Mantrav Libel Case: - self represented litigants, a sign of things to come?

Attempt by Travel Agent to silence critics ends with an order to pay a Defendant's costs

Your blogger has been involved in a case far removed from the normal everyday practice of landlord & tenant law. A 'strange' case recently made it into the Queen's Bench Division of the High Court at the Royal Courts of Justice in London. Judicial Cat shall refer to it as the 'Mantrav Libel Case'. The case was to last a little over a month; however, it offers an insight into the not so far off future where (due to legal aid restrictions) Self Represented Litigants will quickly become 'the norm'.

A little background 

The Claimant in the case was longtime travel agent Malcolm Hardy. Mr Hardy is 72 and specialised in arranging holidays for the gay community for many years. His business activities have been carried out under various legal structures; however, the common denominator is the name 'Mantrav'. Last year a dispute arose between Hardy and quite a few of his customers. In summary it is alleged that bookings (and payments) were taken for a resort by the name of Club Mancha in Gran Canaria Spain. Holidaymakers would arrive only to find the resort had no bookings and had never heard of the persons expecting to be accommodated. Disgruntled customers took to venting their concerns online. It has to be said that Hardy and Mantrav have consistently denied any wrongdoing. Opposed to that assertion are clear findings of fact in previous civil litigation involving Hardy, which describe him as being 'dishonest' and suggest a history of fabricating evidence. As a result of the online comment Hardy issued proceedings for libel in the Queen's Bench Division on 2 November 2012. He also sought a wide ranging and unprecedented injunction against the 5 Defendants (and 1 Defendant described as "John Does" an american term referring to 'persons unknown') to restrain them from publishing on any website worldwide the words "Malcolm Hardy", "Mantrav", and "Mantrav International" in any context. It was certainly an attempt to secure the most 'super' of the 'super injunctions'. Hardy also sought damages of circa £150,000.00 as part of the claim.

The Mail on Sunday covered the background to the proceedings on Sunday 2 December 2012: -

http://www.dailymail.co.uk/money/holidays/article-2241565/Travel-agent-sues-libel-false-malicious-defamatory-internet-holiday-reviews.html

Self Represented Litigants: - pitfalls for the courts and litigants as well as lessons to be learned

What made this case unusual was the fact that, initially, every party (the Claimant and all the Defendants) were acting for themselves, or 'Self Represented Litigants' as the legal profession now likes to call them. Your blogger was approached by one of the Defendants and your blogger's services were offered pro bono (without charge).

Upon reading the initial case papers something profound stood out. Here was a very serious case. One seeking substantial damages but, more importantly, an injunction with consequences for freedom of expression in the United Kingdom. These were not the celebrities who we hear about almost daily, stalking the courts, seeking to prevent reporting of their 'private lives'. Instead we had ordinary everyday people who risked being silenced by a businessman whose main aim was to gag any person who dared to complain about his alleged business practices. No legal aid was available for any party (and it never has been available for defamation cases in any event). Despite the serious nature of this claim the court was almost reduced to a farce.

The claim filed by Hardy did not even begin to disclose any reasonable cause of action. A cursory perusal of the claim would disclose that it was simply never going to be legally sustainable. A key document called the 'Particulars of Claim' was incoherent, rambling, and failed to disclose any positive case. Despite this the claim made it to a court room on two occasions and led to at least two of the Defendants incurring substantial expenses in terms of disbursements and/or loss of income. 

A substantive hearing before Sharp J took place on the morning of 5 December 2012. Over two hours of court time were taken up considering an injunction application, which as the learned judge made clear was 'totally without merit'. The injunction application was thus dismissed and the claim as a whole was 'struck out'. Thus, for now, the case has ended subject to any decision by Mr Hardy to seek permission to Appeal.

The key point of this blog post however is not the merits (lack of) concerning the claim but the very fact that it was allowed to be brought at all. There are supposed to be mechanisms in place within the Civil Procedure Rules 1998 to identify those cases, which are obviously without any legal foundation whatsoever. Such claims should be passed to a procedural judge to consider whether they should be 'struck out' pursuant to the court's own initiative. The point being that Defendants should not be put to the time and expense of needing to even reply to hopeless claims, which are not going anywhere. In the 'Mantrav Libel Case' Judicial Cat estimates about £10,000.00 in professional legal fees would have been incurred by just one Defendant in one month had specialist libel lawyers been retained. Even without this the Defendants incurred over £1,000.00 in expenses but were only able to recover a small fraction via an order for costs.

The courts must be ready to stop such hopeless claims

In an era were Self Represented Litigants will be increasing, the administration of Her Majesty's Courts and Tribunals Service need to be alert to the issuing of hopeless cases with no basis in law. Rules must be followed and such cases referred at an early stage to the judiciary with the aim of stopping them before one single Defendant is forced to incur the time and expense of dealing with a claim disclosing no reasonable cause of action. It is outrageous that Defendants are expected to pay court fees and incur the expenses of applying to 'strike out' such claims when provisions already exist for the courts to take the necessary action 'in house'. 

As indicated above Mr Hardy may yet appeal and, indeed, he may also simply re-issue his claim and the whole process of expense and time wasting in the court will commence again.

Troubling times in South Africa

30 killed in clashes between Police and striking miners

Amid the news overload in the UK about the Olympics and the pantomime of recent days concerning Julian Assange, a story started to emerge on UK News Channels yesterday, which is of much concern.

http://www.bbc.co.uk/news/world-africa-19292909

Judicial Cat does not know the details of the strike; however, the news has very sad echoes of the pre-1994 South Africa and the sort of news, which those of us of a certain age remember watching nightly during the worse years of apartheid. This is a country of particular interest to your blogger, having visited no less than twelve times in the past eight years. It seems hard to imagine any sort of circumstances were this sort of Police reaction can even begin to be justified. One only has to consider the historical significance of events such as the Sharpeville Massacre in 1960 and the Soweto uprising of 1976 to appreciate why these current events are, probably, sending a "chill down the spine" of many people living in modern day South Africa.

1994 had many hopes but are things now starting to deteriorate?

Your blogger first stepped foot in South Africa in July 2004. Ten years had elapsed since the end of apartheid and a new visitor found a country apparently at ease with itself celebrating a decade of democracy. To the visitor there is much to offer and the overall beauty of the nation cannot be underestimated. However, having travelled the length and breadth of that nation there is an unpleasant side, which appears to be getting worse. Make no mistake about the poverty experienced by the vast majority of South Africans. You can't escape race in that country so let's not "beat about the bush", the vast majority of non-whites still live in informal settlements (townships). Unemployment, even with the daft government policy of affirmative action, is still endemic. There is a middle class doing very well; however, that is the exception rather than the "norm". It is hardly any wonder that strikes occur. That being said whatever possessed the South African Police to open fire with live rounds? Let's not forget South Africa is a democracy with (in theory) some of the most stringent human rights laws on the planet. It is despicable that Police Officers, some of whom would have been subjected to the same treatment by the apartheid era police, have opened fire on their own people. This can only lead to a "slippery slope" of political violence.

The warning from "next door": - Zimbabwe

The current government led by the African National Congress ("ANC") have been in power since the end of apartheid in 1994. The ANC hold office in the majority of the provinces. An exception being the Western Cape under the administration of the Democratic Alliance and Premier Helen Zille. It can be argued that the government has failed to deliver on many of the promises made at the various elections held in the democratic era. Unfortunately, when a political party is virtually guaranteed power (and make no mistake the ANC fall into this category) a certain complacency creeps in. With no real accountability to the electorate a nation effectively becomes a one party state. What incentive is there for those in power to actually tackle the problems of poverty and unemployment, as well as exploitative work practices if they know that come the next election they will be back with an overwhelming majority! Unless the ANC start to address corruption, incompetence, and their own complancey then your blogger fears South Africa will have gone the way of Zimbabwe within the next fifteen years. That would be a sad indictment on that nation and a betrayal of everything that people such as Nelson Mandela, Walter Sisulu, Helen Suzman, and others fought for over many years!

Julian Assange: - UK Government in dramatic warning!

UK Government warns Ecuador of "power" to revoke diplomatic status of Embassy and thus "march in" and arrest Julian Assange

Of all the many things that have troubled your blogger since 11 September 2001, attempts to increase pre-charge detention to 90 days, stop and search without any need for reasonable suspicion, shooting dead an innocent person going about his daily business in July 2005, last night's news about a supposed warning to Ecuador to revoke the diplomatic status of the Embassy in Knightsbridge, London, has the potential to destroy the remaining international credibility the UK has in a way many have never known.

The Assange saga: - quick recap

Julian Assange runs Wikileaks. In 2010 thousands of diplomatic cables and other communications were leaked. Most, if not all, related to intelligence gathered by the various government agencies of the United States. Around the same time, and very coincidentally, Sweden requested the extradition of Assange to be questioned in connection with alleged sexual offences. A long legal battle in the UK reached the Supreme Court earlier this year and Assange's arguments were dismissed. In the circumstances Assange is liable to be extradited to Sweden. The Assange "camp" state that if extradited to Sweden it is likely the USA would demand his onward extradition over the Wikileaks saga. In June 2012 Assange sought refuge in the Embassy of Ecuador and applied for political asylum. Your blogger makes no comment on the merits of either the case in Sweden, or Assange himself. Judicial Cat is concerned with the "threat" made by the UK Foreign and Commonwealth Office ("FCO") to Ecuador. The summary of the "threat" being that the UK could invoke little known legislation passed in 1987 to revoke the diplomatic status of the Embassy and thus allow the Metropolitan Police to go inside using their normal police powers to arrest Assange.

Embassies are the "territory" of another country aren't they?

Many lay persons understand the concept that an Embassy or Consulate is in effect the "soil" of another country. In simple terms it is understood that, for example, the French Embassy in London would be France. That is a common misconception. In strict legal theory the embassy remains part of the territory of the host nation; however, it is subject to the concept of extraterritoriality. This means that the Embassy or Consulate is outside the jurisdiction of the host nation. The international legal framework governing all this is known as the Vienna Convention on Diplomatic Relations. The United Kingdom is an original signatory. In, "pounds, shillings, and pence", this means (in broad terms) that the law enforcement agencies of a host nation can't simply walk into an Embassy etc because they wish to arrest a suspect or carry out another law enforcement activity.

The siege of the Libyan People's Bureau in London: - April 1984

In April 1984 an event took place in St James's Square, London, which continues to have diplomatic repercussions to this very day. During a protest outside the Libyan People's Bureau (Embassy) shots were fired from inside the building and WPC Yvonne Fletcher was killed. A siege followed for a number of days; however, the Police were unable to enter the building and arrest the suspect(s) due to diplomatic conventions. Eventually diplomatic relations were broken and the Libyan Diplomats ordered out of the country. A few years later in 1987 Parliament passed a little known law, the Diplomatic and Consular Premises Act 1987. It is this law, which is the focus of the diplomatic, legal, and political row that is now "brewing". In summary the UK government believe they could use the provisions of that Act and revoke the diplomatic status of the Ecuador Embassy.

So can the government actually do this?

Judicial Cat believes that the government would be on very uncertain legal territory. Section 1 of the Act appears to give the Secretary of State such power and, on the wording (to the layperson) it seems all so simple! The fact is the provision is a discretionary power and must be exercised in accordance with normal public law principles. So any decision would need to be reasonable, exercised for a proper purpose, and proportionate. Section 1 (4) explicitly states that any decision has to be exercised in accordance with international law and Section 1 (5) gives some examples of the sort of circumstances, which may give rise to the exercise of the power. If the Foreign Secretary exercised the power it would be unprecedented in modern diplomatic history. Your blogger takes the view that, in these circumstances, it would almost certainly be unlawful due to the provisions of the Vienna Convention and the fact that the United Kingdom and Ecuador retain diplomatic relations. Without doubt the case would be heading for the Supreme Court of the United Kingdom and probably international courts. However, the political ramifications would be enormous. It would set a very dangerous precedent. If the government of the United Kingdom can just overturn diplomatic conventions and protocols then what is there to stop any nation doing similar to UK diplomatic missions overseas? Make no mistake if China had marched into the Embassy of the United States a few months ago when a chinese dissident was taking refuge, their would have been meetings of the UN Security Council called, sanctions imposed, and goodness knows what else! It seems to Judicial Cat that the stance taken by the UK Government is nothing more than a good old fashioned attempt to bully a "small" nation.

For what it's worth your blogger does not believe that the UK Government will violate the Ecuador Embassy; however, the silly letter containing the "threat" is bad enough! As a nation the UK will lose respect and be seen as the "poodle" of foreign governments. Further, in terms of proportionality, such actions would be absurd. If the UK Government were to take such action then it risks making the UK the sort of international pariah, the UK accuses nations such as North Korea and Iran of being! As a UK citizen your blogger would be ashamed of any such behaviour.

Tenants' Clinic: - can a Landlord just walk into your home

My Landlord used the spare key to enter my home when I was out

Judicial Cat is often asked whether or not a Landlord can just walk into a Tenant's home. Assuming that you are a Tenant with exclusive possession the "simple" answer is no. Indeed should a Landlord do this then it is likely to be trespass and a breach of the covenant of "quiet enjoyment".

The Tenancy Agreement states the Landlord can "inspect" on 24 hours written notice

This is a "favourite" clause relied on by Landlords and Agents. Many (in error) believe that they just need to serve a written notice at least 24 hours beforehand and then they can "walk in". Whilst there is a contractual provision the fact remains that, if you do not agree, the only thing the Landlord/Agent can do is seek to obtain a Court Order. Obviously if there is a genuine emergency threatening someone's life or "health and safety" then the Landlord/Agent my have a legal duty to enter the property to remedy any problem; however, it is for the Landlord/Agent to prove such grounds exist. In summary (for most cases) a Landlord/Agent needs a prior (agreed) appointment to visit for "inspection" purposes.

Quiet Enjoyment?

This is a legal term (a covenant) that is usually a clause in every Tenancy Agreement. If it is not then it will be implied (in other words assumed). Put simply this means you are allowed to live in the rented property without interruption from the Landlord and/or the Landlord's Agents. A Landlord who just lets themselves into the property without the Tenant's permission would usually be in breach of this covenant.

What can I do if the Landlord does just "come in"

You should write to the Landlord warning that any repeat incident will lead to you reporting the matter to the Tenancy Relations office of your Local Council. Also you could issue proceedings in the County Court for damages in respect of trespass, harassment, and breach of "quiet enjoyment".

Remember it is "your home"

Ultimately a Landlord needs to remember that the property is, for the duration of the tenancy, the Tenant's home! The Tenant has legal rights and exclusive possession. Landlords should be cautious before ever entering a rented premises unless they have prior agreement from their Tenant. Mistakes, as ever, usually prove costly!

Lockerbie "Bomber" Dead!

Released in 2009 with "3 months" to live Abdelbaset Al-Megrahi dies in Libya

It is being reported from Libya that the man convicted of the bombing of Pan Am Flight 103 over Lockerbie on 21 December 1988 has died. Al-Megrahi was released by the Scottish Government in August 2009 on compassionate grounds due to terminal cancer. The prognosis was that he had three months to live

Convicted by a Scottish Court in the Netherlands in 2001 with an Appeal dismissed in 2002

The trial and conviction of Al-Megrahi made legal history. A special court sitting in the Netherlands under Scottish Law was convened. There was no jury but a panel of judges. Al-Megrahi was convicted but his co-defendant acquitted. The Appeal a year later also made history as it was televised. The result of the Appeal was that the conviction was upheld. His conviction has generated controversy. Obviously the starting point is that, in the absence of a successful appeal, his conviction stands. That being said it always was a "strange" case.

Scottish Criminal Cases Review Commission Report: - worth a read

Al-Megrahi's death will generate a lot of comment, retrospection and insistence that this is a convicted bomber responsible for the worst terrorist atrocity in United Kingdom history. It is not the role of Judicial Cat to offer an opinion on the guilt or innocence of someone convicted by a competent court; especially when that conviction has never been quashed on Appeal. That being said more and more evidence of "dodgy" dealings has emerged between Libya and the UK following the fall of the Gaddafi regime in 2011. Judicial Cat recommends reading the report of the SCCRC. It is not "light" reading; however it is interesting reading!

http://login.heraldscotland.com/SCCRC-Statement-of-Reasons-red.pdf

And for those who wish to see how the Lockerbie bombing was reported on the actual night in December 1988

http://www.youtube.com/watch?v=Bev7y9b-D-s

Landlords' Surgery: - getting possession (Part 1)

Securing possession of rented property is a legal minefield; get it wrong and you could goto jail!

There comes a time when a Landlord needs to get their rented property back. This could be due to the tenancy agreement coming to a natural end, or due to a breach of the agreement on the part of the Tenant. In any event there is a procedure, which needs to be followed. The procedure is designed to protect a tenant's home and failure to adhere to it could prove costly both financially and legally. Today Judicial Cat shows you how to secure possession when the fixed term of the tenancy has concluded. Next week the issue of securing possession when the Tenant is in breach of their agreement will be dealt with.

Assumptions

It is assumed that you are letting a property on an Assured Shorthold Tenancy agreement and that your Tenant has exclusive possession. In other words you do not live in the same property as your Tenant (a resident Landlord). Further, that you do not provide services such as cleaning, cooking, etc. Procedures relating to social tenancies, non protected tenancies, and licences are beyond the scope of this blog post.

Legislation

Housing Act 1988: - Section 21

Protection from Eviction Act 1977: - Part I

Civil Procedure Rules 1998: - Rule 55

My Tenant has not paid the rent for months, or the tenancy agreement has come to an end. Can't I just change the locks?

A health warning. In most cases it is unlawful to change the locks and evict your Tenant without first obtaining an Order for Possession from your local County Court. Even after this order has been obtained only the Court Bailiffs acting under the authority of a Warrant of Possession can carry out the physical eviction. If a Landlord (or any other person) evicts a Tenant without lawful authority then they risk substantial damages in a civil court and/or criminal proceedings, which on conviction in the Crown Court, could lead to imprisonment for a maximum of two years.

The fixed term of the tenancy has come to an end

Let's say you've granted a tenancy for 12 months and the fixed term has concluded. In order to lawfully terminate the tenancy agreement and gain possession of the property you must have first served a notice. Judicial Cat covered how to properly serve a notice last week: -

http://judicialcat.blogspot.co.uk/2012/05/landlords-surgery-how-to-correctly.html

Once the notice has expired you must issue proceedings in your local County Court (i.e. the court in the district the property is located). The procedure is known as the  Accelerated Procedure for Possession. This will allow a Landlord to secure a possession order in most cases without the need for a court hearing. You simply complete the relevant form and send three copies (or more if there is more than one tenant) to the County Court. You should also send a copy of the written tenancy agreement, a copy of the notice served, and a Certificate of Service (referred to in last week's blog post). Judicial Cat also suggests sending a Witness Statement outlining in detail how the notice was served. The relevant form can be found here: -

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n005b-eng.pdf

It is also absolutely vital that you enclose proof that any deposit has been protected; i.e. enclose a copy of the Deposit Protection Certificate. Failure to do this will mean that the Court is unlikely to grant a possession order. Any previous "section 21" notice will be invalid unless the deposit was protected at the time that the notice was served.

What happens next

The Court will pass the paperwork to a District Judge for review. If everything is in order the Court will make an Order for Possession. Usually this will be in terms that the Tenant leaves the property within fourteen days of the date of the order. Should the Court be in any doubt as to the facts then it is likely to schedule a hearing to resolve any issue identified. Your Tenant can defend the proceedings but only on very narrow grounds; e.g. the dates you rely on for the tenancy are wrong, you did not protect the deposit, or you failed to serve notice. If the Tenant defends the claim on these grounds then the Court will almost certainly fix a hearing. That is why it is important to get your paperwork in order.

And if the Tenant still does not leave

Well you would need to ask the Court to issue a Warrant of Possession. An appointment will then be made for the Bailiffs to attend and physically evict the Tenant. This is rare and your blogger has only needed to instruct Bailiffs once in the past five years!

COMING SOON: - getting possession when the Tenant is in breach of their agreement

The future of the Euro: - it could all be down to a football match!

Greece to return to the Polls on 17 June: - the day after Greece v Russia in Euro 2012

So it's official, Greece will return to the Polls on 17 June in an attempt to get around the impasse created by the inconclusive general election of 6 May. According to the Sky News Economics Editor, Ed Conway, the latest opinion polls put the "far left" anti-bailout party Syriza at 20.3% ahead of current leader New Democracy (a mainstream party) at 14.2%. If the polls are borne out next month then Greece will be irrevocably on a collision course with the Chancellor (who must be obeyed) of Germany, Angela Merkel. Most commentators then predict that bail out funds will cease and Greece will finally ditch the Euro.

It could all come down to a football match

Greece are scheduled to play Russia in the European Championship finals group stage in Warsaw the night before on 16 June. This fact would not have escaped the attentions of those who are responsible for the scheduling of the election. Apparently the poll could have been held on 10 June. This is a serious point. It is well known that a "feel good" factor benefits incumbents going into elections. Conversely incumbents can expect to reap the wrath of the electorate if sudden "bad news" is received in the immediate period before the election. In the case of Greece consider the "mainstream" parties of Pasok and New Democracy to be the incumbents for the purpose of the forthcoming repeat election.

Two examples: - United Kingdom General Election of 1970 and Spanish General Election of 2004

There are two major examples of "events" perhaps influencing the outcome of elections in modern times. In both examples the incumbent governments (Labour in the case of the UK and the People's Party in Spain). where unexpectedly "kicked out" of office. Of course the events I am about to describe are of a different magnitude in each example. In the UK a football match was influential; however, in Spain it was the deadly terrorist attacks in Madrid on 11 March 2004 and the handling of the aftermath by the incumbent government, which turned the election on it's head.

England played West Germany on 14 June 1970 in the Quarter Final of the World Cup in Mexico. England, of course, where defending champions having beat their opponents but four years earlier in the final on home soil. Expectations were high. The "small matter" of a general election was scheduled for 18 June 1970. The incumbent Labour Party, led by Harold Wilson, was expected to "romp home". England lost the game 3-2 after extra time. Four days later, Mr Wilson suddenly needed a removal van!. Labour found themselves out of power and Edward Heath and the Conservative opposition were in Downing Street with a healthy working majority. None of the polls had predicted this!. It was argued that the "feel good" factor had been damaged by England's loss a few days earlier.

The Spanish example is, of course, somewhat different, people were killed. The lesson though is similar. An incumbent government expecting re-election was out of office as a direct result of an event just a few days earlier. In this example the event had a direct impact on the election. The England game may have been influential in 1970 (maybe even very influential) but it can't in anyway be argued that the football match in Mexico had a direct impact in the manner of the Madrid bombings of 2004.

So what's all this got to do with Greece?

Quite simply Judicial Cat suggests closely following the result of the Greece v Russia football match on 16 June. Should Greece win (and win well) expect a result more favourable to the "mainstream" parties Pasok and New Democracy. Those parties may still not do well enough but things will be close. Should Russia win the night before then your blogger expects a clear reaction the next day. Things are bad in Greece, we all know that. Losing on the football pitch will just reinforce in the minds of the Greek electorate that their nation continues on a "downward spiral". In such an event expect the equivalent of an electoral "blood bath". 

It really will be "all over" and Greece will be heading for the Grexit!

Grexit: - what a Euro mess!

It really is now time for Greece to be "set free" from the Euro

A health warning, Judicial Cat is not an economist. Indeed your blogger's only formal economics "training" took place over 20 years ago as part of a first year undergraduate course. That being said your blogger distinctly recalls some of the more obvious arguments against joining the Euro; when back in 1991 it was still some years away, but even then anyone with "sense" could predict the sort of events we witness today. The sovereign debt crisis may not have been predicted; however, what happens when their is a major disparity between the economies of say a northern European nation such as Germany, and a southern European nation such as Greece certainly where!

Billions just "thrown away"

For the past two years the EU and the IMF have literally thrown billions at attempting to solve the problem in Greece. Yet it remains unresolved. Every few months the political "elite" of Europe announce the latest "idea", which will finally solve the debt crisis. A few weeks later a new crisis then erupts ........ rinse and repeat. Whilst the continent's politicians refuse to face reality the majority of the citizens of Greece live in abject poverty. It can be argued the system in that country has a lot to answer for, and yes it does, but any student of history can see the reality in Greece is now becoming comparable with the days of the Weimar Republic in Germany during the inter war period. The only thing missing in Greece is hyper inflation.

Austerity, the elastic won't stretch anymore

It is ok for Frau Merkel to sit in her Chancellery in Berlin going on and on about austerity like some old "broken record"; however, it is not Germany facing the serious prospect of a breakdown in the social order of it's nation. Already there are reports of soup kitchens in Athens, children being passed to orphanages, as well as suicides. Let's not forget that Greece is a country, which was in the grip of a military dictatorship as recently as 1974. The recent inconclusive elections were conclusive in one respect; namely, the rejection by Greek voters of the mainstream parties of Pasok and New Democracy. So called "fringe" parties where the real "winners" in the election. When Greece returns to the polls (and they will very soon) expect the "fringe" parties to become the mainstream. Those parties, with their mandates, are not going to continue to take lectures from Chancellor Merkel. So either the eurozone and the IMF "back down" and continue to bail out Greece despite that country not following the terms of the bail out, or the money tap is finally turned off and Greece defaults and is forced out of the Euro.

With no mandate from the people to continue the austerity course imposed on Greece then it is obvious that something has to change. The only realistic option is for Greece to leave the Euro.

It might be painful but ultimately it will prove fruitful

Leaving the Euro will be chaotic, it will send "shivers" through every country on the continent. There will be bank runs, exchange controls, border closings and a few unpleasant things besides. That being said Greece will have a new currency and once again be in complete control of their own economy. They will be able to conduct their affairs for the benefit of the Greek people and once again become a fully sovereign state. A new Drachma will float on the markets and Greek exports will become competitive. Indeed the tourism industry will receive a boost from the favourable rate of any new Drachma to say the remaining Euro, the Dollar, or Sterling. A path would have been taken, which will ultimately lead to Greece restoring some national pride and some hope. What happens with the threat of contagion is for the remaining eurozone nations to worry about. The single currency was always a plainly daft idea without full fiscal and political union first. Like artificially created nations, this artificially created currency is facing the same fate; i.e. oblivion.

Remember "Black" Wednesday?

16 September 1992 is described as "Black Wednesday" in the UK. On that date the nation was forced out of the Exchange Rate Mechanism (ERM), the forerunner of the Euro. Despite the gloomy predictions the UK economy recovered and provided years of growth. All this as soon as Sterling was allowed to "float" and not be artificially locked into a "false" exchange rate with the then Deutsch Mark.

Ultimately Greece will leave the Euro so why not get it over with now and stop the further wasting of billions of euros of citizens' money and the breakdown of the social fabric in Greece.

Tenants' Clinic: - getting that deposit back

Tenants need to be pro-active in getting back their deposits

Last week in Tenants' Clinic we looked at the issue of protecting deposits and what can be done if the Landlord fails to comply with the law in this regard. 

http://judicialcat.blogspot.co.uk/2012/05/tenants-clinic-protecting-tenancy.html

Another issue faced by Tenants is a failure by Landlords and Agents to return deposits in a timely fashion and/or "unreasonable" deductions.

The inventory is all important

On the day of move in the inventory is the most important document in relation to the deposit. This document forms the basis of the agreed condition of the property in so far as the Landlord and Tenant are concerned. When checking in it is vital that the Tenant inspects the condition of the property, the fixtures and fittings, with the Landlord/Agent and notes any discrepancies there and then. Some Landlords/Agents like to leave an inventory with a Tenant and ask that they report any issues within seven days; otherwise the Tenant is deemed to have accepted what is on the inventory. Judicial Cat does not recommend this. There can be many disagreements if problems are not identified on the day that the Tenancy commences. These days almost everyone has a camera and/or video camera on their mobile phones. USE THEM to take a visual record of the property condition. Your Landlord almost certainly will!

During the tenancy

A Tenant needs to report any issues in a timely fashion. In furnished properties lots of things are the Landlord's responsibility; however, a Tenant needs to conduct their part of the agreement in a "tenant like fashion". This means reporting items needing repair, looking after items as if they were your own, and not allowing the property to fall into disrepair or otherwise neglect your duty to look after the property and the items inside.

Checking out

This is absolutely important. YOU MUST BE PRESENT AT THE CHECK OUT and Judicial Cat cannot stress this enough! Do not allow your Landlord/Agent to conduct the check out without you being there. Again the point of this is to ensure both parties reach an agreement about the condition of the property and there is then no room for "sharp practice" (by either party) if the checkout is done with just the Landlord present. Sign off on the inventory and insist on retaining a copy. Again taking photographs/video is a good idea at this point.

You've left the property but the Landlord/Agent is "dithering" and/or claiming for unreasonable deductions

If you've followed the advice about being present at the check out then there should be no room for much dispute. There could be an argument over specific costings for expenditure; e.g. cleaning, replacing missing items etc. In this event simply insist on receipts and if the costings seem "high" then obtain a few quotes and raise this with the Landlord.

As for "dithering" this does happen (an awful lot). Within ten days of check out the Landlord/Agent should write to you confirming how much of the deposit will be returned. If this does not happen then write to the Landlord/Agent by recorded delivery giving a final seven days to comply. If there is still no response then you either file a dispute with the relevant deposit protection scheme (this is free and the details are in the Prescribed Information) or you can commence proceedings in the County Court.

Disputes about deductions

Firstly let me make clear, that despite wording in Tenancy Agreements to the contrary, Landlords are NOT entitled to make deductions for unpaid utility bills, council tax,and  television licence UNLESS your Landlord was the contracting party for those services (in other words the bills are in the Landlord's name, which is unusual).

A Landlord has no personal liability for the unpaid bills of the Tenant. Therefore the Landlord has suffered no loss and is thus not entitled to be "compensated" for the unpaid bills. It is a matter for the relevant service provider to pursue with the Tenant.

Any other deductions should be disputed in writing. In the event of no reply or an unsatisfactory reply then file a dispute with the relevant deposit protection scheme or issue proceedings in the County Court.

COMING SOON: - can a Landlord just walk into a Tenant's home?

Thanks Sir Alex, but it's time to go!

Manchester United need new investment, the Glazers out, but most of all fresh new ideas

Firstly, Manchester United were but ten seconds from winning a 13th Premier League Title. They have amassed eighty nine points. No team with that number of points has failed to win the Premier League since it's inception in 1992. Manchester City's winning margin is on goal difference only. This was the closest "top flight" championship since 1989. Judicial Cat was going to make this call regardless of today's outcome. However, with the Premier League trophy now en route along the Mancunian Way, an era has ended.

Sir Alex Ferguson has been an inspiration but nothing lasts for ever

The manager is by far the most successful in the history of the game in the UK. His trophy haul is second to none. However, Sir Alex is 70 and has been at the club since 6 November 1986. Most of the players were not even born when he first took charge at United. The fact is that United where "lucky" to win the league in 2010-2011. Only because the rest of the division fell far short in expectations did United's winning margin last year appear to give the club merit. The fact is last year's win ( and had United won this year) papered over the "cracks" and allowed the club to "plod along" believing all was well! The fact is all is not well at Old Trafford.

A club that has won 12 out of the previous 19 Premier League titles should not have thrown away an 8 point lead

Forget what Manchester City did in the first half of the season. The fact is United where eight points clear with a month left of the season. An experienced team with an experienced manager yet they threw that lead away. Losing to Wigan Athletic and then conceding a two goal lead at Everton is not the form of champions. United had lost the hunger and desire to retain a trophy that they had won all too often. Even after this "performance" they then went to Eastlands and LOST. A draw would have sufficed! And that is before one considers what happened in the Manchester derby at Old Trafford. That debacle contributed to the goal difference, which ultimately allowed Manchester City to prevail!

Blackburn, Arsenal, and Chelsea, we've seen it all before!

This is different! City's achievement does not even begin to compare to Blackburn Rovers in 1995, Arsenal in 1998, or Chelsea in 2005. Here were teams set to dominate for years to come but then faded away. This City team has the resources, the fans, and the world class players to dominate in a way United themselves did from the mid 1990s onwards. Judicial Cat wishes it were different; however, this is a 1993 moment for Manchester City. This first title, together with the money they have, will lead to bigger and better things. Make no mistake this will be no "flash in the pan".

This is why it is time for United to seize the opportunity and plan now for the years ahead

Yes any United fan would like Sir Alex to leave on a "high". That is not going to happen. Not only do United have to plan for the future in terms of the Premier League, the club needs to plan NOW for their future in Europe. Something has to happen with the Glazers. Judicial Cat does not have the answer. They can't be forced out easily; however, bare in mind Sir Alex has fully supported their regime in full knowledge (and contempt) of the fans' wishes. The PLC format worked well for the club. Let's be honest there have been no "wow" signings for the club for a number of years now and that is the real problem here. Manchester City now have the status, the money, and the momentum to attract world class players. They have realistic chances of winning the Champions' League in due course. What have United got? Massive debt, a manager who has been there far too long, and no long term plan!

A manager with fresh ideas, "star" pulling potential and a CV to match is what United now need

In the end a time comes when a club needs to "move on". The worst possible thing for United is to have a situation similar to the early 1970s when Sir Matt Busby finally left the dug out. This loss of the title should be used to bring in a new manager, let him find his way, attract new talent, with focus on a plan to bring glory back to Old Trafford consistently within the next five years. Waiting for Sir Alex to "bow out" in, for example, three or four years time is too late. The changes need to come NOW! Judicial Cat accepts this is not a popular sentiment and many United fans will say your blogger speaks "crap". So be it. Your blogger supported United in the days of Ron Atkinson. Judicial Cat watched Liverpool fall from their perch (and not return almost a quarter of a century later). It would be a great disservice to the United fan base if Manchester United followed suit!

It's time for action! That action should be the immediate installation of Jose Mourinho as the next Manager of Manchester United Football Club.

Saturday Rant: - Leveson, what a waste of money!

It is the best show in London but The Leveson Inquiry is a grotesque waste of taxpayers' money!

You cannot escape The Leveson Inquiry. It seems every day there are new "revelations" demanding columns of newspaper "analysis" and extensive "in depth" reporting by the "news" channels. The daily proceedings seem to send the Twitterati "wild" with glee! Indeed yesterday the Twitter reaction reached new levels of absurdity with the hashtag #popleveson trending third worldwide! For those not following every Tweet relating to the inquiry it seems yesterday's hashtag involved coming up with "pop songs" whereby words from counsel to the inquiry, Robert Jay QC, formed part of the title to a well known pop track; however, your blogger digresses!

Judicial Cat must confess to being thoroughly entertained by the proceedings; however, as James Max of LBC 97.3 stated (in a personal capacity) the whole process is a "waste of time".

Let's all go down the Strand!

Almost every day this "circus" rolls up in Court 73 of the Royal Courts of Justice. Entrance is free, if somewhat limited, and curtains are at 10am and 2pm each sitting day! Apparently there are only 14 seats for the general public (so get there early). Of course, there is copious room for the "navel gazing" hacks. So much in fact that they have an "overflow" room whereby proceedings are relayed to a "big screen". Your blogger thinks that if there were ever an Olympics Gold Medal for useless inquiries, then Team GB would be far and above the leading contender!

What on earth is this all about?

Officially this is an inquiry into the practices and ethics of the press. It was set up in July 2011 by the Prime Minister, David Cameron, in response to the growing outrage over alleged phone hacking and other misdemeanours at the former News of the World and the parent company News International. The inquiry is looking into how the press operate and also how journalists and politicians interact. There are a number of "modules". Once any criminal inquiries into phone hacking etc have concluded then the inquiry moves on to consider those activities. Anybody who is anybody in the political and journalistic worlds have been asked to give evidence. A report is due in October 2012 on those matters not subject to criminal inquiries; however, Judicial Cat will have a "wager" at this point. As is "usual" with these inquires your blogger would be "amazed" if the inquiry reports on time!

An army of Lawyers mostly at the expense of the taxpayer! 

Your blogger declares an interest in being a member of the legal profession; however, alas, your  blogger was (somewhat surprisingly) not selected to participate in this particular "gravy train". There are the expenses of numerous junior and senior counsel, his Lordship of course, administrative support, firms of Solicitors. Last week individual members of HM Government secured core-participant status entitling each individual minister to be legally represented at the inquiry. So another eight sets of counsel and eight sets of Solicitors. And you can be sure the fees for the individual government ministers will be billed back to HM Government (in other words you the reader). In summary this is a monstrous expenditure on legal fees etc at a time when the country is supposedly having to "tighten the belt".

So what is the nation learning from the inquiry?

Judicial Cat believes nothing but the "blooming obvious". Amongst the more serious revelations is that it seems there was a possible pre-disposition by Culture Secretary, Jeremy Hunt in favour of News Corporation's abortive attempt to purchase the remaining shares in BSkyB. Now there is a strong argument for Jeremy Hunt to resign due to the obvious issues concerning his quasi-judicial role; however, no one who follows these matters could be surprised at Mr Hunt's apparent support of News Corporation. His own website described him as a "cheerleader". A long running and expensive inquiry was not needed to learn this!

Yesterday we were "treated" to the knowledge that our esteemed Prime Minister did not know what "LOL" stood for in the context of sending text messages! Apparently he thought it stood for "Lots of Love". Again, is an inquiry necessary to tell us what many already know; namely, that Mr Cameron is not exactly a "man of the people"?

The daily questions asked by leading counsel to the inquiry are hardly "incisive". A first year student at the Bar could, quite frankly, come up with them! A lot of the questions to witnesses are just wholly irrelevant and are based on gossip and a desire for a "quick headline". Some of the material being examined belongs firmly in an undergraduate history seminar!

Something had to be done so why not this inquiry!

Judicial Cat firmly believes that the correct way of handling matters would have been to restrict any inquiry to whether or not the Metropolitan Police colluded with News International to "play down" the hacking allegations and/or "cover them up". That is something, which is in the public interest and needs to be investigated. Even this aspect should have waited until any criminal investigation/proceedings had concluded. The correct forum for examining the allegations of phone hacking, corruption etc are the criminal courts. The government can then deal with any issues arising from those proceedings.

The Leveson Inquiry was set up to get Mr Cameron "out of a hole". It is the usual response of a government when facing political difficulty arising from "events dear boy" (as Harold Macmillan once called them!) The "circus" will grind on, my colleagues will continue to earn "easy money" and when it is all over ............................. the public will know absolutely nothing they already did not know!

Landlords' Surgery: - how to (correctly) serve a notice

Serving notices on your Tenant: - getting it right first time, every time

This week in Landlords' Surgery we look at the important issue of how to serve a notice on your Tenant. The main type of notices that need to be served on a Tenant are usually Notices Requiring Possession. These notices tend be called "Section 8" or "Section 21" notices in reference to the relevant sections within the Housing Act 1988. This blog post does not deal with the circumstances in which a specific notice should be used but rather how to validly serve the notice.

Relevant Legislation and Case Law

For any practitioners reading this blog post the relevant primary legislation are Sections 7, 8 and 21 of the Housing Act 1988. The key case law to be considered is: -

Wandsworth London Borough Council v Attwell (1995) 27 HLR 536

The main principle in Wandsworth is that the notice needs to be served in a manner designed to ensure it comes to the attention of the tenant.

The starting point is the Tenancy Agreement

It is a common misconception that a Landlord is entitled to simply post the notice by 1st class post, or even push it through the letterbox. The Tenancy Agreement needs to specify a method of service. Usually the agreement will state that good service is when the notice is served by Recorded Delivery (first class) pursuant to Section 196 of the Law of Property Act 1925. If this clause is not in your agreement then don't even think of attempting to serve the notice by post. In any event always use either Recorded Delivery or Special Delivery.

Service by the above method should be considered the bare minimum and only used as a last resort.

The "gold standard" is personal service on the Tenant

If you want to ensure that service of your notice is "bomb (or judge) proof" then personal service (i.e. physically handing the notice to the Tenant) is by far the best method. This requires a degree of co-operation and/or "luck". A Tenant (anticipating a notice) may simply not answer the door! I always suggest attending the property on a Sunday morning (between 9am and 11am) or a Monday evening (between 8pm and 9pm). 

If you have to post the notice through the letterbox

Next best method is to post the notice through the letterbox. If you do this then always take photographs. The notice should be held against the front door with the number showing when the photograph is taken. Make a note of the date and time as well as any distinctive features about the property or the vicinity. It is always best to try and take a witness with you when serving a notice; however, it is understood that this may not always be possible.

Certificate of Service is a must

When the time comes to commence Court proceedings then make sure you file a Certificate of Service. This is an absolute must. As well as this I will also write a quick Witness Statement explaining how the notice was served. You can find a Certificate of Service here: -

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n215-eng.pdf

I suggest keeping a copy for your own records.

The consequences of getting it wrong

Get it wrong and you will almost certainly lose your case! The Court has very limited discretion to dispense with the service of notices (no discretion at all for "Section 21" and rent arrears cases relying on mandatory ground 8). It is all to easy for a Tenant to file a Defence stating that they "never received the notice". Once that Defence is filed the Court is almost certainly adjourning (or even dismissing) your case unless you can prove that the notice was served. Don't cut corners! Making a mistake with the notice can mean that the Tenant remains in possession of the property for anything approaching a year, while you try and sort the mess out!

COMING SOON: -  how to regain possession of your property if a Tenant is in breach of their agreement!

Trading in Human Misery: - London in 2012

Guardian exposes "tenants" living in garden sheds!

A disturbing story appears in today's Guardian and I highly recommend reading it. It is an excellent report: -

http://www.guardian.co.uk/society/2012/may/09/london-landlords-desperate-tenants?mobile-redirect=false

In summary the article deals with Landlords renting out accommodation consisting of what can only be described as "sheds". This highlights the crisis in housing, which is at it's most chronic in the Capital City.

21st Century Squalor

Anyone reading the report can only be but disturbed at the conditions that families are expected to live in. Overcrowded, dangerous, and dirty these "lettings" don't come cheap! Prices are being charged that are equivalent to monthly rentals for a 2 bedroom property in the north of the UK. This demonstrates everything that is wrong with housing provision in the South East.

Time for Rent Controls

Your blogger is not an interventionist by nature; however, the time has clearly come for some sort of rent controls to be imposed. The Coalition have capped housing benefits yet the so called reduction in rents is simply not happening. Families are being moved out of the Capital en masse to new locations in the Midlands, where those affected have no local connection. Towns in the Midlands are then facing shortages of basic services due to the influx of new residents.

Judicial Cat firmly calls on the Coalition to legislate in order to "rein in" the out of control rents now seen everyday in London. If this is not done then this country faces an impending social tragedy. There will be families on the streets, it really is as simple as that. This should not even be about politics, it is a moral issue. A government should ensure it's citizens are adequately housed. They are able to do it in continental Europe, so why not in the UK?

Defend ALL Housing Possession Cases

One way of bringing this matter to the attention of those in power is for tenants facing eviction to defend EVERY case on every single possible ground. Usually possession cases are listed for no more than five minutes in the County Court. Over 95% of these cases are undefended (with the tenant not even turning up).

If only half of these cases where defended then the system would not cope. Other work in the Courts would grind to a halt. Landlords would face months (or even a year) of delay and frustration. Quite simply the government would very soon get the message!

The situation whereby housing benefits are cut but rents continue to spiral out of control cannot be allowed to remain. It is this sort of social "hand washing", which allows certain unscrupulous Landlords to trade in the "human misery" so eloquently reported in today's Guardian.

It's Time to Televise the Courts

Queen's Speech: - Crime and Courts Bill

Plans to televise the Courts

Measures just outlined in the Queen's Speech include a Crime and Courts Bill, which will include  plans to permit limited televising of the Courts in England & Wales.

Judicial Cat believes this is a long overdue reform. There is no reason whatsoever why televising the Judge's summing up in a criminal trial cannot be permitted. Sentencing should also be televised. Going one stage further, televising of all appeals in the Court of Appeal (Civil and Criminal Divisions) should be permitted. Judicial Review proceedings in the Administrative Court, which deal with important matters of public law, would also be ideal for showing the pubic the justice system in action. The Supreme Court of the United Kingdom already permits the cameras to record proceedings. 

The problem comes with the televising of criminal trials. Judicial Cat would not support any attempt to record or show witnesses giving evidence. If nothing else there runs the risk of the trial process itself becoming a form of reality television for entertainment purposes. Witnesses would be reluctant to give evidence if they knew they would be exposed on television and subject to all the stress that would inevitably involve. 

Justice must be seen to be done. The public have a right to see proceedings televised with safeguards for witnesses and other vulnerable participants.