Another moan about CQS

Readers of this blog will know by now that I am not a fan of the Law Society’s Conveyancing Quality Scheme (“CQS”) – it introduces an extra layer of paperwork, administration and cost that (in my view) does nothing at all to protect clients, other conveyancers or insurers, as it simply replicates what the Solicitors Regulation Authority and professional indemnity insurers already do.

I believe most conveyancing solicitors who joined did so only because they think it will improve their chances of staying on lenders’ panels – and as a result of the Law Society’s marketing of CQS as some “woo” that magically makes CQS members better conveyancers than non-members, this is probably true; Santander, for instance, insist that all its panel members are CQS members, though I think this is more to slim down their panel than because they think CQS membership actually means anything. It is significant, I think, that CQS membership is only open to solicitors, yet Licensed Conveyancers are on lenders’ panels, so CQS membership cannot be as important as the Law Society likes to think.

However, more and more solicitors, even CQS members, are finding themselves “bounced” from lenders’ panels, usually with no reason given. The fact is that lenders do want to slim down their panels, because their own regulator has told them to do so, the theory being that they can develop a deeper relationship with a few panel members than they can with many, and a deeper relationship should (in theory) enable them to spot when things might be going wrong and act quickly.

So, I reckon the future for CQS is going to look bleak: it will not be the guarantee of panel membership that is currently pretends to be and, with lenders likely to keep slimming down their panels, separate representation of buyer and lender is likely to become more and more common – not necessarily a bad thing, in my opinion.

Meanwhile, however, CQS – or, more accurately, the Law Society’s “Conveyancing Protocol”, which CQS members are obliged to follow – is becoming a way of dumbing down for conveyancers. It is now getting to the stage where conveyancers (both solicitors and Licensed Conveyancers) are arguing that if something is not provided for in the protocol, then it is not necessary. This ignores the fact that the protocol covers, as intended, only the routine elements of a conveyancing transaction. It does not cover – it cannot cover – unusual circumstances, or even circumstances that were unusual when the protocol was developed.

I have several current instances where there are encumbrances on a seller’s title that only the seller’s lender can remove, and the seller and their conveyancer has no control over when this will be done. In most cases, the seller’s conveyancer resists the suggestion that, if there is a delay in removing the encumbrance, then the seller should assist in getting it removed by the Land Registry – despite the fact that it is the seller who would be, in law, in breach of contract by not transferring an unencumbered title.

Despite being lawyers, rather than recognising the legal realities of the situation, these sellers’ solicitors choose instead to be bureaucrats, clinging to the notion that, if they simply follow the protocol, all will be well. It is a great shame that lawyers undermine their own profession by failing to address the legal issues, and instead rely on a marketing badge – CQS – as “evidence” that they can do their jobs.