Who knew? There are two eight o’clocks in the day!

The news that Durham’s law department is to schedule lectures for first years at oh eight hundred hours must have made some students wonder whether their “fall back” uni choice was not a better option. Going that far north (almost in Scotland) will be shock to the many Southerners who make the September trek up the Great Northern Road. Discovering that there are actually two eight o’clocks in the day may cause serious unhappiness for first year undergraduates.

And not just for the students. What about the lecturers?  Those poor southern babies excited at their first academic post, shining doctorates on legal theory at the ready.  And then the grim reality of a lecture theatre full of sleeping children, happily oblivious of the complexities of section 53(1)(c) LPA 1925, or the rule in Shelley’s case.

The papers say – and I have no inside knowledge – that it’s only for a year until the new building is finished and everyone can go back to a nine o’clock start. It seems rather careless to recruit more students than you have room for, but no doubt entitled bottoms on seats are needed to pay for the state of the art* accommodation.

I wonder why Durham didn’t take a bold step – which could also be extolled in suitably hyperbolic prose – and abolish – or at least suspend – the lectures altogether. Lectures no doubt had their place when books were rare and purposely written in small, dense type to make the writer look even cleverer.  As a neophyte, you would have needed some knowledgeable type, who had better eyesight and more patience to explain things to you.  Is that so necessary, now there are a whole plethora of books for all attention spans and abilities.  Some law textbooks even have pictures, and colours and diagrams!

Some lecturers, a very few, bear you heavenwards like Peter Pan guiding you past the second star on the right and then straight on to a life time love of their subject. In my own limited experience, Professor Burn did this for land law.  Alas, though, most lecturers are not Teddy Burn, nor do universities seem to audition their lecturers for golden globe potential.  Some lecturers read from their own text books – which is probably good practice for aspiring barristers – others vie with each other to see how many words can be squeezed onto one power point slide.

I’ve also noticed that many students ignore lectures and lecture notes, and rely on power point handouts and crib books of A5 dimension. I was gratified when one of my students once reproduced my choicest bons mots and she automatically got a starred first†.

Recorded lectures, on demand, Netflix style are also good. They can provide a reassuring soundtrack for club rugby on the television, and can comfortably be combined with playing on your phone. You can feel virtuous that you’re doing some work, whilst catching up on the backlog of recordings clogging up Sky.  I’ve got my doubts, as to the efficacy of that, but perhaps it’s my age.

Perhaps I’m being cynical. Just perhaps eight o’clock will be the perfect time for English Legal Systems and contract law and the marks and the student engagement will increase. I would have thought lectures into the night were the way forward.  At least it will prepare the little darlings for those long years of all-nighters in their City firms.

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Conveyancing: a pas de deux, not a Dad dance

First Tower Trustees Ltd & Anor v CDS (Superstores International) Ltd

[2018] EWCA Civ 139

Many of our readers will have bought residential property, and have been told (or should have been told) that the principle of “buyer beware” obtains. A  vital exception is made for the seller’s solicitors written answers to the buyer’s particular questions.  Here, the sanctity of this exception is underlined, albeit in a commercial property situation.

Returning to resi, for a moment, an example that could happen to any one of us. My pre-contract enquiry asks “What are your neighbours like?” Answer:  “There was a bit of bother five years ago, but everything is lovely and quiet now”.  I move in.  So do the chapter of Hells Angels who return home after release from a ten stretch. They resume their happy hell raisin’.   I will have a claim for breach of contract against my sellers, and it’s quite likely that the court will rip up the agreement.

The same procedure, albeit with bells on, is used in commercial property, though rescission of a lease is very, very unlikely. With commercial leases, however, rescission is unlikely. First Tower Trustees pits two Guernsey based trustee companies as landlords against a large retailer tenant of a ‘shed’ in Barnsley:  big boys and big boys’ rules.  (The tenant, trading as “The Range”, is an out of town retailer of decorative domestic Stuff that no one really needs.)

This deal made headlines in 2015 (if you read that kind of publication), and has been keeping lawyers busy since. No sooner had CDS moved in, they discovered asbestos  contamination. Obviously asbestos laced frou-frouery isn’t quite the thing, so a spot of decontamination was necessary.  CDS then (counter) claimed against the landlords for their losses: decontamination and short term alternative storage.

Commercial property ingenues may be a bit surprised that the landlords bothered to defend the claim. Perhaps, you thought, a bunch of flowers and a bit off the rent would be a judicious opening gambit. At first instance, before Michael Brindle QC, the landlords went down heavily, but nothing daunted got up, dusted themselves off and called a re-match.  Maybe they were hoping to sneak home on points in front of an appellate panel, more interested in human rights and fluffy family fortunes, a possibility when the listing office wants a bit of a laugh.

Their hopes were dashed. Lewison LJ was sitting with George Leggatt, a retired Brick Court heavy weight.  Their wing man was Colin Rimer, who has an impressive record of being overturned on appeal.  I guess he welcomed a slot on this bench as a retirement alternative to his usual in the park feeding the pigeons.

Let not frivolity, however, cloud my serious match commentary. XXIV Old Buildings’ veteran, Alan Steinfeld knew he had to lead with his chin. When asked by the buyer, in the routine CPSE form about contamination, the landlord had insouciantly suggested the buyer make its own enquiries.  Well, that’s kind of legit, but showing CDS a clean report “accidentally” about a different shed is hardly Queensbury rules.  How was the Anthony Joshua of the Chancery bar going to punch his way out of this one?

As you all know, the common law takes the view – with big boys at least – that they can agree pretty much whatever they like, and not come crying to teacher when it all goes wrong. Even for big boys, however, this bracing robustness is tempered by the Misrepresentation Act 1967:  if the misrepresentor can prove that they had reasonable grounds for believing their own tall stories, and did in fact believe them – note this double test – then it might just get away with it.

On the evidence, the landlords knew full well that the shed was asbestos ridden.   Did that cook their goose? You don’t need to have been in practice since the Moon Landings, to point out that big boys can exclude or restrict liability for pre-contractual wishful thinking.  As long as –  yes, there’s always a proviso –  section 11 of the Unfair Contract Terms Act 1977 doesn’t think it’s going a bit far.

The landlords, advised, by Olswangs as was (now the firm with the longest name in London) had inserted the standard ‘tall stories mitigation’ clause, declaring that CDS hadn’t relied on any pre-contractual blandishments before entering the contract. As is standard, the tenants solicitors would have amended this up to except the solicitors’ written responses to the CPSEs

Kim Lewison had fashioned a useful tall stories measuring stick in FoodCo v Henry Boot, which the senior judiciary has run with it ever since.  It’s what you’d expect:  equality of arms, equality of advice, term open to negotiation and most importantly if your tall story is written down by your lawyers, then that’s sacrosanct.

Oh dear, Muhammad Ali, of Lincoln’s Inn, how will you get off the ropes? You, dear reader, will already of guessed.  Don’t call it an ‘exclusion clause’ call it a “basis of contract” clause.  A basis of contract clause does not limit liability, oh no, so it is outside the mischief of the Act.  It says: “the ball park is the four corners of this document, and there’s no documentary landscape outside of it.”

Contractual estoppel is fairly well established – think Springwell (slight chortle there) and Peekay. Heavyweights can agree to enter a contract on an Alice in Wonderland basis, if they show so chose, with no regard for the facts on the ground.  So urged our prize fighter, but Lewison LJ was dismissive.  Leggatt LJ, riffing on Lewison, had little patience too for the estoppel fantasy.  Contractual estoppel prevents liability from existing at all. It does not exclude a liability created independently by statute existing.  You can deem that you are wearing a prophylactic for congress, but if pregnancy results, you must accept that biology trumps make believe.

It’s wasn’t a hard case to decide. I imagine everyone had a good time (except the landlords) as it’s always nice to see clever people on top of their game.  Significantly, and this is the realpolitik qua Kim Lewison, if this sort of exclusion clause were allowed to flourish, commercial conveyancers can hang up their boxing gloves and go home.  Otherwise, the perfect non-reliance clause would become a holy grail whose pursuit generated many chargeable hours, but would hardly be a Good Thing for the market.

Will this go off to the Supremes? Hardly.  We need a purely commercial case to get the basis of contract v exclusion of liability clause question sorted out –  conveyancing is a traditionally choreographed pas de deux, not a drunken dad dance at a PTA Christmas party.