Am I alone in being utterly mystified by cases such as Excel v Masood, P&P v Owen White and Purrunsing v A’Court (and now the Dreamvar case concerning Mishcon de Reya)?

What on earth does a seller’s solicitor have to complain of if their warranty to the effect that they acted for the seller was interpreted as meaning that they acted for the registered proprietor? Who else could they possibly have meant? What is a solicitor if not an officer of the court whose word for the fact they are the duly appointed representative of an identified individual can be unhesitatingly relied on without question? What on earth is the point of them if they are not?

If a man sidles up to me in the pub car park and offers to sell me Blenheim Palace, my first concern, on examining his abstract of title, is not whether a memorandum of livery of seisin was endorsed on the indenture of feoffment of 1723, but whether he really is the Duke of Marlborough. But if I get a letter from Frightfully Posh & Co solicitors saying: ‘We act for the Duke of Marlborough and enclose a draft contract’, I can breathe again. I know that it does not mean: ‘We are acting for a bloke who has wandered in off the street who bears a passing resemblance to a grainy photograph on what might or might not be a genuine passport belonging to the Duke of Marlborough, but don’t bank on it.’ It means: there is a Duke of Marlborough; for present purposes there is only one Duke of Marlborough; and we act for him and you can bank on it.’ (Which is why, incidentally, nearly all CML lenders insist on the seller being represented.)

The decisions in these cases strike me as utterly absurd. If I say that I am acting for John Doe and enclose a draft contract (and office copy entries) for the sale of 23 Acacia Avenue, Tooting, who else am I warranting that I act for, if not that John Doe who is the registered proprietor? And, if I am not warranting it, then what on earth is the point of continuing to deal with me?

Call me old-fashioned, but it strikes me as unprofessional for a seller’s solicitor not to stand by their warranty (even if, as a strict matter of law, they might be entitled to). The entire conveyancing market depends on it – and in particular upon having complete confidence that, in paying the solicitor, one has his copper-bottomed warranty that one is paying the client for whom he said he was acting. The only ratio in the decided cases (that I can make any sense of) is that the purchaser in each questioned the solicitor’s authority – and thereby demonstrated that they were not relying on it.

One hopes to goodness (or, at least, I do) that: (a) the Court of Appeal will put an end to this nonsense and restore the solicitor’s warranty of authority to its rightful, Penn v Bristol & West condition; and (b) whether or not it does, the Law Society acts to make it clear that a solicitor’s warranty of authority, once given, is absolutely binding, as a matter of honour, if not law – and not to be wriggled out of on any pretext whatever.

NJC Thorowgood, Fraud prevention, Clifton Ingram, Wokingham

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