Cut-rate conveyancing–Appellants acted merely as ‘transfer agents,’ sending on documents to a draftsman–Appellants accepted a fee, draftsman made no charge–Convictions on charges of preparing conveyancing instruments quashed–Appellants did not select the words to be used in the instruments in question.
These were
appeals by Mr David Ashford, of Wick Road, Teddington, Middlesex, and Mrs Doris
Green, of Caestory Avenue, Raglan, Gwent, against their conviction by Worcester
justices on June 6 1974 on a number of informations preferred by the
respondent, Mr John Hoyle, of the Law Society, under section 20 of the
Solicitors Act 1957, whereby it was alleged that they, not being qualified, did
directly or indirectly prepare conveyancing documents for fee or reward.
Mr A J
Balcombe QC and Mr D Hogg (instructed by B M Birnberg & Co) appeared for
the appellants, and Mr L Read QC and Mr A Hill (instructed by Richards, Butler
& Co) represented the respondent.
Giving
judgment, LORD WIDGERY said that the background to the case was that the two
appellants together with a Mr Francis Reynolds and others, none of whom was a
solicitor, set up an association called the Property Transfer Association, to
do conveyancing work at considerably lower prices than those charged by the
legal profession. The basis was an ingenious device by which the conveyancing
would be done without fee or reward. The appellants, although they were paid a
fee, claimed that they had remained outside the scope of section 20 of the
Solicitors Act, in that they had acted only as ‘transfer agents’ and had not
drawn any prohibited document. The actual drafting was done by Mr Reynolds, who
made no charge. On July 8 1975 justices of Worcester had convicted Mr Reynolds
of drawing up prohibited documents for a fee, and an appeal was dismissed on
the ground that the fees taken by the transfer agents were sufficient to remove
from Mr Reynolds the protection he had sought. In the present appeal the
appellants claimed that they had not, either directly or indirectly, drawn up
conveyancing documents.
The conception
of preparing instruments ‘indirectly’ was a difficult one. Of course, a person
responsible for composing a document might do it in his own hand, or he might
dictate it to a typist or to a dictating machine. That might be indirect
preparation. In his (Lord Widgery’s) judgment, the meaning of drawing or
preparing an instrument was the use of the mind to select the words to be used,
and it was clear that the appellants had not done that. The preparation of the
documents in that sense was the sole work of Mr Reynolds. Neither of the
appellants had in any sense prepared any document either directly or
indirectly. For that reason the appeals should succeed and the convictions
should be quashed. The present appeal was not a suitable moment to consider the
situation which might arise in a solicitor’s office where a solicitor, having a
number of experienced managing clerks, left them to do conveyancing work and
draw up conveyancing documents without the solicitor having to apply his mind
to the problems at all. It was also not the appropriate time to consider the
situation where a limited company was charged with having drawn up instruments.
Agreeing,
O’CONNOR J said that the concept of drawing or preparing involved the use of
both the pen and the mind behind the pen. A man who dictated to a typist could
be said to be preparing. The documents in the present case had been prepared by
Mr Reynolds and not by the appellants.
Also agreeing,
GOFF J said that the test of preparing was that of responsibility: who was
responsible to the lay client? In the
present case it was Mr Reynolds, not the appellants.
The appeals
were allowed and the convictions quashed, and the appellants were awarded
costs.
