REPORTS OF COMMITTEES
| Date | 01 May 1983 |
| Published date | 01 May 1983 |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02521.x |
REPORTS
OF
COMMITTEES
AFTER
BOLAND:
LAW
COM.
NO.
11
5
Boland
was no
Ainsworthea
Arguments based upon conveyancing
practice received !short shrift, and Lord Wilberforce was cutting on the
subject. Lord Scairman invoked social justice, a concept rarely heard
outside the Court of Appeal in a case concerned with the interpretation
of the Land Registration Act 1925.3 Nor was it
Pettitt
4:
contemporanea
expositio,
or,
less grandly, the
“
policy of 1925,” was not allowed to
divert attention firom the ordinary meaning
of
the statutory language.
No wonder the caLse could be heralded as the dawning of a new day, as
a
Gemeinschafr
type decision, or, with less of a flourish, as generally a
good thing.
The Law Commission does not agree and thinks
Boland
is a bad
thing.6 Not because the Commission is against social justice, but because
the courts severe!ly underestimated the practical difficulties caused
by
such a decision. It therefore recommends that something should be
done to improve the position. It is not easy to assess these practical
consequences
:
the Commission’s evidence seems largely to be drawn
from professional opinion; few actual instances are given, and with any
legal regime, one or two instances of litigation
do
not in themselves
prove the need
for
reform: two swallows, after all, do not make a
summer.6 We should not lose sight of Lord Hailsham’s observation
in the recent debate on the Report in the House of Lords that
Boland
“
,
.
.
has been part of our law for over a year now, and
.
.
.
conveyancers
have come to teinns with it-and come to terms with it fairly well.
Contrary to their predictions, the world has not come to an end as a
result
of.
.
.
Eolmd
.
. .”
If one must rely upon the evidence of interested parties (and how
exactly are we
to
judge how extensive the inquiries made by con-
veyancers should be, what is acceptable thoroughness and what
onerous and excessive inquiry-who, in the end, can gainsay the experts
concerning their own procedures?) it is difficult to dispute the Com-
mission’s conclusion on the need for reform. In this comment,
I
assume
that the risks are as great as the Commission thinks and ask whether
the solutions proposed are satisfactory (my conclusion is that they
are not).
A few prefatory remarks are in order. The
Boland
problem-of
conflicts between equitable co-owners and
“
purchasers ”-arises
only
Williams
&
G1yd.s
Bank
v.
Boland
[I9811 A.C.
481.
National Provincial Bank
v.
Ainsworth
[I9651 A.C.
1175.
The Ancien R6gime
”’
(1981)
44
M.L.R. 630-632.
Peirltt
v.
Pertirr
119701
A.C.
777.
Law
Corn.
No.
115,
Cmnd. 8636 (1982).
See
Law Corn.
No.
115,
para.
58
(where
Re
Sharpe
[I9801
1
W.L.R.
219
and
Easron
v.
Brown
[1981]
3
All
E.:R.
278 are drawn upon).
H.L.Deb.,
col.
662 (December
15,
1982).
*
For
a discussion
of
Lord Scarman’s judgment,
see
Murphy
and Rawlings,
”
After
330
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