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Expert Witness Legal News

Privilege confined to legal profession, rules Supreme Court

Picture of Court 2 at the Supreme Court for Your Expert Witness storyOn 23 January the Supreme Court decided by a majority of five to two that legal advice privilege (LAP) – or legal professional privilege (LPP) – only applies to qualified lawyers; that is solicitors and barristers. The decision came as a result of an appeal in the case of Prudential and one of its subsidiaries, and a special commissioner for income tax. Prudential had argued that advice given by its accountant should attract the same LPP as it would have had it been given by a solicitor.

In the introduction to the judgement, Lord Neuberger said: "The specific issue raised by this appeal is whether, following receipt of a statutory notice from an inspector of taxes to produce documents in connection with its tax affairs, a company is entitled to refuse to comply on the ground that the documents are covered by legal advice privilege (LAP), in a case where the legal advice was given by accountants in relation to a tax avoidance scheme. The more general question raised by this issue is whether LAP extends, or should be extended, so as to apply to legal advice given by someone other than a member of the legal profession, and, if so, how far LAP thereby extends, or should be extended."

Last Updated on Wednesday, 30 January 2013 18:20


Open the door to talented women leaders, urges Law Society president

Law Society LogoLaw Society president Lucy Scott-Moncrieff has praised the flexible working practices of leading law firms and businesses for opening the boardroom door to talented women.

A major survey of leading lawyers commissioned by the Law Society found that despite big steps forward by many leading firms, some employers are paying mere lip service to flexible working.

The survey, which was conducted by global legal information and practice solution providers LexisNexis and saw nearly 1,200 lawyers respond, aimed to establish the main reasons for few women making partner and even fewer reaching management boards despite soaring numbers of women entering the profession.

Following the survey, a high-level international summit attended by over 130 delegates from top City firms, boutique practices and senior in-house counsel from major corporations including Ashurst, Deloitte, Herbert Smith Freehills and BP produced a series of recommendations aimed at addressing the problem. These include introducing gender targets and embedding flexible working practices in corporate culture.

Law Society president Lucy Scott-Moncrieff said:

'An increasing number of firms have genuinely embraced and adopted modern flexible working practices, allowing better work-life balance. These firms are attracting more talented women and men with boardroom potential.

'But there remains an uncomfortable truth. In some firms, where the opportunities for those wanting to strike a balance between high-flying work and family life are still scarce, men dominate the boardrooms. Unwittingly, these firms may be losing talented women and promoting mediocre men.

'It is not enough to merely pay lip service to the benefits of flexible working. It is not acceptable to consider women who take advantage of flexible working practices as somehow lacking commitment. The risk is that boardrooms will be full of men only some of whose talent warrants their senior positions. If career progression was based on pure merit, some male business leaders and law firm senior partners would never even have seen the paintings on the boardroom wall. This is disappointing for the talented women who lose out, but is also damaging to the organisations which lose what they have to offer.'

Minister for Women and Equalities Helen Grant said:

'Women are at the heart of this country's economic growth strategy. We need to do all we can to make the most of their talents and skills and that means providing them with the support to balance family life and a career.

'That is why the government is addressing the barriers faced by women, to ensure the workplace and, above all, our society match the needs of women in modern Britain. The report published today by the Law Society raises some issues, most importantly flexible and part-time working, which I fully endorse. This is crucial if we want women to stay in the workplace and will help businesses to retain talented staff.

'We also need to encourage and support employers to put the right measures in place. But the way to do this is not through special treatment or mandatory quotas. The evidence shows that our voluntary approach is working; in the past six months women now represent 44 per cent of FTSE100 Board appointments. We are taking the same approach with Think, Act, Report – a voluntary scheme that encourages companies to think about how to offer equal opportunities for women in the workplace. This approach is driving real change with more than 1.2 million employees – 11 per cent of the eligible workforce – now working for companies who support the scheme.'

The report, which details the recommendations and survey findings, was presented at an event hosted jointly by the Law Society and the Interlaw Diversity Forum tonight 10 January 2013 to an audience of nearly 100 people, including senior partners and in-house counsel from top firms including CMS Cameron McKenna, BP and Wragge and Co.

Firms including Ashurst, Eversheds and Hogan Lovells have already introduced targets for the number of women in high-level positions, while seven law firms, including magic circle firm Linklaters, have signed up to the government's Think, Act, Report initiative.

Last Updated on Friday, 18 January 2013 14:50

Bar’s third-party service gets FSA approval

Picture of money for Your Expert Witness storyThe Financial Services Authority (FSA) has granted regulatory approval under the Payment Services Regulations for the Bar Council's scheme to allow barristers to hold client's funds via a third party. The new service, known as BARCO, will allow clients to instruct barristers directly, instead of having to appoint them via solicitors. BARCO will initially involve a limited number of chambers, with a full roll-out expected in the spring.

According to a statement issued on 10 January by the Bar Council: "BARCO provides a straightforward, easily accessible, client-focused facility, whilst maintaining the Bar's high quality and cost-effective services."

BARCO is owned and operated by the Bar Council and provides an escrow service to receive funds from clients under a contractual arrangement, which are required in relation to on-going legal services for legal fees, alternative dispute resolution and other costs for experts' services, disbursements and settlements. The payment of funds from the escrow account is determined by the contract, allowing barristers to offer a full range of legal services without breaching their Code of Conduct by handling client money themselves.

Michael Todd QC, Chairman of the BARCO Committee and immediate past chairman of the Bar, said: "I am delighted that the FSA has granted approval to BARCO. We believe that it will offer an imaginative and unique solution for clients all over the world, making it easier than ever before to work with the Bar, whilst maintaining the Bar's high quality and cost-effective services.

"We look forward to sharing more details about the progress of the first phase in due course."

At the launch of the scheme in September he said: "Demand for barristers' advocacy and advisory services is growing all over the world. Domestic and international clients of all sizes, which regularly turn to the Bar, need a trustworthy and transparent vehicle to manage payment of their legal and litigation costs.

"BARCO is more than simply a bank account. It provides clients with the facility seamlessly to access the full range of the Bar's high-quality services, and it enables the Bar to change its business without changing the way it does business.

"The Bar is a forward-looking and modern profession which can tailor its services to ensure it remains relevant to its diverse and growing client base, and BARCO provides an ideal platform through which the Bar can handle its financial affairs.

"It is a significant investment in the Bar's future. It is good for clients, good for the Bar and good for competition in the legal services market."

Last Updated on Thursday, 10 January 2013 18:17

Dispute numbers fall as recession fades

The total number of commercial and civil disputes resolved through arbitration, mediation and adjudication fell in the two years to 2011: from 27,110 in 2009 to 21,260. The fall was attributable to the abating of a surge in disputes in the immediate wake of recession, according to a research report published by the financial services lobby group TheCityUK. According to the report, London and the UK remain well positioned internationally in the conduct of dispute resolution.

Announcing the publication of the report, TheCityUK said: "London is the most preferred seat of arbitration and companies are twice as likely to choose English law over any other law. The new Rolls Building in London, opened in 2011, is helping to sustain the UK's reputation as the first choice for business law."

The report, Dispute Resolution in London and the UK, was sponsored by the Law Society, the Bar Council, the Centre for Effective Dispute Resolution (CEDR) and legal consultancy Jomati. In addition to providing a comprehensive gazetteer of organisations acting in the UK to provide dispute resolution, it offers an overview of the alternative dispute resolution forums offered by the UK to international organisations.

"Cases involving international parties to a dispute tend to be heard in a number of the specialised courts in the UK, notably the Admiralty Court, Commercial Court, the Technology and Construction Court and Chancery Division," the report says. "The use of these courts indicates a preference by foreign parties to litigate in the UK. Factors motivating parties to choose one of these specialist courts as the venue for dispute resolution include: specialist judges drawn from the best specialist practitioners in the field; efficiency and speed; consistent decisions; enforceable judgments; and preference for London as a location.

"These courts also have an important role with respect to arbitration claims, including: determining whether an arbitration agreement is valid; determining whether an arbitration tribunal has been properly constituted; seeking the courts' powers under the Arbitration Act 2006 to support arbitral procedure; and challenging an arbitral award."

Those factors have resulted in companies being twice as likely to choose English law over other governing laws for arbitrations. English law was chosen by 40% of companies and New York state law by 17%. The common costs of arbitrations in the rest of Europe are also 18% higher than in the UK, according a 2011 survey of 20 arbitral organisations by the Chartered Institute of Arbitrators.

• Dispute Resolution in London and the UK is the latest in a series of reports on the subject published by TheCityUK. The reports have been published biennially since 2006 and every three years prior to that.

Family mediation scheme extended

Membership of the Law Society’s family mediation scheme will be extended to all qualified family mediators from April, according to a report in the society’s journal, The Gazette. Currently, membership is restricted to solicitors and fellows of the Chartered Institute of Legal Executives.

The society said in a statement issued on 3 December: “In preparation for a single-standard across family mediation, the Law Society has decided to extend access to its scheme to all suitably qualified family mediators, not just solicitors. From April 2013, those mediators who are currently competence-assessed by the Family Mediation Council will be able to passport across to the Law Society Scheme; mediators seeking first time competence assessment or accreditation will be able to apply directly for scheme membership.”

The Law Society had already decided to adopt the Family Mediation Council's Code of Practice in full. The Law Society had its own Code of Practice, but said that having more than one code was “potentially confusing for practitioners”.

The decision is in response to Government initiatives in the area of mediation.

The Law Society said: “Government policy is to encourage mediation across civil and family disputes, and family mediation is the one area of legal aid which will attract additional funding. The government has recently prepared draft legislation to introduce a mandatory requirement (with some exceptions) to go to a Mediation Information and Assessment Meeting (MIAM) before any application is made to the courts.”

Last Updated on Wednesday, 05 December 2012 18:38