I have recently watched a series of programmes on the development of the English legal system presented by Harry Potter (no, not the fictional student wizard from Hogwarts, but a real Barrister who specialises in criminal defence work. ) One of the points which he made was how the adversarial system has developed in English law for deciding both criminal and civil cases – with each party being able to appoint lawyers to argue their case in court.
While we have moved away from trial by combat, I think that it has become customary to view all legal processes as in some way adversarial – a fight between two opposed parties. However it is open to question whether this is relevant for the property transfer process involved in Conveyancing. Surely in a Conveyancing transaction both parties want the same outcome – the transfer of title from the seller to the buyer.
But in my opinion too many Solicitors seem to adopt a combative stance in Conveyancing cases, which often causes delays and bad feeling. While Solicitors must represent their clients’ best interests, is this achieved by arguing about everything?
For instance, the Law Society has for many years promulgated the Standard Conditions of Sale for use in residential property contracts. Being ‘standard’ should mean that they are used in all cases, but show a document to a Solicitor and it seems a knee-jerk reaction will be for him or her to try and amend it. Consequently it has become the norm for many firms to attach numerous additional clauses amending and adding to the standard conditions when they are acting for sellers.
While no-one can object to amendments which are necessary in a particular case, why should it be thought necessary to use blanket amendments in all contracts. But doing so requires buyers’ Conveyancing Solicitors to check through these every time in case there is anything which would be prejudicial to their clients; there will then follow arguments with the sellers’ Solicitors, which only wastes time.
It is of course right and proper that a buyer’s Conveyancing Solicitor should investigate the seller’s title and raise queries if this is not in order. However many Solicitors embark on a series of totally unnecessary questions about the property – several firms use their own forms of questionnaire which merely duplicate the questions in the standard form, but insist that these are also answered irrespective of the information already given by the seller.
It is also not unknown for acrimonious relations to exist between two law firms (perhaps in the same town), so any documents drafted by one firm will automatically be amended or even rejected by the other. Does that help their unfortunate clients?
Conveyancing Quality Scheme (CQS)
As part of its Conveyancing Quality Scheme the Law Society has published a protocol setting out how a transaction should be progressed. It would be nice to think that all Conveyancing Solicitors will adopt this protocol, but its use is not mandatory, and so some firms will decline to use it.
While there is much merit in each party having their own Conveyancing Solicitor, I think that clients’ interests are much better served when firms cease to treat residential Conveyancing as if it were a form of litigation, and instead work to the common goal of achieving quick completions for their clients.