russell-cooke solicitors client review 2010/11

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R USS E LL-COOKE SOLIC ITORS

Annual Review 2010/11 | 00Property & Business Review for Clients 2010/11 | 01Welcome

Welcome to our review for clients. It’s designed to give asense of the breadth and variety of our work, looking atsome of the issues that face our clients in this challengingeconomic climate.

With so much to choose from, we’ve inevitably had to leave out far more than we can include. For the full picturewe hope you will visit our recently relaunched website,www.russell-cooke.co.uk, which has a new look and moreuser-friendly features, searchable content and briefingson specialist areas of the law. Do take a look – and if youhave any comments, we’d be interested to hear them.

John Gould | Senior Partner

Contents Property and business07 Chasing a dream: start-ups in a recession08 In person: Angela Dennis09 Liberty’s secrets: why not to skip the on-site inspection10 Shopping channel: invigorating Cardiff10 In person: Lee Ranford

Personal13 For love or money: the future of pre-nups 15 Gambling on justice: three cases16 Judgement calls: when a solicitor becomes a judge17 In person: Alison Regan18 In person: Michael Parkinson

Regulation21 Eye of the storm: handling high-profile cases 23 In person: Matt Bosworth

Charity27 High anxiety: the worry of being a trustee28 In person: Tamsin Priddle29 No hiding place: managing conflicts of duty

About us02 Russell-Cooke online04 Facts and figures30 Training solicitors32 Sponsorship: Rebecca Romero

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02 | Review for Clients 2010/11 Online

Fast, functional and user-friendlySeven ways to access expertise online at www.russell-cooke.co.uk

Check out the specialist team in your area of interest,

including mentions in legaldirectories, recent cases and

experience, professionalaccreditations, client feedback

and testimonials

Explore alternative waysof resolving disputes

using experienced,highly-trained mediators

Subscribe to thee-briefings produced by specialist teams and find out aboutforthcoming events

67

54Review for Clients 2010/11 | 03Online

Track our constantlyupdated, audited clientsatisfaction ratings Find out the basis

for fee-chargingin a specific area of law

Access our lawyers’ contact detailsand biographical info

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04 | Review for Clients 2010/11 Facts & figures

wills, probate, tax & trusts 25%

conveyancing 17%

crime 8%

clinical negligence / pi 17%

family 17%

French law & property 5%

What we do for companies and organisations

What we do for individuals

charities 20%

regulation 21%

commercial property 30%

dispute resolution 18%

corporate & employment 11%

children law 5%

employment 6%

Who we are There are now 277 of us:

Solicitors 62

Other fee earners 27

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Secretarial staff 83

Support staff 45

Partners 46

Review for Clients 2010/11 | 05Property & Business

property & businessour specialist teams providecommercial property expertise,business services, dispute resolutionand employment law advice. Russell-Cooke is recommended“without hesitation”, says legal guide Chambers: “it is efficient,friendly, extremely client-focusedand staffed with terrifically dedicated lawyers.”

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Enduring dreamsWhat’s happened to start-ups during therecession? Our experience suggests thataspiring entrepreneurs are a surprisinglyresilient and enterprising bunch

The worst economic crisis since thethirties may not seem an obvious time tostart a business. But optimism is onecharacteristic of the true entrepreneur,and Guy Wilmot, who advises newbusinesses as part of his widercommercial and corporate brief, is stillseeing plenty of would-be businesspeople with big ideas for the future.

He thinks that the growing insecurity ofcorporate life might be one reason.“People say to themselves, ‘my job isn’tthat safe anymore, so I might as well dowhat I always dreamed of doing.’”

Also a factor is the continued migrationof business online, which has radicallyreduced start-up costs. “You can start upwith a few thousand pounds – the costof a pretty decent website design. With abricks-and-mortar lease you might havea ten-year commitment at least, whichcan be scary for a new business.”

Guy’s start-up clients come from avariety of directions: some are referredby accountants or other professionals;others arrive via the firm’s website orhave friends or contacts who are clientsof the firm.

The best time to consult a lawyer isearly on, he says, “when you’ve got yourbusiness idea firmly in your head, butbefore you’ve got your finance, started toenter into any contractual arrangementsor, if you’re a partnership, agreed termswith each other.”

What does the legal side of setting upa business cost? “If your idea is relativelysimple – a straightforward e-commercewebsite, for example – we can give you apretty good idea of costs at the outset.” A more elaborate business idea – such

as the hotel holiday letting concept theteam worked on recently – will involve a more complex legal structure, so costswill be higher.

When cash is tight, the Russell-Cooketeam will work out with the client whatthe top priorities are and what can be puton the back burner. “Often a businesswould love to have this or that – say, IPprotection – but just can’t afford it’,” saysGuy. “In those circumstances we try togive them a second choice which offersmost of what they need.”

Clients these days tend to be aware ofthe value of their intellectual propertyand anxious to protect it. Here the growthof the internet has created problems aswell as opportunities. Although websitesare global, intellectual property isregistered, and contracts enforced, at anational level. Operating in internationalmarkets, as many UK-based businessesnow do, it’s easy to breach someone’strademark by mistake, or to have yourown trademark breached without yourknowledge or consent.

In practice, every new business isdifferent and presents a unique set ofchallenges. Russell-Cooke clientscookery writer Laura Santtini and luxurychocolatier William Curley (see nextpage) are both examples of early-stagebusinesses with a compellingproposition and profile, requiring carefullegal advice to reach their full potential.

08 | Review for Clients 2010/11 Property & Business

What’s the most challenging caseyou’ve undertaken recently?I acted for a number of tenants takingunits in the new Westfield Londonshopping centre development. Westfieldhas a very specific approach to shoppingcentres and the terms of leases. We hadto work with that approach whileprotecting the retail tenants’ position – afine commercial and legal balancing act.What are the main things happeningin your area of work at the moment?The economic climate means landlordshave to work hard to protect their income streams. They’re facingincreased pressure to accept rentmonthly in advance, rather than quarterlyin advance. Tenants are scrutinisingservice charge provisions more closely.We’ve also seen an increase in emptyunits and pre-pack sales of leases dueto tenant insolvency.

Another development is that we’refinding more “green” leases withenvironmentally-friendly clauses.What's your most memorableexperience as a lawyer? In one of my first jobs as a newly-qualified solicitor I was calledunexpectedly to attend a meeting withthe client to run through the issues on

properties in a multi-million poundportfolio – before we’d received a fullinformation pack! This was a little hair-raising, although dealing with itsuccessfully boosted my confidence.And your worst experience? As a litigation trainee, I acted for a mobilephone company against a customer whowas suing them for infringing his humanrights by stopping his mobile phonecontract. He hadn’t paid his bills formonths. Although I was successful ingetting the claim struck out, the litigant(who was representing himself) tookgreat offence at losing and startedphysically threatening first the judge and then me.What aspect of your work do you enjoy the most? I really enjoy the transactional nature of commercial property. You’re closelyinvolved with the commercial side ofyour client’s business, working toachieve something positive and tangible– such as acquiring a new site or sellinga property for development.

A “writer who cooks” andself-styled geneticequivalent of a Molotovcocktail, with Italian,Persian and Sephardicroots, Laura Santtini isthe author of theacclaimed Easy TastyItalian (as well as the Ask Mrs Santtini columnin Waitrose FoodIllustrated magazine).When she launched herown scratch cooking

range, Easy Tasty Magic,in 2009, Guy Wilmot andcolleagues advised heron the legal practicalitiesof being an entrepreneuron her own in a complexarea, with manufacturingand distribution handledexternally on licence.“We registered the nameas a trademark in variousjurisdictions around theworld, then entered intolicence agreements with

manufacturers anddistributors so she wasprotected from all anglesin relation to her recipesand copyrights and other bits of intellectualproperty.” Discovermore about LauraSanttini on her websitewww.laurasanttini.com

CASENOTESPROTECTING IP IN A COMPLEX ENVIRONMENT

IN PERSONANGELA DENNISAngela Dennis is a partner in the CommercialProperty group, advising landlords, tenants,developers and lenders. Her particular expertiseis in the retail sector. She’s a member of theBritish Council of Shopping Centres

William Curley would be odds-on favourite towin a Nobel prize forchocolate, if there weresuch a thing. TheBelgravia and Richmond-based chef won theAcademy of Chocolate’sprestigious Best BritishChocolatier award threeyears running. Chef andrestaurateur PierreKoffman (ex-La TanteClaire) said of William: “He is a fantastic pastrychef and chocolatier –perfect.” Russell-Cooke’s property andcommercial teamsadvised William and hiswife Suzue (who, like herhusband, is an acclaimedpatissier) on variousaspects of running thebusiness, includingproperty and licensing.www.williamcurley.co.uk

CASENOTESGORGEOUSCONFECTIONS


When time is really short in acommercial property deal, it may seemtempting to skip the on-site inspection.

Not advisable, says Arnold Isaacson.He and colleagues acted for the buyer in the £41.5 million sale andleaseback of upmarket departmentstore Liberty’s iconic London site.Speed was of the essence, and theparties exchanged within ten days.

A day after receiving instructions theteam was exploring the quirky Tudor-style premises – and discovering morethan it bargained for. “There are vaults,

underground tunnels and other bits andpieces, including two bridges, whicharen’t in the title and which they don’town, but have exclusive use of underlicence.” The reason is historic:although the Highway Authority grantedLiberty a licence to build over, andunder, the highway in the 1920s, itretains ownership of bridges andcertain underground areas to this day.

The bridges were used by shoppersuntil Liberty sold the Regent Streetfront of the store a few years ago; theycan still be seen from Kingly Street.

CASENOTESBRIDGES, TUNNELS AND SECRET VAULTS

10 | Review for Clients 2010/11 Property & Business

STATE OF UNCERTAINTYDawn Alderson (left), who leads the French law andproperty team, acted as expert witness in the case ofMartin v The Secretary of State for Work and Pensions.The case is an interesting example of the dangers oftrying to hold foreign assets in a trust, as this may notbe governed by the law of England and Wales. Thecourt decided that the value of a property held by asocial security recipient living in France could beincluded in his capital, thus depriving him of socialsecurity benefit, even though the property waspurportedly held on trust for a third party. The reasonwas that in this case the court applied French law.

What’s your most recent challenge? Dealing with statutory demands (a precursor to a bankruptcy petition)presented to my client by a leadingbank. It claimed payment of £4 millionunder personal guarantees my clienthad given for the (undisputed)borrowings of his company.

At first glance our client’s position didnot look encouraging. However, wefound a defence which was ultimatelysuccessful after a contested hearing.Not only did the bank lose, it also had to pay my client’s costs.

I’ve also recently dealt with a claim forjudicial review (another area of my work),acting for residents living near to theRoyal Albert Hall.

They successfully challenged adecision of Westminster City Council, the licensing authority, to extend theAlbert Hall’s licence to include boxingand wrestling.

More on our dual-qualifiedFrench law team atwww.russell-cooke.co.uk.The team’s dedicatedFrench property website is at www.frenchpropertylaw.co.uk

IN PERSONLEE RANFORDLee Ranford is a member of theLitigation team, with a variedcaseload including insolvency,judicial review and insurance-related disputes. He is a qualifiedinsolvency practitioner

What are the main developments in your area of work? One statutory and one practical.

Amended Insolvency Rules(introduced from 6 April 2010) are anattempt to modernise practice andprocedure – for example by allowinggreater use of electronic documents,communications and IT generally.

Increased use of the pre-packprocedure has been subject to a lot of(mostly negative) press comment. A pre-pack refers to an agreement (inanticipation of a pending administrationof a company) to sell all or part of thatcompany’s assets, with the Administratorcompleting that sale immediately on orafter his appointment, when thecompany goes into administration.Critics say that the process allows thecompany to cease trading and start upagain, free of the old company’s debts. What’s your most memorableexperience as a lawyer? Some years ago acting for a member ofthe MCC in disciplinary proceedingsagainst him for alleged misconduct at aTest match at Lord’s. The hearing was inthe Long Room at Lord’s in front of thefull committee, which included Sir JohnMajor and Mike Brearley.And your worst experience?In my early years as a lawyer I dealt witha number of Crown Court cases. Myclients were facing charges of armedrobbery, having allegedly attempted tohold up a post office van. Their defencewas that disguises and replica gunswere in their car because they hadrecently been to a fancy dress party. Thejury did not even need to retire to arriveat its verdict of guilty!

CASENOTESAngela Dennis and Jodi Chapman of theCommercial Propertyteam acted forSportsdirect in theacquisition of a unit inthe new St David’s 2shopping centre. The 967,500 sq ftdevelopment, whichincluded a new libraryand apartment complex,has turned Cardiff intoone of the UK’s top fiveshopping destinations,with a projected annualfootfall of 33 million.Many of the retailerstaking space in the£675m extension arenew to Wales, includingJohn Lewis and Apple.

Although a third offloorspace had not beenlet when doors openedto the public in autumn2009, the gamble ofgoing ahead during therecession seemed to payoff. Centre directorSteven Madeley, quotedon Walesonline, said ithad been a brave moveto hold out for high-quality tenants. JohnLewis said that footfallduring the first sixmonths had outstrippedexpectations.

Review for Clients 2010/11 | 11Personal

personalour highly-rated teams offer a fullrange of services for individuals, fromcriminal representation, personalinjury and property conveyancing toestate planning and family law. “We would expect to pay much morefor the quality of service you get,”says Chambers of the family team

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Terms of endearment?Objectors to pre-nups say they undermine the institution of marriage. So it is ironic that the issue of enforceability puts some people off marrying altogether

When the time is right to make arelationship permanent, most of us knowexactly what to do: order the champagneand start planning the honeymoon. Thelegal and financial side of things comesbottom of the to-do list – if it figures at all.Which is odd, because thanks togenerous media coverage of somehighly acrimonious battles over moneyand property, we surely can’t be unawareof the pitfalls of a broken relationship.

High-profile cases such as Miller vMiller and Mills v McCartney (see leftand next page) have turned manypeople’s thoughts to pre-nuptialagreements. Traditionally not recognizedby English law, they are becomingincreasingly common as the legalsystem struggles to adapt to the realityof modern relationships.

Family lawyer and mediator JamesCarroll specialises in advising high-net-worth individuals and is a member of theLaw Society’s Family Law Committee. “If someone asks ‘is a pre-nup binding?’the answer is no, currently”, he says.“They do, however, carry considerable –and sometimes decisive – weight.”

In the landmark case of Radmacher vGranatino (see next page) the AppealCourt confirmed that judges could takepre-nuptial agreements into account,even though they were not enforceablein English law. The case is beingappealed to the Supreme Court (the new version of the House of Lords).Commentators predict that the highestcourt in the land will support pre-nuptialagreements – and will perhaps, it isthought, also call on Parliament to reformour divorce laws.

Melissa Miller walkedaway from her three-year, childless marriageto a City investment fundmanager with £5m andassets including a housein Chelsea. A key focusof the House of Lordsruling was the hugeincrease in Mr Miller’swealth during themarriage, largely due tothe rise in value of hisshares in New Star, afund managementcompany he helped toestablish.

One of the more high-mindedobjections to pre-nups is that byproviding for the possible break-up of arelationship, they undermine theinstitution of marriage. Ironically, some ofJames’s clients decide not to marry at all,because there is no way to protect theirpersonal wealth. “It can sound miserly;actually it’s not. Suppose there’sinherited wealth – a family home, forexample? Suppose your parents havegiven you money to start you off in life?Is it illegitimate to want to protect that?”

As things stand, he says, there’s onlyone answer for a client contemplatingmarriage and seeking absolute financialcertainty. “The advice is always veryblack and white. For the financiallystronger party: if you want to protect yourfinances, don’t marry. For the financiallyweaker party: don’t sign a pre-nup.” Thisblack and white advice, however, oftengets blurred when it comes into contactwith people’s strong desire both to marryand, as far as possible, protect theirpersonal wealth.

The uncertainty around the legal statusof pre-nups reflects a wider issue infamily law: the very different legaltreatment of marriage or civil partnershipon the one hand, and cohabitation-typerelationships on the other.

The treatment of marriage and civilpartnership is forward-looking. Thecourts look to the future: what’sappropriate, what the parties need tomeet their needs, whether there shouldbe an element of sharing and so on. Sowhat was previously agreed between theparties (even in a written pre-nuptialagreement) cannot be decisive. “You

CASENOTESMILLER V MILLER

14 | Review for Clients 2010/11 Personal

can’t marry and say conclusively ‘I’mworth ten million and if we split up you’renot having any of it’.”

The Law Commission is currentlyexamining whether pre-nups should belegally enforceable in England andWales, although legislation would needpolitical support and may not be given ahigh priority by the new government.

“In the meantime you can enter into apre-nuptial agreement as a statement ofintention, sometimes a very weightystatement of intention. And sometimesthe outcome will be exactly what youwant it to be, if the circumstances areright. But if the circumstances are wrongthe courts will depart from it.”

The treatment of cohabitingrelationships is quite different.Technically, the law doesn’t recognise“living together”; you’re either married orin a civil partnership, or you’re single.“The law has to deal with otherrelationships, because people are inthem all the time, but we don’t do that viafamily law but through property law. Andthere the issue is not what is fair, buttrying to work out what the agreementwas; it’s all backward-looking.”

The bad news is that the law in relationto cohabitees who haven’t legallyformalised their money or propertymatters is, as James puts it, “in dire needof reform”. Some of the worst family lawhorror stories relate to cohabiting people.“One of my clients had been in a twenty-two year relationship, three children, hadnever put anything in financially. Whatwas she legally entitled to? Nothing.”Such unfortunates are forced to relyeither on the co-operation of the otherparty or the skills of their lawyers. (In thiscase, after months of wrangling, James’sclient managed to retain 50 per cent ofthe property at issue, without much legalbasis for doing so).

The good news if you are cohabiting(or in any other kind of non-maritalrelationship) is that the law allows you todraw up a binding contract: a declarationof trust, as lawyers call it. You don’t haveto be two people in a romanticrelationship; you could be friends buyinga flat together, parents buying for a sonor daughter, or an adult giving yourmother the money to buy her councilproperty. “Sometimes the parents say toa child, ‘we’ll give you the money for a

deposit and you and your girlfriend canmove in together, but we don’t want yousplitting up in six months’ time and herwalking away with half of it’.”

One point applies to all live-inrelationships: it is much better to takelegal advice at the beginning than wheneverything’s gone pear-shaped. Which isall very well, but when exactly should youthink of seeing a lawyer? When you startmixing money or living together, Jamestells people in his regular seminars toCity institutions. “And if you are gay orlesbian, don’t think it doesn’t apply toyou. The issues are exactly the same.”

“Probably half of the matters I deal withcould be resolved entirely, and the restgreatly assisted, had people consideredthe tough but important issues at theoutset. This can save a friendship,months of legal wrangling and tens ofthousands in legal fees.”

James emphatically rejects thesuggestion that taking legal advicemight be a huge turn-off. “People thinkabout the wedding, the dress and so on.They don’t think in terms of what itmeans financially and legally. What’swrong with saying, ‘I inherited this housefrom my parents; if we split I’d like tokeep the house, because it’s been in thefamily for generations’?”

And at the end of a relationship, there’snothing less romantic than the ruinationof a friendship – or being unable toparent successfully because of monthsspent in avoidable litigation.

The couple signed a pre-nup under German lawagreeing that neitherwould make a claimagainst the other if theirmarriage broke up. Whenthey divorced in the UK,the ex-husband, now astudent, claimedmaintenance from hisex-wife, a wealthyheiress with anestimated fortune of£100 million. The case isawaiting a finaldetermination in theSupreme Court.

CASENOTESRADMACHER VGRANATINO

CASENOTESTHE RELUCTANT BENEFICIARYAlison Regan (see page 17) acted in the celebratedcase of Re P, which centred on an “entail” – a methodby which the gentry kept land in the family, with eachsuccessive grantee taking a life interest in the estate.Today it is possible for the grantee to “bar the entail”and take possession of the estate, at the expense ofsuccessive generations. In this case the beneficiaryrefused to do so and the estate fell into disrepair.Referring to the historic entail, Mr Justice Lawsonquoted Jane Austen’s Pride and Prejudice: “Jane andElizabeth tried to explain to her the nature of an entail.They had often attempted to do it before, but it was asubject on which Mrs Bennet was beyond the reach ofreason.” The decision was the first judgement inrelation to the execution of a statutory will under theMental Capacity Act 2005.

CASENOTESMILLS VMCCARTNEY

Judgment in thecelebrity divorce casesaw Sir Paul McCartneypay his wife of four years,Heather Mills, £24.3million in cash, propertyand assets, as well asmaking provision for theeducation andmaintenance of thecouple’s young daughter.

2 Mr B v Arriva LondonMr B, a designer, had moved to London from Italy withhis wife and two-year-old son. He was with friends inthe West End when he was injured boarding a bus.

The events leading to the accident were a matter ofdispute, but the result was that Mr B was trappedbetween the bus doors as they closed and lost hisbalance, falling backwards onto the road and hittinghis head. He sustained catastrophic brain injuries andwas in a coma for five months. His family was in adesperate position, with no income and no knowledgeof the UK’s legal or social security system.

Eventually Mrs B pursued a legal case on behalf ofher husband, but there were major problems. When he regained consciousness Mr B was unable toremember anything about the accident, and by thenhis friends had returned to Italy. The driver of the bussaid that Mr B had deliberately jumped from the busand an independent witness agreed with him. CCTVfootage could have shed light on what had happened,but it had been destroyed by the bus company.

As the family had no income the case was run on a “no win no fee” basis, with Russell-Cooke funding all expenses.

Mr B won his case: the judge decided that Arriva was100 per cent to blame for his injuries. Arriva wasrefused leave to appeal. The bus company eventuallyagreed to pay a lump sum settlement of £1.3 millionand an annual payment of £31,500 for life, reflectingthe fact that Mr B will never work again and will needlife-long care.


More about the Personal Injury and Clinical Negligence team and theircases at www.russell-cooke.co.uk

1 G v BMr G suffered seriousspinal injuries when afriend, Mr B, jumped onhis back as a joke. He’dhad a successful careerin audio design andproduction, but is nowunable to work, hasmultiple impairmentsand requires daily care.

Although the defendantMr B’s solicitors admittedliability on his behalf, Mr B would not have had the money to paycompensation.Fortunately Terry Lee, ofthe Russell-Cooke team,had the experience toenquire whether he hadpersonal insurance, andit turned out that he had.

Russell-Cooke actedfor Mr G under a “no win,no fee” agreement andcarried the costs of legalexpenses. The teamissued proceedings, buta settlement wasreached before trial: £1.8 million damages,including compensationfor Mr G’s pain andsuffering and the cost ofhis lifelong care.

3 Mrs G v NewhamUniversity Hospital NHS TrustLeft unattended for most of her labour, Mrs Gsustained horrific injuriesduring the rapid anduncontrolled birth of hersecond child. A fourth-degree tear left herpermanently incontinent,depressed and virtuallyhousebound.

The hospital arguedthat Mrs G’s injuries hadbeen sustained as part ofthe natural process ofbirth and that they werenot the result of its ownnegligence. An additionalcomplication was that ithad lost all the recordsrelating to Mrs G’s birth,making it very difficult forher to prove a case ofnegligence.

The Russell-Cooketeam decided to take on the case on the basisof Mr and Mrs G’saccount of events andtheir subsequentcorrespondence with the hospital. It obtainedexpert reports fromobstetricians, a midwife,a colo-rectal surgeonand a consultantpsychiatrist.

Despite the NHSTrust’s initial denial ofresponsibility for Mrs G’sinjuries, its lawyers madean offer to settle thecase. After furthernegotiation Mrs Gaccepted compensationof £200,000.

An ally against injusticeThree cases of life-changing injury: in each, the odds wereheavily and unfairly stacked against the claimant.

Cases like this are a gamble. Only specialist solicitors with yearsof experience, ample resources and the support of theircolleagues could contemplate taking them on. Yet without theirhelp, claimants with catastrophic injuries would be denied thecompensation they deserve.


Judgement callsWhat happens when a solicitor becomes a judge? Every so oftenFrancesca Kaye and Fiona Read put theireveryday work on hold and sit as deputydistrict judges – part-time members ofthe judiciary who play an important partin keeping the courts running. A typicalday’s workload ranges widely over civiland family law, including money claims,family disputes, divorce settlements andpersonal injury cases.

In some ways being a judge is like anyother demanding job, with formal trainingand regular assessments. But it is achallenging and sometimes lonelyexistence, making decisions on mattersthat can be far outside the specialistlawyer’s everyday practice.

decision then and there, which can be quite scary. Itmeans you spend the hearing effectively preparing –making notes, spotting inconsistencies and so on.When I was trained I was told that the most importantthing when giving a judgement is to explain to thelosing party why they have lost, and I try to do that.FR: I would add that it can be a very lonely existence.You are in court and people are very serious, obviously.You can’t relax at all, you have to be really focused. Atthe end of the day I am frequently exhausted.In terms of mindset, is there a difference betweenbeing a solicitor and a judge?FK: Very much so. As a solicitor you’re always lookingfor angles, using the facts of the case in a way thathelps the client. One of the first things you learn to do injudicial training is to step back and to look at the facts ina completely different way. That can be very valuable toyour work as a solicitor: when I get back to the office,people often ask me to put my judge’s hat on and askme what I would do with a particular application. FR: As a solicitor you build up a relationship with yourclient, and you have the time to really think about thecase and present it to the court. But when you’re ajudge you have such a short time to assess the case.You have to be far more focused on the salient points. What difference has being a judge made to yourwork as a solicitor? FK: I find it’s made me a much better lawyer. I can seethings from the judge’s point of view and that is veryuseful when taking a case through the courts. Theintellectual interest of a much broader jurisdiction is very

Why did you think of applying to be a judge? FK: I knew people who were Recorders (another type ofpart-time judge) and felt it was something I might like todo. Also, I had reached the stage in my career when Iwas looking for a new perspective to add to keep meenergised and challenged. FR: As the most senior person in the department I wasoften asked by colleagues to assess their cases and Irealised this was something I enjoyed. Intellectually I toowas looking to do something a little different.What’s it like to adjudicate in areas outside yourown professional practice?FK: Being a Russell-Cooke litigator I had a very broad-based practice, and of course the basic civil procedureapplies in all areas of civil law. Having said that, familycases are more challenging for me than they would befor Fiona; I had never practised family law and had laststudied it at university, and although you can learn anarea of the law, there’s a difference between applying arule and having a more general feel for the waysomething works. FR: I definitely think it was a lot harder for me. I hadalmost to relearn civil litigation, because it had changedso much since I had studied it. And then I was coveringareas that I had never dealt with in my working life, likelandlord and tenant. The process of communicating anddealing with people, of course, comes very naturallybecause I do a lot of family work, mediation in particular.What’s the biggest challenge? FK: We give extempore judgement in almost everycase; at the end of the hearing you have to give your


What’s your mostmemorable experienceas a lawyer? Dealing with a caseinvolving allegations ofvoodoo (I still have theblack magic potions inmy office) and a possibleapplication to exhume abody for DNA testing.(Luckily, this didn’tprogress. Contrary topopular belief, you don’thave to do it at midnight).We also had a casewhere the client wantedus to take instructionsfrom the deceasedthrough a medium (wedidn’t, I hasten to add).What are the maindevelopments in yourarea of work?An ageing population,increasingly complicatedfamilies and higher-valueestates – all leading tomore disputes. We’rewaiting for the LawCommission to report onpossible new intestacylaws and family provisionclaims (expected 2011).Challenges to wills on thebasis of capacity aremoving the law on all the time.The most challengingcase you’ve dealt with recently? A contested statutory willapplication to the Court ofProtection, involving a

IN PERSONALISON REGANAlison is a partner in the Litigation team, specialising inprobate and trust disputes

£4m entailed estate inCornwall. In two months,we went from receivinginstructions to a fully-contested hearing withQC and junior counsel.The case has resulted in a change in the law and a new test whenconsidering whatstatutory will (a will madeby the Court of Protectionfor someone withoutcapacity) is appropriate.Best legal experience?Mediating a claim underthe Inheritance Act. Thedeceased had been livingtogether with someonefor twenty-five years, buthe died intestate and his£1m estate was left to hisestranged brother. Thebrother did not recognisehis dead sibling’srelationship at all. We had to work hard to getwhat was eventually avery good settlement.What’s the mostcommon avoidableproblem in your area?Not making a will. Makeone. And write a letter toset out why you made itthe way you did.

Francesca Kaye is a partner in the Litigation team,dealing with a broad range of matters including complexconstruction disputes and international litigation. FionaRead is a partner in the Family law team, her areas ofexpertise including high-value settlements, civilpartnerships and cohabitation disputes. Full biographiesat www.russell-cooke.co.uk

satisfying and can be a real advantage as a litigator. FR: I’ve learnt to be far more succinct when preparingfor a hearing before a judge. You realise how important it is for judges to get through their list on time! Also, it’smade me encourage people to think hard aboutwhether they want to go to court. I know fromexperience that a judge isn’t going to have the time togo into the minutiae of a case. Going to court involves abig commitment of money and time, and the outcomemay not be what a litigant expects.Have you ever regretted a decision you’ve made? FK: There’s a range of decisions you can make in anycase. Afterwards, particularly if the case is one wherethe evidence or the law has been fairly evenly balanced,you may think about a decision. I have not regretted adecision I have made in the sense of thinking I have gotit positively wrong. However, we do sometimes makedifficult decisions that significantly affect people’s livesand those are often hard decisions to make. FR: Not really. I had one case go to appeal where therewere some untested legal issues. Making judgementscan sometimes be hard, but generally I haveconfidence in my own assessment.


What’s the most challenging caseyou’ve undertaken recently? I was recently involved in a verycomplicated variation of a will trust whichneeded the approval of the courtbecause a very large group of potentialbeneficiaries were affected, includingchildren and unborns. The case tookmany months to prepare and involvedseveral sets of lawyers acting for thevarious parties. A whole day had beenset aside for the hearing.

When the day came, the manysolicitors, barristers and their clientsassembled anxiously in the court roomand waited for the judge. The leadingbarrister began his opening address. Thejudge immediately cut him short, agreed

to the variation and the whole matter wasdealt with in less than five minutes!What are the main developments inyour area of work? Private client work is often thought of as a rather staid area of law. Nothingcould be further from the truth – it’s a real challenge to keep ahead ofdevelopments in the area, particularly on the tax front. The vast increase in tax legislation under the previousgovernment has been well publicised.This year’s set of tax statutes now runs to more than 18,000 pages – more thandouble the amount from when I beganmy legal career a decade ago. What's your most memorableexperience as a lawyer? During my training I was seconded to the Court of Appeal for a legal term as aresearch assistant to two judges in theCivil Division. The Court of Appeal hasbeen described as the “engine room ofthe judicial system in England andWales” and it was a real privilege towitness at first hand how the Courtoperates from behind the scenes and to have an input into some of thejudgments that were handed down. My experiences there did, however,discourage me from pursuing a careeras a litigator!What's the most common avoidableproblem you’re presented with? The biggest problems tend to be withwills, or rather the lack of them. Manymore people would make wills if theyproperly understood the effect of theintestacy rules. For example, it’s oftenassumed that if a married couple don’thave wills, the survivor of them willautomatically inherit everything in theevent of the other’s death. That is not the case and the results can be verytraumatic for all involved. The solution isvery simple – make a decent will!What's the aspect of your work youenjoy the most? For me, the best thing about privateclient work is the depth of therelationship with people that developsfrom dealing with their personal affairsover a long period of time.

Michael Parkinson is a partner in the Private Client team.He advises on a wide range of issues including trust law,wills and probate, contentious probate (including cross-border and contentious succession issues), landedestates and heritage property

IN PERSONMICHAEL PARKINSON

CASENOTESBANKERS BEHAVING BADLYSenior bankers were raising concerns about banking practices wellbefore the financial meltdown of 2008/9.

Diana Woodward, who has been represented by Employment teamlawyer Alex Bearman, was head of financial institutions for AbbeyNational Treasury Services. She was made redundant afterexpressing concern about the way funds for institutional investorswere handled and says she was warned that she would never work inthe City again.

Her compensation claim raised an important point of law: areemployees protected against victimisation that takes place afterthey have left their employment?

It was decided that they are. As Lord Justice Ward said in a Court ofAppeal ruling in 2006: "It simply makes no sense at all to protect thecurrent employee but not the former employee, especially since thefrequent response of the embittered, exposed employer may well bedismissal and a determination to make life impossible for the nastylittle sneak for as long thereafter as he can.

"He who blows the whistle should be protected when he becomesvictimised for doing so, whenever the retribution is exacted.”

More sex discrimination and whistle-blowing cases on www.russell-cooke.co.uk – go to the employment law section under “individuals” and click on “notable cases”.

Review for Clients 2010/11 | 19Regulation

regulationour regulation team advises on cases relating to the codes of conduct that regulate theprofessions or are laid down bystatutory bodies. Says legal guideChambers: “market commentatorshold this outfit in high esteembecause of its ‘pragmatic, no-nonsense lawyers, who get to thecrux of a case straight away’”

3

Review for Clients 2010/11 | 21Regulation

Trial by mediaBeing accused of a criminal offence is badenough, but an unlucky few fall victim to adouble-whammy: investigation or prosecutionaccompanied by trial by media. Door-steppingjournalists and flashing cameras imposeenormous additional strains on those already in public life – and can push some defendantsto the brink of collapse.

High-profile cases present client and lawyerwith a tricky dilemma. Keep a dignified silenceand hope the press loses interest? Or try to make the best of a difficult situation byactively trying to shape the press agenda? Jae Carwardine and Nicola O’Connor talkabout recent cases and the issues they raise.

CASENOTESJUSTICE IS ENOUGH

Jae Carwardine, who leads Russell-Cooke’s criminal litigation team, hasrepresented a number of clients whowere already in the public eye or whosecases aroused intense media interest.Her clients have included Sir StephenRichards, Lord Justice of Appeal, whowas accused of exposing himself on atrain; Peter Hain MP, who wasinvestigated in relation to the latereporting of donations received duringhis campaign for the Deputy Leadershipof the Labour Party; and the high-profilecase of Paul Dalton, who was chargedwith murder.

‘’I think every professional person willrecognise the stressful aspects of casessuch as these, representing someonewith so much to lose.

“The press can be terribly intrusive. Inone case we arrived at court for the initialhearing in the magistrates’ court to findourselves effectively besieged by thepress; there were no barriers outside the court. It was an ordeal for all involved.Journalists turned up at my client’s

house, as his home address was amatter of public record. Privacy does not come into it.

“Often my approach is a low-key one.In the case of Sir Stephen Richards, theelement of notoriety was simply a resultof our client’s public role; there were nopoints of legal interest, and the onlyaspect of wider application was theissue of identification. Basically, we tookthe decision not to make any commentor engage with the press at all.”

Sir Stephen was acquitted aftermagistrates ruled there was insufficientidentification evidence. “Afterwards there were a lot of press enquiries, but Idecided it was not appropriate for me to be interviewed. Sir Stephen made ashort statement outside court and thatwas sufficient.”

Jae feels that it is rarely in the client’sbest interests for a lawyer actively toengage with the press. For one thing,publicity is difficult to control: “You canbe asked a question when the directanswer is clearly something confidentialto the client. At the end of the day,journalists aren’t interested in whetheryou’re breaching client confidentiality or

CASENOTESTHE RECORD SET STRAIGHT

Nicola O’Connor, who isa member of the criminallitigation team,represented Peter Bacon,a 26-year old student andtrainee chef, against rapecharges. The jury took just40 minutes to acquit him.

“The huge interest wastotally unexpected; I’vedealt with many similarcases with no pressinterest at all. It turned astraightforward case intoa very difficult one. Theclient phoned me at eighto’clock saying he’d justseen his picture on theBBC’s Breakfast News.After that, the press wererelentless: they wereeither on the phone tome, if I wasn’t at court, orthey were at court.

“The biggest problemfor the client was that they

all descended on the daywhen he was supposedto be concentrating ongiving his evidence. Itwas very difficult to try tocalm him down so that hecould properly preparehimself in the witnessbox. At one stage he wasso upset that he couldbarely even speak, letalone explain whathappened to a jury.”

The press coverage was partly based on amisunderstanding of thelegal position: the papersclaimed that the lawrelating to whatconstitutes consent hadchanged. This was notthe case, as the judgerepeatedly pointed out to the jury.

“Ordinarily the last thingwe want to do as defencesolicitors is contact thepress, because it putsyour client’s trial injeopardy. However, in this

case the press hadalready been giveninformation fromelsewhere. After he wasacquitted, the client feltthat he wanted to put hisside across and explainwhat happened, and itseemed like the right timeto do so. In fact the presswere sympathetic to him,which helped.

“I made a statement on behalf of the clientoutside the courtfollowing his acquittal,and this was covered inthe national newspapersthe following day.

“I am still asked forcomment by the media –for example, on DNAevidence and whether itshould retained followingacquittal. I have appearedas an expert on BBC1’sThe Big Question twiceand have also beeninterviewed many timeson national and local

radio. Researchers at theBBC call me for advice ona wide range of criminallaw issues.”

Although Peter Baconwas acquitted after a jurydeliberation of just 40minutes, he felt he had to leave the country andchange his name. Hewanted to be a teacher,but would now find it hardto get a job in the UK;despite his acquittal, hisfingerprints, photographand DNA remain on thepolice database.

“Before the election the Conservativespromised to look at theissue of keeping suchrecords when peoplehave been acquitted.Now we have a differentgovernment, I wait to seewhether there is a changein the law which will assistPeter and others who arewrongly accused of suchserious offences.”

22 | Review for Clients 2010/11 Regulation

not – and yet this is absolutely at theheart of the relationship between youand your client.”

Sadly, the press can’t be relied on toget their facts right. “Someone I represented in an allegation of murderwas shot and very seriously injuredshortly after he was acquitted. TheEvening Standard completely mis-reported what the case was about andalso printed his home address anddetails of the hospital he was beingtreated in. That caused his family greatdistress; it was highly irresponsible.”

Some lawyers cultivate a high profile asa matter of policy, courting the press andseeking out publicity for client and case.“There’s sometimes an element of self-promotion there. And I suppose ifyou’ve done a good job on a case, somemay think why not? But this has to bebalanced against whether presscoverage is in the client’s interest, which,in my view, it rarely is. When someone’sbeen acquitted and justice has beendone, that is all they need or want.”

Jae Carwardine is actingin the case of an allegedmulti-million poundcarbon credit fraudinvestigation. The case,which is being closelywatched by the financialpress, is a highlycomplex one with anumber of defendants. In autumn 2009 theTreasury removed VATfrom carbon credits as atemporary measurepending the outcome ofdiscussions about thisand other cases.

CASENOTESALLEGED CARBONCREDIT FRAUD

What’s the most recent challengingcase you’ve handled recently? A case called Karen Murphy v MediaProtection Services Limited (2008). I was instructed to prosecute on behalfof the Premier League for the illegalscreening of their football matches.

It started out as a straightforwardmagistrates’ court case, was appealed to the Crown Court and then “casestated” to the Administrative Court of the High Court. We’ve won all thehearings so far – but the case has nowbeen joined to another, civil jurisdiction,matter that has been sent to theEuropean Court of Justice. What's your most memorableexperience as a lawyer?As a lifelong fan of Tottenham Hotspur,walking through the gates of White HartLane after we’d been instructed inrelation to a transfer issue!

Also going to the House of Lords to

IN PERSONMATT BOSWORTHMatt Bosworth is apartner in theRegulation team,specialising inprofessional regulationand the enforcement of intellectual property rights

represent a Member over expensesissues, following coverage in the DailyTelegraph. A very interesting time, and a particularly British setting. What’s your best/worst legalexperience? Best: winning the Murphy case (above)in the Adminstrative Court. It was LordJustice Pumphrey’s last-ever judgmentand he agreed with all our arguments. An extremely satisfying moment. Worst: being threatened with arrest if Ididn’t leave the police station where myclient was being interviewed. It allworked out in the end – but a worryingthirty minutes.

24 | Review for Clients 2010/11 Regulation

CASENOTES

The firm acted on behalf of the Law Society and the SolicitorsRegulation Authority in a number ofcases involving the high profile solicitorShahrokh Mireskandari, who wasfeatured extensively by the Daily Mail inrelation to his alleged connections to the former Metropolitan Policecommander Ali Dizaei.

Led by Peter Cadman (above) – praisedby Chambers 2010 for his “exceptionallysound judgement” – a team representedthe Solicitors Regulation Authority in aserious case of professional misconductagainst two solicitors working forBeresfords Solicitors. It was alleged that the two failed to act in their clients’interests after taking a cut of paymentsmade to sick miners under thegovernment’s British Coal compensationschemes. The charges were upheld andthe solicitors were struck off.

Matt Bosworth and colleagues acted asindependent prosecutors on behalf ofthe Federation Against Copyright Theft in what was at that time the largestinternet-based piracy case tried in theUK courts. Matt is appreciated by clientsfor his “ability to convey complex mattersin layman’s terms”, says Chambers.

Peter Cadman and colleagues acted for the Institute of Legal Executives in a case of exam cheating brought against six student members. Theallegations included copying fromtextbooks and copying and collusionbetween students (evidenced byidentical but wrong answers). They wereexpelled from membership.

CASENOTESA POLITICALCAREER AT STAKE

In the glare of nationalpress coverage, aRussell-Cooke team ledby John Gould and JaeCarwardine representedPeter Hain MP followingaccusations that he hadfailed to report over£100,000 of donations to his campaign for thedeputy leadership of theLabour Party.

Peter Hain resignedfrom his posts asSecretary of State forWales and Secretary forWork and Pensionsduring investigation by the ElectoralCommission. The casewas later referred to theCrown Prosecution

Service, which decidednot to press chargesbecause Peter Hain didnot control the body that had received thedonations and funded his campaign.

A Russell-Cooke pressstatement after the casewas critical of theElectoral Commission’sdecision to invite a policeinvestigation, suggestingthat the Commission had buckled under theweight of intense mediapressure. John Gouldpointed out thatnumerous other latereturns relating topolitical donations hadnot been treated in thesame way. Russell-Cooke had identified thekey point on which theCPS decision was based.

Full details on these and other cases atwww.russell-cooke.co.uk/about-news.cfm

Review for Clients 2010/11 | 25Charity

charityour charity team, a leader in its field,advises the voluntary sector ongovernance, commercial contracts,intellectual property, employmentand property issues. Led by JamesSinclair Taylor, “one of the bestbrains in charity law”, it “benefitshugely from the firm's depth ofresources,” says Chambers

4


High anxietyAre you a charity trustee? (You might well be, as there are nearly a million of them.) Do youworry about being held personally liable ifthings go wrong? Senior Charity Team lawyerAndrew Studd assesses the risks

It is a fact of life that those who try toachieve something worthwhile willoccasionally find their efforts rewardedwith difficulty and worry. When theCharities Act 2006 was making its waythrough Parliament, a key issue thatarose again and again was the liability of trustees.

There are more than 200,000 charitiesand similar voluntary organisations in theUK. Cases against charity trustees arenot exactly filling up the courts’ workload;in fact, most people within the sectorwould be hard put to name a singlesituation in which a trustee had actuallysuffered personal loss or liability –although they would find it less difficultto identify situations where they knewtrustees had been anxious about theoutcome of various activities. The CharityCommission too looks to punish trusteesonly in the most serious cases of fault or neglect.

However, it is important that thoseindividuals who voluntarily give of theirtime to run charities and similar voluntaryorganisations should be aware of – andfeel comfortable with – the limited risksinvolved. A trustee’s undue anxiety aboutpersonal liability can often interfere withthe proper running of the organisation,which is why managing that anxiety is akey skill for the company secretary andother senior staff.

Trustees can become very concernedabout personal exposure incircumstances where, for example, theorganisation faces financial difficulties oris moving into unfamiliar territory. Othertypical sources of anxiety include thethreat of litigation, accusations of

discrimination from a member of staff, orwork on a major new contract.

If the company secretary does not orcannot address these concerns, he orshe may find that the board freezes upand key decisions go untaken. Boardmembers need to have enough concernabout their legal duties to ensure they dothe job properly, but avoid becomingunnecessarily anxious.

The Charities Act offers some relief inthat if trustees act on formal Commissionadvice, they will not be liable and theycan obtain relief from personal liability fora breach of trust where the trustee hasacted honestly and reasonably.Previously, only the courts could relievethem of this sort of liability.

The Charity Commission takes theview that ‘if trustees act prudently,lawfully and in accordance with theirgoverning document then generallyliabilities they incur as trustees can bemet out of the charity’s resources’.Therefore, normally only where a trusteehas acted dishonestly or recklessly is itactually likely to enforce personal liability.

In the full version of thisbriefing, available online,Andrew Studd sets out thelegal position in relation totrustees’ liabilities, lookingat governance andoperational liabilities indetail, including staff risksand insurance. A checklist for managingrisk is included. Go to thecharities section ofwww.russell-cooke.co.ukand click onarticles/briefings/e-updates.You can also subscribe toreceive future briefings.Russell-Cooke runsregular seminars on riskmanagement for trustees.

CASENOTESMODEL COALITION

Andrew Studd and theCharity Team played akey role in creating agroundbreakingpartnership thatcommentators say couldprovide a model forfuture development inthe voluntary sector.

The specialist teamadvised Action for BlindPeople on its

collaboration with themuch bigger RoyalNational Institute for the Blind. The newarrangement helps eachorganisation to achievemaximum impact byfocusing on the things itdoes best, with the RNIBconcentrating onfundraising and Actionfor Blind People, which isnow an “associatecharity” of the RNIB,delivering some regional

services. Thecollaboration involvesthe transfer of staff,business units andcontracts with localauthorities.

Stephen Remington,the chief executive ofAction for Blind People,told Third Sector thatalthough the twoorganisations hadworked togethersuccessfully in the past,Action for Blind People

had never contemplateda full-blown merger withRNIB. "We've been goingfor 150 years,” he said,“and you don't surrenderyour heritage andidentity lightly."

Under the newarrangement Action forBlind People retains itsown identity, board oftrustees and strategicmanagement team.

28 | Review for Clients 2010/11 Charity

What challenging cases have youdealt with recently? Advising on the merger of five women'said charities in Manchester to formManchester Women's Aid, and on themerger of three women's aid charities inLondon to form Solace Women's Aid.Also, challenging the CharityCommission on its interpretation of theSexual Orientation Regulations.What are the main developments inyour area of work?Many charities are facing fundingdifficulties. This is leading to an increasein mergers, and creating challengesrelating to the employment of staff. The employment experts in the CharityTeam have been regularly advisingcharities on alternatives to redundancy,such as the reduction of working hoursand pension liabilities.

The Companies Act 2006 and theCharities Act 2006 have had asignificant impact on many charities.Many have had to amend theirconstitutions, change their policies andadministrative procedures and re-traintheir trustees/directors in their legalduties. A new charity structure, thecharitable incorporated organisation, isbeing developed which we have beenfollowing closely and covered in ourseminars. However, there is likely to bequite a long wait before this new modelis finally introduced and we do havesome reservations about it at this stage.What's your most memorableexperience as a lawyer?Giving my first charity law seminar andbeing able to answer the questions!

IN PERSONTAMSIN PRIDDLETamsin is a member of the Charity Team.She joined Russell-Cooke in 2006 fromTravers Smith

And your best/worst legalexperience? My best experience was moving intocharity law from my previous life at a City law firm. There hasn't been a worstexperience yet!What's the most common avoidableproblem your clients present with?Where the client has decided to instruct a lawyer too late in the day and could have saved themselves a lot of money and difficulty if they hadcontacted us earlier.What are your main likes/dislikesabout the area of law you work in?The most positive aspect of my work isthat all my clients are in the not-for-profitsector. I enjoy the fact that I get to workwith clients on an ongoing basis, ratherthan carrying out one-off pieces of workand never seeing them again. Long-term clients I work with include theProstate Cancer Charity, the Campaignto Protect Rural England and a numberof women's aid charities. On a lesspositive note, dealing with regulatorybodies can sometimes be frustrating.Which aspect of your work do youenjoy the most?I particularly enjoy helping clients toestablish new charities, to incorporate,and to merge with other charities. I workwith a lot of organisations with largememberships and like dealing with thepolitics that this involves.

I enjoy advising charities on intellectualproperty matters. And I like the trainingelement of my work – giving seminars,workshops and tailored training sessionsfor charity trustees and staff.


What’s changed in theway charities governthemselves?Of the 25,000 or sobiggest charities in theUK, most are companiescovered by theCompanies Act 2006.This piece of legislationchanged the legaldefinition of directors’duties, in particular theway the law treatsconflicts of interest and(more relevantly for thecharity sector) conflicts ofduty. Charities now havea legal obligation tomanage conflicts of duty.

Conflicts of duty do notentail any personal gainfor the individual. As anexample of a conflict ofduty, you might both sitas a trustee of charity Aand be employed bycharity B. Those charitiesmay work in the samefield, and the informationyou gained while sittingon the board of charity Amight be relevant to yourdaytime employment ascharity B. The voluntary sectorhas been quite slow incoming to terms withthe change in the law.Why is that?The sector is really quitereluctant to recognise

A problem that won’t go awayCharities that fail to update their governance inline with legal changes are taking big risks.James Sinclair Taylor answers questions on anissue many would rather not think about

conflicts of duty, becauseit sees people asbasically motivated bygood intentions. It is anarea that charities aresomewhat embarrassedabout; they don’t like togo there. You ask “Whathave you done aboutconflicts of duty?” andthey say, “Oh! We alwaysdeclare things”.

To give an example, I siton the board of a nationalcharity, and another boardmember nominated byone of the charity’scommercial partners didthings that quite clearlybrought them intocompetition with thecharity, but didn’t feel theneed to mention it. What’s the worst thatcan happen if a charityfails to comply? Members of a charityhave the right to takeaction against trusteeswho haven’t followed theirstatutory duties. This cancause very considerabledifficulties.

There is also areputational issue. Acharity’s biggest asset isits good name. A publicstatement that the charityhas not behavedaccording to best practiceis likely to be highly

damaging to its ability toraise funds, obtaincontracts or enter intocollaborative relationships.

There is also areputational risk for boardmembers, who give theirown time freely and oftenoccupy positions ofimportance elsewhere. It is intensely unpleasantand embarrassing forthem to face allegationsthat they have failed touphold their statutoryduties. Will a charity know if ithas a problem?Not necessarily.Organisations often feelthey have good enoughprocedures, only to findout later that they don’t.

Constitutionaldocuments are of greatimportance, but charitiesin general tend to paythem little regard. Onegood thing about thelegislation is that it hasserved as a wake-up call.Many charities havesuddenly realised that it’sfifteen years or so sincethey last looked at theirconstitutions and thatsince then their activitieshave changed hugely.A charity suspects it isnot complying with thelaw. What should it do?

It needs both to updateits constitutionaldocuments and developand implement goodpractice. Frequently some guidance isrequired to help peopleunderstand the two kindsof conflicts – conflicts of interest and conflicts of duty – as it’s not reallya commonsensedistinction. And how can you help? Well, we can alert peopleto the issues through ourtraining, publications andthe legal audits we carryout for charities andfunding organisations.We can develop solutionsthat fit the specific cultureand structure of anorganisation – then putthe necessary paperworkin place, and support itwith advice and training.What about smallercharities that don’t havethe resources for acomprehensivegovernance review?We often work forumbrella bodies that canrelay good practice downchain. But otherwise wecan do a “just fix it”, notlooking at the widergovernance issues butgiving basic statutorycompliance.

30 | Review for Clients 2010/11 Training

The generation gameHow does Russell-Cooke choose itsyoung solicitors?

There are around twice as manyaspiring solicitors as there are trainingcontracts for them. On the face of it thisis good news for legal firms, able to taketheir pick from a seemingly bottomlesspool of well-qualified applicants. But itdoesn’t necessarily make the selectionprocess any easier – especially if, likeRussell-Cooke, you recruit for the longterm and see your graduate recruits asthe partners of the future.

Jonathan Thornton is the Russell-Cooke partner responsible for graduaterecruitment (his “day job” is leading theCompany Commercial team). Like manyof the current partners, he trained withRussell-Cooke. He has a clear sense ofwhat the firm is looking for: quick-witted,resourceful and academically impressivepeople who will blossom when givenearly responsibility.

The firm has one big advantage in therecruitment round: its breadth of work. Itcan provide a more rounded legal

Review for Clients 2010/11 | 31Training

training than most law firms can offer,including the opportunity to gainexperience in handling commercial,voluntary sector and publicly-fundedcasework. And it has a good reputationas an employer; the anonymous traineesquoted in the legal training survey Lex 100 talk about Russell-Cooke’s“civilised culture and ethos”, high-quality legal training and intelligent,straightforward approach.

With many hundreds of applicants andbetween six and eight training placeseach year, the selection process startsoff as a numbers reduction exercise. The firm doesn’t insist on a law degree –“we’re more concerned with theindividual rather than the subject they’vestudied” – but applicants do have to beacademically well-qualified: top gradesat A levels and a good degree. Thesedays, an increasing number have firsts,or are impressively accomplished inother areas, like music or sport.

“They do tend to have a very broadrange of skills,” says Jonathan. “Which isjust as well, because we’re quitedemanding of them in many ways. Theyhave to be able to relate well to clientsand manage relationships as well as beeffective lawyers.”

After the initial screen, around ten percent of applicants are invited for a firstinterview. At this stage the cleardifferences between similarly-qualifiedcandidates become apparent. Peoplewho look brilliant on paper often turn outto be less than impressive face-to-face,wilting even under gentle questioning.

“It’s striking how often candidatesdon’t seem to be able to say anythingcoherent about large areas of their CVs.They all tend to include similar phrasesabout working as part of a team and soon. But you ask them to give an exampleand they can’t. Or they’re stumped whenyou ask them to explain a piece ofcoursework they’ve undertaken.”

Candidates who emerge from the firstround go on to an assessment day,including a timed written exercise and asession in which they have to respond toa case study. “We also send them off tolunch with trainees, to get some frankviews on what life here is like; and thenin the afternoon we give them anothershort individual interview. After that we sitdown and chew our pencils.”

Applicants generally like the idea ofresponsibility and challenge, but asJonathan observes, that doesn’t meanthey’ll necessarily find it easy to copewith in practice. “Judging how well they’llrespond is the really key part of therecruitment process.”

Taken as a whole, is the process doingwhat it is designed to? “I think we’redoing well, in that we’re recruiting verygood people.” This year every graduatetrainee in the 2008 intake was offered,and accepted, a job with the firm at theend of their training – a measure of thefirm’s confidence about the future.(Average retention rates for the legalsector as a whole are 75 per cent.)

For a firm that plans for the long-term,this is as it should be. “We put a greatdeal of work into ensuring we recruit themost talented candidates, and thenmake a significant investment in theirtraining. It’s only natural that we want toretain them if we can.”

Find out more about thegraduate recruitmentprocess at www.russell-cooke.co.uk

32 | Review for Clients 2010/11 Sponsorship

1997 Takes up rowing1999 Commonwealth Games Silver

medal2000 Under 23 World Champion, rowing

national champion2003 4th place in World Championship2004 Olympic Silver medalist, quadruple

sculls2005 World Champion, quadruple sculls2006 Switches to cycling2006 British cycling time trial Champion2007 British Champion, 3km individual

pursuit2007 World Silver medalist, 3km

individual pursuit2008 Olympic Gold medalist, 3km

individual pursuit

The power and the glorySponsored by Russell-Cooke since she was a junior, OlympicGold medal-winner Rebecca Romero is the only Britishwoman athlete to compete in successive Olympics. Herachievements bear witness not only to her huge natural talent,but also her resilience in the face of unexpected adversity.

Setbacks that she has triumphantly overcome includethe persistent back problem that ended her rowingcareer only a year after winning a Silver medal at the2004 Olympics; and the shock axing this year of theindividual pursuit track cycling event, in which she wona Gold medal at the Beijing Olympics.

Determined to compete in London 2012, she isn’t inthe least fazed by the prospect of changing event yetagain, probably to team pursuit. It helps that her desireto win is stronger motivation than her commitment to anindividual sport. “The aim of being an elite athlete,” shehas said, “at least for me, is to find the point at whichyou can do no more – your breaking point. Becausethen you will have done everything.”www.rebeccaromero.co.uk

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