Archive for January, 2008

LSC Judicial Review Mk 2

Published
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NL
on 31/01/2008
in Various (non-housing)
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The Law Society is (just about) to file the second Judicial Review application of the Civil legal aid Unified Contract, this time arguing that, following the Court of Appeal judgment in the first JR, the LSC has to address the illegality of the current fixed fee scheme having been introduced under the unlawful unilateral amendment clause.

The LSC denies that the fees were introduced under the clause but has failed to adequately explain under what other provision they were introduced.

The LSC has already announced it is withdrawing the Unified Contract, apparently now suggesting a new contract in October 2008 (LSC response letter [PDF]), but if the Law Society were to win on this JR, it would really be a devastating end to the whole unified contract project.

Some areas of civil legal aid are worse hit by the fixed fees than others, with family and mental health probably worst off, but the rates do also hit housing and welfare practices pretty badly. One simply cannot do a proper homeless s.202 review on £171, at least not here in the South East.

If the Law Society win, what then? The LSC response suggests a return to the previous fee regime, pro tem. Of course, they also threaten that any payments made under the fixed fee scheme would have to be recovered as ultra vires. We shall see…

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Legal aid, negligence and the clients from hell

Published
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NL
on 31/01/2008
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It’s not a housing case, but Leonard & Leonard v Byrt & Others [2008] EWCA Civ 20 caught my eye as being of practical interest for legal aid practioners and potential amusement for everyone else.

This was an appeal against a summary judgment against the appellants in their claim for negligence against the respondents – a solicitor, Mr Byrt, a barrister, Mr Stafford and an expert. The basis of the negligence claim was that but for the respondents negligence, the appellants would have been able to secure public funding to bring the primary litigation (of which more below) to a successful conclusion.

To get to grips with the deep implausibility of this claim will need some lengthy back story.

In 1988-90, the Leonards decided to sell all their assets and have a yacht built, with the idea of living in the Algarve on charter income. On its maiden voyage in Dec 1990, the yacht’s rudder fell off. The yacht and the Leonards ended up in Lisbon harbour, where the yacht, and the Leonards stayed. In May 1994, a claim was issued against assorted marine surveyors, the builders and designers of the yacht, but not served. The claim was for replacement of the rudder and fitting and damages for loss of use.

The claim was not served until November 1994, the Leonards having received legal aid from September 1994. Mr Byrt began acting at this point. Mr Byrt instructed an expert, initially for paper advice. In February 1996, at a directions hearing, it was suggested that the then claimants might seek to amend the claim to a general deficiency in the yacht’s construction, to allege total loss. The Master at that hearing said if the application to amend was not made immediately, it would be looked on with disfavour later on.

In 1996 Mr Byrt obtained an extension of legal aid to allow for an expert survey of the yacht, in Lisbon, involving x-rays. The expert thought that the welding of the hull showed some faults, was probably adequate,  but he recommended further examination, more x-rays over three days. Mr Byrt sought legal aid funding for this and obtained advice from counsel and the expert’s full report on the existing survey.

The extension to funding was refused in October 1998, Mr Byrt re-applied, saying negotiations had stalled. Meanwhile, an advice from Counsel gave the value of the claim as less than £130,000 on the current claim and warning of a strike-out application. The Legal Aid Board, as it then was, issued notice to show cause why funding should continue and then, despite Mr Byrt’s detailed response, discharged the certificates in May 1999. Mr Byrt appealed and the Certificates were re-instated in June 1999, but only for proposed mediation. On Mr Byrt’s repeated requested, the LAB also authorised instruction of another Counsel, Mr Stafford – another respondent here – as the Leonards were dissatisfied with previous counsel. This would be a continuing theme.

In early December 1999, the Leonards told Mr Byrt that they had met a marine surveyor in Portgual who they wanted instructed, with public funding, to prepare another report. Mr Stafford told Mr Byrt that it would be highly unlikely that the court would grant leave to enter a different expert’s report as evidence. Mr Stafford produced an advice in Dec 1999 valuing the claim at £144K to £162K with a 60% chance and argued for the extension of public funding to trial, not least to recover the costs of £86K at that point.

The Leonards, off their own bat, chased the other surveyor for an opinion, which he gave without having inspected the yacht, saying that the construction of the yacht was inadequate. Mr Byrt sent this to the LAB together with Counsel’s advice, asking for the certificates to be extended to trial. In February 2000, the LAB refused.

In April 2000, the Leonards told Mr Byrt they had lost confidence in the first expert. At their own expense, they got their favoured surveyor to carry out an inspection of the yacht with x-rays. He then produced two reports, the second being re-written because the Leonards, in person, had objected to a passage praising the first expert and his report. This expert said the whole structure was defective and went on to give his estimate of quantum!

In June 2000, the Leonards sent the second of these reports to the LSC as it now was, and to the main Defendant’s solicitors directly, without asking or warning Mr Byrt. They also sent a copy to Mr Stafford. Mr Stafford said that the only way to get this material into evidence would be to ask the first expert to read it and comment on it in a supplementary report. Mr Byrt contacted the first expert to ask, but the expert said he wanted his two year old fee paying first. The Leonards promptly instructed Mr Byrt that not only did they not want the expert instructed further but that Mr Byrt wasn’t to pay his outstanding fee!

The mediation was due to take place in July 2000. Mr Byrt again pressed the LSC by phone to extend funding, to use as a lever in mediation. The LSC refused. Mr Byrt then wrote, setitng out what he understood the LSC’s position to be and requestng confirmation that this was so. This letter formed the sole basis of the Leonards later claim against him for negligence for being a ‘desultory attempt’ to extend funding! The Leonards considered that the sole purpose of this letter was to force them to accept a low settlement at mediation. At mediation, the Defendants offered £80K plus costs – which were about £96K by this point. The Leonards, aware that funding was limited to mediation, rejected this, asking for a minimum of £300K.

Mr Byrt promptly sought advice from previous counsel and Mr Stafford. Both recommended acceptance. The Leonards withdrew instructions from Mr Staffford and after telling Mr Byrt to end negotiations, withdrew instruction from Mr Byrt in late 2000. Funding certificates were discharged in November 2000. They were briefly re-instated in July 2000 limited to exploring an increased settlement offer of £100K, which the Leonards weren’t interested in pursuing, and discharged again in July 2001. Although another firm had a stab at rescuing the situation, even persuading the Leonards to re-instruct the first expert, but it was too late. The Leonard’s claim was struck out in November 2002 for delay, just before the first expert delivered a report stating that the whole structure of the yacht was faulty. Permission to appeal the strike-out was refused. It is worth noting that the 2 year delay in obtaining a submissible further report was due to the Leonards’ refusal to have the expert’s fee paid in 2000.

But the Leonards were not going to be put off. They sprang into action some two and a half years later, in November 2005, when the claim against the respondents was issued, apparently again with public funding, although this vanished  in September 2006. In February 2007, that claim failed with summary judgment against the claimants, and so to the present appeal.

It is a long and messy story. The Court of Appeal dismissed the appeal on the basis that the respondents had acted entirely properly and competently. There was ‘no possible ground for criticism’ of Mr Stafford’s advice. The supposed evidence against the expert was ‘opportunistic’ and gave a brief conversation far too much significance. Mr Byrt had ’sought assidulously’ extensions to funding. he has made ’strenuous efforts’ to secure them. In any case, even if breach of duty had been established, it was very unlikely that the claim amended in the form sought by the Leonards would have succeeded, and the loss of the settlement offer was as a result of the Leonards’ own actions.

In part, this is a tale from another age, when legal aid was available for this kind of claim. But perhaps a cautionary tale, nonetheless.

The possibility that a claim in negligence could be founded on a failure to adequately pursue the extension of public funding remains. It is something to have in mind where, for instance, a client turns down a recommended Part 36 offer. We have no doubt all had Mr & Mrs Leonards as clients – so clear records of advice and reasoning, Counsel’s advice and representations to the LSC should all be in place, not to mention making clear the consequences of refusing a recommended offer.

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Hope over experience

Published
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NL
on 27/01/2008
in Various (non-housing)
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Surprising being undeterred by the experience of the first podcast I did with him, Charon QC has demonstrated a generosity of spirit, if a lack of judgement, in doing another. We talk about training contract experience, smaller firms, and the sisyphean labour of blogging..

You may find it mercifully brief, as I prove the rule that happiness is dull in the telling, while misery always gives good anecdote.

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More in sorrow than in anger

Published
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NL
on 23/01/2008
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or rather, a good slapping.

A sequel to the last post on barristers refusing to sign up for the VHCC contract. A hat tip to Charon QC for the link to the response of the Chairman of the Bar, Tim Dutton to Richard Collins’ letter from the LSC accusing barristers of anti-competitive collusion (the LSC letter can be found here).

Charon describes it as ‘extraordinary’. I think this is understatement. It is an extended duffing up of the hapless LSC executive director, beginning with a number of legal points on which Collins is ’simply incorrect’ and moving on to the reasons why the whole fiasco is the LSC’s fault in both the organisation of the tender process and in the bid level set.

The letter points out that the first time barristers could fully see what they were signing up for was 7 January 2008. Unsurprisingly, they don’t like it. Pausing only to note the slight inconsistency between the LSC’s public claim on 18 January that most barristers were signing up and the letter of 17 January saying that a substantial number wouldn’t, Tim Dutton moves to regret that discussions have to take place in an atmosphere of threats and apparent attempts to put pressure on the very individuals that the LSC itself demanded should make a decision free from coercion.

A relentlessly polite two fingers up to the LSC, then, copied to Jack Straw and Lord Hunt of Legal Aid.  Maybe the LSC’s habit of making threats, either implied or overt, has rebounded.

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Lacking Support

Published
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NL
on 21/01/2008
in Various (non-housing)
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Tempted though I am to get caught up in Jeremy Paxman’s baggy pants revelations (and don’t you just love the image of Paxman raising his best inquisitorial eyebrow as he questions the occupants of his gym and, of course, the House of Commons as to the adequacy of the tautness of their crotch support), it is another set of briefs lacking sufficient support that must take my attention.

This is, of course, the barristers refusing to sign the LSC contract for Very High Cost Cases for criminal matters. Over on Pupillage and how to get it, Simon Myerson managed a very impressive impression of Emile Zola. His J’Accuse represents not only a thorough demolition of the details of the contract but the LSC’s approach to getting barristers to sign. Simon’s dramatic figures in the post – earnings of just £500 per week during a trial – were only very slightly undermined by his back of the envelope calculation that preparation for a trial could involve pay of £27,000 for a six week period (this for a QC, of course) mentioned in his continued denunciation of the LSC on Charon QC’s weekend review  podcast (Simon Myerson’s portion is separately here, thanks Charon).

Simon made absolutely clear that he wasn’t telling or advising anyone else not to sign. Why? because the LSC has effectively threatened barristers. Anyone who might seem to be conspiring, or organising into a cabal whose dark, secret and sinister powers are everywhere at work but nowhere to be seen, is threatened with civil and criminal prosecution under competition law.

Given the utter lack of evidence for the existence of this shadowy cell of refuseniks, another criminal barrister, Hugo Charlton, has called for the prosecution for attempted blackmail of the hapless LSC official involved. Richard Collins, for it is he, wrote to the bar council last Thursday to suggest that ’some intervening event’ must be behind the lack of barristers signing up, given that they had allowed solicitors to put them forward. Richard, I doubt it is a conspiracy, more that the briefs had actually sat down and looked at the detail for the first time. They are, or at least were, busy people, you know.

This utter madness follows hot on the heels of the disastrous introduction of the directing of all requests for solicitors from those held in police stations through the LSC’s own ‘call a rep’ call centre. This resulted in chaos because of ‘unanticipated demand’, said the LSC. Spare me. Surely it was somebody’s job to actually assess demand, including maximum levels? I doubt that it was a particularly exceptional Friday night, somehow. But then that would require a level of competence that we know, from weary experience, is far beyond the LSC. What Price Justice

Add in the ‘if you won’t play by my rules, I’m taking my ball home’ approach to the termination of the unified civil contract and the prospect of further legal action [PDF] by the Law Society on the continued imposition of the fixed fee regime under that contract, and one has to think that the LSC’s chickens are beginning to come home to roost.

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Disability discrimination – the comparator

Published
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NL
on 20/01/2008
in Housing law - All, Possession and secure-tenancy
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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

Following on from the previous post, and the detailed discussions that took place in the comments to that post, I wanted to try to clarify for myself the key element of establishing discrimination, which hopefully may be of use for others. In particular, I want to address who is the comparator against whom the treatment is seen to be less favourable. Bear in mind that this is a housing lawyer interpreting an employment law case, so clarification or endorsement from any passing employment lawyers is welcome.

In Malcolm, the Court of Appeal held it was bound by its own judgment in Clark v TDG Ltd (t/a Novacold) [1999] EWCA Civ 1091.

The judgment in Novacold points out that the definition of discrimination in the DDA 1995 is different to previous acts, in that it does not draw a distinction between direct and indirect discrimination, contains a defence of jusitifcation and, crucially:

it does not replicate the express requirement of the 1975 Act (section 5(3)) and the 1976 Act (section 3(4)) that, when a comparison of the cases of persons of different sex or persons of different racial groups falls to be made, the comparison must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

The crux is the interpretation of DDA 1995  s.5, which then read:

(1) For the purposes of this Part, an employer discriminates against a disabled person if -
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply;

Unless the treatment is justified, of course.

The phrasing of s.5(1)(a) is effectively the same as s.24(1) as addressed in Malcolm. The comparator for establishing less favourable treatment is ‘others to whom that reason does not or would not apply’. The question is the meaning of ‘that reason’.

The Respondents in Novacold argued that ‘that reason’ included the relation to the disability, such that the comparator would be a person who was, say, equally incapable of performing their job, but for a reason that did not relate to disability.

The appellant argued that ‘that reason’ referred specifically to the reason for the treatment (the first three words of s.5(1)(a)), the inclusion of ‘which relates to the…disability’ being simply in order to specify the link which enables the complaint. On this basis, the comparator would be a person who was capable of performing the job.

The Court’s interpretation of the, admittedly ambiguous, wording of the statute takes in the different provisions in the 1975 and the 1976 Acts, and the express requirement of comparison with the treatment of other persons “whose circumstances are the same” stipulated in victimisation cases by section 55(1) (a) of the 1995 Act. This leads it to agree with the latter view.

‘That reason’ refers to the reason for the treatment, not the link to the disability. The proper comparator is someone for whom the reason for the treatment does not apply, not someone who is the same situation but without a link to a disability.

The same phrasing as s.5(1) is found in s.24(1), so that the same interpretation arguably must be followed, as the same phrasing cannot be interpreted in different ways in the same statute, or at least not without causing huge problems.

In the case of Malcolm, this works as follows. The reason for Lewisham’s claim for possession was Mr Malcolm’s illegal sub-let, thereby ending his secure tenancy.  That reason was related to Mr Malcolm’s disability. To establish whether this was less favourable treatment, the proper comparison is with someone to whom the reason for the treatment does not apply – i.e someone who has not illegally sub-let and ended their secure tenancy. These comparators exist. Mr Malcolm was undoubtedly treated less favourably than them, so discrimination is established. Lewisham didn’t argue justification.

There are times when this comparator will not exist, as was the case in Richmond Court v Williams (see previous post). In Richmond, it appears that the ‘reason for the treatment’ was of general application, i.e. that a blanket ban on additions to the common parts meant that there was no occupant/leaseholder of the building to whom ‘that reason’ did not apply, no occupant who wasn’t refused adaptations. There was therefore no possible comparator to whom ‘that reason’ did not apply. As a result, there was no less favourable treatment with the comparator and therefore no discrimination.

Having thought about it, this is not a departure from the Novacold approach, as Justin Bates suggested in the article discussed in my last post, and as I first thought. It is not a departure because the Novacold approach to comparators is deployed, with the result that there is no appropriate comparator to be found. Understood in this way, Richmond is not an alternative to Malcolm, or the Novacold based reasoning, but rather an example of Novacold reasoning in operation.

In this light, and contra Justin’s suggestion, the reasoning in Richmond is not the same as saying that, because Lewisham would treat any tenant who illegally sublet the same way as Mr Malcolm, there is no discrimination. As mentioned above, the illegal sublet is the reason for the treatment, and there are plenty of comparators for whom that reason does not apply – Lewisham tenants who have not illegally sublet.

Novacold might be an employment case, but the interpretation of statute in the analysis of ‘that reason’ is not specifically employment related. If the House of Lords is going to change Malcolm in this aspect, it will be making a major change for absolutely all disability discrimination cases.

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On impotent landlords and disability.

Published
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NL
on 17/01/2008
in Housing law - All and Possession
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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

There are a couple of articles in the latest Journal of Housing Law (Vol 11, issue 1 2008) on Malcolm v London Borough of Lewisham and the effect of the Disability Discrimination Act 1995 on possession orders. I’d say the articles are of varying interest. (My previous posts on Malcolm v Lewisham are here and here)

At the lesser end of the spectrum, Simon Braun contributes a cry of anguish over the supposed impotence of landlords in the face of Malcolm. The article repeats the idees recu that ‘the consequences of the DDA are to give total immunity to the tenant’ and that the link between disability and breach of tenancy ‘need only be very casual’. I’ve said this before and, until proven wrong, I may well say it again, but neither the immunity nor the casualness of the link are the case. Granted, ‘related’ is a lesser hurdle than ‘causal’, but it is not a negligible requirement either. A wheelchair user facing a possession claim for rent arrears? A visually impaired person illegally sub-letting? A person suffering from schizophrenia facing possession for under-occupation? Why would the DDA prevent possession orders in these cases? Further, we have yet to see whether Manchester CC v Romano [2004] EWCA Civ 834 or Malcolm is favoured in possession claims where the Court has discretion.

Breach of DDA as a factor in reasonableness is quite different to simple unlawfulness of a possession order, as Justin Bates points out in the considerably more interesting second article.

Justin Bates of Arden Chambers gives an overview of Manchester CC v Romano and Malcolm with which I largely agree (not least because I had come to some similar conclusions at the time of the judgment in Malcolm) and then turns to the consistency between Romano and Malcolm and the odd effects of Malcolm, for instance that the outcome might have been different had Lewisham proceeded via Notice Seeking Possession for breach of Ground 1 HA 1985, rather than relying on end of secure tenancy by operation of law and Notice to Quit, as this would likely have followed Romano.

Neither Romano nor Malcolm fully addressed justification under the DDA 1995, Justin suggests. S 24(3)(b) provides that discrimination may be justified if the disabled person is ‘incapable of entering into an enforceable agreement’ and arguably that was the case for both Romano and Malcolm as by their own cases they were incapable of being bound by their tenancy agreements. This is quite seductive, but I’m not sure it works.

The full s.24(3)(b) reads

“in any case, the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case;”

The issue is why incapacity to enter an enforceable agreement is the criterea. For an eviction, there is no entry into a contract at issue, as the tenancy agreement was entered into at some time in the past and capacity to enter that contract is not at stake.

It is at least strongly arguable that 24(3)(b) is limited in its reference to s.22(1)(2) and (4) – the sections that deal with disposal of premises to disabled people, i.e. entering an enforceable contract. The requirement is that the treatment be reasonable in that case, for this reason (lack of capacity), which must mean that the entry into a contract is the crux of the treatment. If this is not the case, s 24(3)(b) would mean that it would be justified to discriminate in a whole range of ways against those lacking capacity at this time, because it is reasonable in some undefined way to do so, offering a potential blanket justification for discrimination against the mentally ill (or otherwise incapable). As s 24(3)(a) is quite specific by comparison, this seems unlikely.

In any case, if this were entered as a justification, one would expect the claimant to have complied with CPR Rule 21 on litigation friends.

Justin Bates then turns to establishing discrimination. He cites Richmond Court (Swansea) v Williams [2006] EWCA Civ 1719, which held that, because the freeholder would have refused any tenant permission to install a stair lift regardless of disability, there was no discrimination against the disabled appellant leaseholder in refusing her permission. Justin suggests that the Court overlooked the significance of Richmond. If Richmond had been followed, because an NTQ would have been served by Lewisham on any tenant who parted with possession, there was arguably no discrimination against Mr Malcolm.

I can’t follow this line of argument. I don’t think it is that the Court overlooks the significance of Richmond. It is rather that this is no longer the means of establishing discrimination. I say this despite Richmond post-dating the Court of Appeal judgment in Clark v Novacold Limited that is key here.

It is not simply a matter of comparing the treatment of a disabled person to the treatment of an able bodied person. Indeed the Richmond example shows something of why. It is unlikely that an able bodied person would seek to install a stair lift, such that a blanket refusal is not non-discrimination but rather indirect discrimination.

The judgment in Malcolm deals with this at some length at paras 96-104. At para 100 in Malcolm, Lady Justice Arden adopts the approach of Clark v Novacold Limited in employment law, by which the Court considers itself bound, and states:

It follows from the example of the guide dog that it does not matter that Lewisham would have treated every tenant who sublet in the same way, even if the tenant had no disability.

The example of the guide dog being, in my view, exactly comparable to the approach in Richmond as Justin sets it out. (Granted, I have trouble imagining how the Novacold approach would have worked in Richmond.)

There certainly are many issues left over from Malcolm, not least concerning its compatibility with Romano and which should now be preferred in the case of a secure tenancy. I do wonder though, whether the primary issue is between perceived practicality and a strict interpretation of statute through the lens of established employment case law. For instance, in terms of statute, I think that unlawfulness of a possession order makes much more sense that a fudged incorporation of discrimination into a HA 1985 or 1988 consideration of reasonableness. The latter somehow smuggles in an amendment of the Housing Acts, which cannot be the case.

Malcolm is headed to the Lords and frankly, I don’t think anyone expects the Lords to leave it alone, so there is no doubt more to come. As Romano/Malcolm is key to a case I’m currently running, I’m watching with bated (sorry) breath.

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Thanks Ed

Published
by
NL
on 16/01/2008
in Various (non-housing)
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As Charon has picked up, Colin Samuels and Diane Levin, law bloggers and ’sherpas’ to the ever so anonymous editor of Blawg Review have asked for recognition of the editor’s achievement in building and sustaining the review.

As someone who has been the recipient of the editor’s tender ministrations (and the bountiful assistance of the sherpas), I’m happy to give a hear hear to the praise to the Ed.

Also congratulations to Colin Samuels for getting the Blawg Review of 2007 award. Hey, I voted for him.

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Human Rights for customers

Published
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NL
on 15/01/2008
in Various (non-housing)
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Undertaken at the request of the DCA (as was), the MoJ has published the findings of its ‘Human Rights Insight Project’. The BBC did a story on it, and the publication can be found on the MoJ site here.

There are a number of things to cheer in the report, not least its finding that

“Vulnerable, frequent users are particularly exposed to service delivery that fails to respect their human rights”

But there are some depressing aspects. Unsurprisingly, perhaps, given that the Daily Mail is still considered to be a newspaper:

It is only when it comes to the current application of the Human Rights Act that negative views are in the ascendant, with a net total of 43% of the general public agreeing that too many people (mostly asylum seekers and other ‘foreigners) take advantage of the Human Rights Act.

I’m not sure how one ‘takes advantage’ of the HRA. And let’s be honest, even putting ‘take advantage’ in a survey question, if that is what was done, prejudges the answer – that the HRA can be abused, whether or not one considers that it is being so.

Remarkably, very few people surveyed actually make a connection between human rights and their experience of social services or NHS provision and bewilderingly

Some of the general public rated human rights and the HRA as not at all relevant to their dealings with workers in the NHS and social services, and yet agreed with the majority that being treated with dignity and respect was very important.

Maybe that is less surprising when one is told that

While nearly all of the population say they have heard of the Human Rights Act (89%), it should be borne in mind that one in five (20%) respondents also reported being aware of a fictional law.

Presumably the one about goats.

The report does recommend specific training on human rights for those in public bodies, particularly for decision makers, and further that:

The Ministry of Justice should develop a communications strategy for human rights that builds on, and reinforces, the public’s positive attitudes to human rights and their protection by law in this country, as identified by the Human Rights Insight Project, and addresses the need to correct public misunderstandings, including those arising from reporting of the impact of the Human Rights Act.

But a low grade depression is brought on by the new labour speak in which users of public services are consistently referred to as ‘customers’. A footnote attempts to justify this

The term ‘customer’ is unusual in relation to health and social services, whose customers are more usually referred to as patients or clients. The use of the term in this report opens the way, however, for the drawing of important conclusions with regard to ‘customer care’. The term ‘customer care’ will, it is believed, be widely understood as referring to the everyday, environmental and relational aspects of the staff/client interface in any public service. The difficulty in using the terms ‘patient care’ or ‘client care’ is that they may be understood to encompass some of the higher professional skills as well as the basic day-to-day interactions encompassed within ‘customer care’. ‘Customer care’ is therefore used in this report specifically to denote this important but sub-clinical level of interaction between staff and their patients or clients.

Oh great, the only way of conceiving of ‘everyday, environmental, relational aspects’ of interactions is as customer care. What impoverished hell is this?

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Hey, you asked…

Published
by
NL
on 12/01/2008
in Assured Shorthold tenancy, Disrepair, Housing law - All, Possession, Tolerated trespasser and Unlawful eviction and harassment
. 0 Comments

For some of us internet old timers, who were on usenet before the WWW existed and were hand coding websites in the mid 1990s, it is still a surprise how people treat search engines as something to put a fully fledged question into. January has been a bumper month for searches arriving at this site that involved what, when, who, how, why and where questions that had something to do with housing law, albeit all apparently coming from e.e. cummings.

In a karma appeasing reverse of my occasional sniping at strange search terms, I decided to be helpful. In order to avoid having to return as a cockroach yet again, here are Nearly Legal’s brief answers to your civil litigation and housing questions. Naturally, nothing of what follows should be taken as legal advice and no action should be taken without obtaining full legal advice.

defence and counterclaim struck out what happens now?

Depends on whether you are the claimant or defendant. I’d expect the Claimant to have applied for judgment, sought directions and the case to proceed to trial. The Defendant is stuffed, except on the issue of quantum.

how long before a possession order is unenforceable

After 6 years the claimant has to get the court’s permission to enforce, but assuming that the conditions still continue (e.g. rent arrears and costs not paid off), the order is potentially enforceable for another 6 years.

can landlord evict without a warrant

Depends – but if it is a tenancy and falls under the protection from eviction act (as most do), no.

should homelessness appeals move from county court to tribunal

Ohh, an abstract point of principal type question. My short answer is that, as issues of public law are often engaged, no.

how many months notice do i need to be evicted

The usual answer is the minimum notice in tenancy agreement or statutory minimum notice if longer – these vary depending on the current status of the tenancy. Then, before eviction, there is the issue of possession proceedings, plus hearing and possession order, plus expiry of any time limit in the possession order, plus time taken for landlord to apply for warrant of possession, plus time for availability of bailiffs for settting date of eviction in Notice of Eviction, which depends on how busy the court is. Depending, I’d say roughly 4-6 months, could be more, could be less. Of course, if there is already a possession order, it is just down to how busy the court/bailiffs are – maybe a few weeks or less.

what happens when a tolerated trespasser clears arrears and court cost

Nothing. That is the problem. No new tenancy and no ability to apply to revive the tenancy. Changes may be afoot. Watch this space.

how many times has the section 11 landlord and tenant act of 1985 been in the uk?

Once. But it has been used in claims a lot. I’m running something like 25 cases at present.

are contingency fees illegal?

Yes. Conditional fee Agreements (AKA No win No fee) are not contingency fees and are legal.

what differences does it make if my ex partner give up tenancy to my property i own

Eh?

can i evict an illegal subtenant

Assuming that this is a private tenancy, if the tenancy has been ended, the subtenant has no continued right of occupation and a possession claim against a trespasser can be brought. If the tenancy hasn’t been ended (by Notice to Quit or Possession order), but the tenancy is a assured periodic, the landlord can bring possession proceedings against the illegal subtenant under Ground 12 Breach of tenancy. But get advice, pronto. If this isn’t a private tenancy, then any RSL or Council housing officer should know about this, really.

what is the impact of the disability discrimination act 1995 on possession claims brought under the accelerated procedure?

My view, in the absence of significant case law, is that Malcolm applies. See this post.

can you appeal a house possession claim

Yes, but for heaven’s sake get advice. You can’t just get the claim re-heard.

case law on joint to sole tenancies

The only legal mechanisms are i) on the death of one joint tenant for assured shorthold (private), secure (Council) tenancies and Assured (Housing Association) tenancies, (which – if it happened post 1980 – counts as a succession for secure tenants) or ii), if it is a relationship breakdown or children are involved, the Court may in some circumstances order the re-assignment of the tenancy under the Family Law Act 1996, Children Act 1989 or as part of a divorce – see this post. For cases try Gay v Sheeran & Anor [1999] EWCA Civ 1621 or Newlon Housing Trust v. Alsulaimen and Another [1998] UKHL 35; [1999]. Local Authorities and some Housing Associations have relationship breakdown policies, where a new sole tenancy may be created, but basically, this issue is very, very messy.

how to get an ex partner s name off of a tenancy

If they are a joint tenant, see above. if not, and you are the sole tenant, it doesn’t matter at all, the landlord should remove their name.

typical billable hours to defend landlord against mold

Ah, mold is a tough claimant. But assuming this is defending a disrepair claim, an indeterminate piece of string comes to mind. How far does the case go? Settlement? Trial? Disclosure issues? Interim applications? And so on and so forth. I’d expect multiples of tens of hours to be quite possible.

will i be evicted if my rent arrears have gone back to court

If you have breached the terms of a suspended or postponed possession order for rent arrears, you could well be. Get advice now.

what does only or principal home mean?

Basically, where you live all or most of the time. This doesn’t mean that you can’t be living elsewhere for some periods of time, but there must be clear indications of the intention to return. Occupation by a spouse will count as occupation by the tenant.

the preaction protocal has failed to get a reply

Then surely it is time to consider issuing the claim, assuming you have the evidence. Otherwise – pre-action disclosure application?

how to break a shorthold assured joint tenancy

As landlord or tenant? Has there been a significant breach of tenancy agreement by the other party? Or misrepresentation prior to signing the agreement? That may or may not help, depending. If not, you are probably stuck – this is a contract after all.

the appellants had been defendants to an application for possession of their flat. there had been several court hearings and opportunities made for them to present their counterclaim as regards the state of the financial account and in order to make a counterclaim themselves for damages.

Don’t stop there, I was just getting interested.

And lastly,

lpc is it worth it for mature

I’d have to say yes, for me it certainly was. but it isn’t going to be easy at all to get a traineeship. Do a lot of research and thinking.

There, that should be enough karmic balance for at least a few more weeks of sneering at small children and general misanthropy.

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