Modern Studies in Property Law, Volume 10

Ben McFarlane, Sinéad Agnew, Ben McFarlane, Sinéad Agnew

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509974238
• eBook ISBN: 9781509921386
• Edition: 1
• Topic: Law
• Subtopic: Property Law
• Index: Law

This book contains a collection of papers presented at the Twelfth Biennial Modern Studies in Property Law Conference held at University College London in April 2018. The conference and its published proceedings are an established forum for property lawyers from around the world to showcase the latest research. This collection includes a keynote address by Dame Elizabeth Gloster, former Vice President of the Court of Appeal (Civil Division), on technology in property law. It also includes plenary addresses by Professor Henry Smith on the architecture of property law and the challenge of compiling the American Law Institute's Fourth Restatement of Property, and by Her Honour Judge Karen Walden-Smith on the role of the first instance judge in property cases. Sixteen further chapters address a wide range of issues, including the theory and taxonomy of land law, the re-evaluation of land obligations, the nature and operation of equitable property rights and shares, the role of property in commerce, comparative approaches to leases and trusts, and contemporary issues in land registration. Collectively, the chapters demonstrate the vibrancy, diversity and importance of property law and of current research in the subject.

PART I

Modern Challenges in Property Law

1

Technology in Property: Putting You All on Notice

DAME ELIZABETH GLOSTER

I.Opening Remarks

It is a huge honour to have been asked to give the Keynote Lecture of the 2018 Modern Studies in Property Law Conference.¹ When I received the email from Professor Ben McFarlane asking me to do this, I must confess I found it a somewhat daunting prospect in light of the list of distinguished predecessors. I thought perhaps a look at the programme would calm my nerves but instead ended up struck by the breadth of expertise that would be represented in the room. At the time of my invitation, I was deeply engulfed in the fascinating world of synthetic credit default swaps. Although Ben emphasised that property law was ‘broadly defined’, I came to the conclusion that that subject might have only minority appeal for this audience. I opted instead for technology.

We judges are often portrayed in fiction and in the media as old-fashioned and otherworldly. I aim to persuade you today that – contrary to popular belief – I do own an iPhone, I am familiar with the concept of an ‘App’, but I have never been one for selfies, which is probably to the delight of the Lord Chief Justice.² In reality, most judges are committed users of technology and strive to embrace technological solutions that offer practical benefits in our everyday work. Counsel who appear before me are accustomed to requests from my clerk for electronic case files prior to a hearing. I am always grateful to the team of solicitors that puts these together and I can assure you they save me time both during the hearing and in the judgment-writing process. Although there will be some resistance, I expect the paper bundles that fill commercial and property courtrooms to follow the fate of tea trolleys and chauffeur-driven judicial limousines.

Judges regularly have to decide cases that consider the application of law to new technology. One such example is the open debate about email service of process, although perhaps fewer and fewer people remember email as being ‘new’ technology. There are two relevant cases from this year that I would like briefly to mention. The first is Knight v Goulandris³ in the Court of Appeal, and the second is Barton v Wright Hassall LLP⁴ in the Supreme Court, which was handed down the day after Knight. Knight involved a party wall dispute, the facts of which were as follows: the appellant, Mr Knight, had built a basement extension to his house, involving a party wall extension. Damage was caused and Mr Knight and his neighbour, Mr Goulandris (the respondent), each appointed surveyors to determine its extent. They appointed a third surveyor under section 10(1)(b) of the Party Wall Act 1996. The surveyor made an award, which Mr Goulandris appealed in the Central London County Court. Mr Knight argued that the appeal was out of time. The appeal was issued on 17 September 2015 and, according to Mr Knight, the 14-day time limit under section 10(17) had expired on 15 or 16 September 2015. On 2 September 2015, the third surveyor had emailed the award to the surveyors of both parties. Mr Goulandris’ surveyor had forwarded the email to him at 23:19 with the award attached as a PDF. He read it the next day. Also on 3 September 2015, Mr Goulandris’s surveyor received a hardcopy in the post; however, Mr Goulandris did not receive the same. Section 15(1) of the Party Wall Act 1996 sets out the methods by which notices or documents ‘may be served on a person’. It does not include email service. However, section 15(1A) adds that electronic communication can constitute service ‘but only if the recipient has stated a willingness to receive the notice or document by means of electronic communication’ and not withdrawn that statement.

Before I discuss the outcome of Knight, let me introduce the second case, Barton. In Barton, the defendants instructed solicitors who entered into desultory correspondence by email with the claimant, concluding that they would await service of the claim form and particulars. In June 2013, on the last day before expiry of the issue of the claim form, the claimant emailed the defendants’ solicitors, attaching the claim form and particulars of claim in purported service of them, but without obtaining prior permission to do so as required by the Civil Procedure Rules (CPR), rule 6.3(1) and paragraph 4 of Practice Direction 6A supplementing Part 6. The defendants’ solicitors served no acknowledgement of service but wrote to the claimant and to the court stating that they had not confirmed that they would accept service by email, that in the absence of such confirmation, email was not a permitted mode of service, that the claim form had expired unserved and that the action was statute-barred. The claimant made an application for an order under CPR, rule 6.15 to validate service retrospectively.

The district judge refused the application, finding that no good reason had been shown for the court to exercise its discretion to grant the order sought. The Court of Appeal affirmed the judge’s decision on the basis that, despite the fact that the defendants’ solicitors had been aware of the claim and had received the claim form before it had expired, the claimant had done nothing other than attempt service in breach of the rules through ignorance of what they were. The Supreme Court (Lady Hale and Lord Briggs dissenting), upheld that decision. This is in contrast to the decision in Knight, in which Patten LJ held that section 15(1A) need not be read restrictively and found that email service had been validly effected. His conclusion is different despite the clear similarities between the wording of CPR, rule 6.3(1) and section 15(1). Given the timing of Knight, the Supreme Court neither considered it, nor questioned whether the word ‘may’ was permissive in the context of CPR, rule 6.3(1) or whether the rule provides an exhaustive list of service methods. This has resulted in uncertainty in the law around whether email service is acceptable. That result is unavoidable given a 3–2 majority Supreme Court judgment, where the minority judgment is consistent with the reasoning of a unanimous Court of Appeal. It will be judges who will resolve this disparity when it inevitably arises again in a dispute.

Cases involving technology often highlight a tension between the force of precedent and a desire to ensure the law keeps abreast of recent developments in technology.⁵ While English⁶ law is ultimately adaptable and responsive to changes in technology, there is frequently a time lag during which it is judges that make the call.

This brings me to the essential theme of my talk, which is how I expect technology significantly to impact the way property disputes are litigated as well as the types of disputes which come before the courts. As Professor Richard Susskind has said, technology will disrupt and radically transform the way lawyers and courts act in all areas of practice.⁷ What I intend to examine is the general relationship between new technological developments and English property law, focusing on relevant case law and commentary. I will argue that we should embrace the opportunity technology provides for property law, but approach this progress with caution. I will go on to analyse the tension which exists between technological progress and the development of an effective legal and regulatory framework.

I approach this in three parts:

–A brief overview of the use of technology in property litigation (section II).

–An assessment of the opportunities for technology in conveyancing (section III).

–An approach to resolving the tension between the technology and the law (section IV).

II.Technology in Property Litigation

A.The Courts

First, the courts: since 2014, there has been a major push – with which senior judges, politicians and officials have all been involved – to embrace technology across the court system. In July 2017, the Business and Property Courts were created as a single umbrella for separate civil jurisdictions across England and Wales.⁸ In London, they are located in the Rolls Building on Fetter Lane, which is not too far from where we are right now. I know the Rolls Building well as I presided over the move into it of the Commercial Court, the Chancery Division and the Technology and Construction Court (TCC) in October 2011, as then Judge in charge of the Commercial Court. At the time, I saw the move as an exciting development in maintaining London’s unrivalled position as a global centre for the resolution of high-value commercial, financial and property disputes. The new building provided a modern environment in which these disputes could be heard, incorporating the latest facilities, which reflected an understanding of the importance of technology to increasing efficiency in the litigation process.

Those specialist civil courts were recently rebranded as the Business and Property Courts. They remain committed to embracing technology to drive down costs and time frames in litigation. One such example was the introduction of mandatory e-filing in the Rolls Building in April of last year⁹ and the provision of public access terminals and scanners in the reception area for those litigants with limited access to the necessary IT equipment.¹⁰ I agree with the assessment that ‘the new electronic case management and filing systems place the Rolls Building in the forefront of modern technology around the world.’¹¹ All of this will continue to make it cheaper, faster and hopefully easier to litigate large commercial and property cases.

B.Disclosure

Second, I move on to an issue on which I have spent much time: disclosure. This is a key procedural stage in most evidence-based claims, which can cost parties a significant amount of time and money. Those of us who have acted in document-heavy cases will understand the importance of disclosure to allowing claims to progress to trial and to facilitating settlements.

Following widespread concerns expressed by court users and the profession regarding the perceived excessive costs, scale and complexity of disclosure, I was pleased to chair the Disclosure Working Group, established in May 2016 by the previous Chancellor of the High Court, Sir Terence Etherton, now Master of the Rolls. In November 2017, we proposed a number of radical reforms to disclosure relevant to property lawyers. Our unanimous view was that there is a need for a wholesale cultural change, which is only achievable by the widespread promulgation of a completely new rule and guidelines. Professional attitudes must change and judges must shift to more proactive case management. In broad summary, we would remove the automatic entitlement to search-based disclosure and the court would only make an order of what is to be newly termed ‘extended disclosure’ in cases where there has been full engagement between the parties before the Case Management Conference (CMC). Such an order would be tailored to the issues in the claim. The overall approach is designed to be more flexible than the current Part 31 and to reflect developments in technology.¹²

This is of particular relevance to property lawyers because the proposal is that the scheme will, subject to approval by the CPRC,¹³ be piloted across the Business and Property Courts in all of the centres¹⁴ for a two-year period.¹⁵ I wholeheartedly agree with the Master of the Rolls’ response to these reforms that:

[i]t is imperative that our disclosure system is, and is seen to be highly efficient and flexible, reflecting developments in technology. Having effective and proportionate rules for disclosure is a key attraction of English law and English dispute resolution in international markets.¹⁶

That is why I consider it important to highlight recent cases such as David Brown v BCA Trading Ltd, Robert Feltham, Tradeouts Ltd.¹⁷ This was a 2016 High Court decision in which BCA was permitted to use predictive coding in its disclosure process,¹⁸ and the first case in which its use was contested.¹⁹ The judge was correct first to consider whether predictive coding would be as effective at identifying the documents which would otherwise be identified through, for example, a keyword search. Having established that it would, he was right to find its significantly lower cost²⁰ rendered it the most reasonable and proportionate method of disclosure.²¹ I would encourage parties and the courts at all levels to continue to be open to using technology to make disclosure less burdensome for all.

C.Access to Justice

Third, at a time like this, it is impossible to discuss the litigation process without commenting on access to justice. As has been widely reported, a greater number of litigants are appearing with...

Table of contents

• Cover
• Title Page
• Foreword
• Preface
• Contents
• List of Contributors
• Table of Cases
• Table of Primary Legislation
• Table of Secondary Legislation
• PART I: MODERN CHALLENGES IN PROPERTY LAW
• PART II: PROPERTY: DEFINITION AND PROTECTION
• PART III: LAND: RELATIONSHIPS AND REGULATION
• PART IV: LAND REGISTRATION: PROBLEMS AND SOLUTIONS
• PART V: TRUSTS: NATURE AND OPERATION
• Index
• Copyright Page