Despite bureaucratic inertia and the conservatism of the legal profession, legal forms, I suggest, are about to undergo revolutionary changes.
There is nothing like an example to illustrate what one is talking about. I will take as an example an online form that is currently available, and discuss the kind of improvements that could be anticipated.
Many will agree that the availability of forms on the Irish Courts Services website is a significant step forward. Figure 1 shows an Originating Summons from that site. There are several fundamental improvements that can be made to this form.
The first improvement relates to the fact that, at present, a user must traverse through the form to insert the details of his particular case. This would be avoided by inviting the user, at the outset, to type in all the case-specific details (as in Figure 2: be patient, it may take a minute for this form to load). Then, the computer system would automatically insert the details into the blanks and present the completed form to the user. There would be a “Proceed” button the user clicks when he has completed the details, and a “Cancel” button to enable him to abort the process instead of proceeding.
Notice that Figure 2 does not invite the user to insert the name and address of the Plaintiff’s solicitor. It is envisaged here that a solicitor would identify himself to the Courts site by “registering” with the site on an initial visit. Subsequently, the Courts’ computer system would automatically enter his details whenever required. (Of course, a solicitor might communicate with the Courts site via his secretary or legal executive.)
The Form as shown in Figure 2 allows for any number of Plaintiffs and Defendants to be inserted. The available number of boxes increases as additional names are typed in. A little elaboration would facilitate the insertion of Companies as well as natural persons.
The Form bears both a “Case Number” and a “Document Number.” Every court action would, of course, have a reference number, here called the “Case Number.” Since an Originating Summons would be the first step in a court action, the computer system would generate the Case Number on the initiation of this form. If aborted, the Case Number would become available to the next user.
Every document generated by future systems would also have its own unique Document Number. This is of secondary importance to the user, since it is the Case Number that links all the forms associated with a particular action. As well as having a unique Document Number identifying the present instance of the Originating Summons, there would be a Template Number identifying the Document Template. The system would hold a store of templates for forms to meet any occasion.
Documents relating to an action that has already been initiated would commence by selecting the Case Number from a drop-down menu in the Form’s template.
At this stage, we are coming to the realisation that filling out this proposed form could not only give us a document, it could, also, at the same time, initiate a record in the Courts’ database. Our form would, in other words, combine the functions of data entry with the generation of a legal document. This is par for the course. Future legal documents will, I suggest, be generated by a data entry process.
Because of this dual function, future forms could trigger the reengineering of legal systems, bringing immense efficiencies. In this reengineering of systems, the boundaries between organisations would become blurred. Figure 3 is a diagram showing a local area network in a solicitor’s office connected via broadband to the Internet. The Courts computer and the Land Registry’s would be virtually as available to the Solicitor as is the server that stores his own computerised records in his own office. When he clicks on the Courts or Land Registry icon to interact with their online forms, he would be directly entering data onto their systems.
Now, here we have the solicitor sitting in his office. With a click he opens up a template for a document in the Courts or the Land Registry. He wants to initiate a court action or a transfer. In either case, one of the parties will be his own client, whose name and details he already has in his own clients’ database. He may even have the other party on a “third parties” database on his computer. The future system would, therefore, offer him the facility to enter the details of one or both parties into the form “from File” rather than having to type them in. When he clicks the “ Insert from File” button (in Figure 2), his PC presents the available databases to his screen (e.g., “Clients” and “Third Parties”), and he makes his selection of the appropriate party by a few mouse clicks. The benefit of having this facility is more than the labour saved in not having to type in the names and addresses. It is that it reduces the chances of an error creeping into these details. Since every instance of a subject would be copied from the database, the data would be totally consistent. If a change is to be made to a name or address, it is done in the database, and thereafter the change can be propagated to all appropriate places from the database.
The idea of a solicitor directly entering data into the Land Registry’s or the Courts’ system is bound to come up against resistance, and there may be intermediate steps between the present system and the future system we envisage here. In particular, the data entered by a solicitor might be held in a provisional state and be the subject of some internal scrutiny, before becoming permanent. Ultimately, a contract would be struck between solicitors and these services that would allow the direct entry of the data by the solicitor.
Let us now have another look at the form in Figure 1. When you downloaded this form from the Courts system, you noticed that the text of the form is locked, and the only changes you can make are in the details you are asked to insert. This is a very handy feature. When one of these forms is served on your client, you know exactly what is in it. If you have read a similar form before, you don’t have to scrutinise the text and consider its meaning and effect. You already know its meaning and effect, and you can focus your attention on the case-specific details, knowing that the body of the form contains no surprises.
Wouldn’t it be a significant improvement if the same could be said about conveyances, and deeds in general? If you didn’t have to go through deeds with a fine-toothed comb, alert to the possibility of little surprises emerging, like faulty words of limitation or tiny negative covenants hiding among the verbiage!
A Land Registry official, brain-tired after a day’s work, was examining a dealing. The document was headed “Folio X County Y: Transfer.” In the operative part the document said “ (the registered owner) transfers the property comprised in the above Folio edged red on the attached map to (the transferee).” The official failed to notice that the transfer was of only part of the Folio, and proceeded to register the transferee as full owner of the entire Folio. A mistake had now been made in the Land Registry; the registered owner of the balance of the Folio lands had been deprived of his property, and ultimately, the state was compelled to pay compensation (Leonard’s case, Supreme Court, unreported, 15 December 1982).
Future conveyances can avoid such errors. In the first place, each deed would do exactly what it says on the tin. You want a transfer of the entire Folio, you click a button making the appropriate selection, you are then prompted to enter the case-specific details; the data is presented to the Land Registry’s computer and the appropriate transfer deed is composed by the system.
In the second place, there would be no need for scrutiny of the deed by a Land Registry official. You have presented to the system the exact result required (e.g., replacing the registered owner by the purchaser), you now confirm that you have printed out the deed and give your certificate, as a solicitor, that the deed has been duly executed by the parties. The system looks after the collection of the Stamp Duty and Land Registry fee. What more is there to scrutinise and check? It is possible that you would be required to deliver the paper deed for filing to a document repository, but its exact contents are already known to the system, which can produce an exact copy at any time, and a solicitor has confirmed securely to the system that the document actually exists and has been executed. This should be ample evidence of the legal existence of the document.
What more is there to check? The officials of the Land Registry at present check that the necessary forms and documents are presented for the requested registration. In the system of the future, the solicitor would specify the required registration to the system, and the system itself would prepare all the necessary forms and prompt all the necessary details and certificates for the completion of the registration.
The officials of the Land Registry check that the transferor is one and the same person as the registered owner, that the documents contain the necessary words and phrases to effect the required change, that the necessary certificates and stamp duty are contained and endorsed, and that the signatures of the parties are appended and witnessed. The same confirmations will be requested from the solicitor by the future system, which will also calculate the stamp duty and fee and deduct it from the solicitor’s account, on receiving his confirmation that the transaction is to proceed.
As to Transfers of Part: I have suggested in my Thesis that this type of transaction be broken down into two parts. First, a recognised surveyor would identify the part to be transferred on the Land Registry’s online map (coming soon to a screen near you). The Land Registry’s system would thereupon give a separate unique identity (plan number) to the part. Next, a solicitor would interact with the Land Registry’s computer to do a straightforward transfer of the plan. (Have I mentioned that a transfer could be of either a Folio or a Plan, - since a Plan will have a unique identity in the Land Registry’s system when the Map is computerised?)
The Land Registry has, in fact, quite recently taken a step forward in this area. In respect of development schemes, a recent change in Land Registry practice assigns Plan Numbers to all the sites on a submitted Scheme Map, and thereafter the transfers of individual sites are done by transferring the site by reference to the Plan Number, without the need to submit a map with each site transfer.
What, you may ask, about reservation of rights of ways and easements, and what about covenants and conditions, and all the rest of the things we like to complicate our land law with? Well, any kind of thing you like to mention can be the subject of a template held within the system; and any matter not contained in an existing template could be submitted for filing as a template by a practitioner. (Here, now, is a new job for the Land Registry’s lawyers: that of scrutinising submitted templates, engaging in discussions with the Law Society over the appropriateness and acceptability of new templates, and recommending templates to the Land Registry Rules Committee).
And what, you may ask, would be the position concerning unregistered conveyancing? I suggested as long ago as 1989 (in the “Blueprint for Registration of Title in the 21st Century”), and repeated in my Thesis, that the Registry of Deeds ought to be closed to new registrations, and all new deeds registered in the Land Registry instead. Long threatening comes at last. The implementation of e-conveyancing, promised by the current Minister for Justice would, surely, see the end of registration of deeds and the automation of Land Registration.
Preparation of unregistered deeds would be quite similar to that of the preparation of registered deeds. There would be an initial step where a recognised surveyor would present the boundary details to the online Land Registry Map (coming very soon). The system would give the parcel a Plan Number. The solicitor would then fill out a template form on the computer screen specifying the grantors and grantees, the Plan Number, the nature of the transaction and the nature of the estate or interest affected by the transaction. From this, the system would draw up the deed and devise a Folio describing the property and its owner, (together with the charge if the deed is a mortgage).
An example of how a future conveyance of unregistered property might look is given in Figure 4.
Registration would be with “Qualified Title”, the qualification being that the registered title commences with the deed specified. Converting the title to Absolute would continue to be a process requiring scrutiny by an Examiner of Titles, or a certificate of title by a Solicitor or a Barrister, with or without an Insurance Indemnity Bond.
Wait one minute, you say. In all the above cases, the computer system has generated a legal document, which the solicitor has requested. The document has been drafted unerringly by the system in accordance with the details supplied by the solicitor. What if, on reviewing the document, the solicitor makes changes therein? What then of your automatic registration? Your registration has been of the document as drafted by the system, not the document as changed by the solicitor and executed by the parties!
The answer to this is clearly that nobody will be allowed to alter a document as generated by the system. If the requested document were incorrectly specified, there would, within proper controls, be a provision for the abortion of the transaction and subsequent generation of the correct document. In the meantime every document emanating from the system would contain the reference number of the Template from which it is drawn, as well as a warning that “This is a document corresponding to Template Number XXX. Any variation from the text contained in that template is void and without legal effect.”
This requirement suggests a further comment on the design of Future Forms. As I suggested above, every legal document would contain the Number of the Template from which it is drawn as well as the case-specific details. The actual inclusion of the entire legal text in the document would possibly be optional. The physical document could refer to the text by reference to the Template Number, rather than actually reprinting all of the text. (Template texts could be accessed at any time on the system). Case-specific details would not be embedded in the body of ther text, as they are in the form in Figure 1, but would be given in a separate part of the document, and the actual text of every form would be drafted in a way that covers single or multiple parties, corporate or natural persons and persons of both genders. Those familiar with the function of particular templates would no longer have to read the actual text of the document, (except as a refresher, when needed), and could contain their scrutiny to the case-specific details. The text of all Templates would be available on the system.
One last point. The Form in our example (Figure 1 and Figure 2) contains provision for free text (where it says, “Insert details of Claim”). Future forms should avoid as far as possible the inclusion of free text. Variations of text should, in general, be filed as templates in the system and offered as choices to a Solicitor creating a Document. For example, different collections of Covenants and Conditions could be listed in a menu as:
Covenants and Conditions [Industrial Estate var 1]
Covenants and Conditions [Industrial Estate var 2]
Covenants and Conditions [Condominium]
Covenants and Conditions [Apartment Block]
Etc.
Where a Solicitor has concocted covenants and conditions (or other matters) different from those already contained in the system, there would be provision for him to submit these as an additional template.
Where a choice of different texts is to be inserted into the body of a document, (such as the “details of claim” in our Originating Summons), the Form would provide a drop-down (or pop-up) menu from which a choice of texts would be available, including, if necessary, a “free text” option. (This drop-down menu would be provided by the “Select” button in Figure 2).
In summary, legal documents should, in the future, I suggest, be generated by computer through a data entry process. Solicitors would interact directly with services such as the Courts and the Land Registry and would enter data directly into their databases. Official scrutiny would diminish, and shift to controlling templates rather than supervising dealings. Legal Documents would correspond strictly to filed Templates. The Land Registry Map will be online and parcel changes could be effected by direct entry by recognised surveyors. Bureaucratic resistance may delay the implementation of these changes, but, I suggest, cannot ultimately prevent them.
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