Wednesday, 29 April 2020

COVID-19: Bailiff Seizure Holiday


Your copy of Breaking Law (I dispute that the pages fall out), Rolls Bentley, second tv set and stock of 2,689 unneeded multi-packs of toilet rolls are safe from bailiff seizure during the emergency restrictions. Regulations* which came into force on 25 April 2020 prevent enforcement agents (including bailiffs) from taking control of goods at a home or located on the highway (for example, a parked car) while the restrictions last. They can still do the worst at business premises. In relation to rent arrears for business premises where the landlord has been able to send in an enforcement agent to take stock and other goods under the commercial rent arrears recovery scheme, the minimum amount of arrears for this to be done has been done has been raised from seven days' worth to 90 days for the time being (where notice of enforcement was served after 24 April 2020). 

* The Taking of Goods and Certification of Enforcement Agents (Amendment) (Coronavirus) Regulations 2020 SI 2020/451

Thursday, 23 April 2020

COVID-19: Going Out: Changes to Law: England



There have been changes to the law in England on restrictions during the pandemic as from 11am yesterday (see The Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 (SI 2020/447) if you get a kick out of statutory instruments).

Generally, you need to have a reasonable excuse for going out. Specific instances of what will amount to a reasonable excuse are specified in the legislation. You could rely on some reason that is not specified so long as it is reasonable. And that means that any reasonable person would reckon it to be reasonable, if you get my drift! Now, what happens if you leave home with a reasonable excuse but then remain away from home without a reasonable excuse? You might go out to exercise and, once the exercise is over, remain out while you lie on a park bench eating sandwiches and drinking beer in between snores and sunbathing? Yesterday's changes make it clear that staying out without a reasonable excuse becomes unlawful even though you had that reasonable excuse when you originally left home.

Here are the other changes -

  • The specified reasonable excuses are extended to cover leaving or being out to ‘obtain money from or deposit money with’ all types of money service businesses including clubs and international money transfer business.
  • Visiting a burial ground, garden of remembrance or grounds surrounding a crematorium to pay respects to a family member or friend becomes a  specified reasonable excuse.
  • Outdoor as well as indoor swimming pools must be closed but livestock markets and auctions are exempted from closure.









Monday, 20 April 2020

COVID-19 REPOSSESSIONS HALTED IV: TRESPASSERS' HONEYMOONS OVER: LATEST

Please see my posts of 27 March 2020 (two) and 01 April 2020 about the stay of  property possession proceedings and the stay on enforcement of  possession orders.

Today a revised CPR Practice Direction has been published (it is to be found in what is called the 120th CPR update) and operates from 18 April 2020. It -
  • Excludes from the stay on bringing possession proceedings and enforcing possession orders, those proceedings that have been brought against and the enforcement of orders wish have been made against TRESPASSERS and that, if I may say so, makes perfect sense. The stays will also not apply to the fast track procedure for dispossessing trespassers by way of interim possession orders.
  • Clarifies that parties to possession proceedings can make applications for case management direction (and this will usually relate to defended cases) where those directions are agreed by them. This will enable the directions to be made by a judge - provided they are not crazy! - on paper and without any court attendances. It will also enable possession proceedings to resume effectively once the stay period is up.
  • Clarifies that, as I have suggested, there is no bar on possession proceedings being commenced in court during the stay period. But it will not be possible to progress them unless they have been brought against trespassers.

Help With Court Fees

There's no such thing as a free lunch and there's no such thing as a civil or family court case without a prescribed fee to pay. That's the general position. But if you are on benefits or haven't got too much income or capital sprouting out of your purse or  back pocket then you are could well qualify for 'Help with fees' or, to use the scheme's fancy name, fee remission (see Breaking Law at chapter 13). This could mean no fee for you or a reduced fee. If you want to apply for this help or for a refund of a fee you have paid within the last three months 'cos you didn't know anything about the help scheme, then you have to do what? Fill out a form, of course. And the form has just changed.


The necessary form is called the EX160. Good name, eh? Well, it could have been called HARDUP126BBBZAQ which would have been an awful name. To find the form and the official guidance about the help scheme, go to https://www.gov.uk/government/publications/apply-for-help-with-court-and-tribunal-fees?utm_source=68d8a5b0-cfd5-4db7-950c-a1c61e5f04b5&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate


Got there? Among the changes in the form are questions about whether not only you but your partner have any children living with you and whether you and your partner have any other children that you support financially. Children means persons under 16 and up to 19 if in full-time education. If that information was not before the court when you made an unsuccessful application for help then you might care to ask for a refund if it would have made a difference. 

Make sure you use the new form.

Wednesday, 8 April 2020

COVID-19: Contact With Care Home Resident: Major Ruling

Judgment has just been given in the Court of Protection in London on an attempt by the daughter of a care home resident to get him out and look after him herself if the home would not reinstate family visits. 

The resident is 89 and has Alzheimer's disease. He is deaf but is able to communicate through a 'communications board'. The care home had suspended all visits to him from family members on account of the pandemic and had adopted a similar stance in relation to other residents. The daughter had no complaints about her father's care - she was full of praise for the home which was expensive and tearing through the father's capital -but it was the ban that had caused her concern. The judge had no doubt that the father derived enormous benefit from contact with his family and also from his friends and that contributed very significantly to his general sense of well-being.

The european convention on human rights came into play here. The resident had a right to liberty and security except for his lawful detention for the prevention of spreading infectious disease but in accordance with a procedure prescribed by law. And the right to respect for his private and family life. But these rights can be departed from in situations of public emergency, threatening the life of the nation. That is what we  have now. 

During the emergency hearing, the daughter recognised that her offer of 24 hour per day single handed care for her father was not, in truth, a realistic option. However, with the help of the judge, a compromise plan was arrived at. Father would remain at the care home. He would be educated into the world of Skype with the creative use of a communication board and the exploration of concurrent instant messaging. Additionally, the family could, by arrangement, go to his bedroom window which was on the ground floor and wave to him and use the communication board. All this would require time, effort and some creativity.

COVID-19: Insolvency Cases: Temporary Directions: England & Wales

A temporary practice direction was issued on 6 April 2020 relating to insolvency proceedings in England and Wales which is set to last until 1 October 2020 but is likely to be revised before then. You'll find it at https://www.judiciary.uk/wp-content/uploads/2020/04/Temporary-IPD-April-2020_.pdf

Enjoy - and stay solvent.

Monday, 6 April 2020

COVID-19: Child Contact Arrangements II


My post of 25 March 2020 on 'contact/living with' arrangements for children where parents are apart is set out below. Concerns have been expressed that some parents with care have been unilaterally stopping children's time with the other parent without good reason. This must not happen. If it does happen and the dispute cannot be resolved by agreement then an aggrieved parent can make an urgent court application. How to do this is dealt with in a notice issued today by the Courts and Tribunal Service which you can access by clicking on the link underneath. Incidentally, CAFCASS has issued guidance in these situations which suggests that if contact/time has to be stopped for good reason then some compensating contact/time should be arranged for when that is safe. That guidance makes considerable sense.


25 March 2020 post
The head of the High Court's Family Division has issued valuable guidance on what should happen where a child's parents are separated and there is a clash between (a) what an order or arrangement between them says about contact or where the child should be living at any given time and (b) stay at home rules. If an order is in force then this guidance will apply whether it was made in the High Court or Family Court in England and Wales.


These are the key points-


  • Where parents do not live in the same household, children under 18 can - not must- be moved between their parents' homes and this is an exception to the stay at home rule.
  • Where parents agree that what an order says should be temporarily changed, that is fine but it will be advisable for this agreement to be recorded in a note, email or text message sent to each other.
  • Where parents cannot agree a temporary change but one of them is sufficiently concerned that complying with the order or usual arrangements would be against public health advice then  they can change what would normally happen to something they consider to be safe. If any challenge by an aggrieved parent  to what has been done by the other parent is later made in court then the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and stay at home rules together with any specific evidence relating to the child or the family.
  • Where, because of the above, a parent misses out on time with their child then alternative arrangements should be made within the stay at home rules - for example, remote contact by Face-Time, Skype, Zoom etc or, if that is not possible. by telephone.

Quite obviously, this guidance should not be used as a weapon or unilateral action taken out of vengeance or for some improper motive. The child's best interests must always be paramount and misuse of the guidance could in due course have serious repercussions for the parent in the wrong. In the most urgent cases, an application to the court cannot be excluded but, for child cases, only a remote hearing is likely at the moment and the court will not be pleased by trivial disputes when it is subject to the intense pressures that the virus  has presented it with.

Friday, 3 April 2020

COVID-19: More Time For Order Compliance: England & Wales


The order says that unless you put in a defence/supply further information/pay a court fee/hand over specified documents/send the other side your witness statements etc etc etc, something terrible will happen like judgment will be given against you, your claim will be thrown out or you will be compelled to read Breaking Law from cover to cover.

If you had wanted more time to comply it was possible for an agreement between you and your opponent to be reached in writing allowing up to an extra 28 days so long as that extra time did not imperil an upcoming hearing. After all, no point in giving you an extra 28 days when the trial of the case was due to take place seven days after the agreement. This was all set out in rule 3.8 of the Civil Procedure Rules 1998 (essential reading after 11pm). 

Yesterday, an emergency and temporary change was made on account of the coronavirus epidemic by the swingingly entitled Practice Direction 51ZA which increases the 28 days to 56 days and also applies to more time for compliance with what is provided for by a procedural rule or a Practice Direction as opposed to an order.   You still need consent of the other side to the extension. If more than 56 days are needed, even if the other side agrees to it, you must apply to the court for permission for that de luxe extension. And if the other side refuses to agree to you having any or sufficient extra time, you will have to apply for the extra time to the court. The application will be considered on paper, without a face to face or even a remote hearing. Should the application be refused on paper, you can apply for what is effectively a reconsideration. 

If you are already out of time to comply then you can apply to the court to be excused by asking for what is called ' relief from sanctions'.

The Practice Direction makes clear that on any application for more time or for relief from sanctions, the court will take into account the impact of the virus. It runs until 30 October 2020.

The time limits for starting court proceedings cannot generally be extended by agreement and still apply.