Monday, 23 September 2019

Thomas Cook: section 75 claims

Sorry, if you are a Thomas Cook customer-victim. If you have lost out or are due to lose out, you may be able to take advantage of ATOL cover (if a package holiday),  travel insurance or 'charge card' protection where you used a debit card. Where that doesn't help or where it helps but does not cover all your losses and you paid by credit card rather than debit card, section section 75 of the Consumer Credit Act 1974 could come to your aid. For how this works, see http://www.breakinglaw.co.uk/2018/12/for-bbc-radio-5-live-listeners.html

If the credit card provider is liable, this liability would extend to the payment of compensation for  consequential losses which could include  any extra you have to pay out on rebooking another but comparable holiday ; compensation for a spoilt holiday; and out of pocket expenses.

Good luck.

Wednesday, 11 September 2019

Very Latest Civil Procedural Rules

Two more updates to the Civil Procedure Rules 1998 (applying to England and Wales) have been issued. This will save you having to read them. Switch on your yawnometer if you do. It could peak at 12 million before sending you completely into deep sleep. 

Update 110 amends Practice Direction 51O which is about the electronic working pilot scheme allowing for online commencement of proceedings and lodging documents. The scheme was extended  to the Queen's Bench Division of the High Court on 01 January 2019 and  to out of London Business and Property Court centres on 25 February 2019. As from 07 October 2019 it will apply to proceedings in the Senior Courts Costs Office started on or after that date including requests for detailed assessment and applications issued on or after that date. Lawyers and litigants in person can take advantage. As from 20 January 2020 lawyers must use the scheme. 

Update 111 which came into force last Monday o9 September 2019 (at 11am) will be of interest to litigants in person. Honest. that's because it only relates to you. It concerns a pilot scheme for online civil claims by litigants in person for specified claims for money which do not exceed £10,00 and which, if contested, will almost always be dealt with as 'small claims'. New features have been introduced to the scheme for testing. These include parties being able to complete online the directions questionnaire - this is for contested cases and solicits information to assist the court in deciding when and where to list the final hearing and what procedural directions to give for it. And more cases which are suitable will be referred for mediation under the free small claims mediation scheme. Up until now , they have only been referred where the parties agreed. In future they will be referred where the parties say nothing about wanting mediation: they will be presumed to agree to it. But mediation is still not made compulsory. Silly not to take advantage of it. The scheme is extended to 30 November 2021.

There is another pilot scheme running for lawyers only. It is the swingingly called online civil money claims pilot and it offers a digital service for specified and unspecified claims on an invitation-only basis. The scheme is also extended to  30 November 2021.

Told you!

Tuesday, 10 September 2019

Divorce Reform Blow

The shutting down of Parliament means that the Divorce, Dissolution and Separation Bill which was to introduce 'no fault' divorce (see http://www.breakinglaw.co.uk/search/label/divorce) has been lost. It had passed two readings and its committee stage. It will have to restart its Parliamentary passage if the Government so decrees. 

Friday, 6 September 2019

Service Charge Challenges: Escape from Landlord's costs

That's enough time off. Put down the ice cream cones and get on with some serious litigation. 

Although some of my best friends are residential landlords (to be honest, I am anti-social), they and their managing agents do know how to load the service charge bill, don't they? Unreasonably incurred bills, sub-standard services and work and services which are outside the scope of what, according to the lease, the tenant should be paying for, can all be challenged. The usual place to mount a challenge is the tribunal: to be precise, the First-Tier Tribunal Property Chamber (Residential Property). I know the name alone is enough to put you off but don't be deterred, my friends. You will find some sexy decisions on challenges that have been made in this blog at http://www.breakinglaw.co.uk/search/label/service%20charges

Now, one of the problems with a challenge is it will involve the landlord in expense. The landlord might well bring in lawyers. And, whether you win or lose, the lease may say that the landlord can add these challenge expenses to a future service charge bill. This would mean you and the other tenants in the block eventually having to contribute towards them. 

There's a possible escape. It is an application (under section 20C of the Landlord and Tenant Act 1985) for an order which prohibits the landlord from adding part if not the whole of its expenses to the service charge. The tribunal will grant such an application if it is satisfied that, in the circumstances it is 'just and equitable' to do so. It would be madness for  the challenger not to apply for such an order. The application should be made on the tribunal form called Leasehold 7.   

What an appeal judgement* has established is that a section 20C order can only be made in favour of the challenger and anyone else who the challenger specifies in the form they seek to benefit from an order. The application form specifically asks for details of other tenants who would wish to avoid being stung for challenge expenses, even though they are not parties to those proceedings. The judgment also makes clear that * there is no time limit for a section 20C application being made: * co-tenants who might be effected can make their own application in the same proceedings or subsequently; and * co-tenants can apply for a section 20C order even though the tenant making the challenge was refused a section 20C order.

Good luck, if you deserve it. And, remember, there's a load on landlord and tenant warfare and a thousand other legal topics in Breaking Law.

*The case is Plantation Wharf Management Ltd v Blain Alden Fairman and others [2019] UKUT 236 (LC) 

Saturday, 10 August 2019

Flight Delay Claims:Beating Extraordinary Circumstances

'Go away and take your claim under the European Regulation No261/2004 for flight delay compensation with you. It was an extraordinary circumstance so you are stuffed.' That's what so may airlines will say when sending you packing. If they can prove the delay was due to extraordinary circumstances then they reckon they are off the hook. And they may be right.

See http://www.breakinglaw.co.uk/search/label/flight%20delay%20claims for a bit more on extraordinary circumstances.

But, as a decision just out of the European Court of Justice shows, they may be wrong! In Germanwings GmbH v Pauels (case C-501/17), it was a screw in one of the plane's tyres what did it which meant the tyre had to be changed. This caused a 3hour 28 minutes delay in the claimant's flight from Dublin to Dusseldorf. 

Events can be classified as extraordinary circumstances if, by their very nature or origin, they were not inherent in the normal exercise of the airline's activity and they were outside their actual control.  Where the delay resulted from impact with a screw on the runway that could amount to what the law regards as extraordinary circumstances.

So far, so good for the outline. But the European Court went on to declare that in the screw -tyre situation here, the airline would only escape liability if it could prove it had adopted measures appropriate to that situation. That would involve deploying all its resources in terms of staff and equipment and the financial means at its disposal to avoid the cancellation or long delay of the flight. It would not be expected, however, to make intolerable sacrifices in the light of its capacities. 

This was a preliminary ruling on the law and the claim must now go on and be determined in the Cologne Court where it started on the basis of what the European Court has ruled. What the ruling establishes is that the fact extraordinary circumstances can be proved by the airline does not mean the claim is over for the delayed passenger.

Monday, 29 July 2019

The Very Very Latest Court Procedure Rule Changes

It could be said that if you take a deep interest in the Civil Procedure Rules 1998 (CPR), you are some sort of judicial pervert. Nonsense. These rules govern how you go about pursuing or defending civil court proceedings in England and Wales and how the courts will deal with them.  They are as dry as old boots but, whether you be a lawyer or a litigant in person, you need to know what they say or you could find that your case is killed off by a judge because you have failed to follow them. You'll get a pretty good idea of what they say from reading my book Breaking Law (this guy will write anything to collect a few bob in royalties) and the rules, like everything in the book, are updated here FREE!

The rules themselves and the practice directions which supplement them are updated at least twice a year. They've just issued update 109. Yeh, really cool. Which takes me to this post. A warning. You could fall asleep before you finish the post. Perhaps, get someone to pinch your toes every five seconds. And, if you want to fall asleep before you begin, you can take a look at the Civil Procedure (Amendment No 3) Rules 2019 (SI 2019/1118) on which part of the update is based.

Everything summarised comes into force on 01 October 2019 bar one thing. Here goes with the best bits. 

Costs budgeting  Practice Direction 3E  is clarified to make it clear that the costs of and including the first costs management conference will be incurred costs so that they will not be open to adjustment by the court at the budgeting stage.
Reviewing the situation  The pre-action protocol for judicial review is amended - as from 17 September 2019 - to specify to where the letter before claim should be sent when the Treasury Solicitor acts for the intended defendant and has already been involved or where a decision of HM Revenue & Customs is involved.
Small but beautiful  A hearing of a small claim (that usually means a claim that has been valued at £10,000 or less) will generally take place in public at a county court. That means that your arch enemies, next door neighbour, local newspaper reporter and former Latin teacher can all turn up and enjoy the proceedings. In practice, it is very rare indeed for anyone to be present apart from the judge, the parties, any legal representatives or McKenzie Friends and the witnesses, so don't worry. But just occasionally someone else might attend. Practice Direction 27 has been amended to clarify that the fact the parties agree the hearing should be in private will not of itself be a sufficient ground for the judge to direct a private hearing. The only situations in which a private hearing can be ordered are set out in rule 39.2 of the CPR. They include that publicity would defeat the object of the proceedings or that the hearing involves confidential information, including information relating to personal financial matters, and publicity would damage that confidentiality.
Aha, Aarhus  A claim under the Aarhus Convention is an environmental judicial review or statutory review and the Convention was devised to see that the public has access to proceedings which challenge public authorities over environmental issues and that these proceedings are not prohibitively expensive. The latest update tweaks the CPR at rule 45.41(2)(a). This will bring statutory reviews relating to national environmental law within the environmental cost protection regime.
Media Mad Unless agreed by the parties in writing, the county court lacks jurisdiction to deal with claims for libel or slander (although it can deal with claims for malicious false hood - see Breaking Law  for more info on them). That’s s15 of the County Courts Act 1984 and  Practice Direction 7A. A new para 2.9A provides that, subject to this, any media and communications claim, including business within the media and communications list, can be started in the county court or High Court and the £1000,000 threshold to claim in the High Court will no longer apply. But to the High Court the claimant must go if they believe that a High Court judge is needed on account of value and/or complexity and /or public importance. Also, the pre-action protocol for defamation cases is replaced by one for media and communication cases.
What a Business A new Practice Direction, swingingly entitled 57AA and devoted to he Business and Property Courts, will only come into force if we Brexit without a deal - along with a million other pieces of legislation. Help!!!!

That's yer lot

Friday, 26 July 2019

MasterCard: Supreme Court Appeal Permission Result

Sorry but put the champers back on ice and stick to gripe water for the time being. In the Walter Merricks collective claim on behalf of virtually all of us against MasterCard - take a look at http://www.breakinglaw.co.uk/search/label/MasterCard%20claim - the Supreme Court has just given MasterCard permission to appeal to it against the Court of Appeal's ruling that the collective claim could continue. I'll be back soon with news of when the appeal is likely to be heard.