Law Society notices

Recent items of interest from the Law Society's library

Civil procedureCivil Procedure Rules, 17th update now available from the Lord Chancellor's Department at: http://www.open.gov.uk/lcd/civil/procrules_fin/camendfr17.htm

ContractAttorney-General v Blake, The Times 3 August 2000 (HL)The Crown was entitled to unpaid royalties from a book which had been written and published in breach of a confidentiality agreement made by a former member of the Secret Intelligence Service.

Where the normal remedies of damages were inadequate for breach of contract, the court could, in exceptional cases, order the defendant to account to the plaintiff for benefits received from the breach.

Available at: http://www.the-times.co.uk/

EmploymentWaters v Commissioner of Police of the Metropolis, The Times 1 August 2000 (HL)Claims by a policewoman that the Commissioner of Police had been negligent in failing to prevent her victimisation by colleagues should not have been struck out.

Available at: http://www.the-times.co.uk/

European UnionEuropean legislation on sectors excluded from the Working Time Directive now in force as Directive 2000/34/EC.

Covers mobile workers, offshore workers and workers on board sea-going fishing vessels.

Published in the Official Journal L 195 of 1 August 2000, page 41.

InternationalThe international survey of family law: 2000 edition edited by Andrew Bainham (Family Law, 2000, ISBN 0853086346).

Covers developments since the publication of the previous survey of 1997 and changes in various jurisdictions up to the end of 1998.

Contributions are mainly from Europe as well as Africa, Asia and Australasia.

Legal aidLegal Aid (Functions) Order 2000 SI 2000: 1929Available at: http://www.hmso.gov.

uk/si/si2000/20001929.htmLegal Aid (Prescribed Panels) (Amendment) Order 2000 SI 2000: 1930Available at: http://www.hmso.gov.

uk/si/si2000/20001930.htmR v Legal Aid Board, ex parte W and others, The Independent 28 July 2000 (CA)The Court of Appeal quashed the Legal Aid Board's decision to refuse legal aid to a solicitor acting on behalf of a child in an application to terminate parental contact under section 34(4) Children Act 1989.

Legal professionAccess to Justice Act 1999 (Commencement No.

4 and Transitional Provisions) Order 2000 S.I.

2000: 1920 (C.48)Brings into force, among other provisions, on 31 July 2000, sections 37, 38 and 39, relating to rights of audience and rights to conduct litigation, and section 44, relating to barristers employed by solicitors

Local authoritiesPhelps v Hillingdon London Borough Council; Anderton v Clwd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council.

The Times 28 July 2000 (HL)Local Education Authorities could be vicariously liable for breaches of duty of care by their employees.

This could include failures by educational psychologists to diagnose dyslexic pupils and failure by teachers to provide appropriate education for pupils with special needs.

Law report available at www.the-times.co.uk

PensionsPensions law handbook 2nd ed by the Pensions Department of Nabarro Nathanson, edited by Richard Kandler and Jennifer Bell (Tolley, 2000, ISBN 1860127916).

Includes a new chapter on the pensions aspects of commercial transactions.

Shelved in the library at bookcase 20E.

PlanningA National Planning Policy Database can be found on the Department of Environment, Transport and the Regions' web site at www.planning.detr.gov.uk.

A consolidated list of statements of national planning policy including minerals, regional and planning policy guidance notes and statements of planning policy made to Parliament.

Notes of amendments are included.

SolicitorsSuccessful law firm management: a practical guide to solving the problems of managing a law firm by Brian Allingham and Douglas Mill (W Green/Sweet& Maxwell, 2000, ISBN 041401314X).

A clearly laid out publication covering areas such as managing the firm and managing partners.

Shelved in the library at bookcase 23A.

This list has been compiled by the Law Society's Library.

For further information about items or other legal research enquiries please telephone the Library's Enquiry Service 0870 606 2511 or e-mail Lib-Enq@lawsociety.org.uk.

Copies of most items are available via the Library's charged document delivery service: a photocopying application form is available on the Library's web page at www.library.lawsociety.org.uk

CostsD'Abo v Paget and Others (No.2), The Times, 10 August 2000 (ChD).

A successful claimant and beneficiary under a trust was not entitled to costs in respect of trust litigation out of the trust fund.

Available at: http://www.the-times.co.uk/

EmploymentNational Minimum Wage Regulations 1999 (Amendment) Regulations 2000, SI 2000: 1989.

Raises the national minimum wage from 3.60 to 3.70 and makes a number of other amendment.

Comes into force1 October 2000.Available at: http://www.legislation.hmso.gov.uk/stat.htm

European lawEuropean Directive 2000/35/EC on late payment in commercial transaction came into force on8 August 2000.

Available in the Official Journal L 200, 8.8.2000 p.35.and at http://europa.eu.int/eur-lex/en/oj/2000/l_20020000808en.html

Human rightsRegulation of Investigatory Powers Act 2000 Ch.

23.Received Royal Assent on 28 July 2000 and was published at the beginning of August.

Will come into force on such day as the Secretary of State may by order appoint.

Inheritance taxThe Capital Taxes Office has published some inheritance tax forms which are available on the Inland Revenue Web site at: http://www.inlandrevenue.gov.uk/cto/index.htm

IrelandThe Law on Solicitors in Ireland by Patrick O'Callaghan (Butterworths, 2000, ISBN 1854758462).

This book covers all aspects of solicitors in Ireland.

Shelved in the library at bookcase 189B.

Mental healthCourt of Protection (Amendment) Rules 2000, SI 2000: 2025.Amends the Court of Protection Rules 1994 in relation to fees.Available at: http://www.legislation.hmso.gov.uk/stat.htm

Professional negligenceMichael Hyde and Associates Ltd v J D Williams and Co Ltd, The Times, 4 August 2000 (CA) Where a profession embraced different views of acceptable practice, competence should be measured by the lowest acceptable standard.

Available at: http://www.the-times.co.uk/

ProvocationR v Smith (Morgan James), The Times, 4 August 2000 (HL)Clarification given by the House of Lords on establishing the defence of provocation on a murder

Mortgage lending businesses

A joint statement from the Office for the Supervision of Solicitors and the Law Society's professional ethics department

The Office for the Supervision of Solicitors has recently investigated schemes in which solicitors attracted funds from the public to be pooled and then lent on to borrowers, the loans being secured upon property.

Firms have been subject to intervention and their professional conduct is likely to be the subject of proceedings before the Solicitors Disciplinary Tribunal.

The OSS has serious concerns about solicitor-operated 'investment schemes' of this nature (see [2000] Gazette, 20 July, 16).

In particular, where clients' funds, under the control of a solicitor, are pooled and then lent to a borrower, it is likely that the arrangement will constitute a collective investment scheme under section 75 of the Financial Services Act 1986.

Unregulated collective investment schemes can only be operated by solicitors who hold a category 2 investment business certificate allowing them to carry out discrete investment business (DIB).

Solicitors conducting DIB without the necessary certificate are in breach of the Solicitors' Investment Business Rules 1995.

The rules prohibit solicitors from managing or operating regulated collective investment schemes.

These schemes can give rise to a lack of clarity as to the question of who is the client.

Any solicitor who acts for a client who is lending money to be secured on property must ensure that the client's interests are as fully protected as in any other retainer.

Conflicts of interest may arise either because the solicitors also appear to be acting for the borrower or because the solicitor has a direct financial interest in the transaction.

If the solicitor does have a financial benefit then clients must be advised to take independent advice.

Practitioners are also reminded that the Solicitors' Introduction and Referral Code1990 prohibits the payment of introduction fees to intermediaries for the introduction of clients.

If financing or arrangement fees are received or solicitors obtain any commission or other benefit, directly or indirectly, from a transaction in which they act for a client, they must either pay or credit the money to the client or make full disclosure and obtain the client's consent to keep the money.Both the law and Law Society practice rule 10 prevent solicitors from taking a secret profit - see annex 14G in the Guide to the Professional Conduct of Solicitors (1999).

It is possible that some of these schemes are promoted by third parties who realise that a selling feature of such 'investment schemes' is the involvement of the solicitor as this lends credibility to the scheme.

Solicitors may contact professional ethics for further guidance, tel: 0870 6062577.

Non-constituency seat on the Law Society Council

There are 75 Law Society Council members, 61 of whom represent geographical constituencies.

The other 14 members are elected by the Council to fill non-constituency seats.

The Council members, both constituency and non-constituency, serve for four years, and the terms of office are arranged to fall vacant by rotation.

There is a vacancy on the Council for the financial services and investment management non constituency seat.

Applicants should be solicitors and members of the Law Society.

The successful candidate will be expected to take an active part in all Council business and to serve on a main Council committee.

Applicants should be able to demonstrate their own experience in this area as well as a wider appreciation of the profession's involvement in providing financial service to clients.

For additional information, contact Lisa Pepper on 020 7316 5660 or fax 020 7320 5759.

Nominations should be sent to Lisa Pepper, the Law Society, Corporate Administration, 113 Chancery Lane, London, WC2A 1PL, not later than 22 September 2000.

It is expected that shortlisted candidates will be invited for interview during the week commencing 2 October 2000.

The successful candidate will be elected by the Council to serve until 2004.