Archive for December, 2006

Law Search now Beta 0.1

Published
by
NL
on 30/12/2006
in Various (non-housing)
. 0 Comments

It is an ongoing process, but I think Law Search has reached Beta status, just, and has thus been promoted to the sidebar.

law search

The custom specialist search, via Google co-op, prioritises results from listed sites, but includes general search results. The listed sites aim to cover freely available resources for statute, case law, commentary, reports, blogs and other resources for UK, particularly English, law. Subscription based and limited access sites are not included.

My grateful thanks go to Delia Venables for collating resources and most particularly to Nick Holmes of Binary Law and Infolaw for advice and assistance beyond the call of duty.

Nick Holmes has set up specialist custom search engines for particular areas (eg, Blawgs, Legislation, Case law). I would be very interested in any comments people might have on the relative utility of a ‘general’ law custom search and the ‘focused’ custom searches. I use both, but my search needs only cover certain areas, so I cannot be clear about effectiveness. If it turns out that delimited specialist searches are more useful, I’ll give this CSE a rethink.

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What do we do with a problem like Ground 8?

Published
by
NL
on 28/12/2006
in Housing law - All, Possession and assured-tenancy
. 0 Comments

To those not acquainted with housing law, Ground 8 is one of the mandatory grounds for possession of an assured tenancy listed in Housing Act 1988 Schedule 2. It forms one of the major differences between an assured tenancy (typically Housing Association/Registered Social Landlord) and a secure tenancy (typically Local Authority). As the wholesale transfers of local authority housing stock and tenancies to Housing Associations continue, not wholly uncontested, these differences become increasingly significant.

Ground 8 works quite simply. For the average weekly tenancy, it goes like this: 8 weeks rent arrears at the the time of the service of the Notice Seeking Possession and 8 weeks rent arrears at the date of the hearing of the claim and outright possession must be granted. Note those two dates. It does not mean a continuous period of arrears of 8 weeks or more. One can have entirely paid off arrears and then accrued a furhter 8 weeks, it doesn’t matter.

In dealing with secure tenants facing a possession claim for rent arrears, the Court has an extensive discretion as to whether possession is granted and if so, whether it is postponed. The Court will typically consider the arrears history and any reasons for the arrears, such as difficulties with housing benefit (which are frequent). None of this can be considered in a claim for possession on Ground 8. If the conditions are met, outright possession is mandatory and eviction usually follows promptly.

Some Housing Associations claim that they rarely use Ground 8, relying instead on discretionary Grounds, others claim that they use Ground 8 only ‘in extremis’. All point out that they have a duty to recover rent (although only rarely is any rent actually recovered this way). However, there are still many claims being made, in my anecdotal experience.

Nobody, except the Housing Associations, likes Ground 8. The Courts tend to dislike the restriction on their discretion, particularly when they are very familiar with housing benefit screw-ups. I have heard tales of the Court, where there is any doubt at all that the Notice Seeking Possession was received by the tenant, insisting that the HA witness to service is produced, which they often can’t do and this will, in any case, adjourn matters unless by some miracle, the housing officer is present.

Housing lawyers don’t like it for obvious reasons. So what, if anything can be done in the face of a Ground 8 claim?

Where the Order has been made, are there any grounds to set it aside? The usual ones of non-attendance for good reason and a defence usually won’t work, (but just might for disrepair?). However, I have successfully obtained set asides on the basis of oppression and on the basis that the defendant was a patient in terms of CPR 21.2 so that a litigation friend should have been appointed by the Claimant.

If there is the basis for a disrepair counterclaim, this might work. I haven’t personally run one, but it ought to mean that the amount of the arrears is disputed.

Also check whether the amount of arrears can be disputed, post Riverside Housing Association Ltd v White [2005] EWCA. Have rent increases been correctly levied? [Edit 05/07. The House of Lords has overturned the Court of Appeal judgment. Although the matter turns on the facts of Riverside, this downgrades a challenge on these grounds].

The other challenges are purely procedural. Have the technicalities, such as service, been complied with?

On these lines, a new and interesting prospect is presented by the introduction of the Pre-Action Protocol for rent arrears possession claims. A failure to comply with the protocol, where the claim is brought on anything other than solely mandatory grounds, means the Court can adjourn, strike out or dismiss claims. Claims on Ground 8 typically, though not always, are also made on Ground 10 and 11, which are discretionary grounds, thus opening up the argument that the Claimant has failed to comply with the Pre-Action Protocol and the claim should be dismissed or struck out. This won’t work on a solely Ground 8 Claim, but these are rarely made because of the arrears are reduced below 8 weeks (for a weekly rent), then the whole claim fails.

In my anecdotal experience, Housing Associations have been very poor at following the Protocol since it was introduced at the beginning of October 2006. This one could well be worth considering.

The fact remains that Ground 8 claims are difficult to defend (and for that reason it can be tricky to get funding for a defence). As the use of the ground is often deeply unfair to a tenant who has been trying to get their housing benefit sorted out (and this can take months), it makes an assured tenancy considerably less safe than a secure one.

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And a happy christmas to me.

Published
by
NL
on 27/12/2006
in Various (non-housing)
. 0 Comments

Unlike Charon QC or even Geeklawyer, I have been away doing the christmas necessaries, and actually very pleasant they were too.

On my return today, I find that to my surprise and delight, I have received a Blawg Review Award for 2006. Hurrah and indeed whoopee. As a newcomer of 6 months or so, this is gratifying. It has also been picked up by the Self Help Law ExPress, which is a blawg I shall be following from now on.

Granted, this is an award for ‘paralegal blawg of 2006′. which is lovely, but feels a little like coming first in a category of, well, several at best.

On the other hand, this is an effectively USAian award and mine and Human Law (as best British Blawg) were, as far as I can see, the only British blawgs, so there is quite some pride in grabbing an international category, however small.

And to Public Defender Stuff, who rightly objected to the absence of a public defender category but cited Nearly Legal as one extreme of the listings, I would say that I might not do criminal work, but this blog is entirely fixated on legal aid public defence work in housing. It is what I do, to paraphrase the Bishop of Southwark. I’m just not USAian.

And to Geeklawyer, who is, as we all know obsessed with awards, may I just say Ppphhtt. Oh and a post of mine is currently a ‘must read’ at techlaw advisor. What can I say? It is not just the Bar that can do shameless self-promotion.

Coming next – Some seriously speculative housing law.

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We're not in Kensal Rise anymore, Toto.

Published
by
NL
on 20/12/2006
in Various (non-housing)
. 0 Comments

With thanks to Charon QC for the link, an utterly unseasonal opportunity for schadenfreude (assuming it is genuine) is here, courtesy of Liadnan.

Normally, those of us in legal aid housing law can be expected to be sympathetic to tales of sudden homelessness (well, losing at least one home). I’m not sure that hysterical laughter counts as sympathy.

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Equitable interests and right to buy discounts

Published
by
NL
on 17/12/2006
in Housing law - All, Trusts and Estoppel and right-to-buy
. 0 Comments

A fairly abstruse discussion after the recent fun and games, but, to someone like me who was intrigued and amused while studying equity, an enjoyable one.

A recent case involved the client’s equitable interest in an ex-council house, formally purchased by the tenants, but the client stood guarantor and paid over half the mortgage, following an oral agreement that all three would ’share’ the ownership.

The other side had denied any agreement and claimed the client was paying rent, but the evidence was strong enough for an agreement to be inferred by the Court in a Lloyd’s Bank type 2 form, although not for the 50/50 that our client maintained. So, a constructive trust/proprietary estoppel (Oxley v Hiscock [2004] EWCA Civ 546 having effectively conflated the two).

The question then was the apportionment of interest. The facts as found by the Court were that our client had paid something like 70% of the mortgage, and that the other side had attracted a discount of some 45% on the purchase price as a result of their tenancy on the right to buy. There were other payments and expenses for both sides, but no deposit.

Naturally, the other side argued for the 45% as their contribution, so that any share to our client would have to be in the remaining 55% (so say 22.5% max). They relied mainly on a reading of Springette v Defoe [1992] 2 FLR 388 where the RTB discount was treated as a fixed contribution. Unfortunately for them, the issue of the discount was agreed by the parties rather than argued at the Court of Appeal.

We rehearsed the recent history from Lloyds Bank v Rosset [1991] 1 AC 107 through Oxley v Hiscock. In each case, the Court had taken the position that although it was entitled to consider the RTB discount as a contribution, where there was no express agreement between the parties as to share, the contribution was part of a whole course of dealing and it was this that the Court should consider.

Our argument was that each of these cases was a resulting trust case, hinging on initial contribution to purchase. So if the discount was a factor but not a fixed point in these cases, then it should be even less of a weight in a constructive trust case, based on a post purchase course of dealing (on both sides).

The Court seemed to largely accept this, pointing out that the discount would have been valueless without our client enabling the mortgage. In the judgement, the Court firmly declared that it was not bound in the way it should consider the discount, that its governing principle was that of equity and that the discount formed a part of a consideration of all the circumstances or ‘the whole course of dealing’. Following Oxley, of course, but a clear statement of equitable principle in constructive trust

Our client got 40%, which seemed about right to me on the facts. The client had had benefits in terms of living expenses, Council tax and so on that were also weighed.

Some feel there is a danger in not having the discount as a fixed consideration. Certainly, one can imagine situations – say where that has been one partner’s sole contribution because that was all they had – where it would seem unfair for the discount to be, erm, discounted. But, as the Court stressed here, equity is the governing principle, fairness in the circumstances, and that seems to me to be right, as those circumstances can vary from utter shams to the completely deserving.

Nothing earth shaking then, but a clear statement of position. It was also interesting to see this worked out in a non-marital/partnership situation.

There was an intriguing second string argument on subrogation, should constructive trust fail, but I need to brush up on the details before I can render it.

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Botox and peel.

Published
by
NL
on 17/12/2006
in Various (non-housing)
. 0 Comments

I have had a bit of a re-design. I think the look is better and hopefully easier to use.

It took me a bit further into the bowels of Wordpress than I was planning, but it seems to be running fairly well. Any problems, please let me know.

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Irony in passing.

Published
by
NL
on 15/12/2006
in Various (non-housing)
. 0 Comments

I know I shouldn’t, but working on the litigator’s instinct of putting the boot in, here is a quote from the ‘CEO’ of Netrank, taken from this Guardian article:

John Straw, chief executive of online brand positioning company Netrank, says it advises its clients to deal quickly with customer complaints that have become the source of online discussion.

‘It’s better to spend some money on dealing with one person, than risk a complaint going viral and damaging the value of the brand in the long term,’ he says.

So what happens when it is exactly your ways of trying to steer online discussion that is the issue being raised?

Try a google.uk on ‘netrank blog‘. I tried it out of late night curiousity and frankly I was astonished to see that little post of mine right up there.

But this weekend, I promise some law posts, honest.

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A dialogue (of sorts) with Netrank.

Published
by
NL
on 14/12/2006
in Various (non-housing)
. 0 Comments

I have an email from Ellie Precious. On the plus side, that is a response within 36 hours of my original post. Not bad as a damage limitation reaction time. On the minus side, it was an email, not posted as a response to the post, which shows a continued level of not really getting it. So, in a spirit of helpfulness, here is the email, with my responses. I should make clear that this is not response personally directed at ‘Ellie’. As with the first post, any references to ‘you’ should be assumed to refer to Netrank.

Hi there,

Well hello.

I have spoken to my team about your comments and I wanted to respond personally, as you have specifically mentioned me.

Just to be clear, your first email made no mention of a team, or company, it was sent as an email from ‘Ellie Precious’, personally. It was hard to avoid mentioning the name. What did your team think of the post? Now you’ve discussed it, I’d be interested to know.

I am very sorry that my efforts to contact you have been taken in such a way to make you feel manipulated and disliked.

I didn’t feel manipulated. I was annoyed at a rather poor attempt to manipulate me. I never said I felt disliked, which I didn’t. See below.

I can assure you that by contacting you with the age discrimination news, my sole aim was to introduce you to the research and open a dialogue.

This is disengenuous in the extreme. For a start, in what possible way was this an overture to a dialogue? It was a press release, all the links in which lead to fixed pages at Fox Willams with no comment option. Or are you suggesting that you, personally, were intending to enter into an email or phone discussion on the impact of age discrimination legislation on law firms? Given that your company’s recent enthusiastic introductions have generally concerned kitchen appliances and baby apparatus, I think not.

Now, ’sole aim’? Are you trying to tell me that, out of the goodness of your heart, you were trying to ‘introduce the research’ to people who were interested and that it had nothing to do with raising your client’s profile, search engine rating and search term result, or even just gaining the client publicity for ‘doing age discrimination’? I’m sorry, but I don’t believe you. In fact, do you take me for an idiot?

I also contacted other UK based bloggers that I thought might be interested in the content.

And that worked well. Nick Holmes’ specialist uk law blog search records precisely no results for the research on a search for ‘age discrimination fox williams’. Which brings us neatly back to the point of my post, which concerned Netrank’s methods.

Taking your comments on board, my approach could have been phrased better;

Then you haven’t taken my comments on board. The point is not your ‘phrasing’, but the methods.

however I want to make it really clear that at no point was I hiding who I was or who I worked for. Net-Additions is a small online publishing company within Netrank and I have an email address for both Netrank and Net-Additions.

Disengenuous. You were hiding who you worked for, as the email did not give any company affiliation at all, posing as a personal email. (The original is here, stripped of the press release, but otherwise untouched.) If you consider an email domain to be full disclosure, it is worth noting that Net-additions.com has no website and a google search for ‘net-additions’ gives one hit that might suggest what the ‘company’ does, unless you are also a US shopping site.

I work for a search marketing company and undertake online PR as part of my role.

‘Search marketing’ meaning search engine optimiser, I take it.

My work involves looking for blogging sites that I think are particularly clear, informative and above all – human. I and the company I work for do not sneak about when we go about our work.

Then why send an email that posed as a personal email and contained no company affiliation? I can guess. I’ll bet the conversation went something like this:

A – “Blogs are everywhere these days, how can we use blogs as a PR vehicle and attract links and ranking for our client?”

B – “Well, blogs are personal things aren’t they? We should take a personal approach to them, send an email from a person not the company, that sort of thing. You know, the human touch.”

So, I return to my original point. Netrank’s (or net-addition’s) methods don’t work in the blog world. In fact, they are counter-productive.

“Eleanor Precious doesn’t really like me”- I do not dislike you – how can you dislike someone you’ve never met, and I am at a loss as to why you would think this,

Either you are patronizing me or you have missed something. I thought PR people were supposed to get nuance?

If I wanted to say you disliked me, the post would have been titled ‘Eleanor Precious really doesn’t like me’. But it wasn’t. The clue is in the post which was about a faux personal approach, concealing PR flackery. Do you see what I did there?

I am genuinely distraught that my work has caused you offence and to respond with such an attack – I’ve learned a lot from the experience.

It wasn’t an attack, it was a robust comment. Judging by the medium and content of this response, I don’t think Netrank have learnt any relevant thing at all. If you are selling yourselves to your clients as being in any way on top of this blog thing, then Netrank have got a lot of learning to do.

Look at the result of your mail. Response = nada, apart from me and I take it that mine wasn’t what you were looking for. I only responded because I actually have posted about age discrimination in law firms, so for a moment thought this might be a genuine mail, but then you didn’t know that I had posted on the topic, did you?

I’m damned if I’m going to help Netrank get a clue any more. Re-read the first post, assume that any references to feeling betrayed, etc., are a running joke on the theme of a dismally failed attempt at ‘a personal approach’ to PR flackery by Netrank, and have a think about the actual point.

If you want to discuss further, you have my number.

If you want to discuss further, you have this blog. I promise to let your comments through unedited [usual conditions apply].

Best Regards,

Ellie

Netrank Ltd

Fondly, Nearly Legal
By the way, Netrank use one of those completely useless disclaimer footers, in their case in a pale 8 point font. Fortunately, even if the disclaimer wasn’t ineffectual in practice, it states that

This email is without prejudice, confidential and intended solely for the use of the individual to whom it is addressed

Good. As the individual to whom it is addressed, I’m using it.

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Eleanor Precious doesn't really like me.

Published
by
NL
on 12/12/2006
in Various (non-housing)
. 0 Comments

Today I got an email from Eleanor (or Ellie) Precious, which enclosed a press release on a survey of law firms’ views on the likely effects of Age Discrimination law on their firms. I’m not going to link to it here, for reasons that will become obvious, but the firm that undertook the survey was F*x W****ams.

Now the press release wasn’t uninteresting, although peppered with links to *ox **lli**s, in fact the only links were to *** *i******. But I don’t know anybody called Ellie Precious, let alone an Ellie who routinely emails to herself with my address as ‘envelope to’. So I was curious.

Maybe, I thought, it was an eager reader, responding to my few posts on age discrimination in law firms. But Ellie didn’t mention those posts. In any case, if that were so, why wouldn’t Ellie comment on the posts?

Digging into the email headers a little, it appears that Ellie posts from a ‘netrank’ email account, part of this domain, netrank.co.uk. Netrank are, and I quote,

a group of innovative companies whose purpose is to make our clients’ websites more attractive to search engines

Oddly, Ellie didn’t tell me that. In fact, given that her email from and reply to was a ‘net-additions.com’ domain, she seems a little ashamed of her employer.

At the risk of being a little cynical, I don’t think Ellie was actually interested in this blog. In fact I suspect that she might have stumbled across this site by a basic google search like “legal professional blog uk”.

I’ve been trying to avoid this, but I can’t help thinking she was trying to get me to link to *** ******** in this blog to, oh I don’t know, maybe help bump their search engine ranking and gain legal linkage. My initial sense of being vaguely flattered at being such an obvious opinion former was rapidly tempered by realising I was being crudely targeted by a google search and a stunningly inept approach to link farming.

I feel rather betrayed by Eleanor, after she showed such interest (and actually looked for my email address on the blog and everything), so much so that I haven’t called her on the phone number she included, 01392 411299, although it was sweet of her to think I would.

Netrank, I’m talking to you now. I assume that you google references and links to yourselves.

You are crap at this. You clearly have no idea how to approach blogs for PR purposes. Post and run doesn’t work and won’t work except perhaps for a short term hit. If you want to build serious interest and linkage for your client, tell your client that they are going to have to engage with blogs, talk to them, add interesting information or responses, even run a blog of their own if there is the admittedly remote chance they might do it well. Get a blogger or two on board to learn how to approach this.

If you must cling to such pathetic methods, here is a clue or two. Don’t hide the source when it is ludicrously easy to unmask. Why pretend a person is the origin of the PR flack? Why use a method that is teetering on the brink of being spam? (Unsolicited email? Certainly. Commercial? Arguably.)

Aha, what have we here? Why it is new managing director of Netrank, Lucy Allen, claiming that

Our ethical approach combined with our outstanding research and development teams puts us at the cutting edge of the natural search industry.

That would be ethical in the sense of dissembling as a standard practice and cutting edge in the sense of ‘don’t have a clue about blogs’ then? (At the bottom of that page, it turns out Ellie is not so shy about having a netrank email after all.)

And lastly, to Fox Williams, re-read the above and have a think about the kind of online PR agency slash link farmer you want to use. The survey was interesting to me, (although perhaps not in the way you intended), but the way it reached me was, at best, annoying. I don’t respond well to that. That is one of the perils of dealing with blogs.

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What did you say?

Published
by
NL
on 06/12/2006
in Various (non-housing)
. 0 Comments

I’ve been to Court a few times over the last week or two, including a several day trial (on which more another time, as there were interesting arguments involved). Across these hearings, there have been some significant concerns raised over witness statements. Not any of mine (as in drafted by me), I hasten to add, but lessons to be learnt, nonetheless, with some very pointed remarks coming from District and Circuit Judges.

The first issue concerned witness statements made by people who can’t read. A witness statement made and signed by a witness did not have a certificate made by an authorised person as described in PD 22, despite having been made over a year before this requirement was in force. There was a challenge to admissibility of the statement, which contained one key assertion. No-one was present who could confirm the statement had been read to the witness.

Lesson – if you have old witness statements by people who can’t read, without the certificate, ensure that a fresh witness statement is taken or that a later certificated statement covers all the same matters. In this instance, as it was clear that the statement had been taken for extremely urgent proceedings, it was cautiously admitted, to be confirmed with the witness, but there is no reason to risk this.

The second issue is trickier. Often, perhaps particularly in a legal aid practice, a statement requires substantial work by the statement taker to get the details in a clear, logical and chronological form, let alone add the formalities required by the CPR and PD 32. Clearly, from what I saw at a couple of hearings, some solicitors tend to insert the facts and beliefs of the witness into something almost wholly in legalese, or in language which is far from that used by the witness.

PD 32 at 18.1 says

The witness statement must, if practicable, be in the intended witness’s own words.

and, at 20.1

A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence.

In the recent hearings, witnesses who were illiterate and had english as a second language had apparently given something like legal argument in their statements, and often used ‘refute’, ‘deny’ and ‘repudiate’ in everyday speech. When they took the stand, their oral evidence was halting and confused, as might be expected. The Courts in these hearings pointed to the CPR and criticised the statements forcefully as not being ‘in the witnesses’ own words’ to the extent that they could not be considered as the equivalent of their oral evidence. The upshot was that the witnesses’ evidence did not carry the weight that it might have done, and, in one case, although the witness’s belief in what they were saying was not questioned, the accuracy and reliability of that evidence was put in doubt.

Lesson – I have always resisted the failing of putting what is in effect legal argument into a statement (unless prefaced with ‘my solicitor has advised me that…). Still, there is always a temptation to translate the witness’s words into ‘court language’. This should be resisted as the CPR is clear on this point and, I think, rightly so.

The solicitor might be confident they have effectively ‘translated’ what the client has told them, but if the witness doesn’t understand the statement as written, who will ever know (until trial)? Witnesses, particularly those with language or literacy problems, will often sign what the solicitor puts in front of them and agree without understanding.

The flip side is that, yes, some clarity and order has to be brought to what the witness tells you, and I don’t believe the CPR is suggesting a direct word for word transcription.

But the statement must be believeable as the witness’ evidence. My rule of thumb has been that I want the witness to agree, or say ‘yes, that’s how it was’ to each paragraph, not just get a signature at the end. The best result is the witness exclaiming without prompting ‘yes that’s it, that’s what I wanted to say’.

I have, more controversially, on a couple of occasions taken some patois grammar and useage into a statement, after discussion with counsel – but this was carefully adjusted for clarity (as was mentioned in the preamble to the statement). This decision was vindicated at one of the recent hearings.

I’ll accept that any decision on the language of the statement will also be shaped by knowledge of the local courts, and there is always a risk involved as to which judge will hear the case. But at least one can then argue the CPR point, whereas a statement all too clearly made by the solicitor on the witness’s behalf may well fall foul of CPR (PD) 32, despite having the statement of truth signed.

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