Archive for September, 2007

Open letter to Jack Straw

Published
by
NL
on 24/09/2007
in Various (non-housing)
. 0 Comments

Dear Minister for Justice,

I note that in your address to the Society of Labour Lawyers you asked for the help of the legal profession in finding out why England and Wales spend more on legal aid than ‘any other nation’.

I am somewhat surprised that you haven’t got civil servants, advisory groups, commons committees and professional bodies who can explain this to you. I thought the Committee on Constitutional Affairs and the Law Society had tried to give explanations and suggestions, amongst many others. But I am delighted that you seek our views and trust that you will consider the following.

The increase in the legal aid budget that you give is apparently not adjusted for inflation. The statistics office won’t let me go back beyond 1987, but since 1987, there was about 100% inflation to 2005, and the inflation rate was, on average, quite high between 1980 and 1987. So let us be generous and say another 40%. So the equivalent legal aid budget for 1980 would be £916 million.

But this is still a sizeable increase, of course. The LSC, the Law Society, The Committee for Constitutional Affairs and others all point out that the increase has been driven by high cost criminal cases and the family sector, although uniquely, the LSC refuse to act on this information.

Now ask yourself why this increase? Might the 40 Acts of Parliament on Criminal Justice and the thousand odd of new offences since 1997 have anything to do with it? Might the record prison population be somehow linked to it? Or perhaps the introduction of new sentence structures while failing to ensure that the necessary support services are in place? You know that tends to mean expensive appeals, particularly when the Government won’t actually let any judgment go unappealed. That’s a fair few tens (or hundreds) of millions down the drain for starters.

Or in the civil sector, might the increase in social services activity, and its underfunded support services (do you see a trend?) bring about an increase in Family cases, mostly in long drawn out child care cases?

You see, Jack, if I can call you Jack. (I feel I can, since one of your jogging bodyguards once stood on my foot as I approached Waterloo Bridge, and it is hard to be formal once you have seen someone in a sweaty vest, even if accompanied by two glowing close protection officers in shiny shorts.) It isn’t just legal aid lawyers that drive up legal aid costs. In fact, I would go so far as to say it isn’t legal aid lawyers driving up legal aid costs, full stop. As is evidenced, Jack, in the fact that you are wrong to suggest that the:

“astonishing” increase in the cost of legal aid had also spurred a rise in the numbers of lawyers and their incomes.

From 1980? Maybe in numbers – although not income – adjusted for inflation. But, I’m sure that, being Minister for Justice, you have noticed that the number of legal aid lawyers has been falling dramatically over the last few years. Oh, sorry. hadn’t anybody told you? And the reason why? Because it is very hard to make a decent living off a legal aid practice, perhaps.

And I have to say, Jack, I am sad to see you deploying the old resort of the desperate hack, the irrelevant comparison, when you said:

it could not be right that in England and Wales £34 was spent per head on legal aid, compared with £10 in New Zealand, £7 in the Irish Republic, £4 in Germany, £3 in France and £1 in Sweden.

Of the five comparators, three have completely different legal systems (and hardly any legal aid worth speaking of), two have vaguely similar systems but much smaller populations, far fewer offenders, far fewer offences per head of population, less legal redress against the state or other private bodies, and, as far as I can tell, desperate and embattled ‘public’ lawyers.

So, one reason our legal aid system costs more is that it is (still despite everything) better. For one of the pillars of the welfare state, (you remember Jack, like Education and the NHS), the aim should surely be to be quality for all.

I hope this has been of some help, Minister, because whatever ‘advice’ you are receiving appears to be, shall we say, a bit lacking in detail, honesty and that vision thing.

Oh and as someone just about to become a solicitor, I would like a legal aid sector to work in. Thank you.

Yours sincerely

Nearly Legal

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Stop Equal Pay Claims – EOC

Published
by
NL
on 22/09/2007
in Various (non-housing)
. 0 Comments

I was, to put it demotically, gobsmacked by the content of a ‘warning’ from the Equal Opportunities Commission that the Employment Tribunal system is creaking under the weight of claims brought by those naughty ‘no win no fee’ solicitors. When they have exhausted the public sector, says Chair Jenny Watson, they will turn on the private sector.

And now the truly jaw dropping part:

The majority of cases involve local authorities, but the commission says the private sector is just as vulnerable to claims.

It warns that “no win, no fee” lawyers will continue to fuel the number of women challenging employers. The commission suggests a new system in which employers must agree to check their pay system for discrimination to ensure it is fair.

In return they would get breathing space – a period of two to three years when they would not have to face any individual pay claims. The Commission’s chairwoman, Jenny Watson, said: “In return for accepting a legal obligation to check their pay systems are free from discrimination and taking robust steps to put their house in order should they find they have a problem, we think employers should have some breathing space from individual claims for a limited period. “This approach – what we’re calling a ‘protected period for transitional arrangements’ – is the kind of modern approach that’s needed.”

So, the system is collapsing under the weight of equal pay claims. This is not because the public and private sector persist in unlawful pay discrimination, it is because of the ravening hordes of no win no fee lawyers bringing cases. That these cases are merited and the claims largely successful is beside the point.

Rather than improve or enlarge the system so that unlawful pay discrimination can be adressed, the answer is to offer firms a moratorium on claims while they have a bit of a think about maybe not indulging in pay discrimination. The implicit threat being that if they don’t have a bit of think, the ravening hordes will be waiting, clawing at the door for when the moratorium period ends.

And this, astonishingly, from the Equal Opportunities Commission itself. The EOC’s website boasts the motto:

The Equal Opportunities Commission is working to eliminate sex discrimination in Britain today. If women and men had equal chances in life, things would be different. We’re working on it…

Apparently not by enforcing the law.

Whether this approach persists when the EOC vanishes into the Blob-like CEHR, we will have to wait and see.

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Enough already

Published
by
NL
on 20/09/2007
in Various (non-housing)
. 0 Comments

My last post on the Hyman affair (at least unless or until something else interesting turns up) is just a pointer to this story, an ‘exclusive’ interview with Hyman’s client. I had missed this on the entirely justifiable basis that it was in the Mail on Sunday. It manages, in a quite glorious way, to make you loathe everyone involved in the whole saga.

Unsurprisingly I was right a week or two ago. Hyman’s client, the former ‘radio executive’, naturally being skint because ‘I had not worked since my marriage broke up’, is suing him. Ms Sanders Young demonstrates the creative flair that supported her media career by deftly avoiding cliche: ‘My life was turning into a Kafka novel’, she said.

But the overall reliability of the story may be judged by the assertion that Hyman didn’t know when he sent the fatal email that emails could be traced:

What he didn’t know, until Karen explained to him later, was that emails could be traced.

He walked into his legal chambers in some distress a couple of days later and resigned.

Nah. One doesn’t suddenly borrow an internet connection from a shop in the Tottenham Court Road to send the email if you don’t know emails can be traced.

A reminder that, as ever, when principles are lost, the circumstances are not dramatic, let alone glamorous, just tawdry.

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Hyman and Doughty Street

Published
by
NL
on 19/09/2007
in Various (non-housing)
. 0 Comments

Doughty Street Chambers have a press release on their front page about Bruce Hyman. It reads:

There have been several false press reports that Bruce Hyman, a barrister who has pleaded guilty to an attempt to pervert the course of justice, was a member of Doughty Street Chambers. Mr Hyman was in fact a pupil, attached to Doughty Street Chambers only for a few months of his training period, having successfully completed a 12-month pupillage at Blackstone Chambers. He resigned before he could be considered for membership of Chambers and nobody here had any inkling of his criminal behaviour.

Frankly they should have said so earlier, as the rest of us were left to make do with items such as this, this (third column from the left, bottom), this and this, some of which are from Doughty Street, all of which clearly identify Hyman with Doughty Street or ‘at’ Doughty Street.

Certainly rumours have been circulating about Hyman and Doughty Street since news of his guilty plea broke. That would have been the time to clarify matters.

Although this actually makes matters murkier. Some accounts say that Hyman only resigned from Chambers when told to by the Judge in the criminal proceedings. Does this mean he was still a pupil at that point? Was he therefore a pupil when he was acting in the case that was his downfall?

Nice smearing of Blackstone Chambers in the press release, though.

[Edit 20/09/07. In the comments to this post, a barrister with knowledge of the history has confirmed that Hyman was a pupil, probably third six, and given some background to the mitigation argument and Hyman's resignation from Chambers.]

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Coming soon – Hyman, the Prison Diaries

Published
by
NL
on 19/09/2007
in Various (non-housing)
. 0 Comments

So Bruce Hyman got 12 months for perverting the course of justice, thanks VM for the details. The Beeb has a photo of Hyman looking furtive, as well he might.

That may be longer than other media people have received for looking at child porn, but I have to agree with VM that, considering Hyman was entirely prepared to see the opponent he framed go to prison, it doesn’t seem like quite enough. Perhaps a new charge of ’stamping repeatedly on justice’s weeping face while laughing maniacally’ should be introduced for these occasions.

One presumes he will now be disbarred without further ado.

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Oh the irony…

Published
by
NL
on 17/09/2007
in Various (non-housing)
. 0 Comments

First, a tip of the hat to John Bolch at Family Lore for spotting that the LSC has increased its provision of grants to for ‘legal aid’ traineeships by 100, on top of the current 492 (apparently, but only 71 firms involved?). While the grants might seem like a good thing, and in some ways certainly are, one has to ask why they were necessary in the first place (legal aid firms being skint and uncertain about the future, perhaps?). Plus, given that the traineeship has to be offered before the prospect takes the LPC, how many firms have enough faith in the future to promise a place 1-2 years down the line? Still cheap subsidised labour is not an unattractive prospect for some involved, I suppose.

Above all though, it takes a certain kind of cheek for the LSC to be ‘ensuring the future’ of a sector it is otherwise trashing, and paying to train people whose odds of find a legal aid job frankly ain’t going to be great for that very reason.

Secondly, Nearly Legal’s Search Engine Optimisation (SEO) tip.

Yes, for all those out there desperate to get more traffic to their blawgs, no matter how briefly the visitors stay, you too can see a dramatic and regular uplift in your hits, just by mentioning Sally Field Naked (SFN). Granted, it is difficult to just drop the phrase into a law blog, but since last I last mentioned this phrase, the hits have gone through the roof. 60 today alone, finally toppling ‘tolerated trespasser’ from the top of my search hits. So, have a little creativity and come and join this blog in the top 4 google results. Just a mention of SFN every 30 posts or so will do it and your stats will never be the same.

I’m not sure what this says about the world and I am fairly sure I don’t want to spend too long thinking about it. However, I do know that I am probably annoying a small, specialist sub-section of the world and I take a certain pleasure in that. I’m not sure what this says about me.

[18/09/07 - of course. Ms Field has just won an emmy. Naturally on seeing the news that someone has won an Emmy for playing a mother, one promptly searches for naked pictures of her.]

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Disability and tenancy – More on Malcolm

Published
by
NL
on 15/09/2007
in Housing law - All and Possession
. 21 Comments

Table of contents for Disability Discrimination

  1. Catching up – Disability Discrimination and possession
  2. Disability and tenancy – More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination – the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords

I posted on Lewisham v Malcolm ten days ago. Since then a couple of commentors have raised issues and Tessa has posted on the implications of the case at Landlord Law. So it seemed worth a further look. The caveat is that what follows is my understanding of the Judgment and so is entirely capable of being wrong.

Tessa’s post makes some suggestions that I don’t think I agree with in terms of the Judgment. Tessa says:

The Judge refers in paragraph 52 to two County Court decisions, one of being a case where a Judge refused to make an order under s21 where the tenant was disabled, as examples of courts happily adapting to the DDA 95 without difficulty.

The thought of landlords being unable to evict tenants under section 21 because of the DDA will send a shiver down the spine of all private landlords, and may well result in a private determination not to knowingly let to any disabled tenant in future. This will do nothing to help the prospects of the disabled (particularly those suffering from mental illness) obtaining accommodation in the private sector.

Firstly, the reference at para 52 is to two examples put forward by Counsel for Mr Malcolm as examples of the Court’s adopting the DDA “without insuperable difficulty”. Lady Justice Harman does not criticise this assertion, but does not adopt it either.

Secondly, and more importantly, we are not given details of the s.21 case, Community Housing Association v Wye. However, I can only conceive of such a verdict being reached in a particular way.

I think that Malcolm is clear that the operation of the DDA is distinct and does not amend Housing Act 1985. By extension, neither will it amend Housing Act 1988. So it is not the case that there is suddenly a defence to a s.21 Possession claim within the terms of HA 1988. It is not the case that the Courts suddenly have the power to consider reasonableness, or to require additional grounds for possession to be met.

However, where an eviction is sought ‘for reasons related to the tenant’s disability’, then the DDA is engaged and a defence not to the possession claim, but to the lawfulness of bringing the claim is possible. S.21 Possession claims do not require grounds, so I can only imagine that the tenant was able to adduce sufficient evidence that the landlord was seeking his/her eviction for reasons related to his/her disability, without justification. This is independent of the kind of possession proceedings brought (s.21, s.8 or whatever). Thus the s.21 claim would be unlawful. Granted, this is applying the logic of Malcolm to a prior case, but even so it seems likely.

In my opinion, this is not an unwarranted interference with the private landlord’s freedom to gain possession under s.21. This is exactly the kind of discriminatory behaviour the DDA was aimed at.

As far as I can see, this is NOT a general prohibition on possession claims against and eviction of disabled tenants. It is not an interference with s.21. It is a defence of unlawfulness where the s.21 claim has been made for reasons related to the tenant’s disability.

Having said that, I completely agree with Tessa that if landlords do get the wrong idea and stop letting to disabled people, that would be a Bad Thing. This is also the kind of thing that myths quickly grow up about, so clarity about the effect of the DDA is vital.

A commentor on my previous posted asked simply, either in hope or fear, whether this meant disabled tenants with rent arrears couldn’t be evicted. The above contains the answer, which is no, depending.

William Flack commented on the previous post about the position that Mr Malcolm was left in by the Judgment, as his tenancy was not revived. LJ Arden addresses this at para 121 and 122. As the DDA defence does not override HA 1985, it remains the case that Mr Malcolm’s secure tenancy ended with the illegal sublet. As LJ Arden notes, whether he then has a contractual tenancy depends on whether the Notice to Quit was unlawful as well as the Claim for Possession. If it was unlawful, he likely has a contractual periodic tenancy, if it was not, he is likely to be a tolerated trespasser.

But I can’t quite see how an application for revival of tenancy could be made. There is no possession order to vary, no proceedings within which a s.85 application can be made.

As the DDA s.22(3)(C) refers solely to eviction, not the determination of tenancy, and as the Court of Appeal was divided over the lawfulness of the Notice to Quit (on grounds of whether knowledge of disability was required by the landlord for the act to be unlawful), Mr Malcolm’s status is unclear and likely to remain so. If the possession case had been about breach of the tenancy agreement or any other ground other than statutory determination of the secure tenancy under HA 1985, the position would be much clearer and simpler.

That turned out to be longer than I thought it would be. I’d better be right, after all that.

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Quantum in Disrepair

Published
by
NL
on 13/09/2007
in Disrepair and Housing law - All
. 12 Comments

point at the problemI’ve been meaning to post on this for a while and have been prodded into life by quite a few searchers on the topic. The reason I’ve been delaying is that, frankly, it is a bit of a sod. Unlike the carefully calculated, quantified, actuarialised and tabulated scales of Personal Injury claims, disrepair quantum is at best foggy, at worst an aporia.

There are reasons for this, mostly the lack of cases taken to trial, and with it lack of detailed ‘authorised by the higher courts’ means of assessment. It is also because the heads of damages aren’t as clear, being allegedly contractual but with a vague importation of tort.

This is my attempt to summarise the current situation, with a suggestion of where matters might move and why they are unlikely to.

From 1998, the main case has been Wallace v Manchester 30 HLR 1111 (also as [1998] EWCA Civ 1166). Wallace said firmly that the base of quantum is contractual, not tort, the principle being the restitution of the difference in value between the property with disrepair and the property if the landlord had fulfilled the repairing obligation. Discomfort and inconvenience for the tenant are a part of this head, not a separate, tortious, head of damages.

But how to assess this? Wallace was wonderfully vague. Either a Global Award – an assessment of damages as a whole – or a Nominal Reduction approach – an award for reduction in rental value – or both as one. But Wallace did suggest that a global approach should be cross checked against a nominal approach.

However, Wallace did unofficially set up a tariff of an award of between £1,000 and £2,750 per year as a scale for disrepair. Updated for inflation, that is now £1264 to £3477 per year of disrepair, depending on the seriousness of disrepair.

proverbial mould[Now, before any non-housing lawyers and tenants reading this start getting their calculators out to work out what their compensation payout will be, it isn't that straightforward. This is assuming that there are no liability issues, no issues about notice or access, the tenant has excellent records and, for reasons explained below, no settlement offers are made. It is safe to say that this never happens. This is a tool for considering a range of likely compensation, no more. Settlements therefore tend to be lower than the tariff figures suggest, read on for other reasons why.]

Oddly, this tariff has become the norm. Most settlements work on some form of the Wallace scale. I say oddly because the Nominal Reduction approach, based on rent payable, could, even at the time of Wallace, produce higher awards.

More recently, Niazi Services Ltd v Van der Loo [2004] EWCA Civ 53, and English Churches v Shine [2004] EWCA Civ 434 have gone some way to affirming a Nominal Reduction approach, based on a proportion of rent. While this means that the maximum award is limited by the rent ( and that higher rental property will attract a much higher award for relatively small disrepair), given that even a low average social tenancy rent is worth £4000 per year, an assessment of damages is likely to be higher than the Wallace tariff (even adjusted for inflation. The Wallace tariff in that case amounted to a scale of something like 50% to 100% of rent, as far as I recall).

By the way, Earle v Charalambous [2006] EWCA Civ 1090 confirms the use of the nominal approach, but also gives leaseholders the route of a proportion of an assessed open market rental value as the base for the rent value. The argument rejected was that a nominal rent approach was not open to leaseholders claiming for disrepair.

Why haven’t calculation and negotiation of damages moved to a nominal rent model? This would be likely to raise damages on the whole, even if not by a very large amount in many cases.

The answer is not straightforward. But the main reason is risk and the Civil Procedure Rules (CPR).

Hardly any disrepair cases get to trial, as most get no further than a negotiation over settlement. But trial is the only place where the valuation approach will be tested and confirmed, also giving a useable precedent.

Why do the cases usually settle? For the non or student lawyer readership, the answer is risk resulting from the effects of Part 36 of the CPR. For instance, if a few weeks before a trial date (or indeed at any point before that), the landlord makes an offer of settlement that is reasonable but at the lowish end of the scale from your estimation of the claim, the calculation goes like this:

If the matter proceeds to trial, the extra legal costs from the point of the offer are likely to be c. £5000 (at an absolute minimum for both sides’ costs). If the claimant does not get a damages award at trial that is better than the offer, they will be liable for the legal costs of both sides from the closing date of the offer. So, if the offer is in the range that a court may award, there is a genuine risk that the claimant will end up liable for the £5000(+) costs. This will wipe out or severely dent any damages award actually made, because the costs will come out of the damages.

The same calculation pretty much applies for legally aided, private and ‘no win no fee’ (CFA) clients. So, the discrepancy between the offer and what the claimant’s solicitor (and barrister) think is the likely range of damages at trial has to be very large to go ahead. This takes a strong claimant’s case and a rather bad defendant – which rarely happens. Alternatively, it takes a private client who is happy to bear the risk and go on even after advice, which rarely happens. Neither legal aid funding nor a CFA will usually support the burden of risk.

The Part 36 offer rule was intended to make cases settle, and it works. But in disrepair, I’d suggest it is keeping disrepair damages artificially and unfairly low.

I would be delighted to hear any accounts of disrepair damages awards at trial from readers. I do have a couple of recent examples, but the circumstances are both utterly distinct and relevant to the award, so anonymity, alas, forbids. Suffice it to say that in both cases, the Court inclined to a nominal percentage of rent approach, rather than the Wallace ‘tariff’.

What counts as serious or less serious disrepair is a matter of fact, evidence and some common sense. But is also a topic for another post.

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Possession claims dropping? Not all.

Published
by
NL
on 11/09/2007
in Housing law - All and Possession
. 0 Comments

The latest figures, up to Quarter 2 2007 are available on the Ministry of Justice site, link to the PDF.

The figures show quite a drop in the Q2 figures for non-accelerated possession claims issued (including claims by Councils and Housing Associations) compared to Q2 2006:

Q2 2006 32,465
Q2 2007 28,661

The figures for possession orders made also show a drop, although smaller both absolutely and proportionately:

Q2 2006 21,807
Q2 2007 19,542

This may show the effect of the Rent Arrears Pre-Action Protocol. Hopefully compliance with the protocol means less need for claims to be issued and/or stops claims being issued merely as ‘enforcement’ for agreed arrears repayments, or to poke housing benefit into action. On the other hand, it may just be that the protocol has made issuing a claim trickier.

Certainly, we have been getting fewer inquiries from social housing tenants facing arrears possession claims. Which is slightly annoying, as for various reasons, an arrears possession claim with a decent disrepair counter-claim would be very useful at the moment.

Meanwhile, private sector s.21 accelerated possession procedure claims and possession orders are rising. Claims issued:

Q2 2006 5,800
Q2 2007 6,493

Possession orders made:

Q2 2006 4,203
Q2 2007 4,628

Notably, for a no fault, mandatory order process, a lot of claims are unsuccessful (an increasing number 06-07). One can only presume that a lot of private landlords are making a horlicks of the process, as I doubt many s.21 claims are settled or withdrawn.

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Obvious filler 5

Published
by
NL
on 09/09/2007
in Various (non-housing)
. 0 Comments

Time for another in the intermittent series of startling insights into human life afforded by the search terms that somehow brought people to this blog. Also known as a lazy post on a Saturday night.

By the way, the campaign to make Nearly Legal the blog of choice for anyone searching for ‘Sally Field naked’, which I started in October 2006, has had remarkable success, given that I haven’t actually done anything at all. I am humbled to find that Nearly Legal is now the fifth link on the first page of Google’s results. Hell, people pay good money for that kind of placement. And the eager searchers do arrive en masse, 52 in August alone, making ‘Sally Field naked’ the third most popular search term for visitors. I’m sure Ms Field will be pleased to know that she has such a large, if overly inquisitive, group of admirers.

Of course, plenty of the other flotsam of human desire washes up on Nearly Legal

images of women stripped to the waist
legality of spanking in bc
sian lloyd naked
sex puzzles

As does rage, sometimes strong enough to interfere with spelling

trespasers will be shot
legality of baton ownership
legal revenge

and the inevitable come-down

feeling bad because of in laws

Not that law is exempt from the mess of our behaviours and bewilderments….

fake person calling city law firms for advice

Are they paying their bills? That’s the important question, surely.
Other people have clearly been sold a pup

buying kitten law misrepresentation

or are looking to the law to justify their meanness of spirit

is it law to leave a tip
legal contract wiggle room

or their uncouthness

english law can you spit in public

Naturally, this being England, problems with neighbours and acquaintances loom large

my next door neighbours are seeking a judicial review?

which will be that bloody Lleylandii hedge again. Next, the quiet english village sees a spate of poison pen letters…

am i committing libel by writing to one individual

Other searchers seem destined to a short legal career themselves. Faced with

what does dx mean in legal speak

one suspects that summer job in the law firm will not be a success. Others suffer less from ignorance and more from, cough, carelessness

i am a trainee soilcitor and caught without a train ticket

Oh dear.

Then there are the search terms that are plain mystifying.

legal assault by placebo

Assault by a harmless, effectless substitute? Tricky to prove, I’d have thought. On the other hand

swallowing sulphur

What? You want instructions? Or worse, this person just had swallowed sulphur and thought maybe they’d sit down at their computer and just have a look at what the effects might be. I hope they found out before the burning and diahorrea kicked in.

Ah, the internet. All human existence from ejaculation to evacuation is out there. But quite why they came here is less than clear.

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