The Report Autumn 2015

The City of Westminster and Holborn Law Society

REPORT The

Autumn 2015

LEGAL TALK with Carla Brown, Discussing DIY Wills (cover story)

Inside this issue: › Local Issues › Professional Practice › Book Reviews Supports this edition

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Contents PUBLISHER Benham Publishing Limited 3tc House, 16 Crosby Road North, Liverpool L22 0NY 0151 236 4141 Tel: Fax: 0151 236 0440 Email: admin@benhampublishing.com Web: www.benhampublishing.com

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ADVERTISING AND FEATURES EDITOR Anna Woodhams DESIGN AND PRODUCTION MANAGER Neil Lloyd ACCOUNTS DIRECTOR Joanne Casey MEDIA NO. 1411 PUBLISHED August 2015 © Benham Publishing Ltd. LEGAL NOTICE © Benham Publishing. None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Media. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press. Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

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The City of Westminster and Holborn Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age, Disability or Sexual Orientation. DISCLAIMER All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between members and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance. Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

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COVER IMAGE

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Carla Brown, Moore Blatch LLP

COPY DEADLINES Winter

30th October 2015

Spring

30th January 2016

Summer

7th May 2016

Autumn

15th August 2016

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Members wishing to submit material please contact the Editor, Ivan Ho, before copy deadline.

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INTRODUCTION

6

COUNCIL MEMBER’S REPORT

7

LOCAL ISSUES

10 NEWS AND EVENTS

President: Hon Secretary:

Hon Treasurer:

16 SPOTLIGHT ON 18 PROFESSIONAL PRACTICE 22 CYBER SECURITY 30 CONVEYANCING 32 FILM AND THE LAW

Editor:

Administrator:

Michael Fletcher Jonathan Cornthwaite jcornthwaite@wedlakebell.com 020 7395 3122 Bruce Clarke bruce.clarke@lbmw.com 020 7222 5381 Ivan Ho ih@hunters-solicitors.co.uk 020 7412 0050 Susie Hust, 1 The Sanctuary, London SW1P 3JT admin@cwhls.org.uk 020 7960 7115

33 BOOK REVIEWS The Report

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Introduction

THE PRESIDENT’S COLUMN I FIND IT HARD TO CREDIT THAT THREE QUARTERS OF MY YEAR IN OFFICE AS PRESIDENT OF THE CITY OF WESTMINSTER & HOLBORN LAW SOCIETY HAS ALREADY PASSED. After the excitements of our annual dinner, there seems rather less for me to write about this time. It would not be right for me to report in too much detail on the Legal Charities Garden Party, now conducted firmly under the aegis of the Society, since this is very much the province of the Senior Vice President, Edward Macey-Dare, and his commentary on the proceedings appears elsewhere in this issue. For my part, I will only say that I thought it was a thoroughly enjoyable evening, and very heart-warming to see our own profession's charities supported by so many members of the profession. It could have been a bit warmer, but at least it was dry! This period has also marked the retirement from the Council of the Law Society of David Morgan, the Council Member for the Holborn area for very many years. All members of the profession, not just those practising in Holborn & Westminster, owe him a considerable debt for his many years of toil on our behalf, which he somehow managed to fit in amongst his extensive foreign travel (I hope you all enjoyed the first part of his reminiscences on this, in our last issue, as much as I did). The words "retirement" and "David Morgan" do not really seem to sit well together, and I know that he going to continue to be tremendously busy in all sorts of areas. We wish him very well. There will therefore be an election for the vacancy in the Holborn seat, and Mr Jonathan Wright of Richard Nelson LLP has put his name forward for election. If the election is contested, the successful candidate will take office on 5 October 2015. If the election is not contested, the member elected will take office on the day after the last date for nominations, that is to say, 22 August 2015. The member elected will serve for one year, as he or she will be filling a casual vacancy in a seat which would otherwise have fallen vacant in 2016. It is disappointing to record that the Tavern Tour in May had to be cancelled owing to

lack of support. Hopefully the same fate will not befall the Old Bailey Tour on 8 September, for which we already have quite a few applications, but there are still some places to fill at the time of writing. Michael Fletcher, President

I was privileged to attend the dinner given by the outgoing President of the Law Society, Mr Andrew Caplan, at Law Society's Hall in early July. An excellent dinner was accompanied by an engaging vocal trio, The Rockabellas ("Killer heels, killer curves and killer harmonies", to quote from the menu for the evening, with a "perfectly nostalgic repertoire running from the Andrews Sisters through to Duke Ellington" – younger readers can look up these luminaries of the wartime and postwar music scene on the Interweb), and I greatly enjoyed meeting numbers of members of the Law Society Council, and Presidents of other local Law Societies. The toast to the outgoing President was given by Mr Dominic Grieve, QC MP, who also made a characteristically witty and enjoyable speech on behalf of the guests. It could not have been predicted, when the dinner was arranged, that it would coincide with a tube strike which created havoc for people's homeward journey arrangements, but happily as the next day was my birthday I had elected to take a day's leave, enabling me to recover from my 2 am home arrival! I concluded my last column by reference to the then impending General Election. We now know the result, and are beginning to learn what the new Government has in store for us. There are many members of this Society, and of its Committees, who are far better qualified than I am to speak to the likely effects on Legal Aid and the administration of justice, and we look forward to hearing their contributions to the continuing debates.

DIARY September 23rd

Committee meeting to be held at Radcliffe LeBrasseur Lecture A new approach to continuing competence at Radcliffes

25th

BPP Freshers Fair

October 21st

AGM Dinner with press - tbc

November 18th

Committee Meeting Wedlake Bell

23rd

Nigel Mayhew lecture Tour of Victoria Tour - tbc

MICHAEL FLETCHER PRESIDENT

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Introduction

COUNCIL MEMBER’S REPORT JULY 2015 The classic exemplar of “chutzpah” was the fellow who murdered his parents and then asked for clemency because he was an orphan. That can now be updated to the government that increased court fees, slashed legal aid and access to justice and then complained that we have a two-tier justice system. At the Law Society’s AGM Andrew Caplen passed the President’s badge to Jonathan Smithers, ending a year in which he always ensured that access to justice remained at the very top of his agenda. At the earlier final Council meeting of 2014/15, it was not lost on Council members that the continuing erosion of access to justice had coincided with the 800th anniversary year of Magna Carta. Catherine Dixon has now been in her post as Chief Executive for long enough to make clear that she is not her predecessor Des Hudson and she has already implemented structural changes in the Society’s bureaucracy and has got moving on developing the Law Society’s Strategy, intended to set the Society’s corporate direction for the next three years and beyond, explaining its purpose, role and aims simply and in a jargon-free and engaging way, and demonstrating how we are putting our members at the heart of what we do. At the July Council meeting the Strategy was outlined to Council, as a work in progress. There are now so many acronyms in use that the bulky papers Council members (CMs) receive from the Law Society (TLS) before each meeting have to be prefaced by several index pages of them. One such acronym is CRM, Customer Relationship Management, and TLS is working on CRM improvements on how to engage with its members in a targeted and relevant way. In fact the TLS Strategy has to address a diverse audience, including not only its members but also the public, its external stakeholders, as well as its own staff. The finished form of Strategy will emphasise our role in protecting justice for everyone,

emphasising the benefits of the solicitor “brand” and in supporting, promoting and representing the profession. The Strategy will also focus on our role in influencing government and other key stakeholders to support the justice system, both for the benefit of our members and the public. It will include sections on the contribution of the legal profession to the UK economy and internationally, and on future changes within the legal profession and the external environment that will continue to generate challenges to our members. Council agreed the NFR (Net Funding Requirement) (i.e. the practising fee (PC) requirement for the whole Law Society Group, i.e. including the SRA) for 2015/16. The individual PC fee will remain unchanged at £320, as will the total raised from firms’ entity fees, although each firm’s turnover based payment, may change. Andrew Caplen updated Council on key activities in the second half of his presidential term, and the three key themes he had set out in his Presidential Plan, access to justice, the rule of law. and diversity and inclusion. He reported that there had been a first formal meeting by the President, Vice President and Chief Executive with Michael Gove, the new Lord Chancellor, at which they had discussed the key themes in the Law Society’s pre-General Election Manifesto for Justice, including access to justice, the importance of the legal sector to the UK economy, and its concerns that recent court fee increases and legal aid cuts were damaging access to justice, as well as the reputation of our legal jurisdiction abroad.

Representations to the Ministry of Justice were continuing as to the adverse effect of the civil and criminal legal aid changes, and support to our members in responding to them. Following the Council meeting, at the Annual General Meeting, the Annual Report and Accounts were formally accepted. The next council meeting will be on 22nd September but the work of TLS and of the new President and its Chief Executive and her staff will no doubt be continuing over the summer months. David Morgan, who has served as one of our Council members for the Holborn constituency, stood down at the AGM, after nearly 10 years on Council. At the time of writing his Council seat is vacant but it is hoped that an enthusiastic new applicant will be elected (or appointed) to fill his seat. Meanwhile thanks are due to David for all his work on Council, on its Boards and as our representative on CCBE (the Council of Bars & Law Societies of Europe). by JEFFREY FORREST

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Local Issues

HAS THE TOWN AND COUNTRY PLANNING ACT 1990 STOOD THE TEST OF TIME? In this year of momentous anniversaries the forthcoming 2015 Nigel Mayhew Memorial Lecture will consider this question. Clive Moys, Radcliffe Chambers. A span of twenty-five years is said to represent a generation, thus it may be appropriate to take stock. The 1990 Act is the third consolidation of planning legislation since the introduction of general and uniform planning control in this country under the 1947 Act. As the first two consolidations were in 1962 and 1971 respectively, the 1990 Act (and its sister statutes) - collectively “the planning Acts” - which came into force on 24th August 1990 have, at least, survived longer. Fundamentally the system remains the same as originally enacted under Attlee’s administration, in that it rests upon two essential foundations. First, the very broad definition of development including both “operational development” and the making of a material change in the use of land. Secondly, the rule that it is unlawful to carry out development without first obtaining planning permission which authorises it. The purpose of this article is to provide a foreword to the lecture which will consider the question from the point of view of four topics: namely, plan-making, development control, planning agreements, and enforcement. Whilst sometimes considered the Cinderella of the town and country

planning system, the enforcement of its rules has an important role to play. The recommendations of the then Robert Carnwath Q.C. contained in his expert and comprehensive report Enforcing Planning Control were, in part, given effect to by the Planning and Compensation Act 1991 which reformed the relevant parts of the 1990 Act. Throughout the history of planning control there has been continuing public and professional disquiet about both the technicality, and the unacceptable delays, inherent both in the system and in making enforcement action effective. The reasons for this are, probably, the result of a combination of factors. First, whilst many of the weaknesses have been identified and tackled, some technicalities

remain. Secondly, the relevant legislation is, in itself, technical and complicated. Thirdly, adequate resources - whether at the level of the local planning authority or at the national planning inspectorate - is a perennial concern. Fourthly, the local planning authority is exercising a discretionary public law power as an element of democratic local government. Fifthly, and perhaps controversially, the idea that one’s free right to develop and use land as a natural incident of land ownership, is sub-ordinated to the State’s power to say yea or nay in the public interest, and at not inconsiderable expense to the private land-owner, is still sometimes regarded as objectionable. Finally, the part played by lawyers. In one memorable passage in 1962 Harman L.J. said: “Instead of trying to make this thing simple, lawyers succeeded day by day in making it more difficult and less comprehensible until it reached a stage where it is very much like the state of the land which the plaintiff has brought about by his operations - an eyesore, a wilderness and a scandal.”

Has the Town and Country Planning Act 1990 stood the test of time?

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23rd November at 6pm at Bircham Dyson Bell LLP

NIGEL MAYHEW MEMORIAL LECTURE: 23rd NOV 2015

On this, the 25th anniversary of the Nigel Mayhew Memorial Lecture, Clive Moys of Radcliffe Chambers will consider this question, looking particularly at: plan making, development control, planning agreements, and the enforcement of planning control.

Please return to: Susie Hust, 1 The Sanctuary, London SW1P 3JT

Clive Moys specialises in planning, real property and local government law, including compulsory purchase

and compensation, and rating and valuation. He has been a qualified practising lawyer in London for over 25 years. First, as a solicitor in local government from 1988, and then as a barrister since 1998. His previous experience gives him a valuable in-sight into the workings of local government and the public sector generally. Additionally, he is a consultant planning barrister to Nockolds solicitors and hence undertakes advisory and drafting work, as well as advocacy, in most aspects of Planning law.

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The City of Westminster & Holborn Law Society

Please send me members' guests)

tickets at £10 (members and

I enclose a cheque in the sum of £

payable to CWHLS

Name: Name of firm/organisation: Address:

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Local Issues

THE LAW OF / IN FOREIGN PARTS - PART ll IN THE LAST ISSUE, I DESCRIBED MY EARLY TRAVELS AND MY TIME AS PRESIDENT OF THE FEDERATION OF EUROPEAN BARS (FBE). I FIRST ATTENDED A MEETING OF THE FBE IN MALAGA IN 1996 TO PRESENT A PAPER ON MULTI-DISCIPLINARY PARTNERSHIPS (MDPS), ALTERNATIVE BUSINESS STRUCTURES (ABSS) ALMOST BEING UNHEARD OF AT THE TIME. AT THAT MEETING I MET SEVERAL DUTCH LAWYERS WITH THEIR WIVES, WHO WERE TO BECOME LIFELONG FRIENDS AND IT LED TO ME BECOMING by DAVID MORGAN INVOLVED WITH THE FBE, WHICH REPRESENTS LOCAL BARS AND LAW SOCIETIES. THIS BECAME TRUE OF MANY OTHER LAWYERS WHOM I MET AT ITS BIENNIAL MEETINGS AS THE FRIENDLINESS OF ALL THOSE INVOLVED ENCOURAGED A TRULY COLLEGIATE SPIRIT. At a relatively early stage I was invited to talk about professional ethics to the Istanbul Bar. They told me I would need five days. In fact they only wanted five minutes as clearly they merely wanted a few days to entertain me, which they did in fairly lavish style. I was still an active officer in the Territorial Army (TA) and my ID card was very helpful in getting me into areas normally forbidden to foreigners. On the third day of my stay, I was asked whether there was anything special I wanted to do or see. “Yes, Gallipoli”, I replied. “But you suffered a defeat there” my hosts replied. “That’s why I want to go. We (the Brits) don’t usually lose”. True to their word, the next day they provided me with a chauffeur driven car, complete with a history professor from the University of the Bosphorus as my guide. We had lunch in an idyllic fish restaurant, the sea lapping at the edge of our table. Then to a Commonwealth War Cemetery. “And now, back to Istanbul” the professor cried. “But I have seen nothing of Gallipoli” I protested “But you lost here”. “But that’s why”. So we went to a village, where, to my astonishment, there was a Christian grave marked with a makeshift wooden cross. This turned out to be that of a British Brigadier who was appointed Governor of the area for the eight month period of the allied occupation but was sadly killed during the evacuation. During the occupation by the allies, he had acted as Governor of the civilian population whose respect he had earned by his even handed justice. As a result, the villagers decided to bury him in a Christian grave in the central square. At the end of the war, they linked arms to prevent the War Graves Commission from removing his body, telegramming his widow to explain why and to invite her to come out to Gallipoli, which she did. They undertook to tend the grave and to place fresh flowers on it every day and sure enough there were fresh flowers when I visited it.

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This was not the only foreign bar I have been asked to address. In 2001, I was invited to Uzbekistan, initially at the behest of the British Government and latterly by Open Society Justice Initiative, funded by George Soros, the American financier of Hungarian descent. The British Embassy provided an interpreter as well as a car with chauffeur. I met with several local bars and was even invited to address a meeting of the country’s 120 top prosecutors, who all appeared in uniform. The lawyers I met included several former soldiers, who had been given my CV which referred to the fact that I had served in the TA. This led to many of them leaping over tables to give me a Russian-style bear hug. The prosecutors seemed more interested to know whether I had ever met David Beckham and whether Tony Blair or the Queen really ruled Britain. On one of my visits to Tashkent, the country’s capital, my hosts told me that the Saturday afternoon was free time. Was there anything I wanted to do? I opted for a visit to the city’s railway museum. When I got there, I was welcomed by the Minister of Transport, the Head of Culture and the diminutive director of the museum, Boris Goosev. He came up to me as we were viewing the exhibits and said, sotto voce, “I see that you were a colonel in the British army. I too was a colonel”. “Different army though” I replied. “Yes, the Red Army”. “That means”, I added “that we might have been shooting at each other. Can I say how pleased I am that we both missed”. He was delighted with my reply and immediately ordered three bottles of Vodka for the two of us. After we had drunk those, the VIPs having disappeared, he asked me where I would be on Thursday. I told him that I was off to Bukhara and Samarkand the next day, but I would be back that morning. “Come to lunch”, he said. The trip to these two cities

was remarkable: Bukhara seemed still to be mainly a 7th century city of very narrow streets, hemmed in by houses - and even a mosque - constructed of mud bricks. Samarkand was more modern but the interpreter for the day, a young man who spoke perfect English, took me round the bazaar after our meeting with the local bar. “Your English is fantastic” I commented. “You talked about ‘cracking a joke’; the use of the vernacular implies that you visited the UK”. “Yes”, he replied, “I spent a year at Plymouth University. Perhaps I should admit that I am Head of Foreign Languages at Samarkand University”. I was horrified. “What are you doing wasting your time working as my interpreter?” I asked. “What you pay me for one day would take me seven months to earn” he replied. There was no answer to that. When I got back, I went to the Railway Museum but, as I had been asked, only with my chauffeur and not with my Tashkent interpreter, although I never found out why. We went into a large dining hall. Sixty women of a certain age were sat down plus one major general in full dress uniform. “Colonel” Boris, my host, my chauffeur and I were the only other men. I sat down between two and opposite three very beautiful young women. One of my neighbours, who spoke English, told me that under Uzbek law, I could take myself a wife for ten days. “But I am already married” I replied. “Doesn’t matter” came the response. “Here take my watch and give it to your wife as a present”. The Major General then called the gathering to order and announced that I had been appointed the Honorary Colonel of the Uzbek Railway Defence Force. I flew back to London the next day.

Local Issues

LAND LAW AND CONVEYANCING SUB-COMMITTEE AT OUR RECENT MEETING WE DISCUSSED THE FOLLOWING: 1. The Multi-lets Heating Regulations as set out in the Heat Network (Metering and Billing) Regulations 2014 - unexciting description and reading but of significant importance to landlords (who will have to register with the National Measurement Office by 31st December 2015) and applying to both commercial units and multi-let residential properties. The principal objective which is to charge tenants by reference to their actual consumption of heating is laudable but problems will arise where tenants are currently required to pay a fixed contractual proportion of inter alia heating costs. 2. A consultation on reform of the Electronic Communications Code was announced earlier this year. Changes include a proposal to allow operators to share and upgrade apparatus without consent, designed to preclude landowners adopting ransom positions for minor changes although for their protection these rights would be limited to e.g. changes which would have no more than a “minimal adverse impact” on the appearance of the apparatus. For landowners it is proposed that it will be harder for operators to resist a request for removal of apparatus if a landowner wished to redevelop although subject to an 18 month notice period and it is proposed to remove the double protection provided by the Code rights and the Landlord and Tenant Act 1954 security of tenure which will be welcomed by landowners and practitioners.

exert undue influence on the guarantor. PLC have published a useful Etridge letter confirming independent advice as applicable to mortgages. (ii) Arnold v Britton and others. The Supreme Court has upheld the decisions of the Court of Appeal and the High Court judge to the effect that an obligation to pay “a proportionate part” of expenses in carrying out certain insubstantial services “the yearly sum of £90”(sic) subject to annual 10% compound increases which would result in the tenants being liable in the final year of the lease term 2072/2073 to pay £1,025,004.22 was enforceable despite the accepted commercial inconsistency. Suffice it to say that in any lease where there are provisions for rent reviews or service charges subject to fixed methods of calculation or variation the need to write down a working example is paramount. by ADAM MABERLY

3. Fraud. The increased danger of fraud as applicable to property transactions particularly the bank details scam and the fake law firm problem was discussed. As to the former, firms have lost considerable sums after being persuaded to provide bank details in response to telephone calls or e-mails involving in some cases hacking into a firm’s online systems. Firms are advised to obtain technical advice to ensure an effective firewall is in place with up to date system protection software-no doubt expensive but cheap compared with the losses from client account and consequent increases in indemnity insurance cover. Internal procedures might be adopted under which bank details are supplied by clients at the outset and any subsequent amendment subject to stringent verification. As to the latter, Law Checker is available and clearly should be used but reflecting the disclaimer by the SRA (in their Warning Notice to check the Find a Solicitor websites) to the effect that fraudsters may have obtained some form of registration by fraudulent misstatement to the SRA more stringent due diligence may be necessary if dealing with an unknown firm or a supposed branch office of a well known one. 4. Two significant cases: (i) HSBC Bank plc v Brown. The decision reaffirms that lenders who fail to adhere to the ruling in RBS v Etridge do so at their peril. Etridge listed the obligations of lenders and their solicitors if a guarantor is providing security for the borrowing of a third party who might be in a position to The Report

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News & Events

EUROPEAN SUMMER FOR INTERNATIONAL COMMITTEE EUROPEAN COURT OF JUSTICE AND CWHLS The work of CWHLS International Committee has been varied this summer with meetings in Barcelona, The Hague and Luxembourg. Perhaps the visit to The Hague is the most interesting. End of the Legal Year Closing Ceremony In my new role as Vice President of the Federation of European Bar Associations, I am required to visit an increasing number of European cities. While attending the closing ceremony of The Hague Bar in the company of lawyers from all over Europe, I participated in a programme of theatre, cabaret, a legal seminar and awards ceremonies together with a gala dinner held in a former church. The legal seminar was on the power of the lawyer in relation to the Court and the Judges, the client and other lawyers. It was both an analysis of the relationships as well as a humorous take on recommendations for managing those relationships.

Human Rights and Criminal Trials While in The Hague I visited the International Criminal Tribunal for the Former Yugoslavia (ICTFY), and met up with the Deputy Registrar, a London solicitor formerly of Hodge Jones & Allen. The largest ever ICTFY trial concluded at the end of January 2015. Though there are still 8 cases in proceedings, over the next two years work will shift to enforcement of sentences. There are very moving accounts of the work of the ICTY on the tribunals’ website http://www.icty.org/ and any member interested in human rights should read of ICTFY’s work.

Client confidentiality and “listening-in” The District Court of The Hague has ruled that phone tapping of Dutch lawyers by the national security service was illegal. The Dutch Court forbids the State to tap lawyer-client communication. The right to communicate freely and unhindered with an attorney may only be infringed in exceptional circumstances and under strict safeguards. The CCBE, the Council of European national bar associations (of which The Law Society of England & Wales is a member), represented by local law firm Delissen Martens Advocaten (www.delissenmartens.nl) successfully intervened in summary proceedings initiated by lawyers of the Dutch law firm Prakken d’Oliveira and the Dutch Association of Criminal Law. They sought a prohibition on phone tapping after the Dutch national security services confirmed that conversations between a client and a lawyer of Prakken d’Oliveira had been tapped and processed. CCBE intervened and requested prohibition of tapping of all lawyers’ phones as defined in Directive 77/249/EEC. The Dutch state argued that national security may, in exceptional circumstances, require tapping of lawyers

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Pictured: Sara Chandler & Dean of The Hague Bar Association.

and their conversations with clients. The findings may even be shared with the public prosecutor. Internal guidelines of the services would ensure requirements of necessity, proportionality and subsidiarity are met. The Court decided that legal professional privilege is a fundamental right. Infringements are possible only in accordance with the law and when necessary in a democratic society. By the decision of July 1, 2015, the Dutch State was ordered to cease tapping, receiving, recording, listening to and processing any form of communication of and with lawyers. This important defence of legal professional privilege and client confidentiality is followed closely by European lawyers. In the UK, members will be interested in the recommendation of the Investigatory Powers Review by David Anderson QC, which recommended that lawyers should be granted extra protection from interceptions of communications data. The Law Society and the Bar Council prepared a Parliamentary briefing on reports into investigatory powers for a debate in Parliament on 25 June. Both organisations have welcomed David Anderson QC’s report but believe that the report does not go far enough. They believe that Legal Professional Privilege (LPP) needs proper protection through a robust legislative framework and a system of judicial oversight. This is not ‘special pleading’ on behalf of lawyers as the privilege is that of the client, not the lawyer. Just three weeks later on 17 July the High Court ruled that surveillance legislation rushed through Parliament by Ministers in a matter of days in 2014 is unlawful. In a challenge brought by MPs David Davis and Tom Watson, represented by Liberty, the Court found that sections 1 and 2 of the Data Retention and Investigatory Powers Act 2014 (DRIPA) are incompatible with the British public’s right to respect for private life and communications and to protection of personal data under Articles 7 and 8 of the EU Charter of Fundamental Rights. The landmark judgment comes exactly one year after DRIPA received Royal Assent on 17 July 2014. It was rushed through Parliament by the Coalition Government, who claimed “emergency” legislation was necessary three months after the Court of Justice of the EU ruled the existing EU Directive on data retention invalid because it was so sweeping in its interference with individual privacy rights. DRIPA allows the Home Secretary to order communications companies to retain communications data for 12 months. It catches the records of

communications of everyone in the UK, including the emails, calls, texts and web activity of MPs, journalists, lawyers, doctors and other correspondence that may be confidential or privileged. Data retained under DRIPA is then subject to an extremely lax access regime, allowing it to be acquired by hundreds of public authorities, many of which can authorise access themselves for a broad range of reasons that have nothing to do with the investigation of serious crime. Roughly half a million requests are granted each year. The unlawful sections of DRIPA will remain in force until the end of March 2016 to allow time for the Government to legislate properly. At that point they will cease to have effect.

Visiting the European Court of Justice I also visited Luxembourg in July where I met up with local lawyers, and visited the European Court of Justice, situated in Luxembourg. It was a privilege to visit the Court and to tour the building in the company of one of the Judges, who gave a short seminar on the Court’s work. CWHLS members who are interested in an organised visit should contact sarachandler.lawsociety@gmail.com as CWGHLS International Committee is planning our 2016 programme this Autumn.

FBE President’s Dinner in London 30 September 2015 CWHLS International will be hosting a dinner with the Federation of European Bar Associations (FBE) President and all members are welcome to attend. If you are interested, please contact sarachandler.lawsociety@gmail.com as soon as possible.

Meet us in Krakow, Poland Members of the CWHLS International Committee will be flying to Krakow for the FBE Congress from 8 to 11 October. David Greene (Edwin Coe Solicitors) is a speaker and the programme will address Money Laundering; Banking Law; Prosecution of Cross Border Crime; Trading Carousel; Corruption in Business Transactions; Indemnity for Lawyers practising in more than one European country. In addition delegates will have a reception on a river boat, a dinner in the Wielicza Salt Mine and a Gala Dinner/Dance in the Palac pod Baranami. Please go to www.fbe.org for registration forms.

by Professor SARA CHANDLER

News & Events

PROFESSIONAL MATTERS SUB-COMMITTEE ONCE AGAIN WE HAVE CONSIDERED VARIOUS CONSULTATIONS, REGULATIONS AND ANNOUNCEMENTS BY THE SOLICITORS REGULATION AUTHORITY (SRA). WE SUBMITTED A RESPONSE TO THE SRA’S CONSULTATION “REGULATORY REFORM PROGRAMME”. WHILST WE SUPPORTED THE MAJORITY OF THE PROPOSALS, WE HAD THREE MAIN COMMENTS: 1) We had serious reservations about its proposal to have third party managed accounts instead of solicitors’ client accounts. In our view the SRA is expecting too much from these proposals. The system of dual control would mean that the solicitor is not in full control of the funds. That is the intention. However that would make many transactions, and conveyancing transactions in particular, much more difficult. Money often has to be moved at speed and clients are not always available at the crucial moment to authorise transfers of money. The Consultation does not say how that would be managed. Indeed part of the service provided by the solicitor is to take those worries out of the client’s hands. Most conveyancing transactions work on the basis of solicitors’ undertakings (for instance to clear off all charges on completion). How can a solicitor give such an undertaking if he is not in full control of the funds? The consultation provides no explanation as to how the managers of the third party account would be expected to deal with money laundering checks and reporting requirements. There is no guarantee that this proposal will eliminate fraud. A great deal of further work needs to be done before even a pilot scheme is tried. 2) On fee sharing and referrals the Consultation states: “Understandably, many lawyers find it distasteful and unethical to use referral fees to pass clients between businesses. This has been seen as particularly the case where consumers are making a distress purchase such as in many criminal matters.” We share that view and do not think that solicitors and other providers of legal services should be authorised to indulge in such distasteful and unethical practices. The overriding consideration is the client’s best interests, and solicitors and other providers of legal services should consider what those best interests are untainted by thoughts of who will pay the best referral fee. 3) We are not in favour of the SRA’s proposed requirement that firms have in place procedures to monitor diversity and equality and to publish diversity data. Our view is that this creates more pressure on firms and individual solicitors to provide diversity information for publication and goes further than is necessary to meet the LSB’s requirements. Once again the SRA is expecting too much from this proposal. By making the requirement part of the Code of Conduct, the SRA is

turning the issue from a matter of policy to a matter of conduct for which firms may be disciplined. Publishing workforce diversity data risks breaching important duties of confidentiality. It also smacks of positive discrimination which is illegal. The SRA says that the change is simply to clarify the existing arrangements. We do not believe that the change proposed will clarify anything since it is deliberately vague. It is important that individual employees feel free to exercise their right not to respond to any or all diversity questions. Given that the existing information as to publication of diversity statistics indicates a persistently high number of non-responders and a lack of clarity in the data collected in any event, the benefit of collecting such data remains, in our view, unproven. Indeed, given the significant level of people either not responding at all or choosing “prefer not to say,” it could be suggested that the collection of diversity data is a potentially dangerous exercise because the statistics which result from it are unclear and unreliable and could lead to decisions being taken based on entirely erroneous evidence. This is inconsistent with the principle of evidence based regulation. We are currently considering the SRA consultation: “Regulation of consumer credit the SRA’s regulatory arrangements”. This follows an earlier consultation in October 2014 in which the SRA sought views on whether to withdraw from the Part 20 regime in relation to the regulation of consumer credit activities. Following representations from various bodies, including CWHLS, the SRA has consulted with the Financial Conduct Authority and produced a vastly improved set of proposals. That is to be welcomed. However there are still some issues of concern. The following quotations from the Consultation illustrate two of these concerns: 1. “We are aware that certain arrangements with regards to the payment of professional fees might include the taking of security for credit arrangements (for example, in family matters). We have taken these type of arrangements into account when drafting our proposals and tried to ensure that they will be permitted; in particular there is a restriction on credit secured on land but this only applies where the land is secured by way of a legal or equitable mortgage.” There might be circumstances where a charge over land to secure fees would be desirable as a way say of financing litigation.

2. “Therefore, it is unlikely that a firm which undertakes a regulated consumer credit activity, such as debt collecting, as a major part of their practice, would be able to satisfy the "incidental manner" condition in which case it would need to be authorised by the FCA.” Would this apply to any firm which had a debt collection department? In the last Report I mentioned the SRA Consultation: “Separate Business Rule”. It is disappointing to record that the SRA has gone against much of the responses to its consultations (including from CWHLS and the Law Society) and approved reform of the separate business rule, which has previously kept regulated firms and businesses in other professions distinct. In future regulated firms of solicitors can set up separate unregulated businesses to do non-reserved activities (which may include much of what is now regarded as solicitors’ work). That is likely to be to the detriment of clients/consumers. Although they have to be informed, there is great scope for misunderstanding. This is unlikely to be good news for the reputation of solicitors (who traditionally have been regulated in respect of all their professional activities whether or not they were reserved). Finally I refer to The Law Society’s Gazette of 19 June 2015, which reported that the LSB “has laid down the law to the Legal Ombudsman with a tough new set of performance targets…Where targets are not met, the LSB says a written explanation will be required and details of timetabled remedial action proposed… The LSB has insisted that average satisfaction rating of complainants and lawyers, regardless of the outcome of the case, must not fall below 40% in any quarter… Unit cost must not exceed £1,750 in any rolling quarter, according to LSB stipulations. But in 2013/14, the cost per case was £1,950 - the first year that this figure had dropped below £2,000. The ombudsman budgeted for a unit cost of £1,734 in 2014/15, but it is not known at this stage whether that was met…The final target… [is]… to resolve at least 60% of cases within 90 days.” We have misgivings about this. LeO above all things needs to be fair to both parties. Complainants should be properly treated, but there is a danger of assuming that this requires a finding in their favour.

by JULIAN AYLMER

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News & Events

AN INTERVIEW WITH THE SOLICITOR GENERAL: ROBERT BUCKLAND QC MP What the modern Solicitor General does as one of the two government law officers By Phillip Taylor MBE, Richmond Green Chambers. It seemed appropriate to find out a bit more about the work of the Solicitor General in the new government so I asked Robert Buckland for a profile interview to talk about his role, his hopes for the future and his experience as one of the younger members of the government. And this is the result! As the newly re-appointed Solicitor General for England and Wales, he agreed to a profile interview after the General Election in May 2015 which has resulted in a majority Conservative government for some years, and also the possibility of some dramatic changes in the political landscape following this victory now that we have five-year parliaments. So what does the current Solicitor General actually do and who is he?

The Current Solicitor-General The current Solicitor is Robert Buckland QC, the Conservative MP for Swindon South who was first elected in 2010 having won the seat from the Labour Party. He succeeded Oliver Heald MP on 15th July 2014 which is St Swithin’s Day and we did discuss the issue of whether it was raining that day or not (it wasn’t). And, as it happened, I interviewed him one year later and it also did not rain so the omens looked good. Buckland has fought a number of elections and by-elections in the past so he comes to Parliament with a substantial campaigning track-record. He is a well-known supporter of Britain’s membership of the European Union so that probably gives the reader a good indication at the outset of where he stands politically even if you read his parliamentary biography and see the range of interests mentioned. In the Commons he was elected as a member of the Justice Select Committee, and he chaired the allparty group on Autism between 2011 and 2014 amongst other matters. So it’s fair to say that he spent much of his backbench parliamentary life involved in legal matters prior to his appointment which is why he can to the Prime Minister’s attention. My interview began with Buckland’s legal work prior to the new appointment. He practised as a barrister from 1992-2010 and specialised in criminal law, being appointed as a Recorder in the Crown Court in 2009. He took silk in 2014 and is a Bencher of

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Inner Temple. As Solicitor General he does appear regularly in court as does the Attorney General although I did not explore specific cases during this profile interview. The office of Solicitor General is a not well known office although he acts as deputy to the Attorney General who has the more prominent role. In fact little is really known of the role of the two Law Officers particularly that of the Solicitor so Robert more than obliged with a bit of its history which stretches back to Tudor times! Most of us, as constitutional lawyers, will refer back to two books from our days as law students for a clue as to the role of the Law Officers: Rodney Brazier’s excellent and contemporary “Ministers of the Crown” (1997) and the even earlier, J Edwards “The Law Officers of the Crown” (1964). The reality of these two appointments is now rather different as they appear to be the family lawyers for the ‘Government family’. Brazier describes the ancient offices as “ministerial in character” setting the date of the office of Solicitor-General from 1515 on the authority of no less a legal luminary than Sir William Anson in his definitive work “The Law and Custom of the Constitution” (1907). So that date is what we agreed in during the interview although we do not have anything more specific.

Law Officers as Active Politicians For some considerable time in the modern era the two government Law Officers are active politicians, albeit ones who are charged with these special ministerial duties which rank as most fascinating givers of legal advice to such a rare client (the Cabinet). Buckland’s office can be traced back to what is seen as its first recognised holder, Sir John Port around 1514-1515. Port was involved later in the trials of Thomas More and Anne Boleyn so the post is mostly Tudor in its early development. So, at the time of writing, the Solicitor is commemorating the anniversary of the creation of the role some 500 years

ago and I wished him a very happy anniversary. What immediately becomes quite noticeable when interviewing Buckland is the approach which the Law Officers are required to adopt and have developed over the centuries. They have performed some delicate duties which have been devolved upon them: ‘tricky’ would appear to be the word. Such duties have led to the need to achieve a balance between the political ticket they have been elected on in the Commons and the legal responsibility to give the government of the day ‘the bad news’ when the occasion demands it, which can be quite frequent without going into specific cases. And this is where Robert Buckland comes in. He has that refreshing and enthusiastic approach to his work which is why David Cameron appointed him on that non-rainy St Swithin’s Day in 2014. Born in Llanelli, Robert was educated at Durham and Called to the Bar at Inner Temple at the same time as me, in 1991. Buckland’s early years in practice were predominantly on the Wales and Chester Circuit with chambers in Swansea specialising in crime and he is a product of the new Bar Vocational Course which was introduced in 1989 which indicates what many of us as practitioners recognise as a ‘turn’ away from the older teaching and training methods for the Bar. And Buckland, coming from a legal background, is an enthusiastic supporter of the circuits and

News & Events the Inns of Court seeking an expanded role for the Inns in the future as he comes from a “new” Bar which loves communicating, and enjoys debating and analysing legal argument

Human Rights Reform The big question to be asked was inevitably about human rights and where we are today. Robert disclosed that he did go on strike with colleagues over legal aid cuts some years ago. He is well aware of the specific problems which we are continuing to face at the Criminal Bar and which any member of Counsel is aware today in practice. Both he and the Attorney are also very well aware of what we face in austere Britain. They have no power to do much about cuts even if they could do so. It says much for the Solicitor that he was quite frank with me about strikes over legal aid when many would duck the issue entirely. And dealing effectively with the human rights issue really is about the ‘art of the possible’. Buckland did say in a speech on Human Rights Day last year that “my practice in South Wales was predominantly criminal legal aid, so the liberty of the individual lay at the heart of my work. I have been a human rights lawyer, like thousands of fellow barristers and solicitors, for nearly 25 years. It’s just that I didn’t think to call myself one!” I am sure that this quote sums up what virtually all lawyers feel about the issue and

it was apparent that human rights reform will run for many months before we see new proposals from the incoming government.

The Solicitor’s Job Description The Solicitor provides support for the Attorney in a number of particular areas: superintendence of the Treasury Solicitor’s department, the CPS, the Service Prosecuting Authority, HM Crown Prosecuting Service Inspectorate and the SFO. Buckland also gives support on civil litigation and advice on civil law matters and the public interest function. What will be of interest to readers is that he does appear in court regularly with the ‘hands on’ approach and the post of the Solicitor is held by… a barrister… which is so British! In fact there is a good reason for this because of the advocacy role of the Solicitor in the higher courts although any lawyer with higher rights could of course fulfil the role as I am sure all readers would probably agree.

The Development of Legal Apprenticeships The continuing development of legal apprenticeship schemes is an important policy for the law officers and continues after the Addleshaw Goddard initiative on offering higher apprenticeships. Buckland is a great communicator and has an infective enthusiasm for the Legal Trailblazer Apprenticeship scheme which is just the start of a new entry route to the profession. The Inns of Court and the circuits and maintaining the traditions of the law are clear priorities for the Solicitor.

The Rise of Public Legal Education (PLE) With the end to a ‘legal aid for all’ culture which will not return in the foreseeable future, where do we go with the vexed question of ‘litigants in person’ which is raised at so many meetings today? The Solicitor confirmed his strong support for the continuing development of the “Public Legal Education” (PLE) which has an

important role to play in modern legal proceedings if access to justice is to be made available to all. PLE is being rolled out in welfare law although it would seem another main priority for the law officers during this Parliament and they are both young experienced men tasked to see it through whilst maintaining the rule of law which began 800 years ago at Runnymede. The public are clearly well served by our current law officers and this point emerged firmly from the interview. If they do nothing else, they can act as a break on some of the more outrageous policies of the day pursued by the government which may cause legal difficulty although they remain to some extent ‘outsiders’ from the party political process because of their functions and approach which seems to me to be very healthy with a majority government. It is astonishing that criticisms still surface from the usual suspects about new appointees emerging as complete unknowns to many on appointment but that’s the political process in practice- after all, who had heard of Margaret Thatcher or John Major as they emerged from the ministerial shadows to become party leaders? But that is the beauty of British politics, even spreading to issues of the Labour Party leadership. So with the government’s law officers today who are both younger and established professionals do not have high public profiles (and probably shouldn’t have them) but they do very much represent the extremely high quality of talent now practising at the Bar which remains the envy of the world. So be it! The conclusion is that both the Attorney and the Solicitor are two safe pairs of hands starting their new terms of office after their respective “political pupillages” under the coalition government and there will be the many hard cases to handle. Both are excellent choices for this curious and demanding portfolio for the twenty-first century.

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News and Events

THE LEGAL CHARITIES GARD The future of the Legal Charities Garden Party (LCGP) was called into question in September of last year, when the then Honorary Treasurer (and former President of the Society), Arthur Weir, produced a paper entitled "Can the Garden Party Survive?" That paper focussed on the fact that ticket sales had been steadily declining in recent years and revenue had correspondingly diminished, such that there was little or no money available for distribution to the various legal charities. In short, the LCGP seemed to have lost its raison d'être, the existing committee had run out of steam and it was clear that, unless someone else took it over and came up with some fresh ideas (and quickly!), the event was doomed. As a young solicitor starting my career in Holborn, I always looked forward to the LCGP each year and invariably attended. I therefore felt strongly that someone had to make a stand, as if the LCGP was allowed to fail, it would surely never be resurrected. Accordingly, with COWHLS administrator Susie Hust, we set about trying to find a solution. Our first step was to produce a paper entitled "Saving the Garden Party", in which we suggested various innovative ways of reinvigorating the LCGP; we then had the somewhat daunting task of seeking to persuade the existing committee members that our proposals were viable, such that they would agree to pass the running of the event to COWHLS. Fortunately, we were successful in our endeavours, such that, in late January this year, the LCGP came back under the COWHLS umbrella (which was entirely fitting, given that the LCGP was originally conceived by, and run by, the Holborn Law Society from the late 1960s onwards - so it had finally come home).

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We quickly set about establishing a new LCGP committee. Thankfully, some members of the previous committee were happy to rejoin and lend their experience (for example, Tim Martin of The Solicitors' Benevolent Association and Elizabeth Rimmer of LawCare) and we were also able to attract new blood as well, in particular Debbie Jowett of CILEX and Vincent Keaveney, President of the City of London Law Society and Master of the Worshipful Company of Solicitors - whose influence led to some much needed "buyin" from the City. 5 of the original 6 charities remained on board, Lord Neuberger and Sir John Mummery generously agreed to remain our patrons and Susie cleverly secured sponsorship from Office Team and DA Solutions. In addition, wearing my other hat as Clerk of the Worshipful Company of Distillers, I was able to obtain 3 prizes for the raffle, namely: • A tasting lunch for 4 at Vintners' Hall, courtesy of the Worshipful Company of Vintners;

• A bottle of 1981 Glen Moray whisky, specially bottled for the Worshipful Company of Distillers; • A bottle of Bowmore Islay single malt whisky, courtesy of Brian Morrison (former Managing Director of Morrison Bowmore Distillers and Past Master of the Worshipful Company of Distillers). The date of Wednesday 10th June 2015 was fixed upon, once again on the North Lawns of Lincoln's Inn. The theme was Magna Carta (it being Magna Carta week) with Law Society President, Andrew Caplen, agreeing to say a few words - and also to announce the prize draw winners. Just to ring the changes, Pimms was to be the drink du jour (in order to inject a more relaxed garden party feel) El Vino of Fleet Street agreed to supply the Champagne and Wines and Susie put enhanced catering arrangements in place in order to ensure that guests did not go hungry. Flyers were then sent out, the

News and Events

EN PARTY website updated and "Corporate" packages sold to various entities who wanted a more high-profile presence. The traditional steel band was booked (as was a caricaturist, just to spice things up a little!) and we were ready to go. We then set about selling tickets by the bucket-load - and they started to sell fast! All we needed now was the weather. Luckily, the LCGP has a history of good weather and so it proved on the night (albeit that it was a touch more windy than we would ideally have liked). With the sun, came the crowds. Our President, Michael Fletcher, performed his function admirably (part introducer, part crowd controller!) as did the Law Society President, who gave us an informed treatise on Magna Carta and its broader significance, before dutifully plucking the names of 3 lucky winners out of the hat. Furthermore, plenty of alcohol was consumed (the extra salty nibbles evidently worked a treat!), such that the event yielded a very healthy surplus, most of which we hope to distribute amongst the 5 legal charities we continue to support, namely: The Solicitors' Benevolent Association; The Barristers' Benevolent Association; The CILEX Benevolent Fund; The Institute of Barristers’ Clerks' Benevolent Fund; and LawCare. All in all, a huge success - and the LCGP is safe (at least for now!). My sincere thanks to: Susie Hust (without whom the event would simply not have happened); all the LCGP sub-committee

members who so generously gave of their time; our Honorary Treasurer Bruce Clarke; our President, Michael Fletcher; the Law Society (to include the then President, Andrew Caplen and Mark Hudson, London Regional Manager); the City of London Law Society; the West London Law Society; Office Team and DA Solutions; our Corporate supporters; Michael Mitchell and the El Vino team; our caterers; the Masters and Wardens of the Worshipful Companies of Vintners, Distillers and Solicitors respectively; Brian Morrison; Cathryn Walsh; the trainees from Farrers, Collyer Bristow, Hunters and Wedlake Bell who helped on the night; and everyone else who supported the

event and/or was instrumental in making it such a memorable evening and such a huge success. Finally, please note that Lincoln's Inn is closed for refurbishment for the next 2 years, so the Garden Party next year will be held on 15th June at Gray's Inn, courtesy of the Treasurer. Please put this date in your diary now; tell your friends and colleagues; and I look forward to seeing you all there. by EDWARD MACEY-DARE SENIOR VICE-PRESIDENT

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Spotlight on... Pictured: Malcolm MacDonald

International Family Law - Malcolm MacDonald, Barrister In a recent address to the Family Law Bar Association at Cumberland Lodge in May 2015, the President of the Family Division of England and Wales, Sir James Munby, identified International Family Law as one of the areas of family law of particular importance during his Presidency with a view to broadening understanding of international children law beyond specialist solicitors and barristers. In this article I have identified some recent cases that highlight issues in international children law cases that are not only topical, but are also examples of some important issues that may confront practitioners when dealing with child abduction cases and other international children law cases.

Habitual Residence: AR v RN (Scotland) [2015] UKSC 35 The case of AR v RN involved child abduction proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Hague Convention). In this case the mother had moved to Scotland with two children (aged 3 and 1) from France with the father’s consent. The father alleged that there was an agreement that the mother should live in Scotland for 12 months during her maternity leave and then return to France. The mother’s position was that the family was to move permanently from France with the father joining the family once the family home had been sold and arrangements had been made for the father’s business to be managed. The parents were then to decide where they were going to settle in the long term. The family home was sold in August 2013. The father visited the family once a month in Scotland and the mother and children had holidayed twice for short periods with the father in France. The mother and children moved into a rental property adjacent to the maternal grandparents’ home in Scotland. The oldest child attended nursery. In November 2013 the mother discovered that the father was having an extra marital affair in France. The mother, ended the relationship with the father and issued proceedings in Scotland on 20 November 2013 for a residence order and an interdict (prohibitive order) against the father removing the children from Scotland. The father remained in France and sought the return of the children on the grounds that the mother’s initiation of proceedings in Scotland was a ‘wrongful retention’ under the 1980 Hague Convention. The first question for the Scottish Court at first instance to answer was whether the children were ‘habitually resident’ in France immediately before 20 November 2013. The court at first instance concluded that the children were habitually residence in France, primarily because nothing in the communications between the mother and father indicated a joint intention to uproot themselves and relocate permanently (my emphasis) to Scotland. This was overturned on appeal in Scotland on the grounds that the court at first instance had erred in law in treating a shared parental intention to move permanently to Scotland as an essential element in any alteration of the children’s habitual residence from France to Scotland. The Appeal Court found that the children were habitually resident in Scotland at the time of the mother’s application and identified the ‘real issue’ as whether there needed to be a longer time than four months for the children to change habitual residence. The Appeal Court found that the four months the children had spent in Scotland was sufficient when the whole circumstances of the case were taken into consideration. The father then appealed to the Supreme Court to restore the first instance decision.

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In cases of child abduction involving two states in the EU (in this case France and the UK) the 1980 Hague Convention is supplemented by Brussels IIR (Article’s 10 and 11) and Brussels IIR takes precedence over the 1980 Hague Convention. This means that the concept of ‘habitual residence’ as interpreted under Brussels IIR determines how ‘habitual residence’ is interpreted under the 1980 Hague Convention in the UK. The Supreme Court in coming to its decision referred to guidance on how ‘habitual residence’ is to be determined for the purposes of applying the 1980 Hague Convention and Brussels IIR in its previous decisions in the cases of A v A [2013] UKSC 60; and In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1; [2014] AC 1038. The guidance was developed with reference to case law from the Court of Justice of the European Union in Proceedings brought by A (Case C- 523/07) [2010] Fam 42, Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22, and C v M (Case C-376/14PPU) [2015] Fam 116. The Supreme Court found that, consistent with the case law set out above, a child’s ‘habitual residence’ corresponds to the place which reflects some degree of integration by the child in a social and family environment. Factors that are to be taken into consideration include • the duration, regularity, conditions and reasons for the stay and the family's move to that state, • the child's nationality, • the place and conditions of attendance at school, • linguistic knowledge and the family and social relationships of the child If a child is an infant then there will be a need to focus on the primary carer rather than the child. “Habitual residence’ is distinguished from ‘temporary’ residence by having a certain duration that reflects an adequate degree of permanence. The Supreme Court emphasised that it is the ‘stability’ of the residence that is important, not whether it is of ‘permanent’ character. There is no requirement that the child should have been resident in the country in question for a particular period of time, nor is it necessary that there should be an intention on the part of one or both parents to reside there permanently or indefinitely. ‘Habitual residence’ is, therefore, a question of fact requiring an evaluation of all the relevant circumstances. There are no legal ‘rules’ that apply, for example, that a parent cannot unilaterally change the habitual residence of a child. The Supreme Court found that the Scottish court at first instance was in error because it had focused on the intention of the parties and failed to consider the ‘abundant’ evidence relating to the stability of the mother’s and the children’s lives in Scotland, and their integration into their social and family environment there. The Supreme Court upheld the Scottish Appeal’s Court decision that the children were habitually resident in

Scotland and had not been wrongfully retained by the mother in Scotland. For the time being, their home was in Scotland. Their social life was there. Their family life was predominantly there. The longer time went on, the more deeply integrated they had become into their environment in Scotland. Other issues raised on appeal, and in the court below, by the mother that her application for a residence order in Scotland was not a ‘wrongful retention’ per se under the 1980 Hague Convention and whether the father had in fact consented to the children’s retention in Scotland did not need to be determined by the court. The case has wider relevance than child abduction cases under the 1980 Hague Convention because the ‘habitual residence’ of the child is the primary source of jurisdiction under Article 8 of Brussels IIR for issues of parental responsibility, not only between EU states, but also between the UK and non EU member states. [Re A (Jurisdiction: Return of Child) [2013] UKSC 60]]

A Child’s Objections to Return - Defences under Article 13 of the Hague Convention: Re M[2015] EWCA Civ 26 and Re U-B [2015] EWCA Civ 60 and and Re K (Lithuania)[2015] EWCA Civ 720 Article 13 of the 1980 Hague Convention sets out the circumstances where a requested state is not bound to order the return of a ‘wrongfully removed’ or ‘retained’ child under Article 12. In Re M, Black LJ conducted a comprehensive review of the case law to determine what was the proper approach to deciding whether a child’s objections to their return to their country of habitual residence under Article 13 should prevent a return order being made. The facts of the case were that the mother and children (D ( aged 17), J ( aged 13), T( aged 11) and I aged 6) came to England from Ireland on 12 March 2014 in circumstances that were conceded by the mother amounted to the children being wrongfully removed from Ireland. The mother alleged that she had fled Ireland due to serious domestic violence perpetrated by the father. CAFCASS interviewed the children who expressed fear about returning to Ireland and also of their father, describing traumatic experiences in the home, witnessing and being subject to domestic violence from the father. The father disputed the allegations. He issued an application for a return order under the 1980 Hague Convention in June 2014. In proceedings at first instance in the High Court an order was made for the children to return to Ireland. Black LJ found that there should be a two stage process to considering a child’s objections to return under Article 13. The first stage is a ‘gateway’ stage which is confined to a straightforward and robust examination of whether the simple terms of the Convention are satisfied in that the child ‘objects’ to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.

Spotlight on... Pictured: Sir James Munby

In respect of the ‘gateway stage’ Black LJ identified a number of issues to be considered : • the child’s age and maturity and whether they object is a matter of fact • there is no fixed age at which a child’s objections may be taken into account • the child’s views must amount to an ‘objection’ as distinct from a ‘wish’ or ‘preference’ that may fall short of an ‘objection’ • the child’s objection is not confined to an objection to the country of habitual residence but may also be to the return to a parent’s care • a child’s objections are not determinative but will be considered alongside other factors at the ‘second stage’ where the court exercises its discretion. In exercising the court’s discretion at the second stage Black LJ emphasised that the expedition required in 1980 Hague Convention cases does not permit a full investigation of welfare issues and that normally the courts deal with such cases without hearing oral evidence and without resolving contested issues of fact. The constraints of time means that there is limited scope for the filing of documentary evidence and statements from the parties responding to material as it comes to light. The judge will have to take a view about the limited evidence assisted by submissions. It would not be true to the spirit of the 1980 Hague Convention or serve the interests of the children if applications became bogged down in protracted hearings and investigations. Black LJ identified facts relevant to the exercise of the court’s discretion in this case as . • the availability and adequacy of protective measures in Ireland, • the serious emotional disturbance of J, • all the children’s feelings against a return to Ireland • the possibility of resuming a positive relationship with the father, • separation from family members, • the age of children ( noting that it may be appropriate to give more weight to the views of an older child than a younger child) • Hague Convention considerations that include the benefits that flow for children from the swift return of abducted children to the place they have been living, comity between contracting states, respect for one another’s judicial processes and the deterrence of abduction • the fact the children had always lived in Ireland. • the role the father had in the children’s lives • concerns about the mother’s ability to care for the children • the children’s unsettled life in England ( the family were living in a refuge) and

•

the Irish court’s jurisdiction in the case under Brussels IIR based on the ‘habitual residence’ of the children in Ireland

In weighing up these factors Black LJ found that there were strong reasons not to order the return of J to Ireland in light of his age, fears, strength of his objections and his emotional vulnerability. In respect of T the case was less compelling, however Black LJ found that it would not be appropriate for T to leave behind his elder brothers to make a return to which he was opposed. In respect of I Black LJ did not determine her position on the basis of I’s objections but found that it would place in her in an intolerable situation if she was to be returned to Ireland. Black LJ also set out some guidance in respect of the joinder of children to Hague Convention proceedings and on appeals. The Court of Appeal had cause to consider a child’s objection to return under Article 13 in the cases of Re UB and most recently in Re K (1980 Hague Convention) (Lithuania). Black LJ presided in both cases and applied the approach she had developed in Re M. In Re U-B a 14 year old boy objected to returning from England to his mother’s care in Spain after his summer holidays in England with his father and in a context where it was not alleged that the child would suffer harm in his mother’s care. By contrast in Re K a return order was made in respect of an 11 year old who had refused to return to her father’s care in Lithuania after summer holidays where the child had raised allegations of abuse by the father towards her and members of the maternal family.

Temporary leave to take a child outside of the jurisdiction: Re H (A child) (Temporary Leave to Remove: Turkey) (Enforcement of Child Arrangements Order) [2015] EWFC 39 (Fam). The case of Re H raises a number of issues in the context of seeking temporary leave to take a child outside the jurisdiction of England and Wales. This type of case usually takes place in the shadow of ‘child abduction’ concerns about what steps can be taken should the child not return after the temporary leave has expired. The parents in Re H were Iranian nationals. The father had arrived in the UK as a political refugee. There had been a long history of litigation, a history of domestic violence, a troubled history of contact between the father and child and Local Authority involvement with the family since 2010. The father had successfully appealed an application by the mother to take their four year old daughter to Iran. The Court of Appeal over turned a district judge’s decision to allow the mother to travel with the child to Iran [Re H [2014] EWCA Civ 989] . The Court of Appeal gave guidance in the case that where a non - Hague country was involved the case should be heard in the High Court. This was because in such cases there were no other arrangements in place for the recognition or enforcement of decisions made by the courts in this jurisdiction. The expertise of High Court judges meant that they could draw on experience to take judicial notice of international circumstances in an appropriate case or by hearing expert evidence if necessary. Following the guidance of Patten LJ in Re R (A Child) [2013] EWCA Civ 1115, the Court of Appeal stated whether by taking judicial notice or by hearing expert evidence, it is of critical importance that the court gives consideration to the magnitude of the risk if permission is given, the magnitude of the consequences if the child cannot be returned or the order is breached and whether

the risk and the consequences can be provided for by the available safeguards. The Court of Appeal found that the evidence before the lower court from the Foreign and Commonwealth Office and the lack of identified safeguards were not sufficient to meet the risk of taking the child to Iran. The case before Cobb J was a re-hearing of the mother’s application. However, the mother shortly before the commencement of the hearing and without formal application sought leave to remove the child temporarily to Turkey (a Hague Country) should her primary application fail. Cobb J heard oral evidence from an expert on Iranian law. At the conclusion of the evidence the mother conceded that the plan to travel to Iran was not sustainable given the risks identified by the expert of the Iranian authorities preventing her from returning from Iran with the child. In considering the mother’s application for temporary leave Cobb J applied the guidance of Patten LJ in Re R and granted the mother’s application on the grounds that it was in the child’s welfare, pursuant to Section 1 of the Children Act 1989 for her to have a holiday with her maternal family. Cobb J accepted there were sufficient safeguards for return of the child including that there was little evidence that the mother wished to return to Iran permanently but also rejected the father’s concerns about the dangers of the mother travelling to Iran from Turkey. The following safeguards were identified: • Turkey was signatory to the 1980 Hague Convention • Sworn undertakings were to be given by the mother to the Court: i. to provide details of travel, accommodation, flight numbers and other relevant information ii.to return AH to this jurisdiction at the conclusion of the holiday; iii. not to seek a passport for AH in Turkey, from the Embassy or consulate in Istanbul or Ankara or elsewhere; iv. to apply as soon as practicable to obtain a British passport for herself. c. The mother would swear her intention to return AH to this jurisdiction on the Koran before an Imam, if required; d. The mother to lodge her and her Iranian child’s birth certificate and a divorce certificate with her solicitors during the period of travel Cobb J noted that the father had in the past previously proposed that the mother travel to Turkey to meet her family as an alternative to traveling to Iran and that the father was a less than impressive witness. The mother’s application for temporary leave to remove the child to Turkey for a holiday was granted.

Conclusion The cases outlined above raise common issues in cases of child abduction and applications for temporary leave to remove and have broader application in matters involving international children law. I hope I have been able to demonstrate that the issues involved are not so esoteric such that they should be the sole province of specialist solicitors and barristers.

Malcolm Macdonald, Barrister, 36 Bedford Row Malcolm is a dual qualified solicitor and barrister in England and Wales and Australia. He qualified in Australia in 2004, cross qualified as a solicitor in England and Wales in 25 and was called to the Bar in 2010. He has extensive advocacy experience in complex litigation and has been reported in several leading cases.

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Professional Practice

MANAGING THE UNEXPECTED The estate administration process is full of twists and turns. Most notable are the stories that stem from the uncertain territory of intestacy cases. As the family ties are investigated and the family tree is drawn up, it is very common to uncover surprises and secrets that have been concealed over the years and remained undiscovered for generations. Unearthing these previously unknown facts is precisely the sort of discovery that could complicate the work of the administrator. When creating an accurate family tree, the experts will often draw on many research methods and sources of information. They know that relying purely on internet held records may lead to vital facts being overlooked. Instructing these professionals means that traditional forensic methods, such as conducting enquiries with known family, friends and neighbours, may be employed. These help to build a more complete picture of the family, and identify those family members entitled to inherit. When an elderly woman passed away without leaving a Will, solicitors were approached by a distant cousin of the deceased to administer the estate. She believed herself to be the closest living relative and entitled to claim on the estate. Upon investing his own time into researching the family, the solicitor believed that in addition to his client, he had identified more cousins who would be potential heirs. The case was referred to Fraser and Fraser, a leading firm of probate researchers who offer a research assessment involving the appraisal of existing family

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tree information. Their recommendation in this case was that more research should be carried out into several branches of the family as there were facts that simply did not add up. During the course of their research, they discovered facts that drastically changed the course of events. Through a combination of illegitimate birth and informal adoption, the shape of the family tree had altered dramatically; Fraser and Fraser identified and located new rightful heirs in place of those individuals previously found, who were not entitled to inherit. These twists and turns are incredibly common in research tales and this case demonstrates the value of genealogical research in ensuring that rightful heirs are found. Without the expert assistance of Fraser and Fraser, it is possible that the administering solicitor might well have distributed this estate to family members who were not entitled; in turn putting themselves at risk of potential claims. It is clear to see that referring this type of case to the experts is a must. Although it is never too late to ask for assistance, there are clear advantages in taking this step at an early stage as the support you will receive can save you and the estate time and money.

Professional Practice

DIY WILLS By Carla Brown, Partner and heads up the Wills, Tax and Trusts department at Moore Blatch LLP I’m increasingly concerned that up to one million homemade Wills will fail to deliver the explicit wishes of their owners, or worse, be totally invalid. I’m not critical of DIY services per se - they are an affordable option for reasonably savvy people with straight-forward circumstances, but I see the case for wider public education to the potential problems and pitfalls of writing something as important as a Will by themselves. It is often a false economy leading to huge issues for those loved ones left behind. An example is the Ebenezer Aregbesola case, in which the testator used Barclays' £90 Will-writing service. In 2007, Mr Aregbesola’s Will left his interest in his matrimonial home to his daughter, Tinuola. The property was jointly owned by Mr Aregbesola and his wife Tinuola's step-mother, as joint tenants. This, of course, meant that on his death the property went automatically to his wife defying the wishes spelt out in the Will.

The case, now to be heard by the High Court, underlines the problems of DIY Wills. Whilst popular for their cost, they won’t necessarily take into account enough of a testator’s specific circumstances to reflect the law or their owner's wishes accurately. We are likely to see many more examples as more of the first online Wills, written in the 1990s, start to be proved. In my experience these are common issues with DIY Wills.

The instructions and guidance notes Whether the Will is online or from a newsagent’s, there are fundamental issues with the confusing and lengthy guidance notes which ensure that the providers are covered. Assuming they’re read, they take time and patience to understand, especially by someone unaccustomed to technical issues. Online Wills can be more prescriptive than is required. Clearly, they are easiest to complete if the testator’s situation neatly fits the “norm” but, as all readers know, therein lies the problem as they can’t easily react and adapt to each individual’s circumstances.

Incorrect execution Readers will have come across a case of incorrect execution, often where there are no or only one witness, thus rendering them invalid, such as in Esterhuizen v Allied Dunbar [1998]. where the underwriters had not provided adequate instructions, or in Couser v Couser [1996] where questionable execution lead to a court hearing with obvious cost implications and delay to the administration of the estate. There are also frequently lesser issues, such failing to date the document, which can cause delay and

additional expense in obtaining affidavits of due execution from witnesses who may be difficult to track down, when trying to prove the Will.

Problems in the drafting A common issue with homemade Wills is not disposing of all the estate. People may leave their house and “cash in the bank” but forget chattels, shares, premium bonds, etc. Another is failing to provide alternative beneficiaries in the case of them predeceasing. Both lead to a whole or partial intestacy. Not appointing executors is another classic error, as is not understanding the implications of the wording they use. An example of the latter is the 2012 case Spurling v Broadhurst and others. The residue was left to “Veronica Broadhurst, Ann Foden, the living grandchildren of Veronica Broadhurst, and David Spurling in equal shares”; Veronica had 7 grandchildren, David four. Should the estate be distributed 13 ways or 4 ways with the grandchildren being seen to share one of the quarters? Was it David personally or David’s grandchildren who were intended to benefit? In the end the Judge concluded that it should be divided into 13 equal shares and that it was David’s grandchildren who should benefit.

The vulnerable testator The Law Commission is currently undertaking a review on the Will making formalities and considering ways to make it easier for the public to make them. Readers agree that professionals in this field already have concerns about vulnerable people, who may be encouraged (or worse adversely influenced) to make a Will. While it may be marginally easier to challenge a Will if a beneficiary helped prepare it, if the Will, on the

face of it, is validly executed, it is hard to enquire into the circumstances in which it was made, let alone launch a successful challenge. Of course if a regulated advisor is involved, the professional conduct requirements give a level of protection and a basis on which to make enquiries through a Larke v Nugus letter. In a recent example, I came across a codicil that looked homemade and was witnessed by a family of beneficiaries with whom the testator lived and who stood to receive considerably more than under the original Will. The children who lost out couldn’t challenge it as they weren’t close enough to know the testator’s capacity or wishes, and neither the executor nor witnesses can be compelled to respond to questions about the circumstances in which the codicil was made without some evidence.

More complex estates Other examples of DIY Wills being unsuitable, include: where the value of an estate exceeds the Nil Rate Band limits or doesn’t qualify as an Excepted Estate; where they have business or agricultural interests; or where there is a second marriage, especially with children from previous relationships where people often do not appreciate the impact of decisions they make. Whilst online services have significantly driven down the costs of many goods and services including Wills we need to remember that Will-writing is a technical area, often underestimated even by solicitors who don’t write them regularly. DIY Wills, whether online or paper, follow simple formats that can fail to accommodate complicated cases, which is why I would always recommend everyone to seek specialist legal advice.

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Professional Practice

THE PATH TO PROFITABILITY By Colin S. Taylor, Executive Director, Willis.

After a number of years of frantic merger activity within the Legal Profession, recent reports indicate a decline in the number of firms now looking to merge. The SRA's official figures indicate that there were 176 mergers last year, down from 196 the previous year. It now seems that firms are turning their attention away from mergers towards other areas to improve or maintain profitability.

Mergers/Acquisitions This is an area in which firms can benefit from clear, professional advice. It is dangerous to assume that insurers will necessarily want to insure the new entity. Insurance due diligence should be performed at an early stage. What is the real exposure to claims from past work for both firms? How will the excess structure work for claims emanating from work done prior to merger? Should there be different excesses, different aggregate limits? There is a considerable checklist to ensure the risks are identified, managed and transferred appropriately.

Cost Control and Profitability Willis’ Risk Barometer Report highlighted the amount spent by firms across the profession on risk management and insurance. Due to economies of scale, large firms typically allocate a much smaller percentage of revenues to risk management than small or mid-sized firms. On average, law firms with over 100 Partners dedicate 1.2% of total revenues to risk management. This increases to 1.9% for firms with 11-100 Partners; 3.5% for firms with 2-10 Partners; and 6.0% for Sole Practitioners. Three quarters of firms with more than 100 Partners plan to increase investment in risk management during the next 12 months.

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Risks Involved with Growth We have seen an increase in most firms' fee income over the past two years and this is predicted to continue. As fees climb, insurers will inevitably increase premiums payable. It will be important to explain where the growth has come from and that it is carefully managed and properly resourced. Explaining how any new risks are managed to insurers is an important consideration when entering renewal negotiations.

Preparing for Renewal There are many aspects involved in ensuring law firms obtain the protection their business needs at the most competitive premium. A law firm's relationship with its broker will depend on the needs of the firm. We believe that firms will have a better experience the more they engage with their brokers from day one. Good brokers can provide risk advice, take firms through their day to day claims process, provide guidance and options throughout the renewal process, provide input on strategy and review draft documents. If you have a claim that

approaches your total limit of indemnity, you'll certainly be pleased to know you have a quality insurance specialist on your side.

Professional Practice

West London Law Society

W

H

The City of Westminster & Holborn Law Society

Wednesday 23rd September 2015

FREE CPD SEMINAR In association with

A new approach to continuing competence

Julie Brannan, Director of education and Training for the Solicitors Regulation Authority (SRA) will be explaining the requirements following the end of CPD in September • Julie was previously at Oxford Brookes University, where she was Head of Knowledge Exchange and Business Development in the Faculty of Humanities and Social Sciences. • She started her professional life at Herbert Smith Freehills, qualifying as a solicitor and then becoming a partner practising in international commercial litigation. Equip yourself with the above essential information and RSVP as capacity is limited to and free for first 60 attendees: Seminar: 6:30pm - Cold Finger Buffet and Drinks after event 1 CPD point available Radcliffes - 85 Fleet Street, London, EC4Y 1AE

RSVP including your name and firm to: admin@cwhls.org.uk VISIT OUR WEBSITES AT www.westlondonls.org.uk, or www.cwhls.org.uk The West London Law Society is accredited as a CPD provider by the Solicitors Regulation Authority (CPD Reference: AJD/WLLS)

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Cyber Security

The Growing Threat of Ransomware by Robert Rutherford, CEO of QuoStar Solutions

Imagine working all week on a complex matter with rafts of documents when one day you log onto your laptop and find that all of your files have been encrypted and you don’t know the key, plus all the documents and files on the firm’s wider network have also been encrypted. You now have a screen demanding you pay up within 72 hours or face losing all your data. It sounds horrifying but many firms fall victim to this exact threat, which is the result of ransomware - a type of malware which has been rapidly growing in popularity over the last few months. As legal professionals you must take sufficient steps to protect the confidential data in your care, but in order to properly defend your firm from the threat of ransomware you must first understand what it is and how it works.

What is ransomware? Ransomware is a type of malware which prevents or limits a user’s access to their system. It’s usually carried out for monetary gain, as hackers will force victims to pay a “ransom” fee in order to regain access. There are many different types of ransomware out there, including: CryptoLocker, Crowti (also known as CryptoWall), Tescrypt or Teslacrypt, and Reveton, but essentially they all aim to do the same thing, either: • Encrypt files and folders you have access to (e.g. the contents of your documents, your photos, spreadsheets etc.) - once these files are encrypted they are deleted. Generally within the folder containing the deleted files there will a text file with instructions for payment. Some versions show a lock screen but with others you may only notice a problem once you try to access your files. • Lock the screen and demand payment - this ransomware presents a full screen image that blocks all other windows, sometimes it may display the official logo of the police, FBI or similar and claim that your computer has been locked due to illegal or malicious activity. A payment method will then be stated to provide you with the necessary key to unlock your files.

A Brief History of Ransomware Originally limited to Russia, this style of attack has proved profitable for hackers and has spread worldwide, growing more and more sophisticated. We’ve seen the 22

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rise of Reveton or Police Malware, which tracks the user’s geographical location and displays a notification page supposedly from the local law enforcement agency stating the computer has been locked due to illegal or suspicious activity. In late 2013 came a new type of ransomware, dubbed “CryptoLocker”, which encrypts files as well as locking the system to ensure users would still pay up even if the malware was deleted. It has proven to be a successful form of attack and, since it’s discovery, many cybercriminals have followed suit with their own types and variants based on CryptoLocker. Microsoft have noted Crowti to be the most prevalent ransomware of 2015 so far, but the infection rate of Tescrypt has spiked dramatically since April this year.

How Can Your Protect Yourself from Ransomware? If you’re simply relying on anti-virus to protect you from ransomware then that’s not a great business strategy. Hundreds of thousands of malicious programmes appear and disappear every day. While anti-virus protection can block some known ransomware, other variants could slip past the filters, no matter how advanced. Luckily there’s lots of other tactics you can implement: • Invest in employee training Employees are generally the weak link when it comes to security, which is why it’s important to make them aware of the impact their actions can have on the firm. If your workforce is unaware about how to spot a phishing scam or why it’s important to determine the validity of the email before clicking on a link then your company is vulnerable. Investing in security awareness training can be greatly beneficial and will help employees. • Perform regular back-ups Make it a priority to perform regular, point-of-time back-ups. An infection like CryptoLocker encrypts files on

drives that are mapped - this includes external drives like USB drives and network or cloud files which have been assigned a drive letter. Therefore it’s important to have a regular backup schedule which backs up files and data to an external devices and/or locations. Continuous back-up is ideal, or as often as you can. Only performing back-ups once a day means you could lose a day’s worth of work, expensive in terms of lost revenue. • Regularly patch or update your software Hackers often rely on people running outdated software with known vulnerabilities which they can exploit. To decrease the likelihood of ransomware infection, ensure you are regularly updating your systems. • Layer your security Anti-virus should be layered as part of a good security suite which contains intelligent anti-malware software and a software firewall. It’s important to have numerous layers of protection as hackers often send out new variants, so a triple layer of protection should help prevent an infection. At a minimum, ensure you are scanning for threats at the email gateways, firewall and end-user devices. • Control EXEs Depending on your gateway email scanner, if it has the ability to do so then you may wish to deny emails sent with “.EXE” files or emails sent with two file extensions (“*.*.EXE” files, which are executable). Advanced endpoint protection systems and operating systems can also be set to only allow known software to run. Email: robert.rutherford@quostar.com Web: www.quostar.com/legal

Cyber Security

CYBER CRIME: A TICKING TIMEBOMB 2015 IS THE YEAR THAT LAW FIRMS, BOTH LARGE AND SMALL NEED TO ADDRESS THE EVER-GROWING THREAT OF CYBER CRIME. HACKERS ARE ALREADY TARGETING LAW FIRMS, AND THIS IS NOT BY ACCIDENT. CYBER CRIMINALS ARE FULLY AWARE OF THE VALUABLE DATA AND MONIES THAT PASS THROUGH A SOLICITOR’S SYSTEM AND ARE TARGETING THEIR VULNERABILITIES. THE REALITY FOR LAW FIRMS IS THAT IT IS NOT A QUESTION OF IF IT WILL HAPPEN, BUT WHEN. The financial costs of a major cyber attack, both in terms of business continuity and reputational damage, are likely to ripple through the industry with the potential for large insurance claims resulting from high value actions against Law firms. As such, Law firms should ask themselves: what are the recent trends in cyber losses and insurance coverage? How have the significant losses transformed cyber into a board issue? What cyber cover do I have? And is there a road map for those who are insured? Ryan Senior, Executive Director, Professional Services Group, Aon added: “No business is immune to cyber crime. Whilst the industry is taking steps to pull together and share information, it still remains that few in the legal profession really fully understand the extent of the threat cyber crime presents to their business. As Law firms continue to hold increasing amounts of client sensitive information electronically on servers that are controlled by third parties, it may be a mistake to assume that the security measures in place provide an impenetrable barrier to those seeking to gain unauthorised access to your systems. The question is whether Law firms are prepared to assure their clients that they are genuinely safe custodians of their valuable information, and if the answer is no, they need to urgently put the necessary security in place.” Clients of law firms are placing more scrutiny on the companies they use and questioning what protective measures they are putting in place to protect their commercially sensitive information. As Ryan adds, “Companies are increasingly requiring their Law firms to provide not only the reassurance that their information is safe, but that they can show an

understanding of what the threats are as well as the protective measures they have put in place. This is where your insurer and your insurance broker should be working with you to demonstrate their thought leadership and guidance on the emerging exposures and coverage issues. As part of this, Law firms will need to build a security model into their business model design, that is seamlessly integrated into every device at every layer to provide that reassurance.” When discussing Cyber Liability Cover with your insurance carrier, it is important to know whether the cover they offer includes first party and third party coverage, loss or damage to digital assets, business interruption from network down time, cyber extortion, theft of money or digital assets as well as security and privacy breaches, investigation costs following a breach, customer notification costs and loss of third party data. It is also worth looking at the ‘service offering’ that comes with a cyber policy. This gives the insured a response plan in the event of a breach (24/7), including access to IT forensic security specialists, PR consultants and legal experts etc, (which, subject to the terms and conditions, should be covered under your policy). Ideally, there is only one number to call and these specialists will work with the firm to make sure they respond to incidents as soon as possible. Time is critical with all potential cyber security

breaches. It may help to mitigate any 3rd party liability if you act quickly and decisively in such circumstances. Something firms should be mindful of when reviewing cyber insurance are the exclusions in the policy wording. Policies may exclude cover for patents, trade secrets, refunds owed by the breached entity and liquidated damages, known network security vulnerabilities and unencrypted devices such as laptops, tablets and mobile phones. The reality, to all involved in the field of cyber crime, is that companies struggle to stay ahead of the game. Hackers have the advantage of growing with technology and being adept at quickly adapting to new products, infiltrating companies and being invisible. However, Law firms do have the choice to better secure their clients’ information. Knowing the challenges Law firms face and the associated risks, those who ignore the fast paced growth of cyber threat do so that their own peril. With ever-greater client, Government and regulatory expectations, now is the time to act.

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Professional Practice

Ahoy There!

If you are a forward thinking legal firm looking for new ways to network with industry peers and support your internal team development the Legal Cup could be perfect for you. Open exclusively for legal Industry professionals, each company enters a team (of between 7-10 people) who sail together on a premium sailing yacht, racing against other teams from rival legal companies! It doesn’t matter if you have never set foot on a yacht before, part of the entry package includes hire of a high-quality, fully commercially insured yacht with professional sailors on board to literally show you the ropes, so you can learn to

The Legal Cup is a unique event; combining productive networking, constructive team building, raising funds for charity, learning a new skills and having lots of fun!

sail and be an active crew member. Alternatively, if you own your own yacht you are welcome to enter it and bring your own crew. In May 2015, 19 teams took part including many Magic Circle and Silver Circle names, with the Bar Yacht Club and Allen & Overy claiming the Winner’s Trophies. Field Fisher, Linklaters and Ricoh also featured on the podium! The next chance to take part in the Legal Cup sailing regatta is on 14-15 May 2016. If you would like to find out more the Legal Cup including who took part in 2015, see the event photos and download a booking

form please visit the event website www.britanniaevents.co.uk/legal-cup You are also invited to join the Legal Cup networking drinks on Tuesday 1st September 2015 from 6.30pm in central London. It’s a great opportunity to meet some of the teams who take part, as well as the event organisers, so you can find out more about how to enter, what’s involved and how you could benefit from taking part. Full details on the Legal Cup Networking Drinks and the chance to RSVP are available here https://goo.gl/otHRyr or call the Event Manager on 02380 458900.

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Professional Practice

PENSION FLEXIBILITY 5 MONTHS ON George Osborne's decision to overhaul the money purchase pension system, came into effect on the 6th April 2015. Now, 5 months on from these changes, we review how the pension changes have affected both client and provider experiences. First a summary of what was introduced: 1.

2.

A new flexible drawdown system (FAD) designed to allow members of money purchase pension schemes to take what they liked from their pension while the remainder remained invested removing any previous limits imposed by the Provider. A new retirement system called Uncrystallised Funds Pension Lump Sum (UFPLS). UFPLS allows a member to draw a lump sum from the untouched money purchase pension fund as 25% tax free and 75% as taxable income.

3.

Increased annuity flexibility allowing payments to vary up and down subject to predetermined conditions.

4.

Changes to the treatment of death benefits, including the reduction in the rate of income tax from 55% to 45% for deaths on or after age 75 and the introduction of intergenerational transfers.

5.

New contribution rules with the introduction of a new £10,000 money purchase annual allowance and stricter provisions on recycling tax free lump sums as further pension contributions.

There was nothing in the legislation forcing providers to offer these new retirement options. Some providers limited their options to full pension encashment, annuity purchase or transfer away. Pressured by the Regulator to be the "2nd line of defence", providers have asked clients to confirm they sought advice before accessing their pension pot. The complexity of these pension changes has no doubt increased the need for good quality pensions advice. The Government's Guidance Guarantee via www.pensionwise.gov.uk allow people to access free pension information but it is emphasised this was not a replacement for financial advice. Client experiences have been mixed with many seeing Pension Wise as yet another barrier to accessing their funds. Concerns have also grown about the rise of pension scammers offering free pension reviews, legal loopholes and one off investment opportunities.

The Treasury is set to receive £360M this year from pensions access, but according to Pension Providers, many clients were unaware of the tax treatment of pension withdrawals. With only the first 25% of a pension fund available to be taken tax-free, the rest is taxed as income, those who took large withdrawals in April 2015 suffered emergency tax code deductions, leaving clients to seek rebates later via HMRC. Media speculation about the death of the annuity seems overplayed. Many clients now consider a blended approach choosing an annuity to underpin incomes together with the new FAD option, however financial advice should always be sought to ensure that what is chosen best suits a client’s individual circumstances.

This article is intended for qualified lawyers and solicitors and is not to be distributed to retail clients, it is for illustration purposes only and based on our understanding of current legislation. The value of investments can fall as well as rise and you can lose some or all of your money. Steven Vallery - Business Development Director - S4 Financial Limited Contact: 0127634932 Jonathan Lochery - Director - I.P.M. SIPP Administration Limited Contact: 08451303443

The new intergenerational transfer facility has meant pension providers have re-written their Expression of Wishes documents to ensure greater death benefit flexibility with providers able to pay income to a beneficiary in addition to the lump sum option. Once a client has accessed the new freedoms, they are capped on future pension contributions down from £40,000 to £10,000 per annum losing the ability to access carry forward of any previous unused relief. With greater freedom comes responsibility. A no cap, no limits sounds straightforward, but with unintended consequences and potential pitfalls, the need for good quality financial advice has never been greater.

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Professional Legacies Practice

LEAVING THEIR BELOVED FOUR-LEGGED FRIEND WITHOUT AN OWNER Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved four-legged friend without an owner. Thankfully, Dogs Trust, the UK’s largest dog welfare charity, offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, it also helps to ease the minds of friends and family during what is already a distressing time. Over the past 12 months, Dogs Trust has taken in a whole host of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes. One of these dogs was Suzy who arrived at Dogs Trust Loughborough aged six-years-old when their owner sadly passed away. Scottish Terrier Suzy had spent most of her life with her previous owner so she was used to her home comforts. Dogs Trust Loughborough was able provide Suzy with a home away from home while she awaited her furrytale ending. Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving home. After being cared for by Dogs Trust Loughborough, Suzy was soon rehomed and began settling in with her new family.

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Adrian Burder, Dogs Trust CEO says, “Thanks to Dogs Trust’s Canine Card Card scheme, dogs in need of a new home are given a lifeline meaning that Suzy and many dogs like her are able to get a second chance at happiness and bring joy to a new family. If you decide to become a Canine Care Card holder, we will issue you with a wallet-sized card. It acts in a similar way to an organ donor card and notifies people of your wishes for your dogs, should anything happen to you. Dogs Trust also strongly recommends that you mention the care of your dog in your Will. That way, there can be no confusion about your wishes.”

Professional Practice

One nation justice system

WINE OF THE SEASON with Conal Gregory, Master of Wine

The Law Society has already spoken with the new Justice Secretary about challenges facing the justice system, and the following extract from the Law Society President is an important message worth repeating here:

“Solicitors, who are at the heart of our justice system, support access to justice for everyone irrespective of background. Tackling waste is important but investment in the justice system, which is a key public service like the NHS and education, is fundamental if services to the public are to be maintained and improved." “We welcome the news that the Justice Secretary recognises this and is calling on HM Treasury for funding. However, recent court and employment tribunal fee increases made by government have restricted the ability of ordinary people to access the justice they deserve. Last year 600,000 people were

denied legal aid who would have been entitled to it in the past. This includes people who have had catastrophic injuries and victims of domestic violence. It is no wonder that the UK justice system is being labelled 'two tier', which is damaging our reputation as the best legal system in the world." "The legal profession is committed to pro bono and nearly half of solicitors in private practice average more than 50 hours per year. But pro bono is never a substitute for a properly funded system of legal aid, which needs skilled and experienced solicitors to provide expert legal advice to those who need it."

Law Society Special Offer... 2014 Eagles Nest Viognier Usually £23.99 as part of a mixed 12, special introductory offer £22.90 per bottle.

Chile has a reputation for making wines of real character at an affordable price. One of the country’s family-owned wineries is Viu Manent, situated in the Colchagua valley. Founded in 1935, its strengths are Cabernet Sauvignon and Malbec.

Seek out Gran Reserva Cabernet Sauvignon, made largely still from vines over half a century old. The 2011 shows a raspberry red hue, inviting cherry fruits on nose and a rich, still tannin structure on taste. Great value at £11.90 (Spirited Wines).

For fish and poultry dishes this summer, the apricot and jasmine flower aromas of Viognier with appealing acidity are just right. Try Eagles’ Nest 2014 made at the foot of Table mountain in Constantia in South Africa. The grapes are hand-picked and the wine is barrel fermented for six months. Dry and stylish, it has real class. £22.90 (Handford).

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Visit www.nfumutual.co.uk/bespoke for further information.

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Conveyancing

Speed up house buying with the personal touch Moving house or business premises can be one of the more stressful processes in a person’s lifetime. One of the frustrations many consumers and businesses face when buying a house or commercial property is the length of time it takes to complete. Often, it’s search turnaround times during the conveyancing process that can be a challenge for solicitors and their clients. Not just in terms of the reality of the delay, but also how this can be perceived by customers. Today, clients expect property transactions to move quickly, but some local authorities can take longer to return searches due to resource issues and a backlog of work. That can create tension for all those involved in the buying and selling of homes and commercial buildings. There is, however, an option that can cut turnaround times while providing the same quality of search for residential and commercial searches. Personal Search Agency (PSA), a subsidiary of SearchFlow, offers an alternative to official searches that puts the entire process in the hands of a dedicated and experienced team. It’s a bespoke service that many buyers and sellers value highly. In areas where local authorities take three weeks or longer to provide conveyancing results, a personal search can reduce this waiting time by a whole week, on average. And across some locations, including London, SearchFlow figures show buyers could shave as much as two weeks off the property transaction process by instructing a personal search. Latest research from SearchFlow’s Conveyancer Sentiment Survey suggests that many feel the problem of delays could get worse. In total, 31% of conveyancers said that they felt changes to the Local Land Charge process could further extend turnaround times. Personal searches therefore promise a viable alternative that could ease the delays associated not just with present challenges, but future changes. “There are a number of factors that impact turnaround times for official searches at local authorities, including lack of resource, dealing with crises and changes in processes,” said SearchFlow’s Search Manager Ray

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Farrell. “Solicitors whose clients are looking for a faster transaction should consider recommending a personal search solution. “Our 22-strong, directly-employed personal search team at SearchFlow is extremely experienced and they have the most up-to-date technology available to deliver fast results. They visit the relevant local authority for each and every search, rather than relying on past or banked data, and so are equally as reliable as official searches - if not better.” Delays in turnaround times for conveyancing searches impact solicitors as well as their clients. And with 44% of conveyancers expecting the market to improve by the end of 2015, Farrell says that now is the time for the industry to consolidate their operations and improve efficiency. “Efficiency drives profitability,” he said. “The faster solicitors are able to process clients, the more they’ll be able to take on and the more revenue they’ll make. Then there’s the service angle. By easing the conveyancing process for clients, solicitors will be offering better service.” PSA is staffed by a regional team of fieldbased professionals and an internal administration team. Covering every region of England and Wales, they work to secure appointments and visit local authority offices, doing all the legwork in person. More than 50,000 searches were undertaken by the team last year. But it’s not just speed that defines PSA searches. In-depth knowledge of the Local Land Charges Register, as well as the ability to drill into the detail of CON29 responses and to decipher and interpret their content means conveyancers can be sure of the accuracy of the work. When a

solicitor instructs a personal search to be undertaken, they will have a single point of contact so that there is regular communication and updates throughout the process. For the solicitor’s client, the personal search option may also resonate in a positive way and assuage some of the negativity that can define the conveyancing process. Today, buyers increasingly seek the personal, bespoke touch whatever the goods or services being bought. So why not a personal search to help deliver a competitive advantage and show the industry is on the front foot? According to the Conveyancer Sentiment Survey nearly two thirds of conveyancers have seen the biggest volume of growth from direct business. And this statistic alone could help convince more of the benefits in promoting personal search to potential clients. All PSA searches are search code compliant and provide protection of £10 million in professional indemnity cover as standard. In addition the team goes beyond regulated searches, offering an ad hoc enquiry service for other aspects including highways and planning. Call 01732 523952 if you would like to speak to SearchFlow and PSA about the services they offer.

Film and the Law simply end up buying products or services we neither want nor need. If we are unlucky we could end up in jail.

FILM and the LAW No 27 by VINCENT MCGRATH vmfilmnite@googlemail.com 020 8579 5330 07877 551442

1984 & All that... There are few novels if any, that precipitated the birth of not just one but two highly successful television series. It is not without significance that Big Brother and Room 101 are television shows given that the original book 1984 features a two way screen that not only broadcasts information to the nation but also ensures constant surveillance of its people. This ubiquitous contraption, called a TELESCREEN was invented in 1949 by the author George Orwell as he laboured over his George Orwell prescient masterpiece 1984 on the shores of a windswept Scottish isle. Born Eric Blair the great-grandson of a rich slave owner who was compensated by the British Government upon Abolition of the trade, to such a degree that the family became even richer. Thus the young Eric became the beneficiary of a private education, and developed an interest in poetry but quickly discovered, that he had nothing to say. Consequently he moved to Paris to live among the poor, changing his name to accompany this downward transition. The result Down and Out in Paris and London, not only launched his writing career, but it also became his political salvation. If an Etonian education can produce a George Orwell, then I might be a little more favourably disposed towards the current bunch of Old Etonians that constitute the majority of the cabinet. Who knows they could all be in for a Damascene moment and overnight they might start looking at the world through the eyes of the poor & the oppressed - just like their famous aluminus whose reputation will certainly eclipse theirs whether the latter manages to balance the books through austerity or not. 1984 foretells the future in a fictional country called Oceania, which is controlled by The Brotherhood Party, under the leadership of Big Brother, who kicks off each day on the TELESCREEN with two minutes of hate depicting instances of thought crime - something a bit like a forerunner of The Jeremy Kyle Show. The Thought Police detect thought crime, along with Sex Crime and Face Crime via surveillance on the TELESCREEN. Also against the Law is OLDSPEAK ( what we speak) which has been replaced by NEWSPEAK (eg Ungood in place of BAD). Two dissidents Julia and Winston fall in love and have sex. Whilst love is against the law sex is allowed as long as it to procreate for the party. That being said

any orgasm is definitely off-limits. Their sad story consists of a short period of clandestine joy followed by torture and betrayal in ROOM 101. Sometimes they threaten you with something. Something you can’t stand up to. Can’t even think about. Then you say,”don’t do it to me Do it to somebody else. Do it to…………...”

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Films to check out based upon 1984: The BBC’s 1954 legendary version which I missed because My Dad was still looking into renting a “set” from Radio Rentals. This TVplay shot in one take and fortuitously recorded on telecine was very controversial due to the violent scenes in Room 101. There were Questions in the House about subversive themes, and even more fortuitously the telecine recording is kept safe in a film vault. Incidentally, It is generally considered to be a television masterpiece. Then it’s a critical toss up between the Hollywood 1956 version and the British 1984 one (yes a 1984 version of 1984). Both of these are conveniently available in their entirety on UTube. The world is your oyster! Paul Greengrass of The Bourne franchise fame has a new version in pre-production. One wonders if he will persist with his hallmark verite style which was pioneered by Peter Watkins in his 1960’s War Game.

1984 (1956)

HOW WE CONSENT TO SURVEILLANCE. After the revelations made by the American information analyst Edward Snowden, about the operations of the US security agency (NSA) and of the UK’s equivalent (GCHQ), many have claimed that we live in a present that closely resembles the nightmare scenario of 1984. None of us would wilfully accept having our personal details controlled by state authorities. But we frequently accept online consent forms that allow companies like Facebook and Google to store enormous amounts of information about our everyday interactions, allowing them to use the data to conduct sophisticated market research and wage targeted advertising campaigns that aim at micro niches of consumers. This is the pact with devil that we have struck with the digital corporations. What we did not realise was that this arrangement with corporations would also be one with state security agencies, which want to use our data for very different reasons.We are exposed to surveillance precisely by virtue of our choices - or better by virtue of our illusory choices such as acceptance that we expressed when we press the “yes” button to accept a digital service’s terms and conditions. We have become the consenting surveilled. If we are lucky we

Edward Snowden

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Those of you who have seen the documentary CITIZEN FOUR (2014) - consisting of an interview with Ed Snowden when he was on the run in Hong Kong, will recall the gasp from the cinema audience when he declared that GCHQ was far more free and easy in the way it stored and used data it downloaded from the digital corporations than its US equivalent NSA. Now that is bound to make you sleep easy in your beds tonight. Won’t it just? It will be interesting to see what Oliver Stone makes of the story when his feature SNOWDEN comes out shortly.

As I have mentioned in previous Film & the Law articles, there is a stunning stage version that must not be missed. It is currently on at The Playhouse Theatre,on the Embankment , but it won’t Be on much longer, so get along NOW. I must say I only have one reservation concerning his peep into the future and that is he failed to make a connection between the collapse of the Legal System with the cuts in Legal Aid. That being said, he only completed the book in 1949 which was the very same year that Legal Aid was established by statute so it is perhaps asking a bit too much of him, prophetic though he was. But what a great headline the tabloids could have had. CUTS IN LEGAL AID THE CAUSE OF DYSTOPIA UK. Remember it is not just Big Brother that’s watching you. There’s also, America’s NSA, our very own GCHQ, and …… etc. Nighty Night! Sweet Dreams! REFERENCE: The Consent of the Surveilled by Dr Paulo Gerbaudo Kings College London.

FILM NITE at SOHOHOUSE stars up again on 6th October 2015.

GCHQ building

Book Reviews

365 DAILY ADVOCACY TIPS by Leslie Cuthbert BLOOMSBURY ISBN: 978 1 78043 832 0 www.bloomsburyprofessional.com

AND FOR THE LEAP YEAR TIP… BUY THIS FASCINATING BOOK ON ADVOCACY HINTS! An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers Yes, this superb little pocket book by Leslie Cuthbert entitled “365 Daily Advocacy Tips” is published by Bloomsbury Professional and gives advocates (solicitors and barristers) across all legal fields some well thoughtout, useful and effective practical tips on the advocacy skills needed for 21st century. These special skills have been honed down, developing over the years to suit the changes in style and judicial attitudes of the day. The book includes the impact of psychology - quite important as any reader and analyst of English Literature will know - to enable practitioners to be more confident in the way one advocates now, and to be of relevance to current practice in 2015 with all the mistakes of the past firmly behind us. “365 Daily Advocacy Tips” is undoubtedly a text for all advocates, from the beginner just out of law school to the experienced (or think they are experienced) practitioner. We feel having read this book that people in many walks of life, not just lawyers, can benefit from the tips whether involved in civil, criminal or other proceedings especially with the growth of litigants in person in the post ‘legal aid for all’ era. As the author says, the tips are non-jurisdiction specific and so they are relevant to advocates all over the world, including our rather brash colleagues in the North American continent! The content of the book covers a range of helpful quotes, points from psychology and of course best practice points to gain the requisite brownie points with the judge. Cuthbert has included brief snippets of useful information giving as wide a range of interesting pointers and hints as possible which will give us all a few ideas about how to tackle some of the more hideously difficult

cases. Unlike most books about advocacy, this one provides useful insight into psychology which is often overlooked, and it also explains how to break down the rules of argument and rhetoric which is a good discipline to adopt early on in your practice. One other constructive observation is the coverage of acronyms to help remember techniques (a good training device), useful quotes from history and literature which can be used in cases (but don’t bore the judge) and references to other texts both legal and non-legal which makes the book more than just a guide for the lawyer advocate. Politicians might also find it helpful! One of our contemporary expert advocates who are established as seriously good in court is Iain Morley QC. He is well quoted when he writes in favour of these tips saying: "this book is a good idea… what I like is there will be one idea every day - and only one. Your mind will not get jumbled. Think on what you read... some ideas you will like. Others may not work for you. With advocacy, this is always the way. But the point is to try things out - one day at a time." One can see from Iain’s seminal work “The Devil's Advocate” now in a third edition from Sweet and Maxwell of such sage advice for modern practice. The advocacy suggestions given throughout are rightly described as “packed with pithy, serious, amusing, and thought-provoking tips for each day of the year, from a refreshingly diverse range of sources” and of course, it is the originality of the advocate’s approach that can make a profound difference to the outcome of a case. What we liked in particular was that the tips give a fascinating insight into the principles of good advocacy whilst offering essential practical knowledge of related topics such as how people make decisions, indicators of credibility and the 'rules' of argument and rhetoric. And unlike many advocacy guides “365 Daily Advocacy Tips” gives a refreshing insight into this world of psychology and how to break down the rules of argument and rhetoric so you can succeed with your approach. It offers most suitable acronyms to help one remember techniques with useful quotes. Lengthy and studious volumes of advocacy have had their place and they don’t feature much in the ‘teaching’ of advocacy if it can, indeed be taught, but once in a while just a morsel of advice might be needed to change an entire day's work

and this is where it might be found. Cuthbert’s list is a calendar of tales and tips from the world of advocacy and it does prove an able companion for every advocate serious about continuous and incremental improvement in their knowledge, skill and practice with the added bonus of plenty of space to jot down your own ideas throughout the book. We can give you some examples taken directly from the book without spoiling it for those readers new to advocacy: when questioning always remember to KISS: “Keep it Short and Simple”; and in Cross-Examination (XX) aim to TELL the witness the answer you want rather than ASK for a response such as "you were at home, correct?" not "were you at home?"- see the subtle or not so subtle difference; and never forget that correlation does not equal causation as the author points out. Some common sense points are also explored: do not read out the entirety of your argument (in other words written down as it doesn’t work and remember your delivery!) or seek to memorize the totality of what you wish to convey (because that doesn’t work either). The author mentions that a common helpful approach is to remember the introduction and the last paragraph which is a basic structural point: "begin with the end in mind" is a useful concept to focus upon. Absolutely right! Other sensible guidance includes: how the advocate should dress (outside formal robing) and how to present oneself which can be an incredibly important factor even in 2015 after years of sloppy dressing however ones feels about this. And remember the nature of the judiciary itself as one judge has put it: "the burden of proof is on the advocate in the polyester suit!" Hm! But please do not think that this is some sort of sartorial snobbery- it isn’t, it’s merely a practicality in reality… and that is why Cuthbert’s book is an exercise in reality and how to win in 2015… getting the book is tip 366.

CIVIL COURT SERVICE 2015 General Editor: District Judge Graeme

Smith and a team of contributors Includes a CD Jordan Publishing ISBN: 978 1 78473 058 1 www.jordanpublishing.co.uk

GOOD NEWS FOR “BROWN BOOK” PRACTITIONERS: THE ‘NEW CIVIL COURT SERVICE 2015’ IS OUT NOW. An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

In this 800th anniversary year of Magna Carta, ‘what,’ asks General Editor Graeme Smith, ‘would King John and the barons have made of today’s civil justice system?’ If there’s an answer to that, it would probably be that they’d need “The Brown Book”. Well, actually, the barons would. King John was most probably illiterate. This new edition reflects the latest amendments to the CPR, which indicate its continuing state of change. There are amendments to reflect case law… to incorporate new legislation… and to incorporate new European regulations and amended European regulations. There is a new Part incorporating the remaining rules of the High and County Courts. Other amendments, the RTA Protocol, for example reflect changes in policy or practice which are most welcome.

Once again Jordan’s has published its new edition of the Civil Court Service 2015, widely known and appreciated as ‘The Brown Book.’ At the time of its publication at around Easter of this year it was regarded as the most up to date statement on main civil jurisdiction practice.

Logically organized with the needs of the practitioner in mind, the editors and contributors have introduced a new style of introduction for the Parts of the Rules most frequently referred to. This, for example, includes an overview of the Part, a list of the relevant Principal Forms, a summary of significant recent developments and more.

As it has appeared annually since 1999, this in itself is a testament to the high regard in which it is held by practitioners. Publishing annually is of course a dire necessity in view of the relentless tide of changes constantly emerging within the civil justice system.

Another change implemented in response to reader demand is that the Courts Directory, now online and therefore omitted from the previous edition, has now been reinstated in this new one, following quite sensible suggestions that practitioners do need to have this

information available in a work of reference as well as online. (Would that other institutions and/or publications would take this responsive and enlightened view.) Certainly this volume of more than 3,300 pages is an invaluable reference resource, containing tables of statutes, statutory instruments, cases and practice directions. There is a detailed index at the back and - this is handy - a Civil Procedure Rules Quick Finder on the inside back cover. Also attached to the back cover is a CD-ROM. Note too, the ‘stop press’ insert listing the latest developments on fees. We as practitioners are grateful - believe us - for this excellent service - reliable, current and unarguably speedy - provided by this new ‘Civil Court Service.’ Every practitioner needing to stay up to date with developments within the civil jurisdiction should acquire a copy.

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Book Reviews

BEYOND MAGNA CARTA A Constitution for the United Kingdom by Andrew Blick Hart Publishing Bloomsbury Publishing plc ISBN: 978 1 84946 309 6 www.hartpub.co.uk

ARE WE REALLY ‘BEYOND MAGNA CARTA’? CONSIDERING THE CASE FOR A WRITTEN UK CONSTITUTION An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers In this 800th anniversary year of 2015, there have been almost countless books written about Magna Carta and numerous celebrations to commemorate it on both sides of the Atlantic. With its fierce defiance of tyrannical and repressive rule, this now ancient document continues to inspire controversy and veneration almost in equal measure. It is fortunate, 800 years later, that the influence of Magna Carta continues to prevail, while still generating further controversy and discussion - hence the recent publication of this erudite and fascinating book from the Hart Publishing imprint of Bloomsbury. Unlike most current publications on the subject of Magna Carta, this book places it in its historical context. Taking an almost panoramic view of the past eight centuries, the author Andrew Blick of King’s College, London, considers Magna Carta in the light of the social, political and constitutional developments which have followed it. In so doing, he

constructs a detailed and carefully argued case - as the subtitle indicates - for ‘a constitution for the United Kingdom.’ In case anyone needs reminding, the UK does have a constitution - which is good. But in the view of many, its major flaw (or perpetually annoying disappointment) is that it is not written down, which is - um - not so good. The Americans have a written constitution, complete with amendments implemented from time to time, but in fact difficult to amend. The old Soviet Union certainly had a written constitution which successive dictators cynically ignored. The current Russian constitution, also written down, appears to be alarmingly vulnerable to the whims of whoever holds onto power. In the United Kingdom, an unwritten constitution has been traditionally regarded as more flexible, pragmatic and ultimately fairer for the very reason that it isn’t written down. Instruments known as ‘conventions’ do exist, however which function as mechanisms for change as social mores change. Conventions of the Constitution (which are not effectively binding in perpetuity) offer a level of flexibility which the US constitution does not apparently have. Nonetheless, Blick’s arguments in favour of a written constitution are persuasive. In Parts I and II of the book, the reader is taken on a fascinating journey through English - and subsequently UK history, focusing on those documents, (yes many of which were written) which have shaped or influenced UK

constitutional development. In Part III Blick puts forward both the positive and negative case for creating a written constitution and furthermore tackles the practicalities of its actual presentation, including writing style and preamble. The book cannot fail to reveal, however, that there has been little political will to change the status quo and develop a written constitution; otherwise somewhere, sometime in the last 800 years, or notably recently particularly and possibly under Gordon Brown - we would somehow have acquired one. Complex and convoluted arguments aside, the fundamental question regarding a written constitution for the UK pivots on whether it would be a step forward, or a step backward for this nation. The author therefore has created a valuable and meticulously researched study which should be read both by those who favour a written constitution - and those who do not. Either way, the book is a valuable contribution to the corpus of literature and analysis on UK constitutional history. The publication date is cited as at 2015.

ANTI-SOCIAL BEHAVIOUR The New Regime by Anesh Pema & Justin Crossley Jordan Publishing Also available as an eBook ISBN: 978 1 84661 947 2 www.jordanpublishing.co.uk

THE NEW REGIME ON ANTI-SOCIAL BEHAVIOUR EXPERTLY AND CLEARLY EXPLAINED IN PRACTICAL TERMS FOR 2015 An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This important new statement from Jordan Publishing Limited on the changes introduced by the Anti-social Behaviour, Crime and Policing Act 2014 is most welcome for its clarity and expertise from 2015 but will certainly not be an end to Parliamentary intervention in this difficult area of law. The book offers a detailed practical analysis on the new legal framework as we begin a fresh era on how to deal with these essentially community-based problems which were viewed by our Coalition government (2010-2015) before the new Conservative government took office in May 2015.

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The two authors, Anesh Pema and Justin Crossley, have written a highly competent and very helpful guide for all on the new legislation. Their purpose is to provide practical current advice to all those involved in dealing with anti-social behaviour, and also those who act on behalf of people accused of allegedly behaving ‘anti-socially’. Pema and Crossley explain in very clear terms the new procedures and remedies available for lawyers and lay people alike. The methods they use are designed to be as straightforward as possible for those applying for, or defending under the new regime. Of great help, too, are the discussions on the preceding legislation together with the relevant caselaw decided under the old provisions which will assist all in the interpretation of the 2014 Act. There are 13 chapters in the first hundred or so pages. The rest of the book comprises the 8 detailed appendices makes up the bulk of the book with a helpful index at the back. We found the practical know-how from these two professional experts on antsocial behaviour very helpful. The coverage of this important area of community law where both criminal and civil jurisdiction unusually coincide concentrates helpfully on the formulation of

protocols and the creation of multiagency working groups to the preparation and presentation of cases in court and handling the matter of breaches. The modified regime on antisocial behaviour is given much needed expert explanatory comment in this new work. It includes important time-saving practical materials such as draft applications, notices and orders, and all the relevant statutory provisions including all the amendments. We welcome the fact that the authors have given us an extra special service here so that we, as lawyers and advisers, have everything available as a short one-stop shop being a well thought out successor to their popular earlier work - “Anti-social behaviour: A Special Bulletin”. Thank you. The law is as stated at 15th April 2015.