Lawyers in Glass Houses (or, indeed, Cubicles)

Paris Hotel de Ville ready for a visit by George V and Queen Mary. From the Universite de Caen collection on Flickr Commons.

Paris Hotel de Ville ready for the state visit of George V and Queen Mary in April 1914. From the Universite de Caen collection on Flickr Commons.

Not long ago, I visited two very different solicitors’ offices in the space of the same week. The first was a stone-built Victorian warren of rooms in a rural Derbyshire market town. The firm had been in the same premises since at least the mid-nineteenth century, and it showed: from the faded posters advertising farm auctions that had taken place before the first world war, to the massive walk-in safe which was itself literally big enough to accommodate a meeting, it was testimony to the part that the firm had played in the local economy, and the ties that bound the two together. It was also dark and gloomy, badly organised for modern business needs, and I suspect the winter heating bills are tremendous. On the other hand, it had character by the bucketload.

The same week I visited the offices of another firm. The office building itself dated from the 1920s, but the designers had been given free play over the interior. Open-plan ruled. The old dividing walls between rooms had been swept away, and glass partitions now divided the working areas, including the meeting rooms. One particularly striking feature was the design of two meeting rooms on the ground floor, which had full-height windows on the street side, and full-height glass partitions on the interior side. If the window blinds had been raised, the effect would have been pretty much as if you were holding a meeting in a terrarium, with the added feature that any stray passer-by could stand and watch you (and presumably peer at the documents on the table if they felt so inclined). Understandably, therefore, the window blinds remain permanently lowered, at least on the street side. It seemed an odd place to put a meeting room, but perhaps the exigencies of the building demanded it.

These offices were light and bright and, I imagine, much more cheerful and pleasant to work in; but they seemed much less connected to the local community and the local economy. They also have far less character: I visit more or less the same office in different parts of the country all the time. Something always seems to get lost when the designers get going; and there are other dangers in glass walls, as  S v J & Ors [2016] EWHC 586 (Fam) demonstrates.

S v J is an interesting decision, which will feature in the upcoming edition of Family Property News. Ms S sought (and obtained) declarations under the MWPA that she owned substantially more of the equity in two properties than her partner, Mr J. There will be more detail on the trusts of land aspects of the case in FPN, but one other feature was that Ms S claimed that she had been placed under considerable pressure by Mr J to enter into a mortgage re-financing deal which was very much to her disadvantage. Mr J was described as having a volatile temperament, and Ms S’s evidence was that she was “walking on eggshells” during the time that the deal, which was his pet project, was being put together. She was caring for one child of less than a year old and was pregnant with their second child, and in the circumstances felt extremely vulnerable.

When Ms S attended the solicitors’ office to execute the charges and receive independent legal advice about her position, the meeting took place in a glass-walled room. Mr J was outside the room throughout the meeting, waiting in the reception area. The Judge (Roberts LJ) noted that “throughout the course of this one to one meeting, the applicant told me that she could see the respondent through the glass wall. He was sitting in the reception area looking at her”. It is not expressly said that this situation was at the very least stressful for Ms S, but given that she specifically mentioned it in her evidence, it is likely that it was.

In fact, Ms S was at that moment being given very clear (and very sensible) evidence not to enter into the charges, but one suspects that the impact of that advice on her was substantially decreased by her being under observation by Mr J throughout. Matters cannot have been made any easier by her awareness that the solicitor was telling her the opposite of what Mr J, who was directly in her eyeline, had been telling her about the whole arrangement.

As it happens, Ms S did not claim that she was entitled to set aside the charges as against Mr J because of his undue influence; the facts of her case did not support it. But it’s clear that this situation could well arise in cases where there is either real or presumed undue influence, and the fact that the oppressor was able, throughout a crucial interview, to glare at the oppressed might be important. It’s all too foreseeable in such circumstances that a client might well come back to the solicitor and complain that her interests were not properly prioritised, and that she should not have been put in a position where her oppressor was able to fix his eye on her in an intimidating manner through a glass partition.

At the very least, ensuring that the client has a safe space, where she can hear and respond to independent advice away from the gravitational pull of the person who wants her to enter into the transaction, is good client care. It’s good care even if you have no reason to believe that there is any possibility of undue influence; the whole point of the “independent legal advice” requirement is to get the client to focus, unimpeded, on her own interests and position, and the requirement to give that advice arises when she is proposing to enter into an agreement to her disadvantage, not when there is any suspicion that undue influence may be at work.

In other words, when you give independent legal advice in a glass-walled office, lower the blinds. Better still, ensure that the client is given advice well away from the person who will benefit from the transaction, and certainly not within his field of vision.

In this respect at least, the antiquated offices in Derbyshire — with its massive panelled doors and gargantuan Victorian furniture — would have suited the purpose better than the light, bright city offices. It would hardly be possible to imagine a safer space, although it would certainly be possible to imagine a more comfortable one. The old ways are not always the worst.





Form JO – Law Society Issues Practice Note

Mr Jaggers: No nonsense about joint ownership in his day.

Mr Jaggers: No nonsense about joint ownership in his day.

Following the publication by the Land Registry of Form JO, which I covered in my previous post here, the Law Society has now issued a practice note advising conveyancing solicitors on a number of matters to be taken into account when dealing with joint purchasers. It’s all good, sensible stuff and can be found here. Of course there are some problems that Form JO cannot solve, most notably the concealed or phantom purchaser and the “ambulatory trust” whose existence was confirmed in Kernott. But it’s a start.

Form JO — A Potentially Important Development

You may remember that at the time of the House of Lords judgment in Stack v Dowden, Hale LJ dropped a very heavy hint to the Land Registry that it would be useful if it was to review its practice of not requiring joint owners to set out their interests in the equity, or their expectations of such interest, at the time of the conveyance. The mills of the Registry run slow, it appears, but there is finally some movement. Last Thursday, 1 November 2012, the Registry introduced a new form “JO” which is intended to make a significant difference to conveyancing of titles where there is more than one beneficial owner. This development is of particular interest to those advising cohabitees and others entering into a joint purchase of property.

Form “JO” is a voluntary form – it does not have to be completed, and joint owners can still rely on the relevant tickbox sections of TR1, FR1 and other forms. Where all relevant names appear on the title, purchasers will probably still take that course. However, the really important development in Form JO is that it directs the purchasers’ intentions to what is to happen if one of the joint purchasers is not on the title, as, for example, where the house is bought in the name of one partner but it is agreed that the other partner will have a half-share.

It was always possible to record an agreement like this by executing a separate deed of trust and referring to it at Box 10 of the TR1, but it was hardly ever done. Now, the conveyancer has an opportunity — indeed, it is more or less an obligation, since the careful conveyancer must direct the attention of the parties to the existence of this form — at the time of the transfer to point out to both parties that there is a very easy way to record this agreement for posterity. Parties should have their attention directed to Form JO and their instructions as to what to do about it should be carefully recorded. It is likely that in due course, the question of whether or not a Form JO was completed at the time of purchase will assume quite a lot of importance.

Form JO is an important opportunity for those who do not intend equity to follow the law, or who have unusual arrangements about the equity — it is to be shared with someone not on the title, for example, or the beneficial tenancy in common is to be held either in unequal shares or by a formula which is agreed now but will be calculated later — to put that in writing at the very earliest opportunity. It is also, incidentally, a good opportunity to look at whether the completion of Form JO should be part of making a cohabitation agreement.

Women with children who are living with their partners but who are not on the title should in my view be strongly advised to put any agreement about their eventual share of the equity into Form JO at the time of transfer.

Conveyancers will no doubt already be aware of this development. They may be underwhelmed and tell you that what can be done by Form JO was already possible under, for example, box 10 of the TR1. That is true, but the important thing about Form JO is that it is a specific stage in the conveyancing process which should be considered by the conveyancer and the parties should be advised about it. Whatever they decide to do (as I have said, completion of the form is voluntary), a careful record of the advice and instructions should be kept on the file.

There is a link to the relevant page on the Land Registry website here.

Where’s your sense of humour?

Take my wife .... From the National Library of Scotland archives on Flickr.

You’ve got to love this story from the Daily Telegraph about the intellectual property rights to laugh about the divorce. A stand-up comedian, Stephen Grant, was asked by his ex-wife’s lawyers to give an undertaking that the divorce would not form part of his act. It’s not quite clear from the story what happened, because the request was made in April 2009 and seems to have been immediately rejected (rightly, in my view), but Mr Grant seems to say that he has only now felt free to use the material in his act, which tends to suggest that the dispute went on for a bit. Practitioners will certainly recognise the sentiment, “She seemed to love my sense of humour back then but she very quickly lost it in the divorce”. A sense of humour, along with a sense of proportion, is one of those assets that lawyers can’t get back for you once they’re gone, but it should be treated as valuable all the same.

This story is a sad little sign of the times. I’ve come across quite a few attempts myself recently to gag departing partners from talking about the break-up. The long shadow of Facebook and other types of social networking is getting cast over more and more partings these days, and more people now have the capability of airing their grievances to the world at large, even if they’re not stand-up comedians. And, as we know, the danger is that once the information is out there, it will be out there forever. (I’m not totally convinced about this, actually, there are storage limits on blogs and social networking and eventually items will be deleted just out of sheer apathy, but I agree that your past will certainly hang around for longer than it once did.) Even the man or woman on the Clapham omnibus has a “public profile” these days, and wants to protect it.

Anyway, I strongly suspect that Mr Grant had better be very, very funny if he wants to avoid further wrath from his ex.

A Familiar Tale of Woe

charmkin family

By Merwing Little Dear from Flickr

I’ve just got back from a week away and will be rounding up some interesting developments over the past few days, but thought I would start by directing the attention to this very familiar tale from the Times. If you’ve come to this blog looking for information about your rights when living together, I urge you to read this story, which is very typical, to see what can go wrong. The moral, as always, is get proper legal advice. My professional legal readers will note the all too common aside that this couple congratulated themselves on holding on to their money for fixtures and fittings, and keeping it out of the clutches of the lawyers. Note also the womanly attitude, sadly very typical in my experience, that it isn’t romantic to discuss these things: Mills and Boon have a lot to answer for in the opinion of your humble servant. Still, fortunately for them, these two managed to sort it out in the end, which was just as well given the amount of equity in the property. On this topic, there is an interesting comment in the Times here to the effect that over the next few years, the nation will become divided into the equity-haves and equity-have-nots. It’s already happening, I think, with serious consequences for the unwary cohabitee. More on that anon …