Professional briefing - The Journal Online

Janette Wilson, Convener of the
Conveyancing Committee replies:
Contrary to the impression given by
Mr Paterson, the Society has been
consulted by Lloyds Banking Group
(LBG) over the past year in
connection with various panel
issues. Unlike some other lenders
LBG has been willing to engage with
us in connection with such matters.
Last autumn, LBG advised us that
it had made a policy decision not
to release discharges until it had
received funds in redemption of the
relevant loan. The rationale for this
was that a significant number of
discharges issued prior to settlement
had found their way on to the
register without the loan being
redeemed. LBG assured us that the
discharge would be issued within
14 days of receipt of funds, to enable
firms to comply with the usual
undertaking to deliver same to the
purchaser’s agents within 21 days.
This was a risk management decision
made at UK level and affected all
subsidiaries within the group. As we
explained to Mr Paterson at the time,
while this may prove inconvenient
for our members LBG is entitled to
proceed on this basis.
LBG consulted us about ARTL in
April. It has particular concerns
about delays in registration of its
securities, which are significantly
greater in Scotland than in the other
UK jurisdictions. Of course much
of this is due to the registration
process itself, which is outwith the
control of solicitors. Nonetheless, it
represents a significant risk. If the
registration application is
withdrawn or rejected for some
reason this means that the loan is
unsecured. When ARTL is used the
register is updated within 24 hours
of settlement and accordingly there
is virtually no delay in the
purchaser’s title and lender’s
security being confirmed. Against
this background, LBG decided to
amend its panel membership
criteria to make the use of ARTL
mandatory, where possible, with
effect from 1 September.
LBG is aware of the limited scope
of ARTL and that both parties’
agents require to hold an ARTL
licence before it can be used for a
particular transaction. After we
raised concerns regarding the
timescale for implementation of the
changes, LBG confirmed that firms
which have timeously applied for an
ARTL licence will not be removed
from the panel after 1 September if
that application is still being
Our members should be assured
that we shall take every
opportunity to... resist measures
which would adversely affect them
this is not due to lack of
published information on this
particular issue.
I am aware, having delivered
papers to the Judicial Studies
Board on a number of
occasions, that the use of these
two provisions continues to
cause widespread confusion,
but at the risk of being accused
(correctly) of blowing my own
trumpet, the operation of ss 16
and 17 was the subject of an
article in Scottish Criminal Law in
February 2008, can be found in
the updated Stair Memorial
Encyclopedia volume on Penal
Institutions, and in “Prisons,
Prisoners and Parole”.
www.lawscotjobs.co.uk
I have long lobbied for this
information to be made
available to the courts in a more
easily comprehensible form than
is currently the case, but am
aware that prosecutors often do
not know whether or when a
prisoner has been returned to
custody (especially if they are
also remanded in custody in
terms of the 1995 Act), while
defence agents tend to be
dependent on their clients being
able to provide accurate
information. I am aware that as
recently as 2007 the Crown
Office and Scottish Court Service
did not have access to the
Scottish ministers’ or Parole
processed by Registers of Scotland.
The Society has consistently
supported the ARTL system and
encouraged its use, recognising the
benefits for both the profession and
the public, particularly from the risk
management perspective.
Ultimately, lenders are entitled
to determine the criteria for
membership of their various panels,
as well as the basis on which they
instruct solicitors to put in place
securities on their behalf. Most of
them have had to take urgent action
to stem losses on their loan books,
some of which have resulted from
solicitors’ negligence or even fraud,
and accordingly have been looking
to manage their solicitors’ panels
much more strictly. Many claims on
the Master Policy arise from such
losses and it is clearly in the interests
of all our members that we work
with the banks to address this issue.
Our members should be assured
that we shall continue to take every
opportunity to engage positively
with lenders and to resist measures
which would adversely affect them.
A Registers of Scotland
spokesperson added:
The decision by Lloyds Banking
Group that “all panel solicitors in
Scotland would have to be signed
up to ARTL to remain on their
panel”, is entirely a matter for
Lloyds. RoS welcomed the
announcement as it believes that
customers of firms using ARTL, and
the firms themselves, benefit from
the faster, more secure and cheaper
service ARTL provides.
Board’s databases in respect of
recalled prisoners, and it may be
that there is still a difficulty in
the obtaining of up-to-date
information. In this particular
case, it occurs to me that, as the
appellant was already in custody
on remand, his solicitor could
only have ascertained the true
position by asking whether he
had been served with a recall
warrant by Scottish ministers in
terms of s 17, as this
information could not under any
circumstances appear on his
schedule of previous convictions.
Douglas Thomson, Solicitor Advocate,
McArthur Stanton, Dumbarton
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Charles Stoddart writes:
In para [2] of its opinion in Stuart
the court refers explicitly to the
discretionary power of the
ministers to revoke an offender’s
licence and recall him to prison,
which is a reflection of the
statutory language used at the
start of s 17(1), where the word
“may” and not “shall” is used.
Only the ministers can “operate”
the section by the exercise of that
power. That said, it is, however,
difficult to envisage a situation
where the ministers would ignore
a recommendation of the Parole
Board to revoke a licence, but the
terms of the statute would seem
to suggest that they can.
July 2010 theJournal / 9