I’m pretty sure that, in the same way we all bleed and think education is wasted on children, the legal systems of all nations are things of devilish contrafabulations. They are developed to confuse and obfuscate. The English (and Welsh) legal system is a long marinaded pudding of bollocks and badinage.
Example: I was involved in a transaction for a well known hotel group which owned huge sea front hotels in about 70 countries. They were looking to consolidate their debt mountain and were intending on using these fabulous assets as collateral. As part of that plan we lawyers had to verify said hotels were owned by entities within the hotel group and that the hotels enjoyed all the necessary rights and benefits that meant they were viable as security. One such right is access to the publicly owned road systems in the various jurisdictions – many hotels fronted directly onto said roads but some needed access across other private land. The same with utilities. In English law these rights across private land are called ‘easements’ and there are strict and picky rules that have to be adhered to in order for them to be considered ‘good ‘ security.
My team sent out a questionnaire to find out if each hotel had all it needed.
The form we used worked well from Spain to Senegal, America to Arabia. But the lawyers we employed in South East Asia appeared to have a problem. Either they answered ‘not applicable’ or ‘yes’. While in other situations these might have been perfectly good answers, they made no sense when set against our questions. An assistant was charged with the task of calling our contact to ascertain why his team had failed to do what we asked.
Said assistant returned, somewhat red-faced. ‘It’s the heading,’ was his answer to my unspoken question.
‘Heading?’ I turned up the form we’d sent. The relevant section said something like ‘Rights and easements necessary to enjoy the [hotel]’. Now, in an ideal world we wouldn’t have used such a technical term as ‘easements’. However, in our defence all the other countries who had replied had either ignored that expression or looked it up.
Not our Asian friend. He had pondered what on earth we could have meant and had something of an epiphany. It was a simple mistake – a typo – and he had re-written the heading so his own people could answer the questions posed. His rewritten heading?
‘Rights and basements necessary to enjoy the [hotel]’
Why we might be particularly concerned with anything below ground was beyond him, but then he had probably long since given up trying to understand a nation that brought the world marmite and Piers Morgan. He hoped his work met the desired standard.
This (extraordinarily long and tortuous) lead in is by way of a warm up to help contextualise my experiences as a trainee lawyer in 1979-81 – what we called an articled clerk – and especially the vicissitudes of the system by which property changes hands. Or ‘conveyancing’ as it is known.
As a young shaver, my role in this process of buying and selling land comprised 1. carrying out some of the investigations – what is grandly called ‘due diligence’ – to make sure the seller wasn’t pulling the wool over our eyes 2. processing unconscionable quantities of paperwork, and 3. carrying out the completion formalities.
It is that last role I want to consider here.
These days so much of this is electronic, automated and frankly dully efficient and quick. Back then it was a tedious and turgid set of formalised ballet steps that required a lot of persistence and a fair bit of leg work.
To begin with the date for completion was fixed 28 day’s previously – completion of any house or flat sale always took place 28 days after binding contracts had been exchanged. Why 28 I know not. It just was. On that feted or fateful – either might be appropriate – day my first job was to organise the money that was needed (if acting for the buyer). These ‘completion proceeds’ comprised the agreed price less that 10% deposit that had been paid on exchange of contracts plus or minus any ‘apportionments’ – basically adjustments to things like local taxes that were paid annually or rents if leasehold.
Nowadays the bank electronically moves the money between solicitors’ bank accounts. Back then we used what was called a ‘banker’s draft’ – essentially a cheque written on the bank’s own account so it would only bounce if the bank went bust. Banks go bust? What a fanciful notion.
More amazing than this was the idea that, as long as the bankers draft was banked that day the funds were treated as cleared. How long, I wonder, does a cheque take to clear today? The good old days, eh?
Having obtained the draft, I would hightail it to the solicitors who were acting for the vendor – the seller – there to (a) verify the seller owned the property and (b) check he/she/it had signed the conveyance whereby the purchaser would own the land. Nowadays with vast swathes of England and Wales having registered titles – not all mind you – it’s once again something of a formulaic process. Then it was anything but and sometimes it took hours going through the title deeds to make sure they all added up. Of course we had already done a check but back then copying was neither uniform nor cheap so this might be the first time we had seen all the original documents. It depended on whether we had been given an Abstract of Title or an Epitome of Title. Really, you don’t want to know.
It could take a while. And it was always tedious.
Eventually if satisfied, I would announce I was ‘ready to complete’ at which point the seller’s lawyer would check the banker’s draft and if correct we would date the conveyance. If as was often the case there was a mortgage involved I would date that too. And then lug all the bloody documents back to my office.
The good old days? My fat twanny.
Let us consider one example.
It’s a golden Tuesday in November, and I have a completion at an old office building called Plantation House, deep in the City of London. The solicitor I am to meet is one Mr Warburton. My principal tells me he is ‘a bit of a stickler’ which is forewarning for making sure I have everything I need as he will not permit of mistakes.
‘It’s a big one.’ In 1981 that meant anything over £250,000 and this is £457,000. My first job is to collect the banker’s draft. But I’m given a letter of authority in the wrong amount. So I have to schuggle back to the office, thus losing time. I have no method of forewarning Mr Warburton of my delay. I am about to depart for the completion for a second time when my principal tells me he needs the office’s large briefcase. I now only have my own to carry back all the documents so I glance around and ‘borrow’ my room-mates, leaving them a short note of apology.
I have never held anything with so many noughts on it. The draft is huge and doesn’t fit in my inside pocket so, in my haste, I open my colleague’s briefcase, unzip the secure inner pocket and stuff the bankers draft inside.
I take a cab – I’m now officially in a hurry and damn the expense. Mr Warburton is waiting for me in a meeting room, piles of documents neatly stacked for me. He is small, balding and devoid of both animation and humour. As I start in on checking pile number one, he extracts a tupperware box from his briefcase and begins to demolish a cheese and pickle sandwich. He says nothing. He offers me no refreshment. He is an arse.
After one hour and fifty one minutes I decide I have seen all I need to and express myself satisfied. ‘Shall we date the conveyance?’
He is a man not given to haste. In a slow, deliberate and frankly bloody irritating way he closes his sandwich box, wipes his fingers on a large handkerchief and lays out the conveyance. I check it is the one I have seen before and that it is signed by his client.
‘All good.’ I proffer a smile It is wasted on one such as Mr Warburton.
At last he speaks. ‘Perhaps, Mr Le Pard, this is the point where you show me you have the correct money?’
He stands at my side, hand out, expectantly.
I admit that, at this point I am a little frazzled and have forgotten where I have put the draft for safe keeping. I check my inside jacket pocket and as I am doing so, I remember I stuffed it, rather roughly it must be said, inside my colleague’s briefcase. Said briefcase is leaning against the meeting room wall.
‘It’s in here,’ I offer, ‘ as I pull the case to me and pop it on the desk. ‘Just…’
There are many heart stopping moments in one’s professional career but at this point I am young and have had few, if any. Putting my hand inside the zipper pocket and feeling nothing that could conceivably be a paper bankers draft is definitely a particularly severe example of the genre.
‘It’s definitely…’ I am rummaging frantically. There appears to be something in the way, the lining of the pocket come loose maybe. In what can only be described as panicked desperation I yank out the lining and time stops.
Mr Warburton and I are facing each other. We are perhaps five feet apart. His hand is still outstretched. In my hand I am holding out to him the contents of the pocket. Said contents unfurl themselves and in the slowest of slow motion morph from something as bland and harmless as a pocket lining into a pair of 70 dernier ladies nylon tights.
Mr Warburton loses control of himself, to whit one eyebrow rises by a minimum of seventeen millimetres from the horizontal. He steps back slightly before saying ‘thank you’.
I admit that wasn’t the most obvious response but unbeknownst to me, in the process of the unfurling, the bankers draft has been freed from its nylon prison and fallen into his hand.
In one of those many unspoken understandings that the British are famous for the appearance of the tights is treated as never having occurred. In short order, the conveyance is dated and I am sent on my way. Somehow I have survived and any humiliation has been avoided.
It is three fourteen when I arrive back in the office. My principal calls me into his room. I enter prepared to take the polite congratulations on a job well done. My principal is seated behind his desk, his fingers steepled under his chin. ‘I’ve just had a rather peculiar call from Warburton. He says that while he appreciates you may have some slight skills as an amateur prestidigitateur, perhaps you could confine yourself to practicing said skills outside of working hours.’