Wednesday, 17 April 2019

Landlord Traps and Tenant Delights on Forfeiture: 2 New Cases

Landlord forfeits a long lease because of rent or service charge arrears and claims a possession order. The court makes the order but either fails to give the date by which possession must be granted and/or fails to give the tenant the option of paying the arrears and costs before the date expires and thereby earning relief from forfeiture. The order is deficient and an application for it to be set aside should succeed. The form of the order the court has to make is governed by section 13 of the County Courts Act 1984. The order cannot take effect in less than four weeks and it cannot be unconditional. That's the case of Golding v Martin [2019] EWCA Civ 446.

And here's another one a bit like the other one. Until any contractual right to a landlord to re-enter premises under a long lease has arisen the landlord cannot validly serve a notice under section 146 of the Law of Property Act 1925. In Toms v Rubbery [2019] EWCA Civ 128, the lease provided for a default notice to be served by the landlord and 14 days for the breach to be remedied. The landlord had pounced under section 146 before the expiration of a contractual notice. He pounced too soon and so his section 146 notice was invalid and the landlord was not entitled to possession on the strength of that notice.

These cases will not impact on the majority of cases which come before the courts where forfeiture is not involved. If you are a tenant and have been the recipient of an order which you may think is deficient, obtain professional advice before launching a court challenge to the order. 






Tuesday, 16 April 2019

MasterCard Claim by Walter Merricks: Appeal Result

For the best champagne, see your off-licence manager.

Walter Merricks has won  - which could mean you have won - and MasterCard has lost. The Court of Appeal today upheld the appeal against the refusal by the Competition Appeal Tribunal to allow a collective claim to be brought against MasterCard. It recognised that the Tribunal's decision would have frustrated the will of Parliament that there should be and effective route for consumers to be compensated when businesses broke competition law. 

The case now goes back to the Tribunal which will allow the claim to proceed.  We haven't arrived at an award of many millions yet - actually, £14n is being sought -  but we could be on our way.

Oh, just one thing. MasterCard's lawyers asked the Court of Appeal for permission to appeal to the Supreme Court but permission was refused. MasterCard can still seek permission from the Supreme Court and any request for permission is likely to be determined within the next few months. I'll keep you posted.

Wednesday, 10 April 2019

New Divorce Laws Explained: Pounce or Wait?

The government has just announced its divorce law reforms. If you are hoping to take advantage of them, you will need to be patient. Parliamentary time has to be found for the bill when it is ready. The bill is likely to sail through Parliament (yes, I know they said that about Brexit) but could not be implemented until procedural rules had been drawn up which will be complicated. It could be two years (or more or less!) before the changes are in force. So, don't book the priest (incidentally, the Fleabag cleric is not available) for your remarriage quite yet. Of course, you could always take advantage of the present laws if you can establish one of the five factors which would lead to your freedom - your spouse's adultery, unreasonable behaviour, or desertion which has lasted for at least two years, or a period of separation which has lasted for at least two years if your spouse agrees to  divorce or at least five years if your spouse does not agree or you cannot find them. Divorce on the basis of five years apart will hardly ever be denied whatever the stance of the other party.

Over to the reforms, then. No divorce or civil partnership dissolution until at least one year has elapsed since the ceremony. Then you will be able to go for freedom by lodging a statement with the court confirming that the relationship has irretrievably broken down. You won't have to rely on any of the existing grounds. Just irretrievable breakdown. The statement can come in from you alone or jointly from you and your spouse. Once at least 20 weeks have elapsed from lodging the statement, you will be able to apply for the first decree (it's called the decree nisi in divorce now but its name will change) and then, after at least a further six weeks, you will be able to apply for the second and final decree (it's called the decree absolute now but, again, its name will change). Don't imagine that it will all be over and done with at the end of the 26 weeks. These will be minimum periods and documentation will have to be processed by the court. Nothing will be automatic. It will be down to you to ask for each of those two decrees.

The court will have power to expedite the second decree. It may also be given power to expedite the first decree. It could be given the power to hold up the second decree where financial matters have not yet been resolved.

Cases will almost invariably be dealt with 'on paper' without any personal attendance at court except in respect of any financial applications or child welfare disputes. The present scheme for online divorce etc which is not yet in full flow will have to be adapted to cater for the new procedure. Don't hold your breath!

The nullity law is untouched. It will continue to be possible to ask for a separation decree instead of a divorce  - even within the first year -but, in that event, it would not be necessary to show that the relationship had irretrievably broken down. The court can make lots of financial orders where just separation has been granted.

You will find a great deal of material on the present divorce and other matrimonial law and on how to bring and counter financial applications in my book Breaking Law. Have a read but I'm afraid you will have to buy a copy. Well, not too afraid!

Happy times.