Friday, 31 March 2017

Overly Persistent Litigators

"Mabel,he's done it again. He's just made his 29th application to get that judgment cancelled."

Some persistent litigants will never give up and will make unmeritorious application after unmeritorious application. That could cause you untold aggravation and expense. The most efficient way to stop them (which is separate from seeking to have them declared a vexatious litigant) is to secure from the court a civil restraint order. The more troublesome they have been the more severe will be the terms of the restraint order. At the least, that will prevent them from making another application in particular proceedings without the prior consent of a judge.

Civil restraint orders (see Breaking Law at chapter 15) are available in civil proceedings in the county court and High Court and family proceedings in the Family Court. From next Thursday 6 April 2016 a civil restraint order will be available in cases in the Court of Protection which deals with the affairs of those who lack the mental capacity to deal with them themselves and deciding disputes over powers of attorney, is just one of its functions. The power to make a civil restraint order is introduced by the Court of Protection (Amendment) Rules 2017 SI 2017/187 and there is  a new Practice Direction 23C covering the topic. The rules also introduce a new framework for international applications. 

Wednesday, 29 March 2017

Claims for Riot Damage where Uninsured

It's taken the 2011 riots in England to get the law changed. But it is changing on 6 April 2017 with the Riot (Damages) Act 1886 being replaced by the Riot Compensation Act 2016 and with the Riot Compensation Regulations 2017 also coming into force on the same date. We have now got a better scheme for uninsured or under insured riot victims but  compensation will be capped at £1 million per claimant so if you have a premonition of some bother in your area, you might get rid of  a couple of your Rollers. 

You need a riot to start with. Then you need to suffer the damage, destruction or loss of some property as a result of the riot. You need the property to have been in a building or within its curtilage or on land being used for your business. That won't be necessary for a motor vehicle where special rules apply. And then you need to have been without insurance or adequate insurance or insured with an excess. All that and a claim against the police will open to you. If you are unhappy with how the claim is decided, you can apply for review and,if still doing your nut, launch an appeal to the Upper Tribunal.

Just a word on a claim relating to  motor vehicle. It must have been  insured for third party cover but with riot risks excluded and it must have been taxed.

Tuesday, 28 March 2017

Waitrose store returns: new policy


Waitrose altered its returns policy on 20 March 2017. In 'change of mind' situations and to qualify for a refund, the item must be back within 35 days but with "proof of purchase and in its original packaging". There are exceptions which include chilled and frozen products, unsealed earrings and fireworks.  I am told that the proof will most commonly take the form of a till receipt but that other documents such as a credit card statement "may" be acceptable. Its 'refund and replace' quality commitment where something was wrong with the product remains. 35 days again but only a single refund with no proof of purchase. 

Thursday, 23 March 2017

New Family Law Rules

The Family Procedure (Amendment) Rules 2017 SI 2017/413 along with a  practice direction concerning new and revised forms come into force on 6 April 2017.


Where an applicant applies for a non-molestation order or occupation order, they will be forbidden to serve the court papers on the other party themselves. There is a similar long-standing prohibition against anyone applying for a divorce and certain other matrimonial orders themselves serving court papers on the other party. The upshot is that the applicant who has no lawyer will have to ask the court to serve through the bailiff or will have to organise some other responsible adult to effect service. That adult does not have to be a paid process server. The police domestic violence units or some charities may be prepared  to help. The worry is that court bailiffs will be run off their feet and often unable to track down the respondent who could be spending a lot of their time in local betting shops or pubs - or both. 

Enforcement of maintenance and other financial orders made in matrimonial proceedings by way of attachment of earnings or a charging order is now dealt with by the Family Court instead of the County Court. To cater for this, new application forms are being introduced and will be accessible at hmctsformfinder.justice.gov.uk The FE15 is the attachment of earnings application form and the FE6 and FE7 the charging order application for land and securities respectively.You can also make a search with the court to see whether there is already an attachment of earnings order in force in favour of another creditor. The new form there will be the FE16.  

Wednesday, 22 March 2017

Cool it you creditors: New Pre-Action Protocol for Debt Claims.

It was published yesterday. A new and long awaited protocol to be followed by a business to which you owe money before they sue you. It will apply as from 1 October 2017. It also catches creditors who are sole traders or public bodies. It is for the benefit not only of private individuals but individuals who are sole traders.This protocol will not apply to tax claims by Revenue & Customs or where the debt is covered by another protocol such as for mortgage arrears. Businesses should get on with reorganising their debt collection procedures so that they are ready in six months' time.

The court will normally expect both creditor and debtor to follow the debt protocol. Breach will not be a defence to a claim but it will be taken into account by the court in deciding how to deal with a case started without it being followed. This could result in a case being halted so that steps which should have been taken before proceedings were commenced can be taken after they have been commenced. Or a creditor may be denied the whole or part of their costs which would otherwise have been payable by the debtor. Similarly, interest - or some of it - on the debt which would otherwise have been payable by the debtor may be denied to the creditor. 

Before starting proceedings the creditor must send the creditor a letter giving specific details of the claim. The details should include whether interest on the debt is payable and whether it is continuing. Also, where the debt has been transferred - for, example, by a credit card company to a debt collection company, probably for the price of two grapes - details of the original debt and creditor, when it was transferred and by whom. If the debtor is paying or offering to make regular instalments to settle any debt, an explanation is to be given of why the offer is unacceptable and why a claim is being considered. The letter is to be accompanied by an information sheet and reply form as well as  a financial statement form and dated. On that date or the next day, the letter with its bits and pieces is to be posted to the debtor. Where the debtor has made an explicit request that correspondence should not be sent by post and has provided alternative contact details, then those details should be used when sending the letter.

30 days from the date of the letter. That is the period the debtor has to reply to the letter. The debtor is silent? The claimant may carry on and start proceedings. Where the debtor indicates in their reply that they are seeking debt advice, the creditor should allow a reasonable time for this to be done. If time to pay is sought then both sides should try and reach an agreement based on the debtor's income and expenditure. And where any aspect of the debt is disputed, the parties should exchange information and disclose documents which are sufficient to enable them to understand each other's position. Any document or information requested by the debtor should be supplied to them within 30 days or an explanation given of why it is unavailable.

Provided the debtor has responded to the creditor's original letter but no agreement has been reached, the creditor should give the debtor at least 14 days' prior notice of their intention to sue unless there are exceptional circumstances.

And the position before 1 October 2017? If you are the debtor and your creditor is being aggressive, tell them about the protocol and say they ought to be acting within the spirit of it although it is not yet legally in force.

See Breaking Law for much more on how to protect yourself from your creditors.





Tuesday, 21 March 2017

Will Challenge by Adult Children

If you chose to pack up on planet earth without making a will or make a will leaving out someone who might have expected  a bonanza, that's your privilege - you may think. In fact, if that someone is aggrieved by your omission they might be able make a claim against your estate. The milkman or postman? Only a specified class of persons : principally, spouses and partners; former spouses and partners (unless a court order on break up has excluded the right to do so); those who were being maintained by the deceased when they died. And a child which includes a toddler as well as a great big old and ugly child?

The Supreme Court has just given its eagerly awaited judgments * on how claims by adult children should be decided by the court and on principles which should be applied to all claims. In the case in question, a mother had left her daughter out of her will. Her estate was worth around £486,000. Apart from a modest gift to a benevolent society connected with her late husband's employment, she had left the lot to a group of charities in which she had shown little or no 
interest while she was alive. She had fallen out with the daughter. They had been estranged for 26 years and three attempts at reconciliation had foundered.

After court hearings including appeals which have been going on for around 11 years (!!!), the Supreme Court decided that the daughter should be awarded £50,000 out of the mother's estate which is what a district judge at the very beginning had decreed. For her part, the daughter had been after one-half of the estate and the charities (anxious that no precedent should be set which would lose them a fortune in bequests in other cases), argued that the daughter should have nothing.  

This is what the Supreme Court said -
  • In a claim against a estate - it would be make under the Inheritance (Provision for Family and Dependants) Act 1975 - the court will usually have to consider whether the will or, if no will, the intestacy laws, make reasonable provision for the  claimant (what it was reasonable for the claimant to receive) and, if not, what reasonable provision ought to be made for them now.
  • In deciding whether reasonable provision has been made the court is NOT deciding whether the deceased acted unreasonably. The court might say that there were very good reasons for the deceased' wishes at the time but what the claimant ends up with, if anything, is not reasonable. That might be, for example, where the claimant's circumstances have altered and the deceased did not know about them or did not have time to change their will. Conversely, the deceased may have acted out of spite but nevertheless made reasonable provision for the claimant.
  • The state of the relationship between the deceased and the claimant will still kick in. In considering both matters mentioned above, questions arising from that relationship will be applicable as will be questions relating to the needs of the claimant and issues concerning competing claims of others.
  • The date for assessing whether reasonable provision has been made and, if not, what it should be is the date of the hearing of the claim and not the date the will was made or the date of death. So the court is looking at circumstances as they are when a decision is being made.
  • A claimant other than a spouse or civil partner can only claim what is needed for their maintenance. This is not limited to subsistence level. The maintenance needed not be by way of regular income payments. It will very often be more appropriate if the claimant gets a lump sum from which both income and capital can be drawn over the years. Or the claimant might be awarded a lump sum to buy a car to get to work. There is also no reason why housing should not be provided which could be by way of a right for the claimant to live in a particular property for the rest of their lifetime. 
If leaving out from a will a child or someone else who might make  a claim, you can set out your reasons in a document to go with the will. The mother in the case before the Supreme Court did just that and what she said was taken into account. For much more on this and additional information about who can make a claim, how, the relevant time limit and the intestacy laws, see Breaking Law at chapter 32.

* The case is Ilott v The Blue Cross and others [2017] UKSC 17

Wednesday, 8 March 2017

Service Charge Wars and Who Bears the Landlord's Costs

Hands up if the service charge for your flat is the bane of your life? Wow, that's too many hands to count right now. I'll set aside next week for that. Let me know if your arms ache in the meantime.

Residential service charges can be challenged before the property tribunal. But what can happen then is that, despite the result, the landlord charges up its costs for dealing with the case - and these could include lawyers and surveyors' fees - to the service charge account because that is what the lease permits. The result is that you and your co-tenants end up paying them. Not very funny.

Hello, Good Evening and Welcome to section 20C of the Landlord and Tenant Act 1985. This enables you to apply to the tribunal (or equally to the county court if there are proceedings there relating to service charges or to the upper tribunal if there is an appeal against a decision of the lower tribunal)for an order which prevents the landlord from passing on those costs. The order may let you off the hook entirely, let you off the hook partially or let one or more of your co-tenants off the hook, wholly or partially. You could even apply for an order preventing costs incurred by the landlord in a challenge by a co-tenant being passed on to you.

In a tribunal appeal by the landlord which has just been decided * the lower tribunal had decreed that the landlord could only pass on 25% of its costs relating to that hearing. That meant that the tenant who was challenging service charges would be liable for just 6.16% of the costs which worked out at around £3.  The landlord was appealing against that decree and on other points.  After some encouragement from the appeal tribunal (ridicule, shotgun to the head, astonished faces - that sort of thing) the landlord agreed to abandon that part of the appeal.

But the landlord's costs for the appeal hearing were substantial which was a serious matter for the landlord since its only income was from the service charges it collected from the tenants of the 30 apartments in the development.  The tenant pleaded with the appeal tribunal to prevent the landlord from adding on its appeal costs to the service charges. The appeal tribunal refused. The landlord had succeeded in the appeal on almost all points and against the tenant's opposition. That the landlord had no resources apart from service charge income was a crucial point. It was just and equitable, said the appeal tribunal,that the tenant should bear his share of the costs by them being added on to the service charges.

Whether you can expect to succeed on an application under section 20C of the 1985 Act will depend on such factors as the conduct of each side; the circumstances of each side; who has won (and very much so); and whether or not the landlord does have resources other than service charge income.

On 6 April 2017 section 131 of the Housing and Planning Act 2016 will come into force. It enables courts and tribunals to restrict the landlord's ability to recover its costs of taking part in legal proceedings by way of an administration charge rather than a service charge.

* The case was Bretby Hall Management Company Limited v Christopher Pratt [2017] UKUT 0070(LC)

For more (much more) on battles between landlord and tenant, see Breaking Law at chapter 43.

Tuesday, 7 March 2017

INSOLVENCY LAW CHANGES

This is for insolvency law anoraks and anyone wishing to avoid reading 444 pages of the Insolvency (England and Wales) Rules 2016 SI 2016/1024. They come into force on 6 April 2017 along with parts of the Small Business, Enterprise and Employment Act 2015 and the Deregulation Act 2015, the net result being -

  • replacement of the Insolvency Rules 2016.
  • modernisation of insolvency practice and procedure.
  • permission to a liquidator and trustee in bankruptcy to pay out a creditor who is owed no more than £1,000 without the need for them to submit a formal claim so that reliance can be placed on the company's or bankrupt's statement of affairs or account records as to how much is owed and to whom.
  • makes the official receiver the trustee of the bankrupt's property as soon as a bankruptcy order is made (unless the court appoints the supervisor of a failed voluntary arrangement as trustee which it is empowered to do).
  • abolishes the final meeting of creditors.
  • removes meetings as the default mechanism for liquidators and trustees seeking decisions from creditors.

Wake up. It's time to go to bed!  

Monday, 6 March 2017

FINDERS KEEPERS

You're still thinking about that Stoke-on-Trent lady who picked up a £20 note dropped on a shop floor by another customer and kept it. She was prosecuted for theft and pleaded guilty. She was given a conditional discharge and ordered to pay £175 costs so she is running at a considerable loss.

Generally, where do you legally stand when confronted with the prospect of a quick profit? Unless you are passing a shipwreck and have the ability to pocket the hull or are in game with your three year old daughter,  forget the idea of finders keepers because you too could earn yourself a criminal charge. BUT you will not be guilty of theft unless you acted dishonestly. So if you keep the money or other property you have come across and you genuinely thought you were legally entitled to do so then that won't be dishonest and won't be guilty of theft. In the case of property other than money which you find, it would not be dishonest to keep it believing it had been abandoned by the owner. The crazier the idea that you genuinely thought you could do what you did, the more likely the court will conclude you have been dishonest. Hiding what you have picked up under your raincoat or looking around to check that nobody is watching would suggest dishonesty. And you may have an uphill task explaining why you did not hand over what you found to a member of staff or at least told them what you had done and given them your name and address. And why not report the find to the police?

If convicted of the theft of money the court is likely to order you to repay it to the owner. Should it not do so then the owner can sue you for its return in the county court.