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Legal

Your legal eagle could be a snake in the grass

Ian Lithman of Lithman & Co is a solicitor member of the BMF and the YHA as well as a subscriber to the YBDSA.

As a specialist in leisure marine, business transfer, commercial conveyancing and commercial litigation, he says a mass of new legislation is about to affect the marine industry.

Not since 1925 have the legal profession and the client been assailed by such a volume of legislation that has changed the very nature of the work under - taken by and the relationship between a solicitor and his client.

The stated intention of much of this change is to save costs, to pave the way for a paperless administration and to allow for electronic transactions and proceedings.

The first impact was the introduction of the Civil Procedure Rules, which swept away the County Court and Supreme Court Rules making one glove fit both hands.

The intention is to force the parties into a settlement before proceedings are issued and to penalise the party that does not make the effort.

For the first time as a cost saving exercise the claimant can make an offer. The court can twist the parties' arms toward mediation and the "pay up or else" letter has been replaced by a protocol that requires full disclosure in advance and time to respond before commencing proceedings.

Throughout proceedings each party and the court have to be told what costs are already incurred and what the final cost is likely to be.

There was the introduction of a new type of holding in land called Commonhold for new developments, to which was tacked on important changes for leaseholders having the right to acquire the freehold or new long leases of residential property, including for the first time residential investment properties. The intent being to get rid of long leaseholds for residential flats and houses.

Then came the Land Registry revolution where options to purchase and leases for, or having more than, seven years unexpired, or to take effect in the future now have to be registered.

Deeds destroyed Certificates of Title disappear, original deeds are destroyed and proprietors' addresses need to be kept up to date at all times.

Following that Stamp Duty on documents goes out of the window and is replaced by Stamp Duty Land Tax. No longer is one sheet of paper completed and signed by the solicitor adequate for the revenue which now requires a form of seven pages and 70 questions that the client has to answer and sign, or a two page document if there is no duty payable.

As an aside I am told the Land Registry was not held in the loop by the revenue, so when the new forms were designed they included obsolete stamp duty certificates.

Also when the revenue brought in the new Land Tax, the lady who was to add to the website a calculator for stamp duty on Leases was on pregnancy leave and that was why it did not immediately appear for use.

There are now changes proposed for business tenancies this spring affecting contracting out, failure to respond to notices, inclusion of offered terms and the abolition of some counter-notices.

The execution of deeds by companies will shortly be the subject of change and we can also look forward to the sellers' pack for residential conveyancing, which some of us believe will be counter productive and very costly.

Loss of confidentiality The most serious matter is the loss of client confidentiality and the prospect of a long jail term for failing to report a client, and a shorter one for tipping off, where the professional has reason to suspect the client of having received proceeds of crime.

The professional can no longer turn a deaf ear to what the client tells him or he discovers in the course of his work for the client, unless it is in acting in defence of a client accused of a crime.

The amount involved is immaterial and as little as £10.00 gained in cheating the DSS would have to be reported.

Divorce lawyers have what they see as an impossible task when examining financial records, where disclosure will damage the prospects of both parties and their children.

The same is the case for personal injury lawyers examining accounts to calculate loss of earnings.

The above is just a taste of what has and is about to happen. It is said that change is inevitable. It is also said that the law is an ass. Maybe both are true.

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Seawork International 2009 - 23rd to 25th June 2009