On legal aid and letters pages: bits from last week

Some bits and pieces from the last week that didn’t quite fit in elsewhere.

First – developments in the Legal Aid, Sentencing and Punishment of Offenders Bill.

At the committee stage a large number of amendments were tabled, both by the Government and by the opposition. The opposition amendments would have introduced a revised definition of domestic violence, in line with Yemshaw, and brought benefits and debt advice back within scope.

All the opposition amendments fell. The Government amendments make three changes, described by the MoJ as follows:

The first change disapplies the exclusions for trespass to land, trespass to the person, trespass to goods, damage to property and breach of a statutory duty for counterclaims in possession proceedings under paragraph 27 of Schedule 1.

The second change disapplies the exclusions for trespass to land, trespass to the person, trespass to goods, damage to property and breach of a statutory duty for unlawful eviction claims under paragraph 27 of Schedule 1. This provides additional heads of claim and also provides heads of claim that non-tenant lawful occupiers can use.

The third change is to disapply the exclusion for breach of a statutory duty from paragraph 29 of Schedule 1 (housing disrepair) so that funding can cover claims based on, for example, the Defective Premises Act 1972.

However, as the Legal Action Group blog points out, it does not appear that a claim for damages only for unlawful eviction/trespass to land/damage to property would be funded. This is not at all clear, but the parallel with the position on disrepair set out below would suggest this may be the case.

It also does not appear that a counterclaim for disrepair in a possession claim has been brought within scope – or at least the status of such a claim is unclear.

The position on disrepair remains unchanged. The MoJ’s current view on legal aid funding for disrepair claims is that funding will only be available for a claim for works. A damages component to the claim would be covered by the funding under the mixed cases rule, but only so long as the claim for works is extant.

If the landlord carries out the works required such that an existing claim becomes damages only, public funding will, in principle, cease to be available. There may be discretion under the Funding Code to continue funding where it is in the interests of the fund to do so (meaning costs recovery). The MoJ expects the client to recover costs on the works element of the claim even where not able to do so on the unresolved damages claim, because where the landlord has done the works, there should be no issue about liability (!!!).

If the claim for damages proceeds on a CFA, the statutory charge would apply if damages were recovered. The MoJ expects most cases to continue under a CFA.

Although the small concessions on trespass to land/person/goods are a step in the right direction, the position – particularly on counterclaims to possession, is far from clear and very far from satisfactory. The position on disrepair is so detached from practice as to be on another planet, with the laughable suggestion that carrying out works constitutes an effective admission of liability. But while on the one hand the MoJ is saying that disrepair damages claims are outside scope, a claim under the Defective premises Act is now in scope – as breach of statutory duty – and that surely is in part a claim for damages.

This stage of the bill looks like a seriously missed opportunity, overall.

And then there was the curious case of Nearly Legal’s appearance in the letters page of the London Evening Standard. On 6 September, the Standard ran a ‘squatting horror’ story in which a couple had bought a house but before they could move in, found it squatted by some 15 people. According to the story, the police had refused to help, saying there was no sign of a break in and it was a civil matter. Again according to the story, the couple had had to bring possession proceedings and it had taken a couple of weeks, but they were hoping to get an order the next day.

On the evening of  6 September, I was contacted by the letters editor of the Standard, asking to be put in contact with Francis Davey about that article (presumably because of Francis’ post here), so I passed it on.

francisstandardOn 7 September, on the letters page of the Standard, Francis’ comment duly appeared, politely pointing out that it looked like the couple were probably protected intended occupiers and that there was no need to go the possession order route or wait for weeks. Oh and that the police weren’t exactly right. It is, as one would expect from Francis, a thoroughly accurate account of the law as it stands. It also, politely, made the point that the problem appeared to be rather more a lack of information or understanding of the law all round (including the police), than a failing of the current law. Good on Francis (and an interesting insight into how the Standard letters page operates).

Meanwhile, on the front page of the same issue of the Standard was a further instalment of the ‘Squatting Horror’ story, with the Housing Minister Grant Shapps being quoted as saying that the story showed why the DCLG plans to criminalise squatting in a building needed to be speeded up.

Grant Shapps’ rationale for misrepresenting the existing law is clear. He has a particular agenda in pushing for the criminalisation of trespass to buildings and will happily embrace any story that might garner support, no matter how inaccurate.

Standard front page

But the misrepresentation of squatting and the law of trespass by newspapers has been widespread and something we have visited before – both Francis’ post and this one of mine. The Standard, The Mail and the Telegraph (Daily and Sunday) have been particular offenders, but far from alone.  Now that the consultation on the DCLG proposals to criminalise trespass is underway, the continued failure to adequately present the actual law (and continuing to present the DCLG proposals as being for the protection of homeowners), is a serious issue, distorting public understanding and increasing the kind of confusion that Francis raised in his letter.

By co-incidence, and from another (thoroughly respectable) source entirely, the idea was raised with me of an open joint letter by housing lawyers, stating the current law and making clear that much recent coverage of the issue has been inaccurate.

What do people think? I am under no illusions that such a letter would necessarily make a huge difference, where at least some of the coverage is clearly politically motivated, but it is also apparent that there is a large degree of confusion and misunderstanding that could be addressed. Can anyone who might be interested let me know – via contact(at)nearlylegal.co.uk or the form here – and the merits are open to discussion in the comments.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Disrepair, Housing law - All, Possession, Unlawful eviction and harassment and tagged .

15 Comments

  1. I emailed the Standard on Thursday (having missed Francis’ letter on the Wednesday) attempting to point the correct law out after another headline had me cursing as I made my way onto the train home.

    Tbh, the fact that the Standard has printed Francis’ letter and a few days before had a box setting out (reasonably accurately) the law (according to govt.), I don’t think it will make a huge amount of difference until a politician or a senior lawyers calls them to account and they face looking stupid.

    • S, you may well be right. Certainly, some papers have an agenda and aren’t concerned about accuracy. Nevertheless, there is a high degree of confusion about. In both cases, I don’t see why it should go unchallenged or uncorrected. And we’ll see about the senior lawyers ;-)

  2. I think you should do it, NL. Right is right, even if everyone is against it. Wrong is wrong even if… Etc

    Reading any kind of (professional) common sense these days is a tonic

  3. I think the letter is an excellent idea and you should do it.

    However bearing in mind the general state of ignorance of almost everyone about the finer points of law, it should be worded very clearly and preferably in words of one syllable.

    It should have as many reputable lawyers named as possible – the more who support it, the less people will be able to ignore it.

  4. If a letter was to be done. Perhaps you could publish it on the website before hand so people can add their signitures by way of the comment section.

    Might make a bit of a splash for a paper if there is enough lawyers signing.

    • Chris – Yes I was thinking along those lines. Obviously can’t ask people to sign up for something they haven’t seen and approved.

      Watch this space…

  5. Couldn’t the “damages only” disallowance on funding for illegal eviction be circumvented by either pushing forward for a final injunction for reinstatement/return of goods (if any part of the interim injunction’s not complied with, and in addition to committal proceedings because sending the landlord down’s not going to get them back into the property) or, if the premises are re-let, a possession order against the new tenant under Love & Lugg -v- Herrity? Isn’t that a sufficient non-monetary remedy to justify funding?

    Of course, if the landlord’s so utterly psychotic that the tenant does not want back in under any circumstances, then we may be stuck…

    …however. On Friday I ran into a barrister acquaintance of mine in Court and he was on an illegal eviction case for the tenant which was funded by way of a Sibthorpe-style CFA. Isn’t this a potential way forward if legal aid does go entirely for illegal eviction? Of course, one would have to investigate the landlord’s circumstances thoroughly before issuing proceedings, and possibly even push for costs on the interim injunction hearings and enforce those costs while the main proceedings for damages are going on so that a charging order can be bunged in early on, thus blocking the landlord from dissipation of assets.

    • XF – it is not that unusual for illegally evicted tenants to be less than keen on returning. And a final injunction for re-instatement would only make sense where there has been an interim injunction, so not a damages only claim.

      CFAs would be technically possible, but unlikely in many cases, precisely because of the difficulty in securing costs awards – no interim injunctions in such cases, remember. Tracing assets is a difficult process with the dodgier kind of landlord, and then even if there is a property to charge, going all the way to an order for sale can take years. Nobody wants their costs at risk and tied up like that. So, high risk cases which nobody would do under a CFA regularly.

    • I appreciate that, but if goods aren’t delivered up, a final injunction for delivery up perhaps?

    • Just that definition of domestic violence in the Bill should be the same as that in the ACPO guidance (meaning the same as Yemshaw), rather than the limited version proposed. The amendment didn’t make it in, which looks like a collision course with the Courts at some stage.

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