Legal Updates

This month we will review what information a property seller should disclose as part of a conveyancing transaction and consider a recent case where a seller has been accused of misleading a buyer by saying nothing.

The starting point in any sale of land is to apply the contractual principle of caveat emptor or buyer beware. However, in practice it is rarely this simple. As part of a normal conveyancing transaction, a seller would complete a property information form in order to give a buyer detailed information about a property. The form has several versions, which cover sales of freeholds, leaseholds and new build residential properties. All of these forms have been designed by the Law Society as part of the national conveyancing protocol used in the majority of transactions in England and Wales.

This month we will consider the Queen’s speech which took place towards the end of 2019 and what new laws we might expect to see in 2020.

The Queen usually only attends Parliament on ceremonial occasions. Last year, she was present at the State Opening of Parliament, where the start of the parliamentary year was marked. At the state opening, the Queen read out her speech from the throne in the House of Lords Chamber. To be more precise, the speech was not actually the Queen’s own words; it had been prepared for her by the Prime Minister, Boris Johnson. The Queen’s speech normally happens once a year, but the last one happened in June 2017 because the Prime Minister at that time, Theresa May, wanted a two-year parliamentary session.

The law of contract has slowly been developing in line with changes in the way people enter into contracts and use technology to communicate. One recent example of these changes is how the law treats a contract made by email. Some have argued that an exchange of informal emails would not be enough to create a formal legal relationship, but they are sadly mistaken based on recent case law developments.

On occasion, a solicitor’s firm may find itself in dispute with its own client. This can happen, say, in a case where there is a disagreement over the legal bill or when a client wishes to change advisors. In these types of situations, a firm may find a client demanding that “their” file be released but the firm is reluctant to do so immediately (particularly where a legal bill is in dispute). In cases such as these it may be necessary to consider who owns the file, what the contract between the parties says, and what personal data a client may be entitled to.

Ownership – When a solicitor acts in a case, the documents which are created fall into two categories:  

a) Those where the solicitor is acting as a professional advisor; and

b) Those where the solicitor is acting as an agent.

The Law Society’s Conveyancing Protocol (usually just referred to as the “protocol”) first came into effect on 1 April 2011. It was replaced on 19 August 2019 with an amended version.

The original protocol was created by the Law Society to improve how conveyancing transactions were dealt with. The protocol provided a framework for firms to follow and a detailed list of ‘dos and don’ts’. Although the protocol has been described by some as ‘conveyancing by numbers’ it has brought a uniform structure to conveyancing transactions. Essentially the protocol made most firms ‘sing from the same hymn sheet’. The procedures the protocol set out are intended to ensure that clients are treated fairly and are protected, and that the entire process is dealt with more efficiently.

The protocol splits transactions into six stages:

The law in England and Wales dealing with wills dates back to Victorian times. The current rules are based on the Wills Act 1837, while the tests to see if someone has the capacity to make a will were set out in a case from 1870.

The Law Commission has been consulting on several proposals to reform the law on wills. It is expected to report soon on proposals to modernise the law, which include:

• Changes to the test for capacity to make a will, which take into account modern medicine’s understanding of conditions like dementia;
• Statutory guidance for doctors when assessing if someone has the capacity to make a will; and
• New rules protecting someone making a will from undue influence. 

On the Legal Secretaries Diploma course, one of the first topics that is studied is judicial review. This is a process that allows the courts to review the legality of actions taken by public authorities. Although nearly 2,500 judicial review cases reach the court every year, there are only a handful which really highlight how the process protects the rights of the individual against the state. This month we are considering one of these rare examples with the case brought by Ed Bridges, who has taken the South Wales police to court for their use of facial recognition technology.

One of the areas studied within ILSPA’s Legal Secretaries Diploma course is the law of negligence. This month we will be considering how the law in this area has developed and highlight some recent changes to the law on when a duty of care is owed.  

 The 1930s approach – “Love thy neighbour”  

Ever since the case of Donoghue v Stevenson in 1932 created the law of negligence, the test to prove that a defendant has been negligent has been a simple 3-part formula:-  

1) The claimant must be owed a duty;  

2) That duty must be breached; and  

3) The breach must cause the damage.  

This test is sometimes referred to as the “neighbour principle” and its creator, Lord Atkin, broadly based the principle on the biblical concept of treating your neighbour as you would like to be treated.  

We last reported on the topic of no-fault divorce in October of last year following the sad case of Tini Owens. The case highlighted a longstanding problem with divorce law which forces parties to find blame if they want to guarantee that the court can give permission for a divorce. Mrs Owens found herself in the ludicrous situation of trying to leave a loveless marriage described as “wretched” by one judge, however it was not found to be  wretched enough to satisfy the irretrievable breakdown requirement of current divorce legislation.  

Last autumn we considered the impact of a 2018 ruling by the Supreme Court about the state of relationships in Britain. Specifically we reviewed how the law on civil partnerships was to be changed to allow couples of the opposite sex who did not wish to get married to have some legal recognition. In the case, the Supreme Court made a declaration that the current law was not compatible with Human Rights legislation. As a result, the government confirmed that it would change the law to allow any couple to register as civil partners. Unfortunately the rules contained in the Civil Partnership Act 2004 (CPA 2004) have not yet been changed.