Tuesday, 22 November 2011

Litigants in Person: DIY Law (and Lease Mergers)

I’m enjoying Garrows Law, currently in its third season and being broadcast by the BBC on Sunday evenings.

For anyone with a passing interest in the development of the English legal system it makes interesting viewing. I particularly like the judge exhorting the jury to “get on with it” after about 10 seconds of deliberation on a capital offence; a deliberation which takes place in a courtroom huddle in full view of everyone (like they’re organising a whip-round rather than a hanging).

I’ve no idea how accurate it is (not very, according to Professor JR Spencer of the University of Cambridge), but like m’learned friend Charon QC, I’m not that bothered either. Sunday evening is better spent hoovering up the dregs from lunchtime than fretting over historical accuracy.

We don’t hang people for petty theft or causing criminal damage any more (at least not at the time of writing), but it seems we are at a tipping point so far as access to justice is concerned. Legal aid in criminal cases is really only available now to those on benefits. In civil cases, we face the prospect of thousands more people having to represent themselves in court once civil legal aid has, like most of the defendants in Garrow’s day, bitten the dust.

These are the so-called litigants-in-person.

The implications of the dwindling availability of professional representation in court are considered in a very well- written piece by Adam Wagner on the UK Human Rights blog.

Adam discusses the major new report issued by the Civil Justice Council called Access to Justice for Litigants in Person (or self-represented litigants). It is a major and ambitious attempt to make the justice system fairer and simpler for people who go to court without a lawyer, although as Adam concludes, it’s a moot point whether there will be the will or the money to carry out the transformation that the justice system really needs.

For the DIY lawyer, the labyrinthine, and often positively Kafkaesque, procedural complexities of our court system are bewildering and well nigh impossible to navigate. It often takes up a great deal of court’s time trying to help them through the legal maze.

Information about the law can also be hard to get hold of, notwithstanding the vast amount that can now be discovered on the internet. As Adam points out, at the moment, online information for litigants is split between the Directgov website (which is not very user friendly and often seems inadequate), the court services and the Ministry of Justice. There are also the websites of the other government departments and the excellent Bailii for reported cases, but the latter is a charity dependent on the benevolence of others to keep it going (and long may it continue). The sources of information on the internet are generally very fragmented.

Even so, sometimes the little guy can beat the system.

This talk of litigants-in-person reminded me of a property law case a few years ago where a litigant-in-person not only won his case in court – and the Court of Appeal at that - but also caused the Land Registry to have to rewrite one of its practice guides as a result.

In Wall v Collins [2007] EWCA Civ 444 Mr Wall claimed he had a right of way along the passageway beside his house in Bolton. The Land Registry told him it had ceased to exist, but Mr Wall, representing himself, was having none of it.

When a leaseholder buys the freehold, the lease “merges” into the freehold, which usually means it disappears. This case concerned the question of what happens to rights that were granted by a lease after that lease has merged with the freehold.

It’s a highly technical issue, but one that was pursued by Mr Wall with a tenacity and refusal to be defeated often found in litigants-in-person.

Established legal thinking at the time was that when a lease merges with the freehold, any easements or covenants attached to the leasehold interest are extinguished. It had therefore become common practice in some instances to provide that the lease did not merge when the freehold was acquired in order to ensure that the benefit of the rights would not be lost. This was a bit cumbersome however because it left a lease in place that nobody really wanted.

Mr Wall’s lease had already merged, so he could not take advantage of this practice. Mr Wall instead argued, and the Court of Appeal agreed, that the practice was unnecessary. The court decided that when a tenant has an easement, the easement relates to the property, but not to any particular interest in that property.

The easement exists in its own right, it has a life of its own, and can remain even after the lease that created it has ceased to exist, although only for the remainder of the term for which it was originally granted.

All of which might sound a bit existential. However, what it meant for Mr Wall was that he could continue to use a passageway by virtue of an easement that had been granted by a lease as long ago as 1910 (which was merged with the freehold in 1999), and as the term of that lease was 999 years, Mr Wall had a right of way that would outlive him, the life of his house, and in all probability western civilisation itself.

That was one in the eye for the legal establishment, as well as the Land Registry who, rather embarrassingly for them, had to write an addendum to Practice Guide 26 on lease determination, correcting their error. It’s now referred to in paragraph 4.4 of the current Practice Guide 26. Note that the Land Registry won’t automatically note these rights on the registered title; you have to ask them to do so when the lease is merged.

What if the rights only last for a short time, say 5 years? That’s not much use to a freeholder.

The Court decided, in Wall v Collins, that the right could be converted into a permanent right under section 62 of the Law of property Act 1925, which says that a conveyance or transfer of land is deemed to include all easements and rights used with the land. Short term rights can be converted into permanent freehold rights in this way. However, a word of warning, section 62 is often disapplied as a matter of course in modern conveyancing precedents. If you are a tenant buying your freehold, you might therefore want to delete any exclusion of section 62.

Oh dear. I’ve managed to meander from a discussion on fundamental rights concerning access to justice to a conveyancing technicality. Mea culpa (which for younger readers is Latin for “my bad”).

Mr Wall was clearly up to the task.

Many people facing more serious blights on their lives, left to drown in the rising tide of ever more new law, might not be so skilled or even so lucky.

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