The Greeks have a word for it, and if they don’t the Germans can probably knock one together. On the menu for today are hubris, nemesis, Schadenfreude and harmatia.
Harmatia
Our friends ‘Charles Henry’, the not-solicitors, appear to be determined to destroy the operation of civil law in its entirety through their own inadequacies. Leaving aside, for the moment, the question of whether this set-up should be carrying out litigation at all, they have managed to mess up conducting litigation for all the rest of us.
In M A Lloyd & Sons Ltd (t/a KPM Marine) v PPC International Ltd (t/a Professional Powercraft) [2014] EWHC 41 (QB), ‘Charles Henry’, for the Claimant, had failed to file a witness statement by the date ordered, or indeed at all, (though a ‘curious document’ was served). Charles Henry then sought (by turning up late) to vary directions to give more time. I think it is fair to say that Turner J was annoyed. He reached for a big stick and found that because the CPR provided for a sanction for not serving witness statements in time, at 32.10, CPR 3.8(3) applied, meaning that the date for exchange of witness statements could not be extended by agreement between the parties. He then applied Mitchell on being tough.
So, witness statements, expert reports, questions to experts, disclosure. All these things can no longer have the dates for exchange varied by the parties agreeing. One must apply to the court, even retrospectively. I hope the courts are ready for the deluge. And thank you Charles Henry, thank you very much indeed.
Schadenfreude
‘Guest post’ spammers. Oh, how I loathe and despise them and their ‘clients’. So it is with a wholly undisguised look of glee that I discovered that Irwin Mitchell have apparently suffered a heavy penalty from Google, so that their site is dropping out of the top search results for key words. Google imposes this penalty when it considers that people have been trying to game the system, through dodgy SEO practices, including ‘guest posts’. Irwin Mitchell have been doing that for years. My revenge may be slow, but it is remorseless…
Hubris
Sandwell Borough Council are facing a Judicial Review. Sandwell (and they are far from alone in this) having been taking Disability Living Allowance into account when assessing people for Discretionary Housing Payments for rent shortfalls. Given the very clear rejection by the Court of Appeal of the idea that DLA should be considered for housing costs at para 45 of Burnip, one has to suspect Sandwell will be in difficulties. Ironically, in this context, the firm acting for the claimant is… Irwin Mitchell.
The MoJ is also facing difficulties in the Admin Court. The Public Law Project have issued a judicial review of the proposed residence test for legal aid eligibility. They have scored a early hat trick in being granted permission, an expedited hearing, and a protective costs order. The proposed introduction of the residence test has been put back from March to May.
Nemisis
While on judicial reviews, a round of applause for Joanna Trafford of North Solicitors.
Trafford v Blackpool Borough Council [2014] EWHC 85 (Admin)
Ms Trafford set up her personal injury practice in Blackpool in 2008. She took offices in a building called ‘The Enterprise Centre’ owned by Blackpool Council and set up to encourage start ups and developing businesses. In 2010 she took a further lease of larger offices in the centre. The lease was for 3 years and was contracted out of the 1954 Act. North Solicitors brought a number of tripping claims against the Council (wholly properly). In June 2013, Ms Trafford was told that she would not be offered a new lease. When she asked why, the Council replied:
“The council reserves the right not to renew a lease for any one of its properties and chooses to do so in this instance.
You requested a reason for the decision. Put simply, the council’s corporate insurance policy is reaching unprecedented levels. In broad terms the council’s view is that the practice of North Solicitors, and other similar personal injury lawyers, runs contrary to the interests of the council. We cannot dictate the nature of the work that you do, but we are in a position to review who resides in our tenanted properties.”
And when pushed further, added:
“The nature of your business is wholly contrary to the stated aims and objectives of Blackpool Council. I support and uphold the views stated by our officers”.
In fact there had been a meeting of Council officers in November 2012, with a decision made in these terms:
“8. It had been brought to the attention of the CAMG that one of the existing tenants of the Enterprise Centre, North Solicitors, had recently brought a substantial number of claims against the Council.
9. The majority of the claims brought were for tripping and associated highway claims. Given the sudden increase in volume, the number of claims overall and the nature of the claims, it was inferred that these were “claim farmed” claims.
10. High volume claims such as these are a considerable drain on the Council and divert resources from the Council’s core functions of providing services and infrastructure for the benefit of the residents of the Borough. As such the Council considers that such claims are contrary to its interests.
11. The Council is well aware that it cannot prevent any person from carrying on business in any manner they see fit, provided that it is lawful. The Council can however choose who it enters into commercial relationships with, be it as landlord and tenant or otherwise.
12. The question of the claimant’s tenancy of unit 30 was discussed by the CAMG and in all the circumstances a decision was taken to end the Council’s relationship with the claimant as soon as possible.”
Ms Trafford brought a JR. Blackpool Council argued that
i) it was out of time
ii) It was a purely private law contract matter, not amenable to JR.
On i) the Admin court happily decided that if extra time was needed, it would extend time for the claim to be brought.
On ii) the Court reaches some interesting general conclusions about when a contractual lease issue with a council might amendable to judicial review.
(1) In a case such as the present, involving a challenge to a decision of a public body in relation to a contract, it is necessary to consider:
(a) by reference to the contract in question, to the relevant statutory power, to the statutory framework (if relevant), and to all other relevant matters, whether or not, and if so to what extent, the defendant is exercising a public function in making the decision complained of;
(b) whether, and if so to what extent, the grounds of challenge involve genuine and substantial public law challenges to the decision complained of, or whether, and if so to what extent, they are in reality private law challenges to decisions made under and by reference to the terms of the relevant contract.(2) In a case involving a challenge to a decision of a public body acting under a statutory power but in relation to a contract and in the absence of a substantial public function element, a claimant will nonetheless normally be entitled to raise genuine and substantial challenges based on fraud, corruption, bad faith, and improper motive (in the sense identified by De Smith of the knowing pursuit of an improper purpose).
(3) The extent to which a claimant will be entitled to raise genuine and substantial public law challenges beyond those limited classes will depend on a careful analysis of all of the relevant circumstances so as to see whether or not there is a relevant and sufficient nexus between the decision in relation to the contract which is challenged and the grounds complained of
In this case, there was a clear arguable case that the decision was taken for an improper and unauthorised purpose, of penalising and victimising the Claimant. Also that the decision was irrational, as it would not achieve a reduction in claims, and would result in loss of rent. It was simply to punish the Claimant. And also that the decision was procedurally unfair as it bore no reference to the published criteria for tenancy.
So, with time extended and amenability established, the outcome of the claim was indeed that the Council had acted with an improper purpose, and that the decision was made in a procedurally unfair manner, denying the Claimant the ability to make representations. The decision was quashed.
Astonishing actions by Blackpool Council. There was no economic rationale for the decision, and it would not stop valid PI claims against it. The only basis seems to have been a determination to make life difficult for Ms Trafford. These are the actions of a sulking 7 year old, not a public authority.