And Another Thing….

I wrote a piece on the Pre-Action Protocol for Debt Claims yesterday – link here. I took the title at face value and assumed that it was about Debt Claims – by businesses against customers or possibly others for sums of money that were owed by individuals.

However, the definition of scope is surprisingly wide:

1.1 This Protocol applies to any business (including sole traders and public bodies) claiming payment of a debt from an individual (including sole traders).

A number of people have pointed out to me that most claims for possession or forfeiture of leases include a claim for payment of  a debt – the rent or service charge arrears – and so the Protocol appears to apply to them.

Now the Protocol doesn’t apply when the debt is covered by another protocol (para 1.4) but the only possession claims that are covered by their own protocols are mortgage possession claims and possession claims by social landlords. The other claims  – for ASTs based on rent arrears (Grounds 8 or 10 or 11), for long residential leases based on arrears of rent or service charges, and even for business tenancies  where the tenant is a sole trader – are not, so the Protocol presumably applies. In all of these cases the Landlord invariably asks for a money judgment against the Tenant for the amount of the arrears, and this is clearly a “debt” in the normal meanong of the word.

I haven’t thought it all through, but I can’t think that this was entirely intended. The timescales in the Protocol don’t really fit in at all well to the normal commercial timescales in possession claims. Is the tenant really going to be given up to 90 days before possession proceedings can be brought against them, when the rent is normally payable monthly, or even weekly? Is the Landlord going to have to ask for possession but not a money judgment until a lot later, when the tenant has possibly moved out?

And what about the complicated procedure for claims for service charges, with all their applications to the FTT, or the rules on payment for maintenance, complete with the mechanism for consultation beforehand, payments of estimated sums on account, followed by balancing charges, and so on? This really doesn’t tie in with the Protocol procedure.

I just don’t know, because it was only drawn to my attention by James Attew of Brethertons today (here) and I had previously thought that as the Protocol has been around in draft form since late 2015 somebody would have thought of this by now.

Now it may be that there is going to be a new protocol covering all this, although I haven’t heard anything about it. Or the courts are going to say that “debt” doesn’t mean “debt” for these purposes, or something. I just hope that it isn’t another mess-up on the lines of the deposit protection fiasco, because that is rather what it looks like at present.

Any views would be most welcome.

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Pay Up or I’ll…Wait For It!

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The 7-day letter is one of the oldest forms of legal communication. Asking your lawyer to write to a debtor telling them to pay up or be sued has been around since Victorian times, and indeed for a lot longer. The exact form, and the period given, has varied over the years. When I qualified (a disturbing time ago now) it was usual to give 7 days, although the court were fairly sanguine if you gave less, and given that all communication was by letter, and all payments by cheque, the debtor would have to get their skates on to get payment to you in time. The letter could be very short and to the point, and no information other than the amount due and perhaps the invoice number was required.

Then the Pre-Action Protocol in the CPR increased the length of time to at least 14 days, and required certain basic information, and the provision of details of where to get help to be given to non-businesses. This was generally felt to be a good idea, although some debtors would play the system, asking for extra time to take advice when they had no intentions of taking any. But it meant that you might get offers of settlement before you issued proceedings rather than afterwards, which did at least save the issue fee. And you might be able to weed out the debtors who had no income or assets and so weren’t worth suing at all.

Well, everything has now been turned on its head, at least in respect of claims against individuals by businesses by the Pre-Action Protocol for Debt Claims which comes into force on 1st October 2017.

The Scope of the Protocol

It covers any business (including sole traders and public bodies) claiming payment of a debt from an individual (including a sole trader). It complements any regulatory regime applying to the creditor (eg  under the Financial Conduct Authority) which must be complied with as well, but does not apply to debts covered by other Protocols , such as the Construction and Engineering, or the Mortgage Arrears Protocols, or to claims by HMRC for taxes and duties (covered by PD7D).

So a claim against a consumer or a sole trader (eg F Bloggs t/a The Red Lion PH) is covered. A claim against a partnership or a limited company (eg F Bloggs Ltd t/a The Red Lion PH) isn’t.

What is Required

I am afraid that there is no alternative to setting a lot of the Protocol out in this piece, although I have summarised where I can. The exact wording can be seen via the link here and above.

  1. The Letter of Claim

The creditor has to send a Letter of Claim to the debtor. So far no real change. Note however that this must be sent by post – email or other electronic means will not do unless the debtor has expressly requested that the post is not used. And the Letter of Claim needs a lot more information than before, including:

  • the amount of the debt
  • whether interest or other charges are continuing
  • details of any oral agreement
  • the date and parties of any written agreement and an offer to supply a copy on request
  • assignment details if relevant
  • if regular instalments are being offered, or paid, an explanation of why the offer is not aceptable and why a court claim is being considered
  • how the debt can be paid – where and how – and how to discuss payment terms
  • the address where the completed Reply Form should be sent

The creditor also needs to send

  • an up to date statement of account, or details of how the claim is made up including any interest and administrative charges
  • the Information Sheet and Reply Form in Annex I
  • a Financial Statement form (like the example at Annex II)

2. The Response by the Debtor

If the debtor does not respond within 30 days the creditor can start proceedings.

If they do (using the Reply Form) they can ask for copies of any relevant documents, supply any document sof their own, and make proposals. The creditor should allow at least 30 days from receipt of the Reply Form, or 30 days from provision of any documents requested before issuing proceedings. If the debtor needs more than 30 days to get debt advice they can ask for it and the creditor should allow extra time if reasonable in the circumstances.

Any proposals for payment by instalments should be considered and if not acceptable the creditor should give the debtor reasons in writing. And a partly completed Reply Form should elicit an attempt to contact the debtor to obtain further information.

3. Disclosure of Documents

If the debt, including any interest or time for payment etc, is disputed the parties should exchange information and documents to enable them to understand each other’s position. And if the debtor asks for a document or information it should be provided within 30 days, or an explanation should be given as to why it is unavailable.

4. Attempts to settle and ADR

Parties should negotiate on any points still in dispute using ADR if appropriate. This can range from discussions to formal steps such as mediation in a larger case.

If the parties reach agreement on repayment the creditor should not start court proceedings while the debtor complies with the agreement. And if they wish to start court proceedings at a later date they must send a new Letter of Claim and start the Protocol afresh, although they don’t need to send documentation again if it has been sent in the last 6 months.

5. Taking Stock

If the debtor has responded to the Letter of Claim but agreement has not been reached the creditor should give them at least 14 days’ notice of their intention to start court proceedings, to allow both parties to review their positions and see if proceedings can be avoided.

The Consequences of not Complying with the Protocol

These are the usual consequences of not complying with a Pre-Action Protocol – the court can give more time, penalise in costs or interest or in other ways. But it looks at the substance, and is not concerned with minor or technical breaches.

It is not clear at present how far the courts are going to enforce compliance with the Protocol, given the enormous number of debt claims that go to a default judgment and enforcement without any court officers actually looking at them. The other protocols generally cover areas which are disputed and where the parties can raise breaches in a Defence or application of some kind. Most debt claims are undefended and with most debtors unrepresented they may not know if corners have been cut or even avoided altogether. See below.**

The Annexes

You really need to read the Protocol for these. They set out

  • An Information Sheet (compulsory)
  • A Reply Form (also compulsory)
  • A Standard Financial Statement (an example)

So What does a Creditor Do?

This cannot be ignored. It will have a radical affect on the recovery of debts from individuals, and unless businesses adapt appropriately they may suffer a disastrous hit to their cashflow. Because today’s 14 day letter will turn into between 30 and 104 days under this new regime, and possibly more if the debtor goes through the process, agrees to pay and then only pays a couple of instalments, when the Protocol must start again.

Possible suggestions:

  1. Don’t allow credit – get paid up front before the goods or services are supplied. You may lose some customers, but customers who don’t pay aren’t worth having.
  2. If you deal with businesses consider avoiding sole traders. Claims against partnerships and companies are not affected by this. Although a small company may not be worth suing either, for different reasons.
  3. And make sure you know who you are contracting with (always a good idea anyway). Is The Red Lion PH run by a sole trader, or a partnership, or a company, and if so who are they?
  4. Credit-check you customers before you do business with them, not just before you sue them.
  5. Start the process very early – the moment that the payment becomes overdue.
  6. Send non-protocol letters chasing debts as present, knowing that at the end of the day you probably won’t sue for claims below a certain value.
  7. Insure, or factor, or sell your debts, or consider doing so. 50% of a debt that is actually paid is better than 100% of a debt that isn’t.
  8. Get some training so you can get things right, or pass the debt collection to an outside collector who knows the ropes.
  9. And get your paperwork in order. The new system will expose errors that you used to be able to hide in the past.
  10. Or hope for the best and see above.**

And the Verdict?

When the Mortgage Arrears Protocol was introduced a number of years ago there was much concern in the industry that the new procedure, not that different to that given here, would make mortgage arrears impossible to recover. In fact, once the lenders had got used to things I understand that it made very little difference, and although the process took longer this merely allowed the borrowers who could pay if given time a bit more time to pay, to everybody’s advantage. The borrowers who couldn’t pay were evicted a bit later, but as most of the debts were covered by the security of the houses the lenders got paid in the end. So on the whole it was a good result.

I’m not sure that this will happen here. Consumer debts aren’t covered by security on the whole, and small businesses can be badly affected by delays in payment. There is a lot of scope for the ingenious debtor to delay things and play the system.

These procedures may be appropriate for a finance company, or a credit card company which is recovering debts on a large scale, although they are already covered by the FCA’s requirements which are not that different. They are less appropriate for the plumber or nursery, or indeed the  friendly local solicitor who don’t insist on payment in advance at the moment. Although that may have to change.

It will be interesting to see how this works out.


 

The UNISON Case – Biggest SC Case for Years

R v Lord Chancellor (ex p Unison) [2017] UKSC 51

This is my 100th post on this blog. I started it in June 2011 and had been intending to put up a commemorative piece, going over my favourite articles and looking forward to the future. I may still be doing this, but not now. Because the SC’s decision this morning is so significant that I have to cover it immediately

The facts of the case are simple. In 2013 the government imposed fees on applications to the Employment Tribunals, all of which had previously been free. By way of contrast the civil courts have charged fees for claims, applications and other activities for hundreds of years. But the ET fees were very high – £390 for the simplest claims, and £1,200 for the more complex ones, including Unfair Dismissal, Equal Pay and Discrimination claims. There were also fees imposed in the appeal tribunal – the EAT. These fees were generally to be paid in two stages – to issue, and to proceed to a hearing.

These fees were much higher than the fees for equivalent claims in the courts, and were in many cases to be paid by applicants who had just lost their jobs, so it is not surprising that immediately after they took effect  – on 29th July 2013 – the number of applications slumped by about 80%. It would appear that many employers took the view that instead of negotiating a settlement at an early stage they would wait until they saw if the employee paid the fee to issue and to proceed to a hearing before negotiating, as the number of settlements reported to ACAS fell as well.

Now this case wouldn’t be important if all that happened was that the fees were reduced to something a bit more reasonable. This is clearly what is going to happen in the end, even though there is no indication of this as I write. No, the interest is in the way the Supreme Court laid out the manner in which it clearly intends to behave in the future, as Brexit happens and the ECJ fades out of the picture. Because it made it abundantly clear that despite the lack of the sort of constitutional supremacy that a Supreme Court has in say the United States or Germany it is going to lay down the law in a totally fearless way and is not afraid to extract constitutional rights from the Common Law if it can’t find them in statute.

The Decision

The main speech is given by Lord Reed, with whom the other Justices in a bench of 7 agree. After setting out the facts, the statistical reports, and the history of the case, he sets out the constitutional principles  – in this context the rights to access to the courts, and that statutory rights are not to be cut down by subordinate legislation. And he then gives a lesson on the constitution in extremely simple but devastating words:

66.             The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings. The extent to which that viewpoint has gained currency in recent times is apparent from the consultation papers and reports discussed earlier. It is epitomised in the assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since “ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services”.

67.             It may be helpful to begin by explaining briefly the importance of the rule of law, and the role of access to the courts in maintaining the rule of law. It may also be helpful to explain why the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable.

68.             At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

69.             Access to the courts is not, therefore, of value only to the particular individuals involved. That is most obviously true of cases which establish principles of general importance. When, for example, Mrs Donoghue won her appeal to the House of Lords (Donoghue v Stevenson [1932] AC 562), the decision established that producers of consumer goods are under a duty to take care for the health and safety of the consumers of those goods: one of the most important developments in the law of this country in the 20th century. To say that it was of no value to anyone other than Mrs Donoghue and the lawyers and judges involved in the case would be absurd. The same is true of cases before ETs. For example, the case of Dumfries and Galloway Council v North [2013] UKSC 45; [2013] ICR 993, concerned with the comparability for equal pay purposes of classroom assistants and nursery nurses with male manual workers such as road workers and refuse collectors, had implications well beyond the particular claimants and the respondent local authority. The case also illustrates the fact that it is not always desirable that claims should be settled: it resolved a point of genuine uncertainty as to the interpretation of the legislation governing equal pay, which was of general importance, and on which an authoritative ruling was required.

70.             Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless. The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.

71.             But the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations. That is so, notwithstanding that judicial enforcement of the law is not usually necessary, and notwithstanding that the resolution of disputes by other methods is often desirable.

72.             When Parliament passes laws creating employment rights, for example, it does so not merely in order to confer benefits on individual employees, but because it has decided that it is in the public interest that those rights should be given effect. It does not envisage that every case of a breach of those rights will result in a claim before an ET. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights. Equally, although it is often desirable that claims arising out of alleged breaches of employment rights should be resolved by negotiation or mediation, those procedures can only work fairly and properly if they are backed up by the knowledge on both sides that a fair and just system of adjudication will be available if they fail. Otherwise, the party in the stronger bargaining position will always prevail. It is thus the claims which are brought before an ET which enable legislation to have the deterrent and other effects which Parliament intended, provide authoritative guidance as to its meaning and application, and underpin alternative methods of dispute resolution.

He then sets out the principle as found in all the standard constitutional documents, which some of us will remember from the beginning of a law degree – Coke’s Institutes, Blackstone’s Commentaries, and of course Magna Carta:

  1. In English law, the right of access to the courts has long been recognised. The central idea is expressed in chapter 40 of the Magna Carta of 1215 (“Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam”), which remains on the statute book in the closing words of chapter 29 of the version issued by Edward I in 1297:

“We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Those words are not a prohibition on the charging of court fees, but they are a guarantee of access to courts which administer justice promptly and fairly.

For myself I prefer the traditional translation of the passage:

To no man will we sell, to no man will we deny or delay Justice and Right

He then quotes the  cases leading up to the present day. You can see them yourselves from the link at the top of this piece.

The Conclusion

Having looked at the principle he then applies it to the case. For court fees to be lawful they have to be set at a level that everybody can afford, taking into account any remission available. This is not being achieved. For a number of reasons:

  • The sharp and substantial and sustained fall in the volume of cases … as a result of the introduction of fees.
  • People are often obliged to resort to the ET jurisdiction involuntarily and unexpetedly.
  • The Review Report said 10% of claimants said they didn’t bring a claim because they couldn’t afford to do so. This means reasonably afford to do so – not by having to sacrifice “the ordinary and reasonable expenditure required to maintain …an acceptable standard of living”.
  • Hypothetical examples show that the cost to low-income families can be all their free income for up to 3 month. This is not affordable in the real world.
  • The statutory power of remission is far too restricted to change matters. It is limited to exceptional circumstances, but the problem is systemic.
  • Fees can prevent access to justice if they make it futile or irrational, such as in the case of low value claims for say unlawful deductions from wages, especially as many successful applicants recover nothing from their employers in the end.

The fees are therefore unlawful.

He scampered over the remaining points with a side-swipe at an attempted justification on economic grounds

99.             The primary aim of the Fees Order was to transfer some of the cost burden of the ET and EAT system from general taxpayers to users of the system. … Similarly, in his written case, the Lord Chancellor states that, in pursuing the aim of transferring the costs of the tribunals from taxpayers to users, “the higher the fees are, patently the more effective they are in doing so”. This idea is repeated: in recovering the cost from users, it is said, “the higher the fee, the more effective it is”.

100.         However, it is elementary economics, and plain common sense, that the revenue derived from the supply of services is not maximised by maximising the price. In order to obtain the maximum revenue, it is necessary to identify the optimal price, which depends on the price elasticity of demand. In the present case, it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated. It has not been shown that less onerous fees, or a more generous system of remission, would have been any less effective in meeting the objective of transferring the cost burden to users.

The fees are also held to be contrary to EU law as imposing limitations on the exercise of EU rights which are disproportionate, and hence contrary to Article 47 of the Charter of Fundamental Rights of the EU

Article 47 guarantees in its first paragraph that “everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal”. In terms of article 52(1):

“Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”

As a result, and despite the Lord Chancellor arguing that the SC should only make a declaration that the current levels of the fees were too high the court disagreed in strong terms:

119.         That argument mistakes the nature of the illegality with which we are concerned. This is not a case in which an administrative decision is being challenged on the basis that relevant considerations were not taken into account, or on the basis that the decision was unreasonable. The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful ab initio, and must be quashed.

Lady Hale gave a subsidiary speech explaining why the fees also amounted to unlawful discrimination on the grounds principally of discrimination against women, who made up a high proportion of the more expensive Type B claims. And the rest of the court agreed with both of them.

The Consequences

The fees are quashed. Everybody who paid them will be refunded (at a cost estimated at £32m) and until new lawful fees are fixed all ET and EAT proceedings are free. There is a lot of egg on the government’s face, mainly on Mr Grayling’s who was LC at the time they were imposed.

But more importantly the SC has shown that it will stand up for the rights implicit in the rule of law – that there must not only be laws but they must be effectively enforceble through the courts if need be. “That is why the courts do not merely provide a public service like any other.”

I have written on many occasions on the subject of the need to have an effective court system that the public can use, and if it wasn’t the middle of the night I would give you the cross references. The most prominent are Having Rights is Not Enough and Mediation – not the Complete Answer, but there are many others – it is one of my hobby-horses. I may return to this in post 101 shortly, especially after the news that the civil courts made a profit in the last year. Therefore it is really good news that the SC is doing the heavy lifting for us and won’t let a mere politician get in their way.

So that is why I feel that this is the most important SC case for years, even despite the Brexit case in January R v SoS (ex p Miller) That merely showed that the government was doing something that it could do but doing it the wrong way. This is showing that the whole basis of what they are trying to do is wrong, and that is what gives it the importance that it has.

A Tale of Sheep, Goats, Foxes and Dinosaurs

I’m writing this on 29th March 2017, and the only thing that we can be certain about for the next two years or more is that things will be uncertain. So what can you do to make the best of it, as a family, or a small business, and what can we do to help you?

Things have also changed radically in the court system. There are far fewer courts and fewer court staff, legal aid has disappeared, and procedure keeps changing. Litigants have to do a lot more work, yet the costs you can get back have been slashed. It is a new world.

And with a new landscape, like the earth after the asteroid, this is no place for dinosaurs. This piece is aimed at helping you pick the lawyers who will help you to survive. Sheep, goats and foxes survive – dinosaurs don’t – so how can you tell them apart?

The Sheep, the Goats, the Foxes and the Dinosaurs

The Sheep are big companies, the Government and its quangos, and the rich, and their lawyers. They can afford to carry on much as before and have hardly noticed a change.

The Goats are smaller businesses, landlords and tenants, and the rest of the population. They use Foxes to help them – smaller specialised lawyers and other agencies who adapt rapidly to change. They have noticed very significant increases in cost and in the time taken to deal with their legal cases. So they have to be canny and resourceful, and will be the heroes of this article.

The Dinosaurs used to be either Sheep or Goats, or their lawyers. They didn’t notice the change in the legal environment until it was too late, if at all, and so are trying to carry on as if nothing had changed, with disastrous consequences. They can’t cope with the changes and are infuriated with the way in which the Foxes run rings round them. The lawyers have gone out of business.

What to look for in a Fox

In the new world there are many new markers to help pick out those in the know:

  • They are light on their feet – ready to adapt to changes quickly. Just because they always did something one way doesn’t mean that it’s the best way now.
  • They keep up to date – there are frequent changes in the law and procedure, and in the court decisions that follow them. You have to be ahead of the crowd to win.
  • Winning matters – you want a lawyer who will win for you.
  • They keep an open mind – there are lots of different ways of doing things. If one way doesn’t work they pick another.
  • Payment by the hour is on the way out – clients much prefer fixed fees, or payment in stages, so they offer this when possible.
  • They know the shortcuts – nobody wants to go all the way to trial. They know how to get summary judgment, or get the defence struck out, or most importantly, a good offer.
  • They specialise – nobody knows everything well enough to be really good at it. And being really good matters.
  • They get it right first time – you can’t afford to do things twice.
  • They don’t carry passengers – they have a few experts plus a flexible team of contacts to call on when they need them. Why should you pay for all the extras that you don’t need?
  • They’re friendly – this is the key to being a small business. They get on well with their clients, with the courts, and with other lawyers. They don’t waste time with histrionics – they get to the point and get things done.
  • And they remember that they’re lawyers – they advise you, they do the business, but at the end of the day it’s your life, and your business, and they let you make the decisions and call the shots when it matters.

I can’t tell you everything. This is only a short article, and besides, I have a living to make, so come to me, and the Team, to learn more. But remember, this is the new reality. And if you ignore it you are likely to go the same way as the dinosaurs. Which is not a good idea, on the whole.

Ilott v The Blue Cross – Supreme Court Judgment – the final round

Note: All previous hearings of this case reported as Ilott v Mitson

Well, the Supreme Court gave its judgment on this elderly case this morning, and decided that the District Judge who heard it the first time, back in May 2007, got it right, and that all the other hearings in between – two in the High Court and two in the Court of Appeal – got it wrong. So Mrs Ilott got £50,000 from her mother’s £486,000 estate, and the animal charities got the rest. The costs of the exercise would need to be provided for, of course, although Mrs Ilott’s team were acting  pro bono throughout. However at least there is now an authoratitve decision on the area of law in question – well one would hope so, but I’m not so sure about that. More on that later.

How We Got Here

Let’s start by going back to basics. The brief facts are that Heather Ilott was the only child of Mrs Jackson, and ran away with her boyfriend, whom she subsequently married, when she was aged 17. Her mother never forgave her , and there was virtually no contact between them until her mother’s death 26 years later. During this time Mrs Ilott had 5 children, and lived with her husband in difficult financial circumstances, depending largely on state benefits, and living in social housing. When she died, the mother’s last will left virtually all her estate to three animal charities, with whom she had no prior connection, and nothing to her daughter, and indeed a direction to her executors to resist any claim made by her daughter.

The daughter made a claim for a share of the estate under the Inheritance (Provision for Family and Dependents) Act 1975 (“the 1975 Act”). This allows various people – spouses, former spouses, children, and people being financially supported by the deceased – to make a claim on the grounds that the will and/or intestacy provisions did not make reasonable financial provision for them. But in the case of an applicant other than a spouse reasonable financial provision is restricted to reasonable financial provision for their maintenance. And the Act set out in s3 a number of matters which the court must take into account when it makes an order. These include:

(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)the size and nature of the net estate of the deceased;

(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

The court hearings (all of which were under the name of Ilott v Mitson until the SC hearing) were:

  1. DJ Million  – awarded Mrs Ilott £50,000 (about 10% of the fairly modest estate) as being an appropriate amount in the circumstances. She appealed for more and the charities cross-appealed on the grounds that she should get nothing.
  2. King J – allowed the charities’ appeal and dismissed the claim. Mrs I appealed.
  3. CA – allowed Mrs I’s appeal. Case sent back to H Ct to deal with Mrs I’s appeal on quantum.
  4. Parker J – dismissed Mrs I’s appeal on quantum and reinstated the DJ’s award. Mrs I appealed.
  5. CA – allowed Mrs I’s appeal, held that the DJ had made serious errors of law, and substituted an award of £143,000 (to buy her social housing house) and a further £20,000. The charities appealed.
  6. SC – appeal allowed. DJ’s award of £50,000 reinstated.

And I have written about this a number of times – principally here, and here, and here.

The Supreme Court Decision

This runs to 66 closely argued paragraphs and came out this morning, so I’m not going to analyse them in detail here. If you want that there are a number of other articles out already, and there will no doubt be more soon. However, the important points are:

  • Maintenance has an established meaning and means provision to meet everyday living expenses, more on an income basis than a capital basis, and at an appropriate level – not limited to subsistence levels.
  • Reasonable Financial Provision is an objective test. You look at what the result is, and not whether the deceased was unreasonable, or the applicant was disappointed. The case of In re Coventry got it right:

It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court’s powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession. In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown, not that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant – and that means, in the case of an applicant other than a spouse for that applicant’s maintenance. It clearly cannot be enough to say that the circumstances are such that if the deceased had made a particular provision for the applicant, that would not have been an unreasonable thing for him to do and therefore it now ought to be done. The court has no carte blanche to reform the deceased’s dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased’s position.

  • The questions to ask are normally: (1) did the will/intestacy make reasonable financial provision for the claimant and (2) if not, what reasonable financial provision ought now to be made for him?
  • These are essentially questions giving a large amount of discretion to the trial judge, and the Act plainly requires a broad brush approach from the judge to very variable personal and family circumstances.

The court went through the history of the case and in particular the decision of the CA that was under appeal. This identified two apparent errors in the original decision of the DJ, and therefore felt able to set his decision aside and look at matters anew. These were:

  1. He stated that as Mrs I had no expectation of receiving anything from her mother’s estate, and lived modestly, and within her limited means, any provision now must be limited. However he didn’t explain what the provision would be otherwise and how it was being restricted, and this breached the requirement to give a full reasoned judgment.
  2. And he did not know what effect the award of £50,000 would have on her state benefits. He made a working assumption …that the effect of a ‘large capital payment’… would disentitle the family to most if not all of their state benefits, Failure to verify this assumption undermined the logic of the award.

The SC disagreed strongly with the CA’s views on both of these matters. On the first they said (para 35) that such a two-fold explanation was quite unnecesary.

But without going through any such exercise, and yet adhering to the concept of maintenance, a judge ought in such circumstances to attach importance to the closeness of the relationship in arriving at his assessment of what reasonable financial provision requires. In the paragraphs leading up to the one criticised by the Court of Appeal, this Judge had dutifully worked his way through each of the section 3 factors. The long estrangement was the reason the testator made the will she did. It meant that Mrs Ilott was not only a non-dependent adult child but had made her life entirely separately from her mother, and lacked any expectation of benefit from her estate. Because of these consequences, the estrangement was one of the two dominant factors in this case; the other was Mrs Ilott’s very straitened financial position. Some judges might legitimately have concluded that the very long and deep estrangement had meant that the deceased had no remaining obligation to make any provision for her independent adult daughter – as indeed did Eleanor King J when it appeared that she had scope to re-make the decision. As it was, the judge was perfectly entitled to reach the conclusion which he did, namely that there was a failure of reasonable financial provision, but that what reasonable provision would be was coloured by the nature of the relationship between mother and daughter.

On the second the DJ had been presented with a wholly unrealistic wish-list by Mrs I’s counsel at the first hearing, which he described as “unhelpful” and disregarded it. However, the DJ sat regularly in the Principal Registry of the Family Division and had a good working knowledge of the effect of awards of capital on the state benefits of the recipients. Although he had not been given formal evidence on the benefit position, he had been given evidence which showed that Mrs I was managing to pay her way by failing to spend anything on the replacement and repair of the ordinary household belongings;

Mrs Ilott made a strong case for the necessity of spending a substantial sum on items which could properly be described as necessities for daily living. They included such things as essential white goods, basic carpeting, floor covering and curtains, and the replacement of worn out and broken beds. That list did not include other similar necessities such as a reliable car, nor a holiday.

In the circumstances an award of £50,000 would allow her to carry out these replacements, and this kind of necessary replacement of essential household items was not such an indulgence; rather it was the maintenance of daily living. Furthermore reasonable expenditure of this type would rapidly reduce the family’s capital below £16,000 where the cut-off for various benefits occurred. So there was nothing wrong with this part of the award either.

The Result

As the CA’s criticism of the DJ’s decision was wrong the appeal was allowed, and the DJ’s award restored. The court emphasised that the long period of estrangement had to be taken into account, although exactly how was a matter for the trial judge, and that the award under appeal, giving Mrs I about 1/3 of the estate, did not do so adequately, while an award of £50,000 did.

And there was a supplementary judgment by Lady Hale (who agreed with the main judgment as well) setting out some history, and a number of studies and reports, and a strong plea for a revision to the Act to give greater guidance to the weight to be given to the various factors set out in s3 of the Act, especially in the case of an able-bodied adult child.

And the Guidance?

Fortunately the SC can’t rabbit on for 66 paras without giving some guidance to the rest of us, and there are various things here, which I’ve tried to set out above. But the result does seem to me, at least at present, to be disappointing. We had hoped that something would have been said about the way to weigh up the various factors, and we have just ended up being told that it is a matter of judicial discretion, that different judges might decide in different ways and still be correct, and that legislative intervention is required. Not a matter of the highest priority in these Brexit-filled times.

It is useful to have the emphasis placed on the elements of “maintenance” and the fact that the test is an objective one. It is also helpful for the CA’s enthusiasm for rewriting wills to be reeled in a bit, because it makes it easier to predict, at least in broad outline, what a court is going to do. The charities are no doubt pleased with the result, and Mrs Ilott must be wondering why she appealed the 2007 decision in the first place. But it is a long way from answering all the questions, which we had been hoping for. Still, it preserves some uncertainty upon which those of us in practice can make a living – you never litigate in areas where the law is entirely clear, do you?

Newsflash – Ilott v Blue Cross (formerly Ilott v Mitson) Judgment

This is the case about the lady who cut out her only daughter from her will and left everything to some animal charities. The courts varied this under the Inheritance etc Act and after various hearings the case eventually reached the Supreme court just before Christmas. I have mentioned it on a number of occasions –  here here and here.

The case changed names when the Executor defending the will died, as an added complicating factor.

Anyway, the judgment will be out tomorrow at 9.45, and as the decision, whichever way it goes, will give a lot of very authoratitive guidance on how courts implement the law, so there is bound to be a lot of comment afterwards. And I’m sure that I will add another piece here. But not for a day or two,

Forget Civil Partnerships – try Cohabitation Agreements

You will have noticed the case in the CA today which refused to allow a Civil Partnership between a heterosexual couple  – Steinfeld & Keiden v SoS  I’m not sure quite where this is going or why they wanted a Civil Partnership rather than a marriage, but it is part of a larger question – how to deal with cohabiting couples, who have far fewer legal rights and a lot less protection than they think.

I wrote a piece on this some time ago when there was the suggestion of having a Cohabitation Rights Bill. If you are interested in the legal aspects than by all means go back and have a look. However, the final part of the piece is worth reading again now.

My Solution

I  have a proposal which would make a real difference to cohabitation in future.

Parties intending to live together permanently should enter into a “cohabitaton agreement” which would give them significant enhanced rights. The agreement would not be compulsory but should be encouraged by say tax benefits and social pressure. After a time I would expect it to become normal and for people who did not do so to be a small minority.

The agreement could be fairly short, and merely require the parties to live together and look after each other to the exclusion of third parties. In order to make it more attractive and romantic you could include phrases about “in sickness and in health” and “to love and to cherish”.

The parties should make the agreement by saying the words out loud before some state official and in the presence of at least two independent witnesses. This way there could be no argument about whether they consented to it or not. They may give each other small gifts such as a ring. Then they would all sign a register.  Clearly this will need to be set up beforehand, and they will no doubt get their families and friends to attend. There may be some singing or at any rate music, and everybody will no doubt go off for a few drinks or even a full-scale party afterwards.

The basics would only cost a couple of hundred pounds, although if you wanted to pay more then nobody would stop you. Your parents may well chip in, and of course everybody would dress up. It may become fashionable or indeed standard for the woman to wear a fancy dress of a distinctive colour, and the man would wear a very smart suit which he may have to hire.

Afterwards the parties would have all the rights and privileges of a married couple. As indeed they would be.

You cannot be serious!

Well perhaps not. But I think a lot of people have overlooked the distinction between a marriage and the wedding. You don’t need a vast multi-thousand pound celebration to be married, but you do need to enter into some basic commitments if you are going to live together for the long term. Societies have had marriage for thousands of years and they can’t all be wrong. Perhaps the problem today is that we have the solution to the difficulties of cohabitation right in front of us and can’t see it.

Perhaps this doesn’t help Miss Steinfeld and Mr Keiden, but I can’t do everything.