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1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
1161 Clapham Omnibus Feb 09 Interactive 02
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1161 Clapham Omnibus Feb 09 Interactive 02

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Official Journal of Soth London Law Sooiety

Official Journal of Soth London Law Sooiety

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  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. 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. 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. 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. 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. 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. 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
  8. Practice Education Success fees: Risk? What risk? The University of Huddersfield School of Law Legal Costs Management. The School of Law is a Master’s degree, students benefit In an era of economic uncertainty when progressive one that is enormously as all fees are deferred until significant re-structuring is taking place, committed to offering they are in employment, there are no not least in the legal professions, we are courses that are not only expensive “upfront” fees as for the LPC. also able to provide appropriately innovative in terms of qualified applicants a range of The recent case of C v W [(2008) EWCA Civ The Court of Appeal looked closely at the way in which the structure but also in terms of Our emphasis is giving students a sound postgraduate courses to enhance their 1459] is of interest because it gives some Claimant’s solicitors had calculated the success fee. The main delivery. The School was educational experience supported by an knowledge. For those who are insight into the Courts attitude towards categories of risk identified by the solicitors were: the chances established in 1978 and was “open door” policy for academic and professionally qualified or who have success fees when liability has been of success, the existence of additional or complicating factors, one of the first providers to pastoral care throughout the student’s simply completed their LPC or BVC admitted pre CFA. the opportunity to reduce the risk and the costs of funding the be validated to run the Legal period with us. courses and are awaiting a training claim. Practice Course (LPC) from contract or pupillage we offer an LLM by The Claimant was a passenger in an RTA. Liability was admitted 1993. Our commitment to ongoing course open and distance learning. This requires by the driver by the time the CFA was entered into. The CFA, in In considering the specific factors taken into account by the development to meet the needs of the presentation of a 25,000 word Law Society terms, provided that no costs would be payable in solicitors the Court found that: the chances of not achieving a In 2008 commenced a radical new four tomorrow’s professionals is dissertation, coupled with a presentation. the event that a successful Part 36 offer had been rejected on “win” as defined by the CFA were no more than 5%, to increase year degree course combining the demonstrated in new course areas such The research is usually carried out over the solicitor’s advice. the risk by reason of the size of the claim was wrong as, though traditional law degree with the final stage as a Foundation Degree in Para-Legal an academic year, though this period can high value claims could be more complex that did not, by itself, for qualifying as a solicitor, normally Studies which will be available from 2009. be extended. In addition we offer taught The CFA claimed a single success fee of 98% inclusive of 15% increase the risk and that the addition of a further 10% to the completed through the LPC. At the end of We also offer both full and part-time LLM degrees in Commercial and in respect of the funding element. On the original assessment success fee for “unidentified Defendants and insurance issues” the four years students achieve their LLB courses leading to the Common International Law on a full-time or part- the District Judge had allowed 70% which was reduced by the was not justified. (Hons) plus a Master of Law and Professional Examination. Again this time basis with either a September or Circuit Judge to 50%. On appeal the Defendant contended that Practice. We were the second University course is unique in that it is offered on a January start. 20% was appropriate. The Court further noted that the real difficulty in this case lay in in the country to be authorised to offer flexible and distance learning basis over assessing the risk that the solicitors might lose the right to this course by the Solicitors Regulation the internet. This means that any student, P H Richards LLB, PhD, PGCE, FHEA recover part of their fees in the event of the Claimant’s failure to Authority, the first time the SRA has anywhere in the world can complete this Head, School of Law beat a Part 36 offer on their advice. However, on the basis that approved such radical reform since 1992. course and then move on to studying the experienced solicitors were unlikely to differ widely in their Apart from the added value of obtaining a LPC or the Bar Vocational Course. evaluation of a claim and that, depending on the stage at which an offer was made, a significant part of the solicitors’ fees were not at risk, the Court found that the 20% addition to the success fee attributed to this element was excessive. In allowing an overall success fee of 20% no more than 17% was attributed to this element. In the light of this judgment, as long as you ensure that a detailed risk assessment is prepared that specifies the various heads of risk taken into account it should now possible to defeat the standard paying party argument that liability was admitted pre CFA or that liability was never in doubt and so the success fee recoverable should be around the 5% level. 16 The Clapham Omnibus The Clapham Omnibus 17
  9. Education Education School Admissions Angela Jackman is a solicitor at Fisher Meredith LLP Email: angela.jackman@fishermeredith.co.uk . This area of law is governed The underlying purpose of the co-ordinated arrangements is to ensure that the home local pupils to one qualified teacher. Further details are set out in The Education (infant Class competitive process; the appeal panel is by a labyrinth of primary and authority makes one offer of a place to the parent, in line with their ranked preference. If no Sizes) (England) Regulations 1998. This impacts on the basis upon which appeals can be required to consider each parent’s secondary legislation, school named on the CAF offers a place, the local authority should take steps to identify an pursued in respect of infant classes, and parents’ prospects of success. compassionate and compelling nature and, government guidance and available place at another school. in many circumstances, make difficult case law. The website of the Due to the statutory class size limit, the nature of these appeals are restricted and it is decisions. Department for Children, Admissions procedure can be confusing and stressful for parents who are experiencing the essential that parents should bear this in mind so they can manage their expectations Schools and Families is a process for the first time. A common misapprehension of parents is a belief that there is an accordingly. For this reason it is essential that any useful source for materials, entitlement for their child to attend the parent’s school of first choice. What the legislation documentary evidence or professional including 2 substantial Codes actually provides, however, is an entitlement to state a preference, which is wholly different The appeal panel has to establish whether the school has admitted the maximum advice to support compelling, social or of Practice and references to to entitlement to a place at a particular school. permitted number of pupils to the year group. The primary role of the AA in these appeals medical submissions should be submitted the relevant legislation is to satisfy the appeal panel that there would be “prejudice” to the provision of education if by the parent either when the appeal is (www.dfes.gov.uk/sacode). Section 86 of the SSFA requires local authorities to make arrangements for enabling any more children were admitted (see reference to section 86 SSFA above). lodged or at the later stage when further parents to express a preference, and give reasons for that preference. Furthermore, AA’s evidence can be provided in advance of The predominant primary legislation are required to comply with expressed parental preference unless: A school may have admitted to its published admission number, however, it may have to the hearing. Evidence of this nature is governing admissions to maintained i. Compliance would prejudice provision of efficient education justify to the panel that this would also breach the infant class size limit. Amongst its crucial for assisting the panel in schools can be found in the Education Act or consideration, the panel has to consider whether admission of another child could cause distinguishing appeals and making its 1996, School Standards and Framework ii. prejudice the efficient use of resources. infant class size prejudice in the future, for example if a school re- organises forms in years decisions. Act 1998 SSFA), Education Act 2002 and 1 and 2. the Education and Inspections Act 2006. Inevitably, popular schools receive more applications than places which are available. AA’s Legal representation admit to their published admission number. If over-subscribed, they allocate places If the panel is satisfied that the maximum number of pupils permissible have been admitted Many parents feel it is beneficial to obtain This issue is highly topical as applications according to their published over-subscription criteria. These vary depending on the type of and any additional admissions would result in more than 30 pupils being taught by one legal advice and assistance with the to most admission authorities (AA’s) for school and whether or not it is a community school, faith school or selective school. qualified teacher without any “qualifying measures” being implemented (such as preparation of their appeals and September 2009 and January 2010 Statutory priority is given to looked after children. Other criteria include sibling link, social or appointment of an additional qualified teacher), there are limited additional circumstances submissions to appeals panels. Legal help Reception intake are imminent. Decisions medical reasons and distance. Faith school generally require evidence of religious worship. which can be taken into account by the panel, and thus restricted grounds upon which an is available to parents, subject to financial upon the said applications will be appeal can be allowed. eligibility. published a few months later, in some Academies receive funding from the Secretary of State on condition that their admissions cases, April. procedures must comply with the legislative framework for maintained schools. City The panel is only permitted to allow any appeals if a failure to admit any pupil would be Generally, it is only advisable to have legal Technology Colleges operate under their own procedures. perverse or irrational. Detailed guidance on this is set out in the School Admission Appeals representation at the actual appeal hearing Applications for September 2009 Code of Practice. in exceptional circumstances such as secondary applications were submitted in AA’s are under a statutory duty to have regard to the Secretary of State’s School Admission where specific legal arguments are being October 2008. Decisions should be posted Code of Practice (February 2007) and the School Admission Appeals Code of Practice There is no scope for the appeal panel to take into account compassionate or personal presented on the parent’s behalf with a on national offer day, 2nd March 2009, or (January 2008). circumstances if, on the face of the original decision, the admission authority complied with view to potential judicial review available on line from 3 March for those its admissions arrangements and has admitted the maximum statutory number proceedings. Representation is not covered who submitted on-line applications. Appeal procedure permissible. under the Legal Help Scheme. Section 94 of the SSFA gives parents a right of appeal to an independent appeal panel Primary and secondary admissions are against a decision refusing admission to a maintained school. This entitles parents to Secondary appeals Further remedies governed by co-ordinated arrangements. appeal in respect of all schools detailed on the CAF which have not offered a place. In contrast, panels for secondary transfer appeals have a much broader remit. Complaints of maladministration can be Parents are required to complete a made to the Local Government Common Application Form (CAF) provided Parents must ensure that if they wish to appeal any admission decision, they do so by the Firstly, the panel has to satisfy itself as to whether the admission arrangements were Ombudsman in respect of the local by their home local authority in which they deadline date stated by the AA in order to avoid delay in the hearing of their appeal. It is correctly applied when places were allocated to the school. authority or its appeal panel. state, in ranked order, a number of school advisable to submit full grounds of appeal with supporting documentary evidence such as to which they wish to apply. 6 preferences medical or other professional reports or relevant school records. The appeal should be The panel then has the task of establishing whether or not the AA has admitted to the Judicial review can be considered if the can be stated for secondary applications, acknowledged by the clerk to the appeal panel and the parent should be informed that published admission number. If the AA satisfies the panel that it has admitted to that decision of the AA is arguably unlawful and in the region of 4 for primary they have a further opportunity to submit additional evidence before the hearing, and the number, it still has the task of satisfying the panel that there would be prejudice to pupils’ within the context of public law principles. applications, depending on the admission date by which they should do so. educational provision if more children were admitted. The appeal panel should not simply Time is of the essence when considering arrangements of individual local authorities. conclude that there will be prejudice purely because the published admission number has admissions judicial review proceedings as The Code of Practice specifies that primary appeals must be heard within 30 school days been reached. the court is generally reluctant to intervene The local authority is responsible for of the closing date for lodging the appeal, and secondary appeals must be heard by 6 in admission arrangements once AA’s have submitting the application for each July. The clerk to the appeal panel is required to provide at least 10 days notice of the When preparing for an appeal, the parent should consider whether there are any taken steps to plan for specific intakes. individual school to the relevant (AA) which hearing date and to circulate a statement from the AA at least 7 days before the hearing. If challenges to the AA’s prejudice arguments, such as arguing that the published admission Applications have been treated as out of will consider the application and determine substantial information is provided by the parent less than 3 working days before the number was set some time in the past and does not reflect any subsequent increase in the time even when issued within 3 months of whether or not a place is offered to the hearing, the panel may consider adjourning the hearing. actual physical capacity of the school. the decision in question. parent. The decision is communicated to the local authority. The identity of the AA When hearing appeals, panels are required to satisfy themselves that the AA correctly Other arguments which can be considered include establishing whether in previous years Public funding is only available to parents depends on the type of school. AA’s for applied it admission arrangements and over- subscription criteria in all cases. If the criteria the total admitted number exceeded the admission number. If so, there is an arguable and not to children, following the decision community schools are the local authority were incorrectly applied, this is a primary ground of appeal, Accordingly, if the appeal panel presumption that the school can accommodate an increased number of pupils. in JC v Richmond [2001] ELR 21 where the whereas AA’s for foundation schools and concludes that a child would have been allocated a place had the criteria been applied court made strong comments that public voluntary aided schools are in fact the correctly, it should direct admission of that child. In contrast to infant appeals, if the panel is satisfied that prejudice is established by the AA, funding in the name of the child is governing bodies of those schools. AA’s for it then goes onto a final stage of balancing the AA’s arguments on prejudice against incompatible with the wording of the Academies are the Board of Governors. Infant appeals arguments presented by the parent as to why admission should still be allowed (R v South legislation which specifically vests appeal Appeals are organised by the AA of the Distinct regulations apply to infant appeals (Reception, Year 1 and Year 2), in contrast to Glamorgan Appeals Committee ex parte Evans (1984) 10 May Lexis CO/197/84). Where rights in the parent rather than the child. school in question. secondary appeals. Section1 (3) if the SSFA imposes a limit to infant class sizes of 30 schools are particularly oversubscribed, parents do need to be aware that this is a highly 18 The Clapham Omnibus The Clapham Omnibus 19
  10. Criminal Criminal Anti-money laundering compliance – keeping it proportionate Emma Oettinger is the Law Society’s anti-money laundering policy officer. Knowing your client Chapter 11 of the practice note contains For the majority of firms, customer due diligence tends to command the greatest a number of warning signs across In difficult economic times, it is tempting to cut back on attention. As the front line of defence, many firms will want to have a robust system to different areas of practice. Some key compliance checks to save costs and to turn a blind eye to ensure that all necessary identity checks have been undertaken before work warning signs include: anomalies in transactions in order to keep work. It is just this commences on a retainer. However, to get the best value for your firm out of this client vulnerability which criminals will seek to exploit to ensure due diligence, it is important to take time to really know your client, rather than just tick • Use of cash they can keep laundering the proceeds of their crime. A the box of obtaining a passport. Look at the identity information provided and ask, is it transaction that may look like a godsend today, will not seem consistent with the: • Secretive clients such a good idea if it leads to criminal investigation in two months or two years time. • presentation of the client? • Funds from unknown or unusual sources • nature of the transaction? • Clients approaching you to undertake • other information within the transaction? work in areas your firm does not usually practice or of a size or value If you are satisfied as to the identity of the client, but think that the transaction itself which is significantly greater than usual poses a higher risk, it is not a case of getting more evidence of identity. Rather you can for your firm undertake standard identification of the client and put more resources into the ongoing monitoring of the transaction. • New clients approaching you who live some distance from your firm and Beneficial owners would have been able to obtain Vigilance never ceases to be The Regulations apply to solicitors undertaking certain types of ‘regulated sector’ work When conducting customer due diligence on clients, you must now identify any comparable services closer to where important, whatever the economic such as: beneficial owners. This is a typical example of an obligation where it is possible to they live. climate. Protecting your firm from apply a risk-based approach and so enhance the proportionality of the compliance money launders is good business • property transactions burden. However, it is important to remember that sense, not just another compliance warning signs are just that – warning box to be ticked. The challenge in • assisting in setting up trusts or company structures and The practice note advises that in normal situations, where there are no high risk factors signs - not definitive evidence of these times is to ensure that the present, you will not need to verify a beneficial owner to the same degree as a primary criminality. Fee earners and money practical activity of compliance works • managing client money or assets. client. This means that in some cases a certificate from the client confirming the identity laundering reporting officers should ask to the firm’s greatest advantage, of the beneficial owner or shareholder details from an online registry may be sufficient. questions of the clients where warning rather than being merely compliance Before setting up your procedures and controls, the practice note encourages you to They key is to understand the ownership and control structure of the client. The level of signs are identified to better understand for compliance sake. first asses your client demographic and the services they provide. A little time and understanding required is in direct proportion to the complexity of the structure and the the transaction and carefully consider the effort spent in this initial risk assessment may reduce overall compliance costs in the risks associated with the transaction. legitimacy of the responses they are The risk-based approach long run, either as a result of reducing over-compliance or avoiding a compliance given. The Law Society’s anti-money failure due to unappreciated risks. Some of the questions to consider when assessing the risk of beneficial owners laundering practice note provides include: Other assistance from the Law Society advice on how to adapt the high level Some points to consider in conducting the firm risk assessment include: The Law Society is committed to obligations set out in the Money • Why is the client acting on behalf of someone else? supporting our members in complying Laundering Regulations 2007 (the • Is there a high turnover of clients? with anti-money laundering obligations. In Regulations), into practical policies • Where is the business structure based? addition to the practice note, we provide and procedures. The practice note • Do you meet clients face to face? a telephone helpline through the Practice focuses specifically on solicitors, and • Why is a particular business structure being used in a transaction? Advice Service, regular e-alerts, free how their firms actually operate. The • Does the practice undertake complex financial or property transactions? regional networking events for money value in this approach is an emphasis Training staff on the warning signs laundering reporting officers and regular on proportionality, allowing you to • Does the practice receive cash payments? Fee earners who deal with clients on a regular basis and undertake many similar training programmes around England adapt the systems and controls in the retainers are your best defence in protecting your firm from potential launders, as long and Wales. For information about all of Regulations in a manner which • Are cross-border transactions a standard part of the firm’s work? as they know the warning signs for which they should be looking. Expensive external or the anti-money laundering services effectively reflects your practice size online training programmes are not always the most effective way to ensure fee earners provided by the Law Society, visit our and risk-profile. Once you have established your firm’s risk profile, you should consider the risk profile keep money laundering warning signs in the front of their mind during their day to day dedicated webpage: of each individual client. The Law Society’s view is that the overall information gathered work. www.antimoneylaundering.lawsociety. by the firm while acting for the client can be drawn upon in making that risk org.uk assessment initially and when it is reviewed as the retainer progresses. The more you Sharing real life situations considered within other parts of the firm at team meeting know your client and understands their instructions, the better placed you will be to helps to bring home to fee earners the types of risks that your actual firm is facing and assess risks and spot suspicious activities. re-enforces the firm’s procedures for responding to concerns or suspicions. Circulating newsletters, e-alerts or journals with new methodologies is a useful way to keep staff up to date more regularly than formal training may allow. Some firms have even instituted anti-money laundering pub quizzes, helping to liven up what can be quite a dull topic for many, and improving the retention of information because it was delivered in an entertaining and competitive context. 20 The Clapham Omnibus The Clapham Omnibus 21
  11. Criminal Criminal Countering Fraud in the Recession Richard Kusnierz The founder and owner of Investigative Data Mining Limited (“IDM”), a specialist consultancy dealing with all aspects of data mining and automated fraud detection. Since 1995 he has pioneered the use of internal and external databases to detect fraud and in developing static and dynamic fraud and risk profiling strategies. He is an internationally recognised expert in developing innovative data mining solutions and is regularly called upon to lecture on automated fraud detection both in the UK and world-wide. Prior to forming IDM, he was a Director of one of Europe’s leading fraud investigation consultancies. He has over thirteen years’ experience working in the computer industry and a further eighteen in corporate security and fraud investigations. At a recent fraud conference I believe that it is fair to say that “the man on the Clapham Omnibus” may view the “Aibel Group Limited pleads guilty to arranged by the UK Fraud legal profession as an unavoidable necessity, only to be used as a last resort when all foreign bribery and agrees to pay Advisory Panel, Rosalind else has failed. The current recession requires that we all think “outside the box” and $4.2 million in criminal fines” White the Chairman and ex legal advisors should not be shy to suggest innovative, practical and proactive ways of director of the Serious Fraud reducing risks and improving a Client’s prospects of survival, and therefore their own A quick data mining analysis of open Office (1997 to 2003) warned continued existence. I have been successfully advising both public and private data sources identified 36 additional delegates that in a recession organisations for over 18 years in the use of data mining and interrogation techniques companies registered at the same the number of cases of fraud to prevent, detect and investigate all manner of corporate fraud, including criminal and address as Aibel; and a series of related was likely to dramatically civil actions. The one central point of resistance to implementing controls to detect subsidiaries, see figure 1. Are any of rise. This was partly due to internal fraud, collusion and corruption is always “the Data Protection Act 1998” and an these companies related by common the perception that as obvious lack of understanding. directorships? Are your Clients dealing company profits dwindled with them? Do any of these directors hold there was a greater and The European Directive 95/46/EC on the processing of personal data was enacted in other positions of responsibility with your more aggressive focus on the UK in 1998 to protect individual rights and to provide a framework within which the Clients directly or with their suppliers? costs and expense controls data subjects’ personal information may be used. Therefore provided that; Unravelling the spider’s web of and hence an increase in the relationships and how it might affect one detection of anomalies, i.e. • the data owner ensures that all the purposes for which personal data is used are of your Clients is a proactive example of fraud. There was also the registered with the Information Commissioner’s Office; how data mining can counter fraud and obvious concern that any • the data owner informs the data subjects of these purposes and allows them to Figure 1. Link Analysis of Aibel Group Ltd corruption and demonstrate an effective employees/managers whose update or delete incorrect information; and Additional 36 companies registered at 90 Long Acre, London, WC2E 9RA KYC culture. salaries were performance • the use of a data subjects’ personal information is proportionate to the purpose related, would be tempted to (using employees’ information to uncover fraud risk and exposure), as documented Absolute Multimedia UK Limited Marks & Clerk (France) LLP The current recession demands that “massage the figures” or “do by a DPA Adverse Impact Assessment; Automotive Technik (Holdings) Limited Marks & Clerk Properties Limited businesses re-assess their operating whatever is necessary to Borghese (UK) Limited MBI & Partners U.K. Limited practices, throwing out traditional and meet the targets”. Finally, then the data owner may use employees’ personal data for “the prevention of crime Camus International Limited MBI Network Television Limited outdated perceptions, such as the personal tragedies would and the prosecution of offenders” (a standard purpose). To counter any civil Cheviot Asset Management Limited Medtrust Innovations Limited reactive nature of the legal profession, also contribute to the libertarians quoting the Human Rights Act 1998, it is worth, for the avoidance of doubt, Cheviot Capital (Nominees) Limited Millsec Limited and actively embrace a forward thinking increase in fraud as confirming what type of data would be used and how. One of the most common Cheviot Partners LLP Old Oak Holdings Limited and innovative approach to mutual historically this activity has internal frauds is the payment of fraudulent supplier invoices to an employee’s personal Dow Jones International Limited Ski Leasing UK No.1 Limited business survival. The legal profession been seen as a victimless bank account, therefore a data matching exercise between the organisation’s HR Eurohypo Asset Management Limited Ski Leasing UK No.2 Limited should be promoting the use of personal crime. As I am sure that the system and the Supplier file in the Finance systems is a quick and painless use of Eurohypo Investment Banking Limited Stewart & Stevenson TVS UK LTD data and data mining to prevent and reader will appreciate, until personal data. Such data matching also extends to data elements such as the home Eurohypo UK Pension Trustee Company LTD The Health Foundation detect fraud, explaining how this may be the Fraud Act 2006 came into address and telephone number. Sensitive personal data, such as medical histories, European Stockbrokers Limited Toscafund Asset management LLP done within existing legal constraints, effect there was no legal trade union and religious affiliation or previous criminal histories are not part of the data Fulbright and Jaworski International LLP Toscafund Limited instead of waiting to pick up the pieces. definition of fraud and hence analyst’s armoury. There is no infringement of an employee’s rights, merely an Insurancewide.com Services Limited Trelie Limited it was difficult to prosecute. employer’s right to protect his business, and all the stakeholders’, including JJ Hotels & Resorts Limited Vetco Aibel Holding Limited There is no longer any time for employees’, interests. Marks & Clerk Vetco Aibel Limited complacency, action is required! Marks & Clerk (Asia) LLP Vetco International Limited We are now all part of the global village and events on the other side of the world can, Marks & Clerk (Canada) LLP Vetco Limited and do, have a direct and catastrophic effect in the UK. The oft repeated, but seldom adhered to, mantra of “Know Your Customer (KYC)” is even more important when the US Foreign and Corrupt Practices Act is brought to bear on a UK company such as the Aibel Group Limited. On Friday 21st November 2008, the US Department of Justice issued the following press release: 22 The Clapham Omnibus The Clapham Omnibus 23
  12. Criminal Criminal Recent Developments in Confiscation David Winch is a forensic accountant specialising in crime and proceeds of crime and a director of NIFA member Accounting Evidence Ltd. www.AccountingEvidence.com Confiscation proceedings are now In the case of R v Sivaraman [2008] EWCA Crim 1736 the Oppressive confiscation proceedings commonplace where a defendant has been defendant was an employee of a company which operated a In the remarkable case of Shabir v R [2008] EWCA Crim 1809 convicted of one or more offences from service station on the A508 near Northampton. The company the defendant was a dispensing pharmacist who had falsely which he has obtained – or is deemed to illegally sold agricultural ‘red’ diesel as road fuel and thereby inflated claims which he submitted to the NHS for payment. Mr have obtained – a benefit. But one theme evaded the excise duty chargeable on diesel engine road Shabir had inflated six particular monthly claims by including which has recurred in confiscation cases vehicle fuel (DERV). The defendant had supervised the delivery false items totalling £464 overall. However each of those claims over the past 12 months is, as the House of to the service station of the red diesel upon which duty had had also included a multitude of legitimate items, far in excess Lords put it, “in very many cases the factual been evaded, for which task he had been paid £15,000, and of the false ones. The total value of the six claims was findings made will be decisive”. was convicted of conspiracy in the evasion. However, the Court £179,731. Mr Shabir was accordingly convicted of obtaining by of Appeal noted that the excise duty evaded had not been a deception six money transfers totalling £179,731. The flood of confiscation appeals have thrown up a variety of liability of the defendant himself (but that of the company of points of interest relating to the way in which ‘the facts’ can which he was merely an employee) and held that this Since he had been convicted of six offences and the ‘benefit’ of impact upon the computation of ‘benefit’ and the amount in defendant’s benefit from the conspiracy was limited to the £179,731 exceeded the £5,000 threshold of section 75(4) which a confiscation order should be made. Several decisions £15,000 he had himself received. Proceeds of Crime Act 2002, the Crown proceeded to in the Court of Appeal and the House of Lords over the past confiscation on the basis that Mr Shabir had a ‘criminal lifestyle’. year have modified our understanding of the law of confiscation. On the other hand, the owner of the company which had evaded the duty had properly been held to have obtained the The Court of Appeal held that confiscation in this case was May, Jennings and Green benefit of the entire amount of duty evaded (without any oppressive given that in any ordinary language the true extent of Of key importance were the House of Lords’ decisions, handed deduction for the £15,000 paid to Mr Sivaraman). the offending was only £464. The confiscation order was down together, in the cases of R v May [2008] UKHL 28, CPS v quashed and instead a compensation order was made in the Jennings [2008] UKHL 29 and R v Green [2008] UKHL 30. Prior Benefit obtained by a money launderer sum of £464. to these definitive decisions there had been much controversy Very recently the Court of Appeal has considered the benefit about the ‘benefit’ derived by joint defendants or conspirators in obtained by a money launderer. It had been believed that a Using a forensic accountant criminal conduct. How should Courts approach the person convicted of a money laundering offence would The undoubtedly draconian impact which confiscation can have apportionment between the various defendants of the total inevitably be deemed to have obtained a ‘benefit’ in the sum on a convicted defendant and the way in which, in ‘criminal benefit derived from the crime? laundered by him. In Allpress & Others v R [2009] EWCA Crim 8 lifestyle’ cases, the scope of the prosecution investigation the Court of Appeal reconsidered the position and concluded extends well beyond the offending which gave rise to the The short answer is that where benefit is obtained jointly it that a mere courier or custodian of proceeds of crime does not conviction, presents a challenge to the defendant’s legal team. should not be apportioned at all. Every co-defendant obtains ‘obtain’ those proceeds for the purposes of confiscation and so Typically the defendant himself will regard the situation which he the whole of the benefit which is jointly obtained. does not ‘benefit’ by the amount of those proceeds, even faces as manifestly unfair and will object to being described as though he commits a money laundering offence. having obtained a large ‘benefit’ or labelled as having a ‘criminal However this naturally leads to the next question – how does lifestyle’. one determine the benefit which has been obtained jointly? In contrast, a money launderer who converts or transfers Here the House of Lords, particularly in its judgment in Jennings proceeds of crime will be regarded as having ‘obtained’ those However the case law underlines the importance of establishing took a rather different view from the Court of Appeal. The Lords proceeds (of which he has temporarily had legal ownership and the relevant facts and points to areas in which the prosecution held that, in relation to each defendant individually, “obtained” practical control) and will accordingly have a ‘benefit’ of those may be successfully challenged resulting in a reduction in the meant “obtained by him” and that “a person’s acts may proceeds in confiscation proceedings. ‘benefit’ figure. contribute significantly to property (as defined in the Act) being obtained without his obtaining it”. Seized drugs A forensic accountant with appropriate skills and experience, The Court of Appeal has taken the opportunity to set out in very whose fees may be covered by a prior authority from the LSC, Benefit in a conspiracy clear terms that seized drugs have, of themselves, no value can be invaluable to the defence in these cases. Following on from those decisions, the Court of Appeal has “whether for the purpose of assessing a defendant’s benefit recently made it plain that the benefit obtained by an individual from obtaining drugs or for the purpose of assessing the member of a conspiracy is an issue of fact and that whilst amount available to him at the time of the confiscation order” in conspirators may, in certain circumstances, obtain benefit jointly R v Islam [2008] EWCA Crim 1740. However it is open to the there may also be circumstances in which some conspirators court to include the expenditure incurred by the defendant in benefit more than others. obtaining those drugs as an element in computing his ‘benefit’ under the criminal lifestyle assumptions. 24 The Clapham Omnibus The Clapham Omnibus 25
  13. Probate Probate Problematic Probate The decision in Sherrington was confirmed in Channon v Perkins [2005] EWCA civ 1808: The Witnesses gave robust evidence that they did not sign Professor Channon’s will. Humblestone v Martin Tolhurst Partnership [2004] EWHC 151(Ch): Indeed they were adamant they had not, one saying that she would have remembered This will was signed by two witnesses in How to avoid a will dispute (and a potential negligence claim) being asked as she disliked the Testator, and the other saying she would have anticipation of the Testator signing. He remembered such a request as significant because he was “a figure of some never did. The will was returned to the firm distinction” at the college where they worked. However, neither witness could explain by the principal beneficiary, checked by Alison Regan is a senior solicitor in the Commercial Litigation department at Russell-Cooke. She specialises in contentious trusts and probate and is an their signatures on the will and there was no dispute that the signatures were genuine. It secretary who pronounced it all in order associate member of ACTAPS (the Association of Contentious Trusts and Probate Solicitors). was held that on the face of it the will was valid, as their evidence did not amount to the and placed it in the firm’s storage vaults. “strongest evidence” necessary to rebut the presumption. When the Testator died the obvious error was discovered, the will was held invalid This is then some comfort for the draftsman. However the evidence is sometimes the and the estate passed on intestacy. The The purpose of this series of There are four main areas of validity disputes: “strongest evidence” necessary with the result that the presumption is occasionally disappointed beneficiary sued the firm. It articles is to give a litigator’s rebutted. This inevitably leads to allegations of professional negligence on the part of was held that the firm was under a duty to point of view on the validity of • Lack of Proper Formalities the will draftsman: check execution of a will even if it was not wills and other testamentary • Lack of Testamentary Capacity specifically asked to do so. documents. The intention is • Lack of Knowledge and Approval Professional Negligence cases - execution not to be prescriptive on how • Undue Influence Gray & Others v Richards Butler [1995]: Professional negligence: Intention to to draft the perfect will, but There were two witnesses to the will, one was a neighbour of the Testator, the other an be final will rather to give an insight into This article will deal with Formalities. employee at Coutts. The will was held to be invalid on the basis that execution Corbett v Newey [1996]: what issues are being raised formalities were not complied due to the fact that the two witnesses were never present The Testator received negligent advice and litigated and what Lack of Proper Formalities at the same time and couldn’t have witnessed the Testator’s signature together. The that she could execute a will but leave it decisions the Courts are The obvious place to start is Section 9 of the Wills Act 1837 as amended by the disappointed beneficiaries issued a claim in negligence against Richards Butler on the undated on the basis that it would only be making. What a will draftsman Administration of Justice Act 1982: basis that the will draftsman had not given the Testator specific enough instructions on effective after certain lifetime gifts were can do to prevent a problem attestation. made. It is contrary to the Wills Act 1837 clearly depends on the [9 Signing and attestation of wills] for a will to be subject to “external circumstances. It is hoped that [No will shall be valid unless— It was held that the will draftsman did owe a duty of care to explain attestation conditions”, ie conditions which have to this short overview will at least (a) it is in writing, and signed by the testator, or by some other person in his presence appropriately. In this case the nature of the Testator was considered. She was described be proved by extrinsic evidence. raise awareness of the issues. and by his direction; and as a gregarious outgoing lady who who had no interest whatsoever in legal matters and, Consequently the will was held to be (b) it appears that the testator intended by his signature to give effect to the will; and it was claimed, would have paid no attention to legal formalities or written instructions. invalid as there was no intention by the Profession Negligence – White v Jones (c) the signature is made or acknowledged by the testator in the presence of two or Testator for it to have immediate effect. Prior to the decision in White v Jones more witnesses present at the same time; and It was held that the Testator was intelligent enough to understand the written instructions The draftsman had to compensate the [1995] 1 All ER 691 a disappointed (d) each witness either— and that the instructions themselves were adequate in the circumstances. disappointed beneficiaries. Costs were beneficiary had no recourse against a will (i) attests and signs the will; or paid from the estate. draftsman on the basis that that firstly the (ii) acknowledges his signature, (However a point to note is that the executor of the failed will was a partner at Richards beneficiary was not a party to the contract in the presence of the testator (but not necessarily in the presence of any other witness), Butler and had authorised payment of administration costs before the will was declared Corbett v Bond Pearce [2006]: between the testator and the draftsman, but no form of attestation shall be necessary.] invalid. The Claimant claimed a refund of those costs. It was held that consideration Subsequently further action was taken by and secondly there was no claim in tort needed to be given to three legal principles: the beneficiaries under the will that was for pure economic loss for the loss of an Presumption of Due Execution admitted to probate. This was a claim expectation. Very helpfully (from the point of view of the draftsman and the Testator) there is a 1 Where personal representatives had paid funds from the estate to a third party against the solicitors for a sum equal to presumption of due execution. So where on the face of it a will appears to be properly subsequently found not to be entitled, those truly entitled could recover the money the costs ordered out of the estate. The Everything changed with White v Jones executed and attested then it will be assumed to be valid. Where circumstances are from anyone other than a bonafide purchaser. solicitors argued that this was double when the House of Lords extended the such that suspicions are raised, then the Court may exercise its discretion and 2 Remuneration paid to a solicitor executor under the terms of a charging clause was recovery and they were successful in first duty of care owed by the draftsman pronounce against the will, but only if there is the “strongest evidence” that the properly regarded as “bounty” in the same way as a legacy under a will. instance. beyond the Testator, to the intended (and formalities have not been complied with. 3 A personal representative enjoyed all the powers of a personal representative unless disappointed) beneficiaries. The House of and until the grant was revoked or had determined. On appeal in 2001 the Court of Appeal Lords’ view was that where a special This was reinforced in Sherrington v Sherrington [2005] EWCA Civ 326: held that the duty of care was owed to the relationship arose as a result of the It was held payments to the firm were not payments to a bona fide third party and were Testator and the beneficiaries under the defendant draftsman giving advice which Mr Sherrington was an experienced solicitor who instructed a non qualified person to therefore recoverable in the same way that legacies would be. The firm had to refund later (invalid) will, and not to the he knew the Testator would rely on, then draw up wills for himself and his second wife. His will effectively made the children of his everything it had been paid in the way of costs from the estate). beneficiaries under the earlier will as the the draftsman was required to exercise first marriage dependent on his second wife. There were numerous obvious errors in the Testator had not intended that earlier will such care as the circumstances required. will (ie referring to the “testatrix” and containing a clause only relevant to minors) as well Contrast the case of Esterhuizen v Allied Dunbar [1998] 1 ITELR 211: to have effect. It was also held that to In the case of a will, the negligence would as conflicting evidence as to how the will was executed and attested. The children of the Here a will failed through only having one witness. A representative of will writing service compensate the estate for the loss not actually be revealed until after the first marriage successfully applied to set aside probate and the second wife appealed to at Allied Dunbar had attended on the Testator who was virtually a recluse. The occasioned by the costs would amount to death of the Testator, by which time it was the Court of Appeal. representative was unable to find another witness (despite offering to drive the Testator double recovery. However this order was too late. For this reason the House of to the local petrol station, an offer which the Testator unsurprisingly refused). The then amended again to hold that if the Lords agreed it was right to extend it to a There were two issues in relation to due execution: whether the Deceased had signed representative left the will with the Testator with written instructions on what to do and estate had insufficient funds to settle the disappointed beneficiary. the will in the presence of the two attesting witnesses, and whether those witnesses returned on one more occasion to get it executed with no success. Eventually the costs, the legacies and creditors under signed intending to attest as witnesses that the Deceased signed in their presence. One Testator arranged execution himself but either did not read or understand the the earlier will, then the personal This has led to numerous claims by of the witnesses had given evidence that she did not see the Testator sign and did not instructions because his signature was witnessed by only one person. representative may recover damages to disappointed beneficiaries against the see his signature on the piece of paper she was asked to sign. The other witness varied make up the shortfall. So in essence a unfortunate draftsman. Not all of them are between saying he did not know if the Deceased had signed, didn’t remember seeing It was held that a will writing service is subject to the same duties as a solicitors firm and double recovery was allowed. successful but it is better to avoid the him sign, and did not see him sign .It was held that due to the confusion of the that it is well within the draftsman’s duty of care to assist his client with execution. Where argument (and the costs consequences) witnesses, this evidence could not possibly amount to the “strongest evidence” possible the Testator should be invited to the draftsman’s office or the draftsman himself in the first place by being aware of the necessary to overcome the presumption of due execution. should attend the Testator’s home with another member of staff. In this case the sorts of issues which can arise with Testator’s reclusive nature was considered and it was held further steps should have regards to validity of the will. been taken. Continued 26 The Clapham Omnibus The Clapham Omnibus 27
  14. Probate Book Review Increasing Statutory Legacy Craies on Legislation Professional negligence-delay Robert Hush, Partner and Laura Bradley, Trainee Solicitor White v Jones [1995]: Howard Kennedy Mr Greenberg is by far the best choice to edit this work with his There was a two month delay between receiving distinguished background as Parliamentary Draftsman at the instructions and death. It was held that failure to Spouses and Civil Partners to Receive More when Office of the Parliamentary Counsel. He has also deployed the prepare a will within an acceptable timescale will Partner Dies without Leaving a Will skills we find on show in the excellent “Stroud” with its brilliant amount to negligence and the firm had to compensate detail. the disappointed beneficiaries. Making a Will, and including tax advice, remains the only certain method of ensuring that worldly goods pass to intended recipients on death. The ninth edition of ‘Craies on Legislation’ is a re-writing which X v Woollcombe & Yonge [2001]: gives us the following contemporary guidance: In this matter the solicitor prepared a will for a Where someone dies without having made a valid Will, their estate is terminally ill client within a week, but the Testator died administered using the statutory rules of intestacy. The statutory legacy • it is designed to provide answers to questions that are likely to before execution. Despite her illness it was shown that is the amount payable to a surviving spouse or civil partner of someone occur to the users of legislation; her death was no expected so quickly was and it was who has died without leaving a valid Will. It was previously set at held that the solicitor had not been negligent. In this £125,000 where there are also surviving children and £200,000 where • it describes the legislative process, including important case Mr Justice Neuberger suggested that 7 days there are no children. The government last increased the statutory innovations such as legislative reform orders and Public Bill would be a sufficiently short period “in most cases” legacy in 1993. At that time 90% of estates were worth less than Committees; where the client was “elderly or likely to die”. He also £125,000 and 98% of estates were valued at less than £200,000. said “where there is a plain and substantial risk of the • it includes a practical guide to drafting, for legislative and client’s imminent death, anything other than a hand- In 2005 the government issued a consultation paper on the issue which other legal purposes; written rough codicil prepared on the spot for signature acknowledged that the levels were out of date and needed to be may be negligent”. revised. Research carried out that year by Standard Life suggested that • it covers questions of the timing of legislation including 57% of adults in the UK had not drawn up a Will, including 40% of technical issues such as retrospectivity; Profession Negligence-Failure to remind people with homes worth more than £150,000. Atkins v Dunn Baker [2004] EWCA Civ 263: • it explores issues about the extent and application of The Testator had remarried and was well aware that his The government’s consultation paper initially published on 7 June 2005 legislation, including areas such as the consequences of new marriage had revoked his previous will. In February suggested that the rates be increased to £350,000 for a surviving partner legislation on existing law and the effect of errors in 1997 he gave instructions for a new will, a draft of where there were children and £650,000 where there were no children. A practitioners’ guide to the nature, process, legislation; which was sent to him. The testator never replied and Since then the government has had to balance the interests of effect and interpretation of legislation the firm did not write to remind him. He died in August dependent partners and the sometimes competing interests of children, • it covers Acts of Parliament, rules, regulations, orders, other 2000 intestate. particularly where those children were born during previous relationships. 9th EDITION subordinate legislation, the devolved legislation of Scotland, Editor: Daniel Greenberg Wales and Northern Ireland, and European legislation; It was argued that the solicitor’s retainer can only be On 28 August 2008 the Ministry of Justice announced an increase in the ISBN: 978 1 847 03138 9 brought to an end in limited circumstances which did statutory legacy to £250,000 where there were children and £450,000 THOMSON SWEET & MAXWELL (www.thomsonreuters.com) • it examines the different rules of statutory interpretation and not apply here and that the solicitor was under a duty where there were not. The new level takes effect from 1 February 2009. Price: £249 the consequences of the Human Rights Act 1998, section to follow up. It was held that the retainer was to draft Justice Minister Bridget Prentice explained that the increase was three on statutory interpretation; and submit a draft will and that on the facts the designed to give “extra protection to married couples and civil partners “CRAIES” JUSTIFIES THE STATUTES A CENTURY ON! retainer ended there and could not be extended so as whose spouse or civil partner dies without making a Will”, but she added A review by Phillip Taylor MBE, Barrister-at-Law, Richmond Green • it looks at the consequences of the controversial rule in to say the solicitor was under a duty to send a that “married couples and civil partners should not assume that when Chambers Pepper v Hart and the case law which has since developed reminder. In addition it was shown that the Testator their spouse or civil partner dies, they will automatically be entitled to from that decision; was well aware of the consequences of not having the everything. It is up to individuals to make sure that their wishes are The distinguished Edwardian, W.F. Craies, launched the first will in place and had given no instructions to have it respected by making a Will”. edition of this work on statutes 100 years ago founded on • it describes recent trends in statutory interpretation, including completed by any particular day or event. Had he not ‘Hardcastle on Statutory Law’ which Lord Browne-Wilkinson purposive and contextual construction; been so aware, the matter may have been decided It is however vitally important to understand that the change only affects comments “have been with us from the beginning of English law differently. those who automatically inherit under the intestacy rules. It does not and, although the emphasis of judgments varies over the years, • it follows recent developments in particular areas of provide provision for partners who live together but who have never give or take a little, the basic principles remain much the same”. legislation, such as burdens of proof in criminal legislation and Conclusion married or entered into a civil partnership. For surviving partners in Then he contradicts himself! And rightly so! constitutional legislation; It appears that the overriding principle when giving those circumstances, it will remain necessary to seek relief from the instructions on execution is “know your client”. The Courts by making an application under the Inheritance (Provision for This is a splendid piece of legal expertise guiding professionals • it includes coverage of European legislation, including less sophisticated client needs more explanation and Family and Dependents) Act 1975. Unless such an application is made, through the various kinds of primary and subordinate legislation examining the nature of European legislation, its effect and written instructions may not be enough. If your client is the rules of intestacy will be applied so that the deceased’s next of kin with a twenty-first century flair which made Lord Browne- interpretation; and it contains useful extracts from judgments ill or elderly, bear in mind what Mr Justice Neuberger will inherit and this usually means the deceased’s children or, if there are Wilkinson recant immediately- the making and constructing of and other documents in the excellent appendix at the back. said in X v Woollcombe & Yonge. no such children, the deceased’s parents or wider family. Applications legislation has fundamentally altered in the last 30 years and under the 1975 Act can only be made if the claimant lived with the ‘Craies on Legislation’ sets us on the best path for the future. Greenberg’s formidable task in explaining where we are today We live in a more litigious society and the scope for deceased for a period of 2 years prior to the date of death and only then with modern legislation has been executed with a masterly professional negligence claims (particularly involving can basic financial relief be sought to meet their reasonable needs. This is an essential work for all involved in the legal and political command of the subject-matter Browne-Wilkinson says it has deceased estates which due to enhanced property processes. It provides a practical guide – 32 chapters in five been written by a man with a profound and perspicacious values are more and more valuable) is on the increase. In all circumstances making a Will remains the only way to make sure parts plus judgment extracts – to understanding and applying knowledge of his subject and that it will be indispensable- it is! It is always better to take a little bit more care in the that your loved ones are properly provided for in the event of your death. legislation of all kinds. Additionally, it gives practical information beginning than have to deal with the aftermath of a about the legislative process itself which will be extremely helpful mistake later. for learners, trainees, tutors and highly experienced lawyers alike. 28 The Clapham Omnibus The Clapham Omnibus 29
  15. Family Law Property Collaborative Law Keep a close eye on your tenants will sign up to a Participation Agreement Paul Greatholder is a solicitor and partner in the contentious property department at Russell-Cooke LLP. committing to the process and agreeing not to commence court proceedings. If the process breaks down the solicitors involved in the collaborative process may not act for either client in subsequent court Seeking possession of a The main discretionary grounds relied upon are the usual Establishing true residence proceedings. Rent Act-protected situations of tenant default (rent arrears (case 1), nuisance (case Statutory tenants who decide to move out of and/or sublet their tenancy is not always 2), disrepair (case 3)) and where the landlord seeks possession properties often maintain an apparent connection with the A lot of clients express the view that straightforward and for an employee (case 8) or for himself or a member of his property. Collaborative Law appeals to them as an landlords should be family (case 9). attractive alternative to the traditional court vigilant, says Paul For example, a tenant might keep his name on the electoral based process, or mediation for many Greatholder In discretionary cases, the court must be satisfied that the register for the property or will ensure that the utility bills for the reasons, some of which are: ground is established and that it is reasonable to make the property remain in his name. The landlord may often perceive This article focuses on practical tips order. The courts can consider the needs of the landlord and this to be a difficult evidential obstacle, but, in practice, the • The clients are in control of the process. for landlords, surveyors and lawyers tenant, the parties’ conduct, both before and during the landlord should not find it difficult to overcome. They set the agenda and the pace and when considering a claim for proceedings, and the respective lengths of occupation or craft individual and more flexible possession. ownership of the property in question. First, an enquiry agent can make discreet investigations in the solutions for their family. neighbourhood of the property; neighbours can be surprisingly There have been no new Rent Act Quite frequently, it is clear that the reasonableness requirement helpful. Further enquiries will frequently reveal whether the tenant Collaborative Law is an • The clients are able to raise important tenancies since 1989. It is has been established, but this should not be taken for granted. owns or lives in another property. An inspection of the property innovative approach to concerns, fears and goals in a non- conceivable that a Rent Act tenancy will also provide information on occupational arrangements. solving problems in a non- confrontational environment, fully could be continuing on terms that are Suitable alternative accommodation confrontational way and is supported by their solicitor throughout. exactly the same as those originally The reasonableness requirement is required to establish another The landlord must then confront the tenant. If the tenant has a used to resolve issues arising granted, including rent. The tenancy possession ground, namely that suitable alternative legitimate reason for a temporary absence, or is in a “two- from family breakdowns, If the collaborative process is successful, it could then be terminated only in accommodation is available. homes” position, the situation should be easily explained. including financial matters enables the clients to move forward accordance with the terms of that However, if the tenant’s answer is less than satisfactory, a well- and issues relating to the separately with a better understanding, tenancy (and the Rent Act 1977). Formerly, a landlord might have asked the local housing advised landlord should continue to press the tenant for children of the relationship. and most importantly, if there are children, authority for a certificate that it (the authority) would provide evidence. better co-operation for the future. In practice, however, this is rare. The alternative accommodation, such certificates constituting The collaborative process will not be initial contractual tenancy is often “conclusive evidence”. These are now rare. When asked, most people could provide copious information on suitable for every separating couple as it Although the process requires a different likely to have become a statutory where they live, either documentary or by way of statements requires a foundation of goodwill between mindset for the solicitors who are tenancy following the expiry of the The Act suggests that “suitability” should be considered by from friends, family and neighbours. “Where do you live?” the clients and a commitment from both of accustomed to the traditional role that they original term, and sometimes reference to whether the tenant would have “reasonably should be one of the most straightforward questions anyone is them to resolve the issues in the best way play in representing their client in court following the landlord securing a rent equivalent” security under the new arrangement. The court required to answer. Any hint of evasion or inconsistency is likely possible for the whole family. It is unlikely based litigation, it is usually successful review by rent registration under the should also take account of where the tenant and/or his family to justify a landlord’s suspicions. to be suitable in situations where one and the clients generally exit the process 1977 Act. works, the rent and the extent and character of the property. client is intent on obtaining the best with their dignity intact for which they are The value to a landlord in recovering possession of a Rent Act- possible financial outcome, no matter always grateful. A landlord that is seeking to terminate The alternative accommodation does not have to be offered by protected property means that a careful evidence-gathering what the consequences to the family are, the occupation of a statutory tenant is the landlord. A frequent example of alternative accommodation exercise is often a worthwhile investment. or where one client may be intent upon The process allows the clients to feel more not technically obliged to serve a is other property that is owned or occupied by tenants concealing or misrepresenting their assets supported than the mediation process, notice to quit before bringing themselves. Rent Act-protected premises do not have to be the Tips for landlords and their advisers or income. because each client has their own solicitor possession proceedings (subject to only premises occupied by the tenant they merely have to be his • There is no substitute for regular and substantial contact with at their side looking out for them, and the the Rent Act requirements considered or her main residence. A second home is therefore permitted. the tenant to establish that all is normal at the property. The process itself is conducted by way of interests of the family as a whole. below). However, unless there is a • If the terms of the tenancy have been breached, a right to a series of four way meetings attended by compelling reason not to do so, it is A tenant may occupy two properties for legitimate reasons: he possession is not automatic; among other things, the court is the clients and their respective solicitors. Eileen Pembridge (senior partner) and probably best practice to serve such may need to do so because of work commitments or because it entitled to consider the behaviour of the parties. The lawyers work together to manage the Louise Barretto (a partner and deputy a notice. is temporarily necessary to look after an ill relative. However, not • Any sign or suspicion that a tenant has moved out of the process and will have special skills, having head of the family department) Elizabeth all arrangements are so innocent. property should not be ignored. Enquiries will often provide trained as collaborative lawyers with Jones (partner) and David Hodgson Grounds for possession helpful evidence. Resolution. The solicitors work in practice (solicitor) are all trained collaborative There are discretionary and If a statutory tenant ceases to occupy rented property as his • Evidence from the tenant should be considered critically. The groups (called pods) with others who have lawyers at Fisher Meredith. You may mandatory grounds (or cases) for only or main residence, Rent Act protection is lost. Nevertheless, tenant should be asked to explain inconsistencies or gaps. trained. For the process to be successful contact Eileen Pembridge on 0207 091 possession. it is not uncommon for Rent Act tenants to take the risk of careful planning is required by both 2740 or by email to subletting their protected property, often at a higher rent than Editors Note solicitors who will need to work closely eileen.pembridge@fishermeredith.co.uk. If The mandatory grounds are mainly their own, while living in another property that they might own or This article was originally published in the Estates Gazette in together to keep it on track. you would like to find out more about this concerned with situations where rent. December 2008. process. notice was given at the outset of the The meetings are arranged in a pleasant tenancy that possession would be room with refreshments, and usually Louise Barretto required at a later date. They are alternate between the offices of the Partner, Family Department rarely available today. respective solicitors. At the beginning of Fisher Meredith Solicitors the process the clients and their solicitors 30 The Clapham Omnibus The Clapham Omnibus 31

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