By statutory instrument the UK government quietly brought in a major change to the costs & damages regime for England & Wales. This will come into effect for all cases issued in the courts from 6th April 2023.
The LS Gazette reports that the government has quietly changed the CPR at the beginning of February to allow the recovery by Defendants of costs from the Claimant’s settlement. This reverses the court ruling in Cartwright v Ho. Defendants will be able to set off costs not only against orders but also deemed orders and agreements to pay against damages as well as claimant costs. This change will apply to all claims issued after 6th April 2023.
So, Claimants will want to ensure they issue as much as they can before 6.4.23. Defendants may want to reassess how they approach Part 36 offers. ATE insurers will want to reassess risk. All will need to ensure that they revise wording of advice to clients on costs.
The Government's financial sanctions regime now includes a ban on providing trust services to those connected with Russia.
The UK regime is operated by the Office of Financial Sanctions Implementation (OFSI). The measures are imposed by the Government to achieve specific foreign policy or national security objectives.
There have been a number of changes to the regime - which is underpinned by several pieces of legislation - in recent times. The SRA have already published guidance for firms to make sure they understand their obligations.
The Government has now made amendments introducing a ban on providing trust services to those connected to Russia (unless the services were provided immediately prior to the regulations coming into force), or to a designated person. The Russia (Sanctions) (EU Exit) (Amendment) (No. 17) Regulations 2022 came into force on 16 December 2022.
Paul Philip, SRA Chief Executive, said: 'Strengthening the financial sanctions regime is an important part of the government's response to war in Europe and law firms have a key role to play. The sanctions regime applies to all firms that provide legal services, not just those that are captured by the anti-money laundering regulations.
'This is a complex and fast-moving situation which is why we published our initial guidance last month. Firms would do well to sign up to alerts from OFSI to keep themselves up to date and also undertake appropriate checks on clients and potential clients.'
The amendment defines 'trust services' as:
A person is considered to be 'connected with Russia' is defined at regulation 19(A)2. Broadly, an individual is considered to be connected with Russia if they normally live in or are located in Russia. A person other than an individual is connected with Russia if it is incorporated/constituted under Russian law or domiciled in Russia. Further information is available in regulation 19(A)2.
OFSI will consider granting licences for trust work if that work falls within one of the following categories:
OFSI has published guidance on the sanctions legislation, including this amendment and updated their guidance on Russia.
Training on compliance with the Sanctions Regime
We provide remote training. Follow this link for more information or fill in the form below to get in touch. https://hunningsconsultancy.co.uk/sanctions-regime-training/
There are 11 of us now in the team - we'll run through the capabilities. Ingemar is the lead consultant & founder covering most aspects, running the company and am the subject expert on LEAP. He is ably supported by Brenda who in addition controls finance, does a lot of admin & prep work. We have an expert in AML & Sanctions in the legal sector, also providing training, who is also our expert on SRA Code of Conduct, SRA Guidelines, Transparency Rules & writes & maintains our OPM. We have 2 experts on the SRA Accounts Rules, law firm benchmarking & anything to do with law firm finance. They also provide training. We have 2 experts on Data Protection, whom we also hire out as DPO as a service to law firms but also other business in the UK & abroad. They also provide training & general support. We have 2 experts in Access Proclaim who provide assistance to firms with workflows, screens, reporting & also in building integrations with other software. We have an expert in CLC law firms & regulation. Finally, we also have an expert in law firm strategy - an ex managing partner of a top 10 UK law firm.
The SRA has published guidance for the firms and solicitors it regulates on how they should supervise staff.
They have written:
"This guidance should help regulated individuals and law firms’ managers and senior staff understand what we expect them to do to meet the current statutory and regulatory requirements on supervision.
The guidance should help legal services providers to meet the requirements in our Standards and Regulations, and to comply with other relevant legal and regulatory requirements on supervision. Firms seeking our authorisation should find the guidance helpful in setting out what we expect from them in terms of arranging adequate and effective supervision at the point of authorisation and beyond.
Effective supervision is both a regulatory requirement and good practice in the delivery of services to clients. While negligence in the delivery of legal services is not itself always proof of a failure in supervision, effective supervision has a role to play in managing negligence risks, as well as other regulatory risks."
Here is a link to the full text of the Guidance: https://www.sra.org.uk/solicitors/guidance/effective-supervision-guidance?s=01
We suspect that the SRA will use this as a benchmark when reviewing firms, considering complaints and disciplinary issues. We recommend that firms review their policies & practice in the light of this guidance.
We Can Help
Please feel free to contact us if you would like assistance with reviewing policies & practice or indeed in writing policies if you do not have them. We provide a lot of compliance support for SRA & CLC regulated firms, in-house legal and other businesses. Please see the 'Services' drop down menu at the top of this page. We invite you to fill in the form, which you will find on every page on this site, to make further enquiries.
One of our clients for whom we confirmed her QWE has kindly send us her explanation for how she applied for exemption from the SQE1 exam via her 'MySRA' profile on the SRA website.
You may access a downloadable guide we have created from this here: https://hunningsconsultancy.co.uk/wp-content/uploads/2022/12/How-to-apply-for-SQE1-Exemption-if-you-have-passed-the-LPC.pdf
(Please note - you have until 31 December 2032 to qualify as a solicitor under the LPC route. However, obtaining a Training Contract is likely to become increasingly difficult as employers switch over to facilitating qualification through the SQE route.)
QWE Confirmation
If you are seeking someone external to your business to confirm your QWE - we can help. Indeed we have helped well over 40 aspiring solicitors so far by confirming their QWE to the SRA. Our lead consultant, Ingemar Hunnings, always offers a free, no obligation zoom first to examine if it is appropriate and to explain the process. Fill in the form below to get in touch. Follow this link to read more about this service: https://hunningsconsultancy.co.uk/external-qwe-certification-service-2/
The SRA has now published guidance for the firms it regulates. Find the link below.
https://www.sra.org.uk/solicitors/guidance/financial-sanctions-regime/
Training
Should you or your firm want training on the Sanctions regime, we can help. Please find a link to our training service here: https://hunningsconsultancy.co.uk/sanctions-regime-training/
Given that this is now a hot topic with a lot of change and expansion and that breach has moved to a strict liability approach, we have put together compliance support training, as we think this is something be of benefit to the legal profession. Here is a link to the service: https://hunningsconsultancy.co.uk/sanctions-regime-training/
Written by our lead consultant: Ingemar Hunnings
I’ve been asked to write an article giving some guidance for foreign qualified lawyers who would like to cross-qualify as a Solicitor of England & Wales. What I write will apply in general to anyone who is classed as a ‘foreign qualified lawyer’ i.e. qualified outside of the legal jurisdiction of England and Wales (and actually applies to barristers in England & Wales as well). I should state first of all that I am not part of the SRA and what I write is from my research, reading their website and questions put to them. The final arbiter will always be the SRA and the best email to use to ask them is: [email protected]. What is written below is my current understanding at the time written.
The way that people qualify as a solicitor of England & Wales has changed. In September 2021 the SRA (Solicitors Regulation Authority, which is the regulatory body for solicitors in England & Wales) brought in the SQE route for qualification to replace the LPC route. We are now in the transition stage between the 2 routes. https://www.sra.org.uk/become-solicitor/legal-practice-course-route/transitional-arrangements/ Basically if you had not started your degree by 22.9.21 you cannot use the LPC route to qualify, but have to use the SQE route.
Foreign qualified lawyers have been using several pathways to qualify as a solicitor and clarity is only gradually emerging as to what they do to complete that path during these transition times. So, I shall set out what the requirements are for the SQE route and then attempt to deal with the various wrinkles I’ve come across in the hope that this meets as many of your circumstances as possible. I will insert links for additional information, principally from the SRA website and our website.
I shall not go into why the SRA have changed things, other than to say that the LPC system was broken. Under the SQE the SRA, as regulator, has taken back responsibility for deciding who it says is fit to be accredited as a solicitor of England & Wales. The SRA sets the exams and is responsible for their administration (although it has delegated the running of the exams to Kaplan). Instead of different organisations setting and running the exams, under the SQE, EVERONE sits the same exams. There are 4 elements:
Foreign Qualified Lawyers – your route
I will try to give the best guidance I can below, based on my current understanding, on your route through this depending on several different circumstances.
The first thing to note is that foreign qualified lawyers are exempt from the QWE requirement. However, there is a wrinkle in a particular scenario – see below (LPC).
Secondly, the QLTS Scheme is no more. It stopped in September 2021.
The requirement for a degree or degree equivalent remains, as far as I am aware. So does the 4th element. The SRA have said that, if someone has been able to get exemption from both exams (which is unlikely) then the SRA may require the Aspiring Solicitor to undergo some further assessment to satisfy them that they have a sufficient command of the English language to safely practice as a solicitor of England & Wales (I guess Welsh would do!) – given that the SRA would not have seen that through the exams.
Exemptions from the exams
One may apply for exemptions from the exams - from both the SQE1 and or SQE2. Here is a link to an article I have written summarising my research in this area which itself has links to download the form to be submitted and also a guidance note I have written. https://hunningsconsultancy.co.uk/sqe2-exemption-for-foreign-lawyers-review-advice/
You will see that the form is quite long. Sections 1-4 need to completed in every circumstance.
SQE1 - if you want also to apply for exemption from SQE1 you need to complete sections 5 and or 6 to apply for exemption from the FLK1 and or FLK 2 parts of the SQE1 exam. They require the compilation of a large and detailed dossier of evidence to support your application to persuade the SRA that you already have the requisite knowledge in all the practice areas, experience and that the legal system in which you are qualified as a lawyer is not significantly different from that of England & Wales. These sections of the form start:
“Please tell us below how your qualification and experience are not substantially different to the FLK1 content and standard. This is so we can be sure you can practise safely in England and Wales.
You need to show us that:
In webinars I have attended the SRA have indicated that they are much less likely to grant exemption from the SQE1 than the SQE2. It appears to me that so much effort is required across so many different practice areas to successfully gain exemption that one might as well take the SQE1 exam.
SQE2 – you are much more likely to be successful with an application for exemption from the SQE2 exam. You be going to sections 7 or 8 of the form. Section 7 is to be used if you have 2 years professional legal work experience (no definition of this given), but there is no requirement I can see for this to be in England & Wales or in English or Welsh law. Section 8 is to be used if you have less than 2 years professional legal work experience. There is again a requirement to provide quite a lot of information (which I will go through in summary below), but my opinion is that this situation will be uncommon and you are better waiting until you have your 2 years professional legal work experience and then applying through section 7 above for exemption. The application is made through your ‘MySRA’ profile on the SRA website. The fee is currently £265. What you submit together with the form (and presumably proof of your qualification) will vary and I will run through below. The SRA give themselves 180 days to assess your application, although I have heard that they have taken a lot less time with many applications.
7a – if you have 2 years professional legal work experience, gained as part of your qualification – you will not need to submit anything extra. Effectively the SRA are relying upon your regulatory body.
7b - if you have 2 years professional legal work experience, gained post qualification - you need also to get a letter of reference for this work from your supervisor and a ‘certificate of good standing’ from your local legal regulatory body for you and for your referee (or equivalent for the referee if they are not a lawyer). There is guidance in our article on what needs to go into the letter of reference. We have gained clarification form the SRA as to who can provide the letter of reference: https://hunningsconsultancy.co.uk/who-can-be-a-supervisor-sqe2-exemptions-for-foreign-qualified-lawyers/ This might be of assistance if someone at the SRA takes a view that the referee needs to be a lawyer.
7c – if you have 2 years professional legal work experience, gained through a combination of both post qualification and as part of your qualification – pretty much the same as for 7b above, but obviously for a shorter period of time.
8 - you do not have 2 years professional legal work experience - you will have to fill in the table at section 8 and submit with it a dossier of supporting evidence. Hence, my suggestion that you complete your 2 years professional legal work experience.
LPC – what happens if you have actually passed your LPC (the old method of qualification as a solicitor)? If you have a training contract, you might as well finish that. If you do not, the SRA has now given clarification. Here is a link to a summary we have written: https://hunningsconsultancy.co.uk/foreign-qualified-lawyers-sqe1-exemption-if-you-have-passed-the-lpc/ In short: you will need to a) register for, sit and pass the SQE2 exam; b) prove that you passed your LPC (the SRA will ask for your LPC certificate when you apply to become a solicitor) and c) have 2 years full time equivalent QWE (Qualifying Work Experience) confirmed to the SRA by an SRA regulated solicitor (we can help as external confirming solicitors if you do not have an SRA regulated solicitor in your organisation to do the confirmation: https://hunningsconsultancy.co.uk/external-qwe-certification-service-2/)
QLTS – if you were part way through qualifying through this scheme when the SQE came in and the QLTS suspended, the SRA have recently given clarification on the route for you to qualify now. Here is a link to an article setting out that clarification: https://hunningsconsultancy.co.uk/qlts-mct-the-sqe/. In summary: If you have passed the MCT but not the OSCE you have 2 options: complete the QLTS route or move over to qualify through the SQE route.
I hope this has given some assistance in guiding you in these times of transition through from the LPC & QLTS routes to the SQE route to qualification. Feel free to contact us for such clarification as we can give, or indeed go direct to the SRA on the email at the beginning of this article.
November 2022
Ingemar Hunnings is a qualified solicitor who spent 24 years in private practice, 14 of which as an equity partner. He was head of a department of 60 litigators and was also compliance manager for that department. He now runs a management consultancy, HCL which is a one-stop-shop for business support for law firms. This includes a lot of compliance support, assistance with some case management systems (LEAP & Proclaim principally), support regarding the SQE and other general business support & consulting work. https://hunningsconsultancy.co.uk/
There has been quite some confusion for foreign qualified lawyers who were part way through qualifying as solicitors of England & Wales when the QLTS stopped when the SQE came in in September 2021. Following a request to the SRA for clarification, we are able to set out their guidance below. We hope this will be of some assistance.
The reply by the SRA to an enquiry from a foreign qualified lawyer as to how to complete the process to qualify as a solicitor of England & Wales. She had passed her MCT on the QLTS route, but not the OSCE.
“If you have completed the MCT there are 2 routes that you can consider taking:
These routes are separate and cannot be mixed. If you have passed the QLTS MCT this is not equivalent to passing the SQE1 and you will not qualify to apply for an exemption for SQE2."
QLTS Transitional Route
You can continue to qualify under the Qualified Lawyers Transfer Scheme (QLTS). If you have passed the multiple choice test (MCT). You must take and pass the SQE2. You must meet the SRA's requirements and apply for admission by 31 March 2024. [N.B. This option is now no longer available if you are not booked in for the October 2023 SQE2 exam; last date to book this was 11th September 2023]
SQE Qualified Lawyers Route
"As a qualified lawyer you will be exempt from the work experience requirement (QWE) of the SQE. We can also recognise professional qualifications and experience equivalent to the SQE1 and SQE2 in total or full components of the SQE1 and SQE2. You may wish to look at the assessment topics on the SQE website to see if they relate to your own professional and academic qualifications. This will indicate whether you may be eligible for any exemptions. Read our Application for recognition of professional qualifications and/or experience guidance. Assessment topics | SQE | Solicitors Regulation Authority SQE1 is made up of FLK1 and FLK2, SQE2 has an oral and a written assessment. Find out more about the assessment topics.
If you are already on your way to becoming a solicitor you can continue to qualify through the existing routes.”
So, in summary:
If you have passed your MCT & OSCE apply now for admission, do not delay.
If you have passed the MCT but not the OSCE
Link to the SRA page on this: https://www.sra.org.uk/become-solicitor/qualified-lawyers/qlts/started-qlts/
Link to a video about this on our YouTube channel: https://www.youtube.com/watch?v=rY2yOY3KuJ8&t=5s
QWE Confirmation
Foreign Qualified Lawyers are normally exempt from the QWE requirement (but see below). However, if you are not qualified as a lawyer you will need 2 years full time equivalent QWE (Qualifying Work Experience) to be confirmed to the SRA by an SRA regulated solicitor. Also if you are a foreign qualified lawyer who has passed the LPC and want to have this count instead of your SQE1, would will need to have your QWE confirmed. If you don't have an SRA regulated solicitor in your organisation to confirm your QWE - we can help: https://hunningsconsultancy.co.uk/external-qwe-certification-service-2/ We have done this now for over 40 people. We always off a free, no obligation zoom to talk things through beforehand.
Here is a link to the video in which the SRA feed back on the 1st SQE2 exam
https://www.sra.org.uk/sra/news/events/on-demand-events/sqe2-feedback-first-assessment/
