What the Senior Partner thinks

Solicitor Jacqueline Emmerson got off to a flying start in her new office at Gosforth. She has over twenty years of experience dealing with Family law, Wills and Probate and Lasting Powers of Attorney. Jacqueline used to undertake a lot of work under the Legal Aid Scheme however; she has now set up a private fee paying department at the Gosforth branch of Emmersons Solicitors.

“It has become very frustrating dealing with legal aid. I don’t feel that clients using that scheme can be dealt with as thoroughly or as fast as they can if they are privately paying. The Legal Aid process is slow and cumbersome. Legal Aid clients are often waiting weeks for decisions to be made about their funding.

In our Gosforth office we do not offer legal aid for family law. I therefore feel that I now have time to spend with clients discussing their cases instead of their funding issues.   

 I have always enjoyed dealing with complicated matrimonial matters. Often involving businesses or investment properties. As a business owner myself I have an understanding of business accounts and can often spot issues that some other solicitors would miss. Recently I spotted an anomaly in a client’s accounts. When she pointed this out to her accountant it transpired that her accounts had been badly drafted and needed to be redone. This has lead to her receiving a tax refund.

I also encourage clients to carry out as much work on their case as they are comfortable with.  Some people want me to obtain all of their financial information for them because they are too busy to do this themselves. Others prepare a lot of their own paperwork in order to keep their costs to a minimum. I go to a lot of trouble to explain to clients the steps they can take to minimize their costs. I am always shocked when I hear of some of the bigger firms regularly charging clients over £20,000 for what are in effect fairly routine cases for someone with my level of experience.

I also offer value added advice which comes from the knowledge that I have built up over the years. As I deal with wills and probate I am able to offer long term estate planning. This becomes ever more complicated as people marry for the second time especially when they have children from their first relationship.  Having dealt with a number of contested probate estates over the years I have an appreciation of which family members a client should provide for in order to avoid a costly challenge to their estate. I also keep permanent notes in case anyone does try to challenge a will. Often the provision of detailed notes to a disappointed beneficiary is enough to prevent a legal challenge in the first place”. 

Edith has been so kind to me….

So said Betty when she came to see me about making a will. She then told me that she would like to leave Edith £10,000. The will would therefore say “£10,000 to Edith and the rest of my estate to be shared equally between my two daughters”

But there is a problem with this. The £10,000 is a specific legacy and so Edith would receive her share of Betty’s estate before Betty’s daughters received theirs. If Betty has an estate worth £150,000 at the time that she makes her will then the gift to Edith may seem perfectly reasonable.

 However, what if Betty had been on a series of world cruises and had gone wild at the local casino before she died? Her estate may then be worth only £15,000. Edith would receive her £10,000 and Betty’s daughters only £2,500 each.

Betty was shocked when I pointed this out to her, most notably because she suffers from seasickness and has never gambled in her life! I therefore suggested that she should leave a percentage of her estate to Edith eg. 2% or 5%. That way she would be saying thank you for all of the kindness shown to her by Edith whilst at the same time benefiting her daughters in the way that she intended.

The other item that people often wish to leave by way of inheritance is their home. But which home? When you make your will you may live in a large home which is worth a lot of money. By the time you die you may have downsized your home and put most of your money into other assets. Or you may have moved into much bigger and more expensive premises. Would you still want the same person to benefit from what is now a greater part of your estate?

As life changes it is important to revisit your will from time to time. Predicting your future is like looking into a crystal ball. It is better to consider a will as a temporary measure until the next major change in your life. 

After all you never know how much money you will spend when you decide to trip The Light Fandango!

Jacqueline Emmerson

Conveyancing, It’s only signing some forms isn’t it?

As a Conveyancing solicitor I am involved on a daily basis with clients, lenders and Estate Agents buying and selling properties. However, what is quite clear to me is that many people do not understand the Conveyancing process and, in particular, what they are paying me for.

There appears to be a common misconception that it is the solicitor who causes the delays and, in some cases, purposely slows down a transaction in order to claim more fees from the client.

Take the recent case of Paul and Sandra. Having looked for a long period of time for a family home they were very excited when their offer was accepted on a property. We advised them that they should consider having a survey carried out. Not surprisingly it highlighted numerous problems with the property. Sandra then obtained quotes to have repairs carried out. They amounted to £20,000! This meant that a lot of work would need to be carried out. Sandra therefore reduced her offer price by this amount. Then an angry estate agent started to ring Sandra, what right did she have to reduce her offer, he was not having it! He was going to make sure they couldn’t buy the house at the reduced price. Sandra was very distressed when we heard from her. We simply contacted the seller’s solicitor, we pointed out that if they tried to sell at the higher price to someone else then there would be further delay and  no doubt the same problems would be uncovered by them. They came straight back to us and accepted the lower offer. 

My own view is that for a client to be satisfied with their conveyancer, they should know more about the Conveyancing process. In many cases I have spoken to clients who believe that all the solicitor has to do is produce the documents for signature and transfer the money.  This is simply not the case.

When giving Conveyancing quotes, I am often asked “How long will it take?” The million dollar question.  My stock answer is that a transaction should take between four to six weeks to complete and this is true in many cases. However, it is difficult to know exactly how long a transaction will take. There are many issues to consider such as: The mortgage offer - is it being processed by the lender? Are there any special conditions on the mortgage offer?  Is the property registered with the Land Registry? Are there restrictive covenants? Have there been breaches of the covenants? Have there been alterations to the property? Is the property Leasehold? And there are also the clients themselves - Are they serious about proceeding? Are they good at returning documents? Are they contactable? Have they gone on holiday without telling us?

These are just a few of the issues which may arise during a transaction. It is impossible to know at the outset which, if any, will arise.  Remember, if you are involved in a chain and any difficulties arise for others in that chain then everyone has to wait until those problems are sorted out. Therefore, the initial estimate of four to six weeks needs to be qualified and I make a point of explaining this to all my clients at the outset.

It is your solicitor who will have the legal knowledge as to how quickly matters can proceed. Estate agents are not legally trained and sometimes do not understand how thorough we have to be, not just to protect our clients’ best interests but also those of their lender. If a purchase or re mortgage is being funded by way of a mortgage then we will be acting for the lender at the same time, not just our client.

 However, you should remember that as a client, you are the customer. Do not be afraid to ask your conveyancer for more information because the more you know, the better placed you will be to assist your conveyancer and agree a swift completion date.

John Coulter

IPP Campaign on Facebook

Have a look at our Facebook site and click on the IPP Campaign page. We have had articles in Inside Time and we have written to all MPs and relevant Ministers about this sentence. We are not the only people who find the sentence abhorrent. There are some, however, who think that IPP is necessary.

Our view is that IPP was a knee jerk reaction to a perceived problem that has created more problems at great expense.

Take some time to read about IPP.

On the face of it IPP makes sense. Lock up the dangerous and only let them out when they are not dangerous. The truth is somewhat different.

Lord Young's review of health and safety, compensation culture, the Universe and the origins of man!!

Lord Young is to release his “report” into health and safety law after the Conservative Party Conference. Already it has been trumpeted as a report into health and safety regulation and the compensation culture which causes all sorts of policy stopping all sorts of activity such as teachers having to complete  a risk assessment in advance of taking school children on a trip.

Lord Young(1) was industry Minister in Lady Thatcher’s Government. That Government acquiesced to insurance companies demands that legal aid be removed from personal injury claims. A system of Conditional Fees was introduced (known as “No win-No fee”) along with a freeing up of the market to allow claims management companies to enter the market. There was disquiet amongst Solicitors.

Since then the insurance companies have continued to complain. They criticised claims management companies and the operation of conditional fee agreements. Recently Lord Justice Jackson completed his review of Civil Litigation Costs(2) and made recommendations

Regulation of Claims Management Companies –as opposed to Solicitors, who are Regulated by the Solicitors Regulation Authority- has resulted in the closure of many companies who would not or could not comply with the Ministry of Justice’s Regulation system.

The need for claims management regulation(3)

2.1 Over the last ten or so years a small industry has grown up of non-solicitor businesses that help people obtain compensation. This has been influenced by government policy initiatives – the introduction of conditional fee agreements for personal injury cases and the requirement on insurance companies to respond in a particular way to complaints about the mis-selling of endowment policies.

2.2 Whilst solicitors remain the principal providers of claims management services, the traditional culture of the legal profession, combined with the professional regulation to which solicitors are subject, allowed new entrants into the market who were subject to no regulation at all. Standards have varied from very good to very poor, but with no mechanism for excesses at the poor end of the scale to be addressed.

The Compensation Act 2006

2.3 The Compensation Act 2006 became law on 25 July 2006. The Act and subsequent secondary legislation provide for the following activities to be subject to regulation -

for, or otherwise seeking out (for example, by canvassing or direct marketing), persons who may have a cause of action;

• advising persons on the merits or handling of causes of action;

• making representations on behalf of claimants;

• referring details of potential claims or potential claimants to other persons, including persons having the right to conduct litigation; and

• investigating, or commissioning the investigation of, the circumstances of, the merits of, or the foundations for, potential claims, with a view to the use of the results in pursuing the claim.

2.4 Claims in respect of the following are covered –

• personal injuries;

• criminal injuries compensation;

• Industrial Injuries Disablement Benefit;

• employment;

• housing disrepair; and

• financial products and services.

2.5 A number of businesses are exempt from the need to be authorised under the Act –

• lawyers regulated in respect of claims management services by their respective regulators;

• independent trade unions;

• insurance companies, insurance brokers and IFAs providing a claims management service that is regulated under the Financial Services and Markets Act 2000;

• charities and advice agencies that meet the detailed exemption criteria set out in the regulations; and

• certain very small scale introducers (‘exempt introducers’) although they need to comply with the rules on advertising, marketing and soliciting business.

The regulatory structure

2.6 The time period from drafting the legislation to Royal Assent and then implementation was very short. At the time the legislation was drafted no decision had been taken as to the regulatory structure. The legislation accordingly allowed any option. The Secretary of State could establish a new regulatory body, designate an existing regulatory body to be the regulator or be the regulator himself. The latter direct regulation option was selected and fully implemented by April 2007.

2.7 An established civil servant supported by a small team in the Ministry of Justice takes decisions on behalf of the Secretary of State. A Monitoring and Compliance Unit is provided under contract by Staffordshire County Council. A non-statutory Regulatory Consultative Group, comprising representatives of relevant major stakeholders including claims management businesses, other regulators, trade associations and consumer organisations, acts as a sounding board for the Regulator and as a forum for discussion.

The objectives of regulation

2.8 The objectives of regulation were set out in the Regulatory Impact Assessment for the Compensation Bill –

“This proposal aims to provide better safeguards for consumers of claims management services. It is designed to encourage the provision of quality services, to enhance consumer protection and to provide consumers with a clear route to redress. In particular, the proposal aims to improve the effectiveness and efficiency of the system for those who have a genuine claim to compensation, and to tackle practices that have helped to spread the misperceptions and false expectations of compensation claims amongst consumers. This will help to build consumer confidence and promote effective competition within the sector, whilst ensuring that the sector will be able to contribute effectively to the widening of access to justice.”

There is a difference between Claims Management Companies (CMC’s) and Solicitors even though the media and politicians talk of personal injury “lawyers” when they should be talking of two distinct though related groups. There are plenty of Solicitors who undertake personal injury work who do not advertise, who do not pay referral fees to companies and who operate entirely within the SRA’s Code of Conduct. Problems arise where Solicitors pay referral fees or become members of a CMC’s panel of Solicitors. There are ethical issues that must be addressed which are ignored. For instance the Legal Services Board recently indicated that there would not be a ban on referral fees.(4)

In 2004 the Better Regulation Task Force(5) published a report(6) confirming that compensation culture is a myth. What has changed since then?

Lord Young’s use of the term “Compensation Culture” is a political act. His report is based upon a political belief that there is too much regulation, that part of the problem are the “lawyers” (what about the CMCs) who help people claim compensation because this makes all sorts of businesses, organisations and institutions NOT do something they would otherwise wish to do. What is the evidence for this?

Journalists-and especially the BBC-need to be more cynical. The review of health and safety regulation wrapped up in a compensation culture wrapper hides a desire of the Conservatives to help businesses and others save money by not taking proper notice of safety issues.

It is true that there have been excesses of health and safety madness reported in the media. How many of those stories are true? How many people didn’t clear snow away from in front of their house or shop in case they were sued? Has anyone admitted to that? Maybe they didn’t do it because they never have and they expect the Council to do it.

Schools closed last winter not because of a fear children might fall on ice or snow and sue but in fact because teachers couldn’t get into school because roads were closed.

In relation to school trips, which organisation pushes the idea of there being too much red tape because of “compensation culture” in case teachers get sued? The Local Government Association of course http://www.lga.gov.uk/lga/core/page.do?pageId=45106 . Local Authorities create (in that they create policy to enforce health and safety regulation) and enforce the health and safety rules that govern what teachers, shop owners and others can and cannot do.

The media love the health and safety excessive regulation stories and thereby add to the fear of a compensation culture. If compensation culture does not exist then why report on it?

Lord Young and the Conservative Party is using the media’s love of health and safety madness and the prejudice against “lawyers” to obscure the truth of its intent.

(4) http://www.legalservicesboard.org.uk/news_publications/press_releases/2010/pdf/20100929_referral_fees_consultation_final.pdf

(5) http://archive.cabinetoffice.gov.uk/brc/news/2004/040527_compoculture.html

 (6)http://archive.cabinetoffice.gov.uk/brc/upload/assets/www.brc.gov.uk/betterroutestoredress.doc

Our Video

Law Society turns up the heat on LSC

Judicial Review proceedings are at an early stage however the LSC will have to take seriously the fact that the tender process was flawed.

EU law requires a tender competition to be fair and open. That means the criteria are to be published in advance to make it a fair competition.

The LSC failed in this regard by not emphasising the importance that they would place on being an Advanced panel member in priority areas of law that come under the family umbrella. Panels are run by The Law Society and are used by the LSC to promote quality. In fact only 16% of Solicitors are on a panel (membership is voluntary) whilst others are members of organisations such as Resolution which also offer “accreditation”.

There is no independent research evidence that panel membership or Resolution accreditation is evidence of quality. There is no independent research evidence that being a member of Resolution is a guarantee of quality.

Anyway a whole load of taxpayers’ money ahs been wasted in a tender process that was poorly thought out, some would say unnecessary in any event, overly complicated and which has failed to deliver the LSC’s promise of appropriate cover in all areas.

Family legal aid gets cut to shreds

An example of how the ConLibs will attack public service was demonstrated recently by the family law legal aid tender. Whilst tendering for business is a common enough experience for businesses it is the first time it has been used for legal services. The MoJ does not own clients. Clients choose a Solicitor and seek publicly-funded advice. The tender process has resulted in a huge reduction in the number of firms now able to offer legal aid and due to fee cuts, only junior staff will be able to undertake the work. Client choice has been restricted.

The MoJ seems incapable of seeing the value that Solicitors bring to the process and have concentrated exclusively on cost.


They have attempted to address quality issues by insisting on advanced panel membership. However there is no evidence that advanced panel membership means anything to clients or guarantees quality.

A Solicitor undertaking legal aid work has to turnover 4 times the number of files than a private client family solicitor simply to earn the same fees. With a cut in fees the only way to survive is to push the work further down the food chain. Less experienced staff will have to do the work.

Imagine if this happened in health care or dentistry or in pharmacies?

All I can suggest is that you contact your MP. They won't care but it might make you feel better.

Heidi had a baby

We are all so pleased for Heidi and her partner when Heidi gave birth very recently to a baby girl. Well done!!

Heidi and her baby are doing very well.

IPP

Not only did my letter to the Prime Minister get published in Inside Time but it was referred to in a question to the the Minister responsible for prisons.
Claire Perry: Will the Minister comment on the fact that the previous Government's mismanagement of the indeterminate public protection sentencing regime in many ways contributed to that overcrowding? That was brought to my attention by a prisoner in HMP Erlestoke in my constituency, who copied me in on a very good letter to Inside Time this month. Will the Minister tell the House what he will do to help to reform the IPP regime?

Mr Blunt: I notice that the previous Government had to reform the IPP arrangements in 2008, having introduced them in the Criminal Justice Act 2003. We inherit a very serious problem with IPP prisoners. We have 6,000 IPP prisoners, well over 2,500 of whom have exceeded their tariff point. Many cannot get on courses because our prisons are wholly overcrowded and unable to address offending behaviour. That is not a defensible position.

The Conservatives are to hold a review of sentencing policy and we hope IPP sentences are properly reviewed.

Sentencing Policy

15 Jun 2010

2. Tony Baldry (Banbury) (Con): What timetable he has set for the completion of his Department's review of sentencing policy. [2216]

The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt): We are conducting a comprehensive assessment of sentencing policy with a view to introducing more effective sentencing and rehabilitation policies. We will take the time to get it right, and will consult widely before bringing forward coherent plans for reform. We intend to bring forward proposals on sentencing and the rehabilitation of offenders after the House returns from recess in October.

Tony Baldry: Does my hon. Friend agree that the punishment, in being sent to prison, is the loss of freedom? Does he also agree that what is important is trying to reduce reoffending rates, and ensuring that when people are in prison, they undertake activities that mean that they are less likely to reoffend when they are released? Alternatively, we might have not so many people going to prison, but if they are to be punished in the community, that punishment should involve activities that help to reduce the chances of reoffending. It is reducing the reoffending rate that is so important.

Mr Blunt: I absolutely agree with my hon. Friend. We have inherited a disaster, in terms of the reoffending rate among short-sentence prisoners. I do not think that anyone would want to defend the reoffending rate in that category, which is somewhere between 60% and 70%. Prisoners in that category do not receive probation supervision, and if we do not engage them with the great army of auxiliaries in the third sector who want to help us with offender management, we will not be able to address offender behaviour in the way that my hon. Friend suggests.

Column 722

Alun Michael (Cardiff South and Penarth) (Lab/Co-op): Will the Minister undertake to read the excellent report drawn up on a cross-party basis by members of the Select Committee on Justice not long before Dissolution, which proposes a number of ways in which the large amount of resources that go into the criminal justice system could be focused more effectively on reducing reoffending?

Mr Blunt: Yes. The report is excellent, and it will inform the proposals that we bring forward when the House returns in October.

Dr Julian Lewis (New Forest East) (Con): Does my hon. Friend accept that it adds insult to injury when a victim of crime, having seen the perpetrator sentenced, finds that the person is released halfway through their sentence? What steps will we take to reintroduce honesty in sentencing?

Mr Blunt: I am very grateful to my hon. Friend for that question, because plainly the proposals that were in the Conservative manifesto will inform the outcome of the sentencing review. I am quite sure that he will be satisfied with the outcome, and that we will have a great deal more honesty in sentencing at the end of the process than we have today.

Meantime Ministry of Justice announces Court closures and a (yet another one!!) legal aid review.