Regular readers of this blog will have read our comments on (in our view) a fairly poor example of service charge management by an RSL, entitled On the Naughty Step. To my surprise the RSL in question — Stadium Housing — have decided to appeal the decision.
This should prove interesting as they appear (so my information goes) to be appealing against
- the refusal by the chair of the LVT to recuse himself because he is a member of the Housing Law Practitioners Association
- the application of the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1991/2083)
- the refusal by the LVT to estimate (one might say “invent”) service charges where there was no evidence as to what, in fact, had been spent
The first ground will be of particular interest as many LVT’s have one or more HLPA members on the panel. The idea that such membership should normally require recusal would have far reaching consequences. The other two grounds of appeal may also produce interesting comment from the Lands Tribunal.
Doubtless the decision on appeal — when it comes — will be blogged here.
That should be very interesting and quite possibly entertaining.
I would be frankly gobsmacked if they succeeded on the HLPA point!
The decision on the application of the UTCCR will be of some significance, if it gets to that stage, as will the conjuring up of figures point. What sort of timescale are we looking at? 10 months to a year?
They need to ask the LVT for permission first and I believe that this is what they’re doing at the moment (hence the news re an appeal). I imagine this will be refused by the LVT.
They can then renew to the Lands Tribunal who will decide whether or not to grant permission and what sort of procedure to adopt (re-hearing or review. There may be an argument for re-hearing as HLPA itself may want to try and put in some evidence!)
So, yes – likely to months to a year.
Does HLPA allow membership for LAs / RSLs & their in-house legal representatives?
Yes
No is the correct answer. I applied (corporately for our in-house Almo legal team) and was turned away.
HLPA may hoodwink the world at large, and some of its more naive members, into thinking that it acts in support of the rights of tenants. It does in fact work in support of the costs bills of unscrupulous solicitors and their agents, [edited by NL to remove unwarranted personal accusation]
Stadium chose the wrong fight here and are sure to lose. It will be an embarassment and the hyenas are sure to whinny from the sidelines. But this should not deter those with a genuine interest in the just provision of social housing from exposing the bias harboured by this pernicious organisation.
@Colin Johnson: That’s quite a jump, from you being refused membership to HLPA being based on unscrupulous, pernicious featherbedding. One wonders why you wanted to join in the first place. And also, inevitably, one wonders why you were turned down. Do tell.
The only condition that HLPA requires of prospective members is that they’re prepared to adhere to a code of conduct, which you can find here: http://www.hlpa.org.uk/code.shtml. Anyone who is prepared to agree to that code of conduct should be admitted as a member. When did you apply?
Plainly, individual lawyers / surveyors etc have individual political views but HLPA as an organisation does not even come close to promoting a biased view. A large number of HLPA members (barristers, soliciors and surveyors) have signifiant ‘landlord’ practices. Just look at some of the names speaking at the HLPA conference!
There is a real danger in housing practitioners (lawyers, surveyory, LA / RSL staff etc) taking such a partisan approach to our area of work that the Goverment will be able to adopt a “divide and rule” approach – cutting money for LA / RSL support services and for lawyers to take important points of law and policy for their clients. Andrew Arden QC said it much better than I did – see his exchange of letters with John Holbrooke in Inside Housing during 2007.
From the profiles of the committee mebers, HLPA seems a bit metro-centric and hence I don’t know any more than what’s written on the website, but their stated aims can only be described as laudable.
Colin is at least right about one thing: the case is hopeless and Stadium will end up with egg on its face. The UTCCR angle is tenuous at best, the likeliness of overturning the point on the extortionate service charge remote, and the issue of the chairs refusal to recuse himself is easily rebutten by providing a simple list of HLPA’s RSL members.
Thanks J, your much more measured tone than mine (and NL’s) had the instant effect of making me want to mirror your reasonableness… bet you’re the Milton Erickson of advocates in the courtroom.
Your message though is to imply that some (or lots) of other RSL’s have managed to pass the HLPA vetting process. Derecks point is well taken, if HLPA represents members from accross the full span of opinion, Stadium will have nowhere to go.
I don’t doubt for a second that barristers, solicitors and surveyors who represent LLs & tenants are on board, but which RSL’s have joined up?
Or is that a secret?
I’m a homelessness officer, I have nothing to do with LVTs.
So is it true that folk like N Nicol are allowed to sit on them? His polarised views are well known – evidence his articles in Legal Action and on the Shelter website. Nothing wrong with polarised views, but you can’t also be an independent arbiter, surely.
@tim the trouble is – where does it end? Most judges will, at some point in their careers, have expressed opinions in writing one way or another. Should that force them not to sit?
In my case I have written for the Legal Action Group (both a book and articles for their magazine) and am obviously involved with them. Does that make my views suspect if I were to try to sit as a judge. Where does that leave the judicial careers of Jan Luba and Nic Madge?
Or for that matter, a surprising number of practising barristers are members of the free representation unit, which exclusively represents employers in the employment tribunal, should (one wonders) any member of FRU recuse themselves from sitting as an employment judge or on the EAT (or further up the hierarchy).
Many of these questions do have a judicial answer, see for example the following from Locabail:
“Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in text books, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers…”
But others have to be approached on a case by case basis. In this case (as I have said) I suspect that far too many LVT members would be disqualified by such a ruling for it to be even vaguely sensible. Barristers often join societies such as HLPA without having a strong bias themselves. Recall the cab rank principle which requires us to take the cases that come…
@Colin Johnson: In the catching mood of moderation… I’m not involved enough in HLPA to be able to tell you which RSLs have members (but then not all RSLs have in-house legal). HLPA’s criterea for joining are being able to honestly sign up to the objectives – primarily promoting tenants’ rights. As far as I know, there is no further ‘vetting process’. I do, of course, stand to be corrected.
But on the rest of your comment, I don’t think it is even a question of ‘the full span of opinion’ being represented that would be required to absolve HLPA. It just requires one being an adequately professional lawyer.
I’m fairly sure that my part in this blog makes clear that I usually act on a legal aid basis for tenants, as I usually write from that viewpoint. But I have acted and do act for for landlords on occasions and, I’m confident, with the same commitment to the case in hand. I’m also confident that I can and do do so without contradiction to the objective of promoting tenants’ rights.
While I understand it to some degree (at solicitor level, day to day litigation can resemble trench warfare), I am also slightly puzzled by the assumption that, because one may have views on certain cases, or on the operation and effect of areas of housing law, this somehow impacts on one’s ability to function as a lawyer, or a member of the judiciary. Or, to put it another way, that to espouse tenants’ rights is to be seen to be taking sides to the extent that a landlord will not get a fair hearing. One of the points about our profession is supposed to be the ability to take an (relatively) objective view of a case, its merits and chances of success. If we can’t do that, we are not doing our clients any good. And we’d be very crap lawyers – and that is even before appointment to tribunal or bench. By the way, one of the of the HLPA requirements is to act professionally at all times.
If it was true that a lack of a ‘full span of opinion’ was a major issue for a professional organisation, should SHLA members recuse themselves from LVT or judicial position, given that the SHLA has a distinct and public viewpoint, which on some issues amounts to espousing not so much the landlord’s rights as the landlord’s interests? I can’t recall anyone at all suggesting this, or making any accusation of bias. And, for the sake of clarity, nor should they. But that is where a perceived factionalism would end up, with lawyers whose role or experience or perceived personal opinions were primarily on one ‘side’ or the other being prevented from actually using their knowledge for the benefit of the Tribunal or Court.
My previous question about why your application was turned down was not, or not entirely, a dig. I am genuinely curious: given my own experience of HLPA, it does strike me as rather surprising.
Our team is not signed up to SHLA either. From the look of the website, they’re in hibernation.
My views do not always (I hope) represent those of my employer so, in the interests of independence of expression (and to avoid disciplinary action), I’m not going to to let slip who puts the bacon on my table.
When the list of RSLs is up on here, maybe we’ll approach a few of those to see how to beat the HLPA gatekeepers, so I may introduce myself personally at the December meeting… if I can spot who the Scarlet PimpNL is!
As to the notion that some lawyers act “for” tenants and others “for” landlords, I don’t buy it. Housing lawyers (at least in the realm of social housing), if they are to see their work as more than an academic exercise in which their sole aim is to beat the other side whatever the consequences, should act in the interest of social housing itself. That’s my approact when I get up in the morning.
Social housing law is inherently in favour of its own implicit “overriding objective” of keeping a roof over the heads of tenants, many, or even the vast majority of whom, would not have the means to house themselves outside of the social sphere. And rightly so.
The leniency of the courts towards rent defaulting tenants in particular, is a testament to this, and who, (not least in the current climate) could argue that judges should not do all they can to help the needy through hard times.
HLPA members consistently display a contrary intent to the interest of social housing. They see social housing merely as a public money trough from which they can gorge ahead of the tenant animals for whom it was intended.
If HLPA were to show a little more respect for tenants, their reputation among those who work in social housing could only be enhanced. Until then, the likes of Nik and Mel will be seen as they are:- condescending, lordly, patronising.
Tenants are not farm animals.
Chastised for joviality & sent to the naughty step, I haven’t logged on for a few weeks. I promise to (try to) be more po-faced in future.
That said, I can see there’s been no shortage of fun in my absence.
The family firm stuff was excellent theatre & I too salute NL’s forebearance in the face of hostility. (If only s(he) were so tolerant of satire).
This one is also a lively spat. I’ve never been to a HLPA meeting but some of my colleagues are regulars. Colin & Tim are bang-on with their appraisals of the prevailing attitudes of those who choose to join that association. Our lot love tenants to bits (but wouldn’t want them round to dinner).
There’s no doubt in my mind that active members of that organisation are unfit to adjudicate on any landlord and tenant dispute unless adequately counterbalanced.
Employment Tribunal panels are made up of a chair (now called a judge I hear) and a representative each from the TUC and the CBI. If LVT panels were to follow suit and have representatives from, say, SHLA (if it still exists) as well as the tenants’ reps from HLPA, it would do no harm at all in contributing to justice being seen to be done.
I think that there are a few of issues here. I would like to comment as follows.
1. Have HLPA changed their approach to who can go to their meetings. I remember being at a HLPA meeting where someone who worked for a local government legal department was asked to leave by the person charing the meeting after their presence was reported. They had to get up and walk out in front of everyone despite protests from the member who had brought them. Very unpleasant. I should add that this was about ten years ago. I did not go to many more meetings other than the annual meeting after that.
2. Have SLHA gone into hibernation then? They always sounded like a fairly comical bunch to me. Melanie Phillips types bemoaning the bias of the courts against evicting families applauded by ex lefty lawywers who had gone for the bigger bucks and shorter hours of landlord work pretending to share their views until one day the wind changed…and oh dear…they really did share them.
3. We must surely be able to move on from the infantile idea that Nik Nichol and other figures associated with promoting the rights of tenants are not capable of sitting on tribunals and reaching balanced decisions. I have never heard any suggestion that Nick Madge has been anything less than exemplary as a Judge despite his association with tenant orientated organisations and publications. Nobody would suggest that Jon Holbrook, Wayne Beglan or even Mr Nick Grundy himself is unfit to adjudicate despite their clear identification with opposing interests. On the contrary their years of experience in the area would make them ideal candidates.
4. I would very much like to read the Jon Holbrooke / Andrew Arden exhanges which J mentioned. Are they available anywhere on line or other than getting hold of back copies of Inside Housing?
@Michael – one of the (many) difficulties with your suggestion is that the employment tribunal and the LVT are different kids of animal. For one thing *all* ET disputes are very clearly between employees as against employers and their co-conspirators. There is very certainly a side (a fact represented by the two sets of waiting rooms ET’s have) and the tribunal has two wing members one each representing a side. Neither of them are likely to be lawyers and the chair/judge needs to be impartial for that reason.
By contrast, much of what the LVT does is declaratory (the s.27A application being a quintessential example). There really aren’t identifiable “sides”: for example two sets of tenants might be in opposition (a sort of “block war” scenario) or there might not be any landlord and tenant relationship involved (for example where there is an estate management scheme).
Further, the LVT needs (by its nature) to have at least one expert member and ideally more than one expert. The core of its duty is *valuation*. The vast majority of SHLA and HLPA members are not qualified valuers and very many do not have sufficiently broad knowledge or property to be safe as “experts” on a tribunal dealing primarily with leases and leasehold. I’ve seen enough RSL leases to be quite convinced I’d be very wary about letting RSL in-house lawyers draft one for me (present company I am sure excepted – which is why I said “wary”).
So there isn’t a neat: one wing member for each side and a lawyer chair in the middle to keep score structure. If you want that then HLPA and SHLA are irrelevant because they are lawyer organisations. One would want to seek input from organisations representing big landowners and private landlords as well as ones representing tenants – neither of which HLPA and SHLA represent.
Thanks Frances, that kicks my suggestion into touch.
William, the question then is:-
Would a barrister representing, say, a tenant in arrears (on application number 5) or a nuisance case against an allegedly noisy tenant, be happy for Nick Grundy to adudicate?
Would you, NL?
J?
Michael – I would be no more happy or unhappy than I might be in general on learning which DJ we were to be in front of. Would I have any issue with his hearing the case per se? No.
Michael – I agree with your take on HLPA. As middle class lawyers we are all open to such criticism but I think you are quite wrong to suggest that being involved in HLPA makes members unfit to adjudicate.
I really would have no problem with Nick Grundy sitting as a Judge on one of my cases. I expect he would be quite a lot more sympathetic than some of the Judges I have to deal with at the moment. I think that the day that lawyers start worrying about who the Judge is on their case is the day when we give up being lawyers.
@ William – I can’t find the Arden / Holbrooke exchanges online. They were in the letters pages of Inside Housing during summer 2007. Sorry I can’t be more specific
@ Michael – I honestly believe that lawyers, whatever their client base, have a strong professional respect for the rule of law and wouldn’t let their personal politics interfere with their decision making process. I don’t know Nick Grundy at a personal or professional level, but I’ve got no reason to think he’d be anything other than a fair and impartial tribunal.
Having schlepped accross South London just the other day for both tenant client and landlord client I’d have to say of the previous few comments “Come on guys!!!”
I struck lucky having as I did a ghastly racist tenant to evict at Wandsworth County Court and a hapless credit card victim to protect at Lambeth CC, but had it been the other way around the ASBO family would still have a roof over their heads and the indebted fool an SPO on c/r + much more than she could afford.
The culture of WCC is well known for expecting responsibility of tenants and for demanding of them full and exact compliance with the terms of their tenancies.
LCC, on the other hand, would be unlikely to evict even on application no 10 with arrears 2 or 3 times that of the original order – even if the tenant had in the meantime slashed the concierge’s face with a stanley knife.
Everybody knows the enormous variables to be expected from judges (and courts with embedded cultures) and, although I don’t know Mr Grundy either, I would do all I could to filibuster an adjournment if representing a defaulting tenant before him in the hope of another judge another day.
Judges are people too.
@Tobywun I know the feeling. Short of a revival of Dicey’s rule of law and the sticking of two fingers up at Dworkin, we are stuck with enormous levels of judicial discretion. Couple that with the fact that first tier appeals are not reported and have no precedential value leads to the inevitable retreat from a “common law” and the creation of local practice, which can become quite variable sometimes.
It is galling to turn up at some obscure court and be told by the district judge (with enormous confidence) – “Come now Mr Davey, you know we never order possession on the first hearing” or some such nonsense. It avails you not to try to point out that this is an entirely local practice. I may exaggerate a little, but not much.
I do more private landlord and tenant work than most of the NL team and one issue that comes up time and again is costs. Do the fixed costs rules apply if there is a contractual provision to the contrary? No, say the court of appeal, Yes, says Brentford County Court. Stephen Gerlis has expressed his irritation in print at the lack of guidance in the rules and takes the view that the court has little discretion. District Judge Allan explained to me that Brentford’s practice is not to order costs in circumstances where Central London would.
No criticism is intended of any of these judges – and in many ways its nice to know what they think – but it would be much better if there weren’t that variation at all. The Brentford local practice has the virtue (at least) of being consistent within a local court. Not really how law is supposed to work but better than anarchy.
The well known “prejudices” of county courts as to the making of possession orders and the like is also well known amongst advocates. It also gives a level of local predictability while really running contrary to the concept of the common law. What can we do about it? Not much I suspect, unless we throw all this on a tribunal service which would be like giving up poker to play the national lottery.
But it is important to understand that none of this really has anything to do with *bias* and *recusal*. Different courts have, in different ways, come to different conclusions about what the law means and how it should be worked out. “Reasonable” means very different things to different people all honestly trying to come to the right conclusion (as most of the judges are I believe).
The question of whether a judge should recuse themselves has to do with whether they would not be honestly trying to come to the right conclusion (or whether a fair minded observer would think so) rather than whether they have come to a view more favourable to one party than another judge has.
@Francis Davey: I was just about to reply to Tobywun, but your last couple of paragraphs sum up the point exactly. It isn’t whether one would be happy or not to be in front of some specific judge (and don’t get me started on Wandsworth) but rather whether one believes that so-and-so would be capable of giving the case a fair hearing. That was what I answered ‘yes’ to.
@ Francis – very well said. I concur!
@Francis – Would you be so kind as to link the Court of Appeal case you were referring to when you were talking about costs and contractual provisions.
It was very interesting to read your comments on differing practices at County Courts as I experience it a lot at my local Court. It’s mostly to the advantage of the tenants but it can still be a bit strange!
Kicking the umpire,on the pitch, during the test match seems a bit silly. Best to be done in the tunnel after, surely? Problem is the tunnel is stuffed with Gold. Stadium are only a 12th man “runner” who now have to protect the £33m yearly profits shared by some LBs and RSLs on these spurious TA service charges. Lot of money at stake here
It looks as if their Lordships have rather killed off the bias appeal. See Helow v Sec. of State [2008] UKHL 62, handed down yesterday.
http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/helow-1.htm