It is a confusing time to be a conveyancer. Purrunsing v A’Court held that a buying solicitor was jointly liable with a selling solicitor when identity fraud was committed, as the buying solicitor asked what ID checks had been carried out but (in the court’s view) did not properly deal with the responses. I marched my team into the boardroom at once and told them that it is probably better not to ask about the selling solicitor’s ID checks at all (with a few exceptions).
Now Dreamvar (news, 6 February) finds a wholly innocent Mishcons liable because (among other things) they did not obtain an undertaking from the selling solicitor that they had carried out reasonable ID checks. I marched my team back into the boardroom for our latest policy change only to realise that I no longer know what to do. Ask about ID? Probably liable. Not ask about ID? Liable again. I concluded that I should ask for the undertaking from the seller’s solicitors and, if they refuse to give it (as many will do and I don’t blame them), then report to the client and let them decide if they want to take the risk. But what about my lender client? I can already see them batting it back to us for it to be our decision again or (with apologies to lenders who give clear responses) sending back a response that makes things no clearer – so we bat the issue back and forth until I give in and take the responsibility, as usually happens because the client is desperate to exchange.
Maybe CML and CQS could help by clarifying how we should deal with this as best practice; not that this will help us as it was accepted in Dreamvar that Mishcons complied with best practice. In Dreamvar it also seems that Mishcons were found liable as they held the best insurance. If that is the new standard, then it is also time for a reasonably priced indemnity insurance policy to be available on a case-by-case basis to protect against identity fraud of the seller, so that the cost can at least be passed on to the client.
Angela Neale, partner, Comptons Solicitors, London NW1