Thursday, 29 March 2018

Litigant In Person Escapes Costs Order

Court proceedings about the welfare of  a child under the Children Act 1989 are often painful enough for the parents (or other parties) without them being saddled with having to pay the legal costs of the other side which has been successful.

The Court of Appeal has just reiterated the principle that in cases of this kind there should not be an order for costs against the unsuccessful party unless their behaviour in the proceedings has been reprehensible. In the case in question, the unsuccessful party on an appeal was a litigant in person, had not behaved reprehensibly and had not been warned in advance that a costs order was going to be sought. Even if there had been reprehensible behaviour, the procedure for getting costs dealt with at the hearing which generally applies had not been followed. That requires the party seeking costs to have sent to the other party a particularised statement of the costs involved and to have done so at least 24 hours before the hearing. In the absence of doing so, the judge might well refuse to make an order for costs even if they would otherwise have done so. The procedure also applies to other family and civil cases.

The costs order in the Children Act case* was quashed.

For how a litigant in person can obtain a costs order in their favour, see chapter 26 of Breaking Law.

* Re A (a child) (2008) CA 13 March 2018


Monday, 26 March 2018

Victims of Rogue Landlords: For You!

6 April 2018. A good day for housing tenants in England.  A landlord or letting agent convicted of certain offences will be vulnerable to a first-tier tribunal order banning them for at least 12 months from letting or engaging in letting agency work. If they break the ban they can be prosecuted (and fined or imprisoned) or stung by the local housing authority for a penalty of up to £30,000. Ouch! If your accommodation is in a building which needs a multiple occupation licence then the banning order will prohibit the landlord from obtaining one or, if they already have a licence, it will be revoked. Without a licence, a landlord cannot serve a notice to kill off an assured shorthold tenancy under section 21 of the Housing Act 1988.

So what are these offences which could lead to horrible consequences for the landlord or agent? Loadsacrime. They include unlawful eviction and harassment, violence for securing entry, failing to comply with an improvement notice of prohibition order, multiple occupation offences, contravention of an overcrowding notice and fire and gas safety offences.

You can't apply to the tribunal for a banning order yourself. That will be down to the local housing authority. But what you can do is to draw the landlord's attention to what might happen if they don't remedy unlawful action they have taken or comply with the law they have so far ignored. But please don't go over the top with your language or parade outside their home with a sandwich board proclaiming that they are Rachman Incarnate or you might end up in the dock with them.

Now this may interest you even more and here you can take action yourself rather than having to encourage the police or the local authority to do so. If your landlord is convicted of one of a set of offences committed on or after 6 April 2018 you can apply to a first-tier tribunal for a rent repayment order. Under that the landlord can be ordered to repay you the rent you have paid for up to 12 months. But you must make the tribunal application within 12 months of the offence being committed. And what are theses offences which could earn you your money back? They include breaching a banning order (see above) and failing to comply with an improvement order. You will find them fully set out in section 40 of the Housing and Planning Act 2016.

For pedants, disbelievers and the curious, see sections 13 to 48 and schedules 1 to 3 of the Housing and Planning Act 2016, the Housing and Planning Act 2016 (Banning Order Offences) Regulations 2018 SI 2018/216 and the Housing and Planning Act 2016 (Commencement No 8) Regulations 2018 SI/2018/393.

For much, much more on Tenant v Landlord, get Breaking Law.

Friday, 23 March 2018

Big Personal Injury Claims: Why To Watch Out for New Damages Law

Any victim of an accident who has suffered serious injury and is making a claim against whoever was to blame would do well to keep an eye on the Civil Liability Bill and to government action which follows it being brought into law. The Bill to apply in England and Wales was introduced to the House of Lords this week. It will result in compensation awards being reduced and so it will be more beneficial to claimants to settle or have their claims tried by a judge under the current law rather than the expected new law. We are some way off  seeing the expected new law in action but serious personal injury claims can take a long time to be brought to a conclusion. Hence, the eye on the Bill.

This is what it is all about.  A serious injury can require long-term care and long-term medical expenses and treatments. Future losses. A claimant should be compensated for these by the insurers for the blameworthy defendant and this will be by a lump sum on top of compensation for pain and suffering and other losses. But this lump sum will be invested and only used as and when money is needed, perhaps over many years. The investment will earn interest for the claimant. The law already provides for the lump sum to be reduced by a percentage figure which reflects the likely interest that the investment will earn. It's called a discount rate and it is widely accepted that the discount rate being applied is over compensating claimants. It is too low and claimants are effectively making a profit to the displeasure of insurers and often the NHS where it is shelling out the cash.

What looks like happening under the new law is that the discount rate will reflect the interest likely to be generated from a low risk  diversified selection of investments instead of  a very low risk selection as now. Spot the difference. In practice, that will have a substantial impact on the discount. The new rate is intended to be reviewed 'promptly' after the law is on the statute book and to be reviewed at least every three years. It will apply across the board to all relevant cases.

As to whether the new law will bring down insurance premiums, don't hold your breath!

For much more on compensation of all kinds, keep both eyes on Breaking Law.

Wednesday, 21 March 2018

Ticketless Train Passengers: New Rights

'Yes, you sir with a paper bag over your head and crouching in the corner of this first class compartment. Would you do me the honour of showing me your ticket?'

Travelling on a train without a ticket will probably earn you what is sweetly called a rail penalty fare. Alternatively, it might earn you a criminal prosecution. Ouch. The penalty fare is the more likely unless they've got you down as a regular non-payer. 

The law is changing on penalty fares on 6 April 2018 in England, Wales and Scotland. Generally, all rail passenger services must follow it except TFL or any of its subsidiaries. The big change is that a streamlined three-staged appeals procedure will apply which is similar to that currently operated by TFL and will be independent of the train operator. The clock will stop for paying the penalty fare pending the result of the appeal. The operator will be banned from imposing a penalty fare if it has not complied with the requirements for the appeals machinery. And a passenger must not be charged a penalty fare if there were no facilities to buy a ticket at the station at which they boarded or  the legal requirements for displaying warning notices about travelling ticketless have not been complied with.

One of the appeal grounds will be that there are 'compelling reasons' why the passenger should not be liable for the penalty fare.

The new law is to be found in the Railways (Penalty Fares) Regulations 2018 SI 2018/366. Take a look at them when the collector isn't around - or (politely) ask the collector to do so. Essential reading if you feel you have been wrongly or unfairly issued with a penalty fare ticket. 

This blog will not be stopping here. Please mind the gaps in this post.