tenants: the right to know >>
Domestic violence warrants live >>
Without prejudice proximity test >>
fatter cats >>
Family blues >>
AND LANDLORDS SHALL SPEAK SERVICE AND ADMIN CHARGES UNTO TENANTS
What is the point in giving rights to residential tenants if they are ignorant of their existence? None. So enter the Commonhold and Leasehold Reform Act 2002 (CLRA 2002), s 153—inserting s 21B into the Landlord and Tenant Act 1985—which comes into force, along with the subordinate legislation mentioned below, on 1 October 2007 by dint of the CLRA 2002 (Commencement No 6) (England) Order 2007 (SI 2007/1256). This requires that a demand for service charges must be accompanied by a summary of the tenant’s rights and obligations.
The Service Charges (Summary of Rights and Obligations, and Transitional Provision) (England) Regulations 2007 (SI 2007/1257) (the SCR regulations) deal with the form and content of the summary but have no application to leases from a local authority, a national park authority or a new town corporation unless for over 21years. “Why get excited in mid–July 2007? Let’s put a few premier matches under our belt in the new season before you inflict this purgatory on us.” Okay, we understand how you feel but an acquaintance with the transitional provision in that title may determine whether you keep or lose your landlord clients.
If the service charges in question are due for payment before 1 October 2007 and the first demand for them is served before that date, then the provisions of sub-ss 21B(3) and (4) will not apply to a further demand served on or after 1 October 2007. Those provisions entitle the tenant to withhold payment until the landlord has served the summary and, if the tenant does withhold, any lease provisions relating to non or late payment of service charges will cease to have effect. The landlord may be inclined to continue to keep his tenant in the dark by getting in at least one demand before 1 October 2007, while he can. Should a first demand be served before 1 October 2007 in respect of service charges payable after that date, s 21B will apply to a further demand served on or after 1 October 2007.
“Legible summary? Blast”
The summary is to be legible and in a typewritten or printed form of at least point 10. The prescribed information to go into the summary, presumably in toner of blood, includes statements that the tenant may ask a leasehold valuation tribunal (LVT) to determine liability for service charges for services, repairs, maintenance, improvements, insurance or management and
before or after the charge has been paid. But it’s not all one way. The tenant will also be told that the LVT fees will not exceed £500 and that there is power to award costs not exceeding £500 against an applicant in the frivolous and vexatious type situation. “For satellite dish installation permission—£500 plus surveyor’s fee for inspecting channels”
CLRA 2002, Sch 11 gave tenants the right to challenge the liability to pay and reasonableness of an administration charge—for example, for consent to installation of a satellite dish or carrying out of building works, on providing information or documents or in respect of a failure to make payment under the lease—at a LVT and, ahead of service charges, obligated the landlord to serve, with a demand for the payment of the charge, a summary of the tenant’s rights and obligations. However, beyond providing for regulations about the form and content of such a summary, the schedule was silent about what the summary was to contain. Now we have the Administration Charges (Summary of Rights and Obligations) (England) Regulations 2007 (SI 2007/1258) which do for administrations charges what the SCR regulations do for service charges. Again, non-compliance by the landlord means the tenant may withhold payment while it lasts.
WITHOUT PREJUDICE, WITHOUT TIME LIMIT
“The without prejudice rule does not apply to those passages in the witness statement,” said Framlington in Barnetson v Framlington Group Ltd [2007] EWCA Civ 502, [2007] All ER (D) 429 (May), “because they refer to exchanges that took place before the commencement of litigation or any basis for potential litigation and, therefore, at a time when there was no dispute.” And the judge agreed. But in the Court of Appeal Lord Justice Auld stated that confining the operation of the rule by reference to some time limit set close before litigation, does not fully serve the public policy interest underlying the rule. If the privilege were confined to settlement communications once litigation had been threatened or shortly before it was begun, there would be an incentive on both sides to escalate their dispute with threats of litigation and/or to move quickly to it before they could safely start talking to each other.
Look to the subject matter of the dispute
A claim to privilege cannot turn on purely temporal considerations. The critical feature of proximity is one of the subject matter of the dispute rather than how long before the threat, or start, of litigation aired in negotiations between the parties. Would they have lowered their guards at that time and in the circumstances if they had not thought or hoped or contemplated that, by doing so, they could avoid going to court over the very same dispute? The crucial consideration is whether or not in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree.
LAWBITES
Get on with it
Applications for summary judgment under CPR Pt 24 often involve points of construction. Where the judge is satisfied he has all the relevant
material before him and that the parties can argue the point fully, he ought to grasp the nettle and decide the point, since the question of whether or not there is a reasonable prospect of success will depend on the result of the construction issue. Arguments that the case should go for trial since evidence might emerge that bears on the construction point should be regarded with caution (see ICI Chemicals and Polymers Ltd v TTE Training Ltd [2007] All ER (D) 115 (Jun)).
Double Dutch
Denmark is now reciprocating with (most of) the rest of Europe over jurisdiction and enforcement in civil and commercial matters and applying Council Regulation (EC) No 44/201. The Civil Jurisdiction and Judgments Regulations 2007 (SI 2007/1655), which came into force on 1 July 2007, amend primary and subordinate legislation to give effect to the agreement to apply, with modifications, the Council regulation.
Enforcement of maintenance and affiliation orders (remember them?), attachment of earnings and applications for financial provision between partners. It’s all there.
New for old
A new party may be substituted for an existing party in proceedings if the latter’s interest has passed to the former and it is desirable to substitute so that the court can resolve the matters in dispute. CPR 19.2 there. And after judgment? Yes, under the Rules of the Supreme Court but they are (mainly) dead. The doubt was resolved in Prescott v Dunwoody Sports Marketing [2007] EWCA Civ 461, [2007] All ER (D) 312 (May). The Civil Procedure Rules permit substitution after judgment too.
“Can you lend us a fiver?”
Five juniors made it to the table of the top 10 highest Community Legal Service paid barristers in 2005–06. Jeremy Rosenblatt, Stephen Knaffer, John Godfrey, Michael Keehan and Marcus Scott-Manderson, we are on our way round. Plenty of qualifications to the published list and so all rather irrelevant—but fun.
Non-mol mulling
They’re in—on 1 July 2007, the Domestic Violence, Crime and Victims Act 2004, ss 1 and 4 (but not s 12) by courtesy of commencement order 9 that is SI 2007/1845 (see NLJ, 29 June 2007, p 934). The scarcely used warrant of
arrest procedure under the Family Law Act 1996, s 47(8) is preserved. In its amended state, s 47(8) will allow a warrant application where there has been an alleged breach of either a non-molestation order—which under the new regime would no longer have a power of arrest attached—or an occupation order which has no power of arrest attached to the provision allegedly breached. What on earth would be the point in seeking a warrant? Principally, to keep beak noses out of it. And note effective disappearance of the requirement for the court to deal with a respondent who has been arrested under a power of arrest or a warrant within 14 days—by an amendment to Family Proceedings Rules 1991,
r 3.9A(4)(b)(i).
FEELING BLUE
It’s out and with a blue cover this year, to be carried with a matching blue covered evidence book and biro and a polka dot pocket handkerchief. The 2007–08 At a Glance—essential court tables for ancillary relief which you are hereby ordered ex parte to buy—has just been published for the Family Law Bar Association (FLBA) by Class Publishing at £40 which, according to table 2, represents a rise over last year of in excess of the rate of inflation. The curse is—though it is difficult to imagine any member of this editorial board resorting to one—that the Court of Appeal failed to hand down its Charman judgments before the copy deadline. The preface, however, anticipates the rulings and comes up with a couple of quite good jokes.
The FLBA’s acknowledgment to the Church of England promoted your reviewer to ponder on whether there was a new essential table of prayers to be offered up before and after submissions and judgment. However, the same tables appear as last year but contain updated information and the publication remains as user friendly as ever.
The bundle diet
The president’s new practice direction on bundles (see 156 NLJ 7239, p 1357) which we are told has had some teething problems, is reproduced with a practitioners’ commentary expressing “some grunts from the coalface”. It attempts to rewrite paras 4.2 to 4.5 which require six separate preliminary documents to be prepared and lodged by 11am on the day before the hearing. It is stated that judges are generally content to
accept a composite note from each side containing the required information. The usual practice for Principal Registry hearings at First Avenue House of more then one hour is explained.
THE BUSINESS OF COSTS
The landlords of business premises brought proceedings for a new tenancy under the Landlord and Tenant Act 1954, s 24(1). The tenants acknowledged service in which they indicated an intention to take a new lease but upon terms more favourable to them than the landlords were prepared to offer. The tenants subsequently changed their minds and served notice pursuant to s 29(5) and the court dismissed the landlords’ application.
Mimicking a discontinuance
In Lay and others v Drexler and others [2007] EWCA Civ 464, [2007] All ER (D) 318 (May) the Court of Appeal held that in these circumstances, the circuit judge who had been asked by the landlords to condemn the tenants to pay their costs had been wrong to refuse and to make no order as to costs. The claim had not been compromised as the judge had stated and so the judge had not been bound by BCT Software Solutions Ltd v C Brewer & Sons Ltd [2003] EWCA Civ 393, [2003] All ER (D) 196 (Jul)—where parties have settled on all issues save costs before a trial or where a trial is incomplete, the court should not, save in a reasonably obvious case, embark on making an order for costs because the court will have no proper basis of agreed or determined facts upon which to base its decision. The tenants’ decision unilaterally to bring the proceedings to an end was analogous to a decision to discontinue.
