House Buyers’ Blues – This Horse Won’t Stand Still.
The ideal to which the Law of England aspires, or used to, is to be clear and understandable. A dependable and predictable framework of rules and consequences within which we can all exist and operate.
Hmm. So last week what was going on? – As I blogged, link here , the case of “Ames” has completely turned a 360 degree spin round an earlier decision of “Ilott”.
Still, perhaps that previous case was a one-off and after all it did put us lawyers all into a bit of a flap. Because if the [now discredited?] case of Ilott -v- Mitson was really the law, it was pretty much a slap in the face for the idea that if you are an English Citizen then you are free to make the Will of your choice, even “leave it all to charity” if you want.
So now what this week? It seems to me, another 360.
I wrote a Blog in May this year about the case of PURRUNSING – link here – in which I highlighted a recent case of property theft.
As so often since the abolition of title deeds in England in 2003, this was a case where a person, who turned out to be a Crook, successfully pretended to be a genuine property owner and managed to escape with the value of a house.
In that case, the Judge heard that the “purchaser” [P] had instructed solicitors to ensure that he would become the owner of the house he was paying for, and decided that P should be reimbursed.
Clearly he [P] had placed the transaction into the hands of professionals who were charging professional fees, and yet he had received nothing for his £470,000.00. It had been stolen.
The Judge said that the solicitors involved, both those acting for P, and those unknowingly acting for the crook, must pay half each of the lost money.
So this seemed to be a warning to all Solicitors, that the Court will view them as absolutely liable to provide the service they advertise, and the intended result of those services. By the use of the word “absolutely” I mean, regardless of fault.
Again, like Ilott, this decision was seen as a pragmatic result in so far as a victim [of a cheat – or of an “unreasonable mother”] obtained compensation. But it was also seen by many as a completely unpredictable decision of the kind described by Lawyers as a “Hard case”.
And as the saying goes, it is the hard cases which result in Bad Law.
The Judge was clearly sorry for Mr Purrunsing. Mr P was not a young man and was now faced with the loss of life savings which had been accumulated after “many years of hard work … and careful management of his limited resources” and which he was investing because “his family’s welfare was of the first importance to him”.
And Yet – And Yet.
Neither set of Solicitors had been reckless or negligent in doing what Solicitors are required to do in Conveyancing matters. Everyone involved had been tricked and conned by a crook. Why should two innocent firms of Solicitors be required to provide full indemnity at their own expense, to a victim who has suffered at the hands of a criminal?
Well why indeed? Here -link here- is the recent case of P&P Property Limited. Almost identical facts – a conman impersonates a property owner, and gets away with over a million pounds paid to him by the defrauded purchaser [P&P].
To twist the knife further, the purpose of the transaction, from P&P’s point of view, was to refurbish and improve the property for sale at a profit. So when they were told they had completed and bought the place, in they went with diggers and teams of builders. By the time the fraud was discovered, their uncompleted building work had reduced the value of the house by £34,000.00 which the true owner now wanted from P&P.
OK so we know from Purrunsing what the Court would do, don’t we? The two firms of Solicitors involved must refund everyone 50-50?
Guess what, not a bit of it.
No, we now find that this time the Purchaser must bear the financial burden of the con. In essence, the Court is saying that The Buyer and the Seller [the Thief] have done a deal and the Solicitors and Estate Agents were merely putting that deal into effect. Which is no doubt a comfort for Solicitors and Estate Agents everywhere.
But is there a thread here? Surely the Law ought to be at least a little bit predictable? If it isn’t, then in what sense is there actually “a Law”? As opposed to, let’s see whether the Judge feels sorry for our client today. [Remember, when you get into Court – let’s see some real tears please]
To recap : –
Ilott. Hardworking Daughter with five kids and a disabled husband is left out of mother’s Will. Hard Case. Result – Mother’s Will must be disregarded
Ames and Jones – Excluded Daughter has a closer relationship with late father than in Ilott, but is a “Feckless daughter for whom unemployment is a lifestyle choice”. Result – No change to Father’s Will.
Purrunsing. Hardworking family man cheated out of life savings. Hard Case. Result – Solicitors have to get their hands in their pockets and reimburse the poor old bloke.
P&P. Property speculators cheated out of £1 million [twice as much as Purrunsing] in pretty much a repeat of the Purrunsing scenario. Result – live with it Speculators, you’ve been cheated. You speculated and you lost.
Long term, it seems to me that the Judges need to be a bit more hardnosed if the idea of jurisprudence is to decide cases on the basis of the Law, that is to say on an analysis of the facts within a clearly understood framework of rules and precedents rather than – “who do we feel most sorry for today”. Or is it just me? Because if cases are to be decided on the basis of “who is making me cry” then surely that’s the end of Jurisprudence. What’s the use of law, if no-one knows what it is?
If there is any good news about this, perhaps it is that both the recent cases of Ames, and P&P, are correctly decided and properly in line with what most Lawyers had always understood the Law to be. Each of them have now corrected the Bad Law of their respective Hard Cases.
Let’s hope that’s the case. Because otherwise we may be better off to stop bothering the Courts for Justice, and just toss a coin instead? Do you feel lucky? – song link here
And please remember, do call me or Louise here at AtkinsonNotary whenever you have business documentation for foreign countries. Our number, 0113 8160116, and emails to firstname.lastname@example.org. Website http://www.atkinsonnotary.com