Happy New Year to all our subscribers!
The team here at LNTV HQ would like to take this opportunity to congratulate LNTV Expert Panel Member for the Family channel, Anne-Marie Hutchinson OBE (@lawabduction), a partner at London firm Dawson Cornwell (@Dawson-Cornwell), on being made honorary Queen’s Counsel.
Well deserved, and a great start to 2016!
https://www.gov.uk/government/news/queens-counsel-in-england-wales-2015-to-2016
http://www.dawsoncornwell.com/en/about_amh.html
Here at LNTV HQ we are starting to work our last few days before closing the doors on another great year, which saw us deliver 78 excellent continuing professional development/executive education television programmes to hundreds of subscribers, interview more that 150 legal experts including Mr Justice Coulson, upload our programme highlights to YouTube (https://www.youtube.com/channel/UCmxZF_16AYBqklYdMeDqybw), continue to engage with our subscribers on Twitter (@LegalNetworkTV), and welcome two new Writer/Presenters to the LNTV family.
We return refreshed on 4th January, already excited at the plans we have for 2016.
So a big thank you to all our subscribers, readers, and followers – it’s been a great year, and we can’t wait to follow it up with an even better one.
Wishing you the very best for the holiday season, and we hope 2016 brings you everything you hope for.
From all at LNTV HQ.
We were recently lucky enough to have Lucy Greenwood, a partner with the International Family Law Group, in the studio to share her knowledge and expertise of marital agreements (http://www.iflg.uk.com/portfolio/lucy-greenwood). Lucy is also a member of our Legal Expert Panel for the Family channel, and we are delighted to have her on board, feeding in ideas for future Family channel topics for continuing professional development (http://www.lawcolmedia.com/%5Cfamily.aspx). Lucy actually suggested we make this programme!
Here is a sneak peak of the on-camera interview we conducted with Lucy, ahead of the programme’s release on 25th January:
Interviewer: How best can a marital agreement address the issues of needs and fairness?
Lucy Greenwood: Well, this is the very difficult question that we face with every pre-marriage agreement. For example, it’s commonplace to treat the marital home a little bit differently from any other assets, even if there has been some pre-acquired money going into that property. You’ve basically got to consider – at each stage of the marriage – is the person that’s leaving the marriage without as much money going to be able to meet their needs? So obviously they’re going to have to have somewhere to live. What is deemed reasonable for their needs – and when we hear the phrase ‘real needs’ which is another phrase about a discretionary test for needs – it’s very hard to assess. So you look at the standard of living to some extent and you consider what a court would do if it were looking at the scenario without a pre-marriage agreement, and because it’s a compromise you would look to see what the lower end of that bracket that the court award would comprise. And it’s those sorts of weighing up kind of decisions that you have to make, and there is no right or wrong answer. But if you don’t meet needs it’s pretty clear from the case law that there’s a great risk that the court will still intervene either partially or totally in the agreement. But it mustn’t be forgotten that even if it does intervene, because you’ve got this agreement, it’s likely to calibrate the award that is made. And so they are still very useful tools even today.
Interviewer: What common misconceptions do you find clients have in relation to foreign marital agreements or the enforceability and other jurisdictions of agreements entered into here?
Lucy Greenwood: Well, this is a very common myth. For a start, many people think that they could only divorce in the country they married, which is obviously not true. And similarly, they forget that it’s not actually where you enter into the marital agreement that counts, it’s where you are if and when the marriage breaks down. And so what we tend to do is we will address which country somebody is most likely to live in and get advice from those countries as to what their rights would be. We have very many situations where clients will come into the office and say ‘it’s alright, we’ve got a community of property or we’ve got a separation of assets, property categorisation, property regime in a European country, so they can’t touch my assets on…’. And we say unfortunately it doesn’t work like that in England, it’s nothing but a factor. It’s just one of the many section 25 factors that we have to look at. And, of course, depending on the weight and the understanding and the disclosure and all of the fairness aspects around the creation of that agreement the court may or may not abide by that agreement, but many have a real shock when they come in and find that it didn’t really mean as much as they thought it did. There’s also the issue of Brussels II legislation, and first in time to issue, which can’t be usurped by a marital agreement. So this can have a very significant effect. So even if you’ve got a marital agreement in a particular country if you don’t get first in time when it comes to issuing a divorce procedure there’s still a risk that another country, like England, might be looking at your French marriage agreement. And, of course, there’s the maintenance regulation, and if you’ve got maintenance aspects in the pre-marital agreement, spousal maintenance I’m talking about, not child maintenance, but if you’ve got a spousal maintenance agreement there that’s a prior agreement and therefore you could find that different parts of the case are being dealt with in different parts of the world.
Interviewer: So what specific clauses should practitioners ensure that they draft into marital agreements where there’s a possibility that the couple may move abroad?
Lucy Greenwood: There are certainly no hard and fast rules in relation to this particular question. You really have to look at the scenario that you’re faced with. You need to consider whether you’re going to put in a sort of catch-all phrase to say that this agreement should be recognised around the world. That’s not going to be enough, but it gives an indication. You look at choice of law clauses and in relation to EU countries you can actually sometimes, if you’ve got a strong enough connection, actually choose the country’s laws which will apply to the pre-marriage agreement but, again, Brussels II can usurp that. So there is nothing easy about looking at jurisdictional aspects in marital agreements. And many people think that you can do one and it’s definitely going to be binding all round the world, it is not. You really have to tailor it to the countries that are most likely to be the countries in which the parties are living and consider the factors and the pros and the cons of choosing a jurisdiction, if that’s what you’re trying to do, over being silent on that issue.
Interviewer: And what particularly public policy or religious issues might need to be taken into account?
Lucy Greenwood: Well, this is quite interesting. Generally with pre-marriage agreements the consensus is that child maintenance should not be dealt with in a pre-marriage agreement or if it is it’s definitely something a court could review because it would be against public policy to bar the courts from doing that. But there are other more perhaps less obvious ones when you’re dealing with certain countries. So in countries, for example, like Singapore and Dubai where same sex marriages or even homosexual relations are not actually recognised or accepted or legal then you’re not going to be wanting to do an agreement or seek to uphold it in that country if it’s for a same sex couple. But there are others that are not so obvious. And, for example, adultery clauses are becoming something that’s been debated recently and some people are advocating where clients want to make a point that somebody should not benefit as much if they commit adultery, that should go into the agreement. But, again, be cautious with places like Dubai where adultery, again, is illegal and the implications for your potential client of even having that word or the court learning that they’re getting less because of it could have very major implications for that client. So it’s those sorts of factors, cultural factors, religious factors. You might want to cover, for example, dealing with the Get in the Jewish pre-marriage agreement so that it’s clear as to how that process is going to be undertaken. Just those sorts of things.
Until next time…
Here at LNTV HQ many of us looked forward to the extra hour in bed on Saturday night, together with lighter mornings as we wait at train stations to start our commute, but the pay off is that evenings will now be getting darker earlier, and that is something we are not such great fans of. Someone from the team who shall remain unnamed for fear of deserved reprisals, has even declared that they have bought their first Christmas present. Don’t worry, appropriate action will be taken.
Meanwhile in the studio we were fortunate enough to have Richard Kenyon, Head of Employment and Pensions from Fieldfisher LLP, to talk to us about the new Modern Slavery Act 2015, and its implications for companies and organisations. Here is a brief extract from that upcoming programme:
Interviewer: What requirement does s.54 of the Modern Slavery Act 2015 impose on organisations?
Richard Kenyon: Section 54 requires commercial organisations to produce an annual slavery and human trafficking statement for each financial year, and that needs to set out what the organisation has done, the steps its taken during that year to ensure that slavery is not taking place either anywhere in the organisation or anywhere in its supply chain. And once the statement’s been prepared it needs to be approved in the case of a company – by the directors, the board of directors of the company, signed off by one of those directors and then published on the company’s website with a link – a prominent link from the webpage.
Interviewer: And what information should be in a slavery and human trafficking statement?
Richard Kenyon: Well, the type of information that should be included is really left up to the organisation. The Act does give a high level framework of the type of information that might be included, and that includes a number of things. First of all, a description of the organisation itself and its supply chain, then the policies that the organisation has in relation to modern slavery, the type of due diligence exercises it carries out within its organisation and its supply chain, how it identifies risk and what sort of Key Performance Indicators it puts in place to ensure that its supply chain are not engaging in modern slavery and, finally, the type of training of the employees in the organisation that the organisation undertakes.
Interviewer: Given that an organisation can discharge its duty simply by stating that its taken no steps, why does the government think that any organisation is going to go to some considerable trouble to supply this information?
Richard Kenyon: That’s right that an organisation can comply with the legislation by putting out a statement that says we’ve taken absolutely no steps to ensure that modern slavery isn’t taking place. But the government is introducing this legislation in a kind of compliance and social shaming way, so that the statement itself will open up the organisation to public view, and the idea is that through pressure from NGOs and the public, and through peer group pressure, that organisations will want to show that they take this issue seriously. And therefore, peer group pressure will result in more and more information coming into the public domain as organisations take more and more steps is the idea.
Interviewer: So which organisations does this requirement apply to?
Richard Kenyon: Well, it applies to commercial organisations, which is bodies corporate or partnerships, which produce goods or services and which have a turnover of £36 million or more, some of which is done in the UK, so it’s businesses that are operating in the UK which have a turnover of £36 million or more.
Interviewer: And there was some debate, wasn’t there, about where to set the threshold of turnover? How did they arrive at £36 million and what are the reasons behind it?
Richard Kenyon: Well, the government consulted over a number of figures, the lowest was £36 million and the highest was a billion. In fact, only 7% of the respondents to the consultation suggested that it should be a billion pound turnover. The government ultimately settled for £36 million largely because, first of all, that was the number that the majority of respondents to the consultation requested; secondly, there is in the Companies Act a definition of medium sized businesses which is businesses which have a turnover of £36 million or less, so £36 million or more is large businesses. And the rationale is that large businesses will have the commercial clout to push this issue down through their supply chains by requiring their suppliers to provide information about what they’re doing in relation to modern slavery.
Recently we were lucky enough to have Steve Wilmott, Director of Intelligence and Investigations at the Solicitors Regulation Authority in the studio to discuss cyber security matters as part of our upcoming Practice Management & Compliance channel programme, ‘Cyber Security for Law Firms’. Here is an exert from that forthcoming interview:
Interviewer: Why might law firms be targeted for cyber security attacks and what parts of the firm are particularly vulnerable?
Steve Wilmott: Well, law firms are very reliant on information and they use that information to simply move clients’ money from one account to another, whether it be to a client or whether it be to another law firm, for example, if there was a conveyance in a house purchase. And they rely on that information to have the right bank account and the right details so that an individual or a firm receives the money when they should. Now what we’ve seen in relation to phishing, and we call it – and another terminology is e-mail diversion, is within the course of that transaction a firm may receive an e-mail very late in the transaction to say we are the corresponding firm, we’ve just changed our banking details, don’t send the money to our usual account, this is our new account, please send it there. Law firms are hugely attractive to criminals and organised crime, and the main reason is they hold huge amounts of money in their client accounts, sometimes many, many millions of pounds. Only two years ago the Financial Action Task Force – when they undertook a money laundering evaluation of law firms internationally – said the same, that law firms are hugely attractive to organised crime for that very reason.
Interviewer: Attacks and breaches can come from different sources, so what are the main categories that these fall under?
Steve Wilmott: Well, the one that we’re seeing by far is criminal attacks, and they’re simply designed to obtain money criminally, through a criminal act, from solicitors’ firms. We get one or two where it may well be a disgruntled employee and that usually involves a destruction of data, destruction of information, which can have an effect on a law firm, but the principal one is trying to obtain money from law firms through a criminal act.
Interviewer: And in what ways do a law firm’s own employees present a risk to cyber security?
Steve Wilmott: Well, all law firms should have practices and procedures in place to make sure that the person they are speaking to is genuine, and that they keep their passwords, in particular, secure. If they receive, for example, instructions to send money to another bank account via e-mail or the internet then it’s very wise to make sure that there is a policy in place to ensure the veracity of that change by making further inquiries and not just relying on the initial contact. What we’ve also found as well is that clients of law firms are receiving information from criminals, for example, they’re just about to pay a deposit on a house, or Stamp Duty to a solicitor, and what we found there is that they’ve also received similar e-mails and those e-mails have said we are your solicitor, we’re just about to receive money from you, but we’ve just changed our bank account, please send it to this account. It’s still the same law firm, but it’s another bank account, and of course that bank account is operated by criminals, and substantial amounts of money have been stolen direct from clients in that respect rather than law firms.
Interviewer: So if a solicitor or a law firm thinks they’ve been the subject of an attack what’s the best thing for them to do?
Steve Wilmott: If you think you’re under attack and whether this be by e-mail or by telephone contact then immediately stop the contact. If it’s a telephone call then stop that telephone call. Do not use the telephone that you are using, so do not use any numbers to call that have been given by the individual that has contacted you. So terminate the call and use another telephone, and use trusted contacts that you can call to try to ensure the veracity of that original call. Now they can be very clever, sometimes the telephone screen that identifies the caller, the criminals can manipulate that so that it looks as if it is from a genuine bank, so ignore that. Also ignore any other call, telephone numbers, other than the ones that you know and trust. But the main thing is if you have any form of concern whatsoever then you must terminate that transaction and seek independent means of establishing the veracity of that contact. The second thing is if you have been the subject of a fraud then immediately contact the police, your insurer and your bank, importantly, and the Solicitors’ Regulation Authority, all of which can help you in various means to assisting in trying to establish, one, who’s done this, two, what the impact on that business will be and, thirdly, trying to recover some of the money that may have been taken. Perhaps, the three most important things is security software, keeping passwords safe and also, actually, making sure that your banking details are as secure as can be.
A big thanks to Steve for giving up his time to come and speak to us on this important subject. Until next time…
The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 come in to force in England on 1st October 2015 (http://www.legislation.gov.uk/uksi/2015/1693/contents/made).
The Regulations require landlords of private rented properties to install a smoke alarm on each storey of the property on which there is a room used wholly or partly as living accommodation. In addition, a carbon monoxide alarm must be installed in any room which is used wholly or partly as living accommodation and contains a solid fuel appliance.
At the start of each new tenancy the landlord of their agent must carry out tests to ensure that the alarms are in proper working order on the day the tenancy begins. For the purposes of the Regulations, a new tenancy is one granted on or after 1st October 2015, but does not include renewals or statutory periodic tenancies arising from fixed term tenancy that started before this date.
Where it is believed that a landlord is in breach of the Regulations the local authority must serve a remedial notice on them within 21 days. Landlords will then have 28 days to comply, or risk penalty charges of up to £5,000. The local authority must also, with the occupant’s consent, arrange for the remedial action specified in the notice to be carried out.
As we gaze out of the window at LNTV HQ this week we are slightly confused. We are sure that back in June we were told that summer was officially starting, and we’ve been patiently waiting ever since. We admit there has been the odd day of blistering heat, only to return to cloud, wind, rain and cold the very next day. Today there were mutterings of extra layers being needed, and even a tentative suggestion that we might need to consider the possibility of turning the heating on. This is early September, we have to remind ourselves, while scrutinising the calendar and zipping up our coats. Perhaps there will be a late summer, a glorious few weeks in which to salvage something from what will otherwise go down in history as one of the wettest summers on record. We can only hope.
However, our frustration at not seeing enough of the big yellow thing in the sky is happily distracted this week by news that the finishing touches have just been added to the 13th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury cases, and should be published later this month. We feel a future programme topic in the air! Thanks to friend of LNTV, Len South (on Twitter @rolypolyspaniel), for drawing our attention to it.
In Halle v London Borough of Waltham Forest [2015] UKSC 34 (https://www.supremecourt.uk/cases/docs/uksc-2014-0185-judgment.pdf), the Supreme Court got to grips with whether a person had made themselves intentionally homeless.
In this case the claimant, (H), had given up her tenancy of a bedsit in 2011, due to not being happy about smells there. She moved in to temporary accommodation until she was asked to leave due to overcrowding. She therefore applied to London Borough of Waltham Forest Council for accommodation as a homeless person. The Council decided that H was homeless, she was eligible for assistance, and she did have a priority need, but she had become homeless intentionally. A reviewing officer subsequently came to this same decision, due to the fact that she had given up her room in the bedsit, and so had stopped occupying accommodation available to her. H’s argument that she could not continue to stay in the bedsit due to the smell was rejected.
H had given birth to a daughter after leaving the bedsit. She submitted that, because the bedsit was for single people only, she would have had to have left the bedsit in any event on the birth of her daughter. She argued that the birth of her baby broke the chain of causation between her intentionally leaving the bedsit, and her homelessness when the Council considered her application for accommodation.
After agreements with the reviewing officer’s decision from both the County Court and the Court of Appeal, the matter went before the Supreme Court.
The Supreme Court had to consider whether the reviewing officer was entitled to come to the conclusion that H had become intentionally homeless when she left the bedsit, considering that should would have been homeless anyway by the time her application was considered, due to her having given birth to a baby who would not be allowed in the bedsit.
The Supreme upheld H’s appeal. They agreed that the birth of H’s baby severed the casual connection between her choosing to leave the bedsit and therefore making herself homeless, and the homelessness she was subject to when the reviewing officer made his enquiries. It could not be said that if she had chosen not to leave the bedsit she would not have become homeless.
As a result of this important decision, local authorities will have to carefully consider the actual cause of an applicant’s homelessness, both when making an initial decision, and on review of such applications.
Until next time…
We had the lovely Jonathan Hearn in the studio this week to talk all things employment disciplinary and grievance procedures, including the cases of Toal v GB Oils Ltd (2013), Roberts v GB Oils Ltd (2014), and changes to the Acas Code. Jonathan is the Legal Director at DLA Piper, and has been a regular contributor to our programmes over the years, for which we are very grateful: (https://www.dlapiper.com/en/uk/people/h/hearn-jonathan/)
Here’s a sneak peak of the interview with Jonathan, before release of the full programme in July:
Interviewer: Fairness and transparency are two of the basic principles to be aware of when handling workplace disputes. What are the key provisions of the Acas Code?
Jonathan: Okay, well, you’ve got things like acting consistently, and you can see, you’ll see that most of these are really for the employer, acting consistently. Having a proper process of investigation to establish some facts, giving an individual a right to know what they’re said to have done and have an opportunity to respond to it. A right of appeal if they’re unhappy with the outcome, and a right to be accompanied by a companion of their choice.
Interviewer: Looking at the right to be accompanied, this is set out in s.10 of the Employment Rights Act 1999. What exactly does s.10 say?
Jonathan: Okay, so a person has a right to be accompanied by a colleague or a trade union official at a formal meeting as part of a capability or conduct process or a grievance process. The person accompanying can be a colleague or a trade union official and, incidentally, the trade union angle has nothing to do with trade union recognition or anything like that, it’s if the individual is in a trade union and an official will come along with them. The employer has to allow postponement of up to five days if the person isn’t available. The person can speak in the meeting but mustn’t answer questions on the employee’s behalf.
Interviewer: So the request that the worker makes has to be reasonable. Does that mean that they’re restricted in their choice of companion?
Jonathan: Well, the request has to be in a reasonable amount of time before the meeting for the employer to respond to it and to accommodate it, and it used to be that the Acas Code said that, or gave clear indications, that the choice of companion had to be reasonable, as well as the exercise of the right to request had to be reasonable. So the choice of companion Acas considered and the Code used to say that, for example, if the person requested was a long way away then that would be an unreasonable request, or if the choice of person would disrupt the process then that again would be an unreasonable request.
Interviewer: That seems fairly sensible. What’s wrong with that?
Jonathan: Well, the problem with it is that it fetters, it restricts the choice of companion and it appears now from more recent case law that we have that that wasn’t the intention, that’s not how s.10 should be read. So we have the case of Toal v GB Oils where the Employment Appeal Tribunal has held that the right, exercising the right to be accompanied has to be exercised reasonably, for example, has to be exercised in good time.
Until next time…
Twas’ the last working day before Christmas, and all through edit suite,
Not a creature was stirring, not even a tap of feet.
The studio cameras were turned off, and put in the store room with care,
In the hopes that time away, would find them still there.
The Producers were nestled, all snug in their room,
Working frantically, as they could see 5 p.m. loom…
As you may be able to tell, here at LNTV HQ we are preparing to close the doors on another great year, which saw us deliver 78 fantastic continuing professional development/executive education television programmes to hundreds of subscribers, interview more that 150 legal experts, start a new blog, begin to upload our programme highlights to YouTube (https://www.youtube.com/channel/UCmxZF_16AYBqklYdMeDqybw), deliver our programmes to multiple browsers with the additional ability to being able to watch them on a large number of different platforms (so you know the first thing to try out on that new tablet/smartphone you’re hoping for on Christmas day!), and launch a better, easier to use version of our login page (check it out: http://www.lawcolmedia.com).
We return refreshed on 2nd January, already excited at the plans we have for 2015.
So a big thank you to all our subscribers, readers and followers, it’s been a great year, and we can’t wait to follow it up with an even better one.
Happy Christmas, and we hope 2015 brings you everything you wish for.
From all at LNTV HQ.
LNTV insight 