Barrister & Company Secretary Caroline BuchanChambers of Miss C Buchan
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January, 2012
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dispute resolution
2/20/2015 12:04:45 PM
I recently had the pleasure of attending a RICS conference on the topic of Dispute Resolution. Naturally given the host it had an emphasis on the construction industry which has delivered up a lot of case law revolving around breaches of contract and negligence. “Dispute Resolution” is a term that many often associate with full blown legal disputes. It can however relate to any disagreement, possibility of a disagreement, pre-action correspondence, legal dispute and any other stage in a “dispute”. Applying dispute resolution practices at any stage could potentially help to prevent a dispute going legal and the consequent breakdown of relations. Whatever a dispute looks like it is worth noting that the estimated value of cases mediated every year amounts to £9 billion. Mediation saves businesses an estimated £2.4 billion a year in lost management time, damaged relationships and legal fees. What was most fun and what I wanted to share were some often overlooked dispute resolution techniques and ideas that when remembered can really make a difference. This can be hard for us lawyers to keep in mind when our instinct is to get the best result for our client. The most obvious in the context of the life of a building project has to be having a more collaborative approach; a team spirit. Suggestions that arose out of the Kings Cross development, recognising the value of personal contact, included using teams from across the disciplines located at the same venue, holding joint risk and value workshops and discussions, holding joint decision meetings at all levels of decision making and involving the key subcontractors. Specific to the construction industry is the suggestion that there is regular contact with the designer because design delay will generally be problematic. All these could serve to engender mutual trust and co-operation whereas hiding behind email and legal teams will not. There are probably many other areas of commercial life when such an approach could help facilitate a better working relationship. Think about building teams like with the Kings Cross project and allow space for meetings and for relationships to grow. Use plain English. If there are lots of confusing acronyms try using a white board or flip chart to write them out. Where agreement on actions is reached document early and circulate as soon after the meeting as possible. The individual mindset is crucial. Do you assume everyone is intending to be as positive as possible or do you automatically assume everyone is out to be awkward? Do you view mediation or some other form of resolution with the attitude of wanting to get it over with or do you go into it looking for a genuine resolution? Are you going to look for areas of commonality or difference? Try an attitude of “this will go well”. Some more interesting considerations: as in life, “little things make a huge difference”. Do you convey respect and show that you value what the other party has to say? Do you consider any constraints that there be upon the actions of the other party? A number of problems can arise due to the lack of good manners so remember to be civil and courteous. If you need time out to fume take it so you don’t vent and damage any progress made. Consider where people are seated. Apparently dark eyed people are less bothered by light in their eyes than blue, green or grey eyed people. I never knew that! Remember that you always have a choice. Your perception of yourself is how difficult it is for you to change. Temper confidence with reality because the impact apparent confidence can make can actually be quite damaging. Consider the impact of showing vulnerability and letting the other party know you are human and open-handed. Are you present when you are in a meeting or someone is talking to you? It is so easy to let the mind wander and plan what you want to say next. Unless you are really listening others will be aware that you are not wholly present which will erode any confidence in what you say and the process as a whole. Smile, nod and affirm what has been said. This builds a positive environment. Really think about what you’re saying and give the other person/people time to take it in. Think about your attitude and tone of voice. Remember to take a breath. Remember to say “thank you” when the other person has finished speaking. The speakers were: Jonathan Cope, Ian Fry, Fred Garner, Peter Aeberli, Jacqui Joyce, Elizabeth Rope and Philip Morrison. A particular mention should be given to Sheilina Somani who gave us so many fascinating thoughts to consider in what for many would have been the graveyard slot just before home time. Caroline Buchan Direct Public Access Barrister & Company Secretary
Intellectual Property as Business Asset
3/8/2013 7:16:05 PM

What is IP?

All businesses own Intellectual Property (often referred to as IP) and it should therefore be protected.

If you own the brand name as the limited company name and website domain, you already have a level of protection. It is unlikely that a competitor will select a brand without owning the limited company name or website domain. 

Fun facts about barristers
3/8/2013 6:51:31 PM

In court, barristers refer to each other as "my learned friend". When referring to an opponent who is a solicitor, the term used is "my friend" - irrespective of the actual relative ages and experiences of the two. Historically, this is a sign of mutual respect for the common heritage and position they occupy. It is also a reminder of the time when the Bar was small enough for all practitioners to know each other personally, which to some extent is still true; in an earlier generation, barristers would not shake hands or address each other formally. The rule against shaking hands is no longer generally observed, though the rule regarding formal address is still sometimes observed.

Relevant commercial case law
3/8/2013 6:35:34 PM

There is so much more to the law for a business than having contracts drafted and letters written.  Behind every bit of barrister’s or judicial reasoning lies a whole wealth of legislation and/or case law.  Where there is no precedent in law a new one can be created by considered and clever argument. Every decision in the realms of employment law, contract law, intellectual property, data protection, shipping and corporate law to name just a few areas has the potential to have a very real impact on your business.

VTB Capital Plc v Nutritek International Corp & Ors [2012] EWCA Civ 808 - 20th June 2012


The main issue centred on the consequences of a judicial determination that the corporate veil should be pierced. The appellant, a bank incorporated in England, entered into a Facility Agreement and an Interest Rate Swap Agreement with a Russian company (RAP) to loan funds for the acquisition by the latter of dairy plants and associated companies from the first respondent, Nutritek. RAP defaulted on the loan, with the result that the bank recovered less than eighteen per cent by way of securities. The appellant alleged that it was induced to enter into the agreements by fraudulent misrepresentations made by Nutritek, for which the other defendants as controllers of the company were jointly liable on the grounds that first, if a company is used by its controller as a mere façade to conceal his true identity, the controller will be regarded as a party to the contract; and secondly, even though the controller and the company will in practice be regarded as one and the same, the controller will not simply be substituted for the company as a contracting party but will be jointly and severally liable under the contract with the company.  

Appeal dismissed. The court could not identify a principled basis upon which the law could be incrementally developed so as to support the proposition that as a legal consequence of piercing the corporate veil the court was entitled to find a company's controllers as parties to a contract between the company and a third party and vice versa.  

Held, inter alia; The principle of piercing the corporate veil is limited. Although a company and its controller may be so closely identified to justify granting judicial remedy against both, that did not warrant a departure from the basic principle of separate corporate personality by imposing contractual liability. Such an extension would be contrary to the common law and would not be a modest development of existing principle. It would, in substance, amount to the adoption by the courts of a jurisdiction to subject parties to contractual obligations under a contract to which neither they, nor the only undisputed parties to the contract, had ever agreed or intended that they should be subject. Gramsci and Alliance overruled; i) There was no analogy with the anomalous law relating to undisclosed principals on the assumed facts. The issue had to be solved by reference to general principle; ii) The basic principle that contracts are the result of a consensual arrangement between intending parties did not allow, except in exceptional circumstances, that a stranger to a contract should be held to be a party to it; iii) Necessity to provide a claimant with an effective remedy was not a condition on veil piercing: where the veil is lifted any order made in consequence is an exercise of a court's discretionary jurisdiction; iv) The extension of the law in Gramsci and Alliance imposing contractual liability on a stranger to a contract, whether company or controller, on the basis that they themselves were parties to it upon piercing the veil was incorrect. The authorities did not support the proposition, which itself failed by its own inherent unreality and would require the court to decide a case on the basis of pure fiction. N.B: The Supreme Court granted permission to appeal on 26th July 2012.


Pihl UK Ltd v Ramboll UK Ltd [2012] CSOH 139 - 29th August 2012


The pursuer, Pihl UK Ltd, sought to enforce an adjudication award against the defender, Ramboll UK Ltd, for sums accrued in the course of a construction contract. Enforcement was resisted on the basis of invalidity upon two grounds said to amount to a breach of natural justice; first, the adjudicator failed to explain the legal source of the obligation to repay the sum and; secondly, the adjudicator failed to explain the basis upon which the sum was calculated, as any sum due could only be quantified by reference to the ultimate overall costs of the contract which was not as yet ascertainable. 

The purser's application was granted. The attack on the validity of the adjudication award was without merit.

Held, inter alia; i) An adjudicator's award is not expected to demonstrate the same quality of reasoning as that of a judge. If challenged it should not be subjected to an overly analytical or critical scrutiny. It was important to adhere to Diamond v PJW Enterprises Ltd 2004 SC 430  and other cases which warn against a strict approach to the reasons given for an adjudicator's decision. The purpose of adjudication, which is to provide a swift and binding, albeit provisional resolution to a dispute in the course of a construction contract would be defeated if the losing party could refuse compliance on the basis that the adjudicator's decision is wrong in fact or law; ii) In this case, there was no real doubt or uncertainty as to the adjudicator's reasoning, nor as to the basis upon which he calculated the amount of the overpayment. At its most general, a complaint of a breach of the rules of natural justice involves an allegation of obvious unfairness in the decision-making process, which was not present on the facts. 

Midlothian Innovation and Technology Trust (MITT) v Robert William Ferguson [2012] CSOH 116 - 2nd July 2012


 The defender (Mr Ferguson) sought interim interdict against the pursuer (MITT) to prevent progression of an arbitration between the parties. The appeal concerned an application challenging the arbiter's conclusion that he had jurisdiction to i) determine the dispute and ii) award damages. 

The pursuer entered into a contract with the defender to grant a lease and to confer an option to purchase the property (a business park). A Minute of Lease and Minute of Agreement were both signed. The former governed the tenancy, providing for; the exercise of an option to purchase the property; imposed a responsibility on the defender, as landlord at the relevant time, for costs, repairs and renewals to ensure compliance with statutory regulations and the obtaining of statutory consents and; any dispute arising out of the lease to be referred to arbitration. The Minute of Agreement provided a mechanism for implementing the option but contained no reference to arbitration. The pursuer sought to negotiate a reduced price of the option because of alleged breaches by the defender of statutory compliance. The defender submitted that the arbiter had no jurisdiction to rule on a claim that arose under the Minute of Agreement as it contained no arbitration clause. 

Held; i) the arbiter had jurisdiction to decide whether a claim pled under the lease is a relevant claim. No view was expressed as to whether the clause relied on in the lease was an executorial clause and could only be relied on during the currency of the lease. In deciding the matter it was necessary that the arbiter have regard to the terms of the lease, including the clause of the lease which set out the rights of the parties on the exercise of the option, the close relationship between the landlord's obligations, whether it was sufficient that the pursuer had intimated certain claims during the currency of the lease and whether those claims were reflected in the attempts to re-negotiate the price before exercising and implementing its option to purchase; ii) On the submission that the arbiter had no jurisdiction to award damages, the test was whether the parties had conferred on an arbiter such jurisdiction depending on the terms of the contract in each case. In this case, prima facie, the arbiter had not exceeded his powers as the parties had expressly consented in an application to the chairman of Royal Institute of Chartered Surveyors (RICS) and secondly, the parties failed to raise any objection and had impliedly consented to confer on him the power to award damages. The second basis was not a question of competency of raising a challenge to jurisdiction of an arbiter but an assertion of bar resulting from acquiescence. Even if the case prima facie was not set out, the judge was satisfied that the balance of convenience did not favour the grant of interim interdict and did not warrant halting arbitration proceedings pending challenge. Lastly, it was not fatal to an application for interim interdict to fail to give notice to an arbiter of an application to interdict proceedings before him.



JW Spear & Sons Ltd & Ors v Zynga Inc [2012] EWHC 3345 (Ch) - 28/11/12


In trade mark infringement proceedings relating to the SCRABBLE game, D's application for summary judgment on its counterclaim for invalidity of one of the registered marks was granted. The 'tile mark' was not a 'sign' under art 2 of Directive 2008/95/EC. It covered an infinite number of permutations of different sizes, positions and combinations of letter and number on a tile and did not specify the size of colour or the tile. The graphic representation was not clear, precise, intelligible or objective. It did not enable the competent authorities or competitors to determine the scope of protection. The mark fell at the first hurdle and there was no prospect of successfully arguing to the contrary.

Court: High Court (Chancery Division) (England and Wales)

How to avoid wrongful trading
11/4/2012 12:35:55 PM

Dos and Don'ts for Directors of companies in financial difficulties to avoid the risk of liability for wrongful trading under section 214 of the Insolvency Act 1986


·                     Obtain professional advice and insist on any such advice being documented.

·                     Hold regular board meetings: All directors should be present so the whole board is aware of the company's financial status.

·                     Circulate the board minutes immediately after meetings: as these are evidence of the steps taken by the directors reduce the potential loss for the company's creditors, which will assist in minimising liability for wrongful trading.

·                     Keep your own written record of all discussions and meetings: This is especially important if a director disagrees with a decision that has been made and wants to rely on his/her objection as evidence later on.

·                     Draw up a list of all possible sources of funding for the company: Document the board's attitude to pursuing alternative sources of funding. This will help to identifying the time at which the company no longer had any reasonable prospect of avoiding insolvent liquidation, to assist in avoiding liability for wrongful trading.

·                     Draw up a timetable by when financial markers such as new funding levels for the company must be met: This strict timetable should identify when the company failed to meet a marker which will show there is no reasonable prospect of the company avoiding insolvent liquidation.


·                     Let the company incur any new substantial liabilities until additional funding is secured: except if the board considers such liabilities to be necessary and in the best interests of the company.

·                     Ignore events like creditors putting pressure on the company, the company filing financial statements or accounts late or judgments being entered against the company as these are clear evidence of problems or insolvency, which a reasonable director should have known about.

·                     Wait for a winding-up petition to alert you to financial problems: Directors must ensure that they have up-to-date financial information at all times and should closely monitor compliance with any financial covenants contained in arrangements with lenders.

·                     Delay raising a problem with the rest of the board: As soon as a director becomes aware that there is no reasonable prospect of the company avoiding insolvent liquidation, or believes that this will be the case, he/she must immediately inform the remainder of the board to enable it to take immediate legal and financial advice.

·                     Just resign to avoid the problem: Directors must take every step to minimise potential loss to creditors. If they conclude that the company cannot continue to trade, they must implement one of the insolvency procedures, such as liquidation or administration. By resigning a director cannot avoid being held responsible if he/she was in office at the material times or involved in poor decision-making.

·                     Forget to check the terms of your directors' and officers' insurance policy: Make sure you understand the extent of the cover and, if in doubt, obtain professional advice.

Appropriate Dispute Resolution
3/3/2012 12:19:20 PM
I gave a talk last to some students last week on dispute resolution considering a career in Law. We discussed the options of becoming a solicitor or barrister and considered the possibility that an interest in dispute resolution married to another industry could make you a very good arbiter. It is possible to have what is known as a "portfolio career" that encompasses many different interests and skills throughout your life time.
Becoming a solicitor or barrister requires commitment not least sizeable financial one but if you are good you will earn that back very quickly. Currently the Bar Vocational Course costs between £10-15,000. 
Alternative dispute resolution dubbed "appropriate dispute resolution" by the ADR Hub can keep cases out of the courts and saves time, money and stress. 
Arbitration actually predates legal systems and courts. In Roman times litigation was really just private arbitration with the assistance of a magistrate known as a Praetor. In the Middle Ages English merchants used arbitration to settle disputes long before the Kings Courts began to enforce contractual obligations.   
Despite the Justice Secretary Ken Clark's recent comments that mediation should be used instead of resorting to the court process, mediation is already very widely used as a way to get quick and cost-efficient resolution of disputes to enable where possible a continuation of existing working relationships.
As a solicitor or barrister there is a professional duty to recommend mediation to your client unless there is a very good reason why it is not going to be appropriate.
A mediator is an independent and neutral facilitator who will help resolve a variety of contract and negligence disputes, family law matters and in employment situations disciplinary or grievance issues by examining the symptoms of and motivations for conflict. The interesting thing is getting the parties to agree to the process to begin with!
Mediation can be a good way of dealing with bullying, discrimination or harassment situations depending upon the nature of any allegations. Discrimination or bullying actions can range from unintentional misunderstandings and lack of awareness through to deliberate and malicious acts. ACAS dealt with nearly 18,000 employment disputes in 2010/11 through their pre-claim conciliation service which aims to deal with problems before they escalate to tribunal. 
Mediation is for the most part, and should remain I believe, a voluntary process where the mediator helps two (or more) people in dispute to find a solution to the issue that they can both live with; a win-win scenario. The mediator does not take sides or tell the parties what to do but shuttles back and forth between the parties helping each work towards a resolution. It is of course a form of negotiation. 
Arbitration is often used as a quick and relatively inexpensive way to settle contract disputes and final and binding if the parties agree. Parties signing a contract often agree to the use of arbitration. Contracts usually include a clause that the parties agree to comply with the arbiter’s decision, typically the phrase ‘binding arbitration.’ By choosing arbitration to settle disputes, the parties agree not to pursue their complaints in a court of law.
The actual process of arbitration and adjudication is much the same. Mediation through an arbitration hearing is similar to a court hearing. Each party brings evidence and witnesses before the agreed-upon arbiter and makes his case. The arbiter weighs the evidence and draws a conclusion, either deciding for one of the parties or proposing a unique solution.
The rise of international arbitration has seen a more enlightened approach in modern times. It was seen that international arbitrations had a major commercial advantage as a uniform process largely independent of the local legal systems. The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the 'New York Convention') has been adopted by many countries and is free from the intervention of any State. Interestingly though some states such as Argentina have recently been ignoring arbitration decisions so the party which wins the award is then forced to seek enforcement of the decision in that state.

Adjudication is currently used almost exclusively in the construction and engineering industry. The adjudicator is usually a construction or engineering expert appointed to give an opinion on the issue (sometimes technical) to allow work to carry on. It's a more informal process than going to court. It is not intended to be a complete legal statement, but to be a working interpretation of the contractual situation.  Generally arbitrators and courts will tend to support the adjudicator's decision unless there has been an obvious conflict with the applicable law.
Adjudication is preferred because it is seen as being fast and dirty, gives the Contractor certainty about his entitlement and enables some control to be kept over the solution to the dispute. 
The way forward is shown by the success of adjudication under the Housing Grants Construction and Regeneration Act 1996. The process could easily be considered as arbitration under the Arbitration Act 1996. So for instance, the rules of natural justice apply.

Expert determination is a procedure in which a dispute or a difference between the parties is submitted, by agreement of the parties, to one (or more) experts who make a determination on the matter referred to it or them. The determination is binding, unless the parties agreed otherwise and may have effect as a recommendation to the parties.

There is only a very limited basis to challenge the determination. It is therefore important that the parties select an expert with both relevant expertise and experience in addition to knowledge of the Determination process.
Sometimes the expert’s decision is not binding, but advisory. This is known as Expert Evaluation. Although not binding the evaluation often forms the basis of a settlement.  In contrast to mediation, a party cannot unilaterally withdraw from expert determination. It is ideally suited to multi-party disputes.
Expert Determination is ideally suited to disputes and matters of valuation and/or which are primarily dependent on technical issues e.g. does the computer match the specification; is the malfunction due to a design or a manufacturing fault; valuations of shares; rent reviews and contract performance matters. It can also easily be used in many other areas such as insurance wording disputes, sale of goods disputes, fitness for purpose and boundary disputes.
Although Expert Determination is an Alternative Dispute Resolution process, it can also be used when there is no dispute, but a difference which needs to be resolved for example the valuation of a private business.
In conclusion there are many and varied ways to avoid going to court and achieving a settlement and having a legal qualification is not everything.
Breast Cancer Awareness month
1/25/2012 4:09:26 PM

Breast Cancer Awareness month
Autumn with its heavier skies and the heavy sweet fruit on the trees is my favourite time to be in Sussex as the evenings draw in and you begin to get that leafy, illegal bonfire aroma as you walk outside kicking the leaves and almost break your back on the abundance of acorns and conkers on the pathways. Keats would have said that better than I. With the frightening slide down to Christmas which comes all too quickly every year there are plenty of opportunities for cosy get-togethers in spooky costumes if the mood or the children take you, apple bobbing, standing around bonfires with a juicy hotdog watching the Pope get his comeuppance if you live in Lewes, or firework spectacles to rival China's, drink gallons of mulled wine, eat turkey or just curl up in front of the television.
It's a slightly melancholy autumn because it is drawing closer to the first anniversary of the death of my Father. I keep thinking of him ambling back from the Village with his newspaper and stories of who he'd talked to or in the garden and find amazing he was here just last year doing those things and planning for retirement and now here I am completing his final tax return for the 31st October deadline.
On the positive side my sister has taken to raising money for Diabetes UK and the Stroke Association and we have tapped into a really friendly, bubbly group for free walks aptly called Healthy Walks organised and chaperoned by the Mid Sussex District Council; if you have a dog so much the better. It is great that the Government give money to incentives like this to keep us all fit and happy. There are walks virtually every day. 
One thing my Father pointed out when we were defiantly resisting what was in front of us was that "Life isn't fair". It's a well worn phrase and true. Recently a girl from the year above me at school passed away after battling melanoma at St. Catherine's Hospice leaving a young family and now it appears that my best friend (the second friend in 18 months and both comparatively young) has breast cancer which with any luck will be operable. In her usual upbeat way she has asked me to write this short piece to raise awareness not simply as a reminder that women should be regularly checking for changes but also to flag up employment rights for those with cancer because of course cancer is classed as a disability under the Disability Discrimination Act 1995 and falls under the Equality Act 2010 if you are employed personally to provide services.
October seems to be a designated month for a couple of quite important causes and Breast Cancer Awareness month seems to be one of the most important ones. My friend told me that 1 woman every 10 minutes is told she has breast cancer. That's quite a statistic and almost as surprising as three babies being born every second. In essence, and of course everyone's circumstances will be unique and need to be advised upon individually, an employee with cancer may have a claim for disability-related discrimination if not treated in the same way as an employee without a disability and for direct discrimination if the employer's decisions are "tainted" by the disability. A claim might be made if an employer discriminates indirectly unless there is a fair and balanced reason, directly discriminates and harasses because the employee is wrongly thought to be disabled or is associated with a disabled person or victimises anyone. 
An employer must consider and where at all possible make "reasonable adjustments" which might include changing working hours, practices, some physical aspect of the workplace or providing extra help or equipment. Inevitably time off work for an operation, any radiotherapy and chemotherapy and recovery time follows and the employer is bound to try to make reasonable adjustments where to do so would not destroy the essence of the job role or be prohibitively expensive and disproportionate in terms of the business. Whether that adjustment would have made a difference will go to any remedy claimed assessed on a case by case basis.
Agency Workers Regulations which came into force on 1st October give agency workers the same right to equal treatment and the same basic rights as if they were recruited directly as full-time employees after only 12 weeks. If the worker was in work before 1st October the Regulations will only apply from that date and the agency worker is only entitled to basic rights means no sick pay. Presumably the expectation that an employer make "reasonable adjustment" will be valid.
I also wanted to flag up that on 20th October it was Mediation Day although it went by with little fanfare except in the Alternative Dispute Resolution field or Appropriate Dispute Resolution field as some prefer to call it. Where employment issues become difficult mediation in particular is a proven way to help parties resolve disputes with as little acrimony as possible and generally courts want to know that mediation has been attempted before taking up valuable and expensive court time. We live in the real world and recognise some disputes are too difficult and that it may seem foolhardy to even raise your head above the parapet. This evening I listened to a lucid webinar as part of a week long series on dispute resolution, its theme: "Happiness, Conflict and Social Networking" and imagine… creative, resilient and forgiving people tend to be happier and happy people tend not to get drawn into downward spirals of conflict and it follows are less likely to be litigious. Equally it is said that positive people can see off illness better too.      
Let's not dress it up. Life is tough and we have to pick our battles wisely and although what I have written stems from sadness I hope it has a positive twist and is a timely reminder to have regular medical checks where appropriate, complete your paper tax return if not doing it online, stand up for your rights but where you can save your emotional energy, time and costs settle your disputes and make the most of this delicious season.
Not so Transparent
1/25/2012 4:08:24 PM
Transparent about conflict?
How many times do you hear a reference to the concept of "transparency"? I would say that aside from the fact that I have been thinking about it so am more likely to notice the use of the word, I have probably heard it 6 or 7 times since breakfast on the Radio. It's one of those words that can cause me to role my eyes along with "appropriate" or "best practice".
There has been a lot of emphasis on transparency for public and government bodies, politicians, charities, NGOs and public limited companies accountable to shareholders and the public. This might include avoiding abuse and unnecessary costs through a tendering process, choosing candidates on a fair basis and only rewarding good leadership and results. It is a trend that has followed hot on the heels of major corporate scandals and with current economic problems one that can potentially expose financial weakness.
The Government's transparency obligations advise that "there is a presumption in favour of transparency" when considering what documents should be published. This includes keeping all documents and records and being clear what might need to be disclosed, ensuring suppliers are aware of the commitment to transparency and having appropriate terms in their contracts, making sure only the right information gets published bearing in mind data protection requirements and providing information on a website to explain the procurement or employment process identifying how transparency commitments can be achieved.
Working with a handful of NGOs significantly supported by DFID I saw the need to be seen to do the right thing that can burden an NGO even when choosing the business location and very objects of aid. Whether a country is a tax haven or provides a preferential tax regime will be relevant to transparency and anti-corruption considerations.  Mauritius, for example, is really the only base for business in Sub Saharan Africa but is most tax efficient way.  
The introduction of the Bribery Act was another step towards greater accountability.    There have been prosecutions but I suspect most companies have sufficient systems in place to be compliant.
The act of doing the right thing can obscure reality. In court a judge will retire before bias can be inferred regardless of how impartial he is.
Western corporates satisfy good governance supported by legislation by revealing stats on green policies, employees and directors' remuneration. The AGM and Annual Report will be a company's opportunity to be open with shareholders and stakeholders. Not to say that figures can't be fudged by focusing on salary rather than perks.
Frequently out of court settlements avoid adverse publicity as well as costs. The recent settlement by Pheizer in the USwas part of the US government’s emphasis on combating health care fraud initiative. “Whistleblowers play an important role in protecting taxpayer funds from fraud and abuse,” said Tony West, Assistant Attorney General of the Justice Department’s Civil Division.  “Settlements like this maintain the integrity of FDA’s drug approval process and support important federal and state health care programs.”
Parties go to court on the basis of assumptions and a sense of entitlement. I lost count of the number of defendants in road traffic arbitrations who had "assumed" the other party had seen them or interpreted their actions not in the way they were intended.  
When positions are misunderstood bad feeling and conflict arise from simple misunderstandings and poor communication.
One party may assume his needs and expectations are obvious when really they are far from being so. Unmet expectations and needs cause disagreements and extreme reactions to apparently small triggers.

The trick is in how we choose to react and how we choose to respond to others. It can be a trap to avoid or ignore the feelings or behaviours of others and unhelpful to respond in kind. Temporary solutions used to manage the situation, perhaps stuffing down natural feelings and inclinations to avoid the conflict, enable an increasingly severe and recurring conflict situation.  
More than simply improving communcation and understanding, parties should try to really connect with the other person and acknowledge how they feel not assuming that what is important to one is going to be important to the other. I have heard it suggested that those we call bad are simply those that can't empathise. That seems too simplistic but it certainly helps to put oneself in another's shoes. Asking questions can help identify the cause of a problem. I find these simple approaches useful during mediations and arbitrations.  

We don't always understand ourselves well enough to be transparent and understand our motives and how can we get along with others before we know ourselves? How many live roles and identities that make them unhappy? How glibbly we say life is too short but stay stuck in the same situations? A good friend quoted some Shakespeare to me recently:
"This above all: to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man.
Farewell, my blessing season this in thee!"
Your Flexible Friend
1/25/2012 4:07:03 PM
My best friend would work evenings and weekends and referred to himself as a "flexible friend"…. A throw back to the marketing of a certain credit card I believe. In a competitive legal career that I enjoy I have long accepted that I have to be flexible and imaginative in my approach. Anyone who has worked for themselves knows that flexibility and focus and taking care of clients and customers is crucial.
The fairly recent Legal Services Act got a pretty poor reception from many lawyers because it allows for the ownership of legal businesses by non-lawyers so big brands like the Co-operative Group and various insurance companies and banks can offer legal services. This has led to the hue and cry that the quality of legal services will inevitably fall in a world where "Tesco Law" can offer blue and white stripped value legal packages to its customers. I am not aware that Tesco as yet offers legal services but I would happily put my name forward! The idea is really no different in concept to that of insurers using a panel of solicitors' firms to outsource work to at a competitive price. It is part of a general trend of bringing services in-house or of combining services under one umbrella. The question will be whether it is a quality service and therefore whether it achieves value for money for the consumer.   Judging from's own home page survey as to "who should earn more", lawyers rate extremely low in most peoples' minds as deserving of a pay increase so maybe the public will embrace the new way of working and applaud the competitive legal fees. 
I have practiced as a Barrister for number of years and recall that there was a time when Barristers unlike Solicitors were traditionally not allowed to advertise their services but had to find work via the Solicitor who was the middleman, or chase debts some of which were incurred by the Solicitor sitting on the money in their account which was accruing interest. Thankfully now that has changed. Barristers like myself, can now offer their services directly to the public under the Bar Council's direct public access scheme or work in-house and can pursue their debts in the normal way. This is all great but what it signifies is that the Bar has long begun to recognise that it has to run itself in an even more approachable and businesslike manner while it retains something of its traditional appearance that seems to give clients a degree of reassurance that we treat all matters with sufficient gravitas. 
It is time for many of us to jettison the old ways of working, relating and responding and move into the 21st Century. The turmoil of the economic situation has since 2008 produced a golden opportunity to specialise, improve, innovate and offer alternative services. Flexibility and focus are the keys. It's all a matter of adjusting how you think particularly where your old ways of thinking or acting are working against you or your business. If clients want to use cloud computing or have conferences on Skype so be it.  
Traditionally it was and since the recession maybe still is quite strongly the case that you put up and shut up in the work place if you feel there is a problem because you do not want to lose your job. More and more I am hearing from people that they are in untenable situations within their workplaces and not enjoying their jobs anymore. The pressure put on individuals by organisations desperate to survive the credit crunch is often too much to bear not just economically but personally in terms of low morale and an absence of incentives but worse must be when individual managers in organisations bring inappropriate pressure to bear whether by setting unrealistic targets, creating an atmosphere of stress or failing to support those who look to them for leadership and guidance.   I had the interesting task of advising one friend whether or not to say something more to his manager on the basis that he should be supported in his job role and not undermined. I've always believed that like Dr Seuss, we should all be able to "be who we are and say what we feel, because those who mind don't matter and those who matter don't mind" and I felt genuinely torn between knowing it should be the correct thing to do to speak up again but also worrying in case he lost his job as a result. My initial advice was to temper his words with honey not vinegar but my better advice was to perhaps consider using his immeasurable skills for himself and to put all that energy and enthusiasm into his own projects before he became demoralised any further by an unimaginative and ungracious employer. 
The Co-operative Legal Services' financials show that revenues jumped by 22% in 2011 boding well for its entrance into the legal market place with its Alternative Business Structure if it is granted a licence. Maybe there's something to be said for being courageous and novel. 
The customer may not always be right but you can help them by giving practical advice that helps to find a solution to their problem. My feeling is that I am bound both professionally and by my own moral compass to give a good service to a client whatever the fee but I will not shy away from pointing out that some think little of paying charge out rates for plumbers and electricians before they even start work but will haggle with lawyers many of whom work in sectors that have been hard hit by the recession and changes to legal practice and have not seen an increase in their fees for some time.       
All Aboard!
1/25/2012 4:05:51 PM
All Aboard!
I've been off line recently having been sailing along the south coast with friends over the past couple of weekends and surprisingly given the forecasts we have had some really good weather and my factor 50 has really come in handy. The first weekend we sailed from Gosport to Bembridge on the Isle of Wight with the National Air Traffic Controllers on their annual sailing regatta where we were on the committee boat and after a good sail where the NATS teams successfully followed a cryptic Solent treasure hunt we sat back and enjoyed a few gin and tonics with a deputy harbour master and made party hats for their celebratory dinner in Gun Wharf. My cockpit companion ended the night by making my friend a very happy woman by doing a lap of honour around the deck all be it without his party hat.
Being currently just about competent crew and with a view to taking a day skipper course at the end of November we've decided to go out sailing as often as we can so were out again last weekend when we went from Gosport up to Beaulieu and moored up for the night with a very tasty homemade lasagna and ginger cake and lots of you've guessed it gin and tonics. On the Sunday we tacked our way back towards Gosport having failed to quite beat the tide up the Southampton Water to see the boat show but still had a good day and lots of food. This isn't the sport to do if you're looking to slim down.       
What is quite interesting is that the friends we sail with are mostly men. They generally come armed with a practical engineer's way of looking at things and often an air traffic controller's superb knowledge of the weather systems and seem to quite naturally and quite literally pick up the ropes. Imagine my joy when then I met up with a new client yesterday and his legal assistant began to tell me all about how she had loved sailing with her grandfather who had sailed with Chay Blyth and that she had also like me studied history. That gave me some encouragement as I have been secretly thinking that surely it can't be all that complicated and even those of us with a humanities training must be able to get it. Even more interesting was that it turns out that my new client owns the Victorian Horse Sands Fort in the Solent that we always sail past on our way out of Haslar Marina and into the Solent which looks pretty intimidating from the perspective of a little yacht being thrown around in the waves below it's impressive and dangerous concrete and granite exterior. It's a developer's dream when you consider one of its best selling points is its fabulous 360 degree sea views.  
I'm happy to stand corrected but my current perception is that there seem to be more men than women sailing and apart from a few excellent husband and wife teams you can absolutely guarantee that unlike any other event in life when you want a much needed hot shower in the Marina facilities after a day covered in sea salty water that being a woman you won't have to wait in a long queue. I always ask the guys why their wives haven't come with them but usually get answers like "she even gets sea sick in the bath". I think that's a bit of a shame but then everyone needs their space and time out and sailing is very relaxing as well as exciting at times.
It made me think that sailing is analogous to company board rooms. It's been my absolute pleasure to work with some very strong and capable female directors but they are still even in 2011 few and far between. Quite often you see the same names on different boards as Non-Executive Directors, what the French call "Golden Skirts". 
Ten years ago women on boards made up about 5% and today only around 12.5% of a FTSE 100 board makeup. It's becoming a more pertinent discussion since Lord Davies' Report earlier this year which suggested that companies should publish the number of women sitting on their boards and working in their organisations, recommending that businesses in FTSE 350 companies should set their own targets for increasing female representation on their boards by 2015 and that the FTSE100 should challenge themselves to increase the proportion of female directors on their boards to 25% by 2015.
 It is a major driver now of corporate governance reforms to get more minorities on boards to robustly question the executive directors and represent shareholder and employee interests. There is growing evidence that companies with more women on their boards outperform their male-dominated rivalsThere are still underlying issues like why do women still earn less than men and why is it that the higher up the ladder you go the less women you'll meet? It can't still be the case that women drop out of ambition once they have a family in a world where we will still have to all work to maintain any sort of life for many years to come. Sadly I have come across women in legal and company secretarial roles who just will not promote themselves or other women and accept the status quo and even participate in jokes about token women on boards with the male directors. Why is that?      
The Road Not Taken
1/25/2012 3:11:07 PM


"The Road Not Taken"
Our Promise to Young People?
The shock of last week's riots across London and other major cities was 24 hour news and a source of debate and story swapping around many a dinner table. From liberal excusniks to those joining in the facebook campaign to bring out the army, people of all classes, races and ages have genuinely been completely floored by the apparent mindlessness of some young people starting fires, looting and putting lives in danger.
The ensuing debate has partly been occasioned by an inability to put a finger on the problem in contrast say with previous anti-capitalist riots, poll tax riots and the racial riots of the 1980's. On the face of it last week's anarchy was prompted by anger and resentment, a lust for shiny objects and a sense of entitlement. As one girl on benefits said: "why shouldn't I…it's my taxes!" … interesting argument …. I would suggest that young people be guided to consider which road they want to take as per the Robert Frost poem of the title.
A friend working at a London College teaches 14-16's and comments on how malleable their minds are; adults who aren't quite fully formed. He has dealt with thuggery and theft of equipment, students talking back at him, not bothering to produce work or show up at all thereby losing their places, teenage pregnancies where there was promising talent and angry parents who won't sanction discipline. He was however confident that none of his own students would have terrorized Croydon in the way we witnessed on the television because he maintains they are the exception and the ones he can go that extra mile with who do really well. That says something about their personal choices.
All the aftermath discussions took me back to an English class at school where we had to discuss if John Major's laudable aim of a classless society was a runner. 
I think the riots and subsequent reactions illustrate that we are still deeply segregated into our classes in our mindset and our educations regardless of the actual potential to pull one up. Understandably horrified, I suspect middleclass liberal ideology has been tested to its limits and that actually they themselves might be a component of the problem. The more they climb the more they squeeze out the poor. Competition for school places, artificially increasing property prices and selling off playing fields and amenities to build overpriced flats and offices have added to the problem. We all look out for our own.
We have little manufacturing to speak of and an insane emphasis is put on degrees in whatever subject at an off putting cost instead of applauding and encouraging practical people to make things and ensure that the UK has an industry. The German example of making young people choose an intellectual or vocational route is a good one and their third way of sending the unmotivated out to do community work makes good sense. We also have an educational deficit in that many school leavers don't have all the basic reading and writing skills which is an issue for every government and local authority and until that is resolved our young people will struggle to get hired.   
The middle classes are increasingly feeling disenfranchised. After University fees and paying off that debt is the battle to get on the housing ladder. As for pensions or any semblance of a retirement forget it. The UK should follow the lead of countries like Italy and Australia and abolish inheritance tax to enable hard working parents to help their offspring because we are setting ourselves up with an impossible future burden on society.       
East Sussex is affluent yet according to an article in the Argus on 16th February 2010 one fifth of children live in poverty and the figures are increasing. Complainants accuse the previous government for diverting funding away from the South East to the North. The cost of living in Brighton is commensurate with London. There were no riots in this region. That I hope says something positive but much still needs to be done.  
The latest edition of the local "Business Edge" magazine had an article where Chris Grayling reflects on the 6000 young jobseekers in Sussex and a £200 Million Government package to support young people and get them into work through a Work Experience initiative. By enabling 18 to 24 year olds to do a two month placement without losing their Jobseeker's Allowance they can get real employment experience and enhance their CVs; a practical initiative that tackles joblessness and the lack of motivation issue. 
Initiatives like this require businesses to step forward and offer placements. I have met some business owners locally with imaginative and successful businesses so the opportunity is there along with organisations like the Prince's Trust. Let's curb our appetite for shows that propel people to stardom and give recognition to those who make a go of their lives and are hard working and satisfied with their own sense of achievement. 
You choose your path. Human beings are progressive creatures and whether you make or are given opportunities hopefully one day you can say that those choices you made made all the difference.
Not ditching the wig yet
1/25/2012 3:11:06 PM


Not ditching the wig yet!
I have been to two excellent local networking events recently, one with Warren Cass last week at the Jury's Inn, Brighton which was great fun as the speaker was a former Apprentice contender and the other yesterday with Sussex Enterprise at Park House near Midhurst, as beautiful a location as any you'll find in Sussex. Certainly the warm pastries would have got Mary Berry's seal of approval. What made me stop in my tracks was the cheery farewell from one attendee who wishes me luck in "ditching my wig"! 
I've never wanted to stop doing advocacy work for clients and this comment had the effect of making me realise, with great certainty, that in true Steve Jobs style I love my job. It also gave me a bit of a ‘heads-up’ about marketing services and how people perceive what I can do for my clients. 
It helps, of course, if potential clients understand what you do and how you can help them. My interactions with other networkers have taught me that they have a very specific idea of what a Barrister is and not much of an idea about what a dedicated Company Secretary can offer a business - or even if they require one. That being said, I am as ignorant of many areas of business myself and would like to know, for example, more about what a management consultant really does.      
I've learnt to deal with the myths and educate where there is a lack of knowledge and do it in a snappy way that shows where you can "add value" to their lives or business. This apparently should be possible with a succinct "elevator pitch" ideally delivered in the time it takes to travel 6-10 floors. 
A Limited Company doesn't need a Company Secretary but can benefit from using one to manage its statutory administrative obligations and the corporate governance regulations with which companies have to comply. 
Barristers, also sometimes referred to as Counsel, have been directly accessible to the public since 2004 under the Direct Public Access scheme regulated by the Bar Council and can advise on all aspects of a matter like a one stop shop as well as go to court (with or without the wig) to represent a client. Further Barristers are often not more expensive than solicitors because we have less in the way of overheads and will often charge a fixed fee.
Following on from my recent column about "Tesco Law", the Legal Services Act came into force on Thursday, which was all over the news. It stirred up the inevitable talk of supermarkets undercutting High Street solicitors. As already discussed it pays to be flexible with your business and in meeting clients' needs. According to the righthonourable Ken Clarke QC MP's recent letter to the Chair of the Bar regarding changes to legal aid, efficiency and value for money are paramount and to be considered along with the already high ethical standards and sense of public service associated with the Bar. Note to solicitors, I suspect this can be applied to you too. The message is clear that professions have to change and adapt to current circumstances - and why not? We're more than capable of working in a modern way and remaining professional.
Herewith a clarification. The Tories have had their spat this week about the cat. The judicial decision in question related to a Bolivian student applicant's right to family life under Article 8 of the much-maligned European Convention on Human Rights with an unmarried British partner; the cat was secondary. The point made at the party conference might better have been in Cameron's speech about marriage and gay partnerships. The decision was upheld by the judge who noted that the cat need no longer fear having to adapt to Bolivian mice.    
We don't all wear wigs to work, but I still have mine and don't mind wearing it. Let's talk about wigs and gowns. The gown dates back to mediaeval times and was a sign of learning, as were the bands around the neck. By 1600, after centuries of brightly- coloured gowns, black became the colour of choice and upon the death of Charles II it became a mourning gown. Legend has it that barristers were literally paid with a "back hander" when their instructing solicitors put money into the little pocket-type thing that hangs over the shoulder on the barrister's gown. The wig itself was a fashionable addition brought back to England by Charles II from the court of Louis XIV and their size became the inevitable source of competition between men; from whence we get theterm "bigwig"!   
Changes to court dress announced by the Lord Chief Justice took place in autumn 2008 and the wearing of wigs in the family courts has been completely abolished in an effort to make judges and barristers appear more approachable, including removing the necessity to be fully robed. This was an important and positive step to take in family hearings where children and young people are involved, so as not to seem intimidating. Robes and wigs are still frequently worn in the higher courts of England and Wales and the County Court unless the judge dispenses with wearing them, say on hot days, because the horse hair tie-wig can get a little scratchy.
The Bar recommended in a letter by its Chair that advocates should retain their existing formal robes (including wigs) in all cases, civil and criminal, with possible exceptions in the County Court for a good reason:
" There is strong identification of the Bar of England and Wales in the public's mind and its formal dress nationally and internationally."
In criminal cases, although not worn in magistrates’ courts, I think wigs and gowns add a certain measure of gravitas to the proceedings and respect for the court process as a whole. It also gives a measure of anonymity to Counsel so you focus instead on what is said and less on the individual speaking. It says what it is on the tin and Counsel can also escape more easily from the court house and any disgruntled relatives!
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