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Accessible legal tips, know-how and news for anyone with a complaint or legal issue from Stephen Gold, author of The Return of Breaking Law, the book

Monday 26 November 2018

Bankruptcy Win After Offer To Settle Refused

Recently, I bought you The Pointless Bankruptcy - how you as the debtor might successfully argue that the bankruptcy petition against you should be thrown out because you 'aint got a bean. 
(see http://www.breakinglaw.co.uk/search/label/bankruptcy)

Now, without my arms leaving my body, I bring you The Failure To Accept A Reasonable Offer Bankruptcy. Under section 271 of the Insolvency Act 1986 the court has a discretion to dismiss a bankruptcy petition if the debtor has made an offer to the creditor to secure the debt and that offer has been unreasonably refused.

In a case just before the High Court *, the debtor owed school fees. She offered to the school to pay the fees by instalments PLUS interest at the rate of 3% PLUS security over a property by way of  charge  (so that the property could not be sold while the debt was still outstanding without the debt being paid off and, if necessary, the school would have been able to get the property sold and taken what was due to it out of the proceeds). But the school said it would only accept the offer if the debtor also paid its debt recovery costs. The debtor refused to go along with this requirement because she maintained she wasn't under any  legal obligation to pay those costs.

The school petitioned for the debtor's bankruptcy. The court, on an appeal, threw out the petition on the basis the the offer had been unreasonably refused and that the debtor had had a genuine ground for disputing the claim for debt recovery costs. The judge stated that a reasonable hypothetical creditor would have accepted the offer and that was the test as to its reasonableness.

Boulton v Queen Margaret’s School York Ltd [2018] 10 WLUK 490

Thursday 15 November 2018

New Civil And Family Procedure Rules

Some of this is a bit technical so don't throw a brick through my computer if you don't dig it!

The civil procedure update number - wait for it -101 comes, into force on 08 November 2018. Nothing over exciting unless you are likely to be involved in an application to set aside judgment in the county courts at Birmingham or Manchester. Any such applications there could be dealt with by way of  video link under a 12 month pilot scheme which will be the forerunner to more extensive video hearings. But, under the pilot, only if both sides agree. Though the parties will be in the bath or lounging on the sofa during these video hearings, it will be open to any member of the public to view what is going on at the court. See you there? OK, so you're your filing your fingernails until 08 November 2019.

Also dealt with by the latest civil update are the powers of legal advisers to make decisions which are normally made only by judges. At present, they can deal with consent applications to grant permission for the filing of a counterclaim after a defence has gone in. In future, they will be able to deal with applications of this kind even though there is an absence of consent so long as the counterclaim limitation period has not expired.

Over in the family jurisdiction, the Family Procedure (Amendment No 2 ) Rules 2018 SI/2018/1171 come into force on 10 December 2018. The main change there  is that appeals to the High Court in family cases are likely to be in public rather than in private. The reason for the change is that these appeals used to go to the Court of Appeal where they were in public even though they had been in private in the courts below. But those appeals were generally rerouted to the High Court in October 2016. The unintended consequence of this is that the public hearing was lost. The change addresses this situation. The court can be expected to impose reporting restrictions on any public appeal hearings when children are involved.

And if you are Welch, then the other change will burst you open with excitement. Following the recent lead in civil cases, the Welsh language will be getting recognition in family cases too. In family proceedings in Wales, the Welsh language will be used by any person who desires it and any document placed before the court in family proceedings in or having a connection  with Wales can be in English or Welsh. 

Wednesday 14 November 2018

Cancel Tomorrow's Appointments: Big Match coming To You

Don't waste time watching daytime tv tomorrow or trying to understand the Brexit backstop to the backstop. Go to the civil division of the Court of Appeal. You won't have to take a bus to the Royal Courts of Justice in London's Strand. Just go live-streaming through your computer. Click on to judiciary website  (have a go around 10,30am) and it will take you to  home match between West Ham United and E20 which manages the Olympic stadium who are arguing about the seating capacity which should be made available to the club for its home fixtures at the London stadium in Stratford. Perhaps a packet of crisps and a few beers would be in order in case the barristers drone on for too long.

In fact, the experience should be fascinating. It is a pilot for what is intended to be a new service designed to increase public access to the courts. Live streaming has taken place for some time in the Supreme Court but in the Court of Appeal only limited broadcasting has occurred. Tomorrow is a first with the full hearing of the appeal case being available for observation at home, Starbucks or wherever you happen to be.

If tomorrow's experiment is reckoned to be a success them many more cases including family appeals can be expected to be up for streaming in the future. You may need a box of crisps and a crate of beers.

MasterCard Claim by Walter Merricks: Appeal Green Light

The Court of Appeal decided yesterday 13 November 2018 that it does have jurisdiction to determine an appeal on points of law against the dismissal by the Competition Appeal Tribunal of the collective claim by Walter Merricks against MasterCard. For the background, savour http://www.breakinglaw.co.uk/search/label/MasterCard%20claim 

So an appeal will proceed in due course. Before Christmas? Come off it. I'll keep you posted.

Saturday 10 November 2018

I'm As Mad As Hell, And I'm not Going to Take This Any More': Public Sneezers Watch Out

I'm just back from shopping during which I was sneezed at in my little face by half a dozen persons who had gone out without a handkerchief or were too lazy to use one. And I'm so mad about the disgusting behaviour of members of the public who know they have an ailment and do not give a fig whether or not they infect whoever happens to be in their vicinity that I feel constrained to repeat a previous posting so that you know how legally you stand if and when you suffer the same experience as me ...as you will. Here it is.
'This is the silly season, alright. And this topic may sound silly. But I'm serious 'cos I am fed up to the teeth with being sneezed at wherever I go. We should all keep our germs to ourselves. And if we don't? Well, let's see.

An assault and battery are known to the civil law as a trespass to the person. If an unprotected sneeze is directed into your face then I regard that as such a trespass. It's probably also the tort of negligence. It could be either or both when, though not directly aimed at you, the sneezer is aware of your presence and the sneeze is emitted so close to you that they should have foreseen that you might catch something from them.

Proving that it was a result of the sneeze that you were struck down could be the obstacle to a successful civil claim for damages. You would have to prove that it was more probable than not that the sneeze was the cause of your illness. Physical closeness, the absence of prior symptoms, the velocity of the sneeze and the stage at which the symptoms began to manifest themselves will be among the major factors for consideration. The further away from you was the sneezer, the weaker your case.

A good sneeze can certainly travel at 60 to 80 miles per hour for up to 20 metres but research published in 2015 suggested that droplets from sneezes - and coughs - may travel 200 times further than had been thought. The incubation period for whatever is to follow the sneeze is around 24 to 48 hours.

Of course, you cannot make a civil claim unless you know the identity of the sneezer. Don't attempt a private arrest. For more on overcoming this obstacle and draft particulars of claim for a sneezing claim for damages, see my book Breaking Law. No warranty is given that you will succeed but let's hope someone does..... soon.'

I feel better now. Sorry.

Tuesday 6 November 2018

MasterCard Collective Claim by Walter Merricks: Latest

The Court of Appeal is due to give judgment (which it has reserved) next Tuesday 13 November 2018 on the issue as to whether it has jurisdiction to entertain a challenge to the decision of the Competition Appeal Tribunal. Watch this space.

Saturday 3 November 2018

Assured Shorthold Tenancies: New Laws For Old Tenancies

Residential landlords cannot now bring possession proceedings against an assured shorthold tenant once six months have elapsed from service on the tenant of the notice under section 21 of the Housing Act 1988 to say they are seeking possession. They would first have to serve a fresh notice.  And any section 21 notice which is  retaliatory step against the tenant for grassing on their landlord to the local council about the bad condition of the premises and which leads to the landlord getting an improvement notice or an emergency action notice, may well be invalid. For greater details, see chapter 43 of Breaking Law.

But wait. These laws and others which are contained in sections 33 to 38 and 40 of the Deregulation Act 2015 have only applied to tenancies granted on or after 1 October 2015. Until now. As from 1 October 2018 they also apply to older assured shorthand tenancies. That's because of the wording of section 41(3) of the Deregulation Act 2015.

For most tenancies granted on or after 1 October 2015, any notice under section 21 of the Housing Act 1988 must be in a prescribed form. It's known as (the swinging) form 6A. What about section 21 notices for old tenancies? It has been suggested that the prescribed notice must now be used for them and that any landlord who has served a non-prescribed notice for an older tenancy should now think seriously about serving a second notice in the prescribed form. It is not a view I share and I can tell you that the Government has no intention of making regulations to require form 6A to be used for tenancies granted before 1 October 2015.