How To Deal With A Provocative Lawyer

The Solicitors Regulation Authority regulates solicitors in their professional conduct. It acts independently of the Law Society. It can discipline a solicitor who breaks the rules about how they should behave. It has just spoken: in fact, it has just warned. This is because of an increase in the number of complaints it has received about solicitors going over the top in the content of their written communications, not just to the public on social media but to clients and to litigants in person. The Authority has told solicitors that they should take care to ensure that their communications are always professional, lawful and do not cause offence.

I told you so.

I told you so.

I told you so.

Oh shut up, Gold. Well, in my defence I need to say that I did deal with the problem in Breaking Law of litigants in person sometimes being intimidated by communications from  lawyers (who might be solicitors or barristers) for their opponent.   Guidance from their professional bodies tells them to avoid using inflammatory words and phrases which suggest or cause a dispute when there is none or inflame a dispute that already exists. The lawyer should also refrain from expressing a personal opinion about the conduct of the litigant in person.

Should you be on the receiving end of a lawyer's letter which breaks the rules, you may be able to use the situation to your advantage. After all, no lawyer who has communicated in terms which were inappropriate wishes to hear their correspondence read out in court and adversely commented on by the judge - or, even be reported to the Solicitors Regulation Authority, if a solicitor, or the  Bar Standards Board if  a barrister, for disciplinary action against them to be considered. Aggressive correspondence from one side can also be reflected in the order which the court makes on the costs of proceedings at the end of  a case.

You'll find the sort of letter you may send bank to the lawyer in response to their provocative correspondence in Breaking Law. Do remember, though, that it's a bad idea to match offensive words with offensive words. There's nothing more galling to a lawyer who has written a highly emotive letter that to be greeted with a reply which starts "I thank you for your letter of 30 August 2017, the offensive contents of which I note."

Bank Holiday In Wilko

You may have been to the beach today. I have been to Wilko. No sand but still enjoyable. I  wanted to return three solar lights which I had bought for the garden about one month ago for £2.99 each but have since been reduced to £1.85. Two were defective. As one alone would have looked stupid (more stupid than me in my red shorts and green trainers), I wanted to rid myself of all three. No problem. Ten out of ten to Wilko for acknowledging in less time than it takes for a flea to bite your bottom that the three could go back.

But how much would be refunded. £2.99 or £1.85 per light? £1.85 offered. 

"I paid £2.99."

"I'll get the supervisor."

"Yes, they were £2.99. Do you have the receipt?"

"I'm afraid not. I didn't expect I would need it."

"I'm afraid that without the receipt the store policy is that we can only refund the £1.85."

"Can I make a complaint?

"Certainly you can. On line."

"Don't you have a discretion to save the hassle of doing that?"

"Regrettably, I don't have a discretion. You would have to see the manager. He is busy."

"I'll see the manager."

Ten out of ten to the supervisor for courtesy and sticking to store policy despite the fact that with other supervisors at Wilko he is due to be made redundant. If you have a vacancy in your operation then I do commend him to you.

The manager appears within two minutes without any crumbs or the remnants of a cheese and pickle sandwich on his shirt. As courteous as the supervisor. Recites store policy.

" I knew the higher price so that shows it was the displayed price when I was in and that I paid it."

"Don't you have a credit card statement?"

"I have three cards and not sure which one I used, if any. And I might have paid cash. Can't you use your discretion?"

"On this occasion, I will use my discretion and give you the benefit of the doubt. However, if this situation recurs and you do not have a receipt, I would not be prepared to exercise my discretion again."

Eight out of ten to the manager (which is a pretty high score and the best I have given to a store manager in this situation). However, he loses two points because

• he implied there was doubt that I had paid the higher price and
• he prejudged what would happen if his discretion was sought after a future transaction and without regard to the fact that the law does not make it a pre-requisite of an entitlement to a refund or compensation that a receipt is produced.

I have visited the inability to produce a receipt before and deal with this and a myriad of other consumer conundrums in my book Breaking Law. It is only fair and reasonable that  with defective goods being returned, you should be able to demonstrate that you bought them from the shop to which you are returning them and at the price you are claiming you paid. It could be by production of the receipt of a credit card statement or, if neither  is available or of assistance, by a bank statement showing a cash withdrawal out of which you maintain you made the purchase. But suppose you used cash and a bank statement takes matters no further? Then your word can be enough. If the matter went to the county court on the sole issue as to where you bought from and at what price and the judge was satisfied it was more probable than not that you were telling the truth then you would win.

I like Wilko. Perhaps they will stock Breaking Law?

Employment Tribunal Claims: Latest

Employment Tribunal claims in England and Wales inspired by the Supreme Court's decision that the tribunal fees for applications were unlawful were stayed (halted) on 9 August 2017 (see http://www.breakinglaw.co.uk/2017/08/employment-law-claims-stop-press.html).

The stay decision appeared perplexing as I reported. 

The stay has now been lifted and so can be ignored.

MasterCard Claim Dismissal Appeal Attempt

Here's the very latest on the claim by Walter Merricks against MasterCard on behalf of an estimated 46 million consumers - you could be one of them! - which was recently thrown out by the Competition Appeal Tribunal (see http://www.breakinglaw.co.uk/search/label/MasterCard%20claim).

Last Thursday lawyers for Mr Merricks issued an application with the Tribunal for permission to appeal its decision to the Court of Appeal. MasterCard has been given until 8 September 2017 to respond. After that, the permission application may be listed for  hearing. There is some legal uncertainty about whether the legal challenge should go to the Court of Appeal or instead be the subject of judicial review to the Administrative Court. My money - though I am not flush with it and things won't change unless you buy my book - is that this claim is going to go to the Court of Appeal via one of the two possible routes. Mr Merricks and his legal team are confident of ultimate success.

Assault By Sneezing

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.

Rights Over Neighbour's Land

The war between adjoining Manchester neighbours is over. It ended in the Court of Appeal last Friday * with a win for Mrs C and a bill for legal costs against Mrs D and her husband for what can be expected to be well over £200,000. And all about whether Mrs C could enter Mrs D's land to inspect the flank wall, built on the boundary line between the two properties, have her meters read and a dispute about whether the gutters on a short extension to Mrs C's property could overhang the air space of Mrs D's property.

Mrs D's deeds gave her the right"with workmen tools and materials" to go next door "for the purpose of effecting... maintenance repair and decoration" to her property. But they did not expressly give her the right to enter next door so that her property could be inspected to see if work needed to be done to it. The Court of Appeal ruled that a right of inspection was required to make effective the right of access to carry out works. Mrs C was not obliged to wait until damp had penetrated her interior walls before seeing whether the flank wall needed repair or to try and inspect from the road. 

What about the meters? They were set into the flank wall and so they could only be read from Mrs D's property. The two detached properties were part of a housing estate. The Court of Appeal said that it could not have been intended that the original purchaser of Mrs D's house and her successors would be unable to read the meters. This would be an absurd situation. A right of access to read the meters was implicit in the deeds. The law will imply into an agreement - whether it relates to rights on acquiring land or other arrangements - a condition which would have been regarded as reasonably necessary or obvious in the light of what was being agreed and the facts the parties were aware of at the time.

Only if 

And for reasons with which I will not bore you, the argument about the intrusion of gutters into Mrs D's airspace went in favour of Mrs C as well.

The principles highlighted by this latest case could help you in any dispute with unreasonable neighbours. The express wording of the title deeds may be crucial but, as you will see, common sense and what should be reasonably implied play an important role.  However, if your deeds do not give you the right to inspect, expressly or impliedly, you may be able to get to inspect by applying to the county court under the Access to Neighbouring Land Act 1992. Easier to have an express or implied right, though.

* The case was Dickinson and another v Cassillas [2017] EWCA Civ 1254

Employment Law Claims Stop Press

This is an update on the ramifications of the Supreme Court's ruling that the widely condemned fees which have been chargeable for employment tribunal claims are unlawful (see http://www.breakinglaw.co.uk/search/label/employment%20tribunal%20fees).

Last Wednesday 9 August 2017 the President of Employment Tribunals Judge Brian Doyle ordered that "all claims or applications brought to the Employment Tribunal in England and Wales upon the (Supreme Court decision)" were to be stayed to await the decisions of the Ministry of Justice and the Courts and Tribunals Service on the implications of the decision. That means that these claims and applications have been halted but not that they have been thrown out.

The order is perplexing and it is to be hoped that its terms and the reasons for it will quickly be clarified. If it is intended to pave the way for reduced fees to be charged in the future for claims that have been made since the Supreme Court ruling without any fee having been paid then it is difficult to see how it will be effective. These claims have been accepted for issue and only new subordinate legislation introducing reduced fees which is retrospective could squeeze money out of claimants. They just don't do subordinate legislation like this.

It is open to any party to one of the recent claims or applications to apply to the regional employment judge for the relevant employment tribunal region for the stay to be lifted. Expect many applications of this nature, particularly because of the novelty of a stay in circumstances such as these. 

What is vital is that claimants who are late in making claims should not tarry on account of this development. The claim should go in without delay to await a decision on whether permission to make it belatedly will be given. The fact that it may be stayed for a while should not influence claimants.