Wednesday, 28 September 2016

ENSURE BEFORE YOU INSURE

Do you have any legal redress if you open your insurance renewal quote, pass out with shock at the amount and, as  result, miss the bus to your disciplinary interview and are fired? Possibly against the former employer but not against the insurer!

My property and contents quote from Tesco Bank was for £751. I didn't pass out, though it did ruin my day and I was unfit to make any blog posts, which at least gave you a break. 

I have just been in touch with Tesco, opting for the 'thinking of leaving' extension and got a live human being at the other end. They brought the quote down to £245 without any threats which must surely be one of the biggest percentage reductions known to insured man since quotes were invented. The broker thought that the computer must have had a bad day when originally calculating how much to ask for. Suggest you check your quote carefully. The computer was unwell on 2 September 2016.

Tuesday, 27 September 2016

DEAR BLOGEE

A leading firm of London solicitors has banned the use of Dear Sirs from their communications.  Freshfields Bruckhaus Deringer (think of the cost of the ink if you drop them a manuscript line and address them fully though their clients tend to have more than a bob or two) are replacing the salutation with Dear Sir or Madam in Britain and Dear Ladies and Gentlemen in America. 

Freshfields (I can't afford the ink) should take a word out of the vocabulary of a senior civil servant at the Ministry of Justice who have just sent me a generic message addressed Dear Recipient. Even I cannot take any exception to that.

Stand by for another London firm playing catch up with a new code for signing off communications. Yours truly is obviously out of the question, especially when it tails a protocol letter of claim. When I was an articled clerk we used to finish off to the court with We are, Your obedient servants. Perhaps that could make a come back. Certainly, clients would like it.

Tara.

Monday, 26 September 2016

THE WILL TO LITIGATE

A big increase is reported today in children over 18 challenging the will of a parent.  It's not only a child (young, old, fat or thin) who may be able to ask for something or more under the Inheritance (Provision for Family and Dependants) Act 1975 but a number of others. They include a spouse or partner, a former spouse or partner or anyone who was being wholly or partly supported by the deceased immediately before death. They can also go to court if there was no will and so the intestacy laws kick in but they reckon they operate unfairly against them.

Court proceedings have to be started within six months of probate (in the case of  a will) or letters of administration (in the case of no will). The court has the power to extend this time limit.

Are you dissatisfied or do you want to try and protect against a successful challenge to your will once you have passed on? Take a look at Breaking Law, chapter 32.

ALL CHANGE FOR APPEALS

Routes of appeal - the court to which you can challenge a decision you hate - are changing on 3 October 2016 in family, insolvency and civil cases. The intention is that, as far as possible, an appeal from a judge should be dealt with by a judge on the next level up. Less work for the Court of Appeal (where you get three judges on the job) and, so they hope and pray, less waiting time for an appeal to be heard. 

This is what is happening on the civil front in appeals from county court decisions and if you don't believe me, have a gander at the Access to Justice Act 1999 (Destination of Appeals) Order 2016 SI 2016/917. No, I thought you might not!

Generally, an appeal against a decision of a district judge in the county court will continue to go to a circuit judge in the county court. An appeal against a decision of a circuit judge or recorder in the county court will  go to a High Court judge and it will make no difference whether the decision under challenge is what is called an interim or final decision. 

District judges in the county court often deal with the more substantial multi-track cases. Instead of a challenge against their final decision in such a situation, exceptionally going to the Court of Appeal, in future it will go to a circuit judge. 

Big caveat. If the decision you hate was actually made on the hearing of an appeal - you were appealing from a district judge to a circuit judge - and there is to be  further appeal then that further appeal will lie to the Court of Appeal. So that's pretty straightforward then!

You won't have an automatic right to appeal in the vast majority of cases. You will have to obtain permission to appeal from the judge who made the decision or from a judge to whom the appeal would go. No walkover.

The changes do not affect appeals where notice of appeal or an application for permission to appeal has been lodged with the court before 3 October 2016.

Wednesday, 21 September 2016

THE LiP FRIGHTENERS

Losing a civil case can be expensive not only when the winner had a lawyer throughout but when they were a litigant in person. Yes, the litigant in person can charge up £19 an hour for their time on the case (more if they actually lost more) plus expenses which may include taking legal advice along the way and even having an advocate at court for one or more of the hearings.  That's why it may be a good idea at an early stage to warn smug lawyers on the other side of what your bill might come to as a litigant in person if you win and that you will be asking the other party to settle it! Different rules apply to small claims. There's more in Breaking Law at chapter 26.

In the more substantial cases which are going ahead in court on what is called the multi-track (they usually involve claims for more than £25,000, claims where the trial is likely to last more than one day or claims which are very complex), the parties who have lawyers on the record as acting for them have to prepare a costs budget which sets out how much they have spent and how much they reckon they need to spend on the case in the future. The budget must be agreed by the other parties or approved by the court which will go on to manage (poke its nose into) what is happening costswise as the case progresses. 

But, on the face of it, the court rules do not require litigants in person to come up with this costs budget though they will see and may object to the budget of the other parties with lawyers. However,  a High Court judge has just decided that the court could order a litigant in person to come up with their advance budget - and did so. In addition to what the claimant in the multi-track case had already spent, his future estimated costs were just over £315,000. The judge ruled that they could include the fees of a QC who the claimant would use by instructing him directly rather than through a solicitor and fees for other legal advice and help.


Thursday, 15 September 2016

REMEDYING A FINANCIAL REMEDY

Whether or not you consented to it, you may feel aggrieved by what was in the financial remedies order made by the court following the breakdown of your marriage or civil partnership.  If you are aggrieved because you were the victim of fraud or a failure by the other side to make a full disclosure of their circumstances or there was a mistake, you could ask the court which made the order to quash it and rehear the case. Breaking Law explains all this (at pages 497/8). 

New court rules are coming into force on 3 October 2016 and confirm the challenge route to be followed as Breaking Law suggests and sets out the procedure. You won't have to follow the appeal route for which permission is required. You will be able to apply to the court which made the order to quash it and to rehear and the usual rule that each side pays their own costs in financial remedy cases will not apply. The court could order the other side to pay your costs if you succeed in getting the order quashed.

Wednesday, 14 September 2016

NO STOPPING

I've been put in my place. I thought I had done well to make it to district judge with a background of five 'O' levels and a failure in maths. Mr Justice Hickinbottom whose elevation from the High Court to the Court of Appeal was announced yesterday, got his feet onto the judicial ladder as a parking adjudicator. 

Tuesday, 13 September 2016

APPEALING

In most family cases, appeals from circuit judges and recorders will be going to the High Court instead of the Court of Appeal as from 3 October 2016. The changes are made by the swingingly entitled Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016 SI 2016/891. This will not affect appeals if notice or appeal was filed with the court before that date. So one judge on appeal instead of three (which many appellants will dislike) and faster and may be quicker and cheaper. 

There are some exceptions to the change. The main ones are appeals from decisions made on an appeal to the family court (so second appeals), in certain public law cases including care, supervision and emergency adoption proceedings and in adoption proceedings. They will continue to go to the Court of Appeal.

MAIL DRIVES IN NAIL

The Daily Mail splashed yesterday on the system of civil court default judgments. "Families are being financially crippled by county court judgments they knew nothing about," they revealed. You will find out in Breaking Law how unsatisfied judgments come to be registered and what you can do about a judgment registered against you. 

And here are some facts on how you can apply for a judgment to be set aside when you say you knew nothing about the proceedings. If the judgment is set aside, the registration of it will be cancelled.

1 You apply to the court which entered the judgment for the set aside. Unless the claimant consents, that will cost you a fee of £255. If you are on state benefits or other low income, you may be able to get the fee waived and should it transpire that the claimant has procedurally slipped up and that the judgment should never have been entered - it was an irregular judgment - then the claimant may well be ordered to repay to you any fee you have paid out.

2 Where the court papers never reached you because you had moved on from the address to which they were sent, that may- not definitely-  mean that the judgment was irregular. If it was irregular, the court MUST set it aside and this is so even though you failed to apply promptly for the set aside. It will have been irregular if you had given the claimant your new address and they ignored it. And it will have been irregular too if the claimant otherwise had reason to believe that the address was no longer your place of residence or business and failed to take reasonable steps to find out where you were.

3 But even if the judgment was regular, the court has a discretion to set aside. It will need to be satisfied that you have a real prospect of successfully defending the claim if the judgment is set aside because you don't owe the money or you owe less than the judgment figure. That's where promptness comes in. The court may throw out your application if you did not make it promptly after finding out about the judgment. How long do you have? The period is not cast in stone. Some judges are more relaxed that others about how quickly you should have responded. You may have some explaining to do if you waited any longer than say a fortnight. However, as important as promptness may be, the court can still set aside where you have dragged your feet. The stronger your defence, the more inclined the judge may be to set the judgment aside.

THE CAKE MADE IT



Here it is in all its chocolate glory, as promised last Thursday. Waitrose executed its new instructions to the sugary letter and staff executed the cake's rapid consumption, or so I am told. I have not yet established whether former judicial colleagues got their teeth into a slice between claims for damages and financial remedy applications. I could let you know when my enquiries are complete but I fancy it would be better for me to (cake) bin this story now.

Friday, 9 September 2016

No such thing as a free book?

If you cannot yet bear to part with money for the book then Money Saving Expert are giving away 40 copies on their forum.

All you have to do is sign in and reply to the post with the choice phrase “Don’t Break the Law” and do that before 16th September.

You can perform that simple task here

Of course, if you don't win a freebie, you can console yourself by actually buying the book to help with the author’s retirement funds.

Thursday, 8 September 2016

MORE CAKE

Tomorrow is a big day in the matter of the cake. That's the cake I told you about on 29 July for my retirement lunch at court which I was not attending in case anyone made a speech. It was supplied by Waitrose and iced by them with a Good Bye instead of a Goodbye as instructed. As I reported last time, Waitrose agreed to refund the price.

But after my last report, I got thinking. My guests should have had  a replacement cake for the one they scoffed with a new inscription. So what I settled on was a gift card which I could use to order a fresh cake with any inscription so long as it did not contain expletives. That's what they said, really! I duly attended at a Waitrose branch, typed in the inscription on their computer and paid with the card. Twenty five quid! 

The new inscription should be Hello sorry re the Good Bye (I was limited to 25 characters and spaces). And that's where tomorrow comes in. The cake will kindly be collected by someone from the court from the nearest Waitrose branch and inspected and consumed at lunch. Of course, I shall be physically absent as usual but there in spirit.

I hope to be in a position to report to you next week on whether the inscription was in accordance with latest instructions. If you can wait!

Wednesday, 7 September 2016

BEEP BLIP?

Joshua Rozenberg QC, the former BBC legal correspondent and eminent and prolific legal correspondent, likes Breaking Law. Hurrah! He says it is entertaining and useful. But hold on. He thinks he has spotted an error on the first page. Well, if you're  going to make a mistake in a book, do it nice and early and then it will be forgotten about by the time you reach the end, I reckon.

But have I erred? On the first page, I recount my use of an old button A and button B telephone box in Hampshire when I rang the Law Society long distance to enquire whether I could scrape into the law with just five GCE 'O' levels, the tops of six Weetabix packets but limited small change. I claim that I encountered bleeping every couple of seconds when my money ran out.  Mr Rozenberg contends that, at least in London, these old black boxes did not emit a beep to tell you to add money - only the newer grey STD ones did so.

Now, I could have sworn that I was beeped or, if you prefer it, pipped. I clearly cannot be a judge in my own cause on this one. I am considering proceedings for a declaration.

Must fly. Someone on the line.

GETTING RID OF THE JUDGE

You can't pick the judge you want to try your case. But can you get rid of them on the basis that they are biased against you? It's notoriously difficult to show that a judge is actually biased and few people try that one. The more common route to getting the judge to stand down and hand over to another judge is to say that there is an appearance of bias: that it stinks a bit and that a fair-minded and informed observer would reckon there was a real danger or possibility of bias.

The mere fact that the judge has previously ruled against you before or been critical of you is unlikely to be enough to warrant them standing down. It's a question of degree. If in the previous case they had decided that anyone with the intelligence of a flea would have realised you were an inveterate liar and had never said anything truthful apart from giving the correct number on your Lottery ticket when claiming £20m, that might be sufficient. Similarly, if the judge was premature in indicating to you he had decided you did have a hope in hell of winning the case, that also would probably be enough.

In a case just before the High Court the judge had decided against the claimants on two sets of issues because he regarded their evidence as unreliable. But there were some more issues to be dealt with. Fearing that the third set of issues would go the same way as the first and second, the claimants asked the judge to step aside. He refused and so the claimants appealed. They failed. There was nothing to indicate he had closed his mind to what the claimants wanted to say on the outstanding issues and there was no appearance of bias.

Before you try and replace your judge, just remember this. You will be asking that very judge to go and, if he stays, that's who you will be facing for the rest of the case!


Sunday, 4 September 2016

SHAMING COURSE

Alex Claridge who run's Birmingham's highly regarded Wilderness restaurant is very angry. And I don't blame him. He has had a spate of customers making bookings and then failing to turn up: 16 no-shows in just one evening very recently. He is reported to be thinking about publicly shaming the culprits. He'll tread very carefully and needs to do so.

It's an offence under the Administration of Justice Act 1970 to make a demand which is likely to cause someone who owes you money or their family alarm, distress or humiliation because of any threat or publicity which goes with it. Publicising that someone is indebted to you for breaking a contract isn't making a demand and especially if you are not after money but shaming.

However, there's also the Protection from Harassment Act 1997. That makes it an offence to pursue a course of conduct which amounts to harassment so long as whoever was responsible knew or ought to have known that is what it would do. Harassment includes alarming someone or causing them distress. A person who had evidence of an intended public shaming campaign which included them might  be able to obtain a county court injunction to prevent it.

Best if you have been let down, to make a controlled claim against the no-shower for compensation for your loss of profit caused by their contact breach.

What's on the menu, Alex? 

KATTY NAME

Blair Drummond Safari Park, near Stirling has named its new meerkat pups after my former clients Ronnie and Reggie Kray. Why? Because a group of meerkats is known as a mob or gang.  If the Twins were still around they might have taken exception to that. They once sued the BBC for libel for  lowering their reputation although the claim was abandoned.

You're right, though.  The law is reckoned to be that you cannot defame a dead person by libelling or slandering them so anyone who decided to complain on behalf of the Twins' estates about the meerkats' handle would  have a bundle of obstructions in their way.  However, a judgment of the European Court of Human Rights in 2013 suggested that a defamatory statement about a deceased person might, for a relative of the deceased, be  breach of their right to respect for private life under article 8 of the human rights convention. So you never know!

Thursday, 1 September 2016

AT YOUR SERVICE

The service charge under your residential lease will be about as popular to you as a drummer in the upstairs flat. There's a risk now in challenging the reasonableness of the service charge if you have been sued for it in the county court. That's because though the case has been dealt with as a 'small claim' you will probably end up having to pay the landlord's legal costs if you lose. The lease wording will usually see to that and this will prevail over the 'small claims' costs regime which limits what the loser has to pay the winner in costs. But when the landlord is after their costs in a court or tribunal case, study the lease wording with a high powered magnifying glass. 

In a tribunal ruling just published, the tenant has escaped paying the landlord towards over £11,000 in legal costs on the ground that the wording in the lease on which the landlord relied did not catch them. It allowed the landlord to employ solicitors for certain things and to charge up the tenant. However, the wording was not specific enough so as to relate to solicitors' and barristers' fees for defending the tribunal cases involved.  Any liability had to be clearly spelt out in the lease and the lease in its entirety had to be looked at to decide whether or not the tenant had to pay up as the landlord asked.

This latest ruling on the topic might be of help to you. It comes in a case called Sinclair Gardens Investments (Kensington) Ltd v Avon Estates (London) Ltd  in the Upper Tribunal (Lands Tribunal) reference (2016) UKUT 317 (LC).