Coventry View

A litigation lawyer's perspective

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A Tale of Sheep, Goats, Foxes and Dinosaurs

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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.

Written by Coventry Man

31/03/2017 at 21:14

Forget Civil Partnerships – try Cohabitation Agreements

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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.

Written by Coventry Man

21/02/2017 at 11:51

Aurel Sari: Biting the Bullet: Why the UK Is Free to Revoke Its Withdrawal Notification under Article 50 TEU

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Not my normal area of interest, but a very good piece here by Aurel Sari of the University of Exeter on whether an Art 50 notice can be revoked.

UK Constitutional Law Association

aurel-sari‘There is no going back.’ These were the words of Lord Pannick, uttered before the High Court in response to the question whether the United Kingdom could rescind its notification to withdraw from the European Union once issued under Article 50 TEU (Santos and M v Secretary of State for Exiting The European Union, uncorrected transcripts, p. 17). The claimants and the Government appear to agree on this point and accept that the UK cannot reverse its notification of withdrawal.

It is easy to see why this position should be attractive to both parties. For the Government, it means that once the notification has been issued in accordance with the UK’s constitutional requirements, it would be shielded from any subsequent domestic legal challenge. For the claimants, the irreversibility of the withdrawal notification is of ‘vital importance’ (uncorrected transcripts, p. 14). It is this irreversibility which…

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Written by Coventry Man

17/01/2017 at 16:15

Posted in Topical issues

Why All Businesses are Risky

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This isn’t my normal legal/land-law sort of piece. However, in another life I attend networking breakfasts in Leamington Spa, and this piece is based on a talk that I gave there.

I’ve spent over 35 years as a litigation solicitor. This gives you a very jaundiced view of things. People only come to see me when things have gone wrong. So I’m very used to risk – a major part of my work is managing risk. What can I pass on?

All businesses have risk

If you’re an employee you get paid a salary which doesn’t normally depend too precisely on how much money you are making for your employer. But if you are in business you charge your clients/customers/patients fees and you incur expenses such as salaries, rent, and the cost of materials, and the two sides of the equation are only distantly related to each other. If your income is larger than your expenses you make a profit, and if they aren’t you make a loss, and in many businesses the difference is a very thin line. So there is a risk.

It is part of being a business. You can’t eliminate it. You have to recognise it, and then live with it. And do remember there is the world of difference between being good at an activity  – say photography – and being able to trade successfully as a photographer. You need many extra skills. Risk management is one of them.

Going into business is risky – but then so is living. We could all avoid the risk of being knocked down by a bus by staying at home all day. But we don’t – we just remember to look both ways for the large red (or blue) things. And the budding photographer can manage his risk by getting his staging checked, having the children chaperoned, and taking lots of pictures so that some of them are what the clients want.

Risk isn’t bad in itself. It’s unmanaged, unrecognised risk that is the problem. You have to have a sense of proportion. You walk a lot closer to the edge of a kerb than you do to the edge of  a cliff because the consequences of getting things wrong are so much more serious. So you factor the chances of failure against the consequences of failure and act accordingly.

Of course you don’t always have to take the risks offered. If you don’t like what you see

  • avoid the activity. I don’t know much about conveyancing. So I don’t do it, and any that comes my way is sent on to others who know better;
  • protect by taking precautions, or undertaking training, or by limiting your potential liabilty by contract, or whatever;
  • protect things by insurance, or laying off liability on sub contractors, so you aren’t in the line of fire if things do go wrong.

And remember, risk can be a reason for you to charge a premium price for a tricky job. And if you do enough of something you ought to get pretty good at it, so you have a niche, and are doing things that are well within your comfort-zone. Taming lions doesn’t bother a lion-tamer, although it would certainly bother me.

Risk is good.

Types of risk

It’s essential to recognise & evaluate risk when you see it. At any rate you have to know when there is a problem. As a partner said when I was a trainee in London:

You don’t need to know where the mines are. We have people to tell you that. But you’ve got to know that you’re in a b****y minefield!

A major reason for business failure is not providing for risks properly. If you’re a buy-to-let landlord you have to factor the risk of voids, or the 6-9 months it takes to get an eviction, or changes in the tax on interest, or changes in the law (eg on s21 or the definition of Houses in Multiple Occupation) into your business plan or you will make a lot less than you were expecting, possibly fatally so.

Or say that you are an IT company and allow one customer to account for say 40% of your turnover. You are very vulnerable if their business fails, or is taken over by somebody who doesn’t continue the relationship. We all know to our cost that big and apparently healthy companies can fail – BhS or Austin Reed are only the latest examples. And if they ask you to cut your charges, or give them freebies, you may be unable to resist. Think of farmers, supermarkets, and the price of milk. You have to have your wits about you all the time.

There are two main types of risk – risks of trading, and personal risks – and here are a few examples.

Risks of Trading

  • bad debts/insolvent debtors.
  • changes in the market -new competitors, changes in fashion, technological breakthroughs.
  • changes in cost of fuel, or changes in law or tax.
  • unexpected costs of repairs or research, or a court case.
  • supply problems.
  • employee problems.
  • landlord or tenant problems.
  • black swans – totally unexpected developments that you could not foresee (like the discovery of black swans in Australia when all the rest of the world’s swans are basically white.)

Do remember that most businesses fail because of cashflow problems, not lack of profits as such.

Personal Risks

  • illness/death of owner or family, or key workers
  • divorce of owner(s) or key workers.
  • internal disputes inside company.
  • age and succession.

What to do

Before you start research the business thoroughly. The internet is a wonderful tool, as are books, but they are not enough in themselves. Not everything they say is right, and your particular type of work, or location, or skills, may be different. There is no substitute to practical hands-on working as close to your proposed business as possible. But do remember that if you are working with the vendors of the business that they might not be entirely balanced in their view of things. They are unlikely to undervalue their business or its prospects.

Once you have started take as much advice as you can. You don’t need to follow all of it, indeed you’d be a fool if you did. But you ought to consider it. There are a lot a potential places to get advice – colleagues (if you can), contacts in your trade, networking contacts, friends and relations (although they may not know much about your business), formal mentors, formal training courses and qualifications, and professionals – accountants (the key advisor for most small businesses), lawyers, surveyors, IT techies. And pick the right one – ask around, don’t just read their blurb or go for price.

And then take precautions:

  • set up your organisation properly. Register with HMRC. Get a partnership agreement, or shareholders’ agreement to avoid internal disagreements. Get employment contracts.
  • get terms of business and contracts – either from your trade body or from a lawyer – and use them.
  • set up systems, and follow them.
  • keep records, and back them up regularly.
  • insure against risks that you don’t want to cover yourself.
  • talk to banks before you’re in trouble rather than afterwards.
  • take up credit references for customers and suppliers – accounts at Companies House can be 2-3 years out of date.
  • keep your life/work balance under control.
  • don’t fall out with your wife, or business partner. That will really mess things up.
  • and don’t fall out with suppliers, or competitors unless completely unavoidable. A bit of good will goes a long way.

If you are in trouble seek help early. All professionals find it so much easier to help you if they are called in before matters are going terminal. They may be able to stop you making things worse.

And manage risk. Do what you are good at, and comfortable with. Get others to do the rest. These can be employees, or sub-contractors, or suppliers, or agents. There will be a cost, but it may be worth it. Alternatively, don’t do it at all – like me and conveyancing. And if you are doing something new, start in a small way and work up with time.

What not to do

Don’t ignore problems, or only address them at the last minute.

But don’t get over-protective either. Don’t lose a good oppertunity by refusing to raise modest amounts of finance for it. Or get wildly over-insured against all possible risks, or spend a disproprtionate amount of time and money on seeking advice (I never said that business choices were easy to make.)

Obviously don’t take wild, unassessed risks. But more importantly don’t let your staff or colleagues do so either – often without realising the nature of the risks they are taking, if they have less experience or expertise than you. Or if you haven’t filled them in about the potential problem.

And don’t get too worried either. If you are sick with worry all the time you ought to be doing something else.

Legal dangers – the realities

There is a lot more to taking people to court than just getting the law right, although that undoubtedly helps. Courts are slow and expensive. Opponents go bust and are unable to pay judgments, or the winner’s costs. A lot of management time has to be put into fighting a case which could more productively be used earning money for your business. Big opponents can be very difficult to deal with, as they can throw vast resources both in cash and in manpower at a problem that you can’t match.

You need to be almost certain to win sometimes for it to be all worthwhile. Because if you are certain to win the other side is certain to lose, and can usually be persuaded to do a deal. The courts are really only just a method of getting the parties round a table to settle things, so the sooner you can convince them of this the easier it will be. And if you have good documentary evidence, created at the same time as the events, then any judge is almost certain to find in your favour, so this is the thing to do. Record, get receipts, take photos, confirm things in writing. Don’t just rely on your memory, and an impressive witness-box manner, because that rarely wins these days.

Further information

There is a lot of training out there which can give you useful skills and some of it is essential – if you want to drive an HGV lorry you have to have a licence. And there is genuine expertise and proven techniques in marketing, sales and management, which can be learned, as well as the more classical skills like book-keeping. Look around and pick what suits you.

Obviously keep your technical knowledge up to date. This is what your customer expects and might give you a competitive edge. Things can change very quickly – don’t get left behind.

Books, the internet, trade periodicals and so on can be excellent in showing you the way into a problem, or in keeping an overview on an aspect that you don’t come to very often, or in showing the current trends and interests in your field.

If you need detailed help in a technical area you can go to a professional, for a price. For most small businesses the accountant is the first port of call, and they should be able to direct you to appropriate lawyers or surveyors or whatever if it isn’t their sort of problem.

However, do beware that a lot of “training” is really just a way for the trainer to make a living, rather than being a lot of practical use to you. And some professionals aren’t worth much either.

Finally

So, as I said before

Risk is Good.

Or more accurately

Managed, understood, recognised, prepared risk can be good in appropriate circumstances.

But even then, beware of black swans. Such as the referendum leading to Brexit, which nobody expected when my own business was set up a few years ago, and and the long-term result of which is impossible to predict. A definite risk – but perhaps one for another day.

Written by Coventry Man

22/07/2016 at 00:02

Letting to Illegal Immigrants – the New Restrictions

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In 2014 the government brought in restrictions on letting residential property to illegal immigrants, but only applied them to a pilot area, made up of Birmingham, Dudley, Sandwell , Wolverhampton and Walsall. I wrote about it at the time, but as the restrictions are now being rolled out across the whole of England (but not Wales, Scotland or Northern Ireland) with effect from 1st February 2016 I need to do so again. I’ve cut and pasted a lot from my earlier piece, so don’t be too surprised if it looks familiar. However, the government has taken the opportunity of tweaking things here and there, so there are some changes too.

The Law

Immigration Act 2014 sets thing out in ss 20-37. It defines:

  • persons disqualified by immigration status –  who are, not terribly surprisingly, people who have no right to remain in the UK; and
  • persons with limited right to rent – who are people with time-limited rights to be in the UK, plus people exercising EU rights to be in the UK, but are not EU citizens.

and make a landlord liable to a penalty if they allow them to occupy residential property, either as tenants, or licensees, or indeed lodgers.

There are a number of exceptions for the people

  • only adults count;
  • and UK, EU, EEA and Swiss nationals are exempt.

and for the lettings

  • only residential lettings – ie which the adult will occupy as their only or main residence (even if the premises are also used for other purposes.)
  • leases of 7 years or more don’t count;
  • nor does social housing, hostels, care homes, student accommodation and a variety of other things that are set out in Sch3,

However, lettings include leases, licences, sub-leases and licences and agreements for them  (s20(3)). And the prohibition can be broken by the tenant, or any other adult authorised to live there, or any adult not named in the tenancy agreement who actually lives there unless reasonable enquiries were made and they were not disclosed.

All this starts on 1st December 2014 for the Midlands, and 1st February 2016 elsewhere, and relates to lettings (etc) starting on or after then. Existing tenancies and renewals aren’t affected.

The Code of Practice

Immigration law is notoriously complex, and so the Government, rather than giving all landlords a 3 year training course, and free legal assistance afterwards, has prescribed a Code of Conduct  and some Guidance for Landlords which landlords are meant to follow. If they carry out the procedure in the Code they won’t have to pay the penalties. All landlords really need to have access to the Code. And as it gets changed from time to time you need to check the on-line version each time.

Some of the procedure is obvious. The landlord or agent should interview all the prospective occupants and see if they are intending to live there. If there is any doubt about the age of a child then documentary evidence should be seen and a copy kept. And all the adults should produce appropriate original documents which should be checked in their presence and a copy taken.

And for some people the documents are easy too – UK, EU or EEA or Swiss passport, or EU/EEA/Swiss identity card. They don’t even need to be current.

However, it rapidly gets a lot harder – do you know what a biometric immigration document issued by the Home Office looks like? Me neither. Fortunately the Home Office has produced a guide with some illustrations, although as the tenant can produce identity cards (current or expired) from any of the EU or EEA  countries or Switzerland it would have been helpful if they had shown a more comprehensive selection.

And once you get onto the “acceptable document combinations” or the “Documents where a time-limited statutory excuse is established” – there is a long list of things that most landlords have never heard of, and will have no idea if they are genuine or not.

Finally, if there is an application in train at the Home Office for permission to remain the landlord has to contact the Home Office online (or by phone) quoting the reference number supplied by the applicant.

For time-limited occupants the landlord has to follow their cases up to make sure they don’t overstay their leave. And the document combinations need to be repeated every 12 months.

If a landlord finds that an occupant is there illegally they should report them to the Home Office right away. Provided of course that they have already followed the Code to the letter, or they are just going to bring down hefty penalties on themselves. And then evict them (using the existing legal framework – s22(9) of the Act says that the tenancy isn’t void because of the immigration illegality), or they may have more penalties to pay.

What’s going to happen?

There is a serious risk that a lot of landlords are going to avoid anybody who looks even slightly foreign. So there is another Code of Practice on Avoiding Discrimination which says in effect that landlords have to document-check everybody, and keep copies for inspection, or they can be accused of racial discrimination. So the revised expectation is that they will avoid anybody who can’t produce a UK passport, or possibly an EU one. How do you know if the other documents are real?

This is wrong, and very unfair on a lot of people who are having a hard enough time living in a strange land but are on the right side of the immigration line. But a family of four may cost a landlord £12,000 in penalties, so why take the risk? Mind you the £3,000/head level only kicks in if the landlord has already had one breach, and the occupant isn’t just a lodger.

And the future?

More restrictions are set out in the forthcoming Immigration Bill 2015-16. This is working its way through Parliament at the moment so the wording isn’t yet been set in stone. This is the present version, but it may change. However the key points are:

  • Landlords (or agents) who let to tenants (etc) in breach of the restrictions, and know, or have reasonable cause to believe that this is the case will be guilty of an offence and can be sent to prison for up to 5 years.
  • The Home Secretary can serve a notice on a landlord informing them that the occupiers of their premises, or all of them, are disqualified as a result of immigration status from occupying premises under a residential tenancy agreement. The landlord can then serve at least 28 days written notice on the occupants and the tenancy thereby comes to an end. The section goes on to say, rather cryptically

The Notice is enforceable as if it were an order of the High Court.

Presumably this means they can send in the HCEOs, without having to bother the courts themselves at all. Such tenancies are excluded from the protection of the Protection from Eviction Act 1977.

  • There are provisions to insert implied terms into ASTs allowing them to be terminated if the tenants are disqualified as a result of immigration status from occupying premises under a residential tenancy agreement, and to give new mandatory grounds for possession for assured and secure tenancies.

Comment

This is controversial stuff. Although the government said that the pilot scheme doesn’t show there was any increase in the difficulty non-white applicants had over white applicants when seeking accommodation, this seems to have been a very small sample, and a short time-period, and other surveys produced different results. Rolling it out over the whole country, including London, is bound to make things a lot more difficult.

In the meantime, if you are a landlord, check the paperwork carefully, keep good copies, and if you are in any doubt it may be prudent to say no. And if you are a tenant make sure that your paperwork is spotless, or you are going to find things a lot harder.

The provisions in the Immigration Bill are very doubtful. The ability to serve a notice that is enforceable as if it were an order of the High Court is going back to Victorian times, and the ability of a Secretary of State to issue a notice to trigger this, bypassing the courts altogether, is a serious attack on the rule of law, which the courts will not necesarrily take lying down. Watch this space.

As ever, there are more detailed commentaries on the Nearly Legal blog (this is a link to several posts on this subject)  and on Tessa Sanderson’s Landlord Law blog, and elsewhere.

Written by Coventry Man

31/01/2016 at 19:32

If it Sounds Too Good to be True – Enforcing Possession Orders

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A constant complaint from landlords who are trying to recover possession of rented residential properties is that everything takes so long. Not only do you have to give the appropriate notice – often 2 months – to the tenants before you can issue possession proceedings, but once you issue them they don’t normally come up for hearing until about 6-8 weeks later. The judge, if he deals with it at the first hearing, may make an order for possession in 14-28 days, and then you have to apply for a warrant for possession, and eventually get a bailiff’s appointment for an eviction some time later. Where I practice the delay is about 3-4 weeks, but in London and Birmingham it is nearer 12 weeks. So a landlord may be waiting for 8 months from when he served the initial notice (or longer if there is any sort of problem) before he gets the property back. Throughout this time the tenant is unlikely to have paid any rent, and although there will be a money judgment, this is rarely worth anything, so it is a major issue.

Of course, advising a tenant, you can tell them that they have all this time to stay in the property, and there is very little the landlord can do about it. So there is free accommodation and/or plenty of time to find somewhere else to go.

The Problem

Now, this isn’t fair. The delays in getting the order have to be accepted, but 12 weeks for an eviction is ridiculous, and a farce. So landlords and their advisors have been trying to get round the problem, and some of them had thought that they had just discovered the silver bullet – or at any rate the gun that fires the silver bullet. This is the High Court Enforcement Officer (HCEO), a self-employed official who used to be called the Sheriff (not strictly true but close enough for now.) They enforce High Court Orders (as you might expect) and are much better at getting money out of people than the County Court Bailiffs are, who enforce CC orders, largely because they are paid by results.

This is recognised by claimants, and most CC money judgments for more than £600 are transferred to the HC for enforcement by the simple procedures (sign a request in form N293A) under CPR r40.14A and CPR r83.19 and then enforced by the HCEOs.

Those of you in the know will realise that you can use the same procedure of transfer for an order for possession against trespassers, and indeed the form N293A helpfully provides for this. But the applicant (or their solicitor) has to certify that:

I intend to enforce the judgment or order by execution against goods, and/or against trespassers in the High Court and require this Certificate for this purpose.

You can’t use this simple procedure for other sorts of enforcement, such as enforcing possession orders against tenants. You have to go through the formal procedure of an application under r23 to a District Judge for a transfer from the CC to the HC under s42 County Courts Act 1984. This allows any action (with a few minor exceptions) to be transferred, and there are some criteria for determining these transfers set out in CPR r30.3. Most of the criteria don’t apply once you have a judgment, and the application can probably be dealt with on a paper application without a hearing, but is still needs to be made. If dealt with on paper it will take a few weeks, depending on workload.

However, there is another hurdle before you can enforce your CC possession order, which has now become a HC possession order, with the HCEOs. You need to issue a Writ of Possession. And under CPR r83.13 (2):

Subject to paras 3, 5 & 6, a writ of possession to enforce a judgment or order for the giving of possession of any land will not be issued without the permission of the court.

None of the exceptions cover tenants, just trespassers  and mortgagors. And even more clearly para 8 says that notice has to be given to the tenants:

(8) Permission referred to in paragraph (2) will not be granted unless it is shown—

(a) that every person in actual possession of the whole or any part of the land (‘the occupant’) has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled; and

(b) if the operation of the judgment or order is suspended by section 16(2) of the Landlord and Tenant Act 1954, that the applicant has not received notice in writing from the tenant that the tenant desires that the provisions of section 16(2)(a) and (b) of that subsection shall have effect.

Now it would be just about possible to argue that the occupants only had to be given notice of the original possession proceedings, which they would have been in the normal course of events. However even this has been taken away by the decision of Rose J in Nicholas v SoS 24.8.15 (unreported but covered in a note from Arden Chambers and referred to in para 63 of Birmingham CC v Mondhlani (2015)). She stated quite categorically that the occupants must be given notice of the application for permission, and as she had not been the writ was set aside, even though it had already been executed. And this decision of a High Court judge is binding on all DJs and Masters, and circuit judges in the CC.

By the time that you have issued an application for a hearing, served it on the tenants, and then attended and (hopefully) won you could easily have taken 6-8 weeks, and lost all the time that you had been hoping to save. Together with the extra cost, which you won’t in practice get back from the tenant.

The Right Thing to Do

The only way out is political – get the law changed to allow for speedier enforcement of possession orders, if people think that is a good idea. There is a good practical argument in favour of change, and although the normal objection from tenants is that HCEOs don’t give notice of the evictions, which makes removing their belongings and getting rehoused particularly difficult, this requirement could easily be inserted into any legislation, or indeed into the orders giving permission to enforce (see the Mondhlani case above for an example) so at the end of the day an amendment certainly looks possible, if anybody will take up the cudgels.

The Wrong thing to Do

Ignore the caveats, sign the N293A form, and then enforce the order without getting permission from anybody, or at any rate without giving the tenants notice of your application. You save a lot of time and make a lot of money until you are caught.

Which they have been. Nicholas v SoS, mentioned above, showed the Ministry of Defence being remarkably inventive, and Birmingham CC v Mondhlani (2015) shows Birmingham City Council, who really ought to know better, again being caught red handed. And there must be many more.

Worse, it appears that some of the larger firms of HCEOs may have been encouraging this course of action. Nearly Legal, the housing law blog, has run two excellent posts on this recently (here and here) and it looks as if there may be further developments, in the form of actions for damages by aggrieved tenants, or even arguments about contempt of court.   There are certainly a lot of comments on the blogs, on Twitter and in the legal press. A recent addition is in the Landlord Law Blog.

I will say no more for now, except to comment that it is yet another example of the truth of the old saying:

If something sounds too good to be true, it probably is.

PS – another update from Nearly Legal on this saga here.

Written by Coventry Man

08/01/2016 at 00:24

Blogging for Beginners – the Movie

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[Why the title? – because my last piece was a trailer]

This piece follows from a short talk that I gave recentlyto the Leamington Business Network – a local breakfast networking group. They were interested in what use blogging might be for small businesses, and so I told them that

It lets you get your ideas out to thousands of people on the internet, instead of a few dozen in a room.

So they said “tell us more.” And I did.

What I do

I’ve been running this blog since 2011. This is posting number 77, so I put out 1-2 a month. I’m still in many ways a beginner. You will know that it is a blog on (mainly) legal topics, with the emphasis on Landlord & Tenant, Contract, Legal Procedure and other points of interest. You will know that I write as Coventry Man, because I was in Coventry when this started, and I haven’t gone far even now. And the WordPress Elves tell me that I’ve had just over 10,900 hits in total, which is trivial compared to some, but respectable for the rest of us.

I told them a bit more but you know all that as you read my pieces, so I don’t need to tell you again. And I don’t need to explain how WordPress works, or that it’s the biggest and most user-friendly blog site, so a good place to start.

Why a Blog?

Blogs are good for a number of things:

  • longer articles than will conveniently go on Facebook or LinkedIn.
  • a series of articles, that people may want to look back through.
  • photos and pictures generally, although you will see that I don’t take advantage of this.
  • and they are easier to change than a lot of websites, especially law firm’s websites, where you tend to have to pitch to a committee  each time.

And best of all it is your blog, so you don’t always have to fly the flag for your firm, and can take it with you if you go.

Why do it?

Lots of reasons. Take your pick:

  • it’s a way of commenting on topical subjects to a much bigger audience than your front room, office or pub.
  • you can help other people by analysing difficult subjects and setting them out clearly, in a way that professional journalists, who don’t have the technical knowledge or experience, can’t manage.
  • you may be able to persuade the Powers that Be to change their minds and not do things that are clearly going to end in tears.
  • on the other hand you probably won’t, but at least you tried.
  • you can show off your technical skills, knowledge and friendly attitude to a larger audience some of whom may be so impressed that they come and see you professionally afterwards.
  • or you can just let off steam.
  • polish up your writing skills.
  • and let people understand whatever it is that you do a bit better.
  • you can publicise events, either your events or other peoples’.
  • photos and pictures can be very effective, especially if you do things that are photogenic, like bake cakes, or are writing about birds or the countryside. Not so effective for lawyers.
  • and if you have enough visitors you may be able to make money from advertising, although you need a lot of visitors, and a paid-for blog.

If you actually want to sell things you will need either your own website, or to host the blog yourself, which is much the same thing.

Tricks

Don’t look here. There are hundreds of sites that will give you hints and ideas, and tell you the 5 best ideas for a new blogger, or 10 things to avoid in a blog. Type the question into Google, look at  the results, and pick a few that are relevant to what you are doing.

What I can say is that you need to get organised, and make time in your diary for blogging, and keep a note of things that you might write about. Most importantly, decide why you are doing it, as this will colour all your actions.

And then get started, and stick at it.

Other Media

You are unlikely to be able to blog by itself, as nobody will read you, which rather loses the point of doing it. It is possible to read blogs by using the “Reader” function on the host site, and scroll through looking for something interesting, but most people don’t do that, especially if your blog isn’t promoted by the host, which they only do once it has a certain level of following. And you can get followers who click on a button on your site, so thay are sent links to new pieces that you put up. This is very slow however – I have about 30 after over 4 years – so it isn’t the answer.

You can of course tell all your friends and neighbours, clients, suppliers and so on by email/phone/postcard, and this can be quite effective, if rather hard work.

Or you can get your pieces linked (via eg WordPress’s Publicize feature) to  your pages at LinkedIn, Facebook and Twitter, so there is a brief entry on your timeline with the beginning of your blog piece and a link so your other followers can go and look at it. This is much more effective, and not really too much work for you.

I have over 1,000 Twitter followers as @CoventryMan so this is where I concentrate my efforts. The basic Publicize link is pretty basic – the title plus a shortlink –  so I usually put up Tweets with a bit more information every few hours for a number of days to make sure that enough people get to hear about the masterpiece. It seems to work. If the piece is any good you will normally get it retweeted by other twitterers, so that it can be read by all their followers too. An automated system like Hoot Suite, which puts out prefabricated tweets at specified times, would mean less work on my part, so I’m thinking about that.

Some people put their blogs, or the better ones, up on their own websites. This can be a bit unwieldy, and needs regular editing and pruning to keep things up to date, so it isn’t always worth the effort.

Of course, once you get well known you will get links and comments from other bloggers and even the more mainstream media, and publicity becomes less of an issue. You might even be able to get people to comment on your blog using the Comment function, and possibly get a debate on your own patch. However, I’ve not been able to achieve this yet, and comments are few and far between. Still, here’s hoping.

And is it all Worthwhile?

Definately. I’ve always enjoyed writing, and it’s good to get a chance to spread my words around the world. It has definately raised my profile as a lawyer, and might even have got me some new clients. So if this sounds like your sort of thing, get started.

[Note: normal service, on legal topics, will be resumed shortly.]

Written by Coventry Man

01/09/2015 at 17:14

Posted in Topical issues

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