Professional practice updates 2014
Professional Practice Updates October 2014
Since the Lender Exchange final Terms and Conditions were published in the professional practice section of the Society’s website on 30 July 2014 the Professional Practice Committee (“the Committee”) has considered the final Terms and Conditions and raised concerns in relation to Clauses 5.1 and 5.5 (the Law Firm’s Obligations).
The Committee expressed concern in relation to Clause 5.1 as currently drafted which provides that the Law Firm is obliged to supply “data” in relation to the Firm and the Partners etc. Having supplied that data Clause 5.1 goes on to say that “Decision First shall not amend the Data inputted into the System by or on behalf of the Law Firm without notifying the Law Firm”. The Clause does not however say that Decision First will not amend the data without first referring the proposed data change to the Law Firm. It can simply change it and tell the Law Firm retrospectively that it has done so. Potentially this has very serious implications. These implications are exacerbated when taken in conjunction with Clause 5.5 as this provides that the Law Firm is solely responsible for the legality and accuracy of the data input into the System even though it appears that that data can be changed by Decision First without any input from the Law Firm.
Following the Committee’s representations Decision First have given a general undertaking to review the Terms and Conditions and update them based on feedback from regulators and lenders where it is appropriate to do so. We understand that the amended terms will be issued as a global update to all firms who are registered with Lender Exchange as a broadcast message.
Decision First have also confirmed that they will obtain consent from a Law Firm before making any changes to the data which the Law Firm has supplied. In the words of Decision First the reality is that this will only happen when firms ask it to change something that they cannot, as the system does not permit any of Decision First’s staff to amend data submitted by a Law Firm without involving IT and getting into the heart of the database. Decision First have advised that this is something they will only undertake as a last resort and with the permission of the firm/individual in question.
The implementation of the Land Registration etc. (Scotland) Act 2012 on 8 December 2014 (“the Designated Day”) will change many aspects of conveyancing practice. The Property Law Committee has updated its guidance to cover the new statutory duty of care to the Keeper, the new criminal offence, where no or limited examination of title has taken place, notificaitons, pre-registration reports and Registers Direct. This can be found at Section F Division C of the Society’s Rules and Guidance on the website.
Practitioners are encouraged to familiarise themselves with the new guidance, and that published by the Keeper, in advance of the Designated Day. The Keeper’s guidance is currently being added to and can be found at:
(August 2014) Powers of Attorney and Sheriff Baird's Opinion - Update
1. Current situation:- Sheriff Baird issued an Opinion in a case involving Clydesdale Bank to the effect that certain wording which followed a style provided by the Office of Public Guardian was not sufficient to constitute a valid continuing Power of Attorney and therefore such a Power of Attorney was invalid. Numerous other Powers of Attorney use the same style as the one which Sheriff Baird considers to be invalid.
2. The Office of Public Guardian (OPG) have issued a statement to us as follows:-
The Public Guardian has been made aware that the Clydesdale Bank has decided not to pursue its appeal against the decision of the Sheriff at Glasgow. The Public Guardian is conscious that the decision raised a number of issues, including that of the validity of the power of attorney in question. The Public Guardian is in the course of making an application to Glasgow Sheriff Court under s.3 of the Adults with Incapacity (Scotland) Act 2000 in order to obtain directions from the Sheriff on a number of those issues. The Public Guardian does not expect to comment further while that application is pending.
3. The procedure to be followed by the OPG should give an opportunity for PoA validity issues to be fully explored.
4. Meantime, it is noted that Sheriff Baird is a Sheriff at first instance and that his Opinion is not binding authority on other Sheriffs.
5. Further updates will be issued as soon as the information becomes available.
6. Sheriff Baird's Opinion can be accessed from this link:-http://www.scotcourts.gov.uk/search-judgments/judgment?id=3d4d88a6-8980-69d2-b500-ff0000d74aa7