“Perspectives”: Blog by The Honourable Mr Justice Morgan

 

 

At the recent dinner of the PLA at the Ironmonger’s Hall in November 2018, I was asked to give my assessment from a judicial perspective of the work of the PLA. I have now been asked to record in this blog some of the things I then said. I am happy to do so.

The PLA is a successful and thriving body. It performs valuable services for its members and through them for a wider group. The wider group includes the clients they serve and also the courts in which they litigate.

As you will know, the PLA actively pursues a number of objectives. These include education and training and law reform. It is right to do so.

Education and training is essential and becoming more essential all the time. In the field of property law, there has always been a steady flow of new legislation and new regulation. But on top of that, there is a constant and heavy outpouring of decisions from the courts and tribunals. These days, the decisions of the courts and some tribunals are immediately available on Westlaw or Lexis or bailii. On the whole that is a very good thing but it is certainly demanding for the practitioner who needs to keep up with developments in the law.

At the dinner in November 2018, I quoted some figures for the number of cases on bailii for the Supreme Court, the Court of Appeal (Civil Division) and the Chancery Division. I have updated the figures for the purposes of this blog. I have collected the figures for July up to the end of November 2018 to give an indication of the position in recent months, which has been typical of earlier periods.

For the Supreme Court, the number of decisions which appeared on bailii were:

  • July – 15
  • August – 1
  • September – none
  • October – 6
  • November – 7

For the Court of Appeal (Civil Division), the number of decisions which appears on bailii were:

  • July – 76
  • August – 18
  • September – 22
  • October – 52
  • November – 45

And for the Chancery Division, the number of decisions which appeared on bailii were:

  • July – 56
  • August – 16
  • September – 18
  • October – 43
  • November – 39

Of course, not all of these cases involved property law. Some of them certainly were pure property law cases. Many others concerned legal topics which a property lawyer must know about. A property lawyer needs to know of recent developments in relation to the law of contract and many torts, in relation to the rules of equity, in relation to the construction of contracts and of statutes, procedure and evidence – and so on and so on.

This sample of cases which appeared on bailii does not include other courts like the Privy Council and the Commercial Court. It also does not include the specialist tribunals which deal with property law cases and which decide many cases of great significance to the property law practitioner.

That is why I say that the need for education and training is a considerable one and one which the association rightly recognises it must pursue for the good of its members and their clients. Of course, much of the work of practitioners should be directed to keeping their clients out of court. But when litigation ensues, our system of justice works best when litigants are represented by well-informed advisers. As a judge, I appreciate the contributions made by lawyers who know and understand the legal principles and can offer real help to the court in solving the problems in the case.

Then there is law reform. When Parliament is eventually able to return to its job of passing legislation to reform the law – it has recently been distracted from this task by other matters – there are no doubt many areas of property law to which it needs to attend. When that time comes, the PLA can be relied upon to express its views as to where reform is needed and, in particular, where it is urgently needed. Practitioners, represented by the PLA, have a great deal to offer law makers and draftsmen. It is the practitioner above all who knows what practical problems exist and how they can be remedied.

It is already clear that there will be legislation in relation to land registration and in relation to the valuation steps involved in leasehold enfranchisement. The PLA will have an important role to play in ensuring that workable legislation ensues.

An area of law which might receive attention from a law reformer is the legislation on town and village greens. I think the questions should be asked: is that legislation appropriate or, at any rate, is it appropriate in its present form? Is it right to take away (or, for all practical purposes, take away) from public authorities and hospital trusts land which they have assembled for the purpose of public use but which, while the public body planned for the future use of the land, it allowed the land to be used for recreation, such as dog walking? Quite apart from these policy questions, the current legislation on town and village greens has given rise to regular trips by litigants to the Supreme Court and another one is on the way. Would it be a better use of time to amend the legislation rather than to argue what the unamended legislation means and how it works?

 

Sir Paul Morgan

High Court Judge, Business and Property Courts of England and Wales

15 December 2018