” The results now incorporate a whole host of sources including websites, video and social…


so, it is increasingly important that you have an online presence which will enable you to capture this traffic. We often forget about our own experiences when it comes to applying the same principles in our businesses. What do we really want when we’re looking for something… an answer! Increasingly we are using longer search terms to find what we want. And in order to capture this interest we need to be able to answer the questions people are asking. The search engine algorithms are geared toward finding answers. Google themselves have given us some guidance on their philosophy of EAT. The acronym stands for expertise, authority, and trustworthiness and each search result is ranked against these measures of credibility to try and deliver back the answer to the question being asked. IMPROVING ONLINE ENGAGEMENT Our objective when we’re writing online then is to try and answer the questions that are being asked about legal services. We need to be able to engage people so that they start to feel that they know, like, and trust us before they commit their hardearned cash. In the same way you might hold a conversation with a client face to face, or over the phone, you need to be able to convey your authority, expertise and credibility on the subject to foster confidence.

CUTTING COSTS WITHOUT CUTTING OPPORTUNITY To help you deliver expert, authoritative and trustworthy online content, here are 6 quick tips we think will help you build up your online credibility without spending a fortune: • Demonstrate knowledge by providing informative articles and case studies on your website and to local newspapers and press. Be the “subject matter expert” and demonstrate your expertise through carefully written, “tell, not sell” articles and blogs. • People buy locally. You can raise awareness in your local area publishing articles and on social media about the methods you have put in place to provide your services without faceto-face contact. • Ask for client testimonials to prove your experience. Ask for happy clients to post on your social media pages and on Google reviews. • Update existing customers with a newsletter, or even brief e-shots with informative information which your customers won’t have read elsewhere. Encourage recipients to share with their friends and family. • Ensure you have a mobile friendly website. Like you, your customers will check out companies online before committing. Make your company look as professional online as you do when seeing them face to face. • Ensure that your website has a Google My Business listing.

In the absence of face-to-face communication how do we establish this rapport and credibility in an online environment? COMING OUT FIGHTING Instead of burying their heads in the sand, we are seeing businesses coming out fighting and looking at how they can best approach the uncertainty to come out the other side stronger… you might recall those that came out of 2007/08 strongest were the businesses that continued to invest in communicating with clients and prospects. We are seeing businesses adopt new (and old!) ways of communicating with their clients and users, using video, direct messages via Facebook, e-newsletters and even going back to traditional paper mailers.

Today’s Legal Content is part of Today’s Media, the publishers of the popular Today’s Conveyancer, Today’s Wills and Probate and Today’s Family Lawyer daily news journals. Through expert SEO-considered articles on a range of B2B and B2B subjects we can help you build up your online content library and improve the effectiveness of your web presence. Contact Lindsay Gibson today on: or call 0330 1000 839

Welcome to Winterfold

Winterfold is a wonderful and stimulating place in which to spend your childhood and your formative years of learning. Set in over forty acres of beautiful grounds with views to the Malvern Hills, the School offers excellent facilities which meet the needs of a broad and balanced curriculum. Central to the School’s ethos is the happiness of its pupils; children are nurtured to become

independent, self-assured individuals, who are ready to face the challenges of senior school and the wider world. The family friendly feel of the School is evident as soon as you walk through the door. The pupils are learning for life and they are given the opportunities and environment that they need to help them grow in confidence and become engaging,

successful and resourceful young people. Talk to the children and you will discover that they love going to school and are very proud of their achievements. At a recent inspection, it was confirmed that “the School has the highest standards of Pastoral Care for its pupils.” Winterfold is a non-selective school and there are no formal entry requirements or tests. Children are accepted at any age, provided there is a place available. The School takes pride in the fact that they truly know every child and that their potential is achieved in every aspect of school life. Children at Winterfold develop a sense of purpose and determination due to the wide variety of activities in which they take part. They leave as well rounded individuals who have become good citizens of the future. Don’t just take our word for it, go and see for yourself.


Make great client experiences your differentiator—introducing Clio Grow What is your firm doing to find—and retain—clients? Client expectations have evolved, and now more than ever before, clients expect a high level of service from their lawyer. If you’re not meeting those expectations, you could be missing out on vital opportunities for your firm. Client experience counts for a lot when it comes to choosing a law firm. With more than 180,000 practising lawyers in the UK today, your competition is stiff, which means that every contact with a potential client counts. How clients interact with lawyers has changed too. In the modern legal landscape, clients are no longer willing to play phone tag with a solicitor or to spend time chasing a firm that’s hard to reach. In an industry so dependent on referrals and reputation management, building better client relationships is the differentiator that


will earn you lifelong clients and continue to help your business grow. Adopting the right legal client intake and relationship management software is key to this aim. The data* backs this up: In 2019, firms using legal client intake and relationship management solutions saw 16% more casework and over 20% more cases every month from February onward in 2020. Firms also saw a large revenue increase, too. In 2019, firms who used client relationship software saw 9% more revenue, per lawyer, with revenue continuing to increase in 2020, reaching a high of 26% more revenue in August. The right client intake and client relationship management solution could transform the way your firm does business. Take Clio Grow, Clio’s legal client intake and relationship management software, as an example. It’s designed to make it easier for lawyers to

connect with clients. With it, you can:

• Use quick intake forms, scheduling, and e-signature tools to engage and retain new clients in moments, not days. • Nurture relationships by keeping clients updated with automated follow-up emails and reminders. • Get a bird’s eye view of your client pipeline using analytics and reporting tools so you never miss a single opportunity to connect. Available as part of Clio Suite, the legal industry’s only end-to-end legal software solution, with Clio Grow, you can watch your client base, billable hours, and reputation thrive. See for yourself how Clio can revolutionise the way you connect with your clients at

*All figures taken from Clio’s 2020 Legal Trends Report


Quiz - How healthy is your legal website? Is your website driving work to your law firm or driving it away? Take this quiz to find out. Are you confident that you know if your website is working as hard for you as it could? Do you know what points make it effective, increase your online visibility and drive leads to your firm? This quick quiz, created by Orion Legal Marketing, will help you identify how healthy your website really is. 1. If you Google the key practice areas your law firm would like to grow, does your website appear: A. In position one on Google? B. On page one on Google (but not at the top)? C. It’s invisible e.g., page 2 or beyond?

10. A. B. C.

Do you review Google Analytics regularly so that you know: Who is visiting your website, what pages they are viewing and how they got there? A rough idea if the number of visitors is going up or down? What’s Google Analytics?


11. A. B. C.

If you view your website on a mobile device, does it: Automatically resize and provide the best possible viewing experience? Looks okay but a bit hard to read/ navigate? Yikes, I didn’t realise it looked that bad!

When you appear in Google results, does the meta tag description (the 1–2-line summary of your website page): A. Succinctly and powerfully explain the benefits you provide? B. Give a general description of your firm? C. Pick a random line from your website? 3. A. B. C.

Does your website load: Instantly? In a few seconds? Yawn, unsure, I nodded off

4. A. B. C.

Does your home page: Clearly say what you do and what you want the visitor to do? Talk about you, but not so much about your clients? Ramble on about nothing in particular?

5. Does your website navigation enable a website visitor to access key information in: A. Under 3 clicks anywhere on the website? B. Between 3-5 clicks C. They are likely to get repetitive strain injury 6. A. B. C.

Do the colours and images used on your website: Reflect and strengthen your branding? Look nice but they are a bit abstract? No idea, just there to look pretty

7. A. B. C.

Does your website have: A call to action (e.g., ‘contact us form’ on every page?) On some pages? Just on the Contact us page?

8. A. B. C.

The profile images on your website, are they: Professionally taken and up to date? Professional but over 5 years old Taken on someone’s phone, whilst on holiday, about 10 years ago

9. A. B. C.

Does your website provide: Valuable content for the visitor in the form of blogs and downloads? A few articles but they have not been updated in a while? No articles section – ‘I have no time, or inspiration, to write anything’

12. Do the staff biographies on your website: A. Contain recent work examples, outline your work style and the benefits your experience brings B. List a selection of facts from your/their CV C. Were written when the website was launched/ you joined the firm and not been touched since

YOUR RESULTS Mainly A’s – Your website is fighting fit, just remember that to stay in shape and optimised you need to keep to a regular marketing health routine. Mainly B’s – Your website needs a marketing specialist check-up as it’s not performing as well as it should and has some fundamental issues, so a marketing health check would be advisable to prevent any long term damage occurring. Mainly C’s – Oh dear. Your website barely has a heartbeat and it may be driving potential clients away (if they even find it). You need to see a marketing specialist ASAP or this may be terminal.

Contact Orion Legal Marketing for a free website check-up and quote “WEBSITEHEALTHCHECK” to get free advice on how best to get your website performing at its best on T: 0118 380 5980 or email

Border Wars

Chris Makin

I have banged on for ages about the stupidity of going to law over border disputes. And I’m not talking about Russia invading the Crimea, or China’s campaign to take over Taiwan. No, much closer to home, I have in mind the passions which can be aroused when next-door neighbours argue over where exactly the border falls between their two properties.

When passions flare up, all sorts of problems arise. One is that the border between adjacent houses on an estate is rarely defined accurately. Ground workers take a cavalier approach, and it’s no good relying on “the area bordered in red” on the Land Registry plans, since that line when scaled up may be a metre or more wide in real life. If a border is not defined accurately, a houseowner may have difficulty selling their house because they cannot say exactly what land is for sale. And passions continue to run because protagonists can never get away from the “enemy” next door. But going to law can be terrifyingly expensive. Let us look at some examples from my mediations. The first concerned a row of detached houses, “little boxes on the hillside made of ticky tacky”. There was Mr Left’s house and a drive, then Mr Right’s service strip and house with a drive to its right, and so on up the hill. Mr Left wanted to construct a garage over his drive with a bedroom over, but there was doubt about where exactly the border lay between his drive and the service strip. Mr Left asked Mr Right if he could construct his extension up to the edge of the service strip rather than the mid-point of the low dividing wall. Mr Right adamantly refused; but when he was on holiday, Mr Left built the shell of the extension nevertheless. During the mediation, I knew we were in trouble when Mr Right produced a photograph of the two houses, showing where he believed the boundary lay. Interestingly, there was a bedsheet draped out of the bedroom window, painted with a Union Jack and “Welcome Home, Gary”. To be friendly, I asked “Who’s Gary?” to be told that he was his only son, now dead, a soldier killed in the first Gulf War, and Mr Left had encroached on the “sacred” land where he had played with Gary as a child. After fierce negotiations, Mr Left agreed to pull down the extension and rebuild it two inches narrower. That would have been a good result, except that Mr Right said that he must have been Right (!) all along, so he wanted his costs. Mr Left had no money. The mediation failed, and no doubt the dispute rumbled on, with huge legal costs and destroyed relationships; but we got so close. The second example concerned a pair of bungalows on a smart estate. In the first was a chap who had bought his bungalow when new, and the second had been occupied by an old lady now deceased. The chap used to help the old lady with light gardening, but when she died he encroached onto her drive by


laying paviours about 6 inches onto her drive. Then the second bungalow was bought by two young ladies, who objected and wanted the full width of their drive to be restored. Two themes developed. The first was that one of the young ladies was a taxi driver, and she generally finished her shift at 10.00pm, putting her taxi up the drive and closing the gate, which happened to be fixed to the front corner of the two bungalows. The effect was that the chap heard a loud bang through his wall, every night just as News at Ten was starting. He was not pleased. But worse, it emerged that the two young ladies were gay, and the chap wasn’t going to have people like that on his estate. So he had gone round all the neighbours to persuade them to make the ladies unwelcome, but all the neighbours said they were a delightful couple, and were welcome on their estate. This did the chap’s temper no good at all! When mediating I couldn’t change the chap’s attitude to gay people, so I concentrated on the gate. Late at night I ended up on all fours, designing a gate with an acoustic break, using the torch on my iPhone. The dispute settled, but it could have been very nasty. With the third and final example there were similarities, but the major issue was legal costs. Here, the adjacent houses shared a drive, but each wanted to define their half of it. One

side had done so by laying paviours (again!) which allegedly encroached on the other’s drive. Both sides had so far spent over £10,000 on solicitors and on experts’ reports, none of which came to any firm conclusions. And each side independently had an estimate of further costs to trial, if the mediation failed, of £50,000 – each! If the matter had proceeded to a full hearing, the losing side would have faced a costs order of £100,000 or so, meaning that they would likely have had to sell their house to pay those costs. How stupid is that? The mediation settled, as it had to. The outcome is less important than that mediation allowed the parties to get off the merry-go-round and their homes were no longer at risk. Sir Alan Ward is a mediator, latterly chairman of the Civil Mediation Council, and for many years before a Court of

Appeal judge. I have mediated with him in his very first mediation, and he was excellent. But on the bench he saw too many of these Border Wars, and we would all be wise to have regard to what he said about border disputes: “This is another of that hideous form of litigation called the boundary dispute, a form of litigation which is best not pursued. Just how much is this stupid piece of land worth? What you are arguing over is a few rhododendron bushes. If you live in St Georges Hill, you’ve got money to throw away, presumably. But why throw it away like this? You’re all potty. Disputes of this kind are a most hateful form of litigation; go away and sort it out.” That says it all! Biog: Chris Makin has practised as a forensic accountant and expert witness for 30 years, latterly as Head of Litigation

Support at a national firm. He has given expert evidence about 100 times. He also performs expert determinations. Chris is a fellow of the Institute of Chartered Accountants where he has served on the Forensic Committee, and as an ethical counsellor; he is a fellow of the Chartered Management Institute, a fellow of the Academy of Experts where he serves on the Investigations Committee, and a mediator accredited by the Chartered Arbitrators. He practises as a mediator, from his home in West Yorkshire and his rooms at 3 Gray’s Inn Square, London WC1R 5AH, telephone 020 7430 0333. He has mediated 100+ cases so far, on a huge range of subjects, with a settlement rate to date of 80%. For more see his website with videos:


Expert Witness Institute Online Conference 2021 “Lawyers and Experts”: Facing the Future Together Friday 28th May 2021 WE MISSED YOU ALL – BUT SEE YOU NEXT YEAR IN PERSON! An appreciation by Elizabeth Robson Taylor MA of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator Lord Hodge, Deputy President of the Supreme Court, and the new EWI President from October 2020, gave an absorbing keynote speech at this year’s online EWI Conference, chaired throughout by Saba Naqshbandi, whom we welcome to the role. To state the obvious (for some), it was a somewhat surreal experience this time round without the face-to-face chats and the nattering and meeting up with old colleagues: coronavirus was the unfortunate theme throughout, too. However, two speeches stood out for the 2021 Conference this year: those of Lord Hodge and Sir Martin Spencer. Lord Hodge: The Keynote Speech Lord Hodge spoke of what the court expects of a competent expert witness reflecting on his own experience of expert witnesses, both as a judge and advocate. He described the critical role of the expert witness in the administration of justice, together with judicial expectation. His lordship also shared thoughts on the impact of the pandemic on the courts saying that the title of the conference, ‘Lawyers and Experts: Facing the Future together’, “felt particularly apt”. Hodge set out what he felt the court expects of a competent expert witness, and we have highlighted some of these points: • Independence and Impartiality. While this might seem obvious, he felt it was concerning that in a 2019 survey 25% of expert witnesses had felt pressurized to change their report in a way that damaged their impartiality, and 41% indicated that they had come


across other expert witnesses they considered to be a ‘hired gun’ • Expert evidence must be ‘expert’, • In addition, an expert witness had to undertake the task of ‘being an expert’, being aware and competent in their duties to the court, • Continual critical examination of their own work or opinion. • Ownership, or, as expressed by McFarlane LJ in a 2018 speech in one word: ‘Clarity’. Both clarity of thought and clarity of expression or presentation of the evidence will assist the judge greatly. Hodge stressed that it was “imperative that expert witnesses take full responsibility throughout the process of preparation and presentation for his or her opinion evidence”. “Judges, lawyers and experts have to face the future together”, said his lordship, reflecting on this theme and the dramatic impact of the COVID-19 pandemic on the courts. “I am very much aware that life had not been easy for expert witnesses during the pandemic both in terms of carrying out physical site visits or examinations and in financial impact, be that through postponed trials, or delays in payment”. Sentiments felt by all of us!

future together”, so this conference presented an opportunity “to enhance the contribution of expert witnesses and those lawyers who work with them in support of that aim”. Sir Martin Spencer It is always a pleasure to hear from the EWI Chair, Martin Spencer. Sage advice as always, and he offered these words concluding the conference: “Since our last conference, we have worked through two further periods of lockdown from the Covid19 pandemic, and we have all continued to adapt to new working practices”. “But”, he continued, “as social distancing measures ease, even the Lord Chief Justice has said that ‘remote and hybrid hearings will still play their part in managing footfall in courtrooms and public areas.” We suppose so, but some return to normality is to be yearned for in 2022.

Although some may not agree, Hodge observed that “not all consequences of the pandemic were bad”. The court’s operations during the pandemic were, from the words of the Lord Burnett, that it is “the biggest pilot project the justice system has ever seen.” It was important to take time to reflect on what had worked well and how this could be harnessed more broadly to improve the overall function of our system of justice, concluded Lord Hodge.

So, this year's conference theme is, says Martin, “very relevant in considering how both Lawyers and Experts can learn from each other and embrace many of the changes as we move forward”. Speaking of the panel discussions and breakout sessions, he said that “this year we have brought together a formidable team of speakers, knowledgeable and influential in their fields, with a huge breadth of experience”. It should not go unsaid that every recent annual conference we have attended broadens the mind!

“The task of transforming our justice system”, he continued, “required the input of all actors in the court system”. He repeated that we “have to face the

A virtual “au revoir” until 2022 and let us hope we can all meet up together in person once more to enhance the panel and breakout sessions!

Flood Data Insights Data from the first in a new series of Data Insights Reports from Landmark Information has shown the broad extent to which flooding poses an ongoing threat across England and Wales. The report provides land and property industry professionals with insightful snapshots of rich flood data to explain the true impact risk upon communities across the country. It highlights the local authorities that have the highest rate of properties located in Flood Zones 2 and 3, and reveals that 37 out of the 335 local authorities have at least a fifth of properties in Flood Zone 2 within their jurisdiction. The report also identifies that more than 27,000 (6.7%) notable Listed Buildings are based in areas deemed to be at the highest Flood Risk parameter (3), in addition to almost 12% of all 200,000 Scheduled Monuments are situated in Flood Zones 2 or 3, which include highly notable buildings like the Tower of London, Hampton Court Palace and Caerphilly Castle. The new series of Data Insights Reports, which will be published every quarter, will focus on specific themes, from a review of planning updates and the local and national impacts, to uncovering information relating to a range of environmental hazards. Chris Loaring, managing director of Landmark Information (Legal), said, “According to the Environment Agency, approximately one in every six properties in England are considered to be at risk of flooding. This is forecast to grow as climate change continues to translate into shifting impacts on both current and evolving land use. “It is no secret that flooding poses a continued risk across our country – whether from surface water floods from heavy rainfall, groundwater flooding, through to coastal erosion and rising sea levels. It is something property professionals in all sectors need to be highly tuned to. “We are therefore pleased to share a series of Data Insights Reports that provide valuable and revealing insights derived from our data and help better inform those working across the property industry who can benefit from a clearer view of the future. Data: the lifeblood of the property transaction “In the two decades that Landmark Information has been supporting the property industry with vital due diligence, the way the data is captured, accessed, assessed and delivered has shifted. “From paper-based reports, CD-ROMs and PDF reporting, now the transition is taking us to digital. The reliance on documents and PDFs will ease and we will see an increased appetite for digital data that feed directly into an organisation’s existing


workflow. Instead of capturing a single moment in time, the data will instead be continuous and provide a current flow of data that is relevant at any given moment in time. “Flood data, alongside planning datasets, is one of the most dynamic risk types. The data is continually changing, driven by many factors – from local community and infrastructure updates, to the changing picture of the global climate. Having access to data that considers historical flood events while assessing modelled data relating to future impacts offers precise insights that developers and purchasers need, in order to make informed decisions. “From a legal conveyancing perspective, the way you manage – and access – that data is critically important to ensure the most appropriate advice is provided. Live data feeds will provide the most up to date picture, and this approach will herald a significant new chapter in the evolution of due diligence in the property sector.

“We are proud to be driving forward this digitised approach and working closely with industry stakeholders to consider how the continued evolution of data feeds can benefit every part of the property industry. ” Landmark Information has an extensive wealth of data that is used across the property industry, every day, by developers, property lawyers, environmental consultants, estate agents, surveyors, architects and planners to help in confident decision-making and in transactions. For more information visit, news-insights/industry-reports/.