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D&DLS Bulletin
Derby & District Law Society
www.derbylaw.net June / July 2020
Adjusting
to the new
normal...
... as lockdown begins
to ease in Derby.
Also in this issue: Will Aid • Words of Wisdom • Meeting Derby Family Court
Gold Patrons of the Society
D&DLS Bulletin
Derby & District Law Society June /July 2020
Contents
3 - Contents & Editorial 16 - The Isle of Wight Donkey Sanctuary
4 - List of Officers 19 - The Open Spaces Society
5 - President’s Page 20 - Words of Wisdom
8 - Family Law Sub-Committee 22 - No fault divorce to be enshrined in law
10 - Conveyancing: Adapting to the New Normal 23 - Council Member’s Report
12 - Civil Litigation Committee: Civil Users 24 - Experts - when even the Lawyers get it wrong
12 - Will Aid 27 - The Legal Business of Business is Changing
13 - Will writing and the Charity Sector 28 - Conveyancing and technology after the lockdown
14 - The Canine Care Card 30 - Contingency planning with Quill
Editorial
Strange how March seemed to last six months but given the size of the event it looks likely that it will be put back to next
since then time has flown by. I assure you that is not April. You will read in the President’s piece that he has agreed to stand for
entirely as a result of my already sizeable gin habit another year with all other officers of DDLS doing likewise. Congratulations
increasing further. Instead of an 18 year old who Martin – your term will at least be a memorable and let’s hope unique one!
should have been doing all those amazing leavers
things at the end of his school life I have a young man Burton Magistrates Court is up for auction at the end of June – I am putting
working nights at Amazon and a 14 year old who I together a brief history on the building with some photos and narrative.
still can’t extricate from the Play Station. Thank goodness for the lovely If anyone has anything to add please e-mail it through to me. Although I
weather in May and someone please re-instate the sunshine! have dis-abused John Calladine of his romantic notion of a DDLS archive
(was Peter’s study now my attic) he has made the excellent suggestion of
This edition is full of hope and help as we emerge from lock-down. The keeping historical records of the Derby and District legal scene over the
local profession has managed to pull together at this strange time and years. Again, if anyone has anything to contribute please let me have it and
I continue to send information round which might assist firms. As ever if I will start an electronic archive. Thanks to Andy Cash and his Back to the
there is anything you want me to circulate please e-mail it through to me. Future articles we already have an great starting point.
The Family, Crime and Civil Sub-committees have been in constant touch Stay safe everyone.
with the Courts. Thank you to Fiona, Nick and Oliver for co-ordinating this
essential contact. Julia Saunders
admin@derbylaw.net
The subject of the Annual Dinner is under constant review but I am afraid 01283 734989
Published by: Advertising Design Legal Notice
EAST PARK COMMUNICATIONS Ltd. Simon Castell David Coffey © East Park Communications Ltd.
Unit 27a, Price St. Business Centre,
None of the editorial or photographs may be reproduced
Price St., Birkenhead, Wirral, Merseyside Accounts without prior written permission from the publishers.
FINDING YOUR VOICE
IN TODAY’S DIGITAL CH41 4JQ Managing Editor Tony Kay East Park Communications Ltd would like to point
AND PRINT MEDIA
Tel: 0151 651 2776 Julia Saunders out that all editorial comment and articles are the
responsibility of the originators and may or may not
simon@eastparkcommunications.co.uk Published reflect the opinions of East Park Communications Ltd.
www.eastparkcommunications.co.uk © East Park Communications Ltd. June/July 2020 Correct at time of going to press.
Officers and Committee Members for 2019-20 President’s Page
Officers Constituency Council Administrator / David Guthrie
Representative, Derbyshire (+) Bulletin Editor (01332 293293)
Michael Williams Julia Saunders, Hello. On the downside it does appear that the for free and you will only be asked to pay
Tel: 01298 24185 14 Risborrow Close, Liz Guyler financial ramifications are to still to come for six months from November 2020 until
President* mwilliams@bemerton.co.uk Etwall, (01773 749955) I hope that you are all well and it is hoped that the country can avoid May 2021. As a society we greatly value
Martin Salt (+) attend Committee by Derby and staying safe. As of the looming grip of a long-term recession. our loyal membership and we are also
Martin.salt@chapsol.com invitation DE65 6HY Nick Herbert June 1st 2020 the United painfully aware of the current financial
Tel: 01773 540480 Tel: 01283 734989 (01332 293293) Kingdom begins to awaken Locally, the D&DLS is here to help during situation affecting all of us and with this
Chapman & Chubb Other Committee Members Mobile: 07964 358042 from its imposed slumber this difficult time. Although we have few change we offer not only assistance but
Shane House Tina Attenborough Email: admin@derbylaw.net. Janine Hobday
with a hope of heading back towards a state events coming up, we are still here to keep also value for money.
157 Nottingham Road Attenborough Law, Derby (01332 226477)
of normality. However, in these difficult you connected. Throughout the bulletin
Somercotes Tel: 01332 558508 Sub-Committees
Alfreton tina@attenboroughlaw.co.uk (Secretary in italics) Ruth Jones times solace for many has been found in the please take note of the numerous articles Finally, I also have the privilege to confirm
Derbyshire (01332346084) exceptionally nice weather and the chance and members who are here to assist in that I will continue as the President of
DE55 4JH Andy Cash Criminal Litigation Natalie Yeung to spend time working in the garden and any way they can. Our administrator Julia the D&DLS until the next AGM in May
Cartwrigt KIng, Derby Simon Stevens (01332 331631) doing those extra jobs around the house Saunders is our hub and is a constant 2021 and my thanks go to our amazing
Vice-President* Tel: 01332 346111 that we always seem to avoid. source of help and information. Our committee for deciding to keep me around
Julie Skill, andy.cash@ cartwrightking.co.uk Andy Cash Private Client committee members are also leaders in for a bit longer.
Elliot Mather LLP Claire Rudkin The housing market is beginning to their respective fields and on the first page
Chesterfield Andrew Cochrane Quentin Robbins kickstart, the court system (albeit of this bulletin kindly note their contact In the meantime, please stay in touch and
Tel: 01246 231288; Flint Bishop, Derby Martin Salt
with delays) is adapting to the current details and please feel free to get in touch by the next bulletin I am sure that we will
julie.skill@elliotmather.co.uk Tel: 01332 340211 Andrew Oldroyd saltmartin@hotmail.com
Via nikki.rennie@flintbishop.co.uk (01332 225225) restrictions and home working is quickly for any assistance you may require. be finally heading towards normality and
Deputy Vice-President* Nikki Spencer becoming the new norm. Online video the ability for all of us to say that 2020 was
Manesha Ruparel Diana Copestake Nick Wright (0115) 932 4101 conferencing is becoming a necessity. Additionally, and most importantly for not a complete write-off.
Alexander & Co Freeth Cartwright LLP (01332 364751) A number of major city law firms are you the members, the D&DLS is also
mr@aandco.co.uk Tel: 0845 2725674 Christine Hinkley looking at the potential for home remote changing it’s subscription fees for the We continue.
Tel: (01332) 600005 diana.copestake@freeths.co.uk Education & Training (01332) 836666 working as the way of the future although coming year. There will be a “payment
Sue Jennings, personally I would miss the buzz and holiday” until November 2020. This will Martin I. Salt,
Honorary Secretary* David Hardy & all Sub-Committee Kim Kirk
formality of the traditional legal office. mean an extra six months of membership President, 2019-21
Fiona Apthorpe Tel: 01332 842008 Secretaries (01332) 600005
Geldards LLP, david.hardy1630@gmail.com
Derby Employment and Business Law Tim Dysterre-Clark
Tel: 01332 378335 Natalie Haydon-Yeung Sue Jennings (01332) 600005
Fiona.Apthorpe@geldards.com Geldards LLP
01332 331631 Family Law Kirsten Wood
Immediate Past President* natalie.yeung@geldards.com Fiona Apthorpe (01332) 340211
Honorary Treasurer*
Ben Lawson Liz Haysom Vince Beckworth (Elliot Mather) Dervla McLaughlin
Family Law Group E.Haysom@derby.ac.uk (0115) 932 4101
Tel: 01332 650000 Diana Copestake
Sue Jennings Sole Practitioners’ Group (SPG)
Tel: (M) 07946 609436 Joanna Jarvis (Bhatia Best) Tina Attenborough
(* = Ex-Officio) robskelding@squarise.co.uk
Jane Lakin (Derbyshire County
Parliamentary Liaison Officer Oliver Maxwell Council)
Julie Skill, Nelsons
Elliot Mather LLP 01332 378696 Ben Lawson
Chesterfield oliver.maxwell@nelsonslaw.co.uk
Tel: 01246 231288 Manesha Ruparel
julie.skill@elliotmather.co.uk Claire Rudkin (01332) 600005
Flint Bishop, Derby
Public Relations Officer (+) Tel: 01332 340211 Julie Skill
Vacant claire.rudkin@flintbishop.co.uk
Melanie Bridgen
Derby Junior Lawyers Simon Stevens (01283 2264440)
Natasha Hybner Eddowes Waldron
Swindell & Pearson 01332 348484 Claire Dean
01332 367051 sws@ewlaw.co.uk (01335 345454)
natashahybner@patents.co.uk
Solicitors’ Benevolent Assoc. Liz Doherty-Astle
area representative (01332 592523)
Peter Lord
9 Larkhill,
Swanwick DE55 1DD
Tel: 01773 541753 Last updated 06.02.20
4 www.derbylaw.net www.derbylaw.net 5
Family Law Sub-Committee:
Meeting with Derby Family Court
Dear all, There are some residual non FRC cases at Derby It will be helpful if practitioners can liaise and advised
which are presenting a problem in practice because the court as to the options which all involved parties
The Derby and District Family Committee attended the judges are for the most part remote working and can use effectively. Otherwise Skype or BT MeetMe
a meeting with HHJ Williscroft and DJ Davies have no access to the paper file. will be the default position where both parties
together with Mr Matt Bradley Family Section represented.
Leader and Ms Jo Price to discuss issues affecting There are four district judges locally who are
financial remedy and private family court business. dealing with financial remedy cases led by District It will also assist the court greatly if one party could
Judge Davies, the others being DJ Parker, DJ take responsibility for emailing the court with an
The following issues were discussed: MacCuish and DJ Revitt. DJ Wall is during CV19 email containing all of the email contact details
working out of Nottingham and Mansfield and which will save considerable time in a member of
Financial Remedy Hearings will not be undertaking Derbyshire FR work until court staff having to individually locate and import all
There has been a meeting of the East Midlands Lead further notice. of the contacts.
Judges led by HHJ Mark Rogers.
For the most part District Judge Davies will be It is understood that the magistrates are generally
The Financial Remedies Court is not working able to ascertain which judge is dealing with a relying on telephone hearings. The general view
effectively at the moment so electronically filed particular case and will, upon request inquire with however is that this is not ideal. Whilst these are
documents are not being uploaded in time for that individual judge as to whether they would be challenging times for everybody, justice must be
hearings. It will all catch up in due course but at prepared to accept direct emails from practitioners. seen to be done and the parties, particularly those
the moment the court is dependent on physical or For his part District Judge Davies has no objection who are unrepresented, need to engage with the
emailed Bundles. to practitioners emailing him direct. This however process which is difficult for them to do when they
will only work where both parties are represented cannot see the judge.
FDAs: and under no circumstances must any judge’s email
These can generally be dealt with effectively by address be disclosed to litigants in person. The court is not expecting litigants in person to be
telephone. able to access E bundles.
Emailing the judge directly will however speed
Practitioners are encouraged to read Mostyn J’s matters up insofar as the court is currently being Domestic violence cases:
Note on Unattended FDA’s which explains how such inundated with emails which it is incredibly hard for These are presenting their own challenges.
hearings can be dealt with by agreement or by a short them to keep on top of with limited staff. Practitioners are referred to HH J Williscroft’s
focused hearing if both parties are represented. We are likely to be facing some interesting cases guidance.
where parties are arguing that the COVID-19 crisis
FDRs: is a Barder event. The court is continuing to deal with and will prioritise
How these are dealt with is up to the individual judge. domestic violence injunctions. There are clearly
So far as listing is concerned, the court should not be difficulties however with holding hearings in open
DJ Davies is listing some for 2 hours with a gap listing listing on a day by day basis. At worst they should be court. As perhaps we might expect in the current
11.00-12.00 and 2.00 to 3.00, so say for parties to take looked at on a weekly basis but it is recognised that circumstances there has been a hike in domestic
instructions and talk 10-11, 11-12 for submissions this can cause problems in big money cases where violence applications.
and Judge’s input then more time to talk and regroup the parties are worried about the preparation costs
at 2-3 for an agreed order or directions. If the 2-3 and in particular counsel’s fees. Final hearings:
session is not needed (usually no settlement) then There is a real concern about final hearings and
directions and queries can be dealt with by email in If there are any significant cases where practitioners whether and to what extent the parties can actively
some cases. This is only a suggestion as to how these are concerned about the case being pulled at the last engage in remote hearings. This involves not only
may be facilitated in an appropriate case. minute with the consequent liability for counsel’s fees the technology issues and the procedural problems,
the practitioners are invited to email District Judge but also the additional very real concerns the parties
This works best if both parties are represented. Davies and he may be in a position to make inquiries are having as result of the impact on their lives and
as to whether or not there is a real likelihood of the those of their families as a result of the current
FDRs can be dealt with by Skype. DJ Davies recently case being pulled. The default position is likely to pandemic and how this may impact on their ability
undertook a lengthy MPS hearing by Skype. The lay be that wherever possible FDA’s and FDR’s should effectively to prepare for and participate in what are
clients were in email/text contact with their counsel proceed, but FH’s are likely to be stood out until there very significant decisions about their lives.
out of earshot. is courtroom availability in the usual way.
The problem will be with final hearings unless they Finally, all practitioners are encouraged to provide
are on submissions only which is rare in practice. Practitioners are however encouraged not to take their feedback for the Nuffield review on unattended
advantage of this option in every case. Please reserve hearings which will inform future court decisions
The judges are encouraging private FDR’s and other the judge’s offer to the bigger money cases where as to how remote hearings and the lessons learned
dispute resolution options such as arbitration where significant counsel’s fees are an issue. Importantly as result of the current crisis can be utilised in the
appropriate. also that offer is only whilst the current COVID-19 future.
crisis is keeping the country in lockdown.
The court recognises that particularly with the The practitioners are grateful to the judges for taking
problems with the FRC at present there are Emails: the time and trouble too engage with the profession
limitations as to the filing of documents and bundles. It would help considerably if practitioners could on these issues. it is hoped that further meetings
please headline emails appropriately assessing can take place in the future as and when needed
If a bundle can be provided by email that is the ideal urgency and what we want the court to do with the and if any practitioner is experiencing any particular
but if circumstances prevent this Position Statements email. The court is currently being swamped with difficulties could he or she please forward details to
and Case Summaries with an asset schedule may emails all marked urgent without any objective Fiona as Secretary of the Derby and District Family
have to suffice. assessment as to how urgent the matter is and what Law Committee and she will collate them and
is required of the addressee. forward them to the judges as appropriate on behalf
Practitioners should assume that the judge has no of the local profession.
access to the physical court file or to any documents Technology:
which may have been physically filed with the court. The courts general preference is Skype. The court Fiona M. K. Apthorpe
cannot use Zoom for confidentiality reasons.
The court recognises the limitations experienced by Microsoft Teams is good but not everybody has it. Secretary,
practitioners working from home. All are referred to Some practitioners have used BT Meet Me with some Derby and District Law Society
the recent guidance circulated by HHJ Williscroft . success. Skype can be variable. Family Committee
8 www.derbylaw.net
2020 Conveyancing: Adapting to the New Normal
Local Government, Robert Jenrick, to On 13 May, the Government gave the
detail their view of how government industry the go ahead to restart England’s
could quickly get the sector operating property market, which includes a Safe
again and critically, bridge the gap until Working Charter plan. In doing so, over
momentum gathers. 380,000 properties that were ‘sold subject
to contract’ but unable to complete were
Working collectively to make the case effectively released, as well as providing
to government, the aim was to support an important fiscal stimulus for the
consumers while also protecting jobs overall economy.
across the property industry.
Data from ‘Derbyshire Live’ reported that
The group’s proposals included getting only six sales were registered in Derby
the home moving market working during March 1, which represents a drop of
quickly by defining a ‘safe move’ and 87% compared to the same data analysed
ensuring that the sector is one of the in February. With the market reopening,
first to reopen under the phasing out of we’re seeing a lot of movement once
‘stay at home’ measures. again, with more properties being listed
for sale once again. A quick search of
In addition, ensuring that those who Rightmove at the time of writing shows
We’re half way through 2020 and what were part way through a transaction the listing of over 320 properties in the
a year it has been so far. It’s fair to say are protected by lenders continuing, last fortnight for Derby alone, and more
it’s not necessarily the year we had where feasible, to honour mortgage than 1,300 for Derbyshire.
all planned for when considering our offers. Providing a fiscal stimulus for the
resolutions or business ambitions back market, enabling a speedier recovery, as Now, we are working in an evolving
in January. well as ensuring the Coronavirus Job ‘new normal’ with conveyancers either
Retention Scheme was extended for continuing to work from home, or
At the end of March, we saw businesses beyond the restart of the in socially-distanced safe working
unprecedented restrictions come into market, to allow firms to rebuild income. environments that adhere to the latest
force – essentially halting many business guidance. The flexibility provided by
activities that could not be conducted Since writing to the Secretary of State online working and cloud-based software
safely, compliantly or from home. For shortly after the housing market was has come into its own this year, and
property lawyers, while progress on paused, the group held a number of many businesses will be looking at
transactions could happen behind the virtual meetings with policymakers ways of extending this further to provide
scenes for most, the inability of estate across government. additional service enhancements.
agents to actively market properties at
one end of the chain, and for removers Businesses across the conveyancing We therefore await the next six months of
to support the physical moving process industry face particular challenges the year to see what they will bring; one
at the other, meant many transactions from Covid-19. The time it takes for the thing is for sure, property transactions will
were in a state of limbo until the pipeline of transactions to be rebuilt, and continue and we remain at your side to
blockages at either end of the funnel the receipt of income on completion by support you, your business and your clients.
could be removed. many in the sector mean the right policy
decisions by government are essential Tony Rollason,
As a business, Landmark Information to support the market’s overall recovery. Regional Manager,
Group worked with two other leading After all, the market has the potential Landmark Information
organisations that help facilitate a to act as an important catalyst for the
property transaction, to lobby the wider economic recovery: home movers
Government on how to safely ‘kickstart’ on average spend £12 billion per annum 1
https://www.derbytelegraph.co.uk/
the housing market. on furnishings, improvements and news/local-news/house-sales-start-
appliances supporting small businesses recover-after-4144907
A letter was written to the Secretary of and the high street.
State for Housing, Communities and
10 www.derbylaw.net
Civil Litigation Committee: Civil Users Why the surge in demand for Will-writing could be
DDLS plays key role in setting up civil users recognised quite quickly that many of the on a fortnightly basis to discuss what steps
instrumental to the charity sector’s recovery
contact group to allow direct access to the court buildings were simply not designed the Judiciary were taking to try and navigate
Judiciary during these strange times. for social distancing. Hearings in Chambers the operational issues around allowing the Growing appetite for charitable Will-writing
would be impossible and, even where “in- courts to function during the pandemic. Just the other day a fundraiser told me that his charity – a small
Believe it or not, it has now been over out” systems could be put in place, there That group has been up and running since organisation – had taken more Will-writing enquiries during one
10 weeks since the Prime Minister would be problems with narrow corridors, early April. The meetings, chaired by HHJ week in April than over the past twenty years. One well-known
ordered businesses to close and our cleaning and the use of communal facilities. Godsmark and HHJ Coe, have been very charity reported an 80% increase in web traffic to the charity’s
pubs, restaurants and shops fell silent. These considerations of course only apply useful in opening up a line of communication legacy giving pages in the first week of lockdown and twice as many
Whereas we are now slowly and cautiously to the “public-facing” parts of the courts, between the Judiciary and local practitioners people are currently visiting Remember A Charity’s ‘Making A Will’
beginning to emerge from the most severe which still have to staffed by very committed in and around the Derbyshire area. 11 page as would do normally.
limitations placed on our civil liberties in key-workers working in extremely difficult firms currently participate and have been
peacetime (and, certainly, in our lifetimes), and, perhaps, lonely conditions. In some sharing information in and around the local As is so often the case in times of crisis, the global pandemic has
when this all began law firms had to adapt cases, the government’s interventions likely community. brought people together, motivating them to think about what really
almost overnight to home-working and lightened the strain. Practice Direction matters to them and what they can do to help. The public’s appetite
to the inevitable downturn in business 51Z, for example, stayed many possession If you would like to either raise questions, or for charitable giving and helping communities around them seems
brought about by the uncertainly of the hearings and Section 82(1) of the be sent details of what has been discussed, to be at a record high.
pandemic. Whilst terms such as “social Coronavirus Act 2020 placed a moratorium please let Julia Saunders know. Better still,
distancing” and “furlough” were alien to on commercial evictions for non-payment if you want to be involved, please likewise But, could this rise in demand for charitable Will-writing really help
us when we welcomed in 2020, they are of rent. Both of these provisions will be in get in touch with Julia and DDLS will look to Rob Cope charities recover from such hefty losses?
now commonplace and much understood. place until the end of June, unless they are get you an invite. The meetings are usually
It is the new normal and is likely to be the extended. Nevertheless, it still felt like a every other Wednesday at 5pm. It’s hard to imagine life in the UK without access to emergency When you consider that, although 40% of the over 40s2 say they would
case for the foreseeable future, with the very uncertain and worrying time for many. services like air ambulances and lifeguards, hospices and NHS be happy to leave a gift in their Will but that, currently, only around
government’s message still “work from charities, not to mention food and sanitation supplies for those 6% of people that die do so, there is a massive disconnect here.
home if you can”. Some of the anxiety being felt by local living in isolation during lockdown. But the coronavirus has had Legacy donations raise over £3 billion for charities in this country
practitioners was likely lessened by an a devastating impact on charities and that puts the future of such annually – a phenomenal sum. So, even just a small increase in
Arguably one of the most fundamental invitation by the Designated Civil Judge vital services in peril. Against this backdrop, charitable bequests the proportion of people choosing to give in this way could make a
questions for those involved in litigation for Nottinghamshire, Derbyshire and have a critical role to play in the nation’s future. considerable difference to charities’ income.
was how the court system could continue Lincolnshire, HHJ Godsmark QC. DDLS
to function when face-to-face hearings were invited to assist in forming a “civil users In time of crisis, it is legacy donations – many of which were pledged Importance of Will-writing advice
would, by and large, not be possible. It was contact group”, which would meet on Skype Oliver Maxwell years or even decades previously – that have the potential to sustain Solicitors and Will-writers have a critical role in ensuring that
charities and frontline services over the long-term. And, with the every client understands that they have the option of donating
Will Aid
Law Society, solicitors and charities all reporting a marked increase from their Will, after taking care of their family and friends. These
in demand for Wills, this could yet be a crucial silver lining, helping conversations really help to break down myths that a legacy
to reduce intestacy and encourage the public to consider how they donation doesn’t have to be large sum – every gift matters - and that
wish to benefit family, friends and good causes once they are gone. it can include absolutely any charity or community organisation, as
well as their loved ones.
Critical income shortage
Will Aid is an annual campaign that takes in 2020 we are expecting unprecedented our charities by signing up here: https:// A doubled-edged sword for charities, the coronavirus has thrust Studies show that even the simplest reference by solicitors to the
place every November. Participating interest following the COVID-19 outbreak www.willaid.org.uk/solicitors/register the UK charity sector into a heavy funding shortfall, while bringing option of including a donation can make a huge difference to the
solicitors offer some of their time to write which has prompted a surge in the number about a spike in demand for services. For weeks on end, charities’ number of people that choose to leave a bequest. So, we’re asking
basic wills, waiving their usual fee and of people looking to get their paperwork in To find out more about Will Aid, please visit: ability to fundraise has been hugely compromised, with sector legal advisers across the country to raise the topic with Will-writing
instead invite clients to make a voluntary order to protect their loved ones. To meet https://www.willaid.org.uk/. studies projecting income losses well over £4 billion.1 clients and join our network of campaign supporters and web listing
donation to Will Aid. this demand and continue to raise vital of legal advisers for legacy giving.
funds for our partner charities, we need While the public’s gifts in Wills may be a saving grace, they are by
That money is divided between the nine more solicitors like to sign up and take no means immune. Legal advisers will recognise the difficulty in If charities and the legal sector can build on this uplift in demand
partner charities. Like many charities, the part in this year’s campaign. witnessing Wills and completing estates during lockdown, meaning for Will-writing, ensuring every conversation end of life planning
COVID-19 outbreak has had a devastating that very little funding from bequests has made it through to includes a reference to the opportunity of leaving a charitable
impact on their finances, with events and Will Aid is a fantastic opportunity intended charities’ accounts, stalling cash flow. bequest3, I believe that this could be a pivotal opportunity to secure
shops having to be cancelled and closed, to give back to your community. the future of vital services, while ensuring the public’s final wishes
which will have a detrimental impact on But it is also beneficial in Charitable estates are likely to have lost value with the stocks, are met.
their ability to supporting the vulnerable other ways. Not only does shares and property markets all taking a heavy hit, but charities
people and communities they work with. it allow you to meet new recognise that supporters’ bequests will filter through down the Rob Cope is director of Remember A Charity – a consortium of 200
clients, many of whom line. We just have to hope that donations can be processed as swiftly charities with a network of legal advisers (Campaign Supporters),
You can help them by taking part in Will Aid. need additional work over as possible, minimising disruption to frontline services. working to normalise legacy giving in the UK. Find out more about
Since Will Aid launched in 1988, we have and above a basic will, it becoming a Campaign Supporter at www.rememberacharity.org.uk.
raised more than £21 million for these can also result in positive There’s no doubt about it, it’s been an incredibly tough period for
charities. This has allowed them to continue local publicity for your charities. But, reports of a peak interest in charitable Wills – the 1
Institute of Fundraising, Charity Finance Group, NCVO (2020)
the work they do to change lives for the firm. largest source of voluntary income – brings a beacon of hope that 2
One Poll (2019)
better, here in the UK and around the world. has never been more needed. 3
Behavioural Insights Team (2013)
Demand for wills is high year on year but Your firm could help us and
12 www.derbylaw.net www.derbylaw.net 13
Canine Care Card
Poppy’s second chance at love
Poppy’s owner first contacted her local rehoming centre and said Poppy’s story is one of many we come
she needed to hand Poppy, a four year old Chihuahua cross, over across at Dogs Trust. Many owners are
to us as she had sadly recently been given a diagnosis that she growing increasingly worried about gradually
had a terminal illness. She was advised to apply for a free Canine losing their independence or their health
Care Card and nominate a Dog Guardian; someone she trusts to deteriorating. Dogs Trust want to offer
sign over the care of Poppy to Dogs Trust should she need it. She’d owners peace of mind that we will be there at
then be able to spend the most time possible with Poppy and feel this difficult time to care for and rehome their
reassured that she’d be given the best possible care at Dogs Trust four legged friends should the worst happen.
when they could no longer be together.
Therefore we’re pleased to announce that we have extended our
When Poppy’s Dog Guardian contacted us to advise that her owner Canine Care Card service. Dogs Trust will care for your dog should
was now receiving palliative care and that they needed to activate you move into a care home, become seriously ill or pass away.
her Canine Care Card, Poppy was collected by Dogs Trust the very
next day. After a vet and behavioural assessment we decided the For more information on our Canine Care Card service and how
best place for Poppy would be a loving foster home. We were able to register your dog please type in this link www.dogstrust.org.
to advise the foster carers of all the information we’d been given by uk/ccc where you will find our online application form and more
Poppy’s owner regarding her life, diet and routine to enable us to information on our free service.
make this transitional period as stress-free as possible for Poppy.
Within almost no time, we were able to find very affectionate Poppy If you have any queries regarding the Canine Care Card please email
a lovely new home for her second chance at love. CCC@dogstrust.org.uk or call 020 7837 0006 and we will be happy to help.
14 www.derbylaw.net
Isle of Wight Donkey Sanctuary
Families often come to see the facility that their loved one helped
to fund and leave with a smile on their face, knowing that the gift
from a will has helped give these donkeys a better future ,whilst the
donkeys in turn have helped bring joy to another person’s life. This
must be a wonderful way to remember a loved one, knowing that
their gift has been invaluable.
Please support donkeys-and people-by leaving a gift in a will to the
IOW Donkey Sanctuary.
The Isle of Wight Donkey Sanctuary is a small, independent
sanctuary which is the forever home for 95 donkeys and a small
group of Shetland ponies. All of the animals are rescued, and have
come to the sanctuary because of the adverse circumstances that
they faced. Some came here because their owners passed away
or were taken ill , some lost their homes and their grazing and
some were just unwanted by families who thought that owning a
donkey was a ‘good idea’. The donkeys are predominantly British
and the sanctuary takes great pride in the care and welfare that
these lovely donkeys deserve and receive.
The donkeys lead an active life whilst they are with us on the island.
They interact with people in residential homes, with children in
special schools and with representatives from local charities, such
as the Stroke Association; for people in these groups the donkeys
provide a sensory experience that brings joy and happiness to their
lives.
Much of the sanctuary’s work takes place because of the generosity
of people who support our aims and ethos. Those people believe in
animal welfare, they believe in the small, independent sanctuaries
such as ours rather than large corporate charities and they believe
that animals have the right to a decent life where they are loved
FINDING YOUR
and respected. These people kindly leave gifts in their wills to VOICE IN DIGITAL
the sanctuary, and each gift is remembered on site by a plaque AND PRINT MEDIA
thanking the person for their act of giving and their kindness. These www.eastparkcommunications.co.uk
gifts have helped the sanctuary build barns, shelters and outdoor
paddocks for the donkeys.
16 www.derbylaw.net
The Open Spaces Society
The Open Spaces legal representation so we make use of our in-house expertise from
Society was founded in staff and volunteers with long experience.
1865 as the Commons
Preservation Society and Our South Derbyshire representative has pressurised the county
is Britain’s oldest national council to maintain a strong team of rights-of-way staff. He has been
conservation body. In its calling for improved signposting of paths where they leave the road,
early years it saved many and is researching unrecorded paths with the aim of having them
commons and other open included on the official map of public paths. He comments on planning
spaces in and around applications affecting public paths, commons and village greens and
London: Hampstead proposals to alter the routes of public paths. His work is replicated by
Heath, Epping Forest and other local correspondents throughout the country.
Wimbledon Common for
example. We take up hundreds of cases each year and we lobby parliament
for better, tougher laws. We have no public funding; we depend on
The 1932 mass trespass legacies and donations to support our vital work.
on Kinder Scout was a
Bolsover, Derbyshire catalyst for greater access Watch our short video to find out more about how we have used bequests
and the society lobbied for to fund our work to save open spaces and paths. https://www.oss.org.
laws giving us greater freedom to roam throughout England and Wales. uk/what-you-can-do/legacies/
The splendid county of Derbyshire is rich in open land, and it is thanks Web: www.oss.org.uk
to the Open Spaces Society that so many of its commons and green Tel: 01491 573535
spaces are still unspoilt and available for public enjoyment. Email: hq@oss.org.uk
In 1895 the society’s founders created the National Trust as a Registered in England and Wales, limited company 7846516
landholding body. The society then established local committees who Charity no 1144840
raised money to buy threatened properties for the Trust. An example
is Mow Cop, an elevated, romantic ruin in Staffordshire which the
society rescued from quarrying; it raised £400 to restore it as a jubilee
memorial to George V in 1935.
Today the society champions common land: as a statutory consultee it
scrutinises every application for works there. Commons are important
to their local communities and it is vital that the society examines all
the applications for works. In 2010 the society published guidance
to land managers, Finding Common Ground, on how to ensure that
they take account of all those with a stake in the common before they
proceed with plans which might alter its appearance or ecology.
We also advise communities on protecting their green spaces, by
registering them as town or village greens. This gives local people the
right of recreation there and protects the land from development.
It is more difficult to claim land as a green now that the Growth and
Infrastructure Act has been passed, outlawing the registration of
greens where land is threatened with development. A more recent
appeal court judgment confirmed that so called ‘trigger events’ would
preclude new applications for protection of this nature. So we are
promoting an alternative means of protecting land, by applying for its
designation as Local Green Space in the local or neighbourhood plan.
Our history of defending public paths in Derbyshire goes back a long
way. We encouraged the formation of local groups to protect public
paths; the Derbyshire Footpaths Preservation Society was founded
in 1894 and was affiliated to the Open Spaces Society for more than
a century before it dissolved in 2011. Today the society is notified of
all proposed changes to public paths in Derbyshire and our volunteer
local correspondents study them carefully, objecting if they believe the
change is against the public interest. This means that we may need to
appear at public inquiries and hearings. We generally cannot afford
www.derbylaw.net 19Words of Wisdom
Taxing thoughts for taxing times
The past few months have proved involved in completing and filing the IHT35. This is because
extremely challenging for everyone, HMRC only allows the overall loss to be calculated. I have to say
not just the legal profession. The way that the tip of selling only the shares that had decreased in value
in which we have all coped and adapted and transferring in specie those that had gone up came from my
to new circumstances has been an Probate lecturer at Chester College of Law in 1984/5, but it was
inspiration, and if anything proves that one I had remembered and was pleased to put into action.
thinking outside the box is no bad thing.
Fast Forward to only three or four years ago, when I was doing
A former work colleague of mine lost a relative last year some locum work, I spotted very much the same thing on a
following a long illness, and mentioned to me that pretty much file I had been given, only all the shares (which had been in
all the cash investments within the estate had been drawn a life interest trust) had already been sold by the Trustees,
down to pay the initial liability to Inheritance Tax, leaving just a who were winding up the trust independently. We were able
large managed fund of shares held within an ISA, which could to get back about £2,500, but it would have been more had
not be accessed till probate had been granted. The application the Trustees thought to ask first – assuming the fee earner
had been lodged at the Probate Registry when we spoke in late with conduct of the file at the firm in question had been canny
March, but how long till the grant issues is anyone’s guess. enough to spot it…..
She had watched the FTSE index fall over the month prior to
our conversation, and was concerned. I mentioned loss on sale Chris Green
relief, under which any shares sold before the first anniversary
of death at below the value at death qualified for a rebate of
IHT by substituting the lower sale value and completing form
IHT35. She thanked me and was going to look it up on line so
as to be ready with her instructions to the solicitors handing
the administration.
Afterwards, the conversation reminded me of a case I had about
25 years ago with an estate that contained a portfolio of quoted
shares. Once we got the Grant, the deceased’s daughter – and
sole residuary beneficiary – said she did not want the hassle of
all her mother’s shares and instructed me to “sell the lot”. In
those days they were all individual certificated holdings, and
dividends arrived by cheque.
As it was an IHT paying estate, I spent one lunchtime with
the Daily Telegraph open and covered the share prices page
with sandwich crumbs; I copied over the current valuations
onto a photocopy of the probate valuation prepared by the
Stockbroker with whom the firm where I worked had a
regular retainer. The result was interesting. The bottom line
value of the whole portfolio had barely altered, yet some of
the individual holdings had shifted substantially over the six
months or so since death. I separated out those which had
increased – unless it was by only a few pounds - from those
which had gone down. The end result was that the “donkeys”
had lost about £12,500. I reported back to my client that if we
split the holding and she took the shares that had increased
in value, and we only sold the ones that had gone down, we
could get back almost £5,000 in Inheritance Tax. She was
delighted, especially as I said that if she wished to sell the
ones transferred to her afterwards, the gains would be within
her annual CGT allowance provided she did not sell them all
within the one tax year. The tax rebate pretty much paid all the
costs of administering the estate.
Had I simply obeyed the client’s initial instruction, there would
not have been enough of a loss on the sale to cover the costs
20 www.derbylaw.netNo fault divorce to be enshrined in law
Legislation, now awaiting Royal Any DNA test should be conducted by a Ministry of Justice
Assent, for “no fault” divorce accredited provider (such as ourselves) and if you have such a
has recently been backed by case, please contact us, we are highly experienced and would be
the Commons with a significant happy to help!
majority. The Bill, which when
passed will be known as the Divorce, Dr Neil Sullivan, General Manager
Dissolution and Separation Act www.dadcheckgold.com
20201 removes the need to find
fault in the marriage and allows a To discuss DNA testing to establish paternity or other biological
statement of “irretrievable breakdown” to suffice. The latter relationship, please call 0191 543 6334 or e-mail: sales@
requires currently establishment of one or more of five “facts” dadcheckgold.com.
– three relate to conduct (adultery, unreasonable behaviour
or desertion and two relate to the period of separation; two Complement Genomics Ltd, the provider of the dadcheckgold
years if both spouses consent, five years if not) in order to start service, is accredited by the Ministry of Justice as a body that
divorce proceedings. This legislation follows a long campaign may to carry out parentage tests as directed by the civil courts
by Resolution and other groups, to reform outdated laws (inter of England and Wales under section 20 of the Family Law Reform
alia the Matrimonial Causes Act 1953 and the Civil Partnership Act 1969.
Act 2004), which although hotly debated and eruditely analysed2
will help to reduce conflict between separating couples. Notes
1
https://publications.parliament.uk/pa/bills/
The current process incentivises one of the spouses to make cbill/58-01/0125/20125.pdf
allegations about the other to avoid waiting for the mandatory
two-year period of separation. This can result in unnecessary 2
https://services.parliament.uk/Bills/2019-21/
conflict, discord and acrimony, which may involve the children divorcedissolutionandseparation/documents.html and
of the marriage and damage their chances in life3. The new the Impact statement from the Ministry of Justice https://
legislation removes the needs to provide supporting evidence publications.parliament.uk/pa/bills/cbill/58-01/0125/Impact%20
of one or more of the above conduct or separation facts with Assessment%20-%20Divorce%20Bill.pdf paragraphs 67-69
a statement of irretrievable breakdown. This legislation also inclusive.
removes the ability to contest the divorce.
https://acamh.onlinelibrary.wiley.com/doi/epdf/10.1111/
Council Member’s Report
3
There are many genuine circumstances and reasons for an jcpp.12893
irretrievable breakdown to occur between two people and this
may on occasion relate to the biological identity of a child 4
https://www.theyworkforyou.com/lords/?id=2020-03-17a.1390.2
Since the current crisis developed distancing, there is a huge amount There is a general view that whilst old fashioned but I do not think
with respect to paternity. On occasion of course, fabricated The Law Society has devoted all its that can happen if people can be domestic conveyancing will pick that the profession should
accusations of adultery may weaponise the biological identity efforts and resources into dealing trusted to be sensible. up quickly there is unlikely to be underestimate the value of face to
of the children, and under current law, this might be used as a with problems affecting Solicitors much commercial conveyancing face contact with clients.
and trying to keep legal services Without these constant contacts for a while.
tactic to accelerate the divorce process. For example, there may
functioning . The maintenance of ministers and civil servants would I hope you are all keeping well
be the accusation that the man is not the father of the child or the rule of law is essential. The not be aware of many of the issues Although I am told that the and busy in these unprecedented
that he has been unfaithful and fathered a child outside of the President, Simon Davis , has been that crop up from time to time. A Probate Registry has improved in times
marriage. at the forefront of this effort and little example of success is the recent weeks no one yet knows
I cannot think of a better person recent announcement that there what the effect of the new forms Michael Williams
to be leading the profession at the will be a loan scheme to help which came in on 18th May will mwilliams@bemerton.co.uk
Both of course relate to the matter of trust, which can easy easily present time. Solicitor Tribunal Judges whose be and we are still being told that
be assumed or earned, but when lost, is impossible to regain – sittings and therefore income Grants will take in the region of
once the spectre of paternity has been raised, it is impossible to Last week at a special virtual came to an abrupt halt just before eight weeks. Please let me have
meeting of Council we voted the lockdown. details of any specific or general
reverse and constantly raises its head at a time when the best
overwhelmingly to postpone the problems so I that can feed them
interests of the child should be foremost. The debate in the Society’s AGM until October with The backlog in criminal cases is a to Simon Davis who can take them
Lords4 was fascinating. consequent delay to all elections. real worry but I think every effort is up at the highest level. Following
This preserves very necessary now going into finding solutions as my existing representations to
continuity and avoids Simon having as I write this some jury trials have him he is taking matters up with
Fortunately, the availability of DNA testing for paternity (or other
to relinquish the reins in mid crisis. restarted. HMCTS on the 28th May and I will
biological relationship such as siblingship) is one of the few advise of the outcome. We are
areas in divorce proceedings where unequivocal evidence can be Simon has been In almost daily An alarming survey recently still a long way from the situation
obtained to support the case. If the parentage of a child is at Contact with the Lord Chancellor suggested that as many as 70% where the Manchester District
and The Law Society has been very of firms were seriously worried Registry could be relied on to
issue, then a DNA test becomes a vital piece of information to
much part of the processes relating that they would not survive until process applications within ten
help alleviate either genuine or vexatious claims and minimise to the operation of courts, virtual Christmas. Whilst I recognise that working days.
any harm to children from the break-up, whether this is under hearings, safety of Solicitors, the those most under threat are most
either the current or the new legislation. Indeed, a DNA test can need for legal advice eg for victims likely to have responded to the Many Solicitors have been
of abuse, legal aid generally, and survey,it was a chilling response. able to work from home and I
only be to the benefit of children, who have a fundamental right
pressing for the property market Certainly a revival in conveyancing suspect firms with very expensive
to be sure of the identity of their biological father, irrespective of to be restarted. Although we all should bring much needed cash offices may wish for some of
circumstances. appreciate the need for social flow. that to continue. I know I am
22 www.derbylaw.net www.derbylaw.net 23Experts – when even the lawyers get it wrong
One of the most Justice Arnold came down from the Court prior art, and finally as this is applied to
notorious, and of Appeal and sat as a High Court judge in the patent being considered. Thus the
tragic, cases of the Patents Court because of the shortage expert would not know what conclusion
an expert getting of high court judges who can hear such on the patent he was asked to reach, and
it wrong was complex cases. he would not make his conclusions fit the
that of Prof Sir desired outcome.
Roy Meadow, Arnold LJ referred to the case of MedImmune
an eminent Ltd -v- Novartis Pharmaceuticals UK Ltd & Apparently this was not done, nor was
paediatrician, Ors [2011] EWHC 169 (Pat) where the same there a technical manual so that all
who gave judge, then at the high court, summarised experts could work to the same language
Chris Makin
evidence for the the recent history of expert witness, starting and agreed principles. But, worse, one
prosecution in the case of R -v- Sally Clark. with CPR Part 35 and the Practice Direction, Professor did not exhibit his CV to his
Mrs Clark, a lawyer married to a lawyer, and then the Protocol for Instruction of report, and he did not address issues in
had lost two babies through cot death. The Experts to Give Evidence in Civil Claims, one of his learned articles which may have
headline to an article in the Daily Telegraph where, setting out the expectations of had an influence on his conclusions in this
in 2005 reads: “How could an expert like Roy experts, he also emphasised the duties of case. These are basic errors which, as the
Meadow get it so terribly wrong?” It starts: instructing solicitors by putting in italics, judge said, should have been remedied by
“It is hard to think of a more terrible wrong no fewer than six times: “It is essential that instructing solicitors.
that Professor Sir Roy Meadow could have both those who instruct experts and experts
inflicted upon Sally Clark short of raping or themselves…” or similar words. And he Does all this matter? Well, it did for the
murdering her.” Sir Roy’s evidence at her ends the section with 8.1 Instructions – Claimants, since the judge found that the
trial for murder was that the chance of “Those instructing experts should ensure that patents they thought they held were found
a middle-class family losing two babies they give clear instructions…” to be ineffective, and these were important
through cot death was 73 million to one. (and valuable) patents concerning anaemia
He then goes through Whitehouse -v- Jordan etc. And in the sort of cases which you or I
With that, conviction for murder was [1981] 1 WLR 246 with Lord Wilberforce’s are generally involved in, such basic errors
inevitable. Sally Clark served three years, immortal words: “…expert evidence should not be made by an expert who knows
won her freedom on her second appeal, presented to the court should be, and should what he is doing, who has taken the trouble
but died of alcoholic poisoning shortly be seen to be, the independent product of the to learn how to be an expert as well as
afterwards. Utterly tragic. expert, uninfluenced as to form and content knowing his own profession very well.
by the exigencies of litigation.” We see those
There were two problems with Sir Roy’s words running through the Ikarian Reefer But these cases do emphasise the
evidence. First, as the GMC heard when and into CPR Part 35. importance of lawyers instructing their
taking misconduct action against him, the experts properly, or they could be the target
true figure was a far more modest 77 to one. Clause 107 of MedImmune could hardly be of such words as Arnold LJ used in clause
Second, and this is fundamental to expert clearer: 1 of his judgment in MedImmune: “It is vital
evidence, CPR 35.3 (1) reads: “It is the duty of “…the parts of the Protocol that I have that the task of the experts is not made more
the expert to help the court on matters within emphasised above make it clear that the difficult by the lawyers than it need be.”
their expertise.” (My emphasis) lawyers who instruct expert witnesses have
important responsibilities too. In short, it is Biog: Chris Makin has practised as a forensic
Sir Roy was known for what was called the responsibility of the lawyers to ensure that accountant and expert witness for 30 years,
“Meadows’ Law”, that “One sudden infant the expert is properly instructed. A cardinal latterly as Head of Litigation Support at a
death is a tragedy, two is suspicious, and three aspect of properly instructing the expert is to national firm. He has given expert evidence
is murder.” But he was not a statistician; ensure that the expert is put in a position to about 100 times. He also performs expert
that was not “within his expertise.” Sally express an independent and impartial opinion. determinations.
Clark was not responsible for the murder of This may involve more than simply telling the
her two baby sons, yet this expert’s evidence expert that that is his or her duty and providing Chris is a fellow of the Institute of Chartered
set in train a line of events which resulted in the expert with copies of the Practice Direction Accountants where he has served on the
her own death. and Protocol.” Forensic Committee, and as an ethical
counsellor; he is a fellow of the Chartered
This is an extreme example of an expert That was Mr Justice Arnold in MedImmune Management Institute, a fellow of the
getting it wrong and, regrettably, criticism of in 2011. So what went wrong in Akebia in Academy of Experts where he serves on the
experts by judges is not unknown. I see this 2020? Well, this case was enormously Investigations Committee, and a mediator
when sitting on the Investigation Committee complex, as I say. Patent law is particularly accredited by the Chartered Arbitrators.
at The Academy of Experts though, no doubt complex and, as Arnold LJ said, there
because of excellent training there, criticism are often eminent academics chosen He practises as a mediator, from his home
of our members is very rare. as experts who know the complexities in West Yorkshire and his rooms at 3 Gray’s
of their subject, but not necessarily of Inn Square, London WC1R 5AH, telephone
But is it always the expert’s fault? patent law. So it is often necessary for 020 7430 0333. He has mediated 100+ cases
Apparently not. In a recent case, it was lawyers to work closely with their experts, so far, on a huge range of subjects, with a
the lawyers instructing the experts whom perhaps even drafting parts of the expert’s settlement rate to date of 80%. For more
the judge criticised. The case was Akebia report. And it can be advantageous to see his website with videos:
Therapeutics Inc and Otsuka Pharmaceutical instruct experts in sequence (“sequential
Co Ltd -v- Fibrogen Inc [2020] EWHC 886 unmasking”), first asking their opinion on www.chrismakin.co.uk
(Pat), which was so complex that Lord common general knowledge, then on the chris@chrismakin.co.uk
24 www.derbylaw.net www.derbylaw.net 25You can also read
