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!