Archive for December, 2007

To end the year – a meme

Published
by
NL
on 31/12/2007
in Various (non-housing)
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Thanks to Lex Scholasticus at Reductio ad Absurdum, I have been tagged with another blog meme thing. In a surprising bout of pre-new year generosity, I will both respond and entirely fail to tag anyone else.

I am called upon to list 8 things I want to happen in 2008. Only 8? I’ll try to keep them vaguely legally related, apart from the first, which is of pressing personal need, and the last, which is too much to hope for.

1. Cure the damn common cold. OK, I understand the nature of fast mutating viruses and why this is difficult. So couldn’t someone just come up with a symptom suppressor that actually worked?

2. Obviously, I want to qualify and get a post, preferably with a decent legal aid firm. Which leads on to…

3. The LSC and the MoJ finally get a clue and come up with workable proposals for legal aid reform.

4. The government actually pays attention to the Law Commission’s proposals on reforming housing law.

5. The great wig issue. Everybody wears them, nobody wears them, some people wear them, but not the judges, except for some judges who do. I’m past caring. Settle the horsehair one way or another – either gently on the the head or back in the tin.

6.  Somebody fixes the Administrative Court. When the judges are reaching for Magna Carta to express their frustration, there is a teeny problem. In fact, the County Courts could do with some help too.

7.  David Cameron shuts up about repealing the Human Rights Act. In fact David Cameron shuts up.

8.  As well as the usual: world peace, a sudden outbreak of tolerance and understanding, that sort of thing, I rather want a new Macbook and/or iMac, thanks.

Happy new year to all. Now where is that Lemsip…

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Blawg Review Nominations

Published
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NL
on 30/12/2007
in Various (non-housing)
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This year’s Blawg Review awards are apparently to be awarded to one Blawg on the basis of nominations from solely those who have hosted or are shortly to host a Blawg Review.

Having closely followed the instructions of the anonymous Ed of Blawg Review, Nearly Legal’s nominations are based on marks for elegance and commitment, with bonus points for being based some distance to the east of most of the Blawg Reviewers.

And the nominations are, in no particular order:

Corporate Law UK for Review #116

Public Defender Stuff for Review #91

Lex Ferenda for Review #128

and Infamy or Praise for Review #137

To date, nobody has nominated Review #115. I blame declining standards in education.

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RCJ evicts thousands…

Published
by
NL
on 30/12/2007
in Various (non-housing)
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From The Times, 12 November 1866

The extensive and complicated network of lanes, courts and alleys covering the area bounded east and west by Bell Yard and Clement’s Inn, north by Carey Street, and south by the Strand and Fleet Street, lately containing a population more numerous than that of many Parliamentary boroughs, is being fast deserted. A few of the winding thoroughfares are not yet disturbed, but several of old and worse than equivocal notoriety – and in which, a few weeks ago, passage was rendered somewhat difficult by the human swarms whose modes of existence are among the unsolved social mysteries – are now almost uninhabited, only a house or two remaining, in exceptional cases, where a brief extension of term has been granted. Massive padlocks guard every door. The glass on the first and second floors has been smashed in by unforbidden missiles discharged as parting salutes by the more juvenile emigrants, and the grimy, stooping, unwholesome buildings wear an aspect of weird gloom, contrasting strangely with their recent animation, when every doorway and window arrested passing attention with grotesque and sordid samples of human nature. The ground taken by the authorities intrusted with the arrangements for the new ‘Palace of Justice’, or, in plain English, the new law courts and offices, includes nearly thirty lanes and passages, the names of some of which will be familiar to all who have made acquaintance with the topography of London. Among them is Clement’s Lane, the south part of which, nearly up to King’s College Hospital, comes down. Here still stand some old houses, the very peculiar, perhaps unique, character of whose construction is worthy of a visit. One of them is remarkable as the scene of one of those Royal intrigues and misdeeds which figure in the Mémoires pour Servir of Charles II and his Court. Then there is Bell Yard, the seat of newsvendors, law booksellers and printers… Next come Middle and Upper Serles Place, with Lower Serles Place, formerly Shire Lane; Ship Yard, mentioned more than once in the chronicles of seventeenth-century roysterings; Crown Court, a dilapidated passage… with its noisy and dangerous neighbour, Newcastle Court.

The main frontages to come down are, northwardly, nearly the whole of the south side of Carey Street, and, southwardly, the eastern and western extremities respectively, the north side of the Strand and Fleet Street, crossing Temple Bar. The pulling down of the south frontage will probably be deferred until some way has been made in the removal of the passages to the rear. By the displacement of so many hundreds of poor families, the unhealthy courts about Drury Lane, Bedfordbury, the Seven Dials and other localities, already reeking and noisome with excess of numbers, have become more overcrowded than ever, The rents of the most miserable rooms have materially risen, and another entanglement is added to the difficult problem, ‘How and where are the poor to find suitable dwellings?’

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Omar update

Published
by
NL
on 21/12/2007
in Homeless and Housing law - All
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Craig Keenan from Community Law Partnership has added another comment to my original post on Omar -v- Birmingham CC to the effect that funding may be forthcoming for a House of Lords appeal. Also the key issue, which is whether Councils can rely on s.193(5) – suitability – rather than s.193(7) – suitability and reasonable to accept – when discharging duty on refusal of an offer of accommodation, may well come up in other cases headed to the Court of Appeal.

Hopefully, a resolution will be achieved soon, as Omar -v- Birmingham was not at all clear in its suggestions.

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Christmas rush

Published
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NL
on 21/12/2007
in Homeless and Housing law - All
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It seems I wasn’t the only one frantically getting cases progressed before the holiday break. The Court of Appeal has been churning out judgments at an extraordinary rate.

Amongst them one housing law judgment…

Green & Anor v London Borough of Croydon [2007] EWCA Civ 1367. This was an appeal on a homeless application. Briefly, there had been a somewhat iffy possession order, made where the actual rent due and owing was not clear at all. The Local Authority had even advised the appellants on the iffyness of the claim. However, a ground 8 possession order was made and the Council then returned an intentionally homeless s.184 decision on the subsequent homeless application.

The basis of the appeal was that the Council’s inquiries had not gone far enough, or at all, into whether the possession order was soundly based or should have been made at all.

The Court of Appeal held that ’such inquiries as are neccessary’ in the terms of s.184, in circumstances such as this where the County Court had made a decision as to what the rent was on the basis of mixed and uncertain evidence, need not take place, although the situation may be different where the County Court decision was ‘clearly’ wrong. This was not a boundary testing case. Appeal dismissed.

Bad luck to Flack & Co on this one.

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amicitia reverto (sic)

Published
by
NL
on 18/12/2007
in Various (non-housing)
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So, Belle de Jure and Lawyer-2-be, although apparently tired of being respectively scandalously homophonic and hyphenated, are back. I somehow thought it was only a matter of time before one or both broke cover.

Now conjoined, although thankfully not declined, and newly latinate, their fresh venture, Reductio ad Absurdum, should be a blog for lawyers with a hinterland, always assuming there be such a thing.

For myself, I have no Latin, or indeed Classical Greek, the lack of which makes me neither proud nor ashamed. I could once, however, play the oboe and explain hermeneutics. Preferably not at the same time.

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Of orthopaedic footwear and possession orders

Published
by
NL
on 16/12/2007
in ASB, FLW case note, Homeless, Housing law - All and Possession
. 0 Comments

Not a particularly significant case, but not one you see every day either. Nuisance by adverts for wigs, orthopaedic footwear, and dating agencies.

Accent Peerless Ltd v Kingsdon & Anor [2007] EWCA Civ 1314 was an appeal of an outright possession order on an assured tenancy. The possession order was made on the basis of Ground 14 Nuisance. The tenants, mother and daughter, both suffered from mental health disorders:

The main symptoms of their disorder were a hypersensitivity to noise, a propensity to exaggerate the effect of noise and other disturbances, agoraphobic tendencies, a tendency to misunderstand and chronic complaining.

So when their new neighbours undertook some apparently fairly extensive but reasonably conducted DIY work, the Kingsdons took action. From para 5:

i) Between November 2001 and September 2005 they made 36 complaints to the Environmental Health Department. There were also two complaints to the local authority ombudsman.

ii) They made 90 complaints to the Housing Association between September and November 2001. These complaints seem to have been communicated to the Dixons.

iii) They made a number of complaints to the police, prompting several visits by the police to the Dixons. The police seem to have concluded that the Dixons were taking all reasonable steps to be considerate neighbours. In the course of these complaints, the defendants made allegations that Mrs Dixon had been in Brookwood Mental Hospital and that they had been evicted from a previous property for dangerous DIY activities and noise harassment. These allegations were false. Over a period of 12 to 18 months the beat officer for the area, who at one point issued a warning under the Harassment Act, received almost daily faxes from the defendants, though they had dropped off dramatically a short while before the trial.

iv) The defendants procured the sending of unwanted mail shots and other advertising material by apparently filling in coupons with the victim’s address. The material which thereby arrived on the Dixons’ doormat included advertising for erotic material, an introductory agency, a wigmakers, cosmetic surgery and orthopaedic footwear. The Dixons found this upsetting and depressive.

v) What was described as the “last straw” happened in 2005. One of the defendants made an anonymous telephone call to Mr Dixon’s employers saying that he was not off ill because they had seen him working in his garden. At the time Mr Dixon was indeed off work and working in the garden, but it was pursuant to leave which had been agreed with his employer.

vi) One of the defendants wrote to the local MP, in Mrs Dixon’s name, about some European food supplement.

The Circuit Judge found that this constituted nuisance for the purposes of Ground 14 and that it was  reasonable to make an outright order in view of the likelihood of the nuisance continuing.

The appeal was dismissed on the basis that it was proportionate to make an outright order and the Judge was within his discretion, having heard and considered evidence on a supposed abatement of incidents. The Court of Appeal found that the Judge’s decision

falls into the category of decisions with which this court will not interfere absent a manifest error of principle, a failure to take a relevant consideration into account or the taking into account of an irrelevant consideration.

Given the evidence of the appellants’ mental health issues, one wonders how strongly a Disability Discrimination defence was run – reason for eviction being related to the disability. However, the County Court Judgment says that in making the order, the Judge was satisfied that

these defendants will not be discriminated against under the Disability Discrimination Act.

I would imagine that there could have been a strong counter of justification to a DDA argument. But none of this is raised in the appeal.

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World famous round these parts

Published
by
NL
on 14/12/2007
in Various (non-housing)
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Nearly Legal has a comment piece in the Solicitors Journal. (No subscription needed for the next week). Fame, yes, fame at last. In an anonymous sort of way.

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Human Rights and Possession Claims – looking for the exception

Published
by
NL
on 13/12/2007
in FLW case note, Housing law - All and Possession
. 0 Comments

The latest case to test the Connors, Kay and Doherty formulations on human rights defences to possession cases (see here for previous post, including the comments) has just had its Court of Appeal judgment released. I would assume that Smith (On Behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 1318 is a way-station on the path to the House of Lords. This is also something of a test case for the situation on gypsy site licence possessions after the Housing Act 2004 amendments, which were introduced as a result of the ECtHR judgment in Connors.

So, where are we now?

First, the key human rights point – the possibility of reliance on Art 8 in a defence – is shelved. Jan Luba QC for the appellant perforce recognises that the CoA held in Doherty that Kay v Lambeth meant that such that an Art 8 defence is only possible where there are no statutory protections available against a simple assertion of title. The issue is raised, here as an argument that the first order Judge was wrong to rule out an Art 8 defence where possession was based on common law, not statute, but the CoA declines to consider it and effectively leaves it up to the House of Lords.

Second, the key issue, at this stage, is that the first order Judge ruled out a public law defence, without hearing any evidence.

Third, other grounds of appeal are a) that this case is factually distinguishable from Connors in terms of the appellant’s situation, and b) that is is arguable that the amendment to the Caravan Sites Act 1968 by the Housing Act 2004 does not cure the incompatibility with Art 8 of the Convention, found in Connors.

The basis of the Connors decision
The Court of Appeal is satisfied that the lack of procedural safeguard was the predominant issue in the ECtHR decision in Connors.

The public law defence
This is discussed solely in terms that a decision to bring a possession claim by a public authority is, in the circumstances, something no reasonable person could consider justifiable, following Wandsworth BC v Winder [1985] AC 461.

The CoA adopts Lord Brown’s view in Kay (at paras 208-211) that to bring a public law defence is to acknowledge that the claimant authority is entitled to possession under domestic property law and is therefore an argument that the authority could not reasonably invoke that right. This is a more stringent test than that usually applied when the court considers the justifiability (or reasonableness) of a possession order. It is only in an exceptional case. Lord Brown suggests, that he public law defence will succeed. Connors may have been such a case.

The CoA considers that the 2004 amendment has changed the landscape, affording the court the opportunity to consider the justification of the case for possession at hearing. This makes it even less likely that a public law defence will succeed and in the present case, the first order Judge was right to hold that it was not seriously arguable.

The factual distinction
The CoA points out that this is of no relevance to the court. Nevertheless, while agreeing that the first order Judge was wrong to consider the varying length of periods in occupation as a basis for distinguishing Connors, the Court is not persuaded that it would necessary to decide of the facts of this case and Connors are distinguishable for any future appeal to the House of Lords, but leaves it to the Lords to decide.

The 2004 Amendment
The argument by the appellant is that, firstly, despite the amendment, there is no judicial control of the termination of the right to occupy. Secondly, no special consideration is given to the gypsy lifestyle, as required by Connors – the burden is on the defendant to show why enforcement shouldn’t happen. Thirdly, the court is required to have regard to ‘whether the occupier has failed to make reasonable efforts to obtain elesewhere other suitable accommodation’, which assumes that the occupant may be evicted regardless of substantive grounds. Fourthly, enforcement can only be suspended for 12 months, requiring re-application for further stay. Lastly, the amendment does not satisfy the non-discriminatory requirement in Connors.

The Court of Appeal holds that the margin of appreciation in Connors was narrowed by the procedural safeguard issue. To the appellant’s arrgument the Court replies that firstly, the Art 8 issue is eviction, not possession and the procedural safeguard satisfies this. The Government intends to remove the difference between local authority gypsy sites and private caravan sites in the Mobile Homes Act 1983, to further narrow any discriminatory distinction. The second point falls under the court’s obligation to exercise its discretion. The third point would in any case fall under Art 8. The fourth point has weight – and is left at that.

In regard to the non-discrimination point, the ECtHR was primarily concerned with procedural safeguards, but even so, the discrimination has been lessened by the amendment. Removing the discrimination will require further amendment of the 1983 Act. However, mitigating but failing to completely remove the discrimination falls within the margin of appreciation. The likely forthcoming amendment to the 1983 Act is mentioned as the reason why the Appellant did not seek a declaration of incompatibility in regard to the amendment.

And that is pretty much it. So it appears that not only a human rights defence but a public law defence is viewed as being of vanishing exceptionality. And, it is suggested, the 2004 amendment to the 1968 Act has settled any remaining Art 8 objections to the gypsy site licence issue.

The appeal was brought by the Community Law Partnership in Birmingham. Haven’t seen you around this blog for a while, CLP people. There is no mention of leave to appeal in the Judgment. Is this one House of Lords bound?

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Proprietary Estoppel yet again

Published
by
NL
on 11/12/2007
in FLW case note, Housing law - All and Trusts and Estoppel
. 0 Comments

Blimey, who declared this Estoppel month? The latest is Powell & Anor v Benney [2007] EWCA Civ 1283. Although the case itself is not that interesting, the judgment is worth a look as it gives a clear overview of the Court of Appeal’s current thinking in this area. The only judgment is by Sir Peter Gibson.

Some points:

The distinction between a ‘bargain’ form of estoppel in which relief should vindicate the Claimant’s expectations and a ‘non-bargain’ form in which relief is open to a wider judicial discretion including proportionality with detriment, as proposed by Robert Walker LJ in Jennings v Rice, is followed in this case. However, interest is expressed in a critique of this distinction by Simon Gardner in ‘The remedial discretion in proprietary estoppel – again” in (2006) 122 LQR 492.

The bargain form is potentially close to constructive trust in that an effectively contractual arrangement has been reached which would be effective save for s 2 of the Law of Property (Miscellaneous Provisions) Act 1989, such that fulfilling the expectation is akin to establishing the beneficial ownership. Akin, but not the same. The Court adopts Lord Justice Walker’s comment in Stack v Dowden that:

I have to say that I am now rather less enthusiastic about the notion that proprietary estoppel and ‘common [intention]‘ constructive trusts can or should be completely assimilated. Proprietary estoppel typically consists of asserting an equitable claim against the conscience of the ‘true’ owner. The claim is a ‘mere equity’. It is to be satisfied by the minimum award necessary to do justice (Crabb v Arun District Council [1976] Ch 179, 198), which may sometimes lead to no more than a monetary award. A ‘common intention’ constructive trust, by contrast, is identifying the true beneficial owner or owners, and the size of their beneficial interests.

The Court is firm that where the claim is against the conscience of the ‘true’ owner, it is satisfied by the minimum award necessary to do justice. Where the elements of a common intention constructive trust are not made out, it cannot simply be used or pleaded interchangeably with proprietary estoppel, as apparently happened in this case.

Gardner argues that a wider judicial discretion should be available in all proprietary estoppel cases. On the case as pleaded here, the Court couldn’t pursue this further, but I think the indication that this is the direction in which it is leaning is clear, particularly in the distinction drawn against constructive trust.

What is more clearly indicated is that a detrimental reliance on a promise must be clearly established. Any benefit also obtained can and should be considered against the detriment (at least in a non-bargain case). The scale of the detriment is key and must be carefully pleaded.

Anyone looking to claim proprietary estoppel should be thinking very carefully about both pleadings and evidence, I’d say.

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