Middlesex · 2016-06-19 · DARRELL WEBB Desor & Co 768 Uxbridge Road, Hayes, UB4 0RU (020 8569...

Spring 2008

MiddlesexThe Bill of

Official magazine of Middlesex Law Society

Past Presidents Dinnerphotographs

3

con

ten

tsPUBLISHERBenham Publishing Limited4th Floor,Orleans House,Edmund St,Liverpool,L3 9NGTel: 0151 236 4141Facsimile: 0151 236 0440email: [email protected]: www.benhampublishing.com

ADVERTISING AND FEATURES EDITORRoz Castillero Payne

DESIGN AND PRODUCTIONFern Badman

ADMIN MANAGERLynn Noord

ACCOUNTSJoanne Casey

MEDIA No.1111

PUBLISHEDMay 2008© Bill of Middlesex - Benham Publishing Ltd

LEGAL NOTICE© Benham Publishing Limited.None of the editorial or photographs may bereproduced without prior writtenpermission from the publishers. BenhamPublishing Limited would like to point outthat all editorial comment and articles arethe responsibility of the originators and mayor may not reflect the opinions of BenhamPublishing Limited. No responsibility can beaccepted for any inaccuracies that mayoccur, correct at time of going to press.

Disclaimer.The Middlesex Law Society welcomes allpersons eligible for membership regardlessof Sex, Race, Religion, Age or SexualOrientation.

All views expressed in this publication arethe views of the individual writers and notthe society unless specifically stated to beotherwise. All statements as to the law arefor discussion between member and shouldnot be relied upon as an accurate statementof the law, are of a general nature and donot constitute advice in any particular caseor circumstance.

Members of the public should not seek torely on anything published in this magazinein court but seek qualified Legal Advice.

Contentscontents

3 Contents4 Officers for 2008/20094 Committee Members

local issues5 President’s Page6 Editorial6 Members Application7-8 Council Members Report9 Brentford County Court Users Report10 Tribunals Service takes forward reforms10 Important developments at Land Registry

conveyancing11 Land Registry identity checks11-12 Home Information Packs – turn to the experts

family law12-13 Divorce can be so unfair

legal aid14-16 Surviving in a Post Carter World?16 Legal aid: joint statement17 Summary of settlement

social18-19 Annual General Meeting 200820 Past Presidents Dinner

personal injury20-21 London Mothers receive worst maternity care22-23 Full compensation for the victims of head injury

finance24 Markets in a Spin

criminal law24 Confiscation – is it hopeless?

professional issues26 Paralegals – cost effective or down market?27 Are good HR policies worthwhile?28-29 The knock at the door30 J&C Investigations Limited31 Understanding the City, from the College of Law

young members group31 Junior Lawyers

book review32 Oxford Dictionary of Law Enforcement

entertainment33 Film and the Law

liability34 Open-ended Liability for dangerous trees?

charity33-34 New Charity Tribunal opens for business34 Solicitors Benevolent Association Celebration

5

loca

l issu

es

President’s Page

I would like to thank the MiddlesexLaw Society (MLS) Immediate, PastPresident Santokh Chhokar for allthe hard work he has undertaken onbehalf of the MLS last year. Amongstnumerous achievements he hasintroduced a simplified membershipstructure and obtained corporatesponsorship from both Barclays andHSBC banks for which we areextremely grateful. I am extremelypleased Santokh has agreed to stayon the Committee and continue toobtain further corporate sponsorship.

I am pleased that the MLSCommittee and Officers have agreedto stay on to assist me in trying tofulfil the aims set for our GoldenAnniversary Year. I hope to be able tomeet my obligations to the best ofmy abilities as your President thiscoming year.I would also like to thank the existingmembers of MLS for their continuedsupport. Full details of our newCommittee can be found on page 4.

In this our Golden anniversary year, it is my vision to fulfil the following aimswith your help and support:

1. Increase the membership numbers of the society 2. Expand services to the Young Members Group 3. Increase corporate sponsorship4. Launch an updated website for both the MLS and the YMG5. Send questionnaires to all solicitors in the MLS area to find out how we can

improve matters for them and how they can assist our YMG6. Provide training and education courses on relevant topics7. Investigate the possibility of providing courses on line8. Forge links with community groups in the locality regarding pro bono

groups 9. Provide social events which enable networking opportunities (see Dates for

your Diary below)10. Participate in consultation process with legal reforms

I would like to say a special thank you to our Administrator, Peter Hesom forgoing beyond the call of duty to ensure the smooth running of the committeemeetings and training events. Lastly and certainly not least, I must extend mysincerest gratitude to Past President, Alured Darlington for being my mentor.

Yours Maria Crowley, President 2008/[email protected]

4con

ten

tsOFFICERS FOR 2008/2009

President:MARIA CROWLEY Crowley & Co.72 Hammersmith Road, London W14 8TH(020 7371 3177)(0790 6099171)e-mail: [email protected]

Vice Presidents:PROFESSOR MALCOLM DAVIESHead of Ealing Law SchoolThames Valley University,St. Marys Road, Ealing W5 5RF(020 8231 2140) e-mail: [email protected]

SIMON HOBBSIliffes Booth BennettCapital Court, 30 Windsor Street, Uxbridge UB8 1AB(01895 207983) (DX 45105 Uxbridge )e-mail: [email protected]

Honorary Secretary:MAURICE GUYERVickers & Co.183 Uxbridge Road, Ealing W13 9AA(020 8579 2559) (DX 5104 Ealing)e-mail: [email protected]

Honorary Treasurer:ELISABETH VAN DER WEIT Hameed & Co147 High Road, Willesden NW10 2SJ(020 8830 1335)e-mail: [email protected]

Honorary Social Secretary:ROBERT DREPAULVickers & Co183 Uxbridge Road, Ealing W13 9AA(020 8579 3511) (DX 5104 Ealing)e-mail: [email protected]

Honorary Membership Secretary:DARRELL WEBBDesor & Co768 Uxbridge Road, Hayes, UB4 0RU(020 8569 0708) (DX 44657 Hayes 1 Middlesex)e-mail: [email protected]

Council Members for the Middlesex Area:Central & South MiddlesexMichael Garson of Kagan Moss22 The Causeway,Teddington TW11 0HF(020 8977 6633) (DX 35250 Teddington)e-mail: [email protected]

North MiddlesexMichael Singleton of Singletons36 The Town, Enfield EN2 6LA(0020 8363 6671) (DX 90604 Enfield)e-mail: [email protected]

The Law SocietyGreater London Regional Office,The Law Society,113 Chancery Lane, London WC2A 1PL(020 7316 5554) (DX 56 London/Chancery Lane)Regional Manager: Morag Goldfinche-mail: [email protected]

COMMITTEE MEMBERS

IMMEDIATE PAST PRESIDENT:Santokh ChhokarChhokar & Co29a The Broadway, Southall UB1 1JY(020 8574 2488) e-mail: [email protected]

Sundeep Bhatia of Beaumonde Law Practice1 Olympic Way, Wembley, Middlesex HA9 0NP(020 8452 5151)e-mail:[email protected]

Richard Bond of Ealing Magistrates CourtGreenman Lane, Ealing W13 0SD(0845 6014753) (DX 5166 Ealing)e-mail:[email protected]

Robert Borwick of ABV SolicitorsKingshott Business Centre,23 Clayton Road, Hayes UB3 1AN(0844 587 9996) (DX 44650 Hayes (Middx))e-mail:[email protected]

Alured Darlington of Veja & Co593 Uxbridge Road,Hayes UB4 8HR(020 8581 1502) (DX51756 Hayes 3)e-mail:[email protected]

Dave Debidin of Debidins 6 The Broadway, West Ealing, London W13 0SR (020 8567 1381) (DX 39500 Hanwell)e-mail: [email protected]

Neeta Desor of Desor & Co 768 Uxbridge Road, Hayes, Middx UB4 0RU(020 8569 0708) (DX44657 Hayes 1 Middlesex)e-mail:[email protected]

Hardeep Dhillon of Desor & Co768 Uxbridge Road, Hayes, Middx UB4 0RU(020 8569 0708) (DX44657 Hayes 1 Middlesex)e-mail:[email protected]

Maralyn Hutchinson of Kagan Moss22 The Causeway,Teddington, Middx TW11 0HF(020 8977 6633) (DX 35250 Teddington)e-mail:[email protected]

Edward Lock of Lock & Marlborough3 The Broadway, Gunnersbury Lane, London W3 8HR(020 8993 7231) (DX 80256 Acton)e-mail: [email protected]

Juliet McCammon of the Home Office10 Connaught Avenue,Ashford, Middx TW15 3HY(01784 642630)e-mail:[email protected]

Ariya Sriharan of Sriharans223 The Broadway, Southall UB1 1ND(020 8843 9974) (DX 119583 Southall 3)e-mail:[email protected]

Renuka Sriharan of Sriharans223 The Broadway, Southall UB1 1ND(020 8843 9974) (DX 119583 Southall 3)e-mail:[email protected]

Gillian Travers of Crown Prosecution Service29a Cunningham Park, Harrow HA1 4QW(020 8861 1791) e-mail:[email protected]

University Representative:Penny Kent of Middlesex UniversityChair of the Law GroupMiddlesex University Business SchoolThe Burroughs, Hendon NW4 4BT(020 8362 5837) e-mail:[email protected]

Honorary MemberTom Cryan4 West Drive Gardens, Harrow HA1 6TT(020 8954 1647) e-mail:[email protected]

PAST PRESIDENTS

R Garrod, J A S Nicholls, R C Politeyan, J Aylett,K Goodacre, H J B Cockshutt, W Gillham,L Lane Heardman, D Grove, L A Darke, C Beety,Mrs L E Vickers, H Hodge, E G B Taylor,A A M Wheatley, A H Kurtz, M J S Doran,H B Matthissen, G Parkinson, HHJ R D Connor,A Bates, J J Copeman-Hill, D B Kennett-Brown,S B Hammett, Miss F A Shakespear, HHJ P E Copley,A M Harvey, H R Hodge, G R Stephenson, B S Regler,W J C Berry, A S Atchison, L M Oliver, S W Booth,D D P Debidin, R E J Hansom, E H Lock, Mrs A Taylor,Mrs N Desor, Ms M Hutchinson, M Guyer,R S Drepaul, A Sriharan, Ms M Fernandes,A Darlington, S Chhokar

FUNCTIONSFamily Law Dinner

Annual Dinner

Charity Quiz Night - 13 November 2008

50th Anniversary Dinner - 6 February 2009

See Newsletter for ongoing events*Working dinners for specialised interest groups andinclude 2 CPD hours for £50. Contact ourAdministrator or Social Secretary for details or visitour website.

COMMITTEE MEETINGS200817 March 21 April 19 May 16 June 21 July 15 September20 October 17 November200919 January 16 February

AGMWednesday 11 March 2009

Parliamentary LiaisonEdward Lock

Contact the Middlesex Law Society Administrator,Peter Hesom at 55 Brookbank Avenue, Hanwell,London W7 1LA or DX 5104 EalingTel mobile 07930 386798 e-mail: [email protected]

www.middlesex-law.co.uk

Dates for your diaryCharity Quiz Night

Thursday 13 November 2008Ealing Town Hall W5

to raise funds for the Solicitors Benevolent Association

(details on page 35)

50th Anniversary Dinner Friday 6th February 2009

Law Society Reading Room, Chancery LaneGuest: President of the Law Society

For further details or to reserve a table,contact Social Secretary, Robert Drepaul

on 0208 280 0195 or [email protected]

EditorialLeading up to the 50th anniversary ofthe first formation meeting of thethen Central Middlesex Law Societyon the 28 January 1959, it is worthrevisiting our Society’s originalMission Statement for a few minutes.

The first part of the MissionStatement was to promote the interestsof all solicitors in the Society’s area. OurSociety’s original area has expandedfrom the Boroughs and UrbanDistricts of Acton, Chiswick, Harrow,Uxbridge, Willesden, Brentford,Ealing, Ruislip-Northwood andWembley to include South Middlesexand, since 2002, North Middlesex.Our Society’s area is now the wholeof the Ancient County of Middlesex.Membership categories now include aFirm’s membership and extendedAssociate Membership categories [seebelow].

The Second part of the MissionStatement was to make representationson behalf of those solicitors [in theSociety’s area] to the Law Society,Parliament and others. The separation

of the regulatory and representativeroles of the Law Society hasconsequentially resulted in ourSociety being able to activelycampaign and lobby on its members’behalf. The ‘Blind Justice’ campaignof sending copies of the Bill ofMiddlesex to every MP in the Houseof Commons, not to mention ourParliamentary Liaison Officer’sactivities, must have given heart tothe President of the Law Society, itsCEO and Legal Aid Manager in theirrecent endeavours. The settlementwith the Legal Services Commissionand the Ministry of Justice sets astrong precedent for futurerepresentative campaigns. [Details canbe found on pages 16 and 17]

The third limb of the MissionStatement to support and encouragelegal education and training continuesin a very competitive arena.Following a tenacious lobby by ourAdministrator, the SolicitorsRegulation Authority has self-accredited our Society for future CPDcourses. The Young Members Group

includes students andrepresentatives from the three mainacademic organisations in our area,namely Thames Valley University,Middlesex University and BrunelUniversity. Our Vice-President is noless a Professor of Law.

The final part of the MissionStatement to work with similarorganisations to organise social activitieshas seen amongst others, a GrandDinner at the RCJ with the LordChancellor, a Bollywood Ball, anOpera Evening for Past Presidentsand Annual Charity Quiz Nights, thelatter raising several thousands ofpounds for good causes.

It’s was not so much MissionImpossible but Mission Well Done!

Robert S. Drepaul

Council Members ReportReport filed by Michael Garson who is a member of the Legal affairs and Policy Board and Chair of the PropertySection. Michael was not present at the Council as he was attending the National Association of RealtorsConference in the US. This report has been prepared by Linda Lee who is chair of the Legal affairs and Policy Board.

Council met on 19 March

Topics discussed were -

• Policy for the representative LawSociety including an update onthe negotiations with the LegalServices Commission in relationto ongoing litigation anddiscussions concerning ourrelationship with the SRA.

• An amendment to the SolicitorsAccounts Rules imposing aspecific obligation to return clientmoneys promptly at the end of amatter and permitting paymentof residual client balances under£50 to a charity without priorpermission from the SRA. Whilethe rule change needs to beapproved by the Master of theRolls firms may want to start toreview office procedures now.

• The SRA plans to move to ‘entitybased regulation’ which willmean the Law Society can opt torepresent entities or individuals.

• Future membership consideringwhether or not there should bean extension of associatemembership (which is currentlyrestricted to trainee solicitors) tonon solicitor/non lawyermembers.

• The SRA - The SRA announcedthey will be consulting onchanges to the CompensationFund including proposals thatmembers of the society shouldcontinue to make contributions.

• Establishment of the Office forLegal Complaints - there will beone response to the plans for putforward for the new OLC fromthe Law Society as a whole,coordinated by the ChiefExecutive.

• Legal Aid - details of thesettlement reached appear onpage 17. Members are stronglyrecommended to read the fullterms of the settlement deedwhich deals with different areasof work.

• SRA Working Group - A group has been set up to look at representation ofblack and minority ethnic practitioners in some of its regulatory statistics.The group comprises of representatives from each of the three key BMEstakeholder groups and SRA representatives. The SRA has not granted aplace on the committee to the Law Society .

• Public perception of solicitors public opinion poll 2008 - The findings ofthe public opinion poll (interviews with 1004 people) carried out in January2008 make interesting reading :-

1. 31% had used a solicitor within the past two years and 51% had used asolicitor but not within the past two years. Only 18% of respondents hadnever used a solicitor. The most common matters for using a solicitorwere selling or buying a home or for making a will.

2. Reported levels of satisfaction with solicitors’ service were highest forsolicitor’s knowledge of the law (92%), the outcome of the case (88%),convenience of the location (88%), and for customer service (87%).

3. Solicitors were perceived by over three quarters of respondents as beingprofessional (84%), knowledgeable (84%), respectful 79%), andapproachable (77%). A higher proportion of respondents who had theexperience of using a solicitor gave a positive rating in relation to allqualities, compared to those who had never used a solicitor.

4. Only one third of all respondents (32%) perceived solicitors as beingvalue for money, however, almost three quarters of respondents (72%)who had used a solicitor were ‘very satisfied’ or ‘satisfied’ with the cost.

5. Although almost three quarters (74%) of respondents consideredsolicitors in general to be trustworthy, when asked to rate solicitors’trustworthiness relative to other professionals, solicitors did not fairquite so well. Just over on quarter (29%) of respondents rated solicitorsin their top three most trusted professionals. The most trustworthyprofessionals were doctors (78%), police officers (52%), vicars/priests(34%) and bank managers (30%)

6. Almost three fifths of respondents (57%) indicated that they would go toa solicitor for advice about legal issues whereas two fifths (41%) saidthey would go to a Citizen’s Advice Bureau.

7. Solicitors were perceived as being essential for selling or buying a home(90%), for claiming compensation for injury or medical accident (84%)and for dealing with the affairs of someone who has died (84%)

8. Awareness of quality marks for solicitors was low (21%), however almosthalf of those who were aware indicated that these marks would stronglyinfluence their decision to use particular solicitor or firm. This will beof interest in discussions for future accreditation schemes.

Education and training committee - This has been reconstituted and is stillrecruiting external members. It plans a June workshop on the new style legalpractice course and will prepare a response to SRA consultation on theQualified Lawyers Transfer Test.

Rules and ethics working group - I sit on this group that has now considered 7documentation papers from the SRA on future changes to accommodate theLDP once the LSB is constituted.

Complaints handling Plans 2007-2008, 2008-2009 - the management boardhad reviewed the LCS’s performance against the legal LSCC targets for 2007 and

76

loca

l issu

es

loca

l is

su

es

Surname _______________________________________________________________________________________Mr / Mrs / Miss / Ms

Forenames ________________________________________________________________________________________________________

Name of Firm or Organisation ______________________________________________________________________________________

Postal Address or DX no: ___________________________________________________________________________________________

Telephone _________________________________________________________________________________________________________

Email ______________________________________________________________________________________________________________

Status & Area of Work _______________________________________________ Date of Admission __________________________

Would you be interested in joining the Committee? Yes/No

I wish to apply for FULL / ASSOCIATE / FIRM Membership of the Society (see below for details)

I enclose herewith my cheque for £ _________ for the current year, made payable to "Middlesex Law Society"

Signature ____________________________________________________________ Date _______________________________________

Individual Subscription Rates:

Full Membership: £50.00 per annum - 3 years since admission

£30.00 per annum - less than 3 years since admission or Members in full-time employment in

Local Government or Industry

Associate Membership: £15.00 per annum - Trainee Solicitors, ILEX members, Paralegals, caseworkers, fee earners and

students of law

Firm Full Membership: Partners/Solicitors 2-5 £125 per annum 6-10 £250 per annum 11 or more £500 per annum

Please return completed form and remittance to: The Administrator, Middlesex Law Society, 55 Brookbank Avenue,

Hanwell, London W7 1LA or Middlesex Law Society DX: 5104 Ealing Tel: 07930 386 798

CONTACT THE MEMBERSHIP SECRETARY TO CHECK IF YOUR SUBSCRIPTION IS UP TO DATE

Middlesex Law Society (est. 1959)

APPLICATION FOR MEMBERSHIP

98

loca

l issu

es

loca

l is

su

es

2008. A group has been establishedto discuss issues concerning futurerelationships between the LawSociety and the SRA, particularly inthe area of support services whichare under the control of TLS.

Miners compensation ex-gratiapayment - the management boardreviewed the scheme for ex-gratiapayments and reported that there isa related SDT hearing scheduled forMay which will determine theoutcome of these claims.

Solicitors disciplinary tribunal;future arrangements - there wasdiscussion about the structure whichwill give the SDT greaterindependence prior to fullimplementation of the Legal ServicesAct 2007.

Policy Compendium - Council setspolicy and delegates some of thepolicy setting function to the Boards.Committees act within theconstraints of existing policy and canrecommend new policy. However inrecent years it has been very difficultfor committees (and indeed theorganisation) to know what existingpolicy is as the policy compendiumwas abandoned some years ago. Theold policy compendium has beenlocated and is being updated.

The compendium is being circulatedto the committees for their input anda review as to whether or not all ofthe policies are contained within thatdocument and whether there areareas which now need revision.

The policy compendium will at thisstage contain outward facing policyand a formula is being devised toenable new policy to be entered intothe compendium as it is set.

Grey areas - There are a number ofareas which have no obvious homefollowing on from the split betweenthe representative and regulatoryfunctions. Some of these mattershave been resolved but some matterswere left outstanding. The LAPBwould pick up the thread to developa representative view of accreditationbut recognised the need to involvethe Membership and the RegulatoryAffairs Boards at an early stage.

Review of the committee structure -the committees are currentlyengaged in completing informationwhich will then enable the board toassess the work of the individualcommittees.

Collective Redress - the LAPB, onrecommendation from the CivilLitigation Committee, soughtapproval from Council on a majornew area of policy relating tocollective Redress and Class actionsas follows;

a) The detriment to potentialclaimants caused by lack of acollective redress procedure hasnot, as yet, been fully quantified.

b) In the absence of a proven needfor a new collective redressprocedure the introduction of anynew system should be piloted.

c) Any new collective redressprocedure should not berestricted to consumers andshould be available in respect ofboth follow-on and stand aloneactions.

d) In any collective redress systemthere should be a procedureallowing for claims to be resolvedwithout recourse to litigation butwhich, nevertheless should besubject to court approval. Thiswould prevent class actions being“catapulted” into legalproceedings unnecessarily.

e) It is unclear at the momentwhether it is possible torecommend that collectiveredress actions should all be optin or opt out until there has beena review of the way costs aredealt with in such actions.

f) The judiciary should adopt therole of “gatekeeper”

g) If the Civil Procedure Rules arereviewed, they should provideone procedural rule for all classactions. The rules should alsoinclude a class action pre-actionprotocol together with pre-actionsettlement guidance andrequirements.

h) The cost rules should bereviewed, in so far as they areapplicable to collective redressactions, for the mutual protectionof both claimants and defendantsbut without stifling access tojustice.

Law centres - a member’s motion, asfollows, was approved -

“The Law Society Council expressesits grave concern at the reports offunding difficulties for Law Centresfollowing the changes in legal aid

funding and local authority funding.Such difficulties have led to the issueof redundancy notices in some cases,and even in extreme cases evenpossible closure, thus threatening thevaluable service offered to vulnerablepeople in their locality.

Council members also pledged theirsupport to do whatever they can tosupport local Law Centres in theirconstituencies.”

Council size and composition -There was following the councilconsultation no consensus as to whatthe size of Council should be,although 75 was the single figurethat attracted most approval fromrespondents. There was little or nosupport for a Council composed ofsolely of either geographical orsectoral members but equal supportbetween those that wanted a mix ofgeographical and sectoralrepresentation and those whofavoured a primarily geographicalCouncil but with special interestgroups.

The substantial majority supported aproposal to exempt the office holdersand immediate past president fromthe need to gain re-election whilstserving as such.

And, finally,In coming weeks there is a busyprogramme of events preparing theprofession for the challenge of LDP’sand also to discuss the currentchanges and developments inrelation to Legal Aid and toConveyancing. The work of the E-Conveyancing task force has reachedan interesting stage following thewithdrawal of Land Registry plans forthe chain matrix and electronicfunds transfer both of which haveengaged the attention of theprofession over recent years.

I am as ever grateful to fellowCouncil Member Linda Lee for herreport on which this is based and amdelighted to report upon hersuccessful election to the position ofDVP for the year 2008/9.

I will be happy to provide moreinformation on any of these mattersthat may be of interest to members.

Michael GarsonCouncil Member for Central & [email protected]

BRENTFORD COUNTY COURT USERS REPORT23RD JANUARY 2008

Since the last Court User Meeting the Court has consistentlyachieved the required Public Service Agreement (PSA) figure.Our year to date figure since April 2007 is 98.47% showing thatwe have dealt with a very high percentage of work within 5days. Our Bailiffs continue to provide a good level of serviceand possession appointments are routinely listed within 5weeks, despite a huge increase in possession work. All of thewaiting times for the various types of hearings are generallywithin target and the Court is now successfully using both theelectronic diary system and PCOL (Possession Claims on Line).

The Family and Possession Focus Groups meet twice a year and have succeededin making improvements to various procedures. The next meeting of the FamilyGroup will be on 15th May 2008 at 9.15 am and the next meeting of thePossession Group will be 17th September 2008 at 9.30.

If a fax is sent (only one copy please), then DO NOT then send a hard copythrough the post. When this happens, it often means that two members of staffare dealing with the same item and can waste time. The Court will not dealwith any faxes which require a fee for obvious reason.

Please remember we have 5 Customer facing e-mail addresses as follows:[email protected]@Brentford.countycourt.gsi.gov.ukenquiries@Brentford.countycourt.gsi.gov.ukfamily@Brentford.countycourt.gsi.gov.ukhearings@Brentford.countycourt.gsi.gov.ukThe emails are checked at least twice per day. Anything urgent will be dealtwith accordingly, any other emails will be dealt with in 5 working days.

ListingsPossessions are currently being listed in 8 weeks (PCOL). From the 7 April, localauthority and housing association possession claims will be listed from 10.30-11.30am every Friday and private possession will be from 11.30-12.30pm.Short Civil are currently being listed in 14 weeks.Small Claims are currently being listed in 13 weeks.Children Act are currently being should be back to 10 weeks.

BailiffsIn 2007 the bailiffs at this Court set 1957 possession appointments and attended899 of those. This compares to 865 possessions attended from a similar numberof appointments in 2006. The number of possessions attended by the courtbailiff team are expected to rise again this year and would ask that customersbe as patient as possible, when waiting for eviction appointments.

Ex-parte Orders Some Ex-parte Orders are not beingcollected. If an application is seriousenough to warrant an ex-partehearing then it should be collectedurgently. The Applicant isunprotected until the Order has beenserved, therefore if the order is leftat Brentford it defeats the object ofthe ex-parte in the first place. If theorder is not collected, then the ordermay be discharged.

Solicitors Removal from theCourt Record There have been cases where clientshave turned up at Court withouttheir legal representatives becausethey have either no longer instructedone or not funded. Legalrepresentatives must attend. It iscontrary to the rules of the court anda breach of duty if they do not attendand are still on record (CPR Part 42).Solicitors can only be removed ifclient gives notice to the Court or theSolicitor applies to the Court andtheir Client at least 2 clear daysbefore the hearing. Solicitors will beremoved from record once a Notice ofDischarge or Revocation of PublicFunding was received.

Date of next meetingWednesday 30th July 2008 at 9.15 am.

Sue Knight, Court Manager

Copy DeadlinesSummer Issue 08 20th June

Autumn Issue 08 19th September

Winter Issue 08/09 12th December

Anyone wishing to advertise or submit editorial for publication in the Bill of Middlesex please contact Roz Castillero Payne, before copy deadline.

Email: [email protected]

Tel: 0151 236 4141

10loca

l is

su

es

Home InformationPacks – turn to theexperts

11

All homes being marketednow need a Home InformationPack (HIP), but less than a yearsince they were introduced weare already hearing horrorstories of inaccurate andincomplete HIPs causingproblems for buyers andsellers. Whichever you are, tobe sure a HIP is truly reliablemake sure it is prepared by asolicitor.

The government hopes that HIPs givepotential buyers the necessaryinformation to make a decision as towhether or not to buy a property. Thereality has sometimes been quitedifferent, with examples of HIPsemerging which have failed to pointout vital information, one examplebeing that the property might be inthe middle of a conservation area.

Sadly, we are hearing that some estateagents and other non-solicitor HIPproviders are cutting corners toproduce HIPs on the cheap, resultingin an incomplete and inaccurate HIPfor the seller that the buyer might bereluctant to rely on.

The situation looks like it could geteven worse. From May 31st, thegovernment plans to make itcompulsory to have the HIP completeand in place before you even put theproperty on the market, delaying thetime you are able to market yourhome. So expect to see even morerushed HIPs emerging.

Many of the documents required in aHIP are of a legally complex naturebut are vitally important to get right.For example, standard searches showimportant details, such as any chargeslinked to the property, buildingproposals in the surrounding area andwater and drainage services for theproperty. So the best professional toproduce your HIP is a qualifiedsolicitor.

Not only is a solicitor best placed toprovide a HIP, he or she can alsoexplain what the contents mean andidentify any problems associated withit or legal problems that might beunique to your property.

The cost of a HIP – from around £300– is sometimes seen as an unwantedaddition to the bill of selling up, andsome estate agents are offering it freeas part of their services. This mightsound like a great deal, but there is nosuch thing as a free HIP.

An estate agent’s commission mightrise to cover the cost of their HIP, andif you choose to change estate agents,you will often be required to pay totake that HIP with you anyway. So ifyour agent offers a cheap HIP, be sureto ask them to explain their fees andcharges so you are absolutely clearabout what is involved.

If you go straight to a solicitor for aHIP, it is portable, so if you decide tochange estate agents, you can use thesame HIP. It is up to the seller todecide who produces their HIP.Despite this we are hearing of someestate agents insisting on their clientsusing third party HIPs providers aspart of their terms and conditions,something you should be wary of.

The Law Society advises anyone whois selling a home to get a solicitorinvolved in the HIPs process right atthe outset. Solicitors can provide a onestop shop for getting your HIPsdocuments in place and have the legalexpertise and conveyancingexperience to make sure everythinggoes smoothly.

Not only that, a buyer’s solicitor ismuch more likely to rely on theaccuracy of a HIP prepared by anothersolicitor, which will help speed up theconveyancing process.

Paul Marsh is Vice President of the LawSociety of England and Wales

(continued)

Creation of a single Durham Office and Closure of Harrow and York Offices From 1 April 2008, as a result of the Land Registration (Proper Office) Order 2007, the new proper offices for applicationsaffecting land in the administrative areas for which either the Harrow and York Offices or either of the two DurhamOffices was the proper office prior to that date will be as shown in tables below

Harrow and YorkThese offices are to close as part of a planned programme to reduce our office space. The first stage, as from 1 April 2008,is the transfer to other offices of the administrative areas for which Harrow and York are responsible, as shown below.

Administrative Area Current proper office Proper office from 1 April 2008Brent/Harrow Harrow Land Registry, Swansea OfficeCamden/City of Westminster Harrow Land Registry, Croydon OfficeIslington/City and County of The City of London/ Harrow Land Registry, Stevenage OfficeThe Inner Temple and the Middle TempleEast Riding of Yorkshire York Land Registry, Kingston upon Hull OfficeNorth Yorkshire/York York Land Registry, Durham Office (Southfield House)

For a period after the transfer of administrative areas, the offices at Lyon Road, Harrow, and James Street, York, will operateas sub-offices. Customers may, therefore, continue to receive correspondence from the Harrow and York addresses.

However, from 1 April 2008 customers will no longer be able to lodge applications at our Harrow and York sub-offices.From that date, any applications must be lodged at the new proper offices shown above, unless there is a writtenarrangement as to the delivery of applications between the applicant or the applicant’s conveyancer and Land Registrythat applications can be lodged at another office, whether another proper office or one of the sub-offices, as referred to inrule 15 (3) (b) of the Land Registration Rules 2003 (eg. as part of the arrangements for a voluntary registration project).Unless covered by such an arrangement, any applications delivered to the Harrow or York sub-offices will be rejected.

DurhamFrom 1 April 2008, the Durham (Boldon) and Durham (Southfield) offices will merge to create a single proper office to beknown as Land Registry, Durham Office, but the existing Southfield House and Boldon House addresses will be retained forthe delivery of all applications, as shown below.

Administrative Area Proper office from 1 April 2008Darlington/Durham/Gateshead District/Hartlepool/ Land Registry, Durham OfficeMiddlesbrough/Newcastle upon Tyne District/ Southfield House, Southfield WayNorth Tyneside District/Northumberland/ Durham DH1 5TRRedcar and Cleveland/South Tyneside District DX: 60200 Durham 3Stockton-on-Tees/Sunderland District Tel: 0191 301 3500 Fax: 0191 301 0020Cumbria/Surrey Land Registry, Durham Office

Boldon House, Wheatlands WayPity Me, Durham DH1 5GJDX: 60860 Durham 6Tel: 0191 301 2345 Fax: 0191 301 2300

Important developments at Land Registry

con

veya

ncin

gTribunals Service takes forward reformsActions to deliver a national,unified tribunals system witha strong local presence areoutlined in the TribunalsService’s Business Plan,published today.

The Business Plan for 2008-09outlines how the organisation will,over the coming year, drive forwardits strategy to reform its 28 tribunalsinto a more efficient, independentand user-focused service.

This will involve:• the opening of the Service’s first

administrative support centre,providing effective back officecase administration for a numberof tribunals, and developing plansfor two more;

• developing and starting to roll-out a new network of hearingcentres designed to host anumber of tribunals;

• setting up the first Chambers,plus the Upper Tribunal, for thenew two-tier tribunals systemoutlined in the Tribunals, Courtsand Enforcement Act 2007;

• delivering a common ITinfrastructure across the entireTribunals Service estate, enabling

more efficient working betweentribunals; and

• developing new targets andcustomer service standards todrive up performance withintribunals.

Work will also take place during theyear to bring eight new and existingtribunals, currently tied to othergovernment departments, into theTribunals Service family. They are theEstate Agents Act Appeals, ConsumerCredit Appeals Tribunal, FamilyHealth Service Appeals Authority, theReserve Forces Appeal Tribunal, theAdjudication Panel for England, the

Agricultural Lands Tribunal, theGangmasters Appeal Tribunal andthe Agricultural Dwelling HousesAdvisory Committee.

Peter Handcock, Chief Executive ofthe Tribunals Service said:

“Tribunals deal with more than half amillion cases a year, often involvingthe most vulnerable people in society.We are committed to ensuring thatthe needs of those people are at theheart of our reform agenda.

“In the two years since we wereformed, we have laid the foundationsnecessary to ensure a first classservice to the public. We now lookforward to building on this in thecoming year in conjunction with ourjudicial colleagues, and in welcomingmore tribunals to our family.”

Land Registryidentitychecks Fraud - land registry identitychecks for applicants anddisponors who are not legallyrepresented

As from 3 March 2008 LandRegistry requires evidence ofidentity when an applicationis made to register a: • transfer • lease • mortgage, or • discharge of a mortgage

in paper form.

This change will apply to allapplications to register one ormore of the abovetransactions lodged on orafter 3 March 2008.

Colin Tate - Land Registry

12con

veya

ncin

gwww.snoop4directors.co.uk is alsouseful as this shows registeredshareholdings.

There is a similar difficulty whensearching the Land Registry database.It is simple to ascertain the currentand former registered owners of atitle if you know the address, but youdon’t. The remedy is to pay a fee of£10 and submit this to the LandRegistry’s office in Plymouth withForm PN1 completed with the nameof the spouse. This will reveal alltitles to registered land in the UK ofwhich the spouse is the proprietor.

Do not overlook the possibility thatthe spouse may have interests inintangible assets such as patents,trademarks, designs and copyrights.These are easily searchable by thespouse’s name on www.ipo.gov.uk.

If you would like a copy of our guideto using the internet to findundisclosed assets, please contact meat [email protected].

And what about situations in whichthere are suspicions that assets mayhave been undervalued on the FormE completed by your client’s spouse?

An area that is often problematic is determining the values of shares inunquoted companies and unincorporated businesses. If the spouse is a directorof such a company, or is otherwise able to exercise control over the business,caution is needed before placing any reliance on recent financial statements asthese may have been manipulated to suppress the true level of profitability.

It is not uncommon for unjustified provisions to be made against ostensiblydoubtful debtors, revenue to be deferred for no commercial reason, and forexpenditures of a personal nature to have been borne by the business as ameans of reducing the reported level of profits. Manipulations of this naturemay become apparent by examining trends between successive sets of financialstatements, but more frequently they may only be revealed by an examinationof the underlying accounting records.

Sight must not be lost of the effect such manipulations of a business’s financialstatements will have on the valuation of the company. By recording anunnecessary bad debt provision of say £30,000, the value of the company wouldbe reduced by £200,000 if future sustainable pre-tax earnings were to bediscounted at 15% per annum.

Another area which is often problematic is the value of pensions. Form Erequires that the cash equivalent transfer values (CETV) be obtained from thetrustees or managers of each pension arrangement. However, in some casesCETV does not represent the fair value of the pension to the spouse. Valuingcertain types of pension arrangements is a highly specialised area, and I contactPeter Crowley at Windsor Actuarial Consultants Limited whenever I needadvice.

Divorce settlements can only be fair if the parties’ legal advisors, and the courtif settlement cannot be reached through negotiation, are fully informed of thefair values of assets available for division. I have no doubt that manysettlements would have been grossly unfair were it not for the involvement offorensic accountants.

13

Divorcecan be sounfair

My business partner and I have more than 40 years’ experienceof investigating fraud as a result of which we have learned agreat deal about how dishonest individuals seek to concealassets and misrepresent the state of their personal andbusiness finances.

A recent trend has been the frequency with which forensic accountants areapproached by matrimonial lawyers who suspect that their clients’ spouseshave not disclosed full details of their assets in their Financial Statements(Form E).

On some occasions, it is clear that no dishonesty was involved in thepreparation of an incomplete Form E. It is a 28 page questionnaire which isunderstandably both daunting and confusing for those who are not financiallyaware. It is therefore not surprising that innocent omissions occur despite theclear guidance that a person completing Form E has a duty to the court to givefull, frank and clear disclosure of all his or her financial and other relevantcircumstances. Most of these innocent omissions would be avoided werematrimonial lawyers to ask appropriate questions of their clients and providemore “hand-holding” when their clients are completing their Form Es.

But what about situations in which there are suspicions that assets may havebeen deliberately omitted from the Form E completed by your client’s spouse?It would obviously be unwise for any person to omit to record on Form E anasset of which his or her spouse has knowledge, so the chances are that yourclient knows nothing about the existence of the assets that have not beendisclosed. So asking your client whether his or her spouse’s Form E is completeis unlikely to be fruitful.

The best starting point is to examine with care the transactions shown on thebank statements which accompany the spouse’s Form E. It is normal for theseto cover the 12 months preceding the preparation of the Form E although,depending on such things as the state of the marriage over this period, it isusually sensible to request statements covering a longer period. Thisexamination should enable you to identify transfers between bank accounts(which might reveal one or more undisclosed accounts) and payments thatrepresent the acquisition of assets. However, do not overlook the receiptsshown on the bank statements. These may represent income from assets thatmay not have been disclosed.

If suspicions of undisclosed assets remain once the careful examination of thebank statements has been completed, it is time to consider other alternatives.The usual starting point is the internet, but the use of search engines such asGoogle is seldom effective, although it may be worth using a metasearch enginesuch as dogpile.com which “crawls” other search engines. It is a question ofknowing where to look, and how to search.

For example, the database of Companies House records details of all companiesincorporated in England and Wales, and it is possible to search by the name ofthe company and by the name of a director. Unfortunately, it is not possible tosearch the Companies House database by the name of a registered shareholder.We have revealed undisclosed shareholdings in companies by examining thelatest Annual Returns (Forms 363) of companies of which personal and businessacquaintances of the spouse are registered directors. The website

fam

ily law

Albert Buildings, 49 Queen Victoria Street, London, EC4N 4SATelephone: 020 7653 1920 Web: www.ballamywoodhouse.co.uk

We offer the full range of forensic services including:

• Forensic investigations • Quantification of losses

• Asset tracing and recovery • Intellectual property

• Shareholder disputes • Expert witness services

• Matrimonial finances • Mediation

• Company valuations • Forensic Technology

Five facts you must knowabout Home Information Packs(HIPs)

HIPs are intended by the governmentto give home buyers the necessaryinformation to enable them to makean informed decision about whetheror not to buy. The Law Society saysthat homeowners looking to sellshould keep these five facts in mindwhen obtaining a HIP.

1. All residential properties need aHIP once they are on the market.Anyone looking to buy a propertycan enquire with the seller’ssolicitor or estate agent for a HIP,which must be provided by law.Solicitors are currently the onlyHIPs providers to be regulated, soit is worth keeping that in mindwhen seeking a property’s HIP andassessing its accuracy andusefulness.

2. HIPs must contain an EnergyPerformance Certificate (EPC) thatgives an energy rating for theproperty, which buyers might finduseful.

3. As well as an EPC, it is compulsoryto include other documents in aHIP, such as an evidence of titleand standard searches.

4. You can ask a solicitor to prepareyour HIP. They will ensure all thenecessary legal documents arecorrect and deal with anyproblems that might arise. Abuyer’s solicitor is more likely torely on the accuracy of a HIPprepared by a solicitor, saving theseller time at the end of theconveyancing process.

5. Sellers beware! Some estateagents who offer a HIP as part oftheir services will increase theircommission to cover the cost.Even where the HIP is offered free,a seller who wishes to changeagents will sometimes have to payto take their HIP with them. Getyour HIP from an independentsolicitor and you will be able totake it with you at no extra cost.

1514

Technological Assistance

(a) Video LinksFirms may wish to make use of thevideo links between courts andvarious prisons.

Most Magistrates’ Courts will allowsolicitors firms to use these facilitiesfree of charge when they are notrequired by the court.

This would enable firms to travel totheir local Magistrates’ Court ratherthan a far off prison. In the absenceof payment for travel this is aneffective cost cutting exercise.

(b) Outsource of TypingDigital dictating machines andtranscribers mean that dictatedsound files can be sent as e mails tocountries such as India where theycan be typed out and e mailed back toEngland at a fraction of the cost ofemploying staff to do the same in theUnited Kingdom.

Furthermore the 5 hour 30 minute (4hour 30 minute difference insummer) means that sound filesdictated and e mailed to India at theend of a working day can be therewaiting when the office re opens thenext morning.

As an ex colonial outpost English isspoken and written fluently by athriving middle class.

Many firms offer this service and itrepresents one way of cutting costswithout compromising on quality.

Being forceful at policestationsSolicitors also may feel that they needto take a more robust attitude whenthey represent clients at the policestation.

In this authors experience officerswill often ask a solicitor to attend at apolice station some hours before theyare ready. They would rather asolicitor waited around thanthemselves.

Thus, this author has been the victimof calls to the police station incircumstances where officerssuddenly decide that they wish to goout on a search of a suspectsdwelling.

This kind of behaviour on the part ofcustody sergeants and officers shouldno longer be tolerated.

When asked to attend the solicitorshould ask several questions as towhether or not the officers areactually ready.

In the circumstances outlined abovethe solicitor should immediately leavethe custody suite leaving his of hermobile phone number with thecustody sergeant. However theyshould, of course, see the client for aleast a few minutes in order to formthe connection that is so importantbetween solicitor and client.

Solicitors may also feel that theyshould not remain at the policestation in order to deal with bailrepresentations. Instructions can betaken from clients post interview anda telephone number can be left tomake representations on the phone atthe time of charging if applicable.

In relation to returns on bail, firmsmay feel that they should not attend.Unless they actually know from theofficer in the case what is going tohappen at the police station. In theevent of a re bail matters can be dealtwith by a phone call to the client. If asolicitors firm cannot find out what ishappening at a police station prior toattendance then they may consideractually not attending until such timeas they actually know what is goingon. They should also perhaps conveythat information to the client so thathe or she is aware.

Revised Payment PackagesThis is probably the most sensitivereform that any law firm will have tocarry out. This is because if firmsunilaterally change the terms of theiremployees contract of employmentthen they face the very realpossibility of litigation before anemployment tribunal.

Therefore firms should tread carefullyand consult carefully before makingany decision in this respect.

Expert assistance from anemployment lawyer should be sought(this author is happy to offer hisservices in this respect).

However it may be felt that the daysof fixed salaries are coming to an endand that one way forward may be tooffer performance related packageson the basis of the money that theindividual solicitors bring in to a firmwith respect to the work that they do.This may include doing out of hourswork and not being paid an additionalfee for such work.

Surviving in a PostCarter World?They said it would neverhappen. The majority of theprofession turned away theireyes whilst Rome burnt. Yetthe worst aspects of LordCarters reforms have beenimplemented or are due to beimplemented.

At the time of writing this article(February 2008) the criminal defencesolicitor has been subjected to anavalanche of reforms that threatenthe continuing viability and solvencyof most solicitors firms and individualsolicitors.

Thus the means test in October 2006led to fewer defendants receivingpublicly funded representation at theMagistrates’ Court.

Fixed fees at the Magistrates’ Court(introduced in 2007) destroyed thecommercial viability of doing work atthe Magistrates’ Court.

Then in January 2008 fixed fees at thepolice station and the fixed litigatorsfee for preparation of cases at theCrown Court by solicitors wereintroduced.

The profession now awaits, withbaited breath, the introduction ofprice competitive tendering. All firmsboth small and large in the criminaldefence field are complaining aboutthe reforms and the way that theyhave been implemented.

This is sure to be a year when a largenumber of firms go out of business.

Perversely this is exactly what thegovernment and the Legal ServicesCommission want. There are also asmall minority of larger firms whoare also content at this state ofaffairs.

The idea is that smaller firms will be swept out of business and the largest firmswill be able to make a profit on the basis of increased volumes of businesscaused by their competitors demise.

However this author would question whether that is possible and whether weare in the midst of a grand experiment that threatens the future viability ofcriminal defence work, access to justice for our clients and increasingmiscarriages of justice.

For those who wish still to continue doing publicly funded criminal defence workthe choices are stark.

Maintaining QualityThe profession is under great pressure to maintain quality standards. The LegalServices Commission have introduced peer review and the LSC throughoutconsultation papers have continued to put emphasis on quality. However it issurely not possible to continue to provide a quality service in the same way aspreviously.

The only way firms stand any chance of maintaining some degree of profitabilityis by means of deskilling.

Thus, instead of sending fully qualified duty solicitors to police stations firmswill want to sent accredited representatives who, although they have paperqualifications, will often lack the professional experience required to dealeffectively with serious criminal offences such as murder, rape, manslaughterand serious assaults. This is bound to lead to a decline in standards at policestations and to more miscarriages of justice.

The Legal Services Commission are now consulting regarding reforms at policestation level and one net result may be that firms will not need to employ dutysolicitors in order to receive slots for duty work at police stations.

This will hasten the decline and will lead to a large amount of unemploymentamongst solicitors qualified in this field.

Firms, in order to remain profitable, will also wish to use paralegals and nonqualified staff in order to prepare cases at the Magistrates’ Court and the CrownCourt.

Crown CourtOne area where firms can benefit from the reforms is by increased use ofSolicitor Advocates.

Graduated fees paid to the bar are a lot higher than fees paid to solicitors.

Use of salaried solicitor advocates would enable firms to keep the fees paid toadvocates in house.

Sundeep Singh BhatiaCommittee Member of The Middlesex Law SocietyVice Chairman of The Society of Asian LawyersCommittee Member of The London Criminal Court Solicitors Association

leg

al a

idle

ga

l a

idThe above advice obviously applies tothose firms that still wish toundertake criminal defence work.

Many solicitors may feel that suchwork is no longer viable and maywish to take on board some of thepersonal suggestions this author hasput into practice.

Shutting down the firmThis is an unpalatable decision thatmany firms may have to make overthe coming months.

The matters to be taken intoconsideration are what is going tohappen to staff. If staff are maderedundant then the firm will have tomake redundancy payments to thatstaff.

Alternatively a new home for thosestaff may be found with another firmwho are keen to take on othersolicitors. Perhaps the criminal workof the firm can be handed on to thatother firm. As well as saving thecosts of making staff redundant it isalso a way of showing compassionand consideration for the continuedwelfare of staff who have served thefirm.

There will be many other matterspartnerships and Limited Companieswill need to consider for which theyshould seek specialist advice.

Branching OutYou or your partners may have otherareas of law they are interested in,where private payment is usual.

If so then education in those areas isnot difficult.

A whole industry exists to provideeducational courses.

Reasonably priced text books areavailable as well as advisory internetsites.

This author has a passionate interestin employment law and aftereducating himself is practicingsuccessfully in that field.

Scaling DownA midway route between closingdown and continuing in business is todownsize.

If staff is laid off then the firm mayfeel that it can operate from smallerpremises. Negotiations can beundertaken with the landlord andperhaps the remnants of the firm can

1716

the civil Unified Contract is the powerin clause 13.2.

TLS issued further Judicial Reviewproceedings against the LSC on 12February 2008 for a declaration by thecourt concerning the implications ofthe earlier judgment. However, underthis agreement those proceedings willbe discontinued on terms which areintended to provide tangible benefitsfor legal aid practitioners and whichwill establish procedures designed toensure a closer and more constructiverelationship between the parties inthe future.

LSC, MoJ and TLS believe that thisagreement represents the best wayforward for legal aid providers and forthe three organisations in the light ofthe uncertainty created by the Courtof Appeal judgment. There is a strongcommitment, on the part of the threeorganisations, to delivering thesubstance of this agreement. However,all consider that the process ofreaching the agreement and thestrong commitment to work togetherin this way in the future, are, in manyways, the most important outcome.

LSC, MoJ and TLS are pleased thatfurther litigation and the uncertaintywhich would have been caused byearly termination of the UnifiedContract have been avoided. They lookforward to working together and withother representative bodiesharmoniously for the benefit of clientsreceiving publicly funded legalservices and the providers of thoseservices.

© Reproduced with kind permissionfrom The Law Society 2008.

The settlement It is important to understand thelimits of what could have beenachieved from success in thelitigation. A hearing date for our casehad been fixed for late June 2008.Had we not reached a settlement, theLSC would have terminated contractswith a view to introducing newcontracts in the autumn in which thegraduated fee schemes wereunchallengeable. This means thatthere would have been no prospect ofreturning to hourly rates. Theprofession would have been left witha historic dispute over whether theyshould have been paid on a differentbasis during this one year, and aprolonged period of disruption anduncertainty.

Council approved the deal subject tosatisfactory resolution of a smallnumber of outstanding issues. Thesematters have been resolved. Inrespect of the amnesty forunrecouped payments on account,we are satisfied that most legal aidproviders will see real cash benefits,both in terms of not having moneyrecouped and being saved theadministrative burden of the process.We have retained our right to submita complaint of maladministration tothe ombudsman, in order to ensurethat we are able to represent any ofour members who have justifiedcomplaints that are not addressed bythe new approach.

It has also now been agreed that thesettlement is not conditional on therebeing no further challenge. In theevent of a challenge covering thesame issues as in our case, which isdeemed serious by a jointly-instructed QC, the LSC mayterminate contracts early, but theprofession will retain the otherbenefits delivered by this settlement.Financial benefits

• A revised approach tounrecouped payments onaccount from more than six yearsago – subject to cases involvingdishonesty and / or greater than£20,000 on an individual case.

move to serviced offices where thereare shared administrative facilitiesand reduced rents. Some servicedoffices have very impressive facilitiesin which to take instructions fromclients. Others, in less desirable postcodes, offer inexpensive officefacilities.

Obtaining Higher RightsAll criminal solicitors must considerobtaining higher rights of audience.This will make themselves moremarketable in the job market and lesssusceptible to redundancy.

Doing work as a consultantIf individual solicitors feel they nolonger wish to be involved in runninga criminal defence practice then theymay feel that they would wish to dowork as a consultant to such apractice whilst practicing in otherareas of law.

Personal LifeFinally, particularly at times like this,solicitors should consider that thereis more to life than work.

This author created a successfulcriminal defence firm called BrentLaw Practice until December 2006with his wife as practice manager.

Fourteen months later and solicitorand practice manager are the proudparents of four month old twins.

Whatever you decide I wish you thebest of luck.

However much politicians enjoyrunning us down our work isimportant and noble.

We give people hope and dignitywhen they are at their lowest ebb.

We protect society from the worstexcess of the legislature, and judiciaryand the police.

Without our efforts this countrywould be an intolerable place to livein.

Editor’s Note: Congratulations to Mr &Mrs Bhatia on the birth of their twinsfrom Committee, Officers and Members ofThe Middlesex Law Society.

The Law Society (TLS), LegalServices Commission (LSC)and Ministry of Justice (MoJ)have reached an agreement toresolve their differences ofview about the consequencesof the judgment of the Courtof Appeal on the civil legal aidcontract. The agreement hasbeen reached through a seriesof open, constructive andpragmatic discussionsbetween the threeorganisations.

The agreement is designed to providea significant period of certainty andstability for civil legal aid providers toenable them to adapt to the changesto the legal aid system that havealready been introduced, and toconsider and plan for the future. Theagreement also addresses a numberof specific issues that the Law Societyhas identified to the Commission andMinistry as being of concern to civillegal aid providers and, where theseissues require further consideration,sets up joint mechanisms to addressthese collaboratively. The principalbenefits for practitioners include anarrangement in respect of historicunrecouped payments (meaninggenerally payments on account madeat least six years ago), a right toundertake remainder work on the nofault termination of a contract,increased rates for specific categoriesof legal aid work and a review of thepractices and procedures relating tocontract compliance audits.

The MOJ and the LSC accept and willnot challenge the decision of theCourt of Appeal in favour of the LawSociety’s (TLS) arguments that clause13.1 of the Unified Contract isincompatible with the PublicContracts Regulations 2006 (theRegulations). They regret that theimplications of those Regulationswere not recognised earlier andacknowledge that TLS was justified incommencing those proceedings. MOJand LSC further acknowledge andaccept that the Court of Appealjudgment means that the only powerof amendment which now remains in

leg

al a

idle

ga

l a

id

• An increase of 2% on all legal help fixed fees and underlying hourly ratesfrom 01/07/08

• An increase of 2% in the hourly rates only for Level 2 Family Help lower • Care level 2 fee increased from £347 to £405 • 5% increase in CLR fees and rates for mental health (whether paid as

standard fee cases or exceptional claims), plus 2% for remote travelpayments

• 5% increase in CLR fees and rates for asylum and immigration casescovered by the standard fee scheme (whether paid as standard fee cases orexceptional claims)

• New rules on Standard Monthly Payments so that changes will not happenso often, so unpredictably and with such large variations

Stability measures • A commitment by the LSC (subject to certain caveats, particularly relating

to CLACs and CLANs) not to terminate the Unified Contract before it expiresthrough effluxion of time in April 2010

• Deferment of the further changes to family fee schemes (including standardfees for private law family litigation, adjustments to the escape thresholdfor care standard fees, and a new advocacy fee scheme) which had been duethis year, until April 2010

• Acceptance by the LSC that their right to amend contracts is significantlycurtailed, and that therefore the historic approach of making significantstructural changes during the life of a contract cannot continue

• The rule on remainder work will be changed so that firms are entitled toundertake it for two years after termination of their contract, so long as ithas not been terminated for fault.

Certainty • The LSC is publishing a route map for civil and family legal aid showing the

way forward until 2013, in which it commits not to introduce pricecompetitive tendering for civil and family cases before 2013

• The LSC is announcing a delay of six months to the earliest possible datefor the introduction of best value tendering for crime, and will publish a fullroute map in its response to the BVT consultation

• The LSC is publishing (once purdah for the local elections is out of the way)a list of the areas in which CLACs or CLANs may be introduced before April2010. No CLACs or CLANs will be launched outside these areas before thatdate.

Reviews The following reviews are being set up, with terms of reference settled in thecourse of negotiations all reviews to be published.• The setting up of a Consultative Group equivalent to the Criminal Contracts

Consultative Group. An early task for this group will be a full review of thenew fee structures.

• A joint review of peer review accreditation, the specialist quality mark andother quality assurance issues.

• A joint working group to address concerns about the contract complianceaudit processes.

• A joint review of the immigration stage billing problem, with a report to bepublished by 30th June 2008.

• Law Society involvement in the evaluation of CLACs and CLANs, includingour Head of Research to be on the advisory board

© Reproduced with kind permission from The Law Society 2008.

Legal aid: joint statement by the Law Society, Legal Services Commission and Ministry of Justice2 April 2008

Summary of settlement between the LawSociety, Ministry of Justice and LegalServices Commission2 April 2008

1918

socia

lsocia

lAnnual General Meeting 2008

Maria Crowley elected President

Speaker, Peter Williamson from the SRADarell Webb, Membership Secretary

New President, Maria Crowley and Past President, Alured DarlingtonSecretary, Maurice Guyer and Council Member, Michael Garson

More photographs at www.middlesex-law.co.uk.

pe

rson

al in

jury

21

London Mothers receiveworst maternity careby Jane Measures, Associate & Head of Birth Injuries at Withy King Solicitors

A Healthcare CommissionReport in January found thatthere was a huge variation inquality of maternity careacross the UK, with women inLondon receiving the worstservice. In London, antenataland postnatal care wereconsistently found to bepoorer, with expectantmothers not being providedwith the recommendednumber of checks, and thequality of care around the timeof birth found to beinconsistent.

The report also raised concerns aboutstaffing levels, especially amongmidwives. The Royal College ofMidwives (RCM) has estimated thatLondon needs another 2,000 midwives.

The Health Secretary, Alan Johnson,last month outlined plans for therecruitment of 4,000 extra midwives inEngland by 2012, but the RCMconsiders this to be inadequate,arguing that at least 5,000 will berequired, and that the figures do nottake account of retirements.

Meanwhile, 1 in 4 women reportedbeing left alone during labour orshortly after giving birth at a time thatworried them, while 43% of womensaid that they were not given thechoice of having their baby at home,as national guidelines suggest thatthey should.

How does all of this actually impact onoutcomes for mothers and theirbabies? At Withy King we have adedicated birth injury unit whichforms part of our clinical negligencedepartment. We are currently dealingwith around 50 birth injury cases,

socia

l

20

Past Presidents Dinner at the Grim’s Dyke Hotel24th February 2008

Middlesex Law Society is supported by and .

Photographs by Maria Crowley. Additional photographs at www.middlesex-law.co.uk.

Editor’s note: The Middlesex Law Society extends best wishes to Past President, Alec Atchison on his retirement.

double the number we were handlingtwo years ago. Our cases relate tobirths from all over England andWales, but a substantial number relateto London hospitals.

Certainly, solicitors in our specialistteam are finding that mothers inlabour are often left for long periods oftime without midwifery attention.Further, more and more cases seem tobe arising as a consequence of a poorstandard of midwifery care. Examplesof such poor care include failure todeal properly with shoulder dystocia,(where the baby’s shoulder becomesstuck during delivery), failure to callan obstetrician where the baby wasshowing signs of distress, and failing toensure that a resuscitation team wasavailable at birth when it waspredictable that the baby wouldrequire immediate resuscitation.

(continued)Peter Rutland & Richard Bearman from HSBC (right) with the Past Presidents of the Middlesex Law Society

Richard & Janet Palmer (centre) from Barclays with the Past Presidents of the Middlesex Law Society

2322

Full compensationfor the victims ofhead injury

judgement. Whilst not required to doso, the Court of Appeal addressedevery submission with acomprehensive response. In doing soand setting out their reasons lucidly,the Court of Appeal hopes thatdefendants will now accept that theappropriateness of indexation on thebasis of ASHE has been establishedafter an exhaustive analysis of all thepossible objections, in respect of careand case management costs. Theywent further to expound the hopethat it will not be appropriate to re-open the issue in any futureproceedings unless the defendantcan produce evidence and argumentwhich is significantly different from,and more persuasive than thatdeployed in the current cases. Judgeswere instructed not to be slow tostrike out any defences that do notmeet that requirement.

In consequence of this judgement,claimants can now look forward torecovering care and casemanagement costs by reference toASHE, rather than the inappropriateRPI. This will lead to claimantsreceiving care and case managementthroughout their life at the correctlevels, rather than having to accept areduced regime of care, due todiminishing funds. If the Court ofAppeal had held otherwise, thenawards for the victims of traumaticbrain injury could end up little betterthan those receiving lump sumawards for all heads of damages.

With this judgement, fullcompensation comes closer to reality.

Tel: 01895 207972Email: [email protected]

It is trite law that an award of damages should be calculatedso as to achieve, as near as possible, full compensation forthe claimant. For those suffering injuries from which theyrecover within a short time, the issue is not paramount.However, for those suffering traumatic brain injury,requiring long term care on an intensive basis, the notion offull compensation is absolutely critical.

As was stated in Wells v Wells [1999] 1 AC 345 “the object of an award ofdamages for future expenditure is to place the injured party in nearly thesame position as he or she would have been but for the accident. The aimis to award such a sum of money as will amount to no more, and at thesame time, no less, than the net loss.”

The traditional route to full compensation is the crude lump sum award.Until relatively recently this was the only way claimants werecompensated. The risk of a lump sum was that if the basis of thecalculation for future loss was inaccurate, the claimant could findthemselves under compensated. If there was a substantial increase in carecosts, then claimants would run out of money in the remaining years oftheir life. Conversely, if the claimant died prematurely, the claimant’sfamily gained a windfall.

To counteract this crude form of settlement the Damages Act 1996 broughtin periodical payments. By Section 2 (1) of the Damages Act (amended bythe Courts Act 2003) the Court has, since 1 April 2005, been required toconsider whether to make an order for periodic payments. Prior to this datethe defendant (or claimant) could avoid a periodical payments order,simply by refusing to be party to it. However, from April 2005, whethernolens volens the defendant can be compelled, as the Court now has aduty to consider periodic payments in all cases.

The battleground has arisen out of the appropriate index to be used whenassessing the amount of future periodic payments. The background lies inthe Damages Act, as follows:-

“2(8) An order for periodical payments shall be treated as providing for theamount of payments to vary by reference to the retail price index at suchtimes, and in such manner, as may be determined by or in accordance withCivil Procedure Rules.

(9) But an order for periodical payments may include provision-

(a) disapplying subsection (8), or (b) modifying the effect of subsection (8)”.

The Civil Procedure Rules (CPR) provide under Part 41.8(1)

“Where the court awards damages in the form of periodical payments, the ordermust specify-

(a) the annual amount awarded, how each payment is to be made during theyear and at what intervals;

(b) the amount awarded for future- (i) loss of earnings and other income; and (ii) care and medical costs and other recurring or capital costs;

(c ) that the claimant’s annual future pecuniary losses, as assessed by the court,are to be paid for the duration of the claimant’s life, or such period as thecourt orders; and

(d) that the amount of payments shall vary annually by reference to the retailprice index, unless the court orders otherwise under Section 2(9) of the 1996Act”.

Claimants have argued that since the amendments to the CPR, adopting theretail price index (RPI) is not a realistic basis upon which to assess a futureaward for care. This is because the index does not reflect the true cost of care,which continues to increase at a rate in excess of RPI. Therefore alternativeshave been put before the courts, with the Annual Survey of Hours and Earnings(ASHE) proving popular.

Expert evidence has been produced to assist the Court on a variety of indices,but all palpably demonstrating (in the claimant’s eyes) that RPI is not anappropriate index.

At first instance the claimant’s arguments have met with success, notably inFlora v Wakom (Heathrow) Limited [2006] EWCA Civ 1103. Brook L J acceptedthe evidence of the claimant.

In the Court of Appeal, in a number of conjoined appeals, the appellantrespondents articulated a number of issues, arguing

(a) why the court should only depart from RPI in exceptional circumstances;

(b) if it was right to modify the approach then the only modifications were toeither increase or decrease the RPI to take account of the specific circumstances(and not simply replace RPI with another index);

(c) the claimants should be denied use of an alternative index on the principleof Distributive Justice, or corrective justice;

(d) the claimant failed to discharge the legal burden of proof, by identifying andproving that a specific index on its own merits can displace the presumed indexof RPI;

(e) that any attempt to rewrite the multiplicand is an affront to the decision inCookson v Knowles [1979] A C 556 and should be rejected.

In a very detailed judgement Tameside and Glossop Acute Services NHS Trustand Ors [2008] EWCA Civ 5 the Court of Appeal unanimously rejected allsubmissions from the Appellant Defendants. Waller L J gave the leading

pe

rson

al

inju

ryp

ers

on

al in

jury

Malcolm UnderhillHead of Personal Injury, IBB

Malcolm is a personal injury specialist,particularly focusing upon high value andcomplex cases, including serious and longterm head injury, spinal injury, hand armvibration syndrome, work related upperlimb disorder, child abuse, fatalities andpsychological injury. He is listed as aleader in his field by Chambers UK legaldirectory.

We have also dealt with a number ofclaims where there has been a failureto diagnose intra-uterine growthretardation, and this can arise as aconsequence of a failure to provide therequisite number of pre-natal checks,or because the quality of those checksis poor. Our experience bears out thesuggestion that the quality of carearound the time of birth isinconsistent.

Fortunately, on many occasions, a poorstandard of maternity care does notresult in injury to either mother orbaby. Sadly, in the cases we see, babiessometimes do not survive, but moreusually may suffer brain injury due tooxygen starvation, which frequentlyleads to a diagnosis of cerebral palsy.In the most serious cases, the childmay then require a lifetime of full-time care, which means that theremay be a claim for damages runningto several million pounds. Recentcases which Withy King has concludedhave resulted in settlements of£2.2million and £1.8million, andhigher damages figures than these arenot uncommon in such cases.

In recent times, it has becomecommonplace for claimants in suchcases to be awarded “periodicalpayments”, whereby instead ofreceiving a lump sum of severalmillion pounds, the claimant will beawarded annual payments for life,designed to cater for their care andaccommodation needs, and otherregular requirements such astherapies. Because we specialise inclaims of this nature at Withy King, weare familiar with the needs ofclaimants, and how to calculate theextent of the compensation necessaryto provide a much improved quality oflife for them.

It seems that the Government, assistedby the Healthcare Commission’srecent investigations, has recognisedthat there is a significant problem withmaternity services in England, and atleast is trying now to address thechronic shortage of midwives. AcrossLondon, staffing levels remaindangerously low, and the standard ofmaternity care is frighteninglyinconsistent. Where there has beensubstandard care, With King’sspecialist birth injury team areavailable to offer sympathetic andexpert advice, and are able to help, inappropriate cases, to obtain damageswhich can change the lives of thoseaffected by birth injury.

fin

an

ce

2524

Confiscation – is it hopeless?

Imagine this – your client hasbeen convicted and you nowreceive a prosecutor’sconfiscation statementshowing a ‘benefit’ which iswholly disproportionate to hisoffence, and is a figuresignificantly larger than histotal assets. What can bedone? Is it even worthattempting to do anything, orshould you simply let theprosecutor roll over yourclient?

Very seldom in legal matters are allthe arguments on one side.Parliament has done much to tilt thescales of justice in favour of theprosecutor in confiscationproceedings, but the courts havetaken some small steps to redress thebalance.

If a very large ‘benefit’ figure isproduced it is likely that theprosecutor is employing the ‘criminallifestyle’ statutory assumptions.First, ask yourself whether the use ofthese assumptions is appropriate inyour client’s case. Are the statutorycriteria (in, for example, section 75Proceeds of Crime Act 2002) satisfied?

In my experience prosecutors rarelyaddress this point in theirconfiscation statement.

The McIntosh case

The case of HM Advocate & another vMcIntosh (Scotland) [2001] UKPC D1was a Scottish case decided by thePrivy Council. Notably Lord Binghamsaid, “It is only if a significantdiscrepancy is shown between theproperty and expenditure of theaccused on the one hand and hisknown sources of income on the

other that the court will think it right to make the section 3(2)assumptions”.So the next question is, does the evidence point to such adiscrepancy?

R v Benjafield

The potential injustice arising from the operation of the statutoryassumptions was considered in R v Benjafield & Others [2000] EWCACrim 86.

In the Court of Appeal Lord Woolf said, ““While a defendant isrequired to show that an assumption in his case is incorrect, if hefails to do this, the court must still not apply an assumption wherethere would be a “serious risk of injustice in the defendant’s case ifthe assumption were to be made”. As to the weight that has to begiven to the word “serious”, any real as opposed to a fanciful risk ofinjustice can be appropriately described as serious. The court, at the

In the last few weeks we have seen significant turmoilacross a wide range of markets with sharp daily movementsin the price of bonds, equities, foreign exchange andcommodities including oil and gold.

The trigger to this recent bout of market jitters was the bail-out of BearStearns, the 5th largest investment bank in the United States. Until now, itwas possible to argue that although the US economy looks fragile, the USauthorities have the right medicine to cure the patient.

That optimism has now gone. US interest rates have already been slashedto 2.25% from a peak of 5.25%, a $200bn package of tax cuts is on the way,and the US authorities have injected much needed liquidity into the moneymarkets. Despite all this, there has been no major sign of improvement inthe US economy.

The UK is being tarred with the same brush as America, being seen asvulnerable on account of a strikingly similar steady rise in house pricesand household indebtedness. On the currency markets, Sterling has faredbadly, falling to a new all-time low of under ?1.27 by mid-March, and is theonly major currency not to record sharp gains against the US dollar duringrecent weeks.

Perhaps even more worrying, is the effect of all this uncertainty on the UKbanking system. Banks which would normally lend money to each other inthe money markets are now taking a more cautious approach, hoardingtheir liquidity, which is pushing up short term interest rates (3-monthLIBOR is 75 basis points higher than Base Rate)

This lack of available credit (a “credit crunch”) could act as a brake ondemand and higher costs of funds in the banking sector could prevent anyBank of England Bank base rate cuts being fully passed onto the consumeron the high street.

If you have concerns about how volatility in foreign exchange and interestrates impacts your business profitability, HSBC has a local team of riskmanagement specialists to help you put solutions in place to protect yourbusiness.

Marketsin aSpin

crim

ina

l law

end of the confiscation process, has therefore aresponsibility not to make a confiscation whichcould create injustice.”

So ask yourself if the result is unjust.

Consider the evidence

There are a number of potentially usefulaspects to the Court of Appeal decision in R vGreen [2007] EWCA Crim 1248. One of theseconcerns the misuse of the statutoryassumptions by prosecutors where anindividual is involved in a course of criminalityin which monies from one crime are used tofund another. The Court referred to thestatutory assumptions as “a tool” and impliedthat they were not to be regarded as an end inthemselves. The application of the assumptionsshould be checked against reality!In particular the court held, “it should be notedthat, although section 4(3)(b) requires the courtto assume that money used to financeexpenditure was derived from drug trafficking,it does not require the court to assume thatsuch money was derived from sources otherthan those to which the evidence naturallypoints”.

The default sentence

At the end of the day if a confiscation order ismade the court will also specify a defaultsentence to be served in the event of non-payment. Sometimes courts are inclined toautomatically hand down the maximumsentence permitted under the statutory scale.

In a recent case R v Olumba [2008] EWCA Crim408 the Court of Appeal held, “It is to beemphasised that such periods of imprisonmentare intended to be roughly proportionate to thedefault of compensation, a separate matterfrom the original offence giving rise to thecompensation proceedings, although no doubtthe judge in setting the period can and shouldhave regard in general to the circumstances ofthe case. This is an exercise of discretion forfixing an appropriate default period within therelevant band”. In that case the maximumdefault sentence of 3 years had been imposed inrespect of a confiscation order of £110,000. Thiswas reduced to 2 years on appeal.

David Winch is a forensic accountantspecialising in crime and proceeds of crimeand a director of Accounting Evidence Ltd.

27

Based on the LawCare case files, a lot of interesting pointsemerge in relation to the way firms treat their staff.

Sound HR management is non existent in some firms. Partners are too busywith client work to give management the time it needs and, also, this is rarelyan area that interests them. They enjoy legal problems, yet find themselvesforced to manage a business, something for which they have little enthusiasmand even less training.

But there are two very important reasons for adopting sound HR policies. Firstly,the law makes heavy demands on employers and those who get matters wrongcan land themselves in expensively hot water. Secondly, and of just as muchimportance, well-managed staff will be loyal, motivated, cost effective andproductive.

A stable workforce is essential to a firm’s profitability. Frequent staff changesare debilitating; bring heavy recruitment agency fees; cost time and money intraining; result in poor productivity, as people “get up to speed”. There is also adrain on staff morale as others are seen to leave, perhaps in a bad atmosphere.A successful firm makes staff satisfaction and retention a priority.

The Key Elements

InductionFew firms take this seriously. Starting a new job is terribly stressful. Goodinduction shows the newcomer immediately that they matter to the firm, plusthe entrant becomes productive far faster.

TrainingWe frequently hear of firms who have spent tens of thousands of pounds onnew systems / equipment and mere hundreds on training, leaving staff demoralisedand struggling to cope. This huge investment is wasted because people simplydo not know how to function and productivity falls dramatically. Thorough andappropriate training more than justifies its cost in terms of good morale andincreased efficiency and productivity.

PayPay is surprisingly low on many people’s list of priorities when it comes tochoosing where to work. The atmosphere, proper support, work/life balance,good relationships with colleagues, volume of work, pressure, etc. matter almostmore than anything else.

Appraisals and Career DevelopmentAvoid the “dialogue of the deaf” i.e., a firm and its staff should ensure that eachknows and agrees exactly what is expected of an individual and howperformance is assessed, otherwise one thinks a great job is being done whilstthe other thinks the performance is rubbish. In such circumstances, neitherhears what the other is saying and problems then develop.

The Social Side“Those that play together stay together” was coined about couples, but is just asapt in relation to working teams. A strong working relationship requires anelement of closeness and mutual support that is strengthened when people dothings together outside work. Good employers should encourage such eventsand help meet the cost.

Personal Support Even lawyers have problems and a good employer will actively look for the signsand support staff when they occur. Partners and departmental heads will oftensay they have an “open door” policy, but have the reputation of always being toobusy or distracted to provide assistance, so those in trouble will not approachthem. Good staff are lost because the first the employer knows of an issue iswhen the employee leaves.

Employment PoliciesThe best employers are consistent.They have clear and reasonablepolicies set out in their OfficeManuals and apply them evenly andfairly.

AbsenteeismBack-to-work interviews are helpfulafter periods of sickness, so that theindividual sees that it is being takenseriously. Note the cause and thetreatment undertaken on theindividual’s file – it may be valuablein dealing with a malingerer but,more importantly, may also enableidentification of a real cause forconcern e.g. bullying or excessivepressure.

The Work / Life BalanceSome firms have a “long hoursculture”. Anyone seen leaving before7.00 pm is frowned upon and seen aslacking commitment, andcontribution is measured in numberof hours put in. This is a real mistake.Refreshed, happy, well-balanced staffare far more productive and exercisemore reliable judgement than over-worked, exhausted and stressedpeople.

LawCare

LawCare is a registered charity whichoffers a free and totally confidentialhelpline 365 days a year:- 0800 2796888Monday to Friday 9am – 7.30pmSaturday / Sunday/ Bank Holidays –10am to 4pm.

LawCare also offers support from anetwork of volunteer lawyers whohave personal experience of issues ofstress, depression, alcohol abuse etcand who will befriend another lawyerin trouble.

LawCare also offers free (except forexpenses) CPD accredited stressrecognition and managementtraining, at the firm’s premises and ata time to suit them.

www.lawcare.org.uk

pro

fessio

na

l is

su

es

pro

fessio

na

l issu

es

For law firms wishing to provideexcellent legal services at competitiverates, the answer may be to useparalegal staff to undertake the moreroutine legal work. There is nodefinition of what a paralegal is, butcommonly the term is used to refer tostaff within legal firms who are notlegally qualified but who assist inproviding legal services to the firm’sclients. Often not called paralegals,many have job titles such as secretary,administrator, clerk or manager, butessentially they are involved in feeearning work.

Paralegals come from many backgrounds somehave taken law degrees and the LPC, but havefailed to secure a training contract, others havequalified as Legal Executives and some havesimply worked for firms over a long periodperhaps starting in a secretarial oradministrative role and moving into fee earning.Others have no formal training and littleexperience.

In some firms, paralegals are the backbone of thefirm’s legal provision such as in the high volumeconveyancing market, the sector sometimereferred to as “conveyancing factories”. Insmaller firms, it may be the legal secretary thatundertakes the bulk of the conveyancing work.

Paralegals can make a valuable contribution tothe work of the firm, but often do not receive anyformal training. The training they do receive isoften on the job training, which gives them anunderstanding of the work they have to do, butmeans that they are not aware of the widerissues, the reason they take the steps they do orthe underpinning law. A fully trained member ofstaff is able to make a much better contributionto the work of the firm as/he she may then spotissues that could give rise to complaints orclaims rather than simply acting as a processorof information.

For paralegal staff to provide a valuablecontribution to the work of the firm they need tobe fully trained. Indeed, the provisions of Rule 5of the Solicitors’ Code of Conduct provide thatone of the factors that contribute to a firm beingproperly managed is having fully trainedcompetent staff. A further added benefit of well-trained and competent staff may be lower

insurance premiums, if a firm can demonstrate to its insurer that allits staff are skilled in their area(s) of practice.

There are no prescribed qualifications for a paralegal, but many firmslook for a law degree or BTEC qualification, coupled with some legalexperience. A fully trained paralegal can free up qualified legal staffto deal with more complex cases or to put more effort into winningbusiness and dealing with your clients’ more complex legal needs.

Sadly, in some firms paralegals are used as ‘cheap labour’, a news itemin the Law Society’s Gazette of 13 March 2008 highlights the very lowpay of paralegals involved in legal aid work, such reports may give riseto regulation in respect of the employment of paralegals. It istherefore in firms’ interests to treat paralegal staff fairly to avoidadditional regulation.

Well-trained paralegal staff are an asset to a firm as they can ensurefirms can provide cost-effective legal services to their clients. Giventhe challenges that will face firms over the next few years with theliberalisation of the legal market that will come with the Legal ServicesAct firms should embrace the use of paralegal staff and use them tobuild a business which will have a sustainable future in what maybecome the brave new world of “Tesco Law”.

Are good HR policies worthwhile?by Hilary Tilby

Paralegals – cost effective or down market?Jeanette A Lucy - Programmes Director of CLT’s Centre of Professional PracticeJeanette Lucy is currently the Programmes Director for CLT’s Centre of Professional Practice, where she is responsible for paralegal andall Solicitors Regulation Authority accredited programmes. Prior to joining CLT she was a Compliance Manager and Money LaunderingReporting Officer for a large conveyancing firm in the North West and previously had been a Senior Ethics Adviser (for 15 years) withthe Law Society’s Professional Ethics Division, dealing with a diverse range of conduct enquiries as well as assisting in producingseveral editions of “The Guide to the Professional Conduct of Solicitors”.

pro

fessio

na

l is

su

es

2928

The knock at the door – howto handle a visit from theSolicitors Regulation AuthoritySabina RinkerSabina is a partner specialising in solicitors compliance work at GUISE, the niche business disputes and regulatory Practiceand a member of the Solicitors Assistance Scheme.

With our regulator becomingincreasingly robust in pursuitof its stated objective ofprotecting the public frommis-behaving solicitors thebest defence is: “beprepared”. This article looksbriefly at the different typesof visit and how best tomanage the process.

Intervention

Without any notice the SolicitorsRegulation Authority (SRA) authorisesone of their Panel solicitors to stepinto a firm and assume responsibilityfor client files and monies so as toprevent loss to the public.

Although interventions were fewer in2006 (50, down from 60 in 2005 and ahigh of 113 in 2000) this is still thenuclear option in terms of regulatingthe profession.

The most notice you will have of thisaction may be a fax that morning, ifyou are lucky.

The intervened upon firm ceasestrading, the practising certificates(PCs) of all partners are immediatelysuspended (both equity and salaried).Intervention can arise from a reportby a member of the public, the Police,your local Law Society or a memberof the profession; under rule 20.04 ofthe Code of Conduct 2007 (the Code)we each have a duty to report anymisconduct we find in othermembers of our profession.

Intervention can be challengedalthough very prompt action isrequired since the application mustbe issued within 8 days of the serviceof a notice about intervention takingplace (para 4, Part II of Schedule 1 tothe Solicitors Act, 1974). There hasbeen no successful challenge to anyintervention.

Costs associated with the intervention are payable by partners (both equity andsalaried) and vary considerably but assume little change from £100,000.

The Intervention Agent does not assume responsibility for your firm’s overheadsor collecting in debtors. All partners remain jointly and severally responsible forthose matters.

Practice Standards Unit (PSU)

The PSU is tasked with visiting every firm in England and Wales to assess theircompliance in order to make recommendations for improvement.

This is obviously an ambitious target so in practice this means that certainfirms are prioritised for visits. Initially this was complaints driven but haschanged to focus on firms relying on referral arrangements. These being theareas where most issues have arisen in recent times

Forensic Investigation Unit (FIU)

This is the most common type of visit and starts with a letter from the FIUinvestigating accountant enclosing a list several pages long of the documentsthat the visiting SRA officer will wish to see. Usually one has 7 days’ notice ofsuch a visit.

The purpose of the visit will be to assess your firm’s compliance with the Codeof Conduct 2007, the Solicitors Accounts Rules, 1998 and other, associated rules.A visit may last one or more days and can lead to further visits by either one ortwo officials.

Typically when the visits are concluded an interview will be arranged withprincipals to discuss issues arising from the visits. These can take place withyour representative and should be regarded as akin to a Police interviewalthough they do not take place under caution. One of my firm’s clients hasreferred to the interview in these terms:

“…the meeting was not a discussion but more of a question/interrogation exercise,approximately 30-40 questions at least must have been asked.”

This is not unusual and in such circumstances it is vital that one does not sayanything which could jeopardise one’s position in any later proceedings. Thegolden rule is – if in doubt ask for time (e.g. 14 days) to refresh one’s memoryfrom the file and to write with a considered response possibly prepared with theassistance of a solicitor specialising in this field. Remember, always treat theSRA in a friendly, co-operative way – but never forget, they are not your friends.

Following the interview (probably many months later) a letter will arrivesending a report and asking you to answer questions about issues arising. Thisletter is the start of a process which can last several years and may end in theSolicitors Disciplinary Tribunal. Any reply to that letter needs to be carefullyprepared with the benefit of specialist advice.

Special Projects

This essentially means claimant personal injury practices about which there ismuch furore at present as a result of the controversy surrounding the miners’compensation scheme run by the DTI of which it is alleged some firms havetaken advantage.

In particular the issue of referrals and payment for those referrals is under thespotlight.

If your firm undertakes such work it would be prudent to review the firm’scompliance with the Code of Conduct (take a look at rule 9) and ensure that, ifreferrals are paid for, that the firm’s record-keeping is up to date and in place.

Investment Business Unit (IBU)

Does your firm share commission with an independent financial adviser (IFA) orother professional adviser e.g. an accountant? If so there are 2 sets of ruleswith which your firm will need to comply in order to show the IBU that yourfirm is compliant.

Those are the Solicitors Financial Services (Scope) Rules and the SolicitorsFinancial Services (Conduct of Business) Rules otherwise known as the Scoperules and the CoB rules respectively. These remain in force following the Code

of Conduct being implemented on 1July 2007. Failure to comply could bevery costly in terms of managing anycontinuing SRA inquiry which canlast up to 3 years or more. The costof investing time in putting in placeappropriate systems to ensurecompliance and/or seekingappropriate advice is tiny incomparison with the costs associatedwith managing an enquiry let alonethe cost of the reputational damageto your firm if an adverse finding isreached and published.

I strongly recommend that youreview the state of your firm’scompliance today. If a visit is aboutto take place seek advice from aspecialist in the field urgently.

www.guisesolicitors.co.ukwww.solicitorsassistancescheme.org.uk

pro

fessio

na

l issu

es

3130

Understanding the City,from the College of LawHelping young lawyers ask the right questions

When young graduates embark on a career in a lawfirm, the environment can seem intimidating in somany ways. All too often that dissuades even thebrightest trainees from asking questions beyondwhat they need to know on a day-to-day basis toplease their superiors, and their broader knowledgebase becomes limited.

By contrast, the clients that those young lawyers will ultimatelydeal with want rounded lawyers who understand a lot more thanjust the legal technicalities of their transactions and cases. Whencompanies turn to law firms for advice, they are no longer happyto accept a list of options or an array of reasons why somethingcan’t be done. They want solutions, commercial guidance and,above all, advisors who understand their long-term objectives.

With that in mind, The College of Law has introduced a newcourse to the range of PSC electives called Understanding the City,aimed at helping young legal minds to understand the broaderenvironment in which both their businesses and their clients’businesses operate. An interactive, one-day course, the programmeis designed to teach attendees in simple terms about howLondon’s financial markets work, who the principal participantsare, and what types of financial instruments are traded.

A solid grounding in, and familiarity with, the corporate financeenvironment in the UK and internationally is important to lawyerswhatever their practice area and wherever they are based, andthis course gives them the tools they need to read and understandthe financial press, and to ask intelligent questions of their clients.

By using four fictional transactions, and exploring the roles of theparticipants and the contributions that legal advisors might play,delegates will build a greater understanding of the deals beinghandled by their colleagues as well as a better comprehension ofthe issues facing the firm’s clients.

For trainees who need to know why a management team mightcontemplate an IPO on the London Stock Exchange or a privateequity-backed management buyout, this is a great starting point.For others who just want the confidence to engage with clientsand discuss news stories when they appear on the front page ofthe Financial Times without the fear of saying something silly, thisprovides an opportunity to swat up on terms like bonds,derivatives, swaps and options, futures and synthetics,securitisation and structured finance.

Knowing your private equity funds from your hedge funds, andyour commercial banks from your investment banks, can be thedifference between an embarrassing blunder and the ability to aska sensible and insightful question. Using current affairs and high-profile transactions to bring this complex subject matter to life,the new Understanding the City course from The College of Lawgives a thorough grounding in who does what and why inLondon’s financial markets and beyond.

For more information, please call us on 01483 216216,or email [email protected].

30

Today’s law student faces more challengesthan they ever did in the past what withhigher fees and a general want of allthings technological, it is a booming era forthe would be employers who, literally, havethe pick of the bunch. The up and cominglaw student is either too young orinexperienced in life or maybe, simply ill-informed to take in the future problems ofattaining the Golden Fleece that is so hardsought.

We are all too aware of the alleged discrepancies inthe admission process of the most desirableuniversities in the land, however, this, in truth, is justa glimpse of the tip of the iceberg which facesaspiring lawyers. It is to my chagrin and dismay that Irecently discovered a law student (admittedly, in herfirst year) who thought that immediately aftergraduating from university she would be classed as asolicitor. I, thankfully, brought her daydream to asudden conclusion. Better now than later.

The hurdles may be listed as, but not exclusive to,evidence of extra-curricular work, pro bono activity,evidence of legal advice, mini-pupillage or just workexperience in a relevant field. The idea is thatalthough one may graduate with first class honours,one is still profoundly stupid in the ways of the lawbut has imagination in the idea of it. The first classstudent may be bright on paper but when told to sitfor an interview for a prospective job, has socialmannerisms which, quite frankly, leave a lot to bedesired. The employer seeks not only academicqualification but also an evidence of interest, driveand ambition in your chosen field. Ones choice mustbe made fairly early into the degree such that thedecision with what field to develop ones acumen iswhat needs to be tuned.

It is my suggestion that prospective and first yearstudents are told of the gigantic task ahead of themso that they start to find their calling as soon as ispracticable so that they will not flounder at the finalhour. It is not my intention to give students theheeby- jeebies but only to make them aware of thepotential minefield in which they are about to walkinto blindfolded. There is only one avenue for theperson who wanders forth blindfolded- TESCO!

It is with great flourish that I say to all ye students, goforth and put in some extra work by obtaining a postwithin the your respective law societies, do somemooting, some debating, write articles, work inchambers (mini-pupillage), work in a firm of solicitorsetc. Do anything that makes you look moreexperienced than the other man beside you at thatinterview you’re both sitting for. It could mean thedifference between getting a further interview for thejob or being shown the door.The motto: SELL YOURSELF!!!

JuniorLawyers

ymg

pro

fessio

na

l is

su

es

J&C Investigations provide a complete andcompetitive service in the Enquiry Agent andCollections Industry all across the UK.

We can offer a speedy and cost effective, fullservice from initial trace to serving legal papersat very reasonable fees.

• Tracing• Pre-Sue• Theft Investigation• Witness Statement & Locus Quo• Accident Report Forms• Process Serving• Vehicle Repossession• Surveillance

We have been established over 25 years andonly use directly employed, experienced, staff.We are members of the ABI and are full DataProtection and CCL compliant.

Example of some letters received by usfrom Lloyds syndicates.

“We refer to the above claim and confirm wehave settled this claim for the sum of £10,000. Inview of the hard work and constant danger youput yourself in surveillance of this man we wouldlike to congratulate you on helping us to settlethis claim in such a favourable way.”

“In fact, in total Mr. Judge received just over£2,000 as we had already made a small interimpayment to him. However, we have to say it wasa most satisfactory conclusion to this particularclaim.”

Ring J&C on: 01895 438990 or email: [email protected] House, Trout Road, West Drayton, Middlesex UB7 7RU

J&C Investigations LimitedJ&C Investigations Limited isa privately owned companywho has been trading fornearly twenty five years.What do we do and is it reallyas exciting as the nameconjures up?

As with many things in life thereality is that J&C has experience inall aspects of the investigation andcollection field but unfortunately thename Investigation does notaccurately reflect the nature of thebusiness. Much of our work isachieved due to diligence andexperience. To be a good investigatoryou need to be methodical andprepared to visit the same propertiesor subject time and time again.

Fortunately for J&C our employeeshave been working in the industry formany years. They are aware that it isnot about car chases or being thenext Hercule Poiroit or Miss Marple.

Many of our clients are solicitorswithin the matrimony or insuranceindustries. We are often instructed toobtain evidence in divorce, childcustody, alimony or marital propertydisputes. A certain level of discreetinvestigation is required in thesematters. We carry out work forinsurance companies where they askus to investigate suspicious claims.This may be as diverse as losing awatch on holiday to claiming severalmillion pounds due to a trafficaccident. This will involve covertcamera work. Again this soundsexciting but being locked in the backof a Transit for two days whilst tryingto film a subject is far from exciting.

We also undertake work that is notusually associated with the industryin the mind of the public. J&C aresuccessful because we have severalfields of expertise. We can trace asubject and then serve papers onthem. We can also investigate thesubject in relation to their assets.There is no point in suing a subject ifthey are already bankrupt!

We often work irregular hoursbecause of the need to contactpeople who are not available duringnormal working hours. If not we areusually to be found at a deskconducting computer searches andmaking phone calls. We work acrossthe country and keep our own TravelGuide when it comes to good Bed &Breakfasts.

Some of the work will involveconfrontation so the job can bestressful but at all times it isimportant to keep a sense of humour.The Private Investigator has beenfrequently portrayed as a heroarchetype who stumbles intodetective stories to solve a mysterycase. This is what keeps us going aswe all tend to think we are Petrocilliwhilst carrying out a presue reporton a debtor in windy Swindon late ona Friday afternoon!

33

en

terta

inm

en

tFILM AND THE LAW No2: Two films that changed the law

Whilst Ken Loach has quiterightly become something ofa national treasure, BasilDearden (1911-1971) on theother hand is the forgottenman of British cinema.

Thanks in the main to Carol White’ssearing performance in CATHY COMEHOME, Ken Loach’s 1966 BBCWednesday Play on the plight ofhomeless families, was transmutedpromptly into SHELTER and later in1977, THE HOMELESS PERSONS’ ACT.

whose dazzling elegance spawned ageneration of dapper youngbarristers, plays a successful briefwith an ambivalent sexuality. Whenblackmail raises its ugly face, heresolves to fight it, even though it willmark the end of his glittering career.

Like Carol White, Bogarde’s intenseperformance struck a chord with theBritish public and in many ways wasinstrumental in enabling the law onsex between consenting adult malespass more smoothly throughParliament.

Whilst lionized abroad, Loach tendsto split opinion at home. Peopleeither admire his championing of theunderclass, or mock his attempts torepresent ordinary people withdignity. Yet he is the man who taughtthe younger generations of Spain(LAND AND FREEDOM 1995) andIreland (THE WIND THAT SHAKESTHE BARLEY 2006) about their recenthistory. Dearden, on the other hand,who was addressing racism andhomophobia over 40 years ago, is now

32book

re

vie

wBook ReviewOXFORD DICTIONARY OF LAW ENFORCEMENT

First EditionOxford Paperback Reference

By Graham Gooch & Michael Williams

Oxford University Press (www.oup.com)ISBN 978-0-19-280702-1Paperback £10.99

A review by PHILLIP TAYLOR MBEAwarded an honours degree in law at London University and then Called to theBar of Lincoln’s Inn in 1991. He has a busy county court practice specialising inRTA/PI matters and he presents a number of CPD courses for practitonerscovering conditional fee agreements. He was awarded an MBE for public servicein 1993.

A GREAT DICTIONARY TO DIP INTO FOR BILL OF MIDDLESEX READERS

This new publication is an adaptation of what many lawyers will remember as ‘ADictionary of Law’ some years ago. Oxford University Press have excelled withthis practical, succinct pocket dictionary which is an essential reference resourceto dip into involving all matters criminal.

The Oxford Paperback Reference series remain the world’s most trusted referencebooks. This new title on law enforcement fits in nicely with current trends in thecriminal justice process at whatever level of involvement. The reader encounterswords they may be unfamiliar with regularly as law enforcement becomesincreasingly a multi-agency activity

Graham Gooch and Michael Williams have, between them, over sixty years’experience of the investigation and prosecution of serious crimes which meetsthe new needs of our law enforcement community. The original law dictionaryhas now been expanded to meet the needs of those enforcing the law. Gooch andWilliams succeed with their aim in providing a clear definition of the terms whichare new and specific to law enforcement. There are also more detailedexplanations where necessary with key cases and statutory provisions citedwhere appropriate.

This dictionary has a very wide application because so many potential readerswill find it of use as law enforcement becomes a major significant area of appliedcriminology. Years ago when I wrote a number of textbooks on Criminology andlectured the subject at University I was in need of a pocket book of this size anddetail to assist myself as well as the students whenever I needed to find adefinition of worth. Gooch and Williams have come up with a work of worthwhich blends the difficulties of terms with an ease of understanding whichclients and all associated with criminal justice management would welcome.

The scope of the book is also wide, providing a key reference source for studentsin further and higher education, with those studying for professional orvocational qualifications and the wider public. I was particularly taken with theclarity of explanation of what I term the ‘scientific solutions’ where I can beconfronted with trying to explain in very simple English what DNA is, or what,say, ‘fingertip bruising’ is.

The work put into this dictionary should not be underestimated. It caters for theprofessional and the novice and it shows the way forward for a modern referencemanual covering the framework we now have for law enforcement in all its newguises as regular bouts of criminal justice legislation are passed and alternativemethods sought to deal with the perennial problems affecting criminal justicewhich tend to repeat themselves throughout the ages.

This is a book for the twenty-firstcentury and has excellentsupplementary material includingabbreviations and acronyms,recordable offences, disclosure codeand disclosure guidelines. Forinstance, just take a quick flickthrough it and go to ‘diving licence’which gives the reader exactly whathe or she may be looking for regardingfactual content when the memory cansometimes play tricks during apressured conference, and you get thecountries where our valid licencesapply- not a piece of information Iwould normally have at my fingertips.

The new direction in which this and, Ihope, other OUP dictionaries will go inthe future offering the one stop shopfor criminal justice definitions is to bewelcomed. The unique team of apoliceman and an intelligence officercompiling such a work is to becommended as the work of the twoagencies tend to become ever closerbecause of the shrinking of the old‘splendid isolation’ of ourinternational bodies tasked with lawenforcement towards a new age ofthreat which is far more legal thanmilitary in its makeup and needs goodlegal resources for assistance.

It is to be hoped that the dictionarywill be regularly revised with newlegislation and it becomes popular asan e-book which readers can view byvisiting this website:www.askoxford.com/shoponline/ebooks.

Thank you, Messrs Gooch andWilliams for setting a modernprecedent with your endeavours- DrJohnson would be very proud of you!

by Vincent McGrathVincent McGrath has run the sociable FILMNITE Group for over 14 years at the exclusiveSOHOHOUSE Club in the heart of the London West End. Guest speakers/soirees/meals.For details of the next course see www.filmnite.co.uk or email: [email protected] ortel: 0208 579 5339

mainly a footnote in cinematichistory.

Audiences today would findDearden’s style a little stilted anddated, whilst Loach’s films still retaina freshness. The use of Nigel Patrickas a leading man in SAPHIRE perhapsdoesn’t help, but then Dearden wasworking within the studio systemwhilst Loach has always been a freespirited independent.

However you respond to Dearden’sfilms it has to be accepted that healways had his heart in the rightplace and his attempts to openaudience’s eyes to injustices wasprescient to say the least.

In what must surely be one of thegreat moments of cinema, the youngactress painfully tries to keep a gripon her kids, as they are wrenchedfrom her by the powers that be on adarkened windswept platform atVictoria railway station. Her piercingscreams haunted members ofparliament to such a degree thatquestions were being asked in thehouse the following day.

Basil Dearden‘s films are oftendescribed as dull and worthy. Yet hewas the man who in FRIEDA (1945)was taking on the anti-Germanfeeling that was endemic in war-tornBritain. A young German nurse whosaves the life of David Farrerpolarizes a cosy English village whenshe arrives as his wife. In 1950, hemore than touches upon racism inPOOL OF LONDON, and this theme islater elaborated upon to a muchgreater degree in SAPHIRE (1959). Buthis piece de resistance is surelyVICTIM (1961), where Dirk Bogarde,

Cathy Come Home

Dirk Bogarde and Sylvia Syms in Victim

Basil Dearden

Ken Loach

Ken Loach is still going strong I’mhappy to say, and long may hecontinue to do so.

As a footnote Carol White, theBattersea Bardot, who moved anation to tears as Cathy, diedprematurely at the age of 48 havingsuccumbed to the effects of drugsand booze, largely as a result ofattempting to make it big inHollywood. A sad ending for someonewho’s touching performance wasinstrumental in housing countlesshomeless families.

3534

Open-ended Liability for dangerous trees?

Solicitors BenevolentAssociation Celebrates 150 Years of Caring

In what circumstances can yoube held liable in damages forsomething which happens to athird party on land youpreviously owned? And howlikely are you to haveinsurance cover in place toindemnify you against thatliability? These were twoquestions which arose in arecent case at trial andsubsequently on appeal.

In White v Zitouni (2007) theClaimant’s husband was killed in hisfront garden by a tree which fellduring a storm from the garden of hisneighbour, Z. The widow, W, sued Z,and Z brought contributionproceedings against the former ownersof his property, Mr and Mrs A.

The trial judge found Z liable to W innuisance and negligence for theaccident, and held that Mr and Mrs Ashould contribute to the extent of 40%of that liability. Yet Mr and Mrs A hadnever known of any problem with theTree at their former home, they hadsold it to Z and moved out 2 monthsbefore the accident and they wereuninsured for such a loss. How did thejudge arrive at this surprising result?

The agreed expert evidence was thatthe Tree had been dead for 2-5 yearsbefore it fell and that it should havebeen inspected annually. It constitutedan obvious hazard in a dangerous place.It was clearly dead to anyone wholooked at it: no specialist knowledgewas needed to see that. However, thejudge accepted that neither Mr and MrsA nor Z ever noticed that the Tree wasdead or a danger.

It was accepted at trial that Mr andMrs A could not be liable to anyone innuisance after they had sold and leftthe Property.

Mr and Mrs A’s liability in negligencewas held to persist notwithstanding thesale of the property and the findingthat the new owners and occupierswere liable to W for failing to remove

the Tree within a reasonable period oftaking over ownership of the Property.

As far as could be discovered, this wasthe first time a former owner of aproperty had been found liable fordamage caused by a tree which fellafter he had surrendered ownership,occupation and control of the propertyon which the tree had stood. Both Zand Mr and Mrs A were givenPermission to appeal. Three centralpoints were put forward for Mr andMrs A on the appeal.

First, one real problem for them wasthat, having sold the property, theirhome insurance cover which had beenin place during their ownership nolonger applied. They faced a £300,000claim and had no cover in place at thetime of the accident, because this wasnot a risk that most people wouldconsider that they had to insurethemselves against. Public policypointed against the imposition of aduty of care in such circumstances.

Second, their liability in negligencewas based on their ownership andoccupation of the Property on whichthe Tree stood but their ability toremove it ceased on the sale of theProperty. (Nuisance could not succeedagainst them for that very reason: seeL E Jones v Portsmouth CC)

Third, this meant that Mr and Mrs Acan only have been liable because theywere negligent during the time theylived there but no loss or damage hadbeen caused by the time they left. Allthat existed before they left was thepotentiality for a nuisance, and afterthey had gone they were powerless toremedy any danger posed by the Tree.

These were very forceful argumentsfor overturning the first instancejudgment. The appeal wascompromised on very favourableterms for Mr and Mrs A, and anauthoritative decision will have toawait another case. But in the meantime you may want to check the statusof your existing insurance cover inrelation to new occurrences atproperties you owned years ago.

A brand new tribunal, setup to make it easier forcharities to appeal againstdecisions of the sectorregulator, starts worktoday, administered bythe Tribunals Service.

The Charity Tribunal has beencreated by the Charities Act 2006and is designed to provide amore informal, cheaper andeasier independent route ofappeal against decisions of theCharity Commission.

Before today, charities inEngland and Wales wishing toappeal a legal decision of theCommission had to apply to theHigh Court. Now they can, freeof charge, bring cases before theCharity Tribunal.

Peter Handcock, Chief Executiveof the Tribunals Service, said:

“I am delighted to welcome anothertribunal to the Tribunals Servicefold, joining the 27 already in place.Our staff are looking forward tohelping those who bring cases to theCharity Tribunal to ensure theirexperiences are as positive aspossible, with cases administered ina fair, efficient and professionalmanner.”

The President of the CharityTribunal is Alison McKenna. Shesaid:

“The Charity Tribunal will providean easier, cheaper route forcharitable organisations, particularlysmaller ones, to independentlychallenge decisions of the CharityCommission. It will be uniqueamong the Tribunals Servicetribunals as it will also have thepower to consider questions ofcharity law referred to it by eitherthe Attorney General or the CharityCommission. The Attorney Generalwill also be able to intervene in anycase to argue in the interests of thegeneral public.”

On 3rd of April, representatives of allareas and levels of the legal professiongathered at the Canary Wharf offices ofClifford Chance to celebrate the 150thanniversary of the Solicitors BenevolentAssociation.

The Association was founded by theenlightened Victorian solicitor JamesAnderton in 1858 to ensure that allsolicitors and their dependants were givenfinancial help in times of need.

Throughout 2008 the SBA is celebrating150 years of supporting solicitors inEngland and Wales by holding events toraise its profile and funds.

Clifford Chance’s spectacular 30th floor inCanary Wharf was the venue for anevening reception on Thursday 3rd Aprilwhere members of the profession came tomark this momentous milestone.

later this year. “I’m passionate aboutensuring that absolutely everyone inour great profession knows who youare, what you do, and where they canfind you.”

The SBA is hosting a number ofevents throughout 2008. If you wouldlike to find out more about the 150thanniversary, how you can help theSBA or if you think may need helpyou can visit the websitewww.sba.org.uk or telephone the SBAoffices on 020 8675 6440.

Solicitors Benevolent Association1 Jaggard Way, Wandsworth Common London SW12 8SGTel. 020 8675 6440Fax. 020 8675 6441Web. www.sba.org.ukEmail. [email protected] Charity No. 208878DX 41608

lia

bil

ity

ch

arity

The Senior Partner at CliffordChance, Stuart Pophamwelcomed guests andhighlighted the importance ofan organisation such as theSBA as life becomes morestressful particularly in thelegal profession. SBAChairman, Colin Lee used theoccasion to announce theintroduction of the associationsCorporate Membership schemeand announced that CliffordChance was the first GoldCorporate Member with theirgenerous annual donation of£15,000.

Paul Marsh, Vice President ofthe Law Society said in hisspeech that with so muchcompetition – both in and outof the profession – on thehorizon we can be sure theneed to promote pastoral carefor solicitors will increase: theSBA is the flagship.

He continued by saying thatmore must be done to ensurethat all solicitors know aboutthe SBA and promised tocontinue to raise the profile ofthe association when hebecomes Law Society President

Mrs McKenna will besupported by five legalmembers and seven non-legal members. They arecurrently being recruited bythe Judicial AppointmentsCommission forappointment by the LordChancellor. The TribunalsService expects legalmembers to be in place inthe spring and the latter inthe summer.

Both the President and legalmembers have the ability toprogress and hear casesalone, though the first casesare not expected to reachan oral hearing until thesummer, once papers havebeen filed and responded toby each side.

It is anticipated that up to50 cases will be made to thetribunal each year, with oralhearings taking place inTribunals Service buildingsthroughout England andWales.

Appeals can be made onfinal decisions made by theCharity Commission fromtoday onwards andapplication forms areavailable fromwww.charity.tribunals.gov.uk where judgments will beposted in due course.

Decisions of the tribunalcan be reviewed by them or,on a point of law, appealedto the High Court.

New CharityTribunalopens forbusiness

Genevieve HardyThe Chambers of John Ross QC1 Chancery Lane, London WC2A 1LF0845 634 6666www.1chancerylane.com

Middlesex · 2016-06-19 · DARRELL WEBB Desor & Co 768 Uxbridge Road, Hayes, UB4 0RU (020 8569...

Documents

Transcript of Middlesex · 2016-06-19 · DARRELL WEBB Desor & Co 768 Uxbridge Road, Hayes, UB4 0RU (020 8569...