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The judge at first instance refused to allow the Claimant to call evidence from an expert conveyancing solicitor. The case went to the court of appeal. The appellant failed.

Simon Brown L.J. said at page 134,

…It seems therefore plain that the essential reason why the judge refused to make the order was because he regarded the proposed expert evidence as irrelevant and inadmissible and such as would essentially have presumed to usurp his own function. In so ruling he no doubt had in mind the judgment of Oliver J. in Midland Bank Trust Company Ltd v. Hett, Stubbs & Kemp [1979] 1 Ch. 384, 402… (this case appears under a separate entry)…

The appellant’s…argument goes to the substance of the judge’s decision. [The appellant] submits that the judge was wrong to take the view that a conveyancing expert would be unable to give relevant evidence properly illuminating the issues that fell for resolution in this action. As became clear in the course of argument before us, the central question raised here is whether or not the respondent’s solicitors acted reasonably in the steps they took to investigate the grantor’s title to grant the vendors the right of way purportedly granted by the conveyance to them.

[The appellant] submitted that what the solicitors should have done is a matter of practice such as falls into the category of evidence that is properly the subject of admissible expert evidence within Oliver J.’s formulation in Midland Bank. That, however, in my judgment, is a fundamental misconception and it underlay all his submissions on the point. What solicitors should properly do in the very particular and highly individualistic circumstances of this case is by no means a matter of practice. It is a matter of law to be resolved by the judge.

Each of the seven respects in which the appellant’s solicitor’s first affidavit sought to contend that expert evidence would assist the court, proves, on analysis, to involve either a question of law or a question of fact. None of those matters can sensibly be regarded as inviting a view as to “some practice in [the solicitors’] profession, some accepted standard of conduct … laid down … or sanctioned by common usage”.

I entirely share the view of the judge below that, on the contrary, the evidence here sought to be adduced falls foul of Oliver J.’s dictum. It would amount to no more than an expression of opinion by the expert, either as to what he himself would have done , which could not assist, or as to what he thinks should have been done , which would have been the very issue for the judge to determine.

In his judgment, Millett L.J.said at page 135-137,

I agree and add a few words of my own on the conveyancing aspects of the transaction….

None of this requires the assistance of expert evidence. In the affidavit in support of the application for leave to call such evidence, the appellants submit that an expert conveyancer would assist the court in establishing a number of matters. It is not necessary to read them all, but three of them are as follow:

(1) good practice in establishing the existence of the right of way;

(3) the need for a site visit; and

(7) was there anything to put the defendants on notice?

[As to 1] Good practice in establishing the existence of a right of way is the ordinary machinery of investigating title. That is a matter of law and not practice. It does not require to be established by an expert witness.

[As to 3]  It is also a question of law whether the purchaser’s solicitor was under a duty to inspect the property.

Item (7) …puts the question the wrong way round. It was the respondents’ duty to investigate the vendors’ title and to satisfy themselves that they had deduced title; the presence or absence of notice is irrelevant.

All these are matters of law, not practice. It is true that over 250 years ago in Basset v. Basset (1744) 3 Atk. 203 at page 208, Lord Hardwick said:

“The uniform opinion and practice of eminent conveyancers has always had great regard paid to it by all courts of justice.”

But that was a reference to the uniform practice of eminent conveyancers of an age long past.

Two hundred and fifty years later the practice of investigating title has settled down sufficiently to be well established and recorded in the textbooks.

 If it is necessary to assist the judge to understand the proper machinery for the deduction and investigation of title, the proper way to do it is to cite the textbooks such as Emmett, Farrand, Williams and Dart, if necessary supplemented by Law Society opinions.

In fact, this is a straightforward case in which I doubt that even such references would be necessary. I deplore the suggestion that it is either helpful or necessary to call evidence from high street solicitors whose individual practices may be eccentric and differ and whose practice certainly does not make the law of the land.

Edited for ease of reading. Midland Bank is cited elsewhere under the same tag.

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