An introduction to judicial review: the estate agent's problem

‘The estate agent’s problem’ used on a constitutional and administrative law unit at Norwich Law School – to find out more read the case study on the unit.

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The following bundle contains a range of documents that offer information relevant to the development of a solution to the problem outlined therein. Each study group of seven to nine students should work together to develop a substantiated legal argument concerning the disparate issues that arise, and reflecting the interests of the various clients. This solution is to be presented in a week three moot class in which each group should be prepared to discuss the main points in its solution for around 20 minutes. In advance of the moot class, each group is asked to submit a short skeleton argument on Blackboard in accordance with instructions to be provided. Full information on the tasks to be completed by the study groups, and by each individual student is available on Blackboard.

While students are not immediately dissuaded from utilising ‘rights-based’ arguments, they are reminded of the tendency of judges to deride such approaches when domestic jurisprudence already offers adequate solutions. The courts have been more than ready to invoke the ‘elasticity of common law principle’ (per Lord Nicholls, Reynolds v Times Newspapers Ltd [1999] 4 All ER 609, 625), and their capacity to achieve desired results using ‘ordinary principles of reasonably liberal and purposive contemporary interpretation’ (per Lord Cooke, ibid, 932, 929).

Students are advised that the scenario depicted in the assembled documents is fictitious. Moreover, the persons, associations and statutes referred to do not exist; to the extent that these resemble ‘real life’ bodies and measures this is merely coincidence. Oversight of property agents in the UK is in fact provided by a combination of alternative self-regulatory ombudsman’s schemes and trading standards review by the Office of Fair Trading, but students need not investigate such regimes.

The estate agent’s problem

Group A

Your office has recently been engaged by a Mr Alun Ash to advise on a dispute with the English Estate Agency Association (EEAA – see appendix 1 below). The EEAA is a private company that regulates the delivery of residential property services against a Code of professional practice.

An article concerning Mr Ash’s experiences appeared in the regional newspaper last week (see appendix 2, available at the bottom of the page). By this morning, in light of the publication of the newspaper article, the office had received a related inquiry from a Ms Catrin Cook (see appendix 3). Both of these correspondents is keen to pursue an application for judicial review, such as that mentioned in the article.

Group B

You have been engaged by the English Estate Agency Association (EEAA), with a view to defending it in case of any application for judicial review arising from the Ash/Cook grievances. You have had such material as is available to Group A made available to you.

In addition to the material gleaned from these prospective clients, your preliminary investigations have produced a number of seemingly relevant items:

• membership of the EEAA is not legally necessary either for firms of estate agents or individual practitioners working for them. However, the claim that such affiliation is widely recognised as a sign of integrity is largely true. Indeed, your investigations indicate that for those seeking to operate in the mainstream property market such accreditation approaches being imperative.
• Mr Ash has been a fellow of the EEAA for five years
• the Director General of Fair Trading (DGFT) was conferred with powers to regulate the estate agency sector in 1986. These powers appear, however, to be held abeyance (see appendix 4 below).
• the EEAA regulatory regime has received the government’s explicit imprimatur on a number of occasions in recent times. Indeed, the Minister for Consumer Affairs stated recently that the EEAA had her “full backing as a vital cog in the maintenance of good practice in the sector”.

Appendix 1: English Estate Agency Association memorandum (extracts):

In response to your recent query I draw your attention to the following details regarding the English Estate Agency Association (EEAA) and its operations…

The EEAA is a private company funded in part by a small levy on the transaction fees obtained by ‘member’ firms and agents, and in part by the consideration granted under contract by the same members…

Membership of the EEAA takes two different forms. On the first level, corporate membership is granted to accredited subscribing firms for an annual fee. The EEAA assesses applicant firms, accrediting for membership those that meet a range of standards of professional practice. Membership allows firms to advertise themselves as being ‘affiliated with the EEAA’. This is the accepted hallmark of professionalism in the sector. In return, affiliated firms promise to employ only such persons as have been granted Fellowship of the EEAA or persons likely to gain Fellowship after a probationary period, to provide ongoing high quality training to staff…and to discipline staff for breach of the Code of professional practice. It has become normal practice for affiliated firms to include penalty measures in staff employment contracts, culminating in termination of contract for substantial breach of the Code…

The second level of membership – Fellowship of the EEAA – is open to individual agents assessed by the EEAA as worthy of such recognition. In return for an annual subscription, accredited Fellows may identify themselves as such. Fellows must sign a declaration to the effect that they will at all times abide by the Code of professional practice, and commit to undertaking periodic professional development training.

Appendix 4: The Control of Misleading Selling of Residential Property Regulations 1986 (SI 1986/XXX (extract):

Complaints to the Director [General of Fair Trading]

4. (1) Subject to paragraph (2) below, it shall be the duty of the Director to consider any complaint made to him that information provided relating to a sale of residential property was misleading, unless the complaint appears to the Director to be frivolous or vexatious.

4. (2) In exercising the powers conferred on him by these Regulations the Director shall have regard to:

1. all the interests involved and in particular the public interest; and
2. the desirability of encouraging the control, by self-regulatory bodies, of the selling of residential property.

Last Modified: 4 June 2010