Archive for October, 2007

Homelessness and Ex Parte Injunctions - a warning

Published
by
NL
on 16 October 2007
in Housing law and job
. 0 Comments

Mr Justice Munby has issued a stern statement on the use and abuse of ex-parte injunction applications to the Administrative Court in R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin).

Covering failure to use the Pre-Action Protocol, non-disclosure of material evidence, unexplained delay and requests for unreasonable periods of notice for application for discharge (48 hours, in this case) in draft Orders, the Judgment marks the Admin Court getting distinctly annoyed at what are scathingly described as ‘prevailing professional approaches’ in both the Family and Administrative Courts.

Through the Looking Glass

Published
by
NL
on 16 October 2007
in Housing law, Legal Aid and job
. 2 Comments

‘It seems very pretty,’ she said when she had finished it, `but it’s RATHER hard to understand!’ (You see she didn’t like to confess, ever to herself, that she couldn’t make it out at all.) `Somehow it seems to fill my head with ideas — only I don’t exactly know what they are! However, SOMEBODY killed SOMETHING: that’s clear, at any rate — ‘

There was a good, if unsurprisingly doom-laden article in the current Gazette on the post first of October introduction of fixed fees in some areas of Civil Legal Aid. What is confirmed is the strange looking glass world we are entering in pursuit of the new order and, as also reported in the same issue, savings of {L-} 300 million in the Legal Aid budget by 2010. I don’t want to rehearse the contents of article, but some things bearing further musing on.

The Demise of the Specialist

‘Crawling at your feet,’ said the Gnat (Alice drew her feet back in some alarm), ‘you may observe a Bread-and-Butterfly. Its wings are thin slices of Bread-and-butter, its body is a crust, and its head is a lump of sugar’.
‘And what does IT live on?’
‘Weak tea with cream in it.’
A new difficulty came into Alice’s head. `Supposing it couldn’t find any?’ she suggested.
‘Then it would die, of course.’

It has long been clear that the LSC’s vision is of large ‘all-in’ suppliers, covering the range of advice areas, so that clients with multiple issues - as many have - can have them addressed all at once. This is not a bad idea, although quite how it fits with the promised open competition is deeply unclear, as that is one hell of an entry threshold. But the implementation of the transition is strange.

For instance, my firm largely although far from exclusively operates on a specialist level, with referrals from local advice agencies on difficult matters or cases in which heading to court is the only option. We also have an informal referral procedure back to those agencies. We are far from alone in doing this. It makes sense, where there are capable advice agencies, to work in this way. There is way more than enough specialist work to keep us overworked. And we are, though I say it myself, a highly skilled team.

However, for housing, the new provisions require every provider to take on ‘a range’ of matter starts under the fixed fee Legal help (£171), with only a small proportion heading on to Certificate (where fixed fees don’t _yet_ apply). This means that we will have to spend a considerably increased amount of time on ’simple’ matters. This costs us for two reasons: because £171 is ludicrously unrealistic for dealing with anything that isn’t instantly dealt with at initial interview, and given that the usual client has little or no documentation, it rarely is; and because the additional time spent on dealing with funding documents and client care for even a matter finished in half an hour.

Presumably, for the LSC, it means that we are in ‘competition’ with the advice centres, and other firms, for the unproblematic, in-and-out, advice work that we currently don’t do much of. Except that we aren’t, because there is absolutely no shortage of people needing that kind of advice, at least in our area.

So, the effect is to trade a moderate increase in capacity for minor or relatively straightforward advice matters for a reduced capacity for complex, specialist cases. As the LSC’s claimed desire is for an increase in both the acts of advice and the effectiveness of advice, this seems beyond odd. Many people will be denied the specialist representation that they need, not because of a lack of specialist advisors (although that may well come to pass) but because the specialists are restricted in the deployment of their ability.

One Contract per area

‘Not you!’ Tweedledee retorted contemptuously. ‘You’d be nowhere. Why, you’re only a sort of thing in his dream!’

‘If that there King was to wake,’ added Tweedledum, ‘you’d go out — bang! — just like a candle!’

Now we are up to eight canvassed CLACs, Hull being the latest. It is interesting, to say the least, that we don’t know whether independent providers will still receive a franchise in areas where a CLAC is in operation. It seems doubtful, as one contract per area seems to be the aim. Again, how this plays into a competitive future is unclear. A monopoly provider, whether dubiously funded by and at the mercy of the local authority or not, can hardly face a creditable challenge from a newcomer. Who would be mad enough to attempt to undercut a local authority subsidised, paralegal staffed basic advice factory in any case? It is, I think, fairly clear that the desired future is not competition but a sole local provider which is, in effect, a creature of the LSC.

Diversification

The shop seemed to be full of all manner of curious things — but the oddest part of it all was, that whenever she looked hard at any shelf, to make out exactly what it had on it, that particular shelf was always quite empty: though the others round it were crowded as full as they could hold.

Looking for other income streams? Training - AKA poacher turned gamekeeper - comes to mind. But get in quick, this is likely to be a crowded market before long. Maybe act for a Social landlord or two or three - but at what point does this cut too much of your public client base off through conflict of interest? As a first step to going wholly private client? Why not. So the LSC’s approach to building a strong legal aid provision is to get the specialist skilled providers to act for the opposition.

Triage

However, this was anything but a regular bee: in fact it was an elephant — as Alice soon found out, though the idea quite took her breath away at first.

If you want to expand, and maybe be a contender for the sole regional/area provider, there is one clear route. Yes, you need to take over other firms to give the ‘all-round’ provision, but you also need to develop a large frontline staff to do a quick turnover of the ’simple acts of advice’. In a glorious euphemism, this is referred to as ‘generalist advice’ by Howells in Sheffield. It actually means basically trained, cheap paralegals. The trouble with basically trained, cheap paralegals is that they don’t spot when a real issue or potential case presents itself if it is at all out of the ordinary. (No offence to basically trained, cheap paralegals - it is a training and supervision issue). It is a little like having Accident and Emergency triage done by the porters and receptionists, not trained paramedics and nurses.

The economics of a paralegal based Legal Help factory do still, just about, make sense. But this is not the quality provision the LSC is allegedly pledged to sustain.

Efficiency, we keep being told, doesn’t mean a drop in quality. The trouble is that the project here isn’t about efficiency per se, but about a centrally driven model of practice, imposed regardless of carefully nurtured local arrangements of distribution of effort, access to advice, whether general or specialist, and efficiencies of delivery.

`A slow sort of country!’ said the Queen. `Now, HERE, you see, it takes all the running YOU can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!’

The Advice Centres, our current referrers, will be amongst the first ones to go under. One local advice centre has been informed that under the new funding arrangement, they will need to take on twelve times as many cases. Yes, twelve. Ironically, it was Advice Centres’ ‘cheap’ rate of advice that enabled the LSC to say the the new fixed rate is higher than ‘half’ of service deliverers charge. Advice Centres, in my experience, had never properly figured out what their costs were. They didn’t have to and it simply wasn’t in their culture. The imagined charge rate of those who didn’t carefully tot up billable hours is being used as a measure of efficiency for the rest of us, while the supposed models of efficiency are facing absolute crisis.

As the last looking glass moment, my firm, which tended to cost the LSC relatively little (being as we tended to do Claims/Counterclaims, Judicial Reviews, County Court Appeals etc. where costs can be and usually are successfully pursued against the opponent), is now likely to cost the LSC significantly more, despite the significant slash in our fixed fee Legal Help rates. Quite how this is an efficient use of those precious Legal Aid funds is beyond me. But…

One thing was certain, that the WHITE kitten had had nothing to do with it: — it was the black kitten’s fault entirely.

Homeless with shared residence order

Published
by
NL
on 12 October 2007
in Housing law
. 12 Comments

[Edit Feb 2008 - Richmond have been given permission to appeal this judgment to the House of Lords. No date yet.]

An interesting situation, if perhaps an increasingly common one, has just been set out in the Court of Appeal case of Holmes-Moorhouse v London Borough of Richmond-Upon-Thames [2007] EWCA Civ 970.

The situation is a family break up where, by consent or otherwise, a s.8 Children Act 1989 shared residence order has been made for the children. One parent then applies to the local authority as homeless and claims resident children as priority need.

In this case, the local authority said no priority need for the father as the mother was receiving benefits and had housing for the children. Upheld on review and on County Court Appeal.

In a Judgment that takes a survey of the current situation, the Court of Appeal held that in the case in question, the local authority was wrong in that its decision referred to the children ’staying’ with the father and living with the mother. The Court was clear that

A child who is residing with each parent is living with each of them; he is not living with one and staying with the other.

But beyond this, the Court gave guidance on the assessment of homeless applications by those with residence orders.

To note:

Where the shared residence order is contested, the local authority has had the opportunity to make representations on housing issues. It is therefore for the local authority to follow the decision of the Family Court.

Where the shared residence order is made by consent, and the local authority has not had the opportunity to make representations, then

there is every reason that the local authority should consider afresh the reasonableness of an applicant’s expectation that a dependent child will reside with the applicant. Furthermore, in considering the reasonableness of that expectation, a local housing authority is not just entitled, but obliged to consider the extent to which the children’s needs require the child to live with, as opposed to stay with, the applicant.

The requirement is that the local housing authority be able, carefully, to enquire into and consider the children’s needs in assessing the reasonableness of the parents’ expectation.

The suggestion, via R (Bibi) v Camden London Borough Council [2005] 1 FLR, 413, seems to be that a 50/50 residence order should be sufficient to make the ’staying with’/'living with’ difference.

Where the Local Authority, having considered afresh the reasonableness of the applicant’ expectation, refuses the housing duty, the applicant should return to the Family Court for a reconsideration of the residence order.

Should the order be confirmed by the Court, one would imagine that a fresh homeless application could be made, this time with the equivalent of a contested order, but the Court doesn’t say this.

Legislation Search and RSS feeds

Published
by
NL
on 10 October 2007
in Housing law, law blogs and blogging, tech and whatever
. 0 Comments

Thanks to Binary Law for the news that the OPSI Legislation search now comes with an RSS feed on searches for easy updates.

Unfortunately, having spent an evening wrestling with it, I’d damned if I can get specific search feeds to display on this blog. The feeds either aren’t recognised by the Wordpress plugins I’m using, or involve some not insignificant code hacking to display at all, albeit badly, on a separate page.

I’m going to spend some more time trying to sort this out, when I have time, but for now here are the links for search feeds on ‘Council Tenancies‘, ‘Social Housing‘, ‘Housing Associations‘, and ‘Landlord Tenant‘. Enjoy.

I now have trial bundles to prepare in a multi party claim that stretches back over 3 years. I may be silent for some time. Or longer.

Reincarnation of Tenancy?

Published
by
NL
on 8 October 2007
in Housing law
. 6 Comments

This is more of a question than a post, a question on a problem that I think I understand, but that I hope has a better conclusion than the one I’ve got to.

The issue is when can a new tenancy be effectively said to have arisen after a Suspended Possession Order (assuming that it has either been breached or is a post 2001 form N28 order)?

In particular, when a tolerated trespasser has paid off rent arrears and court costs, so that they cannot apply under s.85 to vary the date of possession, when does a new tenancy arise? If it does at all?

The same issue can and does apply for others who haven’t yet paid off the arrears, depending on the actions of the landlord. A new tenancy might have come into existence, even if the arrears haven’t been paid off, and in some circumstances, this might be preferable to a s.85 application to vary the date of possession.

It seems to me that the current position is summarised by Swindon v Aston [2003] HLR 610 and Lambeth v O’Kane [2005] EWCA Civ 1010.

  • No new tenancy is automatically generated when the suspended possession order ceases to be enforceable because arrears and costs are paid off (Swindon v Aston).
  • It takes more than the usual, routine documents to create a new tenancy - so notices of ‘rent increases’ etc. are not sufficient to indicate that a new tenancy has been entered into by the landlord. It takes something that indicates a clear intention to enter into legal relations on the the part of the landlord to create a new tenancy (Lambeth v O’Kane).

So, for a tolerated trespasser, or perhaps - if all the arrears and court costs have been paid off, a bare trespasser (London & Quadrant v Ansell), if the landlord does not expressly grant a new tenancy, what are they to do?

Many people will be stuck, of course, but my question is what is arguable as evidence of the landlord’s intention to create the legal relation of landlord and tenant, after a suspended possession order and tolerated trespasser status?

Our current view is that it is sufficient for the landlord to bring fresh possession proceedings, even if only by serving a new Notice Seeking Possession, to argue a new tenancy was created. An NSP, rather than Notice to Quit or warrant, clearly implies a recognition of a legal tenancy on the part of the landlord.

Although not uncommon, this is hardly certain to happen. So, my question to the housing law multitudes who read this blog is, given that mere notices of rent increases, or even notices of change conditions of tenancy are not enough, post Lambeth v O’Kane, to create a new tenancy, what else might be sufficient to argue the landlord’s intention was to enter legal relations of landlord and tenant?

Article Series - Tolerated Trespassers

  1. Tolerated Trespassers - the aftermath
  2. Tolerated trespassers: A Luta Continua
  3. Postponing Possession. Are you now and have you always been a tenant?
  4. Assured trespassers?
  5. Assured tenant or trespasser? The waiting begins.
  6. Postponed assured trespassers verdict soon(ish).
  7. Permanent trespassers and enforceable possession orders.
  8. More on London & Quadrant v Ansell
  9. White v Knowsley - Court of Appeal Judgment
  10. Reincarnation of Tenancy?
  11. S.85 Application Randomness
  12. Permanent trespassers - a fan letter
  13. Payne-less
  14. Post mortem revival of tenancy
  15. When does enforceability end?
Previous in series: :Next in series

Honest Guv, it’s a genuine da Vinci.

Published
by
NL
on 7 October 2007
in whatever
. 1 Comment

I am once more indebted to Victorian Maiden for noting the arrest of a senior partner in the recapture of the Madonna of the Yardwinder, violently lifted from Drumlanrig Castle four years ago.

Calum Jones of HBJ Gateley Wareing in Glasgow, a specialist in corporate finance and corporate insolvency, was apparently arrested in the course of a meeting with an insurer, a valuer and an art expert, and the painting was found in HBJ’s offices. HBJ say there was “an interesting, but benign, explanation” for Mr Jones’ involvement. Interesting, it should be. Mr Jones insists that he was helping with the painting’s ‘repatriation’.

VM wonders how difficult it is to say ‘give it back’. But the world of high end art theft and/or ransom is a very murky one, as the many recent cases involving paintings by Munch, Carravaggio and others tend to demonstrate. Once big money from insurance companies is involved, let alone the inherent shadiness of the art world, (oh and criminals) nothing is quite what it seems, including whether the painting is a Leonardo da Vinci at all.

For instance, what of the involvement of both the Serious Organised Crime Agency and the Scottish Crime and Drugs Enforcement Agency in the raid. Has SOCA incorporated the old Art Theft team? Was this a set up, or tip off? If so, by whom? Was the £1 million reward (presumably put up by the insurance company) involved?

What on earth was the painting doing on the premises of HBJ? That, by itself, would tend give a certain credence to Mr Jones’ version of affairs. It wouldn’t be the first time that a third party has acted as go between for the thieves and the insurers. But then what the hell was a corporate finance partner doing in this sort of set up?

Add in the second solicitor arrested, Marshall Ronald, who has, as VM notes, a very interesting history, and events get even murkier.

The Scottish police announced that the painting recovered has been examined and ‘found to be genuine‘. Well, for certain limited values of genuine. It is hotly disputed whether the painting is a Leonardo da Vinci, or a ’studio of…’. There are three versions of the painting in existence and Leonardo rarely if ever duplicated his own work. Many consider the Drumlanrig to be a ’studio of’, not a Leonardo. From the photos, I can see why. I’ll bet there have been some very intense discussions over insurance value, which the Duke of Buccleuch will have to repay if he wants the painting back.

This one should get even more unclear if and as the story comes out.

Busted

Published
by
NL
on 6 October 2007
in whatever
. 0 Comments

In one of the least surprising brassiere related decisions ever by the Solicitors Disciplinary Tribunal, Daniela Scotece has been struck off the roll.

Ms Scotece, an erstwhile criminal defence solicitor at the Nottingham Johnson Partnership, was convicted in April of passing cannabis to a client by smuggling it in to the cell at a Magistrates hearing. The cannabis was concealed in her bra, but that didn’t stop a sniffer dog. Possibly even worse, from the Court’s point of view, she had abused the judicial process to get her client to court.

For some reason the Guardian has now decided she hid the drugs in her knickers, but never mind. I did rather like the Judge at her trial reportedly saying ‘she had completely blurred the line of professional conduct‘. A bit beyond blurring, I’d have thought, as supplying illegal drugs isn’t really a professional grey area.

Also busted is the Government for failing to follow Cabinet Office guidelines in publishing the results of consultation on its proposals to restrict the powers of the Court of Appeal in criminal cases. The Government had failed to make public the fact that senior appeal court judges, the council of circuit judges and the Criminal Cases Review Commission all thought this was a cretinously bad idea.

The measures, restricting the powers of the Court to overturn a guilty verdict where there were procedural faults in the process if the Court still thinks that the Defendant did it, are going for a second reading in Parliament.

Let me just get this clear for myself. If you are convicted as the result of a flawed process - meaning that pre-trial or trial was not carried out properly - your conviction will not be overturned if the appeal court thinks you most likely did it anyway, which can only be on the basis of… well, the evidence in the flawed trial? Brilliant.

Simply the Best

Published
by
NL
on 5 October 2007
in law blogs and blogging
. 12 Comments

I don’t do memes. In fact I am something of a Darwinian nightmare environment for memes, they land in this blog and, right there and then, reproduction ends. This might suggest why I’m not doing family law.

However, having been kindly been tagged by both Charon QC and Binary Law with the ‘your current 10 best law blogs’ meme recently started by the ever so anonymous Ed. of Blawg Review, I am going to abandon the rule of a lifetime and join in.

Why? Because this meme, plus a potential post I was mulling over, provisionally entitled ‘Damn, We’re good’, together with a post on ‘the social blog‘ by Binary Law and another on Binary Law on ‘Where are we now‘ have all come together in one great big symphony of synchronicity. It is time to celebrate Brit Blawgs.

My tentative hypothesis is that UK blawgs are hitting a tipping point or maybe entering quite a new space. Not because there are suddenly many more of them, although numbers are slowly increasing, but because a lot more people/lawyers are reading them, commenting on them and taking them seriously as forums. What follows is my anecdotal evidence for this conclusion, scattered with links to the obligatory ten personal recommendations.

Item: In the last six months, this ‘umble blog has had comments and moreover discussion from, in no particular order: Paralegals, QCs, specialist solicitors, members of Fathers 4 justice, junior barristers, assorted ‘non-legal’ individuals, JPs, trainee solicitors, BVC and LPC students, pupil barristers and a shadow Minister.

Significantly, most of the commentors are not themselves bloggers. Please believe this is not said to blow my own trumpet, but considering that this is a blog by a (now) trainee solicitor which only began in June 2006, I am astonished not only by who reads or encounters this blog, but by the frequency and quality of comment. For heavens’ sake, I focus on housing law, this is not generally considered sexy. When I started blogging, I had no idea who the readers would be, but I suspected they would be limited. I presume I was not alone in this. I have certainly been guilty of assuming that the majority of readers came from a fairly closed circle of UK blawgs and their readers, but the last few months have been an eye opener in that regard. To generalise from my experience, we may not get huge traffic, but we do get very ‘interested’ traffic and to that extent UK blawgs are increasingly punching above their apparent weight in terms of visitor numbers.

Item: Specialist knowledge and contacts produce results, to be sure, but Charon QC’s remarkable recent series of podcasts with the major players in English legal education and training, including those who actually refused interviews to the BBC, shows not just access, but that his is a forum with influence. Once one had taken part, the others wanted to have their say, and the result is impressive.

Item: Specialist blawgs are on the increase. Admittedly only in certain areas, but as well as the international law focussed ‘Conflict of Laws’ and the high quality IP blawgs like Impact and IPKat that have been with us for a while, there is a significant cluster of very good new family law blawgs, like Bloody Relations, Pink Tape and Clarendon Chambers, the latter being a newcomer from a specialist Chambers. John Bolch at Family Lore, who was producing a quality blog all alone in the field for some time, has generously kept a record of the incomers from solicitors, barristers and chambers. These are very different but all excellent blawgs. Employment law has a marvellous exemplar in PJH. The anonymous Free Movement runs an impressive Immigration blawg. Tessa Shepperson has always interesting commentary on landlord and tenant law at landlordlawblog.

True enough, specialist substantive law or practice blawgs are still limited in number and area, but they are spreading and this can only be a good thing.

Item: Blawgs may come and go, posts may be of varying frequency, but the range of current blawgers makes the UK scene both unique and in literally rude health. What other jurisdiction could boast a Criminal QC writing as a Victorian maiden, sharing a blog with a biker solicitor advocate (Ruthieslaw)? Where else would you find a (completely different) Criminal QC taking such care and thought over advising and assisting wannabe barristers (Pupillage and how to get it)? I feel confident in saying that no other country’s legal blogs contain such filth, fury, humour both black and gentle, and striking generosity. The generosity is marked both in the openness to comment and in the open provision of specialist knowledge, often done anonymously so that no personal or professional gain is involved.

Yes, we have a long and probably very gradual way to go in the UK, but I sense that a certain point has been passed. The idea of a law blog is still unusual, but no longer unthinkable. More people read us than we think and more seriously than perhaps we suspect. The idea is taking hold and well on its way to being unexceptional.

If I can have one more than 10 recommendations, then from (just) outside the UK is Cearta.ie. Truly excellent.

And to the many Brit Blawgs not mentioned above, I read and enjoy a shedload of blawgs, but I was trying to make a point, dammit. Don’t go all huffy on me. This disclaimer does not apply to the usual suspects already mentioned by others, whose egos have been thoroughly pandered to - just accept not having to be mentioned as tribute to your ubiquity.

Do it yourself

Published
by
NL
on 2 October 2007
in Housing law and job
. 0 Comments

A strong argument for not pursuing a case as a litigant in person can be found in this case. That said, hats off to the applicant for at least getting a Judicial Review hearing in person. Not least after turning up two hours late.

There is an indication that the applicant was represented at some point in the process, but it appears that she abandoned representation in order to maintain “I didn’t do it”, despite the neighbours’ statements, the Environmental Health Officer’s statement, the Noise Abatement Order, the Magistrates’ Court conviction for breach of that order, the Crown Court conviction on appeal, and the findings of the review panel meetings that the applicant failed to attend. So, she faces a mandatory possession order on her introductory tenancy.

Who says the litigant in person isn’t given a fair chance in the legal system? It looks to me like the civil courts at various levels have bent over backwards to ensure that this LiP had every chance, and in the end even took the excuse of a left-over funding certificate, (which should technically have been discharged long before, and possibly was), to avoid landing costs on the applicant.

Nan Goldin at the Baltic - don’t believe the hype

Published
by
NL
on 1 October 2007
in whatever
. 2 Comments

[Edit 26 October 2007. Update on this story here]

Given my unusual, if not exceptional, melding of experience in law and contemporary art practice, I ought to have jumped at the news that Plod were investigating a photo by Nan Goldin, Klara and Edda Belly Dancing, for a possible offence under the Protection of Children Act 1978. Instead I left it to VM at Ruthieslaw and Head of Legal to have a go.

Why? Partly because I was knackered, as mentioned before, but mostly because the story was a non-story from the get go.

Item one. Plod didn’t raid the Baltic gallery looking for child porn. They were asked for an opinion by the gallery directors, pre-opening. Nothing has been seized.

Item two. This same photo was part of the Saatchi Gallery Kiddie porn scare of 2001. It went on show.

Item Three. Well, how bloody often do we have to have this same story recycled in one way or another. Sally Mann, Tierney Gearon, Robert Mapplethorpe et bleeding cetera. Still, at least this version of the story has got Elton John in it.

The story does have me a bit worried, though. What the hell did the Baltic organisers think they were doing calling the police in for a ‘pre check’ on whether their art was porn or not, after they had damn well curated and collated the show? Did some bean counter or insurer have palpitations? For pity’s sake, it is art (not necessarily good art, but art nonetheless) and you have put it in your show.

At what point do you then think ‘perhaps I’d better see if the police think it is art or a bit porny’? The Library of the University of Central England had so much more bottle faced with a prosecution over a Mapplethorpe book. Baltic administrators, this is your job - to go ‘this is art and fuck you’ when some pillock calls the police in. You don’t get them to pre-approve your exhibitions.

Unless of course it is done for, cough, marketing purposes. The fact that this is more than plausible might say a hell of a lot about the current art world, the media and the rest of society at the same time.