On 25 May 2018 the General Data Protection Regulation (GDPR) came into effect, and was heralded as the EU’s biggest shake up of data protection regulation to date.
In the run up to ‘GDPR-Day’ we were inundated with emails from businesses asking us if we wanted to “stay in touch” and asking us to re-consent to email marketing. Businesses scrambled to put in place GDPR compliant privacy policies by the 25 May deadline, with the threat of fines at a maximum of €20 million or 4% of annual global turnover on the horizon.
However, the reality is that many organisations had not completed their GDPR preparations by that date, and with the perceived grace period for implementation over the last year, many companies are still behind. Fines under the GDPR have also been limited. Over the past year there have been €56 million in fines issued against errant organisations, of which €50 million was issued against Google by the French data protection office and the balance split between much smaller fines.
Notwithstanding, what is obvious is that individuals are more conscious than ever about what data they share, who they share it with, and what those organisations then do with it.
The GDPR is intended to be an exercise of ongoing compliance, rather than a tick-box-exercise. Our top tips for achieving ongoing GDPR compliance are below:
Policies and Procedures
As a bare minimum, organisations should make sure that they have in place GDPR compliant privacy policies and cookie policies, and have systems and procedures in place to record their processing activities (including processing purposes, data sharing and retention).
If you are carrying out processing that is likely to result in a high risk to individuals, you must ensure that you carry out Data Protection Impact Assessments (“DPIA”).
This is not the end of the exercise, however, with the ICO stating in their annual review earlier this year that one of their focuses for 2019 is ensuring that organisations move beyond ‘bare compliance’.
Register with the ICO and pay the relevant fee
This requirement is easy to satisfy. Any organisation that is a data controller needs to register with the ICO and make payment of the annual data protection fee. This is one area where the ICO has been cracking down on both larger and smaller companies, and imposing significant fines for non-payment.
3rd Party Contracts
The GDPR requires organisations (data controllers) to enter into written contracts containing specific provisions with any 3rd party that processes personal data on its behalf (data processors).
This is one area where we often see organisations falling behind, and particularly where personal data is transferred outside of the EU. Having in place a standard set of contractual provisions which can be included in any terms of service or supplier agreement can be simple way of ensuring that this element of compliance is dealt with.
Data Subject Access Requests
Does your organisation know how to handle a Data Subject Access Request (“DSAR”)? Over the past year we have seen an increase of DSARs, and in particular those issued by employment lawyers or litigators looking to secure a tactical advantage. Individuals do, however, have a right to access their personal data, and organisations need to know how to respond to these in an effective and efficient manner to avoid expending unnecessary time and resources or a breach of the individual’s rights.
Many organisations will have carried out some element of training in the run up to the GDPR deadline last year, but it is always sensible to ensure that staff are kept up to date. Organisations should consider running regular refresher training, particularly for staff who handle large amounts of personal data including HR and marketing. This is key for understanding what to do in the event of a breach, upon receipt of a DSAR, and when to carry out a DPIA.
Appoint a Data Protection Officer (if necessary)
The GDPR makes it a legal requirement to appoint a Data Protection Officer (“DPO”) if (a) you are a public authority or body, (b) your core activities require large scale, regular and systematic monitoring of individuals (for example, online behaviour tracking), and (c) your core activities consist of large-scale processing of special categories of data or data relating to criminal convictions and offences.
Organisations can also choose to voluntarily appoint a DPO.
The DPO can be an existing member of staff, or externally appointed.
Work towards “data protection by design and default”
This means you have to integrate or ‘bake in’ data protection into your processing activities and business practices, from design right through the lifecycle. Data protection by design is about considering data protection and privacy issues upfront in everything you do. It can help organisations to ensure that they comply with the GDPR’s fundamental principles and requirements, and forms part of the GDPR’s focus on accountability.
As part of the due diligence process, your lawyer will investigate the title to the property held with the Land Registry, where registered, when the property is either being sold or leased. This will include looking at physical alterations that have been carried out to the property and checking those against records held with the Local Council’s Planning Authority and Building Control Department.
A buyer or prospective tenant under a lease would need to establish whether the seller is legally able to transfer the property and that all necessary consents have been obtained.
Where there are defects that would adversely affect the buyer’s interest then they will need to be resolved and possibly disclosed to the Lender before releasing security.
A defect is a matter that negatively affects the property and some examples are as follows: –
Where insufficient Planning Permission or Building Regulation Consent has been obtained and a lack of Final Building Control Completion Certificate issued on completion of works. This can include lack of Conservation Area Consent or lack of Listed Building Consent.
Title documents not being available which may contain covenants and easements affecting the property of which are now unknown, and the Land Registry just does not hold copies.
Easement or rights benefiting the property which are not contained within the title, for example, rights of way, rights to use utilities or rights to enter on to third party land for a right of way or access to utilities which a seller has had the benefit of but cannot document legally. Armed with a sworn Statutory Declaration indemnity insurance may be obtained in the absence of an approach to the Land Registry for an adverse possession claim or prescriptive right of way.
A title covenant which will be breached preventing a specified use or development being carried out.
The title indemnity policy is only available in respect of a title defect to protect the owner of the property from loss which might arise from the defect, for example, a reduction in value of the property or paying compensation for damages. The policy does not remedy the title defect it just provides financial compensation in the event the defect causes actual loss subject to the limit of the indemnity stated on the policy. The amount is usually the value of the property in question, the mortgage being obtained or the gross development value of that site. The policies are usually always stated as successors in title policies and therefore future owners, lenders, licensees or tenants will have the benefit of such policies without the need of notification to the insurer.
When obtaining an indemnity insurance quote, the insurer may raise certain items that need to be satisfied and add to the policy certain conditions, for example to provide planning documentation, enquire with the Council as to objections during the planning process, swear a Statutory Declaration to confirm use of the right of way or not to make any alterations to the property for at least a twelve month period.
An indemnity policy is a very good way of allowing us to move forward with a simple purchase of matters without such there would be invariable many stalemate positions where one party could not proceed.
Sherrards’ head of international and litigation, Paul Marmor, who is also an Officer with the Law firm management committee of the International Bar Association, has moderated a Webinar for the IBA on Why General Counsel and Law firms work with law Firm Directories with a panel including Janet Mcarthy Group Legal Director BUPA, Matt Wilson Associate General Counsel EMEA Uber, David Burgess Publishing Director Legal 500 and Melissa Davis managing director MD Communications. With over 850 registrants from 80+ countries this was a truly international event.
The IBA’s Law Firm Management Committee recently presented a webinar on the growing role that Legal Directories are playing in the legal profession across the globe focussing on why General Counsel (GCs) and law firms work with the legal directories. This is the third instalment in a box set series of the growing influence of legal directions in the legal industry across the globe.
The webinar can be viewed here and below is a detailed summary for readers preferring something to read in black and white.
Moderated by Paul Marmor LFMC Co-Outreach and Education Officer and Head of Litigation at Sherrards Solicitors, the discussion touched on diversity within the sector, improving engagement with GCs and clients, and the benefits of legal directories.
Sometimes considered an unnecessary nuisance, presumably due to the submission process, legal directories are in reality a remarkably valuable resource. Janet McCarthy explained how they can come into their own to help supplement research which can be useful in the context of entering new markets where it can be difficult, on occasion, to access material about firms; she explained that “The research they (the directories) put into independently assess and value…the numerous campaigns and pitches law firms can be an additional reason to use them as a further source of information to corroborate our findings”.
With a previous stint at Arsenal Football Club, though disappointingly not on the pitch, and now as Associate General Counsel for Uber EMEA, Matt Wilson reiterated this view. Due to the nature of the industry, where there are new developments and challenges constantly arising, there is a need for strong external players that can react to any number of issues faced by the business. He explained that “Using the directories is…incredibly valuable, especially when we are looking at markets that are less familiar to us, including some of the markets in the developing world”. The vetting done by the directories helps GCs and clients to gain a sound understanding of suitable firms that have the necessary background and skillset to provide effective solutions for the matter at hand.
Diversity in the legal sector
David Burgess, noted however, that in recent years there has been a shift away from the traditional approach of solely looking at practice areas and client base with diversity becoming an area of focus. “We want to look at what firms are doing to actually improve their diversity and inclusion policies and… to make their law firms a more inclusive place”, he commented amid an explanation of how The Legal 500 is pushing firms towards achieving a fairer balance, in terms of gender for instance, as well as ensuring that talented individuals are better recognised for their work. There is undoubtedly more that directories can do to encourage diversity and inclusion in the sector and David welcomed ideas from attendees to the chat, and more widely, on how to improve further.
Inviting questions from the audience during the webinar, the speakers were asked whether a diversity requirement would work as a pass/fail criterion in a tender – in short, the consensus was that such a feature would in fact function as a deciding factor where competency between competing firms is of the highest level. David notably mentioned that the definition of diversity and inclusion, however, is not consistent across regions as is the case with the US and Asia where requirements of this kind are measured in varying ways.
Matt explained that “One of the reasons why we [Uber] value diversity so much is because it gives us that diversity of thought, background and perspective that allows us to make better decisions”. By working with a diverse team in terms of gender, ethnicity and even experience, the customer base is better represented. Law firms that therefore showcase diversity and inclusion are more attractive to GCs and clients as they are able to demonstrate a better understanding and awareness of the changing market.
Janet agreed adding that utilising “Diversity to solve complex legal problems is consistent with the values and ethos of Bupa’,” and undoubtedly those of many other businesses; the profiling of firms by directories is useful as it provides a good indicator of firms’ appreciation of the modern world as well as the needs of clients. The way in which information is presented by legal directories is key then, as acknowledged by David. He reassured that The Legal 500 was looking at how to “incorporate diversity and inclusion into the rankings in a meaningful way” so that GCs and clients can truly see how firms are actively improving diversity by using their platform and through introducing new policies.
Improving submissions and engagement
Sound submissions to legal directories are of the utmost importance – firms must ensure that the information provided not only evidences all their strengths but is also up-to-date and accurate. David commented that the process is “a fantastic opportunity to do an internal audit” and advised that firms treat the directories as potential clients for whom they need to provide a 30 second overview. He suggested firms ask themselves:
How can we get across what we do differently?
What do we have to offer the client?
How do we understand the client’s business?
What have we done in the last 12 or so months that can help the client in a way that their current firms cannot?
Melissa Davis, Managing Director of legal PR agency MD Communications, emphasised the value of reliable references. She explained that referees are crucial in influencing rankings and so it is essential that they are firstly, available and happy to provide feedback to directories and secondly, that there is an ongoing working relationship with them. There is little worth in putting forward names if there has been minimal or no interaction with the client in the last year as any commentary from them is unlikely to provide a true picture of the firm’s current position and ability. Time should therefore be taken to select appropriate referees to best support the submission for both team and named indviduals, and to avoid referees being duplicated across departments within the same firm.
A collective point of frustration among the GCs that firms should take note of was the lack of advance warning before their names are given to directories for references. As a matter of courtesy, firms should strive to contact GCs and clients beforehand to acquire their consent; not only does this demonstrate a level of respect and professionalism, but it also helps to maintain that all important working relationship for the future.
Benefits of legal directories
The submission process is often perceived as lengthy, but ultimately the benefits associated with legal directories are worth it. Janet remarked early on in the webinar that not only do the directories save GCs from having to independently research firms, they also function as a reliable tracking tool for any changes within firms.
Aside from profiling, the rankings awarded by legal directories are considered an excellent guide for GCs and clients in assessing the best suited firm, but there are also advantages for the firms themselves. Naturally, how the ranking is used is up to the firm whether referenced in email signatures, in tenders or however else, but Paul expressed his view that that rankings are especially helpful for recruitment, retention and staff morale in a crowded market in the quest for good talent.
Matt added, in response to a question from an attendee of the chat, that the rankings provide a benchmark when receiving advice from a number of firms and also, in ensuring that the firm in question is best placed to provide the necessary advice. As global markets evolve, and new areas of specialism appear, he appreciates honesty about capability. Although directories provide incredibly valuable insight into a firm, it is far better for a firm to be candid about whether their practitioners have the necessary expertise as getting caught out can only have detrimental consequences.
Key lessons to take home
Janet: Directories are really useful to GCs and if they are not already being utilised, they should be! It is important that there is an “alignment of shared values and purpose” between firms and GCs and to approach business with the same set of values – “if you can get that trust element right, then you’ve done extremely well to building a long-term sustainable relationship”.
Matt: GCs rely on directories as a vetting tool, especially in industries that are rapidly expanding; the information provided helps to benchmark when reviewing, from a panel for instance, and get a reliable overview of a particular firm. Aside from this, firms should bear in mind that communication and engagement is key – GCs are usually happy to feedback to directories where a firm has performed well, but advance warning is inevitably preferred for a more favourable reference.
Melissa: Directories and the rankings they award can be indicative of performance, but also can help firms themselves in terms of recruitment and retention so it is beneficial to be proactive – not only do submissions need to be supported by strong references, but information in the public domain should be kept updated to allow researchers for the directories to get a better idea of the firm as a whole.
David: Directories are very “plugged into the market’” and there are constant conversations with GCs about what firms are doing so there should be real regard for the overall culture and attitude that may be perceived externally – there has been a shift away from focussing only on practice areas so firms must be able to demonstrate their awareness of the changing world by continuing to interact regularly with clients and GCs.
As a final note, the IBA Annual Conference is set to take place in Seoul later this year. Running from 22-27 September, the conference is a great opportunity to join the debate on the future of law and build invaluable connections with leading international practitioners.
For more information on the conference, and to become a member of the IBA, click here.
The IBA’s Law Firm Management Committee will be holding its own open forum in Seoul on 24th September so please do join us there, or alternatively contact Hanim Hamzah to get involved with the committee.
To view the previous two webinars on legal directories, follow:
Part 1: How does one get into the directories?- click here.
Part 2: Once ranked how does a firm and/or an individual make something of their ranking? – click here.
Part 3: Why do General Counsel and Law firms work with law Firm Directories – click here.
If you would like to get involved in this webinar programme, contact Paul Marmor.
Authors of this article: Paul Marmor & Sohini Saujani of Sherrards Solicitors.
The recent case of Sebastiampillai v Parr acts as a reminder that where there is a change of landlord, the new landlord must serve fresh prescribed information on the tenant.
In this case, the tenant had been in the property since 2007 and had entered into a number of fixed term tenancies with the landlord. The landlord complied with the deposit protection requirements. In July 2014, the property was sold subject to the tenancy and the deposit was transferred to the new buyer/landlord. The fixed term tenancy came to an end in May 2015 and the tenant continued to occupy under a statutory periodic tenancy.
Some three years later, the new landlord served the tenant with a section 21 notice of possession. The tenant successfully appealed the possession order on the basis that the new landlord did not comply with the deposit protection requirements. The deposit had been transferred to them but was not placed in a deposit protection scheme within the strict 30 day timescale. The judge held that the legislation is clear and did require the new landlord to serve new prescribed information on the tenant. Failure to do this meant that the section 21 notice was invalid.
The case serves as a reminder that compliance by the previous landlord does not excuse an incoming landlord from the deposit protection requirements and is also a warning to buyer’s solicitors to remind the buyer of their obligations as a landlord.
Failure to do so means a landlord is prevented from evicting the tenant using the ‘no fault’ section 21 process and furthermore can expose the landlord to a fine.
Paul Marmor discusses with Diana Bentley the benefits and issues of developing an international legal practice for Lexis Nexis and considers:
Why should firms consider adding another dimension to the practice by gaining expertise in another country and what benefits would this bring?
How can a firm assess opportunities for an international practice and what risks and opportunities should they be aware of?
What are some different ways in which a firm can build a practice in this way and what are some options to do this? Eg bringing in specialists from other jurisdictions into your current office(s), by expanding your own law firm into another country, by merging with another law firm with presence in the market you’re interested in?
What are some key challenges of managing an international practice? Eg regulatory, financial and building up a client base etc.
What do you predict the impact of Brexit will be for any UK firms wishing to expand to another country?
On 1 June 2019 the Tenant Fees Act 2019 came into force banning letting fees in England. Tenancy renewals, reference and administration fees will be prohibited under this law and are now to be covered by the Landlord on all tenancies created on or after 1 June 2019 in the private rented sector.
The Act also prohibits any need for the tenant to enter into a contract with a third party for the provision of services (with the exception of utilities or communication services), for insurance or to make a loan to any person in connection with the tenancy.
The aim of the Government is to make a fairer market place and prevent unfair practices of landlords and letting agents.
Any payment made by the tenant must be a “permitted payment” contained within Schedule 1 of the Tenant Fees Act 2019. The following payments are permitted under the TFA 2019:
A refundable tenancy deposit or holding deposit;
Payments to change a tenancy;
Payments associated with early termination of a tenancy;
Payments in respect of utilities, communication services, TV licence and council tax;
Any payments required by the landlord, letting agent or licensor, other than those listed above, will constitute a prohibited payment under the TFA 2019, and include:
Fees for professional cleaning;
Credit check fees;
Tenancy set up fees;
Requiring payments to third parties, the entering into a contract of insurance or the provision of a service from a third party;
Requiring the making of a loan to a person in connection with the tenancy agreement.
The Act also introduces a cap for tenancy deposits. If the annual rent is less than £50,000.00, only 5 weeks rent can be collected and where the annual rent is over £50,000.00, only 6 weeks rent can be collected.
A reminder that Assured Shorthold Tenancies include those rents that are less than £100,000 per annum and are to an individual and also includes student tenancies, licences but not long leases.
Essentially, this means payments such as credit checking fees, inventory fees and professional cleaning services are now not permitted to be re-charged to the tenant.
Trading Standards will enforce the Act together with local councils and the sanctions for non-compliance is a fine of up to £5,000.00 and criminal sanctions may be imposed. Landlords will also be prohibited from serving a valid section 21 notice under the Housing Act 1988 to obtain vacant possession of a property whilst there are breaches of the Tenant Fees Act 2019.
All residential landlords must make sure precedents are up to date and compliant with the new letting laws.
Never underestimate the importance of carrying out sufficient investigations when purchasing a property. The term ‘Caveat Emptor’ is still relied on today, and places onus on the buyer to find out if there are any physical defects or legal issues relating to the property. Checks should include a review of the title, planning history and the state and condition of the building. A full investigation must be carried out once contracts are exchanged (save for exceptional circumstances), there will be no recourse by the buyer resulting in a lost deposit if the decision is made not to proceed.
Make sure you identify issues as early as possible before a binding contract is in place. Allow your lawyer to investigate issues thoroughly, exchange may be delayed, but it is better to be aware of issues with the property than be liable for significant contractual disputes and a reduction in property value.
Sellers creating a sales pack must remember to include as much information as possible and any issues identified at an early stage.
In order to speed up any property transaction planning from the outset is key.
Have you lived in your home for a number of years and are now thinking of downsizing to somewhere smaller or more manageable? Although the process has not changed, it is always sensible to be one step ahead of a buyer’s lawyer, particularly if you’d like a quick and stress-free move.
Instructing a lawyer is the first port of call and it is always good to do so in advance of the property being marketed with an estate agent. This will allow time to iron out any issues and pre-empt all those questions that a prudent buyer’s lawyer will raise.
Potential issues that may arise include:
If the land has not already been compulsory registered, then it may continue to be unregistered at the Land Registry. You will need to dig out your original title deeds for an application to be made. As most land is now registered, it may be worth asking your lawyer to register it at the Land Registry for ease of dealing with it moving forward.
Where the property is registered, you should check with your lawyer for any entries on the title. If there are satisfied mortgages which have long since been redeemed, then you will need to contact the lender to ask them to notify the Land Registry or provide a form of discharge for your lawyer to send to the Land Registry on your behalf.
Where you have carried out works to the property, you will need to produce various warranties and guarantees if they are still in date, along with building control completion certificates for new windows and planning permissions obtained at the time. Often duplicate information can be obtained from the council and duplicate FENSA certificates for new windows. However, you may want to draw your lawyer’s attention to these items so appropriate investigation can be made.
Where the property is leasehold, you should pull together your ground rent and service charge payments, minutes of previous meetings with the management companies and contact details as to where the management pack can be obtained.
Where there are rent charges demanded or where the property lies upon a freehold management estate, then enquiries will need to be raised and evidence of payments obtained in the form of receipts.
There may be requirements for statutory declarations to be made as to use of the property or indeed parcels of land which are not in your ownership. It is sensible to draft these in advance or obtain indemnity insurance quotes for a prospective buyer.
Armed with the above, a full disclosure can be made to the buyer’s lawyer at the outset with no hidden difficulties arising at a later date to cause a buyer to withdraw. We are facing a particularly difficult market at present so anything you can do to improve your chances of a successful sale are well worth the effort.
As technology continues to break down the old ways of working, more and more businesses are encouraging their employees to work from home. The Government is equally enthusiastic and is looking to support the move with new legislation.
Most residential leases restrict the property to being used only as a private dwelling and many freehold titles contain similar restrictions on business use.
There are usually express restrictions contained within residential leases preventing a tenant from using the property for commercial purposes. As a result, most occupiers of a residential block of flats will be in breach of their lease or tenancy agreement if they work from home.
A new concept of ‘home businesses’ has been introduced to protect those working from home from falling foul of the Landlord and Tenant Act. This allows ‘home businesses’ to be carried on from a residential dwelling as long at the tenancy relates to a home, is let as a separate dwelling to an individual tenant or tenants and is occupied as a home. Brought in by the Small Business, Enterprise and Employment Act 2015, these measures are now in force.
Thankfully, the question of proving possession of property does not often arise. When it does, it is always interesting to see the approach taken by the courts on adverse possession.
Adverse possession arises where a person who is not the legal owner to a property or piece of land can make a valid claim to it by simply taking possession for a specific period of time.
A recent example is the case of Thorpe v Frank (2019) which involved a claim for adverse possession of a paved forecourt.
Mrs Thorpe, having bought the semi-detached property in 1984, adjusted the level of a forecourt in front of the house and repaved it in 1986. She stated that the area in front of her house was paved with concrete slabbing by the previous owner, in a rectangular shape, believing the land to be hers. When the property was sold to Mrs Thorpe, she claimed no mention was made to her of any other access across the land, nor was she informed that the land belonged to the neighbours Mr and Mrs Franks. No objections were raised by Mr and Mrs Frank until Mrs Thorpe decided to enclose the paved area with a fence in 2013. The paved area was previously used as an accessway to the Frank’s property while Mrs Thorpe maintained it and used it for parking. The Court of Appeal had to decide whether Mrs Thorpe acquired the paved area by way of adverse possession nearly 30 years ago.
The Court of Appeal decided that adverse possession could be claimed since the paving was a permanent character which Mrs Thorpe paved of her own accord and so her actions were consistent with that of an occupying owner and she had taken exclusive possession over the forecourt. The fact that the fence did not go up until 2013, it appears, is not relevant to establishing possession. Fencing off land is an obvious means of showing possession but in this case making physical changes to the surface of the land was a material factor. Some may argue that it was somewhat surprising of the Franks to claim possession since they were quite happy for Mrs Thorpe to spend money on the paving and allowed her to maintain it for over three decades!
The relevant act of possession arose in 1986 and so 12 years’ possession had been established by the time the law in this area changed, in October 2003. It is now much more cumbersome to prove adverse possession due to the changes made by the Land Registration Act 2002.
The case is relevant for developers when purchasing open areas of land where the signs of encroachment are not always evident. Equally, it is important for land and property owners to protect themselves by making sure that their contact details are correct at the Land Registry and that they register for their alert system. Please refer to our helpful guide on registering with the land registry alert system .