Michael Ranson shares what his first two years as a barrister have taught him that would have been beneficial during his distinguished career as a solicitor and partner.
Before being called to the bar in 2019, I spent 15 years as a property solicitor in the City of London. From time to time I would help my litigation colleagues with property disputes, but the bulk of my practice was transactional – mainly advising clients who wanted to buy, develop or sell land. Practice as a barrister has taught me a number of things that would have been useful in my previous professional life. I will explain some of these lessons and give transactional solicitors six tips flowing from them.
The law can be uncertain without someone being wrong
One of the many aspects of life at the bar that I enjoy is having the time to read books, dig into the law and sit and think about a property or a dispute in a way which might not be economically viable for a law firm partner. My chambers is full of property barristers doing just that.
All this barristerial thinking time does not, however, produce certainty. On the contrary, when first in chambers I was surprised that just because barrister A thought the law worked one way and barrister B thought it worked differently did not mean someone was wrong. Both arguments were seen as valid and the uncertainty associated with that was openly acknowledged.
The meaning of a document can be uncertain, even if it is very clear to you and your client
This uncertainty extends beyond the law and goes to the very heart of what transactional solicitors create day in, day out – written agreements. The Interpretation of Contracts by Sir Kim Lewison runs to around 1,000 pages and is full of case law and wisdom about how judges determine what contracts mean.
The very length of the book, and the time my colleagues and I can spend trying to predict what a judge might make of some drafting, shows the uncertainties inherent in disputes about agreements.
Practice at the bar makes one realise that a document which has a very obvious meaning to one person might be said by the court to mean something entirely different.
The outcome of any court hearing is uncertain, even if you think your case is strong
Even if one is confident about the law and what the documents mean, there is an understanding at the bar that, because judges are human, witnesses are fallible and the justice system is not mechanical, even a very strong case might not win on the day. The courts are not a machine into which one puts the law and the evidence, and out of which emerges a predictable result.
The county court matters, even if you mainly read judgments of the senior courts
Because they are all I tended to read, I fell into the trap of thinking that only High Court, Court of Appeal and Supreme Court cases mattered, and whatever happened in the county court was largely irrelevant. I was wrong about this. In particular, I failed to realise the extent to which high-value property litigation is transferred to the county court by the High Court.
Cases often turn on evidence rather than on the law
I thought that litigation, and in particular what barristers do in court, was mainly about the law. While the law is plainly important, I wish I had realised how often cases are won or lost on the evidence. Whether the case is about an easement, dilapidations, a boundary or breach of covenant, a judge will often latch on to just one or two pieces of evidence which appear to show, or hint at, the answer to the question the court is being asked to determine.
Live witnesses are good, but documents are often better, and old documents often best
A witness statement given in the heat of battle is useful, but honest witnesses forget things and dishonest witnesses lie. What, therefore, is going to be more persuasive to a judge: a witness trying to remember what a property looked like 20 years ago or a photograph showing how the property looked 20 years ago? Unsurprisingly, documentary evidence is often vitally important at trial. The really persuasive pieces of documentary evidence are seldom created after a dispute has exploded. Instead, they are often older, such as photos from historical marketing materials or letters from the parties’ predecessors in title.
Six practical tips for transactional property solicitors
1. Spend a day in the county court watching someone else’s client go through a trial
Watching a one-day, fast-track trial will give a flavour of how your clients’ property disputes might be determined. You will see witnesses cross-examined, appreciate the limited time available for oral submissions and observe how quickly a judge must form a view and deliver judgment on a dispute that might have consumed your client’s time and energy for years.
2. Your indemnity insurance statutory declarations can serve a broader purpose
You might often draft statutory declarations for indemnity insurance providers. To get cover for a missing right of way one might, for instance, need to confirm 20 years’ use “as of right”, and a statutory declaration to that effect might tick the insurer’s boxes and allow the deal to exchange. These declarations could, however, serve a bigger purpose and capture useful evidence. Given that lots of disputes arise about people exceeding the physical extent of a right of way or about repair, why not attach some photographs to show the condition of the road and its width? Often, people argue about stopping and unloading on a right of way, so if your seller has been doing that, why not add a paragraph recording it? Ten minutes spent thinking about capturing evidence in the middle of a transaction might save your client months or years of costly litigation.
3. What might be irrelevant to your deal could one day be case-winning evidence
Chances are you will have to sift through old correspondence and old photos as part of a transaction, even if simply when doing post-completion tidying up. Everyone working on property deals, including clients themselves, should be encouraged to see old photos, letters and plans as things which, like old deeds, might one day be important. You or your client might implement a system ensuring that they are kept and, when needed, they are easy to find.
4. Explain the uncertainties to transactional clients
Uncertainty about the law, the meaning of documents and the outcome of trials is acknowledged at the bar in a way I do not think it is by transactional solicitors. While I know that clients will not welcome, and sometimes not pay for, advice which is too hedged with uncertainty, I think the uncertainties described above are often understated to clients on deals or not mentioned to them at all. I would encourage you to be bold about explaining what might happen if a “wrinkle” in the title or transaction documents becomes a full-blown dispute. A sensible client might well then ask you to tackle it head on, rather than simply “take a view” and hope for the best.
5. Read some of Lewison’s The Interpretation of Contracts
Few busy transactional solicitors will have time to read all of Lewison, and this, perhaps, is something the author knew. In the opening chapter of the 6th edition, he summarised the law in approximately 800 words before saying: “The lazy reader may stop here.” I’d turn that around and encourage every busy lawyer to find a copy of the 7th edition (December 2020) and read the 23 pages of the first chapter. In particular, I would encourage you to think about the importance given by judges to words on the page, the purpose of the clause and the contract when compared with whether or not the interpretation works out “badly or even disastrously” for your client.
6. Consider altering your approach to drafting in light of Lewison
That reading might help you better understand which features of your standard precedents, or your bespoke drafting, might lead to disputes. In turn, that might cause you to do things like: (i) include worked examples for overage provisions or rent review formulae; or (ii) use more recitals to explain, perhaps in a way that seems almost too obvious to the parties, what the document is intended to achieve and why the parties are entering into it. That kind of drafting might persuade a judge to find for your client at a trial or, even better, mean that your client never gets into a dispute in the first place.
Michael Ranson is a barrister at Falcon Chambers
