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Unlawful eviction and harassment
08/05/2022

Notes and gloats.

It is being reported that reform of the private rented sector, including the abolition of section 21, will be in the next Queen’s Speech. It may not be a renters reform bill but part of a larger ‘levelling up’ bill, which does make one wonder about its prospects of actually being brought forward in this parliamentary session, and then succeeding. But it may be that major change is finally on the cards.

The Building Safety Act received royal assent on 27 April 2022, but there is still no published version of the Act as passed. This is frustrating, given that some significant sections are supposed to come into force two months after royal assent. If anyone relevant is reading, please sort this out!

And lastly, the well known private landlord, discriminator and harasser, Fergus Wilson lost in a claim for an injunction against him by Ashford Borough Council to stop him harassing its officers and councillors last year, but he still found a way to make things worse for himself. (Even worse than breaching the interim injunction after the trial hearing, which he also did.)

After the judgment, counsel were asked to agree the form of the order, including the costs provisions, as is usual. Submissions on costs were requested by 29 September 2021. (The hearing was in February 2021, judgment handed down 22 September).

Mr Wilson’s counsel from the trial hearing, who had been instructed on a direct access basis, duly went on to agree the terms of a final order, including costs, with a payment on account of £125,000, and indemnity costs for the period after Ashford’s Part 36 offer (which it had beaten).

But, as a subsequent judgment makes clear, matters did not end there. Mr Wilson then told his barrister he wasn’t instructed and wrote to the court and Ashford, saying:

“I would like the issue of costs dealt with by the Judge at the Royal Courts of Justice in person.”

“I would point out that Mr Deakin ceased to be my Barrister on 30th April 2021 when he walked out on Stour Chambers. All outstanding files etc were collected from Stour Chambers some time later. The fees were returned on 11th June 2021. Hence when you say ‘Your Barrister’ that is not actually the case.
I do dispute all seven points of the costs Order.
I do not believe there should be any Order for costs and I wish the opportunity to address the Judge in Person at the High Court. This matter could and should have been dealt with by an Application to the County Court at a cost of under £2,000.
…. ….
I turn to your second page where you say you do not accept that I am able to withdraw the agreement given by my barrister! Well, he was not my barrister after 30th April, 2021. He was not instructed! I think he should simply have said ‘I am no longer instructed.’ “

Perhaps unsurprisingly for anyone with any acquaintance with Mr Wilson’s approach to litigation, which is refreshingly free of attention to facts or law, things did not go well for him.

The presumption was that a brief for trial included instruction on consequential matters (corrections of draft judgment, drafting orders etc.) Mr Wilson had failed to present any evidence at all that his instructions to his counsel were limited to the trial hearing alone, or that he had subsequently terminated instructions or instructed his barrister not to enter discussions on costs etc.. That counsel had left his former chambers and was then an employed barrister elsewhere made no difference – the instruction was of the barrister, not the chambers. The general position that counsel had authority to bind the client applied. So, the parties were bound by the agreed order.

But in any event, on the costs ordered, the claimant had succeeded wholly. The claimant had at least matched their own part 36 offer for undertakings. Wilson had done nothing to try to settle the claim and his conduct of it, despite having access to legal advice, had already resulted in two indemnity costs orders being made against him, which he hadn’t paid.

As to Wilson’s complaints on the amount of costs, it was an unusual and significant step for a council to bring an harassment claim against a member of public, so the High Court and leading counsel was appropriate, and the council had taken every reasonable step to avoid the litigation. It was not the case, as Wilson alleged that the proceedings were “motivated by spite” or “vexatious“. They were perfectly proper.

On the part 36, and indemnity costs, the council had obtained an order ‘at least as advantageous’ as their offer so the indemnity costs, plus 10% on those costs, and 10% interest rate applied, as it was not unjust to make such an order.

Payment on account of costs of £125,000 ordered. No stay pending appeal, as no realistic prospects of an appeal succeeding.

 

 

 

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.

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