Today's Solicitor Issue 11

WINTER 2012 ISSUE 11

What sort of land registration system?

Does mediation have a role in personal injury dispute resolution?

Divorce proceedings and the release of confidential documents to HMRC SWEET & MAXWELL REUTERS / Arnd Wiegmann

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TODAY’S SOLICITOR ISSUE 11

in this issue: 4 INSIDE NEWS 6 What sort of land registration system?

11 Does mediation have a role in personal injury dispute resolution?

Welcome to the latest issue of Today’s Solicitor magazine by Sweet & Maxwell.

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In this issue Philip Hesketh explores the role mediation can play in personal injury dispute resolution, Barrie Akin looks at divorce proceedings and the release of confidential documents to HMRC and Martin Dixon looks at the changes to the land registration system.

17 Divorce proceedings and the release of confidential documents to HMRC 21 PRODUCT PROFILE Documentary Evidence 22 BOOKsHOP 24 AUTHOR PROFILE Joanna Glynn QC 26 YOUR SWEET & MAXWELL CONTACTS

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5

What sort of land registration system?

MARTIN DIXON We are all familiar by now with the Law Commission’s hope that the Land Registration Act 2002 (LRA 2002) will replace registration of title with title by registration. This was driven in no small measure by the aim of introducing full e-conveyancing within the first 10 years of the entry into force of the Act. Yet, while certainly we do have aspects of an electronic system – for example, electronic discharge of charges, electronic searches and electronic transfer of documents – e-conveyancing properly so called (where direct electronic entry on the register both completes and registers a transaction) is no closer. Indeed, the Land Registry have announced that implementation of e-conveyancing is “on hold” for the foreseeable future. No doubt, as HM Land Registry say, the unfavourable economic climate and the low volume of land transactions mean that few potential users will be willing to invest the time and money in an e-system.

However, there is also the lingering suspicion that neither the technology nor the will yet exists to bring true e-conveyancing to fruition.

One should not underestimate the technological challenges that e-conveyancing poses, nor the set-up costs for the many small firms for whom conveyancing is a staple. So too, the Law Society are right to worry about fraud and the extent to which practitioners are expected to moderate the system by carrying out identity checks and undertaking financial oversight.

None of these activities will be cost-free for clients and, come the day, the temptation will be great to turn to remote conveyancers who deal only by phone and post and who provide a service commensurate with a smaller fee. There is also the principled question whether it should be for the profession to police the system of land registration rather than the Registry itself. Indeed, given that the Registry will remain liable to pay indemnity in the event of loss caused by the operation of the system, will they in turn seek to recover from property professionals if the loss is caused by a mistake made by one of the practitioners in the e-conveyancing process?

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TO DAY ’S S O L I C I TO R

Of course, such is the way of things that these practical issues will be ironed out over time and perhaps our present uncertainty is no greater than the uncertainty faced by conveyancers after the entry into force of the Land Registration Act 1925. The e-system, whatever its final shape, will be made to work at a practical level.

There will be no choice. What is less certain, however, is whether the 2002 Act will be applied in such a way that there really is title by registration rather than registration of title. The difference is whether the register mirrors “true” ownership or whether being registered as proprietor is ownership, even if acquired in a way that pre-registration principles would disallow. If the former, the register should be altered where it does not reflect “true” ownership as determined bypre-registration substantive rules of property law. If the latter, the registered proprietor, even if not “entitled”1 according to “normal” principles of property law, takes priority in all but those limited cases where the Act itself allows the register to be

What sort of land registration system?

REUTERS / Stoyan Nenov

altered. The typical case is where A, by fraud or some other apparently invalid transaction,2 becomes registered proprietor of B’s land (i.e. land in respect of which B was the registered proprietor) and B then conveys the registered title to the innocent C. While B may be able to recover title while A is registered proprietor, can B recover from C? This in turn depends on our interpretation of s.58 of the LRA 2002 (conclusiveness of the register) and Sch.4 (alteration of the register). At present, there is little clarity about this, with some favouring the “mirror” approach to land registration, so that the register may be altered to reflect the “true” position3 (e.g. Ajibade v Bank of Scotland Plc,4 Knights Construction (March) Ltd v Roberto Mac Ltd 5) and others the “source” approach, so that the register is the source of title, even if the “true” owner loses out in favour of the innocent person now registered (e.g. Barclays Bank Plc v Guy,6 Stewart v Lancashire Mortgage Corp 7).

Of course, it is possible that the answer will depend on, and vary according to, the circumstance and that there will be no underlying theoretical consistency. The problem with leaving the principled question unresolved, however, is not only that the academic property lawyer’s neat and tidy mind does not like it, but that the issue of the proper shape of land registration can arise in a variety of ways, not only the large questions where somebody loses title (Stewart), or finds their land fraudulently charged (Guy), or subject to a false adverse possession claim (Baxter v Mannion 8).

In the recent Cherry Tree Investments Ltd v Landmain Ltd,9 the Court of Appeal were divided over the proper approach to interpretation and rectification of a registered document rather than the title itself. The underlying issue again was whether we should approach problems in property transactions differently because registration is involved or whether the 2002 Act has made no difference, being merely an aid to more effective conveyancing rather than establishing a new way of looking at property law. The case also provides an important lesson for conveyancers when drawing up registered charges. Landmain were the registered proprietors of land in Battersea and they had charged it to a finance company. The charge had been correctly registered against the title, but by a separate written agreement the parties to the charge had agreed that the normal power of sale (see s.101 of the LPA 1925) should be varied by permitting sale immediately on execution of the charge, irrespective of default. This facility letter had not been registered and the extended power of sale had not been drafted in to the charge proper nor incorporated by reference. In purported exercise of the extended power of sale, the chargee sold

the land to Cherry Tree, who applied to be registered as proprietors. Landmain objected to Cherry Tree’s registration on the ground that the extended power of sale was invalid, so far as being able to convey a registered title, because the extended power was not included expressly or by reference in the registered charge. Consequently, Cherry Tree applied to the court to be registered as proprietor and the trial judge found in its favour, taking the view that the registered charge could be interpreted so as to include the extended power of sale, this being the clear intention of the parties. Landmain appealed and a majority of the Court of Appeal (Longmore and Lewison L.JJ., Arden L.J. dissenting) allowed their appeal.

The critical issue for the majority of the Court was the difference between rectification of a document and interpretation of a document (the registered charge) and, to use Arden L.J.’s words: “[W]hether the charge and the facility agreement can be interpreted together for any purpose having regard to the fact that the charge alone is registered at the Land Registry pursuant to the Land Registration Act 2002 (‘the 2002 Act’).”10 In this respect, Arden L.J. recognised that the register was as an open public document that people will rely on (s.66 of the LRA 2002), that certain dispositions (including a charge) were valid at law only if registered (s.27 of the LRA 2002) and that s.58 provided a conclusive guarantee of title. However, she went on to note that “the register is not conclusive as to the state of the title in all cases”11 and gave the examples of unregistered interests which override, cases of alteration under Sch.4 and cases where >

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What sort of land registration system?

REUTERS / Marcos Brindicci

> one party is estopped as against the other from asserting the conclusiveness of the register (Scottish & Newcastle Plc v Lancashire Mortgage Corporation Ltd).12 However, with the greatest respect to Arden L.J., none of these reasons give weight to her conclusion that that the register is not conclusive as to the nature of a registered document so as to allow it to be interpreted in the light of “off-register” events. The examples given are cases where the Act itself specifically qualifies its conclusiveness13 or where, inter partes,14 equity mitigates the harshness of the formality of the law.15 They shed little light on those cases where there is no specific statutory exception or cause for equitable intervention between the parties to the dispute.16 This was, rather, a case where the primary question was the proper approach to the interpretation of a registered document. Nevertheless, Arden L.J. felt that she was not constrained by the conclusiveness of the register and went on to use the well-known principles of interpretation from Lord Hoffmann’s speech in Investors’ Compensation Scheme Ltd v West Bromwich Building Society (No.1)17 (the ICS principles) to conclude that the registered charge should be interpreted to include the extended power of sale.18 By way of complete contrast, Lewison L.J. focused on the purpose of the 2002 Act in bringing certainty and stability to dealings with registered title and the paramount objective of creating a conclusive register on which those inspecting could rely.19 His view, in approaching the question of interpretation under the ICS principles, was that: “… in the present case the contextual scene is the grant of a legal charge intended to be registered at HM Land Registry under the Land Registration Act 2002. That Act was passed following six years’ work by the Law Commission and the Land Registry.

Its fundamental objective, stated in paragraph 1.5 of the report which presented the draft bill, was expressed as follows: “The fundamental objective of the Bill is that, under the system of electronic dealing with land that it seeks to create, the register should be a complete and accurate reflection of the state of the title of the land at any given time, so that it is possible to investigate title to land on line, with the absolute minimum of additional enquiries and inspections.””20 He went on to conclude from this, and bearing in mind s.120 of the LRA 2002 on the nature of documents kept by the Registrar,21 that the registered charge must be conclusive according to its terms as expressed on the register.22 This would be what an inspecting party would rely on and was the most persuasive background

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fact when interpreting using the ICS principles.23 It would also further the general policy of the 2002 Act.24 Hence, the registered charge in this case could not be interpreted as including the extended power of sale.

There were ways it could have been done, but they had not been used and the scheme of the 2002 Act should not bend to make up for inattentive conveyancing.

Lewison L.J. also went on to consider the relationship between interpretation of a document and rectification of a document, again with an eye on impact of the 2002 Act. First, he confirmed that, contrary to one reading of Chartbrook Ltd v Persimmon Homes Ltd,25 rectification of a contract still existed as a separate remedy and had not been subsumed into some all-embracing principle of generous interpretation.

Consideration of that general point – which to a property lawyer seems uncontroversial – is beyond the scope of this Editorial. Secondly, however, he explained how rectification of a document connected with land registration principles under the 2002 Act. This is important because if a registered document is to be regarded as conclusive and not open to generous interpretation (as with the charge in this case), it is vital to know how rectification of that document plays out in relation to those who inspect the register and rely on it. When a document is interpreted, it has always meant what the court now says it means, specifically it has meant it from the moment of its registration irrespective of when a third party inspected the register (before or after the confirmed interpretation) in order to rely on the document.26 But, when a document is rectified – that is, its meaning is changed – when does that rectification take effect in respect of third parties? For Lewison L.J., the answer must be found within the LRA 2002 itself, as this is where the normal priority rules in ss.28 and 29 of the LRA 2002 come

into play. So, a purchaser (s.29 of the LRA 2002) will not be bound by the rectified document (but may rely instead on the unrectified document) unless, prior to registration of his purchase, the rectification is noted on the register or the person who has successfully claimed rectification enjoys an overriding interest (e.g. through actual occupation under Sch.3 para.2). On the other hand, a transferee not for value (s.28 of the LRA 2002), will take under the rectified document provided only that the rectification has been achieved prior to his transfer. It does not matter for a non-purchaser whether the rectification is noted on the register, whether the claimant to rectification has an overriding interest, or even that the transferee knows of the rectification. This is the scheme of the Act and it is that scheme that determines the effect of a registered rectified document on a third party. Once again, this upholds the integrity and conclusiveness of the system under the 2002 Act and promotes the protection of those, particularly purchasers, who rely on the register.

This is a welcome and insightful analysis of the effect of central provisions of the 2002 Act (the priority rules) in unusual circumstances. It sees the Act as a source of entitlement, not a mirror of entitlement.

It is not yet clear when, and in what form, we will have e-conveyancing. The longer it takes, the more tempting it is to forget that the 2002 Act is designed to facilitate its operation and that it is intended to change the way we think about title and ownership.

For some, be they practitioners, academics or the judiciary, this is unwelcome as it appears to favour administrative efficiency and economic exploitation of land over and above traditional notions of ownership and equity. Others, and I count myself among these, think that the 2002 Act requires us to readjust our perspectives and to learn new ways of doing business that take account of the new philosophy. For me, the Act is a source of title, not a mirror of it, and we cannot expect it to be interpreted contrary to its fundamental objectives in order to save those who could have achieved their aims by doing things differently.

Perhaps those advising Landmain and the chargee in Cherry Tree were not aware of how the new system would work. Perhaps they are the unfortunate guinea pigs caught out by an unforeseeable interpretation of the legislation. Perhaps those of us concerned with land registration at the academic and practical level are not doing a good enough job of explaining what is expected and required.

Martin Dixon Conv. 2012, 5, 349-354

Martin is a Reader in the Law of Real Property at Queens’ College, Cambridge and an Editor of Ruoff & Roper, The Law of Registered Conveyancing. mjd1001@cam.ac.uk

1. And that, of course, begs the question.

2. That is, “invalid” under those “normal” rules, as where, for example, there is undue influence or some other vitiating factor.

3. With further argument about whether it matters if the impugned transaction is void or voidable.

4. Ajibade v Bank of Scotland Plc [2008] REF/2006/0163/0174.

5. Knights Construction (March) Ltd v Roberto Mac Ltd [2011] 2 E.G.L.R. 123. Pinto v Lim [2005] EWHC 630 (Ch) is similar.

6. Barclays Bank Plc v Guy [2008] EWCA Civ 452; [2008] 2 E.G.L.R. 74. In an appeal on a procedural matter in Barclays

Bank Plc v Guy (No.2) [2010] EWCA Civ 1396; [2011] 1 W.L.R. 681, Lord Neuberger ventured that he could see the force

of the Ajibade and Baxter view. There is an excellent analysis of the general question in Sex, Lies and Land Registration

(2012), part of the Ten Old Square 2011/2012 seminar season, at http://issuu.com/keithplowman/docs/seminar_notes_ sex_lies_and_land_registration_feb_2?mode=window&pageNumber=14 [Accessed September 4, 2012].

7. Stewart v Lancashire Mortgage Corp Adjudicator Decision, REF/2009/0086 & 1556 .

8. Baxter v Mannion [2011] EWCA Civ 120; [2011] 1 W.L.R. 1594. See also [2011] 75 Conv. 331.

9. Cherry Tree Investments Ltd v Landmain Ltd [2012] EWCA Civ 736; [2012] 23 E.G. 97 (C.S.).

10. Cherry Tree Investments Ltd [2012] EWCA Civ 736 at [8].

11. Cherry Tree Investments Ltd [2012] EWCA Civ 736 at [29].

12. Scottish & Newcastle Plc v Lancashire Mortgage Corp Ltd [2007] EWCA Civ 684; [2007] N.P.C. 84.

13. For overriding interests, the safeguard is that most are discoverable by a person carrying out normal enquiries and, in

respect of alteration, its proper reach is at the heart of the debate between the “mirror” and “source” approaches to

land registration.

14. Cherry Tree was a third party, there being no issue of it being estopped.

15. And the extent to which estoppel can be used to circumvent a statute is the subject of lively debate.

16. An interesting, but unmade, argument is whether Landmain were estopped as against the chargee from asserting that

the charge included an extended power of sale and whether Cherry Tree could take the benefit of this estoppel.

17. Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1) [1998] 1 W.L.R. 896; [1998] 1 All E.R. 98

(“ ICS ”).

18. Had she been unable to interpret the registered charge so as to include the extended power of sale, she would have

used principles of interpretation to “correct” the mistake made by the parties. For the majority, this blurred to abolition,

the distinction between interpretation and rectification of a document.

19. See also his restrictive interpretation of Sch.3, para.2 (actual occupation and overriding interests) in Thompson v Foy

[2009] EWHC 1076 (Ch); [2010] 1 P. & C.R. 16. Arden L.J. also has “history”, see Malory Enterprises Ltd v Cheshire

Homes (UK) Ltd [2002] EWCA Civ 151; [2002] Ch. 216 and a limited reading of the Land Registration Act 1925.

20. Investors Compensation Scheme Ltd [1998] 1 W.L.R. 896 at [125], additionally quoting para.1.5 of the Law Commission

Report, found in bold for emphasis in the Report, No.271, Land Registration for the 21st Century.

21. In particular s.120(2) which states that “(2) As between the parties to the disposition, the document kept by the registrar

is to be taken –

(a) to be correct, and

(b) to contain all the material parts of the original document.”

22. This would not prevent unregistered documents being incorporated by reference, as the registered document would

refer to the extrinsic documents and so alert a person relying on the register.

23. Investors Compensation Scheme Ltd [1998] 1 W.L.R. 896 at [148], [150].

24. He notes that under Torrens, the High Court of Australia has applied the same approach, Westfield Management

Ltd v Perpetual Trustee Co Ltd [2007] H.C.A. 45; (2007) 233 C.L.R. 528. While not suggesting that the 2002 Act

produces a Torrens system (might it?), he thinks that the similarities are such so as to support the same approach.

25. Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 A.C. 1101.

26. This also explains why Lewison L.J. is not keen on an expansive approach to interpretation of registered

documents – how will a person inspecting the register know that they have always meant what the court now says

they mean?

Conveyancer and Property Lawyer is available in full-text on Westlaw UK. Email us your thoughts on this article to todayssolicitor@thomsonreuters.com

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Does mediation have a role in personal injury dispute resolution?

PHILIP HESKETH Philip Hesketh explores the role mediation can play in personal injury dispute resolution. While mediation is recognised as a valuable tool the current uptake for mediation in personal injury is low. However, for those cases that have been mediated the success rate is significant with 90 per cent of cases resolving.

Philip explores the reluctance of practitioners to utilise mediation, identifies the cases where mediation could really add value and considers how the current judicial support for mediation coupled with the post-Jackson/ LASPO landscape is likely to lead to an increase in mediation.

I have delivered many introductory courses about mediation to personal injury lawyers and have often heard the view that if the lawyers themselves can not settle the case what is the point of mediation? I practised as a claimant personal injury lawyer for nearly 20 years and never mediated a single case so can empathise with that view. However, mediation clearly does work in personal injury litigation. Trust Mediation has over the last five years mediated hundreds of personal injury cases and the settlement rate has been consistent at around 90 per cent. The cases tend to be “difficult” cases that have not been settled by the traditional methods of Pt 36 offers or Joint Settlement Meetings (“JSM”). The cases include quantum only, liability only or quantum and liability. This is what Sir Rupert Jackson said in his final report on the review of civil costs:

something in it for them mediation is unlikely to happen. At present we do not have mandatory mediation so the stick is in the form of costs penalties that the courts can impose on parties who refuse reasonable offers to mediate. I will consider what mediators actually do to reach settlement in 90 per cent of these difficult cases and then consider what factors indicate that a case is more suitable for mediation than a JSM.

“There is a widespread belief that mediation is not suitable for personal injury cases. This belief is incorrect. Mediation is capable of arriving at a reasonable outcome in many personal injury cases, and bringing satisfaction to the parties in the process. However, it is essential that such mediations are carried out by mediators with specialist experience of personal injuries litigation.”1

Mediation: What’s in it for me?

Claimant solicitors suffer from the fact that theirs’ is not a cash business. Cases have to be funded from inception until often months after the claim has been settled when costs are finally recovered. As well as funding the work in progress (“WIP”), the disbursements have to be paid for. Although some of these can be deferred or funded they are generally a drain on the finances of the firm. Management consultants always recommend billing as soon as possible and recovering that money quickly. This does not get round the problem of not being able to bill until the claim settles. It follows that early settlement of cases can significantly ease cash flow problems. Where a case which is ready for settlement (that is not >

Why then are so few personal injury cases mediated? Partly it is due to the fact that it is a relatively new procedure and most personal injury lawyers have had no formal training or education in it and therefore are unfamiliar with it. A greater part of the answer is to do with a marketing failure of mediation providers. Marketing guru, Seth Godin, talks about the mistake of selling products to people for things they do not have a problem with. On the whole personal injury lawyers do not have a problem settling cases. If they did there would be many more trials than there are at present. Mediation does not appeal as a general purpose solution for settling personal injury claims, it needs to be targeted at specific cases. Mediation is often described as a tool in the dispute resolution toolkit. Mediation providers have to educate lawyers and insurers how to use it and help them identify that relatively small proportion of cases where it is most effective.

I will examine the carrots and sticks that lead to cases going to mediation. Of course there are benefits to clients but unless claimant lawyers, defendant lawyers and insurers can find

11

Does mediation have a role in personal injury dispute resolution?

REUTERS / Lucy Nicholson

> the same thing as being ready for trial) but negotiations have stalled, attempting mediation may be a way of unlocking the WIP tied up in the case. There are other less quantifiable benefits to settling claims, particularly old cases which have stagnated or become problem files. Claimants on CFAs have certainty when cases are settled.

Insurers, and, because of commercial realities, defendant solicitors want to reduce the life cycle of cases to release reserves and reduce the overall costs of settlement. Mediation does add a layer of cost, namely the mediator’s fee. For that reason alone it is a less attractive proposition to a JSM echoing the earlier point that it is unwise to market mediation as an alternative to JSMs where a JSM is just as likely to result in a settlement. For the cases where experienced insurers and their lawyers recognise the limitations of a JSM how does the mediator’s fee and the chance of not settling (10 per cent?) measure against the savings to be made from early settlement? Defendants also benefit from the certainty of resolving a claim.

Recent cases on costs penalties for not mediating The court can impose costs penalties on parties who unreasonably refuse to mediate because the refusal is conduct the court will consider under CPR 44.5 which identifies the factors to be taken into account by the court in deciding the amount of costs. In Halsey v Milton Keynes General NHS Trust2 Dyson L.J. said: “[the]factors which may be relevant to the question whether a party has unreasonably refused ADR will include (but are not limited to) the following: “ (a) the nature of the dispute; (b) the merits of the case; (c) the extent to which other settlement methods have been attempted; (d) whether the costs of the ADR would be disproportionately high; (e) whether any delay in setting up and attending the ADR would have been prejudicial; and (f) whether the ADR had a reasonable prospect of success.”

In Halsey, the court put the burden of showing the refusal was unreasonable onto the party making that assertion. This may have been a factor in the relatively few reported cases where a refusal to mediate has been held to be unreasonable and been penalised accordingly.

However, a couple of recent cases may demonstrate the courts are in fact increasing the use of penalties for refusing or ignoring offers to mediate. Refusals to mediate have been held to be unreasonable in the following two cases. In Rolf v De Guerin3 the claimant was awarded £2,500 from a claim that was put at £70,000 at trial. Rix L.J. said:

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“In the present case, even the offer, often repeated, for round-table discussions was spurned. No reason was given at the time, and the reasons advanced by Mr Guerin at this appeal do not bear real examination and are unreasonable. It is possible of course that settlement discussions, or even mediation, would not have produced a solution; or would have produced one satisfactory enough to the parties to have enabled them to reach agreement but which Mr Guerin might now, with his hindsight of the judge’s judgment, have been able to say did him less than justice. Nevertheless, in my judgment, the facts of this case disclose that negotiation and/or mediation would have had reasonable prospects of success. The spurned offers to enter into settlement negotiations or mediation were unreasonable and ought to bear materially on the outcome of the court’s discretion, particularly in this class of case.”

There were other factors in the case which led to the court substituting no order for costs for an order originally in the defendant’s favour. Rix L.J. indicated that given the refusal to mediate he would have been in favour of an award “somewhat, but not by very much, in favour of Mrs Rolf” but recognised the limitations under which the appellant court suffers as not being the court of trial.

In PGF II SA v OMFS Co4 the successful party was not awarded its costs because it unreasonably refused to mediate. It simply ignored the offer failing to give any contemporaneous reasons for doing so and

the court dismissed the reasons it belatedly gave at the costs hearing. Mr Recorder Furst QC said: “whilst there may be legitimate difficulties in mediating or successfully mediating these can only be overcome if those difficulties are addressed at the time.”

It is probable that there will be even more use of tactical invitations to mediate, such offers including a reminder of the potential costs consequences of an unreasonable refusal followed by pressing opponents to provide their reasons for refusing to mediate. This is tactical in the sense that it is laying the ground for a later challenge to the successful party’s claim for costs. In the personal injury field clearly insurers have the most to gain from such offers and claimants would be unwise to simply ignore them. Just because mediation has been offered does not mean the other party has to accept it.

There may be appropriate Halsey grounds for refusing or equally effective alternatives to use such as a JSM. What do mediators bring to the process?

Adding a mediator to a matter is adding a layer of expense. Is it justified and what precisely do you get for your money? In his book The Dynamics of Conflict Resolution,5 Bernard Mayer identifies four important ways that mediators alter the conflict: • They alter the structure of the interaction.

Parties and their representatives change their approach to accommodate the mediator with whom they are not in conflict. They alter the way they present issues and tone down their adversarial behaviour. The opposite can also be true and the presence of neutral provides the security people need to release more negative behaviour or feelings.

• They bring a personal commitment and vision. They join the process with beliefs about the potential for mediation to assist the parties, commitment to the process and a clear idea of how to proceed. Mayer goes on to say that energy and optimism are often the most important contributions a mediator can make.

• They bring sets of skills and procedures.

Mediators add a skill set to the dispute process including abilities in effective

communication, problem solving, reframing, negotiation and crisis management. They also have procedures or a sequence of stages the very existence of which is comforting to disputants and adds predictability and definition to the interaction process.

• They bring their values and ethics which define mediators’ most important commitments to their clients and profoundly affect the resolution process.

For example a mediator is likely committed to the search for a solution that adequately addresses each of the parties’ key concerns, by entering into the mediation the parties effectively commit themselves to searching for such an outcome themselves.

Mayer goes on to make the observation that mediators do not bring the best solution, the power to make people reasonable or any extra resources.

What do mediators do?

The above is an outline of what mediators bring but what do they actually do? Here it is worth distinguishing between problem solving mediation and mediating disputes where the parties will conduct position-based bargaining. Problem solving mediation involves the mediator in working to uncover the needs and interests6 of the disputing parties and getting beyond the positions they declare at the start of a negotiation. For instance, a party to a dispute may declare their position to be that they refuse to pay for goods supplied because they were sub-standard. Their needs and interests may be to retain good trading relations with the supplier because the goods supplied are an essential component of their own manufacturing process and there is no alternative reliable or cost competitive supplier. Understanding these needs and interests a mediator can help the parties work towards a solution that preserves a mutually beneficial ongoing business relationship which would most likely be lost had the dispute resulted in a winner and loser trial outcome. The solution may even uncover hidden benefits for both parties putting them both in an even better position than they would have been had they just won at trial. The so called win-win solution.

Personal injury claims are settled through the negotiation of an amount of money that the

insurer pays to the claimant. There is no pie to expand. There is no on-going relationship between the injured claimant and the paying insurance company. Thus the search for win-win solutions may be futile and the methods that are effective in resolving a boundary dispute or commercial dispute where the parties may have a continuing relationship will have limited application.

This is the importance of Sir Rupert Jackson’s reference to using mediators with specialist experience in this field of litigation – not just that they know what an Ogden Table is but they understand the nature of the conflict and how the parties approach it.

J. Anderson Little7 suggests three ways that mediators make the traditional bargaining that would take place at say a JSM more productive. These are facilitating the flow of information, facilitating case/risk assessment and facilitating movement in traditional bargaining. Facilitating the flow of information starts before the mediation.

The mediator can check with the parties that they have all the information they need from the other side to be able to negotiate effectively. A timetable for disclosure can be agreed and the mediation scheduled accordingly. This reduces the risk of mediating too early in the process which happens when one side or the other is not in a position to adequately assess the value of an offer.

The process continues throughout the mediation by assisting parties with the difficult decisions about disclosure where one side values information it has that their opponent does not. Such information may provide legitimacy to their claim by providing objective support. Other mediators will disagree with me but I do not think much of this exchange of information can happen in joint sessions at mediation, that is meetings at which the mediator and both teams are present as opposed to the private meetings mediators hold with the opposing sides.

David Richbell8 suggests that parties should not leave an opening joint session unless they can positively answer two questions – do I fully understand my opponents case and do they fully understand my case? My experience, certainly in personal injury mediation, is that parties are not ready to answer clarifying questions from the other side in early open sessions. I think David’s idea is desirable but not likely to be often realised in early joint sessions. >

13

Does mediation have a role in personal injury dispute resolution?

REUTERS / Fayaz Kabli

> The second role for mediators is facilitating case or risk assessment. A mediator would be foolish to assume a party to a personal injury mediation has not already worked hard on establishing its Best Alternative to a Negotiated Settlement or BATNA (see Getting to Yes9 for a discussion of the BATNA concept). This is an essential element of the preparation for any negotiation. It provides the answer to the question at what point do we walk away from this negotiation?

Any party that does not have a clear idea of its BATNA is unlikely to achieve an optimum negotiated solution. In private sessions the mediator can frame questions which encourage each side to think more completely and possibly objectively about the case, without offending or alienating the lawyers by suggesting they have not done their preparation properly. The reality is it is difficult ever to be fully prepared. You do not have the same incentive as your opponent does to come up with unfavourable interpretations of fact or law. Some new fact or interpretation is likely to come to light during the negotiation which will require reassessment of the case. In personal injury claims the mediator will work with each side to help them provide their own answers to the fundamental questions: What are your chances of winning? What will you get (or avoid paying) if you win? What are the recoverable and unrecoverable costs of that outcome?

For me it is the third role that Little describes, facilitating movement, that defines the difference between a JSM and a mediation.

A watchful mediator will not only have the skills and techniques to help the parties break deadlocks, he/she will also help them avoid the typical positional bargaining behaviour which leads to impasse. Parties attend personal injury negotiations with a range of settlement figures. If the claimant’s bottom figure overlaps the defendant’s top figure a deal can be done—there is a zone of possible agreement. If during a negotiation the parties fail to move adequately through their range the risk is that this zone will not be entered and the parties will miss the opportunity to settle. The task of the mediator is to help generate that movement, however slowly. This job is made more difficult by the fact that no matter how good a relationship the mediator has developed

14

TODAY ’S S O L I C I TO R

with the respective sides they will rarely share with the mediator their genuine walk away point until they actually get there.

In a typical personal injury mediation the parties will start with an apparently unbridgeable distance between them, that is why they are mediating. As Ward L.J. put it in an endorsement to Longmore L.J.’s postscript to a recent judgment:10 “The opening bids in a mediation are likely to remain as belligerently far apart as they were in correspondence but no-one should underestimate the new dynamic that an experienced mediator brings to the round table. He has a canny knack of transforming the intractable into the possible. That is the art of good mediation and that is why mediation should not be spurned when it is offered.”

The “canny knack” involves a focus on helping the parties generate movement through their declared (privately to the mediator) range of settlement and beyond through their private range. I will look at the “bid against myself” phenomenon to illustrate the point. There is a cultural understanding in positional bargaining negotiation that each side takes turns making an offer. A party invariably reacts negatively when they are asked to make what they perceive to be two consecutive bids. The reaction usually is that they will not do it and that can mark the end of the negotiation. A party may perceive that it is being asked to bid against itself when it considers the offer from the other side to be so far outside any realistic zone of settlement that it is not really an offer. This is more likely to occur very early in the negotiation.

This is a problem for mediators, a mediator who asks a party to bid against itself runs the risk of losing the trust and confidence of this party. The mediator in this situation can acknowledge that the party feels like they are the only negotiator in the process and with this understanding help generate options.

Typically the options generated will include walking away from the negotiation, telling the other side to come up with a realistic number or going back with a deliberately low (or high) ball offer. Although each of these reactions is understandable none are likely to take the negotiation forward or generate the kind of movement the other side needs

to make. The mediator will encourage the party to make an offer which will do that whilst indicating to their opponent what the realistic area for settlement is.

Why do some joint settlement meetings fail?

In preparation for delivering a mediation course to barristers’ chambers in the north west earlier this year I surveyed them about why JSMs had failed and what factors about a case indicated that a JSM would probably not be suitable. Responses included unrealistic expectations or intransigence on one side; genuine differences of opinion about law and/or fact; one side unwilling to settle; a breakdown of trust or respect between the lawyers; being too far apart in valuations; having a strong case and being confident of success at trial; fraud is an issue; the issues are complex. I do not say that because the parties consider a matter to be unsuitable for a JSM it should automatically be referred to mediation. On the other hand none of the factors listed above indicate that a mediation would not work. Unrealistic expectations for instance are worked on during the case and risk

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analysis stage. Often unrealistic expectation is on the part of the client rather than the lawyer and the risk analysis with a neutral third party can help to ground the client in the likely reality of the case. A breakdown in the lawyers’ relationship can be dealt with by the mediator using just private meetings.

The fact that the parties are too far apart is a perception. As Ward L.J.’s quote above indicates parties often start mediations “belligerently far apart” yet go on to settle the claim.

In conclusion, the point of mediation is that it is an effective method of settling difficult cases where the parties are far apart or there are other factors present that indicate a negotiation without the assistance of a skilled neutral is unlikely to succeed. It can produce commercial benefits to claimant solicitors, defendant solicitors and insurers alike.

Philip Hesketh J.P.I. Law 2012, 3, 194 - 199

Philip Hesketh is a full time mediator and member of the Trust Mediation panel. He is a former solicitor and APIL Senior Litigator. phil@heskethmediation.com 1. Review of Civil Litigation Costs: Final Report, December 2009

at p.361. See http://www.judiciary.gov.uk/publications-and-

reports/review-of-civil-litigation-costs/reports/civil-litigation costs-review-final-report [Accessed July 13, 2012].

2. Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ

576 at www.bailii.org/ew/cases/EWCA/Civ/2004/576.html

[Accessed July 13, 2012].

3. Rolf v De Guerin [2011] EWCA Civ 78 at www.bailii.org/ew/ cases/EWCA/Civ/2011/78.html [Accessed July 13, 2012].

4. PGF II SA v OMFS Co at www.bailii.org/ew/cases/EWHC/ TCC/2012/83.html [Accessed July 13, 2012].

5. B. Mayer, The Dynamics of Conflict Resolution: A Practitioner’s

Guide (San Francisco: Jossey-Bass, 2000).

6. R. Fisher and W. Ury, Getting to Yes (London: Arrow Books, 1997).

7. J.A. Little, Making Money Talk: How to Mediate Insured Claims

and Other Monetary Disputes (Chicago: ABA Publishing, 2007).

8. D. Richbell, Mediating Construction Disputes.

9. R. Fisher and W. Ury, Getting to Yes (London: Arrow Books, 1997).

10. Ghaith v Indesit Co UK Ltd [2012] EWCA Civ 642. .

Journal of Personal Injury Law is available in full-text on Westlaw UK. Email us your thoughts on this article to todayssolicitor@thomsonreuters.com

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CASE COMMENT

Divorce proceedings and the release of confidential documents to HMRC BARRIE AKIN In March 2012, Coleridge J. heard an application by HMRC in the Family Division of the High Court for an order for the production of some of the confidential documents and of the transcripts of the private hearings in the well-known Charman divorce proceedings.1 Tax practitioners can be forgiven for being unfamiliar with such applications: they are rarely made and are rarely successful. This one failed also, but is of considerable interest because it marks an attempt

by HMRC to enlarge the circumstances in which the Court may order disclosure of documentation normally protected by confidentiality. It also serves as a timely reminder for family law practitioners of the approach generally adopted by the court to tax irregularities that emerge in the course of divorce proceedings.

To understand why Coleridge J. refused HMRC’s application requires some understanding of the divorce law background. Financial remedy (formerly called ancillary relief) hearings in matrimonial disputes are still held in private. The authorities establish unequivocally that the reason for this is to encourage full and frank disclosure in what are semi-inquisitorial proceedings.5 Further, the parties cannot choose what information they wish to rely on; they are compelled to disclose all relevant information.6

Put shortly, the few authorities show that disclosure to HMRC is ordered only where there is an admission of tax evasion. But in Revenue and Customs Commissioners v Charman2 HMRC made it clear that they were not alleging any form of impropriety on the part of Mr or Mrs Charman in their tax affairs. HMRC nevertheless sought an Order for disclosure of the transcripts and other confidential documents because they, “will be of assistance in presenting the full facts to the First-tier Tribunal”,3. or, in Coleridge J.’s words:4

Accordingly, documentation produced under such compulsion, including documents created for the purposes of the financial remedy proceedings, are also confidential, as are transcripts of the proceedings and of any judgments issued in private. The Family Procedure Rules 2010 r.29.12 says:

“Mr. Nawbatt (for HMRC) contends that it is always in the public interest for the right amount of tax to be paid by tax payers and that these documents are directly relevant to the matters in issue before the tribunal. In particular, they would be helpful to the rebuttal of any case advanced by the husband if it differs from his case previously advanced before me. In other words, specifically, he wants to be able to use the transcripts and documents for the purposes of cross examining the husband especially if he seems to be presenting a case which is factually different to the one relied on by him.”

“Except as provided by this rule or by any other rule or Practice Direction, no document filed or lodged in the court office shall be open to inspection by any person without permission of the court and no copy of any such document shall be taken by, or issued to, any person without such permission.”

The Court has a discretion as to whether to permit disclosure of such confidential documents to third parties.7 As regards disclosure to HMRC, the three significant High Court decisions are S v S (Inland Revenue: Tax Evasion), R v R (Disclosure to Revenue)8 and A v A ; B v B.9 In S v S, Wilson J. had already held, as part of the confidential ancillary relief proceedings, by inference from the evidence (but with no actual admission by >

17

Divorce proceedings and the release of confidential documents to HMRC generally not, because the public interest in full and frank disclosure will usually outweigh it.

In A v A; B v B,12 two husbands had concealed from their wives that they were owners of the company that employed them and had taken steps through offshore arrangements to reduce the profits of that company.

They initially maintained the deception in their divorce proceedings but eventually admitted the truth. It appears that HMRC were as ignorant of the true position as the wives had been. Charles J. accordingly considered whether the Court should of its own motion send papers in the case to HMRC. He decided not to do that on the footing that the respondents would themselves make disclosure to HMRC of certain matters “relating to the evasion or non-payment of tax”. In a long and (admittedly obiter) judgment Charles J. made it clear that the same general underlying considerations should apply when the Court was considering the disclosure of papers of its own motion as in cases whether the third party was applying to obtain or retain the papers. He also agreed with Wilson J. that: “… decisions relating to disclosure involve and turn on an assessment of the weight of competing public interests in the circumstances of each case”.

Following a thorough analysis of the principles, Charles J. concluded that: REUTERS / Victor Fraile

> the husband) that the husband had been guilty of tax evasion. The wife’s brother sent a copy of Wilson J.’s confidential judgment to the Inland Revenue. The Revenue very properly applied to the Court for permission to retain that document. Wilson J. refused the application. Dealing with the general principles, he said:10 “It is greatly in the public interest that all tax due should be paid and that in serious cases, pour encourager les autres, evaders of tax should be convicted and sentenced. … On the other hand it is greatly in the public interest that in proceedings for ancillary relief the parties should make full and frank disclosure of their resources and thus often aspects of their financial history. Were it to be understood that candour would be likely to lead – in all but the very rare cases – to exposure of underdeclarations to the Revenue, the pressure wrongfully to dissemble within the proceedings might be irresistible to a far bigger congregation of litigants than is typified by the husband in these proceedings.”

“…. when a court is satisfied that there are liabilities to the Revenue, or material that ought to be disclosed to the Revenue to enable them to investigate whether there has been evasion or non-payment of tax, the private interests of parties to ancillary relief proceedings in avoiding disclosure to the Revenue of that conclusion, and the material on which it is based, so as to enable them to benefit from the non-payment of moneys lawfully due to the revenue …. cannot found an argument that it would be unfair, or unjust, or contrary to the public interest for such disclosure to be made”.

Wilson J. followed the same approach in R v R (Disclosure to Revenue).11 This time, however, tax fraud was admitted and Wilson J. ordered that HMRC could retain the documents.

This approach differs from the one adopted by Wilson J. in the circumstances of S v S. In refusing HMRC’s application, Wilson J. gave the public interest of promoting of full and frank disclosure primacy, except where there is tax fraud—and admitted tax fraud at that. Charles J. weighed the competing public interests more evenly, without any bias in favour of the promotion of full and frank disclosure. In addition, in using the expressions “evasion or non payment of tax” and “liabilities to the Revenue” Charles J. appeared to contemplate the possibility of disclosure to HMRC in cases where tax evasion is not a factor.

The clear message from these decisions is that cases of admitted tax evasion may lead to disclosure, but that cases falling short of that level of culpability will

However, “non payment of tax” is itself an ambiguous phrase and it is likely in the context of the case that

He went on to weigh the public interest of due payment of tax and the punishment of tax evaders against the public interest in parties to ancillary relief proceedings making full and frank disclosure. His reasons for not permitting the Inland Revenue to retain the document were largely based on the fact that fraud was not admitted, but was inferred by the judge from surrounding circumstances. In those circumstances, the public interest in securing full and frank disclosure prevailed.

18

TO DAY ’S S O L I C I TO R

Charles J. did not intend to draw a sharp distinction between “evasion” and “non payment”. The straightforward failure to pay a liability that is admittedly due cannot be the kind of “non payment” that Charles J. had in mind and since Charles J. recognised that taxpayers cannot conceal liabilities from HMRC by silence, it is far more likely that his choice of words was intended to cover both the deliberate deception of HMRC by misrepresentation and the failure to draw liabilities to HMRC’s attention by omission from returns – itself of course a criminal offence.13 In Clibbery v Allan,14 the Court of Appeal reviewed the authorities on the disclosure of confidential litigation material to third parties. Dame Elizabeth Butler-Sloss P., in discussing A v A; B v B,15 made it clear that she considered that Charles J. was dealing with cases of “tax evasion or other tax impropriety”.

The hearing of HMRC’s application in Charman [2012] EWHC 1448 (Fam); [2012] B.T.C. 145 was in private and Coleridge J.’s published judgment does not say in terms that HMRC’s argument was based on Charles J.’s formulation in A v A; B v B. However, in view of the approach of Wilson J. in S v S and R v R, it is difficult to see how HMRC’s application could have had any realistic prospects of success without seeking to use Charles J.’s approach. In refusing HMRC’s application, Coleridge J. summarised his view of the law by saying:16 “As a general rule documents and other evidence produced in … financial remedy proceedings … are not disclosable to third parties outside those proceedings save that exceptionally and rarely and for very good reason they can be disclosed with leave of the court. The fact that the evidence may be relevant or useful is not by itself a good enough reason to undermine the rule.”

He went on to say:17 “I have no hesitation in finding that there is nothing rare or exceptional about this case which takes it outside the general rule … I am fortified in this view by the fact that … there is no suggestion that the husband is guilty of tax evasion or criminal conduct in relation to his tax affairs. This is a routine tax assessment.”

So Coleridge J.’s approach was essentially the same as Wilson J.’s in S v S and R v R and any suggestion that HMRC may have recourse to confidential divorce papers merely as a means of testing the evidence that may be adduced in the Tax Tribunal was firmly rejected.

A further issue was raised by the judge in the final paragraph of his judgment. He said: “If, of course the husband himself wishes to rely upon documents/evidence he produced during the hearing in front of me he may have leave to do so but in that event all relevant material must be produced to the Tribunal not just highlights he selects which support his case.”

At face value, this may suggest that practical difficulties could arise for a taxpayer who wishes to rely on some confidential documents used in the divorce. If, in the tax appeal, he decides to rely on a document that was before the divorce court, does that not require all such documents to be brought in? That is not, it is submitted, correct.

The answer to this question lies in how confidentiality operates. Documents which exist independently of the financial remedy proceedings (e.g. the husband’s bank statements) do not become confidential for all purposes simply because they are put in evidence in those proceedings. It is the other party to the proceedings that is bound by confidentiality as regards those documents. This is generally referred to as the implied undertaking as to confidentiality. See, for example, Clibbery.18 By way of contrast, evidence created for the purposes of or in the course of the financial remedy proceedings, such as experts’ reports and transcripts of the hearings and confidential judgments are regarded as confidential for all purposes.

Conclusion Coleridge J.’s judgment is a clear statement that it is only in exceptional circumstances that confidential divorce documentation will be disclosed to HMRC. It is consistent with the preponderance of authority and reflects the policy of the family courts to encourage full disclosure. It was a difficult, not to say a speculative application on HMRC’s part.

In addition, the practical consequences if HMRC’s application had succeeded could have been far-reaching. To what extent would it have become a matter of routine that the confidential financial aspects of divorces would have to be divulged to HMRC? Would there have to be a current tax investigation or enquiry or appeal? Who would decide which parts of the evidence should be disclosed as being relevant to a person’s tax affairs and which parts should remain confidential?

How would the decision-maker know enough about the person’s tax affairs to know what was relevant? How would an aggrieved party (including HMRC) challenge the decision? For the moment at least these questions can remain hypothetical and need not be answered, so that practitioners can assume that the status quo will remain undisturbed.

Barrie Akin P.C.B. 2012, 5, 192-195

Barrie Akin is a Barrister at Gray’s Inn Tax Chambers, London.

1. See Revenue and Customs Commissioners v Charman [2012] EWHC 1448

(Fam); [2012] B.T.C. 145. For the reported divorce proceedings, see Charman v

Charman [2006] EWHC 1879 (Fam); [2007] 1 F.L.R. 593 and 1237 and 1246.

2. Revenue and Customs Commissioners v Charman [2012] EWHC 1448 (Fam);

[2012] B.T.C. 145 (Judgment released May 29, 2012).

3. Charman [2012] EWHC 1448 (Fam); [2012] B.T.C. 145 at [10] 4. Charman [2012] EWHC 1448 (Fam); [2012] B.T.C. 145 at [9].

5. See the Matrimonial Causes Act 1973 s.25, which imposes a duty on the Court

to have regard to all the circumstances of the case when deciding whether to

exercise its ancillary relief powers.

6. See Clibbery v Allan [2002] EWCA Civ 45; [2002] Fam. 261.

7. S v S (Inland Revenue: Tax Evasion) [1997] 1 W.L.R. 1621; [1997] 2 F.L.R. 774

Fam Div.

8. R v R (Disclosure to Revenue) [1998] S.T.C. 237; [1998] 1 F.L.R. 922 Fam Div. 9. A v A (Ancillary Relief) [2000] 1 F.L.R. 701; [2000] 1 F.C.R. 577 Fam Div. 10. S v S [1997] 1 W.L.R. 1621; [1997] 2 F.L.R. 774 Fam Div at 777.

11. R v R [1998] S.T.C. 237; [1998] 1 F.L.R. 922 Fam Div. 12. A v A ; B v B [2000] 1 F.L.R. 701; [2000] 1 F.C.R. 577 Fam Div. 13. See R. v Mavji [1987] 1 W.L.R. 1388; [1986] S.T.C. 508 CA (Civ Div).

14. Clibbery [2002] EWCA Civ 45; [2002] Fam. 261.

15. A v A ; B v B [2000] 1 F.L.R. 701; [2000] 1 F.C.R. 577 Fam Div at [71].

16. Charman [2012] EWHC 1488 (Fam) at [22].

17. Charman [2012] EWHC 1488 (Fam) at [24] 18. Clibbery [2002] EWCA Civ 45; [2002] Fam. 26

Private Client Business is available in full-text on Westlaw UK. Email us your thoughts on this article to todayssolicitor@thomsonreuters.com

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AUTHOR PROFILE

JOANNA GLYNN QC Joanna Glynn QC took silk in 2002 and practises from 1 Crown Office Row, London. She has acted for many of the UK healthcare regulators in an advisory capacity and appears before their various disciplinary tribunals for both registrants and regulators.

For 12 years she was a contributing editor of Archbold Criminal Pleading, Evidence and Practice and she has sat in the Crown Court as a Recorder since 1997. The Regulation of Healthcare Professionals: Law Principle and Process is out now.

Could you tell us about your professional background?

I did a civil and then a criminal pupillage (the norm in those days). At that early stage (1984) it was the trial process, whether in a remote magistrates’ court or by jury, that enthused me. My pupil master, Nicholas Purnell QC, was then Treasury Counsel at the Central Criminal Court, so I was fortunate to see the best at that impressionable age. Later, my respect for the values and ethos of the profession I had joined was enhanced by undertaking trial observations in jurisdictions in which many of the safeguards afforded here to the accused are absent. I was lucky to be given the opportunity to develop a varied criminal practice at the chambers in which I did my second six months pupillage, and this evolved from the early 1990s to include regulatory tribunal work. The regulatory cases I took on were usually both legally and factually interesting and before long regulatory work came to dominate my practice. I moved to 1 Crown Office Row in 2008 where I have practised in professional discipline and crime with a medical focus ever since.

Why did you choose to specialise in professional regulatory and disciplinary work?

The diversity and fascinating subject matter of disciplinary cases was the primary draw. Rarely does a legal professional have the opportunity to learn in some detail about IVF, the MMR vaccine, the regulation of medical research, how hospitals are run, the intricacies of surgery, psychiatry, nursing, dentistry, and so on. The fact that I could utilise in a tribunal setting my knowledge of the criminal rules of evidence and some of the skills I had acquired in the criminal courts made the choice an easy one.

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TO DAY ’S S O L I C I TO R

How has healthcare regulatory practice changed since you first started?

I think it is fair to describe the field in the mid 1990s as the “wild west,” in the sense that its governing legislation and jurisprudence was wholly undeveloped. An egregious example was the absence until 2000 of any provision or guidance on the regulators’ duties of disclosure of unused material to the registrant in disciplinary proceedings. Furthermore, there were major differences between the nine healthcare regulators, some using the civil and some the criminal standard of proof, along with inexplicable differences in procedure and approach.

There have been significant changes since my early days working in this field, most of which are described in Chapter 1 of the book. However, as the CHRE and the joint Law Commissions in their consultation paper of March 2012 on the regulation of health and social care professionals, have commented recently, there is still a need to develop greater consistency and an identification of purpose across the nine healthcare regulators.

What do you think are the key challenges facing practitioners in this field today?

Keeping up with the pace of change remains a serious challenge. Lord Justice Brooke in his Foreword to our Fitness to Practise book of 2005, described the fields of law and practice covered in the book as “by no means straightforward,” continuing, “Health care regulation is on the move. Parliament and the professions have introduced major changes. More are to come...Lawyers and administrators who hold themselves out as competent to act in this field have a lot of learning to do.” His prediction that there was more to come was right. We have designed this book to mitigate the challenges of complexity and continuing change by focusing on clarity and accessibility of subject matter, and by including references to the joint Law Commissions’ recommendations where appropriate.

Can you describe any interesting cases you have dealt with?

There have been so many, especially in healthcare regulation, but an early eye-opener involved allegations of murder and satanic abuse in Epping Forrest.

Being flown in a client’s private jet to the South of France for a conference among his dazzling collection of impressionist paintings was interesting, but his case was not, so perhaps that doesn’t count!

The Regulation of Healthcare Professionals: Law Principle and Process is a new title. What led you to become involved in working on this?

In fact, this title is an updated and expanded version of our Fitness to Practise: Health Care Regulatory Law, Principle and Process (Sweet & Maxwell 2005). The 2012 book covers all the developments of the last seven years in fitness to practise, but it also covers registration, CPD and revalidation, NHS complaints and discipline, and other topics beyond the scope of “fitness to practise”. The publication was driven by the need to update the 2005 book, evidenced by numerous enquiries as to when the second edition would be published, with the equally obvious need for a user-friendly guide to the law and procedure relating to the wider regulatory cycle.

What are the key recent developments that you have covered?

There have been extensive developments in the legislation and jurisprudence relating to almost every part of this discipline, but I suppose the development that will affect the largest number of registrants in their day to day professional lives is the long-anticipated implementation of revalidation for doctors (in October it was announced that this will commence in December 2012). The book devotes an entire chapter to this topic (Chapter 18). The registrants’ legal representatives will be more directly concerned with the changes in adjudication at the GMC, the increasing use of consensual disposal of complaints, the development of the jurisprudence on the engagement of article 6 of the ECHR at various types of disciplinary hearing,

the vast amount of new guidance published by the regulators and the changes effected by the Health and Social Care Act 2012, including those to the Council for Healthcare Regulatory Excellence (the Professional Standards Authority for Health and Social Care, as it is to become).

How do you manage your time between being an author and your day-to-day work?

The authors’ experience of practice in the field is a crucial component of a user-friendly text book of this sort; it informs decisions as to the topics that are included and their presentation. However, writing such a book whilst in practice requires stamina and efficiency. My attempts at efficiency in this context have been limited to endless lists of tasks to be undertaken, with each task allocated a period of time. Regrettably the timetable often proved to be optimistic.

Do you have any other projects on the horizon you can tell us about?

No, I will be concentrating on my practice for the time being.

How do you relax in your spare time?

With difficulty; there is not much of it. Having only recently finished the book I shall have to rediscover the pleasures of being in Spain, my favourite destination for relaxation, without taking work with me.

THE Regulation of Healthcare professionals: Law, Principle and Process, 1st Edition Joanna Glynn QC, David Gomez November 2012

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