1161 Clapham Omnibus Feb 09 Interactive 02


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1161 Clapham Omnibus Feb 09 Interactive 02

  1. 1. Contents Contents ON LA ND W O Publishers of The Clapham Omnibus Magazine for UTH L SO CIETY SO the South London Law Society PUBLISHER Introduction Benham Publishing Limited 4th Floor, Orleans House, 4 List of officers 2009 Supplier Directories Edmund St, Liverpool, 4 4 Application for Membership Membership Renewal L3 9NG & Magazines Tel: 0151 236 4141 Fax: 0151 236 0440 5 President’s Review email: admin@benhampublishing.com News Benham Publishing produce web: www.benhampublishing.com 6 Council Report directories for Regional Advertising and Features Editor Geoff Gubb 7 The Welfare Reform Bill 8 Respected by clients, rewarded by peers Development Agencies and STUDIO MANAGER 9 South London Law Society & London South Bank University Fern Badman Chambers of Commerce. We Practice ADMIN MANAGER are also proud to publish Lynn Noord 10 Corporate documentation... a time for review 12 Chasing the Dragon magazines for county NHS ACCOUNTS Joanne Casey 14 Electronic Document Storage 15 Contract Locum Ambulance Trusts, Fire & MEDIA No. 1161 16 Success fees: Risk? What risk? Rescue Services and Law PUBLISHED Education Societies throughout the UK. February 2009 © Benham Publishing Ltd 17 The University of Huddersfield School of Law LEGAL NOTICE 18 School Admissions © Benham Publishing Limited. Evacuation Planners None of the editorial or photographs may be Criminal reproduced without prior written permission from As a consequence of the Civil Contingencies Act, the publishers. Benham Publishing Limited would 20 Anti-money laundering compliance – keeping it proportionate like to point out that all editorial comment and Local Authority Emergency Planning Officers use, as 22 Countering Fraud in the Recession articles are the responsibility of the originators part of their resilience programme, city centre and may or may not reflect the opinions of 30 Recent Developments in Confiscation evacuation planners. We are instrumental in helping Benham Publishing Limited. No responsibility can to produce them. be accepted for any inaccuracies that may occur, Probate correct at time of going to press. With our free Ordnance Survey Licensing service 26 Problematic Probate Disclaimer (through A-Z Mapping), we can design and organise The South London Law Society welcomes all 28 Increasing Statutory Legacy your agreed evacuation zones to be printed in chosen persons eligible for membership regardless of quantities for further distribution. They can also be Sex, Race, Religion, Age or Sexual Orientation. Book Review duplicated onto CD-Rom and into magazines. All views expressed in this publication are the 29 Craies on Legislation views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion Family Law Business Continuity between member and should not be relied upon Benham can supply business continuity booklets to as an accurate statement of the law, are of a 30 Collaborative Law general nature and do not constitute advice in any assist with the promotion, especially to SMEs, of the particular case or circumstance. need to have sound business continuity planning. Property Members of the public should not seek to rely on These booklets are written by us and will warn and anything published in this magazine in court but 30 Keep a close eye on your tenants inform businesses, large and small, how to tackle seek qualified Legal Advice. continuity after disaster - and more importantly how to prepare for the unforeseen. benham publishing ltd 4th Floor, Orleans House, Edmund Street North, Liverpool L3 9NG For further information please call Telephone: 0151 236 4141 Facsimile: 0151 236 0440 Ian Fletcher on 0151 236 4141 or email Email: admin@benhampublishing.com www.benhampublishing.com ianfletcher@benhampublishing.com The Clapham Omnibus 3
  2. 2. Introduction Introduction Officers President’s Review President Vice-President Hon. Secretary and Council Member Andy Unger Andy Unger Robert Hush David Taylor Tel: 020 7815 6344 Tel: 020 7663 8615 Tel: 020 7228 0017 e-mail: ungerad@lsbu.ac.uk e-mail: r.hush@howardkennedy.com e-mail: dxt@hanne.co.uk Treasurer Magazine Editor Web Address John Weaver Robert Oliver Tel: 020 8394 6547 e-mail: r.oliver2803@btinternet.com www.southlondonlawsociety.co.uk e-mail: john.weaver@russell-cooke.co.uk SOUTH LONDON LAW SOCIETY APPLICATION FOR MEMBERSHIP SURNAME: . . . . . . . . . . . . . . . . . . . . . . . . . . Mr/Mrs/Miss/Ms SIGNATURE: . . . . . . . . . . . . . . . . . . . . DATE: . . . . . . . . . . . . Hello, welcome to the second edition of Solicitor General, Vera Baird MP QC. The Guest of Honour was Linda Lee, the Deputy FORENAMES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SUBSCRIPTION RATES the Clapham Omnibus – the free Journal Vice President of the Law Society who pledged the Law Society’s continuing support FOR SUBSCRIPTION PERIOD: 1 January 2008 to 31 December 2008 of the South London Law Society. for Legal Aid clients and Legal Aid firms. The Dinner was considered to be a great FIRM: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . success and we hope to see you at one of our social or professional events soon. For Full Membership: . . . . . . . . . . . . . . . . £25 per annum . . . These are difficult times for all of us, with further news from the Law Society, please see the Report of our Honourary Secretary ADDRESS/DX: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Up to 3 years post qualification: . . . . . £15 per annum . . . firms suffering from the effects of the and local Council Member, David Taylor on page 6. ................................................. Trainee Solicitors only: . . . . . . . . . . . . . Free Membership . recession and many also suffering from the recent Legal Aid reforms. We will be With regard to our twinning link with the Law Association of Zambia and our EMAIL: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Firm Membership: offering our members two free CPD collaborative Access to Justice Project, we are awaiting official confirmation but we Up to & including 5 partners/solicitors £60.00 per annum . events in our current CPD programme have heard unofficially that our application to the Law Society Charity for further funding STATUS: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 to 15 partners/solicitors . . . . . . . . . . £110.00 per annum (see page 9). The first of these will be has been successful. This is good news, and with our support LAZ are planning the 16+ partners/solicitors . . . . . . . . . . . . £160.00 per annum held at 6.30pm on Tuesday the 24th of next two Access to Justice events, to be held in Lusaka in March 2009. One will be for DATE OF ADMISSION AS A SOLICITOR: . . . . . . . . . . . . . . . . February at London South Bank Civil Society Organisations and Advice Workers and one will be for the Judiciary and Please copy this form and return it, completed, to: University (where I am Head of the Law the Legal Profession. We are also hoping to invite LAZ to hold their AGM in London in I wish to apply for: FULL/ASSOCIATE/TRAINEE Membership John Weaver Department) and the topic will be Legal April 2010. Please contact us if you would be interested in helping with the twinning link of the Society. Treasurer - South London Law Society Aid: Surviving Carter. We have gathered or any of our other activities. We are particularly keen to get some help in organising Russell-Cooke Solicitors, DX: 59456 Putney together leading Legal Aid solicitors to more social events, so if you have a good idea, please get in touch. The South London Law Society may/may not contact Tel: 0208 394 6573 Fax: 020 8785 4286 discuss the reforms and how their firms me/my firm by email. Please make cheques payable to the South London Law Society are coping with them. Speakers will At LSBU, local practitioners continue to support our students and our courses and include Sir Geoffrey Bindman of Bindman have recently helped us as to develop new, vocationally oriented Masters courses, & Partners, Laura Janes of the Young including the LLM Crime & Litigation, the LLM Human Rights & Development and a Legal Aid Lawyers and Stephen Hewitt of new course aimed at European Civil Law students and practitioners, the LLM Common Fisher Meredith. The evening offers an Law. We are also currently looking to expand placement and volunteering opportunities SOUTH LONDON LAW SOCIETY opportunity for our members to discuss for our students, so please contact us if you can help. Thanks very much. MEMBERSHIP RENEWAL the reforms and exchange ideas in a collegiate atmosphere, preceded by food We aim to publish three editions of the Journal a year, Autumn, Spring and Summer, SURNAME: . . . . . . . . . . . . . . . . . . . . . . . . . . Mr/Mrs/Miss/Ms The Annual Subscription for the present financial year is as & drinks offered by the Law Department. and welcome contributions from our readers. If you have a suitable article, please follows: submit it to the editor, Robert Oliver, at r.oliver2803@btinternet.com FORENAMES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SUBSCRIPTION FROM 1 January 2008 TO 31 December 2008 Recent events have included our AGM and our Annual Dinner. The AGM was Andy Unger FIRM: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Category 1: Ordinary Member . . . . . . . . . . . . . . . . . £25.00 held on October 21st 2008 at LSBU and President of the South London Law Society accompanied by a reception and a free ungerad@lsbu.ac.uk DATE: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Category 2: A member during the first . . . . . . . . . . £15.00 CPD Lecture on Client Care. The entire 3 years only following the date committee stood for re-election and were I confirm that I am happy to be contacted at the following of admission; a member employed elected unopposed. Our Annual Dinner email address: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . full time as assistant to another was held on November 28th, 2008 at the solicitor; or a consultant House of Commons, courtesy of the Please copy this form and return it, completed, to: John Weaver Category 3: Firm Membership: Treasurer - South London Law Society (i) Up to & including 5 partners/solicitors . £60.00 Russell-Cooke Solicitors, DX: 59456 Putney (ii) 6 to 15 partners/solicitors . . . . . . . . . . £110.00 Tel: 0208 394 6573 Fax: 020 8785 4286 (iii) 16+ partners/solicitors . . . . . . . . . . . . £160.00 Please make cheques payable to the South London Law Society Annual Subscription: . . . . . . . . . . . . . . . . . . . . . . . . . . . £ . . . . Add previous arrears/deduct previous overpayments . £ . . . . Amount Due . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . £ . . . . 4 The Clapham Omnibus The Clapham Omnibus 5
  3. 3. News News Council Report The Welfare Reform Bill David Taylor Hon Secretary and Council member. Vice President - Robert Hush is a partner at Howard Kennedy solicitors in London and a family law specialist. He is a member of the Law Society’s Family Law Committee and the Resolution Training Partner in H.C.L.Hanne & Co, Clapham Junction. Graduated from the University of Kent at Committee and is a member of the association’s panel of Approved Trainers. Canterbury in 1976 with a degree in Social Policy & Administration. He then joined the Citizens Languages: French Advice Bureaux service, working in Sheffield & London, specialising in welfare benefits and www.howardkennedy.com employment. He was the manager of Battersea CAB for 10 years. He joined Hanne & Co in 1988 and was admitted as a solicitor in 1994. His practice is in employment law. He is a member of the Employment Lawyers Association, Association of Regulatory and Disciplinary Lawyers and the Industrial Law Society. He is an accredited mediator through the Centre for Effective Dispute Resolution. He was president of South London Law Society from 2003 to 2006. On 3 December 2008 the In the present form of the Bill, exceptions to the new proposed rule are: Queen’s Speech set out the new legislative agenda for (a) that by virtue of section 41 of the Human Fertilisation and Embryology Act 2008 the the coming year, including child has no father, The last year has been a I will also draw your attention to the various toolkits that are available for free and The Welfare Reform Bill, fairly catastrophic one for the downloadable from the website including one for small businesses and another for which received its Second (b) that the father has died, High Street in particular, legal aid. Finally there are links to pastoral care sites such as Lawcare and the Reading in the Commons on conveyancing. The Law Solicitors Assistance Scheme. These organisations provide support and free help and 27 January 2009. There are (c) that the mother does not know the father’s identity, Society is doing everything advice to practitioners suffering from either financial or personal problems. 2 items of particular interest in their power to mitigate the for family lawyers. (d) that the mother does not know the father’s whereabouts, effects of this recession on I would also draw your attention to the review of regulation which has been set up by our practices. The Officers the Law Society under the auspices of the Rt Hon Lord Hunt of Wirral MBE. Lord Hunt Birth Registration (e) that the father lacks capacity (within the meaning of the Mental Capacity Act 2005), and the Chief Executive have is now calling for evidence and if you have any thing to say about how regulation has met with the British been conducted in recent times then you should contact the review which you can do The first is the proposed new (f) that the mother has reason to fear for her safety or that of the child if the father is Association of Bankers and by visiting the website at www.legalregulationreview.com. Lord Hunt as some of you requirements for the birth registration of contacted in relation to the registration of the birth, and we have been lobbying may know is a solicitor and was a great ally in the passage of the recent Legal Services children. The new legislation would government. Act. We had a recent report by Lord Ousley on the disproportionate effect of SRA require that both the mother and father of (g) any other conditions prescribed by regulations made by the Minister. intervention and discipline on BME members of the profession. In addition, there is a a newborn would be obliged to be The Society has also set up a review of general feeling that the SRA choose to exercise their most stringent powers upon entered on the birth certificate unless the It remains to be seen how in practice the new legislation will sit with the governments Professional Indemnity Insurance we are smaller practices. You may be aware that the SRA are now embarking upon entity base registrar deemed it impossible, existing commitment to combating domestic violence and to what extent such aware of a significant number of regulation that is regulating practices rather than individuals. It is these issues and impractical or unreasonable. considerations might deem joint registration unreasonable. practices that were let down at the last many more that will occupy this review. If you do make any submissions to the review I minute by their brokers and some of should be very grateful for a copy. On average, about 45,000 children are Enforcement of Child Maintenance these have even have had to go into the registered each year with only one Assigned Risk Pool. Council is I am a member of the Membership Board of Council and it is our responsibility to try to parent’s name on the birth certificate. A The second is the proposed new powers for the Child Maintenance Commission, the investigating as to whether having the ensure that we put in place an adequate system whereby we as Council Members can father who is not named on a birth body responsible for collecting statutory child maintenance. Such powers would one date each year on which every firm’s communicate with our constituents and vice versa. Unfortunately as it seems with all certificate and is not married to the enable the state to seize travel authorisations and driving licences from parents who insurance has to be renewed is an large-scale IT projects this particular one has been beset by problems. However, we mother does not have Parental defaulted on child maintenance payments. advantage to the profession or not. would hope to have such a system in place by the end of this year. This system will Responsibility. He does not have the allow the Society to communicate with interest groups within the profession for instance right to be involved in decisions about a In the Bill “travel authorisation” means: In addition, the Society has been sending on the basis of categories of work, demographic groups, geographical etc. child’s upbringing, including schooling, regular messages to the profession medical treatment and religion, but may (a) a United Kingdom passport (within the meaning of the Immigration Act 1971); through Professional Update which we The Membership Board and Council are also engaged in somewhat of a struggle with later acquire Parental Responsibility by should all should be receiving via e-mail. the SRA in regard to the ownership of accreditation schemes. When the regulation and formal agreement with the mother or by (b) an ID card issued under the Identity Cards Act 2006 that records that the person to The Society’s webpage has many links to representative arms were split the accreditation schemes by default were put under the order of the court. whom it has been issued is a British citizen.” information on how best to survive the auspices of the SRA. Council’s position is that apart from the statutory schemes for recession. The website gives you advice High Rights of Audience and insolvency and the rest of the schemes such as personal The government’s proposals are The government hopes to reduce the number of parents who do not receive the on how to handle redundancies and on injury, family law etc should revert back to the representative arm. This as I have said designed to promote the involvement of maintenance that has been assessed for the benefit of their children. such things as negotiating with HMRC in above is meeting with resistance from the SRA and I hope to report the outcome of this both parents from birth, strengthen the Before making a “disqualification order” against a person, the Commission would have regard to the rescheduling of payment of in my next bulletin. involvement of both parents in family life to consider whether a person needs the relevant document in order to earn a living, but tax and VAT. I thoroughly recommend and promote shared parenting. nonetheless, the Bill has far reaching implications for the relationship balance between these sites to you and hope that they I hope that you will see from a selection of council activities that I have listed above that the individual and the state and will not be without its critics. prove useful to your particular the representative Law Society is now engaging in activities to advance the best circumstances. interests of the profession. If you have any suggestions, comments or criticisms about Robert Hush the work of the Society then please contact me on my e-mail at dxt@hanne.co.uk Howard Kennedy www.howardkennedy.com 6 The Clapham Omnibus The Clapham Omnibus 7
  4. 4. News News Respected by clients, rewarded by peers South London Law Society & In just seven years since it management and customer care standards, while Investors in People provides a flow and credit control London South Bank University was founded, a niche law firm framework for improving performance and competitiveness through training and • Winning more has established itself at the development. TPP Law became only the tenth firm nationally to achieve the exacting contracts, especially Programme of Continuing Professional Development Events 2009 forefront of its field, winning new standards of Lexcel version 4. from public sector not only the respect of its clients who expect law Seminars start at 6.30 pm (unless otherwise indicated). Refreshments are available from 6.00pm. clients but its peers too. Lexcel accredited practices undergo rigorous independent assessment every year to firms to demonstrate ensure they meet required standards of excellence in areas such as client care, case value for money and Seminars are held in the London South Bank University Keyworth Centre. See TPP Law – until recently known as The management and risk management. evidence of quality http://www.lsbu.ac.uk/about/maps.shtml for a map and directions to the Keyworth Centre, LSBU. Projects Partnership – specialises in during tenders For further information on events please contact: info.esu@lsbu.ac.uk working with public authorities and not- TPP Law is audited annually by Quality South East, which provides assessment and • Increased self for-profit organisations in areas which post recognition support for all organisations working with the Lexcel Standard and confidence. Lexcel and Date Topic Lecturer include education, housing, health and Investors in People. IIP have been badges 2009 social care. It has recently won a Law of honour, instilling a Society Excellence award for its practice Benefits of Lexcel and Investors in People for TPP Law sense of pride and Tuesday 24th February Legal Aid - Surviving Carter Chair: Andy Unger management standards. Mark Johnson, Managing Director, who jointly founded the firm with Director Graham achievement in 6.30pm Burns in 2001, said: “Achieving Lexcel and Investors in People has helped us attract managers and staff Panel inc: Staff at TPP Law have proved that having and maintain motivated, talented professional and support staff, and to instil a clear set Note: Lucy Scott Moncrieff, the right systems in place can reassure of values and expected behaviours to maintain reputation and high standards of The updated Lexcel This is a Free Lecture Laura Janes, public sector clients that objective service. Standard not only requires Stephen Hewitt, & monitoring systems have been applied policies and plans to be * Note Revised Date Sir Geoffrey Bindman and reached. For TPP Law these include “As to winning the Law Society award, this has cemented the sense of pride and put in place, but also that a carefully thought out management achievement which our managers and staff have in Lexcel accreditation.” they are reviewed and Tuesday 10th March Restraint, Confiscation and Deepak Singh, framework and accreditations in Investors updated at least annually, 6.30pm Money Laundering & the Crown Prosecution Service in People and Lexcel. Lexcel accreditation has brought many benefits to the firm, including: and in certain areas, such Proceeds of Crime Act 2002 • Increased profitability by avoiding costly mistakes and managing risks, costs have as the business continuity Lexcel is awarded by the Law Society to been reduced and fee income increased plan, tested. The new Tuesday 24th March Human Rights Law Update Sir Geoffrey Bindman, solicitors that meet the highest • Improved financial management through applying Lexcel’s discipline improved cash standard places more 6.30 pm Solicitor, Bindman & Partners, emphasis on the Visiting Professor at LSBU technology that is needed Joel Bennathan, in a modern law firm. Barrister at Tooks Court Imran Khan, Solicitor, TPP Law’s own disaster Imran Khan & Partners recovery plan was tested Visiting Fellows in Law at LSBU when the offices suffered a major power failure, but Tuesday 5th May Family & Children Robert Hush, Solicitor, systems had been put in 6.30 pm Law Update Howard Kennedy place to ensure data was Maria Healy, Solicitor, saved – thanks to the Fisher Meredith pursuit of Lexcel * Note Revised Date accreditation. 11th June 2009 Criminal Trials: Science, Technology Day Conference & Psychology Copy Deadlines Summer Issue 1st May 2009 Autumn Issue 1st September 2009 Members wishing to submit editorial please contact Robert Oliver before copy deadline. Email: r.oliver2803@btinternet.com Anyone else wishing to advertise or submit editorial for publication in the Clapham Omnibus please contact Phil Lightfoot, before copy deadline. Email: philiplightfoot@benhampublishing.com Tel: 0151 236 4141 8 The Clapham Omnibus The Clapham Omnibus 9
  5. 5. Practice Practice Corporate documentation... a time for review James Sinclair-Taylor is a partner at Russell-Cooke and heads up the Charities Team. He acts for a • Notice periods for general meetings: The required notice period for all general The government has emphasised that broad range of charities and also advises other not for profit organisation including local authorities meetings is now 14 days, but you will not be able to take advantage of this relaxation this list of factors should not lead to a and educational establishments. He is a member of the Charity Law Association and co-author of in the law where the company’s articles require a longer notice period. ‘box-ticking’ exercise at board meetings, Voluntary Sector Legal Handbook. or a need to make more detailed minutes • Holding general meetings on short notice: It is now easier to call a general meeting of board meetings. However, it is What changes can charitable companies expect from the on short notice. To do this will require the written approval of at least 90 per cent of important for the directors of charitable Companies Act 2006? the members. Under the old law the percentage approval required is 100 per cent (in companies to be aware of these statutory James Sinclair-Taylor examines the implications the case of AGMs) or 95 per cent (in the case of EGMs). Again, if your articles duties and that these are not the only specify that 95 per cent/100 per cent approval is required, they will need to be duties that apply to company directors. amended before you can take advantage of this change. You will need to review and update policies including trustee job descriptions • Annual general meetings: Companies are no longer obliged to hold annual general and record keeping policies. Members meetings. However, if the company’s articles require the company to hold them, it are given new, albeit somewhat limited, must continue to do so. If you do give up holding AGMs, you will need to think about statutory rights to sue if they think the implications for trustee election. directors are breaching duties. The Act seeks to simplify company law other directors authorising it. Very unfortunately for charitable companies, the Act • Accounts: It will no longer be obligatory to lay the company’s accounts and reports Three further statutory duties came into Unfortunately it has created a situation requires that the directors may only authorise the conflict if there is a provision in their before the members at a general meeting. This change only applies to accounts and force on 1 October 2008. These are to: which will require most charities to review articles allowing them to do so. In my experience, one virtually never finds such a reports for financial years ending on or after 1 October 2007. There are also new their memorandum and articles and provision in the articles. rules relating to the circulating of accounts to the members. Where the accounts • Avoid conflicts of interest; supporting governance policies to: relate to a financial year ending on or after 1 October 2007, the Act no longer The memorandum of association will frequently contain provisions dealing with a requires you to circulate them to members 21 days before the AGM. Instead, they • Not to accept benefits from third • Take account of new rules on conflicts; situation where a conflict arises out of a direct transaction between the charity and the must be sent to members (and anyone else entitled to receive notice of general parties resulting from being a director trustee. For example, the trustee is a solicitor and the charity wants to use his firm for a meetings) on or before the date on which they are filed with Companies House or doing or not doing anything as a • Reflect, provisions that overrule your transaction. These provisions will not cover the sort of conflict of interest mentioned (which, at present, must be done 10 months after the end of the financial year, but director; memorandum and articles; above. this was reduced to nine months in 2008). Again, however, if your articles require you to circulate accounts 21 days before your AGM, you will still have to comply with the • Where a director is in any way directly • Take advantage of new deregulations; It is clearly vital that organisations update their memorandum and articles to give the old law as well as the new. or indirectly interested in any proposed and directors/trustees such a power. Otherwise this type of conflict would simply be or existing transaction or arrangement, unmanageable. You will also need to review the code of conduct and register of Directors’ duties the company must declare the nature • Clarify directors’ duties. interest arrangements. For the first time the duties of directors are spelt out and these are: and extent of that interest to other parties. There are changes brought in by the Act, Are your articles overruled by the Act? • To act within the company’s powers; which, if charitable companies do not In a number of situations charities will have provisions in their memorandum and Directors can make the declaration: respond to them, could cause them articles which contradict and are overruled by the provisions of the 2006 Act. Two • To exercise independent judgment; substantial difficulties. The best example examples are set out below: • At a meeting of the directors; of this is the new provisions that are • To exercise reasonable care, skill and diligence. This is a subjective test, taking being introduced on conflicts of interest. • Proxy voting for all. Prior to the Act, charitable companies, like all companies limited account of the skills and experience the director actually has as well as an objective • By a notice in writing sent to the other by guarantee, only had proxy voting if the articles provided that they should have. test where the director must achieve a reasonable standard regardless of personal directors; Conflicts of interest Many charities have been uncomfortable about it and have specifically provided that skills or capabilities; The difficulty arises in particular in voting shall only be in person. Since October 2007 all charitable companies limited • By a general notice given to the other situations where the conflict is not a result by guarantee have to allow proxy voting at meetings and it is a punishable offence • In the case of a charitable company, the duty to act in the way in which a director directors declaring an interest in a of a transaction between the not to notify members in the notice of a meeting of their rights to vote by proxy. considers in good faith would be most likely to achieve the company’s purposes specified company or firm or declaring trustee/director and the charity (for Clearly having a situation where your articles say you do not have proxy voting and (such as the charitable objects set out in the memorandum). his connection with a specified third example, where he provides services to the law says otherwise is not sustainable. party. the charity) but where the conflict arises When exercising this duty, directors must note: from other circumstances. A typical • Written resolutions. The Act makes it easier for company members to pass a • The likely long-term consequences of any decision; One way of doing this would be through example of this would be where a trustee resolution without holding a general meeting. Members can now pass most a register of interests which was laid of your charity was also a trustee of resolutions by obtaining the written approval of at least 75 per cent of the members • The interests of the company’s employees; before directors (provided it is worded charity B and, as a result of being a (in the case of a special resolution) or more than 50 per cent of the members (in the appropriately). trustee of your charity, he became aware case of an ordinary resolution). Before the law changed, 100 per cent approval was • The need to foster the company’s business relations with suppliers, customers and of an opportunity which would also be required. This change in the law will apply irrespective of what your articles say, so it others; These duties apply in respect of directors important for charity B. He then faces a is important to amend them to avoid mistakes being made. and, in the case of conflicts, they also conflict as to whether to use the • The impact of the company’s operations on the community and the environment; cover a situation in which the director has knowledge to assist charity B. The Act When you can’t take advantage of the deregulation (or can have) a direct or indirect interest says this situation is to be resolved by the A whole range of other simplifications will not be available to charitable companies if • The desirability of the company maintaining a reputation for high standards of that conflicts. The Act does not define director declaring the conflict and the their articles say otherwise. Examples of these include business conduct; and how an indirect interest is to be evaluated. However, elsewhere in the Act, • The need to act fairly as between members of the company. 10 The Clapham Omnibus The Clapham Omnibus 11
  6. 6. Practice Practice there is a detailed definition of who is going to be treated as connected to a director in respect of the approval process Chasing the Dragon necessary for certain transactions, for example, if the charity was considering selling property to the director. It seems likely in looking at whether a director has an indirect conflict of interest, that notice will be taken of the fairly extensive list of people who the Act now says a director is deemed to be connected with. These include: • A partner with whom the director lives in an enduring family relationship; • Children of such a person as well as stepchildren. It is an unfortunate additional complexity that this list of connected persons is not the same as the list of connected persons in the Charities Act. John Dobie was employed for 33 years within the Legal Aid system. China. What kind of lawyer resided in down town Shanghai on of time as far as business development is concerned. Perhaps Since 1994 he has been working in a commercial environment and the other side of The Bund? It has taken a further eight years to Chinese lawyers will eventually realise the benefit of having a Governance policies now has interests in business software, e-commerce, broadband discover the reality of legal life in China. computerised recording process to ensure accuracy of The implications of these changes in directors’ duties and a communications and the treatment of contaminated land and water. recording or maybe national Government will force the issue on number of other changes within the Act are that not only the Were you aware that until the 1990’s there was no such thing as the ground of transparency of earnings for taxation purposes. memorandum and articles but the governance policies a legally trained lawyer in China? Prior thereto those who Whatever does transpire the journey will be an interesting one developed from that will need to be reviewed and updated. Those of you familiar with China in general adjudicated on legal disputes were retired forces officers who, and, no doubt, many more new Chinese friends will be made For example, organisations should have a job description for and Shanghai in particular will be as despite their lack of legal training, had the authority to arbitrate along the way. trustees who are directors. This should now include explicit captivated as I am by Pudong. What a and decide in favour of one party or another in a legal dispute. references to the statutory duties. Charities will have codes of monument to Chinese development and Are the Chinese lawyers likely to change their ways and adopt conduct and associated registers of interest. These will now style and awareness. Manhattan with space! When China joined the World Trade Organisation it was western practices. Having revisited the country some eight times need to be formal procedures to put the register of interest immediately obvious that existing legal authority could not since my initial foray, I am not prepared to put money on it! before board meetings at least once a year to ensure that My initial visit to Pudong was in 2000 when I first became continue and fully legally trained lawyers were required. As with conflicts and potential conflicts are flagged and handled excited at the prospect of providing business software to the most other issues, China set about the task with gusto and Law appropriately. Chinese legal market. Silly me. Schools sprang up around the country. Within a couple of years lawyers were being produced in their thousands and China now Broader implications Grierson’s had developed software for lawyers in 1998 in has a thriving legal community inhabited by locally trained The duties of company directors have always sat alongside conjunction with a local North East University. Having decided lawyers rather than western imports. charity law duties. The Charities Act 2006 will allow payments not to follow the traditional route of developing “Case to trustees for services provided. If a charity moves to take Management” software attached to an accounts package, we However probably the only semblance of similarity between advantage of this provision, it is going to need to be aware took the view that developing “business control” software Chinese trained and Western trained lawyers is that they both that even though it observes the requirements in the Charities based on the concept of The Law Society “Lexcel” Practice attended law school. Act in doing so, it will also need to observe the somewhat Management Standards and Legal Service Commission different requirements in the Companies Act which, for “Quality Standards” would produce software with an Individual lawyers in China do not congregate into partnerships example, require copies of all directors’ service contracts to be International perspective. or practices as we do in the West. In China there is no “joint and available for inspection at the company’s office or some other several” responsibility where all work is pooled and shared by specified place, and to allow members to attend and take “Case management” software is totally reliant on National partners with the revenue generated being that of the practice copies of such contracts. legislation and is therefore only relevant to the Country of and shared between partners. origin. Software based on a “Standards”, if those “Standards” In conclusion are good enough, could well be relevant around the globe. In China the lawyer owns the work he does. He is in total control We are recommending that charitable companies limited by of that work and under no circumstances will he allow that work guarantee review their memorandum and articles to make sure Having dabbled in the UK market and found the process to be infiltrated by others. Whilst individual lawyers share office that there are no contradictions between those articles and the totally frustrating we decided to spread our net as far away space and administrative staff, that is as far as the “relationship” new rights and duties under the Companies Act and also to from that market as we could. China is about as far away as will go. Each lawyer will contribute an agreed percentage of his ensure that they can take advantage of the various you can get. However China was nearby. Our local Universities annual earnings to the partnership but all other monies liberalisations available. had an abundance of Chinese nationals undergoing generated by the individual is his or hers alone. education. It was not difficult to make contact and begin a friendship with Chinese graduates and it was through that Having demonstrated our software to a variety of lawyers, both friendship that our software was translated into both Mandarin in Shanghai and Beijing, it was clear that either our software had and Cantonese. to be radically altered to meet local demand or the Chinese lawyer had to begin to adopt western practice of a true Once the software had been fully translated and tested to the partnership with the sharing or work and responsibility as well as nth degree we were off! revenue. We discovered that Pudong was the residence of a decent Having developed a partnership ourselves, with a Chinese number of International Law Firms, mainly American with a software company in Shanghai, we have been closely smattering of Chinese partners. Our software was clearly not monitoring developments within the Chinese legal community. for them. The software developed at Grierson’s was for the As yet they have shown little interest in adopting computerised smaller high street lawyer but did such an animal exist in recording as standard. However, eight years is not a great deal 12 The Clapham Omnibus The Clapham Omnibus 13
  7. 7. Practice Practice Electronic Document Storage Contract Locum Career Legal is a specialist legal consultancy, acting predominantly for law firms within London and the Home Counties. thecabinetoffice London, a specialist sorted for scanning by security vetted staff. We scan using high electronic document storage company began speed scanners and a Law Society approved software called trading from premises in Merton in July 2008 ScanFile. and Lynda Reynolds from Merton Chamber of Commerce spoke to the owner/director Once scanned and audited we return the disk to the client and The concept of the contract lawyer has “The disadvantages are minimal really... obviously on short term David Brown about this new venture. when they are satisfied with the quality of the work we then grown rapidly in recent years as firms and assignments you do have to assimilate urgent matters very request an order for secure destruction. organisations have come to rely on quickly, but this is a skill that you soon acquire. You don’t see LR: So what exactly does thecabinetoffice do? experienced lawyers to cover a variety of many of the files through to completion, although on repeat DB: Put simply, we electronically store any and all documents LR: What is secure destruction? situations such as recruitment gaps, assignments you do often find yourself handling files that you’ve that a business needs to keep in long term storage, typically for DB: It’s shredding by one of the security approved recycling maternity leave, holidays, sickness etc. dealt with previously. I was worried at the onset about the a minimum of six years. companies. Once the shredding is carried out we receive a uncertainty of what lay ahead, but I’ve found myself working the certificate of completion and a list of the files destroyed, we then We have a core of experienced lawyers, including many ex- majority of weeks that I was available and have established an LR: What are the benefits of this to your customers? certify the client. The whole process is very well controlled, partners, on our register who locum on a professional basis. excellent relationship with the firms that I have been introduced DB: Primarily a business can expect to enjoy large savings in particularly as we are dealing with highly sensitive and Until the recent property slump it has been perfectly feasible to so far.” space and storage costs. With the high cost of office space in confidential documents. for those lawyers specialising in areas of law such as London, storing boxes of paper on-site becomes very expensive Residential Conveyancing, Commercial Property, Family and to store off site is highly inconvenient; it’s also not LR: You mentioned earlier that it is easier to retrieve a file or a Law, Civil Litigation and Private Client (ie. Probate) to work conducive to a good working environment and there are also a single document, why is that? for at least 9 – 10 months per year. Even in the current health and safety issues. Secondly it’s a lot easier and quicker DB: When we scan a file we index each one to the client climate most of our contract lawyers would be able to to retrieve a file or single document electronically. specification, if it’s a solicitor they may want to search by client secure a minimum of 6 months’ work per year. name or matter number or fee earner, in fact there are ten user LR: Tell me how it works. defined search fields. To then find the exact document you Contract work certainly suits someone who is seeking a fresh DB: We offer a complete service. First we collect files from the require takes a matter of minutes electronically, whereas if it is in challenge and would enjoy the freedom and variety of work that client premises and take them to our bureau; there they are a box somewhere off-site it can literally take days and there is it affords. For an informed opinion on the pros and cons of no cost. locuming I asked one of our most popular Conveyancing Solicitors, for his views after completing his first 12 months as a LR: Can you give me a guide as to how much space is actually locum. Based in North London, he was an ex-partner with two saved? South London practices for nearly 20 years, concentrating on DB: We can scan 100,000 B&W images on to just one DVD, Residential and Commercial Conveyancing in recent years, that’s typically 500 files or 40 file boxes, imagine how much having been a General Practitioner earlier in his career. After space that saves, as well as the rental. taking a year’s sabbatical he has locumed regularly since then, assisting half a dozen firms on a repeat basis, covering short LR: You are currently scanning to DVD, how are these then term assignments deputising for partners and other senior fee stored? earners. DB: We deliver the images on DVD which includes the software to search, view and print images. The majority of our customers He said: “Basically I felt that I needed a change after so many will then transfer the data to their own server, which means of years in partnership, and was even contemplating doing course that the information can be attached to a client file. something unconnected with the law. However I realised after spending many months renovating my house that I actually LR: Who are your customers? missed the mental stimulation of being in practice, and having DB: We work mainly with solicitors, but also with private banks, had my first proper break from working in the legal profession property companies and housing associations. Law firms are an for many years I returned to the fray feeling refreshed and very obvious target market for us as they produce files daily so they enthusiastic about the new challenges ahead. need a service like ours as we are set up to meet the stringent legal requirements with regard to confidentiality and we “As far as I’m concerned the benefits of locuming far outweigh understand the demand to ensure that the files are indexed the disadvantages. You are actually welcomed and valued by clearly and correctly. client firms, and frequently get asked back for repeat assignments; you have plenty of client contact; another huge LR: Finally, is there anything else we should know? plus is that you can concentrate on just doing the work without, DB: All of the software that we deliver to our customers is free of as a partner, having to worry about management, staff and Law charge and importantly we are happy to work with prospective Society issues; you don’t build up piles of cases which you can’t customers to ensure that by electronically storing they can make face dealing with... every file is the same, so you don’t have any genuine cost savings over physical storage. sleepless nights about particular cases. Locuming gives you an excellent insight into how different law firms operate, and I have Contact David Brown at thecabinetoffice been fortunate enough to handle some high quality Commercial t: 0845 146 0004 Property work at two very well run practices that I have been m: 07800 831076 assigned to. e: david.brown@thecabinetoffice.co.uk 14 The Clapham Omnibus The Clapham Omnibus 15