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Autumn 2017 ISSUE



Leading Title Insurance

Welcome to the autumn edition of our newsletter. In this issue we have contributions from our regular writers. Firstly, we have the third of four submissions from business development expert Professor Ian Cooper. He sets out six strategic factors that will help convert your email quote letters into actual business. Kevin Lee, at Hill Dickinson LLP, looks at two areas which are of regular interest to property lawyers - the correction of errors on the Land Register and the ever-problematic issue of prescriptive easements. Paul Butt continues on this theme and discusses the pitfalls to the ‘20-year right’ and possibly having a title policy that is not fit for purpose. Our underwriter contribution for this quarter comes from Emma Southall, who discusses what it means to adversely possess land.



Six strategic factors to improve results from email quotes By Professor Ian Cooper Law firm skills trainer / consultant, Author of the Financial Times Guide to Business Development

Do you send out an email quotes letter to people who have rung for a residential conveyancing quote? What proportion of your email quotes letters convert into business?

Of course it is a good thing to email a potential client details of your conveyancing quote, BUT there is a massive general problem, which is having a seriously detrimental effect on conversion rate results for many firms. The major problem is that 69% of firms have fallen into a default system of using email as a way of actually avoiding a meaningful and influential conversation at all with a potential client who has telephoned for a quote. These firms and their call handlers are doing no more than simply taking basic potential transactional details … “buying / selling / freehold / leasehold / what price are you buying or selling at etc?” … and then … “we’ll get an email quote out to you”. The send button is hit, the email quote has gone. Job done … or is it? Many of the firms who do this actually pride themselves on their efficiency for speeding up and simplifying the process. It might be quicker, but if the results are poor, it is false economy.


Many firms are failing to realise that this method limits conversion rate success, as no relationship is built with the caller, control is lost the moment the send button is pressed and it virtually forces the prospect to choose on price! The shocking truth is that there is a nationwide catalogue of missed business opportunities, over this issue, with the vast majority of firms seeing the email quotes letter as a purely administrative task. Many firms have failed to realise that their email quote letter is actually a ‘sales’ letter with a promotional and marketing objective. So, following a substantial review of this issue, here are the six key mistakes that many firms make, that need to be addressed if they want to improve their conversion rate of email quotes letters into profitable business.


Failure to differentiate – 84% of quotes emails sent out contain no information about the firm or communicate any potential benefits of using the firm at all. The only content is merely a list of prices. This virtually forces people to choose on the cost factor only. Is that really what you want? Ask yourselves … why should a potential client should choose you? Then make sure you include some of these reasons in your email letter.


Refusal to give a verbal quote – I have already mentioned that 69% of call handlers only want to take the transactional details and send out an email quote. However, it is also worth noting that when pressed for a verbal quote over the phone, two thirds of call handlers refuse to do this and use a variety of reasons and excuses such as ….

“It’s easier for you to understand if it is in writing”. “It takes too much time to run through all the figures and I’m very busy right now”.


Lack of the email being personalised – 97% of all the email quotes letters in my research showed no effort at personalisation at all, other than the caller’s name being inserted into the auto format template of the email quotes system. 4

FIRST COMMENT We also had many letters signed for example … “Kind Regards – Conveyancing Team (Name of Branch Office)” The simple truth is that the more personal the better. Remember, your prospective clients don’t really want ‘conveyancing’ at all. To them, this is in most cases about ‘moving home’ and that is the biggest single thing in their lives at that moment. This fact alone deserves some personalisation!


Too much focus on terms & conditions – 38% of firms open, or mention very early on in their email quote letters over legalistic terms and conditions, sometimes even prior to anything else. Here is a real one I recently reviewed:

The basic rule in sales, is to make it as simple as possible for your potential client to see what they need to see. How would you feel if there was a separate attachment that you had to open for each of the paragraphs in this article? Do what you can to send out an email with all the content contained in the body of it.


Too many errors in the emails - Believe it or not, in 56% of the large number of email quotes letters that I have reviewed, I found serious sloppy errors, which can only have a negative and damaging effect on getting a conversion. For example: •

The wrong name being used.

The name of the person spoken to, being different from the sender.

Wrong date.

Hardly a great and friendly opening to a ‘sales’ letter to someone you hope will choose to spend £1,800 with you!

Spelllin erorss throught the qote!!!!! (Irritating isn’t it? Hardly demonstrates your attention to detail).

However, important as this information is, timing is hugely important in the world of sales. It certainly shouldn’t come first.

Again, all inappropriate to what is essentially a sales and promotional letter that you hope will influence the recipient to ‘actively want’ you.

Your email letter should be personal, seek to influence the potential client to ‘actively want’ your firm and then provide the factual information they need in plain English.


“This letter is an indication of charges on the basis of details presently known and on the assumption that the transaction(s) will not prove to be substantially more complex or time consuming than expected etc. etc.”


Attachment fixation – 72% of firms don’t put the information within the body of the email text itself, but have multiple attachments to the email.

Whilst I understand that this is driven by some of the many email quotes software applications that are available, it doesn’t alter the fact that in many cases this is simply irritating and less effective from a sales and marketing perspective. At least half of those that go down the ‘attachment’ route had five or more attachments to open separately!

If you are simply taking the basic transactional details, inserting these into data fields on your screen and pressing your send button, you are almost certainly limiting your conversion rate success. You must build rapport with your caller; give your fee verbally; talk it through with them and only then, send out your email quotes letter, if there is still some doubt over them going ahead. Anyone who has a question, or who wants more information or training on this can contact me directly. 5

Common points of interest to property lawyers By Kevin Lee Hill Dickinson LLP This article will look at two areas which are of regular interest to property lawyers. The first is land registration and the correction of errors on the register and, secondly, is the welltrodden path of easements which continues to produce judicial developments.

Land registration is a complicated topic, especially when things go wrong. Certainly, any practitioner who has tried to seek redress from the Land Registry will know that every point is taken to avoid paying any indemnity.

By way of background, alterations are often required to be made to the various registers and the court has the power to order: (a) the alteration of the register to correct a mistake; or

Which course is taken is important, as where the court is altering the register to correct a mistake, the consequences of rectification and indemnity come into play. However, this is only when the alteration of the mistake prejudicially affects the title of a registered proprietor. So, the question of whether there is a mistake in the register is crucial because, if no mistake exists, the court would normally just bring the register up-to-date, and there will be no question of any indemnity to any person prejudicially affected. This was the underlying issue in NRAM Plc -vEvans (2017 EWCA civ 1013). This is a recent Court of Appeal decision which considered what amounts to a mistake for the purposes of Schedule 4 of the Land Registration Act 2002. The issue was how the court should correct the register and whether an indemnity was payable to any of those who suffered loss as a result of the correction.

(b) to bring the register up to date; or (c) to give effect to any estate, right or interest.


The facts of the case are that NRAM (the body set up to hold the assets of what was known


as Northern Rock) provided an e-DS1 to the Land Registry to remove a legal charge. But the electronic discharge was a mistake because Mr and Mrs Evans had two loan accounts with Northern Rock, both of which were secured by a single charge. Only one of the loans had been paid off, so the charge should have remained to secure the second loan. The High Court had, at the first hearing, found that the mistake had been induced by Mr and Mrs Evans through their solicitors. They had only referred to the loan that had been paid off when seeking confirmation that the charge would be removed and had not mentioned the second loan. NRAM hadn’t double checked the position. When NRAM became aware of the error, it registered a unilateral notice against the property. It also claimed that the e-DS1 should be rescinded on the grounds of the mistake and that the register should be rectified or brought upto-date by the re-registration of the charge. The legal consequences were that if the erroneous discharge of the legal charge was a mistake then the correction of the mistake would carry with it the right of any prejudicially affected party to seek an indemnity. If, however, it was simply an alteration of the register to bring it up-todate, then the statutory indemnity would not come into play. The court was clearly satisfied that the erroneous discharge was correctable. The issue was whether the removal of the charge from the register had amounted to a mistake or not. The Court of Appeal found that it was not a mistake and that the e-DS1 was valid at the time it was delivered. The court drew a distinction between those dispositions which are void from the outset, for example

a forged transfer (the registration of which would immediately result in a mistake), and those which were merely voidable at the time of registration, but subject to rescission thereafter (for example a disposition induced by fraudulent misrepresentation or undue influence). The fact that the deposition was voidable as opposed to void did not mean that there was a mistake at the time of registration. The fact that a voidable disposition was later rendered void did not mean that there was any original mistake, it simply meant that the register needed to be brought up-to-date. The judgment of Lord Justice Kitchen will be of particular interest to those avid students of land registration law. There is an interesting consideration of the opposing views taken on the distinction between void and voidable dispositions made on the one hand in Emmet and Farrand on Title and the view expressed on the other in Megarry & Wade and Ruoff &- Roper.

Moving on to easements, there are two recent cases that are of interest, but for different reasons.

Welford -v- Graham (2017) is a very important decision of Mr Justice Morgan sitting as a Judge in the Upper Tribunal. The issue involved a prescriptive easement (a right of way) and whether the dominant owner seeking to register the prescriptive easement could prove that the right had been exercised for the relevant period ‘as of right’. The key to proving a prescriptive easement is the continuous use of the right for 20 years as of right and without permission. The First-tier Tribunal (FTT) had found that the applicant had not been able to prove that the use had been ‘as of


right’. It said there was insufficient evidence over the relevant period of time of the lack of permission and / or consent. The new line of argument developed before Mr Justice Morgan relied on what was said to be the ‘evidential presumption’. Whilst it is for the applicant dominant owner to show that the right has been exercised as of right and without interruption, it is practically very difficult to prove this throughout a 20-year period, particularly where there had been various owners. So enter the ‘evidential presumption’. Once the applicant has adduced sufficient evidence to establish that the right had been exercised openly and without interruption for the relevant period, then the onus shifts to the servient owner of the land to rebut the evidential presumption that such user was ‘as of right’. In this case there was no evidence to rebut the evidential presumption and, accordingly, the decision of the FTT was over-ruled and the prescriptive easement determined in favour of the dominant owner. As an important post-script, readers should remember that the nature of a prescriptive right is determined by the mode of long user. The prescriptive easement reflects that user. The nature of the entry to be entered on the register was, accordingly, qualified in the following terms: ‘…the extent of this right, having been acquired by prescription, may be limited by the nature of the user from which it has arisen which was used for the purpose of access to and egress from the dominant tenement when being used as a joinery workshop…’. The final case, which is really only of interest for sensational purposes, is Dickinson -v- Cassillas (2017). This is a Court of Appeal decision widely reported in the Press because it involved more of those neighbours from hell. As ‘The Sun’ reported “SHOVE THY NEIGHBOUR - ‘Spiteful’ pensioner, 76, who stabbed one neighbour and built metalspiked gates to stop another getting access to her own gas meter faces losing her own home over £200,000 feud”. 8

Briefly, two neighbouring properties had been built on a housing estate in the 1980’s and both had the benefit of, and were subject to, similar easements, rights and reservations by virtue of similar transfers made by the original developers. Unfortunately, due to poor design or poor building, Mrs Cassillas’ electricity meter was set into the inside of Mr and Mrs Dickinson’s flank wall so that the only way that she could gain access to her electricity meter would be to enter on to Mr and Mrs Dickinson’s land. There was also an issue about an overhanging gutter. The Dickinson’s didn’t want to allow Mrs Cassillas entry to either read her meter or repair her gutter. The neighbour dispute had been ongoing for over 10 years and escalated when when Mr and Mrs Dickinson installed a locked gate denying Mrs Cassillas access and stabbed a neighbour who had tried to intervene. Mrs Cassillas issued proceedings in Manchester County Court for declarations and an injunction and Mr Recorder Khan found in her favour. He also made certain findings of fact as to the character of Mr and Mrs Dickinson which the fact they were unpleasant, argumentative and generally bad neighbours. He found that Mrs Dickinson was “an aggressive, spiteful troublemaker”. Mr and Mrs Dickinson appealed to the Court of Appeal and their appeal was dismissed. The judge had been right. Mrs Cassillas had easements to enter onto the Dickinson’s land for the purpose of effecting maintenance, repair and redecoration of her property. This easement did not, however, extend to the right to enter to read meters, but the Court of Appeal implied a term into the original transfer to give her such a right. A right to enter to take a meter reading would have been regarded as reasonably necessary or obvious at the time of the transfer and at the time the houses were built. Media reports are that the case had incurred costs to Mrs Cassillas of over £200,000.00 and that Mr and Mrs Dickinson were now faced with losing their home in order to pay those costs and it was all over an electricity meter and an overhanging gutter.





Prescription and policies By Paul Butt Consultant Solicitor Rowlinson


Problems with Prescription

I was recently involved in a spat with a buyer’s solicitor – who also happened to be a friend! – over whether a lack of easement policy was necessary in a particular case. The house we were buying was probably built around 1900 and fronted to the public highway. However, there was an unadopted rear access way which was the sole vehicular access to the garage – and the property did not have an expressly granted easement to use that access way. The seller took the view that as the house had access to the front from the highway, there was no need for a policy. We took the view that we wanted the seller to provide a policy due to the lack of an easement to the rear. This was the only access to the garage and if access to the garage was prevented this would inevitably reduce the value of the property considerably. This would be a concern not only to the buyer client, but also to her lender.

But this dispute reminded me (and I reminded my friend!) that the law on prescription is very complex and it is not just as simple as 20 years use and you get an easement. For a start the type of easement obtained is restricted to the type of use throughout the 20 years. So 20 years use, as of right etc., on foot will give rise to an easement for access on foot – not for vehicular access. There might have been 100 years use on foot, but had there been 100 years use by vehicles? And the nature of the use of the property being accessed – the dominant land, as the land lawyers call it - is also relevant. If the property being accessed is being used for (say) agricultural purposes e.g. a barn, and the barn is then converted for residential use, the change in the nature of the use of the dominant land will prevent use of the easement.

The seller responded that the rear access had probably been used since the property had been built and so there would be a prescriptive easement to the rear. I was reminded that 20 year’s continuous use will suffice to claim a prescriptive easement, provided that it is used ‘as of right’ i.e. openly, without force and without permission. In this case there would have been over a hundred years of use, so no problem in claiming a prescriptive right.

So even though there has been much more than 20 years use, the ‘right’ is still precarious in the extreme. So, the use might not have been ‘as of right’ – it could have been with consent, or by ‘force’ – for example the Court of Appeal held in Winterburn v Bennett [2016] EWCA Civ 482, where 20 years use had been proved, that notices saying land was ‘private’ prevented acquisition of an easement by prescription as use was, in effect by ‘force’. So if the owner of the land being used disputes the right to use the easement – and disputes over rights of way are very common – it


would be for the user to show that a prescriptive easement had been acquired, to prove the use had been as of right etc. for 20 years. At the very least this could be expensive and stressful. One way in which a landowner can establish the existence of a right of way is by applying to Land Registry to register the right to an easement against the ‘servient land’, the land affected. If the servient owner does not object, the right will be so registered; if the owner does object and the dispute cannot be resolved between the parties, Land Registry will refer the matter to what is now the Land Registration Division of the Property Chamber of the First-tier Tribunal. This now exercises the jurisdiction previous conferred upon the Adjudicator to HM Land Registry. But two recent cases before the Tribunal show the difficulties faced by applicants in such applications.

Two Recent Cases Welford v Graham [2017] UKFTT 0058(PC) (Judge Elizabeth Cooke) In this case Judge Elizabeth Cooke was faced with an application based on ‘lost modern grant’. This shows yet a further complication with claiming a right by long use – there are three different types of Prescription – common law, lost modern grant and under the Prescription Act 1832. Lost modern grant allows a claim to succeed based on any 20 years use – not necessarily the last 20 years. In this case an easement was being claimed based on as of right for 20 years prior to 2002. Any claim based on historic use will often require reliance on evidence provided by previous owners of the land, but memories fade and people die so such proof can often be difficult to obtain. Because of this, cautious buyers’ conveyancers will insist on the seller giving a statutory declaration or statement of truth at the time of the sale as to use during his or her period of ownership. In this case, use without consent etc. could be proved from 1978 to 1988, but the next owner of the dominant land was now dead and so there was no evidence could be obtained that the use for the period after 1988 was without consent. The claim to the easement was therefore rejected as it could not be proved that 12

there had been use without consent for the full 20 years required.

Wilson v Bowe [2017] UKFTT 0244 (PC) (Judge Jefferis) In this case the issue was also the matter of consent. There was evidence of use without consent from 1976 to 1980, but oral consent had been given in about 1982. This consent had not been requested by the then user. Could an unsolicited consent stop the acquisition of an easement by prescription? Yes, held Judge Jefferis. The unsolicited permission was sufficient to stop the user being as of right from then on. The applicants then claimed that after the permission was given there had been a ‘radical change’ in the type of use made of the track. This meant that the actual use being made of the track was not what had been consented to by the dominant owner. This user was thus without consent and so once more ‘as of right’. Although the assertion was accepted as being correct in principle, unfortunately, the evidence of the change of use was not sufficient to justify that there had been a radical change in this case.

Conclusion So it is clear that if there is an objection to your claim to a prescriptive easement, very strong evidence of use is needed. You must be very sure of your evidence before making an application to Land Registry or to court. But of course, in most cases, an application to Land Registry or any kind of court proceedings to establish an easement is completely impractical in the middle of a conveyancing transaction. So, when buying a property which relies on access or services simply because the property has been there for a long time, an indemnity policy is essential. Who knows if or when a new owner of the servient land might stop use of a claimed easement? The absence of an easement might result in the property value being substantially reduced. At the very least a policy will result in the payment of compensation in respect of any such reduction in the value of the property. It will also,

FIRST COMMENT usually, but depending upon the terms of the policy – cover legal expenses in defending any legal action brought by the servient owner. But when taking out or relying on any title insurance policies, do remember to read carefully the assumptions being made by the insurer on the issue of the policy and the conditions imposed. So with a breach of covenant policy there will normally be a condition that no contact has been made with the person with the benefit of the covenant. And similarly with lack of easement policies there will be a condition that no contact has been made with the servient owner. Be particularly careful with policies proffered by sellers’ conveyancers. Often they will just look for the cheapest available which might not be suitable for the particular situation you are faced with. Certainly I have seen some that didn’t even cover the risk we were concerned about! It is also sensible when relying on a policy to ensure that the buyer client understands what it does and does not cover and what the ongoing conditions attached to it are. So do tell the client that with most policies if the client takes steps to assert the claim – for example by making an application to Land Registry to register the easement against the servient land, as in these cases, the terms of the policy will almost always permit the insurer to disclaim liability. Polices can only be used as a shield, not a sword; can only be used to provide protection against claims or disputes commenced by the owner of the servient land, not to assert such a claim. Do ensure that clients understand this – they will only blame you for not telling them if you don’t!

You must be very sure of your evidence before making an application to Land Registry or to court 13

Adverse possession: a matter of control By Emma Southall Commercial Underwriter



Adverse possession - a matter of control Imagine the following scenario: •

A client owns an industrial site and is refinancing an existing lending facility.

During the course of your due diligence, your SIM search reveals that parts of the land are not within the client’s title.

The client confirms that they have controlled these areas of land for a number of years and they are enclosed within the boundary fence.

The bank won’t finance the deal and your client is looking to you for advice.

What does it mean to adversely possess land? Pye v Graham [2003] 1 AC 419 HL provides that (1) ‘factual possession’ means a sufficient degree of occupation or physical control and (2) it must be coupled with an ‘intention to possess’ which is “an intention to exercise such custody and control on one’s own behalf and for one’s own benefit”. In 1983 JA Pye (Oxford) Land Ltd (‘Pye’) granted a grazing licence to the Grahams in respect of land that it owned but intended to sell with the benefit

of planning permission for development. In 1984, Pye refused to grant a new grazing licence on the basis of its development plans for the land but did not object to the Grahams taking a cut of grass that year. The development plans never came to fruition and the Grahams continued to use the land for grazing, without permission and without payment for more than 12 years. The Grahams then claimed that they had acquired title by possession. Pye issued proceedings and the High Court found in favour of the Grahams. Pye appealed and the Court of Appeal overruled. The Grahams appealed to the House of Lords and the appeal was allowed. On the facts, the Grahams were in factual possession for the requisite period of time and had exclusive physical control of the property. Pye was physically excluded from the land by hedges and a locked gate. By remaining in possession of the land after the expiry of the grazing licence, the Grahams had intended to assert their possession against Pye.

What constitutes sufficient occupation or physical control? Again, Pye assists “using the land in a way which a full owner would and in such a way that the owner is excluded”. 15

Each case will turn on its unique facts. However, the occupier could demonstrate occupation and control by: •

Erecting a fence to the exclusion of others.

Locking gates and controlling access to the land.

Cultivating crops or using the land as a garden.

Planting trees.

Grazing the land.

Adverse possession of unregistered land In order to establish possession of unregistered land, the occupier must be in adverse possession of the land for at least a 12 year period. The time periods are significantly longer for Crown land and Crown foreshore. The applicant must demonstrate that they have exclusively possessed the land and that the possession was both intentional and without the owner’s consent.


Adverse possession of registered land The doctrine of adverse possession did not fit easily with the fundamental concept of indefeasibility of title that underlies the system of land registration. The uncertainties as to ownership which may justify adverse possession of unregistered land do not apply to registered land where the legal estate is vested in the registered proprietor who is identified in the register.

The Land Registration Act 2002 (LRA 2002) created a new regime that applies to registered land. After 10 years of adversely possessing registered land, a party can apply to the Land Registry to be registered as the new owner in place of the existing one. On receipt of an application, the Land Registry will notify the paper owner of the land – typically by providing a copy of the application and supporting statement of truth. The paper owner is then invited, within 65 days, to: •

Consent to the registration;

Challenge the application by filing a counter notice (which has the effect of requiring that the application be dealt with under paragraph 5 of Schedule 6 of the LRA 2002); or


Object to the application on another ground.

If the application is not opposed, the applicant will be registered as proprietor in place of the paper owner on expiry of the 65 day notice period. If the paper owner objects to the application, the matter will be referred to the Land Registry’s dispute resolution regime. However, if the paper owner requires the application to be dealt with under paragraph 5 of Schedule 6, the application will be rejected unless the applicant is able to rely on one of the three conditions in paragraph 5. The conditions are: •

It would be unconscionable because of an equity by estoppel for the paper owner to seek to dispossess the applicant and the circumstances are such that the applicant ought to be registered as the proprietor;

The applicant is for some other reason entitled to be registered as the proprietor; or

The applicant has been in adverse possession of land adjacent to their own for at least 10 years under the mistaken but reasonable belief that they are the owner of it.

If an application is rejected as a result of a counter notice being given and none of the three

conditions being met, the applicant will need to wait a further two years before resubmitting their application. During this time, the paper owner may evict the applicant.

What are the options for resolving the matter? •

Contact surrounding parties to agree a boundary agreement or rectification of the boundary;

Make an application to the Land Registry for possessory title to the land; or

Obtain indemnity insurance.

The First Title solution: A First Title indemnity policy will protect the insured, mortgagees, tenants and successors in title against a challenge by a third party against title to the adversely possessed land. There is no need to engage in a potentially lengthy negotiation with third parties or submit an application to the Land Registry for registration of possessory title or rectification of the register. First Title is able to provide a comprehensive solution to this problem that will enable the deal to complete swiftly. 17

Leading Title Insurance


On the hunt for elusive, competitive, fast & award winning title insurance? The search is over.

Call: +44 (0)207 160 8218 Email: Visit: First Title Insurance plc is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. First Title Insurance plc is registered in England under company number 01112603. Registered office: First Title Insurance plc, ECA Court, 24-26 South Park, Sevenoaks, Kent TN13 1DU


Product Case Study:

Search for new lease Background


First Title were approached by a solicitor acting for a client who was taking a seven year lease of a unit within a food court, in a new mixed use development. The client required cover for the lack of a local authority search as they wanted to complete the lease in order to start trading once development was finished.

First Title provided a Known Risk title insurance policy with a Rental Liability endorsement. This meant that the tenant could complete the lease with the security that if there was anything which prevented them from trading in the future and which would have been revealed by a local authority search at the point of completion, then the First Title policy would respond.

Ramifications of risk The unit was newly built and so had no history of trading. The failure to obtain a local authority search meant that the client could not be certain that the unit had clean title or that they would not be prevented from trading.


To find out more about our products and services email or call +44 (0)20 7160 8100

First Title Insurance plc is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. First Title Insurance plc is registered in England under company number 01112603. Registered office: First Title Insurance plc, ECA Court, 24-26 South Park, Sevenoaks, Kent TN13 1DU.

Autumn '17 England & Wales  
Autumn '17 England & Wales