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The LegAL AwARDS 2014

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The articles published in the Birmingham Bulletin represent the views of the contributor and are not necessarily the official views of the Birmingham Law Society, or of the editorial board. The magazine or members of the editorial board are in no way liable for such opinions. whilst every care has been taken to ensure that the contents of this publication are accurate, we cannot be held responsible for any inaccuracies or late changes. no article, advertisement or graphic, in whole in or print may be reproduced without written permission of the publisher.

conTenTS

President’s Report martin Allsopp

04LAwyeRS wARn on ImPAcT of LegAL chAngeS

LegAL newS 12

IRwIn mITcheLL TRAInIng SemInAR

eVenTS 30

ouR AnnuAL SPecIAL

foRenSIc AccounTIng 16

genuIneLy LISTenIng To cLIenTS AnD memBeRS

feATuRe 23

LegAcy gIVIng – IT’S ALL ReLATIVe

memBeRS’ newS 14

The LATeST cPD couRSeS fRom BLS

LeARnIng & DeVeLoPmenT 24

BLS cRownS LegAL AwARDS wInneRS

LegAL AwARDS 06

www.birminghamlawsociety.co.uk | 3

Birmingham Law Society Legal Awards 2014

04

editorial copy to:Birmingham Law Society, 43 Temple Row, Birmingham, B2 5LSTel: 0121 237 6004 DX 13100 Birmingham

Regulation ReportJayne willetts

27

The LATeST fRom The PRo Bono commITTee

PRo Bono noTIceBoARD 14

As with Past-Presidents I have mixed feelings about vacating

my post! There have been highs and lows in abundance. for

those of you that have asked I guess that my legal high was

attending the opening of the flemish Legal year in Belgium –

what a pleasure and an honour that was. The low has to be

the announcement by mr grayling of the cuts to Legal Aid,

which will savagely affect the profession and the legal rights of

the poor and equally as importantly the lack of young Lawyers

entering into the profession to cover specifically the criminal

and civil fields previously funded by Legal Aid. In the years to

come I fear that there may have been created a huge void of

legal talent in these specific fields and my own personal view is

that the LeTR Review will do little to address quality standards in

the profession that I entered more than 40 years ago.

As I said however there have been highs in abundance. As

President I have been fortunate to meet a number of highly

influential people and I am happy that the candle of the legal

profession that I shall leave behind is well lit and will continue to

burn for many years to come.

I write immediately following another of our legal highs – our own

Legal Awards ceremony held at the Icc. There was a record sell-

out for this event where competition for prizes was as fierce as I

have ever known it to be and I congratulate all of the prize winners

and certainly commiserate those that made the shortlist as there

were a number of eminent “failures” (I jest), many of whom would

have scooped the awards in years gone by. I express again in

writing my thanks to our shortlisting and impartial judges and also

each and every one of BLS’ famous Sponsors, whose feedback

I am pleased to say to date has been excellent. BLS needs its

Sponsors and the quality of the Sponsors and the contributions

made by those respective Sponsors to the success of BLS has

been magnificent and I thank each and every one of you Sponsors

personally for supporting BLS during my Presidential year.

During my year we have held a number of networking events,

the final of which will have been held at the Radisson on 10th

April jointly with the RIcS. It is important to my mind that the

legal profession should engage with other professions within the

city and I do hope that joint engagements with other professions

will follow in the months and years to come.

The Board in particular have been very helpful to me during my

year. They have assisted me in achieving all of the mandates that I

promised when I became your President, including at last the setting

up of a helpline – details of which will be announced in due course.

During the year we have engaged in two “meet your Local

Solicitors” events in Solihull and Sutton coldfield and the third

and final of such events will be my last event as President to be

held in the churchyard of St Phillips on 26th April. In the hope

that the Bulletin reaches you before 26th April I would hope that

as many of you as possible will pop into our marquee, both to

say goodbye and to offer any assistance to members of the

public too terrified to enter into the large and palatial buildings

of our city firms!

I believe that I have accomplished the promises that I made

when I became your President and I am only a little disappointed

that we have finally not concluded issues concerning what was

once our stately home in Temple Street. The Board are working

very hard in dealing with the issues concerning Temple Street

as I write this article and a special sub-committee has been

created by the Board specifically to deal with issues concerning

our former home.

Shortly before my final event on April 23rd I shall be delighted

to host our quarterly Joint IV meeting (the first in my year to be

held in Birmingham) at which we shall be comparing the problems

being felt here in Birmingham and other Joint IV areas. nick fluck,

our national President, has been invited and has agreed to attend

at our Joint IV meeting where the Presidents of the Joint IV and

others will be able to share problems facing the whole of the nation.

I refer particularly of course to Legal Aid (and with considerable

interest as a Property Solicitor) to the suggested privatisation of

hm Land Registry where more than 95% of the profession have

apparently voted against this suggestion. I shall lay my colours to

the mast and say that I am part of the majority and am completely

opposed to the privatisation of the Land Registry which, following

modernisation over the years, in my opinion has served the legal

profession well and confidentially, and generally speaking, with

one or two exceptions (in particular with applications for first

registration of title) efficiently for many decades.

As I said earlier in this Bulletin BLS is going from strength to

strength. your new President, eileen Schofield, is already known

to many of you in the city and across the west midlands area.

eileen will prove to be an excellent President and she will be

well supported by our newly to be appointed Vice-President,

mushtaq Khan. I wish eileen and mushtaq all the very best in

their years and they know that I am on standby to assist should

the need arise.

It remains for me now all Bulletin readers to thank you for your

very kind comments over my Presidential year, which have been

much appreciated. It has been an absolute honour and privilege

to have served as your President. n

PReSIDenT

President’s ReportmARTIn ALLSoPP | PReSIDenT, BIRmInghAm LAw SocIeTy

This is my last opportunity to write to you as your President.

4 | www.birminghamlawsociety.co.uk


LegAL AwARDS

more than 550 people attended the event, held at the Icc,

to recognise the achievements of the city’s legal sector

over the last year.

The night’s big winner was gateley, which walked away

with the coveted award for Law firm of the year (16+

partners). A special lifetime achievement award was

also presented to Anthony collins of Anthony collins

Solicitors. The event was hosted by ITV central weather

presenter emma Jesson, with sports personality and

olympic medalist Steve cram providing the after dinner

entertainment as guest speaker. n

Birmingham Law Society crowns Legal Awards winnersThe city’s legal and business community donned its best black tie attire for Birmingham Law Society’s 13th annual Legal Awards.

The night’s winners line-up. Bottom row: ekaterina wild (Dwf), Jane Plant (weightmans), hayley Simonds (mills & Reeve), Pam Sanghera (The family firm Solicitors), Victoria garrad (gateley) middle row: Sam harris (weightmans), caroline coates (Dwf), David ho (christine Lee & co), Richard Atkins Qc (St Philips chambers) Top row: Phil Shiner (Public Interest Lawyers), Dean Parnell (Sydney mitchell), martin Allsopp (BLS president), Anthony collins


LegAL AwARDS

Al willcox (SRA), Sam Burns, Bernadette griffin, clare coburn, Paul frith (all The university of Law)

Peter cottrell (wesleyan), Tony Rollason (Landmark Information group), Rebecca Blaymires (wesleyan for Lawyers), Tracey Allsopp (Allsopp & co), martin Allsopp (BLS president)

Paul Bleasdale Qc ( no5 chambers), Denise Brosnan, caroline coates, Derek Adamson (all Dwf LLP)

Joanna Seabright (chiltern Railways), claudia Santillo (Santillo consulting), michael Shepherd (BPS Birmingham future), Alan Riley (chiltern Railways)

Stephen gowland (cILex president), Dawn Slow (cILex council member), mary Kaye (Sgh martineau), martin Allsopp (BLS president), clive Read (Sgh martineau), eileen Schofield (BLS vice president), chris owen (BLS chairman)

martin hall (giles Insurance Brokers), Sue hatton (Pickerings Solicitors), chris Price (giles Insurance Brokers), michele Drinkell (giles Insurance Brokers), eamon mooney (Kennedys), Jason mole (giles Insurance Brokers)

Sundeep Bilkhu, Raj Bains, Dean Parnell (all Sydney mitchell)

Andy casey, mark eddows, michael Jackson (all marston group)

LegAL AwARDS


his honour Judge william Davis Qc (Recorder of Birmingham), ed Beever, Joe wilson (both St Philips chambers)

Left to Right: chris owen (chairman BLS), martin Allsopp (President BLS), eileen Schofield (Vice President BLS), mushtaq Khan (Deputy Vice President BLS)

Steve Allen (mills & Reeve), chris Loughran (Deloitte), Victoria Lineton (mills & Reeve)


LegAL AwARDS

Trainee Solicitor of the year Award, ekaterina wild (Dwf) with sponsor Bernardette griffin (The university of Law)

Barrister of the year Award, Richard Atkins Qc (St Philips chambers) with sponsor zoe Daley (Phs DataSolutions)

chartered Legal executive of the year Award, Pam Sanghera (The family firm Solicitors) with sponsor Paul Sparrow (university of wolverhampton)

Paralegal of the year Award, Sam harris (weightmans LLP) with sponsor mark Jarvis (Severn Trent Services)

Assistant / Associate of the year Award, Jane Plant (weightmans LLP) with sponsor martin hall (giles Insurance Brokers)

International Lawyer of the year Award, Phil Shiner (Public Interest Lawyers) with sponsors mandy haque, Selim ozturk (Birmingham Airport / Turkish Airlines)

Partner of the year Award, caroline coates (Dwf) with sponsor Adrian Keeling Qc (no5 chambers)

corporate Social Responsibility / Pro Bono Lawyer of the year Award, hayley Simonds (mills & Reeve LLP) with sponsor Paul hackett (Key forensic Services Ltd)


LegAL AwARDS

Law firm of the year Award (sole practitioner - 4 partners), christine Lee & co Solicitors with sponsor Thomas Ableman (mainline from chiltern Railways)

Law firm of the year Award (5 - 15 partners), Sydney mitchell LLP with sponsor Tony Rollason (Landmark Information group)

Law firm of The year Award (16 + partners), gateley LLP with sponsor Joe wilson (St Philips chambers)

Lifetime Achievement Award, Anthony collins with sponsor nathan Darby (Rathbones)

Birmingham Law Society wishes to thank all of our kind sponsors


commercial property landlords

in Birmingham need to take

note of the new commercial rent

arrears recovery scheme which

came into force on 6 April 2014.

The remedy of distress allows a

commercial landlord to instruct a bailiff

to enter a tenant’s premises to seize,

impound and sell goods belonging

to the tenant of an equivalent

value to any rent arrears owed.

Although distress has been the

subject of much criticism over the

years, it is regarded by landlords

as a highly effective process for the

recovery of commercial rent arrears.

however, the remedy of distress

will be abolished in April 2014

and replaced with a new statutory

process, namely commercial Rent

Arrears Recovery (cRAR). Landlords

who have tenants in rent arrears

are advised to act quickly before

these changes and, if in doubt, to

take legal advice on their options.

“These changes have been in the

pipeline for a number of years and

will no doubt be welcomed by

tenants”, said litigation solicitor,

Susan ford of george green LLP.

“There is little doubt that the new

scheme will represent the loss

of a significant weapon from a

landlord’s armoury when dealing

with defaulting tenants”, she said.

one of the key criticisms of the

cRAR scheme is the fact that the

obligation upon the landlord to serve

7 clear days’ notice before entering

the tenant’s premises would diminish

the effectiveness of the remedy, as

the tenant, having been given notice

of the landlord’s intentions, will

remove any goods of value from the

premises during the notice period.

wolverhampton based property

litigation partner, James coles of

george green LLP, carried out a

survey regarding the key changes

of the new scheme with 50 Black

country landlords, all of whom

believe that the changes represent

a real erosion of landlords’ powers

when dealing with defaulting tenants.

James commented, “it is likely

that the new scheme will result in

landlords more regularly deploying

alternative remedies, such as

forfeiture, tenant insolvencies

or pursuing Court proceedings.

In addition, landlords may be

forced to take protective steps

at the outset, such as taking

larger rent deposits and more

frequently obtaining guarantees”.

James coles concludes, “the key

message for landlords is to remain

diligent, to watch for early warning

signs of tenant financial difficulty

and to take legal advice at an early

stage, in order that all of the relevant

options can be explored”. n

LAwyeRS wARn on ImPAcT of LegAL chAngeS

chAIRmAn of The LegAL SeRVIceS BoARD

The Legal Services Board (LSB)

welcomes the appointment of

Sir michael Pitt as the chairman

designate of the LSB. he will

succeed David edmonds cBe

whose second term as chairman

comes to an end on 30 April 2014.

Sir michael, whose appointment

has been announced today by the

Lord chancellor in consultation

with the Lord chief Justice, will

become chairman on 1 may 2014.

Lord chancellor, chris grayling

said: “I am pleased to announce

Sir Michael Pitt as the new Chair

of the Legal Services Board,

LegAL newS

and congratulate him on his

appointment. He brings with him

experience which will be invaluable

to the LSB as it moves forward

in its important work overseeing

the regulation of legal services

in England and Wales. I wish

him good luck in his new role.”

current chairman of the Legal

Services Board, David edmonds

said: “I am delighted to welcome

Michael as my successor as

Chairman of the Legal Services

Board. He will take over at

a exciting, interesting and

challenging time for legal services

in England and Wales. He will

lead an organisation of committed

proponents of competition,

market liberalisation, and putting

the consumer interest at the heart

of regulation. I wish him well.”

Incoming chair of the Legal

Services Board, Sir michael

Pitt said: “It is both an honour

and a privilege to have been

nominated as the new Chairman

of the Legal Services Board. I

know that in succeeding David

Edmonds I am succeeding

an outstanding Chairman.

I also know that I will take over at

a key point in the development of

the legal services market and its

regulation. I look forward to the

challenge of continuing to drive

forward the positive changes for

consumers and new opportunities

for providers which the Act

has initiated in legal services

in England and Wales.” n

The Solicitors Regulation

Authority (SRA) has signed up

to play its part in the second phase

of a government scheme that

should see a legal apprenticeships

programme developed by law

firms which can for the first time

lead to qualification as a solicitor.

on Tuesday 4th march the

Department for Business, Skills

and Innovation launched Phase 2

of its Trailblazers Scheme as part

of national Apprenticeship week

celebrations. The Trailblazers

scheme is aimed at improving

apprenticeships by using standards

designed by the industry itself.

Law is one of the business areas

in Phase 2, and the SRA will be

working alongside organisations like

Addleshaw goddard, eversheds,

Irwin mitchell, Pinsent masons

and wragge & co, together with

BPP, cILex and the university of

Law to develop the standards for

Apprentice Trainee Solicitor and

Apprentice Trainee Lawyer. Solicitors

who qualify through this route will

have to demonstrate to the SRA that

they meet the same standards as

anyone who has come through more

traditional paths to qualification.

Julie Brannan, SRA Director of

education and Training, said:

“We are delighted to be a part of

the Trailblazers higher level legal

apprenticeships scheme. It will

provide a new way for school-

leavers to benefit from education

and training, to demonstrate

they meet our high standards

and to qualify as a solicitor.”

The Trailblazers Scheme was

launched in october 2013

following an independent

review of apprenticeships by

Doug Richards and a further

consultation exercise. further

information on the programme

is available at https://www.gov.

uk/government/consultations/

future-of-apprenticeships-in-

england-richard-review-next-steps

matthew hancock mP, minister

for Skills and enterprise, said:

SRA SIgnS uP foR TRAILBLAzeRS APPRenTIceShIP Scheme


LegAL newS

“National Apprenticeship

Week is designed to celebrate

apprenticeships and the positive

impact they have on individuals,

businesses and the wider economy.

“We want to see apprenticeships

become the new norm for all

ambitious young people and

employers who are dedicated

to growing their own talent and

increasing the skills base of

the nation. I would like to thank

everyone who has been involved in

Trailblazer for their commitment to

apprenticeships and traineeships.”

further information on national

Apprenticeship week is available at

https://www.gov.uk/government/

news/the-start-of-a-great-national-

apprenticeship-week-2014 n

occuPATIonAL hAzARDS: PoweRfuL men ARe much moRe LIKeLy To Be unfAIThfuL To TheIR SPouSeS

Victoria milan, the dating site

for married or attached people

who are looking for an affair, has

just released the results of a survey

of 2,500 of its members. The

subject of the survey? how power

and cheating are related. every

year politicians, businessmen,

and royals are caught cheating;

does this mean that power and

infidelity go hand in hand?

The majority of the men who

participated in the survey—81%—

think that having a powerful

position makes men more likely

to cheat due to the inherent

stress that comes with powerful

positions and the lack of quality

time available to spend with the

family. In contrast, only 26% of

cheating women who participated

in the survey think that power can

influence a woman’s faithfulness

directly; women instead thought

that typically only power in

conjunction with other factors

influenced women to cheat.

The majority of women agreed

that power attracts them, however.

78% of the female respondents

of the survey indicated that they

would like to have an affair with a

powerful man. on the other hand,

only 42% of male respondents

felt the same way, answering

that they would like to have an

affair with a powerful woman.

Sigurd Vedal, ceo and founder of

Victoria milan, states: “Women has

always demonstrated more control

over stressful situations in day to

day life than men have; whether you

call it multi-tasking or something

else, they are more clever and

open-minded, and this leads to

good stress management. Men,

on the other hand, are more likely

to cave to pressure and this leads

to more infidelity and escapism.”

Surveyed men and women also

chose the top five powerful

career choices most likely to

cheat: 42% chose politicians,

followed by 21% picking

businessmen, 19% brokers,

10% bankers, and 8% judges

as most likely to be unfaithful.

“Regarding the top five positions,

brokers jumped into the top three

thanks to Leonardo DiCaprio and

The Wolf of Wall Street, and it’s

most likely that politicians are

still number one after so many

political scandals over the years—

most recently that of Hollande,

President of France.” comments

extramarital dating site founder.

Victoria milan is one of the world’s

leading discreet social networks

for men and women seeking a

secret affair. The service was

launched by happily married

media executive mr. Sigurd Vedal

in 2010, and has today become

one of the world’s fastest-growing

and leading social networks for

discreet extramarital affairs. n

Birmingham Law Society

International committee

supported by uKTI presented the

first in a series of seminars looking

at topics within international

fraud for 2014. The seminar

targeted commercial businesses

already working internationally,

or with aspirations to do so.

Satinder hunjan Qc chaired the

event, which took place on friday

14th march and attracted over

100 delegates from a wide variety

of law firms, businesses and

organisations. Speakers included

mark Surguy from eversheds’

fraud & Investigations group, and

no5 speakers michael Duck Qc,

Paul marshall and Alexander Stein.

The event was sponsored

by wesleyan for Lawyers,

expert Investigations and

midlands fraud forum.

chairman of Birmingham Law

Society’s International committee

Tony mcDaid commented:

“Birmingham continues to

develop its profile and presence

internationally, the city and

surrounding regions boasts

some of the countries leading

businesses, international Law

firms and barristers chambers.

The Birmingham Law Society

and its International Law

Committee, assisted by UKTI

have drawn upon an array of

talent and experience from the

regions legal experts to produce

an insightful conference on

a pivotal topic that will assist

Birmingham in its continued

international development.” n

BIRmInghAm LAw SocIeTy InTeRnATIonAL commITTe


one of the key impacts of the Jackson reforms has been

the effect of the electronic Data Questionnaire (eDQ) and

Disclosure Report, requiring consideration of all aspects of

electronically Stored Information (eSI). The key risk here is the

potentially adverse impact that incorrect assumptions (with

regards to the costs and time elements of the e-disclosure

process) may have on the recoverability of costs. This has

become increasingly more challenging as today’s data

landscape involves much more than the collection and review

of unstructured data (i.e. emails, word, spreadsheets, pdf files

etc.). Structured data (i.e. databases such as trading systems,

accounts, cRm), smartphones, audio and instant messaging

are all increasingly common ‘data areas’ that require highly

specialised human and technological resources

In completing the eDQ, most lawyers are moving into a highly

complex technological area where most will be dependent

on an e-disclosure specialist for the advice upon which costs

will be calculated, managed and reported. consequently,

the scoping and costing of data sources, processing,

filtering, review and production must happen much earlier

in the litigation process than ever before. new protocols will

undoubtedly assist in this area, but only to a point.

for the client and their legal advisors (both internal and

external), this has meant much greater focus on eSI i.e.

what potentially relevant data types are stored, where, why,

and how to best secure, retrieve, review and produce them.

Legal hold, Information governance, Records management

and e-disclosure are beginning to get onto the Board’s

agenda with a view to helping reduce legal spend and, in

regulated industries, reduce and negate damaging fines and

reputational risk.

Review costs have remained the most expensive component

of the e-disclosure process and clients and law firms law

firms have tried to decrease the review costs by using Legal

Process outsourcing (LPo) companies to conduct the first

(and sometimes second) tier document review. The next step

in the drive for time and cost reduction is the application of

intelligent software solutions such as computer Assisted

Review (cAR) to assist the lawyer with the review tasks

currently performed by paralegals or more junior lawyers.

cAR is just the next generation of technology to assist the

lawyer achieve better quality work product in less time and

with a lower cost. many of the arguments against cAR

reflect a mistrust of the technology being unable to do what

a human can; however, the same argument was also once

made against the use of any form of database to support

document review.

The introduction of cAR to assist law firms and their clients

in helping prioritise and conduct document review more

efficiently is changing the legal business model. It has in the

main been viewed with caution by the larger law firms whilst

mid-size and specialist firms have adopted it more readily.

when applied properly, cAR does substantially reduce the

time and cost of the review exercise, and as the intelligence in

the software will keep learning, the work product is likely to be

more consistent and of higher quality. These are benefits that

are too substantive for a client to ignore and cAR technologies

are increasingly being taken in-house to reduce the time and

cost of the e-disclosure process.

many organisations are beginning to consider how to best

implement a strategic approach to e-disclosure including:

• whether they should take technology in-house,

outsource (and if so to whom)

• Apply cAR in their legal processes

• Leverage LPo resources

• Address wider data sources such as Audio,

Databases and Smartphones

we are seeing corporate clients adopt innovative approaches

and new technologies to achieve more efficient, cost effective

methods of managing, retrieving and producing data with

particular focus on the costs and time of the legal and review

phases.

ultimately price will always be a factor in any business

decision, and has often been the key factor in the selection of

e-disclosure suppliers. Post Jackson, price must be balanced

against the risk of inaccurate / incomplete scoping and its

ramifications on the time, resources, cost, quality of work

product and ultimately the ability to recover costs. n

The new regime for budgeting of litigation costs gives the potential for costs to be wholly or partly irrecoverable if not properly budgeted and approved. Therefore it is vital to ensure that the e-disclosure costs submitted by parties to litigation are duly considered and submitted in accordance with their obligations under the civil Procedure Rules.

RIchARD coVeLL | DeLoITTe LLP | T: 0161 455 6098 | [email protected]

Jackson Bytes

foRenSIc AccounTIng


Jackson Bytes

most of us would seek a reimbursement, replacement or

some other form of compensation if we weren’t happy with

our purchase.

The corporate world works in the same way in the form of

value adjustments, albeit with a few extra complexities thrown

into the mix.

And, as the economic recovery picks up speed and

ambitious growth plans come to the fore, post transaction

value adjustments – the corporate form of transactional

compensation - are likely to become more frequent.

Typically value adjustments arise either via the completion

or earn out accounts process, or under the warranty period

noted in the Sale and Purchase Agreement.

Potential claims arise from a Buyer’s position where they could

seek a value adjustment from the total purchase consideration

paid, or indeed additional consideration payable by way of

deferred consideration to the Sellers.

A maximum Buyer value adjustment often comes from

misrepresentation or fraud claims against the Sellers; while

a minimum value adjustment usually arises from breach of

specific warranties provided by the Sellers.

I have seen many claims won or lost from both a claimant

and defendant position on the strength of the evidence, which

often involves issues of disclosure and who said what to

whom and when. As a forensic expert, my advice is always

to involve professionals at an early stage to address issues of

liability and evidence before proceeding to quantum.

How mucH can I get back?

This is often the Buyer’s question. The answer broadly depends

on whether the liability evidence dictates a misrepresentation

or fraud claim, or a specific breach of warranty.

normally when determining quantum the amount claimed is

calculated as the difference between the value of the company

as warranted (i.e. what it was worth on the basis of the

warranted facts) and its actual value at the date of completion

(i.e. what it was worth on the basis of the true facts). however,

if misrepresentation or fraud is proven, quantum increases to

include all consequential losses.

A Buyer will consider the loss to be the value of the breach

itself, or a multiple of the value of the breach if the price

agreed upon was based on a multiple of profits. however,

the quantifications are not this simplistic in reality and what

is really required is an assessment of the valuation of the

company based on the true facts being known at the time the

deal was transacted which is never straightforward.

If, from a Sellers position, it can be shown that the Buyer would

have paid a similar price even if the full facts were known, e.g.

if it were a special purchaser who had reasons for acquiring

the company at a premium, it could be argued that no loss had

been suffered by the breach.

common cHallenges on quantum

over the last few years, claims have often related to the

‘commonly’ seen Sellers warranty that ‘since the date

of the last audited accounts, there has been no material

deterioration in the turnover or trading position or prospects

of the company’.

In assessing the quantum of loss, it is important to determine

whether the decline in performance after completion was

indicative of a decline in maintainable profit or just a temporary

drop. In addition, if sales and profits have been recognised in

earlier periods, it should be investigated as to whether this

has been occurring over a number of years. If this is the case,

although the Buyer may have a claim for misrepresentation of

figures, the annual maintainable profitability and value of the

company may not be affected significantly.

Therefore, although liability may be proven, quantum of loss

may be negligible. In such cases, early assessment of the

claim is important so as not to waste time and professional

fees in pursuing a claim with no monetary benefit to the

claimant.

are tHese claIms goIng to Increase?

The price paid on a transaction is often the Buyer’s perception

of its value after any commercial bargaining, compared to the

Seller’s view of what they perceive the value to be.

In addition to the value, consideration is often adjusted for

working capital, net debt and an earn out based on earnings

after completion. This focuses the Buyer’s mind on asking,

‘have I got what I have paid for?’. The inclusion of what is

said on the ‘package’ is often written into Seller’s disclosures

and warranties, the accurate completion of which is often

a commercial bargaining point. As corporate mergers and

acquisitions activity increases, commercial bargaining is

also expected to increase, which in my view will result in an

increase in these value adjustment claims. n

what happens when you purchase an item and you find it’s not exactly what is said on the packaging?

SAT PLAhA | foRenSIc SeRVIceS PARTneR | BDo LLP | T: 0121 352 6210 | [email protected]

Transactions That Go Wrong

foRenSIc AccounTIng



In a situation where the parties fail to reach agreement during

the negotiation period over the value of assets and liabilities in

the completion accounts, or the quantum of the earn-out profits,

an experienced, independent accountant is the natural choice to

determine the items in dispute.

There are a number of benefits from using an independent

accounting expert to issue a determination:

• An expert determination is a confidential process and the

result is private between the parties. This is in contrast to

the publicity that typically accompanies litigation and court

hearings.

• where the commercial dispute relates to a series of

accounting related issues, a more efficient and informed

process can often result from the matter being determined

by an accounting specialist rather than by a court.

• In general, the time taken to obtain a decision from an

independent expert is much quicker than litigation. The

independent accounting expert will also involve the parties in

establishing a timetable to allow the determination to be issued.

• An expert determination is a lot less costly than litigation.

Although the parties may still decide to appoint lawyers and

expert advisers, the time factor should mean that the parties’

costs will be less.

• There can be flexibility in the precise specification of

the determination framework from case to case. Typically,

following appointment of the independent accounting

expert, there will be a dialogue between him or her and the

parties as to the process to be followed.

• The expert’s decision, save for manifest error, is final and

binding on the parties, giving them absolute certainty and

the chance to move forward from it.

however, there are also a number of potential pitfalls that need to

be avoided:

• The independent accounting expert must have the

experience required to deal with the process and the issues

in dispute, as the whole point is to be able to reach an expert

determination.

• Both parties need to agree to the terms of the independent

accounting expert’s engagement before the determination

can begin. This can often represent the first area of difficulty

as the reason that the independent accounting expert is

being used is because the parties have been unable to settle

the dispute between them by negotiation.

• The independent accounting expert is unable to force the

parties to sign up to a process that one or both are unhappy

with. In the most extreme cases, one side may disagree with

the most reasonable suggestions purely because the other

side has agreed to them.

• Alternatively, the parties may be unable to agree exactly

what is in dispute and, therefore, the scope of the

independent accounting expert’s work. for example, there

may be questions about whether items have been validly

disputed in accordance with the process set out in the sale

and purchase agreement.

The ability to navigate through the potential pitfalls can depend

upon the skill of the independent accounting expert to manoeuvre

the parties to a position of agreement on process and scope. In

order to do so, the independent accounting expert must gain the

trust of the parties. The parties must trust that he or she is fair,

even-handed and open in relation to the process.

In conclusion, to maximise the benefits of an expert determination

process it is crucial that a suitable qualified and experienced

independent accountant is appointed. failure to do so can lead

not only to a flawed decision, but to significant additional costs

being incurred as a result of inexperience in dealing with the other

potential pitfalls of the determination process.

KPmg forensic professionals have significant and wide range

of experience in preparing and reviewing completion accounts,

assisting parties in completion accounts dispute and expert

determination processes. we can therefore advise on all aspects

of the completion accounts process and assist our clients in

dealing with the issues that arise.

KPmg forensic professionals have also been appointed as the

independent expert accountant to conduct an expert determination

on numerous occasions. our team is represented on the Institute

of chartered Accountants in england and wales’ (IcAew) list of

independent expert accountants. n

It is common for business sale and purchase agreements to provide for dispute resolution through the use of an independent accounting expert.

John RouSe | DIRecToR | KPmg LLP | T: 0115 935 3419 | [email protected]

Expert determinations – the benefits and pitfalls

foRenSIc AccounTIng

foRenSIc AccounTIng


The statistics - gDP and so forth- paint an increasingly rosy picture

but do not tell the whole story. we all recognise the importance of

confidence, that essential yet often fragile component of any recovery.

on this more subjective benchmark, things also look good. every

quarter, we at grant Thornton together with the Institute of chartered

Accountants in england and wales produce the Business confidence

monitor report. our last update, in Q1 2014, showed a record high for

the confidence Index.

As a forensic accountant, I just can’t stop myself analysing and measuring.

I find it interesting to see how our work changes at different stages of the

economic cycle. I’ll illustrate this by referring to business valuations: an

important area for accountants and for many of you lawyers too.

During recent difficult times, we saw a higher level of disputes following

corporate acquisitions. we often quantify losses in breach of warranty

claims, as the difference between the value as warranted and the true

value. with an improvement in the economy, we anticipate a greater

need to value businesses for transactional purposes and less appetite

to look back at what went wrong.

Another impact is on business valuations that we do in divorces. In

our recent matrimonial Survey, three quarters of family lawyers said

that couples have delayed divorce proceedings to see out the difficult

economic times. Perhaps we will now start to see more divorces,

“conscious un-couplings” or otherwise!

we are undertaking valuations as our clients incentivise employees

under the “employee shareholder” status that was implemented

in September 2013. Such employees give up certain statutory

employment rights to achieve capital gains tax exemption on the

future sale of shares. This becomes more attractive as confidence

improves.

Locally, we are increasingly speaking to businesses about the impact

of hS2, including compensation and relocation.

So, times change and the key is to capture the zeitgeist and adapt our

services to meet the changing needs of our clients. As true now as it

ever was, for accountants and lawyers alike. n

The economy is in better shape.

STeVe ThomPSon | DIRecToR | gRAnT ThoRnTon

Business valuations - time for a change?


If the answer to this question is ‘not really’ then it’s

probably very unlikely that you have considered the

benefits of a client engagement programme for your firm

– in other words, putting systems in place to collate the

views of people who matter most and validating that you

deliver what you promise.

Dave Ruston, Associate Director at Research by Design

observes “we find that practioners in professional

services often excel at engaging clients in technical

dialogue about a matter. They’re not so great at taking

a step back to really listen, analyse the vocabulary of

clients and understand what it might mean for their

business offer. That’s what differentiates a great brand

from just a good brand”.

wHere does clIent engagement

fIt Into your strategy?

In an increasingly ‘data heavy’ business world, many

organisations now realise that they don’t have systems in

place to extract the necessary insights from this information.

To be truly effective, ‘listening campaigns’ need to be built

into the core of organisational planning. occasionally, these

systems will also throw up unforeseen issues that need

emergency response (e.g. extremely dissatisfied clients at

risk of loss). As work published by the Legal ombudsman

highlighted last year, there is a strong business case for

improving complaint handling within firms.

Lindsey nadin, Research manager, says “It’s no

longer acceptable to consider client engagement as a

secondary thought. Brands that don’t have this built into

the DNA of their core strategies will not keep pace with

changes to the marketplace”.

A significant component of this model is communicating

that you have listened and spelt out what has been

done in response. The most successful brands in any

sector can clearly demonstrate ‘you Said, we Did’.

we are working with leading firms in Birmingham who

recognise this and are setting the pace with their client

engagement strategies.

bIrmIngHam law socIety are lIstenIng

Birmingham Law Society are also leading by example -

their members are effectively their clients - by launching

their inaugural membership survey in December

2013, delivered in close partnership with Research by

Design, also based in Birmingham. over 300 members

participated from all across the legal profession and

region.

The results of the listening exercise have given BLS

invaluable insights into what makes members tick -

what they really value about their membership and

what additional elements, if any, they would like to see

included in their package.

overall, the Society is perceived by members to be

traditional, very member-focussed, helpful and feels

relevant for members. The benefits package is felt to be

appropriate although there is an appetite for even more

customised cPD and networking events.

what is clear is that members often have very different

reasons for joining the Society initially. Those in firms

outside Birmingham city centre join to benefit more from

support and advice services, whereas those based in the

city are more likely to have joined for career progression

opportunities.

engagement tools also help us to test new ideas and

propositions, checking the interest levels of prospective

new audiences. for example, we also gained feedback

on a new initiative, the proposed members’ helpline,

which suggests that engaged members feel that they,

and their peers, would benefit from. Those who currently

say they would find a members’ helpline most useful

are likely to be sole practitioners, individual members,

younger members and those working in the city centre.

How can I fInd out more?

If you would like to learn more about our approach to

enabling client engagement in professional services

then please visit our website www.researchbydesign.

co.uk or call David Ruston or Lindsey nadin on 0121

643 9090. In conjunction with BLS, we are also planning

a seminar to discuss these issues later in the spring, so

watch this space! n

have you ever wondered what your clients say about you after a meeting? we mean, what they really say?

DAVID RuSTon | ReSeARch By DeSIgn

Genuinely listening to clients and members

The most successful brands in any sector can clearly demonstrate ‘You Said, We Did’

feATuRe

course List April - June 2014

course highlights

full details of all our seminars are advertised on our website and regular emailers are sent out to our members. we are currently in the process of confirming further seminars, debates and conferences; if you have any specific training

requirements or would like to suggest future topics, please do email me at [email protected]

Please see our website for further seminars: www.birminghamlawsociety.co.ukTelephone: Fiona Newby, Learning and Development Co-ordinator on 0121 230 1709 email: [email protected]

Management Course Stage One (MC1) April Session

Date: Tuesday 8 April 2014

Time: 9:15 registration and breakfast, 9:30 - 17:30 workshop,

*lunch is provided

Venue: Shoosmiths, 2 colmore Square,

38 Queensway, Birmingham, B4 6BJ

CPD: 7 hours cPD Accredited by the SRA

Fees: £170 + VAT for members, £210 + VAT for non-members

Speaker: Doug Robinson

Why MC1?

It’s compulsory for all solicitors, to be completed within

the first three training years post qualification.

Why this MC1?

you will get a clear understanding of:

• the challenges facing law firms in the current economic climate;

• law firm finances, in a way that will help you understand

how your actions affect profit and cash flow;

• how you can change your behaviour to contribute more

effectively to your firm’s performance and financial results;

• how you can help your firm to develop a competitive advantage; and

• the key changes affecting law firm regulation and the

code of conduct effective 06 october 2011

The course features a realistic law firm simulation

allowing participants to see exactly how to

apply learning back into the workplace.

Course Content

The day is split into three sections covering

core elements of the SRA’s syllabus:

Managing Finance

• Business planning

• Key Performance indicators

• funding and solvency

• understanding profit

• controlling costs

• working capital control and cashflow

Managing Clients

• understanding what motivates clients

• Delivering what clients want in the way they want it

• The retainer and solicitors’ professional obligations

• organising client relationships effectively

Managing People

• Delegation and managing other people’s work

• effective teamwork and decision-making processes

• how to get the most from a meeting

• motivation and performance appraisal

using a model firm, participants will assess the impact of

management decisions, develop their own approach to good

management, and share ideas on current best practice. The

course will also review the SRA handbook and changes to the

Solicitors’ code of conduct effective 06 october 2011.

Date Time cPD hrs course Title Area Speakers fees £ members non members

08-Apr-14 09.15 - 17:30 7 Management Course Stage One (MC1) Management Doug Robinson £170 + VAT £210 + VAT April Session

09-Apr-14 14:45 - 17:00 2 Private Client Update 2014 Private Client Matthew Hansell £55 + VAT £70 +VAT John Grundy

09-Apr-14 17:30 - 19.30 N/A An opportunity to meet ACAS Conciliators Employment Malcolm Boswell, Free Free Regional Director of ACAS

08-May-14 17:30 - 19.30 1.5 Lawful Investigations in the Legal Sector Regulatory David Kearns Free Free

20-May-14 13:00 - 16.30 3 Tackling Fraud and Cybercrime - Regulatory Allison Mathews £99 + VAT £115 +VAT Protect your Practice

10-Jun-14 13:00 - 17:00 3 Solicitors’ Accounts Rules Update - Management Linda Lambert £99 + VAT £120 + VAT Half day session Support Staff: £55 + VAT Support Staff: £75 + VAT

Learning & DevelopmentProfessional Services

BIRMINGHAM LAW SOCIETY


Key Outcomes

As a result of attending the course, participants will be able to:

• appreciate the importance of planning;

• understand financial data and key performance indicators;

• act confidently on information contained in financial reports;

• recognise what impresses clients and eradicate what upsets them;

• organise their relationships with clients to deliver great service;

• delegate more effectively; and

• manage meetings and make decisions which

lead to improved performance.

Speaker

The speaker Doug Robinson is a director of Kinch Robinson Limited,

the accredited course provider. he is a chartered Accountant who

has worked exclusively in the field of professional development

since 2003. Doug teaches management course Stage 1 and 2,

PSc financial and Business Skills and a range of other financial

and management courses aimed specifically at lawyers in

practice. his clients include top 50 uK law firms, regional firms

and local Law Societies. he is a consultant to the college of Law,

regularly delivering training on public and in-house courses.

If this is a compulsory course for you, please ensure you attend for

the full day to comply with SRA requirements. Participants cannot

claim for attending the course if they arrive late or leave early. If the

SRA ask whether a participant has attended the course, notes of

arrival and departure times will be passed on to them; so please

ensure that you arrive at the venue on time. If you arrive late or

have to leave early you may be required to repeat the course.

Private client update 2014

Private Client Update 2014

Date: wednesday 9 April 2014

Time: 14:45 registration & refreshments,

seminar from 15:00 to 17:00

Venue: mills & Reeve LLP, 78 - 84 colmore Row,

Birmingham, B3 2AB

CPD: 2 hours Accredited by the SRA

Fee: £55 + VAT for members, £70 + VAT for non-members

Why attend?

This seminar will update busy practitioners on private client

law and tax and will cover some of the latest ideas on estate

planning, wills, probate, wealth protection and recent case law.

This seminar will cover:

• Top Inheritance Tax Tips and Ideas

• wills – using will Trusts Latest contentious Trust and Probate cases

• Lasting Powers of Attorney update

• Law Society wills and Inheritance Quality Scheme and the

STeP code for will Preparation

• Simplification of the Taxation of Trusts

• other topical private client updates

Speakers

Matthew Hansell

matthew is head of Private wealth at mills & Reeve LLP, solicitors.

matthew is a member of STeP and Sfe and is a member of

the capital Taxes committee of the Law Society. he frequently

writes and lectures on private client issues and acts for a wide

range of entrepreneurs and owner managers of businesses

advising them on inheritance tax planning, wills and trusts.

John Grundy

John is a Private client Partner at mills & Reeve LLP, solicitors.

John is the current chairman of the STeP Birmingham Branch

and he sits on the Programme and Technical committee. John’s

work includes estate planning, drafting and advising on wills,

Trusts, Powers of Attorney, Administering estates and Trusts and

protecting assets for the benefit of the next generation. he acts

for both uK based and international clients. John is recognised in

chambers 2013 as the “Rising Star” in the Birmingham region.

An Opportunity to meet ACAS Conciliators

Date: wednesday 9 April 2014

Time: 17.30 for Drinks and networking 18:15 Presentation

Venue: no5 chambers, fountain court, Steelhouse Lane,

Birmingham, B4 6DR.

Fees: free event - Booking Required

CPD: n/A

Speaker: malcolm Boswell, Regional Director of AcAS.

An opportunity to meet AcAS concilliators

The employment Tribunals (early conciliation: exemptions and

Rules of Procedure) Regulations 2014 come in to force on the 6th

April 2014. under the new regime, on or after the 6th may 2014

potential claims to the employment Tribunal need to be lodged

with AcAS who will try to conciliate within a fixed period of time.

If unsuccessful, they will issue a certificate enabling the

claim to proceed to the employment Tribunal. The changes

represent further significant reform of the eT system

and are part of the package of measures included within

the enterprise and regulatory Reform Act 2013.

BLS have agreed with AcAS that it would be beneficial for

AcAS conciliators to meet with members of BLS to get to

know each other and discuss the changes at 5.30 on 9 April

for drinks and nibbles at no5 chambers. There will be a brief

presentation from the Regional Director of AcAS, malcolm

Boswell at 6.15pm. This is a really good opportunity for lawyers

who advise their clients on Tribunal cases to get to know the

conciliation staff and to establish what AcAS will be expecting

from advisors and what advisors will be expecting from them.



Lawful Investigations in the Legal Sector

Date: Thursday 8 may 2014

Time: 17:30 registration 18:00 - 19:30 Seminar

Venue: eversheds LLP, 115 colmore Row, Birmingham, B3 3AL

CPD: 1.5 hours cPD Accredited by the SRA

Fees: free

Speaker: David Kearns

expert Investigations is a nationwide commercial Investigations company

that has worked within the legal industry for 13.5 years, we understand

how important it is to inform and educate the legal profession on the lawful

investagative approaches that can be taken, especially due to the recent

media coverage on ‘rouge investigating’,when dealing with issues such

as theft, fraud, false absenteeism, fraudulent claims and employment

issues (breaches of contract,restrictive convernance, false absenteeisms).

David Kearns, managing Director of expert Investigations is a former

Police field Intelligence Detective, and prides the company on

delivering high quality and lawful investigations. David delivers the

presentations - so you can be confident in the knowledge you will

be getting first hand, experienced, lawful and reliable information.

Why attend?

our presentations are always very well received due to their

interactive nature plus delegates will examine real life case studies

and video footage plus see the equipment we use to carry out

covert surveillance and investigations. The presentation will aim

to cover: Some legislation; Legal investigative methods - how

hacking is noT lawful; The alternative investigation routes to a

successful outcome; how to manage your clients’ expectations

as they search for a positive outcome to their issue.

Tackling Fraud and Cybercrime – protect your practice

Date: Tuesday 20 may 2014

Time: 13:00 registration and lunch 13:30 - 16:30 seminar

Venue: yorkshire Bank, Temple Point, 1 Temple Row

Birmingham, B2 5yB


Fees: member: £99 + VAT, non-member: £115 + VAT

Speaker: Alison matthews

Legal practices are at risk of fraud, not only from clients/third parties but

from employees and from suppliers (do you vet your employees? who

checks the invoices are correct?) Are you familiar with the threats and do

you have effective systems in place to protect your practice and your staff?

what about your clients? Is their data at risk of being lost because

your computers have been hacked? gchQ has referred to legal

practices as representing the “soft underbelly” through which hackers

can try to access the systems of the client/target organisation. Their

director reports that the uK is experiencing ‘industrial espionage on an

industrial scale’. David willetts, the universities and Science minister

has said that cyber attacks are a threat to all businesses today.

Do your staff know how to avoid being “scammed”? Do they know

what “spearphishing” is? Are you cyber Streetwise and are you familiar

with the 10 steps to cyber Security? If you are using the cloud, have

you considered the risks, outsourcing issues and the SRA’s guidance?

This seminar builds on existing AmL and data protection

knowledge to highlight fraud and cyber crime risks for legal

practices and provides practical suggestions as to how to

protect you, your employees, your clients and the practice.

Alison matthews is the author of the AmL Toolkit and the Data Protection

Toolkit published by the Law Society. She chaired the Law Society’s

money Laundering Taskforce until August 2012, having been a founder

member. Before becoming the mLRo and Data Protection compliance

officer for Irwin mitchell LLP, she was the Investment Business executive

in Professional ethics at the Law Society/SRA. She now has her own

training and compliance consultancy, Alison matthews consulting Ltd.

She lectures for all the uK Law Societies as well as the Isle of man Law

Society and cLT and is a regular contributor to various legal publications.

Solicitors’ Accounts Rules Update - Half day session

Date: Tuesday 10 June 2014

Time: 13:00 registration & lunch, 14:00 - 17:00 seminar

Venue: Shoosmiths, 2 colmore Square, 38 Queensway,

Birmingham, B4 6BJ


Fees: member fee for fee earners: £99 + VAT,

member fee Support Staff: £55 + VAT,

non-member fee for fee earners: £120 + VAT,

non-member fee Support Staff: £75 + VAT

Speaker: Linda Lambert

As you will know, the Solicitors Regulation Authority’s Accounts

Rules have been substantially updated and these updates included

new rules, a new regime and new roles. The rules were applicable

from october 6th 2011and the new roles that also came into place,

coLP and cofA, are in place from January 1st 2013. This half day

course covers the main rules regarding the handling and recording of

client and office monies and includes the new rules. The aim of the

course is to ensure those attending are made aware of the current

regulations with regard to use of client’s monies for today’s Legal

Practice.This course will cover the following topics: client Account

and client money; use of client Account; withdrawals from client

Account; Interest Rules; Bank Reconciliations; what is a Bill?; office

monies and Professional Disbursements; Accountant’s Report

Speaker

Linda Lambert: Linda lives and works in the west midlands where she

came to read Accountancy at Birmingham university. After obtaining

her degree she then worked in the banking and financial sector and as

a trainee chartered accountant before joining the legal profession some

25+ years ago. Linda has in her career worked as a sole Legal cashier

for a small city practice, a finance manager for a 14 partner provincial

firm and as a Practice manager before working freelance. She has

experience of accounts systems from hand written to computerised

and has been responsible for introducing new systems in the practices

she has worked in, in particular dealing with management information

and credit control. Linda has trained as a lecturer for further education

and is currently the Institute of Legal finance and management (ILfm)’s

lecturer in ‘The Solicitors Regulation Authority’s Accounts Rules’, the

tutor for the ILfm’s Associate Accounts course, as well as working as

a freelance Legal cashier, mainly in Birmingham. Linda has also acted

as a consultant for a two partner firm of solicitors in worcestershire

and more recently with a medium sized worcestershire practice (for

maternity cover) with special emphasis on Risk and compliance work.


In Santander UK Plc v R.A. Legal Solicitors [2014] EWCA Civ 183 it was

held that a conveyancer’s careless performance contributed to the loss

suffered by Santander when completion monies were misappropriated

by the vendor’s solicitor (“Sovereign”). The court refused to grant RA

Legal (“RA”) relief under section 61 of the Trustee Act 1925 and found it

liable to the lender for the loss of the mortgage funds.

RA acted for the lender and for the lay purchaser in the purchase of a

residential property. The transaction was unremarkable save that the real

vendor was entirely unaware that the property had been sold on her behalf.

Similarly RA was unaware that the transaction was not a genuine one.

RA was due to exchange contracts and complete the transaction

simultaneously on 29 July 2009. however, it released funds to

Sovereign the day before on 28 July prior to exchange of contracts.

There was no letter notifying Sovereign that the money had been

released nor any requirement that the funds were to be held to

the order of RA. RA did, however, check with the Law Society that

Sovereign was registered as a law firm.

The court emphasised the fundamental principle that solicitors who hold

a loan advance on trust until completion necessarily commit a breach of

trust if they part with the advance otherwise than upon completion.

In his judgment, Lord Justice Briggs undertook a forensic examination

of the standard practice for completion by post, the purpose, meaning

and effect of the standard Requisitions on Title and the non-standard

replies by Sovereign. he concluded that the following departures from

best practice were connected with the lender’s loss:

1. making and receiving inadequate requisitions on title

Sovereign answered “confIRmeD” to the whole of Paragraph 4(B) of the

Requisitions which raises a series of questions about the discharge of the

mortgage including details of the terms of the undertaking to be provided.

under Paragraph 5 (A) regarding the arrangements for completion,

Sovereign answered “foRmuLA B”. This was a meaningless answer in

relation to completion as it was a reference to a standard method for

exchange of contracts. RA did not question any of these inadequate

replies, nor did they raise any supplemental Requisitions.

2. failure to obtain the vendor’s solicitors written

commitment to follow the completion code before

transferring the completion money to them

Sovereign did not answer Paragraph 7(D) of the Requisitions where

they were asked to confirm that they would comply with the Law

Society completion code. This meant that the completion money

was transferred to Sovereign the day before completion without RA

imposing any written obligation upon Sovereign to hold it to its order.

3. failure to appreciate that completion had gone

seriously wrong when no confirmation that the mortgage

had been discharged was received in the post

The fact that their client had not received the keys by 4 August 2009, and

they had not received the mortgage discharge form, did not alert RA to

the possibility that there was a problem with the transaction. RA’s post

completion correspondence with Sovereign was confused in that on the

one hand they stated that the sale had been completed and on the other

they served a notice to complete on 10 August. The completion monies

remained in client account from the date of purported completion until

the misappropriation took place on 13 August.

his Lordship was also very critical of the practice of submitting an

unqualified certificate of Title before investigation of title had been

completed. RA had yet to inspect a 1986 transfer when it sent off

the coT. This was on the basis that it could halt the transaction if a

defect in title was subsequently discovered. Leading counsel for RA

submitted that this practice was common amongst conveyancers

to minimise delays by lenders in releasing mortgage monies. This

explanation was noted unenthusiastically by his Lordship who

regarded the practice as a deliberate misrepresentation to the lender

but not one which in this case had contributed to the loss.

Ironically, his Lordship was prepared to assume that even if RA had

followed best practice the fraud would probably have succeeded but

that was not in his view the legal basis for granting relief under s.61.

whatever pressures are imposed by clients or by others in the

chain, conveyancers should adhere meticulously to the correct

procedure. close attention should be paid to the Requisitions and

to the arrangements for completion. The fact that duties are owed

to two clients, namely the lay purchaser and the lender, can often

be overlooked in the strain of complying with unrealistic timescales.

This judgment provides a stark reminder that residential

conveyancing is not a purely administrative process. It is a legal

transaction upon which legal advice and expertise is required.

As Lord Justice Briggs stressed: “Departure from best practice by

making inadequate requisitions and accepting inadequate replies

before transferring completion money was serious and consequential”

Trusting other solicitors in order to assist your clients would sadly no

longer seem to be an option. n

Jayne Willetts is also a director of Infolegal Ltd – providing the

Colpline practice advice helpline and consultancy

advice for law firms – www.infolegal.co.uk

not without reason does conveyancing work remain high risk for both the firm and its indemnity insurers alike. The importance of following best practice at all times was highlighted in a recent case in the court of Appeal.

JAyne wILLeTTS | SoLIcIToR ADVocATe | JAyne wILLeTTS & co | SPecIALISTS In PRofeSSIonAL ReguLATIon

Mortgage Fraud Update

ReguLATIon RePoRT

west midlands-based

QualitySolicitors Talbots

has successfully attracted yet

another high-profile name as it

looks set to grow again in 2014.

Adrian mabe joins the firm as head

of Trusts and estates bringing over

30 years of experience in this area.

“Last year, we grew annual

turnover by 12% and one of

our undoubted successes

was Trusts and Estates” says

martyn morgan (Director).

Adrian is a chartered Tax

Adviser and a member of both

The Society of Trust and estate

Practitioners and The charity

Law Association. he advises high

net individuals how to structure

their wills, trusts and other

personal affairs to maximise tax

efficiency and asset protection.

“The area of Wills, probate and

estate planning is not immune from

the many challenges facing the

legal profession today. It is exciting

to be joining QualitySolicitors

Talbots as they have demonstrated

their ability to adapt and prosper

in the face of these challenges”.

Adrian is another high-profile

name for QualitySolicitors Talbots

following Peter Adkins, who heads

up the firm’s Dispute Resolution

team based in Dudley. n


memBeRS’ newS

wesleyan Assurance Society is

celebrating after it was named

as one of the uK’s top performers

for customer satisfaction.

The Birmingham-based financial

services mutual won the award

for Quality Service Provider of

the year at the uK customer

Satisfaction Awards.

The awards, held by the Institute

of customer Service, recognise

and reward organisations that

deliver excellent and innovative

service to meet customers’ needs

and enable them to thrive.

wesleyan, which provides specialist

advice and products for doctors,

dentists, teachers and lawyers,

was praised for its commitment

to supplying quality service to

its professional customers.

clive Bridge, group operations

Director at wesleyan, said: “We

are determined to put quality

and continuous improvement at

the heart of everything we do. In

recent years we have increased

our emphasis on this as we

strive to deliver the best service

for customers and colleagues

both now and in the future.

“In such a competitive

marketplace, it is vital we deliver

value and satisfaction to our

customers, so we are delighted

to have been recognised at

these national awards.” n

weSLeyAn wInS foR ITS QuALITy cuSTomeR SeRVIce

west midlands law firm

The wilkes Partnership

has advised on a complex

inheritance dispute, acting

on behalf of the successful

claimant. After a high court

trial a nephew has won back his

aunt’s entire £300,000 estate

after she disinherited him in

favour of her window cleaner.

cecil Bray, now 82, gave up

his retirement job to care for

his elderly aunt who, in return,

promised that she would

leave him her house in her

will. his aunt Julie Spalding

then subsequently prepared

wills leaving her estate to her

window cleaner breaking that

promise. Julie Spalding was

also alleged to lack the requisite

capacity to execute these wills.

The wilkes Partnership

presented several claims

to court and proved that

mrs Spalding promised to

leave her property to her

nephew. They also proved

that mrs Spalding lacked the

capacity to draft a valid will.

The case highlights the

importance of obtaining expert

legal advice when preparing a

will. for instance, the fact that

mrs Spalding’s advisors did not

obtain medical evidence that

she had capacity – arguably

essential when a will is being

made by an elderly person

– was key in the judge’s

decision that her amended

wills were not valid. n

wILKeS ADVISeS on comPLeX InheRITAnce DISPuTe

steve boyle, Harriet bramley and dave Parry from wesleyan assurance society collect the quality service Provider of the year award from Institute of customer service Vice President Jonathan cowie (far right) and awards host trish lynch.

mIDLAnDS LAwyeR STRengThenS BLAcK counTRy LAw fIRm

As legacy giving funds four out

of ten missions by the midlands

Air Ambulance, it remains an

extremely important income stream

for the charity. Therefore when a

will is contested and the amount

donated to the charity is affected,

it has adverse repercussions

for the life saving service.

Brian James, legacy officer for

midlands Air Ambulance, is

becoming increasingly concerned

about the rise in claims on

estates by family members

and other dependents, and is

urging solicitors to make sure

their clients’ wills are backed

up with detailed will files.

mr James comments: “Since

2006, statistics produced by the

High Court state the number

of people challenging a Will

has risen by more than 100 per

cent*, which is an alarming rate.

For Midlands Air Ambulance,

and other charities, claims on

estates by family members and

other dependents is a relatively

new but expensive problem.

“Until about a decade ago claims

upon estates were comparatively

rare and the courts could be

relied upon to take a robust

approach in rejecting such claims.

This has changed somewhat as in

my view, as I find some charities

are advised to settle such claims

by negotiation, which ultimately

affects the work of the charity. In

Midlands Air Ambulance’s case,

this affects the vital life saving

work of the service, as every

mission undertaken costs £2,500.

“Negotiated settlements usually

LegAcy gIVIng – IT’S ALL ReLATIVe

worcestershire law firm, Thomas

horton LLP, has added two

new members to its partnership,

increasing its Partner count to

seven across its three offices.

The appointments of Tina

circus, head of wills, Trusts

& Probate, and Lisa Johnson,

head of Property Services, are a

further sign of Thomas horton’s

continued development.

Tina has been at the firm for three

years. As a member of STeP (the

Society of Trusts and estates

Practitioners), she specialises in

the creation and administration of

trusts, estate tax planning, probate

administration and wills & court

of Protection work for the firm’s

private and business clients.

Lisa joined Thomas horton

last year and has contributed

enormously towards the growth of

the firm’s reputation for local and

memBeRS’ newS


involve a payment to the claimant

plus payment by the estate of the

claimant’s legal fees. Claims are

therefore a ‘one-way bet’ for those

disputing a Will, which has led to an

environment where Will contests are

actively encouraged by advisers.

“Defending such claims can be

problematic as apart from the

Will itself the defendant, who

is likely to have good cause to

stand their ground, has little other

evidence of the wishes of the

deceased, while the claimant has

the benefit of selective memory

and evidence from friends and

relatives as to the verbal intent of

the deceased. This is particularly

difficult where the claimant was

estranged from the deceased

at the time of drafting the Will

and reconciliation may have

occurred prior to their death.”

mr James elaborates on how

solicitors need to play their part to

ensure the number of contested

wills is reduced going forward.

“The will file of the solicitor who

drafted the will is important

evidence and, thankfully, these are

becoming more complete. It would

be very helpful for the solicitor

taking instructions to enquire in

greater detail the reasons for any

excluded relative or dependent

and note these on the will file.

“In addition, after 50 years of

age clients’ Wills should be

updated via a codicil every five

years, or after a major life event.

This will help to ensure the

lasting wishes of the deceased

are current and indisputable.

“Although Will disputes can’t be

avoided, by following a number of

simple steps, claims can be easier

to defend, helping to eliminate

any unnecessary heartache for all

involved. This will ensure the correct

recipients are benefitted, and where

a person has kindly named a charity

in their Will, such as the Midlands

Air Ambulance, that charity rightly

receives the donation it deserves.”

If you would like to find out

more about the midlands Air

Ambulance charity and for

details about the organisation’s

gifts in a will service, please visit

www.midlandsairambulance.com

or call on 0800 8 40 20 40. n

ThomAS hoRTon AnnounceS DouBLe PARTneR APPoInTmenT

national commercial property work.

going forward, Lisa will apply her

extensive technical knowledge and

Thomas horton’s ‘client-centred

service ethos’ in a wider role as

head of Property Services. n

l-r: lisa Johnson, richard Hull, tina circus and matthew Horton

Birmingham-based law

firm, cartwright King has

sponsored the local heat of the

2014 magistrates’ court mock Trial

competition, a national competition

aimed at 12-14 year olds to help

them learn about all aspects of

the criminal justice system.

The local heat was part of a

national competition run by

the citizenship foundation in

partnership with the magistrates

Association which is funded by

her majesty’s courts and Tribunals

Service, an executive agency of

the ministry of Justice, and the

Jomati foundation. Around 160

young people from twelve schools

in areas including Bordesley

green, erdington, handsworth and

edgbaston competed in the heat.

The competition is an opportunity

for competitors to adopt all

the roles that would be found

in a real-life court, including

lawyers, witnesses, magistrates,

court staff and a defendant.

The Birmingham local heat was

opened by the Lord mayor of

Birmingham, councillor mike

Letty, who wished all participants

a fair trial. Its overall winner was

King edward VI handsworth girls

School and woodrush community

high School was the runner-up.

The Prosecution Plate went to

the crown Prosecution team also

from King edwards VI handsworth

and the Defence Plate to

Sutton coldfield grammar.

other awards, presented by

Regan Peggs of cartwright King,

went to Perry Beeches Academy

for their journalism skills and

Sutton coldfield grammar School

for girls for the best court artist.

A fantastic learning tool first

introduced 20 years ago, the

competition aims to inspire

young people who might wish

to pursue a career in law as a

result of their participation. It is an

event which enables students to

develop crucial life skills, such as

the ability to speak confidently in

public, work well as part of a team

and use analytical techniques.

The students are given a

mock case and coached by

local magistrates and legal

professionals before the

event so that they understand

every aspect of what they will

experience at the trial. This

year’s local heat involved the

case of a stolen bike which

has been acquired without

knowledge of the item’s history.

Regan Peggs who is an

associate at cartwright King and

who assisted at the competition

alongside one of the law firm’s

interns, Saydie farrell, said: “it is

important that young people who

are considering a career in law

are presented with opportunities

such as the one offered by

this competition, to get more

of an insight into what a future

career in law might involve.”

The 63 local heats are now to be

followed by regional finals for the

midlands and wales on Saturday

10 may and the prestigious

national final takes place at

Birmingham’s Victoria Law court

on 28 June. members of the

Birmingham Law Society are

more than welcome to volunteer

in both of these next rounds.

Please contact Dr Amanda

grant JP (vlcmocktrials@gmail.

com) for more information. n

cARTwRIghT KIng SPonSoRS weST mIDLAnDS mocK TRIAL conTeST

eVenTS

Irwin mitchell hosted a training seminar for student members of Birmingham Law Society on 24 march 2014. Presented by trainee solicitors at Irwin mitchell, mark cawley and Rebecca fitzgerald, the session focused on developing commercial awareness and its importance for a successful legal career. The talk provided advice on becoming more commercially aware as well as how to use it in the application and interview process. The event follows a number of successful training and networking sessions which have been organised by the BLS Student committee. The committee’s aim is to encourage students studying at local institutions to become involved with Birmingham’s legal community by offering unique training and networking opportunities. n

Irwin Mitchell Training Seminar


(1) Laura Ralfe (Irwin mitchell) and Ben henry (Jonas Roy Bloom)

(2) Kirko Profirov, Rebecca fitzgerald (Irwin mitchell), hannah fox

(3) Adam wright, ellie williams, nick Little (All Irwin mitchell)

(4) Kohi michaili (Bcu), harminder Saund (Bcu), ellie williams (Irwin mitchell )

(5) mark cawley (Irwin mitchell), Ben Thompson (Bcu), christian Alifoe (Bcu)

(6) Rebecca murray–Butcer, masi mutonono, Rebecca fitzgerald (Irwin mitchell )

(7) harmandeep Sandhu (Bcu), Laura Ralfe (Irwin mitchell), Tajinder Singh Ranshi (Bcu

1 2 3

4 5 6

7

networking event - SoLD ouTLocation: Radisson Blu Birmingham Thursday, 10 Apr 201406:00Pm - 08:00Pm freeBirmingham Law Society invites you to an evening of drinks and canapés. Join us for the President’s

last event of the year for an opportunity to meet new and past colleagues in a venue ideal for business and pleasure. All members and non members are welcome! Places are limited so apply as soon as possible to avoid disappointment.

Annual general meeting Location: Birmingham Law Society Tuesday, 29 Apr 2014 05:00Pm - 08:00Pm freeAnnual general meeting 5pm - 6.30pm followed by networking with drinks and canapés.

members only.

cLASSIfIeDS

Translations

expert witnesses

eVenTS

To book please visit the website www.birminghamlawsociety.co.uk If you have any enquires please email: [email protected] or call: 0121 237 6004

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congratulations to the winners of the Legal Awards prize draw:

1. Return flights from Birmingham to any of 242 destinations in the world, sponsored by Turkish Airlines: Peter Burden (howell & co)

2. IPad Air, sponsored by Sgh martineau LLP: David fisher (Thompsons Solicitors)

3. Dinner for two and overnight stay in a junior suite, including breakfast at the hyatt Regency, sponsored by hyatt Regency hotel: Adam Pipe (no.8 chambers)

4. Six bottles of Rose champagne and luxury chocolates, sponsored by Allsopp & co: caroline coates (Dwf)

5.overnight stay for two at Radisson Blu hotel, including breakfast, sponsored by Radisson Blu: Peter Riddleston

6. £100 of house of fraser vouchers, sponsored by St Philips chambers: Alexandra Jones

the legal awards 2014 - birmingham law society · the city’s legal and business community donned...

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