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Solicitors’ compulsory 16 hours of CPD to end in 2016 24 May 2014

The Solicitors Regulation Authority (SRA) announced this week that from November 2016 it will no longer be necessary for solicitors to complete 16 hours of Continuing Professional Development (CPD) each year.  Instead the SRA will rely on existing provisions in its Handbook requiring a proper standard of legal practice and of training and supervision from solicitors and organisations.  This is subject to the approval of the Legal Services Board, but one assumes that the proposal would not have got this far without the LSB’s encouragement.

This decision follows a consultation held early in the year (see my blog article on 7 February 2014 “Consultation on ending CPD box-ticking requirement“).  The SRA left us in no doubt as to which of the three options offered in the consultation document it favoured, and it has not surprised us now.

The SRA’s press release on 21 May 2014 included this:

“The SRA opted for option 1 because it

  • focuses on the effectiveness of training;
  • gives individuals—and firms—more flexibility and choice in the training they feel is appropriate;
  • reduces the burden of regulation.

 

“However the SRA recognised that many respondents to the consultation were concerned that option 1 could result in some firms failing to offer appropriate CPD. To reflect this concern the SRA Board decided to delay the implementation of the proposals until November 2016 with a transition period beginning in February 2015 to ensure that appropriate advice and guidance could be provided to get the correct culture of training and focus on competence across all firms. In addition a declaration to be added into the individual and firm practising certificate renewal will require each individual and firm to confirm that they have considered their CPD needs.

“Solicitors and firms wishing to adopt the new approach early on will be able to do so from Spring 2015 when a Competence Statement (indicating what a competent solicitor should look like), and supporting guidance, are due to be published.”

The decision also means that training providers will no longer need to be authorised by the SRA. 

This will also be one step towards regulated entities and solicitors taking responsibility for their own learning, by developing their own judgements about the quality of training and the appropriateness of a particular course.”  (para 12 of the report to the SRA Board)

Personally, I think ceasing to authorise training providers is the only good thing to come out of this.  Currently I have to explain to potential clients that I am not authorised by the SRA (it costs quite a lot of money and inconvenience to get authorised, yet it would not improve the quality of my training offerings).

The SRA’s report on the consultation responses has not yet been formally published, but there is a copy of the draft version (for approval by the SRA’s Board on 21 May 2014) here.  There were only 64 responses to the consultation, although several were from representative organisations like the Law Society.

The major risks were summed up in the report to the SRA’s Board like this:

“13  Access to training: The key risk identified through the consultation exercise with a move to option 1 is the risk that some firms will reduce training budgets, restricting the training individual solicitors undertake. We have set out our response to this concern in the draft response to the consultation.

“In line with the views and advice of the Education and Training Committee, we accept the need for culture change and we will implement a comprehensive stakeholder strategy to reinforce a number of key messages including:

  • continuing competence remains a matter of key importance for the SRA, as regulator
  • training and development is still an important tool for regulated entities in ensuring that their staff are competent to carry out their work
  • training needs can be addressed in a wide variety of ways, not just through formal training courses
  • staff in regulated entities should be given the tools and the opportunity to reflect on their practice, consider their training and development needs and address them appropriately

 

“14  Over-compliance: There is also a risk that some firms or individuals will react in an opposing way and, in the absence of a specified hours requirement, will overcompensate by investing unnecessary time and money into training and development in an attempt to ensure compliance. Again, our stakeholder engagement and guidance will assist in this regard.”

I have to be honest and say that I don’t think the second point need concern any of us unduly. 

Is this a positive change?

It is clear that, for some lawyers, CPD is addressed cursorily and the requirement to obtain 16 hours of it is not taken seriously.  There are too many stories of litigation lawyers attending property training courses (and vice versa) for this to be an urban myth (actually that wouldn’t satisfy the CPD requirement, as any training has to be relevant to your role – but that point is consistently overlooked or merely ignored).

My personal feeling has been that 16 hours has always been a figure plucked from the air, but it feels broadly correct.  So not everyone achieves 16 hours, but the majority probably do, and many exceed it.  And the existence of a minimum figure means that at least most solicitors will acknowledge the need to keep themselves up to date.

Yet this reaction by the SRA seems more like a train company cancelling a train because it is overcrowded.  It wasn’t working in the way we wanted it to work, so we will stop it altogether.  This is in the same week that Estates Gazette reported that the RICS is to chase up the one-tenth of the surveyors’ profession that has not yet recorded (in the RICS’s own database) the 20 hours of CPD that surveyors are required to complete each year.

If you were a member of the public, looking at the equivalent requirements for solicitors and surveyors, which regulator’s actions would make you feel more confident?  I say that as a solicitor, not as the proprietor of a newly formed training organisation.   Individual training consultants will not be too concerned by this change.  There are plenty of firms that value training for its own sake (not because it is a regulatory requirement).   It is the big providers that have the most to lose.  It looks to me as if their business model has been swept away overnight.

I will conclude, then with one of the key reasons why this exercise was undertaken in the first place.  The SRA says in para 50 of its draft consultation response:

“It [CPD] tells us and the individual solicitor very little about the value of any CPD undertaken and creates a false certainty that undertaking 16 hours CPD will ensure a solicitor remains competent.”

One cannot deny that.  The problem is that many of us are not yet convinced that the new regime (ie option 1 in the consultation paper) will be any better.

For another viewpoint, there is an article about the changes on the Law Society Gazette’s website here.

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No refund of rent for M&S 14 May 2014

The Court of Appeal has (as I predicted!!) today overturned the first instance decision in Marks and Spencer PLC v BNP Paribas Securities Services Trust Company (Jersey) Ltd [2014] EWCA Civ 603.  Reversing Morgan J’s first instance decision, the Court of Appeal ruled that it was not appropriate to imply a term into the lease that M&S was entitled to a refund of the balance of the quarter’s rent paid in advance when a break clause was exercised.

Arden LJ said:

“I have come to a different conclusion from the judge for the primary reason that in my judgment the lease, read as a whole against the relevant background, would not reasonably be understood to include such a term, and thus the test for an implied term is not met.

“In my judgment, when all the circumstances are considered, the correct inference to draw is that the parties proceeded on the basis that the loss from a payment of rent for the broken period should lie where it fell.  Thus no term for repayment is implied.”

This is obviously bad news for M&S, and perhaps for justice (and I suspect, perhaps also for M&S’s solicitors’ insurers).  But it is good news for legal consistency.

So it really does look as if there is no solution for tenants who wish to exercise a break clause and yet who need to ensure that all rent to date is paid on the quarter in which the break date falls.  Traditionally it has been the custom for a break date to fall on a rent payment date.  If a lease containing a break clause is being granted today, the tenant will normally require the break date to be the last day of the month or the quarter (depending on whether rent is payable monthly or quarterly), not the first.  It is also usual (or at least not uncommon) for tenants to request the inclusion of a provision under which the landlord repays any rent relating to the period after the break date.  It is difficult for the landlord to resist such a provision, if it is requested.  It might have been unusual five or ten years ago, but solicitors acting for tenants should be aware of this point by now.

Scorecard

In my blog article entitled “Five important landlord and tenant appeal decisions awaited” on 12 February 2014, I predicted the results of five cases.  I did not fare too badly, although not as well as I had hoped:

Jervis v Pillar Denton Ltd (whether administrators have to pay rent for the time they use a property on a day by day basis) – I failed to anticipate the Court of Appeal’s decision that the landlords would triumph. 0/10.

Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd (implied term to repay rent after lease break) – correctly anticipated. 10/10.

Siemens Hearing Instruments Ltd v Friends Life Ltd (requirement for specific wording in a break notice) – unaccountably I said that the validity of the defective break notice would be upheld.  The Court of Appeal held it was ineffective.  What was I thinking?  0/10.

Barclays Wealth Trustees (Jersey) Ltd v Erimus Housing Ltd (whether a tenant was occupying a property as tenant at will or periodic tenancy) – I correctly predicted that the occupation was as tenant at will. 10/10.

Peel Land and Property (Ports No 3) Ltd v TS Sheerness Steel Ltd (whether the plant and machinery in a steelworks constituted tenants’ fixtures) – I correctly predicted that the main decision would not be overturned although the landlords succeeded on their appeal in relation to the interpretation of the alterations covenant in the lease.  This part of the decision may yet be appealed.  Let’s say 5/10 for now.

So – somewhere around 25/50 at present.  As some of the cases may find their way to the Supreme Court, I am hopeful that the final score will be rather more impressive.

UPDATE ON 4 DECEMBER 2014 – On 11 November 2014 the Supreme Court granted leave to appeal the Court of Appeal decision in Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd.

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Adverse possession of residential property 12 May 2014

Trespassing in residential property has recently been made a criminal offence, under section 144 Legal Aid, Sentencing and Punishment of Offenders Act 2012.  Acquiring title by adverse possession requires the squatter to be in adverse possession for a specified number of years  – which is now a criminal offence.  And the case of R (Smith) v Land Registry [2009] EWHC 328 (Admin) makes it clear that one cannot obtain a title by adverse possession where the acts that are relied upon constitute a criminal offence (obstruction of the highway in that case).  So is it still possible to obtain a title to residential property by adverse possession?

In its response to the consultation that preceded the introduction of section 144, the Land Registry raised the point, saying that one of its effects would be to prevent squatters acquiring ownership of residential property through their possession.  This was duly recorded but, in spite of that, the issue was not addressed by Parliament.  There is simply no indication whether section 144 was intended to change the law relating to adverse possession to make it impossible for a squatter to obtain a title by adverse possession.

The issue has now been considered by the court in the case of Best v Chief Land Registrar [2014] EWHC 1370 (Admin).  The Land Registry rejected a claim by Mr Best, a squatter in an abandoned property, to be registered under Schedule 6 to the Land Registration Act 2002.  This was on the basis that a criminal act cannot found a claim for adverse possession, following the Smith case.

The High Court has held that the Land Registry was incorrect to cancel Mr Best’s application.  The judge decided that he did not agree with all the observations in Smith.   He preferred the decision in Bakewell Management Ltd v Brandwood [2004] UKHL 14, a case concerning acquisition of prescriptive rights of way. In that case, the court held that criminal behaviour is not a bar to acquisition of property rights where the activity would not have been criminal had it been authorised by the owner.  That was the case here.  If the owner had authorised Mr Best’s occupation, it would have ceased to be criminal behaviour.

Accordingly Mr Best is now free to apply to the Land Registry once again to be registered as proprietor under Schedule 6, which is not an easy process (and too complex to discuss here).

This is a sufficiently important case to warrant consideration by the Court of Appeal.  However, it would seem wasteful for the Land Registry to appeal against this first instance judgment.  One wonders what will happen next.

Click here for the judgment.

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Petition to save the Land Registry 5 May 2014

I have written in the past (here and here) on the Government’s proposal that the Land Registry (or part of it) should be turned into a service delivery company.  The second article summarised the Law Society’s adverse response, and is well worth a read.

It appears that the Law Society is not alone.  The Council for Mortgage Lenders was not enthusiastic (click here for its response), saying “It is clear that the Government feels there are benefits to be realised if the Land Registry’s structure is changed to increase flexibility in how it operates.  However, there is little evidence as to what these benefits might be.  It is therefore difficult to weigh the advantages of a move towards a split of policy and delivery functions, against the potential disadvantages.”

And it seems that the idea has not gone down well with the rank and file.  An enterprising lawyer, Elizabeth Matfin, who practises at Coles in Thirsk, North Yorkshire, has started an e-petition, as follows:

“The Government is taking the first steps which will lead to a sell-off or part privatisation of the Land Registry.

“The Land Registry is a highly respected and trusted institution.  It is profitable.  Yet the coalition Government believes it would be better value for money if it were privatised.

“We ask the Government to reconsider these ill-founded plans and preserve the Land Registry in its current form.”

At the time I am typing this article, the petition has attracted just under 5,700 signatures.  It will be closer to that number once I have signed it.  And it will be getting nearer to 6,000 if all my readers sign it as well.

Why sign an e-petition?  The website states:

“The e-petitions House of Commons Backbench Business Committee receives notification from the Leader of the House once an e-petition has 100,000 signatures.  The Backbench Business Committee meets weekly when the House of Commons is sitting to hear representations from MPs for debates in backbench time.  The Committee can consider any subject for debate, including those raised in e-petitions or national campaigns but an MP must make the case for their consideration.”

Obviously 100,000 signatures is a LOT more than 5,700 signatures.  But even a few thousand ought to be enough to influence the outcome of the consultation.  Fingers crossed.

Sign up to the petition here.

Postscript: another petition that needs our support is on the website of the Hawk Conservancy Trust: sign the petition to call for a ban on the use of diclofenac in Europe.  This drug, used on cattle, has already caused the death of 99% of vultures in the Indian sub-continent.  Vultures prevent diseases spreading to humans.  It makes no sense to permit its use in Europe.

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Fewer dissenters in the Supreme Court 1 May 2014

What I am about to describe has probably happened to many of the readers of this article. You start to read the first judge’s decision in a case, and only after having read it all, in immense detail, do you discover that it was a dissenting judgment ie the judge was disagreeing with the decision of the majority.  In a Court of Appeal case, at least this can happen only once, as there are normally three judges.  In the House of Lords and the Supreme Court, however, there are are five judges – so it is possible to read two judgments that might both be dissenting, before realising you are going down completely the wrong track.

There are ways of avoiding this, of course.  If you are reading a decision in a law report, the headnote (which is prepared by a barrister) will make clear both what the majority decision is, and who (if anyone) dissented (and why).  And for a case in the Supreme Court, one can read the summary of the decision that is issued by the court itself (a thoroughly modern development, for which we should all be extremely grateful).  But typically the problem arose in the past on the day when a House of Lords decision was released.  Neither of these explanatory aids was available.  You were faced with tens or, on occasions, hundreds of pages of judgment, just hoping that either all the judgments went the same way, or that dissenting judges prefaced their remarks with an apology that they were unable to agree with the majority.  Not all of them did.  (Some of them were presumably not apologetic at all.)

Quite apart from the practical problem described above, I have always had a problem with dissenting judgments.  It is no secret that my least favourite landlord and tenant decision is probably Eagle Star Life Assurance Co Ltd v Mannai Investment Co Ltd [1997] UKHL 19, a case involving a break clause in a lease.  The tenant had the right to break the lease early, by giving six months’ notice ending on “the third anniversary of the term commencement date”.  The tenant’s solicitors apparently failed to read the lease properly and served a notice that ended at the end of the third year of the term – 12 January 1995, instead of 13 January 1995.  Was the notice valid?  Purists (including me), previous cases and the three judges in the Court of Appeal said No.  The notice should say 13 January.  A notice saying 12 January was simply not effective to end the lease.

The House of Lords, however, said that the notice was valid – because its meaning was clear to a reasonable recipient.  No recipient could have confused the dates, since the date 12 January meant nothing in the context of the lease.  So the notice must clearly have been intended to say 13 January.  It was therefore effective to break the lease.

I have three problems with this case.  First, I think it was sending the law in a wrong direction – away from legal certainty.  It has spawned dozens of cases in which the parties argued about the validity of a notice.  None of those cases would have been necessary if the law had remained (as it had been prior to this case) that an accurate notice is valid and an inaccurate one is not. Secondly, the case was decided in the tenant’s favour by a majority of three to two – so 40% of the court found for the landlord.   And the two dissenting Law Lords gave their speeches first, leading the innocent reader to believe for several minutes that the landlord had triumphed – and wasting a lot of reading energy while doing so.

(Curiously, as others have no doubt written before me, overall more judges decided in the landlord’s favour than the tenant’s favour – five against four.  But the views of the Court of Appeal judges count for nothing in a House of Lords or Supreme Court decision.  Perhaps we should revisit that rule – but that can be the subject of a different article in the future.)

Thirdly, I am not a supporter of the concept that judges should be permitted (even encouraged) to disagree with one another, and there is no clearer demonstration than this case.  It must surely bring the law into disrepute if five of the most intelligent people in the land cannot agree on something as simple as whether a notice served under a lease is valid or void.

SO (to the point of the article, at last), it comes as a great relief to read of some research reported last week in The Lawyer newspaper (Judicial dissent wanes under Neuberger regime at UK Supreme Court) about the reduction in the number of dissenting judgments in the Supreme Court since Lord Neuberger’s arrival there.   I was not previously aware of this, but when delivering the first BAILII lecture in November 2012, Lord Neuberger said “While I am emphatically not suggesting banning dissenting judgments, it may be that we could have fewer of them and they could be shorter.”  Lord Neuberger’s fellow Supreme Court Justices must have been paying attention, for between mid-June 2013 and mid-February this year (eight months) there was apparently not a single dissenting judgment.

The issue is also the subject of a longer feature article by Katy Dowell in The Lawyer, All for one, that contains more detailed analysis of Lord Neuberger’s influence on the Supreme Court, and considers the tricky question of whether dissent in the courts might actually be a good thing, in that it stimulates legal debate.  I thoroughly recommend it (the article, not the dissent).

Incidentally, I was taught when serving a notice NEVER to include a date, as then you can’t get it wrong.  Instead, just copy out the wording in the break clause.  The whole of the Mannai litigation could have been avoided if the tenant’s solicitors had simply served a notice that stated that it expired “on the third anniversary of the term commencement date of the lease.” Serve a valid notice first, and then argue about what the correct date is afterwards.

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