Workshop: Becoming familiar with the National Conveyancing Protocol

Maybe somewhat belatedly, I have turned my attention to the National Conveyancing Protocol, its relationship with the Conveyancing Quality Scheme and how these two things are going to change my working day.

Prior to the implementation of the Conveyancing Quality Scheme (CQS) I would have struggled to name a firm I have dealt with (including my own) that would have utilised the National Conveyancing Protocol. Time was that every initial letter written or received with another firm confirmed the use of protocol forms but not the use of the protocol itself. Now, members of the CQS are contractually bound at clause 4.1.2 of the CQS Practice Agreement to comply with the protocol from the date of accreditation. Of course, more and more pressure is being put on firms, on one hand by lenders and on the other by the sheer volume of firms signing up, to become members of the CQS and, as such, it is clear that it is only a matter of time before the protocol is used in every transaction.

The rotocol was first introduced in 1990 as a means to standardise and streamline the conveyancing process. Conveyancers were recommended to use the protocol but it was not essential and, further, it was important that each solicitor informed the other at the earliest opportunity whether or not they were intending to use it. A variation to the protocol should have been recorded and departure from the protocol where it was being used could have amounted to professional misconduct.

It was far easier, then, to simply confirm that the protocol was not being used in every transaction even if the general conduct of the file would ultimately have met all the protocol conditions.

The latest version of the protocol came into force on 1 April 2011 following the introduction of the CQS on 1 January 2011. The protocol states at the outset, the general obligations of each party, which amount to being vigilant, fair and maintaining high standards. The essence of the general obligations run throughout the protocol and there is a real sense that the purpose is to put everyone on a level playing field by standardising documents and streamlining the process. For example; conveyancers are to use a standard contract and not make any alterations unless they are necessary under current law or under instruction from the client. It is also a requirement that only specific additional enquiries are raised based on information supplied to and obtained by the buyer’s conveyancer. This will reduce the pages of standard pre-contract enquiries which are sent through which have no bearing on the transaction in hand or which simply repeat those queries set out in the property information forms.

While the protocol remains a recommended tool for those firms not yet signed up to the CQS; I think it is only a matter of time before all firms are adhering to it either through CQS accreditation or simply to help reduce their insurance risk.

Having read the protocol and articles around it, I can say, quite categorically, that there are no requirements or obligations within it that are substantially different or more onerous than my previous way of dealing with a transaction. From an indemnity risk point of view, utilising the protocol can only help to minimise risk and reduce premiums for firms. However, it is also important to consider that not acting in accordance with the protocol may jeopardise a claim with your indemnity insurer if it can be established that there was no good reason for it not to be so used.