Archive for November, 2007

Constructive Trust and Proprietary Estoppel again

Published
by
Nearly Legal
on 29 November 2007
in Housing law
. 13 Comments

In James v Thomas [2007] EWCA Civ 1212, the Court of Appeal fine-tuned some points on constructive trust and proprietary estoppel, with reference to shares in property. To note from Sir John Chadwick’s main judgment:

A constructive trust can arise some years after the purchase of the property by the sole title holder alone. There is no requirement for the claimed beneficial interest to arise at the time of purchase. However, in this situation, without an express post-acquisition agreement, the Court will be slow to to infer an agreement from conduct alone.

Contribution to mortgage capital repayment per se is not necessarily enough to infer agreement ot a beneficial interest.

It is not necessary for a specified share or part of the property to be mentioned in an assertion that a beneficial interest in the property would be given by the defendant to the claimant. It is sufficient that the property at issue is identifiable, pace Lissimore v Downing [2003] 2 FLR 308.

The judgment is also worth reading when considering what kinds of acts and statements, in what kind of context, will not give rise to a constructive trust or an estoppel.

Badness in courts, of courts and of law lecturers

Published
by
Nearly Legal
on 29 November 2007
in Legal Aid and whatever
. 0 Comments

A quick outline of a busy news day…

What Price JusticeThe Court of Appeal says that (some) provisions of the Legal Services Commission’s Unified Contract are unlawful, specifically the most sweeping of the unilateral amendment clauses. The judgment is pretty devastating, finding for the Law Society on all points of its appeal of the earlier Judicial Review finding and against the LSC on their appeal. As a sample:

The power to amend (in this contract) is better characterised as a power to rewrite the contract.

Permission for the LSC to appeal refused, costs against the LSC. The judgment is here [pdf] and the Law Society’s comment here. What this will mean in practice, we will have to see…

Leeds Magistrates Court is to be investigated for failure to execute bench warrants when Defendants turned up on other harges and other matters. BBC video here.

And then, managing to offend the laws of God, man and academia in one fell swoop, we have lay preacher, law lecturer and convicted fraudster Malcolm Edwards-Saye, the self-styled Lord Houghton. He was involved in a £51 million VAT carousel fraud and was also convicted of stealing £18,000 from PI claimants via Claims Direct. Worth noting that disclosure failures on the part of the Revenue and Customs Prosecution Office meant that another 8 defendants walked on the carousel fraud. Top work.

Extending security by tenancy agreement?

Published
by
Nearly Legal
on 22 November 2007
in Housing law
. 1 Comment

[Edit, time slightly later on. In the comments to her post Tessa suggests that the case discussed below was not a judgment at all but merely adjourned from the undefended list for a hearing of the issues. So none of what follows is of much significance.]

A very interesting post over on Landlord Law by Tessa Shepperson.

Apparently a Deputy District Judge of her acquaintance, faced with a Notice to Quit served on a (ex) secure tenant who had moved out of the rented property, discovered that the Council tenancy agreement specified that the

tenant could only be evicted after service of a notice of possession as provided under the provisions of the Housing Act 1985

As no NSP had been served, the DDJ concluded he could not make a possession order, there being no reason why the landlord could not enlarge security of tenure under the tenancy agreement in a binding manner, following the model of Welsh -v- Greenwich London Borough Council on extending repairing liability.

No doubt the ‘tenant’ was suitably, if temporarily, relieved by this judgment, but I have my doubts.

Firstly I have to presume that the landlord had pleaded the end of secure tenancy by way of s.81 Housing Act 1985 (the only and principal home condition). That ends the secure tenancy, regards of anything in the tenancy agreement. No tenancy agreement can trump the statutory provisions.

We aren’t given the precise wording of the clause in the tenancy agreement, but any provision in the tenancy agreement concerning notice that stated it was ‘as provided under the provisions of the HA 1985′ is surely strongly arguable as restricted to a tenancy under the Act. If so, it is not applicable to any tenancy outside of the Act, as was the non-secure tenancy that this Defendant had left.

While it may well be possible for a landlord to specify that a tenancy contains notice provisions above and beyond those specified in statute, if the notice provisions are expressly described as ‘as provided’ in statute, it is hard to see how that can be considered as extending the security over the statutory provision.

I would guess that this term was contained in the secure tenancy agreement, which had, I would imagine, ended by operation of statute. If so, surely the secure tenancy agreement no longer governed the tenancy at the time of the hearing and its terms were by-the-by. Can a term of a tenancy agreement survive the end of that agreement?

I would have thought the DDJ’s judgment thoroughly appealable, unless the Council just wants to take the line of least resistance and serve an NSP (but on what grounds..? Would they be restricted to those of the HA 1985?).

I don’t think the equation to repairing liability goes very far. S.11 Landlord and Tenant Act 1985 specifies the repairing liabilities that a landlord cannot avoid by terms of the tenancy agreement, but it in no way sets limits on extension of that liability. However, no-one can create a secure tenancy outside of the provisions of HA 1985, whatever extra rights might be added to that tenancy on top.

I may well have gone off on the wrong track here - it has been a long, intense, but successful day for me, but the adrenaline has now worn off, and with it most higher brain functions - but this judgment looks rather messy to me, and quite possibly unsustainable. If the tenant was represented, does the solicitor want to write it up? Perhaps there is more than I’ve grasped.

S.85 Application Randomness

Published
by
Nearly Legal
on 22 November 2007
in Housing law
. 0 Comments

We’ve been doing quite a few s.85 revival of tenancy applications recently, mostly successful. Where arrears have been paid off, our usual line is that no specific payments have been made for court costs and that court costs have not been added to the arrears. As the costs are outstanding, the Suspended Possession order has not been satisfied and remains both enforceable and variable under s.85. Usually this has worked.

But now, one of our local District Judges apparently has taken it into their head that if the rent account went into credit to a level higher than the court costs, then the costs are deemed paid. The DJ, so I have heard, found authority in L&Q v Ansell.

This is annoying. Not only because in my view there is no authority for this proposition in Ansell at the Court of Appeal, as I have previously discussed, but because, practically, we now are left with a lottery of which DJ hears a similar future application. Most of them have been happy to accept our point, but what if we get this DJ? Damn.

Also annoying is that we aren’t in a funding position on this case to take it to appeal. The Court of Appeal pretty much invited an appeal on this issue in Ansell. Somebody please take them up on it. If we get a suitably funded application to revive turned down by the same DJ, we will probably be looking to do so, but this needs sorting out as soon as possible.

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

Legal Aid. Could be clearer. Will be smaller.

Published
by
Nearly Legal
on 20 November 2007
in Legal Aid and job
. 0 Comments

The judgment in Minister for Legal Aid v Main, R (on the application of) [2007] EWCA Civ 1147 might be of limited general applicability, concerning as it does the provision of ’special case’ legal aid funding for inquests, but one passage in the judgment caught my eye:

The relevant statutory provisions and the non-statutory material are somewhat complex. We were shown extracts from a “Legal Services Commission Manual”, which purports to explain the applicable directions and guidance. However, it confuses matters by mixing material from various sources without precise attribution. We were told that it has now been replaced by a clearer document. Meanwhile, we are grateful to Miss Nathalie Lieven QC for providing us with a guide to the guide.

Oh, we’ve all been there, my Lords, unfortunately usually without a helpful QC.

Meanwhile, buried in a small Observer article on Sunday, was the news that the Ministry of Justice is facing a 3% ‘efficiency saving’ (budget cut) across the board.

That includes the prison service - losing £180 million, the Courts - losing £102 million, Tribunal service - losing £39 million,  and, of course, the legal aid fund - losing £193 million.

Does this £193 million come from the fund alone? From the fund and the LSC’s operating costs? Just the LSC’s costs? We need to be told. If it is from the fund alone, this is a nonsense.

Add to that soon-to-be merged courts with reduced admin staff (as if the courts weren’t already in a slow collapse. For instance, has anybody had a non-standard Order drawn correctly recently?), and reduced funding for a prison service stretched beyond capacity. It looks like the Lord Chief Justice was quite right to be worried about budget pressures in the new MoJ hitting the courts, but it is no surprise that it is the Prison Service apparently leaking the document and the figures.

Words, or at least ones that the Times wouldn’t put asterisks in, fail me.

Oh what a tangled web…

Published
by
Nearly Legal
on 20 November 2007
in law blogs and blogging, tech and whatever
. 0 Comments

[Edit. This was originally posted on Friday evening 16/11/07. Not that I'm getting all conspiratorial but it disappeared in the great site downtime and server change... There was also originally an image, which has vanished from the server and apparently was deleted (by me) on my home machine. So, albeit imageless, I defy the internet gods and post this again]

While Musharraf tries to overcome the rule of law by imprisoning all the lawyers and the Lord Chief Justice pleads, probably in vain, for a genuine discussion of prison policy, Nearly Legal’s scarce free moments today have been largely consumed by the ramifications of the posturing of a small ex-pop star.

NB: What follows is based on a cursory acquaintance with copyright law, here and abroad. All corrections and clarifications from proper IP lawyers and international private law lawyers (looking at you, Martin) are welcomed.

The artist formerly known as Prince (hereinafter ‘ex-Prince’) won plaudits, even from Geeklawyer, for giving away his last album with a certain ‘newspaper’. From hero to zero, he then promptly employed the services of ‘Websheriff’, a copyright protection firm in the US, to get fan sites to take down copyright images. Not, in itself, a good move - threatening to sue your most ardent fans.

A largely British online community of mickey takers, b3ta (Not safe for work), promptly decided that Prince was the target of its weekly parodic photoshoparama.

Websheriff turned up and issued both b3ta and the individual posters with DCMA take down notices. After a few days b3ta pulled the forum pages, replacing them with, to anyone who knows the site, a very obviously ‘dictated by the other side’s lawyers’ statement.

Now bear with me, because this is where it gets complicated. The owners of b3ta, and most of the posters, are British and live in the UK. To that extent, they are not subject to US law. However i) the English courts will likely enforce a civil judgment of a US court, meaning that a prosecution in the US is a problem; and ii) b3ta’s servers are based in the US, meaning that the hosts are vulnerable to the after effects of a DCMA takedown notice.

Not complicated enough? Try this. English copyright law, as it stands, does not admit a defence of parody or satire under fair use. Under English law, then, the utterly parodic use of copyright imagery of ex-Prince may well fall foul of copyright law. But Websheriff used US law, specifically the DCMA. In US law, there is an established and well tested defence of parodic or satiric use. There is also a potential counter claim for a false take down request under the DCMA. (There is apparently some question over Websheriff’s legal ability to issue DCMA takedown notices - more on this to come if I can find anything).

So, b3ta’s position was probably stronger under US law than English law, but, as a very popular but not hugely wealthy site, it is not surprising that they declined to defend a US based case. They were also no doubt under considerable pressure from the US hosting company.

Of course, as a PR move, taking on a site like b3ta is a catastrophically stupid thing to do. That forum thread might have gone, but the ramifications will spread out far and wide across the interweb. Maybe involving googlebombs or mass infringement, the result will inevitably be the destruction of the ex-Prince’s reputation. It is likely that the ex-Prince will find himself facing an exponentially increasing bill from Websheriff for the service of destroying his public image.