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Dr Charles Harpum becomes honorary QC

Dr Charles Harpum QC (Hon) –  a short tribute

Summary:

Charles Harpum is one of the true greats of legal academia. His authorship of Megarry and Wade, the Land Registration Act 2002, and his articles, are three major contributions to the law of England & Wales outside practice in the courts, before one even gets to all his other enacted Law Commission bills, and the myriad other contributions he has made to the development of the law.  His academic output has been voluminous and unique, and in the considered opinion of his peers; of the judiciary; and of his professional association, the Chancery Bar Association, Dr Harpum richly deserved to be made Queen’s Counsel Honoris Causa.

Qualifications:

Dr Harpum read law at Downing College, Cambridge, achieving a BA with starred double first class honours in 1975.  He went on to obtain an LLB with starred first class honours in 1977, and was awarded the Chancellors Medal for English Law.  His MA in 1979 was followed by a LLD in 2003.

Between taking his BA and his LLB, Dr Harpum took his Bar Finals in 1976, achieving the Hardwicke and Cassel Scholarships, and the Buchanan Prize.

Academic career:

In 1977, Dr Harpum commenced his academic career, as a Law Fellow at Downing, and subsequently a lecturer at Cambridge, teaching land law, equity and trusts and conveyancing. He is also a legal historian.

Between 1981 – 2, while teaching at Cambridge, he also undertook pupillage at 9 Old Square (Paul Baker – Alan Sebesteyen) and 13 Old Square (E.W.H. Christie – William Blackburne), in order to further his qualifications, rather than with any intention of practising. 

Dr Harpum was the sole editor of Megarry and Wade’s Law of Real Property (6th Edition, 2000), and became co-editor of both the 7th edition in 2008 and 8th edition in 2012. It is without doubt the authoritative textbook in the entire field of real property, and amply demonstrates Dr Harpum’s unrivalled mastery of the intricacies and history of this area of law. The work was greatly revised and modernised by Dr Harpum when he took over responsibility for the sixth edition. It is regularly cited and approved in the Courts and Tribunals of England and Wales, and is treated as the standard reference work.

Dr Harpum is the principal architect of the Land Registration Act 2002, which was perhaps his most significant achievement whilst at the Law Commission, during which a large number of legislative reforms of some substance came to fruition under his Commissionership.

Although the above are key examples of Dr Harpum’s influence on the practice of the law, it is important not to forget his influence on the academic side of the subject. In addition to his textbooks (the principal one of which is cited above, with more listed further below), Dr Harpum has both contributed greatly to the corpus of academic writing and, influenced the thinking, on property and trust law.

Of his many (over 50) articles and notes, perhaps (though others could be chosen) the most influential are:

• His two important articles in the late 1970s on the nature of implied easements, tracing their history and reception into English law: 'Easements and Centre Point: Old Problems ...” [1978] Conveyancer 449; 'Long v Gowlett: A Strong Fortress' [1979] Conveyancer 113, which set section 62 of the Law of Property Act 1925 and the rule in Wheeldon v Burrows in their correct context.
• His two-part article on third party liability for interfering with trusts, “The Stranger as Constructive Trustee Part I” and “The Stranger as Constructive Trustee Part II” (1986) 102 Law Quarterly Review 114 and 267 respectively. This was followed up his contribution to Volume 2 of Peter Birks (ed), The Frontiers of Liability (1994), a chapter entitled ‘The Basis of Equitable Liability’, and ended with his overview of the vexed area of constructive trusts in “The uses and abuses of constructive trusts: the experience of England and Wales” [1997] Edinburgh Law Review 437, one of the most important articles on the different species of constructive trust. All of these articles have been extensively cited in domestic and international literature, and informed Lord Robert Walker’s article "Dishonesty and Unconscionable Conduct in Commercial Life - Some Reflections on Accessory Liability and Knowing Receipt" (2005) 27(2) Sydney Law Review 187. They have been remarkably influential in the Courts, both here and abroad.
• A series of articles in early 1990s which shed new and original light on the law of conveyancing, including
  • "Overreaching, Trustees' Powers and the Reform of the 1925 Legislation" [1990] C.L.J. 277, cited extensively and described by the Court of Appeal as “illuminating” in the leading overreaching case of State Bank of India v Sood [1997] 2 W.L.R. 421.
  • “Exclusion clauses and contracts for the sale of land” (1992) 51 Cambridge Law Journal 263, which has also been cited judicially here and abroad.
  • “Selling without title: a vendor's duty of disclosure?” (1992) 108 Law Quarterly Review 280, a highly original consideration of the nature and roots of the development of obligations under conveyancing contracts.

Dr Harpum’s work has not merely been influential domestically in both the academic and practitioner worlds. It has been cited internationally. His articles are to be found cited in Australian, Canadian, New Zealand and South African periodicals, in decisions of Courts all over the world:

• In Australia:
  • In the High Court (e.g. Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57) and Federal Court (eg Re Demagogue Pty Ltd v Nicholas Ramensky and Gisela Elizabeth Ramensky [1992] FCA 557)
  • In the Supreme Court of New South Wales (e.g. Hasler v Singtel Optus Pty Ltd; Curtis v Singtel Optus Pty Ltd [2014] NSWCA 266);
  • In the Supreme Court of Queensland (e.g. Sino Iron Pty Ltd & Anor v Palmer & Anor (No 3) [2015] QSC, referring to the article on The Stranger as Constructive Trustee as “luminous”); 
  • In the Supreme Court of Victoria (e.g. Australian Super Developments Pty Ltd v David Wellesley Marriner & Ors [2014] VSC 464);
  • In the Supreme Court and Court of Appeal of Western Australia (e.g. Nicholson v Morgan [2013] WASC 110;

• In the Supreme Court of Belize (Bernard Palacio v Douglas Richardson and Madalon Witter [2004] BZSC 5);
• In the Caribbean Court of Justice (Walsh v Ward [2015] CariCJ 14)
• In the Hong Kong Court of Final Appeals (e.g. Sun Honest Development Ltd v Appeal Tribunal (Buildings) [2009] HKCFA 96) and the Hong Kong Court of Appeal (e.g. Okachi Hong Kong Co Ltd v Nominee Holding Ltd [2006] HKCA 436; Akai Holdings v Kasikornbank Public Co Ltd [2009] HKCA 286
• In India, in the High Court of Delhi (Johri v Rajput [2014] INDLHC 2024)
• In the Court of Appeal of New Zealand (e.g. Coltart v Lepionka & Company Investments Ltd [2016] NZCA 102, and multiple times in the High Court)
• In the Supreme Court of Singapore (e.g. Zage v Kwong [2010] SGCA 4)

His articles and textbooks remain University reading list staples, and even his earlier articles are still regularly cited.

Law Commission:

In 1994, Dr Harpum became a Law Commissioner, and continued in that role until June 2001.  In that post, he was more or less intimately connected with a number of pieces of property legislation, including the Law of Property (Miscellaneous Provisions) Act 1994, the Landlord and Tenant (Covenants) Act 1995, the Trusts of Land and Appointment of Trustees Act 1996, the Land Registration Act 1997, the Trustee Act 2000 and the Land Registration Act 2002, with the last being his principal achievement, though the others are substantial achievements in themselves. Indeed, whilst at the Law Commission Dr Harpum had remarkable success in bringing about reform.  He was also involved with a number of consultative and other documents dealing with disrepair, the property rights of cohabitants and peaceable re-entry. 

He acted as consultant to HM Land Registry during the passage of the Land Registration Bill through Parliament, and assisted the Ministry of Justice with the Perpetuities and Accumulations Act 2009.

Lord Carnwath JSC writes in this connection:

“I regard Charles Harpum as probably the leading property lawyer of his generation. His editorship of Megarry and Wade, not only met the exacting standards set by the original editors, but has ensured that it remains the leading textbook on the subject. I was privileged to work with him as Chairman of the Law Commission, during the final stages of the report on Land Registration which he led and largely wrote. It was one of the most substantial law reform projects undertaken by the Commission. It involved total mastery of the subject on his part, combined with the ability to work closely with the Land Registry and the Parliamentary Counsel of the drafting of the Bill. It was completed under great pressure, in order to meet the Parliamentary timetable set by the then Lord Chancellor (Lord Irvine). The quality of the work was confirmed by the speed with which it passed through both Houses and became law, and has been borne out in subsequent practice. His other work for the Law Commission reached an equally high standard, as have his many academic writings.”

Career at the Bar:

In 2000, Dr Harpum left academia to practice at the Bar, accepting a tenancy at Falcon Chambers.  He has announced his intention to retire from active practice in 2018.  During his time in Chambers, he has appeared in numerous property cases, acting for, among others, the Crown Estate (as their Counsel of choice in property matters – indeed, it may be said that Dr Harpum has long been Her Majesty’s Counsel), the Port of London Authority, estate owners, local authorities and tenants.  He has consolidated his renown as an expert in real property law, with a particular expertise in relation to land registration, conveyancing matters, rivers and the seabed, as these passages in the following legal journals attest:

“Receives plaudits for his extensive knowledge of property law and his ability to handle complex matters. His areas of focus include conveyancing law, land registration, and landlord and tenant law. Strengths: ‘Frankly he’s absolutely magnificent, he’s quite simply faultless. It's a pleasure to give him something hugely complex.’ Recent work: Has recently acted on a number of cases related to fishing rights, including a very complex case about the title to fishing rights in Derbyshire.” - Chambers UK Guide 2017 (Real Estate Litigation).
“Several sources attest to his encyclopaedic knowledge of real estate law. Strengths: 'A noted authority on all aspects of land registration.' 'We use him on esoteric questions: he knows it all and is able to get to the crux of quite complex matters quickly'.” Chambers UK (2016).

It is also right to add the following plaudit from Lord Neuberger PSC:

“I entirely agree with Lord Carnwath’s assessment [see above]. While I have not had direct experience of Charles Harpum in the Law Commission, over the past twenty-five years I have very frequently had cause to refer to Megarry and Wade, of which he has been and is the editor: it is a truly outstanding book on a very difficult, intricate and complex legal area – as well as a very important one. He joined my former chambers four years after I became a Judge, and I have had many discussions with him about property law issues over the years. Those discussions have demonstrated that Charles Harpum’s deep knowledge of property law is equalled by his ability to analyse problems in that area in an imaginative and practical way.”

Reported cases:

• Fuller v Kitzing [2017] EWHC 810 (Ch) [2017] 3 WLR 615 (extent of sporting rights);
• Lynn Shellfish Ltd v Loose [2016] UKSC 14 [2017] AC 599 (Supreme Court; several fishery, sandbanks and accretion)
• Page v Convoy Investments Ltd [2015] EWCA Civ 1061 (Court of Appeal, boundaries and rights of way)
• Bank of Scotland Plc v Joseph [2014] 1 P & CR 302 (Court of Appeal, registered land, charges and liens)
• Port of London Authority v Tower Bridge Yacht & Boat Co Ltd [2013] EWHC 3084 (Ch) (ancient moorings in the Thames)
• Rosebery Ltd v Rocklee Ltd [2011] L & TR 21 (extent of upward demise of top floor flat)
• Hermann v Royal Borough of Kensington & Chelsea [2010] EWHC 1706 (Ch) (whether there was a statutory right to use a garden in a London square)
• Port of London Authority v Ashmore [2010] EWCA Civ 30 (Court of Appeal, adverse possession of tidal river bed)
• Roberts v Swangrove Estates Ltd [2007] 2 P & CR 326 (adverse possession of bed of tidal river)
• Kent v Kavanagh [2007] Ch 1 (Court of Appeal, easements)
• Eurodis Electron plc v Unicomp Inc [2004] EWHC 979 (Ch) (guarantees)
• Castlegroom Ltd v Enoch [2003] 2 EGLR 54 (leasehold enfranchisement)
• Orchard Trading Estate Management Ltd v Johnson Security Ltd [2002] 2 EGLR 1 (Court of Appeal, estate rentcharges)
• Baxter v Mannion [2011] 1 WLR 1594, in which Jacob LJ commented:​  

“It should be noticed that both the consultative document and the final report were the responsibility of Mr Charles Harpum, who was a Law Commissioner for England and Wales from 1994 to 2001, head of the Property and Trust Law team at the commission and a consultant to HM Land Registry during the passage of the Act through Parliament.” 

He then went on to say:

“Finally, although we were referred to other passages of Ruoff & Roper, Registered Conveyancing and to passages of Megarry & Wade, The Law of Real Property, 7th ed (2008) whose editors include Mr Harpum, none of the passages was directly in point - no bull's eye for either side. But one passage in Registered Land (2004) co-authored by Mr Harpum is - to use a mixed metaphor - squarely in point. It is a footnote to para 30.1 and says: "If an applicant was registered under the scheme provided by the Land Registration Act 2002 and it then transpired that he had not in fact been in adverse possession for ten years, his registration would be a mistake, and there would, therefore, be grounds for an application for rectification of the register: see Land Registration Act 2002, Schedule 4, paragraphs 2(1)(a), 5(a)." So the opinion of the architect of the Act is dead against Ms Galley's contentions. That clearly has considerable weight in view of Mr Harpum's deep connection with the Act and its drafting. Accordingly I unhesitatingly reject the main point on this appeal.”

Publications:

During his career in academia and as a working barrister, Dr Harpum has also written the following seminal texts on property law:

• Megarry & Wade: The Law of Real Property (6th edition, Harpum; 7th edition, Harpum, Bridge and Dixon; 8th edition, Harpum, Bridge and Dixon)
• "Registered Land - Law and Practice under the Land Registration Act 2002" - Harpum and Bignell (2004).
• "Registered Land The New Law: A Guide to the Land Registration Act 2002" - Harpum and Bignell.
• Numerous articles and book chapters on land law, conveyancing and trust law, several of which have been cited judicially (as to which, see the selection above).

Conclusion:

Dr Harpum has towered over the world of real property for the best part of 40 years, during which time, as a Law Commissioner, he has drafted our laws; as an academic he has explained them authoritatively in lectures, books and articles; and as a practising barrister he has applied them to acclaim. 

It is difficult to think of a single other property lawyer who has shaped both the academic and practitioner spheres as profoundly as Dr Harpum has done.

These factors in combination with Dr Harpum’s undoubted excellence as a teacher of law and his pre-eminence as an author and researcher within the academic community, led the Chancery Bar Association to believe that Dr Harpum was an outstanding candidate for appointment as an Honorary Q.C., and to nominate him accordingly.

The link to the official announcement is here

 

 

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