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When it comes to expert witness reports surrounding chartered surveying and construction disputes, the information at hand is not always accurate and consistent, making the expert witness’ analysis that much more complex.
Here we talk to Johnathon Gillies, a Chartered Building Surveyor and the Managing Director of Gillies Ltd, who discusses the challenges involved in producing such reports, details the differences in his work between commercial and residential property disputes, and briefs LM on the impact of civil procedure rules being introduced in the UK.
What does the expert witness role of a chartered surveyor involve on a day to day basis?
The role of the Chartered Surveyor is as indicated in the RICS Guidance Note ‘Surveyors Acting as Experts’. We are expected to provide an unbiased and objective opinion of the position. However, this is often unhelpful to the legal team and we try to provide advice to assist in supporting the case being presented. This does rely on us being briefed with the facts correctly presented.
The roles will be either as a Joint Expert, Court Appointed, or representing one side. The instructing solicitor will advise on the CPR S35 obligations.
We are often first approached by the solicitors representing the claimant or defendant. From the initial discussions, we often ascertain that there are questions that have already been raised which we need to answer. Once we have a firm instruction we often find it useful after we have reviewed the initial information to either have a conference or meeting with the client and solicitor to agree upon the exact questions that we are to answer or clarify the existing questions if they are too open. The reports may be disclosed so a clear understanding of privity of the report is needed.
The typical instruction will be provided by the legal team with specific points to be answered. Our role will be to inspect the property, take notes and records, view relevant documents, research the technical issues, give references and provide a report. We are very conscious that we are not lawyers, and must avoid presenting the evidence beyond our brief.
It is often a very hard role to be involved in and remove one’s self from taking sides on a personal level as the claimant or defendant tend to try and stress their own particular side of events that have occurred, which often appears as if they are trying to sway decisions. We have an overriding duty to the courts to give independent and impartial evidence based on the information and facts at hand, so removing any personal feelings and not taking sides is paramount for us.
What kind of inspection cases are you commonly appointed for and what principal issues do these present?
Obviously, as a Chartered Building Surveyor we deal primarily with construction related matters ranging from fire damaged property repairs, Housing Act disrepair, to poor workmanship in construction contracts in properties. Our principal instructions come through from solicitors or the courts, often relating to contractual matters between contractor and building owners. This tends to be in relation to what the scope of works were originally agreed upon and then the disagreement over payment or the cost of any extra works.
We tend to find that contracts are insufficient and the documentation appended (if it is at all) is generally unclear. The schedule of works are often not in any detail and if they do offer a list of work, it can generally be just a bullet point schedule.
One of our biggest issues when receiving a new instruction to report upon is receiving countless e-mails from both parties that generally have no relevance to the actual case and are usually a history of their arguments rather than the real issue. This often takes a lot of time to sort through what can be used, and can often be wasted time.
Do the difficulties differ when instructed on commercial property based cases as opposed to residential surveying cases?
Yes, commercial property matters tend to be more about the finer details compared to the overall issues as business’ appear to be more savvy when it comes to contracts or documenting the works. We also tend to find that commercial projects have specific professionals that have been advising during the works, which often helps with ascertaining the problems.
Commercial cases tend to be more about technicalities so often need a lot more research into what has gone wrong and the reasons for the dispute. Residential cases are more often over what the building owner thought the contractor was going to undertake.
Can you detail some of the challenges you find in business compliance with UK civil procedure rules (CPR)?
As we tend to deal with the detail of a building dispute keeping up to date with all the changes to the CPR can cause problems. We often find that keeping up to date with the almost yearly changes can create issues especially with the requirements for the courts.
The CPR S35 requirements focus our presentations on the facts and we find that the direction provided in the smaller cases is quite helpful, especially on restricted time matters such as Housing disrepair cases which can sometimes (rarely) be on funding from the public purse. However, there are often Cases where the presentation of interpretation of the facts needs to be developed to provide an alternative opinion to support the case presented for the client. We have to carefully balance the opinion with the duty to the court.
How does an expert witness’ role differ in boundary dispute cases?
Boundary disputes are rarely a clear cut matter and are often over very minor measurements of trespass. Disputes between two neighbours are often very passionate as it is their own property. This often presents major issues when inspecting sites to try and ascertain the level of trespass.
Unlike property related disputes, boundary dispute cases never give a definitive answer, as the only real information to hand is usually vague, and the available research is often limited to historical maps or the original conveyance documents. Old photos are often produced by the relevant parties which can put more doubt into a surveyors mind than make matters clearer.
It is often easier to have boundary disputes assessed by an Expert from each side, so that both may investigate separately and then present to the other the information at hand. This allows compliance with CPR by the two experts corresponding directly, allowing the agreement or disagreement of the actual line of junction to be depicted far quicker; unfortunately, this isn’t always the case. There have been recent proposals to allow boundary disputes to be dealt with by similar legislation to that of the Party Wall etc. Act 1996. We think this would be a successful alternative to litigation, and would be designed to allow practical solutions between surveyors. This may reduce lawyers’ involvement, but I think that the minor disputes are of limited commercial value, and would focus on more remunerative cases which would end in Court anyway.
Overall, how would you say the role of an expert witness chartered surveyor has evolved over the past 20 years?
Since I have been undertaking expert witness instructions, the various procedures have certainly got a lot tighter. Before the CPR 15 years ago, it was common for experts to deliver widely differing opinions in relation to the case at hand. Since the introduction of the rules along with the Guidance Notes and Practice Statements produced by the RICS, the role of the Chartered Surveyor has thus evolved particularly with giving evidence which is to be impartial and unbiased, and especially uninfluenced by the instructing party paying their fees.
The introduction of the CPR has benefited the public by the Experts being able to assess disputes as to whether they are tangible and worth pursuing.
One of the biggest benefits that I have seen is the encouragement for the two Expert Witness surveyors to meet throughout the investigation process, review each other’s reports, and then submit a joint statement on agreement. Like being called to the witness box, this is not for the feint hearted. A meeting between two Experts, especially with no chair to the meetings, can often become very heated if there is a disagreement between the two. The joint statement can or will often raise more questions from the legal team on the joint agreements and disagreements.
Is there any UK legislative change you believe could facilitate the work of chartered surveyors?
The Faculty of Party Wall Surveyors are trialling a boundary disputes document that appears to be successful and will try to help to resolve matters quicker.
Is there anything else you would like to add?
We believe that close cooperation between the whole clients’ legal team is essential for a comprehensive case to be presented. We are all specialist in our field and although one member must manage the case, it is important that the right specialist have input to achieve a strong case. I see the benefits to the client of the coordinated approach being that authoritative opinions are obtained.
The maritime industry, including international shipping and trade, is regulated by a complex network of international treaties, regulations and rules, not to mention different national laws and procedure. As well as having to keep abreast of maritime treaties and laws, maritime lawyers often need to have a good grasp of other areas such as employment, trade and commercial law, private international law and the international law of the sea.
To this end Lawyer Monthly here speaks with Lewis Baglietto QC, Partner of Hassans, a full-service law firm in Gibraltar with offices in Spain.
You are mostly experienced in litigation and shipping; in cases where these come hand-in-hand, what are the most common types of disputes?
The obvious and most common overlap we experience in Gibraltar is the arrest of ships and Admiralty claims in rem, often by creditors, suppliers of goods or unpaid crew. Gibraltar’s Admiralty Jurisdiction is very similar to that of England and Wales and is straightforward to understand. This and our geographical location make Gibraltar an attractive jurisdiction for the arrest of vessels.
How has Gibraltar advocated for Admiralty legislation change to benefit its own state over the past decade?
There has not been much need for change in this case, as Gibraltar has always kept apace with UK and EU legislation facilitating the enforcement of maritime claims and the taking of security in Gibraltar in aid of maritime proceedings or arbitration abroad.
Do you see the need for any reform in Maritime Law in order to further benefit Gibraltar’s trade and business prospects?
Not immediately, but we may need to review it in light of Brexit, and once the nature of the UK’s and Gibraltar’s relationship with the EU becomes clearer.
On the back of a Brexit, how do you think Gibraltar’s Maritime relationship with the EU will be impacted in the near-future?
As yet, without a clear exit plan, we cannot know because it is still too early to tell how Brexit will affect port activities, the practice of maritime law, or ship registration. It is likely that after Brexit Gibraltar registered vessels, like UK registered vessels, will no longer be EU Member State Registered. This will obviously become clearer once the nature and extent of the UK’s future relationship with the EU is worked out.
A leader in your field, you were appointed as Queen’s Counsel in Gibraltar in 2014; what rewards and challenges followed this appointment?
I regard such an appointment as a great honour and recognition of my commitment to the development of legal practice in Gibraltar over the past 30 years. The appointment has not radically changed the many professional challenges and opportunities I have enjoyed and continue to enjoy.
At the end of the day, it’s more a matter of personal and professional satisfaction for myself and my firm (and possibly good publicity too!).
Is there anything else you would like to add?
As I said before I feel very privileged to be able to practise maritime litigation in a place like Gibraltar, which has such a rich tradition in this area, partly because of its geography, but also because of our practical and effective legal system which is based on the English legal system and which is so much more efficient than that of neighbouring countries. This, together with the professionalism of local practitioners, the dedication of the Admiralty Marshal, his broker and the Supreme Court to maritime cases, have secured Gibraltar’s status as a prime Admiralty jurisdiction worldwide.
When it comes to expert witness reports surrounding chartered surveying and construction disputes, the information at hand is not always accurate and consistent, making the expert witness’ analysis that much more complex.
Here we talk to Johnathon Gillies, a Chartered Building Surveyor and the Managing Director of Johnson Gillies Ltd, who discusses the challenges involved in producing such reports, details the differences in his work between commercial and residential property disputes, and briefs LM on the impact of civil procedure rules being introduced in the UK.
What does the expert witness role of a chartered surveyor involve on a day to day basis?
The role of the Chartered Surveyor is as indicated in the RICS Guidance Note ‘Surveyors Acting as Experts’. We are expected to provide an unbiased and objective opinion of the position. However, this is often unhelpful to the legal team and we try to provide advice to assist in supporting the case being presented. This does rely on us being briefed with the facts correctly presented.
The roles will be either as a Joint Expert, Court Appointed, or representing one side. The instructing solicitor will advise on the CPR S35 obligations.
We are often first approached by the solicitors representing the claimant or defendant. From the initial discussions, we often ascertain that there are questions that have already been raised which we need to answer. Once we have a firm instruction we often find it useful after we have reviewed the initial information to either have a conference or meeting with the client and solicitor to agree upon the exact questions that we are to answer or clarify the existing questions if they are too open. The reports may be disclosed so a clear understanding of privity of the report is needed.
The typical instruction will be provided by the legal team with specific points to be answered. Our role will be to inspect the property, take notes and records, view relevant documents, research the technical issues, give references and provide a report. We are very conscious that we are not lawyers, and must avoid presenting the evidence beyond our brief.
It is often a very hard role to be involved in and remove one’s self from taking sides on a personal level as the claimant or defendant tend to try and stress their own particular side of events that have occurred, which often appears as if they are trying to sway decisions. We have an overriding duty to the courts to give independent and impartial evidence based on the information and facts at hand, so removing any personal feelings and not taking sides is paramount for us.
What kind of inspection cases are you commonly appointed for and what principal issues do these present?
Obviously, as a Chartered Building Surveyor we deal primarily with construction related matters ranging from fire damaged property repairs, Housing Act disrepair, to poor workmanship in construction contracts in properties. Our principal instructions come through from solicitors or the courts, often relating to contractual matters between contractor and building owners. This tends to be in relation to what the scope of works were originally agreed upon and then the disagreement over payment or the cost of any extra works.
We tend to find that contracts are insufficient and the documentation appended (if it is at all) is generally unclear. The schedule of works are often not in any detail and if they do offer a list of work, it can generally be just a bullet point schedule.
One of our biggest issues when receiving a new instruction to report upon is receiving countless e-mails from both parties that generally have no relevance to the actual case and are usually a history of their arguments rather than the real issue. This often takes a lot of time to sort through what can be used, and can often be wasted time.
Do the difficulties differ when instructed on commercial property based cases as opposed to residential surveying cases?
Yes, commercial property matters tend to be more about the finer details compared to the overall issues as business’ appear to be more savvy when it comes to contracts or documenting the works. We also tend to find that commercial projects have specific professionals that have been advising during the works, which often helps with ascertaining the problems.
Commercial cases tend to be more about technicalities so often need a lot more research into what has gone wrong and the reasons for the dispute. Residential cases are more often over what the building owner thought the contractor was going to undertake.
Can you detail some of the challenges you find in business compliance with UK civil procedure rules (CPR)?
As we tend to deal with the detail of a building dispute keeping up to date with all the changes to the CPR can cause problems. We often find that keeping up to date with the almost yearly changes can create issues especially with the requirements for the courts.
The CPR S35 requirements focus our presentations on the facts and we find that the direction provided in the smaller cases is quite helpful, especially on restricted time matters such as Housing disrepair cases which can sometimes (rarely) be on funding from the public purse. However, there are often Cases where the presentation of interpretation of the facts needs to be developed to provide an alternative opinion to support the case presented for the client. We have to carefully balance the opinion with the duty to the court.
How does an expert witness’ role differ in boundary dispute cases?
Boundary disputes are rarely a clear cut matter and are often over very minor measurements of trespass. Disputes between two neighbours are often very passionate as it is their own property. This often presents major issues when inspecting sites to try and ascertain the level of trespass.
Unlike property related disputes, boundary dispute cases never give a definitive answer, as the only real information to hand is usually vague, and the available research is often limited to historical maps or the original conveyance documents. Old photos are often produced by the relevant parties which can put more doubt into a surveyors mind than make matters clearer.
It is often easier to have boundary disputes assessed by an Expert from each side, so that both may investigate separately and then present to the other the information at hand. This allows compliance with CPR by the two experts corresponding directly, allowing the agreement or disagreement of the actual line of junction to be depicted far quicker; unfortunately, this isn’t always the case. There have been recent proposals to allow boundary disputes to be dealt with by similar legislation to that of the Party Wall etc. Act 1996. We think this would be a successful alternative to litigation, and would be designed to allow practical solutions between surveyors. This may reduce lawyers’ involvement, but I think that the minor disputes are of limited commercial value, and would focus on more remunerative cases which would end in Court anyway.
Overall, how would you say the role of an expert witness chartered surveyor has evolved over the past 20 years?
Since I have been undertaking expert witness instructions, the various procedures have certainly got a lot tighter. Before the CPR 15 years ago, it was common for experts to deliver widely differing opinions in relation to the case at hand. Since the introduction of the rules along with the Guidance Notes and Practice Statements produced by the RICS, the role of the Chartered Surveyor has thus evolved particularly with giving evidence which is to be impartial and unbiased, and especially uninfluenced by the instructing party paying their fees.
The introduction of the CPR has benefited the public by the Experts being able to assess disputes as to whether they are tangible and worth pursuing.
One of the biggest benefits that I have seen is the encouragement for the two Expert Witness surveyors to meet throughout the investigation process, review each other’s reports, and then submit a joint statement on agreement. Like being called to the witness box, this is not for the feint hearted. A meeting between two Experts, especially with no chair to the meetings, can often become very heated if there is a disagreement between the two. The joint statement can or will often raise more questions from the legal team on the joint agreements and disagreements.
Is there any UK legislative change you believe could facilitate the work of chartered surveyors?
The Faculty of Party Wall Surveyors are trialling a boundary disputes document that appears to be successful and will try to help to resolve matters quicker.
Is there anything else you would like to add?
We believe that close cooperation between the whole clients’ legal team is essential for a comprehensive case to be presented. We are all specialist in our field and although one member must manage the case, it is important that the right specialist have input to achieve a strong case. I see the benefits to the client of the coordinated approach being that authoritative opinions are obtained.
Brexit sparked an uproar of debates and arguments in relation to the issues of immigration in the UK; some want tighter borders and restrictions, whereas others argue that this will hinder the UK and its economy. We speak to Helena Sheizon who summarizes the complexities that are now faced in immigration law and if the points based system is a liable alternative. Helena is an immigration lawyer specialising in EU free movement rights. She is registered as Level 3 (OISC top level) immigration advisor.
What would you say are the biggest complexities UK law faces in terms of immigration and nationality today?
By far the biggest challenge for UK law at the moment is to preserve or, if we talk about immigration law, to re-introduce the rule of law. In immigration context, the rule of law is unfortunately a past affair, just as much as the concept of Human Rights.
The biggest complexity which is facing the British economy and the British society is in the clash between a blind nationalistic belief of the policy makers that expulsion of any foreign national is ultimately for the public good and the social and economic necessity for migrants in the UK. London above all places is reliant on foreign labour and to a major degree on EU labour. According to statistics of recent research commissioned and sponsored by the London Chamber of Commerce, over 35% of construction industry labour in London comes from the EU, over 30% of labour in distribution, hotels and restaurants and well over 20% in finance, transport and manufacturing industry.
We are facing one of the biggest expulsions of masses of population from the United Kingdom and from London in particular; it is worth remembering that the overwhelming majority of these people are economically active. Someone will have to take over their jobs or we shall soon see our local Costa coffee shops closed with signs “Sorry we are closed. Everyone has left.” And it won’t be just Costa. Every fourth business in London will be at risk.
Would the Points Based System offer an alternative to EU labour?
I suppose it will. The question is whether it will be an adequate alternative, and I am afraid the answer is no. I understand that many immigrants in the UK are here because the UK has been attractive to them, as an open and cosmopolitan society, the world’s hub spot and a melting pot for talent from all over the world. In the changing climate, the UK will lose its attractiveness. And we will end up with immigration by necessity, i.e. people seeking to be here because it was even worse somewhere else.
Points based system is very taxing, especially for workers in the Tier 2 category, because they are tied to one employer, with no guaranteed right of settlement and the system is clearly open to abuse by the employers. Those who have a choice may prefer to be somewhere else and many EU nationals would not agree to work under restrictive conditions of the points based system.
What are your opinions on the Points Based Tier System, and how would you see this changed?
Points based system is very restrictive. It is restricted in numbers; it is restricted to highly skilled migrants and those whose jobs are on the shortage occupation list, and is restricted in terms of prescribed salaries and duration of visas granted. There is potentially a window for a new, Tier 3 category, which would cover lower skilled jobs, such as construction workers, plant operatives, caring and leisure services. This immigration category does not exist yet, but it is generally expected that it will be brought to life as a result of Brexit.
What are the consequences of non-compliance with UK immigration rules, and why is expert advice crucial?
The rules were described by the judges as byzantine regarding their complexity, unfairness and irrationality. And that was when the judges still had to apply the rules in immigration appeal hearings. Now immigration appeals have been abolished, there is no control over decisions of the government officials and administrative powers and discretion are unfettered. A minute noncompliance with evidential requirements may lead to expulsion of the whole family of a Tier 2 or Tier 1 worker without a right to return for 12 months, or without the right to bring the business for a conclusion where Tier 1 entrepreneurs are concerned. With dismantling of the Human Rights Act, the fact that the decision has a disproportionately harsh effect on the individuals affected is not of any relevance. In country right of appeal is further curtailed with effect from 1st December 2016 and 28 days’ grace period for making alternative applications after one failed attempted is substituted with much harsher provisions in the immigration rules. These changes in Immigration law now mean applications must be made right first time around and professional help is absolutely essential.
Is there anything else you would like to add?
We encourage employers of migrant workers to become more proactive in helping their employees obtain permanent right of residence in the UK. Next month we will start a series of free webinars ‘Protecting Migrant Workers’ and we invite employers of both EU and non-EU national migrants to join us.
Contributing to the topic of employment this month is Willy van Eeckhoutte, Founder of Van Eeckhoutte, Taquet & Clesse. A boutique Belgian law firm. Willy talks us through his firm’s experience and leadership in the employment sector, and details the importance of academic lawyers in advising the Supreme Court on certain aspect of law.
What do you primarily advise on in terms of employment & labour law?
Of course, I personally handle cases before the Supreme Court.
Furthermore, me and my team handle a wide variety of cases outside the courts. Where appropriate we also litigate in these matters: collective dismissals, employment contract and settlement negotiation, industrial accidents and social security issues, collective bargaining, transfer of undertaking, international employment, well-being at work, harassment at work, working time regulations, unfair competition, subcontracting and hiring out of personnel.
In advising corporations and businesses on employment matters in Belgium, what do you find are the most surprising pitfalls they never considered?
Due to its complexity, the number of pitfalls are numerous. Belgian employment, labour and social security law is also subject to constant change. That is where we come in, always keeping on top of things.
What other challenges arise that you help resolve? How complex can these become?
As a Supreme Court lawyer and a university professor I also act as a lawyers’ lawyer, helping attorneys with recommendations in complex matters or in order to maximize the opportunities in an eventual Supreme Court procedure, which I – contrary to them - can handle then myself.
What have been the most recent legislative developments in this field in Belgium and the EU? How might they impact your clients?
In 2014, the Belgian legislator gradually started reducing the numerous differences between blue and white collar workers. This will, in time, result in a less complex set of employment law rules. In the short term however, it means a significant increase of the dismissal cost of blue collar workers.
As a thought leader in this field, how do you believe employment law matters for senior executives can be made more transparent?
I think senior executives should not try to be familiarized with all the legal aspects of employment. The acceptability of some rules often won’t be very large for them. Confidence in and a good collaboration with a legal expert in those matters can help them see the wood for the trees.
You are a professor at the Ghent University; how would you say this helps in your thought leadership in this legal segment?
Judges, more than legislators, are very sensitive to what “the Academy” thinks, teaches and writes about legal issues, especially new legislation. Judges love to find support for their decisions in contributions of legal authors. Even the Supreme Court explicitly says it is open to receive guidance by comments on its judgements. In this respect the opinion of an academic lawyer can hardly be underestimated.
As a thought leader, if you could implement legislative changes in Belgium to facilitate your clients, where would you start?
Codification and rationalization of the existing employment and social security legislation, would be a first and significant step.
You have had numerous articles published in legal journals and are the author of several works on labour and social security law; how important do you believe awareness and education on these matters is?
Educating and training young lawyers is essential, not primarily to prepare them for litigation, but with the aim to make them receptive to the developments in society, in companies and in the work place that require an adequate legal response.
Gender pay gap is an on-going debate and issue in the workplace, especially in the past few months; we have had comments from PWC on the matter, women in the legal profession stating their gender hampers their career progress, and Equality and Human Rights Commission estimating that in the UK there is a gender pay gap of 20%.
Now, there is a new online tool that allows the public to find out the gender pay gap for their occupation, which has been launched by the Minister for Women and Equalities, Justine Greening today.
The online tool, created by the government and the Office for National Statistics, shows construction and building trades, and financial managers and directors have the highest gender pay gaps.
The online tool is launched as details of how large employers will have to report their gender pay and gender bonus pay gaps from next April have been published.
The regulations, which will affect almost 8,000 employers with around 11 million employees, will shine a light on workplace practices that could be preventing women from reaching the top in their organisations.
Tackling injustices like the fact that women earn on average less than men is a key part of building a society and country that works for everyone, as Theresa May made clear in her first speech as Prime Minister.
Minister for Women and Equalities Justine Greening said:
“Britain has the lowest gender pay gap on record, there are more women in work than ever before, more women-led businesses than ever before and there are now women on every board in the FTSE 100.
“But if we are to help women to reach their potential and eliminate the gender pay gap, we need to shine a light on our workplaces to see where there is more to do to. This tool will empower both men and women to challenge this issue in their profession and help people to make more informed decisions about their career.
“Employers must play their part in this too and take action to tackle the gender pay gap in their organisation.”
The online tool uses the latest data from the Annual Survey of Hours and Earnings to provide the most up to date gender pay gap data. The gender pay gap is now at a record low of 18.1 per cent and the online tool will show the gender pay gap by profession, so that the public can see how their job measures up against the national average.
Alongside the tool, an online quiz has also been launched allowing people to challenge their knowledge of what the gender pay gap is for a variety of professions.
The regulations, which have been publically consulted on and will now be debated in Parliament, set out the proposed requirements for employers in the private and voluntary sectors to:
By identifying the wage of the middle earner, the median is the best representation of the 'typical' gender difference. Employers will be asked to use data from a ‘snapshot’ period in April to calculate this average.
By taking into account the full earnings distribution, the mean look at both the low and high earners in an organisation – this is particularly useful as women are often over-represented at the low earning extreme and men are over-represented at the high earning extreme. As with the median gender pay gap, employers will use data from a ‘snapshot’ period in April.
This data will show the spread of male and female earners across an organisation, helping to show employers where women’s progress might be stalling so they can take action to support their career development.
As there is a significant issue around bonus payments in some sectors, employers will also have to publish the proportion of male and proportion of female employees that received a bonus during the year.
Jayne-Anne Gadhia, Chief Executive at Virgin Money and the Government’s Women in Finance champion, said:
“What gets measured gets managed and what gets published gets managed even better. Gender pay gap reporting will encourage all companies to put diversity and inclusion at the heart of their practices and work hard to ensure progress in this area.”
Emma Codd, Managing Partner for Talent at Deloitte UK, said:
"This is an important milestone on the journey towards greater gender parity at all levels within large UK businesses. Being able to access information about the gender pay gap will enable people to make better-informed decisions about potential future employers, and will also allow companies to consider gender pay data when selecting suppliers and partners."
Laura Hinton, executive board member and head of people at PwC, said:
“The current rate of progress towards closing the gender pay gap is too slow and gender pay gap reporting is an important step towards tackling both the symptoms and causes of gender inequality in the workplace.
“Publishing pay data alone won’t change anything - progress will only happen if organisations use this as an opportunity to understand what’s happening in their business and make some fundamental changes as a result. Bold action is needed to create true equality in the workplace."
(Source Education Gov UK)
VIPOLE reports rapidly increasing downloads of its end-to-end encrypted communications platform ahead of the introduction of the so-called "Snoopers Charter" into UK law early next year.
The controversial Investigatory Powers Bill, having now completed its passage through both houses of Parliament and received royal assent, is expected to pass into UK law in early 2017.
As well as making it easier for the authorities to track individual's internet and mobile phone usage, the new law confers sweeping new surveillance powers on numerous government departments, allowing agencies including police and security services, the tax office, health authorities, benefits agencies and many others, to use malware and other equipment interference techniques to covertly monitor private conversations and access stored data.
The new measures have been widely condemned as being overly intrusive. Speaking in a recent BBC interview, internet inventor Sir Tim Berners-Lee labelled it ‘Undemocratic’, adding that it: “Undermines our fundamental rights online" and "Risk(s) making the internet less safe for everyone."
Christopher Miller, head of development at VIPOLE, commented: "Freedom of speech and personal privacy is a fundamental cornerstone of democracy. Removing this safeguard for the vast majority of internet users in order to make it easier for the authorities to gather evidence on a very small minority of wrong-doers is, we believe, wholly disproportionate and sets a dangerous precedent."
Unease among internet users at the prospect of their private conversations being eavesdropped by such a wide range of government agencies is leading to the rapid growth of encrypted communications platforms such as VIPOLE. Its secure messaging and file sharing application employs end-to-end (e2e) encryption to ensure that chats, files, voice and video calls between users remain completely private and totally immune to interference.
Encryption applied by VIPOLE users is not reversible by any known technology and cannot be removed without knowing the user's private encryption keys.
Miller commented: "We have seen a steady increase in personal downloads over the course of the summer as news of the new IP Bill's passage into UK law became more widely known. We anticipate a big surge in new users when the law comes into effect next year."
(SOURCE: VIPOLE)
With an array of legal experience and varied sector backgrounds, from being an M&A lawyer in private practice, to a senior officer at the US Securities and Exchange Commission (SEC), our guest talks to Lawyer Monthly about the personal and professional rewards of being an Investment Funds lawyer and teaching this subject at Harvard Law School.
In the interview, Norman Champ, a Partner in the Investment Funds Group at Kirkland & Ellis LLP in New York, details his legal life, the experiences that brought him to be a leader in his specialist area, and the impact each encounter has had on his professional development and job satisfaction in the world of law.
What led you to embark on a career in the legal profession? What draws you to your specialist areas of corporate & investment funds?
I wanted to be a lawyer since I was a kid. I’m not sure exactly what motivated me, but I think it may have had to do with books I read about lawyers. In my book, ‘Going Public’, I describe my decision to pursue a law degree instead of a Ph.D. in History.
After clerking in the Southern District of New York, I worked at Davis Polk & Wardwell, where I practiced in several groups, including litigation. I ultimately became a mergers and acquisitions lawyer and represented several investment funds in transactions. Later, I formed a family of funds for a client and then ended up leaving Davis Polk to be the General Counsel and a partner in Chilton Investment Company, an adviser to long/short equity hedge funds.
Within these segments, is there a particular legal sub-category you are more passionate about? Please explain.
Currently, I focus on advice to investment funds concerning the regulatory environment. With the SEC conducting exams and bringing enforcement actions against private funds, I am passionate about helping these funds comply with the law.
If you never chose to be a lawyer, what other profession might you have pursued and why?
If I hadn’t been a lawyer, I think I would have pursued a career as a professor of history. After college, I obtained a master’s degree in military history at King’s College London, and I think I would have gone on to get a doctorate. The nice thing is that I get to fulfill my desire by teaching my investment management law class at Harvard Law School.
What is the most rewarding part of your job, both professionally and personally?
With my prior experiences at a law firm, as a partner in a private fund and as a senior officer at the SEC, I am well prepared to advise clients on regulatory issues. I find it quite rewarding to be able to provide timely and helpful advice to clients.
Personally, it is rewarding to have added tremendous talent at Kirkland to continue to grow the firm’s regulatory practice. Aaron Schlaphoff and Jamie Walter have joined as partners after we worked together at the SEC. Ammani Nagesh also joined from the SEC to help with client relations. It is a pleasure to practice with such great colleagues.
What would you say have been the most valuable legal experiences or cases that have brought you to where you are today?
When I was at Davis Polk, I stayed a generalist for as long as possible. I worked on financings, securities offerings and litigations before becoming an M&A lawyer. That broad foundation of my legal career has been invaluable in later roles as a private fund general counsel and a senior officer at the SEC.
How did being the Director of the Division of Investment Management at the SEC impact your legal career?
Being Director of the Division of Investment Management will always be a highlight of my career. I enjoyed the opportunity to influence policy in the investment management area. The position also gave me a much wider perspective on the financial services industry, as I interacted with the Federal Reserve and other agencies and many entities regulated by the SEC such as broker-dealers, credit ratings agencies and national securities exchanges.
You also teach Investment Management at Harvard Law School; how does it feel to be paving the way for the future investment management lawyers? What key advice do you have for them?
I enjoy teaching my class and have been doing so since 2008. It is one of the few investment management courses at a US law school, so it is a privilege. I try to urge the students to get as broad an experience in law as possible. That being said, I also urge them to take lots of tax courses because so much of business ultimately is driven by tax. I stay in touch with many former students and enjoy advising them on career decisions.
To what extent have you had a hand in developing or implementing new or amended investment legislation in the US?
In my book, I describe my role in money market mutual fund reform in 2014 and the Volcker Rule in 2013. While I was at the SEC, the US Financial Stability Oversight Council focused on the systemic risk of the asset management industry, so it was an eventful time.
Do you have further future goals? Are there avenues you still wish to explore in the global legal sphere?
I’m enjoying building the investment funds regulatory group at Kirkland. We have the largest group of investment funds lawyers in the world, and I value my relationships with my clients and my team. I look forward to continuing to help build the best group of investment lawyers in the world.
Your book titled ‘Going Public’, about your experiences at the SEC is due out from McGraw-Hill Education in 2017; what do you hope will be the overall response?
I hope readers will appreciate the progress that the SEC has made since the financial crisis at being a better and more data-driven regulator. I discuss some of the issues the agency faces, but also the improvements that have occurred. At the end of the book, I have the chance to present my ideas for reforms to make the government less harmful to markets.
Is there anything else you would like to add?
The SEC is conducting examinations of private funds at an accelerated pace and we are fortunate to have a deep regulatory group of more than 20 lawyers to help clients structure their operations to comply with SEC rules. We spend time with clients preparing for and responding to SEC exams. We also spend time helping clients in the registered fund space resolve complicated legal issues.
To learn more about ‘Going Public: My Adventures Inside the SEC and How to Prevent the Next Devastating Crisis’, and to pre-order a copy, visit www.goingpublicbynormchamp.com.
Earlier this month, The House of Lords EU Justice Sub-Committee, under the Chairmanship of Baroness Kennedy of The Shaws, continued its short inquiry into the consequences of Brexit for the rights of EU nationals in the UK, and for UK nationals in other EU Member States. The Committee heard evidence from barrister Anthony Speaight QC and leading academic Professor Catherine Barnard.
Nationals of any EU Member State are deemed citizens of the European Union and therefore enjoy the same treatment under EU law, irrespective of their nationality, anywhere within the EU. The loss of this fundamental status, as a consequence of leaving the EU, leaves many EU nationals in the UK and UK nationals in other Member States with their EU citizenship rights, such as residency rights, uncertain.
This month’s ‘Your Thoughts’ is dedicated to answering the never-ending questions circling the effects of Brexit. As the UK embarks on a decision that somewhat surprised the entire world, the Government has to consider several factors when moving the UK out of the EU; a major factor that remains prevalent, is immigration and the movement of EU members. The ever-important question, however, is how will those who currently live in the UK be affected. Some have already considered venturing outside the UK, whereas those who want to stay, fear they may not be welcome to do so.
To shed light on some of these issues, we reached out to several experts and professionals in their field, who have given particular insight into how the rights of EU citizens will be preserved and what Brexit could possibly imply for EU nationals currently residing in the UK.
Rustom Tata, Chairman of DMH Stallard:
The answer depends on many inter-related factors, but my view is that it will be a qualified ‘yes’, with a distinction being drawn between those settled here and newer arrivals.
Economic and labour market imperatives for the UK mean that there will continue to be the need for overseas workers, in a variety of skilled, semi-skilled, and lower skilled roles. Certainly, away from the glamour of city banking and finance, the “Cinderellas” of construction, hospitality and care have all loudly trumpeted their dependence on EU workers.
Unless the UK Government is, for instance, going to introduce a major overhaul to the apprentice schemes already in place, so as to ensure that there will be a pool of skilled, motivated individuals to fill the gaps which will no longer be filled by EU workers, there will be an economic imperative to allow entry to the UK.
In return for a somewhat limited access to the EU free market, we could well see the freedom of movement of people pared down, so as to only relate to those who are economically active in some way.
This could be narrowly defined as ‘workers’ – that is those with a job offer, and probably those who can show that they are actively looking for a job. It may be that people in the latter category would only have the right to remain in the UK for a finite period, or that they would need to hold skills or qualifications identified by the UK Government as in short supply.
What about those already here? One strong possibility is that EU nationals in the UK (and whether or not if they are in work) at a specified date, will be able to remain and compete for employment in the UK alongside UK nationals.
From the work we are doing with clients across a number of sectors, it is clear that HR teams are reviewing the composition of their organisation’s workforce, and trying to plan for the contingency of a reduced pool of labour.
However, there is already concern that EU nationals currently in the UK are considering options outside of the UK, given the uncertainty that they face. Some are relocating abroad or actively looking for their next role within another EU country. People facing such uncertainty and without other connection or reason to stay in the UK may well choose to leave.
Sophie Barrett-Brown, Head of the UK Practice at Laura Devine Solicitors:
Following the EU referendum, EEA nationals and their families remain uncertain about their future in the UK – posing real concerns for many UK employers.
Until the UK actually leaves the EU – at least 2 years from now – it remains bound to recognise free movement rights. But this is cold comfort to many of the 3 million EU nationals already in the UK and their employers, as they struggle to plan for the future.
Although the government seems likely to put in place arrangements for equivalent permission to be granted under UK law when EU law rights evaporate, it is unclear what this will look like. What type of permission to remain will be granted? Will this be for those who have already acquired permanent residence, those in the UK by the date of the referendum, the date the UK actually leaves the EU, or some intervening date? And what will the process be?
Those who have already acquired permanent residence, having lived and exercised Treaty rights in the UK for five years, are likely to be granted equivalent indefinite status. Those who have not yet acquired permanent residence but are exercising Treaty rights before the cut-off date are likely to be given either indefinite or temporary status. EU nationals not exercising a Treaty right before the possible cut-off date face the greatest uncertainty.
The vast majority of EU nationals in the UK are essentially undocumented – as they’ve never had any need to seek Home Office documentation. So, some form of application process to identify cases where replacement rights under UK law are to be conferred seems likely. With 3 million already in the UK, an en masse rush to apply stands to be a recipe for administrative chaos.
This rush has already begun, with many applying for registration certificates and permanent residence certificates so that they are already identified as EU nationals, with recognised rights of residence in the UK, when the time comes.
Remarkably, the process of applying for a document recognising Treaty rights (a right, not a privilege) is extraordinarily cumbersome and slow. The Home Office has sought to implement some recent improvements, however at the same time problems remain or increased hurdles have been raised. Applications usually take 6 months to be considered, require excessive documentation and are frequently incorrectly rejected, causing unnecessary complication and delay.
For companies, not only is there the uncertainty of planning for their current EU workforce, but the unknown landscape for future assignees and new hires from the EU post-Brexit.
The sooner clarity can be achieved, the better for all.
Henry Warwick, Barrister, Henderson Chambers:
The extent to which rights of EU citizens living in the UK will be preserved following Brexit is unknown. But it is becoming clear that the position will be closely linked to the fate of the one to two million British citizens who live elsewhere in the EU. Led by Patrick Green QC, I represent a group of clients who made the case for British citizens overseas in the much publicised ‘Article 50’ judicial review (R (Miller & anor) v. Secretary of State for Exiting the European Union). My clients are seeking to ensure their parallel concerns are considered.
November’s High Court judgment in this case addressed the constitutional position as to the notification process under Article 50 of the Lisbon Treaty. The basis of the decision reached was that Parliament had conferred rights upon citizens by enacting the European Communities Act 1972. The effect of giving notice is that many such rights, including those relied upon by non-British EU nationals in the UK and British expatriates, will be lost and cannot be replicated by UK legislation. This is why the Court ruled that there was no prerogative power to give notice, and why Parliamentary approval is essential.
The fundamental rights both groups enjoy derive from their status as EU Citizens; they include rights arising under the Treaties, rights implemented in national law pursuant to Directive EC 2004/38, and rights guaranteed by the Charter on Fundamental Rights. The effect of their removal will be profound: British expatriates, for example, rely not only upon their ability to live in another member state, but also to access public services including healthcare, to work and establish businesses and to equal treatment, which we take for granted.
Prior to the referendum, the government acknowledged these would not be acquired rights as a matter of international law. It has since engaged in bilateral discussions, as talks with the Commission are currently banned by order of its President, Jean-Claude Juncker, a measure we are also challenging under Article 263 TEU in the General Court in Luxembourg. It is clear so far that the rights of EU citizens living in the UK will be dependent upon rights being granted reciprocally to British citizens living in Europe. That in turn will turn upon the success of the Government in its negotiations. There is therefore a very real risk that many of the rights of EU citizens in the UK will not be preserved post-Brexit.
Michael Hatchwell, Officer and Director at Globalaw:
As it currently stands, it would be against the law to reduce or diminish the rights of EU citizens living in the UK. However, once the UK has officially left the EU and Brexit has been fully enacted, the laws may be changed to reflect this new political situation; EU citizens living in the UK will no longer fall under a special legal category, but could instead become grouped with all other or certain categories of other foreigners living in the UK.
Overall, it seems unlikely that the rights of EU citizens to be treated as UK citizens will be stripped in their entirety as result of Brexit.
As regards to property ownership (real estate and companies) there are no real restrictions on foreign ownership of UK assets, so there is no reason why EU citizens or entities will be worse off in this regard after Brexit. However, the continuation of other key rights associated with EU membership, such as the free movement of people, is more difficult to predict.
The issues and considerations relating to free movement of people, namely: immigration, visas, the right to travel, the right to work and more, were a major focus and at the forefront of the Brexit debate. Currently, we see that these topics are now open for public debate and renegotiation within the public sphere. What remains to be determined is the impact that these debates, driven by popular sentiment, will have on the laws of the UK. It is worth noting that the UK economy is dependent upon hundreds of thousands, if not millions, of workers from the EU who currently work in the country.
Groups such as the 3 Million Forum, a group of EU citizens living in Britain have announced that they will launch a formal campaign for a new law to protect their rights post-Brexit. Is there any reason why their rights are less important than a British citizen? After all they came here legally and openly as part of the UK joining the EU.
One way to look at this is through the lens of the recent public reaction to the High Court’s ruling that Parliament must vote on triggering Brexit. This ruling, which frankly was entirely predictable, has led to pro-Brexiters claiming this is contrary to the will of the people as the ruling may be used to delay Brexit. On the first day of the appeal, December 5th, Nigel Farage has announced that he will lead a 100,000-strong march to the Supreme Court in protest to any delays to the government’s plans to trigger Brexit.
The appeal decision will be important. I do not anticipate that the original decision will be changed. The referendum was a crude and simplistic way of seeking a vote on a matter of very great complexity and it is inevitable, especially when no one had considered the consequences of the Brexit camp winning, that a huge mess would ensue. Referenda appear democratic but absent a clear constitutional path as to consequences of any vote, the result is inevitably confusion and uncertainty.
There is a long way to go before there will be real clarity on such complex issues. In the meantime, the status quo prevails.
More than 50,000 people have now signed up to Land Registry’s free Property Alert service.
The service helps people to detect fraudulent activity on their property by sending them email alerts when there is certain activity on the property being monitored, such as a mortgage being taken out against it. The recipient can then decide whether they think the activity is suspicious and act quickly if so. The alert email tells them who to contact should they be concerned.
Alasdair Lewis, Director of Legal Services, said: “Property is usually our most valuable asset so it’s important to protect it from the ever-increasing risk of fraud. Land Registry is doing all it can to detect and prevent fraud but no system can be 100 per cent fraud-proof, which is why we urge people to follow our advice about protecting themselves from property fraud, including signing up for Property Alert.”
Property fraud
Property fraud is where fraudsters try to “steal” a property, most commonly by stealing the homeowner's identity and selling or mortgaging the property without their knowledge. They then disappear with the money leaving the true owner to deal with the consequences.
Since 2009, Land Registry has stopped fraud on properties worth more than £92 million.
How Property Alert works
You can monitor up to 10 registered properties in England and Wales. You will receive email alerts when there is certain activity on the properties you are monitoring, such as an application to change the ownership details.
Although Property Alert won’t automatically stop fraud from happening, it’s a useful early warning of suspicious activity which the home-owner can investigate if they are suspicious.
Example of how Property Alert helped to prevent a fraud
A landlord was renting out a property in England while he lived overseas. He was aware that absent landlords are more at risk of property fraud and signed up to our free Property Alert service. When he received an alert email informing him of a mortgage application being made against his property worth over £300,000, he contacted our property fraud line immediately as he wasn’t expecting this. Using this intelligence, we investigated and discovered the fraud. We then prevented the application from being registered. His contact details were out of date, so we advised him to update them, which he did so that if we need to contact him in the future he will receive our emails or letters.
Most at risk
You’re more at risk if your property:
Other fraud protection measures
To help protect yourself against property fraud, make sure:
your property is registered. If you become an innocent victim of fraud and suffer financial loss as a consequence, you may be compensated. Properties most likely to be unregistered are those that haven’t changed hands or been mortgaged since 1990.
Land Registry has up-to-date contact details so we can reach you easily. You can have up to three addresses in the register including an email address and/or an address abroad.
More property fraud advice is available and you can watch our video.
(Source: UK Land Registry)
