Whatever | Nearly Legal

Tag Archive for 'whatever'

Just passing

Published

on 8 July 2008

. 6 Comments

I have been and remain extremely busy, but thankfully there has been nothing of significance to post about. I’m toying with a summary of the fascinating and now very, very lengthy comment thread on the Malcolm post, but that too will have to wait.

While I am here, may I just say that probably the last place I anticipated jaw-dropping procedural topsy-turvydom in a hearing was the Leasehold Valuation Tribunal. A long story that I can’t actually tell here, but damn, that was like Alice in tribunal-land. Or I am being naive?

Falling property and other news

Published

on 20 April 2008

in Legal Aid

. 0 Comments

This week’s award for literalism goes to William Lyttle. Mr Lyttle, apparently not realising that ‘fall’ and ‘collapse’ are usually metaphors when applied to property, spent 40 years excavating a labyrinth of tunnels under his Hackney property. Mr Lyttle, the Daedalus of east London, was this week ordered to pay Hackney Council £300,000 for the cost of making the property safe, after they evicted him in 2006. Mr Lyttle’s excavations had previously caused a 15 foot abyss to appear in the pavement outside the house. Mr Lyttle remains subject to an injunction to keep him from his subterranean labours.

The Shelter strike is back on, sadly. Shelter staff are due to strike on Thursday 24 April and Friday 25 April. Details here (hat-tip to Housed for the link). A Shelter staffer has left a comment on this blog about developments.

In linked news, concerning as it does LSC funding for not-for-profits, the Mary Ward pro-bono unit is facing closure. The pro-bono unit was supported by the main LSC-funded law centre, but the effect of the fixed fee scheme has been to slash the funding of the Law Centre, so there is no spare cash. Tellingly,

the director told volunteers that because the legal aid caseworkers are working with reduced funds, the centre is having to prioritise simple, short matters and turn away people with complex legal problems.

This is exactly what everyone warned would happen with the funding changes. Sadly, this won’t be the last story of this kind.

How not to pick a fight

Published

on 19 April 2008

in whatever

. 5 Comments

Let us say you were a large US company, looking to throw around your intellectual property muscle for a quick buck by putting a licensing squeeze on small companies. If so, it is probably best not to pick on a small tech company headed by an ex-litigator [link is lengthy but funny].

Libel, fraud and child trafficking

Published

on 14 April 2008

in whatever

. 7 Comments

Or ‘On the Naughty Step…’

Thanks to Mark P for the idea, I bring you news of scandal and criminality from the world of housing, albeit with only the most tangential relationship to housing law.

Gentoo, a Sunderland based RSL and its CEO, Peter Walls, won a £100,000 libel judgment against a website called Dads Place and specifically John Finn, the owner of rival housing firm Pallion and a former local council candidate. The anonymous website had been posting “seriously defamatory allegations ranging from corruption to nepotism and the promotion of female employees in return for sexual favours” said Gentoo’s Counsel. Pallion owned numerous properties in areas earmarked for demolition and renewal by Gentoo. The allegations had led to a Housing Corporation investigation of Gentoo. Worth noting this as another example of a determinedly anonymous website failing to be protection against defamation claims, although it took quite some effort to pierce the veil.

Collapsed and bust RSL Ujima, formerly the largest BME housing association and now part of London & Quadrant, is not going quietly. Three former employees have been arrested for money laundering and conspiracy to defraud, amidst allegations that the Housing Corporation acted late and had plenty of warnings of problems.

Then there is this extraordinary story. A London-based housing officer has been convicted of illegally bringing a child, a baby, into the country, apparently to preserve her priority need status on a homeless application after her children went to live with her ex-husband. The day that she returned from Nigeria with the baby, for which £150-£200 was apparently paid, Peace Sandberg presented as homeless at Ealing Council’s HPU to make a fresh application. The child’s original family is not known. I may be being naive but I can’t believe that this is all there is to the story.

News permitting, this may become an irregular feature - On the Naughty Step may return.

Butterfingers

Published

on 8 April 2008

in whatever

. 2 Comments

In what must be probably the worst experience a paralegal could ever have, Penny Wadsworth has inadvertently caused the collapse of a 5 defendant, £100,000 drugs trial [Guardian Report]. The ‘Kennington Rastafarian Temple’ trial had been running for 4 weeks when a police officer recognised Wadsworth, a paralegal on the defence team. The officer recognised Wadsworth from earlier enquiries and recalled that she had made a telephone complaint about drug dealing at the Temple, prior to the raid and arrests.

Wadsworth had failed to disclose her complaint or its content to her firm, or the defence counsel. When defence counsel was informed, and told the client, unsurprisingly the client ‘felt he could no longer have complete confidence in the neutrality of his firm of solicitors’, as the judge put it.

The judge called Wadsworth to appear before the Court, but decided that, although the result of her non-disclosure was ‘catastrophic’ for the trial, no action would be taken against her. After the prosecution decided not to offer any evidence or to seek a retrial, the defendants were acquitted.

Oddly enough, Wadsworth had apparently worked for a city firm for 20 years before turning to a criminal firm. A rough introduction and I suspect she may now be an ex-paralegal. Although considering that she did achieve her client’s acquittal, maybe not.

One must have sympathy. It might not have been the birghtest course of (non)action she took, but we do all make errors of judgement at some point. The idea that such an error would result in a dressing down in open court and the collapse of a high profile trial is the stuff of sweat-soaked-blanket nightmares.

On the other hand, the irony content of the eventual effect of her complaint about drug dealing at the Temple is so overwrought as to be a ‘Tales of the Unexpected’ plot (a reference that few born after say 1975 will get. Strewth, I’m old.)

No more than expected

Published

on 17 March 2008

in Legal Aid, job and whatever

. 6 Comments

LSC introduces new IT system to file matter start funding claims. System promptly doesn’t work. Three months later, system still doesn’t work. Any idea when it will work? Errrr no. So we send in Excel forms instead.

LSC says “It’s not working as well as it could but it’s not meltdown or anything. We are now in the process of a recovery strategy”.

My giggles are not enough to stop me being pedantic. Can one actually be ‘in the process of a strategy’? Does this mean ‘in the process of coming up with a strategy’? Or ‘in the process of implementing a strategy’? Or, more likely both at once, in the sense of ‘making it up as we go along’?

The hopeful LiP

Published

on 29 February 2008

in whatever

. 1 Comment

Although the energy to do proper case comments has deserted me until tomorrow, I couldn’t resist this exchange, which is just about all that is reported of Bedi, R (on the application of) v London Borough of Hounslow [2007] EWHC 3311 (Admin)

MR JUSTICE COLLINS: Now, Mr Bedi, as we have discussed, and for the reasons I have indicated, I am afraid I am going to have to refuse permission. As I say, you at least have the advantage that it has not cost you anything, at least not cost you anything so far as court fees and other side’s fees are concerned, and leave it to you to decide whether you wish to pursue it any further. But you can indicate, if there is any problem raised at any lower court, if you do decide to pursue any claim — and I am not saying that you have a good claim; I have not gone into that — that I have indicated that in my view quite clearly this is a matter that is not a public law claim and which should be pursued, if it is to be pursued, as an ordinary civil claim.
THE CLAIMANT: Thank you, my Lord.
MR JUSTICE COLLINS: All right?
THE CLAIMANT: My Lord, you have mentioned I have not lost anything. I would ask your Lordship to grant me to this cost because I’m litigant in person and I believe I’m entitled to it.
MR JUSTICE COLLINS: No, you are not entitled to any costs. You have not succeeded.

The route to Justice

Published

on 18 February 2008

in whatever

. 0 Comments

Funny old day… (click for big pictures).

In the sun, it is like a Le Corbusier dream

Outside the RCJ. Big issue seller and McCartney hunters

Evictions weren’t going to make the news

Obvious filler 6

Published

on 15 February 2008

in whatever

. 5 Comments

My occasional attempts to get cheap laughs at the expense of passing bewildered internet searchers are getting more difficult. Virtually all of the search terms that have brought people here recently are legally related and most even make sense. I hate it when the lazy blogger’s fall back turns into hard work. So, if you detect any sense of strain in this, should the frantic feet of the serene swan become apparent, be gentle, because I’m doing it for you.

Fortunately, the odder or more hopeless of the searchers come in thematic waves

1. The fixated

shiny shorts

Yes, but only through sitting down a lot. My G.A.Y. days are over.

father

No. Not unless I have a horrible dark secret.

spanking part 1

Part 1? I mean spanking is all well and good between consenting adults, but with an interval? Do you have a g&t and discuss the performance so far? Or just sit in awkward silence pretending to read the programme. ‘Oh I see that that the table tennis bat plays a much larger part in act 2′?

irish hobby horse

I don’t think that this is to do with Tristram Shandy, because next question is…

irish dominatrixes

It’s the red hair and freckles that they dream of in the gimp mask.

dominatrixes of the world

Tired of freckles, he now wants them bestriding the continents, with their PVC leggings chafing the equator.

I’m all for human variety, but sometimes I wish it didn’t end up at this blog. I only get confused.

2. Trouble with the law

legal revenge on neighbours

Again! Let it be or it will surely end up in the Magistrates Court.

justice for litigants in person

Topical but may be related to the next question…

claim struck out can i start again

Nope. What the hell do you think the law is actually for, really? At least have the decency to bring a doomed and hopeless appeal.

pipex notice of copyright infringement rush hour 3

Or the definition of pathos. Of all the films to be done for downloading…

joint tenant court case death divorce

I’m just hoping this isn’t an either/or question.

3. Access to the law

can my mother get legal aid

Maybe, but motherhood per se is not a qualifying state. I’m assuming google doesn’t actually know your mother’s income, but hey, these days…

The next two questions are a sample of five incoming variations on a theme…

what type of help at court can i expect from community legal service funding regarding a housing injunction

what type of legal help can i expect from community legal service funding regarding a housing injunction

Sadly for this determined seeker, I think the answer is ‘depends’. Are you on the receiving end, or seeking to bring a personal injunction? Are there any related criminal proceedings or ASBOs? In any case, you’ll need to find a legal aid solicitor to actually apply for public funding. There are still a few of us.

how do you actually claim legal aid

Leave it to the solicitor, really. Frankly, it is a painful process and you won’t get it without a solicitor anyway. Consider it one of the many ways in which we try to make your life easier.

chambers barristers one stop shop

Now there is an idea. A Myspace of Counsel, perhaps, or an Amazon of the Bar, with customer reviews. “I was disappointed that barrister X had both a chin and a trace of a northern accent. Frankly this was not what the brochure had led me to expect. I eagerly awaited being patronised, and finding my concerns sensibly addressed was, I felt, poor service. And their coffee was weak. Two stars”

4. Becoming a lawyer, or not

does finishing lpc make one a lawyer

Dream on. It’s not like those poncy ‘non-practising’/couldn’t get pupillage barristers you know.

what happens after the lpc

Depends. Hopefully, at some point, a traineeship. Otherwise, have you considered media sales?

i need an lpc licence but can t pass the test for counseling can you help

Eh? and no. And whatever this is, should you have the licence without the counselling test? It sounds, you know, quite important.

4. Life as a lawyer

what is anor in legal terms

A short legal career.

if a slicitor has been lied to by his client can he drop him

Did they lie about paying the bill?

housing law made easy

I do my best, I really do, but it isn’t. Sorry.

5. History

when was lambeth settled

It never has been and still isn’t.

Green Ink and old Olivettis

Published

on 11 February 2008

in job and whatever

. 5 Comments

With my usual and frankly uncanny ability to be a couple of days ahead of the zeitgeist, I posted on litigants-in-person a few days ago, only to see the Guardian do a feature piece on LiPs today. Granted they put a little more effort into it, and actually interviewed people and things like that, but we say pretty much the same things.

In addition, my post is much, much shorter, and so, brevity being not only a virtue but a mark of elegance, I can only pity the poor Guardian having to play catch up by substituting a modicum of effort and research for pith.

The Guardian article is actually quite an interesting piece. It cites a 2005 survey that found many that LiPs considered that:

lawyers were not necessary or not best placed to advance their interests. They saw themselves as more factually expert in their dispute and more able to manage their case than a lawyer - or they just wanted to “have their say”. Less constrained by legal notions of relevance, they could advance arguments or raise issues that a lawyer would not.

But of course, they can’t, because that is not how the Courts work. The result is, as the survey showed, that:

those who handle their own litigation make more mistakes than lawyers do - and more serious mistakes - and that the outcomes of their cases are generally worse than for those who are legally represented.

Nonetheless, their numbers are on the increase, driven by income limits on legal aid. Apparently Family matters have the largest proportion, which should come as no surprise.

There is one quote, from an Appeal Court Judge, that eloquently sums up the view of the LiP at appellate level. Forgive me quoting at length:

There is no sight more depressing than that of a litigant in person, borne down by frustration, anger and plastic bags filled with unsorted paper, staring up at the judge in the expectation of some quietus. What he wants, no court can give: some public acknowledgement and satisfaction for a deeply felt grievance, some release from the anger and misery induced by a resentment growing ever stronger as the years have passed. If only someone had listened and appreciated the hurt early on.

But by the time the litigant in person gets to court it is all too late. The time for listening has passed. The court, often faced with vituperation expressed in green ink or inadequate spacing between the lines typed on an old Olivetti, cannot hear what may have been a genuine cause for complaint because the complaint is lost in the sound and fury, and the litigant won’t listen because no one has been prepared to listen to him in the years gone by.

What is needed is not only understanding but therapy. The courts grapple with the former, but they inevitably fail to provide the latter.

This is unfair to many LiPs, who are doing it because they have to. However, the desperate and hopeless appeal, made in the conviction of the utter rightness of the cause, is the mark of the archetypal LiP, and, going by my visits to the Admin Court office or the Court of Appeal office, there are no shortage of those at present. The real question is why are they always in front of me in the queue?

The CAB at the RCJ is also mentioned in the piece. Given the number of what might be euphemistically described as ‘interesting’ calls we get from people who say that this CAB has ‘referred’ them to us, their daily work must be extraordinary.

Later on, I ended up browsing the list of vexatious litigants at the HMCS site. Now there is a documentary waiting to happen. How about:

ARNOLD, Dorothy Mignon (aka Gracie) who became a vexatious litigant on 17 December 1956

or BEBBINGTON, Ann Marjorie (aka EASTON, Ann Cholmondeley) - 31 January 1969

or O’NEILL, Thomas (aka Lord Charles Leslie Falconer of Thoronton) - 9 June 1998

The idea is going cheap…

Caroline Flint speaks her brain

Published

on 5 February 2008

in whatever

. 6 Comments

Caroline Flint being bright In a time when the shortage of social housing is at something of a crisis point, the housing minister has some thinking to share with us. Unfortunately, it is this. (Also BBC news page and the Guardian).

Let us make the rash assumption that this proposal to eject work-shy malingerers from their council tenancies is not an empty piece of vote catching cynicism, in fact let us go so far as to assume she might actually mean it. What we are then left with is something very silly indeed, lacking as it does both carrot and stick for those subject to this return of the un/deserving poor distinction.

The only carrot on display (apart from actually being allowed to have a council tenancy) is employment. That is not necessarily so attractive to those involved as it is to the government. Anyone earning above a very low threshold has to pay a large proportion,or all of their housing costs (rent, council tax), and of course there are the additional expenses of childcare, transport, tax credit overpayment deductions etc.. Tax credits don’t cover the difference, particularly for lowest paid.

Many of the people I see who have fallen into rent arrears have done so precisely because they have taken a job without having carried out the complex calculations on benefit eligibility, likely tax credit level etc. necessary to work out if they can afford to do so. It is unsurprising that they can’t do this, as it is apparently beyond the wit and capability of most government departments and benefit authorities. The tenant’s income then turns out to be lower than that needed to replace the removed benefits. In fact, in one of the ironies all too common at the benefit/low pay nexus, it is often being employed that results in Council tenants being evicted. Is the Minister proposing that the minimum wage should be flexible enough to include required housing costs? I thought not.

Sticks are also in short supply. Flint suggests the prospective tenant should sign up to an enforceable contract to seek work, which would result in eviction if they breach. Of course this would not apply for those ‘clearly’ [sic] incapable of seeking work. If you are vaguely or perhaps mistily incapable of seeking work, tough.

So, we can assume she proposes to re-write both Part VI and Part VII routes to tenancies - via housing list/bidding scheme and homeless application. Oh and remove the statutory duty on local authorities to provide accommodation to the eligible homeless. And then ensure that the DWP and the local authorities are integrated enough to properly decide on when someone has breached the contract. And then face down the inevitable human rights challenges to setting such a condition on access to housing and on a continued tenancy (particularly where no such condition applies to private sector tenancies).

Is this going to happen? No. Unsurprisingly, Downing Street seems to be backing away from the idea at speed, with the Voltaire manoeuvre - ‘I might not adopt this as a firm policy but it is a good issue to have a debate about’. Rather worryingly, Grant Shapps the shadow housing minister, shows such a firm grip on his brief that he appears to actually believe that:

“Ministers and local councils have a statutory duty to house homeless families with children and so they can’t boot them out of their houses without then providing alternative accommodation”.

Somebody please tell the shadow minister about intentional homelessness quick.

That is the practicality out of the way. I think it is safe to assume that this idiot proposal isn’t going to get off the ground. But that isn’t satisfying enough. Let me be clear that this party apparatchik, who displays a classic new labour route to becoming an MP of NUS officer, policy wonk, equal ops officer and union researcher, has come up with a foul and loathsome idea, one that surely a literature graduate should realise has been tried and failed repeatedly since the early 19th Century, that being separating the good poor and the bad poor.

Social housing, like the rest of the welfare state, is based upon the principle of need, not merit.(Good heavens, I’m having to remind a labour minister of the basic principles of the welfare state). It is supposedly there for those who, for whatever reason, find themselves in need.

It may be a deceptively simple ethics, but its genesis was complex and founded on long experience that attempting to distinguish between meritorious need and undeserving need was complex, inevitably unfair and unjust, at the mercy of politics and the whim of those who themselves had no call on welfare provision, and just plain unworkable.

The obvious comparison for Flint’s brain spasm is with the calls for the obese not to get NHS treatment for related illnesses, under the guise of encouraging people not to be obese.

There is a kernel of truth in there, of course. There are areas of a dramatic concentration of poverty and deprivation. These same areas are usually suffering from a lack of services, support, training etc.etc.. Flint should be aware of the difficulty of changing this, and some of the steps required as she has just come from being a junior Employment minister. But rather than actually deal with that, let’s blame the tenants.

Flint, again classically new labour, mistakes cause and effect. Having been ’surprised’ to find that social housing, which is there for people with a low or no income, is occupied largely by people with a low or no income, she decides that clearly the problem is that these people have actually got access to housing.

Perhaps we should have a contract for ministers, to actively seek good policy ideas and not succumb to the temptation of Daily Mail ‘proposal’ farts. When they breach this contract, they have to leave their office. After all, it is the hard working decent people of this country who are paying for them to stay there. Why shouldn’t these ministers have to actually do some proper thinking rather than sitting around appearing on TV all day?

And I’ve just found Polly Toynbee agrees on all counts. This is a daft idea [mp3]. I’m not sure how delighted I am by that.

[Edit 6/02/08. William Flack picks this up and compares Flint to Edwina Curry. Miaow, but true.]

Human Rights for customers

Published

on 15 January 2008

in whatever

. 0 Comments

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?

Hey, you asked…

Published

on 12 January 2008

in Housing law and whatever

. 3 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 judgement, 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 proceedngs 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, Childrens 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.

After wigs, cravats

Published

on 10 January 2008

in whatever

. 5 Comments

And we thought the sound and fury over whether bench, bar and solicitor-advocates wear or don’t wear wigs was bad. From the land of more relaxed court-wear comes a debate over whether a cravat (or an Ascot, depending) is appropriate for an advocate or rather ‘borders on contemptuous’. Shockingly, bowties are apparently thoroughly respectful.

Thanks to WAC for the link.

RCJ evicts thousands…

Published

on 30 December 2007

in whatever

. 0 Comments

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?’

Blog ethics, vanishing archives and the future

Published

on 10 December 2007

in law blogs and blogging and whatever

. 3 Comments

The general bloggers’ view is honesty above all. You may have said something that turned out to be catastrophically wrong - fine. You admit this in a later post. You may have posted something deeply embarrassing - fine. You take the response on the chin and hopefully your honesty and grovelling wins out. Your blog ends up being something quite different from the way it started - fine. Your archives show the ‘journey’ (shudder).

I usually share this view. However, I am about to (or have already, depending on when you read this) delete some few posts from my public archive. Given that this is something I would normally sneer at, I thought a brief excuse-me might be in order. I can’t fully explain the reasons why, although they may become apparent shortly, but it is partly self-preservation. Nobody will miss the posts much or at all, they are generally the personal ones. A view naughty words may or may not go as well, depending on how bowdlerising I feel at the time. My apologies for any broken links to those kind enough to link.

I have also reached a small decision, a decisonette if you will, on the future of the blog. Call it weariness, call it lack of time, call it a failure of inspiration and enthusiasm, but I’m just not feeling the joy. So updates on this blog will be pretty much exclusively housing law or legal aid related from here on in and therefore intermittent, depending on what comes up.

The blog has been going for 18 months and 258 posts, (which is 14.333 often lengthy posts a month. No wonder the novel never got written). It is time to cut back and concentrate on where I can hopefully be useful. Still, if the mood takes me…

Badness in courts, of courts and of law lecturers

Published

on 29 November 2007

in Legal Aid and whatever

. 0 Comments

A quick outline of a busy news day…

What Price Justice The 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.

Oh what a tangled web…

Published

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.

Rumours of my demise…

Published

on 19 November 2007

in law blogs and blogging, tech and whatever

. 1 Comment

… were entirely due to a technical hitch. Admittedly a walloping great big technical hitch which lasted 3 days and was only resolved by the site being moved a new server and the Domain Name Server records being updated. But as of 11.30 pm on Monday, the site is working again. What time you get to see it live once more depends on how slowly the new DNS information spreads around t’internet.

Still, the sense of panic, bewilderment and deprivation the 3 day outage instilled has set me wondering about little things like dependency, addiction and the whole quality of life issue…

By the way, if anyone emailed me between Friday night 16/11/07 and now you will probably have to send it again. Yes, email went as well.

[20/11/07 - and now comments are working again after some server level tweaking. Thanks for the tip off, John. Any other problems people come across, please let me know, but it seems OK now.]

Not the usual bug infestation

Published

on 14 November 2007

in Housing law and whatever

. 0 Comments

Hat tip to Cearta.ie for this extraordinary story from the Irish Times:

Landladies ordered to pay students €115,000 in damages
Simon Carswell 14 November 2007

Two Dublin landladies have been ordered to pay damages totalling more than €115,000 to 10 students who were tenants in their house after the Circuit Court found they had kept the students under secret electronic surveillance. …

The students became concerned in late 2004 that their conversations and activities were being monitored when the McKennas referred to details the students had discussed in private in the house. When they raised the issue with the McKennas, the students were evicted. … Judge Gerard Griffin yesterday found that the evidence in the case left him “in no doubt whatsoever that the defendants had kept these plaintiffs under electronic surveillance”. … He found the students’ rights to privacy had been infringed and he awarded them damages varying from €7,500 to €12,500 each.

Which raises the question of what sort of pervert would actually want to listen to endless student angst-conversations. Or watch video that would be about as exciting as the 4 am live feed of Big Brother? Surely the punishment is found in the offence itself?

All back to mine

Published

on 8 November 2007

in Housing law

. 2 Comments

After yesterday’s note, an all too brief comment on an interesting Court of Appeal case defended by the firm of a regular reader/commenter, William Flack of Flack & Co.

Wandsworth v Randall [2007] EWCA Civ 1126

The situation - son succeeds to a parent’s secure tenancy on their death. The son is, at that point, the sole occupant of a 4 bedroom house. Over six months later the Council issue a Notice Seeking Possession on Ground 16 Schedule 2 Housing Act 1985 - under-occupancy by a successor. The Council offered a one bed flat as suitable alternative accommodation, which was refused by the tenant. Before proceedings were issued, the tenant’s half-sister and mother moved into the property. Further offers of one bed flats were refused. Proceedings were issued and

The Deputy District Judge made an order for possession. He held that (i) the accommodation afforded by the Property was more extensive than was reasonably required by Mr Randall; (ii) the flat at 49 Augustus Road was suitable alternative accommodation and (iii) it was reasonable to make an order for possession. In reaching this conclusion, he left out of account the needs of Mr Randall’s mother and half-sister, since, as he held, they were not members of his family at the date of Mr Randall’s succession to his grandfather’s tenancy.

An appeal to a Circuit Judge was successful, holding that the relevant date for assessing suitable alternative accommodation was the date of the hearing, thus including the tenant’s family, so that a one bed flat was not suitable.

The Council appealed to the Court of Appeal, arguing that for policy reasons, Parliament could only have intended the date of succession to be the relevant date. Otherwise under-occupying tenants could move family members in purely to defeat the possession.

The Court of Appeal was having none of this. Points to note:

It would effectively involve reading ‘at the date of succession’ into the statute at various points.

The general requirement of ‘reasonableness’ is at the date of hearing.

The requirement for ’suitable alternative accommodation to be available’, via HA 1985 s.84(1) applies to grounds 9-16 generally, and for the other grounds, it is clearly a consideration at hearing whether suitable accommodation ‘will be’ available - post hearing - such that suitability is determined at the hearing. This must apply generally, as date of succession is not an issue for Grounds 9-15. So any argument for a special case for Ground 16 can’t stand.

Any tenant’s attempt to game the system by importing relatives purely for the period of the possession claim is precisely an issue for ‘reasonableness’ and suitability of alternative accommodation, and thus for evidence at the possession hearing, not a purposive reading of statute and a set date.

Given that it is for the Court to decide on reasonableness of giving possession, the Council is not entitled to certainty ahead of issuing the claim by basing it on the occupancy at the date of succession.

The case was remitted to the County Court with a recommendation that reasonableness would be based on whether a three bed property would be available as suitable alternative accomodation.

That looks pretty much like a win on all counts, save for the remittance, which was probably inevitable.

So, any offer of suitable alternative accommodation for the purposes of a Ground 16 possession claim must be suitable for the tenant and family occupying the property at the date of the hearing, subject to the Court’s verdict on any evidence put before it of the temporary importation of relatives.

William, if you are reading this, congratulations to all involved.

I may be some time…

Published

on 31 October 2007

in job and whatever

. 1 Comment

Very very busy and very tired, I currently come home and just stare blankly at the demanding voracious maw of the blog monster-child. Being too shattered to come up with anything to stuff down its greedy gullet, I can only feel guilt at its piteous cries of abandonment. It’s like Eraserhead, honest.

Which is one way to say that I may not be posting for a while, depending. But I will at some point soon-ish, hand on heart.

A Coat of Gloss for the Bar

Published

on 30 October 2007

in whatever

. 0 Comments

Now call me a cynic, but how much like PR nonsense does this article in the Times about the programme for the Bar Conference 2007 sound?

Ah, yes. Human Rights pervade all aspects of the profession, that and an ability to export legal services. Well yes, acting for vulture funds indicates a remarkable regard for human rights, so no contradiction there.

The organiser of the conference, Catherine Addy, a ‘young’ Chancery practioner is apparently terribly au courant with human rights. Heavens knows how it affects a Chancery practice, but never let it it be said that a lack of practical knowledge impedes a member of the bar. I’m also delighted to see that a concern for rational argument has won out over seeking desperate reaction-prodding sensationalism by inviting Melanie Phillips to a panel discussion.

If somebody wishes to inform me how Human Rights inform a Commercial or Chancery Bar practice, or indeed the practices of a large part of the Bar, other than the obvious ones, I would be delighted to be put straight.

In further shock news, ‘I had no problem gaining access to the Bar’ says the comprehensive educated, northern, Cambridge graduate Chancery Barrister organising the conference. ‘As one of the themes of the conference is access to the Bar, I don’t feel at all used as a token’, she didn’t say.

Oi, you, Pipex Internet

Published

on 26 October 2007

in tech and whatever

. 24 Comments

This has nothing to do with law, but sometimes a personal howl of frustration must be let loose.

The topic is crappy internet service providers. To be specific, Pipex Internet. I am a Pipex subscriber, although not for very much longer. I have been for years. It used to be a reliable and not overly expensive provider for a 1Mps ADSL connection.

Over the last year or so, things have gone badly wrong.

First was the upgrade fiasco. With the introduction of new subscriptions and the promise of ‘up to’ 8Mps connections, I was naturally interested in transferring - paying less for a faster connection. The online upgrade application page was mysteriously ‘coming soon’ for months. Eventually I called. It appears my connection has been Local Loop Unbundled (LLU), where Pipex take control over the equipment in my local telephone exchange. Ah, I thought, surely this is a good thing. Haven’t all the internet providers been telling us that LLU would enable them to upgrade the connections far more easily and provide a better service?

Not according to Pipex. They couldn’t upgrade the LLU equipment to an ‘up to’ 8 Mps connection because of ‘technical problems’, although the remainder of the BT controlled exchange was already at 8 Mps. When would these ‘technical problems’ be resolved? They had no idea, there was no projected timescale. So, I asked, was I in a worse position that if I had a BT account or a non-LLU account? Yes, they said. Why was I paying more than their 8 Mps offering then? They agreed to reduce the price of my account to the mid range 8Mps account price (I wanted to retain the unlimited useage). Did they upgrade my account to a 2 Mps one, which the current equipment supports? No.

Fine. Begin researching about switching.

Three months later - a few days ago - I received an email stating that, as I had not responded to ‘previous communications’ about a missed direct debit, my account would be cancelled in 10 days unless the problem was sorted. I had received no previous communications, either by phone or email.

I called the next day - but to the main number because this ultimatum looked like a phishing attempt. After 21 minutes on hold, (I timed it and have a record), I found out that it was a credit card expiry date issue. Fine, easily sorted. But why was the first I knew about it an email threatening disconnection?

It’s an automated email.

I guessed that, but why does it refer to previous communications?

There was a first email.

When? I did not receive it.

It’s an automated process.

Well, it failed.

Anyway, now you have sorted the payment out, your account will be taken off suspension.

Suspension? What suspension?

It was suspended this morning.

I knew nothing about this. There was no warning.

It was in the first email.

I didn’t receive the first bloody email

Sorry about that. The account should be unsuspended after 2 hours. you will need to restart your router.

I get home some 5 hours later. Restart router. Nada. Restart router. Nada.

Call Pipex, explain situation.

Yes it is on the list to be unsuspended, it will be done within 24 hours.

I was told 2 hours.

Yes, 2 to 24 hours.

So where is it on the list?

Within 24 hours.

The connection came back up about 11.30 pm, so I suppose it was only 11 hours.

What can I say, at least without spitting invective. I can’t blame the call centre monkeys, I can only blame the stunning incompetence of Pipex in managing, organising and running both their customer service and their technical departments. What I have had from them is cheap, lazy nonsense. They were happy to take my money for an over priced, out of contract, out of date connection, but they can’t actually put any effort in to sort out their own technical cock-up on the LLU or to make sure their automated ’service’ systems actually work. Plus they resort to an automated threat (that resembles phishing) at the earliest opportunity. I’m a litigator, I don’t respond well to threats.

In the face of this colossal arrogance and abrogation of responsibility, I’m off to a service provider that actually provides a service. I await the conversation with Pipex’s rentention department with interest, as they are already on record as fibbing to people that no other service provider will accept a transfer of their LLU accounts. Not all will, granted, but there are plenty of exceptions.

A pity. Pipex used to be a good company. Still they were purchased by Tiscali, so there should be no surprise that it is now crap in all regards.

16/08/08] Comments on this post are now closed. But think on, Pipex, think on.

Nan Goldin photo - ‘not porn’ shock

Published

on 26 October 2007

in whatever

. 3 Comments

In one of the least surprising outcomes of a CPS consideration of merits of prosecution since, oh let’s say the cash for honours flasco, ‘Klara and Edda bellydancing’ has been decided to be ‘not indecent‘.

So, a photo previously ‘investigated’ for indecency in 2001 and found not indecent then, that has repeatedly been published in the UK, and that was to be exhibited in a contemporary art gallery has required a 6 week investigation to be ‘cleared’. Stunning work.

Perhaps it took 6 weeks because the prosecutors had apparently to address the utterly metaphysical dilemma of whether ’standards of propriety’ had changed since 2001. Is there no minimum period for the re-consideration of standards of propriety? Could it conceivably be a month by month or week by week task? What if there is a long trial? Could standards of propriety have changed by the end of the trial? And if so would the CPS be under a duty to disclose the change in standards?

However, the CPS did give deliver the understatement of the week:

Even if the photograph was now considered to be indecent, a defendant would be able to raise a legitimate defence, given that the photograph was distributed for the purposes of display in a contemporary art gallery after having been deemed not to be indecent by the earlier investigation.

That much was clear from the beginning, so what the hell was everybody wasting their time for? And the great unanswered question, why did the idiots at the Baltic call in the noted cultural critics of the Northumbria Police for their views in the first place?

A farce in a teacup, frankly.

Overcrowding and homelessness

Published

on 22 October 2007

in Housing law

. 7 Comments

Right then, Harouki v Royal Borough of Kensington & Chelsea [2007] EWCA Civ 1000.

The scene in a nutshell. A statutorily overcrowded household, in terms of Part 10 of the Housing Act 1985, s.326, which gives rise to a criminal offence under s.327

A homeless application under s.175 “entitled to occupy” and s.175(3) “reasonable to continue to occupy”. A negative s.184 decision, and review decision and s.204 appeal decision on the basis that it was reasonable for the appellant to continue to occupy the property.

The whole case turns on the Code of Guidance issued by the Secretary of State in respect of Part VII applications. This guidance states:

“8.26. Section 177(2) provides that, in determining whether it is reasonable for a person to continue to occupy accommodation, housing authorities may have regard to the general housing circumstances prevailing in the housing authority’s district.

8.27. This would apply, for example, where it was suggested that an applicant was homeless because of poor physical conditions in his or her current home. In such cases it would be open to the authority to consider whether the condition of the property was so bad in comparison with other accommodation in the district that it would not be reasonable to expect someone to continue to live there.

8.28. Circumstances where an applicant may be homeless as a result of his or her accommodation being overcrowded should also be considered in relation to general housing circumstances in the district. Statutory overcrowding, wi